ZVTR and National Disability Insurance Agency - [2024] AATA 2635

ZVTR and National Disability Insurance Agency [2024] AATA 2635 (26 July 2024)
Division: NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2023/4029
Re:ZVTR
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member S Smith
Date:26 July 2024
Place:Brisbane

Pursuant to section 43(1)(c)(ii) of the Administrative Appeals Act 1975 (Cth), the decision under review is set aside and remitted to the Agency for reconsideration in accordance with the direction that:
(a)Funding for the acquisition, training (including initial PAT) and ongoing maintenance of the hearing assistance dog L from the date of purchase on 18 November 2022 is a reasonable and necessary support in relation to the statement of supports in ZVTR’s plan dated 15 March 2023 as reassessed on 11 January 2024 and 19 June 2024; and
(b)The reassessment date will be the day 12 months from the date that the reasonable and necessary supports at (a) above are included in ZVTR’s statement of participant supports.

..........................[SGD]..........................
Member S Smith

Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – National Disability Insurance Scheme Act - reasonable and necessary supports – hearing loss – request for a hearing assistance animal – where purchased prior to training as an assistance animal - reimbursement for purchase, training and maintenance costs expended – funding for future training and maintenance costs – value for money – lower cost alternatives - whether assistive technology offers a comparable benefit at a substantially lower cost - effective and beneficial – degree of benefit relative to costs – whether support related to the applicant’s disability – consideration of applicant’s functional capacity – access criteria - whether sufficient assessment undertaken - decision set aside and remitted for reconsideration.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Disability Discrimination Act 1992 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013
NSW Companion Animals Act 1998

Cases
Charrington and National Disability Insurance Agency [2022] AATA
G v Minister for Immigration and Border Protection [2018] FCA 1229
HRZI and National Disability Insurance Agency [2023] AATA 481
HTDD and National Disability Insurance Agency [2024] AATA 725
McGarrigle v National Disability Insurance Agency [2017] FCA 308
MDCT and National Disability Insurance Agency [2022] AATA 697
Mulligan v National Disability Insurance Agency [2015] FCA 544
Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11

National Disability Insurance Agency v WRMF [2020] FCAFC 79
NJSC and National Disability Insurance Agency [2022] AATA 4449
Nottle and National Disability Insurance Agency [2021] AATA 1014
PBZB and National Disability Insurance Agency [2023] AATA 3385
PPFQ and National Disability Insurance Agency [2019] AATA 1092
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Smith and National Disability Insurance Agency [2023] AATA 1616

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
WRMF and National Disability Insurance Agency [2019] AATA 1771

Secondary Materials
NDIS – Our model litigant guidelines, as of 22 July 2024
Operational Guidelines – Applying to the NDIS, as of 26 June 2023
Operational Guidelines – Assistance animals including dog guides, as of 20 June 2022
Operational Guidelines – Assistive technology, as of 30 December 2023
Operational Guidelines – Reasonable and Necessary Supports, as of 6 October 2023
REASONS FOR DECISION
Member S Smith
26 July 2024
BACKGROUND

ZVTR is a 58-year-old participant of the National Disability Insurance Scheme (the scheme). In 1996 ZVTR noticed a decline in her hearing following the birth of her second child.[1] Her hearing continued to deteriorate and in 2020 ZVTR became profoundly deaf.[2]
[1] T Documents, T23: Email of the applicant dated 6 June 2023, page 109.
[2] T Documents, T22: Report of Ms Ashlee McDowell dated 17 May 2023, page 97.
ZVTR was granted access to the scheme on 20 October 2016 on the basis of hearing loss. At that time she had a pet poodle B, a family dog of six years. In 2019 B was approved and trained to be an assistance dog (AD). Approximately four years later B was retired due to poor health.
On 18 November 2022 ZVTR purchased a three-month old golden retriever/poodle L to be trained and support her as a replacement AD. ZVTR subsequently made a request to the National Disability Insurance Agency (the Agency) that she be reimbursed for the purchase cost of L.
ZVTR also requested funding for training including the initial Public Access Test (PAT) and also the ongoing maintenance costs including food, veterinary bills and fees required for L to become an AD.[3]
[3] T Documents, T13: Assessment Template Assistance Animal dated 27 January 2023, page 61.
The decision under review
On 15 March 2023 the Agency approved a statement of participant supports (SOPS) that provided supports for ZVTR in relation to her hearing loss. The Agency did not approve ZVTR’s request to be funded for the purchase, training and maintenance costs of L.
On 19 April 2023 ZVTR requested an internal review by the Agency on the basis that funding for the purchase, training and maintenance of L represented a reasonable and necessary support for her impairments.
On 7 June 2023 the Agency notified ZVTR that they confirmed their earlier decision not to approve funding for an AD. On that same day ZVTR applied to the Administrative Appeals Tribunal (the Tribunal) for a review of that decision (the decision under review).
ISSUE BEFORE THE TRIBUNAL
The issue before the Tribunal is whether funding for L’s purchase costs, training and ongoing maintenance as an AD for ZVTR (the proposed support):
(a)is a reasonable and necessary support pursuant to section 34 of the National Disability Insurance Scheme Act 2013 (NDIS Act); and
(b)is appropriately funded by the scheme by virtue of section 35 of the NDIS Act.
The reasonable and necessary supports criteria at section 34(1)(a) to (f) are cumulative and therefore must all be met. The Agency contended that on the evidence the Tribunal cannot be satisfied in relation to section 34(1)(c) and (d).
If all the criteria in section 34 are met the Tribunal may then consider if the proposed support is excluded by application of the NDIS rules, which are prescribed under section 35 of the NDIS Act. Rule 5 of the NDIS rules contains the reasonable and necessary supports that will not be funded by the NDIS.
The Agency submitted that the proposed support is excluded by rule 5.1(b) and (d) because:
·the costs to purchase and train L to become an AD are not related to ZVTR’s disability; and
·the maintenance costs of L would be day-to-day living costs that are not attributable to ZVTR’s disability support needs.
The Agency also referred to the guiding principles and objects of the NDIS Act[4] and stated that the Tribunal must be satisfied that the proposed support accommodates ZVTR’s particular impairments and assists ZVTR to be a participating member of the Australian community.[5]
[4] Sections 3, 4 and 17A NDIS Act.
[5] R01: Respondent’s Statement of Facts, Issues and Contentions dated 18 March 2024 at [14]; National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [141].
THE LEGISLATION, PRECEDENT AND GUIDELINES
The National Disability Insurance Scheme Act 2013 (Cth)
Section 34 of the NDIS Act sets out the criteria of supports that will be funded by the scheme and provides as follows:
Reasonable and necessary supports
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(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 NationalDisability 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).
The NDIS Act also sets out a number of objects for the NDIS. The objects that are particularly relevant to the issues before the Tribunal are the following:[6]
[6] Section 3.
Objects of Act
(1) The objects of this Act are to:
…..
(c) support the independence and social and economic participation of people with disability;
(e) enable people with disability to exercise choice and control in pursuit of their goals and the planning and delivery of their supports;
(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community;
1.3 In giving effect to these objects, regard is to be had to:
(b) the need to ensure the financial sustainability of the NDIS.
Section 4 of the NDIS Act also sets out a number of principles that provide guidance when deciding what supports should be provided under the scheme. The principles that are considered of most relevance are as follows:
General principles guiding actions under this Act
(a) people with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development;
(b) people with disability should be supported to participate in and contribute to social and economic life to the extent of their ability;
(c) people with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime;
(d) people with disability should be supported to receive reasonable and necessary supports, including early intervention supports;
(e) reasonable and necessary supports for people with disability should:
(i) support people with disability to pursue their goals and maximise their independence;
(ii) support people with disability to live independently and to be included in the community as fully participating citizens; and
(iii) develop and support the capacity of people with disability to undertake activities that enable them to participate in the mainstream community and in employment;
(f) the role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected; and
(g) people with disability should be supported to receive supports outside the NDIS, and be assisted to coordinate these supports with the supports provided under the NDIS.
The National Disability Insurance Scheme (Supports for Participants) Rules 2013
Subsection 34(2) of the NDIS Act provides that the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the supports rules) may prescribe methods or criteria to be applied, or matters to which the CEO must have regard, in deciding whether the criteria under subsection 34(1) are met in respect of a requested support.
Section 35 of the Act provides for the making of rules in relation to prescribing reasonable and necessary supports that will not be funded under the NDIS.
In McGarrigle v National Disability Insurance Agency[7] Mortimer J made the following observation at [43]:
‘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’.
[7] McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle).
Relevantly to this decision, the Agency has relied on rule 3 and 5 of the supports rules which provide as follows:
Value for money
3.1     In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a)     whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)     whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c)     whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
……
(f)      whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
Effective and beneficial and current good practice
3.2     In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a)     published and refereed literature and any consensus of expert opinion;
(b)     the lived experience of the participant or their carers; or
(c)     anything the Agency has learnt through delivery of the NDIS.
3.3     In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
General criteria for supports
5.1A 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.
5.3 The following supports will not be provided or funded under the NDIS:
(a) a support the provision of which would be contrary to:
(ii) a law of the State or Territory in which the support would be provided.
The Agency also relied on rule 7.18(b) which states:
Employment
7.18 The NDIS will not be responsible for:
….
(b) the funding or provision of employment services and programs, including both disability-targeted and open employment services, to provide advice and support to:
(i) people with disability to prepare for, find and maintain jobs; or
(ii) employers to encourage and assist them to hire and be inclusive of people with disability in the workplace (ie support, training and resources, funding assistance to help employers make reasonable adjustments, and incentives for hiring people with disability, eg wage subsidies).
The Agency also made submissions in regard to ZVTR’s functional capacity and stated that the legislation has a ‘clear focus’ on capacity and functional capacity assessments in determining supports for a participant to be provided under the scheme.[8]
[8] Transcript of proceedings, page 180 lines 45-47.
Relevantly rule 5.8 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the access rules) provides as follows:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
The relationship between the concept of permanent impairment and the supports to be provided to a participant through a plan was discussed in National Disability Insurance Agency v Davis [2022] FCA at [69]:
‘What the legislative scheme focuses on is not the name of a person’s disability, nor the diagnosis given to a person - but rather what are the impairments experienced by a person which may require supports so that the person can participate in all aspects of personal and community life. It is the impairment which the scheme contemplates may affect the “functional capacity” of a person.’
(Original emphasis)
The phrase ‘reasonable and necessary’ is not defined in the NDIS Act. In WRMF and National Disability Insurance Agency [2019] AATA 1771 the Tribunal considered the meaning of the phrase in the context of the objects of the NDIS Act in section 3(1)(c), (e) and (g) and its guiding principles at section 4(3) and (11) and stated as follows:
[24] ‘Section 4(3) provides that people with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime. The word “need” in that section seems to me to bear its ordinary English meaning, and that suggests to me in turn that the word “necessary” in the expression “reasonable and necessary supports” also bears its ordinary English meaning. One should ask in that respect: does the support fulfil a need of the participant? The word will extend to a health need, but is not limited to health needs.
……
[31] ‘Section 4(11) states that reasonable and necessary supports for people with disability should support such persons to pursue their goals and maximise their independence; and support them to live independently and to be included in the community as fully participating citizens, and to develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment. If something about the disabled person means that he or she is not able to be included in the community as a fully participating citizen, and a reasonable and necessary support will avoid that result, it will be appropriate for it to be provided.’
(Tribunal emphasis)

