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ZJSG and National Disability Insurance Agency [2023] AATA 2784 (31 August 2023)

Last Updated: 5 September 2023

ZJSG and National Disability Insurance Agency [2023] AATA 2784 (31 August 2023)

Division: NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s): 2021/8914

Re: ZJSG

APPLICANT

And National Disability Insurance Agency

RESPONDENT

DECISION

Tribunal: Member T Bubutievski

Date: 31 August 2023

Place: Sydney

The Tribunal sets aside the decision under review and remits this matter for reconsideration by the Respondent with a direction that on or before 28 September 2023, the Respondent facilitate the approval of a new statement of participant supports (SOPS) for the Applicant, ZJSG, containing the following:

(a) 16 hours per annum of psychology assistance in the form of 12 psychology sessions, two hours for report writing and two hours for review by a mental health occupational therapist;

(b) 75 hours per annum for ZJSG to use in her preferred combination of psychosocial recovery coaching and support coordination;

(c) 60 hours per annum for ZJSG to use in her preferred combination of occupational therapy, physiotherapy and podiatry;

(d) 7 hours for an assessment by a continence nurse;

(e) 15 hours per week at the weekday daytime rate of support work assistance for Social, Civic and Community Participation;

(f) 7 hours per week (which can be across seven days per week) of support work assistance for personal care; and

(g) 5 hours per week at the weekday daytime rate for cleaning.

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

Member T Bubutievski

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – participant – reasonable and necessary supports – reasonable and necessary supports in relation to disability – supports not limited to accepted impairment – ‘impairment’ as an aide to administrative understanding – participants can seek supports for disabilities which do not meet the access requirements – test of reasonable and necessary is s 34 and the Rules – supports already provided in the Plan by the Agency for disabilities which do not meet the access requirements – exercise physiology not established to be reasonable and necessary – decision remitted

Legislation

National Disability Insurance Scheme Act 2013 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013

Cases

Re BIJD and National Disability Insurance Agency [2018] AATA 2971
Frugtniet v Australia Securities and Investment Commission [2019] HCA 16
Goodliff and National Disability Insurance Agency [2021] AATA 5022
HPSC and National Disability Insurance Agency [2021] AATA 727
HRZI and National Disability Insurance Agency [2023] AATA 491
McLaughlin and National Disability Insurance Agency [2021] AATA 496
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v WRMF [2020] FCAFCA 79
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
VGCP and National Disability Insurance Agency  [2020] AATA 5107 
Young and National Disability Insurance Agency [2014] AATA 401
ZNDV and National Disability Insurance Agency [2014] AATA 921

Secondary Materials

https://ourguidelines.ndis.gov.au
Final Report To National Disability Insurance Agency: Key terms for animals in disability assistance roles, Dr Tiffani Howell, La Trobe University, 7 August 2019
La Trobe University - Reviewing Assistance Animal Effectiveness, Final Report to National Disability Insurance Agency, 30 September 2016
FNDaus.org.au
https:/www.olg.nsw.goc.au/public/dogs-cats/responsible-pet-ownership/assistamce-animals/

REASONS FOR DECISION

Member T Bubutievski


31 August 2023

1. The Applicant, ZJSG,^[1] is a forty-six year old female participant of the National Disability Insurance Scheme (NDIS). ZJSG sought review of a decision made on 19 November 2021 under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), affirming a decision made on 11 November 2021 under s 33(2) of the NDIS Act to approve a statement of participant supports (SOPS) forming part of ZJSG’s NDIS plan. On 18 January 2023, following a remittal by the Tribunal under s 42D of the Administrative Appeals Tribunal 1975 (Cth) (AAT Act), the Respondent, National Disability Insurance Agency (NDIA or the Agency), made a decision to approve a further SOPS resulting in the commencement of a further NDIS plan for ZJSG. ZJSG elected to proceed with this application and the remittal decision became the decision under review in this proceeding.^[2]
2. The Tribunal’s jurisdiction to review this application arises under s 25(1) of the AAT Act, operating in conjunction with s 103 of the NDIS Act.
3. ZJSG was granted access to the NDIS on the basis that she met the “disability requirements” under s 24 of the NDIS Act, as well as the age requirements and residency requirements under ss 22 and 23 of the NDIS Act respectively.
4. The parties to this proceeding consented to the matter being determined without a hearing. The Respondent proposed that the matter be heard on the papers. The Applicant was of the view that she had provided all the evidence she was able to provide and that her witnesses would not be available to give evidence if asked. She also wished to spare herself the rigours of a hearing due to her mental health conditions. The parties put this view in a directions hearing on 8 June 2023, the purpose of which was to timetable this matter for hearing. The Tribunal was subsequently satisfied that the issues for determination in this matter can be adequately determined in the absence of the parties. It made a direction to that effect on 19 June 2023 and proceeded to determine the matter in the absence of a hearing under s 34J of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The Tribunal sought further submission about the issue of permanence and the reasoning in the case of HZRI and National Disability Insurance Agency [2023] AATA 491 (HRZI) in the process of making this decision.

LEGISLATIVE FRAMEWORK

5. The NDIS Act establishes the NDIS, under which supports and services may be provided or funded for people with disabilities. The NDIS Act provides for the determination of a person’s eligibility to become a participant in the NDIS on the basis of access criteria and, where a person becomes a participant, for the making of a plan, setting out the person’s goals and the SOPS approved by the CEO.
6. The NDIS Act was amended in 2022 with the passage of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Amendment Act). Under ss 67 and 68, Schedule 1 of the Amendment Act, the amended review provisions do not apply to Tribunal reviews which were already then on foot. For this reason, this review is to be decided under the applicable provisions of the NDIS Act in effect prior to commencement of the Amendment Act provisions.
7. The NDIS Act sets out a framework of objectives (s 3) and principles (s 4, s 17A and s 31) within which provisions for the grant of access to the NDIS and the provision or funding of supports are to be construed.^[3]
8. The objectives are set out in s 3 and relevantly include:

   1. The objectives of this Act are to:

   ...

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

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

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

   ...

   (g) 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

   ...

   (3) In giving effect to the objects of the Act, regard is to be had to:

   (b) the need to ensure the financial sustainability of the National Disability Insurance Scheme; and

   (c) the broad context of disability reform provided for in:

   (i) the National Disability Strategy 2010‑2020 as endorsed by COAG on 13 February 2011; and

   (ii) the Carer Recognition Act 2010; and

   (d) the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.

9. General principles guiding actions under the NDIS Act are set out in s 4, which relevantly provides:

   ...

   (2) People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.

   ...

   (11) 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.

   ...

   (17) It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to the need to ensure the financial sustainability of the National Disability Insurance Scheme.

10. The principles set out in s 4 of the NDIS Act are supplemented by principles set out in s 17A, which apply to Chapter 3 and relevantly include:

    ...

    (3) The National Disability Insurance Scheme is to:

    (a) respect the interests of people with disability in exercising choice and control about matters that affect them; and

    (b) enable people with disability to make decisions that will affect their lives; and

    (c) support people with disability to participate in, and contribute to, social and economic life.

    ...

11. Principles relating to participant’s plans under Part 2 of Chapter 3 are set out in s 31.
12. In practical terms, where a person requests access to the NDIS, s 20 requires the CEO to do one of two things:

    (1) If a person (the prospective participant) makes an access request, the CEO must:

    (a) decide whether or not the prospective participant meets the access criteria; or

    (b) make one or more requests under subsection 26(1).

13. The access criteria are set out in s 21:

    (1) A person meets the access criteria if:

    (a) the CEO is satisfied that the person meets the age requirements (see section 22); and

    (b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and

    (c) the CEO is satisfied that, at the time of considering the request:

    (i) the person meets the disability requirements (see section 24); or

    (ii) the person meets the early intervention requirements (see section 25).

    (2) If the CEO is not satisfied as mentioned in subsection (1), the person meets the access criteria if the CEO is satisfied of the following:

    (b) the person:

    (i) was receiving supports at the time of considering the request or, if another time is prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph, at that other time; and

    (ii) received the supports throughout the period (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph; and

    (iii) received the supports under a program prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph;

    (c) if the person becomes a participant, the person would not be entitled to receive the supports referred to in paragraph (b), or equivalent supports;

    (d) the person satisfies any other requirements prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.

14. Subsection 26(1) relates to requests the CEO may make for the prospective participant to provide further information that is reasonably necessary to determine if the person meets the access criteria, or to undergo an assessment or an examination.
15. The disability requirements are set out in s 24 and the early intervention requirements are set out in s 25:

    24 Disability requirements

    (1) A person meets the disability requirements if:

    (a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or toone or more impairments attributable to a psychiatric condition; and

    (b) the impairment or impairments are, or are likely to be, permanent; and

    (c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:

    (i) communication;

    (ii) social interaction;

    (iii) learning;

    (iv) mobility;

    (v) self‑care;

    (vi) self‑management; and

    (d) the impairment or impairments affect the person’s capacity for social or economic participation; and

    (e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.

    (2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.

    25 Early intervention requirements

    (1) A person meets the early intervention requirements if:

    (a) the person:

    (i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or

    (ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent or

    (iii) is a child who has developmental delay; and

    (b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and

    (c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

    (i) mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or

    (ii) preventing the deterioration of such functional capacity; or

    (iii) improving such functional capacity; or

    (iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.

    Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

    (2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.

    (3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:

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

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

16. A person becomes a participant in the NDIS when the CEO decides they meet the access criteria (s 28(1)). The person’s status as a participant ceases in the circumstances set out in s 29, including where the CEO revokes their status under the terms of s 30:

    (1) The CEO may revoke a person’s status as a participant in the National Disability Insurance Scheme if:

    (a) the CEO is satisfied that the person does not meet the residence requirements (see section 23); or

    (b) the CEO is satisfied that the person does not meet at least one of the following:

    (i) the disability requirements (see section 24);

    (ii) the early intervention requirements (see section 25).

17. Where a person becomes a participant in the NDIS, under Part 2 of Chapter 3, the CEO must facilitate the preparation of a plan for the participant by which supports are to be provided, funded and managed. A plan has two essential components which, under s 37(1), are instrumental in the plan coming into effect, namely the participant’s goals and aspirations and the SOPS approved by the CEO.
18. The matters to be included in a participant’s plan are set out in s 33, relevantly:

    (1) A participant’s plan must include a statement (the participant’s statement of goals and aspirations) prepared by the participant that specifies:

    (a) the goals, objectives and aspirations of the participant; and

    (b) the environmental and personal context of the participant’s living, including the participant’s:

    (i) living arrangements; and

    (ii) informal community supports and other community supports; and

    (iii) social and economic participation.

    (2) A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:

    (a) the general supports (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 National Disability Insurance Scheme; and

    (c) the date by which, or the circumstances in which, the Agency must reassess 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.

    ...

    (5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:

    (a) have regard to the participant’s statement of goals and aspirations; and

    (b) have regard to relevant assessments conducted in relation to the participant; and

    (c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and

    (d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and

    (e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and

    (f) have regard to the operation and effectiveness of any previous plans of the participant.

    ...

19. For the purposes of s 33(5)(c), the CEO must be satisfied of the matters set out in s 34:

    (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.

    (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 any of paragraphs (1)(a) to (f).

20. The NDIA must comply with an approved SOPS (s 39) and a participant (or a person on behalf of a participant) who receives funding under the NDIS must spend the money in accordance with the person’s plan (s 46). Provisions for the management of funding for supports in a participant’s plan are set out in Division 3, Part 2, Chapter 3.
21. It is within this legislative framework the ambit of ‘supports’ which may be provided or funded must be considered. The word ‘supports’ is defined inclusively in s 9(1) to include general supports. The term general support is given meaning in s 13:

    (1) The Agency may provide general supports to, or in relation to, people with disability who are not participants.

    Note: Chapter 3 deals with the provision of general supports to, or in relation to, participants.

    (2) In this Act:

    general support means:

    (a) a service provided by the Agency to a person; or

    (b) an activity engaged in by the Agency in relation to a person;

    that is in the nature of a coordination, strategic or referral service or activity, including a locally provided coordination, strategic or referral service or activity.

