ZYWY and National Disability Insurance Agency - [2024] AATA 1147

ZYWY and National Disability Insurance Agency [2024] AATA 1147 (30 April 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/3332
Re:ZYWY
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:30 April 2024
Place:Canberra

The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
...[SGD].........................................................
Member W Frost
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – definition of reasonable and necessary – applicant has multiple psychological and physical impairments – one support in dispute – whether to fund the provision and installation of large signage at the entrance of the applicant’s regional property – whether the support is likely to be effective and beneficial – not possible to predict the effect of the proposed signage – effectiveness and benefits of the requested supports unknown and speculative – resolution of dispute a significant factor in reducing the applicant’s anxiety – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act1975 (Cth) s 37
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 9, 17A, 21, 24, 25, 28, 29, 30, 32, 33, 34, 100, 209
National Disability Insurance Scheme (Supports for Participants) Rules 2013
CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF (2020) 276 FCR 415
REASONS FOR DECISION
Member W Frost
30 April 2024
INTRODUCTION

The Applicant, ZYWY, is a 61-year-old participant in the National Disability Insurance Scheme (NDIS), with multiple psychological and physical impairments.[1] In 2022, the National Disability Insurance Agency (NDIA) approved a statement of participant supports for ZYWY under the National Disability Insurance Scheme Act 2013 (NDIS Act), with total funded support of $52,950.58 over a 15-month period.[2]
[1] Exhibit 1, pages 2 and 10.
[2] Ibid., pages 9-17 and 340-352.
Later that year, following ZYWY’s requested review, a delegate of the Chief Executive Officer (CEO) of the NDIA made a decision under subsection 100(6) of the NDIS Act affirming its decision declining to fund additional supports requested by ZYWY.[3] He subsequently applied to the Administrative Appeals Tribunal (Tribunal) for review of the NDIA’s decision.[4] Ultimately, the sole remaining support in dispute in these proceedings was ZYWY’s request for the NDIA to fund the provision and installation of large signage at the entrance of his large residential property in regional Victoria. The proposed ‘signage package’ would alert people to not enter the premises, and the consequences of doing so, and also provide guidance on how to seek entrance to the property without causing potential issues for ZYWY or the entrant.
[3] Ibid., pages 18-25, 46-53 and 71-76.
[4] Ibid., pages 1-7.
The Tribunal has considered all documents filed in this proceeding, including those provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), together with the parties’ submissions.[5] For the following reasons, the Tribunal affirms the decision under review. ZYWY’s application to the Tribunal is therefore unsuccessful.
[5] Exhibits 1-17.
ISSUE
The issue for determination by the Tribunal in these proceedings was whether the requested support, being funding for the provision and installation of signage, is ‘reasonable and necessary’, pursuant to section 34 of the NDIS Act, and should be included in the statement of participant supports in ZYWY’s NDIS plan.
LEGISLATIVE INSTRUMENTS
The NDIS Act
The objects of the NDIS Act, set out in section 3, include to:
(a) in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
(b) provide for the National Disability Insurance Scheme in Australia; and
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme; and
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
(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; and
(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and
(h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability…
Subsection3(3) of the NDIS Act provides that, in giving effect to the objects of the NDIS Act, regard is to be had both to the need to ensure the financial sustainability of the NDIS, and to the provision of services by other agencies, departments or organisations, as well as the need for interaction between the provision of mainstream services and the provision of supports under the NDIS.
Section 4 of the NDIS Act sets out the general principles guiding actions under the legislation, including that:
(1)People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
(2)People with disability should be supported to participate in and contribute to social and economic life.
(3)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.
(4)People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5)People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
…
(8)People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives.
…
(10)People with disability should have their privacy and dignity respected.
(11)Reasonable and necessary supports for people with disability should:
(a)support people with disability to pursue their goals and maximise their independence; and
(b)support people with disability to live independently and to be included in the community as fully participating citizens; and
(c)develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
Subsection 4(17) of the NDIS Act also provides that:
It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to the need to ensure the financial sustainability of the National Disability Insurance Scheme.
Section 17A of the NDIS Act sets out additional principles which the CEO of the NDIA must have regard to in relation to the participation of people with disability.
Under section 9 of the NDIS Act, ‘participant’ means ‘a person who is a participant in the National Disability Insurance Scheme (see sections 28, 29, and 30)’.
Section 32 of the NDIS Act provides that if a person becomes a participant in the NDIS, the CEO of the NDIA must facilitate the preparation of the participant’s plan, and this is to occur within 21 days of the person becoming an NDIS participant. Subsection 33(2)(b) of the NDIS Act requires a participant’s plan to include a statement, being the ‘statement of participant supports’, prepared with the participant and approved by the CEO of the NDIA, that specifies (amongst other things) ‘the reasonable and necessary supports (if any) that will be funded’ under the NDIS.
Subsection 33(5) of the NDIS Act stipulates that in deciding whether or not to approve a statement of participant supports under subsection (2), the CEO of the NDIA or, in this proceeding, the Tribunal, must:
(a)   have regard to the participant’s statement of goals and aspirations; and
(b)   have regard to relevant assessments conducted in relation to the participant; and
(c)   be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d)   apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e)   have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f)    have regard to the operation and effectiveness of any previous plans of the participant.
The criteria in section 34 of the NDIS Act set out what supports will be provided to an NDIS participant, as follows:
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i)as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
In McGarrigle v National Disability Insurance Agency [2017] FCA 308, Mortimer J (as her Honour then was) observed that:[6]
Although the phrase “reasonable and necessary supports” is used throughout the legislative scheme, including in the objects and principles provisions, it is not defined. Its meaning can be derived from the context in which it is used, especially 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.
...
The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) to (7) constrain the rule-making power to preserve the federal characteristics of the NDIS. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the 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, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.
…
In my opinion, the text and context of s 33(5)(c), read with s 34(1) indicates that the CEO (or the delegate or Tribunal) must either be satisfied that a support has the character of being a reasonable and necessary support, or that it does not. Once a support is identified and described (to take an example away from this case, speech therapy lessons three times a week), then the question for the CEO (or the delegate or Tribunal) is whether she or he is satisfied that support, as identified, is reasonable and necessary for that particular participant. It may be open to the CEO to be satisfied that a differently identified support is reasonable and necessary: in this example, speech therapy lessons once a week. That determination can only be made on the basis of probative evidence.
[6] At [41]-[43] and [93].
As the Full Federal Court of Australia explained in National Disability Insurance Agency v WRMF (2020) 276 FCR 415 at [201]:
The matters set out in s 34(1) are more than mandatory considerations, because in terms s 34 requires that a decision-maker be positively satisfied about each matter. They are more in the nature of criteria of which the decisions-maker (CEO, delegate or Tribunal) must be satisfied on the material. That satisfaction must be reasonably and rationally formed, not taking into account irrelevant considerations, and taking into account any relevant considerations, but otherwise it is for the decision-maker to form the requisite state of satisfaction on the given material.
NDIS (Supports for Participants) Rules 2013
Pursuant to subsection 209(1) of the NDIS Act, the Minister may, by legislative instrument, make rules regarding the NDIS. Subsection 34(2) of the NDIS Act authorises NDIS rules to 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)’ in section 34. Such rules include the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports Rules), which relate to the assessment and determination of the reasonable and necessary supports that will be funded for participants under the NDIS. The CEO of the NDIA, or here the Tribunal, is bound to apply any NDIS rules, pursuant to subsection 33(5)(d) of the NDIS Act.
Rule 1.3 of the Supports Rules, in line with subsection3(3) of the NDIS Act, provides that in giving effect to the objects set out in the Supports Rules, ‘regard is to be had to the need to ensure the financial sustainability of the NDIS’. Additionally, rule 2.5 of the Supports Rules states that in administering the NDIS and in approving each plan, ‘the CEO must have regard to [the] objects and principles of the Act including the need to ensure the financial sustainability of the NDIS and the principles relating to plans’.
Part 3 of the Supports Rules provides guidance for assessing whether supports meet the criteria in subsection 34(1) of the NDIS Act to be found to be ‘reasonable and necessary supports’ that will be funded by the NDIA.
Rules 3.2 and 3.3 of the Supports Rules relate to the ‘effective and beneficial’ criterion in subsection 34(1)(d) of the NDIS Act, and provide that:
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.
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.
Rules 5.1 and 5.2 of the Supports Rules set out general criteria for whether supports are reasonable and necessary, as follows:
A support will not be provided or funded under the NDIS if:
(a)   it is likely to cause harm to the participant or pose a risk to others; or
(b)   it is not related to the participant’s disability; or
(c)   it duplicates other supports delivered under alternative funding through the NDIS; or
(d)   it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a)   additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b)   costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
EVIDENCE
ZYWY
The Tribunal has considered ZYWY’s submissions and his Statement of Lived Experience dated 11 February 2024, which relevantly stated as follows in relation to the requested support:[7]
The extra supports I am requesting funding for are a one off cost which will not need to be repeated and that is the erection of signage on my property and in future an electric remote opening gate with an intercom. The major reason for this need is directly related to all of my disabilities. Those being my extreme anxiety and startle response, my chronic whole body pain & fatigue that comes with it. If people come unannounced onto my property I fear may lash out at them automatically due to my chronic startle response issues. Because of my disability of having chronic pain the need to walk down my long driveway and back uphill to home is extremely exhausting & painful when pain is most severe. On my worst days if I need to go down and let someone in the gate and can ruin any other activities for the day & interfere with sleep also. Because of my extreme anxiety and fear of being startled I need to have means to admit people safely to my property with a minimum of stress upon me & to keep probability of startle incidents to a minimum. This could be assisted in future by having an automatic gate with an intercom at an intermediate driveway point, closer to my home than the property boundary at end of driveway, but Right now prominent well placed signage at the property entrance would negate my need to keep the front gate locked, facilitate entry of legitimate visitors to proceed to the existing intermediate gate & negate my inherent difficulty of exiting the vehicle each time I enter or leave the property & also negate the taxing & exhausting impositions upon me when I am particularly unwell to address my dependence on others to open or close or gain access via the front gate correctly (ref to separate document titled “ Further Explanation of Signage”- 12/2/2024).
The support of the signage now and in future remote opening gate with intercom e will facilitate increase in my participation in the community as I will be less anxious and less fatigued and therefore be more able to engage in activities both inside & outside my home with or without my support worker.
I feel that this support is definitely value for money for the NDIS as it is a one off cost to them so once granted will not need to be repeated in further plans and will significantly lower my anxiety, my need for pain killing medication and will increase my ability to achieve my goals of interacting more in community & social activities outside of my home.
This support request of signage and later a gate and intercom does not duplicate any of my other funding and is a one off cost which is minimal.
Overall my day to day life is up and down with pain, fatigue and anxiety. I believe that appropriate signage would definitely help to reduce my pain, fatigue and anxiety by giving me greater peace of mind and also reducing the pain and fatigue caused by lengthy trips up and down to the front gate to admit visitors regardless of what kind of day I might be having. By reducing my fatigue, pain and anxiety I would be functioning better overall and therefore be much more able to fulfill my goals as I would be more relaxed and have more energy to expend on community & other activities.
Without my disabilities I would have no need for this signage. [emphasis and errors in original]
[7] Exhibit 3.

