Ground 2: Procedural fairness - Mr Klewer not giving evidence
70 By ground 2, Mr Klewer submits that the Tribunal failed to afford him procedural fairness by concluding that it doubted the genuineness of Mr Klewer's "consistently expressed views" that he wanted Ms Klewer to be his overnight carer when he did not give evidence before the Tribunal.
71 At T[151] and [166], the Tribunal found that Ms Klewer being Mr Klewer's overnight carer would not be in his interests:
151. As to Ms Klewer's submission that Mr Klewer's wishes should be respected, I acknowledge that Mr Klewer has consistently expressed the view that he wants Ms Klewer and no one else to be his night time carer to the Tribunal in his statement and to a range of practitioners including Mr Lucas, Dr Ashkar, Dr Wong, Dr Choi and Ms Evans. He has however also expressed to Dr Spira that his 'mother pissed him off sometimes'. I find that, based on the evidence of Dr Ashkar regarding Mr Klewer's lack of self efficacy, and the 'dominance and control' exercised by Ms Klewer over him, I cannot be satisfied as to the extent to which this view is one genuinely held by Mr Klewer, rather than one imposed upon him by Ms Klewer. I accept, based on the Respondent's submission regarding that one of the core principles which underpins the NDIS is enhancing a participant's sense of independence and Mr Klewer's stated goal 'to be as independent as I am able in all daily living tasks', and the evidence regarding independence which has already been canvassed, that in this case, Mr Klewer's wishes are best served by developing independence. If necessary, this can be achieved by the use of a low-cost assistive technology alternative.
…
166. With respect to Mr Klewer's submissions I make the following observations. There is no independent evidence regarding the cultural considerations Ms Klewer raises. There is no objective evidence that Mr Klewer would be at risk of harm or neglect if not attended by Ms Klewer overnight - if overnight care were necessary, which I have found it is not. Ms Klewer's other submissions regarding 'exceptional circumstances' are already dealt with in the reasons above - that, should overnight monitoring be required, Mr Klewer's privacy and dignity can be preserved by the use of assistive technology. Based on the findings set out in paragraphs [136] and [137], I am not satisfied that Ms Klewer provides the best care for Mr Klewer, in terms of the impact she has upon his stress. I am also not satisfied as to the extent to which the 'strong pFersonal views' [sic] he expresses are genuinely his, particularly in view of the evidence of Dr Ashkar regarding Ms Klewer's dominance and control and the evidence of Dr Spira as to Mr Klewer's remarks to him regarding Ms Klewer. I am unable to be satisfied as to Mr Klewer's vulnerability on the basis of the evidence before me. I accept that Mr Klewer feels safe and comfortable with Ms Klewer, but as set out above, do not accept that that is consistent with Mr Klewer's goals of independence and to live a healthy and supported life, particularly in terms of his psychological health. I also observe that many of the matters raised by Ms Klewer as amounting to exceptional circumstances are issues regularly, routinely, or normally encountered with respect to the provision of supports for participants in the NDIS, and thus are not within the circumstances contemplated in the cases referred to above.
(Footnotes omitted.)
72 The Tribunal made this finding despite Mr Klewer's consistently expressed views "that he wants Mrs Klewer and no one else to be his night carer": at T[151]. This occurred in circumstances where the NDIA did not challenge Mr Klewer's credit before the Tribunal, nor did it seek to cross-examine him.
73 Mr Klewer also relies upon the fact that the Tribunal took into account a hearsay statement from 2017 (at T[56], [133] and [151]), in that Dr Spira's report to Dr Ajuyah includes a suggestion that Mr Klewer stated that "[his] mother pisses [him] off at times". However, neither Mr or Ms Klewer were asked about this during the Tribunal proceedings.
74 Mr Klewer contends that it was procedurally unfair for the Tribunal to doubt the genuineness of Mr Klewer's views, and to prefer a hearsay phrase from 2017, where Mr Klewer's evidence was not challenged and he did not give oral evidence at the Tribunal. According to Mr Klewer, the Tribunal should have told Mr Klewer that not giving oral evidence may be adverse to his case, because the Tribunal doubted the genuineness of his stated views. Mr Klewer submits that the failure of the Tribunal to alert Mr Klewer to this constituted a denial of procedural fairness: see WRMF at [66]. This failure was said to be heightened by the Tribunal telling the parties during the hearing that "there's possibly nothing to be added by way of [Mr Klewer] giving evidence", which according to Mr Klewer was relied upon by him in his election not to give evidence.
