Young and National Disability Insurance Agency
[2017] AATA 407
•31 March 2017
Young and National Disability Insurance Agency [2017] AATA 407 (31 March 2017)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2016/4223
Re:Margaret Young
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
Decision
Tribunal:Senior Member J F Toohey
Member D ConnollyDate:31 March 2017
Place:Sydney
The Tribunal affirms the decision under review.
..............................[sgd]..........................................
Senior Member J F Toohey
Catchwords
National Disability Insurance Scheme – reasonable and necessary supports – vehicle modification – whether applicant’s plan should include funding for swivel seat – whether value for money – whether likely to be effective and beneficial – economic participation –what is reasonable to expect family to provide – Tribunal not satisfied of all criteria in s 34(1) – decision under review affirmed
Legislation
National Disability Insurance Scheme Act 2013, ss 3, 4, 33, 34, 100
Cases
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 153 ALR 490
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Secondary Materials
National Disability Insurance Scheme (Supports for Participants) Rules 2013
Operational Guideline Including specific types of supports in plans, September 2016
Productivity Commission Inquiry Report, Disability Care and Support, No. 54, July 2011, vol 2
REASONS FOR DECISION
Senior Member J F Toohey
31 March 2017
Introduction
Margaret Young is a participant in the National Disability Insurance Scheme (NDIS) which is governed by the National Disability Insurance Scheme Act2013 (the Act). She has Limb Girdle Muscular Dystrophy, a degenerative condition which causes muscle weakness and soreness, and difficulty with mobility. Her husband, Brendon Young, has made a number of modifications to their home to make it more accessible for her including lowering the steps between the garage and the main house and adding hand rails, and modifying the step from the front porch into the house.
As a participant in the NDIS, Mrs Young has a participant’s plan which comprises a statement of her goals and aspirations, and a statement of participant supports approved by the CEO of the National Disability Insurance Agency (NDIA): s 33 of the Act. A statement of participant’s supports includes the reasonable and necessary supports that will be funded under the NDIS: s 33(b).
Mrs Young’s plan includes funding for transport, house cleaning, a personal alarm system, exercise physiology and occupational therapy. She seeks review of a decision by the NDIA not to include in her plan funding of $12,056 for a Turny swivel seat to enable her to get in and out of her husband’s LandCruiser. The LandCruiser is higher from the ground than a standard vehicle.
Mrs Young’s participant’s plan
Mrs Young became a participant in the NDIS in April 2014. Her first plan commenced on 14 May 2014 and, in accordance with s 33(2)(c) of the Act, provided that it would be reviewed by 15 April 2015. On 26 November 2014, a second plan was approved. A third plan commenced on 14 May 2015 and was to be reviewed by 11 May 2016. Mrs Young’s current plan commenced on 12 May 2016 and is to be reviewed by 11 May 2018.
Mrs Young’s goals and aspirations, and the funding to be provided, are broadly similar in each of her plans. Her goals include “to be able to spend more time walking and exercising and to travel” and to “continue to exercise regularly and stay mobile”. To help meet these goals, her first plan included funding for an assessment by an occupational therapist to investigate options for safe transfer in and out of her home and the LandCruiser “with a view to travelling with a caravan in the future”. Her current plan includes funding for “occupational therapy to conduct a further review and investigation of options around [her] mobility”.
Background
Mrs Young has a Honda sedan which she can get in and out of independently. She drives herself each day to her full time job as a medical recruiter. Mr Young is a taxi driver and drives his LandCruiser when not working. Mrs Young cannot get in or out of the LandCruiser by herself. For a number of years she has used a foldable step that Mr Young made for her when she needed a means of getting in and out of a tour coach during a trip to Europe. When that became too low, he made a second, larger foldable step to go with the smaller step so she can get into and out of the LandCruiser. They took the steps on a trip to central Australia in the LandCruiser in 2015. The steps are different heights and have no handrail. The NDIA does not dispute, and we accept, that the foldable steps are no longer suitable.
