Warwick and National Disability Insurance Agency
[2023] AATA 3093
•28 September 2023
Warwick and National Disability Insurance Agency [2023] AATA 3093 (28 September 2023)
ReviewNumber: 2021/8101, 2023/1209
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/8101
2023/1209
Re:Carle John Warwick
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:The Hon Pru Goward AO, Senior Member
Date: 28 September 2023
Place:Sydney
In respect to matter 2021/8101, the application for review made on 28 October 2021 is dismissed by the Tribunal due to lack of jurisdiction, pursuant to section 42A (4) of the Administrative Appeals Tribunal Act 1975 (Cth).
Secondly, in respect to matter 2023/1209, the Tribunal affirms the decision under review made by the delegate dated 20 February 2023, pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
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The Honourable Pru Goward AO, Senior Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME (NDIS) – jurisdiction – reasonable and necessary supports – relocation costs – value for money – effective and beneficial – home modification – retrospective – prospective-reimbursement – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013CASES
Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 420
National Disability Insurance Agency v WRMF [2020] FCAFC 79 FCR 415
Palin and National Disability Insurance Agency [2023] AATA 94
Pearce and National Disability Insurance Agency [2022] AATA 3608
Rogers and National Disability Insurance Agency [2022] AATA 2809
Totten and Secretary, Department of Social Services (2016) [2016] AATA 240SECONDARY MATERIALS
Operational Guidelines: Including Specific Types of Supports in Plans Operational Guideline- Overview; the Guidelines
REASONS FOR DECISION
The Honourable Pru Goward AO, Senior Member
28 September 2023
INTRODUCTION
The Applicant is a 69-year-old man with a diagnosis of Parkinson’s disease. He became a participant in the National Disability Insurance Scheme (‘the Scheme’) on 26 March 2018, and his first plan was approved on 9 April 2020 (Plan A).
Over the course of 2020 and early 2021, the Applicant’s condition deteriorated. The family decided to sell the Applicant’s current home and ultimately relocated to a house closer to their daughter, which they considered would be more suitable for him. His daughter, the Applicant’s representative, then commenced negotiations with the Respondent for additional supports (in the form of relocation costs) to be included in the participant’s Statement of Supports (SOPS), before Plan A’s expiry date of 9 April 2021.
Following the expiry date for Plan A (9 April 2021), the Applicant’s supports continued, as did negotiations with the Respondent regarding the relocation costs sought by the Applicant.
On 23 July 2021, a new plan (Plan B), was approved for the Applicant. This Plan did not include the relocation supports requested by the Applicant.
On 5 October 2021, the Applicant sought review of Plan B; specifically, to include reimbursement of his property transaction and removal costs to a new property.
On 8 October 2021, the Respondent confirmed the earlier decision to approve the SOPS in Plan B and rejected the Applicant’s request for reimbursement. The Respondent found the requested supports did not meet the “reasonable and necessary” criteria under s 34 of the Act.
On 28 October 2021, the Applicant applied to the Tribunal for review of the decision to confirm the SOPS in Plan B, the first Application. The Respondent contended that the first Application is not reviewable by the Tribunal, that is, the Tribunal does not have jurisdiction to review this decision under s 42 A (4) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’).
On 26 February 2023, the Applicant filed a second application. Although the disputed supports in the two applications are the same (reimbursement costs for the Applicant’s relocation), the second application seeks review of a decision deemed to have been made by the Applicant on 20 February 2023, when it failed to review an earlier decision to approve a SOPS dated 9 April 2021. The Respondent contended that the second application was also not reviewable by the Tribunal under s 42 A(4) of the AAT Act.
The two applications were listed for an interlocutory hearing (Interlocutory) by the Tribunal on 21 April 2023 to determine whether either application was within the jurisdiction of the Tribunal. The Interlocutory was preceded by several days of written questions from the Tribunal, followed by additional submissions and answers provided by the parties. At the Interlocutory, I indicated that I considered evidence from witnesses would be helpful in determining jurisdiction and therefore reserved my decision, pending any additional evidence gleaned from the substantive hearing set down for 8 and 9 June 2023.
THE JURISDICTIONAL ISSUE
The central jurisdictional issue is whether the funding supports (reimbursement of relocation costs) being sought by the Applicant in either the first or second application is reviewable by the Tribunal. If either application is reviewable by the Tribunal, the Tribunal may then consider whether the relocation costs are a reasonable and necessary support, and therefore reimbursable by the Respondent.
The issues in the two applications differ. In the first Application it is whether Plan B was able to include relocation costs which were incurred before that plan commenced. The jurisdictional question in the second Application relates to the status of the funding arrangements in place between the expiry date of Plan A and the commencement of Plan B.
Legislative and Operational Guidance regarding Jurisdiction
The relevant legislative provisions in the National Disability Insurance Scheme Act 2013 (the Act) are those applying before the commencement of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022. For completion, these are: ss 33 (2); ss 37 (1) (b); s 37 (3) 9 (a); s 48 and s 100(6) (a).
Furthermore, I note that the Applicant has also relied upon s 43 (6) of the Administrative Appeals Tribunal Act 1975 (Cth).
The first Application is concerned with whether the translocation costs incurred before the approval of Plan B can be considered as part of Plan B and therefore reviewable by the Agency and by the Tribunal.
The second Application is concerned with whether the supports provided during the so-called extension period (between the expiry of Plan A and the approval of Plan B) resulted from an implicit (or actual) plan review under s 48 of the Act, requiring, as the Respondent has put it, “a decision to approve a new SOPS under s 33(2) of the Act” and [therefore] a right of internal review under s 100(2) of the Act, or did not result from an implicit (or actual) review under s 48 of the Act.
REASONABLE AND NECESSARY SUPPORT ISSUES
The issues concerning whether the requested supports are reasonable and necessary rest on the requirements of s 34 of the Act. However, before they can be addressed, it is necessary to decide whether the Tribunal has jurisdiction to hear either of these applications.
BACKGROUND
The Applicant was diagnosed with Parkinson’s Disease and became a participant in the Scheme in 2018. His first plan, Plan A, was approved on 9 April 2020 for one year until 9 April 2021.
The Applicant and his wife lived in a house they had jointly owned in Thornleigh, NSW, for many years. The split-level house was built into the side of a hill and traversing the property entailed moving over uneven terrain and several steps of stairs of varying accessibility.
In January 2021, considering the Applicant’s declining mobility, his house was assessed over several site visits by an occupational therapist (OT), Ms Anita Green, for complex home modifications. Her OT Report was submitted on 3 March 2021 (that is, during the period of Plan A). A supplementary OT report (Supplementary Report) was submitted on 29 July 2021, during the period of Plan B.
Meanwhile, on 26 February 2021, the Applicant, purportedly (resulting from discussions with his family and the OT during the assessment period), sold his house in Thornleigh. He then moved to his daughter’s house while he and his family searched for a more suitable home. A new home at Westleigh, close to his daughter’s residence, was purchased on 31 May 2021.
It is not disputed that the transaction costs associated with the sale of the Thornleigh house and purchase of the Westleigh house occurred after the expiry date of Plan A on 9 April 2021, and before the commencement of the Applicant’s subsequent plan, Plan B, on 23 July 2021. It is not disputed that the transaction costs were not first approved by the Respondent and are being sought as reimbursement.
The Respondent submitted that a review under Division 4, s 48 of Plan A was conducted on 23 July 2021 (the date that Plan B was approved).
The Respondent submitted that it failed to conduct a review of Plan A as required under Division 4, s 48 (5) of the Act, before the expiry of Plan A on 9 April 2021.
The Applicant submitted that the question of relocation costs was raised on several occasions by the Applicant’s Representative, who sought assurances that those costs would be met by the Respondent as a form of support for the Applicant. The first instance of the Applicant seeking to have relocation costs considered by the Respondent was, according to the Applicant’s representative, 16 March 2021, before the expiry of Plan A.
The Tribunal notes that the opportunity to vary a participant’s plan was not available at the time of these events, that is, prior to the proclamation of relevant amendments to the Act in July 2022. Rather, plans could (at the time) only be replaced by new plans under Division 4, either resulting from a change in the Participant’s Statement of Goals and Aspirations (which did not occur), or a s 48 review of the Act by the CEO. In other words, if the Applicant wanted relocation costs included in the Participant’s plan, Plan A needed to be replaced by a new plan resulting from such a review. Then, if the new plan did not provide the requested costs, it would be open to the Applicant to seek internal review and ultimately review by the Tribunal.
The Tribunal notes that retrospective funding of supports (reimbursement) is not an ideal practice and runs counter to the prospective outlook of the Act, which requires that supports be approved before they are funded. Applicants and participants who purchase supports without the approval of the Agency carry the risk alone. However, there have been cases where the Tribunal has approved costs retrospectively when they have been determined to be reasonable and necessary (s 34 of the Act) and the circumstances have been supportive.
RELEVANT CASE LAW
In the first Application, the Applicant contended that the beneficial nature of the Scheme is “incongruous” with only meeting a support need from “the arbitrary date when a delegate of the CEO approve[s] a SOPS”. The Applicant further contended that the “deficient administrative decision-making by the Respondent of the Applicant’s request for relocation costs, the iterative nature of the process of preparing such a plan, “which can be responsive to needs which arise earlier than the date of the approval decision” and s 43(6) of the Administrative Appeals Tribunal Act 1975 (Cth), “permits the Tribunal to order that its decision shall be deemed to have effect from a date prior to the original decision”. The Applicant emphasised that the “information about the need for relocation costs was before the Respondent from 9 March 2021”.
