Federal Court of Australia

Klewer v National Disability Insurance Agency [2023] FCA 630

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Administrative Appeals Tribunal be set aside.

3.    The matter be remitted to the Tribunal for determination according to law.

4.    The respondent pay the applicant’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

RAPER J

Introduction

1    The applicant (Mr Klewer) experiences seizures, vision impairment, anxiety and other disabilities. These impairments stem from surgeries Mr Klewer underwent at age four to remove a brain tumour. Mr Klewer sought various forms of support from the National Disability Insurance Agency. Mr Klewer appeals a decision of the Administrative Appeals Tribunal, made on 30 March 2022: Klewer and National Disability Insurance Agency [2022] AATA 566 (T). By this decision, the Tribunal affirmed a decision of the NDIA to not provide funding under the National Disability Insurance Scheme for Mr Klewer that would be used to pay Mr Klewer’s mother (Ms Klewer) to provide Mr Klewer with overnight care (specifically, 10 hours per night for seven nights each week): at T[11]. The Tribunal affirmed the NDIA’s decision on the basis that the requested support was not “reasonable and necessary” within the meaning of s 34 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).

2    By way of amended notice of appeal filed on 21 October 2022, Mr Klewer “appeals” from the entirety of the Tribunal’s decision on the basis that the Tribunal: (a) took into account an irrelevant consideration (ground 1), (b) failed to take into account a relevant consideration (ground 6), (c) failed to afford procedural fairness to Mr Klewer (grounds 2 and 4) and (d) failed to apply the correct legal test in making certain findings (grounds 3 and 5).

3    Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides for an “appeal” from a decision of the Tribunal “on a question of law”. Such proceedings engage this Court’s original jurisdiction, hence why Mr Klewer is described as the “applicant” rather than “appellant”: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 581 (Bowen CJ and Deane J); Committee of Direction of Fruit Marketing v Australian Postal Commission (1980) 144 CLR 577 at 585 (Mason and Wilson JJ).

4    For the following reasons, I have determined to allow the appeal on the basis that the second ground is made out.

Background

5    Relevant to this appeal is Mr Klewer’s NDIS plan which commenced on 31 May 2018. Mr Klewer submitted a “Plan Review Request Form” dated 13 July 2018, which would require a delegate of the CEO of the NDIA to re-assess Mr Klewer’s NDIS plan. Mr Klewer requested that his NDIS plan be varied such that (1) his plan can be self-managed, and (2) extra funding be provided so that Ms Klewer (as opposed to a support worker) can provide overnight care support to Mr Klewer (the internal review request).

6    On 23 July 2018, a response to the internal review request was provided, in which the NDIA affirmed the original NDIS plan under s 100 of the NDIS Act (internal review decision). The delegate was “not satisfied that self-management poses no risk” to Mr Klewer, noting the requirement that a participant should not self-manage a plan where the CEO is satisfied that self-management would present an unreasonable risk to the NDIS participant (pursuant to s 44 of the NDIS Act and the National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth)). The delegate also appears to not have been satisfied that the additional requested supports were consistent with the criteria contained within s 34 of the NDIS Act.

7    Also on 23 July 2018, Mr Klewer lodged an application for review of the delegate’s decision before the Tribunal. Mr Klewer described his perceived errors in the delegate’s decision as follows:

1.     The decision to refuse me to self-manage my NDIS plan is wrong because there was enough evidence to support that we [my nominee], can perfectly manage the plan. I need an urgent hearing for this as at the moment my NDIS Plan is dormant and service providers who provided services per plan need to get paid.

2.     The decision to refuse NDIS payment for certain services by way of Family Support, dlivered [sic] by my nominee mother was wrong as there was sufficeint [sic] evidence toward the required criteria regarding the Exceptional Circumstances case and further evidence was ignored and requests to acknowledge such further evidence were also not responded to.

Overview of the legislation

8    There are two legislative schemes relevant to this appeal: first, the NDIS Act and, secondly, the AAT Act. The parties agreed that the applicable compilations of both the NDIS Act and the AAT Act were those in force at the time of the Tribunal’s decision on 30 March 2022.

9    With respect to the NDIS Act, s 3 sets out the objects of the NDIS Act, and s 4 identifies the general principles that guide actions taken under the NDIS Act. Both provisions are extracted as follows:

3     Objects of Act

(1)     The objects of this Act are to:

(a)     in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and

(b)     provide for the National Disability Insurance Scheme in Australia; and

(c)     support the independence and social and economic participation of people with disability; and

(d)     provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and

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

(f)     facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and

(g)     promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and

(ga)     protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and

(h)     raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability; and

(i)     in conjunction with other laws, give effect to certain obligations that Australia has as a party to:

(i)     the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23); and

(ii)     the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5); and

(iii)     the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4); and

(iv)     the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9); and

(v)     the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40).

Note:     In 2013, the text of a Convention or Covenant in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

(2) These objects are to be achieved by:

(a)     providing the foundation for governments to work together to develop and implement the National Disability Insurance Scheme launch; and

(b)     adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability; and

(c)     establishing a national regulatory framework for persons and entities who provide supports and services to people with disability, including certain supports and services provided outside the National Disability Insurance Scheme.

(3)     In giving effect to the objects of the Act, regard is to be had to:

(a)     the progressive implementation of the National Disability Insurance Scheme; and

(b)     the need to ensure the financial sustainability of the National Disability Insurance Scheme; and

(c)     the broad context of disability reform provided for in:

(i)     the National Disability Strategy 2010-2020 as endorsed by COAG on 13 February 2011; and

(ii)     the Carer Recognition Act 2010; and

(d)     the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.

4     General principles guiding actions under this Act

(1)     People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.

(2)     People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.

(3)     People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.

(4)     People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.

(5)     People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.

(6)     People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation.

(7)     People with disability have the same right as other members of Australian society to pursue any grievance.

(8)     People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.

(9)     People with disability should be supported in all their dealings and communications with the Agency and the Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.

(10)     People with disability should have their privacy and dignity respected.

(11)     Reasonable and necessary supports for people with disability should:

(a)     support people with disability to pursue their goals and maximise their independence; and

(b)     support people with disability to live independently and to be included in the community as fully participating citizens; and

(c)     develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.

(12)     The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.

(13)     The role of advocacy in representing the interests of people with disability is to be acknowledged and respected, recognising that advocacy supports people with disability by:

(a)     promoting their independence and social and economic participation; and

(b)     promoting choice and control in the pursuit of their goals and the planning and delivery of their supports; and

(c)     maximising independent lifestyles of people with disability and their full inclusion in the community.

(14)     People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme.

(15)     Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.

(16)     Positive personal and social development of people with disability, including children and young people, is to be promoted.

(17)     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:

(a)     the progressive implementation of the National Disability Insurance Scheme; and

(b)     the need to ensure the financial sustainability of the National Disability Insurance Scheme.

10    The matters that must be included in an NDIS participant’s plan are set out in s 33 of the NDIS Act:

33     Matters that must be included in a participant’s plan

(1)     A participant’s plan must include a statement (the participant’s statement of goals and aspirations) prepared by the participant that specifies:

(a)     the goals, objectives and aspirations of the participant; and

(b)     the environmental and personal context of the participant’s living, including the participant’s:

(i)     living arrangements; and

(ii)     informal community supports and other community supports; and

(iii)     social and economic participation.

(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 review 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.

(3)     The supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise.

(4)     The CEO must endeavour to decide whether or not to approve the statement of participant supports as soon as reasonably practicable, including what is reasonably practicable having regard to section 36 (information and reports).

(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.

(6)     To the extent that the funding for supports under a participant’s plan is managed by the Agency, the plan must provide that the supports are to be provided only by:

(a)     for supports provided to a participant in a participating jurisdiction—a registered NDIS provider; or

(b)     otherwise—a registered provider of supports.

(7)     A participant’s plan may include additional matters, including such additional matters as are prescribed by the National Disability Insurance Scheme rules.

Note:     For example, a participant’s plan may include arrangements for ongoing contact with the Agency.

(8)     A participant’s statement of goals and aspirations need not be prepared by the participant in writing, but if it is prepared other than in writing, the Agency must record it in writing.

Note:     Section 38 requires a copy of a participant’s plan to be provided to him or her.

11    When determining whether a requested support is “reasonable and necessary”, regard must be had to the factors set out in s 34 of the NDIS Act, which is extracted 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).

Summary of the Tribunal’s reasons

12    The Tribunal began by noting that, when Mr Klewer’s application for review was lodged, there were other supports in issue and that these had been resolved prior to the hearing before the Tribunal (namely whether Mr Klewer’s plan could be managed by Ms Klewer and whether other identified supports are to be funded by the NDIS: see T[10]. The Tribunal also noted that since Mr Klewer’s application for review before the Tribunal was lodged, there had been several further decisions made by the NDIA pursuant to s 42D of the AAT Act: at T[11].

13    With respect to Mr Klewer himself, the Tribunal noted that during the hearing, he “did not give oral evidence”; however, the Tribunal did not draw an adverse inference against Mr Klewer for not giving oral evidence: at T[24].

14    The Tribunal then identified the primary issue to be determined as being “whether overnight care for 10 hours per night 7 days per week is a reasonable and necessary support for Mr Klewer, and, if so, whether Ms Klewer should be funded to provide that support”: at T[28].

15    The Tribunal summarised the contentions for each party: at T[29]–[33]. In short, Mr Klewer claimed that because he suffers from frequent and serious seizures which may lead to injury, he requires overnight monitoring and medication, and the only person who can provide that overnight care is Ms Klewer: at T[29]–[30]. The NDIA submitted that the Tribunal cannot be satisfied that overnight care provided by Ms Klewer is reasonable and necessary for the purposes of s 34(1) of the NDIS Act, given the lack of evidence regarding the nature and seriousness of Mr Klewer’s seizures and the lack of “exceptional circumstances” which would allow family members of NDIS participants to provide paid support: at T[31].

16    The Tribunal proceeded to summarise the evidence and its findings, including the evidence of Mr Klewer (at T[41]–[45]) and Ms Klewer (at T[46]–[51]). The Tribunal noted that Mr Klewer referred to reports from various neurologists (at T[52]). The neurologists, according to the Tribunal, accepted that Mr Klewer had epilepsy resulting from the surgery he had as a child to remove a brain tumour, and due to an accident which occurred in 2006: at T[55]. The Tribunal also noted the evidence of Professor Somerville (at T[55]), which confirmed that in certain circumstances stress could provoke Mr Klewer’s seizures. The Tribunal also summarised the evidence of Dr Spira (one of the neurologists) as follows (at T[56]):

The reports indicate that Mr Klewer was involved in an altercation with the police in January 2015, and according to Dr Spira ‘[I]t does not appear that there are any immediate sequalae to that incident but I was informed that in August, September and October of that year [Mr Klewer] suffered a string of seizures which [Ms Klewer] outlined was of the order of 6 attacks’. While Ms Klewer described Mr Klewer as experiencing tonic-clonic seizures at that time, Mr Klewer himself told Dr Spira that he was awake during the episodes which Dr Spira considered ‘very difficult to reconcile with tonic-clonic convulsions’. Dr Spira noted that Mr Klewer attributed the seizures to stress and observed that when he sought further detail as to what Mr Klewer was referring to in that regard, Mr Klewer responded that ‘[Ms Klewer] pisses me off at times’. Ultimately Dr Spira concluded that he would ‘never associate’ Mr Klewer’s consciousness during the seizures with tonic-clonic seizures and ‘that there appears to be very powerful psychological triggers to the attacks’, that he ‘wonders whether some of the episodes may be psychogenic rather than representing epilepsy’, and that it is important to resolve the nature of the seizures by administering EEG telemetry.

(Footnotes omitted.)

