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[2022] AATA 276
General information, not legal advice.
Administrative Appeals Tribunal of Australia
2022-02-07
Emeritus Professor P
Original judgment source is linked above.
Harris and National Disability Insurance Agency [2022] AATA 276 (7 February 2022)
Division: NATIONAL DISABILITY INSURANCE SCHEME DIVISION
Tribunal: Emeritus Professor P A Fairall, Senior Member
The reviewable decision dated 13 July 2021 (to refuse to vary the Applicant's statement of participant supports under the Applicant's NDIS plan approved on 22 April 2021 so as to include bathroom modifications at the Applicant's home) is set aside and remitted to the Respondent with the following Directions:
................................[SGD]......................................
NATIONAL DISABILITY INSURANCE SCHEME - where applicant has multiple sclerosis - request for bathroom modifications - whether requested support is reasonable and necessary pursuant to subsection 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) - whether support is in accordance with NDIS rules and guidelines - decision under review set aside and remitted with directions
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Drake and Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634
LZMX and National Disability Insurance Agency [2021] AATA 378
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Scheme - Operational Guidelines - Planning
National Disability Insurance Scheme - Operational Guidelines - Including Specific Types of Supports in Plans
1. Mrs Harris (the Applicant) is in her sixties and living with multiple sclerosis (MS). She is a participant of the National Disability Insurance Scheme ('the NDIS').
2. On 24 May 2020, Mrs Harris and her husband, Mr Harris, arranged to buy a manufactured home (the cottage) on site at a holiday park for $240,000.00, subject to the sale of their house.[1] The house sold on 22 July 2020 for $420,000.00. After discharging the bank mortgage and other expenses relating to the sale, and after paying for the cottage, the couple were left with a modest surplus of around $10,000 dollars. In August 2020, they moved into the cottage. Mrs Harris states she is delighted with her new abode and expects to stay there 'forever'. Although they do not have a freehold interest in the land on which the cottage is situated, they are debt free.
3. After they moved in, an occupational therapist (OT) carried out a complex assessment on the new dwelling. The OT Report is dated 2 December 2020, although the assessment was carried out in September 2020. The OT report describes the situation (at 2.1) as follows:
Mrs Harris lives with her husband in their owner occupied low-set relocatable home. Her husband works away and is often not home during the week.
Mrs Harris has Multiple Sclerosis. As a result, she has reduced lower limb strength and balance.
Mrs Harris mobilises independently with a 4WW indoors. She has an altered gait pattern with reduced foot clearance and short shuffled steps.
Mrs Harris mobilises independently with a mobility scooter outdoors.
Mrs Harris fatigues rapidly and her strength and balance are reduced in the afternoons. She is unable to stand or walk for over 10 minutes.
Mrs Harris suffers from dizziness when fatigued and this increases her risk of falls.
Mrs Harris has recurrent falls. Her most recent fall was when she was walking inside her home with her 4WW, she fell backwards and hit her head.
Mrs Harris is independent with toilet, bed and chair transfers. She has difficulty completing car transfers and has to lift her legs up with her upper limbs to transfer into the car. Mrs Harris drives an automatic car.
Mrs Harris requires supervision to complete shower transfers. As she is often home alone, she is at risk of falls completing this transfer.
Mrs Harris has assistance for cleaning, laundry and home maintenance tasks. She is independent with simple meal preparation tasks but requires assistance for main meals as she is unable to stand for long periods of time.
4. The current situation was described at 5.3.4 of the report as follows:
The existing bathroom is not wheelchair accessible and does not allow Mrs Harris to take her 4-wheeled walker Into the bathroom.
The existing bathroom is 1480mm x 2590mm and has a shower recess, toilet, vanity and cupboard.
The shower recess is approximately 720mm by 1200mm. The toilet in the bathroom impedes on the shower doorway width - making the access 500mm in width.
The current shower recess does not leave enough space for equipment (shower chair or mobile shower commode).
The doorway is 700mm width and is not wide enough to allow for wheelchair access.
The hob causes a significant risk of Mrs Harris as she is unable to safely transfer in and out of the shower, as she is unable to lift her feet clearly over the hob.
Mrs Harris requires a wheelchair accessible bathroom to allow her to use her +wheeled walker and shower chair now and in the future, have wheelchair and wheeled mobile shower chair access into and within the bathroom.
