Vu and National Disability Insurance Agency (NDIS)
[2025] ARTA 103
•10 February 2025
Vu and National Disability Insurance Agency (NDIS) [2025] ARTA 103 (10 February 2025)
Applicant:Elizabeth Vu
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/6665
Tribunal:General Member A Colvin
Place:Brisbane
Date:10 February 2025
Decision:The Tribunal affirms the decision under review.
..........................SGD.........................................
General Member A Colvin
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME –- reasonable and necessary supports – consideration of s 34 National Disability Insurance Scheme Act 2013 (Cth) – nutritional supplements – decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth)Cases
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
National Disability Insurance Agency v WRMF [2020] FCAFC 79Secondary Materials
NDIS – Operational Guidelines - Reasonable and necessary supports
NDIS – Operational Guidelines – Principles we follow to create your planStatement of Reasons
BACKGROUND
Ms Elizabeth Vu (the Applicant) is a 21-year-old participant in the National Disability Insurance Scheme (NDIS). She has an intellectual impairment and resides with her parents. As a participant in the NDIS, she has a plan that includes a statement of participant supports (SOPS). This review is about whether the SOPS in that plan should include funding for items broadly described as nutritional supplements (the requested supplements).
The Applicant was granted access to the NDIS in 2017 based on having moderate intellectual disability and speech/sensory impairment[1]. On 19 July 2023 the National Disability Insurance Agency (the Agency) approved a plan for the Applicant that commenced on 19 July 2023 (the 2023 plan).[2] The SOPS in that plan do not include funding for any of the requested supplements. The Applicant’s mother, Mrs Tanya Vu, sought internal review and in response, in a decision dated 8 September 2023, the Agency decided to make no change to the SOPS in the 2023 plan.[3]
[1] Agency’s Statement of Facts Issues and Contentions (Agency’s SFIC), Hearing Bundle (HB) pages 1-17 at paragraph 6.
[2] T17, HB page 104.
[3] T2, HB page 49.
The Applicant applied to the Administrative Appeals Tribunal (the AAT) on 10 September 2023. From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal, and the Tribunal has authority to continue and finalise any aspect of the review not already completed by the AAT.[4]
[4] Transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).
During the present proceedings, the Agency agreed to increase transport funding in the SOPS in the 2023 plan. As a result, on 29 August 2024 the AAT remitted the matter to the Chief Executive Officer (CEO) of the Agency, and an amended plan was made on 25 September 2024.[5] The application for review was then taken to be an application for review of the decision as varied.[6] The decision presently under review therefore is the SOPS in the 2023 plan as varied on 25 September 2024.
[5] R1, HB page 305.
[6] Subsection 42D(3), Administrative Appeals Tribunal Act 1975 (Cth) then in force.
On 14 November 2024 the Tribunal ordered, pursuant to section 53 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act), that the scope of the present review is limited to the issue of whether the requested funding for nutritional supplements can and/or should be approved as an item in the SOPS in the Applicant’s NDIS plan under section 34 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).
The hearing took place on 19 December 2024. The Applicant did not participate in the hearing. Her mother, Mrs Vu, participated and gave evidence. Documents before the Tribunal were contained in a hearing bundle prepared by the Agency.
Two days prior to the hearing, Mrs Vu emailed the Tribunal requesting that the hearing be postponed until March 2025. The Tribunal declined that request, having regard to factors including Mrs Vu’s reasons, the lateness of the request, the issues in dispute, the length of time that had elapsed since lodgement, the length of the proposed delay, the opportunity that had been afforded to the Applicant to present her case, and the objectives in section 9 of the ART Act.
THE ISSUES
The issue for determination in these proceedings is whether each of the requested supplements is a reasonable and necessary support for the Applicant under subsection 34(1) of the NDIS Act.
THE LAW
The legislative framework
The statutory provisions relevant to this application for review are found within the NDIS law, in particular:
·the NDIS Act;
·the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Supports Rules);
·the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth) (the Miscellaneous Provisions Transitional Rules); and
·the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth) (the NDIS Supports Transitional Rules).
The Agency also issues Operational Guidelines. The Tribunal is not bound to follow Operational Guidelines issued by the Agency but, in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task.[7] Relevant Operational Guidelines considered in the present matter, published by the Agency on its website, are the Guidelines entitled:[8]
·Principles we follow to create your plan; and
·Reasonable and necessary supports.
