Young and National Disability Insurance Agency
[2021] AATA 1555
•2 June 2021
Young and National Disability Insurance Agency [2021] AATA 1555 (2 June 2021)
Division:National Disability Insurance Scheme Division
File Number(s): 2019/7895
Re:Mandie Young
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:2 June 2021
Place:Sydney
The decision under review is set aside and substituted with the decision that:
(a)the Applicant should be funded for:
(i)4 hours of personal care per day,
(ii)48 hours of counselling per year with 4 hours of writing per year,
(iii)15 hours of Level 2 Support Coordination,
(iv)support for continence products as per the assessment of Continence Nurse Jane Clark (16 April 2021).
(b)Assistive Technology Assessments should be considered (where already provided) or conducted/funded in relation to the Applicant’s claims for:
(i)a hoist and sling system compatible with the Applicant’s i-care electric bed,
(ii)a shower commode,
(iii)a door wedge for use in the bathroom,
(iv)a Batec power add-on for existing manual wheelchair and associated accessories which include off road tyres, backrest and battery,
(v)changes to or adaptations of the Applicant’s motor vehicle, and
(vi)the trial of one form of “alternate” therapy drawn from the list of yoga, pilates, horse therapy, Zumba dance classes, alternate diet arrangements, arts/self-expression therapy.
...............................[sgd].........................................
Chris Puplick AM, Senior Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – whether claimed supports are reasonable and necessary – where certain supports not subject to internal review – Tribunal has no jurisdiction to consider such supports – where supports agreed – where supports agreed conditionally – where supports declined for insufficient evidence as reasonable and necessary – where supports agreed to be excluded – where supports are contested as to being before the internal review process – decision under review set aside and substituted
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth) s 34, 37, 48, 99, 100
CASES
NNXF and National Disability Insurance Agency [2019] AATA 5552
QDKH and National Disability Insurance Agency [2021] AATA 922
SECONDARY MATERIALS
NSW Health and the Arts Framework, Improving the health of the community through integrating The Arts into the design and delivery of health services and public health messaging: Ministerial Taskforce on Health and the Arts, Report of the NSW Ministerial Taskforce on Health and the Arts (April 2016): The PAtH Forward – Partnering Arts to Health: FOR DECISION
Chris Puplick AM, Senior Member
2 June 2021
BACKGROUND
The National Disability Insurance Scheme Act 2013 (Cth) (the Act) establishes a scheme whereby persons with disability (disabilities) can, in accordance with the provisions of the Act have a Plan developed to assist them in the management of their disability (disabilities).
Ms Mandie Young (the Applicant) had such a Plan developed which came into effect on 8 March 2019.
Any National Disability Insurance Scheme (NDIS) Plan, once it has come into effect cannot be varied, however, it may be terminated and replaced with another Plan pursuant to section 37 of the Act. It may also cease if the participant ceases to be a participant in the scheme.
Subsection 48(1) of the Act provides that a participant may, at any time, “request that the CEO[1] conduct a review of the plan”.
[1] Subsection 159(1) of the Act establishes the position of the Chief Executive Officer (CEO) as the person responsible for the day-to-day administration of the National Disability Insurance Agency (NDIA) (the Agency).
On 11 March 2019 the Applicant apparently spoke to an officer of the National Disability Insurance Agency (NDIA) (the Agency) and expressed her concerns about the level of funding for her Plan with particular reference to the decision of plan management and the level of funding for her support worker.[2] It was agreed by the Respondent at the hearing that this should be taken as having constituted, in effect, a request for a review of the Plan since an oral request fulfils the requirements of subsection 48(1).
[2] Tribunal documents (T-documents) at 83.
Following this conversation, the Respondent records:
Action taken: Advised that another unscheduled plan review would need to take place for funding changes. However, if only requesting to change plan management style, could do light touch review through LAC. Mandie wanted to get in contact with planner to discuss her needs and was advised to wait for plan implementation meeting if she wishes to raise concerns with someone.[3]
[3] Ibid at 84.
