Stephenson and National Disability Insurance Agency

Stephenson and National Disability Insurance Agency [2019] AATA 4059 (1 October 2019)
Division:National Disability Insurance Scheme Division
File Number(s): 2018/3160
Re:Setten Stephenson
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:1 October 2019
Place:Sydney

The decision under review is set aside and the matter is remitted for reconsideration with the recommendations that the Agency:
·fund a survey including the area of proposed Option 1 and the area where the grounding occurs at the top of the driveway, and
·do what is necessary to determine the cost of work required for Option 1 and to remedy the grounding problem at the top of the driveway (the work) and whether the work can be carried out according to law, and, if,
·the cost of the work is determined to be less than $60,000 and the work can be carried out according to law,
·decide to fund the work because it meets all the criteria in section 34 of the Act.

………………………[SGD]…………………………..
Mrs J C Kelly, Senior Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – Applicant seeks funding for driveway modifications – whether supports relate to the Applicant’s disability – Applicant able to walk and drive up and down driveway prior to stroke - lost mobility and independence as result of stroke - dependent on carers and family to access community – limited type of vehicles can access driveway because of grounding at the top and/or bottom of the driveway - driveway modifications relate to Applicant’s disability - whether proposed drive way modifications represent value for money – no survey available – Tribunal not able to be satisfied as to feasibility or cost of proposed modifications – proposed modification did not include all necessary modifications to the driveway - decision set aside and remitted with recommendations made
LEGISLATION
Administrative AppealsTribunal Act 1975 (Cth) s 43(1)(c)(ii)
National Disability Insurance Scheme Act 2013 (Cth) ss 100(6), 33(2), 34(1)(c)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 rr 2.5, 3.1(a), 5.1(b), 5.1(d)
CASES
Commonwealth of Australia v Beale (1993) 30 ALD 68
SECONDARY MATERIALS
Australian/New Zealand Standard Parking facilities 2890.1:2004
Driveway and Vehicle Crossings Northern Beaches Council
NDIS Operational Guideline – Including specific types of supports in plans Part 5
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
1 October 2019
Background

Before 25 July 2016, Mr Stephenson went camping, cycling, mountain biking, scuba diving, was a scout leader, and worked for a marine insurance company. He cycled to and from work. On that day Mr Stephenson suffered a stroke which caused right-sided hemiplegia. He was 45 years old. He was discharged from Royal Ryde Rehabilitation in December 2016 to outpatient rehabilitation at Mt Wilga. On 14 May 2017, he fell and fractured the neck of his right femur. He was hospitalised and underwent further rehabilitation. His mobility was reduced. He was home for Christmas 2017.
Mr Stephenson generally uses a manual wheelchair for mobility but can walk indoors over short distances using a forearm support frame. At the present time he does not drive, although his goal is to get his licence again. If he wishes to or needs to go out, family members or carers drive him.
Mr Stephenson is seeking funding under the National Disability Insurance Scheme (the Scheme) for modifications to his driveway. His home sits below street level. Vehicles have to traverse a steep driveway to access and leave the property. The underneath of some types of vehicles ground on the driveway where the grade changes at the bottom of the driveway outside the double garage. The underneath of some types of vehicles ground on the driveway where it joins the footpath near the road.
Mr Stephenson gets into a vehicle when it is parked on a slope at the bottom of the driveway outside the garage. The vehicle must be able to accommodate Mr Stephenson and his wheelchair.
Mr Stephenson’s Support Co-ordinator identified “the driveway access” to be “a massive barrier” to his “quality of life and immediate safety” around 2 August 2016. She wrote that he has had difficulty getting carers who can navigate the driveway and is concerned about what happens to him if there is a fire or if he needs an ambulance. Before he had his stroke, friends parked on the roadway and walked down to his home. He would like to have the independence he had before he suffered the stroke.
On 12 October 2017, Ms Christel, occupational therapist completed a Complex (Structural) Home Modification Assessment Template which included the proposed driveway modification. Mr Burgess, builder, was the building construction professional who reviewed the proposal. He signed the document on 29 November 2017.
