WQSW and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2024] ARTA 235 (24 December 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
Tribunal Number:2023/0486
Re:WQSW
APPLICANT
AndChief Executive Officer, National Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member J Collins
Date:24 December 2024
Place:Brisbane
DECISION
From 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Pursuant to section 105 (c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with a direction that:
1.Within 14 days of this decision WQSW’s statement of participant supports specifies the following supports as reasonable and necessary:
i.Level 2 support coordination - 26 hours over 12 months calculated at a rate set out in the NDIS Pricing Arrangements and Price Limits;
ii.Two pairs of bilateral supportive above ankle shoes - $600.00;
iii.Low-cost physiotherapy items such as compression garments - $500.00;
iv.Alert System for WQSW’s bedroom door - $157.00;
v.Proloquo2Go device - $80.00;
vi.Griffin Survivor All-Terrain Case with shoulder strap attachment – $80.00;
vii.Apple iPad - $500.00;
viii.Low-cost therapeutic items to improve coordination, strength and mobility of oral motor muscles involved in eating and speaking - $500.00;
ix.Adapted equipment incl but not limited to cutlery to support WQSW with feeding - $300.00;
x.Tripp Trapp High-Chair - $440.00;
xi.160 x ID Comfy Junior pants 4-7 years, 17–27 kg Pack/14 - $3,264.00;
xii.156 x Purely Baby Aqua and water wipes, Pack of 70 - $1,113.68;
xiii.156 x Cello RedWipe Silk 30cm x 33com Pack/100 - $1,439.72;
xiv.12 x Cello Maxi Economy Bluey 450ml 60cm x 90cm, Pack 75 - $940.80;
xv.12 x Sudocream 250g tub - $329.21;
xvi.24 x Molicare Skin Cleansing Foam 400ml - $230.47;
xvii.24 x Molicare Skin Protection Foam 100ml - $256.08;
xviii.Osmolax Osmatic laxative 30 Doses, 510g at $20.71 each - $497.11;
xix.2 x Conni Kids Swim Shorts Ocean Blue (4–6 year old) - $193.60;
xx.6 x Night n Day Absorbent Bed Pads, King Single, 2000ml capacity - $664.20;
xxi.6 x Fusion Sheet Set Cobalt, King Single - $2,284.80;
xxii.2 x Duratherme Waterproof Quilt Insert, King Single - $751.96;
xxiii.2 x Durabreather Cover Set, Cheeky & Wild (includes 1 doona cover, 1 x pillowcases, King single bed, set) - $627.44;
xxiv.2 x Conni Large Chair pads - $60.80;
xxv.1 Squatty Potty toilet stool (7) - $67.75;
xxvi.12 x V-Wipes Hospital Grade Disinfectant Wipes, Pack/80 - $139.92;
xxvii.12 x Nitrile Gloves Large, Box/100 - $109.56;
xxviii.12 x Aqium Gel Hand Sanitiser 1 Litre - $218.33;
xxix.4 x Freight Charges for delivery of NDIS continence aids and consumables - $95.93;
xxx.Specialist Behavioural Intervention support of 45 hours per annum;
xxxi.A Behavioural Management Plan which includes Training in Behavioural Management Strategies of 20 hours per annum ;
xxxii.16 hours per week of support worker assistance for WQSW to be used flexibly in the home and community;
xxxiii.6 hours per year of dietician services; and
xxxiv.Solace Sleep Floorline bed at a cost of $7,778.00.
2.The date by which the Agency must reassess WQSW’s plan is to be 12 months after the date on which the supports in (1) above are included in the Applicant’s statement of participant supports;
3.All other supports in WQSW’s existing statement of participant supports are to be replicated pro-rata from the date of this decision until the reassessment date;
4.The management of the supports referred to in (1)(xxx) and (1)(xxxi) is to be Agency managed; and
5.Subject to [4] the management of funding for all other reasonable and necessary supports is to remain the same as the management for those supports in the statement of participant supports dated 15 December 2022.
...............................[SGD].........................................
Senior Member J Collins
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME –- Cerebral palsy - Autism – ERF - hypotonia – Global developmental delay – Gastro-oesophageal reflux disease- Sleep apnoea- reasonable and necessary supports – consideration of section 34 National Disability Insurance Scheme Act 2013 (Cth) - Support worker assistance- Respite - Special behavioural intervention support - dietician - Hi-Lo bed- Continence assessment - decision set aside and remitted to the Respondent
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act)
Administrative Appeals Tribunal Act 1975 (Cth), s103
Administrative Review Tribunal Act 2024 (Cth) s105
National Disability Insurance Scheme Act 2013 (Cth) s3, s4, s10, s33, s34, s35
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024, s7.
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024
National Disability Insurance Scheme (Supports for Participants) Rules - 1 July 2013, Rules 1, 2, 3, 5, 7Cases
G v Minister for Immigration and Border Protection [2018] FCA 1229
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF [2020] FCFCA 79
BIJD v National Disability Insurance Agency [2018] AATA 2871 at [40]–[41]
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60Secondary Materials
NDIS – Operational Guidelines - Reasonable and necessary supports, as of 6 October 2023
REASONS FOR THE DECISION
WQSW, a 4-year-old male, is a participant of the National Disability Insurance Scheme (‘the scheme’). He seeks an increase in the funding of his supports.
The issue before the Tribunal is whether the supports sought by WQSW are ‘reasonable and necessary’ supports pursuant to section 34 of the National Disability Insurance Scheme Act 2013 (‘NDIS Act’) and should therefore be included in his statement of participant supports (‘SOPS’) made pursuant to the scheme.
BACKGROUND
Following becoming a participant in the scheme on 15 December 2022 the Chief Executive Officer of the National Disability Insurance Agency (‘the Agency’) approved a participants plan (‘the plan’) for WQSW. The plan included a Statement of Participant’s supports (‘SOPS’) for a period from 15 December 2022 until 14 December 2024.[1]
[1] Respondent’s submissions dated 26 September 2024 at [9].
WQSW requested an internal review of his SOPS in order to seek further supports in relation to his impairments.[2]
[2] T17.
On 13 January 2023 the Agency affirmed its original decision to refuse funding for these supports (‘the decision under review’).[3]
[3] T1A, Respondent’s submissions dated 26 September 2024 at [11].
WQSW subsequently applied to the Tribunal for a review of the decision under review on 25 January 2023.[4] In doing so WQSW sought funding for 38 supports.
[4] T1.
At the hearing WQSW was not legally represented. His mother M advocated on his behalf with the assistance of an advocate, Ms Sarah Bonanno of Inclusivity Plus. The Agency was represented by Mr McGlade of Counsel instructed by Moray Agnew Lawyers.
ISSUES
In relation to the 38 supports sought by WQSW during this review process, the Agency has subsequently conceded that the following supports are reasonable and necessary for WQSW:[5]
[5] Respondent’s Supplementary Statement at [17].
i.Level 2 support coordination - 26 hours over 12 months calculated at a rate set out in the NDIS Pricing Arrangements and Price Limits;
ii.Two pairs of bilateral supportive above ankle shoes - $600.00;
iii.Low-cost physiotherapy items such as compression garments - $500.00;
iv.Alert System for WQSW’s bedroom door - $157.00;
v.Proloquo2Go device - $80.00;
vi.Griffin Survivor All-Terrain Case with shoulder strap attachment – $80.00;
vii.Apple iPad - $500.00;
viii.Low-cost therapeutic items to improve coordination, strength and mobility of oral motor muscles involved in eating and speaking - $500.00;
ix.Adapted equipment incl but not limited to cutlery to support WQSW with feeding - $300.00;
x.Tripp Trapp High-Chair - $440.00;
xi.160 x ID Comfy Junior pants 4-7 years, 17-27 kg Pack/14 - $3,264.00;
xii.156 x Purely Baby Aqua and water wipes, Pack of 70 - $1,113.68;
xiii.156 x Cello RedWipe Silk 30cm x 33cm Pack/100 - $1,439.72;
xiv.12 x Cello Maxi Economy Bluey 450ml 60cm x 90cm, Pack 75 - $940.80;
xv.12 x Sudocream 250g tub - $329.21;
xvi.24 x Molicare Skin Cleansing Foam 400ml - $230.47;
xvii.24 x Molicare Skin Protection Foam 100ml - $256.08;
xviii.Osmolax Osmatic laxative 30 Doses, 510g at $20.71 each - $497.11;
xix.2 x Conni Kids Swim Shorts Ocean Blue (4–6 year old) - $193.60;
xx.6 x Night n Day Absorbent Bed Pads, King Single, 2000ml capacity - $664.20;
xxi.6 x Fusion Sheet Set Cobalt, King Single - $2,284.80;
xxii.2 x Duratherme Waterproof Quilt Insert, King Single - $751.96;
xxiii.2 x Durabreather Cover Set, Cheeky & Wild (includes 1 doona cover, 1 x pillowcases, King single bed, set) - $627.44;
xxiv.2 x Conni Large Chair pads - $60.80;
xxv.1 Squatty Potty toilet stool (7) - $67.75;
xxvi.12 x V-Wipes Hospital Grade Disinfectant Wipes, Pack/80 - $139.92;
xxvii.12 x Nitrile Gloves Large, Box/100 - $109.56;
xxviii.12 x Aqium Gel Hand Sanitiser 1 Litre - $218.33;
xxix.4 x Freight Charges for delivery of NDIS continence aids and consumables - $95.93;
xxx.Specialist Behavioural Intervention support of 45 hours per annum; and
xxxi.A Behavioural Management Plan which includes Training in Behavioural Management Strategies of 20 hours per annum.
Prior to the determination of this review WQSW withdrew a request for funding of:
xxxii.Additional waste collection service in the sum of $382.04 per year; and
xxxiii.Twelve bottles of one litre Cetaphil Moisturising lotion in the sum of $691.02 per year;
Therefore for the purpose of this review WQSW seeks funding for the following supports which remain in dispute:
xxxiv.Support worker assistance of 43 hrs per week for 52 weeks per year;
xxxv.Overnight support worker respite comprising 2 active overnight shifts per week for 48 weeks of the year;
xxxvi.12 hours per annum of Dietician services, comprising of monthly sessions;
xxxvii.Paediatric Stomal/Continence Therapist Support of 20 hrs per year; and
xxxviii.A Hi-lo bed.
The Agency contends that these supports are not ‘reasonable and necessary’ for the purposes of s 34(1) of the NDIS Act.
THE LEGAL FRAMEWORK
National Disability Insurance Scheme Act 2013 (Cth)
Section 34 of the NDIS Act identifies what constitutes a ‘reasonable and necessary’ support under the scheme.
At the time of the commencement of the hearing section 34 of the NDIS Act provided as follows:
Reasonable and necessary supports
(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.
(2)The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
On 3 October 2024 and prior to the completion of this review the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (‘the Amending Act’) made a range of ‘amendments’ to the NDIS Act.
