TXDT and National Disability Insurance Agency
[2023] AATA 4284
•22 December 2023
TXDT and National Disability Insurance Agency [2023] AATA 4284 (22 December 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/7967
Re: TXDT
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member P Smith
Date:22 December 2023
Place:Sydney
Pursuant to subsection 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and remits the matter to the Chief Executive Officer of the National Disability Insurance Agency with the direction that funding be approved in a statement of participant’s support in the Applicant’s Plan over a 12-month period for two hours of psychology support per week with the plan to be plan managed.
............................[SGD]............................................
Member P Smith
Catchwords –
NATIONAL DISABILITY INSURANCE SCHEME – application to review a decision of the National Disability Insurance Agency to approve a statement of participant supports in a participant’s plan – whether the Applicant’s requests for funding to cover the costs of legal services are reasonable and necessary – whether the Applicant’s request for funding to cover the costs of psychological therapy support are reasonable and necessary – whether the Applicant’s request for funding to cover the costs of scriptwriting support are reasonable and necessary – whether the Applicant’s request for funding to cover the costs of the Applicant’s transport and accommodation to travel to Queensland to visit her biological mother are reasonable and necessary – whether the Applicant’s request for funding to cover the costs of medicinal oil and flower cannabis are reasonable and necessary – whether the Applicant’s request for funding to cover the costs of gluten free diet food items are reasonable and necessary – whether the Applicant’s request for funding to cover the costs of internet usage at her home are reasonable and necessary – whether the Applicant’s Plan should be self-managed - decision under review set aside
Legislation
National Disability Insurance Scheme Act 2013 (Cth), ss.31, 32, 33, 34, 35, 36, 42, 48, 100(6)(a), 209(1)
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth), ss.35(3), 42D, 43(1)(c)(ii)
Cases
National Disability Insurance Agency v WRMF [2020] FCAFC 79; (2020) 276 FCR 415.
McGarrigle v National Disability Insurance Agency [2017] FCA 308; (2017) 252 FCR 121.
JQJT and the National Disability Insurance Agency [2016] AATA 478.
Secondary Materials
National Disability Insurance Scheme (Supports for Participants) Rules 2013
National Disability Insurance Scheme – Operational Guidelines – Planning
National Disability Insurance Scheme (Plan Management) Rules 2013
REASONS FOR DECISION
22 December 2023
INTRODUCTION
In November 2018, the Applicant, TXTD[1], became a participant in the National Disability Insurance Scheme (the NDIS) on the basis of her primary diagnosis of Borderline Personality Disorder (BPD)[2]. She has also reported that she has other diagnoses, namely, anxiety, depression, Post-traumatic Stress Disorder, and complex trauma[3]. Furthermore, the Applicant has a diagnosis of coeliac disease[4].
[1] On 17 November 2023, I made an order pursuant to subsection 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) in which I directed that the name, address, or any other information tending to reveal the identity of the Applicant must not be published; and that the name of the Applicant is to be replaced with a pseudonym. The Tribunal notes that the Applicant made a request to the Tribunal for a non-publication order via email on 1 November 2023 on the basis that that she did not want her biological family to know about her medical conditions. The Tribunal notes further that the Respondent, when asked, did not oppose the Tribunal making an order under subsection 35(3) of the AAT Act.
[2] See paragraph [3] of the Statement of Facts, Issues and Contentions prepared for the Respondent on 16 March 2023 at R2 of the Tender Bundle.
[3] See the Occupational Therapy Support Letter of Melissa La Manna, Occupational Therapist, dated 31 August 2021 at page 32 of T5 of the T-documents.
[4] See the letter from Dr Allison Bielawski, Medical Practitioner to Caroline Bush, Partner, Clayton Utz, dated 10 March 2022 at page 242 of A6 of the Tender Bundle.
On 24 February 2020, a delegate of the Chief Executive Officer (the CEO) of the National Disability Insurance Agency (the Respondent) approved a statement of participant supports (SOPS) in the Applicant’s Plan under subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) for a two-year period commencing on 24 February 2020 to be reviewed by the Respondent by 23 February 2022[5].
[5] See page 38 of T6 of the T-documents.
On 13 July 2021, the Applicant notified the CEO of the Respondent of changes to her circumstances. The changes to her circumstances were recorded by the Applicant in a Change in Circumstance Form[6]. This information assisted the Respondent to complete what was then known as an unscheduled plan review[7] of the SOPS that they approved in the Applicant’s Plan on 24 February 2020.
[6] See pages 26 to 31 of T4 of the T-documents.
[7] As a result of legislative amendments to the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) under the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth), that commenced on 1 July 2022, the term ‘review’ was replaced with the term ‘reassessment’ in section 48 of the NDIS Act for the purpose of reassessing a participant’s plan.
On 9 September 2021, following the completion of what is now known as an unscheduled reassessment[8] of the SOPS that was approved in the Applicant’s 24 February 2020 plan, a delegate of the CEO of the Respondent (delegate) approved another SOPS in the Applicant’s Plan under subsection 33(2) of the NDIS Act. This Plan commenced on 9 September 2021, also for a two-year period to be reassessed by the Respondent by 9 September 2023[9].
[8] See footnote 7.
[9] See pages 52 to 61 of T7 of the T-documents.
On 5 October 2021, the Applicant made an oral request to the Respondent by telephone in which she requested that they conduct an internal review of the decision that a delegate made on 9 September 2021 to approve a SOPS in the Applicant’s Plan under subsection 33(2) of the NDIS Act[10].
[10] See page 7 of T1A of the T-documents.
On 7 October 2021, after completing their internal review, the Respondent, under subsection 100(6)(a) of the NDIS Act, confirmed the decision that was made on 9 September 2021 by a delegate to approve a SOPS in the Applicant’s Plan under subsection 33(2) of the NDIS Act[11].
[11] See T1A and the duplicate at T2 of the T-documents.
THE TRIBUNAL PROCEEDING
On 22 October 2021, the Applicant lodged an application to the Tribunal for a review of the internal review decision made by the Respondent on 7 October 2021 under subsection 100(6)(a) of the NDIS Act, which confirmed the decision made by a delegate on 9 September 2021 to approve a SOPS in the Applicant’s Plan under subsection 33(2) of the NDIS Act[12]. On her application, the Applicant, when asked to describe the decision of the Respondent, stated[13]:
The decision discriminates against some participants and not others and they flat out lie about their ‘legislative rules and internal policies‘ they have told a representative of legal aid they ‘don’t want to open the Can of worms’. This is not a reasonable answer and the people making the decisions have no medical background and have no idea what they’re deciding on.
I have coeliac disease and I need help conforming to this very strict diet if I don’t eat gluten free food I get cancer. I find this disease very difficult to prepare food for given that gluten free food does not behave like usual food with gluten in it. Also gluten-free food is between 3 to 10 times more expensive than regular food and being on a disability pension I cannot afford this. My neighbour gets a food stipend because she has obesity I know other participants get food stipends for Far less serious diseases then coeliac disease and I find this decision discriminatory. The NDIS claim to decide each case on individual basis but this is not correct they tell me over and over that their blanket legislation does not allow for me to get any support regarding food although I know they support other people with far less serious diseases than mine. I believe this is because they do not understand what coeliac disease is and do not want to look at their discriminatory policies.
They flat out lie and tell me they don’t cover things like psychological services and food but I know this is completely incorrect as they do both for my neighbour.
