SPLC and CEO, National Disability Insurance Agency (NDIS) - [2025] ARTA 74

SPLC and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 74 (6 February 2025)
Applicant:SPLC
Respondent:  CEO, National Disability Insurance Agency
Tribunal Number:                2023/6659

Tribunal:Deputy President K Dordevic
Place:Perth
Date:6 February 2025
Decision:The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration with directions that the following reasonable and necessary supports are to be funded under the National Disability Insurance Scheme:

1. Core supports:
1.1 Assistance with self-care and daily activities:
(i)6 hours per day of 2:1 assistance with self-care (7 days per week, 48 weeks per year, totalling 2,016 hours per year), with the support workers funded at high intensity rate;
(ii)2 hours per day of 1:1 assistance with self-care (7 days per week, 48 weeks per year, totalling 672 hours per year), with the support worker funded at high intensity rate;
(iii)1:1 inactive overnight support per night (7 days per week, 48 weeks per year);
(iv)the Applicant’s existing funding for assistance with social and community participation be maintained but the care ratio be modified to comprise:
(a)Saturday: 5 hours per week, 40 weeks per annum at 2:1 ratio (totalling 10 hours per week of funding); and
(b)Weekdays during school holiday periods at 6 hours per day at a 1:1 ratio when attending ‘Group Activities in a Centre’.

(v)The existing 28 days of STA and Assistance (including respite) be maintained but the care ratio be modified to comprise:
(a)Weekdays: an additional 4 hours per day of assistance with a 2:1 ratio for activities involving self-care;
(b)Saturdays: an additional 4 hours per day of assistance with a 2:1 ratio for activities involving self-care;

(c)Sundays: an additional 4 hours per day of assistance with a 2:1 ratio for activities involving self-care.

2. Capital supports are to include:
2.1 Provision of a commercial front load washing machine subject to the provision of two valid quotes.
3. Plan management and review
3.1 All other reasonable and necessary supports in the 14 February 2024 statement of participant supports (excluding any one-off assistive technology already funded) shall be replicated; and

3.2 the reassessment date is 12 months after the day on which the above reasonable and necessary supports are included in the Applicant’s statement of participant supports.

........................................................................
Deputy President K Dordevic
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – participant supports – reasonable and necessary supports – whether the requested supports are NDIS supports – whether the supports are most appropriately provided by the NDIS or by other support services – Special Disability Accommodation – 24/7 support at 2:1 ratio – Level 3 nurse – high intensity support worker – reimbursement of modifications to wheelchair accessible vehicle – commercial washing machine – specialised laundry detergent
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024
National Disability Insurance Scheme (Getting the NDIS Back on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SPLC and CEO, National Disability Insurance Agency (NDIS)

Details

AGLC: SPLC and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 74
Case: [2025] ARTA 74
Decision Date: 6 February 2025

CaseChat Overview and Summary

The case of SPLC and CEO, National Disability Insurance Agency (NDIS) involves the determination of whether certain requested supports are reasonable and necessary for a participant under the National Disability Insurance Scheme (NDIS). The dispute centred around whether these supports are appropriately funded by the NDIS or should be sourced from other support services. The requested supports included 24/7 assistance at a 2:1 ratio, services of a Level 3 nurse, high intensity support workers, and reimbursement for modifications to a wheelchair accessible vehicle, among others. The matter was brought before the court to decide on the eligibility and necessity of these supports.

The key legal issues that the court had to address were whether the supports requested by the applicant were reasonable and necessary NDIS supports, if the applicant met the eligibility criteria for Special Disability Accommodation (SDA), and if so, whether the SDA supports requested were reasonable and necessary. The court had to consider the Support Rules and relevant legislation to determine the appropriateness and necessity of the requested supports.

The court found that the requested supports were reasonable and necessary for the applicant. The decision was based on the specific needs of the applicant and the legislative criteria set out in the NDIS Act and SDA Rules. The court directed that the supports, including 24/7 assistance, high intensity support workers, and the provision of a commercial washing machine, should be funded under the NDIS. Additionally, the court mandated that the reassessment date for the participant's plan be set to 12 months from the date of the decision.

The final orders included the funding of the requested supports and a reassessment date of 12 months from the decision date, ensuring that the participant's needs are met within the framework of the NDIS.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As to the duration of the Applicant’s plan, as amended by this decision, I consider it appropriate that it be reviewed in 12 months’ time. DECISION For these reasons I set aside the decision under review and remit the matter to the Respondent for reconsideration with directions that the following reasonable and necessary supports are to be funded under the National Disability Insurance Scheme:1. Core supports:1.1 Assistance with self-care and daily activities:(i)6 hours per day of 2:1 assistance with self-care (7 days per week, 48 weeks per year, totalling 2,016 hours per year), with the support workers funded at high intensity rate;(ii)2 hours per day of 1:1 assistance with self-care (7 days per week, 48 weeks per year, totalling 672 hours per year), with the support worker funded at high intensity rate;(iii)1:1 inactive overnight support per night (7 days per week, 48 weeks per year);(iv)the Applicant’s existing funding for assistance with social and community participation be maintained but the care ratio be modified to comprise:(a)Saturdays: 5 hours per week, 40 weeks per annum at 2:1 ratio (totalling 10 hours per week of funding); and(b)Weekdays during school holiday periods at 6 hours per day at a 1:1 ratio when attending ‘Group Activities in a Centre’.(v) The existing 28 days of STA and Assistance (including respite) be maintained but the care ratio be modified to comprise:(a)Weekdays: an additional 4 hours per day of assistance with a 2:1 ratio for activities involving self-care;(b)Saturdays: an additional 4 hours per day of assistance with a 2:1 ratio for activities involving self-care;(c)Sundays: an additional 4 hours per day of assistance with a 2:1 ratio for activities involving self-care.2. Capital supports are to include:2.1 Provision of a commercial front load washing machine subject to the provision of two valid quotes;3. Plan management and review3.1 All other reasonable and necessary supports in the 14 February 2024 statement of participant supports (excluding any one-off assistive technology already funded) shall be replicated; and3.2The reassessment date is 12 months after the day on which the above reasonable and necessary supports are included in the Applicant’s statement of participant supports.

