Tweed and National Disability Insurance Agency
[2023] AATA 2016
•12 July 2023
Tweed and National Disability Insurance Agency [2023] AATA 2016 (12 July 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/3131
Re:Jack Tweed
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member I Thompson
Date:12 July 2023
Place:Adelaide
For the reasons set out below, the Tribunal decides that pursuant to ss 42C(1)(c) and 42C(1)(2) of the Administrative Appeals Tribunal Act 1975 (Cth), it is satisfied that it may make a decision in accordance with the terms of the parties’ written agreement that the decision under review, dated 8 March 2023, made under s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth), is set aside and substituted with a decision to approve a new statement of participant supports.
..............[sgnd]..........................................................
Member I Thompson
Catchwords
PRACTICE AND PROCEDURE – National Disability Insurance Scheme - Applicant and Respondent reached agreement as to the terms of a decision of the Tribunal – power of Tribunal under section 42C of the Administrative Appeals Tribunal Act 1975 (Cth) – whether the Tribunal should be satisfied under s 42C(1)(c) that the requested decision is within the powers of the Tribunal and whether it appears appropriate to make the decision – decision made in accordance with the agreement reached between the parties
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Disability Inclusion (Restrictive Practices – NDIS) Amendment Act 2021 (SA)
Disability Inclusion (Restrictive Practices – NDIS) Regulations 2021 (SA)
Guardianship and Administration Act 1993 (SA)
Mental Health Act 2009 (SA)National Disability Insurance Scheme Act 2013 (Cth)
Cases
Re Goodricke and Comcare [2017] AATA 1249
Secondary Materials
National Disability Insurance Scheme (Supports for Participants) Rules 2013
National Disability Insurance Scheme (Restrictive Practices and Behaviour Supports) Rules 2018REASONS FOR DECISION
Member I Thompson
12 July 2023
The parties reached agreement as to the terms of a decision of the Tribunal in this proceeding, in accordance with s 42C(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). They requested the Tribunal to make a decision in accordance with those written terms pursuant to s 42C(2) of the AAT Act.
S 42(1)(c) of the AAT Act specifies that the Tribunal must be satisfied that a decision in those terms or consistent with those terms would be within the powers of the Tribunal and that it appears appropriate to make the decision.
In order for the Tribunal to be satisfied that the requested decision is within its power and that it is appropriate to make that decision, the Tribunal sought responses from the parties to the questions set out below.
A telephone directions hearing was held on 5 May 2023. The parties were represented by their solicitors. They indicted their preference to provide written submissions, which were subsequently lodged. Having read those submissions, the Tribunal indicated to the parties that it is satisfied that it is within the power of the Tribunal and that it appears appropriate to make the decision that was requested. The Tribunal confirmed that it would provide written reasons. Those reasons are set out below.
The Applicant is 22 years old and is a participant in the National Disability Insurance Scheme (“NDIS”). He has an intellectual disability and autism spectrum disorder. His behavioural challenges are complex and persistent. For five years, he has resided alone in a “supported living unit” under supervision, by registered disability service providers. His application to the Tribunal for review of the internal review decision by the National Disability Insurance Agency (“the Agency”), claimed that his NDIS plan does not address his needs with regard to transport funding, behaviour support, and therapy supports.
The Applicant’s family maintain their care, support, and involvement with him. They have guardianship and special orders in place. The Applicant’s mother wrote a detailed and helpful statement of lived experience on 4 May 2023, which, together with allied health reports, provided comprehensive details about her son’s disability, education, development and accommodation. For the purposes of these written reasons, the particular issues of relevance and concern, commence in 2018. At that time, the Applicant, aged 17, was receiving accommodation services, carer support and allied health therapies from a disability services provider, Minda. With the exception of accommodation, those services were withdrawn in 2019. Until that point, the Applicant had been attending school five days per week and, as his mother pointed out “he had structure and routine. He used to come and mow our lawns every fortnight and we were able to see him face to face for visits.” All of this came to an end, permanently.
The Applicant has a history of challenging behaviours. Those challenges include violence towards other people and extensive damage to property. Indeed, the challenges for his parents and service providers are extreme and cannot be underestimated. They are recited in considerable detail in the reports, which have been provided in the T-Documents and in Supplementary Documents.
In the statement of lived experience the Applicant’s mother wrote that she and her husband have been advocating for years for their son to have opportunities for greater participation within the community and in life. She wrote “we do not want him to be living in seclusion 24 hours a day and I have seen the very real decline in his mental health that has been the result of being in isolation as a result of the unsuitable environment in which he has been living. He is dealing both with trauma he has experienced in his life and depression from the isolation of his current environment.”