Food is my medicine and I struggle to prepare and stick to this difficult diet because of expense and difficulty understanding how to cook for this diet.
I also have a second problem where I am prescribed a natural but expensive drug from a doctor and and [sic] it is not covered by Medicare. The laws discriminate against poor people because if you can’t afford $480 a week you don’t get to buy this medicine I am wanting to get help through the NDIS to buy this medicine and given the Christian old-fashioned views and the natural medicine the NDIS do not approve this. The pharmaceutical industry is price gouging this very simple and natural inexpensive drug they have marked the price up 700% and this puts it out of reach from most of the population. I would like these decisions reviewed and someone rational overturn this on the face of it.
[12] See T1 of the T-documents.
[13] See page 4 of T1 of the T-documents.
In the course of the proceeding, the Tribunal notes that two further SOPS in the Applicant’s Plan were approved by the Respondent, namely:
(a)The SOPS approved in the Applicant’s Plan on 17 November 2022 commenced on 17 November 2022 and was to be reassessed by the Respondent by 17 January 2024[14]. This Plan was approved by the Respondent after receiving information regarding the Applicant. This information was used by the Respondent to help them to complete an unscheduled reassessment of the Applicant’s Plan that was approved on 9 September 2021 and confirmed on internal review on 7 October 2021.
(b)The SOPS approved in the Applicant’s Plan on 15 November 2023 commenced on 15 November 2023 to be reassessed by the Respondent by 15 February 2024[15]. This Plan was approved by the Respondent following the order I made on 8 November 2023 under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to remit the decision under review to the CEO of the Respondent for further consideration. This being at the request of the parties to ensure that the Applicant had ongoing access to funded supports while the Applicant’s application remained under consideration by the Tribunal[16].
[14] See page 1 of the statement of participant supports approved in the Applicant’s Plan by the Respondent on 17 November 2022, a copy of which was provided to the Tribunal via email on 2 May 2023 by Tal Aviram, Senior Associate, Clayton Utz.
[15] A copy of the statement of participant supports approved in the Applicant’s Plan by the Respondent on 15 November 2023 was provided to the Tribunal via email on 15 November 2023 by Henry McIntosh, Lawyer, National Disability Insurance Agency.
[16] See the email the Tribunal received from Henry McIntosh, Lawyer, National Disability Insurance Agency, on 1 November 2023.
The decision made by the Respondent on 15 November 2023 on remittal to approve a SOPS in the Applicant’s Plan as referred to above in paragraph [8b] is now the decision that has been reviewed for the purpose of the Applicant’s application to the Tribunal[17]. The Tribunal notes that the SOPS approved in the Applicant’s Plan by the Respondent on 15 November 2023 is in substantially the same terms as the SOPS that they approved in the Applicant’s Plan on 17 November 2022.
[17] See subsection 42D(4)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
THE ISSUES ON THE REVIEW
There are two issues for the Tribunal to determine on the review in this proceeding. The first issue to be determined by the Tribunal is whether the Applicant’s request for funding to be included in her Plan to cover the costs of the following are reasonable and necessary supports within the meaning of section 34 of the NDIS Act:
1). The provision of legal services;
2). Psychological therapy support;
3). Scriptwriting support;4). The Applicant’s transport and accommodation costs to travel to Queensland to visit the Applicant’s biological mother in April and May 2023;
5). Medicinal oil and flower cannabis;
6). Gluten free diet food items; and
7). Internet usage at the Applicant’s home.The second issue to be determined by the Tribunal is whether the Applicant’s funding for her supports in her Plan should be wholly self-managed.
HEARING OF THE APPLICATION
To assist the Tribunal to determine the issues on the review, a hearing of the application was held by the Tribunal via video on 2 May 2023.
The Applicant attended the hearing via video with her Disability Advocate, Mitch Malqueen (Ms Malqueen). Claire Roberts of Counsel (Ms Roberts) attended the hearing via video as the barrister for the Respondent. She was instructed at the hearing by Tal Aviram, a Senior Associate with Clayton Utz. He too attended the hearing via video.
The Tribunal received oral evidence at the hearing from the Applicant. The Tribunal also received oral evidence at the hearing via video from two medical practitioners, namely, Dr Yan Ren (Dr Ren) and Dr Allison Bielawski (Dr Bielawski).
The Tribunal notes that the Respondent’s expert witness, Dr Gaurav Tandon (Dr Tandon), Consultant Psychiatrist did not attend the hearing to give oral evidence as initially proposed. This is because the Applicant indicated through Ms Malqueen that she no longer proposed to cross-examine Dr Tandon at the hearing for the purpose of her application[18].
[18] See the email the Tribunal received on 28 April 2023 from Tal Aviram, Senior Associate, Clayton Utz.
THE STATUTORY SCHEME
Chapter 3 to the NDIS Act provides how persons with disability will become participants in the NDIS[19], and the process that follows for the development of personal, goal-based plans with the Respondent and receiving individualised supports, which could include funded supports.
[19] See Part 1 of the National Disability Insurance Scheme Act 2013 (Cth).
Section 31 of the NDIS Act sets out several principles that should, so far as reasonably practicable, be considered in relation to the preparation, variation, reassessment and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan.
If a person becomes a participant, the CEO of the Respondent must facilitate the preparation of the participant’s plan[20]. The CEO must also commence facilitating the preparation of the participant’s plan within 21 days of the person becoming a participant in the NDIS[21].
[20] See subsection 32(1) of the National Disability Insurance Scheme Act 2013 (Cth).
[21] See subsection 32(2) of the National Disability Insurance Scheme Act 2013 (Cth).
After a person becomes a participant in the NDIS, they develop a plan with the Respondent in two parts. The first part to the development of a participant’s plan includes the preparation of a statement (the statement of goals and aspirations). This statement is prepared by the participant. It specifies the participant’s goals, objectives, and aspirations[22], the environmental and personal context of the participant’s living, including the participant’s[23] living arrangements[24] and informal community supports, and other community supports[25]; and their social and economic participation[26].
[22] See subsection 33(1)(a) of the National Disability Insurance Scheme Act 2013 (Cth).
[23] See subsection 33(1)(b) of the National Disability Insurance Scheme Act 2013 (Cth).
[24] See subsection 33(1)(b)(i) of the National Disability Insurance Scheme Act 2013 (Cth).
[25] See subsection 33(1)(b)(ii) of the National Disability Insurance Scheme Act 2013 (Cth).
[26] See subsection 33(1)(b)(iii) of the National Disability Insurance Scheme Act 2013 (Cth).
The second part to the development of a participant’s plan includes the preparation of another statement (the statement of participant supports). This statement must be included in the participant’s plan as required by subsection 33(2) of the NDIS Act. It must also be prepared with the participant and approved by the CEO. It must specify a number of other matters, including the general supports (if any) that will be provided to, or in relation to, the participant[27], and the reasonable and necessary supports (if any) that will be funded under the NDIS[28], the date by which, or the circumstances in which, the Agency must reassess the plan under Division 4[29], and the management of the funding for supports under the plan[30] and the management of other aspects of the plan[31].
[27] See subsection 33(2)(a) of the National Disability Insurance Scheme Act 2013 (Cth).
[28] See subsection 33(2)(b) of the National Disability Insurance Scheme Act 2013 (Cth).
[29] See subsection 33(2)(c) of the National Disability Insurance Scheme Act 2013 (Cth).
[30] See subsection 33(2)(d) of the National Disability Insurance Scheme Act 2013 (Cth).