Mr Young uses the LandCruiser for trips to the hardware store and landscape suppliers, and to transport equipment and gardening supplies for work on their large garden. Mrs Young would like to be able to join him but cannot do so without a suitable means of getting into and out of the LandCruiser. They both enjoy bushwalking, and the exercise helps Mrs Young keep mobile. They like to take the LandCruiser to bushwalks that are not easily accessible in her sedan.
Mrs Young plans to start cutting back her work later this year and eventually retiring altogether. She has long service and other leave available this year and would like to travel in Australia with Mr Young. They have a number of friends who enjoy caravanning. On their trip to central Australia in 2015 they drove the LandCruiser and stayed in on-site caravans. They would like to travel more when Mrs Young has leave, and in their retirement. They plan to buy a caravan with an internal bathroom so she does not have to rely on communal facilities.
In order to accompany her husband on local trips in the LandCruiser, to bushwalking sites that are not accessible in her car, and on caravanning trips, Mrs Young needs a safe means of getting into and out of the LandCruiser. The question is whether the NDIS should provide funding for a Turny seat.
We have seen YouTube footage of various models of the Turny swivel seat in use. All act on the same principle. The seat is installed in place of a driver’s or passenger’s seat and is operated electronically. It swivels and extends outside the vehicle, lowering or lifting the person to or from the ground. It can be transferred to another vehicle with the assistance of a professional installer.
Mrs Young has received a quote of $12,056 for supply and installation of a Turny Evo seat system. Removal and installation in another vehicle, if required, would cost $2,178. Mrs Young is willing to meet the cost of removal and re-installation if the need arises.
Ms Netherton’s assessment
In July 2014, the NDIA referred Mrs Young to the Hunter Occupational Therapy Service for assessment “with particular attention to her safety when accessing her home and their [LandCruiser]”.
On 28 August 2014, Maggie Netherton, an occupational therapist, provided a report of her assessment to the NDIA. She said there had been a slow decline in Mrs Young’s strength over the years, particularly in her shoulders and hips, and her physical endurance had decreased; she was able independently to negotiate eight steps from the garage into her home using handrails, but was unable independently to negotiate a step greater than 140mm in height.
Ms Netherton identified the Turny swivel seat as the “best long-term option.” With respect to the alternative options that had been considered, she said:
Folding modified step: This was deemed not feasible for make and model of vehicle
Purpose-built Step system: This option would not be finical feasible as it would involve and engineering report (sic)
Handy Bar: this would not adequately meet Margaret’s needs as the main issue preventing transfers is the step height and poor upper limb strength
There was apparently some delay obtaining a quote for supply and installation of the Turny seat and some further delay while the NDIA made a decision about whether funding would be provided for it.
On 30 March 2015, the NDIA advised Mrs Young by email that the Turny seat had been “deemed not to meet the reasonable and necessary guidelines for several reasons. In particular, the age and number of kilometres of your vehicle and the limited times during which it would be used mean it is not feasible to be funded. Modifications to this vehicle would not be considered to significantly enhance your day to day functional independence”.
In the meantime, Amanda Roberts, an occupational therapist, had taken over from Ms Netherton at the Hunter Occupational Therapy Service. In the email of 30 March 2015, the NDIA advised Mrs Young they had been unable to contact Ms Roberts but would keep trying to make contact and to discuss with her “any viable options”.
The NDIA’s email does not appear to have been intended as formal notice to Mrs Young of a decision not to fund the Turny seat. Had it been so intended, it did not meet the requirements in s 100(1) of the Act for giving notice of a reviewable decision. In any event, investigations and discussions continued.
Ms Roberts’ assessment
On 14 July 2015, Ms Roberts visited Mrs Young at home. She prepared a detailed report of her assessment. She identified the problems with the steps Mr Young had made as follows:
·Inconsistent step treads and heights.
·Limited supports for Margaret to hold when she is negotiating the steps.
