A review by the Administrative Appeals Tribunal considered whether swallowing supports were part of the necessary supports provided under the National Disability Insurance Scheme (NDIS) for a severely disabled man who had difficulty swallowing (dysphagia) or a responsibility of the State general health system.
Two eating plans involving thickened fluids prepared by a dietician familiar with disabled man were rejected by the National Disability Insurance Agency (agency), which administers the NDIS.
The agency contended as its principal submission that the support requested was health-related, and that health-related supports would not be funded under the National Disability Insurance Scheme Act 2013(Cth) (Act), even if the health system did not make them available either.
Further, the agency rejected the initial eating plan as too expensive and that cheaper alternatives were available.
Evidence established that the necessary thickened fluids had previously been funded by the New South Wales government, but that support had ended in October 2018. Since that date the disabled person’s father had struggled to fund the support at a lesser level of quality. Without thickened fluids, the evidence was that the disabled person suffered both personal and serious health detriments.
The Tribunal’s review involved a consideration of whether the supports were reasonable and necessary. Section 34(1)(a) requires the agency’s CEO to be satisfied that the support will assist the participant to pursue the goals, objectives and aspirations included in his statement of goals and aspirations. Those goals include to remain active and engaged in social circles and his community, and to ensure he has access to the equipment and environment which will enable him to be safe and happy.
The Tribunal held that this requirement was met. The evidence was clear that without the swallowing supports the disabled person was at risk of serious health complications, most importantly pneumonia, and was personally affected as to his level of happiness and his ability to socialise.
The further issued raised by the Agency involved section 3 (1)(c) of the Act that deals with value for money. The initial eating plan was rejected as too expensive. Would it be proper to substitute as cheaper food supplement than the one recommended by the dietician? The disabled person had already been on the cheaper regime since October 2018 (when NSW funding ceased), and had lost weight and condition. This in turn affected the quality of his life. The cost differential between quality pre-mixed food and manually mixed food (which carried risks of improper mixing by staff) was $40 per day. The Tribunal held that such a differential could not affect the overall viability of the NDIS.
Section 34(1)(f) of the Act provides that the support is a reasonable and necessary support if:
“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:
- as part of a universal service obligation; or
- in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.”
There had been previous decisions of the Tribunal that stated that if the support required was health-related, even if the support was not funded by health authorities, the support was not appropriately funded by the NDIS. The Tribunal in this case declined to follow these previous decisions. The Tribunal was also unpersuaded by the findings of the Productivity Commission to the same effect:
“The remarks of the Productivity Commission do not appear to me to justify the general conclusion that the NDIS will never provide for a health-related need which the health services do not cover. The Commission made it clear…that there were difficulties in drawing the line between the disability service system and other mainstream service systems. In short, for a conclusion to be reached that the NDIS will not fund a health-related support which the health authorities do not fund, even if it is otherwise a reasonable and necessary support, it seems to me that the Act or the rules should say so. I would therefore respectfully not follow the decisions which have been based on the line of reasoning…depending on the contents of the Productivity Commission report which…have concluded that health related expenditure not funded elsewhere will not be funded under the NDIS because of s.34(1)(f). The cases begin with Young and National Disability Insurance Agency  AATA 401…and subsequent cases which have followed them.”
The Tribunal concluded that the reviewable decision should be set aside and the matter remitted to the NDIA for reconsideration, with the direction that the support claimed, based upon the original eating plan with more expensive pre-mixed food, was a reasonable and necessary support
This is an important decision giving direction to the Agency about the correct interpretation of their guiding statutory provisions. It is expected that the Agency will now revise its policies and guidelines in the light of the decision.
The decision should also assist those seeking support to be provided with not just the cheapest support, but the most appropriate support in their circumstances.
Further, the blurred line between what is a responsibility of the NDIA and State health authorities has become a little clearer, but further litigation is to be expected.