XNTW and National Disability Insurance Agency
[2023] AATA 759
•14 April 2023
XNTW and National Disability Insurance Agency [2023] AATA 759 (14 April 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/2380
Re:XNTW
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member O'Donovan
Date:14 April 2023
Date of written reasons: 14 April 2023
Place:Canberra
The decision under review is affirmed.
…………………………[sgd]………………………..
Senior Member Damien O’Donovan
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – dyslexia – dyscalculia – whether NDIA should fund services in numeracy and literacy – NDIA is not the appropriate source of funding or provision – decision under review affirmed
LEGISLATION
National Disability Insurance Scheme Act (2013) s33, 34
National Disability Insurance Scheme (Support for Participants) Rules 2013 Rule 3.5, Schedule 1
CASES
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Fear by his mother Vanda Fear and National Disability Insurance Agency [2015] AATA 706Burchell and National Disability Insurance Agency [2019] AATA 1256
SECONDARY MATERIALS
National Disability Strategy 2010-2020
Convention on the Rights of Persons with Disabilities
Productivity Commission 2011, Disability Care and Support, Report No. 54, CanberraBilateral Agreement between the Commonwealth of Australia and the Australian Capital Territory on the National Disability Insurance Scheme
REASONS FOR DECISION
Senior Member O'Donovan
14 April 2023
The applicant is an 11 year-old Canberra boy who is currently in year 5 at his local primary school. He is also a participant in the National Disability Insurance Scheme (the NDIS). He was initially granted access to the NDIS in 2018. The condition which was accepted as meeting the access criteria for the scheme was autism spectrum disorder (Level 3) (ASD). However, in March 2020 the applicant was found not to meet the disability requirements to access the scheme and was excluded from it.[1] The applicant’s mother submitted a fresh access request with supporting evidence on 21 January 2021.[2] The impairments relied on in that application were ASD (level 3), attention deficit disorder (ADHD), dyslexia, language disorder and anxiety. In February 2021 a decision was made that the applicant met all the requirements to again become a participant in the NDIS.[3] The impairments which met the disability requirements to access the scheme were not specified in the decision.
[1] T3.
[2] T8.
[3] T9.
When a person becomes a participant in the NDIS, the National Disability Insurance Agency (the NDIA) is required to create a plan for them which includes a Statement of Participant Supports (Statement). That Statement identifies reasonable and necessary supports which will be funded by the NDIA. On 23 February 2021 a new plan commenced for the applicant. The goal of the plan was to improve the applicant’s ability to focus on one task at a time and improve his reading and writing to an age-appropriate level.[4] The plan did not include funding for specific supports to address the applicant’s dyslexia and his mother immediately objected.[5] Subsequently, a request for funding for a dyscalculia specialist (i.e. a person who can address a maths learning disability) was added to the supports sought.
[4] T13.
[5] T10.
On 15 April 2021 the respondent affirmed the original decision to approve a Statement which did not include funding for a dyslexia or dyscalculia specialist.[6]
[6] T1A.
The applicant sought review by the Tribunal.
The applicant’s mother sought inclusion of supports relating to dyslexia and dyscalculia because she had become concerned at the progress that her son was making in basic reading, writing and mathematics. The applicant’s school was also concerned and had taken some steps to assist the applicant. However, from the applicant’s mother’s perspective, the interventions that the school was making were unlikely to assist her son to obtain essential basic skills in reading, writing and mathematics.
To address the issue the applicant’s mother identified after school tutoring programs which she believed would address her son’s poor performance in literacy and numeracy. Her belief, and the contention put on behalf of the applicant, is that funding for those programs should be included in the applicant’s Statement on the basis that they constitute reasonable and necessary supports.
The applicant asks the Tribunal to approve a Statement which includes:
(a)Two hourly sessions at the Canberra Reading Clinic; and
(b)One session each week in mathematics at the Canberra Learning and Development Centre.
The respondent resists the inclusion of the supports in the Statement on the following bases:
(a)the supports sought are not supports with respect to a condition for which the applicant has been, or would be, admitted as a Participant to the Scheme;
(b)the supports will not assist the applicant to undertake activities so as to facilitate his social participation;
(c)the supports have not been shown to be or likely to be effective and beneficial, having regard to current good practice;
(d)assistance to meet the objectives, as identified by the applicant’s mother, are reasonably expected to be pursued and paid for by the parent of a child;
(e)the supports sought are most appropriately funded or provided through the otherwise publicly funded ACT education system at the direction of the Education Directorate; and
(f)the provision of tutoring services for primary school children is neither the responsibility of the Scheme nor are there distinguishing circumstances of the applicant that would cause a departure from the ACT Education Directorate having responsibility for provision of services in that area. Further, the NDIS Rules exclude funding for the supports which have been sought.
These contentions raise issues about the efficacy of the supports sought, the appropriateness of the NDIA as the government agency which provides them, and a specific legal issue about the relationship required between the supports sought and the impairment which is being addressed by the supports.
It is not necessary to address all of the contentions advanced by the respondent to make a decision in relation to this matter. In my assessment, when regard is had to the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Support Rules) I am satisfied that the supports sought are not most appropriately provided through the NDIS. The supports are more appropriately provided through the ACT education system provided by the ACT Education Directorate. To explain my reasons for this conclusion I have divided these reasons into three sections which traverse the following:
(a)the decision-making framework for the inclusion of supports in a participant’s Statement;
(b)the facts concerning the supports which the applicant seeks; and
(c)the application of the Support Rules and their influence on the determination of whether the NDIS is the most appropriate source of funding.
Framework for including supports
The decision which the Tribunal is called upon to make is best described as a decision to approve a Statement in accordance with subsection 33(2) of the National Disability Insurance Scheme Act 2013 (NDIS Act). The Statement forms part of the applicant’s NDIS Plan, which is a document that must be prepared once a person becomes a participant in the NDIS. New plans can be created at regular intervals.
There are a host of provisions which are potentially relevant to deciding whether a support is a reasonable and necessary support which should be specified for funding in a participant’s Statement.[7] For present purposes it is sufficient to note that the Tribunal must be satisfied of all the matters identified in subsection 34(1).
[7] For a comprehensive discussion of the relevant provisions, see MMBX and NDIA [2022] AATA 13.
Subsection 34(1) provides as follows:
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Subsection (2) of section 34 authorises the National Disability Insurance Scheme rules to prescribe methods or criteria to be applied, or matters to which the CEO is to have regard in deciding whether or not she is satisfied of the matters mentioned in paragraphs (1)(a) to (f).
The relevant Support Rules are as follows.
Rule 3.5 provides:
Schedule 1 sets out matters for the CEO to have regard to in considering whether supports are most appropriately funded or provided through the NDIS, rather than through other service systems (service systems is defined in paragraph 6.4).