·Brendon is required to assemble and dissemble besides (sic) the car which requires to be parked on level ground with sufficient space besides the car.
·Margaret reported that she feels vulnerable when using the steps in the community.
On 15 July 2015, Ms Roberts spoke with the NDIA and advised that she agreed with Ms Netherton’s recommendation for a Turny seat. Ms Roberts’ notes show there was discussion of the NDIA’s reasons for not funding the Turny seat for the LandCruiser, and the NDIA advised the matter could be investigated further if it was for Mrs Young’s vehicle and if it would assist her “to be independent in everyday community access”. The NDIA advised that free-standing steps that would meet Mrs Young’s “current functional needs” would be considered.
There followed some discussion between Ms Roberts and Mrs Young, and it was agreed that Ms Roberts would contact Technical Aids for the Disabled (TAD), a local organisation that provides supports for people with disabilities, about customised steps for the LandCruiser.
Based on the information provided by Ms Roberts, TAD prepared a proposal for customised steps constructed of plywood, with detachable hand rails and an overall weight less than 10 kilograms. A copy of the proposed design shows three steps of equal height and width, with base dimensions of 750mm x 600 mm, and the top step at a height of 300mm from the ground.
Emails between Ms Roberts and Mrs Young show that, on 14 September 2015, Ms Roberts sent a copy of the TAD proposal to Mrs Young and asked whether she considered it suitable. Mrs Young replied that she did not think there was much point in discussing the proposal because “the last thing” she needed was for Mr Young to damage his back, “which he will surely do with this proposal”.
In an email to Mrs Young on 15 September 2015, Ms Roberts said she understood how Mrs Young felt, and she agreed the steps proposed by TAD “would not be suitable for the LandCruiser”. She said she would “continue to recommend the Turny orbit seat and discuss the outcome of the foldable steps” but she was not certain the NDIA would change its position.
In a report to the NDIA on 22 September 2015, Ms Roberts advised that she had completed research of steps that would be suitable and had determined that a custom-made design was required. She said advice from TAD was that they could not make the steps foldable unless “in-depth engineering and quality testing could be undertaken which was … out of scope for the TAD program” and they proposed the plywood design. She said the TAD proposal had been put to Mrs Young, who was “unsatisfied with this outcome.” Ms Roberts wrote:
Unfortunately, this design would not be suitable for Margaret and Brendon’s intended use as the steps would take up a lot of space in the Land Cruiser and require Brendon to lift them in and out of the car posing manual handling risks.
Ms Roberts concluded that she agreed with Ms Netherton that the Turny seat was “the most appropriate” for transfers in and out of the LandCruiser.
Internal review and application to the Tribunal
It is not clear from the documents before us that the decision not to fund the Turny seat was formally communicated to Mrs Young but nothing turns on this. On 24 June 2016, Mrs Young sought internal review under s 100(2) of the Act. On 21 July 2016, an NDIA reviewer confirmed the decision not to fund the Turny seat.
On 11 August 2016, Mrs Young lodged her application for review with the Tribunal.
Reasonable and necessary supports
Section 34(1) provides that, for the purposes of specifying in a participant’s plan the reasonable and reasonable and necessary supports that will be funded, the CEO (and so the Tribunal) must be satisfied of all of the following matters in s 34(1) in relation to each 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 NDIA contends that the Tribunal cannot be satisfied that funding for a Turny seat would meet s 34(1) (c), (d) and (e).
In accordance with s 209(1), the Minister has made rules prescribing criteria to be applied, and matters to which regard must be had by the CEO (and so the Tribunal) in deciding whether he or she is satisfied of the matters in s 34(1) (and see s 34(2)). The relevant rules are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Rules). They are considered below.
The CEO of the NDIA has made Operational Guidelines (Guidelines) to assist decision-makers in decisions about matters including reasonable and necessary supports. The Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634. Relevant to this matter is the Guideline Including specific types of supports in plans issued in September 2016, in particular as it concerns Vehicle Modifications.
