Brown and National Disability Insurance Agency [2024] AATA 3318 (18 September 2024)

(a) 15 hours of assistance with self-care activities per day, > > (b) 3 hours of access community social and rec activities per day; and > > (c) 6 hours of assistance with self-care activities - night-time sleepover per day.

3. This order also included a notation that the parties had agreed that the Agency would pay $47,158.16 to Songbird Homes.
4. The order was implemented by the Agency in a Statement of Participant Supports (SPS) for a plan period from 27 January 2022 to 27 January 2023 (January 2022 SPS). The total budget in the January 2022 SPS was $613,575.75 which included:

(a) $581,108.92 for support worker assistance with daily activities and social and community participation, consumables, and low-cost assistive technology; > > (b) $2,676 for transport; and > > (c) $66,880.83 for capacity building, including allied health professionals, plan management and level 2 support coordination.

5. Between February 2022 and December 2022, the Applicant provided the Agency with:

(a) two updated quotes for a standing frame from Dejay Medical & Scientific prepared by Ben Molnar on 7 February 2022 and 2 December 2022; > > (b) a report from Breaking Boundaries Rehab prepared by Hayley Harwood (Exercise Physiologist) and Olivia Creswick (Physiotherapist) dated 11 November 2022;[3] and > > (c) a letter from Summer Housing regarding the inclusion of Onsite Shared Supports in his SDA dated 23 November 2022.

6. On 19 December 2022, the Agency advised that they would vary the SPS to include:

(a) additional insurance for vehicle modifications; and > > (b) additional funds for exercise physiology and physiotherapy.

7. This variation did not approve other requests made by the Applicant for:

(a) transport funding; or > > (b) a standing frame.

8. The variation decision indicated that other aspects of the Applicant's request had been referred to Agency Home and Living Team.
9. On 19 January 2023, a delegate for the Agency's Operations and Housing Support Branch advised that Applicant that his home and living supports had been re-assessed and changed to include SDA for a single resident apartment:

(a) in the high physical support design category, > > (b) located in the Newcastle and Lake Macquarie area; with > > (c) onsite overnight shared supports.

10. In this letter the delegate also advised that, due to the Applicant's improved capacity, the plan would include a 12-week step-down in supports. After this 12-week period, the Applicant's support model would change to 8 hours per day of Flexible Living Supports (FLS), 3 hours per day of Social Community and Civic Participation (SCCP) and Onsite Overnight Shared Supports.
11. The 19 December 2022 and 19 January 2023 changes were implemented in a new SPS which the Agency approved for a plan period from 25 January 2023 to 25 January 2024 (January 2023 SPS). The total budget included in the January 2023 SPS was $504,793.57 which included funding for:

(a) $399,001.10 for support workers, low-cost assistive technology, and insurance; > > (b) $71,025.76 for Agency managed supports, being overnight onsite shared SDA supports; > > (c) $31,866.71 for capacity building, including allied health professionals, financial intermediary for plan management, and level 2 support coordination; and > > (d) $2,900 for repairs and maintenance.

12. The January 2023 SPS included a transition budget with a 12-week step-down for home and living supports. For the first 12 weeks, $12,111.65 was available per week and then, after 13 April 2023, this funding reduced to $4,220.02 per week.
13. The January 2023 SPS also indicated that $105,888.00 would be available for SDA but that this would be subject to a quote being provided. This amount was not included in the total budget for the January 2023 SPS.
14. On 15 February 2023, the Applicant provided two letters of support from Breaking Boundaries Rehab prepared by Pip Cave (Head Physiotherapist).[4] One letter related to the standing frame and the other to physiotherapy and exercise physiology treatment.
15. On 4 April 2023, the Applicant asked the Agency to review the decision to approve the January 2023 SPS. The Applicant's support coordinator (Laylah Clark) completed a Request for Reviewable Decision form, and this was accompanied by a letter from the Applicant explaining the basis of his request.[5]
16. On 13 June 2023, the Agency varied their decision and approved a new SPS for a plan period from 13 June 2023 to 12 June 2024 (June 2023 SPS).[6] This decision is the reviewable decision which is before the Tribunal. In this decision, and Agency delegate approved the standing frame, increased the funding for support workers, but adjusted this for the step-down approach. The delegate did not approve transport funding.
17. The June 2023 SPS, which implemented this decision, included the same Applicant goals as in the January 2023 SPS. The total budget included in the June 2023 SPS was $501,255.85 which included funding for:

(a) $380,463.38 for support workers, low-cost assistive technology, and insurance; > > (b) $71,025.76 for Agency managed supports, being unplanned onsite shared SDA supports; > > (c) $31,866.71 for capacity building, including allied health professionals, financial intermediary for plan management, and level 2 support coordination; and > > (d) $17,900 for a standing frame, repairs and maintenance.[7]

18. While this SPS also still refers to 'Onsite Overnight Shared Supports', the budget for onsite supports (whether described as overnight or unplanned) remained unchanged. Based on the decision letter, the unplanned onsite support replaces the onsite overnight supports and is not an additional item.
19. On 13 July 2023, the Applicant's father passed away. The January 2022 and January 2023 SPS indicated that the Applicant's father had temporarily moved to Newcastle to provide support to the Applicant while the Applicant was hospitalised.
20. On 20 July 2023, the Applicant lodged an appeal with the Tribunal. At the Tribunal the parties took part in two case conferences and two directions hearings prior to the substantive hearing. At the request of the Agency, the Tribunal issued summons for the Applicant's records held by Breaking Boundaries Rehab and Cerebral Palsy Alliance which were made available to the Applicant in February and the Agency in March 2024.
21. The Agency arranged for an independent report from Sarah Gatenby (Occupational Therapist). The Applicant declined to participate in a home visit or interview with Ms Gatenby and the report was prepared as a file review. Ms Gatenby was provided with a large volume of written material (approximately 500 pages) which included the summonsed records. Ms Gatenby's report was initially lodged with the Tribunal on 19 April 2024, but an updated version was also provided on 26 April 2024.
22. A hearing was held by video on 29 and 30 April 2024. The Applicant and Ms Gatenby provided oral evidence at the hearing. None of the Applicant's treaters or service providers were called as witnesses by either party.
23. After the hearing, at directions hearings on 31 May, 17 June, 2 August and 4 September 2024, the Tribunal requested further information and submissions from the parties in relation to:

(a) the onsite services included in the SDA model; > > (b) any risk assessments conducted, or assessment tools specified; > > (c) the operation and effectiveness of previous plans; and > > (d) steps taken by the Applicant to seek assistance from community or employment programs.

24. This information was initially provided on 5 July 2024 and supplementary information was provided prior to final oral submissions being made on 4 September 2024.

1. The issue to be decided is what are the reasonable and necessary supports that should be funded in the Applicant's SPS.
2. The Applicant says the following are reasonable and necessary and should be funded:

(a) 16 hours per day of 1:1 support worker assistance; > > (b) Onsite on-call supports; and > > (c) Level 3 transport funding.

3. The Agency says that the model in the June 2023 SPS provides reasonable and necessary supports with:

(a) 13 hours per day of 1:1 support worker assistance; > > (b) Onsite on-call supports; and > > (c) No transport funding.

4. The parties do not dispute that onsite on-call supports (OOS) are reasonable and necessary, or that the Applicant requires 1:1 support worker assistance. The parties disagree about the number of support worker hours per day that are reasonable and necessary, and whether transport funding is reasonable and necessary. While the parties agree that OOS is reasonable and necessary, understanding the supports that are available in this model is relevant to considering the number of 1:1 support worker hours that are reasonable and necessary.

1. Chapter 1, Part 2 sets out the objects and principles the NDIS Act including, for example, that the NDIS Act is to support the independence and social and economic participation of people with disability,[8] and that reasonable and necessary supports should:

(a) support people with disability to pursue their goals and maximise their independence; > > (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.[9]

2. Chapter 3, Part 2 of the NDIS Act deals with participants and their plans and includes further principles in relation to the preparation, variation, reassessment and replacement of plans. This guidance includes that this planning process should, so far as reasonably practicable, be directed by the participant,[10] and be underpinned by the right of the participant to exercise choice and control over his or her life.[11]
3. A participant's plan must include a statement of the participant's goals and aspirations[12] as well as a SPS that specifies the reasonable and necessary supports that will be funded by the Agency.[13] In deciding to approve a SPS, the Agency must have regard to the matters set out in section 33(5), including applying the NDIS rules,[14] and be satisfied that each support meets the criteria in section 34.