The matters to have regard to are set out under the following headings in the Schedule:
(a)Health (excluding mental health);
(b)Mental health;
(c)Child protection and family support;
(d)Early childhood development;
(e)School education;
(f)Higher education and vocational education and training;
(g)Employment;
(h)Housing and community infrastructure;
(i)Transport;
(j)Justice.
Schedule 1 is attached as an annexure to this decision.
Rules of particular relevance in Schedule 1 are the following:
7.1 The Act limits the supports that can be provided or funded under the NDIS to supports that are not more appropriately funded or provided through other service systems, for example as part of a universal services obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
7.2 The considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by the NDIS or another service system.
7.3 For the avoidance of doubt, while this Schedule sets our considerations relevant to whether a support should be considered to be more appropriately provided or funded through another service system, it does not purport to impose any obligations on another service system to fund or provide particular supports.
…
7.13 The NDIS will be responsible for supports that a student requires that are associated with the functional impact of the student’s disability on their activities of daily living (that is, those not primarily relating to education or training attainment), such as personal care and support, transport to and from school and specialist supports for transition from school education to further education, training or employment that are required because of the student’s disability. Any supports funded by the NDIS will recognise the operational requirements and educational objectives of schools.
7.14 The NDIS will not be responsible for personalising either learning or supports for students that primarily relate to their educational attainment (including teaching, learning assistance and aids, school building modifications and transport between school activities).
Other relevant aspects of the decision-making framework
To flesh out the Tribunal’s decision-making task, there is also one Federal Court decision which bears on the operation of the Support Rules.
The Federal Court gave consideration to the statutory task of approving Statements in the matter of National Disability Insurance Agency v WRMF.[8] In its judgment, the Court resisted determining what could be regarded as the outer limits of the phrase ‘reasonable and necessary supports’, but made one observation about the statute which is relevant to this case. The Court made the point that the matters in section 34 of the NDIS Act are not merely mandatory considerations but are in the nature of criteria which the decision maker must be satisfied of on the material before it. It is therefore clear that the Tribunal must be satisfied of all of the specific matters identified in the paragraphs of section 34(1) before a support can be included in a Statement.[9]
[8] [2020] FCAFC 79.
[9] Ibid [201].
In the present context this means that the applicant must satisfy me that the tutoring which the applicant seeks is ‘most appropriately funded or provided through’ the NDIS before I can specify it in the applicant’s Statement.
The Support Rules can influence the determination of whether a section 34 criterion is met. Under subsection 34(2), the Support Rules can either prescribe criteria to be applied by the CEO, or prescribe ‘matters to which the CEO is to have regard’ in deciding whether or not the CEO is satisfied as mentioned in any of the paragraphs of subsection 34(1). It seems clear enough that if the rules prescribe criteria, then they become matters which must be taken into account and could determine the outcome of the section 34 assessment. However, if the rules merely prescribe matters to which the CEO is to have regard, they are matters to be considered in the decision-making process without necessarily directing any particular outcome. This distinction makes it necessary to work out which category a particular Rule falls into in order to apply it correctly.
Support Rules 7.13 and 7.14 are relevant to determining whether paragraph 34(1)(f) is satisfied. However, it is unclear whether the two rules prescribe criteria to be applied when determining whether a support meets paragraph 34(1)(f), or prescribe matters to which the CEO is to have regard when performing that function.
The ambiguity emerges from an inconsistency between the terms in which the two rules are expressed, and the guidance given concerning the application of the rules in Rule 7.2. Rule 7.2 does not adopt the language of subsection 34(2) which creates a dichotomy between criteria to be applied and matters to be had regard to. Instead, it uses a third formulation for describing how the rules should be applied and provides that ‘the considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by the NDIS or another service system.’ (emphasis added)
This formulation seems more consistent with treating the rules in the schedule as matters to which the CEO is to have regard. However, on their face, Rules 7.13 and 7.14 are expressed in terms which indicate that they are prescribed criteria to be applied. The statement ‘[t]he NDIS will not be responsible for personalising either learning or supports’ has a directive tone to it which is not consistent with the creation of a matter to which a decision maker need only have regard. This tension is not easy to resolve.
The applicant contends that the matters set out in Rule 7.14 should be approached on the basis that they do not amount to a mandatory prohibition on the decision maker reaching the necessary state of satisfaction if the requirements of the rules are met. The applicant also contends that even if the terms of the rules are met, the decision maker still retains a discretion to find that a support is most appropriately funded through the NDIS. In essence the submission is that the rules should be treated as considerations rather than mandatory criteria.
Given the terms of Rule 7.2 I accept that submission. Accordingly, if there was material before me which indicated that the supports sought are most appropriately funded through the NDIS or otherwise met the threshold specified in paragraph 34(1)(f), the mere fact that the terms of Rule 7.14 are made out would not require me to find that the criterion in paragraph 34(1)(f) is not made out.
Having said that, if a support falls within the terms of Rule 7.14 that is a strong indication that the NDIA is not the most appropriate provider or funder of the support.
Once Rules 7.13 and 7.14 are taken into account, it is difficult in the circumstances of this case, to reach any conclusion other than that the supports sought are not most appropriately funded by the NDIA.
Evidence
The evidence before me consists of the following:
(a)The T-Documents with pages numbered 1-207 (T-Docs);
(b)A Tender Bundle agreed by the parties with pages numbered 1-833 (Exhibit 1);
(c)The School Report of the applicant for Semester 2 of 2021 (Exhibit 2);
(d)An Excel Spreadsheet of test results at Canberra Reading Clinic (Exhibit 3);
(e)Documents produced under summons from Canberra Reading Clinic, pages 1-242 made an exhibit on 3 April 2023 (Exhibit 4);
(f)Witness Statement of Sarah Dorrough dated 1 June 2022 (Exhibit 5); and
(g)The oral evidence of the following witnesses:
(i)Marcelle Sternbeck-Rutter;
(ii)the applicant’s mother;
(iii)Andrew Buesnel;
(iv)Jo Whithear; and
(v)Sarah Dorrough.
Facts
As noted above, the applicant is an 11 year old boy. His father is Russian and his mother is a recent émigré from Kazakhstan. The applicant has one sibling and speaks Russian at home. His parents separated in 2015 and his mother lives in very straightened circumstances but is determined to provide her children with the very best opportunities to succeed in her adopted country. The applicant’s father did not give evidence in the matter, but it appears on the evidence available to me that he may be less willing to make financial sacrifices to explore measures which may improve his son’s capacity to read and write and understand mathematics.
