Young and National Disability Insurance Agency (NDIS)
[2025] ARTA 614
•19 May 2025
Young and National Disability Insurance Agency (NDIS) [2025] ARTA 614 (19 May 2025)
Applicant/s: Ms Lee-Anne Young
Respondent: National Disability Insurance Agency
Tribunal Number: 2024/0386
Tribunal:General Member D Heron
Place:Brisbane
Date:19 May 2025
Decision: The Tribunal pursuant to section 105(c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) states that the decision under review be set aside. The matter is remitted to the Agency for reconsideration with the direction that:
Within 14 days of this decision, Ms Young’s statement of participant supports specifies the following supports as reasonable and necessary:
(a)Hydrotherapy as a capacity building therapy support be varied from the current 36 hours per year to 52 hours of capacity building support per year;
(b)All other supports in Ms Young’s existing statement of participant supports are to be replicated for the 12 month plan period;
(c)The date by which the Agency must reassess Ms Young’s plan is to be 12 months after the date on which the above supports are included in Ms Young’s statement of participant supports; and
(d) The management of plan funding is to remain the same as in the existing statement of participant supports.
............................[SGD] ............................
General Member D Heron
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME –- reasonable and necessary supports – consideration of s 34 National Disability Insurance Scheme Act 2013 (Cth) – core supports – psychology – hydrotherapy – ankylosing spondylitis – specialist disability accommodation.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth)Cases
Esber v The Commonwealth (1992) 174 CLR 430
Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250
McGarrigle v National Disability Insurance Agency [2017] FCA 308Shi v Migration Agents Registration Authority (2008) 235 CLR 286
QDKH, by his litigation representative BGJF v National Disability Insurance Agency (2021) FCAFC 189
Re Drake and Minister for Immigration and Ethnic Affairs (No 2)Secondary Materials
NDIS – Operational Guidelines – Reasonable and necessary supports
NDIS – Operational Guidelines – Specialist Disability AccommodationStatement of Reasons
BACKGROUND
Ms Young (the Applicant) is a 42-year-old woman who is a participant in the National Disability Insurance Scheme (the NDIS).
Ms Young met access to the scheme in August 2022 on the basis of physical impairments attributable to her diagnosis of Ankylosing Spondylitis.
This is an application for review of a decision of the National Disability Insurance Agency (the Respondent) regarding reasonable and necessary supports to be funded by the scheme.
On 22 June 2023, Ms Young’s NDIS plan was approved by a delegate of the Chief Executive Officer (CEO) of the Respondent.
On 14 September 2023, Ms Young requested an internal review of the decision not to fund requested supports in the plan including Specialist Disability Accommodation.[1]
[1] Joint Tender Bundle (JTB), T2, Internal Review Request dated 5 July 2023 page 19.
On 14 December 2023, a deemed internal decision came into effect due to the operation of s 25(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) due to the 90-day period specified by section 100(6A) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act)
On 16 January 2024, Ms Young filed an application for review in the Administrative Appeals Tribunal (the AAT). On 12 April 2024, the Tribunal made an extension of time order for Ms Young to make this application for review to 17 January 2024.
At the hearing held on 10 and 11 April 2025 via Microsoft Teams, Ms Young was self-represented, assisted by her advocate from Spinal Life. The Respondent was represented by Mr J Sproule of Counsel, instructed by Mr A Price of Mills Oakley.
The Joint Tender Bundle was admitted into evidence. The following documents were also admitted into evidence:
·Applicant’s NDIS Plan dated 8 April 2021 marked R1
·NDIS Price Guide marked R2; and
·Respondent’s Statement of Facts Issues and Contentions marked as R3.
RECENT TRIBUNAL AND NDIS ACT AMENDMENTS
On 14 October 2024, the Administrative Appeals Tribunal (the AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Also of note is the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Back on Track Act) commenced on 3 October 2024 and made significant amendments to the NDIS Act. The amendments pursuant to section 34 of the NDIS Act will apply to this review.[2]
[2] Section 129 National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No 1) Act 2024.
ISSUES
The dispute has narrowed over the time the matter has been at the Tribunal. The request before me is whether the following supports are reasonable and necessary for Ms Young:
·11 hours core personal care support per day;
·20 hours core community access support per week;
·26 hours capacity building psychology per year;
·52 hours capacity building hydrotherapy per year;
·Low cost assistive technology for pressure relieving cushion for car travel; and
·Specialist Disability Accommodation funding.
THE CURRENT PLAN
On 16 July 2024, the Agency approved a plan under s 48 of the NDIS Act to also include the following supports for Ms Young:
(a) powerlift recline chair
(b) revolution chair
(c) 35 hours per year occupational therapy; and
(d) 3 hours for continence assessment.
On 18 November 2024, the Agency approved a six-month plan under s 47A of the NDIS Act for the period 18 November 2024 to 19 May 2025. The application is also taken to be a review of this decision under section 103(2) of the NDIS Act.
On 4 March 2025, the Agency approved a 6-month plan under s 48 of the NDIS Act to also include the following supports:
(a) 52 hours per year for physiotherapy (pro-rata); and
(b) 36 hours per year for hydrotherapy (pro-rata).
ROLE OF THE TRIBUNAL
My role as a Member of the Tribunal is to make the correct or preferable decision based on the evidence before me in this matter.[3] In reviewing the decision:
(i)the Tribunal stands in the shoes of the delegate/internal reviewer and must make the correct or preferable decision based upon the evidence and other material before it;[4] and
(ii)the scope of the Tribunal’s jurisdiction is determined by reference to the scope of the internal reviewer’s powers under section 100 of the NDIS Act, which is in turn informed by the scope of power under section 33(2) of the NDIS Act.[5]
[3] Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 37
[4]Esber v The Commonwealth (1992) 174 CLR 430 at 440; Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250 at 51; QDKH, by his litigation representative BGJF v National Disability Insurance Agency (2021) FCAFC 189
[5]QDKH, by his litigation representative BGJF v National Disability Insurance Agency (2021) FCAFC 189 at 7
The relevant provisions under the Administrative Review Tribunal Act 2024 (Cth) (ART Act) are sections 54 and 105.
THE LEGAL FRAMEWORK
National Disability Insurance Scheme Act 2013 (Cth)
Section 34 of the NDIS Act identifies what establishes a ‘reasonable and necessary’ support under the scheme. At the commencement of the hearing section 34 of the NDIS Act states that:
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:
(aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(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 an NDIS support for the participant
Note: For the purposes of paragraph (aa):
(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b) a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
Section 35 of the Act provides for the creation of regulations regarding the provision of reasonable and necessary supports funded under the NDIS. The relevant rules are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules).
