TBDY and National Disability Insurance Agency

[2023] AATA 261

TBDY and National Disability Insurance Agency [2023] AATA 261 (24 February 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:2022/1204          

Re:TBDY

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member K. Parker

Date:24 February 2023

Place:Melbourne

Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the Decision Under Review and remits this matter to the Respondent with a direction that within 14 days of the date of this Decision, the Respondent is to facilitate the approval of a new statement of participant supports for the Applicant (New SOPS) which includes:

(a)       all the supports referred to in paragraphs [29] and [31] of the Reasons for Decision;

(a)a provision specifying that the reassessment date will fall on the three-year anniversary of the date of approval of the New SOPS;

(b)replication (on a pro-rata basis) of all other existing supports in the Applicant’s Current SOPS (except for any one-off funding which has already been expended, or any amounts to be paid by way of the undertakings by the Respondent as referred to in paragraph [30] of the Reasons for Decision, or any funding for supports to be replaced by the supports referred to in paragraphs [29] and [31] of the Reasons for Decision); and

(c)provisions specifying that the plan is to be managed as presently specified in the Applicant’s current SOPS, and that any new funding approved, resulting from this Decision, be “self-managed”.

................................[sgd]........................................

Senior Member K. Parker

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – review of internal review decision by the National Disability Insurance Agency (NDIA) regarding decision to approve a statement of participant supports (SOPS) for the Applicant – Applicant is a child participant in the National Disability Insurance Scheme (NDIS) – Applicant’s mother seeks funding for several supports and a notional plan duration of three years – whether requested supports are “reasonable and necessary supports” under s 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) – consideration of the type and level of supports which are “reasonable and necessary supports” – the NDIA considers that virtually all of the requested supports meet the “reasonable and necessary supports” criteria and agreed to the Applicant’s proposed notional plan duration of three years - decision under review set aside and remitted with directions to facilitate the making of a new SOPS for the Applicant to include virtually all of the requested supports with a notional plan duration of three years

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)

Cases

McGarrigle v National Disability Insurance Agency (2017) 157 ALD 520
National Disability Insurance Agency v McGarrigle (2017) 157 ALD 458

REASONS FOR DECISION

Senior Member K. Parker

24 February 2023

BACKGROUND

1. The Applicant, TBDY, is a 6-year-old girl living with a disability arising from several impairments. She was granted access as a participant in the National Disability Insurance Scheme (NDIS). TBDY has one older sibling, RKVM, aged 8, who also lives with a disability arising from several impairments and has been granted access as a participant in the NDIS.

2. TBDY’s mother is TBDY’s child representative. TBDY’s mother states that TBDY does not have any other informal supports. TBDY’s father separated from TBDY’s mother in early 2022, lives interstate and, reportedly, is not involved to any significant extent with TBDY or RKVM. TBDY’s mother told the Tribunal at the hearing that TBDY does not presently have a support coordinator assisting TBDY (or RKVM).

3. TBDY’s mother was unrepresented at the substantive hearing. However, she received support from an acquaintance who is an occupational therapist (Ms OT). Ms OT has volunteered to assist TBDY and her mother in this proceeding. Ms OT has not been involved in the treatment of TBDY, or RKVM. The Tribunal acknowledges the support that Ms OT has provided to TBDY, her mother and the Tribunal, at the substantive hearing on a gratis basis.

4. TBDY’s mother is a qualified speech pathologist. At the Tribunal, TBDY’s mother told the Tribunal that on average, she works on a self-employed basis during school term periods for about 19 hours per week. During term breaks, TBDY’s mother said that due to the demands of caring for her two children, she only works for an aggregate period of approximately 10 hours over the two-week mid-term breaks. TBDY’s mother also gave evidence that during the summer school holidays, she had only worked for about four hours over the six-week period.

5. The Tribunal’s power to undertake a review in this matter arises under s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), operating in conjunction with s 103 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).

6. TBDY’s mother states that TBDY has been diagnosed as having the following conditions:

   (a)Autism Spectrum Disorder (ASD), Level 3;

   (b)global developmental delay; and

   (c)severe intellectual disability.