In McGarrigle Mortimer J considered the phrase ‘reasonable and necessary’ with reference to the guiding principles of section 4(11), and also in the further context of section 14 which provides as follows: [9]
14 Agency may provide funding to persons or entities
(1) The Agency may provide assistance in the form of funding for persons or entities:
…..
(ab) for the purposes of enabling those persons or entities to assist people with disability to realise their potential for physical, social, emotional and intellectual development
[9] At [23].
Mortimer J observed that:
‘…in my opinion s 4(11) which sets out what reasonable and necessary supports should enable and empower people with a disability to do, read with s 14 which sets out the purposes for which funding for reasonable and necessary supports is provided.’
Of particular relevance to this application the Full Court in National Disability Insurance Agency v WRMF [2017] FCA 308 (WRMF) considered the threshold of ‘reasonable and necessary’ in justifying the expenditure of public funds stating, at [151]:
‘…there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.’
(Tribunal emphasis)
The Operational guidelines
The Agency issues Operational guidelines in relation to what are considered ‘reasonable and necessary supports’ in a participant’s plan. There is no power conferred by the Act to make these Operational guidelines, and they are issued in an exercise of executive power.[10] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational guidelines.
[10] G v Minister for Home Affairs [2019] FCAFC 79 at [18].
However, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[11] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[12] where Mortimer J held:[13]
‘Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it’.
[11] [1979] AATA 179 (1979) 2 ALD 634.
[12] [2018] FCA 1229.
[13] Ibid at [171].
Accordingly, unless the Operational guidelines are inconsistent with the provisions or objects of the legislation they should be considered in a determination of what is a reasonable and necessary support for ZVTR. The relevant guidelines to this review are:
·Operational Guidelines – Applying to the NDIS (the access guidelines);
·Operational guidelines – Reasonable and necessary supports (the supports guidelines);
·Operational guidelines - Assistance animals including dog guides (the AA guidelines); and
·Operational guidelines – Assistive technology (the AT guidelines).
Submissions were made by both parties in regard to ZVTR’s functional capacity and her ability to ‘completely or effectively’ participate in activities of daily living. Relevantly paragraph 8.3.1 of the access guidelines states:[14]
A person will be considered to be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period of time.
…
[14] Emphasis of the Federal Court in National Disability Insurance Agency v Foster [2023] FCAFC 11.
In considering the role played by assistive technology, home modifications and equipment, the NDIA will consider specific needs arising from the prospective participant’s impairment, and whether those needs are met (or need to be met) through the use of specialist disability aids and/or equipment.
The role of AT is discussed further in the AT guidelines below:
Assistive technology is only the equipment you need because it helps you do things that you normally can’t do because of your disability. It includes items that:
• mean you need less help from others
• help you do things more safely or easily
• help you to keep doing the things you need to do
• allow you to do tasks independently
• are personalised for you.
In respect of the criterion at section 34(1)(a) of the NDIS Act and at [13] above, the supports guidelines state:
Fair funding to pursue your goals
Goals are important. The supports we fund need to help you maximise your independence and pursue your goals. This means your supports should help overcome any disability-specific barriers which may be stopping you from pursuing your goals.
The AA guidelines define an AA as ‘an animal that is trained to perform at least 3 active tasks or behaviours which mitigate the effects of a person’s disability.’[15] This means at least 3 specific things that a participant needs but can’t do because of their disability, and also that:
·the animal wouldn’t naturally do the active tasks that helps the participant manage their disability; and
·the participant would need less of their other funded supports.
[15] AA guidelines, pages 1-2.
In respect of section 34(1)(c) and (d) the AA guidelines state:
Is an assistance animal value for money?
We look at:
·if there are other supports that will help you in the same way for a much lower cost, such as other types of assistive technology, therapy supports or a behaviour support plan
·whether there’s evidence that an assistance animal will make life much better for you than it is now and be of long-term benefit to you
·whether it’s likely to mean you’ll need less other supports funded in the long term. For example, it might mean you need less support from a support worker at home or to go out. To work this out we look at the long-term benefits of the assistance animal, such as how long it will help you, and the costs and benefits over time
·whether you need an assistance animal for your long term support needs
·whether the cost of the assistance animal is the same or similar to other assistance animals in your area
·how could the assistance animal help you to be more independent, and rely less on other funded and informal supports, including how long it would take to reduce your need for those supports
·how the animal will perform as an assistance animal, including the 3 active tasks it will do to help reduce the effects of your disability. You might have funding in your plan for a support worker to help you get around the community. An assistance animal may be better value for money. This is because you may not need the support worker to help you get around the community once you have a dog guide.
Is an assistance animal effective and beneficial for you?
We need to check if the animal meets the definition of an assistance animal and if it is, or will be, fully trained and qualified. We also need to think about good practice. This means we look at how effective the assistance animal has been for other people with similar support needs and in situations like yours. If you’ve had an assistance animal before, we’ll look at how the animal has helped you in the past. To decide if this support will be effective and beneficial for you, we think about:
·how the assistance animal will actively help you do at least 3 tasks that you can’t do because of your disability;
·the results and outcomes of having an assistance animal compared to not having one;
·whether you have any experience using an assistance animal, such as a trial of using it as a support;
·whether you’ve tried best-practice supports and how they worked for you. These are supports that have been helpful for others in similar situations. For example, things like other types of assistive technology or capacity building supports;
·whether the assistance animal has done, or will do, all the relevant training, which includes being qualified as an assistance animal and passing the public access test.
In respect to including funding for an AD in a participant’s plan including maintenance costs the AA guidelines state at page 20:
How do you get funding for an assistance animal in your plan?
If we decide an assistance animal meets our NDIS funding criteria, we’ll include the funding for the assistance animal in your plan. We’ll include the support in your Capital - Assistive technology budget.
…
We’ll also include ongoing maintenance costs for the assistance animal in your plan. This will be described in your Core - Consumables budget. It will cover maintenance support as long as the assistance animal is a reasonable and necessary disability support for your needs.
And then at pages 21-22:
If an assistance animal meets the NDIS funding criteria, we’ll also fund the ongoing maintenance costs that are included in the criteria.
We’ll only include support for an assistance animal that’s fully trained and qualified. We don’t fund these costs while the animal is being trained. It’s the provider’s responsibility to cover these costs. Or they could include them in the cost of buying or leasing the assistance animal. We also don’t fund maintenance costs for companion animals or pets.
CONTENTIONS AND EVIDENCE
In faithfulness to the legislation and judicial guidance set out above I have carefully considered all the evidence before the Tribunal and summarised below that which is relevant to the determination of this matter.
The Agency
The Agency concluded on the evidence that the correct and preferable decision is to vary ZVTR’s plan to include funding for an occupational therapy (OT) assessment of ZVTR’s home environment to determine the suitability of assistive technology (AT) around her home.[16]
[16] R01 at [58].
Value for money
The Agency contends that funding for the purchase, training and maintenance costs of L does not represent value for money relative to both the benefits achieved and the cost of alternative support.
In particular the Agency relies on the absence of a comprehensive AT assessment conducted within ZVTR’s home in order to fully explore AT options for ZVTR and determine whether the current AT in her home or additional AT would achieve the same outcome as an AD in addressing ZVTR’s functional limitations at a substantially lower cost.[17]
[17] R01 at [40].
The Agency considered the evidence of ZVTR’s functional limits and highlighted the relationship between the impairment that an applicant is granted access to the scheme on the basis of and effects on their functional capacity, and the supports that they subsequently require under the scheme.[18]
[18] National Disability Insurance Agency v Davis [2022] FCA at [69]; Respondent’s closing submissions, filed 14 June 2024 at [12].
The Agency accepted Ms Walmsley’s report as a ‘full and complete’ assessment of ZVTR’s functional capacity and concluded that an AD is not necessary for ZVTR in the context of her functional capacity because there are no activities that ZVTR is unable to perform independently without the use of an AD.[19]
[19] Respondent’s closing submissions at [23].
Notwithstanding an AD being of assistance the Agency maintained that ZVTR retains the capacity to function in all daily life activities independently, despite some limitations and difficulties that ‘at least most of’ can potentially be remedied through alternative support.[20]
[20] Transcript of proceedings, page 183 lines 10-14.
The associated costs of L over an expected 12-year lifetime are a total of $79,574.90.[21] Based on a finding that that there are no activities ZVTR is unable to perform independently, albeit with some difficulty, without the use of an AD[22] the Agency’s position is that the ‘high’ cost of an AD is not justified by its degree of benefit where ZVTR already has the capacity to function in all her activities of daily living.[23]
[21] Respondent’s closing submissions at [49].
[22] Respondent’s closing submissions at [23].
[23] Respondent’s closing submissions at [49].
In respect of the cost of alternative support, the Agency considered that simple AT would be significantly more financially viable than an AD because it may provide a comparable benefit at a significantly lower cost.
The Agency relied on Mr Dwyer’s evidence that appropriate AT for ZVTR would be estimated to cost:[24]
·$2,200.00 for an assessment of ZVTR’s home environment to determine the suitability of AT around her home; and
·$1,110.30 for the purchase of additional AT for ZVTR’s home.
[24] R19: Letter of Mr Glen Dwyer dated 12 March 2024, page 810.
The Agency also relied on Mr Dwyer’s evidence that the reliability of appropriate AT is likely to be greater than, or at least equal to the use of an AD.[25] The Agency therefore contended that the benefits of an AD do not outweigh the benefits of using AT, at least to the extent that it would outweigh the significant costs savings.[26]
[25] R15: Report of Mr Glen Dwyer dated 22 December 2023, page 743; R01, page 552.
[26] R01 at [39].
The Agency acknowledged that in making decisions about the provision of support under the NDIS Act, there are ‘difficult judgments’ to be made as to how limited health funds can best be allocated to the maximum advantage of the maximum number of recipients of those funds[27] and referred to MDCT and National Disability Insurance Agency as follows:[28]
‘it must be borne in mind that the purpose of the legislation is to enable people with disabilities to live as normal a life as possible given the disability. It is not to elevate them into a special category beyond that, so as to satisfy every want.’
[27] NJSC and National Disability Insurance Agency [2022] AATA 4449 (NJSC) at [104].
[28] R01 at [31]; [2022] AATA 697 at [62].
In determining the extent of the benefits achieved in section 34(1)(c), section 33(5)(b) of the NDIS Act states that the decision maker must have regard to relevant assessments conducted in relation to the participant.[29] Here the Agency referred to the comments of Mortimer J in Mulligan v National Disability Insurance Scheme [2015] FCA 544:
[55] Using the concept of impairment enables assessment of the severity and permanency of a person’s condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence.
…….
[56] …the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment…
That, in my opinion, recognises the spectrum of impairments which can be experienced by persons with disabilities, and accommodates different abilities within one person in terms of her or his daily activities. That is why a detailed functional assessment is so important.
(Respondent emphasis)
[29] Respondent’s closing submissions at [47].
Effective and beneficial with regard to good practice
On the provided evidence the Agency is not satisfied that the requested support will be, or is likely to be, effective and beneficial having regard to current good practice. An AT assessment in ZVTR’s home is considered necessary to determine whether an AD will be more effective and beneficial than lower-cost AT in assisting ZVTR to work towards and achieve her plan goals.[30]
[30] R01 at [53]; T Documents, T2, page 16.
The Agency agreed that an AD ‘will assist’ ZVTR to undertake activities, however that the effectiveness and benefit of an AD does not meet the threshold required[31] to be more than of ‘mere assistance’.[32]
[31] Transcript of proceedings, page 262 lines 9-12.
[32] Respondent’s closing submissions at [52].
The Agency submitted that the proposed support needs to be considered in the context of all aspects of ZVTR’s daily life[33] and that ZVTR is only assisted by L in ‘some aspects’.[34] Also, that there is insufficient evidence that best practice alternatives have been explored or implemented prior to consideration of a replacement AD.[35]
[33] Respondent’s closing submissions at [53].
[34] Respondent’s closing submissions at [54].
[35] T Documents, T2: Internal review decision dated 7 June 2023, page 16.
The support rules require that the Tribunal is to take into account, and if necessary, seek expert opinion.[36] In this regard the Agency referred to the AA guidelines as follows:[37]
To decide if this support will be effective and beneficial for you, we think about … whether you’ve tried best-practice supports and how they worked for you. These are supports that have been helpful for others in similar situations. For example, things like other types of assistive technology or capacity building supports. They’re generally seen by medical and allied health professionals as the best way to support people with similar disabilities.
[36] Rule 3.3; Transcript of proceedings, page 261 line 47 to page 262 line 3.
[37] AA guidelines, page 8; R01 at [50].
Relevantly, the Agency has funded three occupational therapy assessments for ZVTR in relation to her functional capacity and disability support needs and also funded Auslan classes as a capacity building support. The Agency considered that Auslan would help ZVTR achieve a ‘similar result’ to an AD to support her communication when accessing the community.[38]
[38] T Documents, T18: Your NDIS Plan Decision Explained Letter dated 15 March 2023, pages 85-86.
The Agency referred to the occupational therapy reports of Mr Dwyer, Ms Walmsley and Ms McDowell and concluded that ZVTR has yet to fully trial best practice supports that would facilitate her independence with activities of daily living.[39] The Agency considered that Ms Walmsley was the only person that performed a functional capacity assessment of ZVTR’s functional needs,[40] however gave the most weight to the report of Mr Dwyer and supported his recommendation of an AT assessment in ZVTR’s home and also his findings that AT would be significantly more financially viable than an AD.[41]
[39] R01 at [54].
[40] Respondent’s closing submissions at [16].
[41] R01 at [52].
Mr Dwyer was considered to have produced ‘balanced and objective reports’ detailing comparable supports including AT which would be more cost effective and also more beneficial than an AD as a way to facilitate ZVTR’s independence with activities of daily living.[42]
[42] R01, page 558.
The Agency contended that the Tribunal should give limited weight to the assessments of Ms Walmsley and Ms McDowell because their assessments were conducted in a clinical setting and in the community respectively.[43]
Relation of the proposed support to ZVTR’s disability
[43] R01 at [30].
The Agency maintained that funding for L’s training as an AD is not related to ZVTR’s disability. The Agency stated that supports funded under the scheme are targeted to needs required by a participant and does not extend to the funding of registering and training of support providers so that they can deliver such supports.[44]
[44] R01 at [23].
The Agency explained that the provision of funding to L’s support providers for L to be trained as an assistance dog would be comparable to a support worker’s training and registration being fully funded under a participant’s plan, simply because a participant had selected that particular support worker.[45]
[45] R01 at [24].
Accordingly the Agency submitted it follows that the purchase and maintenance costs of L cannot also be considered related to ZVTR’s disability and are excluded by rule 5.1(b) of the supports rules.[46]
Day-to-day cost of living
[46] R01 at [25].

