YVTM and National Disability Insurance Agency
[2024] AATA 2432
•25 June 2024
YVTM and National Disability Insurance Agency [2024] AATA 2432 (25 June 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/2840
Re: YVTM
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal: Senior Member D Connolly
Date: 25 June 2024
Place:Adelaide
The internal review decision of 1 April 2022 made under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) which confirmed the reviewable decision of 21 February 2022, which was varied on 2 March 2023 (the Applicant’s existing statement of participant supports) after the Tribunal remitted the matter for reconsideration pursuant to subsection 42D(1) of the Administrative Appeals Tribunal Act 1975 (Cth), is varied in the following terms:
(a)the date by which the Applicant’s plan is to be reassessed is 12 months from the date of the implementation of this decision (reassessment date);
(b)the following reasonable and necessary support will be funded under the Scheme:
a.26 hours of psychology over six months, with funding for a progress report;
(c)all other supports in the Applicant’s existing statement of participant supports, except any one-off supports items already purchased, are to be replicated pro-rata from the date on which the psychology support specified above is included in the Applicant's statement of participant supports until the reassessment date; and
(d)the management of the funding for supports and other aspects of the Applicant’s plan will continue without change until the reassessment date.
..................[SGD]................................
Senior Member D Connolly
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – Applicant is a participant with a severe psychosocial impairment - reasonable and necessary supports – Applicant seeks funding for the further supports - support worker assistance – cannabidiol – care and maintenance of dog – ready made meals – continence aids – low cost assistive technology and consumables – short term accommodation and assistance including respite – home modifications – psychology – exercise physiology – art therapy – naturopathy – level 3 specialist support coordination – psychosocial recovery coaching – legal support – advocacy or social work support – access to the complex support needs pathway – the Applicant also seeks self-management
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Appeals Tribunal Regulation 2015
Disability Discrimination Act 1992 (Cth)
Dog and Cat Management Act 1995 (SA)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Plan Management) Rules 2013National Disability Insurance Scheme (Supports for Participants) Rules 2013
CASES
McGarrigle v National Disability Insurance Agency [2017] FCA 308
McGrath and National Disability Insurance Agency [2023] AATA 3719
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.
Reurich v Club Jervis Bay Ltd [2018] FCA 1220Williamson and National Disability Insurance Agency [2019] AATA 2944
Secondary Materials
Allied Health 2 U – Benefits of exercise in psychosocial disability, (Web page) Government, Department of Health and Aged Care, Therapeutic Goods Administration - Guidance for the use of medicinal cannabis in Australia – Summary of evidence by condition, (Web Page)
How Art Therapy Helps Autistic People - A Risk-Free Way to Help Your Child Connect With Emotions, (Web Page) Disability Insurance Agency, Our Guidelines – Supports you can access – Equipment and technology – Assistance animals including dog guides, (Web Page) Disability Insurance Agency, Our Guidelines – Supports you can access – Home and living supports – Short term accommodation of Respite, (Web Page)
National Disability Insurance Agency, Would we fund it – Consumables – Pharmaceuticals, (Web Page)
National Disability Insurance Agency, Assistive technology explained - Assistance animals – Assistance animals assessment template (Web Page) online, Dori S. Hutchinson, Sc.D., Structured Exercise for Persons with Serious Psychiatric Disabilities, (Web Page)
Removing health care barriers for autistic adults, (Web Page) FOR DECISIONSenior Member D Connolly
BACKGROUND TO REVIEW
YVTM (the Applicant), aged 36, became a participant of the National Disability Insurance Scheme (the NDIS) on the basis of psychosocial impairments. He has been diagnosed with severe generalised anxiety, severe panic disorder, post traumatic stress disorder, cluster B personality traits[1], and autism spectrum disorder (ASD).[2]
[1] Evidence Bundle (EB) 2, the Applicant’s materials, Tab 5, Letter from Dr Carolyn Roesler.
[2] EB 1, the Respondent’s tender bundle,T3, p 195.
The Applicant has been in receipt of disability support pension since 2009. At times he has been able to work as a self-employed Uber driver and chauffeur, but he has not worked recently. He lives by himself in a motor home on the edge of a town outside Adelaide. He owns the land he lives on. In July 2022 he sold another property (which he purchased in 2011[3]) to purchase the land. The Applicant lives with his two dogs, Dog A and Dog B. He purchased Dog B in 2020 to be his assistance dog and purchased Dog A in 2022, with a view that she could be trained to take over Dog B’s role.[4]
[3] EB 2, Tab 7.
[4] Transcript, pp 35 – 38.
The National Disability Insurance Agency (the Respondent) approved a two year plan for the Applicant on 14 July 2021, with a scheduled review date of 14 July 2023.[5] The plan included a statement of participant supports totalling $221,795.08, comprising core supports in the amount of $193,972.08 and capacity building supports in the amount of $27,823.00. The supports were to be self-managed. The Respondent has since approved other plans and changed the plan management.
[5] EB 1, T7, p 209.
The events leading to the Respondent’s decision to change the plan management
The Respondent’s material documents that it had concerns in relation to the Applicant’s management of his supports, in the main as a consequence of his dealings with Business D, an assistance animal provider. This, and other factors, led the Respondent to change the plan management from self-management to management by a registered plan management provider. The Applicant seeks to manage his own plan.
The Applicant’s engagement and exchanges with Business D continue to be relevant to issues in dispute. The Applicant first had contact with Business D in about July 2021[6] when he was seeking a canine suitability assessment to have Dog B accredited as an assistance dog. An assessment process commenced in August 2021 and Mr E of Business D informed the Applicant that Dog B could not be accredited as an assistance dog because of his breed.[7] The Applicant immediately commenced the process of purchasing another dog, to be trained as his assistance dog. There is a record that the Applicant’s support coordinator at the time, Support Coordination Business, notified Business D advising that the Applicant wished to apply to Business D for an assistance dog, that is, a new dog.[8] The Applicant told me at the hearing that he recalls there were three options for training a prospective assistance dog, including assisted training, one where the participant is involved in the training. The Applicant opted for this option and received Dog C, a puppy, from Mr E on 18 October 2021.[9]
[6] Transcript, p 163.
[7].EB 1, T3, p 195.
[8] EB 1, S4, p 346.
[9] Transcript, p 183.
The Applicant has claimed that he raised concerns about Dog C’s behaviours and Dog C was returned to Business D on 25 October 2021, at Mr E’s request, so that Dog C could stay with a puppy raiser until his puppy traits were under control.[10]
[10] Ibid.
The Respondent has submitted that the Applicant authorised payment to Business D for Dog C in the amount of $35,213.20 without submitting the relevant documentation to the Agency as set out in the Assistance Animal Guideline. The payment is not in dispute. The Respondent’s attention was drawn to the payment when Business D informed the Respondent that they would be issuing a refund because they had decided not to provide the Applicant with an assistance animal.
The Applicant has submitted that he thought the funds in his plan were sufficiently flexible to allow for this transaction with Business D.
The Respondent formed the view that self-management presented an unreasonable risk to the Applicant. After receiving the information from Business D, on 17 February 2022, following an unscheduled plan review initiated under the then subsection 48(4) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDISAct), the Respondent approved a new plan, to be reviewed by 17 February 2024. The Applicant’s goals were to get help to be treated as a human and be listened to, to set up his house to be able to live independently with his assistance dog, to get assistance with his autism and other disabilities, to increase his mental, physical and emotional wellbeing, to increase his ability to be part of, and interact with, the wider community, including building a social network, and assistance to earn money.[11] The plan included a statement of participant supports including a budget of $193,972.08 for core supports, and capacity building supports in the amount of $30,562.15. The core supports, and most of the capacity building supports were to be plan-managed. One of the capacity building supports, Improved Life Choices, support to set-up, develop and process monthly statements, was to be NDIA-managed.
[11] EB 1, T8, p 223.
The Applicant sought internal review of the delegate’s decision on 21 February 2022 seeking an increase in core and capacity building funding and a change from plan management to self-management of the plan. On the same day, before an internal review by a reviewer took place, the Respondent approved a new NDIS plan for the Applicant with a scheduled review date of 21 February 2023. It included a statement of participant supports totalling $100,392.29, comprising core supports in the amount of $84,995.04 and capacity building supports in the amount of $15,397.25. The core supports were to be plan-managed, Improved Life Choices was to be NDIA-managed and all other capacity building supports were to be plan-managed.[12] The Respondent took the Applicant’s request for review to be a request for internal review of this, the latest approved plan.
[12] EB 1, T9, p 232.
The Respondent’s records show that on 21 February 2022, after the Applicant was notified of the Respondent’s decision, he called the Respondent to let them know he was taken to hospital, escorted by the police. The record states the Applicant had been “very aggressive and abusive for the entire duration of the call. YVTM has requested he be put through a delegate. When I explained, I can escalate the matter, he became more abusive. I had to disconnect the call after polite warnings.”[13] There are other records stating that the Applicant was aggressive during phone calls in relation to the change to plan management and compliance, which are discussed in more detail below along with the Applicant’s responses.
[13] EB 1, S13, p 420.
On 1 April 2022 the internal reviewer concluded the further supports sought by the Applicant were not reasonable or necessary.[14] The internal reviewer noted the Applicant’s statement of participant supports included funding for 14 hours per week for assistance with self-care activities and 11 hours per week for assistance with social community access, which could be used flexibly to best meet his needs. It was also noted the Applicant’s capacity building daily activities budget funded 30 hours of therapy, which could be used flexibly, including for the purpose of obtaining a functional capacity assessment. The internal reviewer noted “once this information is obtained, a change of circumstances review may be lodged at any time if it reflects a need for a higher level of support.” The internal reviewer also noted the Applicant had been funded for 50 hours of psychosocial recovery coaching and 20 hours of specialist support coordination supports which could be used to help the Applicant to link to providers and to best utilise his NDIS plan. The internal reviewer concluded there was insufficient information as to how the Applicant’s request to increase his NDIS plan funding would represent more value for money than by using the current budgets flexibly to achieve similar outcomes. The internal reviewer was also not satisfied the Applicant’s information demonstrated the further supports sought would be effective and beneficial.
[14] EB1, T2, p 19.
With respect to the plan management, the internal reviewer concluded that:
self-management would present an unreasonable risk to you as a participant. Section 44 (2)(a) states that “The statement of participant supports in a participant’s plan must not provide that the participant is to manage the funding for supports under his or her plan to a particular extent if the CEO is satisfied that management of the plan to that extent would present an unreasonable risk to the participant”. In considering what an unreasonable risk may be, Rule 3.8(a) of the NDIS (Plan Management) Rules 2013 states that in my decision I must have regard for "Whether material harm, including material financial harm, to the participant could result if the participant were to manage the funding for supports to the extent proposed, taking into account the nature of the supports identified in the plan.”
Based on the evidence available at this time and the risk assessment that the NDIS
has undertaken, I am satisfied that there exists an unreasonable risk associated with
self-management in regard to your plan. I have therefore confirmed the original decision.
There has been inappropriate use of NDIS funds in your previous plan and as such I have decided that your plan will remain plan-managed.
