VGCP and National Disability Insurance Agency [2020] AATA 5107 (11 December 2020)

Last Updated: 23 December 2020

VGCP and National Disability Insurance Agency [2020] AATA 5107 (11 December 2020)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2020/3641
NATIONAL DISABILITY INSURANCE )
SCHEME DIVISION )

Re: VGCP
Applicant

And: National Disability Insurance Agency
Respondent

TRIBUNAL: Deputy President S A Forgie

DATE: 22 December 2020

PLACE: Melbourne

CORRIGENDUM TO DECISION

The Tribunal amends its decision of 11 December 2020 as follows:

1. Reference to GENERAL DIVISION is substituted with NATIONAL DISABILITY INSURANCE SCHEME DIVISION.

[sgd]

S A FORGIE

Deputy President

Division: GENERAL DIVISION

File Number: 2020/3641

Re: VGCP

APPLICANT

And National Disability Insurance Agency

RESPONDENT

DECISION

Tribunal: Deputy President S A Forgie

Date of decision: 11 December 2020

Place: Melbourne

The Tribunal decides that:

(1) for the purpose of specifying a statement or participant supports, s 34 of the National Disability Insurance Agency Act 2013, reasonable and necessary supports are determined by reference to any impairment or impairments in relation to which a participant meets the disability requirements under s 24 or the early intervention requirements under s 25; and

(2) the questions posed to three named Allied Health Professionals are directed to relevant issues and do not extend beyond the scope of their professional expertise.

[sgd]
Deputy President S A Forgie

Catchwords

NATIONAL DISABILTIY INSURANCE SCHEME – objection to questions asked of Allied Health Professionals –relevance to assessment of reasonable and necessary supports – what are reasonable and necessary supports determined by reference to a participant’s impairments that meet the disability requirements under s 24 or the early intervention requirements under s 25.

Legislation

Administrative Appeals Tribunal Act 1975 ss 33 and 37

National Disability Insurance Scheme Act 2013; ss 3, 8, 9, 13, 21, 24, 25, 28, 29, 30, 32, 33, 34, 35, 106, 107, 109, 111 and 209

National Disability Insurance Scheme (Becoming a Participant) Rules 2016; Part 5

National Disability Insurance Scheme (Supports for Participants) Rules 2013

Cases
Hanlon v Law Society [1981] AC 124

Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 77 ALR 8

Mulligan v National Disability Insurance Agency [2015] FCA 544

PIPE Networks Pty Ltd v Commonwealth Superannuation Corporation [2013] FCA 444; (2013) 212 FCR 542

Secretary, Department of Health, Housing, Local Government and Community Services v Kaderbhai [1994] FCA 1197; (1994) 122 ALR 577

Webster v McIntosh [1980] FCA 128; (1980) 32 ALR 603

Secondary Materials

Convention on the Rights of Persons with Disabilities

Statutory Interpretation in Australia by DC Pearce and RS Geddes (Butterworths, 8^th edition, 2019

REASONS FOR DECISION

Deputy President S A Forgie

1. Since 24 March 2020, VGCP has been a participant of the National Disability Insurance Scheme (NDIS) established under the National Disability Insurance Act 2013 (NDIS Act). She has been diagnosed with Chronic Fatigue Syndrome (CFS) and moderate hearing loss. The Chief Executive Officer (CEO) of the National Disability Insurance Agency (Agency) approved a participant’s plan for VGCP on 27 April 2020. VGCP applied to the Agency for internal review of the statement of participant supports in that plan as it approved only some of the supports she had requested. In reviewing its decision, the Agency decided on 18 May 2020 to approve further supports but not all of the supports that VGCP had requested. On 16 June 2020, VGCP applied for review of the Agency’s decision.