The Agency has submitted that, on the basis that the purchase of L is not a reasonable and necessary support it follows that the maintenance costs of L are a day-to-day living cost not attributable to ZVTR’s disability support needs and therefore excluded from being funded by rule 5.1(d) of the supports rules.[47]
ZVTR
[47] R01 at [18].
About ZVTR
ZVTR lives independently in a single-storey house with L in New South Wales (NSW). ZVTR has two adult children who reside in Queensland and overseas. Her mother and a sister and brother live in New Zealand.
ZVTR has been completely deaf for the last four years.[48] ZVTR has bilateral cochlear implants which have externally fitted hearing processors although these processors cannot be worn all the time and do not ‘fix’ her hearing.[49]
[48] T Documents, T21: Letter of the applicant, undated, page 117.
[49] T Documents, T4: Report of Dr Eisenberg dated 9 August 2016, page 19; T Documents, T22, page 100.
ZVTR is employed as a youth worker in a residential setting.[50] She advised that due to her hearing limitations she is unable to support clients to access the community.[51] Therefore she will usually work overnight inactive shifts in a client’s home and remove her external processors when she sleeps.
[50] T Documents, T23, page 108.
[51] T Documents, T12: Report of Ms Emily Walmsley dated 30 November 2022, page 34.
At all times when communicating with other people ZVTR must lip-read. At the hearing ZVTR relied on lip-reading and in doing so also demonstrated the limitations of both the line-of-sight required for her to see words as well as the distance within which her processors will detect sound which was observed to be approximately three metres.
ZVTR’s impairments
ZVTR first noticed a decline in her hearing following the birth of her second child in I996.[52] In early 2016 ZVTR had her hearing aids checked and was informed that she would eventually lose all her hearing. ZVTR was subsequently diagnosed with profound bilateral sensorineural hearing loss.
[52] A01, page 257.
At the hearing ZVTR spoke of the impacts of her hearing loss. She stated that since becoming profoundly deaf all areas of her life have been affected and that ‘before going deaf I could not have understood the breadth and depth of the impact and consequences that going deaf has on one's life.’[53]
[53] T Documents, T27, page 124.
ZVTR explained that when not wearing her external processors she is completely deaf and unable to hear any sound.[54] When wearing the external processors ZVTR is hard of hearing and unable to accurately interpret or orient many sounds.[55]
[54] A01, page 258.
[55] A01, page 258.
ZVTR’s ability to meaningfully interpret sounds through the processors depends on a multitude of variables including surrounding noise, acoustics, elocution of the speaker, accents and the implant itself for varying technical reasons such as the quality of signal or interfering frequencies.
Despite these limitations ZVTR described her processors as a ‘Godsend’.[56] She referred to the loneliness, even when amongst friends that she could finally address by being able to talk with those who are important to her. Sub-optimal hearing environments however still cause ZVTR anxiety around many social and community settings.[57]
[56] Transcript of proceedings, page 11 line 47 to page 12 line 7.
[57] A01: Applicant’s Statement of Facts, Issues and Contentions dated 1 May 2024, page 261.
ZVTR wears the processors for approximately 11 hours each day. They must also be taken out at many times including when she is sleeping, showering, hair styling, dressing/undressing, in the rain, when suffering pain and discomfort and when experiencing sensory overload or listening fatigue.[58]
[58] T Documents, T27, page 121.
ZVTR’s functional capacity
ZVTR’s evidence was that losing her functional capacity in ‘passive activities’ of hearing has affected her ability to attend to all tasks of daily living in particular sleeping, communication, social behaviours and economic participation.[59]
[59] Applicant’s closing submissions filed 2 July 2024 at [1-4].
She stated that she is most impacted when she is unable to wear her processors which is for 12 to 13 hours each day, and especially when showering and getting dressed at home and also in public locations such as a gym.[60]
[60] Transcript of proceedings, page 169, lines 7-29; Applicant’s closing submissions at [6-7].
ZVTR contended that hearing loss restricts her beyond her capacity for ‘intentional, physical and movement-based activities’ because, both with and without her processors she misses the ‘auditory cues’ necessary for her safe and effective engagement in activities of daily living.
She emphasised her circumstances of living alone and explained that she cannot, ‘with peace of mind’ do a task like showering in the manner of a person without a disability on the basis that she must keep the door open to allow her AD to access and alert her if required.[61]
[61] Transcript of proceedings, page 171 line 39 – page 172 line 3.
ZVTR raised further safety concerns around accessing the community when she is wearing her processors but unable to hear effectively.[62] She also considered that she is restricted from effective engagement with activities such as volunteer work, socialising with friends and attending writing groups.
[62] T Documents, T12, page 30.
As a consequence of her hearing loss, including the functional limitations of her processors ZVTR stated that she experiences difficulties in undertaking her activities of daily living as follows:
·significant issues with hearing in functional environments in particular where there is more than one person present, any echoing or background noise or her line-of-sight to lip-read is interrupted;[63]
·a restricted ability to access locations in the community that do not have appropriate facilities for a hearing impairment;
·fatigue due to the increased effort of active listening required for her to communicate as well as the over-stimulation of noise through her processors, which do not distinguish sounds but rather create a ‘bundle of noise’;[64]
·inappropriate social interactions with people unfamiliar with her disability including with security guards and police officers that have targeted her for suspicious behaviour due to her hearing loss;[65]
·interference with her cochlear implants from certain sounds such as her phone ringing and also some websites with embedded audio which must be manually adjusted using an application on her phone;[66]
·other technical issues with the microphone on her processors becoming disrupted and not picking up any sounds at all which presents safety issues such as when in traffic;
·reduced independence in domestic tasks when she cannot hear alerts such as the fridge door and washing machine alarms that require her attention; and
·feeling unable to maintain her own safety especially out in the community where she cannot hear cars and pedestrians as well as at night when she cannot hear any disturbance. ZVTR is consequently in a ‘perpetual state of hypervigilance’.[67]
[63] A02, page 289.
[64] Transcript of proceedings, page 12 lines 29-30; page 37 lines 1-5.
[65] A01, pages 251 and 261.
[66] A01, page 259.
[67] A01, page 261.
ZVTR referred to the ‘codified reporting of sounds’ of how she could read B’s body language and use eye-contact to be alerted to warnings.[68] She gave examples at the hearing of B’s body language alerting her to untrained ‘triggers’ including unannounced men on her property as well as the fuse box in her hallway catching alight.[69]
[68] A01, page 273.
[69] Transcript of proceedings, page 23 lines 29-32; page 33 lines 35-39.
Under cross-examination ZVTR maintained that her ability to function independently in daily activities could not be considered ‘leaving aside the very unforeseen’ events such as the fire and men at her property because for her they are ‘a very real part of everyday life’.[70]
[70] Transcript of proceedings, page 171 lines 27-29.
ZVTR’s goals
ZVTR submitted that an AD assists her to achieve the goals and aspirations set out in her participant plan.[71] In her plans of August and November 2021 ZVTR’s goals included:[72]
·I want to get all necessary assistive technology that will help me to function to my potential and live independently.
·I would like to continue living in my own home independently.
·I would like to continue in my current employment whilst continuing to explore other work options.
[71] A01, pages 264-267.
[72] T Documents, T30: NDIS Plan dated 26 August 2021, page 133; T31: NDIS Plan dated 14 November 2021, page 146.
ZVTR’s independence
Since losing her hearing ZVTR has found the loss of her psychological, physical and financial independence to be ‘immeasurable’.[73] ZVTR stated that living alone as a deaf female makes her feels vulnerable which impacts her social and community participation.[74]
[73] T Documents, T27, page 123.
[74] T Documents, T27, page 117; A01, page 260.
ZVTR described the anxiety and isolation she has experienced since losing her hearing and explained that the more confident, secure, safe and accepted she feels the more independent she can be in her day-to-day life.[75]
[75] A01, page 264.
ZVTR maintained that an AD is the only support that enables her to be as independent as possible within the limitations of her hearing loss. ZVTR gave reasons as follows:
·having an AD around at home allows ZVTR to not be in ‘hypervigilant mode’. The anxiety and stress around missing sounds including being alerted to the presence of people is relieved by knowing that if something does happen her AD would alert her;[76]
·ZVTR’s experience with AT is that it does not adequately alert her to ‘auditory cues’ around the home and in the community, such that she can confidently engage with her community and feel safe both in her community and at home;[77]
·an AD is ‘the biggest thing’ that makes her feel safe in her own home, especially at night when the processors are removed.[78] ZVTR stated that ‘B provides a sense of calm and improves my safety within my home’;[79]
·with B’s support ZVTR has been able to live her life independently for many years and shop, live alone and keep herself safe;[80]
·B has allowed her to independently travel both locally and overseas and also maintain employment; [81] and
·the reliable support that an AD provides has instilled her with the confidence to maximise her potential, build her capacity and maintain her independence.[82]
[76] A01, page 264.
[77] A01, page 278.
[78] A01, page 266.
[79] T Documents, T32: NDIS Plan dated 20 January 2023, page 157.
[80] T Documents, T13, page 60.
[81] R12, page 704.
[82] Ibid.
ZVTR considered that a support worker is the only alternative to an AD of comparable benefit but that it would not enable her to maintain ‘true independence’.[83]
[83] T Documents, T27, page 123.
ZVTR’s request to the Agency
Prior to losing her hearing, ZVTR stated that she had made inquiries for an assistance dog through an alternative provider but was ineligible as other dogs already lived in her home.[84]
[84] Transcript of proceedings, page 12 lines 19-20.
In the impending likelihood of no longer being able to hear B’s ‘audible alerts’, in September 2019 ZVTR had B assessed as an AD and stated that luckily, he was deemed suitable.[85] B was co-trained by ZVTR and a professional trainer and subsequently registered as an assistance animal in NSW.[86]
[85] Transcript of proceedings, page 12 lines 21-23; T Documents, T23, page 110; T27, page 122.
[86] R03, page 565.
In November of 2021 ZVTR travelled overseas with B for seven months.[87] Upon their return to Australia B was quarantined for ten days by the Department of Agriculture. ZVTR stayed at her son’s home whilst B was in quarantine and reported not being able to sleep.[88] B continued to live with ZVTR and was retired from AD duties by June of 2023.[89]
[87] T Documents, T23, page 113; T12, page 34.
[88] A01, page 265.
[89] Transcript of proceedings, page 202 lines 40-41.
Following B’s retirement ZVTR contacted the Agency for assistance in finding a 'registered assistance animal provider’ and to request funding for a ‘replacement assistance animal’.[90] ZVTR also made inquiries of any relevant assessments that the Agency would require.[91]
[90] R03, page 566.
[91] T Documents, T27, page 122; A29: Email from applicant’s LAC dated 11 October 2022, page 529; A30: Email from applicant’s LAC dated 14 November 2022, page 533.
ZVTR’s evidence was that B was a ‘successful trial’ as an AD and that she relied on B for security and support in many aspects of day‐to‐day life. Also, that she was anxious around the possibility of not having an AD including the consequences for her independence and ability to access the community and travel freely.[92]
[92] A01, page 262.
On 14 November 2022 the Agency conducted a ‘light touch’ plan review that increased ZVTR’s capacity building supports for the completion of a full capacity assessment and an assistance animal assessment.[93]
[93] A30, page 531.
Around that time ZVTR had found a reputable breeder experienced in breeding ADs who had a litter available and would not again for another year.[94] L was purchased from the breeder on 18 November 2022, and then registered as an assistance animal on 22 February 2023 with the NSW Companion Animals Register under section 72 of the NSW Companion Animals Act 1998.[95]
[94] Transcript of proceedings, page 237 lines 7-18.
[95] T Documents, T16: Certificate of Registration, page 80.
On 20 January 2023 and again on 15 March 2023 the Agency conducted a full plan reassessment on the basis of new information in relation to ZVTR’s disability support needs.[96] The new plans both included funding for an AT assessor and an occupational therapist to provide ZVTR with information relating to her AA support needs.
[96] T Documents, T32; T33.
ZVTR submitted that the costs of the proposed support are as follows:
a)one-off cost of purchase for L - $3,500.00;[97]
b)costs for training L in the first year (including initial PAT) - $17,740; and
c)ongoing maintenance costs of $4838.00 each year thereafter for a working life expectancy of approximately 12 years.
[97] T Documents, T11: Receipt for animal purchase dated 18 November 2022.
The assistance dogs
At the hearing ZVTR described the difficulties of becoming deaf and living with hearing impairments. ZVTR stated that it was with B’s support as an AD that she was able to navigate the fears and obstacles of living with her disability.[98]
[98] Transcript of proceedings, page 12 lines 29-32.
ZVTR maintained that L is not a pet.[99] She stated that L was purchased ‘solely and directly’ as a result of her hearing loss to mitigate the effects on her functioning and maintain her independence.[100] ZVTR explained:[101]
‘L was chosen, and acquired specifically because I now rely on an AD for security and support in many aspects of my day‐to‐day life ‐ not the least of which is maintaining my independence and continued ability to work.’
[99] A01, page 276.
[100] A01, page 256; page 276.
[101] T Documents, T27, page 122.
ZVTR relied on her experience with B as an AD to demonstrate the benefits that L would provide. B alerted ZVTR to auditory cues ‘in real time’ by making physical contact and through recognisable behaviours.[102] Auditory cues that ZVTR relied on B to alert her to included:
[102] T Documents, T27, page 123.
·at home:[103]
[103] R01, pages 552-554.
oknocks at the door/doorbell;
ofridge door left open;
otaps left running;
owashing machine alerts;
ophone ringing;
osmoke/fire alarm; and
ounannounced people on her property;
·in the community:[104]
[104] T Documents, T26: Letter of the applicant, undated, page 117; A01, page 261; R01, page 555.
oher name being called;
oapproaching cars and traffic;
opedestrians and cyclists;
odirections given by security guards, police officers and staff;
osirens and alarms;
owarnings such as screams, items falling and collisions; and
ounwelcomed interactions including an intruder in her hospital room when receiving her second cochlear implant; and
·at work:[105]
oknocks at the door; and
oa client requiring her attention.
[105] R01, page 555.
In addition to alerting ZVTR to auditory cues, B provided further direction and support by indicating the location of sounds and leading ZVTR to sources of noise at her order of ‘show me’.[106]
[106] T Documents, T19: Email of the applicant dated 19 April 2023, page 92.
In the community, B supported ZVTR by giving a clear visual signal to people around her that she has a disability and requires additional assistance.[107] ZVTR’s evidence was that when she is accompanied by an AD she experiences different treatment from people who are not familiar with her impairments and therefore feels more able to participate in the community.
[107] R13: Response to the respondent’s targeted questions to Ms Emily Walmsley dated 20 October 2023, page 737.
ZVTR described the patience and empathy B would engender with people in the community when wearing his signed AD vest and identifiable lead. ZVTR stated that having an ‘invisible’ disability can lead to judgement and frustration in public places and she has been told that ‘I do not look deaf’.[108]
[108] Transcript of proceedings, page 11 line 16.
ZVTR was also able to travel independently with B’s assistance. ZVTR has previously been able to spend a week travelling in the NSW region in a rental van using campsite facilities which, she stated, had a large enough gap under the shower doors for someone to crawl under such that she could not use it without her AD present.[109]
[109] Transcript of proceedings, page 248 lines 10-19.
In her submissions ZVTR stated:[110]
‘There is nothing that can give me back natural hearing and therefore nothing that can provide me with its benefits ‐ the two things that have made my life liveable are cochlear implants enabling me to communicate with those that matter and the support that B provided as an Assistance Dog and which L is beginning to.’
[110] T Documents, T27, page 124.
Assistive technology
ZVTR maintained that AT does not mitigate the effects of her hearing loss or support her independence.[111] She also submitted that the provision of an AD would eliminate the need for some AT supports that she is already funded for and thereby reduce the cost of her other supports.[112]
[111] A01, page 278; R12, Response to the respondent’s targeted questions to Ms Ashlee McDowell dated 11 October 2023, page 713.
[112] A01, page 270.
ZVTR did not oppose a comprehensive AT assessment being conducted at her home although she did submit that such an assessment was ‘almost redundant’ on the basis that it would not assess all aspects of her disability with regard to the functional limitations of AT and her support needs at home, in the community, at work and when travelling.[113]
[113] Transcript of proceedings, page 187 lines 5-17.
At the hearing ZVTR confirmed that she has trialled AT devices that the Agency considered may be suitable alternatives to an AD.[114] These included:
·cochlear implants, including a mini mic and TV streamer;
·security cameras at the front and rear of her property;
·a ‘bed shaker’ that connects to her phone at night and is set off by any alerts to her phone, from her security cameras and from a smoke alarm and then vibrates enough to wake her;
·telephone alert;
·doorbell with phone alert;
·speech-to-text software for her phone; and
·a smoke detector with an LED visual alarm.
[114] Transcript of proceedings, pages 186-193; R19, page 810.