We considered other options - such as a shower/bath transfer bench. There is insufficient room for Mrs Harris to lift her legs over the hob and into the shower while seated on a transfer bench. We also considered a shower base platform to raise the height of the shower recess. This is not a suitable long-term option as Mrs Harris will still have to step up into the shower and she will not be able to use equipment such as a wheeled commode in the future if required.
Bathroom modifications to allow for level access shower recess:
This particular property has not had modifications funded by the NDIS. Mrs Harris had major bathroom modifications completed at her last residence through the NDIA. Mrs Harris was subject to harassment within the housing complex that she lived in. Her function deteriorated significantly as she was dealing with stress and anxiety caused by her neighbours, the body corporate and the community at her old residence. Mrs Harris was forced to sell and relocate due to the stress and anxiety relating to the management and committee.
7. Mrs Harris's current NDIS Plan (the 2021 Plan) was approved on 22 April 2021. However, it did not contain provision for the bathroom modifications.[2]
8. On 23 April 2021, Mrs Harris contacted the National Contact Centre of the NDIA.[3] She spoke with the relevant officer. The file note records:
Discussion with Lynne in regards to the logistics and timeline of the modifications. Lynne advised that she contacted the 1800 number gain advice that she only needed to engage a new OT for further modifictionsfor for the bathroom in her new home.
Explained the process to Lynne, further review into the circumstances is required.
Follow up call to be made either 25.06.2021 or 28.06.2021.
Interaction Record · Thu Jun 24 2021 12:21:58 GMT+1000 (AUS Eastern Standard Time)[4]
9. On 27 April 2021 she sent an email to the relevant officer, asking for an internal review "into being decline[d] [the] bathroom modifications":
We were forced to leave our previous home due to it being detrimental to my health. We had to involve Tweed Heads police on 3 occasions and our solicitor, John Keating, Keating Law, 4 times. My husband works away from home 5 days. I was afraid to leave my home as was lied about, accused of swearing at residents & had beer cans thrown over our fence at night. My health deteriorated significantly with me contracting shingles, due to stress, which has left permanent damage to my right side. My husband made to decision to leave to preserve my health.
We had no plans to ever leave, it became unbearable for me to live an independent life.[5]
10. By letter addressed to Mrs Harris dated 13 July 2021, a delegate of the Chief Executive Office of the National Disability Insurance Agency ('the NDIA') confirmed that the original decision was correct.
11. The delegate found that the requested supports did not meet the 'reasonable and necessary' criteria under section 34 of the National Disability Insurance Scheme Act 2013 (Cth) ('the Act') or Part 5 of the NDIS (Supports for Participants) Rules 2013 ('the Rules'). In an expanded explanation, the delegate said that the reason the request was declined was because the delegate was satisfied that the 'value of money' criteria was not met.
(...) To determine if a support is value for money, I look at whether the cost of the support is beneficial in light of the benefits it provides, and the cost of alternative supports that could provide a similar outcome for a lower cost.
The NDIA funded bathroom modifications to your previous property in 2019.
Where the NDIA has funded complex or extensive modifications and the property is subsequently sold, the NDIA would expect any future premises selected will be as accessible as possible and money from the sale of the first property, commensurate with the value of modifications funded by the NDIA.
The Agency was involved in the decision to purchase the property with an appropriate accessibility assessment being provided. There is no evidence supporting relocation decision as being discussed or that NDIS was informed or an OT was engaged in searching for accessible premises.[6]
12. The letter also confirmed that any criteria not specifically mentioned in the letter were considered to be met.[7]
13. On 21 July 2021, the Applicant appealed to the Administrative Appeals Tribunal (the Tribunal) for review of the decision to not approve funding for home modifications in the Applicant's statement of participant supports that commenced on 22 April 2021. In her application for review she said:
Rejected application for bathroom modification. I have had a bathroom modification at our last residence. We were forced to leave that address after involving police 3 times & solicitor 7 times. The situation I have multiple sclerosis. I was told under the circumstances I would be eligible for bathroom modification.
I called NDIS to explain the situation I was in. I was told under the circumstances changing due to the unforeseen situation, there would be no reason to reject my application. I could not live a healthy life being afraid to leave my home due to abuse & lies from the committee. I became very sick with shingles from the stress which has left permanent damage to my right side.[8]
14. It is apparent from the material before the Tribunal that the sole ground for refusing the proposed bathroom modifications relates to the provision of funding for bathroom modifications at the previous residence.
15. The Respondent's Statement of Issues filed with the Tribunal on 21 September 2021 states as follows:
6. The Respondent's position remains that the current evidence does not establish that the requested supports meet the reasonable and necessary criteria under s34 and Part 5 of the Rules.