[7] Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634.
[8] Webpage: ourguidelines.ndis.gov.au.
Approving SOPS in participants’ plans
Section 3 of the NDIS Act sets out the objects of the NDIS Act, while sections 4 and 5 set out general principles guiding actions under the NDIS Act. Participants’ plans are dealt with in Chapter 3 of the NDIS Act. It contains sections 17A and 31, which set out principles that specifically relate to participation in the NDIS and plans.
If a person becomes a participant, the CEO must facilitate the preparation of a plan for the participant.[9] The Applicant’s 2023 plan is an ‘old framework plan’. For those plans, section 33 of the NDIS Act sets out the matters that must be included in a participant’s plan; that is, a plan must include a statement of the participant’s goals and aspirations and it must include a SOPS, prepared with the participant and approved by the CEO. The SOPS in a participant’s plan must specify, among other things, ‘the reasonable and necessary supports (if any) that will be funded’ under the NDIS: paragraph 33(2)(b) of the NDIS Act.
[9] Section 32, NDIS Act.
In deciding whether to approve SOPS in a participant’s plan, the CEO must comply with the following mandatory requirements, contained in subsection 33(5) of the NDIS Act:
(5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a)have regard to the participant’s statement of goals and aspirations; and
(b)have regard to relevant assessments conducted in relation to the participant; and
(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d)apply 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; and
(g)have regard to whether section 46 (acquittal of NDIS amounts) was complied with in relation to any previous plan for the participant.
Reasonable and necessary supports
Subsection 34(1) of the NDIS Act deals specifically with ‘reasonable and necessary supports’:
34 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:
(aa)the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(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 an NDIS support for the participant.
Note: For the purposes of paragraph (aa):
(a)the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b)a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
The matters set out in subsection 34(1) of the NDIS Act are more than mandatory considerations; they are more in the nature of criteria that the decision‑maker must be positively satisfied about on the material.[10]
[10] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at 201.
The term ‘reasonable and necessary supports’ is not defined in the NDIS Act. In interpreting legislation, regard must be had to the legislative scheme as a whole and, in the case of the NDIS Act, the need to examine particular provisions in the wider context of the scheme as a whole is especially important because of its particular features.[11] The phrase ‘reasonable and necessary supports’ is a composite phrase and each limb of the phrase should be given work to do; both adjectives qualify the noun 'support', but they do so as a composite phrase, and it is not fruitful to split them off and consider them separately.[12]
[11] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at 139.
[12] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at 149-150.
The Supports Rules
The Supports Rules are made for the purpose of sections 33 and 34 of the NDIS Act and are relevant in determining whether the seven requirements in subsection 34(1) of the NDIS Act are met.[13] Part 3 of the Supports Rules contains provisions related to assessing whether a support is value for money (Rule 3.1), whether a support is effective and beneficial and current good practice (Rules 3.2 and 3.3), what is reasonable to expect others to provide (Rule 3.4) and whether supports are appropriately funded through the NDIS (Rules 3.5 to 3.7 and Schedule 1).
[13] Subsection 35(2), NDIS Act.
Part 5 of the Supports Rules sets out ‘General criteria for supports, and supports that will not be funded or provided’. Rule 5.1 states that a support will not be funded if it is not related to the participant’s disability (Rule 5.1(b)) or 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 (Rule 5.1(d)).
NDIS supports
In determining whether a support is reasonable and necessary, one of the seven requirements in subsection 34(1) of the NDIS Act is that the support is an ‘NDIS support’ for the participant: paragraph 34(1)(f) of the NDIS Act. Section 10 of the NDIS Act defines ‘NDIS support’. Very broadly, the effect of that section is that a support is an NDIS support if it is declared by rules to be an NDIS support, provided that rules have not declared that the support is not an NDIS support, and provided that the support is not sexual services, alcohol, or illicit drugs. The NDIS Supports Transitional Rules declare certain items to be NDIS supports and certain items to not be NDIS supports.
The Miscellaneous Provisions Transitional Rules
In deciding whether a support is a reasonable and necessary support, regard must also be had to requirements in section 7 of the Miscellaneous Provisions Transitional Rules. That section requires that, in addition to the matters in subsection 34(1) of the NDIS Act, the CEO must be satisfied that the support is most appropriately funded or provided through the NDIS 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 as part of a universal service obligation, or in accordance with reasonable adjustments required under discrimination laws.
