SSBV and National Disability Insurance Agency
[2017] AATA 2174
•17 October 2017
SSBV and National Disability Insurance Agency [2017] AATA 2174 (17 October 2017)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2017/2883
Re:"SSBV"
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President K Bean
Date of decision: 17 October 2017
Date of
written reasons: 13 November 2017
Place:Adelaide
The decision under review is affirmed.
..............[Sgd].....................................
Deputy President K Bean
AND THE TRIBUNAL NOTES the following undertakings given by the respondent:
(a)The respondent will undertake a plan review with a view to a new plan being in place for the applicant on or before the current plan review date of 30 October 2017;
(b)That plan will be for a six month period;
(c)The plan will include the following components:
(i) coordination of supports at the same level as the current plan, being 5.7 hours per week;
(ii) funding for 15 hours per week of one‑to‑one support for the applicant analogous to the one‑to‑one support provided to him in the 2015 plan, but on the basis that as part of the plan review, consideration will be given to how that funding is best utilised and whether some part of the relevant funds could be directed toward support in a group context for a greater number of hours; and
(iii) an allowance for speech pathology and occupational therapy, with consideration to be given during the plan review process as to how these services can best be provided to the applicant, and what level of funding is required accordingly.
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – Reasonable and necessary supports – Foetal alcohol spectrum disorder – Whether appropriate for Tribunal to extend applicant’s plan – Whether material time for the Tribunal’s decision was the date of the internal review or the date of the Tribunal’s decision – Whether the Tribunal could take into account any unexpended funds remaining in a participant’s plans – Decision under review affirmed but the Tribunal notes the respondent’s undertakings.
LEGISLATION
National Insurance Disability Scheme Act 2013, s 33, s 34
REASONS FOR DECISION
Deputy President K Bean
13 November 2017
The applicant in this matter is a 12‑year old boy with foetal alcohol spectrum disorder, Attention Deficit Hyperactivity Disorder (ADHD), conduct disorder and possible Post Traumatic Stress Disorder (PTSD) who resides in Tennant Creek in the Northern Territory (NT). He has been a participant in the NDIS since 2015, with his first plan covering the period 4 September 2015 to 2 September 2016.
That initial plan had a total value of $75,615.00, and incorporated extensive one‑on‑one support from a team of carers, who would spend time with the applicant three to four times per week for a total of 12 to 15 hours per week, including time after school and sometimes on Saturdays.
The applicant’s second plan, covering the period 6 October 2016 to 2 September 2017, significantly reduced the amount of support provided to the applicant and did not include funding for the one‑on‑one contact with carers which had been provided for in the 2015 plan. The value of that plan was only $17,510.00.[1]
[1] T‑Documents, T8.
Before the expiration of that plan, a further plan was put in place for the period 27 January 2017 until 30 October 2017, with a further reduced total value of $14,638.27.[2]
[2] T‑Documents, T9.
As she was not satisfied with the level of support provided in that plan, on 24 April 2017, the applicant’s mother made a request for internal review of that plan on his behalf. In particular, the applicant’s mother sought to have the following included in his plan:
(a)Speech therapy;
(b)Assistance with daily life at home and in the community, and education (in the form of one‑on‑one support from carers for 15 hours per week as had previously been provided);
(c)Increased social and community participation (in the form of 104 hours per year of one‑on‑one skills development and assistance); and
(d)Occupational therapy.
A reviewable decision was made in response to the applicant’s request for review on 10 May 2017. The delegate decided to affirm the applicant’s current plan, however the decision was extremely brief and provided little in the way of explanation as to why it had been decided not to provide the supports previously provided to the applicant.
After noting that funding for a behaviour management plan was included in the applicant’s plan, that an educational psychologist was funded through the NT Education Department and that the applicant’s plan also included funding for coordination of his supports, the delegate proceeded to state:
On the basis of these reasons, I have decided not to change the decision. There is currently funding in [SSBV’s] plan to support his current needs and the scheduled review is planned for July 2017 at which time we will contact you for a review conversation. To support any further diagnosis please provide any relevant medical reports and assessments.[3]
[3] T‑documents, T2/21.
