WJCG and National Disability Insurance Agency

[2023] AATA 3310

WJCG and National Disability Insurance Agency [2023] AATA 3310 (17 October 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):2021/8539      

Re:WJCG  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member O'Donovan

Date:17 October 2023

Place:Canberra

The parties may provide to the Tribunal for approval a statement of participant supports which includes funding for additional supports consistent with the reasons for decision. In the event that a new statement of participant supports has not been provided within 14 days of the date of this decision, the decision under review is affirmed.

……………………[sgd]…………………

Senior Member O’Donovan

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – Osteogenesis imperfecta – Hydrotherapy pool – Hydrotherapy – Reasonable and Necessary Support – purchase and installation of domestic hydrotherapy pool not value for money - NDIA is not the appropriate source of funding for provision of rehabilitation

LEGISLATION

National Disability Insurance Scheme Act (2013) s33, 34

National Disability Insurance Scheme (Support for Participants) Rules 2013 Rule 3.5, Schedule 1

CASES

Klewer v National Disability Insurance Agency [2023] FCA 630
McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121
MMBX and National Disability Insurance Agency [2022] AATA 13
National Disability Insurance Agency v WRMF (2020) 276 CFR 415
Pavlakis and National Disability Insurance Agency [2023] AATA 2485

REASONS FOR DECISION

Senior Member O'Donovan

17 October 2023

1. The applicant is 13 years of age. She suffers from rare conditions called Osteogenesis imperfecta Type IVB and Dentinogenesis imperfecta. Osteogenesis imperfecta (OI) is a congenital brittle bone disorder which puts her at an increased risk of fracture and in particular compression fractures of her vertebrae. She was admitted as a participant to the National Disability Insurance Scheme (NDIS) on 17 July 2015.

2. In 2022 her family purchased and installed a hydrotherapy pool at the family home to assist in ameliorating the effects of her condition. Two questions have arisen in relation to that purchase. The first is whether it qualifies as a reasonable and necessary support which should be included in the statement of participant supports which specifies the supports which the National Disability Insurance Agency (NDIA) will fund. The answer to that question revolves around the criteria specified in section 34 of the National Disability Insurance Scheme Act 2013 (NDIS Act). The second is whether the Tribunal has jurisdiction to include a re-imbursement amount in relation to the pool in any statement of participant supports which it approves as part of its review.

3. It is convenient to deal with the issues separately and sequentially.

   Evidence

4. The evidence before me consists of the following:

   (a)The T-Documents with pages numbered 1-182 (T-Docs);

   (b)The amended hearing bundle filed by the respondent on 4 April 2023 (Exhibit 1);

   (c)A discharge letter received by the applicant from the Canberra Hospital (Exhibit 2); and

   (d)The oral evidence of the following witnesses:

   (i)Harley Valerius (Occupational Therapist);

   (ii)Dr Nathan Hartin (Consultant Surgeon);

   (iii)The applicant’s mother; and

   (iv)Professor Frank Munns (Paediatric Endocrinologist).

   Reasonable and Necessary Support

   Background

5. As a result of her OI, the applicant is prone to suffering serious fractures. She has suffered multiple serious fractures since July 2017, a number of which have been spinal fractures. The applicant has on multiple occasions been taken to Westmead Hospital in Sydney (including by airlift) for treatment of those fractures. That treatment has involved surgery plus the fitting of a spine brace. Following these fracture events, hydrotherapy has been included as part of the applicant’s rehabilitation programs which follow her recovery from the fracture. Further, hydrotherapy is recommended for the ongoing management of her condition.

6. The applicant sought to have allowance for the purchase of a hydrotherapy pool included in her statement of participant supports (Statement).

7. The respondent has made 3 decisions refusing to include hydrotherapy in the applicant’s Statement. The decision the subject of the original review application was the decision of 20 October 2021. The matter has been in the Tribunal since 12 November 2021.

8. In January 2022, after the application was commenced in the Tribunal but before the matter came on for hearing, the applicant’s parents purchased a hydrotherapy spa which was delivered and installed in the family home in May 2022.[1] .

   [1] Transcript, page 5.

9. The applicant now seeks re-imbursement for the installation of the hydrotherapy pool. If her application is granted, the applicant intends to use her existing Capacity Building Budget included in her Statement to employ a hydrotherapist to conduct a bi-annual review of her home-based hydrotherapy program.[2]

   [2] Applicant’s Closing Submissions at [11].

