Drake v Minister for Immigration and Ethnic Affairs

National Disability Insurance Scheme Act 2013 (Cth) ss 33, 34, 100, 209

National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth) ss 11, 12, 13, 14

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) rr 5.1, 5.2, 7.19, 7.20, Schedule 1

BIJD and National Disability Insurance Agency [2018] AATA 2971

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

LWVR and National Disability Insurance Agency [2021] AATA 4822

Madelaine and National Disability Insurance Agency [2020] AATA 4025

McGarrigle v National Disability Insurance Agency [2017] FCA 308; (2017) 252 FCR 121

QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189

Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

1. The Applicant, Ms Fiona Charrington, seeks review of a decision made by a delegate of the Chief Executive Officer ("CEO") of the Respondent National Disability Insurance Agency on 6 January 2021 pursuant to section 100 of the National Disability Insurance Scheme Act 2013 (Cth) ("the NDIS Act"). Her application was considered by the Tribunal and a hearing took place on 14 and 15 February 2022, by video link. Written submissions were provided after the hearing by the Respondent on 1 March 2022 and by the Applicant on 7 March 2022.

2. The Applicant, a 53-year old woman who has retinitis pigmentosa, is a participant in the National Disability Insurance Scheme ("NDIS").[1] The Applicant's conditions have caused deterioration of her eyesight such that she is now legally blind and her symptoms continue to degenerate.[2] The Applicant also has glaucoma, anxiety, depression, attention deficit disorder, asthma, irritable bladder and reflux.[3]

3. The Applicant currently lives in a ground floor apartment provided through the Brisbane Affordable Housing Company, for which she receives a subsidy on the market rent.[4] She has funding approved in her plan for an assistance dog but has not yet had a suitable dog matched as a result of her needs and current living arrangements.[5] The Applicant had funding in her plan for 2 hours per week for domestic assistance, 6 hours per month for self-care activities and 15 hours per week for community access until,[6] in February 2022, following a remittal by the Tribunal to allow for re-consideration, certain funded supports were increased. The Applicant now has access to the following additional supports:[7]

(a) increase in 1:1 support from 21.5 hours per week to 40 hours per week for meal preparation/delivery, cleaning/personal domestic activities, self-care and community access;

(b) 20 hours of orientation and mobility training;

(c) 50 hours of support coordination (Level 3);

(d) 20 hours of support coordination (Level 2); and

(e) additional 15 hours for occupational therapy for a home modification assessment.

4. The Applicant requested a review, under subsection 100(2) of the NDIS Act, of the decision to approve a plan without including funding for Specialist Disability Accommodation ("SDA"). The outcome she sought was for her plan to include funding for SDA suited for her disability. On 6 January 2021, the reviewer confirmed the original decision under subparagraph 100(6)(a) of the NDIS Act. This confirmation of the original decision is the decision under review.

5. The issues for consideration on review are, therefore, whether funding for the support of suitable SDA should be included in the Applicant's approved statement of participant supports pursuant to subsection 33(2) of the NDIS Act, and whether she requires other reasonable and necessary supports that relate to her disability.[8] To this end, the Applicant now seeks the following additional funded supports:[9]

(a) plan co-ordination to assist in sourcing SDA;

(b) 68.8 hours each week (in total) of funding for person-to-person support until such time as the Applicant moves to SDA and has an Assistance Dog;

(c) 35 hours each week (in total) of funding for person-to-person support after the Applicant moves to SDA;

(d) 20 hours of orientation and mobility training;

(e) one hour of waxing every 4 weeks;

(f) one hour of podiatry every 4 weeks;

(g) one hour of psychology with a psychologist of her choosing every 4 weeks; and

(h) two hours of exercise physiology each week.

6. The Tribunal's task is to stand in the shoes of the Respondent and make the correct or preferable decision on the material before it.[10] In particular, in the present statutory context, is it the correct or preferable decision to approve, vary, or modify the supports as set out in the Applicant's plan.[11]

7. In order to specify that a support should be included in the statement of participant supports approved in the Applicant's plan under subsection 33(2) of the NDIS Act, the Tribunal must have regard to the matters set out in subsection 33(5) of the NDIS Act and determine whether it is satisfied that the support is a "reasonable and necessary support" in accordance with the criteria in subsection 34(1) of the NDIS Act. The word "reasonable" is informed by the criteria set out in subsection 34(1) of the NDIS Act, although its meaning is not exhausted by these factors. In relation to how the CEO's function works in practice, Mortimer J said in McGarrigle v National Disability and Insurance Agency [2017] FCA 308 ("McGarrigle"):[12]

...the text and context of s 33(5)(c), read with s 34(1) indicate that the CEO (or the delegate or Tribunal) must either be satisfied that a support has the character of being a reasonable and necessary support, or that it does not. Once a support is identified and described... then the question for the CEO (or the delegate or Tribunal) is whether he or she is satisfied that support, as identified, is reasonable and necessary for that particular participant.

8. The Tribunal is to be positively satisfied that the criteria have all been met in order to approve that disputed support for inclusion in the Applicant's statement of participant supports.[13]

9. The Applicant provided a written statement of her lived experience and her evidence on housing-related issues, dated 26 March 2021,[14] and also gave sworn evidence during the hearing.