17    The Tribunal found that an EEG was administered between 12 and 14 March 2018. This test was done following uncertainty as to whether Mr Klewer was experiencing seizures or pseudo-seizures: see T[57]. The time required to complete this test was seven days, however Mr Klewer discharged himself after two days, and refused to cease taking anticonvulsant medication prior to the test. No seizure activity was recorded during the period of observation: at T[58]. The Tribunal also found that Mr Klewer had no regular or scheduled appointments with a neurologist: at T[65]. Ms Klewer provided other evidence to demonstrate the frequency and intensity of Mr Klewer’s seizures, including diary entries (at T[66]), hospital and ambulance records (at T[67]), and several other documents including from the Pharmaceutical Benefits Scheme and Medicare, NSW Ambulance, the Coffs Harbour Health Clinic, and a “Seizure Action Plan” (at T[68]).

18    The Tribunal also summarised the evidence of Ms Burford (Epilepsy Nurse Specialist) (at T[79]–[87]), Mr Lucas (Psychologist) (at T[88]–[99]), Dr Wong (Clinical Neuropsychologist) (at T[100]–[101]), Ms Evans (Occupational Therapist) (at T[102]–[104]) and Dr Choi (Psychiatrist) (at T[105]–[107]).

19    The Tribunal placed weight on evidence given by Dr Ashkar (Neuropsychologist). Dr Ashkar provided evidence on behalf of the NDIA and gave oral evidence at the hearing before the Tribunal (at T[108]). The conclusion contained in paragraph [28] of Dr Ashkar’s report was extracted by the Tribunal as follows (at T[110]):

Anxiety is common in seizure disorders and Mr Klewer’s anxiety in relation to his seizures (if indeed he is having seizures) is closely tied to his very limited sense of self-efficacy (i.e., his limited sense of control over his seizures and/or his life more generally). Increasing his sense of self-efficacy will be an important focus of his psychological treatment in helping him to manage his anxiety. [Ms Klewer’s] dominance and control (I do not use these words lightly) of his care needs (no matter how well intentioned she may be) limits his sense of self efficacy (and ultimately his dignity by compromising his independence) and this will have serious implications for his psychological health into the future if not addressed today. Mr Klewer and [Ms Klewer] are therefore encouraged to engage in counselling that fosters a healthy and mutual understanding of his need to achieve greater autonomy and independence into the future, with or without [Ms Klewer] or a partner to take care of him.

20    Taking all the evidence into account, the Tribunal made the following findings:

(a)    The Tribunal and the NDIA accepted that Mr Klewer experiences seizures; however, there was not sufficient evidence before the Tribunal to identify the precise type of seizures that Mr Klewer suffered: at T[117].

(b)    Mr Klewer has not experienced serious seizure activity since a medication change took effect in May 2021: at T[118].

(c)    Given that a change in medication dosage recommended in November 2020 did not take effect until May 2021, coupled with the fact that Mr Klewer does not participate in a regular regime of neurology review, the Tribunal questioned the “rigour with which Mr Klewer’s impairments are managed”, and whether his seizures do pose the level of risk and are as serious as claimed by Ms Klewer: at T[119].

(d)    Almost all the evidence of Mr Klewer’s seizures came from Ms Klewer, who does not have qualifications to appropriately assess the nature and frequency of Mr Klewer’s seizures: at T[120].

(e)    The Tribunal took issue with the evidence of practitioners who had treated Mr Klewer. With respect to Ms Burford and Mr Lucas, the Tribunal found that neither of them had witnessed Mr Klewer experiencing a seizure, and that Mr Lucas was not qualified to comment on the nature or frequency of Mr Klewer’s seizures: at T[121]. The Tribunal also found that Ms Evans, Dr Choi or Mr Lucas were not qualified to assess the nature and severity of Mr Klewer’s seizures, nor the treatment he requires: at T[124].

(f)    The reports, taken together, show that reporting of Mr Klewer’s seizure activity has not been consistent over time: at T[122].

(g)    The Tribunal accepted that evidence from hospital records indicates that Mr Klewer was admitted to hospital between 2017 until before 2021, however the only evidence of hospital admissions in 2021 was from Ms Klewer’s diary. The Tribunal found that the ambulance records record only five separate seizure episodes witnessed by paramedics or hospital staff between 21 March 2017 and 14 November 2020. It was not possible for the Tribunal to verify the other seizures recorded in Ms Klewer’s diary: at T[126].

(h)    There was evidence before the Tribunal which suggested that a seizure monitoring device should be trialled: at T[127].

21    Given the above, the Tribunal concluded that it was not satisfied as to the nature or frequency of Mr Klewer’s seizures, and as such, it was not possible to be satisfied that Mr Klewer required overnight care: at T[128].

22    The Tribunal then made findings regarding whether the requested support satisfied the criteria in s 34(1) of the NDIS Act.

Section 34(1)(a): Whether the support will assist Mr Klewer to pursue the goals, objectives and aspirations included in his statement of goals and aspirations

23    With respect to s 34(1)(a), Mr Klewer’s goals included the following (at T[129]):

•    I would like to learn daily living skills and be as independent as I am able in all daily living tasks

•    I would like to be more social and build relationships with people in my community.

•    I would like to access the therapies and equipment that I need so that I can live a healthy and supported life.

•    I would like to reduce my seizures and live functionally without epilepsy.

•    I would like to live a safe and healthy life where my health is managed properly.

24    The Tribunal did not consider that Ms Klewer’s evidence regarding independence was consistent with Mr Klewer’s goals. The Tribunal, amongst other evidence, accepted Dr Ashkar’s findings regarding “the importance of Mr Klewer developing independence and the barriers in that regard presented by Ms Klewer”: at T[130].

25    With respect to Mr Klewer’s goal to reduce his seizures, the Tribunal noted that the evidence from Mr and Ms Klewer suggested that stress and anxiety contribute to Mr Klewer’s seizures. The Tribunal noted Dr Spira’s report as follows (at T[133]):

Dr Spira’s report dated 12 October 2017 includes that Mr Klewer stated that ‘stress is an important trigger to the turns’, and that when asked by Dr Spira to specify what he meant by that Mr Klewer responded, ‘my mother pisses me off sometimes’. Dr Spira went on to report that ‘it appears that when he is angry, he suffers the episode [sic] and [Mr Klewer] stresses his heart races on each occasion’.

(Footnotes omitted.)

26    The Tribunal again considered the evidence of Dr Ashkar in considering whether the requested support would help reduce Mr Klewer’s seizures:

135.     Dr Ashkar considers that Mr Klewer’s ‘anxiety in relation to his seizures is closely tied to his very limited sense of self-efficacy’, and that ‘increasing his sense of self efficacy will be an important focus of his psychological treatment in helping to manage his anxiety’. Dr Ashkar links Ms Klewer’s ‘dominance and control’ of [Mr Klewer’s] care needs to a diminution of his sense of self efficacy ‘and ultimately his dignity by compromising his independence’ and considers that this will have serious implications for his psychological health into the future if not addressed today. Mr Lucas also relates Mr Klewer’s anxiety at least in part to Ms Klewer’s actions, for example that some of Ms Klewer’s expressed concerns tend to provide reinforcement for Mr Klewer’s generalised anxiety disorder and his hypervigilance and Ms Klewer’s ‘regular debriefing of these struggles with [Mr Klewer] does tend to add to his fears about the world and to his anxiety levels…’ Mr Lucas also refers to Ms Klewer’s dominant parenting style. Overall Mr Lucas’s evidence is inconsistent, as in contrast to the aforementioned he agreed in oral evidence with Ms Klewer that the care she provides reduces Mr Klewer’s anxiety, which in turn reduces the incidence of seizures, thus minimising risks of injury and to Mr Klewer’s general health.

136.     In this instance I place greater weight upon the evidence of Dr Ashkar than that of Mr Lucas notwithstanding that Ms Klewer considered that Dr Ashkar was not independent, and that Mr Klewer had been referred to Dr Ashkar as an expert in determining whether someone was ‘faking’. Mr Lucas gave inconsistent evidence and appeared to be impressionable to suggestions by Ms Klewer. Dr Ashkar gave consistent evidence and impressed as a reliable, objective and considered witness.

(Footnotes omitted.)

27    The Tribunal also found that Mr Klewer had not experienced serious seizure activity since May 2021 following adherence to an updated medication regime: at T[137]. Accordingly, the Tribunal was not satisfied that funding Ms Klewer to provide overnight care would assist Mr Klewer in pursuing his goals and aspirations.

Section 34(1)(b): Whether the support will assist Mr Klewer to undertake activities so as to facilitate his social and economic participation

28    The Tribunal was not satisfied that the provision of overnight care by Ms Klewer would assist Mr Klewer to undertake activities so as to facilitate his social and economic participation. The Tribunal made the following remarks (at T[140]):

The Respondent contended that if care were to be provided by Ms Klewer it reduces the opportunity for Mr Klewer to meet and form relationships with other carers which will expand his opportunities for social interactions and encourage him to think about other opportunities including employment opportunities. I note that Mr Klewer currently works at a market and with Ms Klewer at a nursery. There is no suggestion that this will be curtailed if Ms Klewer does not provide overnight care for Mr Klewer. However, undertaking further activities so as to facilitate social and economic participation will be affected by the level of independence Mr Klewer is able to achieve, which as noted in Dr Ashkar’s evidence, which I prefer, is affected by his sense of self efficacy and autonomy. Therefore, I cannot be satisfied that Ms Klewer providing overnight care for Mr Klewer will assist him to undertake further activities, so as to facilitate his social and economic participation.

(Footnotes omitted.)

Section 34(1)(c): 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

29    The Tribunal rejected Ms Klewer’s submission that it would be more expensive for overnight care to be provided by someone else, and was likely to be of little benefit and could potentially be harmful. The Tribunal rejected this submission based on its finding that Mr Klewer does not require overnight care: at T[143]. The Tribunal accepted the NDIA’s submission that given there is no medical evidence supporting the need for overnight monitoring, should overnight care be necessary, there are lower-cost alternatives such as a seizure watch: at T[144]. The Tribunal considered that funding Ms Klewer to provide overnight care does not represent value for money, in that “the costs are not reasonably [sic] relative to both the benefits achieved and the cost of the alternative support”: at T[145].

Section 34(1)(d): Will the support be, or is it likely to be, effective and beneficial, having regard to good practice?

30    The Tribunal did not accept Ms Klewer’s submission that her provision of overnight care reduces Mr Klewer’s anxiety. The Tribunal noted that it preferred the evidence of Dr Ashkar, who concluded that Mr Klewer’s anxiety is “exacerbated by the lack of independence, self-efficacy, and autonomy”: at T[148].

31    The Tribunal also concluded that there was insufficient evidence for it to be satisfied as to the nature of Mr Klewer’s seizures, and that there was no evidence from a neurologist to support the need for overnight care: at T[150]. Further, based on Dr Ashkar’s evidence, the Tribunal found that the remaining evidence does not seem to support that having overnight care will enhance Mr Klewer’s independence in any way: at T[150].

32    The Tribunal also dealt with Ms Klewer’s submission that Mr Klewer’ wishes should be respected. Whilst the Tribunal acknowledged that Mr Klewer “has consistently expressed the view that he wants Ms Klewer and no one else to be his night time carer”, he also expressed to Dr Spira that his mother “pissed him off sometimes”. Given the same, the Tribunal found that, based on the evidence of Dr Askar regarding Mr Klewer’s lack of self-efficacy, coupled with the “dominance and control” exerted by Ms Klewer over Mr Klewer, it could not “be satisfied as to the extent to which this view is one genuinely held by Mr Klewer, rather than one imposed upon him by Ms Klewer”: at T[151].

33    The Tribunal also made findings with respect to Mr Klewer’s medication: at T[152]–[153].

34    Given the evidence in its entirety, the Tribunal was not satisfied that Ms Klewer providing overnight care to Mr Klewer would be effective and beneficial having regard to current good practice: at T[154].