22. Provision is made in s 17, 27, s 34(2), s 35 and s 209 for the making of rules prescribing matters for and in relation to Chapter 3 of the NDIS Act. Rules of present relevance include the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports Rules), which have the force of law and provide that:

    General criteria for supports

    5.1 A 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.

    5.2 The 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

    5.3 The 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.

EVIDENCE

23. The Respondent lodged a bundle of documents pursuant to its obligations under section 37 of the AAT Act on 12 January 2022 (T Documents) comprising 267 pages. This included documents provided to the Agency by ZJSG in support of her claims. It also lodged two Statements of Facts, Issues and Contentions (SOFIC) dated 10 February 2023 and 14 April 2023, comprising 9 pages; a joint tender bundle (Joint Tender Bundle) dated 22 June 2023 comprising 1,737 pages; a copy of ZJSG’s current NDIS Plan, dated 18 January 2023, comprising 14 pages; and further submissions requested by the Tribunal in relation to permanence and the line of authority in HRZI, comprising 11 pages, on 7 July 2023.
24. The bulk of the documents lodged by ZJSG were contained in the T Documents and the Joint Tender Bundle other than a bundle of documents lodged on 29 April 2022; a bundle of documents lodged on 22 December 2022; a letter from Dr Joel Maamary (Registrar for Dr S Bolito) dated 30 January 2023; and an email and attachments of 4 July 2023 relating to the request from the applicant for medications for chronic pain to be included in her plan.

BACKGROUND

25. ZJSG has been a participant in the NDIS since 2020 when it was determined that she met the “disability” requirements set out in s 24 of the NDIS Act. The disabilities for which she was granted access to the scheme are related to her psychosocial impairment.
26. ZJSG lives alone in a Department of Housing townhouse in Sydney, New South Wales. She received support from support workers funded under her NDIS Plan. She also receives some informal assistance from her father, but he is ageing and they have a fractious relationship.^[4]

First NDIS Plan – 3 April 2020

27. On 3 April 2020, a delegate of the CEO of the NDIA (CEO) approved a statement of participant supports (First SOPS), resulting in the commencement of an NDIS plan for ZJSG on 3 April 2020 (First NDIS Plan).^[5] The First SOPS was for a notional duration of one year. This plan provided for core supports totalling $38,098.02, made up of continence products and travel; capacity building supports of $11,709.91, including improved daily living ($5,548.14) and support co-ordination ($4,706.88); and $500 in capital supports for low-cost assistive technology.

Second NDIS Plan – 18 June 2021

28. On 18 June 2021, a new statement of participant supports (Second SOPS) was approved for ZJSG for a notional duration of two years (Second NDIS Plan).^[6] This plan included core supports for continence products, assistive technology, assistance with daily activities and transport of $98,602.94 ($49,301.47 per annum). It also included capacity building supports totalling $26,851.05 ($13,425.53 per annum). This included improved daily living of $11,639.40 ($5,829.17 per annum) with specific provision for 30 hours each of podiatry and occupational therapy; and $12,472.50 ($6,236.25 per annum) for a psychosocial recovery coach.

Third NDIS Plan – 11 November 2021

29. On 11 November 2021, following a change of circumstances review request made by ZJSG, a new statement of participant supports (Third SOPS) was approved for ZJSG for a notional duration of two years (Third NDIS Plan).^[7] This plan included core supports for continence products, assistive technology, assistance with daily activities (including assistance with self-care, personal domestic activities, house cleaning and yard maintenance); and transport totalling $79,508.62 ($39,754.31 per annum). It also included capacity building supports of $26,851.05 ($13,425.53 per annum), as in the Second NDIS Plan. ZJSG sought review of this plan.

Internal review decision – 19 November 2021

30. On 11 and 12 November 2021 ZJSG contacted the Agency by email seeking a review of the Third NDIS Plan. In particular, she sought for her eclectus parrot to be funded as an assistance animal, and an increase to her funding across all categories. On 19 November 2021 the Agency decided that the eclectus parrot did not meet the criteria to be funded as an assistance animal, and was effectively a pet, which would not be funded by the NDIS. It also did not make any additions to ZJSG’s core, capacity building, or capital supports. This was the decision under review by the Tribunal.

Fourth NIDS Plan – 18 January 2023

31. Following a remittal by the Tribunal, on 18 January 2023 the Agency made a new statement of participant supports (Fourth SOPS) for a notional duration of fifteen months (Fourth NDIS Plan).^[8] This plan included core supports for continence products, assistive technology, assistance with daily activities (including assistance with self-care, personal domestic activities, house cleaning and yard maintenance); and transport totalling $100,331.42 ($80,265.14 per annum). It also included capacity building supports of $18,631.49 ($14,905.19 per annum), and capital supports of $325.

ISSUE BEFORE THE TRIBUNAL

32. The Tribunal must undertake merits review of the decision under review. The Tribunal will stand in the shoes of the internal reviewer who made a decision to approve a plan for ZJSG, containing SOPS, plan management and a reassessment date. QDKH v National Disability Insurance Agency^[9] confirmed that the Tribunal has jurisdiction to look at all the reasonable and necessary supports for ZJSG, including those supports raised in the course of these proceedings.^[10] The Tribunal must remake the decision to come to the correct or preferable decision on the evidence before it.^[11]

The Applicant’s requested supports

33. ZJSG requests the following:
    • That her parrot be accepted to be an assistance animal and support costs of $13,494 per annum be funded;^[12]
    • Fortnightly psychology, plus pain psychology;^[13]
    • Weekly podiatry appointments with consumables such as compression socks and orthotics. The provided quote for two years of podiatry and consumables is $19,938.18;^[14]
    • Consumables, low-cost assistive technology and PBS and non-PBS medications of an unspecified amount;^[15]
    • 24 hours per week assistance with personal and social activities;^[16]
    • 9 hours per week of cleaning assistance;^[17]
    • 7 hours per week of personal assistance;^[18]
    • 20 hours per annum of occupational therapy;^[19]
    • 84 hours per annum of exercise physiology;^[20]
    • Unquantified funding for household furniture, including:

a. A new bed frame;

b. Storage including 2 ‘tallboys’ and 1 ‘lowboy’;

c. Display cabinet; and

d. 2 small tables.^[21]

The Respondent’s Position

34. The Respondent is of the view that the supports requested by ZJSG are not reasonable and necessary and do not meet the Rules. Instead, the Respondent proposes the following:
    • 16 hours of psychology (made up of 12 hours of psychology, 2 hours of report writing and 2 hours with a mental health occupational therapist);
    • 75 hours per annum which ZJSG can elect to use to fund her preferred combination of psychosocial recovery coaching and support coordination (although it notes that most participants only have one or the other);
    • 30 hours per week of assistance with social and community activities, cleaning and personal care;
    • 60 hours per annum for ZJSG to spend on a combination of occupational therapy, podiatry and physiotherapy;
    • 7 hours for an assessment by a continence nurse.
35. The Respondent’s position is that the parrot does not meet the criteria to be classified as an assistance animal and there is no evidentiary basis for an eclectus parrot to be considered an assistance animal. The expenses of the parrot cannot be funded by the NDIS. The Respondent states that costs claimed are approximately five times the costs of maintaining an assistance animal, and that there are other, cheaper, supports which are likely to be effective and beneficial. Therefore, the parrot could not be seen as value for money. The Respondent accepts that the parrot provides ZJSG with companionship and that her lived experience is that she obtains a benefit from her relationship with it.^[22]
36. The Respondent submits that the evidence does not support funding for exercise physiology for ZJSG’s anxiety and chronic pain. The Respondent also submits that the requested household furniture is not a reasonable and necessary support; does not relate to ZJSG’s disability, and is a day-to-day living cost, so cannot be funded under the NDIS due to Rules 5.1(b) and (d).

ZJSG’S IMPAIRMENTS

37. ZJSG’s treating psychiatrist, Dr McLean, says that he first saw ZJSG on 26 August 2005 and has diagnosed ZJSG with the following conditions:

    (a) major depression;

    (b) anxiety;

    (c) social phobia.^[23]

38. ZJSG also argues that she has the following permanent impairments: chronic pain associated with endometriosis; and functional neurological disorder. ZJSG has had a hysterectomy for endometriosis, which improved her pelvic pain.^[24] Nonetheless, she has continued to have chronic pelvic pain and has engaged with a multi-disciplinary pain service.^[25] The diagnosis of functional neurological disorder has been confirmed by Dr Sam Bolitho, neurologist.^[26] ZJSG is seeking supports in respect of all of these conditions.
39. The Respondent argues that it is open to the Tribunal to find that ZJSG does have these impairments, but that the evidence before the Tribunal does not establish that these impairments are permanent and would therefore satisfy the “disability requirements” set out in section 24 of the Act. Consequently, the Respondent argues that no supports can be provided in respect of them.^[27]

DOES ZJSG HAVE CHRONIC PAIN AND FUNCTIONAL NEUROLOGICAL DISORDER?

40. The Tribunal is satisfied that ZJSG has the diagnoses of chronic pain and functional neurological disorder. A diagnosis of chronic pain is referred to consistently in the medical documentation including a letter from Ms Jackie Little, an occupational therapist from NSW Health, dated 20 December 2019,^[28] which says that ZJSG has permanent abdominal dysfunction with pain and diarrhoea secondary to Grade 4 endometriosis and peritoneal adhesions; notes from her consultations with the pain service at St Vincent’s Hospital between 2020 and 2021;^[29] clinical notes from her treating general practitioners;^[30] and letters and notes from the gynaecology clinic at the Royal Hospital for Women, which state that ZJSG also suffers from visceral hyperalgesia.^[31]
41. Dr Sam Bolitho, a neurologist, has diagnosed ZJSG with functional neurological disorder and she has been under the care of a neurology clinic.^[32] ZJSG has no active neurological treatment and is only attending regular reviews.
42. The evidence before the Tribunal indicates that both these conditions presently cause ZJSG to experience functional impairment. None of the medical evidence describes either of these conditions as permanent. ZJSG has engaged with a pain service, but the Tribunal notes that she voluntarily disengaged from the service in 2021, briefly re-engaged in 2022, and according to the notes from her gynaecological pain physician, “boom/bust” is still evident; and ZJSG remains hypervigilant to pain and has not completed the recommended online pain psychology and education program.^[33] This indicates to the Tribunal that ZJSG’s pain is not fully managed and could not be considered to be permanent even though it is of a long-standing nature.
43. The functional neurological disorder also could not be considered to be permanent. This is a complex disorder. Some people with this diagnosis make a full recovery, others require ongoing support.^[34] Indeed, according to Senior Occupational Therapist Ms M Manlapid, who carried out a home visit with the Applicant on 9 March 2023:

    FND is a broad diagnosis that encompasses neurological symptoms that cannot be explained by a neurological disease or other medical condition. Symptoms for [ZJSG] include reduced mobility and reduced ability to swallow and can vary in severity and timing. FND is also associated with pain, anxiety, depression, insomnia and fatigue, all of which [ZJSG] experiences on a daily basis. The cause of FND is unknown and can be triggered by a reaction to stress or psychological or physical trauma.^[35]

44. The evidence before the Tribunal does not indicate that ZJSG will permanently experience functional neurological disorder at the same level of impairment. In fact, her neurologist says that she has made a marked improvement with the ongoing provision of intensive physical therapies, and he strongly supports the continuation of her physical therapy.^[36] The evidence indicates that ZJSG is capable of improving her level of functional impairment with physical therapy and so this condition would also not be considered to be permanent.

IS PERMANENCE REQUIRED?