The Tribunal has also considered ZYWY’s ‘Further Explanation of Signage’ document dated 12 February 2024, which stated that:[8]
Since 2007 I have kept my front gate locked for safety of myself & others to minimise risk of startle response incidents occurring to ensure as much as possible that people do not come to the near vicinity of my house or immediate surrounds without my knowledge or expectation. I later resorted to rudimentary signage as it is sometimes necessary to leave the front gate unlocked or even open to allow certain parties entry.
Unlocking or opening the front gate without adequate signage in place, paves the way for any person to enter & keeping the gate locked by default causes additional problems & stresses upon me also as I attempt to explain below.
The current rudimentary signage is merely A4 size requires constant replacement & is simply not large enough to be noticed by many people on entering the property, particularly when at the front boundary fence persons are usually more concerned about getting the rear of their vehicle off the busy road than reading small signs at entrance.
…
The distance between my house & the intermediate gate os approximately 40 to 50 metres & is quite flat & easy to navigate. The distance via driveway to front gate from the houseeI have never measured but I estimate 100m or possibly more. Between the intermediate gate & the front gate there is quite a steep incline. On days when my pain is minimal it is not such a huge obstacle to navigate on foot but when i am suffering severe pain most it is massive. Of course to drive that distance in car on really bad days I have to suffer the pain of climbing in & out of the vehicle additionally to navigate the intermediate gate also.
There is are overhead powerline & Telstra (underground cables) at front of property running parallel with the road. The Power company… have lawful authority to access their easement whenever they wish or need to, which does not affect me in the least provided they stay on the easement. They have a padlock on my front gate part to facilitate their entry as needed. Part of the signage package i seek is to provide instructions to both Telstra & the power company how to approach the house safely if they should have need to contact me in that manner, rather than leaving matters to chance & their assumption they can just hop over the fence & approach the front door. On the wrong day the consequences of that could be quite disastrous. Problems do arise with [the power company] sometimes when they lock the gate as the leave on several occassions I have had to call them & arrange to meet them at the front gate to explain to them how to have them refit their padlock so it does not interfere with my own & other’s ability to unlock the chain. It is not something that can be explained over phone & that is a stressful imposition I could frankly do without, it always seems to occur when i am in massive pain – possibly a coincidence or maybe because they elect to meet me at end of day when i am in dire straights anyway.
When i am in my worst state – which is can be often – am forced to rely on others to open or close the front gate on my behalf. In addition to the [power company’s] lock I have a two padlock system on the chain- a keyed lock for use of myself . my support worker & & selected others & for less frequent but trusted semi regular visitors a combination padlock also the two locks must be linked together for the system to work properly if either lock is locked directly to the chain bypassing the other then not everybody can get in or out [errors in original]
[8] Exhibit 4.
Dr Annie Thomas – Psychologist
The Tribunal has considered the various letters from ZYWY’s treating psychologist, Dr Thomas, in this proceeding.[9] Dr Thomas’ letter dated 7 June 2021 relevantly stated that:[10]
[9] Exhibit 1, pages 56-59, 64, 85-88, 222-227; and Exhibit 5.
[10] Exhibit 1, pages 56-59.
[ZYWY] has had extensive engagement with a variety of mental health professionals for several decades. He has been diagnosed in the past with bi-polar mood disorder, generalised anxiety disorder, depression, adjustment disorder, agoraphobia, panic disorder and has been noted to exhibit some symptoms of post-traumatic stress disorder. In the past 14 months, I have observed symptoms consistent with the following diagnoses:
·Major depressive disorder
·Generalised anxiety disorder
·Agoraphobia
Additionally, [ZYWY] exhibits some symptoms of post-traumatic stress disorder; hypervigilance, exaggerated startle response, distress when thinking or talking about various traumatic experiences and avoidance of same, and anger. [ZYWY] does not meet enough diagnostic criteria to warrant a formal diagnosis of post-traumatic stress disorder. However, his trauma symptoms are nonetheless prominent and debilitating.
[ZYWY] is also exhibiting several traits associated with hoarding disorder. He has accumulated a substantial quantity of items over a twenty-year period that fill large areas of his home and a large shed. [ZYWY] becomes highly anxious at the thought of discarding any items and is significantly emotionally attached to these.
I have also queried whether [ZYWY] exhibits some traits consistent with a diagnosis of autism spectrum disorder (ASD). [ZYWY] often struggles to maintain eye contact when speaking, oftentimes rocks back and forward in session when stressed, is hypersensitive to light and noise and struggles with the more nuanced elements of communication and social engagement. This prevents [ZYWY] from gauging the mood in a room at times and he sometimes struggles to understand when he might be perceived as ‘overbearing’ to others. I have spoken to two of [ZYWY’s] sisters about any childhood traits that might be consistent with ASD however they did not think [ZYWY] was especially different or lacking in communication and social skills as a young child. I do think [ZYWY] exhibits a range of traits suggestive of ASD however in the absence of a specialist assessment it is difficult to be definitive about this.
[ZYWY] also suffers chronic back pain, and this is debilitating for him a lot of the time. [ZYWY] is reliant of a variety of psychiatric medications to manage anxiety as well as pain relief medication. Since I have worked with [ZYWY], I have noted his struggle to find the right dose of medications to reduce various psychological and physical symptoms while maximising his cognitive functioning. [ZYWY] struggles with a range of side effects as a result of regular medication changes or adjustments and this causes him significant suffering also.
[ZYWY] has been extremely psychiatrically unwell and is likely to remain so for the foreseeable future. Our sessions have had the following focus for the past 14 months:
·     Detailed assessment and clinical formulation to better understand the complexity of psychiatric issues. [ZYWY] has suffered a range of significant traumas in the past 30 years that have resulted in his complex psychiatric presentation. More recently, [ZYWY] was involved in an altercation at [a local hospital] where he sought urgent psychiatric assistance after running out of his mood stabilisers. ...
·     Reduction of traumatic symptoms with eye movement de-sensitisation and reprocessing (EMDR).
·     Anxiety and depression management through evidence based cognitive behavioural strategies.
·     Cognitive restructuring work to challenge a range of beliefs [ZYWY] holds about himself and the world that maintain his anxiety and depression.
·     Systematic desensitisation work to reduce agoraphobic symptoms.
Work with [ZYWY] has been slow and steady. He has attended the majority of his sessions via Zoom as he is sensitive to sudden noises associated with my rooms such as outside traffic. These sessions have usually also involved support worker…[this support worker] supports [ZYWY] in maximising his time in sessions as well as after sessions in terms of putting strategies into practice.
There has been incremental change. When I first met [ZYWY], he was often prone to extended outbursts of rage directed at a range of people and organisations that he felt had victimised him over 30 years. These outbursts could last for most of the session and be provoked by something as seemingly innocuous as a Telstra cold caller. I do believe [ZYWY] was exhibiting trauma symptoms during this time. In addition, [ZYWY] was quite uncontained in his communication with me outside of sessions and would send e-mails that ran sometimes to 6-7 pages that were tangential and angry. None of this was ever directed at myself. These behaviours have ceased. [ZYWY] responded to my setting down clear boundaries. Additionally, [ZYWY] was able to view the footage of the altercation at [the local hospital] and became aware that his perception of what occurred was different to the events that unfolded. [ZYWY] is an intelligent man and he reflected on this disparity deeply. I believe this proved to be a turning point in his capacity to engage more fully in a consideration of how he himself can make change.
[ZYWY] has noted that EMDR has provided some relief in terms of his trauma symptoms in that he is less distressed and triggered when he thinks of the memories we have processed to date. There are dozens of memories that require address with EMDR, and [ZYWY] has a complex network of interrelated traumas that will take some time to work through. [ZYWY’s] traumatic experiences have created chronic anxiety, panic and depression and he became increasingly more fearful of others and withdrew from the community to the point that he developed agoraphobia. The EMDR work has been provided to assist in traumatic symptom reduction but also to reduce triggering in the community, a significant barrier to his goal of greater community engagement. Parallel to EMDR, we have been working on a systematic desensitisation to [ZYWY’s] fear of the community by identifying least anxiety provoking situations outside of home to the most anxiety provoking situations. Consistency is key here and [ZYWY’s support worker] encourages [ZYWY] to go out regularly with her and practice anxiety management strategies when he is out according to a graded scale of anxiety provoking situations.
Dr Thomas’ letter dated 17 May 2022, relevantly stated as follows:[11]
