Decision and Reasons for Decision
Stewart and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2024] ARTA 76 (24 December 2024)
Division: NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2024/0339
Re: Justyn Stewart
APPLICANT
And Chief Executive Officer, National Disability Insurance Agency
RESPONDENT
DECISION
Tribunal: Senior Member J Collins
Date: 24 December 2024
Place: Brisbane
DECISION
From 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Pursuant to section 105(c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with a direction that:
a) Within 14 days of this decision, Mr Stewart’s statement of participant supports specifies the following supports as reasonable and necessary:
· Supported Independent Living comprised as follows:
o1:1 ratio of support worker assistance for 16 hours per day for 48 weeks;
o1:1 ratio of support worker assistance for 8 hours overnight (inactive) for 48 weeks;
o2:1 ratio of support worker assistance for 8 hours per day to be used flexibly in the home and the community for 52 weeks.
· 28 days of short-term accommodation (STA) comprised as follows:
o 20 days per year of STA weekday rate at a ratio of 1:1, and
o 4 days per year of STA Saturday rate at a ratio of 1:1, and
o 4 days per year of STA Sunday rate at a ratio of 1:1.
· 65 hours of occupational therapy per year;
· 56 hours of speech therapy per year;
· 6-hour assessment by a dietician;
· 6-hour assessment by an exercise physiologist;
· 6-hour assessment for “other therapy’;
· 120 hours per year for specialist behavioural intervention;
· 30 hours per year for training in behaviour management strategies;
· 4-hours cleaning per week;
· 5-hour continence assessment.
b) The date by which the Agency must reassess the Mr Stewart’s plan is to be
12 months after the date on which the supports in (a) above are included in the Mr Stewart’s statement of participant supports;
c) All other supports in Mr Stewart’s existing statement of participant supports are to be replicated pro-rata from the date of this decision until the reassessment date; and
d) Subject to the requirements referred to in paragraph [189] of this decision, the management of funding for reasonable and necessary supports is to remain the same as the management for those supports in the statement of participant supports dated 1 October 2024.
...................................................................
Senior Member J Collins
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – Autism – intellectual impairment - reasonable and necessary supports – consideration of section 34 National Disability Insurance Scheme Act 2013 (Cth)) – SIL - STA – speech therapy, occupational therapy, exercise physiology, personal training – dietician – music therapy – home maintenance – continence assessment – transport – restrictive practices – decision set aside and remitted to the Respondent
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act)
Administrative Appeals Tribunal Act 1975 (Cth) s 2A, s 33, s 42D
Administrative Review Tribunal Act 2024 (Cth) s 105
National Disability Insurance Scheme Act 2013 (Cth) s 24, s 25, s 35, s 48, s 103
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024, s7.
National Disability Insurance Scheme (Supports for Participants) Rules 2013
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024
Cases
G v Minister for Immigration and Border Protection [2018] FCA 1229 McGarrigle v National Disability Insurance Agency [2017] FCA 308 National Disability Insurance Agency v WRMF [2020] FCAFC 79
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
National Disability Insurance Agency v KKTB [2022] FCAFC 181
National Disability Insurance Agency v LWVR [2021] AATA 4822
Secondary Materials
NDIS – Operational Guidelines - Reasonable and necessary supports, as of 6 October 2023
REASONS FOR THE DECISION
1. Mr Justyn Stewart, an 18-year-old male, is a participant of the National Disability Insurance Scheme (‘the scheme’). He seeks an increase in the funding of his supports.
2. The issue before the Tribunal is whether the supports sought by Mr Stewart are ‘reasonable and necessary’ supports pursuant to section 34 of the National Disability Insurance Scheme Act 2013 (‘NDIS Act’) and should therefore be included in his statement of participant supports (‘SOPS’) made pursuant to the scheme.
BACKGROUND
3. Following Mr Stewart becoming a participant in the scheme, the Chief Executive Officer of the National Disability Insurance Agency (the ‘Agency’) approved a participant plan (‘the plan’) for Mr Stewart. The plan included a SOPS for a period from 18 May 2023 to 17 May 2024.1
4. On 11 September 2023 Mr Stewart requested an internal review of his SOPS in order to seek further supports in relation to his impairments.2
5. On 10 January 2024 the Agency affirmed its original decision to refuse funding for these supports (‘the decision under review’). 3
6. Mr Stewart subsequently applied to the Tribunal for a review of the decision under review on 19 January 2024.4
7. On 16 January 2024 the Agency made a decision pursuant to s 48 of the NDIS Act to vary Mr Stewart’s SOPS for the period 20 February 2024 to 20 February 2025. 5
1T16.
2 T10
3 T1A, T2.
4 T1
5 T12
8. The Agency made further subsequent decisions pursuant to s 48 of the NDIS Act on 31 May 2024, 31 July 2024 and 1 October 2024.6 The purpose of these decisions was to replicate the supports funded under the February 2024 plan on a pro rata basis for 6-month periods, so as to ensure that Mr Stewart had continued access to funding while the matter remained in the Tribunal.
9. At the hearing Mr Stewart was not legally represented. His father Mr David Stewart advocated on his behalf. The Agency was represented by Mr Nolan of Counsel, instructed by Mills Oakley Lawyers.
ISSUES
10. For the purpose of this review Mr Stewart seeks the following supports:
i. Supported Independent Living (SIL) comprised of 2:1 support for 16 hours per day and 1:1 inactive support for 8 hours overnight;
ii. Short Term Accommodation (STA) 2:1 support for 42 days per year;
iii. 65 hours of occupational therapy per year;
iv. 52 hours of speech therapy per year;
v. 54 hours of dietitian support per year;
vi. 65 hours of exercise physiology per year;
vii. 52 hours of personal training per year;
viii. Behaviour support, comprising 4 hours per week for 6 months and 2 hours per week for 6 months (156 hours total);
ix. 12 hours per week for cleaning;
x. 45 hours per year of music therapy;
xi. 65 hours per year of hydrotherapy;
xii. Home maintenance including repairs of damage caused by Mr Stewart and also lawn mowing;
xiii. Transport costs, including petrol, oil, taxi expenses, wear and tear on his motor vehicle;
xiv. Meals;
xv. Consumables including:
6 STB14
a. Rubber gloves;
b. Laundry sanitiser;
c.Disinfectant wipes;
d. Disinfectant;
e. Eucalyptus spray;
f.QV body wash;
g. Kylie pads for home and car;
h. Fitted mattress protectors; and
i.Hand sanitiser.
11. The Agency contends that these supports are not ‘reasonable and necessary’ supports for the purposes of s 34(1) of the NDIS Act.
THE LEGAL FRAMEWORK
National Disability Insurance Scheme Act 2013 (Cth)
12. Section 34 of the NDIS Act identifies what constitutes a ‘reasonable and necessary’ support under the scheme.
13. At the time of the commencement of the hearing section 34 of the NDIS Act provided as follows:
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.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
14. On 3 October 2024 and prior to the completion of this review the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (the ‘Amending Act’) commenced. The Amending Act made a range of amendments to the NDIS Act.
15. The amendments in respect of the requirements pursuant to section 34 of the NDIS Act will apply to this review.7
16. Section 34 of the NDIS Act, as amended, provides as follows:
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:
(aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability
requirements 24) or the early intervention requirements (see section 25);
(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;
7 Section 129, National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No 1) Act 2024.
(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 an NDIS support participant.
Note: For the purposes of (aa):
(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve and
(b) a participant's disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f). (Tribunal emphasis)
17. Section 34(1) is cumulative and therefore all the criteria must be met.
18. Section 34(1) (aa) of the NDIS Act as an amendment, imposes an additional requirement of the criteria. This additional requirement is the consideration of whether the support is necessary to address the needs of Mr Stewart which arise from the impairment/s for which he met the disability requirements and/or the early intervention requirements.
19. Section 34(1)(f) of the NDIS Act is a replacement of an ‘old provision’ with a ‘new provision’.
20. This new provision of section 34(1)(f) of the NDIS Act requires that the support be a ‘NDIS support’.
21. Section 10 of the NDIS Act provides a definition of what constitutes a ‘NDIS Support’ for the purposes of section 34(1)(f) of the NDIS Act (as amended). Section 10 of the NDIS Act provides as follows:
Supports that are NDIS supports
(1) Subject to subsections (4) and (9), a support is an NDIS support for a person who is a participant or prospective participant if the support is declared by National Disability
Insurance Scheme rules made for the purposes of this subsection to be an NDIS support for :
(a)participants or prospective participants generally; or
(b) a class of participants or prospective participants that includes the person. Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003 ).
(2) Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (1), the Minister must be satisfied:
(a) for rules to which paragraph (1)(a) applies--that the support is appropriately funded or provided through the National Disability Insurance
Scheme for participants or prospective participants generally; or
(b) for rules to which paragraph (1)(b) applies--that the support is appropriately funded or provided through the National Disability Insurance
Scheme for participants, or prospective participants, in the relevant class.
(3) National Disability Insurance Scheme rules may declare a support for the purposes of subsection (1) only if at least one of the following applies:
(a)the declaration of the support implements Australia's obligations under:
(i) the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006; or
(ii) any other agreement with one or more other countries;
(b) the declaration of the support enables the provision of sickness benefits. Note: For subparagraph (a)(i), the Convention on the Rights of Persons with Disabilities is in Australian Treaty Series 2008 No.12 ([2008] ATS 12) and could in 2024 be viewed in the Australian Treaties Library on the website ( that are not NDIS supports
(4) The National Disability Insurance Scheme rules may declare that a support is not an NDIS support for:
(a)participants or prospective participants generally; or
(b)a class of participants or prospective participants.
Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003 ).
(5) Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (4), the Minister must be satisfied:
(a) for rules to which paragraph (4)(a) applies--that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or
(b) for rules to which paragraph (4)(b) applies--that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.
(6) The CEO may determine, in writing, that a support is taken to not be declared under subsection (4) in relation to a participant if:
(a) the support is prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and
(b) the support would, apart from subsection (4), be an NDIS support for the participant; and
(c) the participant applies to the CEO in accordance with subsection (7) for the determination; and
(d)the CEO is satisfied that:
(i) the support would replace one or more other supports that are NDIS supports for the participant; and
(ii) the cost of the support is the same or lower than the total of the costs of the supports it would replace; and
(iii) the support would provide the same or a better outcome for the participant than the supports it would replace; and
(iv) any other conditions specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph are met in relation to the support, the participant, or both.