Ms Christel proposed construction of a 6 metre by 3.5 metre level hardstand area in front of the house, accessed via a ramp and transition area from the left of the existing driveway. The proposal would enable a vehicle to drive in, park on the level area where Mr Stephenson can safely get in and out of the vehicle, reverse up to the garage and drive up the driveway and onto the road, essentially completing a three point turn. The proposal involves excavation, demolishing part of a retaining wall, constructing a new retaining wall or walls, and providing drainage. It does not address the grounding problem at the top of the driveway.
The reviewable decision was an internal review decision made on 14 May 2018 under section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (the Act). It affirmed a decision made on 4 January 2018 to approve a statement of participant supports in Mr Stephenson’s plan pursuant to section 33(2) of the Act. The statement of participant supports did not include funding for the driveway modifications.
The 4 January 2018 decision approved a new plan which will be reviewed on 3 January 2020. Mr Stephenson’s goals in that plan are:
My First Goal is:
During this plan: I would like to maintain and improve my independence at home and in the community.
My Second Goal is:
During this plan: I would like to maintain and improve my health and wellbeing so I can be independent.
My longer term goals and aspirations are:
Goal: I would like to cycle on 2 wheels.
Relates to: Social and community activities
Goal: I would like to build my skills and confidence, so I can return to work.
Relates to: Work
Goal: I would like to participate in activities within the community.
Relates to: Social and community activities
The issues
The Agency argues that driveway modification is not a reasonable and necessary support under subsection 34(1) of the Act because:
(a)It is not a support that will be provided or funded under the NDIS because:
(i)it is not related to his disability,[1] or
(ii)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.[2]
(b)Alternatively, the driveway modifications do not represent value for money in that the cost of the support is not reasonable, relative to both the benefits achieved and the cost of alternative support.[3]
Do the driveway modifications relate to Mr Stephenson’s disability and disability support needs?
[1] Rule 5.1(b) (d) of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Rules).
[2] 5.1(d) of the Rules.
[3] Section 34(1)(c) of the Act.
The argument
The Agency argued:
·The driveway modifications were not required due to Mr Stephenson’s disability but were independent of it.
·They were to resolve a longstanding design deficiency in the driveway which had been constructed about 40 years ago.
·The design of the driveway did not decrease Mr Stephenson’s independence because he has other vehicles available to him which do not ground on the driveway. Therefore, proposed modifications are not necessary for Mr Stephenson’s mobility because he can work around the grounding by using the type of car that does not suffer that problem.
The evidence
The parties accepted the evidence of Mr Wheen, physiotherapist, that Mr Stephenson cannot negotiate the driveway unassisted, on foot or in his wheelchair. The Agency did not press the options where Ms Dinley, the occupational therapist it had engaged, had included a balustrade beside the driveway for Mr Stephenson to use. The Agency also did not press Ms Dinley’s option that Mr Stephenson use a scooter.
Mr Wheen expressed the opinion that the driveway modifications were related to Mr Stephenson’s disability. He described Mr Stephenson’s impairments. They are related to reduced strength in the right hip, knee and ankle causing instability. He has a right ankle prosthesis with no flexibility. He has challenges overall with balance and a high fall risk. He suffers overall endurance fatigue and resulting cognitive fatigue. Concentration is required to manage a challenging situation, such as transferring to and from a vehicle on a slope. He suffers visual disturbance which can make him unsteady and distracted when trying to address it. There is greater safety by allowing him to transfer to and from cars on a level surface rather than a slope, particularly if it were slippery, it was dark, or he was tired.
Ms Dinley reported discussions with Silver Service Taxis, Uber and the New South Wales Ambulance about accessing the property to argue that vehicles can be arranged that can access the property. It appears from her report of those conversations that she only raised with Silver Service and NSW Ambulance the issue of a driveway gradient of ¼, but not the grounding problems. She did not indicate the questions she asked when she spoke to Uber. She only recorded that they have a disability app that can be customised.