I understand that a request for funding to erect signage on [ZYWY’s] property gates has been rejected. [ZYWY] has suffered chronic and severe traumatic stress over an extended period of time due to the imposition of two large corporations … on or near his property. Much of [ZYWY’s] severe anxiety and depression has stemmed from this sustained trauma over many years… activities that were set up next to [ZYWY’s] home left him suffering excessive noise pollution to the point that he was never able to sleep and left him excessively sensitive to sudden or loud noises. [ZYWY] and his family were also embroiled in lengthy legal battles … that resulted in a compulsory acquisition of the family property. Both these experiences have left [ZYWY] highly sensitive to any form of uninvited entry onto his property. This also extends to unsolicited phone calls. [ZYWY] becomes triggered by people entering his property during the normal course of the day such as meter readers or telecommunications representatives, or even random members of the public, and he can at times experience an exaggerated startle or rage response that is a consequence of trauma. [ZYWY] has requested on several occasions to have proper professional signage erected near his entry gates to alert people not to enter his premises. Makeshift signage tends to deteriorate quickly and has not been successful as it is small and does not appear to act as an effective deterrent all the time.
[11] Exhibit 1, pages 85-88.
Dr Thomas’ letter of 9 September 2022 relevantly stated that the signage was ‘designed to prevent unwanted visitors from entering ZYWY’s premises’ and that:[12]
[ZYWY’s] rage responses have settled significantly as a result of EMDR with respect to unsolicited telephone calls however he is still highly sensitive to unsolicited entry onto his premises. Exaggerated startle responses can occur very rapidly and form part of an elevated tendency toward fight and flight that is common in individuals who have experienced sustained trauma or who suffer from generalised anxiety disorder. [ZYWY] reports frequent experiencing of exaggerated startle responses or other symptoms of fight and flight such as hyper vigilance since late 2007…. [ZYWY] does report “good days” however he can be triggered into a trauma reaction quite rapidly and his ability to cope with these reactions both at home and in public fosters confinement to his premises. [ZYWY] reports being generally much calmer most of the time when he is home alone with his animals and as such appreciates his time alone at home.
[12] Exhibit 1, pages 222-227.
Dr Thomas’ letter dated 26 January 2024 stated the following in relation to the requested support:[13]
having durable and professional looking signage would provide [ZYWY] with a different level of comfort or sense of security as he constantly worries about uninvited people on his property and the impermanent nature of makeshift signage. His concerns are twofold. First, he is concerned that if he is triggered into a rage state, he may act out aggressively albeit not wanting to do so. Second, [ZYWY] is often extremely worried that if he becomes triggered by unwanted visitors, he will not be able to go into the community with his care support worker for several weeks. Given his history of social isolation, [ZYWY] greatly values his ability to now go into the community. It is fundamental to assisting him to achieve some level of stabilisation of his mental health.
…
it is my considered opinion that it would support [ZYWY’s] mental health and this in turn supports his capacity to engage in the community because he would cease to ruminate about his signage and therefore be less anxious and agitated. An inability to access professional signage will serve to ensure that [ZYWY] will remain excessively worried about unwanted visitors and excessively concerned and agitated about the possible consequences of this. This excessive rumination does genuinely exacerbate his psychiatric disability.
[13] Exhibit 5.
Dr Thomas gave evidence at the Tribunal hearing and confirmed that she has been treating ZYWY since April 2020. These NDIA-funded consultations were initially weekly, but have been fortnightly for the last 18 to 24 months.
Dr Thomas told the Tribunal she thought ZYWY's focus on the signage first gained attention when the NDIA denied his request for that support, and up until then he was not at all focused on the issue.
Dr Thomas agreed that her reports to the Tribunal reflect ZYWY’s wishes to have the sign, but that she is also of the view that its provision would be ‘beneficial for his mental health’. She agreed that she was not an independent expert given she is ZYWY’s treating psychologist. However, Dr Thomas told the Tribunal she is not ‘invested’ in whether ZYWY receives funding for the signage, but this has become a significant issue for him since the NDIA suggested it would not fund the sign; it has overtaken therapy ‘to some degree’ because ZYWY has become ‘so incensed’ and ‘focused’ on this issue. Dr Thomas conceded that, as ZYWY’s treating psychologist, she would ‘imagine’ that it was his expectation that she would advocate for him to receive the requested support, but that she would not advocate for it if she did not think it was in the best interests of his mental health. Dr Thomas agreed that the consideration for the NDIA was not as straightforward as the sign being requested and that it was a ‘very complex issue’, with the NDIA being required to go through its processes to determine whether the support should be funded. To this end, Dr Thomas agreed that the NDIA’s budget was not limitless and, in principle, that it needed to make a choice about which supports it can legitimately fund.
Counsel for the NDIA referred Dr Thomas to the opinion in her report that having some permanent signage is ‘not simply a matter of choice’.[14] She told the Tribunal that it was not simply a matter of ZYWY deciding he wanted the sign and it should therefore be funded, but that it is ‘complex because of [ZYWY’s] mental health issues’, therefore it is not a matter of choice. He ‘genuinely ruminates and obsesses about impermanent signage’, which is ‘about his mental health’. Dr Thomas told the Tribunal that the occupational therapist engaged by the NDIA, Mr Adam Baldock, could speculate that having some permanent signage would not guarantee people would not enter ZYWY’s property, but that he could not ‘categorically make that claim’. To this end, Dr Thomas was referred to her written opinion that she could also not ‘categorically state that having a permanent sign would provide a better guarantee of deterring uninvited people entering ZYWY’s property’.[15] Counsel put to Dr Thomas that her opinion was that the effect of the sign was unknown. She replied, ‘[o]f course, nobody knows what the effect of the sign will be’, but that ZYWY will have ‘less anxiety’, although noted that she could not say whether it will stop people from entering his property.
[14] Exhibit 5.
[15] Ibid.
Dr Thomas told the Tribunal she believed that, if ZYWY did not receive NDIA funding for the signage, he will ruminate about that issue in a way that will not assist his mental health. Counsel for the NDIA put to Dr Thomas the proposition that there would be a significant risk to the financial sustainability of the NDIS if it had to fund supports because, were it not to do so, a participant would ruminate about its absence. Dr Thomas told the Tribunal that, to not provide ZYWY with this ‘modest support’ will affect him, but acknowledged that the NDIA needs some level of ‘discretion’ and ‘gatekeeping’ and her opinion was contained only to ZYWY and his request for the support.
Dr Thomas was referred to the statement in her report of 17 May 2022 that ‘[ZYWY] becomes triggered by people entering his property during the normal course of the day such as meter readers or telecommunications representatives, or even random members or the public’.[16] Dr Thomas told the Tribunal that she has both observed this response and had it been reported to her by ZYWY. While Dr Thomas works with ZYWY via telehealth and has not attended his property, she has ‘seen him go into a rage response’ because the telephone rang unexpectedly during their session. However, she has not seen ZYWY’s response to people entering the property; this was based on ZYWY’s report. Dr Thomas had not asked ZYWY how many unexpected visitors he has to the premises, however ZYWY has told her that he has ‘a significant reaction’ to people attending the property uninvited or unexpected ‘most of the time’.
[16] Exhibit 1, page 86.
Dr Thomas agreed that, generally, when a person agrees to have electricity connected to the property, the person permits the electricity company to have reasonable access to their premises. It was put to Dr Thomas that a sign will not necessarily deter people from doing their job if they have a lawful right to access the property. She told the Tribunal that it would ‘depend on what the sign said’. Dr Thomas considered that ZYWY wanted signage at his front gate to alert people that they could not simply enter his premises.
Counsel for the NDIA referred to ZYWY’s most recent written statement that he would not speculate about the frequency of people currently seeking to access his property, because he lives behind a locked front gate almost ‘24/7’, or about how many people might seek access in the future if the front gate were open, as it was ‘pre-2007’ when he was ‘living like a normal person’.[17] Dr Thomas told the Tribunal she assumed that this statement indicated the current situation is that people are not seeking access to ZYWY’s property because they are unable to do so due to his locked front gate. To this end, Dr Thomas was again referred to her report of 17 May 2022 in which she stated that people entering the property was a current problem.[18] Dr Thomas said that this was what she had been told by ZYWY, that people come into the property unannounced. She had not asked him specific questions about whether the gate was locked or not and the frequency of people attending, including because it was not ‘a key feature’ of their therapy, although it has recently become ‘a key issue’, and she is not an occupational therapist. Dr Thomas further told the Tribunal that, ‘obviously if his gate’s locked people can’t get in’. Dr Thomas did not consider she had been intentionally misleading in reporting that various people attended ZYWY’s property, in circumstances where ZYWY had recently written that people do not do so because the front gate is locked and has been for the past 17 years. Dr Thomas said it was a matter for the Tribunal whether ZYWY had been misleading and that she can ‘only go on what [ZYWY] tells me’.
[17] Exhibit 14.
[18] Exhibit 1, page 86.

