HRZI and National Disability Insurance Agency [2023] AATA 481 | Case summary

HRZI and National Disability Insurance Agency [2023] AATA 481 | Case summary | Zoe

[83]

I am a 51-year-old first generation Australia women, of Dutch and Hungarian ancestry, with the following conditions: > > − Spondylosis, degeneration of the spine. > > − Endplate sclerosis. > > − Teitze Syndrome, Sternum is painful to touch. If I overuse the upper part of my body it will cause inflammation between thoracic and sternum causing severe pain, feelings of heart attack. > > − Enthesopathy, tendons and ligaments stick to the bone, causing pain and painful spasms. > > − Fibromyalgia > > − Chronic pain > > − Acute pain flare ups lasting up to a couple of weeks. > > − Complex regional pain syndrome > > − Vision impairment. Require glasses. At risk of going blind, being monitored by optometrist. Spatial awareness and depth perception impacted due to trauma, MTBI, nerve damage and fatigue. > > − Partial hearing impairment > > − Vestibular migraines > > − Complex Post Traumatic Stress Injury (CPTSI), including, but not limited to, severe anxiety, hypervigilance, insomnia,shock and depression > > − Mild traumatic brain injury, concussion syndrome. > > − RSI, right arm. > > − Whiplash right side. > > − Compressed nerves. > > − Nerve damage > > − Musculoskeletal degeneration and injuries. > > − Burns injuries, 2nd degree to 10% of body, lower abdomen, upper and inner right and left thighs. Skin grafts with fragile skin, with ongoing nerve pain, incontinence and fatigue. > > − Lung disease, COPD, asthma and emphysema. Borderline oxygen levels. > > − Food allergies and intolerances. > > − Sensory impairment. > > − Additional Undiagnosed severe stomach and right-side ear pain > > − Severe stomach pain associated with spine injuries and degeneration. > > − Hips seize up, if I don't move/exercise or if I do too much. > > − Labral tear both hips, right more severe. Additional hip diagnosis. > > − Constant painful spasms although has decreased with assistance of regular massage, physio, osteo and hydrotherapy. Acute episodes of severe painful spasms. (Under investigation for incomplete spinal cord injury and mild spacticity) > > ... > > Due to the above conditions and their deterioration, my functional capacity is severely limited, especially with regards to my physical mobility, communication, social interaction, and economic participation. > > My need for more support > > Currently, I do not have adequate support from the NDIS to achieve my goals, which include owning a home that is safe and accessible, taking care of my grandchildren in my own home, starting my own business, being active in my community, and having another child. > > Due to the lack of support, I am now living alone in a property that does not meet my disability requirements. This property presents a constant risk of danger to my safety and well-being. > > I am also greatly diminished in my capacity to work, attend important appointments, maintain relationships with family, and to participate adequately in community life. > > In addition, I feel that I have been discriminated against with regards to my capacity to determine my goals and manage my own NDIS Plan. > > I need and want more social inclusion. I feel I have to many barriers preventing me from being able to live a normal inclusive life. > > Due to the lack of appropriate disability support, some of my disabilities are deteriorating even further. > > List of supports that I am seeking > > To achieve my NDIS goals, I am seeking the following supports, on top of the existing supports in my Plan:

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CORE - > > Transport: > > Own vehicle repaired > > Hire car when required > > Taxi vouchers > > Security > > Daily Living: > > Life coach - Personal trainer/motivator > > Exercise physiologist > > Physio - swimming exercise; pull buoy and kick board; bike; trampoline; kayak > > Dietitian (Hit 10) > > Exercise physiologist > > Support, assistance, co-ordination; form completion - study > > Pain management Clinic > > Write Own Story - Counselling/healing/life coach > > Emergency Fund - Credit Card to pay upfront > reimbursements > > CAPITAL - > > Housing - Long term/Emergency > > Transport - upgrade to fully facilitate necessities - cooking (diet) - sleeping - heat/cool - personal hygiene - Improved daily living facilities will assist with health and wellbeing - improved eating (allergies and intolerances)/sleeping/hygiene/comfort/safety > > Immediate 5000 for motor-home until alternative can be achieved > > Motor vehicle required for maintaining appointments > > Stereo in car; music; grounding; preparation for dance classes > > CAPACITY BUILDING - > > Choice and control: > > Self management - Capacity building to get partly self managed now - fully self managed in 12 months > > Have a child > > Work: > > Professional development for business > > Accountant/Nexus > > Business plan and budget/Nexus > > Small business course > > Zero book keeping program - one registration > > Registrations and set up > > Lap top - programs > > Advertising - brochures - cards etc > > Study PHD in movement and sound; National Library - 'Petharic' Reading Room booking > > Research history of Rockabilly > > Archiving of paperwork > > Dance evolving - Kepowera Brazilian dance > > Sewing machine/overlocker - design and make own uniforms > > Uniforms to starts - $2500 > > Health & Wellbeing: > > Quest for life - PTSD Course - Petrea King > > CedarVale - 12 day retreat > > Speech therapy > > Neurological therapy - memory > > Alanon > > Physio therapy - gym > > Weight loss - Dietician - to assist with pain reduction and gastro issues > > Occupational Therapist > > Lifelong Learning: > > Singing and dance lessons > > Complete Yoga Instructor Course - complete assignments > > Aqua Yoga - Swim instructor course > > Complete floristry course > > Master RockaBilly > > Professional development; yoga and dance > > Social and Community Participation: > > Service dog - purchase - training - registration > > Courses; pottery; glass; crochet; Yoga; martial arts; craft > > Education Goals: > > Self image - assertiveness - esteem - confidence - trauma/memory - difficulties - concentration - focus**[26]**

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24 Disability requirements > > (1) A person meets the disability requirements if: > > (a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition[30]; and > > (b) the impairment or impairments are, or are likely to be, permanent; and > > (c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities[31]: > > (i) communication; > > (ii) social interaction; > > (iii) learning; > > (iv) mobility; > > (v) self‑care; > > (vi) self‑management; and > > (d) the impairment or impairments affect the person's capacity for social or economic participation; and > > (e) the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime. > > (2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the variation.[32] > > 25 Early intervention requirements > > (1) A person meets the early intervention requirements if: > > (a) the person: > > (i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or > > (ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent;[33] or > > (iii) is a child who has developmental delay; and > > (b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and > > (c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by: > > (i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or > > (ii) preventing the deterioration of such functional capacity; or > > (iii) improving such functional capacity; or > > (iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer. > > Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant. > > (2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection. > > (3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered: > > (a) as part of a universal service obligation; or > > (b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

[120]

A question of the Tribunal's jurisdiction arose in the course of the proceedings, relating to HRZI's claims for supports not previously considered by the NDIA. The matter was dealt with in a written ruling.[34] Following QDKH v National Disability Insurance Agency (QDKH),[35] the Tribunal has jurisdiction to determine afresh reasonable and necessary supports in HRZI's case, including the supports raised in the course of these proceedings.
The present issue has a different complexion. It is whether the Tribunal's review is properly confined to contested supports HRZI is seeking, which were not approved or not considered by the reviewer under s 100(6) of the NDIS Act (or by the CEO under s 33(2)), without consideration or determination of uncontested supports which were previously approved in the decision under review.
At hearing, the NDIA argued, there is no scope for the Tribunal to review uncontested supports (or other elements) included in an approved SPS, as to do so would unnecessarily put the parties to proof of each and every element the SPS contains. HRZI largely agreed with the NDIA on this point. In subsequent written submissions, the NDIA appears to accept, on review of an SPS approval decision under s 100(6) of the NDIS Act, the Tribunal has jurisdiction and power to determine all elements of an SPS. Nonetheless, the NDIA asserts the internal review decision is the correct or preferable decision and notes there has been no substantive review of the Applicant's supports since she sought review.[36] This is despite the matter being remitted by the Tribunal for reconsideration on 5 occasions. In order to enable a plan review to be undertaken in consultation with HRZI, the NDIA presses the Tribunal to make a recommendation for the 2020 Plan to be subject to review under s 48 of the NDIS Act within one month of this decision.
It is important to distinguish between the Tribunal's jurisdiction under s 103 of the NDIS Act, the powers of the Tribunal to determine the scope of the proceedings and matters of practical reality or convenience to the parties.
The jurisdiction conferred by s 103 (for the purposes of s 25 of the AAT Act) is in the following terms:

