NDIS funding for supports not actually offered by 'mainstream' health services: Burchell and NDIA

Key points

•  In Burchell and NDIA [2019] AATA 1256 [opens in new window] the Tribunal chose not to follow previous Tribunal decisions on the issue of whether a support which would be appropriately provided by the health system, but which is in fact not provided, was a reasonable support for the purposes of the NDIS.
• The Tribunal decided that it was not the case that the NDIS would never provide a health-related support which the health authorities did not fund.
• This case has important consequences for how the NDIS fits in with mainstream health services.

Facts

Colin Burchell is a 34 year old who has profound physical and mental disabilities, including dysphagia (difficulty swallowing). Previously his disability support was provided by the NSW Department of Ageing, Disability and Home Care. The NSW funding ceased in 2018 (presumably as part of the transition to the NDIS). 

Colin's dysphagia means that it is very difficult for him to eat and drink. Colin requires thickened fluids, which allow him to hydrate safely. He also requires food supplements in order to maintain his weight. 

Colin's dietician prepared an eating plan and it was submitted to the NDIA as part of an application for support under the NDIS. The NDIA asked the dietician to provide a less expensive option. The dietician submitted a less expensive option, but the NDIA rejected both options and refused to provide funding, saying that it was not satisfied that the support was most appropriately funded or provided through the NDIS, and that it was not more appropriately provided by the health system - see s 34(1)(f) of the NDIS Act [opens in new window]. The problem was that the health system did not actually fund this support for Colin. Colin's family had to use cheaper subsitutes for the thickened fluids and food supplements, which led to health problems. Colin sought review of the NDIA's decision in the Tribunal.

The Decision

The NDIA relied on a series of previous decisions of the Tribunal, including Fear by his mother Vanda Fear and NDIA [2015] AATA 706 [opens in new window]. In those decisions, the Tribunal referred to a 2011 report of the Productivity Commission [opens in new window]. The Report's recommendations formed part of the basis for the creation of the NDIS. The Productivity Commission said in effect that the NDIS should not be responsible for funding shortfalls in the provision of mainstream services (such as the public health and education systems) to people with disability. That part of the Report was previously relied on by the Tribunal in Fear and other cases to support the conclusion that if a support was more appropriately provided by e.g. the mainstream public health system, then it would not be a reasonable and necessary support and would not be funded by the NDIS. It did not matter whether or not the person was in fact able to access the support via the public health system.

Deputy President Rayment took a different view and did not follow those cases. He made a number of key points about interpreting the NDIS Act:

•  The Act should be interpreted first by reference to the text of the Act itself. 
•  It was not necessarily the intention of Parliament to enact all of the Productivity Commission's Report into the NDIS.
•  The Report should not be read as saying that the NDIS will never fund a health-related support that the health authorities do not fund, even if it is otherwise reasonable.

The Deputy President also referred to a document published by COAG called “Principles to DeterminetheResponsibilities of the NDIS and Other Service Systems” [opens in new window]. This document sets out principles for how the NDIS interacts with mainstream services, including health and education. Importantly, the Deputy President stated that the Tribunal could not have regard to this document in interpreting the NDIS Act, because it was created after the Act.

The Tribunal set aside the NDIA's decision and directed the NDIA that the eating plan was a reasonable and necessary support.

Discussion

The decision is important because of the Deputy President's rejection of cases such as Fear, which relied on the Productivity Commission's report to effectively conclude that shortcomings in the provision of mainstream health services was not the NDIS's problem. This decision is much more positive for NDIS participants, who hopefully will be less likely to be caught between the NDIA and mainstream health and education services pointing the finger at each other about who has to provide a support. Given that the NDIS is largely funded by the Commonwealth, while education and health systems are largely funded by the States, it is unsurprising that these situations happen. 

It will be interesting to see what this new understanding of reasonable and necessary supports will mean. For example, will the Tribunal take into account the fact that a person lives in a rural or remote place in deciding whether the NDIS should fund a health-related support that the health authorities do not fund? How will this impact on reasonable adjustments for people with disability in schools (which are dealt with through the education system and not the NDIS)? This decision has the potential to help close the gaps that exist in the interface between the NDIS and these systems.

Given that the Deputy President decided not to follow previous decisions of the Tribunal, it would not surprise me if this case will make its way up to the Federal Court, so that it can decide the issue and give guidance to the Tribunal.