As she was not satisfied with this decision, on 16 May 2017, the applicant’s mother applied on his behalf for review of the reviewable decision by the Tribunal.[4]
[4] T‑Documents, T1.
A hearing in the matter took place in Darwin on 10 and 11 October 2017, and I delivered my Decision and Reasons orally from Adelaide on 17 October 2017. On 18 October 2017, the applicant’s solicitors requested written reasons and these Reasons have been prepared in response to that request.
STATUTORY FRAMEWORK AND ISSUES
Section 33 of the National Disability Insurance Scheme Act 2013 (the NDIS Act) relevantly provides that in deciding whether or not to approve a statement of participant supports, the decision maker must “be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided”.
Section 34 also relevantly provides as follows:
34 Reasonable and necessary supports
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
In broad terms, therefore, the issue for me is whether the additional supports sought by the applicant are “reasonable and necessary”, having regard to the matters made relevant by s 34.
CONTENTIONS BEFORE THE HEARING
In its Statement of Facts, Issues and Contentions, the respondent noted that speech pathology was apparently available through the Tennant Creek Primary School, and an education psychologist was funded through the NT Education Department.[5] The respondent also noted that funding had been provided in the applicant’s plan for a specialist to implement a behaviour management plan, together with the assessment hours that this would require. The respondent also noted that having regard to the applicant’s age, “it is reasonable to expect that substantial care and support for a child is provided by the applicant’s parents and extended family”.[6]
[5] The respondent’s Statement of Facts, Issues and Contentions (“SoFIC”), [45] and [46].
[6] Respondent’s SoFIC, [54].
In addition, the respondent noted that not all of the funds allocated in the applicant’s previous plans had been expended and that there was $31,597.16 remaining in the 2015 plan, $16,969.86 remaining in the 2016 plan, and $13,503.17 remaining in the 2017 plan. Accordingly, the respondent contended that “the remaining unallocated expenditure could cover the supports claimed by the applicant”.[7]
[7] Respondent’s SoFIC, [41].
However, in the Statement of Facts, Issues and Contentions filed on behalf of the applicant, it was contended that the level of funding provided in the applicant’s current plan was “grossly inadequate”. The applicant contended that significantly more money needed to be allocated for speech pathology and occupational therapy, given the applicant’s disabilities and their functional impact, together with his remote location. In addition, the applicant contended that he “requires a high level of therapeutic support in order to overcome a plethora of social and educational barriers, and to be supported to exercise his inherent right to equality of opportunity and enjoyment of his community”.[8]
[8] Applicant’s Statement of Facts, Issues and Contentions (“SoFIC”), [27].
Those representing the applicant further contended that the significant reduction in provision of support as between the 2015 and 2016 plans had had an extremely negative impact on him, stating:
Since the reduction in NDIS plan funding, [SSBV] has disengaged from services and his relationship with support providers is highly limited (if existent at all). [SSBV’s] support provider reports that he has missed therapeutic appointments and re‑engaged in problematic behaviour.[9]
[9] Applicant’s SoFIC, [29].
The applicant also contended that given the complexity of his needs, his remote location and the limited capacity of his available services, a “high level of support coordination is essential to the effective operation of [SSBV’s] NDIS plan”.[10]
[10] Applicant’s SoFIC, [30].
The applicant pointed out that under the 2015 plan, through an organisation known as Lifestyle Solutions, the applicant received support “from a team of support workers who were well known to him”. Approximately three days per week, the applicant would be collected from school to be provided with a “support session”:
This would involve going for a walk or a drive and providing [SSBV] with support and encouragement to reflect on his day and develop skills in problem solving, emotional awareness, communication and social interaction.[11]
In addition:
Under the 2015 plan, [SSBV] also received training and skills development that included support to complete school work when he couldn’t attend school due to the challenging behaviours resulting from his disability. In these support sessions, [SSBV] was also supported to engage in practical learning such as cooking, recycling, building projects, repairing his bike, using the computer, attending the library and engaging in physical activities.[12]
[11] Applicant’s SoFIC, [36].
