YBLR and National Disability Insurance Agency
[2023] AATA 1472
•5 April 2023
YBLR and National Disability Insurance Agency [2023] AATA 1472 (5 April 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2020/7879
Re:YBLR
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member K Buxton
Date:5 April 2023
Place:Brisbane
The Tribunal sets aside the decision under review and, remits the matter for reconsideration in accordance with a direction that the approved statement of participant supports specifies:
(a) funding sufficient to allow for the following one-off expenses:
·$600 for an iontophoresis machine;
·funding sufficient for assessment of the Applicant’s home modification needs (to replace previous funding of $1,500); and
·funding sufficient for assessment of the Applicant’s assistive technology needs (to replace previous funding of $1,300);
(b)that the Applicant’s funds are to be self-managed and that regular contact, every three months, take place between the Agency and the Applicant as a safeguard for the Applicant;
(c)the re-assessment date is 12 months after the date of this decision; and
(d)that the reasonable and necessary supports and other aspects of the statement of participant supports as set out in the decision under review (as re-made on 16 December 2022) are replicated on a pro-rata basis until the re-assessment date.
......................................[SGD]..................................
Senior Member K Buxton
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME - application for a review of a reviewable decision - participant supports - review of supports in plan - whether the Applicant's requested supports are reasonable and necessary within the meaning of section 34 of the National Disability Insurance Scheme Act 2013 (Cth) - whether the Applicant's requested supports represent value for money - whether the Applicant's requested supports are effective and beneficial for the Applicant - whether the Applicant’s requested supports are most appropriately funded or provided through the NDIS and not more appropriately funded through other systems of service delivery or support services – whether the Applicant’s supports are related to disability – whether the Applicant's funds should be self-managed or Agency-managed - Applicant seeking supports for which funding already exists - whether the Tribunal has sufficient evidence to determine whether the Applicant's requested supports are reasonable and necessary - decision under review set aside and remitted with directions.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth)
CASES
BIJD and National Disability Insurance Agency [2018] AATA 2971
Cox and National Disability Insurance Agency [2022] AATA 3911
HRZI and National Disability Insurance Agency [2023] AATA 481
Kupara and the National Disability Insurance Agency [2022] AATA 3091
Legal Services Board v Gillespie-Jones [2013] HCA 35
LPSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1563
McGarrigle v National Disability and Insurance Agency [2017] FCA 308
McPherson and National Disability Insurance Agency [2021] AATA 4682
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
National Disability Insurance Scheme v WRMF [2020] FCAFCA 79
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50
QDKH by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
Syddall and the National Disability Insurance Agency [2022] AATA 3738Young and National Disability Insurance Agency [2014] AATA 401
REASONS FOR DECISION
Senior Member K Buxton
5 April 2023
BACKGROUND
The Applicant, a [redacted]-year-old woman, is a participant in the National Disability Insurance Scheme (“NDIS”). She has sought review of decision by a delegate of the Chief Executive Officer (“CEO”) of the National Disability Insurance Agency (“the Respondent”) dated 3 November 2020 (“the internal review decision”) made pursuant to subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (“the Act”)[1].
[1] Exhibit 1, Joint Hearing Book, R1, T Documents, T1A, A. internal Review Decision, pp. 6-10.
The Applicant’s medical history is set out in the medical evidence before the Tribunal. Her main medical diagnoses are:
(a)an inflammatory pain disorder (Disorder X)
(b)spinal canal stenosis
(c)osteoarthritis
(d)ischaemic heart disease
(e)atrial fibrillation
(f)fibromyalgia
(g)irritable bowel syndrome; and
(h)hyperhidrosis.
The Applicant’s statement of participant supports (“SOPS”) was approved on 27 August 2020.[2] The Plan comprised the following supports for a period of two years[3]:
[2] Ibid, [T8], Applicant’s NDIS Plan (27 August 2020 – 27 August 2022) pp. 44 – 56.
[3] Respondent’s Statement of Facts Issues, and Contentions (‘RSFIC’), pp. 5.
Applicant’s Plan 27 August 2020 to 27 August 2022
Support
Description
Amount
Core Supports
Core supports may include low-risk/non-customised equipment and repairs on existing personal equipment, continence products, domestic support, yard maintenance, assistance with personal care and support to access the community. Funding can also be used flexibly for short term accommodation or additional assistance at home and in the community.
My Core Supports funding will be:
· $5,608.30 Self-managed
· $141,546.78 Plan-managed
$147,155.08
Transport
Transport may include provider vehicles or taxis to participate on social and community activities of choice. My Transport funding will be: paid as fortnightly instalments into my nominated bank account.
$3,568.00
Capacity Building - Improved Life Choices (CB Choice & Control)
Funding is provided for set-up costs, ongoing monthly administration fees and training in plan management provided by registered plan manager.
CB and Training in Plan and Financial Management by a Plan Manager (x 10)
My Improved Life Choices funding will be:
· $1,235.20 NDIA managed My Stated Supports funding will be:
· $227.53 NDIA-managed. Plan Management and Financial Capacity Building – Set up Costs
· $2,454.72 NDIA managed. Plan Management – Financial Administration
$3,917.45
Capacity Building - Improved Daily Living (CB Daily Activity)
For allied health professionals, such as a physiotherapist, psychologist or Occupational Therapist to assist you to meet the goals outlined in the plan. Funding can also be used for an assessment with a nurse (to review continence products) and a Podiatrist (to review orthotics)
My improved daily living funding will be:
$46,600.52 plan-managed
$46,600.52
Assistive Technology
Funding for rental/trial of assistive technology as recommended by a suitably qualified Assistive Technology Assessor to determine suitability of specified AT and/or Funding for rental of essential disability-related equipment to meet my immediate and unmet needs.
Funding of $900.00 is provided for repair(s) and maintenance of assistive technology related to my disability. Repairs greater than $1500 require a quote for NDIA acceptance prior to making a payment request.
Any assistive technology requested as a result of an occupational therapy assessment will need a clinical trial, recommendation and quote to be submitted from a suitably qualified allied therapist prior to the equipment being considered.
My assistive technology budget will be:
$1,300 plan managed
$1,300.00
Capital Supports – Home Modifications
Funding is provided for consultation and advice by qualified professionals (building construction professional) regarding the suitability of the home for modification including ways of achieving functional outcomes in accordance with jurisdictional requirements and required accessibility.
The decision on whether home modification supports should be included in the plan requires information from an assessment by an Occupational Therapist with home modification expertise. Funding has been included for this assessment and report. Further information is available on the NDIS website.
My home modifications funding will be:
$1,500 plan-managed
$1,500.00
TOTAL
$204,041.05
On 31 August 2020, the Applicant requested internal review of her Plan. On 3 November 2020 an internal reviewer decided that the original decision was correct. On 21 November 2020 the Applicant applied to the Tribunal for review of that decision.
A series of decisions were made by the Respondent following remittals by the Tribunal under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). The supports funded under the Plan were extended pro-rata for the period 22 December 2021 to 22 June 2022 and then again from 8 June 2022 to 7 December 2022 (with minor variation to account for the days in that 6-month period). The Applicant’s Plan before commencement of the hearing comprised the following supports over a six-month period:
Applicant’s Plan from 22 December 2021 to 22 June 2022 and from 08 June 2022 to 07 December 2022 (pro rated 6-monthly)
Support
Description
Amount
Core Supports
Funding for low-risk/non-customised equipment and repairs on existing personal equipment, continence products, domestic support, yard maintenance, assistance with personal care and support to access the community. Funding can also be used flexibly for short-term accommodation or additional assistance at home and in the community.
My core support funding will be:
$1,402.08 self-managed
$35,236.37 plan-managed
$36,638.45
Transport
Transport may include provider vehicles or taxis to participate on social and community activities of choice. My Transport funding will be: paid as fortnightly instalments into my nominated bank account.
$892.00
Capacity Building - Improved Life Choices (CB Choice & Control)
Funding has been included as per the current price guide which may result in a decrease in the over annual funded supports amount as no COVID-19 loading is included.
My stated supports funding will be:
$626.70 NDIA managed. Plan Management – Financial Administration
$232.35 NDIA-managed. Plan Management and Financial Capacity Building – Set up Costs
$859.05
Capacity Building - Improved Daily Living (CB Daily Activity)
For allied health professionals, such as a physiotherapist, psychologist or Occupational Therapist to assist you to meet the goals outlined in the plan. Funding can also be used for an assessment with a nurse (to review continence products) and a Podiatrist (to review orthotics)
My improved daily living funding will be:
$11,128.90 plan-managed
$11,128.90
Assistive Technology
Funding for rental/trial of assistive technology as recommended by a suitably qualified Assistive Technology Assessor to determine suitability of specified AT and/or Funding for rental of essential disability-related equipment to meet my immediate and unmet needs.
Funding of $900.00 is provided for repair(s) and maintenance of assistive technology related to my disability. Repairs greater than $1500 require a quote for NDIA acceptance prior to making a payment request.
Any assistive technology requested as a result of an occupational therapy assessment will need a clinical trial, recommendation and quote to be submitted from a suitably qualified allied therapist prior to the equipment being considered.
My assistive technology budget will be:
$1,300 plan managed
$1,300.00
Capital Supports – Home Modifications
Funding is provided for consultation and advice by qualified professionals (building construction professional) regarding the suitability of the home for modification including ways of achieving functional outcomes in accordance with jurisdictional requirements and required accessibility.
The decision on whether home modification supports should be included in the plan requires information from an assessment by an Occupational Therapist with home modification expertise. Funding has been included for this assessment and report. Further information is available on the NDIS website.
My home modifications funding will be:
$1,500 plan-managed
$1,500.00
TOTAL
$52,318.40, (6-months)
A hearing of the review application was conducted by the Tribunal on 6 and 7 December 2022 by video-link using Microsoft Teams. The Applicant appeared by telephone. Immediately following the hearing, and prior to the Tribunal’s decision, the Respondent accepted that it was appropriate for the approved SOPS to specify, in addition to the existing funded supports, transport funding, at level 3, with effect from August 2020, and 48 hours of level 2 support co-ordination annually. The decision under review was remitted and, from 16 December 2022, those supports were included in the Applicant’s plan (and the Respondent implemented backdating of the transport funding to August 2020). It is from this latest decision, made on 16 December 2022, that the Tribunal is to conduct the review application.[4]
[4] Administrative Appeals Tribunal Act 1975 (Cth), s.42D(4)(a).
Written submissions were provided by both parties after the hearing. In arriving at its decision, the Tribunal has considered these together with the tendered documents and the oral evidence given at the hearing.[5] The Tribunal is satisfied that all relevant material before the Tribunal has been considered and that the parties have each had an opportunity to draw the Tribunal’s attention to any parts of that material on which they wished to rely.
[5] During the hearing the Applicant expressed concern that not all relevant documents were contained within the hearing bundle and exhibits as the page numbering appeared insufficient or inconsistent. In the event, in excess of 1200 pages of material were placed before the Tribunal, including the hearing bundle containing over 850 pages, and the separately numbered document one in that bundle, being the T-documents, separately containing about 350 additional pages together with various additional numbered exhibits.