[31] See subsection 33(2)(e) of the National Disability Insurance Scheme Act 2013 (Cth).
Subsection 33(3) of the NDIS Act provides that the reasonable and necessary supports that will be funded or provided under the NDIS may, at the discretion of the CEO, be identified in a participant’s plan specifically or generally, whether by reference to a specified purpose or otherwise.
Subsection 33(4) of the NDIS Act provides that the CEO must decide whether or not to approve the statement of participant supports either within the period worked out in accordance with the National Disability Insurance Scheme Rules (the NDIS Rules) prescribed for the purposes of this paragraph (which may take account of section 36 (information and reports)) or if there are no such Rule(s) – as soon as reasonably practicable, including what is reasonably practicable having regard to section 36 (information and reports).
Subsection 33(5) of the NDIS Act sets out several other matters that the CEO must have regard to when deciding whether to approve a statement of participant supports. These other matters include the participant’s statement of goals and aspirations[32] as mentioned above, whether any relevant assessments have been conducted in relation to the participant[33], in reference to section 34 of the NDIS Act, be satisfied as to the reasonable and necessary supports that will be funded and the general supports that will be provided[34], apply the NDIS Rules (if any) made for the purposes of section 35 of the NDIS Act[35], have regard to the principle that it is desirable for a participant to manage their plan to the extent that they wish to do so[36], and finally have regard to the operation and effectiveness of any previous plans of the participant[37].
[32] See subsection 33(5)(a) of the National Disability Insurance Scheme Act 2013 (Cth).
[33] See subsection 33(5)(b) of the National Disability Insurance Scheme Act 2013 (Cth).
[34] See subsection 33(5)(c) of the National Disability Insurance Scheme Act 2013 (Cth).
[35] See subsection 33(2)(d) of the National Disability Insurance Scheme Act 2013 (Cth).
[36] See subsection 33(5)(e) of the National Disability Insurance Scheme Act 2013 (Cth).
[37] See subsection 33(5)(f) of the National Disability Insurance Scheme Act 2013 (Cth).
Subsection 33(6) of the NDIS Act provides to the extent that the funding for supports under a participant’s plan is managed by the Agency, the plan must provide that the supports are to be provided only by a registered NDIS provider.
A participant’s plan may include additional matters as prescribed in the NDIS Rules, and a participant’s statement of goals and aspirations need not be in writing, but must be recorded by the Agency in writing if it is prepared in a form other than writing[38].
[38] See subsection 33(8) of the National Disability Insurance Scheme Act 2013 (Cth).
Section 34 of the NDIS Act sets out the six mandatory criteria of which the CEO, or for present purposes, the Tribunal on review, must be satisfied in relation to the funding or provision of each support provided to a participant, to ensure that they are ‘reasonable and necessary’ to assist the person. This must be considered when a statement of participant supports is being developed. All supports a person requests must be assessed by the CEO of the Respondent, or for present purposes, against the reasonable and necessary criterion that is specified under section 34 of the NDIS Act.
To be considered reasonable and necessary for the purpose of making an assessment against the criteria in section 34 of the NDIS Act, all supports must firstly assist the participant to pursue his or her goals, objectives, and aspirations in the participant’s statement of goals and aspirations as required under subsection 34(1)(a) of the NDIS Act. Secondly, the support must assist the participant to undertake activities, as to facilitate the participant’s social and economic participation as required under subsection 34(1)(b) of the NDIS Act. Thirdly, the support must represent value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support as required under subsection 34(1)(c) of the NDIS Act. Fourthly, the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice as required under subsection 34(1)(d) of the NDIS Act. Fifthly, 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 as required under subsection 34(1)(e) of the NDIS Act. Sixthly, the support is most appropriately funded or provided through the NDIS, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service or support services offered as part of a universal service obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability as required under subsection 34(1)(f) of the NDIS Act.
The phrase ‘reasonable and necessary’ is not defined in the NDIS Act. In the case of National Disability Insurance Agency and WRMF[39] (WRMF), the Full Federal Court, comprising Flick, Mortimer and Banks-Smith JJ, observed that the phrase reasonable and necessary ‘connotes supports which meet a threshold which justifies – by reference to the context, objects and guiding principles of the [NDIS] Act and the facts of the case – the expenditure of public funds for that support, for a particular participant’. Further, reasonable and necessary is a composite phrase, and each limb of which must be given work to do[40].
[39] [2020] FCAFC 79.
[40] WRMF at [151].
In the case of McGarrigle v National Disability Insurance Agency[41] (McGarrigle) Mortimer J (as her Honour then was) explained the two limbs in the following terms:
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”.
[41] [2017] FCA 308; (2017) 252 FCR 121.
Determination of whether a support meets the reasonable and necessary criterion must be made on the basis of probative evidence[42].
[42] Ibid at [93].
Subsection 34(2) of the NDIS Act provides that the NDIS Rules may prescribe methods or criteria to be applied or matters to which the CEO is to have regard, in deciding whether he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
Section 35 of the NDIS Act permits NDIS Rules to be made about the content of a participant’s statement of supports. Subsection 35(1) of the NDIS Act provides that the NDIS Rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding, the reasonable and necessary supports or general supports that will be funded or provided under the NDIS[43], the reasonable and necessary supports or general supports that will not be funded under the NDIS[44], and the reasonable and necessary supports or general supports that will or will not be funded or provided under the NDIS for prescribed participants[45].
[43] See subsection 35(1)(a) of the National Disability Insurance Scheme Act 2013 (Cth).
[44] See subsection 35(1)(b) of the National Disability Insurance Scheme Act 2013 (Cth).
[45] See subsection 35(1)(c) of the National Disability Insurance Scheme Act 2013 (Cth).
Relevant to the determination of the present application are the National Disability Insurance Scheme (Support for Participants) Rules 2013 (the Support Rules). The Support Rules were made by the Minister on 18 June 2013 under subsection 209(1) of the NDIS Act. They commenced operation on 1 July 2013. The Support Rules are about the assessment and determination of the reasonable and necessary supports that will be funded for participants under the NDIS[46]. They supplement and inform the way in which the criteria in section 34 of the NDIS Act needs to be considered[47].
[46] See rule 1.1 of Part 1 to the National Disability Insurance Scheme (Support for Participants) Rules 2013 and JQJT and the National Disability Insurance Agency [2016] AATA 478 at [23].
[47] See WRMF at [223].
The Support Rules were discussed by Mortimer J (as her Honour then was) in the case of McGarrigle. Her Honour discussed, amongst other things, the purpose behind the making of the Support Rules and the types of supports that can be excluded from being included in a participant’s plan and funded under the NDIS. At [43] of her judgment, her Honour observed:
The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) to (7) constrain the rule-making power to preserve the federal characteristics of the NDIS. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Rules) are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.
The Agency has developed National Disability Insurance Scheme Operational Guidelines (the NDIS Guidelines). The NDIS Guidelines provide guidance to the Agency when they make NDIS decisions. The information contained in the NDIS Guidelines explain the matters that the Agency considers when they make NDIS decisions. The NDIS Guidelines set out some of the Agency’s operational information. They are based on the NDIS Act and the various NDIS Rules that have been made to supplement the NDIS Act.