ZVTR described her experience with these AT as unreliable.[115] She gave evidence that the security cameras she has installed around her home have in the past given her false alerts that someone is on her property yet also not detected when her car was broken into.[116]
[115] A01, page 272; R03, page 564; Transcript of proceedings, page 192 line 40; page 193 lines 1-4
[116] Transcript of proceedings, page 193 lines 1-4; A05; A06; A07; A08: Screenshots from the applicant’s home security cameras.
Once triggered, the cameras set off a loud alarm and also send a notification to ZVTR’s phone, but do not wake her to alerts.[117] At night ZVTR therefore relies on her AD to wake her to the sound of the camera’s alarm.
[117] Transcript of proceedings, page 225 lines 9-19.
ZVTR stated that she had not trialled other AT on the basis that they were ‘not suitable’ which included:[118]
· flashing strobe light doorbells; and
· a programmable door alarm for the fridge/freezer.
[118] Transcript of proceedings, pages 191-193.
ZVTR considered that the AT devices suggested were unsuitable because they are ‘static visual alerts’ that rely on her ‘to be constantly checking in with it’.[119] She referred to the fridge door alarm specified by Mr Dwyer which used a 5mm diameter light as well as an audible alarm.[120] She further considered the devices of limited use because they are confined to her home and of no assistance at work, in the community and when travelling.[121]
[119] T Documents, T26, page 118; Transcript of proceedings, page 191 line 5
[120] Transcript of proceedings, page 192 lines 16-24.
[121] T Documents, T26, page 118.
ZVTR’s evidence was that AT is ‘not adaptable to all the complexities that natural hearing cover and protect against’ and still requires her attentive behaviour and hypervigilance.[122] ZVTR stated that she has some 18 years’ experience trialling AT and 5 years trialling supports provided by an AD,[123] and that her conclusion is that an AD is the only support that:
a)    assists her to achieve her goals;
b)    best suits her support needs; and
c)    reduces her anxiety and hypervigilance.
[122] A01, page 272.
[123] A01, page 278.
Support workers
ZVTR’s evidence was that the only two options that will alert her inside and outside the home (including finding her if necessary) in real time are a support worker and an AD. ZVTR is currently funded a total amount of $5815.44 in her core supports budget which can be used flexibly over twelve months for supports including low-cost AT and engagement of support workers.[124]
[124] R21, page 830-832.
However in the past ZVTR has required additional funding on request to the Agency for support worker funding to assist her to travel. She referred to recent visits to a family member that required support worker assistance over 20 nights at a cost of $5,200.[125] ZVTR’s parents, two children and brother live interstate and overseas.[126] She considered that an AD will flexibly support her at no extra cost to visit her family, travel or move home.[127]
[125] A01, page 271.
[126] A01, page 257.
[127] A01, page 271; Transcript of proceedings page 196 line 41.
ZVTR’s evidence was that an AD will be a cheaper support year on year than funding for a support worker around the home, at work, and in the community.[128] Specifically, support workers are required when ZVTR is unable to hear, for all nights spent away from home, some shifts at work and during periods where other alerts would not function or be of use including power outages.[129]
[128] T Documents, T26, page 118.
[129] T Documents, T19, page 91.
Capacity building supports
ZVTR has provided evidence of her engagement with learning Auslan[130] and maintained that Auslan, as a language, is of no assistance to her communication in her community where there are no other Auslan speakers nor does it address the nature of support that she requires.[131] At the hearing ZVTR pointed out as an example that Auslan would not alert her to a smoke alarm.[132]
[130] T Documents, T24: AUSLAN Certificate of Completion on 30 May 2017, page 115.
[131] T Documents, T27, page 122; A01, page 278.
[132] Transcript of proceedings, page 189 lines 33-35.
Ms Cleon Kirby, audiologist and area manager, Nextsense Audiology
Ms Cleon Kirby has over 23 years’ experience as a clinical audiologist including ten years working solely in the area of cochlear implants.[133] Ms Kirby co-authored a report answering targeted questions from the Agency based on her professional expertise and experience as an audiologist[134] and also gave evidence at the hearing.
[133] Transcript of proceedings, page 83 lines 34-38.
[134] R04: Response to targeted questions by Ms Cleon Kirby and Ms Lori Sword dated 4 September 2023.
Ms Kirby confirmed that ZVTR has no useable hearing without her processors and with them has ‘mild hearing loss’.[135] Cochlear implants, she explained, do not work like normal hearing.[136] Wearing hearing processors gives ZVTR ‘access to sounds’ in her environment however that ‘what someone with cochlear implants does with that sound is very individual’.
[135] Transcript of proceedings, page 97 lines 16-17.
[136] Transcript of proceedings, page 97, lines 38-47.
Ms Kirby stated that hearing processors did have limitations with regard to distance[137] which was around three metres.[138] Further, that background noise and group situations could also be particularly challenging. Ms Kirby’s evidence was that the only way ZVTR’s access to sounds could be measured was in a ‘very controlled way’ in a soundproofed booth with standardised tests that are set at 60 decibels.[139]
[137] R05, page 581.
[138] Transcript of proceedings, page 93 lines 26-28.
[139] Transcript of proceedings, page 97 line 47 to page 98 line 1.
In Ms Kirby’s opinion ZVTR had done ‘really, really well’ with her processors and achieved a ‘great result’ by not delaying the implant surgeries and also by wearing them for the full 12 hours a day recommended.[140]
[140] Transcript of proceedings, page 92 lines 6-13.
Ms Kirby detailed the following functions of cochlear implants that are available to ZVTR and designed to assist in noisy situations:
·SCAN function which ‘recognises’ and adjusts to changes in a listening environment such as recognising that ZVTR is in a noisy restaurant and automatically suppresses loud noises such as laughter;[141]
·ForwardFocus setting that ZVTR can enable through a phone app to reduce sounds that are received from behind her and improve hearing in a face-on conversation; and
·A MiniMic 2 portable microphone that can be worn by a speaker and streams their voice directly into ZVTR’s sound processors to assist with hearing others in the community and at work.
[141] Transcript of proceedings, page 35 lines 19-25.
Ms Kirby advised it was recommended ‘numerous times’ to ZVTR that she utilise the noise reduction features of her processors which were currently disabled at ZVTR’s request.[142] In response to ZVTR’s evidence that the SCAN feature would suppress both background noises as well as the speech of a person in front of her, Ms Kirby stated that it was possible if the sound in front of her was loud enough.[143]
[142] R05, page 582; Transcript of proceedings, page 92 line 40 – page 93 line 2.
[143] Transcript of proceedings, page 92 line 46 - page 93 line 15.
Ms Kirby was asked to consider supports to address the functional impacts ZVTR experienced as a result of her hearing loss as follows:
·not being aware of certain sounds without her sound processors while she is in bed or in the shower (e.g., knocking on the door, a smoke alarm, or a potential intruder breaking in);
·not being aware of dangers (or the direction of dangers) in the community (e.g., a car or bike behind her while walking);
·not being able to hear kitchen sounds (e.g., fridge alarm and pots boiling over on the stovetop); and
·not being able to hear knocks on the front house door while in the bathroom.
There were no upgrades to the processors that Ms Kirby considered would assist ZVTR with hearing dangers in the community above and beyond her current technology.[144] Ms Kirby’s opinion was that AT including visual alerts, support workers and an AD could be of assistance with ZVTR’s functional impacts, and that capacity-building supports including therapy and Auslan would not.[145]
[144] R05, page 582.
[145] R05, page 583.
Ms Emily Walmsley, occupational therapist, Hoys Allied Health + Wellness
Following their discussions on 10 October 2022 the Agency informed ZVTR that her new plan would include funding for her to have assessments with an OT for a new assistance animal and evidence the functional impacts of her disability on her daily life.[146]
[146] A29, page 529; A30, page 530.
In-clinic assessment
ZVTR was referred to Ms Emily Walmsley on 30 November 2022 for assessment of her support needs and assessment of AT, in relation to her diagnosis of hearing loss and also her goals, namely:
·to begin training a new therapy assistance dog; and
·to stop ‘having to fight for everything’ including funding and social connections.
Due to access issues at ZVTR’s rural location the assessment was conducted at Ms Walmsley’s clinic.[147] Follow-up phone calls and emails were also made to complete the assessment including the review of further information regarding ZVTR’s home.
[147] R13: Response to respondent’s targeted questions by Ms Emily Walmsley dated 20 October 2023, page 720.
Ms Walmsley stated that as a result of her complete hearing loss ZVTR experienced difficulty in her capacity for tasks of communication and social behaviours, some difficulty in sleeping and some safety concerns in cooking. Ms Walmsley identified ZVTR’s functional limits of home safety, identifying sound source, being alerted of dangers in the community and alerting others in the community of her disability.
Ms Walmsley recommended an AD to assist ZVTR in the following tasks:
·home safety including watching for intruders and alerting ZVTR or assisting ZVTR to interpret direction of noise by taking her to site of noise source;
