Vecchio and National Disability Insurance Agency

[2021] AATA 4565

Vecchio and National Disability Insurance Agency [2021] AATA 4565 (8 December 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2020/3764

Re:Daniel Vecchio

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:8 December 2021 

Place:Sydney

The decision under review is set aside and remitted to the Secretary pursuant to subsection 43(1)(c) with a recommendation to conduct a plan review, taking into account the Tribunal’s findings.

...................................[SGD].....................................

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – whether claimed supports are reasonable and necessary - whether supports are in accordance with NDIS rules and guidelines - decision under review set aside and remitted with directions

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 42D, 43

National Disability Insurance Scheme Act 2013 (Cth) ss 4, 33, 34

CASES

Holland and National Disability Insurance Agency [2021] AATA 92

Vecchio and National Disability Insurance Agency [2021] AATA 3510

QDKH and National Disability Insurance Agency [2021] AATA 922

QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189

SECONDARY MATERIALS

National Disability Insurance Scheme – Operational Guidelines – Planning Pt 3, cl 7

National Disability Insurance Scheme (Supports for Participants) Rules 2013 rr 5

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

8 December 2021 

1. The National Disability Insurance Scheme (‘the NDIS’) has been in operation for less than ten years. It is landmark social legislation dedicated to the idea that people with disability have the right to realise their potential for physical, social, emotional and intellectual development.[1] This is the first of a series of general principles guiding actions set out in section 4 of the National Disability Insurance Scheme Act 2013 (Cth) (‘the Act’). Other important principles in section 4 of particular relevance to the present case include:

   (2)  People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability…

   (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…

   (11)  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 community and in employment.

   [1] The Act, section 4(1).

2. The NDIS is administered by the National Disability Insurance Agency (‘the NDIA’) established under the Act.

   THE APPLICANT

3. Mr Daniel Vecchio (‘the applicant’) is profoundly deaf. He had a left ear Cochlear implant when he was 21. He is the youngest of three brothers, one of whom is also deaf.[2] He is a registered plumber and hopes to have his own business one day. His partner is also hearing impaired. They have two young children and rent a house near a train station. They communicate using Australian sign language (‘Auslan’).

   [2] Mr Anthony Vecchio is also a client of the NDIA: see Vecchio and National Disability Insurance Agency [2021] AATA 3510 (30 September 2021).

4. He holds a Plan under the Act. The NDIA is the respondent in these proceedings.

   THE APPLICANT’S CLAIM

5. Ms Melinda Vernon is an occupational therapist employed by Louise Dreyer Pty Ltd (trading as Full Life Occupational Therapy) (‘FLOT’), a company engaged by the applicant under a service agreement.[3]

   [3] TB17/52. I note that the Agreement is dated 28 February 2020, but that Ms Vernon acted for the applicant in relation to his NDIS claim prior to that date.

6. In late 2019, Ms Vernon interviewed the applicant and prepared two reports: a report entitled CCTV Camera with Motion Sensor Light: Assistive Technology Report dated 26 November 2019 (‘ESS Report’);[4] and a report entitled Simple Non-structural Home Modification and Assistive Technology Report dated 1 December 2019 (‘IVAS Report’).[5] The ESS Report recommends an external surveillance system using floodlights, closed circuit television (CCTV) and motion detection cameras, and the IVAS Report recommends a visual alert system for the interior of his home, to replace his existing interior alert system.[6]

   [4] H16/210.

   [5] H17/246.

   [6] The system now marketed as ‘VisualAlert^TM’.

7. The ESS Report authored by Ms Vernon recommended the following equipment:

   A Concord CCTV Security Camera System (CONCORD CDK8845P-A) ($799) with:

   a) motion light sensors using Pyroelectric InfraRed Sensors (PIR) and Thermal Detect Technology;

   b) an 8 channel 4K Ultra HD Digital Video Recorder with 2TB internal storage (upgradable to 6TB);

   c) 4 weatherproof 5 Megapixel Super HD cameras (expandable to 8 cameras) with a frame rate of 30fps (frames per second) and an IP66 rating for dust and liquid; and

   d) smart viewing and notification.

   Brilliant Lighting 30W LED Ranger 2 Security Flood Lights (with an IP65 weather resistant rating) with motion and Day/Night sensors ($114 each). [7]

   [7] See ESS Report: H16/215.

8. The IVAS Report recommended the following:

   A Custom-Made Visual and Vibrating Alerting System, with the following features:

   a) hardwired interconnection to multiple alarms: vibrating bed alarms, smoke alarms, front doorbell, baby cry alarms,

   b) a backup lithium battery, with a significant life span (providing 50-minute intervals of power for a duration of four days).

   c) LED light outlets in 6 locations of his home to ensure a direct line of sight in all areas of his home (including the external garage). These LED light strips are wired into the cornice of the ceiling. [8]

   [8] See IVAS report: H17/266.

9. According to Ms Vernon’s report, the ESS is estimated to cost $3,907.00, being $3,135 for equipment, the balance being made up of professional set up costs.[9] The IVAS is estimated to cost $12,431.14 (plus GST), being $8,593.14 for equipment, $2,680 for installation, and $1,158 for set up and training.[10]

   [9] H16/210, 215, 229.

   [10] H17/246, 277.

10. Neither the ESS nor the IVAS are funded under the applicant’s current plan. In these proceedings the applicant hopes to secure the inclusion of both systems in his current plan.

11. The ESS is for general use, while the IVAS is designed for those who are hearing impaired. The Tribunal was presented with a good deal of technical evidence relating to the mode of operation of these systems.

    PROCEDURAL CHRONOLOGY

12. On 3 February 2020, the applicant’s Statement of Participants Supports (‘the 2020 plan’) was approved under subsection 33(2) of the Act by a delegate of the Chief Executive Officer of the NDIA.[11]

    [11] T7/79.

13. On 23 March 2020, an NDIA officer sent an email to the applicant, and to Ms Vernon (who appears to have been acting as his representative at the time), about his request for a CCTV system with motion sensors, indicating that if he wanted a plan review, he should ask for a “s 100 review”.[12] On 26 March 2020, Ms Vernon, responded by email,[13] attaching a completed Application to Review Decision form,[14] and her Report dated November 2019.[15]  

    [12] T3/59. The approval of the Statement of Participant Supports under subsection 33(2) is a reviewable decision: see the Act, subsection 99(1) item 4, and section 100.

    [13] T4/60.

    [14] T4/61-69.

    [15] H16/210.

14. On 8 May 2020, an internal review officer (IRO) emailed the applicant to seek clarification of the supports he was requesting as part of the internal review.[16] On 12 May 2020, the applicant emailed back saying that “this email” was for the CCTV system and for the visual alert system (that is, for the ESS and the IVAS).[17] He attached the report relating to the ESS (but not the report relating to IVAS) along with the Application to Review Decision.[18]

    [16] T5/71.

    [17] T5/70.

    [18] T5/70.

15. The respondent asserts that the undated Application to Review Form was received for the first time by the NDIA on 12 May 2020.

16. On 14 May 2020, the applicant’s request was considered and refused by a different IRO,[19] on the basis that the requested ESS did not meet the “reasonable and necessary criteria under section 34 of the NDIS Act or Part 5 of the NDIS (Support for Participant) Rules 2013” (‘NDIS Rules’).[20] The IRO did not consider the IVAS request, despite the 12 May 2020 email from the applicant.[21] For some reason that is not clear to the Tribunal, the applicant’s request to include the IVAS in the review was not conveyed to the relevant IRO.[22] 

    [19] The decision was conveyed to the applicant by letter dated 14 May 2020: T1A/16.