In these circumstances, Counsel asked Dr Thomas how she could say whether ZYWY’s exaggerated startle response still exists with respect to those unwanted visitors. Dr Thomas told the Tribunal that ZYWY informed her that ‘he has had difficulty with people coming onto the property’ and she witnessed the ‘exaggerated startle response’ when he had the unexpected telephone call.
Dr Thomas told the Tribunal she was aware that ZYWY stated that, were he to be provided with the signage, it would allow him to leave the front gate open. However, she was unaware that ZYWY had also stated that, if he were able to leave the front gate open, he would not have to walk down to open it for visitors and would not have to get out of his car to unlock the gate when leaving his property. Counsel asked Dr Thomas how ZYWY’s wish to leave the front gate open accorded with her description of him needing the sign due to his experience of being triggered by people entering the property during the normal course of a day. Dr Thomas told the Tribunal that ZYWY had expressly told her on a number of occasions that, if he had permanent signage it would ‘give him some peace of mind’ that it would not be ‘torn down’ or ‘blown away with the wind’ and, in his view, he would have a better chance that people would not enter the property unannounced; he ruminates about this ‘quite excessively’.
Counsel put to Dr Thomas that, if ZYWY was so genuinely fearful and triggered by people coming onto his property, he would not be seeking a mechanism by which he could leave his front gate open. Dr Thomas said this was a matter for ZYWY.
Counsel referred to Mr Baldock’s written statement that ZYWY is a ‘fiercely private person’.[19] Dr Thomas agreed that ‘most of the time’ ZYWY is a ‘very private person’, however one of his NDIS goals is to engage more in the community.
[19] Exhibit 12.
Dr Thomas disagreed with Mr Baldock’s opinion that ZYWY would seek to erect signage due to privacy alone.[20] She told the Tribunal that, since the dispute with the NDIA, ZYWY has consistently maintained that ‘having permanent signage would assist him to not ruminate about whether or not the temporary signage was there or not’ and he ‘genuinely has a concern that unexpected visitors will cause him to be quite triggered’, based on his previous history of intrusions ‘over a sustained period of time’ and the associated psychological trauma.
[20] Ibid.
Dr Thomas agreed with Mr Baldock’s opinion that the signage may assist ZYWY to feel better about securing his property. However, Dr Thomas disagreed that the requested signage would facilitate increased isolation; it would ‘give him better peace of mind, put him in a better mental state’ and allow him to be able to go out in the community with his support worker. Dr Thomas did agree with Mr Baldock’s opinion that there was a chance of aggravating ZYWY’s symptoms were someone to ignore the signage and enter his property.
Counsel asked Dr Thomas whether she agreed with Mr Baldock’s opinion that ZYWY’s unstable mental health is unrelated to whether or not he has the signage. Dr Thomas replied, ‘[y]es and no’, ZYWY has a long history of unstable mental health, but this issue has ‘exacerbated his poor mental health in recent times’.
Dr Thomas told the Tribunal she absolutely agreed with Mr Baldock’s recommendation that ZYWY receive intensive and sustained therapy and that this was what they had been doing for the last four years. Dr Thomas said that, unfortunately, ZYWY’s disputes with the NDIA have ‘derailed’ what was ‘quite good progress’. She told the Tribunal that if ZYWY received the funding ‘we could all get on with it’. That is, Dr Thomas’ opinion was that, if ZYWY were provided with the signage, he would ‘settle down’, it ‘doesn’t stop people coming on the property’, it would ‘give him more peace of mind that it would probably be a better deterrent’, but ‘it’s also about whether or not the signage would be there on any given day’ if it is not permanent and professional signage.
ZYWY asked Dr Thomas to confirm that when people suffer multiple traumas they are compounding in effect and that this is the case with him. She agreed. Dr Thomas’ experience working with ZYWY suggested that more than likely there was a ‘compound affect with multiple, quite significant traumas over such a long period of time’.
Mr Dylan Johnstone – Occupational Therapist
The Tribunal has considered the statement of Mr Johnstone dated 1 February 2024, which relevantly stated that:[21]
I have been asked by [ZYWY] to assist with the dispute between himself and the National Disability Insurance Agency (NDIA). [ZYWY] is seeking $1500 funding for assistive technology to erect specific signage at the front of his rural property. The signage is designed to allow [ZYWY] to leave the front gate to his property open.
…
[ZYWY] is highly anxious about leaving his front gate open. Someone entering his property without his prior knowledge and permission causes him a great deal of distress. [ZYWY] is concerned that this person may be harmed if they trigger his fight and flight response. [ZYWY] is worried about potential criminal charges.
For [ZYWY] to feel comfortable leaving his front gate open he needs to have the sign in place. Leaving the front gate open will be an anxiety provoking experience. A common treatment for someone with PTSD [Post-Traumatic Stress Disorder] is Cognitive Behaviour Therapy (CBT). This often includes a process of gradually exposing someone to the triggers that makes them anxious. Leaving the gate open is a trigger for [ZYWY]. Through gradual exposure [ZYWY] needs to increase his capacity to deal with this trigger. Leaving the gates open without the signage would not allow a process of gradual exposure. [ZYWY] is triggered too much without the signage which is why the gates are locked. [ZYWY’s] ability to engage with the treatment will be limited if we do not secure the funding. If [ZYWY] can deal with the PTSD symptoms better overall, it is reasonable to expect that he can participate in more activities than he currently does. This is specific to his goals of going into the community and attending his appointments. It is reasonable to expect that if [ZYWY] can participate in the community more often that his overall wellbeing will improve. It is likely that with overall improvement that his symptoms will have less of an impact of his functioning. Improved functioning will mean less reliance on person-to-person care. (Gallagher, M., Muldoon, O. T., & Pettigrew, J. (2015).
[21] Exhibit 6.
Mr Johnstone gave evidence at the Tribunal hearing and said that he had not previously worked with ZYWY, but had been asked by him to write the report for this proceeding. He could not recall being provided with the Tribunal’s Guideline for Persons Giving Expert and Opinion Evidence.
Mr Johnstone told the Tribunal the reference in the report to him assisting ZYWY with this proceeding related to commenting on whether or not the support ‘would be useful’ for ZYWY. Mr Johnstone said he was unsure whether he was advocating for ZYWY to receive the signage, but that ZYWY wanted an opinion on whether it was reasonable and necessary and that was Mr Johnstone’s intent with his letter. He told the Tribunal he had only formed a view following review of the documents and after speaking with ZYWY.
Mr Johnstone told the Tribunal that the requested signage would assist with ZYWY’s PTSD symptoms because treatment would include ‘gradual exposure’ to ‘the triggers’, with the ‘biggest trigger’ for him being people ‘coming into his home unwelcome, uninvited, without permission’. The sign is designed to ‘gradually expose’ ZYWY to having the front gate open at his property, being a ‘necessary step’ to ‘getting the treatment that he needs’ and contribute to his improved functioning, and ‘stepping him towards his overall treatment for PTSD’.
Counsel for the NDIA referred to ZYWY’s recent written statement that he would not be drawn on speculating about the frequency of people accessing the property because he lives behind a locked front gate and that he could not know how many people might seek such access if the gate was open as it was before 2007.[22] Mr Johnstone was asked, based on ZYWY’s own material, that for the last 17 years people have not been seeking access to the property, for the basis of his opinion that the signage will improve ZYWY’s PTSD symptoms. Mr Johnstone told the Tribunal that the ‘idea of the sign is to act as a communication device’ for ZYWY and each person driving into the property will have the opportunity to read the advice on the signage. In this regard, Mr Johnstone opined, it would be ‘reassuring’ for ZYWY that people have seen the signage before driving up the driveway and this ‘reassurance’ will see an overall reduction in symptoms.
[22] Exhibit 14.
Counsel asked Mr Johnstone whether he was aware that the gate was locked effectively almost ‘24/7’ and therefore people were not seeking access to the property. He told the Tribunal that he could not comment on when the gate was locked, but that it was locked when he attended ZYWY’s property, noting also that ZYWY told him it was locked ‘24/7’, but will be open at times.
Mr Johnstone was referred to his written statement about an alternative to the signage being a full-time support person to operate ZYWY’s gates and deal with visitors. He agreed that this was a serious alternative recommendation to deal with the emotional toll of ZYWY dealing with uninvited visitors to his property and that it was more expensive than signage, but there were ‘not a lot of other options’. Mr Johnstone was unsure how many unexpected weekly visitors ZYWY would have to his property. He was asked whether it would have been prudent to ascertain that figure to determine whether the support was required. Mr Johnstone told the Tribunal that this was ‘unpredictable’. He further stated that ‘the idea’ of having unexpected visitors is ‘extremely distressing’ for ZYWY and causes ‘quite a lot of functional impairment’, he is ‘an extremely isolated person’ and having a support person provides reassurance about ‘the dangers of having people turn up to his house uninvited’. Mr Johnstone agreed that he was aware that an object of the NDIS is that it is financially sustainable. He told the Tribunal he did not seek to address the financial sustainability of the NDIS in his report, but rather his suggestions were primarily about how to help ZYWY function as a person.