[125]

As can be seen, the reviewable decision is a positive decision to approve supports.
Under s 100(5), the reviewer exercised powers informed by the scope of the power under s 33(2) and made a decision on the relevant materials then available. Only in this way could the reviewer determine afresh the SPS for HRZI, including supports which were not approved or not considered by the CEO when the reviewable decision was made. The reviewer confirmed the delegate's original decision.
The Tribunal is required to decide afresh all matters capable of being decided under s 33(2) and, under s 43(1) of the AAT Act, it may exercise all the powers and discretions conferred upon the reviewer for the purposes of the review. Just as the reviewer in this case was required to consider afresh the matters set out in s 33(2), including the reasonable and necessary supports which may be approved for HRZI, so must the Tribunal make the correct or preferable decision under s 33(2) of the NDIS Act on the materials and evidence placed before it.
Subsection 42D(1) of the AAT Act provides for remittal of a decision under review for reconsideration by the decision maker, whereupon the decision maker exercises power under s 42D(2) to affirm, vary or set aside the decision and substitute a new decision. In a case of the present kind, involving approval of an SPS for HRZI, remittal for reconsideration under s 42D(1) is an opportunity for the NDIA to fully reconsider all aspects of the internal review decision and the original decision to approve the SPS under s 33(2) of the NDIS Act. On the NDIA's submission, the remittals were made for the purpose of ensuring that funding continued pending resolution of the matter in the Tribunal, whereas a plan review under s 48 would facilitate a full review of [HRZI's] current support needs, not limited to the matters that have been subject of dispute. [38]
This discloses a narrow conception of the purposes of remittal under s 42D(1) of the AAT Act and a similarly narrow approach to review of an SPS approval decision.
The NDIA asserts the discussion of issues raised during the hearing, in respect of the scope issue and the nexus issue, is, to a large extent, hypothetical, as the Applicant did not seek to avail herself of the opportunity to adduce further evidence in relation to supports.[39] Aside from there being nothing hypothetical about the proper consideration of reasonable and necessary supports that will be funded under HRZI's participant's plan, an adversarial approach in which one party is required to adduce materials to prove their case against another party is inapt. Under s 33(1AA) of the AAT Act, the NDIA is obliged to assist the Tribunal to make the correct or preferable decision in the proceedings and under s 33(1AB) both parties are required to assist the Tribunal to fulfil the objective in s 2A of that Act. I note the scope and nexus issues arise from the NDIA's construction of the legislation in this case and the narrow approach to the conduct of merits review in respect of matters that have been the subject of dispute.[40]
A narrow approach of that kind, being confined to matters in dispute, and an adversarial approach, in which HRZI is required to prove supports, does not align with the principles set out in QDKH or with the provisions for merits review (and related powers) under s 100 of the NDIS Act and relevant provisions of the AAT Act. The Tribunal's review is not confined to matters in dispute between the parties in respect of particular supports or contested elements of an SPS approval decision under s 33(2) of the NDIS Act.
That said, the proposition only limited relevant material of probative value has been placed before the Tribunal in these proceedings is correct. This is despite the protracted nature of the proceedings and remittal of the decision under review for reconsideration on 5 occasions.
The Tribunal has power to limit the scope of the review by limiting the questions of fact, the evidence and the issues it considers under s 25(4A) of the AAT Act, and exercise procedural powers under s 33. No order was requested or made under s 25(4A) in this case.
Thus, while it is possible for the Tribunal to limit the review to particular supports which are the subject of disputation between the parties, or which have been determined adversely to the participant, the nature of the decision under review is an important and relevant consideration when determining the appropriateness of doing so. The assessment of any particular support may require consideration of other related supports in the context of the person's particular circumstances, their SGA and their disability support needs when applying the threshold set out in s 34(1).
HRZI raised a question whether, in such circumstances, it is necessary for a participant to produce evidence capable of satisfying the Tribunal each and every uncontested element of the SPS approved by the original decision maker and confirmed by the reviewer is justified and each support is reasonable and necessary.
While, generally, the answer to HRZI's question is 'Yes', there are two issues of practicality to consider.
Firstly, in review proceedings before the Tribunal, parties may make concessions in respect of particular elements of a reviewer's SPS internal review decision which are not controversial. Even though the Tribunal is not bound by any such concession, the Tribunal may accept a concession where it is satisfied it is reasonable and appropriate to do so in consideration of the applicable law and on the available materials.
Secondly, where parties inform the Tribunal they agree particular supports should or should not be approved and the agreement is reduced to writing and given to the Tribunal, the Tribunal may act upon it. By operation of s 42C(1) and (3) of the AAT Act the Tribunal may give effect to agreement in respect of part of a proceeding without dealing with such matters at a hearing if it is satisfied doing so is within power and appropriate.
In other words, where particular matters are agreed between the parties in a review, the Tribunal has power and procedural flexibility to deal with and act upon the agreement where the Tribunal is satisfied it is appropriate to do so. The argument there is little utility in hearing matters which are not in dispute and are agreed between the parties has some force. Proceeding in such a manner may assist the Tribunal to meet the objectives set out in s 2A of the AAT Act. Nevertheless, the Tribunal must proceed in a proper and fair manner on the materials placed before it. Acceptance of a concession or an agreement between the parties requires formulation of a state of satisfaction about the appropriateness of proceeding in such a manner, and satisfaction requires relevant probative material.
In this case, the parties assert the Tribunal should accept the reasonable and necessary supports which were approved in the primary decision on 24 June 2020 and confirmed by the internal review decision on 20 August 2020, as subsequently extended by operation of the reconsideration decisions on remittal by the Tribunal, including the decision on 31 January 2023 (which is presently before the Tribunal). It was on this basis each party presented their case, without adducing detailed probative materials capable of establishing the supports approved by the reviewer and by the CEO's delegate at first instance (approved supports).
As will appear, there are some difficulties proceeding in this manner.
Firstly, there is a lack of clarity in respect of HRZI's disability and the impairment or impairments to which it is attributable. The NDIA did not question HRZI's present status as a participant in the NDIS and it has not suggested she fails to meet the disability requirements in s 24. Nevertheless, there is only scant relevant material of probative value before the Tribunal.
Secondly, on the present materials, the approved supports, which are described in general terms, and the quantum of funding approved, which is expressed in very specific amounts, cannot be independently ascertained with any particularity, precision or certainty. Simply put, the materials before the Tribunal, including the decision records of the NDIA, are not sufficient to establish these matters. I accept this is because the parties ran their cases on the assumption uncontested and previously approved supports would not be subject to further examination, proof or findings. The submissions made during and after the hearing, and the matters set out in Statements of Facts, Issues and Contentions on the basis of which each party prepared and presented their case, bear this out.
The question in these circumstances is whether it is appropriate to act upon the parties' agreement and to accept, as a baseline, the supports approved by the reviewer (in confirming the original decision of the CEO's delegate) are reasonable and necessary supports the Tribunal should affirm.
While it is difficult to assess the efficacy of supports funded under HRZI's 2019 Plan, previous decisions made by the NDIA to continue funding for reasonable and necessary supports under participant plans for HRZI suggest she continues to have a disability which qualifies her as a participant in the NDIS. The available materials relevant to HRZI's disability and to her ongoing disability support needs in the context of the matters set out in s 33(5) and s 34 of the NDIS Act, including her SGA and her unchallenged evidence, broadly align with the matters agreed between the parties.
Subject to subsequent findings in respect of supports which are in contention, I am satisfied the Tribunal has power to act in accordance with the agreement of the parties and it is appropriate to do so in the particular circumstances of this case.