[12] Applicant’s SoFIC, [37].
The applicant also pointed to tangible indicators of the benefits of the support provided to the applicant under the 2015 plan, including “12 months free from engagement with the juvenile justice system” and “improved school attendance and improved behaviour whilst at school”. The applicant contended that since the removal of the supports provided in the applicant’s 2015 plan, he had:
i.Disengaged from his service providers;
ii.Disengaged from his family;
iii.Disengaged from his education – leaving school early or not attending at all;
iv.Re‑engaged with the justice system – allegedly participating in criminal activity which has attracted police attention;
v.Re‑engaged in anti‑social behaviour and behaviours of concern to his mother, support workers and education staff.[13]
[13] Applicant’s SoFIC ,[42].
EVIDENCE
The applicant’s mother provided a written statement dated 3 August 2017, and also supplemented that statement orally at the hearing.
Her evidence was to the effect that the one‑on‑one support which was funded under the 2015 plan was enormously valuable for her son. She said in her statement:
When [SSBV] first had help from NDIS he had one on one skills building … This was for helping him to start making choices, decisions, planning his time, accountability (where is he, when, and with which kids). It helped with his personal skills and communication. He also had Case coordination – to help keep plan for [SSBV] on track and to help work with me and [SSBV] together to help him.[14]
She said that when her son had the extra support provided under the 2015 plan:
He was a different boy … more settled, more friendly, talking more, trusting more, planning more, less incidents with trouble, talking to me more, more interested in planning to go out bush, on holiday, better at making things, better at skateboard, paddleboard, scooter, bike, stronger, seemed to have more energy sometimes. He talked about good things he does with his support worker. When he was with Lifestyle Solutions, it slowed him down from hanging with mates. He was more stimulated with learning new things. He was always happy, always had a smile on his face. He was more polite.
[SSBV] was learning how to read, send text messages to family, play computer games. He was learning how to speak up for himself and understand why he thinks like that. He would go on activities – have a picnic at water holes, dams and going into the bushland.
He was learning the aboriginal and non‑aboriginal way. He was learning about our culture and how to be respectful and responsible to the family, to mother, uncle and other family. He was learning how to set up an email, and understand why it was important to go to school, and learn about geography, history, science, math, English. He was learning how to speak to non‑Aboriginal people and give them respect. Slow down with his speaking. He was enjoying the routine he had.[15]
She also said:
Since those supports were removed he has gone backwards. It’s been hard. He often sleeps at a mate’s house. I’m always concerned about him.[16]
[14] Statement of applicant’s mother, [20].
[15] Statement of applicant’s mother, [24]‑[26].
[16] Statement of applicant’s mother, [27].
The applicant’s mother’s evidence was consistent with the oral evidence given at the hearing by a former Manager at Lifestyle Solutions, who will be referred to in these Reasons as Ms C.[17]
[17] Using this person’s name may identify the applicant, contrary to a confidentiality order made in this matter.
Ms C has 32 years of experience with working with people with disabilities and is currently undertaking a Master’s program in Narrative Practice and Community Work. As mentioned above, she previously held the position of Manager with Lifestyle Solutions and met the applicant and his family while she was in that role. She acted as the coordinator for the applicant’s supports from approximately October 2015 until February 2017. She ceased working for Lifestyle Solutions in May this year.
Ms C indicated during her oral evidence that as from approximately August this year, the applicant had in fact been living with her at her home. She said the need for this arose when the applicant’s mother needed to leave Tennant Creek for medical treatment and at around the same time the applicant needed a single address for the purpose of bail conditions. This combination of circumstances led to the situation whereby, with his family’s consent, the applicant commenced living with Ms C. Although this arrangement is intended to persist at least for as long as the bail condition remains, it is only intended to be a temporary arrangement. The bail conditions relate to a number of charges against the applicant, for stealing and property damage. However, it is hoped that he will be redirected by the Court into a youth diversion program.