The Applicant relied upon Totten and Secretary, Department of Social Services (2016) [2016] AATA 240, including its references to “erroneous decisions”, “the length of any delay” and “information provided by the applicant” as relevant to “the appropriateness of exercising the power to backdate the decision”. In this case, the Applicant argues the “alleged lack of jurisdiction is the direct result of the Respondent’s failure to comply with its statutory obligations” which a “beneficial interpretation of s 43 (6) would remedy”.
The Respondent relied upon Rogers and National Disability Insurance Agency [2022] AATA 2809 (‘Rogers’) and Palin and National Disability Insurance Agency [2023] AATA 94 (‘Palin’) to confirm that the supports to be funded must be relevant to the SOPS under review. Specifically, in Rogers, “a decision maker may consider the supports that could have been specified for the period a decision is in effect, but not the period where another decision was in effect”. The “necessarily prospective” nature of a SOPS, observed in Palin, is reflected in the language of the Act, “which contemplates supports that will be funded”.
The Respondent took issue with the Applicant’s use of s 43 (6) of the AAT Act to remedy the problem of changing circumstances, relying upon Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 420 (‘Makasa’). This unanimous judgement of the High Court concluded, “like any other legal fiction, the deeming effected by s 43 (6) of the AAT Act cannot be taken to have a legal operation beyond that required to achieve the object of its enactment…to bring finality to the administrative decision-making process”. The Respondent’s SOFIC states (at p 26):
“There is no power for a decision maker within the scheme to retrospectively set the date from which a plan will take effect…there is a linear progression of plans”.
The Applicant disagreed that Makasa was appropriately applied by the Respondent, arguing the reference to “deeming” applies to the deeming of a decision maker, not the deeming of the date of effect of a decision. The Tribunal struggles to find where that distinction is elucidated in Makasa and does not accept the Applicant’s interpretation.
The Tribunal notes the Applicant’s observation that the amendments to s 47 of the Act were made to improve the process of varying a Participant’s plan to account for changing or declining circumstances. This also underscores the fact that, at the time, the Participant’s plan could not be altered but could be replaced, subsequent to a s 48 review. If the Parliament had considered the application of s 43 (6) of the AAT Act sufficient to remedy the difficulty posed by retrospectively approving supports to accommodate a participant’s changing or declining circumstances, it may not have so changed sections 37 and 47 of the Act.
Having considered the contentions of the parties, the Tribunal finds that Makasa, as relied upon by the Respondent, significantly limits the application of s 43 (6) to a statutory scheme of this nature. Furthermore, the difficulty of retrospectively adding supports was recognised by the Parliament itself, which led to the amendments and expansion of s 47 allowing the CEO to vary the plan (under ss 47A (1)) as referenced by the Applicant.
The Tribunal also considers that while the Applicant has referenced the Respondent’s tardy administrative processes, the application of s 43 (6) to Plan B, as outlined in the first Application, is not appropriate remedy.
The second Application, as the substantive hearing confirmed, partially relies on the evidence available concerning the nature of the Respondent’s efforts to address the request for relocation costs made by the Applicant, but it begins with consideration of the limitations of s 37 of the Act, as it was at the time, and its implications for the status of any changes to the content of a plan.
Here, the reasoning in Pearce and National Disability Insurance Agency [2022] AATA 3608 (‘Pearce’) is, in the Tribunal’s view, critical to determining the nature of the funding arrangement in existence between 9 April 2021 and the new plan, Plan B, approved on 23 July 2021.
In Pearce, the decision, while concluding that the Tribunal did not have jurisdiction to review the supports, considered that for a plan to provide support beyond its review date, it must be a new plan, rather than an “auto-extension” of the previous plan. In Pearce, it was determined that an extension of a plan, with additional funding, in fact was a new plan and, therefore could only have arisen as a result of an implicit review of the participant’s plan (under Division 4 of Part 2). As noted in Pearce, “absent such a review and resultant plan, the respondent’s adoption of a new review date and …additional funding would have constituted an invalid exercise of administrative power.” A review and decision to approve a SOPS for inclusion in the new plan, were, accordingly, “presume” [d] in the Pearce decision.
The absence of any legislative basis for extending an existing plan, instead requiring the Respondent to review a plan within its timeframe of existence, may have been problematic for this Respondent, which acknowledged its significant and growing workload and the inevitability of delays. The Parliament’s amendments to sections 37 and 47, notably the inclusion of new 47A (1), provided a legislated solution to these delays, obviating the need for reliance on the so-called “auto-extensions” (the italics are the Respondent’s and serve to underscore the absence of the term in the legislation, Rules, or attendant guidelines) as a convenience for managing its backlog. That was the situation in Pearce and, on the evidence provided to the Tribunal, in the present case.
The logic of Pearce is the assumption (prior to 1 July 2022) that a valid plan must exist at all times for participants, and that new plans necessarily result from reviews of SOPS by the end date of previous plans. Clearly, the NDIS scheme was originally intended to provide a seamless process of review and update so that supports remained relevant to a participant’s needs. Section 48 (5) was meant to ensure continuous funding. But the legislation had failed to accommodate the role life plays in disrupting perfection; as the Respondent has observed: “there will inevitably be some occasions…that a reassessment will not occur by the scheduled review date”. The heavy workload and the inevitability of delays and fractures to the process eventually required the s 37 and 47 amendments previously referenced.
The Respondent disagreed with the decision in Pearce and instead contended that “where there has been an administrative change to the plan end date listed on the Agency’s systems this would not constitute an invalid exercise of administrative power or result in an implicit plan review under s 48 of the Act”. The difficulty with this proposition is that, in the absence of any legislative basis for the continuation of a plan merely as the outcome of the “Agency’s computer systems”, the Respondent must have either invalidly exercised power or implicitly reviewed the plan. The Respondent’s poor record keeping concerning meetings with the Applicant or identifying what process the employees of the Respondent believed they were following, makes it difficult to adduce evidence either way of invalid exercise of administrative power, and this has not been contended by either party. As in Pearce, the inference of an implicit review is the only other explanation, as contended by the Applicant.
During submissions, the Respondent reasoned that the Applicant’s efforts during this period to have his deteriorating condition and changing needs reflected in his future plan were not relevant to the question of jurisdiction. While that is obviously strictly true, the Tribunal notes these efforts support the notion that the Respondent’s staff, as referenced in correspondence and file-notes by them and attested to by the Applicant’s representative at the hearing, were attempting to deal with the Applicant’s changing needs, in what might be regarded as some poorly executed form of review. Further, as the Applicant reasoned, had the Respondent managed its workload effectively, a decision about the inclusion of translocation costs could have been made, one way or the other, whilst they were still prospective.
The Respondent made the case that that the Applicant proceeded to buy his new house without the agreement of the Respondent, and now seeks reimbursement. I agree that reimbursement is not ideal. However, the Respondent’s legal case seems to rest on the proposition that at no point was there a plan which the Applicant could have sought to have reviewed, with the convenient interim period of the “auto-extension”, the time when the housing transaction occurred, being specifically excluded by the Respondent. This would not appear to be the intent of the legislation.
In this case, the Tribunal finds, considering the arguments and evidence provided in submissions and at the hearings, that there was a new plan review date set and additional funding provided to the Applicant upon the expiry of Plan A. Further, that this constitutes a new plan, A2, beginning 9 April 2021, rather than the “auto-extension” referenced by the Respondent.
Having established that a decision was made to commence a new plan (and SOPS) on 9 April 2021, the question then arises as to the appropriate window for review of the decision to approve a new SOPS. The Applicant contended he was never formally advised of the new plan on 9 April 2021, and only discovered that there was additional funding when his Representative made a claim, sometime later. The Applicant contended that without written notification of a new plan and advice that the person may request a review, under the provisions of s 100 (1) of the Act, he was not bound by the usual three-month limit on the request for an internal review. Instead, he requested such a review on 22 November 2022. The Applicant further contends that since the Respondent did not make a decision within the 90-day prescribed period, it is therefore deemed to have made a decision to confirm the original decision, consistent with s 25 (5) of the AAT Act. The Applicant filed an application for review to the Tribunal in February 2023.
The Respondent has not disputed this chronology and accordingly, the Tribunal accepts the chronology provided by the Applicant.
CONCLUSION
The Tribunal concludes, having considered the evidence provided and having found that the “auto-extension” of Plan A, so described by the Respondent, was a new plan, Plan A2, that the Applicant properly sought internal review of this decision and, also properly, applied to the Tribunal for review of the reviewable decision under s 103 of the Act. Accordingly, the Tribunal has jurisdiction to hear this matter.
REIMBURSEMENT OF THE APPLICANT’S RELOCATION COSTS AS A REASONABLE AND NECESSARY SUPPORT
LEGAL FRAMEWORK
This review relies upon s 34 (1) of the Act, which sets out the requirements of a reasonable and necessary support. Particularly, the Respondent relies upon paragraphs 34 (1) (c), value for money; and s 34 (1) (d), effective and beneficial, which are outlined below. It may also rely on the residual discretion available in s 33(2) of the Act. Additionally, the Support Rules 3.1, 5.1 and 5.2 require satisfaction and the decision must at least be consistent with the Support for Participant Guidelines.