Sections 34(1)(e) and 34(1)(f): the funding takes into account what is reasonable to expect families, carers, etc. to prove, and whether the support is most appropriately funded through the NDIS

35    The Tribunal considered these criteria together given the way the NDIA’s submissions were structured. It observed the following with respect to s 34(1)(e):

160.     As is set out above, I do not consider that Mr Klewer requires overnight care from Ms Klewer. If any overnight monitoring is needed it can occur by way of low-cost assistive technology. Mr Klewer’s submission regarding supports in other matters as set out in paragraph [158], the Tribunal does not consider the supports provided to participants in other matters is relevant. The Tribunal accepts that Ms Klewer considers that she has acted with courage and that epilepsy is a serious condition, and that generally, in accordance with Ms Burford’s evidence, there is risk. However, the evidence in this matter is that Mr Klewer’s epilepsy is now well controlled since his increase in medication and his other submissions related to these criteria are not supported by the evidence or findings.

161.     Therefore, I cannot be satisfied that the funding sought by him takes account of what it is reasonable to expect families, carers, informal networks, and the community to provide, and it is accordingly not necessary to make findings about the other submissions made.

36    With respect to s 34(1)(f), the Tribunal found as follows (at T[162]):

Similarly, with respect to whether the support is most appropriately funded by the NDIS, and 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 – clearly if Mr Klewer requires an ambulance that is the purview of the health system. However, beyond that, given that I am not satisfied that overnight care is needed I am unable to be satisfied that the support sought is most appropriately funded through the NDIS.

Operational Guidelines

37    The Tribunal also dealt with Ms Klewer’s submission that cl 11.1 of the Operational Guidelines applies, and that there are exceptional circumstances which warrant the NDIA funding Ms Klewer to provide overnight care to Mr Klewer. The Tribunal reiterated its earlier finding that overnight care was not reasonable and necessary and, as such, the question of whether Ms Klewer should be funded to provide that care did not arise: at T[163].

38    Nonetheless, the Tribunal still considered Ms Klewer’s submissions on this point. Ms Klewer submitted that Mr Klewer’s privacy and dignity would be risked if another person provided overnight care, and that her cultural background meant that she could not allow another person to watch Mr Klewer in the evening. Ms Klewer also submitted that Mr Klewer would be at high risk of harm if others provided care for him overnight: at T[162].

39    The Tribunal made the following findings with respect to Ms Klewer’s submissions (at T[166]):

With respect to Mr Klewer’s submissions I make the following observations. There is no independent evidence regarding the cultural considerations Ms Klewer raises. There is no objective evidence that Mr Klewer would be at risk of harm or neglect if not attended by Ms Klewer overnight – if overnight care were necessary, which I have found it is not. Ms Klewer’s other submissions regarding ‘exceptional circumstances’ are already dealt with in the reasons above – that, should overnight monitoring be required, Mr Klewer’s privacy and dignity can be preserved by the use of assistive technology. Based on the findings set out in paragraphs [136] and [137], I am not satisfied that Ms Klewer provides the best care for Mr Klewer, in terms of the impact she has upon his stress. I am also not satisfied as to the extent to which the ‘strong pFersonal views’ he expresses are genuinely his, particularly in view of the evidence of Dr Ashkar regarding Ms Klewer’s dominance and control and the evidence of Dr Spira as to Mr Klewer’s remarks to him regarding Ms Klewer. I am unable to be satisfied as to Mr Klewer’s vulnerability on the basis of the evidence before me. I accept that Mr Klewer feels safe and comfortable with Ms Klewer, but as set out above, do not accept that that is consistent with Mr Klewer’s goals of independence and to live a healthy and supported life, particularly in terms of his psychological health. I also observe that many of the matters raised by Ms Klewer as amounting to exceptional circumstances are issues regularly, routinely, or normally encountered with respect to the provision of supports for participants in the NDIS, and thus are not within the circumstances contemplated in the cases referred to above.

40    Given its findings, the Tribunal affirmed the decision under review: at T[168].

Grounds of appeal and questions of law

41    Mr Klewer advanced six grounds of appeal, each corresponding with a question of law as outlined in his amended notice of appeal filed on 21 October 2022:

1.    Whether the Tribunal took into account an irrelevant consideration in the form of paragraph 28 of Dr Askhar’s report (at [110], [115], [130], [135], [136], [140], [148], [150], [151], [166]), which paragraph was directed at the self-management request that was an issue at the time of Mr Ashkar’s report but was not in issue in the Tribunal proceedings, as opposed to the applicant's request that his mother provide overnight care while he sleeps.

2.    Whether the Tribunal denied the applicant procedural fairness, and/or disregarded ss 31(a)-(da), (g) and (i) and 33(2) of the NDIS Act, in finding:

a.    that he expressed to Dr Spira that his “mother pissed him off sometimes” (at [151]);

b.    that the Tribunal could not be satisfied that the applicant’s “consistently expressed views that he wants Mrs Klewer and no one else to be his night carer” was “genuinely held” by the applicant (at [151]; see also [166]); and/or

c.    that Mrs Klewer impacted on the applicant’s stress (at [166]),

in circumstances where there was a live question as to whether the applicant would give oral evidence, which was resolved by the Tribunal concluding at T-76.17 that: “there’s possibly nothing to be added by way of [the applicant] giving evidence”.

3.    Whether the Tribunal misapplied the relevant legal test in deciding that as at the date of the Tribunal decision (30 March 2022) it was not satisfied that Mr Klewer required overnight care ([141], see also [118], [128], [137], [167]), rather than deciding the matter (whether also or instead) as at the period the subject of the relevant Statement of the Participant Supports under review, being 31 May 2018 to 31 May 2019.

4.    Whether the Tribunal denied procedural fairness to the applicant in failing to accept Mrs Klewer’s evidence about the frequency and intensity of the applicant’s seizures (at [126], [128], [143], [150]), in circumstances where these facts were not contested by the respondent and Mrs Klewer was not cross-examined about the veracity of these facts.

5.    Whether the Tribunal applied the wrong legal test (at [150]) in requiring evidence from a neurologist, as opposed to the psychologist and other evidence available, to support the need for overnight care.

6.    Whether in finding at [145] and [167] that a seizure watch would be an adequate alternative, the Tribunal failed to have regard to either or both of the relevant considerations that:

a.    a seizure watch would not enable timely protection of the applicant from injury given the evidence of the nature of his seizures and his room set-up owing to his vision disability;

b.    in the event of a seizure watch, Mrs Klewer would nonetheless be providing overnight care for Mr Klewer in being a person alerted by and responding to the seizure watch.

42    Mr Klewer seeks for the appeal to be allowed, the Tribunal’s decision to be set aside and the matter to be remitted to the Tribunal for determination according to law.

Consideration of the grounds of appeal

43    There is a degree of overlap between the matters requiring consideration for all grounds, save for ground 3. Accordingly, ground 3 will be addressed last, at the end of these reasons.

Ground 1: Paragraph 28 of Dr Ashkar’s report

44    Mr Klewer contends by ground 1 that, by taking into account paragraph [28] of Dr Ashkar’s report (at T[110], [115], [130], [135], [136], [140], [148], [150], [151], [166]), the Tribunal took into account an irrelevant consideration.

45    The parties agreed that, in determining whether something comprises an “irrelevant consideration”, the Court is guided by the seminal decision of Lo v Chief Commissioner of State Revenue [2013] NSWCA 180; 85 NSWLR 86 at [9]. In Lo, Basten JA (Beazley P agreeing) crystallised crisply the concepts of relevant and irrelevant considerations in the following way (at [9]):

… The term “relevant considerations” is widely misunderstood: as used in leading authorities, such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 (Mason J), it refers to a matter which the decision-maker is bound to take into account. The obligation may derive from the express terms of the power-conferring statute or may be implied from its subject matter, scope and purpose. A preferable term would be “mandatory consideration”. Further, a matter traditionally described as an “irrelevant consideration” is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. Between these two categories is usually a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law.

46    Lo has been cited with approval, or apparent approval, by intermediate State appellate courts (although the NDIA provided no such cases in its written submissions) and single judges of this Court (see e.g., CMA19 v Minister for Home Affairs [2020] FCA 736 at [134] per Murphy J; BZW16 v Minister for Immigration and Border Protection [2019] FCA 395 at [17] per Bromberg J).

47    Mr Klewer accepted the confines of an “irrelevant consideration” being a prohibited consideration but claimed that the Tribunal’s reliance on paragraph [28] of Dr Ashkar’s report fell within this limited class by reason of it being “arbitrary” or “capricious”. Mr Klewer submitted that Dr Ashkar’s report “went only to the self-management request”, which was no longer in issue when the matter was heard before the Tribunal, and “had no relevant or no probative value” in relation to Mr Klewer’s overnight care request. Given the same, Mr Klewer submitted that Dr Ashkar’s report could not be taken into account, as it was “extraneous to [whether overnight care for Mr Klewer was reasonable and necessary] and liable to lead to a decision which is arbitrary or capricious”.

48    Mr Klewer submits that the context in which his application to the Tribunal was made, and the way in which the case had changed by the time of the hearing before the Tribunal, must be borne in mind by this Court, by reason of the following.

49    Mr Klewer notes that the application was for the Tribunal to review the NDIA’s internal review decision made under s 100 of the NDIS Act. The decision that was internally reviewed was the statement of participant supports in Mr Klewer’s NDIS plan. Mr Klewer’s NDIS plan was approved on 1 June 2018, following the granting of Mr Klewer’s NDIS access request on 12 March 2018, and was for a period commencing on 31 May 2018. Mr Klewer’s NDIS plan was to be reviewed by 31 May 2019.

50    The internal review decision was to refuse Mr Klewer’s request to self-manage his plan’s funding based on s 44 of the NDIS Act. No decision was made regarding whether his supports were reasonable and necessary, nor was a decision made with respect to whether supports could be provided by Mr Klewer’s family members. Mr Klewer and Ms Klewer had corresponded with the NDIA regarding supports to be provided by Mr Klewer’s family between 27 April 2018 and 13 July 2018.

51    In Mr Klewer’s application for review by the Tribunal, he stated two grounds which are extracted above at [7].

52    On 23 August 2018, the NDIA’s covering letter to Mr Klewer (which it sent along with the T documents that were before the Tribunal) stated that the NDIA’s preliminary assessment was that the issues in the proceedings concerned whether Mr Klewer should self-manage his NDIS plan’s funds.

53    Mr Klewer then submits that on 1 November 2018, the NDIA requested that Dr Ashkar (a psychologist) answer questions (which were stated at a high level of generality) about Mr Klewer’s disabilities. Mr Klewer notes that Dr Ashkar is not a neurologist and does have any particular specialisation in epilepsy or seizures. After assessing Mr Klewer for five hours (two and a half of those hours were dedicated to psychometric testing) on 10 December 2018, Dr Ashkar wrote a report dated 14 January 2019. Mr Klewer submits that apart from the assessment, Dr Ashkar otherwise had no connection to Mr Klewer.

54    Dr Ashkar commenced his report as follows:

I understand your [the NDIA’s] referral relates to a request made by Mr Klewer’s mother (Lucy Klewer) to be a paid carer for him and to personally manage the funds in his NDIS plan.

(Emphasis added.)

55    Dr Ashkar then provided a two-page summary of opinion at the end of his report, which Mr Klewer summarised as follows:

(a)    There was no objective evidence that Mr Klewer’s seizures were of the grand mal/generalised tonic-clonic variety (at [24]).

(b)    Mr Klewer has permanent impairments in cognition consistent with his history of astrocytoma and epilepsy; his intellectual skills are in the low average normal range and his verbal intellectual skills are remarkable in the circumstances (at [25]).

(c)    Mr Klewer requires structure and support, including to “manage his funds under the NDIS” (emphasis added), but does not appear to have severe widespread impairments (at [26]).

(d)    Dr Ashkar recommends that Mr Klewer receive occupational therapy, clinical neuropsychology, speech therapy, communication and social skills training, psychology and disability employment services (at [27]).

(e)    Mr Klewer’s anxiety is tied to his limited sense of self-efficacy. Ms Klewer’s dominance and control “of his care needs” (emphasis added) limits Mr Klewer’s sense of self-efficacy and will have serious implications if not immediately addressed (at [28]).