ISSUES FOR DETERMINATION
The issues to be determined by the Tribunal are whether various supports, for which funding has not been included in the decision under review, should be specified in the Applicant’s approved SOPS on the basis that they are reasonable and necessary in accordance with section 34 of the NDIS Act and whether the Applicant should self-manage the available funds.
In order to determine whether a support should be included in the SOPS approved in the Applicant’s plan under subsection 33(2) of the NDIS Act, the Tribunal must have regard to the matters set out in subsection 33(5) of the NDIS Act and determine whether it is satisfied that the support is a “reasonable and necessary support” in accordance with the criteria in subsection 34(1) of the NDIS Act. The Tribunal is to be positively satisfied that the criteria have all been met in order to approve that disputed support for inclusion in the Applicant’s SOPS.[6] Each of the following criteria for supports, set out in subsection 34(1) of the NDIS Act, must be satisfied in order for a support to be funded:
[6] BIJD and National Disability Insurance Agency [2018] AATA 2971, [50].
(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.
The word “reasonable” is informed by the criteria set out in subsection 34(1) of the NDIS Act, although its meaning is not exhausted by these factors. In relation to how the CEO’s function works in practice, Mortimer J said in McGarrigle v National Disability and Insurance Agency[7]:
…the text and context of s 33(5)(c), read with s 34(1) indicates that the CEO (or the delegate or Tribunal) must either be satisfied that a support has the character of being a reasonable and necessary support, or that it does not. Once a support is identified and described… then the question for the CEO (or the delegate or Tribunal) is whether he or she is satisfied that support, as identified, is reasonable and necessary for that particular participant.
[7] McGarrigle v National Disability and Insurance Agency [2017] FCA 308, [93].
Subsection 33(5)(d) of the NDIS Act requires the CEO to have regard to any criteria prescribed by the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘the Rules’) in relation to the manner in which the reasonable and necessary supports will be funded. The Rules made pursuant to subsections 34(2) and 35(1) of the NDIS Act provide further guidance with respect to the assessment of reasonable and necessary supports that will be funded. Pursuant to section 209 of the NDIS Act, the Rules are a legislative instrument and therefore have statutory force. In this case the relevant provisions are included within parts three and five of the Rules:
Value for money
3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a)whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(c)whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d)for supports that involve the provision of equipment or modifications:
(i)the comparative cost of purchasing or leasing the equipment or modifications; and
(ii)whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e)whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f)whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
General criteria for supports
5.1 A support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
(b)it is not related to the participant’s disability; or
(c)it duplicates other supports delivered under alternative funding through the NDIS; or
(d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
Supports identified by the Applicant as reasonable and necessary
The Applicant identified a number of supports for which, she contended, funding ought to be made available under the scheme. As time has passed since the SOPS leading to the reviewable decision was first approved in August 2020 it is understandable that she has identified additional, or different, supports. It is a matter for the Tribunal to consider the evidence available at the time of hearing and determine, afresh, whether the SOPS in the reviewable decision specifies the reasonable and necessary supports. From a jurisdictional point of view, this is relatively straightforward. The Full Federal Court in QDKH by his litigation representative BGJF v National Disability Insurance Agency[8] described the preparation of a SOPS as; “a collaborative process: the CEO is required to “facilitate” the preparation of a participants plan (s.32(1)) and to prepare the SOPS “with” the participant (s.33(2)).” The Full Court noted that the Tribunal’s jurisdiction is governed by subsection 25(1) of the AAT Act read together with section 103 of the NDIS Act. The CEO is to then “approve” the SOPS.
[8] QDKH by his litigation representative BGJF v National Disability Insurance Agency[2021] FCAFC 189, [10(d)].
A few months prior to hearing, the Tribunal (differently constituted) issued a direction in these proceedings which purported to have been made under subsection 25(4A) of the AAT Act which stated, “the Tribunal limits the scope of the review of the decision of the Applicant’s supports to those claimed by the Applicant as at 6 May 2022”.
It was unclear to the Tribunal, as presently constituted, on what basis the Tribunal could limit the scope of this type of review to only particular supports that the Applicant had “claimed”. To do so had the prospect of abdicating, at least in part, the review function mandated by the operation of section 25(1) of the AAT Act and section 103 of the NDIS Act. Those sections, read together, provide the Applicant with a right to review the whole of the decision made under section 33(2) of the NDIS Act after it has been internally reviewed under section 100 of that Act. Once that review right is exercised, it cannot validly be curtailed by a self-limiting direction of the Tribunal, and subsection 25(4A) of the AAT Act should not be read as providing the power to do so. That subsection provides, “The Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers”.
Reviews about supports can be wide-ranging, but not so wide ranging that they cannot be determined by a proper application of the law to the available evidence. It is not for the Tribunal to seek to impose limitations upon that task to reduce the scope of the review to less than that for which the statutory review right provides. The effect of the Full Federal Court’s decision in QDKH was to accept that the Tribunal had erroneously attempted to narrow the scope of a review about supports. With great respect to those who have sought to achieve the same end through the purported application of subsection 25(4A) of the AAT Act, this approach also risks leading the Tribunal into error. In the case of the direction made earlier in this proceeding, it is apt to note that the Tribunal cannot limit itself to consideration of only supports which an Applicant has “claimed” as the available evidence may lead the Tribunal to a conclusion that some different reasonable and necessary support ought to be included in the SOPS. Similarly, subsection 25(4A) does not excuse the Tribunal from discharging its statutory obligation to conduct a fulsome review and decide, for itself, what to specify in the approved SOPS. It would be surprising if the Tribunal could pick and choose the parts of its review function that it intended to exercise by an order “limiting” the “issues” to only those specified by the Tribunal if the true scope of the review jurisdiction is broader.
On a practical level subsection 25(4A) provides an opportunity for the Tribunal to specify those issues raised by a party which fall outside the (correctly understood) scope of the decision under review and to indicate that it will leave those, and any evidence relevant only to such issues, to one side when conducting the review. It also allows Tribunal members to identify “questions of fact” or “issues”, as is often beneficial when framing reasons for our decisions. It allows for evidence to be limited, subject to the assurances of procedural fairness found elsewhere in the AAT Act.[9] However, what subsection 25(4A) does not do is allow the Tribunal to leave out, or fail to undertake, part of the review, or to self-impose a limitation upon the scope of the review. In a review involving the re-exercise of the CEO’s power under subsection 33(2) of the NDIS Act it is for the Tribunal, standing in the shoes of the original decision-maker, to approve a SOPS that contains the reasonable and necessary supports that it specifies – not the supports “claimed” by the Applicant on review, not the supports requested up to a certain date, but all the supports that the Tribunal considers reasonable and necessary for the participant. For these reasons the direction of 1 September 2022, said to have made in these proceedings under subsection 25(4A) of the AAT Act, was set aside on the first day of the hearing, without the objection of either party, and the review has been undertaken, de novo, having regard to all of the available evidence.
[9] Although this can, in any event, be achieved by the exercise of the “procedural” directions power in s.33 of the AAT Act, see LPSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1563 (15 December 2021) at [33] per Bromberg J.
Although the Applicant has, over time, identified various supports which she contended were reasonable and necessary, she made clear during the hearing, at the commencement of her evidence, that she had sufficient funding in her existing plan, but that it had been inappropriately allocated. She submitted that, as a result, funding in one “bucket” could not be used for her needs even if she had exhausted funds from another “bucket”.[10] She sought review on this basis, asking for various funding to be re-allocated within the plan to make that funding accessible for various purposes. However, the Tribunal notes that if some supports discussed below were to be included in the SOPS it is likely that additional funding, rather than re-allocation of funding, would be required. Thirty such supports and issues were identified in the material prior to the hearing, and during the hearing the Applicant gave evidence about additional funding to attend a pain management clinic, which was not mentioned within the thirty previously identified issues. The Respondent was offered the opportunity to raise any concerns with respect to the procedural fairness of this late-raised issue, but no objection was raised.
[10] Applicant’s Response to the Statement of Issues, 8 March 2022, p.1; Transcript p.21, line 28 - p.22, line 27.
The Applicant stated in both her extensive written material, and on many occasions during the hearing, that she had been traumatised by the review process in the AAT. Some of the supports she identified as reasonable and necessary arose from the trauma and disruption to her life which she asserted had arisen because of the process in which she had been held. She said that her mental state had deteriorated, and she attributed this to the review process itself.
The evidence from the Applicant herself, and from relevant documents, demonstrated that she had, effectively, pitted herself against the Agency in two critical respects that have, unfortunately, elongated these proceedings. Firstly, the Agency formed the view some time ago that the Applicant should have access to support co-ordination to assist her to better understand and utilise funded supports and made a decision which had the effect of providing this funding to the Applicant in her plan. The Applicant lodged a complaint with the Agency as a result of the provision of these additional funds and the Agency withdrew the support in order to resolve the complaint. On the first day of the hearing the Applicant accepted that support co-ordination would be a welcome support and on the second day of the hearing, when further information was provided by the Respondent about her prior complaint, she accepted that this had occurred but stated that she now had a different view. Had the Applicant accepted and accessed this support when offered, she may have been better able to utilise her existing funded supports.
Secondly, the Applicant has chosen not to utilise existing funding in her plan to access appropriate assessments (by an appropriately qualified Occupational Therapist or other relevant assessor) of her assistive technology needs. Instead, she submitted that she best knew her own needs and was the only person who could select appropriate supports for herself. She expressed a low opinion of occupational therapists generally, and stated that such assessment should not be required, particularly by an Occupational Therapist, where she had already identified and chosen a particular support for herself[11] The recommendation of an appropriately qualified, independent allied health specialist, whilst not conclusive, is compelling information that may assist a decision-maker tasked with determining whether a proposed support is reasonable and necessary for a participant. Had the Applicant availed herself of the funded support for an assessment of her needs when funding was first included in the plan arising from the original decision (made on 27 August 2020) she may already have accessed supports recommended in that assessment, so long as they were reasonable and necessary supports, including home modifications, mobility aids, and the like for which she contends she should have funded supports. Insofar as these supports are concerned, as the Applicant had not produced evidence other than her own opinion as to the need for many of these supports, and the Applicant’s plan provided for funding for appropriate assessment of these supports, the Applicant was not “held” in these proceedings but instead elected not to utilise that funding to assist in demonstrating that these were reasonable and necessary. Had she not made such an election the parties may have been better able to understand whether her stated support needs could be met by the scheme, and whether any additional needs might be and identified (and then met) following appropriate assessment.
[11] Transcript, p.31, line 7 - 21; p74, line 39 – 45.
It is most unfortunate that the Applicant was not able to work with, rather than against, the Agency in relation to these two issues, and it is the Tribunal’s genuine hope that the long-term relationship between participant and Agency can be restored now that these proceedings are finalised. That will be particularly important given the Tribunal’s findings as to self-management of the Applicant’s plan.
The Tribunal’s findings as to supports are set out in detail below. The supports in relation to which evidence was given at the hearing can be loosely categorised into the following five groupings:
(a)Funding for supports which the Respondent accepted, either before or during the hearing, were reasonable and necessary (and which were incorporated into the decision under review as re-made on 16 December 2022);
(b)Supports for which funding already existing in the SOPS (and, therefore, for which no decision is required to be made in this case);
(c)Funding for supports without sufficient supporting evidence, including from an appropriately qualified assessor;
(d)Funding for expenses which the Tribunal considers are not reasonable and necessary supports; and
(e)Funding for supports which were not included in the Applicant’s SOPS and which the Tribunal considers are reasonable and necessary.