On 6 April 2022 the Applicant applied to the Administrative Appeals Tribunal (the Tribunal), pursuant to section 103 of the NDIS Act, for review of the internal reviewer’s decision.[15]
[15] EB1, T1, p 1.
The Respondent has also sought to rely on submissions provided by Business D to the Respondent, claiming to have had exchanges with the Applicant that led the business to decide in January 2022 to terminate services with the Applicant. The Respondent has sought to rely on excerpts of emails from Business D who claimed to have gone through the exercise of attempting to work with the Applicant but concluded that the Applicant was not a suitable person for one of their dogs. Business D reported to the Respondent that their interactions with the Applicant had been very difficult and provided notes of a phone call recording that the Applicant swore and hung up on Mr E.[16] The Applicant has disputed the reliability of this material. The Respondent however submitted that this is relevant to self-management, in that “it documents at least some accounts of poor language or poor choices, poor judgment regarding the dog, Dog C.”[17]
[16] EB1, S4, p 347.
[17] Transcript, p 168.
After the Applicant applied to the Tribunal for review, on 17 June 2022 the Respondent’s compliance program branch wrote to the Applicant about its duty to monitor spending behaviours and provided information about record keeping requirements and its compliance program. He was referred to tools and reference guides in relation to self-management. He was advised that the Respondent was reviewing claims for which he had been paid. He was asked to provide documentation in relation to 19 payments.[18]
[18] EB1, A7, pp 126 – 7.
The Respondent then wrote to the Applicant on 24 July 2023 to advise that the outcome was that it was “decided that no debt is owed as a result of this review.”[19] This is relevant to the issue of self-management and discussed in more detail below.
[19] EB 1, A7, p 129.
Changes to the statement of participant supports since the review application
At the request of the parties, on 17 February 2023, the Tribunal remitted the matter to the Respondent for reconsideration pursuant to subsection 42D(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). On 2 March 2023, the Respondent varied the statement of participant supports for the Applicant’s plan, consistent with the parties’ agreement and the varied plan was filed with the Tribunal.[20] On 21 August 2023, the Applicant notified the Tribunal and the Respondent that the varied plan would “expire” on 31 August 2023 and requested that the matter be remitted for reconsideration pursuant to section 42D of the AAT Act. The Tribunal was informed that the parties agreed that the Applicant’s statement of participant supports should be varied to provide funding for the supports in the statement of participant supports dated 2 March 2023, on a pro rata basis, for a further six months. On the same day, the Applicant advised the Respondent and the Tribunal that he did not agree to the proposed terms.
[20] EB 1, R8, p 363.
Consequently, on about 1 September 2023, the Applicant's plan was “automatically extended” by the Respondent until 30 August 2024, to ensure the Applicant’s funding for his supports would continue while the matter was before the Tribunal.
The Respondent has confirmed that the decision to extend the plan in September 2023 was not the result of a review by the CEO; rather the reassessment date of the plan was purportedly varied to allow the Applicant to access funding available in that plan until 30 August 2024 and to include additional funding. No new plan was created. The Respondent has submitted the plan dated 2 March 2023 therefore has not been replaced by another plan. The Respondent has submitted that the extension of the plan has “no legal effect or consequence as the Respondent had no power to make such a variation.”[21] The Respondent also referred to the view of the Tribunal (differently constituted) that “the effect of section 37 of the (NDIS) Act is that a plan does not 'expire' or come to an end once the review date is reached. Rather, a participant may have access to supports approved in a statement of participant supports after the review date has passed...”.[22]
[21] RSFIC, para 25.
[22] RSFIC para 26 citing Williamson and National Disability Insurance Agency [2019] AATA 2944 (“Williamson”) at [28].
Does the Tribunal have jurisdiction?
At the hearing the Applicant stated that he had sought review of the decision of 17 February 2022. That request was made on 21 February 2022, the same day that the Respondent undertook an unscheduled review and changed the plan duration from two years to one year. On 1 April 2022, the internal reviewer reviewed the decision of 21 February 2022, the most recently approved plan.
The Tribunal’s powers to review the decision in this case, being a decision to approve the statements of participant supports, is provided for by paragraph 25(1)(a) of the AAT Act. It provides that an enactment may provide that applications may be made to the Tribunal for review of a decision made in the exercise of powers conferred by that enactment. The NDIS Act is such an enactment, as it provides in section 103 that applications may be made to the Tribunal for review of a decision made by a reviewer under subsection 100(6) of the NDIS Act. The decisions that come within the description of a “reviewable decision” are those set out in section 99 of the NDIS Act and include review of a decision to approve a statement of participant supports. It is clear the review of a decision made by the CEO under subsection 33(2) of the NDIS Act to approve a statement of participant supports is provided for in section 99. Such a decision was made by the CEO on 21 February 2022. The internal reviewer confirmed the CEO’s decision on 1 April 2022, made pursuant to subsection 33(2) of the NDIS Act, to approve the statement of participant supports. The Applicant then, on 6 April 2022, made an application to the Tribunal for review under paragraph 100(6)(a) of the NDIS Act the internal review dated 1 April 2022 and provided a copy of that decision with his AAT review application.
I am satisfied the reviewer reviewed a reviewable decision, a decision to approve a statement of participant supports. I am satisfied the Tribunal has jurisdiction to review the decision made by the reviewer on 1 April 2022. That is the decision which was provided to the Tribunal when the Applicant made his application to the Tribunal for review.
The issue as to whether the Tribunal continues to have jurisdiction was raised by the Respondent given the Applicant’s plan was “extended”. The Respondent has stated it did not create a new plan and the plan dated 2 March 2023 has not been replaced. In effect the Respondent has submitted that it has merely continued to fund the Applicant’s supports, beyond the reassessment date set out in that plan.
The parties requested the Tribunal remit the matter for reconsideration under section 42D of the AAT Act, which it did, and on 2 March 2023 the Respondent varied the statement of participant supports in the Applicant’s plan. Section 42D of the AAT Act provides that if a reviewable decision is varied, or set aside and substituted, then the Applicant may choose to proceed with the review application, which is taken to be an application to review the new decision (the 2 March 2023 decision). If a reconsidered decision is not made in the manner described in subsection 42D(2), the decision is taken to be affirmed and the proceeding resumes as it was prior to the remittal. This provision provides the Respondent an opportunity to reconsider the decision based on updated information. If the decision is acceptable to the Applicant, it can resolve the review without the need for a hearing. In this case the Applicant chose to proceed with the review application and the Tribunal proceeded with the review. Following the 2 March 2023 decision, the review is taken to be an application for review of that decision, so long as it is validly made. There is nothing before me to indicate that decision was not validly made.
The Respondent has stated the Applicant’s plan was then “automatically extended”. It is not clear to me what power is exercised by the Respondent to automatically extend the Applicant’s plan. As far as I am aware there is no reference to such a power in the NDIS Act or the Rules. In any case, for the following reasons, I am not satisfied this had any effect on the 2 March 2023 decision, except that the Applicant’s supports continued to be funded.
In accordance with subsection 37(3) of the NDIS Act, a participant’s plan ceases to have effect only when it is replaced by another plan or the participant ceases to be a participant. Neither of those circumstances has occurred with respect to the Applicant’s plan. There is nothing before me to raise a concern that the Respondent’s decision to continue to fund the Applicant’s supports has caused the plan approved on 21 February 2022, varied by the 2 March 2023 decision, to cease. Nor is there any evidence to suggest that the Applicant has ceased to be a participant. Given the wording in subsection 37(3), I agree with the Tribunal in Williamson, that a plan does not cease or come to an end once the review date is reached.
I agree with the submission that the Tribunal has jurisdiction to review the statement of participant supports included in the plan approved on 21 February 2022, varied by the 2 March 2023 decision. I am not concerned that the Respondent’s decision to continue to fund the supports set out in the statement of participant supports impacts on the Tribunal’s jurisdiction. I am satisfied the Tribunal has jurisdiction to review a decision to approve the statement of participant supports in the Applicant’s plan.
Other procedural matters
This matter was constituted to a member based in the Adelaide registry but, before the matter could be heard, he ceased working at the Tribunal. While the Applicant resides in South Australia, for resource management reasons, the matter was constituted to me. I am based in the Sydney registry. At the case management directions hearings the Applicant made it clear that he was completely opposed to a hearing being conducted by video, as only an in-person hearing would meet his disability needs. He stated emphatically that if he did not have an in-person hearing he would complain to the Human Rights Commission on the ground of disability discrimination. He was also frustrated by the time his matter was taking to be heard and advised he would complain if there was any further delay in finalising his matter, for example, if he had to wait for an Adelaide based member to be available to hear the matter. The Applicant also expressed significant anxiety about participation in the hearing. I explained my statutory obligations under s2A of the AAT Act. I was able to reassure him that I would make reasonable adjustments to facilitate his meaningful engagement in the hearing process and he seemed to be reassured by this. Ultimately, I had concerns it may be detrimental to the Applicant to delay the matter any further by reconstituting the case to an Adelaide member, given his disability needs arising from his psychosocial impairments. I sought approval from the President of the Tribunal to travel to and remain in Adelaide for the duration of the hearing, listed on 6, 7 and 8 March 2024. This was granted. I also made directions, at the Applicant’s request, that the Respondent’s counsel, solicitor and the case manager be present in person during the hearing.
The Applicant also sent to the Tribunal a list of adjustments he wished to have made to facilitate his engagement during the hearing process, as follows:
In relation to my matter 2022/2840 including the hearing scheduled for 6, 7, 8 March. I am reminding you of a brief summary my disabilities and related needs.
I live with Complex PTSD, Psychosocial Disability, and Neurodiversity.
1.Assistance Dog is required to be with me at all times.
2.I request permission for my Disability Support Workers to be present and able to further support me.
3.I will have my advocate Ms… Campbell present
4.There may be times in which I am overwhelmed by the situation and therefore require a short break to regain myself.
5.I struggle to be able to follow conversation that is not very direct, this is both orally and written.
a.Written information is to be dot pointed where possible
b.Short sentences and paragraphs where appropriate
6.When I am told I am not correct but not given clear reason and evidence to support this it triggers my PTSD.
7.When being asked for a response it would be helpful if I have the opportunity to write down my response first and to then read or give to another person to read out.
The hearing was conducted in person in Adelaide on 6, 7 and 8 March 2024. To the best of my ability I took into account and accommodated the Applicant’s requests. The Applicant had with him his assistance dog, Dog B, his advocate, Ms Campbell, and a support worker, for the duration of the hearing. He was invited to request breaks as he required which were accommodated as requested. Material was read to him as he required. He did not adopt the approach described at point 7 but did not request the opportunity to do so, and appeared to be comfortable to answer questions directly.
At the commencement of the hearing the Applicant informed me that he believed there was “a conflict of interest in the room which is that who I believe to be the NDIA case manager, I actually do know from previous situations in my life. I’ve never set eyes on (the case manager) within the NDIA context before.”[23]
[23] Transcript, p 5.