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The difficulties to which I have alluded in respect of HRZI's disability sharpen the point of the dispute between the parties about the NDIA's submission the provision or funding or supports is limited to impairments which meet the thresholds set out in disability requirements.
HRZI asserts, as a participant in the NDIS she is entitled to funding for reasonable and necessary supports in respect of her support needs and in order to achieve her goals and aspirations. The funding of supports, she argues, is not limited to impairments the NDIA has accepted meet the disability requirements. She contends the statutory scheme established under the NDIS Act proceeds on the basis reasonable and necessary supports may be provided or funded in relation to her disability, and this is not confined to any particular 'impairment'.
In HRZI's submission, the term 'supports' should be construed broadly and consistently throughout the NDIS Act according to its meaning as inclusively defined in s 9 and in ordinary usage. She asserts a narrow construction is not consistent with the objectives and principles of the NDIS Act, or the way in which supports are dealt with in different sections of the NDIS Act.
HRZI maintains s 13 and s 21(2) allow for supports to be provided to people with disability who are not participants in the NDIS and who do not therefore meet the disability requirements in s 24. For this reason, HRZI argues, the principle for which the NDIA contends, that supports must relate to impairments on which the participant qualified for access to the NDIS, cannot be sustained. The legislation, so the argument goes, evinces no intention for decision making under Part 2 of Chapter 3 to be referable to the threshold of 'impairment' which is applicable under s 24. Had the Parliament intended such a nexus, HRZI asserts it could have done so, but instead of importing any such limitation on supports, provision is made in s 35(1)(b) for rules to be made in respect of reasonable and necessary supports or general supports that will not be provided or funded under the NDIS.
HRZI submits the qualification of NDIS amounts by reference to a participant's impairment for the purposes of the compensation recovery provisions in s 106(1)(b) and 107(1)(b) would be otiose if the construction contended for by the NDIA were to be accepted. There would be no cause for the qualification, HRZI asserts, as, under the NDIA's construction of supports, NDIS amounts would only be payable in respect of impairments which meet the disability threshold in s 24, rendering the qualification and the words 'participant's impairment' in s 106(1)(b) and s 107(1)(b) with no work to do.
Further difficulties arise in respect of the Supports Rules, HRZI alleges, as the NDIA's construction conflates 'disability' and 'impairment' such that the bar on providing or funding a support if it is not related to the participant's disability under rule 5.1(b) would either be redundant, or it would not sit comfortably with the distinction drawn in the NDIS Act between 'disability' and 'impairment', which are not used interchangeably. The distinction drawn was the subject of detailed consideration by Mortimer J in Mulligan v National Disability Insurance Agency (Mulligan),[41] and in HRZI's submission, an impairment is one element of disability, whereas disability refers to a person's impairments as well as to social barriers they face in connection with the impairments. The preferred conception of disability the NDIS Act embraces is, HRZI suggests, broad and not limited to impairments that satisfy the criteria in s 24. This, HRZI argues, is consistent with the conception drawn by the Productivity Commission report on Disability Care and Support (Productivity Commission Report), which refers to disability as the interaction of long-term physical, mental, intellectual or sensory impairments, and attitudinal or environmental barriers that 'hinder ... full and effective participation in society on an equal basis with others',[42] and Article 1 of the Convention on the Rights of Persons with Disabilities, to which Mortimer J referred in Mulligan.
To illustrate the point, HRZI takes the example of a person with a neurological impairment, such as multiple sclerosis, who requires psychological supports. In HRZI's example, under the construction preferred by the NDIA, the psychological supports could not be funded if the permanent impairment was damaged neurological function. HRZI argues, as a matter of practicality, it would not be possible to ringfence supports on the basis of accepted permanent impairment as a person's impairments may interact with each other and supports may relate to more than one impairment.
In the NDIA's submission, the terms 'disability' and 'impairment' are integrally connected in Chapter 3 and the Support Rules, which were expressly made for the purposes of s 33 and s 34.
The NDIA asserts a 'support' is assistance or care given to aid or assist something: it is a practical description of the means by which a person with disability is assisted[43]. For the purposes of the NDIS Act, the NDIA argues, a support is a thing that gives aid or assistance to address an impairment that satisfies the criteria for accessing the NDIS under s 24 or s 25 of the NDIS Act. The argument runs on several legs.
The NDIA asserts a person only meets the access criteria in s 21(1) if they have an impairment of a particular kind, namely one that is permanent for the purposes of s 24(1)(b) and s 25(1)(a)(i) and (ii). Consequently, the NDIA argues, the NDIS Act creates a scheme which may only be accessed by a subset of persons with disability and the purpose of s 24 and s 25 is to identify that specific, limited cohort.
The NDIA notes the CEO's duty to facilitate preparation of a participant's plan under s 32 is triggered by the person satisfying the access criteria for acceptance into the NDIS. The temporal connection between these events, the NDIA argues, supports a reading that a positive result from Part 1 in Chapter 3 is intended to shape what then occurs in Part 2 of Chapter 3. A participant's plan made under s 32 and s 33, so the argument goes, is intended to address the impairments which are found to meet the statutory thresholds in s 24 and s 25. This is supported by a sequential reading of Chapter 3 in the ordinary way, where the provisions of Part 2 must be read in light of the preceding provisions in Part 1.[44]
The NDIA asserts the matters about which a decision maker must be satisfied in s 34(1)(b) and (d), in respect of assistance to undertake activities to facilitate social and economic participation and the effectiveness and benefit of the particular support, must be construed in a manner which gives them practical effect.[45] As the question of assistance or benefit derived from a support is relative, and to some extent this turns on an assessment of the person's functional capacity, in order to have any practical effect, the NDIA asserts the assessment in respect of reasonable and necessary supports is directed to impairments which satisfy s 24 or s 25.
A distinction is to be drawn, the NDIA asserts, between providing supports in the context of a participant's plan under Chapter 3, and the provision of general supports and assistance under Chapter 2. In the NDIA's submission, the former is relevant to the Tribunal's review, whereas the latter, dealing with forms of support not related to participant plans, is irrelevant to the question arising in this review. The path by which a person may become a participant in the NDIS, including under s 21(2), does not advance the matter in the NDIA's submission, as reasonable and necessary supports under s 33 and s 34 are not determined in reference to an impairment decision alone.[46] The NDIA argues the approval of supports is a matter for evidence: the supports must refer to an impairment which has previously been found to satisfy s 24 or s 25, or to an impairment which may presently be established by evidence to satisfy those thresholds. Unless the thresholds in s 24 and s 25 are met, the NDIA argues, a support cannot be approved under an SPS for a participant.
The definition given to term 'participant's impairment' in s 9(1) is expressly in respect of the disability requirements and the early intervention requirements and this, the NDIA asserts, indicates the NDIS Act is concerned only with impairments which meet those thresholds under s 24 and s 25. The NDIA relies on previous Tribunal decisions,[47] including VGCP and National Disability Insurance Agency (VGCP).[48] The NDIA submits in VCGP the Tribunal held that supports are paid in respect of impairments that meet the disability requirements in s 24 or the early intervention requirements in s 25. The NDIA refers to the provisions for recovery of 'NDIS amounts' in s 106 and 107 and suggests it would be irrational for the Parliament to authorise recovery of NDIS amounts in respect of a participant's impairment which satisfies s 24 or s 25, but not authorise recovery of any NDIS amounts paid in respect of other impairments. A construction which allows a person to obtain a windfall gain, being paid twice for the same support, cannot have been intended, the NDIA argues, and it may be avoided by reading supports authorised under s 33(2) as limited to supports in respect of an impairment that satisfies the definition of participant's supports in s 9(1) and the thresholds in s 24 or s 25_._
The NDIA submits, the lifelong status of a participant in the NDIS reflects the thresholds on which the person was granted access, specifically in respect of permanency of impairments and the likelihood the person would require support under the NDIS for their lifetime. In the NDIA's submission, the NDIS does not contemplate the provision of supports to a person who has an impairment which is not permanent, and the NDIS Act should not be read as authorising the provision of support for a non-permanent impairment simply because the person happens to suffer from some other, wholly unrelated, impairment which is permanent and qualifies their access to the NDIS.
The NDIA asserts a construction which allows for the provision of supports to a participant for any impairment would lead to inequitable or arbitrary outcomes. In order to exemplify the inequitable result, the NDIA compares a person with a depressive illness whose illness is not sufficiently severe or permanent to meet the disability requirements in s 24 with a participant who has a permanent impairment and develops a wholly unrelated depressive illness. The first person would not be entitled to supports under the NDIS for their depressive illness whereas, the NDIA argues, under the construction contended for by HRZI, the second person, the participant, would be entitled to supports for their depressive illness. Parliament, the NDIA contends, could not have intended a person's entitlements to support for such an illness would hinge on whether they had become a participant for some wholly unrelated reason. An arbitrary result of that kind, so the argument goes, should not be entertained and a construction which provides consistency and fairness should be preferred.[49]
It is the NDIA's submission the statutory objective of financial sustainability of the NDIS supports a construction which promotes operation of the NDIS in a financially sustainable way, whereby the provision of supports is limited to persons with impairments of a particular kind, namely an impairment which satisfies s 24 or s 25. A construction of this kind, the NDIA argues, is consistent with rule 5.1(b) in the Supports Rules and the construction adopted by the Tribunal in McLaughlin v National Disability Insurance Agency (McLaughlin)[50] and, furthermore, it will ensure the funding of supports is only used to address the kinds of serious disabilities that the NDIS was intended to address.[51]
The NDIA submits the term 'disability' as it is used in rule 5.1(b) does not refer to any disability, whether or not it would justify access to the NDIS, but it refers to a disability that is attributable to an impairment of a particular kind, as set out in s 24 or s 25. The NDIA accepts rule 5.1(b) is not limited to a disability by virtue of which a participant was granted access to the Scheme but extends to any disability which would justify such access.[52] To the extent the Tribunal's decision in McLaughlin suggests a broader construction, which the NDIA asserts was not the point being made by the Tribunal, it should not be followed.
Considering these extensive and closely argued submissions, it is necessary to consider the correct approach to construing the NDIS Act. This was addressed most recently in National Disability Insurance Agency v Foster (Foster)[53], in which Derrington J, with whom Katzmann and Perry JJ agreed, said;