The final category consists of only two supports. The first is funding for the purchase of an iontophoresis machine to address and manage symptoms of hyperhidrosis, at a cost of approximately $600. Although funding for low-cost assistive technology is already provided for in the Applicant’s plan, it does not appear to the Tribunal that sufficient funding exists for the purchase of this machine. More is said below about this support. The second for increased funding to allow assessment of the Applicant’s current assistive technology and home modification needs.
The effect of the Tribunal’s decision is that, other than the supports conceded by the Respondent prior to or during the hearing[12], and the iontophoresis machine, the Applicant is, largely, in the same position as when the first plan was provided in August 2020 insofar as funded supports are concerned. Most of her stated support needs are catered for in the plan and the others require further assessment. For the reasons set out below, the Tribunal has found that additional funding for items including a guitar and lessons, payment of tertiary education fees, costs arising from the modification of a car which took place long before she become a participant in the scheme and various health-related expenses are not supports that can be funded for the Applicant under the NDIS.
[12] In relation to transport and support co-ordination.
Management of funds
The plan management arrangements in the decision under review provide for funds to be Agency-managed. The Applicant has requested self-management of her plan, and this is resisted by the Agency on the basis that the Applicant does not understand her current funding levels and the purpose of her funding and that, as a result, she poses “an unreasonable risk” to herself as she may overspend her funds.[13]
[13] RSFIC, p.15.
The Applicant submitted that she wished to manage her funds herself and gave evidence that she could have accessed reasonable and necessary supports sooner had she been permitted to access those supports herself. Although the Applicant considered, prior to the hearing, that various supports ought to have been funded through the scheme, and the Tribunal has arrived at a different conclusion in relation to many of those supports, this is not, alone, a basis to conclude that the Applicant poses an unreasonable risk, including a financial risk to herself, if she is to manage the funds for the specified supports. The Applicant is obliged to follow the decision of the Tribunal insofar as it is reflected in supports that are to be funded and those that are not. A participant must adhere to regulatory provisions and consequences apply if funds are mismanaged or incorrectly applied.[14] The Applicant presented as a witness who was well aware of her obligations and who did not wish to spend funds unless certain that the intended purpose was specified in her SOPS.
[14] See, for example, National Disability Insurance Scheme Act 2013 (Cth), s.46.
Further, the Applicant presented as financially literate and perfectly capable of managing her own affairs. She made reasonable concessions during the hearing when certain supports (of an ambit nature, such as tuition fees and guitar lessons) were discussed and demonstrated an understanding of the nature of reasonable and necessary supports. Even with the involvement of a support co-ordinator, such financial management carries with it responsibilities and some risk. However, in order to decline the Applicant’s request to manage her funded supports the Tribunal would need to be satisfied that the application of the factors identified in rules 3.8 and 3.9 of the National Disability Insurance Scheme (Plan Management) Rules2013 demonstrated the existence of unreasonable risk. These rules provide, (in cases where the participant is not a child):
3.8 Otherwise, the CEO is to have regard to the following:
(a) whether material harm, including material financial harm, to the participant could result if the participant were to manage the funding for supports to the extent proposed, taking into account the nature of the supports identified in the plan;
(b) the vulnerability of the participant to:
(i) severe physical, mental or financial harm; or
(ii) exploitation; or
(iii) undue influence;
(c) the ability of the participant to make decisions;
(d) the capacity of the participant for financial management;
(e)whether court or tribunal has made an order under Commonwealth, State or Territory Law under which the participant’s property (including finances) or affairs are to be managed, wholly or partly, by another person;
(f) whether, and the extent to which, any risks could be mitigated by:
(i) the participant’s informal support network; or
(ii) any safeguards or strategies the Agency could put in place through the participant’s plan.
3.9 The safeguards referred to in paragraph 3.8(e)(ii) could include, for example:
(a) setting a shorter period before the participant’s plan is reviewed; or
(b) setting out regular contacts between the Agency and the participant; or
(c) providing funding for supports (for example, budgeting training) that would assist the participant to manage their own plan.
The Tribunal is mindful that the principles relating to plans, contained in section 31 of the NDIS Act, include those providing for the maximising of choice and independence of the participant (section 31(i)), and for management of funds to be directed by the participant (section 31(b)). The Applicant also referred the Tribunal to the general guiding principles and, in particular, subsections 4(8) and (9) of the NDIS Act as containing relevant Principles as to choice, control and support for participants in dealings with the Agency, (together with other provisions in the NDIS Act).[15] During the hearing the Applicant noted that she was aware of the need for the scheme to be sustainable and for funds to be used only on supports that were reasonable and necessary.[16]
[15] Applicant’s written submissions, filed 10 January 2023, p.2.
[16] Transcript, p.22, line 33 – 39.
The Respondent submitted that it was “concerned that if the funding under the Applicant’s plan were self-managed the Applicant may not use her funding appropriately and may overspend it”.[17] The Respondent did not point to any particular evidence that would lead the Tribunal to conclude that the Applicant lacked the ability to make relevant decisions or lacked financial literacy, but invited the Tribunal to do so “based on the Applicant’s conduct in the Tribunal proceedings, including the statements she has made”[18]. The Tribunal has not identified conduct or statements that would demonstrate a level of unreasonable risk that would justify declining the Applicant’s request to manage her funds.
[17] RSFIC, p.15.
[18] Ibid.
The Respondent also submitted information showing that the Applicant’s funds had been significantly under-utilised from August 2020 onwards, noting that a substantial majority of those funds being plan-managed, and not self-managed, during that period. Without more information, the Tribunal concludes from this that the plan-management of much of the funding intended to be made available to the Applicant to support her has not been effective in facilitating management and delivery of those supports. The Applicant may have been better able to access supports had she managed the funding herself.
The Tribunal is not satisfied that an unreasonable risk to the Applicant has been demonstrated in this case that would displace the starting position of self-management and control set out in the provisions explored above. It is therefore proper that the method of management of the funds be self-management by the Applicant.
The Respondent submitted, prior to hearing, that if the Tribunal were minded to decide that self-management of the Applicant’s funded supports was appropriate, it would also be appropriate for 24 hours of level 2 support co-ordination to be included in her funded supports to help the Applicant understand her budget, understand her plan and access supports. It was submitted that this should take place over a six-month period and, thereafter, the plan should be reviewed. The decision under review now reflects the Respondent’s updated position that the Applicant would benefit from support co-ordination. The Tribunal considers that level of support is reasonable and necessary and finds that a pro-rated number of 48 hours over a 12-month period is consistent with the relevant principles in section 31 of the NDIS Act. Given that 48 hours per annum of level 2 support co-ordination funding is (now) specified in the Applicant’s SOPS as a result of the decision under review (as remade on 16 December 2022), it is not necessary to further consider this support.
The Respondent submitted that the re-assessment date should be no longer than six months away if the Applicant is to self-manage her funds. The decision under review identifies a re-assessment date of 23 June 2023, meaning that planning for this reassessment would begin almost immediately after implementation of this decision. The Tribunal considers that the Applicant would benefit from time away from the planning and re-assessment process and is not minded to accede to the Respondent’s submission. However, the Tribunal considers it appropriate to provide for regular contact, every three months, between the Agency and the Applicant as an appropriate safeguard for the Applicant, [19] and she may call upon her support co-ordinator for assistance to prepare for this contact if desired. Allowing for a reasonable period of time for the parties to implement the Tribunal’s decision, the Tribunal will specify a re-assessment date 12 months after the date of this decision.
SUPPORTS ACCEPTED BY THE RESPONDENT
[19] See National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth), 3.8(f)(ii) and 3.9(b).
Transport funding
As the Applicant cannot utilise public transport, and travels using her own vehicle, the Agency accepts that she should be entitled to level 3 transport funding of $3,456 per annum as this would be reasonable and necessary having regard to section 34 of the NDIS Act. The Agency accepts that this would have been reasonable from the time the initial decision was made in August 2020 and ongoing.
The Applicant has sought inclusion in her funded supports of transport funding calculated on a bespoke basis to take account of the actual kilometres travelled to and from medical appointments. She nominated the rate of $2.40 per kilometres, which is a rate recommended by the RACQ[20] for a modified vehicle. However, this rate takes account of the cost of modifying the vehicle, a cost which the Applicant stated she incurred prior to accessing the scheme, and the cost of owning and maintaining the vehicle itself, which the Applicant uses for a variety of purposes. Funded supports do not include day-to-day living costs that are not attributable to a participant’s disability support needs therefore the inclusion of the costs of owning a vehicle, as opposed to using it for disability-related needs, does not meet the value-for-money criteria in section 34(1)(c) as supplemented by Support Rule 5.1(d).
[20] Exhibit 1, Joint Hearing Book, A62, RACQ Private Vehicle Expenses 2020-21, pp. 720-736.
Transport funding at level 3 has been developed in order the meet the needs of a participant in the scheme who cannot utilise public transport. There are certain instances where the Tribunal has found that it is proper to fund other aspects of a participant’s transport costs[21], but these decisions were based on the unique facts in each case, and these decisions are not analogous to the Applicant’s circumstances. The Tribunal finds that level 3 transport funding of $3,456 per annum (but no greater sum) is a reasonable and necessary support and should be specified in the Applicant’s SOPS from August 2020.
[21] Such as Syddall and the National Disability Insurance Agency [2022] AATA 3738, where provision was made for a wheelchair user to access funded supports for taxi use over a six-month trial period and where the costs of purchasing or leasing a vehicle were found not to be reasonable and necessary; cf Kupara and the National Disability Insurance Agency [2022] AATA 3091, where an increase from level 2 to level 3 transport funding was accepted by the NDIA to be reasonable and necessary.
The Tribunal does not have jurisdiction to consider funded supports for periods earlier than the original decision made on 27 August 2020.[22] The only decision under review in this case arises from the s.100 review of the 27 August 2020 decision.
[22] The Applicant asserted, in correspondence provided to the Tribunal after the hearing, that the issue of transport dated back to an earlier point in time.
The decision under review now reflects the Respondent’s updated position as to level 3 transport funding and provision has been made for this from 16 December 2022. After the hearing the Respondent informed the Tribunal that funding at that level 3 transport funding for the earlier period from 27 August 2020 to 15 December 2022 had been addressed by transferring the amount of $4,116.11 into the Applicant’s nominated bank account in late January 2023. Having found that funding for level 3 transport from 27 August 2020 is a reasonable and necessary support and should have been specified in the Applicant’s SOPS from that date, the Tribunal is satisfied that effect has already been given to this finding by the Respondent and no further decision is required in relation to transport funding.
Support Coordination
No further decision is required in relation to funding for support co-ordination which has also been included in the decision under review from 16 December 2022 and is discussed above in the context of the issue of plan management.
SUPPORTS FOR WHICH FUNDING ALREADY EXISTS
Exercise equipment, personal training sessions, gym membership, physiotherapy and exercise physiologist
The Applicant currently has $11,218.90 in capacity building funding and $36,638.45 in core support funding included in her plan, each of which can be used flexibly. The Applicant has submitted that she does not require additional funding but submitted that her existing funding has not been appropriately allocated.