I asked the Applicant if he knew the case manager, who was present in the hearing room, socially. He responded “Yes”. The Applicant asked the case manager if he recognised him. The case manager confirmed that he did recognise the Applicant. I adjourned to allow counsel for the Respondent to seek instructions on whether there was a possible conflict of interest. On reconvening, counsel for the Respondent informed me that the instructions were that the case manager “has an acquaintance with YVTM, but nothing that would rise to the level of conflict of interest. However, what the Respondent wishes to do is arrange for another case officer to take over to avoid any kind of difficulty arising from even the suggestion. The practical issue for us now is simply to locate another case worker and get them up to speed and get them over here, or alternatively, with the Tribunal’s permission, get them to attend silently via Teams with a view into the hearing room so that we can be instructed as required.”[24]
[24] Ibid, p 6.
I asked the Applicant’s views on this approach. The Applicant expressed the following concern: “this is once again the Respondent treating me in inappropriate ways and had the Respondent and (the case manager) had contact with me prior to this hearing today this would’ve been known. The fact that (the case manager) has even been on the previous directions hearing makes me concerned and, I, once again see that this is the Respondent purposefully treating me in a way that’s going to affect my disabilities further. I understand that the Respondent has not been prepared to the level that I expected them to be when this matter has been going on for 748 days now, out of my 1,263 days as a participant. So prior to this matter being present, I was only a participant for 515 days previously.”[25] The Applicant however did not advance any request for an adjournment in light of the Respondent needing to engage another case manager.
[25] Ibid.
I decided it was important to progress the hearing because a further adjournment may cause the Applicant more stress and anxiety. I explained to the parties that I wanted the Respondent to find an instructing case manager who could participate as soon as possible, even if that needed to be by phone or video. I explained to the Applicant that the case manager does not give evidence; rather they attend the hearing so they can give counsel instructions. I explained that the case manager does not give those instructions in front of the Applicant or the Tribunal; that those discussions take place outside the hearing. I explained that it was my view that it was important to progress the hearing so that the Applicant could give his oral evidence. The Applicant did not express any objection to this approach.
The Respondent explained that there was a case manager in Western Australia who was familiar with the Applicant’s case. The hearing was briefly adjourned while arrangements were made for that case manager to join the hearing by MS Teams.
Revocation of summons to produce documents
In its written submissions the Respondent sought to rely on excerpts from emails, provided by Business D, purportedly exchanged between the Applicant and Business D. I raised with the Respondent at the hearing the issue of the weight I could give that evidence given I had not seen the original emails. For reasons discussed in more detail below, I formed the view this material may be relevant to the Applicant’s request to self-manage his plan. At the end of the hearing I indicated to the Respondent that the Tribunal was to be informed by 13 March 2024 if it would be requesting that the Tribunal summons Business D to produce the emails received from and sent to the Applicant.
Accordingly, after the hearing, on 13 March 2024, the Respondent requested that the Tribunal summons Mr E of Business D. The Tribunal summoned Business D on 14 March 2024.
Later, on 14 March 2024, the Applicant emailed the Tribunal as follows:
I am concerned with the conduct of the Respondent as it continues to appear to do unlawful acts.
As you are aware, this is not the first time I have raised concerns over the respondent and their actions throughout this matter, lasting some 25 months.
Failing to comply with direction 1 set by Senior Member Connolly 8 March 2024, the following email was sent by the respondent yesterday after close of business.[26]
The sender, Lily Butterfield has attached 2 documents which appear to be incorrectly and fraudulently completed.
The summons recipient’s details are not shown to be correct, namely the address, lack of any ABN, not addressing to ‘The Proper Officer’ per requirements in the AAT Act.
I note the person completing Summons Request form appears to be Sarah Lim. Ms Lim’s contact details are stated on the form. However, the signature appears to be that of Thomas Galvin.
This document has been sent by email from Lily Butterfield who appears not to be the author of the form nor the person who signed the form.
Further concerns are raised over the ability and actions of the respondents and their legal counsel to conduct themselves professionally and to treat this matter appropriately. Also the treatment of myself as the applicant and the person living with disability.
I request that registry take actions preventing the respondent from continuing to act unlawfully, unprofessionally and in a menacing way.
It appears to me that the respondent continues to act with intent to delay the outcome of this review. It also appears the respondent’s actions providing falsified documents and falsified evidence may be vexatious.
The Respondent has continued to change their reason/s for the original decision of which is the crux of this AAT matter. The Respondent is preventing me accessing appropriate supports with my NDIS Plan and self-managing my NDIS plan, however they continue to prove themselves to be incompetent and/or have little to no respect for the law or the rights of myself and their responsibilities.
[26] Direction 1 stated “On or before close of business, 13 March 2024, the Respondent shall confirm with the Tribunal and the Applicant as to whether it intends to make any request for Summons in relation to Business D.”
The Tribunal’s records confirm that the Respondent sent to the Tribunal, copying the Applicant, the request for Summons at 4.53pm (ACDT), before close of business, in compliance with Direction 1.
The law relating to the Tribunal’s power to summon a person to produce documents relevantly states:
40A Power to summon person to give evidence or produce documents
(1) For the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons:
…
(b) produce any document or other thing specified in the summons.
Regulation 11 of the Administrative Appeals Tribunal Regulation 2015 (the AAT Regulation) states that a summons referred to in section 40A of the NDIS Act must be in the approved form. Having regard to the form filed with the Tribunal I am satisfied the Respondent used the approved form. There is no requirement in the AAT Act or the AAT Regulation that the Respondent provide the particulars the Applicant set out above.
I am satisfied that at the time the request to summons was made, Sarah Lim, Thomas Galvin and Lily Butterfield all worked for MinterEllison, the law firm acting for the Respondent. While the Tribunal acknowledges that three different lawyers acting for the Respondent were involved in the summons request, I am of the view this does not affect the validity of the summons request. I am not satisfied the Respondent has incorrectly and fraudulently completed the documents that were forwarded to the Tribunal.
In any case, for reasons given below, there were no documents returned on the day specified in the summons.
With respect to the Applicant’s request that registry take actions preventing the Respondent “from continuing to act unlawfully, unprofessionally and in a menacing way. It appears to me that the respondent continues to act with intent to delay the outcome of this review. It also appears the respondent’s actions providing falsified documents and falsified evidence may be vexatious”, I am not satisfied there is evidence in relation to this issue that the Respondent has acted unlawfully, unprofessionally and menacingly. Nor am I satisfied that the summons request was an attempt to delay the review. It followed from a concern I raised at the hearing about the reliability of information that is relevant to an issue in dispute, the management of the Applicant’s plan.
The Applicant contacted the Tribunal on 15 March 2024 by telephone regarding the following:
a.He enquired whether his email sent the day before had been received by the Tribunal since he had not heard any feedback. Receipt was confirmed.
b.He advised that he conducted research on the details cited in the Respondent’s summons request. He advised the address of Business D is listed as permanently closed on Google.
c.With respect to the Tribunal’s Directions dated 8 March 2024 requiring the Applicant to provide his emails with Business D to the Tribunal and Respondent, he advised that he had not been able to reach his disability advocate and would need an extension of time to comply. He thought he would need a week to sort out the information and provide it to the Tribunal.
Having considered the Applicant’s request, I granted the extension of time.
On 15 March 2024 the Tribunal also wrote to the parties forwarding the information provided by the Applicant about Business D, and advising, in the event the Respondent was unable to effect service of the summons, it was for the Respondent to advise the Tribunal.
On 22 March 2024 the Respondent wrote to the Tribunal to advise that the process server attempted to serve the summons on 15 March 2024, but service was unable to be effected as neither Mr E nor Business D were at the premises and no forwarding or contact details were available. Given those circumstances the Respondent requested that the summons be set aside or revoked. The Respondent provided the process server’s affidavit of attempted service, advising he was informed by the current occupants that Business D had moved and left no forwarding or contact details. I agreed to revoke the summons.
The Applicant provided copies of email exchanges between himself and Business D on 25 March 2024, in compliance with my direction.
On 15 April 2024 the Applicant’s representative emailed the Tribunal, regarding several issues including that he “questions the revoking of the summons in relation to the Business D provider, the incorrect serving of the summons in that the entity is the E Family Trust…, the lack of any specific identifying information on whom the summons was issued, and that the respondents have not provided any information on alternative ways in which they attempted to contact the appropriate recipients of the summons.”
Having considered the process server’s affidavit I formed the view the appropriate course of action was to revoke the summons. It appears the Respondent has decided to not take any further steps to locate Mr E. As discussed at the hearing with both parties, the weight I give the evidence on which the Respondent seeks to rely may be affected by the fact that the information includes selected excerpts from purported emails. I also note that, since the hearing, the Applicant has provided copies of email exchanges between himself and Business D. Overall I am satisfied I have sufficient information in relation to this issue to make the correct findings.
The Applicant’s representative advised that the Applicant also questioned why an email has not been responded to by the Tribunal and that he has concerns over the treatment he is receiving. He has contrasted this to, in his view, “the preferential treatment the Respondent appears to be receiving despite their lack of continuity of story and lack of consistent adherence with directions.”
I do not agree that the Respondent has received preferential treatment in this case. I have made all reasonable adjustments in response to the Applicant’s request that I accommodate his disability needs. As set out above, I made it very clear to the Respondent that I expected their counsel, who was based in Sydney, and legal representatives to attend the hearing in Adelaide in person. I have given the Applicant every extension of time he has sought. I have requested that the Respondent provide further evidence, at short notice, to ensure that I have sufficient information to make the correct decision. In the main, since the matter has been constituted to me, the Respondent has complied with directions. There is nothing before me to indicate the Respondent has received preferential treatment from the Tribunal. In my view I have given the Applicant a reasonable opportunity to give his evidence and present his arguments as to why he thinks the Respondent’s decision under review is wrong.
The Tribunal has a statutory requirement under section 2A of the AAT Act to be accessible, fair, just, economical, informal and quick. I am satisfied the Tribunal has taken reasonable steps to accommodate the Applicant’s disability needs and that I have complied with those requirements. Overall I am satisfied the parties have been afforded procedural fairness in the conduct of this review.
The Applicant’s Freedom of Information (FOI) application and information about compliance
At the hearing I raised with the Respondent the filed information indicating a compliance review had been undertaken and the outcome that “no debt is owed”[27]. I asked for clarification as to whether the debt was no longer owed because it had been waived or if the Agency had in fact decided that there was never any debt. This information is relevant to the Respondent’s decision to change the Applicant’s plan management from self-management. I directed that the Respondent inform the Tribunal and the Applicant as to why the debt was no longer owed by the Applicant.
[27] EB 1, S12, p 412.
On 15 March 2024 the Respondent wrote to the Tribunal and advised:
The payment review identified expenditure that was not in accordance with the participant’s plan giving rise to a debt. As a result, the payment review identified the applicant was engaging in decision making that represented a risk to themselves and the Scheme. The decision not to proceed with the debt was influenced by the respondent’s satisfaction that appropriate mitigating measures were in place to manage ongoing risk through the provision of education and advice, as well as revocation of the applicant’s ability to manage their own plan and funds.
Later on 15 March 2024 the Applicant wrote to the Tribunal as follows:
In-line with my previous Freedom of Information request which the respondent has still not satisfied I request entire and true copies of all information relating to the investigation and decision of the respondent in original format including the screen grabs from the NDIA/NDIS work platform / database / program.
