Federal Court of Australia

National Disability Insurance Agency v KKTB, by her litigation representative CVY22 [2022] FCAFC 181

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the respondent’s costs of and incidental to the appeal, to be fixed by way of a single lump sum referable to the three proceedings before the Court on appeal, being proceedings NSD15/2022, NSD16/2022 and NSD17/2022.

3.    On or before 1 December 2022 the parties are to file with the Court any agreed orders as to lump sum costs.

4.    In default of agreement pursuant to order 3, the question of an appropriate single lump sum be referred to a Registrar for determination.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the respondent’s costs of and incidental to the appeal, to be fixed by way of a single lump sum referable to the three proceedings before the Court on appeal, being proceedings NSD15/2022, NSD16/2022 and NSD17/2022.

3.    On or before 1 December 2022 the parties are to file with the Court any agreed orders as to lump sum costs.

4.    In default of agreement pursuant to order 3, the question of an appropriate single lump sum be referred to a Registrar for determination.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the respondent’s costs of and incidental to the appeal, to be fixed by way of a single lump sum referable to the three proceedings before the Court on appeal, being proceedings NSD15/2022, NSD16/2022 and NSD17/2022.

3.    On or before 1 December 2022 the parties are to file with the Court any agreed orders as to lump sum costs.

4.    In default of agreement pursuant to order 3, the question of an appropriate single lump sum be referred to a Registrar for determination.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER AND ABRAHAM JJ:

1    The National Disability Insurance Agency brings three separate appeals from three decisions of the Administrative Appeals Tribunal. The appeals were heard together by the Full Court, and will be decided together. The three proceedings were also heard together by the Tribunal, with separate reasons made by the Tribunal in relation to each proceeding. There was a common sub-stratum of fact between the three reviews in the Tribunal, because of the living and care circumstances of each of the review applicants, who were being cared for in the same small regional residential facility, and because of the nature of the care required by each of the three review applicants due to their significant disabilities.

2    In each of the three Tribunal decisions, the Tribunal set aside an internal review decision, each of which was made in May 2020, and in substitution decided that the Agency fund the provision of support for the relevant review applicant by a registered nurse for a specified number of hours, seven days a week, from 15 October 2019: see KKTB v National Disability Insurance Agency [2021] AATA 5457 (KKTB reasons); XZJY v National Disability Insurance Agency [2021] AATA 5459 (XZJY reasons); YHPS v National Disability Insurance Agency [2021] AATA 5456 (YHPS reasons).

3    The names of each of the respondents were anonymised by way of pseudonyms given previously in the Tribunal reviews. On 19 August 2022, the Court made orders by consent, appointing litigation representatives for each respondent. Each litigation representative is a parent of the relevant respondent, and was in turn granted a pseudonym. In corresponding order, those pseudonyms are CVY22, CWD22, and CWF22. For ease of reference, these reasons will use the pseudonyms assigned to the review applicants in the Tribunal.

4    The Agency seeks orders that the decisions of the Tribunal be set aside, and that the matters be remitted for rehearing before the Tribunal, differently constituted. In turn, the respondents seek orders that the notices of appeal be dismissed with costs.

5    The appeals particularly concern the interpretation and application of the term “reasonable and necessary supports” in the National Disability Insurance Scheme Act 2013 (Cth). At a factual level, the common question in the three reviews before the Tribunal was whether care by a registered nurse, rather than by a disability support worker, for a certain period of time each day, was a “reasonable and necessary support” for each of the three review applicants, in their circumstances.

6    For the reasons set out below, each of the appeals should be dismissed.

Background

7    The background to the proceedings is not disputed. That background is set out in the reasons of the Tribunal, from which this summary is largely taken.

8    Each respondent is a participant in the National Disability Insurance Scheme, as governed by the NDIS Act. Each respondent is a person with severe to profound disabilities, and is significantly reliant on those who care for them:

(a)    KKTB was 28 years old at the time of the Tribunal’s decision. She was born in 1993 with complex disabilities and suffers from chronic health conditions. She was adopted in 1994, at the age of one year. KKTB is described in her NDIS participant plan as a person “with Down Syndrome and a condition called Holoprosencephaly”, who suffers from “a number of other complications including Diabetes Insipidus, Gastric Oesophageal Reflux Disorder, gouty arthritis and hypothyroidism”. KKTB’s holoprosencephaly, the participant plan indicates, “causes severe problems with how the skull and facial features develop”, which is the reason that KKTB has “a severe intellectual disability and need[s] help in all areas of [her] life”. This includes “full care and assistance with all personal care”, as well as “all daily activities”. KKTB’s participant plan indicates that she “is unable to stand, walk or move [herself] on the floor”, that she has “a lot of difficulty controlling movements in [her] hands”, and that she does not “use words to communicate”, though she vocalises and “makes sounds to let people know when [she is] happy or sad or trying to get their attention”.

(b)    XZJY was 40 years old at the time of the Tribunal’s decision. She was also born with complex permanent disabilities and suffers from chronic health conditions. XZJY’s NDIS participant plan indicates that she was born with Cornelia de Lange syndrome, which is “a genetic condition that has caused [her] face to have a particular shape, [her] eyebrow’s to be thick and [her] eyelids to be shaped the way they are”. As a result of her conditions, XZJY has “major growth delay, intellectual disability, limb defects and gastrointestinal problems”. Her participant plan indicates that she does not “use words, and [she] needs assistance with all daily activities”.

(c)    YHPS was 46 years old at the time of the Tribunal’s decision. He was born with Down syndrome and a club foot, the latter of which limits his mobility. He has also developed other chronic conditions, including severe loss of sight. YHPS’s NDIS participant plan indicates that his “disability means that [he] need[s] full care and assistance with all daily activities including meals, drinks, personal care, showering, dressing, communication, and moving around”.

9    If an even plainer appreciation were needed of the challenges each respondent faces in their daily lives, and the challenges faced by those who care for them, the evidence before the Tribunal also contained a series of photographs depicting the respondents engaged in some of their daily activities.

10    Each respondent resides in the same shared accommodation in New South Wales. It is a small facility, which can accommodate six people for permanent accommodation and six people for respite care. The facility is run by a charity that employs a part-time CEO who works two days a week and a financial manager who works two days a week. It also employs a full time care service manager, the most senior nursing position in the facility. It was not in dispute that each respondent requires care 24 hours per day, 7 days per week. As indicated, for example, in XZJY’s participant plan:

I have support 24 hours a day with both support workers and a Nurse involved in my care. I have a special relationship with my care staff; they know me well and I like where I live.

11    In October 2019, the Chief Executive Officer of the Agency approved new plans for each respondent, which included support by a registered nurse, but not at the level sought by each participant. In substance, the CEO decided the Agency would fund less support by a registered nurse, in favour of support being provided by a disability support worker. Underlying this was the Agency’s preference, at a policy level, for what is described in the evidence and the Tribunal’s reasons as a “Delegated Model of Care”, where disability support workers provide a much larger proportion of care under the supervision of registered nurses. It was not disputed that this is a model which would require less funding from the NDIS. Indeed, the evidence discloses that is part of the policy objective of the Agency, relying on those objectives of the NDIS Act that seek to have the NDIS administered in a cost-effective way.

12    In general terms, each of the three decisions by the CEO provided for funding for a clinical nurse at a higher number of hours per day for the first 3 months, and then a much lower number of hours for the remaining nine months, the rationale being that in the first three months the registered nurse would train disability support workers to provide the care needed.

13    The review applicants sought internal review of those decisions. They sought additional hours of registered nurse support per day, being a total of:

(a)    7.03 hours per day for KKTB;

(b)    6 hours per day for XZJY; and

(c)    4.08 hours per day for YHPS.

14    The subsequent internal review decisions made by delegates of the CEO did not approve each respondent’s requested level of registered nursing supports. The internal reviews determined that the Agency would fund:

(a)    for KKTB, the delivery of health supports by a clinical nurse to the sum of 638 hours over 3 months (7 hours per day) and then 24 hours in total over the following 9 months;

(b)    for XZJY, the delivery of health supports by a clinical nurse to the sum of 547 hours over 3 months (6 hours per day) and then 24 hours in total over the following 9 months; and

(c)    for YHPS, the delivery of health supports by a clinical nurse to the sum of 365 hours over 3 months (4.06 hours per day) and then 20 hours in total over the following 9 months.

15     The basis for these decisions was that the requested supports did not satisfy the criteria in s 34(1)(c) of the NDIS Act. Relevantly, s 34 states as follows:

34    Reasonable and necessary supports

(1)    For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

(a)    the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;

(b)    the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;

(c)    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;

(d)    the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

(e)    the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

(f)    the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

(i)    as part of a universal service obligation; or

(ii)    in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

(2)    The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).

(Emphasis added.)

16    Sub-section 33(2), which provides for the ‘statement of participant supports’, states as follows:

(2)    A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:

(a)      the general supports (if any) that will be provided to, or in relation to, the participant; and

(b)    the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and

(c)    the date by which, or the circumstances in which, the Agency must reassess the plan under Division 4; and

(d)    the management of the funding for supports under the plan (see also Division 3); and

(e)    the management of other aspects of the plan.

(Original emphasis.)    

17    Sub-section 33(5) provides:

(5)    In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:

(a)     have regard to the participant’s statement of goals and aspirations; and

(b)    have regard to relevant assessments conducted in relation to the participant; and

(c)    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

(d)    apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and

(e)    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

(f)    have regard to the operation and effectiveness of any previous plans of the participant.

18    Summaries of the operation of the NDIS Act have also been set out in McGarrigle v National Disability Insurance Agency [2017] FCA 308; 252 FCR 121 at [22]–[44], and Mulligan v National Disability Insurance Agency [2015] FCA 544; 233 FCR 201 at [11]-[34]. We rely on those summaries here.

19    Relevantly to the present appeals, s 35 and s 209 of the NDIS Act provide for the making of rules regarding the funding or provision of reasonable and necessary, and general, supports. At r 5, the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) provide that:

General criteria for supports

5.1     A support will not be provided or funded under the NDIS if:

(a)     it is likely to cause harm to the participant or pose a risk to others; or

(b)     it is not related to the participant’s disability; or

(c)     it duplicates other supports delivered under alternative funding through the NDIS; or

(d)     it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.

5.2     The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):

(a)     additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;

(b)     costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.

Supports that will not be funded or provided

5.3     The following supports will not be provided or funded under the NDIS:

(a)     a support the provision of which would be contrary to:

(i)     a law of the Commonwealth; or

(ii)     a law of the State or Territory in which the support would be provided;

(b)     a support that consists of income replacement.

(Original emphasis.)

20    Part 3 provides for matters to be considered in assessing proposed supports. Under Pt 3, r 3.1 relates to the determination of whether supports represent value for money. Rule 3.1 states:

Value for money

3.1     In deciding whether 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, the CEO is to consider the following matters:

(a)     whether there are comparable supports which would achieve the same outcome at a substantially lower cost;

(b)     whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;

(c)     whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);

(d)     for supports that involve the provision of equipment or modifications:

(i)     the comparative cost of purchasing or leasing the equipment or modifications; and

(ii)     whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;

(e)     whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;

(f)     whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).

(Original emphasis.)

21    Rule 7, contained in Sch 1, sets out a number of considerations relevant to the determination of whether supports are most appropriately funded through the NDIS. Rules 7.1-7.3 state as follows:

7.1     The Act limits the supports that can be provided or funded under the NDIS to supports that are not more appropriately funded or provided through other service systems, for example as part of a universal services obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

7.2     The considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by the NDIS or another service system.

7.3     For the avoidance of doubt, while this Schedule sets out considerations relevant to whether a support should be considered to be more appropriately provided or funded through another service system, it does not purport to impose any obligations on another service system to fund or provide particular supports.

Note:     The considerations set out in this Schedule are derived from the Principles to determine the responsibilities of the NDIS and other service systems, agreed to by the Council of Australian Governments, and dated Friday 19 April 2013. That document also includes principles relating to aged care. They are not relevant to this Schedule, but are given effect to in section 19 of the Act, and the National Disability Insurance Scheme (Becoming a Participant) Rules 2013.

(Original emphasis.)

The Tribunal’s decisions

22    The Tribunal 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.

23    The XZJY reasons were the primary reasons, with the KKTB reasons and YHPS reasons significantly reproducing relevant parts of the XZJY reasons. In the XZJY reasons at [10] the Tribunal explained:

[XZJY’s] application was heard together with applications by two other residents of the shared accommodation who were also seeking additional support by a Registered Nurse. While many of the applicable principles are the same, the needs of the Applicants vary. For this reason, I intend to publish separate reasons for my decision in each application, although significant parts of these reasons will be reproduced in the other applications.

24    Unless otherwise specified, references in these reasons to the Tribunal’s reasons are references to the Tribunal’s XZJY reasons.

25    Significantly for the reviews, and for the appeals in our opinion, at [2], the Tribunal also made the following observations:

The Agency argued very strongly that I should find that it is appropriate that the care [XZJY] needs should be delivered in a manner described as the Delegated Model of Care. However, in considering the care which should be provided to [XZJY], it is important to keep in mind that the real issue for consideration is what is the reasonable and necessary support to be provided to [XZJY] as an individual, not which one of two competing so-called, models of care is appropriate. My decision in this matter relates only to the needs of [XZJY] taking into account her disabilities, her health conditions and the environment in which she lives. It should not be read as an endorsement of a particular model of care in other circumstances.

(Original emphasis.)

26    That observation is both correct and important. Each decision under Pt 2 of Ch 3 of the NDIS Act to approve a statement of participant supports is a decision about an individual, and their needs. While that decision may take into account matters which are not personal to the individual, including where the NDIS Act requires this to occur, the legislative scheme demands a focus that is very much on the support needs of the individual participant.

27    After setting out the background to the Tribunal’s decision, in Pt 1 of its reasons the Tribunal outlined the legislative scheme, and what it considered to be the relevant principles to be applied. At [13]-[14], quoting Milburn v National Disability Insurance Agency [2018] AATA 4928 at [11], the Tribunal stated as follows:

The Chief Executive Officer of the Agency is required to facilitate the preparation of a participant’s plan. The plan must include:

•    the participant’s statement of goals and aspirations; and

•    a statement of participant supports prepared with the participant and approved by the Chief Executive Officer.

It is to be noted that the statement of goals and aspirations is a statement by the participant and does not require the approval of the Chief Executive Officer. The statement of participant supports must specify the reasonable and necessary supports (if any) that will be funded under the Scheme.

The provisions of the Act giving the participant alone the right to state his or her goals and aspirations and at the same time requiring the Chief Executive Officer to work with the participant to prepare the statement of supports, and then to approve those supports which will be funded, “strikes a balance between two of the Act’s objects:

(a)    the need to enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports, and

(b)    the facilitation of a nationally consistent approach to the access to, and planning and funding of, supports for people with disability.”

(Original emphasis, footnotes omitted.)