Obviously some consideration was given to this initiative, because on 13 June 2019 the Agency wrote to the Applicant acknowledging that she had made a request for specific additional items of support in which it proposed three options to her, one of which was to seek an unscheduled plan review under section 48 of the Act.[4]
[4] Ibid at 6. It is unfortunate that only part of this letter was provided by the Agency to the Tribunal so the Tribunal cannot assess if any further advice or commitments were given by the Agency.
On 18 June 2019 Ms Young submitted a written request for such a review.[5] In her application she set out additional resources which she claims are necessary for her to be more adequately supported under the Scheme and which should be included in a revised Plan.
[5] T1.2B, T-documents at 9-21.
Subsection 48(2) of the Act provides that the CEO of the NDIA (the Respondent) “must decide whether or not to conduct the review within 14 days after receiving the request”. The subsection goes on to provide that “If the CEO does not make a decision within that period, he or she is taken to have decided not to conduct the review”.
The 14-day period in question concluded on 2 July 2019 and, as the CEO had not made a decision on the Applicant’s request, it is taken that a decision has been made not to review the Plan.
Subsection 99(1)(Item 6) of the Act deems such a decision to be a reviewable decision and pursuant to paragraph 100(5)(b) the Applicant’s request was referred to a delegate of the CEO who, under subsection 100(6) must “as soon as reasonably practicable” make a decision to confirm or vary the reviewable decision or to set it aside and substitute a new decision.
There is no definition in the Act of precisely what “as soon as reasonably practicable” means in terms of specified days or time periods.
Subsection 25(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) provides that:
(5) For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing.
In the matter of NNXF and National Disability Insurance Agency[6] Tribunal President Justice Thomas and Deputy President Britten-Jones[7] held that if it does not appear that a decision has been made “as soon as reasonably practicable” under subsection 100(6) then it is to be taken that the reviewable decision has been affirmed.[8]
[6] [2019] AATA 5552.
[7] Deputy President Forgie dissenting.
[8] NNXF and National Disability Insurance Agency [2019] AATA 5552 at [108-112], [126], [137-138].
Under section 103 of the Act, decisions made under subsection 100(6) are decisions which may be reviewed by this Tribunal.
On 2 December 2019 the Applicant applied for a review of the “decisions” made by the Respondent and the matter was heard on 26 April 2021. Although the Tribunal has, since the start of the COVID-19 pandemic generally conducted its hearings on the Microsoft Teams platform using audio-visual equipment, on this occasion it acceded to a request for the hearing to take place in person which it did, again with COVID-19 precautions being observed.
Ms Young was assisted at the Tribunal by her disability advocate, Mr Zaya Toma and supported by Mr Bryce Jones, one of her housemates. The Tribunal thanks them both for their assistance to the Applicant.
JURISDICTIONAL ISSUE
On 3 March 2021 the Applicant provided the Tribunal with a Witness Statement in which she set out details of her background, current living arrangements, her current Plan and a list of items which she wished to have considered as part of a new or revised Plan.
Subsequently, on 16 April 2021 Deputy President Constance made a decision (QDKH) in which he determined that the Tribunal had no jurisdiction to consider any requests for additional supports which had not been “put before” the original decision-maker.[9] In other words, the Tribunal has no power to review a matter which has not previously been the subject of a review by the Agency.
[9] QDKH and National Disability Insurance Agency [2021] AATA 922 citing the decision of Justice Downes in Faud and Telstra Corporation Limited [2004] 39 AAR 496; [2004] AATA 1182 at [5].
This decision caused the Respondent to compare the requests made by the Applicant in her review request of 18 June 2019[10] with those made in the March 2021 Witness Statement to the Tribunal.[11]
[10] T-documents at 6-21.
[11] Respondent’s evidence tendered as R1.
In doing so, the Respondent produced a list of those requests which it claims fell outside the jurisdiction of the Tribunal as per the decision in QDKH. The Applicant challenged some of the conclusions of the Respondent and the Tribunal adjourned briefly to allow the parties to see if some agreement about included/excluded items could be reached.
