Woodard and National Disability Insurance Agency
[2023] AATA 4156
•18 December 2023
Woodard and National Disability Insurance Agency [2023] AATA 4156 (18 December 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/8195
Re:Mr Robert Woodard
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member D Connolly
Date:18 December 2023
Place:Sydney
The Tribunal affirms the decision under review, dated 12 October 2021, as varied on 20 December 2022, pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
....................[SGD].....................
Senior Member D Connolly
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – Applicant has a hearing impairment – reasonable and necessary supports – sought funding for Visualert Custom Made Visual and Vibrating Alert System – sought funding for CCTV cameras with motion sensor lighting – sought funding for floodlights – after the hearing sought funding for Tiny Red Box – whether the Visualert system is value for money – whether funding the Visualert system would be a duplication of supports already funded as the Applicant has a Brooks Visual Notification System – whether on the evidence before the Tribunal Tiny Red Box can be considered to meet any of the reasonable and necessary support requirements– whether CCTV cameras are a day-to-day living cost – whether the request for CCTV cameras is due to the Applicant’s disability needs – whether floodlights are related to the Applicant’s disability – 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
Buckley and National Disability Insurance Agency [2021] AATA 3622
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Vecchio and National Disability Insurance Agency [2021] AATA 3510REASONS FOR DECISION
Senior Member D Connolly
18 December 2023
BACKGROUND TO REVIEW
Robert Woodard (the Applicant), aged 41, became a participant of the National Disability Insurance Scheme (the NDIS) on the basis of a hearing impairment.[1] His latest audiogram confirms that he has profound hearing loss.[2]
[1] Joint Tender Bundle (JB, Respondent’s Statement of Facts, Issues and Contentions (RSFIC), p 300.
[2] B26-B27, Clinical Audiology Report, submitted 30 October 2023.
The Applicant lives with his wife, Felicity Woodard, who is deafblind, and their three children aged 16, 13 and 11 years. None of his children has a hearing impairment. His brother-in-law, who is also deafblind, lives in a granny flat on the Applicant’s property.
The Applicant lives in his own 4 bedroom, 2 bathroom home in Medowie, NSW. He has a large back and front yard. The house was built in about 2016, after he lost his home on the same property when it was destroyed by fire in August 2015. His home currently has no modification installed for visual or tactile notification of a fire alarm or doorbell.[3]
[3] JB, FLOT Home Modification and Assistive Technology Report (FLOT Report), p 183.
The National Disability Insurance Agency (the Respondent) approved the Applicant’s plan, on 30 April 2021. The plan was to be reviewed by 28 April 2024.[4]
[4] T16, NDIS Plan (30.04.2021 – 28.04.2024) (Original Decision) p 342.
On 31 July 2021, the Applicant sought internal review of the decision, on the basis that he had not been consulted in relation to a change from a one year plan to a three year plan. He also sought various additional supports. On 12 October 2021 the internal reviewer concluded that the Plan Management Financial Administration Funding should be increased to reflect the three year plan but found that the other supports that the Applicant was requesting were not reasonable or necessary.[5] The Applicant’s funding supports totalled $51,935.53, which was made up of $40,794.80 for Core Supports, for Auslan interpreting services and assistive technology, and $11,139.73 for Capacity Building Supports.
[5] T2, Internal Review Decision, p 19.
On 2 November 2021 the Applicant applied to the Administrative Appeals Tribunal (the Tribunal), pursuant to section 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act), for review of the internal reviewer’s decision.[6]
[6] T1, AAT Application for Review of Decision, p 1.
On 20 December 2022, the Respondent varied the Applicant’s statement of participant supports, having agreed that the following requested supports were reasonable and necessary, after the Tribunal remitted the matter pursuant to section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) for reconsideration:
(i)Auslan interpreting services for 6 hours per week (312 hours per year)
(ii)gardening services for 2 hours per month (24 hours per year)
(iii)low-cost Assistive Technology in the amount of $1,000.[7]
[7] JB, RSFIC, p 302.
The Applicant informed the Tribunal that he was also seeking funding for a Visualert Custom Made Visual and Vibrating Alert System (the Visualert system) and CCTV cameras with motion sensor lighting and floodlights, and various other supports which he is now no longer pursuing.
After the hearing, in the closing submissions prepared by the Applicant’s wife, it was submitted that, while the Applicant had sought the Visualert system, it is not a perfect fit for their family, and an alternative system, Tiny Red Box, which has Braille features, is now being sought.
LEGISLATIVE FRAMEWORK
A participant’s NDIS plan must include a statement of participant supports, approved in accordance with the NDIS Act, and any rules made under the NDIS Act such as the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Supports Rules).[8]
[8] National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) ss 33(2) and (5).
In deciding whether to approve a statement of participant supports I must have regard to several factors, including the Applicant’s statement of goals and any relevant assessments conducted in relation to the Applicant.[9] I must also be satisfied the supports are reasonable and necessary.[10]
[9] NDIS Act, ss 33(5)(a) and (b).
[10] Ibid, s 33(5)(c).
Subsection 34(1) of the NDIS Act states, with respect to reasonable and necessary supports, 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.
Subsection 34(2) provides that the NDIS rules may prescribe methods or criteria to be applied, or matters to which the CEO must have regard, in deciding whether they are satisfied criteria under subsection 34(1) are met in respect of a requested support.
The Supports Rules, made pursuant to subsection 35(1) of the NDIS Act, provide further guidance with respect to the assessment of reasonable and necessary supports that will be funded. Paragraph 33(5)(d) requires that the CEO apply any rules made for the purposes of section 35. Pursuant to section 209 of the NDIS Act, the rules are a legislative instrument and are therefore binding on the Tribunal.
The Tribunal notes the observations of Mortimer J in McGarrigle v National Disability Insurance Agency [11] at [43] in part as follows:
The [Supports Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement…some policy decision-making about the nature and extent of supports to be provided or funded...
[11] McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle).
The relevant Supports Rules in this case are as follows:
3.1 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 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).
5.1A support will not be provided or funded under the NDIS if:
(a)…
(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.
5.2The 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.
As for what is meant by reasonable and necessary supports, the Full Court in National Disability Insurance Agency v WRMF[12] stated the following at [149]-[151]:
The phrase is a composite phrase. We accept the Agency's submissions that each limb of the phrase should be given work to do. That task is not difficult, or complicated with these two particular words, which are readily understood as conveying different meanings. However, the Parliament has chosen to use a composite phrase rather than to stipulate two distinct requirements, and therefore, as Gleeson CJ cautioned in XYZ v Commonwealth [2006] HCA25; (2006) 227 CLR532 at [19], '[t]here are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts'.
