Vecchio and National Disability Insurance Agency
[2021] AATA 3510
•30 September 2021
Vecchio and National Disability Insurance Agency [2021] AATA 3510 (30 September 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/8009
Re:Anthony Vecchio
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:30 September 2021
Place:Sydney
The decision under review is affirmed.
..................................[sgd]......................................
Chris Puplick AM, Senior Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – whether claimed supports are reasonable and necessary – whether supports represent value for money – whether supports are not duplicative of currently funded supports – whether supports are in accordance with NDIS rules and guidelines – whether supports relate to “day to day living” – where home to be modified is not the participant’s principal place of residence where they intend to remain living – decision affirmed
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth) ss 4, 33 and 34
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) rr 3 and 5
CASES
McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121
SECONDARY MATERIALS
National Disability Insurance Scheme, Operational Guidelines – Planning, Guideline 10.5
Occupational Therapy Board of Australia, Code of Conduct (March 2014)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
30 September 2021
THE APPLICATION
Mr Anthony Vecchio (the Applicant) is the current holder of a Plan under the National Disability Insurance Scheme Act 2013 (Cth) (the Act). He has been a participant in the National Disability Insurance Scheme (the NDIS) since 3 May 2017. The NDIS is administered by the National Disability Insurance Agency (NDIA).
On 24 June 2020 a delegate of the Chief Executive Officer of the NDIA (the Respondent) made a decision under subsection 33(2) of the Act to approve an NDIS Plan for the Applicant to commence on that date and to become automatically reviewable on 24 June 2021.
On 19 August 2020 the Applicant sought a review of his Plan so as to include in it certain items which had not previously been included.
The Applicant’s request to the NDIA was rejected on 6 November 2020 which affirmed its prior decision and on 4 December 2020 the Applicant sought a review of that refusal decision in this Tribunal. The matter was heard on 9 and 10 September 2021 with all parties using the Microsoft Teams platform and in accordance with the Tribunal’s COVID-19 protocols. Both parties were legally represented. The Applicant was assisted by an interpreter using the AUSLAN sign language and where required witnesses were assisted by the provision of a closed-captioning service.
THE APPLICANT
Each and every participant in the NDIS is a unique individual and the underlying rationale of the Scheme is to tailor programmes of support (as provided for under the Act) to meet the identified needs of each individual. The starting point in any considerations must therefore be informed by an understanding of the circumstances and needs of the Applicant.
Rather than attempt to distil or paraphrase the situation of the Applicant, the Tribunal hereunder reproduces the relevant section of a report prepared by Ms Melina Vernon (Vernon Report), a qualified Occupational Therapist who has been requested to prepare submission on behalf of the Applicant. She writes:[1]
[1] Tribunal documents (T-documents) at 25-26. Footnotes and references omitted.
“Background
Medical
Mr. Vecchio is a 35-year-old male who was born deaf as a result of an unknown cause. He has hearing parents, a deaf brother, a hearing brother and three hearing nephews. Mr. Vecchio has a partner who is deaf and blind and he does not have children.
Mr. Vecchio is profoundly deaf and must rely on visual or vibrating alerting devices as well as visual communication. He received a left Cochlear Implant and uses a right hearing aid. His left Cochlear sound processor and his right hearing aid assist him with lip-reading, background noise and speech. He turns his Cochlear sound processor off during sleep and removes his hearing aid when showering, swimming or sleeping. The hearing aid and sound processor do not provide Mr. Vecchio with the same sounds as ‘natural hearing.’ Only certain frequencies are picked up, creating difficulties in sound interpretation.
He also has asthma and Myopia (short-sightedness).
Communication
Mr. Vecchio was raised in a predominantly hearing family, who used oral English to communicate with him.
In the hearing community, Mr. Vecchio currently communicates using oral English. Mr. Vecchio has good speech and lip-reading abilities and a good level of English comprehension and literacy.
However, Mr. Vecchio’s ability to communicate in the hearing community is severely limited by his inability to communicate when there is excessive environmental noise. While Mr. Vecchio can use a telephone using Bluetooth connection, this is only effective in quiet environments. He also has difficulty understanding people with unfamiliar accents. As a result, Mr. Vecchio is isolated in significant parts of his everyday life.
Mr. Vecchio’s lip-reading ability provides a limited scope of communication for him. He is only able to understand oral English in the limited context of a ‘face to face’ conversation. As a result, Mr. Vecchio remains excluded from discussions in a group context, public announcements, and various types of communication in his daily life.
Education and Work
Mr. Vecchio attended a mainstream primary school and high school, using oral English and with the assistance of a support teacher. After completing year 12, he completed a two-year TAFE course in Technical Drafting. Subsequently, he completed a five-year Master's degree in Architecture at University. During his studies, he communicated in oral English and had the assistance of a notetaker.
He then worked for various companies in the building design industry. However, due to his communication barriers, he felt excluded and was overlooked for management roles. In particular, he had difficulty communicating with clients on the phone and communicating in noisy environments. As a result, Mr. Vecchio is currently self-employed and provides freelance services as a sole trader.
Living arrangements
Mr. Vecchio lives with his hearing parents in a double-storey large privately-owned house. The internal area of the home comprises of five bedrooms, three bathrooms, two living rooms, a kitchen, laundry, office and a double garage. The external area of the home comprises of back and front yards and an outdoor entertainment and BBQ area.
The house has no home security device which provides visual identification and notification of people in the external areas of the home. Due to the size and layout of the home, Mr. Vecchio has difficulty viewing the external areas of the home from inside the house.
Life Transitions
Mr. Vecchio operates his own business from home. This life transition increases his need for the AT, as he:
a) spends significant time in his home; and
b) is often alone in the home when his parents are away.
Formal and Informal Support
Formal:
• GP
• Clinical Audiologist
• Cochlear Audiologist
Informal:
• Mr. Vecchio’s hearing parents provide him with informal support and can assist him with his notification needs. However, they cannot fulfil all his daily notification needs, as they are not always with him.”
While the Respondent challenges a great deal of the Vernon report(s), it does not cavil that this is an accurate description of the Applicant’s history and current situation. The Respondent adds the further relevant details:[2]
“6. The Applicant is profoundly/severely deaf and has been from birth. He received a left cochlear implant 10 years ago; and has subsequently had a N5 and then N6 processor and most recently an N7 speech processor. He also has a right ear GN Resound Hearing aid. The Applicant uses these devices through the day and has them paired to an Apple iPhone.