In their respective submissions, both parties emphasise funding of supports in the context of the Applicant’s transition into new accommodation. The proposed, new living arrangements should provide the setting for services and supports which focus on the Applicant’s choice and control, personal dignity, safety, and opportunity for community inclusion.
A central issue is the Applicant’s past and present accommodation. He has resided alone in a disused, self-contained accommodation unit at Minda for five years. The daily support has been provided by another disability service provider, Community Living Options (“CLO”). The Applicant’s behaviours of concern have escalated and the challenges in addressing those behaviours have become increasingly complex.
Considerable efforts and energy have been directed towards supporting the Applicant to move out of this accommodation and into new, specialist disability accommodation. State government and non-government agencies have tried to devise, plan and implement a multi-faceted solution. The part of the solution with regard to accommodation appears to be addressed. It is about to occur, and it is the most important factor in the Tribunal’s decision to approve the parties’ section 42C request
ISSUE 1 - Whether the terms of agreement:
(a)give effect to any of the objects in s 3 of the NDIS Act
(b)give effect to any of the general principles in s 4 of the NDIS Act
(c)take into account the principle in s 5(c) of the NDIS Act
Both parties considered that the proposed terms of agreement give effect to the objects set out in s 3 of the NDIS Act and the general principles in s 4 of the NDIS Act.
With reference to s 3(1)(c), (e),(g) and (ga) of the NDIS Act, the Applicant’s solicitors submitted that the requested supports will provide the Applicant with maximum amount of choice and opportunity for participation, while promoting the provision of high quality and innovative supports and protecting him from experiencing harm from poor quality or unsafe supports or services.
In reference to s 4 of the NDIS Act, both parties agreed that the proposed terms of agreement are consistent with the general principles guiding actions under the legislation. Ss 4(1), (3), (6), and (11) of the NDIS Act were highlighted in support of the proposal. Those provisions incorporate fundamental and guiding principles about the rights of people with disability to receive lifetime care, and support, to participate equally with others in the community, in living independently, without abuse and with support to facilitate participation in their community.
S 5(c) of the NDIS Act provides circumstances when the judgements and decisions that people with a disability would have made, should be considered by others who have that role and responsibility. The Applicant’s solicitors pointed to the evidence of the continuing care and concerns of his parents, their involvement and undertaking of designated responsibilities and their understanding of him and his experiences. Their decisions have been informed by allied health reports, which include recommendations made by the Applicant’s behaviour support practitioners.
The Agency’s solicitors noted that the proposed move into new accommodation is the basis for the agreed supports. The purpose of those supports is to increase gradually the extent and the variety of the Applicant’s access to community. This will reflect an engagement with community, which is more meaningful than the measures that are presently in place.
ISSUE 2 - s 34 of the NDIS Act (reasonable and necessary supports):
(i)S 34 (1) (a) – whether the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations
Noting that:
The Applicant’s ’s NDIS plan (T 14) has a short term goal to live in a safe and accessible house that meets his support and sensory needs.
The Applicant’s NDIS plan includes provision within the capital support budget that notes he is eligible for specialist disability accommodation (robust; villa/duplex/townhouse; one resident; Adelaide South)
(a) Do the terms of agreement assist the Applicant to pursue the goal of securing safe and accessible housing and in what way?
(b) Is there a projected date for the Applicant to transition to the approved specialist disability accommodation?
The Applicant’s solicitor describes the current accommodation as “dilapidated, broken, cold and damp and looks and feels devalued creating a demoralising and unsustaining environment for the Applicant. It also fails to meet any of the Applicant’s sensory needs. Significant repairs have not been carried out as there is nowhere for the Applicant to be accommodated whilst this takes place.”
It is clear from the material provided to the Tribunal that the accommodation has been unsatisfactory for most, if not all of the time. Particularly, in the last four years, the environment has not met the Applicant’s physical and sensory needs. Seemingly, improvements could not be achieved within that setting. Accordingly, the Applicant’s parents have emphasised in their advocacy that alternative, suitable accommodation is required.
The first short term goal in the Applicant’s NDIS plan is to reside in suitable accommodation. The next short-term goal follows from the first and relates to positive experiences when his family visit him. Important medium or long-term goals include increasing his opportunity to participate in activities that he enjoys, which include:
·art and music;
·developing his communication skills to increase positive interactions with others;
·development of independent self-care and daily living skills; and
·having access to a modified vehicle to enable him to travel safely in the community.
Agencies at Commonwealth and State levels have been engaged at various times in the pursuit of specialist disability accommodation for the Applicant. Clearly the process has taken several years. However, it is about to come to fruition.
