Tsao and CEO, National Disability Insurance Agency (NDIS)

[2025] ARTA 235

Tsao and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 235 (17 March 2025)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

Tribunal Numbers:  2022/7009, 2023/0354, 2024/4516

Re:Chi Ching Tsao

APPLICANT

AndCEO, National Disability Insurance Agency

RESPONDENT

Tribunal:Senior Member J Collins

Date:17 March 2025

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.

APPLICATIONS 2022/7009 AND 2024/4516

1. Pursuant to subsection 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:

(i)Within 14 days of this decision, Mr Tsao’s statement of participant supports specifies the following supports as reasonable and necessary:

·The works contained in quotation HCR-Q00023269 dated 3 November 2023[1] and in quotation HCR-Q0002329-2 dated 7 August 2024[2] being in the total sum of $46,267.30;

[1] A15

[2] A25

·The works contained in quotation HCR-Q00023272-4 dated 13 September 2024 in the sum of $31,902.00;[3]

[3] A32

·1,111 hours per year of support worker assistance for personal and domestic activities;

·Funding for the annual cleaning of the gutters in Mr Tsao’s house.

2.    The date by which the Agency must reassess Mr Tsao’s plan is to be 12 months after the date on which the supports in (1) above are included in Mr Tsao’s statement of participant supports;

3.    All other supports in Mr Tsao’s existing statement of participant supports are to be replicated pro-rata from the date of this decision until the reassessment date; and

4. Pursuant to subsection 44(1)(b)(i) of the National Disability Insurance Scheme Act 2013 (Cth), Mr Tsao’s plan is to remain ‘plan managed’.

APPLICATION 2023/0354

1.    Mr Tsao’s application for reinstatement of application 2023/0354 is refused.

...............[SGD].................

Senior Member J Collins

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME

Visual impairment – reasonable and necessary supports – consideration of section 34 National Disability Insurance Scheme Act 2013 (Cth)- home modifications – bathroom exhaust fan – lawn turf – guide dog – guide dog maintenance and insurance – pet expenses – support worker assistance – support coordination – physiotherapy, occupational therapy, speech therapy, psychiatry – church attendance – gym membership – All Eyes Cam Pro – fingernail and toenail cutting – podiatry – lawn mowing – garden maintenance – gutter cleaning – eye specialist – blind group gatherings - plan management – decision set aside and remitted to the Respondent

Application for reinstatement of application – decision refused

Legislation

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act) (Cth)

Administrative Review Tribunal Act 2024 (Cth) s102

National Disability Insurance Scheme Act 2013 (Cth) s3, s4, s10, s33, s34, s35, s99, s103

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)

National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)

National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth)

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

National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth)

Cases

G v Minister for Immigration and Border Protection [2018] FCA 1229

Minister for Home Affairs v G [2019] FCAFC 79

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

XYZ v Commonwealth [2006] HCA25; (2006) 227 CLR 532

Smith v National Disability Insurance Agency [2023] AATA 1616

Secondary Materials

NDIS – Operational Guidelines – Reasonable and necessary supports, as of 6 October 2023 

NDIS – Operational Guidelines – Assistance animals including dog guides, 20 June 2022

REASONS FOR THE DECISION

BACKGROUND

1.    Mr Tsao, a 61-year-old male, is a participant of the National Disability Insurance Scheme (‘the scheme’).

2.    Mr Tsao became a participant in the scheme on the basis of meeting the access requirements due to a visual impairment, which included blindness.[4]

[4] Respondent’s SFIC para 4.1

3.    Mr Tsao’s visual impairment arises as a consequence of the following diagnoses:

·primary open angle glaucoma;

·rod-cone retinal dystrophy; and

·bilateral pseudophakia.

4.    Mr Tsao has filed three applications with the Tribunal. These applications will be referred to subsequently. However, in summary, Mr Tsao is seeking:

·an increase in the funding of his supports;

·that his NDIS plan be ‘self-managed’; and

·that application number 2023/0354 be reinstated. 

5.    At the hearing Mr Tsao was not legally represented. The National Disability Insurance Agency (‘the Agency’) was represented by Mr Joshua Lessing of Counsel, instructed by Sparke Helmore Lawyers.

ISSUES

6.    The issues before the Tribunal are whether;

·the supports sought in application numbers 2022/7009 and 2024/4516 are ‘reasonable and necessary’ pursuant to section 34 of the National Disability Insurance Scheme Act 2013 (‘NDIS Act’) and should be included in his statement of participant supports (‘SOPS’) made pursuant to the scheme;

·application 2023/0354, which was dismissed on 15 May 2023, should be reinstated;

·Mr Tsao’s NDIS plan should be ‘self-managed’.

