SCHW and National Disability Insurance Agency [2021] AATA 591 (12 March 2021)

1. The objects and principles in the NDIS Act provide guidance on the interpretation of the statute. Section 3 sets out the objects of the NDIS Act, which relevantly include:
   • giving 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
   • supporting the independence and social and economic participation of people with disability; and
   • enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
   • promoting the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
   • protecting and preventing people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the NDIS; and
   • raising community awareness of the issues that affect the social and economic participation of people with disability and facilitating greater community inclusion of people with disability.
2. Paragraph 3(3)(b) of the NDIS Act also notes that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.
3. Section 4 outlines the general principles guiding actions under the NDIS Act. These include affirming that people with disability:
   • have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development; and
   • should be supported to participate in and contribute to social and economic life to the extent of their ability; and
   • 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; and
   • 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; and
   • 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.
4. Subsection 4(11) of the NDIS Act further provides that:

Reasonable and necessary supports for people with disability should:

(a) support people with disability to pursue their goals and maximise their independence; and

(b) support people with disability to live independently and to be included in the community as fully participating citizens; and

(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.

1. Under subsection 209(1) of the NDIS Act, the Minister may make rules prescribing matters under the Act. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Support Rules) are relevant to this matter and form part of the legislation.
2. Operational Guidelines drafted by the CEO of the NDIA also assist staff to make decisions and perform functions under the Act. The Operational Guidelines relevant to this matter are:
   • the Planning Operational Guideline (the Planning Guideline); and
   • the Including Specific Types of Supports in Plans Operational Guideline - Assistance Animals (the Assistance Animals Operational Guideline).

These Operational Guidelines represent government policy and therefore should be applied by the Tribunal unless there is good reason not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[2]

1. Chapter 3 of the NDIS Act outlines provisions for participants and their plans; section 31 outlines principles relating to participants' plans. These include that the preparation, review and replacement of a participant's plan should, so far as reasonably practicable, be individualised and underpinned by the right of the participant to exercise control over their own life and maximise the choice and independence of the participant. Plans should also facilitate tailored and flexible responses to the individual goals and needs of the participant.
2. Matters that must be included in a participant's plans are set out in section 33 of the NDIS Act. Pursuant to paragraph 33(2)(b), plans must include a statement that specifies the reasonable and necessary supports that will be funded under the NDIS.
3. Subsection 34(1) of the NDIS Act sets out the criteria for the funding of reasonable and necessary supports as follows:

Reasonable and necessary supports

(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;

(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;

(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

(i) as part of a universal service obligation; or

(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

1. Subsection 34(2) of the NDIS Act provides that the NDIS rules "may prescribe methods or criteria to be applied", or matters to which the CEO (and therefore the Tribunal) is to have regard, in deciding whether or not he or she is satisfied of the matters mentioned in subsection 34(1).
2. The Support Rules are also relevant to assessing and determining the reasonable and necessary supports that will be funded for NDIS participants.
3. Rule 1.4 of the Support Rules essentially repeats the requirements of subsection 4(11) of the NDIS Act; it provides that reasonable and necessary supports for people with disability should support them to pursue their goals, maximise their independence and undertake activities that enable them to participate in the mainstream community.
4. Rules 5.1 and 5.3 of the Support Rules are referred to in the Assistance Animals Operational Guideline; these rules set out general criteria for supports that will not be funded under the NDIS, which include not funding a support if it is "likely to cause harm to the participant or pose a risk to others" (rule 5.1(a)), and not providing a support that would be contrary to either State or Commonwealth laws (rule 5.3(a)).

1. The issue for determination is whether funding for an assistance animal (dog) for the Applicant is a reasonable and necessary support in accordance with subsection 34(1) of the NDIS Act.
2. For clarity and consistency, we use the definition of assistance animal that is set out in the Assistance Animals Operational Guideline:

[An] Assistance Animal is an animal that is trained to perform at least three tasks or behaviours that reduce the functional impacts of a person's impairment and is assessed by an authorised body for public access.[3]

1. We note that this definition of an assistance animal is consistent with subsection 9(2) of the Disability Discrimination Act 1992 (Cth), which states:[4]

...an assistance animal is a dog or other animal:

(a) accredited under a law of a State or Territory that provides for the accreditation of animals trained to assist a persons with a disability to alleviate the effect of the disability; or

(b) accredited by an animal training organisation prescribed by the regulations for the purposes of this paragraph; or

(i) to assist a person with a disability to alleviate the effect of the disability; and

(ii) to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

1. Evidence relied upon by the Applicant included:
   • the oral and written evidence of the Applicant, and written evidence of her daughter;
   • the oral and written evidence of Ms [SB] (the Applicant's clinical psychologist);
   • written reports by the Applicant's medical and allied health specialists;
   • the oral and written evidence of Ms Diane Wegener (director and head trainer of K9 Tales); and
   • research articles on assistance dogs and persons with psychiatric conditions.

1. The Applicant was subjected to horrific sexual, emotional, psychological and physical abuse by her family members and their friends from a very young age.[5] [Redacted.]

The Applicant's diagnosis of dissociative identity disorder and complex post-traumatic stress disorder

1. The Applicant's psychiatric history spans over 40 years and has involved "numerous and lengthy admissions to various psychiatric facilities".[6] She was diagnosed with dissociative identity disorder and complex post-traumatic stress disorder in 1997 as a "direct result of her history of abuse as a child".[7]
2. Ms [SB], the Applicant's treating clinical psychologist since 2016, described dissociative identity disorder as "a coping mechanism that a person uses to disconnect from a stressful or traumatic situation, or to separate traumatic memories from normal awareness", and explained that complex post-traumatic stress disorder has all the symptoms of post-traumatic stress disorder but reflects an "accumulation of traumas" over time.[8]
3. The Applicant noted in her evidence that dissociative identity disorder "used to be called multiple personality disorder. It is a rare and complex psychological condition where a person's identity is fragmented into two or more distinct personality states called 'alters'".[9] She described her experience of dissociative identity disorder with her "alters" or "insiders" as follows:

I think of Dissociative Identity Disorder as like living in a bus that has its windows blacked out. You can only see outside of the bus when you're in the driver's seat. This bus is the body we [the Applicant and insiders] share. People outside the bus can't see how many people are inside the bus, or who was driving it at any particular time. Anyone inside the bus can take over the driving at any time.

This means that whatever the body is doing, or whoever is in the "driver's seat, outside people only ever see [the Applicant].[10]

1. She explained that her insiders include "children; some of these are illiterate, deaf and/or non-verbal", but "there is only ever one person out at a time. That person stays out until something triggers another person whether that be me, or another insider."[11]
2. While the Applicant has dissociated, her insiders have engaged in behaviours that include walking into traffic, undressing in public, hitch-hiking, starting kitchen fires while cooking, attempting suicide and self-harming. The Applicant has no memory of these events and wrote that:

It is very frightening, confusing and confronting to be doing something and with no warning be somewhere else, doing something else, sometimes in different clothes, and have no idea how I got there or how long I've "been gone".[12]

1. Due to dissociative identity disorder and complex post-traumatic stress disorder, the Applicant experiences dissociation multiple times each day with no direct memory of these episodes, and panic attacks, flashbacks, night terrors and nightmares. The Applicant has a fear of human touch as this can trigger her to dissociate, which in turn discourages her from going out in public or having social interactions; consequently, she is socially isolated. She also has episodes of depersonalisation, a feeling that she is in someone else's body, and derealisation, where she has no depth perception and cannot judge distances. She is sensitive to noise and stimulation.