2. During the course of the conference, or alternative dispute resolution, procedures in the Tribunal, VGCP lodged a Physiotherapist’s report dated 13 July 2020, an Occupational Therapist’s report dated 4 August 2020, a Podiatrist’s report dated 9 July 2020 and a further document by VGCP’s General Practitioner. The Agency wanted to ask three of VGCP’s allied health providers (AHPs) additional questions. It prepared letters dated 9 September 2020 to VGCP’s Physiotherapist, Podiatrist and Occupational Therapist but it would seem that they were not sent. On VGCP’s behalf, her solicitor, Ms Anderson, put some, but not all, of the Agency’s questions in those letters to each of the AHPs. She put one of two questions posed to VGCP’s Podiatrist, seven of 17 posed to her Occupational Therapist and six of 13 posed to her Physiotherapist. Each of them replied to Ms Anderson and she submitted their answers to the Agency and lodged them in the Tribunal. She also lodged VGCP’s fortnightly schedule.

3. On 20 October 2020, the Agency asked the Tribunal to make a direction requiring VGCP’s to provide further information. Using her powers under s 33 of the Administrative Appeals Tribunal Act 1975 (AAT Act), an Assistant Case Assessment Registrar directed:

“1. That the parties confer and agree on list of practitioners to provide answers to outstanding questions posed by the Respondent in the letters dated 9 September 2020.

2. On or by 30 October 2020, the Respondent must advise the Tribunal of the agreed list of practitioners, and when any additional reports responding to those questions are likely to become available.”

4. There has been no agreement between the parties either as to the practitioners to whom further questions are to be posed or the questions that are to be posed. Ms Anderson has made submissions directed to resisting those questions. The Agency has taken the position that VGCP is not compelled to answer the questions and may choose to present her case how she wishes. I agree with the Agency that VGCP must be allowed to present her case to the Tribunal in the way she chooses. At the same time, Ms Anderson has set out detailed submissions, which she presses, and they should be considered.

5. I have concluded that the questions are relevant to the issues that arise in considering whether supports are reasonable and necessary supports within the meaning of s 34 of the NDIS Act. Section 34 requires that issue to be determined with regard to any impairment or impairments in relation to which a participant meets the disability requirements under s 24 or the early intervention requirements under s 25. Furthermore, the Agency has not asked the AHPs questions beyond the scope of their expertise.

BACKGROUND

6. VGCP completed an Access Request Form on 10 March 2020. She recorded her primary disability as Myalgic Encephalomyelitis/Chronic Fatigue Syndrome (ME/CFS) and her other disabilities as Postural Orthostatic Tachycardia Syndrome (POTS), Fibromyalgia and moderate hearing loss. VGCP provided copies of reports, letters and assessments from various health professionals and allied health professionals.

7. On 24 March 2020, the Agency wrote to VGCP advising her that her request to access the NDIS had been successful. The letter was unsigned and advised: “I have decided that you meet the age, residence and disability requirements outlined in the National Disability Insurance Scheme Act 2013 to become a participant from 24 March 2020.” The letter went on to advise VGCP that a member of the NDIS team would contact her to take her through the next steps. Developing what was described as her “First Plan” and arranging funding and supports were included in those steps. Attached to the letter was a brochure entitled “Getting ready for planning”. The brochure explained:

“Your first plan will identify the reasonable and necessary supports you require to meet your immediate needs and start to identify and achieve your goals.

Once completed – you first plan will provide you individualised funding that you control and choose how to use.

To get ready for the NDIS and your first plan, start thinking about your immediate support needs and what your current and future goals might be.”

8. VGCP’s participant’s plan is dated 27 April 2020 and is due for review on 27 April 2021. As required by the NDIS Act, it includes both VGCP’s statement of goals and aspirations and a statement of participant supports approved by the CEO. Her statement of goals and aspirations reads:

“My goals This is what I want to achieve Short-term goal To have a functional assessment of my disability needs and to explore assistive technology that will support my daily life and independence.
How I will achieve this goal	How I will be supported
I will follow the advice from the outcomes in the functional capacity assessment. I will learn how to use assistive technology that will allow me to complete my activities of daily living as safely and efficiently as possible. I will be able to navigate around my home safely and as independently as possible. I will learn strategies and exercises to improve my motor skills.	∙ An Occupational Therapist will conduct a functional capacity assessment and support me to obtain assistive technology. ∙ A Physio will be able to assist me to improve my mobility and move safely around my home and community. ∙ Assistive technology related to my hearing will be provided to assist me with my daily life and independence.
Short-term goal To decrease my reliance on my informal supports and increase my independence.
How I will achieve this goal	How I will be supported
I will modify areas of my home to be able to carry out daily activities safely. I will be able to navigate around my home safely and as independently as possible.	∙ I will receive assistance from support workers to help me maintain my self-care, home environment and access the community without having to rely on my informal supports. ∙ I will have a support person to complete domestic tasks/yard maintenance tasks that I am unable to complete myself due to factors related to my disability. ∙ Assistive technology will support me to achieve this goal. ∙ I will receive a transport allowance, which will allow me to access the community as independently as possible.
Medium or long-term goal To develop coping strategies related to my disability and deteriorating chronic illness.
How I will achieve this goal	How I will be supported
I will follow the strategies given to me by my Psychologist. I will practice (sic) these strategies in safe, supported environments.	∙ My psychologist will develop a program that will be most beneficial to me learning these skills. ∙ My informal supports will support me to practice (sic) these strategies.
Medium or long-term goal To improve communication with family and friends.
How I will achieve this goal	How I will be supported
I will follow the recommendations made by my Audiologist and Occupational Therapist. I will understand what assistive technology equipment I need to achieve this goal.	∙ My audiologist will recommend appropriate hearing aids.”

9. The statement of participant supports followed with a statement of the link between the particular support being provided for and VGCP’s goal. I will set out only the information relating to Core Supports:

“Core Supports Core supports help with my everyday activities, my current disability related needs and to work towards my goals. The Core Supports budget is the most flexible, and in most cases, funding can be used across the support categories (however, this may not include transport). Goal/s my Core Support funding can help me achieve:  To have a functional assessment of my disability needs and to explore assistive technology that will support my daily life and independence.  To decrease my reliance on my informal supports and increase my independence.  To develop coping strategies related to my disability and deteriorating chronic illness.  To improve communication with family and friends.
Core Supports	Budget
I can use my core support funding flexibility to help with my daily activities, my current disability related needs and to work towards my goals. Consumables * Funding for assistive technology allocated for the purchase of basic (Level 1) and standard (Level 2) assistive technology to support me to achieve my goals and outcomes (Hearing related equipment only.) Daily activities * STATED SUPPORT: Establishment fee to cover providers establishing arrangements for your personal care/community access. Provider can claim a part of this in line with the price guide. Social and community participation: * Individual assistance to support you to attend and participate in community, social and recreational activities of your choice at the Standard Intensity Level. These supports can be used flexibly to support your routines and support needs. ...	...
Capacity Building Supports
Improved Daily Living (CB Daily Activity) Funding to support you to access a psychology assessment in a supported and confidential environment, this is a short-term support to obtain an assessment that will address barriers to you achieving your goals, as a result of your disability, and not sessions to address mental health. Funding for an allied health professional or therapist to assess and provide recommendations to the NDIS regarding skill building supports that may assist your achieve your goals. Recommendations will be considered against the reasonable and necessary considerations of the NDIS. Hearing services standard funding only. ...	...
Support Coordination Assistance to strengthen your ability to coordinate and implement supports, strengthen your informal network and coordinate a range of both funded and mainstream supports. ...	...”

10. Following internal review, a reviewer decided under s 100(6) of the NDIS Act to provide funding for:

(1) 24 hours of Support-Coordination as it is reasonable and necessary;

(2) 20 hours of Occupational therapy as it is reasonable and necessary;

(3) 6 hours of Hearing Services as it is reasonable and necessary; and

(4) a hearing aid as it is reasonable and necessary.

11. She decided not to fund the following supports on the basis that they were not related to VGCP’s disability:

(1) 4 hours per fortnight of domestic assistance;

(2) 4 hours per fortnight of yard assistance;

(3) 20 hours of physiotherapy;

(4) 5 hours of podiatry;

(5) a walking frame;

(6) a shower chair;

(7) a power bed;

(8) a bed/chair table;

(9) orthotics;

(10) a recliner;

(11) a wheelchair; and

(12) a mobility scooter.