28    In our opinion, this observation by the Tribunal is also correct. The legislative scheme in Pt 2 of Ch 3 is not solely concerned with the external imposition of a funding decision by the CEO, or their delegate. Consistently with the objectives of the NDIS Act, the scheme affords a voice to the participant and their family, carers or other persons who are significant in their life. That voice is intended by the scheme to be heard, and considered, by the CEO or their delegate in the approval of the statement of supports.

29    The Tribunal’s reasons next set out the objects of the NDIS Act, the general principles guiding action under the Act, the functions of the Agency specified in s 118 of the NDIS Act, and the principles relating to the participation of people with disability.

30    Specifically in the context of statements of supports, the Tribunal set out s 33(5) and s 34(1), which are quoted, respectively, at [17] and [15], above, and the Supports Rules, relevant extracts from which are set out at [19]-[21], above.

31    The Tribunal also cited the following passage from McGarrigle at [85]:

Therefore, what is entered in a plan as a support becomes a determinative factor in the administration of the scheme. As the respondent submitted, by s 33(3), supports may be generally described or may be specifically identified. Either way, the function being performed on review by the Tribunal is to approve, vary or modify the supports as set out in a participant plan. In performing that function, the Tribunal must have regard to the matters set out in s 33(5), and form its satisfaction in accordance with s 34.

32    In Pt 2 of its reasons, entitled “Evidence and Findings of Fact”, the Tribunal set out its consideration of the evidence, and its findings in relation to that evidence.

33    In each proceeding, the Tribunal considered the evidence of the following witnesses:

(a)    “Ms M”, who is a registered nurse and who at the time of the Tribunal’s decision was care service manager at the shared accommodation. Ms M provided statements dated 1 December 2020 and 3 March 2021 and gave evidence at the hearing before the Tribunal;

(b)    “Ms P”, who at the time of the Tribunal’s decision was a qualified disability support worker, and who had worked at the shared accommodation on a full-time basis since 2014 as a disability support worker and team leader. Ms P provided a statement dated 1 March 2021, and gave evidence at the hearing before the Tribunal;

(c)    Associate Professor Nathan Wilson, who provided two reports dated 5 March 2021 and 2 June 2021, and who gave evidence at the hearing before the Tribunal. At [72] of the XZJY reasons, the Tribunal described Associate Professor Wilson’s professional qualifications:

Dip Health Sc. (Nursing); B.Soc.Sc. (Habilitation); M.Sc (Disability Studies); PhD (intellectual disability); G.Cert.Sc. (Applied statistics).

(Original emphasis.)

(d)    Emeritus Professor Leanne Dowse, who provided a report dated 9 April 2021 and who gave evidence at the hearing before the Tribunal. At [85], the Tribunal described Emeritus Professor Dowse as the Professor of Disability Studies at the University of New South Wales from 2017 to 2020, and at the same time was a director of the Disability Innovation Institute at the same University; and

(e)    Ms Barbara Merran, a registered nurse and director since 1984 of Southern Cross Healthcare Pty Limited. Southern Cross was described by the Tribunal at [88] as a service provider that “arranges short and long-term care at all levels from domestic assistance to highly skilled complex or clinical service situations”. Ms Merran provided a report dated 20 April 2021, and gave evidence at the hearing before the Tribunal.

34    Ms Merran and Emeritus Professor Dowse were called by the Agency. Ms M, Ms P and Associate Professor Wilson were called by the review applicants.

35    In addition, the Tribunal heard the evidence from family members of the review applicants:

(a)    in relation to KKTB:

(i)    CVY22, the father of KKTB, provided a statement dated 3 March 2021 and gave evidence at the hearing before the Tribunal;

(b)    in relation to XZJY:

(i)    CWD22, the mother of XZJY, provided a statement dated 27 February 2021 and gave evidence at the hearing before the Tribunal; and

(ii)    the father of XZJY also provided a statement dated 27 February 2021 and gave evidence at the hearing before the Tribunal; and

(c)    in relation to YHPS:

(i)    CWF22, the mother of YHPS, provided a statement dated 25 February 2021 and gave evidence at the hearing before the Tribunal.

36    Under the heading “Assessment of the Evidence”, the Tribunal set out its findings in relation to the evidence of the witnesses. The Tribunal’s findings focused on the evidence of Ms Merran, particularly as compared with the evidence of Emeritus Professor Dowse and Associate Professor Wilson. That was, in our opinion, a comparison the parties invited the Tribunal to adopt in the way they presented their cases on the reviews.

37    Of some importance to the resolution of the grounds of appeal however, the Tribunal also made it clear that it took into account, and placed some weight on, the evidence of the parent or parents of each of the review applicants and the evidence of Ms M and Ms P, “all of whom have had years of experience in caring for [the review applicants]”: at [109].

38    At [104], the Tribunal described the evidence of Emeritus Professor Dowse as “carefully considered”, and at [106] described Associate Professor Wilson as “considered and measured”. At [108], the Tribunal stated:

I am satisfied that both Emeritus Professor Dowse and Associate Professor Wilson gave their respective evidence objectively and without personal interest in the outcome of this application for review.

39    In contrast, the Tribunal found the evidence of Ms Merran to be less persuasive of the issues for determination on its review. At [100]-[103], the Tribunal stated:

Ms Merran gave extensive evidence of the delegated model of care operated by Southern Cross Healthcare Pty Limited. For the reasons which follow I have placed limited weight on her evidence. Where her evidence or opinions conflict with that of Associate Professor Wilson and/or Emeritus Professor Dowse, I prefer the evidence or opinions of the latter witnesses.

Ms Merran gave her evidence in a subjective manner and was intent on promoting the model of care she introduced to Southern Cross Healthcare Pty Limited and which has been operated by it since 1984. In her opinion “Registered Nurse Delegation is the correct and only successful method of service delivery for people with disabilities living in the community in Australia.” Ms Merran has a personal interest in the promotion of the delegated model of care by reason of her being a director and shareholder of the company.

Having listened to Ms Merran give evidence, I am satisfied that her real concern relates to the distribution of NDIS funds between providers of services rather than the appropriate support for [XZJY]. She said that:

I don’t see why one house [referring to [XZJY]’s shared accommodation] in Australia, or two houses or however many, get all this extra funding that nobody else gets and we are all managing perfectly well. And it’s about equality, I think their [[XZJY]’s and two other residents’] needs are very important ………. but I don’t think they’re any more important than anybody else with a profound disability living in shared support and, you know, I worry that when we’ve got something that works and that I would presume 95 per cent of providers are managing to do under a model that has been developed for this scheme, why is this one different and I haven’t found the difference.

Ms Merran was dismissive of the manner in which the care of Registered Nurses is being provided to [XZJY], describing it as “old fashioned, cumbersome and expensive without true justification or accurate evidence of better outcomes for the Participant. ………… Registered Nurses often overcomplicate matters and have a hierarchical and clinical approach to service delivery that is not normalising and at times condescending. As I am a Registered Nurse myself, I am certain of that my opinion is correct”.

(Original emphasis, footnotes omitted, additions to quotations in original.)

40    Under the heading “Reasoning”, the Tribunal considered and applied s 33(5) and s 34(1) of the NDIS Act, as well as considering the need to ensure the financial sustainability of the NDIS and whether the requested supports were reasonable and necessary. In doing so, the Tribunal also considered the Supports Rules. The Agency did not dispute that the Tribunal in fact considered these matters, although some of its grounds of appeal impugned aspects of the Tribunal’s reasoning.

41    The Tribunal commenced by considering the goals and aspirations of the respondents, as required by s 33(5)(a). In the case of XZJY, for example, those goals and aspirations relevantly included that XZJY would “maintain optimal health and wellbeing”: at [110]. See also KKTB reasons at [103]; YHPS reasons at [107].

42    By reference to s 33(5)(b) and “relevant assessments” before it, the Tribunal made explicit at numerous instances that it preferred the assessments of Emeritus Professor Dowse and Associate Professor Wilson over that of Ms Merran. The Tribunal made reference, for example, to the “cursory nature of Ms Merran’s assessment” (at [113]), and found that (at [115]; KKTB reasons at [109]; YHPS reasons at [115]):

Ms Merran was dogmatic when expressing her opinions. In contrast, Associate Professor Wilson provided more balanced and considered views.

43    We note that the term “relevant assessments” is not defined in the NDIS Act. The use of the term “assessments” suggests some kind of evaluation capable of being relevant to the question of what are the reasonable and necessary supports appropriate for a particular participant. There is no reason to limit the term to material which might, in a judicial setting, be considered appropriate for the subject of an expert report. Of course, the qualifications and expertise of the author of any assessment may be relevant to the weight the Tribunal gives an assessment, amongst other factors such as those the Tribunal identified about the approach of each witness, as well as matters such as how often the author saw the participant, how well they know them, and the circumstances in which the assessment was undertaken. This list is not intended to be exhaustive, only illustrative.

44    The Tribunal then turned to consideration of the requirements of s 34, as required by s 33(5)(c). It did so in a logical and sequential manner. It is to be recalled that s 34 requires the CEO, their delegate or the Tribunal standing in their shoes, to be positively satisfied of all of the matters in sub-s (1).

45    First, the Tribunal decided that the care of a registered nurse would assist in maintaining the review applicants’ “optimal health and wellbeing”, which in turn would enable the review applicants to maintain their participation in social and recreational activities, maintain contact with their families, and continue to live in their current home (at [122]). The Tribunal based this conclusion on the evidence of Associate Professor Wilson, XZJY’s mother, Ms M and Ms P.

46    Second, the Tribunal rejected the Agency’s submission that there would be “no additional benefit” to certain care tasks being undertaken by a registered nurse, instead deciding that support by a registered nurse would assist the review applicants to continue to engage, to the greatest extent possible, in social activities: at [124]. In other words, the Tribunal saw “benefit” to the review applicants in a much wider way than the Agency’s submissions might have suggested, and that was a permissible approach for the Tribunal to take.

47    Third, the Tribunal rejected the Agency’s submission that “[t]here is no benefit, and no value for money, in allocating additional funding”. The Tribunal’s findings here were addressing the precondition in s 34(1)(c), the “value for money” condition, upon which the Agency placed great emphasis in its submissions to the Tribunal. This was, as we have explained, also the ground on which the three review applicants had their proposals for reasonable and necessary supports rejected on internal review.

48    The Tribunal reiterated that “[a]ssessing whether a support is value for money involves far more than determining the cheapest option” (at [128]). It continued:

It involves assessing the quality and cost of the alternative supports and the benefits for [XZJY] that each is likely to achieve. As the Federal Court said in McGarrigle, paragraph 34(1)(c) is a factor in determining the reasonableness of the support requested.

49    The Tribunal rejected the Agency’s submissions that the ‘delegation of care model’ was an appropriate model of care to be applied in the circumstances of participants such as XZJY, and therefore to all three review applicants. That model, which was proffered as an appropriate model by the Agency relying on Ms Merran’s evidence, was described in the evidence of Emeritus Professor Dowse as follows (quoted at [84]):

Community/Delegation of Care is not a term widely used in the field but in this report I take it to signal the delegation of care from nursing staff to non-nursing personnel (including Disability Support Workers) who are generally identified as operating within the community (as opposed to in specific healthcare settings such as hospitals).

50    The Tribunal also rejected the Agency’s submission that many of the care tasks then being provided to the review applicants by registered nurses could instead be provided by disability support workers. For example, the Tribunal found (at [130]):

The support which has been provided to [XZJY] at her shared accommodation by Registered Nurses since 2016 has been excellent and contributed to her being able to maintain the highest level of wellbeing and social participation which her disabilities and health conditions allow.

51    The Tribunal rejected several other submissions made by the Agency, some based on Ms Merran’s opinions, which sought to contend funding a registered nurse as required was, in effect, unnecessary (at [132]-[134]):

I accept the evidence of [XZJY]’s parents that [XZJY] is happy living in the shared accommodation and that she “receives excellent and prompt care from the registered nurses”. [XZJY]’s health issues have been well managed.

Relying upon the evidence of Ms Merran, the Agency argued that [XZJY] is not sick and therefore does not require the level of nursing support she seeks. This is a matter of semantics. There is no dispute that, in addition to her disabilities, [XZJY] suffers several chronic health conditions for which she continues to receive treatment. I am satisfied that [XZJY] does not enjoy good health.

I do not accept the contention that [XZJY] is “no more vulnerable to poor health from anyone in the community.” Clearly, her chronic conditions and low weight make her more susceptible to complications affecting her well-being than a person enjoying good health without [XZJY]’s disabilities, which include the inability to clearly communicate her symptoms to others.

(Original emphasis, footnotes omitted.)

52    The Tribunal highlighted the importance of ensuring continuity in the care of the review applicants. In this regard, the Tribunal noted that the evidence of Ms P was that, on average, disability support workers at the shared accommodation remained in employment for only approximately 6.5 months before moving on. The Tribunal noted that, in light of this, ongoing training costs would be substantial. In relation to XZJY, the Tribunal was not satisfied that the quality of care which would be provided by a disability support worker would meet XZJY’s needs, and that in any event the cost of the proposed method for delivering care was unknown: at [135]. It concluded (at [139]-[140]):

For the reasons stated above I do not consider that the support under the delegation of care model is comparable to that presently being provided to [XZJY]. The proposed performance by a Disability Support Worker of many of the tasks presently undertaken by a Registered Nurse will not be of the same standard. Based on the evidence of Associate Professor Wilson and Emeritus Professor Dowse I am satisfied that Disability Support Workers are not qualified to provide the day-to-day nursing care required by [XZJY]. The outcome for [XZJY], particularly in the maintenance of her optimal health and well-being, would not be the same as she presently enjoys.

I am not satisfied that the implementation of the delegation of care model for [XZJY] would result in “a substantially lower cost” [emphasis added] than the care presently being provided. The Agency proposes that a Registered Nurse be funded to train the Disability Support Workers presently working at [XZJY]’s shared accommodation. However, there is no provision for the cost of the ongoing training of Disability Support Workers in an industry in which the turnover of staff is high.

(Original emphasis, addition to text in original.)

53    Fourth, under s 34(1)(d), the Tribunal was satisfied that the support of a registered nurse in the way proposed by XZJY “will be, or is likely to be, effective and beneficial” for XZJY, “having regarding to current good practice”. The Tribunal again rejected the submission of the Agency that the delegation of care model would be effective for the support of persons in circumstances like those of the review applicants. It found:

There is a lack of evidence to support the effectiveness of the delivery of support to those living in accommodation similar to [XZJY]’s shared accommodation. Ms Merran’s evidence relates to the delivery of care in a large organisation with a large staff.

54    The matters in s 34(1)(e) and (f) were not put in issue before the Tribunal by the Agency.

55    On the s 34(1) matters, the Tribunal concluded (at [153]):

The lived experience of [XZJY] and her parents is evidence of the success of the care of Registered Nurses (working in conjunction with supervised Disability Support Workers) in maintaining the optimal health and well-being of [XZJY] over her 40 years.

