AustLII Home | Databases | WorldLII | Search | Feedback

Precedent (Australian Lawyers Alliance)

You are here:  AustLII >> Databases >> Precedent (Australian Lawyers Alliance) >> 2014 >> [2014] PrecedentAULA 56

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

McIllwraith, Janine --- "First NDIS cases: Clarifying the complexity" [2014] PrecedentAULA 56; (2014) 125 Precedent 4


FIRST NDIS CASES

CLARIFYING THE COMPLEXITY

By Janine McIlwraith

The National Disability Insurance Scheme (NDIS, or Scheme) has been described as a ‘truly pioneering piece of economic and social reform’ and possibly the most significant reform since the introduction of Medicare in 1975.[1] The Scheme launched on 1 July 2013 in four trial sites[2] and, as of 1 July 2014, three further sites[3] have been launched. The NDIS is scheduled to be in full operation across the country by July 2019.

There have been mixed reports in the media about the success of the Scheme to date. The Capabilities Review Report released in March 2014 received much media attention when it described the National Disability Insurance Agency (NDIA) as ‘like a plane that took off before it had been fully built and is being completed while it is in the air’.[4] Given the scale of the reform proposed and the fact that the National Disability Insurance Agency (NDIA, or Agency) came into being the same day the Scheme launched, it is to be expected that issues will arise with the implementation and administration of the Scheme. This is even more likely to be the case when you consider the complexity of the legislative framework underpinning the Scheme.

LEGISLATIVE FRAMEWORK

The Scheme was created by the National Disability Insurance Scheme Act 2013 (the Act), a Commonwealth piece of legislation with considerable subordinate instruments. The Minister has made NDIS Rules under s209(3) of the Act. There are currently 14 Rules, which form part of the legislation. Further, there are Operational Guidelines to assist NDIA staff in making decisions under the legislation. There are currently 68 such guidelines, covering areas relating to: Gateway, General Conduct, Access, Planning and Assessment, Supports in Plans, Review of Plans, Children, Nominees, Review of Decisions, Information Handling, Compensation and Registered Providers.

Interpreting the legislation has been aided by cases determined by the Administrative Appeals Tribunal (AAT, or Tribunal). Two issues have already been brought before the AAT and are worthy of comment. Firstly, in regards to what constitutes disability. And, secondly, in relation to what will constitute ‘reasonable and necessary’ supports.

DEFINING DISABILITY

There are three core access criteria for the NDIS set out under s21 of the Act, all of which must be met. They relate to age, residence and disability.

The word ‘disability’ is not defined in the Act or Rules.

The disability requirement is set out under s24 and has five cumulative components. In order to meet the disability requirement:

1. The person must have a disability attributable to one or more cognitive, intellectual, sensory, neurological or physical impairments or to one or more impairments attributable to a psychiatric condition;

2. There must be a likelihood that the disability is permanent;

3. The disability must result in substantially reduced functional capacity, in respect of one or more of social interaction, communication, mobility, self-care, self-management and learning;

4. The disability must affect the person’s capacity for social and economic participation; and

5. There must be a likelihood that the person will require support under the NDIS for their lifetime.

The National Disability Insurance Scheme (Becoming a Participant) Rules 2013 provide further guidance as to how ‘permanent impairment’ and ‘substantially reduced functional capacity’ may be determined.[5]

Rule 5.4 states that an impairment is likely to be permanent only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment. Under Rule 5.5, an impairment may be permanent even if there is fluctuating severity and where there are prospects that the severity of the impact of the impairment on the person’s functional capacity may decrease. Degenerative conditions are deemed to be permanent if treatment is not likely to improve the condition (Rule 5.7).

The term ‘substantially’ is not defined in the Act. However, Rule 5.8 provides that an impairment will result in a substantially reduced functional capacity in regards to communication, social interaction, mobility, self-care, self-management or learning, where the person:

(a) is unable to participate effectively or completely in the activity, or to perform the 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;

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

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

The Operational Guidelines – Access – Disability Requirements contains a list of conditions that will generally meet the criteria of impairment, permanence and substantially reduced functional capacity. That list includes things such as autism, cerebral palsy, spinal cord injury or brain injury, deafblindness, and amputation.[6]

There is also a list of conditions that will generally meet the impairment and permanence requirements but where an assessment of functional capacity may need to be undertaken. They include Asperger’s, childhood autism, Alzheimers, Parkinson’s Disease, Louis-Bar Syndrome, and multiple sclerosis.