…Both adjectives qualify the noun “support”, but they do so as a composite phrase. It is not fruitful to split them off and consider them separately, just as it is neither fruitful nor appropriate to attempt any exhaustive or authoritative judicial definition of them.
Nevertheless, there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, 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. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.
[12] National Disability Insurance Agency v WRMF [2020] FCAFC 79 (WRMF).
ISSUES IN DISPUTE
It was confirmed at the hearing that funding for the level of plan management was no longer in dispute, and that the Respondent has agreed to fund Auslan interpreting services, gardening services and low-cost assistive technology in the amount of $1000. Those supports were included in the Applicant’s plan on 20 December 2022. Also, while the Applicant had sought funding for 10 hours of assessment recommendation therapy and/or training per year, an Apple iPad, an Apple iPhone, monthly data service, increased support coordination funding and high-grade hearing aids, he has now withdrawn his request for those supports.
The issues in dispute at the hearing were whether the Visualert system, CCTV cameras with motion sensor lighting and floodlights are reasonable and necessary supports.
Prior to the hearing the Respondent submitted that funding for the Visualert system would be a duplication of supports already funded through the NDIS, and therefore cannot be funded pursuant to rule 5.1(c) of the Supports Rules, as the Respondent has already spent $8,349.45 on daily adaptive equipment and assistive technology for hearing and safety since 2019,[13] including funding for a Brooks Visual Notification System (the Brooks system) and the Swann Security System.[14] However information was provided to the Tribunal during the hearing which confirmed that the Brooks system was in fact supplied to the Applicant by the Deaf Society of NSW, delivered on about 1 June 2017.[15] This was prior to the Applicant becoming an NDIS participant in mid-2018.[16]
[13] RSFIC, para 57.
[14] C2, Report of Phi-Van Houston (Houston Report), pp 11-12. The Swann Security System has been described by the independent Occupational Therapist, Ms Houston, as having 8 cameras, motion activated spotlights, a digital video recorder with a hard drive and options to watch live or recorded footage.
[15] B25, Brooks Picking Slip.
[16] Respondent’s Closing submissions, dated 20 October 2023, para 30.
At the hearing and in its closing submissions the Respondent also submitted that the Visualert system does not meet the criteria in paragraph 34(1)(c) of the NDIS Act, because funding the support does not represent value for money.
It was also submitted by the Respondent that funding for the CCTV cameras with motion-censor lighting and floodlights does not meet the general criteria for supports set out in rule 5.1 of the Supports Rules, because it duplicates other supports delivered under the NDIS, is not related to the Applicant’s disability, relates to day-to-day supports not attributable to disability support needs, and that paragraph 34(1)(f) of the NDIS Act is not met because it the support is not most appropriately funded or provided through the NDIS.
After the hearing, in the Applicant’s closing submissions prepared by his wife, it was submitted that, while the Applicant had sought the Visualert system as they understood it was the only one available that met nearly all their needs, it is not a perfect fit for their family. Recently, they have discovered Tiny Red Box through a support coordinator who works with multiple deaf and deafblind clients who have the system installed in their own homes. They believe this is a superior system that suits their needs as it has Braille features which the Applicant’s wife needs. The Applicant provided no particulars as to the other features, specifications, or cost of Tiny Red Box.[17]
[17] Applicant’s Closing Submissions, dated 1 November 2023.
Accordingly, the issues for me to decide are whether the Visualert System, Tiny Red Box, CCTV cameras with motion-censor lighting and/or floodlights are reasonable and necessary supports.
CONSIDERATION OF THE EVIDENCE
I have considered all the evidence provided in the joint bundle, the oral evidence provided at the hearing on 20, 21 and 28 September 2023, which was conducted with the assistance of interpreters in the Auslan and English languages, and evidence provided after the hearing.[18] I have also taken into account the parties’ closing submissions.
[18] B21, Written response to Ms Houston’s Report, submitted 20 September 2023; B22, Buckley and National Disability Insurance Agency [2021] AATA 3622 (8 October 2021), submitted 20 September 2023; B23-25, Images of the Brooks Strobe Device and Brooks Picking Slip, submitted 22 September 2023; B26-27, Clinical Audiology Report, submitted 30 October 2023; C3, ASIC Historical Extract for Assistive Tech Suppliers Pty Ltd (formerly Seventeen’s Dream Pty Ltd), submitted 21 September 2023; C4, The User Guide for the Brooks RadioLINK Alarm System Strobe Light and Vibration Pad Module, submitted 21 September 2023; C5, A description of the Brooks High Intensity Strobe with Vibration Pad for Deaf, obtained from the Brooks website, submitted 21 September 2023; C6, A description of the Brooks High Intensity Strobe for Deaf and Hard of Hearing, obtained from the Brooks website, submitted 21 September 2023; C7, Email correspondence from TP Records dated 4 October 2023, submitted 25 September 2023.
In making my decision, I have taken into account the Applicant’s goals and aspirations as set out in his statement of participant supports, in particular, to make his home safe and accessible.
The Applicant asked me to consider a decision of the Tribunal, differently constituted, Buckley and National Disability Insurance Agency,[19] in which a decision was made that the Visualert system was a reasonable and necessary support. I note some of the facts in that case were different. For example, the quote for the Visualert system to be provided in that case was $7,124 with an installation cost of $772. The total cost quoted for this Applicant’s Visualert system is $14,636.36 (see below), which is almost double the price quoted in Buckley. Also, different witnesses appeared before the Tribunal in that case. Significantly the Applicant in that case did not change his view about Visualert and seek a different visual alarm system. While I have considered that decision, I am not bound by it. For my reasons given below, I have reached a different conclusion in this case.
[19] Buckley and National Disability Insurance Agency [2021] AATA 3622 (Buckley).
The Applicant provided six assistive technology reports and recommendations from Full Life Occupational Therapy (FLOT), seeking funding for a smartphone, CCTV cameras with motion sensor lighting, the Visualert system, monthly data, a smartwatch and non-structural home modifications. The Provider Details, recorded in the reports, indicate that Louise Dreyer OT Pty Ltd is the provider and the Applicant’s treating therapists are Louise Dreyer (occupational therapist) and Justina Mills (rehabilitation counsellor). In the RSFIC the Respondent drew to my attention the relationship between Ms Dreyer and the company which, at the time, supplied the Visualert System, noting the following findings were made in Vecchio and National Disability Insurance Agency[20] at [53-57]:
Ms Dreyer is an occupational therapist and is the principal of Full Life Occupational Therapy (FLOT)… Ms Dreyer is married to Mr Johannes Dreyer who is the Director and sole shareholder of Seventeen’s Dream Pty Ltd.