    [20] T1A/15.

    [21] I note that the original request for review prepared by Ms Vernon did not refer to the visual alert system, and attached only the November 2019 CCTV report: T4A/64.

    [22] T5/70.

17. Around 8 June 2020,[23] the applicant requested an unscheduled plan review to consider the visual alert system, because “Review of Home Modifications request for Visualert System and installation – was not considered or included in recent NDIS plan (started on 3 February 2020)”.[24] In requesting the plan review he noted that this second child had been born in March 2020, and that he and his partner now had two young children under the age of two. He said that “Both parents are deaf therefore the parental responsibility of looking after 2 young children has heightened further”.[25] It appears that the plan review did not in fact take place.[26]

    [23] The date is unclear: T6A/77. A Report dated 26 November 2019 focused on the CCTV, and a separate report entitled Home Modifications Report dated 1 December 2019 related to the visual alert system.

    [24] T6A/76.

    [25] T6A/76.

    [26] Transcript, 16 September 2021, 39.

18. On 15 June 2020, Ms Vernon applied to the Tribunal on the applicant’s behalf for review of the IRO decision of 14 May 2020.[27] Ms Vernon provided an Application for Review of Decision (Individual) form signed and dated 15 June 2020.[28] She attached the section 100 decision letter and the ESS report. She did not attach the IVAS Report. 

    [27] T1/1.

    [28] T1/4

19. I note that the parties have had three case conferences during 2021.

20. I also note that on 4 February 2021, the applicant’s current plan (the 2021 plan) was approved under subsection 33(2) of the Act by a delegate of the Chief Executive Officer of the NDIA.[29] There is a very minor change in funding. The 2021 plan provides total funding of $31,185.67, as opposed to $31,156.81 in the 2020 plan.[30]

    [29] H43/641.

    [30] Core supports funding of $21,345.22, and capacity building supports funding of $9,840.45, making a total of $31,185.67: H43/651.

21. In summary, the Tribunal has before it an application for review relating to a decision by the respondent’s delegate not to approve as part of the 2020 plan the external CCTV system (‘the ESS decision’). The Tribunal is also asked to approve the specific IVAS recommended by Ms Vernon.

    HEARING AND EVIDENCE

22. The proceedings were conducted by videoconference on 16 and 17 September 2021. The applicant was represented by Ms Jade Girvan, of Coda Auslan Services. The respondent was represented by Ms Sarah Varney. The hearing was conducted with the assistance of three Auslan interpreters and a captioner, who did an exceptional job over the two-day hearing.

23. The respondent filed a Statement of Issues dated 16 April 2021, prepared for the purposes of alternative dispute resolution in accordance with Division 3 of Part IV of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’). The respondent also filed a Statement of Facts Issues and Contentions (RSFIC), dated 11 August 2021. The respondent also filed a Tender Bundle in two parts (pages 1-209; 210-641), and a Supplementary Tender Bundle (1-85).

24. The applicant filed both the ESS Report and the IVAS Report.[31]

    [31] H16/210; H17/246

25. The applicant called Ms Vernon as an expert witness.

26. The respondent called the following witnesses:

    (a) Ms Judith Davidson, the occupational therapist engaged by the NDIA to conduct an assessment. She provided a written report dated 24 March 2021; 

    (b) Mr Daniel Lewkovitz, the managing director of a security company ‘Calamity Monitoring’. He provided a written report dated 10 August 2021;[32]

    (c) Mr Andrew Willis, CEO, Word of Mouth Technology, and Australian distributor of Bellman products. He provided a written report dated 23 July 2021.[33]

    [32] H30/481.

    [33] H24/375.

27. I note that Ms Vernon and Ms Davidson are both hearing impaired.

    THE SCOPE OF REVIEW

28. The present application for review on its face concerns the internal review decision of 14 May 2020 which affirmed an earlier decision to not include the ESS as part of the applicant’s 2020 Plan issued on 3 February 2020.[34] There was no suggestion by the respondent that the application was invalid because the 2020 Plan had been replaced by the current 2021 Plan. For the reasons given by Deputy President Constance in Holland and National Disability Insurance Agency (Holland) [2021] AATA 92, at [41], I am satisfied that the Tribunal has jurisdiction to consider whether the desired supports should be included in the applicant’s current (2021) plan.

    [34] I note the email dated 20 November 2020 from the Director of the Administrative Appeals Branch of the Reviews and Complaints Division of the NDIA to the applicant’s representative stating that the NDIA “will consider both the ESS and the IVAS as part of the AAT application”.

29. This is important because the applicant’s circumstances have changed significantly with the birth of his second child. I also note that in terms of the approved funding, there was no significant change in the Plan between 2020 and 2021.[35]

    [35] The 2020 Plan provides total funding of $31,156.81, made up of $21,347.22 for core supports, and $9,809.59 for capacity building supports: T7/87-88. The 2021 Plan provides total funding of $31,185.67, made up of $21,345.22 for core supports, and $9,840.45 for capacity building supports: R23/651. The plans are subject to automatic review after 12 months.

    POST HEARING DEVELOPMENTS

    (a) QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 (18 October 2021)

30. The parties prepared for the hearing on the basis that the Agency’s decision not to include the IVAS as part of the applicant’s plan formed part of the reviewable decision. However, during the hearing, the respondent submitted that the Tribunal’s recent decision in QDKH and National Disability Insurance Agency [2021] AATA 922 (‘QDKH’) meant that the jurisdiction of the Tribunal was limited to the supports that had been considered by the original decision-maker, or by the delegate in the internal review process, namely, the ESS. The respondent therefore submitted that the Tribunal had no jurisdiction with respect to the applicant’s claim for a new IVAS.

31. However, after the hearing, on 18 October 2021, the Federal Court set aside the Tribunal decision on the basis that:

    (c)       On the proper construction of s 100 of the NDIS Act, read in the context of the NDIS Act, there is no indication that the internal reviewer is limited to considering supports “put before” the internal reviewer. A participant in the National Disability Insurance Scheme need only “request” a review under s 100(2) and there is no requirement for them to identify the particular supports sought on the review.

    (d)       Likewise, a participant is not required to identify the particular supports sought before the CEO or delegate for the purposes of the primary decision under s 33(2). Rather, the preparation of the SOPS is a collaborative process: the CEO is required to “facilitate” the preparation of a participant’s plan (s 32(1)) and to prepare the SOPS “with” the participant (s 33(2)).

    (e) This construction better serves the beneficial purpose of the NDIS Act, and the principles set out in s 4 which include that “[p]eople with disability should be supported to receive reasonable and necessary supports” (s 4(5)) and that “[p]eople with disability should be supported in all their dealings and communications with the [National Disability Insurance Scheme Launch Transition] Agency and the [NDIS Quality and Safeguards] Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs” (s 4(9)). This construction recognises that participants may lack the capacity to identify the particular supports they wish to have approved: see Steley and NDIA [2021] AATA 2539 at [33]; VXVL and NDIA [2021] AATA 1709 at [26]. [36]

    [36] See QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189, at [10].

32. I therefore proceed on the footing that the Tribunal is required to consider the applicant’s request to include the IVAS as part of his current plan.

    (b) Vecchio and National Disability Insurance Agency [2021] AATA 3510 (30 September 2021).