A person may be able to access the NDIS despite not meeting the disability requirement where they meet the early intervention requirements under s25. There are three cumulative requirements, they are:

1. that the person has impairments likely to be permanent or is a child who has developmental delay;

2. early intervention is likely to benefit the person by reducing their future need for supports in relation to the disability;

3. early intervention is likely to benefit the person by various qualitative concepts focused on improved functional capacity or by strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.

Of note, both points 2 and 3 must be demonstrated to the satisfaction of the CEO of the NDIA.

‘Developmental delay’ is defined under s9 of the Act and expressly relates to a child under six years of age. ‘Carer’ is also defined under s9 and appears to focus on voluntary care.

Once again, the NDIA published a list of conditions that will generally meet the criteria for providing early intervention supports. These include autistic disorder, cerebral palsy, deafblindness, Down Syndrome, Fragile X Syndrome, Rett’s Syndrome.

In Mulligan and National Disability Insurance Agency,[7] the AAT was required to consider whether the applicant met the disability requirements for the NDIS.

Mulligan v NDIA

Mr Mulligan was at the time of the hearing 61 years of age and had chronic ischaemic heart disease, Conn’s Syndrome, cardiomyopathy and sciatica from two ruptured discs in his back. He lived with his wife and adult son in a Department of Housing home. For approximately the last 10 years, he had been on a Disability Support Pension, but continued to work when he was able.

Mr Mulligan sought funding through the NDIS for someone to mow his lawn as he was unable to do so himself due to severe shortness of breath upon exertion. The NDIA determined that Mr Mulligan did not qualify to be a participant in the NDIS and he sought review by the Tribunal.

There was no dispute that Mr Mulligan met the age and residence requirements. The issue was whether he also met the disability requirements under s24(1). The Tribunal looked at the definition of ‘disability’ in the United Nations Convention on the Rights of People with Disability and the Explanatory Statement to the National Disability Insurance Scheme (Becoming a Participant) Rules 2013, which acknowledges that the NDIS adopts a narrower, functional definition of disability with the focus of ‘disability’ being on a reduction or loss of an ability to perform an activity which results from an impairment.

The Tribunal then considered each of the five cumulative requirements of s24(1) in turn. The Tribunal was satisfied that Mr Mulligan satisfied subsection (a) in that he has a disability attributable to his physical impairments because they result in a reduction or loss of the ability to perform certain tasks, although found it not necessary to finally decide that issue. It was agreed and the Tribunal was satisfied that Mr Mulligan satisfied subsection (b) in that his impairment was permanent.

The Tribunal found that Mr Mulligan’s participation in social and economic activities was affected and he therefore satisfied subsection (d). The Tribunal noted that this subsection required only that the person’s capacity be affected, not that it be affected to any particular degree. In relation to whether Mr Mulligan satisfied subsection (e) in requiring support for his lifetime, the Tribunal noted that there was no guidance available to them on that issue. The NDIA argued that it was reasonable to expect Mr Mulligan’s son to provide informal support by way of mowing the lawn. However, the Tribunal noted that the prospect of informal support was relevant to the consideration of funding but not to the issue of whether a person meets the disability requirement. Counsel for Mr Mulligan argued that Mr Mulligan met the requirements of requiring lifetime support because he had permanent impairments that were unlikely to improve, creating a need for support for his lifetime. The Tribunal was minded to find that Mr Mulligan satisfied the requirement, but that it was not necessary for it to finally decide that issue.