Having previously performed the role of support coordinator for the applicant, Ms C was asked a number of questions about what this involved. She said the role was extremely time‑consuming and had many facets. She said that being in a remote location also added complexity to the role, and there were also cultural aspects to be taken into account. She explained that whilst she was performing the role during the currency of the applicant’s 2015 plan, she would only invoice an average of two to two and a half hours per week as that was all that was allowed for in the budget. However, in reality the role occupied more like five to eight hours per week, given the applicant’s complex needs. She referred to many activities and conversations which were required as part of this role, ranging from the most obvious things, such as organising medical appointments, to liaising with the applicant’s school in the context of a 20 day detention, and working with his family and support workers.
With respect to the current situation, her view was that coordination of supports of about five hours per week was still required. She acknowledged that she was currently performing some aspects of this role but said she needed to be able to work fulltime and was not able to do this currently because of the attention the applicant requires. She also said she needed to be able to devote as much time as possible to providing direct support to the applicant, and it would be far preferable if the support coordination role was performed by someone else, with input from her. Her evidence was to the effect that an additional five hours per week was required in addition to the one to two hours per week that she was able to provide on an ongoing basis.
Ms C was also asked about the benefits of the 15 hours per week one‑on‑one support provided to the applicant under the 2015 plan. Her evidence was to the effect that this was enormously beneficial to him and both complemented and supported what he was learning at school. She mentioned that during the time he was with the support workers, the applicant would undertake various practical activities, such as a building project, cooking, learning about money, going shopping, as well as more fun activities, such as learning how to skateboard. She said that while he had this support he became much less aloof and was more willing to lean on a range of supports. He was able to undertake trips into country, trying to find mussels and birds’ eggs and hunting, as he was supported to do this and invite others along. He also learnt about consequences and the impact of his disability upon him. He saw the value of this and would listen to his male support workers at times more than to his mother or Ms C.
As to how the applicant had changed since he no longer had this support, she described how he had reverted to the way he was when she first knew him. She said he was more “free‑ranging” and “drifting”. She said others would take advantage of him and he was more at risk. She commented that the loss of the structure provided by this support in itself had had a significant impact on the applicant, who did not have the skills to generate structure for himself. She said the support had helped to keep him “on track and engaged”, but now he did not have that. She also commented that when he lost this structure, the applicant stopped communicating to the same extent and began picking fights more often when he was teased. She said he started not wanting to go to school again and also leaving school when he got there. She also mentioned that her understanding from doctors and other experts who had assessed the applicant was that without the right supports, he was at significant risk of becoming a young adult in contact with the justice system. She pointed out that during the life of the 2015 plan the applicant did not have any involvement with the police.
In terms of the main priority for the applicant in the short term, Ms C said she saw this as reinstatement of one‑on‑one support of the kind provided under the 2015 plan. Her evidence was to the effect that 15 hours a week provided in blocks of about three hours after school would still be appropriate and work well for the applicant. She said this would also work well at times when the applicant was sent home from school early, as the support worker could ensure that he spent the balance of the school day on learning based activities. She said she currently did this but could not continue doing so, given her need to work fulltime.
Under cross-examination, Ms C conceded that the current plan provided for coordination support of about 5.5 hours per week and she agreed that this was a reasonable allowance for support coordination currently. She also agreed that it was never envisaged that the applicant would need one‑to‑one paid support on an ongoing basis. She agreed that it had been expected that at some stage there would be a transition from supporting the applicant on a one‑to‑one basis to involving the applicant in group activities and then facilitating his participation in the community. Given that there are other NDIS participants in Tennant Creek, she also acknowledged the possibility of support being provided in a group setting with resources being pooled so that a support worker was funded to be focused on more than one child. She acknowledged that “there was never the view that one‑to‑one support would continue forever”.
Ms C also acknowledged that the applicant had shown more consistency in his behaviour since living with her, but pointed out that he still faced many difficulties. Just one of them was that he frequently left school without being signed out, or the school requested that he be excluded for the balance of the day. She further confirmed that she thought at the moment 15 hours of one‑to‑one support would be sufficient. However, she alluded to the possibility that these resources might go further and be used even more appropriately if funding could be pooled between NDIS participants to some degree in a creative way so as to share supports, and this may also be more appropriate for the applicant, given he was now 12 and attending High School.