Relevantly, the Agency has developed the National Disability Insurance Scheme – Operational Guidelines – Planning (the NDIS Planning Guidelines)[48]. The Planning Guidelines provide guidance to the Agency in relation to the preparation and reassessment of participant’s plan, such as the approval of a SOPS. They also explain the matters that the Agency must consider under the NDIS Act and the Support Rules when deciding to approve a SOPS in a participant’s plan.
[48] For a copy of the National Disability Insurance Scheme – Operational Guideline – Planning, see pages 278 to 351 of T32 of the T-documents.
THE APPLICANT’S EVIDENCE
The Applicant was asked questions about her request for psychological treatment. The Applicant said in her evidence that she has been receiving psychological treatment from Justin Harris (Mr Harris), for approximately 10 years. Furthermore, she said that during this time, she has worked with him to ameliorate the adverse effects caused by her mental health. The Applicant stated that she had found this therapy helpful. However, the expense of the therapy, and the inconsistent payment of Mr Harris from the Applicant’s Agency-managed plan, has prevented the Applicant from regularly engaging in therapy with Mr Harris.
Consequently, the Applicant said that this was counterproductive to her condition because she needs stability in order to be able to maintain a reasonable state of mental wellness. It is noted that the Applicant has presently been engaging in therapy because Mr Harris has waived his fees.
The Applicant said that the therapy she receives from Mr Harris is targeting re-establishing a relationship with her biological mother, through the therapist giving her strategies about how to relate and engage in appropriate relationships. The Applicant is not engaging with empirically supported psychotherapy, but rather speaks with Mr Harris about her relationship with her biological mother. The Applicant stated that, earlier in her treatment, she had previously engaged in psychotherapy to treat her BPD. The Applicant said that she needed five sessions of psychotherapy every week to get any benefit. She said in her evidence, that anything less than that would not achieve any beneficial result to the Applicant. The Tribunal notes that the Applicant’s request for psychological therapy – its frequency, intensity and duration – is consistent with the opinion given by Mr Harris in the report he prepared on 20 March 2023 in response to questions that were put to him by the Respondent’s then solicitor, Lino Kim[49].
[49] For a copy of the letter prepared by Justin Harris, psychologist on 20 March 2023, see page 421 of A17 of the Tender Bundle.
Ms Malqueen asked the Applicant to describe to the Tribunal her previous therapies or psychosocial treatments to which she responded that previously she had been funded under the NDIS for a group and individual therapy called Biological Behavioural Therapy (BBT). The Applicant stated that this was meant to occur once a week with individual therapy and group therapy. The Applicant argued that this treatment was not sufficient in treating her mental disorders. Furthermore, the Applicant said that she would not engage with treatment at all if she did not receive the requisite number of hours, she said she required. In short, the Applicant told the Tribunal that she needs extensive therapy and is not willing to negotiate any lesser hours as she put that this was inadequate and would not assist with her mental health functionality at all.
The Applicant was asked questions regarding her request for funding to cover the costs of working with script writing professionals. The Applicant said that she has been writing a script because she feels distracted from her problems and any stress inducing occurrences. Moreover, she stated that she is deeply moved by the journey she has undergone through the process of scriptwriting. Indeed, the Applicant said that this process has “saved her life”. In her evidence the Applicant also argued that the supports currently funded under the NDIS are not appropriate to meet her specific disability support needs. The Applicant said she had experienced inappropriate hugging and kissing by a support worker, which the Tribunal understands caused her trauma.
The Applicant stated that she had written a draft of a script during COVID-19. She said that she then asked someone she had gone to university with to read her script. Following this review of her script, the Agency started to fund scriptwriting. However, according to the Applicant, this funding ceased in 2020, despite it being beneficial to her mental health. The Applicant reported that she felt socially isolated following this support being removed, because this gave her a form of social interaction.
The Applicant was asked questions regarding her request for funding to travel and stay in Queensland to visit her biological mother. It is noted that the Applicant had met her biological mother in April 2023. The meeting in April 2023 was the first time the Applicant and her biological mother had met one another face-to-face. Prior to this meeting, the Applicant contacted her biological mother in writing in December 2022 and January 2023[50]. The Tribunal understands from the Applicant’s evidence that her biological mother’s husband paid for the Applicant’s flight, however, she paid for her own motel accommodation for three nights. The purpose of this trip was so that the Applicant could attend her biological mother’s 70th birthday that had been organised by the husband of the Applicant’s biological mother.
[50] See the statement of TDXT lodged with the Tribunal on 26 April 2023.
The Applicant said that during her meeting with her biological mother in April 2023, they did not address any substantive emotional issues, which she argued need resolving and thus should be funded under the NDIS as reasonable and necessary.
In her Statement that was lodged with the Tribunal on 26 April 2023, the Applicant stated that she proposed taking a second trip to Queensland in May 2023. The Applicant stated that the purpose of her taking a second trip to Queensland in May 2023 was in order for her to be able to spend a significant period of time with her biological mother discussing the issues around her adoption[51].
[51] Ibid.
The Applicant in her evidence put to the Tribunal that for her to travel and feel emotionally safe she required her support worker Kim See (Ms See) to travel with her. The Applicant has known her support worker since she was a young child and thus feels comfortable with her.
The Tribunal asked the Applicant how her request for funding to travel interstate to visit her biological mother was related to her disability. The Applicant responded that her psychological diagnoses were a direct result of her familial situation and thus needed to be resolved through engaging with her biological mother.
The Applicant was asked questions regarding her request for funding to cover the costs of medicinal oil and flower cannabis. The Applicant said in her evidence that this is the sole treatment available as it enables her to relax and, moreover, helps with her personality problems. Furthermore, she can sit for extended periods of time and write and overall feels at ease when using this substance. The Applicant noted that whilst Dr Ren prescribed this medicine to her, she could not afford it and as a result, according to the Applicant, she had needed to turn to nefarious means of obtaining this medicine, which she stated may endanger her due to it not being a medically approved substance and on a market that is illegal and unsafe. In short, the Applicant said in her evidence that by not funding this medication legally, her human rights were breached. This is because she believes she should be entitled to access these medicines and not have to pay because of their fundamental necessity to her treatment and assisting with her mental health problems.
The Applicant was asked questions about funding to cover the costs of gluten free food items to which she responded that she needed this funding because it was necessary as she has coeliac disease and thus this should be funded under the NDIS. This, the Applicant said, will ensure that she can eat healthily, rather than continue to lose weight due to not being able to tolerate certain foods.
The Applicant was asked questions about her request for funding to cover the costs of internet usage at her home at a cost of $780 per year. The Applicant said in her evidence that she was unable to afford this expense and does not currently have internet connected at her home because she cannot afford to pay for it. The Applicant put forward the argument in her evidence that this was a reasonable and necessary request because most of her medical appointments are done via the internet. She also said that this request was relevant to her impairments. It is noted, however, that at the hearing, I put the proposition to the Applicant that as the COVID-19 pandemic had largely come to an end, that she would now have access to face-to-face medical appointments. In response, the Applicant said that this was not the case as most of her medical appointments were online because her General Practitioner, Dr Bielawski, works mostly from home.
The Applicant was asked questions about her request for funding to cover the costs for the provision of legal services to assist her with any tenancy disputes between her and her landlord and other disputes between the Applicant and government agencies. An example of a dispute she has had with her landlord related to a water leak. The water leak issue started in October 2019, which was three months after the Applicant moved into her current place. The carpet in her room sustained water damage due to the water leak in the building. The landlord replaced the carpet with tiles. However, the Applicant stated this did not resolve the problem and there was also a mould infestation caused by the water damage. The Applicant said that due to the damage caused by the water leak, she had been forced to sleep in the kitchen of her unit. The Tribunal understands that the dispute between the Applicant and her landlord resulted in the Applicant commencing proceedings in the New South Wales Civil and Administrative Tribunal.