Note 1: A determination may be revoked under subsection 33(3) of the Acts InterpretationAct 1901 .
Note 2: The National Disability Insurance Scheme rules may prescribe a support for the purposes of paragraph (a) by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003 ).
(7) An application under paragraph (6)(c) must:
(a)be in the form (if any) approved by the CEO; and
(b) include any information, and be accompanied by any documents, required by the CEO; and
(c) be made in accordance with any other requirements specified in the National Disability Insurance Scheme rules for the purposes of this paragraph, which may include requirements as to the circumstances in which an application may, or may not, be made.
(8) The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of subsection (6), including by prescribing requirements with which the CEO must comply, methods or criteria that the CEO is to apply, or matters that
the CEO may, must or must not take into account, in deciding whether to make a determination under that subsection.
(9) A support is not an NDIS support for a participant or prospective participant if the support consists of the provision of:
(a)sexual services; or
(b)alcohol; or
(c) drugs, the possession of which is a contravention of a law of the Commonwealth, a State or a Territory.
22. Section 35 of the Act also provides for the making of rules in relation to prescribing reasonable and necessary supports or general supports that will not be funded or provided under the NDIS. The relevant rules in respect of this review are the:
· National Disability Insurance Scheme (Supports for Participants) Rules 2013
(‘the Supports Rules’);
· National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (‘NDIS Supports Transitional Rules’); and
· National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (‘NDIS Miscellaneous Transitional Rules’).
23. Rules 3 and 5 of the Supports Rules relate specifically to subsections 34(1)(c ) - (e) of the NDIS Act and provide as follows:
Value for money
3.1 In deciding whether 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, the CEO is to consider the following matters:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early
intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d)for supports that involve the provision of equipment or modifications:
(i) the comparative cost of purchasing or leasing the equipment or modifications; and
(ii) whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
Effective and beneficial and current good practice
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a)published and refereed literature and any consensus of expert opinion;
(b)the lived experience of the participant or their carers; or
(c)anything the Agency has learnt through delivery of the NDIS.
3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary, seek, expert opinion.
Reasonable family, carer and other support
3.4 In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:
(a)for a participant who is a child:
(i) that it is normal for parents to provide substantial care and support for children; and
(ii) whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age; and
(iii) the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and
(iv) whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing;
(b)for other participants:
(i) the extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community; and
(ii) the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:
(A) the age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and
(B) the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and
(C) the extent of any risks to the long-term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and
(iii) the extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes;
(c) for all participants—the desirability of supporting and developing the potential contributions of in formal supports and networks within their communities.
General criteria for supports
5.1A support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
(b)it is not related to the participant’s disability; or
(c)it duplicates other supports delivered under alternative funding through the NDIS; or
(d)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.
5.2The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a)additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b)costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
24. Schedule 1 of the NDIS Supports Transitional Rules identifies supports which are declared ‘NDIS Supports’ for the purposes of s 10(1) of the NDIS Act. Likewise, Schedule 2 of the NDIS Supports Transitional Rules identifies supports which are declared as not ‘NDIS Supports’ for the purposes of s 10(1) of the NDIS Act.
25. In McGarrigle v National Disability Insurance Agency,8 at [43], Mortimer J (as her Honour then was) made the following observations in respect of these rules:
‘The [Supports Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement…some policy decision-making about the nature and extent of supports to be provided or funded.
26. The phrase ‘reasonable and necessary’ is not defined in the Act. It is a composite phrase and should be considered as such. In McGarrigle Mortimer J stated as follows:9
‘Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is
8 McGarrigle v National Disability Insurance Agency [2017] FCA 308 (‘McGarrigle’).
9 [2017] FCA 308 at [91].
to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.
27. The Full Court in National Disability Insurance Agency v WRMF10 also considered the meaning of ‘reasonable and necessary’ supports, and stated as follows:
‘The phrase is a composite phrase. We accept the Agency's submissions that each limb of the phrase should be given work to do. That task is not difficult, or complicated with these two particular words, which are readily understood as conveying different meanings. However, the Parliament has chosen to use a composite phrase rather than to stipulate two distinct requirements, and therefore, as Gleeson CJ cautioned in XYZ v Commonwealth [2006] HCA25; (2006) 227 CLR532 at [19], '[t]here are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts'.
…Both adjectives qualify the noun “support”, but they do so as a composite phrase. It is not fruitful to split them off and consider them separately, just as it is neither fruitful nor appropriate to attempt any exhaustive or authoritative judicial definition of them.
Nevertheless, there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.’
28. In WRMF11 the Full Court of the Federal Court also stated that:
‘the supports to be provided to a person who qualifies as a participant are intended to accommodate an individual’s particular impairments and to assist that particular individual to be a participating member of the Australian community, and to do so on the basis of the values set out in the objects and guiding principle clauses of the Act, as well as the values set out in section 17A of the Act.
29. Further, that the statutory task of determining the contents of a participant's plan, and what are the reasonable and necessary supports, is a fact-intensive exercise.
10 National Disability Insurance Agency v WRMF [2020] FCAFC 79 (‘WRMF’) at [149]-[151]
11 [2020] FCAFC 79 at [141].
The exercise is highly individualized, having regard to the circumstances of each particular participant.12
30. In National Disability Insurance Agency v KKTB,13 the Full Court stated that:
Each decision ... to approve a statement of participant supports is a decision about an individual, and their needs ...the legislative scheme demands a focus that is very much on the support needs of the individual participant.
OPERATIONAL GUIDELINES
31. The Agency also issues Operational Guidelines in relation to what are considered ‘reasonable and necessary supports’ in a participant’s plan. There is no power conferred by the Act to make these Operational Guidelines, and they are issued in an exercise of executive power.14 The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines. However, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)15 the Federal Court held that a Tribunal should take into account relevant government policy that is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection16 where Mortimer J held:17
‘Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it’.
32. Accordingly, unless the Operational Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in a determination of what is a reasonable and necessary support for Mr Stewart. The Guidelines relevant to this review are the NDIS – Operational Guidelines - Reasonable and necessary supports.18
12 Ibid at [152].
13 [2022] FCAFC 181 at [26].
14 G v Minister for Home Affairs [2019] FCAFC 79 at [18].
15 [1979] AATA 179 (1979); 2 ALD 634.
16 [2018] FCA 1229.
17 Ibid at [171].
18 Webpage: ourguidelines.ndis.gov.au
EVIDENCE
33. I have considered all the written evidence filed with the Tribunal provided in the joint bundle, supplementary bundle, the oral evidence provided at the hearing on 13, 14, 15 and 22 November 2024, and the parties’ closing submissions. I will refer in my decision to evidence that in my view is directly relevant to the determination of this matter.
34. In making my decision, and pursuant to section 33(5)(a) of the NDIS Act, I have also taken into account Mr Stewart’s statement of goals and aspirations as set out in his statement of participant supports.
Evidence about Mr Stewart
35. The evidence indicates that Mr Stewart has the following diagnoses:
·Severe Autism (Level 3);
·Attention Deficit Hyperactivity Disorder (ADHD);
·Severe speech and language delay;
·Visual impairment (requiring glasses);19 and
·Moderate to severe intellectual disability.20
36. As a consequence of Mr Stewart’s conditions, he experiences the following symptoms and difficulties:
·Reduced emotional regulation;
·Reduced executive functioning;
·Sensory sensitivities;
·Non-verbal communication;
·Deficits in his executive function, memory, planning, processing speed, and attention; and
·Severe disruptive and self-injurious behaviours.21
19T3, T5
20 T 6 p 109, T14, TB15
21 Reports of Professor Buckmaster dated 3 July 2018 and 12 November 2018, TB 15.
37. The goals included in Mr Stewart’s plan22 are that he would like to:
· Feel safe and supported in his home;
· Increase his expressive and receptive communication skills;
·Connect and maintain cultural connections and learnings and share his cultural experience with others;
· Engage with First Nations service to explore cultural activities;
· Participate in all aspects of school life; and
· Learn how to regulate his emotions.
38. In November 2022 Mr Stewart commenced a transition of returning to live with his father. Prior to this time Mr Stewart had been under the care of the Department of Communities and Justice NSW for a number of years, living in disability supported accommodation in a 24/7 model of care provided through various providers.23
39. Since April 202324 Mr Stewart has been residing with his father Mr David Stewart.
40. At the time of the hearing Mr Stewart was prescribed the following medications:
·Clonidine for anxiety;
·Aripiprazole as a mood stabiliser; and
·Osnlax to assist with bowel movements.25
41. Mr Stewart did not provide any evidence to the Tribunal. In the context of his impairments this is entirely understandable.
Evidence of Mr David Stewart
42. Mr David Stewart is Mr Stewart’s father. His oral evidence was honest, truthful and without exaggeration.
43. His oral evidence in respect of himself can be summarised as follows:
22 ST14
23 T7, T9, TB6 p 321.
24 T9 p 124.
25 TB 22 p 429.
·He is 52 years of age;
·His care and support of his son has rendered him completely and utterly exhausted;
·He has had four hernia repairs, a hip replacement and carpal tunnel surgery;
·He requires two more hernia repair operations, a knee replacement and further carpal tunnel surgery;
·He is on a disability pension as a result of injuries sustained in a motor vehicle accident; and
·He has very little ‘down time’ and he is ‘on call’ twenty-four hours each day, seven day a week.