56    In the Tribunal proceedings, the NDIA filed its Statement of Facts, Issues and Contentions (SOFIC) on 5 July 2019. At that time, the NDIA contended that: (a) based on Dr Ashkar’s report, it is unclear whether support is required, (b) there are providers of overnight support in Mr Klewer’s area, and (c) the self-management request should be refused, including because Dr Ashkar opined in his report that it would undermine Mr Klewer’s self-efficacy. The NDIA then filed its amended SOFIC on 7 November 2019, which stated that the issues in contention had now changed to whether overnight care for 10 hours per night, seven days a week is a reasonable and necessary support and, if so, whether Ms Klewer should be funded to provide it. The self-management issue had fallen away, and it was not a matter that the Tribunal made findings about.

57    Despite the above, Mr Klewer submits that the Tribunal placed heavy reliance on paragraph [28] of Dr Ashkar’s report in its finding that overnight care by Ms Klewer would comprise Mr Klewer’s independence: at T[130], [135], [136], [140], [148], [150], [151], [166]. However, according to Mr Klewer, paragraph [28] of Dr Ashkar’s report was clearly directed towards the self-management request that was central to the dispute when Dr Ashkar was instructed (but not a central matter by the time of hearing). Mr Klewer submits that Dr Ashkar’s reference at [28] of his report to Mr Klewer’s self-efficacy necessarily relates to Mr Klewer’s independence in his daytime activities and his management of his NDIS plan. This submission, Mr Klewer contends, is consistent with Dr Ashkar’s oral evidence before the Tribunal, which is recorded at T[115]. It does not relate to overnight care, which takes place while Mr Klewer is either asleep or undergoing a seizure (both of which necessarily involve limited self-efficacy or opportunities for independence).

58    Mr Klewer therefore submits that [28] of Dr Ashkar’s report was an irrelevant consideration on the questions in issue before the Tribunal at the time of the hearing, and it should not have been taken into account.

59    I do not accept that [28] of Dr Ashkar’s report was only relevant to the issue of plan management and not as to whether the requested support was reasonable and necessary for the purposes of ss 33(2)(b) and 34(1) of the NDIS Act.

60    A fair reading of Dr Ashkar’s report appears that he understood that the NDIA’s referral was a related to a request of a dual nature (as appropriately conceded by Mr Klewer at hearing) made by Ms Klewer to be a paid carer for Mr Klewer and to personally manage the funds in his NDIS plan. This is clear from the first sentence of his report, where he notes that he has been asked to consider a request by Ms Klewer “to be a paid carer for [Mr Klewer]”. In addition, there are numerous references throughout the report to Mr Klewer’s experience of night seizures, the experience of his mother, and his wishes regarding that care: At [3], Dr Ashkar refers to Ms Klewer’s statement of lived experience, and notes that Mr Klewer “experiences seizures several times per month, mainly at night”, Ms Klewer “sleeps in the same room as Mr Klewer at night to monitor his seizures”, and that Ms Klewer states that Mr Klewer “only feels safe and happy with her as his carer … and that she will never allow others to care for him particularly at night”. At [6], Dr Ashkar refers to Dr Loiselle’s report, which makes reference to the fact that Mr Klewer experiences seizures mainly at night. At [7], Dr Ashkar notes the recommendation of Mr Lucas (Mr Klewer’s treating psychologist) that Ms Klewer provide all service provision “in light of his night-time seizure activity”. At [12], following an interview with Mr and Ms Klewer, Dr Ashkar identified that Mr Klewer “is particularly anxious about being cared for by someone other than his mother during the night”, and that one of Mr Klewer’s main difficulties and concerns was him “not wanting a stranger to watch over him at night” (at [14]).

61    Perhaps most critically, at [24] of Dr Ashkar’s report (which starts the section that contains the entirety of Dr Ashkar’s opinion following his review of the materials and his interview with Mr and Ms Klewer), he states that Ms Klewer “claims [Mr Klewer] continues to experience “grand mal” (or rather, generalised tonic-clonic) seizures at night, requiring her close attention and care”. Accordingly, I do not accept Mr Klewer’s submission that, when read fairly, paragraph [28] was not at all about whether overnight care should or should not be provided. It is clear that Dr Ashkar’s opinion was crafted in the knowledge of this request. It is also clear that, ultimately, Dr Ashkar did not give any concluded view on the efficacy of overnight care and whether it should be provided by Ms Klewer. He opined that he was not in a position to do so given that the cause of the seizures had not been diagnosed by experts and that that needed to be done. However, the determination of the reasonableness and necessity of supports including, inter alia, whether they will be, or are likely to be, effective and beneficial, having regard to good practice, will include consideration of the pursuit of self-efficacy and what may place a person in good stead for the longer term.

62    Taking the above references together, it is clear that Dr Ashkar turned his mind to the requested support in issue before the Tribunal, namely funding Ms Klewer to monitor Mr Klewer overnight. Accordingly, his report, including paragraph [28], was relevant to the Tribunal’s task.

63    The NDIA submitted that Dr Ashkar emphasising the importance of Mr Klewer gaining independence was relevant “to determining those matters that the Tribunal was required to consider under” s 34. Mr Klewer’s ability to provide care for himself in circumstances where Ms Klewer (or another person) cannot care for him was relevant in determining whether the support in issue would assist Mr Klewer to pursue his goals, objectives and aspirations. Whilst the NDIA accepted that Dr Ashkar did not directly profess an opinion with respect to overnight care specifically, I accept the submission of the NDIA that the issue raised by Ground 1 is whether paragraph [28] of Dr Ashkar’s report was prohibited from being considered by the Tribunal by virtue of the NDIS Act. I do not accept that there was any prohibition imposed by the NDIS Act such that Dr Ashkar’s report could not be considered by it. The purported basis for such a prohibition was premised on whether the issue of the overnight care by Ms Klewer was within the scope of Dr Ashkar’s report. For the reasons outlined above, I do not accept this.

64    Further, I accept the submission of the NDIA that the location of paragraph [28], under the heading “Summary and Opinion”, within the general context of the report suggests that the utility of the paragraph was not strictly limited to the issue of plan management, and related to the broader issue of whether the requested support in contest was “reasonable and necessary”. Further, in [28] of Dr Ashkar’s report, he addresses Mr Klewer’s anxiety and goes on to explain the need for Mr Klewer to achieve “autonomy” from his mother. That issue was relevant to whether Ms Klewer should be funded to provide the requested support. I do not consider that is constitutes a conflation of the issues as suggested by Mr Klewer.

65    I am of the view that stated goals of independence may include not only daily activities but also how a person is cared for (including overnight). Whilst I accept that a merits review analysis may consider the degree to which one overlaps with or informs the other, and that this may be the subject of debate and evidence, I am of the view that this merits review criticism is the basis for this ground and cannot fall within the species of a prohibited consideration.

66    Further, I accept the NDIA’s submission that the principles applicable to determining whether a consideration is irrelevant do not support Mr Klewer’s argument. As the NDIA contended, the starting point when considering the NDIS Act is the statement made by the Full Court in National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415 (at [201]):

The matters set out in s 34(1) are more than mandatory considerations, because in terms s 34 requires that a decision‑maker be positively satisfied about each matter. They are more in the nature of criteria of which the decisions‑maker (CEO, delegate or Tribunal) must be satisfied on the material. That satisfaction must be reasonably and rationally formed, not taking into account irrelevant considerations, and taking into account any relevant considerations, but otherwise it is for the decision‑maker to form the requisite state of satisfaction on the given material.

67    The NDIA submits that, having regard to the abovementioned principles, I should not find that the Tribunal made an error of law by considering the opinion of Dr Ashkar at [28] of his report when assessing whether the requested support was “reasonable and necessary” for the purposes of s 34 of the NDIS Act. For example, and contrary to the allegation in ground 1, there was no error in the Tribunal finding (at T[130]), in the context of assessing the criterion in s 34(1)(a), that “I accept the evidence of Dr Ashkar regarding the importance of Mr Klewer developing independence and the barriers in that regard presented by Ms Klewer”. Section 34(1)(a) required the Tribunal to be satisfied that “the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations”. As the Tribunal pointed out (at T[129]), Mr Klewer’s statement of participant’s goals and aspirations included the goal that he “would like to learn daily living skills and be as independent as [he is] able in all daily living tasks”. I accept this submission.

68    Finally, the NDIA contends that the Tribunal was required (by s 33(5)(b) of the NDIS Act) to take Dr Ashkar’s report into consideration when considering s 34(1)(a) of the NDIS Act. Section 33(5)(b) requires the decision-maker “[i]n deciding whether or not to approve a statement of participant supports under subsection (2)” to “have regard to relevant assessments conducted in relation to the participant”. None of these provisions support Mr Klewer’s contention that procedural developments in the course of the Tribunal’s review, such as certain issues falling away, had the effect of making paragraph [28] of Dr Ashkar’s report an “irrelevant consideration” in the sense contemplated by the authorities. As such, ground 1 does not establish an error of law, and should be dismissed. I also accept this submission.

69    The Tribunal was therefore able to rely upon Dr Ashkar’s report for the purposes of determining whether this requested support was reasonable and necessary.

Ground 2: Procedural fairness – Mr Klewer not giving evidence

70    By ground 2, Mr Klewer submits that the Tribunal failed to afford him procedural fairness by concluding that it doubted the genuineness of Mr Klewer’s “consistently expressed views” that he wanted Ms Klewer to be his overnight carer when he did not give evidence before the Tribunal.

71    At T[151] and [166], the Tribunal found that Ms Klewer being Mr Klewer’s overnight carer would not be in his interests:

151.     As to Ms Klewer’s submission that Mr Klewer’s wishes should be respected, I acknowledge that Mr Klewer has consistently expressed the view that he wants Ms Klewer and no one else to be his night time carer to the Tribunal in his statement and to a range of practitioners including Mr Lucas, Dr Ashkar, Dr Wong, Dr Choi and Ms Evans. He has however also expressed to Dr Spira that his ‘mother pissed him off sometimes’. I find that, based on the evidence of Dr Ashkar regarding Mr Klewer’s lack of self efficacy, and the ‘dominance and control’ exercised by Ms Klewer over him, I cannot be satisfied as to the extent to which this view is one genuinely held by Mr Klewer, rather than one imposed upon him by Ms Klewer. I accept, based on the Respondent’s submission regarding that one of the core principles which underpins the NDIS is enhancing a participant’s sense of independence and Mr Klewer’s stated goal ‘to be as independent as I am able in all daily living tasks’, and the evidence regarding independence which has already been canvassed, that in this case, Mr Klewer’s wishes are best served by developing independence. If necessary, this can be achieved by the use of a low-cost assistive technology alternative.

…

166.     With respect to Mr Klewer’s submissions I make the following observations. There is no independent evidence regarding the cultural considerations Ms Klewer raises. There is no objective evidence that Mr Klewer would be at risk of harm or neglect if not attended by Ms Klewer overnight – if overnight care were necessary, which I have found it is not. Ms Klewer’s other submissions regarding ‘exceptional circumstances’ are already dealt with in the reasons above – that, should overnight monitoring be required, Mr Klewer’s privacy and dignity can be preserved by the use of assistive technology. Based on the findings set out in paragraphs [136] and [137], I am not satisfied that Ms Klewer provides the best care for Mr Klewer, in terms of the impact she has upon his stress. I am also not satisfied as to the extent to which the ‘strong pFersonal views’ [sic] he expresses are genuinely his, particularly in view of the evidence of Dr Ashkar regarding Ms Klewer’s dominance and control and the evidence of Dr Spira as to Mr Klewer’s remarks to him regarding Ms Klewer. I am unable to be satisfied as to Mr Klewer’s vulnerability on the basis of the evidence before me. I accept that Mr Klewer feels safe and comfortable with Ms Klewer, but as set out above, do not accept that that is consistent with Mr Klewer’s goals of independence and to live a healthy and supported life, particularly in terms of his psychological health. I also observe that many of the matters raised by Ms Klewer as amounting to exceptional circumstances are issues regularly, routinely, or normally encountered with respect to the provision of supports for participants in the NDIS, and thus are not within the circumstances contemplated in the cases referred to above.