·bringing ZVTR her earpieces at night if required;
·alerting ZVTR of dangers in community that she has difficulty hearing such as being approached by a car or bike from behind; and
·providing emotional support and comfort in the community as well as at times when her earpieces go flat, and she becomes frightened.
Also recommended was an increase in support staff for times when ZVTR has difficulties interpreting voices, particularly when not in one-on-one interactions which can become distressing for ZVTR and cause her to feel overwhelmed. Ms Walmsley noted specific situations of concern for ZVTR including applying for a visa and attending court.[148]
[148] T Documents, T12, page 36.
Targeted questions
In October 2023 Ms Walmsley answered a set of targeted questions at the request of the Agency, which were provided to her with the view that her responses may assist the Tribunal to make a determination in this application.
Ms Walmsley confirmed her experience completing several functional capacity assessments for people with hearing loss, although that she had no additional accreditation to recommend an assistance animal.[149]
[149] R14, page 719.
She explained that her assessment report detailed the severity of ZVTR’s hearing loss as well as the daily impact on self-care, daily tasks, community engagement and safety. She confirmed that, in regard to her recommendations she ‘looks at what a person is unable to complete currently and how the animal can assist this.’[150]
[150] R13, page 719.
With reference to clinical best practice, Ms Walmsley considered that the technology and environmental supports typically recommended for people with profound hearing loss included:
·hearing aids or implants;
·visual and/or vibration alarm systems; and
·assistance dog.
Ms Walmsley’s opinion was that AT could compliment the support of an AD but not replace the need for one.[151] Security alarms, she stated, could be used around ZVTR’s home although could be of limited benefit if ZVTR was experiencing vertigo and unable to move and respond to the alarm. Ms Walmsley considered that an AD would overcome this barrier by notifying ZVTR’s neighbours and bringing her earpieces.
[151] R13, page 724.
According to Ms Walmley’s research there were no additional devices on the market that would assist ZVTR to access the community with increased safety as ZVTR’s sense of direction and ability to distinguish different sounds was still reduced. At work, Ms Walmsley maintained that only an AD would alert ZVTR to clients being awake during an overnight sleepover shift.
Ms Walmsley confirmed that ZVTR required an ‘assistance dog’ and not a companion animal. An AD she said, is required as a direct result of ZVTR’s hearing loss. She referred to the benefits of an AD for hearing loss as discussed in a 2019 study:
‘The benefits of assistance dogs for persons with hearing impairment (hearing dogs) include a) improved ability to carry out daily tasks through the codified reporting of sounds proper of everyday life and/or of dangerous situations and b) psychosocial aspects such as companionship and sense of protection’ (Martellucci et a L., 2019).
Ms Ashlee McDowell, Director and occupational therapist, Engage Occupational Therapy
Ms McDowell is an OT of nearly 13 years and primarily experienced in prescribing types of AT for adults based on her assessment of their functional limitations. Ms McDowell was referred by Cornwall House,[152] an OT company whose primary area of practice is assistance animals on the basis the Agency advised that Ms Walmsley was not a suitable assessor to prescribe an AD.[153]
[152] Transcript of proceedings, page 43 lines 41- page 44 line 9.
[153] Transcript of proceedings, page 179 lines 44-45; page 194 lines 37-39; page 232 line 45 - page 233 line 2.
Ms McDowell was asked to provide assessment for an AD to support ZVTR in community, home, and social and economic participation. ZVTR had informed Ms McDowell that she required an AD to support her to be alerted to auditory cues that she misses in multiple environments.[154]
[154] Transcript of proceedings, page 44 lines 16-18.
On 27 January 2023 Ms McDowell assessed ZVTR in a community setting at three separate areas including a café, a social setting and a carpark[155] and subsequently completed the Assistance animal - Assessment template provided by the Agency.
[155] Transcript of proceedings, page 43 lines 14-15.
Ms McDowell’s opinion was that ZVTR needs assistance to compensate for her profound hearing loss to be able to work, live alone and engage in the community.[156] She considered that ZVTR’s functional hearing limits the majority of activities she completes on a day-to-day basis including self-care, home care, self-management, community engagement and social and economic participation.[157]
[156] T Documents, T22: Letter of Ms Ashlee McDowell, page 100.
[157] T Documents, T13: Assessment template - Assistance animal, Ms Ashlee McDowell dated 27 January 2023, page 55.
Ms McDowell explained that even with her processors ZVTR is unable to hear important sounds and alerts and that despite ZVTR’s constant vigilance, ‘there’s not compensatory strategy functioning to a level of auditory cues.’[158] Ms McDowell described ‘auditory cues’ to mean auditory information in ZVTR’s environment that she needs to attend to.[159]
[158] Transcript of proceedings, page 57 lines 22-23.
[159] Transcript of proceedings, page 75 lines 24-25.
Ms McDowell outlined the functional limitations reported to her by ZVTR as follows:[160]
[160] Transcript of proceedings, page 47.
·In the community:
oZVTR has found that she misses auditory cues whilst shopping and during appointments;
oshe also misses alarms and alerts in the community including doors opening and closing behind her, people talking to her or saying her name or calling out for her, people approaching her from out of sight and people entering her space and also ‘random events’ such as approaching shopping trolleys and people trying to yell out warnings;
oZVTR has been targeted as an easy sexual assault victim by someone who knew that she could not hear them coming towards her from behind;[161]
[161] Transcript of proceedings, page 76 lines 24-26.
owhen she travels to a location for overnight stays away from home there is no hearing loss-specific AT or evacuation plan available to her at the accommodations;[162]
[162] Transcript of proceedings, page 78 line 47 to page 79 line 7.
·At home:
oZVTR cannot wear her processors at many times, including when cooking due to the ‘intolerable’ overstimulation of sounds;
oshe misses sounds around the home including fire alarms, taps, fridge door alarms, washing machine beeping, doors opening and closing, people on the property and ‘random noises’ such as things falling down; and
oshe struggles to relax while wearing her processors although without the processors, ZVTR will experience vigilance such that her ability to engage in activities of rest, leisure and creative pursuits is compromised.
·At work:[163]
oduring daytime shifts ZVTR’s functional hearing is compromised and she is unable to be alerted to auditory cues; and
oduring overnight shifts she is not able to wear her processors and there is no opportunity for AT to be installed because she works at a client’s home.
[163] Transcript of proceedings, page 72 line 23 to page 73 line 15.
Ms McDowell’s assessment was conducted in a community setting on the basis that ZVTR’s request for an AD was primarily for support to engage in the community, which could not be achieved with AT.[164] Ms McDowell’s observation was that ZVTR was physically and cognitively able to attend to activities of daily living in the community however that there are limitations around her functional hearing that limit the effectiveness and safety within which she does those activities.[165]
[164] Transcript of proceedings, page 50 lines 1-5; page 68 line 20-24.
[165] Transcript of proceedings, page 79 lines 29-33.
At the hearing Ms McDowell clarified that ‘effectiveness’ of a support for ZVTR meant ‘being responsive, being alerted to auditory cues well, and being alerted to auditory cues quickly.’ And by ‘safely’ she meant ‘a compromise to ZVTR’s personal safety by not being alerted to the world around her.’[166]
[166] Transcript of proceedings, page 45 lines 38-41.
Ms McDowell did not consider that ZVTR’s limitations in the community would be reduced if the noise reduction features of her sound processors were utilised as suggested by the audiologist.[167] ZVTR had reported that she had optimised her hearing processors as much as she could in community environments and Ms McDowell’s observation was that ZVTR still had significant impairment.
[167] Transcript of proceedings, page 63 line 31 to page 64 line 8.
In her report Ms McDowell concluded that ZVTR required ‘an assistance animal with particular trained skills to alert to auditory cues’ that would then alert ZVTR of the auditory information.[168] She concluded that an AD would support ZVTR to live and function as independently as possible.[169]
[168] R12: Response to the respondent’s targeted questions as amended by the applicant, page 200.
[169] T Documents, T13, pages 55-59.
At the hearing Ms McDowell submitted that there is no AT for ZVTR that could replace the support of an AD in the community.[170] In respect of AT that she had considered in this funding Ms McDowell confirmed that she was aware of the following:[171]
[170] Transcript of proceedings, page 75 lines 14-15.
[171] Transcript of proceedings, page 73 line 26 to page 75 line 1.
·visual alert systems for fire alarms, water and doorbells;
·the Bellman system which provides a visual or a tactile transmitter when a doorbell, smoke alarm or alarm clock is activated;
·home automation with smart lights that flash certain colours;
·alert systems for doors opening and water flowing;
·programmable door alarm;
·telephone alert;
·doorbell with phone alert;
·watches with a tactile cue;
·smart washing machines;
·bed-shaker including a receiver and accessories; and
·security cameras in the front and rear yards of the home.