10. The Applicant provided the Tribunal with a thorough understanding of her degenerative condition which has affected her vision since first diagnosed in 2001.[15] She explained that the optic nerve is degenerating, and this is leading to a narrowing in her field of vision. In the last ten years or so, a "salt and pepper" effect to her vision has started to impact her ability to undertake close work, and she explained this by giving the example of reading, where it is unclear to her whether a comma or full stop is present due to the granulated effect upon her vision.[16] By 2006, her vision had narrowed, and acuity had dropped to the point where she would no longer drive.[17] She later accepted a guide dog and explained that these factors together had led to family violence and the breakdown in her marriage.[18]

11. The Applicant stated that her family supports are limited and that family members had struggled to accept her disability.[19] Her youngest son had been very supportive, and lived with her for a time, but was now living elsewhere.[20] She did not have contact with her mother or father and would make the effort herself to travel to see her other children.[21]

12. Extensive evidence was provided by the Applicant as to the way in which her impaired vision has impacted her when at home.[22] The Applicant stated that, to date, she has largely sought to keep these impacts concealed from others.[23] She explained difficulties with self-care including everyday issues such as showering, toileting, choice of clothing, hair care and applying make-up together with tasks such as cutting nails and hair removal.[24] She also explained that she has concerns with her presentation to the world as she is unsure if she may have body odours from not washing, or from toileting issues, and whether her appearance is clean and appropriate.[25] Her toileting issues can become exacerbated if she misses her medications and this can lead to further need to clean herself and launder bed linens.[26] Issues with the shower include bumping her head or body, slipping on excess water outside the shower cubicle because she must use a shower chair and must reach for a towel.[27]

13. The Applicant relies on pre-packaged and prepared foods when she eats at home as she is not able to safely prepare and cook food.[28] The Applicant has adapted to safety issues related to boiling the kettle by using a coffee pod machine and will sometimes enjoy food prepared by carers if knives or cooking are required.[29]

14. The Applicant gave evidence about a number of injuries she had sustained when outside her home, either when with a support worker or unaccompanied.[30] She stated that she enjoys walking as exercise and to assist her mental health, but that a series of injuries from 2019 onwards has impacted her ability to undertake this activity.[31] She also stated that she cannot attend a gym with a support worker as they did not have indemnity insurance to assist her with using weights.[32] She mentioned a past accident at the gym in which she and another patron were both injured when she tripped.[33] The Applicant stated that she regularly walks or catches a bus, unaccompanied, to the shops and to Southbank, where she undertakes hydrotherapy up to three times per week, although she stated that she had recently "pull it back" from this activity due to irritation of a lower back injury.[34] She stated that she uses support workers "o_n Wednesday and Saturdays for company... to maybe spend some time talking with me or watching Netflix or going or our walks or maybe just going to a local café for a coffee_".[35] The Applicant also stated: "if I had more hours in my plan, a support worker would be coming with me everywhere"[36] and that she would "love" more support worker hours.[37]

15. The issue of how the Applicant uses her existing funds for support work was explored during the hearing. She does not have a support worker present whilst working, three days each week, between 6am and 2pm.[38] Her evidence painted the picture of reasonably well planned, but independent, days spent setting up her work, eating meals at her desk, taking breaks when she will "wander around the unit" and taking rest breaks when needed.[39] On days when she is not working, and a support worker is to attend from 9am, the Applicant will prepare and eat breakfast independently, shower should she so choose, and get dressed. The Applicant explained that she used her support worker hours purely for community access, and not for self-care activities.[40] She explained how she had regarded and utilised the support workers funded in her plan:[41]

My support workers are not allied health professionals. They are young boys who are hired by an organisation to do things like community access, take me to medical appointments, go for walks with me. Help me with my shopping. I would not in a million years have a shower in front of them. I would not, in a million years, ask them to... [undertake personal or intimate tasks]... I would not in a million years ask them to do my personal grooming, brush my hair, do my makeup - any of that. I do not believe that's appropriate at all. Nor do I believe it's appropriate to ask the young man who's a stranger to do those sorts of things. [some words paraphrased]

16. When asked, the Applicant confirmed that she was aware that she was seeking funding for those activities, but that she was unaware that a level of funding for self-care was already included in her funded supports.[42] She was also unaware whether a support worker with appropriate qualifications could accompany her to the gym but stated that a support worker had been accompanying her on long walks for exercise when her health allowed.

17. The community access activities the Applicant undertakes with her support worker include going to movies, markets, shops and out to eat.[43] The Applicant also stated that she uses her support workers for company, including to sometimes just watch Netflix together at her home. The Applicant will travel, with a support worker, to the homes of her children on some Saturdays, ordinarily in the support worker's vehicle, and will attend a peer support group meeting once a month, accompanied by a support worker.

18. Sources of the Applicant's income, which totals about $2,100 per fortnight, include the disability insurance pension and supplements and income from her part-time employments, which she undertakes on-line, from home, with some accommodations and technology to assist.[44] She identified particular regular expenses, other than rent, of about $400 per fortnight during the hearing,[45] and noted in written submissions provided after the hearing these did not include "regular day-to-day expenses such as groceries, toiletries, cleaning products, household products, clothes, shoes, accessories, or repairs and maintenance of items, let alone any allowance for basic socialising or entertainment"[46] although she did not identify the amount she ordinarily spent on those additional items. The Applicant contended that her budget allowed for no more than $250 in weekly rental costs.[47]

19. Ms McKeogh assessed the Applicant at her home via video link on 3 September 2021. Ms McKeogh reported, on 13 September 2021,[48] that the Applicant's son had resided with her until recently, and that the Applicant currently worked two days per week.[49] The Applicant's current living situation did not meet her needs due to issues with the position in the complex, the lift, and issues within the property including the lighting.[50] The Applicant's condition is degenerative and likely to deteriorate in future.[51]