1. The Applicant lives alone with her rescue greyhound dog, [G], in a rented government-owned house with a fenced back yard. The Applicant describes [G] as her "day-to-day anchor to life" and her "only regular source for giving and receiving comfort and affection".[13]
2. The Applicant has no friends. Her three children live interstate or a significant distance away, and she remains in regular contact with them through phone/text and social media.
3. The Applicant is unable to leave her home on her own due to "safety issues" around dissociating.[14]
4. The Applicant's current NDIS plan provides her with support workers for 18 hours per week to enable her to access the community. However, the Applicant has experienced difficulties with engaging support workers. These problems include the time that is involved for her to develop trust and a relationship with individual support workers, and the need to pre-arrange times to ensure continuity of support from the same support workers. The Applicant also feels limited to leaving her home within set support worker employment hours, which means she cannot leave her home to go for a walk early in the morning or outside of pre-booked times.
5. The Applicant believes her independence is undermined by being "babysat" by support workers and she feels "inferior to, and deferential toward" her support workers.[15] The Applicant also finds it difficult to impose boundaries with support workers in what she feels is an unequal partnership. Her fear of human touch has also resulted in occasions where unexpected touch by the Applicant's support workers have triggered the Applicant to disassociate while in public.[16]
6. The Applicant is seeking to increase her independence and social participation. In a written statement on 18 March 2020, the Applicant said:

I want more control over my life. I feel that other people have determined what I can and cannot do my whole life and their actions in the past continue to dictate how I live today. I want more choice and control and an assistance dog will help me with this...[17] [emphasis added]

The Applicant's history of dog ownership and ability to care for an assistance dog

1. The Applicant has owned dogs for many years.
2. The Applicant relied on the following evidence to show her capacity to care for an assistance dog:
   • detailed written statements by the Applicant and her daughter, a qualified veterinary nurse, describing the health, life and characters of each dog the Applicant has owned;
   • a written statement dated 23 March 2020 by Dr [AH], the veterinarian who has treated the Applicant's dogs for the past 15 years. Dr [AH] reported that the Applicant took "excellent" care of [G];[18]
   • veterinary records for [G] that date from 2015, setting out that [G] was adopted by the Applicant as a rescue puppy and has had ongoing health problems of back pain, lameness and renal insufficiency.[19]
3. The Applicant owns and is legally and financially responsible for [G]. She holds pet insurance for [G], and ensures his immunisation, special dietary requirements and pain relief needs are met. The Applicant also provides [G] with bedding, toys, grooming and a portable air-conditioning unit because he is affected by the heat.[20]
4. The Applicant acknowledged she has at times experienced some lapses in the care she provides to her pets.[21] We note however that these lapses have never reached a level of seriousness to be of concern to her vet, Dr [AH].
5. In oral evidence at the hearing, the Applicant explained that her insiders have "always interacted well" with [G] and her other dogs, and there "won't be a problem" with the insiders interacting with an assistance dog.[22] The Applicant answered questions from the NDIA's legal Counsel such as what would happen if an insider (for example, a child) was walking the assistance dog. The Applicant did not believe this would be an issue and explained that an assistance dog is trained to stop and "block", which would cause the dog lead to tug on her hand and break or "startle" the dissociation.[23]
6. At the Tribunal hearing, Ms [SB] (the Applicant's psychologist) said there was no indication that a professionally trained dog would exhibit anxious or aggressive behaviour towards the Applicant, nor that the Applicant and insiders had ever displayed harmful behaviour towards dogs. This opinion was based on the Applicant's extensive experience with caring for and owning dogs and that the Applicant had no history of being violent toward animals or people.[24]
7. In response to questions from the NDIA, Ms Wegener provided extensive written reports on 16 March 2020 and 3 November 2020 that included her views about whether the Applicant's request for an assistance dog posed any welfare risks to the dog, the Applicant or the public.
8. Ms Wegener opined that there was no evidence the Applicant had a history of violence and noted the Applicant had owned dogs for many years and there was "no evidence of neglect or abuse".[25] She stated that this opinion was based on information provided in the Applicant's application, personal, medical and veterinary references, the Applicant's participation in telephone interviews and her responses to questions in emails. Ms Wegener had been jnformed that the Applicant's daughter would care for the assistance dog if the Applicant is unwell and unable to.
9. Ms Wegener also opined that an assistance dog living with the Applicant will have significant time to have periods of rest and play. She formed this opinion based on the Applicant's weekly activities, which comprise sedentary/quiet activities at home, five hours walking in a park, five hours at the beach, two hours at the shops and two hours at cafes/restaurants.[26]
10. Regarding whether an assistance dog would be adversely affected by engaging with the Applicant's insiders, Ms Wegener observed that an assistance dog is trained to identify their handler's dissociative state/s and provide interruptive behaviours. She likened this situation to a dog responding to different family members "who all speak differently, have different body languages, different tones and mannerisms", or the same person who demonstrates different moods.[27] Ms Wegener further explained that assistance dogs are taught to respond to these varying situations and are trained to always stay with and provide support to their handler. She confirmed that "no dog would be placed with any individual who poses a threat to the dog."[28]

1. The Applicant described the comfort that [G] provides to her when she dissociates: for example, [G] nudges her arm or paws her if she is sitting down, puts his weight on her knees when she has panic attacks or flashbacks that helps her "re-orient" herself to "time and place", and wakes her up if she is having nightmares or night terrors.[29]
2. However, [G] is not a suitable "substitute" for a trained assistance dog. [G] is a pet dog and is not trained or qualified as an assistance dog. This means that [G] is not permitted to accompany the Applicant to public places such as shops, medical appointments or restaurants.
3. Due to his long-term illnesses, [G] is not able to be trained as an assistance dog. [G] also would not qualify as an assistance dog because of his behaviour in certain circumstances; for example, the Applicant is unable to take [G] for a walk without a support worker because he "takes off" if he sees a cat.[30]
4. The Applicant has arranged that [G] will live with her daughter when she takes ownership of an assistance dog.

The tasks an assistance dog can undertake to help the Applicant

1. The Applicant has identified that an assistance dog would help her with the following tasks:
   • prevent or block unseen or unexpected human touch that causes her to dissociate;
   • alert her and her insiders to hazards or alarms during dissociation;
   • stay with her when she dissociates and lead her to a safe and quiet place after dissociation or a panic attack/flashback; and
   • reduce her confusion after dissociation, panic attacks or flashbacks and alert her to forgotten or dropped belongings afterwards.[31]
2. In her written and oral evidence Ms [SB] also opined that an assistance dog "would truly open up the doors to independence" for the Applicant and this would provide her with "much needed dignity".[32] Ms [SB] advised that an assistance dog could ground the Applicant during a panic attack, alert her when she dissociates, and lie with her during and after night terrors. Ms [SB] explained this care cannot be provided by a support worker as human touch in these situations would "cause significant distress" to the Applicant.[33]
3. In a report dated 5 August 2020, Ms [SB] wrote:

The Assistance Dog will be able to assist [the Applicant] before a dissociative episode by allowing her to leave her home unaccompanied by support workers. She will be able to access shops, libraries, theatres, appointments and social gatherings and outings independently. It will be able to keep people at a distance while she waits in queues by standing behind her.

The Assistance Dog will assist [the Applicant] during episodes by stopping at kerbs and other obstacles, such as escalators and stairs.

It will assist [the Applicant] after episodes by helping her find a quiet place to recover; give her sensory input to keep her grounded in the present, such as by nudging and licking her. By touching the Assistance Dog, [the Applicant] will be able to focus on something familiar and on staying present, be less frightened and anxious, and therefore she will be able to recover more swiftly.[34]

1. Ms [SB] explained at the hearing that her opinion about the support an assistance dog could provide to the Applicant was based on:
   • her professional contact with the Applicant and some of her insiders since 2016;
   • the Applicant's reports about the comfort [G] provides and how this helps her to cope with some of her symptoms; and
   • research about how assistance dogs can assist people with post-traumatic stress disorder, noting the relevance of this research because people diagnosed with post-traumatic stress disorder can also dissociate.
2. While Ms [SB] acknowledged the activities the Applicant hoped to undertake independently with an assistance dog was a "wish list", she opined that an assistance dog would increase the Applicant's independence to leave her home and her independence would increase as she and her assistance dog develop their working relationship.[35]
3. Allied health professionals have also provided reports supporting the Applicant's request for an assistance dog:
   • Dr [HR] (the Applicant's General Practitioner) provided a letter dated 19 November 2018 stating the Applicant "would benefit greatly" from an assistance dog;[36]
   • Mr [RC] (Occupational Therapist) reported on 13 November 2019 that an assistance dog would provide the Applicant with:
     • increased confidence to access the community;
     • an increased "sense of personal safety" and increased "actual personal safety"; and
     • assistance to orient to time and place when she experiences episodes of dissociation and hallucination when sleeping.[37]
4. The Applicant states that an assistance dog would enable her to become independent and participate in social activities. Notably, she qualifies her expectations of an assistance dog in the following way:

I do not expect an assistance dog to "fix" my Dissociative Identity Disorder, or to stop me dissociating, or even to alert me when I am going to dissociate. It is like a person who is blind or in a wheelchair, or who suffers seizures. They do not know when or where a hazard is likely to be. An Assistance dog could not stop a hazard occurring, but they could help me deal with the hazard or when a problem occurs.[38] [emphasis added]

The effect of an assistance dog on the Applicant's need for support workers

1. The evidence of Ms [SB] and the Applicant is that an assistance dog will reduce the Applicant's need for support workers.
2. In her written report on 5 August 2020, Ms [SB] observed that an assistance dog will reduce the Applicant's need for support worker hours "substantially".[39] Ms [SB] was unable to give an exact number of support worker hours she expects the Applicant will require in this situation.[40]
3. The Applicant provided a spreadsheet with her calculations of likely savings for the NDIS if she is funded for an assistance dog.