Relevant Sections of the Act
Criterion under s 34(1)(c) - Value for money
In deciding whether 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, the CEO (and the Tribunal) is to consider the following matters:
(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 cost of purchasing or leasing the equipment or modifications; and
(ii) whether there are any expected changes in technology or the participant’s 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 cost 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).
Criterion under s 34(1)(d) - Effective and beneficial
In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary, seek expert opinion.
Residual Discretion
Potentially, s 33 (2) of the Act provides the Respondent with residual discretion, which would therefore also be available to the Tribunal. This need only be considered if the requested supports are found to be reasonable and necessary.
Relevant Support for Participant Rules
Support for Participants Rule 3.1 also sets out the requirements for establishing that a support is value for money in accordance with s 34 (1) (c), while Rules 3.2 and 3.3 set out the requirements for establishing that a support is effective and beneficial in accordance with s 34 (1) (d) of the Act.
The requested support must also satisfy the requirements of Rule 5.1 and 5.2 of the Support Rules. This is a general requirement which stands apart from s 34 and specifies the conditions under which a support will not be funded. For completion the rules are as follows:
5.1 A support will not be provided or funded under the NDIS if:
(a) it is likely to cause harm to the participant or pose a risk to others; or
(b) it is not related to the participant’s disability; or
(c) it duplicates other supports delivered under alternative funding through the NDIS; or
(d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b) costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
In this case, the day-to-day nature of the relocation support, which would ordinarily be excluded by R5.1, is the relevant consideration. It should be noted that the Operational Guidelines also stipulate that relocation costs such as those incurred by this applicant are everyday costs because they are incurred by Australians irrespective of their disability. A significant factor in making this determination is whether the costs were incurred solely and directly as a result of their disability support needs, thus meeting the exception requirements of R 5.2.
Relevant Guidelines
Whether a requested support is reasonable and necessary requires the decision maker to also take account of the Respondent’s Operational Guidelines.
Relevantly, the Operational Guidelines (Home Modifications, Moving House) specify the considerations that need to be made before purchasing a new property, stating:
If you want us to fund the cost of moving house, you’ll need to give us evidence, like a report from a home modification assessor, that shows:
·your need to move house is related to your disability
·moving house is more likely to be value for money than completing home modifications to your current home
·your new house will be appropriate for you with minimal modifications or none at all.
EVIDENCE
The Tribunal has had regard to various material before it, including:
·Section 37 T-Documents filed 16 November 2021
·Supplementary T-Documents filed 19 April 2023
·Applicant’s updated bundle of evidence filed 15 February 2023
·Report of Helen Wood dated 8 April 2022
·Updated Statement of Melannie Hogan dated 30 May 2023
·Respondent’s Schedule of Costs filed 7 June 2023
·Respondent’s Chronology filed 7 June 2023
·Applicant’s Schedule of Costs filed 9 June 2023
·Document containing Applicant’s amendments to Chronology 9 June 2023
·Respondent’s post hearing submissions dated 21 August 2023
·Applicant’s amended post hearing submissions dated 22 August 2023
Oral evidence
The Tribunal also heard oral evidence from Melannie Hogan and Anita Green.
CONTENTIONS
The Respondent contended that the relocation costs do not represent value for money and therefore do not meet the requirements of s 34 (1) (c), value for money. This involves “more than determining the cheapest option, it involves assessing the quality and cost of the alternative supports”.
The Respondent also contended in relation to s 34 (1) (c), value for money, Rule 3.1 of the Support Rules must be applied and, in this case, had not been met. Rule 3.1 requires the CEO (the decision maker) to consider several matters which would assist in determining value for money, set out in R 3.1 (a) –(f). The Respondent contended there was little or no evidence that by moving to his new and more expensive home, the applicant was likely to reduce the cost of the funding of future (emphasis added) supports for the participant in the long term, as Rule 3.1 (c) requires. Further, that there was no evidence of the cost or extent of any [future] modifications that were needed to the original home at Thornleigh (Page 43 of Respondent’s SOFIC) which would be the appropriate comparator in applying R 3.1 (c).
The Applicant contended that the costs and benefits from relocation make this option better value for money, satisfying the requirements of s 34 (1) (c). The Respondent contended that it was not appropriate to compare, as part of a cost/benefit analysis, the costs of modification to the transaction and removal costs in this case, where the new home also needed significant modification. Accordingly, the Respondent included the significant modification costs the Applicant incurred at the new home (the installation of the stair climber and the bathroom renovations) as part of the relocation costs.
The Respondent further contended that the relocation to the Applicant’s new property did not meet the Applicant’s accessibility needs and, because more than minor modification to that property was required before the Applicant could occupy the house (the installation of the stair climber), with potentially more modifications required in future, therefore the requirements of s 34 (1) (d), effective and beneficial, were also not met. The Applicant rejected this contention.
The Respondent contended again that the requirement of Supports for Participants Rule 3.1 (c), which requires an assessment as to “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” had not been met and therefore the requirements of s 34 (1) (d) were again, not met. The Applicant rejected this contention.
The Respondent contended that the requirements of Rule 5.1, which sets out the general criteria for supports which will not be provided or funded under the NDIS, are met. In particular, that R 5.1 (b) the support, “is not related to the Applicant’s disability” is met in this case, and also R 5.1 (d), which excludes a support if it:
“relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs”.
The Applicant rejected this contention regarding R 5.1.
Similarly, regarding R 5.2, the Respondent contended (and the Applicant rejected) that the relocation did not represent an exception to Rule 5.1 (d). The exception to that, contained in R 5.2 (a), is that funding will be provided if the additional day-to-day living costs are incurred “solely and directly as a result of their disability support needs”, which the Respondent contended was not the case.
The Respondent also relied upon the Home Modification Guidelines (Moving House), which are claimed not to have been met and which support s 34 (1) (c) and (d) of the Act, and the Rules 3.1,5.1 and 5.2.
Finally, the Respondent contended that the availability of residual discretion to reject the support (s 33(2)), even if relocation was determined to be a reasonable and necessary support, applies to this case. The Respondent relied upon recent case law and Agency Guidelines, which require that “a clear and direct link” be established between one or more of the participant’s goals and the proposed supports (the relocation costs).
The Applicant contended that s 33 (2) is unlikely to have applied to supports determined to be reasonable and necessary under s 34.
FURTHER BACKGROUND
Although this decision has already referenced some background relevant to the jurisdictional issue addressed earlier, the Tribunal considers it helpful to set out the chronology of events regarding the Applicant’s decision not to proceed with modifications to the old home but to sell it and purchase a new home.
The Applicant sought the advice of an OT, Anita Green, regarding necessary modifications to the old home in December 2020. The steep terrain of the house block and the four internal levels of the house necessitated several site visits during January 2021. Ms Green eventually concluded that the addition of ramps, a lift, bedroom, and bathroom modifications would enable the Applicant to live there, but with limitations. Ms Green told the hearing that after the family advised her of their decision to sell the old home, that her “directions…went towards relocation” and in her Complex Home Modification Assessment Report (the first Green report) dated 9 March 2021, she advised that relocation was the preferred option. The Respondent did not challenge the assessment of the Applicant’s declining condition and his increasing needs.
The Applicant’s daughter, Melannie Hogan, who was also his representative, told the hearing that she decided during the initial site meeting with Ms Hogan on 8 January 2021 that it was not feasible for her parents to remain in the old house, and that they should sell it and purchase a more suitable property. She acknowledged that her parents had not initially believed they should leave. Ms Hogan was an intelligent and decisive witness and doubtless made her judgment based on what she considered to be the interests of her parents.
The Applicant commenced meetings with a real estate agent on 21 January 2021. Ms Green, by then drafting a report on the best way of modifying the old home to support the Applicant, was advised on 11 February that the family had decided to relocate. Fifteen days later, on 26th February 2021, the Applicant signed a contract to sell the old home.
The first Green report of March 9 2021 recommended relocation as the existing conditions were “not sustainable” and that relocation was “more likely to be value for money than completing home modifications”. This report included a quote from KB Hansen Constructions, which advised that the cost of modifying the old home was $108,000. In addition, estimated development application costs of $20,000 and project management fees of $12,800 were included, based, as she told the hearing, on Ms Green’s experience. At the hearing, Ms Green also confirmed estimated additional costs of engineer, architect, site surveyor fees, with a total maximum cost of $155,800.
The claim for relocation costs submitted by the Applicant amounted to $114,417.12. These included real estate fees, stamp duty, conveyancing fees and removalist costs.
THE ISSUES
The Tribunal must decide whether the Applicant’s relocation was value for money compared with modifications to the old home, accounting for the different benefits of the options, as well as their different and somewhat indeterminant costs, and whether the relocation was likely to be effective and beneficial for the Applicant. Significantly, this includes the cost of future modifications required as the Applicant’s condition declines further.
