WVCK and National Disability Insurance Agency (NDIS)

[2024] ARTA 950

WVCK and National Disability Insurance Agency (NDIS) [2024] ARTA 950 (12 November 2024)

Applicant:WVCK

Respondent:  National Disability Insurance Agency

Tribunal Number:                2023/1024

Tribunal:General Member A. Williams

Place:Hobart

Date:12 November 2024

Decision:The Tribunal affirms the decision under review.

.................................[sgd]......................................

General Member A Williams

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME- review of statement if participant supports swimming pool heater- reasonable and necessary support - consideration of section 34(1) of National Disability Insurance Scheme Act 2013 (Cth) - consideration of National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) Act 2024 and National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports 2024

National Disability Insurance Scheme (Getting the NDIS Back on Track No.) Act 2024

Cases

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Madelaine and National Disability Insurance Agency [2019] AATA 4025

Secondary Materials

National Disability Insurance Scheme Operational Guideline

Statement of Reasons

12 November 2024

BACKGROUND

The Applicant

1. WVCK is a 15-year-old boy who lives with his parents and older sister in south-east Queensland. He has been diagnosed with autism spectrum disorder (ASD), an Intellectual Disability and Anxiety.

2. Some years ago, he was found to be eligible for the National Disability Insurance Scheme (NDIS).

3. On 9 November 2022 a plan (Plan) was approved by a delegate of the CEO of the National Disability Insurance Agency (NDIA) under s 33 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act). The Plan covered the period between 20 October 2022 and 18 October 2025 (the original decision).

4. WVCK’s statement of participant supports includes a statement of his goals. These goals include:

   (a)To increase and improve my independent life skills so that I can safely participate in all areas of daily living, including completing personal care and participating in physical activities such as swimming. I would like to increase and improve my safety and confidence in all areas of my life to enable me to engage in all age-appropriate activities I have the opportunity to do.”

   (b)“To engage and participate in social and recreational activities and community clubs that interest me, such as shopping, swimming and day trips to new and fun areas and locations. I would like to explore my community to support me to increase my independence and relationships with others. I would like to increase my confidence and emotional regulation to enable me to be in social environments safely. I would like to develop strategies to support me to regulate my emotions and anxieties when engaged in social, community and recreational activities.”

   (c)“To increase my safety, confidence and independence in the water. I would like to develop skills and strategies to support me to engage in social and community activities with confidence. I would like to increase my ability to regular my emotions and manage my anxieties to support future goals of attending new and unfamiliar locations such as public pools and the beach.

5. WVCK’s NDIS plan includes a statement of participant supports, which records the total approved supports totalling $93,842.00, which includes the following:

   (a)A Core Supports budget of $57,027.11. (i) This includes $1,500.00 for low-cost assistive technology, $1,623.35 for continence aids and funding for 1:1 specialised home based support to assist the Applicant to engage in community, social and/or recreational activities within the community. It also includes funding for 1:4 support to assist the Applicant to engage in community, social and/or recreational activities in a centre during school holidays.

   (b)A Capacity Building Supports budget of $31,814.89 comprising:

   (i)Improved Life Choices (CB Choice & Control) - $3,760.20 (NDIA-managed).

   (ii)Stated Supports Funding- $232.35 (NDIA-managed).

   (iii)Improved Daily Living (CB Daily Activity) - $25,218.70 (Plan-managed).

   (iv)Support Coordination - $2,603.64 (Plan-managed). (A) This includes 26 hours of support coordination.

   (c)A Capital Supports budget of $5,000.00 (NDIA-managed). (i) $5,000.00 for Assistive Technology Funding

6. The capacity building support included $13,191.32 for an occupational therapist to assess and provide strategies to increase WVCK’s daily living skills. It also included $12,027.38 of funding for Speech Pathology to assist him in improving his speech abilities.

7. On 19 December 2022 Ms WVCK on behalf of her son sought an internal review of the statement of participant supports in the Plan by the NDIA. In her request for review, Ms WVCK sought the following additional supports:

   (i)inclusion of the cost of a pool heater in her son’s plan in order to both emotionally regulate and also participate in physical therapy year-round.

   (ii)Inclusion of 1:1 funding for swimming lessons, and art and dancing classes

8. The Respondent conducted its internal review and on 30 January 2023, a delegate of the CEO affirmed the original decision.

9. That decision maker noted in their decision that there was insufficient evidence to establish  that requests for “$7,337.70 for a pool solar heater including installation” and “additional funding for 1:1 swimming lessons, art classes and dance classes" was reasonable and necessary. The delegate found that the requested cost of a pool heater did not satisfy the various reasonable and necessary criteria in section 34 of the Act because:

   (i)The support was not related to the participant’s disability (rule 5.1(b)).

   (ii)The support duplicated other supports (rule 5.1(c)).

   (iii)The support related to day-to-day living costs (rule 5.1(d)).

   (iv)The support did not represent value for money (section 34(1)(c)).

   (v)The support would not be effective and beneficial (section 34(1)(d)).

10. Ms WVCK subsequently withdrew the request for the swimming lessons, art and dance classes.

11. Therefore, the only remaining issue before the Tribunal relates to the potential inclusion in WVCK’s supports of the cost of the pool heater. For that reason, this will be the only issue referred to and addressed in this decision.