10. For funding to be provided for the hydrotherapy pool it is necessary for the applicant to establish that the support sought is a ‘reasonable and necessary support’. If it is, then (subject to the question of the Tribunal’s jurisdiction discussed further below), the hydrotherapy pool can be included in the Statement approved by the Tribunal. Inclusion of a support in the Statement means it can be funded by the NDIA.

    Framework for including supports

11. The decision which the Tribunal is called upon to review is best described as a decision by the CEO’s delegate to approve a Statement which did not include all of the supports which the applicant contends should be included. The approval was given in accordance with subsection 33(2) of the National Disability Insurance Scheme Act 2013 (NDIS Act). The Statement which was approved forms part of the applicant’s NDIS Plan, which is a document which the respondent must prepare once a person becomes a participant in the NDIS. Plans need to be reviewed regularly as required by the NDIS Act.

12. The Statement approved by the CEO specifies (among other things) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme. At present the Statement approved by the CEO for the applicant does not include the purchase and installation of the hydrotherapy pool as a reasonable and necessary support. If the Tribunal were to determine the matter favourably to the applicant, it would approve a Statement which included all of the applicant’s existing supports and add into the Statement the purchase and installation of a hydrotherapy pool. The Tribunal could only specify a support for funding if it is a reasonable and necessary support.

13. There are a host of provisions which are potentially relevant to deciding whether a support is a reasonable and necessary support which should be specified for funding in a participant’s Statement.[3] For present purposes it is sufficient to note that the Tribunal must be satisfied of all the matters identified in subsection 34(1).

    [3] For a comprehensive discussion of the relevant provisions, see MMBX and National Disability Insurance Agency [2022] AATA 13.

14. Subsection 34(1) provides as follows:

    (1)  For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

    (a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;

    (b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;

    (c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

    (d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

    (e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

    (f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

    (i)     as part of a universal service obligation; or

    (ii)    in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

15. The Federal Court gave consideration to the statutory task of approving Statements in the matter of National Disability Insurance Agency v WRMF.[4] In its judgment, the Court resisted determining what the outer limits of the phrase ‘reasonable and necessary supports’ might be but made one observation about the statute which is relevant to this case. The Court made the point that the matters in section 34 of the NDIS Act are not merely mandatory considerations but are in the nature of criteria which the decision maker must be satisfied of on the material before it. It is therefore clear that the Tribunal must be satisfied of all of the specific matters identified in the paragraphs of section 34(1) before a support can be included in a Statement.[5]

    [4] (2020) 276 CFR 415.

    [5] Ibid [201].

16. In this case the requirement in paragraph (c) and paragraph (f) are of particular relevance.

17. Paragraph (f) is relevant to considering whether hydrotherapy (in any form) should be funded by the NDIA when the applicant is in her post-fracture rehabilitation phase. I am satisfied that it is not the appropriate provider of that support. Further, in relation to the ongoing management of her condition, I am not satisfied that the purchase and installation of the hydrotherapy pool represents value for money. The costs of the support are not reasonable, relative to both the benefits achieved and the cost of alternative supports.

18. My reasons for these conclusions are set out below.

    Consideration

19. The applicant suffers from OI. OI is a rare disease and the applicant’s is a moderately severe case. Her bones are weak and can break spontaneously.  Her condition has already caused multiple fractures including vertebral compression fractures. In addition, the applicant suffers from muscle weakness and joint hypermobility.

20. The applicant is seeking reimbursement for the purchase and installation of a hydrotherapy swim spa. The total cost was $44,181.62 including $35,490 for the spa itself and around $8500 in installation, electrical and fencing costs. The applicant’s family installed the hydrotherapy pool so that the applicant could undertake hydrotherapy in a safe and convenient environment. Hydrotherapy involves undertaking exercises in water which are low impact and pose minimal risk of a fracture. All of the medical specialists engaged with the applicant’s care agree that undertaking exercise in a safe environment will reduce the applicant’s risk of re-injury.

21. Hydrotherapy at the applicant’s home provides a safe and convenient form of exercise which, if performed consistently, reduces the applicant’s risk of re-injury and will assist the applicant to undertake a larger range of activities safely and is likely to promote the applicant’s social and economic participation.

22. At the hearing the Tribunal had the benefit of evidence from the applicant’s occupational therapist, treating surgeon and treating endocrinologist.

23. Based on that evidence there appear to be three phases through which the applicant passes when she suffers a fracture. In the first phase her treating professionals are focussed on ensuring that the fracture heals safely. With a spinal fracture this requires significant medical intervention and often surgical intervention. It also usually requires the applicant to use a spinal brace which immobilises the applicant for around 12 weeks. In this phase, rehabilitation and exercise of any sort are not appropriate.[6]

    [6] Transcript, page 41.