Consideration
Section 34(1)(a)
We are satisfied that the Turny seat would assist Mrs Young to pursue her goal to travel and, insofar as it assists her to go bushwalking, that it would assist her to pursue her goal of spending more time walking and exercising, and staying mobile. We are therefore satisfied of s 34(1)(a).
Section 34(1)(b)
The objects of the Act include supporting the independence and social and economic participation of people with disability: s 3(1). The general principles guiding actions under the Act include that people with disability should be supported to participate in and contribute to social and economic life to the extent of their ability: s 4(2).
Section 34(1)(b) requires us to be satisfied that funding of a Turny seat will assist Mrs Young “to undertake activities so as to facilitate her social and economic participation”.
We accept that there are social aspects of travel and bushwalking and, insofar as the Turny seat would allow Mrs Young to travel in the LandCruiser, we are satisfied that it would assist in her to undertake activities so as to facilitate her social participation.
That said, according to her evidence, Mrs Young’s social participation is not lacking. She describes her existing social life as “strong”. She works full time. She and Mr Young have a close and supportive family and see their adult children and their partners, and their grandchild, weekly. They also spend time with their extended family and with a network of friends in their local area and through their work, and they often have friends to dinner (rather than going to restaurants that might present difficulties of access). They travel. It might be said that the Turny seat would further enhance her social participation but is not “necessary” to it.
Section 34(1)(b) requires that a support will assist the participant to undertake activities so as to facilitate his or her social and economic participation. (In contrast to the disability requirement in s 24(1)(d) that an impairment affect a person’s capacity for social or economic participation). Economic participation in this context is not defined. We accept the submissions made by both parties that social and economic participation should be given a broad meaning in light of the general purpose and policy underlying the NDIS as reflected in the Act: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 153 ALR 490.
In its July 2011 report, Disability Care and Support, on which the NDIS is based, the Productivity Commission considered the economic benefits of the proposed reform, including the potential for growth in employment of people with disabilities. The Commission said, however, that there is “inherent difficulty in valuing the many intangible and equity impacts of the NDIS”, and the separation of economic and social benefits is often not appropriate.
We accept that “economic participation” should be read broadly as meaning connected to economic life, consumerism and the broader Australian economy. Interpreted narrowly to mean participation in the labour market, or employment, it would exclude from funded supports those participants whose disabilities are so severe and profound as to preclude any possibility of employment.
We are satisfied that, insofar as the Turny seat would assist Mrs Young to exercise and remain mobile, and to contribute to the Australian economy, that it meets s 34(1)(b).
Section 34(1)(c)
Section 34(1)(c) requires that the support represent value for money “in that the costs of the support are reasonable relative to both the benefits achieved and the cost of alternative support.”
Whether a support represents value for money must be considered in light of the object in s 3(1)(d) of the Act to provide reasonable and necessary supports for participants, and the direction in s 3(3)(b) that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS (see also s 4(17) which provides that it is the intention of Parliament that any person performing functions and exercising powers under the act have regard to the need to ensure the financial sustainability of the NDIS).
Rule 3.1 provides:
3.1In deciding whether the support represents value for money in that the costs of the support are reasonable, 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).
We are not satisfied that the Turny seat represents value for money for the purposes of s 34(1)(c). We have not been provided with a quote for the TAD steps but understand from the NDIA that they would cost around $300. We do not understand Mrs Young to dispute that estimate. It is substantially lower than cost of $12,056 quoted for the Turny seat.
Mrs Young says, and we accept, that the Turny seat would give her some increased measure of independence in that she could get in and out of the LandCruiser when Mr Young is not with her. As it is, she has to rely on him to get the current steps out of the car and put them by her door each time she wants to get in or out of the vehicle; the same would apply to the TAD steps. If, for example, she is alone in the car while Mr Young is in the hardware store, or if she stays in the car while he goes for a bushwalk by himself, she cannot get herself in and out of the car unless the steps are there and he can help her; she must either go with him or wait until he returns. Against that, Mrs Young gave evidence that the Turny seat would be installed in the passenger seat of the LandCruiser; Mr Young would always drive and she would always be the passenger. It follows that there would be relatively few occasions when she would be alone in the vehicle as described above.