The 2024 amendments
The NDIS Act was amended on 3 October 2024 by the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth) (the amending Act). The provisions of the NDIS Act and Rules set out above reflect the current legislation.
The amendments to section 34 of the NDIS Act apply in relation to a SOPS included in an old framework plan for a participant if the SOPS is approved or varied on or after 3 October 2024: Item 129(1), Part 3, Schedule 1 to the amending Act.
APPLICANT’S CONTENTIONS
Mrs Vu confirmed at the hearing that her daughter seeks funding for supplements recommended by Dr Mallia, and, in the alternative, supplements recommended by Ms Chiew. Their evidence and the requested supplements are discussed in detail later in these Reasons.
In the Applicant’s application for review, under the heading ‘Reasons for the application’, is the following statement:[14]
Previous application was made to the AAT in 2022 but was settled between nominee, NDIS case manager and NDIS lawyer. An email was sent in 2022 confirming supplements and Nutrition support can be used in the plan. As Extra funding was never allocated and funding has run out earlier than expected, I was advised by NDIS to go for a plan review and they are saying NO again’ [sic].
[14] T1, HB page 20.
The Applicant had previously applied to the AAT for review of the SOPS in a plan that commenced on 14 July 2022 (the 2022 plan).[15] As with the 2023 plan, the SOPS in that plan did not expressly include funding for the requested supplements. Mrs Vu explained that during those proceedings, she received an email dated 2 November 2022 from a lawyer representing the Agency. In that email, the Agency’s lawyer advised Mrs Vu that the SOPS for the 2022 plan included $2,762.20 of core consumable funding and that this was available to use flexibly for disability related supports, whether that be the purchase of nutritional supplements, personal continence products or activity related products.[16]
[15] T16, HB page 91.
[16] T1A, HB page 26.
At the hearing of the present matter, Mrs Vu explained that when funding allocated for consumables in the SOPS in the 2022 plan had been expended, she requested further funding from the Agency, on her daughter’s behalf. The Agency then approved the 2023 plan. When the SOPS in the 2023 plan did not include funding for the requested supplements, Mrs Vu sought internal review on her daughter’s behalf, and then review at the AAT.
Mrs Vu now emphasises the statements made by the Agency’s legal representative in the email she received during those earlier AAT proceedings. She also questions whether the legislative amendments in 2024 apply in the present case. She also contends that the legislative amendments make special provision for existing plans and that the Agency should not have created the 2023 plan when she contacted the Agency after funds for consumables in the SOPS in the 2022 plan had been depleted.
Mrs Vu also contends that the requested supplements serve a dual purpose for her daughter, assisting her daughter in terms of her diet but also her intellectual impairment. Mrs Vu contends that this is supported by comments Dr Mallia made regarding the Applicant’s mental health.
Mrs Vu considers that Dr Mallia’s recommendations should be preferred. She considers that Ms Chiew bases her opinion on scientific evidence, but Dr Mallia also bases his recommendations on clinical evidence from his years in practice.
Mrs Vu acknowledged that the cause of her daughter’s intellectual impairment is unclear. However, she explained that she had queried in the past whether something her daughter was eating may be ‘aggravating’ her daughter’s intellectual impairment; she noted that a lot of processed foods contain colouring and preservatives, and that there is a lot of evidence showing that the gut is connected to the brain. She also said that, when she was younger, she got a lot of skin allergies and that her daughter ‘might get it a different way, through her brain’.
Mrs Vu also contends that her daughter’s genetic testing shows that she is unable to ‘detox mercury out of her body naturally’. Mrs Vu was concerned that high levels of mercury had affected her daughter’s cognition. She acknowledged that her daughter’s mercury levels were last tested in around July 2023.
AGENCY’S CONTENTIONS
The Agency contends that the requirements of subsection 34(1) of the NDIS Act are not met, including paragraphs 34(1)(aa), (b), (c), (e) and (f). It provided detailed written[17] and oral submissions and these are set out below where relevant.
THE EVIDENCE
[17] Agency’s SFIC, HB page 1-17.