75 Mr Klewer submits that, to have observed procedural fairness, the Tribunal should either have disclosed the risk to Mr Klewer during the hearing, or failing such a disclosure, should not have made the finding that it doubted the genuineness of Mr Klewer's views. Mr Klewer was denied the possibility of a different outcome of his review application before the Tribunal: see Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 145, 147; Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [60].
76 For the following reasons, this ground is made out.
77 It was common ground as between the parties that a species of procedural unfairness includes where a decision-maker deprived a party of a fair opportunity to be heard by failing to alert the party of an issue (not considered by the parties) which it considers important: WRMF at [66]. Put differently, the subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity to deal with them, and the subject is entitled to respond to any adverse conclusion drawn on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145; 266 FCR 105 at [39], citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576 at 591.
78 It is apparent from a review of the SOFIC, the submissions of the parties and the transcript, that the Tribunal's finding at T[151] that it "[could not] be satisfied as to the extent to which this view [Mr Klewer's view that he wanted Ms Klewer and no one else to be his night time carer] is one genuinely held by Mr Klewer, rather than one imposed upon him by Ms Klewer" (emphasis added) did not arise as an issue raised by either party.
79 Mr Klewer's view regarding him wanting his mother, and no one else, to be his night time carer, was set out in Mr Klewer's statement relied upon by him before the Tribunal. The relevant portions are extracted as follows:
2. …
b) I only want my mother to look after me for as long as she can and I hope I will be lucky enough to find a partner in the near future so she can be trained by my mother to look after me when my mother can no longer look after me.
…
e) I am very fearful of even the thought of having someone watching my sleep. I will never allow for that. My anxiety levels are so bad that any additional stress results in seizures.
f) My mother does her best to reduce my stress levels. She loves me and I love her very much and she will do anything for me to keep me well. She has done this all my life.
g) The risk of harm and neglect to myself are very high if my mother was not there for me especially at night time. I am terrified about my condition and I worry a lot each time I go to bed at night as I don't know if I am going to suffer seizure [sic]. I am aware most times when these episodes occur and they are very scary. My heart rate is so fast and my jaw starts shaking then my whole body starts shaking and I try to talk and I can't. I tap my leg real hard to get mum's attention, she sleeps across the room, I feel like I am going to die.
h) My head twists one way and then I start falling toward the left and to the ground, my mother stops me from falling but at times she can't so she lets me fall on the pillows on the floor she places there. At times she injects me with medication if I have more seizures or if the seizure is too long. Such medication always stops the seizures.
3. I am entitled to have my wishes and decisions respected by NDIS after all such Scheme was created to provide me with the services I choose, to assist me to access other services which improve my life. My mother and myself and my GP and treating specialists are all on the same page and we wish to continue as we are.
4. The most important issue is my safety and peace of mind and stress reduction. I am very satisfied with the great services from my current psychologist Charles Lucas whom I have seen for 4 years. He understands me fully, just like my mother does and he listens to me.
5. I hope one day my seizures will be better controlled by better medications. I also hope that my anxiety and panic disorders are reduced so I can better enjoy my life. Dealing with NDIS and ther [sic] poor attitude and dealing with these legal issues have caused me significant stress and I truly believe that NDIS do not care about the harm they caused.
80 The NDIA's submission was, in effect, that first the Tribunal ought not be satisfied that overnight care was necessary. There was a lack of objective medical evidence that epilepsy monitoring was required as there was "no evidence of a definitive diagnosis that the seizures currently experienced by [Mr Klewer] are of an epileptic nature" and nor was there evidence from a treating doctor confirming the requirement of epileptic monitoring at all, let alone overnight. To the extent that the seizures were psychogenic non-epileptic seizures, there was no evidence from a treating doctor confirming the requirement for overnight monitoring of such seizures.
81 To the extent that overnight care was required, the NDIA submitted that there was insufficient medical evidence to establish the level of care required and, in particular, whether the care ought to be active or passive, including by use of a seizure watch (which constituted a low cost alternative support).
82 As to whether Ms Klewer should be funded to provide overnight care, the NDIA disputed that "exceptional circumstances" justified that a family member provide the care, as required under the NDIS Operational Guidelines. The NDIA acknowledged Ms Klewer's position, in its amended SOFIC, as to "exceptional circumstances" arising where, as provided in Chapter 11.1 of the Operational Guidelines:
• there is a risk of harm or neglect to the participant;
• there are religious or cultural reasons for funding a family member to provide supports; or
• the participant has strong personal views, for example in relation to their privacy or dignity.