[130]

Furthermore, the NDIS Act, generally, and the provisions of Parts 1 and 2 of Chapter 3, in particular, have a remedial and beneficial purpose. While it has been said remedial and beneficial legislation should be accorded a "fair, large and liberal interpretation", rather than one which is literal or technical, and if a particular section is ambiguous, it should be given a broad construction, so as to effectuate the beneficial purpose which it is intended to serve, attention must be squarely focussed on the meaning of the words used as to commence the process of construction by posing the type of construction to be afforded - liberal, broad or narrow - may obscure the essential question regarding the meaning of the words used.[55] The provisions which are relevant to the matters raised by the parties in respect of the provision or funding of supports should, therefore, be given as generous a construction as the actual language of those provisions permits.[56]
The NDIA's assertion the NDIS Act should be read sequentially, in the ordinary way in which a document is read, whereby the processes in Part 1 of Chapter 3 inform the processes in Part 2 of that Chapter, must be treated with some caution. Like many statutes, the NDIS Act does not proceed in the way of a narrative, rather it is comprised of Parts and Chapters dealing with particular but inter-related aspects of the legislative scheme it establishes. No doubt, the principles of construction require the NDIS Act to be read as a whole with attention to the sequence in which it was drafted.[57] Importantly, each provision must be read in the statutory context in which it is placed, with regard to what precedes it and what follows it.[58] The requirement for caution arises when this principle is applied more broadly to entire Parts of the legislation. This might be appropriate where the legislation sets out a step-by-step approach or a methodology in respect of the subject matter,[59] but that is a matter for careful consideration.
It can be accepted Chapter 3 of the NDIS Act deals with matters which, as a matter of practical reality, have a sequential character to which the principles in Part 1A of that Chapter apply. A person first applies to be accepted into the NDIS as a participant, whereupon, if the application is successful, then the CEO is obligated, within 21 days, to commence facilitating the preparation of a participant's plan with the person, setting out (among other things) the supports which will be provided or funded under the NDIS. Section 21 is a gateway provision setting out access criteria which must be met by a prospective participant in the NDIS. Once a person passes through the gateway and becomes a participant, the supports which will be provided or funded for the participant are then to be determined in the context of a participant's plan. Provision is made for progressive decision making by way of variation, reassessment (previously review) and replacement of a participant's plan.
The statutory processes for the grant of access to the NDIS are distinct from the statutory processes for the formulation and making of a participant's plan.[60] Nevertheless, as will appear, the scheme of the NDIS Act proceeds on the basis the disability which qualifies a person to become a participant in the NDIS under Part 1, including the impairments which meet the disability requirements or the early intervention requirements, is the subject of a plan for the participant formulated under Part 2 in accordance with the principles set out in s 31.
Once a person is granted access to the NDIS, there is no provision for them to apply again should they suffer new impairments which cause disability in the context of any change in medical conditions they might experience. Changes of this kind are to be dealt with in the context of the participant's plan.

[137]

The issues of construction raised in this case were not squarely put to or addressed, in ratio, by the Federal Court in Mulligan, Davis or Foster.
Nevertheless, on these authorities, the statutory questions posed for the purposes of the disability requirements in s 24 are squarely directed to the prospective participant's disability, measured by the impairment or impairments to which it is attributable, in respect of which supports might be required. While s 24(1) operates on concepts of 'impairment', the concept of impairment enables assessment of the severity and permanency of a person's condition, and of the effects of that condition.[65] The person's condition in this context, adopting the statutory language, may be equated with their disability rather than a particular medical condition.[66]
Thus, it can be understood, conceptions of 'disability' and 'impairment' under the NDIS Act should not be confused as interchangeable. A person's disability may not be confined to or adequately described as 'an impairment' to which it is attributable. The disability may be multifactorial and attributable to more than one impairment, as the plain words in s 24(1)(a) clearly contemplate.
The word attributable has particular work to do.[67] For the purposes of s 24, it refers to a causal connection between a person's disability and the impairment or impairments from which it results. The threshold of attributability does not import a sole cause test, requiring the person's disability to be solely or only attributable to one or more impairments which meet the thresholds in s 24(1)(b), (c) and (d), and it does not require all impairments to which the person's disability might be attributable to meet those thresholds. The threshold of attributability is met if the person has a disability that is attributable to one or more impairments which meet those thresholds. Similar relativities between disability and impairment arise in s 25, where a person's future needs for supports in relation to disability are to be considered in reference to the likely benefit of early intervention supports being provided in respect of developmental delay in a child or impairments which meet the thresholds in s 25(1).
Nonetheless, conceptions of 'disability' and 'impairment' are closely inter-related: causally, experientially, functionally, progressively and legally. 'Disability' refers to the overall effect of a person's impairments on their capacity to function and to participate in all aspects of life, whereas 'impairment' refers to loss (including reduction) of or damage (including variation) to a person's intellectual, cognitive, neurological, sensory or physical function.[68] Without resorting to relativistic enquiry, a person's disability is attributable to functional impairment or impairments, including what the person can and cannot do, as well as barriers the person experiences which impede their social or economic participation, or their participation in personal or community life.[69] When considering the access provisions in Davis, Mortimer J explained:

[141]

While impairment is used as a measure of the severity and permanence of a person's disability for the purposes of s 24 and s 25,[74] it is the person's disability which qualifies their access to the NDIS (subject to other applicable criteria) under s 21(1) and, subsequently, their continued status as a participant under s 29 and s 30.
Proceeding on this basis, it does not follow an impairment may qualify a person for access to the NDIS. The NDIA's submissions to this effect must be approached with caution.
Essentially, there are two ways in which a person might meet the access criteria. The first is under s 21(1), where a person must satisfy the age, residence and disability requirements or early intervention requirements. The second is under s 21(2), where the CEO must be satisfied the person received supports under a prescribed program to which they would not be entitled should access be granted to the NDIS, and the person meets any other requirements set out in the Rules. As I comprehend the NDIA's submissions, they are primarily directed to the access criteria in s 21(1), which was at the heart of Mortimer J's considerations in Davis, and to the disability requirements in s 24 and the early intervention requirements in s 25, in particular.
The NDIA submits s 21(2) is not presently applicable or relevant. This does not sit well with the assertion no access determination was made in HRZI's case as she was within a category of persons who were transferred into the NDIS. If the assertion is correct, the basis on which HRZI met the access criteria must have been under s 21(2). In any event, s 21 in its entirety is a relevant consideration when addressing the parties' submissions in respect of the proper construction of the legislation, particularly in respect of disability, impairment and supports which may be provided or funded.
For the purposes of the access criteria in s 21(1), the CEO must be satisfied the person meets the disability requirements or the early intervention requirements at the time of considering the person's request for access to the NDIS. The requirement for a point in time assessment is a significant feature of the gateway character of the access criteria set out in s 21(1).[75] Even though this assessment has a temporal component, the disability requirements and the early intervention requirements have ongoing significance in the operation of the NDIS in two important ways.
Firstly, under s 30 (1)(b), the CEO's discretion to revoke a person's status as a participant is enlivened if the person does not meet the disability requirements or the early intervention requirements. The discretion is not confined to the cohort of participants who gained access to the NDIS under s 21(1), but it also applies to those who gained access to the NDIS by the alternative method provided for in s 21(2). Quite clearly, the thresholds of disability set out in the disability requirements or the early intervention requirements continue to apply to all participants in the NDIS.
This is so, even though the NDIS Act does not expressly require ongoing or periodic review of a participant's status in reference to the disability requirements or the early intervention requirements. When this provision is considered with the point in time assessment under s 21(1), it is clear the Parliament intended a progressive approach to decision making under the NDIS Act. The NDIS Act provides for periodic review or reassessment of a participant's plan, whereby the participant's disability support needs and related matters may be progressively addressed and any change in the relevant circumstances of the participant might be addressed.
Secondly, disability requirements and the early intervention requirements are referred to in the definition of the term participant's impairment in s 9(1):