Counsel for the NDIA referred to the passage from Mr Johnstone’s report stating that if the requested support is not approved ZYWY would require further assessment from an occupational therapist to develop another strategy to manage his circumstances. He was asked the basis for this opinion. Mr Johnstone told the Tribunal that if ZYWY does not get signage funding, they will ‘need to think of something else’ because his level of functioning and his symptoms are ‘unacceptable’.
Counsel referred to Mr Baldock’s statement that ZYWY is a ‘fiercely private person’.[23] Mr Johnstone was asked whether he agreed with this observation. He said that it was ‘hard’ to say, but considered that ZYWY is ‘quite isolated’ and this could be said to be private, but that one of his goals is to be ‘out more’, therefore Mr Johnstone would not agree with Mr Baldock and opined that ZYWY is ‘isolated at home because of his symptoms’; he would not express an opinion on ZYWY’s behalf about him being a fiercely private person.
[23] Exhibit 12.
Counsel referred to Mr Baldock’s opinion that the signage may assist ZYWY feel better about securing his property.[24] Mr Johnstone agreed with this observation. Mr Johnstone was also referred to Mr Baldock’s opinion that the requested support may increase ZYWY’s isolation.[25] Mr Johnstone said he did not think ‘that was the intention’ and that the intention is to ‘be less isolated’ and to bring an overall reduction of ZYWY’s symptoms and distress to allow better functioning. This would then lead to less isolation. Counsel referred Mr Johnstone to Mr Baldock’s opinion that the effect of the support would be to lead to isolation. Mr Johnstone told the Tribunal that the ‘intention is about a desired effect’ to help ZYWY achieve his goals to be less isolated.
[24] Ibid.
[25] Ibid.
Finally, Mr Johnstone was referred to Mr Baldock’s opinion that there may be an aggravation of ZYWY’s symptoms if someone ignored the signage and came onto his property.[26] Mr Johnstone told the Tribunal that he considered ZYWY ‘would be aggravated by that’.
[26] Ibid.
Mr Adam Baldock – Occupational Therapist
The Tribunal has considered the report and supplementary report of Mr Baldock, dated 24 March 2023 and 29 February 2024 respectively, following his functional capacity assessment of ZYWY on 24 March 2023 at the request of the NDIA.[27] The supplementary report repeated Mr Baldock’s opinions from his initial report and added additional comments, which are relevantly stated as follows:[28]
[27] Exhibits 12 and 13.
[28] Exhibit 13.
Do you consider that the above-mentioned requested support is related to the Applicant’s permanent disability?
No – Whilst [ZYWY’s] mental state has him prefer isolation, it is his choice whether to erect signage in an effort to keep people out of his property. Additionally, [ZYWY] reported having already erected temporary signage which was ignored by most attendees to the property.
[ZYWY] is a private person with or without unstable mental health. He would likely seek to erect signage on either count.
Will the requested support be, or is it likely to be, effective and beneficial for the Applicant, having regard to good practice?
The requested support may assist [ZYWY] to feel better about securing his property however the support will not serve any benefit in keeping people out or off his property. A person seeking to access the property will do so regardless.
The writer notes that [ZYWY] feels that on occasion he needs to leave his front gate open. Whilst he continues to leave the gate unlocked or open people will enter the property, signage or no signage.
Regarding benefit and good practice, the writer notes that [ZYWY’s] mental health and PTSD symptoms came about as a result of protracted legal proceedings when [ZYWY’s] home was purchased by a corporate entity and further exacerbated by his fight with [that entity]. It would be fair to say that legal battles and confrontation, face to face and/or by written documentation is a trigger for [ZYWY’s] mental health/PTSD. Yet [ZYWY] continues to partake in legal battles (such as that with NDIS over a $1500.00 sign).
It is concerning that [ZYWY’s] treating team, Dr Thomas (Psychologist) and Mr Johnstone (Occupational Therapist) knowing legal confrontation to have been the cause and an ongoing trigger, are encouraging [ZYWY] to engage in legal confrontation and are actively supporting his participation with their reports. If I was treating [ZYWY], I would be encouraging him to avoid confrontation of this nature for the sake of his ongoing mental health.
On page 4 of Attachment 4 - The Applicant's Statement of Lived Experience dated 11 February 2024, the writer notes that [ZYWY] intends to first erect signage and then intends to erect an automated gate with video and intercom.
Will the requested support assist the Applicant to undertake activities so as to facilitate his social and economic participation?
No – They will likely facilitate increased isolation and the chance of aggravation of symptoms when someone ignores the support (signage) and enters the property.
There is no evidence in the original referral documentation, or in the supplementary documents provided to demonstrate that when [ZYWY] has erected his ‘make-shift’ signage in the past that his ability to undertake activities to facilitate his social and economic participation have improved. Just as there is no evidence in any of the documentation to demonstrate [ZYWY] has engaged in more social or economic activity because he has erected signage. It is therefore unlikely that there will be any change in [ZYWY’s] behaviour for social or economic participation with or without the signage.
Are there any other supports, other than the requested support, which would assist the Applicant to undertake activities, so as to facilitate his social and economic participation?
The provision of signage will not aid in the facilitation of [ZYWY’s] ability to participate in social or economic activity. They will help [ZYWY] to feel better about securing his property which may contribute to improved mental health, however [ZYWY’s] unstable mental health is not related to whether he has signage. [ZYWY’s] mental health is related to unresolved trauma and social interaction (aggravated by confrontation) which needs to be addressed by intensive and sustained therapy and avoidance of confrontation as discussed above. The Writer notes that [ZYWY] has been in weekly and fortnightly therapy for almost four years now with no obvious improvement. The lack of improvement, no doubt related to [ZYWY’s] continued efforts to actively engage in confrontation, such as that with NDIS.
The writer prognoses that if [ZYWY] avoided confrontation with the likes of NDIS and other entities, his therapy would have a much higher chance of helping resolve [ZYWY’s] mental health/PTSD symptoms and/or achieving mental stability. Once stabilisation of [ZYWY’s] mental health is achieved signage will be a negligible matter.
That said and having reviewed Attachment 3 - Letter from Dyan [sic] Johnstone dated 1 February 2024 and Attachment 4 - The Applicant's Statement of Lived Experience dated 11 February 2024 where it has been espoused that one alternative option and [ZYWY’s] preferred option (from what I can ascertain by reading the documents) is to keep the front gate locked at all times. However, for various reasons, including an inability to walk/drive to the gate to unlock, [ZYWY] has alleged he cannot keep the gate locked all the time.
There is now technology that will allow [ZYWY] to lock the front gate permanently and never have to walk the 100-metres to unlock the gate. This can be achieved through the use of the ‘Igloo Smart Lock’ which allows [ZYWY] to open the gate remotely by using an app on his smartphone. The product does not require Wi-Fi or Bluetooth. [emphasis in original]
Mr Baldock gave evidence at the Tribunal hearing and confirmed adherence to his written reports in these proceedings.
Under cross-examination from ZYWY, Mr Baldock told the Tribunal that he did not contact ZYWY’s treating general practitioner or exercise physiologist in preparing his reports. He told the Tribunal that this was because it was not usually his practice and he received medical reports with his briefing letter from the NDIA. To this end, Mr Baldock considered the brief provided by the NDIA to be sufficient for the purpose of his assessment.
Mr Baldock agreed that he was engaged as an independent expert in these proceedings. He referred to his experience regarding mental health, including completing two ‘base level semesters’ of psychology and having 23 years of occupational therapy experience.
Mr Baldock was asked for evidence of his opinion that ZYWY’s request for signage was not related to his disability. Mr Baldock told the Tribunal that from his assessment ZYWY’s anxiety is ‘triggered and provoked’ by unexpected people attending his property and his mental health is therefore affected. He further opined that the signage ‘won’t have any impact’ on improving ZYWY’s mental health because effectively the signage to date has not had any effect on preventing people from entering the property, so it was unclear why any future or alternative signage would have any impact.
ZYWY asked Mr Baldock why, during his functional assessment, he did not ask to observe ZYWY’s ability to enter, sit in and exit his car. Mr Baldock told the Tribunal that he did not consider it relevant at the time: those movements had been assessed by another occupational therapist so he did not need to re-test these actions and that, as a result of his experience, he is able to assess sitting postures, transfer capability and other relevant aspects of a person’s functional capability without having to observe the person performing the specific task. In this regard, Mr Baldock said that having observed ZYWY at the assessment sitting, standing, walking, undertaking other movements, managing stairs, steps, doorways, transfers and the shower had allowed him to interpret ZYWY’s physical capability.