44. His oral evidence in respect of Mr Stewart can be summarised as follows:
·He has complex needs;
·He suffers from separation anxiety from his father. He constantly hugs his father, which includes grabbing him around his neck and smelling his hair;
·He wakes each morning generally between 3.00am and 5.00am;
·His behaviours throughout the day are unpredictable;
·He has a very limited attention span;
·It requires two people to shower him, this includes for the removal of his clothes, running the water, using soap on his body, drying off and re-dressing;
·He has no intellectual understanding of his hygiene or self-care requirements;
·He has no interest in washing his body with soap. Others must soap and clean his body when he is soiled from his incontinence. His father brushes his teeth and cuts his finger and toenails. Generally only one nail per day is all that he can tolerate;
·He is unable to use the toilet, unaided and without supervision. When using his bowels he requires two people to toilet him;
·He has regular bladder and bowel incontinence; this includes at night when sleeping;
·Mr Stewart’s incontinence is managed by briefs and continence pads;
·Toileting Mr Stewart after he has soiled himself is particularly a ‘two-person’ task. This is because of his size as an adult male, weighing approximately 70 kilograms, and his autistic traits. He will often be ‘kicking’ and taking off his soiled clothes as he makes his way to the toilet. Management of his incontinence
requires and includes removing and retrieving soiled clothes, disposing of soiled pads, rinsing soiled clothes, getting clean clothes, wiping and cleaning Mr Stewart and ensuring his hygiene, re-dressing and opening windows for ventilation of odours. On many occasions furniture, carpet, floors and other surfaces become soiled and also require cleaning;
·Because of bowel issues Mr Stewart will sometimes have 4 or 5 bowel motions each day. He may also not have a bowel motion on some days. The use of his bowels is unpredictable;
·Often, Mr Stewart can wake-up in the middle of the night and remain awake for two hours. When awake throughout the night he requires constant supervision;
·At times when he has soiled himself, he will choose to have a bath in a soiled state. This is on the basis that he cannot be encouraged to have a shower. He will then require a ‘second bath’ immediately thereafter to ensure his hygiene;
·He is unable to dry himself off with a towel after bathing;
·Drying off and dressing is also often a two person-task, particularly if Mr Stewart is elevated. Often, he will be dried off by being physically laid on two towels on a bed;
·When Mr Stewart is having a ‘good day’ he can dress himself with supervision. When he is having a ‘bad day’ he will be dressed whilst lying on a bed as this is easier to manage him and it also reduces the risk of Mr Stewart ‘lashing out’;
·He requires supervision when eating and will often use his hands instead of cutlery;
·He finds is difficult to remain in one location to eat and will move around the house to eat, spilling drinks and food;
·His propensity to ‘lash out’ at others is regular and unpredictable;
·Mr Stewart must wear a harness for restraint when travelling in a car to ensure his safety and the safety of others. The harness ensures that Mr Stewart has no ability to hit or headbutt other persons in the vehicle, including the driver. He must sit in the back of the car. On occasions he kicks the seat in front of him. He must therefore sit on the passenger side of the vehicle to avoid a safety risk to the driver. The use of the harness is a restrictive practice included as part of Mr Stewart’s behavioural support plan;
·Preparing to leave the house and getting into a motor vehicle is also a two- person task. One person is tasked with ensuring Mr Stewart is dressed appropriately and with a hat, also packing a bag for him with a drink, snacks and
continence pads. The other person is responsible for directing Mr Stewart to the motor vehicle, opening the vehicle door and placing a continence sheet on the seat of the car;
·The fitting of the harness must be undertaken by two-people in accordance with the procedure developed as part of Mr Stewart’s behavioural support plan. This is in order to avoid Mr Stewart hitting, kicking or head butting whilst the harness is being fitted;
·Mr Stewart is estimated to headbutt others approximately 100 times each year;
·Mr Stewart finds that travelling in a car helps to regulate him. Often his father will drive him in the car for lengthy periods of time. He is also driven in a car, for a period of time each night after dinner;
·Mr Stewart leaves the house several times each day. This also assists with his dysregulation. Aside from medical appointments he enjoys a variety of activities including visiting parks, playing golf and swimming pools;
·Mr Stewart enjoys listening to music;
·Mr Stewart has many ‘triggers’ which cause him to become heightened and dysregulate. Some of these triggers include time delays, the use of the word ‘no’, noises, dogs, children, changes to the weather, signs, crowds and people in uniforms such as the police;
·When he dysregulates, he engages in dangerous behaviours. These behaviours include head banging and throwing objects. In the past he has punched walls and broken bathroom tiles. He will also ‘take off’ and abscond. He can run significant distances. His father describes his escalations as going from zero to 100 very quickly;
·It takes two people to manage his dysregulation. This is for a number of reasons:
oFirstly Mr Stewart is better able to ‘cooperate’ when two people are negotiating and navigating his de-escalation; and
oWhen dysregulated one person will physically ‘approach’ Mr Stewart while the second person ‘stands back’ providing verbal assistance and positioned to provide further help.
·Mr Stewart manages his dysregulation by:
oHaving multiple baths each day, generally three to five. Sometimes he will stay in the bath for 10 minutes, other times he will stay in the bath for 1 hour;
oDriving in a car;
oTransitioning from one activity to another; and
oSwimming.
·When Mr Stewart escalates in the community, his father will often be ‘called’ to assist with his de-escalation despite the efforts of his two support workers. His father describes himself as effectively being ‘on-call’ at all times;
·Other triggers for Mr Stewart also include the sound of a vacuum cleaner, lawn mower and washing machine;
·Historically when Mr Stewart has absconded, he has entered houses and caused damage. He has also broken shop windows. He is able to run considerable distances when absconding;
·The cupboards in the kitchen of the family home are fitted with straps and ratchets which prevent Mr Stewart from accessing objects such as glasses that he can throw;
·When Mr Stewart returns from an activity in the community in an elevated state, it requires two people to manage his behaviours and get him out of the vehicle, remove his harness and direct him inside his home;
·He requires prompting and supervision to eat. Often Mr Stewart will ‘throw’ two or three meals before eventually agreeing to eat a further prepared meal; and
·When using the toilet he will often take off ‘all’ of his clothes. This is a significant issue when in the community.
Evidence of Chrysalis Therapeutic Support Services.
45. Ms Tanya Denny, social worker and Liz Swadling, Behaviour Support Clinician co- authored a Positive Behaviour Support Plan for Mr Stewart following an assessment in January 2022.26
46. At that time Mr Stewart 16 years of age, residing in disability accommodation and attending school 5 days a week.
47. Mr Stewarts behaviours of concerns were noted to include aggression, head butting, head banging on glass, throwing objects and rocking. 27 Reference was made to the use of a harness in a car in the context of grabbing and assaulting drivers.
26 T3
27 T3
Evidence of Ms Katrina Sweeney
48. Ms Sweeney is an Occupational Therapist. She undertook a functional assessment of Mr Stewart in July 2021 and provided a report dated 16 August 2021.28 At that time Mr Stewart was 15 years of age and residing in an ‘out of home’ care serviced house managed by Life Without Barriers. Mr Stewart was also attending school five days per week within a specialised disability program. When not at school, Mr Stewart received assistance from 2 support workers during the day and one support worker overnight. Ms Sweeney’s recommendation was to continue with this level of support.
49. Ms Sweeney assessed Mr Stewart again in June 2022 and provided a further report.29 Her report detailed the therapy supports that had been delivered during the NDIS Plan in place at that time and the outcomes that had been achieved. At that time Mr Stewart was still attending school 5 days per week and receiving assistance from 2 support workers during the day when he was not at school and one support worker during the overnight period.30
50. In her June 2022 report Ms Sweeney recommended 2:1 support during active hours and 1:1 in the non-active hours when Mr Stewart slept. She also recommended 30 hours of occupational therapy for the following one-year period.
51. In June 2023 Ms Sweeney assessed Mr Stewart again. By that time Mr Stewart had been residing with his father since April 2023. Ms Sweeney conducted a Care and Needs Scale assessment (CANS) to ascertain Mr Stewart’s supports needs at that time. The CANS assessment concluded that Mr Stewart required a ‘level 7’ of support due to safety concerns and the requirement for a high level of care. Ms Sweeney stated, ‘This level indicates Mr Stewart cannot be left alone, requiring assistance and surveillance 24 hours per day’.31
52. A WHODAS 2.0 assessment by Ms Sweeney at that time also identified Mr Stewart as performing at a 78.85% level of disability. Ms Sweeney explained that this result
28 TB8
29 T5
30 T5
31 T9
indicated the severity of Mr Stewart’s disability and the high level of support that he required.32
53.Ms Sweeney’s recommendation at that time, included the following:
·24-hour supports with line-of-sight supervision comprised as follows;
oa 2:1 ratio ‘during the day’ to ensure his safety and engagement in social activities as well as activities of daily living, such as grooming self-care, toileting, dressing and meal preparation,
o a 1:1 ratio during inactive hours when Mr Stewart is asleep.
Funding to attend a day program 5 days per week with 2:1 support;
·48 hours of respite per fortnight used flexibly; and
·20 hours of occupational therapy to support Mr Stewart and his care team within the home environment and the community. This included the provision of equipment, modifications, education and other supports as necessary.33
54. Ms Sweeney further stated in her report ‘In the future, Mr Stewart should be re- assessed to determine if these support needs can be lessened to 1:1 support.’34
Evidence of Josie McCausland
55. Ms McCausland is a dietician. She reviewed Mr Stewart in June 2022 in the context of a referral which stated ‘limited diet variety’35 At that time Mr Stewart was described as having the following limitations:
·fussy eating related to sensory/ behavioural elements;
·limited diet variety impacting on his participation in all settings on a daily basis; and
·restrictions including certain colours, textures and food types.
56. Ms McCausland recommended 22 hours of dietician support for the following 12- month period comprised of the following:
·Monthly face to face sessions of 60 minutes for monitoring oral intake, bowel management and diet variety (12 hours);
32 T 9
33 T 9 p 151
34 T 9 p 147
35 T6
·4 hours of clinician travel so that 4 of the monthly face to face sessions could be completed ‘in person’ at Mr Stewart’s home;
·3 hours for report writing and documentation; and
·3 hours to liaise with informal supports, dietary analysis and menu planning.
Evidence of Ms Liz Swadling
57. Ms Swadling is a behaviour support practitioner. Her undated report was provided to the Tribunal and prepared at a time when Mr Stewart was 16 years of age. On that basis, it is reasonable to conclude that Ms Swadling’s recommendation was based on Mr Stewart’s presentation 2 years ago. Ms Swadling’s recommendation was for a ‘2:1 staffing ratio for a minimum of a 3-month period with a fade out plan’.36
Mr Stewart’s Care Plan
58. The Tribunal was provided with a copy of Mr Stewart’s care plan dated 27 March 202437 This plan was prepared as an instructive document for support workers engaged to support Mr Stewart.
