mixed. The Tribunal set aside the reviewable decision dated 29 March 2018 and substituted a determination that Ms McLaughlin was entitled under s 33(2) to the supports in her 27 June 2017 statement of...
Key principles
For the purposes of rule 5.1(b) of the Supports Rules, the relevant disability is not confined to the impairment or impairments that formed the basis of the participant's...
The Tribunal concluded that s 33(2) gives the decision-maker a residual discretion to refuse a support even where the criteria in s 34(1) are met. In exercising that discretion,...
Ordinary motor-vehicle running costs are generally day-to-day living costs, but additional costs incurred solely and directly because a vehicle is disability-modified may fall...
A one-off exercise physiologist consultation to prepare the participant for tai chi classes was a disability-related additional cost and satisfied the applicable criteria on the...
Issues before the court
Whether supports must relate to the impairments that qualified the participant for NDIS access.
Whether s 33(2) contains a residual discretion after the s 34 criteria are met.
Plain English Summary
The Tribunal partly accepted Ms McLaughlin's challenge to the Agency's refusal of supports in her 2017 NDIS plan. It said that supports do not have to relate only to the impairments that originally qualified a person for NDIS access. It also considered that meeting the listed s 34 criteria does not automatically require funding, because s 33(2) retains a broader assessment of whether a support is reasonable and necessary. On the facts, additional costs caused by operating a disability-modified vehicle and a one-off exercise physiologist consultation to prepare for tai chi could qualify. Ordinary tai chi fees, singing lessons, brain exercises, paid community events, and insurance for assistive technology were not approved. The Tribunal's decision was limited to the 2017 plan, and it remitted the allowed claims to the Agency for consideration.
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Whether transport costs for operating a modified private vehicle could be funded.
Whether tai chi-related costs were reasonable and necessary.
Cited legislation
4 cited instruments linked from this judgment.
Deep Dive
2,276 words · generated 30/09/2026
What happened
Alexa McLaughlin was a 70-year-old Canberra resident and an NDIS participant from January 2015. Her access had been granted on the basis of osteoarthritis affecting her mobility, obesity, chronic fatigue syndrome and irritable bowel syndrome. The judgment records that other conditions and impairments she had raised, including cognitive impairment and depression, were not accepted as the basis for access at that time.
The dispute concerned her 2017 plan, for the period 26 June 2017 to 26 June 2018. After an internal review affirmed the refusal of supports, she applied to the Tribunal for merits review. The original application concerned fourteen supports. Eight were resolved by agreement during the proceedings, leaving six disputed items: transport contribution, tai chi, singing lessons, brain exercises, community activities, and insurance for assistive technology.
The Tribunal confined its review to the 2017 plan. It said it could not make orders about other years without reviewable decisions for those periods. Its final orders were partial. Ms McLaughlin was found entitled, in respect of the 2017 plan, to the supports already included in her plan, additional costs solely and directly related to operating a disability-modified vehicle above the cost of a standard vehicle, and a consultation with an exercise physiologist to prepare her for tai chi. The Tribunal remitted consideration of claims for those supports to the Agency. The other four support categories were refused.
That result should be read with the limits stated in the reasons. The transport finding concerned additional costs, not the ordinary cost of running a car or the cost of buying a modified vehicle. The Tribunal did not quantify those costs, and the evidence did not establish clearly what vehicle Ms McLaughlin operated during the plan period or what extra costs she incurred. The tai chi outcome covered a preparation consultation, not the class fees.
Why the court decided this way
The Tribunal first resolved two statutory interpretation questions that shaped its assessment of every support.
First, it held that a support did not have to relate only to the impairment that had formed the basis of the original access decision. The Agency accepted that the word “disability” in rule 5.1(b) was broader than the particular impairments that had satisfied s 24. The Tribunal agreed, relying on the structure of the Act: access is a threshold decision, whereas a participant’s plan is an individualised and revisable arrangement. It reasoned that participants may experience changing impairments during a lifetime of participation. In the Tribunal’s view, it would be impractical to restrict later supports to conditions identified at entry. It therefore construed “the participant’s disability” in rule 5.1(b) as including a disability with which the participant presently lives.
Second, the Tribunal decided that s 33(2) contained a residual discretion. It reasoned that s 34(1) sets requirements that must be met before a support can be specified, but does not state that every support meeting them must be funded. The phrase “reasonable and necessary supports (if any)” in s 33(2)(b) was treated as having independent work to do. The Tribunal also considered that treating s 34 as an exhaustive definition could make aspects of the Supports Rules invalid by allowing those Rules to narrow criteria supposedly fixed entirely by the Act. Its construction preserved the role of the Rules in the assessment. This was the Tribunal’s own conclusion; it noted that the Full Federal Court in WRMF had raised, but not decided, the residual-discretion question.
The transport claim illustrates how those principles operated together. The Tribunal rejected the proposition that ordinary vehicle running costs were disability-related simply because Ms McLaughlin needed private transport. It considered it likely she would have a car even without disability and treated ordinary running costs as day-to-day living costs. However, a larger or modified vehicle could generate additional costs, such as extra fuel or registration expenses. Those were capable of being additional living costs incurred solely and directly as a result of disability support needs under rule 5.2(a). As the amount and evidence were unresolved, the Agency was to consider any claim on remittal.
The “no disadvantage” argument did not independently establish a right to the requested transport allowance. The Tribunal accepted evidence that ending the allowance had contributed to Ms McLaughlin taking her car off the road, and that this likely reduced her social and economic participation. But it treated the statutory criteria as controlling. The policy principle could not dispense with those criteria.
For tai chi, the Tribunal considered the evidence in light of the relatively modest, one-off cost of an exercise physiologist consultation. It accepted the GP’s evidence that Ms McLaughlin needed a suitable programme and that tai chi could be appropriate given her limitations. It also treated her own experience of trying tai chi as relevant evidence. It rejected the class fees as an ordinary exercise expense that she would likely incur in some form regardless of disability. It also found insufficient evidence that she needed a modified class rather than a generic class after receiving appropriate preparation.
The remaining claims failed for distinct reasons. Singing lessons could assist Ms McLaughlin’s social participation, but the connection between her disability support needs and the lessons was too indirect to qualify under rule 5.2(a). Brain exercises were not shown to be likely to benefit her identified impairments, and the evidence about cheaper alternatives did not establish value for money. Paid festivals and events related to her goals of meeting people, but the Tribunal identified a range of free or low-cost activities in Canberra and found the value-for-money case inadequate. Assistive-technology insurance might help in a future contingency, but the evidence did not show that it was cost-effective for the Agency.
Before and after state of the law
The decision addressed two questions the Tribunal described as not finally determined in the relevant prior authorities. The first was whether the rule against funding supports not related to a participant’s disability tied the meaning of disability to the impairments accepted at access. The Tribunal’s answer was no. It distinguished the access decision from the later assessment of supports and adopted a wider, present-focused meaning of disability for rule 5.1(b).
The second was whether s 34’s criteria exhaust the meaning of “reasonable and necessary” in s 33(2). The Tribunal concluded that they do not, and that s 33(2) includes a residual discretion. It drew on statutory text, structure and purpose, and considered how the Supports Rules fit into the statutory scheme.
These are the Tribunal’s reasons in an AAT merits-review decision. The judgment does not state that it is binding on other decision-makers or courts. Its reasoning is therefore best understood as an influential explanation of the statutory scheme in this particular decision, not as a final appellate determination. The judgment itself records that the Full Federal Court in WRMF had identified the residual-discretion argument but left it for a properly raised case.
The practical account of transport costs is also carefully limited. The decision did not establish that ordinary vehicle costs are generally payable. It recognised only the possibility of funding additional costs above those of operating a standard vehicle, where they were solely and directly linked to the disability modification and otherwise met the statutory requirements. The Tribunal expressly excluded the higher purchase cost of a modified vehicle from the transport costs it identified.
Key passages with plain-English translation
The Tribunal said the disability in rule 5.1(b) was “not a reference to a disability by virtue of which Ms McLaughlin was granted access to the scheme in 2015, but rather to any disability with which she presently lives.” In plain English, it considered that later support claims can relate to disabilities not relied on when the person first entered the NDIS. This did not mean that any claimed cost was automatically fundable: the other statutory and Rules-based tests still applied.
On the interaction between ss 33 and 34, it held there was “a residual discretion in s 33(2)” to decide that a support meeting s 34(1) was still not reasonable and necessary. In plain English, satisfying the listed criteria was necessary but, in the Tribunal’s view, not always enough. The decision-maker still had to assess the support under the broader statutory framework, including the Supports Rules.
For social participation, the Tribunal said the pathway from funding to participation “need not be immediate and direct”; the support need only “assist the process.” This supported its view that singing lessons could, in principle, help Ms McLaughlin pursue a social goal. But that reasoning did not resolve the separate rule 5.2(a) issue: the Tribunal found the link between her support needs and the cost of those lessons was not direct enough.
On innovation, the Tribunal stated it had “no power to fund a support” simply as a trial of an innovative support. In plain English, the Act’s support for innovation did not replace the requirement that a support be likely to be effective and beneficial. The brain-exercise proposal failed because the evidence, including Ms McLaughlin’s description of the claim as a “working hypothesis”, did not reach that threshold.
What fact patterns trigger this precedent
The decision is most relevant where a participant seeks a support connected to a disability that was not identified as the basis of the original access decision. It supports the proposition that the original access decision does not necessarily confine the disabilities relevant to later plan decisions. The support must still be connected to the participant’s present disability and meet the applicable funding tests.
It is also relevant to claims for additional costs embedded in ordinary expenses. A person may have expenses, such as vehicle operating costs or recreation fees, that are commonly incurred by people without disability. The judgment distinguishes the ordinary cost from an extra cost incurred solely and directly because of disability support needs. The vehicle example was a modified or larger vehicle with additional fuel or registration costs. Evidence identifying and quantifying the additional amount was important because the Tribunal did not determine quantum itself.
The tai chi reasoning may be relevant where a participant seeks a modest preparatory service that enables safe or suitable participation in a broader activity. The Tribunal relied on the GP’s evidence and the participant’s lived experience, while separating the preparatory consultation from ordinary class costs.
The decision also identifies evidentiary issues in claims for services said to be effective, beneficial or value for money. General evidence that an activity may benefit people is not necessarily evidence that it is likely to benefit the particular participant. For value for money, the Tribunal looked at alternatives, comparable costs, the local availability of activities, and the evidence explaining why alternatives were unsuitable. Its evaluation of free activities was tied to the record and the Canberra community considered in that case.
How later courts have treated it
The supplied judgment contains no later judicial treatment of McLaughlin. It was decided on 12 March 2021, and the material provided does not identify subsequent cases applying, distinguishing, affirming or reversing it. No later-treatment conclusion can therefore be drawn from this source alone.
The judgment does discuss earlier authorities. It refers to WRMF for the statutory scheme’s values and the highly individualised nature of support decisions. It notes that WRMF had identified the residual-discretion issue without deciding it. It also relies on Mulligan for the distinction between access to the NDIS and the separate decision about supports. In the transport discussion, it expressly preferred the Agency’s interpretation of rules 7.21 and 7.22 over the approach it attributed to Ewin, stating that Ewin was wrong to the extent it suggested a support outside rule 7.21 could still be funded merely because it was not excluded by rule 7.22. It distinguished Blattman on the evidence of disadvantage and King because responsibility for the gym membership had been accepted there, leaving only quantification in issue.
These references show the Tribunal’s reasoning and treatment of prior authorities, not later courts’ treatment of McLaughlin itself.
Still-open questions
The judgment leaves the residual-discretion question open at the appellate level. The Tribunal adopted a construction of s 33(2), but the judgment does not report a later appellate ruling on that construction. It also does not settle how the residual discretion should be exercised across different categories of support, beyond the examples considered.
The transport order left factual and quantification questions to the Agency. The supplied reasons do not determine whether Ms McLaughlin incurred additional registration, insurance, maintenance or fuel costs during the plan period, how much those costs were, or what evidence would be sufficient in a particular claim. The Tribunal noted that her vehicle may have been off the road for much of the plan period and that she might not be able to produce evidence of extra costs.
The decision also does not establish a general evidentiary threshold for innovative or emerging supports. It explains why the evidence for this brain-exercise subscription was insufficient, and why evidence for a low-cost exercise physiologist consultation was sufficient in the circumstances. It does not provide a universal formula for balancing participant experience, clinical evidence and published research.
Finally, the discussion of free community alternatives was specific to the activities and opportunities the Tribunal identified in Canberra. The judgment itself acknowledged that some alternatives had not been put to Ms McLaughlin at the hearing. Its conclusion on value for money should therefore be read as fact-specific rather than as a general rule that free activities always defeat funding for paid community participation.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Judgment (216 paragraphs)
[1]
McLaughlin and National Disability Insurance Agency [2021] AATA 496 (12 March 2021)
[2]
McLaughlin and National Disability Insurance Agency [2021] AATA 496 (12 March 2021)
[3]
Division: NATIONAL DISABILITY INSURANCE SCHEME DIVISION
[4]
The Tribunal sets aside the reviewable decision dated 29 March 2018 and in substitution determines that Ms McLaughlin is entitled, pursuant to s 33(2) of the National Disability Insurance Scheme Act 2013, to the following reasonable and necessary supports in respect of her 2017 plan:
[5]
those supports included in the statement of participant supports dated 27 June 2017;
costs solely and directly related to the operation of a disability-modified motor vehicle, above and beyond the costs incurred in operating a standard motor vehicle, including those additional costs, if any, relating to registration, insurance, maintenance and fuel; and
a consultation with an exercise physiologist, for the purposes of preparing her for participation in tai chi classes.
[6]
The Tribunal remits to the Agency consideration of any claim made by Ms McLaughlin in respect of those supports to which the Tribunal has found she is entitled.
NATIONAL DISABILITY INSURANCE SCHEME - reasonable and necessary supports - jurisdiction of Tribunal in NDIS matters considered - whether supports can be approved in relation to a disability other than the disability on which the participant's access to the Scheme was granted - whether section 33 contains a residual discretion not to fund support which is not reasonable and necessary - transport contribution considered - Tai chi considered - singing lessons considered - brain exercises considered - insurance for assistive technology considered - community activities funding considered - decision under review set aside and substituted
Ms Alexa McLaughlin, a 70-year-old resident of Canberra, lives with a number of disabilities. She has been a participant in the National Disability Insurance Scheme (the Scheme or the NDIS) since January 2015. Since that time several participant's plans have been prepared for her, pursuant to which various supports relating to her disability have been provided. On 27 June 2017 a delegate of the CEO of the National Disability Insurance Agency (the Agency or the NDIA) determined a statement of participant supports in respect of the plan prepared for the period 26 June 2017 to 26 June 2018. Ms McLaughlin had sought, but did not obtain, several supports for inclusion in that plan.
On 29 September 2017, Ms McLaughlin requested an internal review of the decision to refuse these supports. On 29 March 2018, a delegate of the CEO decided to affirm the decision not to include the supports she had requested. This is a decision susceptible to merits review by the Tribunal pursuant to s 103 of the National Disability Insurance Scheme Act 2013 (the Act).
On 16 April 2018, Ms McLaughlin applied to the Tribunal for merits review of the decision to refuse her these supports. Her application was heard over four nonconsecutive days, by telephone pursuant to protocols put in place by the Tribunal to deal with the coronavirus pandemic. The hearing was staggered to accommodate Ms McLaughlin's issues with fatigue and cognitive impairment. The Tribunal is satisfied that the parties were given a reasonable opportunity to give evidence and present their arguments at the hearing, noting ss 33A and 39 of the Administrative Appeals Tribunal Act 1975.
[35]
On 5 January 2015, Ms McLaughlin was granted access to the Scheme. The delegate who made the decision granting her access was satisfied that Ms McLaughlin met the disability requirements relating to impairments as set out in paragraphs 24(1)(a) to (e) of the Act; specifically, she met the disability requirements in respect of the following impairments:
[36]
(a) Osteoarthritis (knee and hip) significantly impacting her mobility;
[37]
However, Ms McLaughlin had also put forward evidence of other impairments as a basis for entry into the Scheme:
[38]
The delegate determined that Ms McLaughlin did not meet the disability requirements to be granted access in relation to these impairments.
On 27 June 2017, the Agency approved a Statement of Participant Supports in relation to her plan for the period 26 June 2017 to 26 June 2018 pursuant to s 33(2) (the 2017 plan). Those supports consisted of Assistive Technology in the amount of $650 together with the cost of preparation and delivery of meals and amounts for Improved Daily Living and Core Support. Other supports, including counselling/psychology, a replacement mattress and traditional podiatry, were refused. As already mentioned, Ms McLaughlin sought merits review in relation to those refused supports. During the proceedings, the parties sought to vary Ms McLaughlin's plan, reflecting agreement on some of the supports sought. Pursuant to this agreement a consent decision under s 42C of the Administrative Appeals Tribunal Act 1975 was made.