20. Ms McKeogh reported that the Applicant requires support from a guide dog, supervision and physical assistance from support workers, assistive technology and equipment, various home modifications and suitable housing to perform her Activities of Daily Living, including and her Personal Activities of Daily Living. Ms McKeogh reported if the Applicant had all these things in place that she would require a lot less support than she currently does.[52] Ms McKeogh considered, at the time of writing her report, that the Applicant's disability result in a very high need for person-to-person support, either immediately available or constant, for a significant part of the day, and recommended SDA for the Applicant.[53]

21. Ms McKeogh prepared a supplementary report dated 9 February 2022, in which she summarised the supports she regarded as reasonably necessary to assist the Applicant.[54] In this report Ms McKeogh noted that the Applicant had successfully adapted to a deterioration in her vision and had become independent with self-care and some other tasks.[55]

22. Ms McKeogh gave evidence consistent with the view expressed in her supplementary report during the hearing.[56] Ms Keogh gave evidence to the effect that she had recommended 67.2 hours per week of support workers be funded for the Applicant.[57] However, she also accepted, quite reasonably, that if the Applicant had not been using her support workers to assist her when she was setting up for, or engaged in, employment, that this figure could be reduced by 16 hours per week.[58] Similarly, if the Applicant was not using support workers for self-care (as she had previously reported to Ms Keogh when her earlier report was prepared) then her evidence was that she would require about two hours each day for self-care. Ms McKeogh noted in her supplementary report that the Applicant required assistance.[59] Further, Ms McKeogh stated that the Applicant would "probably just required some access to the community on occasion, not all the time",[60] and estimated that 8 hours of community access per week, plus two hours per week (averaged) to visit family and four hours per week to access necessary shopping, would be reasonable until she had the benefit of an assistance dog, at which point that need would likely reduced.[61] Ms McKeogh noted that the Applicant is largely independent in the area of self-management.

23. The overall effect of this evidence is that, as at the time of the hearing, the Applicant had a need for support worker for about 37 hours each week, and that this was likely to continue until a suitable guide dog was found, at which point the need for support workers would likely reduce following a reasonable period of adjustment.[62] The proposed 37 hours were for the self-care tasks of toileting, showering and dressing, of approximately 14 hours per week (two hours each day); for other self-care support, of about nine hours per week, and for mobility, of 14 hours per week.[63]

24. The Tribunal notes that the Applicant has funding for a guide dog included in her approved statement of participants supports, and that this has been the case since 2020.[64] The material before the Tribunal indicates that it is taking significant time to match a suitable dog.[65] At the time of the hearing the Applicant had funding in her plan for approximately 40 hours per week of support work. The Tribunal further notes that the Applicant's approved statement of participant supports includes funding for 15 hours of occupational therapy for the purpose of home modifications assessment. This assessment had not taken place as at the time of the hearing.

Bashir Ebrahim OAM, Orientations and Mobility Specialist / Service Development Lead, Vision Australia

25. In Mr Ebrahim's report dated 1 July 2019 he stated that the Applicant is a long cane user and attended specialist orientation and mobility assessment.[66] Mr Ebrahim recommended: the Applicant should proceed with an application for UltraCane and further recommended that the Applicant attend a two-day refresher orientation and mobility long cane training.[67]

26. Mr Lopez's report (dated 23 March 2020) stated that the Applicant had been attending cognitive behaviour therapy with the aim of addressing psychological issues in the context of challenges associated with accommodation arrangements due to increased accessibility problems.[68] Mr Lopez stated that the Applicant reported that she had been forced to move into temporary accommodation. Mr Lopez reported: the Applicant's symptoms were consistent with those of adjustment disorder with mixed anxiety and depressed mood, and Applicant's emotional ability will greatly depend on her ability to maintain her independent lifestyle in an accessible area that supports her independence and in a unit that allows her to house her guide dog.[69]

27. On 8 May 2020 Ms Kevan provided a report in which she stated that the Applicant has degenerative retinitis pigmentosa.[70] Ms Kevan reported that the Applicant has extremely limited central vision and has been diagnosed as legally blind since 2006.[71] She explained that the Applicant experiences anxiety and depression associated with her extreme vision impairment that she lives alone and has no access to informal supports.

28. Ms Kevan recommended SDA for the Applicant as it was not expected that informal supports could be developed to the extent that SDA is not warranted and she required a dwelling that provides the visual cues, lighting and interior/exterior design of space that would enable her to safely and independently access her home environment.[72]

29. Ms Kevan opined that the Applicant had extremely reduced capacity for self-care, self-management and mobility, and very high person-to-person support needs.[73] Ms Kevan also recommended that the Applicant be provided a Guide Dog.[74]

30. There was no information before the Tribunal to suggest that Ms Kevan had assessed or treated the Applicant after the May 2020 report and she was not called to give evidence during the hearing.

31. Mr Barry conducted an SDA assessment of the Applicant, dated 16 September 2020, in which he reported: the Applicant has resided in a range of rental accommodation since 2008.[75] She was assisted by a Guide Dog until 2011 when the dog retired. Her accommodation (at the time of the assessment, at Newstead) was unsuitable. Mr Barry recommended: SDA design category: Improved Liveability No OOA SDA building type: Apartment, 2 bedrooms, 1 resident SDA location: Queensland Statistical Area Level 4.[76]

32. Mr Barry gave evidence at the hearing. He had produced for the Tribunal a supplementary report, dated 13 February 2022, that attempted to give some guidance to the Tribunal as to the potential costs of modification of existing properties and attempted to quantify in dollars the decrease in funded participant supports that would likely be achieved if the Applicant was granted SDA.[77]

33. Dr Barkley provided a report on 10 March 2020 in which he commented on the progression of the Applicant's disability.[78] Dr Barkley reported: "the Applicant reported difficulties in mobility and also in her activities of daily living some injuries related to her poor vision," and recommended mobility training.[79] There was no information before the Tribunal to suggest that Dr Barkly had assessed or treated the Applicant after the March 2020 report and he was not called to give evidence during the hearing.