33. I note also that these identical alert systems were the subject of an application before the Tribunal by Mr Anthony Vecchio, the applicant’s older brother, earlier this year.[37] In that case Ms Vernon recommended the same systems, and the respondent called the same witnesses by way of rebuttal. The claims were rejected by the Tribunal. This decision was not referred to by either party during the hearing and I became aware of the decision during the course of preparing these reasons. The Tribunal made various findings that might be thought to have some bearing on these proceedings. I therefore invited the parties to make submissions, should they choose to, with respect to this previous decision. The respondent indicated that the Tribunal should have regard to the previous findings of the Tribunal. The applicant emphasised the difference between the cases.

    [37] Vecchio and National Disability Insurance Agency [2021] AATA 3510 (30 September 2021).

34. I agree that the circumstances of the two brothers are quite different. The applicant lives in a house with his partner and two young children, while his brother lived at home with his parents, although at the time of the hearing he hoped to live with his fiancée in the future.

35. However, I wish to emphasise that the findings I have made below (see para [129]) are made independently and only on the basis of the evidence presented in this matter.

    THE APPLICANT’S PROFILE

36. The applicant profile is recorded in his 2020 plan as follows.[38]

    [38] T7/82. The statement appears unchanged in the 2021 plan: H43/646. 

    About me

    I live with my partner Sam who also has a hearing impairment and our 2 year old son with another child on the way in a 2 bedroom home. My parents and my brother live nearby. I am supported by my partner, my parents and my brother who is also hearing impaired. My main form of communication with my partner is AUSLAN (Australian Sign Language). With my parents, brothers and the rest of my family I try to communicate through spoken English as best as I can.

    My family means everything to me. I want to be able to bring up my son to enjoy everyday activities with me and my partner and not to be burdened by the many barriers that I have faced because of my deafness.

    I have worked really hard with many struggles to achieve my occupation as a plumber. I have an understanding boss whom I communicate with through text messaging and internet. I struggle to communicate with hearing people. Its [sic] a challenge for me to speak clearly and a challenge for hearing people to understand me. I would love to set up my own small business however I need a lot of support and assistance to help me achieve this.

    I get up at 5:30am via my vibrating alarm, which is backed up by my partner, have a cup of coffee, get dressed and leave for work at 6:30am. I am on the road and on-site working as a plumber during my workdays. I talk to my partner Sam and my family through the internet during work hours. I finish work at various times between 3:30pm- 5pm. My partner and I take turns in picking up our son from childcare two days a week and from my parents three days a week. My partner cooks dinner, we eat together and we share other household responsibilities in the evenings and on the weekends. I go to bed at approximately 9:30pm each day. I use the Internet to talk with friends on a regular basis. On the weekends I take my son to swimming lessons, attend futsal training for myself as part of a deaf team. I mainly socialize with my deaf friends as I find it difficult to socialize with hearing people.

    As I am expecting another child, I attend doctor appointments and meetings that I require many interpreting hours to make sure I understand all that is involved with my child. I have started to make progress on my goal of starting my own business. To do this I rely on video remote interpreting to speak to my customers and stakeholders as well other communication options such as email and text.

    My Family and friends

    • I live with my partner Sam and son. I see my brother, mum and dad regularly. My boss and I communicate via internet every day and he supports me at work.

    My Services and community involvement

    • Deaf futsal

    Deaf netball NSW

    Deaf mountain biking.

    • Audiologist

    Cochlear audiologist

    General practitioner

    Occupational therapist

    Dietician.

1. The applicant’s 2020 Plan sets out his goals as follows.[39] He said that he would like to improve his communication skills to build capacity and independence in dealing with people. His short-term goal was to be more accepted in his workplace and to achieve his full potential as a tradesman in order to establish a small plumbing business and be able to communicate with clients and service providers, and to achieve his full professional and income potential. His medium-term goal was to be supported in his role as a father. In his Plan profile he said that his family means everything to him.[40]

   [39] T7/84-85.

   [40] T7/82.

   THE APPLICANT’S CURRENT (2021) PLAN

2. The applicant’s current 2021 Plan was approved by a delegate of the Chief Executive Officer of the NDIA on 4 February 2021, under subsection 33(2) of the Act.[41] It provides total funding of $31,185.67, made up of $21,345.22 for core supports, and $9,840.45 for capacity building supports.[42]

   [41] H43/641.

   [42] H43/651-653.

3. Under the Plan, core supports can be used flexibly to help with his daily activities, his current disability-related needs and to work towards achieving his goals. $1,500 is allocated for the purchase of Basic (Level 1) and Standard (Level 2) assistive technology to support him to achieve his goals and outcomes. This funding may be used flexibly to cover annual maintenance and batteries related to the services he receives from the Hearing Services Program.

4. In terms of capacity building supports, $9,840.45 is allocated for support relating to financial administration, support for building skills relating to access to speech therapy, the Hearing Services Program Transition (HSP), and access to ongoing hearing services.

5. As noted above, there is no funding provision in the current Plan for the support systems recommended by Ms Vernon.

   THE RATIONALE FOR THE REQUESTS

   The ESS

6. In his initial reaction to the approved 2020 Plan, the applicant explained his concerns about security issues as follows:

   Due to my hearing disability, I cannot hear the sound of people in the external areas of my home. The layout of my home prevents me from viewing the external areas of my home from inside the house. Without visual notification devices, I have a severe lack of safety in my home. This also results in a lack of independence in my daily life and reduced mental health…The [ESS] will provide me with visual notification and identification of people in the external areas of my home. This will increase my level of safety in my home, independence and mental health. [43]

   [43] T4A/64.

7. He also stated:

   The [ESS] is ‘solely and directly’ related to my hearing disability, as my primary purpose of the [ESS] is for visual notification. The fact that the general hearing population use [ESS] in their homes for general home security and non-disability related needs is irrelevant in consideration of my circumstances. Due to my hearing disability I cannot hear the sound of a person entering the external areas of my home or breaking into my house. Unlike hearing people, I have a unique need for visual notification, as I cannot rely on sounds to notify me of intruders in my home.

   Accordingly, my use of the [ESS] is an ‘additional cost solely and directly related to’ my hearing disability, that ‘I would not necessarily otherwise incur’ if I were hearing.  This satisfies the requirement in r 5.2(a) Rules…

   Please note that a video doorbell system is an unsuitable alternative option, as it only provides visual notification of people who are standing outside my front door. This does not meet my need for visual notification of people in the external areas of my home (the front yard and back yard).

   I have an increased need for the [ESS] due to my circumstances

   The following circumstances heighten my lack of safety in my home:

   a) Young Dependents

   Without adequate visual notification of intruders in my home, I cannot provide a safe environment for my 2-year-old son and newborn baby.  This creates a severe lack of safety for my young children, who depend on me for their safety needs. My children’s lack of safety is compounded by the fact that there are no hearing occupants in the home, as my fiancée is also deaf.

   b) No adult hearing occupants

   My fiancé is deaf and shares the same notification needs. There are no hearing occupants in my home who can notify me of intruders in the external areas of my home

   a) (sic) Neighbourhood crime rate:

   My home is located in an area that has a high rate of home burglaries and break-ins, particularly it is nearby a train station.

   b) (sic) Layout of the home

   My home has a street front and does not have external structures to provide privacy and enclosure, exposing it to possible intruders. Also, the large backyard and layout of the house make it difficult for me to view the external areas of my home from inside my house …

   How has it affected you?