12. The questions asked by the Agency, Ms Anderson submits, fall into three categories. The first comprises those questions that Ms Anderson submits have already been answered or the answers lie in the material that has already been lodged. The second comprises those that Ms Anderson submits are unrelated to the matter before the Tribunal. In the third category are those questions that Ms Anderson submits cannot be answered by the AHP concerned. In relation to the third category, Ms Anderson submitted that it is not the role of AHPs to diagnose or treat VGCP, critique the treatment decisions of a medical practitioner or critique or dispute the diagnoses of a medical practitioner.

LEGISLATIVE FRAMEWORK

The objects of the NDIS Act

13. The objects of the NDIS Act include providing “... reasonable and necessary supports ... for participants in the National Disability Insurance Scheme launch” and facilitating “... the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability”.^[1] The objects are to be achieved in three ways, one of which is by “establishing a national regulatory framework for persons and entities who provide supports and services to people with disability, including certain supports and services provided outside the National Disability Insurance Scheme.”^[2] In giving effect to the objects of the NDIS Act, regard is to be had to four matters. One of those matters is “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.”^[3]

Becoming a participant of the NDIS

14. A person becomes a participant in the NDIS when the Agency’s Chief Executive Officer (CEO) decides that he or she meets the access criteria.^[4] In order to meet the access criteria, the CEO must be satisfied of certain matters specified in ss 21 to 25. In VGCP’s case, the matters were that she met the age and residence requirements and that, at the time of considering the request, she met the disability requirements.^[5]

“(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 to one 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.”^[6]

15. Neither the word “disability” nor the word “impairment” is defined in the NDIS Act. Section 9 provides that the expression “participant’s impairment means an impairment in relation to which the participant meets the disability requirements, or the early intervention requirements, to any extent.”

16. Under s 209 of the NDIS Act, the Minister may, by legislative instrument, make rules called the National Disability Insurance Scheme rules. Those rules may prescribe matters required or permitted by that legislation to be prescribed by them or necessary or convenient to be prescribed in order to carry out or give effect to it.^[7] The Minister has made various rules under s 209. Among them are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Becoming a Participant Rules).

17. Part 5 of the Becoming a Participant Rules sets out when an impairment is permanent or likely to be permanent for the disability requirements. The following paragraphs are relevant:

“5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.

5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve.

5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).

5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.”

18. The Becoming a Participant Rules then provides when an impairment results in substantially reduced functional capacity to undertake relevant activities:

“5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities – communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c)) – if its result is that:

(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or

(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, or even with assistive technology, equipment, home modifications or assistance from another person.”

19. A person ceases to be a participant of the NDIS when: he or she dies; enters a residential care service on a permanent basis or, after turning 65 years of age, starts being provided with home care on a permanent basis; his or her status as a participant is revoked under s 30; or the person gives the CEO written notification that he or she no longer wishes to be a participant.^[8] The CEO may revoke a person’s status as a participant if satisfied that the person does not meet the residence requirements or that the person does not meet either the disability requirements or the early intervention requirements.

Preparation of a participant’s plan

20. If a person becomes a participant, the CEO must facilitate the preparation of a participant’s plan in accordance with the National Disability Insurance Scheme rules.^[9] Matters that must be included in a participant’s plan must include a statement prepared by the participant (participant’s statement of goals and aspirations) as well as a statement of participant supports.^[10]

A. Statement of participant supports

21. A statement of participant supports is prepared with the participant and approved by the CEO and 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 review the plan under Division 4; and

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

(e) the management of other aspects of the plan.”^[11]

22. In deciding whether to approve a statement of participant supports, the CEO must:

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

(b) have regard to the 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 purpose 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.”

23. A “general support”, to which reference may be made in a statement of participant supports, is either a service provided by the Agency to a person or an activity engaged in by the Agency in relation to the person that is in the nature of a coordination, strategic or referral service or activity, including locally provided coordination, strategic or referral service or activity.^[12]

24. The terms “reasonable and necessary supports” and “supports” are not defined in the NDIS Act. Section 34 is, however, relevant in determining which general supports and which reasonable and necessary supports will be provided or funded. Section 34(1) provides:

“... the CEO must be satisfied of all of the following in relation to the funding or provision of each 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 systems 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.”