The funding for capacity building can be used for allied health professionals such as a physiotherapist and an exercise physiologist. A portion of this funding remained un-utilised at the time of re-assessment of her first plan. It is not clear whether the Applicant was unaware of the purpose of this funding, or whether she chose not to utilise the funding for physiotherapy and exercise physiology at that time. However, the inclusion of level 2 support co-ordination in the Applicant’s funded supports should assist her to connect with either service. As funding already exists, and has not been utilised, the Tribunal is not positively satisfied that the specification of additional funding would be reasonable and necessary having regard to section 34 of the NDIS Act.
The funding for core supports can be used to purchase necessary low-risk exercise equipment of for disability-related assistance in accessing a local gym. As funding already exists, and has not been utilised, the Tribunal is not positively satisfied that the specification of additional funding would be reasonable and necessary having regard to section 34 of the NDIS Act.
The evidence before the Tribunal in relation to the Applicants need to exercise included:
(a)Report of [redacted], GP (dated 16 June 2018)
(b)Letter of [redacted], GP (dated 29 January 2019)
(c)Report of [redacted], Occupational Therapist (dated 19 October 2019)
[redacted] recommended that the Applicant engage in a physiotherapy program and [redacted] made some general recommendations as to trialling “physical therapy”.
The Applicant gave evidence during the hearing that she would benefit from both the physical and social aspects of attending swimming lessons and a gym where an exercise physiologist was present to assist and support. She sought funding to attend both. However, she also gave evidence about her balance issues and that she had sustained injuries at home, and about adverse physical symptoms she had encountered when attending sessions with an exercise physiologist and a physiotherapist. She also stated that she currently had a skin condition that prevented her from swimming.
[redacted]’s letter of January 2019 is consistent with the conclusion that the Applicant has had “little benefit with physical therapy”. The Support Rules make clear that supports are not to be funded if they are likely to cause harm to the participant. The purchase of exercise equipment, such as the proposed exercise bike and platform machine to be used by the Applicant at home, may well risk further exacerbation of the Applicant’s symptoms and are not within the contemplation of “low-risk” exercise equipment for this reason.
However, the medical and allied health specialists have each suggested, albeit some time ago, that the Applicant may benefit from supervised exercise and movement, whether with an exercise physiologist or a physiotherapist. The Tribunal notes that the Applicant’s funded supports for the six-month period to 22 June 2022 (which have been replicated pro rata in this regard) contained $11,128.90 in capacity building which can be flexibly used, including with an allied health professional such as a physiotherapist, and $36,638.45 in core supports which can be flexibly used, including for low risk, non-customised equipment purchases.
The Applicant acknowledged this during the hearing but stated that she had not had time to access these supports. The Applicant submitted that the cost of gym membership was reasonable and necessary, and submitted that, in other decisions of the Tribunal, gym memberships had been determined as reasonable and necessary supports. The Tribunal will consider the individual circumstances of this case and notes that there is no direct evidence from a medical or allied health specialist that the Applicant requires a gym membership (or general access to a swimming pool) as part of her reasonable disability-related supports. The evidence on this issue is limited to that identified above. The Tribunal is not satisfied that attendance at a gym or swimming pool is a necessary and reasonable support in this case. The Applicant is at liberty to fund her own gym membership or pool attendance (as a day-to-day living cost not attributable to her disability) and to use her flexible funding to fund supports needed that relate to her disability, should she choose to attend a gym or swimming pool, such as being accompanied by an exercise physiologist to assist with her participation or a support worker to assist with access.
It follows that, for the various reasons set out above, the Tribunal is not satisfied that additional funding is required to be specified in the Applicant’s SOPS for exercise equipment, personal training sessions, gym membership (including general swimming pool access), physiotherapy and exercise physiology.
Hydrotherapy
Hydrotherapy was recommended in the report of [redacted], Occupational Therapist, dated 19 October 2019. The Applicant’s evidence is that she is not currently able to attend hydrotherapy because she has a skin condition caused by her medical condition which means she cannot go into the hydrotherapy pool. This evidence is consistent with a conclusion that it is not necessary at the present time, but that it may be reasonable and necessary in the future. The Applicant has previously stated that she would “like to try” hydrotherapy. [redacted], Occupational Therapist, also stated that the Applicant was likely to better manage joint and muscular symptoms and accomplish progressive strength training in water, together with the continuation of her dry-land therapy.[23]
[23] Exhibit 1, Joint Hearing Book, R2, ST22, Supplementary T-Documents, Report of [redacted], Occupational Therapist, p.113.
The Applicant currently has $11,128.90 in capacity building funding and $36,638.45 in core support funding included in her plan, each of which can be used flexibly. The funding for capacity building can be used for allied health professionals such as a physiotherapist and an exercise physiologist. The Tribunal finds that this funding can also be used for the provision of hydrotherapy sessions as these are within the contemplation of capacity building, so long as these sessions are undertaken by an appropriately qualified exercise physiologist or other allied health professional. Core support funding can be utilised should the Applicant require assistance from a support worker to access hydrotherapy sessions. A portion of the Applicant’s funding has not been utilised at the time of re-assessment of her first plan. This funding is available for therapies that are reasonable and necessary and the evidence from [redacted], Occupational Therapist, as to the benefit and appropriateness of hydrotherapy for the Applicant has been clear since her report was authored in 2019. The inclusion of level 2 support co-ordination in the Applicant’s funded supports should assist the Applicant to connect with a suitable hydrotherapy service when her health permits.
As funding already exists, and has not been utilised, the Tribunal is not positively satisfied that the specification of additional funding would be reasonable and necessary having regard to section 34 of the NDIS Act. On that basis, the Tribunal is not satisfied that there is any proper basis for additional funding to be specified in the Applicant’s SOPS.
Short term accommodation
Short term accommodation (“STA”) is funded under the scheme to provide, in a variety of situations, for respite for a participant or a carer or to allow for various disability-related needs to be met. The Applicant has approved funds for STA of up to 28 days per annum that can be used flexibly as part of her core supports.
The Applicant accepted that this was sufficient, and the Respondent did not contend for any change to the decision under review with respect to STA. There is no basis upon which a change to the funded supports in this regard is either sought or appropriate.
Social outings and social allied health services
The Applicant currently has $36,638.45 in core support funding included in her plan which can be used flexibly for disability-related community access needs. Her evidence during the hearing was that she had not arrived at the detail of this request herself and that it was the Respondent who had identified this as a potential issue for consideration by the Tribunal. In terms of accessing the community, the Applicant was content that her transport request would address this support need and did not seek further supports.
The Applicant explained that she was concerned about whether particular allied health services could be accessed using her flexible funding as the approach by the Agency to, for example, a dietician had been inconsistent. Allied therapies are dealt with below.
Podiatry
The Applicant may access existing funding in her plan for a podiatry assessment and, if needed, orthotics. Having regard to the report of [redacted] (Podiatrist) (dated 29 May 2020) the Tribunal is satisfied that this is a reasonable and necessary support. It is not necessary to make any further findings about this already funded support.
Linen service
The Tribunal notes that the Applicant’s funded supports for the six-month period to 22 June 2022 (which have been replicated pro rata in this regard) contained $36,638.45 in core supports which can be flexibly used, including for support workers to assist with her laundry needs. During the hearing the Applicant accepted that she has this support available. The Tribunal is not satisfied that there is any proper basis for additional funding to be specified in the Applicants SOPS on this basis.
Support to move house and “Clean out-discard”
The Applicant gave evidence to the effect that she had a long-held interest in moving home but felt she may have missed an opportunity to do so last year when market conditions were more favourable. She confirmed she did not hold any present intention to sell her home, but if she did the “clean out” task would also be required to be undertaken.
It is open to the Applicant to seek a review under section 48 of the NDIS Act if her circumstances change and further disability-related support is required for a future home move. However, the Tribunal notes that the Applicant has a flexible budget of core supports that she could use to assist with domestic tasks like packing boxes, and the cost of a removal van would be an ordinary household expenses should the Applicant choose to move home.
EXPENSES THAT ARE NOT REASONABLE AND NECESSARY SUPPORTS
Job skills/Graduate certificate
Participating in work, or completing vocational or higher education to do so, involves private expenses that are incurred equally by those with and without disability, unless further education delivers capacity-building that relates to a participant’s disability. There may be additional supports needed to overcome barriers that might prevent the meeting of goals. However, funding for the cost of the course itself, where that course is not related to a person’s disability, is not a reasonable or necessary support.
The Applicant’s GP, [redacted], stated (in his report dated 16 June 2018) that the Applicant may benefit from re-training. However, this evidence does not take her desired tertiary studies into the realm of disability-related supports in this case. Funding for the course itself is a private expense for the Applicant. The Tribunal is not satisfied that additional funding is required to be specified in the Applicant’s SOPS for the Applicant’s fees relating to tertiary study.
Internet connection, Electricity costs and Water costs
The Applicant has sought funding for a number of household expenses that are similar in nature to those incurred in all households. These include internet, electricity, and water costs. These day-to-day costs are excluded from consideration by virtue of rule 5.1(d) and 5.2(a) which, when read together, provide that only such costs as solely and directly arise from a person’s disability may be funded. There does not appear to be any proper basis in the evidence for internet, electricity, or water costs to be funded as reasonable and necessary supports.
The Tribunal notes that the Applicant operates an air conditioner and submits that this is disability-related to assist with her issues of thermal regulation. The Applicant submitted that her air-conditioner and laundry appliance use placed a higher than usual burden on both her household power and water charges. However, she did not provide a mechanism for the calculation of the increase or any reliable basis upon which the Tribunal could quantify any disability-related increase in these utility bills.
It is not unusual for capital works for the installation of such items to be funded through the scheme but, without clearer evidence as to both cost and need, and the extent to which the use of an air conditioner is solely disability-related, the electricity used to operate the air-conditioner would ordinarily remain an everyday household item. Water costs ordinarily would fall into the same category.
The Applicant argued that, with respect to internet, her involvement in this review has substantially increased her internet use. This is not a jurisdiction in which even a wholly successful applicant can recover the costs and outlays from another party, and the statutory scheme does not respond in this way. In any event, the Applicant has not been wholly successful in her review application, and it is a matter for her how she chooses to run her case.
There does not appear to be any proper basis in the evidence for these private expenses to be funded as reasonable and necessary supports. The Tribunal is not satisfied that additional funding is required to be specified in the Applicant’s SOPS for these expenses.
Guitar
The purchase of a musical instrument and pursuit of learning as a new hobby is not related to the Applicant’s disability. There does not appear to be any proper basis in the evidence for this private expense to be funded as reasonable and necessary supports and the Tribunal is not satisfied that any additional funding is required to be specified in the Applicant’s SOPS.
Muscle-eze and assorted pharmacy products
The Applicant identified a number of medicines, supplements, and treatments she obtains from the chemist and submitted that it was proper to fund these as reasonable and necessary supports. Lipikar Balm was applied on her skin to repair it. Some products required prescriptions and others did not. The Applicant gave some generalised evidence about the need for such products but did not provide supporting expert evidence or particulars of such costs.