7. TBDY’s mother states that TBDY also has provisional diagnoses of:

   (a)pica (an eating disorder);

   (b)childhood apraxia of speech; and

   (c)sensory processing disorder.

8. TBDY has commenced at a special school for children who have an IQ of less than 50.

9. On 27 October 2020, a delegate of the Chief Executive Officer (CEO) of the NDIA undertook an unscheduled plan review under s 48 of the NDIS Act and approved a statement of participant supports (SOPS) for TBDY for a notional period of 12 months. TBDY’s total funded supports in this SOPS was $88,337.80 and it specified that all funding was to be “self-managed”.

10. On 2 September 2021, a delegate of the CEO approved a further SOPS for TBDY for a notional period of 12 months. TBDY’s total funded supports in this SOPS was $88,337.80.

11. On 22 November 2021, a delegate of the CEO undertook another unscheduled plan review under s 48 of the NDIS Act and approved a SOPS for TBDY for a notional period of 12 months. TBDY’s total funded supports under this SOPS was $79,572.10.

12. TBDY’s mother sought review of the decision to approve the SOPS approved in November 2021, by a “reviewer” of the NDIA under s 100 of the NDIS Act.

13. On 23 December 2021, the “reviewer” stated that TBDY’s mother had sought review in relation to the funding for continence products, as part of the core consumables budget, and additional therapies, as part of the capacity building activities budget. The “reviewer” varied the reviewable decision dated 19 November 2021 after accepting that the requested continence products were “reasonable and necessary supports” (Decision Under Review). The “reviewer” did not accept that the requested additional therapies were “reasonable and necessary supports” and confirmed the reviewable decision in that regard. The new SOPS resulting from this decision by the “reviewer”, was approved on 23 December 2021 and approved total funded supports of $81,116.68 for a notional 12-month period.

14. On 11 February 2022, TBDY’s mother sought review of the Decision Under Review by this Tribunal under s 103 of the NDIS Act. Two further SOPS have been approved for TBDY since this application was lodged with the first commencing on 21 September 2022 and the second SOPS commencing on 16 January 2023 (Current SOPS). The Current SOPS has approved total funding of a greatly increased level of funding, that is, $327,582.14 over the 12-month notional period of the plan.

    ISSUES

15. The issues in this proceeding are:

    (a)what type and level of supports are “reasonable and necessary supports” for TBDY under s 34(1) of the NDIS Act and should be included in her SOPS and funded under her NDIS plan; and

    (b)if a new SOPS is to be approved for TBDY, what should be the notional duration of the new NDIS plan for TBDY (that is, what reassessment date should be specified in the SOPS).

    LEGISLATIVE REGIME

16. The NDIS was established under the NDIS Act and operates in pursuit of the objectives set out in s 3 of the NDIS Act. Section 4 establishes general principles guiding actions to be taken under the NDIS Act.

17. Section 31 of the NDIS Act establishes a set of general principles that applies to the preparation, variation, reassessment, and replacement of an NDIS participant’s plan, as reproduced below:

    31       Principles relating to plans

    The preparation, variation, reassessment and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable:

    (a)       be individualised; and

    (b)       be directed by the participant; and

    (c)where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and

    (ca)where relevant, recognise and respect the relationship between participants and their families and carers; and

    (d)strengthen and build capacity of families and carers to support participants who are children; and

    (da) if the participant and the participant’s carer agree – strengthen and build the capacity of families and carers to support the participant in adult life; and

    (e)consider the availability to the participant of informal support and other support services generally available to any person in the community; and

    (f)support communities to respond to the individual goals and needs of participants; and

    (g)be underpinned by the right of the participant to exercise control over his or her own life; and

    (h)advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and

    (i)        maximise the choice and independence of the participant; and

    (j)facilitate tailored and flexible responses to the individual goals and needs of the participant; and

    (k)provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.

18. Section 31 of the NDIS Act sets out several principles that apply in the development of an NDIS plan for a participant. The purpose of the plan is to state how the funds provided for the participant’s supports are to be managed. The plan is the instrument that governs what funding the participant is entitled to receive under the scheme.