83 Notably, the third identified exceptional circumstance refers to account being taken of whether the "participant has strong personal views, for example in relation to their privacy or dignity". Flowing from this, the NDIA noted Mr Klewer's view in its amended SOFIC:
As to his expressed wishes, the Applicant states that "I want my mother to look after me for as long as she can"; "I am very fearful of even the thought of having someone watching my sleep. I will never allow that"; 'The [sic] risk of harm and neglect to myself are [sic] very high if my mother was not there for me especially at night."
(Footnotes omitted.)
84 The NDIA made no submission, at all, ever, that Mr Klewer's view was not "genuine" and should not be accepted. Rather, for other reasons, in part identified above, it contended that the circumstances did not warrant overnight support or, if they did, they were not such that there were exceptional circumstances which warranted it being provided by Ms Klewer. The NDIA identified, as part of its amended SOFIC, that there were reasons why, despite Mr Klewer's view, the circumstances did not constitute "exceptional circumstances" where a family member would be funded to provide the requisite support:
91. In response to the Applicant's contentions as to the "exceptional circumstances" that exist in this matter, the respondent's position is as follows:
a. The Tribunal should not accept that the Applicant is at risk of neglect or harm if he is cared for by an external support worker or is especially vulnerable. There is no objective evidence to support that contention;
b. An appropriately qualified external provider can provide care that is of high quality and that will ensure the safety of the Applicant. There are available within the Coffs Harbour area in which the Applicant resides, providers of overnight support of the kind requested;
c. Concerns about privacy are common to participants in the scheme receiving personal care. The Applicant's concern may be addressed by the use of passive monitoring, utilising assistive technology;
d. There is no medical evidence that "stress" is causing the seizures. On the available medical evidence, the "triggers" for the seizures are unclear. The Applicant and his mother have reported to treating doctors that stress is a factor rather than the treating doctors opining that stress is a factor;
e. Finally, it is unclear that it is Ms Klewer's cultural background that precludes her from allowing others to care for the applicant as opposed to her personal and strongly held views that she will never allow anyone else to care for the Applicant.
92. As to the Applicant's fear of having someone watching him sleep, again this may be addressed by the use of passive monitoring, utilising assistive technology.
93. The Respondent's contention is that there are not "exceptional circumstances" in this case to warrant the funding of the Applicant's mother to provide overnight care to the Applicant.
85 The NDIA did submit as well, noting Mr Klewer's view that reliance should also be placed on his stated goal of "independence", the following:
The Tribunal should find there are not "exceptional circumstances" warranting a determination that Ms Klewer, a family member, be funded to provide overnight care to the Applicant, given the Applicant's failure to demonstrate that "exceptional circumstances" exist; the goals stated in the Applicant's plan; and the psychologists evidence as to the nature of the relationship between the applicant and his mother and the need for the Applicant to develop independence.
86 The NDIA, in a similar vein, when addressing the s 34 criteria in relation to s 34(1)(a) (whether the support would assist the participant to pursue their stated goals and aspirations), submitted that overnight support (if required) should be provided by an external provider rather than Ms Klewer "given the objectives of the Applicant's plan and Dr Ashkar's evidence as to the detriment flowing from Ms Klewer's dominance and control of the Applicant's care needs".
87 To the extent that the NDIA relied upon Dr Ashkar's opinion, and particularly paragraph [28] of his report, it was as referred to in the amended SOFIC in the following way:
The Tribunal cannot be satisfied that funding the Applicant's mother to provide overnight care would be beneficial for the Applicant. Funding the Applicant's mother to provide overnight care would further reinforce a degree of control that presents a risk to the Applicant. As noted above, Dr Ashkar opines that the applicant's mother's "dominance and control (I do not use these words lightly) of his care needs (no matter how well intentioned she may be) limits his sense of self efficacy (and ultimately his dignity by compromising his independence) and this will have serious implications for his psychological health into the future if not addressed today"
(Emphasis in original, footnotes omitted.)
88 Indeed, the NDIA's submission before the Tribunal remained consistent, in opening, when counsel for the NDIA submitted that Mr Klewer's evidence (which would include not only his evidence but of course all evidence upon which he relied) "at its highest" would not satisfy the Tribunal that the support was justified. There was no challenge by the NDIA of Ms Klewer, under cross-examination, as to whether she had imposed her views on Mr Klewer. Dr Ashkar gave evidence, under cross-examination, to the effect that he agreed with what Mr Lucas (Mr Klewer's treating psychologist) had stated regarding Mr Klewer's feelings of comfort and safety under his mother's care:
In relation to (indistinct)?---No, in relation to the Charles Lucas opinion regarding that your son feels - referring to the information in that Charles Lucas report where he says that your son, [Mr Klewer], feels comfortable and safe in your care throughout the night, and I agreed that that would be the case, and it's natural and it's understandable. That's what I was agreeing to.