Mrs Young is able to drive herself to and from work every day and has no difficulty getting into and out of her own vehicle. Given that she wants to be able to accompany Mr Young on trips to the hardware store and around their local area, and on longer trips two or three times each year, the increase in independence afforded by the Turny seat over the TAD steps (or similar) would be limited. We are not satisfied that it would substantially improve her “life stage outcomes” and be of long-term benefit, and nor would it be likely to reduce her need for other kinds of supports.
Mr and Mrs Young acknowledge that they can drive to areas where they can enjoy bushwalking in her vehicle. We accept that there are other areas that would only be accessible in the LandCruiser but we are not satisfied that the additional benefit justifies the substantially greater cost of the Turny seat over the TAD proposal. We accept that Mr and Mrs Young enjoy travelling and would like the pleasure of spending more time travelling with a caravan but we are not persuaded that the benefits justify the additional cost of the Turny seat over the TAD steps (or similar). We are satisfied that the TAD steps (or similar) would allow her to achieve her goal of travelling with a caravan.
We accept that the TAD steps may be less convenient than the existing folding steps, and less convenient than the Turny seat but, given their dimensions, they would take up approximately the size of a large suitcase, with some additional space required for the detachable handrails. Insofar as they are inconvenient, that does not justify the cost of the Turny seat over the TAD steps which would achieve the same outcome, of allowing Mrs Young to get into and out of the LandCruiser, at a substantially lower cost.
The relevant Guideline provides that, in determining whether vehicle modifications represent value for money:
… the NDIA will specifically consider
·that the proposed vehicle modifications are the best alternative for effectively achieving the participants driving or transport needs;
·whether the participant’s specific needs can be achieved using a less costly alternative;
·the cost of vehicle modifications compared to the cost of other funded transport supports over the life of the vehicle. For example, modified taxi fares, modified vehicle hire or personal assistance;
·the suitability of the type of vehicle proposed to be modified in terms of:
(i) whether the vehicle is of an age, type and mileage that is cost-effective to modify relative to the cost of the modifications, anticipated use and expected longevity of the modified vehicle; and
(ii) whether the vehicle is of the type that will require the development of a unique engineering solution.
The Guideline notes that “vehicles less than 3 years old and under 45,000 kms are generally considered suitable to modify.” Older vehicles and those with higher mileage may still be considered “but evidence of roadworthiness and the expected lifespan of the vehicle will need to be provided”.
Mr and Mrs Young bought their LandCruiser approximately eight years ago from a person they know. It is a 2001 model with approximately 274,000 kilometres on the clock. It has a current roadworthy certificate. The only service history Mrs Young has been able to provide is an incomplete service record from April 2015.
The NDIA submits that the LandCruiser is well outside the policy in the relevant Guideline and funding for the Turny seat has the potential to undermine the financial sustainability of the NDIS. It is not necessary to consider this submission further because, whether or not the modification would come within the Guideline, we would not be satisfied that funding for the Turny seat would represent value for money for the purposes of s 34(1).
Section 34(1)(d)
The Rules provide:
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a)published and refereed literature and any consensus of expert opinion;
(b)the lived experience of the participant or their carers; or
(c)anything the Agency has learnt through delivery of the NDIS.
3.3In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
Ms Netherton and Ms Roberts are qualified occupational therapists. We accept that their assessments and recommendations for a Turny seat are based on their experience and current good practice.
That is not to say that other, more cost-effective, solutions, in particular the steps proposed by TAD, will not also be, or likely be, effective and beneficial based on current good practice. The fact that Ms Roberts considers the Turny seat “the most appropriate” solution does not mean that others are not also appropriate.