The projected handover date to the community housing provider for the new accommodation was 19 May 2023. The date for moving in is not currently available. However, the Tribunal accepts that the Applicant will be able to transfer to the new accommodation in the immediate future. Clearly, there will be issues around transition and the supports that will be required for it to succeed, both presently and into the future. The critical factor is that the house is available, and occupancy will occur in the near term. The property is located in the southern suburbs of Adelaide. The service provider, CLO, which has provided the support service from May 2019 onwards, will continue to provide the daily supports in the new location.
The Applicant’s solicitors provided a summary of the features of the new house, which is designed with specific focus on his disability and support needs. Those features take into account his sensory needs. It is anticipated that the accommodation will assist the Applicant’s support workers in engagements with him and that it will provide a more conducive environment for the family to visit. Unlike his present accommodation, which is apparently without sunlight, the new arrangement includes an outdoor space. The Applicant’s solicitor describes it as “a pleasant and aesthetically pleasing environment in contrast to the devalued and rundown environment the Applicant currently lives in which has had a negative impact on his mental health and well-being.”
The Agency’s submission confirms that the primary purpose of the s42C request is to facilitate the Applicant’s supports to enable him to move into new accommodation.
(ii)S 34(1)(c) – 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
Noting that:
The total of funded supports in the NDIS plan 21 October 2021 – 21 October 2022 is $1,545,607.67 (T 14)
The total of funded supports in the NDIS plan 20 August 2020 – 20 August 2021 is $1,708,297.06 (T 13)
The total of funded supports in the NDIS plan 20 February 2020 – 19 February 2021 is $528,838.08 (T 12)
(a) What is the total funding for the supports in the proposed statement of participant supports pursuant to the terms of agreement?
The Agency calculated the total annual funding of the proposed participant supports at $1,852,330.79.
(b) In addition to the funding for supports in the proposed statement of participant supports, is there an additional cost for accessing the accommodation unit at Minda and, if so, how much?
Based on the information available to the Tribunal, an additional financial outlay has come from the Applicant himself, as the cost of board and lodging is taken fortnightly from his disability support pension.
(c) Do the terms of agreement meet the criterion in s 34 (1) (c) of the NDIS Act and in what way?
In the Applicant’s submissions, his solicitor contrasted the proposed supports against the past and present supports and accommodation. In new and contemporary accommodation, the purpose of the requested supports will move from stabilising the Applicant’s behaviour to a developmental approach. This approach aims to enhance his growth, participation and reduce the frequency and impact of the challenging behaviours. The proposed terms, on this submission, provide value for money. They pre-suppose that the Applicant will have the supports which he needs to support him in the proposed accommodation. With the aim of reducing the challenging behaviours, there should be a reduction in some of the supports.
The Agency’s solicitors agreed that the proposed new environment will provide the setting which should improve the delivery of supports and lead to a gradual improvement in the Applicant’s functional capacity. Reservations were expressed about the level of staffing support at 3:1, as the Agency initially intended it to be a short-term proposal. It is now entrenched. The Agency’s submission expressed its concern that “that there has been no reduction to this level of support or substantial change in the way that the staff engage with the Applicant on a day-to-day basis, the continued implementation of restrictive practices, including the continued use of containment and restraint with limited information or evidence of attempts to reduce this level of support and instead receiving continued requests to increase those supports.”
Nonetheless, the Agency considers that the proposed terms of agreement meet the statutory criterion of value for money. In doing so, the Agency’s submission notes that the quality and the cost of alternative supports and the proposed benefits for the Applicant are important factors to be taken into account.
Rule 3.1 of the NDIS (Supports for Participants) Rules 2013, sets out the matters which must be considered in deciding whether the support represents value for money. The Tribunal is satisfied that those matters have been considered by the parties in their analyses and discussions.
(d) Do the terms of the agreement have regard to the requirement in s 3 (3)(b) of the NDIS Act concerning the need to ensure the financial sustainability of the scheme? Is the financial sustainability of the scheme affected adversely by the terms of agreement?
The Agency considered that the terms of agreement do not have a negative impact on the Scheme’s financial sustainability. Relevant factors include the transition from unsatisfactory accommodation into longer term sustainable accommodation, which should provide the basis for the Applicant to increase the frequency and the way in which he accesses the community. An improved accommodation setting should be beneficial to reduce the Applicant’s behaviours of concern which, in turn, should reduce the level and cost of support. The Agency has agreed to some supports with a 6 to 12 months duration with the aim and expectation that they will be reduced. The Agency reiterated its view that support levels at 3:1 were only intended for short term use, however they have continued at that level and have been justified because of the complexity of “stabilising the Applicant within his current environment.”