In response to that evidence, Mr Stephenson arranged for various taxis and Uber vehicles to try to access the property from 9.10 am to12.20 pm on 31 January 2019. The garage had been emptied, as Ms Dinley had suggested, to allow a car to park in it while Mr Stephenson got into the vehicle on a flat surface. Video evidence of those attempts was shown. The results were:
·All the drivers who tried, reversed down the driveway and drove out forward. None of the vehicles was able to drive into the garage and drive back onto the street with Mr Stephenson and his wheelchair on board, without hitting the driveway.
·Two Silver Service taxis were unable to drive over the top section of the driveway. The driver of a Silver Service, Toyota Camry vehicle, came close to hitting the top of the driveway and refused to proceed. The driver of another Silver Service Toyota Camry hit the underneath of the vehicle and was very annoyed.
·The third Silver Service taxi driver refused to even try because he thought it was impossible to negotiate the transition to the garage without hitting the underside of his vehicle. It was a Silver Service accessible taxi, a Toyota Tarago van.
·Two Uber drivers managed to get down into the garage, but both hit the underside of their vehicles at the top of the driveway. The vehicles were a Honda Jazz and a Honda Odyssey.
·The third Uber driver reversed down the driveway but had to stop because the underneath of his car would have hit the driveway if he had kept driving towards the garage. The vehicle was a Skoda station wagon.
A request was made to Uber Assist but no cars were available. Another request to Uber was initially accepted but then the driver called and requested Mr Stephenson cancel the trip on the app which he did not do. No Uber SUV was requested.
By the end of the evidence, the vehicles of Mr Stephenson’s family members that could access the property included those of his wife, one of his sons, his sister-in-law and brother-in-law, his parents, and his current two carers. Mr Stephenson said that he has to give 24 hours’ notice to carer providers to get a carer.
The Agency tendered a number of print-outs from web-sites. Four were from the Uber web pages which included information about various kinds of vehicles and services available, including luxury SUVs and vehicles accessible for people with a disability, with a capacity to take a wheelchair. The other four print-outs were about vehicles that the evidence showed could access the property, all of which can be described as mid-size SUVs.
There is no flat area for vehicles to park outside the garage. Ms Dinley observed Mr Stephenson to transfer in and out of a vehicle on the sloping driveway using “taught transfer technique”. Whilst she acknowledged that the gradient made the transfer difficult, she did not observe any safety issues, and noted that it was not necessary for another person to remain next to him while transferring. She reported that Mr Stephenson required a second person to fold/store the manual wheelchair and confirmed that would be the case regardless of driveway modifications, unless he drove his own modified vehicle.
Mr Stephenson said that if a vehicle is too high he struggles to get in, and if it is raining, the pebblecrete driveway is slippery. Ms Dinley’s opinion was that Mr Stephenson can safely transfer into and out of vehicles 650 to 700 mm high and that larger SUVs would have to be assessed. She described some devices that might assist him to access higher vehicles.
Mr Stephenson told the first carer he had in January 2017 not to come back after the carer ran into the garage door on the second day, having scraped the bottom of his Toyota Corolla on the driveway and having trouble reversing up the driveway on the first day. The next carer drove well, but his Mazda 3 scraped the driveway and was damaged. His two carers at the time of the hearing had a Jeep Compass and a Subaru Forester which could negotiate the driveway without grounding at the top or bottom. Mr Stephenson was concerned if they left or were sick, he would again be dependent on his wife and family members whose cars can negotiate the driveway.
Consideration
The objects of the Act in section 3 and the general principles set out in section 4 emphasise that the legislative regime is directed to support the independence and social and economic participation of people with disability and provide reasonable and necessary supports that achieve that result.[4] The Rules repeat the substance of those objects and principles.[5]
[4] See ss 3(c), (d), (g) and ss 4 (2), (5), and ss (11)(a), (b) and (c).
[5] See Part 1, Rules 1.2(a) and (c) 1.4(a), (b), (e)(i), (ii) and (iii), 2.3(a) and (b).