12. Ms WVCK then applied for an independent review by this Tribunal on 20 February 2023. In her application she stated as follows:

    I don't believe the reviewer was using correct information and/or was intentionally misusing or twisting the documented NDIA principles to suit her judgement, not on it's true meaning. For example, she states in the rejection letter than she used the Swimming in Early Childhood information from the NDIA website, but my child is 14! He isn't a small child learning to swim as all young kids do. He uses the pool to emotionally regulate and to do his many therapies. Also, I mentioned quite clearly on the initial recommendation, and also on the review, that his request for pool heating was not about swimming lessons, it's about emotional regulation and his access to therapy in a suitable place where we can control as many of the outside issues [sensory issues, like too many kids running around at a public school making noise, travel issues, the need to miss school to attend regular aqua therapy lessons due to availability etc] as we can to make his therapy more productive and comfortable for [the Applicant]. So then the reviewer said [in the letter an on phone] that she referred to Sensory Equipment information on NDIA website. But again, that has nothing to do with [the Applicant’s] request. She seemed to be looking for reasons to reject it instead of taking the experts' advice into account. Surely the OT, PT and his other therapist have more on an understand on [the Applicant’s] needs and issues than someone looking at a small sliver of a person's life. That's why they use experts to write the reports! The reviewer also mentions FairPlay vouchers. That's simply ridiculous. As though that has anything to do with what we are asking for which is to heat his at-home pool so he can emotionally regulate daily and have his therapists work from one central location - his home, several days a week.

13. Upon receipt of the application, the matter went through several steps with a view to either resolving the matter or have it in readiness for hearing.

14. A hearing took place on 16 and 17 September 2024. Ms WVCK attended by video link and the Agency was represented by Ms Krystyna Grinberg of Counsel, instructed by Mr Brendan O’Brien of Moray and Agnew Lawyers.

    Issues for determination  

15. There is a single issue to determine in this matter, namely whether the cost of a swimming pool heater is a reasonable and necessary support under the Act.

16. In this regard, prior to the hearing of the matter, Ms WVCK provided the Tribunal with two quotes from Sunbather Solar Pool Heating both dated 20 May 2024 as follows:

    ·AP Viron iHP170 SIDE $9,494.41 (pool pump)

    ·Solar Heater, pump, and controller $7,866.00

    LEGISLATIVE FRAMEWORK

17. The objects of the Act are set out in section 3. Subsection 3(1) of the Act provides:

    The objects of this Act are to:

    (a)in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and

    (b)provide for the National Disability Insurance Scheme in Australia; and

    (a)support the independence and social and economic participation of people with disability; and

    (b)provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and

    (c)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and

    (d)facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and

    (e)promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and

    (ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and

    (f)raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability; and

    (g)in conjunction with other laws, give effect to certain obligations that Australia has as a party to.

    What can be a NDIS support?

18. Section 10 of the Act provides guidance on what can be considered or approved as a NDIS support.

    Supports that are NDIS supports

    1   Subject to subsections (4) and (9), a support is an NDIS support for a person who is a participant or prospective participant if the support is declared by National Disability Insurance Scheme rules made for the purposes of this subsection to be an NDIS support for:

    (a)participants or prospective participants generally; or

    (b)a class of participants or prospective participants that includes the person.

    Note:The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

    2   Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (1), the Minister must be satisfied:

    (a)for rules to which paragraph (1)(a) applies—that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or

    (b)for rules to which paragraph (1)(b) applies—that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

    3   National Disability Insurance Scheme rules may declare a support for the purposes of subsection (1) only if at least one of the following applies:

    (a) the declaration of the support implements Australia’s obligations under:

    (i)     the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006; or

    (ii)    any other agreement with one or more other countries;

    (b)the declaration of the support enables the provision of sickness benefits.

    Note:    For subparagraph (a)(i), the Convention on the Rights of Persons with Disabilities is in Australian Treaty Series 2008 No. 12 ([2008] ATS 12) and could in 2024 be viewed in the Australian Treaties Library on the website ( that are not NDIS supports

    4The National Disability Insurance Scheme rules may declare that a support is not an NDIS support for:

    (a)     participants or prospective participants generally; or

    (b)     a class of participants or prospective participants.

    Note:The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

    (5)Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (4), the Minister must be satisfied:

    (a)for rules to which paragraph (4)(a) applies—that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or

    (b)for rules to which paragraph (4)(b) applies—that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

    (6)  The CEO may determine, in writing, that a support is taken to not be declared under subsection (4) in relation to a participant if:

    (a)the support is prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and

    (b)the support would, apart from subsection (4), be an NDIS support for the participant; and

    (c)     the participant applies to the CEO in accordance with subsection (7) for the determination; and

    (d)     the CEO is satisfied that:

    (i)     the support would replace one or more other supports that are NDIS supports for the participant; and

    (ii)    the cost of the support is the same or lower than the total of the costs of the supports it would replace; and

    (iii)   the support would provide the same or a better outcome for the participant than the supports it would replace; and

    (iv)   any other conditions specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph are met in relation to the support, the participant, or both.

