Challenging an NDIA Decision about Reasonable and Necessary Supports

As the National Disability Insurance Scheme (“NDIS”) continues to be rolled out, cases are coming before state Administrative Appeals Tribunals to challenge decisions made by the National Disability Insurance Agency (“NDIA”) as to what constitutes reasonable and necessary supports under the Act.

The recent Victorian case of King and National Disability Insurance Agency [2017] AATA 643 (4 May 2017) highlights that should an NDIS participant disagree with an NDIA decision about what constitutes reasonable and necessary supports, they have rights and avenues to challenge such decisions.

Facts of the Case

The Applicant, Ms King, was a 35 year old woman who suffers from medical conditions, including: “spastic quadriplegic cerebral palsy, a mild intellectual disability and mild vision and hearing impairments”. As such, the Applicant had difficulty walking on her own and without a particular form of physiotherapy – Bobath physiotherapy – required a wheelchair.

The Applicant applied for a review of her statement of participant supports with the NDIA. This was pursuant to an agreement she had entered into with the NDIA on 12 August 2016. The Applicant sought:

  • The inclusion of an additional 20 hours of physiotherapy (at $175 an hourly session); and
  • a gym membership (at $570 a year).

The NDIA rejected these supports because it did not consider them “reasonable and necessary supports” under section 34 of the National Disability Insurance Scheme Act 2013 (Cth).

While the NDIA later agreed to fund particular portions of the requested gym membership and physiotherapy sessions, these were not agreed to be funded in full.

Decision

After considering the evidence proffered by Ms King, her mother Mrs King (Ms King’s carer) and Ms King’s physiotherapist, the Tribunal made an order that Ms King’s plan change to include:

  • The inclusion of a fortnightly Bobath physiotherapy sessions for the rest of the plan (at $175 an hourly session);
  • a gym membership (at $570 a year); and
  • An additional five physiotherapy sessions ($175 per hourly session) to be taken at any time for the purpose of:
    • Three physiotherapy sessions for the purpose of training Ms King’s carer to assist her to undertake activities at the gym recommended by Ms Clatworthy;
    • Two physiotherapy sessions at Ms King’s home.

Reasons

Amongst other reasons, the Tribunal held that the above proposals would help Ms King to improve her mobility, and therefore meet her “objectives and aspirations included in her statement of goals and aspirations”. These aspirations included being able to be more independent from her mother by being able to walk.

The Tribunal was also satisfied that the costs were reasonable. The NDIA did not press this issue further, or claim that an alternative provider might be more suitable after hearing the evidence from her physiotherapist that only Bobath therapy would succeed in helping to mobilise Ms King.

Our thoughts

As the NDIS continues to be rolled out it is important for participants to know that they have an avenue by which to challenge decisions should they need to.

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