I am also satisfied that the cost is reasonable relative to the cost of alternative support taking into account the functional outcomes that can be achieved with the use of AT, support workers and other capacity-building supports. In this regard there are no comparable supports which I consider that would achieve the same outcomes at a substantially lower cost.[211]
[211] Rule 3.1(a) supports rules.
The benefits achieved
I am satisfied that an AD will mitigate the impacts of ZVTR’s impairments on her safety at home and in the community, reduce the need for other supports and increase ZVTR’s capacity for full and independent participation in the community.[212]
[212] See WRMF at [27], Reasons for Decision.
I have taken into account that ZVTR has qualified as a participant on the basis of her hearing loss and that this has since progressed to profound hearing loss. Prior to her hearing loss ZVTR historically relied on this sensory input to safely undertake her activities of daily living.
I accept that ZVTR requires further support across all activities of daily living on the basis that her processors are a partial support for 11-12 hours each day when they give her limited access to sounds with further limitations in regard to distance and quality depending on her environment and provide no support for at least 12 hours each day.
I accept Ms Kirby’s evidence as an audiologist that ZVTR’s processors cannot be worn most of the day and at these times that ZVTR has no useable hearing. On this basis I do not accept Mr Dwyer’s evidence that ZVTR’s impairment is that she is ‘hard of hearing’. Also Mr Dwyer’s submission that ‘There is no reason for ZVTR to not have her sound processors in should an emergency situation occur.’[213]
[213] R15, page 745
ZVTR further established that she cannot choose many of the times that she is unable to wear her processors including when showering, sleeping, getting dressed, brushing her hair, in the rain, when experiencing technical difficulties, during medical procedures, when experiencing pain and when she needs a break from the sensory overload of wearing them.
Ms McDowell explained that ZVTR requires support ‘for all activities that require her to process auditory information’’[214] on the basis that ZVTR is physically and cognitively able to do those tasks there are limitations around her functional hearing that limit her effectiveness and safety in undertaking them.[215]
[214] R12, page 705; see also Table of Activities, pages 705-707.
[215] Transcript of proceedings, page 73 lines 30-33.
Ms Walmsley confirmed that ZVTR requires assistance to facilitate her engagement in tasks and maintain safety as a direct result of her hearing loss because, both with and without wearing her hearing processors ZVTR cannot be alerted and respond to sounds in her environment.[216]
[216] R13, pages 727 and 729.
I consider also Ms Kirby’s evidence that ZVTR’s processors do not work like normal hearing and although they are able to give her ‘access’ to sounds they are limited in the range of sounds they can detect of around 3 metres and also what ZVTR ‘does with that sound’.
In this regard ZVTR’s evidence was that she has ‘optimised’ her processors for community access including disabling the SCAN function which impacts her ability to hear conversations and also the ForwardFocus function which makes it more difficult to hear noises from behind and beside her and increases her reliance on another person to safely access the community.[217]
[217] A01, pages 261-262.
ZVTR’s experience does not support Mr Dwyer’s recommendation that utilising certain features of her existing hearing technology would assist her in better identifying sounds and noises in the community. Further, ZVTR’s hearing range of approximately 3 metres does not support Mr Dwyer’s opinion that sounds ZVTR cannot identify in the community ‘do not pose any danger to her (on the basis that they are far away).’ [218]
[218] R15, page 746.
ZVTR confirmed that there are no footpaths in the area where she resides.[219] At the hearing Mr Dwyer acknowledged that ZVTR was at a ‘disadvantage’ as a result of her disability in this regard and stated that ideally this could be ameliorated with a combination of assistive equipment and behavioural changes albeit did not specify what kind of assistive equipment he was referring to.[220]
[219] A09; A10; A11; A12: Photographs of the applicant’s residential area.
[220] Transcript of proceedings, page 147 lines 24-27.
At home, ZVTR confirmed that she often does wear her processors when cooking however it is the noise of her rangehood that diminishes her capacity to hear any other sounds.[221] ZVTR explained that ‘because of that background noise, I struggle to hear other things when I’m doing it…so there’s also ambient noise that can be created in a house that has the same effect as out in the community.’[222]
[221] Transcript of proceedings, page 223 lines 23-28; Evidence of Mr Dwyer at [156], Reasons for Decision.
[222] Transcript of proceedings, page 222 lines 22-31.
Mr Dwyer further opined that Ms McDowell should have considered that ZVTR compensates for her hearing loss by being more cautious across all activities of daily living in addition to driving, on the basis that she is aware of her disability and therefore would tend to be more cautious. Mr Dwyer does not refer to any basis of this submission and no such observation was made in Ms McDowell’s report. At the hearing Ms McDowell further clarified that ‘vigilance is not recommended to be a long-term solution to support someone’s effectiveness and safety for all areas of their life’.[223]
[223] Transcript of proceedings, page 57 lines 9-11.
I consider that an AD trained in ‘specific tasks’ that compensate for ZVTR’s loss of hearing will support her safety and effectiveness in undertaking activities of daily living and to fully participate in society ‘in the same variety of ways as persons without a disability might choose to participate’.[224] I am therefore satisfied that an AD will be of significant benefit to ZVTR and make the following observations:
[224] See [27]; [73-80], Reasons for Decision.
·ZVTR’s impairment is not defined by any particular activity of daily living but an accumulation of restrictions across all her activities of daily living. ZVTR explained that ‘singularly all these things sound very trivial. Collectively they are a nightmare’;[225]
·an AD provides comprehensive support across all areas of ZVTR’s loss of function at home, in the community, at work and when travelling and continues to provide this support on a constant 24/7 basis. In this regard an AD maximises ZVTR’s choice and independence and is likely to improve life-stage outcomes;
·ZVTR’s safety needs at home and in the community arise due to unexpected changes in her acoustic environment, interference with her processors and in all circumstances when she is unable to wear her processors. ZVTR explained an AD is able to distinguish types of events and alert her by nudging her leg, leading her to sources of noise and in a ‘very important’ situation such as a smoke alarm drop across her feet;[226]
·an AD builds capacity to access and engage with the community as demonstrated in ZVTR’s experience that, with the support of an AD to maintain her safety and independence in the community she has been able to improve her confidence, fulfil travel aspirations and maintain meaningful employment for four years;[227]
·an AD also ameliorates the ‘strain’ that ZVTR puts on her other senses to compensate for her impairments[228] and prevents her from being able to complete tasks at home on the basis that she must constantly be vigilant for signs of intrusion and other warning sounds such as smoke alarms;[229]
·ZVTR successfully co-trained B to provide support as an AD and currently takes an active role training L in the impairment-specific tasks she requires.[230] This approach is recommended by relevant literature to mitigate the costs of training an AD[231] and was further approved by the Tribunal in Nottle:[232]
‘Ms Nottle prefers to take responsibility for the coordination of Eddie’s training and critical aspects of its implementation. It is her commitment to a continuing activity, day and night, to bring Eddie to a point where he contributes significantly to her independence and quality of life, while also involving Eddie in the life of Ms Nottle’s work colleagues, associates and friends as an active assistance animal in the community. As the owner, handler and trainer she is the recipient of the support, but also the driver of that support’;
(Tribunal emphasis)
·ZVTR’s family live in several locations both interstate and overseas. The ability to travel flexibly and spend time with her family members is a long-term benefit that will substantially improve life stage outcomes for ZVTR;[233] and
·ZVTR has trialed a substantial number of other best-practice supports including AT, support workers and Auslan.[234]
[225] Transcript of proceedings, page 177 lines 16-17.
[226] Transcript of proceedings, page 20 lines 8-12.
[227] Transcript of proceedings, page 11 lines 11-13; A01 at [52]; Rule 3.1(f), supports rules.
[228] A01, page 264; Transcript of proceedings, page 144 lines 31-40.
[229] A01, page 266.
[230] A01, pages 265 and 278.
[231] The La Trobe University School of Psychology and Public Health – Final Report to National Disability Insurance Agency: A16, ‘Review of Assistance Animal Effectiveness’ dated 20 September 2016, page 350; A17, ‘NDIS participant-trained assistance dogs’ dated 7 August 2019, page 439.
[232] Nottle and National Disability Insurance Agency [2021] AATA 1014 at [122].
[233] Rule 3.1(b) supports rules; Evidence of Ms McDowell at [147], Reasons for Decision.
[234] See AA guidelines at [35], Reasons for Decision.
The cost of alternative support
I am satisfied that the significant benefit of an AD is reasonable relative to both the benefits and costs of AT, support workers and capacity-building supports. I am not satisfied that there are any alternative supports that would help ZVTR in the same way,[235] achieve the same outcome[236] or offer a comparable level of support to an AD at a substantially lower cost.
[235] Ibid.
[236] Rule 3.1(a) supports rules.
ZVTR gave detailed evidence of her experience trialling several types of AT for the home and the community. Ms Walmsley and Ms McDowell agreed that for some alerts in the home such as door knocks AT would be a satisfactory alternative,[237] however maintained that there was no AT that would increase ZVTR’s safety in the community.[238]
[237] Transcript of proceedings, page 64 line 44 to page 65 line 2.
[238] See [133-134], Reasons for Decision; Transcript of proceedings, page 48 lines 34-35.
I consider the Agency’s submission that the purpose of the NDIS Act is ‘to enable people with disabilities to live as normal a life as possible having regard to their disability’[239] and also the Court’s finding in McGarrigle that reasonable and necessary should enable and empower a person with a disability to do things.[240]
[239] See [49], Reasons for Decision.
[240] At [41]; Also [26], Reasons for Decision.
I cannot be satisfied on the evidence that AT will enable ZVTR to access the community safely or provide her with any comparable benefit for social interaction, work and travel compared to that of an AD. [241] Ms McDowell explained as follows:[242]
‘these Assistive Technology options are only suitable for persons who frequent the same locations. For example, a person who only requires AT devices at their home or workplace. AT solutions are not appropriate for people who engage in multiple locations, such as those who work in multiple places, travel, visit family etc.’
[241] At paragraph 8.3.1, access guidelines.
[242] R12, page 708.
ZVTR maintained that the only comparable support to an AD was a support worker[243] and explained that she cannot ’passively listen’[244] for alerts and therefore requires something to actively alert her in real time. The efficacy of AT relies on her noticing that alert whereas an AD is trained to persevere until she both notices and addresses the alert.[245]
[243] T Documents, T19, page 92.
[244] Transcript of proceedings, page 143 line19.
[245] R12, page 710.
Mr Dwyer supported a recommendation of AT and also therapeutic input to support ZVTR in the community. In regard to Mr Dwyer’s comments I note the following:
·ZVTR has been able to travel, work as a support worker, work in an office by herself, stay any night outside of the home and visit her mother, children and brother by relying on either an AD or a support worker. ZVTR has required this support for at least four years and it is not a ‘spontaneous’ need;[246]
·ZVTR’s ability to drive independently is not an indication of her functional capacity in other tasks of daily living. I refer to Mr Dwyer’s evidence that ‘that’s what paints the picture for me, a person who can get in a car and drive and go to work, that tells me there’s a level of function that is functional and therefore probably workable in the longer term’;[247]
·There is no evidence that ZVTR’s employment is an ‘unsatisfactory’ arrangement on the basis that she needs an AD to alert her on overnight shifts;[248]
·Further in keeping with the objects and guiding principles of the NDIS Act I do not accept, in response to how a lanyard would assist ZVTR with people approaching from behind Mr Dwyer’s statement that ‘you can wear something on your back just as easily as you could wear something on your front’;[249] and
·In the event that ZVTR is unable to ‘completely regain independent functioning’ through AT alone then an OT could come up with some alternate techniques and strategies or ways to go about a task that will enable task completion.[250] Mr Dwyer qualified that ‘we always angle for the participation in a task that causes the least amount of aggravation of symptoms’ which he considered that ZVTR referred to as ‘hypervigilance’ and I also accept Mr Dwyer’s evidence that it was simply ‘not possible’ that ZVTR’s impairment could ever be corrected.[251] Mr Dwyer did not provide any further information in regard to therapeutic input that could assist the Tribunal in considering the cost or benefit of this as a support for the purposes of this review.
[246] See [157-158], Reasons for Decision.
[247] Transcript of proceedings, page 144 lines 5-8; [195], Reasons for Decision,
[248] See also section 4(4) NDIS Act: ‘People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals’.
[249] Transcript of proceedings, page 131 lines 19-20.
[250] Transcript of proceedings, page 144 lines 33-40.
[251] Transcript of proceedings, page 143 lines 29-32.
The costs of AT have not been ascertained with precision by the Agency in the absence of ‘a substantial in-home assessment and functional AT assessment’[252] and I accept Mr Dwyer’s estimated cost of $1110.30 on the basis that ZVTR already has most of the AT known to Mr Dwyer installed at her home.
[252] Transcript of proceedings, page 260 line 44-46.
I also accept the evidence of Ms Walmsley and Ms McDowell that in the absence of an AD support workers would be required in addition to AT. ZVTR’s evidence was that in recent months her support worker costs for overnight stays alone cost the Agency a total of $5,720.00.[253]
[253] $5,200.00 + $520.00: See [112], Reasons for Decision; A01, page 220; R13, pages 726-727.
Mr Dwyer considered that the potential cost of support workers had been grossly exaggerated on the basis that ‘ZVTR already has her dog L for accompaniment, and this situation is expected to continue regardless of the outcome of the current dispute’.[254] The scheme is intended to fund supports that are reasonable and necessary and this does not exclude a support simply because an applicant has already funded that support. I refer to the matter of PBZB and National Disability Insurance Agency [2023] AATA 3385 as follows:[255]
‘Although the Tribunal cannot order reimbursement, … the Tribunal does have power to determine that a support is reasonable and necessary in any SOPS it has jurisdiction to review, including a past SOPS. Pursuant to s 39 of the [NDIS] Act, the Agency must comply with the SOPS in a plan. Accordingly, if the Tribunal finds a support is reasonable and necessary, and a participant can sufficiently demonstrate that they have expended personal funds relating to the acquisition of that support, then the Agency is required to reimburse that participant. What evidence the Agency considers is necessary to provide reimbursement is solely a matter for itself and its auditors. That is, if through the appeals process, the Tribunal determines that in the past, a support was reasonable and necessary, then the National Disability Insurance Agency (NDIA) should reimburse the participant for any out-of-pocket expenses they have incurred to purchase that reasonable and necessary support.’
[254] R15, page 750.
[255] At [37].
I further refer to the matter of HTDD and National Disability Insurance Agency [2024] AATA 725:[256]
‘The measure of whether a participant requires person-to-person supports is not to be based upon the historical level of support and assistance provided to them. Further, and in any event, the Scheme was established to provide such supports to people with disability that had not or were not already being provided or accessed.’
[256] At [206]; See also section 4(5) NDIS Act.
Adding the estimated cost of AT (and not any relevant assessment, training or upgrades[257]) and only the support worker hours that ZVTR has actually used in relation to travel in the last year comes to a total of $6830.30 and I do not consider this amount is any less than $6632.00.[258]
Section 34(1)(d): Will an assistance animal be, or is it likely to be, effective and beneficial for ZVTR having regard to current good practice
[257] R15, page 743: Mr Dwyer stated that specialist AT ‘should be accompanied by dedicated training on safe use by an OT. Provision should be made for regular occupational therapy reviews to ensure ongoing safe use of technology, together with the opportunity to update technology as this may be required from time to time.’
[258] See [180], Reasons for Decision.
I am satisfied that an AD trained in ZVTR’s impairment-specific tasks[259] will be effective and beneficial with regard to current good practice. I refer to the three OT assessments undertaken and seven subsequent reports[260] of ZVTR’s functional capacity and consider that comprehensive professional opinion has been made for recommended supports in this regard.
[259]T Documents, T22, page 100; A01 at [16] and [29]; A02; A16, page 349.
[260] T Documents: T12, T13, T22; R12; R13; R15; R17.
I am satisfied that L is already trained across three tasks that clearly mitigate the impact of ZVTR’s impairments[261] and has acceptable behaviour and hygiene[262] and therefore meets the definition of an AA under the AA guidelines,[263] the Assistance Dogs International minimum standards[264] and the Disability Discrimination Act.[265]
[261] Transcript of proceedings, page 21 lines 6-17; A14: Video of L shutting the fridge door; A15: Video of L alerting to a smoke alarm.
[262] Transcript of proceedings, page 21 lines 20-21; T Documents, T10: Letter of Dr John Rigley, veterinarian dated 29 January 2023; T17: Trainer assessment report date 24 February 2023.
[263] AA guidelines at [34], Reason for Decision.
[264] A16, page 409.
[265] Section 9(2)(c).
I do not accept that L is a companion animal[266] or that one would be effective or beneficial for ZVTR. It is uncontentious that ZVTR already had B as a pet prior to her profound hearing loss and I am satisfied that it was only as a result of the total loss of her hearing that ZVTR had B assessed and trained to become an AD and also subsequently purchased L as a replacement AD.
[266] AA guidelines at [37], Reasons for Decision.