56    The Tribunal then turned to wider financial considerations. It did so by reference to the objective in s 3(3) of the NDIS Act, and also the terms of s 4(17), which provides:

It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to the need to ensure the financial sustainability of the National Disability Insurance Scheme.

57    Consistently with the approach it took on the three reviews in relation to s 34(1)(c), this was a matter emphasised by the Agency in its submissions. At [156], the Tribunal set out the Agency’s submissions:

In written submissions, Counsel for the Agency contended:

76. Ms Merran was frank: [the shared accommodation’s] model is “not sustainable”.

77. The most recent Scheme quarterly report is in evidence as R18. It contains a number of relevant statements.

At TB 442 it states:

SIL pricing reform

The SIL quoting and negotiation process used previously has been replaced with set price limits for SIL supports. Providers are now required to develop a roster of care using the NDIA’s current price limits for activities of daily living and submit this to the NDIA for consideration. There is increased rigour around determining the suitability of rosters of care for participants at first plan and for subsequent plan reviews. Importantly, the new process will ensure input from participants, so participants have more control over their plan budget.

78. At TB 445, in the “financial sustainability” section, it sets out year to date figures, showing

$16.685 billion of funding for 449,998 participants. That is an average of $37,078 per participant.

79. At TB 446, it states:

There have been high levels of inflation (well above wage increases) within the Scheme since its inception. This is evident for participants in SIL, noting that the support costs for participants in SIL are a material component of Scheme cost. Since April 2018, the average payments per SIL participant have increased by 17 per cent annually whilst wages have increased by approximately two per cent annually on average over the same period.

80. At TB 450, it states:

In order to address administrative delays, lack of transparency and Scheme sustainability, the SIL quoting and negotiation process used previously was replaced with price limits for SIL supports in 2020. Providers are now required to develop a roster of care using the NDIA’s set price limits for activities of daily living and submit this to the NDIA for consideration. There is a focus around assessing the suitability of rosters of care for participants at first plan and for subsequent plan reviews.

81. Finally, table P.1 shows that the 24,928 out of 449,998 (5.5%) Scheme participants with SIL have committed supports for SIL of $8.7b vs $31.6b total; that is, 28% of committed supports.

82. The Tribunal should be very cautious in going above the hours estimated by the only expert who has experience in running models of care.

83. Finally, A/Prof Wilson undertook a “thumbnail” calculation in his reply. Using the correct rates, the difference for each participant between his and Ms Merran’s numbers is $290.37 per day for [redacted], $170.58 for [XZJY] and $295.33 for [redacted], totalling $275,286.71 per year.

That is about 7.5 average plans; the difference between Ms Merran and A/Prof Wilson can fund about 7.5 average NDIS plans for other Scheme participants.

(Original emphasis, footnotes omitted, redactions and additions to text in original.)

58    In its reasons at [157]-[161], the Tribunal was critical of the Agency taking this approach to this aspect of its submissions on the review. It did not accept the Agency’s submissions, and decided that consideration of the financial sustainability of the NDIS did not alter its ultimate decision. The Tribunal found the Agency’s submission:

demonstrates a lack of regard for the objects and principles of the Act, including, but not limited to, the principles relating to respect for the worth and dignity of people with disability and the role of their families and carers.

It has been a regrettable aspect of the Agency’s contentions that it has been suggested on more than one occasion that to allow the support sought for [XZJY] would give her an unfair advantage over other participants in the Scheme.

Ms Merran, called by the Agency, articulated this approach clearly when she said that “I don’t see why one house [referring to [XZJY]’s shared accommodation] in Australia, or two houses or however many, get all this extra funding that nobody else gets and we are all managing perfectly well. And it’s about equality ……..”. This is not the issue I have to decide. The issue is whether the support sought by [XZJY] is reasonable and necessary, taking into account the many considerations required by the Act, the Rules and the Guidelines.

Equally, this matter is not about how many other participants could have their plans funded from the funding sought for [XZJY] …

Each of the three [review applicants] whose applications have been heard together are individuals and entitled to be respected as such.

(Original emphasis, footnotes omitted, additions to text in original.)

59    Separately from the requirements of s 33 and s 34 of the NDIS Act, and looking more generally at what were the reasonable and necessary supports that should be included in the plans of the three review applicants (and in these reasons XZJY in particular), the Tribunal considered guidelines issued by the Australian Community Industry Alliance, the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth), and the objects and guiding principles set out in s 3 and s 4 of the NDIS Act. It concluded (at [167]):

There is nothing in the guidelines which causes me to change the conclusion I have otherwise reached. In any event, a service provider should follow expert medical advice rather than the guidelines. The guidelines are not binding on the Tribunal.

60    The Tribunal therefore accepted the level of registered nurse care proposed by XZJY should form part of her participant plan, because it was a reasonable and necessary support. It concluded (at [172]-[173]):

The present delivery of care to [XZJY] takes place in small accommodation shared by five other permanent residents, at least two of whom have complex disabilities and health conditions. The accommodation is in regional New South Wales which does not have immediate access to the same level of specialist medical care as is available in metropolitan areas and large regional cities.

Further, for all her life [XZJY] has been cared for by a Registered Nurse. This level of care has proved to be successful in maintaining her optimal health and well-being and providing her with an environment in which she is happy. [XZJY]’s parents made the decision to place her in the full-time care of others based on the level of care being provided in the shared accommodation, in part funded by the Agency. It is both reasonable and necessary that this level of care be maintained to enable [XZJY] to continue to receive the same excellent care she has received to date.

61    The Tribunal made similar concluding findings for KKTB and YHPS.

Questions of law and grounds of appeal

62    In each of the notices of appeal, the questions of law arising from the Tribunal’s decisions are stated in identical terms:

1.     Whether the Tribunal denied the Applicant procedural fairness by refusing to accept and according limited weight to the evidence of its expert witness Ms Merran on grounds on which the Applicant had no opportunity to be heard.

2.     Whether the Tribunal failed to perform its statutory task by making findings as to the credit of Ms Merran which were not supported by, or rationally open upon, the evidence before it.

3.     Whether the Tribunal failed to perform its statutory task by:

a.     failing to consider submissions supported by probative material, that were worthy of consideration and seriously advanced; and/or

b.     failing to examine individually and by reference to specific evidence and material before it, the particular supports for which funding was sought by the Respondent.

63    The grounds stated in the notice of appeal were also relevantly identical. Using the notice of appeal for XZJY as an example:

1.    The Tribunal denied the Applicant procedural fairness by making findings on critical issues without providing the Applicant any opportunity to deal with or be heard on them:

a.    the Tribunal stated at [100] that, “[f]or the reasons which follow” it had placed limited weight on the evidence of Ms Merran, and preferred the evidence of Associate Professor Wilson and/or Emeritus Professor Dowse “[w]here her evidence or opinions conflict with” their evidence;

b.    the Tribunal held at [101] that Ms Merran “gave her evidence in a subjective manner and was intent on promoting the model of care operated by Southern Cross Healthcare Pty Limited”, and that she had “a personal interest in the promotion of the delegated model of care by reason of her being a director and shareholder of the company”. The Tribunal held at [108] that it was satisfied that “both Emeritus Professor Dowse and Associate Professor Wilson gave their respective evidence objectively and without personal interest in the outcome of this application for review”.

c.    That proposition that Ms Merran had a personal interest in the outcome of the application for review and in promotion of the delegated model of care, and was “intent on promoting the model of care operated by Southern Cross Healthcare Pty Limited”:

i.     was not advanced by the Respondent or the Tribunal in submissions or cross-examination, and was not an issue considered by the parties;

ii.     was not an obvious or natural evaluation of material before the Tribunal;

iii.     was not in the contemplation of the Applicant during the hearing as a basis on which the evidence of Ms Merran might not be accepted;

iv.     first emerged in the Tribunal’s reasons;

v.     was not a proposition on which the Applicant had an opportunity to be heard.

d.    the Tribunal held at [102] that it was “satisfied that” Ms Merran’s “real concern relates to the distribution of NDIS funds between providers of services rather than the appropriate support for [the Respondent]”. That proposition:

i.    was not advanced by the Respondent or the Tribunal in submissions or cross-examination, and was not an issue considered by the parties;

ii.    was not an obvious or natural evaluation of material before the Tribunal;

iii.    was not in the contemplation of the Applicant during the hearing as a basis on which the evidence of Ms Merran might not be accepted;

iv.    first emerged in the Tribunal’s reasons;

v.    was not a proposition on which the Applicant had an opportunity to be heard.

2.    Further, or in the alternative to ground 1, the Tribunal failed to perform its statutory task, in that:

a.    the findings at [101] and [102] were not supported by, or rationally open upon, the evidence before it:

i.    it was not open on the evidence for the Tribunal to conclude that Ms Merran had a personal interest in the outcome of the application for review;

ii.    it was not open on the evidence for the Tribunal to conclude that Ms Merran’s “real concern relates to the distribution of NDIS funds between providers of services rather than the appropriate support for [the Respondent]”; and/or b. the Tribunal decided the application on a basis (namely, the credit of Ms Merran) that was not put to it to decide.

3.    The Tribunal failed to perform its statutory task in that:

a.    it did not consider submissions as to the weight of evidence given by Associate Professor Wilson as to the specific supports in issue, and as to his credit generally, which submissions were supported by probative material, worthy of consideration and seriously advanced;

b.    alternatively, if and to the extent that the Tribunal did consider those submissions, the Tribunal failed to examine individually, and by reference to the specific evidence and material before it, the supports in issue by reference to the statutory criteria, and thereby failed to perform its statutory task.

Resolution of the questions of law and grounds supporting them

Procedural fairness concerning Ms Merran (question of law 1, ground 1)

64    The parties agreed on the applicable principles, which were set out by the Full Court in National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415. Having set out the general nature of the procedural fairness obligations imposed on the Tribunal, the Full Court said (at [66]-[69]):

One way in which a decision-maker may deny a party the fair opportunity to be heard is by failing to alert the party of an issue which it considers to be important if that issue goes beyond those considered by the parties.

This principle was expressed by a unanimous High Court in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 as follows:

[83]    Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person.

(Citations omitted.)

The Full Court in SZLPH v Minister for Immigration and Border Protection (2018) 266 FCR 105 (Besanko, Gleeson and Burley JJ) explained further as follows:

[38]    Procedural fairness does not require the decision maker to disclose what he or she is minded to decide so that the parties may have a further opportunity of criticising his or her mental processes before reaching a final decision, and generally does not require a decision maker to invite comment on the evaluation of the subject’s case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576 (Alphaone) at 590-591. However, the subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity to deal with them, and the subject is entitled to respond to any adverse conclusion drawn on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Alphaone at 591.

The Full Court’s statement above indicates that the Agency was entitled to respond to any adverse conclusion drawn on the materials before the Tribunal which is not an obvious and natural evaluation of that material. Put another way, the Agency was entitled to be directed to the critical issues on which the Tribunal was likely to decide unless recognition of such issues was, from the material, an obvious and natural conclusion to draw: Degning v Minister for Home Affairs (2019) 270 FCR 451 at [12] (Allsop CJ), citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591; and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [32].

65    The Agency contends the Tribunal should have, but did not, put it on notice that it would, or might, reject Ms Merran’s evidence and opinions because she had, in the Tribunal’s view, given her evidence in a “subjective manner” and had a personal interest in the promotion of the ‘delegated model of care’, and second because her real concern was the distribution of NDIS funds between providers of services rather than the appropriate support for the three review applicants. It contended these matters did not fall within the SZBEL and Alphaone exceptions described by the Full Court in WRMF.

66    On the appeal, the Agency put its submissions at an unduly elevated level, contending the Tribunal had made a finding of actual bias, or even dishonesty, against Ms Merran, which was never put to her, and of which the Agency was given no notice. As the Court pointed out during oral argument, the Tribunal made no such finding. All it did was to explain why it was not persuaded to accept Ms Merran’s opinions. The passages from Ms Merran’s evidence extracted in the Tribunal’s reasons do indicate firmly held opinions by Ms Merran, expressed in somewhat pejorative terms. She also spoke in the first person plural, using the language of “we”, indicating her personal commitment to the ‘delegated model of care’ as the best model for delivery of care to individuals such as the review applicants: see her evidence extracted by the Tribunal at [99] and [101]. It was open to the Tribunal to describe this as “subjective” and that was an obvious conclusion for the Tribunal to draw from the way Ms Merran gave her evidence.

67    It was open to the Tribunal to take into account how Ms Merran expressed her opinions, not just as to their content, but also the language she used. Objectively, the Agency can be taken to have been fully aware of how their own witness had given her evidence. It can be taken to have been aware of the questions the Tribunal had asked during the hearing. For example (Tribunal transcript at p 286, l 41 – p 287, l 8):

But it’s not the NDIS’s problem. The service provider should bear that cost?---No, no, no, I’m not actually saying that and this - NDIS pays more than anyone else by a long, long shot and you don’t have to claim that high rate. They have factored the rate to cover all these on-costs. It’s part of the governance and requirement when you sign a contract with them that you comply with those rulings. And they build in a lot of that. In fact I think off the top of my head it’s 20 per cent higher than Southern Cross bills out for any other funder, for the same level of disability. So there’s a very big margin that NDIS have put in there for that very reason. These people - - -

DEPUTY PRESIDENT: Ms Merran?---Yes.

You’re sounding very much like an advocate for the NDIS. Could you just concentrate on the question please?---Well I think I’m answering his question. Do you think I haven’t answered the question?

68    The Tribunal had the additional advantage of observing Ms Merran while she gave that evidence, and other evidence where her views were somewhat stridently expressed, including the passages quoted by the Tribunal in its reasons. From the transcript, it is not difficult to conclude that the Tribunal’s observation of her may have played a role in some of its findings. That was a method of reasoning open to the Tribunal as the merits decision-maker, and it did not have to give the Agency a running commentary on its impressions: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [48]; MQGT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 215; 282 FCR 285 at [38]. In any event, its initial impressions were obvious from the responses it gave to Ms Merran. The Agency could not but have been on notice that, at least at that point, the Tribunal had some concerns about her evidence.

69    It was open to the Tribunal to form a view Ms Merran was not speaking entirely objectively. There was ample evidence before the Tribunal about the kind of facility run by Ms Merran, through her own corporation. There was ample evidence Ms Merran was a proponent of the ‘delegated model of care’ promoted and preferred by the Agency. She used the model in the facilities run by her. It was as obvious as it could be that is why the Agency had called her as a witness.

70    Any reasonable party in the Agency’s position should have apprehended that Ms Merran’s opinions were capable of being rejected because she was personally responsible for the administration of a facility adhering to a ‘delegated model of care’, and because she was a proponent of the ‘delegated model of care’. All the more so once Ms Merran expressed her opinions in the strong language she did. These matters were natural and obvious conclusions arising from an assessment by the Tribunal of the competing evidence and positions.