19. Each plan must have in it an approved SOPS; and a plan does not take effect until a SOPS forming part of the plan has been approved by the CEO under s 33(4) of the NDIS Act. Specifically, s 33 of the NDIS Act sets out certain matters that must be included in a participant’s plan, including the participant’s statement of goals and aspirations (s 33(1)) and a SOPS, which is prepared with the participant and approved by the CEO (or his or her delegate), in accordance with s 33(2).

20. Section 33(5) of the NDIS Act requires that the CEO (or his or her delegate), in deciding whether to approve the SOPS under s 33(2), must:

    (a)  have regard to the participant’s statement of goals and aspirations; and

    (b)  have regard to relevant assessments conducted in relation to the participant; and

    (c)   be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and

    (d)  apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and

    (e)  have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and

    (f)    have regard to the operation and effectiveness of any previous plans of the participant.

21. The NDIS rules referred to in s 33(5)(d) include the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports Rules).

22. Section 34(1) of the NDIS Act provides as follows:

    34       Reasonable and necessary supports

    (1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

    (a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;

    (b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;

    (c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

    (d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

    (e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

    (f)the support is most appropriately funded or provided through the [NDIS], 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 [NDIS] 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).

23. The Tribunal also notes the observations of Mortimer J in McGarrigle v National Disability Insurance Agency (2017) 157 ALD 520 at [43], as follows:[1]

    The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) to (7) constrain the rule-making power to preserve the federal characteristics of the NDIS. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the 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, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.

    [1] The Tribunal notes that this decision was appealed but that the appeal was dismissed: refer National Disability Insurance Agency v McGarrigle (2017) 157 ALD 458.

24. The Tribunal has considered the Operational Guidelines published by the NDIA on its website; specifically, those relating to the assessment of whether a requested support meets the “reasonable and necessary supports” criteria under s 34(1) of the NDIS Act.

    CONSIDERATION

25. This matter was listed for a two-day substantive hearing on 23 and 24 January 2023, during which a significant amount of new evidence was adduced on behalf of TBDY. The NDIA was appropriately responsive to this new evidence. On the second day of the hearing, at 2.05pm, the NDIA tendered a document setting out its updated position in respect of the outstanding supports in dispute between the parties. The NDIA further conceded the issue in respect of transport support, a short time before the hearing concluded on 24 January 2023.

26. The result of these developments is that, by the end of the hearing, virtually all of the supports requested by TBDY’s mother have now been accepted by the NDIA as being “reasonable and necessary supports”.

27. The NDIA also considers that additional supports, not requested by TBDY’s mother, are “reasonable and necessary supports” and should be included in TBDY’s SOPS.

28. The NDIA agreed with TBDY’s mother that the notional duration of TBDY’s plan should be three years. This was a matter initially contested by the NDIA.

29. Given the manner is which this proceeding has evolved, it is not necessary for the Tribunal to embark upon an extensive process of fact-finding and detailed consideration of the evidence and submissions lodged in this proceeding. Instead, the Tribunal will set out below the supports which are now (that is, by the end of the two-day hearing) in agreement between the parties to be “reasonable and necessary supports”. They include the following:

    (a)an increase in core supports funding for support worker assistance in respect of:

    (i)self-care activities on a 1:1 ratio, comprising 8 hours per day, at the standard weekday daytime rate; 7 hours per day of standard Saturday rate; 7 hours per day at the standard Sunday rate; and an additional 6 hours per day for 25 days per annum (that is, “home sick from school” days);

    (ii)2 nights per week of active overnight support on a 1:1 basis, comprising 1 night per week at the weekday rate and 1 night per week at the Sunday rate;

    (iii)accessing social, economic, recreational and community participation on a 1:1 basis, comprising 3 hours per day during school term at the weekday rate; 5.5 hours per day at the Saturday rate; 5.5 hours per day at the Sunday rate; and during school holidays for 12 weeks per annum, 5.5 hours per day at the weekday rate;

    (b)the cost of swimming lessons twice per week. The NDIA advised that it agreed to fund this on the basis that a quote is provided, showing the difference in cost between a group swimming lesson and swimming lessons on a 1:1 basis;

    (c)an increase in capacity building supports, comprising:

    (i)59 hours per annum of speech therapy;

    (ii)8 hours per annum in respect of the speech therapist being involved in the development and implementation of a behaviour support plan;