ZYWY asked Mr Baldock about his reference to mental state. Mr Baldock told the Tribunal that there was a report from ZYWY’s psychologist and an occupational therapist detailing quite significantly his current mental health and physical status, which he deemed relevant at the time and evidence of ZYWY’s progress to date. Mr Baldock accepted that he was not apprised of the starting point for ZYWY’s mental state, but said that he was aware that it is ‘quite volatile’, which was evident from treating practitioners and ZYWY’s own statements one year ago, and that there ‘does not appear to be a lot of progress in at least the last 12 months’.
Mr Baldock was asked for the basis of his opinion that ZYWY is a private person at times of stable mental health. He told the Tribunal that stability in a psychological and health sense is having full functional capacity in all aspects of a person’s life for 12 to 24 months with ‘managed’ mental health symptoms.
ZYWY asked Mr Baldock for his opinion regarding the benefit of graded exposure by having an unlocked gate rather than it being permanently locked. Mr Baldock told the Tribunal that he did not believe the requested signage is part of a graded plan, because it will not have any impact on whether people enter ZYWY’s property and therefore he would not have control. To this end, Mr Baldock further said that it would have no impact because the current signage has had no impact on preventing people from entering the property, therefore he did not consider future signage would have any impact, while acknowledging the requested support would be ‘bigger and brighter’ than the current signage. Mr Baldock told the Tribunal that he did not believe the requested signage is related to ZYWY’s disability and that it was ZYWY’s choice, like any other person, whether or not to erect signage on his property.
CONTENTIONS
ZYWY
ZYWY sought funding from the NDIA in the amount of $2,100 for signage at his rural property. He contended that this requested support was reasonable and necessary and met all of the criteria in section 34 of the NDIS Act and the Supports Rules.
ZYWY submitted that having the requested signage would considerably reduce his anxiety and also facilitate easier access to and from the property for himself and allow him to facilitate access for appropriate visitors by enabling, as the default setting, the front gate of the property to be open and unlocked.
ZYWY sought a decision from the Tribunal setting aside the NDIA’s decision and in substitution finding that the disputed support should be included in his statement of participant supports and funded under the NDIS.
NDIA
The NDIA contended that ZYWY’s requested support should not be included in his statement of participant supports, because it:
(a)is not a disability-related support pursuant to rule 5.1(b) of the Supports Rules;
(b)relates to day-to-day living costs pursuant to rule 5.1(d) of the Supports Rules;
(c)will not assist ZYWY to undertake activities so as to facilitate his social and economic participation in accordance with subsection 34(1)(b) of the NDIS Act; and
(d)is not, or is not likely to be, effective and beneficial for ZYWY having regard to current good practice, as required by subsection 34(1)(d) of the NDIS Act.
The NDIA therefore submitted that the Tribunal should affirm the decision under review.
CONSIDERATION
Will the requested support be, or is it likely to be, effective and beneficial?
As set out above in these reasons, subsection 34(1)(d) of the NDIS Act requires the Tribunal to be satisfied that the requested support will be, or is likely to be, effective and beneficial for ZYWY, having regard to current good practice. Rules 3.2 and 3.3 of the Supports Rules detail matters to be considered in deciding whether a support meets this criterion.
The following relevant sections from the NDIS Operational Guidelines regarding this criterion are also noteworthy. The guidelines form government policy and should be applied by a decision-maker where consistent with the primary legislation unless there are cogent grounds to the contrary:[29]
[29] Exhibit 1, pages 699-700. See Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
The term ‘current good practice' means a practice which, even if not widely used, is recognised by sufficient numbers of practitioners as being based on sound evidence (see TKCW and NDIA [2014] AATA 501 at [70]) (external).
When deciding whether a support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice, the NDIA must consider the available evidence of the effectiveness of the support for others in like circumstances.
…
Also, the participant's lived experience (i.e. their first-hand knowledge, experience and understanding of their conditions and various treatments) will inevitably be subjective, however, this does not mean that it is of limited probative value. How much weight ‘lived experience' should be given will depend on all of the available evidence. Where lived experience is consistent with reliable, relevant, independent evidence, it will likely be given a good deal of weight. Where it is at odds with other evidence, it may be given less weight.
…
Whether or not there is unarguable evidence of the benefits of a proposed support is not the test of whether a support is likely to be effective and beneficial having regard to current good practice. Rather, the NDIA will need to be satisfied that there is evidence, even if anecdotal, from a sufficient number of qualified experts, of positive outcomes in a sufficient number of people. Emerging signs of positive outcomes in isolation will not be sufficient (see TKCW and NDIA [2014] AATA 501 at [74] and [75] ) (external).
A support may be effective and beneficial where the desired effect or benefit achieved is to maintain a participant's level of functioning (as opposed to effecting any long-term change in the disability itself) at a level which enables the person to engage in social and economic activities to the extent they are able to engage (see McCutcheon and NDIA [2015] AATA 624 ) (external).
Importantly, whilst one of the objects of the NDIS Act is to promote the provision of high quality and innovative supports (section 3(g)), innovation, of itself, does not displace the requirement that a support must be effective and beneficial, having regard to current good practice (see TKCW and NDIA [2014] AATA 501 at [71] ) (external)
This requirement also reflects the need to have regard to the financial sustainability of the NDIS which is likely to be undermined if funding for supports whose effectiveness and benefits are largely unknown, especially where a reliable means of measuring the benefits of a support in a single case is lacking (see TKCW and NDIA [2014] AATA 501 at [76] ) (external) and (section 3(3)(b)).
ZYWY is a participant in the NDIS on the basis of a range of impairments arising from bipolar affective disorder, borderline personality disorder, major depressive disorder, generalised anxiety disorder, PTSD symptoms, and Scheuermann’s disease.
In ZYWY’s document titled ‘Signage funding request & explanation’ and dated 8 February 2023, he stated that, despite ‘rudimentary signage & default locked gate there have been since 2007 numerous inappropriate entries’.[30] However, in his written response to the NDIA’s Statement of Facts, Issues and Contentions, dated 8 March 2024, ZYWY relevantly stated that:[31]
I will not be drawn into speculative estimates of how frequently others may perhaps possibly desire to seek to access my property, particularly the close proximity of my home & outbuildings as I currently live behind a locked Front Gate effectively almost 24/7 & cannot possibly know how many people might seek access if my front gate were open as it used to pre 2007 win [sic] I was living like a normal person prior to onset of my chronic startle response issues. [emphasis in original]
[30] Exhibit 9.
[31] Exhibit 14, page 5.
In addition, ZYWY’s written closing submissions dated 12 April 2024 stated that:[32]
Even i cannot say how many people have ignored the sign to enter Or how many have seen it & not , it is random i would never say MOST people if I do not know. There have been some past encounters that is All I can say with surety & i belive that larger more apropriate signage would likely reduce the number of peope who might ignore them. [errors in original]
[32] Exhibit 15.
Up until these two recent statements in the proceeding, ZYWY and, based on his reporting, his clinical psychologist Dr Thomas, had presented the issue of unwanted visitors to ZYWY’s property as being a current problem, with ‘numerous entries’ onto his property, and therefore requiring the provision of the requested support by the NDIA. In this regard, Dr Thomas’ reports of 17 May 2022 and 9 September 2022 stated that ZYWY ‘becomes triggered by people entering his property during the normal course of the day such as meter readers or telecommunications representatives, or even random members of the public’.[33] Under cross-examination, Dr Thomas accepted that: she had described the issue of ZYWY being triggered by uninvited visitors to his property as being a current problem; she was unaware that the front gate of ZYWY’s property had been locked for the last 17 years; she had not witnessed ZYWY becoming triggered by unwanted visitors to his property; she had described ZYWY becoming so triggered on the basis of what he had reported to her; she was unaware of the number of uninvited visitors to ZYWY’s property and had not sought such information from him; she was also unaware that ZYWY had requested the signage to be able to leave his front gate open so that he would not need to walk down to open it for visitors and could leave his property without having to get out of his car; and it was not possible to say what effect the proposed sign would have, although she considered its provision would reduce ZYWY’s anxiety.
[33] Exhibit 1, pages 86 and 226.