71    This is not a matter to which the principles outlined by the Full Court in WRMF apply in the Agency’s favour.

72    The question of law must be answered aversely to the Agency, and the ground of appeal supporting it must be rejected.

Irrationality/illogicality in the Tribunal’s findings about Ms Merran (question of law 2, ground 2)

73    This question of law, and the ground supporting it, are put in the alternative to the first question of law, but in substance challenge the same findings and reasoning by the Tribunal about Ms Merran’s evidence.

74    The Agency contends that:

the treatment of Ms Merran’s evidence on credit grounds was central to, and dictated, the Tribunal’s consideration of s 33(5), and Ms Merran’s evidence was not truly considered because it was wrongly diminished in weight due to the issue of her credit.

…

As set out above, the propositions underlying the reasons that the Tribunal gave for subordinating Ms Merran’s evidence to A/Prof Wilson (and Prof Dowse) were not supported by, or rationally open on, the evidence. The Tribunal thus identified wrong issues (‘personal interest’ and ‘real concern’), and in doing so asked itself the wrong question (whether those issues were made out), and answered them based upon findings that were not properly open. That is an error of law: WRMF at [71]-[72]; Tsvetnenko v USA (2019) 269 FCR 225 at [35].

75    The Agency relied upon the approach to illogicality and irrationality set out by the Full Court in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175.

76    At [46] of its written submissions, the Agency contended the Tribunal “wrongly dismissed Ms Merran’s highly probative evidence”. It can be seen from this contention, confirmed by language used in oral submissions on the appeal, that the Agency in truth sought to impugn the merits of the decision made by the Tribunal, and its decision not to place weight on Ms Merran’s evidence. That is one of the challenges in relying on the irrationality and illogicality grounds – they can be easily transformed from the judicial supervision of legal error to an assessment of what was the correct or preferable outcome, or the correct or preferable treatment of certain evidence. See Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [96]; BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189; 281 FCR 594 at [71(5)] (Murphy J), [144] (O’Callaghan J), [150] (Snaden J); DAO16 at [30(5)].

77    In oral submissions, the following example of the difficulty the Agency had treading that line between contentions about illogical reasoning that caused the Tribunal’s task to miscarry, and an invitation to the Court to re-visit the merits of the review, is apparent (and in effect properly recognised by counsel: transcript at p 28, ll 1-41):

[MR KREMER:] We say, simply, a person hearing Ms Merran’s extensive experience and hearing her say, “You don’t need to have a nurse do this, and you don’t need to have a nurse do that, and it can be done by a support worker overseen by a nurse,” which is the way the model actually works – when one is looking at that evidence, one doesn’t jump to a finding that, well, that evidence about the tasks and the appropriateness for the individuals are somehow tainted by the fact that she has used the model or has been involved in its development or says that the model works.

The disconnect again is between the model that Ms Merran has been bound up in and has gone down on with her opinions as to the tasks for the participants, and what wasn’t impugned was her expertise to be able to evaluate and assess these participants. What wasn’t in issue was whether she had the years of experience delivering services to them. What wasn’t in issue was whether her assessment of what they needed in terms of support - - -

MORTIMER J: There was a debate, Mr Kremer. There was a debate before the tribunal about whether she had spent enough time with them.

MR KREMER: That’s correct. And we have put it in the submissions, where she said she spent about 30 minutes with each participant, she had done thousands of those and she thought that that was all the time she needed over her almost 40 years of experience. I’m not going to get into saying that this is some sort of an error, because that would be getting into merits review, but we say it’s a signal point that that isn’t one of the two reasons that her evidence was disbelieved, or not accepted or given less weight on it. If that had been the true motivating factor and it was something that the respondents did put in submissions, if the real reason for disbelieving her evidence or relegating it to Professor Wilson is she didn’t really appreciate their needs, she hadn’t spent enough time, all of what she did was somehow fatally flawed despite her extensive experience, we say that would have been in paragraph 101 and there wouldn’t have needed to be a paragraph 102.

That would have then justified, potentially, the treatment that the tribunal gave her, subject to linking that to each of the particular tasks that she talked about. In other words, was she there long enough to see that you don’t need a nurse to look at someone’s skin for 50 minutes, 48 minutes a day. That would have to be connected to a 30-minute assessment being inadequate. And on the dispositive findings, and it’s for the reasons set out in those two paragraphs that all of the statutory tests are applied with respect to, that is something that could have been done but we say wasn’t. And one can’t inject that back into the tribunal’s actual reasons. I think [Mulligan] makes that clear; one looks at the tribunal’s reasons as recording its reasoning process and its findings.

78    What, with respect, is also incorrect in this submission is the assertion that the Tribunal did not make sufficient findings to expose the basis for preferring Associate Professor Wilson’s assessments undertaken over a longer period of time, to those of Ms Merran. The Tribunal made sufficient findings at [107], when read in the context of the whole of its reasons. It was not required to descend into the minute fact-findings the submissions of the Agency might suggest. It is implicit in the way [107] is expressed that the Tribunal’s preference there is linked to matters such as it observation at [103] that Ms Merran was “dismissive”.

79    Further, it is unwise, and inappropriate, to separate out individual paragraphs of the Tribunal’s reasons in the way the submissions of the Agency sought to do. The paragraphs on which the Agency’s submissions focused need, for example, to be read with [109] of the Tribunal’s reasons, and the recitation of the evidence of the parents of the review applicants and the nursing staff at the accommodation facility, all of whom had long-term and close knowledge and experience of the care needs of the three review applicants. It is apparent when one reads the Tribunal’s reasons as a whole that this evidence was material to its reasoning. The Agency’s submissions fail to account for the Tribunal’s reasoning as a whole.

80    The Agency’s focus on the Tribunal’s findings as going to the “credit” of Ms Merran did not fairly reflect the approach taken by the Tribunal. We understood the Agency’s submissions to use the term “credit” as a synonym for credibility – that is, whether Ms Merran was being truthful in her evidence.

81    At common law, in the assessment of the evidence of a witness, a distinction was drawn between credibility and reliability: see IMM v The Queen [2016] HCA 14; 257 CLR 300 at [114] (Nettle and Gordon JJ). Their Honours explained:

The credibility of a witness was commonly understood as meaning the “truthfulness” of the witness – whether the witness genuinely believed that he or she was telling the truth. Reliability, on the other hand, referred to the ability of the witness accurately to discern and relay the truth as to an event, including the witness’s ability to observe and remember facts. For example, if an event occurred a long time ago, that might affect the reliability of the witness because it is generally accepted that memory is prone to fade over time.

82    See also Collins v The Queen [2020] NSWCCA 198 at [64], where Meagher JA referred in particular to the reasons of Basten JA in R v XY [2013] NSWCCA 121; 84 NSWLR 363 at [49].

83    The Tribunal did not find Ms Merran to be dishonest, or untruthful. In our opinion, it was not even necessarily making a finding that her evidence was unreliable. That is because Ms Merran was not called so much to give evidence as to facts, but rather to express opinions about what supports were necessary and reasonable for the three review applicants, including whether those supports should be delivered by registered nurses or disability support workers. There may have been some aspects of the Tribunal’s findings about her evidence which went to its reliability – for example, because the Tribunal was less persuaded about her assessment of the three review applicants since she had spent only thirty minutes with each of them. However, overall, the Tribunal’s findings simply reflect the weight it attached to Ms Merran’s opinions. It was part of its task on review to decide what weight to attach her opinions, and why. When a merits decision-maker performs that task, weight might be affected by a credibility assessment. It might be affected by a reliability assessment. Or it might be affected by a sense of overall persuasion about the relevance and correctness of the opinions expressed in light of other evidence. In our opinion, the Tribunal’s findings fall into the latter category.

84    The Tribunal found Ms Merran had somewhat fixed views, which were not directly related to the individual support needs of the three review applicants, but rather to a wider and somewhat ideological stance about the ‘delegated model of care’, and the capacity of disability support workers to deliver appropriate care in the place of registered nurses and at a lower cost to the NDIS. These findings were, as we have explained, well open to the Tribunal on the material before it, but they are not “credit” or “credibility” findings. They simply reflect the Tribunal’s choice, as the merits decision-maker, between different opinions given to it by different witnesses, in the light of all the evidence and material before it. Indeed, and relevantly, the Tribunal preferred the evidence of one of the Agency’s other witnesses – Emeritus Professor Dowse – over some of Ms Merran’s opinions: see at [104]-[105].

85    Further, the Tribunal’s preference for Associate Professor Wilson’s opinions over those of Ms Merran, as expressed in its reasons, cannot be divorced from the substantial differences in the approaches they took, and the factual bases in respect of the three review applicants that they used for their opinions. Associate Professor Wilson’s reply report dated 2 June 2021, which was in evidence on the appeal, makes the difference clear (at pp 3-6):

Ms Merran has disagreed with the level and amount of skilled registered nursing care and support as stated in my original report. Critically, Ms Merran offers no data or evidence to support how, why and where she disagrees, rather referring mostly to what occurs in her own organization offering this as an exemplar that [the review applicants’ care provider] should follow. I can locate no information in Ms Merran’s report that gives insight into what method was adopted to arrive at her conclusions for each person to receive between 60 and 90 minutes of registered nurse time per week.

In addition, unlike my reports, where each type of direct and indirect care and support - and why - are unpacked in detail across a series of tables specific to each individual, Ms Merran offers no such framework. The tables in my reports, plus the detailed text that supports the content of each table, offers both quantitative and qualitative data enabling the reader to not only understand what needs to occur for [the review applicants], but crucially why, to what extent, and how this links back to the disability-related health problems.

Ms Merran has not grappled with any of these issues, rather presenting a uniform 1 – 1.5 hours of support from a registered nurse with no degree of granularity that teases out what is require[d], and why, for each person. Rather than offering a unique framework that unpacks these 1 – 1.5 hours, Ms Merran annotates within my own Table 1 (in Appendix 3 of Ms Merran’s report), by adding a new column entitled “Barbara Merran Opinion” with non-specific statements such as “competently with DSW with action plan in place” and/or “allocated within 60/90 minutes per week”. In my view, these statements and the lack of an original framework to underpin Ms Merran’s opinion shows that the assessment of [the three review applicants] are missing supporting data.

…

[having used KKTB’s circumstances as an example] Although this is only a brief overview, this demonstrates how interlinked and complex everything is about [KKTB]’s chronicity and that having dysphagia is so much more than putting formula and water down a tube. Having an insight into this is vital, and also realising that if KKTB started to experience heart palpitations, for instance, due to fluid and electrolyte imbalance, that she is unable to tell anyone about this. Hence the skill of a registered nurse is to know the whole person and the cyclical relationship between all of the features of that person and how they intersect so that they can attain the utmost health and the best quality of life.

86    The same point was made in the review applicants’ statement of facts, issues and contentions in reply at [40].

87    Other aspects of Associate Professor Wilson’s responsive opinions to Ms Merran’s opinions were also picked up by the Tribunal (see for example at [172], regarding the location of the care provider’s facility) and were clearly available findings on the evidence before the Tribunal, such as the following opinion from Associate Professor Wilson in his reply report (at pp 5-6):

The first point to make is that the workforce and working conditions of Australian disability support workers under the NDIS is a highly casualised and fragmented workforce, offering insecure income, a lack of direct funding for training and supervision, an absence of institutional support for staff support and mentoring, and with a high turnover (Baines et al, 2019). This point is even more pertinent for regional and remote communities, such as the [region in New South Wales] where [the care provider] is based, as the 2018 Australian Government Joint Standing Committee on the NDIS acknowledged, regional areas are known to have fewer types of support and levels of expertise compared to cities (Laragy & Fisher, 2020). Moreover, as Laragy and Fisher have noted on page 144, of the ‘thin markets’ in rural and remote areas that the Joint Standing Committee noted, “… people impacted most were those with complex needs”. These issues place [the review applicants] at a double disadvantage, due to the complexity of their disability-related health issues, and their geographic location. For instance, most of the staff that I met during my visit to [the care provider] were recent immigrants from Nepal who had not been living in the area for long, and at follow-up phone calls some had already moved on to better paying jobs at the local hospital.

Further, the proportion of this workforce who are trained to either Certificate III or IV, while difficult to accurately ascertain, could be as low as one in five disability support workers (National Disability Services, 2018). Where a disability support worker has attained a TAFE certificate III (where there are no formal requirements at all to enroll in such a program), the TAFE website [hyperlink removed] states that the focus of this certificate (typically over 10 months) is to teach students how to provide personal care, promote the wellbeing and support the daily activities of people with a disability. There is a single unit of study (out of 14 required to attain the certificate) about health entitled “recognize healthy body systems” which covers only the basic functions and structures of the human body and not the cyclical complexity that is central to the lives of [the review applicants].

With respect to Ms Merran’s responses to Questions 1 and 2, I generally agree with all that Ms Merran states concerning what a disability support worker can do for [the review applicants] each day, including the time frames she has suggested for these tasks. In fact, other than for attending medical appointments where I believe that a registered nurse is better placed to perform this task, Ms Merran’s summary in Questions 1 and 2 mostly reflects what I drafted in the left hand column (under DSW) Table 4 of my report. This is what I would refer to as a fundamental level of care and support. That is, providing fundamental care and support for hygiene, nutrition, hydration, elimination, mobility and other activities of daily living.

Missing from Ms Merran’s recommendation, however, is the detailed, complex and highly skilled direct work and supervision that, in my opinion, only a registered nurse can, and should, provide daily for [the review applicants] and are outlined in my reports. The point of difference being that Ms Merran feels that 1 – 1.5 hours per week each is sufficient to provide enough care and support to [the review applicants], whereas I believe that this is incompatible with what constitutes best practice. That is, [the review applicants] require daily care and supervision from a registered nurse as outlined in the Tables within my individual reports.

Although disability support workers can do a lot for people with intellectual disability and disability-related multiple chronic and complex health problems, when working with the most vulnerable in our society there are limits to what they can do and this is where the skills of a registered nurse are required. For instance, missing from Ms Merran’s reports, but detailed in mine, are the full list of co-morbidities, how they intersect with the individual, how each chronic illness cascades into and influences the others, the daily risks inherently present, the impact of individual impairments on their lives, and acute exacerbations of these underlying issues. That is, the breadth and depth of care and support needs that are beyond the scope of a disability support worker and that can only be competently fulfilled by a registered nurse for [the review applicants].

88    There was nothing irrational or illogical in the Tribunal’s approach to Ms Merran’s evidence. The Agency’s submissions did not establish any absence of logical connection between the evidence and the inferences drawn, or findings made: see Fattah v Minister for Home Affairs [2019] FCAFC 31; 268 FCR 33 at [45], citing SZMDS at [135] (Crennan and Bell JJ); Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172; 255 FCR 486 at [34] (Gilmour and Mortimer JJ); DAO16 at [30].

