NATIONAL DISABILITY INSURANCE AGENCY v WRMF
12 May 2020
This is an appeal of the case that we first wrote about on our blog in July 2019.
Mostly supported direct from the act and therefore immediately obvious to lawyers and lay people alike:
S31 NDIA Act
Objectives of a Participant’s Plan Should:
- be directed by the participant
- be underpinned by the right of the participant to exercise control over his or her own life’
- advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspiration
- maximise the choice and independence of the participant’
- facilitate tailored and flexible responses to the individual goals and needs of the participant’
In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
have regard to the participant’s statement of goals and aspirations; and
have regard to relevant assessments conducted in relation to the participant; and
be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
have regard to the operation and effectiveness of any previous plans of the participant.
All of above are excellent responses that should be used in forming an argument or outline of why a support is reasonable and necessary.
Federal Court Sees No Reason Why Sexual Activity and Sexual Relationships are Not Included in Activities in s 24 (1) (c)
Basically, the Australian community can choose to participate in consensual sexual activity or relationships as often or as little as they want, an NDIS participant is part of the Australian Community and enjoys the same right.
When is a Support Reasonable and Necessary
Whether, in a given case, the requested support is a ‘reasonable and necessary support’ will in our opinion generally be a question of fact, on the evidence before the decision-maker. Subject to matters such as rationality and legal unreasonableness, there may be an area of decisional freedom in the conclusion reached by a decision-maker about whether a support is properly characterised as a ‘reasonable and necessary support’. The phrase has a qualitative aspect.
There is no definition of ‘reasonable and necessary supports’, although the phrase is used throughout the legislative scheme. It is necessary to say a little more about s 3 (the objects section) and s 4 (the ‘principles’ section).
Participant is a Deliberate Term – The Person with Disabilities Participates in the Scheme
Nevertheless, there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies – by reference to the context, objects and guiding principles of the Act and the facts of the case – the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person’s impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate. It is not accidental, in our opinion, that Parliament has chosen the term ‘participant’ to describe individuals who will receive funded support: the choice of that term reinforces, as we have sought to explain, that the driving objective of this Act is the holistic, improved and increased participation by persons with disability in the life of their communities, and in life itself. And, as we have explained, choosing to engage in lawful, consensual sexual activity (or choosing not to) is an ordinary part of living in such a community, and of living a full and independent life.
For a Type of Support to be Excluded it Needs to be in the Rules
It was common ground in this case that the kind of support which the respondent sought to have funded had not been excluded under the Rules. Such an exclusion would require the agreement of the Commonwealth and each host jurisdiction (that is the States and territories): see s 209(4)
Financial Sustainability Alone is Not Sufficient to Exclude a Support
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
“Reasonable and Neccessary” is Unlikely to be Definable, but May have Outer Limits
We do not consider it is appropriate on this appeal for the Court to express any opinions about the content or limits of the phrase ‘reasonable and necessary supports’ at some level of general principle, assuming that could be done, which we consider is unlikely. As we have noted, there may be circumstances where the outer limits of the meaning of the phrase need to be considered and determined. Had the Agency pressed its case that the claimed support could never be a reasonable and necessary support within the meaning of the Act, the question of outer limits may have arisen. The Agency did not press that argument. Nor did it impugn the Tribunal’s reasons by reference to legal unreasonableness or irrationality in respect of its fact finding about the claimed support. Further, the Agency’s supplementary submissions pay insufficient regard to the fact that the statutory language is that of a composite phrase.
If something about the disabled person means that he or she is not able to be included in the community as a fully participating citizen, and a reasonable and necessary support will avoid that result, it will be appropriate for it to be provided.