7. In particular, the Respondent's position is that the requested bathroom modifications are not value for money, pursuant to s34(1)(c), as the Respondent funded bathroom modifications in the Applicant's previous property in 2019.
8. Under the NDIA Operational Guidelines - Including Specific Types of Support in Plans Operational Guidelines Planning and Assessment - Supports in the Plan - Home Modifications, where the Respondent has funded complex or extensive modifications and the participant or their family subsequently sells the property the Respondent expects:
a. Future premises selected will be as accessible as possible, and
b. Money from the sale of the first property, commensurate with the value of the modifications funded by the Respondent, will be directed towards modifying the participant's new premises.
9. There is currently little evidence before the Tribunal in relation to the following:
a. The sale of the previous property and purchase price of the new property;
b. What if any occupational therapist advice was obtained prior to purchase of the new property, including in relation to its accessibility;
c. What other properties were considered prior to purchase of the new property, including information about their accessibility and reasons for not purchasing.
16. A second Statement of Issues filed on 5 November 2021 states:
7. The Respondent's position remains that the current evidence does not establish that the requested bathroom modifications meet the reasonable and necessary criteria under s34 and the Rules.
8. The Respondent has considered the further information provided by the Applicant and makes the following observations:
a. The Applicant's previous home [the TWS property], Tweet Heads South sold for the purchase price of $420,000. There were associated fees in selling the home including marketing costs and registration fees.
b. The Applicant purchased the property known as "North Star Holiday Resort" Manufactured Home ..................... NSW for the sum of $240,000.
c. The Applicant moved from her previous property due to issues with her neighbours and the building strata committee. The Applicant was unable to deal with the stress and abuse of her neighbours and relocated as a result.
d. The Applicant was limited in finances and viewed homes in manufactured home park only, which included the following:
i. Pyramid Caravan Park, Dry Dock Rd Tweed Heads: the Applicant states this property had no room to install a ramp and was inaccessible due to 5 stairs to the front door.
ii. The Palms, Dry Dock Rd Tweed Heads: the Applicant states this property was very small with no room to negotiate with 4WW.
iii. Tweed Broadwater Village, 250 Kirkwood Rd Tweed Heads: this property was out of the Applicant's budget.
iv. Chinderah Hacienda, Anne Ln Chinderah: the Applicant states this property was a 1/2 caravan with no bathroom and would not be suitable to her needs.
v. Chinderah Homestead, Anne Ln Chinderah: the Applicant states this property had no room for access ramp or 4WW indoors.
e. The Respondent has considered the scope of works provided by Letitia Coco of Regan Brown, Occupational Therapy.
9. The Respondent accepts that the proposed supports satisfy the criteria in s34(1)(a), (b) and (e). The Respondent accepts that the proposed support is related to the Applicant's disability.
10. However, the Respondent's position remains that the requested bathroom modifications are not value for money, pursuant to s34(1)(c), as the Respondent funded bathroom modifications in the Applicant's previous property in 2019.
11. Under the NDIA Operational Guidelines - Including Specific Types of Support in Plans Operational Guidelines Planning and Assessment - Supports in the Plan - Home Modifications, where the Respondent has funded complex or extensive modifications and the participant or their family subsequently sells the property the Respondent expects:
a. Future premises selected will be as accessible as possible, and
b. Money from the sale of the first property, commensurate with the value of the modifications funded by the Respondent, will be directed towards modifying the participant's new premises.
12. In circumstances where the Applicant's received funding in the sum of $17,600 for bathroom modifications to her previous premises and where the sale over her previous home was approximately $180,000 greater (notwithstanding any associated costs) than the purchase of her new home, the Respondent expects that the Applicant would direct the funds of the sale of her home towards modifying her new premises.[9]
17. In the Statement of Issues dated 5 November 2021, the Respondent concedes at paragraph 9 that the proposed supports satisfy the criteria in paragraph 34(1)(a), (b) and (e) of the Act:
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide.