She subsequently indicated that the additional 104 hours of support included in the applicant’s 2015 plan would also be extremely beneficial to him now, particularly to support him in his high school environment and provide an interface between him and his school.
SUBMISSIONS AT THE HEARING
Much of the oral evidence given at the hearing by Ms C and the applicant’s mother was not the subject of any advance notice to the respondent, and I should acknowledge the cooperative and appropriate manner in which the respondent allowed that evidence to be given without objection, and responded to it. Having heard that evidence, the respondent also significantly modified the position which it had previously taken as reflected in its Statement of Facts, Issues and Contentions. Again, in my view, this was appropriate and consistent with its obligations as a model litigant.
The position ultimately adopted by the respondent was that noting the applicant’s current plan was due to expire on 30 October this year, and there were significant unexpended funds still available under that plan, the Tribunal should affirm the decision under review on the basis of certain undertakings given by the respondent. The undertakings offered were as follows:
(a)The respondent would undertake a plan review with a view to a new plan being in place for the applicant on or before the current plan expired on 30 October 2017;
(b)That plan would be for a six month period;
(c)The plan would include the following components:
(i)coordination of supports at the same level as the current plan, being 5.7 hours per week;
(ii)funding for 15 hours per week of one‑to‑one support for the applicant analogous to the one‑to‑one support provided to him in the 2015 plan, but on the basis that as part of the plan review, consideration would be given to how that 15 hours per week is best utilised and whether some part of the relevant funds could be directed toward support in a group context for a greater number of hours; and
(iii)an allowance for speech pathology and occupational therapy with consideration to be given during the plan review process as to how these services can best be provided to the applicant, and what level of funding is required accordingly. Consideration may be given to splitting the cost of one or more professionals travelling to Tennant Creek between a number of NDIS participants, if that was found to be the most practical way of delivering these services to NDIS participants in Tennant Creek including the applicant.
In support of his submission that there were unexpended funds still available to the applicant under the current plan, the solicitor for the respondent, Mr Dubé, relied upon a statement of an employee of the respondent, Ms Wendy East, dated 11 October 2017, which indicated that currently out of the $14,638.27 allowed for the applicant’s current plan, $13,503.37 remained, with the only funds claimed being $1,134.90 with respect to support coordination. He also referred to records summonsed from the applicant’s previous support provider Lifestyle Solutions, which indicated that there were no records of any support being provided or invoices issued during the currency of the current plan. On that basis, Mr Dubé submitted that the Tribunal could be confident that the funds remaining in the applicant’s current plan were sufficient to meet any needs he may have during the remainder of his plan, that is up until 30 October 2017, including for one‑to‑one support, and consequently there was no need to vary that plan.[18]
[18] It was implicit in Mr Dubé’ submission and the respondent’s Statement of Facts, Issues and Contentions that from the respondent’s perspective, there was no impediment to the applicant spending the funds remaining in his 2017 plan on any of the supports he was now seeking.
Notwithstanding the concessions made by the respondent and the evidence relied upon with respect to the unexpended funds in the applicant’s current plan, those representing the applicant took a very different position.
With respect to the unexpended funds issue, counsel for the applicant, Ms Martin, relied upon an email from Mr Timothy Taylor of Lifestyle Solutions dated 22 September 2017. This indicated that there were “outstanding payment amounts” of $21,100 (26 invoice items) for the applicant “dating back to November 2016”. The email further indicated “there is a range of reasons these balances remain outstanding, admittedly some of the issues are system issues within Lifestyle Solutions”. Mr Taylor and Ms Martin also made reference to computer and other problems encountered by the NDIS, including problems with the NDIS portal.
Ms Martin accordingly contended that it was not clear on the material before the Tribunal that there were unexpended funds remaining with respect to the applicant’s current plan. Further, and in any event, she submitted that the Tribunal had jurisdiction to extend the plan for a further six months and it was appropriate that the Tribunal should do so, and that it should include supports in that extended plan analogous to the supports in the applicant’s 2015 plan.
