Budget pressures are mounting, staffing for the NDIA and its LAC partners is becoming more and more difficult, and dissatisfaction with the Scheme is growing, as the Administrative Appeals Tribunal (AAT) made a big, pointy, important decision last week.
Section 34 of the NDIS Act, the “Reasonable and Necessary” definition, is among the most important, and contentious, frameworks of the NDIS. It is used to determine what supports and services will be funded in an NDIS plan. However, its interpretation varies, almost on a day to day basis, with the NDIS trying desperately to protect its budgets. The AAT’s ruling last week on the case of young LNMT (name redacted to protect her privacy) has set a precedent that is indeed, a game changer.
While participants struggle to make the most of their plans in thin markets with long waiting lists, they’re seeking supports and services from outside of traditional disability service providers that might help them reach their goals.
Anyone who deals with the NDIS regularly knows that if you call the Agency five times, and you’re lucky enough to speak to a live person each time, that you will likely get five different answers to a question about whether a support or service is allowed, especially when it comes to what is deemed “Reasonable and Necessary”.
Just a few weeks ago a senior planner, (one who I respect greatly) and I got into a little tiff. This planner told me that elastic shoelaces with a little toggle (used to replace regular laces when someone can’t tie their own shoes) for a teenager with a disability were not “Reasonable and Necessary” and could not be purchased with NDIS plan funds. The planner told me that it was a typical parental expense to buy shoelaces. I countered that shoes come with shoelaces they’d purchased already, and that these replacements were a disability related additional expense that was effective and beneficial, value for money, is not a day-to-day expense (shoes already come with regular, inaccessible, laces), helped a teen to meet their goals and is not what families generally need to purchase for their teenagers (unless they’re a triathlete!).
I’m not sure what bee was in that planner’s bonnet that day, but, to be honest with you, I just ignored that instruction. If elastic laces weren’t only about four bucks on eBay, I’d be claiming them from my own sons’ NDIS plan budgets!
But, you get my drift. Determining what is or isn’t reasonable and necessary under Section 34 of the NDIS Act has always been a guessing game. We (participants, Support Coordinators, Plan Managers and providers haven’t really had much practical guidance.
Anyway, along comes LNMT last week and blows it all outta da water!
LNMT is an 11yo girl who is blind, has cognitive impairments, a seizure disorder and behavioural support needs. She didn’t get what she needed in her NDIS plan, and her foster mother took it to review, and although the plan was improved somewhat at that internal review, it still didn’t meet her needs, so foster Mum decided to take it to the AAT.
Even this fact is noteworthy. The NDIA have recently been settling with participants before their cases make it to the Tribunal. These settlements are always confidential, but I can report estimates from local advocates that around 60% of internal reviews are confidentially settled with increased plan budgets that may not be as much as sought. These cases see the Agency hedging their bets. They are counting on participants wanting to avoid publicly sharing their life stories and intimate disability details with a bunch of strangers. A further 20% of requests probably have little merit so the Agency does not worry about those going to Tribunal. The final 20% are participants willing to go the extra mile to the AAT, although many of these also “settle” confidentially, at the 11th hour before tribunal hearings.
Why are so many reviews settling? We can only assume that the Agency is, rightly, quite terrified of what precedents the Tribunal might set, and what that might then mean to their $22B budget.
Well, LNMT has just set some of those precedents, and the NDIA and Minister are no doubt quivering in their boots right about now.
LNMT’s goals were pretty typical, solid goals for a kiddo with her disabilities – they included improving her communication, community access, emotional regulation and behaviour, independence, and ensuring her carer is supported to keep being her carer.
So, before the case got to the Tribunal, the NDIA already agreed to throw in a bunch of extras – assistive tech funds, a chunk more in her therapy bucket, and money for behaviour support. This is good, but her therapists and foster Mum figured it wasn’t good enough.
Let’s go through what they requested, and what the Tribunal ruled.