The amendments in respect of the requirements pursuant to section 34 of the NDIS Act will apply to this review.[6]
[6] Section 129 National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No 1) Act 2024.
Section 34 of the NDIS Act, as amended, provides as follows (Tribunal emphasis of amendments):
Reasonable and necessary supports
(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:
(aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(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 an NDIS support for the participant.
Note: For the purposes of paragraph (aa):
(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b) a participant's disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
(2)The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).
Section 34(1) is cumulative and therefore all the criteria must be met.
Section 34(1)(aa) of the NDIS Act as an amendment imposes an additional requirement of the criteria. This additional requirement is the consideration of whether the support is necessary to address the needs of WQSW which arise from the impairment/s for which he met the disability requirements and/or the early intervention requirements.
Section 34(1)(f) of the NDIS Act is also an amendment however it is a replacement of ‘old provision’ with a ‘new provision’.
This new provision of section 34(1)(f) of the NDIS Act requires that the support is an ‘NDIS support’.
Also relevant to this review is the inclusion of section 10 to the NDIS Act, made pursuant to the Amending Act. Section 10 of the NDIS Act provides a definition of what constitutes an ‘NDIS Support’ for the purposes of section 34(1)(f) of the NDIS Act (as amended). Section 10 of the NDIS Act provides as follows:
Supports that are NDIS supports
(1)Subject to subsections (4) and (9), a support is an NDIS support for a person who is a participant or prospective participant if the support is declared by National Disability Insurance Scheme rules made for the purposes of this subsection to be an NDIS support for:
(a) participants or prospective participants generally; or
(b) a class of participants or prospective participants that includes the person.
Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).
(2)Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (1), the Minister must be satisfied:
(a) for rules to which paragraph (1)(a) applies--that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or
(b) for rules to which paragraph (1)(b) applies--that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.
(3)National Disability Insurance Scheme rules may declare a support for the purposes of subsection (1) only if at least one of the following applies:
(a) the declaration of the support implements Australia’s obligations under:
(i)the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006; or
(ii)any other agreement with one or more other countries;
(b) the declaration of the support enables the provision of sickness benefits.
Note: For subparagraph (a)(i), the Convention on the Rights of Persons with Disabilities is in Australian Treaty Series 2008 No. 12 ([2008] ATS 12) and could in 2024 be viewed in the Australian Treaties Library on the website ( that are not NDIS supports
(4)The National Disability Insurance Scheme rules may declare that a support is not an NDIS support for:
(a) participants or prospective participants generally; or
(b) a class of participants or prospective participants.
Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).
(5)Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (4), the Minister must be satisfied:
(a) for rules to which paragraph (4)(a) applies--that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or
(b) for rules to which paragraph (4)(b) applies--that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.
(6)The CEO may determine, in writing, that a support is taken to not be declared under subsection (4) in relation to a participant if:
(a) the support is prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and
(b) the support would, apart from subsection (4), be an NDIS support for the participant; and
(c) the participant applies to the CEO in accordance with subsection (7) for the determination; and
(d) the CEO is satisfied that:
(i)the support would replace one or more other supports that are NDIS supports for the participant; and
(ii)the cost of the support is the same or lower than the total of the costs of the supports it would replace; and
(iii)the support would provide the same or a better outcome for the participant than the supports it would replace; and
(iv)any other conditions specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph are met in relation to the support, the participant, or both.
Note 1: A determination may be revoked under subsection 33(3) of the Acts Interpretation Act 1901.
Note 2: The National Disability Insurance Scheme rules may prescribe a support for the purposes of paragraph (a) by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).(7)An application under paragraph (6)(c) must:
(a) be in the form (if any) approved by the CEO; and
(b) include any information, and be accompanied by any documents, required by the CEO; and
(c) be made in accordance with any other requirements specified in the National Disability Insurance Scheme rules for the purposes of this paragraph, which may include requirements as to the circumstances in which an application may, or may not, be made.
(8)The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of subsection (6), including by prescribing requirements with which the CEO must comply, methods or criteria that the CEO is to apply, or matters that the CEO may, must or must not take into account, in deciding whether to make a determination under that subsection.
(9)A support is not an NDIS support for a participant or prospective participant if the support consists of the provision of:
(a) sexual services; or
(b) alcohol; or
(c) drugs, the possession of which is a contravention of a law of the Commonwealth, a State or a Territory.
Section 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 section 34(1) are met in respect of a requested support.
Section 35 of the NDIS Act provides for the making of rules in relation to prescribing reasonable and necessary supports or general supports that will not be funded or provided under the NDIS. The relevant rules in respect of this review are the:
· National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘Supports Rules’) and
· National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (‘NDIS Supports Transitional Rules’).
Rules 3 and 5 of the Supports Rules relate specifically to subsections 34(1)(c)-(e) of the NDIS Act and provide as follows:
Value for money
3.1In 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).
Effective and beneficial and current good practice
3.2In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
3.3In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
Reasonable family, carer and other support
3.4In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:
(a) for a participant who is a child:
(i)that it is normal for parents to provide substantial care and support for children; and
(ii)whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age; and
(iii)the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and
(iv)whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing;
(b) for other participants:
(i)the extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community; and
(ii)the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:
(A) the age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and
(B) the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and
(C) the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and
(iii)the extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes;
(c) for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.
General criteria for supports
5.1A support will not be provided or funded under the NDIS if:
(a) it is likely to cause harm to the participant or pose a risk to others; or
(b) it is not related to the participant’s disability; or
(c) it duplicates other supports delivered under alternative funding through the NDIS; or
(d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2The 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.
Schedule 1 of the NDIS Supports Transitional Rules identifies supports which are declared NDIS Supports for the purposes of s 10(1) of the NDIS Act. Likewise, Schedule 2 of the NDIS Supports Transitional Rules identifies supports which are declared as not NDIS supports for the purposes of s 10(1) of the NDIS Act.
In McGarrigle v National Disability Insurance Agency[7] at [43] Mortimer J (as Her Honour then was) made the following observations in respect of these rules:
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.
[7] McGarrigle v National Disability Insurance Agency [2017] FCA 308 (‘McGarrigle’).
The phrase ‘reasonable and necessary’ is not defined in the Act. It is a composite phrase and should be considered as such. In McGarrigle Mortimer J also stated as follows:[8]
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.
[8] ibid at [91].
The Full Court in National Disability Insurance Agency v WRMF[9] also considered the meaning of reasonable and necessary supports, and stated as follows [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.
OPERATIONAL GUIDELINES
The Agency issues Operational Guidelines in relation to what are considered ‘reasonable and necessary supports’ in a participant’s plan. There is no power conferred by the Act to make these Operational Guidelines, and they are issued in an exercise of executive power.[10] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines. However, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[11] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[12] where Mortimer J held:[13]
Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it.
Accordingly, unless the Operational Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in a determination of what is a reasonable and necessary support for WQSW. The Guidelines relevant to this review are the NDIS – Operational Guidelines - Reasonable and necessary supports.[14]
[10] G v Minister for Home Affairs [2019] FCAFC 79 at [18].
[11] [1979] AATA 179 (1979); 2 ALD 634.
[12] [2018] FCA 1229.
[13] ibid at [171].
[14] Webpage: ourguidelines.ndis.gov.au
EVIDENCE
I have considered all the written evidence filed with the Tribunal provided in the joint bundle, the oral evidence provided at the hearing on 28, 29 and 30 August 2024, 4 September 2024 and 9 December 2024, and the parties’ closing submissions. I will refer in my decision to evidence that in my view is directly relevant to the determination of this matter.
In making my decision in respect of what supports should be included in WQSW’s SOPS I have undertaken a fact intensive exercise. This exercise includes as a consideration WQSW’s individual circumstances, impairments and needs.
Evidence about WQSW
The evidence overwhelmingly supports, and it is not disputed, that WQSW has the following diagnoses and difficulties:
· Cerebral palsy (‘CP’);
· ERF-related craniosynostosis syndrome (‘CSS’);
· Hypotonia;
· Global developmental delay;
· Obstructive Sleep Apnoea;
· Macrocephaly;
· Gastro-oesophageal reflux disease (‘GORD’);
· Right ear negative pressure;
· Dairy and soy allergies;
· Recurrent otitis medias and chronic glue ear;
· Mild hearing loss;
· periventricular leukomalacia;
· feeding difficulties;
· Laryngomalacia;
· speech and language delay; and
· poor impulse control. [15]
[15] T7, T13, A15, A23, A32.
WQSW lives with his parents and his 19-year-old brother ‘B’.
The goals included in WQSW’s plan[16] are that his parents would like him to:
i. Improve his vocalisations to work towards speech of an age-appropriate level;
ii. Build his emotional development at an age-appropriate level;
iii. Improve his physical ability to achieve age-appropriate milestones and fine motor function;
iv. Begin exploring concepts and play at an age-appropriate level;
v. Begin to play with toys and others at an age-appropriate level;
vi. Feed safely and expand his oro-motor skills to eat solids and to be able to travel safely in the car.[17]
[16] s33(1)(a) of the NDIS Act.
[17] Exhibit 3.
WQSW attends a mainstream child-care two part days a week and an Early Childhood Development Program (ECDP) one day a week. He also attends the following therapies:
· occupational therapy;
· speech therapy;
· swimming lessons; and
· physiotherapy.
Developmentally WQSW is estimated to be functioning at around the level of a 2-year-old child.[18]
[18] Dr Adriane Sinclair 11/6/24.
WQSW finds it challenging to self-regulate. This difficultly impacts on his participation and engagement in day-to-day activities.[19] He also engages in self-harming behaviours as a form of frustration and communication.
[19] T13.
WQSW is ‘basically non-verbal’. In or about March 2024 however WQSW started using a communication device, and he is now able to put some word combinations together.[20]
[20] Dr Adriane Sinclair 11/6/24.
WQSW has poor sleep due to obstructive sleep apnoea. He wakes several times each night and requires a nappy change, feeding and settling.
WQSW also has low muscle tone due to hypotonia. He is more prone to illness and has had multiple episodes of viral and bacterial infections affecting his lungs and ears.[21]
[21] A16.
WQSW is affected by severe sensory overload especially when accessing the community. As a result he can become overwhelmed and prone to impulsive behaviours. His behaviours can also escalate to the point of hyperventilation and vomiting.
Evidence of Professor David Coman
Professor Coman is a clinical geneticist, metabolic physician and paediatrician. He assessed WQSW in February 2023 and provided two reports to the Tribunal.[22]
[22] A13, A15.
Professor Coman provided diagnoses of CP and CSS. He described CSS as a genetic disorder which is ‘a permanent and lifelong diagnosis and is significant in terms of causality of disability’.[23]
[23] A15.
