TYKL and National Disability Insurance Agency - [2021] AATA 135

TYKL and National Disability Insurance Agency [2021] AATA 135 (2 February 2021)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL  )
  )     No: 2019/0104
NATIONAL DISABILITY INSURANCE SCHEME DIVISION     )
Re: TYKL
Applicant

And: National Disability Insurance Agency
Respondent
DIRECTION
TRIBUNAL: Member Buxton
DATE OF CORRIGENDUM: 15 March 2021
PLACE: Brisbane

The Tribunal DIRECTS the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of Paragraph 12 of the Decision dated 2 February 2021 accordingly:

Delete the text reading “…the plan review date is to be fixed at 12 months from the date of this decision.”; and

Insert the following “…the plan review date is to remain at 21 May 2021.”
.......................[SGD]........................
Member Buxton

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number:2019/0104
Re:TYKL
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member Buxton
Date:2 February 2021
Place:Brisbane

The decision under review is set aside. The matter is remitted to the Respondent with a direction that the “statement of participant supports” in the plan dated 9 November 2018 is to include sufficient funding to enable the identification, training and qualification of an appropriate assistance dog for the Applicant, in accordance with the quote provided by K9 Tales in December 2019, and the plan review date is to remain at 21 May 2021.
........................................................................
Member Buxton
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – application for review of decision to approve statement of supports in participant plan – whether supports are reasonable and necessary – assistance dog – decision under review set aside and remitted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Disability Discrimination Act 1992 (Cth)
Guide, Hearing and Assistance Dogs Act 2009 (Qld)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF [2020] FCACF 79
Secondary Materials
Explanatory Memorandum, National Disability Insurance Scheme Bill 2012 (Cth)
National Disability Insurance Scheme Operational Guideline – Assistance Animals
REASONS FOR DECISION
Member Buxton
2 February 2021
INTRODUCTION

On 2 January 2019, the Applicant applied to the Tribunal[1], pursuant to section 103 of the National Disability Insurance Scheme Act 2013 (“the NDIS Act”), for review of a decision of the National Disability Insurance Agency (“the NDIA”) dated 3 December 2018.[2] In broad terms, the decision concerned the NDIA’s refusal to include various funded supports.
[1] Exhibit 1, T-Documents, T1, pp. 1-3.
[2] Exhibit 1, T-Documents, T2, pp. 4-11.
The Applicant was born on 19 November 1957 and became a participant of the NDIS on 6 September 2016.[3] Her primary condition is Lambert-Eaton Myasthenia Gravis (LEMS), a rare autoimmune disorder characterised by fluctuating muscle weakness, loss of tendon reflexes, and autonomic dysfunction with muscle weakness, which can severely limit mobility.[4] In addition to LEMS, the Applicant has experienced…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading TYKL and National Disability Insurance Agency

Details

AGLC: TYKL and National Disability Insurance Agency [2021] AATA 135
Case: [2021] AATA 135
Decision Date: 2 February 2021

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the National Disability Insurance Agency (NDIA) to refuse to approve the statement of supports in a participant's plan, specifically regarding funding for an assistance dog. The applicant sought to have an assistance dog included in her plan to assist with her goals of independence in the home and community, and to facilitate social engagement.

The central legal issue before the Tribunal was whether the NDIA's refusal to fund an assistance dog was correct, and more specifically, whether the NDIA was entitled to require the dog to be identified, trained, and qualified before assessing it as a reasonable and necessary support. The applicant argued that the NDIA's approach was inconsistent with the NDIS Act and the rights of participants to determine their own goals and nominate supports.

The Tribunal found that the applicant suffered from chronic pain, reduced mobility, and a mental health condition impacting her confidence, and that an assistance dog would significantly benefit her physical and psychosocial well-being. The Tribunal was satisfied that the applicant had a proven history of benefiting from an assistance dog and had made substantial efforts to identify and secure a suitable animal. Crucially, the Tribunal determined that the NDIA's contention that an assistance dog must be fully trained and qualified before it could be assessed for funding was not supported by the NDIS Act. The Tribunal reasoned that the identification, training, and qualification of an assistance dog were necessary steps in the process of obtaining such a support and were not precluded by the statutory scheme.