   Without the [ESS], I continue to have a severe lack of safety in my home. In particular, I am at high risk of serious injury or death, in circumstances of home invasion or burglary, where:

   a) I cannot seek timely police assistance or intervention; and

   b) I cannot protect myself, my loved ones in the home or my valuables.

   This also results in:

   a) lack of independence in my daily life. I cannot independently monitor my home security and independently take timely action in response to intruders in my home; and

   b) reduced mental health. As a result of the lack of my own safety and the safety of my loved ones in my home, I experience anxiety and restless nights.

   What outcome are you seeking?

   I am seeking the provisions of the [ESS] as outlined in the CCTV report.[44]

   [44] T1A/64-6.

   The visual alert system (interior) (IVAS)

8. The applicant currently has an internal visual alert system called the ‘visit smart home system’. The system is based on Bellman & Symfon products. The applicant is unhappy with his existing system, and seeks to have it replaced with the system proposed by Ms Vernon. The IVAS recommended by Ms Vernon is described in the original report as a ‘custom made’ system, but the system is now marketed as ‘Visual Alert^TM’. The system was developed by Ms Vernon’s employer, Mrs Louise Dreyer. The costing provided by Ms Vernon assumed that the system would be supplied and installed by a company owned by Mrs Dreyer’s husband called ‘Seventeen’s Dream’, which has now been renamed to Assistive Technologies Inc. 

9. His existing system consists of a receiver (called the visit receiver) and various accessories or sensors, including a smoke alarm, baby cry monitor, door bell, a pager, and two flash receivers. The various devices are connected by conventional wireless technology and in relation to the door bell and pager, alerts are sent to his phone, relying on the applicant’s domestic internet service.

10. On 28 April 2021, the applicant provided the following written response to a number of questions posed by the respondent.[45] The following account is paraphrased from his reply.

    [45] TB16/49-51.

11. He stated that he had been using a Bellman pager and flash receiver for the baby monitor and doorbell, and that he had used that system for over three years. He stated that he had to replace the pager, the flash receiver and the baby monitor about twice in the last three years as the products sometimes stopped working. They could not be repaired so they had to be replaced. He stated that this occurred outside the 12 months warranty period and new products had to be replaced.

12. He stated that they had a smoke alarm but it was not a flashing smoke alarm but a normal system. He could only hear it if he was wearing his cochlear. However, at night time he did not wear the cochlear because it was uncomfortable and could easily slip off. He always made sure that the stove was off and that nothing had been left on that might cause a fire. He relied on his sense of smell to identify, for example, burning toast. He had had two incidents where power points had been on fire. In one incident the power point was on fire (smouldering) in his older child’s bedroom. He had been sleeping, but when he went to the bathroom, he had noticed a strong burning smell. The other incident involved a smoking power point in his bedroom.

13. He stated that he could not use the Bellman pager when showering because it was not waterproof. Similarly, he could not use the Flash Receiver as there was nowhere to put it in the small bathroom. The vanity was very small. He provided photographs of his bathroom.

14. He stated that he had a Ring Doorbell connected to his iPhone. It was designed to enable him to identify who was at the door. However, sometimes the notification was lagging. He also had a Bellman Doorbell connected to a Flash Receiver. However, not everyone rang both doorbells.

15. If a visitor rang the Ring Doorbell, he had his iPhone with him, and there were no lagging issues, he could see who was at the door. However, this was not very reliable. If he did not have his iPhone with him, then he would not know that someone was at the door.

16. If a visitor rang the Bellman Doorbell, which was connected to the Flash Receiver, he would only know that someone rang the doorbell if he was inside the house, and saw the Flash Receiver. However, this would not allow him to see who was at the door. If he was outside the house he would not know if someone was at the door or not. There were many times he had missed the doorbell because he was in the backyard or the garage.

17. In terms of his existing system to alert him to the needs of others in his home, he stated that he had nothing to alert him in his older child’s bedroom. In the younger child’s room, he had a baby monitor connected to his iPhone and the flasher in the lounge room and kitchen. These only worked if the internet was working through WiFi. If the internet was off, then nothing would work. There was nothing that would assist him if an adult needed assistance and he could not see or hear them.

18. He stated that he used Dodo as an internet service provider through the NBN network. He stated that sometimes there were WiFi issues and he had to replace the modem a few times. He stated that there was too much wireless technology, that he had very small children, and was worried about all the radio frequencies in the air and the effect on his children. He personally preferred hardwired technology as he believed it was more reliable and safer.

19. He was asked how he solved connectivity issues. He said he would check the modem to see if it was working and reset it if necessary. He relied on the National Relay Service to get in touch with his service provider to sort out any issues.

20. He stated that he became aware of the proposed IVAS from Ms Vernon. He regarded her as sensitive to the needs of the deaf community. It was very new technology, which he found out more about by conducting some research on the internet and inquiring within the deaf community. It was an amazing system that was perfectly suited for deaf persons and families.

21. He did not think that the current safety measures installed in his home were effective. It was a very old house and very basic with standard smoke alarms.

22. He was asked whether he had experienced any incidents at home which caused safety concerns. He stated that the main concerns were that he and his fiancée would not hear if anyone broke into the property, and that was a concern for them and their two children. He did not refer to any particular incidents or provide any police reports.

23. He had a three ring security camera attached to the outside of the property in an illuminated area but it was not very reliable because it used WiFi, and there were issues with lagging and loading video.

24. He stated that it was important to him and his family to have a reliable and secure system that met their needs to live independently and safely. Wireless solutions were not effective enough and did not provide the assistance that hardwired technology could provide. He really needed the NDIA to assist with the funding.

25. Regarding conventional security measures, he stated that he always locked his back and front doors, as well as the side gate and garage, and made sure that all the windows were shut. He stated that there was no security screen on the front door, but there was a screen on the back door. There were no deadbolts on the front or back doors. There were no keyed window locks on the windows. 

    LEGISLATIVE AND POLICY FRAMEWORK

26. The Act sets out the matters that must be included in a participant’s plan. Subsection 33(2) provides:

    A participant's plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:

    (a)  the general supports (if any) that will be provided to, or in relation to, the participant; and

    (b)  the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and

    (c)  the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and

    (d)  the management of the funding for supports under the plan (see also Division 3); and

    (e)  the management of other aspects of the plan.

27. Subsection 33(5) provides:

    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 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.

28. Section 34 provides:

    Reasonable and necessary supports

    (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.

29. I also note the NDIS Rules, as well as the National Disability Insurance Scheme – Operational Guidelines – Planning (‘the Guidelines’).

30. Rule 5.1 states:

    Part 5 General criteria for supports, and supports that will not be funded or provided

    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.

31. Part 3 of the Guidelines notes that:

    A participant’s plan is made up of two parts:

    othe participant’s statement of goals and aspirations, which is prepared by the participant and specifies their goals, objectives, aspirations and personal context (including all informal, community and other mainstream supports already available to the participant); and

    othe statement of participant supports, which is prepared with the participant and approved by the NDIA, which specifies, among other matters, the supports that will be provided or funded by the NDIS.

    A participant’s statement of participant supports will also set out the date by which the NDIA will review a participant’s plan (i.e. create a new plan) and how the funding for supports under a participant’s plan will be managed (see the plan management decision).

    In deciding whether to include any support in a participant’s plan and when approving a statement of participant supports, the NDIA must have regard to a range of matters set out in the NDIS Act, including the participant’s statement of goals and aspirations.

