Uthenwoldt and National Disability Insurance Agency
[2024] AATA 148
•8 February 2024
Uthenwoldt and National Disability Insurance Agency [2024] AATA 148 (8 February 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s):2021/9351
Re:Tynan Uthenwoldt
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:The Honourable Pru Goward AO, Senior Member
Date:8 February 2024
Place:Sydney
Pursuant to subsection 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and remits the matter to the Chief Executive Officer of the National Disability Insurance Agency in accordance with the following direction:
(a) The decision is remitted to the Respondent for the temporary provision of sole residency SDA, at the agreed level of Improved Liveability. During this period, the Applicant is to be provided with high intensity support worker assistance with capacity building while a search for a suitable co-resident is undertaken.
(b) When a suitable SDA co- residency is established, the Applicant is to be provided with 1:1 Intensive support 16 hours per day, with additional overnight support for eight hours per day.
.........................[SGD]..............................................
The Honourable Pru Goward AO, Senior Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME - reasonable and necessary supports - Specialist Disability Accommodation - single occupancy - shared accommodation - value for money - harm to the participant and risk to others - decision under review set aside and remitted with direction
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43(1)(c)(ii)
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 33, 34National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
CASES
Beezley v Repatriation Commission [2015] FCAFC 165
Boicovitis and National Disability Insurance Agency [2022] AATA 204
Briginshaw v Briginshaw (1938) 60 CLR 336
Kennedy and National Disability Insurance Agency [2022] AATA 265
McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121
McLaughlin and National Disability Insurance Agency [2021] AATA 496
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
National Disability Insurance Agency v WRMF (2020) 378 ALR 449
SECONDARY MATERIALS
National Disability Insurance Agency, Our Guidelines – Including Specific Types of Supports in Plans Operational Guidelines (Web Page) < FOR DECISION
The Honourable Pru Goward AO, Senior Member
8 February 2024
INTRODUCTION
Mr Tynan Uthenwoldt (the Applicant) is a 33-year-old man who is a participant in the National Disability Insurance Scheme (the Scheme) on the basis of his autism spectrum disorder, severe intellectual disability and his Klippel-Trenaunay-Weber syndrome. He is noted to be non-verbal and has an anxiety disorder.
The Applicant’s NDIS Plan commenced on 28 July 2021 and has been extended several times. The Plan includes several supports which are not in contention and Specialist Disability Accommodation (SDA) at the level of Improved Liveability, house, two residents, VIC- Ballarat.
On 15 October 2021, the Applicant requested internal review of his plan under s 103 of the National Disability Insurance Scheme Act 2013, (the Act), and the original decision was confirmed by a delegate of the CEO of the National Disability Insurance Agency (the Respondent) on 3 November 2021. This is the decision under review. The delegate found that the requested support of supported independent living (SIL) at a support ratio of 1:1 and single occupancy, Robust design, was not reasonable and necessary. That is, it was not reasonable and necessary for the Applicant to live alone. The Applicant no longer seeks SDA, Robust, but agreed to accept SDA Improved Liveability, so the design category is no longer at issue in this decision.
On 2 December 2021, the Applicant lodged an application for review with the Administrative Appeals Tribunal (the Tribunal). The decision was remitted several times under s 42D of the Administrative Appeals Tribunal Act 1975 (the AAT Act) to ensure the Applicant received ongoing support, but the decision under review remains that of 3 November 2021.
RELEVANT SECTIONS OF LEGISLATION
S 3 (1) of the Act, providing the objects of the Act, which include, inter alia:
(a) to provide reasonable and necessary supports, including early intervention supports, for participants in the NDIS launch (s3(1)(d));
(b) to enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports (s3(1)(e)); and
(c) to facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability (s3(1)(f)).
Paragraph 3(3)(b) of the Act provides that, in giving effect to the objects of the Act, regard is to be had, inter alia, to the need to ensure the financial sustainability of the NDIS.
S 33 of the Act, which requires a participant’s plan to include a statement of participants supports and…the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme.
This, in turn, requires the CEO (of the Agency) under s 33 (5) to:
(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 the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; 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.
The criteria in s 34 (1) of the Act is central to any decision about the funding of supports and provides:
(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 National Disability Insurance Scheme rules may prescribe methods or criteria to be applied or matters to which the CEO is to have regard, in deciding whether he or she is satisfied as referenced in s 34 (1) (a) - (f).