Consequently, the Tribunal set aside the NDIA's decision and remitted the matter for reconsideration. The Tribunal was not satisfied that the NDIS Act contained the limitation argued by the NDIA regarding the funding mechanism for an assistance dog.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Tribunal will consider the facts relevant to the issue before the Tribunal within the relevant legislative framework of the scheme.EVIDENCE The Applicant gave sworn evidence at the hearing. The Applicant discussed the various goals in her participant’s plan. Most relevant to this review are the Applicant’s goal of having independence in the home and community, having access to the community so that friendships and activities of interest can be enjoyed and having an assistance dog live with her in the home. In terms of her access and independence to the community, the Applicant stated that she considered this goal would be assisted by the support of an assistance dog.[14] The Applicant stated that she is involved in the provision of welfare services through a church group and that she is currently completing a course in domestic violence support. The Applicant identified some limitations of having a carer present during her welfare activities, including that the reluctance of people wanting to speak with her while another person is present the and the need for releases to be given in respect of the assistance she gives. The Applicant advised that, if she had an assistance dog, she would be able to access these activities without the presence of a carer and suggested that an assistance dog would eliminate the limitations she had mentioned.[14] Transcript Day 1, pp. 21-22. Regarding the Applicant’s goal of having independence in the home, the Applicant stated that an assistance dog would provide an alert system when she experiences falls that occur as a result of her medical condition.[15] The Applicant stated that there was a plan in place for her assistance dog to be trained to perform these alerts. [15] Transcript Day 1, pp. 20-21. The Applicant has a long-term goal of having an assistance dog in her home. The Applicant stated that she would like a new assistance dog to be able to complete the tasks previously performed by her former assistance dog, a Hungarian Vizsla named Zac.[16] She said that he would perform various tasks for her such as picking things up for the Applicant, putting on and taking off her shoes, taking covers off and on the bed, recognising when she was experiencing effects associated with her medical condition and alerting people appropriately, fetching her a water bottle when dehydrated, switching lights on and off and loading the washing machine.[17] The Applicant’s gave evidence that she would benefit from an assistance dog to support the Applicant in various physical activities and to perform tasks that she must currently rely on to be undertaken by a carer. She stated that she frequently drops items and an assistance dog could retrieve these for her without her having to burden carers, and without the need for carers to be present.[16] Transcript Day 1, p. 37.[17] Transcript Day 1, pp. 38-41. During cross-examination, Counsel for the Respondent, questioned whether Ms Wegener of K9 Tales had discussed with the Applicant how an assistance dog may be able to assist with psychiatric needs in terms of building confidence and assisting with the mental and emotional aspect of functioning throughout the day. The Applicant confirmed she had.[18] The Applicant advised that she has met regularly with the proposed assistance dog, Sparrow, online and on the phone.[19] The Applicant accepted, during cross-examination, that it could not be said for certain that Sparrow would be able to do all of the things that the Applicant would like her to do. However, the Applicant noted that she had been provided with videos of Sparrow already performing some of the required tasks. The Applicant stated that Ms Wegener had broached the issue of a dog not being able to complete assistance training. When asked about K9 Tales’ next course of action in the event Sparrow is unable to complete the required training, the Applicant stated that she was under the impression that there are other dogs in training that might be assigned to her instead, but deferred to Ms Wegener to provide further information on this issue.[20] [18] Transcript Day 1, p. 49.[19] Transcript Day 1, p. 51.[20] Transcript Day 1, pp. 52-53.

