ZJSG and National Disability Insurance Agency

Case [2023] AATA 2784

ZJSG and National Disability Insurance Agency [2023] AATA 2784 (31 August 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/8914

Re:ZJSG

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member T Bubutievski

Date:31 August 2023

Place:Sydney

The Tribunal sets aside the decision under review and remits this matter for reconsideration by the Respondent with a direction that on or before 28 September 2023, the Respondent facilitate the approval of a new statement of participant supports (SOPS) for the Applicant, ZJSG, containing the following:

(a)16 hours per annum of psychology assistance in the form of 12 psychology sessions, two hours for report writing and two hours for review by a mental health occupational therapist;

(b)75 hours per annum for ZJSG to use in her preferred combination of psychosocial recovery coaching and support coordination;

(c)60 hours per annum for ZJSG to use in her preferred combination of occupational therapy, physiotherapy and podiatry;

(d)7 hours for an assessment by a continence nurse;

(e)15 hours per week at the weekday daytime rate of support work assistance for Social, Civic and Community Participation;

(f)7 hours per week (which can be across seven days per week) of support work assistance for personal care; and

(g)5 hours per week at the weekday daytime rate for cleaning.

.....................[SGD]...................................................

Member T Bubutievski

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – participant – reasonable and necessary supports – reasonable and necessary supports in relation to disability – supports not limited to accepted impairment – ‘impairment’ as an aide to administrative understanding – participants can seek supports for disabilities which do not meet the access requirements – test of reasonable and necessary is s 34 and the Rules – supports already provided in the Plan by the Agency for disabilities which do not meet the access requirements – exercise physiology not established to be reasonable and necessary – decision remitted

Legislation

National Disability Insurance Scheme Act 2013 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth)

National Disability Insurance Scheme (Supports for Participants) Rules 2013

Cases

Re BIJD and National Disability Insurance Agency [2018] AATA 2971
Frugtniet v Australia Securities and Investment Commission [2019] HCA 16
Goodliff and National Disability Insurance Agency [2021] AATA 5022
HPSC and National Disability Insurance Agency [2021] AATA 727
HRZI and National Disability Insurance Agency [2023] AATA 491
McLaughlin and National Disability Insurance Agency [2021] AATA 496
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v WRMF [2020] FCAFCA 79
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
VGCP and National Disability Insurance Agency [2020] AATA 5107
Young and National Disability Insurance Agency [2014] AATA 401
ZNDV and National Disability Insurance Agency [2014] AATA 921

Secondary Materials

Report To National Disability Insurance Agency: Key terms for animals in disability assistance roles, Dr Tiffani Howell, La Trobe University, 7 August 2019
La Trobe University - Reviewing Assistance Animal Effectiveness, Final Report to…

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AGLC
ZJSG and National Disability Insurance Agency [2023] AATA 2784
Case
[2023] AATA 2784
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by ZJSG against a decision of the National Disability Insurance Agency (NDIA) regarding the supports to be included in her NDIS plan. ZJSG, a participant in the National Disability Insurance Scheme since 2020 due to psychosocial impairments, sought review of her NDIS plan. The dispute centred on whether certain supports, particularly exercise physiology for chronic pain, were "reasonable and necessary" under the NDIS Act 2013 (Cth).

The court was required to determine the scope of "reasonable and necessary supports" under section 34 of the NDIS Act. Specifically, it needed to consider whether supports could be sought for disabilities that did not meet the scheme's access requirements, and whether exercise physiology met the criteria for reasonable and necessary supports. The court also had to assess the existing supports within ZJSG's plan and whether they adequately addressed her goals and needs.

The court reasoned that the term "impairment" in the context of NDIS access requirements served as an administrative tool, and participants could seek supports for disabilities beyond those for which they gained access. The primary test for determining whether supports were "reasonable and necessary" was found in section 34 of the NDIS Act, which outlines several criteria including assisting the participant to pursue goals, facilitating social and economic participation, representing value for money, being effective and beneficial, taking into account informal supports, and being most appropriately funded by the NDIS. The court found that while many of ZJSG's requested supports met these criteria, exercise physiology had not been sufficiently established as reasonable and necessary.