The result of this was that the Respondent revised its list of excluded items to bring some back into consideration. The Applicant continued to assert that this still left some items excluded which should not have been and the Tribunal gave leave for the Applicant to make further written submissions on this after the conclusion of the Tribunal’s proceedings. These representations[12] have been taken in account by the Tribunal.
[12] Received 30 April 2021 and 3 May 2021.
After the date at which all submissions had been received, the Tribunal became aware that on 19 May 2021 the Legal Aid Commission of NSW gave notice of an appeal against the decision by the Deputy President seeking to have it set aside in whole. That matter has yet to be determined, but in the interim this Tribunal regards itself as bound by the decision of the Deputy President in QDKH and will proceed accordingly.
MS YOUNG’S DISABILITIES AND PLANS
The Applicant was born in 1988 and lived most of her life in the areas around Wauchope and Port Macquarie (NSW) until she relocated to live in Moss Vale on the NSW southern highlands in April 2020.
She resides in community housing in a house which she shares with two other people, both of whom identify as people with a disability (disabilities). She describes the house as relatively small, consisting of three bedrooms, one bathroom, one kitchen and a dining/living area. It is set on a quarter-acre block with quite a large back yard. There are steps to access the front and back doors, but only the front door has a ramp to accommodate the Applicant’s wheelchair. The Applicant describes the corridors in the house as narrow and difficult to navigate in her wheelchair and says further that her wheelchair does not allow her proper access into the bathroom which she finds difficult to access and use. Benchtops in the kitchen are described as too high for her to reach and some cupboards are inaccessible. The preparation of meals is a shared responsibility as is doing the laundry. The Applicant has access to a motor vehicle of which she is the sole user and uses it frequently and without difficulty. The house is in relatively close proximity to the town of Moss Vale where her General Practitioner and other services are available. For the hearing the Applicant (with the assistance of one of her housemates) was able to access the Tribunal using public transport (railway) from Moss Vale.[13]
[13] Taken from Applicant’s Witness Statement and oral evidence to the Tribunal.
The Respondent records that the Applicant suffers from multiple disabilities, specifically:[14]
a. hypermobile joints and twisted musculoskeletal system/scoliosis affecting her mobility;
b. bulging discs and impinged nerves in her lumbar spine and sacroiliac joint syndrome, affecting muscle strength and sensation in her legs and bladder;
c. anxiety, depression and bipolar disorder;
d. asthma;
e. astigmatism and Duane syndrome with associated reduced vision;
f. moderate autism;
g. conversion disorder, resulting in non-epileptic seizure which from time to time causes transient complete paralysis; and
h. polycystic ovary syndrome.
[14] Respondent’s Statement of Facts, Issues and Contentions (SFIC) at [2].
A report from an Occupational Therapist dated 29 May 2019 adds information about knee surgery in 2009 due to subluxation[15] and, at the Tribunal hearing, the Applicant also mentioned more recent difficulties with a decline in hearing ability and problems with her feet.
[15] T-documents at 22.
The Applicant had her first NDIS Plan approved on 18 December 2017 which apparently ran until August 2018. There were then several changes in her Plan until a new Plan was approved on 8 March 2019. Since that date there have been three subsequent Plans with her current Plan effective from 1 April 2021 and due for review on 1 July 2021.[16]
[16] Respondent’s SFIC at [9].
THE CURRENT PLAN
The Applicant’s current plan runs from 1 April to 1 July 2021 and consists of the following elements:[17]
·Core support $ 17,605.91
·Transport support $ 446.00
·Capacity Building $ 2,631.44[18]
·Assistive Technology $ 1,048.40
·Total support package $ 21,731.75
[17] Respondent’s Further Evidence at 7-10.
[18] Improved life choices ($545.70); Improved daily living ($1,332.26); Improved health and wellbeing ($454.66); Support co-ordination (298.82).