Professor Coman’s broad opinion is that WQSW requires ongoing support in respect of his mobility, communication, social skills and self-care.[24] Relevantly Professor Coman stated:
Whilst WQSW is receiving treatment in the medical sphere for his diagnosis, to maximise his ongoing functional capacities he requires ongoing support in the following domains:
1. Mobility: WQSW's both gross and fine motor skills are affected, in the context of his craniosynostosis-related symptomatology. He requires ongoing allied health therapy including access to occupational therapists and physiotherapists to maximise his capabilities in terms of motor skills, which are important for self-care and social and scholastic engagement.
2. Communication: WQSW's cerebral palsy, hypotonia, global developmental delay including speech and language delay all have considerable impact on his ability to communicate effectively with his family, carers and peers. He requires access to allied health therapists including speech therapy and occupational therapy to maximise this aspect of his life and improve his day-to-day function. He also requires support via consumables such as communication devices.
3. Social skills: WQSW's diagnosis significantly affects his social interactions which then impacts on learning. He requires ongoing access to allied health and psychology input to maximise his social integration, which is vital for full attainment of his capabilities in both the scholastic environment and for social day-to-day activities.
4. Self-care: Currently WQSW requires significant input from his family to maintain self-care capabilities, above that normally required for a child of his age. He requires appropriate allied health input, support worker hours and consumables to maximise his capabilities with this going forward, for social and scholastic engagement and with a view to improving his functional capacities.[25]
[24] A15.
[25] A15.
Evidence of Dr Adriane Sinclair
Dr Sinclair is a paediatric neurologist. She assessed WQSW in June 2024 and referred to the following diagnoses and difficulties in her report:
· Mild spastic diplegic cerebral palsy;
· ERF-related craniosynostosis;
· periventricular leukomalacia;
· global developmental delay;
· hypotonia;
· feeding difficulties;
· speech and delay;
· poor impulse control.[26]
[26] A23.
Dr Sinclair described WQSW as ‘very routine based and requires 1:1 support’. She also expressed concern that WQSW had early signs of attention deficit hyperactivity disorder (ADHD) with challenging behaviours.[27]
[27] A23.
Dr Sinclair stated that WQSW required a soft food diet due to his chewing and swallowing difficulties.
At the time of her June 2024 assessment Dr Sinclair estimated WQSW’s functioning to be “around a 2-year-old level” despite a chronological age of three years and eight months.
Dr Sinclair recommended ongoing physiotherapy, occupational therapy, speech and language therapy, dietetics as required and also referral to the cerebral palsy clinic for a multidisciplinary assessment. Dr Sinclair also referred to an ADHD assessment at 4‑5 years with the potential for a psychology assessment.[28]
[28] A23.
Evidence of WQSW’s mother ‘M’
M provided written and oral evidence at the hearing. M presented as an honest and credible witness. Her evidence was helpful and persuasive. It was also measured and without exaggeration.
M is also a participant in the scheme.[29] She suffers from a number of physical impairments arising as a consequence of the following conditions:
· Erythromelalgia;
· Left-sided hemiplegia and restricted use of her left arm due to a vaccine-related injury;
· Small Fibre Neuropathy;
· Restless leg syndrome;
· Vertigo;
· Postural Hypotension;
· Postural orthostatic tachycardia syndrome (POTS); and
· Gastro-oesophageal reflux disease (GORD).[30]
[29] Report Russell Pullin; T4; T22.
[30] A4.
M also has a psychosocial disability due to bipolar affective disorder.
As a result of her impairments M referred the Tribunal to some of the following symptoms:
· Intense burning and pain in parts of her body;
· Erythema (marked redness) and increased skin temperature;
· Weakness of her left limb and loss of function;
· Flare-ups of her erythromelalgia;
· Reduced mobility;
· Dietary restrictions.
M described her family at being at ‘breaking point’.[31] She stated that ‘Every minute of every day is a struggle’. Because of her disabilities she simply does not have the physical strength to ‘support’ WQSW. [32] She is incapable of picking WQSW up unless she first gets down to the ground level. She is incapable of running after him, of helping him on play equipment, of supporting him in a bath, of changing his nappy or showering him on her own, and of lifting him in or out of a bed, a bath or a car seat.
[31] A16.
[32] T22.
Understandably M worries about WQSW’s physical safety in the context of her being unable to keep up with him, particularly in the community.
M is required to rest a lot more than other people her age in order to avoid having a flare‑up of her erythromelalgia. From a physical perspective these flare-ups can wipe her out for weeks.[33]
[33] A4.
M explained that historically her husband F was able to assist with parenting however he now has his own health problems. He is barely able to breathe and needs constant rest to preserve his energy.[34]
[34] A4.
M identified WQSW’s following behaviours:
· Self-harming which included head banging, scratching his eyes, pulling hair, biting hands and slamming his fingers in drawers and cupboards;
· Biting, hissing, pinching, spitting and hitting. This includes towards his parents and the family dog;
· Struggling with emotional regulation; and
· Becoming overwhelmed in crowds.
M explained that WQSW has become much harder to care for and manage as he has gotten older. This is because he has become physically larger and has also developed more challenging behaviours.
M also referred to WQSW’s sleep issues due to obstructive sleep apnoea. WQSW is prescribed melatonin and gabapentin. WQSW requires a lot of sensory input throughout the night which often involves M or F placing their hand on him to help him settle and also M picking him up and nursing him.[35] M explained that constant broken sleep impacts upon the stability of her BPAD.
[35] A4.
In her statement dated 9 January 2023 M explained that WQSW was “completely non‑verbal.[36] In her statement dated 16 August 2024 she described caring for WQSW as ‘an all-encompassing, relentless responsibility that profoundly impacts every aspect of my life.’
[36] T22.
M prepared a schedule in which she estimated the time spent on various tasks in relation to parenting WQSW. Summarised, these were as follows:
· 5 hours per day of 1:1 support with feeding;
· 1.75 hours per day of 1:1 ‘support and supervision’ of meal preparation;
· 3 hours and fifteen minutes per day on self-care including toileting;
· 4 hours per day of supervised mobility, stretch and interactive play support;
· 78 hours per week in communication support, which excludes time that WQSW is at daycare or ECDP;
· 78 hours per week of emotional support, which excludes time that WQSW is at daycare or ECDP;
· 37 hours per week in administrative tasks such as ordering or shopping for consumables and attending medical appointments.[37]
[37] A35.
M stated that caring for her 19-year-old son B also requires much of her time due to the nature of his disabilities. This includes reminding B of his self-care activities and keeping track of his sleep hygiene and medication intake.[38]
[38] T22.
M referred to the family’s absence of informal supports. M’s family reside interstate. F’s family reside close by however they are elderly and have their own health issues.[39]
[39] A4.
In her oral evidence M stated that funding for a ‘Hi-Lo bed’ was sought on the basis it was for a dual purpose, sleeping and nappy changes.
WQSW’s current bed is not at the right height for use as a change table. On this basis nappy changes are currently undertaken on the floor of the lounge room with no privacy or dignity afforded to WQSW.
WQSW’s nappy changes are a ‘two-person’ job and require a level of negotiation. They can take between 15 to 45 minutes. WQSW requires constant coaxing to change WQSW’s nappy, despite at times being heavily soiled. M described nappy changing as ‘a fight’. This is because WQSW does not understand why he needs his nappy changed, when he needs to go to the toilet or even when he is heavily soiled. M described both parents as struggling from a physical perspective with this task.
WQSW’s nappies are generally checked every hour with a nappy change every two hours during the day. At night WQSW will wear a nappy to bed and leakproof pants. M estimates 2 to 3 nappy changes per night.
M’s fatigue is such that she requires a wheelchair to mobilise from around 4pm each day. The ability to adjust the height of the Hi-Lo bed will allow her to change WQSW’s nappy when she is in her wheelchair.
M explained that children with cerebral palsy start to develop a level of continence somewhere between five and 13 years of age. Her expectation is that WQSW will require a change table for a considerable period of time. Further, that he would outgrow a paediatric change table and thereafter require an adult change table.
As a participant in the scheme M herself has funding for 50 hours per week for support worker assistance.
M’s 50 hours of support worker assistance is used generally as follows:
a. two hours, twice a week attending hydrotherapy as part of her social participation;
b. three hours per week undertaking household cleaning;
c. six hours per week undertaking meal preparation for M’s lunch and dinner;
d. three hours per week undertaking shopping which includes the preparation of a list, attendance at the supermarket, return to the home and putting the groceries away;
e. assistance with activities of daily living in the morning. M explained that she needs assistance from her support worker to get out of bed each day;
f. Generally once awake M will sit on the side of the bed and wait to get ‘feeling’ in her legs. This is due to her fibromyalgia and peripheral neuropathy; and
g. M’s support worker also helps her get WQSW ready for daycare and ECDP.
Due to her erythromelalgia and neuropathy it takes M between 15 minutes to one hour to get out of bed each morning and into a standing position. On a ‘bad day’ she will simply go back to bed. M estimates she has a ‘bad day’ four days a week.[40]
[40] Transcript page 26-27.
If a ‘bad day’ occurs on a morning when WQSW is to attend daycare or ECDP then M is unable to assist F with getting WQSW ready for daycare or ECDP.
M explained that F will generally get her breakfast. F also prepares breakfast, lunch and dinner for WQSW.
M is unable to do any physical parenting of WQSW. She described only being able to sit on a couch with WQSW in the afternoons to read him a book or spend some time cuddling. M stated ‘Physically I am not able to do any of the physical parenting, apart from when I sit on the lounge and WQSW sits next to me in the afternoons.’[41]
[41] Transcript page 27 lines 31-31.
On Saturdays M will take WQSW to the park with her support worker. Her support worker must run after WQSW to keep him safe while M sits on a bench and watches.
M explained that WQSW becomes overwhelmed when he leaves the family home and enters the community. This is due to the sensory overload that he experiences due to lights and noise. WQSW will frequently ‘take off’ when in the community.
WQSW’s hypotonia affects his mobility and his stability. M explained that WQSW will fumble when he runs and eventually fall. WQSW is unable to climb stairs and he has only just learnt to jump on the spot. He is unable to hop. When he stands, he must lean on something as he does not have the muscle tone to maintain his stability.
M referred to incidents in the community when WQSW will ‘take off’. When F has been with her, he has run after WQSW, but this has had a severe and adverse effect on F’s health. On three or four occasions in the last six months F has been hospitalised in the context of losing his breath when chasing after WQSW.
WQSW attends the ECDP once a week for six hours from 9am until 2pm. He also attends daycare on Monday and Fridays. M tries to undertake her own activities such as hydrotherapy and grocery shopping with her support worker when WQSW is attending either the ECDP or daycare.
M described WQSW as really enjoying ECDP, which she explained was a program funded by the government targeted at children with disabilities to bridge the gap in their development and prepare them for school. WQSW’s access to ECDP of one day a week is the limit of his entitlement.[42]
[42] Transcript page 38 line 31.
In contrast, M referred to the difficulties WQSW experiences at mainstream daycare. M explained that WQSW becomes extremely overwhelmed at daycare. M stated that two days each week at mainstream daycare is the limit of what WQSW is able to tolerate. Historically, attempts to increase the number of daycare days have failed and resulted in the escalation of WQSW’s behaviours.