[151]

These are essential considerations under s 34(1) when determining supports which may be reasonable and necessary. While s 34(1)(a) requires the CEO to be satisfied the supports to be provided or funded under the NDIS will assist the participant to achieve his or her goals and aspirations, subsection 34(1)(b) directs attention to activity: The support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation. The principle set out in s 4(11) is to this effect.
When determining what reasonable and necessary supports should be approved in a particular case, the statutory question relating to supports, and fact finding for the purposes of s 33(2), is directed to the participant's disability and related support needs. The enquiry is not confined to any particular impairment or to impairments of a particular kind, rather it extends to the effects of impairments to which the participant's disability is attributable. It has been said this is a fact-intensive and highly individualised exercise,[82] particularly with regard to the matters set out in s 33(5) and s 34, as well as applicable Rules, about which a decision maker must be satisfied.
Furthermore, the composite nature of the phrase reasonable and necessary supports does not lend itself to disaggregation, [83] albeit each of the adjectival conditions has work to do. While there is some decisional freedom in the largely factual, qualitative exercise of determining what amounts to a reasonable and necessary support in the circumstances of a particular participant, and these may be things about which reasonable minds may differ, two important contextual factors flow from the adjectival qualification of supports by the words reasonable and necessary which must be kept steadily in mind. The first is the adjectival qualification directs attention to the participant's circumstances, including the nature and effects of their disability and the impairments to which it is attributable, and their goals, objectives and aspirations. Secondly, the qualification directs attention to the participant's disability support needs and the threshold at which expenditure of public money for a support is justified in the factual circumstances of the particular case, consistent with the objectives, guiding principles and provisions of the legislative scheme.
Matters of this kind were addressed by the Full Court in WRMF:

[154]

Under the construction pressed by the NDIA, a person with disability attributable to multiple impairments (as distinct from a medical condition) would only be able to obtain supports under the NDIS for the particular impairment which satisfies the disability requirements at a point in time. Supports could not be provided or funded for other impairments to which the participant's disability is attributable from time to time which do not meet those thresholds.
Under this construction, it would be necessary to identify which impairment or impairments (and the effects of impairments) are instrumental in the participant meeting the disability requirements, and to distinguish other impairments (and their effects) which do not meet the disability requirements or the early intervention requirements, in order to determine if a particular support can be funded. Setting the likely practical and evidentiary difficulties of such a requirement to one side, including the burden this would place on participant's and decision makers, the construction assumes a narrow meaning of disability which is confined to an impairment of a particular kind as set out in s 24 or s 25.[86]
As so many cases clearly demonstrate, disability may be multifactorial in terms of the impairments to which it is attributable and the effects of those impairments from time to time. It can be accepted impairments may not be stable and might wax and wane but still endure and be considered permanent.[87] Similarly, over the course of a lifetime, a participant's enduring disability, too, may not be static and may be affected by variations in and interactions between medical conditions, impairments and their effects upon the person's functional capacity or their capacity to participate in life.
A narrow construction of disability is not consistent with the plain language and the meaning of the words used in the legislation. It is not consistent with the principles set out in s 4, s 17A, s 31 and it does not best serve the objectives set out in s 3.
Having regard to the particular importance of considering the legislative scheme as a whole,[88] and the intentions of the legislature which may be derived from the words used in the objectives and principles and extraneous materials referred to in the parties' submissions and relevant authorities,[89] a narrow construction of this kind is not consistent with the broad conception of disability which permeates the NDIS Act. As Mortimer J observed in Mulligan's case:

[158]

The NDIA argues the decision in McLaughlin implies the "inner circle" of impairments, being impairments which will get through the respective filtering "hoops" contained in s 24,[93] may only be extended to include impairments which were not in fact considered at the time of the access decision (but would have met the criteria [in s 24] if they were considered).[94] Whether or not the implication can be drawn, the Tribunal found the particular impairment, which had not been considered to meet the disability requirements, would constitute the kind of impairment which could give rise to supports.[95]
The NDIA's assertion supports must be viewed through the lens of a participant's impairment which meets the thresholds in s 24(1) or s 25(1) misconstrues and unduly narrows the statutory focus on disability.
No different interpretation is derived from a sequential reading of Chapter 3 or from close consideration of s 31, s 33 and s 34. The ambit of the phrase reasonable and necessary supports in s 33(2) is shaped by the matters about which the CEO must be satisfied under s 34. Those matters and the principles set out in s 31 do not s 34 support a narrow interpretation of support or of disability.
The key determinant which must steadily be kept in mind is the essential nexus between the support and the person's qualifying disability. If the support is established as sufficiently related to the person's disability, on which their status as a participant relies, the support may be provided or funded under the NDIS if all other essential criteria and Rules are met.
The inclusion of a definition of participant's impairment in s 9(1) is no sound basis on which to adopt a narrow construction of supports in the context of construing the access provisions in Part 1 of Chapter 3 or the plan provisions in Part 2 of Chapter 3. Had Parliament intended the provision or funding of supports to be referable only to a participant's impairment it would have been a matter of simplicity to do so in the terms of Chapter 2 or in Part 2 of Chapter 3. The fact it did not do so, weighs against the narrow construction of supports and the broad application of participant's impairment contended for by the NDIA.
Furthermore, if the narrow construction of supports the NDIA prefers was to be adopted, it would be necessary to give the word supports a different meaning in Chapter 2 of the NDIS Act. Supports which may be provided under s 13 are provide to people with disability who are not subject to the disability requirements or the early intervention requirements. A construction which proceeds on supports being given a consistent meaning is to be preferred.
For these reasons, the NDIA's submission a support is a thing that gives aid or assistance to address an impairment of a particular kind, namely one which satisfies the disability requirements or the early intervention requirements or a participant's impairment, cannot be accepted. There is no express or implied limit to, or exclusions from, supports which may be provided or funded in the circumstances of any case where the support is related to the participant's disability and the statutory thresholds set out in s 33 and s 34, and in the applicable Supports Rules, are satisfied. When dealing with a specific kind of support in WRMF,[96] the Court concluded the legislative scheme intends no such limits or exclusion, and no such hard lines to be drawn.[97]

[159]

The NDIA's assertion the NDIS is intended to assist persons with impairments of a particular kind and the supports provided would not be unlimited[98] must be approached with some caution. By viewing supports as things which might aid or assist with an impairment which satisfies s 24 or s 25, the NDIA argues supports would only be provided or funded to address the kinds of serious disabilities the NDIS is intended to cover and this, so the argument goes, provides a limit on the funding of supports under the NDIS which enables the NDIS Act to achieve its purpose of providing supports in a sustainable way
No doubt the financial sustainability of the NDIS is a relevant consideration in giving effect to the objects of the NDIS Act and it is a mandatory consideration in the performance of functions and the exercise of powers under the Act. It is in respect of these considerations and obligations, provisions are made in Chapter 6 of the NDIS Act. The NDIA has functional responsibilities managing, advising and reporting on the financial sustainability of the NDIS (s 118(1)(b)). The Board has related functions (s 124(1)(a), 125A, s 172(4)) including in respect of the report of the scheme actuary under s 180B(1) and review by a reviewing actuary under s 180E.
In addition to these mechanisms and obligations, the funding of supports is subject to criteria set out in s 33(5) and s 34, as well as extensive rules made for the purposes of s 35 and s 209. I note in passing, under s 209(3), the Minister is obliged to consider the financial sustainability of the NDIS when making rules.
No materials have been adduced by the NDIA, or from the Board or the scheme actuary or a reviewing actuary, in support of the construction the NDIA contends for, limiting the definitional scope of supports which may be funded. The proposition a limit on supports, by construction at least, is important in ensuring the financial sustainability of the NDIS is not, therefore, substantiated.
In consideration of the beneficial nature of the NDIS Act and the extensive framework of provisions which relate to ensuring the financial sustainability of the NDIS, the proposition a narrow construction of supports should be adopted as it best serves the financial sustainability objective and related purposes is not made out.