The Applicant throughout her evidence maintained that this is insufficient funding for her to be able to maintain the quality of life which is a primary objective of the NDIS.
REPORT AND EVIDENCE OF PROFESSOR EINFELD
The Respondent commissioned Emeritus Professor Stewart Einfeld to give a report on the Applicant for these proceedings. Professor Einfeld is a qualified clinical psychiatrist and a Professor of Child and Adolescent Psychiatry. Professor Einfeld provided a written report of some 7 pages (accompanied by a curriculum vitae of 53 pages[19]) and gave oral evidence at the hearing.
[19] Report by Professor Einfield, Respondent’s Further Evidence at 41-93.
Professor Einfeld’s examination of the Applicant took place over the telephone and was followed up a few days later with another brief conversation. The Applicant stated that she found the initial interview pointless and that Professor Einfeld had promised to recontact her the following day but did not do so until several days later when she was, of all places, attending a funeral. She agreed that he spoke briefly to her housemate Bryce who himself has some cognitive difficulties and asked him (Bryce) to report on the Applicant’s health and wellbeing.
Professor Einfeld recognises the limitations of his own report, stating:
“It is not possible to make definitive judgements about this complex psychiatric presentation within the confines of a single, and brief subsequent interview, representing a single period.”[20]
“Again, I report my impressions from one telephone interview and brief follow up, and they are consequently somewhat speculative.”[21]
[20] Ibid at 35, [5.1(a)].
[21] Ibid at 38, [5.1(c)].
Professor Einfeld conceded that his principal area of expertise was in child and adolescent psychiatry, although he has qualifications in general psychiatry. In any case, he felt that he had been asked for a report by the Respondent on the basis of his expertise in dealing with autism. In this respect his conclusions were that the Applicant displayed “some features” of what he characterised as “mild Autism”.[22]
[22] Ibid at 37, [5.1(a)].
Professor Einfeld was asked for his opinion in relation to the value of interventions such as yoga, pilates, horse therapy and arts therapy as ways of assisting the Applicant to manage her levels of stress or to improve her levels of wellbeing. He was generally dismissive of such interventions although conceded in his report that they “may be helpful in reducing stress”.[23]
[23] Ibid at 40, [5.1 (e)].
In his oral evidence Professor Einfeld, in relation to the effective use of arts therapy to help improve mental health functioning, described the evidence for this as “weak” and referred to a lack of research in this area.
The Tribunal specifically rejects this characterisation. The literature, both in Australia and internationally is extensive and the value of arts-based therapies in the management of both mental and physical health conditions is overwhelming. Without going into excessive detail, the Tribunal refers simply to the evidence contained in the Report of the NSW Ministerial Taskforce on Health and the Arts (April 2016): The PAtH Forward – Partnering Arts to Health[24] which resulted in the formal adoption by NSW Health of the NSW Health and the Arts Framework as public policy to improve health outcomes.[25]
[24] NSW Ministerial Taskforce on Health and the Arts, Report of the NSW Ministerial Taskforce on Health and the Arts (April 2016): The PAtH Forward – Partnering Arts to Health: Disclaimer – this Taskforce was chaired by the Presiding Member conducting this hearing.
[25] NSW Health and the Arts Framework: Improving the health of the community through integrating The Arts into the design and delivery of health services and public health messaging:
Leaving aside disagreements with Professor Einfeld on this specific matter, the Tribunal found that given the professed limitations and shortcomings within his report, it was a report of somewhat limited utility in assisting the Tribunal with its deliberations.