The explanation provided below to myself and the tribunal does not match the letter held in the Book Of Documents pages 412, 413, 414.
On page 412 it clearly states under the bold heading “What this means for you”
“Based on the information you have provided and the information contained within our records, we have decided that no debt is owed as a result of this review.”
It states further down the same page “Thank you for your cooperation and for helping us continue to deliver a sustainable NDIS for participants and their families.”
Where in the letter from pages 412-414 does it state any “provision of education and advice” being either offered, provided or required toward myself by the respondent or any other party?
I am utterly disgusted in the respondent and the continued false information served in a clearly fraudulent manner.
I, nor any other person, should be a victim of such disgraceful actions, manipulation and abuse, especially from those with legal training.
This raises further questions for me of why I and witnesses called by the respondent were asked to take an oath within the hearing however the respondent and their counsel were not asked to do so.
At the hearing I had indicated to the Applicant that I do not have jurisdiction with respect to his FOI application to the Respondent as it is not part of this review. On 18 March 2024 the Tribunal wrote to him and advised that the FOI matter was one that he needed to pursue with the Respondent.
The Applicant’s representative emailed the Tribunal again on 15 April 2024 reiterating the Applicant’s question regarding the Respondent’s delay in the provision of FOI information. As the Applicant had been told that the FOI matter is not under review, and the Tribunal wrote to the Applicant advising this was a matter he needed to pursue with the Respondent, the Tribunal formed the view there is no further need to remind the Applicant that the FOI matter is not before the Tribunal and is one that he needs to pursue with the Respondent.
I will however further address the evidence regarding compliance in more detail below, as it relates to the Applicant’s request to self-manage his plan.
I note that on 18 March 2024 the Applicant wrote to the Tribunal as follows:
The Respondent / Agency have failed to comply with the direction set by Senior Member Connolly.
The Respondent has again provided false information and contradictory information to that previously submitted and discussed in the full hearing.
I request the AAT take action in breaching the Respondent for this.
I do not accept that the Respondent continue to get away with acting illegally.
If the AAT will not breach the Respondent I require a reason to be provided in writing. Also to be informed what actions I can take to lodge a formal and expedited complaint about the AAT.
I do not agree that the Respondent failed to comply with the Tribunal’s direction. It provided its explanation for why it decided not to proceed with the debt. The weight I give the response is discussed in more detail below. There is no lawful action for the Tribunal to take to “breach” the Respondent. I formed the view I did not need to provide the Applicant an explanation in writing for not “breaching” the Respondent, as I intended to address this issue in this, my reasons for decision. In short, the Tribunal does not have a power to “breach” the Respondent.
The Applicant also questioned the timing of the receipt of the transcript by the Respondent, claiming the conveyance to him appears to have allowed the Respondent more than 14 days to prepare its final submission. The emails from the transcribing service and the Respondent confirm that the Respondent forwarded to the Applicant the transcripts the day after those transcripts were received. In my view this is reasonable. However in order to accommodate the Applicant’s concerns that he did not have sufficient time to prepare his closing submissions in compliance with the Direction, I granted him a 28 day extension.
ISSUES TO BE DETERMINED BY THE TRIBUNAL
The Respondent set out in its statement of facts, issues and contentions (the RSFIC) the issues in dispute, being whether supports being sought by the Applicant are reasonable and necessary, and whether the Applicant should manage the funding for supports under the plan (commonly referred to as self-management).
According to the RSFIC the statement of participant supports approved on 21 February 2022 included the following supports for a one year period:
(a)core supports in the amount of $84,995.04 (comprising daily activities - $48,745.84 and social, community and civic participation - $36,249.20); and
(b)capacity building supports in the amount of $15,397.25 (comprising improved life choices - $1,485.75, improved daily living - $5,819.70 and support coordination - $8,091.80).
Pursuant to the Tribunal section 42D remittal, the Applicant’s statement of participant supports was varied on 2 March 2023. Effectively there was an increase in core support funding (from $84,995.04 per year to $46,340.06 per 6 months); and a small increase in support coordination funding (from $4,281 per year to $2,619 per 6 months).
The Respondent advised in the RSFIC that it has since agreed to provide funding for the following additional supports:
(a)assistance with self-care activities as follows:
(i)for the initial 6 months of the plan, 20 hours per week of 1:1 support comprising:
(A) 15 hours per week of 1:1 support at the weekday daytime rate;
(B) 2 hours per week of 1:1 support at the Saturday daytime rate;
(C) 3 hours per week of 1:1 support at the Sunday daytime rate;
(ii)for the remaining 6 months of the plan, 14 hours per week of 1:1 support comprising:
(A) 10 hours per week of 1:1 support at the weekday daytime rate;
(B) 2 hours per week of 1:1 support at the Saturday daytime rate;
(C) 2 hours per week of 1:1 support at the Sunday daytime rate;
(b)28 hours per annum of psychology;
(c)40 hours per annum of occupational therapy, replacing the 30 hours per annum of “other therapy” in the Applicant's current statement of participant supports; and
(d)funding for a continence assessment by a continence nurse or other suitably qualified professional (5 hours).[28]
[28] To avoid doubt, these additional supports were not included in the 2 March 2023 decision.
The Applicant has not agreed that these additional supports will meet his disability needs. The further supports sought by the Applicant were discussed at the hearing and are set out in the RSFIC, with some minor changes, as follows:
(a)core supports (over a 24-month period):
(i)six hours per day (comprising three hours at the daytime rate and three hours at the evening rate) of support worker assistance to access the community and assist with personal care;
(ii)44 x 25ml bottles of cannabidiol (CBD oil);
(iii)funding for the ongoing care and maintenance of the Applicant's dog, Dog A;[29]
[29] While the RSFIC originally included Dog B, the Applicant confirmed at the hearing that he was only seeking funding for Dog A.
(iv)funding for ready-made meals;
(v)funding for continence aids;
(vi)funding for low cost assistive technology (AT) and consumables;
(vii)21 days of short-term accommodation (STA) and assistance (including respite);
(viii)funding for home modifications;
(b)capacity building supports (over a 24-month period):
(i)165 hours of psychology (plus travel);
(ii)40 hours of exercise physiology;
(iii)160 hours of individual art therapy;
(iv)24 hours of naturopathy;
(v)funding for level 3 specialist support coordination;
(vi)a recovery coach;[30]
(c)other supports (over a 24-month period):
(i)550 hours of legal support;
(ii)3,300 hours of advocacy or social work support; and
(iii)access to the complex support needs pathway (CNSP).
[30] The Applicant confirmed at the hearing he no longer seeks funding for exploring housing options.
The second issue under consideration is whether the Applicant's request to manage the funding in his NDIS plan, if granted, would present an “unreasonable risk” as referred to in subparagraph 44(1)(b)(i) of the NDIS Act.
LEGISLATIVE FRAMEWORK
A participant’s NDIS plan must include a statement of participant supports, approved in accordance with the NDIS Act, and any rules made under the NDIS Act such as the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Supports Rules) and the National Disability Insurance Scheme (Plan Management) Rules 2013 (the Plan Management Rules).[31]
[31] National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) ss 33(2) and (5).
The Objects of the NDIS Act include enabling participants to exercise choice and control in pursuit of their goals and the planning and delivery of their supports: paragraph 3(1)(e).
Chapter Three of the NDIS Act deals with individual plans under which reasonable and necessary supports will be funded for participants in the scheme. Subsection 31(1) sets out the principles relating to the preparation, review and replacement of a participant’s plan. These principles are generally reflective of the General Principles set out in section 4 and expressly include, amongst other things, that these processes should:
(a)be individualised;
(b)be directed by the participant; and
…
(j)facilitate tailored and flexible responses to the individual goals and needs of the participant.
In deciding whether to approve a statement of participant supports I must have regard to several factors, including the Applicant’s statement of goals and any relevant assessments conducted in relation to the Applicant.[32] I must be satisfied the supports are reasonable and necessary.[33] I must also have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so, unless an exception applies.[34]
[32] NDIS Act, ss 33(5)(a) and (b).
[33] Ibid, s 33(5)(c).
[34] Ibid, s 33(5)(e)
Subsection 34(1) of the NDIS Act states, with respect to reasonable and necessary supports, as follows:
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Subsection 34(2) provides that the NDIS rules may prescribe methods or criteria to be applied, or matters to which the CEO must have regard, in deciding whether they are satisfied criteria under subsection 34(1) are met in respect of a requested support.
The Supports Rules, made pursuant to subsection 35(1) of the NDIS Act, provide further guidance with respect to the assessment of reasonable and necessary supports that will be funded. Paragraph 33(5)(d) requires that the CEO apply any rules made for the purposes of section 35. Pursuant to section 209 of the NDIS Act, the rules are a legislative instrument and are therefore binding on the Tribunal.
The Tribunal notes the observations of Mortimer J in McGarrigle v National Disability Insurance Agency [35] at [43] in part as follows:
The [Supports Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement…some policy decision-making about the nature and extent of supports to be provided or funded...
[35] McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle).
The relevant Supports Rules in this case are as follows:
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).
3.2In 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.
5.1A 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.
5.2The 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.
7.7 The NDIS will not be responsible for:
(a)supports related to mental health that are clinical in nature, including acute, ambulatory and continuing care, rehabilitation/recovery; or
(b)early intervention supports related to mental health that are clinical in nature, including supports that are clinical in nature and that are for child and adolescent developmental needs; or
(c)any residential care where the primary purpose is for inpatient treatment or clinical rehabilitation, or where the services model primarily employs clinical staff; or
(d)supports relating to a co-morbidity with a psychiatric condition where the co-morbidity is clearly the responsibility of another service system (eg treatment for a drug or alcohol issue).
In National Disability Insurance Agency v WRMF[36] the Full Court of the Federal Court stated that, “the supports to be provided to a person who qualifies as a participant are intended to accommodate an individual’s particular impairments and to assist that particular individual to be a participating member of the Australian community, and to do so on the basis of the values set out in the objects and guiding principle clauses of the NDIS Act, as well as the values set out in section 17A of the NDIS Act.”[37]
[36] [2020] FCAFC 79.
[37] Ibid at [141].
Section 43 of the NDIS Act relates to plan management and provides as follows:
Choice for the participant in relation to plan management
(1)A participant for whom a plan is in effect or is being prepared may make a request (a plan management request):
(a)that he or she manage the funding for supports under the plan wholly or to the extent specified in the request; or
(b)that the funding for supports under the plan be managed wholly, or to the extent specified in the request, by a registered plan management provider he or she nominates; or
(c)that the funding for supports under the plan be managed wholly, or to the extent specified in the request, by a person specified by the Agency.
(2) If a participant makes a plan management request, the statement of participant supports in the plan must give effect to the request, except to the extent set out in subsections (3) to (6).
(3)If:
(a)a participant makes a plan management request covered by paragraph(1)(a); and
(b) subsection 44(1) applies in relation to the participant;
the statement of participant supports in the plan must provide for the funding for supports under the plan:
(c)if paragraph 44(1)(a) applies—to be wholly managed by the Agency; and
(d) if paragraph 44(1)(b) applies—to be managed by the Agency to the extent covered by that paragraph.