89 During Dr Ashkar's cross-examination the Tribunal clarified, for Ms Klewer's benefit, that the purpose for which Dr Ashkar's report went to was "whether the support that [Mr Klewer] is seeking will be or is likely to be effective and beneficial… having regard to current good practice, which is contained in section 34(1)(d) of the NDIS legislation".
90 Thereafter, Dr Ashkar was questioned regarding the conclusions in his report, and maintained that his reference at [24] to the "uncertainty surrounding the origin and the cause of the reported seizures" was because he had been asked to identify Mr Klewer's support needs and it was his view that further information was necessary.
91 Dr Ashkar maintained this view and did not extrapolate beyond that which was contained in his report, as extracted at [19] above. There was no extrapolation to the view of the Tribunal that Mr Klewer's view had been "imposed upon him by Ms Klewer".
92 The parties each took me to relevant parts of the transcript of the hearing regarding the issue of Mr Klewer's evidence. The extracts relied upon revealed that the Deputy President impressed upon Ms Klewer, participating as Mr Klewer's nominee at the hearing, at the commencement of the hearing, that "greater weight" would be placed on the evidence given by Mr Klewer "himself as to his preferences" than information provided through Ms Klewer or someone else.
93 At the commencement of the second day of the hearing, counsel for the NDIA indicated that he did not require Mr Klewer for cross-examination. The Deputy President indicated that it was a matter for Mr Klewer as to whether he wished to give evidence.
94 Part of Ms Klewer's exchange with the Tribunal is extracted as follows:
MS KLEWER: Deputy President - yes, I only kind of entertained him giving evidence again because Deputy President had said it would help his case, and then you went on to also say what Lucas thinks about him giving the evidence, and then I provided you that email today which said that if it's non-combative and non-adversarial, [Mr Klewer] can give evidence. So, because of that things changed, and prior to today - you know, prior to (indistinct) it was a situation whereby he was not in a position to give evidence, mainly because you know all of the drama against attacks on me and (indistinct) witnessed, you know, through different representatives and, you know, other tribunal member and the tactic there to go to the Federal Court after that. So that was very daunting.
DEPUTY PRESIDENT: Okay, well look the bottom line is that obviously it's much better if an applicant gives evidence himself. And that is absolutely reasonable. But what Mr Liu is saying - and this is correct - is that whilst that canvassed I think in sort of May of this year when we were considering coming to - trying to have the matter heard in person in Coffs Harbour - that was certainly contemplated in directions and discussed in a directions hearing at that time. And you made it abundantly clear that [Mr Klewer] wouldn't be giving evidence under any circumstances. What I did at the beginning of the hearing is put you on notice that it's [Mr Klewer's] matter and it would be much better if he were to give evidence, and that remains just an insurmountable, sort of, truth.
But what Mr Liu is saying, which his [sic] quite reasonable, is that if [Mr Klewer] is to give evidence, he needs some time to prepare for that. And he hasn't done so because up until - - -
MS KLEWER: Sorry?
DEPUTY PRESIDENT: What Mr Liu is saying is if [Mr Klewer] is to give evidence, he needs some time to prepare the questions he would wish to ask [Mr Klewer].
95 Counsel for the NDIA then submitted:
MR LIU: Can I also make this submission, which might sort of help to cut through things a little bit - which is I accept the force of what the tribunal has said about it's better for applicants generally to be giving evidence of their own lived experience certainly, but there are perhaps two short matters I'd introduce in this context to explain why, from the respondent's point of view, Mr Klewer is ultimately not required for cross-examination on the current state of things. And they are these - the first is I won't ask the tribunal to draw any sort of adverse inference from Mr Klewer not giving evidence, or certainly electing not to give evidence. And the second thing is the relevant circumstance in this case is that Mrs Klewer is her son's plan nominee. So to the extent that she's been appointed plan nominee, section 78 of the Act does give her some rights to speak on his behalf. And the respondent - to the extent required by the Act - accepts how those presumptions work.
96 Thereafter the exchange continued:
DEPUTY PRESIDENT: Right, well Ms Klewer you've heard that. As I said, I'm not going to tell you how to run your case. It's therefore a matter - or [Mr Klewer] how to run his case - it's therefore a matter for [Mr Klewer] and you to the extent that you're his nominee, to decide whether you would like him to give evidence or not. And if you would, I would be inclined to give Mr Liu the balance of today to prepare for that, so he needs to be put on notice as to whether that's what he's doing or not. And then we would hear from [Mr Klewer] after we've heard from Mr Lucas tomorrow morning, I'm guessing?