THE LEGISLATIVE FRAMEWORK: REASONABLE AND NECESSARY SUPPORTS
In order to satisfy itself that a claimed support is “reasonable and necessary”, the Tribunal (in the shoes of the CEO) must be satisfied of the following criteria as relevantly provided in section 34 of the Act:
Reasonable and necessary supports
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
MS YOUNG’S REQUESTS
Given the Tribunal’s previous comments in relation to the inclusion/exclusion of certain items from the Applicant’s list of requirements, those which remain may be divided into five categories:
(a)Support requests agreed to by the Respondent without further qualification;
(b)Support requests accepted by the Respondent subject to receiving an updated Assistive Technology report which would satisfy the requirements of section 34 of the Act that such supports are “reasonable and necessary” to allow the Applicant to meet her stated goals under the Plan;
(c)Supports requested which the Respondent believes should not be provided because there is insufficient evidence before the Tribunal to be assured that the supports are reasonable and necessary for the purposes of section 34 of the Act;
(d)Supports requested which both parties agree were not mentioned in the original request and which thus fall outside the scope of the Tribunal to consider, and
(e)Supports requested which the Respondent believes should be excluded and the Applicant believes should be included in the Tribunal’s determination.
There is a degree of difficulty in being entirely precise about the items in each of these categories as the Applicant claims that they have been referred to in correspondence to the Agency which the Agency is alleged to have lost. The Applicant was not able to provide copies of any such correspondence because she no longer has access to her Agency file as a result of some failure on the part of the Agency to activate the relevant, previously damaged portal. At the hearing the Tribunal asked the Agency to undertake a search of its files to see if any such records either exist/existed or could be recovered.
On 30 April 2021 the Applicant provided the Tribunal and the Respondent with an email, together with various attachments which she insists substantiates her claim that the Respondent had been notified of her claim for additional supports at an earlier date.
By email of 4 May 2021 the Respondent maintained its position that the claims advanced were not “put before” the original decision-maker and hence (per QDKH) fell outside the Tribunal’s jurisdiction for consideration.
In response to the Applicant’s claims, the Tribunal directed the Respondent to re-examine its files to determine if earlier correspondence had been received (and as the Applicant would have it, lost). In the event the Respondent identified three Assistive Technology Reports by Mr Ruth Howell relevant to proceedings. These involved a request for a mattress (since provided), an assessment of the need for a hoist and an Occupational Therapy Housing letter.[26] The Respondent did not identify any “correspondence” from the Applicant which it had not previously presented to the Tribunal.
[26] Respondent’s Further Relevant Material (12 May 2021).
On this basis, the Tribunal turns to consideration of the various claims for support, as outlined below.
Supports agreed
The Applicant has requested:
·an increase in the provision of personal care totalling 4 hours of personal care per day, and
·an increase in the number of hours for psychology services, in relation to which the Respondent has agreed that 48 hours of counselling and 4 hours of report writing per annum would be appropriate.
As the Respondent has agreed to these requests the Tribunal has no reason to discuss them further.
Supports agreed conditionally
The Applicant has requested various supports which the Respondent has indicated should be agreed to, subject to the provision of an Assistive Technology report providing satisfaction of section 34 requirements. These supports are:
·a hoist and sling system compatible with the use of the Applicant’s i-care electric bed to be trialled;
·a shower commode;
·a Batec power add-on for existing manual wheelchair and associated accessories which include off-road tyres, backrest and battery; and
·there is some confusion as to whether or not the provision of a door wedge (apparently for use in the bathroom) should be regarded as an included or excluded item. The Tribunal notes that while the Respondent provides their position is that they agree conditionally to the inclusion of this item, it is not referred to in the initial review and therefore may have to be excluded.
The Tribunal agrees that, with supporting evidence from an Assistive Technology report, these requested supports should be considered for inclusion in a revised Plan. It notes that there is already a report from Evan Joyce, Bachelor of Occupational Therapy, in the form of an Assistive Technology report dated 24 April 2021 which supports the inclusion of a Batec Scrambler as part of the technologies which should be available to the Applicant.[27]
[27] General Assistive Technology report, Evan Joyce, 24/04/2021 at page [24].