The real issue was whether Mr Mulligan could be said to have a substantially reduced functional capacity and therefore satisfy subsection (c). Mr Mulligan gave evidence that his shortness of breath combined with his back pain made it very difficult for him to perform everyday activities. The NDIA organised for Mr Mulligan to be assessed by an occupational therapist. The Tribunal was of the opinion that the occupational therapist’s report concluded that Mr Mulligan was independent in mobility and self-care. However, her oral evidence before the Tribunal was that Mr Mulligan’s capacity for mobility and self-care was substantially reduced. She explained that while he was independent, it was only with difficulty and pain, and that he was required to expend a lot of energy in compensatory strategies.

The Tribunal considered the meaning of ‘substantially reduced functional capacity’ under Rule 5.8 and stated that there was no doubt that Mr Mulligan performed most activities of daily living with difficulty and in pain. The Tribunal accepted that his capacity for functioning in the areas of social interaction, self-care and mobility were reduced, but was not satisfied that his capacity was substantially reduced. They noted that he was able to perform tasks independently, with the use of only commonly available aids. Therefore, the Tribunal held that Mr Mulligan did not meet the disability requirements in s24(1) of the Act.

WHAT ARE ‘REASONABLE AND NECESSARY SUPPORTS’?

Once a person is accepted as a participant in the NDIS, a plan is prepared by the NDIA in consultation with the participant and approved by the CEO. A plan has two parts: firstly, a statement of the participant’s goals and aspirations, prepared by the participant; and secondly, a statement of supports prepared by the NDIA with the participant and requiring the approval of the CEO (s33). The second part of the plan details the supports to be provided or funded. In order to be funded under the NDIS supports must be ‘reasonable and necessary’.

Section 3 of the Act states that one of the objects of the Act is to ‘provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch’.[8] Under s34 of the Act, ‘general supports’ provided under the Act and ‘reasonable and necessary’ supports to be funded can be provided or funded only where the CEO is satisfied of eight criteria.

The CEO must be satisfied that the support will assist the participant to pursue goals, objectives and aspirations detailed in their statement of goals and aspirations (34(a)) and undertake activities so as to facilitate their social and economic participation (34(b)). Further, the CEO must be satisfied that the support is likely to be beneficial and effective, having regard to current good practice (34(d)). In relation to funding, the CEO must be satisfied that:

o The support represents value for money when the benefits achieved and the cost of alternative supports are considered (34(c));

o Consideration has been given to what it is reasonable to expect families, carers, the community and informal networks to provide (34(e)); and

o The most appropriate funding for the support is through the NDIS and not through other general systems of service delivery or support; that it is not funded as part of a universal service obligation or as part of reasonable adjustments required as a result of a law dealing with discrimination on the grounds of disability (34(f)).

Each of the eight matters that the CEO must consider are expanded upon in the National Disability Insurance Scheme (Supports for Participants) Rules 2013.

Two decisions of the AAT to date have considered what should be deemed ‘reasonable and necessary’. They are both briefly outlined below.

Young and NDIA[9]

Mr Young has type 1 diabetes for which he requires insulin and emphysema for which he requires supplemental oxygen. Up until 2011, Mr Young injected insulin up to eight times a day. Since that time, he has used an insulin pump which regulates the dosage of insulin. The use of the insulin pump prevented Mr Young’s mood swings and saved him the embarrassment of having to find somewhere in public to self-inject insulin. He relies on a fixed oxygen supply at his bedside and a portable oxygen cylinder on a trolley when he has to go outside of the house. Mr Young finds the trolley embarrassing and it restricts his access to the community. A portable oxygen concentrator is a battery-powered device carried like a shoulder bag, providing greater freedom.

The medical evidence was that Mr Young required portable oxygen to maintain good health. In addition, his endocrinologist recommended he continue to use an insulin pump to achieve tighter and more stable glycaemic control.

Insulin is available under the Pharmaceutical Benefits Scheme and the needles Mr Young previously used to inject himself were provided free under the National Diabetes Support Service (NDSS). No funding is available for adults for insulin pumps. The insulin pump Mr Young was using at the time of the trial was paid for by his previous private health insurer; at the time of the hearing, Mr Young no longer had private health insurance. The pump came with a four-year warranty and was covered under warranty until 2015.