18. The Respondent does not concede that the proposed supports satisfy the criteria in paragraph 34(1)(c) of the Act:
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
19. In the various Statements, there is no specific reference to paragraphs 34(1)(d) and (f) of the Act:
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
20. Understandably, no issue was raised about paragraph (d) and (f) of the Act in the Respondent's submissions or at the hearing and in any event, it must be found that each of these criteria are satisfied. As noted above, the delegate's letter of 13 July 2021 explicitly stated that any criteria not specifically mentioned in the letter were considered to be met.[10]
21. The primary basis for refusing the variation is the Respondent's reliance on the Operational Guidelines for Including Specific Types of Supports in Plans: Home Modifications (OGHM) which relevantly provide:
Where the NDIA has funded complex or extensive modifications and the participant or their family subsequently sells the property the NDIA expects:
22. The NDIS has been in operation for less than ten years. It is landmark social legislation dedicated to the idea that people with disability have the right to realise their potential for physical, social, emotional and intellectual development.[11] This is the first of a series of general principles guiding actions set out in section 4 of the Act. Other important principles in section 4 of particular relevance to the present case include:
(2) People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability...
(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports (...)
(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports...
(11) Reasonable and necessary supports for people with disability should:
(a) support people with disability to pursue their goals and maximise their independence; and
(b) support people with disability to live independently and to be included in the community as fully participating citizens; and
(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
23. The NDIS is administered by the NDIA established under the Act. The Act sets out the matters that must be included in a participant's plan. Subsection 33(2) provides:
A participant's plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a) the general supports (if any) that will be provided to, or in relation to, the participant; and
(b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c) the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d) the management of the funding for supports under the plan (see also Division 3); and
In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a) have regard to the participant's statement of goals and aspirations; and
(b) have regard to relevant assessments conducted in relation to the participant; and
(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant.
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
1.1 These Rules are about assessment and determination of the reasonable and necessary supports that will be funded and the general supports that will be provided for participants under the NDIS.
1.2 The Act sets out a number of objects for the NDIS. The objects that are particularly relevant to these Rules are the following:
(a) supporting the independence and social and economic participation of people with disability;
(b) providing reasonable and necessary supports, including early intervention supports, for participants in the NDIS launch;
(c) enabling people with disability to exercise choice and control in pursuit of their goals and the planning and delivery of their supports.
1.3 In giving effect to these objects, regard is to be had to the need to ensure the financial sustainability of the NDIS.
2.1 Once a person becomes a participant in the NDIS, they develop a plan with the Agency. The plan comprises two parts:
(a) the participant's statement of goals and aspirations, which is prepared by the participant and specifies their goals, objectives, aspirations and circumstances; and
(b) the statement of participant supports, which is prepared with the participant and approved by the CEO, and sets out, among other matters, the supports that will be provided or funded by the NDIS.
2.2 In deciding whether to approve a statement of participant supports, the CEO is to have regard to a range of matters set out in the Act including the participant's statement of goals and aspirations. This will also specify the environmental and personal context of the participant's living (which might include, among other things, their gender and cultural background).
2.3 In relation to both general supports to be provided and reasonable and necessary supports to be funded, the CEO also needs to be satisfied of a number of matters, including the following:
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social or economic participation;
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is most appropriately funded or provided through the NDIS, and is not more appropriately funded or provided through other service systems (service systems is defined in paragraph 6.4).
Part 3 sets out criteria or considerations that the CEO is to use in deciding whether the CEO is satisfied in relation to some of the matters in paragraph 2.3. These are:
3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d) for supports that involve the provision of equipment or modifications:
(i) the comparative cost of purchasing or leasing the equipment or modifications; and
(ii) whether there are any expected changes in technology or the participant's circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(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).
32. The National Disability Insurance Scheme Operational Guidelines - Planning provides:
This Operational Guideline provides an overview of the National Disability Insurance Scheme (NDIS), including the legal and policy framework it operates within and the variety of different ways it provides support and assistance to people with disability.
In addition, this Operational Guideline outlines the objects and general principles of the National Disability Insurance Scheme Act 2013 and provides a summary of the information which is available in the remainder of the NDIS' Operational Guidelines.[13]
33. Under 3.2 the Overview Page sets out what the NDIS Operational Guidelines cover. There are ten headings, across a range of topics, from Access to the NDIS, to Review of Decisions. One of those topics is headed 'Including Specific Types of Supports in Plans'. This leads to a further page with 14 categories, one of which relate to Home Modifications. The Home Modifications Policy is set out at this point.
34. I set out part 5 of the Including Specific Types of Supports in Plans Operational Guideline in full:
Home modifications are changes to the structure, layout or fittings of the participant's home that are required to enable the participant to safely access and move around frequently used areas in their home as a result of their disability.
It is expected that a home modification would only be considered where the home to be modified is the participant's primary residence and the participant intends to remain living at the residence. If the property is a rental property, then the written agreement of the owner of the property will be required before any modifications take place.