MS KLEWER: Yes, well my response to that is that in the event [Mr Klewer] does not give evidence, then his statement on the record would go in unchallenged. And second to that, if he were to give evidence, it has to be in line with the advice of Mr Lucas. That it is non-adversarial and non-combative. And then I would add to that that it would have to be limited to how he feels about his condition at night in relation to the effect on him and the fear he suffers when these episodes occur, and the care that he receives makes him feel secure and he would not want any changes to that. So, if he gives evidence, it will be along those lines, because that's what's relevant anyway.
DEPUTY PRESIDENT: Okay, well Ms Klewer, I'm not going to allow you to put limitations on the questions. I would manage that on a question by question basis. I've explained what the situation is. You now have - I will now stand it down for a little bit longer, because you and [Mr Klewer] need to decide unequivocally whether [Mr Klewer] is going to give evidence or not so that Mr Liu has some knowledge of that so he can work out how to spend his time today. Because if [Mr Klewer] is going to give evidence, Mr Liu needs to be in a question to cross-examine him. Is that your position as I understand it, Mr Liu?
MR LIU: Yes, Deputy President. I can say that if he doesn't give evidence his statement that is in the bundle will technically speaking go in unchallenged because he won't be cross-examined. And I'm fine with that position. But the second component of what Ms Klewer said is unfortunately not something the respondent can sign up to as a general proposition as to how cross-examination might be limited in the very precise ways that she's contended for.
DEPUTY PRESIDENT: Well I think I've indicated to Ms Klewer that I couldn't possibly - the tribunal couldn't possibly say that that's what would happen either.
97 After a further exchange, where the NDIA raised a concern about Ms Klewer being in the same room as Mr Klewer, the Deputy President stated:
DEPUTY PRESIDENT: Yes. I'm not really convinced what is going to be added by [Mr Klewer] giving evidence himself if Mr Liu is not going to cross-examine him - is not requiring him for Cross examination - and you're saying at the moment that his statement - well not saying at the moment, is saying that in the absence of [Mr Klewer] himself giving evidence, his statement in effect won't be challenged - and that you won't be asking me to draw any adverse inference. Is that clear?
MR LIU: That's so.
DEPUTY PRESIDENT: So I think on that basis, Ms Klewer, given the tension between the general principle of the desirability of a witness giving evidence separately from other witnesses who might give evidence, and the difficulties that [Mr Klewer] would have in doing that without you present - in light of Mr Liu's client's position in relation to [Mr Klewer's] existing evidence by way of statement, there's possibly nothing to be added by way of giving evidence.
(Emphasis added.)
98 Mr Klewer did not give evidence. Mr Klewer was not informed by the Tribunal that an issue in the proceeding was that the genuineness of his views should not be accepted because his mother had imposed that view regarding night time care upon him.
99 It is clear that none of the medical evidence was to this effect. Rather to the contrary, reliance was placed on (to which the NDIA acceded) the consistent evidence of Mr Lucas, in multiple reports over time, culminating in his "summary" report, dated 22 May 2021, in which he repeated what he had stated previously regarding Mr Klewer's views which included the following:
I noted in a report of 2nd July 2018 in regard to [Mr Klewer's] application to the NDIS that, "in relation to the NDIS application concerning your son, [Mr Klewer], and just to relate that it is clear that under the scheme optimal care for [Mr Klewer], especially during the night period and during his sleep time, when he is more susceptible to seizures and when he may require intervention with Midazolam, is best provided by yourself, rather than any other service provider. The reasons for this include the case that [Mr Klewer] has naturally developed a long time reliance, trust and faith in your capacity to care for him throughout his life and you, in turn, obviously, as a parent and the sole and primary carer throughout [Mr Klewer's] life, have developed a unique and specific skill set and the degree of intuition as a mother, to be able to anticipate [Mr Klewer's] needs and generally provide the level of monitoring in respect of his disability to an optimum standard. Furthermore, and as we discussed during our session recently, [Mr Klewer] has strong concerns in regard to the compromises he will have to make in terms of his privacy and dignity if he has a carer other than yourself at night, and understandably, he is anxious that any other carer may not provide him with the same level of care that you yourself can, as a result of not only the years of experience you have in the care of [Mr Klewer], but the intuition that only a mother has in terms of the physical and emotional needs and requirements of their children. As you are aware, [Mr Klewer] suffers from generalised anxiety disorder with some traumatic features, and it is the case that anxiety is associated with increased frequency of seizures and much greater challenges in the overall management of his condition, and again, it could be [sic] certainly be the case that any change in the provision of [Mr Klewer's] care could be, in fact, detrimental to him and that it would be preferable, in view of this, that all service provision should continue to be provided by yourself, as has been the case for the duration of [Mr Klewer's] life."