• The Applicant is funded for 18 hours per week for support workers (936 hours per annum) at an annual cost of $50,824.80.

Situation if the Applicant has an assistance dog: savings in the first year

• The Applicant expects that an assistance dog would reduce her need for support workers to 90 hours in the first year[41] at an annual saving of $4,887.00.
• Allowing for assistance dog maintenance costs of $2,500, the Applicant has calculated a saving of $43,437.80 in the first year she has an assistance dog through reducing her support worker hours.[42]

Situation if the Applicant has an assistance dog: support worker requirements in subsequent years

• The Applicant anticipates that she would subsequently require 18 hours of support workers per annum to use in emergencies.[43]

The training and delivery of a qualified assistance dog by K9 Tales

1. Ms Wegener is the Director and Head Trainer at K9 Tales, an assistance dog training institution that was established in 2015 and is certified under the Guide, Hearing and Assistance Dogs Act 2009 (Queensland) (the GHAD Act).[44] To date, K9 Tales has trained and placed six assistance dogs for persons with mental health or psychosocial issues, and has not had a situation where the dog has not bonded with their handler.[45]
2. On 11 August 2019, Ms Wegener submitted a quote to provide a "fully trained and qualified assistance dog".[46] The quote was for $33,000, with the cost itemised as follows:
   • cost of the dog: $4,000 to $5,000; Ms Wegener gave evidence that dogs intended to be trained as assistance dogs are bred to the "highest possible standards" and both parents undergo all detectable health checks, full DNA screening, and hip and elbow scoring;
   • cost of equipment for dog and training: $2,500;
   • cost of food: $4,000;
   • cost of vet and medications: $2,500;
   • administration / insurance: $3,000; and
   • training costs including wages: $16,000.[47]
3. This quote does not include costs associated with accommodation and travel for alternative team training location, additional training or up-skilling for the handler/assistance dog, or the compulsory reaccreditation for public access every three years.[48]

Process to apply for and receive a fully trained assistance dog from K9 Tales

1. Ms Wegener described the process required for a person (referred to as the "handler") to apply for and receive a fully trained assistance dog, which involves:
   • an application and assessment process to consider the person's eligibility and suitability for an assistance dog; amongst other matters, the person must:
     • be able to demonstrate their ability to handle, care and maintain the ongoing needs of an assistance dog, and
     • have a plan in place if they become unwell or are hospitalized;
   • once an application is accepted, there is a process to identify the person's needs and limitations, match the handler and the dog and commence team training for the handler and the dog;
   • training involves teaching:
     • the handler and dog to safely navigate different environments and situations, and
     • the handler to use the assistance dog to perform specialised tasks aimed to assist their individual circumstances;
   • an assistance dog must pass the public access test to become certified and ensure it is:

safe and effective in a public place, public passenger vehicle or place of accommodation, and [is] able to be controlled by the person they accompany;[49]

• K9 Tales will not place a dog with a handler unless the public access test has been passed;
• at official handover (usually when the dog is about two years of age), the handler takes over full ownership and responsibility of the assistance dog and is then responsible for the ongoing care of their assistance dog and associated costs including food, veterinary bills and flea/tick management;
• K9 Tales provide the following warranty:

We encourage new owners to seek any additional medical assessment of their choice from an independent source within a two-week timeframe to ensure they are happy with the health of their dog. If the dog is noted at this stage to have some type of pre-existing condition or illness preventing it from fulfilling its role as an assistance dog, a replacement will be provided free of charge.[50]

• K9 Tales will provide ongoing assistance to the handler throughout the working life of the assistance dog (costs may be incurred depending on the assistance required) and will undertake regular assessments to ensure requirements are met in accordance with the GHAD Act.

1. Ms Wegener also gave evidence of the training and bonding process between the handler and assistance dog. K9 Tales takes a flexible approach to this process and, as the Applicant lives in New South Wales and K9 Tales is in Queensland, the Applicant could initially be involved in some of the training by using technology such as video conferencing, and then attend K9 Tales in person when the dog has been part-trained. Ms Wegener stated that training of commands, cues and responses can be taught to a dog without the Applicant being present, and a dog is taught different skills at different stages.

1. In her written and oral evidence, Ms Wegener identified the following tasks an assistance dog can be trained to do that would help the Applicant:
   • alert the Applicant to disassociation and reduce the intensity and durations of dissociations, panic attacks and flashbacks by using "interrupting behaviours such as nudging, licking and/or deep pressure therapy"; [51]
   • alert the Applicant to alarms (for example, fire alarms) and/or hazards (e.g. stopping at roadsides, stairs and escalators;
   • block people from getting close to/ touching the Applicant; and
   • guide the Applicant (for example, find the exit) when she is experiencing increasing levels of anxiety.
2. Ms Wegener explained that an assistance dog is trained to learn a cue (for example, the command "find exit", a raised voice or rapid speech) and respond with interrupting behaviour.[52]
3. Ms Wegener noted that it is not possible to put a "clear number" on the hours an assistance dog would be required to work for the Applicant because an assistance dog spends the entire day with their handler and is always on "standby mode". She observed that this situation is no different to a dog trained to support a hearing or vision-impaired person to respond to alarms or situations at different times of the day and/or night.[53] However, Ms Wegener confirmed that a handler is required to provide their assistance dog with adequate exercise, training, rest and play, and this is usually integrated throughout the day.

1. Evidence relied upon by the Respondent included:
   • the written and oral evidence of Dr Doron Samuell (clinical and forensic psychiatrist);
   • the written and oral evidence of Dr Kersti Seksel (veterinary specialist in animal behaviour); and
   • academic reports commissioned by the Respondent.
2. The Respondent separately commissioned Dr Peter Ashkar (forensic psychologist and clinical neuropsychologist) to review reports and documents related to the Applicant's request for an assistance dog. Written reports dated 30 May 2020 and 1 June 2020 were filed with the Tribunal, however, Counsel for the NDIA told the Tribunal it did not rely on this evidence and provided no oral submissions in relation to these reports. The report dated 1 June 2020 is in evidence, and we proceed to consider it on the basis that Dr Ashkar's opinions are relevant to our decision.

The extent of the support an assistance dog can provide to the Applicant

1. Both Dr Ashkar and Dr Samuell caveated their evidence by stating that they had not met or examined the Applicant, have never had a client diagnosed with dissociative identity disorder and did not have personal knowledge or professional experience in relation to an assistance dog supporting a person with psychiatric conditions.

Evidence of Dr Ashkar (forensic psychologist and clinical neuropsychologist)

1. In the report dated 1 June 2020,[54] Dr Ashkar set out his review of the literature and reports provided by the Applicant, Ms [SB], Ms Wegener and Dr Kersti Seksel. He then opined:

Given the evidence espousing the medical, psychological and functional benefits of companion dogs in people with psychiatric disabilities, it seems reasonable to infer that a trained service dog with unfettered community access will provide benefits over and above those provided by companion dog alone...

[I]t is my view that [the Applicant] will benefit psychologically and functionally with the provision of an appropriately trained service dog over and above that which might be provided by increased human support and a companion dog alone. By extension, it is my belief that a service dog is a reasonable and necessary support for [the Applicant] that should be funded under the NDIS.

