YHPS and National Disability Insurance Agency - [2021] AATA 5456

YHPS and National Disability Insurance Agency [2021] AATA 5456 (15 December 2021)
Division:General Division
File Number(s): 2020/6004
Re:YHPS
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

WRITTEN REASONS FOR ORAL Decision
Tribunal:Deputy President J W Constance

Date:15 December 2021
Date of written reasons: 9 February 2022
Place:Sydney

The reviewable decision made 22 May 2020 is set aside and in substitution it is decided that the Agency fund the provision of support for the Applicant by a Registered Nurse for 4.8 hours per day, seven days per week from 15 October 2019.

.............................[SGD]...................................
Deputy President J W Constance

Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – funding for Registered Nurse – consideration of sections 33 and 34 – whether supports represent value for money – sustainability of the Scheme – whether the support will be or is likely to be effective and beneficial for the participant having regard to current good practice – decision set aside and substituted
Legislation
National Disability Insurance Scheme Act 2013 (Cth), ss 33, 34
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Cases
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Milburn and National Disability Insurance Agency [2018] AATA 4928
WRITTEN REASONS FOR ORAL DECISION ON 15 DECEMBER 2021
Deputy President J W Constance
9 February 2022

Part 1: Introduction – Outline of Scheme, Legislation and Relevant Principles……[3]

Part 2: Evidence and Findings of Fact…………………………………………………….[14]

Part 3: Reasoning………………………………….………………………………………….[34]

Part 4: Conclusion.……………………………………………………………………………[52]

PART 1
Introduction, Outline of Scheme, Legislation and Relevant Principles
introduction

There is no dispute that the Applicant, Mr B, requires the care of a Registered Nurse and/or Disability Support Workers 24 hours per day, seven days per week. The issue between Mr B and the Respondent, the National Disability Insurance Agency (the Agency), is how that care should be provided.
The Agency argued very strongly that I should find that it is appropriate that the care Mr B needs should be delivered in a manner described as the Delegated Model of Care. However, in considering the care which should be provided to Mr B, it is important to keep in mind that the issue for consideration is what is the reasonable and necessary support to be provided to Mr B as an individual, not which one of two competing so-called, models of care is appropriate. My decision in this matter relates only to the needs of Mr B taking into account his disabilities, his health conditions and the environment in which he lives. It should not be read as an endorsement of a particular model of care in other circumstances.
Mr B receives funding for his care under the National Disability Insurance Scheme (the Scheme). The Scheme was established by the National Disability Insurance Scheme Act 2013 (Cth) (the Act) and is administered by the Agency.
Mr B is 46 years old. He was born with Down Syndrome and a club foot. The latter condition has caused him to have limited…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading YHPS and National Disability Insurance Agency

Details

AGLC: YHPS and National Disability Insurance Agency [2021] AATA 5456
Case: [2021] AATA 5456
Decision Date: 15 December 2021

CaseChat Overview and Summary

This matter concerned an application by YHPS (the applicant) against a decision of the National Disability Insurance Agency (the respondent) regarding funding for supports for a participant, Mr B. The dispute centred on whether funding for a Registered Nurse was a reasonable and necessary support under the National Disability Insurance Scheme (NDIS). The case was heard by Deputy J W Constance P.

The court was required to determine whether the proposed Registered Nurse support met the criteria for reasonable and necessary supports as outlined in sections 33 and 34 of the National Disability Insurance Scheme Act 2013 (Cth). Specifically, the court had to consider whether the support represented value for money, would be effective and beneficial for the participant having regard to current good practice, and was appropriately funded by the NDIS rather than other service delivery systems.

The court's reasoning focused on the statutory framework for determining reasonable and necessary supports. It acknowledged the importance of balancing the participant's choice and control with a nationally consistent approach to funding. The court applied the criteria in section 34, which requires satisfaction that a support will assist the participant to pursue their goals, facilitate social and economic participation, represent value for money, be effective and beneficial, take account of informal support networks, and be most appropriately funded by the NDIS. The court found that the evidence, particularly from Ms M, a Registered Nurse and Care Service Manager with extensive experience, supported the necessity of the Registered Nurse support for Mr B, who had profound physical disabilities with complex needs.