Application 2022/7009

7.    This application to the Tribunal was made on 29 August 2022.[5]

[5] T1

8.    In this application Mr Tsao seeks the following supports:

·Toilet inside house and inside bathroom with electric bidet;

·Bathroom inside his house;

·Electric bidet toilet inside his house with a manual switch;

·New bathroom vanity unit next to toilet;

·Open bathroom;

·Sliding bathroom doors (rather than swinging) and larger bathroom door space;

·Exhaust fan inside bathroom;

·Open shower with shower stool, movable and adjustable shower head;

·Soap dispenser with manual switch, including shampoo/conditioner dispenser;

·Wall to be tiled in contrasting colours;

·Non-slip floor tiles in bathroom in contrasting colours;

·Horizontal and vertical grab rail in shower;

·Vertical handrail inside house;

·Strong LED lights in all areas of the house including bedroom with sensor function switch;

·Floor light;

·Removal of big cabinet in kitchen and replacement with small cabinet to create more movable space;

·Change of kitchen vinyl flooring to mixed colour floor tiles;

·Levelling of uneven surface ground within house;

·Back door changed to the same level as the house/outdoor concrete slabs;

·Levelling of carport;

·Levelling of concrete slabs outside of the house; and

·Front garden lawn surface levelled with new lawn.

Application 2023/0354

9.    This application to the Tribunal was made on 6 January 2023.[6]

[6] T16

10.  In this application Mr Tsao sought the review of a decision by the Agency not to conduct a re-assessment of his plan which had been approved for the period 18 July 2002 to 18 July 2023.[7]

[7] T46

Application 2024/4516

11.  This application to the Tribunal was made on 27 June 2024.[8]

[8] T35

12.  In this application Mr Tsao seeks the following supports:

·A replacement guide dog;

·Guide dog funding of $6,500;

·42 hours of support coordination;

·Guide dog insurance funding of $3,000;

·Support worker hours at 40 hours per week;

·Increased physiotherapy;

·36 hours per year of occupational therapy;

·Monthly speech therapy for dyslexia;

·Funding for psychiatry;

·Funding to go to church once a week;

·A yearly gym membership;

·Monthly podiatry to cut toenails and inspect feet;

·Fingernails to be cut fortnightly;

·All Eyes Cam Pro of $8,000;

·Adaptive report of $3,000;

·Fortnightly mowing and gardening maintenance;

·Yearly gutter cleaning;

·Funding to visit eye specialist;

·Monthly blind group social gathering.

Concessions

13.  At the commencement of the hearing the Agency advised the Tribunal that certain concessions had been made in relation to application 2022/7009.

14. In this regard, the Agency and Mr Tsao have agreed that the following supports are ‘reasonable and necessary’ pursuant to subsection 34(1) of the NDIS Act:

·The works contained in quotation HCR-Q00023269 dated 3 November 2023[9] and in quotation HCR-Q0002329-2 dated 7 August 2024[10] being in the total sum of $46,267.30;

·The works contained in quotation HCR-Q00023272-4 dated 13 September 2024 in the sum of $31,902.00.[11]

[9] A15

[10] A25

[11] A32

Contentions

15.  In respect of application 2022/7009, the following supports remain in dispute:

(i)Exhaust fan inside bathroom;

(ii)Front garden lawn surface levelled with replacement of new lawn.

16.  In respect of application 2024/4516, the following supports remain in dispute:

(iii)A replacement guide dog;

(iv)Guide dog funding of $6,500;

(v)Guide dog insurance funding;

(vi)42 hours of support coordination;

(vii)Support worker hours at 40 hours per week;

(viii)Increased funding for physiotherapy;

(ix)36 hours per year of occupational therapy;

(x)Monthly speech therapy;

(xi)Psychiatry;

(xii)Funding to go to church once a week;

(xiii)A yearly gym membership;

(xiv)Monthly podiatry to cut toenails and inspect feet;

(xv)Fingernails to be cut fortnightly;

(xvi)All Eyes Cam Pro of $8,000;

(xvii)Adaptive report of $3,000;

(xviii)Fortnightly mowing and garden maintenance;

(xix)Yearly gutter cleaning;

(xx)Funding to visit eye specialist;

(xxi)Monthly blind group social gathering.

17. The Agency also contends that Mr Tsao’s NDIS plan should not be ‘self-managed’, pursuant to subsection 43(1)(a) and subsection 43(2) of the NDIS Act. The Agency submits that self-management of Mr Tsao’s plan would present an unreasonable risk to him, pursuant to subsection 44(1)(b)(i) of the NDIS Act.

18.  In respect of application 2023/0354, the Agency contends that this application should not be reinstated pursuant to section 102 of the ART Act. Further, it contends that if reinstatement is ordered by the Tribunal, then the following supports are not reasonable and necessary and remain in dispute:

·Dog food, dog grooming, vet, technology - $2,737.94;

·Mowing and garden maintenance - $280;

·     Support worker fees for Yuk-Ling Leung - $28,736.49; and

·     Support worker fees for Tao Wang - $10,659.

THE LEGAL FRAMEWORK

National Disability Insurance Scheme Act 2013 (Cth)

19. Section 34 of the NDIS Act identifies what constitutes a ‘reasonable and necessary’ support under the scheme.

20. 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).

21.  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’) made a range of ‘amendments’ to the NDIS Act.