Evidence of Dr Samuell (clinical and forensic psychologist)

1. Dr Samuell provided a report dated 4 July 2020 and gave evidence at the hearing. His report referenced documents by the Applicant, Ms [SB], Ms Wegener, and Dr Seksel. In his report, Dr Samuell acknowledged that an assistance animal "may provide [the Applicant] with additional confidence and support to socialise, break down social barriers, reduce some symptoms that are causing her social limitations and improve her level of safety".[55] He then noted there was a "high degree of uncertainty that the provision of an assistance animal will be successful" and opined that "an expert could not confidently advise the tribunal that an assistance dog would provide unqualified benefits" to the Applicant.[56]
2. Dr Samuell reported further that he had undertaken a literature review of academic research and had spoken to researchers at La Trobe University who were involved with research commissioned by the NDIA. However, at the Tribunal hearing, Dr Samuell was unable to refer to any notes from his discussions with any researchers from La Trobe University or identify any academic papers he had read except for the La Trobe University final report in 2016. While Dr Samuell attached an article to his report that is titled Guidelines for Treating Dissociative Identity Disorder;[57] this article does not examine or provide information about whether an assistance dog can provide support to a person with dissociative identity disorder.
3. At the Tribunal hearing, Dr Samuel explained the reason for his opinion that the Applicant could not benefit from an assistance animal is that:

...the literature is silent about the assistance that an assistance dog could give to someone with a dissociative identity disorder... I read the Applicant's statement, she has very diverse alters. Some of the behaviours of the alters are quite risky, and she has engaged in rule breaking. I think there is not much in the way of empirical evidence, not much in the way of literature evidence, to know whether this will be of any assistance at all. That is where my uncertainty comes from...[58]

Evidence of Dr Seksel (veterinary specialist in animal behaviour)

1. Dr Seksel provided a report dated 6 March 2020 and gave evidence at the hearing.
2. At the Tribunal hearing, Dr Seksel said she is not an assistance dog trainer but has relevant experience as a director of Delta Society Australia,[59] is familiar with the general principles regarding the training of guide dogs in Australia, and is qualified to give expert evidence about the psychology of animals. However, Dr Seksel confirmed she has never met the Applicant, is not qualified in the field of human psychology and has no experience in dealing with a person diagnosed with dissociative identity disorder and complex post-traumatic stress disorder.
3. In her report dated 6 March 2020, Dr Seksel wrote that "there is no accepted model or training process for psychiatric dogs in Australia."[60] Dr Seksel then opined that it is possible to train a dog to assist a person with a specific medical or psychiatric disorder (for example, vision impairment or general emotional support) but training a dog for a person with dissociative identity disorder would be "much more difficult" and depend on "many factors".[61] She observed that:

The dog would need to be trained to identify as well as how to respond to each alter. Depending on the number of alters, the behaviour and personality of each alter and how they each respond to the dog as well as other people, the frequency of the appearance of each alter, the training would need to be more specific.

With multiple alters this would become more complex and more difficult. Some alters may respond to the dog's cues happily at times while others may respond with punishment.[62]

1. Dr Seksel outlined her concerns that it was not realistic to expect an assistance dog to respond appropriately to the Applicant's insiders and this could cause stress and anxiety for the dog. She observed that as the Applicant's episodes of dissociation would require an assistance dog to be "available all day and night", the dog would be unable to have "at least 14 hours rest and sleep in a 24 hour period", which is required for the dog to "maintain normal physical and mental functioning."[63]
2. In a supplementary written report dated 18 May 2020, Dr Seksel acknowledged that the Applicant had experienced emotional benefit from [G], but reiterated that she was "unconvinced" that an assistance dog could provide the Applicant with additional benefits.[64] She further opined that providing the Applicant with "an assistance dog with expectations that it will perform the functions she desires...may impact the dog and its welfare".[65]
3. Dr Seksel attached to her report a copy of the RSPCA Australia Position re Assistance Animals (RSPCA Position Statement), which outlines potential welfare issues for assistance dogs:
   • - Selection and breeding: Assistance dogs are selected for particular characteristics such as size, temperament and train ability. For this reason, purebred dogs are often used but this can introduce the risk of inherited disorders that reduce their welfare. It is also important to prevent breeding more dogs than are required and to accurately predict whether young dogs will be successful in their required assistance work as adults.
   • - Rearing and housing: It is essential that assistance dogs are provided with adequate and appropriate socialisation and enrichment opportunities and that they are gradually introduced to unpredictability in their routines.
   • - Training and working: Currently there are no consistent standards or regulatory control of the training of assistance animals or the education of their trainers. There are some state based accreditation systems, but assistance animal training does not need to be provided by an accredited organisation. In addition, there are no enforceable standards for humane, evidence-based training methods. This could place animals at risk of being subjected to poor handling and training techniques.
   • - Abrupt changes to living situation: Some assistance dogs may experience several different living arrangements during their lifetime, which can be highly stressful.
   • - Sources of stress: assistance animals may often work in stressful environments due to noise, crowding, unfamiliar people, and other animals. They also have to cope with unpredictable routines, sometimes with insufficient time to rest, recover, toilet, plague, and socialise with other animals and people when they work for long periods.
   • - Work-related injuries: some of the tasks performed by assistance dogs can cause discomfort and may impose physical strain and eventually lead to injury, particularly if the equipment used for the tasks is poorly designed or inappropriate. Future research is needed to identify the factors that can lead to injury in assistance dogs.
   • - Ageing and retirement issues: when assistance dogs are unable to keep working, they will need to be retired to safeguard the dogs welfare, but this must be carefully planned as changes of routine and loss of their primary human contact/owner are potential sources of stress.[66]

1. Both the Applicant and Respondent relied upon academic articles on research about assistance dogs and persons with psychiatric conditions. A summary of this evidence is below:

1. The Respondent commissioned La Trobe University to undertake a review into the effectiveness of assistance animals in managing impairments other than vision and hearing impairments, noting that the existing evidence for guide and hearing dogs is established. The final report in 2016 made recommendations to the Respondent based on results from a literature review, a provider organisation survey, consultations with assistance animal owners and a health economics analysis.[67]
2. The report concluded:

One of the most important findings to come out of our review of the peer reviewed scientific literature is that the existing evidence base is weak, but generally positive. While nearly all available studies report that [assistance animals] are beneficial, serious methodological limitations abound. These include: lack of controls; generally small sample sizes, with case studies over-represented; and heavy reliance on subjective outcome measures, particularly self-reported methods...

Despite these limitations, [assistance animals] appear to provide benefits for owners from a variety of different impairment cohorts. Based on a review of 64 existing peer-reviewed research articles, it can be concluded that [assistance animals] provide their owners with companionship and emotional support. Additional benefits include improvements in:

• - quality of life
• - independence (including reduce dependence on formal and informal carers)
• - self-esteem
• - social interactions
• - mental health
• - community participation
• - economic engagement
• - perceived physical safety
• - family relationships (for individuals with some psychiatric and developmental disorders).[68] [emphasis added]

1. Recommendations made to the Respondent in the report were:

The decision on whether an [assistance animal] is a reasonable and necessary support should be made at the level of the individual, based on:

(a) the severity and impact of the disability on the person's life,

(b) the specific supports able to be provided by an appropriately selected and trained [assistance animal], which we suggest should be at least three tasks that directly and clearly mitigate the impact of the owner's disability (and thus cost of alternative supports), and

(c) the person's ability to manage the needs of an [assistance animal], either alone or in conjunction with a support system.[69] [emphasis added]