59. Of relevance the following content is noted within the care plan:
·References to the care of Mr Stewart by 2 support workers in the context of community access. These includes references to occasions in the community when one support worker needs to go to the toilet, or in the event of a negative behavioural episode. The following instructions are provided;
‘Never leave your co-support worker alone. If you need to go to the toilet, then Justyn and the other support worker need to go with you and wait outside the door. If Justyn is eating at the food court and is happy and the toilet is very close, then that is the only time you can leave him with your co-support worker and very quickly go to the toilet.’
‘If Justyn has a negative behavioural episode while you are out, call David and return Justyn home for some time out or refer to Justyn’s behaviour notes or refer to your co-support worker if you are new. Consistency is key here to managing Justyn’s emotions and behaviours.’
36 T14
37 TB21
·In his home environment Mr Stewart is stated to be able to independently eat breakfast, dress himself, put on his shoes glasses and hat, bathe himself and assist with the preparation of dinner;
·Mr Stewart requires assistance with brushing his teeth, which is provided by his father; and
·Mr Stewart’s support workers are required to perform the following tasks:
oMake his bed;
oPick items up from the bedroom floor;
oPack his activity bag and snacks when leaving the home;
oUnpack his bag and wash bottles and containers;
oHang up the bathmat and towel after Mr Stewart’s shower and ensure clothes are in the laundry basket; and
oWash the dinner dishes, put the dishes away and wipe down the kitchen benches.
60. The plan also states that each support worker must have a break every 4 hours, that these breaks must be organised by the co-support workers themselves. Also, that co-support workers must not have their breaks at the same time.
Evidence of Andrew Sletcher
61. Mr Sletcher is an occupational therapist. Mr Sletcher undertook a psychosocial functional assessment of Mr Stewart in July 2024 and provided a report dated 12 August 2024. 38 This report was subsequently amended and updated on 23 October 2024.39
62. Mr Sletcher reported significant caregiver burnout of Mr David Stewart stating that
‘family supports have been exhausted and now cannot be used long term’.40
63. Mr Sletcher assessed Mr Stewart’s ability to independently perform activities of daily living using the ‘KATZ ADL’ index. A score of 2/6 was concluded which indicated that Mr Stewart was ‘able to complete transfer tasks and feed himself independently (needs constant assistance with meal prep), however he requires high supports when completing bathing, dressing, toileting, and continence.’
38 TB22
39 Exhibit4
40 TB22
64. Mr Sletcher also assessed Mr Stewart’s independent living skills using the Lawnton Body Instrumental Activities of Daily Living Scale (ADL). A score or 0/8 was achieved which indicated Mr Stewart was highly dependent on supports for all of his independent activities of daily living.
65. An assessment of Mr Stewart’s adaptive behaviours in various settings was also completed using the Adaptive Behaviour Assessment System (ABAS-3). Mr Stewart’s overall score indicated that his ability to function within his environment was impaired in all areas.
66. Mr Sletcher also assessed Mr David Stewart using the Modified Caregiver Strain Index (MCSI). The MCSI indicated a score of 26/26 for Mr David Stewart. Mr Sletcher stated,
‘David obtained a total score of 26/26. This indicates that he is highly at risk of carers burnout and requires immediate support and intervention. Due to David managing Justyn for so long without consistent appropriate supports, he’s had to place his life and health on hold to appropriately support Justyn, therefore it’s recommended 2:1 supports are ongoing to allow David to recover from the burnout he’s experienced’41
67. Mr Sletcher considered a need for a 2:1 ratio of assistance for a number of tasks which included showering, toileting, grooming and dressing.
68. Summarised, Mr Sletcher’s recommendations are as follows:
·65 hours of occupational therapy;
·70 hours of speech pathology;
·65 hours of exercise physiology;
·45 hours of music therapy;
·65 hours of hydrotherapy;
·150 hours of behaviour therapy;
·54 hours of dietician services;
·2:1 ratio of support worker assistance for 14 hours per day;
·1:1 ratio support worker assistance for 10 hours per evening between 8pm and 6 am; and
·Weekly cleaning of 8 hours per week.42
41 TB 22
42 Exhibit 4
69. Mr Sletcher also gave oral evidence at the hearing which can be summarised as follows:
·Mr Stewart’s behaviours are impulsive and erratic, this includes jumping up and down as a reaction to noises;
·He has observed Mr Stewart’s behaviours in the community on several occasions;
·Mr Stewart has no spatial awareness and will regularly bump into others;
·He has no safety awareness. When crossing the roads his hands must be held at all times;
·When in the community, he requires assistance from two people. His hands must be held on either side;
·When he becomes heightened in the community his behaviours can change in a few seconds. He has the physical capacity to abscond quickly. It is not safe for Mr Stewart to access the community with only one person;
·When accessing the community, one support worker is responsible for managing Mr Stewart’s behaviours when he becomes heightened. The other support worker is responsible for identifying and avoiding triggers within the community. Some of these triggers include babies, school children and certain noises;
·The roles of each support worker, when accessing the community are separate and ‘very different’;
·Mr Stewart requires a 2:1 ratio of support when he is awake, either at home or when accessing the community;
·Mr Stewart requires a 1:1 ratio inactive support worker assistance for 10 hours during the evening, with his father being available to assist throughout the night should it be required;
·Mr David Stewart is able to provide assistance, subject to carer burnout; and
·Mr Sletcher has no qualifications in relation to speech therapy, exercise physiology, music therapy or hydrotherapy.
Evidence of Jessica Cluney
70. Ms Cluney is Behaviour Support Practitioner. She is also a Registered Nurse with a post graduate degree in intellectual development. She conducted a functional behaviour assessment of Mr Stewart and provided a report dated 4 October
2024.43 Her report was subsequently amended and updated and provided to the Tribunal.44
71. Ms Cluney states that Mr Stewart requires a 2:1 support ratio in the community and at home during his ‘awake’ hours. She states Mr Stewart’s ‘In-home support, provided by "buddies," (support workers) spans two shifts, covering most of the day.’45.
72. Ms Cluney also states ‘Without a 2:1 support ratio, Justyn’s ability to safely access the community and maintain significant relationships is compromised.46
73. The following relevant references are also included in her report:
· ‘Justyn experiences significant challenges in completing Activities of Daily Living (ADLs), which are closely tied to his autism spectrum disorder (ASD) diagnosis. Autism is often associated with motor coordination difficulties, sensory sensitivities, and executive functioning challenges. These factors affect his ability to perform tasks like dressing, bathing, and meal preparation. Justyn requires verbal prompts and structured support, and the level of assistance fluctuates depending on his regulation. A 2:1 staff-to-individual ratio is maintained in the home to manage behaviours of concern that may arise during ADLs, transitions, or other routines.’
· Shaving and grooming requires 1: 1 assistance, tasks such as cutting nails or hair requires 2:1 assistance within the home and contributes to behaviours of concern in the home;
· The 2:1 support ‘remains crucial’ when accessing the community in order to manage his behaviours, which include dysregulation and anxiety. Also to ensure the safety of the community; and
· ‘The 2:1 ratio allows staff to safely implement redirection, de-escalation, and protective interventions, particularly when Justyn becomes triggered and exhibits aggressive behaviours. Without this level of support, the intensity, duration, and frequency of behaviours could increase, posing greater risks to all involved. This
43 TB23
44 Exhibit 3
45 TB23
46 TB 23
structured 2:1 approach is also applied in response to triggers in the community (e.g., dogs, children, professionals), during driving, activities of daily living (ADLs), and transitions at home’.
74. Ms Cluney also gave oral evidence at the hearing which can be summarised as follows:
·Only registered persons can engage in restrictive practices which include the use of a harness on Mr Stewart in a motor vehicle. Support workers assisting Mr Stewart in this regard must be registered providers with training in behaviour support practices;
·She described Mr Stewart’s needs as ‘extremely complex’ in the context of a high level of ‘behaviours’ that occur at a ‘moderate to major level’;
·She explained that it was necessary to have both ‘preventative strategies’ and ‘reactive strategies’ for Mr Stewart when he was accessing the community in order to manage his dysregulation. She described one support worker as being responsible for interacting with Mr Stewart, while the other support worker as being responsible for continually ‘scanning the environment’ to ensuring a safe environment without any ‘triggers’;
·The triggers for Mr Stewart include children or dogs that come too close to him;
·Mr Stewart can, on occasions, direct his behaviours of concern towards one of his support workers. In these circumstances, it is necessary for his second support worker to ‘redirect’ Mr Stewart, so as to ensure the safety of the targeted support worker;
·In the absence of a second support worker when accessing community Mr Stewart represented a substantial ‘risk’ to the community;
·Mr Stewart has a lot of ‘behaviours of concern’ around ‘transitions’ and ‘time delays’;
·Ms Cluney explained ‘time delays’ as a major trigger for Mr Stewart, stating that Mr Stewart has an inability to ‘transition’ around time delays. She explained a ‘transition’ as being a change from one activity to another. The effect of these difficulties is that if Mr Stewart is changing activities he must do so ‘immediately’. If a transition does not occur immediately, he will dysregulate and engage in behaviours of concern;
·Mr Cluney stated ‘we don’t currently have where Justyn’s able to stay at home 8 hours in a day’ ;
·Mr Stewart requires a higher tier of specialist behaviour intervention and she recommended an allowance of 120 hours per year.
Evidence of Orla Fox
75. Ms Fox is an occupational therapist. She conducted an ‘on the papers’ review of Mr Stewart. This was on the basis that Mr Stewart did not consent to an ‘in person’ assessment.
76. Ms Fox provided three reports to the Tribunal. In her final report dated 4 November 202447 she stated, ‘There can be no doubt that Mr Stewart needs person-to-person support at all times.’
77. Ms Fox recommended a ratio of 1:1 support worker assistance, 24 hours per day. She also recommended ‘approximately’ 8 hours per day of 2:1 care for mealtimes, shower times and community-based activities and appointments.
78. Ms Fox considered that the regular use of STA would be disruptive for Mr Stewart. Her opinion was that the purpose of STA would be for Mr David Stewart’s respite. Also that 52 days of STA for Mr Stewart would not contribute to Mr Stewart’s improved functional capacity or improved ability to manage daily living skills more independently. If anything, Ms Fox considered an allowance of 52 days STA ‘may set him back.