1. From the outset, the Applicant has approached this appeal on the basis that the Agency did not have a proper basis for reducing the level of funding from what was included in the January 2022 SPS to what was included in the June 2023 SPS. The Applicant maintained that there was ample information to maintain funding at the January 2022 SPS level and that funding should not have been reduced without further specific information that this reduced level of funding was appropriate. The Applicant referred to public statements made by the Minister for the National Disability Insurance Scheme that participants would not need to reprove their disability during each plan review.[15] Based on this approach, the Applicant did not want to seek or provide further information during the Tribunal process or participate in further assessments. The Applicant wanted to proceed to an outcome by a hearing before the Tribunal with the information that was before the Agency decision-makers when they made their decisions.
2. In contrast, the Agency maintained that the June 2023 SPS was to be considered by the Tribunal afresh and that it was for the Applicant to demonstrate to the Tribunal that the level of funding he is requesting is currently reasonable and necessary. Based on this approach the Agency also did not seek further information from the Applicant's treaters or service providers. The Agency offered to arrange and fund an independent assessment with an occupational therapist. When the Applicant did not agree to take part in this assessment, the Agency asked the Tribunal to issue summons for the Applicant's medical records and provided these to an occupational therapist who prepared a report based on review of the records.
3. In my view, neither approach is entirely correct nor helpful to the Tribunal.

1. The Agency is correct that the Tribunal's role is to make the correct or preferable decision with the information before the Tribunal at the time of the Tribunal's decision. This is the task in conducting merits review at the Tribunal and is well established.[16] The Tribunal is not required to consider whether the Agency decision was right based only on the information that was before the decision-maker.
2. The Agency is correct that the Tribunal must be satisfied of several factors before deciding that a support is reasonable and necessary. As Justice Mortimer (as the Chief Justice then was) held in McGarrigle:[17]

The matters set out in s 33(5) are mandatory aspects of the CEO's approval function, and therefore on review, mandatory aspects of the Tribunal's approval function. Section 33(5)(c) requires the CEO to be "satisfied as mentioned in s 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided". This directs attention to six matters set out in s 34 of which the CEO must be satisfied.

3. The Applicant is correct that a finding of fact made in the earlier decision by the AAT should be applied by future decision-makers considering the same factual circumstance.[18] In my view, this is the case even when an outcome is a result of an alternative dispute resolution process, as the parties are required to participate in these processes in good faith.[19] It would be inconsistent with the obligation to participate in good faith if a decision-maker proceeded to immediately make a decision which undid this agreement. However, it is also clear that an order of the Tribunal cannot bind a future decision-maker.[20] In this matter, the Agency decision-makers proceeded with a reassessment in the timeframe that was ordered by the Tribunal and were no longer bound by that order.

1. The Agency submitted that, having not provided more current information from his treaters, support workers, or informal supports, the Tribunal should draw the inference that this information would not support of the Applicant's position. I agree that the Applicant could have been more cooperative and forthcoming in the information that he provided to the Tribunal. The Applicant's explanation that he did not do so because his view was that there was already sufficient information is consistent with the way in which he approached this appeal.
2. The Agency could have, at any time throughout the reassessment, internal review and Tribunal process, actively sought further information. The Agency could have directly requested this information for the Applicant's support workers or treatment providers, called additional witnesses, prepared reports by Agency technical advisors, or made Agency officers available to provide oral evidence. The Applicant did not request a similar adverse inference be drawn in relation to the Agency's evidence. A legally represented Applicant may well have made such a submission. On balance, I do not think it is necessary to draw an adverse inference in relation to either the Applicant or Agency in relation to the provision of information to the Tribunal.

1. It is not entirely correct to say that it is for the Applicant to provide evidence to satisfy the Tribunal of his application. The Agency acknowledged that there is not a formal onus or burden of proof on an applicant in a Tribunal proceeding. If a party is seeking a positive finding on a particular issue, it is in their interests to provide information that supports this finding.[21] Frequently, it will be an Applicant that is seeking a particular finding, but this may depend on the finding that is sought.[22] In some circumstances, it will be the Agency who is seeking to satisfy the Tribunal that a particular finding should be made, such as in relation to cancellation of a pension[23] or entitlement.[24]
2. At this highest level, my observation is that applications for access to the scheme more often require findings that prospective participants will be seeking to satisfy the Tribunal. In contrast, a decision to revoke a person's status as a participant in the scheme might involve findings that the Agency is seeking to satisfy the Tribunal. For decisions in relation to additional supports, the participant will seek to demonstrate that these extra supports are reasonable and necessary. In this way, a decision to reduce supports might also attract a greater degree of responsibility for the Agency to demonstrate that a lower level of supports is reasonable and necessary in the circumstances.
3. Legislation can also specify an onus.[25] The NDIS Act does not expressly specify an onus or standard of proof. However, the NDIS Act objects, principles, provisions and rules are relevant in setting out that:

(a) the Act is to protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services,[26] > > (b) people with disability should have certainty that they will receive the support they need,[27] and have the right to determine their own best interests and to engage as equal partners in decisions that will affect their lives,[28] > > (c) reassessment of plans should, so far as reasonably practicable, be directed by the participant,[29] > > (d) the CEO must have regard to the operation and effectiveness of previous plans,[30] > > (e) people with disability should be supported in their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised,[31] > > (f) the CEO may request information, reports and assessments during a reassessment,[32] providers may charge for requested reports,[33] and the CEO may proceed to prepare a SPS before these reports are received so long as a participant has been given a reasonable opportunity to provide them,[34] > > (g) the CEO is to assess risks and safeguards in relation to the participant,[35] and, if necessary, seek expert opinion,[36] > > (h) people with disability should have their privacy and dignity respected,[37] > > (i) a participant's plan must include a reassessment date,[38] and > > (j) the need to adopt an insurance-based approach,[39] properly apply public money,[40] and ensure the financial sustainability of the scheme.[41]

4. The Federal Court has emphasised the importance of applying the objects and principles of the NDIS Act. In WRMF[42] Justices Flick, Mortimer (as the Chief Justice then was) and Banks-Smith said:[43]

... the subject matter of the NDIS legislation is unique, as is its structure: it embeds an approach to the support of persons with disability which was previously non existent. In its structure, it does more than 'ordinary' legislation by incorporating objects and purposes. It incorporates a number of values, which are integral to the legislative scheme. It is always necessary to ensure that constructional choices, and construction, are undertaken paying sufficient regard to the legislative scheme as a whole, for that forms the context for any particular provision ...

5. I am not of the view that the NDIS Act expressly or impliedly places an onus on the Agency in relation to plan reassessments in which supports are reduced. However, the values of the NDIS framework do incorporate a high expectation of the level of support the Agency will provide to participants during the reassessment process. If supports are reduced significantly, particularly where this reduction might involve risks to the participant or others, there is a greater responsibility on the Agency to be proactive in their information gathering so that they (and the Tribunal) can be satisfied that the reassessed level of supports are reasonable and necessary.

1. How a support request is characterised is also important. During the Agency's original reassessment, internal reviews, and throughout this proceeding, the Agency has described the Applicant's request as if the Applicant is seeking a new and increased level of support. From this starting point, it seems a straight-forward proposition that the Applicant should present information to demonstrate that this additional support is reasonable and necessary. This was emphasised in the counsel for the Agency's closing submissions:

... importantly, if there is something we all aren't grasping on the evidence as to why 13 hours is not sufficient, it was incumbent upon Mr. Brown to produce that evidence and have his support workers here in the tribunal explaining what it is that they are doing for 13 hours a day and why it is ... there needs to be another three hours of assistance.

2. This is not the reality of the decision-making that occurred during the reassessment. During reassessment, the Agency concluded that the previous levels of support were no longer reasonable and necessary. It is not accurate to say that the Applicant is requesting an increase and should demonstrate why this increase is reasonable and necessary. When a participant is requesting maintenance of supports previously found to be reasonable and necessary, there is a responsibility on the Agency to base their reassessment on probative information that can be provided to the Tribunal. If that information gathering has not occurred during the assessment and internal review process, there is a responsibility on the Agency to address these information gaps during the Tribunal review process.