Supports declined for insufficient evidence
This is an extensive list and includes claims for:
·24 hours of personal care when the Applicant suffers a severe onset of her symptoms which she claims so incapacitate her that she is unable to get out of bed or to be functionally effective to any degree.
oThe Respondent maintains that such episodes are rare and that there is only evidence of one having occurred during the course of 2020. The Applicant claims that such incidents, although relatively infrequent over the last year were more frequent in 2019, occurring every two or three months. She says that they do nevertheless occur and when they do, they render her incapable of normal functioning as her whole upper and lower body is paralysed. Her housemates have provided supportive testimony in this regard and describe her at these times as “not computing”.
oIt was the evidence of Professor Einfeld that these attacks are now infrequent and that they last for hours rather than days. He gleaned this evidence from a casual conversation with one of the Applicant’s housemates who himself suffers some disabilities. As a result, the Tribunal is not inclined to give significant weight to these conclusions.
oIn the absence of more detailed information about the frequency, severity and aetiology of these attacks, or any effective response to or management of them, the Tribunal cannot be assured that the requested support meets the section 34 requirements.
·Increased domestic assistance (3 hours per week). The Applicant states that this is necessary to allow her to manage a range of domestic chores/activities and thereby to relieve some of the resultant stress on her mental health.
oThe Respondent indicates that the Applicant’s own statements and evidence to the Tribunal demonstrate a reasonably high degree of capacity to manage domestic living, especially as she has access to assistance from two housemates.
·There is a request for an increase to Level 2 support for transport to the value of $2,472 per annum which the Applicant says is necessary to allow her to access services beyond her home and to undertake various tasks which require use of taxis or public transport.
oThe current Plan provides for transport costs of $446 but the Applicant indicated that she had effective use of a motor vehicle which served for most of her transport needs, although she is also applying for an upgrade of that vehicle. In the absence of more information about transport needs the Respondent does not regard this claim as supported by sufficient evidence.
·In addition to seeking enhanced transport cost support the Applicant has proposed major changes to her motor vehicle which includes occupational therapy; ramps; captain chairs; anchor point systems, racing harness and seat belt; insurance and purchase of annual roadside assistance policy.
oThe Respondent claims that there is insufficient evidence that such requirements are reasonable and necessary, however the Tribunal was impressed with the Applicant’s evidence that she makes effective use of her motor vehicle (a 2003 Subaru Liberty acquired in 2005 which has done some 300,000 kilometres to date) and that her mobility and access would be enhanced substantially by such motor vehicle modifications.
oThe Tribunal also notes that the Applicant is the only member of the household who drives the motor vehicle.
·The Applicant has sought support for a variety of new or expanded therapeutic interventions. There are a set of requests which might be characterised as “mainstream therapy based[28]”, including 15 hours of chiropractic therapy; 53 hours of physiotherapy; 53 hours of exercise physiotherapy and 53 hours of hydrotherapy.
[28] This is purely the Tribunal’s description, as is “alternate therapies”.
oThe Respondent initially asserted that there was insufficient evidence by way of referrals or letters of support to establish these therapies as meeting the reasonable and necessary test. It acknowledged “fortnightly physiotherapy” is recommended to be included in an early Plan review by Ruth Howell, an Occupational Therapist at Hastings Mobile Rehab.[29] After further consideration of the evidence presented at the Tribunal hearing, the Respondent revised its position and agreed that this claim for 15 hours of Level 2 Support Coordination was established as being reasonable and necessary.[30]
[29] T-documents at 25.
[30] Email advice from Respondent (12 May 2021).
oThe Applicant was somewhat unclear in her attempt to differentiate between “physiotherapy” and “exercise physiotherapy” and there was evidence that there were no accessible hydrotherapy programmes immediately available to the Applicant.