Both parties agreed that I should first consider whether it was appropriate to extend the applicant’s current plan before determining the other issues in the application. They further agreed that if I was minded to extend the plan, it would be appropriate to invite further submissions as to the specifics of the extended plan.
CONSIDERATION
Should the current plan be extended?
The respondent conceded, and I also accept, that I do have jurisdiction to extend the date of the applicant’s current plan. However, the issue is whether it is appropriate in all the circumstances for me to do so.
Having considered this issue, I have concluded that it would not be appropriate for me to extend the applicant’s current plan in all of the circumstances. Those circumstances include the fact that there are many uncertainties currently surrounding the applicant’s needs over the next six months, and how these can best be met. He is currently residing with Ms C, but only on a temporary basis. He is the subject of criminal charges, which are likely to lead to him being placed in a diversionary program in the context of which particular supports may be needed to ensure his compliance with that program. I note on the evidence that a possible consequence of his failure to comply with the diversionary program may be that he would be detained in the Don Dale Detention Centre.
Other uncertainties include those surrounding the extent to which it may be possible for support to be provided to the applicant in the context of pooling resources with other NDIS participants so as to enable relevant professionals to attend Tennant Creek with a view to providing services needed by the applicant, such as speech pathology and occupational therapy. In my view, it would be extremely worthwhile for this to be explored, and it may turn out to be the best way of ensuring that these services are provided to the applicant.
Similarly, I note that it would appear worthwhile for consideration to be given to the extent to which some support can be given to the applicant in a group context, which may be more appropriate for him now that he is older, and may result in more hours of support being able to be provided to him overall. I note in this context the respondent’s express concession that consideration of an approach of this kind may well have the result that the applicant was provided with more than 15 hours support each week, albeit that the additional support, or some of it, may be provided in a group context rather than on a one‑on‑one basis.
These are not matters which I am in a position to fully explore or make appropriate allowances for in the context of any extension to the applicant’s current plan. However, they are things which can be taken into account and allowed for in the plan review process leading to a new plan being formulated by 30 October 2017, and any subsequent adjustments to the applicant’s plan.
Of course, an important part of the context in which I am considering the possible extension of the applicant’s current plan also includes the undertakings given by the respondent, which, in my view, are consistent with the evidence and give me confidence that the applicant’s next plan is likely to include supports which are reasonable and necessary for him, having regard to the evidence before me, including the oral evidence of Ms C and the applicant’s mother.
In considering whether I should extend the plan, I have also taken into account the likely difficulty for me in formulating the specifics of an extension to the applicant’s current plan of six months on the basis of the limited information which is currently available to me, or which is or likely to become available to me in the short term. I am mindful that the plan review process is likely to be a quicker and more effective way of assessing and providing for the applicant’s ongoing needs. I could only formulate any extended plan based on further submissions and evidence from the parties, which would be likely to take some weeks to provide. Further, even if I did attempt to proceed in this way, the Tribunal could not replicate all aspects of the plan review process, and would be at risk of delivering an inferior as well as slower outcome to the applicant.
I have therefore decided that the preferable course is to allow the plan review process to proceed such that a new six month plan will be in place for the applicant within approximately the next two weeks which will reflect his current needs, and be formulated in consultation with his mother and Ms C. I have concluded that this is likely to lead to a better outcome than the Tribunal attempting to formulate an extended plan on the basis of submissions and evidence from the parties, noting that this process would also be likely to take longer than the plan review process.
In view of his current situation, the applicant urgently needs restoration of supports similar to those that were provided to him during the 2015 plan. It would not be appropriate for the Tribunal to be the cause of a significant delay in provision of these supports, particularly in circumstances where an extended plan formulated by the Tribunal may well be less tailored to his current needs and circumstances than one emanating from the contemplated review process.
The unexpended funds issue
In light of that conclusion, the scope of my decision is relatively narrow. In practical terms, the issue before me is whether there should be any change to the applicant’s current plan, noting that that plan will expire and will have been replaced by another plan in two weeks’ time. Highly relevant to this issue is the question of whether or not there are unexpended funds currently available to the applicant.