Subsection 34(1)(f) of the NDIS Act precludes a support from being funded under the scheme if that support is more appropriately funded or provide through another general system of service delivery. Support Rules 3.5 and 3.6 refer to the matters to be taken into consideration in determining whether supports relating to a participant’s health meet the criterial in subsection 34(1)(f). Support Rules 7.5 provides that the NDIS will not be responsible for … clinical treatment of health conditions, including ongoing or chronic health conditions or other activities that aim to improve the health status of Australians, nor will the NDIS be responsible for an inclusive list of health services that identifies General Practitioner, medical specialist and allied health services together with pharmaceuticals.
The pharmaceutical items identified by the Applicant are an extension of the Applicant’s medical and health care and are specifically excluded under the Support Rule 7.5(b). Supports more appropriately funded through another scheme, such as Medicare or the pharmaceutical benefits scheme are not intended to be met through the NDIS.[24]
[24] See National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth), 3.6, 7.4 and 7.5.
In Young and National Disability Insurance Agency [2014] AATA 401 the Tribunal noted that:
“Whether or not funding is available through other general systems is not the test of whether it is most appropriately funded or provided through the NDIS. The fact that the health system does not fund entirely, or even at all, what is essentially clinical treatment, or some other form of support that is more appropriately funded through the health system, does not make it the responsibility of the NDIS.”[25]
[25] Young and National Disability Insurance Agency [2014] AATA 401, [41].
Since Young[26], the Tribunal has variously determined that medical equipment[27] and pharmacological therapies[28] could not be funded under the scheme on the basis that these support the Applicant’s health and are therefore not to be funded under the scheme. I also respectfully adopt the approach taken by the Tribunal in Young. Even if there is a shortfall between the cost of the health care treatment and what is funded under the health system, the support cannot be funded under the NDIS.
[26] In which it was determined that a portable oxygen concentrator and an insulin pump were more appropriately funded through the health system.
[27] A defibrillator, in McPherson and National Disability Insurance Agency [2021] AATA 4682 (17 December 2021), determined to have been “excluded” from the scheme for slightly different reasons.
[28] Pain-relieving botox injections, in Cox and National Disability Insurance Agency [2022] AATA 3911 (2 November 2022), determined as more appropriately funded through the health system.
Support Rule 7.4 provides that 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.
The line between the included supports defined in Support Rule 7.4 and the excluded supports defined in Support Rule 7.5 is not always simple to discern. For example, it is not uncommon for a SOPS to specify funding for allied health care to support a participant’s social and economic participation or to provide for consumables which are products that may be used to support a person with a disability to undertake their daily activities. However, in this case, the general nature of the medicines, supplements and treatments identified by the Applicant are in the nature of products that relate to the Applicant’s health conditions and are therefore not the responsibility of the NDIS.
The Tribunal notes that the Applicant’s funded supports included just over $1,400 for consumables for the 6-month period to June 2022 and that these funds have been replicated, pro rata, since then. In the absence of compelling evidence to the contrary, the products which support the Applicant with her ongoing functional impairment and as directly related to her care and support to participate socially and economically (rather than assisting with her health care) can be met from this flexible fund. The Tribunal is not satisfied that any additional funding is required to be specified in the Applicant’s SOPS as a result of the purchasing and use of these pharmaceutical products.
Massage, Sauna and Remedial Therapies
The Applicant asserted that she required access to a sauna and massage therapy, together with other remedial therapies. The therapies recommended in the report of [redacted], Occupational Therapist, included ultrasound, massage and interferential treatment as “passive physiotherapies”. As noted above, [redacted]’s report also identified hydrotherapy as a recommended support.
The Applicant stated that she had not had “a lot of joy” out of physiotherapy and was usually told they could not do much for her, therefore she wanted to try alternative therapies.[29] The question is not whether it is reasonable for the Applicant to sample various therapies and aid to seek relief from her physical symptom, but whether those therapies are reasonable and necessary supports which can be funded by the NDIS.
[29] Transcript, p.122, line 3 to 17, see also p.125, lines 40 to 45.
In order for the requirement of subsection 34(1)(c) and (d) of the NDIS Act, as amplified by the Support Rules, to be satisfied, the Tribunal must find that the proposed support is value for money, relative to the benefits to be achieved, and will be, or is likely to be, effective and beneficial for the participant. Support Rule 3.1provides that the Tribunal is to consider whether there is evidence that the support will substantially improve the life stage outcomes for the participant, increase independence and reduce the need for other kinds of supports. Evidence as to whether a support is effective and beneficial, having regard to current good practice, may come from expert opinion, lived experience of a participant and from the NDIA itself.
Where a proposed support has not yet been trialled by a participant, clear evidence is needed that the support will, or is likely to, be both effective and beneficial. The Tribunal must be satisfied that what is sought to be funded under the scheme is (at least) likely to be an effective, beneficial and cost-effective measure. Proposed supports that a participant considers are “worth a try”, even where other treatments or supports have failed, will not meet the requisite standard. The Applicant gave evidence that she wanted to trial the use of a sauna, and it is open to her to do so, but as there is no expert opinion, or lived experience from the Applicant as to the success of this treatment, and no relevant information in support of this from the NDIA, the Tribunal has not formed the view that sauna treatment is likely to be effective, beneficial and value for money.
As to massage therapy, funding already exists for this to be provided as passive physiotherapy in the manner described in [redacted]’s report. There is no clinical or expert evidence upon which the Tribunal could base a conclusion that a massage therapist who is not a physiotherapist would provide support to the Applicant that is reasonable and necessary under section 34 of the NDIS Act.
The Tribunal is not satisfied that there is any proper basis for additional funding to be specified in the Applicant’s SOPS for sauna or massage therapy or other remedial therapies at this stage.
Chiropractor
Just as sessions with a General Practitioner or specialist doctor are not intended to be covered by the NDIS as they relate to a participant’s health, treatment addressing pain, such as chiropractic adjustment, are to be similarly approached.
Subsection 34(1)(f) of the NDIS Act precludes a support from being funded under the scheme if that support is more appropriately funded or provide through another general system of service delivery. Support Rules 3.5 and 3.6 refer to the matters to be taken into consideration in determining whether supports relating to a participant’s health meet the criterial in subsection 34(1)(f). Support Rules 7.5 provides that the NDIS will not be responsible for … clinical treatment of health conditions, including ongoing or chronic health conditions or other activities that aim to improve the health status of Australians.[30]
[30] See also Support Rule 7.4
The letter of [redacted], GP (dated 25 March 2020) contains a recommendation for chiropractic care, and the Applicant stated that he had suggested the Applicant return to the chiropractor recently as this was more suitable that physiotherapy. The point at which treatment is more appropriately funded through another scheme, such as Medicare and the public health system, can be difficult to discern, but in the case of chiropractic care, this is expressly provided for in the Medicare system. Although that system may not cover all of the Applicant’s relevant costs, it is the intention of the legislation that medical matters be funded by that system. It follows that the Tribunal is not satisfied that there is any proper basis for additional funding to be specified in the Applicant’s SOPS for chiropractic costs.
Myotherapy, Osteopath, Bowen Therapy, Spa Therapy
This cluster of therapies is not recognised by the NDIA as allied health therapies for which funding can be obtained and was not the subject of any expert evidence from which the Tribunal could conclude that each or any of them was reasonable and necessary.
Dietary meals and freezer
The Tribunal notes that the Applicant’s funded supports for the six-month period to 22 June 2022 (which have been replicated pro rata in this regard) contained $36,638.45 in core supports which can be flexibly used, including for support workers to assist with cooking or to access the service (but not the food) portion of the cost of pre-prepared meals. During the hearing the Applicant accepted that she has this support available. The Tribunal is not satisfied that there is any proper basis for additional funding to be specified in the Applicant’s SOPS on this basis.
CBD oil/THC extract
The Applicant’s evidence was that she took part in a trial to replace codeine-based pain medication with CBD oil and it was at least partially successful. She submitted that funding for her ongoing participation constituted a reasonable and necessary support.
Various documents in evidence confirmed that this alternative treatment was recommended for the Applicant’s pain:
(a)Letter of [redacted], GP (dated 29 January 2019);
(b)Referral by [redacted] to PlantMed Medicinal Cannabis Clinic (dated March 2020);
(c)Report of [redacted] (Physiotherapist) (dated 23 December 2019);
(d)Letter from [redacted] to [redacted] (dated 1 April 2020); and Letter from [redacted] to [redacted] (dated 7 July 2021)
Having regard to that evidence, such treatment is an extension of the Applicant’s medical and health care. It is prescribed by doctors to replace pharmacological pain relief. Supports more appropriately funded through another scheme, such as Medicare or the pharmaceutical benefits scheme are not intended to be met through the NDIS.[31] Although the line between the two must always be carefully considered and discerned, it is the intention of the legislation that medical matters be funded by the Medicare system. It follows that the Tribunal is not satisfied that there is any proper basis for additional funding to be specified in the Applicant’s SOPS on this basis.
[31] Ibid.
Psychology
The Applicant sought access to a psychologist, funded through the NDIS, because the internal (section 100) and external (AAT) review process had been “destructive” to her thinking and life view. She has not seen a psychologist and there is no evidence before the Tribunal that she has any mental health conditions. If such a condition were to present, the Applicant may access the services of a psychologist via a Medicare mental health plan should her GP so recommend. It follows that the Tribunal is not satisfied that there is any proper basis for additional funding to be specified in the Applicant’s SOPS on this basis.
Glasses, Ophthalmologist and eye surgery
Report of [redacted] (Ophthalmologist) (dated 28 April 2021) stated that the Applicant had excellent vision and no ophthalmic pathology could be detected. The Applicant stated that she needed glasses after an eye operation and now needs replacement glasses because of a cyst on the left side of her brain that affected her vision.[32]
[32] Transcript at p.149, lines 18 to 32.
The Applicant did not draw the Tribunal’s attention to any supporting medical evidence that her vision issues, which she stated had led to her requirement for glasses, are disability-related (rather that arising from long or short-sightedness which is a common condition found in the community and ordinarily treated with eyeglasses). Without evidence to positively satisfy the Tribunal of this, the Tribunal concludes that eyeglasses fall within the exclusion in Support Rule 5.1(b).
The medical evidence available to the Tribunal stated that the Applicant has excellent vision, although the Applicant explained during the hearing that, whilst correct, this statement was misleading as her vision was blurred and required correction with eyeglasses. If the Applicant had produced supporting expert evidence to the Tribunal that Disorder X, or some other disability, has caused an eye issue that requires supports other than regularly used every-day items like eyeglasses for short or long sightedness, the Tribunal may have arrived at a different conclusion. However, the Tribunal is not satisfied that there is any proper basis for additional funding to be specified in the Applicant’s SOPS on the basis of the available evidence. The Tribunal notes that the Respondent may undertake a section 48 review or consider inclusion of this support in a future plan, should evidence become available that demonstrates a disability-related eye condition.
Dietician
The Applicant sought access to a dietician, funded through the NDIS, and had one unproductive experience with a dietician some time prior to the hearing. The Tribunal notes that the Applicant may access the services of a dietician through Medicare should her GP so recommend. It follows that the Tribunal is not satisfied that there is any proper basis for additional funding to be specified in the Applicant’s SOPS on this basis.
Air Conditioning
The Applicant stated during the hearing that she recalled having the cost of air-conditioning units met from her funds and the Respondent submitted that it did not have records of this. As no finding as to additional funds for air-conditioning was sought by the Applicant there is no need to further consider this item.