    Note 1:A determination may be revoked under subsection 33(3) of the Acts Interpretation Act 1901.

    Note 2:The National Disability Insurance Scheme rules may prescribe a support for the purposes of paragraph (a) by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

    7An application under paragraph (6)(c) must:

    (a)be in the form (if any) approved by the CEO; and

    (b)include any information, and be accompanied by any documents, required by the CEO; and

    (c)be made in accordance with any other requirements specified in the National Disability Insurance Scheme rules for the purposes of this paragraph, which may include requirements as to the circumstances in which an application may, or may not, be made.

    8The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of subsection (6), including by prescribing requirements with which the CEO must comply, methods or criteria that the CEO is to apply, or matters that the CEO may, must or must not take into account, in deciding whether to make a determination under that subsection.

    9A support is not an NDIS support for a participant or prospective participant if the support consists of the provision of:

    (a)sexual services; or

    (b)alcohol; or

    (c)drugs, the possession of which is a contravention of a law of the Commonwealth, a State or a Territory.

    Preparation of a participant’s plan

19. Part 2, Division 2 of the Act sets out the process of preparing a participant’s plan.

20. Prior to 3 October 2024, Section 32 of the Act provided as follows:

    The CEO must facilitate the preparation of a plan for the participant under the Act (section 32), having regard to the principles relating to plans specified in section 31. A participant’s plan must include the participant’s statement of goals and aspirations and a statement of participant supports (section 32). The plan must specify the following matters (subsection 33(2)):

    (a)the ‘general supports’ (as defined in subsection 13(2)) (if any) that will be provided to, or in relation to, the participant; and

    (b)the reasonable and necessary supports (if any) that will be funded under the NDIS; and

    (c)the date by which, or the circumstances in which, the Respondent must review the plan under Division 4; and

    (d)the management of the funding for supports under the plan (see also Division 3); and

    (e)the management of other aspects of the plan.

21. This section has also been the subject of significant amendments which will be addressed in this decision.

22. Prior to 3 October 2024, Section 34(1) of the Act provided as follows:

    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 community to provide;

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

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

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

    (2)The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in paragraphs (1)(a) to (f).

1. It is important to note that for a support to be approved it must meet all of the listed criteria. If a requested support fails to satisfy any one of the criteria, it cannot be approved.

2. As will be noted in paragraphs 28 to 36 of this decision, section 34(1) as of 3 October 2024, has been amended. These changes will be assessed in my consideration of the case from paragraph 97 onwards. 

3. Section 35 of the Act allows for NDIS rules to be prescribed establishing a method for assessing, or the criteria for deciding, the reasonable and necessary supports or general supports that will be funded or provided, or for declaring reasonable and necessary supports or general supports to be provided or funded, either generally or for prescribed participants. Rules have been prescribed and are in force, being the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Rules). The Tribunal also notes the Operational Guidelines – Planning (Chapter 10).

   National Disability Insurance Scheme Rules (Supports for Participants) Rules 2013

4. In making the assessment of whether a support is reasonable and necessary according to subsection 34(1) of the Act, the Rules must be taken into account.

5. Part 5 of the Supports Rules sets out general criteria for supports and supports that will not be funded or provided:

   General criteria for supports

   5.1A support will not be provided or funded under the NDIS if:

   (a)it is likely to cause harm to the participant or pose a risk to others; or

   (b)it is not related to the participant’s disability; or

   (c)it duplicates other supports delivered under alternative funding through the NDIS; or

   (d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.

   5.2The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):

   (a)additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;

   (b)costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.

   Supports that will not be funded or provided

   5.3The following supports will not be provided or funded under the NDIS:

   (a)a support the provision of which would be contrary to:

   (i).    a law of the Commonwealth; or

   (ii).   a law of the State or Territory in which the support would be provided;

   (b)a support that consists of income replacement.

6. As of 3 October 2024, the Act was amended under the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act (Amending Act).

7. Under the Amending Act, new Rules were also put into effect. Of particular relevance to this matter, is the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (the Transitional Rules).

8. The Amending Act and the Transitional Rules are designed to provide greater clarity as to what types of requested supports will receive funding approval under the Act and those supports that generally will not be approved.

9. As noted in paragraph 23 above, as a result of the Amending Act, section 34(1) now reads as follows:

   1For 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:

   (aa)the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);….

   (f)the support is an NDIS support for the participant

10. Rule 5 of the Transitional Rules is as follows: 

    What supports are NDIS supports—general rule.

    Supports that are NDIS supports unless otherwise provided:

    1For the purposes of subsection 10(1) of the NDIS Act, a support covered by column 2 of an item in the table in clause 1 of Schedule 1 to this instrument is an NDIS support (subject to subsections 10(4) and (9) of the NDIS Act and subsection (2) of this section) for:

    (a)participants specified in column 3 of the item who have old framework plans; and

    (b)prospective participants specified in column 3 of the item, other than prospective participants who, if they were participants, would be required to be given notice under subsection 32B(2) of the NDIS Act (participants that are to have new framework plans).

    Note 1: Subsection 10(4) of the NDIS Act allows supports to be declared to not be NDIS

    supports for participants or prospective participants. Those supports are declared under subsection (2) of this section.