The current circumstances appear to be that, due to the locked front gate, there is no evidence that any unwanted (or, at least, unwarranted) visitors are attempting to enter ZYWY’s property. Understandably, as ZYWY’s treating psychologist, Dr Thomas accepted what he reported to her regarding him becoming triggered by people entering his property, however this did not include information that the front gate to the property is presently locked and has been for the last 17 years, the number of any unwanted or uninvited visitors seeking to enter ZYWY’s property is unknown and that there is at least one other reason for requesting the support, this being to leave his gate open for visitors or when leaving his property. Importantly, and again understandably, Dr Thomas accepted that it was not possible to say what effect the proposed sign would have for ZYWY, although she opined that it would reduce his anxiety and rumination about the longevity of temporary signage. However, the Tribunal is not satisfied that this potential reduction in ZYWY’s anxiety symptoms is related to the proposed therapeutic purpose of the signage, but rather appeared to be related to ZYWY’s fixation on this issue and the associated dispute with the NDIA, together with wanting to maintain his privacy through more permanent and reliable signage on his property. That is, the Tribunal considers that there was a lack of clarity about the therapeutic basis for the requested support and how it related to ZYWY’s impairments. For all of these reasons, in relation to the effectiveness and benefit of the requested signage for ZYWY, the Tribunal can only place limited weight on Dr Thomas’ evidence in support of that request.
The occupational therapist, Mr Johnstone, was aware that there was a locked gate at the front of ZYWY’s property and that he was seeking the requested support so as to feel comfortable about leaving that gate open. Mr Johnstone told the Tribunal he was unsure how many visitors attended ZYWY’s property. In Mr Johnstone’s written report of 1 February 2024 and under cross-examination, he said that leaving the front gate open was a trigger for ZYWY.[34] To this end, Mr Johnstone opined, the requested signage would allow ZYWY to leave the front gate open as part of a gradual exposure process through Cognitive Behaviour Therapy and that leaving the gates ‘open without the signage would not allow a process of gradual exposure’.[35] Mr Johnstone suggested that this exposure would lead to ZYWY dealing better with his PTSD symptoms.[36] In relation to this specific criterion under section 34 of the NDIS Act requiring satisfaction that the requested support will be, or is likely to be, effective and beneficial for the participant, Mr Johnstone’s written report stated that the ‘Australian Guidelines for the prevention and treatment of Acute Stress Disorder and Posttraumatic Street [sic] Disorder and PTSD recommend cognitive therapies including exposure therapy’.[37] He did not further expand on this written statement, including how it demonstrated that subsection 34(1)(d) of the NDIS was satisfied in relation to the requested support.
[34] Exhibit 6, page 2.
[35] Ibid.
[36] Ibid.
[37] Ibid., page 4.
When asked under cross-examination to provide the basis for his opinion that the signage would improve ZYWY’s PTSD symptoms, Mr Johnstone effectively paraphrased the relevant brief section from his written report. The Tribunal considers that there was no persuasive evidence to demonstrate that provision of the requested support would improve ZYWY’s PTSD symptoms. To this end, it was unclear to the Tribunal why the requested signage would allow ZYWY to undertake a gradual exposure process of leaving his front gate open when this has seemingly not been possible with the temporary signage installed by ZYWY at the property.
Additionally, Mr Johnstone acknowledged in his report that he was asked by ZYWY to ‘assist with the dispute’ regarding the requested support and at the hearing maintained, as a serious proposal, an alternative support to the signage being the NDIA funding a full-time support worker to greet the unknown number of visitors to ZYWY’s property.[38] He was also unaware of, and understandably given ZYWY was self-represented, had not been provided with, the Tribunal’s Guideline for Persons Giving Expert and Opinion Evidence. For all of the above reasons, the Tribunal places limited weight on Mr Johnstone’s evidence in relation to the relevant criterion requiring satisfaction that the support will be, or is likely to be, effective and beneficial for ZYWY.
[38] Ibid., page 1.
At the hearing and in written closing submissions, ZYWY put forward another reason for the requested signage related to potential trespassers on his property. ZYWY referred to legal authority that he was responsible for injuries suffered by trespassers on his property and that the wording of the requested support would make clear that there was no ‘implied licence’ for trespassers to enter his property. In addition, the requested support was the first part of ZYWY’s proposed plan to streamline access to and from his property. That is, if the requested support was provided, he would then seek to make automatic a second gate closer to his residence on the property and install an intercom system.[39]
[39] Exhibit 3, page 4.
Based on all of the evidence, the Tribunal was left with the impression that, as a private person determined to maintain control of his property and those potentially seeking access to it, irrespective of his impairments, ZYWY would want permanent signage at the entrance of his property, rather than the previous temporary signage, to inform any uninvited or unwanted visitors to, among other things, not enter his property and of his legal position were they to do so. As Dr Thomas told the Tribunal, ZYWY ruminates about whether the temporary signage ‘was there or not’ and more permanent signage would provide him with peace of mind that it was a deterrent to potential uninvited visitors to his property. As previously stated, Dr Thomas accepted that nobody knows what the effect of the sign will be for ZYWY.
Having regard to the evidence and the Tribunal’s findings regarding the available expert evidence in relation to the requested support, the Tribunal accepts the opinions of Mr Baldock, Occupational Therapist, that: the requested support ‘may assist [ZYWY] feel better about securing his property’, however it would ‘not serve any benefit in keeping people out or off his property’, because a person ‘seeking to access the property will do so regardless’; when the gate is unlocked or open ‘people will enter the property, signage or no signage’; and there is ‘the chance of aggravation of symptoms when someone ignores the support (signage) and enters the property’.[40]
[40] Exhibit 13, pages 2-3.
The Tribunal considers that that the requested support will likely not have the outcome sought by ZYWY and that the effectiveness and benefits are unknown and appear speculative. Temporary signage has reportedly failed to work in the past, noting that it was unclear from the evidence whether any unwelcome and uninvited visitors entered or sought to enter the property since the front gate has been locked from 2007. Additionally, people with a lawful reason to enter ZYWY’s property, such as the identified meter readers and telecommunications representatives, will enter the property where they have a lawful basis to do so and most likely regardless of the nature and extent of signage at the property. Furthermore, with or without the requested signage, having an unlocked gate in the future may make ZYWY’s property more vulnerable to unwelcome visitors and lead to issues that he seeks to avoid. In this regard, the Tribunal finds some force in the opinion of Mr Baldock that there is a prospect ZYWY’s psychological issues may become aggravated if someone were to disobey the wording on the requested signage and enter his property. Both Dr Thomas and Mr Johnstone agreed with this opinion.
Dr Thomas told the Tribunal that ZYWY had become consumed by his dispute with the NDIA regarding the signage and that it was disrupting their psychological sessions funded under the NDIS. In this regard, Dr Thomas said that, were ZYWY funded for the requested support, everyone could ‘get on with it’. The Tribunal considers that resolving the dispute with the NDIA, rather than provision of the support itself, would be a significant factor in reducing ZYWY’s anxiety. Dr Thomas accepted that the NDIA was unable to fund supports on the basis that, were it not to do so, the participant would ruminate on their absence. To this end, in giving effect to the objects of the Act, regard must be had to the need to ensure the financial sustainability of the NDIS. That is, funding supports which are found not to be reasonable and necessary so as to avoid current or potential disputes with NDIS participants would seriously undermine the financial sustainability of the NDIS.
The Tribunal has considered Rules 3.2 and 3.3 of the Supports Rules in relation to the criterion under subsection 34(1)(d) of the NDIS Act. Rule 3.2 requires consideration of the available evidence of ‘the effectiveness of the support for others in like circumstances’. There was no such evidence in this proceeding regarding the requested support. However, for completeness, the Tribunal notes that there was no published and refereed literature or consensus of expert opinion regarding the effectiveness of the support. As stated above, Dr Thomas acknowledged that nobody knows what the effect of the sign will be for ZYWY. The Tribunal has also considered ZYWY’s lived experience, including his written statements in this proceeding, detailed above in these reasons. There was also, unsurprisingly, no evidence regarding what the NDIA has learnt through delivery of the NDIS in relation to this particular requested support, although the NDIA made submissions regarding the financial sustainability of the NDIS and specific submissions in relation to the requested signage. The Tribunal has set out above the available expert opinion in this proceeding and its findings in relation to that evidence.

