Young and National Disability Insurance Agency (NDIS) - [2025] ARTA 614

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 308
Shi 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 Accommodation
Statement 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,…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Young and National Disability Insurance Agency (NDIS)

Details

AGLC: Young and National Disability Insurance Agency (NDIS) [2025] ARTA 614
Case: [2025] ARTA 614
Decision Date: 19 May 2025

CaseChat Overview and Summary

The case between Young and the National Disability Insurance Agency (NDIS) before the Administrative Appeals Tribunal (AAT) involved a dispute regarding the provision of certain disability supports under the National Disability Insurance Scheme (NDIS). Ms. Young, a participant in the NDIS due to her ankylosing spondylitis, sought funding for specific supports, including hydrotherapy, psychology sessions, and specialist disability accommodation (SDA). The NDIS, represented by the Agency, contested the necessity and reasonableness of these supports under the NDIS Act and the relevant operational guidelines.

The central legal issues before the Tribunal were whether Ms. Young's needs qualified for the funding of hydrotherapy, psychology, and SDA. Specifically, the Tribunal had to determine if Ms. Young's functional impairments met the criteria for very high support needs as outlined in the SDA Rules, and whether the proposed supports were reasonable and necessary under the NDIS Act. This required an assessment of Ms. Young's current functional capacity, the impact of her condition on her daily life, and the potential benefits of the requested supports.

In making its decision, the Tribunal carefully reviewed the evidence provided, including Ms. Young's testimony and the Operational Guidelines. The Tribunal found that while Ms. Young's condition was severe and progressively debilitating, it did not meet the threshold of an extreme functional impairment necessary to qualify for SDA. The Tribunal also concluded that Ms. Young's need for hydrotherapy and psychology was not so high as to be considered reasonable and necessary under the Act. The Tribunal noted the availability of assistive technology and equipment that would mitigate some of her support needs, reducing the necessity for direct person-to-person support.

The Tribunal ultimately determined that Ms. Young did not meet the criteria for the funding of hydrotherapy, psychology, and SDA. The Tribunal's decision was based on the evidence that Ms. Young's impairments, while significant, did not reach the level required by the statutory provisions and operational guidelines. As a result, the Tribunal dismissed the appeal, affirming the NDIS's decision not to fund the requested supports.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.