Rules 3 and 5 of the Support Rules relate specifically to subsections 34(1)(c) - (e) of the NDIS Act and state:
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).
Effective and beneficial and current good practice
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.
3.3 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 take into account, and if necessary, seek, expert opinion.
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.
5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b) costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
The phrase ‘reasonable and necessary’ is not defined in the Act. In discussing the phrase in McGarrigle Mortimer J stated as follows: [6]
‘Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”…the word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase reasonable and necessary supports.’
[6] [2017] FCA 308 at 91.
It is important that I consider the purposes and objects of the Act in conformity with section 34(1) noting that if one of the requirements in ss 34(1)(aa)-(f) is not satisfied, then a support is not reasonable and necessary.
OPERATIONAL GUIDELINES
The Guidelines relevant to this review are the NDIS – Operational Guidelines - Reasonable and necessary supports and NDIS – Operational Guidelines - Specialist Disability Accommodation. Unless the Operational Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in a determination of what are reasonable and necessary supports.
EVIDENCE
I have considered all the written evidence provided in the Joint Tender Bundle filed to the Tribunal, the oral evidence provided at the hearing and the parties’ closing submissions. I will refer to the evidence that is directly relevant to my determination of this matter.
Applicant’s Position
I have considered Ms Young’s current plan goals in making my decision pursuant to section 33(5)(a) of the NDIS Act. The goals are as follows:
·I would like more opportunities to access my community.
·During this plan, I would like to learn to effectively manage the impacts of my disability.
·During this plan, I would like to maintain/increase my mobility.
·I want to live as independently as possible.
Ms Young gave evidence at the hearing on the first day. Her oral evidence is summarised below:
·She explained that her condition is one that will deteriorate over time and become progressively worse.
·Prior to the onset of this condition 7 years ago, Ms Young described that she had graduated from university, was actively employed in her related degree field, had enjoyed travelling the world and led a full and active life, describing herself as an outgoing and adventurous person.
·She describes that currently, she is physically not being able to sit for even a small length of time without extreme pain.
·She described being extremely limited in her bending movements and that she does not have a full range of motion in her body.
·She explained a lot of her muscle tone has been lost, and she is physically deconditioned, prone to falls and experiences a lack of core stability, overall pain and fatigue from sleeplessness.
·She spends a majority of time lying in her bed on her side, changing between left and right, as this position provides for the least pain.
·She uses a 4-wheel walker for mobility stability and a wheelchair for longer community outings.
·She describes that hydrotherapy gives her relief, being water based in taking pressure off her sacrum area. She states she experiences her lowest pain days following these sessions, referring to a better range of motion in her whole body and her body feeling ‘taller’.
·She currently resides in her parents’ home andit is unable to be modified to facilitate her independent access to areas such as the bathroom, bedroom, kitchen or laundry.
·She described her role as mother with primary parental responsibility for her young primary school aged child, who also resides with her at her parents’ home.
·She has trialled staying in an accessible property where hallways were wider, benches in kitchen and bathroom were height adjustable, shower area was wide and accessible.
·She described that her trial in an accessible home gave her greater independence and that she did not need support as often for her daily tasks and self-care.
·She has viewed many private rentals without success, she is on the long waitlists for Department of Housing and for community housing for an accessible property or one that can be modified.
·She describes that psychology had been funded previously in NDIS plans. She finds benefit in being able to work through strategies with a professional around her pain and in living with the reality of her physical impairments via this therapy support.
Ms Young also provided her Statement of Lived Experience to the Tribunal dated 28 February 2025. She writes:
My world is now very small since I cannot work, and cannot see my friends as often as I would like. I am unable to sleep in a normal flatbed. I am unable to sit or stand for long periods of time which impacts my ability to pursue my interests and impacts on my daily living.
My impairments have taken away my independence and destroyed my quality of life, my ability to parent how I want to, and have also taken away the life I wanted with my daughter. I need help to do basic tasks. I need help with pretty much everything that requires standing or being in a seated position…
The process of pursuing this appeal to get the supports I need has had a big impact on me. I have not had the opportunity to come to terms with my impairments and restrictions as I have been constantly fighting with NDIA for the supports I need to meet my goals.[7]
[7] JTB, B32, Statement of Ms Young dated 28 February 2025 p 434-435.
Ms Catherine Cummings – occupational therapist
Ms Cummings is an occupational therapist engaged by the Respondent. Ms Cummings gave oral evidence on the second day of the hearing. Her evidence can be summarised as:
·She assessed Ms Young in her current home on 11 September 2024.
·During the assessment, she observed Ms Young mobilising around the home at a slow pace, over short distances before explaining she was experiencing pain.
·Observed Ms Young could undertake movement required to dress herself while seated and recommendations were made for long handled aids that could assist her independence.
·Described that pacing can be used as one strategy to conserve her energy reserves to undertake more daily tasks.
·Explained that more support worker hours can promote dependency, whereas it is important to retain conditioning and movement to maintain as much self-efficacy as possible.
·Described that the Care and Needs Assessment (CANS) tool that was used in the assessment provides a guide for how many support hours a person may need up to a maximum amount in each category.
·Explained that with the score of 4.3 on the CANS, clinical reasoning is then applied to determine the exact number of hours the person requires within that group banding of up to a maximum of 11 hours.
Ms Cummings also provided her Functional Capacity Assessment dated 30 September 2024 to the Tribunal. Ms Cummings undertook the functional assessment with Ms Young in her parents’ home on 11 September 2024 and noted:
·Ms Young relied on holding onto walls or furniture for support mobilising around the home and was able to walk up to 5 metres without support.
·Used walls for support of when clearing thresholds or turning, presenting with reduced balance.
·Recommends continued engagement in exercises to build strength and improve balance would be of benefit.
·Ms Young explained her sitting tolerance is around 10-15 minutes before her pain and discomfort limitation is reached.
·Described that she is currently hiring a motorised wheelchair for accessing the community. Exploring lighter weight options and equipment to get the wheelchair out of vehicles independently.
·Ms Young explained she currently is receiving assistance from a support worker for meal preparation tasks. Ms Cummings recommended that bulk meal preparation by a support worker be considered where possible.
·Described that she receives assistance with laundry, changing her sheets, household cleaning and assistance with tasks such as washing up that may require standing or bending to stack and unstack dishwasher for example.
Ms Cummings stated that by using appropriate planning and pacing strategies, in her opinion Ms Young has the capacity to do more household and daily living activities for herself such as meal preparation, packing of snacks or lunch boxes, running small errands. She also made the recommendation that Ms Young could undertake her land-based exercises frequently during the week at home without any supervision.[8]
[8] JTB, B34, Functional Capacity Report of Ms Cummings dated 11 September 2024 p495.
