QZHH and National Disability Insurance Agency [2018] AATA 1465 | Case summary

QZHH and National Disability Insurance Agency [2018] AATA 1465 | Case summary | Zoe

[3]

The Applicant has two parents and an older sister aged nine (who I will refer to as the Mother, Father and Sister). The family live in Geelong, Victoria; in a home which was recently purpose-built by the family, using (in part) funding provided under the NDIS, to provide greater ease for the day to day care of the Applicant (including, for instance, the installation of ceiling hoists and ramps and a separate unit annexed to the house to accommodate the Applicant).
The Applicant's family situation is complex.
The Mother is an NDIS participant who suffers from a significant long-standing mental health condition (bipolar adjustment disorder) that fluctuates and requires careful medical and environmental management to minimise the impact of this condition upon her and her family. The core support in the Mother's NDIS plan is the provision for funding for six hours per week of cleaning and household activities to achieve the Mother's first goal of maintaining her mental health by reducing her stress to allow time for her university studies and her children.[4]
It was contended that the Mother's mental health condition prevents her from providing independent care to the Applicant; however, she is able to interact with the Applicant as a parent. Essentially, it was contended that her role has been limited to spending time with and playing with the Applicant.
The Father has been the primary family care giver for the Applicant, alongside the Applicant's current professional support carers. He has been diagnosed with depression with the symptoms being managed by appropriate medication. The Father also provides regular care and support to the Mother with respect to her mental health condition during the times that it becomes symptomatic and impact upon her.
The Father and Mother share the parenting and care for the Sister, who does not have any diagnosed medical conditions impacting upon her, although reference was made in the evidence to more recent concerns arising in relation to her psychological and emotional wellbeing.
The Applicant has grandparents who also live in the Geelong area (Grandparents). The evidence suggests that they do not take an active role in the physical care of the Applicant. However, they spend time with the Applicant and more so, the Sister who occasionally stayed overnight with the Grandparents.

[13]

Section 35 of the Act allows for NDIS rules to be prescribed establishing a method for assessing, or the criteria for deciding, the reasonable and necessary supports or general supports that will be funded or provided,[7] or for declaring particular reasonable and necessary supports or general supports that will or will not be provided or funded, either generally or for prescribed participants.[8]
Rules have been prescribed and are in force, being the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Rules). Section 33(5)(d) of the Act requires that those Rules be applied in the making of a decision to approve a statement of participant supports. Schedule 1 of the Rules requires the CEO of the NDIA to have regard to certain matters in relation to reaching a state of satisfaction with respect to subsection 34(1)(f), namely that supports are appropriately funded or provided under the NDIS.
The NDIA provided the Tribunal with an extract from its internal operational guidelines, namely, Operational Guidelines - Planning (Chapter 10) (Guidelines) which guides delegates of the CEO of the NDIA in reaching the requisite state of satisfaction under s 34 of the Act in relation to the statement of participant supports. The Tribunal was also provided with a document which was said to be Appendix 1 to the Guidelines.[9] The Tribunal considers it appropriate to consider those Guidelines and act consistently with them, unless there are good reasons not to or unless the Tribunal considers them to be inconsistent with the legislative regime - see Re Drake and Minister for Immigration and Ethnic Affairs (No.2)(1979) 2 ALD 634_._
Subsection 37(2) provides that a participant's plan cannot be varied after it comes into effect, but it can be replaced under Division 4 of the Act.
The plan ceases to be in effect when it is replaced by another plan under Division 4 or when the participant ceases to be a participant, whichever occurs first - see subsection 37(3) of the Act.

[14]

As the Applicant's December 2016 Plan has been replaced by subsequent NDIS plans, by operation of s 37(3) of the Act, the December 2016 Plan ceased to be in effect as from 3 February 2017.
At the hearing, the effect of this provision was addressed, specifically, whether it meant that any decision made by the Tribunal in relation to the December 2016 Plan would have no practical effect or operation with respect to funding the provision of supports for the Applicant at the current time and going forward.
The NDIA proffered an undertaking to the effect that if this Tribunal found that additional or increased supports for the Applicant were reasonable and necessary under s 34 of the Act, the NDIA would be prepared to adopt such findings by incorporating those supports in a new plan for the Applicant, which it would put in place immediately following any such findings by this Tribunal.
This jurisdictional issue has arisen in other applications before the National Disability Insurance Scheme Division of this Tribunal for a review of statements of participant supports under NDIS plans. It is often the case, as in this application, that by the time the application for review by this Tribunal has been heard and finalised, the NDIS plan containing the statement of participant supports at issue has been replaced by a new plan.
I have closely considered recent decisions by other members of the Tribunal concerning or touching upon this issue, including the decisions in Re SSBV and National Disability Insurance Agency [2017] AATA 2174, LNMT and Re National Disability Insurance Agency [2018] AATA 431, Re SHGH and National Disability Insurance Agency [2018] AATA 674, Re FJKH and National Disability Insurance Agency [2018] AATA 1294 and PNMJ.
It is commendable that the NDIA has sought to deal with this jurisdictional challenge in a pragmatic way by proffering the undertaking referred to in paragraph [49]. However, upon close examination it appears that this is not necessary. For the reasons expanded upon below, I consider that the previous December 2016 Plan, containing the statement of participant supports under review, is enlivened when the Tribunal makes its decision upon review and the enlivened plan (and the approved statement of participant supports within it) will have current operation and continue into the future, until replaced by another NDIS plan.
Under section 103 of the Act, this Tribunal has the power to review a decision made by a reviewer under subsection 100(6) of the Act.
Subsection 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides that for the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision; and shall make a decision in writing affirming, varying or setting aside the decision under review and if the latter, make a decision in substitution or remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. A short-hand way of putting this is that the Tribunal will stand in the shoes of the decision-maker who made the decision under review.
This requires the Tribunal to identify the powers and discretions conferred on the reviewer. The reviewer derives their power under subsection 100(6) of the Act. Under this provision, the reviewer is required to make a decision confirming, varying or setting aside the reviewable decision, and in the latter case, to substitute it for a new decision. The effect of subsection 43(1) of the AAT Act is that the Tribunal may also exercise such power.
Section 99(d) of the Act sets out that a decision under s 33(2) of the Act, to approve the statement of participant supports in a participant's plan, is a reviewable decision. Consequently, in this application, the reviewable decision the reviewer was reviewing under subsection 100(6) of the Act was the decision made on 1 December 2016 by the delegate of CEO of the NDIA to approve a statement of participant supports for the December 2016 Plan.[10]
Under subsection 37(1) of the Act, a participant's plan comes into effect when the CEO has received the participant's statement of goals and aspirations and approved the statement of participant's supports.
When this Tribunal makes its decision in this application, standing the shoes of the reviewer, the effect of it will be to approve the statement of participant supports forming part of the December 2016 Plan. It follows then, by force of s 37(1) of the Act, that the Applicant's December 2016 Plan containing the (newly) approved statement of participant supports, will come into effect. The second and only other requirement under s 37(1) of the Act has already been met, namely, that the CEO has received the participant's statement of goals and aspirations.[11]
The intention of Parliament for the Tribunal's decisions to have such an effect is consistent with subsections 43(5A), (5B) and (6) of the AAT Act which provide as follows:

[16]