Ratio Decidendi

Legal Principle Established

Therefore, the issues before the Tribunal are whether:(a)the supports sought by the Applicant, set out in paragraph 34, are reasonable and necessary NDIS supports for the Applicant for the purposes of section 33 and subsection 34(1) of the Act, having regard to the Support Rules; (b)the Applicant is eligible to receive support for SDA pursuant to section 11 of the SDA Rules; and(c)if the Applicant meets the eligibility criteria for SDA, whether the SDA supports sought by the Applicant, as set out in paragraph 35 above, are reasonable and necessary supports for the purposes of section 33 and subsection 34(1) of the Act, having regard to the Support Rules.CONSIDERATIONWhat supports are currently provided?38.The Applicant’s current plan 12-month, dated 14 February 2024, comprising the following supports: [17][17] A44, folios 400 to 414(a) Core supports in the sum of $208,089.07:(i) $1,865.97 for personal continence products including activity related productsand protectors to maintain health, wellbeing and participation in communityactivities;(ii) $4,418.90 to fund assistive technology (AT), to buy low cost AT, rental,maintenance and minor repairs to the AT;(iii) $183,380.20 for supports to enable maximum independence in personalactivities of daily living (flexible funding), calculated to include:(A) assistance with self-care activities - Standard - Weekday Daytime:4 hours x 246 days;(B) assistance with self-care activities - Standard – Saturday: 4 hrs perweek x 40 weeks;(C) assistance with self-care activities - Standard – Sunday: 4 hours perweek x 40 weeks;(D) assistance with self-care activities - Standard - Public Holiday: 4 hours per day x 11 days;(E) Short term accommodation (STA) and assistance (including respite) - 1:1 – Weekday: 4 days per year(F) STA and assistance (including respite) - 1:1 – Saturday: 12 days per year;(G) STA and assistance (including respite) - 1:1 – Sunday: 12 days per year.(iv) $18,424[18] for assistance with social and community participation, calculated to include:[18] A58, folio 443(A) access community social and recreational activity - Standard – Saturday: 5 hours per week x 40 weeks.(b) Capacity building funding in the sum of $55,664.32 comprising:(i) Improved life choices: $1,485.75 by way of supports to set up, develop andprocess monthly statements, purchase a range of funded supports andstrengthen informal supports;(ii) Improved daily living: $31,059.72 having been calculated to include:(A) $6,983.64 for occupational therapy, including funding for afunctional capacity assessment;(B) $11,680.24 for physiotherapy;(C) $1,939.90 for an orthotist to assess and make recommendations;(D) $1,939.90 for an orthoptist to complete a functional assessment of vision to support engagement in activities of daily living and social andcommunity participation;(E) $1,532.40 for assessment and training by a clinical nurse consultant forcontinence and disability health related supports (DHRS) to recommendcontinence and DHRS;(F) $1,136.94 for a podiatrist to assess and make recommendations inrelation to foot, ankle and lower limb health.(c) Improved relationships: $14,447.15 comprising:(i) 45 hours of specialist behaviour intervention support;(ii) 20 hours of behaviour management plan and training in behaviour managementstrategies(d) Support coordination: $8,671.70 calculated to comprise:(i) 35 hours of support coordination (Level 3: Specialist support coordination); and(ii) 20 hours of support coordination.What supports does the Respondent propose?39.The Respondent submits that it is willing to fund a 12-month NDIS plan to provide the following supports on the basis that they meet legislative test set down in subsection 34(1) of the Act:[19][19] R5, folios 569 to 570(a)4 hours per day of 2:1 assistance with self-care (7 days per week, 52 weeks per year, totalling 1,460 hours per year), with the support workers funded at high intensity rate;(b)2 hours per day of 1:1 assistance with self-care (7 days per week, 52 weeks per year, totalling 730 hours per year), with the support worker funded at high intensity rate;(c)1:1 inactive overnight support per night (7 days per week, 52 weeks per year);(d)The existing 28 days of short-term accommodation (STA) be maintained but the care ratio be modified to comprise:(i)Four weekday per annum of STA and Assistance (including respite) at a ratio of 1:1, with an additional 4 hours per day of self-care assistance at a ratio of 2:1;(ii)Twelve Saturdays per annum of STA and Assistance (including respite) at a ratio of 1:1, with an additional 4 hours per day of self-care assistance at a ratio of 2:1;(iii)Twelve Sundays of STA and Assistance (including respite) at a ratio of 1:1, with an additional 4 hours per day of self-care assistance at a ratio of 2:1.(e)convert the Applicant’s existing funding for 5 hours per week for assistance with social and community participation to a 2:1 ratio calculated as follows:(i)Access Community Social and Recreational Activity - Standard – Saturday: 5 hours per week x 40 weeks at a 2:1 ratio (10 hours per week); and(ii)during school holiday weekdays: 6 hours per day at a 1:1 ratio for ‘Group Activities in a Centre’, so that a day program may be accessed on school holidays.(f)The management of the support budgets in the Applicant’s plan is to remain the same as the management of the support budgets in the Applicant’s plan dated 14 February 2024.(g)Except for the above specified supports the reasonable and necessary supports in the existing SOPS should be provided, on a pro rata basis, for the period from the review date until the varied review date (excluding any one-off assistive technology supports already used).The disputed supports