As noted above, the applicant first became a participant in the NDIS in 2018 on the basis of his ASD. He remained part of the scheme until 2020 when a decision was made to exclude him. He was re-admitted as a participant in the NDIS as a result of a decision in February 2021. A variety of disabilities and impairments were referenced in the application to become a participant including dyslexia.[10]
[10] T8 (n 2) 88.
Prior to his re-admission to the NDIS, it was already clear that the applicant was struggling with literacy and numeracy. He was behind his peers in developing these skills. His mother had observed that he failed to progress in reading, and in particular, reading comprehension. When he read a basic text, he was unable to answer simple questions in relation to the material he was reading. In relation to numeracy the applicant struggled to remember basic number facts, could not tell the time and was unable to do basic calculations about the cost of an item and what change he would receive when purchasing items in a shop.
His mother’s observations have been confirmed by his primary school teachers and other professionals.
As a result of these concerns, the applicant’s mother decided to enrol him in various after school programs to address these problems. In 2018 and 2019 there was no suggestion that these programs should be funded by the NDIA.
The applicant was enrolled at the Canberra Reading Clinic, a private organisation specialising in improving a child’s reading. The applicant was enrolled from the start of Term 4 2018 to the end of Term 4 2019.
In October 2020 (when the applicant’s family was gathering evidence for his re-admission to the NDIS) a speech pathologist reported that the applicant presents with a language disorder and recommended that he receive intervention. The report noted that the applicant’s level of functioning at that point was likely to be having a significant impact on his ability to access the school curriculum and to engage in everyday communication. If left untreated, the condition would be likely to have significant impacts on educational attainment, vocational opportunities and mental health outcomes.[11]
[11] T6.
At this point, the applicant’s mother re-enrolled the applicant at the Canberra Reading Clinic for Terms 3 and 4 of 2020.
In November 2020 the applicant’s school reported on his progress.[12] That report noted language learning delays and that the applicant could not comprehend texts he is able to decode - i.e., he could sound out the words of the text but could not understand the meaning of the text. It also noted that the applicant required repeated and regular intensive intervention in all areas of the curriculum to ensure understanding of the tasks set in class, and in maths frequent and repetitive activities to support mental computation were required to support the applicant’s poor working memory.
[12] T7.
In a Cognitive Report produced following testing in February 2021 the applicant was noted as poor in all areas of basic maths except division and word problems where he was recorded as not possessing skills at all.[13] His reading ability was poor with apparently no ability to spell or comprehend what he was reading, and his printing was poor and he was unable to do running writing. His verbal comprehension, working memory and cognitive proficiency were all rated as ‘very low’. Other tests were consistent with these results (although not uniformly).[14]
[13] T1D.
[14] Ibid 29-30.
Notwithstanding these negative results, the applicant’s learning disorders and his ADHD were assessed as mild.[15]
[15] T1D (n 13) 43.
Following the applicant’s re-admission to the NDIS, the applicant’s mother was keen to have the applicant’s further attendance at the Canberra Reading Centre funded. In addition, the applicant’s mother wanted funding for enrolment at the Canberra Learning and Development Centre to assist with his maths performance.
Canberra Learning and Development Centre
The applicant commenced tutoring with the Canberra Learning and Development Centre in 2021. At that point in time the applicant was 2 years behind in mathematics abilities relative to his peers.
In a report prepared by the principal of Canberra Learning and Development Centre, Marcelle Sternbeck-Rutter filed on 23 September 2021 she stated:
Currently, [the applicant] is being tutored in mathematics by us…(CLDC). He attends once a week for a 1:1 session with a tutor experienced in providing explicit teaching for mathematics students with learning difficulties and in particular dyscalculia. The program and strategies are set by the Director who has dyslexia and learning difficulties qualifications. The program used is the Maths – U – See Program recommended by the Australian Mathematics Association as it is an explicit, direct instruction program and aligned with the Australian Curriculum. The program is augmented with My Symphony Maths a multisensory style computer software package, manipulatives and games…He began the program at approximately a grade 1 level only able to complete simple 1-digit additions and subtractions…His tutor reports that [the applicant] has progressed to understanding and able to apply 2-digit addition without regrouping and now with regrouping. He has also progressed from subtraction without regrouping and now with regrouping, he has also covered inequality symbols and has started rounding…With a profile like [the applicant’s], learning his times tables, number bonds and basic number facts will be extremely difficult, if not impossible…Students [with dyscalculia] who do not receive the appropriate intervention will fall further behind their peers and likely never close the ever-widening gap between themselves and their peers…[the applicant] with continued tutoring of 1 hour per week will be exposed to learning how to tell the time, including time awareness; ie, how long 15 minutes is, the days of the week and understand the concepts of days, weeks, months and years. Understand the value of coins and notes. Learn how to estimate and check change for monetary transactions and estimate the cost of goods. These are crucial life skills and go directly to building capacity… To my knowledge most schools constrained by budget and limited qualified staff cannot provide this level of intervention required for these children…Increasing [the applicant]’s funding will enable his continued exposure to the appropriate intervention, which is a direct, explicit instruction program that is sequential and multisensory. Without this intervention [the applicant] could in all likelihood become mathematically and financially illiterate which could have enormous academic and social consequences.
Ms Sternbeck-Rutter updated the applicant’s progress in her oral evidence. She indicated that with 30 weeks of intervention the applicant is now able to perform multi-digit addition and subtraction, some division, and some multiplication. He can read an analogue and digital clock with support and he has some concept of currency. He is now assessed as being only 12 months behind his peers.
In relation to Canberra Reading Clinic, its principal, Jo Whithear provided a report dated 22 September 2021 which described the support offered in the following terms:
The Canberra Reading Clinic provides one to one reading assistance with a qualified classroom teacher. Lessons are provided in the Clinic (or online during Covid) for one hour sessions twice a week. The ‘Agility with Sound’ literacy program is delivered via a direct instruction teaching approach…The Canberra Reading Clinic does not guarantee improved reading outcomes for students. The Canberra Reading Clinic does not speculate as to the cause of reading difficulty. Pre and post standardised testing results with reading accuracy and fluency scores are provided to parents/carers. Teachers are required to administer a standardised words correct per minute assessment every four lessons throughout the tuition period. Results are recorded, graphed and a written report provided to parents…This CRC programs [sic] are based on a large body of research that supports a code based (phonological) approach to teach reading. That is, children must learn to both decode and comprehend words to read well, one cannot be exclusive of the other…I am unable to predict whether improving [the applicant]’s reading comprehension skills will facilitate his social participation. The assumption would be that [the applicant] would be more capable of understanding tasks and can participate in classroom activities.