…
8. The Applicant communicates effectively in oral English and can manage his day-to-day communication well, though has issues with using a mobile phone. He can write well. He is able to sign, though does not sign with his fiancée due to her visual impairments.
9. The Applicant and his fiancée plan to commence residing together in March 2022 in a two bedroom unit the Applicant co-owns with one of his brothers.”
[2] Respondent’s Statement of Facts, Issues and Contentions (SFIC).
Speaking for himself, the Applicant says:[3]
[3] T-documents at 409.
“Part 1: About me
This part of my Participant Statement is about me, my daily life and the people in my life.
Where I live and the people who support me
Hi, I'm Anthony and I am 34. I live at home with my mother and father in the family home currently. I also have two brothers. My elder brother is hearing while my younger brother is also deaf and uses sign language. I have three nephews, two of whom belong to my eldest brother, and the other with my youngest brother, all whom I adore. I communicate and feel comfortable in myself across the hearing and non-hearing community, and aim to maintain relationships across both. Family means everything to me, but so does my professional passion alongside my social life.
I've been through a few schools and then TAFE where I studied architecture. Then I attended university and attained a master’s in architecture. Currently I am self-employed having worked with different companies at first where I found they did not recognise my abilities aside from my hearing impairment, and I sometimes felt excluded and overlooked for management roles. I found it a challenge in the workplace and with clients, especially on the phone without adjustments. Being self-employed I feel less excluded, but earn much less income.
I enjoy socialising with hearing and deaf friends. I am not fluent in sign language, so there are some communication breakdowns with deaf friends. I also enjoy playing soccer and going to the gym regularly. On the same theme, I enjoy watching sports (especially my favourite Italian soccer team) and going to local sporting events, although they can be very noisy for me as I live with profound sensor neural hearing loss.
My daily life
My daily routine is fairly regular. I get up by myself early and get ready for the day. Monday to Friday I simply work during regular business hours at home mainly as my personal business requires. I generally communicate for work including with clients via emails, face to face talking and rarely, if necessary over the phone though I find that hard, which impedes my ability to work at full capacity. In terms of rectifying this issue, I am trying to establish appropriate supportive technology to overcome any pitfalls with telephone communications.
I normally socialise one week night and visit my favourite local gym maybe twice a week. Of course I help my parents in the house daily out of work hours for all meals and chores as an adult resident. I usually also go out on weekends to whatever I feel like doing, with my hearing and non hearing friends and acquaintances.”
THE CURRENT PLAN AND THE APPLICANT’S GOALS[4]
[4] Ibid at 427-430.
The Plan approved for the Applicant on 24 June 2020 contains the following elements:
Core Supports
Budget
Funding for assistive technology: $200.00 is allocated for the purchase of Basic (Level 1) and Standard (Level 2) assistive technology to support me to achieve my goals and outcomes. This funding may be used flexibly to cover the annual maintenance and batteries contribution related to the services I receive from the Hearing Services Program.
Funding includes AUSLAN training and interpreting and translating Services. Funding works with mainstream, community, informal and capacity building supports.
My Core Supports funding will be:
· $4,877.40 Plan-managed
$4,877.40
Transport
This funding is a contribution towards any transport related costs (including activity related transport costs), you incur during the plan period. This amount will be paid fortnightly into your nominated bank account on a pro-rata basis.
Core supports to work together and coordinate with mainstream services such as NSW Department of Transport First Stop Transport Training. Funding takes into account transport training that will be undertaken by the participant during this plan.
My Transport funding will be: paid as fortnightly instalments into my nominated bank account.
$ 2,472.00
Total Core Supports
$7,349.40
Capacity Building supports
Budget
Improved Life Choices (CB Choice & Control)
STATED SUPPORT: Financial intermediary set up costs and monthly processing fees for your plan manager to manage your plan.
My Stated Supports funding will be:
· $1,227.36 NDIA-managed
Plan Management - Financial Administration
· $227.53 NDIA-managed
Plan Management And Financial Capacity Building – Set Up Costs
$1,454.89
Improved Daily Living (CB Daily Activity)
$5,307.90
Hearing Services Program Transition (HSP): Your hearing services will be provided through the Commonwealth Government (HSP) which is pre-paid until 30 June 2020. This funding will then be available for you to access ongoing hearing services from 1 July 2020. The cost of this item is subject to change prior 1 July 2020.
Capacity building supports to work together and coordinate with core supports to maximise your independence and participation. Funding includes building capacity to learn skills such as transport training and assistive technology assessments, under the supervision of the skilled therapist, so that the benefit for the participant is not solely limited to therapy sessions.
My Improved Daily Living funding will be:
· $5,307.90 Plan-managed
Support Coordination
20 hours per year of support coordination to help me connect with my chosen service providers and to learn how to use my plan to maximise my goal outcomes.
My Stated Supports funding will be:
· $1,961.20 NDIA-managed
Level 2: Coordination Of Supports
$1,961.20
Total Capacity Building Supports
$8,723.99
TOTAL PLAN
$16,961.20
Underpinning any Plan is a statement of the participant’s goals. In this instance, the Applicant states in his formal Plan document:[5]
[5] Ibid at 445.
“This part of my Participant Statement lists the goals I want to work towards during this plan.
My First Goal is:
During this plan: I would like to be more accepted in my work life and achieve my full professional and income potential through appropriate assistive technology and supports
My Second Goal is:
During this plan: I would like to learn AUSLAN so that I am able to communicate clearly with my non-hearing friends and family
My longer term goals and aspirations are:
Goal: I would like to engage more in the deaf community in a productive manner
Relates to: Social and community activities
Goal: I would like to develop a stronger network between the hearing and non-hearing communities to ensure that I achieve my life long personal goals
Relates to: Social and community activities.”
Ms Vernon, in summarising the Applicant’s goals in her various reports gives them as being:
“‘I would like to live more independently and safely by improving my home environment.’
This relates to:
• independent living in the community; and
• independent living and home safety.”[6]
[6] Ibid at 78.
Elsewhere:
“‘To live safely in my home.’
This relates to:
• independent living in the community; and
• independent living and home safety.”[7]
[7] Ibid at 221.
THE REQUESTED ADDITIONS TO THE PLAN
The Applicant has requested two additional items be included in his Plan:
·a CCTV system with floodlights (including installation and training)
·a visual alert system (involving non-structural home alterations).