In 2018, Ms Dreyer created the concept of Visualert and her husband, through his company, became the principal supplier of that product to the market…Ms Dreyer agreed that she had a perceived conflict of interest in this matter and told the Tribunal that she took steps to make a declaration to this effect and to advise clients of this fact while also noting that FLOT also recommended other lower cost products to clients.
[20] Vecchio and National Disability Insurance Agency [2021] AATA 3510 (Vecchio)
The Respondent has since provided an ASIC Historical Extract for Assistive Tech Suppliers Pty Ltd (formerly Seventeen’s Dream Pty Ltd) confirming that Mr Dreyer’s directorship ceased on 6 February 2023 and Sibi Thomas Mathew is now the only director. Mr Dreyer has also ceased as the company’s secretary. Mr Dreyer sold his shares in the company for $1000 to Got to Give Nominees Pty Ltd.
The Applicant was asked at the hearing if he knew that Ms Dreyer created the Visualert system and that there may have been a conflict of interest at the time the FLOT reports were prepared. The Applicant indicated he did not know her, and he did not know that she created the system or that her husband had owned the company that supplied the Visualert system. He did not believe he was informed of the relationship, but he still thinks it is a good system.[21]
[21] Transcript, p 37.
In the Applicant’s closing submissions, it was stated that the Applicant “did not know that there was conflict of interest at play with these OTs and visual alert system company. We were told this during the AAT process, so it was quite a shock for us to discover this.”[22] I note none of the FLOT reports declare any potential conflict of interest. Ms Dreyer did not appear before the Tribunal. However, I accept that the Applicant was not aware of Ms Dreyer’s apparent conflict as there is no evidence before me that Ms Dreyer “took steps to make a declaration to this effect and to advise clients of this fact” as she indicated to the Tribunal in Vecchio.
[22] Applicant’s Closing Submissions.
The Respondent has submitted that minimal weight should be given to Ms Dreyer’s evidence because of the perceived conflict of interest. I note at the time FLOT prepared the relevant report, Mr Dreyer was still a company director although that directorship has since ceased. I am concerned that in September 2021, when Vecchio was heard, Ms Dreyer indicated she took steps to declare an apparent conflict of interest, however that does not appear to be the case in this Applicant’s matter. My assessment of the weight to be given to the relevant reports is discussed in more detail below.
Is the Visualert system a reasonable and necessary support?
The Applicant provided a report from FLOT, dated 14 April 2021, recommending the Visualert system and describing it as follows:
A custom made visual and vibrating alerting system (referred to collectively as the ‘AT’), with the following features:
·hardwired connection of multiple alarms: vibrating bed shakers, smoke alarms, doorbell; and
·flashing light outlets (colour-coded to match the multiple alarms) in 14 locations of his home.[23]
[23] JB, FLOT Report pp 171 – 258.
I note Ms Phi-Van Houston, occupational therapist, who provided an independent assessment evaluation at the Respondent’s request, cited and relied on information from Visualert’s website to describe the system. Her information is consistent with the description provided above. This information is not in dispute and is consistent with the description provided in the quote for its installation. Ms Houston also noted it has a back-up lithium battery that is used during power outages.
FLOT argued in the report that the Applicant does not have adequate visual and vibrating notification devices in his home to compensate for his lack of audible input, causing him to have a severe lack of safety and independence.[24] I note however that the Applicant has the Brooks system, albeit uninstalled. It was also argued that the Applicant needs notification in outdoor living areas and internal wet areas, as he cannot hear the sound of an audible alarm from one room to another. FLOT claimed that the Applicant has weak WiFi connection and so devices relying on WiFi would be unsuitable. FLOT argued that the Applicant needs the Visualert system because it provides coloured LED light outlets in multiple locations in the home, wired into the ceiling cornice, with each light strip having different colours, representing different alarms; red for smoke, green for front door and blue for baby cries. I note the Applicant’s children are no longer infants so have concluded a light for baby cries may be of no utility to the Applicant, although it may have other uses, as suggested at the hearing.
[24] Ibid, p 89 – 154.
The most recent quote dated 25 July 2023, valid until 21 October 2023, from the Visualert system provider records that the whole system with five custom two colour LED lights, an additional nine LED lights, an additional smoke detector, an additional doorbell with sound, a bed vibration unit and cabling will cost $10,966.36, not including installation. The quote for installation dated 4 August 2023 is $3,670. Therefore, the total cost for the Visualert system is $14,636.36.[25]
[25] JB, Visualert Quote and Platinum Electrician Quote, pp 294-299.
While the Applicant already has smoke alarms installed in his home, those smoke alarms would need to be replaced as they are not compatible with the Visualert system.[26]
[26] Transcript, p108.
The Applicant has provided a report from Ms Emma Steele, occupational therapist, who described the Brooks system as one of the main types of deaf alert systems that she recommends,[27] although at the hearing she claimed to only occasionally recommend it, if nothing else is available.[28] She concluded however that, while the Brooks products are suitable for the Applicant’s disability related needs, she is of the view they are not alternatives to the Visualert system because they do not interact with his other devices such as smartphones and smartwatches, so will not provide any information or alerts to the Applicant other than when he is in his bedroom. Ms Steele asserted the Visualert system will provide doorbell and smoke alerts throughout the entire home. In her view, considering the Applicant’s family has already been through the experience of a house fire, “it is paramount that they have a reliable system in their home to alert them to fire in all areas of their home. The lack of a reliable smoke detection system in their home causes undue stress to the family.”
[27] JB, Report of Emma Steele (Steele Report) pp 288-293.
[28] Transcript, p 55.
Ms Steele also stated the family do not have a doorbell system at their home currently. When anyone arrives at their home, the Applicant and his wife have no way of being alerted. His children will alert them if they are home. Familiar people will text the Applicant or his wife, however this is not always reliable if they do not have their phone or watch on them.[29]
[29] JB, Steele Report, pp 288-293.
At the hearing Ms Steele indicated that part of her preference for the Visualert system over the Brooks system is that the lights “are very fine LED strips, but it sits in the corners. So they’re quite unnoticeable when the lights aren’t on, but the (Brooks) strobe lights are very big, cumbersome heavy things that have to hang on the wall.”[30]
[30] Transcript, p 67.