There are a number of laws and regulatory frameworks, for example Building Codes and Australian Standards which regulate home modifications. The NDIA is unable to fund home modifications which, if provided, would be contrary to a law of the Commonwealth, state or territory (see which supports will not be funded or provided under the NDIS.
Therefore, the NDIA must be satisfied that there are no laws, regulations or other planning restrictions which would prevent the home modifications being undertaken.
In addition, the NDIA must also be satisfied, amongst other matters, that the home modification being considered 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 (section 34(1)(c)).
When determining whether home modifications represent value for money, the NDIA will specifically consider:
The NDIA must also be satisfied that the provision of the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice (section 34(1)(d)).
Therefore, before including home modifications in a participant's plan, the NDIA will also consider whether the home is suitable to be modified, including having consideration to:
When complex and extensive home modifications are being considered, the NDIA may also fund oversight by a project manager or independent building certifier to ensure compliance of the modification and a qualified and experienced Occupational Therapist to certify the effectiveness of the modification to meet the participant's goals and likely future needs.
Generally, the NDIA will fund reasonable and necessary home modifications:
Generally, the NDIA will also fund reasonable and necessary supports that are related or incidental to home modifications which may include:
It is generally expected that home modifications will be suitable for the participant's anticipated long term needs. Therefore, it is unlikely that further modifications will be funded for the same premises except where there are unforeseen and significant changes to the participant's needs.
Where the NDIA has funded complex or extensive modifications and the participant or their family subsequently sells the property the NDIA expects:
35. The Operational Guidelines for Home Modifications (OGHM) is a policy statement developed by the NDIA to assist applicants and decision-makers in relation to specific situations. The specific paragraphs on which the Respondent relies (underlined above) are to be found at the end of a lengthy statement, which is itself buried on the relevant site, three levels deep.
36. The matter was heard by the Tribunal on 7 February 2022. Mrs Harris was represented by Mr Bhagwat of Legal Aid, the Respondent by Ms Boettcher of counsel.
37. Before the Tribunal, issue was joined on the basis that the only criteria not met was that contained in paragraph 34(1)(c):
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
38. The Respondent's position was maintained at the hearing.
39. Mrs Harris described her disability as follows. She said that she was no longer able to work due to her disability. She could walk inside her home using a four-wheel walker but could only stay on her feet for a few minutes at a time before getting tired and dizzy. When she was out of the house, she used a mobility scooter to move around. She said that her balance and mobility had deteriorated in the last 2 years.[15]
40. She described her existing bathroom, and provided photographs, which were studied by the Tribunal. She described her current pain-staking process of getting into the shower. She said she had to balance on the vanity and towel rack and lift her legs up into shower lip. Her legs did not lift independently. She held her balance by touching or leaning on a wall. The walker did not fit into the bathroom. In December 2020 she fell twice. Once in early December 2020, while she was trying to use the toilet at night, the towel rack gave way and she fell and hit her head on the toilet. The next day, Mr Harris took her to her GP, Dr Erin Evans. The applicant had a concussion and received treatment for wound care requiring 4-5 stitches.16 And again on December 21, she fell in the bathroom, tripping over a floor mat, during her evening shower at the cottage. She went to the Tweeds Head emergency to get treatment.
41. In speaking about her cottage, Mrs Harris said that there were beautiful people in the community - and it was lovely living there. She said she intended to stay there 'forever'. She is delighted with her new environment and the friendliness of neighbours, although Mr Harris is sorry to have left the proximity of the golf course, which adjoined the TWS property.
42. Mrs Harris was examined robustly by the Respondent's counsel about her reasons for moving and the means at their disposal to complete the purchase of the cottage. It was put to Mrs Harris that she had enough money to purchase the cottage and provide for the requested modifications. Mr and Mrs Harris were of course required to discharge the existing mortgage from the proceeds of sale. Out of the $378,618.35 received for the sale of the property, the bank required $118, 233.05.[16] This left a balance of $260,385.30 of which $238,000.00 was required to complete the purchase of the cottage. This left $22,385.30, and Mrs Harris indicated that the agent fee was paid out of this residual amount.