Mrs Vu’s evidence
Mrs Vu’s evidence was that her daughter had improved after taking supplements. She said her own observations were that her daughter was now able to do things like search the internet and look up Google Maps. She has also observed that her daughter’s cognition has improved, that she seems to understand things more, and that she is calmer, and able to focus. Mrs Vu also provided a screen shot of an online order for 14 items with Integrated Pharmacy.[18]
[18] T1E, HB page 48.
Ms Chiew
Ms Chiew is an Accredited Practicing Dietitian and holds a ‘Bsc & M Nutrition and Dietetic (USYD)’.[19] She did not give oral evidence. She provided a report dated 16 May 2024 (Ms Chiew’s report)[20] and a response dated 16 August 2024 to targeted questions from the Agency (Response to Targeted Questions).[21]
[19] A2, HB page 296.
[20] A2, HB page 296.
[21] A4, HB page 301.
In her report, Ms Chiew recommends that the Applicant takes six items that Ms Chiew describes as ‘vitamin supplements’. These are:
1)Orthoplex Green Selenium Drops;
2)Metagenics CalmX Tropical flavour powder;
3)Thyrobalance Drops;
4)Metagenics SPM Active 30 capsules;
5)Metagenics Hemagenics Iron Advanced 30 capsules;
6)BioMedica VegeNAC 60 capsules.
As to her reasons for recommending those supplements, Ms Chiew states in her report that the Applicant has a ‘genetic disorder’ and that this results in a slower metabolism, which makes weight loss more difficult for her as the body stores more fat, even with significant reduction in calorie intake. Ms Chiew goes on to state:[22]
This means that if she primarily relies on food to obtain her nutrient needs, she will have a high calorie intake which will result in weight gain. As previously mentioned, this is evident in her slow weight loss rate while consuming one meal per day. Hence, vitamin supplements are crucial for her to obtain her nutrition requirements while having low calorie intake, thus preventing weight gain.
[22] A2, HB page 296 at 297.
Ms Chiew’s Response to Targeted Questions included the following statements regarding the content and purpose of each supplement:[23]
[23] A4, HB page 301 at 304.
b. What is the supplement’s intended benefit? If relaying on research evidence to support your response, please specify how this research applies to Elizabeth specifically.
Please view responses to 6a and 6b that are combined below:
i) Orthoplex Green Selenium Drops 50mL - This supplement contains selenium, which is an antioxidant that supports thyroid metabolism (NHMRC, 2006). Referring to Table 2, Elizabeth is below the EAR recommendations of selenium through food intake only, from which this supplement is required.
ii) Metagenics CalmX Tropical flavour 482g powder - This supplement contains magnesium, which is a mineral that assists with the function of muscles and nerves, along with blood glucose control that supports Elizabeth's medical condition of insulin resistance (NHMRC, 2006; NIH ODS, 2022). Referring to Table 2, Elizabeth is below the EAR recommendations of magnesium through food intake only, from which this supplement is required.
iii) Thyrobalance Drops 25mL - This supplement contains vitamin E, which is an antioxidant that assists in protecting healthy dietary fats, such as polyunsaturated fatty acids, from oxidising (NHMRC, 2006). Referring to Table 2, Elizabeth is below the AI recommendations of vitamin E through food intake only, from which this supplement is required.
iv) Metagenics SPM Active 30 capsules - This supplement contains omega-3 fatty acids, which is a form of healthy dietary fat called polyunsaturated fatty acids, that provides energy for the body while assisting in the absorption of fat-soluble vitamins (i.e. vitamins A, D, E, K) and other fat-soluble bioactive compounds (NHMRC, 2006). Referring to Table 2, Elizabeth is below the AI recommendations of total omega-3 fatty acids through food intake only, from which this supplement is required.
v) Metagenics Hemagenics Iron Advanced 30 capsules - This supplement contains iron, which is a mineral that is a part of haemoglobin that is a red blood cell protein, that transports oxygen to throughout the tissues of the body. Iron also assists in cell functioning and hormone synthesis (NHMRC, 2006; NIH ODS, 2023). Referring to Table 2, Elizabeth is below the EAR recommendations of iron through food intake only, from which this supplement is required.
vi) BioMedica VegeNAC 60 capsules - This supplement contains N-acetylecysteine (NAC), which is a protein made up of the amino acid cysteine units that forms the compound cystine. NAC is an antioxidant and anti-inflammatory that assists in treating oxidative stress and inflammation, which is the body's healing response to damaged cells and tissues, while also aiding in glutathione production (Tenorio et al., 2021). Referring to Table 2, Elizabeth is below the FSANZ (n.d.) recommendations of cystine through food intake only, from which this supplement is required.
c. How does the supplement relate to Elizabeth’s intellectual disability and/or speech/sensory impairment?