Before his stroke, Mr Stephenson could walk up and down the driveway to get into a vehicle which was parked on the road, and leave the house. He could also drive up and down the driveway, and take his bike out and go for a ride. Because of his stroke and consequential hemiplegia, he cannot do those activities. He has lost his mobility and independence. To leave the house for appointments and to go into the community, Mr Stephenson is dependent on carers, as well as family members, to take him in a motor vehicle and pick him up at the bottom of the driveway. His wife works 40 hours. His sister-in-law and brother-in-law work and have children. His older son works casually and is studying. His younger son and daughter go to school. The motor vehicle has to be of a type that can negotiate the driveway without damage. He would like to be able to be picked up by friends or get a taxi or Uber to take him out. He would like to go to the gym, go out to get the bread and milk and go back to scouting. Ultimately, he would like to get his licence back and drive himself.
While it may be possible to get some taxis or Uber vehicles that can negotiate the driveway, the practical test carried out shows that that it is not that easy. No Uber SUV was requested. The web-page print outs from Uber only indicate the type of vehicles that Uber allows. Whether UberBLACK luxury SUVs or Uber SUVs include an appropriate type of vehicle is not apparent. None is the kind of vehicle the evidence shows can access the property. The information does not indicate the availability of any mid-size SUV’s in the area where Mr Stephenson lives.
The proposed driveway modifications are related to Mr Stephenson’s disability. They are designed to provide a flat surface on which he can transfer in and out of a vehicle safely and to overcome the grounding problem at the bottom of the driveway.
Mr Wheen’s evidence about Mr Stephenson’s safety when transferring to and from a vehicle on a sloping driveway was more persuasive than that of Ms Dinley.
The modifications are not related to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to his disability support needs.
That the proposed modification does not overcome the grounding problem at the top of the driveway does not alter those conclusions.
Do the driveway modifications represent value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the costs of alternative support?[6]
[6] Section 34(1)(c).
The support options proposed
Various options for Mr Stephenson’s access to vehicles to and from his home were considered by Ms Christel and Ms Dinley in their written evidence. By the end of the hearing, the options for modifications relating to vehicle access to his home were:
(a)Ms Christel’s proposed driveway modification set out above (Option 1.) Mr Burgess, builder, estimated the cost to be $23,987.50. That was the sum of quotations dated 28 February 2019 and 16 April 2018. Mr Carey, builder/project manager, estimated the cost to be $36,853.23.
(b)Ms Dinley’s “simplest solution” proposed replacing the existing garage door with an automated door and cleaning out the garage so vehicles could access it and Mr Stephenson could enter the vehicle on a level area. A power outlet would be installed for the automated door. Mr Carey’s cost estimate was $6,805. (Option 2.)
(c)Ms Dinley’s “alternative simplest solution” includes (b) and demolition and removal of 27 square metres of existing concrete pavement at the front of the house and the provision of a new 51 square metre concrete area to improve vehicle manoeuvrability to and from the site. Mr Carey estimated the cost to be $19,952. (Option 3.)
Those quotes do not include GST, the cost of a development application, certification, or home warranty insurance cover. When Mr Carey included GST and Home warranty insurance cover, his quotation for Option 1 was $41,418.55.
None of the proposals addressed the grounding problem at the top of the driveway. Ms Christel said that tree roots were lifting up the driveway at that point and it could be fixed. Based on that evidence, Mr Burgess said it could be easily done. Until then he was unaware of the problem. Mr Stephenson’s counsel, Ms Boettcher, said that Mr Stephenson could pay to rectify the problem. Only Ms Christel’s proposal addresses the grounding problem at the bottom of the driveway. All three proposals enable Mr Stephenson to get in and out of a vehicle on level ground.
Other alternatives raised were:
·Mr Stephenson could buy a vehicle to be used by his carers or they could use his wife’s vehicle.
·The current concrete slab and grassed area can be used for manoeuvring.
·He could access the funds approved for Core Supports, which can be used flexibility for both ‘Daily Activities’ and ‘Social Community and Civic Participation’, to pay for carers and vehicles, including taxis and Uber, to transport him.
·He could use an inclinator.
·He could move.

Using an inclinator and moving were not pressed by anyone. Ms Christel had raised the inclinator option at a cost of $80,000.