For completeness, having regard to the Operational Guidelines, the Tribunal notes that it is not satisfied that there is evidence from any, let alone a sufficient number of, qualified experts of positive outcomes in a sufficient number of people in relation to signage and the effectiveness and benefits of such signage are, at best, largely unknown. Additionally, as stated in the Operational Guidelines, while one of the objectives of the NDIS Act is to promote the provision of high quality and innovative supports, innovation, of itself, does not displace the requirement that a support must be effective and beneficial, having regard to current good practice.
Based on all of the available evidence and for the above reasons, the Tribunal is not satisfied that the requested support of funding from the NDIA for signage will be, or is likely to be, effective and beneficial for ZYWY, having regard to current good practice. Accordingly, the Tribunal finds that the requested support does not meet subsection 34(1)(d) of the NDIS Act.
CONCLUSION
Based on the Tribunal’s above findings, not all of the criteria under section 34(1) of the NDIS Act are satisfied in relation to the requested support. Therefore, it is not necessary for the Tribunal to consider the further grounds advanced by the NDIA for refusing to approve the support. Having considered all of the evidence in this proceeding, the Tribunal is not satisfied that funding for signage for ZYWY’s property meets all of the criteria to be approved as ‘reasonable and necessary’ under the NDIS Act and for inclusion in the statement of participant supports in ZYWY’s NDIS plan. Accordingly, ZYWY’s application to the Tribunal is unsuccessful.
DECISION
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the AAT Act.

I certify that the preceding 88 (eighty-eight) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

....[SGD]....................................................................
Associate
Dated: 30 April 2024

Date(s) of hearing:

12 March 2024

Date final submissions received:

12 April 2024

Applicant:

ZYWY

Counsel for the Respondent: Ms Louise Martin

Solicitor for Respondent: Ms Emma Rogerson,
HWL Ebsworth Lawyers

Date(s) of hearing:	12 March 2024
Date final submissions received:	12 April 2024
Applicant:	ZYWY
Counsel for the Respondent:	Ms Louise Martin
Solicitor for Respondent:	Ms Emma Rogerson, HWL Ebsworth Lawyers