45. ZJSG is seeking a number of supports which relate to her conditions of chronic pain and FND. The Respondent takes the position that she is unable to receive supports for these disabilities through the NDIS as they do not meet the requirement of being permanent impairments. Essentially, this is an argument that these impairments would not meet the requirements for access to the NDIS under the disability requirements contained in section 24; and that only impairments which would meet these requirements are eligible for supports provided by, or funded by, the NDIS. This is an argument which has been considered by the Court and this Tribunal on many occasions and the prevailing view has been that reasonable and necessary supports are determined by reference to any impairment or impairments in relation to which a participant meets, or would meet, the disability requirements under s 24 or the early intervention requirements under s 25.
46. The decision of DP Forgie in VGCP and National Disability Insurance Agency (VGCP) was that a participant could receive supports for any permanent impairment for which they had been granted access to the Scheme.^[37] In McLaughlin and National Disability Insurance Agency (McLaughlin),^[38] DP Humphries clarified that this includes any impairments in relation to which a participant would meet the disability requirements under s 24, even if these impairments were not impairments for which a person had originally been granted access to the Scheme.^[39] The submissions of the Agency in the present matter confirm that this remains the Agency’s view and the basis upon which it states that it makes decisions about reasonable and necessary supports.
47. In McLaughlin, DP Humphries appeared to go even further, indicating that a person may be able to receive reasonable and necessary supports in respect of disabilities which do not meet these requirements:

    Implicit in s 24, therefore, is the recognition that not every disability will meet the disability requirements and therefore qualify a person to be a participant to the NDIS. But in no sense does s 24 purport to be a definition of disability for the purposes of the Act or Rules more broadly....^[40]

    ...Furthermore, nothing in ss 20, 21 or 24 envisages that a decision on a person’s access to the NDIS must be referenced back to a particular impairment. The decision required by s 20(1)(a) is whether or not a person meets the access criteria. Accordingly, any findings on specific impairments are merely part of the reasons of the decisionmaker for being satisfied that the disability requirements in s 24 are met. If it were intended that subsequent decisions under the Act – including the question of reasonable and necessary supports under s 33 – were intended to be governed by the specific impairments that had been determined to meet the requirements of s 24 in the access decision, one would expect that to have been made clear in this Part by way of specific nomenclature that was then employed in subsequent areas of the Act.

    Also significant is the fact that access to the NDIS might occur via s 21(2) rather than s 21(1), in which case the person might be granted access to the NDIS not by satisfying the age, residence and disability requirements but solely because the person is a participant in a prescribed program (s 21(2)(b)(iii))...^[41]

48. DP Humphries then refers to the statutory mechanisms for a person ceasing to be a participant in the Scheme contained in s 29 and s 30 of the NDIS Act, and the absence of any mechanism for a systematic review of whether a person remains a participant in the Scheme. On this point, he concludes:

    ...That being the case, it would be impractical if the supports that a participant can obtain through the NDIS were limited to supports which related to the impairments which qualified them for access to the NDIS under s 24. After all, one can expect that over a lifetime a person’s impairments may change, whereas their application for access to the NDIS occurs once, at a particular point in time...^[42]

49. Ultimately, DP Humphries states that:

    ...the disability referred to in rule 5.1(b) of Supports Rules is not a reference to a disability by virtue of which Ms McLaughlin was granted access to the scheme in 2015, but rather to any disability with which she presently lives...^[43]

50. While this decision does not expressly state that “disability” includes disabilities which are not permanent, and/or do not meet the disability requirements set out in s 24 of the NDIS Act, the implication is certainly there in the reasoning. It states that the word “disability” should be construed broadly; that s 24 of the NDIS acknowledges that some disabilities will meet the access criteria (which includes permanence) and some will not; that NDIS plans are of a relatively short duration so that new impairments can be taken into account as they arise; and that supports are available for a participant in the scheme for “any disability with which [they] presently [live]” (Tribunal’s emphasis). Disabilities which are of a temporary, or long-term but not permanent, nature are no less disabilities. It was open to DP Humphries to find that the disability referred to in rule 5.1(b) of the Supports Rules applies to any disability with which a person permanently lives. He did not find this, instead using the word “presently” which imports a temporal link between a person’s disability and the reasonable and necessary supports in their current plan. This may be a disability which is present at the current time but may not have been present at the time a person was granted access to the scheme, or at another later time.
51. The Tribunal notes judicial reasoning in the Federal Court of Australia decision in Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan), in which Mortimer J stated:

    It is clear from the legislative scheme that the decision whether a person is or is not a participant is the threshold decision under the scheme, and the decision which enables access to the majority of benefits and funding available under the NDIS. However, what benefits and supports are provided, and how they are funded is subject to a separate decision-making process.^[44]

52. The statutory task of deciding whether access to the NDIS should be granted, and the statutory task of deciding what are the reasonable and necessary supports to be funded in the SOPS are to be kept separate. The structure and provisions of the NDIS Act do not import the qualifications under the access criteria set out in s 24 (or s 25) into decisions about what supports are reasonable and necessary. In fact, judicial reasoning indicates that this is expressly not the case. If so, continuing to import the requirements of s 24 of the Act to inform decisions about disabilities for which reasonable and necessary supports may be provided may well be an error of law.
53. This issue was considered recently by the Tribunal in the matter of HRZI.^[45] In that case, the Tribunal found that reasonable and necessary supports are not limited to supports for accepted impairments and that there is no justification for the narrow construction of the terms “disability” and “supports” as favoured by the Agency.^[46] Further, the provision of reasonable and necessary supports and s 33 are not limited to impairments which meet the disability requirements set out in s 24 of the NDIS Act.^[47] The reasoning in relation to this is referred to as the “Nexus Issue”.^[48] The Tribunal noted that the NDIS Act provides for progressive decision-making by way of variation, and that new impairments caused by changes in medical conditions are recognised in this manner, as there is no provision for a person to apply for access to the NDIS for a second or subsequent time in relation to additional impairments.^[49]
54. The Tribunal held that the words “disability” and “impairment” are used for distinct purposes in the NDIS Act and should not be used interchangeably:

    ... A person’s disability may not be confined to or adequately described as ‘an impairment’ to which it is attributable. The disability may be multifactorial and attributable to more than one impairment, as the plain words in s 24(1)(a) clearly contemplate.

    116. The word attributable has particular work to do. For the purposes of s 24, it refers to a causal connection tween a person’s disability and the impairment or impairments from which it results. The threshold of attributability does not import a sole cause test, requiring the person is a disability to be solely or only attributable to one or more impairments which meet the thresholds in s 24(1)(a),(b),(c) and (d), and it does not require all impairments to which a person’s disability might be attributable to meet those thresholds. The threshold of attributability is met if the person has a disability that is attributable to one or more impairments which meet those thresholds...^[50]

55. In HRZI, the Tribunal considered the reasoning in National Disability Insurance Agency v WRMF,^[51] where the Court found that the supports to be provided to a person who qualifies as a participant in the scheme are intended to accommodate an individual’s particular impairment and assist them to be a participating member of the Australian community. In HRZI the Tribunal found that, in order for supports to be provided or funded under the NDIS, it must be established that the supports are reasonable and necessary:

    in the particular circumstances of the participant, taking into account what has qualified the person as a participant, and the links between a person’s impairment and their full participation in the community.^[52]

56. The Tribunal rejected the Agency’s argument that reasonable and necessary supports can only be provided in relation to impairments which meet the access requirements:

    ...the NDIA’s assertion supports must be viewed through the lens of a participant impairment which meets the thresholds in s24(1) or s 25(1) misconstrues and unduly narrows the statutory focus on disability...

    ... the key determinant which must steadily be kept in mind is the essential nexus between the support and the person’s qualifying disability. If the support is established as sufficiently related to the person’s disability, on which their status as a participant relies, the support may be provided or funded under the NIDS if all other essential criteria and Rules are met.^[53]

57. Ultimately, in HRZI, the Tribunal found that impairments which meet the thresholds in s 24(1) or s 25(1) of the NIDS Act must be taken into account in determining reasonable and necessary supports. Other impairments to which a person’s disability is attributable may be taken into account as long as there is a sufficient relationship to the person’s disability and the other requirements set out in the NDIS Act and the Rules.^[54]

    Respondent’s Submission on the reasoning on HRZI

58. In its preparation to determine this matter, the Tribunal came to the view that the reasoning in HRZI, which may be seen to somewhat extend the position on the provision of reasonable and necessary supports, would be relevant to the determination of the reasonable and necessary supports which the NDIS should provide to ZJSG. The conclusion reached by the Tribunal in HRZI was quite different to the position put by the Agency in that matter. Consequently, the Tribunal asked the Respondent for submissions on this aspect of the present matter.

59. The Respondent maintained its position that “as ZJSG’s chronic pain and Functional Neurological Disorder have not been shown, on the evidence, to meet the s 24 disability requirements that would give access to the NDIS if she were not already a participant, supports cannot be funded by the NDIS to assist her with these.”^[55] The Respondent noted the permanence is only one of the necessary criteria which would be required to be met.
60. The Respondent submitted that the terms “disability” and “impairment” are inextricably linked and that disability is not meaningful to the task of determining reasonable and necessary supports:

    ...disability is a term that encapsulates the effect of a person’s impairments. A participant may have multiple impairments, but will only have a singular disability. The concept of disability does not, therefore, lend itself to identifying and evaluating supports that will assist a participant, rather this needs to be based on their impairments.

In HRZI the Respondent submitted that for a support to be provided, it must be intended to help the participant with an impairment that would satisfy the eligibility criteria for access to the NDIS. This position recognises the importance of managing a participant’s evolving needs, whilst avoiding inequitable outcomes that would arise if supports had to be funded for any impairment claimed, however slight and temporary, purely because the person is an NDIS participant after having gained access for an unrelated disability.^[56]

61. The Respondent referred to its current position as set out in the NDIS Guideline ‘Fair supports for your disability needs’^[57], which tells participants and potential participants that if they ask for supports to help with impairments that were not part of their access eligibility assessment the Agency needs to be satisfied that the impairment would meet the access criteria. This Guideline notes that a person does not need to make a new access request if they ask for supports to help with an impairment that was not part of their access eligibility assessment.
62. The Respondent did not think that the need for a relationship between the support sought and a person’s disability, as set out in HZRI was sufficient:

    ... the Respondent contends that merely being an NDIS participant does not entitle a person to supports for impairments that do not meet the disability requirements. If no threshold criteria apply, a participant could obtain supports for transient impairments of minor consequence. The Tribunal considered rule 5.1(b) of the NDIS Supports for Participants Rules would avoid such a situation, but in the absence of other criteria a participant would only need to claim it related to their disability to circumvent this.^[58]

63. The Respondent noted that its position is consistent with the reasoning in VGCP. In relation to HRZI, the Respondent noted that the term ‘qualifying disability’ used by the Tribunal is not used anywhere in the NDIS Act, and the Respondent contends that the focus must be on compliance with the actual legislative provisions. The Respondent submits that, putting aside the exceptional circumstances provided in s 21(2), a person will only meet the access criteria in s 21, enabling them to become a participant in the NDIS, if they meet the requirements in s 24(1) or s 25(1). Having a disability attributable to an impairment will only satisfy s 24(1)(a), and a person cannot become a participant on this criterion alone. The Respondent submits that “it is self-evident that there can be no ‘qualifying disability’ other than a disability that has met all of the ‘disability requirements’ in s 24(1)”.^[59] There is also no provision which enables a participant to rely on impairments to which they themselves may attribute their disability, but which may not meet the disability requirements, as a basis to entitle them to supports.
64. The Respondent noted that in support of its construction that a participant is entitled to supports for their disability, including any impairments to which it is attributable regardless of whether they meet the s 24(1) criteria, in HRZI the Tribunal cited McLaughlin and Goodliff and National Disability Insurance Agency [2021] AATA 5022 (Goodliff). The Respondent submits that neither of those cases considered the question of whether a participant would be eligible to receive supports to address an impairment that does not meet the disability criteria and that:

    in McLaughlin the Tribunal expressly adopted the Respondent’s submissions, which acknowledged that supports are not limited to the specific impairments that met the s 24 requirements at the time of the access decision. The Respondent maintains this position.^[60]

65. The Respondent agrees that a person is entitled to receive supports in respect of impairments that did not meet the s 24 requirements at the time of the access decision, “but submits it does not follow that a participant can receive support for any impairments to which they attribute their disability, however transient and minor those might be.”^[61]

66. The Respondent notes that the Tribunal went on to state in HRZI:

    “If the support is established as sufficiently related to the person’s disability, on which their status as a participant relies, the support may be provided or funded under the NDIS if all other essential criteria and Rules are met.”