22. These amendments in respect of the requirements pursuant to section 34 of the NDIS Act will apply to this review.[12]

[12] Section 129 of the National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No 1) Act 2024

23. Section 34 of the NDIS Act, as amended, provides as follows (emphasis of amendments added by the Tribunal):

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 (see section 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;

(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 for the participant.

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; 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).

24. Subsection 34(1) of the NDIS Act is cumulative and therefore all the criteria must be met.

25. Subsection 34(1)(aa) of the NDIS Act, which is 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 Tsao which arise from the impairment/s for which he met the disability requirements.

26. Subsection 34(1)(f) of the NDIS Act is also an amendment; however, it is a replacement of an ‘old provision’ with a ‘new provision’.

27. This new provision of subsection 34(1)(f) of the NDIS Act requires that the support is an ‘NDIS support’.

28. Also relevant to this review is the inclusion of section 10 to the NDIS Act, made pursuant to the Amending Act. Section 10 of the NDIS Act provides a definition of what constitutes an ‘NDIS Support’ for the purposes of subsection 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 Interpretation Act 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.

29. Subsection 34(2) provides that the NDIS rules may prescribe methods or criteria to be applied, or matters to which the CEO must have regard, in deciding whether the criteria under subsection 34(1) are met in respect of a requested support.

30. Section 35 of the NDIS Act 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 (‘Supports Rules’); and

·National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (‘Transitional Rules’).

31. 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

3.1In 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

3.2In 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.

3.3In 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

3.4In 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:

…

(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 informal 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.

32. Schedule 1 to the Transitional Rules identifies supports that are declared NDIS supports for the purposes of subsection 10(1) of the NDIS Act. Likewise, Schedule 2 to the Transitional Rules identifies supports that are declared as not NDIS supports for the purposes of subsection 10(1) of the NDIS Act.

33.  In McGarrigle v National Disability Insurance Agency[13] 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.

[13] McGarrigle v National Disability Insurance Agency [2017] FCA 308 (‘McGarrigle’)

34.  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 also stated as follows:[14]

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 to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.

[14] Ibid at [91]

35.  The Full Court in National Disability Insurance Agency v WRMF[15] also considered the meaning of reasonable and necessary supports, and stated as follows [149]-[151]:

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 CLR 532 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.

[15] National Disability Insurance Agency v WRMF [2020] FCAFC 79 (‘WRMF’)

OPERATIONAL GUIDELINES

36.  The Agency 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.[16] 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)[17] the Federal Court held that a Tribunal should take into account relevant government policy which 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 Protection[18] where Mortimer J held:[19]

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.

[16] Minister for Home AffairsvG [2019] FCAFC 79 at [18]

[17] [1979] AATA 179 (1979); 2 ALD 634

[18] [2018] FCA 1229

[19] Ibid at [171]

37.  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 Tsao. The Guidelines relevant to this review are the:

·NDIS – Operational Guidelines – Reasonable and necessary supports;[20] and

·NDIS – Operational Guidelines – Assistance animals including dog guides, 20 June 2022.

[20] Webpage: ourguidelines.ndis.gov.au

EVIDENCE

38.  I have considered all the written evidence filed with the Tribunal provided in the joint bundle, the oral evidence provided at the hearing on 5 and 6 February 2025, and the parties’ closing submissions. I will refer in my decision to evidence that in my view is directly relevant to the determination of these three applications.

Evidence about Mr Tsao

39.  The evidence overwhelmingly supports, and it is not disputed, that Mr Tsao has a vision impairment.

40.  Mr Tsao has been diagnosed with bilateral optic atrophy, cone-rod dystrophy and retinal dystrophy. Mr Tsao is, in effect, legally blind. He has no vision in his left eye and less than 5% vision in his right eye.[21]

[21] Respondent’s SFIC para 4.2

41.  Mr Tsao reports the following difficulties:

·he can detect light in his left eye and has tunnel vision in his right eye;[22]

·he has great difficulty with spatial perception including judging distances;

·he also has difficulty distinguishing between objects and colour contrasts;[23]

·he is at high risk of tripping and falling, and tends to bump into things, resulting in injuries; and

·he has access to a cane, however, does not use this cane around his house.[24]

[22] Jojo Tang, Complex Home Modification Assessment Template, 15 March 2024 (‘Jojo Tang report’), pages 3, 23 

[23] A16

[24] Respondent’s SFIC para 4.3, Jojo Tang report, 5, 18-19, 23 and Angus Jackson report, 13 June 2024, page 22

42.  Mr Tsao lives in his own home in a suburb of Melbourne, Victoria.[25] He has resided there for approximately 20 years. For obvious reasons he is unable to drive. He utilises his support workers, taxis and public transport for travel. [26]

[25] Respondent’s SFIC para 4.2

[26] B1, applicant’s oral evidence

43.  Mr Tsao’s adult son resided with him and provided informal support until earlier this year. Mr Tsao’s adult son has also provided him with formal support at various times.[27]

[27] Applicant’s oral evidence

44.  The goals included in Mr Tsao’s plan[28] are that he would like to:

·Increase his independence in his home and the community;

·Improve his computer skills and be able to return to study;

·Increase his independence in the community with his guide dog;

·Improve his learning capabilities; and

·Self-manage his NDIS plan.[29]

[28] Subsection 33(1)(a) of the NDIS Act

[29] T48

REINSTATEMENT OF APPLICATION 2023/0354

45.  Mr Tsao applies to the Tribunal for reinstatement of an application made to the Tribunal on 6 January 2023. Mr Tsao’s application on 6 January 2023 sought the review of a decision of the Agency not to reassess Mr Tsao’s plan pursuant to section 48 of the NDIS Act.