At the conclusion of the live hearing the Tribunal made a succession of directions for final closing submissions to be made in writing. Several submissions were then lodged by each of the parties. The Tribunal has reviewed and taken into account those submissions along with the submissions received from the parties prior to and during the hearing. It has also taken into account the material set out in the Tribunal Documents, Supplementary Tribunal Documents as well as:
[39]
(a) a report prepared by Dr Mary Carse dated 11 April 2019;
[40]
(b) a 60-page bundle of documents filed by Ms McLaughlin on 22 May 2020;
[41]
(c) Ms McLaughlin's approved plan dated 13 November 2019;
[42]
(d) various policy documents referred to me by the Agency; and
[43]
(e) a bundle of documents agreed by the parties and filed by the Agency on 29 April 2020 totaling 1159 pages.
[44]
These reasons will set out the relevant evidence in relation to each of the six disputed supports as each such support is considered. However, a general overview of some of the evidence is warranted here.
Pursuant to s 33(1)(a), Ms McLaughlin's 2017 plan set out her goals. They were as follows:
[45]
My First Goal is:
During this plan: to continue to receive transport support and support for aids and some household tasks.
[46]
During this plan:My home meets my financial, health and disability needs and is welcoming to others.
[47]
Goal: to have strong writing and editing skills, knowledge of the health and disability issues which are relevant to me, as well as wider issues relating to community participation and editing and writing potential projects, and to be able to join a community choir.
[48]
Goal: To have fruitful encounters with my current family and friends and widen my circle with new ones.
[49]
Goal: To contribute to my communities, engage with friends, and find new friends. Relates to: Social and community activities
[50]
Goal: to manage my health conditions so that my health-related quality of life is as good as possible, I feel peace and joy.
[51]
Goal: To have skills to actively market and deliver quality, reliable and timed editing and writing freelance services.
[52]
Several of the supports being sought in these proceedings relate to Ms McLaughlin's goals of community participation, to widen my circle with new [friends] and to contribute to my communities...and find new friends.[1] In her evidence, she explained why this was important to her:
[53]
I have become isolated from friends and family and I feel very disconnected from the community. My social isolation has been exacerbated by my experience of anxiety and depression which have contributed to long periods of isolation and inactivity. It is very hard for me to establish a new relationship as I have struggled with high levels of anxiety and also from Asperger's Syndrome (indistinct) that and mobility issues.
[54]
She explained that activities in the community:
[55]
...would provide me an opportunity to overcome some disability-related barriers and function because [I'm] practising skills and social interaction which I am working on with my psychologist.
[56]
Ms McLaughlin described what she considered to be the philosophical underpinning of the Scheme; in relation to the support allowing her to attend a tai chi class tailored to people with disabilities, she described the ethos of the Scheme as:
[57]
...a social model of disability in which society and physical environments must change to enable people living with impairments to participate in society on an equal basis with others, [whereas] requiring me to adjust to a mainstream class puts the burden on me to adjust my behaviour to accommodate society.
[58]
She told the Tribunal that her income was from the age pension. She used to do some freelance editing work, but had not been able to do so in the last two or three years; she hoped to do such work again in the future.
At the hearing Ms McLaughlin was assisted by Ms Molly Saunders, Advocacy for Inclusion.
[59]
Chapter 1 of the Act lays out the framework of the legislation, including its objects, principles and definitions. Section 3(1) provides:
[60]
(1) The objects of this Act are to:
(a) in conjunction with other laws, give effect to Australia's obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
(b) provide for the National Disability Insurance Scheme in Australia; and
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; ...
[61]
In turn, s 3(2) provides that the objects are to be achieved by:
[62]
(b) adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability; ...
[63]
Section 3(3) relevantly provides that, in giving effect to the objects of the Act, regard is to be had to:
[64]
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme; ...
[65]
Section 4 sets out General principles guiding actions under this Act. These principles are:
[66]
(1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
(2) People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.
(3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
(6) People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation.
(7) People with disability have the same right as other members of Australian society to pursue any grievance.
(8) People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.
(9) People with disability should be supported in all their dealings and communications with the Agency and the Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.
(10) People with disability should have their privacy and dignity respected.
(11) Reasonable and necessary supports for people with disability should:
(a) support people with disability to pursue their goals and maximise their independence; and
(b) support people with disability to live independently and to be included in the community as fully participating citizens; and
[67]
The "mechanics" of the Act commence in Chapter 2. Relevantly, s 13 provides that:
[68]
(1) The Agency may provide general supports to, or in relation to, people with disability who are not participants.
(2) In this Act:
general supportmeans:
(a) a service provided by the Agency to a person; or
(b) an activity engaged in by the Agency in relation to a person;
that is in the nature of a coordination, strategic or referral service or activity, including a locally provided coordination, strategic or referral service or activity.
The Agency may provide assistance in the form of funding for persons or entities:
(a) for the purposes of enabling those persons or entities to assist people with disability to:
(i) realise their potential for physical, social, emotional and intellectual development; and
(ii) participate in social and economic life; and
(b) otherwise in the performance of the Agency's functions
[71]
Chapter 3 is headed Participants and their plans. It provides that a person may request to become a participant, and allows for the CEO of the Agency to decide whether or not the prospective participant meets the prescribed criteria, which include age, residence and disability requirements. Section 24 sets out the disability requirements in these terms:
A person meets the disability requirements if:
[72]
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; and
2. the impairment or impairments are, or are likely to be, permanent; and
[73]
the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
[74]
(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.
[75]
Under s 28, a person becomes a participant in the Scheme when the CEO decides that the criteria are met.
Chapter 3 also deals with Participant's plans. Section 31 provides:
[76]
The preparation, review and replacement of a participant's plan, and the management of the funding for supports under a participant's plan, should so far as reasonably practicable:
(a) be individualised; and
(b) be directed by the participant; and
(c) where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(d) where possible, strengthen and build capacity of families and carers to support participants who are children; and
(da) if the participant and the participant's carers agree - strengthen and build the capacity of families and carers to support the participant in adult life; and
(e) consider the availability to the participant of informal support and other support services generally available to any person in the community; and
(f) support communities to respond to the individual goals and needs of participants; and
(g) be underpinned by the right of the participant to exercise control over his or her own life; and
(h) advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i) maximise the choice and independence of the participant; and
(j) facilitate tailored and flexible responses to the individual goals and needs of the participant; and
(k) provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.
[77]
Section 32 provides that the CEO must facilitate the preparation of the participant's plans.
Matters that must be included in a participant's plan
(1) A participant's plan must include a statement (the participant's statement of goals and aspirations) prepared by the participant that specifies:
(a) the goals, objectives and aspirations of the participant; and
(b) the environmental and personal context of the participant's living, including the participant's:
(i) living arrangements; and
(ii) informal community supports and other community supports; and
(iii) social and economic participation.
(2) A participant's plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a) the general supports (if any) that will be provided to, or in relation to, the participant; and
(b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; ...
(5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a) have regard to the participant's statement of goals and aspirations; and
(b) have regard to relevant assessments conducted in relation to the participant; and
(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
(1) The National Disability Insurance Scheme rules may make provision in connection with the funding or provision of reasonable and necessary supports or general supports, including but not limited to prescribing:
(a) methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding, the reasonable and necessary supports or general supports that will be funded or provided under the National Disability Insurance Scheme; and
(b) reasonable and necessary supports or general supports that will not be funded or provided under the National Disability Insurance Scheme; and
(c) reasonable and necessary supports or general supports that will or will not be funded or provided under the National Disability Insurance Scheme for prescribed participants...
[83]
Rules have been made for the purpose of ss 33 and 34, being the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Supports Rules). Pursuant to s 209 of the Act, the Supports Rules are a legislative instrument and form part of the legislative scheme governing the NDIS. Section 34(2) requires, in effect, that a decisionmaker (CEO, delegate or Tribunal) take into account matters set out in the Rules in being satisfied of the matters in s 34_: National Disability Insurance Agency v WRMF_ [2020] FCAFC 79 (WRMF) at [238].
A document entitled Operational Guidelines has also been made and was tendered at the hearing.[2] This is an internal document, created to provide guidance in relation to the preparation and review of a participant's plan, in particular the decision by the NDIA to approve a statement of participant supports (page 3 of the document). Ms McLaughlin submitted that the guidelines are part of a wider policy context which can inform the interpretation of the rules and legislation. Thus, while they are not binding, they should be considered as part of the wider context. The Tribunal accepts that submission.
[84]
Several preliminary issues must be dealt with before the substance of Ms McLaughlin's application can be addressed. The first of these relates to the scope of the Tribunal's review in the context of the present application.
Although Ms McLaughlin's application relates to the supports available to her under the 2017 plan, she sought reimbursement for amounts she had spent in relation to the disputed supports in earlier years, and funding for those supports in years following the 2017 plan. However, the Tribunal's jurisdiction extends only to the 2017 plan. There are no reviewable decisions, pursuant to s 103, in relation to supports in other years currently before the Tribunal, and it cannot make orders in relation to those other years.
Since the advent of the Scheme, the Tribunal has returned many times to the question of how a decision on supports in relation to a particular plan might impact on supports claimed by a participant in respect of other, generally later, plans: see for example the discussion in Ewin and National Disability Insurance Agency[2018] AATA 4726 (Ewin) at [280]-[318]; Castledine and National Disability Insurance Agency at [2019] AATA 4240 at [76]- [79]. In Williamson andNational Disability Insurance Agency[2019] AATA 2944 Deputy President Forgie considered that a participant may have access to supports after the review date for the relevant plan has passed, but that a new plan made by the Agency means that the previous plan is no longer in effect. The Tribunal may continue to hear any application for review of the earlier plan, and may increase the level of supports under that earlier plan, so that a participant may be reimbursed for any costs incurred. However, to review the supports provided under a new plan, a participant must make an application for review of that new plan.
[85]
CAN THE TRIBUNAL APPROVE SUPPORTS FOR IMPAIRMENTS OTHER THAN THOSE REFERRED TO IN THE ACCESS DECISION OF 2015?
[86]
At the outset of the hearing the Tribunal raised the question of whether it has jurisdiction to review a decision to approve supports under s 33(2) if a particular support is not related to an impairment which was the basis on which Ms McLaughlin obtained access to the NDIS pursuant to s 24.
The question was raised in particular by reference to rule 5.1(b) of Supports Rules. This rule provides that a support will not be provided or funded under the NDIS if it is not related to the participants disability. As will become apparent, some of the supports for which funding was sought by Ms McLaughlin relate to, say, cognitive impairment or depression, neither of which impairments constituted the basis on which she was granted access to the Scheme in January 2015. Accordingly, the issue arose at the hearing of whether the Tribunal has jurisdiction to revisit the 2015 decision, or whether that decision prevented the granting of funding for supports for impairments which had not been assessed as forming the basis for that decision.
According to the NDIA, this question of whether the CEO (or the Tribunal, standing in its shoes) can approve supports that relate to disabilities that do not appear to meet the impairment requirements under s 24 has not been determined in any previous decision of the Tribunal or a court. Accordingly, the Tribunal asked the parties to make submissions on this question, which each party did following the conclusion of the hearing.
The Agency made a submission in the following terms.[3] Determining this issue is a question of the proper construction of the Act and the Rules. The task of statutory construction must be resolved by having regard to the text of the statute as a whole, and the subject, scope and purpose of the statute and against the legislative history and antecedent circumstances: Coverdale v West Coast Council[2016] HCA 15; (2016) 259 CLR 164 at 172 [21]. This necessarily entails, as the High Court stated in ; at (and numerous other authorities), a proper understanding of the policy and purpose of the relevant statute.
[87]
A physical or mental condition that limits a person's movements, senses, or activities; (as a mass noun) the fact or state of having such a condition.
[88]
That meaning is evidently broader than what is determined to be a disability that meets the disability requirements under s 24. It is significant that s 24 does not use the term _disabilit_y other than in the heading and chapeau; rather it speaks of impairments. What is apparent is that the application of the requirements in this section results in an "inner circle" of impairments. Put another way, it is apparent that the section recognises that disabilities comprise a broader group than those impairments which will get through the respective filtering "hoops" contained in that provision. Implicit in s 24, therefore, is the recognition that not every disability will meet the disability requirements and therefore qualify a person to be a participant to the NDIS. But in no sense does s 24 purport to be a definition of disability for the purposes of the Act or Rules more broadly.
As MortimerJ observed in Mulligan v NDIA[2015] FCA 544; (2015) 146 ALD 418 (Mulligan) at [51], beyond the heading and chapeau, s 24 operate[s] not on the concept of disability, but on the concept of an impairment and (at [52]) the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person and (at [55]) the assessment to be undertaken is avowedly functional, and multi-faceted. That is, the assessment of a person seeking access by means of satisfying the disability requirements in s 24 is an assessment by reference to the functional impact of one or more permanent impairments on a person and which have the character of being intellectual, cognitive, neurological, sensory, physical or attributable to a psychiatric condition (s 24(1)(a)). Once the conclusion is reached that a person meets those requirements having regard to the functional effect of one or more of a person's permanent impairments meeting the requirements set out in s 24(1)(a), then the purpose of the inquiry as to the analysis of impairment is spent.
Furthermore, nothing in ss 20, 21 or 24 envisages that a decision on a person's access to the NDIS must be referenced back to a particular impairment. The decision required by s 20(1)(a) is whether or not a person . Accordingly, any findings on specific impairments are merely part of the reasons of the decisionmaker for being satisfied that the disability requirements in s 24 are met. If it were intended that subsequent decisions under the Act - including the question of reasonable and necessary supports under s 33 - were intended to be governed by the specific impairments that had been determined to meet the requirements of s 24 in the access decision, one would expect that to have been made clear in this Part by way of specific nomenclature that was then employed in subsequent areas of the Act.
[89]
13 Agency may provide coordination, strategic and referral services etc. to people with disability
(1)The Agency may provide general supports to, or in relation to, people with disability who are not participants.
(2)In this Act:
general supportmeans:
(a)a service provided by the Agency to a person; or
(b)an activity engaged in by the Agency in relation to a person;
that is in the nature of a coordination, strategic or referral service or activity, including a locally provided coordination, strategic or referral service or activity.
14 Agency may provide funding to persons or entities
TheAgency may provide assistance in the form of funding for persons or entities:
(a)for the purposes of enabling those persons or entities to assist people with disability to:
[90]
(a)(i) realise their potential for physical, social, emotional and intellectual development; and
[91]
(a)(ii) participate in social and economic life; and
[92]
(b)otherwise in the performance of the Agency's functions.
[93]
It is tolerably clear from these provisions that not every person with a disability will be a participant in the NDIS and the Agency's functions extend to people with a disability more broadly, not just to those who become participants in the NDIS. The context therefore reinforces the broad meaning of disability which is not limited to the impairments that satisfy the criteria in s 24.
The structure of the Act, and the scheme it establishes in the form of the NDIS, supports this conclusion. In particular, underpinning the NDIS is the expectation that participation in the Scheme will be for the person's lifetime, unless they elect to remove themselves from the Scheme or other prescribed exit triggers eventuate. This is reflected in two of the criteria in the disability requirements in s 24(1) in particular, namely (emphasis added):
[94]
(b) the impairment or impairments are, or are likely to be,permanent; and...
(e) the person is likely to require support under the National Disability Insurance Schemefor the person's lifetime
[95]
It is also reflected in ss 29 and 30 which govern when a person will exit the scheme (underlined emphasis added):
[96]
When a person ceases to be a participant
(1)A person ceases to be a participant in the National Disability Insurance Scheme launch when:
(a)the person dies; or
(b)the person enters a residential care service on a permanent basis, or starts being provided with home care on a permanent basis, and this first occurs only after the person turns 65 years of age; or
(c)the person's status as a participant is revoked under section 30; or
(d)the person notifies the CEO in writing that he or she no longer wishes to be a participant.
(2)A person is not entitled to be paid NDIS amounts so far as the amounts relate to reasonable and necessary supports that would otherwise have been funded in respect of a period after he or she ceased to be a participant.
Revocation of participant status
(1)The CEO may revoke a person's status as a participant in the National Disability Insurance Scheme launch if:
(a)the CEO is satisfied that the person does not meet the residence requirements (see section 23); or
(b)the CEO is satisfied that the person does not meet at least one of the following:
[97]
(b)(i) the disability requirements (see section 24);
[98]
(b)(ii) the early intervention requirements (see section 25).
