TYKL and National Disability Insurance Agency

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 various other health conditions, including:
[3] Exhibit 1, T-Documents, T3, p. 12.
[4] Exhibit 2, Supplementary T-Documents, A7, p. 24.
·Left wrist and forearm surgery to repair tendons, resulting in reduced movement and strength
·            Removal of pituitary gland
·            Thyroid cancer (treated with chemotherapy) and thyroid removed
·            Sleep apnoea
·            Adrenal adenoma
·            Pacemaker inserted
·            Diverticulitis and bowel removal
·            Osteoporosis
·            Chronic Back Pain
·            Low Blood Pressure
·            Post-traumatic Stress Disorder
As a result of these conditions she suffers from the following symptoms:
·            Reduced mobility, requiring use of walker to mobilise
·            Muscle wasting
·            Walking and seating/bed transfers require assistance
·            Reduced strength and range of motion in upper limbs
·Tendon contractures evident in her arms, back and neck, causing restrictions in range of movement in these joints
·            Loss of sensation in feet, (cold sensation and pins and needles)
The Applicant’s participant plan approved in November 2018, lists the following goals:
Short-term Goals:
I want to be able to shower safely in my home and access inside and outside of my home safely.
I would like to be independent as possible at home and in the community
Medium or long-term goals:
I want to access therapy support to support and maximise my independence, communication skills and psychosocial wellbeing
I want to access my community and enjoy friendships and activities of interest to me
I want an assistance dog to help me at home
The Applicant lives in her own home set on 5.5 acres and lives with and cares for her adult friend, Mr X, who has significant intellectual impairment. Recently another friend, Ms Y, has also come to live with the Applicant. Ms Y also provides support to the Applicant as a carer. For many years the Applicant enjoyed the companionship and support of a dog called Zac, an Hungarian Vizla trained by the organisation “Assistance Dogs Australia”. Zac died in 2015 and the Applicant initially sought funding through the NDIS for a replacement assistance dog in October 2017, which was refused. The Applicant made a further request in 2018 which has led to this review.
On 12 November 2018 the NDIA approved a statement of participant supports for the Applicant under subsection 33(2) of the NDIS Act for the period 9 November 2018 to 11 May 2020. The NDIS plan contained funding of $191,829.46 including funding for core supports in the amount of $168,702.10. Funding for certain supports requested by the Applicant, being funding for the training of an assistance dog and home modifications, were determined not to be reasonable and necessary supports pursuant to subsection 34(1) of the NDIS Act. The decision under review, made on 3 December 2018, affirmed the 12 November 2018 decision. On 2 January 2019, the Applicant applied to the Tribunal to review her NDIS plan.
On 7 November 2019, the parties reached a partial agreement and made an application to the Tribunal for remittal of decision pursuant to subsection 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) noting the NDIA’s intention to recommend to a delegate that home modifications in the amount of $34,646.17 are reasonable and necessary supports in accordance with subsection 34(1) of the NDIS Act. On 12 November 2019, the Tribunal remitted the decision to the NDIA and as a result of the remittal, the total funding under the NDIS Plan was increased to $231,909.19, with all other supports continued on a pro-rata basis until 21 May 2021. In November 2020, a further issue was agreed which became the subject of a further section 42D decision, dated 25 November 2020, increasing the Applicant’s funding to allow for the provision of a specialised bed, with all other supports continued on a pro-rata basis until 21 May 2021.
The only issue that remains for determination by the Tribunal is whether sufficient funding to allow for the provision, to the Applicant, of an assistance dog can be considered a reasonable and necessary support under to be included in the Applicant’s participant’s plan.
The Applicant seeks funding for a dog that has been trained to assist her with some of her needs and is recognised by a qualification that allows her to be accompanied by the dog in public places. In Queensland, where the Applicant resides, State legislation[5] regulates the industry of dog trainers who may administer a Public Access Test that would allow the handler (here, the Applicant) to be accompanied by the animal as she chooses. An assistance animal has a particular meaning in the context of the Disability Discrimination Act 1992 (Cth) which provides statutory protection from discrimination against those with a disability and extends those protections to those with a disability who are utilising assistance animals. Subsection 9(2) of the Act defines an assistance animal as follows:
[5] Guide, Hearing and Assistance Dogs Act 2009 (Qld).
(2)For the purposes of this Act, an assistance animal is a dog or other animal:
(a)accredited under a law of a State or Territory that provides for the accreditation of animals trained to assist a persons with a disability to alleviate the effect of the disability; or
(b)accredited by an animal training organisation prescribed by the regulations for the purposes of this paragraph; or
(c)trained:
(i)to assist a person with a disability to alleviate the effect of the disability; and
(ii)to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.
The Applicant has been able to identify a qualified assistance dog trainer and has engaged that trainer to provide her with an animal trained to support some of her specific physical and psycho-social needs. The trainer is K9 Tales Training and Assistance Dogs and the dog is a young Labrador named Sparrow. More will be said about both dog and trainer below.
A hearing was convened on 3 and 4 December 2020 in order to consider the evidence and the submissions of the parties. The Applicant was self-represented and the NDIA was represented by Ms Penelope Abdiel of Counsel. The parties participated in that hearing through the electronic platform of Microsoft Teams, with some witnesses participating by Microsoft Teams and others by conference telephone calls linked into the proceedings. Following the hearing, on 9 December 2020 the Respondent provided further written submissions and on 14 December 2020 the Applicant provided further written submissions. In reaching its conclusion, the Tribunal has considered the documents provided by the Respondent under subsections 37(1) and 38AA of the AAT Act together with the evidence and submissions at the hearing, including further exhibits admitted into evidence during the hearing and the submissions of the parties provided after the hearing.
For the reasons which are set out below, 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 12 November 2018[6] is to include sufficient funding to enable the identification, training and qualification of an appropriate assistance dog for the Applicant, and the plan review date is to be fixed at 12 months from the date of this decision.
RELEVANT LEGISATION
[6] For the period 9 November 2018 to 11 May 2020: Exhibit 1, T-Documents, T32, pp. 583-593.
The NDIS statutory framework
The objects and principles of the NDIS Act are set out in Part 2 of the NDIS Act. Subsection 3(1) of the NDIS Act relevantly includes:
(1) The objects of this Act are to:
…
(c)support the independence and social and economic participation of people with disability; and
(d)provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and
(e)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f)facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
(g)promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the mainstream community;
…
Section 4 of the NDIS Act sets out the General Principles guiding actions under the NDIS Act and they relevantly include:
(1)People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
(2)People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.
(3)People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(4)People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5)People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
…
(8)People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.
…
(10)Reasonable and necessary supports for people with disability should:
(a)support people with disability to pursue their goals and maximise their independence; and
(b)support people with disability to live independently and to be included in the community as fully participating citizens; and
(c)develop and support the capacity of people with disability to undertake activities that enable them to participate in the mainstream community and in employment.
…
(15)Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.
(16)Positive personal and social development of people with disability … is to be promoted.
Section 17A of the NDIS Act contains principles relating to the participation of people with disabilities including:
(1)People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.
…
(3)The National Disability Insurance Scheme is to:
(a)respect the interests of people with disability in exercising choice and control about matters that affect them; and
(b)enable people with disability to make decisions that will affect their lives, to the extent of their capacity; and
(c)support people with disability to participate in, and contribute to, social and economic life, to the extent of their ability.
The functions of the agency are set out in section 118 of the NDIS Act and include the following relevant functions:
(1)The Agency has the following functions:
(a)to deliver the National Disability Insurance Scheme so as to:
(i)support the independence, and social and economic participation, of people with disability; and
(ii)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(iii)ensure that the decisions and preferences of people with disability are respected and given appropriate priority; and
(iv)promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and inclusion in the mainstream community;
…
Reasonable and necessary supports in participant’s plans
Chapter Three of the NDIS Act deals with individual plans under which reasonable and necessary supports will be funded for participants in the scheme. Subsection 31(1) of the NDIS Act sets out the principles relating to the preparation, review and replacement of a participant’s plan. These principles are generally reflective of the General Principles set out in section 4 and expressly include, amongst other things, that these processes should:
(b)Be individualised;
(c)Be directed by the participants; and
…
(j)Facilitate tailored and flexible responses to the individual goals and needs of the participant.
Section 33 of the NDIS Act deals with the contents of a participant’s plan. Subsection (1) sets out the requirements with respect to the participant’s statement of goals and aspirations, including that they are prepared by the participant. Subsection (2) applies to the statement of participant supports which must also be included in the plan, and which must be prepared with the participant and approved by the CEO. Subparagraph 33(2)(b) specifically provides:
2A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
…
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
…
Subsection 33(5) of the NDIS Act states that the matters to which the CEO must have regard in deciding whether or not to approve the statement of participant supports are as follows:
(5)In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a)have regard to the participant’s statement of goals and aspirations; and
(b)have regard to relevant assessments conducted in relation to the participant; and
(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d)apply any methods and have regard to any criteria prescribed by the National Disability Insurance Scheme rules in relation to the manner in which the reasonable and necessary supports will be funded; and
(e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f)have regard to the operation and effectiveness of any previous plans of the participant.
Subsection 34(1) of the NDIS Act provides, with respect to reasonable and necessary supports, as follows:
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i)as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