Ms Hannah Rowe – occupational therapist
Ms Rowe is an occupational therapist engaged by Ms Young for her NDIS Home and Living application. She provided a report dated 3 May 2023 with recommendations for assistive technology as well as:
A minimum of 35 hours of occupational therapy intervention over a 12 month plan period as follows:
·15 hours for biannual assessments to monitor progress, inclusive of travel, documentation and/or report writing as required.
·20 hours for Assistive Technology trials and prescription, inclusive of report writing and documentation.
·4 hours for additional administrative and case management tasks, including liaison with Lee-Anne’s allied health team and key stakeholders.
Funding for the provision of in-home and community supports is imperative for Lee-Anne to support her safety, maintain her skills. In alignment with the SDA report completed, Lee-Anne requires a minimum of:
·4 hours a day for self care and household assistance
·16 hours a week for community access, engagement in social and recreational activities, and provide assistance with community participation.[9]
[9] JTB, T8, Ms Rowe Report dated 3 May 2023, p109-110.
Ms Rowe provided a second report dated 11 September 2023 after the SDA funding decline. She states her report addresses section 12 and 14 of the SDA legislation and should be read in conjunction with her Occupational Therapy Report Functional Capacity Assessment Report dated 3 May 2023. She writes:
It is noted that this report [3 May 2024] was not acknowledged in the list of evidence reviewed contributing to the initial decision to reject Lee-Anne’s application for SDA.[10]
[10] JTB, T15, Ms Rowe report dated 11 September 2023, p133.
In her 11 September 2023 report, she states that Ms Young requires:
Person-to-person support for at least 6 hours a day to support her with self-care tasks including:
·Dressing: Lee-Anne requires physical assistance with dressing and undressing her lower limbs, including footwear.
·Showering: Lee-Anne requires physical assistance to thoroughly wash her hair and wash her lower limbs.
·Personal Care / Toileting: Lee-Anne requires support with her physical condition and pain levels.
·Mobility and Transfers: Lee-Anne requires support dependent on her physical condition, with higher levels of support required on days where she is experiencing significant pain and mobility. For example, she is unable to sit up out of bed and mobilise to the bathroom without physical assistance. Lee-Anne also requires person-to-person support at times when she needs to transfer equipment in/out of her car due to not being able to lift her mobility equipment.
·Lee-Anne is dependent on others to complete household tasks including laundry and cleaning as her physical impairment and pain is such that she cannot participate. Presently, Lee-Anne is dependent on others to complete all meal preparation tasks due to the inaccessibility of her environment. For example, she is unable to stand at the bench without pain, or reach and bend to access equipment and appliances.
Ms Rowe gave oral evidence on the second day of the hearing. Her evidence can be summarised as:
·Recommended 4 hours of core support for daily activities and 16 hours for community participation in her first report where her assessments took place in March 2023 and the report completed in May 2023 at Ms Young’s former residence.
·The 16 hours a week for community access recommendation was based around a minimum 3 hours a week for therapy appointments and minimum 8 hours for transporting to school/appointments. Additional hours were for shopping or ad hoc activities.
·She increased her recommendation in September 2023 to 6 hours core support for self-care and her daily activities.
·She explained that her recommendation increase in core support was due to Ms Young not having the assistive technology that Ms Rowe recommended in her earlier report and because the SDA request had been declined, meaning more daily support was now required.
·She explained she has not formally assessed Ms Young in the current home, however noted that she has attended the residence and observed the environment with Ms Young in it.
In her oral evidence Ms Rowe describes that ‘pacing is an effective tool that can be used in conjunction with a variety of other tools and strategies’ adding ‘I would say it’s not sufficient in isolation’.[11]
[11] Transcript day 2 at 3:26
Rheumatologist Dr L Young supplied a letter dated January 2023 that outlines her recommendation that Ms Young has difficulty moving around, preparing meals, accessing the community and getting out of bed. She states she would ‘benefit from specialist disability accommodation that is fully accessible. She needs kitchen benches that support her at the correct height as well as supports in bathroom and kitchen’.[12]
[12] JTB, T3, Letter of Dr L Young dated 16 January 2023, p11
There are also reports provided from three separate physiotherapists dated September 2023. These reports were provided in support of Ms Young’s SDA application review to the NDIS. The first physiotherapist Mr Thompson recommends 1:1 support of 11 hours per day, noting his opinion that Ms Young meets the extreme functional impairment SDA criteria as she is:
Only able to mobilise with a 4-wheel support frame now due to progressing decline in functional mobility. Not only does she now require a full-time aid but can only tolerate mobilising/standing for 5-10 minutes before needing a substantial rest. If she has to mobilise over this period she will be bedridden for 24-48 hours due to her pain levels. Heavy assistance is required during this period to do basic functional tasks such as changing, toileting and usual parenting tasks for her daughter.[13]
[13] JTB, T12, Report of Mr Thompson dated 4 September 2023, p121
Ms Young also saw Mr Mair, a physiotherapist who authored a physiotherapy SDA housing report dated 5 September 2023. He notes that his report:
is supporting the request for a NDIS plan review providing sufficient funding for a single resident, Improved Liveability apartment with 1:1 support for up to 11 hours throughout the day as required.
Mr Mair describes that Ms Young:
has extreme loss in the range of motion at her lumbar spine and hips. Her active range of motion for forward flexion has her hands reach the superior Patella (top of the kneecap). This means that she is unable to complete and tasks that require her to forward flex past her knees. Tasks that require this include (but is not limited to):
·Showering
·Dressing
·Putting on shoes
·Picking up items off the floor
·Helping her daughter with ADL’s [activities of daily living]]
·Accessing the bottom of the fridge
·Emptying the washing machine and dishwasher
·Gardening
·Cleaning
Furthermore, Lee-Anne has a severe lack of lumber extension and lateral flexion with extension measuring at ~5 degrees (fingertips to gluteal fold) and lateral flexion to the L) 13cm from knee and R) 16cm from knee. The expected measurement for Lee-Anne’s age would be 20 degrees extension and hands to touch the sides of the knee during lateral flexion. This extreme reduction to her range of motion limits her ability to perform overhead tasks like hanging out washing, reaching into high cupboard and cleaning after toileting.[14]
[14] JTB, T13, Physiotherapist SDA Housing Report Mr Mair dated 5 September 2023 p 125-126.