The Respondent considers this statement in HRZI accurately reflects its position, which it explained as follows:

The ‘person’s disability on which their status as a participant relies’ must, by necessary implication, be a disability that meets the requirements in s 24(1)) – otherwise they would not have become a participant. It flows from this that supports relating to a disability falling within this description will also relate to impairments that meet the access criteria, and such supports can be provided (as long as other criteria are satisfied).^[62]

67. The Respondent did not accept the statement in HRZI to the effect that fact finding for the purposes of a statement of participant supports “is directed to the participant’s disability and related support needs”.^[63] The Respondent found no support for that view in Chapter 3, Part 2 of the Act (Participants’ plans). Moreover, the Respondent considered that the assessment of reasonable and necessary supports pursuant to s 34(1) requires a level of specificity that could not be met by considering the participant’s overall disability and must instead take into account their impairments to be meaningful. Further, the Respondent submitted that in relation to some subsections of s 34(1), the CEO could only be satisfied the criterion is met if the proposed support will assist with an impairment that would meet the s24(1) requirements:

    For example:

    a. A support to help with an impairment that is temporary and/or does not result in a substantial reduction in functional capacity and/or does not affect the person’s capacity for social or economic participation, is unlikely to 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”, as required by s 34(1)(c);

    b. Funding or providing a support to help with an impairment that is temporary and/or does not result in a substantial reduction in functional capacity and/or does not affect the person’s capacity for social or economic participation, would arguably not take account of what it is reasonable to expect families, carers, informal networks and the community to provide, as required by s 34(1)(e);

    c. A support to help with an impairment that is temporary and/or does not result in a substantial reduction in functional capacity and/or does not affect the person’s capacity for social or economic participation, is unlikely to be most appropriately funded or provided through the NDIS, as required by s 34(1)(f). ^[64]

68. The Respondent maintained the position that disability and impairments can only be considered in unison, and supports are approved to help with a participant’s impairments rather than being aimed at a singular, overall disability:

    This approach means changes to impairments over time can be managed, without being constrained to considering only the disability and impairments evident at the time the person became an NDIS participant. At the same time, the Respondent contends that supports can only approved for impairments meeting the requirements of ss 24(1) or 25(1), otherwise a participant could claim supports for any impairment to which they attribute their disability.^[65]

Consideration

69. There is no definition of the term “disability” in the NDIS Act. The context in which it is used, including in s 24, makes it clear that the NDIS Act contemplates many types of disabilities, some of which will meet the criteria for access to the Scheme, and some of which will not. Mulligan states that the provisions of s 24 are merely a threshold test. The severity and permanency of a person’s condition, and the effects of that condition are measured for this purpose using the concept of impairment.^[66] Consequently, ‘[t]he assessment to be undertaken is avowedly functional, and multifaceted’.^[67]
70. The matters which must be included in a participant’s plan are set out in s 33 of the NDIS Act. This section says that a person’s SOPS must include both general supports and reasonable and necessary supports. The provision of reasonable and necessary supports are set out in s 34 of the NDIS Act. Neither of these sections use the terms “disability” or “impairment”. Nor do they prescribe or proscribe an assessment of impairment being one of the mechanisms by which the Agency forms a view about the supports which should properly be provided. In deciding whether or not to approve a SOPS, the CEO of the Agency must have regard to the participants statement of goals and aspirations; have regard to relevant assessments conducted in relation to the participant; be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and apply the Rules (ss 33(5)).
71. The Tribunal considered the position taken in HRZI and the Respondent’s submissions (which essentially mirrored the Respondent’s submissions in HRZI), and came to the view that the positions are not nearly as different as they first appear. The focus of the NDIS Act is squarely on disability. The provision of supports to a participant, including reasonable and necessary supports, is undertaken, in part, for the purpose of supporting the independence and social and economic participation of people with a disability (ss(3)(c)) and to promote provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community (ss(3)(g)) as set out in the Objects of the NDIS Act. This presupposes that people with a disability face barriers in independence, social and economic participation and full inclusion in the community due to their disability. Some of the objects of the NDIS Act are to support people with a disability to overcome these barriers by the provision of both general, and reasonable and necessary, supports. The object of the NDIS Act is not to address impairments, but disability.
72. The Tribunal agrees that reasonable and necessary supports must be provided for the purpose of a person’s disability. It also finds that there is no bar in the NDIS Act which would prevent the Agency using the concept of impairment as a type of “shorthand” to help it fully understand and address the supports a participant requires. Given the requirement in ss33(5) for the CEO to have regard to relevant assessments conducted in relation to the participant it is likely that some, if not all, of these assessments will be functional in nature and therefore directed to a participant’s level of impairment. Nonetheless, it is a person’s disability to which the supports to be provided must relate. This, as a concept, sits at a higher level than a person’s impairment and is essentially the sum of their impairments, having regard to how the impairments interrelate and affect each other at any point in time.
73. This brings the Tribunal to the question of whether or not a participant (whose ongoing participation is not in dispute) is entitled to supports in respect of any disability with which they may presently be living or only disabilities that meet the access requirements set out in s 24 and s 25 of the NDIS Act.
74. Given the judicial guidance that the threshold test of access is an entirely separate decision to those decisions in relation to reasonable and necessary supports to be provided to a participant,^[68] and the existing jurisprudence in this Tribunal, the Tribunal could only form the view that a participant is entitled to seek supports in respect of any disability with which they are presently living. While the Tribunal accepts that the Agency needs some criteria by which to determine whether or not a support should be provided, a person’s impairment or the nature of their disability in the form of its severity or longevity are not the correct criteria. This does import the considerations for the first decision in relation to access into the second decision about the supports to be provided. The Court has held that these two decisions are separate decisions.^[69] The criteria on which to base the second decision exist in the form of s 34 of the NDIS Act and the Support Rules. As the Respondent has so accurately pointed out in their submissions, the vast majority of requested supports for conditions of shorter duration or minimal severity would fall foul of the provisions of s 34 and the Support Rules. They would likely not be found to be value for money or to be best provided by the NDIS.
75. The requirements in s 34(1) have been said to be both “stringent” and “cumulative” in that each one of them must be met in relation to each claimed support.^[70] Unless the decision-maker is positively satisfied that the criteria have all been met in respect of a given claimed support, the decision-maker is bound to decline to approve that claimed support.^[71] This is a difficult test, which means that many claimed supports will not be approved.
76. It is uncontroversial that a participant may be provided with reasonable and necessary supports in respect of disabilities which meet the access criteria in s 24 or s 25 of the NDIS Act, even if those disabilities were not apparent at the time of the access request. The Tribunal finds that a participant may also be provided with reasonable and necessary supports in relation to any disability with which they are presently living, subject to the requirements of s 34 of the NDIS Act and the Support Rules being satisfied.

REASONABLE AND NECESSARY SUPPORTS

77. ZJSG’s current NDIS plan, dated 18 January 2023 contains the following:

My goals

Short-term goal

To be able to live in a safe environment with as much independence as possible.

How I will achieve this goal How I will be supported

Short-term goal

To increase my mobility, muscle strength and stamina to improve my overall stability and

reduce the risk/frequency of falls and pain.

How I will achieve this goal How I w

Medium or long-term goal

To be able to safely access appointments in the community to maintain my overall health and wellbeing without relying on my father for assistance.

How I will achieve this goal How I will be supported

Medium or long-term goal

To move to a home that is suited to my needs and increases my overall safety.

How I will achieve this goal How I will be supported

78. For a requested support to be funded it must meet both the provisions of s 34 of the NDIS Act and the Support Rules. Regard must be had to ZJSG’s statement of goals and aspirations. While there is no formal onus of proof on ZJSG, ZJSG must be able to put forward sufficient evidence that the Tribunal is positively satisfied that all the statutory requirements are met.^[72]

Funding of parrot as assistance animal

79. The first support requested by ZJSG is that her eclectus parrot be recognised as an assistance animal and funded for maintenance costs and continued upkeep. In the document ‘Avian fees’, ZJSG estimates these expenses at $13,494.00 per year.^[73] This includes expenses such as $1,000.00 per year in veterinary fees; $1,200.00 per year for fruit; $2,264.00 per year for vitamins and $4,800.00 for cleaning. In support of this request ZJSG has provided a statement about the benefit of the parrot to her and the activities the parrot performs which in her mind differentiate it from a pet;^[74] a report from Tailai O’Brien, trainer and behaviour consultant at an animal hospital, dated 4 November 2020,^[75] about the benefits of the eclectus parrot as an emotional support animal; and a letter from Dr Gregory McLean, psychiatrist, dated 6 September 2020,^[76] which says that the use of ZJSG’s companion animal (the parrot) “is a valuable factor for the treatment of her mental illness” as it will assist her to improve her self-esteem and independence and therefore reduce her vulnerability to relapse.^[77]
80. ZJSG also provided two versions of the NDIS assistance animal template - one completed by an occupational therapist, Ms Evans, and one completed by ZJSG.^[78] Ms Evans reports that during her assessment the parrot positioned himself to always be within three metres of ZJSG and was observed following or flying to be within a close distance as ZJSG moved around her home. Specifically, Ms Evans states that the provision of the requested support would assist ZJSG with emotional regulation by de-escalating heightened mental health episodes. Ms Evans further states that ZJSG has “not made an attempt on her life” since she has had the parrot.^[79]
81. Ms O’Brien states that the eclectus parrot can be used for both animal assisted therapy and as an emotional support bird.^[80] Ms O’Brien states that she has conducted an unspecified assessment with the parrot and that he is capable of cognitive behaviours such as screeching loudly to alert ZJSG the washing machine has finished its cycle and that the food in the microwave is ready; or when there is someone at the door.^[81] Ms O’Brien states that the parrot is a constant companion, and flies to be within sight of ZJSG at all times when she is at home. Ms O’Brien states that the parrot is “highly recommended for Emotional Support Bird programme funding”.^[82]
82. ZJSG says that the parrot is comparable to an assistance animal by assisting her as follows:

a) De-escalating her mental health episodes by providing an immediate distraction and re-assuring her in times of extreme anxiety;

b) Providing comfort by flying to be beside her when she becomes distressed;

c) Wearing a harness which attaches to ZJSG’s wrist when leaving the house, so assisting with community access;

d) Providing a barrier to other people if needed;

e) Using his ‘alarm screech’ in times of danger (for example when people have tried to break into the house);

f) Using his ‘reminder’ screeches (for example when the microwave or washing machine beeps);

g) Assisting with her overall mental health; and

h) Caring for the parrot provides ZJSG with a routine and motivation to complete self-care tasks.^[83]

83. ZJSG contends that the comparable support would be a psychiatrist 24 hours per day, 7 days a week.^[84] She also notes that the parrot has a life span of up to 45 years, which is much more than a dog, being the more normal type of assistance animal, and therefore the parrot is value for money.^[85]
84. ZJSG has had the parrot for around ten years. The parrot provides her with companionship and emotional support and has been trained to fly to her when it senses she is distressed. She generally interacts with the parrot at home, but does have a harness to take him out. The Tribunal accepts that ZJSG subjectively feels better with the parrot around and that the need to care for the parrot assists her to maintain some sort of routine. The Tribunal accepts that the parrot is able to provide ZJSG with emotional support.
85. The Respondent’s position is that the parrot does not meet the criteria to be classified as an assistance animal and there is no evidence base for an eclectus parrot to be an assistance animal. The Respondent’s view is that the parrot does not assist ZJSG with social and economic participation as her main interaction with it is at home. It also rejects her claim that the alternative support would be a “psychiatrist 24 hour 7 days a week”. The Respondent states that costs claimed are approximately five times the costs of maintaining an assistance animal, and that there are other, cheaper, supports which are likely to be effective and beneficial. Therefore, the parrot could not be seen as value for money. The Respondent is of the view that the expenses for the support of the parrot cannot be funded by the NDIS.^[86]
86. The Respondent referred the Tribunal to the Agency’s Operational Guideline, Assistance animals including dog guides (the Assistance Animals guideline), with respect to funding of assistance animals under the NDIS. The Assistance Animal guideline states that:

    An assistance animal is an animal specially trained by an accredited assistance animal provider to help you do things you can’t do because of your disability. These are things the animal wouldn’t naturally do otherwise, like guiding you through crowded places.