In support of his application the Applicant has provided several evaluation reports as follows, all prepared by Ms Vernon:[8]
(a)Non-Structural Home Modification and Assistive Technology Report dated 12 April 2020 (HM Report);
(b)Non-Structural Home Modification and Assistive Technology Report dated 25 (Updated HM Report);
(c)CCTV Camera with Motion Sensor Light: Assistive Technology Report dated 12 April 2020 (CCTV Report); and
(d)Assistive Technology Report: CCTV Cameras with Motion Sensor Lighting.
[8] Ibid at 46.
THE RATIONALE OF THE REQUESTS
It was clear from the Applicant’s oral testimony that he has a degree of concern about his physical security at home when his parents are not present, and he is effectively alone in the house. He is concerned, in a physical sense, that in the event of fire or an intruder into the house, he would not be alerted in sufficient time to be able to secure his safety. In a more business-oriented sense he is concerned that his current systems may not function properly and hence result in him not responding to a telephone call or a knock on his front door, especially from his business clients visiting him at his (home) office.
These are valid concerns and should not be dismissed lightly by the Tribunal.
THE BASIS OF THE REFUSAL DECISION
In making the refusal decision, the Respondent relies upon three criteria which are set out in the Act and in the Rules (see below) which have been made under the Act. In essence these amount to a determination by the Respondent that:
(a)the CCTV system supports something which amounts to a “day to day living expense” which cannot be included in a Plan, and
(b)the Visual alert system both duplicates support which is otherwise provided by the Plan and in any event,
(c)does not represent value for money, a further requirement of the Scheme.
LEGISLATIVE FRAMEWORK
It is not necessary to set out in detail the entire schema of the NDIS which is comprehensively presented in the Respondent’s SFIC. Suffice to say, in the broadest terms the Act:
·recognises the right of people with a disability to have access to such supports as will allow them to lead the most fulfilling life possible in all the circumstances,
·puts people with disabilities at the centre of the decision-making processes which are designed to respect their autonomy and reflect their own life aspirations and goals in their Plan.
NDIS support is not open-ended. Decision-makers are required to ensure that:
·supports provided are “reasonable and necessary” to assist an applicant to pursue their goals, objectives and aspirations;[9]
·the public revenues are protected by having regard, in each determination to the need to “ensure the financial sustainability of the NDIS”[10] and ensure that any supports provided represent “value for money”.[11]
[9] National Disability Insurance Scheme Act 2013 (Cth) (Act) s 34.
[10] Act s 4(17)(b).
[11] Act s 34(1)(c).
The Act requires that specific sets of Support Rules (Rules) be developed which both establish (primarily by exclusion) what supports are available to participants and what matters decision-makers must take into account when assessing NDIS claims.
Section 33(5)(d) of the Act makes it mandatory for decision-makers to have regard to what is specified in the Rules.[12]
[12] McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121 at [43].
Section 34(1) provides (emphasis added):
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.
The assessment of what may or may not constitute “value for money” is guided by the provisions of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Supports for Participants Rules). Rule 3.1 requires consideration of:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long term benefit to, the participant;
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d) for supports that involve the provision of equipment or modifications:
(i) the comparative costs of purchasing or leasing the equipment or modifications; and
(ii) whether there are any expected changes in technology or the participants’ circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e) whether the cost of the support is comparable to the costs of supports of the same kind that are provided in the area in which the participant resides;
(f) whether the support will increase the participant’s independence and
reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
Rule 5 of the Supports for Participants Rules[13] provides some general exclusions related to the availability of 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 the participant’s disability support needs.
[13] National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Supports for Participants Rules).
In addition to the Act and the Rules, there are also a series of Operational Guidelines which provides guidance in relation to the preparation and review of a participant’s plan, in particular the decision by the NDIA to approve a statement of participant supports.
Relevantly, in these proceedings, those Guidelines provide (at 10.5):
·where assistive technologies and certain types of aids and equipment are being considered, it is expected the NDIA will generally only fund the minimum necessary or standard level of support required…
·Home modifications, as a further example, would generally only be considered where the home to be modified is the participant's principal place of residence and the participant intends to remain living at the premises.[14]
[14] T-documents at 467. Emphasis in original.
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal has been provided with a number of reports some of which go to assessments of the needs of the Applicants and others which deal with the technical details of items proposed to be included as supports.
Mr Anthony Vecchio
Mr Vecchio gave extensive oral evidence to the Tribunal which supplemented and added to the evidence which was provided by way of his written responses to questions put to him by the Respondent in correspondence dated 19 February 2021. The critical parts of the Applicant’s written responses are to the effect that:
·he first became aware of the Visualert™ system after hearing about it from his brother who is also an NDIS recipient;
·he has tried some alternative (i.e. non Visualert) technologies but did not find them fully useful, finding that they occasionally fail and there is poor connectivity with his mobile phone;
·although he currently lives at home with his parents (who are often not at home) he finds he is generally able to manage but in the future, “I will be in my own home and have a partner (my fiancé) who has similar needs and some additional support (hearing impaired and legally blind) that will require more assistance from myself. Therefore, I need a system that is going to allow for me to take responsibility as a fiancé and in the safest, most efficient way possible”; and
·“My fiancé and I are planning to get married next year and move in together from then on. It’s imperative that I have a reliable and secure safety alert system for myself and my fiancé, for us to live independently with ease and good quality of life for both of us. Regarding to my fiancé, she is both hearing and vision impaired (legally blind) and having both a Visual Alert system and a reliable security doorbell / camera system will be of value for money for both of us in the long term. All the other low-cost alternative technologies (mostly wireless products) are not effective enough and they’re not built for long term solution with ease and comfort.”[15]
[15] Applicant’s Evidence, Tribunal Book at 560-564.
In addition, the Applicant identified the following alarm and notification systems as being one which he currently had at home:
a.“Make: Bellman & Symfon (Smoke Alarm System) | RING (Video Door Bell)
b.Model: BE1287 (Smoke Alarm) | BE1380 (Alarm Clock & Bed Shaker) BE1442 (Light Flasher) | Video Doorbell 2 (Video Door Bell)
c.Year of manufacture: Smoke Alarm (26.11.2018) | Alarm Clock & Bed Shaker (Unknown date) | Light Flasher (Unknown Date) | Video Doorbell 2 (Unknown Date)
d.Year of installation within your home: 2020
e.Location within your home: Smoke Alarm (above corridor door) | Alarm Clock & Bed Shaker (my bedroom) | Light Flasher (lounge room) | Video Doorbell 2 (front door).”[16]
[16] Ibid at 560.