[160]

The statutory scheme provides for progressive decision making, particularly in respect of participant's plans and the provision or funding of a participant's disability support needs. The periodic nature of a participant's plan and the provisions for review and reassessment of such plans make this very clear. This is reinforced by the requirement in s 33(5)(f), when deciding whether or not to approve an SPS, regard must be had to the operation and effectiveness of any previous plans of the participant.
In this context, the point in time assessment required for the purposes of the access criteria in s 21(1) cannot be applied as a standard against which supports relating to a participant's disability are to be determined. The provisions for reviewing a participant's plan in s 48 (presently s 47A and s 48 following passage of the Amendment Act) clearly allow for changes in a participant's circumstances to be progressively taken into account.
When considering supports which might be approved under s 33(2) for a participant, there is a factual question in respect of the persistence of the participant's qualifying disability. The impairments to which the participant's qualifying disability is attributable, which meet the thresholds in s 24(1) or s 25(1), must be taken into account. It does not follow other impairments to which the person's disability is attributable cannot be taken into account.
Thus, consistent with rule 5.1(b) of the Supports Rules, for reasonable and necessary supports to be provided or funded for the participant the supports must be related to the disability on which the person's status as a participant depends. This is so, whether or not the impairments to which their disability is attributable are the same as the impairments on which the participant was originally found to meet the disability requirements or the early intervention requirements for the purposes of s 21(1). The important threshold is the participant continues to have a disability which meets the disability requirements in s 24 or the early intervention requirements in s 25.
It does not follow, and it should not be assumed, supports may be provided or funded in relation to any impairment a participant might suffer from time to time. Under rules 5.1(b) of the Supports Rules, a support which is not related to the participant's disability cannot be funded under the NDIS.
Subject to all other essential criteria in s 34(1) being met, applying the thresholds set out in s 33(5) and having regard to any justification for the expenditure of public funding to the participant for the support, a reasonable and necessary support may be provided or funded for a participant in the NDIS where the decision maker is satisfied the support is related to the disability which qualifies the participant under the NDIS.
Take, for example, a participant whose disability is attributable to a cognitive impairment who is involved in an accident, wholly unrelated to their disability. In the accident, the person sustained a broken leg which is medically treated. During the subsequent recovery period, the person requires additional therapeutic, domestic and transport supports. The additional supports which are not related to the participant's qualifying disability cannot be provided or funded, whereas, if it is established the person requires additional supports which are related to their disability, those additional supports may be provided or funded if they are found to be reasonable and necessary supports under s 34.
The key question in such a case is not whether the support is related to an impairment of a particular kind but whether it is related to the participant's qualifying disability. In any such case, the essential relational nexus between the support and the participant's disability is a matter of fact and degree to be decided on the basis of relevant probative materials.

[163]

The NDIA described these medical conditions as having qualified the Applicant for participation. That may be so if, consequent to impairments resulting from these conditions, HRZI was in receipt of a disability support pension and transferred into the NDIS under the access criteria in s 21(2), but this does not assist in respect of the application of the disability requirements in s 24 or identifying HRZI's qualifying disability which informs her status as a participant in the NDIS.
The information Dr MacIver provided in HRZI's NDIS Access Request form on 19 October 2016 is helpful.[100] The doctor described HRZI's disabilities as Mild brain injury, Chronic Pain Syndrome, Complex PTSD and Chronic Anxiety. He discussed the impact of HRZI's disabilities on her mobility, communication, social interaction, learning, self-care and ability to self-manage. Dr MacIver reported HRZI did not need assistance with mobility, self-care and self-management, but she needed assistance with communication, social interaction and learning. The information provided by Anne Corver, HRZI's then support facilitator, on 28 November 2016 aligns with that provided by Dr MacIver.
On this material, at the time, it is probable HRZI had disability attributable to psychiatric conditions which resulted in cognitive and psychosocial impairments. On the evidence of Dr MacIver and Ms Corver, it is possible these impairments were permanent, and they substantially reduced HRZI's capacity to undertake activities involving communication, social interaction and learning, and they affected her capacity for social or economic participation such that she was likely to require supports under the NDIS for her lifetime.
It is possible HRZI had disability attributable to physical impairment, but this is not presently made out on the available materials. There is a real question about the extent to which HRZI's reported pain symptoms, and the chronic pain syndrome diagnosed by Dr MacIver, relate to or result in impairments to which her disability is attributable. On the evidence of Mr Ransan-Elliot and Ms Ortiz, the restrictions of motion in HRZI's spine (including her neck), shoulder and in her hips would be consistent with physical impairments which may be amenable to improvement with treatment. The chronic pain syndrome Dr MacIver diagnosed may have a different character, possibly involving impairment attributable to a psychiatric condition or disability attributable to sensory or neurological impairment.
Subsequently, on 2 July 2020, the NDIA recorded HRZI's primary disability as Ankylosing spondylitis.[101] The material on which this finding was made has not been provided to the Tribunal. I note the following reference in undated planning notes from the plan review process undertaken in 2020:

[165]

There is not sufficient material to determine these matters with certainty. If HRZI's chronic pain syndrome has a physical character, the resulting mobility impairments might align with those identified by Mr Ransan-Elliot and Ms Ortiz which may be amendable to improvement with treatment, whereas if the syndrome has a psychiatric character, the mobility impairments would need to be considered in the context of HRZI's long-standing psychiatric issues and related impairments which, by implication at least, were accepted as permanent.
The present materials are not sufficient to make positive findings about these matters. The Tribunal cannot draw factual findings out of thin air or make factual findings about impairments and disability on the basis of unsupported assertion.
On the report of Dr Rajagopal, HRZI may have other medical conditions which result in impairment and affect her capacity to function, including vestibular migraine, visual vertigo, anxiety disorder and motion sickness susceptibility, as well as other conditions the doctor identified when reciting HRZI's medical history. Furthermore, on the report of Dr French, it appears HRZI suffers from chronic obstructive pulmonary disease. With regard to other conditions or impairments HRZI asserts she suffers, there is not sufficient evidence to make positive findings about any impairments these conditions cause which contribute to her disability or the permanence and effect of any such impairments on her capacity to function and participate in life when pursuing her goals and aspirations.
In the hearing HRZI informed me she is pressing five conditions in respect of supports, with all other conditions set out in her Statement of Lived Experience and in subsequent documents she provided the Tribunal amounting to relevant circumstances, which should be taken into account. The five conditions are mild brain injury, chronic pain syndrome, complex PTSD, chronic anxiety and ankylosing spondylosis. In submissions, the NDIA referred to these five as agreed impairments/conditions.
This reflects an unfortunately common confusion between a person's medical conditions and impairments the person may experience which cause disability. Such confusion is not assisted by the statutory language in s 24(1)(a) which is presently applicable and refers to disability attributable to ... one or more impairments attributable to a psychiatric condition.[103]
Close examination of the contemporaneous records from the plan review conducted in 2020 reveals a difficulty: the assessment focussed on the permanence and functional impact of HRZI's medical conditions.[104]
In a case of the present kind, involving many asserted psychiatric and physical medical conditions[105] and disputation about impairments in respect of the disability requirements and reasonable and necessary supports which are to be funded under the NDIS, this is particularly problematic. There is only scant medical or other probative evidence of HRZI's disability and the impairments to which it is attributable. In all likelihood, it is an unfortunate consequence of the manner in which HRZI was accepted into the NDIS as a participant and, subsequently, the nature and the extend of relevant records within the NDIA's holdings, at least insofar as such materials have been produced to the Tribunal.
This causes evidentiary difficulties identifying impairments to which HRZI's disability is attributable to for the purposes of the disability requirements. No such relevant information is set out in participant plans made for HRZI. Consequent difficulties arise in the detailed factual examination that is required for the purposes of s 33(5) and s 34.
Nevertheless, as I have said, I am prepared to accept the agreement of the parties on these questions.
Doing the best with the available materials in the context of matters agreed between the parties, I will proceed on the basis that:

[171]

Short term goal > > To be supported to access stable and appropriate accommodation. > > I will access support workers to assist with maintenance tasks and domestic duties so that I can maintain my tenancy. I will work with my allied health supports to increase my capacity to live as independently as possible and support my physical and mental wellbeing. > > • My allied health supports will assess and report on my needs and deliver appropriate interventions. > > • My support workers will assist me with domestic duties and maintenance tasks to maintain my tenancy. > > • My support coordinator will assist me to identify and connect with appropriate supports. > > Short-term goal > > To be supported to increase my current level of community participation. > > I will access support workers to assist with community participation activities. > > I will work with my allied health supports to increase my capacity to engage in community participation. > > I will attend appropriate group activities, with support, to engage in my interests and build my capacity. > > I will investigate options for mobility equipment and provide quotes and assessments to the NDIA for consideration. > > • My support coordinator will assist me to identify and connect with appropriate supports. > > • My allied health supports will assess and report on my needs and deliver appropriate interventions. > > • My support workers will assist me with engaging in community participation activities. > > Medium or long-term goal > > To be supported to maintain my physical and mental wellbeing. > > I will access support workers, community resources, and mainstream resources to > > assist in undertaking activities related to improving my physical and mental wellbeing. > > I will work with my allied health supports to increase my capacity to manage my physical and mental wellbeing independently. > > • My support coordinator will assist me to identify and connect with appropriate supports. > > • My allied health supports will assess and report on my needs and deliver appropriate interventions. > > • My support workers will assist me with engaging in activities to maintain and improve my physical and mental wellbeing. > > Medium or long-term goal > > To be supported in activities of interest like returning to study, dancing, and planning to start my own business. > > I will access support workers and educational resources to assist me with completing my yoga teacher and dance teacher training courses. > > I will access support workers to assist me in developing a business plan and identifying appropriate venues, grants, and other resources. > > I will work with my allied health supports to build my capacity to engage in study and business planning. > > • My support coordinator will assist me to identify and connect with appropriate supports. > > • My allied health supports will assess and report on my needs and deliver appropriate interventions. > > • My support workers will assist me with engaging in study and business planning tasks.

[186]

This is a relevant consideration in respect of s 34(1)(f) of the NDIS Act, as funding for temporary crisis accommodation and social housing is a matter for relevant Commonwealth, State or Territory agencies and services, and, generally, it is not most appropriately funded under the NDIS. Funding STA support on this basis is not reasonable and necessary.
HRZI's request for additional funding for STA for the purposes of accommodating herself at Rockabilly festivals or when travelling around Australia for cultural reasons is to be assessed in relation to her disability. On the available evidence, I am not satisfied STA supports of these kinds are sufficiently related to her disability. The purposes of the STA support, temporary accommodation at festivals and when travelling around Australia, are at a remove from HRZI's disability support needs. It can be accepted the temporary accommodation costs associated with such activities are related to HRZI's cultural and business aspirations, or to her spiritual beliefs and her desire to travel. In that regard, however, the temporary accommodation costs may be considered as costs of daily living anyone would incur when undertaking such activities. Under rule 5.1(d) costs of this kind are not to be funded under the NDIS.
With regard to HRZI's assertion she requires respite from the house assessed by Ms Black, which HRZI asserts triggers my trauma, this may be accommodated within the terms of the NDIA Operational Policy if the matters set out in s 34(1) are satisfied and no bar is raised by operation of rule 5.1 are complied with. Importantly, the current Operational Policy sets out the following matters for consideration:
- - the need for Short Term Accommodation is related to your disability
- - it helps you pursue your goals
- - it helps you to participate in the community
- - it's value for money
- - how much support your family and other informal supports provide. [112]
Considering these matters and the legislative provisions and rules to which I have referred, some specificity is required. The matter cannot be dealt with in general terms. Not only must the STA support be considered in relation to the HRZI's disability and her goals, questions about the extent to which it is likely to assist her to participate in the community and whether it represents value for money must also be considered. Probative materials are required, at least to the extent reasonable inferences may properly be drawn.
Presently, while I have carefully considered HRZI's request for STA support for respite reasons, particularly with regard to the PTSD triggers and physical difficulties she and Ms Black alluded to, there are not sufficient materials to enable necessary factual findings to be made for the purposes of satisfying the terms set out in s 34(1).
All that can be concluded, in general terms, is that STA support might assist HRZI to pursue some of the goals and aspirations set out in her SGA. It is not established how the STA support would assist HRZI to undertake activities to facilitate her social and economic participation. I note HRZI's evidence of attending trauma retreats. While it is not clear if such retreats are within the terms of HRZI's STA support request, supports of this kind may well be considered in relation to her disability and may be capable of meeting the threshold for reasonable and necessary supports which might be accommodated within the flexible component of core support funding. No value for money assessment can be made on the present materials. I understand HRZI has been provided with social housing crisis accommodation. On the present materials, it is not possible to assess if there are other types of accommodation family members, carers, informal networks or the community might reasonably be expected to provide.
Considering these matters, on the available materials, presently, HRZI's request for STA support does not meet the threshold of reasonable and necessary support under s 34(1).

[191]

Transport supports of these kinds must be related to the participant's disability. I do not accept HRZI's assertion rule 7.21 does not apply.
I note in passing, at one point, HRZI sought an amount of transport funding for repairs to her vehicle. Vehicle repairs are not within the meaning of modification to a private vehicle, which refers to a vehicle modification required in relation to the person's disability.
With regard to HRZI's assertion she is looking for work and studying for more than 15 hours per week, this is a matter for evidence.
The proposition she is looking for work for more than 15 hours per week is not made out on the present materials.
I accept HRZI's oral evidence she is studying yoga and she does so online. In written submissions, she asserted the yoga course runs for 350 hours and she spends at least 15 hours per week studying.[115] Even if one accepts this is correct, by her own account, the study is an online activity which raises a question why she requires additional transport support funding to undertake this activity.
HRZI also asserts she needs additional transport support funding to undertake activities related to the Rockabilly business she wants to develop, such as attending appointments and meetings. No evidence or quantification of the additional transport support funding required has been provided in support of this assertion. And no compelling explanation has been given why additional transport support funding for these activities should be considered reasonable and necessary in relation to her disability.
To my mind, as will appear, the costs of HRZI developing a Rockabilly café business are at a remove from her disability. It is not presently established transport costs associated with attending business-related appointments and meetings are related to her disability and are attributable to her disability support needs.
On balance, considering the relevant available materials, HRZI's request for Level 3 transport support funding is not made out. Simply put, there is not sufficient evidence to make a positive finding about the additional transport support funding she is seeking on the basis of work or studying. An amount of $1,800 was approved for transport support on the basis this would enable HRZI to obtain transport when she is unable to drive herself as a result of her disability. No additional transport support funding can be approved as, on the present materials, I am not satisfied the additional transport support funding HRZI seeks is reasonable and necessary under the terms set out in s 34(1)(a), (b), (c, (d) and (e) of the NDIS Act.