24. Once the acute phase has passed the applicant must undergo rehabilitation to overcome the deconditioning which the immobilisation in the acute phase produces. There is no doubt that in this phase hydrotherapy is a valuable tool in restoring function to the applicant in a safe environment.[7] Hydrotherapy in this phase is supervised but the hope is that the supervised phase ‘doesn’t last very long’.

    [7] Transcript, page 42.

25. The third phase, which can be described as a maintenance phase, is when the applicant’s function has been restored. At this point, the applicant’s fracture resistance is likely to benefit from 3 things in combination – medication, growth and exercise.

26. In this phase there appear to be a range of options which will improve the applicant’s function and reduce her risk of injury, including hydrotherapy. Professor Munns, the applicant’s endocrinologist, gave evidence that when the applicant is not in the acute phase, working of the applicant’s core muscles will be particularly beneficial for strengthening her bones and providing muscle support. It is however clear many forms of exercise will be beneficial, and that hydrotherapy should not be seen as the only activity which has these benefits.

27. In fact, of the suite of exercises available, Professor Munns particularly recommended lap swimming. He recommended this kind of activity because it improves ‘core strength’.[8] Building core muscles and core strength helps with pain, balance and function, and the stronger a person is, the less likely they are to break bones.[9] Regular swimming was recommended to be undertaken two or more times a week.[10] Professor Munns believed hydrotherapy was also beneficial in this phase, but it was clear that it was one of a range of suitable options rather than an essential form of exercise for which there was no substitute.

    [8] Transcript, page 40.

    [9] Exhibit 1, page 280.

    [10] Transcript, page 34.

28. Looking at the available exercise options that would fulfill the applicant’s needs, lap swimming would appear to be the cheapest option that is available. The evidence indicates that the cost of attending a swimming pool twice a week would be $780 per year.[11] Significantly cheaper than the purchase and installation of a hydrotherapy pool.

    [11] Exhibit 1, page 357.

29. Further emphasising that there are a range of exercises suitable for the applicant, Claire Grant, a physiotherapist from Early Start Australia, wrote that ‘the most appropriate form of therapy is a mix of land-based therapy to work on task specific skills and hydrotherapy to work on endurance, balance and strength safely’. Ms Grant referred to a rehab report of May 2021 which ‘encouraged daily swimming, tennis, ankle strengthening, running and general fitness’.[12]

    [12] Exhibit 1, page 405.

30. Professor Munns confirmed that land-based physiotherapy was something that would be beneficial to the applicant.

31. In light of this evidence, I am satisfied that during the maintenance phase, the best value for money option to provide a therapeutic benefit to the applicant is lap swimming at a public pool. While this would place some time burdens on the applicant’s parents, the burdens do not appear to be significantly greater than the burdens imposed by other commitments the applicant has such as piano lessons. Given the availability of this relatively cheap and potentially more effective option, I do not regard the installation of a hydrotherapy pool in the applicant’s home as offering value for money.

32. The applicant pointed out that there were risks associated with attending a public pool when the applicant has OI. I have given careful consideration to this issue and was reassured by the evidence which indicated that Professor Munns was not perturbed by the risk of attending a public pool even for classes in a group setting. The applicant’s occupational therapist, when pressed, did not identify significantly different risks between using a pool at home and using a public pool.[13]

    [13] Transcript, pages 20, 38.

33. Consequently, when a hydrotherapy pool at home is compared with an option like lap swimming at a public pool, I am satisfied that the installation of a hydrotherapy pool does not represent value for money when the applicant is in the maintenance phase of her condition.

34. The question then is whether the applicant’s needs during the rehabilitation phase post-injury justify the provision of a hydrotherapy pool or hydrotherapy funding.

35. During this phase, I am satisfied that the NDIA is not the most appropriate provider or funder of such support.  

36. I accept as the respondent submits that:

    A significant part of the reason why hydrotherapy has been recommended and used by the Applicant in the past is as part of a rehabilitation programme, to alleviate the deconditioning caused by the brace she has had to wear for the purpose of allowing her fracture to heal. As Dr Hartin explains, the rehabilitation service is ordinarily provided by public hospitals such as Westmead Hospital. That is, it is something ordinarily funded and provided publicly, by State/Territory health services; hydrotherapy for this purpose is thus something that is ordinarily, and is appropriately funded by services other than the NDIS.