1. In making this observation, The Tribunal does not think it is as simple as saying that plan increases are a matter for the Applicant to prove and plan reductions are for the Agency. This would be an overstatement, add an onus that is not there, and create a form of rebuttable presumption that plans should remain the same unless a party can show otherwise. In my view, there is a need for careful consideration of the specific finding that is to be made, what information is necessary to make this finding, and whether one party (or both) should be expected to provide this information. This will be important for situations in which the Tribunal is still left in a state of uncertainty as to whether a particular finding should be made on the balance of probabilities. When there is an equal balance, the Tribunal will need to favour making one finding over another depending on what state of satisfaction needs to be reached for the specific finding in question.
2. When I work through the legislative criteria and rules, I consider there are examples where it will be more likely that one party, or the other, will be better placed and have the main responsibility to provide relevant information so that a decision-maker is satisfied in relation to making a particular finding. For example, in relation to the value for money consideration,[44] a decision-maker needs to be satisfied that the costs of a support are reasonable relative to the benefits achieved. The participant will seek to provide information about both the cost and the benefits of the support. Without this information, the decision-maker is unlikely to be satisfied that the requested support is value for money. The same section includes consideration of whether the costs are reasonable relative to the cost of an alternative support. In relation to alternative supports, the Support Rules[45] add to this by saying that the CEO is to consider whether there are comparable supports which would achieve the same outcome at a substantially lower cost.[46] A participant, or their treatment team, should seek to show what alternatives were considered, but not recommended, and why.
3. However, if the Agency is submitting that there is an alternative that will achieve the same outcome at a substantially lower cost, the Agency should seek to provide information in support of this contention. Without this information, the Tribunal might not be able to be satisfied that the availability of this alternative means that the requested support is not value for money. Deputy President Constance reached a similar conclusion in Mazy[47] and this reasoning has been applied more recently by Senior Member Collins in MKKX.[48] However, Deputy President Humphries reached a different conclusion in BIJD[49] which has been applied by Senior Member Buxton in Charrington.[50] As can been seen from above, I prefer the reasoning in Mazy and MKKX. Duty to assist the Tribunal
4. Both parties have an obligation to assist the Tribunal.[51] The obligation is higher in relation to the party whose decision in being reviewed.[52] The Attorney-General's Department has provided the following guidance to decision-makers on their duty to assist the Tribunal:[53]

The key point ... is that, rather than seeking to defend their original decision in the Tribunal, agencies need to focus on assisting the Tribunal to arrive at the correct or preferable decision. > > ... The 'duty to assist' recognises that there may be additional actions agencies can take in Tribunal proceedings to ensure the process runs smoothly and the right outcome is reached - and that agencies have a duty to take these actions. > > This recognises the position of the Tribunal in reviewing the decision; that is, it considers the matter afresh 'in the shoes' of the original decision maker. This is in contrast to court litigation, which is adversarial and based on the review and defence of decisions. > > Assisting the Tribunal to arrive at the correct or preferable decision may involve taking steps such as: > > • making information easily available to the Tribunal > > • avoiding delays > > • presenting new material where relevant, and > > • providing specialist evidence when it may assist.

5. My view is that both parties could have done more to assist the Tribunal. The Agency did endeavour to assist the Tribunal by offering to arrange a home-based functional capacity assessment with the Applicant. Proceeding with a file review assisted the Tribunal. As outlined at paragraph 44, there are other steps the Agency could have taken to assist the Tribunal. In deciding not to take part in the assessment with an occupational therapist, the Applicant did less to assist the Tribunal. In applying the objects and principles relating to participant privacy and dignity, choice and control, and the direction of reassessments, I consider that the Applicant was entitled not to take part in an assessment arranged by the Agency. However, the Tribunal would have been better assisted by a thorough home-based assessment which the Applicant made himself available for.
6. Much of the Agency's submissions focussed on countering the approach taken by the Applicant. I would encourage the Agency to focus less on problems with an Applicant's evidence and contentions and more on what the Agency can proactively do to assist the Tribunal. This responsibility of the Agency is underscored by the beneficial nature of the NDIS Act and the information and resource advantages of the Agency. While the Applicant was very capable in gathering information and self-advocating, he is still living with a significant disability which will have impacted his capacity to engage fully in the evidence gathering process.
7. An example of an area in which the Agency could have more proactively assisted the Tribunal is in relation to the operation and effectiveness of previous plans as discussed at paragraphs 139 to 143 below. In my view, given that decision-makers must have regard to the operation and effectiveness of previous plans, the Agency should have taken steps to provide information held by the Agency that is relevant to this consideration. When requested, the Agency did provide some limited information in the form of screenshots. These screenshots required further time and submissions to explain their correct interpretation.
8. As will be seen below, with some further information and submissions from the parties, I have been able to reach a level of satisfaction in relation to the matters that need to be considered. Ultimately, the conclusions I have reached below have not turned specifically on whether one party of the other has provided sufficient information to satisfy the Tribunal. The Applicant's position may have been better supported by participating in a functional capacity assessment. Not engaging in that assessment was a risk the Applicant was entitled to take. The Agency's position may have been better supported by completing a more comprehensive risk assessment. When a participant is identified as being at high risk, the Agency's reassessment process would be improved by taking a more considered approach to risk assessment. This would have provided the Tribunal with a better starting point in considering these same factors.

1. Decision-makers are required to have regards to the participant's statement of goals and aspirations and be satisfied that each support will assist the participant to pursue these goals, objectives and aspirations.[54] The Applicant's goals are:

(a) within 12 months, explore alternative SDA properties that are closer to family but remain suitable with support to maintain and enhance independence; > > (b) continue capacity building to live as safely and independently as possible and maintain physical function and wellbeing; > > (c) maintain independence and freedom to choose when and how to engage with family, friends, work and the community; and > > (d) engage more fully with work by accessing assistive technology to expand options and work for longer periods unassisted in an office environment.[55]

2. The Applicant's profile as set out in the SPS may need to be updated as it still refers to the informal supports provided by the Applicant's former spouse and by his father. However, it was clear from the Applicant's evidence and oral submissions that his goals and aspirations remain relevant.

1. During the hearing, the Applicant presented as highly motivated to reduce his dependence on support workers and he was optimistic that this could be achieved with continued rehabilitation. The Applicant says that the January 2022 SPS level of support worker hours being 16 hours per day, at a 1:1 ratio, with OOS was appropriately meeting his goals in relation to independence and safety. The current level of 13 hours does not provide him with the freedom to choose when and how to engage with family, friends, work and the community.
2. The Agency maintains that 13 hours per day of 1:1 support worker hours, with OOS is reasonable and necessary. During the hearing, counsel for the Agency referred to the Including Specific Types of Supports in Plans Operational Guideline[56] and submitted that the level of assistance was in fact more than sufficient. The Agency noted that Part 9 of this guideline deals with personal care supports and says:

Supports to provide assistance with daily personal activities should generally be limited to a maximum of 6 hours per day.

3. The Agency noted that the guideline did allow for greater than six hours depending on the specific support needs. The Agency calculated that, in addition to this six hours, the Applicant required three hours per day when attending therapies, and an hour per day for assistance with other domestic activities. Based on this calculation, on the days that the Applicant attends therapies, the Agency submitted that the Applicant would require 10 hours of support worker assistance, leaving a further three hours to be used by the Applicant as required. Noting the reports that the Applicant could safely be left alone for 2 hours and the availability of OOS, the Agency says that 13 hours of 1:1 support worker hours with OOS provides the Applicant with coverage for his day-to-day support needs as well as flexibility to responded to unplanned activities.
4. The Applicant did not accept this suggestion and said that, in practice, the arrangement of support worker shifts was less flexible than this. As the Agency submitted, the Applicant has not provided any further evidence to support this lack of flexibility. The Applicant also took exception to the Agency's approach in developing a support roster during the hearing as not being an appropriate assessment of the Applicant's capacity and needs.
5. The Agency contended that reduced support worker hours would support the Applicant's goal of increased independence. The Applicant did not agree with this submission. The Applicant maintained that he was not at a stage in his rehabilitation which would safely allow this reduction in support worker hours, regardless of how much he would prefer to be less dependent on support workers. On balance, I find that the Applicant's request to maintain 16 hours per day of 1:1 support workers with OOS does better support his goals and aspirations. In my view, the 13 hours per day with OOS put forward by the Agency does also support these goals, to a lesser extent.

1. I am less persuaded that transport funding will assist the participant to pursue his goals, objectives and aspirations. With the vehicle modifications in place, the Applicant is still dependant on support workers to transfer him in and out of the vehicle, drive the vehicle and set him up at this destination. I do not consider that transport funding will reduce this dependence.
2. Aside from supporting independence, the Applicant also submits that transport funding would assist him with the increased operating costs of his modified vehicle. The Applicant has not provided any information in relation to his financial circumstances and the vehicle's operating expenses are not mentioned in his statement of goal and aspirations.

1. Decision-makers must have regard to relevant assessments conducted in relation to the participant.[57]

1. The Tribunal has several assessments in relation to the Applicant and his needs. The Applicant points to reports provided as part of this previous appeal including:

(a) A Therapy Report from Cerebral Palsy Alliance prepared by Anna Mills (Physiotherapist) and Rachael Filby (Occupational Therapist) dated 20 February 2021; > > (b) An Assistive Technology Assessment Template completed by Nicole Barnes (Physiotherapist) dated 9 July 2021; and > > (c) An Occupational Therapy Support Needs Report from Advance Rehab Centre prepared by Jo-Anne Bennett (Occupational Therapist) dated 8 November 2021.