43. The Respondent's Statement of Facts, Issues and Contentions states:
37. In circumstances where the Agency has previously brought to account the expected length of tenure and subsequently agreed to fund the requested complex home modifications, and a participant has readily decided to move shortly thereafter and profited in the sale of the modified premises, it should be accepted, as contemplated by the OGHM, that the participant will contribute money from the sale of the property to modifying their new premises. In this case, the property was placed on the market less than a year after the renovations and was sold shortly thereafter. The expectation that the Applicant lend proceeds from the sale of her premises to the bathroom modifications cannot be said to be unjust where the Applicant made financial gain from the renovation and resulting improvement to the previous property.
44. There is no evidence whatsoever that the Applicant or her husband 'profited' from the sale of the TWS property or that she made a financial gain from the bathroom modifications. No evidence was provided by the Respondent of the financial impact of the bathroom modification and even if, which cannot be assumed, such modifications added to the value overall of the property, it is far from clear that it would be 'just' to require the Applicant to lend proceeds from the sale of her premises.
45. The Tribunal accepts that after discharging the mortgage on the TWS property, Mr and Mrs Harris did not have sufficient funds to pay for the bathroom modifications. Nor is there any evidence to suggest that the bank as mortgagee would have been prepared to provide funding for the bathroom modifications. The normal bank practice upon sale is for the mortgage to be wholly discharged.
46. Considerable time was spent at the hearing exploring the reasons the couple wanted to move from the TWS property to the cottage. I do not consider this to be particularly relevant. Neither the Tribunal nor the Agency is required to pass judgment on the reasons for their decision to move. For whatever reason, Mr and Mrs Harris decided that they would be happier and more comfortable in their new environment.
47. I merely note that there appears to have been a breakdown of cordial relations between the Mr and Mrs Harris and other residents of the community strata associated with the TWS property.
48. According to her statement, there was considerable tension with some of the neighbours at the TWS property. Abusive emails and SMS messages were provided to the Tribunal. She said that she suffered shingles as a result of stress induced by these frictions. This had caused permanent nerve damage to her right leg.
49. I emphasise that the Tribunal finds nothing to suggest that Mr and Mrs Harris were in any way motivated by a desire to profit from the modifications made to the TWS property, nor is there any evidence before the Tribunal to support a funding that the property value was enhanced by those modifications.
50. The Applicant was adamant that she spoke with the Local Area Council (LAC) of the NDIA in relation to the proposed move. There are files notes which bear of the occurrence of these conversations. In her statement she said:
23. Before we made that decision, I called the NDIS and Social Futures, a Local Area Coordinator in Tweed Heads, to explain my circumstances and to ask whether I would be able to have modifications funded if we moved. On both calls, I was told that people's circumstances change all the time and the NDIS would fund necessary modifications at a new house. On neither of these calls was I informed that I should have an occupational therapist inspect houses with me, was expected to move into the most accessible home possible or would be expected to contribute to the cost of any modifications at the new house.
51. At the hearing Mrs Harris said that she made multiple calls to the NDIA and spoke with the LAC. The Interaction Notes provided by the Respondent bear this out. As noted above, the deposit was paid in May.[17] There were phone calls to the LAC on 24 April 2020. The interaction notes state:
24/4/20 - Phone call LAC ongoing monitoring. Discussed supports and services. Participant advised she may be moving home and will further advise. Ongoing LAC support offered.[18]
23/6/20 - LAC phone conversation held with participant. Participant disclosed urgent move of residence and discussed supports required. LAC offered ongoing support [19]
Discussion with Lynne in regards to the logistics and timeline of the modifications.
Lynne advised that she contacted the 1800 number gain advice that she only needed to engage a new OT for further modifications for the bathroom in her new home.
Explained the process to Lynne, further review into the circumstances is required.
Follow up call to be made either 25.06.2021 or 28.06.2021.
Interaction Record · Thu Jun 24 2021 12:21:58 GMT+1000 (AUS Eastern Standard Time) [20]
The last correspondence we had was 25th June when I re-submitted my OT report for my bathroom modification, which was submitted by my O.T 15/2/21.
I hope you've had a chance to read the report. We were forced to leave our last home due to the committee making it impossible for me to live healthy & independent. I had to involve Tweed police 3 times with our solicitorwriting 7 emails to the committee. I called NDIS to explain the situation & was told under the circumstances I would be eligible for bathroom modification in our next home.
I struggle everyday in the shower with a soap dish as my only support. My husband works away from home & I have my shower at 4pm & he calls at 4:20. If I don't answer he calls my neighbour who checks on me. As my report states I have had many falls resulting in broken bones & stitches. I am appealing to NDIS for bathroom modification.
I had my NDIS plan review with my LAC 24/2/21. The main reason was for car modification.