In her oral evidence, Ms Whithear clarified that when the applicant commenced with the Canberra Reading Clinic the program used was the Multi-Lit Program. She stated that whilst the Multi-Lit Program had a heavy emphasis on decoding and a phonic element with a lot of single word reading, the Agility with Sound program placed more emphasis on reading comprehension and spelling. She accepted that the applicant’s progress through the program was slow but it was positive. This assessment appears to be based on the testing of the number of words per minute (WCPM) which the applicant was able to read. It is not clear that the applicant has made much consistent progress using this measure. In 2020, his results over time showed no consistent trend of improvement. While initially his WCPM jumped from 68 words on first testing to 105 words, by lesson 16 the count fell back to 60 words per minute before jumping to 103 at lesson 20.
In any event, progress on word count per minute is really a test of the applicant’s ability to decode words phonetically. It is unclear on the evidence whether the intervention has resulted in genuine progress in relation to the applicant’s reading comprehension. The applicant’s mother reported that the applicant was unable to answer questions in relation to the texts he read. There has been some evidence of progress in comprehension since the Agility with Sound program has been adopted but the evidence of progress is weak.
Normally the reading program is offered for 3 terms and in that time the student’s deficits should have been largely remedied. That is not what has occurred in relation to the applicant which raises doubts about the efficacy of the program for addressing the applicant’s particular needs.
While these interventions have taken place outside of school, the school has also sought to address the applicant’s problems with reading, writing and mathematics. Because of his difficulties and the fact that he speaks Russian at home the applicant attracts additional funding. The ACT Education Directorate has decided to pool that additional funding which relates to the applicant with funding attached to other children in the applicant’s class. The pooled funding is used to provide a Learning Support Assistant. It was clear from the evidence given at the hearing that this intervention has no prospect of remedying the applicant’s deficiencies in reading, writing and mathematics. The intervention does mean that the applicant has an opportunity to understand the tasks which are set in the classroom because they can be explained to him a second time after the teacher has explained it to the rest of the class, but the intervention does not address any of the fundamental deficits which have been identified. Other interventions have been considered or adopted in the short term but none have been of sufficient intensity or duration to significantly lift the applicant’s performance in key areas.
I am satisfied that the interventions which the school is making are not sufficiently targeted to make any significant difference to the applicant’s ability to read or write or progress in mathematics.
It is in this context that a decision must be made about whether I can be satisfied that the learning supports sought are most appropriately funded through the NDIS.
Do those supports meet the requirement specified in paragraph 34(1)(f)?
The requirements in subsection 34(1) of the NDIS Act can be grouped into 3 categories. Paragraphs (a), (b) and (d) require the Tribunal to focus on the assistance an applicant will get from being provided with a particular support. Paragraph (c) requires the Tribunal to assess whether the support represents value for money. Paragraphs (e) and (f) however focus on deciding whether the NDIA is the right person (using that term in the broadest sense possible) to be providing the support. Paragraph (e) requires consideration of what can be expected of families and other voluntary providers, and paragraph (f) requires consideration of whether another service delivery system is more appropriate than the NDIS to provide the support or fund the support that is being sought.
In broad terms, even if a support meets the requirements in paragraphs (a) to (d) in section 34, a support can only be included in a Statement if the Tribunal is satisfied that provision through, or funding by, the NDIA, is the most appropriate system for delivering the support.
Determining which delivery system is ‘most appropriate’ to deliver a service to a citizen is not normally the province of an executive decision maker dealing with a specific item of expenditure. It clearly involves a value judgment, but it is not easy to discern on what basis the judgment is to be made.
The phrasing of the requirement carries with it the implication that there is some readily available means by which a decision maker can rank the appropriateness of various persons (including the NDIA, a state government, a private company or the applicant’s family) providing a support, and if the NDIA comes in in first place then funding for the support can be included in a Statement. However, in reality, apart from the allocation of powers between the Federal government and the states found in the Constitution, there are few objective guides to assist with considering the question of relative appropriateness. Indeed, the Constitution itself is of no assistance as a starting point in this matter because while the states have responsibility for primary education, the Commonwealth has, through its ratification of the Convention on the Rights of Persons with Disabilities in combination with the external affairs power, acquired power to deal with matters concerning the education of persons with disabilities.
Consequently, the measure of which system of delivery is the most ‘appropriate’ for supply of a support of the kind under consideration is not to be found in the Constitution, but somewhere else. Where that is, is the subject of controversy.
In the decision of Fear by his mother Vanda Fear and National Disability Insurance Agency ,[16] a decision handed down early on in the life of the scheme, the Tribunal looked to the Productivity Commission’s 2011 report, Disability Care and Support, in order to identify principles which could be brought to bear in the assessment of which system of service delivery was most appropriate for providing a particular support.
[16] [2015] AATA 706 (‘Fear’).
The decision relevantly noted the following:
39. The NDIS implemented, in large part, the recommendations of the Productivity Commission’s 2011 report, Disability Care and Support, Report No 54, 31 July 2011. Regarding the role of “mainstream” services such as education, health care, public housing, transport and education services, the Commission said (at p 238):
It is generally accepted that disability services should not replace mainstream or other specialist services available to the broader population, or be expected to meet all the needs of people with disability. Indeed, a key policy goal is to move away from primary reliance on specialist disability services to the use of mainstream services or at least a mix of the two.
40. Further, the Commission said:
Access to generic services, such as health and housing, can affect demand for NDIS-funded services, and vice-versa. It will be important for the [NDIS] not to respond to problems or shortfalls in mainstream services by providing its own substitute services. To do so would weaken the incentives by government to properly fund mainstream services for people with a disability, shifting the cost to another part of government (such as from a state government to the NDIS, or from one budget ‘silo’ to another). This ‘pass the parcel’ approach would undermine the sustainability of the scheme and the capacity of people with a disability to access mainstream services.
41. That said, the commission recognised (at pp 238-239) that there were difficulties establishing “clear boundaries” between the disability service system and other mainstream service systems and that, even where boundaries were clear, they were not always consistent as between the states.
The Fear decision was concerned with the provision of health appliances to a person with a disability outside of the hospital context. The Tribunal in that case decided that the equipment sought was more appropriately funded through the general health system and the Tribunal was clearly influenced by the need to ensure that the NDIS did not ‘weaken the incentives by government to properly fund mainstream services for people with a disability’.
In Burchell and National Disability Insurance Agency ,[17] the Tribunal took specific issue with the Tribunal’s reliance in Fear on the Productivity Commission report. In Burchell, the Tribunal’s concern was that the Tribunal, by use of the report, was making an impermissible use of extrinsic material in interpreting a statute.
[17] [2019] AATA 1256 (‘Burchell’).