The Respondent submitted that only subsections 34(1)(a) to (d) were relevant in this case and accepted that it was not necessary for the Tribunal to consider subsections 34(1)(e) and (f).
The term “support” is not given a meaning in the NDIS Act. A “support” is defined in section 9 of the NDIS Act as including “general supports”, being those defined in subsection 13(2) as the kind of supports provided by the Agency itself. However, the term “support” and the phrase “reasonable and necessary” are not further defined in the NDIS Act. In McGarrigle v National Disability Insurance Agency [2017] FCA 308 at 91 (McGarrigle), Mortimer J observed, with respect to those words:
[91] 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”.
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (“the Rules”) made pursuant to subsection 35(1) of the NDIS Act provides further guidance with respect to the assessment of reasonable and necessary supports that will be funded. Pursuant to section 209 of the NDIS Act, the Rules are a legislative instrument and are therefore binding to the Tribunal. In this case the relevant rules include:
Value for money
3.1In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a)whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(c)whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d)for supports that involve the provision of equipment or modifications:
(i)the comparative cost of purchasing or leasing the equipment or modifications; and
(ii)whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e)whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f)whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
…
General criteria for supports
5.1A support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
(b)it is not related to the participant’s disability; or
(c)it duplicates other supports delivered under alternative funding through the NDIS; or
(d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
The NDIS Operational Guidelines provide detailed policy to assist the NDIA in exercising its functions and powers in making decisions relating to the approval of specific types of supports in participant plans. Although this policy is not binding upon the Tribunal, it should be applied by the Tribunal unless it is inconsistent with the provisions of the NDIS Act: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. Part 14 of the Operational Guidelines deals expressly with assistance animals and is referred to in more detail below.
ISSUE AND DECISION UNDER REVIEW
The issue to be decided by the Tribunal is whether funding for the provision of an assistance dog for the Applicant, through identification, training and qualification of the dog, is a reasonable and necessary support pursuant to section 34 of the NDIS Act.
On 3 December 2018, a delegate completed an internal review decision under subsection 100(6) of the NDIS Act and confirmed the Respondent’s earlier decision to decline funding for the training of an assistance dog on the grounds that the training costs of an assistance animal are not reasonable and necessary. The delegate’s assessment of the requested support against the criteria in subsections 34(1)(a-d) of the NDIS Act was consistent with the 12 November 2018[7] decision that those criteria had not been met.
[7] Exhibit 1, T-Documents, T32, p. 592.
In expressing reasons for the decision, the delegate included the following statements:
Currently the Agency recognises training organisations that are registered under the requirements in the state and/or territory in which the participant wishes to use their AA. It is acknowledged that the participant is a member for Assistance Dogs Australia however there is no evidence provided of a chosen provider to provide assistance animal training for a dog.
There has also been no evidence provided to demonstrate that the animal will be fully temperament tested as would be standard for an assistance animal provided by a registered provider. This is essential to ensure that the animal is able to perform safely under times of significant stress and is not a risk to themselves, the participant or others. There is no evidence outlining how the dog would interact with the participant’s other animals (i.e. dogs, horse, chicks, ducks and 2 cows) on the property. This may impact on the safety of the dog or the participant if it acts in response to another animal on the property.
As this animal has been privately purchased by the participant and sent for training (emphasis added), there is no evidence regarding the breeding line of the dog, the family history of health issues associated with the breed of the animal and that the animal has been vaccinated against diseases common to that breed of animal. It is noted that one of the anticipated tasks of the assistance animal is to help [the Applicant]obtain items from shopping shelves and helps carry bags in from car. There is no evidence that a dog will be able to safely carry items such as bags of shopping for a long term. Although there is limited academic literature on a safe carrying load of an assistance animal, carrying more than approximately 10% of the dog’s total weight (approx. 2 kgs such as a bottle of milk) hence carrying bags of shopping or items from shopping shelves may be detrimental to the dog’s health and wellbeing. The assessor also states that in the event of a fall, an assistance animal braces to provide support for [the Applicant] to help pull herself to stand this task could pose a risk to the health of an animal to support the weight of the person.
It is unclear to which “privately purchased” animal the decision-maker was referring and neither party elaborated upon this during the hearing. There was no suggestion before the Tribunal that the Applicant was seeking funding for anything other than an assistance animal trained by a registered training provider. The Respondent submitted that, when the Applicant requested that funding be included in her participant’s plan, she had not specified whether she or a provider would conduct the training. It is unclear what funding the Applicant might have been seeking if she were proposing to train an assistance dog herself that she had already purchased. It is also unclear, given her physical limitations, how the Applicant could have embarked on such an exercise herself. During the course of this review the Applicant provided ample evidence that she sought funding so that a recognised training organisation could undertake the training of an animal and the Tribunal has proceeded on that understanding. Apart from the reference in the delegate’s decision to a “privately purchased”, the aetiology of which is unclear, the material before the Tribunal points only to the conclusion that the Applicant has always sought funding that would enable her to have a registered, qualified assistance dog.
The Applicant contended that a fully trained and qualified assistance dog is a reasonable and necessary support to be funded within her plan having regard to her disabilities and her goals, and as demonstrated by the evidence available to the Tribunal about the tasks and circumstance with which an assistance dog could support the Applicant. She sought funding through her participant’s plan that would enable a dog to be identified, trained and qualified. She submitted that the legislative scheme allowed for the funding of the costs associated with obtaining an assistance dog.
In December 2019 the Applicant succeeded in her application to an assistance dog training programme with a service provider, K9 Tales Training and Assistance Dogs[8], that is Registered under and regulated by Queensland legislation. K9 Tales provided a quote to the Applicant in the amount of $34,000 for the cost of providing a fully qualified assistance dog. An 80% deposit was sought, with the balance payable on or before final handover of the Assistance Dog. The Applicant signed the quote to signal her acceptance of the agreement to engage K9 Tales for the provision of services associated with producing a qualified assistance dog.[9] The Applicant advanced the position at hearing that she sought sufficient funding to be included in her participants plan for the provision of an assistance dog as a reasonable and necessary support.
[8] Exhibit 2, Supplementary T-Documents, A2, p. 14-15.
[9] Exhibit 2, Supplementary T-Documents, A3, p. 16-17.
The delegate’s position in the decision under review was that the Applicant had not provided adequate evidence to demonstrate the substantive need for, or reasonableness of, funding for an assistance dog. This position was maintained by the Respondent until around three months prior to the Tribunal hearing. Thereafter, it was the mechanism for funding the training of an assistance dog, rather than the Applicant’s substantive need for that support, that became the focus of the Respondent’s case. In its Statement of Facts, Issues and Contentions, filed on 28 August 2020, the Respondent first articulated its’ submission that a threshold question was to be answered before the Tribunal could consider any substantive question of need or reasonableness: the Respondent submitted that funding training for an assistance animal that is not yet qualified was not consistent with the legislative scheme.
The Respondent advanced this approach during the hearing, submitting that an assistance dog cannot be funded under the scheme unless and until a dog is 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 Respondent submitted that the provisions of the NDIS Act precluded the Respondent from approving any funding for the training, preparation or provision of an assistance dog until that dog is qualified, and certified as the participant’s dog, and until the Respondent has itself determined that the dog is a reasonable and necessary support. To provide funding under a participants’ plan at any earlier stage would, according to the Respondent, fall short of the requirements of subsection 34(1) of the NDIS Act on the basis that this would amount to funding for: (1) a future support; (2) a support that only may exist in the future and, or in the alternative, (3) a support that would duplicate other supports. During the hearing the Respondent submitted that, if the first or second of those three contentions were not accepted by the Tribunal, the Respondent would not seek to press its submission with respect to duplication.[10]
[10] Transcript Day 1, p. 55.
As a result, the Respondent focussed in respect of both the evidence before the Tribunal, and its submissions, on the determination of what is, essentially, a “threshold” question as to the definition of a “support” that can be funded under section 34 of the Act. The question identified by the Respondent as a relevant consideration for the Tribunal can best be expressed thus: Can a support (in this case, an assistance dog,) be funded by the NDIS before it is in existence? The Respondent submitted that, if that question is answered in the negative, then the decision under review, approving a plan that does not include any allowance for an assistance dog that is not yet fully trained, accredited and approved, should be affirmed. If that question is answered in the affirmative, it becomes a matter for the Tribunal to determine the substantive question whether the support is otherwise necessary and reasonable.
The Applicant, understandably, has approached her application to review the delegate’s decision with a focus on whether the criteria of subsection 34(1)(a) to (d) of the Act, in particular, are satisfied with respect to the provision of an assistance animal for her and, if so, submitted that funding should be included in her plan so that an animal can be trained and qualified.
The Applicant has relied on the evidence of her treating medical and allied health specialists to demonstrate that the support would assist her to pursue her goals, assist her undertake various activities and is likely to be beneficial to her. She has identified a registered trainer and costed out the support, producing evidence of the likely timeline and staged costs. Her initial request for funding was refused on 12 November 2018.
During the hearing, the somewhat parallel nature of the parties’ respective approaches became apparent. Counsel for the Respondent informed the Tribunal that she was instructed that the Respondent had taken this approach consistently throughout its conduct of the review application, but did not identify any document in which the “threshold” argument was identified that pre-dated the Statement of Facts, Issues and Contentions filed on 28 August 2020, almost 20 months after the lodgement of the review application.[11] There is no apparent development of this argument prior to 28 August 2020.[12] It was only at that stage that the Respondent clearly articulated that it would advance a novel, threshold argument that had not previously appeared in the original decision, or in the delegate’s decision under review, or in any of the Statements of Issues[13] or other document prepared by the Respondent prior to this date.
[11] Transcript Day 1, pp. 55-57, 59-61.
[12] Exhibit 5, Respondent’s Statement of Facts, Issues and Contentions.
[13] Respondent’s Statements of Issues dated 9 March 2019 and 13 August 2019.
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.
On the first day of the hearing the Respondent sought to tender a report to the National Disability Insurance Agency from La Trobe University, dated 7 August 2019, entitled “National Disability Insurance Scheme participant-trained assistance dogs”. This 80-page report contained a review of literature relevant to various aspects of the training of assistance dogs, together with trainer interviews and recommendations by the author, Dr Tiffani Howell. The aim of the report addressed to the Agency was stated to be “to assist with the development of policies and procedures for participant-trained ADs (assistance dogs) that are based on current good practice, to optimise positive outcomes for all parties”. However, the author of the report stated that she was unable to develop good practice recommendations for NDIS participants interested in applying for NDIS funding to train their own assistance dog. The Tribunal accepted part of the document into evidence noting that, given the parameters and purpose of the report, it was of peripheral relevance at most in this case and that the Applicant had limited time to consider and respond to that document.