(Footnotes omitted.)

72    The Tribunal made this finding despite Mr Klewer’s consistently expressed views “that he wants Mrs Klewer and no one else to be his night carer”: at T[151]. This occurred in circumstances where the NDIA did not challenge Mr Klewer’s credit before the Tribunal, nor did it seek to cross-examine him.

73    Mr Klewer also relies upon the fact that the Tribunal took into account a hearsay statement from 2017 (at T[56], [133] and [151]), in that Dr Spira’s report to Dr Ajuyah includes a suggestion that Mr Klewer stated that “[his] mother pisses [him] off at times”. However, neither Mr or Ms Klewer were asked about this during the Tribunal proceedings.

74    Mr Klewer contends that it was procedurally unfair for the Tribunal to doubt the genuineness of Mr Klewer’s views, and to prefer a hearsay phrase from 2017, where Mr Klewer’s evidence was not challenged and he did not give oral evidence at the Tribunal. According to Mr Klewer, the Tribunal should have told Mr Klewer that not giving oral evidence may be adverse to his case, because the Tribunal doubted the genuineness of his stated views. Mr Klewer submits that the failure of the Tribunal to alert Mr Klewer to this constituted a denial of procedural fairness: see WRMF at [66]. This failure was said to be heightened by the Tribunal telling the parties during the hearing that “there’s possibly nothing to be added by way of [Mr Klewer] giving evidence”, which according to Mr Klewer was relied upon by him in his election not to give evidence.

75    Mr Klewer submits that, to have observed procedural fairness, the Tribunal should either have disclosed the risk to Mr Klewer during the hearing, or failing such a disclosure, should not have made the finding that it doubted the genuineness of Mr Klewer’s views. Mr Klewer was denied the possibility of a different outcome of his review application before the Tribunal: see Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 145, 147; Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [60].

76    For the following reasons, this ground is made out.

77    It was common ground as between the parties that a species of procedural unfairness includes where a decision-maker deprived a party of a fair opportunity to be heard by failing to alert the party of an issue (not considered by the parties) which it considers important: WRMF at [66]. Put differently, 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: SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145; 266 FCR 105 at [39], citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576 at 591.

78    It is apparent from a review of the SOFIC, the submissions of the parties and the transcript, that the Tribunal’s finding at T[151] that it “[could not] be satisfied as to the extent to which this view [Mr Klewer’s view that he wanted Ms Klewer and no one else to be his night time carer] is one genuinely held by Mr Klewer, rather than one imposed upon him by Ms Klewer” (emphasis added) did not arise as an issue raised by either party.

79    Mr Klewer’s view regarding him wanting his mother, and no one else, to be his night time carer, was set out in Mr Klewer’s statement relied upon by him before the Tribunal. The relevant portions are extracted as follows:

2. …

b)     I only want my mother to look after me for as long as she can and I hope I will be lucky enough to find a partner in the near future so she can be trained by my mother to look after me when my mother can no longer look after me.

…

e)     I am very fearful of even the thought of having someone watching my sleep. I will never allow for that. My anxiety levels are so bad that any additional stress results in seizures.

f)     My mother does her best to reduce my stress levels. She loves me and I love her very much and she will do anything for me to keep me well. She has done this all my life.

g)     The risk of harm and neglect to myself are very high if my mother was not there for me especially at night time. I am terrified about my condition and I worry a lot each time I go to bed at night as I don't know if I am going to suffer seizure [sic]. I am aware most times when these episodes occur and they are very scary. My heart rate is so fast and my jaw starts shaking then my whole body starts shaking and I try to talk and I can’t. I tap my leg real hard to get mum’s attention, she sleeps across the room, I feel like I am going to die.

h)     My head twists one way and then I start falling toward the left and to the ground, my mother stops me from falling but at times she can’t so she lets me fall on the pillows on the floor she places there. At times she injects me with medication if I have more seizures or if the seizure is too long. Such medication always stops the seizures.

3.     I am entitled to have my wishes and decisions respected by NDIS after all such Scheme was created to provide me with the services I choose, to assist me to access other services which improve my life. My mother and myself and my GP and treating specialists are all on the same page and we wish to continue as we are.

4.     The most important issue is my safety and peace of mind and stress reduction. I am very satisfied with the great services from my current psychologist Charles Lucas whom I have seen for 4 years. He understands me fully, just like my mother does and he listens to me.

5.     I hope one day my seizures will be better controlled by better medications. I also hope that my anxiety and panic disorders are reduced so I can better enjoy my life. Dealing with NDIS and ther [sic] poor attitude and dealing with these legal issues have caused me significant stress and I truly believe that NDIS do not care about the harm they caused.

80    The NDIA’s submission was, in effect, that first the Tribunal ought not be satisfied that overnight care was necessary. There was a lack of objective medical evidence that epilepsy monitoring was required as there was “no evidence of a definitive diagnosis that the seizures currently experienced by [Mr Klewer] are of an epileptic nature” and nor was there evidence from a treating doctor confirming the requirement of epileptic monitoring at all, let alone overnight. To the extent that the seizures were psychogenic non-epileptic seizures, there was no evidence from a treating doctor confirming the requirement for overnight monitoring of such seizures.

81    To the extent that overnight care was required, the NDIA submitted that there was insufficient medical evidence to establish the level of care required and, in particular, whether the care ought to be active or passive, including by use of a seizure watch (which constituted a low cost alternative support).

82    As to whether Ms Klewer should be funded to provide overnight care, the NDIA disputed that “exceptional circumstances” justified that a family member provide the care, as required under the NDIS Operational Guidelines. The NDIA acknowledged Ms Klewer’s position, in its amended SOFIC, as to “exceptional circumstances” arising where, as provided in Chapter 11.1 of the Operational Guidelines:

•    there is a risk of harm or neglect to the participant;

•    there are religious or cultural reasons for funding a family member to provide supports; or

•    the participant has strong personal views, for example in relation to their privacy or dignity.

83    Notably, the third identified exceptional circumstance refers to account being taken of whether the “participant has strong personal views, for example in relation to their privacy or dignity”. Flowing from this, the NDIA noted Mr Klewer’s view in its amended SOFIC:

As to his expressed wishes, the Applicant states that “I want my mother to look after me for as long as she can”; “I am very fearful of even the thought of having someone watching my sleep. I will never allow that”; ‘The [sic] risk of harm and neglect to myself are [sic] very high if my mother was not there for me especially at night.”

(Footnotes omitted.)

84    The NDIA made no submission, at all, ever, that Mr Klewer’s view was not “genuine” and should not be accepted. Rather, for other reasons, in part identified above, it contended that the circumstances did not warrant overnight support or, if they did, they were not such that there were exceptional circumstances which warranted it being provided by Ms Klewer. The NDIA identified, as part of its amended SOFIC, that there were reasons why, despite Mr Klewer’s view, the circumstances did not constitute “exceptional circumstances” where a family member would be funded to provide the requisite support:

91.     In response to the Applicant’s contentions as to the “exceptional circumstances” that exist in this matter, the respondent’s position is as follows:

a.     The Tribunal should not accept that the Applicant is at risk of neglect or harm if he is cared for by an external support worker or is especially vulnerable. There is no objective evidence to support that contention;

b.     An appropriately qualified external provider can provide care that is of high quality and that will ensure the safety of the Applicant. There are available within the Coffs Harbour area in which the Applicant resides, providers of overnight support of the kind requested;

c.     Concerns about privacy are common to participants in the scheme receiving personal care. The Applicant’s concern may be addressed by the use of passive monitoring, utilising assistive technology;

d.     There is no medical evidence that “stress” is causing the seizures. On the available medical evidence, the “triggers” for the seizures are unclear. The Applicant and his mother have reported to treating doctors that stress is a factor rather than the treating doctors opining that stress is a factor;

e.     Finally, it is unclear that it is Ms Klewer’s cultural background that precludes her from allowing others to care for the applicant as opposed to her personal and strongly held views that she will never allow anyone else to care for the Applicant.

92.     As to the Applicant’s fear of having someone watching him sleep, again this may be addressed by the use of passive monitoring, utilising assistive technology.

93.     The Respondent’s contention is that there are not “exceptional circumstances” in this case to warrant the funding of the Applicant’s mother to provide overnight care to the Applicant.

85    The NDIA did submit as well, noting Mr Klewer’s view that reliance should also be placed on his stated goal of “independence”, the following:

The Tribunal should find there are not “exceptional circumstances” warranting a determination that Ms Klewer, a family member, be funded to provide overnight care to the Applicant, given the Applicant’s failure to demonstrate that “exceptional circumstances” exist; the goals stated in the Applicant’s plan; and the psychologists evidence as to the nature of the relationship between the applicant and his mother and the need for the Applicant to develop independence.

86    The NDIA, in a similar vein, when addressing the s 34 criteria in relation to s 34(1)(a) (whether the support would assist the participant to pursue their stated goals and aspirations), submitted that overnight support (if required) should be provided by an external provider rather than Ms Klewer “given the objectives of the Applicant’s plan and Dr Ashkar’s evidence as to the detriment flowing from Ms Klewer’s dominance and control of the Applicant’s care needs”.

87    To the extent that the NDIA relied upon Dr Ashkar’s opinion, and particularly paragraph [28] of his report, it was as referred to in the amended SOFIC in the following way:

The Tribunal cannot be satisfied that funding the Applicant’s mother to provide overnight care would be beneficial for the Applicant. Funding the Applicant’s mother to provide overnight care would further reinforce a degree of control that presents a risk to the Applicant. As noted above, Dr Ashkar opines that the applicant’s mother’s “dominance and control (I do not use these words lightly) of his care needs (no matter how well intentioned she may be) limits his sense of self efficacy (and ultimately his dignity by compromising his independence) and this will have serious implications for his psychological health into the future if not addressed today”

(Emphasis in original, footnotes omitted.)

88    Indeed, the NDIA’s submission before the Tribunal remained consistent, in opening, when counsel for the NDIA submitted that Mr Klewer’s evidence (which would include not only his evidence but of course all evidence upon which he relied) “at its highest” would not satisfy the Tribunal that the support was justified. There was no challenge by the NDIA of Ms Klewer, under cross-examination, as to whether she had imposed her views on Mr Klewer. Dr Ashkar gave evidence, under cross-examination, to the effect that he agreed with what Mr Lucas (Mr Klewer’s treating psychologist) had stated regarding Mr Klewer’s feelings of comfort and safety under his mother’s care:

In relation to (indistinct)?---No, in relation to the Charles Lucas opinion regarding that your son feels - referring to the information in that Charles Lucas report where he says that your son, [Mr Klewer], feels comfortable and safe in your care throughout the night, and I agreed that that would be the case, and it’s natural and it’s understandable. That’s what I was agreeing to.

89    During Dr Ashkar’s cross-examination the Tribunal clarified, for Ms Klewer’s benefit, that the purpose for which Dr Ashkar’s report went to was “whether the support that [Mr Klewer] is seeking will be or is likely to be effective and beneficial… having regard to current good practice, which is contained in section 34(1)(d) of the NDIS legislation”.

90    Thereafter, Dr Ashkar was questioned regarding the conclusions in his report, and maintained that his reference at [24] to the “uncertainty surrounding the origin and the cause of the reported seizures” was because he had been asked to identify Mr Klewer’s support needs and it was his view that further information was necessary.

91    Dr Ashkar maintained this view and did not extrapolate beyond that which was contained in his report, as extracted at [19] above. There was no extrapolation to the view of the Tribunal that Mr Klewer’s view had been “imposed upon him by Ms Klewer”.

92    The parties each took me to relevant parts of the transcript of the hearing regarding the issue of Mr Klewer’s evidence. The extracts relied upon revealed that the Deputy President impressed upon Ms Klewer, participating as Mr Klewer’s nominee at the hearing, at the commencement of the hearing, that “greater weight” would be placed on the evidence given by Mr Klewer “himself as to his preferences” than information provided through Ms Klewer or someone else.