I agree with the view expressed in Burchell that the early vision of the Productivity Commission and the principles it applied in thinking about the scheme in the abstract are unlikely to provide much assistance in determining the meaning of particular provisions of the NDIS Act. However, it is important to note that when the Tribunal is determining which service delivery system is the most appropriate, it is making an evaluative judgment on a question given to it by the Parliament to answer, not engaging in an exercise in statutory interpretation.[18] Consequently, to the extent that the report highlights that an issue arises about who is the most appropriate funder or provider of a support and that the risk of inappropriate cost shifting is an issue to be guarded against in determining appropriateness, that can be relevant to the evaluative exercise that the Tribunal is obliged to undertake.
[18] Which is not to say that a statutory interpretation exercise is not required, just that it is only part of the process which needs to be undertaken.
The question then is, what other tools are available to the Tribunal to undertake the necessary evaluation. If a decision maker reaches the conclusion that a support meets the requirements of paragraphs 34(1) (a) to (d) and is otherwise satisfied that the support is a reasonable and necessary support, the last remaining question is who should pay for it or provide it. As I have already noted, there is little guidance on how to reach an answer. It is clear from the financing of the NDIS that the scheme is a shared responsibility between the states and the Commonwealth.[19] But it is not intended to be an exclusive all-encompassing response to the needs of its participants. The reference in the objects of the NDIS Act to the National Disability Strategy 2010-2020, which talks extensively about the co-operative approach which needs to be taken between the various levels of government in the provision of services and support to people with a disability, recognises that meeting the needs of persons with a disability is a shared responsibility and that agencies other than the NDIA have a role to perform. The question of who should pay for supports in any particular area is a question which the various levels of government know exists. They have engaged in processes to answer the question by negotiation. The results of those negotiations are reflected both in the Support Rules and the Bilateral Agreement between the Commonwealth of Australia and the Australian Capital Territory on the National Disability Insurance Scheme.
[19] See National Disability Insurance Scheme Act 2013 (Cth) Part 5 Chapter 1 and Part 6 Chapter 6.
The Support Rules are made under section 209 of the NDIS Act and are Category A rules.[20] The NDIS Act provides that:
The Minister must not make Category A National Disability Insurance Scheme rules unless the Commonwealth and each host jurisdiction have agreed to the making of the rules.
[20] Note that although section 34 is not expressly identified as a Category A rule, it falls into the category of all other rules except Category B, C and D rules which is a catch-all at the end of Category A.
All of the states and the ACT and Northern Territory are host jurisdictions.
In reading the Support Rules it is important to keep in mind that they are not just a reflection of the Commonwealth’s view of what is appropriate in terms of who should pay for or provide a service. They represent an agreed position as between the various levels of government which could potentially fund or provide a support. Accordingly, the Support Rules represent a highly relevant consideration in determining who is the most appropriate person to fund or provide supports in various categories.
The Support Rules specifically provide that the Agency will not be responsible for:
…personalising either learning or supports for students that primarily relate to their educational attainment (including teaching, learning assistance and aids, school building modifications and transport between school activities).
This reflects the approach taken in the agreement reached between the ACT and the Commonwealth. In 2019 the Commonwealth and the ACT entered into a bilateral agreement concerning the operation of the NDIS. In the Objective of the Agreement part, it states:
4This Agreement outlines the roles and responsibilities of the Commonwealth and the ACT in relation to governance, policy, market development and oversight and funding arrangements for the NDIS.
The agreement notes that:
8This Agreement is interoperable with:
…
d. the Principles to Determine the Responsibilities of the NDIS and other Service Systems – Applied Principles and Tables of Support (APTOS)’ agreed by the council of Australian Governments (COAG) on 19 April 2013, updated on 27 November 2015;
Those principles relevantly include:
All governments have agreed that our vision for an inclusive Australian society that enables people with disability to fulfil their potential as equal citizens. To achieve this vision, all Australian governments, non-government organisations, business and the wider community have a role to play. The interactions of the NDIS with other service systems will reinforce the obligations of other service delivery systems to improve the lives of people with disability in line with the National Disability Strategy.
…
2The NDIS will fund personalised supports related to people’s disability support needs, unless those supports are part of another service system’s universal service obligation (for example, meeting the health, education, housing, or safety needs of all Australians) or covered by reasonable adjustment (as required under the Commonwealth Disability Discrimination Act or similar legislation in jurisdictions).
In relation to school education the applied principles relevantly include the following:
2In recognising the universal and statutory role of the schooling system:
(a)Schools will be responsible for making reasonable adjustments to personalise learning and support for students that primarily relate to their educational attainment (including teaching, learning assistance and aids, school building modifications and transport between school activities);
(b)The NDIS will fund supports that the student requires due to the impact of the student’s impairment on their functional capacity and additional to reasonable adjustment (i.e. those not primarily relating to educational attainment)…
In the table headed Indicative Role of the NDIS and Other Parties – School Education the following appear relevant:
Other parties
oSkills, capability and other forms of training and transition support, including reasonable adjustment for students with disability, delivered in schools through the Australian curriculum.
oLearning assistance (this may include teachers’ assistants), and inclusion support (for example Auslan interpreters) to enable the participation of students with disability in education services, in line with reasonable adjustment.
NDIS Reasonable and Necessary Supports for eligible people
oPersonal supports at school/education facility that are required by an individual regardless of the activity that they are undertaking (e.g. feeding, managing airways/ventilation).
oAids and equipment…
oSpecialist transport to and from school/education facility required as a result of a person’s disability…
oSpecialised support and training for school staff related to the specific personal support needs…
oResponsibility for funding and coordinating allied health and other therapies to support a student’s functional capacity including those which may be delivered during school times, as negotiated with the school, for non-educational purposes.
oSpecialist transition supports required due to the impact of the student’s impairment on their functional capacity and additional to the reasonable adjustment obligations of schools.
oThe coordination of NDIS supports with the supports offered by the school education system and other relevant service systems.
All of these provisions support the conclusion that state and territory systems are responsible for educational attainment and teaching the Australian curriculum. The NDIA has responsibilities for provision of some services which facilitate a participant’s attendance at school, but it is the states and territories which have responsibility for educational attainment.
This is consistent with sentiments expressed in the National Disability Strategy 2010-2020 as endorsed by COAG on 13 February 2011. Most relevantly it provides:
Targeted support is needed to assist people who are disadvantaged in education and in the workforce, but mainstream education programs need to be designed for people of all abilities. (emphasis added)
Accordingly, I am satisfied that there has been considerable thought and effort put into dividing responsibility between the states and territories on the one hand and the NDIA on the other when considering educational attainment. All of the relevant documents directed at resolving the question of responsibility make clear that services which primarily relate to educational attainment are the responsibility of the states and territories to provide. This allocation is reflected in the Support Rules which re-enforce the conclusion that the NDIA is not the most appropriate funder of supports directed primarily at educational attainment. If I am satisfied that the supports sought are primarily directed at educational attainment, then I could not be satisfied that paragraph 34(1)(f) is satisfied.