I accept that an AD will be effective for ZVTR, who is unable to ’passively listen’[267] and therefore requires support to be alerted to both planned and unplanned cues on a 24/7 basis. I further accept that an AD is of significant benefit to ZVTR in the context of enabling her to undertake daily living activities, build her capacity and support her independence in the long-term and will also reduce costs of other supports for ZVTR including support workers and AT.
[267] Transcript of proceedings, page 143 line19.
In-home assessment
The Agency submitted that the Tribunal cannot make an objective assessment of whether the requested support is reasonable and necessary within the meaning of section 34(1)(c) without the comprehensive in-home assessment recommended by Mr Dwyer.[268]
[268] Transcript of proceedings, page 260 lines 34-37; lines 42-46.
The Agency relied on section 33(5)(b) of the NDIS Act[269] as well as relevant case law[270] to emphasise their contention that without the in-home assessment the Tribunal cannot be satisfied that ZVTR has fully tried best practice supports to address her functional limits, and therefore cannot be satisfied that the requested support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice within section 34(1)(d) of the NDIS Act.[271]
[269] ‘In deciding whether or not to approve a statement of participant supports…the CEO must have regard to relevant assessments conducted in relation to the participant’.
[270] NJSC at [105-106]; Charrington and National Disability Insurance Agency [2022] AATA at [57].
[271] R01 at [54].
Notwithstanding that ZVTR has not objected to an in-home assessment the Agency has decided not to undertake such an assessment[272] despite requesting Mr Dwyer’s respective quote on an ‘urgent basis’ in March 2024.[273] On 3 April 2024 the Agency provided the following reasons:
The orders sought by the Respondent at the hearing is to include in your new plan funding for an assessment of your home environment to determine suitable assistive technology. These are orders sought in support of the Respondent’s contentions that there are comparable cost effective and beneficial supports to those being sought in this application. As such, the Respondent is not proposing to arrange an assessment to be undertaken. However, should you wish to access funding for an assistive technology assessment of your home now, the Respondent proposes that it can be done by way of a section 48 review of your plan, which can include funding for an assistive technology assessment of your home. Alternatively, we will issue a new plan to include this funding once the AAT matter is finalised.
[272] R20: Email from the Agency to ZVTR dated 3 April 2024, page 814.
[273] R18, Letter from the Agency to Mr Dwyer dated 8 March 2024, page 808.
The Agency’s submission is that the in-home assessment is required for the Tribunal’s satisfaction in determining the substantive issue of this review. Yet the Agency has decided not to provide the Tribunal with the very information they rely on to support their contentions despite having sufficient opportunity to do so.
In these circumstances the Tribunal has, according to the Agency been deprived of the information necessary to make a determination of the issues in dispute, in particular section 34(1)(c) and (d) of the NDIS Act and is therefore only able to defer a substantive decision by ordering further assessment.
I consider that the Agency’s decision not to conduct the in-home assessment disregards the Tribunal’s review process and refer to the Administrative Appeals Tribunal Act 1975 (Cth) as follows:
2ATribunal’s objective
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a)is accessible; and
(b)is fair, just, economical, informal and quick; and
(c)is proportionate to the importance and complexity of the matter; and
(d)promotes public trust and confidence in the decision‑making of the Tribunal.
33Procedure of Tribunal
Decision maker must assist Tribunal
(1AA) In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding.
Parties etc. must assist Tribunal
(1AB) A party to a proceeding before the Tribunal, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A.
I refer also to the Agency’s model litigant obligations to ZVTR, to not cause unnecessary delays in progressing an AAT application and seek to resolve it, whether in whole or in part, and also their obligations to assist the AAT in making the correct and preferable decision.[274]
[274] NDIS – Our model litigant guidelines, page 1.
Notwithstanding the absence of an in-home AT assessment, for the reasons discussed above I am satisfied that the current assessment of ZVTR’s functional capacity and subsequent recommendations is comprehensive for the purpose of the Tribunal’s determination of this review, noting in particular that ZVTR’s application is primarily for support to access the community and it is when accessing the community that ZVTR is most at risk and requires appropriate support for her impairments.
I have also considered rule 3.2 and 3.3 of the supports rules and the AA guidelines and am satisfied that ZVTR has comprehensively trialled an AD as well as AT in the context of best practice. With respect to the values of the NDIS Act[275] and relevant case law,[276] an AD will fulfil ZVTR’s needs in the context of her impairments so as to facilitate her independence, inclusion and participation in the community.
Section 35: Is the requested support excluded from being funded by rule 5.1 and 5.2 of the supports rules
[275] See [14] and [15], Reasons for Decision.
[276] See [21] and [24], Reasons for Decision.
On the basis that L is a reasonable and necessary support for ZVTR I am satisfied that the costs to purchase and train L to become an AD, including the initial PAT are related to ZVTR’s disability. I refer to the Agency’s submission at [60] above comparing these costs to the training and registration of a support worker with ‘significant unintended consequences’[277] that ‘support workers would then stick their hand out’ for the Agency to provide this funding.[278]
[277] Respondent’s closing submissions at [62].
[278] Transcript of proceedings, page 623 lines 18-20.
I do not accept that funding for a support worker is comparable to the investment of an AD.[279] An AD is a specified capital support in a participant’s plan[280] that is purchased for and trained specifically in the needs of a particular participant. The costs to train and maintain a participant’s AD can also be included by a provider in the purchase cost of the AD, which is indisputably capable of being funded in a plan.
[279] See [181], Reasons for Decision.
[280] AA guidelines, page 20: ‘We’ll include the support in your Capital - Assistive technology budget’.
In regard to ongoing maintenance costs I refer to the AA guidelines as follows:[281]
We’ll only include support for an assistance animal that’s fully trained and qualified. We don’t fund these costs while the animal is being trained. It’s the provider’s responsibility to cover these costs. Or they could include them in the cost of buying or leasing the assistance animal.
[281] At page 22; See also [36-37], Reasons for Decision.
The AA guidelines clearly contemplate that the costs incurred for maintaining an AD are capable of being funded in a plan on the proviso that the funding is applied to an AD and not an animal in the process of becoming an AD. In respect to an approved AD, funding for maintenance until the point of purchase would be included in the purchase price and then ongoing maintenance costs funded in the core supports budget thereafter.[282]
[282] AA guidelines, page 22: ‘The average funding for maintenance costs is around of $2,725.00 per year. We’ll fund this in your Core – Consumables budget.’
I consider that ZVTR has accepted the risk of L not successfully being trained as an AD in taking on the costs of purchase, training and maintenance and that L is now an AD capable of being approved as a reasonable and necessary support including funding for all reasonable and necessary costs expended to reach that point.
I am satisfied that the training costs including the PAT for L to become an AD were reasonably and necessarily incurred and that future maintenance costs are capable of being funded by the Agency on the basis that they are ancillary to L being included in ZVTR’s plan as a reasonable and necessary support.[283]
[283] Rule 5.2(1)(b).