Ms Vernon’s first set of reports were dated 12 April 2020 (following her home assessment visit on 8 April 2020) and on 14 and 16 April 2020 the Applicant made several purchases of assistive technology (AT) using existing NDIS money. In particular he purchased:
·“Apple iPad Pro 11inch 512GB Wi-Fi & Cellular - $2,089
·Apple iWatch Series 5 with GPS - $590 (to pair with the iPhone SE 64GB for phone talk streaming between my hearing aids and Apple phone - Apple, Cochlear and GN resound all work together for better connectivity. It’s also does visual and vibration notification to alert me when there’s a call or message or alarm)
·Apple iPad Smart Keyboard - $299
·Apple AV Multiport Adapter - $99 (this is required for FaceTime or Zoom for visual communication on computer when required, such as captioning on iPad)
·Bellman Vibio Bluetooth Alarm Clock - $159
·Bellman Smoke Alarm Pack - $619 (fire sensor, flash receiver and bed shaker)
·Bellman Visit Safe Package - $689 (fire sensor and alarm clock)
·RING Doorbell, Chime and Bellman Door Transmitter - $567.”[17]
[17] Ibid at 390 and 602.
Not all of these products were then immediately used by the Applicant because “I purchased [them] for long term use and… they are there to assist me for visual, hearing and safety need when I live independently with my girlfriend.”[18]
[18] Ibid at 391.
In relation to the Bellman Fire Alarm pack, he advised that he had found it faulty but had not returned it to the manufacturer for replacement or repair because a year had passed, and he thought that it was out of warranty (see below).
In his oral evidence the Applicant agreed that he had not been in a position to test any of the Visualert products in situ but had researched them online. Although they had been recommended by his brother, his brother had never seen the system in action himself.[19] He indicated that he was concerned that the smoke alarm system appeared particularly deficient in the bathroom area.
[19] Ibid at 605.
He confirmed his intention to marry his fiancée in March 2022 and then move into accommodation which is already owned jointly by him and his brother. He told the Tribunal that the 2-bedroom unit in question was on the third floor (in a block of 16 units) where the foyer had a surveillance system and entry was by swipe card or by door release from an occupant. The unit is much smaller than his current home. He admitted that the CCTV system might be of far less utility in his new accommodation than in his present home.
However, if he was to continue with use of the system he would expect to pay for its removal and re-installation at his own cost.
There had been no assessment of the proposed Visualert system undertaken within the new home and Ms Vernon had not made any assessment of those premises.
In relation to the proposed number of cameras which it was intended to install in his current home as part of the CCTV system he agreed that his parents had some concern about the number being proposed and were not supportive of the entirety of the system as presented.
In terms of his own mental health, he told the Tribunal that matters of his physical safety made him feel “a bit nervous”, that he suffered “mild anxiety” (although this was not a clinical diagnosis) and that he often had “restless nights”, but these tended to be as a result of a level of “stress at work”.
Ms Melinda Vernon
Ms Vernon is an Occupational Therapist, graduating from the University of Western Sydney in 2011. She has worked as an occupational therapist since graduating and is currently employed by Full Life Occupational Therapy (FLOT). She is herself a person with a hearing impairment and so has a particular interest in working with clients in the deaf/hearing impaired community.
Ms Vernon has supplied four reports as detailed above (at paragraph 14 of this decision) related to potential support provisions for the Applicant by way of a CCTV system and a visual alert notification system.
In developing her reports, Ms Vernon spent some time with the Applicant (who she knew on a limited social level through the deaf community) and made her assessments based on his evidence and after an inspection of the Applicant’s premises on 8 April 2020. Thereafter she spoke with him once on the telephone or by Zoom.
CCTV system
Ms Vernon gives two principal reasons in support of adding a CCTV system to the Applicant’s current supports. She writes:
“Mr. Vecchio suffers from decreased mental well-being as a result of his lack of visual notification and identification of persons in the external areas of his home. As a result of his lack of safety in his home, he experiences anxiety and restless nights.[20]
…
Without the AT, Mr. Vecchio lacks notification of the fire alarm and doorbell. This results in a severe lack of safety and independence in his home environment. As a result, Mr. Vecchio experiences poor mental wellbeing, anxiety, continuous worry and concern, and restless nights.”[21]
[20] T-documents at 226.
[21] Ibid at 83.
In her testimony to the Tribunal Ms Vernon also placed considerable emphasis upon what she described as “deaf anxiety”. This is not a recognised clinical term but rather her own description of a general sense of anxiety felt within the deaf community which is added to at night when people are also rendered “blind” by the dark and thus deprived of the use of two of their five senses.
Ms Vernon continues:
“The AT enables Mr. Vecchio to have adequate visual input in his home environment, increasing his level of safety and independence at home. Accordingly, it is both ‘effective’ and ‘beneficial’ to him.”[22]
[22] Ibid at 23.
The CCTV system (supplied by Hilook) recommended by Ms Vernon comprises:
(a)motion light sensors;
(b)Digital Video Recorder
(c)8 weatherproof cameras: 4 placed in the front and 4 placed in the back of Mr. Vecchio’s home;
(d)thermal detect technology to help prevent false triggers
(e)smart viewing and notification.[23]
[23] Ibid; Also at Respondent’s SFIC at [114].
The estimated costs of the system is $3,740.00 made up of the supply of the basic system ($1,300.00), an additional camera ($300.00), installation ($1,300.00) and GST ($340.00).[24]
[24] T-documents at 47.
There are two other salient matters in Ms Vernon’s report which is dated 12 April 2020. Her report states:
Home ownership
Ownership status of the property:
Participant owned.
Is the owner of the property aware of and provided written authorisation of the potential modifications?
Yes.
…
Proposed Living Arrangements
Mr. Vecchio’s home is his permanent residence and he intends to remain in his home in the long term. He reports that there are no foreseeable circumstances that would require him to change residence.[25]
[25] Ibid at 267.
These are both matters to which the Tribunal will return.
A visual alert system
The purpose of this AT is to allow both better warnings of dangers posed by fire or intrusion into the property and a clearer connection between the front doorbell and the Applicant so that he is never unaware that the doorbell has been activated and that there is a need for him to attend to it. The system regarded as necessary is one which relies upon hardwiring rather than the use of batteries.