25. The National Disability Insurance Scheme rules may make provision in connection with the funding or provision of reasonable and necessary supports including, but not limited to:

“(a) methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding, the reasonable and necessary supports or general supports that will be funded or provided under the National Disability Insurance Scheme; and

(b) reasonable and necessary supports or general supports that will not be funded or provided under the National Disability Insurance Scheme; and

(c) reasonable and necessary supports or general supports that will or will not be funded or provided under the National Disability Insurance Scheme for prescribed participants.”^[13]

The National Disability Insurance Scheme rules may relate to the manner in which, and by whom, supports are to be provided.^[14]

26. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (2013 Supports for Participants Rules) were made under s 209 for the purposes of ss 33 and 34 of the NDIS Act and with effect from 1 July 2013. Part 5 is concerned with general criteria for supports, and supports that will be funded or not provided:

“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.”

CONSIDERATION

Reasonable and necessary supports

27. The parties agree that the issue in this case is whether the supports requested by VGCP are reasonable and necessary and whether they relate to her disability. Ms Anderson submitted that the Agency seeks answers to questions that do not comply with the definition of the word “disability” either in the NDIS Act or in relevant case law. In her submission, once a person becomes a participant of NDIS, supports must be given for all and any of his or her impairments. The Agency takes the view that it must provide supports that are reasonable and necessary in relation to a person’s impairments that meet the requirements of s 24(1)(b), (c), (d) and (e) as modified by s 24(2).^[15] Its questions are directed to satisfying itself that VGCP’s impairments do so and that the requested supports are reasonable and necessary.

28. Ms Anderson referred in particular to a passage from the judgment of Mortimer J in Mulligan v National Disability Insurance Agency^[16] when she said:

“The term ‘disability’ is used in the Act ... as a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life. ...”^[17]

29. As Mortimer J observed, the word “disability” is not defined in the NDIS Act. In the absence of a definition, she turned to the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006.^[18] No definition of the word “disability” is to be found in that Convention but Article 1 sets out its purpose:

“The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”

30. The word “impairment” is not defined in the NDIS Act but Mortimer J understood that word is to be “... generally understood as involving the loss or damage to a physical, sensory or mental function.”^[19] She also observed that the access criteria that must be met in order to become a participant do not operate on the concept of disability but on the concept of impairment. Her observation was made with particular reference to the disability requirements in s 21(1)(c)(i) as set out in s 24 of the NDIS Act. As Mortimer J had observed earlier in her reasons for judgment:

“... The link between ‘disability’ and ‘impairment’ is not explained in the Act. The use of both the term ‘disability’ and the term ‘impairment’ in their context indicates that one matter the Act is not concerned with, at least in terms of access to the NDIS as a participant is how a person came to have a disability. Whether it be through birth, disease, injury or accident, all persons with disabilities may be otherwise assisted in the way contemplated by Ch 2 of the Act. Arrangements concerning the nature and extent of support where a person may be in receipt of funding from other sources (depending, for example, on how the person came to have a disability) are dealt with in Ch 5.”^[20]

31. Taken on its own, this passage may suggest that, once a person becomes a participant, the word “disability” incorporates all and any of that person’s impairments, whether permanent or not. I do not, however, think this is what her Honour intended. She goes on to observe later in her judgment that:

“... Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which, as the Tribunal correctly observed at [19] of its reasons, is generally understood as involving the loss of or damage to a physical, sensory or mental function.

Although an impairment may, in general terms (and, for example, in the terms of Art 1 of the Convention on the Rights of Persons with Disabilities extracted above) be responsible for or related to a disability, the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person, so as to justify the provision of the ‘reasonable and necessary supports’ to which participants may be entitled, after assessment in accordance with Pt 2 of Ch 3 of the Act.”^[21]

32. In summary, for the purposes of the disability requirements of s 24, what matters is that a person has “a disability” that is attributable to one or more impairments, that the impairment or impairments meet the requirements of ss 24(1)(b), (c) and (d) (having regard to s 24(2)) and that the person is likely to require support under the NDIS for the person’s lifetime. Having established a disability that is attributable to an impairment or impairments, these provisions are cast in terms of a permanency of the impairment(s), or in their likelihood of being permanent and in their resulting in a substantial reduction in functional capacity to undertake activities set out in s 24(1)(c) or in the effect they have on the person’s capacity for social or economic participation as set out in s 24(1)(d).