Ms Roberts, during cross-examination, referred the Applicant to the SOPS approved in the Applicant’s Plan by the Respondent on 17 November 2022. She asked the Applicant if she had used any of the funding in her Core Supports Budget to access the community for the purpose of social and recreational activities, and if so, whether these supports were helpful. The Applicant has commenced using these supports, and only recently has found them to be beneficial. The Applicant extended this point by way of reference to her support worker Ms See, who she finds to be a helpful support in her life. The Applicant referred to her previous support worker, Amber who the Applicant noted taught her how to cook gluten free food. However, this relationship was regarded as unhelpful and worrying to the Applicant because Amber acted inappropriately towards her, i.e. via kissing and hugging her inappropriately and non-consensually. In relation to having the support worker Ms See, the Applicant said that Ms See’s fees were not paid as expected by the NDIA and this caused some conflict between the Applicant and Ms See.
The Applicant was asked questions by Ms Roberts about the Capacity Building Supports that the Respondent approved in the Applicant’s Plan on 17 November 2022. In particular, Ms Roberts asked the Applicant questions regarding the three sections in the Applicant’s Capacity Building Supports Budget. The first section the Applicant was asked questions about was in regard to the financial intermediary section. The Applicant said in response that this was not a support she has used and, moreover, nor was she interested in using. Regarding the second section of the Applicant’s Capacity Building Supports Budget, namely 36 hours of behavioural intervention support and 36 hours of a behavioural management plan and training and behavioural management strategies, with a report to then be provided to the Agency, the Applicant took a combative position, insofar as she stressed that the funding was not being permitted to be used in the way that she would like it to be used. For example, she said that the only way she would get any benefit from this particular funding was that if it were used for screenwriting as this, according to the Applicant is the only way that it would be beneficial and helpful to her mental wellbeing. Finally, in relation to the third section of the Applicant’s Capacity Building Supports Budget, namely support co-ordination, the Applicant was asked by Ms Roberts whether or not Ms See is the person she would like to perform this function. The Applicant said in her evidence that Ms See is the only support worker, and indeed is not a coordinator.
The Applicant was asked by Ms Roberts to give further details about her relationship with Mr Harris, including how they met. She responded in her evidence that they met in around 2013, whilst she was living in social housing, she previously occupied following her return from the United States. Mr Harris had a practice on the grounds where she was living. The Applicant has had periodic breaks from engaging in therapy. However, the Applicant noted that Mr Harris is a specialist psychoanalyst and that due to this specialised form of therapy, she needs multiple meetings per week to gain a benefit in what she noted is a safe and non-judgmental space or environment. The Applicant noted that she was referred to Mr Harris by a doctor. It is not entirely clear how frequently the Applicant saw Mr Harris in either 2012 or 2013. It does appear, however, that over the course of the last decade, she saw Mr Harris on numerous occasions, under the health care plans that are covered by Medicare. When the Applicant did not have the funds to see Mr Harris, she had some sessions with counsellors, who she did not find helpful.
The Applicant in her evidence raised with the Tribunal that she was unsure when she saw Mr Harris next, but it may have been in 2018 (approximately five years ago). Further, she put to the Tribunal that, according to her interpretation of events, the Agency had agreed to fund both individual and group sessions for a period of 12 months, using Dialectal Behavioural Therapy (DBT). However, she states that the Agency only paid for three months of group sessions. In turn, this made the therapy unhelpful to the Applicant because there was inadequate time for goal setting and reinforcing helpful behaviours, whilst also managing unhelpful and destructive methods of coping.
The Applicant was asked by Ms Roberts to identify the name of the person who had helped her with her scriptwriting. The Applicant said that the person who had assisted her was called Jane Sharman (Ms Sharman). The Applicant noted that she had worked with Ms Sharman in 2022. However, this had ceased due to a difficulty with funding. The Applicant said that the Agency refused to pay Ms Sharma unless she wrote the word ‘support worker’ on the invoice.
DR YAN REN
Dr Ren confirmed in her evidence that she was the Applicant’s treating medical practitioner for the purpose of prescribing medicinal cannabis to treat the Applicant’s symptoms of anxiety and sleeping issues and her BPD. Dr Ren noted that she had seen the Applicant for approximately two years and her last consultation with the Applicant was on 1 April 2022 but reiterated that the Applicant had not come back to see her for follow up treatment.
Dr Ren said in her evidence that the Applicant was initially prescribed dried flowers. Dr Ren also offered the Applicant oil cannabis, however, was unsure whether the Applicant commenced taking this medicine. Dr Ren said that the Applicant had not followed up with her for over 12 months and thus does not have the capacity to comment on the medical situation of the Applicant in relation to dried flower and oil cannabis. Furthermore, Dr Ren said that the Applicant was enrolled in a clinic trial at the University of Sydney (USYD) where she was able to obtain medicinal cannabis at a much-reduced cost. Dr Ren said that she prescribed the Applicant some medicinal cannabis oil, but she said that she did not have enough information about whether the Applicant had continued to use it. This was because there was no follow up appointment with her by the Applicant.
The Applicant’s last consultation with Dr Ren did not address her previous use of the cannabis oil as the Applicant’s sole purpose, according to Dr Ren, was to try and get a letter of recommendation for the Agency to fund her cannabis use.
Dr Ren said in her evidence that, despite prescribing the Applicant these medications, there is only anecdotal evidence of its clinical efficacy. Dr Ren further stated that more research is necessary to consolidate its clinical effectiveness.
Dr Ren said in her evidence that she was not in a position to give her medical opinion about the Applicant’s current clinical medical status. Furthermore, with reference to her report of 1 April 2022[52], Dr Ren stated that the Applicant had not been able to continue her treatment for the last few months that she saw Dr Ren due to financial pressures.
[52] See A9 of the Tender Bundle.
Dr Ren said, in her evidence, when asked by Ms Roberts, that prescribed oil and flower cannabis are clinical medications. In particular, Dr Ren noted that ANTG Rocky is a dried flower that has THC in it and has a very strong percentage of purity. Dr Ren noted further that there is another flower, namely Althea Henik which has a lower concentrate purity at approximately 18 percent which is substantially lower than the ANTG Rocky flower.
Dr Ren said in her evidence that there is a prescribing limit and dispensing limit for these cannabis flower medications of 60 grams which also carries prescribing restrictions. For example, a pharmacist must record the exact amount of flower prescribed and cannot alter the limit without a discussion with the prescribing doctor.
Dr Ren spoke in her evidence about medicinal cannabis oils, namely Tilray oil which she stated is a balanced oil consisting of both THC and CBD. Following this, Dr Ren made mention of Little Green Pharma oil which also has THC and CBD, however it carries more THC than the Tilray oil. Finally, Dr Ren identified a third cannabis oil, namely, Cannatrek Amber oil with a high concentrate of CBD and a small amount of THC.
Despite having written prescriptions and having enrolled the Applicant in the clinical trial at USYD, Dr Ren said she was unsure whether the Applicant filled her prescriptions, nor whether the Applicant actually participated in the clinical trial at USYD.