[99]
(2)The CEO must give written notice of the decision to the participant, stating the date on which the revocation takes effect.
[100]
Importantly, these provisions make clear that a person's participation in the NDIS is not something that is required or generally available to be revisited on a regular basis. While the CEO has the discretion to revoke the person's status as a participant, there is no requirement for the CEO to look systematically at this question. Rather, the default position is that once a person becomes a participant, they remain a participant unless and until certain other events occur - which will, in many instances, simply be the death of the person.
That being the case, it would be impractical if the supports that a participant can obtain through the NDIS were limited to supports which related to the impairments which qualified them for access to the NDIS under s 24. After all, one can expect that over a lifetime a person's impairments may change, whereas their application for access to the NDIS occurs once, at a particular point in time.
In contrast, once a person is a participant in the NDIS, the Act - in particular Part 2 of Chapter 3 -provides for continual review of the supports that are provided to them through their participant plan. Indeed, participant plans have a finite duration and a participant may request that their plan be reviewed by the CEO at any time (s 48). In other words, participant plans are not static and are expected to change over time as the person's circumstances change over their lifetime. They therefore have the capacity to deal with new impairments as they arise.
Indeed, a requirement of participant plans is that they are individualised and take into account the surrounding circumstances of the participant: they are not focused on the impairment itself but rather on the supports the participant will be provided with under the Scheme and how they fit within the person's network. Section 31 - which does not mention the term impairment at all - provides as follows (emphasis added):
[101]
The preparation, review and replacement of a participant's plan, and the management of the funding for supports under a participant's plan, should so far as reasonably practicable:
(a)be individualised; and
(b)be directed by the participant; and
(c)where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(d)where possible, strengthen and build capacity of families and carers to support participants who are children; and
(da) if the participant and the participant's carers agree -strengthen and build the capacity of families and carers to support the participant in adult life; and
(e)consider the availability to the participant of informal support and other support services generally available to any person in the community; and
(f)support communities to respond to the individual goals and needs of participants; and
(g)be underpinned by the right of the participant to exercise control over his or her own life; and
(h)advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i)maximise the choice and independence of the participant; and
(j)facilitate tailored and flexible responses to the individual goals and needs of the participant; and
(k) provide the context for the provision of disability services to the participant and, where appropriate,coordinate the delivery of disability services where there is more than one disability service provider.
[102]
This is reinforced by the observations of the Full Federal Court in WRMF (at [141]) (underlined emphasis added):
[103]
The supports to be provided to a person who qualifies as a participant are intended to accommodate an individual's particular impairments and to assist that particular individual to be a participating member of the Australian community, and to do so on the basis of the values set out in the objects and guiding principles clauses of the Act, as well as the values set out in s 17A of that Act, which provides:
Principles relating to theparticipation of people with disability
(1)People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.
(2)People with disability will be supported in their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised.
(3)The National Disability Insurance Scheme is to:
(a)respect the interests of people with disability in exercising choice and control about matters that affect them; and
(b)enable people with disability to make decisions that will affect their lives, to the extent of their capacity; and
(c)support people with disability to participate in, and contribute to, social and economic life, to the extent of their ability.
[104]
Ultimately, as the Full Court in McGarrigle _recognised, the statutory task of determining the contents of a participant's plan, and what are the reasonable and necessary supports, is a fact-intensive exercise. More so than in many legislative schemes that confer an administrative benefit, the circumstances of each participant will vary greatly. The exercise is highly individualised. There will be an area of 'decisional freedom' (_Minister for Immigration and Citizenship v Li at [28] (French CJ)) for the decision-maker, about what supports fall within this description, given the circumstances of a particular individual. Provided no substantive legal error attends the choices made, it is possible for reasonable minds exercising the power under s 33(2) to differ. So too on merits review.
[105]
These provisions strongly suggest that the supports provided through a participant plan need not be limited to supports which relate only to the impairment which satisfied s 24 to enable the person to become a participant in the first place. Indeed, it is questionable that it would even be possible to "ringfence" supports in that way following the "highly-individualised" approach that places the person in the context of their network and focuses on their individual goals and needs. It is to be expected that a person's impairments may interact with each other and/or that a given support may relate to more than one impairment.
In short, as Mortimer J explained in Mulligan, the Act envisages that the question of whether a person has access to the NDIS is a separate process from the question of what reasonable and necessary supports are to be provided to a person who has been granted access to the NDIS:
[106]
[34] It is clear from the legislative scheme that the decision whether a person is or is not a participant is the threshold decision under the scheme, and the decision which enables access to the majority of benefits and funding available under the NDIS. However, what benefits and supports are provided, and how they are funded is subject to aseparate decision-making process. Finally, the broad approach to 'disability' accords with the broad aims of the Act which militate against implying areas of exclusion or limitation vis-à-vis the participant. This point was made recently by the Full Federal Court in WRMF_, albeit in the context of a different argument about implying words of limitation or exclusion (at [142]-[143]):_
142 ...The Act does not expressly exclude such activities from being funded supports. Nor has any exclusion been made under the NDIS Rules. In our opinion, there is no implied exclusion of such activities either, and indeed in our opinion the better view is that they are intended to be included. Otherwise, the values, objectives, purposes and guiding principles with which this legislative scheme is replete, where they speak of autonomy, 'best interests', 'exercising choice and control', 'participation in the community', 'full inclusion', 'potential for physical, social, emotional and intellectual development', 'respect for their worth and dignity', 'maximise their independence' and 'maximising independent lifestyles' are to be understood as not meaning what they appear to convey, and as being subject to a limit, by way of a hard and impassable line, at the point of physical intimacy with another human being.
143 In our opinion, it is clear the legislative scheme intends no such limits or exclusion, and no such hard lines to be drawn ....
[107]
Similarly, there is no basis in the text, context or purpose of the Act to warrant reading the term disability in rule 5.1(b) as being subject to any implied limitation that it cannot encompass impairments beyond the "inner circle" of impairments that met the s 24 criteria for access to the Scheme. On a proper construction of the Act and Rules, the broad approach is to be preferred.
While the Agency's analysis of this issue differs somewhat from that of Ms McLaughlin, the parties are nonetheless in agreement on the outcome. Ms McLaughlin made this point in relation to linking later impairments with the disability requirements in s 24:
[108]
I also note that medicine is not advanced enough, and people are too complex, to be able to conclusively attribute specific impairments to specific conditions or causes. Often, in the case of anxiety for example, conditions can be primary disabilities, but they may also be impairments resulting from a separate primary disability. The difficulty in delineating these was evidenced in Doctor Flanagan's testimony, in which she stated no-one could definitively state what the cause of my cognitive impairment is. This is because CFS contributes to co-morbidities with depression and anxiety - all of which can cause cognitive impairments. These conditions and impairments may also be impacted by obesity, lack of exercise, diabetic management, and sleep apnoea. There is not a clear link between any of the conditions and which disabilities cause which. Attempting to delineate these links leads to false and potentially inaccurate constructions. Inaccuracy is particularly likely where these links are being drawn by lawyers with no medical training, against the advice of doctors who themselves state that definitive links cannot be drawn.
[109]
The Tribunal finds the arguments set out above to be persuasive. They accord with what appears to be the practice of the Agency in dealing with participants, which is not to tie supports in subsequent participant's plans to impairments as originally determined. The arguments are also sufficiently concise and pertinent not to require reformulation by the Tribunal. Accordingly, the Tribunal considers that the disability referred to in rule 5.1(b) of Supports Rules is not a reference to a disability by virtue of which Ms McLaughlin was granted access to the scheme in 2015, but rather to any disability with which she presently lives.
[110]
NEED A SUPPORT SATISFY ONLY S 34 TO BE CONSIDERED "REASONABLE AND NECESSARY"?
[111]
Ms McLaughlin's closing submission commences with the proposition The NDIS Act 2013 outlines that a support will be funded if it satisfies the "reasonable and necessary" criteria outlined in s 34(1). Although the Agency did not state the relevant test confronting the Tribunal in such bald terms, its submissions appear to proceed on the basis that, if a support satisfies the criteria in s 34, then the support should be funded. (There are additional matters to which the CEO must advert as set out in s 33(5) although, for the most part, these are not expressed as conditions that must be met before support will be funded.)
This approach to the Act assumes that the words reasonable and necessary in paragraph 33(2)(b), in relation to the supports that will be funded, do not impose any additional evaluative exercise on a decisionmaker beyond what is imposed by s 34. Put another way, the words reasonable and necessary in paragraph 33(2)(b) merely describe the effect of the provisions in s 34, but do not add to them.
The Full Federal Court in WRMF was faced with the question of the interplay between ss 33 and 34, and in the course of that interplay it identified what it described as the s 33 residual discretion argument. It analysed the question in the following way (at [158]-[167]):
[112]
158. The Agency's contentions on grounds 4(a) and (b) are summarised in its written submissions in the following way:
The Tribunal proceeded on the bases that: (i) if satisfied of all of the matters enumerated in s 34, the claimed support is 'reasonable and necessary' within the meaning of the NDIS Act (Reasons at [7]); and (ii) if a support is 'reasonable and necessary', it should be fully funded, and no overarching discretionary decision exists under s 33 to decline to do so: Reasons at [7], [31].
159. The Agency's substantive argument is set out at [46]‑[48] of its written submissions, but is encapsulated in the first part of [46]:
The words in parentheses in s 33(2)(a) and (b) are important: '(if any)'. Those words recognise a residual discretion on the part of the CEO not to include in the statement of participant supports provision/funding for general supports and/or reasonable and necessary supports even if they meet the requirements of s 34. That construction is supported by the express terms of s 34 which set out the minimal requirements before a support might be funded to any extent; it does not require supports which meet those requirements to be funded - let alone fully funded.
160. The Agency properly conceded that it did not put a submission of this kind to the Tribunal. Indeed, it conceded its submissions to the Tribunal 'invited [it] to err'.
161. It is necessary therefore to set out what was put to the Tribunal. In its position statement prior to the hearing the Agency identified the issues in dispute, and its submissions about them, as revolving entirely around whether the Tribunal could be satisfied of the matters in s 34 (at [24]‑[56]). There were other aspects of the legislative scheme emphasised by the Agency (such as financial sustainability) but no reference at all to a residual discretion in s 33(2) to refuse to approve a support which had been found as a matter of fact to be a 'reasonable and necessary support'.
162. In its final written submissions at [13], the Agency acknowledged a submission put on behalf of the respondent that 'financial sustainability of the NDIS does not "create a residual discretion to refuse" a support', and contended this was not its argument; rather, its argument was that financial sustainability was an 'important overarching consideration'. In fact, in her final written submissions at [27], the respondent had put her contention squarely that:
[113]
It appears to the Tribunal as presently constituted that the question which the Federal Court adverted to but did not finally determine is squarely given rise to in the present proceedings. This is because it has reached the view, as discussed in the paragraphs which follow, that some of the supports sought by Ms McLaughlin satisfy the provisions of s 34 but may not be considered reasonable and necessary pursuant to s 33(2). Clearly, if a support meets the criteria in s 34 and there is no residual discretion in s 33, then the support sought must be funded, but if there is such a discretion then the support must be measured against that test, and refused if it does not meet the test. On the Agency's submissions, the issue does not arise because it contends that the supports Ms McLaughlin seeks do not satisfy the requirements of s 34. However, the Tribunal does not accept some of the Agency's contentions in that respect, and accordingly the question of the residual discretion arises and must be considered.
After careful consideration, the Tribunal has come to the view that there is a residual discretion in s 33 to refuse to fund the support which meets the criteria in s 34. It has reached this position for three reasons.
First, the chapeau of s 34(1) requires the CEO to be satisfied of certain criteria, set out later in the subsection, before specifying the reasonable and necessary supports which will be funded in a participant's statement of participant supports. A support cannot be approved unless it satisfies these criteria. However, the chapeau does not say that the supports will be funded if they meet the stipulated criteria. It would have been a simple matter to have drafted the chapeau in such terms, had that been the intention. I infer from this construction that satisfying the s 34(1) criteria is a necessary but not sufficient step in having a particular support approved.
Secondly, s 33(2)(b) requires a participant's plan to specify the reasonable and necessary supports (if any) that will be funded under the Scheme. Had it been the legislative intention that the description of what constitutes reasonable and necessary supports is captured in s 34(1), one might have expected either that these words would be followed by a phrase such as as stipulated in s 34(1), or a definition might have been found in s 9 in terms such as:
[114]
reasonable and necessary supportsmeans supports which satisfy the criteria in section 34
[115]
The absence of any provision cross-referencing reasonable and necessary supports to the criteria in s 34(1) lends weight to the view that s 34(1) does not define, in effect, what constitutes a reasonable and necessary support.
[116]
Thirdly, s 34(1) is framed so as to elevate the contents of the participant's statement of goals and aspirations, referred to in s 33(1), to be a key consideration against which supports are to be assessed. The first criterion in s 34(1) is that the support, to be approved, will assist the participant to pursue goals, objectives and aspirations included in the participant's statement of goals and aspirations. The second criterion is that the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation. A participant's goals, objectives and aspirations and their social and economic participation are matters set out in their statement of goals and aspirations. By the terms of s 33(1), these are matters for the participant alone to stipulate; the CEO has no role in that exercise. The first two criteria in s 33(1) are determined, therefore, according to the subjective wishes of the participant.
The other criteria in the subsection are framed somewhat more broadly, but still provide little or no scope for a general discretion on the part of the CEO, or another decision-maker standing in his or her shoes, to refuse a support where he or she thought it reasonable to do so. Paragraph (c) in the subsection requires that the support represents value for money, but specifically in the context of the goal or goals which the support is designed to achieve. The criterion in paragraph (d) requires that the support will be effective and beneficial for the participant, but does not stipulate that the goal which the support pursues also be effective and beneficial to the participant.
Paragraphs (e) and (f) requires the CEO to determine whether an alternative source of funding should be required to meet the cost of the support. The choice, however, appears to be binary, that is, the CEO must determine whether the support should be funded by families, carers and informal networks, on the one hand, or by the community on the other, but cannot determine that none of these groups should fund the support. Similarly, in paragraph (f), if a support is not more appropriately funded by a person body or system offered as part of a universal service obligation or in accordance with a law dealing with discrimination, then it must, it seems, be funded by the Scheme.
[117]
There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.
Of course, a policy must be consistent with the statute.It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created.A policy which contravenes these criteria would be inconsistent with the statute.These considerations warrant the Tribunal's adoption of a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary...
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular | case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny...
The general practice will require the Tribunal to determine whether the policy is lawful, not in order to supervise the exercise by the Minister of his discretion, but in order to determine whether the policy is appropriate for application by the Tribunal in making its own decision on review.
[118]
See also the discussion of this issue by Mortimer J in G v Minister for Immigration and Border Protection[2018] FCA 1229 at [201]- [204].
[119]
Although his Honour was referring in this decision to the lawfulness of ministerial policy promulgated to assist in applying the Migration Act, the same considerations must apply to rules made by the Minister pursuant to a power expressed in a statute. In this case, the source of the relevant power is ss 35 and 209 read together.
The overriding principle is that the instrument - whether ministerial policy, statutory rules or any other form of delegated legislation - must be consistent with the statute under which it is made. In the case of an instrument facilitating the conferring of a benefit, the instrument must not have the effect either of enlarging or of restricting the criteria for access to that benefit set out in the statute. As the High Court said in Shanahan v Scott[1997] HCA 4 at [4]:
[120]
The result is to show that such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends.
[121]
In circumstances where the instrument widens (or restricts) the purposes of the relevant act, the instrument must be held to be invalid, or must at least be disregarded to the extent of the inconsistency. The Tribunal has had occasion to act in this way in at least three instances with respect to instruments made under the Act: see Ewin at [80]-[82]; Madelaine and National Disability Insurance Agency[2020] AATA 4025 at [118]- [131]; TYKL and National Disability Insurance Agency[2021] AATA 135 at [103]- [108].
Applying that principle to the present case, if the view is taken that s 34(1) wholly encompasses the criteria for determining what supports a participant will receive, then the Supports Rules may in part be invalid in that they appear to restrict the criteria in s 34. For example, Rule 5.1(a) provides that a support will not be funded if it is likely to...pose a risk to others. Nothing in s 34(1) would appear to justify this limitation on the funding of a support. Section 34(1) is substantially focused on the effect of a support on a participant, not on the effect of a support on the broader community. The same objection arises to Rule 5.3(b), which prohibits a support that consists of income replacement. Logically, a support in the form of income replacement could comfortably satisfy all the criteria in s 34(1). A similar concern arises with respect to the prohibition on a support relating to day-to-day living costs in Rule 5.1(d).