The report expressed some conclusions as to the likely success of training as assistance dog, although the data on which stated failure rates was not available for further consideration:
Failure rates for dogs in AD programs range from 24% to 49%, even in dogs which are typically purpose-bred for assistance work and trained by individuals with extensive experience in AD training. Failure rates for other types of working dogs (for example; military, detection) can reach as high as 75%.
Dr Kersti Seksel, Registered Veterinary Specialist in Animal Behaviour, submitted an expert opinion report dated 4 August 2020 at the request of the Respondent.[21] In summary, Dr Seksel stated in that report:
[21] Exhibit 2, Supplementary T-Documents, R6, p. 186.
“I am of the opinion that although assistance dogs have a great role to play in helping humans in many and varied ways, we need to be very mindful of the fact that being an assistance dog may not be helpful for an individual dog or its physical or behavioural well-being in all circumstances”. “I believe that [the Applicant] is likely to benefit from having an Assistance Dog trained to deliver the tasks and functions proposed. However, I believe there are some risks in terms of the success of the proposal as presented. These are:
·The brief outline of the training methods proposed does not specifically preclude aversive training methods which may compromise the welfare of the dog and may reduce the performance of the dog in terms of the tasks required.
·There is no contingency for the potential of the selected puppy to fail to be suitable as an Assistance dog, which going by the failure rates for guide dogs, is likely to be greater than 50%.
·The Functional Needs Assessment (FNA) costing and timing assumes the dog will be available in 2020. It will be approximately 2 years before the dog is available assuming the selected puppy is successfully trained and introduced to [the Applicant’s] home. This means any attributable savings referred to will not occur until 2022-23 financial year at the earliest”.
It is unclear whether the “failure rates for guide dogs” referred to by Dr Seksel were taken from the La Trobe University report or some other source.
The Tribunal notes that the La Trobe University report focussed attention upon the training of assistance dogs undertaken by participants in the scheme. There is inadequate information as to the source data in order to conclude that any reliable percentage can be applied to the probability that a dog, once selected, will complete training and accreditation as an assistance dog. However, Ms Wegener, whose training organisation has been engaged by the Applicant to provide her with an assistance dog, stated that her success rate for training assistance dogs to date had been higher than the figures suggested in the La Trobe University report or those referred to in Dr Seksel’s report. Of the nine dogs who had been trained by K9 Tales prior to the hearing, one had been withdrawn due to an injury and another re-assigned as the dog was determined not to be suitable for the intended handler.[22]
[22] Transcript Day 2 pp. 110-114.
On 23 October 2020, the Applicant filed with the Tribunal and the Respondent, a letter from Ms Di Wegner of K9 Tales dated 28 August 2020, which directly responded to the Respondent’s contentions as outlined in their Statement of Issues, Facts and Contentions of the same date.[23] That letter provided some additional information about the mechanism by which work was being undertaken by K9 Tales to train an assistance dog that may suit the Applicant’s needs (“Sparrow”, an 11-month old Labrador). Parts of that letter are set out here:
[23] Exhibit 3, Additional Supplementary T-Documents, A19, p. 1.
(1)K9 Tales has not received a request for payment plan, only a total quote which was provided. K9 Tales has received full funding for an Assistance Dog from NDIS for a previous client in which a payment plan arrangement had been agreed upon. K9 Tales works together with their clients to reach a suitable payment plan option, otherwise K9 Tales requests 10% on application approval, 80% when suitable dog matched, 10% on handover. K9 Tales trains dogs for an individual person and their specific needs and unique situation, therefore, K9 Tales requires partial payment to ensure commitment. Should applicant decline dog from date of approval, before placement, refunds may be provided in extenuating cases minus costs of retraining. This is not eligible for clients who chose to get a dog elsewhere.
(2)At no point has it been said that K9 Tales is seeking funds for a dog that does not exist. It has been said that it takes 18 months to 2 years to fully train an Assistance Dog. K9 Tales has already allocated a dog to [the Applicant] which has demonstrated suitability as an Assistance Dogs to fulfil her goals. This dog consistently demonstrates confidence, adaptability, reliability, eagerness to please and learn and a kind friendly manner. This particular dog has commenced foundation assistance dog task training and is successfully picking up items, blocking hazards, tugging at doors, turning on lights and working in public. This Assistance Dog still requires further training and proofing of skills before becoming qualified.
(3)As with any specialised technology, whether that be a trained Assistance Dog, or a modified car or wheelchair, it is unlikely that such an item would be readily available for individuals and their specific needs. It is an unrealistic expectation that a personalised modified technological support item is readily available immediately for any person.
(4)K9 Tales is an approved organisation under the Guide, Hearing and Assistance Dog Act having proven nationally recognised training qualifications and demonstrated evidence of the training, placement of Assistance Dogs and providing ongoing training, evaluation and support to Assistance Dog working teams. This includes the selection of suitable dogs, partnering of dogs and handlers, team training and ongoing support throughout the working life of the dog.
(5)K9 Tales utilises latest scientific findings in their training methodology. Training consists of positive reinforcement-based training principles to build a positive and lasting relationship between handler and their dog. Marker training is used along with luring, capturing, chaining, and shaping principles. Dogs progress from an acquisition or teaching phase to a fluency phase where the dog becomes familiar with training cues. Dogs then progress to the generalisation phase where dogs learn to complete behaviours in a variety of circumstances and situations. Finally, a maintenance stage is achieved where the dog has successfully demonstrated their obedience and skills in a varied environments and situations.
(6)The first 12 months of training is focused on building positive relationships with dogs and handlers, engagement, extensive socialisation and basic obedience. In addition to this, lots of play based learning takes place such as retrieve and tug. Foundation Assistance Dog skill concepts are also introduced from around 7 months of age.
(7)Generalisation of all obedience skills and Assistance Dog tasks takes place from 12 to 18 months of age. Following this, formal team training begins.
(8)Should a dog be deemed unsuitable at any time throughout these stages of training, the dog will be withdrawn or reassigned to a suitable job. Regular assessments are completed weekly to identify any areas of concern.
(9)Dogs are matched based on goals of handlers and their ability to provide these, along with other factors such as size, energy levels and temperaments. Evidenced based outcomes are utilised to ensure that client goals are achieved. Handler goals are identified on application and team training includes training handlers to utilise their Assistance Dog to complete Assistance Dog tasks that were identified.
(10)Once a dog has completed team training with the handler, passed a Public Access Test as set forth by the GHAD Act, it becomes a qualified Assistance Dog and ownership transfers to the handler. The handler is responsible for the ongoing care of the dog.
(11)K9 Tales is responsible in ensuring all training standards are maintained, as per GHAD Act, in order to maintain their Assistance Dog status, including welfare of dog. K9 Tales provides ongoing support throughout the entire working life of the dog.
(12)On handover of the Assistance Dog, K9 Tales will continue to require ongoing assessment via direct contact, phone, emails and other media modes to monitor and assess progress. Initially this will be weekly and gradually will become fortnightly, then monthly, six monthly and yearly. K9 Tales is always available should additional assistance be required at other times. GHAD requires formal reassessments every 3 years, while K9 Tales will require more frequent assessments.
(13)It is not uncommon for Assistance Dogs to require some additional training support for which K9 Tales is available to provide. Reasons may include reskilling or upskilling to new additional tasks required.
(14)If the dog should become unsuitable for ongoing Assistance Dog work, K9 Tales will assess and formulate a suitable plan to achieve best outcomes for both dog and handler. Options may require health assessment and intervention, additional training or possible retirement. Retirement may be required due to health reasons or age, if the dog is unable to perform its trained tasks without any discomfort, stress or any identified concerns for its wellbeing.
(15)It is unlikely that the handler will fail to bond with the Assistance Dog due to the early bonding K9 Tales allows with its handlers. Should there be any concern here, an alternative dog would be allocated.
(16)[The Applicant] has already been introduced to her young Assistance Dog and has identified strong feelings and an emotional bond towards her.