Part 5 of the Rules sets out general criteria for supports and specifies supports that will not be funded or provided. It provides:
General criteria for supports
5.1 A support will not be provided or funded under the NDIS if:
(a) it is likely to cause harm to the participant or pose a risk to others; or
(b) it is not related to the participant’s disability; or
(c) it duplicates other supports delivered under alternative funding through the NDIS; or
(d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b) costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.Supports that will not be funded or provided
5.3 The following supports will not be provided or funded under the NDIS:
(a) a support the provision of which would be contrary to:
(i) a law of the Commonwealth; or
(ii) a law of the State or Territory in which the support would be provided;
(b) a support that consists of income replacement.
SDA RULES
Parts 1, 2, and 3 of the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (SDA Rules) are made for the purposes of ss33(7), 34(2), 35(1) and 209(2A) of the Act.
Part 2 of the SDA Rules sets out the matters to be determined by the CEO in respect of each eligible participant, including the building type, design category and location of the SDA.
For the purposes of determining the appropriate building type, Rule 16 requires the CEO to have regard to the following matters:
(a) the eligible participant’s preference, if the preference can be established and it aligns with the eligible participant’s statement of goals and aspirations;
(b) the features of the building type in relation to the eligible participant’s needs;
(c) the support model that is more appropriate for the eligible participant, having regard to the eligible participant’s needs and whether immediately available or constant person‑to‑person support is required;
(d) the eligible participant’s support needs;
(e) whether the building type represents value for money in that the costs would be reasonable, relative to both the benefits achieved and the cost of alternatives;
(f) the extent to which the building type would facilitate social and economic participation, including how the building type may impact on:
(i) the eligible participant’s ability to engage in the life of the household and community; and
(ii) the dynamics of the household, including the eligible participant’s ability to share with others and build relationships;
(g) the extent to which the building type facilitates past, established or planned connections or the continuation of established connections, in particular cultural and community connections;
(h) the extent to which the building type increases, reduces or mitigates the risks to the eligible participant and others, having regard to the eligible participant’s response to risk and the interaction of the eligible participant with the environment;
(i) the extent to which the building type improves the life stage outcomes for, and be of long‑term benefit to, the eligible participant;
(j) the extent to which the building type impacts on the eligible participant’s capacity or capabilities, including:
(i) whether it alleviates the impact of the eligible participant’s impairment on the eligible participant’s daily functioning; and
(ii) whether it enhances the eligible participant’s skill development, in particular independent living skills; and
(iii) whether it increases the benefit and effectiveness of supports, other than specialist disability accommodation, for the eligible participant’s skill development, in particular independent living skills; and
(iv) whether it enhances the opportunity for a move to accommodation other than specialist disability accommodation, or to lower cost specialist disability accommodation, in particular through a transition period with intensive capacity‑building supports;
(k) the extent to which the building type facilitates or sustains informal supports and the extent to which those supports reduce the cost of other supports;
(l) the extent to which the building type facilitates or hinders the provision of other supports required by the eligible participant;
(m) the extent to which the building type facilitates access to other support or specialist services required by the eligible participant and which are not funded or provided through the National Disability Insurance Scheme
For the purposes of determining the appropriate SDA design category, Rule 17 applies, requiring the CEO to have:
regard to the specific needs of the eligible applicant
and to
give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities (CRDP).
BACKGROUND
The Applicant has lived in Ballarat, Victoria, with four other NDIS participants in Melba Support SIL accommodation, described as a group home, since 2011. He had a history of physical violence towards co-residents, and, in his most recent group home, one female co-resident. He had also absconded from care.
Although the Applicant attended a day program, including swimming, he was otherwise solitary. He played with his trains or watched television in his room and reportedly sought to avoid other residents. He also ate in his room to avoid being in the presence of co-residents.
The Applicant visited his family regularly and they remain actively involved in his life. He had a history of violence towards his younger sister, who is also a participant in the Scheme, but their relationship is now more congenial and, according to the Applicant’s father, only infrequently aggressive and requiring parental intervention.
Police have attended incidents at the Applicant’s group home involving the Applicant and the other female resident. It is unclear whether the violence reported was the result of the Applicant’s fear or aggression, described by various witnesses as Flight or Fight responses. The family of the co-resident, who has consistently been his target over several years, has reportedly expressed concerns about her safety and sought intervention.