Due to my deteriorating health caused by our last address I developed shingles which has left my right leg very weak. I was no longer safe driving when my foot slipped off the accelerator under the brake. I stopped driving waiting car modification. My LAC didn't include it in my plan. He told me I needed a s100 form?? I am relying on my husband to take days off for me to attend appointments. I am wanting to increase my participation in the community & live independently. Our car sits in our driveway. I have completed the modified driving course & a full assessment has been submitted to NDIS with a confirmation email to Freedom OT 19/5/21. Quotes from Autoextras have also been submitted. Again I am appealing to NDIS to please consider my situation. I feel I am wasting away & constantly in a depressed state.
52. Mr and Mrs Harris entered into an Agency agreement to sell the TWS property on 30 April 2020. The first of these notes (made on 24 April 2020) confirms that she told the Local Area Council representative that 'she may be moving' and that there was a discussion of supports and services. The note records: 'Ongoing LAC support offered'.
53. As noted above, the deposit to buy the cottage was placed on 24 May 2020. The agreement was subject to, and conditional upon, the sale of the TWS property by 30 July 2020. The sale of the TWS property went through on 23-24 June 2020. There is little doubt that the Applicant engaged with the NDIA during the relevant period. There is however nothing in the interaction notes to suggest that the Agency's 'expectation' was conveyed to Mrs Harris - that having received funding under her previous plan for the TWS property, she would not be allowed to receive a second 'bite of the cherry' for the cottage.
54. Mr Harris also gave evidence and affirmed his statement of 8 September 2021. He said that they were harassed by the committee at the TWS property. He said that his wife wanted to move to the cottage. He candidly admitted that he did not really want to move. For one thing, as an avid golfer, he would no longer be right next to the golf course. But he supported his wife's decision to move. He was unsure whether the modification added value to the TWS property.
55. He did not regard the move as 'down-sizing'. He agreed that after moving they were mortgage free. He said that the new property was a lot cheaper because "'you don't buy the land". He did not consider that this was a "lifestyle decision". He said that he was "semi-retired now". He said that he expected to stay there for a long time. When asked about the toilets he said that there was second toilet there.
56. Mr Bhagwat, for the Applicant, submits that the OGHM conflicts with the legislation and the Rules, neither of which refer to the specific issue dealt with by the Policy (sale of a previous NDIS improved property), and to that extent should be considered "unlawful". Alternatively, he contends that the special circumstances of this case are such that the Policy should not govern.
57. Mr Bhagwat argued that the Agency could not withhold funding on the basis that the claimed support was similar in kind to that which had been provided at a previous residence. He emphasised that the NDIS is not means tested. He referred to McGarrigle v National Disability Insurance Agency [2017] FCA 308 (28 March 2017) 2017 257 FCR 12, at para 94-96. In that case Mortimer J found that the Act did not allow for joint contributions - once the decision-maker found that the support was 'reasonable and necessary' there was no further scope to limit funding to some proportion of the total cost. While this is an interesting argument, the facts of McGarrigle are materially different from the present.
58. Mr Bhagwat contended that even if the OGHM is valid, then the facts of the present case fell within the scope of Drake and Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634, 645.
The Operational Guidelines represent government policy and, to the extent they are consistent with the relevant legislation, should be applied by the Tribunal unless there are cogent reasons not to do so (Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 640 (per Brennan J). See also Madelaine and NDIA [2019] AATA 4025 at [9]). The Tribunal is therefore entitled to treat the OGHM as a relevant factor in the determination of an application for review of the decision. In this case, the OGHM may be applied as an aid in achieving consistency of decisions, and will assist the Tribunal in reaching the preferable decision.
60. I accept that the OGHM is a relevant factor to be considered in the application of the Rules.
61. The Respondent's counsel contends that the expectation referred to in the last paragraph of the OGHM is a reasonable one, and that the Tribunal ought to apply the Policy in affirming the reviewable decision.
62. The Respondent's counsel asserts that the expectation arises because in July 2015, Mrs Harris (the Applicant) and her husband, Mr Harris, purchased a strata home unit. The unit was purchased with the assistance of bank finance and modified with funding from the National Disability Insurance Agency (NDIA). Almost five years later, they decided to sell, and on 27 April 2020, entered into an Exclusive Selling Agreement with an agent to do so. The respondent says that the modifications on the cottage should have been paid from the 'profits' generated from the sale of the unit.