Given that the December 2016 Plan will be enlivened by the decision of this Tribunal on the date this Tribunal makes its decision, it will be necessary for the Tribunal to extend the review date of the December 2016 Plan (the review date is presently 1 December 2017 which has since passed), to a date into the future that the Tribunal considers appropriate depending on the circumstances. I have dealt with this issue at paragraph [249] of these reasons for decision.
I consider the Tribunal has the power to extend the review date as it is one of the five mandatory matters that a statement of participant supports must have specified in it under s 33(2) of the Act. Section 33(2) of the Act provides that a participant's plan must include a statement of participant supports that specifies five different matters (not only the list of supports), including:
- (a) the general supports (if any) that will be provided to, or in relation to, the participant;
- (b) the reasonable and necessary supports (if any) that will be funded under the NDIS;
- (c) the date by which, or the circumstances in which, the Agency must review the plan under Division 4;
- (d) the management of the funding for supports under the plan; and
- (e) the management of all other aspects of the plan.
It is the approval of statement of participant supports and by extension, the matters contained within that statement (which includes the review date), that is at the heart of a review before the Tribunal in an application such as this.
If a decision of the Tribunal is made which has the effect of approving the Applicant's statement of participant supports as referred to above and this causes the December 2016 Plan to come into effect by operation of s 37(1) of the Act, the plan will commence operation and continue to operate until it is replaced by a subsequent NDIS plan. Upon doing so, I consider that the Current Plan, in force as at the date of this Tribunal's decision being made, will cease to have effect.
Based on my interpretation of the provisions of the Act and the Tribunal's powers under the AAT Act as set out above, in practical terms, the consequence of the review process will be that the Applicant has current approval to access the supports that the Tribunal considers to be reasonable and necessary supports, until such time as the Applicant's enlivened plan is replaced by a subsequent NDIS plan at some point in the future.
I consider that this approach is consistent with Parliament's decision to establish a merits review process before the Tribunal in relation to certain decisions concerning the administration of the NDIS. Specifically, Parliament must have intended for the parties to an NDIS plan to have access to a way of resolving disputes between them about supports for the Applicant in a meaningful way, by presently them with a review process that delivers at the end of it, a decision that the Applicant may rely upon to enable him or her to receive funding now and going forward, for the supports ultimately approved by the Tribunal. By contrast, a resolution which is purely historical about what should have been approved and provided to the Applicant as reasonable and necessary supports at some earlier point in time (but the time has since passed for the Applicant to access those supports), would serve little or no benefit to the parties and is likely to lead to frustration.

[96]

(j) the Father took on the bulk of the role preparing the medications for the Applicant. When asked whether the Mother took a role in this, the Father said, "I try to do it most of the time. [The Mother] on the very odd occasion does do it";

(k) there were eight or nine medical specialists involved in the medical care of the Applicant. The frequency of appointments with those specialists fluctuated. He said that over the previous two months, the Applicant had eight or so appointments with medical specialists, with about half of them being at the RCH in Melbourne. At least one parent will attend, together with the professional carer, to take the Applicant to those appointments and to liaise with the medical team. He said attending an appointment at the RCH would usually take about four to six hours, "maybe more", when taking into account travel and wait times;

(l) there were four shifts, and accordingly, four "handovers", in a day. He said at the handovers, the person who has cared for the Applicant during the last shift would explain to the carer taking over what the Applicant has been doing, what seizures she has had and when she last had a nappy change;

(m) the Father said he coordinated all of the scheduling of appointments for the Applicant, with some assistance from the RCH program. He also said in the main, he tried to coordinate the dissemination of information between the medical team and the therapists and carers, and there were some systems in place to assist with that;

(n) the Father said he was in contact with the Applicant's care agency daily;

(o) the records maintained of the Applicant's sleep patterns and seizure activity were reviewed by the Father (or the Mother) multiple times a day;

(p) the Father said it was not possible to call on other family or friends to take on the care needs of the Applicant, if a carer was unavailable, because "they feel they're too hard for them";

(q) the Father said that he would spend a couple of hours each day on administrative tasks to ensure that the Applicant received the support she needed;

(r) the Applicant's previous care agency withdrew in about June or July 2017 stating as its reason for doing so was that it could not fund carer training and it considered a larger agency would "do a better job". Five carers from the previous care agency transitioned over to the new care agency and continued to provide care to the Applicant. The Father said that the Applicant presently had nine carers and that it was hoped that this could be increased to "12 to 14";

(s) through the Family Choice Program (now the Complex Care Hub) carers were required to have regular contact with the Applicant (at least fortnightly care for the Applicant). The Father suggested that this limited having arrangements with multiple agencies or having a larger pool of carers, because "you wouldn't be able to give that minimum requirement of fortnightly contact on the roster". He said a nurse would be able to step in because their medical knowledge enabled them to step in without that regular fortnightly contact issue;

(t) the Applicant attended kindergarten in 2017. Attendance was scheduled four days per week for 15 hours per week in total. He said the emergency management of seizures while in attendance at kindergarten were slightly different from at home and a different procedure applied. A nurse from Barwon Health provided training to carers to undertake the procedure that applied at kindergarten; and

(u) when getting the Applicant ready to attend kindergarten, the carer was required to think ahead about the Applicant's needs. He said the carer would pack additional continence aids, spare clothes, and would need to consider when her medications and feeds were due. The Applicant's equipment was required to be transported with her, including her oxygen saturation and suctioning equipment. He said the carer who undertook that preparation would also attend with the Applicant at kindergarten.

[106]

The Applicant is currently receiving care services provided by an entity registered with the Australian Charities and Not-for-profit Commission for the provision of support care services to the Applicant (Care Agency One). A Divisional general manager from Care Agency One (Agency Representative) gave evidence at the hearing and sent a letter to the Applicant's representative dated 27 October 2017 setting out information about the care arrangements in place for the Applicant.[40]
At the hearing, the Agency Representative stated as follows:
- (a) he was responsible for the profit and loss outcomes across his Division which had a turnover of approximately $31,000,000. This Division provided in-home supports across Victoria;
- (a) Care Agency One has provided carers to care for the Applicant since September 2017;
- (b) he had met the Applicant's family "to increase his understanding" as he knew there were some complexities with the Applicant's program and he was responsible for signing off on any special requirements or additional costs or risks involved with it. He stated he did not have day-to-day involvement with the program. He said he received a report from Care Agency One's operations manager who had direct responsibility for the program.
- (c) he was responsible for making fiscal decisions in relation to the program, namely, whether to incur or absorb additional costs or to review its ongoing viability from a fiscal perspective and/or the complexity of the program;
- (d) when Care Agency One took over the program, it "took on" five or six of the carers from the Applicant's previous care agency. He said he believed that Care Agency One currently had four trained carers who cared for the Applicant. In his statement, the Agency Representative expressed his view that "12 to 14" carers were needed to deal with the usual "churn" and to ensure the roster was full at all times. He also stated that if the funding was increased to year-round 24/7 care that those numbers would increase further;
- (e) there was a limit on the number of hours that the agency could direct one of its carers to provide services in any given week, being 37.6 hours "or something like that". He also said that ideally, to avoid an over-reliance by a client on any one individual, the agency would only assign a carer to a particular client for about half of a carer's available hours;
- (f) the agency had experienced issues with recruiting for the Applicant's program because of a supply and demand problem in the Geelong area where the Applicant lived and in relation to finding carers adequately trained to care for the Applicant given the complexity of her diagnoses, and also the "specific filters around the family";
- (g) the agency had used nursing agencies to fill some shifts since commencement of the Applicant's program. He said that even if the pool of trained carers for the Applicant increased to "12 to 14", he anticipated still having to fill gaps in the roster by engaging nurses. He said that, "I would not want to have that as the default but we need - our duty of care underneath the actual commercial arrangement - our duty of care is to make sure those shifts are not left to the individual or the family to pick up if need be as a fall back"; and
- (h) optimally, it takes four to six weeks to recruit and "on-board" a carer within the care agency. The agency has about 200 to 210 support workers being a mixture of permanent and casual staff.