However, as the Respondent asserted several times, and the Tribunal accepts, the retrospective nature of this application means that some of the Applicant’s assertions, such as his need to relocate because of disability-related needs; that the new home was purchased solely and directly on the basis of his disabilities; or his claimed value for money from relocation, cannot be confirmed by the decision maker in the same straightforward manner as would occur if the request for relocation costs had been made prospectively. Prospectively, more, and more reliable, information would have been available to the decision maker about the suitability of the new home as well as relative costs and benefits of modifying the old home or moving to the new home. Accordingly, the Tribunal’s decision relies on limited evidence about whether the Applicant’s move to his new home was decided on the basis of his disability related needs, or on everyday considerations, such as his wish to be closer to his daughter and her family and the ageing of his wife and himself. Similarly, assessing the future costs of modification to the old home compared with the new home is based on limited evidence, although the Tribunal appreciates that estimates of what might be needed in the future are inevitably constrained by uncertainty.
EVIDENCE
THE NEED FOR ADDITIONAL SUPPORT
In light of the Applicant’s declining condition, as outlined by the Applicant and not contested by the Respondent, it appears the Applicant required additional supports, in the form of adapting his living circumstances to accommodate his declining mobility and balance.
The Applicant’s daughter gave evidence that his mobility and functionality declined sharply in a six-week period, around new year 2021. As the Hogan Statement described it:
The progression of Dad’s disease was particularly rapid over the period of November 2020 to January 2021…his ability to ascend and descend stairs became particularly precarious. He would hold onto the rungs underneath the handrail with one hand and use the wall on the other side for support…By around the start of 2021, dad hardly ever left the Old Home…It would take between 20 and 30 minutes to get inside the house from the car.
The family also became increasingly concerned that his safety was at risk in his current circumstances. The daughter evidenced a fall several years earlier, which had resulted in prolonged hospitalisation, and was accompanied by a warning that a further fall could be “catastrophic” for the Applicant.
The Tribunal also accepts the advice of the OTs that such a decline is consistent with the progressive nature of Parkinson’s Disease and the Respondent did not challenge the Applicant’s claim or request further evidence of his decline.
The Respondent’s submissions did not disagree with Ms Green’s assessment of the overall unsuitability of the old home and the safety concerns it posed for the Applicant, nor of the impact the isolation suffered by the Applicant may have had on his mental health, as observed by his daughter.
Accordingly, two options were available to the Applicant; to modify his existing home or to buy a new home which supported his disability related needs. The Operational Guidelines stipulate that for relocation to be supported by the Respondent, there must be either no, or minor, modification of the new home. That the Applicant decided to relocate, perhaps precipitously, and without either completing the cost benefit assessment of the two options or waiting for the Respondent to commence the decision-making process outlined in the Guidelines, does not obviate the Applicant’s need to either relocate or modify his old home. In light of this, the Tribunal’s determination of whether the relocation constituted value for money, as required in s 34 (1) (c) is based on comparison between relocation to a new home and modification of the old home.
Modifying the old home
The evidence provided in the first Green report and by the Applicant’s daughter’s statement, the Hogan statement, as well as oral evidence provided by both Ms Green and Ms Hogan during the hearing, describes a house block of extremely difficult terrain, over several levels, with the house itself split on four levels.
The first Green report (page 29) summarised the various modifications required to the old home in the following terms:
“Modifications of the bathroom were considered, however given the additional challenges of the carport steps, front stairs and rail, front door and bedroom modification needs, and the costs associated with these modifications; along with the additional physical demands these modifications place on John’s family and carers, the OT recommends relocation for John to continue to live safely and independently within the home environment”.
The Respondent did not disagree with these assessments, nor that the 15 steep internal stairs would remain inaccessible to him, and therefore his office was “impossible” for him to reach from inside his house. The OT’s opinion that the proposed modifications would still not enable him to access the kitchen and the larger part of his garden, was also not contested by the Respondent and accordingly, these limitations, which would have remained after the proposed modifications to the old home had been completed, are accepted by the Tribunal.
Further, the costs of modifying the old home were presented in a table developed by the Respondent and modified by the Applicant. These proposed modifications were based on Ms Green’s assessment of the Applicant’s impairments which was accepted by the Respondent, as he observed in final submissions:
She was a perfectly good witness … in relation to the evidence she gave about what she did as part of the assessment process.
Relocation to the new home
The Applicant purchased a new home within a one-minute walk of his daughter’s home. It was more expensive, larger, and more modern than his old home. Although the block was level, the house was two storied and the Applicant needed to modify the house, by either installing a stair climber so he could access the upstairs bedroom and bathroom or partitioning off a bedroom downstairs and converting the adjacent laundry to a bathroom.
It was one of the Applicant’s goals to remain sleeping in the same bedroom as his wife. Accordingly, the Applicant decided he would prefer to have his bedroom and bathroom on the upper story of the new home and some minor works were required to improve the accessibility of the bathroom. These were funded by the Respondent. A stair climber was also required. The cost of this support was discussed at some length during the hearing and noting the claim by OT Helen Wood that the stair climber was already in place, the Tribunal sought further submissions. These submissions clarified that Ms Wood had been mistaken and that the stair climber had been installed by the Applicant and funded by his former work colleagues as a retirement gift.
The Applicant also decided to extensively renovate the main bathroom for aesthetic reasons and, as the Applicant’s daughter advised, to “have an ensuite in the standard that mum wanted”.
The Respondent contended that these modifications were neither none nor minor and, accordingly, did not meet the stipulations of the Guidelines.
The Applicant contracted to purchase this property, despite the cost and time necessary to undertake the required modifications and lived with his daughter and her family while these were undertaken.
Since occupying the new home, the Applicant’s daughter reported a significant reduction in his care needs, greater independence, including being able to use a mobility scooter to visit neighbours because of the flat ground and his improved mood. This evidence was not disputed by the Respondent.
To assist the Tribunal in deciding which option represented value for money, as required by s 34 (1) (c), the parties provided tables with a cost comparison between the two options: the costs of relocation to the new home, and the costs of modifying the old home and remaining there. The Respondent considered that many of the costs not claimed by the Applicant for relocation should have been included and accordingly set these out as part of a table (reproduced below):
RESPONDENT’S AMENDED SCHEDULE OF COSTS
To modify old property:
56A Norman Avenue, ThornleighTo purchase new property:
7 Webbs Terrace, WestleighItem Cost
Item Cost External modifications $22,000
(HB, 429)Real estate commission $25,245 (HB, 238) Platform lift supply $23,000 (HB, 306)
Marketing costs $420 (HB, 238) Internal modifications $63,000
(HB, 429)Pool compliance certificate $275 (HB, 237) Project manager $12,800 (no evidence)
Stamp duty $85,237.40 (HB, 562) DA application (including consulting council and statutory fees) $20,000 (no evidence) Conveyancing $2,060.72 (HB, 540) Engineer, architect, site surveyor fees $15,000 (Anita Green - oral evidence) Removal costs $1,390.00 (HB, 536)
$321.40 (HB, 552)Tyrex ramps for new property $982.19 (HB, 551) Installation of ramps and grab rail $291.50 (HB, 557) Grab rail for new property – price unknown, supplied by Applicant
UNKNOWN COST Purchase of bathroom modification supplies
$1,235.00 (HB, 558) Purchase of toilet
$559.00 (HB, 559) Ensuite renovated and enlarged
Applicant alleges that they were informed bathroom modifications totalling ~$3,200 to make the current bathroom suitable and they renovated the bathroom primarily for non-disability related needs (see HB, 579)
$34,486.00 (HB, 560) Purchase of a stair climber and installation of the stair climber at the Applicant’s home
UNKNOWN COST – purchased by Applicant’s friends (HB, 578)
Estimated up to $13,000 (Anita Green – oral evidence)
Future modifications to property
No specific cost, estimated up to $18,000 (HB, 602-605) Difference in house price $295,000 (HB, 420 and 431) Totals to modify previous property:
• $155,800 (maximum cost)
• $123,000 (including engineer, architect and site surveyor fees – excluding DA cost, project manager cost is excluded)
• $108,000 (minimum cost excluding engineer, architect, surveyor, DA, project manager)
Totals to move property:
• $478,503.21 (maximum cost – inclusive of difference in house price + full bathroom renovations + stair climber and known potential future modification costs)
• $447,217.21 (inclusive of difference in house price + stair climber and known potential future modifications costs - excluding full cost of bathroom renovation)
• $183,503.21 (inclusive of full bathroom modifications + stair climber and known potential future modification costs - excluding difference in house prices)
• $152,217.21 (excluding full cost of bathroom renovation and difference in house prices)
All totals DO NOT include:
1. Cost of the grab rails
2. Future modifications to stair climber track
3. Costs of hoists or additional AT for mobilisation upstairs (for example, extra wheelchairs)
4. Costs of getting the OT to assess potential properties etc.
The Applicant amended the Respondent’s table (featured below) by removing the costs of installing the stair climber, the bathroom renovation costs and the difference in house price and considers the costs of relocation which should be met by the Respondent to be $114,47.12.