2. The Applicant also says that the more recent reports from Breaking Boundaries Rehab,[58] and the most recent file review provided by Ms Gatenby, confirm that the Applicant's support needs have not changed since these earlier reports. The Agency agrees that Ms Bennett's report was accurate as at November 2021 but further says that that Applicant's functional capacity has improved since Ms Bennett's report. The Agency says that this improved functional capacity can be seen in the November 2022 Breaking Boundaries Rehab report and in Ms Gatenby's file review. In my view, the Agency's assertions in relation to the Applicant's improved functional capacity are not supported by the reports before the Tribunal. I will go through these reports in some more detail here.

1. The Occupational Therapy Support Needs Report from Advance Rehab Centre prepared by Jo-Anne Bennett in November 2021 is comprehensive report. Although the report is now a few years old, it does provide a helpful baseline for considering the Applicant's support needs and progress. At pages 8 and 9 of Ms Bennett's states that:

James overall needs a substantial level of support, that is, he needs direct support readily available 24 hours. It was estimated that James currently requires 18 hours per day of one to one direct support. This is broken down into 15 hours during the day and 3 hours collectively overnight. He would be safe without direct support for up to 2 hours with access to shared supports in case of emergency. In a model that could accommodate shared supports, James would require access to passive shared supports overnight.

2. Applying an Instrument for Classification and Assessment of Support Needs, Ms Bennett concluded that the Applicant's needs were at the highest support intensity in relation to self-care, requiring extensive and continuous support with eating, drinking, personal care and toileting.[59] Ms Bennett also concluded that the Applicant was a high risk for falls, bumps, pressure injuries, and muscle contractures.[60]
3. Ms Bennett discussed the option of a shared overnight support model and, noting the Applicant's primary working hours were from 5:00pm to 1:00am,[61] recommended the following support model:

James requires 15 hours of 1:1 direct support throughout the day to be able to manage tasks involved in his multiple roles. > > He requires either 3 hours of direct support through the night or 6 hours of shared support. > > He requires support into early hours of the morning 4- nights a week as he regularly works until 1 am and requires support during this period available for positional changes, toileting assistance and incidental supports.[62]

Breaking Boundaries Rehab November 2022 and February 2023 Reports

1. The Agency points to the Applicant's progress as indicated in the November 2022 Breaking Boundaries Rehab report prepared by Hayley Harwood (Exercise Physiologist) and Olivia Creswick (Physiotherapist).[63] On page 5 and 6 of this report the allied health professionals conclude:

James's biggest therapy goal is to gain enough lower limb strength and joint ROM to be able to complete a standing transfer independently. When James is able to achieve this goal, the need for 24hr care would be eliminated and would allow James a huge amount of independence to complete ADL's. In saying this, Jame's safety is of utmost importance, therefore formal Physiotherapy and Exercise Physiology sessions are required and it is not appropriate to expect support workers to achieve mobility goals. In addition, Jame's exercise program needs to be constantly adapted to meet his needs and expectations. Therefore, therapy assistant programs are also not appropriate at this stage. > > James's therapy sessions have been specifically designed to facilitate improvements in lower limb strength, joint range of motion, as well as postural stability and core strength. It is evident that this intervention has been effective in improving his transfers, dynamic sitting balance and maneuvering his body between different positions (prone, supine, sitting, side lying etc), which is of a huge benefit to James's capacity and confidence. Therefore, it is extremely important that these sessions continue.

2. While this report is very positive about progress made, it is also important to understand that this report was prepared in the context of showing that the therapies are effective and beneficial and should continue. It is also very clear that the Applicant's therapy goal to complete a standing transfer independently, while potentially eliminating the need for 24-hour care, is not a goal that had been achieved at that point in time. Likewise, in February 2023, Pip Cave (Head Physiotherapist) at Breaking Boundaries Rehab advised the:

With regular standing and therapy 3x per week, it is anticipated James will be > > able to complete standing transfers in the next 12-24 months.

Australian Specialist Hub File Review April 2024

1. The Agency arranged a file review by Sarah Gatenby (Occupation Therapist) from the Australian Specialist Hub in April 2024. While this was a file review, it a very detailed report which carefully considered the Applicant's rehabilitation history and progress. Ms Gatenby provided the following qualification on page 2 of her report:

The report was completed as a file review only. No face-to-face assessment occurred, nor an interview with the Participant, informal Carers or formal Carers or treating parties. > > Therefore, the opinion provided by the evaluator should only be considered within the context of a file review and responses to questions supplied by the referring party. > > The current treating, support and care should be contacted to provide clarity on the participant's current medical and functional status, treatment and rehabilitation engagement, clinical expectations on future functional gains, housing situation, and future support services

2. Ms Gatenby provided oral evidence at the hearing and both parties asked Ms Gatenby about the limitations of conducting a file review. Ms Gatenby agreed with the Agency that further information from a rehabilitation specialist after 2019 would have assisted, and that Ms Gatenby has not been aware that OOS was now available to the Applicant. In response to questions from the Applicant, Ms Gatenby confirmed that her statement in relation to the Applicant being able to stand in the shower was an error. Ms Gatenby also agreed with the Applicant that a full functional capacity assessment would require observation of the Applicant completing a range of tasks in his home, and a risk assessment.
3. The Agency says that Ms Gatenby's report supports their contention that the gains in functional capacity identified in the Breaking Boundaries Rehab November 2022 report demonstrate that Ms Bennett's November 2021 report is no longer an accurate reflection of the Applicant's functional capacity. The Applicant says that Ms Gatenby's report supports his contention that his support needs have not changed since Ms Bennett's report.
4. Despite the limitations, I found Ms Gatenby's report and evidence helpful. In my view, Ms Gatenby's report does support the Applicant's position in relation to the continuing relevance of Ms Bennett's November 2021 recommendations. Subsequent functional improvements have not significantly changed the Applicant's support needs and Ms Gatenby is clear on this point:

Mr Brown is not able to self-care on his own due to permanent physical limitations as a consequence of Guillain Barre Syndrome. > > He requires the input and physical assistance of a Disability Support Worker x1 for self-care, and there is no evidence on file that assistance with self-care needs have changed since the OT report of 08.11.2021, despite some incremental functional gains achieved through therapeutic rehabilitation.[64]

Conclusion on relevant assessments in relation to support worker hours

1. Overall, I find that the relevant assessments show that the Applicant's support needs remain high. While the Applicant is progressing towards a goal which could reduce his support needs, it is premature at this point-in-time to conclude that his support needs have reduced based on these assessments.

1. The assessments discussed above have little to say specifically about transport funding. Page 8 of Ms Bennett's November 2021 report notes the following in relation to the use of the Applicant's modified vehicle:

• Into transport. Managed - Turny seat into modified vehicle. > > Sits in front seat and MWC goes in rear. > > Driver for modified vehicle required. > > • Out of transport- support of one person to set up wheelchair and assist with slide board transfer to wheelchair. > > • Hoist usage- No hoists used into car > > manage by driver.

2. The Breaking Boundaries Rehab November 2022 and February 2023 Reports do not deal with transport funding. A vehicle modification template was completed by Rachael Filby, Occupational Therapist, in March 2020. Part 4.5 on the template indicated that the Applicant was aware that insurance, repairs and maintenance would be his responsibility. Page 8 of Ms Gatenby's report noted the following:

It is likely that Mr Brown is able to interact with others in social settings once he is set up to do so. For example, he receives physical assistance in and out of a disability-adapted vehicle so he can attend health, work, family, Church, and social appointments. > > ... > > Due to the degree of flexibility Mr Brown requires when booking and meeting with clients, it is likely he would require the full-time availability of a formal Caregiver during business hours to physically assist him leave the house, transfer in and out of a vehicle, drive the vehicle, open and close doors, and navigate unfamiliar terrains and environments when visiting clients for appointments.

3. I have considered the relevant assessments and am the view that they do not demonstrate that the Applicant requires transport funding.

1. For each support, a decision-maker must be satisfied that the support will assist the participant to undertake activities to facilitate the participant's social and economic participation.[65]

1. The information provided indicates that the Applicant requires assistance to be set-up for work or social activities. Once the Applicant is set-up, he can participate in social and work activities.[66]
2. Information provided by the Applicant's accountant indicates he works at least 15 hours per week. The Applicant describes his working hours as full-time. He needs assistance from support workers for any face-to-face meetings. This assistance includes transfers to and from his modified vehicle, driving the vehicle (the Applicant is unable to drive), accessing client premises, and set-up. Similarly, when social activities are at the Applicant's home, he needs assistance to be set-up for the activity. When social activities are at another location he needs assistance with transfers, travel, access, and set-up.
3. The evidence also indicates that, once set-up, the Applicant can be left safely for up to two hours.[67] The combination of 1:1 support workers for 13 hours per day with OOS does facilitate social and economic participation. The Applicant's evidence is that most of this 13 hours is needed for access to treatments, including travel, and assistance with all activities of daily living. I find that funding support workers at a level of 16 hours per day would better assist the Applicant participate in social and economic activities. However, I also find that 13 hours of support workers and OOS does, to a lesser extent, assist the Applicant participate in social and economic activities.