[108]

A current professional carer of the Applicant (Carer One), made a statement dated 31 October 2017. At the time Carer One made her statement, she had been caring for the Applicant for approximately two years and ten months.
In her statement, Carer One stated as follows:
- (a) the Applicant had grown a lot in the time she had been caring for her and that Carer One now always had to use a floor hoist and ceiling hoist machine to move the Applicant from her bed to the floor, or to her chair, to prevent injury to the Applicant and to Carer One;
- (b) the Applicant's communication skills had improved and that she was able to respond to close-ended questions. Carer One said that the Applicant's response times varied but it usually took about 12 to 15 seconds;
- (c) she had undertaken theoretical and practical training at the RCH before she started caring for the Applicant, including how to:
  - (i) distinguish between different types of seizures;
  - (ii) use the oximeter machine, setting up the limits of the Applicant's Sp02 and heart rate;
  - (iii) insert the probe;
  - (iv) give oxygen to the Applicant;
  - (v) use the oxygen cylinder and concentrator;
  - (vi) put on the face mask or to use nasal prongs;
  - (vii) use the suction machine and select the catheter size for oral suctioning and use a yanker sucker when nasal suctioning;
  - (viii) implement the Applicant's seizure management plan and how to give Midazolam;
  - (ix) feed the Applicant through the PEJ tube and give her medication through the PEG tube; and
  - (x) provide stoma care;
- (d) the training she has received has been vital for her to care for the Applicant because if she had not received it, she does not think she would be able to look after the Applicant on her own and would not know how to manage her seizures;
- (e) she needs to keep up to date with any changes to the Applicant's care needs and new equipment, including whether she had an ear infection (requiring ear drops), any skin changes (requiring skin creams) or bowel changes (requiring management);
- (f) the most difficult aspect for Carer One of caring for the Applicant was to see her struggle when she was sick and could not breath properly; when she needed percussion to help her cough and suctioning because she was unable to spit out phlegm or mucus. Carer One said she needed some time off to help manage the stress she experienced at these times;
- (g) 2017 had been a difficult year for the family due to unfilled carer shifts sometimes requiring the Father to do day and night shifts;
- (h) she has not seen the Mother caring for the Applicant by herself;
- (i) active night care was vital as the Applicant had seizures even when she was asleep; and
- (j) in her view, the Applicant needed 24 hours care support.
Another one of the Applicant's professional carers (Carer Two), made a statement dated 3 November 2017 and also gave evidence at the hearing of this application. Carer Two stated as follows:[41]
- (a) she had been involved in the Applicant's care for the past two years. Previously she had one permanent shift per week with the Applicant. More recently, she had one permanent shift and would cover for other unfilled shifts if she was available;
- (b) the Applicant had improved dramatically, particularly, with her communication and motor skills, and was not suffering as many long seizures daily as previously. The Applicant's personality had "come out a lot more";
- (c) caring for the Applicant involved constant observation (including taking a video monitor with her whenever she left the room); giving medication; PEG/PEJ care, monitoring the Applicant's breathing; playing with the Applicant; hygiene care (bathing and showering); dressing; nappy changes; transfers; community access; keeping her entertained while assisting her to learn new things and improve her skills and exercises and activities to help her communication and motor skills;
- (d) when filling in on some unfilled shifts, Carer Two had attended kindergarten with the Applicant and this required her to be by the Applicant's side to help her play with things by assisting her movements to enable her to interact with other children and to monitor and manage her seizures;
- (e) during night shifts, Carer Two said it was her responsibility to stay awake the whole shift to reposition the Applicant; change her nappies and attend to her oral care, monitor her seizures and oxygen saturation; start her new feed, fill in paperwork and do the Applicant's laundry;
- (f) when monitoring the Applicant's seizures it could be difficult to distinguish between the different type of seizures she was having;
- (g) to manage the Applicant's seizures, Carer Two said a carer needed to time them and note characteristics displayed, monitor oxygen saturation and give oxygen if needed; talk to the Applicant and provide her with comfort, administer medication (Midazolam) if required and if so, monitor the Applicant's breathing as the medication could cause respiratory depression and foamy bubbles and sometimes, suction was required;
- (h) caring for the Applicant was extremely tiring due to the intensity of the care required and she did not think it was possible for her to do more than four shifts of 6.5 hours duration in a one week period; and
- (i) in her view, Carer Two considered that 24/7 care was required for the Applicant.
At the hearing, Carer Two gave evidence as follows:
- (a) she was working elsewhere and was also studying nursing (due to graduate in mid-2018);
- (b) apart from her one weekly regular shift, she was asked to fill shifts extra shifts on average once every two days. She has only taken up the invitation to take an extra shift about once a fortnight, or once a week more recently;
- (c) if she needed to move or transfer the Applicant, she would use a hoist. There were two hoists in the house. An in-built hoist which went from the bedroom to the bathroom and a portable hoist;
- (d) the Applicant could nod or shake her head to communicate "yes" or "no" (and sometimes she could vocalise "yes"). She said they used the PODD book with the Applicant which took time and sometimes up to 15 minutes for the Applicant to say one thing;
- (e) the length of the Applicant's seizures were not as long as they used to be. When the Applicant was sick, her seizures got worse. She said it was easier to administer the old protocol, because the Applicant was given Midazolam automatically if the seizure lasted for five minutes, but the new protocol required an assessment first, as to whether the Applicant was coming out of the seizure at the five minute mark before administering Midazolam;
- (f) Carer Two received training to care for the Applicant which took about one or two months. The refresher trainer took one day and involved doing a shift with the Applicant and the nurse. She said she believed this to be a requirement of the RCH;
- (g) two or three times a year, Carer Two would meet with the Applicant's occupational therapist and speech pathologist (with the other carers). This allowed for the therapists to provide the carers with things that they could do with the Applicant to help improve her. She said she found this "very helpful" and that the Father was always present and sometimes the Mother;
- (h) when Carer Two starting caring for the Applicant, she had three shadow shifts with other carers. At the beginning, the Father and Mother made sure they were there. She first started to care for the Applicant on her own after about three months when she said she had the confidence to do so;
- (i) it could be very tiring, physically and emotionally, to undertake all the tasks needed to care for the Applicant, particularly when she was sick. During a shift with the Applicant, if Carer Two left the room that the Applicant is in for any reason, she was required to take the video monitor with her and not leave the room for longer than two or three minutes;
- (j) sometimes it was necessary to do a two-person lift. She said she stopped doing one-person lifts about one and a half years ago;
- (k) it was not possible to care for the Applicant if she had an illness or in a set period to follow, depending on the type of illness. She said she had cancelled many shifts with the Applicant for this reason;

[114]

The Applicant's representatives contended that the broader objects of the Carer Recognition Act 2010 (Cth) (CR Act) were pertinent and should be considered when the Tribunal gives effect to the objects in s 3(3)(c)(iii) of the Act. The Tribunal accepts this contention.
The Tribunal notes that s 7 of the CR Act provides that public sector agencies have the following obligation:
- (1) Each public service agency is to take all practicable measures to ensure that its employees and agents have an awareness and understanding of the Statement for Australia's Carers.
- (2) Each public service agency's internal human resources policies, so far as they may significantly affect an employee's caring role, are to be developed having due regard to the Statement for Australia's Carers.
The Statement for Australia's Carers is set out in Schedule 1 of the CR Act and is reproduced below:
- (1) All carers should have the same rights, choices and opportunities as other Australians, regardless of age, race, sex, disability, sexuality, religious or political beliefs, Aboriginal or Torres Strait Islander heritage, cultural or linguistic differences, socioeconomic status or locality.
- (2) Children and young people who are carers should have the same rights as all children and young people and should be supported to reach their full potential.
- (3) The valuable social and economic contribution that carers make to society should be recognised and supported.
- (4) Carers should be supported to enjoy optimum health and social wellbeing and to participate in family, social and community life.
- (5) Carers should be acknowledged as individuals with their own needs within and beyond the caring role.
- (6) The relationship between carers and the persons for whom they care should be recognised and respected.
- (7) Carers should be considered as partners with other care providers in the provision of care, acknowledging the unique knowledge and experience of carers.
- (8) Carers should be treated with dignity and respect.
- (9) Carers should be supported to achieve greater economic wellbeing and sustainability and, where appropriate, should have opportunities to participate in employment and education.
- (10) Support for carers should be timely, responsive, appropriate and accessible.
The Tribunal also notes that s 10 of the CR Act provides as follows:
- (1) This Act does not create rights or duties that are legally enforceable in judicial or other proceedings.
- (2) A failure to comply with this Act does not affect the validity of any decision, and is not a ground for the review or challenge of any decision.
- (3) If a public service agency, or an associated provider, is required by another law of the Commonwealth, or by a law of a State or Territory, to consider particular matters, or to comply with particular requirements, in the exercise of its functions or powers, nothing in this Act is to be taken to require the agency, or the associated provider, to act inconsistently with that law.
The intention to recognise and promote the well-being of carers, which underpins the CR Act, is reflected in its own right in the principles found at s 31(c) and (d) of the Act and as set out in paragraph [142].