CONTENTIONS
At the outset, the Tribunal notes that although the Respondent’s and Applicant’s Statement of Facts, Issues and Contentions (‘SFIC’s) identified the preferred level of house design for the Applicant to be robust, throughout the hearing and in closing submissions, the preferred level of housing, Improved Liveability, was referenced by both sides. No submissions about which level was to be preferred were made. Accordingly, the Tribunal accepts that Improved Liveability is the level of housing preferred by the parties, and, since no further submissions were made regarding it, the Tribunal will duly note this in its decision.
The Applicant contended that sole occupancy SDA, Improved Liveability, represented value for money, so satisfying the requirements of s 34 (1) (c). Particularly, that it would reduce his behaviours of concern, such as aggression and self-isolation, and minimise the use of the restrictive practices to which the Applicant is currently subjected. The Applicant also contended there was no alternative support available which would enable this, as also required by s 34(1) (c).
The Respondent contended that the alternative to sole occupancy was shared accommodation with one other resident and that this was value for money, thus meeting the requirements of s 34 (1) (c).
The Applicant contended that, in conjunction with the requested level of SDA, it was reasonable and necessary that the Applicant be provided 24/7 1:1 SIL support, and that this also satisfied s 34 (1) (c). The request was for sixteen hours of 1:1 SIL and eight hours of Inactive Overnight Support. Further, the provision of 1:1 SIL would assist with capacity building.
The Applicant also contended that sole occupancy was more likely to satisfy the requirement of s 34 (1) (b) to facilitate his social and economic participation than the dual occupancy proposed by the Respondent.
The Respondent contended that the requested supports (sole occupancy SDA with accompanying 1:1 SIL 16 hours per day) did not meet all the criteria in s 34(1) of the Act and Rule 5.1, and so should not be included in the Applicant’s Statement of Participant Supports, SOPS.
The Applicant contended that SDA Rule 16 and Rule 3.1 of the Support Rules were not met for dual occupancy, consistent with s 34 (1) (c) of the Act. In particular, the Applicant contended that Rule 16, specifically subsections (a), (f), (g) and (h) were not met. The Applicant also contended that the relevant Support Rules for other subsections of s 34 (1) of the Act were met for single occupancy. In order to avoid repetition, the Tribunal intends to refer to evidence relating to these Rules, as they have been identified by the Applicant, at relevant points in its consideration of contentions based on sections of the Act.
The Respondent further contended that the provision of the supports claimed by the Applicant would negatively affect the financial sustainability of the NDIS (ss 3(3) (b) and 4 (17) of the Act, Rule 2.5 of the Rules.
Regarding the burden and standard of proof, the Respondent contended that the Tribunal must be satisfied of all the criteria in the Act, and be “positively satisfied”, as set out in Briginshaw v Briginshaw (1938) 60 CLR 336. This required the Applicant to put forward evidence and information sufficient to satisfy or persuade the Tribunal, as set out in Beezley v Repatriation Commission [2015] FCAFC 165 and that if insufficient probative evidence were provided, the Tribunal could not be satisfied the criteria for s 34 (1) (c) were met. Similarly, National Disability Insurance Agency v WRMF (2020) 378 ALR 449 (‘WRMF’) describes the decision-making process as a “fact-intensive exercise” while Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (‘Li’) also observes there is scope for “decisional freedom”.
The parties did not dispute the Applicant’s high level of disability support needs and the unsuitability of his accommodation in a group home. For that reason, the Respondent offered specialist disability accommodation, SDA, for two residents, with high intensity support worker assistance for most of the day (Respondent’s final submissions). The Applicant considered this was too great a risk to the safety of both residents and that the Applicant was more likely to develop living skills if he were in a single resident SDA with, necessarily, 24/7 1:1 SIL.
THE ISSUE
The issue for the Tribunal is whether the provision of a single residency SDA, Improved Liveability, with 1:1 SIL, High Intensity support for 16 hours per day, are reasonable and necessary supports for inclusion in his current SOPS, satisfying the requirements of s 34 (1) of the Act.