M stated that WQSW was more settled and relaxed after a day at ECDP. In contrast, after a day at daycare, WQSW will sit in the lounge room, generally for 45 to 60 minutes, with his eyes ‘glazed over’.
F drives WQSW to daycare and ECDP and picks him up at the end of the day. WQSW’s pick‑ups and drop-offs from daycare and ECDP are also a ‘two-person job’ which is usually done by M and F, alternatively by F and B.
M does not have a driver’s licence. She is awaiting a driving assessment with consideration of a modified motor vehicle.
WQSW also has hearing problems and has had a number of operations for grommets. To date, his hearing has been unable to be tested properly due to his sensory issues. M explained that WQSW’s hearing loss impacts particularly when they are in the community. This is because he is affected by a level of muffled background sounds.[43] M explained that when in the community WQSW is unable to hear others calling out to him because of this cluttered background noise. This difficulty is compounded by the fact that WQSW becomes hyper‑focused on things that he notices in the community.
[43] Transcript page 34.
M explained that when in the community WQSW can of course be contained in a pram however she has concerns that this is a form of ‘restrictive practice’.
M explained that at around 3.30pm to 4pm the family starts WQSW’s shower and dinner routine. Showering WQSW requires the combined efforts of M and F. F does the showering while M sits on the floor of the bathroom and ‘coaches’ WQSW along.
M explained that in the evenings around 6pm WQSW will have melatonin medication in his milk to assist with sleep. Once he has been given melatonin his level of screaming and fighting reduces. On a good night WQSW will wake up once, on a bad night he may wake up to eight times. Generally WQSW wakes three times each night. When WQSW wakes during the night F will give him a cuddle while M organises a bottle of milk. Generally WQSW will have two milk bottles per night.
M explained that recently her longstanding support worker of two years had resigned. WQSW’s behaviours had unfortunately strained her relationship with this support worker. M explained that WQSW would spit at this support worker and take a swipe at her. The support worker had also been bitten on occasions when attempting to dry WQSW after swimming. M stated in her oral evidence:
The behaviours have become so bad that I have lost support 10 workers because they can’t – my support worker that I had for two years, she couldn’t handle WQSW’s – sorry. She couldn’t handle WQSW’s behaviours anymore. Him hitting her, biting her - - -[44]
[44] Transcript page 41 lines 10-14.
M emphasised that WQSW required his own support worker with a skill set suited to his individual needs. She identified the differences between a support worker suited to her needs, which involved the complex interplay between her physical disabilities and her mental illness. In contrast, WQSW required a support worker with a skill set in respect of ASD, cerebral palsy, paediatric feeding and behavioural issues.
At the time of the hearing M had not been able to find a steady and reliable support worker for herself. M stated that support workers are reluctant to ‘sign up’ to support her because of the risks associated with WQSW. In this regard M explained that her support worker’s responsibility was to her and not to WQSW. Notwithstanding, if WQSW ‘took off’ whilst in the community her ‘natural instinct’ was to request her support worker to chase after WQSW and secure his safety. This type of request compromises her support worker’s responsibility to her and leaves M vulnerable and at risk on the basis that she is unassisted by her support worker. Ultimately it means that M’s needs are not met by her support worker who is instead obliged to assist with WQSW’s impulsive behaviours.
In relation to funding for a dietician M explained that WQSW suffers from chronic constipation, and also has trouble chewing food due to low muscle tone as a result of hypotonia. WQSW requires a ‘fork and mash’ diet. This means that he is only able to digest food that can be mashed by a fork to a certain consistency. WQSW will only eat food from her bowl.
WQSW requires supervision for all meals. M has trialled WQSW with strips of food however he will generally hold strips of food in the back of his mouth, attempt to chew them and subsequently choke.
M explained that WQSW needs to be enticed to eat and drink. M seeks regular review of WQSW by a dietician to look at what deficiencies WQSW has in his diet and to develop strategies whereby new foods can be introduced to supplement any nutritional deficiencies.
Evidence of WQSW’s father ‘F’
WQSW’s father ‘F’ provided a statement[45] to the Tribunal in addition to oral evidence at the hearing. Likewise I found his evidence honest, truthful, measured and without exaggeration.
[45] A36.
F suffers from hypersensitivity pneumonia, an immune system disorder that affects his lungs.[46] F also suffers from myocarditis and chronic small airways disease. F is currently awaiting a review by a neurologist and a haematologist in relation to a diagnosis of fibre neuropathy.
[46] T9, A8.
F is affected by symptoms including shortness of breath, fatigue, dizziness, wheezing, headaches, emphysema, breathlessness, fatigue, sweats, muscle weakness and nerve pain in his feet and hands.
F explained that these symptoms have reduced his capacity to care for WQSW and have contributed to an overwhelming strain on the family.[47]
[47] A36.
As a consequence of this illness he has trouble breathing and is no longer able to function as he previously did.
F’s breathlessness is 24 hours a day. It affects his capacity to ‘keep up’ with WQSW. His nerve pain causes stabbing blunt shots into both his feet and hands. His emphysema makes him feel dizzy. F has seen multiple specialists in respect of his symptoms and trialled multiple medications. In the last 12 months he has received hospital treatment at least eight times.
F is not a participant in the scheme. In his oral evidence he explained that had not applied for access to the scheme as he did not think it was worth the stress and the ‘emotional trauma’.
F’s parents live close by however they are elderly. His father is in his 80’s and has had a stroke. His mother is in her late 70’s and is awaiting bilateral shoulder operations. F’s brother lives with his parents. His brother works full-time and also cares for his parents. F explained it was not feasible to leave WQSW with his parents for any period of time as they would be unable to handle his behaviours. WQSW has a history of lashing out, hitting, spitting and kicking and he has reacted in that way towards his grandparents in the past.
F explained that the last occasion he and his wife went out on their own for dinner was approximately 4 years ago.
F described WQSW as very ‘hands on’. He stated that he would not trust a ‘babysitter’ to mind WQSW unless the babysitter had specific training. He explained that WQSW’s brother B was not ‘an option’ as a carer for WQSW. This was on the basis that B had his own medical issues and worked very hard just to organise and manage his own life.
F explained that WQSW needed supervision and interaction 100% of the time to ensure that he did not decide to ‘run off’. He explained that realistically B is only able to keep ‘an eye’ on WQSW for very short periods of time and only on the basis that F is close by. F explained that B does not fully watch WQSW and becomes easily distracted from this as a task and responsibility.
F emphasised the need for adult supervision of WQSW whilst eating to ensure that he did not choke.
F also stated that WQSW woke between 2 to 5 times each night and these interruptions to his sleep had affected his mental health, physical wellbeing and ability to function during the day.
F considers that a Hi-Lo bed would provide a safe and dignified space for WQSW’s nappy changes. Currently nappy changes occur on the floor of the main living area. F described the process of WQSW’s nappy changes as involving a level of ‘fighting’ to the extent that at times WQSW will choke.
F is generally responsible for the preparation of most of the family’s food. He explained WQSW’s difficulty in chewing and swallowing food and his efforts to prepare and provide different food options for WQSW that were both digestible and nutritious.
F normally attends WQSW’s speech therapy and occupational therapy appointments. He has sought and received advice from WQSW’s occupational therapist and speech therapist in relation to suitable foods for WQSW. This advice has helped, however sometimes WQSW just won’t eat. F is hopeful that a dietician, fully trained in nutrition and strategies, will identify foods that are healthy for WQSW and will not cause choking.
In relation to a continence therapist F described the need to address WQSW’s unique needs and to develop WQSW’s understanding of the feeling of needing to go to the toilet.
F gave detailed evidence of his daily/weekly routine. His evidence described little time to himself in the context of providing informal support of his wife, WQSW and B. F described as particularly labour-intensive the period of time when WQSW returns home from daycare or ECDP until his bedtime. He referred to bathing and feeding as a joint task for himself and M.
F explained that WQSW wakes up a minimum of two times each night and on a bad night up to six times. When WQSW wakes during the night he and M are both required to manage his needs which include making him a bottle, changing his nappy and settling him down. F described WQSW as becoming very distraught and heightened during the night with the ability to ‘scream the house down’.
F explained that mainstream daycare ‘takes it out of’ WQSW and makes the evening time thereafter ‘impossible’. He was neither happy, engaged nor interactive. In contrast, WQSW was described as a ‘totally different child’ in the afternoon following ECDP. Following ECDP, he is happy and his parents were easily able to establish a ‘one-on-one connection’.
In relation to the request for a support worker to access the community F described the primary concern being that WQSW will ‘run off’ and risk harm to himself.
F stated that leaving the family home with WQSW was a ‘two-person job’ with the requirement to anticipate WQSW’s every move including his impulses to run off and his constant demands.
Evidence in respect of WQSW’s brother ‘B’
WQSW’s brother B suffers from autism, attention deficit hyperactivity disorder (ADHD) and chronic post-traumatic stress disorder.[48] B and is also a participant in the scheme.
[48] T11, T22.
The Tribunal was provided with an impact statement prepared on behalf of B with the assistance from M and F and B’s support worker.[49] B did not give oral evidence at the hearing. M and F however both gave oral evidence in respect of B.
[49] A33.
Currently B works in a gym four hours a week. He is engaged with a disability service and attempting to obtain more employment. He attends occupational therapy one hour each week, with an employment consultant two hours each week, physiotherapy one hour each week and with a psychologist one hour each week.
B has assistance from a support worker three times a week for four hours on each occasion. His support worker assists him with interactions within the community and in relation to the repetition of routine tasks such as mowing the lawn, washing the car and problem‑solving. One night a week B will cook dinner for the family. When asked whether B could assist with the care of WQSW, M advised that B could barely look after his own needs let alone the needs of WQSW.
B does not have the capacity to supervise WQSW in any meaningful or appropriate manner. Multiple attempts have been made, with the assistance of B’s support worker, to teach him how to assist the family in the supervision of WQSW. Notwithstanding, B struggles to understand how to take care of another human being. This is because B does not see the physical hazards around WQSW.
Evidence of Hayley Mckenzie
Ms McKenzie is a speech pathologist with the Child Development Service. She assessed WQSW in July 2023 and her report was provided to the Tribunal.
Ms McKenzie stated that her assessment supported a diagnosis of GDD but that WQSW did not meet the criteria for ASD. She explained that WQSW’s social skills and play difficulties are in keeping with his cognitive and communication delays.[50]
[50] A28.
Evidence of Rebecca Smith
Ms Smith is an occupational therapist. She assessed WQSW in October 2022 and provided a report to the Tribunal.[51] In her report Ms Smith identified that WQSW:
· has difficulties with self-regulation, which has a significant impact on his participation and engagement in day-to-day activities;
· has sensitivities to some auditory, visual, movement and oral sensory inputs. These sensitivities include bright lights, certain clothing, and certain surfaces such as grass, sand, carpet or tiles;
· becomes overwhelmed by sounds in some environments to the extent he can completely withdraw from an activity or become easily upset; and
· has difficulties with balance and coordination.