79. Ms Fox also gave oral evidence at the hearing which can be summarised as follows:
·She has twenty-five years of experience as an occupational therapist. Twenty of those years include experience with persons affected by ASD and in the mental health sector;
·Her recommendation of 8 hours support worker assistance at a 2:1 ratio per day is not based on any ‘exact exercise’. It was an opinion provided following a breakdown of tasks, bearing in mind that Mr Stewart would have ‘good days’ where he only required six hours and ‘bad days’ where he may require ten hours;
47 STB11
·When Mr Stewart was calm and regulated, tasks such as showering and toileting required assistance from one support worker. However, when heightened and dysregulated he would require two support workers;
· Ms Fox acknowledged:
oThat the changing of Mr Stewart’s continence pads would be difficult for one person to manage; and
othat Mr Stewart had multiple baths each day, generated large volumes of laundry and had severe noise sensitivity.
·Notwithstanding these acknowledgements Ms Fox’s recommendation remained unchanged. She did however emphasise that her recommendation of 8 hours 2:1 ratio per day was a ‘guide’.
CONSIDERATION
Preliminary
80. Mr Stewart was granted access to the scheme, some years ago, on the basis that he met the disability requirements in respect of his diagnosis of autism.
81. The notation in respect of s34(1)(aa) of the NDIS Act provides as follows:
Note: For the purposes of paragraph (aa):
(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports;
82. In reference to this notation the Agency contends that for the purposes of s34(1)(aa) of the NDIS Act, the time at which Mr Stewart meets the disability requirements is the date upon which the Tribunal approves Mr Stewart’s SOPS. The Agency relies on the report of Ms Orla Fox 48 and submits that, for the purpose of this review, Mr Stewart meets the disability requirements on account of his impairments in respect of his communication, social interaction, ability to self-care and self-manage.
48 TB38.
SUPPORTED INDEPENDENT LIVING (SIL)– Support worker assistance
83. Mr David Stewart seeks on behalf of his son SIL as follows:
· a 2:1 ratio of support worker assistance for 16 hours during the day; and
· a 1:1 ratio, inactive, of support worker assistance for 8 hours during the evening and overnight.
84.The Agency submits as a reasonable and necessary support SIL as follows:
· a ratio of 1:1 support worker assistance for twenty-four hours per day (excluding social, community and civic participation), with an ‘inactive’ overnight component for 48 weeks of the year; and
· a ratio of 2:1 support worker assistance for four hours per day, each day which can be used flexibly at home or in the community for 52 weeks of the year, comprising of:
o 20 hours of weekday rate at a ratio of 2:1 (standard intensity pricing); and
o 4 hours of Saturday rate at a ratio of 2:1 (standard intensity pricing); and
o 4 hours of Sunday rate at a ratio of 2:1 (standard intensity pricing).
Is support worker assistance necessary to address the needs of Mr Stewart arising from the impairment in relation to which he met the disability requirements?
Section 34(1(aa) NDIS Act
85. Based on the evidence I am satisfied that Mr Stewart:
· is unable to manage his self-care needs which include his continence, toileting, bathing and feeding;
· is largely non-verbal and has extreme difficulty communicating;
· has severe sensory sensitivities which cause sensory overload. He is prone to dysregulation, impulsive behaviours and engaging in unpredictable dangerous and risky behaviours. This affects and restricts Mr Stewart’s ability to safely access the community and interact socially with others unaccompanied; and
· has no capacity whatsoever to self-manage himself and is completely reliant on others in this domain.
86. Support worker assistance will ensure that Mr Stewart’s self-care and self- management needs are met and managed. It will also allow Mr Stewart to access the community safely for social interaction in an environment outside of the family home.
87. I am satisfied that support worker assistance will address Mr Stewart’s needs that arise as a consequence of his impairments in relation to his self-care, self- management, communication and social interaction.
88. Section 34(1) (aa) of the NDIS Act is satisfied.
Goals, objectives and aspirations - s 34(1) (a) NDIS Act
89. I am satisfied that Mr Stewart’s father, despite is best efforts, is unable to manage his son’s self-care needs without assistance from others. Mr Stewart is an adult male who requires a significant amount of physical support to manage his self- care, which is for the most part, beyond the physical capacity of his father in an independent capacity.
90. By funding a support worker, Mr Stewart’s self-care needs will be supported in his home. This includes his toileting and bathing, which will be hygienically managed with a level of dignity.
91. He will also be able to access the community safely and with a level of supervision, care and support that his father is unable to provide on his own.
92. By funding a support worker Mr Stewart will therefore feel supported in his home in relation to his self-care needs. He will also have the ability to access the community and work on learning how to regulate his emotions in the context environmental triggers.
93. Support worker assistance will therefore assist Mr Stewart in pursuing his goal of feeling supported in his home and learning how to regulate his emotions.
94. Section 34(1)(a) of the NDIS Act is satisfied.
Social and economic participation - s34 (1) (b) NDIS Act
95. It is unsafe for Mr Stewart to access the community unaccompanied. Support worker assistance will allow Mr Stewart to access the community for a variety of social activities which include swimming, playing golf or visiting parks and shopping centres. When Mr Stewart visits shopping centres he purchases food that he enjoys eating. When he plays golf or swims at a local swimming pool he must pay for these activities.
96. I am satisfied that support worker assistance will assist Mr Stewart to undertake activities that facilitate both his social and economic participation.
97.Section 34(1)(b) of the NDIS Act is satisfied.
Value for money – s34(1)(c) NDIS Act and Effective and Beneficial – s34(1)(d) NDIS Act
98. Mr David Stewart seeks on behalf of his son a 2:1 ratio of a support worker assistance for 16 hours throughout the day when Mr Stewart is active. He accepts that a 1:1 ratio for support worker assistance (inactive) for 8 hours overnight is a reasonable and necessary support.
99. The Agency submits that a ratio of 2:1 support worker assistance for a period of only 4 hours a day is a reasonable and necessary support. The point of contention between the parties is therefore the level of 2:1 support worker assistance that Mr Stewart requires during the day when he is active.
100.Mr David Stewart refers to the following matters:
· The current funding of 1 support worker during the day with Mr David Stewart as the ‘second support person’ during the day has resulted in his significant carer burnout;49
· His health has been adversely affected due to the level of care he has provided to his son over the years;
· Mr Stewart constantly pulls on his father’s head and shoulders. This has caused him to have cervical spondylosis. He also has required several operations including carpal tunnel, knee and hernia surgery which he attributes to the physical strain of caring for his son;
· He requires further carpal tunnel and hernia surgery;
· He is effectively ‘on call’ 24 hours of each day;
49 T12.
· He has no time whatsoever to himself;
· He is 52 years of age. He worries that the stress and strain of caring for his son will affect his own longevity. He ‘wants to stay alive a bit longer’;
· Mr Stewart is constantly on the move, leaving the home several times each day to access the community for activities that help with dysregulation;
· Time delays in changing from one activity to another are a ‘trigger’ for Mr Stewart and cause him to dysregulate;
· Mr Stewart is driven in a car each night usually by his father to help with dysregulation before he goes to sleep;
· Mr Stewart’s behaviours, particularly when in the community, require two people to be managed. Historically he has absconded and been at risk to himself and the community;
· Mr Stewart’s continence, insofar as the use of his bowels, cannot be managed by one person. Due to his diet there are days when he can have three to five bowel movements; and
· Mr Stewart takes multiple baths each day to help with dysregulation. His bathing regularly requires management by two people particularly if Mr Stewart is heightened.
101.The Agency submits that;
In her report of August 2023, Ms Sweeney recommends the Applicant be provided with 2:1 support during active hours and 1:1 support when he is asleep (T5, 100). Ms Sweeney opines that the purpose of the support was reportedly in response to an escalation in the Applicant’s behaviours of concern in 2021 (T5, 100). The Respondent notes that there is no evidence before the Tribunal relating to the Applicant’s reported increased in behaviours of concern in 2021. There is no evidence demonstrating that the Applicant’s behaviours of concern remain of a level that requires 2:1 support, as they reportedly did in 2021. The Respondent notes that in the period since 2021, the Applicant has returned to his father’s care. There is no recent evidence relating to the impact of this change in arrangement on the Applicant’s behaviours of concern.50
102. In its Statement of Facts Issues and Contentions dated 6 September 2024 the Agency also refers to the following:
· The undated report of Ms Swadling, which recommended a 2:1 support worker ratio for a three-month period with a ‘fade out plan’;
50 Respondent’s SFIC dated 6/9/24.
· There are limited behaviour incident reports before the Tribunal;
· There is no clinical basis for a ratio of 2:1 support at all awake times;51and
· That a ratio of 2:1 support would amount to a duplication of supports. 52
103.In closing submissions the Agency referred to the following:
·with significant emphasis, the cost of providing support worker assistance at a 2:1 ratio for 16 hours each day as compared to 4 hours each day. In this regard the Agency identified as a cost difference the sum of approximately
$372,852.47. The Agency submits that this is not an ‘insignificant amount’ and that the costs of this ratio of SIL for 16 hours per day are not value for money in accordance with the requirements of Rule 3.1 of the Supports Rules; and
·The difficulty of decision making in respect of vulnerable and disabled members of the community in the context of ensuring the financial sustainability. Of relevance the Agency refers to the following commentary by Justice McAvoy in NDIA v LWVR:53
At least in the abstract, these submissions have much to commend them. Although decisions must be made on the basis of the individual circumstances of the Scheme participant, and “hard lines” cannot be drawn (NDIA v
WRMF [2020] FCAFC 79; (2020) 276 FCR 415, [142]-[143] (Flick, Mortimer
and Banks-Smith JJ)), plainly resources are not unlimited. Difficult judgments will often need to be made as to how limited health funds can best be allocated to the maximum advantage of the maximum number of recipients of those funds: see, in a different context, R v Cambridge Health Authority (Ex parte B) [1995] EWCA Civ 49; [1995] 2 All ER 129 at 137 (Sir Thomas Bingham MR). This is obviously so in the context of the administration of the Scheme under the NDIS Act.