EVIDENCE RELIED UPON
The Tribunal has had regard to various material before it, including:
(a)Applicant’s Statement of Facts, Issues and Contentions dated 10 October 2023
(b)Respondent’s Statement of Facts, Issues and Contentions dated 7 November 2023
(c)Applicant’s amended Statement of Facts, Issues and Contentions and bundle of documents filed on 30 November 2023
(d)Hearing Tender Bundle filed on 1 November 2023
(e)Further Statement of Ms Kylie Brooks filed on 4 December 2023
(f)Applicant’s closing submissions dated 3 January 2024
(g)Respondent’s closing submissions dated 3 January 2024
ORAL EVIDENCE
The hearing in this matter was held on 4 and 11 December 2023 by audio-visual link. The Tribunal heard oral evidence from the following witnesses:
a)Ms Anja Hoogendijk, Occupational Therapist
b)Mr Craig Uthenwoldt, Applicant’s father
c)Ms Kylie Brooks, House Manager
d)Ms Kathleen Dennis, behavioural support practitioner
e)Ms Phi Van Houston, Independent Occupational Therapist
CONSIDERATIONS
The parties have agreed that the Applicant’s current living arrangements are not suitable. They disagree over what constitutes a suitable living arrangement; sole or dual residency. The Applicant contends he is:
Unable to accommodate the desires or needs of a co-resident (closing submissions)
Whereas the Respondent, relying upon the assessment of the OT, Ms Houston, contends:
The Applicant has the ability to live with another person when receiving high levels of support (closing submissions).
The Applicant’s Statement of Facts, issues and Contentions reported that the Applicant had a pattern of aggression towards other people with whom he lived, as well as to staff members, and also self-seclusion in his room; these constituted his behaviours of concern. The Applicant contended both these behaviours of concern were driven by his “fight or flight” response to the presence of others. On this basis, the Applicant concluded there was no suitable alternative support to Sole Occupancy SDA (p27 SFIC).
The Respondent contended there was insufficient evidence to either confirm the frequency of his targeted aggression in the past or the likelihood that he would become aggressive towards a co-resident in future, and therefore that a co-residency constituted better value for money, so satisfying s 24 (1) (c) of the Act.
The Applicant relied upon the evidence of the Applicant’s father, the house manager, Ms Kylie Brooks and the behavioural support worker, Ms Kathleen Dennis, as well as the OT, Ms Anja Hoogendijk, who confirmed the Applicant’s history of apparently triggered aggression.
Ms Hoogendijk wrote of the Applicant’s:
“extensive history of…physically attacking other people in various settings…”
Ms Hoogendijk also noted a number of violent incidents in a Functional Behaviour Analysis report between January 2021 and February 2022, and in cross examination observed there were probably other incidents that the staff managed before they escalated and were reported. The Tribunal accepts that evidence and found Ms Hoogendijk to be a straightforward and insightful witness.
As Ms Hoogendijk told the Tribunal:
“There is a long history…it would have started when [the Applicant] was 19 years old of [the Applicant] targeting people that he perceives as weaker than himself in moments of distress”
And she agreed that if the Applicant was to live with another resident, it may take only once incident or exchange to have a lasting impact, even something “entirely inadvertent”.
She described the Applicant as having a very narrow window of tolerance.
Under cross examination, Ms Hoogendijk agreed she had not observed any aggressive behaviour herself but based these assertions on reports provided by his house manager, his father and his behaviour support practitioner. The Tribunal finds that her consideration of the experience of these other witnesses to be a sound basis for her conclusions.
The house manager, Ms Brooks, told the Tribunal she had directly observed the Applicant to have grabbed another resident:
“while she was on the toilet…and he actually knocked her off the toilet, so it’s very aggressive”.
Ms Brooks also confirmed that police had been called to the home but that, to date, no charges had been laid against the Applicant. As she told the Tribunal:
“we had to call the police …but, of course, it can’t happen”.
The Applicant’s father also confirmed he was told that police had been called on occasion because of the Applicant’s aggression towards the other resident. The Respondent acknowledged in opening submissions that the Applicant was aggressive towards other residents, but also said there was sufficient evidence that the support workers were able to “redirect these behaviours such that they are an infrequent occurrence”. Indeed, the Respondent noted that an offer for one-to-one Intensive support for 13 hours a day had been made, for the stated purposes of assisting with the Applicant’s activities of daily living and redirecting behaviours of concern.
