VXVL and National Disability Insurance Agency - [2024] AATA 29

VXVL and National Disability Insurance Agency [2024] AATA 29 (16 January 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/0839
Re:VXVL
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson AM
Date:16 January 2024
Place:Brisbane

Pursuant to section 42C(2) of the AAT Act, the Tribunal decides that the Respondent’s decision made on 10 February 2021 under section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) be set aside and remits the matter for reconsideration in accordance with directions that:
A.        From 10 February 2021 the applicant’s statement of participant supports specifies that the reasonable and necessary supports include:
(a)       An increase in Core Support – Daily Activities budget to access assistance with self-care, comprising:
(i)        16 hours support worker at the high intensity (level 2) rate for 16 hours per day, seven days a week for 12 months;
(b)       An increase in Core Support – Daily Activities budget to access:
(i)        8 hours active overnight care at the high intensity (level 2) rate for 7 nights a week for 6 months; and
(ii)       8 hours inactive overnight care at the high intensity (level 2) rate for 7 nights a week for 6 months
B.        Within 28 days of this decision, the applicant’s statement of participant supports specifies that the reasonable and necessary supports include:
(a)       An increase in Core Support – Social Community and Civic Participation to access social groups for 20 hours per week with 2:1 support worker assistance, including travel time and including the activities of:
(ii)       Surfing
(iii)      Horse riding
(iv)      Dancing
(v)       Drama
(b)       Approval for Home Modifications involving the addition of an ensuite bathroom to a bedroom in the main house as specified by Ms Tara Quinn in her Complex Home Modification assessment dated 16 June 2020 to the amount of $61,204.00;
C.       Assistive Technology Assessments should be conducted and funded for the applicant to trial seizure alert devices for a 6-month period;
D.       The support at (A)(b) above is to be reviewed 6 months from the date on which the support is included in the applicant’s statement of participant supports to allow for the applicant to trial and the respondent to assess the suitability of seizure alert devices; and
E.        The date by which the Respondent must reassess the applicant’s plan is to be 12 months after the date on which the supports in paragraphs (a)-(d) above are included in the applicant’s statement of participant supports.
...................................[SGD].....................................
Senior Member P J Clauson AM
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – severe epilepsy caused by rare genetic disorder – intellectual impairment – degenerative condition - applicant has intense and complex support needs - what it is reasonable to expect families, carers, informal networks and the community to provide – home modifications – value for money – whether there are comparable supports which would achieve the same outcome at a substantially lower cost – provision of social activities as therapy…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading VXVL and National Disability Insurance Agency

Details

AGLC: VXVL and National Disability Insurance Agency [2024] AATA 29
Case: [2024] AATA 29
Decision Date: 16 January 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the dispute between VXVL, the applicant, and the National Disability Insurance Agency (NDIA), the respondent, concerning the provision of reasonable and necessary supports under the National Disability Insurance Scheme Act 2013 (Cth). The applicant has severe epilepsy caused by a rare genetic disorder, an intellectual impairment, and a degenerative condition, resulting in intense and complex support needs.

The Tribunal was required to determine what constitutes reasonable and necessary supports for the applicant, specifically addressing the extent of support required from family, carers, and the community. Key issues included whether certain social activities should be considered therapy, the value for money of proposed supports, and whether comparable supports existed at a substantially lower cost. The Tribunal also considered when personally expended costs for reasonable and necessary supports should be taken into account.

The Tribunal's reasoning focused on the evidence presented by expert witnesses, particularly an occupational therapist, Ms. Jana Loadsman, who recommended 24/7 support at a 1:1 or 2:1 ratio due to the unpredictable and severe nature of the applicant's seizures, which posed risks of brain damage and Sudden Unexpected Death from Epilepsy (SUDEP). The Tribunal acknowledged the applicant's significant care needs and the substantial burden placed on her mother, finding that the mother's well-being and ability to provide care were compromised by her carer responsibilities. The Tribunal applied section 34(1)(e) of the NDIS Act, which mandates consideration of what it is reasonable to expect families to provide, and relevant rules regarding the provision of supports.

Ultimately, the Tribunal decided to set aside the NDIA's decision made on 10 February 2021. The matter was remitted for reconsideration, with the Tribunal directing that a 12-month plan, rather than the applicant's requested 24-month plan, was preferable due to the applicant's deteriorating condition and the need for more frequent review of her changing needs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