32. Clause 7.1 of the Guidelines refers to the importance of the participant’s statement of goals and aspirations.

    7.1 What is the importance of the participant’s statement of goals and aspirations? The participant’s statement of goals and aspirations (also known as the participant’s statement) is the important first step in preparing the participant’s plan.

    The participant’s statement of goals and aspirations is critical to the development of a successful statement of participant supports.

    Firstly, the NDIS Act states that the NDIA must have regard to a participant’s statement of goals and aspirations when deciding to include supports in a participant’s plan (section 33(5)(a)).

    Secondly, before including any support in a participant’s plan, the NDIA must also be satisfied that the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations (section 34(1)(a)).

    Therefore, the link between participant’s statement of goals and aspirations and the statement of participant supports is explicit, and ensures that the participant’s statement provides the important foundation for the subsequent selection of supports.

    EVIDENCE

33. The Tribunal heard from the following witnesses.

    (a) The applicant

34. The applicant said that the visual alert system was amazing. He had seen it on the internet and friends had described it to him. He was unsure about whether Ms Vernon had given him a service agreement.

35. In terms of assistive technology, he had a ring doorbell and floodlights at the front door with a camera (but did not consider them to be very good). He had problems with the ring doorbell going flat. Inside the house, he had a Bellman flashing doorbell, and a smoke alarm. He had a Bellman pager which didn’t always work. He also had a flash receiver which worked with the baby monitor. He said there were two flashing systems and both were unreliable. The pager had a vibrator and he put it under his pillow at night.  It did not have a good range, so when he went outside it did not work. He did not have anything in the bathroom.

1. In terms of the CCTV system, he said:

   For safety, security and also like if we’re sleeping somebody walks in the house or something, or breaks in, we can’t even hear anything, so, you know, we might come in and realise in the morning and look on the CCTV as we had, you know, recording but then it’s too late, we haven’t heard at the time and we haven’t been able to do anything until we’ve woken up and actually noticed that something is damaged.  So, it would give peace of mind.  Like you can become quite anxious and paranoid because you’re not knowing what’s happening, or whether there is anything happening. 

2. Under cross-examination, he admitted that he had not been burgled while living in the rental property. He said that from inside the house he did not have a full view of the backyard.

3. In relation to the CCTV system, he said that an external monitoring system would not be worth having if it was not hardwired as he would then have the same issues he had with the ring doorbell.  The CCTV system would record what was being seen and alert him to any change. He understood that the system had a motion detection system which would send an alert. He said that if the system sent an alert and it was merely a cat or a possum he would go back to sleep, but if he saw someone walking in the backyard he would get up and investigate. If he saw nothing, he would watch the screen for a while and then go back to sleep. He dismissed questions relating to the steps he would take if woken by an alert as “silly”.

4. He said that he had two Bellman Flash receivers for inside the house, one in the kitchen, the other in the dining room. Those receivers were connected to the Baby Cry and to the Doorbell. He had a vibrating alarm with no flashing light.  He also had a pager that was connected to the Doorbell and to the baby Cry monitor.

5. He said that the pager was replaced twice and the baby Cry monitor once. He wasn’t sure whether it was replaced under warranty. He was able to receive alerts on his phone.

6. In terms of his bathroom, he did not want a flashing light in the bathroom and it was a very small space. He said that the visual alert system had different colours for different kinds of alert.

7. He said that he had purchased these various items under his Plan, and had brought them with him from his previous residence.

8. I accept that the applicant’s concern relating to the reliability of his existing visual alert system is genuine.

   (b) Ms Vernon

9. Ms Vernon said she had two or three years’ experience working doing assessments on those with hearing impairments. She was herself deaf. She used various assistive devices at home. She said she had a Bellman push button and a Visit Alarm Clock bed shaker, a smoke detector, and a Bellman vibration alarm clock.

10. She said that the applicant had had an initial assessment from an OT who worked for the same company, and that he had asked for a follow up session to explore CCTV and Visualert options, as he was having difficulties with his Bellman device.  She had a follow up session to see if anything had changed between the initial assessment and the follow up.  He had moved from a unit to a house. 

11. She therefore went to do a physical assessment. She said that she completed an assessment on the applicant on 28 October 2019. She provided him with a service agreement to read. She said that she had a dual role, both as the applicant’s advocate, as well as an occupational therapist.

12. She did the assessment, drew a floorplan and took some photos around the house and inside where he wanted the visual alert system.

13. She also did a check on his existing equipment. She said that the equipment including the Pager was intermittent.

14. She said that the applicant and his partner were stressed because they had a two-year-old boy. They were concerned that he might be crying in the night time, which was causing a lot of stress.  She said that the layout of the house was such that one had to go down the side to the entry. There were lots of walls in the house and it was “a hard type of house to be safe in, in terms of environmental awareness on the grounds”.[46]

    [46] Transcript, 16 September 2021, at 46.

15. Ms Vernon’s decision to recommend the visual alert system was based on the receivers and the pager being intermittent, these devices not creating “full reliability in radio frequency”, and because there were lots of walls in the house.

16. In terms of lower cost alternatives, she said that she had also suggested the Ring doorbell kit, which the applicant purchased after the assessment. But he still reported complaints of it failing to work with notifications because of a weak WiFi signal.  She said that he didn’t always have his phone on him, because he was running around after the kids. They trialled it but as it relied on a WiFi signal, it was not as reliable as a hardwired system.

17. She also said that the applicant suffered from ‘deaf anxiety’, which she described as follows:

    [W]hen you have deaf anxiety, it’s when you have no audible input and what happens is when you lose that (indistinct) there’s that build-up of anxiety in your head that there’s going to be something missed out all the time.  So just whether it’s communication - they will miss a lot of communication, there will be a lot of breakdown in that.  Whether it’s hearing it with a cochlear implant and relying on every little word to audio process (indistinct). It could be the fact that at night time they lose two senses - they lose vision and deafness combined, so they’re relying on touch, feel, taste, pretty much, and that’s probably the most scary thing to experience.  And other things is that build up over the years of having no access in the hearing world and that’s just - (indistinct) that combination of build-up. There is no medical term for it, but it’s something that is experienced by a deaf person individually, yes.[47]

    [47] Transcript, 16 September 2021, 48-49.

18. In her report she described the VisualAlert^TM system as follows:

    [The LED flasher lights] are divided into 4 separate parts which reflect neon lights against the wall using different colours to represent different alerts: red for smoke alarm, blue for baby cry alarm 1, yellow for baby cry alarm 2 and green for the front door.

    The LED lights can be installed in bathrooms or outside areas and do not have external wiring.

    The timing of the light flashes is able to be set to reflect the type of alert.

    d) a control panel which is placed outside, next to the switchboard and has an extra light to alert Mr. Vecchio if there is a malfunction.

    (c) Ms Judith Davidson

19. Ms Judith Davidson is an experienced occupational therapist. On 24 February 2021, the respondent requested Ms Davidson to undertake an assessment in relation to the assistive technology needs of the applicant. Her report is dated 24 March 2021.[48]

    [48] H22/334.

20. Ms Davidson said that she conducted a two-and-a-half-hour assessment. She was aware that the applicant was not happy with her because she asked him about his cochlear ear transplant. 