89    The second question of law must be answered adversely to the Agency, and the ground in support of it must be rejected.

Failure to perform statutory task – failure to deal with the Agency’s submissions about Associate Professor Wilson (question of law 3, ground 3)

90    By this question of law, the Agency advances two distinct but overlapping contentions.

91    First, that the Tribunal failed to address submissions by the Agency about the details of the individual supports identified by Associate Professor Wilson in his opinions, and the challenges made by the Agency to those opinions. The Agency contends those challenges meant the Tribunal could not accept Associate Professor Wilson’s evidence. This is ground 3(a).

92    Second, in order to decide what were the “reasonable and necessary supports” for the three review applicants, the legislative scheme of the NDIS Act required the Tribunal to undertake a detailed assessment of the supports required by the three review applicants, in terms of specific tasks to be performed and the time required to perform them, as well as who should perform them. It can be seen from the extracts from Associate Professor Wilson’s report above that as part of providing his opinions, he had prepared detailed estimates of the time a registered nurse would need to spend with each review applicant, and for what purposes. The Agency cross-examined Associate Professor Wilson in detail about his estimates. He accepted that some estimates may be incorrect. The Tribunal’s reasons do not describe in detail the concessions he made, or the Agency’s submissions about the inaccuracies it submitted it had established should affect the weight to be given to his evidence. On appeal, the Agency contends that by not considering in detail in its reasons how Associate Professor Wilson’s opinions on these matters had been impugned by the Agency (successfully, it contends), the Tribunal did not perform this aspect of its task. This is ground 3(b).

93    As we have noted, the two grounds in question 3, and the submissions supporting them on the appeal and on the reviews before the Tribunal, overlap to a considerable extent, and neither should be read in isolation from the other.

94    As we have explained, the Agency’s case on each of the reviews involved a substantial challenge to Associate Professor Wilson’s evidence, just as the three review applicants challenged Ms Merran’s evidence. The two witnesses presented different opinions about the need for registered nursing staff to perform a range of tasks to support each of the review applicants. The extracts above from Associate Professor Wilson’s reply report illustrate the differences in approach and method. They also illustrate other aspects of Associate Professor Wilson’s assessment which he considered important, such as the size and location of the facility, the difficulties in securing or retaining disability support workers, and his emphasis on what had to this point kept all three review applicants well, free of additional health complications and enjoying their lives to the fullest extent they could. A further factor was the Tribunal’s opinion that Ms Merran had adopted a “cursory” assessment of the needs of each review applicant.

95    Thus, the differences in the factual basis for their opinions (in terms of the time taken to examine the review applicants and their present care, and how their respective estimates of how much time each review applicant needed with a registered nurse was reached) was not the only difference between them. As the extracts above illustrate, there were substantial differences in opinion about the appropriateness of the care that disability support workers could provide, about turnover of disability support workers, and about their training. In our opinion it is clear the Tribunal considered the opinions of Associate Professor Wilson and Ms Merran as a whole, not just the time estimates aspect: see, for example, [80]-[82] of the Tribunal’s reasons. As we explain below, the legislative scheme did not require the Tribunal to descend into the detail for which the Agency contended: see [112]-[113], [126]-[127] below.

Ground 3(a)

96    Associate Professor Wilson and Ms Merran were not the only witnesses before the Tribunal on this question, and the Agency’s submissions tended to overlook this fact. It was up to the Tribunal to determine the correct or preferable decision on each review, in light of all the material before it. The Tribunal’s reasons make it patently clear it was aware of, and understood, the Agency’s challenge to Associate Professor Wilson’s evidence. It set out his qualifications, experience, and his written and oral evidence that it considered relevant to its findings at [66]-[82] of its reasons. It assessed Associate Professor Wilson’s evidence at [106]-[108]. It expressly relied on Emeritus Professor Dowse’s positive assessment of Associate Professor Wilson’s report (at [106]), Emeritus Professor Dowse being a witness called by the Agency. It expressly relied on the amount of observation time spent by Associate Professor Wilson and his close consideration of nursing records. Having made it clear it found Associate Professor Wilson’s opinions persuasive, the Tribunal found (at [107]):

Associate Professor Wilson was questioned concerning the calculations in his report, based on minutes, for various activities which led him to conclude that [XZJY] needed the support of a Registered Nurse for two hours and six minutes per day. It is unnecessary that a determination of what is “reasonable and necessary” rely on such minute detail. Based on his experience and his careful assessment of the individual needs of [XZJY], I accept his evidence as to the amount of Registered Nurse care required by [XZJY]. In contrast, Ms Merran made her estimate based on a unit of 30 minutes.

(Original emphasis.)

97    In terms of both ground (a) and ground (b), this passage discloses the Tribunal’s awareness of the specific contentions made by the Agency about Associate Professor Wilson’s evidence. We are satisfied those aspects of the Agency’s case on each of the reviews were considered by the Tribunal, and should not be characterised as submissions seriously advanced by a party and ignored by a merits decision-maker.

98    With the benefit of hindsight, it may have been preferable if the Tribunal added a sentence or two explaining expressly why it did not consider the “minute detail” in the Agency’s submissions assisted it, apart from stating it was not a necessary task. However, in our view the failure to do so does not indicate the Tribunal failed to appreciate and consider the Agency’s case.

99    As we have noted earlier, in weighing up the evidence (and deciding which evidence it preferred) the Tribunal expressly stated (at [109]) that it had taken into account the evidence of XZJY’s parents, Ms M and Ms P, “all of whom have had years of experience in caring for [XZJY]”. In other words, it is clear the Tribunal saw the evidence of these witnesses as important, and as tending to support the opinions of Associate Professor Wilson rather than those of Ms Merran. That was a choice for it as merits decision-maker. The Agency’s submissions on appeal tended to characterise the review as a contest between Ms Merran and Associate Professor Wilson. That is in our respectful opinion an incorrect characterisation of the three reviews as a whole, and the Tribunal’s decision and reasoning on the reviews. The Tribunal took account of all the material before it, and its reasons disclose it well understood and placed weight on what those who had cared for the three review applicants over a long period of time – their families and the current staff at the facility – told the Tribunal about each of the review applicants’ support needs. That was a course which was open to the Tribunal.

Ground 3(b)

100    Turning to ground 3(b), it is necessary to recall the context of the Tribunal’s findings. On internal review, XZJY (taking her as the example for these purposes) had sought support of six hours per day by a registered nurse: at [6]. However, after the adverse internal review decision and before the Tribunal, XZJY sought support from a registered nurse for four hours, seven days a week: at [9]. Thus, it was this figure – around four hours per day – that was before the Tribunal in terms of assessing whether that level of care by a registered nurse was a reasonable and necessary support for XZJY.

101    The reason for the change was explained in opening submissions before the Tribunal by the review applicants’ lawyer (Tribunal transcript at p 13, l 43 – p 14, l 2):

One thing that becomes evident through this survey of their circumstances and their requested supports and the basis for the requested support needs is that it is materially less than what they sought on the internal review. In each case, Professor Wilson's recommendation is in the four hour range whereas on internal review the amount of hours of registered nursing support per day was more, a couple of hours to three hours more for some of the – for one of the participants.

102    This summary broadly reflects the differing review requests by each of the three review applicants. KKTB, XZJY and YHPS requested 7.03 hours, 6 hours and 4.08 hours per day (respectively) in the internal review, and then 4.86 hours, 4 hours, and 4.8 hours per day (respectively) before the Tribunal: KKTB reasons at [6], [9]; XZJY reasons at [6], [9]; YHPS reasons at [6], [9]. Nevertheless, the point is that each review applicant reduced the registered nurse hours requested and did so at least in part in reliance on Associate Professor Wilson’s opinions.

103    The review applicants’ lawyer also emphasised the following point in opening. In our opinion, it is clear from the Tribunal’s reasons that it accepted this submission:

There is a debate between the respondent and the applicants about how the requested supports should be framed. In my submission, this is a case where the requested supports should be framed with pragmatism and with reality in mind. What I mean by that is this, it is unknowable what precise registered nursing support, exact registered nursing supports each of the participants will need every single day over the life of a 12-month plan. Professor Wilson doesn’t purport to give that sort of statement in [his] reports. What he does is to fact[or] in all of the relevant data points that he observed and he assessed, and he comes to a professional clinical judgment, which is an estimate of what is required. Having framed it that way, from the applicants’ point of view, the requested support is for an identifiable number of hours based on Professor Wilson’s professional estimation.

104    For the reasons we set out below, we do not consider there was anything legally erroneous in the Tribunal not expressly addressing in its reasons the Agency’s criticism of Associate Professor Wilson’s estimates, and the task by task basis for them. What the Tribunal said at [107] of its reasons (extracted at [96] above) was, in the circumstances of these three reviews, sufficient. There was no legal error in terms of the Tribunal’s assessment of what was the correct or preferable decision on each review about the “necessary and reasonable supports” that should be set out in each review applicant’s participant plan, in terms of how much of their daily or weekly care was to be funded to be delivered by a registered nurse.

105    Rather, the assessment of what were the “reasonable and necessary supports” for each review applicant were factual matters for the Tribunal to determine. The approach to take at a factual level was also for the Tribunal to determine, as we explain below. It was for the Tribunal to consider the different approaches set out in the parties’ cases in each review before it.

106    Turning first to the context. As we have noted, before the Tribunal the Agency sought to impugn almost every aspect of Associate Professor Wilson’s opinions, and spent a great deal of time in questioning and challenging the estimates in his tables, and the individual tasks he had identified as supports that should be provided by a registered nurse. The Agency’s “Skeleton of Closing Submissions” ran to 19 pages and 83 paragraphs.

107    A considerable portion of this ‘skeleton’ was devoted to criticisms of Associate Professor Wilson’s evidence. There were criticisms based on contended inconsistencies with applicable guidelines for care of people in the circumstances of the review applicants. There were criticisms that Associate Professor Wilson’s approach was too medicalised. There were criticisms that Associate Professor Wilson’s four hour estimates allowed for more time for care tasks for the review applicants than might be allowed for some hospital inpatients, in situations the Agency contended were comparable. This does not purport to be an exhaustive list, but rather is intended to give a sense of the considerable level of attack by the Agency on Associate Professor Wilson. In our opinion, on a reading of the material, there was no aspect of the Agency’s merits review case which loomed larger than its attack on Associate Professor Wilson.

108    Further, rather than this being any prominent part of the review applicants’ case against Ms Merran, it was the Agency who attacked the “credit” of Associate Professor Wilson, in rather unrestrained language:

Overall, it is not to [Associate Professor] Wilson’s credit that he refused to accept the obvious when confronted with objective evidence that his model of care is more medicalised, and higher intensity, than what is needed for acute patients after admission to hospital: he has grossly overstated the need for monitoring of the applicants during the times they are well in order to detect possible signs of illness: T111.28-30; T145.41-42.

109    The Agency’s ‘skeleton’ descended to very specific levels of criticism about Associate Professor Wilson’s calculation of the tasks in the tables in his report. For example, the Agency submitted (at [36]):

In Table 1 [Associate Professor] Wilson identifies the risk of [KKTB] pulling out her PEG as justification for “[E]nteral care, including patency and positioning check of PEG every hour”. In cross-examination, he conceded that:

(a)    there was no record of KKTB having pulled out her PEG since she started wearing special clothing to prevent her tampering with her PEG (being the clothing that Ms Merran was concerned was a restrictive practice): T143.15;

(b)    curdling (ie fluid being stuck in the tube) was only a concern during feeding times: T142.35;

(c)    a support worker would be able to notice problems such as leaking or kinking, as well as to handle “venting” of gases: T142.18; T319.28-42.

(Original emphasis.)

110    It is worth extracting the cross-examination referred to in (a) by the Agency. We do so only for the purpose of demonstrating two propositions. First, how much this aspect of the Agency’s submissions invited this Court to descend into the merits of the Tribunal’s reasoning and its choice to prefer Associate Professor Wilson’s opinions over those of Ms Merran. Second, to indicate that the Agency’s submissions to the Tribunal were selective in their references. This is but one example, and on our review of the Agency’s references, other examples could also have been given. At Tribunal transcript at p 142, l 22 – p 143, l 29:

And in your reply report after Ms Merran drew attention to the PEG tube, you recall that you said in your clinical experience - if you want to go to it I think it’s your overall reply report and in [KKTB] bundle it’s at 512?---Sorry, what page are we on?

So it’s page 4 of your report. Sorry, I will just [look] at the page. And it’s about halfway down the page, and you’re criticising Ms Merran above that for there being very little differentiation between her reports. And then you say:

[KKTB]’s report does differentiate slightly from [YHPS] and [XZJY]’s at paragraph 6, 8, 11 to 17 where Ms Merran states that [KKTB] requires an additional one hour of support every three months for a routine gastroscopy tube change. In your clinical experience gastroscopy tubes fail and fall out at random times, requiring reinsertion by a registered nurse within 20 to 30 minutes to avoid a hospital admission for a surgical procedure.

And you’ve included these times in the estimate of her support, registered nurse support?---Yes, the times to, you know, do those routine changes and so on is incorporated in all of that, yes.

Yes. And there’s nothing in [KKTB]’s medical records annexed to your report that shows that she has had any PEG tube displacements, is there?---Yes, because I don’t know that typically there would be. I think that if, you know, what you would do as a registered nurse is you would have daily notes, and you would just jot down, you know, that you changed the PEG tube today and you would put the date of it, you would put what brand it was, what size it was, just in the progress notes there. There are some disability services that I have had involvement with where they have large numbers of people with a gastrostomy and so like they will have a cupboard with multiple brands, multiple sizes and so on, and they will have a chart which is, I guess, their quality control mechanism because they’ve got multiple people. But I think that in this instance it would just be in the progress notes, you know, that the registered nurse would just write that.

But there’s nothing in there to show she has had any dislodgements in the notes because you haven’t annexed anything to your reports saying it?---No, I haven’t. That’s correct, yes.

And the reason is, isn’t it, that as Ms Merran notes, that [KKTB] has special clothing to prevent her tampering with her tube?---Yes.

And Ms Merran was concerned it was a restrictive practice?---Right.

And you didn’t think it was a restrictive practice, you thought it should be checked?---No, I didn’t say that I even think it was a restrictive practice, I said that I think that it’s something that needs to be clarified with the Quality and Safeguards Commission, and I put a quote from the Commission that there are certain instances where something is not considered restrictive practice, but obviously you would need to seek guidance for that. And just because someone has restrictive clothing doesn’t mean that the gastrostomy won’t fail. It’s held in by a balloon, and oftentimes it will be the balloon that will burst and so there’s multiple - multiple scenarios here, multiple things can happen.

(Original emphasis, additional emphasis in bold.)