34. Mr Barltrop provided a report, dated 14 June 2021, in which he stated the Applicant's vision in her right eye had declined.[80] Mr Barltrop reported that the Applicant's vision demise indicated that she required a long term housing solution, with consideration to minimising her fall risk and ease of mobility.[81] Mr Barltrop was not called to give evidence during the hearing and the Tribunal notes that his evidence, within his field of expertise as an optometrist, is of limited utility in the determination of the issues before the Tribunal.

Ned Higgins, the Applicant's support coordinator

35. The Applicant's support coordinator provided an undated housing market overview, in late March 2021, based on his experience as a support coordinator and his personal experience.[82] Mr Higgins provided a general overview of the private housing market and public and community housing.

36. Mr Higgins provided an addendum report on 20 July 2021, in which he reported that the Applicant enjoys making independent decisions and he only steps in when required.[83] He stated, that while working with the Applicant and investigating SDA, he and the Applicant looked at a number of private housing options including within the National Rental Affordability Scheme which were not suitable or within the Applicant's financial means.[84] The Applicant has been experiencing an increase in anxiety and panic from her housing in Newstead and requested help in finding a new housing option.[85] He stepped in and discussed, with the property manager at Brisbane Housing Company in consultation with the Applicant, a suitable housing option that would fit the guidelines of Guide Dogs Queensland. The Applicant is unable to access the public housing system again unless all opinion within the community housing have been exhausted and public housing advised there is no prioritisation and a very long waitlist. The Applicant has received assistance to make her current housing option accessible through helping her to obtain assistive technology (smart lighting and Google home) to help her navigate more freely.[86] The Applicant has experienced a rather large change in her vision to date and this has been documented recently in a report making the Applicant's current home harder to navigate day to day.[87]

37. Mr Higgins gave evidence during the hearing in which he confirmed that the assistance he had provided to the Applicant in re-locating to another home had been limited to looking for homes with a weekly rent of no more that $250 and making enquiries within the community housing network, but that no formal request on her behalf had been made to the Department of Housing.[88]

38. Mr Higgins stated that the Applicant was very independent, and his involvement in managing her affairs occurred only when she asked him to step in.[89]

39. The National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth) ("SDA Rules"), made pursuant to the powers in section 209 of the NDIS Act, provide for relevant considerations that are to be taken into account in determining whether such funding is reasonable and necessary.

40. In McGarrigle, Mortimer J explained the role of the Rules, in reflecting ministerial policy and constraint, as follows:[90]

The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) to (7) constrain the rule-making power to preserve the federal characteristics of the NDIS The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Rules) are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.

41. The SDA Rules are to be read as a qualification to the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) ("Supports Rules"), which also have statutory force under section 209 of the NDIS Act, insofar as those rules determine the responsibilities of the scheme with respect of housing and community infrastructure. The starting point, in rule 5.1(d) of the Supports Rules, is that a support will not be funded if it relates to day-to-day living costs. Rent is expressly specified as an example of such a day-to-day cost. The exception, in rule 5.2 of the Support Rules, is living costs, together with ancillary costs, that are incurred by a participant solely and directly as a result of their disability support needs.

42. Schedule 1 to the Support Rules provides guidance as to whether a support is "most appropriately funded through the NDIS" as is required by paragraph 34(1)(f) of the NDIS Act. With respect to housing and community infrastructure, rules 7.19 and 7.20 of the Support Rules provide:

(a) supports to assist a person with disability to live independently in the community, including by building their capacity to maintain a tenancy, and support for appropriate behaviour management; and

(b) home modifications for accessibility for a person in private dwellings; and

(c) home modifications for accessibility for a person in legacy public and community housing dwellings on a case-by-case basis but not to the extent that it would compromise the responsibility of housing authorities to develop, maintain and refurbish stock that meets the needs of people with disability; and

(d) user costs of capital in some situations where a person requires an integrated housing and support model and the cost of the accommodation component exceeds a reasonable contribution from individuals.

7.20 The NDIS will not be responsible for:

(a) the provision of accommodation for people in need of housing assistance, including routine tenancy support and ensuring that appropriate and accessible housing is provided for people with disability; or

(b) ensuring that new publicly-funded housing stock, where the site allows, incorporates Liveable Housing Design features; or

(c) homelessness-specific services including homelessness prevention and outreach, or access to temporary or long term housing for participants who are homeless or at risk of homelessness; or

(d) the improvement of community infrastructure, ie accessibility of the built and natural environment, where this is managed through other planning and regulatory systems and through building modifications and reasonable adjustment where required.

43. The Support Rules, which amplify section 34(1)(f) of the NDIS Act, therefore provide that the NDIS will not fund rent, even where that would assist in those in housing crises, unless the need arises solely and directly as a result of their disability support needs. The Department of Housing and, in the Applicant's case, community organisations, have a role in such service delivery to the Applicant. Therefore, the evidence before the Tribunal about the Applicant's search for a new home, and the difficulties she may face on a limited budget and in a tight rental market, do not address directly the relevant statutory criteria for access to funding for SDA. The SDA Rules stipulate the criteria for the provision of accommodation for participants who require specialist housing solutions, and who meet the criteria set out in those rules. Where those criterial are not met, the proper application of rule 5.1(d) of the Supports Rules provides that rent will not be funded under the as it relates to day-to-day living costs.

11 Eligibility to receive support for specialist disability accommodation

A participant is eligible to receive support for specialist disability accommodation under the National Disability Insurance Scheme if the CEO is satisfied that:

(a) the participant:

(i) has an extreme functional impairment (see section 12); or

(ii) has very high support needs (see section 13); and

(b) the participant meets the SDA needs requirement (see section 14).