Ms Heinzelmann, a senior physiotherapist provided a report dated 6 September 2023 for Ms Young’s SDA request. Her recommendations are 1:1 support 11 hours per day and that Ms Young meets the SDA criteria stating:
Lee-Anne is unable to bend forward without significant pain in her back. This has a major impact on her self-care in multiple ways. She is unable to bend to wash her lower limbs or feet, she cannot pick up objects from the floor, she is unable to load or unload a dishwasher or reach for food in the lower part of the fridge. Putting on shoes becomes incredibly challenging, furthermore, standing and cooking is a task that requires lots of energy and the ability to stand for a long period of time. These all impact Lee-Anne’s pain and ultimately her function with day-to-day tasks.[15]
[15] JTB, T14, Report of Ms Heinzelmann dated 6 September 2023 p 127.
She further states that:
Lee-Anne trialled accessible accommodation…which proved to be extremely beneficial to her. Lee-Anne had a 1:1 support in accessible accommodation, with benches that were height adjustable and a bathroom that she was able to move safely in with her 4- wheel walker. During this period, Lee-Anne reported that she was able to access different activities in the community with the assistance of her 1:1 support, she also reported that her pain levels were manageable and had fewer days of debilitating pain.[16]
[16] JTB, T14, Report of Ms Heinzelmann dated 6 September 2023 p131.
Ms Heinzelmann also supplied a letter dated 5 November 2024 that outlined her recommendation about the safety features of a walking frame as preferred over the use of a walking stick for Ms Young’s mobility.
Mr Parker, occupational therapist also prepared a report dated 22 July 2024 outlining additional evidence supporting the assistive technology requests for Ms Young.[17]
[17] JTB, B8, Letter of Mr Parker dated 3 April 2024 p294.
Ms Kapoor, senior physiotherapist with special interest in continence and pelvic health also prepared a report dated 27 October 2024 recommending 12-16 weeks pelvic health therapy sessions stating provisional diagnoses of:
Provisional Diagnoses:
• Stress Urinary Incontinence
• Pelvic organ Prolapse (anterior vaginal wall stage 2 A)
• Urinary storage symptoms
• Defecation difficulties
• Fecal incontinence• Overactive pelvic floor muscles.[18][18] JTB, B26, Ms Kapoor Report dated 27 October 2024 p391.
Ms Janssen, home and living specialist provided a report supporting Ms Young’s application for the review of the reviewable decision regarding SDA. Ms Janssen states:
As documented in Lee-anne’s OT report, Lee-Anne requires up to 11 hours of 1:1 support per day to assist her with her daily activities. Lee-Anne requires support for shopping, planning and preparing meals, cleaning, self-care and to continue caring for her daughter. This support is critical for Lee-Anne to maintain her independence, manage the symptoms of her disability and care for her daughter.[19]
[19] JTB, T22, Ms Janssen Home and Living Supports Application undated p176-179.
Ms Bryan, a physiotherapist provided her letter dated July 2024 outlining Ms Young’s engagement in hydrotherapy, recommending weekly therapy and an outline of the therapy benefits and outcomes. The letter notes:
Improving strength, stability, mobility and general conditioning will enable Lee-Anne to be more independent in looking after herself and her daughter at home, eventually reducing the need to rely on support workers, in line with her NDIS goals.[20]
[20] JTB, B10, Ms Bryan letter dated 2 July 2024, p.303.
I acknowledge the views expressed by all the professionals who gave oral evidence and who prepared letters and reports. I am satisfied that although there are differences, the cumulative clinical evidence cited above indicates the following:
·Ms Young uses a 4-wheel walker and a wheelchair for longer community outings.
·Ms Young finds sitting for any length of time extremely painful, with her sitting tolerance limit between 5-15 minutes.
·Ms Young has significantly reduced capacity to undertake bending or trunk rotation activities.
·Ms Young scored 4.3 on the Care and Needs Scale (CANS) undertaken by 3 separate professionals.
·4.3 CANS score indicates a person can be left alone for part of the day and overnight, with support required of up to 11 hours per day.
·Within an accessible home environment, Ms Young would require less direct person to person support worker assistance for her self-care and her in-home daily activities.
CONSIDERATION
Support one – Increased Core supports
Whether the support is necessary to address the needs arising from the impairment in relation to which Ms Young met the disability requirements: section 34(1)(aa) NDIS Act
In her core support category, Ms Young is currently funded for:
·21 hours per week of individual supports
·10 hours per week for ‘Other’ supports, which may involve support in the community or other supports for when you are not in the home.[21]
[21] JTB, T10, NDIS Home and Living Decision, 13 June 2023, p115
Ms Young is seeking 11 hours a day of personal care support and 20 hours of community access support per week.
Ms Young in her oral evidence explained that she requires full support in the mornings as she wakes up with a stiff body due to the effects of ankylosing spondylitis. She describes that she is unable to bend or twist to be able to access much of her bathroom and shower areas.
Ms Rowe, occupational therapist describes that Ms Young ‘can walk up and down stairs at a slow pace, holding on to the rail. Lee-Anne’s mobility challenges impact the size of step she takes, which has led to catching her foot on the nosing of the step and tripping over. Lee-Anne mobilises at a slow pace and is not able to walk more than 10 metres without pain’.[22]
[22] JTB, T8, Functional Capacity Report of Ms Rowe dated 3 May 2023 p86
Ms Cummings, occupational therapist describes Ms Young’s functional difficulties in the following way:
Analysis and interpretation of the medical reports indicates that due to the effects of the medical conditions, Ms Young experiences difficulties undertaking tasks that involve:
·strenuous activity requiring exertion
·moderate, heavy or forceful manual handling including lifting, carrying, pushing and pulling
·repetitive or sustained use of the upper limbs above shoulder height in an outstretched or overhead manner due to increased load on the lumbar spine
·frequent and sustained bending, twisting, jarring or jolting of the lumbar spine
·prolonged sitting, standing or walking
·frequently traversing rough / uneven ground, inclines or steps
·unsupported squatting or kneeling
·prolonged periods of driving
·sustaining activity participation despite experiencing chronic pain
·maintaining endurance due to fatigue and intake of opioid medication (presently a daily intake).[23]
[23] JTB, B34, Functional Capacity Report of Ms Cummings dated 11 September 2024 p459
I am satisfied on the totality of the evidence that s 34(1)(aa) of the Act is satisfied as support worker assistance both in-home and in the community is necessary to address the needs of Ms Young has as a result of her physical impairments for which she met access to the NDIS.
Whether the support will assist Ms Young to pursue the goals, objectives and aspirations in the participant’s statement of goals and aspirations: s 34(1)(a) of the NDIS Act
I have considered Ms Young’s current plan goals around living as independently as possible, with more community access and maintaining/increasing her mobility.