100 When responding to Dr Ashkar's report and the "dependent relationship [Mr Klewer] has with his mother and the need for him to develop a greater autonomy in all areas of his life", Mr Lucas stated:
Associated with this, is the fact that [Mr Klewer] has indeed developed a strong dependency upon his mother over the years as a consequence of the health and related challenges he has faced, and it is also the case that his mother, Lucy, reciprocates this dependency by her strong and dominant parenting style and her concerns about [Mr Klewer's] safety and well being [sic] in the world. Indeed, some of Lucy's expressed concerns, as I have discussed with her including, for example, her fear that he could be swept away by the ocean by walking near it with the dog, or be assaulted by people on the walking track, does tend to provide reinforcement for [Mr Klewer's] generalised anxiety disorder and his hypervigilance.
I have also discussed with Lucy the case that her ongoing struggles with the police and other authorities over various matters and her regular debriefing of these struggles with [Mr Klewer], does tend to add to his fears about the world and to his anxiety levels, and certainty, [Mr Klewer's] own experiences with the police have eroded his trust to the extent that his mother and his extended family including, his sisters, are the primary people he trusts in the world. We have discussed that it is, of course, desirable for [Mr Klewer] to develop greater independencies in general outside of his mother and extended family, but it is also the case that the reality is that he enjoys and derives tremendous benefit in regard to self confidence and skill development from the partnership he has with his mother in the nursery, and he looks forward to the local markets where he interacts with others, disseminating some knowledge about the plants he has grown, handling the sale, and also having the opportunity to maintain and initiate relationships with his fellow marketeers.
…
So, while of course it is desirable for [Mr Klewer] to have the opportunity to develop greater independence the actual reality is that the opportunities for this are very restricted, or non-existent, given his circumstances, as I have described. On the positive side, he does report a good and productive, working partnership with his mother in the nursery, and this small business has provided [Mr Klewer] with opportunities for the development of his self confidence and for the establishment of a community identity and networks amongst his fellow marketeers in the local area, as well as the development of a skill set which is fully compatible with the nature and degree of his impairments. It is the reality, as well, that his mother supports and supervises him in this partnership and that she, in turn, may not be viable in the small business without [Mr Klewer's] support.
As noted earlier, social opportunities for [Mr Klewer] outside of his family are extremely limited in Coffs Harbour, not unlike many other regional centres, and most, if not all of these opportunities, with respect to [Mr Klewer's] age group, are connected with the local churches where he could potentially, at least, have companionship and social involvements. Perhaps, NDIS could explore opportunities like this and related possibilities, especially in view of the case that there are, anecdotally, at least, other NDIS clients that would benefit from similar support services.
So, in consideration of the entire life circumstances which gave rise to the conditions underlying the development of the strong co-dependencies between [Mr Klewer] and his mother, it is a pragmatic fact that [Mr Klewer] has naturally developed a long time reliance, trust and faith in his mother's capacity to care for him and she, in turn, has developed a highly specific skill set and intuition as a parent to anticipate [Mr Klewer's] needs and generally provide the level of monitoring in respect of his disabilities to an optimum standard reducing the anxiety he might otherwise feel. Added to this, and as we have discussed, [Mr Klewer] understandably has strong concerns in regard to the compromises he will have to make in terms of his privacy and dignity if his nightly care and monitoring is outsourced at this stage."
As we discussed during the telephone call of the 04/05/2021 in relation to the actual nature of the seizures themselves, it appears to be the case, that irrespective of the definitive diagnosis whether pseudo seizures, or otherwise, (Neurologist, Dr Balaji Kalband suggested that [Mr Klewer] is suffering "focal dyscognitive seizures with secondary generalisation") the actual behavioural outcome as reported by you is such that his condition can, at times, require administration of Midazolan [sic] to settle him and on frequent occasions, it is required that [Mr Klewer] is transported to hospital by the paramedics and subsequently, admitted for review. You have also noted your concern that [Mr Klewer] could injure himself during one of these episodes. There is no doubt that your role and responsibility as a mother changes dramatically, during and immediately following a seizure episode, into that of a carer, and it is important, of course, that this duel role is both recognised and understood.