She stated that activities in a group environment are known to beneficially influence chronic pain, and that low-impact activities including swimming, horse-riding, surfing and group dance would prevent further deconditioning and improve the applicant’s quality of life.Evidence of Ms Jana Loadsman The applicant called Ms Jana Loadsman, Occupational Therapist, who had assessed the applicant on various occasions and provided subsequent reports dated 14 January 2020, November 2020, 7 April 2021, 20 June 2021 and 7 March 2022.[16] [16] T-Documents, T8; R2, Documents ST1; ST5 Ms Loadsman confirmed that, in her view, the applicant required 24/7 support at a 1:1 or 2:1 ratio. She referred to the applicant’s daily complex seizures and need for safety in the home and community. She described the applicant as an active member in her community with “choice and control” across her daily activities. Ms Loadsman explained that the applicant’s epileptic seizures made her oxygen-dependant which created a substantial risk of brain-damage and Sudden Unexpected Death from Epilepsy (SUDEP). She stated that, for a person with epilepsy, their highest rate of seizures were experienced when asleep or falling asleep and therefore the applicant required seven nights of active overnight care each week. The 24/7 support she recommended for the applicant was due to the ‘unexpected’ nature of the applicant’s seizures, stating:[17]“…because her seizures are so unexpected we can’t plan for them. We can’t anticipate when her next one is going to be. There’s no - like event - that show us that she’s going to have a large seizure and so - you know - always recommend that she has somebody with her 100 per cent of the time. And I guess that two-to-one support is in the event of the seizure.”[17] Transcript of Proceedings, page 22 lines 39 to 43. It was in the event of a seizure that Ms Loadsman prescribed 2:1 support for the applicant to have one person administer oxygen and another to call first aid support and ensure she was in a safety position. Ms Loadsman maintained that the applicant was “unable to maintain her own safety” and unable to do anything independently. When asked for her opinion on whether the applicant required 2:1 support at all times when in the community, Ms Loadsman stated that “it depends on the seizure they have…none of this is predictable. It’s just, you know, providing a duty of care to ensure that we’re reducing risk of harm”.[18] [18] Transcript of Proceedings, page 25 lines 1 to 3. Ms Loadsman was asked to confirm the circumstances under which she believed the applicant required 2:1 support on cross-examination, stating:“it depends every single day for that postictal period depending on the severity of her seizures on any given day at any given time will depend on the level of care that she requires at the time. Certainly through the day and through the night…And whether that happens during the day or through the night, it’s hard to predict. I don’t - there’s not one person on this planet that could predict when she’s going to need it.”

Decision

Reasons for decision

The applicant has requested a 24-month plan. The Tribunal refers to the evidence of Dr Malone at paragraph [198] above of the applicant’s deteriorating condition. A 12-month plan provides for more frequent review of the changing needs of the applicant and is therefore the preferable approach.DECISION Pursuant to section 42C(2) of the AAT Act, the Tribunal decides that the Respondent’s decision made on 10 February 2021 under section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) be set aside and remits the matter for reconsideration in accordance with directions that:

Ratio Decidendi

Legal Principle Established

Dr Malone stated 1:1 care is “definitely appropriate” for the applicant with modification required in certain situations, such as when the applicant goes out and one person is driving and another needed to assist in the car or during the night when the applicant’s seizures are most frequent.CONSIDERATIONSupport worker assistance Each witness in this matter has spoken to the constant level of supervision and care needed to manage the applicant’s condition, and there no doubt left before the Tribunal that the applicant requires 24/7 care. The evidence conclusively states, and the respondent does not dispute, that a minimum level of 1:1 care is required to assist the applicant during the 16-hour daytime period. The question is whether it is reasonable to expect the applicant’s mother to provide care for two of those hours each day. Expert witnesses were asked to weigh in on this question. Ms Haugh found it reasonable to expect M to provide care for four hours each day, and Dr Schulz-Robinson saw no reason why two hours each day could not be expected. Dr Malone deferred any conclusive recommendation to the needs of the applicant’s mother, who was of the firm opinion she can no longer sustain her role as a carer for the applicant even for two hours each day notwithstanding how those hours may be spread out over a week. Section 34(1)(e) requires consideration of what is reasonable to expect the applicant’s family to provide. Rule 3.4(a) is relevant to the period since the decision under review until the applicant’s 18th birthday in September 2022 and Rule 3.4(b) thereafter. Rule 3.4(a)(i) is a broad proposition and the applicant’s mother has clearly provided such substantial care and support. There is sufficient evidence that the applicant is has significant care needs in relation to her epileptic seizures and intellectual disability such that Rule 3.4(a)(ii) is satisfied. The applicant’s mother has borne substantial caregiver responsibilities managing the severe and complex nature of the applicant’s condition. She describes herself as “sleep deprived and depressed” when she provides 1:1 formal support for her daughter and unable to attend to her own self-care needs. M’s experience is consistent with the stated experiences of the applicant’s other carers, who refer to the constant demands of the unpredictable and severe nature of the applicant’s seizures and the difficulties in providing such care for multiple nights a week and over an extended period of time. There is overwhelming evidence that applicant’s care needs present real risks to the well-being of her mother and carers, and that this in turn compromises their ability to care for her. These risks have been realised in the carer burnout, sleep deprivation and depression referred to in the stated experiences of M and the applicant’s carers and in observation by treating professionals. Rule 3.4(a)(iii) is satisfied. In her report of May 2022 Ms Haugh spoke to the needs of the applicant as follows:“Overall, VXVL’s function is impacted by physical and cognitive deconditioning and there are interventions available which are designed to increase her overall function and independence albeit in VXVL’s case these improvements will only be to a minimal effect due to the nature of her disabilities. The above outlined interventions are noted to improve VXVL’s quality of life and agency in her life; however, it is noted even with the implementation of these interventions VXVL will be unable to independently function without the requirement of 24/7 1:1 support provided in a combination of formal and informal supports.”