Elizabeth's intellectual disability is manifested from her genetic disorder related to her chromosome abnormality (15Q 26.3), which also affects her metabolism. As a result, the nutrition supplements are required to maintain health and well-being without further weight gain through additional food intake, which can result in further disability and comorbidities.
Dr Mallia
Dr Mallia is from Integrated Health and describes his qualifications as acupuncturist and clinical nutritionist.[24] He is also registered as a Chinese Medicine Practitioner with the Australian Health Practitioner Regulation Agency. He did not give oral evidence. The material before the Tribunal includes letters from Dr Mallia dated 17 February 2023[25] and 29 July 2023[26], a prescription dated 28 April 2023[27] and a ‘Hair Mineral Analysis’ report from ‘Integrated Pathology Services’ to Dr Mallia[28].
[24] T1C, HB page 39.
[25] T4, HB page 58.
[26] T1C, HB page 39.
[27] T7, HB page 63.
[28] T14, HB page 87.
Dr Mallia recommends that the Applicant take 14 supplements. These are set out in his letter dated 29 July 2023. The items are described more particularly in the screen shot Mrs Vu provided of her online order.[29] Two of the items are recommended by Ms Chiew (Metagenics CalmX Tropical flavour powder and BioMedica VegeNAC 60 capsules). The remaining 12 items are:
[29] T1E, HB page 48.
1)Biomedical Cinnatol 150g;
2)Give Back Health Clinic Sleepatonin 15g;
3)Metagencis Glutagenics 230g powder;
4)Metagenics Lipoic Acid 600 60 tablets;
5)Orthoplex White OestroClear 60 tablets;
6)Ortholpex white Rapid D 120 tablets;
7)BioPractica Toxaprevent Plus Sachet 3g x 30 pack;
8)InterClin Professional Zinc Plus 90 capsules;
9)Heel Detox Kit (Lymp, Nux, Vomica, Reneel) 30ml x 3 pack;
10)Biomedica BioHeme 30 capsules;
11)Metagenics Ultra Flora Intensive Care 60 capsules;
12)Metagenics Phyto Pro 60 tablets.
Dr Mallia describes the nature and purpose of these items in his letter dated 29 July 2023[30]:
[30] T1C, HB pages 39 -40.
Elizabeth Vu has been a patient of mine since 10/12/2016, She initally (sic) presented to me with Global developmental delay, intellectual disability and sever (sic) language disorder along with obesity, liver dysfunction.
In this time, we have had an organ system approach to improve her clinal (sic) diagnosed conditions and mental health challenges. We have had immense success in improving various health issues connected to her Intellectual disability including her gut health, weight, and liver function. Her mental health has become less severe with a much higher state of function being observed sine my treatment.
Her mental wellbeing has also improved markedly since her dramatic loss of weight and continues to work on this. Her initial weight was 110kg and now is 87.9 with a dramatic change in her sugar cravings thus her mental health also. She continues work with me to maintain and further improve her health and mental well-being and will require further management and support so she continues to thrive. The family intention is that she becomes self sufficient (sic) and independent as she moves into adulthood.
Please note we have recently found her mercury levels to be high which could
explain why there is neurological implications. Hence her new program is to chelate Mercury out of the body to improve nervous system function
The rest of the supplement’s functions are
• Vega NAC is for mercury detox and to improve Neurological function thereafter (please see hair analysis)
• Phytopro is for detox and liver function and stress enhancement due to livers impact on the emotions (please see her blood test)
• Glutagenics is for the Gut brain immune axis please see previous microbiome analysis
· Cinnatol and lipoic acid are for metabolic health and for weight loss and appetite control
• Heel detox is for mercury detox and liver health
• Bioheme is for iron depletion and mental health due to low iron being connected to poor mental health function.
• Sleepatonin for her sleep as she suffer from insomnia that affects her mental health and sleep apnea
• Estro clear is for liver detox
• Calm x Is for stress and anxiety
• Ultra flora intensive is for gut brain axis
• Drops are for mercury detox
• Toxaprevent pulls mercury out of the gut
• Zinc is for low Zinc status and detox
• D is for low normal status for one week only [sic].