I note the photographic evidence of the Brooks strobe light indicates it roughly fits in the palm of the holder’s hand. Also, the product description provided in the Houston report records that the dimensions of the strobe light are 115mm x 45mm. I am not persuaded it is a “big, cumbersome heavy thing” and have concerns this suggests Ms Steele was advocating for a particular outcome in this case.
It was raised with Ms Steele at the hearing that she did not list any of the drawbacks with the Visualert system, other than its higher cost. When asked about the reliability of the Visualert system she stated she only knew that clients were happy with the system. However, like any system there is “always going to be issues with technology.” When asked however how many clients she has who are using the Visualert system, she confirmed “I haven’t actually had any myself. But other people who have had them installed before my involvement. There’s probably about four.” [31]
[31] Transcript, p 62.
Ms Steele confirmed that the Visualert system vibration pad is hardwired so a cable would need to run from the device to the wall.[32]
[32] Transcript, p 68.
I have also considered the evidence from Ms Houston. In her view “there is no system that provides for all alerting needs, not even Visualert… just looking at the costs for the Visualert and other non-wired options, it would appear that it is not a cost effective system, given that it also requires replacement of the lithium battery every 10 years.”[33]
[33] C2, Houston Report, pp 19-20.
Ms Houston explained that the Visualert system “is made up of various third-party devices that are hardwired to a central point. This being the case, having a wireless Ring doorbell and using the existing Brooks products that the Applicant already has, together with his Apple products, would also provide for doorbell and smoke alerts as notifications from both products could be pushed to the Apple devices if they are set up accordingly.”[34]
[34] Ibid p 20.
With respect to connectivity and Wi-Fi concerns expressed by FLOT and the Applicant, Ms Houston noted “a check of the NBN network for the address confirmed that it is connected to the NBN network. A further search for providers for the area/address indicated that fibre to the curb is available for the Applicant’s property, which means that internet should be great there... as for Wi-Fi black spots, there are Wif-Fi extenders available.”[35] I find this evidence casts doubt on the reliability of those claims made in the FLOT reports, regarding connectivity and Wi-Fi concerns.
[35] C2, Houston Report, pp 21-23.
Ms Houston noted that “only one component of the Visualert system should be considered disability specific for the deaf/hearing impaired, not all components. This being the LED light (visual) notification to replace the audible component of standard smoke detectors. The wiring of the system is not deaf/hearing impaired related. The smoke detectors themselves are not deaf/hearing impaired related. It is the mode of delivery of the audible alarm, which the smoke detectors generate, to the deaf/hearing impaired that is disability related.”[36]
[36] Ibid, pp 26.
As to whether the Applicant requires the Visualert system, Ms Houston stated “I am not convinced that he needs this system when he has other devices and products as well. Having the Visualert system alone will not meet all his disability related needs in terms of being notified about various alerts, but having what he already has at his disposal, plus a few more small and low cost additional items, would meet his needs to be alerted, his wife’s and his brother-in-law’s needs in terms of being safe in their home and being alerted to the smoke, visitors etc.”[37]
[37] Ibid pp 30-31.
The Applicant filed another report from FLOT which includes numerous anonymous testimonies said to be from deaf occupants who are users of Visualert, and other deaf users commenting on the impact of having inadequate visual and vibrating notification.[38] These testimonies were included under the heading “Lived Experience”. I explained to the Applicant that, as the testimonies are anonymous and I would not have an opportunity to hear from any of the authors, this would affect the weight I give the testimonies. I note the testimonies are included in a report prepared by Ms Dreyer’s business. I note none of the testimonies raise any shortcomings about the Visualert system, suggesting they do not reflect a balanced assessment of user satisfaction. I am of the view the testimonies appear to be of a marketing nature, rather than assisting a decision maker to assess whether the Visualert system is a reasonable and necessary support. Given the concerns about Ms Dreyer’s conflict of interest, and the anonymity of the testimonies, I give the testimonies no weight.
[38] JB, FLOT Report, pp 241-250.
The Applicant was provided the Brooks system, a visual and tactile smoke alarm system with high intensity strobe lights and a vibrating pad for the bed. It is a hardwired smoke alarm, relying on hardwired connection of the alarm to the strobe light and radiofrequency interconnection of the alarm to the vibrating pad.[39] It requires installation by an electrician. The smoke detector needs to be replaced every 10 years. It comes with a 5 year warranty.[40]
[39] JB, FLOT Report, p 240.
[40] JB, Houston Report, p 17.
While it has been indicated that the Respondent funded the Brooks system, the Applicant provided to the Tribunal photographic evidence of the delivery docket, confirming that the Brooks system was supplied by the Deaf Society of NSW in June 2017, before he became an NDIS participant.[41]
[41] B25, Brooks Picking Slip.
In his evidence at the hearing the Applicant stated the Brooks system cannot be used because “it’s already expired. There’s only a few months left. It can’t be used.”[42] He subsequently provided photographic evidence of the Brooks system; a photograph showing a sticker on a Brooks system stating, “REPLACE BATTERY BY Jan 2023”, another showing a sticker on the other side of the Brooks system stating “Replace By Jan 2028”.[43]
[42] Transcript. p 22.
[43] B23; B24, Images of the Brooks Strobe Device.
In the closing submissions the Respondent provided the following information:
The user manual for the Brooks strobe light unit filed by the Respondent relevantly states:
… If the red light goes off, or if the strobe is weak, or if the vibration pad is weak, the battery will need to be replaced. Contact the nearest address in this leaflet for advice about getting a replacement. The battery also needs to be replaced if it is over 5 years old (see “replace battery by” date on side panel). To remove the battery reverse the instructions in the first part of section 2. Contact nearest address at the end of this leaflet on obtaining a replacement battery. Replace the entire Strobe Module after 10 years operation. (see “replace unit by” date on side panel).[44]
[44] Respondent’s Closing Submissions.
I accept that the battery for the system has expired and needs replacing. However, I do not accept that this means the Brooks system cannot be used. I am of the view the battery can be replaced and, once it is, the Brooks system is operational until January 2028.
Ms Houston has recommended that the Brooks system be checked by Brooks.[45] While the sticker on the unit indicates it is not due to be replaced until 2028, given it was supplied to the Applicant in 2017, I agree with this view.
[45] JB, Houston Report, p 29.