·The Applicant also sought therapeutic supports which might be characterised as “alternate therapies”, including 15 hours of yoga, 15 hours of pilates, 20 hours of horse therapy, 20 hours of body co-ordination (Zumba or dance classes), 20 hours of alternate diet investigations and 12 hours of art/self-expression therapy.
oThe Respondent maintains that there is insufficient information to sustain a claim that the supports are reasonable and necessary and the Applicant has not provided any substantial evidence suggesting how these supports would help her achieve her Plan objectives.
oThe Applicant claims that she has problems accessing delivered meals services because of her “extensive list of allergies”. There is no evidence of these allergies before the Tribunal although the Applicant advised it that she was in the process of undergoing relevant tests at this time.
oThe Tribunal has already commented on the negative perception of the utility of such interventions in Professor Einfeld’s report which, however, was not adverse to the idea that at least one such support might be trialled at some stage.
oThe Tribunal agrees with the proposition that if any of these supports should be included, that would encompass only one of them in order to allow a proper evaluation of its success/utility; something which would not be possible were more than one to be trialled at the same time.
·It is useful to consider together requests for support to facilitate the Applicant’s social and community engagement and her capacity building supports.
oThe Applicant refers to not having sufficient core activity funds to engage fully with activities such as shopping, attending church or undertaking studies.
oShe believes that an additional 80 hours of capacity building supports would allow her to address issues of improved living arrangements; finding and keeping a job; improved personal health and social wellbeing and enhanced lifestyle choices, amongst others.
oSupport for these interventions is provided in the report by the occupational therapist Ms Howell.
oThe Respondent maintains that despite any such report from Ms Howell or the stated views of the Applicant there is still insufficient evidence to meet the reasonable and necessary tests.
·Two support requests relate to either a modification of the Applicant’s existing manual wheelchair or the acquisition of a power chair.
oThe Applicant indicated that she had previous use of a power chair when she lived in Port Macquarie but she gave this to someone else when she moved to Moss Vale. She also states that the corridors and room entrance in her current accommodation make it difficult to use and manage her existing chair and may present problems with any large (power) chair.
oMs Howell’s report is supportive of the acquisition of a power chair.
oThe Respondent notes that these requests do not establish a reasonable and necessary application and that maintenance of such equipment funding is included in the existing Plan.
oThe Tribunal notes that the Assistive Technology report of Evan Joyce gave specific consideration to claims for a ‘power wheelchair”, a “freedom chair” and “light drive” which attaches to the back of a chair and, in each instance found them not suitable for the Applicant.[31]
·Further supports by way of additional equipment are requested in relation to a new electric bed, a new smart drive and a new pressure mattress.
oThe Applicant does not outline the immediate need for the bed or smart drive (other than that her current drive does not now work).
oThe Respondent considers there to be insufficient evidence to support the inclusion of this equipment in the Plan.
[31] General Assistive Technology Report by Evan Joyce (24 April 2021) at 24-25.
The Tribunal notes two further matters which arose during the course of the hearing in this matter. Firstly, one of the “excluded” items (per QDKH) was the Applicant’s claim for support for continence products. The evidence given by the Applicant on this particular matter should not, in the Tribunal’s view, be excluded from further consideration regardless of the extent to which it was or was not mentioned in the original application. Decency requires no less.
It appears that a Continence Assessment was completed on 16 April 2021 by Jane Clarke (a Continence Nurse Consultant)[32] which makes reference, inter alia, to that fact that the Applicant “was reviewed by urologist Dr Jarvis at Prince of Wales Hospital earlier this year” which is supportive of the specialist nurse practitioner’s recommendations for continence support to be provided within the Applicant’s Plan. The Tribunal believes this should be provided at the earliest possible opportunity.
[32] Continence Assessment Report by Jane Clarke (30 April 2021).
The second issue was the claims by the Applicant that she had plans to change her accommodation, although there was no sense of any timing in relation to this matter. However, the significance is that should there be a full assessment of her needs which relate specifically to the nature and requirements or constraints of her present accommodation, and that accommodation were to change in the immediate future, much would be lost in terms of unnecessary resource expenditure and utility of derived information.
Any evaluation of the Applicant’s requests for supports which would necessarily have to be taken directly in relation to and within the confines of the Applicant’s existing place of residence would need to be undertaken conditionally upon some evaluation of the prospect of the Applicant remaining at that address for a reasonable period of time.
