Tribunal: Senior Member Josephine Kelly
The applicant was originally granted access to the National Disability Insurance Scheme (‘NDIS’) from 2 September 2015. She subsequently sought additional funding for full-time care, which involved personal care support for 24 hours a day, seven days a week. The National Disability Insurance Agency (the ‘NDIA’) granted the applicant eight hours active assistance at daytime and eight hours active assistance at night time, seven days a week. The Tribunal set aside that decision and substituted another.
The 13 year old applicant has various medical conditions that leave her fully dependant on carers for needs, including mobility, toileting, hygiene and feeding. She has significant difficulties in communicating. Her mother (the ‘mother’) has been her primary carer father and her (the ‘father’) works to financially support the family. The applicant has two younger siblings.
The National Disability Insurance Scheme Act 2013 (the Act) requires that supports funded under the NDIS must be reasonable and necessary. Section 34(1) of the Act provides criteria for determining whether a support is reasonable and necessary. The criteria relevant to this matter concerned what support was reasonable for the family to provide and to determine the support most appropriately funded through the NDIS. The NDIA accepted that the applicant required full-time care, but argued that the NDIS was not responsible for funding the full amount of care.
The applicant’s mother provided a variety of reasons why full time care should be funded. The mother was the primary carer for two younger school-aged children and claimed she needed to also raise them and care for their needs. The mother claimed that she provided non-direct personal care support to the applicant by supervising, managing, and co-ordinating her care. The mother also claimed the applicant requires two carers for a variety of her needs, including transport to hospital for appointments, and when she is unwell and her care needs increase.
The Tribunal accepted the NDIA’s submission that the NDIS is not a replacement for family support, and that there was no expectation that it should cover all the needs of a person. It is normal for parents to provide substantial care and support for children. The Tribunal had to determine what support was reasonable for the applicant’s family to provide to her, taking into account her and their particular circumstances.
The difficulty the Tribunal had in this case was that the mother’s evidence was central to its findings and it found her evidence to be unreliable. She communicated on behalf of the applicant but there were inconsistencies between her claims and records made prior by carers of the applicant. The mother’s evidence about the father’s work commitment was inconsistent and there was no objective documentary evidence about the father’s employment before the Tribunal. The Tribunal did not accept the mother’s claims that the father did not or could not provide personal care for the applicant. The Tribunal accepted that caring for the applicant was demanding for each of the other family members, and in particular for the mother.
The Tribunal concluded that it was reasonable for the applicant’s family to provide six hours personal support care a day. The Tribunal found that it was reasonable and necessary to provide the following funding for the applicant’s care and community access:
Up to eight hours of active overnight assistance every night; and
Up to 10 hours of active daytime assistance every day, for personal care supports and community access supports.
Read the full written decision on AustLII.