46.  The history of this application can be summarised as follows:

·The Agency approved a plan for Mr Tsao for the period 18 July 2022 to 18 July 2023 (‘the Plan’);[30]

[30] T46

·On 22 July 2022 Mr Tsao applied for an internal review of the decision to approve the Plan;

·On 8 August 2022 the Agency affirmed its decision to approve the Plan;

·Thereafter Mr Tsao took the following steps:

o   Firstly, on 29 August 2022 he applied to the Tribunal to review the decision of the Agency made on 8 August 2022;[31] and

[31] Application 2022/7009

o   Secondly, he applied separately to the Agency for a ‘re-assessment ’ of the Plan. Mr Tsao’s request to the Agency for ‘reassessment’ was made on the basis that his funding had been exhausted;

·On 1 December 2022 the Agency declined to conduct a ‘re-assessment’ of the Plan pursuant to section 48 of the NDIS Act;

·On 28 December 2022 Mr Tsao applied to the Agency for an internal review of its decision not to conduct a re-assessment of the Plan;

·The Agency conducted an internal review[32] and affirmed its decision not to conduct a re-assessment of Mr Tsao’s plan. The Agency advised Mr Tsao of its decision on 6 January 2023;[33]

·On 6 January 2023 Mr Tsao applied to the Tribunal for a review of the Agency’s decision not to conduct a re-assessment of his plan;[34]

·This application became application number 2023/0354 and is the subject of this

Review;

·On 1 May 2023 the parties attended a case conference; 

·On 12 May 2023 Mr Tsao wrote to the Tribunal as follows, ‘I wish to withdraw the case number 2023/0354 from the AAT’;

·On 15 May 2023 the Tribunal dismissed application number 2023/0354;

·On 25 September 2023 Mr Tsao wrote to the Tribunal as follows: ‘I wish to re-open my case no 2023/0354. I have been cheated by the NDIS Agency … In the past I did not wish to mention because the NDIS agency agreed to pay the outstanding amounts owed to the support workers plus a small amount of fair and reasonable expenses’;

·On 18 October 2023, the Tribunal wrote to Mr Tsao as follows:

[32] Section 100 of the NDIS Act

[33] T16A

[34] T16

Subject 2023/0354

…

Referring to our previous conversation had on 5 October 2023, you indicated to me on the phone that you would not be pursuing a Reinstatement of this application, instead withdrawing this request and potentially lodging a new application altogether. Could you please confirm this with the Tribunal by close of business Friday 27 October 2023? Thank you.

·On 5 December 2023 Mr Tsao again wrote to the Tribunal as follows:

The purpose of this letter is to persuade the Tribunal to reopen the case number 2023/0354 … The respondent team trickily said in Court that the respondent is not challenging the case number 2023/0354 and agreed to pay support workers’ wages and basic expenses. The respondent also agreed to implement a new NDIS contract to me. In the end, it was all misleading. The respondent agency did not pay support workers’ wages and my new plan was rolled over from the last plan with some extra money added to it.

·On 11 December 2023 Mr Tsao lodged with the Tribunal an application for reinstatement of application number 2023/0354;

·On 30 January 2024 the Tribunal wrote to the Agency’s solicitors to advise that Mr Tsao had lodged an application for reinstatement of application number 2023/0354. The Tribunal stated: ‘We ask that the Respondent provide its view/ response on this reinstatement  application’;

·On 1 February 2024 the Agency’s solicitors wrote to the Tribunal to advise that instructions were being sought.

47.  I am satisfied that the Tribunal’s task is to review a decision of the Agency not to conduct a reassessment of Mr Tsao’s plan for the period 18 July 2022 to 18 July 2023. The Tribunal’s task is not to consider reimbursement of any expenses.

48.  Notwithstanding the confines of the Tribunal’s review power in this application as referred to in [47], Mr Tsao continues to seek a decision from the Tribunal that the Agency pay reimbursement for the following expenses on ‘compassionate grounds’:

·Dog food, dog grooming, vet, technology: 16 August 2020 - 28 April 2023 (total amount sought $2,737.94);

·Mowing and garden maintenance: 24 November 2022 - 16 March 2023 (total amount sought: $280);

·Support worker expenses – Yuk-Ling Leung – 3 November 2022 - 25 June 2023 (total amount sought: $28,736.49);

·Support worker expenses – Tao Wang – 4 November 2022 - 30 June 2023 (total amount sought: $10,659.00) (‘the expenses’).