FLOT claimed that the Applicant considered using the Brooks system but formed the view it does not meet his needs because it cannot be used outdoors or in internal wet areas, it does not have a visual doorbell, it does not provide reliable vibrating notification because the vibrating pad uses a power point which can be accidentally unplugged and it relies on Radio Link connection rather than a hardwired connection, and it does not have adequate visual notification of a system fault or malfunction.[46]
[46] JB, FLOT Report, p 193.
At the hearing Ms Steele stated the Brooks system “is just purely a smoke detector and it has a flashing light that has to be connected, usually on a wall, so it’s often in a bedroom. It’s a very bright strobe light. And then you can have a vibrating bed pad added to that. But they’re very big and they have to be on a wall and they have to have power connected to them.”[47]
[47] Transcript, p 54.
Ms Steele confirmed the installation requires an electrician because both the smoke detector and the strobe are wired in. The vibrating pad is connected by a plug-in cord. The system works as follows: if the smoke detector is triggered, the strobe light starts flashing and the vibration pad vibrates to alert the person.[48] She explained that the Brooks system needs to be tested by the electrician when it is installed and replaced every 10 years. The Brooks system also has a back-up lithium battery.[49]
[48] Ibid, p 54.
[49] Ibid, p 55.
Ms Steele agreed that the Brooks system is a reliable smoke detection system. She stated the majority of people have it only in their bedroom, so they are not alerted if the fire or smoke is in another part of the house. She indicated she occasionally recommends it but there are a number of factors she takes into account.[50]
[50] Ibid, p 55.
The Applicant has provided an article from the Port Stephens Examiner, published 19 August 2015, which reports as follows:
(The Applicant was) woken about 3am by a special alarm, installed in December, and the family dog jumping on the bed.
The alarm flashes bright lights, like a strobe, is loud and vibrates the bed when activated.
Mr Woodard, quickly realising something was wrong, opened the bedroom door to see a wall of fire in the loungeroom…[51]
[51] JB, Newspaper article from Port Stephens Examiner titled ‘Medowie Couple who lost everything when their house burned down overwhelmed with community support’ pp 1-3.
I have taken into account the stress the family experienced when they endured a house fire in 2015. However, I note the Applicant’s evidence in the newspaper article that he was alerted by a visual and vibrating fire alarm which was not Visualert. When asked about the fire alarm in place at the time, the Applicant’s response was vague. He said it was “one of the old systems…I can’t remember.”[52] He confirmed however that the old alarm worked, woke him up and he got his family out of the house in time.
[52] Transcript, p 18.
I note the FLOT Assistive Technology CCTV report claimed that “(s)tudies show that those who are Deaf or Hard of Hearing are likely to have decreased mental health and develop mental illnesses such as anxiety or depression.”[53] The report does not cite the source of this assertion. I note there is no medical or psychological evidence supporting any suggestion the Applicant is suffering from a mental illness. In fact, at the hearing the Applicant acknowledged he does not have any psychological conditions diagnosed.[54] I find the inclusion of this claim in the FLOT report is an attempt by the author to achieve the desired outcome, rather than to assist the decision maker arrive at the correct decision.
[53] JB, p 73.
[54] Transcript, p 21.
I note Ms Steele’s assertion that the lack of a reliable smoke detection system in their home causes the Applicant’s family undue stress. The Applicant claimed at the hearing to be worried about the house burning down again and that this is constantly on his mind.[55] The Applicant was asked why he has not installed the Brooks system which, in my preliminary view at the time of the hearing, would provide at least an adequate smoke detection system suitable for the hearing impaired. He told the Tribunal he decided not to install the Brooks system because it needed to be installed by a licensed electrician and it is a fixed alert system. He has been relying on his three standard “for hearing” fire alarms and his hearing children to alert him if there is another fire.[56] In my view, if the Applicant was constantly worried about another house fire, it is reasonable to expect that he would have had the Brooks system installed. Given his choice not to, and the lack of independent evidence from a qualified health professional about the Applicant’s mental health, I am not persuaded the Applicant is suffering undue stress for the reasons given by Ms Steele.
[55] Transcript, p 18.
[56] Transcript, p 46.
FLOT reported that the Applicant “is often home alone without anyone to assist him during emergencies in the event of a burglary or home invasion.”[57] I asked the Applicant about this claim at the hearing. He denied saying he is often home alone. He indicated that he said he was home alone “a few times” when his wife goes horse riding or to other events.[58] The Applicant however claimed that he falls asleep on the couch at any time of the day or night. Sometimes he might be by himself, when his wife is out, or the children are at school or visiting friends, but most of the time they would be there.[59] I am of the view the Applicant’s evidence on this point is more reliable than that of FLOT. I accept the Applicant may be home alone sometimes but certainly not “often” as FLOT has suggested. I am of the view this inconsistency raises concerns that some information in the FLOT report has been embellished by the author for the purposes of achieving a particular outcome.
[57] JB, FLOT Assistive Technology Report – Smartphone, p 16.
[58] Transcript, p 46.
[59] Ibid, p 27.
With respect to the Brooks system which was provided to him, the Applicant claimed that it cannot be used because it has already expired.[60] For the reasons given above I do not agree that the Brooks system cannot be used because it has expired.
[60] Ibid, p 22-24,
While Ms Steele expressed concern about the size of the Brooks strobe light, the Applicant did not raise this concern. Having considered the photographic evidence of the Brooks strobe light, and the product description indicating the dimensions of the device are 115mm x 45mm, I do not agree with Ms Steele’s description of it being a “big, cumbersome, heavy thing”. I am not satisfied the size of the Brooks strobe light is a reason not to consider it a suitable smoke alarm system.
I note Ms Steele confirmed that the Brooks system complies with required Australian standard.[61] The website description for the Brooks High Intensity Strobe with Vibration Pad, provided by the Respondent, is $575.30.[62]
[61] Transcript, p 68.
[62] C6, C6, A description of the Brooks High Intensity Strobe for Deaf and Hard of Hearing, obtained from the Brooks website.
One of the Applicant’s arguments for preferring the Visualert system is that it has a particular coloured light for the doorbell. The Respondent confirmed in the closing submission that the Applicant has been given funding of $500 (included in his Core Supports funding of $40,794.80) for a Bellman video doorbell system, which has a flashing strobe light connected to power points, although the Applicant indicated at the hearing that he was not aware of this funding. The funding appears to have been included in his statement of participant supports dated 30 April 2021. Ms Houston reported that the Bellman system, which retails for $595, contains the Bellman Visit Door Transmitter, Ring Video doorbell and New Ring Chime and enables the user to be “alerted to visitors via the Bellman Visit Flash Receiver, Bellman Visit Alarm Clock or Bellman Visit Pager when you're at home or watch over your home in crystal-clear 1080p HD video, and see, hear and speak to visitors from anywhere. With instant mobile alerts and two-way talk, you can answer the door from your smartphone, tablet and PC.” [63]
[63] C2, Houston Report, p 13.