The argument
Apart from the cost, the Agency’s criticisms of Option 1 were:
·It “probably” will not work because it will not achieve the necessary changes of grade and parking/manoeuvring area within the available area.
·The option had not been assessed by a structural engineer or drafts- person/surveyor.
·It was not known whether development consent would be required or the cost if it were.
·Drainage had not been properly considered.
·The quotations may not reflect the design.
·It does not solve the grounding problem at the top of the driveway.
·It is premature because Mr Stephenson may get his licence back and be able to drive himself as he did before he suffered the stroke.
The evidence
In her report dated 7 February 2019, Ms Christel wrote that she had previously submitted to the Agency a quote for a site survey, which the Agency refused, commenting “we don’t do site surveys”. It appears that the quote was $1,800 for “supply detailed surveyors drawings for Council compliance” provided by Mr Burgess on 16 April 2018. Consequently, the discussion about gradients, heights and distances is based on the two sketch drawings Ms Christel prepared (copies attached as Annexure 1) and measurements carried out “roughly”, to quote Ms Dinley, by herself and Mr Carey, project manager.
Ms Dinley wrote that the opinion that there was “probably” insufficient area to achieve the outcome Ms Christel proposed was “obtained from myself, the Project manager, an architect and engineer”. There was no evidence from the architect or engineer.
Mr Burgess, builder, who had assisted Ms Christel, gave the following evidence:
·Run-off water would have to be redirected to stormwater which was close by. He did not consider that an additional cost would be incurred but he would have to check.
·He discussed with a surveyor and structural engineer what the job involved to help him with the quotations.
·He had called council but had not followed up. He does not know if development consent is required. He did not envisage that the project would need a development application for council approval (DA). He planned the work, such as the height of retaining walls, to avoid that. He had received information the previous day that concreting more than 20 square metres might require a DA.
·While he did not know the council requirement for the grade of a transition, he conceded that it was relevant to his quote, but he was very confident it can be done because he has done a similar job with a lesser gradient in the same council area a few years ago.
·He had no calculations of gradients because there was no survey.
·He would not be making calculations for gradients from the 7 metre mark on the driveway. The turning point from the driveway would be no further than 3.5 to 4 metres from the bottom of the driveway. The gradient depends on where the turning point is which would be confirmed by survey. He had measured the height from the turning point to the level cement area which was around 1 metre but he was not sure where the measurements were. He said it was probably 700 mm.
·He had allowed 6 metres for the hardstand for a vehicle because he had been told Mr Stephenson needed five metres to get out of a car.
Mr Burgess was cross-examined in detail about gradients of ramps and the length of transition to hardstand. The cross-examination was initially based on the assumption that the turning point from the driveway was at the 7 metre mark identified on Ms Christel’s plan of the proposed work. After Mr Burgess said that the turning point for a vehicle was 3.5 to 4 metres from the bottom of the driveway, the cross-examination continued. Mr Burgess maintained his confidence that the proposed project could be done. He said that it is not a complicated job.
After Mr Carey gave evidence, it was apparent that the opinion in Ms Dinley’s report that the proposal was “probably” not going to work was based on the assumption that the turning point from the driveway would be at the 7 metre mark and that Mr Carey had thought the retaining wall would be 1.4 metres high.
Ms Donald, appearing for the Agency, asked Mr Carey questions about ramp and transition lengths based on the vertical height at the turning point of 750 mm. Parts of Australian/New Zealand Standard Parking facilities (AS/NZS 2890.1:2004) were referred to, including Figure 2.10 that included a ramp and a transition either side of it. Mr Carey concluded that a total length of 11 metres was required for the ramp and transition, which could extend to the boundary fence with council approval. Mr Burgess had proposed a set-back of one metre from the boundary.
Consideration
Ms Donald criticised Mr Burgess because, she said, he did not understand the difference between a ramp and a transition. She did not draw Mr Burgess’s attention to AS/NZS 2890.1:2004 or Figure 2.10. By the end of their evidence, and based on the sketch drawing, rough calculations, and some assumptions, the opinion of both Mr Burgess and Mr Carey was that the proposed modification may be carried out, with council approval according to Mr Carey.