DECISION

Pursuant to section 43(1)(c)(ii) of the Administrative Appeals Act 1975 (Cth), the decision under review is set aside and remitted to the Agency for reconsideration in accordance with the direction that:
(a)Funding for the acquisition, training (including initial PAT) and ongoing maintenance of the hearing assistance dog L from the date of purchase on 18 November 2022 is a reasonable and necessary support in relation to the statement of supports in ZVTR’s plan dated 15 March 2023 as reassessed on 11 January 2024 and 19 June 2024; and
(b)The reassessment date will be the day 12 months from the date that the reasonable and necessary supports at (a) above are included in ZVTR’s statement of participant supports.

I certify I certify that the preceding 228 (two-hundred and twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Member S Smith

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

Associate
26 July 2024

Applicant:

ZVTR

(Self-represented)

Counsel for Respondent:

Mr Philip Nolan

Solicitor for Respondent:

Ms Nameeta Chandra

(Moray & Agnew Lawyers)

Dates of hearing:

22 and 23 May 2024

Date final submissions received:

14 June 2024

Applicant:	ZVTR (Self-represented)
Counsel for Respondent:	Mr Philip Nolan
Solicitor for Respondent:	Ms Nameeta Chandra (Moray & Agnew Lawyers)
Dates of hearing:	22 and 23 May 2024
Date final submissions received:	14 June 2024