[116]

The Applicant contends that the Tribunal should be satisfied that each of the requirements under s 34 of the Act are met with respect to its proposal that funding should be approved for year-round 24/7 Carer Support for the Applicant.
In the AC Submissions, the Applicant contended as follows:
- (a) the Applicant has a need for constant monitoring because of her risk of a fatal seizure. It was acknowledged by the Applicant's representatives that the Applicant's epilepsy had been "stable" for the previous 18 months to two years in terms of the amount of seizures and rescue medications (Midazolam) administered to the Applicant. It was contended that this did not reduce the intensity or amount of care the Applicant needed because:
  - (i) the Applicant continued to have a large number of seizures every day, despite having tried "virtually every available" anticonvulsant medication;
  - (ii) the timing, duration and severity of seizures were not able to be predicted;
  - (iii) the Applicant's seizure management plan was changed in January 2016 and the new plan required carers to exercise greater skill and judgment to distinguish between different types of seizures to determine whether the administration of rescue medication was warranted; and
  - (iv) seizure monitoring devices were ineffective and not recommended;
- (b) the Applicant's proposal for this level of support must be considered in the context of the various interconnected factors that made caring for the Applicant extremely complex and difficult, as well as the family's lived experience over many years in trying to manage those factors;
- (c) one reason why the proposed increased level of Carer Support was reasonable and necessary was that two people were not always, but often, needed to care for the Applicant. Those times were not able to be predicted because the Applicant's energy levels and availability to develop through play or activity was dependent upon the impact of her seizures, which were unpredictable in their timing, frequency and severity;
- (d) the Applicant's attendance at school could not be relied upon to free up enough time to allow the parents to work or study. It was proposed that eventually the Applicant would attend school on a full-time basis; however, it was uncertain whether this was achievable due to her susceptibility to the Applicant's severe illness, her need to attend medical appointments and the availability of adequate care at school. The Applicant was not able to attend school unless the Father or a support carer was available to attend with her;
- (e) aside from attending school, the Applicant's activities at home such as therapy, play and communication with family and carers, as well as opportunities for outings, all performed a fundamental part of facilitating her social and economic participation and 24/7 care was required to facilitate those activities. The Applicant's ability to interact with her environment had improved and she needed assistance to facilitate those interactions. Assisting the Applicant to communicate and participate in activities or play was generally laborious and time consuming and many types of activities required two people to assist;
- (f) if Carer Support was only provided for 16/7 care for 39 weeks of the year this would require the Applicant's parents to care for the Applicant the remaining eight hours per day during those 39 weeks. The Applicant's representatives contended this was not reasonable for the following reasons:
  - (i) when a carer was not present, the Father was required to attend to the primary care of the Applicant. The Mother was able to and does provide some secondary care to the Applicant but cannot and does not provide any primary care due to her mental health condition. The amount of secondary assistance the Mother was able to provide to care for the Applicant fluctuated as the Mother's mental health fluctuated. If a carer or the Father was nearby, the Mother was able to provide care for the Applicant for short periods, 30 minutes at the most, however, even short periods of caring for the Applicant, especially on a repetitive basis, had a negative impact on the Mother's mental state and rendered her more vulnerable to relapse;
  - (ii) it was unsustainable for the Father to care for the Applicant for eight hours per day, seven days per week. This amounted to 56 hours per week, which was more than a full-time job and exceeded the allowable number of shifts that an agency carer could do;
  - (iii) the Father was also constantly involved as a parent and doing tasks for the Applicant during the times he is not acting at the primary carer for her;
  - (iv) the Father covered any unfilled shifts in the carer roster, which inevitably arose due to carer illness, unavailability or attrition and he also undertook other tasks because of the Applicant's medical conditions, including:
    - keeping and reviewing records of seizures and care tasks;
    - liaising between numerous support providers including doctors, therapists, carers, the care agency and support coordinators;
    - scheduling the Applicant's therapy and medical appointments;
    - attending all medical appointments, which may take up the whole day if the appointment takes place in Melbourne;
    - involvement in recruiting carers;
    - providing assistance to carers;
    - conducting carer handovers, usually four per day;
    - preparing medications three times per day;
    - attending therapy sessions;
    - attending the Applicant's school for orientation of carers and teachers; and
    - providing extensive support, monitoring and care to the Mother because of her mental illness;
  - (v) if the Father was required to act as the primary carer for the Applicant eight hours per day, seven days per week, in addition to attending to the matters referred to above, and also parenting and caring for the Sister, he would not be left with adequate time and energy to attend work, spend quality time with his family, rest or have any social or leisure time of his own;
  - (vi) the Father was at constant and increasing risk of "", which was contended, could only reliably be alleviated with the funding of the additional care hours as proposed. The current circumstances relied on the Father to carry a very high work and stress load. The Father's psychologist suggested that this was not tenable from a mental health perspective;

[118]

At the hearing, the NDIA contended that the provision of a support carer to the Applicant to provide 16/7 care for 39 weeks each year and 24/7 care for the remaining 13 weeks each year (equivalent to an average of 126 hours per week) was reasonable and necessary.[43]
The NDIA contended that the provision of and funding for year-round 24/7 care as contended for by the Applicant was not a reasonable and necessary support under s 34 of the Act for the following reasons:
- (a) the evidence demonstrated that there were some occasions where two people were needed and other occasions, where it would be helpful (but not necessary), to have two people present to provide care for the Applicant. This evidence included the Father's concession at the hearing that it was possible for one person to use the hoist to move the Applicant and for one person to play with the Applicant without the need for a second person. It also included Carer Two's evidence that even though a second person was required for therapy; it was possible to play with the Applicant without a second person. In other words, the evidence did not support the Applicant's contention that two people are often needed to care for the Applicant;
- (b) even if two people were sometimes required to care for the Applicant and the timing of those tasks was unpredictable, this did not warrant the conclusion that 24/7 care for the Applicant was reasonable and necessary. The tasks that required two persons present were transportation and therapy and they could be scheduled at times when additional help was available, i.e., because both parents were home or because a carer was available. The fact that the family might plan to have two people available for (say) therapy on a given day and the Applicant (unpredictably) is not able to participate, did not warrant funding year-round 24/7 care, and it would be an unreasonable cost. The tasks required to respond to a risk to the Applicant's life, that is, monitoring of her breathing and implementation of the seizure management plan, did not require two persons present. Carer Two gave evidence that she undertook the overnight monitoring of the Applicant alone and was trained to implement the seizure plan on her own. If additional help was required, and not available in the home, Carer Two was able to call an ambulance;
- (c) the Tribunal should take into account the availability and capacity of the Applicant's parents. The Father does not work full-time. He was rostered for two 10-hour shifts per week. There was no evidence tendered from the Father's psychologist in support of the assertion that the Father was at risk of "carer burnout". The Mother's psychiatrist gave evidence that she could not manage the Applicant's care needs alone but was able to assist another person in caring for her daughter. Carer Two gave evidence that the Mother would give her a hand if she needed it and would play with the Applicant;
- (d) the assertion that the Father would be required to care for the Applicant 56 hours per week was incorrect because it did not take into account that the NDIA had approved 24/7 care for 13 weeks of the year (or more recently eight blocks per month of 24 hours short-term accommodation for the Applicant). The assertion about the likely impact on the Father, also did not take into account that the Mother could assist the Father with caring for the Applicant, and could perform a parenting role. The NDIA rejected the assertion that 56 hours per week was not a reasonable amount of time for the Father to provide care to the Applicant;
- (e) 24/7 care was not reasonable and necessary because it did not take into account the provision of funding for carer support (and transportation of the Applicant) by the government-funded programs through the education system during times when the Applicant attended school;
- (f) when the Applicant attended school, her parents would be free to attend to work, study or other matters. It was acknowledged that it would take some time for the Applicant to transition to schooling and there would be times when she was unable to attend, however, it was contended that this had not been taken into account by the Applicant and that the Tribunal should do so in assessing whether 24/7 care was reasonable and necessary for Applicant.