The Applicant confirmed at the hearing that he has not purchased the Bellman video doorbell system but he has purchased the Bellman wake-up alarm clock. The Bellman video doorbell system was described to the Applicant at the hearing and he was asked if those functions would meet his needs. The Applicant claimed the Bellman would not because “I’ve had problems with it in the past. With the Bellman, it won’t work – solve the problem. It wasn’t really good service, and it had a problem with it… It didn’t meet my needs because it didn’t match to the watch”, referring to his Apple Watch, which he confirmed that he purchased early in 2022. He claimed he had a Bellman doorbell about 12 years ago and it “would go off and I’d go down to check the door, and there was no one there.” [64] I note Ms Houston stated the Bellman video doorbell system can be set up to give notifications via WiFi to a smartphone or smartwatch, which would meet the Applicant’s needs whether he is inside or outside.[65] Given this current notification functionality described by Ms Houston, I am not persuaded the Applicant is referring to the same model when he states that he had a Bellman 12 years ago.
[64] Transcript, p 33.
[65] Transcript, p 109.
Ms Steele told the Tribunal that she recommends Bellman video doorbell systems quite regularly, but only if someone is renting or they are in a small home, “because of problems that we have had with the connect ability.”[66]
[66] Transcript, p 61.
The Respondent’s position
The Respondent submits that the Visualert system sought by the Applicant is not a “reasonable and necessary support” within the meaning of section 34 of the NDIS Act, because:
(a)it largely duplicates equipment already provided to the Applicant, so it is ineligible for funding pursuant to rule 5.1(c) of the Supports Rules;
(b)some parts of the Visualert system are not related to the Applicant’s disability (i.e. the smoke detectors themselves), so they are ineligible for funding pursuant to rule 5.1(b) of the Supports Rules; and
(c)it would not represent value for money, as required by paragraph 34(1)(c) of the NDIS Act.
I note rule 5.1(c) states a support will not be provided or funded under the NDIS if it duplicates other supports delivered under alternative funding through the NDIS. The Respondent has argued in its closing submissions that the Tribunal should find that the funding of the Visualert system would result in duplication of functions which can be performed by his Brooks system, a Bellman doorbell and/or his Swann Security System, and that funding for the Visualert system fails to satisfy the general criteria for supports pursuant to rule 5.1(c), at least insofar as it includes funding for a doorbell alert system and for smoke alerts in rooms where his Brooks system could be installed.
I note rule 5.1(b) states a support will not be provided or funded under the NDIS if it “is not related to the participant’s disability”. The Respondent has submitted in its closing submissions that the Visualert system includes three smoke detectors and would involve the removal and replacement of the Applicant’s existing smoke detectors, and the Applicant does not require smoke detectors because of his disability, but because he is a homeowner. It is only the visual and tactile alert aspects of the Visualert system that are related to the Applicant’s disability. The Respondent has argued that, accordingly, the Tribunal should find, to the extent funding for the Visualert system includes funding for the purchase and installation of new smoke detectors, it fails to satisfy the general criteria for supports pursuant to rule 5.1(b).
I accept the Applicant already has smoke detectors and these would need to be replaced if Visualert was installed but I note the Brooks system also has its own smoke detector. I accept some functionality, the Bellman doorbell system, has already been funded. However, I am not persuaded that Visualert largely duplicates equipment already provided to the Applicant delivered under alternative funding through the NDIS, because the Brooks system was not funded by the NDIS; it was provided to the Applicant by the NSW Deaf Society. Overall, I am not satisfied the Visualert system cannot be provided or funded under the NDIS because it duplicates other supports delivered under alternative funding through the NDIS.
The Brooks system also has its own smoke detector. While I accept all homeowners are required to have smoke detectors, it would appear smoke alarm systems designed to alert the deaf/hearing impaired may require their own smoke detectors. I am not satisfied it is practical to break down the cost to exclude funding for the smoke detector component of a visual and vibrating alert system. I am not persuaded by the Respondent’s argument that the Visualert system cannot be provided or funded because some of its parts are not related to the Applicant’s disability, i.e. the smoke detectors. Overall, I am not satisfied the Visualert system cannot funded because it is not related to the participant’s disability.
I have considered whether the value for money requirement in paragraph 34(1)(c) is met. In closing submissions that the Visualert system would not represent value for money, the Respondent has noted: the cost of the Visualert system and its installation; the requirement to remove and replace the Applicant’s three working smoke detectors; the duplication of a smoke alert function given the Applicant already has the Brooks system and the Bellman doorbell; and the evidence indicating the Brooks, Bellman and Swann Security System are comparable supports, even if the precise manner of operation is different.
I accept that the Respondent has provided funding of $500 for the Bellman system albeit $95 less than the retail price but I am satisfied his overall Core Support funding of $40,794 will cover the small shortfall. I am not satisfied that the problems the Applicant claims to have had 12 years ago with an older Bellman device would necessarily be repeated. I am satisfied, based on Ms Houston’s evidence, that the Bellman system is a suitable product and can send smartwatch alerts, therefore meeting the Applicant’s needs. I agree with the Respondent’s closing submission, that the potential for the Bellman system to experience connectivity and unreliability issues in the radiofrequency communication between the doorbell and the flash receivers should be given less weight as the system can be set up to instead send smartwatch notifications via Wi-Fi. I am satisfied the Applicant’s Bellman product used by him 12 years ago was likely to be a different model to the current version, given the Applicant’s evidence that it was not smartwatch compatible, and the current product has the capacity to send smartwatch notifications via Wi-Fi.
I also note from the Respondent’s closing submissions that a doorbell function can also be performed by the Swann Security System if a camera is placed near the front door so an alert can be sent to the Applicant’s smartphone when movement is detected. Ms Steele acknowledged this in her oral evidence.[67]
[67] Transcript, p 59.