It is important that I note here Ms Cumming’s opinion contained in her Functional Capacity Report that:
Ms Young has become reliant on support worker assistance for activities such as transfers, meal preparation, parental tasks, and light household duties. Ms Young does have pain and needs to consider planning and pacing activities before embarking on a day. Planning is a task that Ms Young reported is exhausting. She stated that she would like to not have to think about this anymore. However, avoidance of daily routine activities and staying in bed can result in further stiffness, deconditioning and contribute to pain.
Where possible, Ms Young is encouraged to continue engaging in the activities that she is able to do using planning and pacing strategies to maintain self-efficacy, maintain physical function, and improve psychological well-being. Ms Young will always need to ensure that she is balancing rest and activity, and not overschedule her day to avoid the boom-bust cycle of pain. Unfortunately, pain cannot be eliminated despite rest, and self-management is promoted in the guidelines regarding chronic pain management.
Due to Ms Young’s parental and household responsibilities, she may need to prioritise these duties over attending formal exercises. Movement, regardless of whether it is formal exercise or household activities is of benefit for Ms Young.[24]
[24] JTB, B33, Functional Capacity Report of Ms Cummings dated 30 September 2024 p491.
In response, Ms Young explained in her closing oral statement her view that she does want to become more independent and that is why engaging in her weekly capacity building therapies is an important goal for her, however to do this and build her capacity she needs more support.[25]
[25] Transcript, day two 2:46:27.
I am satisfied that the evidence supports that support worker assistance will assist Ms Young pursue her plan goals therefore s 34(1)(a) is met.
Whether the support will assist Ms Young to undertake activities to facilitate the participant’s social and economic participation: s 34(1)(b) of the NDIS Act
Ms Young’s current plan goals state she would like to have more opportunities to access my community. Her oral evidence explains her fatigue especially when needing to access the community and that she requires her wheelchair or four-wheel walker for longer outings. Increased support worker assistance would allow for Ms Young to have this flexibility and to be supported, safely in the community.
I am satisfied that the evidence supports that support worker assistance will assist Ms Young pursue her plan goals therefore s 34(1)(b) is met.
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: s 34(1)(c) of the NDIS Act
In her current plan, Ms Young receives core funding of 31 hours that can be used flexibly in-home or in community. In oral evidence, Ms Young explained that the current support hours do not provide enough time to get her ready in the mornings, undertake her daily living tasks and also have support with evening activities such as meal preparation or with community access.
I have had regard to the weekly timetable of support and support worker roster provided in the evidence materials updated as at February 2025.[26] The schedule shows the there is support worker assistance starting from 7am on weekdays, then ad hoc assistance during the day, with all weekday formal supports concluding by 6pm. There are formal supports provided on Saturdays and Sundays starting at 10am and ending by 3pm. Evenings are not listed as having any formalised supports.
[26] JTB, B32, Support staff roster, routines and schedules dated 28 February 2025 p418.
Ms Cummings report is the most recent assessment dated September 2024 and undertaken in Ms Young’s current residence. In this way, Ms Cummings report provides the most current understanding of Ms Young’s function in her environment when compared with the reports of Yule and Rowe that took place at her former residence.
Ms Yule, recommended in January 2023 1:1 support worker assistance for 6 hours per day for daily activities, 20 hours per week for community access and scored Ms Young as 4.3 on the CANS.[27] Yule’s recommendation of 6 hours per day is based on:
·Direct assistance for meal preparation on a daily basis
·Physical assistance for bed transfers (when required)
·Daily light physical assistance for personal hygiene routine, including showering, dressing
·Full assistance for all household activities, including cleaning, laundry, shopping
·Full assistance to access the community to attend capacity building appointments
·Assistance to perform some of the physical aspects of caring for her daughter
[27] JTB, T4, Specialist Disability Accommodation Assessment Report of Ms Yule, dated 23 January 2023 p45.
In May 2023, Ms Rowe undertook her assessment with Ms Young in her former home and scored Ms Young as 4.3 on the CANS.[28] Ms Rowe recommended 4 hours per day for daily activities and 16 hours per week for community access.[29] Ms Rowe updated her recommendation to reflect ‘at least 6 hours a day’ for daily activities in September 2023 following the decision by the NDIS to decline SDA funding.[30]
[28] JTB, T8, Functional Capacity Report of Ms Rowe dated 3 May 2023, p96-97, 101.
[29] JTB, T8, Functional Capacity Report of Ms Rowe dated 3 May 2023, p109-110.
[30] JTB, T15, Letter from Ms Rowe dated 11 September 2023, p134.
Ms Cummings also scores Ms Young as 4.3 on the CANS, and states that while this score reflects needing support daily, it is support up to a maximum of 11 hours in a day and that ‘much of her needs can be met through appropriate environmental modifications and AT’.[31]
[31] JTB, B34, Functional Capacity Assessment of Ms Cummings, dated 30 September 2024, p 490-491.
I do note the reports of the other professionals such as Ms Heinzelmann, senior physiotherapist; Mr Thompson, physiotherapist; Mr Mair, physiotherapist and Ms Janssen, home and living specialist who outline that they support the recommendation that Ms Young requires up to 11 hours of support per day. I place no criticism on these letters and reports, however as they do not contain individual assessments of Ms Young’s function, I prefer to focus my deliberations around the reports of Yule, Rowe and Cummings.
Overall, I prefer the report of Cummings over Yule and Rowe because it is most current in time and location. I find also that the Cummings report distinguishes between functional capacity reported to her, with functioning that is directly observed by her as compared with the Rowe report where the distinction isn’t as clearly delineated.
Ms Cummings opines that assistive low-cost supports would go some way to meeting Ms Young’s support needs at a substantially lower cost and increase her independence with respect to mobility and self-care. She recommends the use of assistive equipment for increased independence such as a:
·Long handled sponge
·Sock donner
·Dressing stick
·Trolley
·Bottom wiper
·Kitchen stool
·Long handled dryer, long handled shower screen wiper, long handled cleaning aid
·Terry towel robe to reduce fatigue when drying after shower; and
·Vegetable chopper
It is important that I note Ms Cummings explained her support hour recommendations were made with the proviso that there was also an appropriate physical environment in place. She states that:
Additional recommendations for minor home modifications in this report including grab rails and an adjustable handheld shower hose are dependent on Ms Young’s future accommodation and the modifications that may already be in place. [32]
[32] Ms Cummings transcript day two, 42.18
In relation to this point, Ms Young has explained she does not have the ability to undertake home modifications or environmental changes in the current home of her parents. Ms Young confirmed in her oral evidence that her parents do not agree to changes being made to their kitchen areas, toilet, bathroom or to change the heights where utensils are kept or to have stools placed in the communal areas. Ms Young further explains her parents do not allow her to use her 4-wheel walker inside the home.[33]
[33] JTB,B34, Functional Capacity Assessment of Ms Cummings, dated 30 September 2024, p 472
She gave oral evidence that she has not been able to rent an accessible home nor one that is single storey, or able to be modified. I am satisfied on this oral evidence and the written material supplied, that she has undertaken sufficient exploration and searches in the rental market. As such, it is fair I consider her present circumstances in relation to her mobility and support needs in this current home environment.