Other documents
The Agency provided material relating to the requested supplements. This included extracts from the Australian Register of Therapeutic Goods[31] and internet extracts.[32] Other documents before the Tribunal included the following:
·a report by Cristina Ta, speech pathologist, JK Speech and Health Services, dated 31 May 2023, describing the Applicant’s speech therapy and an assessment of the Applicant’s language and communication abilities (Ms Ta’s report);[33]
·a report by Marina Amanoil Anwia, speech pathologist, dated 1 July 2024, indicating that the Applicant experiences mild difficulties with swallowing and discussing strategies to address this;[34]
·a report from Ms Angelica Leksokumoro, provisional psychologist, JK Speech and Health Services, dated 26 October 2022 indicating that the Applicant was receiving psychology services to address ‘anxiety and avoidance’ and that she had shown significant reduction in her anxiety and avoidance behaviours (Ms Leksokumoro’s report);[35]
·a funding request from JK Speech and Health Services for further occupational therapy for the Applicant;[36]
·a progress report from Nova Transition dated 5 April 2023 indicating that it was providing supports to the Applicant to build capacity for employment;[37] and
·a report from Advance Pathways.[38]
[31] R2, HB page 318.
[32] R3, HB page 344.
[33] T9, HB page 66.
[34] A3, HB page 296 at page 297.
[35] T3, HB page 56.
[36] T8, HB page 64.
[37] T5, HB page 59.
[38] A1, HB page 201.
CONSIDERATION
I have considered all the written material provided to the Tribunal in the Hearing Bundle, together with the oral evidence given by Mrs Vu at the hearing on 19 December 2024. I have also considered the Agency’s written submissions.
The 2024 amendments
Mrs Vu questions whether the 2024 amendments to NDIS legislation apply in the present situation. As set out earlier, the amendments to section 34 of the NDIS Act apply in relation to a SOPS included in an old framework plan for a participant if the SOPS is approved or varied on or after 3 October 2024. This means that if the Tribunal varies the Applicant’s current SOPS to include the requested supports, in doing so it must apply section 34 in its current form.
Regarding Mrs Vu’s contention that the legislative amendments in 2024 make special provision for existing plans, Mrs Vu is correct that there are some special provisions for SOPS approved prior to 3 October 2024 that have not yet been reviewed. Those provisions are contained in section 6 of the NDIS Supports Transitional Rules. They apply in very limited circumstances and do not extend to the present situation.
Relevance of correspondence in earlier proceedings
Mrs Vu emphasised the email she received in 2022 from a legal representative for the Agency. The Tribunal’s task is to review the SOPS in the 2023 plan in accordance with the law and available evidence, and the email in 2022 does not affect that task.
The requirements of paragraph 34(1)(aa) of the NDIS Act
In deciding whether a support is a reasonable and necessary support, the first requirement in subsection 34(1) of the NDIS Act is the requirement in paragraph 34(1)(aa) of the NDIS Act that the support must be necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (in section 24) or the early intervention requirements (in section 25).
The Note to subsection 34(1) of the NDIS Act sets out when the disability or early intervention requirements must be met. It also states that a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
Mrs Vu contends, as set out earlier, that the requested supplements serve two purposes, one of which is to address her daughter’s intellectual impairment. The Agency contends that paragraph 34(1)(aa) of the NDIS Act is not met. It concedes that the Applicant’s intellectual disability results in impairments in relation to which the Applicant continues to meet the requirements of sections 24 or 25 but submits that the requested supplements do not address needs arising from the Applicant’s intellectual disability.[39]
[39] Agency’s SFIC, HB page 1-17 at paragraphs 21 and 27.
The Agency further contended in oral submissions that, if it is asserted that the Applicant has some other impairment/s, such as slow metabolism, those impairment/s would not meet the disability or early intervention requirements in sections 24 or 25 of the NDIS Act . I accept that submission. Ms Chiew refers to the Applicant having a slow metabolism and Dr Mallia refers to a range of issues including obesity, liver dysfunction, ‘sugar cravings’, high mercury levels, iron depletion, insomnia, sleep apnoea, low zinc, and low Vitamin D. Based on the limited information available regarding these matters, I am unable to conclude, in relation to those issues, that the requirements of sections 24 or 25 of the NDIS Act are met. Those sections have very specific requirements. There is insufficient evidence that the matters referred to by Ms Chiew and Dr Mallia are an impairment, that the impairment is permanent, and that it results in substantially reduced functional capacity (as required by section 24) or that early intervention would result in reduced needs for supports (as required by section 25 of the NDIS Act).