    Note 2: Subsection 10(9) of the NDIS Act provides that a support is not an NDIS support for a

    participant or prospective participant if the support consists of the provision of:

    (a)sexual services; or

    (b)alcohol; or

    (c)drugs, the possession of which is a contravention of a law of the Commonwealth,

    (d)a State or a Territory.

    Supports that generally are not NDIS supports:

    2For the purposes of subsection 10(4) of the NDIS Act, a support covered by column 2 of an item in the table in clause 1 of Schedule 2 to this instrument is not an NDIS support for any participant (subject to subsection 10(6) of the NDIS Act) or prospective participant.

    Note 1: Subsection 10(6) of the NDIS Act allows the CEO, on application by a participant, to determine that a support is taken to not be declared under subsection 10(4) of that Act

    in relation to the participant if, among other things, the CEO is satisfied that the support

    would replace one or more other supports that are NDIS supports for the participant.

    Note 2: Determinations under subsection 10(6) of the NDIS Act are referred to in this

    instrument as replacement support determinations. For additional rules about replacement support determinations, see section 7 of this instrument.

11. This rule gives effect to section 10(4) of the Act which states that the Support Rules may declare that a support is not a NDIS support for a participant or a prospective participant.

12. Schedule 2 of the Rules contains a categorised list of requested supports that are declared not to be NDIS supports. Once again, the relevant section is listed below:

    Schedule 2—Supports that generally are not NDIS supports:

    Note: See subsection 5(2)

    1 Supports that generally are not NDIS supports.
    The following table sets out supports that are not NDIS supports for:

    (a) a participant (unless a replacement support determination covering the support is in force for the participant); or

    (b) a prospective participant.

    Supports that generally are not NDIS supports.
    Column 1 Column 2
    Item Category Supports
    1 Day-to-day living costs — accommodation and household
    The following:

    …(d) pools, pool heating and maintenance, spa baths, saunas, and steam rooms.

13. Also, of importance to an assessment of this matter are both section 10(6) of the Act and Rule 7 of the Transitional Rules.

14. Section 10(6) is as follows:

    The CEO may determine, in writing, that a support is taken to not be declared under

    subsection (4) in relation to a participant if:

    (a)the support is prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and

    (b) the support would, apart from subsection (4), be an NDIS support for the participant; and

    (c)the participant applies to the CEO in accordance with subsection (7) for the determination; and

    (d)the CEO is satisfied that:

    (e)the support would replace one or more other supports that are NDIS supports for the participant; and

    (f)the cost of the support is the same or lower than the total of the costs of the supports it would replace; and

    (g)the support would provide the same or a better outcome for the participant than the supports it would replace; and

    (h)any other conditions specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph are met in relation to the support, the participant, or bot

15. Rule 7 of the Transitional Rules is as follows:

    Replacement support determinations

    Supports for which determinations may be made:

    1For the purposes of paragraph 10(6)(a) of the NDIS Act, the CEO may make a replacement support determination in relation to a support covered by column 1 of an item in the table in subsection (3) of this section.

    2For the purposes of subparagraph 10(6)(d)(iv) of the NDIS Act, the CEO must be satisfied that the conditions set out in column 2 of an item in the table in subsection (3) are met before making a replacement support determination in relation to a support covered by column 1 of the item.

    3The table is as follows:

    Replacement support determinations

    Column 1 Column 2

    Item Supports Conditions

    1Standard commercially available household items

    The support must:

    (a)The funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and community to be necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements; and

    (b)increase whole task independence; and

    (c)reduce or eliminate the need for a support worker or disability specific assistive technology.

    What these two provisions specify is that a participant may apply to have a support that would otherwise be considered not to be an NDIS support considered as a replacement support determination, subject to it meeting the requirements specified in Rule 7(3).

16. I shall return to the effect of the Transitional Rules in this case when I consider whether the requested additional support can be found to be reasonable and necessary under the Act. However, I note that the Transitional Rules came into effect on 3 October this year and after the hearing of evidence had concluded.

17. Because of these developments, I issued directions to the parties to provide written submissions addressing the effect of these legislative changes to this matter. In this regard I directed that the Respondent provide its submissions on or before 16 October 2024 with the Applicant providing theirs by 23 October 2024. A directions hearing was then scheduled to be held on 25 October 2024 where I heard from both Ms WVCK and the Respondent as to what they submitted and the effects of those amendments as they applied to this case.

18. The Act and its Rules are supplemented by operational guidelines. The operational guidelines represent government policy and, to the extent that they are consistent with the relevant legislation, should be applied by the Tribunal unless there is a sound reason not to do so.[1]

    [1] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; Madelaine and National Disability Insurance Agency [2019] AATA 4025.

19. The relevant operational guidelines at the time the decision under review was made, and to which the Tribunal has been referred to as applicable to the task before it, is the NDIS Reasonable and Necessary Supports Guideline dated 6 October 2023 (Supports Guideline)

    THE PARTIES’ POSITIONS

    Respondent

20. The Respondent’s position is outlined in its most recent Statement of Facts, Issues and Contentions (SoFIC) dated 24 May 2024.

21. The Respondent contended that the requested support is not reasonable and necessary, as the Tribunal could not reasonably be satisfied as to the following:

    (a)The support will assist the Applicant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations (s 34(1)(a) of the Act).