With respect to that issue, I acknowledge the email of Mr Taylor. However, having regard to the statement of Ms East and the summonsed records produced by Lifestyle Solutions, I am satisfied, on balance, that the applicant has access to funds under his current plan that have not yet been expended. Indeed, it appears that there are funds remaining available in each of the categories for which funding was provided under his current plan.
The email provided by Mr Taylor suggests on one view that Lifestyle Solutions has incurred expenses or delivered services to the value of $21,100 to the applicant in the period since November 2016. However, there are other interpretations of this email available, and the records produced by Lifestyle Solutions do not reflect any work being done with respect to the applicant during the period of his current plan. I note Ms C gave evidence that she was aware of some coordination of support work being done earlier this year, which is consistent with the NDIA records referred to by Ms East, and tends to corroborate the respondent’s position. Further, as Mr Dubé pointed out, if indeed Lifestyle Solutions had rendered services to the applicant to the value of $21,100 since November 2016, they would probably have delivered services in excess of what is allowed for in his 2017 plan, which seems unlikely.
To summarise, I have found Mr Taylor’s email very difficult to interpret in the absence of further explanation, and it does not satisfy me that Lifestyle Solutions has provided services to the applicant during the currency of his current plan to the extent that the funds available under that plan, or most of them, have been allocated or expended. I have therefore concluded, based on the limited information I have, that funds allocated under the applicant’s 2017 plan remain available to him, and are sufficient to cover any of the reasonable and necessary supports he may require during the remaining life of his current plan, including one‑on‑one support, support coordination, occupational therapy, speech pathology or any other support he may require over the next couple of weeks. In these circumstances, I have concluded that there is no need to vary the applicant’s current plan.
In reaching that conclusion, I should acknowledge that I have given consideration to a submission made on behalf of the applicant by Ms Martin to the effect that the material time for the Tribunal’s consideration of the decision under review was the time that the internal delegate reconsidered the original plan, namely 10 May 2017. In the alternative, Ms Martin submitted that the material time was the time of the Tribunal’s decision. Mr Dubé submitted that a consideration of the statutory framework and the purpose of the NDIS Act suggested that a flexible and evolving approach was required, such that the material time on review of an NDIS plan must be the time at which the internal reviewer (or the Tribunal) was considering the plan.
Although I have had limited time to reflect upon and consider this issue, I have concluded that the analysis for which Mr Dubé contended is persuasive. As I observed during the hearing, on reflection, it would be an odd result if in the context of reviewing a plan at the request of an applicant, regard could not be had to the changed needs or circumstances of the applicant. This would be likely to lead to perverse consequences at odds with the intention of the NDIS Act. For example, as Mr Dubé pointed out, it could lead to a situation where an applicant had incurred certain expenses during the current life of a plan for which they sought to be reimbursed, but consideration could not be given to those expenses because they were incurred after the date of commencement of the plan, or after it was internally reviewed.
As I have concluded that the material time for the Tribunal’s purposes is the time of its decision, I have further concluded that it is appropriate for me to have regard to the funds remaining available to the applicant during the life of his current plan, and whether these will cover the reasonable and necessary supports he requires during the period remaining before the plan expires. Indeed, it would be an odd position, in my view, if I could not have regard to those matters, which are relevant as a matter of common sense and prudence.
I should also acknowledge the applicant’s submission that the Tribunal should conduct a meaningful review of the relevant plan and the applicant is entitled to the benefit of any conclusion by the Tribunal that a greater level of support should have been provided to him from the outset of his plan.
In particular, the applicant submitted that the evidence supported a conclusion that from the outset of his current plan, in the order of eight hours per week should have been provided by way of coordination of support. The applicant also contended that a higher level of support analogous to that provided in the applicant’s 2015 plan should have been provided with respect to speech and occupational therapy, and that a total of least 17 hours per week of one‑to‑one support should have been provided to the applicant from the outset of his current plan. In essence, the applicant contended that the supports provided to the applicant in his 2015 plan should have been continued rather than being reduced as they were.