93    At the commencement of the second day of the hearing, counsel for the NDIA indicated that he did not require Mr Klewer for cross-examination. The Deputy President indicated that it was a matter for Mr Klewer as to whether he wished to give evidence.

94    Part of Ms Klewer’s exchange with the Tribunal is extracted as follows:

MS KLEWER: Deputy President - yes, I only kind of entertained him giving evidence again because Deputy President had said it would help his case, and then you went on to also say what Lucas thinks about him giving the evidence, and then I provided you that email today which said that if it’s non-combative and non-adversarial, [Mr Klewer] can give evidence. So, because of that things changed, and prior to today - you know, prior to (indistinct) it was a situation whereby he was not in a position to give evidence, mainly because you know all of the drama against attacks on me and (indistinct) witnessed, you know, through different representatives and, you know, other tribunal member and the tactic there to go to the Federal Court after that. So that was very daunting.

DEPUTY PRESIDENT: Okay, well look the bottom line is that obviously it’s much better if an applicant gives evidence himself. And that is absolutely reasonable. But what Mr Liu is saying - and this is correct - is that whilst that canvassed I think in sort of May of this year when we were considering coming to - trying to have the matter heard in person in Coffs Harbour - that was certainly contemplated in directions and discussed in a directions hearing at that time. And you made it abundantly clear that [Mr Klewer] wouldn't be giving evidence under any circumstances. What I did at the beginning of the hearing is put you on notice that it’s [Mr Klewer’s] matter and it would be much better if he were to give evidence, and that remains just an insurmountable, sort of, truth.

But what Mr Liu is saying, which his [sic] quite reasonable, is that if [Mr Klewer] is to give evidence, he needs some time to prepare for that. And he hasn’t done so because up until - - -

MS KLEWER: Sorry?

DEPUTY PRESIDENT: What Mr Liu is saying is if [Mr Klewer] is to give evidence, he needs some time to prepare the questions he would wish to ask [Mr Klewer].

95    Counsel for the NDIA then submitted:

MR LIU: Can I also make this submission, which might sort of help to cut through things a little bit - which is I accept the force of what the tribunal has said about it’s better for applicants generally to be giving evidence of their own lived experience certainly, but there are perhaps two short matters I’d introduce in this context to explain why, from the respondent’s point of view, Mr Klewer is ultimately not required for cross-examination on the current state of things. And they are these - the first is I won’t ask the tribunal to draw any sort of adverse inference from Mr Klewer not giving evidence, or certainly electing not to give evidence. And the second thing is the relevant circumstance in this case is that Mrs Klewer is her son’s plan nominee. So to the extent that she's been appointed plan nominee, section 78 of the Act does give her some rights to speak on his behalf. And the respondent - to the extent required by the Act - accepts how those presumptions work.

96    Thereafter the exchange continued:

DEPUTY PRESIDENT: Right, well Ms Klewer you’ve heard that. As I said, I’m not going to tell you how to run your case. It’s therefore a matter - or [Mr Klewer] how to run his case – it’s therefore a matter for [Mr Klewer] and you to the extent that you’re his nominee, to decide whether you would like him to give evidence or not. And if you would, I would be inclined to give Mr Liu the balance of today to prepare for that, so he needs to be put on notice as to whether that’s what he’s doing or not. And then we would hear from [Mr Klewer] after we’ve heard from Mr Lucas tomorrow morning, I’m guessing?

MS KLEWER: Yes, well my response to that is that in the event [Mr Klewer] does not give evidence, then his statement on the record would go in unchallenged. And second to that, if he were to give evidence, it has to be in line with the advice of Mr Lucas. That it is non-adversarial and non-combative. And then I would add to that that it would have to be limited to how he feels about his condition at night in relation to the effect on him and the fear he suffers when these episodes occur, and the care that he receives makes him feel secure and he would not want any changes to that. So, if he gives evidence, it will be along those lines, because that’s what’s relevant anyway.

DEPUTY PRESIDENT: Okay, well Ms Klewer, I’m not going to allow you to put limitations on the questions. I would manage that on a question by question basis. I’ve explained what the situation is. You now have - I will now stand it down for a little bit longer, because you and [Mr Klewer] need to decide unequivocally whether [Mr Klewer] is going to give evidence or not so that Mr Liu has some knowledge of that so he can work out how to spend his time today. Because if [Mr Klewer] is going to give evidence, Mr Liu needs to be in a question to cross-examine him. Is that your position as I understand it, Mr Liu?

MR LIU: Yes, Deputy President. I can say that if he doesn’t give evidence his statement that is in the bundle will technically speaking go in unchallenged because he won’t be cross-examined. And I’m fine with that position. But the second component of what Ms Klewer said is unfortunately not something the respondent can sign up to as a general proposition as to how cross-examination might be limited in the very precise ways that she’s contended for.

DEPUTY PRESIDENT: Well I think I’ve indicated to Ms Klewer that I couldn’t possibly - the tribunal couldn’t possibly say that that’s what would happen either.

97    After a further exchange, where the NDIA raised a concern about Ms Klewer being in the same room as Mr Klewer, the Deputy President stated:

DEPUTY PRESIDENT: Yes. I’m not really convinced what is going to be added by [Mr Klewer] giving evidence himself if Mr Liu is not going to cross-examine him - is not requiring him for Cross examination - and you’re saying at the moment that his statement - well not saying at the moment, is saying that in the absence of [Mr Klewer] himself giving evidence, his statement in effect won’t be challenged - and that you won’t be asking me to draw any adverse inference. Is that clear?

MR LIU: That’s so.

DEPUTY PRESIDENT: So I think on that basis, Ms Klewer, given the tension between the general principle of the desirability of a witness giving evidence separately from other witnesses who might give evidence, and the difficulties that [Mr Klewer] would have in doing that without you present - in light of Mr Liu’s client's position in relation to [Mr Klewer’s] existing evidence by way of statement, there’s possibly nothing to be added by way of giving evidence.

    (Emphasis added.)

98    Mr Klewer did not give evidence. Mr Klewer was not informed by the Tribunal that an issue in the proceeding was that the genuineness of his views should not be accepted because his mother had imposed that view regarding night time care upon him.

99    It is clear that none of the medical evidence was to this effect. Rather to the contrary, reliance was placed on (to which the NDIA acceded) the consistent evidence of Mr Lucas, in multiple reports over time, culminating in his “summary” report, dated 22 May 2021, in which he repeated what he had stated previously regarding Mr Klewer’s views which included the following:

I noted in a report of 2nd July 2018 in regard to [Mr Klewer’s] application to the NDIS that, “in relation to the NDIS application concerning your son, [Mr Klewer], and just to relate that it is clear that under the scheme optimal care for [Mr Klewer], especially during the night period and during his sleep time, when he is more susceptible to seizures and when he may require intervention with Midazolam, is best provided by yourself, rather than any other service provider. The reasons for this include the case that [Mr Klewer] has naturally developed a long time reliance, trust and faith in your capacity to care for him throughout his life and you, in turn, obviously, as a parent and the sole and primary carer throughout [Mr Klewer’s] life, have developed a unique and specific skill set and the degree of intuition as a mother, to be able to anticipate [Mr Klewer’s] needs and generally provide the level of monitoring in respect of his disability to an optimum standard. Furthermore, and as we discussed during our session recently, [Mr Klewer] has strong concerns in regard to the compromises he will have to make in terms of his privacy and dignity if he has a carer other than yourself at night, and understandably, he is anxious that any other carer may not provide him with the same level of care that you yourself can, as a result of not only the years of experience you have in the care of [Mr Klewer], but the intuition that only a mother has in terms of the physical and emotional needs and requirements of their children. As you are aware, [Mr Klewer] suffers from generalised anxiety disorder with some traumatic features, and it is the case that anxiety is associated with increased frequency of seizures and much greater challenges in the overall management of his condition, and again, it could be [sic] certainly be the case that any change in the provision of [Mr Klewer’s] care could be, in fact, detrimental to him and that it would be preferable, in view of this, that all service provision should continue to be provided by yourself, as has been the case for the duration of [Mr Klewer’s] life.”

100    When responding to Dr Ashkar’s report and the “dependent relationship [Mr Klewer] has with his mother and the need for him to develop a greater autonomy in all areas of his life”, Mr Lucas stated:

Associated with this, is the fact that [Mr Klewer] has indeed developed a strong dependency upon his mother over the years as a consequence of the health and related challenges he has faced, and it is also the case that his mother, Lucy, reciprocates this dependency by her strong and dominant parenting style and her concerns about [Mr Klewer’s] safety and well being [sic] in the world. Indeed, some of Lucy’s expressed concerns, as I have discussed with her including, for example, her fear that he could be swept away by the ocean by walking near it with the dog, or be assaulted by people on the walking track, does tend to provide reinforcement for [Mr Klewer’s] generalised anxiety disorder and his hypervigilance.

I have also discussed with Lucy the case that her ongoing struggles with the police and other authorities over various matters and her regular debriefing of these struggles with [Mr Klewer], does tend to add to his fears about the world and to his anxiety levels, and certainty, [Mr Klewer’s] own experiences with the police have eroded his trust to the extent that his mother and his extended family including, his sisters, are the primary people he trusts in the world. We have discussed that it is, of course, desirable for [Mr Klewer] to develop greater independencies in general outside of his mother and extended family, but it is also the case that the reality is that he enjoys and derives tremendous benefit in regard to self confidence and skill development from the partnership he has with his mother in the nursery, and he looks forward to the local markets where he interacts with others, disseminating some knowledge about the plants he has grown, handling the sale, and also having the opportunity to maintain and initiate relationships with his fellow marketeers.

…

So, while of course it is desirable for [Mr Klewer] to have the opportunity to develop greater independence the actual reality is that the opportunities for this are very restricted, or non-existent, given his circumstances, as I have described. On the positive side, he does report a good and productive, working partnership with his mother in the nursery, and this small business has provided [Mr Klewer] with opportunities for the development of his self confidence and for the establishment of a community identity and networks amongst his fellow marketeers in the local area, as well as the development of a skill set which is fully compatible with the nature and degree of his impairments. It is the reality, as well, that his mother supports and supervises him in this partnership and that she, in turn, may not be viable in the small business without [Mr Klewer’s] support.

As noted earlier, social opportunities for [Mr Klewer] outside of his family are extremely limited in Coffs Harbour, not unlike many other regional centres, and most, if not all of these opportunities, with respect to [Mr Klewer’s] age group, are connected with the local churches where he could potentially, at least, have companionship and social involvements. Perhaps, NDIS could explore opportunities like this and related possibilities, especially in view of the case that there are, anecdotally, at least, other NDIS clients that would benefit from similar support services.

So, in consideration of the entire life circumstances which gave rise to the conditions underlying the development of the strong co-dependencies between [Mr Klewer] and his mother, it is a pragmatic fact that [Mr Klewer] has naturally developed a long time reliance, trust and faith in his mother’s capacity to care for him and she, in turn, has developed a highly specific skill set and intuition as a parent to anticipate [Mr Klewer’s] needs and generally provide the level of monitoring in respect of his disabilities to an optimum standard reducing the anxiety he might otherwise feel. Added to this, and as we have discussed, [Mr Klewer] understandably has strong concerns in regard to the compromises he will have to make in terms of his privacy and dignity if his nightly care and monitoring is outsourced at this stage.”

As we discussed during the telephone call of the 04/05/2021 in relation to the actual nature of the seizures themselves, it appears to be the case, that irrespective of the definitive diagnosis whether pseudo seizures, or otherwise, (Neurologist, Dr Balaji Kalband suggested that [Mr Klewer] is suffering “focal dyscognitive seizures with secondary generalisation”) the actual behavioural outcome as reported by you is such that his condition can, at times, require administration of Midazolan [sic] to settle him and on frequent occasions, it is required that [Mr Klewer] is transported to hospital by the paramedics and subsequently, admitted for review. You have also noted your concern that [Mr Klewer] could injure himself during one of these episodes. There is no doubt that your role and responsibility as a mother changes dramatically, during and immediately following a seizure episode, into that of a carer, and it is important, of course, that this duel role is both recognised and understood.