Ms Wegener was cross-examined at length by the Respondent during the hearing and gave evidence that was largely consistent with the report set out above. The Tribunal notes that some of the conclusions expressed by Ms Wegener (for example, those in paragraph three of the document set out above) are likely outside her expertise and are matters on which the Tribunal has formed its own view, having regard to the relevant facts and law. Ms Wegener was questioned during the hearing about her obligations and those of the Applicant if the training of the identified dog, Sparrow, were to fail. Ms Wegener stated that K9 Tales had been contracted to provide a dog suitable for the Applicant and her needs and she believed that K9 Tales would do so. She further stated that if the Applicant no longer required the dog then she may be entitled to a refund of any costs incurred, but that this would depend on the reasons for that changed circumstance and would entail part of the training costs being retained by K9 Tales for re-training.[24]
[24] Transcript Day 2, pp. 131.
On 23 October 2020, the Applicant filed with the Tribunal and the Respondent, a report dated 13 October 2020 from Occupational Therapist, Michaela Grant, responding to the Respondent’s Statement of Issues, Facts and Contentions of 28 August 2020 and some issues raised in the report of Dr Seksel. The report includes the following statements:[25]
[25] Exhibit 3, Additional Supplementary T-Documents, A21, p.13.
(1)Dr Seksel stated that a well-trained Assistance Dog of suitable size and strength (such as Labrador retriever or similar) would be able to aid with these tasks. It is known that K9 Tales breed Labrador Retriever’s to train as an Assistance Dog. Therefore, it is reasonable to expect that their animals will be capable of performing these tasks. The Assistance Dog will be trained to provide environmental support, mobility and stability assistance, retrieval, assisted interactions, and emotional and psychiatric support.
(2)It is noted in the letter supplied by Diane Wegener from K9 Tales that once a dog has been allocated to [the Applicant], team training between the participant and the dog begins. This includes how to negotiate different environments the Assistance Dog and their handler may access in the community, training for the handler to support the Assistance Dog with performing their task assistance, and general training of how to care for the animal appropriately. Regarding breeding and selection, K9 Tales screen all of their dogs for full DNA testing, hip and elbow scoring, and all identifiable diseases. It also stated that breeding and training dogs are chosen based on their health and temperament to ensure success within the training program (Wegener, 2020).
Contention 3: The funding sought is prohibited because it would duplicate a support already funded for the Applicant.
(3)The National Disability Insurance Scheme (NDIS) states that funding cannot be duplicated for a support already funded for the application and the response completed by Ms Keesing indicates that the request for an Assistance Dog for [the Applicant] is considered “double dipping”. It is also recognised that it is considered duplicate funding due to the time frame of two years which it takes for a dog to be trained and then allocated to a participant. However, [the Applicant] will not have to wait two years for an Assistance Dog as they have a continuous training program of suitable dogs. They only select dogs that are suitable for assistance training to ensure success. This could be available to the Applicant as early as six months depending on suitability and completion of training. Di Wegener (K9 Tales) also provided the following information:
“K9 Tales has several dogs currently in training, with more dogs entering the program before the end of the year. If a dog should deem to be unsuitable for any reason, K9 Tales will assess and formulate the most suitable plan to promote best outcomes. That may include ongoing training, retraining, reassigning, or retirement. If in the unforeseen circumstance, a matched dog should be unsuitable for an applicant, another suitable dog already in training will be matched. K9 Tales guarantees the placement of a qualified Assistance Dog.”
(4)Guide Dogs Australia is a well-known organisation which trains Assistance Dogs for individuals with visual impairments. This is commonly funded for participants through their NDIS plan. Guide Dogs Queensland was completed on 28/09/2020 where it was discussed they have a selection process which is undertaken (similar to K9 Tales) and if a participant is deemed suitable, an application to the NDIS for funding will be completed. It was also stated that when a participant is approved by the NDIS, the funds can be drawn down and held while the training process for the Guide Dogs is undertaken, which also takes up to 2 years. This is similar to the original request by K9 Tales for progress payments to be made while training is being undertaken.
The Applicant arranged for evidence to be given at the hearing by the following witnesses who have treated her in their capacities as medical and allied professionals:
a. Jonathon Entriken, a physiotherapist;
b. Michaela Grant, an occupational therapist;
c. Katie Mandall, a psychologist.
50. The Respondent required each of these three witnesses to be available for cross-examination. During cross-examination, Counsel for the Respondent put to each witness that they were not a specialist, having regard to either their training or experience, with the placement of assistance animals. Unsurprisingly, each conceded. It was not put to any of these three witnesses that the opinions they had expressed as to the Applicant’s functional impairments, needs and capacities were inaccurate or exaggerated. The whole of the medical evidence available to the Tribunal is unchallenged by the Respondent in that regard. That evidence, which is summarised below, when considered collectively, paints an overwhelmingly convincing picture that the Applicant’s physical and psycho-social needs, when considered with her participant’s goals, personal safety and confidence, would be supported by an assistance animal. The conclusions expressed in the reports of the various medical witnesses are summarised in the following paragraphs.
On 3 November 2016, Dr Jennifer Liu, General Practitioner, provided a letter addressed “To whom it may concern” certifying the Applicant’s chronic back pain and her requirement for assistance mobility devices.[26] Dr Liu concluded that the Applicant “will benefit from having an assistance dog as it will be able to assist [the Applicant] in ways of alerting if she falls and picking things up for her. She will benefit from having a companion as it will benefit her mental wellbeing”.
[26] Exhibit 1, T-Documents, T11B, p. 91.
On 15 September 2017 a report was completed by psychologist, Ms Rachel Lilley, at the request of the Applicant’s NDIS Advisor.[27] Ms Lilley stated:
“Worthy of consideration, yet outside the scope of psychological assessment is a complete NDIS assistance animal assessment, given the increase in functioning [the Applicant] reports to have experienced when she had her assistance dog. [the Applicant] reports that having this animal decreased her risk of harm, due to her dog Zac alerting others if she was unwell. Having Zac’s companionship additionally meant [the Applicant] was able to access her community independently and engage in employment”.
[27] Exhibit 1, T-Documents, T8, p. 69.
Ms Esther Vella, occupational therapist, submitted a report which is undated, however, is noted in the material to have been received by the Respondent on or around July 2018.[28] Ms Vella stated that, although an assistance animal would not remove the requirement for support workers, it would provide support in addition to that of support workers, especially during the hours that they are not present in the home. Ms Vella concluded that, based on the Applicant’s previous experience with an assistance animal, an assistance animal would “assist with thermoregulation, fluid intake, minor dressing tasks and general monitoring” and “is expected to improve [the Applicant’s] quality of life, her ability to complete tasks without support worker assistance and her safety within the home”. Ms Vella acknowledged the Applicant’s expectation that “the assistance animal will help her to safely go outside, access her yard, commence a volunteer role and do the things that she enjoys doing”. Ms Vella provided a more recent report on 13 May 2019 in which she confirmed the recommendations made in her July 2018 report.[29]
[28] Exhibit 1, T-Documents, T11K, p. 345.
[29] Exhibit 2, Supplementary T-Documents, A1, p. 1.
On 3 July 2018, Dr Ambar Rafique, General Practitioner, wrote a medical certificate for the Applicant which summarised the Applicant’s conditions and symptoms, and noted her susceptibility to falls”.[30] Dr Rafique concluded that, “Considering the recent stressors in her life, I think it is pretty reasonable that she should have 24/7 help available from NDIS for her safety”.
[30] Exhibit 1, T-Documents, T11I, p. 342.
The Applicant’s physiotherapist, Mr Jonathan Entriken, submitted a letter dated 28 January 2020 addressed to the Tribunal which provided a summary of the Applicant’s conditions which create problems with strength, balance, coordination and proprioception thereby impacting her physical capacity.[31] Mr Entriken explained that, as a result, her conditions cause generalised functional difficulties, mobility issues and increases the Applicant’s risk of falling. He further stated: “An assistance dog would be beneficial to [the Applicant] by being an alert system to client for falls avoidance” and “to notify neighbours/occupants of home should client be in distress and need immediate assistance”. Mr Entriken stated that an assistance dog is expected to “be within earshot of [the Applicant] at all times”, “to follow [the Applicant] outside and to be within a 10m radium during these times” and “to respond to commands for critical assistance – that is to bark or otherwise alert people nearby should [the Applicant] be in distress; distress would include [the Applicant] instructing the dog that she needs assistance, being unconscious or otherwise being unable to communicate”.
[31] Exhibit 2, Supplementary T-Documents, A5, p. 19.