The Respondent submitted (in closing submissions) that evidence of the frequency of aggression to the co-resident was “inconsistent” and that despite these attacks commencing “approximately 11 years ago”, there had not been any attempts to relocate him.
The Tribunal notes that several witnesses said that wherever the Applicant resided, he would identify someone to target, but the Tribunal accepts the Respondent’s point that the aggressive behaviour towards one resident was tolerated until recently; that is, it is inferred, was not of concern. However, Ms Brooks told the Tribunal that an appreciation of the seriousness of the Applicant’s aggression only began when the Applicant transferred to the NDIS and a new service provider, Melba, took over the running of the group home. At that time, a manager told her the Applicant’s behaviour was:
“similar to domestic violence”.
From then on, the Applicant’s behaviour appears to have become a safety and (potentially) a legal risk for the support service, Melba. The Tribunal accepts that the advent of the new Scheme led to a greater level of awareness about issues such as the safety of co-residents and that the previous residential care service, as was evident from Ms Brook’s observation, may not have had the capacity to concern itself with the Applicant’s aggression and self-isolation.
The Respondent submitted that in the circumstances of inconsistent evidence:
There are a number of other lower cost alternatives that may provide the same outcomes proposed in sole occupancy SDA at a similar or lower cost.
The Tribunal finds there is substantial agreement that the Applicant’s aggression, however frequent, had been sufficiently serious to require some kind of relocation, as acknowledged by the Respondent in its own plan and affirmed in the decision under review of 3 November 2021. The Tribunal also accepts that other lower cost alternatives, such as dual occupancy, should be considered as well as single occupancy.
The Tribunal finds, based on the evidence provided, that the Applicant’s aggression and self-isolation are the critical considerations when deciding if he should live with one other resident, or alone.
The Tribunal notes the Applicant has relied on SDA Rule 16 (a), requiring the decision maker to have regard to the Applicant’s preference, which, consistent with the goals he identified in his plan of 28 July, 2021, is to live alone, consistent with Boicovitis and National Disability Insurance Agency [2022] AATA 204 and Kennedy and National Disability Insurance Agency [2022] AATA 265. The Tribunal also accepts the Applicant’s acknowledgement that this preference alone is “not determinative” and considers other sub sections of SDA Rule 16, including (h), which concerns the impact of the accommodation arrangement on the risk to the Applicant and to others, are also relevant. This sub section received significant attention during the hearing.
For completion, Rule 16 (h) outlines:
the extent to which the building type increases, reduces or mitigates the risks to the eligible participant and others, having regard to the eligible participant’s response to risk and the interaction of the eligible participant with the environment;
The Respondent’s proposal was that a suitable co-resident be identified and the Applicant then reside with that person.
The Respondent relied upon evidence that the Applicant can tolerate sensory triggers, such as when he is at the swimming pool or watching television. On this basis, the Respondent proposed that an activity program and the provision of high intensity support which have been offered by the Respondent and to be provided by:
support workers who have higher levels of training
would enable him to build his tolerance to sensory triggers and live beneficially in a co-residency. The Tribunal notes this would meet some of the requirements of SDA Rule 16, such as 16(i).
-the extent to which the building type improves the life stage outcomes for and be of long-term benefit to, [the Applicant].
The Applicant relied upon the evidence of Ms Hoogendijk, who considered it would be unlikely that a co-resident could be found who would not trigger him in some way, leading to Fight or Flight behaviours such as isolating himself in his room or becoming physically aggressive. In examination, she agreed that if the Applicant were to live with another resident, that it may take only one incident or one encounter or exchange to then have a very lasting impact on him. She also told the Tribunal:
“I formed the opinion that finding a suitable co-resident is a very simplistic question to actually ask… because it does not reflect the complexity of [the Applicant’s] individual needs. The question seems to only consider [the Applicant’s] risk towards others and disregards the environment required to ensure his capacity building and quality of life”
And that:
“even if he were to choose somebody that appears stronger than him, that person would still be unpredictable with regards to, you know, [the Applicant’s] perception of that person”.
Kathleen Dennis, the Applicant’s former behavioural support practitioner, despite supporting a co-residency trial, cautioned against doing this when she told the Tribunal:
“I think that if you were to put somebody in there, you would be placing that person as significant risk … We don’t know what he’s feeling when he is triggered by certain sounds or, you know, light, or the sounds of certain people. We don’t know. And I think that it’s certainly not something I would want to risk. Not until I knew that [the Applicant] had developed some self-regulation skills and that he wouldn’t react offensively.”