1. I do not consider that transport funding assists the Applicant to undertake activities to facilitate the participant's social and economic participation. As mentioned above, the Applicant remains dependant on support workers for transport. It is the combination of support workers and a modified vehicle that are assisting the Applicant's social and economic participation, rather than transport funding.

1. A decision-maker must be satisfied that each 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.[68]
2. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Support Rules) say more about value for money. In particular, rule 3.1 says that a decision-maker must consider:

(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); > > ... > > (e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides; > > (f) whether the support will increase the participant's independence and reduce the participant's need for other kinds of supports (for example, some home modifications may reduce a participant's need for home care).

1. The NDIS Price Guide describes "Onsite Shared Supports in SDA" as:[69]

This support item provides access to 24/7 assistance for unplanned supports that are not part of a participant's routine daily activities. It includes ad hoc assistance to a participant where incidental or unplanned assistance is required within the SDA dwelling. As a guide, the support provided should not exceed an average of 2.5 hours of direct person-to-person support per day. A participant must be able to wait up to 1 hour for unplanned assistance.

2. The Agency submits that, with the Applicant's improved functional capacity, the OOS model is appropriate in addition to 1:1 support workers to 13 hours per day (as compared to 18 hours per day in the January 2022 AAT order, or 16 hours per day as sought by the Applicant).
3. Following the directions hearings in May and June 2024, the Applicant provided a copy of the SDA service agreement, and the Agency provided a copy of a letter from the Applicant's SDA provider dated 23 November 2022. The service agreement includes an item for unplanned onsite shared supports in SDA but does not otherwise provide further details about what is, or is not, provided under this item. The letter from the SDA provider adds some detail to this and seems to be the basis for the Agency considering a change of circumstances with the commencement of OOS. The Applicant also advised that these onsite supports are shared with all other participants in a ten apartment SDA complex. The Tribunal does not have any further details about the how many onsite support workers are shared across the 10 apartments, information about the frequency of on call requests, or the average response times. All of this information would be helpful in assessing the extent to which the OOS model reduces the need for 1:1 support workers. Based on the information available, it is reasonable to expect that the Applicant is able access onsite on-call supports for up to 2.5 hours per day.
4. Based on the assessments before the Tribunal and the evidence of the Applicant and Ms Gatenby, I am not satisfied that the OOS model is a comparable support which achieves the same outcome as 1:1 support worker assistance. Onsite supports are necessarily limited to the SDA location. The onsite supports cannot assist the Applicant with work, social or therapeutic activities which are offsite. Based on the price guide, the Applicant also needs to be able to wait for up to an hour for this support. Having to wait for an on-call support is not the same as having a support worker on-hand, for example to assist with repositioning or a toilet break.
5. Following the directions hearing in June 2024, the Applicant advised that he uses the onsite support for approximately 20 minutes each evening to assist with transferring to bed. The Applicant also advised that he occasionally required assistance from the SDA provider at other times when his support workers were not rostered on (around 5 minutes per week) or may have cancelled on short notice (around once per month). Based on this, I consider that the Applicant is not achieving the full value for the OOS model. On the current information, the Applicant could utilise the OOS model more. This could allow the Applicant to reduce the amount of onsite support worker hours in his roster and build-up some additional hours to be used more flexibility for unplanned offsite activities. The Tribunal will return to this issue when discussing duplication of supports below.

1. In the Applicant's submission on 10 November 2023, he said:

There is absolutely "value for money" when you look at the fact that when I have no carers, it only takes a single return taxi fare to my favourite pub once per week after hours to consume the maximum Transport Funding - Level 3. To deny my transport funding based on value for money is effectively saying I am not allowed to socialise unless it is during the times I have a paid carer and using my own car. This is an outrageous over-reach in the application of the "value for money" argument.

2. I do not consider that the information before me demonstrates that transport funding is value for money. In the example provided by the Applicant (taking a taxi to a social venue) a support worker would still be required to assist with transfers and set-up. Transport funding does not increase the Applicant's independence or reduce his need for support workers.

Effective and beneficial having regard to current good practice

1. Decision-makers must be satisfied that a support is likely to be effective and beneficial for the participant, having regard to current good practice.[70] Supports Rules 3.2 and 3.3 also say:

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.

1. I have not been provided with any refereed literature or agency learnings. The Applicant's lived experienced indicates that support workers being on-hand, rather than on-call, is more effective and beneficial to him. Being able to utilise these supports offsite also provides him with extra flexibility for work and social participation. Based on the expert opinion available to me and the Applicant's lived experience, I am satisfied that 16 hours of 1:1 support worker assistant per day, with OOS, remains effective and beneficial.

1. I am not satisfied that transport funding is effective and beneficial. As discussed above, I do not consider that transport funding is effective in isolation from access to support workers and a modified vehicle. While there is benefit to the Applicant financially, in my view, direct financial assistance is not what is meant by the composite phrase 'effective and beneficial'.

Families, carers, informal networks and the community

1. Decision-makers must be satisfied that the funding or provision of a support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide.[71] Support Rule 3.4 further says that the following matters are to be considered:

(i) the extent of any risks to the wellbeing of the participant arising from the participant's reliance on the support of family members, carers, informal networks and the community; and > > (ii) the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as: > > (A) the age and capacity of the participant's family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and > > (B) the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and > > (C) the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and > > (iii) the extent to which informal supports contribute to or reduce a participant's level of independence and other outcomes; > > (c) for all participants - the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.

1. The Applicant's informal supports have reduced following separation from his spouse and his father passing away. The Applicant has three adult daughters. In his current SDA, the Applicant is unable to live in same household with his daughters. In the Applicant's oral evidence, he indicated that his daughters do assist with social participation and meals a few times per week. The Applicant has also indicated that he is actively involved in his church community. In my view, it would not be suitable for his daughters or church volunteers to assist with the Applicant's personal hygiene. A spouse, or parent, might be better placed to assist with some of these more personal activities but these informal supports are no longer available to the Applicant. I am not satisfied that that it is reasonable for family or the community to provide additional supports to supplement the OOS model with reduced support worker hours.

1. I am not satisfied that transport funding is reasonable and necessary when taking into account what it is reasonable to expect families, carers, informal networks and the community to provide. Following the directions hearing in June 2024, the Applicant advised that his Church and other community organisations did not provide transport assistance in his circumstances. In my view, it is possible that the Applicant's family, or community organisations, could assist with some limited transport activities. Onsite on-call services could assist the Applicant to transfer in and out of his modified vehicle at the SDA location. Informal supports may be able to assist with transfers at the offsite locations, driving and set-up. However, I would note that these trips would need to be kept short. If the Applicant required assistance with toileting at a venue, for example, this assistance would most appropriately be provided by a support worker.

1. Decision-makers must be satisfied that a support is most appropriately funded or provided through the NDIS, and not more appropriately funded or provided through other general systems of service delivery or support services offered as part of a universal service obligation or required as reasonable adjustments.[72]

1. With regards to health services, the Support Rules say:

7.4 The NDIS will be responsible for supports related to a person's ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment. > > 7.5 The NDIS will not be responsible for: > > (a) the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions; or > > (b) other activities that aim to improve the health status of Australians, including general practitioner services, medical specialist services, dental care, nursing, allied health services (including acute and post-acute services), preventive health, care in public and private hospitals and pharmaceuticals or other universal entitlements; or > > (c) funding time-limited, goal-oriented services and therapies: > > (i) where the predominant purpose is treatment directly related to the person's health status; or > > (ii) provided after a recent medical or surgical event, with the aim of improving the person's functional status, including rehabilitation or post-acute care; or > > (d) palliative care.