According to the introductory paragraphs of the Supports Rules, however, they are drafted , i.e. not merely s 34. If the rules are taken, therefore, to assist in the interpretation of the phrase in s 33(2), then the impugned provisions referred to in the previous paragraph acquire validity; the provisions are obviously relevant to the question of whether a particular support is in a broader context. Of course, a subordinate instrument cannot be used as an aid in the interpretation of the statute under which it is made - only the reverse is true. However, the Tribunal notes that only the residual discretion approach preserves the regime by which supports are currently assessed by the Agency applying the Supports Rules.
[122]
I, therefore, retain the opinion which I expressed in the earlier case that Roche v. Kronheimer did decide that a statute conferring upon the Executive a power to legislate upon some matter contained within one of the subjects of the legislative power of the Parliament is a law with respect to that subject, and that the distribution of legislative, executive and judicial powers in the Constitution does not operate to restrain the power of the Parliament to make such a law. This does not mean that a law confiding authority to the Executive will be valid, however extensive or vague the subject matter may be, if it does not fall outside the boundaries of Federal power. There may be such a width or such an uncertainty of the subject matter to be handed over that the enactment attempting it is not a law with respect to any particular head or heads of legislative power. Nor does it mean that the distribution of powers can supply no considerations of weight affecting the validity of an Act creating a legislative authority.
[123]
Given the number of occasions when the Tribunal has seen fit to disregard instruments made under the Act on the basis that the instrument exceeds the legislative head of power, a cautious approach should therefore be adopted to the interpretation of the Supports Rules. This background lends support, in the Tribunal's view, to an approach to the Supports Rules which sees them as wholly consistent with the terms of s 33.
On balance, the Tribunal finds that there is a residual discretion in s 33(2) to determine that a support which satisfies the criteria in s 34(1) may nonetheless not be a reasonable and necessary support. In making such an assessment, the Supports Rules must be taken into account.
The Tribunal will now proceed to consider, in light of the findings it has made above about the scope of Ms McLaughlin's application and the proper interpretation of the Act and the Supports Rules, the six individual supports which she has claimed should be funded by the NDIS. Where, in these reasons, a particular criterion under s 34(1) in relation to a proposed support is not discussed, this is on the basis that the parties agreed, and the Tribunal concurred, that the particular criterion was satisfied in that instance.
[124]
Assessing Ms McLaughlin's claim for a transport support was very difficult. In one submission she said that her transport circumstances have changed during these proceedings as a result of events in these proceedings. Whether for this reason or otherwise, it was difficult both to pinpoint what transport options had been available to her at particular points in time and to identify the nature of the support for transport she was seeking from the Tribunal.
It may be useful to set out what the Tribunal understands to be the factual position, at the close of submissions, regarding her ability to use different transport options.
Ms McLaughlin cannot use public transport, due to limited mobility and chemical sensitivities. This claim was not contentious at the hearing. She gave evidence at one point that she was unable to use wheelchair accessible taxis or Uber vehicles. This was because of low seating, which she was unable to utilise due to her obesity, osteoarthritis and orthostatic intolerance. She had sometimes used a taxi where she had remained in the seat of her mobility scooter for the journey, but she discovered that this was illegal. She ceased using taxis at the end of 2018. She had, however, in recent years used community transport. This is provided by a local service in Canberra via a car and a bus which each have a seat high enough for Ms McLaughlin to use. The trips incur a nominal cost and this form of transport is only available from 9am to 5pm on weekdays. She said she has no familial support in Canberra, and minimal social supports, to assist her with transport.
Some of her evidence about transport was provided without reference to particular dates, so that the point in time to which that evidence relates was not always clear. However, it seems that she drove a private vehicle until 2017. She had received an allowance for transport support from the NDIA, from which she funded the costs of her vehicle. This allowance was discontinued in June 2017, and she took her car off the road in August 2017. It appears she received funding for the installation of a hoist in her vehicle, but the hoist was never installed, because of difficulties securing the appropriate product from suppliers. Ms McLaughlin received a payment from the Agency for the modification, however, which she acknowledged was not spent for that purpose and which remains a debt to the Agency. She subsequently bought a further, secondhand vehicle . However, the vehicle had required repairs and later became undrivable, and in early 2020 was written off following a devastating hailstorm.
[125]
Ms McLaughlin submitted that running costs associated with her vehicle meet the criteria of s 34(1). The transport funding is value for money under s 34(1)(c) and is appropriately funded by the NDIA under s 34(1)(f), she said.
In relation to the latter, she referred to rules 7.21 and 7.22 of the Supports Rules (under the heading Considerations relating to whether supports are most appropriately funded through the NDIS). These rules provide:
[126]
7.21 The NDIS will be responsible for:
(a) supports for a person that enable independent travel, including through personal transport-related aids and equipment, or training to use public transport; and
(b) modifications to a private vehicle (ie not modifications to public transport or taxis); and
(c) the reasonable and necessary costs of taxis or other private transport options for those not able to travel independently.
7.22 The NDIS will not be responsible for:
(a) ensuring that public transport options are accessible to a person with disability, including through the funding of concessions to people with disability to use public transport; or
(b) compliance of transport providers and operators with laws dealing with discrimination on the basis of disability, including the Disability Standards for Accessible Public Transport 2002; or
(c) transport infrastructure, including road and footpath infrastructure, where this is part of a universal service obligation or reasonable adjustment (including managing disability parking and related initiatives).
[127]
She submitted that her transport costs fell under rule 7.21(a). However, she submitted that transport supports can still be funded even if they do not fall within the ambit 7.21(a)-(c); provided that they are not excluded by 7.22. She cited Ewin as authority for this proposition. The phrase enable independent travel refers to the NDIS's responsibility for supports which are necessary to facilitate independent journeys, in addition to (not at the exclusion of) costs incurred by the actual journey itself. Enable independent travel thus means giving someone the means to make a specific type of journey; namely, one that doesn't require the support of another person.
She argued that the "means" (or "enablers") which makes this journey possible may include supports such as those listed in 7.21(a) as examples: personal transport-related aids and equipment, or training to use public transport. However, this list is not exhaustive. This is because it begins the list with the word including. The "enablers" may therefore include other ways by which to make this type of travel possible. She rejected the Agency's contention that enabling independent travel is different to funding such travel. She said that the phrase the NDIS will be responsible for independent travel is narrower than the phrase supports that... enable independent travel. She said independent travel is a qualified noun; namely, it is a specific type of journey using transport. The phrase the NDIS will be responsible for independent travel thus refers to the NDIS's responsibility for costs related to a "specified type of journey". Independent travel, as a specific type of journey, may entail costs including petrol or bus fares. It does not entail costs such as training to learn to use public transport. This is because it is not a cost of the journey; rather it is a cost which enables the journey.
Ms McLaughlin also referred to rule 5, which relevantly sets out:
[128]
5.1 A support will not be provided or funded under the NDIS if:
(a) it is likely to cause harm to the participant or pose a risk to others; or
(b) it is not related to the participant's disability; or
(c) it duplicates other supports delivered under alternative funding through the NDIS; or
(d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant's disability support needs.
5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a)additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b)costs that are ancillary to another support that is funded or provided under the participant's plan, and which the participant would not otherwise incur.
[129]
She maintained that her transport costs are incurred solely and directly as a result of her disability support needs. It is illogical, she said, to argue that the fact that many Australian's incur the costs of running a private vehicle means that this cost does not relate to their disability. This reasoning conflicts with the Rules. The existence of rule 5.2(a) indicates that a cost may be a daily expense incurred by many Australians, yet still related to disability and therefore potentially funded by the NDIS. Thus, the rules indicate that it is not logical to argue that a cost does not relate to disability simply because many Australians incur the expense.
This argument can be extrapolated through example. Namely, all Australians have to pay money towards food. It is therefore a day-to-day living cost. However, participants may receive funding for food (i.e. Meals on Wheels) where part of the cost, for food preparation, is incurred due to their disability support needs, for example, where they cannot cook and have no one to cook for them. Thus, while food is an everyday living cost, part of the cost may be funded by the NDIS if the cost is attributable to their disability support needs.
She also argued that the proposed support represents value for money pursuant to s 34(1)(c). This is because, being dependent on private transport, there are no comparable supports which would achieve the same outcome at a lower cost.
She submitted that If I did not have a disability, I would not require private transport but could rely on public transport and taxis.
Finally, Ms McLaughlin submitted that transport supports should be restored to her pursuant to the "no disadvantage" principle. The principle of "no disadvantage" was based on the Council of Australian Governments Intergovernmental Agreement for the NDIS launch made on 7 December 2012, in which it was stated that the supports provided by the NDIS will enable the person to achieve at least the same level of social and economic participation (or undertake the same range of activities) as enabled by their previously provided support. She said that, in her case, the loss of her previous transport support had meant she was unable to keep her car on the road. Accordingly, she suffered disadvantage by virtue of the transport support being removed.
[130]
(a) it does not fall within any of the transport supports for which the NDIS will be responsible as specified in rule 7.21 and as required by s 34(1)(f) of the Act (support is most appropriately funded or provided through the NDIS);
[131]
(b) it falls within a day-to-day living cost not attributable to Ms McLaughlin's disability support needs and therefore is not to be funded under the NDIS pursuant to rule 5.1(d); and
[132]
(c) it does not meet the criteria in s 34(1)(c) (as being value for money).
[133]
It suggested that rule 7 of the Supports Rules provides guidance in determining whether the criterion in s 34(1)(f) has been met. Rule 7.21 effectively prescribes a "hierarchy":
[134]
(a) with the primary aim being to enable the participant to travel independently, via funding of public transport or via modifications to a private vehicle; or
[135]
(b) with the fall-back position if the participant is not able to travel independently, via funding of the reasonable and necessary costs of other private transport options.
[136]
Importantly, rule 7.21 does not say that the NDIS will be responsible for funding costs of independent travel per se. It is focused on enabling independent travel. Quite clearly the term enable is directed to what the participant needs in order to travel independently in the same way that other Australians (without a disability) can. This is evident from the examples provided in rule 7.1(a) (personal transport-related aids and equipment, or training to use public transport) which are all items that other Australians (without a disability) do not require. The rule is not addressing the ordinary costs of independent travel that other Australians undertaking such independent travel will incur. Rather, the NDIS will be responsible for funding the additional mechanism necessary to enable the participant to travel independently as other Australians may do, whether on public transport or through their own vehicle.
It is only if the participant will not be able to travel independently that it will be necessary to consider the fallback position under rule 7.21(c).
The NDIA contended that, in the present case, there is no dispute (at least in terms of the reviewable decision) that Ms McLaughlin is not able to travel independently via public transport but is able to travel independently via her own private vehicle. This has been enabled by the provision of funding under her previous plans for a mobility scooter and a hoist to load the scooter in/out of her vehicle, together with maintenance costs for those items. Funding for those supports is not in dispute in the plan that is the subject of the reviewable decision.
Rather, she is seeking the transport support to fund the costs of maintaining that private vehicle, namely vehicle maintenance costs, including services, insurance and registration. However, those are the same costs that every Australian (without a disability) who travels independently via a private vehicle will incur; they are not costs that enable her to travel independently using her private vehicle but rather they are the costs of running a private vehicle. They are plainly outside the costs that the NDIS will be responsible for as articulated in 7.21(a) and 7.21(b).
The Agency rejected Ms McLaughlin's argument based on Ewin that the purpose of the rules is to prescribe the supports that are more appropriately funded through other service systems and therefore any support which does not fall within that group can therefore be funded by the NDIS. This construction effectively means that rule 7.21 is merely a non-exhaustive set of examples of supports that can be funded by the NDIS but all one really needs to do is ensure that the claimed support does not fall within rule 7.22 which is the "key provision". However, there is nothing in the language of rule 7.21 to suggest that it is a non-exhaustive list. It is not a list; rather, it is a description with some examples.
[137]
Day-to-day living costs may include rent, groceries or utility fees, however, this is not an exhaustive list. Transport is an incidental cost of everyday life for most people and, therefore, can also be considered to be a day to day-to-day living cost.
[138]
The Agency rejected Ms McLaughlin's submission that, but for her disability, she could rely on public transport and would not need a private vehicle. It observed that she is not required to own and run a private vehicle because of her disability. She is not obliged to run a private vehicle at all. If she elected not to run a private vehicle (for cost reasons or otherwise), she presumably would not be able to travel independently and would be eligible for reasonable and necessary costs of taxis or other private transport options under rule 7.21(c). It noted the provision in the Operational Guidelines to the following effect:
[139]
The NDIA will generally not fund:
• The purchase of a motor vehicle
• Regular insurance, registration or running costs...
[140]
Her vehicle maintenance costs do not arise solely and directly as a result of [her] disability support needs. She runs her private vehicle because she wants to be mobile for the usual reasons that any Australian (without a disability) wants to be mobile. This is not a case where there is some extraordinary travel requirement arising solely from her disability needs.
With respect to the "no disadvantage" principle, the NDIA submitted that the principle does not entitle an applicant to support that does not otherwise meet the requirements for approval under the Act and the rules. It further submitted that, applying the criteria in the Operational Guidelines, the relevant test is not whether Ms McLaughlin no longer receives a benefit which she previously received, but rather whether there is evidence that she has not been able to achieve at least the same level of social and economic participation (or undertake the same range of activities) as enabled by her previously-provided support. There was no evidence, it said, to show that she was disadvantaged in that sense.
[141]
In the course of the hearing the parties agreed that, if the Tribunal accepts that transport support for Ms McLaughlin is reasonable and necessary, then the amount should be quantified according to the levels described in the Operational Guidelines, rather than by reimbursement of actual costs on production of documentary evidence.
The difficulty with this approach is that agreement of this kind does not obviate the requirement to determine specifically what amount, if any, Ms McLaughlin may be entitled to in the way of transport supports pursuant to the application of the Act and the rules. Notwithstanding any agreement to the contrary, she will be entitled to the full cost of those supports as so determined: see Ewin at [80].
For the reasons which follow, the Tribunal considers that Ms McLaughlin is entitled to transport supports, although the amount cannot presently be determined by the Tribunal; the quantum of her entitlement can only be determined by the Agency on remittal. If, in those circumstances, the parties agree that her entitlement will be best met by the payment of an allowance at a particular level pursuant to the Operational Guidelines, that is a matter for them.
Dealing firstly with the question of whether the transport supports are most appropriately funded or provided through the Scheme, it is necessary to consider what obligation is imposed on the CEO under s 34(1)(f) in relation to the funding of a proposed reasonable and necessary support. The CEO must determine if the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, [etc]. The choice appears to be a binary one, that is, the CEO must determine that the support is most appropriately provided either (a) through the Scheme or (b) through one of the other specified mechanisms (general systems of service delivery/part of a universal service obligation/or under a discrimination law). There is no implied third choice, i.e. that the support should be funded under neither the Scheme nor one the other specified mechanisms. It is significant that the election between these two alternative categories falls at the end of subsection (1). On this interpretation, if a support satisfies paragraphs (a) to (e) of the subsection, and is not most appropriately funded through one of the other specified mechanisms, then it must be funded through the Scheme. If the choice were not a strictly binary one, then the two alternatives referred to in paragraph (f) would appear in separate paragraphs, rather than the same paragraph.
[142]
When deciding to include proposed supports in a participant's plan, the NDIA will also have regard to the following matters:
10.9.1 The principle of "no disadvantage"
Governments have made a commitment through the Intergovernmental Agreement for the NDIS that people receiving supports before becoming participants of the NDIS should:
• not be disadvantaged by the transition to the NDIS; and
• be able to achieve at least the same outcomes (i.e. achieve at least the same level of social or economic participation or maintain the ability to undertake the same range of activities) in the NDIS as compared to those expected to be achieved by their previously provided support.
This commitment made by Government is referred to as the principle of 'no disadvantage'.
The NDIA is not a party to the Intergovernmental Agreement and the principle of no disadvantage is not a specific obligation imposed on the NDIA under the NDIS Act.
Notwithstanding, when performing its functions the NDIA must use its best endeavours to act in accordance with any relevant intergovernmental agreements (section 118(2)(a)).
The principal of no disadvantage does not mean that a participant will always have the same level of funding, types of support or amount of support. For example, participants may have been previously receiving supports which continue to be most appropriately funded or provided by another service system.
Rather, the principal of no disadvantage refers to a participant's overall package of supports under the NDIS rather than a continuing entitlement to every form of support received before the NDIS commenced.
10.9.2 Participants transitioning with existing supports
The NDIA will need to consider the context for participants who have existing supports and how these participants will transition smoothly to any new supports funded by the NDIS...