The system proposed goes by the brand-product name of Visualert™ and is (in this instance) comprised of:
(a)hardwired interconnection to multiple alarms; vibrating bed alarms, two smoke alarms, front doorbell;
(b)back up lithium battery;
(c)6 outlets to be placed at various locations in the home to ensure a direct line of sight in all of the home (including outdoor living areas and internal wet areas). The outlets LED light strips hard wired into the cornice of the ceiling, that are divided into 3 separate parts to reflect coloured lights against the wall using different colours to represent different alerts; and
(d)a control panel placed outside, next to the switchboard.[26]
[26] Ibid at 271-272.
The estimated cost of the Visualert™ system is given as $6,366.95. The cost of installation is given as $3,850.00[27] and there is a further cost for “therapeutic support” provided to help set up the system and follow-up with assessments of its operations, given as $1,158.00.[28]
[27] Ibid at 107-108.
[28] Ibid at 300.
This gives a total cost for the system of $11,374.95.
Ms Louise Dreyer
Ms Dreyer is an Occupational Therapist and is the principal of Full Life Occupational Therapy (FLOT), the employer of Ms Vernon. Ms Dreyer is married to Mr Johannes Dreyer who is the Director and sole shareholder of Seventeen’s Dream Pty Ltd.
In 2018 Ms Dreyer created the concept of Visualert™ and her husband, through his company became the principal supplier of that product to the market.
Since the heart of Visualert™ is the system of linking various devices, there does not appear to be a patent held by either Mr or Ms Dreyer over any of the components. Neither Mr nor Ms Dreyer appears to have any involvement in the direct manufacture or installation of the Visualert™ system although they have worked closely with a company called Egan Electrical which has developed some experience with the system both in the manufacturing and installation operations. Ms Dreyer advised that Egan Electrical operates as the installers throughout NSW but that other companies have been used interstate.
The Respondent sought to draw to the Tribunal’s attention an alleged conflict of interest where Ms Dreyer’s company (in this instance through Ms Vernon) recommended a product whose supplier was a company owned by her husband.
Ms Dreyer agreed that she had a perceived conflict of interest in this matter and told the Tribunal that she took steps make a declaration to this effect[29] and to advise clients of this fact while also noting that FLOT also recommended other lower cost products to clients. She told the Tribunal that FLOT had over 1000 clients and that perhaps only 30% were eventually supplied with the Visualert™ product.
[29] Applicant’s Evidence, Tribunal Book at 571.
The Tribunal notes that in the Service Agreement signed between Ms Vernon (on behalf of FLOT) and Mr Vecchio (as client) on 8 April 2020 (before the 12 April 2020 report) the following appears:
5.9. The Client acknowledges that the Service Provider has disclosed the existence of an indirect financial interest in the Visualert™ system.[30]
[30] Ibid at 577.
However, on this point, the Applicant in his oral evidence stated that he did not read the details of the Service Agreement with any degree of attention and the potential conflict of interest issue was not raised directly with him.
The Tribunal has noted the Respondent’s concerns in this matter but does not find that there has been anything improper or not in accordance with the NDIS Code of Conduct involving any of the employees of FLOT and the Applicant.
Ms Judith Davidson
Ms Davidson is an Occupational Therapist with some 25 years’ experience in the profession. She is also hearing impaired and was briefed by the Respondent to undertake a functional and assistive technology assessment regarding the Applicant.[31] She was provided with a number of documents including the Applicant’s response to questions from the Respondent (19 February) 2021 and the Service Agreement between the Applicant and FLOT. She also had access to Ms Vernon’s reports.
[31] Respondent’s Evidence, Tribunal book at 588.
Ms Davidson undertook her assessment with the Applicant at his home and with the assistance of an AUSLAN interpreter and a support person of his. The assessment took place on 22 June 2021 and lasted several hours.
Ms Davidson assessed the current level of AT usage in the Applicant’s home and in at least one instance reported:
“He also had a Vibio (a device which vibrates as a result of connection to the doorbell) under his pillow but he did not believe it was working adequately. My suspicion is that it is working correctly to set the alarm but he does not understand its limitations.”[32]
[32] Ibid at 604.
Ms Davidson also reported:
“He would not be able to respond to a fire alarm because he has removed the sensor downstairs because he installed it in the kitchen and it was inadvertently activated. It seems he did not follow the instructions as to the appropriate location of the sensors. His functional abilities result in the Bellman system which he is using as well as the ring System being ideal in his current property where he only intends to remain till march, 2022. He has taken no action to assess what will work in the unit so that it can be up and running before he occupies it.”[33]
[33] Ibid at 610.
Ms Davidson noted that some of the equipment purchased by the Applicant in April 2020 appeared to still be in their boxes, unused, although this is consistent with the Applicant’s comments about them having been purchased for future use.
It must be said that Ms Davidson’s report is highly critical of those provided by Ms Vernon and it contains a table with two columns, one of which is headed “Full Life Technology report” and the other “The actual situation”. Among examples of the criticisms of Ms Vernon’s report are the following:
(a)failure to take account of the Applicant’s prospective move from his current family home to a smaller unit with different internal arrangements;
(b)failure to consider any future requirements which might result from the Applicant’s marriage and potential birth of children (e.g. baby-cry alarms);
(c)statements to the effect that the Applicant had problems with Bellman products when in fact he had none operational in his home at the time of her assessment, or that he had trialled a particular Bellman product which in fact has never been available in Australia; and
(d)advice that only Visualert™ products are safe in bathrooms and wet areas when other products are equally suitable.[34]
[34] Ibid at 607-608.
Ms Davidson is also critical of the fact that Ms Vernon’s report fails to make it clear that the Applicant’s parents are opposed to the installation of the CCTV system as proposed. Ms Davidson had the benefit of speaking to the parents (apparently Ms Vernon did not). Ms Davidson reports:
“Melinda Vernon names the security system as ‘Hihook CCTV Security Camera System’ there is nothing of that description on the internet. There is a HiLook system. If this is the case, it comes in 4, 6 and 8 camera system and she provide no justification for use of more than 4 cameras. She never sought permission from Mr. Vecchio’s parents and they own the home. Mrs. Vecchio (mother) They stated during the assessment that they do not want these multiple cameras around the home.[35]
[35] Ibid at 609.
Ms Vernon’s report is also inaccurate in describing the Applicant as the home owner. He is not; his parents are.