49.  Mr Tsao’s request is misconceived. The Tribunal’s task in this instance is only to review the Agency’s decision not to conduct a reassessment. It is not to review whether the above supports were reasonable and necessary pursuant to section 34 of the NDIS Act.

50. Pursuant to subsection 48(3)(c) or subsection 48(4) of the NDIS Act, the Agency may elect not to conduct a re-assessment of a plan despite a participant’s request to do so. The Agency indeed exercised this option by deciding not to conduct a re-assessment of Mr Tsao’s plan, for the period 18 July 2022 to 18 July 2023. The Agency thereafter confirmed this decision following an internal review pursuant to section 100 of the NDIS Act.

51. Item 6C of section 99 of the NDIS Act provides that a decision of the Agency not to conduct a reassessment of a participant’s plan under subsection 48(3)(c) or subsection 48(4) is a “reviewable decision”.

52. Pursuant to section 103 of the NDIS Act a participant may apply to the Tribunal for a review of a ‘reviewable decision’. Mr Tsao exercised this right to apply to the Tribunal when he lodged application 2023/0354 on 6 January 2023.[35]

[35] Section 103 of the NDIS Act

53.   In exercising this right he sought a review by the Tribunal of the decision of the Agency not to conduct a reassessment of his plan for the period 18 July 2022 to 18 July 2023. He did not seek a review of whether the expenses referred to in [48] were reasonable and necessary.

54.  I am satisfied that the purpose of this review is only to review the Agency’s decision not to conduct a reassessment of his plan approved for the period 18 July 2022 to 18 July 2023, for the following reasons:

·These expenses were not the subject of application 2023/0354;

·Application 2023/0354 related solely to the Agency’s refusal to re-assess Mr Tsao’s plan;

·Had Mr Tsao not withdrawn application 2023/0354, the Tribunal’s task would have been to make a determination as to whether the Agency should be compelled to re-assess Mr Tsao’s plan;

·On the basis of a remittal by the Tribunal to the Agency, the Agency would have then been compelled to re-assess Mr Tsao’s plan;

·The expenses referred to by Mr Tsao at [48] are irrelevant to application 2023/0354.

55.  Mr Tsao’s request that the Tribunal order reimbursement of these expenses on “compassionate grounds” is also misconceived.  The Tribunal has no power to exercise any discretion, on compassionate grounds or otherwise. As stated, the Tribunal’s task in respect of application 2023/0354 is confined to a decision on whether the Agency should be compelled to conduct a re-assessment of the Plan.

Should application number 2023/0354 be reinstated?

56.  The Tribunal’s power to reinstate a dismissed application is governed by section 102 of the ART Act, which provides as follows:

Reinstatement of application

When this section applies

(1)  This section applies if the Tribunal dismisses an application.

Note:  An application may be dismissed in specified circumstances (see sections   20, 84 and 96 to 101). In addition, an application is taken to have been dismissed if the applicant withdraws it (see section   95).

Tribunal may reinstate on own initiative

(2)  If the Tribunal considers that the application was dismissed in error, the Tribunal may on its own initiative reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.

(3)  Despite subsection   (2), the Tribunal must not reinstate an application under subsection   (2) if the application was dismissed under section   96 (Tribunal may dismiss application if parties consent).

(4)  Despite subsection   (2), if more than 28 days have passed since an application was dismissed, the Tribunal must not reinstate the application under subsection   (2) unless the Tribunal is satisfied that special circumstances justify reinstating the application.

57.  Application number 2023/0354 was dismissed by the Tribunal on 15 May 2023 at the request of Mr Tsao. Over four months later, Mr Tsao sought reinstatement of the application.

58.  On the basis that reinstatement of application number 2023/0354 was not sought within 28 days of being dismissed, Mr Tsao must satisfy the Tribunal that there exist special circumstances which justify reinstating the application.[36]

[36] Subsection 102(4) of the NDIS Act

59.  Mr Tsao submits the following:

·That he was ‘tricked’ into withdrawing his application for a review of the Agency’s decision not to conduct a re-assessment of the plan approved for the period 18 July 2022 to 18 July 2023;

·That this deception was in the context of being promised by the Agency (or its representatives) reimbursement for the expenses.

60.  The Agency contends that it is not appropriate for this application to be reinstated in circumstances where a new NDIS plan has been implemented since the time that application 2023/0354 was made.

61.  I accept the Agency’s submission and am satisfied that no special circumstances exist which would warrant the reinstatement of Mr Tsao’s application, the purpose of which is to compel the Agency to conduct a re-assessment of his plan for the period 18 July 2022 to 18 July 2023. My considerations are as follows:

·By lodging application number 2023/0354 on 6 January 2023, Mr Tsao sought a review of the Agency’s decision not to conduct a re-assessment of the Plan;

·Notwithstanding, on 28 March 2023 (approximately two and a half months later) the Agency did in fact conduct a re-assessment of the Plan. This re-assessment resulted in the approval of a new plan for the period 28 March 2023 to 27 June 2023.[37]

·Simply put, Mr Tsao’s application 2023/0354 sought a decision from the Tribunal that the Agency be ‘compelled’ to re-assess the Plan. Shortly after his application was made to the Tribunal, the Agency did in fact re-assess the Plan. This meant that the outcome Mr Tsao sought by application 2023/0354 was in fact ‘realised’ on 28 March 2023. As such, there was further no utility in Mr Tsao’s application 2023/0354.