[143]
Ms McLaughlin's evidence was that for several years she had received an allowance for transport support both in the period before joining the NDIS and subsequently as part of her plans, from which she funded the costs of her vehicle. This allowance was discontinued in June 2017, and she took her car off the road in August 2017. Her submission was that she could no longer afford to run the vehicle (or at least make necessary repairs to it) with the discontinuation of the transport allowance. I accept her submission regarding the reasons she took the car off the road. It seems to me that this uncontradicted evidence demonstrates that she is indeed unable to achieve at least the same outcomes (i.e. achieve at least the same level of social or economic participation or maintain the ability to undertake the same range of activities) as compared to those achieved by her previously provided support. As a person with few transport options other than a private vehicle, the loss of her ability to operate her vehicle would very probably result in less favourable outcomes, particularly in terms of social and economic participation. This position may be contrasted to that in Blattman, where the Tribunal found (at [51]-[52]) that Mr Blattman had provided no evidence that he had been unable to achieve at least the same level of social and economic participation as enabled by his previous supports.
However, s 118(2) of the Act provides that:
[144]
(2) In performing its functions, the Agency must use its best endeavours to:
(a) act in accordance with any relevant intergovernmental agreement...
[145]
The Agency submitted that the general obligation contained in s 118 is subordinate to the specific criteria for funding supports contained in s 34. That is, Ms McLaughlin must demonstrate that she meets the relevant statutory criteria for supports in addition to showing that she has been relevantly disadvantaged by the loss of her previous transport support. As a matter of statutory interpretation, this submission must be accepted. The consequence of this is that the remedial measures for disadvantaged participants outlined in 10.9.2 of the Operational Guidelines may not be available to her.
[146]
Ms McLaughlin sought funding for a tai chi class membership of approximately $300 per year, plus a trial with an exercise physiologist, to support her in the pursuit of her 2017 plan goal to manage my health conditions so that my health-related quality of life is as good as possible. She submitted that tai chi is particularly beneficial for obesity and osteoarthritis. She said that she needed to undertake these classes seated due to her disabilities. The program she had identified was superior to, and better value for money than, a free class because:
[147]
...the benefits of having a tai chi class which is significantly catered to mobility difficulties and other health and disability difficulties outweigh the benefits of doing a free [class] that is catered to able bodied people and expecting me to self adjust to the movement.
[148]
Ms McLaughlin argued that the funding for tai chi met the requirements of s 34(1) and would assist her in improving her quality of life. She argued that a modified tai chi class - what she termed recovery tai chi - catered to people with mobility difficulties or other disabilities, would meet her support needs. A mainstream tai chi class is not, she said, modified for mobility limitations such as her own.
Ms McLaughlin called her general practitioner, Dr Georgina Flanagan, to give evidence. She asked Dr Flanagan the following questions:
[149]
And how would I benefit from attending a tai chi class, which is catered for people with pain and mobility, as opposed to attending a generic type tai chi class in which I would have to self-adapt the movements?---I actually think you'd have to go to some kind of targeted classes. You are quite limited in what you can do. Or at least you'd need a program modified for you that you could then go on later and do a normal class once you'd had someone go through the original exercises with you.
And do you think there's any risk with attending a generic tai chi class?---Well, not if you had appropriate - you know, and a physio or a tai chi person look at you and decide what was appropriate first. I do think you need someone to look and discuss what's appropriate for your condition. But I think once you started, you could probably move through.
[150]
Ms McLaughlin referred the Tribunal to an academic article in Asian Nursing Research (December 2008) which made the following findings:
[151]
Tai Chi exercise has been proven to be beneficial among elders with osteoarthritis (OA). The long-term effects of this exercise remain unclear. The purpose of this study was to evaluate the effects of the Tai Chi exercise for Arthritis (TCEA) program on the physical status and quality of life of OA elders.[7]
[152]
In her second closing submission she referred to two further articles from North American publications, describing health benefits (including mental health benefits) from tai chi.
The Agency's submission to the Tribunal was that tai chi did not satisfy rule 5 of the Supports Rules. It submitted that merely because Ms McLaughlin needs to choose certain types of exercise activities over others does not of itself render tai chi classes related to her disability for the purposes of rule 5.1(b), nor does it convert the everyday cost of exercise applicable to other Australians (without a disability) into an additional cost that is solely and directly incurred as a result of her disability support needs for the purposes of rules 5.1(d) and 5.2(a). It is notable, said the Agency, that Ms McLaughlin did not provide any evidence supporting the conclusion from [her] research that tai chi is one of the few forms of exercise she can do.
Even if she were able to satisfy rules 5.1(b) and 5.2(d), the NDIA submitted that a central concern with this support is the failure to meet the value for money criterion in s 34(1)(c). Once again, she had not put any evidence before the Tribunal, it said, to demonstrate the research she has conducted to rule out any comparable exercise activities that would achieve the same outcome at a substantially lower cost (rule 3.1(a)) or to demonstrate that the tai chi support sought is comparable to the cost of supports of the same kind that are provided in the area where she resides (rule 3.1(e)). It referred to her assertion that:
[153]
I agree that finding free stuff is great and there is a little bit of relatively cheap tai chi around but it doesn't meet the specific-to-my-needs criteria.
[154]
The Agency said that there was no evidence about this relatively cheap tai chi, nor was there evidence about the cost of the exercise physiologist.
[155]
The NDIA also contended that the tai chi support fails to meet the effective and beneficial criterion in s 34(1)(d). It referred to an oral submission of Ms McLaughlin where she said:
[156]
I accept that there isn't enough - well, there may not be enough hard evidence like there is other - over the brain exercises - in which case I was looking for - oh, like the difference between over the brain exercises is that I did trial it. I did go [to] it for several months. And I certainly benefited...
... Anyway, my view is that I have trailed it and I will try and find a description that I gave at the time of the - benefits that I got. All I have remembered is that they're - which is often the case for me - I remember the conclusion I drew. And the conclusion I drew at the time was that this was really useful. Really wanted it. Can't afford it.
[157]
It conceded that the Operational Guidelines make it clear that a participant's lived experience is relevant evidence to this question, particularly if the participant has firsthand knowledge of a particular support and can articulate the benefits that they have obtained from it. However, it is clear from the Operational Guideline that the evidence is expected to go beyond the mere lived experience of the participant and extend to some independent material supporting that it is current good practice rather than simply what the individual participant says is or may be good for them.
The Agency referred to Ms McLaughlin's evidence in cross-examination to this effect:
[158]
So therefore, my argument is, I am not making the argument that tai chi should be considered as a support, because I have got great reviewed evidence. I acknowledge I don't have that. So, what I have said is, let's consider this as an innovative thing and have it monitored and identify whether it is beneficial. So, I'm not arguing this on the basis of existing evidence, I'm saying, let's collect some more...
[159]
It contended that, while one of the objects of the Act is promote the provision of high quality and innovative supports (s 3(g)), innovation, of itself, does not displace the requirement that a support must be effective and beneficial, having regard to current good practice.
Of the article in Asian Nursing Research, the Agency said the long-term effects of tai chi for older people with arthritis were unclear. It said that the difficulty with this evidence is that it simply relates to the benefits of tai chi generally, and does not go to the issue of recoverytai chi in a seated position which the Applicant maintains is what she requires funding for and what is not offered as part of the relatively cheap tai chi generally around.
[160]
The support Ms McLaughlin seeks here raises questions as to the evidentiary threshold which must be met by an applicant in demonstrating that a support satisfies the statutory test in ss 33 and 34.
It is true, as submitted by the NDIA, that Ms McLaughlin, as the applicant for supports under the Act, needs to demonstrate that the evidence sustains her argument that the disputed supports meet the statutory test. As the Federal Court in Beezley v Repatriation Commission[2015] FCAFC 165 at [68] characterised this exercise:
[161]
...as a practical matter, it is not incorrect to say that a person "must satisfy" the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest...
[162]
Thus, if the evidence in relation to a statutory test is in a state of balance, favouring and disfavouring an applicant's contentions in equal measure, one would generally expect such an application to fail.
[163]
The evidence Ms McLaughlin has presented to show that tai chi meets the statutory test is of three kinds: academic articles suggesting generalised benefits from tai chi for people suffering osteoarthritis or mental illness, the evidence of her GP that this type of exercise would be appropriate and beneficial given Ms McLaughlin's disabilities, and Ms McLaughlin's own research and experience in relation to tai chi and alternative forms of exercise. The Agency has criticised the academic evidence, suggesting that the long-term effects of tai chi for older people with arthritis were unclear, that the evidence relates simply to the benefits of tai chi generally, and does not go to the issue of recoverytai chi in a seated position, the form of tai chi that she seeks funding for.
In the Tribunal's assessment, the evidentiary threshold postulated by the Agency is too high. Dr Flanagan's evidence is that this form of exercise would be appropriate and beneficial to Ms McLaughlin in light of the many limitations on physical activity imposed by her condition. This evidence satisfies me that the support would be likely to be subjectively effective and beneficial for her, pursuant to the first limb of s 34(1)(d). Of course, determining whether this is the case having regard to current good practice (the other limb of paragraph (d)), is no simple matter when there is a dearth of empirical evidence about the benefits of this form of exercise to people with the particular range of conditions Ms McLaughlin lives with.
Establishing what is current good practice with respect to the effect of seated tai chi on a middle-aged, obese, osteoarthritic woman would, in my assessment, be a task of almost insuperable difficulty, particularly if, as the Agency implies, such effects must be demonstrated in both the short and long-term, and that evidence not specific to recovery/seated tai chi is insufficient. An even greater order of difficulty is required if an applicant must demonstrate, in addition, that whatever benefits might be obtained from this form of tai chi cannot be replicated or bettered by some other form of exercise. There are, of course, hundreds of ways of exercising; it would be impossible for anyone to show that tai chi was the most cost-effective for individuals in Ms McLaughlin's position, even if that were true.
[164]
Ms McLaughlin sought funding for 40 singing lessons at approximately $40 per half hour lesson. She asserted that this support will further her social participation, community activity and wellbeing goals. In her closing submission, she stated that the support would help her achieve the following goals in her participant statement:
To have fruitful encounters with my current family and friends and widen my circle with new ones;
To contribute to my communities, engage with friends, and find new friends.
The lessons are required as she is presently unable to sing in tune. She told the Tribunal:
[165]
...I feel strongly that I have been prejudiced in the past due to my inability to sing in tune. I am anxious that I will become alienated from the community choir I want to join if I cannot sing in tune. My anxiety means that I only intend to join a community choir if I can have singing lessons. I submit that the benefits of me accessing singing lessons and thus being psychologically prepared to attend a community choir renders the lessons value for money.
[166]
During cross-examination Ms McLaughlin expanded on her reasons for wanting involvement with the community choir:
[167]
My argument is not about the disability relationship to the choir or to singing, it's about that the choir was a place, the choir that I previously belonged to, was a place where I had a tremendous community of interest. It was a - it's a choir about social justice issues and about people who really believe in political activism. So it was a place for me to make friends. ... So to me being part of a community choir is not about the chance to sing, it's about the chance to sing with a group of people and to sing material with which I have familiarity and, more importantly, connection.
[168]
In her closing submission she stated that it has been my experience that a community choir which is composed of people with similar interests and with a repertoire interesting to me, have not been comfortable with my lack of singing skills. This is why I wish to improve my skills. Although being able to join a community choir was listed as one of the goals in her participant statement, it became apparent in light of the evidence referred to above that participation in a choir was in fact better characterised as a vehicle for the goals of community engagement, fruitful encounters with current friends and widening her circle to include new friends.
Dr Flanagan gave evidence that participation in community activities, such as singing in a choir, would be beneficial to Ms McLaughlin. She referred to the benefits to a person's mental health of participation in this way:
[169]
...there's the literature on the benefits of singing and the well-being and it's one of those, when you're looking at depression, it's one of the things that can improve moods. But it might just be by being part of a group, because that usually improves mood. People are a herd animal on the whole.
[170]
Dr Flanagan also thought that singing would reduce her need for other supports later in life:
[171]
I think the more she goes out and the more she engages in the community, I'm hoping the healthier she will become and the less the need will be for her to require increasing levels of care.
[172]
Ms McLaughlin's representative, Ms Saunders, said the costs sought were comparable with other costs for singing lessons available in Canberra. Ms McLaughlin said there aren't any free ones. ... I'm not against free things, I am just not aware of anything free that is going to teach me how to sing in tune.
The Agency contested that the claimed support was reasonable and necessary. It argued, firstly, that while it may be the case that Ms McLaughlin seeks funding for singing lessons as an enabling mechanism for participation in a choir which will in turn combat her social isolation, the need for that enabling mechanism does not arise from or relate to her disability. Rather, it arises from the fact that she cannot sing in tune. Therefore, this is a cost that any Australian (without a disability) who cannot sing in tune will face if they wish to participate in a choir that requires participants to be able to sing in tune. In this sense, the singing lessons are not related to her disability and are merely part of the day-to-day cost of that particular recreational activity for anyone who cannot already sing in tune, disability or not.
The Agency considered that Dr Flanagan's evidence did not assist the Tribunal. It said that her support for singing lessons was based on an extrapolation from the experience of a different patient. Even if that extrapolation were relevant, it goes to the potentially therapeutic nature of singing which is not the basis on which the Applicant is seeking the singing lessons support.
Secondly, it argued that costs associated with taking part in a recreational activity such as singing is a day-to-day living cost, excluded from funding as a support by virtue of rule 5.1(d). Finally, it argued that there was no evidence as to the value-for-money equation singing lessons represented. The cost of the support ($1600) is reasonably significant, but the only evidence relating to alternatives was that of Ms Saunders suggesting that this cost was comparable with other costs for singing lessons in Canberra, and Ms McLaughlin's submission that the particular teacher she had identified was value for money in the market. This was, said the Agency, entirely insufficient evidence on which to be satisfied of the criterion in s 34(1)(c), which requires a decisionmaker to consider . In similar vein, the Tribunal could not be satisfied that there are no (rule 3.1(a)) or that (rule 3.1(e)).
[173]
The Agency submitted that singing lessons do not arise from or relate to her disability. These lessons are a cost that any Australian (without a disability) who cannot sing in tune would face if they wish to participate in a choir that requires participants to be able to sing in tune. They are merely part of the day-to-day cost of that particular recreational activity for anyone who cannot already sing in tune, disability or not.
The Tribunal accepts that singing lessons taken in order to participate in a choir are recreational in nature and a day-to-day cost which anybody wishing to so participate would incur. However, that does not mean in this case that they are not related to Ms McLaughlin's disability. The costs are related, albeit somewhat circuitously, to her disability through the following chain:
[174]
(a) Ms McLaughlin suffers from social isolation due to her disability;
[175]
(b) to overcome her social isolation, she has set the goal of widening her circle of friends/finding new friends;
[176]
(c) one of the vehicles she has nominated to find new friends is to participate in a community choir;
[177]
(d) to participate in the community choir, she considers that she needs to sing in key;
[178]
(e) because she cannot sing in key she must be taught to do so;
[179]
(f) to learn to sing in key she needs to undertake singing lessons.
[180]
In this context singing lessons can be seen to satisfy the criterion in s 34(1)(b), in that they would assist [Ms McLaughlin] to undertake activities so as to facilitate her social and economic participation. The pathway from funding the support to achieving social and economic participation need not be immediate and direct. The support need not create or actuate that social and economic participation; it need only assist the process.
In this regard I do not accept the Agency's characterisation of the evidence of Dr Flanagan. Although at one point she did extrapolate from the experience of another patient's use of singing lessons to reflect on the potential benefits to Ms McLaughlin, she also referred to the literature on the benefits of singing as offering insight into benefits likely to accrue to Ms McLaughlin. This process of inductive reasoning based on scientific evidence is perfectly sound.
Ms McLaughlin's claim for the support runs into difficulty, however, when measured against the provisions of the Supports Rules. Costs associated with participation in a recreational activity such as a choir (including, say, purchasing sheet music or a choir uniform or undertaking training prior to audition) are costs which would be borne by any citizen wishing to undertake this activity. Pursuant to rule 5.1(d) they will, therefore, not be funded as a support under the Act. The exception to this, provided by rule 5.2(a), is where the costs are incurred solely and directly as a result of [the participant's] disability support needs.
I accept that the need here for singing lessons arises as a result of Ms McLaughlin's disability support needs, specifically her need to overcome social isolation. However, I do not accept that the cost is incurred directly as a result of those needs. It would be perverse to describe the six-link chain connecting her disability with the support, referred to in paragraph [169] above, as "direct".