Ms Davidson’s conclusions include the following:
(a)that “[h]is fiancée needs to be assessed for her requirements for alerting devices in respect of both her hearing impairment and visual impairment. It is considered that he is unlikely to get sufficient benefit from any additional devices until this is done”;
(b)that “the need for a Ring outdoor camera as a backup for the Ring doorbell is perhaps not necessary in the short term that he will be living in the home unless it is appropriate in the home unit”; and
(c)that “there is insufficient information on the Visualert™ in terms of its use in a home unit to recommend the system for Mr. Anthony Vecchio. There are no costs, there are no details despite the fact that in Mr. Vecchio’s letter to the NDIS in April 2020 he states he planned to move out with his girlfriend.”[36]
[36] Ibid at 616-617.
ASSESSMENT: VERNON AND DAVIDSON REPORTS
There is no doubt that Ms Vernon is an experienced occupational therapist. She is also a person who identifies as deaf and feels herself very much committed to improving the welfare of the deaf community. That community is a relatively small one and it is not surprising that Ms Vernon and the Applicant knew each other socially outside the parameters of their professional association as client and therapist. There is nothing improper in this.
Unfortunately, Ms Vernon’s commendable desire to do the best for her client and the best for the wider deaf community have resulted in the production of reports which contain a number of inaccurate statements, give a series of false impressions and present a number of unsupported conclusions and unsubstantiated recommendations.
In her oral testimony Ms Vernon made two remarks which are illustrative of the underlying problems which the Tribunal has in accepting her reports and recommendations at face value.
In the first instance she told the Tribunal that (in her words) “I was just doing what the client wants” and on the second occasion she remarked that her report was part of what she regards as a necessary process (again in her words) “to educate the NDIS about the deaf community”.
Again, these are commendable objectives but the responsibility of an Occupational Therapist in Ms Vernon’s position, vis-à-vis her client (the Applicant), in these proceedings is to be an independent, impartial, objective evaluator and not an advocate – either for the client or their community.
The Respondent’s counsel drew attention to section 8.2 of the Australian Health Practitioner Regulation Agency (AHPRA) Code of Conduct for Occupational Therapists which states (inter alia):
“Professional boundaries allow a practitioner and a patient/client to engage safely and effectively in a therapeutic relationship. Professional boundaries refers to the clear separation that should exist between professional conduct aimed at meeting the health needs of patients or clients and a practitioner’s own personal views, feelings and relationships which are not relevant to the therapeutic relationship.
Professional boundaries are integral to a good practitioner–patient/client relationship. They promote good care for patients or clients and protect both parties.”[37]
[37] Occupational Therapy Board of Australia, Code of Conduct (March 2014).
The Tribunal was not invited to make any findings in relation to Ms Vernon and the Code of Conduct and therefore does not do so.
By contrast, Ms Davidson’s report displays none of these deficiencies, although it does venture extensively into commentary on the future needs of the Applicant’s fiancée which was no part of her brief. The Tribunal is not critical of this as the impact of the future wellbeing of his soon-to-be wife must weigh heavily in considerations about the wellbeing of the Applicant himself.
Equally, to make commentary about what expenditure might be incurred now and ultimately prove “wasted” and in need of replacement or modification in the Applicant’s Plan to accommodate AT better suited to him and his wife as a couple recognises the necessity to give consideration to the “financial sustainability of the NDIS”.
Ms Davidson’s report is more thorough in all aspects, especially in its analysis of the Applicant’s current use, knowledge and experience of AT, the nature of his current and future domestic arrangements and indeed of the advantages and disadvantages of the various items of AT under discussion.
In all material respects, when any divergences appear between the reports, conclusions and recommendations of Mr Vernon and Ms Davidson, it is the latter which must be preferred.
Mr Daniel Lewkovitz
Mr Daniel Lewkovitz is the principal of a security consultancy firm, Calamity Security. He was commissioned by the Respondent to analyse Ms Vernon’s report, to make security assessments related to the Applicant’s place of residence and provide his expert commentary on the appropriate AT needs of the Applicant (including issues of costs).[38]
[38] Respondent’s Evidence, Tribunal Book at 594.
Mr Lewkovitz has well recognised expertise in matters of the design and operation of security devices, especially those related to home security. He has been an advisor to government and private sector agencies across a range of security-related issues. He has specialist knowledge of CCTV system and remote surveillance systems.
Mr Lewkovitz reviewed data on matters such as the rates of crime in the area where the Applicant lives and rates of offences committed against persons in the deaf community, finding that in neither case was there a significant departure from the position of the general community. He writes:
“I am not aware of any published research by the NSW Bureau of Crime Statistics and Research (BOCSAR) or Australian Institute of Criminology which suggests deaf individuals are at a greater risk than the general population.[39]
I have not identified any significant or unique security risks for Mr Vecchio’s situation over and above the general population of the local area. No specified risks e.g. violent ex-partner, apprehended violence order or fixated persons were identified within the report. Accordingly I do not believe there is any substantial justification for the third-party funding of specific security controls to the premises.”[40]
[39] Ibid at 737.
[40] Ibid at 741.
Mr Lewkovitz’s report canvasses the issues of the level of reliability between battery and hardwire operational systems and comes to the conclusion that he “would reject the assertion that wireless devices should be excluded from consideration due to their reliability.”[41] He also rejects the suggestion that battery powered devices are unsuitable or unusable in bathrooms or wet areas if properly placed and mounted.
[41] Ibid at 743.
When considering the Visualert™ system as compared with cheaper alternatives, he opines:
“Bellman & Syfon is an alternative provider of hardware for doorbell, cry and smoke alerting in visual and vibrating form and costs are similar. It is my understanding that this hardware has previously been installed and used by Mr Vecchio.
On this basis it is my opinion that the quoted figure of $6,367 for parts (Visualert) and a further $3,850 for labour may not represent value for money and be excessive for what is predominantly a smoke detection and alerting system in a private residence.
It is noted that were Mr Vecchio to relocate to another premises that investment would likely be written off. Hardwired installations are typically difficult to remove or warrant substantial ‘make good’ repairs (patch and paint) as well as the reinstallation cost at the new destination which often exceeds the value of a new system. Whereas, wireless devices are, by design, trivially easy to remove and relocate and frequently relied upon by rental tenants.”[42]
[42] Ibid at 744.
His report dismisses the utility of CCTV as a “fit for purpose solution to the problem of identification of a visitor’s presence”[43] and in terms of security places primary emphasis on the improvement of locks and window protection.
[43] Ibid at 746.