Decision

Reasons for decision

The Respondent submitted that, even after an assistance dog was identified, trained and qualified it would still need to be “assessed” by the Respondent as a reasonable and necessary support before funding were provided. It is not clear how such a process is consistent with the rights of a participant in the scheme to determine their goals and nominate reasonable and necessary supports to assist in realising those goals. Other supports that are funded before provision (home supports, capacity building, assistive technology) are not “assessed” after they are provided. Funding for supports is provided in a participant’s plan based on need and reasonableness. No additional statutory process of “assessment” was identified by the Respondent and no such requirement can be found in subsection 34(1) of the NDIS Act.Conclusion on the threshold issue The Tribunal determines that the identification of a suitable animal, the training of that animal and the processes by which the animal becomes registered are not in the nature of “future” supports and are not of a nature precluded by the statutory scheme. Funding of identification, training and qualification of a suitable animal is the only pathway available to a participant in the Applicant’s position who would benefit from an assistance dog with specific training. In the Applicant’s Outline of Closing Submissions, she states that in summary, “by denying my application for a replacement provider-trained assistance dog, the Respondent is stating that my safety, self-worth, independence and mental health status is not reasonable or necessary”.[54] It is difficult to see what more the Applicant could do in this case in response to the Respondent’s refusal to providing funding sufficient to enable the Applicant to fund an assistance dog. The Applicant submitted that she has attempted to meet all of the requirements set forth by the NDIS as follows:·“I have provided evidence that an Assistance Dog is a suitable option as evidenced by supporting statements/reports made by members of my treating multi-disciplinary team.·I have provided a proven history that an Assistance Dog is an appropriate support for my needs and goals, having had a working Assistance Dog for 10 years.·I contacted 11 Assistance Dog providers in Australia in November 2019, which were either unresponsive, unavailable to train or to provide”.[55][54] Applicant’s Outline of Closing Submissions.[55] Applicant’s Outline of Closing Submissions. In the decision under review the Respondent refused to include funding in the Applicant’s participants plan on the basis that she had not produced sufficient evidence of the substantive necessity and reasonableness of an assistance dog as a support for the Applicant. The evidence before the Tribunal on review addresses this issue in detail and the Tribunal’s largely uncontested findings of fact are set out earlier in these reasons. The Respondent subsequently questioned the mechanism for funding the process of obtaining an assistance dog and submitted that the NDIS Act did not permit the funding of an animal unless and until the dog had been identified, trained and qualified as an assistance dog for the participant through the completion of relevant accreditation, and assessed by the NDIA to be a reasonable and necessary support. The Tribunal is not satisfied that the NDIS Act contains the limitation contended for by the Respondent and is not satisfied that the mechanism for funding proposed by the Applicant is precluded by the NDIS Act in the way contended for by the Respondent.

Ratio Decidendi

Legal Principle Established

Ms Y gave sworn evidence under oath during the hearing of this application. When asked as to whether she has anything further to add in addition to her letter referenced above, Ms Y spoke to the benefits of an assistance dog in contributing to the Applicant’s independence. She acknowledged that there will still be a need for human carers. However, she observed that an assistance dog would greatly reduce this need and provide the Applicant with a level of independence she does not currently enjoy.[41] Ms Y was cross-examined by the Respondent as to her qualifications to make such observations. Ms Y stated in response that she was a qualified medical practitioner having previously worked as a hospital registrar.[42] Ms Y did not volunteer such information and did not seek to give expert evidence. However, the Tribunal found Ms Y to be an impressive and reliable witness of fact.CONSIDERATION[41] Transcript Day 1, pp. 62-65.[42] Transcript Day 1, pp. 66-67.Findings of fact The Tribunal has considered the substantial medical and other evidence before the Tribunal that is summarised above and makes the following findings, noting that none of the factual issues were seriously challenged by the Respondent:(a)The Applicant suffers from chronic pain in her back, legs and feet. She is frequently fatigued and requires rest throughout the day and walks with the assistance of a wheeled walker. The Applicant has reduced mobility, strength and range of movement. As a result of these limitations, the Applicant is unstable, frequently drops items and is at risk of falling, including whilst showering, whilst in her home and garden and when out in the community. The Tribunal is satisfied the Applicant would benefit from the support of an assistance animal as a result of these physical limitations;(b)The Applicant has previously benefitted from an assistance dog who accompanied her at home (including whilst undertaking various domestic chores and whilst showering, with which he assisted), to her previous workplace and into the general community. The Tribunal is satisfied that the Applicant would benefit from an assistance dog accompanying her in those settings as a result of her physical disabilities;(c)The Applicant has a mental health condition that impacts her confidence. The Tribunal is satisfied that the Applicant would benefit from as assistance dog in order to help reduce her stress and support her psychosocial wellness in various settings; (d)The Applicant is an independent-minded woman who makes a positive contribution to her community and wishes to maximise her participation in various community activities. The Tribunal is satisfied that the Applicant would benefit from an assistance dog in furthering her goals of independence and access my community and enjoying friendships and activities; and(e)The Applicant has agreed with K9 Tales for a dog to be trained to her specific requirements and needs, identified as the assistance dog in training, Sparrow, for the total cost of $34,000 pursuant to the contract entered into by the Appliance and K9 Tales.The threshold legal question