    (b)The support will assist the Applicant to undertake activities, so as to facilitate the Applicant’s social and economic participation (s 34(1)(b) of the Act).

    (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 (s 34(1)(c) of the Act).

    (d)The support will be, or is likely to be, effective and beneficial for the Applicant, having regard to current good practice (s 34(1)(d) of the Act).

    (e)The support is related to the Applicant’s disability (r 5.1(b) of the Rules).

22. The Agency submitted that the weight of evidence suggests that the primary purpose of using the pool is not for therapeutic purposes, but for the Applicant’s emotional regulation.[2]

    [2] Respondents SoFIC JTB p 98.

23. The Respondent further submitted, that the use of the pool, including during the winter months when it would be heated if the support were funded, will not assist the Applicant to pursue the goals, objectives and aspirations included in his statement of goals and aspirations.[3]

    [3] Ibid 99.

24. The Respondent also submitted that there was no evidence that use of the pool for the purposes of sensory and emotional regulation will increase and improve his independent life skills. Nor is there any evidence that the use of the pool will increase his confidence and emotional regulation. Nor does the evidence suggest it will assist him to engage or participate in social and recreational activities or in the community.[4]

    [4] Ibid.

25. The Respondent also contends that the use of the pool, for the Applicant to regulate his emotions, is not value for money and nor is it likely to be effective and beneficial for the Applicant, having regard to current good practice.[5]

    [5] Applicant’s SoFIC.

26. The Respondent further contends that the Tribunal cannot be reasonably satisfied that the requested support represents value for money under section 34(1)(c) of the Act, by reason of the following:

    (a)There is no evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the Applicant (r 3.1(b)).

    (b)Funding or provision of the support is also not likely to reduce the cost of the funding of supports for the participant in the long term (r 3.1(c)).

    (c)The support will not increase the Applicant’s independence and reduce the Applicant’s needs for other kinds of supports (r 3.1(f)).

    Applicant

27. Ms WVCK provided to the Tribunal and the Respondent a SoFIC on 13 April 2024.

28. She stated that there were multiple reports and other evidence from her son’s therapists and other supports recording the benefits of accessing his home pool for both emotional regulation and physical fitness.[6]

    [6] Ibid.

29. These benefits were also in line with his stated goals of increased independence.

30. The requested support was also directly related to his disabilities arising out of his autism and intellectual impairment and severe anxiety.

31. The proposed support would also assist with enabling him to develop greater physical strength and mobility in a buoyant environment.

32. The proposed support represented value for money compared to having therapy sessions in a public pool or other options suggested by the Respondent.

33. In terms of the proposed support being beneficial and effective and current good practice, Ms WVCK submitted that her son has had years of occupational therapy without much improvement and the family had found that preventing or limiting his emotional outbursts was a far better solution.

34. Having the pool heater would also enable her son to have friends over which would improve his level of social participation.

35. The requested support should not be considered a day-to-day expense as it was directly related to his disability and the family would not consider buying the requested item except for addressing her son’s disability needs.

36. In this regard there is a significant body of evidence establishing the emotional and physical health benefits of water-based therapy for children with autism.

    EVIDENCE IN SUPPORT OF THE APPLICANT’S POSTION

    The Applicant’s Evidence

37. On 22 December 2022, the T-documents were provided by the respondent to the Applicant and the tribunal. The T-documents include the following relevant evidence:

    (a)T1B: Letter from Tegan Pinese, Occupational Therapist dated 12 March 2021.

    (b)T1BA: General Assistive Technology assessment completed by Tegan Pinese on 4 March 2021, attaching a letter from Ms Bennedick, Swimming Instructor, dated 6 March 2021.

    (c)T1C: Report from Tegan Pinese, Occupational Therapist, dated 4 April 2022 (Produced at T10).

    (d)T1D: Letter from Tegan Pinese, Occupational Therapist, dated 19 May 2022.

    (e)T1E: Letter from Alexander Piva, Physiotherapist, dated 4 April 2022.

    (f)T3: Report from Candice Chesterfield, Support Worker, dated 20 May 2020.

    (g)T4: Report from Emma Hancox, Occupational Therapist, dated 18 November 2020.

    (h)T5: Letter from Laurel Eoh, Consultant Paediatrician, dated 26 November 2020.

    (i)T6: Letter from Nicole Bennedick, Swimming Techer, dated 6 March 2021.

    (j)T7: Report from Christine Schultz, Support Coordinator, dated 24 February 2022.

    (k)T8: Letter from Tegan Pinese, Occupational Therapist, dated 4 April 2022.

    (l)T9: Quote from Greg Badcock dated 4 April 2022 for the supply and installation of a “Solar Install Base w/Pump” at a cost of $7,337.70 (including GST).

    (m)T12: Plan Review Report, Christine Schultz, Support Coordinator, dated 23 May 2022.

    (n)T13: Letter from Precious Luis, Occupational Therapist dated June 2022.

    Applicant’s evidence to the Tribunal

38. In addition to the documents contained in the T-documents, the following additional evidence was submitted on behalf of WVCK:

    ·Letter from Dr Manuel Bautista-Morales (Staff Specialist Paediatrician Caboolture Hospital) dated 16 May 2023, confirming WVCK’s revised diagnoses of autism spectrum disorder (level 3) and intellectual disability.