    (iii)8 hours per annum in respect of the occupational therapist being involved in the development and implementation of a behaviour support plan;

    (iv)a one-off allocation of 15 hours to be used at the end of the three-year term of the NDIS plan for the cost of the occupational therapist to prepare a plan review report; and

    (d)transport funding of an amount equivalent to $3,456 per annum to cover the cost of a second vehicle (already acquired by TBDY’s mother) to be used by either TBDY’s mother or her support worker to transport/drive TBDY. This funding is to be provided on the basis that the support worker is not to claim any amount for mileage and this amount is to be stated as a line item as a consumable.

30. The NDIA also undertook to make two further one-off payments to TBDY (to be processed by the NDIA “one-off payments team” and not to be included in TBDY’s SOPS in her NDIS plan), as funding for the following:

    (a)the cost of preparing the allied health reports tendered as evidence in this proceeding (for instance, the report prepared by the continence nurse), which have not otherwise been funded under the NDIA, and upon production of the invoices or receipts for those reports;

    (b)the cost of repairs to TBDY’s Tobii Indi device, subject to the production of a receipt; and

    (c)the difference between the cost of TBDY’s car seat and the cost of a car seat for a typical six-year-old child, subject to the production of a receipt.

31. The following further supports have not been requested by TBDY’s mother, but, in light of the evidence forthcoming at the hearing, the NDIA considers they are further “reasonable and necessary supports” for TBDY, which should be funded under the NDIS:

    (a)2 nights per week of active overnight support (in addition to the 2 nights per week of active overnight support requested by TBDY’s mother) on a 1:1 basis comprising 1 night per week of active overnight support at the weekday rate and 1 night per week of “sleepover” support;

    (b)respite, in the form of support worker assistance to be provided in TBDY’s home, of 10 hours per month at the standard Saturday rate and 18 hours per month at the standard Sunday rate;

    (c)60 hours of psychology services per annum, to be used flexibly for 20 hours of Specialist Behavioural Intervention Support and 40 hours for the development and implementation of a Behaviour Management plan; or 60 hours of psychologist support.

1. The Tribunal is satisfied that the supports described in paragraphs [29] and [31] above are “reasonable and necessary supports” under s 34(1) of the NDIS Act and should be included in TBDY’s SOPS and funded under her NDIS plan.

2. Specifically, in relation to funding referred to in paragraphs [29(c)(ii)], [29(c)(iii)] and [31(c)], there was evidence before the Tribunal indicating that TBDY has experienced emotional dysregulation and behaviours of concern (such as tendency to attempt to abscond), resulting from her conditions, which give rise to a risk of harm to herself; and as she grows older and larger in stature, potentially to others around her, including her sibling and carers. TBDY’s mother objected to TBDY being funded for a behaviour support plan being developed and implemented for TBDY. She does not consider that this would be beneficial to TBDY. The Tribunal refers to the expert evidence of Ms Suzanne Wakefield, independent occupational therapist, who considers that a behaviour support plan for TBDY is required. The Tribunal accepts Ms Wakefield’s expert opinion, as these matters are within Ms Wakefield’s particular area of expertise, and she is in a position to make a professional objective assessment about TBDY’s support and capacity building needs.

3. Specifically, Ms Wakefield states on page 10 and 11 of her expert report dated 12 December 2022 (emphasis added):

   During the assessment TBDY showed generally persistent challenging and disengaged behaviours across environments which impacted upon her need for constant supervision. She poses as a flight risk when not supervised or her environment is not secure. At school they are required to monitor the doorways for this reason. At home, all external doors are secured with high locks to keep her indoors, but she needs to be constantly supervised outside. Her challenging behaviours require a consistent approach as there are many staff involved with her care and it is important with children on the spectrum to have clear and consistent management strategies. Provision of a Behaviour Support Plan is required and was not seen to be in place at home or in the paperwork provided. Her reactions to changes in her environments will need to be monitored and the BSP provide strategies for self-regulation and calming.