Dr Ren was asked by Ms Roberts about the peer review article that she referred to regarding BPD and cannabis in her report of 1 April 2022[53]. She agreed in her evidence that the peer review article she was referring to concluded that more research was necessary in order to determine the clinical efficacy of cannabis in the treatment of BPD[54].
[53] See A9 of the Tender Bundle.
[54] The article Dr Ren refers to and identifies in her report of 1 April 2022 and mentioned in her oral evidence is at A1 of the Tender Bundle.
Finally, Dr Ren confirmed in her evidence in response to a question from Ms Roberts that the prescribing of medicinal cannabis was not a medication listed on the Pharmaceutical Benefits Scheme.
DR ALLISON BIELAWSKI
The Applicant asked Dr Bielawski questions about how screen writing could potentially improve the Applicant’s mental health. Dr Bielawski said in her evidence that screen writing can help with stabilising the Applicant because it enables her to have a sense of purpose and also to interact with others. Moreover, Dr Bielawski said that this form of work provides the Applicant with a safe space to engage with people. In particular, the writing, according to Dr Bielawski is overall helpful for the Applicant in managing her anxiety, mood and distressing situations. In other words, writing assists the Applicant to better process her emotions.
The Applicant asked Dr Bielawski in regard to the significance and weight of appropriateness of supporting the Applicant with meeting her biological mother again. Dr Bielawski acknowledged in her evidence that it is incredibly difficult for a person who was adopted to reconnect with a biological parent, and, due to this difficulty, recommended that the Applicant would need supports for this process to occur in a helpful and appropriate way. She further stated that, due to the Applicant’s severe mental health, (including BPD) it would be necessary for the Applicant to have a level of funded support from the Agency in this regard. For example, the Applicant can appear to be aggressive when interacting with others which causes people to respond to her negatively and thus limit their interactions with her.
The Applicant asked Dr Bielawski for her opinion in regard to the impact of her mental impairments on her coeliac disease and gluten intolerances. Dr Bielawski said in her evidence that, whilst she has read some data about the connection between coeliac disease, gluten intolerance and mental health disorders, she confirmed that she is not an expert in this area and thus could not provide any further comment.
Ms Roberts asked Dr Bielawski questions regarding the frequency that she saw the Applicant. Dr Bielawski said in her evidence that the number of times are varied and are now in-person appointments, as the Applicant does not have a phone nor does she have internet access at her home.
With reference to Dr Bielawski’s report of 6 April 2023[55], Ms Roberts asked Dr Bielawski whether she considered herself to be the only expert for the Applicant to discuss the issues regarding contact between her and her biological mother to which Dr Bielawski responded yes. She noted, however, that she was aware the Applicant had been seeking informal support from Mr Harris, but was unable to pay for actual sessions.
[55] See the email received from Mitch Malqueen on the morning of the Tribunal hearing on 2 May 2023.
Again, with reference to her report of 6 April 2023[56], Ms Roberts asked Dr Bielawski to extend on her comment regarding the Applicant’s social interactions with the editor. Dr Bielawski said in her evidence that, to her knowledge, this was the only person the Applicant had any regular and positive social interactions with. Moreover, Dr Bielawski said that the Applicant, to her knowledge, did not have any friendships.
[56] Ibid.
Ms Roberts asked Dr Bielawski to explain the training a person working with someone with BPD would need to undertake. Dr Bielawski said in her evidence that she had no knowledge of the exact training support workers undertake but was of the view that it must be specific to be able to deal with and manage persons with BPD. It was noted by Dr Bielawski that, due to the severity and specific problems that are linked with BPD, it is necessary for support workers in this area to have regular debriefing sessions that even medical clinicians undertake when managing difficult mental health problems with their patients.
Ms Roberts asked Dr Bielawski about Mr Harris’ training in relation to his capacity to treat the Applicant’s BPD. Dr Bielawski informed the Tribunal that Mr Harris is a registered clinical psychologist and thus would have the specific skill set and experience to treat the Applicant.
Ms Roberts asked Dr Bielawski about the frequency of psychological sessions for the Applicant and the appropriateness of undertaking an annual review. Dr Bielawski said in her evidence that she would be guided by input from a psychologist or a psychiatrist regarding the hours of therapy that the Applicant should have in order to treat her BPD. However, Dr Bielawski did note that it was in her opinion that the Applicant would benefit from more hours of therapy because of the different levels and strategies needed to operate within the boundaries of day-to-day functioning and then also to examine the Applicant’s complex familial situation which included the Applicant having been adopted. Overall, Dr Bielawski was of the view that, due to the Applicant’s complex mental health presentations, she should receive more therapy sessions to be reviewed annually.
Ms Roberts referred Dr Bielawski to the report of Dr Tandon[57] where he noted that the Applicant would not benefit from psycho-pharmacological treatment and thus would benefit from ongoing psychotherapy treatment as put forward by Dr Bielawski in her oral evidence.
[57] See R1 of the Tender Bundle.
Ms Roberts asked Dr Bielawski whether she had any information about Ms See to which she responded that she did not recall having any knowledge regarding this person. However, she noted, in her evidence, that she supported this person travelling with the Applicant to Queensland to see her biological mother as it is an important dynamic that will help the meeting run successfully.
Ms Roberts asked Dr Bielawski whether she was aware that the Applicant had sought treatment from Dr Ren. Dr Bielawski said in her evidence that she was aware of the Applicant seeking treatment from Dr Ren and that she had received reports from Dr Ren regarding that treatment. She also said that she was not aware of any other medical practitioner providing the Applicant with similar treatment. Furthermore, Dr Bielawski said that she does not prescribe medicinal cannabis to patients.
Ms Roberts asked Dr Bielawski questions about the Applicant’s coeliac disease. In particular, Ms Roberts asked Dr Bielawski whether the Applicant had seen a specialist in this area to which she responded yes and qualified that this was in order for the Applicant to obtain this diagnosis. Dr Bielawski noted in her evidence that, following a coeliac diagnosis from a specialist, the patient is usually managed by their General Practitioner. Furthermore, Dr Bielawski said that she would only refer a patient to a specialist if there were problematic symptoms. These checks occur approximately every two years where the coeliac antibodies are measured, and this should show whether or not someone has been eating gluten where their antibodies are high. It is noted for the purpose of the Applicant’s coeliac disease, and the necessity of seeing a specialist again, that her results have been negative and thus, in Dr Bielawski’s view, there is no need for her to see the specialist again.
Ms Roberts pointed Dr Bielawski to the reports she prepared on 6 April 2023[58] and 21 September 2022[59] with reference to the Applicant’s request to self-manage the funding regarding the supports in her Plan. Dr Bielawski noted in her evidence that whilst in general she would prefer a participant’s plan to be managed by the Agency (due to the complexity of the NDIA system), she was nonetheless of the view that the Applicant did indeed have the capacity to self-manage the funding for supports under her Plan. This opinion was based on Dr Bielawski’s observations of the Applicant and how she currently manages her finances. However, Dr Bielawski noted some reservation, once again due to the nuances required for understanding the NDIS and how it functions and funds particular supports to participants.
[58] See the email received from Mitch Malqueen on the morning of the Tribunal hearing on 2 May 2023.
[59] See item 3 of A16 of the Tender Bundle.
Ms Roberts asked Dr Bielawski for her recommendation regarding the scriptwriting course that the Applicant was requesting be funded under the NDIS. Dr Bielawski stated that scriptwriting was very valuable to the Applicant’s overall mental wellbeing and that there was a direct nexus between her mental state and capacity in relation to her mental functionality and mood.