[120]

On 7 November 2017, the NDIA provided a letter to the Applicant's representative advising that while the NDIA maintained its position in relation to 24/7 care, having read the evidence including the statements from the Applicant's parents and the demands and stress that the Applicant's impairments had on the family, the NDIA was prepared to fund, as a reasonable and necessary support, up to eight days per month to allow for the provision of short term accommodation for the Applicant.[44]
The Tribunal notes that this additional support was incorporated into a subsequent NDIS plan for the Applicant that commenced on 6 December 2017.[45] The Tribunal also notes that the level of day-to-day care was reduced to year-round 16/7 care in more recent plans, including the Current Plan.
The Applicant provided a detailed response to this proposal and newly incorporated support at paragraphs [31] to [36] of the AC Submissions.
Concerns were raised by the Applicant's parents at the hearing, and reiterated in the AC Submissions, that it may not be possible to identify suitable respite accommodation for the Applicant in Geelong which had the current resources to safely meet the Applicant's care needs.
On the third day of the hearing of this application, the NDIA committed to allowing the Applicant to use the funding that was offered for eight days of short-term respite accommodation per month for the Applicant, flexibly, meaning that the funding could be used to pay for additional carer hours if desired. The NDIA also confirmed that a day's short-term accommodation for the Applicant was a reference to a period of 24 hours in total.
The Applicant contended that if the Tribunal considered this support to be reasonable and necessary under s 34 of the Act that it is structured so that she may use the funding flexibly within the "core supports" budget within the statement of participant supports, which included carer hours. Based on the above indication from the NDIA, this was an agreed position between the parties, i.e. if the support was to be included, that the funding for it could be used by the Applicant to pay for any of the other supports listed in the "core supports" budget, such as the provision of additional hours of support carers to the Applicant.
The Tribunal notes that during cross-examination at the hearing, Doctor Four asked whether the problem of "carer burnout" might be assisted if, hypothetically speaking, there were a suitable placement for the Applicant in a special care facility on weekends. Doctor Four responded:

[130]

In relation to s 34(1)(b) of the Act, the NDIA contended that the best way to facilitate the Applicant's social and economic participation was for the Applicant to attend school. Without the Applicant's attendance at kindergarten or school, the NDIA contended that her interaction with the world, outside of her home, appeared to be very limited. The NDIA contended that one danger of the approval of funding for 24/7 care for the Applicant in her home was that it might reduce her parents' commitment to prioritise the Applicant's schooling.
The Tribunal considers that in paragraph [7] of the AC Submissions, the Applicant merely suggests that activities in home such as therapy, play and communication with family and carers as well as opportunities for outings, performed a fundamental part in facilitating the Applicant's social and economic participation, in addition to the Applicant's attendance at kindergarten and school, which the Applicant's parents expressly acknowledged were key objectives for the Applicant.
The Tribunal did not gain an impression from the evidence that the Applicant's parents' commitment to prioritise the Applicant's schooling was in any way lacking or wavering. This is reflected in the successful commencement of the Applicant in attending school in 2018, facilitated by her parents, despite the multitude of challenges involved. The Tribunal acknowledges that the Applicant's more recent attendance at the School was not known to the NDIA at the time it made its submissions.
The Tribunal also accepts the Applicant's contention that social participation may take several different forms and extends to activities both inside and outside of the home with a whole range of different people, including professional carers and therapists.
Doctor Four, in his letter dated 27 September 2017, confirmed that from a medical perspective, the constant monitoring of the Applicant to manage her seizures when they occurred and to administer oxygen as required was, in effect, to keep her alive and to minimise any further harm to her. At a very basic level, those activities were required to maintain the Applicant's current level of health and already significantly impaired degree of function. If the Applicant's health or level of function declined further, on account of inadequate care, this would limit her ability to engage in social participation as she would not be well enough to socialise with other people or to engage in learning and other developmental activities, such as schooling, family outings or therapy, inside or outside of the family home.
For this reason, the Tribunal concludes that this support assists the Applicant to undertake social participation by maintaining her health sufficiently such that she is well enough to engage in social activities inside and outside of the home. Accordingly, the Tribunal concludes that this requirement under subsection 34(1)(b) of the Act is met.

[138]

The Tribunal accepts the evidence of Doctor Four and is satisfied that based on presently available technology, the medical evidence supports a conclusion that seizure monitoring devices do not have the functionality to be able to be employed as an alternative support for the Applicant to monitor her seizures, in place of a support carer to undertake this task for any part of the day.
Paragraphs [108] to [113] describe the present level of attendance by the Applicant at her new school. The evidence confirms that while she is at school, the School provides funds the training and provision of teachers/aides and a nurse to care for the Applicant. The Tribunal accepts the NDIA's contention that it is appropriate that this is taken into account in assessing the value for money criteria. The approval of funding for the provision of carers for the hours in the weeks when the Applicant is in attendance at the School would not constitute value for money.
The difficulty lies in being able to accurately predict how many hours the Applicant will be in attendance at the school in any one week during school term. However, the Tribunal is satisfied that it is possible to arrive at a reasonably reliable estimate of the degree of likely attendance by the Applicant at school going forward until the end of Term 2 2019, based on the experience thus far in 2018 during school terms 1 and 2.
Based on the figures provided to the Tribunal on 14 May 2018, the Applicant has had an 80% success rate in attending school during this period.[47] Applying this attendance rate to the intended number of hours over the next 12 months, it is likely the Applicant will be in attendance at the School as follows:
- (a) Term 3 2018: 19 hours per week X 80% = 15.2 hours per week;
- (b) Term 4 2018: 21 hours per week X 80% = 16.8 hours per week; and
- (c) Term 1 2019: 30 hours per week X 80% = 24 hours per week; and
- (d) Term 2 2019: 30 hours per week X 80% = 24 hours per week;
There are 10 weeks in a school term. This means that the Applicant is likely to be in attendance at the School over the next 12 months for a total of 152 + 168 + 240 + 240 = 800 hours.
The total number of hours of actual attendance at the School by the Applicant will no doubt vary from week to week; however, there is sufficient flexibility within the NDIS plan for the funding to accommodate those variations.
The Tribunal is satisfied that based on this factor alone that the provision of funding for Carer Support should be reduced by 800 hours year to reflect that it is likely that for at least those number of hours per year, that the Department will fund carer support to the Applicant.
If the Applicant's level of attendance at school significantly changes, whether it increases or decreases, the NDIA may initiate an unscheduled plan review or the Applicant may request one, in the usual way under the provisions of the Act to make appropriate adjustments to the plan.

[151]

The Mother's psychiatrist also gave evidence at the hearing and stated as follows:
- (a) the Mother did not experience any manic episodes in 2016;
- (b) in February, March and April 2017, the Mother experienced a manic episode of such severity that warranted hospitalisation for her own safety;
- (c) during a manic episode, the Mother's typical manic symptoms include racing thoughts, irritability, concentration difficulties, sleep difficulties, impairment of judgment and suicidal ideation. The Mother had not expressed any thoughts of harm to her children;
- (d) the Mother was discharged from hospital in April 2017 and re-admitted in June 2017 when she was trialling a new medication, Lithium. Since being on Lithium, there had been a gradual improvement in the Mother's concentration and it had improved her irritability and her sleep and he had not observed any significant manic symptoms. The Mother was still vulnerable to relapse as the medication was not "bullet-proof". The Mother's mental health conditions (bipolar adjustment disorder and obsessional personality traits) were not curable;
- (e) in relation to the condition of bipolar adjustment disorder, everyday routines were particularly important including the Mother exercising and engaging in meaningful activities. Before the Mother undertook university studies, she would become more easily overwhelmed with the Applicant's care needs and difficulties obtaining carers. People with this condition are also sensitive to disruption of their sleep cycle and the timing of sleep could on its own, precipitate episodes of mania or depression;
- (f) when the Mother was having an episode, the Father was required to provide monitoring and support to her and this would involve having a presence around her, observing how she was and intervening where necessary;
- (g) the Mother was capable of parenting when she was well and that she was a good parent. He said that parenting involved attending to issues concerning the child "both at the moment and into the future" and was a more diverse role than that of a carer. However, when the Mother was unwell, including during manic episodes, her concentration difficulties, irritability and impaired judgment may affect her parenting of her children;
- (h) the Mother was not able to care for the Applicant because in the context of caring for her, as opposed to parenting, the Mother had been overwhelmed, distressed and had difficulty coping, as a consequence of the physical complications of caring for the Applicant. He said he thought this related to the Mother's obsessional personality structure and past effects of trauma the Mother experienced as a child. He said that if the Mother experienced feelings of being overwhelmed and distressed, she was likely to experience difficulties in terms of sleep;
- (i) the Mother's capacity to care for the Applicant was not likely to significantly improve with time and continued treatment, including the introduction of Lithium; and
- (j) the Mother was able to assist another person to care for the Applicant, depending on what she was assisting the person with. The Mother was capable of spending time with the Applicant but if it related to her physical care needs or other health-related issues, she became overwhelmed very quickly.
The Father gave evidence at the hearing the Mother was receiving a carer's pension from the government. He sought to explain this by stating:

[157]

There was no evidence provided by the NDIA that the support coordinator (standard or specialist) was expected to play a role in the day-to-day administration of the Applicant's plan, such as managing the appointments with therapists, ensuring adequate liaison between them, and managing the appointments with the various medical specialists. For this reason, and based on the evidence of the Father as set out in the above paragraph, the Tribunal finds that this was not the intended role of the Applicant's support coordinator. Consequently, the day-to-day administration of the plan fell to the Applicant's parents being consistent with the evidence that the Father had undertaken this role to date.
In assessing whether the requirement under s 34(1)(e) of the Act is met, I consider it important to base my decision on the facts as they exist at the present time.
At the present time, the Father is working two 10-hour shifts per week in a demanding position where at times he is required to work under stressful circumstances. The Tribunal considers that it is not reasonable to expect the Father to provide any hours care to the Applicant, as the primary carer, on the days that he has been working a 10-hour shift in his current employment. The Father is unlikely to have residual energy and concentration to safely do so after he has completed his work shifts.
The Tribunal also considers that is not reasonable to expect the Mother to provide such primary care on those days, or in fact, any other day. The Tribunal accepts the evidence, as supported by the opinions of the Mother's treating psychiatrist, that she is not able to provide care for the Applicant independently, due to the risk it may place on the Mother in terms of causing her to have a recurrence of her bipolar adjustment disorder and consequently, the risk it may place on the Applicant if the Mother was caring for her and her mental function were to become impaired. The Tribunal is satisfied that any role that the Mother played would appropriately be limited to:
- (a) providing secondary care to the Applicant; and
- (b) as addressed in more detail below, in providing a greater level of assistance with respect to the administration of the Applicant's plan and reviewing records of seizures and care tasks, in order to relieve the Father from some of this responsibility.
Accordingly, taken from a position that there are typically five days in a standard working week, for three days in the standard working week when the Father is presently not scheduled to work, the Tribunal considers that that it is reasonable to expect that the Father will provide eight hours of care to the Applicant as the primary carer on those days in his role as a parent to the Applicant.
At those times, the Mother is able to assist the Father in caring for the Applicant as a secondary carer. At those times, the Mother will have the Father nearby to assist her when she finds that it begins to place too much stress on her (for instance, if the Applicant commences having seizures or otherwise develops other symptoms which require intervention by the person or people caring for her).
In coming to this decision, the Tribunal has taken account of all of the many other things that the Father attends to on behalf of the Applicant and in particular, the administration of her plan and his attendance at her medical appointments, as well as needing to care for the Sister and the Mother when she is not well. However, as already mentioned above, the Tribunal considers that there is capacity for the Mother to provide an increased level of assistance to the Father with some of those things. The Tribunal considers that the Mother's ability to manage the administration required to undertake a tertiary level of studies demonstrated a capacity and capability on her part to be able to manage the administration (at least, in part) of the Applicant's plan or to assist with the scheduling of appointments.
The Tribunal does not consider it reasonable to expect the Father to care for the Applicant as the primary carer (or the Mother to do so) for a further two days of the week, notionally, the weekend period for the family (although given the nature of the Father's work this may not necessarily fall on a Saturday or Sunday), to provide the family with sufficient support such that they can enjoy some respite to recover from what is likely to be a demanding routine during the remainder of the week.
It is acknowledged that the demands of caring for the Applicant are onerous and can be tiring. Given the flexibilities inherent in the scheme, the Tribunal notes that the Father will be at liberty to try to arrange to care for the Applicant at times when those demands are likely to be at their lowest (acknowledging it may not always turn out that way due the unpredictable nature of the Applicant's conditions), to prevent the Father from becoming tired by his involvement in providing care to the Applicant on the days when he is not scheduled to work.
The Tribunal also acknowledges that it is not uncommon for shifts to be unfilled. When that happens, the Father would be required to "cover" for that shift. This might be so, but the hours from the unfilled shift may then be "banked" and used to fill an additional shift on a scheduled 16/7 care day, which the Tribunal considers would provide an opportunity for the Father to recover from his involvement in the unplanned shift.
The Tribunal considers that the arrangements described in paragraphs [154] to [161] do not propose a threat to the Mother's sleep cycle being disrupted. They will also allow for the Mother to have sufficient time to engage in the tertiary studies stated by her psychiatrist to be a protective measure with respect to her mental health. If these things, as well as having supports approved for the Applicant which are not based on her providing care for the Mother as a primary carer, are successful in minimising any further relapses of the Mother's bipolar adjustment disorder, which was asserted to be the case, the Mother would be in a position to assume a greater role in the day-to-day administration of Applicant's plan, in order to relieve some of this administrative burden from the Father.
I acknowledge that the Father has expressed a desire to do more shifts at his workplace. On the third day of the hearing, he accepted that three shifts per week was most likely the highest number of shifts that were achievable. However, I note the evidence given at the hearing that even when the level of care provided to the Applicant was high (due to the use of "banked hours"), the Father remained working only two shifts per week. This satisfies the Tribunal that it may not be achievable for the Father to increase the number of shifts he does beyond the current level of two per week, even if the Applicant were to be provided with a higher level of Carer Support for the Applicant.
However, if that prediction proved to be incorrect, and the Father increased his number of scheduled shifts, the Applicant is at liberty to request an unscheduled plan review by the NDIA to seek appropriate adjustments to the plan in accordance with the principle that the Tribunal does not consider that it is reasonable to expect that the Father will provide any hours of care to the Applicant as the primary carer on any additional days that the Father may be scheduled to work in his present occupation in the future.
In summary, the Tribunal concludes that the requirement under s 34(1)(e) of the Act is not met with respect to the Applicant's proposal for year-round 24/7 care. However, based on the principles articulated above, the Tribunal considers that this requirement is met with respect to the provision of 24/7 care to the Applicant for four days per week and 16/7 care on the remaining three days per week (which is equivalent to 144 per week or 7,488 per year), minus 760 hours per year on account of the estimated hours over the next 12 months that the Applicant will be cared for by carers at the School to be funded by the Department. This amounts to a total of 6,728 hours per year.

[174]

In Victoria, where the Applicant resides, the Disability Discrimination Act 1992 (Vic) applies to prohibit discrimination against persons with disabilities in a number of different areas, including with respect to education. Various government-funded programs are available to school children in Victoria to ensure that reasonable adjustments have been made or strategies adopted by schools so that children with disabilities have access to education.
The Tribunal has taken into account the evidence provided about the Applicant's previous attendance at kindergarten and the funding that was provided under the Kindergarten Inclusion Support Services (KISS) program for the provision of care to the Applicant while she was in attendance at kindergarten in 2017.
Of greater immediacy, the Tribunal has taken into account the information provided about the Applicant's attendance at the School in the first two terms of 2018. This information confirmed that while the Applicant was in attendance at the School she received funded teachers/aides and a nurse at the school to provide the Applicant with appropriate care.
On this basis, the Tribunal considers that the cost of providing Carer Support to the Applicant for the expected periods of duration of attendance by her at school is more appropriately provided by the School (funded through the government-funded programs that are available to it) and is not most appropriately funded under the NDIS.
On this basis and given the findings of the Tribunal as set out in paragraphs [129] to [134], the Tribunal considers that the total number of hours of Carer Support should be reduced by 800 hours per year that the Applicant is likely to spend at school during the second half of 2018 and first half of 2019 on the basis that during those 800 hours per year when the Applicant is likely to be in attendance at her new school, the cost of providing Carer Support to the Applicant is more appropriately funded under the general education system (as it is presently the case) and not most appropriately funded under the NDIS.