·Mr Tsao’s perception that application number 2023/0354 included the Tribunal also undertaking the task of considering whether the expenses were reasonable and necessary for the purposes of subsection 34(1) of the NDIS is misguided.

[37] T47

Conclusion

62.  Mr Tsao’s application for reinstatement of application 2023/0354 is refused.

APPLICATIONS 2022/7009 AND 2024/4516

Are the supports sought necessary to address the needs of Mr Tsao arising from the impairment in relation to which he met the disability requirements or the early intervention requirements - subsection 34(1)(aa) NDIS Act

63. Mr Tsao was granted access to the scheme on the basis of meeting the disability requirements pursuant to subsection 24(1) of the NDIS Act.[38]

[38] Respondent’s submissions dated 13 November 2024, ST 45

64.  I am satisfied that Mr Tsao meets the disability requirements on the basis of a sensory impairment due to blindness as a result of the following conditions.

·primary open angle glaucoma;

·rod-cone retinal dystrophy; and

·bilateral pseudophakia.

65.  Dr Fiona Wood, psychiatrist, provided reports to the Tribunal in which she provides diagnoses of Mr Tsao of depression, psychosis and possible bipolar disorder, complicated by probable neurodevelopmental difficulties.[39] The Agency contends the Tribunal cannot be satisfied that Mr Tsao meets the disability requirements on the basis of a psychosocial impairment.  The Agency submits that irrespective of Dr Wood’s diagnoses, there exists no evidence before the Tribunal in respect of the extent of treatment of these conditions and the relevant prognoses.

[39] T19, T39, A13

66. I accept the Agency’s submission. Despite Dr Wood’s diagnoses, Mr Tsao must still satisfy all of the criteria under section 24 of the NDIS Act in order to meet the disability requirements on the basis of a psychosocial impairment. I am satisfied there is insufficient evidence before the Tribunal in this regard.

67. On this basis, for the purposes of subsection 34(1)(aa) of the NDIS Act, the supports included in Mr Tsao’s SOPS must be necessary to address his needs that arise as a result of his visual impairment and not any psychosocial impairment.

APPLICATION 2022/7009

Exhaust fan inside bathroom

68.  Mr Tsao seeks funding for the installation of an exhaust fan inside his bathroom which will remove any odours. He states that this is a ‘hygiene issue’ because his bathroom has no window which can provide ventilation.[40]

[40] Applicant’s oral evidence

69.  No quotation was provided to the Tribunal in respect of the cost of the purchase and installation of a bathroom exhaust fan. In his oral evidence Mr Tsao estimated a cost of between $300 and $500.

70.  The Agency submits that this support does not relate to his vision impairment but relates to a ‘preference’ of Mr Tsao.

71.  I accept the Agency’s submission. Unpleasant odours, lingering or otherwise, in Mr Tsao’s bathroom are commonplace in many bathrooms. The disturbance to Mr Tsao’s sense of smell is unrelated to his disability arising as a consequence of his vision impairment.

72.  I am satisfied that the installation of an exhaust fan in Mr Tsao’s bathroom would be for a purpose which has no link or connection to Mr Tsao’s needs arising as a result of his vision impairment.

73. Subsection 34(1)(aa) of the NDIS Act is not satisfied.

Conclusion

74. The funding for an exhaust fan in Mr Tsao’s bathroom is not a ‘reasonable and necessary’ support for the purposes of subsection 34(1) of the NDIS Act and cannot be included in Mr Tsao’s SOPS.

Levelling of front garden lawn surface and replacement with new lawn

Mr Tsao seeks funding so that he may have his front lawn levelled and replaced with new lawn.75. 

Mr Tsao filed an undated quotation from Green Works landscaping in the sum of $7,800.00 on day 2 of the hearing. The quotation referred to the removal and excavation of old grass, fertilisation of new soil and laying of new turf grass.76. 

The Agency refers to the reports of Ms Tang77.  [41] or Mr Jackson,[42] both occupational therapists, who provided an opinion in respect of Mr Tsao’s funding under the scheme. The Agency submits that as funding for this purpose was not considered by either expert, the Agency cannot be satisfied that it is reasonable and necessary support for the purposes of section 34 of the NDIS Act.