Consequently, the Tribunal set aside the NDIA's decision and remitted the matter for reconsideration. The NDIA was directed to approve a new Statement of Participant Supports for ZJSG that included specific allocations for psychology assistance, psychosocial recovery coaching, support coordination, occupational therapy, physiotherapy, podiatry, continence nurse assessment, support work for social, civic, and community participation, support work for personal care, and cleaning, to be implemented within a specified timeframe.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The bulk of the documents lodged by ZJSG were contained in the T Documents and the Joint Tender Bundle other than a bundle of documents lodged on 29 April 2022; a bundle of documents lodged on 22 December 2022; a letter from Dr Joel Maamary (Registrar for Dr S Bolito) dated 30 January 2023; and an email and attachments of 4 July 2023 relating to the request from the applicant for medications for chronic pain to be included in her plan. BACKGROUND ZJSG has been a participant in the NDIS since 2020 when it was determined that she met the “disability” requirements set out in s 24 of the NDIS Act. The disabilities for which she was granted access to the scheme are related to her psychosocial impairment. ZJSG lives alone in a Department of Housing townhouse in Sydney, New South Wales. She received support from support workers funded under her NDIS Plan. She also receives some informal assistance from her father, but he is ageing and they have a fractious relationship.[4][4] Joint Tender Bundle 11, 302.First NDIS Plan – 3 April 2020 On 3 April 2020, a delegate of the CEO of the NDIA (CEO) approved a statement of participant supports (First SOPS), resulting in the commencement of an NDIS plan for ZJSG on 3 April 2020 (First NDIS Plan).[5] The First SOPS was for a notional duration of one year. This plan provided for core supports totalling $38,098.02, made up of continence products and travel; capacity building supports of $11,709.91, including improved daily living ($5,548.14) and support co-ordination ($4,706.88); and $500 in capital supports for low-cost assistive technology. [5] Refer T-Documents 129.Second NDIS Plan – 18 June 2021 On 18 June 2021, a new statement of participant supports (Second SOPS) was approved for ZJSG for a notional duration of two years (Second NDIS Plan).[6] This plan included core supports for continence products, assistive technology, assistance with daily activities and transport of $98,602.94 ($49,301.47 per annum). It also included capacity building supports totalling $26,851.05 ($13,425.53 per annum). This included improved daily living of $11,639.40 ($5,829.17 per annum) with specific provision for 30 hours each of podiatry and occupational therapy; and $12,472.50 ($6,236.25 per annum) for a psychosocial recovery coach.[6] Refer T-Documents 142.Third NDIS Plan – 11 November 2021 On 11 November 2021, following a change of circumstances review request made by ZJSG, a new statement of participant supports (Third SOPS) was approved for ZJSG for a notional duration of two years (Third NDIS Plan).[7] This plan included core supports for continence products, assistive technology, assistance with daily activities (including assistance with self-care, personal domestic activities, house cleaning and yard maintenance); and transport totalling $79,508.62 ($39,754.31 per annum). It also included capacity building supports of $26,851.05 ($13,425.53 per annum), as in the Second NDIS Plan. ZJSG sought review of this plan.[7] Refer T-Documents 157.Internal review decision – 19 November 2021

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

There were also no proposals made to change the management of ZJSG’s plan, which is presently plan managed with the exception of ZJSG’s budget for support coordination which is Agency managed. The Tribunal was content with this management regime and could see no reason to change it under ss 33(2) of the NDIS Act.CONCLUSION The Tribunal concludes that each of the mandatory criteria in s 34 (1) of the NDIS Act are met and that the following supports are “reasonable and necessary supports” and should be included in ZJSG’s SOPS over a period of 18 months: (h)16 hours per annum of psychology assistance in the form of 12 psychology sessions, two hours for report writing and two hours for review by a mental health occupational therapist;(i)75 hours per annum for ZJSG to use in her preferred combination of psychosocial recovery coaching and support coordination;(j)60 hours per annum for ZJSG to use in her preferred combination of occupational therapy, physiotherapy and podiatry;(k)7 hours for an assessment by a continence nurse;(l)15 hours per week at the weekday daytime rate of support work assistance for Social, Civic and Community Participation;(m)7 hours per week (which can be across seven days per week) of support work assistance for personal care; and(n)5 hours per week at the weekday daytime rate for cleaning. The reasonable and necessary supports for completion of domestic activities for 3 hours per week and outdoor maintenance for 2 hours per week remain unchanged. Accordingly, the Tribunal sets aside the Decision Under Review and remits the matter for reconsideration with a direction that on or before 28 September 2023, the NDIA facilitate the approval of a new SOPS for ZJSG containing the reasonable and necessary supports referred to above in paragraph [161].

Ratio Decidendi

Legal Principle Established

The matters to be included in a participant’s plan are set out in s 33, relevantly:(1) A participant’s plan must include a statement (the participant’s statement of goals and aspirations) prepared by the participant that specifies:(a) the goals, objectives and aspirations of the participant; and(b) the environmental and personal context of the participant’s living, including the participant’s:(i) living arrangements; and(ii) informal community supports and other community supports; and(iii) social and economic participation.(2) A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:(a) the general supports (if any) that will be provided to, or in relation to, the participant; and(b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and(c) the date by which, or the circumstances in which, the Agency must reassess the plan under Division 4; and(d) the management of the funding for supports under the plan (see also Division 3); and(e) the management of other aspects of the plan.…(5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:(a) have regard to the participant’s statement of goals and aspirations; and(b) have regard to relevant assessments conducted in relation to the participant; and(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and(e) 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; and(f) have regard to the operation and effectiveness of any previous plans of the participant.… For the purposes of s 33(5)(c), the CEO must be satisfied of the matters set out in s 34:(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;(b) the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:(i) as part of a universal service obligation; or(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).