[193]

In his letter dated 27 October 2017, the Agency Representative stated as follows:[58]
- (a) Care Agency One commenced the provision of support care services to the Applicant on 9 September 2017 when it was "back filling" shifts for the agency previously used by the Applicant. It started provided services as the principal care agency for the Applicant as from 25 September 2017;
- (b) all carers from Care Agency One providing services to the Applicant were required to undergo client specific training at the cost of $1,000 per carer, either at Barwon Health or the RCH in seizure management and the administration of Midazolam for seizure control. He stated that at present, Care Agency One "has had to absorb this cost as there is no provision for it" in the Applicant's NDIS plan. It is understood by the Agency Representative that this training was required under the RCH guidelines or requirements. He said the operations manager of Care Agency One had told him this;
- (c) all carers at Care Agency One were required to obtain a "working with children" clearance; complete yearly competences in cardio pulmonary resuscitation; manual handling; medication training; hand hygiene and first aid (every three years). These competencies were "industry standard". As such, he said that the training cost for these competencies was an expected cost and that Care Agency One did "not require any funding" for them;
- (d) Care Agency One considered that 12 to 14 carers "should be available" to work on the Applicant's program considering the requirement for staff to take off an additional shift if they are ill, due to the Applicant's susceptibility to illness; the night shifts were active, rather than inactive; and the time it took to recruit and train a carer before they are ready to commence shifts with the Applicant; and
- (e) there was a very small pool of carers to provide services to the Applicant because Care Agency One (as at 27 October 2017) had "only recently taken over servicing this program" and support carers were "often unsure and nervous about working on high needs programs, especially when the client is a child". He said there was often high turnover on complex programs due to the "sometimes stressful nature of the shifts".
The Agency Representative also provided a written update to the Tribunal on 9 November 2017 about the training requirements for support workers explaining that there would be an additional training requirement for nine staff on the Applicant's program (two of them had limited availability), at the cost of $1,000 per person if delivered through Barwon Health.[59] He said the program would be fully staffed once there were 12 to 16 trained carers on it. Those figures took account of the need for staff to take an additional day's leave if they were sick due to the Applicant's susceptibility to infection. He said these figures would increase if the changeover rate of staff increased.
In relation to the training of the Applicant's carers, the Agency Representative stated as follows at the hearing:
- (a) he believed that the RCH was able to fund client-specific training of the Applicant's carers up to a maximum of five carers per year. Beyond that, he said the agency paid Barwon Health $1,000 per carer to receive the client-specific training. He said Care Agency One also paid the carers for the time that was needed for them to undertake the training. He confirmed that the training related primarily to the management of the Applicant's seizures and that depending on the client base of Care Agency One, the skills developed by this training might be transferrable to the care of other clients of the agency (i.e. those clients who also had epileptic seizures);
- (b) Care Agency One received a gross margin per hour of about 20 per cent for the provision of carers to provide in-home support the agency's clients. He said Care Agency One paid for costs including "compliance, insurances, all the usual corporate overheads and individual overheads" from this margin;
- (c) on-the-job client specific training was also undertaken by the new carer doing "shadow shifts" with other carers. He said this would sometimes take up to three shifts. He said the cost of the new carer doing a shadow shift was "taken up" by Care Agency One. The care agency also covered the cost of a carer needing to do refresher training, where the carer had not cared for the Applicant for a period of longer than two weeks; and
- (d) some of the client-specific training in this case, in particular, training that relates to seizure management, might be transferable to other clients of the agency depending on their needs.
The Agency Representative gave evidence that while Care Agency One was currently picking up the cost of training additional carers, this was financial unsustainable on a long-term basis.
The Tribunal notes that Care Agency One is a large Australian Public Company with four consumer-facing divisions operating in the disability, community and aged care sector. As at 30 June 2017, its financial position was strong and growing, showing an overall surplus of approximately $2 million (up from $379,016 in the previous year).
The Tribunal notes that the size of the Service Agreement between the Applicant and Care Agency One is substantial and potentially constitutes a revenue stream to the agency in the vicinity of $6,000 per week - 20 per cent (i.e. $1,200 per week) of which is retained by the care agency, following payment to the carers themselves. The Tribunal acknowledges that the agency's overheads are funded from this 20 per cent margin although no breakdown was provided to the Tribunal.
There was no evidence provided to substantiate the Agency Representative's claim that the financial viability of the Applicant's program would be unsustainable if Care Agency One was required to meet the cost of the client-specific training of its carers for the Applicant at the cost of $1,000 per carer on a continuing basis. The Tribunal is unable to make a finding in relation to this assertion due to a lack of evidence, except to note that Care Agency One is likely to receive a profit margin (funded by the NDIS) of approximately $50,000 per year from its Service Agreement with this Applicant.[60]
The Tribunal notes that Care Agency One has entered into a contractual arrangement with the Applicant and accepted a contractual obligation to provide services to the Applicant in accordance with the Schedule of Supports. There was no provision in the Service Agreement that placed the obligation on the Applicant to deliver client-specific training the Care Agency One carers. Further, Care Agency One accepted a booking from the Applicant to provide a certain number of care hours to the Applicant. I consider that Care Agency One is under a contractual obligation to provide the services that are booked by their clients and accepted by the agency.
At first blush it would seem open to the Tribunal to conclude that the cost of ensuring that the carers employed or engaged by Care Agency One receive client-specific training (such that they are adequately trained to be able to competently and safely provide services to the Applicant), is an expense that is more appropriately funded by Care Agency One.
However, the Tribunal has carefully considered Appendix 1 of the Guidelines that were referred to by Ms Wong in the Applicant's SOP at paragraph [110] which suggests that this type of cost is "generally funded by the NDIS".
Appendix 1 comprises a collection of tables, all structured in an identical way, with three columns (coloured green, amber, red) dividing various types of supports into three different categories. Those categories are headed as follows:

[197]

As stated in paragraph [44] above, the Tribunal's general approach will be to act consistently with operational guidelines unless there is a good reason not to or they are inconsistent with the provisions of the Act.
In an application like this, I consider that it would be difficult for the Tribunal to reach a conclusion that the reference to client-specific training as appearing in the green column in Appendix 1 (as reproduced in the above paragraph), is inconsistent with the legislation because the test in the Act used to determine what supports should be provided and funded to a participant as reasonable and necessary supports is non-prescriptive and based on the general principle-based requirement of s 34(1). Accordingly, I am not satisfied this part of the operational guidelines is inconsistent with the legislation.
I must also consider whether there as a good reason why I should not follow that guidance. To answer this, I have considered whether a good reason might be that the cost of the client-specific training is an expense which Care Agency One currently has an obligation to provide under its Service Agreement. The Agency Representative asserted at the hearing that the agency was currently covering this cost but it was not financially sustainable to continue to do so. Although I am not convinced that the agency is unable to afford the cost of this training by applying part of the 20 per cent margin it receives under the contract to pay for it, there was insufficient evidence for the Tribunal to make a finding about this. However, as a matter of principle, I do not consider the fact that a third party was agreeable (in its Service Agreement) to meet this cost and it was able to afford to continue to do so, is a good reason not to follow the Guidance referred to above which is to the effect that the NDIS will generally fund this type of support.
There is a further issue arising as to the interpretation of the Guidance. I found the provision relating to client-specific training to be expressed in ambiguous terms. The first part of the guidance is clear in that it refers to client-specific carer training which would include the carer training for the Applicant to be delivered through the Complex Care Hub at the RCH or by Barwon Health at the cost of $1,000 per carer.
It is less clear whether it would also include the payment to the trainee carer for their time required to attend the training. I consider that it does not and that it is only referring to the training fee to deliver the training itself to the trainee carer.
It is also unclear what is meant by the words at the end of the guidance as follows:

[199]