111    We have highlighted in bold aspects of Associate Professor Wilson’s answer which may put a different complexion on his evidence to that the Agency sought to advance to the Tribunal in its ‘skeleton’. We say “may”, because these are not matters for this Court. It was the Tribunal Member who listened to all of this evidence, and who observed and assessed the witnesses, including Associate Professor Wilson and Ms Merran, but not only them, as we have pointed out. It was up the Tribunal Member to form an impression about the evidence which was relevant, reliable and persuasive, including which opinions should be accepted. It might be inferred that the Tribunal, in considering the Agency’s references in its submissions, may have appreciated the Agency sought to put forward a selective view of the evidence, and this contributed to the Tribunal’s preference for a more holistic approach. Otherwise, the Tribunal could have been drawn into dealing in its reasons with every footnote in the Agency’s written submissions. That was neither a necessary nor appropriate task for it on these reviews.

112    On matters of fact and opinion, the Tribunal does not have to set out in its reasons a minute line by line refutation of the case put by one party in the Tribunal which it does not accept. It must of course carefully consider the submissions made by each party on a review before it. Having done so, it is entitled to form its impressions of witnesses before it, and the evidence they give, and so long as in its reasons it sets out those impressions in a rational and reasonable way, explains why it has preferred one witness over another (if indeed it has), and refers to the material on which its conclusions are based, its reasons comply with its obligation in s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal did refer to a number of passages from Associate Professor Wilsons’s reports which, by the Tribunal’s use of bold highlighting, clearly indicates how it preferred the applicant’s approach: see the extracts in the XZJY reasons at [73], [76] , [78], as well as [80].

113    The Tribunal’s reasons are compliant with its obligation in s 43(2B), and indeed on this appeal are not alleged by the Agency to be otherwise. It is important that, on an appeal under s 44 of the AAT Act, this Court does not impose unduly arduous or insuperable burdens on a busy merits Tribunal about the level of detail required in its reasons. The Tribunal’s reasons here are coherent, logical and contain sufficient detail in terms of its references to the evidence on which its findings are based. It need not have done more.

114    What we see in these three reviews were opposing parties inviting the Tribunal to adopt quite different levels of scrutiny. The review applicants sought to ask the Tribunal to rely on Associate Professor Wilson’s overall conclusions of around four hours for each review applicant, noting that was always an approximation and their needs would vary but this was the level at which the funding should be pitched, to satisfy what was a “reasonable and necessary support” from a registered nurse.

115    The way the review applicants put their case on review was evident from the start, in their Tribunal review applications. XZJY’s application was before the Court on the appeal. The text is not clearly reproduced, perhaps because the document is a print-out of an online document. However XZJY’s reasons for the review are clear:

The decision direct[l]y affects my hea[l]th and we[ll] being and cou[l]d [l]ead to my death. I need this issue addressed as a matter of urgency[.] I require Registered Nursing support, assessment and monitoring. I cannot make my own decisions and re[l]y on professiona[l] c[l]inica[l] assessment and assistance. A [disability support worker] is not trained, or qua[l]ified to de[l]iver this assistance and it is not the ro[l]e of an RN to train a [disability support worker] in … [n]ursing care, protoco[l]s and procedures. I have a[l]ways required this high [l]eve[l] of assistance and have been supported by Registered Nursing oversight and care we[ll] before the NDIS was initiated.

My needs are not determined by [the care provider]. This organisation meets my needs as they are. My carers are deep[l]y disturbed by this decision as they have seen the damage done when care is de[l]ivered by unski[ll]ed workers.

[The care provider] has a nurse on duty 24/7 and there are documented instances where this staffing has been abso[l]ute[l]y vital for me.

My needs have not been adequate[l]y assessed and addressed; my hea[l]th profi[l]e has been ignored. This is a funding decision and the argument about Registered Nursing care was a State / Federa[l] footba[ll] for the first years of NDIS; now that this aspect of care has been p[l]aced in the NDIS fie[l]d of funding my needs have been reassessed so that I no [l]onger required this [l]eve[l] of care. Certain[l]y nothing miracu[l]ous has occurred that wou[l]d enab[l]e me to take part in my high [l]eve[l] care. There are residents of [the care provider] present[l]y receiving Registered Nursing supports in the p[l]ans. Like myse[l] they need these hours of specia[l]ised care.

116    The first paragraphs of the review applicants’ statement of facts, issues and contentions also made it clear their case was that care by a registered nurse was the necessary and reasonable support in issue (rather than the individual tasks to be performed):

The internal review decisions concerned the approval of a statement of participant supports for each of the applicants under s 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). In those decisions, the Agency declined each applicants’ requested level of registered nursing supports on the basis that the supports did not satisfy the criteria in s 34(1)(c) of the NDIS Act. On the present review, the applicants contend that the correct or preferable decision in each case is to approve their requested level of registered nursing supports as detailed further below and in the evidence before the Tribunal.

…

For the reasons set out below, the Tribunal should set aside the Agency’s internal review decisions and find that the requested registered nursing supports for each applicant satisfy the criteria in s 34(1) of the NDIS Act and the applicable National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Support Rules).

(Original emphasis omitted, emphasis added in bold.)

117    Associate Professor Wilson’s opinion was put before the Tribunal as part of the review applicants’ case as set out above. The case was not for funding for each personal care task each review applicant might need, but for a reasonable approximation of the amount of time, on a daily basis, for which it could be expected each of the review applicants would need the support of a registered nurse. As the extract above indicates, the review applicants themselves explained why this was so, and their explanations did not centre on the minutiae of how a registered nurse might care for them each day, that of course being a matter that could vary and change over time, depending on their health, their needs and the course of their daily lives.

118    Associate Professor Wilson prepared a separate report for each review applicant. If XZJY is used as an example, in his report on her, Associate Professor Wilson set out the following summary at the start of his report (at p 4):

Overall Support Needs Summary: [XZJY] has profound and multiple disabilities with disability-related multiple chronic and complex health problems. [XZJY] requires full support for all of her daily care and support needs. A Disability Support Worker (DSW) is required 24-hours a day to ensure that [XZJY] remains comfortable, is able to achieve the greatest quality of life possible, has opportunities to participate in activities that she enjoys, and has all of her daily personal care needs met. The complexity of [XZJY]’s disability-related health support needs, the rapid manner that her health status can deteriorate, and her inability to directly communicate symptoms to others, means that she requires access to a Registered Nurse-led model of relationship-centred care for her overall health needs and management.

…

Note: A[ registered nurse] is the only staff member with the scope of professional practice to undertake a nursing assessment of any acute exacerbation of [XZJY]’s respiratory, urological, sensory and gastrointestinal status, to implement a nursing intervention/s, and monitor and review for deterioration or improvement in [XZJY]’s condition. [XZJY]’s history of unpredictable and rapidly deteriorating health status, needs urgent and skilled nursing assessment, intervention and clinical decision-making.

(Original emphasis.)

119    This opinion as expressed is consistent with the “reasonable and necessary support” being a specific number of hours’ funding for care by a registered nurse as part of XZJY’s daily care, as well as a disability support worker, it being common ground each review applicant needed 24 hour care, most of which would be provided, on a 24 hour basis, by a disability support worker.

120    The Agency sought to parse and divide, line by line, and minute by minute, task by task, how Associate Professor Wilson reached his conclusions. As the transcript extract at [110] above demonstrates, read with the passages from his report we have extracted earlier in these reasons, Associate Professor Wilson was not intending to be prescriptive through his tables. He was attempting to provide a basis for how he reached the calculation of four hours. But time and again in his reports and in his oral evidence he emphasised the complexity of the impairments experienced by the review applicants, the way those impairments could suddenly change or worsen (or how new complications and life threatening issues could arise), and the interaction of the management of those impairments with the review applicants’ overall well-being and enjoyment of life. In that context, doing the best he could to predict what might be needed over a 12-month period in the future, allowing for a wide range of possibilities, he landed on four hours of funding as reasonable and necessary. The Agency was entitled to test that opinion, and its basis, as it saw fit. Which it did. However, ultimately, it had to persuade the Tribunal Member who listened to all the evidence that its criticisms should be accepted. A descent into minutiae might or might not have been the best forensic choice, but that is what occurred.

121    As the Tribunal’s reasons demonstrated, it preferred a more holistic approach and expressly rejected that level of scrutiny as necessary: see at [107]. That was a choice for it as the merits decision-maker. As we explain below, the NDIS Act does not require any particular level of scrutiny, and certainly does not require a Tribunal in its reasons to refute, line by line, the minutiae of an attack made by the Agency.

122    Other examples can be found of the differences in the parties’ approach, ultimately reflected in the Tribunal’s choices in its reasons. In oral closing before the Tribunal, the review applicants’ lawyer made submissions such as the following (Tribunal transcript at p 402, ll 23-45):

Now, the next topic is these New South Wales Health Guidelines. Mr Kremer referred to the guidelines to suggest that - I’ve got it here, this is the recognition and management of patients who are deteriorating - a New South Wales Health Guideline. Mr Kremer referred to these guidelines to suggest that what Professor Wilson is recommending is in excess of these guidelines and that should never be accepted because these guidelines provide for what people in acute care of [sic] sub-acute care should have. Now, can I just refer the tribunal in passing to part 4.4 of these guidelines which is on page 15 of 33. I won’t ask the tribunal to read that section now, but it’s headed, Individualised Monitoring and Assessment Plans. And the first sentence states, ‘It is recommended that patients with clinical needs which differ from approved clinical management guidelines have an individualised monitoring and assessment plan in place. And then it goes on to say more about the need ultimately for an individualised assessment plan.

All this is a way of saying that we circle back to the essential point in this case which is that the tribunal or any decision-maker should make a decision guided by appropriate expert evidence relevant to a person’s specific circumstances and is not - and should not be - should not be dictated to by what’s in a policy guideline. And in fact, the policy guidelines say all the relevant policy guidelines that the tribunal’s been taken to have a way of saying, the individual’s individualised assessments and needs should be considered ultimately.

(Emphasis added.)

123    The review applicants’ written statement of facts, issues and contentions in reply made a similar point at [39]:

Therefore, the purported clash of models is not the correct lens through which to view the case or the evidence. The [review] applicants’ main contention in relation to ‘models’ is simply that the delegated care model imposed by the internal review decision should not be accepted by the Tribunal. The alternative posited by the [review] applicants is simply that the registered nurse supports identified by Associate Professor Wilson are reasonable and necessary for each of them in their circumstances.

(Emphasis added.)

124    A further example of the different emphasis in the parties’ cases before the Tribunal concerns the review applicants’ emphasis on their “lived experience” and the experience of those who have cared for them. The Tribunal identified this “lived experience” as “evidence of the success of care of Registered Nurses (working in conjunction with supervised Disability Support Workers)” (at [153]). Regard to lived experience was a feature of the closing submissions before the Tribunal by the review applicants, with the review applicants’ legal representative stating (Tribunal transcript at p 405, ll 29-37):

The next topic concerns the relevance of the experience of the parents. Again, I go back to the fundamental point in relation to section 34(1)(d) which is the rules make the lived experience - this is in paragraph 3.2(b) – the rules make the lived experience of the participant or their carers relevant material, relevant matters for the tribunal to consider in making a determination about section 34(1)(d). The lived experience of the participants and in particular the plan nominees, being the parents in this case, supports the view that the supports, the requested supports, have been and will be effective and beneficial.

125    The Tribunal’s reasons demonstrate it accepted the review applicants’ overall approach: see at [2], [109]. That was part of the performance of its proper function as merits decision-maker.

126    The premise of ground 3(b) is that the Tribunal was required to dissect Associate Professor Wilson’s evidence in the way the Agency did, in order to reach a conclusion about what were the necessary and reasonable supports for each review applicant.

127    That premise is simply incorrect in terms of the factual circumstances before the Tribunal, and the different cases presented to it, as we have explained. It is also incorrect at a legal level.

128    The phrase “reasonable and necessary supports” is not defined in the NDIS Act. Section 34 does not exhaust the universe of matters which a decision-maker may consider to decide whether a support is a reasonable and necessary one for a particular participant, given their impairments: see McGarrigle at [91]. See also WRMF at [150]. Section 34 prescribes matters about which the decision-maker must be satisfied before a support can be included in a statement of supports under s 33. Satisfaction as to those matters (where relevant and applicable) may be conditions on the power to approve a support or supports, and enter a support in a statement of supports under s 33. However, the phrase “reasonable and necessary supports” has a qualitative aspect and leaves 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”: WRMF at [143], [152]. It is a composite phrase, which should not be definitively constrained, with each limb of the phrase using language well understood by courts: WRMF at [149]-[150], [252].

129    In WRMF, the Full Court said (at [141]):

The supports to be provided to a person who qualifies as a participant are intended to accommodate an individual’s particular impairments and to assist that particular individual to be a participating member of the Australian community, and to do so on the basis of the values set out in the objects and guiding principles clauses of the Act, as well as the values set out in s 17A of that Act …

130    In National Disability Insurance Agency v Davis [2022] FCA 1002 at [69], the Court noted the relationship between the concept of permanent impairment (part of the access criteria for the NDIS scheme) and the supports to be provided to a participant through a plan:

What the legislative scheme focuses on is not the name of a person’s disability, nor the diagnosis given to a person – but rather what are the impairments experienced by a person which may require supports so that the person can participate in all aspects of personal and community life. It is the impairment which the scheme contemplates may affect the “functional capacity” of a person.

(Original emphasis.)

131    Also important are the terms of s 17A of the NDIS Act. As at the time of review, s 17A stated:

Principles relating to the participation of people with disability

(1)     People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.

(2)     People with disability will be supported in their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised.

(3)     The National Disability Insurance Scheme is to:

(a)     respect the interests of people with disability in exercising choice and control about matters that affect them; and

(b)     enable people with disability to make decisions that will affect their lives, to the extent of their capacity; and

(c)     support people with disability to participate in, and contribute to, social and economic life, to the extent of their ability.

(Original emphasis.)

132    In Davis at [83], the Court also said:

The guiding principles in s 4 make it abundantly clear that the scheme is directed at lifelong support, and lifelong benefits, in order to promote substantive equality between people with and without disabilities.

133    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.

134    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.

135    The respondents are correct when they submit that the Agency’s contentions in ground 3(b) involve a characterisation at a factual level of the “supports” for each review applicant being “the various tasks” to be provided by a registered nurse. That is not how the Tribunal approached the matter at a fact-finding level. As the respondents submitted, the Tribunal looked at what daily level of care by a registered nurse was a reasonable and necessary support for each review applicant. It was a daily level of care by a registered nurse which was the support sought; namely around 4 hours. That is what was in issue on the review. The Tribunal undertook this assessment on the basis that this “support” would be in addition to the care which the parties agreed would also be provided by disability support workers (and was not in issue on the review), and it was correct to do so. Taking the XZJY reasons as an example, the Tribunal’s conclusions at the end of its reasons (at [172]-[173]), as well as its reasons as a whole, demonstrate this was the approach it took.

136    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.