The financial sustainability of the Scheme is specified in s 209(3) of the NDIS Act, which provides that in making the NDIS Rules, the Minister must have regard to the objects and principles of the Act, together with the need to ensure the financial sustainability of the NDIS. In accordance with s 125B of the NDIS Act, the Minister may make rules by legislative instrument relating to management of risks, including financial risks, that the Agency’s Board must comply with in carrying out its functions.
Under s 118(1)(b) of the NDIS Act, the Agency has responsibility for managing the financial sustainability of the Scheme, which includes:
·making estimates of current and future expenditure;
·managing risks to financial sustainability; and
·taking into account advice from both the scheme actuary nominated under s 180A of the NDIS Act and the reviewing actuary nominated under s 180D of the NDIS Act.
The Agency’s Board must have regard to actuarial analysis and advice in accordance with s 125A of the NDIS Act.
The cost of the Applicant’s funded supports increased from a relatively high annual expenditure of $528,838.08, commencing in February 2020, then moving to, in effect, a base line of no less than $1.5 million per year, while the current proposal edges towards $2 million for 12 months of supports. The Applicant is 22 years old with a lifetime of NDIS support ahead. The significant upward trajectory in funding his accommodation and supports follows annual reviews of at least three of his plans. The Agency is clearly in a position to assess the trends and the risks in the analysis of proposals for funding of his supports. It is unlikely that this case is unique. In other cases, before the Tribunal, requests are made for the Agency to fund levels of support at 2:1, 3:1, and even 4:1, for prolonged periods during the day and into the night. This is not the only, individual participant NDIS plan funded at annual levels in the vicinity of $1.5 million.
For present purposes, in consideration of the circumstances of this case, in which there is no evidence about actuarial calculations, participant numbers and multi-factored projections, the Tribunal acknowledges the Agency’s expression of confidence that the financial sustainability of the Scheme will not be jeopardised by funding a participant’s plan on this scale.
iii)S 34 (1) (d) – whether the support will be, or is likely to be effective and beneficial for the participant, having regard to current good practice
Noting that:
A report dated 21 September 2021 by a behaviour support practitioner (T8) refers to a positive behaviour support plan commencing in June 2021.
In accordance with Rule 22 of the NDIS (Restrictive Practices and Behaviour Support) Rules 2018, a comprehensive behaviour support plan containing a regulated restrictive practice must be reviewed by an NDIS behaviour support practitioner at least every 12 months while the plan is in force.
(a) Is a current behaviour support plan in place? What is the review date? When was the behaviour support plan lodged with the Commissioner of the NDIS Quality and Safeguards Commission (Rule 24 of the NDIS (Restrictive Practices and Behaviour Support) Rules 2018)?
The NDIS Quality and Safeguards Commission has responsibility for functions under the National Quality and Safeguarding Framework. The preamble to the NDIS (Restrictive Practices and Behaviour Support) Rules 2018 (“NDIS Restrictive Practices Rules”), states that those rules “are intended to support participants to be informed purchasers and consumers of NDIS supports and services and to live free from abuse, neglect, violence and exploitation.” Under Rule 9 of the NDIS Restrictive Practices Rules, if a State or Territory has an authorisation process regarding the use of a regulated restrictive practice, a registered NDIS provider must lodge evidence with the Commissioner of the NDIS Quality and Safeguards Commission that the use of the regulated restrictive practice is authorised under the applicable authorisation process.
The requirements for the development of behaviour support plans that contain a regulated restrictive practice are set out in the NDIS Restrictive Practices Rules. A regulated restrictive practice is one that involves seclusion, chemical restraint, mechanical restraint, physical restraint or environmental restraint in accordance with the definitions of each of those restraints in Rule 6. Rule 20(2) of the NDIS Restrictive Practices Rules, requires that a behaviour support plan that contains a regulated restrictive practice must be made in accordance with any authorisation process in the State or Territory, in which it is to be used.
The South Australian government has an authorised process for the use of a regulated restrictive practice. Section 23F of the Disability Inclusion (Restrictive Practices – NDIS) Amendment Act 2021 (SA) (Amending Act SA”), provides for the interaction of that Act with the NDIS Restrictive Practices Rules, the Mental Health Act 2009 (SA), the Guardianship and Administration Act 1993 (SA) and any other Act or law that authorises the use of restrictive practices. For the purposes of the South Australian legislation, a restrictive practice is defined as a regulated restrictive practice within the meaning of the NDIS Restrictive Practices Rules and a distinction is drawn between a level 1 restrictive practice and a level 2 restrictive practice. The Disability Inclusion (Restrictive Practices – NDIS) Regulations 2021 (SA), provides further details of level 2 restrictive practices.