Before turning to the factual question of what the supports are directed at, it is necessary to address a specific submission put by the applicant. The applicant submits that to treat what he is seeking from the tutoring supports as educational attainment is not the correct way of approaching the matter. What the applicant is seeking to address by improving his maths and literacy are functional impacts, resulting from his disabilities. Rule 7.13 should be applied in isolation with the consequences that, according to its terms, the NDIA is made responsible and is therefore the most appropriate agency to fund the support. The applicant contends that in these circumstances it is not necessary to proceed to consider the impact of Rule 7.14. I do not accept that submission.
Rules 7.13 and 7.14 are complementary, seeking to define in a consistent way what the NDIA will be responsible for and what it won’t be responsible for. In particular, the rules set up a dichotomy between supports which ameliorate the functional impact of a disability on activities of daily living and supports which primarily relate to educational attainment. The Support Rules promote the view that if a support primarily relates to educational attainment, then that indicates that the NDIA is not the most appropriate funder or provider of that support. However, if the support ameliorates the functional impact of a disability on activities of daily living (such as personal care or transport), then the NDIA is the appropriate funder.
The applicant in his submissions, highlights that there is a relationship between his educational attainment and his activities of daily living and so this strict dichotomy is hard to apply. If a person has not mastered basic maths and reading, there will be an impact on their functional capacity to undertake activities of daily living. An inability to tell the time will impact on a person’s ability to make and keep social engagements. An inability to count change or read labels will impact on a person’s ability to shop for themselves. So much can be readily accepted. However, it is also true to say that all of those skills are taught within the education system and are measured and reported on by teachers to parents. In that sense they are relevant to and are components of educational attainment.
While it is clear that there may be some circumstances where it is difficult to discern the difference between a support directed at educational attainment and a support directed at dealing with the functional impact of a person’s disability on activities of daily living, in the present case I am satisfied that the supports sought by the applicant are best characterised as personalised learning supports that primarily relate to the applicant’s educational attainment and in particular amount to learning assistance.
The report prepared by Canberra Learning Centre says ‘it is an explicit, direct instruction program and aligned with the Australian Curriculum.’ It is in essence a program designed to help students to acquire the skills being taught in the classroom. While it will, if successful, undoubtedly assist with the applicant’s activities of daily living, it primarily relates to educational attainment.
So too with the Canberra Reading Clinic. The evidence relevantly states:
The Canberra Reading Clinic does not speculate as to the cause of reading difficulty. Pre and post standardised testing results with reading accuracy and fluency scores are provided to parents/carers. Teachers are required to administer a standardised words correct per minute assessment every four lessons throughout the tuition period. Results are recorded, graphed and a written report provided to parents…This CRC programs [sic] are based on a large body of research that supports a code based (phonological) approach to teach reading.
The goal of the clinic’s service, simply stated, is to teach reading by providing learning assistance. Again, it goes without saying that if the applicant learns to read fluently his independence will be increased and his capacity for social participation will be enlarged. That however does not alter the fact that what is provided is learning assistance directed at educational attainment.
I am therefore satisfied that the applicant’s circumstances fall within the category of supports that Rule 7.14 states the NDIA will not be responsible for. Further, that rule is a reflection of the agreement between the Commonwealth and the states and territories as to which level of government will be responsible for providing or funding supports of this nature. Accordingly, I am satisfied that having regard to Support Rules 7.13 and 7.14 and to the other documents cited above which reflect the views of who is the most appropriate provider, the NDIA is not the most appropriate provider of the support. Accordingly, I am not satisfied of paragraph 34(1)(f) in relation to the supports sought.
There are two other submissions that it is important to deal with.
The first arises from the Tribunal’s decision in Burchell. In Burchell the Tribunal found that the support sought would not as a matter of fact be provided by mainstream health services and that it was a requirement for the support to actually be ‘provided’ by someone else for the NDIA to avoid responsibility. In the present case the ACT school system does not provide tutoring of the kind offered by the two identified services and is unlikely to provide the kind of targeted interventions which the services offer.
However, I do not agree with the conclusion in Burchell that unless the service is actually provided by another person then a support which otherwise meets the requirements in section 34 must be provided or funded through the NDIS. There is nothing in the terms of paragraph 34(1)(f) which requires such a conclusion. The question to which the paragraph is directed is who the most appropriate funder or provider of the support is. Just because a person is the most appropriate funder or provider of a support does not mean that they actually are providing that support. Rule 7.3 makes it clear that a finding that a particular person is an appropriate funder does not oblige them to provide the support. In Burchell, considerable emphasis was placed on the significance of the word ‘offered’ in s 34(1)(f) as carrying the implication that the support is actually offered. In my view the word ‘offered’ is a reference to the ‘general service’ which is offered by a person, through which a support could be supplied or funded even if in fact it is not.
Accordingly, in my assessment it does not assist the applicant that he has established that the ACT school system does not offer the targeted support that he will get from the identified support services. It does not matter that the ACT Education Directorate uses funding earmarked for the applicant to support Learning Support Assistants who do not provide a service which will remedy the applicant’s deficiencies in reading and writing.
It appears on the evidence available to me, that the ACT Education Directorate has not heeded the National Disability Strategy and designed ‘mainstream education programs…for people of all abilities’. They have instead adopted a strategy which favours classroom participation on the part of the applicant rather than the acquisition of essential literacy and numeracy skills. The remedy for this apparent misallocation of resources however is not to have the NDIA fund supports which cover the ACT’s failure to provide services which directly address the disadvantage faced by students who struggle to learn as a consequence of their disability. The best that can be done is to note the apparent weakness in learning support and confirm that the NDIA is not the most appropriate provider of supports which are directed primarily at educational attainment.
In reaching this conclusion I do not mean to direct any criticism towards either the applicant’s classroom teacher or school principal. Both struck me as extremely diligent educators who understood the system and its limitations very well. The structuring of educational support for students lagging behind is controlled within the ACT Education Directorate and it is at that level where greater focus on educational attainment appears to be required.
The other submission that needs to be addressed is the applicant’s contention that while it is generally true that education outcomes should remain the responsibility of the state and territory governments, because the applicant has reached upper primary without basic skills in literacy and mathematics and it is impacting on his activities of daily living and will continue to do so, the NDIA is now the most appropriate funder of the support or at the very least the Support Rules allow for some discretion in deciding to fund supports related to educational attainment and this residual discretion should be exercised in the applicant’s favour.