137    Question of law 3 must be answered adversely to the Agency, and grounds 3(a) and 3(b) must be rejected.

Conclusion

138    The appeal should be dismissed. The Agency should pay the costs of the respondents. In accordance with the Court’s present practice, costs should be fixed by way of an agreed lump sum. In default of agreement, the question of an appropriate lump sum will be referred to a Registrar for determination.

Associate:

Dated:    17 November 2022

REASONS FOR JUDGMENT

THAWLEY J:

INTRODUCTION

139    I have had the advantage of reading the draft reasons of Mortimer and Abraham JJ. With hesitation, I have reached a different conclusion on one aspect of the appeal.

140    The National Disability Insurance Agency raised two confined issues in the appeal:

(1)    The first issue concerned what were said to be adverse credit findings made against the Agency’s expert witness, Ms Merran. The Agency contended that:

(a)    it was provided no opportunity to be heard in relation to the bases for the Tribunal’s adverse credit findings (Ground 1); and

(b)    the Tribunal failed to perform its statutory task by making credit findings which were not available on the evidence (Ground 2).

(2)    The second issue was whether the Tribunal failed to perform its statutory task on the basis that:

(a)    the Tribunal did not sufficiently consider the applicant’s submissions concerning Associate Professor Wilson’s evidence (Ground 3(a));

(b)    if it did consider those submissions, it failed to consider the individual supports in issue by reference to the statutory criteria (Ground 3(b)).

141    Although Grounds 3(a) and (b) were expressed to be in the alternative, they were not argued as strict alternatives. My difference of opinion is that I would allow the appeal on Ground 3(a). I will, nevertheless, also address the other grounds briefly.

GROUNDS 1 AND 2: CREDIT FINDINGS

142    I agree with Mortimer and Abraham JJ that Grounds 1 and 2 have not been made out for the reasons given by their Honours.

143    The Tribunal preferred the evidence of Associate Professor Wilson to the evidence of Ms Merran. It did so principally for the reasons that it considered:

    Ms Merran had given her evidence in a “subjective manner and was intent on promoting the model of care she had introduced to Southern Cross Healthcare”;

    Ms Merran had a “personal interest in the promotion of the delegated model of care by reason of her being a director and shareholder of the company”;

    Ms Merran’s “real concern relates to the distribution of NDIS funds between providers of services rather than the appropriate support for” the Tribunal applicants.

144    In expressing these conclusions, the Tribunal was providing reasons for why it preferred the evidence of Associate Professor Wilson to the evidence of Ms Merran. The Tribunal was explaining why it concluded that Ms Merran’s evidence not as objective as that given by Associate Professor Wilson. Each of the Tribunal’s conclusions at [143] above was open on the material before it. The Tribunal was not obliged to expose its provisional views in these respects to the Agency for comment, because – for the reasons explained by Mortimer and Abraham J – the Tribunal’s conclusions were not of a kind which could be characterised as not being “an obvious and natural evaluation of the material” before the Tribunal: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; 49 FCR 576.

GROUND 3

145    As to Ground 3(b), I agree with Mortimer and Abraham JJ that the statutory scheme, in its application to the reviews before the Tribunal, did not require separate treatment and analysis of the various tasks identified by Associate Professor Wilson as individual “supports”. The Tribunal was entitled to approach the reviews by reaching a conclusion that registered nurse support of a certain number of hours was a (singular) “reasonable and necessary support”. Ground 3(b) proceeds on the basis that it was not permissible to approach the reviews on the basis that a certain number of hours of registered nurse support was a (singular) “reasonable and necessary support”. That ground is not made out.

146    This did not mean that the Tribunal did not have to consider the Agency’s clearly articulated and substantial submissions to the effect that Associate Professor Wilson’s estimate of the total number of hours of registered nurse support was unreliable. This submission was relevant whether or not the statute required consideration of the various tasks identified by Associate Professor Wilson as individual supports requiring separate analysis by reference to the statutory criteria.

147    The Tribunal was obliged to consider, in the sense of engage with and evaluate the merit of, the submissions which the Agency had advanced in this respect. The Tribunal did not refer to the any of the specific criticisms which the Agency had made. It did not expressly or implicitly address any of those criticisms in its reasons. The criticisms were substantial, supported by probative material, clearly and concisely articulated, and seriously advanced.

148    The inference is open that, in what was otherwise a thorough and careful engagement with the respective cases put, the Tribunal did not consider, in the sense of engage with and evaluate, the Agency’s submission that Associate Professor Wilson’s estimate of the total number of hours of registered nurse support was unsound.

149    The opposite inference is also open as Mortimer and Abraham JJ have necessarily concluded.

150    After careful consideration, and with some hesitation, I am satisfied that the Tribunal did not engage with the Agency’s submissions about Associate Professor Wilson’s estimate of the total number of hours being unsound in a way sufficient to discharge its statutory function of review or comply with its obligation to consider the submission as a matter of procedural fairness. I therefore conclude that Ground 3(a) is made out. My reasons follow.

151    The parties before the Tribunal filed Statements of Facts, Issues and Contentions (SFIC) covering each of the three reviews. The Tribunal applicants filed their SFIC first, after which the Agency filed its SFIC and the Tribunal applicants then filed an SFIC in Reply.

152    I will take XZJY’s review as an example. The Tribunal applicants sought funding for registered nurse supports for 4.1 hours. The number of hours was drawn from Associate Professor Wilson’s expert report dated 5 March 2021. In that report, Associate Professor Wilson had identified the disability-related chronic illnesses from which XZJY suffered and summarised the “RN-specific care and support needed for each chronic illness”. The “RN-specific care” was divided into “RN-led” and “RN-assisted” care. Associate Professor Wilson prepared various tables which included a table which identified specific “supports” (or tasks required to be performed) and estimated the time required to undertake those tasks. The first SFIC filed by the Tribunal applicants included:

The applicants’ circumstances and support needs

[XZJY]

…

28.     On the present application, [XZJY] seeks approval for fewer hours of registered nurse supports than sought on the internal review (4.1 hours per day rather than 6 hours) but urges the Tribunal to reject the Delegated Care Model.26 The basis for this position appears in the Expert Report of Associate Professor Nathan Wilson (who has over 30 years’ experience as a registered nurse and is also an academic specialising in the field of clinical care for persons with intellectual and developmental disability). Professor Wilson states that [XZJY] requires a total of 4.1 hours of registered nurse supports per day, comprising “3.79 hours of direct specialised nursing care and support, and 0.30 hours of specialised indirect care and support”.27 Professor Wilson’s report explains the basis for these recommended hours as follows:

(a)    In relation to direct registered nurse supports – Tables 1, 2 and 4 set out [XZJY]’s conditions and impairments, her corresponding registered nurse support needs, the frequency and duration of the support need, and provides an estimate of the average time required for each nursing support in a 24-hour day. A major driver of the need for and duration of daily direct registered nurse support is the identification of particular body systems that are vulnerable and where “an RN needs to assess [XZJY], at least every hour, to ameliorate the risk of problems developing in these known areas of vulnerability.”28 In particular, Professor Wilson observes that [XZJY] requires regular assessment by a registered nurse of her skin, joints, eye condition, and hydration. This is to ensure early detection and treatment by a health professional exercising clinical judgment.29

(b)    In relation to indirect registered nurse supports – Professor Wilson details the role of a registered nurse in providing supports such as planning and reviewing health and care assessments, assisting with medical and allied health assessments, and the estimated time to complete these monthly or annual tasks.

26    Expert Report on Disability-Related Health Support Needs for [XZJY] by Associate Professor Nathan J Wilson dated 5 March 2021 ([XZJY]’s Report) at 23.

   27    [XZJY]’s Report at 23.

   28    [XZJY]’s Report at 13.

   29    [XZJY]’s Report at 9.

153    The SFIC relied upon by the Agency included the following:

Part C.     Issues

28.    The ultimate issue in each application is whether funding for a stated number of hours of activities to be undertaken by a registered nurse is a reasonable and necessary support for each applicant within the meaning of s 33(2)(b) of the NDIS Act. The requested amount of hours has changed for each applicant since the application for internal review: for [YHPS], it is now 4.8 hours per day (1,752 hours per year): see AS [52]. For [KKTB] it is 4.86 hours per day (1,773.9 hours per year): AS [41]. For [XZJY] it is 4.1 hours per day (1,496.5 hours per year): AS [28].

29.    That ultimate issue includes a number of sub-issues that must be addressed.

30.    First, what are the relevant support(s) sought for each applicant? The respondent contends that the statutory text requires identifying each activity sought to be funded at RN rates, and cannot proceed at the level of generality of “hours of RN funding” per day or year.

31.    Secondly, whether, for each applicant, each such support:

(a)    will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations, as required by s 34(1)(a);

(b)    will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation, as required by s 34(1)(b);

(c)    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, as required by s 34(1)(c);

(d)    will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice, as required by s 34(1)(d).

(The respondent accepts that the criteria in s 34(1)(e) and (f) are satisfied.)

32.    The answers to those questions require consideration of the NDIS Rules, which are made under s 34(2) of the NDIS Act. In particular, rule 3.1 is relevant to the criterion in s 34(1)(a), and rules 3.2-3.3 are relevant to the criterion in s 34(1)(b). The respondent contends that, on the evidence before the Tribunal, none of s 34(1)(a), (b), (c) or (d) is satisfied. Other rules are relevant when considering financial sustainability of the Scheme, and the objective of the NDIS Act of ensuring people live independently.

…

Part E. Contentions – Common Issues

50.     It is important to note that it is not in dispute that each applicant requires full time care by DSWs. As set out above, this is already catered for by the combination of supports in the applicants’ current plans, and neither the content nor amount of DSW supports is in dispute. So far as specific care tasks are concerned, the issue is essentially whether any of the activities currently funded in the plans at DSW rates should instead be funded at the higher RN rate (for example, the rate for delivery of a health support for assistance with daily life by an RN in NSW during weekday daytime is $107.25 per hour, whereas for a DSW it is $55.47 per hour for activities of self-care14).

51.    Additionally, while the issue in dispute is sometimes expressed in terms to the effect of “hours of RN funding”,15 the evidence of A/Prof Wilson breaks this down into two separate kinds of support requested for each applicant, which must be assessed differently:

(a)    The first kind is what A/Prof Wilson describes as “Daily access to an RN for RN-specific tasks”, which seems to allow for there to be an RN available at Nardy House who can, if needed, perform certain tasks. A/Prof Wilson is implicitly of the view that these can only be provided by an RN. For clarity, these items — which constitute the vast majority of the amounts sought by the applicants — will be referred to as “Tasks”.

(b)    The second kind is what A/Prof Wilson describes as “Support and supervision of DSW administered care”, which he believes should be provided by an RN. There is some overlap between these supports, which will be referred to as “Supervision/Support”, and the supports that Ms Merran considers should be provided under the delegated care model. This will be addressed further below for each applicant.

52.    The number of hours for each applicant in each of these categories is:

(a)    for [YHPS], 21 hours per week for Tasks and 10.5 hours per week for Supervision/Support: see Wilson report ([YHPS]) Tab 6, p311 table 2;

(b)    for [KKTB], 21 hours per week for Tasks and 10.77 hours per week for Supervision/Support: see Wilson report ([KKTB]) Tab 6, p311 table 2;

(c)    for [XZJY], 15.75 per week for Tasks and 10.782 hours per week for Supervision/Support: see Wilson report ([XZJY]) Tab 7, p316 table 2.

154    The Tribunal applicants’ SFIC in Reply included:

Identification of the supports

11.    The second error of law and principle in the respondent’s position concerns the way that requested supports are to be identified. The respondent (at [30] of its SFIC) submits that “the statutory text requires identifying each activity sought to be funded at RN rates, and cannot proceed at the level of generality of ‘hours of RN funding’ per day or year.” This contention also appears in other parts of the respondent’s SFIC where, for example, it describes (at [14]) the “statutory task” as “identifying the disputed supports with precision, and then applying the legislative requirements to determine whether they are, or are not, reasonable and necessary.” At [51], the respondent submits that the supports cannot be identified as “the requested level of registered nurse supports”.

12.    Again, adopting this narrow view of the legislation would result in the Tribunal falling into error. This is because the respondent’s submission overlooks and does not refer to s 33(3) of the NDIS Act, which provides that supports “may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise.”

13.    The true test is the identification of a support that is consistent with the applicable principles in s 4, s 17A, s 31 and that is reasonable and necessary for the participant in their particular circumstances pursuant to s 34(1). It would be an error to proceed on an a priori assumption about the level of specificity required, particularly where the support to be specified is to be prepared “with” the participant. This approach reflects the Full Court’s statement in WRMF (at [202]) that “[h]owever s 34(1) is to be construed, it must be capable of application to the decision of each and every delegate who approves a plan under s 33(2), and to each and every plan approved… The criteria are straightforward and pragmatic. The decision‑maker’s approach is also entitled to be of the same kind.”

14.    A pragmatic and purpose-based approach to the identification of supports is also consistent with the Explanatory Memorandum for the Bill which became the NDIS Act, which explains (at page 17) in relation to s 33(3) that “[f]or example, one person’s plan might state that funding will be provided for the purchase of a particular model of wheelchair, while another person’s plan might state that funding is to be provided for the purpose of purchasing items to assist with mobility”. Ultimately, the level of specificity is a decision to be made “with” the participant in accordance with their particular circumstances. This reflects the principle in s 31(j) concerning the need for “tailored and flexible responses to the individual goals and needs of the participant”.

15.    In the circumstances of these three cases, the requested support is appropriately (and pragmatically) identified in terms of hours of registered nurse supports and the level of registered nurse supports needed. This is because the hours comprise (necessarily) an estimation of the amount of daily nursing support each participant needs in their specific circumstances. That estimation is based on Associate Professor Wilson’s clinical nursing judgment and takes into account observable regular need based on an assessment of chronic conditions and impairments, and also makes allowance for episodes of acute need and other vicissitudes that arise.

16.    As Associate Professor Wilson says in his reply report (at page 12), the ultimate purpose of his recommended support needs is to help [KKTB], [XZJY] and [YHPS] “have the greatest health status possible in order to live a full and rich life.”

…

Evidence relevant to s 34(1) criteria and the s 33(2) decision

36.    Before addressing the additional s 34(1) factors, the applicants make the following submissions about the evidence relating to the requested supports.

37.    The main evidence is that of Associate Professor Wilson and Ms Barbara Merran. At [7] of its SFIC, the respondent contends that, “[t]he applicants propound a clash between what it calls the two ‘models’ of care. Their expert, A/Prof Wilson, employs an academic analysis essentially to suggest that NHI’s preferred model is reasonable and necessary in its entirety, and anything less than this is somehow inadequate.” This statement does not quite reflect the nature of Associate Professor Wilson’s evidence or the sophistication of his analysis. Associate Professor Wilson in fact conducted for each participant a clinical nursing assessment and, in a series of tables and commentary in his original reports, analysed each participant’s impairments and circumstances to arrive at a clinical nursing judgment as to the registered nurse support needs for [KKTB], [XZJY] and [YHPS]. He also explains the nature of his assessments and the basis for his opinions to a significant level of granularity. Reflecting Associate Professor Wilson’s independent clinical judgment, his total recommended number of hours of registered nurse supports is materially fewer than what the applicants sought on internal review.