Supports agreed by both parties to be excluded
The total number of separate, or identifiably distinct, support requests put to the Tribunal (some 40 in total), but not put to the Agency which may, as a result be excluded are as follows:
(a)a range of consumables (skin care, hair care products);
(b)10 hours of home activities to help with mental health;
(c)10 hours of speech therapy;
(d)53 hours of skin care;
(e)unknown number of hours for podiatry;
(f)crutches;
(g)weighted blanket;
(h)communication device;
(i)communication software; and
(j)hire of any equipment as needed.
The Tribunal notes that the Applicant has provided a report from Benjamin Ng, Speech Language Pathologist (dated 25 September 2020) recommending the purchase of a tablet computer to allow the Applicant to access Telehealth services, especially during periods of COVID-19 restrictions.[33]
[33] Document supplied by Applicant (30 April 2021).
Supports claimed by the Applicant and rejected by the Respondent on basis of decision in QDKH
The principal items which remain in dispute between the parties as to whether or not they were “put to” the original decision-maker and hence can be considered by this Tribunal are
·Support for continence products
·Access to speech pathology
·Mobility devices including Batec scrambler and various wheelchair options.
The Applicant claimed these matters were included in earlier representations; the Respondent indicated it had no such records.
The Tribunal has commented above on some of these issues and in particular notes the report by the Continence Nurse in relation to the Applicant’s status and needs.
DISCUSSION
The schema of the NDIS is such that after undertaking an examination of the claims made for a review of the Applicant’s Plan the Tribunal should, if persuaded that changes are warranted, set aside the existing Plan and having conducted a section 48 review[34] make a new determination.
[34] With the Tribunal “in the shoes” of the CEO for this purpose.
The Tribunal believes that the items identified as agreed between the parties should be included in a new plan as they are reasonable and necessary to allow the Applicant to fulfil her goals under the Plan.
To these, the Tribunal adds support for continence products which the Tribunal believes is not excluded from consideration as per the Tribunal’s decision in QDKH and which has already been subject to professional assessment.
The Tribunal further believes that there should be a comprehensive examination and assessment of some of the claims which have currently been declined by the Respondent on the basis that there is insufficient evidence for them to be supported as reasonable and necessary.
In particular the Tribunal focusses upon those assistive technologies which allow the Applicant to improve the quality of her personal care and hygiene; those which assist her mobility and capacity to participate more fully in community life and those which add to her capacity for personal/spiritual fulfilment.
It agrees that the other items in the Applicant’s claims cannot be considered at this stage and, if pressed by the Applicant, must be made the subject of a further application for review of her Plan.
DECISION
The decision under review is set aside and substituted with the decision that:
(a)the Applicant should be funded for:
(i)4 hours of personal care per day,
(ii)48 hours of counselling per year with 4 hours of writing per year,
(iii)15 hours of Level 2 Support Coordination,
(iv)support for continence products as per the assessment of Continence Nurse Jane Clark (16 April 2021).
(b)Assistive Technology Assessments should be considered (where already provided) or conducted/funded in relation to the Applicant’s claims for:
(i)a hoist and sling system compatible with the Applicant’s i-care electric bed,
(ii)a shower commode,
(iii)a door wedge for use in the bathroom,
(iv)a Batec power add-on for existing manual wheelchair and associated accessories which include off road tyres, backrest and battery,
(v)changes or adaptations of the Applicant’s motor vehicle, and
(vi)the trial of one form of “alternate” therapy drawn from the list of yoga, pilates, horse therapy, Zumba dance classes, alternate diet arrangements, arts/self-expression therapy.
I certify that the preceding 66 (sixty -six) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
......................................[sgd]..................................
Associate
Dated: 2 June 2021
Date(s) of hearing: 26 April 2021 Date final submissions received: 12 May 2021 Advocate for the Applicant: Mr Z Toma, Multicultural Disability Advocacy Association Counsel for the Respondent: Ms Z Heger Solicitors for the Respondent: Ms E Letcher-Boldt, Clayton Utz
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