Ms Cumming in her oral evidence stated:
So without the cooperation of your parents and understanding your condition and the allowances that need to be made, it does make it more difficult. I acknowledge that because the usual recommendations would be to keep commonly used items between waist and shoulder height so that you could access them.[34]
[34] Transcript day two 58.09 -58.19
Ms Cummings states that if Ms Young had accessible measures in place she would require 5 hours per week for daily activities and 10 hours per week for community access. It is important to point out that Ms Cummings did clarify in oral evidence that her recommendation is that support stay at current levels until these measures can be achieved.[35] I agree with this point as the evidence before me shows that Ms Young currently requires some daily support with her self-care and activities.
[35] ibid
Ms Young is requesting up to 11 hours per day daily activities support and 20 hours per week community participation. The Tribunal does not consider this intensity of support worker assistance would be value for money based on the benefits to be achieved and the cost of alternative supports on the totality of the evidence.
Noting the Agency does not contend for any reduction in the current flexible core supports of 21 hours a week, on balance the evidence before me does not support the increase to core supports in daily living. Furthermore, on the evidence there is not sufficient particularisation around the increased need for community participation hours to be satisfied that it also satisfies s 34(1)(c) of the Act.
Taking into account the lived experience evidence and the evidence of the professionals I do not find that any increase to the current core supports would satisfy value for money in that the costs of the support are reasonable relative to both the benefits achieved and the cost of alternative support under s 34(1)(c) of the Act.
As s 34(1)(c) of the Act is not satisfied there is no need for me to consider the remaining criteria regarding the increase in core daily activities and core community participation.
Support two – 52 hours of hydrotherapy
Ms Young is currently funded for 36 hours of hydrotherapy over a 12-month period. She is requesting weekly hydrotherapy.
Ms Young describes in her oral evidence that hydrotherapy gives her ‘the biggest relief’ due to being able to take the pressure off her sacroiliac joint pain. She further describes her ‘hydro days’ as being her lowest pain days, afterwards she describes ‘feeling taller and straighter’.
Ms Bryan, who is Ms Young’s physiotherapist, submitted a letter in response to the Agency’s Statement of Facts Issues and Contentions dated 2 July 2024. She states in this letter that:
Lee-Anne’s deconditioning due to severe chronic pain has left her core and stability muscles in very poor condition. She fatigues extremely quickly and is then likely to use compensatory muscles and movements. This leads to the risk of placing stresses and strains on other areas and to pain and/or injury. For this reason, when performing higher level exercises Lee-Anne requires someone to ensure she uses the correct biomechanics and knows when to stop or focus on alternate areas to avoid unwanted movements or muscle activation. Having weekly supervised sessions ensures Lee-Anne is able to perform more challenging exercises in a safe environment without risk of flare-ups whilst continuing to build her exercise tolerance.[36]
[36] JTB, B10, Letter of Ms Bryan, dated 2 July 2024, p 305
The Agency contends that the benefits described by Ms Bryan aren’t sufficiently specific to evaluate the cost benefit of hydrotherapy insofar as it is sought for general health and fitness. Further the Agency states there is limited detail on the evidence available about Ms Young’s progress or sustained long-term gains from hydrotherapy, that may reduce future support needs.
On the evidence provided from both Ms Bryan and Ms Young’s lived experience evidence, I find that hydrotherapy has provided Ms Young with the ability to exercise in an environment that provides a reduced risk of pain to gradually build her strength. This is important consideration as Ms Cummings has stated in her report:
Ms Young would benefit from continued engagement in exercises to build strength and improve balance.[37]
[37] JTB, B34, Functional capacity assessment Ms Cummings dated 30 September 2024, p 466.
On the evidence before me, particularly the written evidence from Ms Bryan I accept that the weekly funded physiotherapy would be complemented by weekly hydrotherapy in targeting different muscles in the land and water environments. I accept Ms Young’s evidence that being able to improve her strength through physiotherapy, when combined with the effects of being able to improve strength, stability and general conditioning in the water, enables greater independence and endurance in her daily life activities.
I am satisfied that weekly hydrotherapy represents value for money under capacity building daily activities and would be reasonable, taking into account the benefits to be received by Ms Young around increasing her stability, her physical conditioning and increasing her capacity to become more independent.
On the evidence before me I am satisfied that hydrotherapy as a weekly capacity building support meets ss 34(1)(aa)-(f) of the Act.
Support three – Psychology 26 hours per year
I note that in a previous NDIS plan dated 22 June 2023, psychology was listed under the capacity building daily activity support budget. Ms Young explained that she was using her flexible capacity building funding towards psychology and was finding benefit from the support.
While I found that Ms Young’s oral evidence was honest and compelling regarding the capacity building benefits she has received through psychology, the recent changes in the NDIS legislation have narrowed the legislative criteria. The new legislation particularly s 34(1)(aa) says that for a support to be funded it must address the needs from the impairments for which NDIS access was met.
At the outset of the hearing, I asked the Agency to confirm the impairments for which Ms Young had met access to the NDIS. The Respondent confirmed that Ms Young met access from her physical impairments arising out of her ankylosing spondylitis. While Ms Young has openly and sincerely described the psychosocial impacts flowing from her physical impairments, she has not met the NDIS access criteria in relation to any psychosocial impairment.
I am of the opinion that s 34(1)(aa) of the Act therefore cannot be satisfied, and that as a result 34(1)(c) and (d) are not met. Accordingly, psychology cannot be funded in Ms Young’s plan as a reasonable and necessary support as 34(1)(aa) of the Act has not been satisfied.
Support four – Low cost assistive technology
The Agency has provided funding of $1,500 for low cost assistive technology in the current plan. There is insufficient evidence before me to support any variation to this decision. I understand that further details around the cushion including specifics of the trials undertaken and quotes will be presented to the Agency in due course.