33. In setting out the matters that must be included in a participant’s plan, ss 32 and 33 do not expressly link a “support” with either a disability or an impairment. Section 9 provides that the expression “participant’s impairment means an impairment in relation to which the participant meets the disability requirements, or the early intervention requirements, to any extent.” The expression “participant’s impairment” does not appear in ss 32 and 33 but it does appear in ss 106, 107, 109 and 111. Sections 106 and 107 are concerned with recovering past NDIS amounts from certain judgments and consent judgments and settlements. An “NDIS amount” is defined in s 9 as “... an amount paid under the National Disability Insurance Scheme in respect of reasonable and necessary supports funded under a participant’s plan.” Section 109 permits the CEO to send a preliminary notice to a potential compensation payer or insurer advising that he or she may wish to recover an amount. Section 111 is concerned with recovery.

34. Section 106 is drafted in terms similar to s 107 and I will refer only to it. Only ss 106(1) and (2) are relevant in this case:

“(1) This section applies if:

(a) an amount of compensation is fixed under a judgement (other than a consent judgement) given in respect of a personal injury that has caused, to any extent, a participant’s impairment (whether or not the participant was a participant at the time of the injury); and

(b) before the day of judgement, NDIS amounts (the past NDIS amounts) had been paid in respect of supports in relation to the participant’s impairment; and

(c) the judgement specifies a portion (the past NDIS support component) of the amount of compensation to be a component for supports of a kind funded or provided under the National Disability Insurance Scheme.

(2) An amount (the recoverable amount) is payable by the participant to the Agency. The recoverable amount is an amount equal to:

(a) unless subsection (4) or (5) applies – sum of the past NDIS amounts, reduced as mentioned in subsection (3) (if applicable); or

(b) if subsection (4) or (5) applies – the amount worked out in accordance with whichever of those subsections is applicable.”

35. Having regard to the definitions of an “NDIS amount” and “participant’s impairment”, these provisions are drafted on the premise that an amount paid under the NDIS Act in respect of reasonable and necessary supports is an amount paid in respect of an impairment in relation to which the participant meets the disability requirements, or the early intervention requirements, to any extent. That is to say, reasonable and necessary supports are paid in respect of impairments that meet the disability requirements in s 24 of the NDIS Act or the early intervention requirements in s 25.

36. Finally, I have looked to the rules made under s 209 of the NDIS Act. As a general rule, provisions of delegated legislation may not be used to interpret the provisions of the Act under which they are made.^[22] An exception to that rule arises if an Act and delegated legislation made under it establish an interdependent regulatory scheme.^[23] This is a situation in which the NDIS Act and delegated legislation in the form of the Supports for Participants Rules establish an interdependent regulatory regime. The Supports for Participants Rules are made under s 209 of the NDIS Act for the purposes of ss 33 and 34 and commenced operation on the same day as the NDIS Act i.e. 1 July 2013. Furthermore, the CEO is obliged to facilitate the preparation of a participant’s plan in accordance with those rules.^[24]

37. The Support Rules do not, however, take the matter any further. Like the provisions of ss 33 and 34 and of Part 2 of Chapter 2 generally, they do not allude to the permanency or otherwise of a participant’s impairment or impairments. Indeed, they are not cast in terms of a participant’s disability either. Rather, they are cast in terms of supporting outcomes such as assisting a participant to pursue the goals, objectives and aspirations in his or her statement of goals and aspirations or facilitating a participant’s social or economic participation.^[25]

38. Having regard to the matters I have addressed above, I have decided that supports that are reasonable and necessary supports must be determined in accordance with s 34 and the Support Rules with regard to any impairment or impairments in relation to which that participant meets the disability requirements, or the early intervention requirements, as set out in ss 24 and 25 respectively.