[41]A22, A29

[42] B1

The Agency’s submission is reasonably made out. Mr Tsao seeks this funding in the absence of any evidence (expert opinion or otherwise) in respect of whether the levelling of his front lawn and replacement with new lawn:78. 

will address his needs which arise from his vision impairment;·     [43] and

[43] Subsection 34(1)(aa) of the NDIS Act

is in fact value for money having regard to whether there are comparable supports that will achieve the same outcome and whether it will result in an improvement in his life stage outcomes or be of long term benefit to him.·     [44]

[44] Rules 3.1(a) and (b) of the Supports Rules

79. On this basis I cannot be positively satisfied that the levelling of Mr Tsao’s front lawn and replacement meets the mandatory criteria of either subsection 34(1)(aa) or 34(1)(c) of the NDIS Act.

Conclusion

80. The funding for levelling of Mr Tsao’s front lawn and replacement with new lawn is not a ‘reasonable and necessary’ support for the purposes of subsection 34(1) of the NDIS Act and cannot be included in Mr Tsao’s SOPS.

APPLICATION 2024/4516

A replacement guide dog

81.  Mr Tsao seeks a replacement guide dog and provides quotations from Guide Dogs Victoria (GDV).[45]

[45] T41, T45

82.  Mr Tsao’s oral evidence can be summarised as follows:

·He has had two guide dogs over the past 15 years. These guide dogs have been provided to him, free of charge, by Guide Dogs Victoria (GDV);

·His current guide dog was ’retired’ due to a hip condition approximately 10 days prior to the commencement of the Tribunal hearing (‘the retired dog’);

·The retired dog is still living with him;

·Mr Tsao has made preliminary enquiries with GDV in respect of a replacement guide dog. An officer of GDV has advised Mr Tsao in respect of his request for a replacement guide dog that she ‘will talk to her boss’;

·To date, he has received no response from GDV. His understanding is that GDV will not provide any indication regarding the provision or funding of another guide dog until Mr Tsao’s Tribunal proceedings are finalised;

·In referring to GDV, Mr Tsao stated: ‘ … now the NDIS exists, they were looking forward to the government funding rather than they have to pay themselves, that kind of thing’;

·Mr Tsao explained his guide dog goes ‘everywhere’ with him. This includes on public transport, to medical appointments, the supermarket and community activities;

·Mr Tsao generally leaves his home three to four times a week;

·Mr Tsao is planning to commence a TAFE course two days per week to learn Chinese and he will need his guide dog for this purpose;

·Mr Tsao explained that he has tunnel vision with no peripheral vision. Without his guide dog he feels ‘discomfort’ and does not feel ‘safe’, particularly in the community;

·When accessing the community with his guide dog, others around him will ‘notice’ his presence and will make allowances to go ‘around him’.

·In contrast, when accessing the community using only a white cane he is not noticed by others. As a consequence, people will bump into him and not give him sufficient room to manoeuvre or mobilise.

83.  The Agency accepts that the Dog Guide Assessment in February 2024 by Ms Ingrid Beasley of GDV reported that Mr Tsao’s current guide dog was nearing the end of its working life. Further, it noted that Mr Tsao has difficulty using a ‘human guide’ as he finds it difficult to follow someone else’s elbow and has stumbled in such situations in the past.[46]

[46]  T42- Ingrid Beasley, Dog Guide Assessment, 28 February 2024 pages 4, 5, 7

84.  The Agency submits that a replacement guide dog does not represent value for money.[47] This is on the basis that funding for a support worker and a dog guide are for the same or similar purposes and therefore do not represent value for money as there is a duplication of support.

[47] Subsection 34(1)(c) of the NDIS Act

85. The Agency also submits that a replacement guide dog is not effective and beneficial, pursuant to subsection 34(1)(d) of the NDIS Act. In this regard, the Agency refers to the report of Mr Frank Chen, occupational therapist, which provides the following commentary:

·Mr Tsao ‘occasionally walks with a guide dog to assist him with outdoor mobility’;

·Mr Tsao expressed that ‘a guide dog is not the most suitable option during heavy rainfall’ and in such cases Mr Tsao ‘prefers walking with a support worker’;

·When walking with a support worker and using a white cane, Mr Tsao ‘feels more secure as he can hold onto the support worker’s elbow, engage in conversation during the walk, and receive verbal descriptions of his surroundings for added safety’;

·Mr Tsao considered that ‘a support worker is a superior choice compared to a guide dog’.[48]

[48] B1 Frank Chen, Occupational Therapy Report, 24 May 2023 (T4 of 2024/4516), page 4

86.  In his oral evidence Mr Tsao refuted much of the commentary by Mr Chen. In respect of the use of a support worker in times of heavy rainfall he explained this was a preferable option as his guide dog was prone to the ‘heavy shaking’ of his fur coat when wet. As a result, it is extremely unpleasant for those around him to be sprayed with water from his wet guide dog.

87. Item 2 of Schedule 1 to the Transitional Rules provides that the following supports are NDIS supports for the purposes of section 10 of the NDIS Act:

Support provided by an eligible assistance animal.

This includes the following:

(a) assessment, matching and provision of an eligible assistance animal;

(b) dietary needs;

(c) grooming;

(d) veterinary services including flea and worm treatments, medication, and

vaccinations;

(e) yearly reviews to maintain accreditation.