Section 44 of the NDIS Act provides as follows:
Circumstances in which persons must not manage funding
Participant
(1)For the purposes of paragraph 43(3)(b), this subsection applies in relation to a participant if:
(a) the participant is an insolvent under administration; or
(b) the CEO is satisfied that the participant’s management of the funding for supports under the plan to a particular extent would:
(i)present an unreasonable risk to the participant; or
(ii)permit the participant to manage matters that are prescribed by the National Disability Insurance Scheme rules as being matters that must not be managed by a participant.
…
(3) The National Disability Insurance Scheme rules may prescribe criteria the CEO is to apply and matters to which the CEO is to have regard in considering whether any of the following would present an unreasonable risk to the participant:
(a) a participant managing the funding for supports under the plan;
(aa)a registered plan management provider managing the funding for supports under the plan;
(b)a plan nominee managing the funding for supports under the plan.
The relevant Plan Management Rules are set out and discussed in more detail below.
The NDIS Operational Guidelines also assist in making decisions in accordance with the NDIS Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[38] The relevant Operational Guidelines are Understanding supports - Pharmaceuticals (the Pharmaceuticals Guideline) and Assistance animals include dog guides (the Assistance Animals Guideline).
[38] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.
CONSIDERATION OF THE EVIDENCE
I have considered all the evidence provided by the parties including the following:
(a)The Respondent’s tender bundle which includes:
(i)the documents provided to the Tribunal by the Respondent on 28 April 2022, 16 August 2022, and 8 December 2023 under section 37 of the AAT Act;
(ii)tables of requested supports and information about providers, filed by the Applicant;
(iii)Functional capacity assessment by Jo Marsh, occupational therapist dated 4 January 2023, filed by the Applicant;
(iv)Email from the Respondent to the Applicant with attached compliance review outcome, dated 24 July 2023, filed by the Applicant;
(v)Report of SWA (support worker) with attached quote for services dated 7 August 2023, filed by the Applicant;
(vi)Report of Matthew Cox (clinical psychologist) dated 15 August 2023, filed by the Applicant;
(vii)Report of SWB (support worker) dated 21 August 2023, filed by the Applicant;
(viii)Report of SWC (support worker) undated, filed by the Applicant;
(ix)Letter and assessment of Dog B by Dr Eleanor Parker (veterinarian) dated 7 February 2023, filed by the Applicant;
(x)Report of SWD (support worker) dated 16 August 2023, filed by the Applicant;
(xi)Report of SWE (support worker) undated, filed by the Applicant;
(xii)Extract of a documents purportedly issued by the Therapeutic Goods Administration, filed by the Applicant; and
(xiii)The Applicant’s response to the Respondent’s third statement of issues.
(b)The Applicant’s materials filed with the Tribunal on 23 February 2024 including:
(i)Progress Report of Greg Fell (clinical psychologist) dated 21 October 2015;
(ii)Report of Dr Cheryl Lee (senior psychiatry registrar) dated 15 January 2016;
(iii)Report of Dr Bahman Zarrabi (psychiatric registrar) dated 18 October 2016;
(iv)Report of Mark Cox (clinical psychologist) dated 7 November 2016;
(v)Report of Dr Carolyn Roesler (general practitioner) dated 3 July 2020;
(vi)Health of the Nation Outcome Score (HoNOS) and Life Skills Profile 16 (LSP 16) completed by Dr Carolyn Roesler in July 2020;
(vii)Lived experiences statement completed by the Applicant dated 6 July 2020;
(viii)Letter of Ruth Coulter (social worker) dated 7 July 2020;
(ix)Report of Dr Carolyn Roesler dated 15 September 2023;
(x)Sections 7 to 11, Disability Discrimination Act 1992 (Cth);
(xi)Assistance Dogs and Public Access Rights, Government of South Australia, Dog and Cat Management Board, August 2021 ;
(xii)Webpage extract from “Assistance Dogs, Dog and Cat Management Board”, accessed 23 February 2024;
(xiii)Email from SWG (support worker) dated 21 February 2024;
(xiv)The Applicant’s email correspondence with the Office of the Australian Information Commissioner;
(xv)Extracts from FOI 21/22-0834;
(xvi)Email correspondence between the Applicant with CSP, a care service provider, regarding access to the Applicant’s home;
(c)a statement from SCA, support coordinator, filed by the Applicant on 28 February 2024;
(d)two research papers prepared by the Respondent, filed by the Respondent shortly before the hearing, relating to the use of support animals for cases of autism:
(i)“Benefits of assistance dogs or pets for people on the autism spectrum: A systematic review and meta-analysis”
(ii)Lived experiences of assistance dogs for people with autism and their families: A systematic review and meta-aggregation of qualitative studies”;
(e)documents filed by the Applicant during the hearing on 7 March 2024 regarding his communications with SCB (NDIS Support Coordinator), and regarding Business D;
(f)a statement filed by the Respondent on 15 March 2024 regarding the internally documented basis of its decision not to pursue a debt against the Applicant;
(g)documents filed by the Applicant on 22 and 25 March 2024 relating to the Applicant’s dealings with “Business D”;
(h)the oral evidence given by the Applicant, Dr Roesler, the Applicant’s GP and Mr Matthew Cox, the Applicant’s Clinical Psychologist at the hearing on 6, 7, and 8 March 2024.
I have also taken into account the RSFIC and the parties’ closing submissions.
I have first considered whether the further supports sought by the Applicant, for which funding was not included in the decision under review, should be included in the Applicant’s approved statement of participant supports on the basis that they are reasonable and necessary in accordance with section 34 of the NDIS Act.
In doing so I have taken into account the Applicant’s goals; to get help to be treated as a human and be listened to, to set up his house to be able to live independently with his assistance dog, to get assistance with his autism and other disabilities, to increase his mental, physical and emotional wellbeing, to increase his ability to be part of and interact with the wider community, including by building a social network, and to get assistance to earn money.
I have also taken into account the evidence regarding the Applicant’s impairments which impact his social and economic participation. In his statement of lived experience the Applicant stated he lived by himself with his dog, Dog B. He gets no support from his family, and he has been “struggling significantly with self-care and completing daily tasks, especially showering, grocery shopping, eating and cleaning and my mental health makes it extremely difficult for me to socially interact with others.”[39] I note communicating and dealing with Centrelink also exacerbated his mental health.
[39] EB 2, Tab 7.
Over the years the Applicant has been assessed as having “prolonged and consistent depressed mood, anhedonia and loss of motivation, psychomotor agitation, impaired sleep, impaired appetite, impaired concentration, and decreased energy levels.” He has presented with “a personality disorder with aspects of obsessive compulsive personality disorder and narcissistic personality disorder…a consistent pattern of cognitive rigidity, particularly in relation to procedural rules and personal rights, which make it difficult for YVTM to appropriately understand the perspectives of others or adapt to the particular needs of a situation”.[40]
[40] EB 2, Tab 1.
Dr Cheryl Lee, Senior Psychiatry Registrar, in her report dated 15 January 2016, diagnosed “narcissistic personality disorder and obsessive compulsive disorder” and posited “generalised anxiety disorder and panic disorder”. Dr Lee advised that “ongoing psychology input is important and would be the mainstay of treatment for personality issues and improving coping mechanisms”.[41]
[41] EB 2, Tab 2.
I note the Applicant’s and Dr Roesler’s oral evidence that the Applicant has since been assessed by psychiatrists who dispute the narcissistic personality disorder diagnosis.[42]
[42] Transcript, p 119.
Dr Bahman Zarrabi, Psychiatric Registrar, in 2016 stated that the Applicant “has had chronic issues with anxiety and affective stability for many years and has tried myriad of different medication and has seen a few psychologists/psychiatrists without significant benefit”, and that “he is very sensitive to rejection and perceived rejection” and “is prone to decompensate, regress and experience panic attack”.[43]
[43] EB 2, Tab 3.
Mark Cox, Clinical Psychologist, in 2016, stated the Applicant “has a relatively complex presentation likely consisting of panic disorder… borderline traits” and he “scored in the ‘extremely severe range for anxiety and stress’”.[44]
[44] EB 2, Tab 4.
Dr Roesler reported in July 2020 that the Applicant’s mental health issues are a significant challenge and negatively impact on his functional capacity and independence, and that he has had several reviews and psychologists who all agree his symptoms are severe and that he needs a complex and multifaceted approach. She reported that he has tried multiple antidepressants and antipsychotics over the years with no or minimal effect and at times worsened his symptoms. She described the Applicant as being overwhelmed and traumatized by every aspect of his life and that he struggles with autonomy, decision making and working with people because of fear and lack of trust.[45]
[45] EB 2, Tab 5.
In July 2020 Ruth Coulter, Social Worker, reported that the Applicant’s mental health and functioning fluctuate. She stated that when he is well, he is able to work, connect socially, attend counselling appointments and plan for his future, but he had not been able to maintain this with any consistency over time, and his daily functioning could be severely impacted.[46]
[46] EB 2, Tab 8.
In July 2020 Dr Roesler completed a Health of the Nation Outcome Score (HONOS) and LSP 16[47] and reported that the Applicant “has substantially reduced function on a day to day basis resulting in him not having capacity to live independently without a high level of support and with great risk of further decline and adverse outcome if this cannot be provided”. She stated he had had several reviews from psychiatrists and psychologists who all agree his symptoms are severe and that he needs a complex and multifaceted approach. In her view, the 10 visits provided by a mental health care plan would not be sufficient.[48]
[47] Life Skills Profile LSP-16 – An assessment of general function over past 3 months.
[48] EB 2, Tab 6.
More recently Dr Roesler reported the Applicant has “well documented severe chronic mental illness and complex personal and social needs” with mental health diagnoses of severe generalized anxiety, severe panic disorder, PTSD with exacerbation in 2018 after assaults and cluster B personality traits. Dr Roesler is of the view the impact of his psychosocial disability is extreme and he finds it difficult to shop and deal with customer service staff, is overwhelmed by change to routine, struggles with diet and nutrition and is not able to exercise. He struggles to communicate and can be seen to appear abusive, as a result of fear. He can display frantic behaviour, constantly seeking attention and validation to soothe insecurities. In her view he requires intense multifaceted therapies, along with complementary therapies to have “the best chance of providing long lasting benefits and enabling a scaling back of therapy hours”.[49]
[49] EB 2, Tab 9.
Robyn Freeman, Clinical Psychologist, in February 2021, following an assessment for autism spectrum disorder, reported “longstanding difficulties with social communication, social interaction and emotional skills and displays, historically and currently, the restricted and repetitive behaviours consistent with autism spectrum disorder”. Ms Freeman reported the Applicant has social communication and interaction deficits. She noted he reported that his patterns of behaviour have caused impairment in a range of important social and workplace areas throughout his life which continue to cause him considerable stress and impact aspects of his mood and functioning, that his social communication skills are below those expected given his general developmental level, and reflect specifically disordered social skills rather than general delay”.[50] She noted the Applicant had experienced significant difficulties consistent with an ASD diagnosis and that he is likely to benefit from ongoing work with health professionals who have knowledge of autism and mental health.