It would be fair, I think, to describe the support costs as being solely the result of her disability support needs; although she described the personal pleasure she had derived from previous involvement in a choir, I accept her contention that her only reason for involvement now is to develop new social networks and friendships. However, the word in rule 5.2(a) has work to do separately to . A support may, in principle, be wholly attributable to a disability need but have so attenuated a connection with that need that it cannot satisfy the requirement to be directly connected to the disability need. In my opinion, this is such a case.
[181]
Ms McLaughlin sought funding for a one-year subscription to an American brain exercise program - provided by a commercial provider called Brain HQ - at a cost of $150 per year to improve her cognitive functioning. She sought an additional $60 to be reimbursed for a previous subscription. She said:
[182]
The brain exercises are intended to improve my cognitive functioning, thus the support is related to an accepted condition, chronic fatigue syndrome.
[183]
Ms McLaughlin argued that this support would assist her in achieving her goals by increasing her concentration, clarity of thought and problem solving and met the requirements of s 34(1). She characterised the support as specifically addressing the cognitive limitations imposed by chronic fatigue syndrome, although she also mentioned that they would assist in addressing other impairments such as depression and anxiety.
She drew attention in her evidence to studies that indicate brain exercises make real and lasting improvements in brain function. However, she conceded in her closing submission that:
[184]
The evidence around the benefits of brain exercises is inconclusive for people with chronic fatigue syndrome, however I wish to trial it as an innovative support. I anticipate that the brain exercises will be beneficial because it will ensure I can continue to exercise and practice my cognitive skills.
[185]
In framing this submission she drew attention to s 4 which describes, as one of the general principles guiding actions under the Act:
[186]
Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability...
(Emphasis added.)
[187]
When it was put to her under cross examination that there was no evidence that brain exercises were effective in addressing what she called fluctuating capacity - that is, cognitive impairment - she said:
[188]
You're quite right and furthermore, I approached - I wrote to the Americans and asked them that point and they had not considered it at that time, I haven't repeated the request. However, the evidence that it generally speaking, improves cognition, I have got some new evidence to that effect. Now, there is a fair bit of this sort of brain training stuff around. Some of it's cheaper and none of it is as well evidenced as BrainHQ, so I argue strongly that it is effective in improving function. It is my belief that if I can - it's like moving the baseline up. So, whether or not they intend or they recognise that it does make a difference for people like me, who suffer from intermittent brain fog, the reality is that that makes sense to me. It's a working hypothesis on my part and I therefore seek that it be monitored so that we can see whether I'm right and again, it's an innovative request. I mean, a request for an innovative support.
[189]
When asked why she did not use free online brain exercises, she said:
[190]
...they are not as useful and I would prefer - I don't believe that they would be adequately useful compared to these and again, remember what I said before, I'm all in the business of using free stuff, but there's a time when free stuff is not good enough and this, I think, is one of them...
But it's really about whether you think, whether the NDIA thinks that I'm good at picking what could be useful and supporting me to find out.
[191]
The Agency mounted several arguments as to why the support should not be funded. The first was that the evidence did not demonstrate that Ms McLaughlin's cognitive impairment was related to her chronic fatigue syndrome. The second was that the exercises were not effective and beneficial as required by s 34(1)(d). In this respect it referred to the evidence of Dr Flanagan during examination in chief:
[192]
[Dr Flanagan] And the other thing is I really don't know and I have seen no evidence that attending those programs actually improves outcomes. Like, I really don't know enough about that, because I - I mean, otherwise, we wouldn't see all the problems we see if we could all just do a program. So, I'm not sure that I could really comment on that.
And that's not necessarily the point I wanted to raise with you anyway, so that's okay?---I think your thinking would be better if you had less stress and anxiety, I can say that and I think that would improve outcomes...
And the exact - I think that covers what I was trying to get at. There's another point; so you haven't got any - you don't have any evidence that these types of programs can deal with this question, but at least that's what you said before, isn't it?---Yes. I don't know. I haven't seen any evidence that they cover. I'm sure there's - you know, you'd have to look up the scientific evidence and see if there's anything. And so, I know that the companies themselves play it up, but I don't think that means much.
[193]
The NDIA's third argument was that the Tribunal could not be confident that the brain exercises represented value for money as required by s 34(1)(c). It referred to Ms McLaughlin's guess that the paid exercises were going to be better for her than free, online alternatives.
[194]
The Agency's contention that the evidence did not demonstrate Ms McLaughlin's cognitive impairment was related to her chronic fatigue syndrome is puzzling. This is because the Agency has argued - compellingly, in paragraphs set out above - that a support, to be funded, does not need to relate to the impairments which formed the basis for a participant's entry into the Scheme. Irrespective of whether there is a causal or biological relationship between chronic fatigue syndrome and cognitive impairment, the evidence is clear (including from Dr Flanagan) that Ms McLaughlin suffers from cognitive impairment, and such a condition would constitute the kind of impairment which could give rise to supports. A report from Dr Mary Carse, a clinical psychologist who saw Ms McLaughlin in August 2018, is to similar effect. I heard nothing from the Agency to suggest it disputes that she suffers from cognitive impairment. As such, its relationship to chronic fatigue syndrome is irrelevant.
The Agency is on stronger ground when it argues that there is insufficient evidence that the brain exercises will be effective and beneficial to Ms McLaughlin. While the evidence offered by her of generalised benefits to, for instance, older people may be accepted, the evidence of benefits in respect of her chronic fatigue syndrome, cognitive impairment or anxiety and depression - the impairments she nominated as relating to this support - was thin to the point of nonexistence. Dr Flanagan was careful to avoid giving credence to such claims. Indeed, Ms McLaughlin's own submission to the hearing appeared to be that the benefit of brain exercises in addressing fluctuating capacity was no more than a working hypothesis. In these circumstances the support cannot be said to meet the test in s 34(1)(d).
Ms McLaughlin submitted that the support could be funded as the trial of an innovative support. The Tribunal has no power to fund a support on this basis. If it sets aside the NDIA's refusal to fund this support, it must do so because the support meets the terms of the Act. Section 34 requires that the support, to be funded, must be at least likely to be effective and beneficial; a support which "may" be effective and beneficial does not reach this threshold. The aspirational expressions in s 4, dealing with a preference for innovation, do not override the specific criteria in s 34.
[195]
Ms McLaughlin sought funding to attend festivals, concerts and other events at up to $1000 per year. She nominated, in particular, writing festivals and the National Folk Festival held annually in Canberra as the kind of events for which funding was sought. She argued that as she is at risk of being socially isolated, and would like to use this funding to partake in activities such as writing, editing and other interests in order to meet like-minded people. She contended that this support would assist her in achieving her goals of having fruitful encounters with family and friends, of contributing to my communities and of finding new friends.
In her closing submissions she said:
[196]
In line with Dr Flanagan's recommendations, the support will increase my mobility and reduce my social isolation, which will improve my mental and physical wellbeing. This is because "the impact of isolation and loneliness on health and mortality are of the same order of magnitude as such risk factors as high blood pressure, obesity, and smoking." Reducing social isolation will thus reduce these risk factors and have positive flow on effects for my mental and physical wellbeing. This will be of long-term benefit to me and thus the funding is value for money...
It is also not reasonable that I attend only free, community events, as there is often not a lot of opportunity for socialising. When there is, my experience is usually different to someone without a disability due to stigma. I also find it hard to make friends at these events, due to anxiety and depression.
[Reference omitted.]
[197]
The Agency contended that the claimed support does not meet the general criteria in rules 5.1(b) and 5.1(d). It described attendance at community events as being in the nature of recreational activities, and referred to the provisions of the Operational Guideline (at Part 10) in this context. The Operational Guideline provides, inter alia:
[198]
Before including a recreation support in a participant's plan, the NDIA must be satisfied that all options and opportunities available to the participant in their local community have been explored.
...
In relation to recreation supports, the NDIA must consider, amongst other matters, whether the support relates to a participant's disability (see what are the general criteria for supports?). Recreation activities are likely to have costs associated with them that are usual for all people, for example registration or membership fees.
The NDIA will fund recreation supports that are related to the participant's disability, not expenses that are ordinarily funded from a person's income. For example, the NDIA may fund a support worker to assist a participant to prepare and participate in a recreational activity.
If a participant requires any modifications to the usual equipment required to participate in their chosen recreational activity, the NDIS may fund the reasonable and necessary costs associated with equipment (over and above the usual cost for the equipment) or the cost of modifying the equipment.
For example, if a participant who engages in horse riding requires a modified or specialised saddle as a result of their disability, the additional cost of the saddle may be an appropriate support for the NDIS to fund. Note, only the additional cost would be funded (i.e. the difference between the reasonable cost of the modified or specialised saddle and a standard saddle).
[199]
The NDIA submitted that, when it comes to recreational supports, there is a clear policy underpinning the Operational Guidelines - supported by the general criteria for supports in rules 5.1(b) and 5.1(d) - that the NDIS is concerned about funding the "gap", that is, the things that are necessary to enable the participant with a disability to participate in the same way that Australians without a disability can. It illustrated this point by observing that the Operational Guidelines refer to funding the modification to the saddle rather than the entire saddle, or funding the provision of a support worker to help the participant to undertake the activity. These are requirements that ordinary Australians (without a disability) do not require; they relate to the disability and they are not the day-to-day costs associated with the activity applicable to everyone.
Not only, it submitted, is the evidence about the support claimed here by Ms McLaughlin scant but there is nothing to indicate that the specific funding she seeks in relation to it is for the purpose of enabling her as a person with a disability to access the community activities in the same way as other Australians (without a disability). The general evidence was that the funding is sought because the events she has in mind are paid events. Therefore, the funding is sought merely to pay the costs that any person - including those without a disability - are required to pay to participate. The fact that her disability causes her to be socially isolated does not then mean that the NDIS will fund any social activity because that overcomes the social isolation. Other Australians (without a disability) face the same barrier to participation in these events as she faces. For the support to be more than this day-to-day cost and shown to be related to Ms McLaughlin's disability, it must enable the participation by addressing the need that she has as a result of her disability which other Australians (without a disability) do not have. To adopt the riding analogy from the Operational Guidelines, the funding needs to relate to the modification to the saddle, rather than the whole of the saddle itself. The cost of participating in the writing and music festivals is not the modification to the saddle, it is the saddle itself.
The Agency contended in addition that there has also been no evidence to positively satisfy the value for money criterion in s 34(1)(c). When it was pointed out to Ms McLaughlin that there is a vast array of activities available for free in the community in which she could participate, her response was that but that she has a .
[200]
As with the other supports previously considered, the Tribunal accepts the argument that the support for funding to attend community events is related to her disability. In the context of significant social isolation due to her impairments, a support which facilitates accessing community activities, meeting new people and providing avenues for new friendships does have a relationship with her disability, and would satisfy rule 5.1(b).
I am not persuaded, however, that the proposed support represents value for money pursuant to s 34(1)(c). This is because there is a large array of free events available in the Canberra community which would appear to meet the criteria of allowing Ms McLaughlin to meet new people in settings relevant to her own areas of interest.
The Tribunal was able to identify, in relation to a single, randomly-selected week in March 2021, no less than 16 events in Canberra, all of which were (a) free, or attracted no more than a gold coin donation for entry, (b) were wheelchair accessible and (c) in areas of Ms McLaughlin's professed interest, including writing and literature, music, politics and current affairs. In the area of writing and literature alone, it identified several book launches and meet-the-author events, as well as meetings of clubs such as the Canberra Book Club, the Canberra English Literature Reading Club and the Popular Fiction Book Club. It noted that many meetings, workshops and lectures that would normally have taken place in venues such as ACT libraries and Parliament House had been postponed or cancelled because of the coronavirus pandemic, that is, in less extraordinary times there would generally be a much greater number of suitable events on offer. Taking into account Ms McLaughlin's mobility problems and her chronic fatigue condition, presumably limiting the number of events she could attend in any given week, this represents a program of activity which would more than amply satisfy her ambition for community involvement.
In addition, the Tribunal takes official notice that many community-based organisations hold regular meetings, are run by volunteer committees and create other opportunities for participation by volunteers - subcommittees, working bees, special projects, preparation for special events, et cetera. It is the Tribunal's experience that such organisations are frequently short of volunteers. It would be very surprising if Ms McLaughlin were unable to find roles in such organisations that would interest her and which would bring her into contact with like-minded people. Additionally, she gave evidence that she belongs to a political party. Again, the Tribunal is aware that political parties have an almost insatiable need for volunteers in a large variety of roles, including service on policy committees, assisting in the offices of local MPs and secretarial roles to committees and branches/sub-branches. With respect, it beggars belief that Ms McLaughlin would not be able to find roles in this plethora of opportunities which would both accommodate her physical and cognitive limitations and assist her to overcome social isolation.
[201]
Ms McLaughlin seeks insurance for assistive technology she uses from day-to-day, such as a motorised scooter and a forearm walker. She told the Tribunal:
[202]
...there are items which in fact I have again, from being insured when they failed, were a scooter and a walker both of which you have heard during these proceedings and so I had no provision to take it back to the agency for them to reconsider it and the bottom line is that if I... had not replaced those two items immediately through insurance, I would not have been able to meet those goals I mentioned above, so it was very important and it seems to me that the NDIA escapes having to pay for them and paying for the insurance is a small price to pay for that need that was there.
[203]
In her closing submissions she identified the goals which this support was designed to assist as the following goals: My home meets my financial, health and disability needs and is welcoming to others and To continue to receive transport support and support for aids and some household tasks.
Her submissions continued:
[204]
...my requests in late 2019 were ignored and I've now been advised that no new AT can be considered during an AAT appeal. So, it is unreasonable to withhold extra insurance costs when there is no basis for it and no alternative solution during a AAT appeal...
Insurance for AT ensured that I could replace some of my mobility aids (mobility aid and walker). The insurance meant that I could continue to ensure that my home meets my "health and disability needs" and to access activities outside my home including shopping. Thus, the support assisted me to pursue my goals.
There is a clear and direct link between the goal for 'to continue to receive ...support for aids' and the request for funding for 'insurance for assistive technology.' This is because assistive technology is a type of 'aid'. Insurance is support for the maintenance of aids. Thus, insurance is related to my goal to receive support for aids, and there is a clear and direct link between the goal and the request...
I submit that the provision of insurance is likely to reduce the cost of funding for supports for me long-term (r3.1(c)). This is because if the technology becomes unusable, I may be able to use the insurance to purchase a replacement. This would mean that the NDIS would not have to spend money on a replacement support.
Secondly, I submit that it will increase my independence (r3.1(f)). This is because I will not have to rely on the NDIS to replace the technology. This process is often very slow, and by equipping me with the resources to replace the technology, the insurance will support my independence. Thus, the benefits render the insurance value for money.
[205]
Ms McLaughlin told the Tribunal that the cost of the support would be $1,133.88.
The NDIA countered that the support does not satisfy the general criteria for supports in rules 5.1(b) and 5.2(d) of the Rules nor does it satisfy the value for money criterion in s 34(1)(c). It observed that Part 10.3 of the Operational Guideline - Deciding to include supports in a participant's plan explains that before any support is added to a plan, the Agency must be satisfied that the support will assist the participant to pursue the goals, objectives and aspirations of the participant. That requirement will be satisfied where the NDIA is able to identify a clear and direct link between the support to be funded, or provided, and one or more of the goals outlined in the participant's statement of goals and aspirations. The difficulty presented by insurance costs for AT in relation to this criterion is that insurance itself does not facilitate the pursuit of a participant's goals; rather, the assistive technology itself facilitates the participant's goals (or some of them). Insurance merely represents one method by which the assistive technology might be replaced or paid for at a potential future point in time.
It further contended that - as an important point of principle - it is for the Agency to manage how replacement costs are to be administered across the scheme (since it is the funder of the support), not the participant. There is a myriad of ways in which it may choose to approach that issue, based on its own actuarial advice. Certainly, it would seem that if the Agency were to fund insurance for all assistive technology supports, the financial impact would be significant and potentially threaten the financial viability of the Scheme contrary to the objective in s 3(3)(b) of the Act.
The NDIA also contended that there is considerable uncertainty as to whether insurance would ultimately be effective and beneficial to Ms McLaughlin. 10.5 of the Operational Guideline refers to the fact that a support will not represent value for money if the NDIA cannot be confident of the associated benefits which are likely to be achieved for the participant, especially where a reliable means of measuring any benefit is lacking. Whether or not a participant needs to call upon insurance is unknown. And even if the participant does need to do so, no evidence has been proffered by Ms McLaughlin as to why an insurance approach would prove to be a more beneficial one than the NDIA simply paying for those items of AT to be repurchased.