Decision: 104 hours of support coordination allocated over six months.
LNMT’s foster Mum asked for increased Support Coordination Funds. Her plan had gone from 208 hours to nada in the reviewed plan. The Agency was unable to explain this, so my guess was that this was essentially a “computer says no” error moment and/or “no support coordination past the first plan” moment. Either way, it is slightly daft. The Agency argued that Support Coordination was “someone else’s” responsibility – a “universal service obligation”, presumably that of the Department of Child Protection, perhaps?
The Tribunal put all that tosh to bed and reinstated a decent amount of support coordination. They said, “it is clear that a high level of support coordination is required, including a high level of liaison with her school”. This could be life-changing for many children, whose complex needs see them constantly suspended from school adding to “the already enormous workload” of a parent. The NDIA were unable (unwilling?) to explain how they determined the level of Support Coordination required.
Core Supports A:
Decision: funding granted for LNMT to go swimming three times a week.
Living in a remote town, swimming is the only social and community outlet that LNMT can access. She needs two people with her as she swims, so they can get her safely out of the water if she has a seizure. At Tribunal, her foster Mum agreed that she could help out at the pool once per week, and the Tribunal agreed that was reasonable and that she shouldn’t have to go three times per week. They determined that she should be given funding for two support workers twice per week, and for one worker once per week when Mum would be there to help.
This is a big deal for two reasons. Firstly, we are constantly being told that seizure disorders are “medical” and hence related supports (as well as associated risks) will not be covered by NDIS plans.
Secondly, Core Supports budgets for children have taken a massive hit in the past few months, with most being reduced by 40-60%. The NDIS has been informing parents that supporting community access, even for children with high levels of need, should be their responsibility. I don’t know about you, but last time I looked, most eleven-year-olds without a disability can be dropped off at Scouts/Taekwondo/Netball without a parent hovering constantly over them, so this decision by the AAT makes good sense to me. To have an ordinary life, eleven-year-old kids also need to start learning to do stuff without parents always right in their face! Unless Dad is a Scout leader, it is totally not cool to have him at Scouts supporting you each week!
Core Supports B
Decision: funding granted for seven days of respite in every six weeks.
The Tribunal contended that LNMT was unable to access regular out-of-home foster care respite. They outlined the COAG principles and determined that it was the NDIA's responsibility to fund her disability specific respite care to ensure that her foster Mother would be able to continue caring for her.
This is a big deal too, as out-of-home respite care has also taken an enormous hit in children's plans. Whether this ruling will be applied only to children in foster care is not clear. I suspect that will be a wait and see game.
Decision: KNMT’s cognitive assessment to be funded through her NDIS plan.
The Tribunal ruled that LNMT’s cognitive assessment will be funded through her NDIS plan. I *suspect* NDIA just dropped the ball on arguing this one, as they did not identify another system of support that could or should have paid for the assessment. These assessments are available through the health system, but in SA there is usually an 18-month waiting time. So, to be honest, I’m really not sure why NDIA didn’t argue this point and redirect to the health department.
There have been some serious bombshells dropped here that deeply challenge how the NDIS is building and approving plans for children. If I were the parent of a kid around LNMT’s age right now, I’d be highlighting and laminating a copy of this ruling, and bringing it along to my next planning meeting.
This case will force the NDIS to redefine what it considers reasonable and necessary, especially for plans for children. Every Tribunal ruling adds depth to our knowledge and understanding of how the NDIA Act should be interpreted. If you are a provider and have not read EVERY SINGLE AAT RULING, you are doing your clients a grave disservice. So get on it!
Sam Paior runs a fabulous independent Support Coordination business in SA, The Growing Space. Their Facebook page includes a stacks of great NDIS info like this, designed to help families demystify this disability maze. If you're looking for a blog that manages to give you a cathartic release for NDIS stress and at the same time make you feel optimistic about its future, Sam's blog is the place to be.