Ms Hoogendijk said under cross examination that the Applicant would be a risk to his co-resident and himself without capacity building supports but agreed that his current self-isolation was the result of both the number of residents he lived with and the lack of support to engage in activities outside his room. When pressed however, she said that he would not have been able to respond to capacity building supports in his current living circumstances because:
“behaviours of concerns occur because the person is distressed. And if a person is distressed, they can’t learn”.
Both Ms Hoogendijk and Ms Dennis emphasised the importance of providing a safe environment for his ability to learn new skills. They considered that his heightened Fight or Flight response prevented him from learning new skills unless in a safe environment, and instead provoked both aggression and avoidance. The Applicant contended he was more likely to benefit from a single occupancy, consistent with McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121 (‘McGarrigle’).
The Respondent considered that sole residency was being requested as an alternative to engaging in capacity building supports and relied upon the evidence of Ms Houston, who assessed the Applicant over a two-hour period in his group home. She was asked if he could safely live with housemates, following a matching process, and wrote in her report:
Yes. In addition to matching housemates, it is also important to have different activities on offer…Environmental design will have an important influence as it can promote positive or negative interaction depending on the layout as well.
Ms Houston did not express a view in her report on capacity building supports which might facilitate co residency, although she said that another resident might:
assist with increasing his capacity, especially if the other participant is learning the same task/activity.
During the hearing, Ms Houston recognised that there would be difficulties finding an appropriate co-resident who was also eligible for SDA. She provided several hypothetical examples of suitable residents which she agreed, in cross examination, might be difficult to find, especially in a regional town in Victoria. She was also asked about single residency and said that living alone would be:
“creating a dependency…on just one person”.
The Tribunal finds, considering the evidence, that there is little support for either single or dual occupancy SDA as the correct or preferrable decision, given the Applicant’s long history of residency in a group home and the essentially hypothetical nature of the proposition for either residency. The Tribunal considers the benefits to the Applicant are not clearly made out on the evidence, as required by McGarrigle. However, there is very strong evidence that dual occupancy was likely to fail, that is, lead to the Applicant continuing to display aggressive behaviour and self-isolation, if the other resident were not carefully matched to the Applicant. Furthermore, that he needed to develop a skill base which would enable him to manage his behaviours of concern should the other resident somehow provoke him. The Tribunal also notes there is no consistency between the witnesses about the Applicant’s preferrable living arrangement; the Applicant’s father, Ms Brooks and Ms Hoogendijk believed sole occupancy would provide a safe environment, while Ms Houston opposed it and Ms Dennis said of sole occupancy:
“It’s not going to enhance his independence and rewire (indistinct) over time. I think the man deserves an opportunity to at least be in an environment where it’s tried.”
Ms Houston also cautioned against beginning with sole occupancy and transitioning to dual occupancy when she told the Tribunal that this would not be a natural progression and it is:
“often harder for people to step backwards”.
Ms Houston did not expand upon her reasoning and accordingly, the Tribunal finds her opinion to be of limited value in this instance.
The Tribunal considers in these circumstances, some “decisional freedom” is required, as considered in Li. There are risks with placing the Applicant in a sole residency and even were he to respond well to the less stressful environment, risks in being able to successfully introduce a well-matched co-resident. As Ms Houston observed, in her circuitous fashion, he may not leave his room more or enjoy the rest of the residence more once the novelty of his aloneness had worn off, and he may still respond aggressively to any co-resident, no matter how well matched (confirmed by Ms Hoogendijk). The likely benefits were necessarily hypothetical, dependent on assumptions about the Applicant’s response to his new residency.
The Tribunal accepts there are also risks with removing the Applicant directly to a co-residency. No expert witness was certain he would respond to the capacity building supports being provided by higher intensity support workers in these circumstances, although the Respondent considered that the Applicant’s ability to cope with his weekly day at the pool was some evidence of capacity. There was further doubt that he would be able to cope with the stress associated with a co-resident when it inevitably occurred. Again, the identified benefits of learning from, or enjoying, a co-resident were suppositions.