21. Ms Davidson reported that she was herself profoundly deaf but born hearing. She lost her hearing gradually in her thirties. She used Bellman products at home, as well as a ‘Notti’, which she described as a “little box that sits in my bedroom on a shelf where I can see it and if I'm sleep and my mobile phone rings or SMS's, it lights up different colours and wake me up. But it only works with the mobile phone and on a Bluetooth connection.”[49]

    [49] Transcript, 17 September 2021, 144. 

22. With regard to the ESS system, she went to a prominent electronics store to gain some information about the product. She said she was told that it was the most complex and expensive ESS in the shop.[50] She did not think as an Occupational therapist she was qualified to comment on the need for such a system.[51] In her report she stated:

    I do not believe that prescription or recommendation of a Security System is within the skills of any Occupational Therapist and there was no clinical reasoning from Full Life Occupational Therapy as to why the recommended CCTV system is more appropriate than other systems that were available. The recommended system appears to be inappropriate and unnecessary regardless of his disability and funding issues. It is one of the most expensive and complex security systems in the Jaycar stores. There are much lower cost and simpler systems that relay a picture onto a mobile phone for viewing.[52]

    [50] Transcript, 17 September 2021, at 145.

    [51] Transcript, 17 September 2021, at 151.

    [52] H22/344.

23. She said that was a general comment applicable to all occupational therapists. She saw the role of the OT as “assessing function for systems, and then appropriate technological people are utilised to help organise the options”.[53]

    [53] Transcript, 17 September 2021, at 151.

24. Ms Davidson was examined at length about the relative utility of each of the devices in the applicant’s existing IVAS: the Ring Doorbell which sends a notification to his mobile phone, the Bellman Visit push button which is connected to the Bellman receivers and the Alarm Clock, the flash receivers that flash when the Bellman Visit button is pushed, and the Bellman Alarm Clock with bed shakers.[54]  Ms Davidson made a recommendation that the number of receivers should be increased to provide better coverage within the house. She also recommended a smart watch to enable him to get notifications. She recommended either the Bellman smoke alarm or the Brooks smoke alarm. She recommended a second smoke alarm for the living room.

    [54] Transcript, 17 September 2021, at 139-141.

25. She said that she tested all the assistive devices used in the applicant’s home. She tested the Ring Doorbell and flash receivers, the Baby Cry monitor, Bed Shaker and the Alarm Clock.

26. With regard to the proposed IVAS system, she was asked how it worked and responded:

    WITNESS: As I understand it, it works at that point all half wired from a push button at the door and there would be a cry monitor installed in the position where the baby was and by a smoke alarm - I'm not too sure if there was one or two recommended, I can't remember.  And it would then translate to receivers which are coloured and that's still hard wiring which I marked on that same diagram by the occupational therapist who recommended them.

    MS GIRVAN: So you're aware that if a doorbell was to go off, a visual colour notification would go off in the Visualert system; is that correct?

    WITNESS: That's what they tell me.[55]

    [55] Transcript, 17 September 2021, at 145.

    (d) Mr Daniel Lewkovitz

27. Mr Lewkovitz is the managing director of a security company called Calamity Monitoring. He prepared a 49-page report for the Tribunal dated 10 August 2021.[56]

    [56] H30/481.

28. Mr Lewkovitz has over 28 years’ experience in the security industry. He is very well qualified. His conclusion, based on his experience and expertise and the evidence provided to him, was that the applicant did not have any significant additional security needs or face any additional security risk as a result of his hearing impairment, beyond that of the general population.[57]  He was also very critical of Ms Vernon’s assessment that members of the deaf community were at greater risk than the general public. He was extremely critical of her reliance on statistical information provided by Budget Direct, an insurance company, which he did not regard as a credible source. He criticised the concept of ‘timely action’, which appeared repeatedly in Ms Vernon’s report.

    53. Despite the numerous references to the need for “timely action” in the instance of a burglary or home invasion it is not stated what such “timely action” might be. If the premises are unattended (burglary) there is no timely action by the unaware homeowner that would be possible. In the case of an occupied premises during a burglary (home invasion) the particular response of an individual could be anything from sleeping through the robbery, fighting with an intruder, taking no action or being paralysed with fear or moving to a safer location (such as a panic room), evacuating the premises or full compliance with an intruder. …

    54. In the unlikely event of a home invasion, perhaps counterintuitively, a deaf person may have an advantage as they might sleep through the robbery and cause no provocation to an intruder, unlike a startled homeowner who was woken.

    [57] H30/492, para 31.

29. He was also critical of Ms Vernon’s selective use of reports suggesting that persons with disability were more likely to be victims of assault, or that the neighbourhood occupied by the applicant had a low level of safety. He said that he had reviewed crime statistics prepared by the NSW Bureau of Crime Statistics and Research for the relevant suburb which did not show any significant deviation from the statewide average. He emphatically rejected the assertion that the applicant was at “serious potential risk” of “serious physical injury or death” without the surveillance equipment.

30. He was critical of what he saw as Ms Vernon’s lack of technical knowledge.

    99. I note the reference within the Vernon report to Wi-Fi in respect to smoke detectors, in order to argue why wireless smoke detectors might be inappropriate. This demonstrates technical unfamiliarity with these products. In actual fact these devices, although “wireless”, do not actually operate using Wi-Fi. Wi-Fi is related to data networks such as the Internet and is mistakenly being used within the Vernon report as a generic term for wireless radio networks in general. Smoke detectors such as Brooks products use radio frequency signalling that has nothing to do with WiFi.

    100. There is a further reference to 5G networks which also have no relevance to smoke detectors and I am not aware of any commercially available smoke detector which connects to a mobile network such as 5G.

    101. Pursuant to these basic misunderstandings it is my opinion that Ms Vernon does not have a good understanding of smoke detector hardware, its design or installation...[58]

    [58] H30/503.

31. In his oral evidence, he was equally critical of the evidence given by Ms Vernon. With regard to the IVAS, he opined that people who are deaf or have severe hearing loss (cannot hear less than 85 dB) may have difficulty in hearing conventional smoke alarms and require a smoke detection system designed for alerting deaf users. This is commonly achieved by a simple, inexpensive ‘add on’ to commercially available smoke detectors which adds strobe lights and/or vibrotactile ‘bed shakers’ to alert deaf users by vibrating on or underneath a mattress or pillow. He did not consider that measures beyond this were warranted.[59]

    [59] Transcript, 17 September 2021, at 113.

    (e)  Mr Andrew Willis

32. Mr Willis provided a report dated 23 July 2021.[60] As noted above, Mr Willis is the CEO of the company that distributes Bellman products in Australia. In his oral evidence he provided a robust defence of the quality and reliability of those products. He pointed to a Report written for the Victorian Deaf Society in 2009 which identified the Bellman visit system as one of the best in Australia (although I note that this report is more than a decade old).[61] In his report he accepted that the system promoted by Ms Vernon would appeal to some deaf or hard of hearing customers. He was, however, of the opinion that this may have been influenced by the many incorrect and unsubstantiated claims made against the Bellman Visit system.[62] He provided an addendum in which he identified specific incorrect or misleading statements made by Ms Vernon.[63]

    [60] H24/375.

    [61] See Willoughby, Louisa Review of the Smoke Alarm Subsidy Scheme for Deaf and hard of hearing Victorians (The Victorian Deaf Society: 2009): H28/412, 416.

    [62] H24/386.

    [63] H24/387.