The Operational Guideline – Including specific types of supports in plans (the OG) addresses home modifications in Part 5. It emphasises that the Agency is unable to fund home modifications which would be contrary to law. Therefore, the Agency must be satisfied that there are no laws, regulations or other planning restrictions which would prevent the home modifications being undertaken.
All distances, grades, and heights have to be confirmed by survey. Both builders provided quotations on the basis of the sketch and rough calculations. Mr Carey’s was detailed and assumed that the works “would be deemed Complying Development with no prior approval required”. His quotation was based on an incorrect understanding of where the turning point from the driveway will be. Mr Burgess’s assessment of the location was within a range of 500 mm and the consequential height from the proposed flat area ranged from 1 m to a “probable” 700 mm.
If the Agency had funded a survey early in the life of the application for the driveway modification, at a cost of $1,500 to $1,800 according to the quotations, the expense of running contested proceedings on this issue may not have been incurred or may have been much reduced because it would be clear whether the proposal was feasible on the site, inquiries about the need for a DA would have been possible, and a reliable estimate of the cost would have been available. Absent a survey, the expert evidence suggests that the proposed driveway modification may be carried out in compliance with planning laws and regulations, although it is not known whether council approval is required. Further investigation is necessary to ensure that drainage can be directed to stormwater.
Mr Wheen said that Option 1 would help Mr Stephenson “immensely” because there are great risks to his safety because of his impairments, set out above. In his opinion, the modifications would be of long term benefit to him. If Mr Stephenson could access the community, that would improve his physical strength and be beneficial psychologically. Mr Stephenson described his frustration at being at home and not being able to go out when he wanted to.
Carrying out modifications to the driveway according to Option 1 is not premature as the Agency claimed. Mr Stephenson has seen his neurologist who cleared him to drive an adapted car pending an eyesight test. He has had field tests and the optometrist told him that there is no compromise to his eye fields. He will return to the neurologist and then the next stage is a driving test at Mt Wilga. If he passes, Mt Wilga will help him with “the process”. While Mr Stephenson has a goal of regaining his driving licence, that is not imminent. More than two and half years have elapsed since he suffered his stroke. Whether he would be able to drive up and down the driveway as he did before he suffered the stroke if he regained his licence, is unknowable at present. He has said that he would like to be able to drive out forward if does get his licence. Option 1 would allow him to do that, as well as to enter a vehicle and put his wheelchair in a vehicle on a flat area. Both considerations would enhance Mr Stephenson’s safety.
Rule 3.1 sets out matters to consider when deciding the question of whether Option 1 represents value for money.
Rule 2.5 requires a decision-maker to have regard to the objects and principles of the Act, including the need to ensure the financial sustainability of the NDIS and the principles relating to plans.
That Option 1 does not address the grounding at the top of the driveway will be addressed later in this decision.
Are there comparable supports which would achieve the same outcome at a substantially lower cost?[7]
[7] Rule 3.1(a).
Neither Option 2 nor 3 addresses the grounding problem at the bottom of the driveway. They do not achieve the same outcome at Option 1. They are not comparable supports.
The Agency argued that it was reasonable for Mr Stephenson to have a suitable vehicle that could be used by his carers or friends. The option that his wife’s vehicle be left for use by carers was raised when Mr Stephenson still owned a vehicle. He has since sold it for various reasons, including that it was too high and cannot be modified. These options were not addressed in detail. The insurance implications, including comprehensive and workers compensation insurance, were not addressed. These options would not facilitate Mr Stephenson’s transportation into the community by taxi or Uber vehicles. Whether Mr Stephenson’s carers or friends would be prepared to drive a vehicle other than their own was not explored. The evidence was not sufficient to assess this option.
The option that the current concrete slab and grassed area can be used for manoeuvring was raised because there was evidence that Mr Stephenson’s Toyota Prado that has been sold, and another similar but smaller vehicle had been parked there on one occasion. Mr Stephenson said that this area was not used to turn around, that it was boggy, and had a gas main underneath it. He kept people away from it. The evidence does not demonstrate that the existing area can be used by drivers of varying levels of skill in different kinds of vehicles to do a three point turn. It is not a comparable support.