As the OT, Ms Houston, also outlined, there were further risks in removing the Applicant to a sole residency on a permanent basis; it would create great dependency on a small number of care workers, it may not lead to any increase in his ability to enjoy his house and it will have made no progress in enabling the Applicant to enjoy the company of other people. The behavioural support therapist, Ms Dennis, appeared to share those sentiments.
The Tribunal understands that much of the opinion provided by expert witnesses was necessarily qualified because of the complexity and profundity of the Applicant’s impairments and the absence of any contemporaneous evidence of his ability to live with either one other person, or alone. In circumstances such as these, where the benefits and costs of each option are difficult to determine, satisfying the requirements of s 34 (1) (c), value for money, is a difficult task. The Tribunal notes that self-evidently, a single occupancy with 16 hours per day of SIL 1:1 (high intensity) is more expensive than a dual occupancy with 13 hours per day of SIL 1:1 (high intensity) and three hours per day of SIL 1:2.
The legislation also requires that the Rules be applied, including SDA Rule 16 which concerns various aspects of SDA residency including the importance of not placing the Applicant or others at risk of harm (SDA Rule 16 (h)). The Tribunal finds, based on the evidence of the Applicant’s aggression, and for the same reasons which prompted the Applicant to seek sole residency and the Respondent to offer to remove him from the group home, there are safety risks to a co-resident which cannot be assumed away, even by careful matching. Moreover, none of the witnesses considered careful matching would be easily achieved, others considered it might not ever be achieved. There was also the risk, identified by Ms Houston, that the Applicant might remain isolated in his room in this co-residency.
The Tribunal considers the practical matter of the Applicant’s transition period must be part of this decision. Accepting the evidence of those witnesses who said that the matching process was likely to be difficult, and by inference not instantaneous, it is necessary to determine the Applicant’s living arrangements in the meantime. The Tribunal notes the Applicant’s preference for sole occupancy does not require any consideration of a transition period, and the Respondent was silent on it. Since it is clear that if the Applicant remained in his current group home while the quest for a co-resident was undertaken, both he and his current co-resident would remain at risk of aggression or self-isolation, the Tribunal concludes the current situation is not an option. The Applicant described his living arrangements as:
a constant state of hypervigilance because of the presence of his co-residents, which makes it impossible for him to build his capacity. He also subjects himself to seclusion, which significantly reduces his opportunities to learn and seek out soothing sensory experiences.
The Tribunal finds, on the evidence available, that it would be preferable for the Applicant to be temporarily placed in sole residency to reduce the immediate risk to the current co-resident of concern, and thereafter commence his capacity building while a suitable co-resident is being sought. The Tribunal accepts that the relocation of the Applicant to a co-residency constitutes better value for money, satisfying the requirements of s 34 (1) (c) for the obvious reason that it is cheaper to house two people under one roof, and may bring other benefits in future, but considers it would be unsafe to do so until the capacity building and matching are completed.
It is also necessary to ensure the Applicant has appropriate support in the eventual co-residency, that the co-resident is properly protected should aggression occur and that, if the co-residency does not result in better outcomes for the Applicant or his aggression continues, the co-residency be reviewed. As the Applicant submitted:
Even if closer engagement with allied health support was capable of improving [the Applicant’s] capacities and reducing his behaviours of concern as suggested by the Respondent, there is, very importantly, no evidence before the Tribunal as to how long that might take to achieve.
The Respondent has offered to provide 13 hours of 1:1 intense support to this Applicant, three hours of 1:2 shared support for him and his co-resident and eight hours of overnight support. Intensive 1:1 support would be provided for 13 hours a day. The Respondent established during the examination of witnesses that the Applicant spent many hours in his room at his preferred activities with no supervision being required, except when an unexpected problem, such as a remote control no longer working, occurred. On this basis the Respondent concluded that the Applicant could share a support worker with one other resident for three hours each day.
The Respondent also proposed that with intensive support, the Applicant would be less likely to attack a co-resident and be able to enjoy the rest of his residence, including, for example, eating at the dining table, instead of isolating himself in his room.
The Applicant, relying on the evidence of Ms Hoogendijk and Ms Dennis, challenged the provision of three hours of 1:2 support each day.