[51] T13.
Evidence of Lifespan Therapies
A number of reports were provided to the Tribunal by Lifespan Therapies. These reports were jointly authored by a combination of various allied health professionals including Johanna Gaugl, physiotherapist, Emma Joss, occupational therapist, Courtney Haim, speech pathologist and Elizabeth Donnellan, physiotherapist [52]
[52] A3, A12, A16, A20.
Included in these reports was a report dated 15 March 2023 which recommended the following as supports for WQSW:
· 8 hours per week of 1:1 in home support to assist with daily living;
· 8 hours per week of 1:1 out of home support to assist with social and community participation.[53]
[53] A3.
In a further report dated 6 June 2023 reference was made to WQSW’s progress with his therapy supports and also his ongoing needs.[54] Relevantly this report referred to the following:
[54] A12.
· WQSW was able to walk independently however fatigued quickly;
· That WQSW attempts to run however does not have the ability to stop and start without falling over;
· WQSW cannot jump, walk on a balance beam or run on even surfaces;
· He cannot balance on one leg for a brief time, including for activities such as nappy changes;
· He is unable to assist in self-care tasks and lies down for dressing;
· He has delayed oral motor skills and has difficulty in eating age-appropriate food;
· He requires supervision at all snack and mealtimes to ensure he takes safe, small bites, and chews appropriately before swallowing in order to minimise the risk of choking;
· As a consequence of his inability to self-regulate WQSW experiences substantial behavioural outbursts of biting, hitting and screaming;
· He is easily overwhelmed with too much noise or visual input;
· That the support worker hours previously recommended in the report dated 15 March 2023 were required to enhance WQSW’s participation in daily care tasks and engagement in the community.[55]
[55] A12.
A further report in respect of WQSW’s functional capacity dated 7 September 2023 was also provided to the Tribunal.[56] In that report WQSW was described as having significant impairments as a result of his cerebral palsy. The following relevant commentary was provided:
WQSW has had some disruptions during the progression towards his goal achievement, due to reported carer burn out from his Mum and inability to ensure his participation in all recommended therapies.
…………………………………………………….
The daycare setting is not equipped with the resources, staff, equipment, time or
finances to facilitate the extensive supports that WQSW needs and formal supports are necessary to allow WQSW to continue progressing with his goals and improving the carryover of new skills he is learning into his everyday routines.
…………………………………………………..
……….the demand on WQSW’s family, due to his diagnosis and current functional and participation restrictions, are significantly higher than to be expected for a child of WQSW’s age.
WQSW’s self-care skills are more consistent with those of a 18-24-month old child as he has no toileting awareness (e.g., if he has a wet nappy), does not sit on the toilet and has no daytime toileting control. As a result, WQSW still wears nappies and requires them to be changed by his Mum, alongside Mum’s support workers. Due to WQSW’s size, these tasks are being completed on the floor, which is not safe for his mother, who has a physical disability, or for support workers, thus acting as a safety risk.
The hours of demands placed on M and F as WQSW’s only informal carers are extensive and beyond those expected for a parent. Because WQSW needs support in every aspect of his daily life, the time allowed for them to spend focusing on practice, repetition and exposure to the self-care tasks that he needs to work on is limited.[57]
[56] A20.
[57] A20.
In this report reference was again made to WQSW’s ongoing motor difficulties, sensory seeking behaviours, reduced adaptive and social skills, communication challenges and his minimal independence in self-care tasks. The recommendation for support in daily tasks of 16 hours per week, in the composition of 8 hours in the home and 8 hours in the community, was again confirmed.[58]
[58] A20.
Evidence of Emma Joss
Ms Joss provided a number of reports to the Tribunal in an individual capacity.[59]
[59] A14, A16, A32.
She conducted functional capacity assessments in September and October 2023 to assess the functional impact of WQSW’s impairments on his ability to participate in daily life.[60]
[60] A14, A16.
At the time of the October 2023 assessment WQSW was three years of age. Ms Joss stated that WQSW’s skill level in relation to mobility, self-care, communication, social interaction, play skills, coping skills and emotional regulation, community access, learning and self‑management equated to an approximate level of 13 months of age.
In her reports Ms Joss referred to the following issues:
· WQSW had no safety awareness and did not learn from pain or injury;
· His delayed cognitive skills and sensory processing challenges resulted in his inability to safely navigate or cope within his environments;
· He required the presence of 2 adults to meet his care needs and ensure his engagement and safety when accessing the community;
· He experienced extreme levels of anxiety when accessing the community and becomes overwhelmed and overstimulated, requiring 2 adults to support him to calm down;
· He takes extreme amounts of time to walk to the park and requires 2 adults to hold his hands to do so;
· He has a reduced general awareness, poor balance, low muscle tone and coordination resulting in extreme difficultly navigating the community without risk of injury or heightened anxiety;
· He has extreme difficulties in following basic instructions;
· He becomes quickly fatigued with tasks that require fine motor skills;
· He will cry, hit, kick, throw objects and engage in self-harm behaviours including head banging and biting when upset;
· He is unable to complete, or help an adult to complete, self-care tasks such as bathing, dressing, eating;
· He will often become distressed and aggressive when showering due to difficulties in processing tactile sensory input;
· He requires significant support and guidance for all toileting steps;
· He is unable to safely climb into and out of a car seat or his bed;
· He is unable to participate in age-appropriate eating and feeding tasks due to his cognitive, physical and sensory processing challenges;
· He has difficulty chewing food and can gag on food; and
· He is unable to wipe or blow his nose without distress.[61]
[61] A14, A16.
Ms Joss stated:
WQSW’s disabilities are severely limiting his functional capacity to participate in roles and tasks at, or near, an age-appropriate level. WQSW requires support at all times of his day, across the completion of all tasks of daily living, to ensure his safety and participate in desired activities is supported. WQSW is missing key milestones for his age and requires core and capacity building supports to develop his functional ability to complete these skills, as well as have safe and supervised access to community engagement to allow for social interaction opportunities.[62]
[62] A14.
Ms Joss explained that WQSW’s multiple diagnoses had caused extreme delays in the development of his gross motor, fine motor, speech, social, play and self-care skills.[63]
[63] A16.
Ms Joss also stated that WQSW’s:
disability and high support needs are leading to extensive carer burnout and burden on his mother, as his primary informal carer, impacting her ability to continually fulfill WQSW’s needs, as well as maintaining the rest of their parent and household duties. Both of WQSW's parents live with physical and psychosocial disabilities, which further impact their ability to meet WQSW's extensive care needs whilst simultaneously caring for M’s other child living with disabilities, attending to their own disability needs and challenges and fulfilling their daily roles. This expectation to meet WQSW's extensive care needs, alongside their other roles, is both unrealistic and unsustainable for his parents and is resulting in extreme carer burnout and severe decline in both of their mental health and wellbeing and physical challenges.[64]
[64] A16.
In making reference to F’s medical conditions, M’s physical and psychosocial disabilities and B’s diagnoses, Ms Joss stated ‘WQSW’s household is far from a typical family and the care needs, alongside essential needs for support are severe.’[65]
[65] A16.
Ms Joss also stressed WQSW’s need for close supervision to manage the risk of him engaging in dangerous behaviours. She stated:
WQSW mother is required to have at least one other adult with her at all times to be able to manage WQSW's care needs, particularly when accessing the community or social environments due to his inabilities to follow instructions, defiant behaviours to go in the pram without extreme meltdowns but inability to walk swiftly due to physical impairment, lack of insight into safety and extremely short attention span. Furthermore, he requires two adults at all times to ensure his safety and participation in completion of all self-care tasks, play and leisure and activities of daily living due to behavioural, emotional, and sensory challenges. This level of care and support is out of the expected level of a typical child of WQSW's age. Due to the fact that most often he requires the presence of two adults, this is extremely draining for his parents, as it is not always possible for two adults to be present. As a result, WQSW's opportunity to access the community and participate in social environments is severely limited, thus demonstrating the need for carer support.
In relation to daycare being an option for WQSW Ms Joss stated:
Daycare is for education and learning enrichment, whereas in-home support worker are to support development of core foundational daily living skills, such as dressing, toileting, bathing, grooming, eating foods and feeding self independently. These skills are not targeted or taught functionally in a daycare environment and are also out of the role of an educator, thus demonstrating the need for in home supports.
Ms Joss also assessed M using the Kingston Caregiver Stress Scale and the Zarit Burden interview. These assessments indicated that M was experiencing extreme levels of stress, and was feeling overwhelmed, overworked and burnt out due to WQSW’s care level needs. She stated that WQSW’s needs exceed those of a typically developing 2-year-old child and that his parents “are forced to engage in exceeding amounts of ‘carer responsibility’ that is outside the normal realm of typical parent responsibility and ‘job’.”[66]
[66] A14.
Ms Joss emphasised that WQSW’s needs exceeded those of a typical parental role and placed tremendous strain and stress particularly upon M as the primary informal caregiver.
In addition to this level of parental responsibility Ms Joss identified that WQSW’s parents must manage their own physical and psychosocial disabilities as well as those of WQSW’s brother. Her opinion was that this arrangement was neither sustainable nor realistic. Her opinion was also that WQSW’s needs primarily revolved around the requirement for physical support.
Having conducted a Care and Needs Scale (CANS) assessment Ms Joss identified that WQSW displayed a ‘level 7’ for needs indicating that WQSW requires supervision 24 hours a day ‘due to maladaptive and dangerous behaviours and severe delays in his cognitive, social, physical and communication skills because of his disabilities.’
Ms Joss made the following recommendations in respect of WQSW:
· 1:1 formal assistance with daily living needs support up to 20 hours per week to increase WQSW’s functional self-care skills, as well as assist his parents with the additional demands of his care. In this regard Ms Joss recommended 4 hours per day 3 days per week (when WQSW was not at daycare or ECDP) and 2 hours per day on the weekend;
· 8 hours per week of 1:1 formal support work to safely access the community and participate in social activities that are necessary for WQSW to attend to achieve his desired goals and support an increase in his overall development;
· Short term accommodation and assistance (including respite care) of WQSW of 7 days a year, with WQSW being supported by another carer so that his parents can have a break from their usual caring responsibilities;
· Monthly sessions of one hour with a dietician to receive advice on his diet in the context of a lack of jaw strength and an inability to chew and tolerate various textures of food. She stated that dietician services will provide WQSW’s parents with advice on how to best support WQSW’s diet and eating challenges so as to ensure that he is consuming sufficient nutrients that are required for his development.[67]
[67] A14.
On 2 August 2024 Ms Joss conducted an Assistive Technology Assessment of WQSW.[68] Her assessment identified three options in respect of WQSW’s sleeping and nappy changing requirements.
[68] A32.