Returning to the Applicant’s request for funding in relation to medicinal oil and flower cannabis, Ms Roberts asked Dr Bielawski for her opinion on the usefulness of this medication. She noted that she does not prescribe this medication but was able to manage people who found this treatment helpful. In her answer, Dr Bielawski stated that this was a very expensive medication, and one that did not always work. However, she noted that the medication could be beneficial to a small group of people, who responded well to such treatment. Dr Bielawski also made clear that her opinion was not based on empirical data and instead was through her own observations. Furthermore, Dr Bielawski stated that she was not aware of any empirical data regarding this treatment being used for BPD. However, gave an opinion that it may be helpful in treating insomnia and anxiety. This opinion, however, was based on anecdotal evidence.
Finally, Ms Roberts asked Dr Bielawski about whether medicinal cannabis was a medication, to which she responded that it was and consolidated this by referring to this medication being available from a pharmacist only through a medical prescription.
DISCUSSION
The Tribunal now proposes to deal with each of the Applicant’s requests.
Provision of legal services
The Applicant has requested funding to cover the costs of provision of legal services. This request is based on the Applicant’s view that it is a basic human right to have access to legal services even whilst banned due to poor behaviour. It is argued by the Applicant that essentially her disability causes her to act in such ways that minimises her chance of receiving what she believes is a fundamental human right. Thus, overall, the Applicant is of the view that her condition prohibits her from engaging in a balanced way with what is a mainstream legal service. To conclude, the Applicant gives the example that, in her view, it is her right to receive legal funding under the NDIS to challenge decisions made by her landlord and other government departments. The Applicant does not specify the amount she believes she is entitled to receive by way of funding and indeed argues that the funding should be ‘as needed’.
The Tribunal has taken note of the evidence of the Applicant which confirms that the Applicant has already received legal assistance from a a local Legal Centre in relation to her tenancy dispute with her landlord, and also from Legal Aid in relation to her application before the Tribunal against the Agency. Furthermore, the Tribunal has taken note of the evidence of the Applicant that she received non-legal advocacy services from Ability Rights Centre to assist her at the substantive hearing.
The Tribunal thus concludes that the request for the provision of legal services is not considered to be a reasonable and necessary support for the purpose of section 34 of the NDIS Act. The Tribunal has also concluded that this support is neither appropriately funded or provided through the NDIS and it is apparent that it can be provided to the Applicant through other general systems of service delivery or support services for the purpose of subsection 34(1)(f) of the NDIS Act.
Psychological therapy support
The Applicant has requested funding to cover the costs of psychological therapy for three one-hour weekly sessions with Mr Harris (psychologist) over a five-year period at a cost of $214.52 per hour which adds up to $30,890.88 over a period of 48 weeks.
The Respondent accepts that the Applicant should be funded for two hours of psychological therapy per week, for a period of one year with such therapy to be reviewed and possibly extended at the end of that period. Moreover, the Respondent proposes that the Applicant’s funding for psychology support should be Plan, rather than Agency, managed (for the purpose of the Applicant engaging Mr Harris, who is unable to receive payment under an Agency-managed plan).
The Tribunal notes that in his report of 20 March 2023, Mr Harris recommended the following:
An assessment of [TXTD]’s needs suggest multiple sessions per week (a minimum of three) over several years (a minimum of five);
[TXTD] requires periodic assessment with a psychiatrist for confirmation diagnostically and to establish whether medication may be presently helpful;
The intensity of her treatment was likely to reduce following improvement incumbent on longer term adherence; and
That in relation to the time period needed for treatment, Mr Harris opined that It is difficult to determine a time period, due to individual differences and highly subjective dynamics. However, several years of a reliable and helpful relationship may induce healthy development.
The Tribunal has taken note of the evidence given at the hearing by Dr Bielawski, namely, that she had spoken with Mr Harris about the treatment he had provided the Applicant with (in the context of obtaining information from and providing updates to him). The Tribunal has taken note that Dr Bielawski had made a formal referral to Mr Harris in 2021, however, she also noted that this did not result in Mr Harris providing treatment to the Applicant. Thus, Dr Bielawski indicated that her view was that formal treatment may not have occurred due to the Applicant not being able to fund this service.
The Tribunal has taken note of the evidence given at the hearing by Dr Bielawski where she supported the idea that a “checking-in point” for therapy of approximately 12 months would be appropriate. Her suggestion, moreover, was that the Applicant’s treatment should be “at least an hour” or “at least one to two hours a week”. However, she qualified this by noting that she would have regard to psychiatric or psychological knowledge as she stated she was not an expert in this field.
The Tribunal has considered the views as set out above of both Mr Harris and Dr Bielawski. The Tribunal has formed the view that, due to insufficient empirical and expert evidence (which is noted by Mr Harris with his reference to the subjectiveness of the model) regarding the third hour being funded under the NDIS, it is only reasonable and necessary to fund two hours per week to be reassessed on an annual basis.
Thus, the Tribunal is not satisfied that the support requested by the Applicant is reasonable and necessary within the meaning of section 34 of the NDIS Act. The Tribunal is however satisfied that two weekly one-hour sessions with Mr Harris is, for the purpose of section 34 of the NDIS Act, reasonable and necessary.
Scriptwriting support
The Applicant has requested funding to cover the costs of professional script writers in the amount of $4,668 per annum. This consists of:
(a)A writers guild membership;
(b)Entry fees for various competitions;
(c)Funding for attendance at ticketed events;
(d)Membership of Arts Law (a not-for-profit community legal centre that provides low-cost legal assistance to artists, under a subscription model);
(e)10 weeks of screen writing group workshops at a total cost of $1105.03 (per the attachment titled Annexure K to the Applicant’s 10 May 2023 Statement, the specific workshop the Applicant wishes to take part in appears to be one conducted by the Screenplay Workshop, based in Texas in the United States, which is conducted over Zoom); and
(f)individualised consultation at a cost of $2148 (which, per the attachment marked Annexure J to the 10 May 2023 Statement, appears to be a consultation with Jill Chamberlain, who appears to run the Screenplay Workshop that the Applicant wishes to participate in, from Texas in the United States).
The Applicant submitted that, because she has difficulties with social relationships, script writing offers her an opportunity to engage with others in a meaningful manner without being treated like a ‘person with a disability’. The Applicant noted, for example, that she derives no value or enjoyment in meeting other people to ‘have a chat or coffee’, leaving her feeling uncomfortable with meeting up with someone. Moreover, the Applicant stated that the lack of connection she has with support workers leads them to engaging with her inappropriately as they ‘do not know anything about [the Applicant’s] disability’. In short, the Applicant takes the stance that scriptwriting support would allow her to feel valued as an individual and believes that her relationships will improve were she to engage with people who have similar interests to her.
The Tribunal has taken note of the Applicant’s position that she believes this support to be reasonable and necessary. However, despite this view, the Tribunal takes a different stance, namely that this support is neither reasonable nor necessary, because this is an everyday expense which does not relate directly to her disability, and there is no empirical data before the Tribunal to support a finding that this would be effective and beneficial for the Applicant within the meaning of subsection 34(1)(d) of the NDIS Act.
Transport and accommodation costs to visit biological mother in Queensland
The Applicant has requested funding to cover the costs of her transport and accommodation costs to visit her biological mother in Queensland.