63. It is true that the unit was modified a year before Mr and Mrs Harris decided to sell. But there is clear evidence that the situation with their neighbours had become quite untenable and could only be resolved by moving. The rights and wrongs of the neighbourhood dispute, upon which regrettably too much time was spent at the hearing of this matter, are immaterial. I am satisfied that the decision to move was rational and made in good faith and had nothing to do with any desire to profit from a possible improvement of value to the unit by reason of NDIS funded bathroom modifications.
64. I am satisfied that in the circumstances of this case the OGHM should not prevent the applicant from receiving funding under her 2021 Participant Plan. Where a party under circumstances such as the present has communicated with the NDIA or its agent, and acted openly and in good faith, the NDIA should not rely on this policy to disentitle them from receiving funding for necessary supports.
65. It is clear from the report of the Occupational Therapist that the modifications are urgently required. It is abundantly clear from the materials presented to the Tribunal that there is a real danger of ongoing injury if the bathroom is not modified in the manner proposed. It is also clear that Mr and Mrs Harris considered a range of properties within their price range and there is nothing to suggest that any more accessible property was available to them.
66. The Respondent's counsel argued that the decision to move from the previous property to the cottage was a 'lifestyle' choice, which should not be supported by the community. She referred to LZMX and National Disability Insurance Agency [2021] AATA 378 (26 February 2021) for discussion of 'lifestyle' choices. In that case a two-storey property was purchased in Adelaide and the decision was whether to install a lift which turned on whether the residence was located on the upper floor. The decision was described as "a lifestyle decision". I do not find the reference to 'lifestyle' at all helpful.
67. The OGHM is not 'binding' on the Tribunal. It should be followed but not slavishly so.[22] In the circumstances of the present case, I am satisfied that the criteria for eligibility under the Act and the Rules are satisfied, and that the OGHM should not be a bar to relief. In my judgment, the correct and preferable decision is to vary the Applicant's statement of participant supports under the Applicant's NDIS plan approved on 22 April 2021 so as to include bathroom modifications at the Applicant's home.
68. I note that Mrs Harris provided a quotation from Spic n Span Constructions dated 21 December 2020 for $16,500.[23] She provided a second quotation from Tradepro dated 1 February 2021 for $29,058.43. I note that an updated quotation dated 4 February 2022 from Spic n Span Constructions for $22,050 is included in the file materials.[24]
69. I set aside the reviewable decision dated 13 July 2021 (to refuse to vary the Applicant's statement of participant supports under the Applicant's NDIS plan approved on 22 April 2021 so as to include bathroom modifications at the Applicant's home) and remit the matter to the Respondent with the following directions:
I certify that the preceding 69 (sixty -nine) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
................................[SGD]......................................
The following materials were provided to the Tribunal:
A2 Statement of William Harris dated 8 December 2021
A4 Email from Lynne Harris to NDIS dated 8 May 2021
A6 Settlement sheet for Tweed Heads South Property dated 7 September 2020
A7 Contract for sale of Tweed Heads South Property dated 22 July 2020
A9 Agreement for purchase of Holiday Resort Cottage dated 24 May 2020
A10 Emails between John Keating and Lynne Harris dated 31 March 2020
A12 Email from Lynne Harris to Peter Harris dated 26 February 2020
A13 Email from Lynne Harris to Peter Harris dated 28 December 2019
A14 Email from Lynne Harris to Peter Harris dated 8 December 2019
A15 Email from Lynne Harris to Peter Harris dated 7 December 2019
A16 Email from Lynne Harris to Peter Matthews dated 1 December 2019
A17 Email from Lynne Harris to Jenefer Carpenter dated 6 November 2019
A18 Email from Lynne Harris to Ian Stuart dated 20 August 2019
A19 Email from Lynne Harris to Kylie Tindall dated 16 August 2019
A20 Email from Lynne Harris to Kylie Tindall dated 15 August 2019
A21 Email from Lynne Harris to Jenefer Carpenter dated 27 May 2019
[2] Her previous Plan (the 2019 Plan) was approved on 20 February 2019. The 2019 Plan included home bathroom modifications costing $17,600.00 carried out in May 2019. I note the quotation for $20,100.00 (GST Inclusive) from Spic n Span Constructions dated 18 September 2018.
[13] National Disability Insurance Agency, 'Operational Guidelines: Overview of the NDIS Operational Guideline'
[14] National Disability Insurance Agency, 'Including Specific Types of Support in Plans Operational Guideline - Home modifications'
[22] Applying Drake and Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634