101 By further report dated 26 May 2021, Mr Lucas reiterated Mr Klewer's wishes again when asked about "[Mr Klewer's] attitude concerning the scenario that he would have to engage in a carer relationship under the NDIS with a person other than his mother". He stated that he could "confirm [Mr Klewer's] opposition to this based upon compromises with regard to privacy and dignity and referred to previous notes", concluding:
Indeed, [Mr Klewer] has been totally consistent over time in his absolute preference that his mother remains as his night carer and certainly, this preference is based upon the high degree of trust he has in his mother, as well as issues relating to privacy and dignity, as we have discussed. Further, in my letter to you and Mandy Tomkins of A Break Disability Services on the 02/07/2018, I noted that, "Furthermore, and as we discussed during our session recently, [Mr Klewer] has strong concerns in regard to the compromises he will have to make in terms of his privacy and dignity if he has a carer other yourself [sic] at night, and understandably, he is anxious that any other carer may not provide him with the same level of care that you yourself can as a result of not only the years of experience you have in the care of [Mr Klewer], but the intuition that only a mother has in terms of the physical and emotional needs and requirements of their children."
(Emphasis in original.)
102 Under examination, Mr Lucas maintained the same regarding Mr Klewer's views, which he described as being "very strong":
I mean you could see that he just simply didn't want anyone else in the house. And that his faith and trust was with you as the mother there. So, that's really the whole context of what I've put forward there.
103 Notably, under cross-examination, Dr Ashkar did not dispute Mr Lucas's description of his opinion regarding what Mr Klewer felt and stated:
In relation to (indistinct)?---No, in relation to the Charles Lucas opinion regarding that your son feels - referring to the information in that Charles Lucas report where he says that your son, [Mr Klewer], feels comfortable and safe in your care throughout the night, and I agreed that that would be the case, and it's natural and it's understandable. That's what I was agreeing to.
104 Consistent with the evidence, the submissions in opening and the issue regarding whether Mr Klewer would give evidence, the NDIA did not, in its closing submissions, contest Mr Klewer's evidence but rather submitted that:
…the applicant himself, his treating psychologist and Mr Klewer's mother have all given consistent evidence that the applicant has a strong preference to have the requested support provide by his mother, as is currently happening.
105 Rather, in response, the NDIA submitted, inter alia, with reliance upon paragraph [28] of Dr Ashkar's report, "that [Mr Klewer's] mother's control of his care needs limits his sense of self-efficacy, potentially compromises his independence, and will have serious implications for his psychological health. That's the core of Dr Ashkar's opinion…". As a consequence, it was submitted that "Dr Ashkar's evidence, and some of the other psychological evidence, which does not seem to suggest that having this type of support [overnight care by his mother] will enhance [Mr Klewer's] independence in any way".
106 As stated by Mortimer J (as her Honour then was) in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [37], where an obligation to afford procedural fairness is expressly or impliedly imposed, the general question is whether the person has been denied an opportunity to be heard on a matter which she or he ought fairly to have been given in the totality of the circumstances, citing WZARH at [42] (quoting SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [25]). ARK16 emphasised that the question is directed to the decision-maker's (here the Tribunal's) processes not the correctness of the Tribunal's conclusions. As referred to above, the Full Court's well known passage in Alphaone at 591-592 states that the decision-maker is required to advise of any adverse conclusion which has been "arrived at which would not obviously be open on the known material".
107 I am of the view, for the reasons identified above, that the "known material" included nothing at all to the effect that Mr Klewer's view had been "imposed upon him by" his mother. There was no challenge at all to his evidence. There was no challenge to his mother's evidence, nor was it put to her that she had, by her conduct, "imposed" her view as to his night time care being only provided by her upon him. There was no evidence from any expert as to this being the effect of Ms Klewer's "dominance and control" of his care needs. Rather, to the contrary, as set out above, both Mr Lucas and Dr Ashkar maintained, despite them both to varying degrees identifying this "dominance and control", that Mr Klewer "strong[ly]" held this view for rational reasons associated with privacy and dignity. This is what makes the Tribunal's finding unexpected, as well as one affected by jurisdictional error: ARK16 at [41].
108 I reject the NDIA's contention that I should not accept Mr Klewer's arguments with respect to this ground of appeal on the basis that the impugned findings turn on issues about which Mr Klewer was alerted to, and which he could have answered (or did answer). The fact of the Tribunal's reference to one line in Dr Spira's (Mr Klewer's neurologist) report (at T[151]) regarding Mr Klewer sometimes being agitated by his mother, provides no answer. There was nothing in Dr Spira's report that went to the issue of the purported unreliability of Mr Klewer's views by reason of his mother's influence on him. Further, I do not accept the NDIA's submission that the Tribunal's finding at T[151] was responsive to Ms Klewer's submission that Mr Klewer consistently expressed the view that he wants his mother, and no one else, to be his night-time carer and arose where the Tribunal noted that the evidence of Dr Spira and Dr Ashkar did not support Mr Klewer's submission concerning his "consistently expressed … view". For the reasons outlined above, I do not accept that this "issue" was discernible as being one, whether from the evidence of Dr Spira nor Dr Ashkar or otherwise.
