The Tribunal Case That (Should Have) Stopped the Nation

The job of the Administrative Appeals Tribunal (AAT) is to smooth out points of complexity and disagreement in the NDIS. But sometimes you get the impression they probably weren’t expecting the level of mind-bogglingly complexity and vehement disagreement that they have been forced to encounter. PM* v the NDIA is one of those cases. The ruling covers a remarkable amount of ground, with decisions you will probably agree with and others you will not; decisions which are groundbreaking and others that are pretty mundane.  Both sides would have probably left the hearing feeling like both winners and losers. But for everyone else involved in the NDIS, trying to get their head around what the reasonable and necessary criteria mean for day-to-day implementation, this case is a winner.

There was so much must-read information in this case, that there was no way one article could do it justice.  So stay tuned for Part 2 in two weeks!

The Background

PM is a 25 year old man who lives with severe schizencephaly, epilepsy, a severe visual impairment, a profound intellectual disability, spastic quadriplegia, severe asthma, severe gastric reflux, osteoporosis, scoliosis, chronic deteriorating pulmonary condition, sleep apnoea and sun sensitivity. His goals with the NDIS are to spend quality time with his family, ensure his equipment is up to date and safe, optimise his health, learn to trust his carers and participate in stimulating social activities.

He and his family appealed his first Plan because they felt it did not meet his support needs. In typical NDIS style, his first Plan expired before the issues could be resolved. However, given his second Plan is effectively the same and getting him to start a new appeal would obviously be ridiculous, the NDIA graciously agreed to reflect the Tribunal’s decision in his current Plan. The two parties reached agreement on a whole bunch of supports before the hearing, but many items remained in dispute.

Health V. The NDIS

 It feels a bit like Groundhog Day every time we delve into the controversial and mind-bogglingly world of the interface between Health and NDIS. It is like just when you feel like you have started to get a grip on the topic, something new comes along and you realise:

Image: Actor of Jon Snow from Game of Thrones saying “I know nothing, apparently.”

The basic rule is that in accordance with the reasonable and necessary criteria outlined in the NDIS Act, the Scheme will not fund anything that would be more appropriately funded by health or other government systems. The NDIA contended that some of the supports that PM requested fell into the category of health care responsibility. These were:

  • A portable suction pump. PM uses a function pump to prevent fluid entering his lungs. The health system has provided him a pump for his bedroom. However, it is too heavy to move around. Currently, he uses a foot pump when mobile. But this, as I assume you can imagine, is extremely labourious. 

  • A heavy duty nebuliser. A nubuliser is a machine that changes liquid medication into vapour. They are often used for respiratory conditions. PM uses a heavy duty nubuliser at least 5 times a day. His mother describes it as for the purpose of keeping him well.

  • A back up generator. PM and his family requested a back-up generator to ensure that his equipment can operate and all his supports can be delivered in the event of a black out. In the region where the family lives, blackouts have been known to last 18-hours.  

  • Dietitian. He also request quarterly consultations at a dietitian with weigh-in facilities that can accommodate a wheelchair.

First off, the Tribunal disagreed with the NDIA that the purpose of the portable suction pump was to improve PM’s health and wellbeing. The suction pump provided by the health system is enough to keep him alive and physically well. The purpose of the portable pump is to allow him to leave his bedroom and access the community, which the Tribunal contends is an NDIS responsibility. This is a powerful ruling for Participants seeking funding for equipment that the Agency deems as medical. It suggests one of the central question that they have to ask themselves is ‘what is the purpose of the equipment?’ The answer could indicate whose funding responsibility it is (providing the support meets other reasonable and necessary criteria).  

There was also some talk of putting the pump in his bedroom onto a trolley to make it portable. While this might reek of desperation on the Agency’s part, the Tribunal has ruled in favour of make-shift portable options in the past. However, in this case, it was considered unfeasible.

However, on the other points of contention, the AAT ruled in favour of the NDIA. The heavy duty nebuliser was deemed a health care responsibility, which makes sense considering his mother compared it to an asthma puffer and described it as for the purpose of preventing infection.  

The Tribunal disagreed with the Agency that the back-up generator was a health care item because it supports medical equipment. As PM contended, electricity is necessary to ensure all his supports functions, including equipment funded by the NDIS. However, the house is on a priority list in case of electrical failure, and consequentially could receive a temporary back up generator in a long term black out. AAT felt that this was enough to ensure supports could be delivered to PM in an emergency.   

The dietitian issue is a lot more controversial. The Tribunal agreed with the NDIA that the Participant could see a dietitian through the five allied health sessions offered by Medicare. But the Agency’s statement on the issue is frankly incorrect: “dietician consultations are the responsibility of the health system...regardless of how many Medicare funded dietician consultations are actually provided to the [a]pplicant, or the venue of the consultation.” As we have explored in-depth in a previous article, dietitians can be funded by the NDIS in particular circumstances. This has been confirmed by the NDIA to the Australian Senate. So it is somewhat concerning that the AAT did not pull the Agency up on this misinformation. However, the ruling does not provide a lot of information about why the Participant was requesting a dietitian or how these sessions were to be used. Therefore, it is impossible to tell whether this conclusion is correct in these circumstances.  

Image: Woman saying “Who knows?”

We have only just scratched the surface of this case so far. In the next article, we will explore Core supports and the hot topic of what NDIS will fund to sustain informal supports. So stay tuned because:

Image: Homer Simpson saying “we’ll be right back” with news anchor then saying “I get to say that.”