1. Published, peer-reviewed research papers dated post the La Trobe report in 2016 were also filed with the Tribunal. No submissions were made that questioned the validity or veracity of this research, although the Respondent raised questions about the extent to which research on assistance animals and people with post-traumatic stress disorder can be extrapolated to the Applicant's diagnoses of dissociative identity disorder and complex post-traumatic stress disorder.
2. These research papers included four articles that concluded assistance animals may have positive effects on reducing post-traumatic stress indicators in military veterans:
   • Rodriguez et al (2018) concluded an assistance dog may have a "significant positive influence on both physiological and psychosocial indicators of wellbeing".[70]
   • O'Haire et al (2018) concluded the addition of assistance dogs to "usual care may confer clinically meaningful improvements in [post-traumatic stress disorder] symptomology".[71]
   • Bergen-Cico et al (2018) reported military veterans "benefit significantly from dog ownership in combination with a structured dog program"; they experience "significant decreases in stress and post-traumatic stress symptoms", "less isolation and self-judgement" and "significant improvements in self-compassion".[72]
   • Vincent et al (2018) reported their research confirmed the following effects of a psychiatric assistance dog for veterans with post-traumatic stress disorder:
     • decrease in nightmares and improvement in sleep;
     • decrease or interruption of post-traumatic symptoms such as cognitive intrusions, avoidance, alternations of mood, intrusive thoughts, and hyperarousal;
     • decrease in depressive symptoms;
     • improvement in quality of life (physical health, environment, social relationship, psychosocial);
     • improvement in social integration in the community, and comfort in public and commercial places.[73]
3. Other relevant research filed included:
   • Research by the University of Melbourne in 2019 about how assistance dogs, that are permitted to accompany their owners into public places where a pet dog would not be allowed, may improve the quality of life for people with younger onset dementia. This research reported benefits that included:
     • increased independence with participants as they were more confident to stay at home alone or take short walks without a carer;
     • increased engagement in exercise and physical activity; and
     • a regained sense of responsibility.[74]
   • Grovrok et al (2019) examined assistance dogs' and companion dogs' perceived ability to contribute to "thriving" in persons with and without a disability.[75] Thriving was measured by ten indicators: development of skills/talents, discovery of self and life purpose, accumulation of wisdom, development of core strength, positive view of oneself, positive view of others, movement toward full potential, relationship growth/prosperity, psychological health and physical health. The research concluded:

Overall, dogs are perceived to provide support that improves their handler/owner's ability to thrive. Most importantly, however, assistance dogs may provide greater support than companion dogs for persons with a disability and, therefore, may be worth the additional time and financial cost.[76]

G. WEIGHT TO BE GIVEN TO THE VARYING OPINIONS AND FINDINGS OF FACT

1. The Applicant was a credible and impressive witness of truth and we accept her evidence. She gave her evidence in a candid and straightforward manner. Where relevant, the Applicant's evidence was verified in part by written and oral evidence of her treating clinical psychologist, allied health professional reports, veterinary reports/reference and the written statement by her daughter. We accept the Applicant's evidence and the evidence of Dr AH (veterinarian), Ms SB (treating clinical psychologist), Dr HR (general practitioner), Mr RC (occupational therapist) and the Applicant's daughter.
2. Ms Wegener provided detailed, knowledgeable and credible evidence about K9 Tales and the processes undertaken by K9 Tales to assess a person's suitability for an assistance dog and train an assistance dog for a person with psychiatric impairment. We accept her evidence.
3. The conclusions and opinions in the reports of Dr Ashkar and Dr Samuell varied substantially: Dr Ashkar opined the Applicant will "benefit psychologically and functionally" from an assistance dog; and Dr Samuell opined there was a "high degree of uncertainty" an assistance dog would provide "unqualified benefits" to the Applicant.
4. Having considered the evidence, we give less weight to the opinions expressed by Dr Ashkar and Dr Samuell. The evidence of both Dr Ashkar and Dr Samuell was based on written statements by the Applicant, written reports by Ms [SB], Ms Wegener and Dr Seksel and their own review of the academic literature. Neither Dr Ashkar or Dr Samuell have met or examined the Applicant, treated a client diagnosed with dissociative identity disorder, have personal knowledge or professional experience in relation to an assistance dog supporting a person with psychiatric conditions or have provided comprehensive explanations for the basis of their opinions.
5. We place limited weight on the opinion of Dr Samuell in relation to the literature because his oral evidence to the Tribunal showed he had not read any of the research articles filed with the Tribunal except for the La Trobe University report in 2016.
6. In assessing the weight to be given to the evidence of Dr Seksel regarding the tasks an assistance dog would be able to undertake for the Applicant, we take into account that she is not a dog trainer, has no personal experience training assistance dogs, and has no knowledge about the process of becoming accredited as a trainer of assistance dogs under the GHAD Act. Dr Seksel is a veterinary specialist in animal behaviour and, as such, is qualified to provide expert evidence about animal behaviour and well-being. However, she is not qualified to give evidence about the behaviour of the Applicant and insiders.
7. We place less weight on concerns by Dr Seksel about the potential harm the Applicant may cause to an assistance dog. Dr Seksel has not met the Applicant and has no qualifications or expertise in human psychology. Also, she has made assumptions about the Applicant and the insiders that are not consistent with the extensive evidence that neither the Applicant nor the insiders have ever displayed violent or aggressive behaviour and have always had positive and caring interactions with her dogs.
8. On this basis, we make the following findings of fact:
   • The Applicant's experiences with support workers undermine her goal of independence, and support workers (through human touch) may trigger the Applicant to dissociate.
   • The Applicant has a long and positive history of dog ownership and neither the Applicant nor any of the insiders have ever harmed or displayed aggressive behaviour towards dogs.
   • An assistance dog will increase the Applicant's independence as it can accompany the Applicant in public places; an assistance dog will be able to perform tasks that will ease the Applicant's distress after episodes of dissociation, panic attacks, flashbacks, night terrors, nightmares, depersonalisation and derealisation.
   • The Applicant's expectations of an assistance dog are pragmatic; she does not expect an assistance dog to "fix" her dissociative identity disorder.
   • K9 Tales is a certified assistance dog training institution under the GHAD Act in Queensland and has thorough procedures to screen and assess potential handlers, to breed and train assistance dogs, and to match and train handlers with assistance dogs.
   • K9 Tales will not place a dog with a handler until the public access test has been passed.
   • The legal ownership of, and responsibility for, an assistance dog is assumed by the handler at official handover, when the dog is aged approximately two years old.
   • An assistance dog owned by the Applicant would not be required to work hours that are significantly different to those required of any other assistance animal such as a guide dog or hearing dog.
   • The Applicant's lifestyle or insiders would not cause harm to an assistance dog.
   • K9 Tales has successfully placed assistances dogs with persons with mental health or psychosocial issues in the past.
   • We take into account the potential welfare issues for assistance dogs as outlined in the RSPCA Position Statement - issues relating to animal welfare must always be considered in applications such as the one before us.
   • There is no evidence of any welfare issues with the breeding, rearing, housing, training and/or working of an assistance dog that is applicable to the circumstances of the Applicant, Ms Wegener or the business of K9 Tales_._
   • We are satisfied that the Applicant would not subject an assistance dog to any unnecessary changes in living arrangements and that she would not deliberately or carelessly subject the animal to stress or injury. Based on the evidence of the Applicant and her treating clinical psychologist we find that the Applicant lives a quiet lifestyle. We are not satisfied that the Applicant and/or her insiders would create any greater stress for an assistance dog than that which would be experienced by a dog trained to assist a person with vision or hearing impairment.
9. We make no findings of fact regarding the level of human support which the Applicant will require. This is not a matter before us. However, we are satisfied on the balance of probabilities that an assistance dog will reduce the Applicant's need for human support to the extent that the provision of an assistance animal represents value for money. We discuss further our finding in this regard later in these reasons.
10. We make the following findings of fact in relation to the academic research and articles:
    • Research articles provided to the Tribunal have been peer-reviewed and published; we therefore accept the validity and veracity of this research regarding the support assistance dogs can provide persons with psychiatric impairment/s.
    • Research articles published post-2016 consistently acknowledge there is a gap in the literature/research regarding longitudinal and follow up studies, this is consistent with the conclusion in the La Trobe University report in 2016 that the "existing evidence base is weak but generally positive".
    • Research post-2016 primarily focuses on the support of assistance dogs to reduce post-traumatic stress disorder symptoms in military veterans; nonetheless, we accept the relevance of this research based on the evidence of Ms [SB] that episodes of dissociation are a symptom of post-traumatic stress disorder.
    • We accept that diagnoses of dissociative identity disorder are relatively rare and, consequently, research with significant sample sizes, as would occur for people with vision or hearing impairment, is not able to occur.