In relation to the actual CCTV system proposed by Ms Vernon, he comments:
“HiLook is a low-budget sub-brand of Hikvision, a major Chinese state owned manufacturer of CCTV which is currently implicated in human rights abuses and has been criticised within the US and Europe.
A typically HiLook ‘kit’ comprising 8 cameras and a recorder’ can be purchased retail for approximately $1,150 and considerably less at wholesale.
Installation would take approximately 1.5 man-days at $85 per hour. My estimated cost for a security installer to supply and install such a system would likely be $3,000 to $3,500. A number of small security company websites advertise “4 channel kits” installed for circa $3,700. Whilst quality of the hardware is generally to the lower end of the market they are a reasonable price comparison to the system proposed for this application. I am assuming that this work would be performed concurrently with work to install a ‘Visualert’ system which would reduce the labour requirements.[44]
CCTV can certainly be an effective security tool when properly implemented. However it is only one of an arsenal of tools used in security. The security of any system or environment is only as strong as its weakest link. For example, having a solid front door, with alarms and cameras, would be pointless if the back door were left ajar. In assessing whether installing CCTV represents value for money, I have considered both the system as quoted and its role within the overall security of the premises and do not consider it to represent value for money, in isolation from other security management practices of greater importance.”[45]
[44] Ibid at 748. Footnotes omitted.
[45] Ibid at 749.
Reverting to an earlier concern identified by the Respondent in relation to the companies involved in the delivery of the Visualert™ system, Mr Lewkovitz notes:
“Improper Installer Qualifications and Licensing
The NSW Security Industry Act 19975 requires that both a company and individual carrying on a ‘security activity’ be licensed under the act. This includes ‘installing, maintaining, repairing or servicing, by physical or electronic means: any mechanical, electronic, acoustic or other equipment that the person selling the equipment purports to be equipment that is designed or adapted to provide or enhance security or for the protection of any property,’ and would certainly apply to the installation of CCTV systems in a home.
I have searched the public register6 and been unable to find any current or historic security licence associated to either of ‘Egan Electrical Pty Ltd’ or Scott Egan.
Whilst I make no accusation in this regard it would be highly inappropriate for public funds to be directed toward any company or individual who were acting in breach of licensing laws.”[46]
[46] Ibid at 750. Footnotes omitted.
The Tribunal makes no finding in relation to the latter comment and includes it merely to ensure that the full range of Mr Lewkovitz findings are made explicit. However, in the event that this is the case, and Egan Electrical are not legally qualified to install such security systems, and in the event they were used to do so, funding support would be prohibited under rule 5.3.
In his oral testimony Mr Lewkovitz stressed a number of matters which had not been previously exposed such as the important of establishing uninterrupted power supplies (UPS) in relation to any equipment being considered for purchase. He strongly reaffirmed his statement that battery operated devices were no less reliable than hardwired ones or that properly installed radiofrequency (RF) devices were inherently unreliable.
In response to questions from the Tribunal he indicated that Bellman products were highly regarded in the industry and that their manufacture in Ireland often avoided some of the quality issues apparent in devices manufactured in China.
Mr Andrew Willis
Mr Andrew Willis is a senior manager at Word of Mouth Technologies and was commissioned by the Respondent to provide a report on the range (and optimum) of solutions recommended for hearing-impaired persons.[47] He was provided with details about the Applicant, a floor plan of the Applicant’s house and details of the Visualert™ system. A series of 10 specific questions were put to him for answer.
[47] Ibid at 583.
Word of Mouth is a company which specialises in the provision of AT to members of the deaf community and has been active in this field since 2002.[48]
[48] Ibid at 624.
His company is a principal supplier of the Bellman systems, including products for smoke detection and visual flash notifications. He attested to the general reliability of the Bellman systems and their success in the market.
In relation to the Bellman smoke detector which the Applicant had identified as faulty Mr Willis was immediately forthcoming about the fact that there had been one (only) batch of the product in which a manufacturing defect was detected and that some 1442 items had been recalled for replacement or repair. He noted that the item was under a two-year warranty and that the Applicant’s item could have been returned at any time for attention.
When the issue of the reliability of the Bellman products in “wet areas” was raised he submitted to the Tribunal a report obtained from the Company’s Chief Technical Officer in Sweden affirming that:
“It is not a problem to have the product in the bathroom, but it should not be placed inside the shower cabin as the temperature rising rate is high with high relative humidity.”[49]
[49] Respondent’s email submission to Tribunal dated 9 September 2021.
Mr Willis’ report indicated the suitability and availability of Bellman products to meet all the identified needs of the Applicant and instanced a typical integrated system as consisting of such items as:
·“BE1380 Bellman Visit Alarm Clock – Placed beside the bed. Used to wake the user up and also to alert them to any alarms during the night (provided they have the relevant transmitter).
·BE1442 Bellman Visit Flash Receiver – Usually one or two of these in the living areas of the home. This provides a visual indication when transmitters are activated. The white xenon strobe light gains your attention and a coloured LED advised which alert is being activated (e.g. door, phone, fire alarm or baby cry).
·BE1289 Bellman Visit Smoke Alarm – A standard home might use two of these. They have a sealed 10 year lithium battery and are approved to AS3786-2014. They have a wireless interconnection function and also feature an audible tone for hearing occupants of the home. When activated the alarm sends a wireless radio signal to any of the Bellman Visit Receivers within range (conservative estimate of up to 50m).
·BE1240 Bellman Visit Push button – A doorbell button installed at the front door. When pressed receivers alert the user to the visitor at the door.
·Ring Video Doorbell with Bellman Transmitter – This is a very popular product that combines the Ring Video Door bell with a Bellman transmitter. The result is users can receive a notification of a visitor on their smartphone (requires home wifi). The Deaf customer feels safe being able to see who is at the door before opening it. At the same time the Ring Chime creates an acoustic sound which triggers our Bellman Visit Door Transmitter. This alerts all Bellman Visit Receivers in the home.”[50]
[50] Respondent’s Evidence, Tribunal Book at 626-627.
He reported the Bellman products as easy to install, easily transferrable between locations and involving combination of both mains power and battery back-up. Most are available off-shelf and easily for individuals to install with some particular care needed for the proper installation of the smoke detector system.
Mr Willis provided a table in his report to answer all the criticisms advanced by the Applicant in relation to the use of any Bellman products or concerns about their safety or reliability. He elaborated on many of these points in his oral testimony.