RESPONDENT’S AMENDED SCHEDULE OF COSTS (further amended by Applicant)
93. To modify old property: 56A Norman Avenue, Thornleigh
94. To purchase new property and modify upstairs (OPTION 1) 7 Webbs Terrace, Westleigh
To purchase new property and modify downstairs (OPTION 2)
7 Webbs Terrace, Westleigh
Item
Cost
Item
Cost
Item
Cost
External modifications
$22,000 (HB, 429)
Real estate commission
$25,245 (HB, 238)
Real estate commission
$25,245 (HB, 238)
Platform lift supply
$23,000 (HB, 30)
Marketing costs
$420 (HB, 238)
Marketing costs
$420 (HB, 238)
Internal modifications
$63,000 (HB, 429)
Pool compliance certificate
$275 (HB,237)
Pool compliance certificate
Project manager
$12,800 (Anita Green – oral evidence)
Stamp duty
$85,237.40 (HB, 562)
Stamp duty
$85,237.40 (HB, 562)
DA application (including consulting council and statutory fees)
$20,000 (Anita Green – oral evidence)
Conveyancing
$2,060.72 (HB, 540)
Conveyancing
$2,060.72 (HB, 540)
Engineer, architect, site surveyor fees
$15,000 (Anita Green - oral evidence)
Removal costs
$1,390.00 (HB, 536) $321.40 (HB, 552)
Removal costs
$1,390.00 (HB, 536)
$321.40 (HB, 552)
Tyrex ramps for new property
$982.19 (HB, 551)
Tyrex ramps for new property
$982.19 (HB, 551)
Installation of ramps and grab rail
$291.50 (HB, 557)
Installation of ramps and grab rail
$291.50 (HB, 557)
Grab rails for new property – price unknown, supplied by Applicant
UNKNOWN COST (included in above – oral evidence of Mel Hogan)
Grab rails for new property – price unknown, supplied by Applicant
UNKNOWN COST (included in above – oral evidence of Mel Hogan)Purchase of bathroom modification supplies
$1,235.00 (HB, 558)
Purchase of toilet
$559.00 (HB, 559)
Ensuite renovated and enlarged
$34,486.00 (HB, 560)
Include $2,000 (Statement of Melannie Hogan 30 May 2023 at [71] HB, 990)
95. Purchase of a stair climber and installation of the stair climber at the Applicant’s home
96. UNKNOWN COST– purchased by Applicant’s friends (HB, 578)
97. Estimated up to $13,000 (Anita Green – oral evidence)
Future modifications to propertyModify the downstairs of the property
No specific cost, estimated up to $18,000 (HB, 602-605)
Difference in house price
98. $295,000 (HB, 420 and 431)
Difference in house price
$295,000 (HB, 420 and 431)
Totals to modify previous property:
• $155,800 (maximum cost)
• $123,000 (including engineer, architect and site surveyor fees – excluding DA cost, project manager cost is excluded)
• $108,000 (minimum cost excluding engineer, architect, surveyor, DA, project manager)
Totals to move property:
• $478,503.21 (maximum cost – inclusive of difference in house price + full bathroom renovations + stair climber and known potential future modification costs)
• $447,217.21 (inclusive of difference in house price + stair climber and known potential future modifications costs - excluding full cost of bathroom renovation)
• $183,503.21 (inclusive of full bathroom modifications + stair climber and known potential future modification costs - excluding difference in house prices)
• $152,217.21 (excluding full cost of bathroom renovation and difference in house prices)
99. OPTION 1 – modify upstairs – total maximum cost: $133,017.21
100. OPTION 1 – modify upstairs - exclude gifted stair climber: $120,017.21
101. OPTION 2 – modify downstairs - total maximum cost: $134,223.21
All totals DO NOT include:
102.1. Cost of the grab rails103. 2. Future modifications to stair climber track
104. 3.Costs of hoists or additional AT for mobilisation upstairs (for example, extra wheelchairs)
4. Costs of getting the OT to assess potential properties etc.
For the reasons which follow, and on the evidence provided, the Tribunal finds the appropriate cost comparison is that set out in the below table, at paragraph 104 of this decision. The Tribunal has considered those costs of relocation which are in dispute in the following paragraphs.
The purchase price of the new home cost was significantly more ($295,000) than the realised sale price of the old home, but that difference was not claimed by the Applicant. The Respondent considered it was a relevant relocation cost because it was incurred as part of relocating. The Applicant contended this additional cost was “irrelevant”.
The bathroom renovation cost was also not claimed because the Applicant considered it was not disability-related, but to meet his wife’s aesthetic requirements and was privately funded. The Respondent considered this cost should have been included because it was also incurred as part of the relocation.
The cost of installing the stair climber in the new home was not claimed by the Applicant but included in the costs of relocation by the Respondent. The funds for the stair climber were gifted by the Applicant’s friends, however, this occurred after the decision to buy the new home was made, although before settlement.
The Applicant has cited WRMF in a post-hearing submission requested by the Tribunal and which the Tribunal has found helpful in determining whether costs not claimed by the Applicant should be included.
The Full Federal Court has held that the contextual use of the phrase ‘reasonable and necessary support’, which is not defined in the NDIS Act, “links it to public funding to be provided to a participant”, and that the phrase “connotes supports which meet a threshold which justifies – by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant”: National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415 at [151].
The Applicant makes the further point that the cost of that support is the cost in public fundings, consistent with the objects of the Act which require regard for the need to ensure the financial sustainability of the NDIS.
The Respondent’s contention is that these costs, and other costs associated with modification of the new home, “demonstrate an inconsistency with the Agency’s policy guidelines which state that the “new house will be appropriate for you with minimal modifications or none at all”. Further, that the extent of these costs is relevant in determining whether relocation was related to the Applicant’s disability, constituted day-to-day living costs and/or represented value for money: r 5.1 (b) and (d) of the Rules; s 34 (1) (c) of the Act.
During closing submissions, the Respondent also proposed that these costs, and the cost of a stair climber gifted by the Applicant’s friends, ought to be included because:
“… we say that you can’t pick and choose what cost you use to perform the exercise of comparing relocation costs with modification costs.”
After considering the facts and the arguments provided by the parties, The Tribunal finds that aesthetic improvements, funded with a family loan; the balance of the purchase price for the new home, funded by the Applicant’s savings; and the cost of the stair climber, funded by a gift, need not, for the reasons given in WRMF, be added to the tab of relocation expenses. The stamp duty, agent fees, removalist costs, minor modifications, pool compliance and marketing costs were not disputed and are accepted by the Tribunal as relocation costs.
Despite the exclusion of certain disputed modification costs from the question of value for money, the Tribunal considers these modifications are relevant to the application of the Support Rules, specifically R 5.1 (b) and (d) and R 5.2 (a). These rules are general criteria applying to supports and particularly, supports that will not be funded, in relation to everyday costs such as would be incurred by other Australians in relocating. These are explored later in this decision.
Future costs
The Wood Report, provided by the independent OT Ms Helen Wood, confirmed the judgment of the first OT, Ms Green, that the upstairs area would meet the Applicant’s present and future needs if a stair climber were installed but that, if it were necessary to relocate the Applicant’s bedroom to downstairs, this could be done. The Wood Report estimated a maximum cost of approximately $18,000 (informal quote provided) and advised that it would be funded by the Applicant. The Tribunal accepts that this remains a potential future cost and claim against the Respondent.
The Applicant’s estimates, based on figures provided to the Tribunal, were that the incurred costs of relocation amounted to $120,017.21, excluding the stair climber but including the cost of modifying the main bathroom to aesthetic standards, but that if the option of modifying the downstairs had been adopted (with fewer modifications required to the upstairs) then the cost of relocation would have been $134,223.21.
The Respondent provided several estimates of costs, depending on exclusions, but if the balance of purchase price, stair climber and full bathroom renovation were excluded, as the Tribunal has found, then based on figures provided to the Tribunal, the Respondent estimated the incurred costs of relocation to be $139,217.21, which included the minor modifications and known potential future modifications of $18,000.
A significant discount should be applied to future costs which may or may not be required at some time in some circumstances, such as the future costs of modifying the new home if the Applicant’s deteriorating condition require it. The Tribunal accepts the evidence provided by the Applicant’s neurologist and the OT, Ms Helen Wood, that the Applicant’s brain stimulator and the addition of a five-point harness and extended track might well enable the Applicant to remain sleeping upstairs, indefinitely. This was not disputed by the Respondent. Further, while no evidence was provided about the need for future modifications to the old house, the Tribunal recognises they would not be zero. Considering all the evidence provided, the Tribunal finds that future modifications might not be necessary and there is insufficient evidence to require their inclusion. Consequently, the Tribunal does not include the informal estimate of $18,000 in relocation costs or in remaining at the old home.
Considering the evidence provided, the Tribunal finds that the incurred costs of relocation amounted to $116,223.21 (excluding estimated future costs). The relocation cost includes the following:
Service
Cost
Real estate commission
$25,245
Stamp Duty
$85,237.40
Removal costs
$1,390 + 321.40
Pool Compliance
$275
Marketing
$420
Minor modifications
$982.19 + 291.50
Old Home Modification Costs
In principle, these were challenged by the Respondent, who opined that there was insufficient evidence provided through formal cost estimates of the cost of modifying the original property at the time the family decided to relocate (21 January 2021). I will return to the timing question later in this decision. For completion, as the Guidelines only require that the decision must be “more likely” to be value for money, the Tribunal does not consider the preliminary nature of the cost estimates to be problematic. Accordingly, construction cost estimates were provided in the first Green Report which were accepted by the parties, and accordingly the Tribunal.
The Applicant and Respondent differed on the inclusion of professional fees and local government related fees in the estimated cost of modification to the old home provided by Ms Green in oral evidence. The Respondent challenged the estimates of project management, council fees and charges provided by the OT, Anita Green as “guesses”. Ms Green told the Tribunal the estimates were based on her experience of projects of this kind.