    It’s an animal that actively helps you to do things you previously couldn’t do because of your disability. It’s not an animal or pet used for therapeutic or companion support, even if you’ve trained it to do some tasks for you. We also know animals can be good for helping with routines and for social engagement, but these things alone don’t mean it meets the definition of an assistance animal.

87. The Respondent submitted that to assist with assessing whether funding should be provided for an animal as a reasonable and necessary support, the Assistance Animal guideline adopts the recommendations of a report produced by La Trobe University (the La Trobe Report).^[87] This report distinguishes the term ‘assistance animal’ and other terms, including ‘emotional support animal’. Relevantly, the term ‘emotional support animal’ is described as being applicable to:

    ... an animal that provides some sort of emotional benefit for a person with a diagnosed mental illness or condition that has been confirmed by an appropriate health care professional. This illness or condition may or may not constitute a disability. Emotional support animals appear to be functionally indistinct from companion (for example; pet) animals, except that the owner must have a diagnosed mental illness. Unlike assistance animals, emotional support animals typically do not have public access rights in Australia, and no specific training for disability support or public access is required.^[88]

88. The Respondent notes that the example given of an emotional support animal in that document, for the purpose of the definition, is an eclectus parrot used to support a returned soldier who had been diagnosed with post-traumatic stress disorder. The soldier finds that being around the eclectus parrot makes her feel better. The parrot in that example did not have any specific training and the soldier did not take the parrot with her when she left the house. The example notes that the soldier’s treating psychiatrist was impressed with her improvements, and agreed that the parrot probably had a lot to do with it.^[89]
89. The La Trobe report definition, which is that used by the NDIS, defines an assistance animal as:

    an animal that is trained to perform at least three tasks or behaviours which mitigate the effects of a person’s disability. These tasks may or may not be demonstrable on command, depending on the person’s specific needs. They must also be trained to a high level of obedience.^[90]

90. The Assistance Animal guideline states, with respect to the tasks that an animal may perform to help to mitigate the effects of the owner’s disability:

When we talk about the tasks the assistance animal does to help you, we mean active things that:

• the animal wouldn’t naturally do that help you manage your disability

• mean you need less of your other funded supports.

The tasks might be things like:

• open and close doors or fridges

• open and close drawers or cupboards

• pick up dropped items

• reassure you in times of extreme anxiety such as helping you to leave your home when you’re too frightened to go out

• press the button at traffic lights

• take clothes out of the washing machine

• help you find your way around safely, including stopping at kerbs and stairs

• guide you through crowds

• find a spare seat on a bus

• help you find doors on cars and trains

• blocking or being a barrier to other people if needed.

37. There is also an expectation that an assistance animal will be trained to a high level of obedience so that they can safely go to public places that are typically off-limits to animals, such as a train station, café or shops.^[91]

91. The Respondent submits that the Assistance Animal guideline states that although consideration will always be given to the individual situation, generally an animal will not be funded if it does not meet the definition of an assistance animal or dog guide. An animal that does not meet those definitions is “unlikely to be a disability-related support, effective and beneficial, or value for money”.^[92]
92. The Agency explains what type of animal can qualify as an assistance animal on its website.^[93] This says that generally, the NDIA will only fund an assistance animal which has passed, or will pass, each state or territory’s Public Access Test. This ensures that the animal is suitable to accompany and support a participant as they participate in the community.
93. The Respondent further submits that in determining whether funding for an assistance animal is effective and beneficial, the Assistance Animal guideline notes that it is necessary to have regard to evidence from research. This is consistent with rule 3.2 of the Supports Rules, which states:

    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.

94. The Respondent refers to a further report by La Trobe University - Reviewing Assistance Animal Effectiveness, Final Report to National Disability Insurance Agency, 30 September 2016 – which states:

... all existing research on [assistance animals] focuses entirely on dogs. No other species is represented in the literature, even though horses and monkeys are sometimes used as AAs overseas and other animals, such as guinea pigs, have been shown to have positive effects on relevant outcomes, such as lowered arousal in children with ASD, in other settings.^[94]

The Respondent submits that there is no scientific or peer reviewed evidence before the Tribunal with regard to the ability of eclectus parrots, or other birds, to perform the role of an assistance animal. The Tribunal agrees with this proposition. No scientific or peer-reviewed evidence of an eclectus parrot performing the role of an assistance animal has been put before the Tribunal. Taken at its highest, the evidence of Ms O’Brien is that eclectus parrots may be used as therapy or emotional support animals, which are not the same as assistance animals.

95. The Respondent also contends that for the most part the tasks performed by the parrot are not related to ZJSG’s disability:

    ...For instance, neither acting as an alarm in times of danger, nor activating ‘reminder screeches’ to alert the Applicant to signals from household appliances are related to the Applicant’s disability. It is also not clear how blocking or providing a barrier against other people would be related to the Applicant’s disability. To the extent that these tasks may be related to the Applicant’s disability, there does not appear to be any independent evidence verifying the performance of the tasks. Although Ms O’Brien stated in her report that the parrot is capable of screeching loudly to alert the Applicant, it is not clear that Ms O’Brien observed the parrot performing that task...^[95]

96. The Respondent acknowledges that the parrot assists ZJSG with respect to her mental health and anxiety, but submitted that is not sufficient to satisfy the requirement of the Assistance Animal guideline that an animal:

    ...performs three specific tasks that ‘alleviate the effect’ of the Applicant’s disability. Furthermore, the assistance provided by the parrot with respect to distracting, re-assuring, and comforting the Applicant does not appear to involve the parrot performing active tasks at all, as opposed to the parrot providing comfort to the Applicant by its presence...^[96]

97. The Respondent also notes that there has been no evidence provided in respect of any training the parrot has received to perform specific tasks or any other training by an appropriately qualified and accredited assistance animal provider, and no evidence that the parrot has completed a public access test. ZJSG states that she has trained the parrot herself.
98. The Respondent states that ZJSG’s request for funding for the parrot is in the context of an application which also includes requests for increased funding for support workers and psychology. Given that ZJSG has had the parrot for approximately 10 years there is no evidence that the parrot has resulted in a decreased need for other supports.^[97] Further, the Respondent states that the Assistance Animal guideline states that the average funding for maintenance costs for assistance animals is $2,725.99 per year. While ZJSG has provided a budget, she has not provided receipts or invoices or any professional reports in relation to costs, and it is unclear why the costs of maintaining the parrot are estimated to be $13,494.00 per year.^[98]
99. With respect to Rule 5.1(d), on the basis that ZJSG’s parrot is not an assistance animal, the Respondent contends that the costs of the upkeep and maintenance of the parrot is a day-to-day living cost that is not attributable to ZJSG’s disability support needs. For the purposes of Rule 5.2, the Respondent contends that the costs of the upkeep and maintenance of ZJSG’s parrot is neither an additional living cost incurred solely and directly as a result of her disability needs nor ancillary to another support that is funded or provided under ZJSG’s plan.^[99]
100. The Tribunal notes that the NSW Office of Local Government is responsible for registering assistance animals in NSW. It says that an assistance animal in NSW is a dog or other animal that is either:
     1. accredited under a law of a State or Territory that provides for the accreditation of animals trained to assist a person with a disability to alleviate the effect of that disability; OR
     2. accredited by an animal training organisation prescribed by the Commonwealth; OR
     3. trained to assist a person with a disability to alleviate the effect of that disability, and, to meet standards of hygiene and behaviour appropriate for an animal in a public place.^[100]
101. There are currently no laws allowing the accreditation of assistance animals in NSW. There is no evidence before the Tribunal that ZJSG has applied to have her parrot registered as an assistance animal in NSW or has completed a public access test. The Tribunal cannot speculate whether she would be successful in obtaining such registration.
102. There are several types of animal companions. Pets, therapy animals, emotional support animals and assistance animals are all types of animal companions that offer support to people. “Emotional support animal” describes an animal that provides support for a person with a diagnosed mental illness or condition. Ms O’Brien and Dr McLean have both described the parrot as either an emotional support bird or a companion animal. The Tribunal accepts that ZJSG has provided her parrot with some training and that she is also able to take the parrot out of the house. Nonetheless, it could not be satisfied that the parrot meets the training and public access requirements to be an assistance animal. Nor could it be satisfied that an eclectus parrot could even be trained to be an effective assistance animal in accordance with the definition of that term. The Tribunal has no doubt that ZJSG receives a benefit from her relationship with the parrot and that it does assist her to maintain her emotional regulation and a routine. This is not enough for it to be considered an assistance animal. ZJSG’s parrot appears to be an emotional support animal. Emotional support animals are not funded by the NDIS.

103. Further, ZJSG says that the comparable support to her parrot is access to a psychiatrist 24 hours per day, seven days per week, but there is no other evidence that this is the case. There was also no evidence provided that the parrot is more effective and beneficial than other comparable supports. ZJSG contends that the parrot is better value for money than a conventional assistance animal due to its prolonged lifespan, but the Respondent has pointed out that the claimed expenses for the parrot are around five times that of a normal assistance animal, with no invoices or receipts provided. The quantum of the expenses claimed mitigate against any benefits which could be obtained by the animal living longer.

104. There is limited evidence before the Tribunal that, although ZJSG has owned the parrot for around 10 years, it has reduced her reliance on other supports. It does appear that she is less inclined to experience suicidal ideation, but she still says that she sees a psychiatrist weekly and is seeking increased support for psychology. ZJSG mainly interacts with the parrot at home, so the Tribunal could not be satisfied that the parrot facilitates ZJSG’s social and economic participation.

105. The Tribunal finds that ZJSG’s parrot is likely not an assistance animal, but an emotional support animal. It also finds that the parrot does not assist ZJSG to undertake activities to facilitate her social and economic participation; is not value for money; and that there is insufficient evidence to find that it is effective and beneficial having regard to current best practice. Subsections 34(1)(b); 34(1)(c); and 34(1)(d) of the NDIS Act are not satisfied. This is not a reasonable and necessary support and cannot be funded by the NDIS.