12 When a participant has an extreme functional impairment

1 A participant has an extreme functional impairment if:

(a) the impairment results in extremely reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:

(i) mobility;

(ii) self-care;

(iii) self-management; and

(b) the participant has a very high need for person-to-person supports in undertaking the activity even with assistive technology, equipment or home modifications.

2 For the purposes of assessing whether a participant has an extreme functional impairment, the CEO may have regard to:

(a) any assessment or examination conducted in relation to the participant, including any assessment or examination requested by the CEO under paragraph 36(2)(b) or 50(2)(b) of the Act; and

(b) the daily support requirements of the participant; and

(c) any assessment tool specified by the CEO for the purposes of this paragraph; and

(d) any other matters that the CEO considers appropriate.

13 When a participant has very high support needs

1 A participant has very high support needs if:

(a) the participant has lived in specialist disability accommodation for extended periods and living in that accommodation has impacted on the capacity of the participant to transition to alternative living arrangements and support; or

(b) the participant has a very high need for person-to-person supports, either immediately available or constant, for a significant part of the day and either:

(i) there are limitations in the availability, capacity or capability of the participant's informal support network or risks to its sustainability; or

(ii) the participant is at risk or poses a risk to others, and that risk could be mitigated by the provision of specialist disability accommodation, having regard to the participant's response to risk and the interaction of the participant with the environment.

2 For the purposes of assessing whether a participant has very high support needs, the CEO may have regard to:

(a) any assessment or examination conducted in relation to the participant, including any assessment or examination requested by the CEO under paragraph 36(2)(b) or 50(2)(b) of the Act; and

(b) the daily support requirements of the participant; and

(c) any assessment tool specified by the CEO for the purposes of this paragraph; and

(d) any other matters that the CEO considers appropriate.

14 When a participant meets the SDA needs requirement

1 A participant meets the SDA needs requirement if, when compared to other supports alone, combined specialist disability accommodation and other supports would:

(a) better assist the participant to pursue the goals, objectives and aspirations set out in the participant's statement of goals and aspirations; and

(b) be more effective and beneficial, where possible, in:

(i) mitigating or alleviating the impact of the participant's impairment upon the participant's functional capacity; and

(ii) preventing the deterioration of the participant's functional capacity; and

(iii) improving the participant's functional capacity; and

(iv) maintaining or promoting the participant's ability to build capacity, including in the medium or long term; and

(v) maintaining or promoting the participant's opportunities to develop skills; and

(c) if the participant has very high supports needs - be more effective and beneficial, where possible, in:

(i) reducing the participant's future needs for supports which might be required due to inappropriate accommodation; and

(ii) assisting the participant to pursue goals related to life opportunities and life transitions; and

(d) if the participant has an extreme functional impairment - be more effective in providing the participant with stability and continuity of support; and

(e) represent better value for money.

2 For the purposes of paragraph (1)(e), regard must be had to the following matters if the participant has very high support needs:

(a) whether combined specialist disability accommodation support and other supports would be likely to substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;

(b) the cost of providing the participant with supports needed to live in accommodation other than specialist disability accommodation, taking into account:

(i) whether those supports may be shared with other participants; and

(ii) limitations of the participant's informal support network.

48. It is the Applicant's position that she meets the criteria for SDA in that she has very high support needs under section 13 of the SDA Rules and extreme functional impairment under section 12 of the SDA Rules. She further submits that she meets the SDA needs requirement in section 14 of the SDA Rules. Thus, she says that the provision of funding for SDA is a "reasonable and necessary" support.

49. The Respondent does not dispute the fact that the Applicant is functionally impaired in a range of areas, and that she requires the range of supports that have been funded to date, but submits that she does not meet the criterial that would permit the funding of SDA.

50. The Tribunal has considered the submission, made by the Respondent, that the SDA Rules should be considered within the context of the investigations and findings of the Productivity Commission in its report, Disability Care and Support, Report No 54, 31 July 2011, which preceded the introduction of the NDIS Act. In particular, the Respondent noted the findings that supported accommodation for those with a disability was in short supply and submitted that SDA was designed for a limited cohort of persons.

51. In LWVR and National Disability Insurance Agency [2021] AATA 4822, the Tribunal (constituted by Justice McEvoy) considered similar submissions of the respondent agency as to the financial sustainability of the scheme:[91]

"At least in the abstract, these submissions have much to commend them. Although decisions must be made on the basis of the individual circumstances of the Scheme participant, and "hard lines" cannot be drawn (NDIA v WRMF [2020] FCAFC 79; (2020) 276 FCR 415, [142]-[143] (Flick, Mortimer and Banks-Smith JJ)), plainly resources are not unlimited. Difficult judgments will often need to be made as to how limited health funds can best be allocated to the maximum advantage of the maximum number of recipients of those funds: see, in a different context, R v Cambridge Health Authority (Ex parte B) [1995] EWCA Civ 49; [1995] 2 All ER 129 at 137 (Sir Thomas Bingham MR). This is obviously so in the context of the administration of the Scheme under the NDIS Act."

52. The Tribunal is to apply the relevant legislation, including the SDA Rules, which comprehensively address the criteria to be satisfied in order for a participant to access this support. The relevant "context" for the determination of this question is sections 33 and 34 of the NDIS Act and the relevant rules. In particular, in this regard, the Tribunal notes that it is relevant to consider paragraphs 34(1)(c) and (f) of the NDIS Act, and paragraph14(1)(e) of the SDA Rules.