On 1 April 2020, Ms Betty McLellan, the Applicant’s psychotherapist, sent an email to the NDIA in support of the Applicant’s application for review of decision at the Tribunal. Ms McLellan opined that an assistance dog would have a positive impact on the Applicant’s mental health. Ms McLellan concluded, “I strongly support her application for an assistance dog because, in addition to the help she would receive dealing with her physical disabilities, I am certain that such assistance would go a long way toward helping reduce her mental and emotional stresses as well”.[32]
[32] Exhibit 2, Supplementary T-Documents, A6, p. 21.
Ms Michaela Grant, occupational therapist/assessor, provided a report dated 8 May 2020 at the request of the Applicant to support her request for an assistance animal.[33] Within the report, Ms Grant identifies the Applicant’s current capacity and participation in all activities of daily living. The report submits that the funding of an assistance animal is more cost-effective than the Applicant maintaining her current hours of support and will assist her emotional wellbeing, social and economic participation. Ms Grant confirmed that the Applicant would still require support and assistance from other persons. In terms of the cost-effectiveness of the provision of an assistance animal, Ms Grant set out various calculations and concluded:
“[The Applicant] currently receives 40 hours of support a week to assist with personal care and domestic tasks. She will continue to require assistance from another person for tasks that are unable to be completed by an Assistance Animal. However, these hours can be reduced by approximately 12 hours per week”.
…
“The cost of [the Applicant] receiving her current amount of support over an 8-year period will cost the NDIA $1,043,710.72. However, with the provision of an assistance animal, support for [the Applicant] will cost the NDIA $750,091.20. This will reduce NDIA’s cost of supports by $293,619.52 over an 8-year period”.
[33] Exhibit 2, Supplementary T-Documents, A7, p.22.
Ms Grant submitted a more recent report dated 13 October 2020 which responded directly to the Respondent’s Statement of Facts, Issues and Contentions. In summary, Ms Grant stated that, “Regarding my professional opinion, I stand by original recommendation that [the Applicant] will greatly benefit from having an Assistance Dog which will provide her with support in both the day and night within the community. [The Applicant] will have increased community access, social, and economic participation. Furthermore, it will also suspend further deterioration of her mental health condition and improve her quality of life”.[34]
[34] Exhibit 3, Additional Supplementary T-Documents, A21, p13.
Ms Leah May, Disability Royal Commission Counsellor, provided a letter dated 13 May 2020 in support of the Applicant being provided funding for an assistance dog. Ms May stated: “It would be beneficial for [the Applicant’s] emotional and psychological well-being for this funding application to be supported by the NDIS as this will provide her with consistent support and assistance for her day to day needs. [The Applicant] requires companionship and connection to heal from her experiences and I fully support her application for an assistance dog to enhance her overall quality of life as this will allow her to develop the confidence to resume regular activities including returning to work”.[35]
[35] Exhibit 2, Supplementary T-Documents, A8, p. 47.
On 4 June 2020, psychologist, Ms Katie Mandall, wrote a letter at the request of the Applicant in support of funding being provided to her to aid in the purchase of an assistance dog.[36] The letter included the following statements, “[the Applicant] notes that her previous assistance dog supported her completion of tasks… [the Applicant] reports that access to these supports assisted her to experience a level of independence that she feels has diminished, particularly in more recent times as she has worked to increase community participation”. “She reports experiencing a feeling of hopelessness and lack of purpose and considers that her community participation endeavours cannot be maintained without the kind of supports an assistance dog can provide”.
[36] Exhibit 2, Supplementary T-Documents, A9, p. 48.
Ms Y, a support worker and carer who resides with the Applicant, also gave oral and written evidence in these proceedings. On 20 August 2020, Ms Y wrote a letter in support of the Applicant which provided evidence relevant to Mr X,[37] who was spoken of in a 2017 report of psychologist, Ms Rachel Lilley,[38] as having aversive behaviours that the Applicant finds difficult to manage and was further identified by the Respondent’s expert witness, Dr Kersti Seksel, as a possible risk to the welfare of an assistance dog should it be introduced into the home where it is to reside with Mr X and the Applicant.[39] According to Ms Y’s letter, she has not at any time had concerns as to the welfare of any animals who live on the property. The Respondent later advised in its Statement of Facts, Issues and Contentions that following the evidence filed by the Applicant on 24 August 2020, including Ms Y’s letter, addressing this issue, “the Respondent accepts [Mr X] is unlikely to pose a threat to animals on the Applicant’s property”, however, “maintains that the presence of [Mr X] in the home is still a factor that would need to be taken into account in ensuring that any trained assistance dog forms the requisite relationship with the Applicant and remains able to perform the necessary tasks”.[40]
[37] Exhibit 2, Supplementary T-Documents, A15, p. 57.
[38] Exhibit 1, T-Documents, T8, p. 76.
[39] Exhibit 2, Supplementary T-Documents, R6, pp. 198-199.
[40] Exhibit 5, Respondent’s Statement of Facts, Issues and Contentions at [46].
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
The Tribunal has considered the submissions of the parties’ having regard to the context of this review Application in which the Applicant seeks funding necessary for the identification, training and registration of an assistance dog.
In closing submissions, the Respondents stated the NDIS cannot fund a future support, and it cannot fund a support that only might exist in the future, as:
(a)the Respondent may only assess whether a support is reasonable and necessary, at the time it is being funded, because the language of s.34(1) itself requires that the Respondent must be satisfied that the support will assist the participant to pursue their goals, will assist the participant to undertake activities, and the support represents value for money, in order to be funded: s.34(1)(a), (b) and (c); and
(b)judicial consideration of the provisions focus on the nexus between what the participant is impaired from doing, what the proposed support can do, and therefore how the proposed support can assist the participant in pursuing their goals or participating in the community, notwithstanding their disability.[43]
[43] Respondent’s closing submissions para 26 - Reference: National Disability Insurance Agency v WRMF [2020] FCACF 79 at [201], [216].
The legal basis for the Respondent’s contentions was set out in detail in its Statement of Facts, Issues and Contentions filed on 28 August 2020.[44] The following paragraphs, from the Respondent’s Statement of Facts, Issues and Contentions outline the Respondent’s interpretation of the legislative framework:
[44] Exhibit 5, Respondent’s Statement of Facts, Issues and Contentions.
[18]As to the guiding principles of the Act, s 4(11) is of particular importance. The section sets out ‘what a reasonable and necessary support should enable and empower people with disability to do’ – that is, to pursue their goals, maximise their independence, be included in the community as fully participating citizens, and undertake activities that enable them to participate in the community and in employment.
[19] It follows that a ‘reasonable and necessary support’ is, at a minimum, something which provides assistance to a participant that is connected to his or her disability and impairments. That in turn necessitates that the thing for which funding is sought both: (1) has the capacity or ability to assist a participant in overcoming or addressing some aspect of his or her disability and impairments; and (2) will in fact be used by the participant in that way.