Car modifications
The Applicant indicated during the hearing that she was not seeking to further modify her car at this stage and would raise this issue with the Agency at an appropriate time in the future if it became relevant.
Further issues
During the hearing the Applicant stated that she sought funding to attend a pain management clinic. This health-related expense is more appropriately funded through the health care system, for the reasons set out above[33]. It follows that the Tribunal is not satisfied that there is any proper basis for additional funding to be specified in the Applicant’s SOPS on this basis.
[33] See discussion relating to pharmaceutical products.
The Applicant expressed concerns both prior to and during the hearing that her goals had not been appropriately recorded or reflected in her plan. Whilst not part of the reviewable decision, the Tribunal notes that a participant is at liberty to update their goals by providing these to the CEO and section 47 of the NDIS Act provides that the updated version is to take effect in the participant’s plan as a result. The Tribunal notes that it would be of assistance if the Applicant were able to connect with the Agency to prepare and submit updated goals.
SUPPORTS FOR WHICH FURTHER ASSESSMENT IS REQUIRED
Bed
The Tribunal accepts the Applicant’s evidence that she would benefit from an appropriate bed. Maximising comfort and access to sleep is essential and this need is supported by the Access Request – Supporting Evidence Form completed by [redacted], General Practitioner, (dated 17 July 2021). As to what is reasonable, the Applicant has had access to funding of $1,300 for an assessment of an appropriate bed since August 2020. However, the Applicant has consistently declined to utilise this existing funding in her plan to access appropriate assessments of her assistive technology needs. Instead, she submitted that she best knew her own needs and was the only person who could select an appropriate bed for herself.[34] The Applicant has identified a bed chosen by her following a recommendation by a local retailer. The clinical or other benefits of the bed identified by the Applicant have not been confirmed by evidence from her medical or allied specialist team. Put another way, whilst the evidence indicates that the Applicant requires a new bed, there is insufficient evidence available to the Tribunal as to the type of bed and likely cost such that the Tribunal could consider this support having regard to the requirements in section 34 of the NDIS Act and the broader statutory context relating to participant’s supports. This has led the Applicant to be in the same position now as she was in August 2020.
[34] Transcript, p.160, lines 31 to 47.
Whilst this beneficial legislative scheme certainly champions a participant’s choice and control in the way they access supports, that is not the same as providing absolute choice and control over the nature of supports. It is for the CEO (and the Tribunal on review) to “approve” a statement of participants supports and, in doing so, to determine which funded supports to “specify” under subsection 33(2) of the NDIS Act. Guidance for doing so is provided in section 34 and in the Supports Rules. Thus, a participant’s choice and control may be exercised, and should inform the process of arriving at the approved SOPS, but subject to the other statutory parameters and limitations relevant to the specification of supports.
There is great benefit in an independent assessor considering the needs of a participant and matching those needs to impartial recommendations for supports for which funding is sought. This expert evidence is invaluable in assisting a decision-maker to determine what may be reasonable and necessary for each individual and does not supplant or undermine that participant’s rights. The absence of such expert evidence leaves the Tribunal with an insufficient evidentiary basis from which to determine what type of bed may be reasonable and necessary in this case. When an assessment has taken place, and sufficient supporting evidence from an appropriately qualified assessor is available, the Applicant will be able to seek funding for the support in the appropriate amount for a bed.
Given the Agency’s obligation to support the Applicant in her dealings with the Agency, it is the intention of the Tribunal that such funding, when identified, would be made available to the Applicant without delay. The Respondent may do so through a review under section 48 of the NDIS Act or otherwise by giving effect to this decision in another appropriate way. As the Applicant is to manage her own funds, she will be responsible for engaging an assessor, and may be able to seek the assistance of her support co-ordinator in order to do so.
It follows that the Tribunal is not satisfied that there is any proper basis for additional funding to be specified in the Applicant’s SOPS for a bed as there is not presently sufficient evidence to determine the correct level of funded support. The Tribunal has made observations and findings below about the funding for assessment of this support.
Adjustable chair/comfortable couch
As with the bed, the Applicant has had access, since August 2020, to the same funding which could include an assessment of an appropriate chair but has not utilised that funding. Again, she submitted that she best knew her own needs but also noted, during the hearing, that she had not found the time to do so, including due to her complex medical needs over the last years.[35] There is insufficient evidence available to the Tribunal as to the type of chair and likely cost such that the Tribunal could consider this support having regard to the requirements in section 34 of the NDIS Act and the broader statutory context relating to participant’s supports.
[35] Transcript, p.182, lines 31 to 38.
Following the reasoning expressed above with respect to the bed, if and when an assessment takes place, and sufficient supporting evidence from an appropriately qualified assessor is available, the Applicant will be able to seek funding for the support in the appropriate amount for the assessed item, be it a chair, couch or other appropriate support.
It follows that the Tribunal is not satisfied that there is any proper basis for additional funding for a chair or couch to be specified in the Applicant’s SOPS. The Tribunal has made observations and findings below about the funding for assessment of these supports.
Home and garden modifications
The Applicant stated during the hearing that her home was too small to modify in accordance with her needs. However, she also stated that she needed a bidet, heightened toilet and handrails, and some changes to levels in her garden. These needs are supported generally by the Report of [redacted], GP (dated 16 June 2018) and the Access Request – Supporting Evidence Form completed by [redacted] (dated 17 July 2021).
However, these needs have not been assessed. As a result, there is insufficient evidence available to the Tribunal as to the recommended modifications and likely cost such that the Tribunal could consider this support having regard to the requirements in section 34 of the NDIS Act and the broader statutory context relating to participant’s supports. The decision under review has provided funding, separate to that for an assistive technology assessment, of $1,500 since the prospect of home modifications was first contemplated in the Applicant’s plan in August 2020. Due to the effluxion of time, it is reasonable to provide for an increase to this amount to reflect the current demand for such assessments and to now allow a one-off figure sufficient for the Applicant’s home modification needs to be assessed. The Tribunal has not arrived at a figure but it is the intention of this decision that sufficient funding be made available, having regard to the enlarged assessment tasks to be undertaken, the previous level of funding and the time that has passed since that figure was included in the funded supports.
When an assessment takes place, and sufficient supporting evidence from an appropriately qualified assessor is available, the Applicant will be able to seek funding for the support in the appropriate amount for the assessed item.
As the Agency is required to support the Applicant in her dealings with the Agency, it is the intention of the Tribunal that such funding, when identified, would be made available to the Applicant without delay. The Respondent may do so through a review under section 48 of the NDIS Act or otherwise by giving effect to this decision in another appropriate way. As the Applicant is to manage her own funds, she will be responsible for engaging the assessor and may be able to seek the assistance of her support co-ordinator in order to do so.
The Tribunal finds that sufficient funding (to replace the previously specified funding of $1,500) for assessment of the Applicant’s home modification needs is a reasonable and necessary support and should be specified in the Applicant’s SOPS.
Mobility Scooter
The Applicant has had access to funding for an assistive technology assessment since August 2020 but has declined to request a report from an Occupational Therapist as to whether and if so which type of mobility scooter was suitable for her needs. The Applicant stated that she had recently received general support from her GP in relation to this support but, as to an assessment, stated during the hearing:
“…this is the problem I have with OTs, that how would anybody know what it is that I need when I know where it hurts me, and what hurts me, and what doesn’t hurt me, and they can’t feel my pain. I have already been through all of that with every expert that I need to discuss with, and I don’t think an OT would really benefit. End of that.”[36]
[36] Transcript, p.202, lines 4 to 10.
She submitted that she best knew her own needs and was the only person who could select an appropriate mobility scooter. When an assessment has taken place, and sufficient supporting evidence from an appropriately qualified assessor is available, the Applicant will be able to seek funding for the support in the appropriate amount for the assessed item. However, the absence of such expert evidence leaves the Tribunal with an insufficient evidentiary basis from which to determine what type of scooter may be reasonable and necessary in this case.
The decision under review has provided funding for an assistive technology assessment, of $1,300 since the prospect of a bed or other items was first contemplated in the Applicant’s plan in August 2020. Due to the effluxion of time, it is reasonable to provision for an increase to this amount to reflect the demand for such assessments and the fact that the scope of the assessment has more recently expanded to include the prospect of a mobility scooter. It is proper now allow funding for a one-off figure assessment of the Applicant’s assistive technology needs. Whilst the Tribunal has not specified an amount, it is the intention of the Tribunal that funding be specified at a level that is sufficient to provide a comprehensive assessment in relation to a bed, chair or couch, scooter and any other assistive technology that the Applicant may require.
The Tribunal is not satisfied that there is any proper basis for additional funding to be specified in the Applicant’s SOPS for a mobility scooter until the appropriate type and cost has been assessed.
ADDITIONAL REASONABLE AND NECESSARY SUPPORTS
Iontophoresis/sweat machine
The Applicant sought to rely on an updated letter from [redacted], Dermatology Registrar at [redacted], to support the funding of an iontophoresis machine (also referred to in the material as a “sweat machine”). The doctor noted that the Applicant suffered from severe hyperhidrosis and was refractory to all previous treatment options tried and supported the Applicant’s funding for her own machine.[37] Where a proposed support has not yet been trialled by a participant, clear evidence is needed that the support will, or is likely to, be both effective and beneficial. A letter from [redacted], GP (dated 21 December 2020) containing his supporting opinion that the Applicant would benefit from iontophoresis treatments supports the clear evidence from [redacted], Dermatology Registrar, that the Applicant’s use of this machine is likely, at least, to be effective and of benefit to address excess and uncontrolled sweating, an aspect of the Applicant’s disability that limits her social and economic participation.[38]
[37] Exhibit 1, Joint Hearing Book, A74, Letter from [redacted], Dermatologist, p.816.
[38] Exhibit 1, Joint Hearing Book, A4.4, Document 4: Letter from [redacted], GP dated 21 December 2020, p.94.
Subsection 34(1)(f) of the NDIS Act precludes a support from being funded under the scheme if that support is more appropriately funded or provide through another general system of service delivery. Support Rules 3.5 and 3.6 refer to the matters to be taken into consideration in determining whether supports relating to a participant’s health meet the criterial in subsection 34(1)(f). Support Rules 7.5 provides that the NDIS will not be responsible for … clinical treatment of health conditions, including ongoing or chronic health conditions or other activities that aim to improve the health status of Australians. A lengthy inclusive list, that identifies General Practitioner, medical specialist and allied health services. The decision in Young[39], and other that have followed it, provide examples of the Tribunal has determining that medical equipment[40] and pharmacological therapies[41] could not be funded under the scheme on the basis that these support the Applicant’s health.
[39] In which it was determined that a portable oxygen concentrator and an insulin pump were more appropriately funded through the health system.
[40] A defibrillator, in McPherson and National Disability Insurance Agency [2021] AATA 4682 (17 December 2021), determined to have been “excluded” from the scheme for slightly different reasons.
[41] Pain-relieving botox injections, in Cox and National Disability Insurance Agency [2022] AATA 3911 (2 November 2022), determined as more appropriately funded through the health system.
Support Rule 7.4 provides that 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.