53. The starting point for consideration is the eligibility criteria in section 11 of the SDA Rules which requires the participant to meet the "needs requirement" in section 14 of the SDA Rules, and to demonstrate either extreme functional impairment (section 12 of the SDA Rules) or very high support needs (section 13 of the SDA Rules).

54. A participant can meet the "needs requirement" only if all of the criteria in section 14 of the SDA Rules are met, including that SDA would represent better value for money than the other funded supports when compared to other supports alone.[92] The Tribunal is to have regard to whether SDA would be likely to substantially improve the life stage outcomes for, and be of long-term benefit to, the participant and to consider the alternative cost of providing necessary supports outside of SDA.[93] This necessarily invites a cost comparison between life with and without SDA.

55. The evidence available to the Tribunal on the question of value for money was not sufficient to demonstrate what the cost comparison might be, or how this might impact on "value" to be achieved in the funding of the Applicant's supports. Mr Barry opined that it would cost more to modify the Applicant's home than it would to provide SDA.[94] However, this opinion was provided on assumptions as to the likely cost and need to replicate modifications that were not founded in any reliable factual matrix. Mr Barry himself accepted that the assumptions as to these matters were "broad" and "primitive".[95] The Tribunal found this attempt to quantify the relative cost as of little utility in its consideration.

56. It is not the case that, in order for a support to provide "value for money", it must necessarily cost less than other supports alone, but the comparison of costs in an issue to which the Tribunal must have regard. The benefit to the participant, the impact upon their capacity to reach their goals and the relief from reliance on other supports must sensibly be considered together.

57. In this case, the evidence demonstrates that the Applicant is an independent woman who is highly adaptable and capable of managing her own affairs. She has access to funding for an assistance dog, and this funding should be taken into account in determining whether SDA delivers "value for money". It is unclear, having regard to the available evidence, to what extent the Applicant and her support co-ordinator, Mr Higgins, have worked to ensure that she is connected with a provider for this important support, which is surprising given how critical an assistance dog would seem to be in the pursuit of the Applicant's goals. The Applicant also has access to funding for a home modifications assessment, but this assessment has not yet taken place. The fact that neither of these supports is yet in place may be indicative of a somewhat single-minded approach on the part of the Applicant to securing SDA. An evidential deficit exists when comparing life with and without SDA because the Applicant has not yet had the opportunity to live with the other funded supports. In the circumstances of this case, it is not possible to compare with real meaning the value for money of the sought support of SDA with other funded supports when both the cost of the home modifications, and the impact that both an assistance dog and suitable modifications to her home may have, is not yet known.

58. As to whether SDA would be effective and beneficial, in the particular respects traversed in paragraph 14(1)(b) of the SDA Rules, each of those respects is cumulative. It is not possible to identify on the evidence, for example, how moving into SDA will prevent the deterioration of the Applicant's functional capacity, or maintain or promote her ability to build capacity, as neither the Applicant nor the medical or allied specialists provided direct evidence on this issue. The focus of that evidence was the benefits to the Applicant of having specially designed accommodation, and the Tribunal does not doubt that such accommodation would better meet the needs of the Applicant than the rental accommodation in which she currently resides. However, the threshold created by the "needs requirement" is demonstrably high and cannot be met by evidence of benefit or preference alone.

59. As the Tribunal is satisfied that the Applicant has not satisfied the needs requirement in section 14 of the SDA Rules, it is not necessary to determine whether she has demonstrated either extreme functional impairment or very high support needs as the requirement to meet section 14 of the SDA Rules is cumulative to the requirement to meet at least one of the tests in sections 12 or 13 of the SDA Rules. However, for completeness, the Tribunal will traverse the other elements of the SDA criteria.

60. The functional impairment test in section 12 of the SDA Rules must relate to the domains of mobility, self-care or self-management, and must qualify as "extreme". The deliberate deployment of the word "extreme", when contrasted with the word "substantially" used elsewhere in the statutory scheme, must be given a meaning consistent with a more serious, or heightened, level of impairment. The word "extreme" is to be given its ordinary meaning, being "of the highest degree".[96]

61. As to mobility, the Applicant spends entire days within her current home without support, other than her cane when it is utilized. Further, she regularly attends the local shops, her medical appointments and hydrotherapy by independently mobilizing and either walking or taking public transport. The Respondent accepted that the Applicant's functional capacity to mobilise is substantially reduced. She requires the use of a long cane to mobilise. The Applicant gave evidence that she does walk and catch public transport alone. However, Ms McKeogh opined that she required about 16 hours per week of assistance from support workers to access the community.

62. The Tribunal found the evidence of Ms McKeogh in this respect, and in general, to be reliable and considered. The Tribunal notes that the earlier report of Ms Kevan varied from that of the view expressed by Ms McKeogh during the hearing. The variation is partially explained by the various adaptions to vision loss that the Applicant has achieved since Ms Kevan expressed her views. To the extent that a divergence in the opinions of Ms McKeogh and Ms Kevan is not explicable by those adaptations by the Applicant, the Tribunal prefers the evidence of Ms McKeogh and has given less weight to the earlier opinions of Ms Kevan which were not tested by the parties during the hearing.

63. Given that the Applicant has sustained injuries in a number of serious falls, particularly in areas outside her local areas and busy environments, such as markets, the Tribunal accepts that the Applicant's mobility is impaired. However, the concept of mobility, as it is used in the legislative setting of the NDIS, does not extend to the ability to move around in the community for the purpose of accessing service but, rather, how they might mobilise once they have reached that service.[97] This test is acutely relevant when the context in which the assessment of participant's functional impairment to mobilise is part of the consideration of access to SDA. The level of impairment of mobility in the community, particularly when that is said to be demonstrated by a risk to the participant's safety from falling, will not be addressed by the grant of SDA. The support of SDA does not address that aspect of the impairment save for the prospect of risks on ingress and egress from the participant's home. The Applicant gave evidence that the lift in her building does not operate as it should, but her further evidence as to her regular accessing of the community on her own demonstrates that this has not provided any significant hurdle in her mobility when transitioning from her home to the community.