104. I am satisfied that the funding of a 2:1 ratio for support worker assistance for 8 hours per day is a reasonable and necessary support having regard to the requirement of s34(1)(c) of the NDIS Act. My considerations are as follows:
· Mr David Stewart’s evidence was persuasive. It was evident that he had an intimate understanding of the complexities and realities of his son’s disabilities. I found his evidence to be truthful, reasonable and persuasive. His selfless commitment to his son is commendable;54
51 Ibid at [38]
52 Ibid at [39] Rule 5.1(c) Supports Rules
53 [2021] AATA 4822 at [12]
54 Section 4(12) NDIS Act.
· Mr Stewart has significant continence needs. These needs are considerable. They are also unpredictable and occur regularly;
· Mr Stewart’s continence needs, particularly in respect of the use of his bowels cannot be managed by one person. This includes the use of his bowels both at home and in the community. When he is soiled, he will kick and remove his soiled clothes before he has even reached a toilet facility. His hygiene therefore cannot be managed with any level of competence or dignity by one person;
· In order to manage his dysregulation Mr Stewart accesses the community multiple times throughout the day. The activities in the community which he accesses include driving in a motor vehicle for lengthy periods of time when he is heightened, visiting parks, swimming, playing golf and visiting shopping centres;
· Mr Stewart has a limited concentration span. When transitioning from one activity to another ‘times delays’ are a significant ‘trigger’ and cause him to dysregulate;
· It is unsafe to both Mr Stewart and the community, for him to access the community without the supervision of two people;
· Mr Stewart also manages his dysregulation with multiple baths each day. When he is heightened two people are required to manage tasks such as drying him off and dressing him;
· Mr Stewart has a propensity to ‘lash out’. He must travel in a motor vehicle wearing a safety harness as a restrictive practice. Two people are required to manage this restrictive practice;
· Other features of Mr Stewart dysregulation include headbutting, head banging, rocking, absconding and throwing objects. Mr Stewart dysregulates regularly and these behaviours continue to occur. He is estimated to headbutt others 100 time per year;
· Mr Stewart’s dysregulation is better managed by two people as he is more willing to cooperate when two people are negotiating his de-escalation;
· Certain sensory triggers cause Mr Stewart to dysregulate and it is best that Mr Stewart leave the home when these triggers occur. These triggers include the noise of the vacuum cleaner, lawn mower and washing machine;
· Ms Sweeney recommends 2:1 ratio during the day to ensure his safety and engagement in social activities as well as activities of daily living, such as grooming self-care, toileting, dressing and meal preparation;
· Ms Swadling’s report which refers to a ‘2:1 staffing ratio for a minimum of a 3-month period with a fade out plan’ is not persuasive as it is no longer current and relevant to his current living circumstances;
· Mr Sletcher’s reports were persuasive. He recommended a 2:1 ratio for 14 hours per day. Mr Sletcher identified that Mr Stewart behaviours were impulsive and erratic and can change in a few seconds. Also, that Mr Stewart had no safety awareness. Relevantly, Mr Sletcher described the roles of each support worker when accessing the community to be very different but equally important for the safety of both Mr Stewart and the community;
· Ms Cluney’s report was also highly persuasive. She recommended a 2:1 support ratio in the community and at home during his ‘awake’ hours.55 Ms Cluney identified that it was simply not possible for Mr Stewart to remain in his home for 8 hours of each day. This aspect is highly relevant in the context of the management of Mr Stewart’s dysregulation through the use of activities in the community as referred to above;
· Ms Fox’s report was also persuasive. She recommended approximately 8 hours per day of 2:1 care for mealtimes, shower times and community- based activities and appointments. Ms Fox appropriately acknowledged that her recommendation was not an exact exercise but rather a ‘guide’ to the Tribunal.
105.I am satisfied that:
· Mr Stewart suffers from severe dysregulation;
· Mr Stewart’s dysregulation is largely managed by him accessing the community multiple times each day with activities such as driving in a car, visiting a park and shopping centres and other various activities;
· Mr Stewart cannot remain at home 8 hours of each day;
55 TB23
· Mr Stewart must have a 2:1 support worker ratio when he accesses the community. If he does not, the safety of both himself and the community are at risk;
· Mr Stewart also manages his dysregulation with multiple baths each day. When heightened however he requires 2:1 support worker ratio.
· Mr Stewart’s continence and hygiene needs cannot be managed by a 1:1 support worker ratio whether he is at home or in the community.
106. I do not accept that Mr Stewart’s dysregulation and continence can be managed by a 2:1 ratio of support worker assistance for 4 hours each day. Such an allowance is inadequate. It is particularly unrealistic in terms of his need to access the community several times each day for dysregulation and having regard to the practical reality of the use of his bowels.
107. Exercising my decisional freedom56 I am satisfied that a 2:1 ratio of support worker assistance for 8 hours each day represents value for money as a reasonable and necessary support for Mr Stewart. With 8 hours of a 2:1 ratio Mr Stewart’s life stage outcomes will substantially improve and be of long-term benefit to him. He will benefit from having his continence needs managed hygienically with a level of competence, privacy and dignity. He will also benefit from being able to access the community multiple times each day within an 8-hour window which will greatly assist him with dysregulation.
108. I am also satisfied that there are no other options of a comparable support which would achieve the same outcome for Mr Stewart at a lower cost.57
109. In closing submissions the Agency accepted that 2:1 support worker assistance during the day would be effective and beneficial for Mr Stewart in accordance with s34(1)(d) of the NDIS Act. Based on the evidence, particularly the lived experience of Mr David Stewart this is a reasonable and proper submission.
110.Section 34(1)(c) and section 34(1)(d) of the NDIS Act are both satisfied.
56 WRMF and National Disability Insurance Agency [2019] AATA 1771 at [143]
57 Rule 3.1(a)
Reasonable family, carer and other support – section 34(1)(e) NDIS Act
111. The Agency submits that a 2:1 ratio does not take in account of what support it is reasonable to expect that Mr Stewart’s family, in particular his father, to provide by way of support.
112. I am satisfied that Mr David Stewart is thoroughly exhausted and burnt out. Also, that he is affected by severe carer fatigue.58 I accept that Mr David Stewart has no time to himself. He has selflessly applied his best efforts to meet his son’s care and support needs over many years to the detriment of his owns needs, wants and desires.
113. Mr Sletcher’s assessment of Mr David Stewart indicates that he is at high risk of carer burnout and requires immediate support and intervention.
114. I am satisfied that Mr Stewart has no other informal supports other than his father and that Mr David Stewart provides a level of support which is beyond the reasonable limit of what can be expected from a 52 year old single parent.
115.Section 34(1)(e) of the NDIS Act is satisfied.
Is SIL a NDIS Support -s34(1)(f) NDIS Act
116. The Agency submits that SIL is a NDIS Support for the purposes of section 10 of the NDIS Act. Having regard to items 14(a), 14(d), 15 (a), 15 (f) and 27 (a) of Schedule 1 of the NDIS Supports Transitional Rules I accept this submission.
117. Despite the inclusion of SIL as a NDIS Support for the purposes of s10 of the NDIS Act, section 7 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 provides as follows:
Requirement for supports to be most appropriately funded or provided through the National Disability Insurance Scheme
(1)This section applies in relation to a statement of participant supports included in an old framework plan for a participant if the statement is approved or varied during the period:
(a)starting on the commencement of Schedule 1 to the amending Act; and
58 Exhibit 4
(b)ending immediately before the commencement of the first National Disability Insurance Scheme rules made for the purposes of paragraph 35(4)(d) of the NDIS Act (as added by Schedule 1 to the amending Act).
(2)For the purpose of specifying in the statement the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of the matter mentioned in subsection (3) in relation to the funding or provision of each such support, in addition to the matters of which the CEO must be satisfied as mentioned in subsection 34(1) of the NDIS Act, as in force on and after the commencement of Schedule 1 to the amending Act.
(3)The matter of which the CEO must be satisfied is that 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:
(a)as part of a universal service obligation; or
(b)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability
…………………………………………...
118. Section 7 of the NDIS Miscellaneous Transitional Rules thus requires that until further rules are made59 the Tribunal must also be satisfied that the support is most appropriately funded or provided through the scheme, and not more appropriately funded or provided through other general systems of service delivery or support services. (Tribunal emphasis)
119. I am satisfied that SIL for Mr Stewart is most appropriately funded though the scheme and no submission was made to the contrary.
120.Section 34(1)(f) of the NDIS Act is satisfied.
59 35(4)(d) of the NDIS Act
Conclusion – SIL – Support worker assistance.
121.The following SIL is a reasonable and necessary support for Mr Stewart:
·1:1 ratio of support worker assistance for 16 hours per day for 48 weeks per year;
·1:1 ratio of support worker assistance for 8 hours overnight (inactive) for 48 weeks per year;
·2:1 ratio of support assistance for 8 hours per day to be used flexibly in the home and the community for 52 weeks per year.
SHORT TERM ACCOMODATION (STA)
122.Mr Stewart is currently funded for 28 days per year of STA.
123. Mr David Stewart seeks on behalf of his son 42 days per year of STA at a ratio of 2:1 support worker assistance.
124. The Agency submits as a reasonable and necessary support 28 days per year of STA comprised as follows:
· 20 days per year of STA weekday rate at a ratio of 1:1, and
· 4 days per year of STA Saturday rate at a ratio of 1:1, and
· 4 days per year of STA Sunday rate at a ratio of 1:1.
125. The Agency submits that the provision of STA is confined to 1:1 support worker ratio and on this basis its submission is made for four hours of 2:1 ratio of support for Mr Stewart for 52 weeks of the year. 60
126. I am persuaded by the evidence of Ms Fox and her opinion that the regular use of STA would be disruptive for Mr Stewart and would not contribute to his improved functional capacity or ability to manage more independently his daily living skills. Ms Fox also states that the purpose of STA is for the respite of Mr David Stewart.
127. I accept that the focus of respite is not for the benefit of Mr Stewart, rather it is for the benefit of Mr David Stewart. That is not to say that a benefit for Mr David Stewart does not fall within in the scope and ambit of the scheme.61
60 Para [84]
61 S 4 (12) NDIS Act
128. Notwithstanding, I am not satisfied that there is sufficient evidence for me to be positively satisfied that an additional 14 days of STA represents value for money 62, will be effective and beneficial for Mr Stewart 63 and does not represent a duplication of supports.64 I am also mindful that financial sustainability is integral to the administration of the scheme.
