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Tribunal: Deputy President Katherine Bean

The applicant requested a review of her participant plan under the National Disability Insurance Scheme (NDIS). National Disability Insurance Agency (NDIA) varied the plan to provide supports of $62,172.91. The applicant applied to the Administrative Appeals Tribunal for a review of the varied plan. On 6 March 2018, the Tribunal varied the plan to include funding for a range of additional supports.

The applicant was an 11 year old girl who suffered from blindness, epilepsy and cognitive impairments. She had been in the care of her foster mother since July 2016. Following the application for review, NDIA and the applicant came to an agreement on some of the additional supports. The Tribunal considered the remaining areas of disagreement and whether additional supports were required in any or all of the areas.

Section 34(1) of the National Disability Insurance Scheme Act 2013 (the Act) provides that, for the purposes of finding the reasonable and necessary supports that will be funded under the scheme, the decision maker must be satisfied of a number of requirements. The Tribunal accepted that the decision maker 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 decision maker is whether they are satisfied that support, as identified, is reasonable and necessary for that particular participant. It may be open to the decision maker to be satisfied that a differently identified support is reasonable and necessary. That determination can only be made on the basis of probative evidence. Within this context, the Tribunal considered the areas of additional support sought in this matter.

Support coordination: The applicant sought funding for 208 hours of extra support over the course of the year. The Tribunal found that due to the complexity and changing nature of the applicant’s needs, and the level and variety of supports she requires, it was clear that a high level of support coordination was required, including a high level of liaison with her school. The Tribunal was also conscious of the risk that inadequate support coordination would add to the already enormous workload of the applicant’s foster mother. NDIA accepted that coordination of supports was appropriately funded by the NDIS and they gave no reason to why a lesser amount should be allowed for this than the amount included in the applicant’s original plan. The Tribunal decided the plan should be varied to restore the level of support coordination contained in the applicant’s original plan as they were satisfied that this level of support coordination was reasonable and necessary for the applicant.

Increased social and community participation: The applicant sought funding for two support workers to take the applicant to the pool for five hours per week. The respondent’s position was that that level of support was not required. The Tribunal was satisfied that, from the point of view of the applicant’s physical and social well-being, it was highly beneficial for the applicant to attend the pool. The Tribunal formed the view that because of the benefits it would yield to the applicant, together with a degree of essential respite for her foster mother, this level of support represents value for money, was likely to be beneficial to the applicant and would facilitate her social participation. It would also assist the applicant to meet longer-term goals, in particular increased participation in community activities. The Tribunal was satisfied that the support was both necessary and reasonable for the applicant.

Core supports: With respect to the issue of respite care, the Tribunal was satisfied that it was essential to the maintenance of the applicant’s current care arrangements that her foster mother have access to seven days of respite every six weeks. The Tribunal was satisfied that if this was not provided, it was probable that the applicant’s foster mother would not be able to continue caring for the applicant. This would likely have an extremely negative impact on the applicant and increase the impact of her disabilities. As the applicant’s foster mother explained in her evidence, the applicant cannot participate in the usual respite arrangements that apply to children in foster care. Because of her significant disabilities, difficult behaviours and complex needs, when her foster mother was not available to care for her, she must be placed in disability-supported accommodation on a temporary basis. The Tribunal was satisfied that this expense was attributable to the applicant’s disabilities, was not more appropriately funded as part of a universal service obligation and therefore must be met as a reasonable and necessary support under the NDIS.

The applicant also sought an extension to her plan. However, noting the applicant’s complex and changing needs and the Tribunal’s limited powers to conduct a comprehensive review of her needs, the Tribunal declined to extend the plan. The Tribunal considered it appropriate for the plan to be reviewed by the respondent in May according to the existing schedule.

Read the full written decision on Austlii.