64. In any event, the Applicant's evidence, supported by that of Ms McKeogh, demonstrates that she has been able to adapt and maintain a level of independence in her mobility, both at home and in her local community, despite her degenerative condition. Accordingly, the Tribunal is not satisfied that her function impairment as to mobility is "extreme".

65. As to self-care, the Applicant does require help in this area, and would no doubt benefit from more assistance, from better suited support workers, than she has currently been accessing. The Applicant's own evidence is that she simply would not use the support workers she has to assist in her self-care. However, she also stated that she sometimes bumps herself at home and is at risk from slipping on a wet floor when showering without assistance. The Tribunal notes that the Applicant's evidence is consistent with the evidence of Ms McKeogh, occupational therapist, to the effect that the Applicant had successfully adapted to a deterioration in her vision and had become more independent with self-care and some other tasks as she has adapted to change.[98] The Tribunal accepts that the Applicant does require some support with her self-care. However, in circumstances where the Applicant has funded supports for self-care that she has elected, to date, not to utilize, and where she has become independent is some of those tasks, the Tribunal is not satisfied that her function impairment as to self-care is "extreme".

66. The Applicant's evidence, that of Ms McKeogh and that of her support co-ordinator, Mr Higgins, is consistent with the conclusion that she is independent, or largely so, in self-management. She may require assistance, but not assistance of the highest degree. The Applicant does not meet the functional impairment test in section 12 of the SDA Rules.

67. The support needs test in section 13 of the SDA Rules requires the participant's need for person-to-person supports to qualify as "very high". The Tribunal has already noted that the Applicant has been selective in the deployment of the person-to-person supports available to her. Importantly, she stated that, although she submitted that she should be found to have very high self-care needs, she would not "in a million years" ask her current network or supports to undertake personal or intimate tasks on her behalf, of to support her to do these.[99] To date, she has managed these tasks herself. There is no doubt she would benefit from utilising increased person-to-person support workers with whom she is comfortable to support her in these aspects of her daily life. The Applicant's evidence demonstrates that she can, and often does, spend entire days without any support. When support is available, she will attend to her own self-care and maximize time spent her a support worker to access the community and for company. Ms McKeogh's evidence is consistent with a finding that the Applicant's current funding permits support for self-care to be funded for two hours each day in accordance with her recommendations. The Tribunal is not satisfied, however, that the Applicant's need for person-to-person supports are "very high" as these needs are not for immediately available or constant supports for a significant part of each day.

68. The Tribunal has found that the Applicant has not met the criteria for SDA to be funded in her approved statement of participants supports.

69. The Tribunal has found that the SDA criteria is not met in this case. Therefore, the supports sought by the Applicant to locate and orientate to new accommodation cannot be funded. In the alternative, the Applicant sought additional support co-ordination in order to locate an alternative home for her. However, the Applicant has demonstrated that she can manage her personal affairs. The Tribunal accepts that the Applicant experiences difficulties with her current living arrangement. The decision under review (as remade in February 2022) provides the Applicant with an additional 50 hours of support coordination which will allow her to identify a support coordinator who has the skill, knowledge and experience to assist her in finding suitable home and living supports. There is no evidence before the Tribunal that the Applicant cannot attend to this everyday task herself, or with the assistance of an appropriate support coordinator. The Tribunal is not satisfied that the seeking of new rental accommodation is related to her disability.

70. The Applicant has been provided with an UltraCane an advanced primary mobility aid. The Applicant gave evidence that she is not presently using this mobility aid and has never been given training for it.[100] The decision under review (as remade in February 2022) provides the Applicant with an additional 20 hours of orientation and mobility training that may be used by the Applicant to attend training. The Tribunal is satisfied that this support is now met.

71. The Tribunal accepts the evidence of Ms McKeogh, occupational therapist, as to the Applicant's need for person-to-person support. The 40 hours per week of support worker funding included in the decision under review is slightly in excess of this, but this will allow for increased community access or assistance with meal preparation and delivery, cleaning and personal domestic activities, and self-care in the tasks of nail care, waxing or other chosen hair removal, which the Tribunal accepts would cause difficulties for the Applicant, having regard to her impairment. Further allowance would amount to duplication.

72. There is insufficient evidence demonstrating that the Applicant requires two hours of exercise physiology each week. This support may be beneficial to the Applicant. However, the Tribunal cannot reach a level of satisfaction, based on the available evidence, that this support is related to the Applicant's disability and are both reasonable and necessary. Further, there is no evidence that the Applicant has utilised any of her funding for support workers to assist her in exercising or attending a gym, or compelling evidence as to why this could not now occur.

73. The Applicant sought additional funding for one hour a week of psychology. The Applicant's previous and current plans allow for fortnightly sessions of psychology, and weekly sessions of other therapy. There is insufficient available evidence that the Applicant's current funded supports are insufficient to be used flexibly psychology or other allied health providers, such as occupational therapy, as required.

74. On this basis, the Tribunal considers that the supports specified to be funded in the statement of participant supports to be approved in accordance with the decision under review (as remade on 22 February 2022), but no other supports, are reasonable and necessary. That is the correct and preferable decision in this case.

75. The Tribunal affirms the decision under review pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for decision of Senior Member Buxton.

Representative for the Applicant: Mr L Fairbank

[1] Exhibit H4, Respondent's Statement of Facts, Issues and Contentions, [5]-[7].