The line between the included supports defined in Support Rule 7.4 and the excluded supports defined in Support Rule 7.5 is not always simple to discern and required careful consideration for each support. For example, it is not uncommon for a SOPS to specify funding for allied health care to support a participant’s social and economic participation or to provide for consumables which are products that may be used to support a person with a disability to undertake their daily activities. The Tribunal has already determined, in this case, that various medicines, supplements and treatments identified by the Applicant are in the nature of supports for the Applicant’s health conditions and therefore not the responsibility of the NDIS.
Little information had been provided to the Tribunal prior to the hearing about the nature of this machine, and the options for access to it. For example, it was not clear whether a machine was required to be purchased by the Applicant, or whether one could be accessed from a public facility. If the machine was a curative health measure available in a public hospital or clinic, it would be more appropriately be funded through the Medicare system. If the treatment was, objectively, expensive, it may not represent value for money or less expensive alternatives may adequately address the Applicant’s severe hyperhidrosis. The Applicant stated during the hearing that it was possible for a machine to be trialled in a hospital, but that she would be waiting a long time for this to occur and that the existing medical evidence already supported this as a reasonable and necessary support.[42]
[42] Transcript, p.68 to 71.
During the hearing the Applicant accepted that she had not trialled this treatment but stated that she was aware that a machine cost about $600, because she had been informed of this by her doctor, and it would not be practical for her to access a machine in a hospital or clinic, both because she would have to travel extensively to do so and because the machine was designed to provide relief as needed. Only her own machine would provide the practical benefit needed and be reasonably accessible to her. The Respondent did not put to the Applicant that the true cost would be greater, nor that the machine would be accessible through the public health system. The Respondent instead relied on the submission that it is a matter for the Applicant to make out her own case.
In order that the Tribunal may arrive and the correct or preferable decision the Respondent is required to provide assistance to the Tribunal. The Respondent did not challenge the Applicant’s evidence about her symptoms or the support identified by her doctors to assist her, not did the Respondent provided any further evidence about this issue, leaving the Tribunal to make a decision based on the limited available evidence. This evidence included the Applicant’s sworn evidence given during the hearing about her own enquiries as to cost and availability which was unchallenged. The Tribunal has carefully considered the limited evidence available and is satisfied, on balance, that the Applicant has made out her case with respect to this support.
The Applicant’s GP and dermatological specialist both recommend iontophoresis as a mechanism of last resort to alleviate physical limitations imposed by her hyperhidrosis and the Tribunal accepts that evidence is consistent with a finding that access to the machine is necessary to assist the Applicant in management of her symptoms, which will in turn assist her to participate in the community and in her economic participation. Whilst access to the machine is not directly delivered or supervised by clinically trained or qualified health practitioners (as contemplated by Support Rule 7.4) it is indirectly supervised and clearly recommended by her clinicians. It is a maintenance support, and it is disability related. For these reasons, in the circumstances of this case, the Tribunal finds that, in determining whether a symptom-relieving support is more appropriately funded through another system, the iontophoresis machine is a support that is not excluded by Support Rule 7.5 and is within the contemplation of Support Rule 7.4.
The Applicant’s request to access a piece of technology designed to alleviate symptoms in order to facilitate her social and economic participation is akin to the type of relief from symptoms that the Applicant may receive from attending a physiotherapist or other allied health care professional. The point of difference in requesting funding to purchase the machine itself is that the technology would be available in the Applicant’s home as needed, and without the need to incur the costs of consulting with an allied health care professional, travel or time away from her part-time work. The technology differs from regular medication, or equipment used to address acute or ongoing health concerns only. It is not curative. It addresses the Applicant’s disability, rather than her health conditions. There is insufficient evidence before the Tribunal to demonstrate that access to this support would be available through the health system and that, even if it were, that intermittent and remote access would provide the reasonable and necessary support the Applicant required. The Tribunal is therefore satisfied that this support is not precluded from funding by operation of Support Rule 7.5 or subsection 34(1)(f) more generally and otherwise meets the requirements of subsection 34(1) of the NDIS Act.
The sum of $600 was advised by the Applicant’s doctor and appears to be reasonable, having regard to the fact that provision of funding so that the Applicant can access own machine will leave the choice and control as to her access of this support. The Respondent drew to the attention of the Tribunal the fact that the Applicant’s funded supports included $1,300 for assessments, and that an Occupational Therapist could assess the Applicant using those funds to determine whether the machine was recommended. This ignores the evidence that the machine has already been recommended by the Applicant’s doctors, and that an assessment may cost more than the support itself, which may offend the statutory requirement that a support be value for money.
The Respondent submitted that sections 24 and 25 of the NDIS Act have not been satisfied in relation to the Applicant’s hyperhidrosis, noting that this was not a condition for which the Applicant sought access to the scheme,[43] and that it somehow followed that the supports for hyperhidrosis could not be funded unless the Applicant demonstrated that this condition would have also met the disability requirements in sections 24 and 25 of the NDS Act.
[43] RSFIC, p.22, including footnote 56.
Access to the NDIS is not granted on the basis of any particular condition or impairment. Rather, access is granted to the person in circumstances where that person has satisfied a range of criteria. Once access is granted, there is no express statutory relationship between the Participant’s plans under Part 2 and becoming a participant under Part 1 of Chapter 3 of the NDIS Act. This makes sense. A person’s needs, diagnoses, conditions and impairments may change over time. There is no requirement, and no mechanism, to re-qualify for access each time circumstances change. Other than in certain instances (not relevant here) access to the NDIS is for life. It is therefore irrelevant that the Applicant’s hyperhidrosis was not a condition or impairment she identified at the time she sought access, or not one that was then considered by the Respondent.
Part 2 of Chapter 3 of the NDIS Act provides a self-contained code for the preparation of participant’s plans, including for replacing those plans when circumstances change. Funded supports are to be reasonable and necessary, and Support Rule 5.1 makes clear that they are to be related to the person’s “disability”. That term is not defined and should be given its ordinary meaning, and more is said about this below. It would have been a simple matter for legislative drafting to extend a further criteria to reasonable and necessary supports by stipulating that such supports must also be referable to the “participant’s impairment”. That term is (relevantly) defined, in section 9 of the NDIS Act, to mean “an impairment in relation to which the participant meets the disability requirements”. However, reference to those words, or words to that effect, are absent from Part 2 of Chapter 3. Support Rule 5.1 refers to the person’s disability, but not the “participant’s impairment”. Had it been the statutory intent of this scheme that funded supports which were otherwise thought to be both necessary and reasonable also had to be related only to an impairment which had already been identified as satisfying the access criteria, or which would in any event so satisfy, this could have been simply reflected in Part 2 or in Support Rules. The fact that this language is not used in Part 2 of Chapter 3 is consistent with the notion that, once the threshold question of access has been answered in the participant’s favour, the determination of which supports are to be funded under s.33 is a separate process.[44]
[44] Mulligan v National Disability Insurance Agency [2015] FCA 544, [34].
In the recent decision of HRZI and National Disability Insurance Agency (‘HRZI’)[45] the Tribunal considered this issue in detail. Careful examination was undertaken by the Tribunal, in that case, as to the interplay between the parts of the NDIS Act dealing with access and supports and to the (intentionally) broad concept of disability when considered in the context of reasonable and necessary supports. The Tribunal considered a submission, made by the Respondent Agency, in terms similar to that made by the Respondent in this case in relation to supports for the Applicant’s hyperhidrosis, and concluded:
“…the NDIA’s submission [that] a support is a thing that gives aid or assistance to address an impairment of a particular kind, namely one which satisfies the disability requirements or the early intervention requirements or a participant’s impairment, cannot be accepted. There is no express or implied limit to, or exclusions from, supports which may be provided or funded in the circumstances of any case where the support is related to the participant’s disability and the statutory thresholds set out in s 33 and s 34, and in the applicable Supports Rules, are satisfied. When dealing with a specific kind of support in WRMF,[46] the Court concluded the legislative scheme intends no such limits or exclusion, and no such hard lines to be drawn.[47]”
[45] HRZI and National Disability Insurance Agency [2023] AATA 481.
[46] National Disability Insurance Scheme v WRMF [2020] FCAFCA 79.
[47] Ibid, 143.
In arriving at that conclusion, the Tribunal in HRZI made the following findings and observations (paragraph numbers footnoted):
(a)The NDIS Act, generally, and the provisions of Parts 1 and 2 of Chapter 3, in particular, have a remedial and beneficial purpose.[48] While it has been said remedial and beneficial legislation should be accorded a "fair, large and liberal interpretation", rather than one which is literal or technical, and if a particular section is ambiguous, it should be given a broad construction, so as to effectuate the beneficial purpose which it is intended to serve, attention must be squarely focussed on the meaning of the words used as to commence the process of construction by posing the type of construction to be afforded – liberal, broad or narrow – may obscure the essential question regarding the meaning of the works used.[49] The provisions which are relevant to the matters raised by the parties in respect of the provision or funding of supports should, therefore, be given as generous a construction as the actual language of those provisions permits.[50]
(b)Once a person is granted access to the NDIS, there is no provision for them to apply again should they suffer new impairments which cause disability in the context of any change in medical conditions they might experience. Changes of this kind are to be dealt with in the context of the participant’s plan.[51]
(c)There is an important distinction drawn between a person’s disability and the impairment or impairments to which it is attributable. [110] This distinction was explored in the decisions of Mortimer J in National Disability Insurance Agency v Davis[52] and Mulligan v National Disability Insurance Agency[53] and the concept of impairment in the disability requirements of the NDIS Act was recently considered by the Full Court in National Disability Insurance Agency v Foster[54]. However, this particular issue of construction was not addressed, in ratio, in Mulligan, Davis or Foster.[55]
(d)While s 24(1) operates on concepts of ‘impairment’, the concept of impairment enables assessment of the severity and permanency of a person’s condition, and of the effects of that condition.[56] The person’s condition in this context, adopting the statutory language, may be equated with their disability rather than a particular medical condition.[57]
(e)Thus, it can be understood, conceptions of ‘disability’ and ‘impairment’ under the NDIS Act should not be confused as interchangeable. A person’s disability may not be confined to or adequately described as ‘an impairment’ to which it is attributable. The disability may be multifactorial and attributable to more than one impairment, as the plain words in s 24(1)(a) clearly contemplate.[58]
(f)Nonetheless, conceptions of ‘disability’ and ‘impairment’ are closely inter-related: causally, experientially, functionally, progressively and legally.[59] ‘Disability’ refers to the overall effect of a person’s impairments on their capacity to function and to participate in all aspects of life, whereas ‘impairment’ refers to loss (including reduction) of or damage (including variation) to a person’s intellectual, cognitive, neurological, sensory or physical function. Without resorting to relativistic enquiry, a person’s disability is attributable to functional impairment or impairments, including what the person can and cannot do, as well as barriers the person experiences which impede their social or economic participation, or their participation in personal or community life.[60]
(g)the essential relational nexus between the support and the participant’s disability is a matter of fact and degree to be decided on the basis of relevant probative materials.[61]
[48] HRZI, [101].
[49] New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50, per French CJ, Kiefel, Bell and Keane JJ, [32]-[33].
[50] Legal Services Board v Gillespie-Jones [2013] HCA 35, per French CJ, Hayne, Crennan and Kiefel JJ at [55]; see also National Disability Insurance Agency v. Foster [2023] FCAFC 11, per Derrington J, with whom Katzmann and Perry JJ agreed, [30]-[31] as to the approach to be taken in interpreting the NDIS Act having regard to context, general purpose and policy.