[20] The mere fact that something might, at some point in the future (such as in two years’ time), be changed into some other thing that is capable of satisfying the statutory criteria does not enable it to be funded now.
[21] …
[22] As the above underlining indicates, each of the criteria in s 34(1)(a) to (d) require the Tribunal to be satisfied (among other things) that the thing which is to be funded will be or, in the case of s 34(1)(d), is likely to be, of assistance or benefit to the participant. Again, the question is whether the thing under consideration will satisfy those requirements when funded. Section 34 requires the relevant decision maker (in this case the Tribunal) to be satisfied in relation to the funding of a support that it ‘will assist the participant’ in the ways specified (ss 34(1)(a), (b)), that there are to be ‘benefits achieved’, and that it ‘will be, or is likely to be, effective and beneficial for the participant’ (s 34(1)(d)). The language used is imperative and immediate – the support must be of assistance or benefit when funded.
[23] As to s 34(1)(b), in WRMF the Full Federal Court said that the criterion:
asks the decision maker to focus on how a claimed support, if funded, might assist a participant to ‘undertake activities’. That is, how does it help the participant to do this?
The necessary inquiry is as to the specific way in which the requested support is to be used by the participant – the Tribunal must be satisfied that it will, if and when funded, assist the participant.
It was accepted by both parties that funding the capacity building of a support (for example, a carer or parent) is regularly regarded as reasonable and necessary under the Scheme and frequently funding by the NDIA. The Tribunal invited the Respondent to make submissions following the hearing as to any differences between such capacity building and the funding the training of an assistance animal to become a reasonable and necessary support. The Respondent submitted that the principle distinctions are that:
(a)an assistance animal is a “formal” support, like a wheelchair or, more aptly here, a paid care provider. The NDIS does not fund the training of formal supports because they are already trained and qualified to provide support to a participant;
(b)a parent or unpaid carer, by contrast, is an “informal” support. That person may receive training, funded by the Scheme, to better assist the participant in their charge. A parent or carer could themselves receive support funded by the Scheme, having regard to the burden on them, the relational difficulties associated with being the permanent carer, and the fact that they are typically not in a position to leave or attain respite from their caring duties;
(c)a parent or carer, themselves, are not the “reasonable and necessary” support being funded. The support is the training or capacity building provided to them. There is therefore no question of whether they might or might not become a reasonable and necessary support and no problem associated with the financial risk of funding training that does not result in the creation of a reasonable and necessary support
The Respondent accepted that, in both cases, there would be a future modification process being undertaken but stated that, in the case of an assistance animal, as with other formal supports, funding is sought for the “finished product”, the utility of which must be assessed at the conclusion of the modification process.
The Applicant made written submissions on this issue after the hearing, submitting that the Respondent’s approach to this issue was incorrect, and that the NDIA was equipped to provide a variety of funded supports. The Applicant submitted that the Respondent did indeed fund the training of paid support workers and carers, who are regarded as formal supports. The Applicant referred to the published 2020 NDIS Price Guide for necessary training of non-qualified personnel in the daily care of participants under the scheme and provided details of the costings for such training when funded by the NDIA. The Applicant submitted that no distinction was properly to be drawn between funding the training of an assistance animal to become a reasonable and necessary support and funding the capacity building of a non-qualified personnel to assist a participant.[45] The Tribunal accepts that submission: if training of a person to provide assistance to a scheme participant falls withing the definition of support, then training for a support animal to provide assistance to a scheme participant should also fall within that definition.
[45] Applicant’s Outlining of Closing Submissions, p. 4.
The Respondent’s contended difference in approaches between formal and informal supports is not necessary in order to give section 34(1) it’s proper meaning, and would lead to a surprising result where the funding of training for an assistance animal could never be permitted as a reasonable and necessary support until all of that training (and various other steps to qualify the animal) were complete.
The Respondent stated that the language of section 34(1) was “imperative and immediate – the support must be of assistance or benefit when funded.”. It is the contention of the Respondent that funding can be released for a support only if that support already exists. Again, it is difficult to reconcile this submission with the plain words of section 34(1) and the work those words have to do in facilitating funding to support participants. Types of supports can vary vastly: from the care of a doctor or allied health professional, to capacity building in a paid or unpaid carer, and from home modifications to adaptive technology to assist with a range of disabilities. In each case, the scheme allows for funding first be approved within the participant’s plan and then for that support to be obtained.
Subsection 34(1) refers to supports that will (future tense) assist a participant. Subparagraph 34(1)(d) is less imperative again, as it inquires as to whether the support will be, or is likely to be, effective and beneficial having regard to relevant considerations. Essentially, the Respondent seeks to impose upon the language of subsection 34(1) a temporal limitation which is not consistent with the plain meaning of its language. The temporal limitation for which the Respondent contends is simply unavailable and is inconsistent with the language describing the attributes of a reasonable and necessary support in subsection 34(1) of the NSIS Act. It is clearly within the contemplation of the Act that supports will, in the future, assist a participant, but that funding for such supports may need to be approved within a current plan to make provision for the generation of such supports.
The Respondent’s artificial characterisation of the nature of the support sought to be funded in the Applicant’s plan has led to surprising submissions in this case. The Respondent submitted that the Applicant has sought funding for an assistance animal that does not yet exist. This is a mischaracterisation of the Applicant’s case and of the evidence before the Tribunal. It is clear that the Applicant has sought funding to be included in her plan sufficient to identify, train and qualify an assistance animal. There is no evidence before the Tribunal as to how the identification, training and qualification of an assistance animal appropriate for the Applicant’s needs can take place without approved funding in place. The Respondent did not produce any evidence as to any alternative funding models, although Counsel for the Respondent alluded to such alternative models during the hearing and in her written submissions. There was no serious suggestion that the Applicant should bear the costs of identifying and training an assistance animal herself and seek some kind of re-imbursement when the agency assessed the animal as a support (just as there was no suggestion that the Applicant should have funded home modifications recently undertaken until such time as the Agency had included sufficient funding in her participant’s plan by retrospectively assessing whether they provided reasonable and necessary support[46]).
[46] In fact, the Applicant alluded in her evidence to the fact that some of the home modification work funded in her plan had been problematic and not of assistance in supporting her needs, although this issue falls outside the scope of this review – Transcript Day 1, pp. 18-19.