109 Further, the NDIA submits that a fair reading of the Tribunal's reasons does not support Mr Klewer's submission that the Tribunal doubted the "genuineness" of his views so as to engage an obligation to cross-examine him on that issue. The Tribunal's finding at T[166], according to the NDIA, was that it was "not satisfied as to the extent to which the 'strong personal views' [Mr Klewer] expresses are genuinely his" (emphasis in original). The NDIA submitted that there was no impugning of Mr Klewer's credit but rather a consideration of the likely reliability of his evidence. The NDIA submits that, in making this finding, the Tribunal was simply evaluating and weighing the evidence before it on a relevant issue, namely Mr Klewer's independence and the role of his mother. Mr Klewer was alerted of this issue, and Ms Klewer cross-examined Dr Ashkar about it. I do not accept this contention for the same reasons. The issue was whether Mr Klewer's evidence about his own wishes regarding night care should be accepted. The Tribunal raised as an issue, for the first time in its reasoning, not being satisfied that Mr Klewer's wishes were genuinely held by him rather than being imposed upon him by his mother. It is my view that this was something, whether described as arising from a credit finding or as a question of reliability, that was an issue about which Mr Klewer needed to be made aware. The "known material" included nothing about Mr Klewer's views being imposed upon him by his mother. Familial dynamics and their effect on free will are varied and complex.
110 I note that the NDIA correctly conceded that Dr Ashkar's evidence did not deal with this issue directly, but stated that there was a logical basis for the finding based on Dr Ashkar's evidence because the "issues of dominance and control and the lack of self-efficacy are such that that provided a basis for the tribunal not to reject Mr Klewer's evidence, but simply to say that it's not satisfied that that evidence should be accepted".
111 As such, the NDIA submits that the Tribunal's assessment of the evidence in relation to Mr Klewer's submission is neither a denial of procedural fairness, nor a failure to perform its statutory task.
112 I must also be satisfied that, by reason of this error, Mr Klewer was denied the possibility of a different outcome: see e.g., WZARH at [60] (per Gageler and Gordon JJ); see also Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398 at [30]-[31] (per Kiefel CJ, Keane and Gleeson JJ). As observed recently by the High Court in Nathanson, the determination of the materiality of a breach requires consideration of the factual question of how the decision was in fact made, which is determined by proof of historical facts on the balance of probabilities (per Kiefel CJ, Keane and Gleeson JJ at [30]-[31], per Gageler J [55]-[58]). It is necessary to consider whether the decision that was made could have been different had the relevant condition been complied with as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined" (Nathanson at [32] (per Kiefel CJ, Keane and Gleeson JJ) quoting MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [38]), for which the plurality in Nathanson stated the burden falls on the applicant/plaintiff. The plurality observed that there will generally be a realistic possibility of a different outcome where a party was denied an opportunity to present evidence or make submissions on an issue that required consideration: Nathanson at [33] (per Kiefel CJ, Keane and Gleeson JJ).
113 Here, I accept the submission of Mr Klewer that the Tribunal relied upon the fact of the absence of a genuine view held by Mr Klewer that he be cared for at night by Ms Klewer and only Ms Klewer with respect to its finding as to whether the overnight support was "effective and beneficial" under s 34(1)(d): at T[151]. To the extent that it is necessary for me to decide, I am of the view that the absence of this view constituted a material finding in the Tribunal's conclusion that the support was not "effective and beneficial". The Tribunal commenced its reasons in this regard by referring to Ms Klewer's two-fold submission, the second component of which was that "Mr Klewer's wish that he be cared for at night by her and only by her": at T[146]. The Tribunal relied upon the absence of a view expressed by Mr Klewer to fortify its conclusion (at T[154]) that the support was not "effective and beneficial" in finding that "Mr Klewer's wishes are best served by developing independence": at T[151]. Further, it was relied upon by the Tribunal if the second issue had arisen, namely if it had been "reasonable and necessary" to provide the support, whether exceptional circumstances arise such that the support should be provided by Ms Klewer: at T[166].
114 I am of the view that, in circumstances where the Tribunal formed this view about a fact, it was obliged to raise it with Mr Klewer and give him an opportunity to make submissions about it and, potentially, to give evidence about it if he so elected, including from himself, Ms Klewer and any relevant expert, as this evidence may have resulted in a different outcome.