4. The provision of funding for this support to TBDY will not detract from any other support that TBDY is to receive (being a concern held by TBDY’s mother). On this basis, the Tribunal considers that the funding referred to in paragraphs [29(c)(ii)], [29(c)(iii)] and [31(c)] should be provided so that the opportunity is there for TBDY to receive those important supports should her mother decided to facilitate TBDY’s access to them. The Tribunal considers it appropriate that these supports, taken as a whole, should be specified as a “stated support”, which means this funding is not able to be used for other supports or types of allied health services. The Tribunal invites TBDY’s mother to obtain further advice, and, for the sake of TBDY, to be open to reconsidering her previous stance in respect of facilitating TBDY’s access to this type of support at some point over the next three years. The Tribunal encourages TBDY’s mother to assist in the facilitation of behavioural support planning and intervention on a trial basis, to test whether it will help TBDY, her carers and other treating allied health practitioners to carry out their therapies upon TBDY effectively.

5. No proposal is made by the NDIA for there to be a change to the management of the funding in TBDY’s SOPS in her NDIS plan, including in relation to any new funding to be added. Her plan is to remain “self-managed”. The Tribunal considers that it is important that TBDY’s mother proactively take steps to engage a support coordinator, if she has not done so since the hearing in late-January 2023, to assist her to manage TBDY’s plan over the next three years.

6. The only issue that remained in dispute between the parties, by the end of the two-day hearing, was TBDY’s mother’s request for funding to pay for future repairs that might be required to TBDY’s assistive technology (AT). The NDIA explained that funding is currently approved to allow for a budget of $1,500 per annum to pay for TBDY’s AT. The NDIA staff member at the hearing advised the Tribunal that it is expected that the $1,500 for the first year of the plan would be used to purchase an item and the following two amounts of $1,500, for each of the two years to follow, could be used to fund repairs. TBDY’s mother was concerned that the device being used by TBDY is about $4,000 to purchase and that the screens are multilayered. The cost to repair one screen is about $500, according to TBDY’s mother. TBDY’s mother is concerned that if more than one screen were to break, this budget might be quickly depleted.

7. TBDY already has a device at her disposal. TBDY’s mother gave evidence that this device is hoped to last into her children’s adulthood. On this basis, the Tribunal considers that a budget of $1,500 per annum for each year of the proposed three-year notional NDIS plan is sufficient to provide for future repairs to this device. TBDY’s mother gave evidence that TBDY and her sibling have had those devices for two years and during that period only one screen had broken and had cost about $500 to replace. The Tribunal does not consider there to be any evidence before it to justify the approval of any additional funding for AT beyond the current provision of $1,500 per annum over the next three years. If more repairs than expected do occur over the future years, a review may need to be carried out as to whether this device is fit for purpose, or, alternatively, the NDIA would be open to consider doing a light-touch review in respect of approving additional funding to pay for those repairs.

   CONCLUSION

8. The Tribunal concludes that all the supports referred to in paragraph [29] and [31], meet the mandatory criteria under s 34(1) of the NDIS Act and are “reasonable and necessary supports” for TBDY that should be funded under the NDIS.

9. Accordingly, the Tribunal sets aside the Decision Under Review and remits this matter to the NDIA with a direction that within 14 days of the date of this Decision, the NDIA is to facilitate the approval of a new SOPS for TBDY (New SOPS) which includes:

   (a)all the supports referred to in paragraphs [29] and [31] above;

   (a)a provision specifying that the reassessment date will fall on the three-year anniversary of the date of approval of the New SOPS;

   (b)replication (on a pro-rata basis) of all other existing supports in TBDY’s Current SOPS (except for any one-off funding which has already been expended, or to be any amounts paid by way of the undertakings by the NDIA as referred to in paragraph [30], or any funding for supports to be replaced by the supports referred to in paragraphs [29] and [31] above); and

   (c)provisions specifying that the plan is to be managed as presently specified in TBDY’s current SOPS and that any new funding approved resulting from this Decision, be “self-managed”.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker

..................................[sgd]......................................

Associate

Dated: 24 February 2023

Date(s) of hearing:	23 & 24 January 2023
Advocate for the Applicant:	TBDY’s mother/child representative
Respondent:	In person
Counsel for the Respondent:	Ms Fiona Batten
Solicitors for the Respondent:	Clayton Utz