The Applicant has been diagnosed with moderate intellectual disability. The Agency conceded, appropriately, that the Applicant has ‘impairments’ related to her moderate intellectual disability that meet the requirements of sections 24 or 25, but it does not identify those impairments. The material before me refers to matters such as impaired emotional management (including anxiety, impulsivity, avoidance behaviours, and difficulty regulating emotions)[40] and impaired language (including receptive and expressive language).[41] I am therefore satisfied that the Applicant has impairments related to her intellectual disability that meet the requirements of section 24 of the NDIS Act. Given the view that I have taken below, it is not necessary for me to determine those impairments more precisely.
[40] Ms Leksokumoro’s report,T3, HB page 37.
[41] Ms Ta’s report, T9, HB page 47.
The Applicant identified in her 2023 plan that one of her goals is to lose weight, develop healthy eating skills and improve her overall health, so that she can live a healthy and active lifestyle.[42] It is not in dispute that some supports, related to diet and nutrition, may be necessary to address needs of the Applicant arising from impairments related to her intellectual disability. The Agency accepts that the Applicant is at a higher risk of weight-related issues because of her intellectual disability.[43] It also acknowledges that the Applicant may have a limited understanding of her nutritional needs or issues with managing her diet on her own because of her impairment. The Agency therefore accepts that some additional support with diet and nutrition are likely necessary to assist with impairments associated with the Applicant’s intellectual disability.[44]
[42] R1, HB page 309.
[43] Agency’s SFIC, HB pages 1-17 at paragraph 27.
[44] Agency’s SFIC, HB pages 1-17 at paragraph 28.
However, the scope of the present review is limited to considering the requested supplements. For reasons that are set out below, I am not satisfied on the material before me that the requested supplements are necessary to address needs of the Applicant arising from impairments related to her intellectual disability.
Mrs Vu has observed improvements in her daughter’s functioning while taking supplements. She said that her daughter is able to do things like search the internet and look up Google Maps, that her daughter’s cognition has improved, and that her daughter is calmer and better able to understand things and focus. I accept Mrs Vu’s evidence that there have been changes in the Applicant’s functioning. However, I am unable to conclude on her evidence alone that those changes are related to taking supplements, particularly given the other therapies and supports that the Applicant has been receiving including occupational therapy as well as psychological therapy for anxiety and avoidance behaviours.[45]
[45] T3 and T8, HB pages 56 and 64.
Mrs Vu points to Dr Mallia’s letters as support for her contention that the supplements he recommends assist the Applicant’s intellectual disability. Dr Mallia recommends some supplements as treatment for unrelated conditions (Sleeptonin, for example, for insomnia and sleep apnoea).[46] Any connection he makes between the Applicant’s impairments related to her intellectual disability and the supplements he recommends are generalised, indirect connections.
[46] T1C, HB at page 21.
In his letter dated 17 February 2023, he refers to the Applicant’s ‘mental health’ becoming less severe and to her ‘mental wellbeing’ improving markedly and to addressing ‘health issues connected to her intellectual disability including her gut health, weight, and liver function’.[47] Similarly, in his letter dated 29 July 2023 he connects the supplements to improved mental wellbeing, as a result of taking an ‘organ system approach’ to the Applicant’s treatment.[48]
[47] T4, HB page 58.
[48] T1C, HB page 20.
These comments are broad and contain minimal explanation. They refer very generally to ‘mental wellbeing’ or ‘mental health’ rather than impairments related to the Applicant’s intellectual disability. They do not specify the nature of the marked improvements, the basis for stating that there have been marked improvements, or why the changes should be attributed to supplements. Dr Mallia also provides minimal explanation of the role of each supplement in that process. For example, in his letter dated 29 July 2023, Dr Mallia refers simply to Vega NAC as being used for ‘mercury detox and to improve Neurological function thereafter’, Glutagenics is described as being ‘for the Gut brain immune axis’, and Ultra Flora Intensive is for the ‘gut brain axis’.[49]
[49] T1C, HB page 39.