Ms Joss identified a ‘standard bed’ as a first option. This first option she contended was unsuitable for the following reasons:
· Its height cannot be adjusted. WQSW cannot independently transfer in and out of a standard bed. WQSW is likely to roll out of a standard bed, or attempt to jump off the bed due to his lack of insight into safety;
· Height adjustment was required to ensure that nappy changing could be undertaken at an appropriate height so as to reduce the risk of injury to WQSW’s carers;
· It does not have any tilt features. This places WQSW at risk of restricted breathing and airway compromise at night due to his laryngomalacia. Laryngomalacia is a congenital softening of the tissues of the larynx (voice box) above the vocal cords. It is also known as “floppy airway’;
· The bedframe and associated compartments are not waterproof, and therefore not appropriate to be used as a changing table.
As a second option Ms Joss referred to the Kingsdene change table, adult size, at a cost of $3,103.00. She considered this option as unsuitable for the following reasons:
· Whilst being height adjustable it has a ‘single purpose’ as a nappy change table;
· It is not multipurpose and cannot be used as a bed for sleeping and therefore does not represent value for money; and
· It is a large piece of equipment and a bed would not fit alongside the Kingsdene change table in WQSW’s bedroom.
A third option identified by Ms Joss was the Solace Sleep Floorline bed at a cost of $7,778.00. This option was recommended by Ms Joss for the following reasons:
· It is multipurpose as both a bed and a change table;
· It can be tilted at the head end to accommodate WQSW’s reflux and laryngomalacia;
· Its height can be adjusted. WQSW can independently access the bed for both sleep and nappy changes;
· It can be raised to an appropriate height for carers to change WQSW’s nappies;
· The bed frame is antibacterial and waterproof; and
· The mattress is waterproof and therefore suitable for nappy changes.[69]
[69] A32.
Evidence of Gabby Smith
Ms Smith is an occupational therapist with 10 years’ experience in paediatric occupational therapy. She assessed WQSW and provided three reports to the Tribunal.[70] She also provided oral evidence at the hearing. I found Ms Smith’s oral evidence to be honest and truthful and in accordance with her obligations as an expert witness.
[70] R2, R4, R7.
Ms Smith assessed WQSW in October 2023 via Microsoft Teams. In her report dated 6 November 2023 she did not recommend support worker assistance for WQSW. Instead, Ms Smith recommended a review of WQSW’s parents’ support worker assistance, stating:
Due to WSQW’s parents both having diagnosed disabilities, it is recommended that a review of WQSW’s parents’ support worker assistance hours are reviewed to allow for them to receive the supports they require to be able to fulfill their parental responsibility for WQSW. A support worker is not recommended for WQSW to replace the parental role that would otherwise be fulfilled by WQSW’s parents, had they been fully capable and not impacted by their disabilities.
Ms Smith recommended a traditional model of service delivery of therapy support whereby a team of allied health professionals work collaboratively and share the responsibilities of evaluating, planning and implementing early intervention services for WQSW. She proposed this team be comprised of occupational therapists, physiotherapists, speech therapists and occupational therapy assistants.
Ms Smith also recommended a collaborative approach by WQSW’s parents, parents’ support workers, educators at daycare and allied health team.[71]
[71] R2.
Her opinion is that this type of approach will build WQSW’s functional capacity and also the knowledge base of those who support WQSW to carry on all strategies, approaches and supports confidently on a daily basis. She considered that, in time, this approach will lead to a decrease in WQSW’s future therapy needs, on the basis that his support team will learn to assist him at home, in the community and at daycare.
Summarised, Ms Smith’s recommended approach was as follows:
· Fortnightly direct intervention from an occupational therapist to deliver strategies and support in the areas of adaptive behaviours, cognitive skills, fine motor skills and social emotional skills. Occupational therapy support was recommended to be conducted in the clinic, at home and in daycare settings. Ms Smith stated that therapy in a clinic setting was the most controlled however it did not allow for the teaching of skills in a functional context and the transference of skills to WQSW to build participation and engagement. Notwithstanding, she acknowledged the limitations of therapy in a daycare or home setting, in the context of inadequate training of day staff, lack of resources and reduced parental capacity. Ms Smith recommended 26 hours over twelve months in addition to 4 hours of additional report writing as an appropriate level of occupational therapy support;
· Weekly support from an occupational therapy ‘assistant’ to carry out the written plans of the occupational therapist and reinforce explicitly taught strategies. Ms Smith identified 52 hours over twelve months as an appropriate level of occupational therapy assistance support;
· Weekly speech therapy support of 52 hours over twelve months in addition to 4 hours of additional report writing;
· Fortnightly physiotherapy, conducted in a clinic setting, of 26 hours over twelve months in addition to 4 hours of additional report writing;
· Therapy interventions sessions for individuals supporting WQSW including his parents, educators and parents’ support workers. This recommendation was on the basis that by upskilling these individuals WQSW can engage in incidental learning opportunities and apply strategies more frequently between formal therapy sessions. Ms Smith considered that this will reduce the need for ongoing intensive occupational therapy in the future and build WQSW’s functional capacity;
· When eligible, WQSW should attend ECDP to assist with learning and applying strategies in a learning context with similar aged peers. Ms Smith stated ECDP is for 5 hours each week, running in the school terms, and that this program is a state government funded support.
The Agency does not contend that support worker funding is not an NDIS support for the purposes of s10 of the NDIS Act. Nor does it contend that it is more appropriately funded or provided through other general systems of service delivery or support services.[113]
[113] Refer para [263] – [264].
Having considered the NDIS Supports Transitional Rules 2024 I am satisfied that funding for support worker assistance is a support contemplated by items 5 and 14 in Schedule 1 as being an ‘NDIS Support’ for the purposes of section 10 of the NDIS Act.
Section 34(1)(f) of the NDIS Act is satisfied.
Conclusion
In summary I have concluded that 16 hours per week of support worker assistance for WQSW is a reasonable and necessary support for the purposes of WQSW’s Statement of Participant’s supports.
OVERNIGHT RESPITE
The respite sought on behalf of WQSW is comprised of two overnight sleepover shifts (non‑active) per week by a support worker. It is proposed that the respite support worker would be responsible for attending to WQSW throughout the night for feeding, nappy changes and sleep apnoea.
M stated that ‘This is being requested as a form of on-going in-home respite for WQSW’s primary carers’.[114] In her oral evidence M also referred the Tribunal to a comment by her psychologist who stated ‘If I don’t do something soon, I will end up institutionalised’.[115]
[114] Applicant’s submissions dated 25 September 2024 page 7.
[115] Transcript page 78 line 26.
M described the nights as being ‘overwhelming’ resulting significant parental burnout. She stated:
Overnight support is critical, not just for our well-being, but for WQSW’s development. With this help, we can ensure that WQSW has the safety, comfort, and care he needs during the night while giving us the opportunity to recharge and be better parents during the day. Right now, we are operating on empty, and without this support, we fear we won’t be able to provide for WQSW’s growing needs as he gets older and his condition progresses.[116]
[116] Applicant’s submissions dated 25 September 2024.
The Agency contends that overnight ‘respite’ is ‘focused on benefitting those other than the participant’ and that this is not the focus of the use of scheme funds.
The Agency does concede however ‘that does not mean that respite is not potentially fundable under the NDIS and the Agency does not doubt that respite for a participant’s parents can have (indirect) benefits for a participant that potentially fall within the scope and ambit of the scheme.’[117]
[117] Respondent’s submissions 26 September 2024.
In making this concession the Agency submits that the conferral of an indirect benefit on a participant is not, of itself, a sufficient basis for a support to be a reasonable and necessary support. The Agency contends that integral to the financial sustainability of the scheme are two requirements. Firstly, that the support be an ‘optimal’ support in terms of achieving a participant’s goal and building a participant’s independence and capacities. Secondly, that the support be ‘optimal’ from the perspective of the use of NDIS funds. This submission is persuasive.
Section 4 of the NDIS Act sets out the general principles that guides ‘actions’ under the NDIS Act. As a mandatory consideration[118] s 4(17) of the NDIS Act provides as follows:
It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to the need to ensure the financial sustainability of the National Disability Insurance Scheme.
These actions include approving a participant plan for the purposes of s 33(2) of the NDIS Act.[119]
[118] McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [107].
[119] McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [107].
The Supports Rules also provide, as a mandatory consideration of whether a support is reasonable and necessary for the purpose of approving a participant plan, the financial sustainability of the Act. The relevant rules provide as follows:
Rule 1.3. In giving effect to these objects, regard is to be had to the need to ensure the financial sustainability of the NDIS
Rule 2.5. In administering the NDIS and in approving each plan the CEO must have regard to objects and principles of the Act including the need to ensure the financial sustainability of the NDIS and the principles relating to plans
In McGarrigle[120] Mortimer J also made the following comments:
There is no doubt that consideration of the financial sustainability of the NDIS is given an express place in the operation of the legislative scheme. The applicant accepts that s 4(17) of the Act applies to the Tribunal and this concession was correctly made. The Tribunal performs a review function “under” the Act: see s 103. Section 3(3)(b) is to similar effect, and understanding how the two provisions operate together may be a matter of hierarchy. Although it may not matter to the outcome of these grounds of appeal, it seems to me that s 3(3) is the lead provision, in the sense that by its language and context it is intended to be applied in all circumstances where it is necessary to “give effect to the objects” of the Act. Nevertheless s 4(17)(b) relevantly involves a mandatory consideration which must be taken into account by the Tribunal (and by the CEO and delegate) in approving a participant plan for the purposes of s 33(2) of the Act. If there was any doubt about this, r 2.5 of the Rules provides:
In administering the NDIS and in approving each plan the CEO must have regard to objects and principles of the Act including the need to ensure the financial sustainability of the NDIS and the principles relating to plans.
[120] McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [107].
In respect of the need to ensure the financial sustainability of the scheme, I am persuaded by the commentary of Deputy President Constance in BIJD v National Disability Insurance Agency of the need to determine as a first task the ‘primary purpose’ of the support’. [121]
[121] [2018] AATA 2971 at [40]–[41], Fear and National Disability Insurance Agency [2015] AATA 706.
DP Constance helpfully explained that this task requires consideration of the following three questions:
· What is the primary purpose of the support?
· Does the primary purpose of the support, so determined, meet the general requirements of the legislation of a reasonable and necessary support, for example, does it relate to the participant’s disability?
· If the support meets those general requirements, does it meet the specific criteria for eligibility set out in s 34(1)?[122]
[122] BIJD v National Disability Insurance Agency [2018] AATA 2971 at [41].
Whilst I accept that overnight respite relates to WQSW’s disability, I have formed the view that the primary purpose of overnight respite is for the benefit of WQSW’s parents. This is not a criticism of WQSW’s parents. They are understandably affected by significant level carer strain and fatigue. Respite will provide them with uninterrupted sleep two nights of the week by not having to attend to WQSW’s needs.