[2] Exhibit H7, Report prepared by Bashir Ebrahim OAM regarding supports, page 2.

[3] Exhibit H4, Respondent's Statement of Facts, Issues and Contentions, [5].

[5] Ibid, [29]; Exhibit H25, Report of Justine McKeogh, occupational therapist, at "Section 4 - Risks".

[6] Exhibit H4, Respondent's Statement of Facts, Issues and Contentions, [30].

[7] Respondent's Closing Submissions dated 1 March 2022, [5]-[6].

[8] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189, [7].

[9] Applicant's Closing Submissions dated 7 March 2022, [44].

[10] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, [37]-[38], [45]-[46] (Kirby J), [99] (Hayne and Heydon JJ), [140]-[143] (Kiefel J); Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.

[11] McGarrigle v National Disability Insurance Agency [2017] FCA 308; (2017) 252 FCR 121 ("McGarrigle"), [85].

[13] BIJD and National Disability Insurance Agency [2018] AATA 2971 at [49].

[14] Exhibit H18, Applicant's housing statement and addendum.

[15] Transcript, P-23, lines 32 - 47; P-24, lines 1 - 47; P-25, lines 1 - 41.

[19] Transcript, P-24, lines 18 - 29 and 39 - 47; P-25, lines 1 - 8.

[24] Transcript, P-25, lines 43 - 47; P-26, lines 1 - 40.

[29] Transcript, P-26, lines 43 - 47; P-27, lines 1 - 7.

[31] Transcript, P-28, lines 38 - 47; P-29, lines 1 - 5.

[35] Transcript, P-34, line 47; P-35, lines 1 - 3.

[43] Transcript, P-34 to P-35; P-64 to P-66.

[44] Respondent's Closing Submissions dated 1 March 2022, [57]; Transcript, P-40, lines 3 - 35.

[45] Respondent's Closing Submissions dated 1 March 2022, [57]; Applicant's Closing Submission dated 7 March 2022.

[46] Applicant's Closing Submission dated 7 March 2022, [31] - [32].

[48] Exhibit H25, Report of Justine McKeogh, occupational therapist.

[50] Ibid, Section 5 - BHCL Housing.

[51] Ibid, Section 7 - Specific Questions.

[52] Ibid, Section 7 - Specific Questions at [2].

[53] Ibid, Section 7 - Specific Questions.

[54] Exhibit H27, Supplementary Report of Justine McKeogh, occupational therapist.

[55] Exhibit H27, Supplementary Report of Justine McKeogh, occupational therapist; Transcript, P-139, lines 15 - 20.

[56] Transcript, P-138, lines 17 - 47; P-139, lines 1 - 9.

[57] Transcript, P-136, lines 13 - 21; Exhibit H25A, Appendix C to the report of Justine McKeogh, occupational therapist.

[58] Transcript, P-136, lines 23 - 39; P-137, lines 13 - 27; Exhibit H25A, Appendix C to the report of Justine McKeogh, occupational therapist.

[59] Exhibit H27, Supplementary Report of Justine McKeogh, occupational therapist, page 4; Transcript, P-138 line 35 - 47 and P-139, lines 1 - 2.

[61] Transcript, P-140, lines 20 - 34; P-145, lines 10 - 16.

[62] Transcript, P-144, lines 11 - 47; P-145, lines 1 - 5.

[63] Respondent's Closing Submissions dated 1 March 2022, [29] and [38];

[64] Exhibit H1, T Documents T8, T9 and T10.

[65] Exhibit H25, Report of Justine McKeogh, occupational therapist, Appendix E: Guide Dog Letter; Exhibit H28, Supplementary letter from Guide Dogs Qld.

[66] Exhibit H7, Report prepared by Bashir Ebrahim OAM regarding supports.

[67] Exhibit H7, Report prepared by Bashir Ebrahim OAM regarding supports.

[68] Exhibit H11, Report from Jorge Lopez, psychologist.

[70] Exhibit H1, T Documents T1A, Report of Kimberley Kevan (occupational therapist).

[73] Exhibit H1, T Documents T1A, Report of Kimberley Kevan (occupational therapist), Recommendations for NDIS Funding.

[75] Exhibit H2, Supplementary T Documents, ST1 Report of Greg Barry, Senior Consultant, Specialist Disability Accommodation Services, attaching:, ST1.1 Queensland Statistical Areas, Level 3 & 4 (309 and 316).

[76] Ibid, Part 2: Summary of Conclusions.

[77] Exhibit H32, Supplementary Report Greg Barry, dated 13 February 2022.

[78] Exhibit H1, T Documents T3, Letter Dr Michael Robert Barkley (ophthalmologist).

[79] Exhibit H1, T Documents T3, Letter Dr Michael Robert Barkley (ophthalmologist).

[80] Exhibit H20, Report of Glen Barltrop, optometrist.

[82] Exhibit H19, Statement of Ned Higgins, Applicant's support coordinator (filed on 26 March 2021).

[83] Exhibit H22, Further statement of Ned Higgins, Applicant's support coordinator.

[88] Transcript, P-124, lines 10 - 47; P-125, lines 4 - 9.

[90] McGarrigle [2017] FCA 308, [43].

[91] LWVR and National Disability Insurance Agency [2021] AATA 4822, [12].

[92] National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth) paragraph 14(1)(e).

[94] Exhibit H32, Supplementary Report Greg Barry, dated 13 February 2022.

[96] Macquarie Dictionary (online at 11 May 2022) 'extreme' (noun - def 8).

[97] Madelaine and National Disability Insurance Agency [2020] AATA 4025, [104] - [105].

[100] Transcript, P-47, lines 27 - 31.