The questions

39. Having identified the context in which reasonable and necessary supports are to be determined, I now turn to the general issues and then to the types of questions asked by the Agency and to which VGCP has objected. At a general level, VGCP has stated that she should not be required to use the funding from her participant’s plan or to use her own funds to pay for further reports from AHPs. The answer to her objection is that she is not being required to do that. The Agency will meet the expenses in these circumstances. VGCP’s second general point is that she has already obtained answers to the relevant questions, which inform the matter before the Tribunal. The Agency does not agree that she has. I would make the general observation that, while VGCP may object to certain questions being put to AHPs or to other professionals, she cannot be arbiter of their relevance for either the Agency or for the Tribunal. It is a matter that must be considered.

40. VGCP frames her next objection in the following terms:

“At paragraph 8 of the Statement of Issues dated 20 August 2020 the Respondent confirms the issue refers to s 34(1) of the Act, and further that there is a question as to whether supports relate to the Applicant’s disability under Rule 5.1(b) of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016.

1. The Applicant is already a participant of the NDIS. The rules for becoming a participant are not relevant to a decision about reasonable and necessary supports. Any information sought for the purposes of determining the Applicant’s eligibility for the NDIS are unrelated to the issue before the Tribunal.:^[26]

41. I note that [8] of the Respondent’s Statement of Issues reads:

“The issue before the Tribunal is whether the requested supports are reasonable and necessary as per s 34(1) and in particular whether they are related to the Applicant’s disability.”

42. No reference is made in [8] of the Respondent’s Statement of Issues to the Becoming a Participant Rules. Reference is made to whether the requested supports are reasonable and necessary for the purposes of s 34(1) and, in particular, whether they are related to VGCP’s disability. For the reasons that I have given, I consider that reasonable and necessary supports must be identified having regard to any impairment or impairments in relation to which that participant meets the disability requirements, or the early intervention requirements, as set out in ss 34 and 34. The task of identifying any impairment or impairments in relation to which that participant meets the disability requirements is one, but only one, of the access criteria that must be met under s 21. Its consideration in the context of s 34 is not for the purpose of access to the NDIS but for the purpose of ensuring that the CEO approves as reasonable and necessary those supports that are relevant to a participant’s impairment or impairments at the time each participant’s plan is prepared. They may change from time to time. In this case, for example, the statement of participant supports would seem to have been developed on the basis that VGCP’s hearing impairment met the disability requirements of s 24. At the time of the preparation of a statement of participant supports for a participant’s first plan or when reviewing that plan or preparing or reviewing a later plan, it is appropriate and necessary that the CEO consider whether that VGCP’s hearing impairment is her only impairment or whether she is suffering from others that meet the disability requirements. The process is dynamic and not focused on a snapshot taken at the time a person becomes a participant in the NDIS.

43. The Agency asked VGCP’s Physiotherapist whether she had been referred to a pain specialist and or pain management clinic. On her behalf, Ms Anderson objected to this question on the basis that it went to the issue of permanence and not reasonable and necessary supports but I have already explained my position on that issue. She also objected on the basis that it is not the role of a Physiotherapist to make referrals to medical practitioners or to comment on treatment recommendations made by them. I do not accept that the Physiotherapist is being asked to do either. The question can be answered either in the affirmative or the negative. On behalf of the Agency, Ms Musgrove confirmed that this was the way in which it intended the question to be answered.

44. As with other questions, Ms Anderson pointed to other documents in the documents lodged under s 37 of the AAT Act where she said that the question had been answered. They were T5, T6 and T13. I note that T5 and T6 are reports from an Anaesthetist dated 11 April 2016 and 7 December 2016, who is referred to in a letter dated 17 March 2020 as Pain Management Specialist by VGCP’s General Practitioner at T13.^[27] Reference to that material does not answer the question whether VGCP has been referred to a pain specialist in more recent times and the Physiotherapist is simply being asked whether she knows whether that has happened. She is not, as Ms Anderson has also submitted, being asked to make a referral to a pain specialist.