There was considerable time devoted to cross examination on these differences, especially Ms Green’s addition of professional costs of $15,000 associated with the modifications, which were provided to the Tribunal on the morning of the hearing. The estimated Development Application fees of $20,000 which Ms Green had also added prior to the hearing, were also tested in cross examination. If these are all excluded, as tabled in the Respondents Amended Schedule of Costs featured above at paragraph 90(further amended by the Applicant) the total cost of modification is estimated to be $108,000. If they are all included, the total cost rises to $155,800. Without further evidence, such as a second independent assessment, I accept there will be some professional and local government development fees associated with this work and despite the Respondent’s argument in final submissions that:
We say that if the applicant really wants to assess properly what these costs are, it should’ve done better than simply just to give a broad estimate without reference to actual documents”... “nor would it have been difficult to obtain what site surveyors were, engineering fees were, architect’s fees, project management costs.
The Tribunal accepts the Applicant’s observation it was also open to the Respondent to obtain such information, and they had over three months in which to do so. Further, Ms Green said during cross examination that she based the cost estimates on her experience. As the Applicant contended in final submissions, the independent OT, Ms Helen Wood, appears to have accepted Ms Green’s estimates:
So, the items that were criticised in cross-examination, for example - the DA application, the project manager costs - they weren’t even at all commented on by the Agency’s OT report [ the Wood Report]”.
112.However, the Tribunal notes the first Green report had already included professional and council/DA fees in the estimated costs of installing a platform lift. Ms Green appears to have double-counted these costs, defending her new additions at the hearing, apparently oblivious to having already itemised them in her Report thus:
This style of lift would cost approximately $23,000 plus costs associated with DA approval from council which are approximately $15-20,000 (including architect, engineer, stormwater consultant, bushfire consultant and council fees).
113.Accordingly, the Tribunal deducts both the $15,000 Ms Green told the hearing would be the additional cost of professional fees (engineering, architect) and the DA fees, which she had estimated at $20,000, from the estimate that total cost of the modifications of $155,800. The Tribunal then includes the combined fee of $15- 20,000, being the range of the associated costs identified in the Green Report. Without evidence to the contrary, the Tribunal accepts that a project management fee of $12,800 should be included. The Tribunal considers the total estimated costs of modification of the old home to be in the order of $135,800- $140,800. The total of relocation costs is $116,223.21.
The Tribunal considers Ms Green to have been an unsatisfactory witness at the hearing, but that her written reports were sufficiently rigorous for the Tribunal’s purpose.
When considering value for money, as the Respondent contended, it is not enough to compare the cost of relocation with the cost of modification; the benefits also need consideration.
The Applicant’s Representative detailed the improvements she has noted in the Applicant’s quality of life since his relocation. She identified his greater social contact; his ability to travel around his immediate environment on a mobility scooter; his ability to access all parts of his home; her ability, as his primary support, to reach him in only a few minutes from her own home and, she stressed, his ability to go to the toilet independently, without the complications of negotiating the narrow passageway in the old house. I note that the proposed renovations to the old house would also have enabled the Applicant to toilet independently, but otherwise, the benefits of relocation are acknowledged.
No statements of lived experience in the new house, or the old, were provided by the Applicant or his wife. The Tribunal is therefore entirely reliant on the Applicant’s daughter’s evidence of benefits, noting also that Ms Green considered the relocation preferrable in her reports. However, evidence of benefit was not contested by the Respondent and is therefore accepted by the Tribunal. As the Respondent observed in final submissions:
I think one has to accept that there is evidence that was given yesterday by Ms Green about the move into the new house, in terms of related to his disability where his evidence, that that would be a better place to live.
However, determining value for money under s 34 (1) (c) also relies on the application of Rule 3.1, particularly the considerations of (a), (b) and (c), as detailed earlier in the decision
The parties agreed and the Tribunal therefore accepts that the provision of the new home would provide benefits to the Applicant, thus satisfying the considerations of 3.1 (b), benefits. As the Applicant described the current circumstances:
The support will be of long term benefit to the applicant, because he can continue to have the benefits of an accessible home. Ms Green, Ms Wood, and the applicant’s neurologist are all in agreement that the new home will meet the applicant’s current and future needs.
However, with respect to other considerations in Rule 3.1, the Respondent contends that the requirements of 3.1 (c) have not been met. This requires that the Tribunal assess 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”. The Respondent’s SOFIC opined that there was no evidence that relocation to his new home would reduce the cost of future supports in the long term.
“There is no evidentiary basis, in any event, for the assertion that future modifications
to the new more expensive home at Westleigh would be less than any modifications that may be carried out to the old home.”
Noting the progressive nature of the disease, the Respondent concluded in his final submissions:
“based upon her [the Green Report] assessment, the applicant will require a large amount of future support because of the particular circumstances of the disease, and the progressive nature of that disease. That’s probably even more evidence of what may happen in the future in relation to the costs and modification of the home, and that’s why it might be relevant, would be relevant to assess, to make the value assessment based upon the future cost as well as the relocation cost, and the modification cost that had already been incurred.”
The Applicant’s closing submissions relied upon the advice of the Applicant’s daughter that the need for at least informal support would be reduced, and gardening costs reduced, by relocation to the new home.
The Applicant claimed, without independent evidence, that relocation had reduced gardening costs payable by the Respondent and the time spent by his daughter attending to his needs. The Applicant also observed that the daughter’s support, including her night-time visits, was “unsustainable” and the Tribunal accepts that this is the case.
The Applicant relied upon the advice of expert witnesses (the two OTs and the Applicant’s medical specialist) that the current modifications to the new home would enable the avoidance of significant future costs. As Dr Liang, advised in her report:
Foreseeably his Parkinson’s Disease may affect him to the degree that he may not be able to walk safely and independently, but it’s unlikely with his deep brain stimulator in situ, to a point such that he cannot sit safely in a chair. He may eventually have problems sitting straight for a protracted period on his own but should likely be able to sit in a chair with the appropriate supervision and a five point harness. He should be able to maintain a seated balance for short periods that is required for him to stay on the chair lift from the perspective of his Parkinson’s Disease into the foreseeable future.
In other words, Dr Liang considered any future costs would be minor. Her advice was not disputed by the Respondent and is therefore accepted by the Tribunal.
The evidence before the Tribunal suggests that, unlike future costs which may result from stable conditions, the degenerative nature of Parkinson’s Disease would make consideration of future costs in either the new or the old home problematic for a decision-maker. Since Rule 3.1 (c) requires positive proof of the avoidance of future costs, or potentially lower costs in a new home than the old, no support could be provided for an Applicant with a degenerative condition such as Parkinson’s Disease, because it could not guarantee the avoidance or minimisation of future costs as the condition worsened. However, the Tribunal accepts Dr Liang’s advice that for the reasons already cited, his mobility needs may not require relocation to downstairs. The Tribunal finds, on the evidence provided, that future costs may only be minor and are highly uncertain, and therefore the requirements of R3.1 (c) are met.
The Applicant also contended in final submissions that the considerations of Rule 3.1 (a) have been satisfied. Ms Green, Ms Wood, and the Applicant’s neurologist consider that the new home would continue to meet the Applicant’s future needs and in particular that Rule 3.1 (a), whether there are comparable supports which would achieve the same outcome at a substantially lower cost, had been met:
The modifications [ to the old house] would not achieve the same outcome and would not have been a substantially lower cost…Ms Hogan’s evidence was that the move has substantially improved her father’s physical health and mental health. This is the best she’s seen him in five to six years.
The Tribunal accepts this evidence and finds that Rule 3.1 (a) has been met.
Retrospectivity
The Tribunal accepts that in normal circumstances the Agency’s Guidelines for determining whether they should reimburse a Participant for relocation costs should be followed prospectively, so that the decision is soundly based on estimated costs and relative benefits. As the Respondent described it:
They sold the property very urgently in January/February 2021, and then have sought to kind of almost historically justify the decision by reference to analysis, analysis of what the relocation costs were compared to modification costs, which at the moment, modification costs of the old home are only in the form of an estimate.
The Applicant’s submissions did not substantively address the retrospective nature of the value for money calculations, nor the absence of any professional estimates of modification costs, let alone relocation costs, available by 26 February 2021, when the Applicant entered into a contract to sell the old home. The Applicant’s case is based on the undisputed benefits that appear to have resulted from the relocation and, as it turned out, for somewhat less than the cost of modifying the old home.
I accept the Applicant’s evidence that several attempts were made to engage with the Respondent about the reimbursement of the Applicant’s relocation, but I also accept that, on the evidence of the Applicant’s representative, the Applicant had decided upon relocation very early in the process, and that from February his course was “set in stone”. The Applicant, and most certainly the Applicant’s daughter, had no intention of not relocating and did not wait for the final estimates of modifying his home before putting his property up for sale. This was confirmed by Ms Green’s evidence in which she advised the Applicant’s daughter that if he were to seek reimbursement costs for relocation, he would first be required to provide evidence to the Respondent. Her advice was ignored. As she told the hearing, her notes recorded that:
I explained that there was no guarantee that the NDIS will have reviewed and approved any relocation in a timely manner to be able to have a decision or an outcome.
The Respondent emphasised that since there were several financial unknowns at the time of the decision to sell the old home, it was impossible for the Applicant to have determined that relocation represented better value for money at the time the decision to sell his existing property was made.