2. The June 2023 SPS records that the Applicant spent 505 days in hospital before being discharged. Neither party contended that support workers or onsite shared supports were now more appropriately provided by the health system. I am satisfied that the health system has provided clinical treatment, including acute and post-acute services. Based on the assessments before the Tribunal and the evidence of the Applicant and Ms Gatenby, I am satisfied that support worker hours are appropriate for the NDIS to provide as they are related to the Applicant's ongoing functional impairment and enable him to undertake activities of daily living.
3. With regards to employment, the Support Rules say:

7.17 The NDIS will be responsible for: > > (a) supports related to daily living that a person would require irrespective of whether they are working or looking for work (including personal care and support and transport to and from work); and > > (b) frequent and ongoing supports that assist a person with disability to take part in work where the person has work capacity and is unlikely to be able to find or retain work in the open market, including with the assistance of employment services; and > > (c) individualised assistance to support a person with disability to transition into employment, where these support needs are additional to the needs of all Australians and specifically required as a result of a person's functional impairment, eg training on workplace relationships, communication skills, dress, punctuality and attendance, and travelling to and from work. > > 7.18 The NDIS will not be responsible for: > > (a) work-specific support related to recruitment processes, work arrangements or the working environment, including workplace modifications, work-specific aids and equipment, transport within work activities and work-specific support required in order to comply with laws dealing with discrimination on the basis of disability; or > > (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).

4. The Applicant runs his own business and is self-employed. Neither party contended that support workers were more appropriately provided by the Applicant's business or other employment services. Some additional detail about participant's working in their own business is included in the NDIS Work and study supports operational guideline: [73]

We may be able to fund supports you need because of your disability to help you work in your own business. This is where you work for yourself and not a company or business. You earn your income directly from your own business, trade or profession. There are a number of programs that can help you if you want to work in your own business. Learn more about supports to help you start your own business. Generally, the kinds of supports we can and can't fund if you are self-employed are similar to what is explained in the sections above.

We can fund the extra support you need that isn't provided by your employer or a Disability Employment Service. For instance, we could fund: > > • personal care supports while you're at work > > • occupational therapist assessments to see how your disability affects how you work > > • extra on-the-job training and support with your work tasks you need because of your disability > > • support to help you manage your behaviour or complex needs at work > > • support with other things to help you work. For example, we might fund modification of tools to suit your disability related needs. > > We can't fund things at work that your employer must provide. This includes any reasonable adjustments your employer needs to make so your job suits your needs. This means we don't fund: > > • wages, insurance or superannuation > > • recruitment > > • changes your employer needs to make to recruitment or interviews to make sure they are fair for everyone > > • changes to buildings where you work, like accessible bathrooms > > • equipment, computers or software to help you do your job > > • travel as part of your work > > • support, training and skill development that your employer needs to provide all employees > > • changes your employer provides to your work to make sure you do it safely and productively, that are considered reasonable adjustment > > • changes to your work to make sure you have the same opportunities and conditions as everyone else, (for example reasonable adjustments).

6. This guideline also refers to non-NDIS resources and support services including:
   • Workforce Australia,[74]
   • Australian Human Right Commission,[75]
   • Job Access, Employment Assistance Fund,[76] and
   • NSW Government Business Advice and Support.[77]
7. Following the directions hearing in June 2024, the Applicant advised that these programs do not fund support workers. I have considered the publicly available information about what is offered in these programs and agree that this information does not indicate that these programs would provide support workers.
8. It is less clear to me what the responsibilities of a self-employed business operator are in relation to workplace modifications and work-specific aids and equipment. Overall, based on the assessments before the Tribunal and the evidence of the Applicant and Ms Gatenby, I am satisfied that support worker hours are appropriate for the NDIS to provide as they are related to daily living and would be required irrespective of whether the Applicant was working. These are frequent and ongoing supports that assist the Applicant take part in work. I am not satisfied that these supports are more appropriately provided by the Applicant's business or other employment services.

1. In relation to transport, Support Rule 7.18 says:

The NDIS will not be responsible for: > > (a) work-specific support related to recruitment processes, work arrangements or the working environment, including workplace modifications, work-specific aids and equipment, transport within work activities and work-specific support required in order to comply with laws dealing with discrimination on the basis of disability; or > > (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).

2. As the Applicant runs a business, I consider that it is reasonable for business travel to be funded as a business expense. It is clear from the rules and guidelines discussed above that the NDIS is not responsible for transport within work activities.
3. There may also be non-NDIS programs that can assist with the Applicant's self-employment. While these programs do not seem to provide support worker assistance, there may be financial assistance available for businesses and self-employers.[78] Following the directions hearing in June 2024, the Applicant advised these non-NDIS programs did not fund employment related transport. However, the Applicant has not provided any further information about steps he has taken to access these programs. On balance, I do not consider that transport funding is most appropriately provide by the NDIS. The NDIS is appropriately funding support workers which are required for the Applicant's transport needs in his modified vehicle.

1. Decision-makers must apply the NDIS rules made for the purposes of section 35.[79] In addition to the parts of the Support Rules discussed above, these rules also include further requirements in relation to: conducting a needs assessment; general criteria for supports; and supports that will not be funded.

1. The Support Rules require decision-makers to conduct a needs assessment:

4.1 When deciding whether or not to approve a statement of participant supports under section 33 of the Act, the CEO is to: > > (a) identify the participant's goals, aspirations, strengths, capacity, circumstances and context; and > > (b) assess activity limitations, participation restrictions and support needs arising from a participant's disability; and > > (c) assess risks and safeguards in relation to the participant; and > > (d) relate support needs to the participant's statement of goals and aspirations. > > ... > > 4.2 When following the method in paragraph 4.1, the CEO is to make assessments of the matters that relate to the decision using any appropriate tools that are specified in operational guidelines in accordance with this Part from time to time.

2. As mentioned above, at the directions hearing in May and June, the Tribunal asked the Agency to confirm whether any risk assessments had been undertaken in relation the Applicant during the reassessment. Initially, the Agency was reluctant to provide this information on the basis that they were unable to download and disclose such information due to its sensitive and confidential nature. The Applicant confirmed that he consented to his personal information being disclosed. The Tribunal asked the Agency to provide further reasons as to why this information should not be provided to the Tribunal as required by section 37 of the AAT Act, or whether a non-disclosure order would be sought by the Agency in relation to this risk assessment. On 5 July 2024, the Agency provided screenshots of a risk assessment conducted as part of the reassessment process to both the Applicant and the Tribunal. The screenshots indicate that a full risk assessment is to be completed with the next scheduled plan review.[80] The screenshots also indicate that there were 'no signs' that the Applicant was vulnerable or unsafe at home or in the community. This assessment seems at odds with the last detailed risk assessment was in Ms Bennett's November 2021 report. In April 2024, Ms Gatenby was not of the view that the Applicant's needs had changed based on the Applicant's incremental functional gains.
3. The operational guidelines have not specified any tools for conducting a risk assessment. It would be helpful for decision-makers (including the Tribunal) to be provided with further guidance on how to approach to task of conducting this risk assessment. I note that the Department of Finance has published a Commonwealth Risk Management Policy in support of section 16 of the Public Governance, Performance and Accountability Act 2013 which requires Commonwealth agencies to establish and maintain appropriate systems for the management of risk. [81] Included in the policy is a Risk Toolkit which provided detailed guidance on conducted risk assessments. A systematic approach to considering the likelihood, consequences, and controls for risks such as set out in the Risk Toolkit would provide decision-makers with a more robust approach to managing risk.
4. In my view, at the time of the Agency made its decision, it was premature to say that the Applicant's risk profile had changed such that support worker hours could be safely reduced. The risk assessment conducted by the Agency does not seem to engage with the high risk of falls, bumps and pressure sores identified in Ms Bennett's report.[82] Especially where a participant has been identified at being at high risk of harm, such as for the Applicant, it is important for the Agency to properly assess the risks and safeguards in relation to the participant. It is only with the benefit of hindsight, given the Applicant's subsequent limited use of OOS as well as the absence of any incidents of harm, that I can conclude that the current combination of support worker hours and OOS is providing appropriate safeguards for the Applicant. To be clear, I would not have reached that conclusion based on the information that was before the Agency decision-makers at the time of the original and internal review decisions. As observed earlier, it is also clear that the Tribunal is required to consider the current circumstances and is not limited to the information that was before the Agency decision-makers. Overall, I am satisfied that OOS with 13 hours of support worker hours appropriately addresses the risks to the Applicant.
5. However, in relation to transport funding, I am less persuaded that the risks to the Applicant have been properly considered. In the Applicant's example of taking a trip to a licensed venue, I have some concerns that, without a support worker in attendance, there would be an increased risk to the Applicant of falls, especially when interacting with other patrons who are consuming alcohol. I am not satisfied that the risks to the Applicant through using transport funding in this way have been appropriately addressed. In my view, the Applicant would need a support worker or an informal support to accompany him on such trips to reduce the risk of harm to the Applicant.