88.  Having regard to item 2 of Schedule 1 to the Transitional Rules I am satisfied that eligible assistance animals[49] may, unless otherwise provided, be an NDIS support for the purpose of section 10 of the NDIS Act. Furthermore, that a guide dog may be an ‘eligible assistance animal’ for the purpose of section 10 of the NDIS Act.

[49] Section 4 of the Transitional Rules

89. Whether a guide dog is an eligible assistance animal for the purpose of section 10 of the NDIS Act, however, cannot and should not be presumed. This is because of the cumulative operation of section 34 of the NDIS Act and satisfaction of the relevant rules.[50]

[50] Section 34 of the NDIS Act, Supports Rules, section 4 of the Transitional Rules, NDIS Operational Guidelines - Assistance animals including dog guides, 20 June 2022

90. In this review I consider subsection 34(1)(e) of the NDIS Act to be most relevant. Subsection 34(1)(e) requires that ‘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’.

91. The evidence as relevant to subsection 34(1)(e) of the NDIS Act refers to the following matters:

·Mr Tsao has been provided with two guide dogs over the past 15 years by GDV;

·No evidence was provided which suggested that the provision of these two guide dogs was anything other than ‘free of charge’;

·No evidence was provided that GDV have refused to provide a third guide dog to Mr Tsao;

·   managing and monitoring a participant’s budget;

·   managing a participant’s NDIS claims and disbursing funds to providers for services delivered;

·   providing regular statements to a participant to show the financial status of their plan including prompt notification of over or under utilisation;

·   offering increased choice and control to a participant over plan implementation and utilisation through additional plan financial assistance. (Tribunal emphasis.)

·   Participants can also receive advice from plan management providers about how to best utilise their NDIS plan funding which can assist in building a participant’s financial capacity and knowledge.

246.I am satisfied that the continuation of Mr Tsao’s plan under the plan management model is appropriate in all the circumstances. I am also satisfied that self-management of Mr Tsao’s plan represents an unacceptable risk to him. My considerations are as follows:

·     Mr Tsao has a history of misusing funds;[98]

[98] Rule 3.8(d) of the Plan Management Rules

·     Mr Tsao is vulnerable and has a history of relying on representations made by others such as Vision Australia in relation to the utilisation of his funding. Vision Australia has no authority to provide advice or make recommendations or representations to Mr Tsao;

·     Mr Tsao will retain his choice and control supports with plan management. He will have the ability to liaise with his plan manager in respect of the choice of his supports;

·     Plan management will provide Mr Tsao with an individual one-on-one relationship with a plan manager;

·     A plan manager will be able to assist Mr Tsao by providing advice about how to best utilise the funding in his plan;

·     Plan management will ensure the monitoring of Mr Tsao’s budget to ensure that funds are not exhausted and he is not left unsupported for periods of time;

·     There is no evidence to suggest that Mr Tsao has any informal networks that could assist him with the management of his plan;[99] and

[99] Rule 3.8(i) of the Plan Management Rules

·     Mr Tsao will be assisted to make informed decisions about his supports in the context of managing a funding budget.

247.In the absence of plan management I am therefore satisfied that Mr Tsao will be unable to manage the budgeting of his funding. This poses an unacceptable risk to Mr Tsao on the basis that the exhaustion of funding prior to the expiration of his plan will leave him without the reasonable and necessary supports that he requires due to his vision impairment.

DECISION

Applications 2022/7009 and 2024/4516

1. Pursuant to subsection 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:

(i)Within 14 days of this decision, Mr Tsao’s statement of participant supports specifies the following supports as reasonable and necessary:

·The works contained in quotation HCR-Q00023269 dated 3 November 2023[100] and in quotation HCR-Q0002329-2 dated 7 August 2024[101] being in the total sum of $46,267.30;

[100] A15

[101] A25

·The works contained in quotation HCR-Q00023272-4 dated 13 September 2024 in the sum of $31,902.00;[102]

[102] A32

·1,111 hours per year of support worker assistance for personal and domestic activities;

·Funding for the annual cleaning of the gutters in Mr Tsao’s house.

2.    The date by which the Agency must reassess Mr Tsao’s plan is to be 12 months after the date on which the supports in (1) above are included in Mr Tsao’s statement of participant supports;

3.    All other supports in Mr Tsao’s existing statement of participant supports are to be replicated pro-rata from the date of this decision until the reassessment date; and

4. Pursuant to subsection 44(1)(b)(i) of the National Disability Insurance Scheme Act 2013 (Cth), Mr Tsao’s plan is to remain ‘plan managed’.

Application 2023/0354

1.    Mr Tsao’s application for reinstatement of application 2023/0354 is refused.

I certify that the preceding 247 (two hundred and forty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins.

..........[SGD]............

Associate

17 March 2025

Dates of hearing:

5 and 6 February 2025

Applicant:

Mr Chi Ching Tsao

Solicitors for the Respondent:

Counsel for the Respondent:

Sparke Helmore Lawyers

Mr Lessing of Counsel