Conversely, if the Guidelines had been followed by the time of sale, the Tribunal accepts the Respondent’s proposition that the determination of value for money would have been prospective to the choice finally made. Retrofitting benefit-cost analysis is not the way the Scheme was intended to work and is not implied in the Act. It is inherently risky for applicants who spend first to ask for recompense later.
However, the Tribunal considers that in practical decision-making, if a satisfactory case for better value for money can be made based on known and accepted costs and benefits, even retrospectively, that should not invalidate such an analysis and its benefit to the decision maker, whether that be the Respondent or the Tribunal, standing in the shoes of the decision maker.
The Respondent contended that relocating in the absence of certainty about its value for money demonstrated that the Applicant did so for reasons other than his disability-related needs. Had these needs been his reason, it follows he would have carefully considered which option better and more cost-effectively supported him before deciding which one to choose.
The Tribunal accepts the Applicant’s contention, which was not fundamentally disputed by the Respondent, that safety concerns in a period when the Applicant’s functionality rapidly declined, played a large part in the Applicant’s calculation that he needed to leave and find somewhere else to live. The evidence of the daughter, though she might have acted impetuously in urging her parents to leave when such limited evidence of value for money was available and when she was counselled by Ms Green to first seek it, is that she did so out of a genuine conviction that it was unsafe for the Applicant to remain in the old home. She referenced fear of another fall, which would be “catastrophic”.
The evidence that the family proceeded to sell without knowing the costs of modification, funded relocation without knowing if they would be refunded for it, removed the Applicant from his old home while he was still in legal possession of it and relocated him to the daughter’s home, further evidences the fears they held for his safety and the value they placed on it.
In the case of this Applicant, I consider his and his family’s concern for his immediate safety in his deteriorating circumstances should carry significant weight. His safety, their evidence suggested, was of great value to them and any calculation of value for money would take this into account. No evidence was provided to the Tribunal that the daughter and the OT’s assessments of the Applicant’s safety at the old home were wrong.
On the evidence provided, the Tribunal finds that the retrospective nature of the value for money assessment does not invalidate its conclusions, particularly when the intuited value of the Applicant’s safety is afforded due weight. In summary, the value for money analysis was based on benefits and estimated costs provided in the reports of OTs Green and Wood, relocation costs were established to be less than modification costs, but relocation better enabled the Applicant to remain safe and fulfill his goals of enhancing his independence and remain sleeping in his bedroom with his wife. As it turned out, it also provided him with greater social engagement with neighbours accessible to him at the new home.
The Tribunal finds, on the evidence provided, that the second condition of the Guideline, that moving house is more likely to be value for money than completing modifications to your current home, has therefore been met.
The Respondent proposed that the costs of modifying the new home were not minimal or zero and therefore the third condition of the Guidelines Moving House was not met. I removed the stair climber and bathroom upgrade cost for reasons previously given and consider that, overall, the modifications made at the time of purchase were in the order of only a few thousand dollars and, accordingly, minor.
The Tribunal finds, based on the evidence submitted, that the requirements of the relevant Guidelines (moving house) have been satisfactorily met and accordingly Rule 3.1 and s 34 (1) (c) of the Act are satisfied.
The Respondent has also contended that the requirements s 34 (1) (d) of the Act are not met. Satisfying the requirements of s 34 (1) (d) of the Act, effective and beneficial, traverses similar considerations to those relevant to determining value for money. The Applicant identified several benefits such as greater safety, social engagement, independent mobility and general independence arising from relocation, which also better supported the Applicant’s stated goals and aspirations. These benefits were generally acknowledged by the Respondent.
The Tribunal finds, having considered all the evidence, that relocation has been effective and beneficial for the Applicant, and therefore that the requirements of s 34 (1) (d) are met.
On balance, based on the evidence and estimates available to the Tribunal at the time of the hearing, I find that there is better value for money in relocation to the new house. Relocation costs are less than the estimated modification costs, based on the quotes provided by the Applicant and once relocation costs met by the Applicant and the purchase price difference are excluded. The benefits of relocation, on the evidence, are also greater than the benefits of modification, notwithstanding the Applicant’s initial determination to be carried out of the old home “in a box”.
However, the Respondent also contended that the requirements of Rules 5.1 and 5.2 have not been met. These rules apply generally to supports that will not be provided by the Respondent and are not specific to any particular subsection of s 34, such as value for money, s 34 (1) (c). They are exclusion rules. In this case, it is R 5.1 (d), excluding a support which relates to day to day living costs that are not attributable to a participant’s disability support needs which the Respondent contended had not been met. Exceptions to this are contemplated in R 5.2, when these are additional living costs that are incurred by a participant solely and directly as a result of their disability support needs. The Guidelines, Participant Supports, assist in determining whether the requested support is a day to day living cost, which will not be funded, or, despite being a day to day living cost, may still be funded because they are incurred solely and directly as a result of disability support needs. The Respondent contended that these were not met, noting that the Guidelines specifically identify relocation costs as being day to day living costs. The Tribunal recognises the legislation has set the bar very high for day-to day living costs, such as relocation expenses, with the inclusion of the provisos of solely and directly.
For completion, the relevant Guidelines regarding home modifications (‘Moving House’) (the Guidelines) state:
your need to move house is related to your disability.
The Tribunal will first address the Guideline and then the application of rules 5.1 and 5.2.
Relationship between relocation and Applicant’s disability
The Respondent considered that the Applicant’s decision to move was related to factors other than his disability. As evidence, the Respondent referenced the Green Report’s observation that the Applicant:
“recorded that they’d be looking to relocate to the same suburb as their daughter, ideally the same relocation being a small gated community”
And Ms Green confirmed they “wished to be closer to their daughter”, which was also confirmed at the hearing by the Applicant in closing submissions, who qualified this by contending such a need was based on the support she provided for the Applicant’s disability.
In the cross examination of Ms Green, the Respondent also suggested that the old home had become unsuitable for the Applicant because he was ageing:
as we get older, people generally want to move from a house that’s more difficult to live in when you’re older, and less difficult to live in
The Respondent provided no evidence that in the normal course of ageing, as experienced, for example, by the Applicant’s wife, there were difficulties living in the old home, or even that future difficulties had been anticipated by the Applicant and his wife and were a reason to move. The Respondent’s point was speculative. The OT, Ms Green, vigorously disagreed that the move was age-related, observing that many people wanted to remain in their original home for as long as possible. Certainly, the evidence of the Applicant’s daughter was that her parents loved the home they had built and only started to consider moving after the OT’s initial visit and at their daughter’s instigation. Until then, the daughter said of the old home that her mother had things “the way she liked them” and her father wanted to be “carried out in a box”.
The evidence provided to the Tribunal overwhelmingly confirmed that the impairments suffered by this Applicant were directly related to those associated with advancing Parkinson’s Disease. There was no evidence provided to the Tribunal about the age-related needs of either him or those of his wife, who moved house with him. The Tribunal finds, based on the evidence, the Applicant’s decision to move was not based on age-related concerns.
The Applicant’s evidence about the family’s increasing concerns for his safety at the old home, as his condition deteriorated rapidly during the period in question, was confirmed by the daughter’s evidence that they were so concerned about his safety they moved him into her home, at some inconvenience to her family, while he was still legally in possession of his old home.
The Respondent cross examined the Applicant’s daughter about when she became aware that a house close to her would be on the market, and, the Tribunal infers, that this may have influenced the decision to sell the old home. The cross examination did not establish this point and I accept the evidence of the Applicant’s daughter that she did not know the new home, so conveniently close to her, would shortly become available. She did, however, admit in cross examination that she knew the property turnover in her location was high.
we knew that in terms of the real estate market around here, properties do come up fairly frequently. …
over the course … of the impending month, we looked at about 30 different – 30 different properties, particularly taking into account some of the things that Anita [the OT] felt would be able to meet his needs, on the basis that she’d sort of said, as at January 2020, ‘Even if it was modified, that property would not suit his needs and help him meet his goals.’
The Respondent also contended that the Applicant’s desire to be near his daughter was, at the time, the reason for the move.
A decision at the time, in my submission, to sell the property, was based upon, clearly… upon the need for the applicant to be with his daughter, or nearer to his daughter… It wasn’t related solely to his disability.
However, the Tribunal finds, considering the evidence overall, that the Applicant’s decision to sell his home, apparently without knowing where he was to live, was solely the result of his concerns about the escalating safety risks, related directly to his disabilities, of remaining at the old home.
The Tribunal also notes that the decision to sell the old home (made in January 2021) could not have been based on being closer to his family, because at the time the old home was put up for sale, the Applicant could not have been sure of this outcome. This is not withstanding the frequency of property turnover admitted to by the Applicant’s daughter.
Overall, the Tribunal finds, on the evidence available, that the Applicant decided to sell his old home and relocate somewhere else solely and directly because of his disability-related needs.
Accordingly, the Guideline, requiring that the relocation be related to the Applicant’s disability, has been met and with it, the requirements of Rule 5.1 (b) is partially met.
Relocation, however, also involves the purchase of a new home. While the purchase of this new home might satisfy the Guidelines because it would, with modification, support the Applicant’s disability, the requirements of Rules 5.1 (d) and 5.2 (a), relating to day-to-day living costs, also need to be satisfied. Rule 5.2 (a) stipulates an additional living cost such as relocation expenses may be funded if they are “solely and directly” incurred as a result of a participant’s disability support needs. The stipulations of “solely and directly” clearly, on the natural meaning of the words, exclude all other needs, such as the need to be near family or to have additional rooms and a more modern house with a modern bathroom.