It is relevant that neither Ms Netherton nor Ms Roberts identified why the TAD steps would not be effective, or why they would not represent “good practice”. Ms Roberts’ statement that the TAD steps “would not be suitable” refers to the space they would take up in the LandCruiser and “manual handling risks” to Mr Young. She does not identify the “manual handling risks” to Mr Young. Mrs Young believes he will damage his back lifting them in and out of the LandCruiser but Mr Young has not suggested he has any real difficulty at present lifting the current steps which weigh about one kilogram more.
Of the problems Ms Roberts identified with the steps made by Mr Young, the first two go to Mrs Young’s safety. The third goes to inconvenience to Mr Young. Nothing in her report identifies any safety considerations that would make the TAD option unsuitable. Moreover, she says she would “continue to recommend the Turny orbit seat and discuss the outcome of the foldable steps”, suggesting that other options could be available.
The space that the TAD steps would take up does not detract from the fact that they would be effective and beneficial having regard to current good practice. We are satisfied that the Turny seat would likely be effective and beneficial for Mrs Young and that it would meet s 34(1)(d). However, we are also satisfied that the steps proposed by TAD would also meet this criterion.
Section 34(1)(e)
Rule 3.4(b) provides that, in deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide for a participant other than a child, the following are to be considered:
(i) the extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community; and
(ii) the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:
(A) the age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and
(B) the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and
(C) the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and
(iii) the extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes.
In all cases, the desirability of supporting and developing the potential contributions of informal supports and networks within their communities is to be considered: rule 3.4(b).
Mrs Young submits that the current step system that she is using places a great onus on Mr Young and does not allow her independent access to his vehicle. She says that relying on him causes her mental distress and she does not like to be a burden, and she is concerned about the long term impact on him of having to carry the TAD step system in and out of the back of the vehicle and set it up each time she needs to get in or out of it. Mrs Young says the current two-step system weighs a total of 11 kilograms, and he already struggles to set it up. Mr Young gave evidence that, of course, he does not mind helping her but the steps are hard to use because they are big, and hard to get in and out of the vehicle, and it takes time to set them up. He did not suggest he had any real difficulty doing so.
As set out above, Ms Roberts did not identify what the “manual handling risks” would be posed by the TAD steps, and nor does she suggest that Mr Young is unable to lift them. It is relevant that they would be approximately one kilogram lighter than the current steps.
We accept that getting the steps in and out of the vehicle causes some inconvenience, but families commonly experience some inconvenience in assisting a family member, whether disabled or not. We do not think it unreasonable to expect family members who are otherwise able, to assist. We accept that Mrs Young does not wish to be a burden to her husband or anyone else, but we are not persuaded that it is unreasonable to expect Mr Young to provide this form of support, particularly when he appears willing to do so.
We are satisfied that funding for the proposed TAD steps would take account of what it is reasonable for Mr Young to provide by way of support for Mrs Young.
Section 34(1)(f)
The NDIA acknowledges, and we are satisfied, that a support that enables Mrs Young to get into and out of the LandCruiser (and other mobility and access supports) is most appropriately provided through the NDIS and is not more appropriately funded through another general system of service delivery, such as the health system.
Conclusion
We are not satisfied of all of the matters in s 34(1) in relation to the funding of a Turny seat. In particular, we are not satisfied that it represents value for money in that the costs are reasonable, relative to the benefits achieved and the cost of alternative support. We are not persuaded that the steps proposed by TAD cannot achieve the same benefit, at a fraction of the cost. We note that Mrs Young’s current plan includes funding for an occupational therapist to explore options and that funding appears still to be available for this purpose.
For these reasons, we affirm the decision under review.
I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey, Member D Connolly
................................[sgd]........................................
Associate
Dated: 31 March 2017
Date of hearing: 2 March 2017 Date final submissions received: 10 March 2017 Advocate for the Applicant: Ms S Roller, Disability Advocacy New South Wales Solicitors for the Applicant: Ms R Johnston, Legal Aid New South Wales Solicitors for the Respondent: Ms H McGrillen, National Disability Insurance Agency
2
1