    ·Letter from Ms WVCK dated 24 November 2023 providing an outline of her son’s lived experience.

    ·Ms Tegan Pinese’s response to the Respondent’s targeted questions dated 2 February 2024.

    ·An undated report of Eliza Halls (gymnastic instructor).

    ·Report dated 29 March 2023 from Sean Whitten and Tara McClintock (exercise physiologists) of the Holt Bolt Movement

    ·Sensory Profile Report of Ms Pinese dated 8 April 2022.

    Ms Pinese’s response to targeted questions

39. In response to being asked to provide an updated assessment of WVCK, Ms Pinese stated she was unable to do so as she had not been providing ongoing occupational therapy sessions since conducting her assessment in 2022.

40. For the same reason, Ms Pinese was unable to comment on the current goals of occupational therapy for WVCK.

41. At the time of preparing her 2022 report she considered that the requested support would assist WVCK with the following goals:

    In the next few years, I would like to be able to swim independently in public pools and maybe even at the beach.

    I would like to be safe, confident, and independent in my own home by improving my ability to complete daily tasks and to contribute to my family and home community.

42. Responding to a question concerning the details of her treatment sessions, Ms Pinese stated that she was engaged to complete an assessment of WVCK’s assistive technology needs and provide necessary recommendations. She has not been engaged with ongoing therapy sessions with WVCK.

43. Ms Pinese considered that by providing increased opportunities to use the pool, it could reasonably be expected that his overall fitness and functional movement skills would improve. She stated that research (paper cited) indicates the benefits in children’s general health, mental health, cardiovascular endurance, strength coordination and balance from swimming.[7]

    [7] The impact of swimming on fundamental movement skill development in children (3-11years): A systematic literature review. Children, 10. (Sinclair & Roscoe, 2023).

1. In terms of potential improvements in WVCK’s gross motor skills, core strength and physical endurance, she would defer to the opinions of his physiotherapist and/or exercise physiologist. 

2. She stated that the intention of having a pool heater installed, was not to facilitate providing occupational therapy sessions in the pool, rather if there were to be a pool-based exercise program recommended by a physiologist or exercise physiologist, then having a pool heater would increase the number of days WVCK could access this therapy in his family’s pool.

3. In terms of her recommendations for the use of the pool, Ms Pinese stated that it would allow WVCK to use the family pool year-round. It was based upon the knowledge that swimming and water-based movement was one of WVCK’s occupations and that he was restricted in its use during the colder months. Ms Pinese stated that she was not making any specific recommendations as to its use, rather to allow WVCK to use the pool in the manner he wishes, year-round. The family reported to her that WVCK could use the pool for exercise, recreation, and water-based activities when he was emotionally dysregulated.

4. Responding to the same question, Ms Pinese stated that WVCK’s mother reported that after being in the pool WVCK would be calmer and have less emotional meltdowns. WVCK will use the pool to assist with emotional regulation and maintain his physical skills. He will use the pool before accessing out of home activities so that he is calmer and better regulated emotionally when he does go out and results in those activities being more successful as he can tolerate these for longer. He can also be able to engage in physical activities for longer in the pool than in land-based activities.  

5. Conversely during the colder months WVCK’s mother states that when WVCK cannot use the pool, he experiences more emotional dysregulation, and more frequently experiences emotional meltdowns and being overwhelmed sensorily.

6. She indicated that efforts had been made to have WVCK use a local public pool but have proven unsuccessful for a range of reasons including that the environment was too overwhelming from a sensory perspective for WVCK and having a heated pool at home would prove both beneficial and effective.

7. Ms Pinese advised that she considered that the provision of a pool heater would reduce the funding of other supports in the long-term including the need for support workers to accompany him to a public pool.

8. Ms Pinese noted that alternative activities for WVCK’s emotional regulation, physical exercise and recreation have been considered and implemented, they were not as successful in these areas as using his own pool has been the most successful and positive experience for him. 

   Ms WVCK’s evidence at hearing

9. Ms WVCK provided an outline of her son’s weekly activities, where these took place and who supported him in getting there and assisted him during those activities.

10. When asked about Ms Eliza Hall’s role she told the Tribunal that she conducts his private gym class followed by a class with others. Ms Hall would provide him with exercise activities he can do in the pool at home.

11. He has been enjoying drumming classes and, his sister who lives downstairs in the family home, has a range of musical instruments (including a drum kit) that he likes to use. He will use the drums when he is feeling emotionally heightened.

12. At other times when he is experiencing frustration, he will pace up and down on the deck or use one of two hammocks located upstairs and downstairs in the house. 

13. Ms WVCK agreed that hydrotherapy had been recommended for her son by the staff at Holt Bolt, but he has not started this yet. This may include the trainers conducting such sessions in the family pool.

14. Ms WVCK said that her son had tried swimming at the local pool, however he found the environment too stressful particularly when there were many young children there. After that, he did have some private swimming lessons at home where he was able learn breaststroke.

15. Ms WVCK stated that her son would use the pool most days when it was warm enough to do so. He might get in the pool in the morning before school to help calm himself, and then have a hot shower before getting ready for school.