Fortnightly psychology sessions

106. ZJSG has requested fortnightly psychology sessions. Her evidence is that she already attends weekly psychiatry appointments and that a psychosocial recovery coach, who is funded by the NDIS, has been helpful to her.^[101] Evidence from her general practitioner shows that she was referred to a pain psychologist and appears to have attended one appointment in around January 2023.^[102] This appears to have been subsequent to a GP mental health care plan of 18 January 2023.^[103] The clinical notes from St Vincent’s pain management service and the Royal Hospital for Women also show that ZJSG has been offered multidisciplinary pain management and pain psychology through the public health system.^[104] There is no report in evidence from the pain psychologist ZJSG attended.
107. The independent occupational therapist who reviewed ZJSG noted in her report of 31 March 2023 that ZJSG was not currently attending psychology as it “did not work in the past”.^[105]
108. While ZJSG’s general practitioner says that he is in support of her seeing a pain psychologist,^[106] there is no evidence presented of why this attendance should be funded by the NDIS when ZJSG presently has access to this through multiple avenues in the health system.
109. Dr McLean notes that ZJSG has been a patient of his for many years and regularly attends for therapy.^[107] He has made no recommendations for ZJSG to have additional psychological support. Dr Chow, ZJSG’s gynaecological pain specialist has signed a letter indicating he is in support of ZJSG receiving pain psychology.^[108]
110. The Respondent accepts that the level of psychological support available to ZJSG under the health system is likely to be inadequate for her needs in addressing the primary disability for which she was granted access to the NDIS. Her current plan does not include psychology but does include access to a psychosocial recovery coach.
111. The Respondent proposes that it is reasonable and necessary for the NDIS to provide 16 hours per annum of psychology services (being 12 hours of psychology, 2 hours of report writing and 2 hours with a mental health occupational therapist),^[109] plus 75 hours per annum which ZJSG can elect to use to fund her preferred combination of psychosocial recovery coaching and support coordination.^[110] The Tribunal notes that, in combination with the psychology services that are available to ZJSG if she re-engages with the pain management program and continues to access her GP mental health referrals, this combination of supports would far exceed that which has been requested by ZJSG.
112. The independent occupational therapist who reviewed ZJSG noted that ZJSG may benefit from re-engagement with psychology to provide her strategies for regulating her emotions and how to cope and manage her anxiety, stress, and depression on a daily basis.^[111] She did not make any recommendation on the number of hours of psychology supports ZJSG should access. The Tribunal notes that at that time ZJSG was not having any psychology as she believed it did not work. There is limited evidence to indicate that psychology will be effective and beneficial for ZJSG if she is of the opinion that it is no use to her and does not engage in the work that is required of a patient. Nonetheless, as ZJSG seeks this support, and the Respondent is of the view that it is worth funding to some extent in ZJSG’s case, the Tribunal agrees that it is certainly worth trying although there would need to be reporting indicating that ZJSG was benefiting from the provision of psychology for it to be funded on an ongoing basis.
113. For the purposes of determining that a support is reasonable and necessary, s 34 of the NDIS Act specifies that the support must meet all the criteria set out in s 34(1). This includes that the support represents value for money s 34(1)(c) and that the support is most appropriately funded or provided through the NDIS s 34(1)(f). Given that ZJSG has psychiatric conditions which are being managed through the health system and that there is some psychological support (including pain psychology) available to her through both the public hospital system and the GP mental health referral scheme, the Tribunal could not be satisfied that the provision of fortnightly psychology and pain psychology to ZJSG through the NDIS would represent value for money, or that the provision of such support is most appropriately funded by the NDIS.
114. The Tribunal is of the view that the offer made by the Respondent of 16 hours per annum of psychological support, plus 75 hours per annum of psychosocial recovery coaching and support coordination is generous and when combined with the other services available to ZJSG through the health system is sufficient to make an effective trial to see if ZJSG derives any benefit from the addition of psychological therapy outside what is available to her in the health system.
115. The Tribunal is satisfied that the Respondent’s proposal provides ZJSG with a level of psychological support which will assist her to meet her goals and aspirations; improve her social and economic participation; and takes account of what it is reasonable to expect other networks and systems to provide. The support is intensive enough that it is likely to be effective and beneficial for ZJSG, having regard to current good practice, as long as she engages fully in the recommended therapies and accesses support coordination. The Tribunal is satisfied that this support also represents value for money.
116. The Tribunal therefore finds that the provision of 16 hours per annum of psychological support and 75 hours per annum for ZJSG to use on her preferred combination of psychosocial recovery coaching and support coordination are reasonable and necessary supports that meet the statutory provisions set out in s 34 of the NDIS Act, and so should be included in ZJSG’s plan.

Weekly podiatry; 20 hours per annum of occupational therapy; and 84 hours per annum of exercise physiology

117. ZJSG seeks weekly podiatry appointments with consumables such as compression socks and orthotics. The provided quote for two years of podiatry and consumables is $19,938.18.^[112] The letter from Kelly May, podiatrist, dated 10 March 2022, says that ZJSG has attended the clinic for the past year for the management of cramps in her legs and feet and for improvements in strength and proprioception in her lower legs. She uses compressive socks and orthotics and Ms May reports that ZJSG “would like to visit the clinic either weekly or fortnightly for 1 hour to incorporate lower limb stretch and flexibility training, as well [as] soft tissue work”^[113] She gives no opinion about what treatment ZJSG actually needs, and only repeats what ZJSG has told her that she would like. She gives no indication of how frequently ZJSG has attended the clinic and although she says that ZJSG reports significant improvements there is no indication that any testing or functional assessment has been done which would indicate that this is actually the case. The letter does not make clear what medical condition or disability may be treated by ZJSG’s attendance at podiatry and provides no evidence about ZJSG’s needs but instead reports her wants.
118. The Respondent notes that ZJSG's current Improved Daily Living budget provides $5,816.00per annum which can be used flexibly by ZJSG to access strategies to increase ZJSG’s functional daily living skills/mobility, strength and stamina and positive behaviour skills. This funding is equivalent to 30 hours of Occupational Therapy but as this funding can be used flexibly, ZJSG is not restricted from using this funding for other therapies, including podiatry. The Respondent further notes that ZJSG is provided with $500.00 per year from her Capacity Building budget which can be used for repairs and maintenance to orthotics.^[114] The Respondent submitted that ZJSG already has sufficient funding to allow her to access podiatry if she so wishes.
119. The Respondent ultimately offered a total of 60 hours per annum for ZJSG to spend flexibly as she wished on a combination of occupational therapy, physiotherapy and podiatry, based, in part, on the recommendations of Ms Manlapid, the independent occupational therapist. Ms Manlapid reports that ZJSG was observed to have reduced mobility and standing balance and tolerance. She was observed to have a left side limp and use a walking stick to mobilise around the home and to assist with transfers from low surfaces. Ms Manlapid was of the opinion that ZJSG is at a very high risk of falls due to her reduced mobility and balance on uneven surfaces.^[115].^[116] ZJSG reported that she has had a number of falls where she has sustained broken bones.^[117] Ms Manlapid notes that ZJSG commenced to see a podiatrist after a fall in which she hurt her toe and was required to wear a cam boot. She is reported to have seen the podiatrist weekly for a period of time.^[118] Ms Manlapid recommends that ZJSG continue to receive podiatry, but makes no recommendation about the frequency or number of hours necessary.^[119]
120. On the evidence before it, the Tribunal was unable to form a view that weekly podiatry appointments and associated consumables represent value for money or are effective and beneficial for ZJSG. While she may like to attend weekly appointments, that is entirely up to her. There has been no evidence put before the Tribunal as to ZJSG’s need for the frequency of sessions or the relatively high amounts of consumables (20 pairs of compression socks and 14 pairs of orthoses and covers) set out in the quote.^[120] The Tribunal could not find that the proposed program is value for money (ss 34(c)). While it is likely that some hours of podiatry and consumables would be effective and beneficial for ZJSG, it is unclear how many. It may be that flexible hours which can be used for a number of therapies, as proposed by the Respondent, would be the best way to accommodate such an uncertain need.
121. Ms Manlapid has also recommended that ZJSG receive 25 hours per annum of occupational therapy, and unspecified hours of physiotherapy and exercise physiology.^[121] The Respondent has accepted that it is reasonable and necessary for ZJSG to receive both occupational therapy and physiotherapy, but not exercise physiology. Ms Evans, the occupational therapist retained by ZJSG for the purpose of seeking a transfer from her housing property to one which is more suitable has recommended that ZJSG receive occupational therapy, psychology, psychiatry, podiatry and physiotherapy for pain management.^[122] She recommended that ZJSG received 20 hours per annum of occupational therapy plus an additional 10 hours for assistive technology applications. She did not recommend exercise physiology.
122. ZJSG has not requested physiotherapy, but both occupational therapists have indicated that she requires it, and the Respondent has indicated that it agrees with this assessment. ZJSG already accesses pelvic physiotherapy through a public hospital, but this only treats one aspect of her disability. Given her chronic pain and mobility impairments, the Tribunal accepts that physiotherapy is a conventional and evidence-based treatment for both issues, and agrees that some amount of physiotherapy is likely to be effective and beneficial for ZJSG. It is also likely to be value for money and to assist ZJSG to meet her goals and improve her social and economic participation through reduced pain, increased mobility and lowered falls risk due to muscle strengthening and therapy. The Tribunal is satisfied that, generally, physiotherapy for ZJSG meets the criteria set out in s 34, although there has been no recommendation made for the number of hours which should be provided.
123. ZJSG has requested 20 hours per annum of occupational therapy. Both parties appear agreed that ZJSG requires occupational therapy, and this view is supported by Ms Manlapid:^[123]

     ...[ZJSG] requires Occupational Therapy services to assess her functional capacity on a yearly basis and to make suitable recommendations for assistive technology or home modifications to increase her independence and safety in the home. [ZJSG] requires assistance with her Housing relocation request and would benefit from Occupational Therapy input for same. It is recommended she receive up to 25x hours of Occupational Therapy for assessments, AT trials, reviews, liaisons with relevant parties, report writing and travel. This is a cost of 25x $193.99= $4,849.75, as per NDIS pricing guidelines...