In the case of home or vehicle modifications, or capacity building in carers, the work needed to provide the future assistance to a participant is first funded within the participant’s plan, then provided to the participant. There is no statutory basis to distinguish between those examples, which are regularly funded under the scheme, and funding sought for capacity building in an assistance animal. Each are “supports” as that term is used in subsection 34(1) of the NDIS Act and each are capable of assisting the participant. In National Disability Insurance Agency v. WRMF[47] the Full Federal Court stated that the relevant criterion when considering the scope of permissible supports under s.34(1) was to focus upon “how a claimed support, if funded, might assist a participant to ‘undertake activities’”.
[47] [2020] FCACF 79 at [216].
With all funded supports there exists a risk that the participant may not benefit from the support in the manner envisaged, and therefore might not assist the participant. A number of examples usefully illustrate the point: a carer trained through an allowance for capacity building may cease to be available to provide such care with after having received training; a home modification may not be able to be completed due to unforeseen structural issues in the participant’s home, or may not work to support the participant as anticipated; an assistance animal initially identified for a participant may become unwell or unsuitable before it is fully trained, or qualified, or this may occur immediately after placement, or at some later stage. In each case, further funding may be required so that the participant can continue to benefit from the support. The existence of such a risk will require analysis as to reasonableness, and may require management under the scheme, but the existence of contingent risk does not prevent the support from being funded under the NDIS Act.
The Respondent submitted that the risk of attempting to develop new supports, included the training of an assistance dog, was not to be borne by the Respondent.[48] The Respondent submitted that the acceptance of the training of an assistance dog as a reasonable and necessary support could lead to the funding of a “potentially unlimited” number of attempts to train an animal. It is possible to envisage a scenario where a dog, once identified as a likely candidate, does not become a registered assistance animal. In such circumstances, further decisions may be made by the NDIA as to the reasonableness of further funding and the management of the participant’s plan in the event that such contingent risks were realised. Requests by a participant for the funding of unlimited attempts to train an assistance dog is a theoretically possible, but highly unlikely scenario. The evidence before the Tribunal does not suggest otherwise. The Tribunal does not accept the submission that funding for the development of skills in an assistance dog is not something that could be funded by under the scheme or that a participant should be held out of an otherwise reasonable and necessary support because of contingent concerns that training may not succeed.
[48] Statement of Facts, Issues and Contentions, 27 August 2020, paras 57-60, 79.
That conclusion is re-enforced as the Respondent’s contention appears at odds with the intention of the statutory scheme as a whole and its purpose and objects. The NDIA was created for the purpose of taking an insurance approach to the bearing of such risks so those with access to the scheme need do so no longer.
The Explanatory Memorandum to the NDIS Act, which contains the following explanation of the approach intended for the Scheme, makes clear this statutory intent:
“…the Commonwealth and all state and territory governments have agreed on the need for major reform in the form of a National Disability Insurance Scheme, which:
·     will take an insurance approach that shares the costs of disability services and supports across the community;
·     will fund reasonable and necessary services and supports directly related to an eligible person‘s individual ongoing disability support needs; and
·     will enable people with disability to exercise more choice and control in their lives, through a person-centred, self-directed approach, with individualised funding.
The Bill establishes a scheme that gives effect to these critical principles and gives effect in part to Australia‘s obligations under the United Nations Convention on the Rights of Persons with Disabilities.”[49]
[49] Explanatory Memorandum, National Disability Insurance Scheme Bill 2012 (Cth) 1.
An assistance dog is not akin to adaptive technology that can be purchased ready-made. An assistance dog is trained to the needs of the individual handler and this takes time. Both Ms Wegner and Dr Seksel noted the standard protocols in their reports and gave sworn evidence to that effect during the hearing.[50] Naturally, costs are entailed in such time consuming and labour-intensive training. The Applicant has been a member of the organisation “Assistance Dogs Australia” and gave sworn evidence during the hearing that the organisation was no longer accepting applications as they were currently at capacity. That evidence was not challenged by the Respondent. The Applicant was a member of that organisation at the time of her application and has since taken her own steps to engage an alternative service provider. There was no evidence before the Tribunal of the funding model for Assistance Dogs Australia or whether the Respondent’s position would have differed had the identification, training and qualification of an assistance dog instead been provided by that training organisation.
[50] Transcript Day 1, pp. 69-79; Transcript Day 2, pp. 97-103, 148-155.
K9 Tales Training and Assistance Dogs is a Queensland Government approved organisation established in 2015. Based on the Sunshine Coast in Queensland, K9 Tales specialises in certifying and testing dogs for Public Access and facilitates the training and placement of assistance dogs to people with disabilities. The head trainer, Ms Wegener, provided written evidence confirming that the organisation is accredited under the Hearing and Assistance Dog Act 2009 (Qld) and each trainer is to complete training with the National Dog Trainers Federation. The evidence from K9 Tales establishes that it can provide an assistance dog within an approximate training time of 2 years and at a cost of $34,000.[51]
[51] Exhibit 2, Supplementary T-Documents, A17, p. 62.
Ms Wegener gave oral evidence during the hearing of this application. During the hearing, she discussed the business model of K9 Tales and submitted that it requires a minimum of a 10 per cent deposit once an applicant has been approved into the program.[52] She stated that an assistance dog must be fully paid off by the time in which the dog is handed over as a fully qualified assistance dog to the Applicant. When asked whether there would be another dog provided by her organisation should the current dog in training, Sparrow, be unsuitable, she confirmed that this would be the case. Ms Wegener advised that K9 Tales currently has other dogs in training. However, this course of action would (understandably) add to the standard timeframe and may add to the cost. Ms Wegener further acknowledged the organisation’s obligations under State and Federal consumer protection laws and must provide a fully qualified assistance dog to an applicant.[53]
[52] Transcript Day 2, p. 98.
[53] Transcript Day 2, p. 101.
There is no evidence from which the Tribunal could discern a difference between K9 Tales and other service providers in terms of funding model. Perhaps larger organisations can afford to delay their requirements to be paid, or perhaps they are funded by charitable donations. It may be that larger organisations provide training of a more generic type of assistance animal such that the process of matching the animal to a handler is less personalised. These are mere observations, and the Respondent did not develop any such argument through evidence. However, as a tailored approach is required under the scheme in order for each participant to meet their own goals, the Tribunal need only be concerned with whether a support of this nature is reasonable and necessary for this Applicant is this case. There is ample evidence before the Tribunal that the Applicant has unique needs and it is proper that her participant’s plan be tailored to those needs. It may be the case that a participant with different needs could accept a fully trained dog from a large organisation like Assistance Dogs Australia without that training needing to be tailored, but that is not the nature of the Applicant’s situation.
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.
There is no basis upon which to conclude that the legislation precludes inclusion, in the Applicant’s participants plan, for the sourcing and training of a dog, even where the funding may pre-date the delivery to the participant of the qualified dog as the “final product”. The scheme expressly allows for the support, in this case being all things necessary to produce an assistance dog for a participant, to be funded under the scheme. Indeed, the Act requires reasonable and necessary supports to be funded, subject to the particular considerations identified (in this case) in subsections 34(1)(a) to (d) of the NDIS Act.
Subparagraph 34(1)(a): Will the support assist the Applicant to pursue the goals, objectives and aspirations included in her statement of goals and aspirations?
The Respondent conceded that an assistance dog, once fully trained and qualified, would be capable of assisting the Applicant to meet her goals. As one of those goals is to have access to an assistance dog, and the Applicant has benefitted significantly from such a support in the past, it is not seriously in dispute that the criteria in subparagraphs 34(1)(a) of the NDIS Act would be met for the Applicant to access the support of an assistance dog.
The Applicant’s goals also include improvements to her physical safety, both at home, including in her shower, and outside in the community. The evidence demonstrates that an assistance dog could limit the Applicant’s fall risk whilst at home, including whilst showering, by retrieving dropped items for her and by providing support to activate a distress alarm if she were to fall at home.
The Applicant’s engagement in the community is an essential part of the short and medium to long-term goals expressed in her plan. The evidence of several medical witnesses who gave evidence in support of the Applicant is described earlier in these reasons. The tenor of their evidence was that the Applicant’s mobility has significant limitations which causes increased susceptibility to at home risks. The Tribunal is satisfied that an assistance dog would contribute to the elimination of such risks and have a positive influence on the Applicant’s independence, mental support and confidence.
The Respondent has not seriously disputed any evidence provided by these medical witnesses with respect to the Applicant’s medical condition nor the impact it has on her daily life, community participation and mental health[56] and the Tribunal accepts those conclusions drawn by these medical and allied health professionals. Accordingly, the Tribunal finds that the requirements of subparagraph 34(1)(a) of the NDIS Act are met.
Subparagraph 34(1)(b): Will the support assist the Applicant to undertake activities, so as to facilitate her social and economic participation?
[56] Respondent’s Statement of Facts, Issues and Contentions, 27 August 2020, paras 31, 32, 41.
Overwhelmingly, the expert evidence before the Tribunal established that the Applicant has the kind of significant limitations on her mobility and agility that people without LEMS do not. These limitations are exacerbated by the symptoms of her neuropathy. Ample evidence was provided by the Applicant, and unchallenged by the Respondent, in relation to the types of social and economic participation that would be better facilitated by the Applicant’s access to an assistance dog. The Applicant undertakes voluntary work with her local Salvation Army Church and provides welfare advice to those being supported by the Church. The Applicant gave evidence that, when undertaking her regular community activities, she did not wish to be constantly accompanied by a human carer.
The Tribunal considers that the Applicant’s social and economic participation includes her community activities with her Church, and the welfare services she voluntarily provides. Her physical limitations challenge her mobility and balance and this, in turn, challenges her confidence. The Applicant frequently drops items which she seeks to retrieve herself, as she is understandably reluctant to repeatedly engage human carers in such tasks. This movement leads to instability and fall risks. The evidence demonstrates that an assistance animal performing retrieval tasks can limit such risks and heighten independence and confidence is accessing the places where the Applicant’s social and economic participation occurs. Accordingly, the Tribunal considers that the requirements of subparagraph 34(1)(b) of the NDIS Act are met.
Subparagraph 34(1)(c): does the support 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?
It would appear that there are no comparable supports which would achieve the same outcome for the Applicant at a substantially lower cost. Based on the evidence, the Tribunal find that an assistance animal will have a working life, on average, of eight years, such that the support will substantially improve the life outcomes for, and be of long-term benefit for, the Applicant. The Tribunal is satisfied that an assistance animal will be of long-term benefit to the Applicant as it will likely reduce her need for carers, including overnight, in her own home environment.
Weighing all of the evidence, the Tribunal finds that provision of an assistance dog, including the costs of identifying, training and qualification, will enable the Applicant to undertake activities of daily living within her home and the grounds of her property which are benefits that go directly to her independence and to her sense of self-worth, in terms of her ability to care for animals and for the others in her household. Accordingly, the Tribunal finds that the support represents value for money in that the costs are reasonable, relative to both the benefits achieved and the cost of alternative support.
Subparagraph 34(1)(d): will the support be, or likely to be, effective and beneficial having regard to current good practice?
The Respondent accepts that subparagraph 34(1)(d) of the NDIS Act is met. The evidence overwhelmingly supports that provision of an assistance dog, will be, or is likely to be, effective and beneficial for the Applicant having regard to current good practice. Accordingly, the Tribunal finds that subparagraph 34(1)(d) is met.
Subparagraph 34(1)(e) and (f):
There were no submissions before the Tribunal to suggest that the support was not reasonable, taking account of what families, carers and networks might reasonably provide or that the support was more appropriately to be funded or provided by other than the NDIS.
Subparagraph 34(2): the Rules
Part 5 of the Rules includes general criteria for supports and specifies which supports will not be funded or provided. Relevantly, rules 5.1 and 5.2 provide as follows:
General criteria for supports
5.1A support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
(b)it is not related to the participant’s disability; or
(c)it duplicates other supports delivered under alternative funding through the NDIS; or
(d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
Mortimer J in McGarrigle, with respect to the Rules, states as follows:[57]
[43] 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.
[57] McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [43].