I note from Ms Cummings report and also Ms Young’s oral evidence that she is currently working with her OT to determine if a pressure relieving cushion will assist with pain management and increase her tolerance for sitting. I note she mentioned that trials of various products so far have been unsuccessful.
Accordingly, I agree with the Agency’s position in funding the low cost assistive technology $1,500 in the plan. There is insufficient evidence to satisfy the legislative criteria for any further funding at the present time.
Support five - Funding for Specialist Disability Accommodation: Improved liveability, apartment 1 resident 2 bedrooms.
The question to be answered in determining this support is not whether Ms Young would benefit from having a home that is fully accessible. The question is whether Ms Young meets the strict eligibility criteria for SDA under the legislation. Under the NDIS, the purpose of SDA is to provide a range of bricks and mortar housing that is highly specialised for people with extreme functional impairment or very high support needs.
The NDIS funds SDA as a capital component in a plan paid yearly to the owner of the home, this is separate to direct person to person supports. I refer to the Supports for Participants Rules 2013, which details the following responsibilities of the NDIS relating to housing:
7.19 The NDIS will be responsible for:
(a) supports to assist a person with disability to live independently in the community, including by building their capacity to maintain a tenancy, and support for appropriate behaviour management; and
(b) home modifications for accessibility for a person in private dwellings; and
(c) home modifications for accessibility for a person in legacy public and community housing dwellings on a case-by-case basis but not to the extent that it would compromise the responsibility of housing authorities to develop, maintain and refurbish stock that meets the needs of people with disability; and
7.20 The NDIS will not be responsible for:
(a) the provision of accommodation for people in need of housing assistance, including routine tenancy support and ensuring that appropriate and accessible housing is provided for people with disability; or
(b) ensuring that new publicly-funded housing stock, where the site allows, incorporates Liveable Housing Design features.
The Agency in their closing submissions spoke to the difficult position that Ms Young currently experiences not living in accessible accommodation and acknowledging that she has not been able to secure any suitable accommodation. The Agency further acknowledged that her current living arrangements are not appropriate for her disability-support needs.
The Agency’s position regarding SDA for Ms Young as a support is however that the NDIS does not have the responsibility for ‘housing people with disability, other than participants eligible for SDA’.[38]
[38] NDIS Act s 34(1)(f); Supports Rules, r 7.20; Transitional Rules, Schedule 1 (item 29) and Schedule 2 (items 1, 19).
Eligibility under the SDA Rules
Specialist Disability Accommodation funding is designed to support a minority subset of participants within the NDIS, rather than as a housing option that is open to all NDIS participants. The SDA Rules provide the strict criteria that must be satisfied in order for a participant to be eligible for SDA.
Section 11 of the SDA Rules relevantly prescribes the criteria for eligibility for SDA and provides as follows:
11 Eligibility to receive support for specialist disability accommodation.
A participant is eligible to receive support for specialist disability accommodation under the National Disability Insurance Scheme if the CEO is satisfied that:
(a) the participant:
(i) has an extreme functional impairment (see section 12); or
(ii) has very high support needs (see section 13); and
(b) the participant meets the SDA needs requirement (see section 14).
Therefore, to meet the ‘eligibility requirements’ for SDA, I must be satisfied on the evidence that Ms Young has an ‘extreme functional impairment’[39] or ‘very high support needs’’[40] and then additionally that Ms Young meets the ‘SDA needs requirement’.[41]
[39] Rule 12, SDA Rules
[40] Rule 13, SDA Rules
[41] Rule 14, SDA Rules
Does Ms Young meet the extreme functional impairment criteria?
Under Rule 12 of the SDA Rules, to have an extreme functional impairment, Ms Young must firstly have extremely reduced functional capacity in either her mobility, self-care or self-management. Secondly, she must also have a very high need for support in undertaking these activities even with assistive technology, equipment, or home modifications.
Does Ms Young have an extremely reduced functional capacity in relation to mobility, self-care or self-management - Rule 12(1)(a) of the SDA Rules?
The report of Yule states that she meets the requirements of Rule 12(1) of the SDA Rules under mobility as:
Lee-Anne was observed to mobilise with a slow and unsteady gait. High frequency of falls resulting in previous injuries, along with associated high falls risk Unable to utilise any assistive technology or mobility aids in current dwelling due to very poor environmental access.
Regarding self-care Yule states:
At present, due to the lack of formal and informal supports as well as lack of accessible environment, Lee-Anne is unable to perform some self care tasks on a daily basis, such as regularly unable to shower and is regularly only eating one meal per day. She is bed bound at times when experiencing high levels of back and lower limb pain. Modified Barthel Index Score — 77/100, indicating moderate dependence for self care activities.
Regarding self-management Yule states:
Lee-Anne currently requires full assistance for all aspects of household management tasks, including all meal preparation, cleaning, laundry and shopping tasks due to her significant mobility and physical impairments.[42]
[42] JTB, T4, SDA Assessment Ms Yule dated 23 January 2023 p38
The Agency’s contentions are:
·Ms Young’s impairment does not meet the definition of ‘extreme’. Further her need for support is would not be ‘very high’ if she had access to accessible environments and appropriate assistive technology;
·Ms Cummings’s report states that Ms Young would have improved functional capacity with an accessible bathroom and kitchen area; and a level access, single storey residence that is accessible for her 4 wheel walker and/or wheelchair.
I am not satisfied on the evidence that Ms Young does have an extremely reduced functional capacity in relation to her mobility. On the evidence available Ms Young is able to:
·Mobilise short distances around the home using walls for bracing as needed;
·Drive short distances on occasion; and
· Transfer from sitting to standing independently from a firm surface.
Regarding self-management, I am not satisfied on the evidence that Ms Young does have an extremely reduced functional capacity. The evidence is Ms Young she is able to:
·make appointments, organise activities for herself and her dependents;
·organise bill paying, finances, medical and therapy;
· use a computer, phone, undertake online shopping.
I am not satisfied that Ms Young meets the criteria of having an extremely reduced functional capacity in relation to her self-care. Ms Young’s oral evidence is that she is able to brush her teeth, feed herself, put her feet into slip on shoes, she is also able to shower with moderate assistance.
Ms Cummings report also notes that Ms Young was able to:
· complete showering with moderate assistance;
· feed herself, brush her teeth and wash her face
· dress her upper body in a seated position;
Based on the evidence of Ms Young, she has limitations in respect of certain aspects of her self-care, however these limitations do not meet the threshold of an extremely reduced functional capacity with self-care.
Conclusion
I am not satisfied on the evidence that Ms Young has an extreme functional impairment with extremely reduced functional capacity in either her mobility, self-care or self-management. Therefore, rule 12(1)(a)of the SDA Rules is not satisfied.