The Applicant submitted that she needs to spend time with her biological mother in order to establish a connection and resolve underlying emotional issues. The Applicant submitted that there was a substantive benefit to her mental health when she met her biological mother previously in April 2023. She also submitted that the adoption agency recommended that they not stay together and thus requested the Agency to fund accommodation as well as the transport costs. The Applicant also submitted that she needs Ms See to accompany her because of her adverse mental health conditions.
The Tribunal has taken note of the Respondent’s submission that they are prepared to fund the costs of Ms See and already paid her. However, the Respondent is not prepared to subsidise the Applicant’s transport and accommodation on the basis that they do not relate specifically to the Applicant’s disability.
The Tribunal has taken note of the evidence given by the Applicant at the hearing that the initial trip was to attend her biological mother’s birthday. The second trip was in order for her to be able to spend a significant period of time with her biological mother discussing the issues around her adoption. The Tribunal thus finds that this support is not reasonable and necessary within the meaning of section 34 of the NDIS Act in that it does not relate specifically to her disability for the purpose of rule 5.1(b) of the Support Rules.
Medicinal oil and flower cannabis
The Applicant has requested funding for the costs of medicinal oil and flower cannabis at an annual cost of $24,960 or alternatively, to fund her to participate in a clinical trial for an amount not specified.
The Applicant submitted that these medicines had helped her manage her BPD and that she would not use mainstream medical treatments because of her fear that they may not work and subsequently place her at risk. The Applicant submitted that she could join a five-year clinical trial that would ascertain the efficacy of these treatments instead of having this medication funded under the NDIS.
The Applicant has taken note of the evidence given at the hearing by Dr Ren in that she last had a consultation with the Applicant during or prior to April 2022. The Tribunal has taken note of the evidence given at the hearing by Dr Ren that she was not in a position to say what was in the Applicant’s clinical best interests at the time of the hearing. The Tribunal has also taken note of the evidence given at the hearing by both Dr Ren and Dr Bielawski, namely that prescription cannabis items are regarded as medications.
The Tribunal finds that it would not be appropriate to fund medicinal oil and flower cannabis because this a pharmaceutical medication[60] having regard to the Support Rules at Schedule 1, 7.6(a) which state (the Agency) will not be responsible for supports related to mental health that are clinical in nature, and, moreover, the Tribunal, cannot on the evidence be satisfied that this support meets the criterion of subsection 34(1)(d) of the NDIS Act.
[60] The Operational Guidelines specifically lists medicinal cannabis as a product that the Agency does not fund: <
Gluten free food diet items
The Applicant has requested funding to cover the costs of a gluten free diet for the amount of $4760.00 per annum.
The Applicant submitted that, due to costs of gluten free food diet items, she is not able to afford her dietary needs, and, in this regard, it has had an adverse effect on her BPD and her mental health. The Applicant submitted that she does not have the capacity to cook well and also that she trialled cooking gluten free food items with a support worker which did not work out due to relationship issues. In any case, she argued that the food she cooked was inedible.
The Tribunal has taken note of the evidence given by Dr Bielawski at the hearing that the Applicant has managed her coeliac disease well since diagnosis, and that this had been substantiated via annual testing.
In any event, with regard to the evidence, it is clear that gluten-free food relates to day-to-day living costs and thus does not relate to the psychosocial disability. Thus the Tribunal finds that funding for this support is not reasonable and necessary within the meaning of section 34 of the NDIS Act on the basis that it relates to day-to-day living costs for the purpose rule 5.1(d) of the Support Rules.
Internet usage at the Applicant’s home
The Applicant has requested funding for the costs of internet usage at her home at a cost of $780.00 per annum.
The Applicant submitted that without this support she is isolated and also, she needs these services in order for her to be able to access medical appointments and contacting support services. The Applicant also submitted that due to her incapacity to relate to people due to her BPD that this is a reasonable and necessary support to enable social contact and also her professional work such as scriptwriting.
Again, the Tribunal finds on the evidence that this request is not reasonable and necessary within the meaning of section 34 of the NDIS Act on the basis that it relates to day-to-day living costs for the purpose of rule 5.1(d) of the Support Rules.
Request for the funding for supports to be self-managed
The Applicant has requested to self-manage her Plan.
The Applicant submitted that one of the underpinning principles of the NDIS is to enable people with disabilities to exercise choice and control, which builds on their goals, planning and the delivery of their supports.
The Applicant submitted that the default position of the NDIS is that participants should manage the supports delivered through the funding in their plan themselves, in an arrangement referred to as self-management.
The Applicant submitted that the National Disability Insurance Scheme (Plan Management) Rules 2013 (the Plan Management Rules) deal almost exclusively with the exceptions to this assumption. The Applicant submitted that the only relevant condition, under these rules, to deny the Applicants request to self-manage her plan is if to do so would pose an unreasonable risk to the participant.
The Applicant submitted that none of the qualifying risks set out in rule 3.8 of the Plan Management Rules apply to her. The Applicant submitted that this is because she lives in rental accommodation and is entirely responsible for the management of all expenses and budgeting without any sort of supervision. She is demonstratively responsible for a range of complex decisions about her life and there is no evidence before the Tribunal that she is at risk of undue influence or exploitation.
Finally, the Applicant submitted that even if the Tribunal considers the Respondent’s position preferrable, the Plan Management Rules create a positive obligation on the Respondent, at rules 3.8(f) and 3.9, to take into consideration positive steps to mitigate the perceived risk.
The Tribunal has had regard to the internal review decision made on 7 October 2021 and the Applicant’s oral evidence given at hearing and final written submissions. With regard to the Applicant’s request for self-management of her plan, the internal review decision highlighted the existence of a potential risk for overutilisation suggesting that the Applicant had previously mismanaged her plan: “Your plan is for 12 month [sic] and has been set up the way it is due to previous overutilisation’. As noted above at paragraph 53 of these reasons, when asked under cross-examination about her Capacity Building Supports Budget - financial intermediary section, the Applicant responded that this was not a support she has used and, more importantly, nor was she interested in using. Finally, when questioned on the behavioural management support section of her Capacity Building Supports Budget, the Applicant became combative and disliked the limited control she had over how the funding was being utilised. In particular, the Applicant was adamant that the only support that would be beneficial to her was screenwriting, and this was not being adequately funded.
After having regard to the above, namely:
(a) The Applicant’s previous mismanagement of the funds in her Plan;
(b) Her unwillingness to engage with a Plan Manager to assist her in the management of the funding of supports under her Plan; and
(c) Her intention to use the funds in a manner not prescribed in her Plan
The Tribunal is of the view that, to change the plan structure to self-management ,poses an unreasonable risk to the Applicant, and therefore the Tribunal does not intend to change the Plan to one of self-management.
DECISION
Pursuant to subsection 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and remits the matter to the Chief Executive Officer of the National Disability Insurance Agency with the direction that funding be approved in a statement of participants support in the Applicant’s Plan over a 12-month period for two hours of psychology support per week with the plan to be plan managed.
| I certify that the preceding 122 (one hundred and twenty-two) paragraphs are a true copy of the reasons for the decision herein of Member P Smith |
............................[SGD]............................................
Associate
Dated: 22 December 2023
| Date(s) of hearing: | 2 and 3 May 2023 |
| Date final submissions received: | 29 October 2023 |
| Advocate for the Applicant: | Ms M Malqueen, Disability Advocate |
| Counsel for the Respondent: | Ms C Roberts |
| Solicitors for the Respondent: | Mr T Aviram, Clayton Utz |
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