VXVL and National Disability Insurance Agency

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.