101    By further report dated 26 May 2021, Mr Lucas reiterated Mr Klewer’s wishes again when asked about “[Mr Klewer’s] attitude concerning the scenario that he would have to engage in a carer relationship under the NDIS with a person other than his mother”. He stated that he could “confirm [Mr Klewer’s] opposition to this based upon compromises with regard to privacy and dignity and referred to previous notes”, concluding:

Indeed, [Mr Klewer] has been totally consistent over time in his absolute preference that his mother remains as his night carer and certainly, this preference is based upon the high degree of trust he has in his mother, as well as issues relating to privacy and dignity, as we have discussed. Further, in my letter to you and Mandy Tomkins of A Break Disability Services on the 02/07/2018, I noted that, “Furthermore, and as we discussed during our session recently, [Mr Klewer] has strong concerns in regard to the compromises he will have to make in terms of his privacy and dignity if he has a carer other yourself [sic] at night, and understandably, he is anxious that any other carer may not provide him with the same level of care that you yourself can as a result of not only the years of experience you have in the care of [Mr Klewer], but the intuition that only a mother has in terms of the physical and emotional needs and requirements of their children.”

(Emphasis in original.)

102    Under examination, Mr Lucas maintained the same regarding Mr Klewer’s views, which he described as being “very strong”:

I mean you could see that he just simply didn’t want anyone else in the house. And that his faith and trust was with you as the mother there. So, that’s really the whole context of what I’ve put forward there.

103    Notably, under cross-examination, Dr Ashkar did not dispute Mr Lucas’s description of his opinion regarding what Mr Klewer felt and stated:

In relation to (indistinct)?---No, in relation to the Charles Lucas opinion regarding that your son feels - referring to the information in that Charles Lucas report where he says that your son, [Mr Klewer], feels comfortable and safe in your care throughout the night, and I agreed that that would be the case, and it's natural and it's understandable. That's what I was agreeing to.

104    Consistent with the evidence, the submissions in opening and the issue regarding whether Mr Klewer would give evidence, the NDIA did not, in its closing submissions, contest Mr Klewer’s evidence but rather submitted that:

…the applicant himself, his treating psychologist and Mr Klewer’s mother have all given consistent evidence that the applicant has a strong preference to have the requested support provide by his mother, as is currently happening.

105    Rather, in response, the NDIA submitted, inter alia, with reliance upon paragraph [28] of Dr Ashkar’s report, “that [Mr Klewer’s] mother’s control of his care needs limits his sense of self-efficacy, potentially compromises his independence, and will have serious implications for his psychological health. That’s the core of Dr Ashkar’s opinion…”. As a consequence, it was submitted that “Dr Ashkar’s evidence, and some of the other psychological evidence, which does not seem to suggest that having this type of support [overnight care by his mother] will enhance [Mr Klewer’s] independence in any way”.

106    As stated by Mortimer J (as her Honour then was) in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [37], where an obligation to afford procedural fairness is expressly or impliedly imposed, the general question is whether the person has been denied an opportunity to be heard on a matter which she or he ought fairly to have been given in the totality of the circumstances, citing WZARH at [42] (quoting SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [25]). ARK16 emphasised that the question is directed to the decision-maker’s (here the Tribunal’s) processes not the correctness of the Tribunal’s conclusions. As referred to above, the Full Court’s well known passage in Alphaone at 591–592 states that the decision-maker is required to advise of any adverse conclusion which has been “arrived at which would not obviously be open on the known material”.

107    I am of the view, for the reasons identified above, that the “known material” included nothing at all to the effect that Mr Klewer’s view had been “imposed upon him by” his mother. There was no challenge at all to his evidence. There was no challenge to his mother’s evidence, nor was it put to her that she had, by her conduct, “imposed” her view as to his night time care being only provided by her upon him. There was no evidence from any expert as to this being the effect of Ms Klewer’s “dominance and control” of his care needs. Rather, to the contrary, as set out above, both Mr Lucas and Dr Ashkar maintained, despite them both to varying degrees identifying this “dominance and control”, that Mr Klewer “strong[ly]” held this view for rational reasons associated with privacy and dignity. This is what makes the Tribunal’s finding unexpected, as well as one affected by jurisdictional error: ARK16 at [41].

108    I reject the NDIA’s contention that I should not accept Mr Klewer’s arguments with respect to this ground of appeal on the basis that the impugned findings turn on issues about which Mr Klewer was alerted to, and which he could have answered (or did answer). The fact of the Tribunal’s reference to one line in Dr Spira’s (Mr Klewer’s neurologist) report (at T[151]) regarding Mr Klewer sometimes being agitated by his mother, provides no answer. There was nothing in Dr Spira’s report that went to the issue of the purported unreliability of Mr Klewer’s views by reason of his mother’s influence on him. Further, I do not accept the NDIA’s submission that the Tribunal’s finding at T[151] was responsive to Ms Klewer’s submission that Mr Klewer consistently expressed the view that he wants his mother, and no one else, to be his night-time carer and arose where the Tribunal noted that the evidence of Dr Spira and Dr Ashkar did not support Mr Klewer’s submission concerning his “consistently expressed … view”. For the reasons outlined above, I do not accept that this “issue” was discernible as being one, whether from the evidence of Dr Spira nor Dr Ashkar or otherwise.

109    Further, the NDIA submits that a fair reading of the Tribunal’s reasons does not support Mr Klewer’s submission that the Tribunal doubted the “genuineness” of his views so as to engage an obligation to cross-examine him on that issue. The Tribunal’s finding at T[166], according to the NDIA, was that it was “not satisfied as to the extent to which the ‘strong personal views’ [Mr Klewer] expresses are genuinely his” (emphasis in original). The NDIA submitted that there was no impugning of Mr Klewer’s credit but rather a consideration of the likely reliability of his evidence. The NDIA submits that, in making this finding, the Tribunal was simply evaluating and weighing the evidence before it on a relevant issue, namely Mr Klewer’s independence and the role of his mother. Mr Klewer was alerted of this issue, and Ms Klewer cross-examined Dr Ashkar about it. I do not accept this contention for the same reasons. The issue was whether Mr Klewer’s evidence about his own wishes regarding night care should be accepted. The Tribunal raised as an issue, for the first time in its reasoning, not being satisfied that Mr Klewer’s wishes were genuinely held by him rather than being imposed upon him by his mother. It is my view that this was something, whether described as arising from a credit finding or as a question of reliability, that was an issue about which Mr Klewer needed to be made aware. The “known material” included nothing about Mr Klewer’s views being imposed upon him by his mother. Familial dynamics and their effect on free will are varied and complex.

110    I note that the NDIA correctly conceded that Dr Ashkar’s evidence did not deal with this issue directly, but stated that there was a logical basis for the finding based on Dr Ashkar’s evidence because the “issues of dominance and control and the lack of self-efficacy are such that that provided a basis for the tribunal not to reject Mr Klewer’s evidence, but simply to say that it’s not satisfied that that evidence should be accepted”.

111    As such, the NDIA submits that the Tribunal’s assessment of the evidence in relation to Mr Klewer’s submission is neither a denial of procedural fairness, nor a failure to perform its statutory task.

112    I must also be satisfied that, by reason of this error, Mr Klewer was denied the possibility of a different outcome: see e.g., WZARH at [60] (per Gageler and Gordon JJ); see also Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398 at [30]–[31] (per Kiefel CJ, Keane and Gleeson JJ). As observed recently by the High Court in Nathanson, the determination of the materiality of a breach requires consideration of the factual question of how the decision was in fact made, which is determined by proof of historical facts on the balance of probabilities (per Kiefel CJ, Keane and Gleeson JJ at [30]–[31], per Gageler J [55]–[58]). It is necessary to consider whether the decision that was made could have been different had the relevant condition been complied with as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined” (Nathanson at [32] (per Kiefel CJ, Keane and Gleeson JJ) quoting MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [38]), for which the plurality in Nathanson stated the burden falls on the applicant/plaintiff. The plurality observed that there will generally be a realistic possibility of a different outcome where a party was denied an opportunity to present evidence or make submissions on an issue that required consideration: Nathanson at [33] (per Kiefel CJ, Keane and Gleeson JJ).

113    Here, I accept the submission of Mr Klewer that the Tribunal relied upon the fact of the absence of a genuine view held by Mr Klewer that he be cared for at night by Ms Klewer and only Ms Klewer with respect to its finding as to whether the overnight support was “effective and beneficial” under s 34(1)(d): at T[151]. To the extent that it is necessary for me to decide, I am of the view that the absence of this view constituted a material finding in the Tribunal’s conclusion that the support was not “effective and beneficial”. The Tribunal commenced its reasons in this regard by referring to Ms Klewer’s two-fold submission, the second component of which was that “Mr Klewer’s wish that he be cared for at night by her and only by her”: at T[146]. The Tribunal relied upon the absence of a view expressed by Mr Klewer to fortify its conclusion (at T[154]) that the support was not “effective and beneficial” in finding that “Mr Klewer’s wishes are best served by developing independence”: at T[151]. Further, it was relied upon by the Tribunal if the second issue had arisen, namely if it had been “reasonable and necessary” to provide the support, whether exceptional circumstances arise such that the support should be provided by Ms Klewer: at T[166].

114    I am of the view that, in circumstances where the Tribunal formed this view about a fact, it was obliged to raise it with Mr Klewer and give him an opportunity to make submissions about it and, potentially, to give evidence about it if he so elected, including from himself, Ms Klewer and any relevant expert, as this evidence may have resulted in a different outcome.

Ground 4: Denial of procedural fairness in not accepting evidence of Mr Klewer’s seizures

115    Mr Klewer contends that the Tribunal found at T[126] that, despite the hospital and ambulance records that were obtained by summons and put before the Tribunal, only five separate seizure incidents were witnessed by paramedics or hospital staff. As to the balance of the seizure incidents, the Tribunal found “it is not possible to verify their nature or frequency” (at T[126]; see also T[128], [143], [150]). Mr Klewer submits that, contrary to the Tribunal’s finding, it is possible to undertake this verification by a review of the NSW Ambulance records and Ms Klewer’s diary (for which she was not challenged). Consequently, Mr Klewer propounds that he was denied procedural fairness.

116    Unlike ground 2, it was difficult to understand the basis for this purported denial. It was clear that Mr Klewer, unlike in the case of ground 2, was on notice that the issue of the nature and frequency of his seizures was in issue.

117    The NDIA had put in issue the nature and frequency of the seizures in its amended SOFIC (at [46]–[49]):

Frequency of seizures

46.     There is no objective medical evidence as to the frequency with which the Applicant experiences seizures.

47.     The evidence as to the frequency with which the Applicant experiences seizures comes from the Applicant’s mother, including her reports to treating doctors and handwritten notes that appear to be Ms Klewer’s attempt to keep a seizure diary. The notes date from 26 August 2018 to 7 July 2019.

48.     In September 2018, the Applicant’s occupational therapist recommended a seizure watch to record the frequency of the Applicant’s seizures and provide an accurate record of the “all seizure activities including dates, times and lengths”. There is no evidence that the Applicant has purchased and used a seizure watch as recommended.

Nature of seizures

49.     The medical evidence gives rise to the issue of whether the seizures the Applicant has suffered since 2017 are psychogenic non-epileptic seizures as opposed to epileptic seizures. This is of some import.

(Footnotes omitted.)

118    In addition, the NDIA had foreshadowed that the nature (or cause) of the seizure posed different risks (at [53]):

Psychogenic seizures do not pose the same risks as epileptic seizures. They do not result in serious physical injury, although they can result in bumps or bruises.

(Footnotes omitted.)