I accept also that this respite will provide WQSW with a ‘secondary benefit’. This secondary benefit is that his parents will be better rested on two days of the week and have more energy and patience to parent him on these days.
I am not however satisfied that the level of the secondary benefit which WQSW receives is to a degree or extent that would displace the requirement for serious consideration of the need to ensure the financial sustainability of the scheme.
The primary role of a respite support worker would be to undertake feeding and settling of WQSW throughout the night and change his nappy as required. There is no evidence to suggest that by a support worker performing these tasks throughout the night WQSW will be assisted to pursue his goals, objectives and aspirations in accordance with s34(1)(a) of the NDIS Act as a mandatory requirement, nor is there evidence that respite will assist WQSW with his independence and capacities.
I consider attending to a four-year-old child throughout the night to be within the scope of parental duties for many parents, even those with a child without a disability. I have also taken into account that WQSW’s parents will receive a level of respite on account of the funding of support worker assistance as referred to in [236]. On this basis I do not consider that overnight respite in these circumstances is a reasonable and necessary support for WQSW.
Conclusion
In summary I have concluded that the funding of two nights each week for respite is not a reasonable and necessary support for the purposes of WQSW’s Statement of Participant’s supports.
DIETICIAN
WQSW seeks funding for 12 hours per annum of dietician services, comprising of monthly sessions. The purpose of these services is in the context of WQSW’s oral‑motor dysfunction, low muscle tone and ASD.
M contends that professional advice from a dietician will enable identification of nutritious foods that WQSW can safely chew and swallow without gagging or choking. Further, that in the absence of this support WQSW is at risk of nutritional compromise and deficiencies, and also constipation.
In seeking this support M refers to the following:
· WQSW still drinks stage III infant formula as part of his diet and has an intolerance to dairy and soy products;
· WQSW’s speech therapist has given advice in respect of feeding which includes how to chew and how not to choke. WQSW’s speech therapist does not however provide nutritional advice;
· WQSW’s occupational therapist Emma Joss also does not provide nutritional advice; and
· WQSW has attended a feeding clinic who have suggested that he seek dietitian services in relation to his ‘nutritional’ needs.
M also explained that historically a feeding clinic assisted WQSW in respect of ‘the way he eats’ and his ability to feed functionally. It did not however provide any advice into ‘what’ WQSW could and should eat.
M also referred to a historical iron deficiency, explaining that review by a gastroenterologist also recommended that advice from a dietician be obtained.
Previously WQSW was having monthly reviews by a private dietician who was providing meal plans for WQSW based on his functional capacity at that given time. M explained that this engagement ceased in July 2023 as the family was no longer able to privately fund this service.
M’s evidence is that ‘The waitlists are too long’ for a dietician.[123] M explained than WQSW is on a ‘waitlist’ for services, which include dietician services, at the Royal Children’s Hospital. She has been advised that no estimate can be provided on when WQSW can expect to be seen due to a very extensive waitlist.
[123] Transcript Day 1 page 59 line 14-20.
The Agency’s contention in respect of this support relates to s34(1)(f) of the NDIS Act.[124]
[124] Respondent’s closing submissions 26 September 2024 at [136].
Item 16 of Schedule 1 of the NDIS Supports Transitional Rules provides that the following are ‘NDIS supports’ for the purposes of section 10 of the NDIS Act (Tribunal emphasis):
Health supports that relate to the functional impact of a participant’s disability.
This includes the following:
(a) supports, services and assistive products to manage dysphagia, diabetes, continence, wound and pressure care, respiration, nutrition, podiatry and foot care, and seizures;
Despite the inclusion of nutrition services under item 16 of Schedule 1 to the NDIS Supports Transitional Rules, the Agency refers to section 7 of the Amending Act which provides as follows:
Requirement for supports to be most appropriately funded or provided through the National Disability Insurance Scheme
(1)This section applies in relation to a statement of participant supports included in an old framework plan for a participant if the statement is approved or varied during the period:
(a) starting on the commencement of Schedule 1 to the amending Act; and
(b) ending immediately before the commencement of the first National Disability Insurance Scheme rules made for the purposes of paragraph 35(4)(d) of the NDIS Act (as added by Schedule 1 to the amending Act).
(2)For the purpose of specifying in the statement the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of the matter mentioned in subsection (3) in relation to the funding or provision of each such support, in addition to the matters of which the CEO must be satisfied as mentioned in subsection 34(1) of the NDIS Act, as in force on and after the commencement of Schedule 1 to the amending Act.
(3)The matter of which the CEO must be satisfied is that 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:
(a) as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability
…………………………………………...
Section 7 of the NDIS Supports Transitional Rules thus requires that until further rules are made[125] the Tribunal must also be satisfied that the support is most appropriately funded or provided through the scheme, and not more appropriately funded or provided through other general systems of service delivery or support services. (Tribunal emphasis)
[125] S35(4)(d) of the NDIS Act.
The Agency also refers to Rules 7.5(b) and 7.5(c)(i) of the Supports Rules which provide as follows:
7.5The NDIS will not be responsible for:
……………………………………………..
(b) other activities that aim to improve the health status of Australians, including general practitioner services, medical specialist services, dental care, nursing, allied health services (including acute and post-acute services), preventive health, care in public and private hospitals and pharmaceuticals or other universal entitlements; or
(c) funding time-limited, goal-oriented services and therapies:
(i)where the predominant purpose is treatment directly related to the person’s health status; or
………………………………….
I accept that the services of a dietician are available through the public health system. The issue is however whether dietician services are ‘most appropriately’ funded or provided through the scheme, and not more appropriately funded or provided through the public health system.
This test of ‘appropriateness’ requires a comparative assessment.
I am satisfied that dietician services are most appropriately funded through the scheme for the following reasons:
· WQSW, as a child, is in an early and important developmental stage;
· WQSW has significant health conditions. He is at risk of nutritional compromise and suffers from chronic constipation;
· It is important that WQSW have access to the services of a dietician immediately and as a priority;
· Dietician services are infinitely more immediately available to WQSW under the scheme;
· Dietician services are unlikely to be available for WQSW in the immediate future and in this regard have not recently been available for WQSW at all;
· The benefits of a nutritious diet will be of significant benefit to WQSW’s development;
· Any detriment to WQSW’s nutrition will further compound WQSW’s health, wellbeing and development progress; and
· Mainstream dietitian services in the public health system are not suitable for WQSW as they are unable to be accessed within this critical developmental period.
I am also satisfied that the services of a dietician will assist WQSW with his goal of being able to feed safely and expand his oro-motor skills to eat solid foods.[126] Being able to eat in a typical manner with his family at shared mealtimes is an important aspect of socialisation especially for a child. I am satisfied that the services of a dietician will assist WQSW’s social participation.[127]
[126] S34(1)(a) NDIS Act.
[127] S34(1)(b) NDIS Act.
No evidence was provided to persuade me that there exists another avenue for WQSW to obtain professional nutritional advice which represented better value for money.[128]
[128] S34(1)(c) NDIS Act.
In relation to the requirement that this support is or is likely to be effective and beneficial having regard to current good practice I am persuaded by the opinion of Ms Gentile. Ms Gentile’s opinion is that engagement with a dietician will ensure that WQSW optimises his nutrition and minimises his nutritional deficiencies. This will also promote better gut function for WQSW.[129] In the context of WQSW’s chronic constipation this is also a particularly relevant consideration.[130]
[129] A18.
[130] S34(1)(d) NDIS Act.
Based on the evidence of both M and F I am satisfied that they have done all that is reasonably possible to explore, consider and experiment with different food options for WQSW.[131]
[131] S34(1)(e) NDIS Act.
WQSW’s impairment includes difficulties with chewing and swallowing foods. These impairments limit the types of foods that WQSW can eat and fluids that he can drink. This is further compounded by his autistic traits relating to the texture of food.
WQSW requires the services of a dietician for professional assistance and advice in relation to his food and fluids options from a nutritional perspective in the context of his dysphagia and autistic traits.
On this basis I am satisfied the services of a dietician is an NDIS support pursuant to section 10 of the NDIS Act (as amended) for the purposes of funding in WQSW’s SOPS.
The Agency also contends that, in any event, the quantum of hours sought by WQSW for the services of a dietician is not beyond what is reasonable and necessary. Having regard to the evidence of Ms Gabby Smith I accept this submission. In her oral evidence Ms Smith recommended monthly dietician support only in the context of a child that might be PEG fed or transitioning from nasogastric feeding to PEG feeding. In relation to WQSW however she stated as follows:
I believe that monthly dietitian intervention may be too frequent. Having a dietitian intervene either quarterly or six to eight-weekly, would be sufficient, in my opinion, to be able to oversee any nutritional changes that may need to be made to ensure that the therapists who currently have that in their goal plans, namely the speech therapist and the OT, are able to continue with their direct one-to-one intervention to support WQSW in his feeding abilities, as well as supporting his informal supports to do so.[132]
[132] Transcript page 220 line 40-47.
Conclusion
In summary I have concluded that 6 hours of dietician support is a reasonable and necessary support for funding in WQSW’s Statement of Participant’s supports.
Paediatric Stomal/Continence Therapist Support of 20 hrs per year
WQSW seeks 20 hours per year of support from a paediatric stomal/continence therapist and relies primarily on the recommendation of Ms Gentile.[133]
[133] A18.
M states that this support will provide her with expert guidance on how to better manage WQSW’s toileting needs, explore pathways for toilet training and alleviate struggles with constipation.[134]
[134] Applicant’s closing submissions.
WQSW is incontinent in respect of urinary and bowel function. He suffers from chronic constipation and has required manual disimpaction in the past. Currently WQSW’s continence is managed by nappies.
The Agency relies on the opinion of Ms Smith, which is that continence support falls within the expertise of an occupational therapist. Further, that support from a continence expert would be only appropriate on the basis that support from an occupational therapist had been ‘exhausted’.[135]
[135] Transcript pages 225-226.
In her oral evidence M stated that she had not sought continence advice from Ms Joss in her capacity as WQSW’s treating occupational therapist. This was on the basis that Ms Joss was not a ‘stomal nurse’.[136] M stated that Ms Joss was ‘not a stomal nurse, she’s an occupational therapist’.[137]
[136] Transcript page 112 line 11.
[137] Transcript page 112 line 5.
Ms Smith is an occupational therapist with 10 years of experience in paediatric occupational therapy. I accept her evidence that an occupational therapist has the requisite skills to provide advice and assistance in relation to issues of continence.
On the basis that advice from Ms Joss, or any other occupational therapist, in respect of WQSW’s continence has not been sought and exhausted, I am unable to be satisfied that this support is a reasonable and necessary support.
Conclusion
I am not satisfied that 20 hours per year for continence therapy support is a reasonable and necessary support for the purposes of WQSW’s Statement of Participant’s supports.
Hi-lo bed
WQSW seeks funding in the sum of $7,778.00 for the funding of a Hi-lo bed.