33. In his report Mr Willis noted:

    4.1 The Bellman Visit system does not use wifi, nor is its performance affected by wifi.

    4.2 We supply the Ring (brand) Wifi Doorbell to complement some customers’ Bellman Visit system. This is a product that allows you to see who is at the door via your smartphone. If the user includes the Ring Doorbell and has a wifi signal problem we can provide a wifi chime/extender to improve the signal.

    4.3 Connection issues with these smart devices like the Ring Video doorbell are always related to client’s own infrastructure. In most instances they can be fixed by updating a modem or increasing wifi coverage. Increasing wifi coverage for a product like the Ring Video Doorbell is possible with consumer wifi extenders.[64]

    [64] H24/375, 381.

34. He was also asked to comment in his report on various assertions contained in Ms Vernon’s IVAS report, and whether he considered the statements about Bellman products to be accurate.

    11.1 whether you consider statements about Bellman products to be accurate or inaccurate, and if so why?

    11.1.1 The statements are mostly inaccurate. Many of the claims are incorrect and misleading and, in my opinion, seek to make the suggested Visualert solution seem “safer” or “more reliable” than the Bellman Visit System.

    11.1.2 Please refer to Addendum 1 table at the end of this document for my specific comments on each statement made.

    11.2 whether you consider there are third‐party and/or Bellman products would provide equivalent or better functionality for Mr Vecchio’s home than the “Visualert” system, and if so what it would comprise, why you consider it would be equivalent or better, and what its cost would be.

    11.2.1 I do not recommend any third-party consumer smart lighting systems for Deaf clients. They are too complicated to configure reliably. This is mainly because components operate on platforms that are not made by the same manufacturer. eg Nest Smoke Alarm and Phillips Hue lights. I am aware that some users have made these systems worked but they have commented that there is potential for failure when one manufacturer changes software/firmware rendering the system inoperable.

    11.2.2 The Bellman Visit system would provide equivalent functionality however the Bellman Visit System does not provide a 240V mains powered smoke alarm. I consider it equivalent because it will provide a visual indication in all of the rooms within the client’s house. I consider it better for alerting outside the house if the client will accept to wear the Bellman Visit Pager. The tactile vibration is more reliable than visual indictors outside (subject to testing range of wireless signal). I would expect the radio signal to operate within all areas of the home inside. A site test is suggested for confirmation that the signal can be received by the pager outside. Noting that the shed/garage is of a metal construction and this is likely to reduce/stop the transmission of a radio frequency signal. If the Bellman Visit system does not work within this shed the only solution is to provide a hard wired one in my opinion.

    11.2.3 The cost of the Bellman Visit alternative is $3943 ex GST as detailed in Appendix A, this includes installation. Note additional costs if the client wished to have dedicated power outlets for flashing lights.

    11.2.4 If the client wants 240V mains powered smoke alarms they would need to combine the Bellman Visit system with the Brooks Visual Alert system as an alternative. The cost of the Bellman Visit system with equivalent number of lights and the brooks 240V smoke alarm system would be approx. $5500 including installation. In my expert opinion I do not recommend combining the Bellman Visit and Brooks system because operating two different platforms will require duplication of flashing lights around the home.

    CONSIDERATION

35. The Tribunal must decide whether the ESS and IVAS should be included in the applicant’s plan, based on the evidence presented in the hearing as well as the Reports provided by Ms Vernon.

36. Mr Lewkovitz and Mr Willis were highly critical of the Vernon reports.

37. Mr Lewkovitz regarded Ms Vernon as inexperienced and lacking in appropriate qualifications. He considered that she was lacking in technical understanding of the operational limitations of the systems she recommended, and therefore was not well placed to compare competing systems. Her commentary on safety issues was poorly researched, and she was not sensitive to issues relating to potential conflicts of interests.

1. Mr Willis was also very critical of the reports, and provided a lengthy addendum in which he sought to rebut specific statements made by Ms Vernon said to have been incorrect or misleading.[65]

   [65] H24/387.

2. Where there are points of conflict, I favour the evidence of Mr Lewkovitz, Mr Willis and Ms Davidson, over that of Ms Vernon. Each is an experienced professional in their field. I was impressed by the thoroughness of Ms Davidson’s report and the openness with which she gave evidence.

3. The respondent made a very strong claim against Ms Vernon and the company she worked for, suggesting that “the Tribunal may be asked to draw a conclusion that Full Life Occupational Therapy/Seventeen’s Dream are seeking to profiteer from the Scheme by advocating for the installation of unnecessary and overpriced supports to its commercial gain.” [66]

   [66] RSFIC, [46].

4. The applicant entered into a service agreement with Louise Dreyer Pty Ltd (trading as Full Life Occupational Therapy) (‘FLOT’) on 28 February 2020,[67] that is, after Ms Vernon prepared her reports. Clause 5.8 of the service agreement contains the following clause:

   The Client acknowledges that the Service Provider may receive a direct and/or indirect financial benefit, commission and/or revenue share from the sale of products and/or services recommended to the Client. The Service provider has an indirect financial interest in the VisualAlert^TM system.

   [67] TB17/52.

5. In her oral evidence, Ms Vernon did not exhibit a clear understanding of the concept of a conflict of interest. She does not appear to have discussed this topic with the Tribunal.  She had a duty to do so.

6. However, I do not accept the submission that Ms Vernon or her employer were seeking to profiteer from the NDIS. I accept that the recommendations made by Ms Vernon were made in good faith. No doubt Ms Vernon will note the importance of transparency and full disclosure in future dealings with the NDIS.

   The external surveillance system (ESS)

7. In relation to the ESS, I am satisfied that the installation of an external surveillance system is not related to the applicant’s specific disability. Specifically, I am satisfied that the provision of the ESS is not related to the applicant’s disability: Rule 5.1(b) of The NDIS Rules. Moreover, I find that the provision of an ESS falls outside the scope of the NDIS, in that it is not a reasonable and necessary support.

8. I am satisfied, in light of Mr Lewkovitz’s compelling evidence, that there are more effective and economical ways to ensure safety in the home, such as improved security devices on doors and windows. I also note that if these forms of security do not address the applicant’s security concerns, it is open to him to consider moving his family to more secure premises, such as a townhouse or flat. This sort of decision is made by security minded people on a daily basis. As a parent, the balancing of security concerns against greater amenity for the children to play is a complex equation. Should he and his partner choose the latter, it is a matter for them to determine whether additional electronic security measures are necessary. This expense should not fall on the community.

9. I am also concerned about the potential for harm to the applicant should he confront an intruder in his enclosed backyard. The increased situational awareness he seeks may not be desirable or conducive to his safety, or the security of his family. But more importantly, his security concerns do not relate to his disability.

10. The concept of ‘deaf anxiety’ as articulated by Ms Vernon was not underpinned by relevant or appropriate psychological or psychiatric evidence. I was not persuaded that the applicant suffers from any such condition or that his anxiety is any greater than might be expected from parents of very young children. The attempt to pathologise his natural concern about safety is, with respect, fraught with difficulty.

11. I therefore agree with the decision of the internal review officer made on 14 May 2021 relating to the ESS.

    The Interior Visual Alert System (IVAS)

12. This proposed IVAS was not considered by the NDIA in approving the applicant’s 2020 plan, or by the internal review officer, due to what appears to be a breakdown in communication within the NDIA. The Tribunal is nevertheless required to consider the applicant’s request. There is no jurisdictional impediment to doing so.[68]

    [68] See QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 (18 October 2021).