    …

    This is confirmed by Rule 7.5(c)(ii). The use of hydrotherapy after a fracture and the removal of a brace, for the rehabilitative purpose described by Professor Munns and Dr Hartin, is fairly described as a “time-limited, goal-oriented service…provided after a recent medical…event, with the aim of improving the person’s functional status, including rehabilitation or post-acute care. Rule 7.5(c) makes plain that the NDIS does not fund such services. It follows that the NDIS does not fund hydrotherapy spas for use for this purpose.

37. In these circumstances I am satisfied that the purchase and installation of a hydrotherapy spa at the applicant’s home, for use in the rehabilitation phase, would involve funding a support more appropriately funded through the public health system.

38. Accordingly, the value of the hydrotherapy pool should only be considered by reference to the support it offers during the maintenance phase. As noted above, there are cheaper options which are just as effective which the applicant can pursue during the maintenance phase of her condition. A hydrotherapy pool does not represent value for money.

39. On that basis the support sought does not meet the requirements of section 34 and cannot be included as a support in any Statement I approve.

    Jurisdictional question

40. The respondent also contends that even if I was satisfied that a hydrotherapy pool did constitute a reasonable and necessary support, I do not have jurisdiction to include it in the Statement associated with the applicant’s current Plan. This, it is submitted, is the result of the fact that the expenditure was incurred in May 2022 and the current plan commenced on 21 February 2023, following the remittal by the Tribunal pursuant to section 42D of the Administrative Appeals Tribunal Act 1975 and the subsequent decision made within the NDIA on 21 February 2023. The result, it is submitted, is that the decision made on 21 February 2023 created a new Plan covering the period from the date of the new decision until the review date included in the Plan. The consequence is that the current Plan does not cover the period which includes May 2022, and I cannot include the cost of supports incurred in that period in any Statement which I approve. As a result, whether items which were purchased in a period prior to the more recent decision constituted reasonable and necessary supports is simply not an issue which I have jurisdiction to determine. This is said to be the result that flows from the recent Federal Court decision of Klewer v National Disability Insurance Agency.[14] The respondent cites in particular paragraph [202] of Klewer to support this contention.

    [14] [2023] FCA 630 see in particular paragraph [202].

1. While this is contrary to my previous understanding of the operation of the NDIS Act (see for example MMBX and NDIA [2022] AATA 13, where I approved a Statement covering the period from the original period of the Plan through to a new review date 12 months in the future), Klewer does provide a basis for re-visiting the question. While the ground on which the applicant succeeded in Klewer was a procedural fairness ground, Justice Reaper does separately discuss the effect of remittals under section 42D of the AAT Act (the discussion begins at paragraph [155] and concludes at paragraph [225]). Viewed in the broad, it is clear that the Court took the view that the NDIS Act provides for a forward-looking funding scheme,[15] with new Plans commencing each time a Statement is approved even in the context of Tribunal review.[16] If that is right, then there does not appear to be much scope (if any) for the Tribunal to approve a Statement which funds supports which have been purchased and paid for in an earlier period.

   [15] See in particular paragraph [201].

   [16] See in particular paragraph [202] and [221].

2. Doubts about the correctness of the views expressed in Klewer and its consistency with the earlier decisions, and in particular the Federal Court decision of McGarrigle v NDIA,[17] were expressed in the recent Tribunal decision Pavlakis and NDIA.[18]  In Pavlakis the Senior Member laid out an alternative approach as to the legal effect of reviewing an approval of a Statement such that the varied (or substituted decision) to approve a Statement, alters the content of the Statement but doesn’t create a new Plan. This results in a more expansive jurisdiction for the Tribunal.

   [17] (2017) 252 FCR 121.

   [18] [2023] AATA 2485.

3. In the present case it is not necessary for me to resolve this controversy and given the range and significance of the issues which are raised, I have decided not to do so. It is sufficient to note that whether I have jurisdiction or not, the purchase and installation of a hydrotherapy pool is not a reasonable and necessary support and for that reason it cannot be included in the applicant’s Statement.

4. However, attendance at a public pool twice a week for the purposes of undertaking lap swimming does constitute a reasonable and necessary support and the funding of it would be entirely prospective.

5. If the applicant wishes to have funding for this support included in her Statement, the parties should provide a Statement which includes this support to the Tribunal within 14 days of this decision for approval. Failing that I will affirm the decision under review.

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member O'Donovan

.................................[sgd]......................................

Associate

Dated: 17 October 2023

Date(s) of hearing:	6 February 2023, 6, 21 April 2023
Date final submissions received:	17 August 2023
Counsel for the Applicant:	Ms Bridie Harders
Solicitors for the Applicant:	Legal Aid ACT
Counsel for the Respondent:	Mr Nicholas Swan
Solicitors for the Respondent:	Mills Oakley Lawyers