[50] EB 1, T3, p 195.
Ms Freeman reported that it was apparent that the Applicant’s “ability to read, follow and adjust his behaviour to fit contextual and social cues and social expectations is far less than expected” and that he “exhibits the underlying persistent impairment in social skills that is of characteristic of autism spectrum disorder.”[51]
[51] Ibid, pp 199 – 200.
Jo Marsh, Occupational Therapist, reported the Applicant has severe difficulty in starting and maintaining a conversation and severe difficulty in remembering to do important things, extreme difficulty or is unable to take care of household responsibilities and extreme problems with participating in community activities. She recommended intensive therapies and supports with graded decrease prior to a plan review in 2 years.[52]
[52] EB 1, A6, p 106.
In his submissions the Applicant has stated that Greg Fell, Clinical Psychologist undertook an assessment in 2010 for potential dyslexia.[53] Greg Fell reported “the reading disorder identified in that report is a long-term condition and not expected to improve. I note in my recent interactions with YVTM that he still experiences difficulty with reading and associated anxiety”.
[53] EB 1, A8, p 154.
I observed the Applicant appeared to be able to effectively read a range of material during the hearing. He had also prepared and filed extensive written material, and had written to the Tribunal comprehensive emails several times. When I raised this with him, he told me that he has been diagnosed with Dyslexia 315.00 and stated “I can’t read paragraphs of text and then tell you what the meaning of it was. I can’t paraphrase or read a novel and tell you what that said. Whereas, if it is a short sentence, if it is dot points, like what I’ve requested in my email to the Tribunal and the Respondent, then I can process that small amount of information, and I can then process that.”[54] I have taken this into account and accept the Applicant’s capacity to comprehend long text is limited.
Support worker assistance
[54] Transcript, p 90.
The Applicant is currently funded to receive 25 hours per week of support worker assistance (comprising 14 hours per week of assistance with self-care activities and 11 hours per week of social, community and civic participation support).
The Applicant has submitted that 42 hours of support worker assistance each week, six hours per day, is reasonable and necessary. He wants to be funded for three hours during the day and three hours each evening. The Applicant is requesting funding for support worker assistance to access the community, and be assisted with personal care, activities of daily living and support to implement independence skills. He has submitted that his impairments have been persistent across his lifespan and in social contexts, and impact on his ability to develop a range of social and ongoing relationships. Also his impairments are not weekday specific.[55] He confirmed at the hearing that he continues to seek this support.[56]
[55] EB 1, A8, p 158.
[56] Transcript, p 99.
The Applicant submitted that, given the complexity of his impairments and the significant impact on his social, communication and emotional needs and concentration, he needs support to remember to do important things, analyze and find solutions to problems, learn new tasks, and take care of household responsibilities in a timely way.
The Applicant submitted he struggles with dealing with people he does not know, maintaining friendships, getting along with people close to him and making new friends, joining in community activities, living with dignity in the face of community attitudes, the emotional effects of his disability, the impact on others and the perceptions of others about his impairments.
The Applicant submitted that paid workers engaged through Core Support funding assist him by providing direct support, prompts and reminders to better manage activities of daily living and engage in social, civic and community participation. He will benefit from direct, relevant and focused supports to assist in building a social, civic and community presence, in relation to interpersonal skills, relationship building, personal interests and relaxation pursuits.
Ms Marsh undertook a functional capacity care needs assessment at the Applicant’s request. At the time she undertook her assessment the Applicant lived in his motor home on a bush block (without services) on the outskirts of a South Australian town.[57] He had moved there to improve access to support services.
[57] EB 1, A6, p 111.
Relying on WHODAS[58], Ms Marsh noted the Applicant withdraws from social contact where possible and does not maintain relationships with family or friends. He has one friend and while interested in increasing community contact and developing friendships, he has fear and anxiety associated with this. She formed the view his social interactions are non-functional.[59]
[58] World Health Organisation Disability Assessment Schedule (WHODAS) is a generic assessment instrument for health and disability.
[59] EB 1, A6, pp 109, 111.
With respect to learning Ms Marsh found the Applicant has extreme difficulty concentrating for 10 minutes, severe difficulty remembering to do important things and moderate difficulty learning a new task. However she noted he demonstrated an ability to “keep very thorough records and organized computer system regarding his health correspondence and needs.”[60]
[60] Ibid, p 109.
Ms Marsh noted the Applicant’s ability to leave his home was limited by his psychological and sensory impairments. She reported he relied on his assistance dogs to go to shops and communicate with health professionals.
Ms Marsh reported the LSP-16 indicates the Applicant is poorly groomed and does not clean or change his clothes when they are dirty, he has a moderate degree of neglect in relation to his physical health, does not maintain a healthy, balanced diet, and does not believe that he is capable of any work. However his WHODAS results indicate he has no difficulty getting dressed, eating or staying by himself alone for a few days with assistance dogs (without assistance dogs he would experience extreme difficulty going into the community) and that he has mild difficulty washing himself.[61]
[61] Ibid.
With respect to self-management Ms Marsh reported that the Applicant takes prescribed medication and usually complies with medical advice. He has extreme difficulty or is unable to take care of household responsibilities or do these well or in a timely manner. However he has a strength associated with numbers and money management.[62]
[62] Ibid, p 110.
Mr E then put forward some options for moving forward, indicating that he hoped they could continue to work together but that he took the welfare of his staff and dogs very seriously.[251] On 1 November 2021 Mr E sent the Applicant an update on Dog C’s progress. On 2 November 2021 he emailed the Applicant to ask if the Applicant was confident to continue.
[251] Ibid.
The Applicant has provided an email to him from SWF, recovery coach and support worker, Support Coordination Business, dated 5 November 2021 stating she had been trying to contact Mr E. She stated she wanted to continue to help the Applicant with this contact. He did not provide to the Tribunal his response to that email but provided a draft email SWF subsequently prepared to send to Mr E, denying allegations that the Applicant had threatened a trainer and addressing the Applicant’s request to be involved in Dog C’s training.[252] The Applicant responded by directing SWF not to send the email as the details were not correct.[253]
[252] Email from SWF to the Applicant dated 5 November 2021 at 9:49:35 (filed by the Applicant on 22 March 2024).
[253] Email from the Applicant to SWF dated 8 November 2021 (filed by the Applicant on 22 March 2024).
SWF sent a further email to the Applicant dated 8 November 2021 stating “Okay no worries, I'm going to email Mr E just asking him to contact me directly on the phone.”[254]
[254] Email from SWF to the Applicant dated 8 November 2021 at 10:24 (filed by the Applicant on 22 March 2024).
Mr E then emailed the Applicant on 18 November 2021 providing an update on Dog C’s training and advising that they needed some input regarding specific areas in which the Applicant would need Dog C’s support.
On 22 November 2021 the Applicant emailed Mr E setting out circumstances in which he needed support.
On 3 December 2021 Mr E responded indicating the circumstances for which Dog C could be trained and those where Dog C would not be able to support the Applicant.
On 20 January 2022 Mr E emailed the Applicant, advising that Business D had decided to terminate the supply agreement with the Applicant, and said “As you are aware the process of having an Assistance Dog with an organisation such as Business D is a long-term commitment where a relationship needs to be developed between Supplier and Client and we simply don't see the relationship being viable, in addition we have genuine concerns over the health and safety of the canine, you as a client, along with some of our other puppy raisers and lifetime handlers. Could you please forward bank details for the full refund to be submitted to, along with details of your NDIS plan number so that we can notify NDIS of the refund.” [255]
[255] Email from Mr E to the Applicant dated 20 January 2022 (filed by the Applicant on 22 March 2024).
The Applicant responded as follows: “As much as I do not agree with what you have done and how you have treated me over the past 4 to 6 months; my bank account details are below for the FULL refund of $35,213.20 as paid to you for the services which you now refuse to provide. I expect the total amount refunded to me in full and cleared no later than 5pm Friday 28/01/2022 (that is, the next day).”[256]
[256] Email from the Applicant to Mr E dated 27 January 2022 at 5:21pm (filed by the Applicant on 22 March 2024).
On 27 January 2022 Business D emailed the Applicant requesting his NDIS details and direct liaison because they wanted to notify the Respondent that they would be refunding the full amount the Applicant paid for Dog C. The Applicant was informed that the refund process may take 7-10 days.
The Applicant responded as follows: “You need nothing more than my account details as I have supplied. You have breached the contract. You have breached the conditions for the service I have paid. You have no rights to communicate with the NDIA about me. I have paid your invoice and you are refusing to provide the service. You are required to refund the amount paid in full NOW! I have already let my support coordinator know what has happened. I attempted to get a refund in November when you refused to stick to the agreement and the terms. You refused to do so. You are now saying you will refund in full. DO THE REFUND IMMEDIATELY. I do not accept your comment about refunds taking between 7 and 10 days. Your invoice was paid within a few days of being sent to me. The only reason it would take longer to refund is if you have been further fraudulent and tied up my funds in something else knowing that you are refusing me the service I have paid for. SEND THE REFUND TO MY ACCOUNT IMMEDIATELY AND DO NOT SEND ANY FURTHER EXCUSES OR ANY DELAYS. IT IS CLEARLY FRAUD THAT YOU ARE COMMITTING.”[257]
[257] Email from the Applicant to Business D dated 27 January 2022 at 6:40pm (filed by the Applicant on 22 March 2024).
Business D responded as follows: “I am sure you understand that as the funds have originated from an NDIS fund we have to notify NDIS that there is a refund taking place so that they can deal appropriately. Please refrain from suggesting fraudulent activity as that may be construed poorly. Business D has taken advice from NDIS and it is important that we ensure that they are made fully aware of the refund at the earliest possible time. (Which we obviously require your NDIS participation number for) Should this notification not happen then unfortunately NDIS may ask for evidence of service or request a direct refund from Business D if the previous refund hasn't been registered, therefore as soon as we have received notification from NDIS then we can process the refund appropriately which may take between 7 and 10 days.”[258]
[258] Email from Business D to the Applicant dated 27 January 2022 at 6:47pm (filed by the Applicant on 22 March 2024).
The Applicant later wrote to Business D and advised the money was paid from his account and they are required by law to refund the amount back to that account. He directed them to “refund the money now!!! Failure to refund the amount paid of $32,513.20 (sic) by close of business tomorrow, Friday 28/01/2022 will result in legal action against you”.[259]
[259] Email from the Applicant to Business D dated 27 January 2022 at 7:01pm (filed by the Applicant on 22 March 2024).
On 1 February 2022 Mr E wrote to the Respondent, copying in the Applicant, advising that a refund was due to be provided to the Applicant for cancelled services and, once “confirmed by NDIS Business D will process payment into the participant’s designated bank account within 7-10 days.”[260]
[260] Email from Mr E to the Respondent dated 1 February 2022 (filed by the Applicant on 22 March 2024).
The Respondent then wrote to Mr E on 15 February 2022, copying in the Applicant, advising that a refund had been requested by the Applicant for supports no longer required as they were intended and asking that no refund be paid directly to the Applicant until the Respondent confirmed how the money would be accounted for. The Respondent advised it would contact Business D about the next steps to be taken within 10-14 days.[261]
[261] Email from the Respondent to Mr E dated 15 February 2022 (filed by the Applicant on 22 March 2024).