1. The sole issue for determination is whether funding for an assistance dog for the Applicant is a reasonable and necessary support in accordance with subsection 34(1) of the NDIS Act.
2. We note the Respondent accepts the Applicant meets the requirements in paragraphs 34(1)(e) and 34(1)(f). We are satisfied on the evidence before us that this is an appropriate concession. Consequently, we do not address these requirements in our consideration of whether subsection 34(1) of the NDIS Act is met.
3. We further note that the NDIA does not dispute the Applicant's diagnosis of dissociative identity disorder and complex post-traumatic stress disorder, her current treatment, or her functional capacity in relation to her circumstances and social isolation.
4. In our consideration below, we have regard to Mortimer J's decision in McGarrigle v National Disability Insurance Agency, which provides the following guidance to assess "reasonable and necessary supports" in the NDIS Act:

Whether a support is "reasonable" requires a different assessment to whether a support is "necessary". Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO's assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word "reasonable" would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase "reasonable and necessary supports"...

In my opinion, the text and context of s 33(5)(c), read with s 34(1) indicates that the CEO (or the delegate or Tribunal) must either be satisfied that a support has the character of being a reasonable and necessary support, or that it does not. Once a support is identified and described...then the question for the CEO (or the delegate or Tribunal) is whether she or he is satisfied that support, as identified, is reasonable and necessary for that particular participant...That determination can only be made on the basis of probative evidence.

Once a decision is made that the support...is reasonable and necessary, then subject to the other requirements in s 33(5) and s 34, the scheme requires and contemplates that support "will" be funded. In my opinion, that can only mean wholly or fully funded.

The subject matter of the CEO's approval in s 33(2)(b) is the reasonable and necessary supports that "will" be funded**. The language is imperative, and in my opinion this is consistent with the Applicant's contention that the relevant gateway established by the legislative scheme is whether the support is "reasonable and necessary", and once through that gateway, the scheme intends the support will be fully funded**...[77] [emphasis added]

Paragraph 34(1)(a) of the NDIS Act: will the support assist the Applicant to pursue the goals, objectives and aspirations included in her statement of goals and aspirations?

1. Part 10.3 of the Planning Guideline reiterates the requirement of paragraph 34(1)(a) of the NDIS Act and states that the NDIA "must be satisfied that the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations". This Guideline further notes that:

This 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...

It is important to note that the NDIA does not need to be satisfied that the funding, or provision of a support, will specifically result in the achievement of a participant's goals, objectives and aspirations. Rather, the support simply needs to assist (i.e. aid, support or contribute) the participant to achieve their goals. [emphasis added]

1. The Assistance Animal Operational Guideline further states at part 14.4:

To meet this criterion, the NDIA needs information and evidence confirm how the assistance animal will assist the participant to work towards and/or achieve their functional goals, objectives and aspirations identified in their plan.

1. The goals of the Applicant set out in her NDIS plan that commenced on 31 October 2018 included:

During this plan: To increase my independence with daily living

My longer term goals and aspirations are: ...

To rely less on support staff with an assistance dog so I can have more choice and control in my life.[78]

1. We now consider whether there is evidence to show the support of an assistance dog will assist the Applicant to pursue her goals, objectives and aspirations.
2. As set out in the Applicant's NDIS plan, she is seeking the support of an assistance dog to increase her independence and reduce her reliance on support workers to undertake tasks and leave her home.
3. Based on the evidence and our findings of fact, we are satisfied that an assistance dog can be trained to undertake the following tasks:

When the Applicant is not experiencing a dissociative episode:

• allow the Applicant to leave her home unaccompanied by support workers;
• prevent/ block unseen or unexpected human touch that would cause the Applicant to dissociate.

When the Applicant is experiencing a dissociative episode:

• alert the Applicant and her insiders to hazards or alarms;
• stay with the Applicant when she dissociates and provide physical/ emotional comfort (nudging, licking, deep pressure therapy) that a support worker cannot provide because human touch triggers the Applicant to dissociate.

After the Applicant experiences a dissociative episode:

• lead the Applicant to a safe and quiet place after dissociation;
• stay with the Applicant so she can focus on something familiar and lower her stress and anxiety;
• reduce the Applicant's confusion after dissociation and alert her to forgotten or dropped belongings.

1. We are satisfied that an assistance dog that is assessed to pass the public access test and can perform at least three of these tasks (consistent with the definition of an assistant animal in the Assistance Animal Operational Guideline) would assist the Applicant to be more independent and less reliant on support workers.
2. At this point, we address the question of whether the Applicant's expectations of an assistance dog are realistic, noting that this appeared to be a recurrent concern of the NDIA during the hearing. As set out in our findings of fact, we are satisfied on the evidence of the Applicant, Ms [SB], Ms Wegener and the literature, that an assistance dog will increase the Applicant's independence. We make this finding noting that the Applicant is currently unable to leave her home without a support worker.
3. Consistent with part 10.3 of the Planning Guideline, we are satisfied that the support of an assistance dog shows a clear and direct link to the goals of the Applicant as set out in her NDIS plan that commenced on 31 October 2018.
4. As required by part 14.4 of the Assistance Animal Operational Guideline, we are satisfied the Applicant has provided the NDIA with evidence that confirms how an assistance dog will assist the Applicant to pursue the goals and aspirations identified in her NDIS plan that commenced on 31 October 2018.
5. We find the requirement in paragraph 34(1)(a) of the NDIS Act is met in respect of the Applicant's request for funding for an assistance dog.

Paragraph 34(1)(b) of the NDIS Act: will the support assist the Applicant to undertake activities, so as to facilitate her social and economic participation?

1. Part 10.4 of the Planning Guideline states that this requirement is consistent with the objects of the NDIS Act and notes that:

Whether or not the funding, or provision of a support itself, will facilitate a participant's social and economic participation is not the test. Rather, the NDIA must be satisfied that the funding, or provision of a support, will assist the participant to undertake activities which will facilitate their social and economic participation. [emphasis in original]

1. Part 14.4 of the Animal Assistance Operational Guideline states:

To meet this criterion, the NDIA needs information and evidence confirming the following:

• - the participant's current level of function and any barriers to social and economic participation; and
• - how the assistance animal will assist in overcoming these barriers.

1. We now consider the requirement in paragraph 34(1)(b) of the NDIS Act, noting the Planning Guideline and Animal Assistance Operational Guideline set out that we must be satisfied the support of an assistance dog will assist the Applicant to undertake activities to facilitate her social and economic participation.
2. Our findings of fact from the evidence show the Applicant is currently unable to leave her home without the assistance of support workers. Due to her impairments of dissociative identity disorder and complex post-traumatic stress disorder, the Applicant experiences extreme social isolation.
3. As set out above, we are satisfied an assistance dog will be able to complete tasks that will assist the Applicant to undertake activities, including leaving her home without a support worker at a time of her choosing, that will facilitate her social and economic participation.
4. We are satisfied the requirement in paragraph 34(1)(b) of the NDIS Act is met.

Paragraph 34(1)(c) of the NDIS Act: does the support represent value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support?

1. Rule 3.1 of the Support Rules sets out the matters to be considered in deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support. The matters relevant to this application are:

(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;

(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;

(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);

(e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;

(f) whether the support will increase the participant's independence and reduce the participant's need for other kinds of supports (for example, some home modifications may reduce a participant's need for home care). [emphasis added][79]

1. The Planning Guideline at part 10.5 further notes that the "NDIA is considerate of the fact that funding supports that do not represent value for money has the potential to undermine the financial sustainability of the NDIS".
2. The Assistance Animals Operational Guideline at part 14.4 sets out:

To meet this criterion, the NDIA needs information and evidence confirming the following:

• - the functional outcomes to be achieved through the use of the assistance animal;
• - the long term benefit of the assistance animal (for example a guide dog is expected to have a working life of approximately 8 years);
• - other supports which may achieve the same outcome, such as assistive technology, therapy supports, a behaviour support plan and/or a self-funded companion animal; and
• - how the assistance animal will reduce the need for other supports and over what time period (e.g. a few months, several years etc.).

An animal can have significant therapeutic benefits for people, including participants. However, the report must explain how the assistance animal will benefit the participant over and above that of a companion animal.