The court set aside the previous decision of the National Disability Insurance Agency and substituted it with an order approving the funding for the Registered Nurse support.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mrs B impressed me as an honest witness and I accept her evidence.2.2 Evidence of Ms M, Registered Nurse and care service Manager Ms M is the Care Service Manager at the shared accommodation. She provided statements dated 1 December 2020[19] and 3 March 2021[20] and gave evidence at the hearing.[19] Exhibit JT1 at 237.[20] Exhibit JT1 at 289. For almost 44 years Ms M has been a Registered Nurse under the Nursing and Midwifery Board of Australia and holds approval by the Australian Health Providers Regulatory Advisor. Ms M’s experience and other qualifications include:·qualifications in Generalist Nursing, Paediatric Nursing and Midwifery;·College of Nursing qualifications in Women’s Health, Advanced Midwifery and Management;·Bachelor of Health, University of Western Sydney;·employment in NSW Health management, General Practice, Aged Care and the Disability Sector;·extensive experience in clinical governance and health management;·Training Facilitator for Disability Support Workers engaged under TAFE traineeships and placed at the shared accommodation. Ms M has been employed full-time as the Care Service Manager (the most senior nursing position) at the shared accommodation since early 2017. Ms M described the shared accommodation and her role:[The shared accommodation] is a small facility that provides respite and accommodation to people with profound physical disabilities with complex needs. [The shared accommodation] has the capacity for six people in the permanent accommodation and six people in the respite facility. [The shared accommodation] is a charity that employs a part-time CEO who works 2 days a week and a Financial Manager who works 2 days a week.My general duties in this role include but are not limited to:(a)Providing leadership and direction in client care planning and management within [the shared accommodation].(b)Applying work practices that comply with relevant legislation and [the shared accommodation’s] Policies and Procedures.(c)Liaising with [the shared accommodation] via ……. the CEO, for the clinical governance that applies to provision of care in the delivery of services to [the shared accommodation] residents.(d)Attend to all the responsibilities of the Registered Nurse during the day and I manage other registered nurses in those responsibilities across all three shifts. When I refer to all three shifts, I am referring the 24-hour period across a full day which is divided into three 8 hour shifts. Across each shift, a Registered Nurse is rostered to provide Registered Nursing care to each resident according to their individual needs. Ms M has known Mr B since February 2017. Mr B was already living at the shared accommodation when Ms M commenced her employment as the Senior Registered Nurse. Ms M prepares and undertakes Mr B’s care plan and audits his care in terms of clinical governance. She liaises on his behalf with medical staff and allied health and maintains communication with his parents. Ms M described Mr B’s disabilities as follows:[Mr B] was born with a genetic disorder called Down syndrome. Due to this, [Mr B]:[personal information redacted].[21] [21] Exhibit JT1 at 239-240; referenced to annexures omitted.

Decision

Reasons for decision

Subsection 33(5) provides:(5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must: (a) have regard to the participant's statement of goals and aspirations; and (b) have regard to relevant assessments conducted in relation to the participant; and (c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and (d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and (e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and (f) have regard to the operation and effectiveness of any previous plans of the participant. Matters of which the decision-maker must be satisfied in relation to the funding or provision of supports Subsection 34(1) provides:(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. It is to be noted that all these conditions must be satisfied in relation to each support. In McGarrigle v National Disability Insurance Agency the Federal Court said:Therefore, what is entered in a plan as a support becomes a determinative factor in the administration of the scheme. As the respondent submitted, by s 33(3), supports may be generally described or may be specifically identified. Either way, the function being performed on review by the Tribunal is to approve, vary or modify the supports as set out in a participant plan. In performing that function, the Tribunal must have regard to the matters set out in s 33(5), and form its satisfaction in accordance with s 34.[14][14] [2017] FCA 308 at [85].National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)

Ratio Decidendi

Legal Principle Established

I acknowledge submissions of the Solicitor for the Agency in an earlier application to the Tribunal[4] setting out the various provisions of the Act, Rules and Guidelines which provide the framework for determining the matters in dispute in this application. I am grateful for the assistance of those submissions, which form the basis of the content of this section.[4] See Milburn and National Disability Insurance Agency [2018] AATA 4928.Preparation of a participant’s plan The Chief Executive Officer of the Agency is required to facilitate the preparation of a participant’s plan.[5] The plan must include:·the participant’s statement of goals and aspirations; and ·a statement of participant supports prepared with the participant and approved by the Chief Executive Officer.[6]It is to be noted that the statement of goals and aspirations is a statement by the participant and does not require the approval of the Chief Executive Officer. The statement of participant supports must specify the reasonable and necessary supports (if any) that will be funded under the Scheme.[5] Section 32 of the Act.[6] Section 33 of the Act. The provisions of the Act giving the participant alone the right to state his or her goals and aspirations and at the same time requiring the Chief Executive Officer to work with the participant to prepare the statement of supports, and then to approve those supports which will be funded, “strikes a balance between two of the Act’s objects:(a)the need to enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports, and(b)the facilitation of a nationally consistent approach to the access to, and planning and funding of, supports for people with disability.”[7][7] Milburn and National Disability Insurance Agency [2018] AATA 4928 at [11]; the objects of the Act are set out in section 3 of the Act.Implementing a plan The plan comes into effect once the Chief Executive Officer has received the participant’s statement of goals and aspirations and approved the statement of participant’s supports.[8][8] Subsection 37(1) of the Act. Money received by or on behalf of a participant must be spent in accordance with the participant’s plan.[9] An amount paid under the Scheme in respect of reasonable and necessary supports funded in accordance with a participant’s plan is referred to in the Act as the “NDIS amount.”[10][9] Subsection 46(1) of the Act.[10] Section 9 of the Act.The objects of the Act The objects of the Act set out in section 3 make particular reference to the purpose of providing reasonable and necessary supports. Subsection 3(1) provides, in part:The objects of this Act are to:…(c) support the independence and social and economic participation of people with disability; and (d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and (e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and (f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and (g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and (ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and (h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability;…