[51] HRZI, [105].
[52] [2022] FCA 1002.
[53] [2015] FCA 544.
[54] National Disability Insurance Agency v Foster [2023] FCAFC 11, per Derrington J, with whom Katzmann and Perry JJ agreed, especially at [94].
[55] HRZI, [113].
[56] Ibid, [114].
[57] Mulligan v National Disability Insurance Agency [2015] FCA 544 at [51-55]; National Disability Insurance Agency v Davis [2022] FCA 1002, [115].
[58] HRZI, [115].
[59] Ibid, [117].
[60] See WRMF, [141] and [151]; Davis, [69].
[61] HRZI, [170].
Having carefully and thoroughly considered the extensive submissions of the parties and all relevant Federal Court and Full Federal Court authorities, the Tribunal in HRZI arrived at the inevitable conclusion that the concept of disability, used deliberately to qualify reasonable and necessary supports to be funded under the scheme in Part 2 of Chapter 3, is broader than the concept of (one or more) impairment to which the person’s disability is attributable in Part 1 of Chapter 3 and noted:
(a)When specifying the reasonable and necessary supports that will be funded for a participant, the “statutory question relating to supports, and fact finding for the purposes of s 33(2), is directed to the participant’s disability and related support needs.”[62]
(b)it is the person’s disability, including the impairments to which it is attributable, on which they qualify as a participant, which informs their disability support needs and the reasonable and necessary supports which may be provided or funded under the participant’s plan. The reasonable and necessary supports which will be provided or funded for a participant are in respect of the disability which qualifies the person as a participant in the NDIS.[63]
[62] HRZI, [139].
[63] Ibid, [1].
It is apparent from the context that the Tribunal in HRZI intended “the disability which qualifies the person as a participant in the NDIS” to be read as the disability which currently qualifies the person in that way[64]. The precise disability now experienced by a participant may not have been present at the time access was granted or may have evolved. The ongoing existence of disability continues to qualify the participant such that their participation cannot be revoked under s.30 of the NDIS Act and for as long as that disability continues, and related supports are determined by reference to the support provisions in Part 2 of Chapter 3 of the NDIS Act. There is no necessity to apply the statutory test in section 24 when determining whether such reasonable and necessary supports and to do so would unnecessarily narrow the scope of sections 33 and 34 of the NDIS Act. In this case, the Tribunal has arrived at the same conclusion as in HRZI and respectfully adopts the same reasoning with respect to disability and supports.
[64] HRZI, [148].
The Tribunal finds that funding of $600 for an iontophoresis machine is related to the Applicant’s disability, as is made clear by the medical evidence, and represents a reasonable and necessary support that should be specified in the Applicant’s SOPS. Whether additional funding is required as a result, or whether, instead, this is a support of a capital nature that can be funded from existing supports, is a matter for the Agency on reconsideration although the Tribunal notes that the Applicant’s plan currently provides core supports of $36,638.45 for a six-month period and, whilst this funding is flexible, it has much work to do for the Applicant having regard to her other needs. It is the intention of the Tribunal that the Agency ensure sufficient funding is available for this one-off purchase to be made as a funded support in the sum of $600 without compromising the Applicant’s access to other reasonable and necessary supports.
An observation about flexible supports.
The Tribunal has noted that the Applicant has flexible funding that can be used in a variety of ways and that she has not utilised funding made available to date, even on a flexible basis. Despite this, the Respondent did not contend that a lower level of flexible funding was appropriate, and the Tribunal has accepted that support co-ordination may assist the Applicant to connect with various funded supports. In reaching a level of satisfaction, based on the available evidence, that the relevant levels of current flexible funding, but no more, are reasonable and necessary, the Tribunal has had regard to the Applicant’s evidence that she was most concerned that funding be available from the correct “bucket”, and that (other than for transport) she considered that overall amount of funding to be sufficient to meet her disability-related needs. The parties each made consistent submissions that it was correct and preferable that the Applicant’s access to flexible supports continue at the currently funded levels. The Tribunal had not identified any funding which is inaccessible to the Applicant because it has been inappropriately allocated.
The issues traversed in these reasons may assist the Applicant in accessing supports that are reasonable and necessary but which she has not, to date, accessed. This, in turn, may lead to the identification of a need for a greater level of flexible funding when she is able to fully access those reasonable and necessary supports. The Tribunal observes that the existing funding, whilst flexible, is still finite and that there are a number of ways in which the Applicant can choose to use available funds that she has not (yet) been accessing. Whilst the Tribunal has not been positively satisfied that current funding levels are insufficient to meet the Applicant’s needs, further information and experience may be relevant to the Applicant’s support needs identified in her next re-assessment.
When the re-assessment occurs, in 12 months from the date of this decision, the Applicant will be better placed to report to the Respondent as to her current level of utilisation of and need for funded supports, which is likely to assist in the facilitation of a SOPS prepared with the Applicant and approved by a delegate of the Respondent.
Non-publication issues
On 13 October 2021 the Tribunal made various orders, pursuant to s.35 of the AAT Act, regarding the conduct of, and non-publication of information relevant to, this review. These included orders in standard terms for the de-identification of information that may identify the Applicant, for the use of pseudonyms (paragraph 2) and for the hearing to take place in private (paragraph 4). In addition, the following order was included as paragraph 5, “Any decision relating to this matter (including interlocutory decisions) must not be published except to the parties.” Paragraph 3 contained a broad prohibition of the publication of all information provided to the Tribunal. These orders were expressly made “until further order” and, prior to finalisation of the decision in this case, it is proper to revisit one aspect of those orders. Orders made pursuant to s.35 are frequently made “until further order” so that, later in the proceedings, it is easier to discern whether the orders should remain in place or be varied having regard to the issues raised in the review and the material before the tribunal at the time of reconsideration of non-publications issues. In this case, the Tribunal notes that these interlocutory orders went well beyond the de-identification of the Applicant’s personal details and provided, on an interlocutory basis, for complete suppression of all aspect this review, including this final decision and reasons.
The parties have been given an opportunity to make written submissions as to whether the decision and reasons should be published, albeit retaining the de-identifying steps provided for in the orders. The Respondent did not oppose the setting aside of the order, and the Applicant made submissions to the effect that the order should remain in place.
Section 35(5) provides that the “basis of consideration” as to whether such directions are to be given is the “principle that it is desirable:
(a)That hearings of proceedings before the Tribunal should be held in public;
(b)That evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and
(c)That the contents of document lodged with the Tribunal should be made available to all the parties.”
However, the Tribunal is also to pay “due regard” to any reason for making such orders, including the confidential nature of the information. A balance is to be struck, with the starting point being publication, and the competing considerations being confidentiality of information and any other relevant factors to be set against the desirability that the Tribunal undertake a public, rather than a private, review.
The non-publication order in paragraph 5 of the 21 October 2021 orders goes some considerable distance beyond providing for the protection of the confidential nature of the information about the Applicant. It prohibits publication of the Tribunal’s final decision, or any interlocutory decision. It is not entirely clear what features of this case obviously set it apart from others such that this level of total confidentiality should be provided for the Applicant. An order was made, over a year ago, to provide anonymity to the Applicant and, so long as the decision and reasons are made publicly available with anonymising adjustments, whatever concerns led to the making of that order can continue to be met through the application of paragraphs 1 to 4 of the orders, with any necessary adjustments to allow for de-identified publication of this final decision and reasons. Now that all issues and material are before the Tribunal there is no basis to maintain the broader non-publication order contemplated in paragraph 5. However, the Tribunal does not consider it is necessary or otherwise in the public interest to revoke the order with respect to any earlier interlocutory decisions, which will remain the subject of the existing s.35 order.
In her written submissions, the Applicant stated that her rare disease would lead to her being readily identified if the reasons were published. She submitted that she was “protective of her life” and would be “very afraid” if the reasons were published. The Tribunal acknowledges these serious concerns. However, the Tribunal also notes that all of the Applicant’s personal details are anonymised. The purpose of the direction replacing her name with a pseudonym would be rendered somewhat meaningless if the decision is not otherwise made public. A neutral description of the Applicant’s primary medical diagnosis, and de-identification of her medical practitioners, will more than adequately meet the broadest interpretation of the other s.35 orders and address the Applicant’s serious concerns whilst having regard to the principle that proceedings (and the decisions made as a result of them) should, so far as is possible and appropriate, be public.
For these reasons, the Tribunal has determined that it is appropriate to vacate the part of paragraph 3 and 5 of the s.35 orders made on 21 October 2021 that restricts publication of the final decision in this review application. Steps have been taken in the preparation of these reasons to ensure that the balance of the s.35 orders made in this review, providing for the de-identification of the Applicant, have been given full effect.
CONCLUSIONS
The Tribunal has found that correct and preferable decision in this case is to set aside the decision under review and to remit the matter with a direction that the approved SOPS for the Applicant specifies:
(a)funding sufficient to allow for the following one-off expenses:
·$600 for an iontophoresis machine;
·funding sufficient for assessment of the Applicant’s home modification needs (to replace previous funding of $1,500); and
·funding sufficient for assessment of the Applicant’s assistive technology needs (to replace previous funding of $1,300);
(b)that the Applicant’s funds are to be self-managed and that regular contact, every three months, take place between the Agency and the Applicant as a safeguard for the Applicant;
(c)the re-assessment date is 12 months after the date of this decision; and
(d)that the reasonable and necessary supports and other aspects of the SOPS as set out in the decision under review (as re-made on 16 December 2022) are replicated on a pro-rata basis until the re-assessment date.
The Tribunal notes that if assessments of the Applicant’s home modification and assistive technology needs take place, and sufficient supporting evidence from appropriately qualified assessors is available, the Applicant may seek additional funding for those supports. The Respondent may provide such funding without delay through the process set out in section 48, of the NDIS Act or otherwise by giving effect to this decision in another appropriate way. As the Applicant is to manage her own funds, she will be responsible for engaging the assessor and may seek the assistance of her support co-ordinator to do so.
DECISION
The Tribunal sets aside the decision under review and, remits the matter for reconsideration in accordance with a direction that the approved SOPS specifies:
(a)funding sufficient to allow for the following one-off expenses:
·$600 for an iontophoresis machine;
·funding sufficient for assessment of the Applicant’s home modification needs (to replace previous funding of $1,500); and
·funding sufficient for assessment of the Applicant’s assistive technology needs (to replace previous funding of $1,300);
(b)that the Applicant’s funds are to be self-managed and that regular contact, every three months, take place between the Agency and the Applicant as a safeguard for the Applicant;
(c)the re-assessment date is 12 months after the date of this decision; and
(d)that the reasonable and necessary supports and other aspects of the SOPS as set out in the decision under review (as re-made on 16 December 2022) are replicated on a pro-rata basis until the re-assessment date.
I certify that the preceding 147 (one-hundred and forty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Buxton
.................................[SGD].......................................
Associate
Dated: 5 April 2023
Dates of hearing: 6 and 7 December 2022 Date final submissions received: 17 March 2023 Applicant: In person Counsel for the Respondent:
Solicitors for the Respondent:
R. Sproule
M. King (Australian Government Solicitor)
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