Finally, a quote was provided for various products which were identified as being capable of meeting all the Applicant’s identified requirements amounting to a total of $3,446.10 (including GST) and comprising:
·5 Bellman visit flash receivers;
·1 Bellman visit pager receiver;
·1 Bellman visit pager charger;
·2 visit flash mounting kits;
·2 Bellman smoke transmitters;
·1 door transmitter;
·1 wireless doorbell;
·1 wireless doorbell delivery and installation; and
·freight.[51]
[51] Ibid at 641.
DISCUSSION
With all the evidence before the Tribunal the question becomes one of determining whether the proposed AT outlined in Ms Vernon’s report and supported by the Applicant’s own submissions meet the various tests in the Act as being reasonable and necessary, value for money, non-duplicative of existing AT equipment and in accordance with the NDIS Rules and Guidelines.
CCTV
At the outset the Tribunal must address the question raised in terms of the clear evidence that the owners of the property in question (the Applicant’s parents) are not supportive of an elaborate system of 6 to 8 CCTV cameras being attached to their property.
To all intents and purposes this is a fatal strike against the proposal. It is made more so by the fact that the system is likely to be in place for less than six months until the Applicant moves into his marital home next March. The fact that the premises in question will not continue to be the Applicant’s “principal place of residence (where he) intends to remain living at the premises” falls foul of guideline 10.5 of the Operational Guidelines to which the Tribunal should have regard.
Finally, there is no indication, indeed the evidence points in the other direction, that the CCTV system could be removed and reinstalled in the new property. It is one thing to persuade ones’ parents to allow modification to a single-family home dwelling (although as noted they have not consented) it is entirely another to seek to impose such a system on an Owner’s Corporation of numerous other members.
Lest it be thought that the Tribunal is merely seeking an “easy way out” of making a decision on this matter, the Tribunal would, in any event have rejected the request as failing the tests of both being reasonable and necessary and constituting value for money.
If the purpose of the CCTV was to enhance the physical security (and psychological wellbeing) of the Applicant, then the evidence from Mr Lewkovitz clearly shows both that the CCTV system is not best placed for the purposes of identification of individuals and that alternatives such as strengthening traditional measures of locks and window security devices are much preferred from both a utilitarian and an economic point of view.
Both Ms Davidson and Mr Lewkovitz have commented on other aspects of the specifically designated CCTV system and the Tribunal shares these concerns.
The inclusion of the CCTV system as proposed is not justified as an addition to the Applicant’s Plan.
Visualert™
Leaving aside the question of conflict of interest, two particular matters arise. In the first instance there is clear evidence that large parts (if not almost all) of the Visualert™ system as proposed duplicate AT already either in use or otherwise in the possession of the Applicant. This is contrary to the prohibition contained in rule 5.1(c) of the Supports for Participants Rules.
Moreover, the evidence is that some of the AT already purchased by the Applicant has been designated for future use and is not in active use at the moment while AT found to be faulty has (due to some degree of misunderstanding) not been returned under warranty for replacement or repair.
SECTION 34: REASONABLE AND NECESSARY TEST
In order to meet the reasonable and necessary supports requirements of section 34 of the Act the decision-maker “must be satisfied of all of the following” specified criteria (emphasis added).
Paragraph 34(1)(a) relates to a participant pursuing their goal and objective through the use of appropriate AT. In this instance the Applicant believes that the items he has requested would assist him generally because they would add to his sense of physical security, confidence and wellbeing. The Tribunal accepts this may well be the case.
Paragraph 34(1)(b) relates to facilitating a participant’s social and economic participation. There is no evidence to suggest that the proposed AT materially assists in this regard. The Applicant is not currently inhibited from a high level of participation in social and economic activities. He has an active involvement with both the deaf and hearing communities, both in his own home and externally and he runs his own successful business. He is not physically isolated and uses his own motor vehicle to visit clients.
Paragraph 34(1)(c) requires that the AT proposed represents value for money. The costings of the two systems at $3,740.00 (CCTV) and $11,374.95 (Visualert™) have been analysed by Ms Davidson, Mr Lewkovitz and Mr Willis and each has given their professional opinion that these expenses do not represent value for money and that equally effective alternatives are available at a lower cost. There is also evidence that cheaper alternatives to address the Applicant’s concerns about lags in notification are available.[52]
[52] Ibid at 609.
Paragraph 34(1)(d) requires that supports are “effective and beneficial” to the participant. The Tribunal does not accept that the Applicant is so impaired by “deaf anxiety” that he needs additional AT to address this. Nor does it accept that he is at greater risk of harm either as a deaf person or as a result of where he resides. The physical security of his current home could be improved with minor and much less expensive items such as locks and window security.
Paragraph 34(1)(e) requires consideration of the extent to which families, informal networks and the wider community might reasonably be expected to bear the burden of costs. Clearly reasonable additions to the security of the Applicant’s current home would be of lasting benefit to his parents who will remain there after he moves out in some six months’ time. It is also a matter for each family or homeowner to determine the level of home security they deem appropriate for themselves and then address the resulting costs. This is what the Support for Participants Rules deem to be “day to day living” expenses and are thus excluded from funding.[53] The suggestion that the CCTV/doorbell notification system is also a day to day matter is reinforced by the Applicant’s contention that the system would allow him to better manage his regular business arrangements and not be at risk of failing to recognise when his business clients arrived at his home/office for appointments.
[53] Supports for Participants Rules rr 5(1)(b) and 5(1)(d).
Paragraph 34(1)(f) is a catch-all provision requiring the support is “appropriately funded or provided” through the NDIS rather than some alternative source of funding. The Tribunal does not find that this has been established and that it is appropriate that NDIS funding be provided in support of this application.
A combination of testing the application against the requirements of section 34 of the Act; applying the exclusions which are contained in the Supports for Participant Rules; accepting the guidance provided in the Operation Guidelines and bearing in mind the overarching requirement to have regard to ensuring the financial viability of the NDIS, leads to a clear assessment that the AT requested in this application should not be funded by the NDIS.
DECISION
The decision under review is affirmed.
I certify that the preceding 119 (one hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.........................................[sgd]...............................
Associate
Dated: 30 September 2021
Date(s) of hearing: 9 and 10 September 2021 Advocate for the Applicant: Ms J Girvan, Coda Auslan Services Counsel for the Respondent: Ms K Musgrove Solicitors for the Respondent: Ms S Ryan, National Disability Insurance Agency
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