The most recent quote from the Visualert system provider records that the whole system, including lighting for fourteen rooms, an additional smoke detector, an additional doorbell with sound, a bed vibration unit and cabling will cost $10,966.36. I have compared this to the product information for the Brooks strobe light unit which can be purchased for significantly less, $575.30. Even adding the cost for the Bellman doorbell system, $595, the combined cost for Brooks and Bellman systems is substantially less than the Visualert system. Installation of the Visualert system is quoted at $3,670, so the system installed is quoted to cost is $14,636.36. I agree with the Respondent’s submission that, while the Brooks system would need to be installed by an electrician, an inference can be drawn that this would cost substantially less than the purchase and installation of the Visualert system. I take into account that the Applicant may want an visual alert system in his living room. I am of the view that, even if the Brooks system needs to be replaced, or two Brooks units need to be purchased to provide for one in his living room when he is home alone, it would still cost significantly less than the Visualert system.
I have considered the Applicant’s argument that he needs a visual alert in each room in the house. I am not satisfied that this is the case because his children are not hearing impaired and so their bedrooms do not require a visual alert system. I am not satisfied that the Brooks system is not adequate because the Applicant cannot receive alerts on his Apple Watch, or it cannot be used in wet areas. I am not satisfied the Applicant will always be wearing his Apple Watch because, for example, from time to time it will need to be removed for charging and it may be removed when showering. While I accept the Visualert system provides this extra functionality, including alerts in wet and outdoor areas, I am not persuaded this is reasonable and necessary. I take into account that both Ms Steele and Ms Houston formed the view the Brooks system is suitable for the Applicant’s disability related needs.
Regarding the FLOT’s argument that the Brooks system is unsuitable because the vibration pad requires a power point, which can be unplugged accidentally, I note the Visualert vibration pad also requires a cable because it is hardwired. I am of the view this could also be accidentally unplugged. I am not satisfied the Brooks system requiring a power point is a reason to find it is unsuitable.
In any case the Applicant has now submitted that he no longer wishes to have the Visualert system funded. I note that the Brooks System was provided to the Applicant in 2017 but he did not have it installed, despite having endured the loss of the family home to a house fire, because it needed to be installed by a licensed electrician and it is a fixed alert system. Instead the family has relied on standard “for hearing” smoke alarms. I am of the view, now that the Applicant has submitted that the Visualert system does not meet all his family’s needs, and he would prefer another system, Tiny Red Box, that he will not have the Visualert system installed even if it is funded. I am not satisfied the Visualert system would be value for money if it is not installed.
I have considered the requirements of rule 3.1 of the Supports Rule, and in particular Rule 3.1(a), and find there are comparable supports which would achieve the same outcome at a substantially lower cost – the Brooks and Bellman systems.
Considered overall, for the reasons given above, I am not satisfied the Visualert system, previously requested by the Applicant, would represent value for money. Accordingly paragraph 34(1)(c) of the NDIS Act is not met. As each of the requirements in subsection 34(1) of the NDIS Act must be met, it is not necessary for me to consider whether the other requirements in subsection 34(1) are met.
I find the Visualert system sought by the Applicant is not a reasonable and necessary support within the meaning of section 34 of the NDIS Act.
Is Tiny Red Box a reasonable and necessary support?
After the hearing, in the closing submissions prepared by the Applicant’s wife, it was submitted that, while the Applicant had sought the Visualert system, as they understood it was the only one available that nearly met all their needs, it is not a perfect fit for their family. Recently, they have discovered Tiny Red Box through a support coordinator who works with multiple Deaf and Deafblind clients who have the systems installed in their own homes. They believe this is a superior system that suits their needs, as it has Braille features.
The Applicant has not provided any further particulars regarding the functionality, specifications or cost of Tiny Red Box. This support was not sought until after the hearing.
On the evidence before me I am not satisfied the requirements set out in subsections 34(1)(a), (b), (c) or (d) of the NDIS Act are met. I am not satisfied Tiny Red Box is a reasonable and necessary support within the meaning of section 34 of the NDIS Act
Are the CCTV security camera system/floodlights reasonable and necessary supports?
The Applicant provided an assistive technology report dated 1 December 2020 prepared by FLOT, [68] in which it is submitted that the Applicant needs a “CCTV security camera system that connects with the AT to enable remote controlling, viewing and visual notifications. Without the AT, Mr. Woodard cannot access these key features of a CCTV system and lacks visual identification and notification of people in the external areas of the home.” It is submitted that, due to his hearing disability, the Applicant cannot rely on sounds to notify him of intruders so he requires visual notification, and “due to the size and layout of the home, Mr. Woodard has difficulty viewing the external areas of the home from inside the house… (his) home has a street front, and it does not have external structures to provide privacy and enclosure.” He is concerned because he lives with his deafblind wife who shares his communication needs and cannot communicate during emergencies. His wife cannot notify him of intruders in the home. It is claimed he is often home alone, which for the reasons given above I do not accept, without anyone to assist him during emergencies or in the event of a burglary or home invasion.
[68] JB, FLOT Assistive Technology Report – Smartphone, p 16.
The Applicant also provided a FLOT Assistive technology - CCTV report, dated 4 January 2021,[69] recommending eight CCTV Cameras with Motion Sensor Lighting, a Digital Video Recorder, and smart viewing and notification. It also recommends further security floodlights with motion and night sensors.
[69] JB. FLOT Assistive Technology Report – CCTV Cameras with Motion Sensor Lighting p 38.
The Applicant has a Swann Security System, purchased on his behalf, in about 2019, using his NDIS funds by a previous Support Coordinator, he states without any consultation. It remains unused, in its original packaging. However, the Applicant seeks funding for a different CCTV system because he wants to “see who is in the yard and know what the dogs are barking at”.[70] He does not believe the Swann Security System meets his needs and seeks different CCTV cameras because of his home security concerns. He wants cameras to alert him to the fact that something might be going on outside and enable him to go and check. He claims that as a deaf person he worries more that the average person about break-ins because he cannot hear his surroundings.[71] In his oral evidence the Applicant told the Tribunal that he has not had any break-ins at his house, but it has happened to neighbours.[72]
[70] JB, Applicant’s updated supplementary statement of lived experience, p 283.
[71] Transcript, p 42.
[72] Transcript, p 21.
When asked why the Applicant has not installed the Swann Security System if he is concerned about safety, he said “there’s a lot of wiring and I think the newer alert would be better suited because there’s less wiring. And also the current system doesn’t…link into a watch or other devices. So we can’t get alerts unless we were actually in the room where the video camera would be.”[73] He then acknowledged that the Swann Security System does connect to a phone but indicated that because it does not connect to his smartwatch it is unsuitable. I am not satisfied that this reason was relevant in 2019 when the system was provided to him because he did not purchase his Apple Watch until 2022.
[73] Transcript, p 28.