1. Based on the evidence before the Tribunal, we find the only possible comparable supports for the Applicant are:
   • support workers; and
   • a companion or pet dog.
2. In respect of the above comparable supports, we note neither is necessarily comparable as both supports do not assist the Applicant to achieve the same outcome. As set out above, the Applicant has found that support workers undermine her goal of independence and may through human touch unintentionally trigger the Applicant to dissociate. Further, in respect of companion or pet dogs and as set out above, a companion or pet dog cannot accompany the Applicant in public places such as shops, restaurants, public transport and medical appointments. A pet dog can provide emotional support but is not trained to undertake the tasks of an assistance dog.
3. We note the Applicant's submissions and calculations that having the support of an assistance dog will reduce her need for support workers. While we accept the Applicant's evidence, we note that there is no absolute certainty about the number of support worker hours the Applicant may require if she has an assistance dog. We further note the evidence of Ms [SB] that it would be expected the Applicant's need for support workers would decrease and her independence will increase as she develops a relationship with the assistance dog.
4. As set out at paragraph [35], the Applicant is currently funded for 18 hours per week for support workers at an annual cost of $50,824.80 (the current support worker hourly rate is $54.30). The cost of a fully trained and qualified assistance dog from K9 Tales is $33,000. We calculate that if the Applicant reduces her need for support worker hours to 11 hours per week, in the first year alone, she will have reduced her cost of funding of supports from the NDIS. As stated above, we do not however make any conclusive finding as to the amount of support worker hours required by the Applicant, only that we are satisfied on the balance of probabilities and the available evidence that an assistance dog will reduce the Applicant's need for support workers and that this will ultimately reflect value for money.
5. Weighing the considerations in rule 3.1 of the Support Rules and part 14.4 of the Animal Assistance Guideline, we are satisfied that funding for an assistance dog for the Applicant represents value for money and is reasonable in view of the benefits achieved by the Applicant and the costs of alternative support. We make this finding noting that there are limitations to the other available comparable supports [see paragraph 125].
6. Having regard to part 10.5 of the Planning Guideline (and the requirement in paragraph 3(3)(b) of the NDIS Act) about the need to ensure the financial sustainability of the NDIS, we note that:
   • there is likely to be a significant saving in the cost of providing human support to the Applicant over the life of an assistance animal;
   • it is likely that there will be very few NDIS participants in the circumstances of the Applicant;
   • there was no evidence provided by the NDIS Actuary regarding the effect of funding an assistance dog on the long-term financial sustainability of the NDIS.
7. We are satisfied the support of an assistance dog for the Applicant meets the requirements of paragraph 34(1)(c) of the NDIS Act.

Paragraph 34(1)(d) of the NDIS Act: will the support be, or likely to be, effective and beneficial having regard to current good practice?

3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:

(a) published and refereed literature and any consensus of expert opinion;

(b) the lived experience of the participant or their carers; or

(c) anything the Agency has learnt through delivery of the NDIS.

3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary, seek expert opinion.

1. Part 14.4 of the Assistance Animal Operational Guideline provides:

To meet this criterion, the NDIA needs information and evidence confirming the following:

• - best-practice interventions that have been used or trialled and how effective they are;
• - how the assistance animal will perform at least three tasks that the participant is unable to do;
• - pre- and post-trial outcome measures and/or lived experience;
• - how the outcomes are a direct result of the assistance animal;
• - the assistance animal has completed relevant training, and been assessed as suitably qualified as an assistance animal; and
• - how the assistance animal has been assessed as suitable for the participant.

1. We have considered the extensive evidence filed with the Tribunal, which includes recent research. As set out in our findings of fact in part G of these reasons, we are satisfied the funding of an assistance dog for the Applicant will be of benefit the Applicant and will be, or is likely to be, effective and beneficial having regard to current good practice.
2. We are satisfied that funding for an assistance dog for the Applicant meets the requirement in paragraph 34(1)(d) of the NDIS Act.

Part 5 of the Support Rules: are the general criteria for funding supports met?

1. Part 5 of the Support Rules establish general criteria for funding supports and the supports that will not be funded or provided:
   • Rule 5.1(a) sets out that a support will not be funded under the NDIS if it is likely to cause harm to the participant or pose a risk to others.
   • Rule 5.3(a) requires that a support funded under the NDIS must be consistent with Commonwealth and State/Territory laws.
2. Part 14.3 of the Assistance Animal Operational Guideline states:

Before funding a support, the NDIA must make sure all the criteria in Part 5 of the 'Supports for Participants' Rules are met. Specific considerations for Rule 5.1(a) and 5.3(a) are set out below.

A support will not be provided or funded under the NDIS if it is likely to cause harm to the participant or pose a risk to others (Rule 5.1(a))...

A support will not be provided or funded under the NDIS where it would be contrary to a law of the Commonwealth or the State or Territory in which the support would be provided (Rule 5.3(a)).

To meet this criterion, the NDIA needs information and evidence confirming the following:

• - the assistance animal can legally access public spaces and venues required by the participant (i.e. the assistance animal has passed a Public Access Test); and
• - the identity of the person who will be legally responsible for the wellbeing and safety of the assistance animal.

1. As set out in our findings of fact in Part G, we are satisfied that the Applicant will be able to care for an assistance animal in her home.
2. The evidence of Ms Wegener is that K9 Tales will not place an assistance animal with the Applicant until the public access test has been passed.
3. We are satisfied that funding an assistance dog for the Applicant is consistent with the requirements in part 5 of the Support Rules and part 14.3 of the Assistance Animals Operational Guideline.

Part 14.6 of the Assistance Animals Operational Guideline: will the NDIA provide funding to train a dog before it has become a qualified assistance animal?

1. Part 14.6 of the Assistance Animal Operational Guideline sets out the following:

La Trobe University completed a study 'NDIS participant-trained assistance dogs' in relation to the training of assistance dogs. Based on these findings the NDIA will generally not provide funding for a dog before it has become a qualified assistance animal.

The study found:

• - not all dogs who undertake training go on to successfully qualify as an assistance animal; and
• - there is no reliable way to predict if a particular dog will successfully qualify as an assistance animal before it has completed its training.

Therefore, it is unlikely the dog will meet the following reasonable and necessary criteria:

• - 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 alternate support (34(1)(c));

As it is not possible to guarantee the dog will successfully complete the training, the value for money criteria will not be met.

• - the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice (34(1)(d)); or

As the dog may not complete training the NDIA is unable to state the animal will be beneficial or effective as the dog may not address the participant's functional impairments.

• - the funding or provision of the support takes into account of what is reasonable to expect families, carers, informal networks and community to provide (34 (1) (e)).

Funding a dog that has not successfully completed assistance animal training is no different to providing a companion animal (e.g. pet). It is reasonable to expect that individuals/families would self-fund a companion animal.

Based on this evidence, the NDIS does not provide funding for a participant to train their own dog to be an assistance animal. This also applies if a registered assistance animal provider is engaged to train the dog, as not all dogs go on to successfully qualify as an assistance animal.

For the same reasons, the NDIS does not fund a provider to supply a dog as an NDIS support until they are fully trained and qualified assistance animals.

1. In closing submissions, Counsel for the Respondent identified that an issue in dispute was whether funding for a "potential" assistance dog is consistent with the Assistance Animal Operational Guideline. It was put that the issue is "whether now, a dog that [the Applicant] may have in two years' time, and that may or may not succeed in being trained to achieve the things that the evidence has addressed" is a reasonable and necessary support in the context of a general 12 month plan.[80]
2. This argument must be rejected. It is clear that K9 Tales is willing to contract to provide a trained assistance dog at a future time. There is no suggestion that it will provide a dog at the beginning of the contract period and persist with training that particular dog regardless of its ability to perform the tasks required of an assistance animal. If a selected dog cannot be fully trained, substitute animals will be provided by K9 Tales as required.
3. We also note that part 4.6 of the Assistance Animal Operational Guideline is not consistent with the La Trobe University report (2016), which recommended:

The decision on whether an assistance animal is a reasonable and necessary support should be made at the level of the individual, based on:

(a) the severity and impact of the disability on the person's life,

(b) the specific supports able to be provided by an appropriately selected and trained [assistance animal], which we suggest should be at least three tasks that directly and clearly mitigate the impact of the owner's disability (and thus cost of alternative supports), and

(c) the person's ability to manage the needs of an [assistance animal], either alone or in conjunction with a support system.