Even when Dr Mallia’s comments are considered together with Mrs Vu’s evidence regarding improvements that she observed, I am not satisfied on this evidence that the supplements recommended by Dr Mallia are necessary to address needs of the Applicant arising from impairments related to her intellectual disability. Two of those supplements are also recommended by Ms Chiew. In relation to those two supplements, for reasons that are discussed below, Ms Chiew’s report and Response to Targeted Questions (discussed below) do not alter that conclusion.
In Ms Chiew’s report and her Response to Targeted Questions, she recommends six supplements. Those supplements contain selenium, magnesium, Vitamin E, omega 3 fatty acids, iron and cystine. She recommends these because, based on her analysis of the Applicant’s diet over three days, the Applicant consumes below the recommended daily intake in those nutrients.[50]
[50] Ms Chiew’s Response to Targeted Questions, HB page 302.
Ms Chiew acknowledges that nutritional deficiencies could be addressed through dietary changes and therefore recommends the Applicant receive support from a dietitian. However, she says the Applicant has a slow metabolism, and because the Applicant has a slow metabolism, she must maintain low calorific intake to avoid weight gain, necessitating the use of supplements to meet her nutrient needs. The connection that Ms Chiew makes between the need for those six supplements and the Applicant’s impairments is a genetic one; she says the Applicant’s intellectual disability stems from a genetic disorder related to a chromosome abnormality (which Ms Chiew refers to as ‘15Q 26.3’) and that her slow metabolism and intellectual disability are genetically linked.[51]
[51] Ms Chiew’s report, HB at pages 296-7 and Ms Chiew’s Response to Targeted Questions, HB pages 302 and 304.
Even if the Applicant has a slow metabolism that is genetically linked to the Applicant’s intellectual disability, that does not assist in determining whether the six supplements recommended by Ms Chiew meet the requirements in paragraph 34(1)(aa) of the NDIS Act. I accept the Agency’s contention in this regard that the focus of paragraph 34(1)(aa) is on impairments, not the underlying cause of those impairments.[52]
[52] Agency’s SFIC, HB pages 1-17 at paragraph 6.
Ms Chiew’s report and answers provide no other cogent explanation for why the six supplements that she recommends are necessary to address needs of the Applicant arising from impairments related to the Applicant’s intellectual disability. Ms Chiew’s statements at times also fall outside matters on which she can comment (such as the cause of the Applicant’s intellectual disability) or provide minimal basis for her opinion (for example, that intellectual disability is usually an outcome of metabolic errors, requiring a special diet to restore normal metabolism[53]).
[53] A4, Ms Chiew’s Response to Targeted Questions, page 302.
Documents provided by the Agency (including documents from the Australian Register of Therapeutic Goods[54] and internet extracts[55]) contain details of the composition and possible uses of some of the requested supplements. However, this information is general in nature. It does not assist in determining whether the requested supplements are necessary to address needs of the Applicant arising from her impairments.
[54] HB page 318.
[55] HB page 344.
I am therefore not satisfied that the supplements Ms Chiew recommends are necessary to address needs of the Applicant arising from impairments related to the Applicant’s intellectual disability.
I am therefore not satisfied on the information before me that the requested supplements are necessary to address needs of the Applicant arising from an impairment in relation to which she meets the disability requirements in section 24 or the early intervention requirements in section 25. This means that the requirements of paragraph 34(1)(aa) of the NDIS Act are not met.
The Agency contends that other requirements in subsection 34(1) of the NDIS Act are not met, including the requirement that the supports must be an ‘NDIS support’. The Agency also contends that the requested supplements are health-related and, as such, are not most appropriately funded by the NDIS, and section 7 of the Miscellaneous Provisions Transitional Rules is therefore not met.[56] Given the view I have taken in relation to paragraph 34(1)(aa) of the NDIS Act, it is not necessary for me to consider these issues.
[56] Agency’s SFIC, HB pages 1-17 at paragraph 21 to 44.
This means that I find that each requested supplement is not a reasonable and necessary support pursuant to subsection 34(1) of the NDIS Act.
DECISION
The decision under review is affirmed.
1. I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of General Member A Colvin.
.....................SGD.............................
General Member A Colvin
10 February 2025
Date of hearing: 19 December 2024
Applicant: Mrs T Vu
Solicitor for the Respondent: S Rehayem, Maddocks Lawyers
Counsel for the Respondent: J Battiste
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