1. Support Rule 5.1 states that a support will not be provided or funded under the NDIS if it duplicates other supports delivered under alternative funding through the NDIS.
2. There is some duplication between OOS and support worker hours. While there are key differences, in terms of whether the support workers are on-hand and whether they can leave the SDA premises, there is still some cross-over in the nature of these supports. Currently, the Applicant does not appear to be fully utilising the OOS as he is typically only using this service for 20 minutes each evening and around once per week as needed. This means there is around two hours of unutilised OOS on most days. Funding two hours of onsite 1:1 support workers per day would be a duplication.
3. This duplication does not exist when support workers being available for off-site activities is considered. The Applicant says that availability for support workers offsite would provide him with great flexibility for unplanned social and work activities outside of his SDA. I agree, to an extent, but am less convinced that three hours of 1:1 support workers per day is reasonable and necessary to achieve this flexibility. Currently, the Applicant arranges his roster so that there is a one-hour gap without support workers during the day and he has indicated that it is around once per week that he needs OOS to assist him during this hour. If the Applicant had a two-hour gap instead, for example, he may be able to retain an hour per day which could be added together and used flexibility at a later point in time for an offsite activity.
4. In relation to transport funding, in the Applicant's submission on 10 November 2023, he said:

There is no duplication because funding for Capital items are completely different to funding for Operating items by definition. > > There is no duplication because when I have no 1:1 supports (ie. no 1:1 for 11 hours out of 24 hours per day, 45.8% of the time) there is no support to access the community.

5. Referring to the vehicle modification template from March 2020, the Agency submitted that:

... the purposes of the vehicle modification supports it has previously funded - that is, the Applicant is able to use his modified vehicle for his transportation needs. > > ... Transport Support is duplicative of the vehicle modification request and therefore does not represent value for money in the absence of further probative evidence to the contrary. The vehicle modification support was expressly granted on the basis that it would reduce the Applicant's need for private transport.

6. In oral submissions, the Agency further contended that that the transport guidelines do not apply to the Applicant as he is able to travel independently. Rule 3.5 refers to Schedule 1 for matters that the NDIS will and won't be responsible for. In relation to transport, Schedule 1 says:

7.21 The NDIS will be responsible for: > > (a) supports for a person that enable independent travel, including through personal transport-related aids and equipment, or training to use public transport; and > > (b) modifications to a private vehicle (ie not modifications to public transport or taxis); and > > (c) the reasonable and necessary costs of taxis or other private transport options for those not able to travel independently.

7. Based on rule 7.21(c), the Agency submitted that the NDIS will only be responsible for taxis and other private transport for those that are not able to travel independently. The Agency says that the Applicant can travel independently due to his vehicle modifications. I do not agree with this submission for two reasons. First, the list in Rule 7.21 is inclusive, so the NDIS can be responsible for vehicle modifications and taxis or other private transport. The availability of a modified vehicle does not exclude the funding of taxis etc. Second, the Applicant is not able to travel independently. Even with vehicle modifications, he is reliant on a support worker for transfers in and out of the vehicle and he requires a driver. I do not interpret the support rules as excluding the funding of taxis for a person in the Applicant's situation.
8. However, there is a logical connection between vehicle modifications and transport funding needs. The guidelines refer to this connection. For example, the Vehicle modifications and driving supports guideline dated 12 April 2023 says on page 13:

We will look at vehicle modifications together with all of your transport needs, and consider the best funded supports for your circumstances. The vehicle modification funding may reduce your need for other supports, for example transport funding.

9. Also, the Including Specific Types of Supports in Plans: Operational Guideline - Transport says:[83]

When considering whether a proposed transport support represents value for money, the NDIA will compare the costs of transport to the overall costs of alternative supports which may provide a similar level of independence or reduce a participant's future needs for supports. For example, vehicle modifications.

10. While the Applicant submits that he meets the requirements for Transport funding, these requirements do need to be considered together with other guidance, such as those relating to vehicle modifications. On balance, I agree with the Agency that transport funding duplicates the vehicle modification support. However, I also consider that this duplication only exists if support workers are sufficient to allow for some unplanned travel as requested by Applicant.

1. Support Rule 5.1 also states that a support will not be provided or funded if:

(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. > > 5.2 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.

2. The Agency did not submit that the Applicant's support workers are a day-to-day living cost. It is clear to me that the need for support workers is directly attributable to the Applicant's disability.
3. The Agency does however submit that the need for private transport to and from a bar might not be attributable to the Applicant's disability, in that the Applicant might not be able drive if he was drinking.[84] Given that the Applicant cannot drive, this submission is misplaced. However, it does highlight the issue as to whether transport funding for occasional unplanned social trips is a cost that everyone might have, regardless of a disability. In my view, in some circumstances, such occasional trips might properly be considered a day-to-day living expense. In the Applicant's circumstances, he is still dependant on support workers for transport and is unlikely to be able to safely use taxis or private transport without support workers to assist him with access and set-up at his destination. Transport funding does not assist with making such trips more flexible for the Applicant.
4. Occasional unplanned trips are not the only basis on which the Applicant is seeking transport funding. In his letter dated 3 April 2023, the Applicant said:

Just for my medical requirements, I use my vehicle 4 times per week (5 hours and 140km per week) to access appointments with my physiotherapist, other treating clinicians and to access equipment and services designed to build my capacity. This alleviates the need for the Physio and others to attend my home and therefore to charge travel through the NDIS plan. Basic maths suggests that transport funding is far cheaper than therapists billing to travel to me. > > In addition to this, I use my vehicle 7 days a week for community access and work well in excess of the Policy requirement for a minimum 15 hours work per week. There are no other Policy rules or published operating guidelines that prevent my eligibility for this funding. There is no definitive articulation of exactly what the funding is specifically designed to cover that would rule me out. > > ... > > Further to this, if I did not have a disability, I would not require the size of car which has to be big enough to accommodate me and my wheelchair. If I did not have a disability I would be in a far smaller car, which would be far more cost effective to run (less fuel, maintenance, insurance, etc.). > > My disability is literally costing me many thousands of dollars per year more in transport costs than everybody else (including those others with disability who can access a regular vehicle).

5. The Applicant is already funded for additional insurance costs which are associated with his vehicle modifications. If there are also additional running and maintenance costs which are ancillary to the vehicle modifications and use of the vehicle for the Applicant's disability needs then, it seems to me, that the Applicant might be able to claim this a separate support. If the Applicant was to make such a claim, it would be reasonable to expect the Applicant to provide records which quantify the difference between these additional expenses and what would be expected for average use of a car for private purposes. As noted above, work-related trips would need to be separately accounted for and covered by the Applicant's business. This level of information has not been provided to me. However, I am satisfied that these costs do not need to be covered under transport funding.

1. Decision-makers must have regard to the principle that participants should manage their plan to the extent that they wish to do so.[85] The Applicant says that reduced support worker hours leaves him with less flexibility to manage his plan. During the Applicant's evidence, and following the directions hearing in June 2024, the Applicant says that moving carer hours at short notice to do something spontaneous is 'near impossible' as carers have other commitments. The Agency submitted that there was no other evidence provided to substantiate these difficulties. On balance, I accept that it is likely that the Applicant would find it more difficult to arrange suitable support workers on very short notice. In this way, the Applicant's request to maintain 16 hours per day of 1:1 support workers with OOS does provide the Applicant with more flexibility to manage his plan. However, I am also of the view that the Applicant would be able to increase his use of OOS in a way which would provide him with some additional flexibility to manage the support worker hours in his plan in the way he wishes.

Operation and effectiveness of previous plans

1. Decision-makers must have regard to the operation and effectiveness of any previous plans of the participant.[86] The Applicant submits that the level of support in the January 2022 SPS was effective and that the funding in the January 2023 and June 2023 SPS's have not been sufficient.
2. Following the directions hearings in May and June 2024, at the request of the Tribunal, the Agency provided plan utilisation screenshots for the January 2022, January 2023 and June 2023 SPSs. This information in these screenshots is quite limited in terms of having regard to the operation and effectiveness of previous plans. Following the directions hearings in August 2024, the Agency provided the following explanation as to interpreting the data in the screenshots:

For the period 27 January 2022 to 24 January 2023, the Screenshots show that Mr Brown had unspent funding in the categories of Consumables, Assistance with Daily Life and Assistance with Social and Community Participation. At the end of the plan period, Mr Brown had a total of $102,045 remaining in total which was allocated but not spent. > > For the period 25 January 2023 to 12 June 2023, the Screenshots show that Mr Brown utilised all of his funding in the categories Consumables, Assistance with Daily Life and Transport. > > For the period 13 June 2023 to 12 June 2025, the Screenshots show that Mr Brown is on track to utilise all of his funding in the categories Consumables, Assistance with Daily Life and Assistance with Social and Community Participation by the end of the plan period (and potentially before the end of the plan period).