1. The evidence of Ms Wegener (which we accept) is that an assistance dog is trained specifically to provide the supports required by the handler (in this case, the Applicant). Similarly to a contract to create a prosthetic limb or to carry out house renovations to ensure accessibility, an assistance animal is trained specifically to a person's impairment and support needs. If we followed the logic of the Respondent and Part 4.6 of the Assistance Animal Operational Guideline, no-one would have an assistance animal funded by the NDIS.
2. The issue of the quote by Ms Wegener and K9 Tales was raised by the Respondent in closing submissions and consequently, there was limited opportunity for this to be addressed by the Applicant. However, we understand that K9 Tales requires a 10% deposit and installments would be made with the full amount to be paid on handover (when the assistance dog has passed the public access test). This quote/process would be subject to the usual contractual requirements of the NDIA.
3. Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[81] requires the Tribunal to apply government policy unless there is good reason not to do so. It is our view that the provisions of the Assistance Animal Operational Guideline are internally inconsistent (Part 4.6 does not appear to be consistent with Parts 4.1-4.5). Part 4.6 of the Assistance Animal Operational Guideline is also not consistent with the objectives and principles of the NDIS Act, or the provisions of section 34(1). In this matter we do not follow the Policy referred to.
4. We find support for our position in TYKL and National Disability Insurance Agency[82] where Member Buxton said:

The Tribunal is to consider firstly the provisions of the NDIS Act and the Rules, then, if not inconsistent, will consider the Operational Guidelines. There appears to be an internal inconsistency within Part 14 of the Operational Guidelines, as Clause 14.2 makes clear that the training of an animal can be funded, and Clause 14.6 appears to state that an animal cannot be funded until it is trained. The effect of this appears to be an expectation that a source outside the scheme is responsible for funding a support, which would defeat the purpose of the statutory scheme. Very clear and consistent language would be needed in order to give effect to such an unlikely outcome, and one which is inconsistent with both the principles of the scheme and the express functions granted to the Respondent under that scheme. Section 34 is inclusive in its approach to supports that are reasonable and necessary. Further, the Act requires a flexible, tailored and appropriate response to each participant's needs. Therefore, it is difficult to reconcile the binding provisions of the NDIS Act with this inconsistent and confusing aspect of the Operational Guidelines.

...

Clause 14.6 of the Operational Guidelines is subject to the word "generally", indicating that there may be particular cases where an individual would require funding before the assistance dog was fully trained. The Tribunal observes that the compelling factual case in support of the Applicant's need for an assistance dog, together with the absence of any alternative proposal for funding the training of such a dog, combine to take this case outside the ordinary run of cases such that it would not be appropriate to apply any limitation sought to be imposed by Clause 14.6.

Taking into consideration all of the matters canvassed above, the Tribunal finds the aspects of the Operational Guidelines to which reference has been made, insofar as those guidelines suggest a limitation on the timing of funding for training of an assistance animal, to be inconsistent with the Rules or the NDIS Act. It is unclear, in any event, that those parts of the guidelines were intended to apply to training of assistance animals other than by participants. The Tribunal will not, therefore, have regard to those parts of clause 14.6 of the Operational Guidelines that seek to limit the mechanism for funding under consideration.

1. For the reasons set out above, we are satisfied that funding for an assistance dog for the Applicant meets the requirements of reasonable and necessary supports in subsection 34(1) of the NDIS Act.

1. The Tribunal decides that:
   • the reviewable decision made by the National Disability Insurance Agency on 12 July 2019 is set aside; and
   • pursuant to subsection 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the matter is remitted to the National Disability Insurance Agency with the direction that funding for an assistance dog for the Applicant is a reasonable and necessary support in accordance with subsection 34(1) of the National Disability Insurance Scheme Act 2013 (Cth).

I certify that the preceding 149 (one hundred and forty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance, Dr L Bygrave, Member

..................................[SGD]......................................

[2] [1979] AATA 179; (1979) 2 ALD 634.

[3] Assistance Animals Operational Guideline, part 14.1. This definition is discussed in recommendations made in La Trobe University, Final Report to the National Disability Insurance Agency, Key terms for animals in disability assistance roles: definitions and literature review (7 August 2019). Exhibit R2-A40, page 699.

[5] Although extensive details about the Applicant's history were provided to the Tribunal, we decided to not disclose further details to ensure the privacy of the Applicant and her children.

[7] Exhibits R1-T4B, page 34 and R2-A50, page 836.

[8] Transcript of proceedings oral evidence of Ms [SB], 3 December 2020, page 85.

[20] Transcript of proceedings oral evidence of the Applicant, 1 December 2020, page 27.

[22] Transcript of proceedings oral evidence of the Applicant, 1 December 2020, page 33.

[23] Transcript of proceedings oral evidence of the Applicant, 1 December 2020, page 34.

[24] Transcript of proceedings oral evidence of Ms [SB], 3 December 2020, pages 106-107.

[30] Transcript of proceedings oral evidence of the Applicant, 1 December 2020, 32.

[31] Exhibit R2-A35, pages 531-532 and transcript of proceedings oral evidence of the Applicant, 1 December 2020, page 26.

[35] Transcript of proceedings oral evidence of Ms [SB], 3 December 2020, page 89.

[40] Transcript of proceedings oral evidence of Ms [SB], 3 December 2020, pages 106-107.

[41] This number is based on the Applicant needing support workers for six hours per week for the first three months to help her to complete tasks with the assistance dog for the first time and a further 12 hours of funding for support workers in case of emergencies.

[43] Exhibits R2-A74, page 1457 and R2-A75, page 1459.

[47] Exhibit R2-A11, page 382 and Exhibit R2-A26, page 509.

[54] As noted in paragraph 71, Dr Ashkar provided two reports. The report dated 1 June 2020 appears to be an updated version of the report dated 30 May 2020.

[56] Exhibit R2-A68, pages 1346 and 1348.

[57] See Exhibit R2-A68. International Society for the Study of Trauma and Dissociation (2011), Guidelines for Treating Dissociative Identity Disorder in Adults, Third Revision, Journal of Trauma & Dissociation, 12:2, 115-187.

[58] Transcript of proceedings oral evidence of Dr Samuell, 4 December 2020, page 190.

[59] Delta Society Australia is an organisation that provides training for, and assessment of, therapy dogs trainers.

[67] See Exhibit R2-A38. La Trobe University, Department of Psychology and Counselling, Final Report to the National Disability Insurance Agency (30 September 2016), Reviewing Assistance Animal Effectiveness: Literature review, provider survey, assistance animal owner interviews, health economics analysis and recommendations.

[70] Exhibit R2-A57, page 1134: Rodriguez et al, "The effect of a service dog on salivary cortisol awakening response in a military population with posttraumatic stress disorder" (PTSD) (2018) Psychoneuoendocrinology.

[71] Exhibit R2-A58, page 1143: O'Haire and Rodriguez (2018) "Preliminary Efficacy of Service Dogs as a Complementary Treatment for Posttraumatic Stress Disorder in Military Members and Veterans", Journal of Consulting and Clinical Psychology.

[72] Exhibit R2-A59, page 1153: Bergen-Cico et all (2018) "Dog Ownership and Training Reduces Post-Traumatic Stress Symptoms and Increases Self-Compassion Among Veterans: Results of a Longitudinal Control Study", The Journal of Alternative and Complementary Medicine.

[74] Exhibit R2-A52, page 1034: "Assistance Dogs: An investigation into how they might improve the quality of life of people with Younger Onset Dementia" (2019).

[75] See Exhibit R2-A6. Gravrok et al (2019) "Thriving through relationships: assistance dogs' and companion dogs' perceived ability to contribute to thriving in individuals with and without a disability", Disability and Rehabilitation: Assistive Technology.

[77] [2017] FCA 308 at [91], [93-95].

[79] We note that paragraph (d) is not relevant to this application because it refers to supports that involve the provision of equipment or modifications.

[80] Transcript of proceedings, Respondent's closing submissions, 5 December 2020, pages 225-226.

[81] [1979] AATA 179; (1979) 2 ALD 634.

[82] [2021] AATA 135.