129. I am therefore satisfied that 28 days of STA remains a reasonable and necessary support for Mr Stewart.
OCCUPATIONAL THERAPY
130. Mr David Stewart seeks on behalf of his son 65 hours of occupational therapy per year. The Agency submits, based on the evidence, that 65 hours of occupational therapy is a reasonable and necessary support.
131. Having considered the evidence I am also satisfied that 65 hours of occupational therapy is a reasonable and necessary support for Mr Stewart. In this regard I refer to the recommendation of Mr Sletcher of 65 hours of occupational therapy per year which includes a component for travel and report writing. 65
62 S34(1)(c) NDIS Act
63 S34(1)(c) NDIS Act
64 Rule 5.1(c) Supports Rules
65 Exhibit 4
SPEECH THERAPY
132. Mr David Stewart seeks on behalf of his son 52 hours of speech therapy per year. The Agency submits that 56 hours per year of speech therapy is a reasonable and necessary support.
133. Having considered the evidence I am satisfied that 56 hours of speech therapy is a reasonable and necessary support for Mr Stewart. 66
DIETICIAN
134. Mr David Stewart seeks on behalf of his son 54 hours of dietician support. He relies on the reports of Ms McCausland and Mr Sletcher.67
135. Dietician services are a NDIS Support for the purposes of section 10 of the NDIS Act pursuant to item 16(a) of Schedule 1 of the NDIS Supports Transitional Rules.
136. The Agency does not agree and submits than a ‘six-hour assessment’ by a dietician is a reasonable and necessary support for the following reasons:
·Ms McCausland’s report was prepared at a time when Mr Stewart was not residing with his father, as such it is no longer relevant; and
·Despite providing a recommendation in respect of this support, Mr Sletcher conceded in cross examination that he had no expertise as a dietician;
·An up-to-date assessment by a dietician will enable the Agency to be better placed to understand the nature of Mr Stewart’s needs and the possible benefits of the ongoing services of a dietician.
66 Exhibit 4
67 T8, Exhibit 4
137. I accept the Agency’s submission. The recommendation of Ms McCausland does not consider Mr Stewart’s current domestic circumstances. Mr Stewart now lives with his father and is two and half years older. His father is actively involved in his food preparation and his involvement is an important consideration in relation to any recommendation and implementation of dietician support. Mr Sletcher’s recommendation is also not persuasive in the context of his concession. As such, I cannot be positively satisfied that 54 hours of dietitian support is a reasonable and necessary support.
138. I do however consider that the Agency’s proposal of a six-hour assessment by a dietician is a sensible and appropriate ‘starting point’ and should be included in Mr Stewart’s SOPS. This assessment will provide the Agency with an understanding of Mr Stewart’s needs so that it can make an informed decision with respect to such funding. Pursuant to s48 of the NDIS Act, and on the basis of any recommendation by a dietician Mr Stewart can then seek a reassessment of his plan with a request for the inclusion of dietician support in his SOPS. Likewise the Agency can, of its own initiative re-assess Mr Stewart’s plan on the basis of this further information.
EXERCISE PHYSIOLOGY
139. Mr David Stewart seeks on behalf of his son 65 hours of exercise physiology per year.
140. Exercise physiology is a NDIS Support for the purposes of section 10 of the NDIS Act pursuant to item 18 of Schedule 1 of the NDIS Supports Transitional Rules.
141. The Agency submits than a ‘six-hour assessment’ by an exercise physiologist is a reasonable and necessary support for the following reasons:
·Mr Stewart seeks this support on the basis of Mr Sletcher’s recommendation, yet Mr Sletcher conceded in cross examination that he had no expertise as an exercise physiologist;
·There is insufficient evidence from a suitably qualified exercise physiologist to enable the Tribunal to understand what, if any, are Mr Stewart’s needs in so far as the services of an exercise physiologist;
·An assessment by an exercise physiologist will enable the Agency to be better placed to understand the nature of Mr Stewart’s needs and the possible benefits of exercise physiology as a support.
142. In the absence of such evidence and in light of Mr Sletcher’s concession I am not positively satisfied that 65 hours of exercise physiology is a reasonable and necessary support for Mr Stewart.
143. I consider that the Agency’s proposal of a six-hour assessment by an exercise physiologist is a sensible and appropriate ‘starting point’ and should be included in Mr Stewart’s SOPS. This assessment will provide the Agency with an understanding of Mr Stewart’s needs so that it can make an informed decision with respect to such funding. Pursuant to s48 of the NDIS Act, and in the basis of any recommendation by an exercise physiologist Mr Stewart can then seek a reassessment of his plan with a request for the inclusion of exercise physiology support in his SOPS. Likewise the Agency can, of its own initiative re-assess Mr Stewart’s plan on the basis of this further information.
PERSONAL TRAINING, HYDROTHERAPY, MUSIC THERAPY
144.Mr David Stewart seeks on behalf of his son;
·52 hours of personal training;
·65 hours of hydrotherapy; and
·45 hours per year of music therapy.
145.Again Mr Stewart relies of the recommendations of Mr Sletcher.
146.In respect of these supports the Agency makes the following submissions:
· Mr Sletcher is neither a personal trainer, hydro-therapist or a music therapist;
· The funding of personal training is prohibited pursuant to item 4(q) of Schedule 2 of the NDIS Supports Transitional Rules which provides that the following is not a NDIS Support for the purposes of section 10 of the NDIS Act;
‘general health, fitness, social or recreational activity costs or services’
· The funding of music therapy is prohibited pursuant to item 9 of Schedule 2 of the NDIS Supports Transitional Rules which provides that the following is not a NDIS Support for the purposes of section 10 of the NDIS Act;
‘sound therapy’
147. The Agency proposes the funding of a ‘6-hour assessment’ for any ‘other therapy’ which is permitted pursuant to schedule 1 of the NDIS Supports Transitional Rules.
148. I am satisfied that funding for personal training and music therapy is not a NDIS Support for the purposes of s10 of the NDIS Act.
149. In the absence of any contention by the Agency and having regard to item 34 of schedule 1 of the NDIS Supports Transitional Rules, hydrotherapy is ‘within the scope’ for consideration as a NDIS support. Notwithstanding, there is insufficient evidence before the Tribunal to be satisfied that hydrotherapy is an evidenced-based support that will help, maintain or improve Mr Stewart’s mobility and movement. As such I cannot be satisfied that 65 hours of hydrotherapy is reasonable and necessary support for Mr Stewart.
150. I do consider however that the Agency’s proposal of a 6-hour assessment for any ‘other therapy’ as is permitted pursuant to schedule 1 of the NDIS Supports Transitional Rules is a sensible and appropriate ‘starting point’ and should be included in Mr Stewart’s SOPS. This assessment will provide the Agency with an understanding of Mr Stewart’s needs so that it can make an informed decision with respect to funding any other therapy that may be a reasonable and necessary support for Mr Stewart.
151. For the reasons referred to at [140] reassessment Mr Stewart’s plan in respect of such other therapy will thereafter be permitted.
BEHAVIOUR SUPPORT
152. The Agency submits that the following funding is a reasonable and necessary support for Mr Stewart;
o 120 hours per year for specialist behavioural interventional; and
o 30 hours per year for training in behaviour management strategies.
153. Specialist positive behaviour support is a NDIS Support for the purposes of section 10 of the NDIS Act pursuant to item 10 of Schedule 1 of the NDIS Supports Transitional Rules.
154. Mr David Stewart on behalf of his son agrees that the Agency’s proposal for such an allowance is appropriate.
155. The oral evidence of Ms Cluney was particularly persuasive in relation to this support. I am satisfied that the Agency’s submission is appropriate and that the nature and level of behaviour support proposed by the Agency is reasonable and necessary support for Mr Stewart.
CLEANING
156. Currently there is no allowance in Mr Stewarts’s SOPS for cleaning. Mr David Stewart seeks on behalf of his son 12 hours per week for cleaning. This request is based on the following:
· The fact that currently a professional cleaner is engaged to clean the family home for four hours twice a week;
· That despite this level of cleaning service, Mr David Stewart is still required to undertake cleaning tasks;
· That Mr David Stewart operates a ‘disability business’ and as such requires this level of support;
· That a significant amount of regular cleaning is required on account of Mr Stewart’s behaviours.
157. Assistance with household tasks including cleaning is a NDIS Support for the purposes of section 10 of the NDIS Act pursuant to item 23 of Schedule 1 of the NDIS Supports Transitional Rules.
158. Mr Sletcher, in his report recommends 8 hours of cleaning service each week. Under cross examination Mr Sletcher conceded that this recommendation was based on the general ‘household’ cleaning requirements.
159. The Agency contends that twelve hours of cleaning is excessive and that this amount is attributable to the requirements of the ‘household’ and not Mr Stewart himself.
160. The Agency submits that 2 hours per week is a reasonable and necessary support for Mr Stewart and more accurately reflects the cleaning needs that can be attributed to Mr Stewart.
161. Mr Stewart lives with his father in a three-bedroom house which has one bathroom and a separate toilet. The home has a tiled floor with the exception of the kitchen floor which is timber.
162. I have considered the evidence Mr David Stewart and also the duties of support workers in respect of tasks which include, general tidying of the home, laundry and housekeeping. I have also considered that fact that Mr Stewart has virtually no capacity to assist with this task and as a result of his behaviours creates a significant amount of ‘mess’ in the home on a regular basis. This includes such behaviours as throwing meals across the room, spilling food and drinks and carrying amounts of dirt into the house with his feet and shoes. I have also considered Mr David Stewart’s role as an informal carer, his age and his level of carer burnout.
163. Using my decisional freedom,68 I consider that four hours of cleaning per week is a reasonable and necessary support for Mr Stewart. In this regard I consider such an allowance takes into account the level of cleaning of the home that is required as a consequence of Mr David Stewart also residing in the home.
HOME MAINTENANCE
164. Mr David Stewart seeks on behalf of his son home maintenance including repairs of damage caused by Mr Stewart and also lawn mowing.