The only issue advanced at the hearing by the Respondent in relation to the Rules, was the duplication point, which the Respondent accepted would not be relevant if the Tribunal did not accept the Respondent’s characterisation of the identification, training and registration of an assistance dog as the funding of a “future support”. For completeness, the uncontroverted evidence in the report of Michaela Grant, Occupational Therapist[58] was that an assistance dog was most likely, over time, to reduce the Applicant’s reliance on other funded supports. Like capacity building in carers, there may be some duplication during the process of obtaining the support, but there is no suggestion in the evidence before the Tribunal of duplication of the kind contemplated in Rule 5.1.
[58] Exhibit 2, Supplementary T-Documents, A7, p. 22.
It is worth noting that, in the Applicant’s case, an assistance dog is not a proposed replacement for human carers or physical supports. Rather, the Applicant seeks a level of independence, confidence and engagement with her physical surroundings and her community that cannot be achieved through other supports. Her sworn evidence of her lived experience of her previous assistance dog, Zac, demonstrated that the Applicant enjoyed enhanced quality of life as a result of the physical and psycho-social support, and the resultant overcoming of what, as a result of her disabilities, would otherwise be barriers between the Applicant and her goals. The Tribunal is satisfied that funding for an assistance dog is not inconsistent with the Rules.
Operational Guidelines
To the extent that they are not inconsistent with the Rules or the NDIS Act, the Operational Guidelines need to be considered in their entirety.
Part 14 of the Operation Guidelines deals expressly with assistance animals. Relevant to this review, Clause 14.2 provides that, “When funding an assistance animal, funded supports include the following: a suitable and qualified animal, inclusive of associated participant assessment and provider incurred animal training costs” together with maintenance costs. Clause 14.6 is entitled ‘Will the NDIA provide funding to train a dog before it has become a qualified assistance animal?’ and refers to a report, or study, undertaken by La Trobe University (date 7 August 2019, exhibit 7) that was entitled “NDIS participant-trained assistance dogs”. The Clause provides that, based on the findings in that report, the “NDIA will not generally provide funding for a dog before it has become an assistance animal”. As the study relates to participant-trained animals, it is reasonable to infer that the whole of Clause 14.6 is intended to apply only to the animals of participants, who either train those animals themselves or engage a trainer to train such animals. However, the Clause further states, without the same qualification with respect to participant training, “…the NDIS does not fund a provider to supply a dog as an NDIS support until they are fully trained and qualified assistance animals.”
The Tribunal is to consider firstly the provisions of the NDIS Act and the Rules, then, if not inconsistent, will consider the Operational Guidelines. There appears to be an internal inconsistency within Part 14 of the Operational Guidelines, as Clause 14.2 makes clear that the training of an animal can be funded, and Clause 14.6 appears to state that an animal cannot be funded until it is trained. The effect of this appears to be an expectation that a source outside the scheme is responsible for funding a support, which would defeat the purpose of the statutory scheme. Very clear and consistent language would be needed in order to give effect to such an unlikely outcome, and one which is inconsistent with both the principles of the scheme and the express functions granted to the Respondent under that scheme. Section 34 is inclusive in its approach to supports that are reasonable and necessary. Further, the Act requires a flexible, tailored and appropriate response to each participant’s needs. Therefore, it is difficult to reconcile the binding provisions of the NDIS Act with this inconsistent and confusing aspect of the Operational Guidelines.
The Operational Guidelines state that “When funding an assistance animal, funded supports include the following… a suitable and qualified animal, inclusive of associated participant assessment and provider incurred animal training costs” together with maintenance of the animal. In this regard, this part of the guideline is not inconsistent with chapter three of the NDIS Act and can be followed.
Clause 14.6 of the Operational Guidelines is subject to the word “generally”, indicating that there may be particular cases where an individual would require funding before the assistance dog was fully trained. The Tribunal observes that the compelling factual case in support of the Applicant’s need for an assistance dog, together with the absence of any alternative proposal for funding the training of such a dog, combine to take this case outside the ordinary run of cases such that it would not be appropriate to apply any limitation sought to be imposed by Clause 14.6.
Taking into consideration all of the matters canvassed above, the Tribunal finds the aspects of the Operational Guidelines to which reference has been made, insofar as those guidelines suggest a limitation on the timing of funding for training of an assistance animal, to be inconsistent with the Rules or the NDIS Act. It is unclear, in any event, that those parts of the guidelines were intended to apply to training of assistance animals other than by participants. The Tribunal will not, therefore, have regard to those parts of clause 14.6 of the Operational Guidelines that seek to limit the mechanism for funding under consideration.
Other matters
For completeness, subparagraph 3(3)(b) of the NDIS Act requires regard to be had to the need to ensure the financial sustainability of the National Disability Insurance Scheme. In addition, subparagraph 4(17)(b) sets out:
17It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:
(a)the progressive implementation of the National Disability Insurance Scheme; and
(b)the need to ensure the financial sustainability of the National Disability Insurance Scheme.
There was no evidence before the Tribunal and no submissions made regarding the financial sustainability of the National Disability Insurance Scheme, other than those already dealt with in relation to the “threshold” issue.
CONCLUSION
For the reasons set out above, the Tribunal is satisfied that funding to enable the identification, training and qualification of an appropriate assistance dog for the Applicant meets the requirements of a reasonable and necessary support as defined in the NDIS Act.
DECISION
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.

I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Member Buxton.

.......................................................................
Associate
Dated: 2 February 2021

Dates of hearing: 3 and 4 December 2020

The Applicant: TYKL, by Microsoft Teams

Solicitor for the Respondent:

Counsel for the Respondent:

Ms Clovelly Broad, by Microsoft Teams

Ms Penelope Abdiel, by Microsoft Teams

[2021] AATA 135

2 February 2021

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