S 23G of the Amending Act SA includes principles to be observed in the use of restrictive practices. S 23G of the Amending Act SA states:
“The following principles are to be observed in the operation of this Part:
(a) restrictive practices should only be used by prescribed NDIS providers in limited circumstances, as a last resort, in the least restrictive way and for the shortest period possible in the circumstances;
(b) the use of restrictive practices is to be limited to circumstances in which prescribed persons cause, or may cause, harm to themselves or others;
(c) the use of restrictive practices in relation to a prescribed person must be done in a manner that—
(i)is, as far as is practicable, consistent with the prescribed person's human rights; and
(ii)safeguards the prescribed person and others from harm; and
(iii)is proportionate to the potential negative consequence or risk of harm; and
(iv)maximises the opportunity for positive outcomes and aims to reduce or eliminate the need for use of restrictive practices; and
(v)ensures transparency and accountability; and
(vi)ensures, where relevant, that restrictive practices are used in relation to a prescribed person in a way that is consistent with a behaviour support plan for the prescribed person;
(d) the use of restrictive practices must not be used—
(i)as a punishment or for the convenience of others; or
(ii)to address inadequate levels of staffing, equipment or facilities
The Amending Act SA provides for the appointment of a Senior Authorising Officer, whose functions include authorising the use of level 1 and level 2 restrictive practices. A prescribed NDIS provider who is authorised to use level 1 and 2 restrictive practices pursuant to an authorisation must comply with restrictive practice guidelines. The South Australian Minister for Human Services issued Restrictive Practices Guidelines, dated 23 December 2021, under Part 6A of the Amendment Act SA.
Within the bewildering labyrinth of national and state, acts, rules, regulations and guidelines is the need for registered NDIS service providers to ensure compliance with both the national requirements and the state requirements. Restrictive practices must be seen in a practice context, which is described as positive behaviour support. The restrictive practises must reflect and be supported by a behaviour support plan.
The Applicant’s solicitor provided the Tribunal with a copy of the Applicant’s Restrictive Practice Authorisations Statement, dated 23 September 2022, authorised by an officer of the South Australian Department of Human Services Restrictive Practices Unit. The commencement dates for each of the restrictive practices is 15 September 2022, and the end date for each of them is 24 September 2023. The restrictive practices which are authorised are chemical restraints for the administration of medication, namely sodium valproate, clonidine, lorazepam, olanzapine, chlorpromazine, clonazepam and olanzapine; environmental restraints are authorised, namely CCTV in all areas other than the Applicant’s bathroom, vehicle safety locks, safety door rope catchment, furniture bolted to the ground, transport in van not to occur when the Applicant is “heightened”, no access to kitchen and fridge, intensive supervision, mains water turned off, items can be removed during a behavioural escalation, locked video cabinet, access restricted to expensive items which are to be used under supervision (for example an iPad), access only to plastic plates and utensils; physical restraints are authorised namely a one person hold and a two person hold.
The Tribunal has been provided with a copy of a comprehensive Behaviour Support Plan compiled by a behaviour support practitioner. It is written on a form under the NDIS Quality and Safeguards Commission letterhead, which is approved by the Commission for the purposes of section 23 of the NDIS Restrictive Practices Rules. The plan includes a purported start date on 24 June 2022, with a review date scheduled for 24 June 2023. The 52-page document includes a proviso that the NDIS Commission “makes no representation about and accepts no liability for the accuracy of information in this document” about the 24 hour, seven day per week regime of restraints under which the Applicant lives.
On 19 October 2022, the South Australian Civil and Administrative Tribunal (“SACAT”) made orders appointing the Applicant’s parents, jointly and severally as full guardians of the Applicant, to be reviewed by 17 October 2025.A “special powers order” under ss 32 and 57 of the Guardianship and Administration Act 1993 (SA), had been made on 24 November 2021. This was ordered to remain in force. The SACAT order included:
·a direction that the Applicant reside in such place as the guardian from time-to-time thinks fit;
·authority for the detention of the Applicant at a place that the guardian decides he is to reside; and
·authority under the special powers order for the persons involved in the Applicant’s care “to use such force as may be reasonably necessary for the purpose of ensuring the proper medical or dental treatment, day-to-day care and well-being” of the Applicant;
This order is to be reviewed by 18 October 2023.
While the Applicant’s impairments of intellectual disability and autism spectrum disorder are not in contention, it is concerning that the Behaviour Support Plan indicates that there are no formal cognitive assessments on file. That plan acknowledges that the Applicant has experienced a high level of trauma from long-term seclusion with the likelihood that he has become institutionalised, due to the environment in which he has resided for five years. It is reported that he experiences high levels of anxiety around routine changes and staff changes. Not surprisingly, it is acknowledged in the plan that he becomes bored.