3. In response, the Applicant submitted that the unspent $102,045 in the January 2022 SPS was due to the commencement of shared overnight support in his ten apartment SDA in May 2022. At this time, the Applicant cancelled his non-shared overnight support staff. On 28 August 2024, the Applicant provided an email to the Tribunal confirming this cancellation. This email was sent to the SDA provider on 7 May 2022 and referred to the Applicant's night staff being cancelled on 18 May 2022.[87] The Applicant submits that the cost-effectiveness of the shared overnight supports compared with the 1:1 support model explains this apparent underspend. As the cancellation occurred in the first half of the January 2022 SPS, but the plan was not updated at that time, I accept that this is a reasonable explanation of the underspend. The Agency did not oppose this conclusion.
4. Having regard to the operation and effectiveness of previous plans in relation to support worker hours, I consider that:
   • the Applicant utilised his previous plan funding effectively, and
   • with the provision of overnight shared support in his SDA, the Applicant was able to cancel his 1:1 overnight support worker hours.
5. The screenshots provide less information in relation to transport funding given this funding was not included in the January 2023 and June 2023 SPSs. For the January 2022 SPS, the Applicant used $2,653.53 of the $2,726.03 approved for transport. This indicates that most of the transport funding was utilised in the January SPS.

1. As can be seen, there are many considerations that need to be balanced together in assessing whether supports are reasonable and necessary. I have concluded that transport funding is not a reasonable and necessary support. There is a duplication with the vehicle modification supports that have been provided. Travel within work (as opposed to getting to and from work) is more properly covered as an employer or business expense, possibly with the assistance of non-NDIS programs. If, due to the Applicant's disability, there are additional expenses related to the Applicant's modified vehicle then the Applicant can seek this support separately as he has done in relation to the disability related component of his vehicle insurance. The Applicant is still reliant on support workers to use his modified vehicle.
2. This conclusion in relation to transport funding also connects to the Applicant's need for offsite support worker hours. I consider there is some unmet support needs for the Applicant in relation to unplanned offsite activities. However, I do not consider that returning the Applicant's funding to 16 hours of 1:1 support worker hours per day is reasonable and necessary. In reaching this conclusion, I have found:
   • The relevant assessments confirm that the Applicant's support needs remain high despite some incremental improvements in his functional capacity.
   • The Applicant's informal supports have reduced considerably.
   • The Applicant has effectively utilised the support worker hours available in his previous plans and has reduced these support worker hours when he has felt able to do so.
   • There is some duplication between the availability of 2.5 hours of OOS per day and the Applicant's use of support workers for onsite activities.
   • The provision of OOS is not a comparable support which achieves the same outcome, especially in relation to offsite activities.
   • OOS has proved effective in mitigating some risks to the Applicant and the Applicant can safely rely on OOS for additional onsite assistance during the day.
   • The level of support worker hours requested by the Applicant would support his goal in having greater choice and control over when to participate in unplanned social and economic activities.
   • It is reasonable for family and community to assist with some unplanned social activities.
   • It is also more appropriate that the Applicant's business and non-NDIS programs provide funding for offsite work-related travel.
   • Having support workers stand-by for unplanned offsite activities does not represent value for money.
3. I accept that spontaneity is an important goal for the Applicant and would contribute to his mental wellbeing. In balancing the factors above, I consider that a smaller adjustment can achieve an improvement for the Applicant in this regard. Adding back a further two hours of 1:1 support workers per week would, in my view, be sufficient to meet this goal. The Applicant will have flexibility as to when to use these additional two hours. He could, for example, add one hour per day, two days per week, so that there was not a break in his 1:1 support worker hours during the day on these days. Alternatively, he could add a two-hour shift once per week, a four-hour shift once per fortnight, or arrange his hours in another suitable way.
4. In conclusion, I find that an additional two hours per week of 1:1 support worker hours are reasonable and necessary supports to be funded in the Applicant's SPS. I am not satisfied that it is reasonable and necessary to include transport funding in the Applicant's SPS.

Pursuant to section 43(1)(b) of the Administrative Appeals Act 1975 (Cth), the Tribunal varies the decision under review made on 13 June 2023 such that, under section 33 of the National Disability Insurance Act 2013 (Cth), the statement of participant supports specifies:

(a) The reasonable and necessary supports that will be funded include an additional two hours per week of support worker assistance at a ratio of 1:1.

(b) The date by which the CEO must reassess the plan is 12 months after the date of this decision (reassessment date).

(c) All other reasonable and necessary supports in the statement of participant supports are to be funded on a pro-rata basis until the reassessment date; and

(d) The management arrangements for the plan are not changed and those arrangements apply until the reassessment date.

With respect to Transport Funding, pursuant to section 43(1)(a) of the Administrative Appeals Act 1975 (Cth), the Tribunal affirms the decision under review.

1. I certify that the preceding 147 (one hundred and forty-seven) paragraphs are a true copy of the reasons for the decision herein of Member J Toohey

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

[1] Report from Dr Michael Pollack dated July 2019.

[14] National Disability Insurance Scheme (Supports for Participants) Rules 2013.

[15] See for example NDIS Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 - Second Reading Speech at https://ministers.dss.gov.au/speeches/14261

[16] See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.

[17] McGarrigle v National Disability Insurance Agency [2017] FCA 308, at 38.

[18] See Azizi and Minister for Home Affairs (2018) 162 ALD 422.

[20] See Novosel v Comcare [2017] FCA 722.

[21] See Linwood v Repatriation Commission [2016] FCA 90; (2016) 148 ALD 542 at 33.

[22] See Re Gerda Ilse Holbrook and Australian Postal Commission [1983] AATA 40 at 23.

[23] See McDonald v Director-General of Social Security (1984) 6 ALD 6.

[24] See Comcare v Power [2015] FCA 1502; (2015) 149 ALD 286.

[25] See Rigoli v Commissioner of Taxation [2016] FCAFC 38.

[33] NDIS Pricing Arrangements and Price Limits 2023-24 Version 1.3, page 23.

[42] National Disability Insurance Agency v WRMF [2020] FCAFC 79.

[45] National Disability Insurance Scheme (Supports for Participants) Rules 2013.

[47] Mazy and National Disability Insurance Agency [2018] AATA 3099 at 58-59.

[48] MKKX and National Disability Insurance Agency [2024] AATA 805 at 178.

[49] BIJD and National Disability Insurance Agency [2018] AATA 2971 at 50. See also, Schwass and National Disability Insurance Agency [2019] AATA 28 at 45, and to a lesser extent McLaughlin and National Disability Insurance Agency [2021] AATA 496 at 144-146.

[50] Charrington and National Disability Insurance Agency [2022] AATA 1160 at 8.

[53] Office of Legal Services Coordination: Guidance Note 1 The Administrative Appeals Tribunal Act 1975: Obligation to assist the Tribunal https://www.ag.gov.au/sites/default/files/2020-03/Guidance-note-1-administrative-appeals-tribunal-act-1975-obligation-to-assist-the-tribunal.pdf

[54] NDIS Act sectio99ns 33(5)(a) and 34(1)(a).

[56] https://www.ndis.gov.au/about-us/operational-guidelines/including-specific-types-supports-plans-operational-guideline (current as at 2 November 2022)

[58] See paragraphs 10 and 19 above [update in final].

[59] I-CAN v5 (Arnold & Riches, 2013) referred to on pages 9 to 11.

[66] See for example, page 8 of the report prepared by Ms Gatenby.

[67] See para 50 above, Bennett report November 2021 page 8 and 9 [update in final]

[69] NDIS Pricing Arrangements and Price Limits 2023-24 Version 1.3 (published 7/02/2024). Page 49.

[73] Accessed at https://ourguidelines.ndis.gov.au/supports-you-can-access-menu/social-and-community-participation/work-and-study-supports dated 20 December 2023

[74] https://www.workforceaustralia.gov.au/individuals/coaching/starting-business

[75] https://includeability.gov.au/resources-people-disability/self-employment-people-disability

[76] https://www.jobaccess.gov.au/employment-assistance-fund-eaf

[77] https://www.nsw.gov.au/business-and-economy/business-advice-and-support

[78] See https://includeability.gov.au/resources-people-disability/self-employment-people-disability

[80] Risk assessment dated 5 July 2024.

[81]https://www.finance.gov.au/government/comcover/risk-services/management/commonwealth-risk-management-policy

[82] Report by Ms Jo-Anne Bennett dated 8 November 2021

[83] See section 12 https://www.ndis.gov.au/about-us/operational-guidelines/including-specific-types-supports-plans-operational-guideline/including-specific-types-supports-plans-operational-guideline-transport (current as of 9 March 2021)

[84] Paragraph 35(d) of the Agency's Updated Statement of Issues, Facts and Contentions dated 22 April 2024.

[87] Email from Applicant dated 7 May 2022.