Ms Hoogendijk considered that the Applicant needed 1:1 support during the down times he spent in his room playing with his trains because:
“if there were a support worker allocated for more than one person, that support worker may be helping another person doing something else. And then if [the Applicant] dys- regulates, then you have no one there to support him”
Ms Hoogendjik’s concerns were echoed by the behaviour support practitioner, Kathleen Dennis. Although she supported a trial of co-residency she told the Tribunal that the three hours of shared support was something for the future, but not the immediate future:
“But I don’t think – right now, no I don’t. Because what would happen if Tynan were to become highly distressed and attacking – who is going to be looking after the other supported people? … It’s the impact on the other people as well. So the staff would be intervening with Tynan and that support person, and what happens to the others? Like I think it’s a recipe for disaster at this point”
It is also true that Ms Houston cautioned against the provision of 1:2 support for three hours a day; when asked her view on 1:2, she told the Tribunal:
“you’d then need to take into consideration the other participant. Because if they are high needs … Because … if you mismatch them then that’s [not] going to work. So it would need to be someone who has high capacity, or the equivalent to him but not lower in terms of…the needs level”.
In closing submissions, the Applicant summarised the evidence of witnesses about the safety risks as requiring that account need to be taken of:
“his safety and well-being and the safety and well-being of others who…would be required to live with Tynan under constant pain of inadvertently triggering a violent reaction from him”.
The Tribunal notes that the Respondent has committed to providing support at high intensity, which would, as the behavioural specialist, Ms Dennis, agreed, assist in removing restrictive practices and in developing the Applicant’s capacity to self-regulate his behaviour. In the circumstances of this support being provided in a co-residency, the Tribunal finds, based on the evidence available, that the intensive support be retained for 16 hours each day of 1:1 support, in addition to the agreed overnight support. The Tribunal finds this to be consistent with SDA Rule 16 relied upon by the parties.
The Respondent contended that regard is to be had to the financial viability of the Scheme as required by ss 3(3) (b) and 4 (17) of the Act, Rule 2.5 of the Rules. The Tribunal finds that transitioning this Applicant through single occupancy to a co-residency is more cost effective and beneficial for him that single occupancy. It also contributes to the financial sustainability of the scheme.
The Tribunal also finds, based on the evidence provided, that the risks associated with keeping the Applicant in his current group home outweigh the financial cost of placing him temporarily into sole-residency SDA. The Tribunal considers the evidence provided positive satisfaction of the functional impairments of the Applicant, consistent with McLaughlin and National Disability Insurance Agency [2021] AATA 496 and the consequent need to relocate the Applicant to a sole residency, at least temporarily. In these circumstances, the Tribunal can approve a requested support, qualified as a temporary support, consistent with WRMF, McGarrigle and Li. Indeed, the Tribunal notes a further aggressive incident in the group home carries financial, safety and ethical risks of its own. Similarly, while immediate co-residency might be cheaper for the Scheme, it too, carries considerable risk for this Applicant and his co-resident which the Tribunal has needed to reconcile.
CONCLUSION
The Tribunal concludes that the Applicant should be temporarily relocated to a single residency while he is provided with capacity building support and a suitable co-resident is identified. Once this is done, a co-residency, with 1:1 intensive support provided to the Applicant for 16 hours per day is to commence. The Tribunal concludes that identifying a suitable co-resident and achieving some capacity building will not be easy but that the safety of the Applicant and others should not, meanwhile, be compromised.
The Tribunal also notes it is open to the Respondent to review the Applicant’s progress and consider other options in a future plan.
DECISION
Pursuant to subsection 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and remits the matter to the Chief Executive Officer of the National Disability Insurance Agency in accordance with the following direction:
(a) The decision is remitted to the Respondent for the temporary provision of sole residency SDA, at the agreed level of Improved Liveability. During this period, the Applicant is to be provided with high intensity support worker assistance with capacity building while a search for a suitable co-resident is undertaken.
(b) When a suitable SDA co- residency is established, the Applicant is to be provided with 1:1 Intensive support 16 hours per day, with additional overnight support for eight hours per day.
80. I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Goward
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Associate
Dated: 8 February 2024
Dates of hearing:
Date final submissions received:
4 and 11 December 2023
3 January 2024
Counsel for the Applicant: Mr David Kelsey Sugg
Solicitor for the Applicant: Mr Peter Dickinson Solicitor for the Respondent: Ms Alexandra O'Grady
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