The Agency’s solicitors stated that the Agency relies on the Applicant’s submission to confirm that the Behaviour Support Plan was lodged with the NDIS Quality and Safety Commission on 20 September 2022, and that the restrictive practices are fully authorised.
The Applicant’s solicitor provided confirmation to the Tribunal that the Behaviour Support Plan was lodged with the NDIS Quality and Safeguards Commission on 20 September 2022. This confirms a fully authorised status for a comprehensive Behaviour Support Plan.
(b) Correspondence from Kudos (T10) stated that the Applicant was in urgent need of a comprehensive health and dental review. Has that review taken place?
The review has not occurred. It is well overdue. It was planned prior to the onset of COVID-19 restrictions. A support coordinator confirmed that extensive liaison occurred between the Applicant’s support workers and SA Health. It was proposed that the Applicant be fully sedated under general anaesthesia for the dental and health checks. Post medical and recovery procedures were planned. The admission date was confirmed. SA Health cancelled the admission 24 hours beforehand “due to the high risks involved.’ The support coordinator confirms that a comprehensive medical and dental review is still a “crucial need”. It appears that arrangements are currently within the remit of the SA Intellectual Disability Health Service and the results of a risk assessment are pending.
(c) By what means is it proposed that the capacity building daily activity supports will be delivered (dietician support, occupational therapy, speech therapy and art therapy)?
These services and supports are described as a “consultative model of support” for speech therapy and dietary issues. This would appear to involve the development of plans for staff and training them in the implementation of strategies to support the Applicant. An occupational therapy report dated 13 January 2021, noted that the Applicant eats without choking and drinks without aspirating. His meal plan caters for takeaway food every second day. The provision of art therapy occurs through a metal grille in an outer courtyard, or inside with a wall and windows separating the Applicant and the art therapist. Through one or other of those methods, the art therapy proceeds, as the therapist reported, under the supervision of support staff and “via closed circuit cameras, which are ultimately necessary given the circumstances. However, this adds an additional layer of complexity for delivering arts therapy sessions” amounting to a “formidable challenge… within the context of a therapeutic relationship.” The occupational therapy support appears to involve consultation with the Applicant’s behaviour support practitioner.
(d)Is the 3:1 model of MAPA behaviour support including staff use of PPE in their interactions with Mr Tweed a model that is consistent with current good practice?
The Behaviour Support Plan confirms that from July 2019, through to the present time, support staff have worn personal protective equipment (“PPE”). Any direct physical interaction with the Applicant is planned. It involves two staff members engaging with the Applicant and a third staff member on standby.
MAPA is a strategy for “Management of Actual or Potential Aggression”. In a report by the clinical psychologist, Mr Richard O’Loughlin, the MAPA techniques are described as a last resort in relation to potential harm. Specifically, he states:
“staff are trained in their use and they are only legally allowed to use MAPA blocks/holds for assaults to staff in order to keep themselves safe or assist a fellow staff member if at risk/injured. MAPA approaches are considered a safe, non-harmful and last resort when the person is in crisis and displaying behaviours of concern that put themselves or others at risk. The holds used should be proportionate to the level of risk the behaviour of concern presents and only implemented by fully trained workers. All regulated restrictive practices (seclusion, physical restraint and various environmental restraints) are documented in the behaviour support plan and are reported on by CLO to the NDIS Quality and Safeguards Commission.
The Positive Behaviour Practitioner confirmed that “behaviour support” of this type is “currently best practice”. The Applicant’s risk to others through physical aggression was categorised as extreme and potentially catastrophic. Several WorkCover claims have been lodged for injuries to staff members, which include a dislocated shoulder requiring surgery, concussion, a staff member being knocked unconscious, a sprained wrist, headaches and bruising.
The background information in the current support plan indicates that staff have used PPE in their interactions with the Applicant from July 2019, that is for almost four years. The minimum amount of protective equipment includes helmets and shinpads. Additional equipment is available on site. It includes shirts with padded shoulder/rash vest and a skull cap to be worn under the helmet. All staff wear the PPE when any of them work in the Applicant’s area or through a tether door. The 3:1 ratio of staff to client is used for any face-to-face involvement and for transferring him into and out of a vehicle. The vehicle is a van. Trips in the van are scheduled regularly and sometimes last for up to three hours in the southern suburbs and Adelaide Hills. Three staff members escort the Applicant into a “safety capsule” in the back of the van. He cannot reach the driver or passenger when he is sitting in the capsule. There are always two staff in the vehicle. An occupational therapist reported that this type of community access is crucial to the Applicant’s mental health. It is one of the few times that he communicates openly with staff and is able to exercise choice about the directions and locations for the outing.