13. The most basic IVAS involves three elements: a detector, a signalling device (such as a flashing light), and a means of connecting the devices, whether by cable, wireless or via the internet. The devices may be powered by either AC (240V mains) or DC (battery powered), or both.

14. The proposed IVAS performs essentially the same function as the applicant’s existing system. It provides visual alerts for fire, doorbell, and baby cries. Unlike the applicant’s present Bellman based system, VisualAlert^TM is hard-wired.

15. In light of the evidence presented to the Tribunal, I am satisfied that there is little if any benefit in a hardwired system, as opposed to a system where devices (whether battery powered or connected to mains power) interact either through radio waves or by alerts using the internet. The Tribunal is also mindful of the wider implications of hardwiring premises, especially in rental accommodation. The financial sustainability of the NDIS is an important consideration in this context.

16. There is one caveat to this. I note that Mr Willis made the observation that the Bellman Door ring may not function if the applicant is in his garage, which presumably operates like a Faraday cage in blocking radio waves and other forms of electromagnetic radiation.

17. Mr Willis observed:

    Noting that the shed/garage is of a metal construction and this is likely to reduce/stop the transmission of a radio frequency signal. If the Bellman Visit system does not work within this shed the only solution is to provide a hard wired one in my opinion.[69]

    [69] H24/385: Report, at 11.2.2 (see above, para 26).

    THE RESPONDENT’S OFFER

18. On the second day of hearing, the Agency made an offer relating to the IVAS,[70] essentially in line with recommendations made by the Ms Davidson.[71]

    [70] Transcript, 17 September 2021, p 110.

    [71] Transcript, 17 September 2021, p 116.

19. The respondent offered to augment the applicant’s existing system with two additional Flash Receivers, and to replace various items of equipment including a new Ring Video Doorbell, two Ring Chimes, two Bellman Door Transmitters, a Bellman smoke alarm, and a Bellman visit alarm clock, at a total cost of $2,172.90, including set up costs: see Appendix A.

20. The Tribunal adjourned briefly to enable the applicant to consider the offer, which was rejected. The applicant intimated that he did not think that the proposed equipment would work, and wanted a hardwired visual alert system. [72]

    [72] Transcript, 17 September 2021, p 118.

21. In light of the evidence presented, I make the following findings:

    a)The applicant’s present internal alert system (based on Bellman products) is fit for purpose. It is widely used and endorsed by advocates within the deaf community. Any functional deficiencies in his home can be addressed at far lower cost by remedial action rather than by the installation of an entirely new system;

    b)The claimed superior functionality or reliability of the IVAS recommended by Ms Vernon has not been demonstrated;

    c)There is no intrinsic advantage in a hard-wired system apart from very modest savings in the cost of lithium batteries;

    d)The portability of the applicant’s existing system offers a considerable advantage over a hard-wired system, especially in relation to leased premises, although a hard-wired may be required for doorbell and smoke alarm alerts to the applicant’s external garage;

    e)The proposed IVAS was estimated to cost $12,431.14 (plus GST), being $8,593.14 for equipment, $2,680 for installation, and $1,158 for set up and training.[73] I am not satisfied that this represents value for money;

    f)There is no evidence before the Tribunal to support a claim that radio waves constitute a health risk;

    g)There is no evidence before the Tribunal to support a claim that the applicant suffers from a condition adverse to his mental health described as “deaf anxiety”.

    [73] See IVAS report: H17/246, 277.

22. My conclusion is that the proposed IVAS recommended by Ms Vernon should not be funded within the applicant’s current NDIS Plan.

    DISPOSITION

23. The respondent submitted that the Tribunal should remit the matter under section 42D of the AAT Act with a direction for a Plan Review, taking into account the Tribunal’s findings. A Plan review provides an opportunity for the NDIA to consider the applicant’s present needs and to augment if necessary his present visual alert system, and to consider specifically an appropriate signalling device for the applicant’s external garage. It would also provide the applicant an opportunity to refresh his plan statement, especially in relation to his goals and objectives, which presently do not refer to the issue of safety in the home environment. I note that the respondent’s solicitor gave an undertaking to the Tribunal to recommend to the Agency to undertake a plan review.

24. I support the need for a plan review, but I do not think that remittal under section 42D is the correct outcome of these proceedings, for the reasons outlined by Deputy President Constance in Holland.[74] In my opinion, it would be inconsistent with a key objective of the Tribunal to provide a remedy that is ‘fair, just, economical, informal and quick’ to remit the matter under section 42D.[75] Remittal under section 42D does not promote these objectives. A possible outcome of remittal under section 42D is that after reconsideration by the decision-maker, the applicant may proceed with the present application for review as varied or apply to review any new decision.[76]

    [74] Holland and National Disability Insurance Agency [2021] AATA 92, at [44] et seq.

    [75] AAT Act, s 2A.

    [76] See AAT Act, s 42D(3)(b)(i); 42D(4)(b)(i).

25. The implication of the Federal Court decision discussed above[77] is that the decision under review encompasses not only the specific decision of the IRO refusing to include the ESS in the applicant’s plan, but also the subsequent refusal by the Agency to include the IVAS. The issues relating to both the ESS and the IVAS were fully explored over two days before the Tribunal in these proceedings within the context of the applicant’s present plan. Such proceedings are expensive and labour intensive. In relation to the ESS, in the absence of a substantial change in the current plan (which may occur during a plan review), the respondent is entitled to finality in relation to the Tribunal’s finding that this is not a reasonable and necessary support. In relation to the IVAS, the Tribunal has found that there is no tangible advantage of the proposed IVAS system over the applicant’s existing alert system. Any plan review should proceed in the light of the specific findings made by the Tribunal.

    [77] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.

    CONCLUSION

26. I therefore set aside, under subsection 43(1)(c) of the AAT Act, the decision of the IRO dated 14 May 2020, and remit the matter to the Secretary for reconsideration, with a recommendation to carry out a Plan Review; taking into account the Tribunal’s finding that, under the applicant’s current plan, the ESS system does not meet the ‘reasonable and necessary’ criteria under section 34 of the NDIS Act, or Part 5 of the NDIS Rules.

    DECISION

27. The decision under review is set aside and remitted to the Secretary pursuant to subsection 43(1)(c) with a recommendation to conduct a plan review, taking into account the Tribunal’s findings.

I certify that the preceding 135 (one hundred and thirty-five) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

...................................[SGD].....................................

Associate

Dated: 8 December 2021 

Date(s) of hearing:

16 and 17 September 2021

Date final submissions received:

13 November 2021

Advocate for the Applicant:

Ms J Girvan, Coda Auslan Services

Counsel for the Respondent:

Solicitors for the Respondent

Ms S Varney, Counsel

Mr N Crawford, National Disability Insurance Agency

APPENDIX A

Costings of agency’s revised offer during the hearing

Support	Cost per unit	Total cost	Hearing Bundle Reference
1 x Ring Video Doorbell 3	$249.00	$249.00	H22, pg 354
2 x Ring Chimes	$49.95	$99.90	H22, pg 354
2 x Bellman Door Transmitters (BE1411)	$179.00	$358.00	H22, pg 354
1 x bellman smoke alarm	$319.00	$319.00	H22, pg 354
1 x bellman visit alarm clock	$389.00	$389.00	H22, pg 341
2 x additional flash receivers	$299.00	$598.00	n/a
2 hours for a technician to assist with set up	$80.00/hour	$160.00	n/a
Grand Total	$2,172.90