[206]
In considering the argument for this support, it is convenient at the outset to address the Agency's contention that it is its responsibility, as the funder of the support, to manage how replacement costs are to be administered. Although that contention has the merit of being rational and administratively convenient, it is far from apparent that the principle has been incorporated into the provisions of ss 33 and 34, or the rules made thereunder. Just as I was obliged to reject Ms McLaughlin's argument (in relation to brain exercises) that the broader principle of a preference for innovation should override the specific criteria in ss 33 and 34, so too I must reject the Agency's contention that some broader administrative principle trumps those provisions. Equally, I must reject the contention that funding insurance as a support would potentially threaten the financial viability of the Scheme. Many corporations and institutions (though admittedly, not government departments or agencies as a rule) choose to insure to meet the cost of lost or broken assets. They do so, presumably, because it is cost-effective. It follows that the bald assertion that this approach would not be cost-effective in the case of the NDIA must, without supporting evidence, be put aside.
I note Ms McLaughlin's assertion that she required insurance in order to be able to replace non-functional AT because the Agency had declined to do so while her proceedings were before the Tribunal. I further note that the provision or replacement of any AT for Ms McLaughlin was not before the Tribunal in these proceedings. Accordingly, I view with some concern the claim that Ms McLaughlin has been denied replacement AT on account of these proceedings. The Agency did not comment on this claim and, in any case, the Tribunal has no supervisory jurisdiction over the conduct of the Agency, but it nonetheless views this claim of Ms McLaughlin with concern. The Tribunal would urge the Agency CEO to satisfy himself that Ms McLaughlin's legitimate requirements for assistive technology have been, and are being, met according to the provisions of the Act and its subordinate legislation.
Nonetheless, it would appear that the issue Ms McLaughlin raised at the hearing arose in 2019, once the proceedings in the Tribunal were underway. What is before the Tribunal presently is, as already mentioned, her 2017 plan. Against this background, what the Tribunal must consider is the argument that insurance for AT would meet the requirements of the Act in the general context of items wearing out or being lost or damaged, not in the context of their replacement being denied in the course of litigation.
[207]
The Tribunal has found that Ms McLaughlin satisfies the statutory test, in principle at least, in respect of two claimed supports: transport support and support for consultation with an exercise physiologist for the purposes of preparing her for participation in tai chi classes.
In respect of the latter, the Tribunal remits the reviewable decision to the Agency to consider whatever evidence Ms McLaughlin chooses to submit to it regarding the cost of a consultation with an exercise physiologist. It is still reasonable to fund this support notwithstanding that it relates to her 2017 plan, on the assumption that she still wishes to undertake tai chi classes and thus needs professional preparation to do so. It is, of course, a one-off payment.
The position in relation to a transport support is more complicated. The Tribunal's decision relates to her 2017 plan, which ran from 26 June 2017 to 26 June 2018. My decision is that she was entitled to the additional costs, if any, she incurred solely and directly as a result of operating a modified vehicle, as opposed to operating a standard vehicle, during the period of this plan. These costs may include higher registration costs because a larger than usual vehicle was required, and the extra cost of petrol incurred because the vehicle was heavier than an ordinary vehicle. Pursuant to the Operational Guidelines, however, these costs will not include the higher costs of purchasing a modified vehicle.
However, the evidence taken at the hearing was not clear as to whether she did in fact operate a modified vehicle during the life of the 2017 plan. Even if the vehicle she operated was a modified vehicle, her evidence was that she took it off the road (because she could no longer afford to operate it) in August 2017. Some of the costs she claims may only relate therefore to the period June-August 2017. In addition, it may be the case that she is unable to produce evidence of the higher costs she incurred during that period. If she is entitled to reimbursement for costs incurred in relation to this support it will, of course, be a one-off payment.
This decision has no relevance to her present plan as she does not presently operate a motor vehicle. One supposes that the real value of the decision with respect to her entitlement to a transport support relates to any future plans in which she seeks to recover costs in relation to operating a modified motor vehicle. On the basis of this decision one would expect the Agency to fund those costs.
[208]
I certify that the preceding 229 (two-hundred and twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries, AO
National Disability Insurance Scheme (Supports for Participants) Rules 2013
NDIS Act 2013
Cases Cited (3)
(2016) 259 CLR 164
(2011) 244 CLR 508
(1931) 46 CLR 73
AI Analysis
Outcomemixed
Disposition:
The Tribunal set aside the reviewable decision dated 29 March 2018 and substituted a determination that Ms McLaughlin was entitled under s 33(2) to the supports in her 27 June 2017 statement of participant supports, additional costs solely and directly related to operating a disability-modified motor vehicle above the costs of a standard vehicle, and a consultation with an exercise physiologist to prepare her for tai chi. It remitted consideration of any claim for those supports to the Agency. The other four disputed support categories were not approved.
In her original application dated 16 April 2018 Ms McLaughlin sought review of the Agency's decision to refuse 14 separate supports. However, as the proceedings progressed, agreement was reached between the parties with respect to 8 of these supports. This decision deals with the remaining six individual supports which Ms McLaughlin has sought as part of her participant's plan.
These six individual supports are:
(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
(12) The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.
(13) The role of advocacy in representing the interests of people with disability is to be acknowledged and respected, recognising that advocacy supports people with disability by:
(a) promoting their independence and social and economic participation; and
(b) promoting choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(c) maximising independent lifestyles of people with disability and their full inclusion in the community.
(14) People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme.
(15) Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.
(16) Positive personal and social development of people with disability, including children and young people, is to be promoted.
(17) It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:
(a) the progressive implementation of the National Disability Insurance Scheme; and
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme.
(f) have regard to the operation and effectiveness of any previous plans of the participant.
However, in Holland and National Disability Insurance Agency[2021] AATA 92 Deputy President Constance took a different view, deciding that a fresh application for review was not necessary in respect of each new iteration of a participant's plan, where the same supports were essentially under review. He considered that such bureaucratic "red tape" is not mandated by the legislation.
It is unnecessary for the Tribunal as presently constituted to enter into this debate, since the issue of Ms McLaughlin being entitled to higher levels of supports across several plans does not arise. For the reasons provided below, the Tribunal finds that there are (potentially) two supports to which she was entitled in respect of her 2017 plan which the CEO had not approved. In each case they should be dealt with as one-off payments, not recurring payments, as is discussed in the concluding part of this decision.
Jemena Asset Management Pty Ltd v Coinvest Limited
In this regard, it was observed by the Full Federal Court in WRMF at [138] that the Act in its structure,...does more than 'ordinary' legislation by incorporating objects and purposes. It incorporates a number of values, which are integral to the legislative scheme. As such, because of its particular features, the need to examine particular provisions in the wider context of the scheme as a whole is especially important.
In the Agency's view the term disability in rule 5.1(b) is not limited to the particular impairments which qualified a person for access to the NDIS under the disability requirements in s 24. It is notable that the term disability is used widely in the Act, and yet is not expressly defined. The Oxford English Dictionary defines disability as:
meets the access criteria
Also significant is the fact that access to the NDIS might occur via s 21(2) rather than s 21(1), in which case the person might be granted access to the NDIS not by satisfying the age, residence and disability requirements but solely because the person is a participant in a prescribed program (s 21(2)(b)(iii)). In such a case, it would not be possible to apply the principle that for a support to be funded under the participant's plan it must relate to the impairments for which the participant was granted access to the NDIS via s 24, because there was satisfaction of that s 24 test in the first place.
That the term disability should be construed according to the broad approach is reinforced by the context of the surrounding provisions of the Act, including Chapter 2 which is headed Assistance for people with disability and others. The use of the term people with disability in the heading of Chapter 2 rather than the term participant as is used in the heading of Chapter 3 indicates that people with disability is a distinct concept from participants. This is reflected in the first two sections of Chapter 2, ss 13 and 14, which provide (underlined emphasis added):
The NDIS Act does not provide for a residual discretion to refuse approval of participant supports, or indeed to refuse to fund general supports or reasonable and necessary supports, once the CEO has had regard to the matters in s. 33(5) and is satisfied of the matters in s. 34(1).
163. Aside from the contention at [13], the Agency's final written submissions did not seek to contradict the respondent's submissions which we have extracted.
164. During the Agency's final oral submissions to the Tribunal, the Tribunal suggested that the inclusion of para (c) in s 34(1) 'almost suggests there's a discretion in there, which isn't there'. The Agency's legal representative responded:
Yes, sir, but it's not really, in any sense, a true discretion. The decision-maker must be satisfied of each of the elements of the section ...
165. The Agency's legal representative then made the following submission:
And I think my learned friend and I are somewhat ad idem on the role of the question of financial sustainability. My learned friend, in his written outlines - it's not a, sort of, final limb of section 34 that allows you to just, 'Well, I'm satisfied of all the other matters, but I'm not satisfied about financial sustainability, so I therefore have this residual discretion.' I accept that that's his right in his interpretation.
166. That is all that was said about the so-called residual discretion. In those circumstances it is to be expected that the Tribunal did not refer to any issue of this kind arising for its determination on the review.
167. Therefore, the Agency now invites this Court to find error in the Tribunal's decision on a matter that, first, it did not put to it at all, and second, it in fact disavowed. We see no basis on which it should be permitted to put such an argument. It may be a significant question of statutory construction, and a somewhat substantial revision to the present conceptions of this legislative scheme, to imply such a discretion into the text of s 33(2), which appears to be where the Agency contends the implied discretion is located. Consideration of that matter should await a case where it has been properly raised before the Tribunal, so that the issue is more than hypothetical.
The restrictive nature of s 34(1) is illustrated with the following example. Let us suppose that a participant stipulated in his statement of goals and aspirations that he wished to become an astronaut, and nominated as a support for this goal an intensive program of training costing $200,000.[4] It is not immediately apparent which, if any, of the criteria in s 34(1) this support would not satisfy. The training program would certainly assist him to pursue his goals and facilitate his social and economic participation. It would probably represent value for money, in that only a program of this intensity and expense would be capable of achieving his ambitious goal. The support itself would almost certainly be effective and beneficial to him, even if he failed to achieve his goal, and no informal networks are likely to be available to him as an alternative source of funding.
It would nonetheless appear incongruous that supports should be funded by the general community where they are defined purely and narrowly in terms of benefits to the participant in the Scheme. The better view, in the Tribunal's opinion, is that the words reasonable and necessary in s 33(2) have work to do, by way of conferring a residual discretion on the CEO to determine whether a claimed support is appropriate against criteria broader than those referred to in s 34.
A further, practical difficulty may arise if one adopts the view that s 34 wholly encapsulates the definition of reasonable and necessary, in relation to supports. The difficulty is that, on this interpretation, substantial parts of the Supports Rules may be regarded as invalid.
In Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634, Brennan J (as he then was) postulated these rules with respect to the application of ministerial policy made to provide consistency in the interpretation of statutory provisions (at page 640 and 645):
(Citations omitted, emphasis added.)
for the purposes of sections 33 and 34 of the Act
reasonable and necessary
reasonable
Mortimer J in McGarrigle v National Disability Insurance Agency[2017] FCA 308 at [43] observed that the Supports Rules are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. On this view s 35(1), by which the Supports Rules are made, would be, in effect, a Henry VIII clause. Australian courts have expressed anxiety about such clauses, even while acknowledging that they are within the legislative power of the Commonwealth to enact.[5] For example, Dixon J in Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan[1931] HCA 34; (1931) 46 CLR 73 made these observations:
with the hoist in it
Ms McLaughlin told the Tribunal she wanted to buy a replacement vehicle but that she only had a small amount of capital to that end, and that it will be a long time, if ever, before I will again be able to drive my own suitable vehicle. She gave evidence, however, that she had come to the conclusion that driving myself was a grossly superior solution. She testified that I have to use private transport because of my disabilities.
The specifics of what transport support she sought in these proceedings were difficult to pin down. In her submissions prior to the hearing she said that she was seeking Level 3 funding for her 2017 plan, pursuant to the Agency's Operational Guidelines. Under the heading Transport and considerations relating to adults, these guidelines indicate that a participant will generally be able to access funding for transport assistance if they cannot use public transport. They then set out three levels of funding support, with the highest, Level 3, offering a participant $3,456 per year where they are currently working, looking for work, or studying at least 15 hours per week. The Tribunal understands it to be common ground between the parties that, if Ms McLaughlin was eligible for transport support in her 2017 plan under the guidelines, support at Level 3 was appropriate.
It was also common ground that, in order to establish that eligibility, the Tribunal would need to be satisfied that it was reasonable and necessary for Ms McLaughlin to receive funding to run a modified private vehicle, such funding to include the cost of operating and maintaining that vehicle, including servicing, fuel, insurance and registration. Much of the hearing in May 2020 centred on the question of whether she is eligible to be funded for the use of a private vehicle to travel independently.
However, in closing submissions received following the conclusion of the hearing, Ms McLaughlin indicated - apparently on account of being unable to replace her now defunct motor vehicle - that she required the purchase of an electric mobility scooter, for use in wheelchair taxis. She sought that the Tribunal direct the Agency to fund and consider an OT assessment for an electric mobility scooter. In a further submission she appeared to describe the form of transport she wanted assessed as an electric wheelchair.
It is not clear what power the Tribunal might be able to exercise to order the NDIA to fund or conduct an OT assessment. In any case, this issue was not before the Tribunal during the hearing and it would be unfair to recast the parameters of the issue in this way with respect to transport support at this late stage. Accordingly, I consider the issue before the Tribunal here is whether Ms McLaughlin was eligible to be funded for the use of a private vehicle to travel independently during the currency of her 2017 plan. She may be eligible for vehicle modification supports in the future, as she has been previously, and she may be eligible for costs associated with private transport, including community transport. However, those issues are not presently before the Tribunal.
The NDIA took the position that the transport support sought is not reasonable and necessary because:
It is therefore necessary to satisfy both rule 7.21 and not fall within the exclusion in rule 7.22 in order to be a support that the NDIS will fund or provide. In this regard, the Agency argued that the decision in Ewin is wrong insofar as it suggests that a support which does not meet rule 7.21 but does not fall within 7.22 might still be a reasonable and necessary support if it otherwise meets the criteria in s 34.
With respect to the issue of day-to-day living costs in rule 5, it submitted that Ms McLaughlin's vehicle maintenance costs are the day-to-day costs of running a vehicle and would be incurred by her even if she did not have a disability. They are therefore not related to her disability as described in rule 5.1(b) and are day-to-day living costs under rule 5.1(d). They are therefore not eligible to be funded. This interpretation is reinforced by the following provision in the Operational Guidelines:
This schema is reflected in Schedule 1 to the Supports Rules, where, under each heading (e.g. Employment, Transport, Justice), the rules set out in turn what is most appropriately funded by the Scheme and then what will not be funded by the Scheme. What, in each case, will not be funded by the Scheme broadly references the other specified mechanisms in s 34(1)(f). The choice, again, is binary. For this reason, the Tribunal prefers the Agency's contention on the interpretation of rule 7.21/7.22 in Ewin; that is, the decision is wrong insofar as it suggests that a support which does not meet rule 7.21 but does not fall within 7.22 might still be a reasonable and necessary support if it otherwise meets the criteria in s 34.
The cost of operating a car is a cost borne by many Australians. It is obviously not a cost that would be appropriately funded or provided to a person with disabilities through general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered as part of a universal service obligation or pursuant to a discrimination law. It follows that, if the cost is one that meets the various criteria in s 34(1)(a)-(e), and otherwise satisfies the test of a reasonable and necessary support found in the Supports Rules, then it may be funded as a support.
Rule 7.21 of the Supports Rules says that the NDIS will be responsible for supports that enable a participant's independent travel. The Tribunal accepts the Agency's submission that this does not oblige it to fund the ordinary costs of that travel per se. Funding that is substantially short of the total cost of purchasing (or hiring) and operating a motor vehicle may yet enable travel in that vehicle.
Ms McLaughlin submits that she would not own and operate a motor vehicle but for the fact that she is disabled. She says she would use public transport and taxis instead. The Tribunal does not accept that submission. It is hypothetical in nature: it describes what she imagines she is likely to do if she were free of the disabilities she has lived with for many years. It also seems quite improbable. The vast majority of Australian households include at least one car.[6] That she would not be one of these households would seem even more improbable when one considers that Ms McLaughlin (a) is single, (b) does not have family or friends who provide regular transport assistance and (c) lives in Canberra, a very car-centric city. In Ewin, the Tribunal considered it unlikely that a person would use public transport to do weekly grocery shopping even if a person had a commitment to using public transport as a general rule (at [170]). It took this position notwithstanding Mr Ewin's evidence that he would not use a car for this purpose if he were not disabled.