Ms Joss conducted an Assistive Technology Assessment of WQSW and recommended the Solace Sleep Floorline bed (the ‘Solace’) at a cost of $7,778.00.
Ms Smith however in her oral evidence states:
I don’t believe it’s a reasonable and necessary support in the absence of knowing whether low cost options have been trialled prior to going to the Hi Lo bed.
In respect of sleeping Ms Smith suggests as an alternative a standard bed with a floor height of 15cm. She also suggests the use of foam wedges under the mattress of the bed to raise the head of the bed to assist with reflux.
In respect of nappy changes Ms Smith suggests the ABCO junior change table (‘ABCO’) at a cost of $3,300.00. The ABCO is extendable to a length of 165cm. Ms Smith stated that the ABCO would have greater longevity than the ‘Kingsdene’ which was referred to as a second option by Ms Joss. This was because the Kingsdene change table could only be extended to a maximum length of 146cm.
Ms Smith’s evidence was not persuasive. This is understandable given she did not have the benefit of a visual inspection of WQSW’s home or bedroom configuration.
I am however persuaded by the recommendation of Ms Joss of the Solace as a reasonable and necessary support for WQSW. My considerations are as follows:
· The Solace will assist WQSW to pursue his goal of achieving age‑appropriate milestones which include independent access to the bed for sleeping.[138] The ability to adjust the height of the Solace allows WQSW to independently get in and out of the bed for both sleeping and nappy changes. It will provide him with the independence to be able to choose when he gets out of his bed to share time with his family.[139]
[138] S34(1)(a) NDIS Act.
[139] S34(1)(b) NDIS Act.
· It represents value for money as compared to the benefits which are achieved and the costs of alternatives for the following reasons:
oThe Kingsdene bed is large and unable to fit on WQSW’s bedroom alongside a bed. It follows that the ABCO, which is of a similar size, albeit with a longer extension, would be unable to fit in WQSW’s bedroom. Neither the ABCO nor the Kingsdene are suitable or realistic options;
oThe Solace has a dual purpose as both a bed and a change table. It will suit WQSW’s needs for continence and sleeping as he grows into adulthood;
oThe Solace can be tilted at the head end to accommodate WQSW’s reflux and laryngomalacia;
oThe height of the Solace can be adjusted. The height of a standard bed cannot be adjusted. It can be raised to an appropriate height for carers to change WQSW’s nappies;
oThe Solace can be tilted as compared to the Kinsgdene, the ABCO and a standard bed which cannot. This will assist with reflux that WQSW experiences due to his GORD;
oThe Solace bed frame is antibacterial and waterproof as compared to a standard bed which is not; and
oThe Solace mattress is waterproof and therefore suitable for nappy changes.[140]
· The Solace will be effective and beneficial for WQSW. His nappy will no longer be changed on the floor of the family living room. This will provide WQSW with privacy and dignity, particularly in the context that he may not achieve full continence for a number of years. With an adjustable height it will provide him with a level of independence to access for the purposes of nappy changes and sleeping.[141]
· The current arrangement for WQSW’s nappy changes on the floor of the living room is unacceptable. It is not reasonable to expect a family and WQSW himself to continue in the long term with this arrangement.[142]
[140] A32, s34(1)(c) NDIS Act.
[141] S34(1)(d) NDIS Act.
[142] S34(1)(e) NDIS Act.
The Agency accepts that this support is an NDIS support for the purposes of section 10 of the NDIS Act.
Item 14 of Schedule 1 to the NDIS Transitional Supports Rules provides as follows:
Supports that provide supervision or assistance with personal daily living tasks to help a participant to live as independently as possible in their own home and in the community.
This includes the following:
(a)assistance with eating and drinking, dressing and toileting;
(d)maintaining personal hygiene, including showering, bathing, hair washing and drying, fingernail and toenail cutting and cleaning;
(e)moving and positioning;
(f)in‑kind personal care in school
Having regard to the provisions in items 14(a), (d) and (e) of Schedule 1 to the NDIS Supports Transitional Rules, this is a reasonable and proper concession.
Conclusion
I am satisfied that a Solace Sleep Floorline bed at a cost of $7,778.00 is a reasonable and necessary support for the purposes of WQSW’s Statement of Participant’s supports.
DECISION
Pursuant to section 105(c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with a direction that:
1. Within 14 days of this decision WQSW’s statement of participant supports specifies the following supports as reasonable and necessary:
i.Level 2 support coordination - 26 hours over 12 months calculated at a rate set out in the NDIS Pricing Arrangements and Price Limits;
ii.Two pairs of bilateral supportive above ankle shoes - $600.00;
iii.Low-cost physiotherapy items such as compression garments - $500.00;
iv.Alert System for WQSW’s bedroom door - $157.00;
v.Proloquo2Go device - $80.00;
vi.Griffin Survivor All-Terrain Case with shoulder strap attachment – $80.00;
vii.Apple iPad - $500.00;
viii.Low-cost therapeutic items to improve coordination, strength and mobility of oral motor muscles involved in eating and speaking - $500.00;
ix.Adapted equipment incl but not limited to cutlery to support WQSW with feeding - $300.00;
x.Tripp Trapp High-Chair - $440.00;
xi.160 x ID Comfy Junior pants 4-7 years, 17-27 kg Pack/14 - $3,264.00;
xii.156 x Purely Baby Aqua and water wipes, Pack of 70 - $1,113.68;
xiii.156 x Cello RedWipe Silk 30cm x 33cm Pack/100 - $1,439.72;
xiv.12 x Cello Maxi Economy Bluey 450ml 60cm x 90cm, Pack 75 - $940.80;
xv.12 x Sudocream 250g tub - $329.21;
xvi.24 x Molicare Skin Cleansing Foam 400ml - $230.47;
xvii.24 x Molicare Skin Protection Foam 100ml - $256.08;
xviii.Osmolax Osmatic laxative 30 Doses, 510g at $20.71 each - $497.11;
xix.2 x Conni Kids Swim Shorts Ocean Blue (4–6 year old) - $193.60;
xx.6 x Night n Day Absorbent Bed Pads, King Single, 2000ml capacity - $664.20;
xxi.6 x Fusion Sheet Set Cobalt, King Single - $2,284.80;
xxii.2 x Duratherme Waterproof Quilt Insert, King Single - $751.96;
xxiii.2 x Durabreather Cover Set, Cheeky & Wild (includes 1 doona cover, 1 x pillowcases, King single bed, set) - $627.44;
xxiv.2 x Conni Large Chair pads - $60.80;
xxv.1 Squatty Potty toilet stool (7) - $67.75;
xxvi.12 x V-Wipes Hospital Grade Disinfectant Wipes, Pack/80 - $139.92;
xxvii.12 x Nitrile Gloves Large, Box/100 - $109.56;
xxviii.12 x Aqium Gel Hand Sanitiser 1 Litre - $218.33;
xxix.4 x Freight Charges for delivery of NDIS continence aids and consumables - $95.93;
xxx.Specialist Behavioural Intervention support of 45 hours per annum;
xxxi.A Behavioural Management Plan which includes Training in Behavioural Management Strategies of 20 hours per annum;
xxxii.16 hours per week of support worker assistance for WQSW to be used flexibly in the home and community;
xxxiii.6 hours per year of dietician services; and
xxxiv.Solace Sleep Floorline bed at a cost of $7,778.00.
2. The date by which the Agency must reassess WQSW’s plan is to be 12 months after the date on which the supports in (1) above are included in WQSW’s statement of participant supports;
3. All other supports in WQSW’s existing statement of participant supports are to be replicated pro-rata from the date of this decision until the reassessment date;
4. The management of the supports referred to in (1)(xxx) and (1)(xxxi) is to be Agency managed; and
5. Subject to [4] the management of funding for all other reasonable and necessary supports is to remain the same as the management for those supports in the statement of participant supports dated 15 December 2022.
I certify that the preceding 297 (two hundred and ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins.
......................[SGD]............................
Associate
24 December 2024
Dates of hearing:
28, 29 and 30 August 2024, 4 September 2024 and 9 December 2024
Applicant:
WQSW
Advocate for the Applicant:
Ms Sarah Bonanno of Inclusivity Plus
Solicitor for the Respondent:
Counsel for the Respondent:
Ms Jasmine Forsyth, Moray Agnew
Mr Ben McGlade
- AGLC
- WQSW and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2024] ARTA 235
- Case
- [2024] ARTA 235
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Tribunal was whether the supports sought by WQSW were 'reasonable and necessary' within the meaning of the Act. The Tribunal had to consider the composite phrase 'reasonable and necessary supports' in the context of the Act's objects, guiding principles, and the specific facts of WQSW's case. Additionally, the Tribunal had to assess the NDIA's Operational Guidelines on 'reasonable and necessary supports', given that while these guidelines were not binding, they were relevant to the decision-making process. The Tribunal needed to balance the statutory requirements with the practical needs of WQSW, ensuring that the decision aligned with the broader objectives of the NDIS.
The Tribunal found that the NDIA's decision to refuse funding for the majority of the requested supports was not adequately supported by the evidence and the legislative framework. The Tribunal emphasised the importance of a holistic approach to determining what constitutes reasonable and necessary supports, considering the participant's unique circumstances and the need to facilitate their full participation in the community. It was noted that the NDIA's Operational Guidelines, while not binding, provided useful context and should be considered unless inconsistent with the Act's provisions or objects. Ultimately, the Tribunal set aside the NDIA's decision and remitted the matter back to the NDIA for reconsideration, ensuring that the new decision-making process would be thorough, evidence-based, and aligned with the statutory requirements.
The final orders of the Tribunal were that the decision of the NDIA to refuse funding for the majority of the requested supports be set aside, and the matter be remitted to the NDIA for reconsideration in light of the Tribunal's findings and directions. The Tribunal directed the NDIA to provide a detailed written determination, setting out how it had considered the evidence, the relevant statutory provisions, and the need to facilitate WQSW's full participation in the community.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Full Court in National Disability Insurance Agency v WRMF[9] also considered the meaning of reasonable and necessary supports, and stated as follows [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.[9] National Disability Insurance Agency v WRMF [2020] FCAFC 79 (‘WRMF’).OPERATIONAL GUIDELINES The Agency issues Operational Guidelines in relation to what are considered ‘reasonable and necessary supports’ in a participant’s plan. There is no power conferred by the Act to make these Operational Guidelines, and they are issued in an exercise of executive power.[10] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines. However, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[11] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[12] where Mortimer J held:[13]Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it.Accordingly, unless the Operational Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in a determination of what is a reasonable and necessary support for WQSW. The Guidelines relevant to this review are the NDIS – Operational Guidelines - Reasonable and necessary supports.[14][10] G v Minister for Home Affairs [2019] FCAFC 79 at [18]. [11] [1979] AATA 179 (1979); 2 ALD 634.[12] [2018] FCA 1229.[13] ibid at [171]. [14] Webpage: ourguidelines.ndis.gov.au EVIDENCE