…

40    In contrast to Associate Professor Wilson’s evidence, Ms Merran’s report provides a blanket recommendation that each applicant should receive between 60 to 90 minutes a week of registered nurse supports (with [KKTB] receiving an extra hour a month for PEG tube maintenance). In arriving at this conclusion, Ms Merran does not explain how (if at all) she differentiates between the support needs and complex impairments for each participant (with the exception of [KKTB]’s PEG tube). As Associate Professor Wilson notes in his reply report (at page 4), “there is limited to no description or discussion in Ms Merran’s reports of the number and influence of the multiple chronic illnesses that [YHPS], [KKTB] and [XZJY] have”. Ms Merran’s analysis in Appendix 3 of her reports, where she adds a column to Table 1 of Associate Professor Wilson’s reports, does not assist. Unlike Professor Wilson’s analysis, which identifies specific impairments, corresponding support needs, and estimates the duration of time for providing the support, Ms Merran’s comments simply repeat “60 to 90 minutes” without grappling with the underlying analysis to explain her difference in opinion. Ms Merran does not address the analysis in any of the other tables in Associate Professor Wilson’s reports at all. Reading Ms Merran’s reports as a whole, it appears that her opinion as to the duration of required registered nurse supports does not reflect individualised clinical nursing assessment and judgment but rather her fundamental belief (at paragraph 64 of her report for [YHPS]) that:

“Registered Nurse Delegation is the correct and only successful method of service delivery for people with disabilities living in the community in Australia.” (Emphasis added.)

155    During opening submissions, counsel for the Tribunal applicants stated:

There is a debate between the respondent and the applicants about how the requested supports should be framed. In my submission, this is a case where the requested supports should be framed with pragmatism and with reality in mind. What I mean by that is this, it is unknowable what precise registered nursing support, exact registered nursing supports each of the participants will need every single day over the life of a 12-month plan. Professor Wilson doesn’t purport to give that sort of statement in [his] reports. What he does is to fact[or] in all of the relevant data points that he observed and he assessed, and he comes to a professional clinical judgment, which is an estimate of what is required. Having framed it that way, from the applicants’ point of view, the requested support is for an identifiable number of hours based on Professor Wilson’s professional estimation.

In my submission, that is an appropriate way of framing the support because (1) it’s how the applicants wish to frame it. (2) Section 33(2) respects, in my submission, how an applicant wishes to frame their requested supports. Because in its term section 33(2) refers to the making of a statement of participant supports with the participant, that has been approved by the CEO. It reflects the kind of pragmatic decision that should be made by this tribunal under section 43(1), which should as the Full Court said in WRMF, be replicable by every delegate decision maker within the agency. Because as I said at the beginning, Deputy President, the appropriate order if the applicants are successful in this case, is not a section 43(1) order that identifies, let’s say, a dozen registered nursing supports, and says, this is reasonable and necessary, this, this, this, and this. In my submission and what the applicants seek, is an order with the direction to the respondent saying, 4.1 hours, for example, of registered nurse supports is found to be reasonable and necessary within the meaning of section 34(1). In my submission, that is a perfectly orthodox and ultimately pragmatic finding and decision for the tribunal to make. That is the requested support on the applicants’ side.

156    So far as concerned the evidence of XZJY’s mother who was a registered nurse, counsel for the Tribunal applicants stated that “her nursing expertise is not relied upon in any way from an expert evidence point of view”.

157    During opening submissions, counsel for the Agency stated:

I think I may have already covered the last two points which I was going to make, which was just about how my friend talked about framing the requested supports, and framing them with pragmatism. We accept that when it comes to any wording, if you’re adverse to us in whole or part, one can talk about hours and nurse funding, one could also limit that to particular activities that are in your view reasonable and necessary if some of them are, and we say you’ll certainly be of the view that some of them are not reasonable and necessary under any circumstances. That is a way of characterising what the plan will say and what the funding is said to be for but the - we say we’re approaching this with pragmatism. One has to apply section 34(1) to each support. One can’t do that in the abstract and say there are some hours, do we think these hours are necessary? You need to go to the next level and say the hours are made up of the following components. Is this component necessary? Is this component necessary? That’s the only way one can test supports in a way that complies with the statutory regime and I think that also deals with the point about just because the applicants choose to frame the supports in a particular way, doesn’t mean the tribunal is bound to accept that and as Mortimer J said, might find some other support is reasonable and necessary, and that’s the case of saying well they framed it as four and a half hours of nurse support. I think one hour of registered nurse support is sufficient. That is you’re not bound obviously by the form in which the support is an all or nothing manner.

158    As I read the material, the Tribunal applicants’ case was conducted on a basis which included the following:

(1)    First, the Tribunal applicants relied principally, if not exclusively, upon the evidence of Associate Professor Wilson on the question of the number of hours of registered nurse support which should be funded for each of the three applicants.

(2)    Secondly, the Tribunal applicants cautioned against “framing” the funding by reference to identified supports rather than by reference to total hours of registered nursing support, because the identification of specific tasks and how long those tasks would take was undertaken by Associate Professor Wilson in order to estimate the total number of hours of registered nursing support which would likely be needed rather than the “exact registered nursing supports each of the participants will need every single day over the life of a 12-month plan”.

159    Associate Professor Wilson was extensively cross-examined in an endeavour to show that his estimates were unreliable. This was unsurprising given the reasoning in his report and the way in which parties had identified their cases in the SFICs. The Agency put forward detailed and carefully referenced written submissions and it addressed those submissions orally. There was nothing unusual or unhelpful about the 19 pages of submissions which dealt concisely with facts common to each of the three cases and with the facts specific to each of the three cases. Indeed, in a context where there were three sets of proceedings, the submissions were relatively concise.

160    This Court was not invited to descend into the merit of the submissions which had been put to the Tribunal, apart from being invited to conclude that the submissions were submissions of sufficient substance for the Tribunal to have been obliged to evaluate them.

161    The submissions which had been put to the Tribunal raised matters of substance. An example, related to the review concerning KKTB, is as follows. Associate Professor Wilson had estimated that somewhere between 260 and 284 minutes of registered nurse care per day were required. The calculation was made by reference to specific tasks. About a third of the total, namely 90 minutes, was allocated to monitoring for choking risk during each of three meals. Associate Professor Wilson acknowledged that KKTB did not have a choking risk and that the entry had been included in error because he had cut and pasted it from a table relating to YHPS. Associate Professor Wilson did not accept that he should reduce the total number of hours he had estimated despite accepting that his estimate of 260 minutes was reached by taking into account 90 minutes which had been included in error.

162    The issue for the purposes of Ground 3(a) is not whether Associate Professor Wilson’s evidence as to the total number of hours could have been or should have been accepted notwithstanding the concessions made in cross-examination or the criticisms made in submissions. Rather, the issue is whether the Tribunal was obliged to consider and evaluate the clearly articulated submissions of substance which had been made concerning his evidence and, if so, whether it did.

163    Principles relevant to Ground 3(a) include the following:

(1)    The obligation to afford procedural fairness includes an obligation to evaluate a submission of substance: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [24]; SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; 317 ALR 365 at [75]. Put another way, an opportunity to be heard extends beyond an opportunity to make submissions; it requires that a decision-maker hear and take the submissions into account: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [389]; Khawaja v Attorney-General (Cth) [2022] FCA 334 at [93].

(2)    Further, leaving procedural fairness aside, the statutory obligation on the part of the Tribunal to conduct a review of an application made in accordance with s 103 of the NDIS Act requires evaluation of submissions of substance made in the review – see, in a different statutory review context: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [44], [49], [50]; SZSSC at [76].

(3)    The evaluation referred to in (1) and (2) above must be a real evaluation. The decision-maker must engage with the submission of substance.  I note in this regard the words of caution in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 at [26]. The degree to which a particular administrative decision maker must evaluate submissions depends on the particular statutory context and the length, clarity and relevance of the submissions – see, in a different statutory context: Plaintiff M1 at [25].

(4)    A failure to afford procedural fairness and a failure to conduct a review of the kind required by statute both found a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth): Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [202].

(5)    Where such an issue is raised on a s 44 appeal, as it is here, the role of the Court is to determine the lawfulness and not the merits of the decision.  An assessment of whether a decision-maker has genuinely engaged with a submission must not devolve into an examination of the merits or whether the outcome is thought to be correct. 

(6)    If the Court concludes that a submission of substance was ignored, then error will generally be established because there is likely to have been a denial of procedural fairness or a failure to conduct the review contemplated by the statute. If the submission was not ignored, it is more difficult to establish error. This is because the acceptance or rejection of submissions, or the particular weight to be given to a particular matter, are matters for the decision-maker and generally go to the merits rather than the lawfulness of the decision: Donohue v Westin [2022] VSC 37. 

(7)    The question of fact, whether the Tribunal evaluated a submission, is resolved by reference to all of the relevant circumstances, including in particular inferences to be drawn from the statement of reasons for decision assessed in the context of the applicable statutory obligation to provide reasons, here relevantly s 43(2) and s 43(2B) of the AAT Act. Where there is a statutory obligation to provide reasons, and depending on the precise terms of the obligation, the Court is entitled to infer that a matter not mentioned in the reasons was not considered to be material: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [5], [9]-[10] (Gleeson CJ), [44] (Gaudron J) and [69] (McHugh, Gummow and Hayne JJ). Reasoning in this way is not mandatory: SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; 150 ALD 34 at [19]-[20] (Perram J).

(8)    Reasons of administrative decision-makers should be read in a common-sense manner and not be construed minutely with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-2. The application of these observations depends on the nature of the decision-making body and the circumstances. One might bring greater practicality to bear in relation to a non-legally trained high volume administrative decision-maker than a statutory tribunal delivering reasons pursuant to a statutory obligation after a full hearing with the assistance of counsel: Stojic v Deputy Commissioner of Taxation [2018] FCA 483 at [104]; Endeavour Coal Pty Limited v Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 764; 206 FCR 576 at [36]. The reasons of an administrative decision-maker are to be read fairly and in a balanced way. A fair and balanced reading of reasons “should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party’s case”: Soliman v University of Technology, Sydney [2012] FCAFC 146; 207 FCR 277 at [57] (Marshall, North and Flick JJ).

164    I agree with Mortimer and Abraham JJ that care must be taken not to impose undue burdens about the level of detail required in reasons for decision of a busy merits review Tribunal. On the other hand, everyone is entitled to have their case considered and evaluated on merits review to the extent contemplated by the particular statutory scheme of review and, if a fair reading of the Tribunal’s reasons reveals that a central aspect of a party’s case was not sufficiently considered, the Court should not shy away from so concluding – see: Soliman at [57] referred to at [163(8)] above.

165    In its reasons concerning XZJY at [107] (an equivalent paragraph is contained in the reasons concerning the other two applicants), the Tribunal referred to the cross-examination of Associate Professor Wilson:

Associate Professor Wilson was questioned concerning the calculations in his report, based on minutes, for various activities which led him to conclude that Ms A needed the support of a Registered Nurse for two hours and six minutes per day. It is unnecessary that a determination of what is “reasonable and necessary” rely on such minute detail. Based on his experience and his careful assessment of the individual needs of Ms A, I accept his evidence as to the amount of Registered Nurse care required by Ms A. In contrast, Ms Merran made her estimate based on a unit of 30 minutes.

166    Different inferences can be drawn from this passage when read in the context of the reasons as a whole. These include:

(a)    The passage could be understood as expressing the conclusion that, notwithstanding the evidence of Associate Professor Wilson in cross-examination concerning his estimate of the total number of hours, the Tribunal nevertheless accepted his total estimate.

(b)    The passage could be understood as indicating that the Tribunal considered it unnecessary to look at the criticisms which had been made because Associate Professor Wilson’s estimate did not have to be based on an analysis of individual tasks.

167    If the correct inference is something along the lines of (a), then one is left not knowing why that conclusion was reached. One does not know, for example, whether the Tribunal accepted some of the concessions given in cross-examination, but had some other basis for concluding that the total should nevertheless be accepted. The preference of Associate Professor Wilson’s evidence over Ms Merran’s evidence did not have the necessary consequence that Associate Professor Wilson’s evidence had to be accepted in whole or in part.

168    With some hesitation, I have concluded that the Tribunal considered it did not need to address the specific criticisms of Associate Professor Wilson’s evidence which had been made by the Agency and therefore did not evaluate those submissions. I reach this conclusion, in particular having regard to the second sentence of [107], which stated: “It is unnecessary that a determination of what is ‘reasonable and necessary’ rely on such minute detail”. It may be accepted that Associate Professor Wilson could have provided an estimate of the total number of hours without descending into the detail of specific tasks, as the Tribunal suggested. He did not. Quite properly, he exposed his reasoning for his estimate. The Agency’s case included a substantial case that the estimates were unsound for reasons which had been clearly and concisely articulated in the Agency’s submissions, with pinpoint references to the evidence relied upon. The Tribunal did not refer to any aspect of the submissions which the Agency had advanced in this respect. It did not address any of them in its reasons, either expressly or by implication.

169    As Mortimer and Abraham JJ have observed, “there was no aspect of the Agency’s merits review case which loomed larger than its attack on Associate Professor Wilson”. A central focus of that attack was that Associate Professor Wilson’s estimates were unreliable and should be rejected for the detailed reasons advanced by the Agency. One would ordinarily expect such a central aspect of a party’s case to be addressed, even if briefly, in the reasons.

170    An explanation for why the Tribunal may not have considered the Agency’s submissions might lie in its rejection of part of the Agency’s case. As noted earlier, the Agency’s case involved the proposition that, in applying the relevant statutory provisions, one had to analyse separately each individual support rather than looking at the matter by reference to the total number of hours of registered nurse support. The Tribunal applicants submitted that such an approach was erroneous. The Tribunal accepted the Tribunal applicants’ case in this respect. As noted earlier, the Tribunal was entitled to approach the matter by reaching a conclusion that registered nurse support of a certain number of hours was a “reasonable and necessary support”. Contrary to the case put by the Agency to the Tribunal and to this Court on appeal, the Tribunal was not obliged to approach the matter on the basis that each individual task identified by Associate Professor Wilson had to be addressed under the statute as a separate support requiring separate analysis. The rejection of this aspect of the Agency’s case did not involve a necessary rejection of the Agency’s case that, quite apart from that issue, Associate Professor Wilson’s total estimate was unsound. It is this second aspect of the Agency’s case with which I consider, on balance, the Tribunal did not engage. This was a central issue which should have been addressed as a matter of procedural fairness and in order fully to discharge the function of review.

CONCLUSION

171    I would allow the appeal on Ground 3(a).

Associate:

Dated:    17 November 2022