While the behaviour support practitioner referred to this level of behaviour support as best practice, correspondence as far back as 7 July 2020, sounded a note of caution. In a letter written by the clinical services manager of CLO, Ms Sue Goodall and clinical psychologist, Mr Richard O’Loughlin, it was observed that the Applicant’s “degree of disability and extreme behavioural and support needs leads to more restrictions as he becomes more reactive; in turn leading to further reactivity and even more restrictions – resulting in decreasing his quality of life and tighter controls.” Yet three years later, as the current Behaviour Support Plan noted it is unlikely that the environmental restraints, seclusion restraints and physical restrictive practices will be faded out in the foreseeable future.
The Behaviour Support Plan stated that possible reduction of chemical restraints will be assessed according to the number of behavioural incidents occurring each month and subject to consultation with a psychiatrist and general medical practitioner.
The Agency’s solicitors responded in their submission to the effect that the 3:1 MAPA model is not a matter with which the Agency concerns itself, rather it is the responsibility of the disability service provider and the behaviour support practitioner. That responsibility includes the “implementation of current good practice behaviour management systems and strategies.”
ISSUE 3 - Has a plan nominee been appointed for the Applicant?
Appointment of a plan nominee has not been necessary in view of the SACAT orders, which are discussed above.
An administration order was made on 19 October 2019. The administration order remained in force, following review by SACAT on 19 October 2022. On 26 April 2023, the administration order was varied by SACAT. Currently, the Public Trustee is appointed as the full administrator of the Applicant’s estate.
SUMMARY
The Tribunal is guided by the statements in Re Goodricke and Comcare,[1] concerning the Tribunal’s power under s 42C of the AAT if the parties reach an agreement:
……
The language of the section makes it abundantly clear that the evidentiary threshold required for the making of a consent decision under s 42 C is lower than that required for a decision under s 43, the source of the Tribunal’s general decision-making power. The power in s 42 C is consistent with an approach which encourages parties in proceedings to discuss and, if possible, reach agreement as to the matters in dispute between them. The sections provisions empower parties in that circumstance to convert their agreement into an enforceable decision of the Tribunal. Clearly, too, the consent provision serves the Tribunal’s objective of promoting administrative review which is affordable to Applicants, in that a consent decision avoids the expense associated with making submissions and adducing evidence in a hearing.
It follows from this that the s 42C power can be exercised without the Tribunal apprising itself of the matters it would be required to comprehend before exercising its power under s 43.This approach was reflected in the decision of French J (as he then was) in Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323. His Honour was there addressing the requirements on the court when confronted by an application for consent orders under s 87 of the Native Title Act 1993, a provision not dissimilar to s 42C. His Honour observed:
12 it is not the function of the court to impede settlement between parties legally represented and able to understand and evaluate the desirability of agreeing to a settlement nor to refuse to give effect to terms of settlement by refusing to make orders or accept undertakings where they are within the court’s jurisdiction and are otherwise unobjectionable. In relation to proposed consent orders and undertakings the Court will not simply substitute its own view of the orders it would have made if those proffered fall within the range of an appropriate disposition of the case. That does not exempt the Court making such an order from ensuring it is within power and that it is appropriate to make the order. …14This approach to the making of consent orders does not require exacting inquiry into the basis for every such order that is sought. There are many consent orders both of an interlocutory and a final nature which are perfectly regular and within power on their face and which reflect a considered resolution by parties of legal capacity to make the agreements reflected by those orders. One example of a ‘routine order’ of this kind is a consent order dismissing an application. There are other orders which have particular public interest elements and require closer examination before the Court accedes to them.”
[1] [2017] AATA 1249 at [82] (DP Humphries).
The terms of agreement between the parties are substantially based on the Applicant’s move to new accommodation. The new housing is the linchpin of the request for proposed funding for supports in the new statement of participant supports. The Tribunal notes that the amount of funding does not differ significantly from the amount of funding under previous plans when the supports were funded and provided in unsuitable and unsatisfactory accommodation. However, declining to give effect to the parties’ current request for an agreement would jeopardise the transition to the new house. Clearly that would not be satisfactory.
While the transition to the new house is desirable and necessary, accommodation is only one of numerous factors that should be addressed in the implementation of the Applicant’s next NDIS plan and in successive plans. This is a factor which is acknowledged in the allied health documents. Clearly the Applicant can look forward to comfortable, accommodation, however he will still be significantly isolated. Services and support will be implemented with an array of restrictive practices, which will include various forms of physical restraint, environmental restraint, chemical restraint, seclusion and detention.