This submission was expressed in the following terms:
The functional impact of [the applicant]’s deficiencies in literacy and numeracy must be considered having regard to [the applicant]’s age. He is now at the upper end of primary school. If he were a “neurotypical” child, he would soon be expected to be able to catch a bus on his own, buy milk or bread or a bus ticket on his own, and read and understand the instructions on the back of a packet of two-minute noodles (or indeed a medication) on his own. He cannot, at present, do any of those things; and that is exactly what the Contested Supports are designed to address. They are in many ways a “survival support”, targeted at allowing [the applicant] to develop the necessary skills to properly engage with day-to-day living activities, as well as his educational attainment…
...
Whilst it is true that the compact between the States, Territories and the Commonwealth delineates a divide between supports to be provided by the education system and those to be provided by the Scheme, the rules were always designed with flexibility and discretion in mind. The proper exercise of the discretion in [the applicant]’s case is to accept that generally speaking, Rule 7.14 operates to render the Scheme not responsible for personalising learning or supports primarily relating to educational attainment. However, it is not and was not ever designed to impose a mandatory prohibition on a decision maker. The decision maker ultimately holds a residual discretion in deciding it is appropriate to fund a support for a participant like [the applicant], where it otherwise meets the reasonable and necessary criteria in section 34(1) of the Act.
While I accept that Support Rules 7.13 and 7.14 themselves do not oblige me to reach the conclusion that the supports sought are not most appropriately funded through the NDIS. However, I am satisfied based on those rules when considered with other material available to me,[21] that the NDIS is not the most appropriate funder of these supports directed as they are primarily at educational attainment.
[21] See paragraph 68 above and following.
On my reading of section 34, if I form the view (which I have), that a support is not most appropriately funded through the NDIS, I do not have a discretion to none-the-less specify the support in the applicant’s Statement. Section 34(1) requires that I ‘must be satisfied of all of the [criteria in section 34(1)] in relation to the funding of each support’. There is no discretion to disregard the fact that one of the criteria is not met. This view is consistent with the Federal Court’s decision in National Disability Insurance Agency v WRMF.[22] Accordingly there is no residual discretion available once I have reached the conclusion I have in relation to section 34(1)(f).
[22] [2020] FCAFC 79 at [201].
I should also be clear that in reaching the conclusion that educational attainment and the provision of learning assistance are the responsibility of the ACT Education Directorate I am not suggesting that the applicant is getting adequate support to achieve appropriate educational outcomes from the ACT Education Directorate. Indeed, having heard the evidence as to what the school provides, I am satisfied that the applicant’s mother is correct in her assessment that the kinds of supports which the ACT is funding are most unlikely to remedy the significant learning difficulties which her son has.
In particular, the Learning Support Assistant who provides the applicant with support in the classroom setting is ineffective in remedying the underlying literacy and maths deficits which the applicant suffers from. The Learning Support Assistant enables the applicant to remain in the classroom and to some degree interact with the curriculum, but ultimately the applicant has specific deficits which require direct intervention to remedy them.
Regrettably the NDIA is not the most appropriate person to fund or provide such supports.
These findings are sufficient to resolve the matter.
The decision under review is affirmed.
I certify that the preceding 97 (ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member O'Donovan
.................................[sgd]......................................
Associate
Dated: 14 April 2023
Date(s) of hearing:
9, 10 May 2022, 9 June 2022, 21 July 2022
Date final submissions received:
16 August 2022
Counsel for the Applicant:
Ms Bridie Harders
Solicitors for the Applicant:
Legal Aid ACT
Counsel for the Respondent:
Mr Matthew Gollan
Solicitors for the Respondent:
Australian Government Solicitor
ANNEXURE 1
Schedule 1 Considerations relating to whether supports are most appropriately funded through the NDIS
7.1 The Act limits the supports that can be provided or funded under the NDIS to supports that are not more appropriately funded or provided through other service systems, for example as part of a universal services obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
7.2 The considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by the NDIS or another service system.
7.3 For the avoidance of doubt, while this Schedule sets out considerations relevant to whether a support should be considered to be more appropriately provided or funded through another service system, it does not purport to impose any obligations on another service system to fund or provide particular supports.
Note: The considerations set out in this Schedule are derived from the Principles to determine the responsibilities of the NDIS and other service systems, agreed to by the Council of Australian Governments, and dated Friday 19 April 2013. That document also includes principles relating to aged care. They are not relevant to this Schedule, but are given effect to in section 19 of the Act, and the National Disability Insurance Scheme (Becoming a Participant) Rules 2013.
Health (excluding mental health)
7.4 The NDIS will be responsible for supports related to a person’s ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment.
7.5 The NDIS will not be responsible for:
(a) the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions; or
(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
(ii) provided after a recent medical or surgical event, with the aim of improving the person’s functional status, including rehabilitation or post-acute care; or
(d) palliative care.
Mental health
7.6 The NDIS will be responsible for supports that are not clinical in nature and that focus on a person’s functional ability, including supports that enable a person with a mental illness or psychiatric condition to undertake activities of daily living and participate in the community and social and economic life.
7.7 The NDIS will not be responsible for:
(a) supports related to mental health that are clinical in nature, including acute, ambulatory and continuing care, rehabilitation/recovery; or
(b) early intervention supports related to mental health that are clinical in nature, including supports that are clinical in nature and that are for child and adolescent developmental needs; or
(c) any residential care where the primary purpose is for inpatient treatment or clinical rehabilitation, or where the services model primarily employs clinical staff; or
(d) supports relating to a co-morbidity with a psychiatric condition where the co-morbidity is clearly the responsibility of another service system (eg treatment for a drug or alcohol issue).
Early childhood development
7.8 The NDIS will be responsible for personalised supports, specific to a child’s disability (or developmental delay), which are additional to the needs of children of a similar age and beyond the reasonable adjustment requirements of early childhood development service providers.
7.9 The NDIS will be responsible for early interventions for children with disability (or developmental delay) which are:
(a) specifically targeted at enhancing a child’s functioning to undertake activities of daily living, but not supports which are specifically for the purpose of accessing a universal service such as school readiness programs that prepare a child for education; and
(b) likely to reduce the child’s future support needs, which would otherwise require support from the NDIS in later years, including through a combination and sequence of supports.
7.10 The NDIS will not be responsible for:
(a) meeting the early childhood education and care needs of a child with a developmental delay or disability required by children of a similar age including through inclusion supports that enable children to participate in early childhood education and care settings; or
(b) supports, which are clinical in nature provided in the health system, including acute, ambulatory or continuing care; or
(c) new-born follow-up provided in the health system, including child and maternal health services.