The Agency’s budget portal divided Mr Stephenson’s Core Supports into three categories, Assistance with Daily Activities (Daily Activities), Assistance with Social and Community Participation (Social Community and Civic Participation), and Transport (periodic). The flexible use of Core Supports became an important issue. The hearing resumed for a fourth day to discuss the Agency’s position, advised on 14 March 2019 after three days of hearing, that Mr Stephenson had the flexibility to use Assistance with Daily Activities funding for Assistance with Social and Community Participation. In order to do so, his registered providers can invoice against either of those types of support in the Core Supports budget in the plan. At the time of hearing, he was receiving care from one company and had two carers for six hours a week. He has to use a registered provider.
His approved funds for Assistance with Daily Activities funding and for Assistance with Social and Community Participation were in the order of $230,000. On 11 March 2019 Mr Stephenson’s available funds were approximately $196,000 for Assistance with Daily Activities funding and $24,700 for Assistance with Social and Community Participation. The total funds remaining at that date were approximately $243,826.21. There has to be a service agreement between the provider and the participant and a service booking made for the “specific supports”. Mr Stephenson said that he had to give 24 hours’ notice to book a carer, and has to book a block of two or three hours. Until the Agency stated its position that Mr Stephenson could use Core Supports funding flexibly between categories, he had understood he could only use the funding in the category Assistance with Social and Community Participation for accessing carers.
The Agency put the following arguments. Mr Stephenson can get carers to take him out. He had funding of $208,000 for two years. The costs would be $50 per hour. He could fund 40 hours per week to go out to the gym and to the community. Mr Stephenson has sufficient means to access the community via his wife and other family members who can use the driveway and allow him to transfer into and out of vehicles in the garage. He can use Uber assist or Uber SUV for unscheduled trips. Ms Donald emphasised that Mr Stephenson has funds he can use to build his future capacity which will reduce his requirements in the future, for example, for physiotherapy and exercise physiology at his home. She acknowledged that the driveway modifications were cheaper than the Core Supports funding, but emphasised the long term benefit of the latter if used appropriately.
The discussion about the use of Uber vehicles and taxis suggests that the funding would be met from Mr Stephenson’s Core Support funding which can be used flexibly.
Mr Stephenson’s goals in his plan focus on maintaining and improving his independence. He is trying to resume his pre-stroke life to the extent that is possible. Being dependent on family members is not consistent with those goals. Accessing carers depends on the carer having a vehicle that can negotiate the driveway. He has found two such carers. He has had difficulty finding such carers in the past. The option of using his core support funding as proposed by the Agency does not increase the range of types of vehicle that can transport him, for example vehicles owned by friends or taxis or Uber vehicles. It does not provide a flat area for him to access a vehicle. It does not address the concern raised about access for an ambulance or Mr Stephenson being unable to escape in the case of fire. It is not a comparable support to Option 1 because it is not going to achieve the same outcome or at a substantially lower cost.
Undertaking Option 1 alone is not going to enable Mr Stephenson to be transported in various types of vehicles by friends, Uber vehicles and taxis and, of course, carers. To achieve that objective, the grounding problem at the top of the driveway also needs to be resolved. There has been no investigation of the work that would be necessary to do that. Ms Christel said that the grounding was caused by tree roots and Mr Burgess said that the work was easily done based on Ms Christel’s evidence, but a proper investigation by an appropriately qualified person needs to be done and the cost estimated. Ms Christel is not qualified to comment on the cause of the grounding at that point.
The video evidence of the vehicles grounding there suggested that the cause may be the grade change from the driveway to the footpath rather than tree roots. Work at that point may involve the council. The document Driveway and Vehicle Crossings / Northern Beaches Council, tendered by the Agency states, at page 2 of 6, that:
Only Council approved vehicle crossing contractors may construct vehicle crossings and undertake associated works. No one else is allowed to carry out excavation or any other part of the work.