With respect to the proposition that the Tribunal should now review the applicant’s plan in its entirety and determine what supports the plan should have contained at the outset, I am not persuaded that it is open to or appropriate for me to do this.
As I have sought to explain, if, as I have found, the relevant time for me to consider the appropriateness of the applicant’s plan is the date of my decision, I must have regard to the fact that the plan now has less than two weeks to run before the review date, and that a new plan will be in place on or before that date. In those circumstances, and where there are substantial unexpended funds allocated against the current plan, no practical purpose would be served by me either replacing the current plan with a different plan of the same duration but with additional supports, or varying the plan to provide for extra supports during the remaining two weeks of the plan. As neither of these outcomes would be of any practical benefit to the applicant, I have decided that the appropriate decision for me to make is that advocated for by the respondent, namely to affirm the decision under review but note the undertakings given by the respondent with respect to the applicant’s next plan.
As to the level of support which should have been provided however, in general terms, on the evidence before me, I agree with the position advanced on behalf of the applicant, and I also note the position now taken by the respondent is broadly consistent with it. In particular, it is clear that since the expiry of the 2015 plan, the applicant has continued to need intensive one‑on‑one support of the kind previously provided to him and in the order of at least 15 hours per week. Unfortunately, it appears that he has regressed in the absence of that support, which has been a significant setback for him. It is clear that the withdrawal of the support previously being provided to him and which was enormously beneficial, has undone some of the positive effects of that support, such that some of the investment represented by that support has been thrown away, because the gains made as a result of it were not built upon or consolidated.
I note since the withdrawal of those supports, the applicant has had further engagement with the criminal justice system and is now at risk of being detained in the Don Dale detention centre. It is impossible to say what role the withdrawal of the supports previously being provided have played in this, but it is clear that the withdrawal of supports has had a negative impact on the applicant, and increased the functional impact of his disabilities on him. The withdrawal of those supports may well have the consequence that it will be much harder to engage the applicant with supports once again than it would have been to keep him engaged, with ongoing consequences for the applicant himself, his family and the broader community.
The applicant is extremely fortunate that Ms C has, to some degree, on an unpaid basis, stepped into the breach and attempted from her own personal resources to fill the gap left by the withdrawal of appropriate support under the NDIS. I have no doubt that if she had not done this, the applicant would be in an even worse position now than he is currently. However, as she made clear in her evidence, the current situation whereby she is providing semi-professional support to the applicant out of her own personal resources whilst attempting to work fulltime is not sustainable, and it is imperative that appropriate paid support be restored to the applicant as soon as possible. Based on the assurances given by the respondent, I trust that this will occur in the form of a new plan for the applicant which will come into effect by the end of this month, and hopefully lead to the applicant re-engaging with appropriate paid supports.
DECISION
The decision under review is affirmed.
AND THE TRIBUNAL NOTES the following undertakings given by the respondent:
(a)The respondent will undertake a plan review with a view to a new plan being in place for the applicant on or before the current plan review date of 30 October 2017;
(b)That plan will be for a six month period;
(c)The plan will include the following components:
(i)coordination of support at the same level as the current plan, being 5.7 hours per week;
(ii)funding for 15 hours per week of one‑to‑one support for the applicant analogous to the one‑to‑one support provided to him in the 2015 plan, but on the basis that as part of the plan review, consideration will be given to how that funding is best utilised and whether some part of the relevant funds could be directed toward support in a group context for a greater number of hours; and
(iii)an allowance for speech pathology and occupational therapy, with consideration to be given during the plan review process as to how these services can best be provided to the applicant, and what level of funding is required accordingly.
I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean
..........[Sgd].......................................
Associate
Dated: 13 November 2017
Date(s) of hearing: 10, 11 and 17 October 2017 Counsel for the Applicant: Ms L Martin Solicitors for the Applicant: Northern Territory Legal Aid Commission Advocate for the Respondent: Mr B Dubé Solicitors for the Respondent: Sparke Helmore Lawyers
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