Mr Young was accepted as a participant in the NDIS in August 2013. He had requested in his planning meeting that he be provided with funding for a portable oxygen concentrator and an insulin pump. The NDIA was of the view that both items were more appropriately funded through the health system and denied funding for those items.

The Tribunal noted that not every support required by a participant will be funded by the NDIS. The Tribunal referred to s34 and the eight criteria of which the CEO needs to be satisfied before approving the reasonable and necessary supports to be provided or funded. Counsel for the NDIA submitted that the insulin pump and oxygen concentrator were not appropriately funded under the NDIS and that they did not represent value for money in relation to the benefits achieved and the costs of alternative supports. The Tribunal was of the opinion that while there may be merit in the ‘value for money’ argument, the primary issue was whether the supports were appropriately funded under the NDIS pursuant to subparagraph (f). Subparagraph (f) states that the support must be most appropriately funded or provided through the NDIS and not be more appropriately funded or provided through other general systems of service delivery as part of a universal service obligation.

Schedule 1 to the Supports for Participants Rules sets out the criteria that must be taken into account in deciding whether a support is most appropriately funded under the NDIS stating (at Rule 7.4):

‘The NDIS will be responsible for supports that relate to a person’s ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment.’

The NDIA submitted that the insulin pump and oxygen concentrator did not meet Rule 7.4 because they were not supports that allow Mr Young to undertake his daily activities but, rather, provide benefits or supports that are additional to his needs. Counsel for Mr Young submitted that Mr Young’s ability to access the community was severely burdened by the oxygen trolley and having to inject insulin; both causing him inconvenience and embarrassment.

The Tribunal accepted without hesitation that Mr Young finds it inconvenient and embarrassing to use an oxygen trolley in public and that the insulin pump had improved his quality of life. However, the Tribunal was not satisfied that he is unable to undertake the activities of daily living without them; he is able to undertake the activities of daily living with the oxygen trolley and insulin injections. The Tribunal stated that the fact that Mr Young’s current oxygen requirements and insulin pump were funded under the public and private health systems supported its conclusion that insulin pumps and oxygen concentrators are more appropriately funded through the health system. The Tribunal stated:

‘Whether or not funding is available through other general systems is not the test of whether it is most appropriately funded or provided through the NDIS. The fact that the health system does not fund entirely, or even at all, what is essentially clinical treatment, or some other form of support that is more appropriately funded through the health system, does not make it the responsibility of the NDIS ... the purpose of the NDIS is not to respond to any shortfalls in mainstream services’.[10]

Further, as Mr Young had an insulin pump at the time of the hearing that was covered under warranty until 2015, the Tribunal was of the opinion that he therefore did not have a current need for funding in relation to an insulin pump.

TKCW and NDIA[11]

TKCW is a three-year-old boy with Autism Spectrum Disorder. He was accepted as a participant in the NDIS under the early intervention requirements.

TKCW’s mother sought funding for The Listening Program (TLP) which is a form of sound therapy, and a carer for TKCW’s twin brother while he attends therapy.

The Tribunal was provided with a number of reports concerning TLP from a range of sources; some articles were provided by TKCW’s mother and some by the NDIA. The Tribunal also had reports from TKCW’s treating speech and occupational therapists and also heard evidence from independent experts.

The Tribunal noted that there is a paucity of research about the benefits or otherwise of TLP.

The two criteria which the Tribunal thought relevant to consider in deciding whether TLP should be funded by the NDIS for TKCW were s34(1)(c) & (d). That is, that 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 (c); and that the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice.

The Tribunal noted that the Supports for Participants Rules Part 3 sets out the criteria that the CEO must use in deciding whether a support is likely to be effective and beneficial, having regard to good practice as required by s34(1)(d). Under Rule 3.2, the CEO is required to consider the available evidence which may include published and reviewed literature and consensus statements; the lived experience of the participant and carers; and anything the NDIA has learned through its delivery of the NDIS. Rule 3.3 states that the CEO must take into account and seek, if necessary, expert opinion.