16. In terms of the potential for the pool assisting WVCK with social interaction, Ms WVCK said that while he could have friends over for a barbeque or a sleepover, having a pool is also a drawcard for his schoolfriends particularly during the warmer months of the year.

    Ms Pinese’s evidence

17. Ms Pinese provided her evidence, initially by outlining her qualifications experience and her methodology in conducting functional assessments and then conducting therapy sessions.

18. She noted that WVCK likes using the family pool and it helps him with emotional regulation, and physical capacities.

19. She confirmed that WVCK did not respond well to therapy in the local public pool due to the sensory overload in that environment, and lack of ready access to the toilets.

20. She said that accessing the pool at home was safer for WVCK because it is a familiar environment and potentially would help him when emotionally heightened, and better able to cope in the out of home environment and participating in external activities such as the gym and dance classes.

21. Ms Pinese indicated that WVCK could have social interaction in his home environment in addition to his out of home activities.

    Ms Hall’s evidence  

22. Ms Hall gave her evidence on the second day of the hearing.

23. She said that WVCK had been attending weekly gymnastics classes since August 2023. She considered that WVCK’s sensory needs are high and that he requires both structure and motivation in his classes to keep him focussed.

24. Ms Hall said that WVCK would regress quickly if his supports were withdrawn. His motor skills and body awareness are akin to that of a 4-year-old.

25. She considered that WVCK could do physical exercise in his home pool and that would assist with improving his should mobility and arm strength.

26. In responding to questions from the Respondent’s counsel, Ms Hall confirmed she had not seen WVCK outside of her gymnastic classes, had not seen him in a pool and had not provided him with aqua therapy.

    Ms McClintock’s evidence

27. Ms McClintock told the Tribunal she works as an Exercise Physiologist out of the Holt Bolt Centre. She can provide hydrotherapy and these sessions would be held at the local public pool. WVCK attends weekly sessions at the Centre.

28. Those classes are held between 7am and 12pm on weekdays. This would present a problem for WVCK as this is during school hours.

29. She noted that the public pool where the sessions are held is heated to a higher temperature than the main public pool there. if WVCK was to have hydrotherapy sessions in his home pool, it would also need to be heated to a similar temperature.

30. Ms McClintock does not conduct the sessions with WVCK herself but works in preparing the structure of his sessions and monitors his progress including debriefing with the trainer after each session.

31. She said that overall WVCK had made good progress since he started attending, but also considered he would quickly regress if he were to stop the regular training.

    CONSIDERATION

    Is the request for a swimming pool heater a reasonable and necessary support?

32. As noted previously, the Act and the previously in force Support Rules were amended as of 3 October 2024. It is also important to note that the Amending Act and the Transitional Rules came into effect immediately on that date, and therefore apply to this case.

33. As noted earlier, both the Amending Act and the Transitional Rules are designed to specify what requested supports can be considered to be NDIS supports and those that will not.

34. Prior to the Amending Act and the Transitional Rules, a decision maker such as myself would be required to assess whether the requested support met the various criteria laid out in subsections 34(1) (a) to (g) of the Act. It would be open to me to make such a finding approving the requested support if the requested support met all those criteria.

35. These criteria have previously been listed in paragraph 25 of this decision and therefore do not need to be repeated in full here.

36. Of particular importance to my determination, however, are subsections (f) and (g) which state:

    (f) the support is an NDIS support for the participant

    (g) the support is not prescribed by the [NDIS] rules as a support that will not be funded or provided under the [NDIS].

37. In this regard Rule 5(2) of the Transitional Rules and section 10(4) of the Act (as amended) have declared the following supports not to be NDIS supports in schedule 2 of the Transitional Rules:

    Pools, pool heating and maintenance, spa baths, saunas, and steam rooms

38. As a result of these changes, there is now in place a general presumption that the support requested in this case, namely a pool heater (whether solar or a pool heat pump), is not a NDIS support. 

39. Because pools, pool heating and maintenance, spa baths, saunas, and steam rooms are now listed as not a NDIS support, I am unable to make a finding that the requested support be approved. This is the case regardless of any evidence that may establish potential benefits to the participant of the requested support and any finding I could make that the requested support met the other criteria listed in s34(1) of the Act.

40. As all eight criteria in section 34(1) of the Act must be met for a support to be approved, a finding that one of the criteria is not met means that the requested support cannot be approved.

41. These issues were raised with the parties at the directions hearing which took place on 25 October 2024 after both Ms WVCK and the Respondent were provided with an opportunity to address the effect on the present case of the Amending Act and the Transitional Rules. As I noted earlier, both parties provided detailed written submissions addressing the recent amendments to the Act.

42. Briefly, Ms WVCK’s submission was to the effect that much of the wording in what she termed the ‘NDIS book” seemed to indicate a great deal of discretion on the part of decision makers and that the definition of ‘reasonable and necessary’ remained open to interpretation. It was also quite uncertain and, in her view, operated more as a guideline. Ms WVCK also made several responses to the Respondent’s other submissions, however for the reason I will outline in paragraph 121 below, it is not necessary for me to record them in detail.