While I acknowledge these words might be interpreted differently by others, I consider that they were intended to mean that the NDIS would (generally) fund training for new carers who are to a care for a participant or need to have some refresher training because the Applicant's needs have changed. It is more challenging to find meaning in the sentence in the brackets as it does not explain which training it is referring to. I consider that this was intended to mean that if a care agency employs or engages a new carer in the agency, it is responsible to provide them with the general training they require to work competently as a care for their agency in general (such as the training referred to by the Agency Representative in this case in paragraph [196 (b)] of these reasons for decision).
Accordingly, the Tribunal considers that in the context of this application, the Guidelines provide that the NDIS would generally fund the cost of the client-specific training (and subject to the paragraph below, the refresher training) of the carers who are to provide personal care to the Applicant. I do not consider that this is inconsistent with the legislation or that otherwise, there is a good reason why I should not apply this guidance. I also note the significance that such training has in enabling a carer to safely provide care to the Applicant, taking into consideration of the evidence given by Carer One as outlined in paragraph [89 (c)]. For this reason, I conclude that this requested support meets the requirements of s 34(1)(f) of the Act as I am satisfied that it is most appropriately funded under the NDIS and not more appropriately funded by Care Agency One as contended for by the NDIA.
There is one qualification to this conclusion that relates to refresher training. There was a particular focus during the hearing on whether the refresher training that was presently taking place when a carer had not cared for the Applicant for a period of longer than two weeks was necessary. It was contended by the Father to be a requirement of the RCH. The evidence revealed that there was presently no written requirement by the RCH that the refresher training take place at such time. The Father also gave evidence about some flexibility around this requirement if the carer had been caring for the Applicant for a period of more than one year.
The Guidelines, as discussed in the paragraphs above, appear to recognise that the NDIS should generally fund the cost of the refresher training when the participant's needs change. I have decided to act consistently with this and I consider that the NDIS should only be required to fund the cost of refresher training for the Applicant at times when the seizure management protocols in her Care Manual change which would justify the need for such refresher training. If carers undergo, other refresher training, I consider that the cost of this is not most appropriately funded under the NDIS but is more appropriately funded by the care agency employing or engaging that carer as regular staff training.
In conclusion, I am satisfied that the approved statement of supports for the Applicant should include Top Up Carer Training (beyond the first five carers per year funded by the RCH, and does not include the carer hours required by the trainee carers to attend that training which should be met by the care agency). Funding should also be provided by the NDIS to pay for refresher training to the Applicant's carers limited to times when the seizure management protocols in her Care Manual change.

[204]

The Agency Representative gave evidence at the hearing as follows:
- (a) the care agency calls upon five or six different nursing agencies to arrange for nurses to fill shifts to care for the Applicant. Care Agency One absorbed the additional cost of using nurses instead of carers;
- (b) there had been three night shifts filled by a nurse fairly frequently on most weeks for several months, as well as some shorter shifts throughout the day where there were gaps. He said this was not an ongoing arrangement. He said that as the number of trained carers in the pool increased, there were would be a reduced need for back-up nurses to fill shifts;
- (c) the filters (for recruitment) specified by the Applicant's family included preferably being female; a non-smoker; with experience with an individual with complex care needs and some others (possibly around availability); and
- (d) to become a registered organisation under the NDIS, Care Agency One had provided a declaration that it had suitable capacity and experience to provide supports and manage funding for supports as covered by the application. He said he understood this declaration to mean that the agency was required to provide whatever supports or services that the participant had engaged it for.
The Father gave evidence at the hearing as follows:
- (a) having the back-up nursing support provided him and the Mother with "a bit more certainty around actual care, because without that extra layer we don't really have certainty that I can go to work, that [the Mother} can go and study, that we can really rely on her care provision. So, yes, that's pretty vital, to know that we can sleep the night before work and I'm not going to be up all night and then have to call in sick, or at the last minute, someone's called in sick and there's no possible, like, you know, layer of backfill"; and
- (b) Care Agency One called upon five or six nursing agencies to find nurses to fill shifts and they are used only when the agency was unable to find a trained carer. He said that from September 2017, the pool of nurses had increased from five to nine and there were three regular night shifts with the Applicant that were being filled by a nurse, as well as some shorter shifts during the days if there were gaps.
The Tribunal notes that Top-up Nursing Support may be, and in the Applicant's case, is currently being utilised in two instances. The first is that nurses might be scheduled ahead of time to fill a vacant shift in the Applicant's care schedule due to a shortage of available carers (Scheduled Top-up Nursing Support). The second is that nurses might be called in on short notice to cover for a carer who was scheduled to care for the Applicant and due to sickness or otherwise, has become unavailable at the last moment (Emergency Top-up Nursing Support).

[213]

In the Internal Review Decision, the NDIA did not accept the request by the Applicant to include 24 hours of music therapy in the statement of participant supports but instead, added an additional eight hours of therapy (unspecified).
At the hearing, the Father requested music therapy for the Applicant in accordance with the recommendations of the music therapists. The music therapists recommended that the Applicant receive 26 hours of music therapy per year. No evidence was tendered by the NDIA providing an alternative recommendation.
It was contended in the NDIA's SOP that funding of additional music therapy (beyond the 12 hours (plus the additional 8 hours) already approved, in the form of general therapy) did not meet the requirements of s 34(1)(c) and/or s 34(1)(d) as there was no evidence to establish the benefit of the additional therapy to the Applicant beyond the approved hours and therefore, it was not possible to show that it constituted value for money.
At the hearing, the NDIA also suggested that at the end of the Applicant's last plan she had not used funding that was available to her for 48 hours of therapy (unspecified), which could have been used for additional music therapy. This was put to the Father in cross examination at the hearing. The Father indicated that he did not know how many therapy hours remained at the end of the plan. He said he was not in a position to dispute this assertion. He submitted that even if this was so, it should not matter because the basis for his request for additional hours of music therapy reflected the recommended hours of therapy by the Applicants' music therapists. In the AC Submissions in Reply, Ms Wong, contended, in effect, that the Tribunal should not find that a support is not reasonable and necessary because a participant had not used all of the available funding the previous plan. Ms Wong also contended the NDIA had not presented sufficient evidence to demonstrate that there was 48 hours of approved funding for therapy (unspecified) in the previous plan that were not used by the Applicant.
The challenge with this particular issue is that it does not align with the structure of the funding approved for this support in the more recent plans including the Current Plan. The Applicant's representatives contended in the AC Submissions that there was funding for the Applicant in the plan under review for up to a maximum of 20 hours. By the NDIA adding a reference to the number of hours next to each type of therapy, it had the potential to confuse matters and it provided the Applicant's parents with an impression that there was a cap in place for each of the different types or categories of therapies. However, this was not the case and the global funding of $31,778.17 was able to be used flexibly, as the different types and categories of therapies were not marked as "stated" supports.
In one sense, given there was no evidence or report by the Father at the hearing of the Applicant ever having used the entire budget in the plans for the Support Area for Improved Daily Living, there was a sense of unreality about this matter being agitated before the Tribunal. While it appeared to be a theoretical exercise based on the underutilisation of this funding in previous plans, the Tribunal acknowledges that at some point the NDIA will undertake a calculation to allow it to arrive at the global funding figure that it will insert into the statement of supports for this Support Area in future plans. In that sense, the number of therapy sessions for this type of therapy is important to establish, even if it is not specified in the plan as a separate support. That is, if it used in the NDIA's calculations, it will affect the global funding approved for the Support Area for general therapies.
From that point of view, so that the parties receive the benefit of knowing from the Tribunal what it considers to be an appropriate component of this global figure on account of a provision for the cost of a music therapist, even if it is ultimately used for other types of therapies, I am satisfied that based on the evidence of the Father and from the Applicant's previous and current music therapists as outlined in detail below, that the provision of funding (as a component of the global budget for Improved daily living Support Area) for 26 hours of music therapy for the Applicant is reasonable and necessary, as I am satisfied that all of the requirements under s 34(1) of the Act are met.
The Father gave evidence at the hearing that:
- (a) the Applicant started receiving music therapy about two years ago and has music therapy once a fortnight; and
- (b) at the time the Applicant had her first session she was not using her voice much at all. After the first session, the father observed the Applicant laughing, chatting and vocalising and that she "came alive after that first session". He said the music therapy had also helped the Applicant to move and assisted with her communication. He said these increased activities were connected with the therapy because the Applicant was engaging with the songs. He described it as a "highly interactive type of experience". He said this therapy has pushed her further in a lot of ways.
The Applicant's current music therapist (Current Music Therapist), together with the applicant's former music therapist (Former Music Therapist), jointly prepared a "Music Therapy program review" report dated 1 September 2017. These therapists have consistently recommended that the Applicant be provided with fortnightly one-hour music therapy sessions. In their joint report, the music therapists stated:

QZHH and National Disability Insurance Agency [2018] AATA 1465 (31 May 2018)

At a glance

Court

Decision date

Source

Judgment (245 paragraphs)

Legislation Cited (5)

Cases Cited (6)

QZHH and National Disability Insurance Agency [2018] AATA 1465 (31 May 2018)