68 WRMF and National Disability Insurance Agency [2019] AATA 1771 at [143]
165. The Agency submits it appreciates that certain home maintenance costs relate to Mr Stewart and his behaviours. Notwithstanding, the Agency refers to the following:
· item 23(b) of Schedule 1 of the NDIS Supports Transitional Rules which provides that the following is a NDIS Support for the purposes of section 10 of the NDIS Act:
‘house and yard maintenance’;
· item 1(e) of Schedule 2 of the NDIS Supports Transitional Rules which provides that the following is not a NDIS Support for the purposes of section 10 of the NDIS Act:
‘standard home repairs, home improvements, standard renovations and maintenance’;
· No persuasive documentary evidence whatsoever was provided to the Tribunal in relation to home maintenance as a support;
· Arguably, the maintenance costs that Mr David Stewart broadly refers to may not be ‘standard ‘costs for the purposes of item 1(e) of Schedule 2 of the NDIS Supports Transitional Rules, however there is insufficient evidence for the Tribunal to be positively satisfied in this regard.
166. I accept the Agency’s submission. Mr David Stewart’s submission lacks sufficient detail and particularisation. This includes any appropriate and adequate explanation to the Tribunal. The Tribunal does have a level of decisional freedom, however this level of freedom does not extend to ‘guess work’. To engage in guess work, would in my view, disregard the objects of the NDIS Act and the Tribunal’s obligation to consider and take into account the need to ensure the financial sustainability of the Scheme pursuant to section 3(3)(b) of the NDIS Act.
167. I am therefore unable to be positively satisfied that such a ‘broadly framed’ request for funding of ‘home maintenance’ for the purpose of this review is a reasonable and necessary support for Mr Stewart.
TRANSPORT
168. Mr David Stewart seeks on behalf of his son transport costs, including petrol, oil, taxi expenses, wear and tear on his motor vehicle. No persuasive
documentary evidence whatsoever was provided to the Tribunal in relation to this support.
169.The Agency refers to the following:
· Mr Stewart is already funded within his current SOPS for ‘level 1 transport’ in the sum of $1,784.00 per year;
· Item 6(b) of Schedule 2 of the NDIS Supports Transitional Rules provides that the following day-to day living costs – travel and transport are not a NDIS Support for the purposes of section 10 of the NDIS Act:
‘Vehicles, including motor vehicles, motorbikes……’
· Item 6(d) of Schedule 2 of the NDIS Supports Transitional Rules also provides that the following day-to day living costs – travel and transport are not a NDIS Support for the purposes of section 10 of the NDIS Act:
‘mechanical repairs (except for repairs to vehicle modifications…..’
· Item 6 of Schedule 1 of the NDIS Supports Transitional Rules provides that the following ‘Assistance with travel or transport arrangements’ are a NDIS Support for the purposes of section 10 of the NDIS Act:
Supports that provide transport assistance to participants that cannot travel or use public transport independently.
This includes the following:
(a) transport for the purposes of participants undertaking community-based activities;
(b) transport for the purposes of participants attending school or other educational facilities;
(c)provider travel costs;
(d)costs associated with the use of taxis or private transport;
(e)in-kind specialist school transport;
(f) travel training to build a participant’s confidence and skills to use public transport safety and independently.
170. Mr Stewart already receives as a part of his SOPS funding for assistance with travel and transport arrangements. He provided no evidence which would persuade me that the current funding was insufficient as a reasonable and necessary support.
171. Arguably, although I am not convinced, a reference to ‘wear and tear’ may relate to item 6(d) of Schedule 1 of the NDIS Supports Transitional Rules, insofar as it relates to ’private transport ‘. The request for ‘wear and tear’ is however very
broad and without any level of particularisation. As such, I am unable to make any adequately informed decision in relation to this request so as to determine whether funding for ‘wear and tear’ is reasonable and necessary for Mr Stewart.
172. I am therefore not satisfied that Mr Stewarts request for the funding of transport costs is a reasonable and necessary support for Mr Stewart.
MEALS
173. Mr David Stewart seeks on behalf of his son funding for his meals. This is on the basis that due to his autistic traits Mr Stewart will often ‘throw’ several meals prepared for him across the room.
174. The funding of meals is prohibited pursuant to item 3(q) of Schedule 2 of the NDIS Supports Transitional Rules which provides that the following is not a NDIS Support for the purposes of section 10 of the NDIS Act;
‘(a) groceries including all food, beverage, cleaning, household and health products;
(b) fast food services, takeaway food and food delivery platforms.’
175. The funding of meals for Mr Stewart is therefore not a reasonable and necessary support.
CONSUMABLES
176.Mr David Stewart seeks on behalf of his son the following consumables:
· Rubber gloves;
· Laundry sanitiser’
· Disinfectant wipes;
· Disinfectant;
· Eucalyptus spray;
· QV body wash;
· Kylie pads for home and car;
· Fitted mattress protectors; and
· Hand sanitiser.
177. Under his current SOPS Mr Stewart is funded for $2,035.62 for a six-month period.69
178. No persuasive documentary evidence, including receipts or otherwise, or particularisation was provided to the Tribunal in relation to these items as supports. For this reason I am unable to even consider whether these supports are reasonable and necessary supports for Mr Stewart. This includes consideration of whether the current funding is sufficient.
179. Products to manage incontinence are a NDIS Support for the purposes of section 10 of the NDIS Act pursuant to item 9(e) of Schedule 1 of the NDIS Supports Transitional Rules.
180. Supports, services and assistive products to manage continence are also NDIS Support for the purposes of section 10 of the NDIS Act pursuant to item 16(a) of Schedule 1 of the NDIS Supports Transitional Rules
181. The Agency proposes what I consider is a commonsense and sensible approach with the funding of a continence assessment of 5 hours per year as a reasonable and necessary support. I agree with this approach. An assessment will provide an understanding of Mr Stewart’s continence needs with a recommendation of a continence package. Pursuant to s48 of the NDIS Act, and on the basis of any recommendation Mr Stewart can then seek a reassessment of his plan with a request for the inclusion of continence supports in his SOPS. Likewise the Agency can, of its own initiative re-assess Mr Stewart’s plan on the basis of this assessment.
PLAN MANAGEMENT
182. The Agency submits that the funding in respect of Mr Stewart’s SIL, which is currently plan managed should be agency managed.
183. This submission is made on the basis that the Agency wishes to ensure that all support workers engaged to support Mr Stewart are appropriately trained in restrictive practices and hold requisite registration to provide restrictive practices.
184. Section 9 of the NDIS Act defines a restrictive practice as ‘any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability.’
69 STB14
185. Section 73 of NDIS Act provides the requirements for the Registration of a person as a ‘registered NDIS provider’.
186. Section 7(2) of The National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 provides as follows:
‘A person must be registered under section 73E of the Act to provide a class of supports to a participant if, during the provision of the supports, there is, or is likely to be, an interim or ongoing need to use a regulated restrictive practice in relation to the participant.’
187.The following evidence was provided at the hearing:
·That restrictive practices are used on Mr Stewart in the form of the use of a harness whilst travelling in a motor vehicle;
·Mr Stewart’s current support workers are not registered under s73E of the NDIS Act to provide restrictive practices;
·Mr David Stewart has established a corporate entity registered as ‘Just Disability Pty Ltd’ under the Corporations Act 2001;
·In an email dated 11 November 2024 Mr David Stewart states;
I am writing to provide the requested documentation regarding the registration of my company, which was formally established on 28th October 2024, in compliance with the NDIS Safeguard Commission requirements. AS per the Commission’s guidelines, I have been granted a 6-month grace period to complete the necessary compliance steps.’
·The compliance steps insofar as registration of the support workers engaged by ‘Just Disability Pty Ltd’ to support Mr Stewart (which includes administering restrictive practices) has not been completed.
188. Mr David Stewart objects to the management by the Agency of funds used to provide SIL.
189. I accept Mr David Stewart’s reasons and intentions for establishing ‘Just Disability Pty Ltd’ are in the best interests of his son. I also do not doubt his honesty or integrity. Notwithstanding, in the event all necessary compliances and registration requirements in relation to this company are not satisfied by 28 April 2025 the management of Mr Stewart’s SIL is to be Agency Managed pursuant to s43(3)(d) of the NDIS Act.
DECISION
190. Pursuant to section 105 (c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with a direction that:
a) Within 14 days of this decision Mr Stewart’s statement of participant supports specifies the following supports as reasonable and necessary:
· Supported Independent Living comprised as follows:
o1:1 ratio of support worker assistance for 16 hours per day for 48 weeks;
o1:1 ratio of support worker assistance for 8 hours overnight (inactive) for 48 weeks;
o2:1 ratio of support worker assistance for 8 hours per day to be used flexibly in the home and the community for 52 weeks.
· 28 Days of Short-Term Accommodation (STA) comprised as follows:
o 20 days per year of STA weekday rate at a ratio of 1:1, and
o 4 days per year of STA Saturday rate at a ratio of 1:1, and
o 4 days per year of STA Sunday rate at a ratio of 1:1.
· 65 hours of occupational therapy per year;
· 56 hours of speech therapy per year;
· 6-hour assessment by a dietician;
· 6-hour assessment by an exercise physiologist;
· 6-hour assessment for ‘other therapy’;
· 120 hours per year for specialist behavioural intervention;
· 30 hours per year for training in behaviour management strategies;
· 4-hours cleaning per week;
· 5-hour continence assessment.
b) The date by which the Agency must reassess the Mr Stewart’s plan is to be
12 months after the date on which the supports in (a) above are included in the Mr Stewart’s statement of participant supports;
c) All other supports in Mr Stewart’s existing statement of participant supports are to be replicated pro-rata from the date of this decision until the reassessment date; and
d) Subject the requirements referred to in paragraph [189] of this decision the management of funding for reasonable and necessary supports is to remain the same as the management for those supports in the statement of participant supports dated 1 October 2024.
I certify that the preceding 189 (one hundred and eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins.
.......................[SGD]...........................
Associate
24 December 2024
Dates of hearing: 13, 14, 15 and
22 November 2024 Applicant: Mr Justyn Stewart
Advocate for the Applicant: Mr David Stewart
Solicitor for the Respondent: Mills Oakley
Counsel for the Respondent: Mr P Nolan
- AGLC
- Stewart and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2024] ARTA 76
- Case
- [2024] ARTA 76
- Decision Date
CaseChat Overview and Summary
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