As set out above, in response to receiving information about the Applicant’s purchase of an assistance animal, on 17 February 2022 the Respondent then undertook an unscheduled plan review initiated under the then subsection 48(4) of the NDIS Act and changed the Applicant’s plan management from self-management.
I note there is a significant gap in the emails provided to the Tribunal by the Applicant, between Mr E’s email of 3 December 2021 addressing the circumstances in which Dog C would be able to support the Applicant and the advice from Mr E on 20 January 2022, that Business D had decided to terminate the agreement with the Applicant. Clearly something happened during that period for Business D to decide to terminate its agreement with the Applicant and provide a full refund. I doubt that there were no email exchanges during this period. However I am not in a position to make findings about what happened in that period to result in the relationship breaking down and becoming so conflictual.
The Respondent has filed excerpts of emails provided to it by Mr E. I expressed concern at the hearing about the weight I could give those excerpts given they did not have all the details such as dates, recipients etc. That resulted in the Respondent’s summons application which was revoked for the reasons given above.
With respect to the excerpts from Business D, the Applicant stated at the hearing that the Respondent “is well aware, through the communication with me, that I do not agree with comments made by Business D. I believe that you are likely to refer to these later on, and I know that it’s been talked about throughout the AAT matter, which is things like Business D stating that I want refunds in order to purchase a car or do car repairs. The entire of these supposed emails from Business D to the agency have no merit and no reference, no direct reference to what they are.”[262]
[262] Transcript, p 167.
The Applicant has made unsubstantiated claims that Mr E and Business D are the subject of concerns about fraudulent activity and abusive behaviour. He has made claims that Mr E is “currently under investigation by SAPOL (South Australian Police) detectives at the X Police Station who are collecting statements in an effort to find and extradite Mr E back to Australia.”[263] Given the seriousness of these allegations, in the absence of supporting evidence, I am not satisfied these claims are reliable.
[263] Applicant’s closing submissions, filed on 16 May 2024.
However the weight I give to the material provided to the Respondent by Mr E is affected by the fact that I do not have the entire emails with all the particulars, just excerpts. While I have not seen in full the emails referred to by Mr E, I have considered the material. For the reasons given below, read in context, I am satisfied there is some substance to the material.
The Respondent’s submissions indicate Mr E forwarded to the Agency an excerpt from an email dated 18 August 2021 (the Applicant disputes the date provided and provided a copy of the said email which is dated 16 August 2021). Apart from the date the excerpt provided by Business D has the same text as that provided by the Applicant.
Mr E submitted that he was subsequently contacted by Support Coordination Business who advised the Applicant wished to apply for an assistance dog and as part of his recovery needed to have the dog stay with him and for him to be a major part of the training, and that he had funds “allocated for an Assistance Dog directly in his NDIS fund.” The is consistent with the events that occurred as there is no dispute that the Applicant initially sought to have the dog stay with him so that he could be involved in the training.
I note the excerpt Mr E provided of the Applicant’s email advising he had requested funds through his NDIS portal is slightly different to the text provided by the Applicant, in an email dated 13 October 2021, but essentially the same in substance, except that Mr E’s version includes a reference to a $5000 deposit.
Mr E submitted to the Respondent that after he received this email from the Applicant there was a handover and several contacts with the Applicant, including three face to face meetings at his motor home. Mr E claimed that “Later in the training period I received a phone call from YVTM during the night stating “I need a jacket for Dog C. I explained that we don’t provide jackets until we are confident of the dogs abilities to which he replied “Well what am I meant to be doing when I get refused again into a local shop”. I reiterated that the dog is not to be used in any public access setting until it has undergone assessment to which he replied ‘well I will just tell them to Fuck off when they ask’ he then hung up.”[264]
[264] EB 1, S4, p 347.
Mr E also submitted that he reviewed the Applicant’s submissions to the Facebook group and he formed the view the Applicant’s ability to have a pup was very much in doubt and he decided to remove Dog C. He then had a phone call with SWF who advised that the Applicant was not coping. He provided an excerpt, said to be from an email from SWH, support worker and recovery coach, Support Coordination Business, checking if the Applicant would be allowed to have Dog C once his training was completed.[265]
[265] Ibid, pp 347 – 348.
Mr E claimed to have responded to SWH noting that the Applicant’s support worker had advocated for the Applicant and reassured Mr E that the Applicant would be able to deal with the dog and that it would be ideal for him to be involved in the dog’s training. Mr E opined that this was incorrect. In Mr E’s view the Applicant did not have experience in training dogs as claimed, and he could not regulate his mental health challenges. Mr E stated that he was “disappointed that throughout this entire process (the Applicant’s) supports failed to notify us of (the Applicant’s) true abilities.[266]
[266] Ibid, p 349.
Other excerpts of emails provided by Mr E are essentially the same as those provided to the Tribunal by the Applicant. However Mr E also claimed that Business D received a phone call from an unknown number who they believed to be the Applicant who said “I need that money back straight away, because you have made me have to look at selling my motorhome because I was going to travel to (another town) and the truck is way too much to do that, I need that money back now so I can get a car”. Business D recorded that the recipient of the call explained that they would not discuss the matter and anything else needed to be in writing.[267]
[267] Ibid, p 353.
The Applicant has denied calling Business D and stating he needed the money back to get a car. I am of the view it is unnecessary for me to make a finding about whether the Applicant made this call as it is not relevant to my consideration of Rule 3.8 of the Plan Management Rules.
Mr E provided excerpts of other emails said to be from the Applicant, where the Applicant demanded Mr E return the money to his bank account immediately and warned Mr E that he had no right to contact NDIA and claimed that what he spent his money on was his choice. He accused Mr E of committing fraud. Mr E claimed to have written to the Applicant to advise that as the funds have originated from an NDIS fund Business D had to notify NDIS that there is a refund taking place so that they could deal with it appropriately, but they had made a business decision not to withhold the deposit or any monies for supports that had already taken place. I note this is all consistent with material the Applicant has provided.
I note from the email exchanges that conflict between the Applicant and Business D escalated almost as soon as Dog C was placed with the Applicant. Given the Applicant’s reason for approaching Business D, to have Dog B registered as an assistance animal so that the Applicant could take him to public places and not be denied access, I am satisfied the Applicant did request that Business D provide Dog C with a jacket so he was identifiable as an assistance dog. I am satisfied that Business D replied that he could not have the jacket until he was trained as this is a reasonable position to take. I am satisfied, given his impairments and difficulties in coping with conflict as described by Dr Roesler, this resulted in the Applicant becoming frustrated, swearing and hanging up.
The Respondent’s material indicates it was reported to the Agency that the Applicant sent abusive and threatening messages via the providers’ Facebook page, personal messaging and emails direct to other dog handlers.[268] Apart from the excerpts of emails described above, I have not seen evidence supporting this allegation and make no finding that the Applicant did this.
[268] Ibid, p 357.
The Respondent’s records indicate that in December 2021 concerns were raised by the Agency, in writing, with the Applicant about his behaviour.[269] He was advised that if he needed to attend an NDIA office, he must make an appointment. I note from the Respondent’s closing submissions that these restrictions are ongoing.[270]
[269] EB 1, S5, p 380.
[270] Respondent’s closing submissions, para 134.
There is an interaction note dated 16 February 2022 recording that the Applicant emailed the Agency’s FOI officer regarding his FOI request and stated in part “Your delay in processing this request and your continual refusal to do your job followed by your refusal to accept my request just one day before I am due to receive the information has caused me a huge amount of mental health concerns and you have put my physical safety at risk. You have caused me today to have to pull my vehicle over into an emergency only lane on a 100kmph road. If I become physically injured or worse, a statistic to the state and the country I will ensure that all my emails and my dealings with you are listed to be made public information and you personally along with the NDIA are held accountable for psychological injury causing bodily harm, manslaughter, neglect and similar applicable laws which you have breached and have led to the injury.”[271]
[271] EB 1, S13, pp 426 – 427.
There is an interaction note dated 18 February 2022 indicating the Applicant called the Agency advising that he needed emergency support as he was not happy that his plan management had been changed and was threatening self-harm. It is recorded that he indicated if the issue was not resolved on that day, or if a call dropped out and no-one called him back, he would make sure his problem was a headline of the news even if he had to jump off a building.[272]
[272] Ibid, p 416.
The Applicant was then transferred to a team leader. It is recorded the officer experienced rude, aggressive and threatening behaviour due to the Applicant not wanting to be placed on hold to be put through to the relevant support line. It is also recorded on 21 February 2022 that the Applicant was very angry and swore numerous times.[273]
[273] Ibid, pp 417 – 418.
An NDIA customer service officer recorded on 24 February 2022 that “Regular contact with YVTM has proven problematic given his abusive and threatening communication style.”[274]
[274] EB 1, S4, p 358.
There is an interaction note recording that on 1 April 2022 the Applicant was yelling and swearing during a call of 40 minutes’ duration. He was issued with three warnings, after which the call was terminated. It is recorded that the caller was very agitated and angry.[275]
[275] EB 1, S13, p 430.
It is recorded that the Applicant attended an NDIS office on 5 April 2022 and requested to speak to someone about his plan. He attended in person without making an appointment as he had been advised he was required to do. He declined to speak to an internal review officer. He was advised that he would need to wait for a call back. He then became agitated and aggressive towards the officer and advised he would not leave the building as he wanted to discuss with management the officer’s “rude and disrespectful behaviour.”[276] As he became abusive and intimidating, he was asked to leave the premises.
[276] Ibid, p 431.
The Applicant was reminded in writing on 6 April 2022 that he was required to make an appointment to meet with an officer so that he could arrange to bring a support person and the Agency could arrange for two staff members to attend the meeting. The Applicant was also advised that he would have a single point of contact officer and that further restrictions could be imposed.[277]
[277] EB 1, S6, pp 384 – 385.
There is a copy of the Applicant’s email to his single point of contact officer where he noted he had waited 2.5 hours (for what appears to be a response he was seeking to an email he had sent 2.5 hours earlier.) He then wrote to that officer as follows “BEFORE BEING SO CONDISCENDING AND PASSIVELY ABUSIVE TOWARD ME. HOW ABOUT YOU ANSWER MY QUESTIONS AND GIVE ME MY INFORMATION WHICH HAS BEEN REQUESTED AT VARIOUS INTERVALS AND VIA VARIOUS BOTH FROMAL AND INFORMAL METHODS. THESE MANY INFORMATION REQUESTS HAVE BEEN INCLUDING VARIOUS TOPICS OVER THE LAST FOURTEEN MONTHS. ALSO, GIVE ME MY RIGHTS TO COME INTO AN OFFICE AND SPEAK TO SOMEONE IN PERSON REGARDING MY SITUATION!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!”[278]
[278] EB 1, S9, p 391.
The Respondent’s material includes a complaint from a plan management provider, dated 23 December 2022 about the Applicant engaging in a repetitive, aggressive manner with staff. It is recorded that he attended their premises in person in a very escalated state, which required police attendance. The provider stated they were unable to meet the Applicant’s expectations and they had a concern for their work, health and safety.[279]
[279] EB 1, S13, p 437.