45. The Agency also asked the Physiotherapist: “What medication (if any) is the Applicant taking for ‘muscular pain flare ups’? Or otherwise, what strategies are in place to manage muscular pain flare ups, and how are these strategies measured to achieve an outcome?” Objection to the question was taken on the basis that it is not the role of a physiotherapist to prescribe medication and that the question had already been answered in evidence available to the Agency at T13. There is no suggestion in the question that the Physiotherapist is being asked to prescribe medication. The General Practitioner gave a very comprehensive report and it is included at T13. The Physiotherapist is being asked for her views as to the strategies that are in place and how they are measured to achieve an outcome. A General Practitioner and a Physiotherapist each has her specialist knowledge. The Agency is entitled to ask a question of this sort.

46. This is a sample of the objections made to the Agency’s questions. The remainder are of the same ilk as are my responses. In my view, the Agency is entitled to ask its questions of the AHPs.

DECISION

47. For the reasons I have given, I have decided that:

(1) for the purpose of specifying a statement or participant supports, s 34 of the National Disability Insurance Agency Act 2013, reasonable and necessary supports are determined by reference to any impairment or impairments in relation to which a participant meets the disability requirements under s 24 or the early intervention requirements under s 25; and

(2) the questions posed to three named Allied Health Professionals are directed to relevant issues and do not extend beyond the scope of their professional expertise.

I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie

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

Personal Assistant

Dated: 11 December 2020

Heard: Advocate for the Applicant:	30 November 2020 Ms N Anderson Villamanta Disability Rights
Solicitor for the Respondent:	Ms H Musgrove HWL Ebsworth Lawyers Ms A Zieger National Disability Insurance Agency

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^[1] NDIS Act; ss 3(1)(d) and (f)
^[2] NDIS Act; s 3(2)(c)
^[3] NDIS Act; s 3(3)(d)
^[4] NDIS Act; s 28(1)
^[5] NDIS Act; s 21(1)
^[6] NDIS Act; s 24
^[7] NDIS Act; s 209(1)
^[8] NDIS Act; s 29
^[9] NDIS Act; s 32
^[10] NDIS Act; ss 33(1) and (2)
^[11] NDIS Act; s 33(2)
^[12] NDIS Act; ss 9 and 13(2)
^[13] NDIS Act; s 35(1)
^[14] NDIS Act; s 35(2)
^[15] I note that a person may meet the access requirements of s 21 of the NDIS Act and become a participant by meeting the early intervention requirements set out in s 25. In the context of the issues in this case, the principles remain the same regardless of whether a participant meets the early intervention requirements or the disability requirements and I will not refer to them separately.
^[16] [2015] FCA 544; Mortimer J
^[17] [2015] FCA 544 at [51]
^[18] Ratified by Australia on 17 July 2008; [2008] ATS 12 and see [2015] FCA 544 at [15]
^[19] [2015] FCA 544 at [51]
^[20] [2015] FCA 544 at [16]
^[21] [2015] FCA 544 at [51]- [52]
^[22] The Australian authorities supporting this position are referred to in Statutory Interpretation in Australia by DC Pearce and RS Geddes (Butterworths, 8^th edition, 2019 at [3.17]) and include Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 77 ALR 8 at 14 per Mason CJ and Gaudron J and Secretary, Department of Health, Housing, Local Government and Community Services v Kaderbhai [1994] FCA 1197; (1994) 122 ALR 577 at 583-4 per Foster, Whitlam and Cooper JJ in which reference was made to the passage from the judgement of Brennan J in Webster v McIntosh [1980] FCA 128; (1980) 32 ALR 603 at 606: "... the intention of Parliament in enacting an Act is not to be ascertained by reference to the terms in which a delegated power to legislate has been exercised."
^[23] See Hanlon v Law Society [1981] AC 124 at 193; Lord Lowry and, more recently, PIPE Networks Pty Ltd v Commonwealth Superannuation Corporation [2013] FCA 444; (2013) 212 FCR 542 at [93]; 557; Tracey J.
^[24] NDIS Act; s 32(2)
^[25] Support Rules; rr 2.3(a) and (b)
^[26] Applicant’s Submissions at [6]
^[27] T documents; T13 at 55 and 62