Ms Boettcher said that Mr Stephenson could fund that work. Without knowing what work needs to be done and the cost, and given the family’s current financial circumstances, greater certainty would be required before a decision could be made which assumed that the work could and would be carried out by Mr Stephenson so that if Option 1 were funded, the driveway would allow the anticipated range of vehicles to transport Mr Stephenson. That conclusion is reinforced by the fact that Mr Stephenson was apparently unable to fund a survey costing between $1,500 to $1,800.
Unless the work at the top of the driveway is done, Option 1 effectively has the same benefit as Options 2 and 3. Mr Stephenson can transfer on a flat surface.
Ms Boettcher’s argument that the grounding problem at the top of the driveway is not related to Mr Stephenson’s disability is not accepted.
Conclusion
The implementation of Option 1 and remedying the grounding problem at the top of the driveway would have significant long term benefits for Mr Stephenson. While Mr Wheen is not a psychologist, his opinion about the positive psychological impact from improved independence is relevant. It accords with Mr Stephenson’s evidence.
Carers have to be booked for a block of two or three hours. If Mr Stephenson could use Uber vehicles and taxis to pick him up and drop him off at the gym or if he wants to walk along a path near the beach, that would probably be at a lower cost than booking a carer for three hour blocks. If friends could transport him, that would be at no cost to the taxpayer. If he could drive himself at some time in the future, the modifications would benefit him as discussed above.
The evidence is not sufficiently precise to allow the Tribunal to be satisfied as to the cost of Option 1 or that it can be carried out in the area available or according to law. The work required and costs involved to remedy the grounding problem at the top of the driveway are not known. However, the evidence leads to the conclusion that if both can be carried out in accordance with the law and at a reasonable cost, they would represent value for money in that the cost of the support is reasonable relative to the benefits achieved and the costs of alternative support. In this case, a cost of $60,000 would be reasonable. It is less than one third of the Core Support funding that was approved and would provide significant long term benefits.
The Tribunal must make the correct or preferable decision. Neaves J in Commonwealth of Australia v Beale (1993) 30 ALD 68 at [70] said the following in relation to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth):
There is, thus, an express power in the tribunal to set aside a decision under review and to remit the matter for reconsideration. However, it may only do so where, in order to give effect to the conclusions to which the tribunal has come, it is appropriate to set aside the decision under review but the tribunal is not in a position to formulate a decision in substitution for the decision set aside. That was not the situation in the present case. The tribunal had reached a firm conclusion that each of the documents which the tribunal had to consider was an exempt document so that the appropriate order for the tribunal to have made was to affirm the decision under review subject, of course to the variation of that decision effected by the decision of the tribunal made on 9 June 1992.
In this case, to give effect the conclusions which the Tribunal has reached, it is appropriate to set aside the decision under review but the Tribunal is not in a position on the evidence, to formulate a decision in substitution. There has been significant expenditure of taxpayer money on this case with no result. It seems that a relatively small additional expenditure may bring about a just result for Mr Stephenson.
Therefore, the decision under review is set aside and the matter is remitted for reconsideration with the recommendations that the Agency:
·fund a survey including the area of proposed Option 1 and the area where the grounding occurs at the top of the driveway, and
·do what is necessary to determine the cost of work required for Option 1 and to remedy the grounding problem at the top of the driveway (the work) and whether the work can be carried out according to law, and, if,
·the cost of the work is determined to be less than $60,000 and the work can be carried out according to law,
·decide to fund the work because it meets all the criteria in section 34 of the Act.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

............................[SGD]............................................
Associate
Dated: 1 October 2019

Date(s) of hearing: 11, 12, 14 and 28 March 2019

Counsel for the Applicant: Ms K Boettcher

Solicitors for the Applicant: Ms L Ash, Legal Aid NSW

Solicitors for the Respondent: Ms M Donald, Sparke Helmore Lawyers
Annexure 1
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[2019] AATA 4059

1 October 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Standing

Statutory Construction

Date(s) of hearing:	11, 12, 14 and 28 March 2019
Counsel for the Applicant:	Ms K Boettcher
Solicitors for the Applicant:	Ms L Ash, Legal Aid NSW
Solicitors for the Respondent:	Ms M Donald, Sparke Helmore Lawyers