The Applicant has claimed there are times when he is able to negotiate suitable outcomes without becoming frustrated and without conflict. In his oral evidence he described negotiations he undertook regarding a treating professional’s charges. That treating professional has informed the Tribunal that he was aware of the issue and understood that the Applicant was about to discuss the issue with the clinic and negotiate a resolution.[280]
[280] Transcript, p 153.
I take this into account and accept that the Applicant negotiated with his treating professional’s clinic about charges. I note however that, unlike his relationship with the Respondent, there is no evidence to suggest he has had a history of conflict with the treating professional’s clinic. While I accept it is possible for the Applicant to negotiate and have exchanges that do not result in escalated conflict, the material before me suggests in other circumstances, for example in his exchanges with Business D, the Agency and the plan management provider, conflict has escalated to the extent that the Applicant becomes extremely stressed, frustrated and distressed. On his own evidence he was taken to hospital by police escort around the time that the Agency made its decision to change the plan management.[281]
[281] EB 1, S13, p 420.
Dr Roesler gave evidence that, after a crisis, the Applicant’s mental health spiralled and he was taken to a local hospital and had interaction with the mental health care system.[282] The Applicant told me that when he received a phone call from Business D, accusing him of mistreating Dog C, his mental health spiralled and he ended up being taken to Royal Adelaide Hospital where he was admitted as a short term patient.[283]
[282] Transcript, p 107.
[283] Ibid, p 194.
I also note Dr Roesler described the Applicant as being overwhelmed and traumatized by every aspect of his life and that he struggles with autonomy, decision making and working with people because of fear and lack of trust.[284]
[284] Ibid, p 109.
The Applicant has denied being abusive during phone calls with the Agency and has sought recordings of those interactions. As far as I am aware the Agency has not provided those recordings. I did however ask the Applicant at the hearing if he swears when he gets frustrated. He stated “I don’t disagree that I swear at times. I don’t believe I swear in the context that is being said as the ‘I am being threatening or that I am being abusive.’ I might say, and excuse myself here when I do use the swearing, but I might that something is shit, or I might say that ‘this is all fucked.’”[285]
[285] Ibid, p 208.
The Applicant told me that he tries to fit with society, and its norms. But there are times when he cannot control his emotional state. He believes that his autistic characteristics lead to him not distinguishing and at times, “what I’ve said is completely different to what I think I’ve said, not because I’ve meant to say it that way but because I’m not understood….but I definitely don’t feel that they’re going to be able to truthfully tell you that I swear at people or abuse people in a willing manner, or in a manner that I’ve not gone, ‘I’m sorry, that’s not what I meant.’”[286]
[286] Ibid.
The Applicant also told me that he feels he would be better off not supported by the Agency, and never having contact with them again.[287]
[287] Transcript, p 37.
On the basis of this evidence I am satisfied that the Respondent’s interaction notes about the Applicant swearing when frustrated are reliable and that the Applicant does swear when he becomes frustrated and cannot control his emotional state.
I asked the Applicant if he understood that the Agency has an obligation to provide its staff with a safe workplace and that his swearing might upset or frighten people. He stated “What I understand is that this is one of those challenges created by telephone communication or video communication. Where someone can’t see that I’m trying to stop, I’m trying to control myself, my dog is alerting me, I’m using different sensory tools, I’m trying to calm myself. They can’t see any of that, this again, leads to that need of face-to-face services.”[288] I note however that there are reported incidents where the Applicant had face to face interactions with Agency staff members that have led to the single point of contact arrangement because of the Applicant’s behaviour. I am not persuaded that face to face contact with the Agency on every occasion will result in less conflictual exchanges and better negotiations with the Agency.
[288] Ibid.
The Respondent has set out in its RSFIC incidents that have resulted in police involvement and/or the Applicant requiring mental health assistance, as follows:
(a)an incident in July 2022 where the Applicant presented at the Support Coordination Business Disability and Mental Health premises and was asked to leave by staff. The Applicant claims that SA Police were called to escort the Applicant from the premises, and that false allegations were made by the staff and he now has a "lifelong police record … (trespass)";[289]
(b)an incident in 2021 where the Applicant presented at Community Mental Health centre. The Applicant claims that this provider refused to provide services (as he is a participant of the NDIS) or documentation (in accordance with their policies). The Applicant refused to leave when asked to do so by staff, and subsequently SA Police and an ambulance were called to remove him from the premises;[290] and
(c)an incident in 2021 where the Applicant was transferred from the Royal Adelaide Hospital to Glenside Hospital – Acute. The Applicant claims that he was placed on a treatment order which was subsequently revoked. The Applicant claims that a psychiatrist at Glenside Hospital "lied to SACAT" about this order.[291]
[289] EB 1, A5, p 99.
[290] Ibid, p 103.
[291] Ibid, p 102.
The Respondent submitted that if the Applicant were to self-manage his funding for supports, he would be subject to periodic compliance reviews by the Respondent, for the purpose of ensuring that funding is spent in accordance with the plan. This would necessarily involve a greater degree of interaction with the Respondent, including the provision of documentation by the Applicant, at relatively short notice, subject to extensions of time being granted.
Self-management requires the Applicant to at times directly liaise with the Agency. I accept that compliance action is taken by the Agency from time to time, which requires more engagement and interaction with the Agency than the Applicant, if not self-managing, would otherwise have. The material before me raises significant concerns that the Applicant’s engagement with the Agency, and other organisations, causes him stress, frustration and distress. As Dr Roesler advised, it can be very difficult for the Applicant to manage his stress or difficult situations that arise and “he can be very self-destructive in terms of mindset.”[292]
[292] Transcript, p 111.
In considering the factors set out in Rule 3.8, I am mindful that the Applicant has needed engagement with mental health facilities and there has been police involvement at times when the Applicant has been frustrated in his dealings with organisations. I am of the view, if the Applicant were to self-manage the funding for his supports, the increased engagement and interaction with the Agency would cause him frustration and stress. This would make the Applicant particularly vulnerable to further interactions with police and the need for mental health supports. I am of the view, as a consequence, the Applicant may be mentally harmed by the demands of self-management. I give this factor significant weight.
I am also concerned that the Applicant may suffer financial harm if he were to self-manage the funding for his supports. I am of the view the Applicant’s focus on achieving a particular outcome, for example an accredited assistance animal, and his decision to use over $35,000 of his funding to achieve that outcome without going through the processes set out in the relevant guideline and securing the Agency’s approval to spend his funds in this way, demonstrates that the Applicant may use his funds in the future on supports that have not yet been considered reasonable and necessary. This will leave him without the funds he needs for his reasonable and necessary supports, such as support worker assistance.
I note from evidence the Applicant filed from Dr Lee that he has had episodes of doing impulsive things.[293] Dr Roesler gave evidence that the Applicant at times “can respond with impulsive behaviour to try and fill the emptiness he feels spending money...”.[294] I note the Applicant contacted Business D to have Dog B accredited. That quickly changed to a decision to purchase another dog and be involved in assisted training, at a cost of over $35,000, which he ultimately could not complete. I am of the view the Applicant’s decision to purchase Dog C was impulsive. This is relevant to my consideration of the Applicant’s ability to make decisions. I am of the view at times the Applicant’s decisions are impulsive and not measured and this may cause him financial harm.
[293] EB2, Tab 2.
[294] EB 2, Tab 5.
The Applicant has argued that he has demonstrated a sound ability to manage finances. At the hearing he told me “I would regularly log in to the Myplace portal and check what the funding showed. I would make excel spreadsheets, and I would calculate the number of days. I had written the formulas into the excel spreadsheet to show the number of days and what percentage of my plan had been, and then what my spending was, and what percentage that was, and where that meant the difference was as far as whether I was spending too quickly, or whether the plan would last. Other than that I was in constant discussion with my support coordinator to ensure that they were understanding what I was doing as well.”[295] The Applicant also said he is “100% competent” in paying invoices. He has been a property owner of multiple properties and has a skillset in finances.
[295] Transcript, p 91.
I accept the Applicant has been able to purchase and sell properties and manage to pay the bills associated with property ownership, and I take this into account. I note Ms Marsh observed the Applicant has a strength associated with numbers and money management. I accept the Applicant may have very good numeracy skills. However this is only one aspect of self-management. I am not satisfied this strength overcomes the concerns arising in relation to his decision-making and his vulnerability to harm.
As far as I am aware there are no relevant court or tribunal orders under which the Applicant’s property, finances or affairs are managed, wholly or partly by another person.
In considering whether any risk could be mitigated, I note the Applicant’s evidence that he is not supported by his family or friends. It does not appear that he has an informal support network which could assist the Applicant with managing the funding for his supports.
There is no evidence before me as to whether there are any safeguards or strategies the Respondent could put in place to mitigate risk.
I have also taken into account the letters of support from the Applicant’s previous support workers. I note some of those support workers formed positive views about the Applicant’s financial decision making and his capacity to self-plan, for example, SWG’s email dated 21 February 2024. I understand however from her email that her engagement with the Applicant preceded the Applicant’s self-management of his plan, as it was from February 2021 to June 2021. I did not hear from any of his former support workers so their assertions could not be tested.
Considered overall I am of the view self-management of the funding of the supports would present an unreasonable risk to the Applicant as referred to in paragraph 44(2)(a) of the NDIS Act. Accordingly, I am satisfied that the Respondent’s decision that the statement of participant supports in the Applicant’s plan be plan-managed is correct.
CONCLUSION
Considered overall, I am satisfied the supports in the plan are reasonable and necessary supports. I am also satisfied the following further support should be included in the Applicant’s plan:
(a)26 hours of psychology to be used over six months, with additional funding for a progress report.
I am also satisfied the Respondent’s decision that the statement of participant supports in the Applicant’s plan be plan-managed is correct.
DECISION
The internal review decision of 1 April 2022 made under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) which confirmed the reviewable decision of 21 February 2022, as varied on 2 March 2023 (the Applicant’s existing statement of participant supports) after the Tribunal remitted the matter for reconsideration pursuant to subsection 42D(1) of the Administrative Appeals Tribunal Act 1975 (Cth), is varied in the following terms:
(a)the date by which the Applicant’s plan is to be reassessed is 12 months from the date of the implementation of this decision (reassessment date);
(b)the following reasonable and necessary support will be funded under the Scheme:
(i)26 hours of psychology over six months, with funding for a progress report;
(c)All other supports in the Applicant’s existing statement of participant supports, except any one-off supports items already purchased, are to be replicated pro-rata from the date on which the psychology support specified above is included in the Applicant's statement of participant supports until the reassessment date; and
(d)the management of the funding for supports and other aspects of the Applicant’s plan will continue without change until the reassessment date.
I certify that the preceding 421 (four hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of
..................[SGD]....................................
Associate
Dated: 25 June 2024
Date(s) of hearing: 6,7,8 March 2024 Date final submissions received: 16 May 2024 Applicant: Self-represented, assisted by Ms Campbell Counsel for the Respondent: Ms A Rao Solicitors for the Respondent: Ms S Lim, MinterEllison
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