124. The Tribunal notes that although it was open to Ms Manlapid to specify that ZJSG requires mental health occupational therapy, she has indicated that the type of occupational therapy required is physical. The Respondent has not disputed the requirement for occupational therapy or specified that it must be for ZJSG’s psychosocial disability. The Tribunal will return to this point shortly.
125. ZJSG has requested 84 hours per annum of exercise physiology on the basis that she was for a period attending exercise physiology for 3 hours per fortnight. An undated review report from Paul Cremen, exercise physiologist, says that her sessions have been targeting her anxiety and chronic pain and have included stretching and strength exercises. He says that she has been provided with pain education and mindfulness. Mr Cremen states that ZJSG has consistently attended her sessions and has been practising at home between sessions. He indicated a plan for pacing up her exercise tolerance and says that she requires continued exercise physiology sessions for three hours per fortnight “from now until the end of her NDIS Plan”.^[124]
126. ZJSG’s pelvic pain physiotherapist, Ms Grassi, in a letter dated 7 April 2022, recommends exercise physiology to support ZJSG’s chronic pain. Ms Grassi recommends weekly exercise physiology to provide supervision, structure and support to explore movement options, including a recently prescribed and taught Tai Chi program. Ms Grassi recommends that initially intervention is provided twice weekly, with ZJSG participating in an additional session independently before being tapered down.^[125]
127. Neither the exercise physiologist nor the pelvic pain physiotherapist attribute the need for exercise physiology to ZJSG’s mobility impairments or functional neurological disorder, only her chronic pain.
128. The Respondent contends that there is insufficient clinical evidence to demonstrate how exercise physiology, and in particular Tai Chi, is effective support for either psychosocial or physical impairments. The Respondent notes that the Tribunal has previously observed there is a “dearth of available evidence on what constitutes current good practice in this apparently arcane corner of science”.^[126] The Respondent contends that Tai Chi does not satisfy 34(1)(d) of the Act, that the support will be, or is likely to be, effective and beneficial for the participant having regard to current good practice. There has been no evidence presented to the Tribunal which shows the effectiveness of this therapy, and no functional assessments to show that it has been effective in ZJSG’s case. The Tribunal agrees with the Respondent’s position. The Tribunal also notes that ZJSG’s NDIS plans have never included exercise physiology, and if she has accessed it, it has been by her own choice.
129. The Respondent notes that in McLaughlin, the Tribunal accepted that the cost of consultation with an exercise physiologist for the purpose of preparing the Applicant for participating in Tai Chi classes was a reasonable and necessary support pursuant to s 33. This was because the Applicant required modified Tai Chi exercises as a consequence of her physical disability. However, the Tribunal found that the ongoing costs associated with Tai Chi classes were a day-to-day living cost and as such fell within scope of Rule 5.1(d).
130. In this matter, there is no evidence that the Applicant requires modified Tai Chi exercises, and the Respondent contends that the Tribunal cannot be satisfied that the cost of a consultation with an exercise physiologist for the purpose of preparing the Applicant for participating in Tai Chi classes is a reasonable and necessary support pursuant to s 34.^[127]
131. The Respondent states that it is unaware of any recommendations from mental health practitioners in relation to using exercise physiology to manage psychosocial impairments.^[128] There was certainly no evidence to this effect put before the Tribunal in this matter. The Respondent contended that neither Mr Cremen nor Ms Grassi are qualified to comment on exercise physiology in relation to ZJSG’s psychosocial impairments.
132. To the extent that exercise physiology may be used to support ZJSG’s chronic pain, the Respondent submits that there is insufficient evidence that ZJSG’s chronic pain would meet the access requirements in s 24. The Tribunal has already determined that ZJSG’s chronic pain would not meet the disability requirements in s 24 of the NDIS Act (at paragraph 43), as on the present evidence it could not currently be found to be a permanent condition. This is not the test of whether or not ZJSG can receive reasonable and necessary supports in respect of it. The Tribunal has already explained its conclusion that this is not a necessary precondition for a reasonable and necessary support to be provided, as long as a participant in the NDIS has a disability which continues to qualify them for access to the scheme. ZJSG does have such a disability in the form of her psychosocial impairments. It then falls to an examination of the requested support against the requirements of s34 of the NDIS Act and the Support Rules to determine if the support can be provided.
133. Ms Manlapid attributes ZJSG’s mobility impairments in part to her chronic pain. The Respondent contends that there is insufficient evidence that ZJSG lives with a disability that is attributable to chronic pain. This seems to be in the context of its own definition of disability as a disability which meets the access criteria in s 24 of the NDIS Act.^[129] The Tribunal is of the view that there is ample evidence that ZJSG is presently living with a disability which is attributable to chronic pain. This may not be a permanent disability.
134. In this case, the Tribunal is satisfied that exercise physiology will assist ZJSG to pursue her goals, objectives and aspirations to have greater independence and safely access the community. It is also likely to facilitate her social and economic participation as it may improve her health. The Tribunal cannot find that the support represents value for money. The benefits ZJSG receives from this support have not been quantified and no alternative supports have been considered. It may be that ZJSG could receive the same benefits from a home-based exercise program, gym membership or Tai Chi class. She has already had considerable exercise physiology and appears to be doing the recommended exercises at home as well. It is not clear why ZJSG cannot receive similar benefits from lower cost alternatives.
135. The Tribunal has also been presented with no evidence in relation to current good practice in relation to the management of ZJSG’s chronic pain by exercise physiology. It appears that she does have access to a multidisciplinary pain management program, which is likely to be able to provide her with similar, or comparable, supports through the health system.
136. The Tribunal therefore could not be satisfied that 84 sessions of exercise physiology satisfy the requirements of s 34(1)(c) and s 34(1)(f) of the NDIS Act. If there is evidence provided that ZJSG requires a modified program, rather than simply the type of pacing program which is part of multi-disciplinary pain management or a generalised personal training program, a consultation with an exercise physiologist may be appropriate.
137. The Respondent’s offer of 60 hours per annum that ZJSG can expend on any combination of occupational therapy, physiotherapy and podiatry presents the Tribunal with something of a conundrum. The Respondent’s stated position was that a person can only receive reasonable and necessary supports in respect of an impairment for which they either meet the access requirements or would meet the access requirements. ZJSG has met the access requirements in relation to her psychosocial impairment but not in relation to any physical impairments. The Respondent argues that her two physical impairments, chronic pain and functional neurological disorder, are not permanent and therefore ZJSG cannot receive supports in respect of them. Nonetheless, it simultaneously maintains the position that it is reasonable and necessary to provide her with 60 hours per annum of physical therapies. Why, if she has no physical impairments that meet the access criteria?
138. ZJSG’s current plan also includes funding for continence consumables and assistive technology, neither of which are related to the impairments for which she was granted access to the Scheme or any other impairments that the Respondent has submitted that it recognises. In this particular matter, the Respondent appears to hold the view that ZJSG is unable to receive supports which do not directly relate to her psychosocial impairments while already providing such supports. This institutional cognitive dissonance demonstrates that the position adopted by the Respondent in its submissions does not accord with the Agency’s operation in practice. ZJSG is already receiving supports which are unrelated to her psychosocial impairments. It is unsurprising that ZJSG is therefore confused about what types of supports she can access.
139. The Tribunal considered the positions of the parties carefully. As the Tribunal has concluded that ZJSG is able to receive supports in respect of any disability with which she presently suffers, which includes chronic pain and functional neurological disorder, as long as she has at least one impairment which would meet the access criteria, the Tribunal was satisfied that ZJSG is able to receive occupational therapy, physiotherapy and podiatry as recommended. It accepts the professional recommendation of Ms Manlapid that ZJSG receive 25 hours of occupational therapy per annum. There are no clear recommendations in relation to the number of hours of podiatry or physiotherapy that ZJSG should receive. The Tribunal notes that ZJSG is already accessing physiotherapy for pelvic pain through the public hospital system.
140. On the evidence before it, the Tribunal is satisfied that occupational therapy, physiotherapy and podiatry will all assist ZJSG to meet her goals and increase her social and economic participation. All these types of therapy have a solid evidence base, and Ms Manlapid has independently verified that ZJSG requires them. Ms Evans has also verified ZJSG’s need. Each therapy can produce specific and measurable results within a reasonable timeframe and ZJSG’s engagement in such therapies represents better value for money than any of the presented alternatives. They are likely to be effective and beneficial for ZJSG and to coordinate with the other therapy that she is able to access through the health system. The Tribunal is satisfied that a combination of occupational therapy, physiotherapy and podiatry satisfy all the criteria set out in s 34 of the NDIS Act.
141. In the absence of more detailed evidence to the contrary, the Tribunal is satisfied that it is reasonable and necessary for ZJSG to receive monthly physiotherapy and podiatry, with some additional allowance for more intense management during periods of more severe functional impairment. Allowing for 25 hours of occupational therapy and additional report writing to verify ZJSG’s progress in all areas, the Tribunal is satisfied that the Respondent’s proposal that ZJSG receives 60 therapy hours per annum which she can use flexibly for a combination of occupational therapy, physiotherapy and podiatry is reasonable and necessary.

Consumables, medication and furniture

142. ZJSG has requested various consumables and low-cost items. These include electric toothbrushes, gabapentin, Band-Aids, a wetsuit, UV swimsuit, towel, sunscreen, sunglasses, a beach trolley, modified tools for gardening, a raised toilet seat, a shower chair, orthotics, eyeglasses, and an air purifier to prevent bird fanciers’ disease.^[130]
143. The Tribunal can see that these requested items generally fall into three different groupings: assistive technology and continence supplies; medication; and day-to-day items. Each category of items is treated differently by the NDIS. The Support Rules go into this in more detail. Support Rules 5.1(d) states that the NDIS will not fund day-to-day items. The Respondent has argued, and the Tribunal agrees, that the bulk of the items requested by ZJSG, including her beach requirements and a new bed and furniture fall into this category. While ZJSG’s general practitioner has apparently supported the NDIS paying for ZJSG’s beach related items, he clearly does not have any detailed knowledge of what the NDIS can actually fund. ZJSG may have medical support for the NDIS to fund this, but this does not mean that it is possible.
144. In relation to her request for the NDIS to fund the cost of PBS and non-PBS medication, the Tribunal notes that Support Rule 7.5 specifically says that the NDIS will not be responsible for the clinical treatment of health conditions, including ongoing or chronic health conditions. Medication is clinical treatment of ZJSG’s ongoing or chronic health conditions and is specifically precluded from being funded. Medications are also more appropriately funded elsewhere and so do not meet the requirements of s 34(1)(f). ZJSG’s medication cannot be funded by the NDIS.
145. In relation to assistive technology, The Respondent advised that ZJSG’s Third SOPS of 11 November 2021 included the following:

a) $4416.00 per annum in Capital Support for assistive technology rentals (with a quote provided);

b) $800 per annum in Capital Support funding for bathing and toileting assistive technology repairs and maintenance (no quote required);

c) $500 per annum in Capital Support funding for orthotics related assistive technology repairs and maintenance (no quote provided); and

d) $1000 per year in Capital Supports for low-cost assistive technology.^[131]

146. The Respondent contends that this represents sufficient funding to meet ZJSG’s assistive technology requirements. On reviewing ZJSG’s list of requested supports, the Tribunal agrees.
147. The Respondent has also indicated that it is open to providing seven hours of funding for a continence nurse assessment for ZJSG. The evidence before the Tribunal is that ZJSG has considerable issues with continence both of bladder and bowel. She has referred to being on a “liquid” diet on the advice of a dietician at a dental hospital and having trialed a number of different continence products.^[132] Her continence affects her functional capacity when she is out in the community.^[133] There is no evidence before the Tribunal that ZJSG has recently had a formal continence assessment, but given the issues being experienced by ZJSG the Tribunal agrees that the provision of a continence assessment would meet the criteria for a reasonable and necessary support set out in s 34 of the NDIS Act. Continence consumables are already funded under the plan and the Fourth SOPS specifically made an additional allowance in this respect.
148. ZJSG appears to be under the misapprehension that if the health system or some other system cannot provide her with all the things that she wants then the NDIS must fill the gap. That is not the case. It is expressly not the role of the NDIS to fill gaps in other types of service provision.^[134] It is also not the role of the NDIS to provide or fund items which are only tangentially related to her disability, at best.

Support Work

149. ZJSG has requested 24 hours per week of assistance with personal and social activities; 9 hours per week of cleaning assistance; and 7 hours per week of personal assistance. This is 40 hours per week.
150. The Respondent advises that ZJSG is currently funded to receive:

a) $21,844.16 per annum in Daily Activity Funding which include three hours per week for self-care weekday time; three hours per week for assistance with completing domestic activities; two hours per week for household cleaning; two hours per week for yard and maintenance cleaning;

b) $11,537.76 per annum in Social Community and Civic Participation which includes four hours per week for assistance with accessing the community; and

c) $1,784 per annum for transport funding.^[135]

151. The Respondent has indicated that an additional 11 hours per week of support worker assistance for social and community participation (a total of 15 hours); an additional 4 hours per week in relation to personal care (a total of 7 hours); and an additional 2.5 hours per week for cleaning (a total of 4.5 hours) is reasonable and necessary. This is 31.5 hours per week when the current supports for outside maintenance and completing domestic activities is included. They incorrectly calculated its original position to have been 28.5 hours per week and added an extra 1.5 hours per week to bring it to the minimum proposed by Ms Manlapid.^[136] In fact, their original position was 30 hours per week.^[137]
152. Ms Manlapid has recommended that ZJSG receive up to 10 hours of support work per week to assist with personal care and completing domestic activities when she is unwell. She has not clearly specified how much support ZJSG should receive with these activities when she is not unwell. She also suggests that she has domestic cleaning assistance of up to 8 hours per week; weekly shopping assistance of up to 4 hours; outdoor lawn maintenance; and social and community participation supports at least 2 to 3 times per week for 4 to 5 hours. This equates to support hours of between 30 and 37 hours per week if ZJSG was always to receive 10 hours per week for personal care and general household activities.
153. Ms Evans recommended that ZJSG receive:

     Funding for increased support worker assistance including funding for at least 8 hours cleaning/domestic support and a further 4 hours per week to assist [ZJSG] with community engagement and shopping participation.^[138]