The Tribunal stated that ‘current good practice’ is ‘practice which, even if not widely used, is recognised by sufficient numbers of practitioners as being based on sound evidence’.[12]

The Tribunal also noted that there may be some tension between the need under s34(1)(d) for interventions to be considered ‘current good practice’ and one of the objects of the Act set out under s3(g) which states that the NDIS is ‘to promote the provision of high quality and innovative supports’. The Tribunal felt bound by the requirements of s34(1)(d) and stated that innovation, of itself, cannot displace those requirements.

Ultimately, the Tribunal was of the view that there is insufficient information to say with any confidence that TLP will be, or is likely to be, effective and beneficial for TKCW, having regard to current good practice. In reaching its conclusion, the Tribunal stated:

‘We have borne in mind the provisions in the NDIS Act that require us to have regard to the need to ensure financial sustainability of the scheme. In our view, it could undermine that financial sustainability to provide funding for a support whose effectiveness and benefits are largely unknown, especially where a reliable means of measuring benefits of the supports in a single case are lacking.’

In regards to whether TLP represents value for money, the Tribunal noted the requirements under Part 3 of the Supports for Participants Rules and, in particular, Rule 3.1 which sets out what the CEO must consider in determining whether a support represents value for money. The Tribunal held that, as it was unable to be confident of the benefits TLP was likely to achieve, TLP did not represent value for money.

In regard to a carer being provided for TKCW’s twin brother while TKCW attended therapy with his mother, the Tribunal noted that one of the principles of the Act under s4 is that the role of families, carers and other significant persons in the lives of persons with disability is to be acknowledged and respected. As childcare for TKCW’s brother was being provided at the time by a helper provided by Disability South Australia, it was not a reasonable and necessary support at the time of the application. While the Tribunal accepted that the hours the carer was available were not those that TKCW’s mother would find the most beneficial, it was of the view that it was reasonable to expect the family to make the relatively minor adjustment to accommodate the carer’s availability. As such, the Tribunal held that funding for a carer for TKCW’s brother did not meet the requirements of s34(1)(e).

CONCLUSION

As with any new legislation, aspects will be open to interpretation and challenge. A little more than one year since the launch of the NDIS in the initial trial sites, we are starting to see judicial consideration of some of the fundamental concepts contained within the Act. In particular, the disability requirement and what will be considered reasonable and necessary supports can be expected to be subject to further consideration. It is my understanding that at least one of the decisions discussed above may be challenged by the applicant in the Federal Court. More cases reaching the level of review by the AAT can only aid in people’s understanding of the Scheme and the predictability with which it is administered. Such certainty and reliability is fundamental to the broad acceptance of the Scheme and continued community support for it.

Janine McIlwraith is a senior lawyer practising exclusively in the area of health law. She is also co-author of Australian Medical Liability, Health Care and the Law (6th ed), and the National Disability Insurance Scheme Handbook, as well as a number of chapters for Halsburys Laws of Australia relating to health law and professional regulation. PHONE (02) 4929 3995 EMAIL: janinem@chpartners.com.au.


[1] Bruce Bonyhady, Chair of the NDIA, in his address to the National Press Club on 9 July 2014: http://www.ndis.gov.au/sites/default/files/documents/press_club_address_9July2014.pdf.

[2] The Barwon area of Victoria, the Hunter Area of NSW, the state of South Australia for those aged up to six years, and the state of Tasmania for those aged 15-24 years.

[3] The ACT, the Barkly region of the NT and the Hills district in Perth.

[4] Available at http://www.ndis.gov.au/sites/default/files/documents/capability_review_2014_0.pdf (accessed 1 June 2014).

[5] http://www.ndis.gov.au/about-us/legislation-rules-and-government-agreements.

[6] https://www.ndis.gov.au/document/319.

[7] Mulligan and National Disability Insurance Agency [2014] AATA 374 (13 June 2014).

[8] Section 3(1)(d).

[9] Young and NDIA [2014] AATA 401(20 June 2014)

[10] Ibid, at [4].

[11] TKCW and NDIA [2014] AATA 501 (23 July 2014).

[12] Ibid, at [70].


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/PrecedentAULA/2014/56.html