[192]

HRZI is seeking additional core and capacity building funding under the NDIS to enable her to develop, establish and start a new business. The supports she requests are in the areas of support with communications, administration, training and support workers, as well as an amount of $250,000 in business funding.
The NDIA asserts the NDIS may fund supports which facilitate a participant's social and economic participation, but this does not extend to funding the social and economic participation itself.
For supports the business-related supports HRZI is seeking to come within the meaning of reasonable and necessary supports which are most appropriately funded under the NDIS, it must be established the supports are related to her qualifying disability. Funding cannot be approved where the support is more appropriately funded by other support services than the NDIS or the cost is not attributable to the person's disability support needs.
While the NDIS may fund supports which enable a participant to undertake activities so as to facilitate the participant's social and economic participation, in pursuit of their goals and aspirations, generally, costs associated with the establishment, operation and running of a private business by a participant, including the provision of business development funding, start-up funding or operational support funding, are not most appropriately funded or provided through the NDIS. Those are matters more appropriately funded under Commonwealth, State and Territory business development and support services and programs.
Furthermore, the NDIS will not fund the costs of running or operating a business unless they are attributable to the participant's disability support needs.
Once again, the request for additional supports cannot be dealt with in general terms, specificity is required both in the supports sought and in the factual consideration required under s 33(5) and s 34(1) of the NDIS Act.
Presently, HRZI's request is cast in the context of plans and aspirations relating to a business which lacks any precise form. No business case has been set out, and no detailed plans, costings, strategies or costed proposals in respect of supports being sought have been provided. There is very little to go on.
To the extent HRZI is seeking support for skill development, training or coaching to increase her independence, and the nature and extent is not clear or established by probative materials, such supports might be considered within the scope of funding approved for capacity building in respect of skill development, for example, (an amount of $11,639.40). Other supports she is seeking, in respect of communication support and assistance identifying and, perhaps, accessing relevant support services or funding programs outside the NDIS for example, may be considered within the funding approved for support coordination (an amount of $10,014.00).
Without more detail, considerations of this kind are somewhat speculative, and I will go no further with them.
Having carefully considered the available materials, I am not satisfied the additional supports HRZI is seeking in respect of her business ambitions are made out. I am not satisfied additional supports for developing, establishing, starting and operating the Rockabilly business to which she aspires are reasonable and necessary supports in relation to her disability. At the very least, doing the best with the scant materials, for the purposes of s 34(1)(f) of the NDIS Act, I am not satisfied the requested additional supports (excluding those which may be accommodated on grounds I have discussed) are most appropriately funded under the NDIS.

[193]

As I have said, HRZI revised her request for sex therapist support to the funding for physical therapy and adaptive technology in order to engage in sexual relations and to improve her health in order to have a child. HRZI is seeking funding of $150,000 for supports of this kind.[116]
HRZI asserts she underwent tubal ligation in 1995 and, following a burn injury in 2018, she is not able to use her own eggs. HRZI contends tubal ligation complications have resulted in permanent disability. The best and safest option for her to achieve her goal of having another child, she argues, is for the NDIS to fund an in vitro fertilization (IVF) procedure relying on sperm and egg donors. She is seeking an amount of $40,000 to fund these supports.[117]
The NDIA submits the additional support HRZI is seeking cannot be funded under the NDIS as it does not align with HRZI's SGA and the available evidence does not establish it is related to HRZI's disability. The NDIA argues, furthermore, the procedure is best considered as a health-related support which, under rule 7.7 of the Supports Rules, cannot be funded under the NDIS.
The matter is to be decided under s 33(5) and s 34 of the NDIS Act and the applicable Supports Rules.
HRZI's evidence in respect of tubal ligation complications is not corroborated by any probative medical materials before the Tribunal.
The supports HRZI is seeking are described at a fairly high level of generality, without particularity supported by probative materials. While one can understand the references to IVF in general terms perhaps, HRZI's request on 22 June 2022 for other therapy, and adaptive technology to build capacity and function in order to engage in a sexual relationship is more difficult to comprehend without supporting information.
It may be accepted HRZI aspires to engage in intimate and sexual relationships.[118] The related supports she is seeking, in respect of trauma counselling, physiotherapy and adaptive technology to build capacity and function to engage in a sexual relationship, may well assist her to pursue her stated goal of increasing community participation and maintaining physical and mental well-being. Nevertheless, the evaluative exercise and related fact finding for the purposes of s 34(1) of the NDIS Act requires a level of detail, supported by probative materials. The high level of generality of HRZI's request makes this task difficult.
On the present materials, and without more, I am unable to be satisfied of the value for money consideration in s 34(1)(c). Additionally, there is no medical or psychological evidence on which to assess, for the purposes of s 34(1)(d), the likelihood the supports being sought would be effective and beneficial for HRZI, having regard to current good practice.
That being so, the additional supports HRZI is seeking in relation to sexual function and intimate relationship capability are not presently made out as reasonable and necessary supports.
I note there is provision for capacity building supports from allied health professionals in respect of Improved Daily Living (an amount of $11,639.40 for skills development, training, assessment and therapy) and Health and Wellbeing (an amount of $3,339.80 for assistance with mobility and strength). The supports HRZI is seeking in respect of physiotherapy and other therapy, as well as adaptive technology, to assist build her capacity and function in respect of sexual and intimate relationships may be appropriately funded within these provisions.
With regard to HRZI's request for IVF support to have a child, this is not made out.
Ms Black discusses HRZI's desire to have a child as right in the context of her disabilities and past trauma. Building on this point, HRZI has provided voluminous material in respect of her rights. It is Ms Black's opinion HRZI requires support to assist her re-claim her sexual expression and to address past trauma as Her children were abducted.[119] Notwithstanding this, Ms Black does not recommend related supports, such as those HRZI is seeking, should be provided or funded under the NDIS. There is no psychological, psychiatric or other medical evidence addressing these matters.
In the particular circumstances of this case, having regard to rule 5.1 in the Support Rules, I am not persuaded the IVF and related procedures HRZI is seeking are related to her disability. This is not a matter of rights, rather it is a matter of evidence.
Furthermore, HRZI's aspiration to have another child is not specified or alluded to in her SGA included in the 2020 Plan. An SGA prepared under s 33(1) cannot simply be ignored or stepped around as it is a critical instrument for the purposes of s 37(1). Furthermore, a decision maker must be satisfied the support sought will assist the participant to pursue the goals, objectives and aspirations set out in their SGA.
On the available evidence, I am not satisfied support for HRZI to have another child will assist her to pursue the goals, objectives and aspirations set out in her SGA. HRZI was born in 1970 and there is not sufficient material to establish engaging in an IVF program will assist her to pursue her stated goals.
The present materials are not sufficient to enable a proper evaluative assessment for the purposes of s 34(1)(b), (c) and (d). That being so, I am unable to be satisfied the thresholds in those provisions are met.
With regard to s 34(1)(f), I am not persuaded IVF and related procedures HRZI has alluded to in her request are most appropriately funded under the NDIS. The procedures for which she is seeking support are more related to health considerations than her disability and, in that regard, they are more appropriately provided or funded under support services of the Commonwealth Medicare program.
Furthermore, it is necessary to consider the terms of rule 7.4 and relevant parts of rule 7.5 of the Supports Rules, as follows:

[202]

43 Choice for the participant in relation to plan management > > (1) A participant for whom a plan is in effect or is being prepared may make a request (a plan management request): > > (a) that he or she manage the funding for supports under the plan wholly or to the extent specified in the request; or > > ... > > (2) If a participant makes a plan management request, the statement of participant supports in the plan must give effect to the request, except to the extent set out in subsections (3) to (6). > > (3) If: > > (a) a participant makes a plan management request covered by paragraph (1)(a); and > > (b) subsection 44(1) applies in relation to the participant; > > the statement of participant supports in the plan must provide for the funding for supports under the plan: > > (c) if paragraph 44(1)(a) applies - to be wholly managed by the Agency; and > > (d) if paragraph 44(1)(b) applies - to be managed by the Agency to the extent covered by that paragraph. > > ... > > 44 Circumstances in which persons must not manage funding > > Participant > > (1) For the purposes of paragraph 43(3)(b), this subsection applies in relation to a participant if: > > (a) the participant is an insolvent under administration; or > > (b) the CEO is satisfied that the participant's management of the funding for supports under the plan to a particular extent would: > > (i) present an unreasonable risk to the participant; or > > (ii) permit the participant to manage matters that are prescribed by the National Disability Insurance Scheme rules as being matters that must not be managed by a participant. > > ... > > (3) The National Disability Insurance Scheme rules may prescribe criteria the CEO is to apply and matters to which the CEO is to have regard in considering whether any of the following would present an unreasonable risk to the participant: > > (a) a participant managing the funding for supports under the plan; > > (aa) a registered plan management provider managing the funding for supports under the plan; > > (b) a plan nominee managing the funding for supports under the plan.

HRZI and National Disability Insurance Agency [2023] AATA 481 (24 March 2023)

At a glance

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Decision date

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Judgment (277 paragraphs)

HRZI and National Disability Insurance Agency [2023] AATA 481 (24 March 2023)

Legislation Cited (9)

Cases Cited (1)