154. The Tribunal notes that there is no independent evidence which would indicate that ZJSG requires 40 hours per week of support work. The Tribunal further notes that the recommendation that ZJSG receive 8 hours per week of cleaning assistance by Ms Manlapid includes the considerable extra cleaning which is generated by the parrot.^[139] As the needs of the animal have been found not to be appropriately funded by the NDIS, the costs of cleaning the animal’s cage and droppings cannot be funded except in so far as they would be part of normal household cleaning.
155. In Ms Evan’s opinion, a total of 8 hours per week could be provided for cleaning and domestic support. Domestic support is included by Ms Manlapid in her recommendation that ZJSG receive 10 hours per week to assist with personal care and general household activities when she is unwell. The Respondent agrees with, and the Tribunal accepts, that ZJSG should receive 15 hours per week of funding for Social, Civic and Community Participation. This would allow ZJSG to be supported in her community activities for five hours per day on three days of the week and is consistent with the recommendation of Ms Manlapid. ZJSG currently has difficulty with accessing the community due to her psychosocial disability and continence issues. She needs to be supported to do so as frequently and consistently as she is able to manage. The Tribunal is satisfied that 15 hours per week of funding for Social, Civic and Community Participation would assist ZJSG to meet her goals and improve her economic and social participation. It is likely to be effective and beneficial and given her limited access to informal networks, will need to be funded by the NDIS. It is very important for ZJSG to be able to access the community and so it is value for money to provide her with the ability to do this in a safe and supportive manner. The Tribunal finds that the provision of funding for 15 hours per week of Social, Civic and Community Participation is a reasonable and necessary support which meets the criteria set out in s 34 of the NDIS Act.
156. Further, the Respondent accepts that ZJSG requires seven hours per week of assistance with personal care. This equates to 1 hour per day and the Tribunal is satisfied that this is reasonable given ZJSG’s continence issues and her limited levels of informal support. This is consistent with the recommendation of Ms Manlapid when domestic support is no longer included under this category. The Tribunal is satisfied that 7 hours per week of funding for personal care across seven days per week would assist ZJSG to meet her goals and improve her economic and social participation. It is likely to be effective and beneficial and given her limited access to informal networks will need to be funded by the NDIS. While her father can do this for her if she requires, he is frequently not available. It is the responsibility of the NDIS, and it is value for money to provide her with the ability to do this safely and with dignity. The Tribunal finds that the provision of funding for 7 hours per week for personal care is a reasonable and necessary support which meets the criteria set out in s 34 of the NDIS Act.
157. Ms Evans recommends 8 hours per week for cleaning and domestic support. ZJSG currently receives 3 hours per week for assistance with completing domestic activities and the Respondent has proposed an additional 4.5 hours for internal cleaning. ZJSG has provided a breakdown of the cleaning activities currently completed by her father.^[140] This is very much an estimate and while the Tribunal accepts that ZJSG would like 9 hours per week for cleaning, the Tribunal cannot find that this is reasonable in the context of the available occupational therapy evidence. The Tribunal is satisfied that 5 hours per week of funding for cleaning would assist ZJSG to meet her goals. Ms Manlapid indicates that ZJSG’s falls risk is affected by her current cluttered environment. She has a limited capacity to clean it herself. Cleaning, tidying and organising this environment is likely to be effective and beneficial for ZJSG. There is no other service or system which can provide this to ZJSG and her father’s capacity to assist is decreasing, although he is likely to be able to provide ZJSG with some assistance in this area. The Tribunal finds that the provision of funding for 5 hours per week for cleaning is a reasonable and necessary support which meets the criteria set out in s 34 of the NDIS Act.
158. ZJSG already receives 2 hours per week in support for outdoor maintenance in addition to indoor cleaning requirements. With the 3 hours per week of assistance to complete domestic activities already provided, this will give her a total of 32 hours per week of support work assistance. This is within the range proposed by Ms Manlapid and consistent with her needs.

Notional duration of the plan

159. The Tribunal notes that the parties did not make submissions about the length of ZJSG’s plan. The current plan has a duration of 15 months from 18 January 2023 to 18 April 2024. Given the need for ZJSG to engage in multiple therapies and reports of her progress to be provided and considered, the Tribunal was of the view that this plan should be of a longer duration. There has been a significant increase in the supports provided to ZJSG as a result of this decision and their effectiveness in her particular circumstances needs to be considered carefully at the time of plan review. ZJSG also needs certainty about the funding that is to be provided to her as she experiences considerable distress around the review of her NDIS plan. Consequently, the Tribunal was satisfied that the duration of this plan under s 33(2) of the NDIS Act should be 18 months. The parties may decide that future plans should be of a longer duration.

Plan Management

160. There were also no proposals made to change the management of ZJSG’s plan, which is presently plan managed with the exception of ZJSG’s budget for support coordination which is Agency managed. The Tribunal was content with this management regime and could see no reason to change it under ss 33(2) of the NDIS Act.

CONCLUSION

161. The Tribunal concludes that each of the mandatory criteria in s 34 (1) of the NDIS Act are met and that the following supports are “reasonable and necessary supports” and should be included in ZJSG’s SOPS over a period of 18 months:

(h) 16 hours per annum of psychology assistance in the form of 12 psychology sessions, two hours for report writing and two hours for review by a mental health occupational therapist;

(i) 75 hours per annum for ZJSG to use in her preferred combination of psychosocial recovery coaching and support coordination;

(j) 60 hours per annum for ZJSG to use in her preferred combination of occupational therapy, physiotherapy and podiatry;

(k) 7 hours for an assessment by a continence nurse;

(l) 15 hours per week at the weekday daytime rate of support work assistance for Social, Civic and Community Participation;

(m) 7 hours per week (which can be across seven days per week) of support work assistance for personal care; and

(n) 5 hours per week at the weekday daytime rate for cleaning.

162. The reasonable and necessary supports for completion of domestic activities for 3 hours per week and outdoor maintenance for 2 hours per week remain unchanged.
163. Accordingly, the Tribunal sets aside the Decision Under Review and remits the matter for reconsideration with a direction that on or before 28 September 2023, the NDIA facilitate the approval of a new SOPS for ZJSG containing the reasonable and necessary supports referred to above in paragraph [161].

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

Dated: 31 August 2023

^[1] The Tribunal made confidentiality orders under s 35 of the AAT Act on 8 June 2023.

^[2] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.
^[3] National Disability Insurance Scheme v WRMF [2020] FCAFC 79, [138]–[139].

^[4] Joint Tender Bundle 11, 302.

^[5] Refer T-Documents 129.

^[6] Refer T-Documents 142.

^[7] Refer T-Documents 157.

^[8] NDIS Plan dated 18 January 2023, filed on 3 July 2023.

^[9] [2021] FCAFC 189.

^[10] Ibid, [8] (Rangiah, Perry and Abraham JJ).

^[11] Frugtniet v Australia Securities and Investment Commission [2019] HCA 16, [14] ( Kiefel CJ, Keane and Nettle JJ).

^[12] Joint Tender Bundle, 2-3.

^[13] Joint Tender Bundle 788; Letter of Dr J Kiang with handwritten addendum, 13 December 2022, lodged on 14 December 2022.

^[14] Joint Tender Bundle, 136.

^[15] Ibid, 84.

^[16] Ibid, 788.

^[17] Ibid.

^[18] Ibid.

^[19] Ibid.

^[20] Ibid.

^[21] SOFIC, 14 April 2023.

^[22] SOFIC, 14 April 2023.

^[23] Joint Tender Bundle, 588.

^[24] Ibid, 470.

^[25] Ibid, 161-183.

^[26] Ibid, 386.

^[27] Respondent SOFIC, 14 April 2023.

^[28] Joint Tender Bundle, 130.

^[29] Ibid, 162-183.

^[30] Ibid, 244, 262–268; 318–364.

^[31] Ibid, 398–416.

^[32] Ibid, 386, 442, letter of Dr J Maamary, 30 January 2023.

^[33] Joint Tender Bundle 1493-1495, clinical notes Dr J Chow, 14 December 2022.

^[34] Support Functional Neurological Disorder |FNDaus.org.au

^[35] Joint Tender Bundle, 187-188, Occupational Therapy Functional Assessment, Ms M Manlapid.

^[36] Letters, Dr J Maamary, 30 January 2023, Joint Tender Bundle, 127.

^[37]  [2020] AATA 5107 , [38].

^[38] [2021] AATA 496.

^[39] Ibid, [61].

^[40] Ibid, [44].

^[41] ibid, [46]–[47].

^[42] ibid, [53].

^[43] ibid, [61].

^[44] Ibid, [34].

^[45] [2023] AATA 481.

^[46] Ibid, [145]–[146].

^[47] Ibid, [139]–[140], [143]–[146], [152].

^[48] Ibid, [81]–[105].

^[49] Ibid, [103]–[105].

^[50] Ibid, [115]–[116].

^[51] [2020] FCAFCA 79.

^[52] HZRI, [137].

^[53] Ibid, [152], [154].

^[54] Ibid, [165]–[170].

^[55] Respondent’s Further Submissions, dated 7 July 2023.

^[56] Ibid, [14]–[15].

^[57] https://ourguidelines.ndis.gov.au/how-ndis-supports-work-menu/what-principles-do-we-follow-create-your-plan/what-principles-do-we-use-create-your-plan/fair-supports-your-disability-needs .

^[58] Respondent’s further submissions [19].

^[59] Ibid, [25].

^[60] Ibid, [27].

^[61] Ibid, [29].

^[62] Ibid, [31].

^[63] HRZI, [139].

^[64] Respondent’s Further Submissions, 7 July 2023, [33].

^[65] Ibid, [35].

^[66] Mulligan, [52].

^[67] Ibid, [55].

^[68] Mulligan, [34].

^[69] Ibid, [34].

^[70] ZNDV and National Disability Insurance Agency [2014] AATA 921 [18], [80].

^[71] BIJD and National Disability Insurance Agency [2018] AATA 2971, [49].

^[72] HPSC and National Disability Insurance Agency [2021] AATA 727, [85].

^[73] Joint Tender Bundle, 2-3.

^[74] Joint Tender Bundle, 76-80.

^[75] Joint Tender Bundle, 30–39.

^[76] Joint Tender Bundle, 1.

^[77] Ibid.

^[78] Joint Tender Bundle, 6-29; 42–72.

^[79] Joint Tender Bundle, 17.

^[80] Ibid, 30.

^[81] Ibid, 35.

^[82] Ibid, 38.

^[83] Joint Tender Bundle, 40–41; 75–80.

^[84] Ibid, 75.

^[85] Ibid.

^[86] Respondent’s SOFIC, 14 April 2023.

^[87] Final Report to National Disability Insurance Agency: Key terms for animals in disability assistance roles, Dr Tiffani Howell, La Trobe University, 7 August 2019.

^[88] Ibid; Respondent's SOFIC, 10 February 2023.

^[89] Respondent's SOFIC, 10 February 2023, [34].

[90] Final Report to National Disability Insurance Agency: Key terms for animals in disability assistance roles, Dr Tiffani Howell, La Trobe University, 7 August 2019, 8.

^[91] Assistance Animal guideline, 3.

^[92] Respondent’s SOFIC, 10 February 2023, [38].

^[93] https://www.ndis.gov.au/participants/assistive-technology-explained/assistance-animals

^[94]Respondent’s SOFIC, 10 February 2023, [42]; Final Report to National Disability Insurance Agency: Reviewing Assistance Animal Effectiveness, A/Prof Pauleen Bennett, La Trobe University, 30 September 2016 at 8.

^[95] Respondent’s SOFIC, 10 February 2023, [45].

^[96] Respondent’s SOFIC, 10 February 2023, [46].

^[97] Ibid, [49].

^[98] Ibid, [50].

^[99] Ibid, [52].

^[100]https://www.olg.nsw.gov.au/public/dogs-cats/responsible-pet-ownership/assistance-animals/#:~:text=Like%20all%20other%20companion%20animals,please%20notify%20your%20local%20council.

^[101] Joint Tender Bundle, 177.

^[102] Joint Tender Bundle, 354–356.

^[103] Ibid, 374-379.

^[104] Ibid, 158-184; 792-1723.

^[105] Ibid, 188.

^[106] Letter of Dr J Kiang with handwritten addendum, dated 13 December 2022, lodged on 14 December 2022.

^[107] T Docs at T1G.

^[108] Letter of Dr J Kiang with handwritten addendum, dated 13 December 2022, lodged on 14 December 2022.

^[109] Respondent’s SOFIC, 10 February 2023,[16].

^[110] Respondent’s SOFIC, 10 February 2023,[56].

^[111] Joint Tender Bundle, 199.

^[112] Joint Tender Bundle, 136.

^[113] Ibid.

^[114] Respondent’s SOFIC, 10 February 2023 [85]

^[115] Joint Tender Bundle, 190-192.

^[116] Ibid.

^[117] Ibid.

^[118] Ibid, 188.

^[119] Joint Tender Bundle, 199.

^[120] Ibid, 136.

^[121] Ibid, 198-199.

^[122] T Docs at T1J.

^[123] Joint Tender Bundle, 198.

^[124] Ibid, 126.

^[125] Ibid, 119.

^[126] McLaughlin, [149].

^[127] Respondent SOFIC, 10 February 2023, [105].

^[128] Ibid, [109].

^[129] Respondent’s SOFIC, 10 February 2023, [118].

^[130] T Docs, T1P.

^[131] Respondent’s SOFIC, 10 February 2023, [93].

^[132] Joint Tender Bundle, 175.

^[133] Ibid.

^[134] Young and National Disability Insurance Agency [2014] AATA 401, [32].

^[135] Respondent’s SOFIC, 10 February 2023, [65].

^[136] Respondent’s SOFIC, 14 April 2023,[17].

^[137] Respondent's SOFIC, 10 February 2023, [83].

^[138] T Docs,T1J.

^[139] Joint Tender Bundle, 197.

^[140] T Docs,T1Q.