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NDIS: Federal Court appeals – Registered nurse care.


With thanks to Belinda Epstein for drawing attention to this Federal Court appeal: National Disability Insurance Agency v KKTB, by her litigation representative CVY22 [2022] FCAFC 181 (on JADE).

The appeal (brought by the Agency) arise from three AAT decisions in relation to  reasonable and necessary supports for individuals with severe to profound disabilities and in particular whether support was required from registered nurses as opposed to disability support workers.

Given the Federal Court in such matters is required to consider only legal issues, the focus was on whether the Tribunal findings were supported by or rationally open on evidence, whether there was a failure to consider submissions and whether there was a denial of procedural fairness. (See [62]).

The three appeals were dismissed (per Mortimer and Abraham JJ; Thawley J dissenting).

The AAT had delivered written reasons in relation to XZJY on 15 December 2021, accompanied by oral reasons in relation to KKTB and YHPS. The Tribunal then delivered written reasons in relation to KKTB and YHPS on 9 February 2022 and 14 February 2022, respectively. In each decision, the Tribunal set aside the internal review decisions, and in their place decided that the Agency was to approve funding for the level of registered nursing support that had been sought by each of the review applicants.

The Court said at [133] – [134]:

There is nothing in the text, context or purpose of the legislative scheme, nor in its use of the phrase “reasonable and necessary supports”, which requires a prescriptive approach to be taken by decision-makers to the description of what are the supports which should be funded for a participant. Given that these are individualised decisions, concerning people with a wide range of impairments in nature, severity and complexity, how a “support” is to be specified in a participant’s plan will also be individualised.

In the present reviews, it was as clear as it could be from the terms of the internal review decision, which framed the issues before the Tribunal, that what the Tribunal needed to resolve was how much care by a registered nurse should be funded as a support for each participant. Accordingly, the Tribunal approached the question of whether around four hours of daily care by a registered nurse was a reasonable and necessary support for each review applicant with the objectives and s 17A firmly in mind. Its reasons emphasise the evidence before it about the quality of life each of the review applicants enjoyed with the present levels of care by registered nurses. That was a matter it was entitled to emphasise.

It was not the Tribunal’s task to prescribe in minute detail the kind of daily care each of the review applicants should receive, whether over the 12-month life of the plan or beyond that. Its task was to decide what should be entered in their respective participant plans in their “statement of participant supports” (to use the language of s 33(2)) and – relevantly to the only issue on the review – what amount of care by a registered nurse would be funded under the NDIS as a reasonable and necessary support. It performed this task.([136]).

[BillMaddensWordpress #2060]


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