The Respondent contended that the purchase of the new and more expensive home required the Applicant to provide an additional $295,000 after realising the sale of the old home. This new home was a bigger, more modern residence with five bedrooms instead of three, but one that was not, at the outset, suited to the Applicant’s disability needs. No case was made by the Applicant that the larger size, greater number of bedrooms or modernity were related to his disability support needs. The Respondent contended that its close proximity to the daughter’s home was the Applicant’s reason for being prepared to pay more than the value of the old home. The Applicant’s daughter made the case that the house was better suited to him (with modifications), and it was the heating of the property market during the Covid period that accounted for the elevated purchase price. The daughter also agreed they had inspected several other properties, some cheaper, in the vicinity but had rejected them as unsuitable. No evidence was provided for this assertion that Covid alone had forced up this particular house price and the Tribunal finds, based on the evidence provided, that the higher price of the new home is unlikely to be entirely the result of the Covid property market effect but because it was also substantially bigger and in better condition, unrelated to his disability support needs.
Apart from the Green Report’s observation that the Applicant and his wife wanted to be nearer their daughter:
John and his wife recorded that they’d be looking to relocate to the same suburb as their daughter, ideally the same relocation being a small 30 gated community.
The Respondent also relied upon the parents’ ageing as another reason for the Applicant’s preference to live near to his daughter, based on the ordinary wish of elderly people to be closer to family. I have already found that there was insufficient evidence that the ageing of the Applicant was likely to be such a reason.
The Applicant submitted that he wished to be closer to his daughter entirely because of the care she provided. In closing submissions, the Applicant relied on the Green Report which emphasised the importance of his daughter’s care:
He required more supports, and to be close to his daughter and her husband to provide these supports.
For different reasons, the parties agreed that the Applicant’s final choice of home was based on his wish to be near his daughter. Apparently, the Applicant and his wife were prepared to draw on their savings to do so, underscoring the importance of being one minute’s walk from their daughter.
Accordingly, the Tribunal accepts the eventual choice of new home was based on its (very close) proximity to his daughter. The remaining question is why the Applicant wished to do so.
In final submissions, the Respondent concluded that (based on the evidence), the Applicant’s decision to relocate was based on his wish to be closer to his daughter as a family (as referenced in the Green Report) and not solely and directly on his disability support needs.
The Respondent relied on the Green Report, which stated:
‘they wish to move there to be in closer proximity to their daughter for her support”
And in closing submissions, submitted that these words reflected the Applicant’s personal preference to be near his daughter, unrelated to his disability:
the primary reason he wanted to move was to be closer to her daughter. There was no need for him to be – there was no need to live with her solely for her – as a carer. It was only 10 minutes away… She was 10 minutes away by car. So I think what we’d say about that is that given what was available in the plan, you would interpret that sentence that he wanted to be closer in proximity to her daughter for her support as a family.
The Applicant told the hearing in final submissions that the daughter (and her family) provided extensive carer support entirely related to his disabilities:
The motivation to be near the daughter is because they are the primary caregivers.
The Applicant summarised the care provided by his daughter when the Applicant lived at the old house in the following way:
Her evidence was when, even living 10 minutes away, if you’re going to go on a 1 am visit to help him, walking only one or two minutes, makes a difference in her life. She was getting, like, three or four hours of sleep. Now it’s much better. So when you’re talking about motivation, it is not a mixture. It’s not going over for a tea or coffee. It’s not that, it’s more than that. She goes multiple times to take him to the toilet.
The Applicant also referenced the statement of the Applicant’s daughter about his personal care:
Mum and I assist with dad in these tasks. We assist him with the dressing, the showering, the meal preparation.
The Applicant described the enormous physical effort the daughter invested in caring for her father in the old home. This was confirmed by the daughter and by Ms Green. While it was clear that she could not continue to drive around to her father’s old home at all hours of the night to take him to the toilet, even the modifications proposed to the old home were intended to significantly reduce her need to do so, as would modifications to any other property, including the new home. Scant comparative evidence was provided by the Applicant about the unsuitability of other houses inspected by the Applicant’s daughter and OT, or the relative costs of modifying them, including cheaper properties than the property eventually selected.
The parties disagreed on the nature and import of the daughter’s care. As the Respondent confirmed at the hearing, the Applicant’s package included $87,415 for carers to help with daily activities, which may include support for carers’ respite, confirming that the daughter’s care was not the only source of support available to the Applicant. Again, had a prospective process been followed, as outlined in the Guidelines, and referenced by the Respondent, the significance of the daughter’s care in the Applicant’s new optional circumstances could have been properly assessed before a purchase was made
The Tribunal considers that if the purpose of moving was to increase the Applicant’s safety and give him greater independence, as attested by his daughter, then his reliance upon her support for his disability-related care must, it follows, be reduced. The fact that she has power of attorney and makes most of the financial decisions for the Applicant does not require them to live within one minute’s walking distance from each other. Further, there is funding for carers in the Applicant’s package so that the daughter is only needed for informal support. The written evidence of the OT, Ms Green, that the Applicant and his wife wanted to be nearer to their daughter for her support is accepted to mean informal supports of the kind families generally provide. The relocation itself provided a new home which was safer and better suited to the Applicant’s needs, including his need to toilet independently and socialise independently, and reduced his reliance on is daughter.
The Respondent contended that the Applicant’s decision to substantially renovate the ensuite bathroom in the new property was also not consistent with a purchase incurred solely and directly because of his disability needs, but because it represented an opportunity to “renovate” and, it is inferred, improve the Applicant and his wife’s standard of living. As his daughter advised, the renovations had been undertaken for aesthetic reasons and to please his wife, but well after the decision to purchase had been made. The Tribunal considers that a decision to relocate solely and directly for disability-related purposes does not exclude the option, later on, of also improving the style or aesthetic standard of a room even if it constitutes a further heavy expense. Accordingly, the Tribunal finds there is insufficient evidence to support the Respondent’s contention that an extensive renovation is inconsistent with relocation based solely and directly on disability support needs.
TRIBUNAL’S FINDINGS
Based on the evidence available to the Tribunal, the modifications proposed for the Applicant’s old house in light of his rapidly declining health were indisputably considered necessary. The Applicant’s living conditions needed to change.
Based on the evidence available to the Tribunal, the Applicant’s decision to relocate was based solely on his disability support needs and constituted greater value for money than modifying the old home. The requirements of s 34 (1) (c) are therefore met. The value for money analysis which has subsequently been tested by the parties to the satisfaction of the Tribunal is not invalid because it was not made at the time of the decision to sell, although considerable financial risk was carried by the Applicant in doing so. The requirements of Rule 3.1 are therefore met.
The Tribunal finds, based on the evidence provided, the relocation has been effective and beneficial for the Applicant, having brought him greater independence (and less reliance on carer support) and mobility, as well as access to his property and neighbourhood. The requirements of s 34 (1) (d) are therefore met.
Overall, however, the Tribunal finds, after considering all the evidence provided to it, that there is insufficient evidence that the Applicant’s relocation to the new house was based solely and directly on his disability support needs, notably, his daughter’s care. This is especially so now the Applicant lives in a better designed house that was modified precisely to enable him to be safer and more independent of others for his care, including of his daughter. The Tribunal accepts that the Applicant and his daughter might find it more convenient for them to be close by, given her central role in managing her parents’ affairs, and in health emergencies as had recently occurred, but these are not solely and directly related to the Applicant’s disability support needs.
Since relocation costs are generally considered to be day to day living costs and the evidence available to the Tribunal is that the Applicant’s relocation to this new home, specifically, was not based solely and directly on his disability support needs, the combined requirements of Rules 5.1 and 5.2 are not met.
Since the $18,000 proposed for modifications to the downstairs has not been expended, and may not be required, the Tribunal finds, on the evidence, that future costs need not have been included in this decision.
The application of residual discretion, as outlined in s 33 (2) does not apply in this case.
CONCLUSION
The Tribunal appreciates the pivotal role of the NDIS (Supports for Participants) 2013 Rules in determining whether a day to day living cost, such as relocation expenses, should be met by the Respondent. The Tribunal recognises that a high bar has been set for the satisfaction of this Rule. Accordingly, despite the Tribunal’s finding that the relocation constitutes value for money and the obvious benefits of the new home to the Applicant, there is insufficient evidence that its purchase was based solely and directly on his disability support needs. In these circumstances, the Tribunal concludes the relocation has not met all the requirements of the Act when determining if a support is to be funded by the Respondent.
DECISION
The Tribunal dismisses the application for review (dated 28 October 2021) in matter 2021/8101, due to lack of jurisdiction, and pursuant to section 42A (4) of the Administrative Appeals Tribunal Act 1975 (Cth). Secondly, the decision under review in matter 2023/1209, (made by the delegate on 20 February 2023) is affirmed by the Tribunal, pursuant to section 43(1)(a) of the AAT Act.
I certify that the preceding 181 (one-hundred and eighty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Goward
.............................[SGD].........................................
Associate
Dated: 28 September 2023
Date of hearing: 8 and 9 June 2023 Counsel for the Applicant: Ms Theresa Baw
Solicitor for the Applicant: Ms Lindsay Ash Counsel for the Respondent: Mr Mark Cleary
Solicitor for the Respondent: Mr James Pattinson
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