While there is no need for me to continue to assess the SDA criteria given rule 12(1)(a) is not satisfied, I do so below for completeness.
Does Ms Young have a very high need for person-to-person supports in undertaking mobility even with assistive technology, equipment or home modifications – Rule 12(1)(b) of the SDA Rules?
There is a high threshold requirement in Rule 12(1)(b) of the SDA Rules. This is because the direct core supports required must qualify as being a very high need and the participants functional impairment must be extreme. As explained, this is due to SDA being an expensive capital cost separate to any person-to-person supports. Therefore, the financial sustainability of the scheme must be taken into consideration for the costs that will be incurred over the participants lifetime.[43]
[43] Section 3 (3)(b) NDIS Act
There are a number of assistive technology items such as the power lift recline chair, mattress, bed, along with items that are still being scripted such as the power wheelchair and car assistive supports that have been agreed to be funded by the NDIS. While I agree this equipment will not eliminate direct support worker assistance, I find on the evidence it will reduce the need for direct core support for Ms Young.
In closing submissions, the Agency referred on the evidence of Ms Cummings who states that an accessible bathroom and kitchen along with assistive equipment would reduce Ms Young’s need for person-to-person support in the home. The Agency’s position is, and I agree, that while noting Ms Young does not have permission to undertake home modifications to her parents’ home, this is not a relevant factor to the statutory enquiry posed.[44]
[44] R3, Respondents Statement of Facts, Issues and Contentions dated 18 March 2025, p 11.
The Agency’s position is that the remaining support that Ms Young will require for her mobility will not be very high with the use of assistive technology or home modifications within the meaning of Rule 12(1)(b) of the SDA Rules.
I find that Ms Young does not have an extreme functional impairment for the purposes of Rule 12 of the SDA Rules.
Does Ms Young have very high support needs? - Rule 13 of the SDA Rules
Rule 13 of the SDA Rules states that a participant must have very high support needs explaining that:
When a participant has very high support needs
(1) A participant has very high support needs if:
(a) the participant has lived in specialist disability accommodation for extended periods and living in that accommodation has impacted on the capacity of the participant to transition to alternative living arrangements and support; or
(b) the participant has a very high need for person-to-person supports, either immediately available or constant, for a significant part of the day and either:
(i) there are limitations in the availability, capacity or capability of the participant’s informal support network or risks to its sustainability; or
(ii) the participant is at risk or poses a risk to others, and that risk could be mitigated by the provision of specialist disability accommodation, having regard to the participant’s response to risk and the interaction of the participant with the environment.
(2) For the purposes of assessing whether a participant has very high support needs, the CEO may have regard to:
(a) any assessment or examination conducted in relation to the participant, including any assessment or examination requested by the CEO under paragraph 36(2)(b) or 50(2)(b) of the Act; and
(b) the daily support requirements of the participant; and
(c) any assessment tool specified by the CEO for the purposes of this paragraph; and
(d) any other matters that the CEO considers appropriate.
As Ms Young has not lived in SDA previously, rule 13(1)(a) of the SDA Rules is not relevant, and I instead must turn my mind to Rule 13(1)(b).
Does Ms Young have a very high need for person-to-person supports, either immediately available or constant, for a significant part of the day – Rule 13(1)(b) of the SDA Rules?
Under Rule 13(1)(b) of the SDA Rules, Ms Young must satisfy that she has a very high need for core supports, immediately available or constant, for a significant part of the day and secondly, that either:
· there are limitations in the availability, capacity or capability of Ms Young’s informal support network or risks to its sustainability; or
· Ms Young is at risk or poses a risk to others, and that risk could be mitigated by the provision of specialist disability accommodation.
Does Ms Young have a high need for person-to-person supports, either immediately available or constant, for a significant part of the day?
Ms Young contends that she meets the requirements of Rule 13(1)(b) of the SDA Rules. Further, she gave evidence that she lives with her aging parents who have their own health issues and primary caring responsibilities. She also gave evidence that there are no other informal supporters who can assist her.
The Agency contends that Ms Young does not have a very high need for person-to-person supports, either immediately available or constant or for a significant part of the day under Rule 13(1)(b) of the SDA Rules. The Agency refers to the following evidence:
·Ms Young does not have or receive any regular formal or informal overnight assistance currently;
·Ms Young primarily requires support with bending tasks, assistance with lower limb dressing and experiences pain when mobilising and sitting;
·The professionals who have assessed Ms Young all agree that reliance on formal supports would decrease if she was living in a home that was able to have home modifications to areas such as kitchen and bathroom bench heights, with access for mobility devices.
I find that the totality of the evidence doesn’t satisfy me that Ms Young requires ‘person-to-person support’ either immediately available or constant, for a significant part of the day. Currently, Ms Young is funded for approximately 21 hours a week for daily supports her current plan. This support is used flexibly throughout the week interchangeably along with her 10 hours a week of community participation funding.
On the evidence before me, Ms Young does not have a very high need for person-to-person supports either immediately available or constant, for a significant part of the day under rule 13(1)(b) of the SDA Rules. Ms Young does not meet the very high support needs for the purposes of Rule 13 of the SDA Rules. Having regard to the above evidence, especially Ms Cummings recommendations around assistive technology, I find Rule 14 is also not met.
Therefore, Ms Young does not meet the statutory criteria to have Specialist Disability Accommodation included in her plan pursuant to Rule 12, Rule 13 nor the eligibility requirements prescribed under Rule 11 of the SDA Rules.
DECISION
The Tribunal pursuant to section 105(c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) states that the decision under review be set aside. The matter is remitted to the Agency for reconsideration with a direction that:
Within 14 days of this decision, Ms Young’s statement of participant supports specifies the following supports as reasonable and necessary:
a) Hydrotherapy be varied from the current 36 hours per year to 52 hours of capacity building support per year;
b) The date by which the Agency must reassess Ms Young’s plan is to be 12 months after the date on which the supports in (a) above are included in Ms Young’s statement of participant supports;
c) All other supports in Ms Young’s existing statement of participant supports are to be replicated from the date of this decision until the reassessment date; and
d) The management of plan funding is to remain the same as in the existing statement of participant supports.
Date of hearing: 10 and 11 April 2025
Solicitors for the Applicant: Self-represented
Counsel for the Respondent: Mr J Sproule of Counsel
Solicitors for the Respondent: Mr A Price, Mills Oakley
I certify that the preceding 125 (one hundred and twenty-five) paragraphs are a true copy of the reasons for the decision herein of General Member D Heron.
...........[SGD]..........
Associate
26 May 2025
0