Child protection and family support
7.11 The NDIS will be responsible for:
(a) supports for children, families and carers, required as a direct result of a child's disability, that enable families and carers to sustainably maintain their caring role, including community participation, therapeutic and behavioural supports and additional respite and aids and equipment; and
(b) where a child is in out-of-home care—supports specific to the child's disability (or developmental delay), which are additional to the needs of children of similar ages, in similar out-of-home care arrangements. The diversity of out-of-home care arrangements is recognised and the level of reasonable and necessary supports will reflect the circumstances of the individual child.
7.12 The NDIS will not be responsible for:
(a) statutory child protection services required by families who have entered, or are at risk of entering, the statutory child protection system; or
(b) general parenting programs, counselling or other supports for families, which are provided to families at risk of child protection intervention and to the broader community, including making them accessible and appropriate for families with disability; or
(c) funding or providing out-of-home care or support to carers of children in out-of-home care where these supports are not additional to the needs of children of similar age in similar out-of-home care arrangements.
School education
7.13 The NDIS will be responsible for supports that a student requires that are associated with the functional impact of the student’s disability on their activities of daily living (that is, those not primarily relating to education or training attainment), such as personal care and support, transport to and from school and specialist supports for transition from school education to further education, training or employment that are required because of the student's disability. Any supports funded by the NDIS will recognise the operational requirements and educational objectives of schools.
7.14 The NDIS will not be responsible for personalising either learning or supports for students that primarily relate to their educational attainment (including teaching, learning assistance and aids, school building modifications and transport between school activities).
Higher education and vocational education and training
7.15 The NDIS will be responsible for supports that a student requires which are associated with the functional impact of the student's disability on their activities of daily living (that is, those not primarily relating to education or training attainment), such as personal care and support, transport to and from the education or training facility and specialist supports for transition from education or training to employment that are required because of the person's disability.
7.16 The NDIS will not be responsible for the learning and support needs of students that primarily relate to their education and training attainment (including teaching, learning assistance and aids, building modifications, transport between education or training activities and general education to employment transition supports).
Employment
7.17 The NDIS will be responsible for:
(a) supports related to daily living that a person would require irrespective of whether they are working or looking for work (including personal care and support and transport to and from work); and
(b) frequent and ongoing supports that assist a person with disability to take part in work where the person has work capacity and is unlikely to be able to find or retain work in the open market, including with the assistance of employment services; and
(c) individualised assistance to support a person with disability to transition into employment, where these support needs are additional to the needs of all Australians and specifically required as a result of a person’s functional impairment, eg training on workplace relationships, communication skills, dress, punctuality and attendance, and travelling to and from work.
7.18 The NDIS will not be responsible for:
(a) work-specific support related to recruitment processes, work arrangements or the working environment, including workplace modifications, work-specific aids and equipment, transport within work activities and work-specific support required in order to comply with laws dealing with discrimination on the basis of disability; or
(b) the funding or provision of employment services and programs, including both disability-targeted and open employment services, to provide advice and support to:
(i) people with disability to prepare for, find and maintain jobs; or
(ii) employers to encourage and assist them to hire and be inclusive of people with disability in the workplace (ie support, training and resources, funding assistance to help employers make reasonable adjustments, and incentives for hiring people with disability, eg wage subsidies).
Housing and community infrastructure
7.19 The NDIS will be responsible for:
(a) supports to assist a person with disability to live independently in the community, including by building their capacity to maintain a tenancy, and support for appropriate behaviour management; and
(b) home modifications for accessibility for a person in private dwellings; and
(c) home modifications for accessibility for a person in legacy public and community housing dwellings on a case-by-case basis but not to the extent that it would compromise the responsibility of housing authorities to develop, maintain and refurbish stock that meets the needs of people with disability; and
(d) user costs of capital in some situations where a person requires an integrated housing and support model and the cost of the accommodation component exceeds a reasonable contribution from individuals.
7.20 The NDIS will not be responsible for:
(a) the provision of accommodation for people in need of housing assistance, including routine tenancy support and ensuring that appropriate and accessible housing is provided for people with disability; or
(b) ensuring that new publicly-funded housing stock, where the site allows, incorporates Liveable Housing Design features; or
(c) homelessness-specific services including homelessness prevention and outreach, or access to temporary or long term housing for participants who are homeless or at risk of homelessness; or
(d) the improvement of community infrastructure, ie accessibility of the built and natural environment, where this is managed through other planning and regulatory systems and through building modifications and reasonable adjustment where required.
Transport
7.21 The NDIS will be responsible for:
(a) supports for a person that enable independent travel, including through personal transport-related aids and equipment, or training to use public transport; and
(b) modifications to a private vehicle (ie not modifications to public transport or taxis); and
(c) the reasonable and necessary costs of taxis or other private transport options for those not able to travel independently.
7.22 The NDIS will not be responsible for:
(a) ensuring that public transport options are accessible to a person with disability, including through the funding of concessions to people with disability to use public transport; or
(b) compliance of transport providers and operators with laws dealing with discrimination on the basis of disability, including the Disability Standards for Accessible Public Transport 2002; or
(c) transport infrastructure, including road and footpath infrastructure, where this is part of a universal service obligation or reasonable adjustment (including managing disability parking and related initiatives).
Justice
7.23 In sections 7.24 and 7.25:
person not in custody means a person who is subject to the justice system (including relevant elements of the civil justice system), but is not in a custodial setting (for example, a person on bail, a person under a community based order that places controls on the person to manage risks to the individual or to the community, a former prisoner on parole, or a person in home detention).
person in custody means a person in a custodial setting, whether on remand or as a result of a sentence or other court order (including in a youth detention and training facility), or in a secure mental health facility.
transition supports, for a person in a custodial setting, means supports to facilitate the person's transition from the custodial setting to the community that:
(a) are reasonable and necessary; and
(b) are required specifically as a result of the person's functional impairment.
7.24 The NDIS will be responsible for:
(a) in relation to a person not in custody—reasonable and necessary supports on the same basis as all other persons; and
(b) in relation to a person in custody:
(i) reasonable and necessary supports other than those mentioned in paragraph 7.25(a), to the extent appropriate in the circumstances of the person's custody; and
(ii) transition supports.
7.25 The NDIS will not be responsible for:
(a) the day-to-day care and support needs of a person in custody, including supervision, personal care and general supports; or
(b) ensuring that criminal justice system services are accessible for people with disability including appropriate communication and engagement mechanisms, adjustments to the physical environment, accessible legal assistance services and appropriate fee waivers; or
(c) general programs for the wider population, including programs to prevent offending and minimise risks of offending and re-offending and the diversion of young people and adults from the criminal justice system; or
(d) the management of community corrections, including corrections-related supervision for offenders on community based orders; or
(e) the operation of secure mental health facilities that are primarily clinical in nature.
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