The Respondent has submitted that the Tribunal should find a CCTV system is not a reasonable and necessary support for the following reasons:
(a)it duplicates the Swann Security System already delivered to him, so it is ineligible for funding pursuant to rule 5.1(c) of the Supports Rules;
(b)it relates to home security, being a day-to-day living cost not attributable to his disability support needs, so it is ineligible for funding pursuant to rule 5.1(d) of the Supports Rules.
I am satisfied the Applicant was provided with the Swann Security System by the NDIS. The FLOT report records that it is the type of system recommended by those practitioners.[74] Ms Steele and Ms Houston provided oral evidence confirming the system could be wired, meeting the features recommended in the FLOT report.
[74] JB, Steele Report, p 291.
The Applicant raised several concerns about the Swann Security System in his oral evidence: he cannot take it back; it needs to be installed; there is a lot of wiring required; it does not link to a watch; it only has three or four cameras; it needs to be connected to the Wi-Fi which will not reach the all cameras’ positions; and, he needs a system which will cover more than 50 metres, beyond the Swann Security System’s range.
The Respondent has submitted in response:
While the challenges of giving evidence through interpreters must be borne in mind, the Applicant’s explanations for why the Swann system is unsuitable for him plainly evolved over the course of the hearing. His evidence on this subject lacked clarity and consistency and was based on some inaccurate assumptions. It is submitted that none of the explanations given by the Applicant individually or collectively establish that the Swann system is unsuitable for his home security needs. In particular:
(a) The fact that the Swann system cannot be returned is irrelevant to its suitability.
(b) The fact that the Swann system needs to be installed is also irrelevant. Further, while the Applicant initially said that he “tried” to and “did” ask the NDIA for assistance with installing the Swann system, he later confirmed that he did not ask for it to be installed, because without watch connectivity “there was no point” and “the NDIS is not easy to get in contact with”.
(c) There is no objective or specific evidence before the Tribunal as to the type or amount of wiring that would be required to install the Swann system, or that there are any other available products suitable for the Applicant’s home which would require less or different wiring.
(d) The Applicant accepted that if he had his smartphone with him, he would be able to receive notifications and immediately see live video from the Swann system. However, he said that he did not have his phone with him all the time and that he should not have to carry it around the house just to receive alerts. It is submitted that it would not be unreasonable to expect the Applicant to keep his phone with him when he wants to receive alerts from the Swann system. In any event, there is no objective or specific evidence before the Tribunal of any other available products suitable for the Applicant’s home which would provide smartwatch notifications.
(e) As noted above, the Swann system includes 8 cameras, being the number of cameras recommended by Ms Dreyer and Ms Mills for the Applicant’s house.
(f) As noted above, Ms Houston’s evidence was that the Swann cameras would communicate with the base through cables rather than wirelessly.
(g) As the Swann system does not operate through Wi-Fi, questions of its Wi-Fi range do not arise. In any case, it is doubtful that in the Applicant’s home any camera would need to be “over 700 metres” from the base. There is also no objective or specific evidence before the Tribunal of any other available products which would be able to communicate wirelessly over such a distance.[75]
[75] Respondent’s Closing Submissions, para 62.
Having considered carefully the Applicant’s oral objections to using the Swann system, I am inclined to agree that his oral evidence on this issue suggests that he was searching for reasons to demonstrate the Swann system is not suitable. I do not agree with the Applicant that the system is not suitable for his home security needs. I find any CCTV security system would need to be installed. The Applicant has not provided particulars about an alternative system and the wiring required. I agree with the Respondent’s argument that it would not be unreasonable to expect the Applicant to keep his phone with him when he wants to receive alerts from a CCTV security system. I also note the Swann Security System meets the recommendations made in the FLOT report and that WiFi concerns would not arise.
The Applicant has indicated he would prefer a different CCTV system. However, he has provided no evidence of the features, specifications and cost of any alternative system.
Considered overall, I am satisfied the Swann system is adequate for the Applicant’s home security needs. I am of the view funding any other security system would be a duplication of a support already delivered through the NDIS. Therefore, funding of an alternative CCTV system is prevented by the application of rule 5.1(c).
I have also considered whether the funding of a CCTV security system complies with rule 5.1(d). I am of the view home security costs relate to day to day living costs. I am satisfied that all homeowners want to feel secure and safe in their home, regardless of any disability support needs. I accept the Applicant might feel safer and more secure with a CCTV security system in place, but I note he has chosen to not install the Swann system. Having considered the qualification in rule 5.2(a), I am not persuaded a CCTV security system is an additional living cost incurred by the Applicant solely and directly as a result of his disability support needs, as I am of the view all people, regardless of any impairment, need a CCTV security system to be made aware of, and have recorded, events outside their home, without going outside themselves. Accordingly, I am of the view funding of a CCTV system is also prevented by the application of rule 5.1(d).
The Applicant’s request for funding for a CCTV system includes a request for motion sensor floodlights, specifically for his wife and brother-in-law because of their visual impairments.[76] I note the Applicant’s wife and brother-in-law are both deafblind. The Applicant however does not have a visual impairment. I am not satisfied this request relates to the Applicant’s needs. Accordingly, with respect to this particular support request, I find the funding of floodlights is prevented by the application of rule 5.1(b).
[76] Transcript, pp 44-45.
The Respondent also made submissions that the requested CCTV security system is not most appropriately funded under the NDIS. I am of the view that it is not necessary for me to consider this provision as the Supports Rules 5.1(c) and 5.1(d) are not met.
Accordingly, I am not satisfied a CCTV security camera system and/or floodlights are reasonable and necessary supports within the meaning of section 34 of the NDIS Act
CONCLUSION
I am not satisfied that the Visualert system, Tiny Red Box, or an alternative CCTV security system and/or floodlights, sought by the Applicant, are reasonable and necessary supports as the funding of each is prohibited by at least one of the Supports Rules and/or other requirements of subsection 34(1) of the NDIS Act.
There is nothing before me to indicate that the supports provided in the Applicant’s plan approved on 12 October 2021, as varied on 20 December 2022 following the remittal under section 42D of the AAT Act, are not reasonable and necessary supports. Accordingly, I have concluded the appropriate course of action in this case is to affirm the decision under review.
DECISION
The Tribunal affirms the decision under review dated 12 October 2021, as varied on 20 December 2022, pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D Connolly
........................................................................
Associate
Dated: 18 December 2023
Date(s) of hearing: 20, 21, 28 September 2023 Date final submissions received: 21 November 2023 Applicant: In person Counsel for the Respondent: Mr C Lum
0
4
0