43. Before recording the Respondent’s submission, I make the following observations concerning Ms WVCK’s submissions.

44. As I Indicated at the Directions Hearing on 25 October 2024, the amendments to the Act and the new Transitional Rules are changes to the law and therefore I am required to follow them. They are not, as Ms WVCK submitted, guidelines that may or may not be followed, depending upon the circumstances of each individual case. In this regard, I have treated the recent amendments in paragraphs 97 to 104 above on the basis that they now represent the law I am required to apply. 

45. The Respondent, in its submission, stated that it was not open to the Tribunal to find that the requested support was reasonable and necessary as:

    ·The support is not necessary to address the needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (s 34(1)(aa) of the Act).

    ·The support will not assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations
    (s 34(1)(a) of the Act).

    ·The evidence before the Tribunal does not establish that the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation (s 34(1)(b) of the Act).

    ·The evidence before the Tribunal does not establish that the requested support represents value for money (s34(1)(c) of the Act).

    ·The evidence does not establish that the requested support is likely to be effective and beneficial for the participant, having regard to current good practice (s34(1)(d) of the Act).

    ·The support is not a NDIS support for the participant (s 34(1)(f) of the Act)

46. For the reasons that I will outline below, I do not propose to provide a detailed account of the Respondent’s submissions over and refer to the summary outlined above.

47. Returning now to my consideration of the legislation, the fact that a requested support has been specified as ‘not a NDIS support’ is not the end of the matter. Section 10(6) of the Act and Rule 7(3) of the Transitional Rules grant a participant the right to apply to the CEO for what is termed a replacement support determination for a support that is specified as not a NDIS support. Rule 7(3) outlines what a participant needs to establish for a replacement support determination to be made.

48. Those criteria are as follows:

    The support must:

    (a)be necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements; and

    (b)increase whole task independence; and

    (c)reduce or eliminate the need for a support worker or disability specific assistive technology.

49. It was my view that those criteria had not been the subject of evidence provided at the hearing.

50. As part of my assessment of the parties’ submissions, I then considered whether it was open to the Tribunal to potentially reopen the case and have further evidence provided which addressed the criteria in rule 7(3) of the Transitional Rules.

51. The Respondent in their written submission, addressed the Tribunal’s capacity to take this approach as follows:

    Section 10(6) provides that the CEO may, in certain circumstances, determine that a support is taken to not be declared under s 10(4) (as not an NDIS support). In order for this to occur the participant must apply to the CEO in accordance with s 10(7) for a determination, and the CEO must be satisfied that the conditions set out in s 10(6) are met in relation to that support.

    Section 7 of the Transitional Rules deals with replacement support determinations for the purposes of s 10(6). It provides that the CEO may make a replacement determination in relation to a support set out in column 1 of the table in s 7(3). The CEO must be satisfied of certain conditions, as set out in column 2 of the table in subsection (3), before such determination is made.

    In this matter, there has been no application to the CEO in accordance with s10(7) for a replacement support determination. Accordingly, there has been no replacement support determination made under s 10(6), and the CEO has not had any power to make such a determination. As such, this issue is outside the Tribunal’s jurisdiction.[8]

    [8] Respondent’s post hearing submissions 64-66.

52. I accept that the Respondent’s submission correctly states the legal position on the Tribunal’s jurisdiction.

53. What this means is that the Tribunal does not have the power at this time to assess whether a replacement support determination can be made. The Tribunal could only conduct such a review once an application requesting the CEO to determine whether they were satisfied that the various conditions in Rule 7(3) of the Transitional Rules had been met and the CEO finding that they had not been met and then Ms WVCK applying to the Tribunal for a review of that decision.

54. This issue was the subject of discussion at the Directions Hearing on 25 October 2024 and Ms WVCK was advised of the new arrangements, and that they represent a change in the law as it relates to her application before the Tribunal.

55. It is my view, having considered all the evidence before me, that I cannot find that the request for a swimming pool heater as a reasonable and necessary support. Primarily this is because section 34(1)((f) of the Act, Rule 5, and Schedule 2 of the Transitional Rules make it clear that pools, pool heating and maintenance, spa baths, saunas, and steam rooms are now defined as ‘not an NDIS support’.

56. As mentioned before when assessing whether a support is reasonable and necessary under section 34(1) of the Act, that support must meet all six criteria and a negative finding on any one of those criteria means the requested support cannot be approved.

57. As I now am unable to approve a support classified as ‘not an NDIS support’ that concludes my consideration, and it is not necessary in my view to consider the other grounds under which the Respondent states the requested support should not be approved. 

    CONCLUSION

58. Having regard to the above, I am not satisfied that the Applicant’s request for a swimming pool heater is a reasonable and necessary support that should be funded by the NDIS.

59. Accordingly, I affirm the decision under review.

    I certify that the preceding 124 (one hundred and twenty -four) paragraphs are a true copy of the reasons for the decision herein of General Member A Williams

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

    Associate
    Dated: 12 November 2024

Date(s) of hearing:

16 & 17 September 2024

Date final submissions received:

Applicant:

25 October 2024

Self-represented

Counsel for the Respondent:

Ms Krystyna Grinberg

Solicitors for the Respondent:

Moray and Agnew Lawyers
Mr Brendan O'Brien