Accordingly, the Tribunal regards the cost of operating a motor vehicle as a day-to-day living cost that Ms McLaughlin would incur regardless of her disability. Those costs therefore fall, prima facie, under rule 5.1(d), as costs that would not be funded under the Scheme: see Blattman and National Disability Insurance Agency[2019] AATA 184 at [34]. The Tribunal must now determine whether the costs are caught by the carve-out provision in rule 5.2(a).
On the basis that she would incur the cost of running a motor vehicle irrespective of her disability, those costs are not additional living costs incurred solely and directly as a result of her disability support needs. However, Ms McLaughlin has also claimed that the cost of operating her vehicle is greater on account of having to have a larger vehicle to accommodate a hoist and scooter, and consequently needing more fuel to operate it. In principle, those additional costs must be regarded as falling within the carve-out in rule 5.2(a). They are costs solely and directly arising from her disability support needs. They are not costs which able-bodied Australians driving motor vehicles would be expected to incur.
What those additional costs, if any, might be were not evident at the close of submissions. Accordingly, the Tribunal will remit this matter to the NDIA for consideration if Ms McLaughlin is able to produce suitable evidence of those costs.
Finally, I deal with the issue of the application of the "no disadvantage" principle. In the Operational Guidelines at 10.9 the following policy is described:
However, any support previously received can only be added to a statement of participant supports under the NDIS where the NDIA is satisfied that each specific criteria [sic] for including any general or reasonable and necessary support in a participant's plan is met.
[Underlining emphasis added.]
The Tribunal considers that the task imposed on a decisionmaker by the criteria in the Act and the rules must be calibrated against the cost of the support being sought. There are two elements of Ms McLaughlin's claim for tai chi: the cost of attending tai chi classes and the cost of instruction by an exercise physiologist to prepare her for those classes. For reasons explained below, the Tribunal considers that the former does not meet the relevant statutory test. The latter is likely to cost in the order of $100-200. To require Ms McLaughlin to produce extensive academic research, and to undertake hundreds of hours of personal research, for the sake of a $200, one-off claim does not seem consistent with the beneficial character of the Scheme, particularly given that meeting such a claim in Ms McLaughlin's sui generis circumstances will have very little precedential value.
In this context the Tribunal is prepared to accept the evidence of Ms McLaughlin that through a process of trial and error she has established that tai chi is one of the few forms of exercise she is able to undertake. Again, given the dearth of available evidence on what constitutes current good practice in this apparently arcane corner of science, it is prepared to accept her evidence and that of Dr Flanagan to the effect that tai chi is beneficial and effective taking into account her range of morbidities. These findings are buttressed by the academic evidence presented by her which shows general health benefits from tai chi, and specific benefits to those suffering from arthritis and mental illness. The Tribunal is also satisfied with respect to the lack of more cost effective alternatives, notwithstanding that Ms McLaughlin has not set out in detail the research she has conducted to rule out any comparable exercise activities or why she concluded that the relatively cheap tai chi she found did not address her particular needs. This approach is sustained by the terms of rule 3.2, which requires the CEO, in assessing what is effective and beneficial for a participant having regard to current good practice, to consider the evidence which is constituted by the lived experience of the participant. There is, of course, no evidence from the NDIA contradicting or negating any of that lived experience evidence.
The Tribunal rejects the Agency's argument that a support relating to tai chi is not one related to her disability (rule 5.1(b)). This form of exercise is in issue precisely because other forms cannot be undertaken on account of conditions such as obesity and osteoarthritis, as Dr Flanagan testified. The Agency also drew attention to contentions by Ms McLaughlin at the hearing that this support was in the nature of an innovation or trial, and it suggested that therefore the support had not been shown to be consistent with current good practice. However, notwithstanding her use of that language, her use of tai chi does not seem to be merely a trial, since she gave evidence of having used it over several months and of having obtained benefits from it, a conclusion with which Dr Flanagan agreed.
Overall, the Tribunal is able to make the finding that a support in relation to tai chi may constitute a support which it is reasonable and necessary for Ms McLaughlin to obtain.
As previously mentioned, Ms McLaughlin seeks the cost of attending tai chi classes and the cost of instruction by an exercise physiologist to prepare her for those classes. The Agency argues that neither of these proposed supports meet the statutory test. The Tribunal accepts the argument of the Agency with respect to the cost of attending tai chi classes. The cost of exercise is a day-to-day living expense borne by a substantial number of Australians. While some exercise may be undertaken at no cost (say, jogging and bushwalking) many other participatory forms of exercise necessarily entail payment to a provider or venue (say, Pilates, boot camps, swimming and tennis). Such costs fall within the term day-to-day living costs as used in rule 5.1(d). As such, it is excluded as a reasonable and necessary support. The exception to this principle contained in rule 5.2 - that living costs incurred solely and directly as a result of a participant's disability support needs may be funded - does not, in the Tribunal's view, apply here. It is reasonable to expect that, but for her disability, Ms McLaughlin would engage in some form of exercise, and the cost of participation in a class or group would be at her own expense. There is therefore no additional cost incurred directly and solely because of her disability.
Ms McLaughlin submitted that a generic tai chi class would not cater to her special needs, and that those needs required that she could only attend a modified class, catering to people with disabilities or mobility issues of the kind she lives with. While that was her view, it was not one shared by Dr Flanagan. Dr Flanagan told the Tribunal that you'd need a program modified for you [i.e. Ms McLaughlin] that you could then go on later and do a normal class once you'd had someone go through the original exercises with you. Her opinion was that you need someone to look and discuss what's appropriate for your condition, but that, once this had occurred, you could probably move through[to a generic class]. Without evidence, beyond her own opinion, that she requires a modified class in order to undertake this activity, this aspect of her claim must fail.
Ms McLaughlin referred to the decision in King and National Disability Insurance Agency[2017] AATA 643 as support for the proposition that the ordinary costs of exercise - in that case, a gym membership - were covered by the Supports Rules. However, in that case the Agency accepted responsibility for the applicant's gym membership, and the only issue before the Tribunal was the quantification of that cost. The question of whether the support actually fell within the terms of the Supports Rules was not considered.
The second element of her claim - consultation with an exercise physiologist - is another matter. Ms McLaughlin maintains that this cost is necessary to allow her to participate in a class, particularly given that some modifications will be necessary - arising, for example, from the likelihood that she will be seated during such classes. That view is supported by the evidence of Dr Flanagan.
In the Tribunal's assessment this is an additional cost which is incurred by Ms McLaughlin solely and directly as a result of her disability support needs (rule 5.2(a)). She would not need to undertake this step but for her disability. As such, it is a support which meets the requirements of ss 33 and 34, and the rules.
In the peculiar circumstances of the hearing, Ms McLaughlin did not isolate precisely what the cost of an exercise physiologist would be in this context. Accordingly, the Tribunal will remit this matter to the NDIA, with a direction that the cost of a consultation with an exercise physiologist, for the purposes of preparing her for participation in tai chi classes, is a reasonable and necessary support pursuant to s 33.
the cost of alternative support
comparable supports which would achieve the same outcome at a substantially lower cost
the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides
directly
solely
While this approach might be thought of as hair splitting, it is, in my view, consistent with the nature of the residual discretion conferred on the CEO by the adjectives reasonable and necessary in s 33(2)(b). There are many supports which might be funded by the Scheme which could be said to assist participants to achieve their goals. Almost anything which promotes the resilience, confidence or well-being of a participant could be said to have that effect. However, the words reasonable and necessary import the notion that supports should have a manifest efficacy and purposefulness in relation to the goals, and should not be circuitous to that end or abstruse, before they will attract funding.
If I am mistaken in my interpretation of the word directly in rule 5.2(a), therefore, I find that Ms McLaughlin should not be funded for this support on the basis that the residual discretion in s 33(2)(b) should be exercised to find that the support is not reasonable and necessary.
With one possible exception, I consider that singing lessons satisfy the criteria in s 34(1). The lessons will most probably assist Ms McLaughlin to pursue her goal of making new friends (paragraph (a)) and will assist her to undertake activities to facilitate social participation (paragraph (b)). (Although paragraph (b) refers to a support facilitating the participant's social and economic participation, the paragraph should not be interpreted as meaning that both these outcomes must be achieved before a support will be funded. It would be perverse if participants who were not seeking economic participation were excluded from receiving reasonable and necessary supports.) The evidence of Dr Flanagan persuades me that the support would be beneficial and is in accordance with current good practice (paragraph (d)).
The possible exception is in relation to paragraph (c). The Agency contends that the existence of less expensive options for Ms McLaughlin's singing lessons have not been demonstrated to the Tribunal. I accept that the evidence in relation to the cost of lessons was not detailed, and it may have been helpful to have a letter or email from the proposed singing teacher setting out the costs, as well as quotes from other potential providers for the purposes of comparison. Such information could also have been helpful in demonstrating that a program of 40 lessons - as opposed to 30, or 20 - is required to achieve the desired goal. However, lessons costing $40 per half-hour seem reasonably cost-effective, and, as with the claim for tai chi, the Tribunal is prepared to accept, up to a point, Ms McLaughlin's personal research with respect to the marketplace, given the amount in issue.
These questions were not explored in detail with Ms McLaughlin, and the Tribunal is therefore reluctant to come to a settled view on whether the support represents value for money. It is, in any case, unnecessary to decide this question since I have determined that the support cannot be funded pursuant to the provisions of rule 5 of the Supports Rules.
In similar vein, the evidence that the proposed support represents value for money under s 34(1)(c) is singularly lacking. Quite evidently, there are many avenues for exercising the brain, ranging from crosswords, sudoku and quizzes all the way through to specifically-styled brain exercises available online and in various publications. Many of these are free, or come at the cost of a newspaper or magazine. Ms McLaughlin says that she believes free online brain exercises would not be adequately useful in addressing her impairments, but this assertion is no more than ipse dixit. There is simply no empirical evidence to sustain the proposition.
The support for brain exercises does not meet the statutory test.
she does all of those things
passion around writing and music, and it is almost never free
It contended that Ms McLaughlin's attendance at the paid writing and music festivals and concerts may well be effective and beneficial to overcoming her social isolation, but so would any community event that involves her getting out of her house and engaging with others - including free events. The fact that she might have a particular passion for paid writing and music festivals does not detract from the fact that there are other community activities available for free which are also beneficial to improving her social isolation. Ultimately her evidence falls a long way short of demonstrating that she has explored all options and opportunities available to [her] in [her] local community as discussed in the Operational Guidelines. Ms McLaughlin did not provide any evidence to support her assertion that she does all of those things (i.e. attend all the freely available community activities), or even that she has explored those activities but determined that they are not suitable for some reason.
Ms McLaughlin's evidence as to why free events were unsuitable for overcoming her social isolation was unconvincing. She told the Tribunal there is often not a lot of opportunity for socialising at free events, and that she encounters stigma due to her disability at such events. She also said that she found it hard to make friends at these events, due to anxiety and depression. She further mentioned that it was sometimes difficult to join discussions over coffee at the conclusion of events because she found the smell of coffee unpleasant. None of this, however, explains why paid-for events would obviate these difficulties. She clearly has a perception that events she pays to enter will deliver better opportunities for meeting people and making connections, but she offered no probative reason as to why this should be so.
The Tribunal discerned from Ms McLaughlin's evidence that many community activities which she might have become involved in were not to her taste. She made reference, for example, to wanting to be involved in a community choir where she could sing material with which I have... connection. Similarly, I assume she would eschew attending some free music events if the musical genre there did not reflect her preferences. However, personal preference can be given only limited latitude when the decisionmaker is required by statute to take into account value for money. While she has a passion for paid writing and music events, other events outside this domain may in fact be more cost-effective in helping her meet people.
In fairness, the various alternatives for overcoming social isolation which the Tribunal discusses in the paragraphs above were not put to Ms McLaughlin at the hearing. It may be that she would be able, if given the opportunity, to provide compelling reasons as to why they were unsuitable, and hence why only events she paid to attend would suffice. The alternatives are referred to, however, to illustrate that her assertions in relation to free events are somewhat counterintuitive. The Agency argued that her evidence falls a long way short of demonstrating that she has explored all options and opportunities available to [her] in [her] local community. I accept that submission. Her evidence and submissions have not satisfied the statutory test, and accordingly I find that she is not eligible for the support requested.
Addressing that task, I observe that it is difficult to see how the support addresses Ms McLaughlin's goal of My home meets my financial, health and disability needs and is welcoming to others. A support focused on mobility aids relates to her personally, not to her home. However, it is easier to see how the support might address her goal of To continue to receive transport support and support for aids.
The Agency argues that the claimed support does not assist her to pursue her goals - in this case, to receive support for aids - because it is the aids themselves which so assist her, not the insurance of those aids. In certain contingencies the claimed support would indeed assist her to pursue this goal, however. If her mobility scooter were to break down irretrievably, the availability of private insurance cover might provide her with a replacement scooter sooner than if she relied on the Agency to furnish one. If, say, this meant that she had the benefit of a scooter for 11 months of the year as opposed to 10 months where she had no resort to insurance, then the insurance support could be said to assist her to pursue her goal of receiving support for aids.
In two respects, however, the claim for the support is wanting, in the Tribunal's assessment. Because of the residual discretion in s 33, regard may be had to the provisions of the Supports Rules and the Operational Guideline to determine whether the support is reasonable and necessary. The Guidelines set up the requirement that the NDIA is able to identify a clear and direct link between the support to be funded, or provided, and one or more of the goals outlined in the participant's statement of goals and aspirations. There must be said to be a measure of doubt as to whether there is a clear and direct link between the proposed support and the goal of receiving support for aids. That is, the support will only assist in pursuing the goal in the (presumably rare) circumstance that (a) an item of AT needs to be replaced, (b) the need is urgent and cannot be planned for, (c) the Agency is unable to replace the item or provide a temporary alternative in a timely way, and (d) an insurer is able to do one or both of these things.
More significantly, Ms McLaughlin has not demonstrated that the proposed support represents value for money (s 34(1)(c)). Irrespective of the comfort which she no doubt would derive from knowing that she has the alternative of claiming on insurance for an item that needed replacing, the cost effectiveness of this arrangement from the point of view of the funding Agency (which, of course, is the relevant test) is far from clear. Replacing items promptly from the Agency's resources may, in the circumstances, be more cost-effective - but whether it is or isn't cost-effective is a question on which no evidence has been placed before the Tribunal. Such a question may only be amenable to answer through actuarial analysis. Certainly, from Ms McLaughlin's point of view it would presumably have been far more cost-effective (or at least more beneficial) to have called on insurance for the items she needed to replace in 2019, but I have already indicated that these circumstances are sui generis, and should not be the basis on which the cost effectiveness of insurance in ordinary circumstances should be judged.
On the basis that the proposed support does not meet the criterion in s 34(1)(c), it must be refused.
The decision which is ultimately the subject of Tribunal review is described in s 99 as a decision to approve the statement of participant supports in a participant's plan [under] subsection 33(2). The decision of the CEO in s 33(2) is to approve the plan prepared with the participant. The CEO does not directly determine the contents of the statement of participant supports. He or she simply approves (or refuses to approve) a plan. The binary nature of his power is emphasised in s 36(5).
Consequently, all that the Tribunal can do on merits review is approve the statement of participant supports prepared with the participant or set it aside and approve a different statement of participant supports. There is no power in the Act to vary a plan once approved. A participant may request the CEO to conduct a review of his or her plan at any time (s 48(1)), and the CEO may initiate a review autonomously at any time (s 48(4)). However, the outcome of such a review is the preparation of a new plan, not the variation of the previous plan (s 49). In this case, the decision the subject of review approved a statement of participant supports which did not include the two supports which the Tribunal has now determined Ms McLaughlin was entitled to. Accordingly, the Tribunal must now set aside the statement of participant supports made by the CEO on 27 June 2017 and remit for reconsideration by the CEO the two matters on which the Tribunal has determined Ms McLaughlin is entitled to supports.
Accordingly, the Tribunal sets aside the reviewable decision dated 29 March 2018 and in substitution determines that Ms McLaughlin is entitled, pursuant to s 33(2) of the Act, to the following reasonable and necessary supports in respect of her 2017 plan:
those supports included in the statement of participant supports dated 27 June 2017;
costs solely and directly related to the operation of a disability-modified motor vehicle, above and beyond the costs incurred in operating a standard motor vehicle, including those additional costs, if any, relating to registration, insurance, maintenance and fuel; and
a consultation with an exercise physiologist, for the purposes of preparing her for participation in tai chi classes.
The Tribunal remits to the Agency consideration of any claim made by Ms McLaughlin in respect of those supports to which the Tribunal finds she is entitled.