It is difficult to glean much detail from the documents about planning for possible socialisation with the Applicant’s peers or any consideration of gradually engaging him with day options disability services and activities. Engagement with support workers is not comparable to contact with a peer group. His isolation is likely to continue. His participation in the community is likely to be severely limited to being a spectator, restrained in the back of a modified vehicle. While the parties are well aware of these issues and these challenges, the funding and implementation of the new statement of participant supports must delve further into the objects and guiding principles of the NDIS Act. Necessarily, those objects and principles are described in ways that are extremely broad and open to various interpretations. For this Applicant, it is significant to acknowledge that the terms of agreement provide for level 3 specialist support coordination for 192 hours as part of the capacity building supports. Through that level of specialist support, scope should exist for exploring avenues to enhance the Applicant’s developmental needs in accordance with his rights and preferences. The provision of significant funding for support coordination is linked into other, important proposed supports in capacity building and social participation. The Applicant’s mother wrote that she and her husband have been advocating for years for their son to have opportunities for greater participation in community and in life. Specifically, she stated:
Our hope is that (our son) will experience real gains from his new accommodation and the supports around this. Over time we anticipate seeing an improvement, but we also realise that due to the entrenched behaviours this progress may take some time given the impact of the disruption to supports and unsuitable accommodation of the last five years.”
With regard to s 42C(1)(c) of the AAT Act, the Tribunal is satisfied that a decision in the terms which the parties request is within the powers of the Tribunal and that it is appropriate to make a decision in accordance with those terms.
DECISION
In accordance with subsection 42C(2) of the Administrative Appeals Tribunal Act1975 (Cth) (“the AAT Act”), the decision under review, made under s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (“the Act”) dated 8 March 2023 and pursuant to orders made under s 42D of the AAT Act on 9 February 2023 is set aside and substituted with a new decision to approve a statement of participant supports (“SOPS”) which:
1.Specifies pursuant to s43(5B) of the AAT Act, the decision of the Tribunal under s42C of the AAT Act (Tribunal Decision) will come into operation on the date that the Respondent issues a new SOPS in accordance with these terms, which must be no later than 28 days after the Respondent receives notice of the Tribunal Decision.
2.Specifies as the date by which the Respondent must reassess the plan (Reassessment Date) as the date occurring on expiration of 12 months after the decision of the Tribunal comes into operation in accordance with paragraph 1 above;
3.Specifies the following Core Consumables support:
(a) $7,318.50 for continence consumables and low cost assistive technology
4. Specifies the following Core Daily Activities supports:
(a) $1,289,616.60 for regular Supported Independent Living (SIL) supports
(b) $17,273.02 for irregular SIL supports
(c) $470 per month over six months for bio cleaning
5. Specifies the following Core Social Community and Civil Participation support:
(a) Four hours per day (Monday to Sunday) of 3:1 assistance to access community, social and recreational activities
6. Specifies the following Core Transport support:
(a) 400km per week at $2.40 per kilometre
7. Specifies the following Capacity Building Choice and Control supports:
(a) $232.25 for set up costs
(b) $1,253.40 for plan management
8. Specifies the following Capacity Building Daily Activity supports:
(a)14 hours Dietician support
(b)78 hours of Occupational Therapy
(c)30 hours of Speech Therapy
(d)24 hours of Art Therapy
9. Specifies the following Capacity Building Relationships supports:
(a) 200 hours of Specialist Behaviour Intervention Supports
(b) 74 hours of Behaviour Management Plan and Training
10.Specifies the following Capacity Building Support Coordination:
(a)192 hours of Level 3 Specialist Support Coordination
11.Specifies the following Capital Supports:
(a)All Capital Supports in the SOPS approved on 8 March 2023 to be replicated with the exception of any furniture items that have already been funded and provided
12.Replicates the plan management arrangements as specified in the SOPS approved on 8 March 2023.
AND THE TRIBUNAL NOTES THAT:
A.For completeness Parties note that the regular SIL package is sufficient to fund the following support worker assistance:
(i)Eight hours of 2:1 overnight support comprising one active worker and one passive (sleepover) worker
(ii)Seven hours of 3:1 daytime support
(iii)Five hours of 2:1 daytime support
I certify that the preceding sixty-five [65] paragraphs are a true copy of the reasons for the decision herein of Member Thompson.
................[sgnd]........................
Legal Associate
Dated: 12 July 2023
Date of Hearing: 5 May 2023
Advocate for the Applicant: Ms Simonne Price
Legal Services Commission
Advocate for the Respondent: Ms Angela Barac
Maddock Lawyers
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