119    The Tribunal picks up this issue, at T[31] and [32]:

31.     The Respondent’s case is that the Tribunal cannot be positively satisfied that the requested support of overnight care is reasonable and necessary for the purposes of the criteria in subsection 34(1) of the NDIS Act. The Respondent broadly approached its case by contending that the Tribunal could not be satisfied that overnight care is reasonable and necessary, based on the lack of evidence regarding the nature and frequency of Mr Klewer’s seizures, and that in any case, the exceptional circumstances referred to in the ‘Including Specific Types of Supports in Plans’ Operational Guidelines (the Operational Guidelines), which would usually exist to warrant a family member providing paid supports, were not made out in this matter.

32.     In its updated Statement of Facts, Issues and Contentions dated 9 September 2021 (the Respondent’s SFIC), the Respondent contended that there is no objective evidence as to the frequency of Mr Klewer’s seizures, and that the weight of evidence is that Mr Klewer is experiencing Psychogenic Non-epileptic Seizures (PNES) as opposed to tonic-clonic seizures. In its submissions at hearing, the Respondent submitted that there is no evidence of serious seizure activity since May 2021 when changes to Mr Klewer’s medication became effective. The Respondent also contended that: ‘Psychogenic seizures do not pose the same risks as epileptic seizures. They do not result in serious injury although they can result in bumps and bruises’.

(Emphasis in original; Footnotes omitted.)

120    This is consistent with the opening submission made by the NDIA’s counsel before the Tribunal:

There is an issue between the parties as to the frequency of the seizures and some of the evidence that the tribunal will later hear will be directed to that issue, and there is potentially an issue about the nature of the seizures, and some of the evidence the tribunal will hear will be directed to that issue as well, but ultimately all of those factual issues, those in dispute and those not in issue, distil into the assessment of whether the requested support of overnight care is reasonable and necessary for the purposes of the criteria in section 34(1).

121    And also in closing:

That’s all I wish to say about the 34 (indistinct) criteria. I might just very briefly sum up two key points. The first is, in my submission, the evidence about frequency and severity of the seizures, is not sufficient to satisfy the tribunal, that the requested support is reasonable and necessary in (indistinct) sense. I say that based on the evidence that the seizures settled down managed by medication since May 2021 this year. More specifically the requested support is in my submission not reasonable and necessary in the section 34(1) sense because it cannot satisfy all of the factors in that provision. In particular, this is a case where Ms Klewer on her own evidence states that she was providing his support since 2006 up to now. She accepts that it would be reasonable for her to continue to providing them even if the NDIS does not pay for it. And the evidence that she lives with her son now and will continue living with her son. Under the circumstances, in my submission, the tribunal should not find the requested supports are reasonable and necessary. And that the correct or preferrable decision is to affirm the decision under review. Unless I can assist you further, Deputy President, those are my decisions.

122    As the NDIA contends, Mr Klewer’s presentation of significant amounts of evidence (as noted below at [124]), including new evidence such as Ms Klewer’s diary notes (that were introduced at the hearing, supports the contention that Mr Klewer was alerted that the nature and frequency of his seizures were in issue.

123    Relevantly, the Tribunal accepted that Mr Klewer had seizures (at T[117]):

Taking all of the evidence into account, the Tribunal accepts, as does the Respondent, that Mr Klewer experiences seizures. The evidence of the neurologists variously concludes that the seizures could be a mixture of epileptic and psychogenic or panic attacks. No testing as recommended by the neurologists to ‘pinpoint the diagnosis’ has been completed. There is no evidence before the Tribunal which rules out pseudo-seizures. Significantly, none of the neurologists recommend that Mr Klewer is monitored overnight.

124    Mr Klewer contended that, contrary to the Tribunal’s finding at T[126] that “only five separate seizure incidents” were witnessed by paramedics, account should have been taken of the NSW Ambulance records before the Tribunal that indicate paramedics attended Mr Klewer in response to a seizure on approximately 30 separate occasions. Most of the records note the length of the seizure in minutes. The occurrence rate in these records in the period between January 2017 and May 2019, is around one seizure incident per month on which paramedics attended. According to Mr Klewer, the NSW Ambulance notes do not dispute the veracity of the reports of seizures taking place prior to their arrival and reported to the paramedics by Mr or Ms Klewer. Further, Mr Klewer submitted that the Coffs Harbour Hospital records are consistent with the ambulance records for the occasions where the ambulance transported Mr Klewer to hospital. Ms Klewer’s diary notes further verify several incidents.

125    Mr Klewer also relies on the fact that Ms Klewer was not cross-examined on the veracity of her reports of Mr Klewer’s seizures, nor was Mr Klewer. According to Mr Klewer, for him to be afforded procedural fairness, the Tribunal should either have alerted Mr Klewer to the prospect of the evidence as to seizures not being accepted and given him and/or Ms Klewer an opportunity to address the matter. Failing such a disclosure, the Tribunal should not have made the finding that it was not possible to verify the nature or frequency of Mr Klewer’s seizures. This submission is rejected. Mr Klewer was alerted to the prospect that the “nature” and “frequency” of the seizures was in issue as outlined above.

126    To the extent that Mr Klewer contests the Tribunal’s purported “non-acceptance” of the NSW Ambulance records and Ms Klewer’s diary, this submission, properly categorised, is one about weight and strays into impermissible merits review.

127    As the NDIA submitted, the Tribunal’s findings in the impugned paragraphs concerning its lack of satisfaction as to the frequency and intensity of Mr Klewer’s seizures should be considered in the context of its analysis of the evidence as a whole. In particular, at T[66], the Tribunal recorded that “Ms Klewer asserts that the diary is evidence of the number of seizures Mr Klewer experiences, although she acknowledged in cross examination that [Mr Klewer’s] seizures had improved since May 2021”. The Tribunal’s footnote to this paragraph refers to the transcript of the hearing before the Tribunal, at page 24, lines 19–20, in which Ms Klewer acknowledged (during cross-examination) that Mr Klewer’s seizures had reduced in frequency. At T[118], the Tribunal then recorded that “I find that Mr Klewer has experienced no serious seizure activity since the medication change took effect in May 2021”. The footnote to this sentence refers to the transcript, a page 18, lines 1–2, which records Ms Klewer saying in cross-examination that “since May things have improved”.

128    Accordingly, this ground fails for the following reasons: first, the issue of the frequency and intensity of Mr Klewer’s seizures was clearly put in issue; secondly, Ms Klewer gave evidence about this issue in cross-examination, which the Tribunal was entitled to use in finding that it could not be satisfied of the intensity and frequency of Mr Klewer’s seizures as asserted; and thirdly, the Tribunal’s finding was open to it, given it related to a question of fact for the Tribunal to determine on the merits.

Ground 5: Expert evidence on need for overnight care

129    Ground 5 concerns one of the Tribunal’s findings at T[150]. The entire paragraph is extracted as follows:

I agree with the Respondent’s contention that there is insufficient evidence for me to be satisfied as to the nature of Mr Klewer’s seizures, and there is no evidence from a neurologist to support the need for overnight care. I also agree with the Respondent’s contention, based on the evidence of Dr Ashkar, that the evidence does not seem to suggest that having this sort of support will enhance Mr Klewer’s independence in any way, noting his goal to be as independent as he is able in all daily living tasks, and that one of the core principles that underpins the NDIS Act is the enhancement of a participant’s sense of independence.

130    Mr Klewer contends that, by the Tribunal finding that there was no evidence that would satisfy it “of the nature of Mr Klewer’s seizures” and that “there is no evidence from a neurologist to support the need for overnight care”, the Tribunal applied the wrong legal test in regarding those matters as necessary for it to come to a conclusion in Mr Klewer’s favour. Mr Klewer submitted that the Tribunal was “elevating evidence from a neurologist ... specifically what type of seizure and the underlying brain chemistry of the applicant and how that related to his need for overnight care” to a mandatory relevant consideration. In his submission, the Tribunal was required to consider all of the evidence regarding the frequency of Mr Klewer’s seizures (regardless of their cause) and their physical impact upon him and the Tribunal failed to take into account the physical risks that Mr Klewer suffered from the seizures, which were related also to his visual and physical impairments. Mr Klewer contended what was in issue before the Tribunal was not what type of seizure was suffered but their impact.

131    Mr Klewer drew my attention to the evidence of Mr Lucas as to his need for overnight care. According to Mr Klewer, as the Tribunal summarised at T[90]–[99], Mr Lucas’s evidence was that, without Ms Klewer’s overnight monitoring of Mr Klewer, he would suffer physically and psychologically, and that taking a “pragmatic” rather than idealised view of the specific family dynamic, night monitoring by Ms Klewer was the best option. Mr Klewer submits that disregarding this evidence cuts against the principles for NDIS plan, including the fact that they need to be individualised, directed by the participant, consider and respect the role of family, and promote the individual goals and needs of the participant: see NDIS Act ss 31(a)–(c), (f), (i), (j). Mr Klewer submits that it also cuts against cl 11.1 of the “Including Specific Types of Supports in Plans Operational Guideline – Sustaining informal supports”, which deals with providing NDIS funding for family support, and which requires consideration of the participant’s “strong personal views” as to privacy and dignity, as well as cultural factors (as extracted at T[35]). Mr Klewer contends that the Tribunal dealt with these matters erroneously: at T[166].

132    In addition, reference was made by Mr Klewer to the evidence of Dr Ashkar who also agreed with Mr Lucas’s evidence in this regard, stating that Mr Klewer “feels comfortable and safe in [Ms Klewer’s] care throughout the night, and I agreed that that would be the case”. Dr Ashkar’s disagreement was as to the nature or frequency of the seizures, which Mr Klewer contends is a matter that is not within Dr Ashkar’s expertise and which was evidenced by contemporaneous records. Mr Klewer further submits that the report by Ms Gemma Evans, an occupational therapist (OT Report), also gave expert recommendation to overnight monitoring by Ms Klewer. As such, there was expert evidence before the Tribunal as to the need for overnight care, and for the Tribunal to instead require specific neurologist evidence was to impose an incorrect legal test in the form of a requirement that is not set out in legislation.

133    I do not accept Mr Klewer’s submission that the Tribunal’s consideration of the absence of this kind of evidence (namely evidence from a neurologist), constituted the application of a wrong legal test. Contrary to Mr Klewer’s submission, the type of seizure was in issue, as referred to in my reasoning with respect to ground 4: The type (or cause) of seizure had bearing on the possibility of and likely harm to be suffered by Mr Klewer given the type (or cause) of seizure may have different, corresponding risk(s).

134    I accept the NDIA’s submission that the Tribunal made the observation that there was no evidence from a neurologist in the context of its assessment of s 34(1)(d); i.e., whether the support would be “effective and beneficial” having regard to current good practice. The impugned observation must also be considered in the context of what the Tribunal said at T[147], where it noted: “[t]he Respondent contended that, in the absence of a firm diagnosis from the neurologists who have examined Mr Klewer that the seizures are epileptic, nor evidence that they recommend overnight seizure monitoring, the Tribunal cannot be satisfied that overnight care will be, or is likely to be effective”. A fair reading indicates that the Tribunal’s observation was responsive to the NDIA’s submissions about a weakness in Mr Klewer’s evidence relevant to the assessment of s 34(1)(d).

135    I also accept the NDIA’s submission that a fair reading of the Tribunal’s reasons, as a whole and in context, demonstrates that it did not “require” evidence from a “neurologist” as a condition for a favourable decision, and thereby disregarded the applicant’s expert evidence. To the contrary, the Tribunal made a number of findings about, and weighed up all of, the expert evidence, but was simply not satisfied on the material available that the requested support met the criterion in s 34(1)(d) of the NDIS Act. Evidence from a neurologist could be relevant to the matters in issue and the Tribunal’s lack of satisfaction was informed by the absence of relevant evidence.

Ground 6: The seizure watch

136    By ground 6, Mr Klewer contends that the Tribunal, at T[145] and [167], in finding that a seizure monitoring watch was an adequate alternative to overnight monitoring of Mr Klewer by Ms Klewer, failed to take into account two relevant considerations:

(a)    A seizure watch would not enable timely protection of Mr Klewer from injury given the evidence of the nature of his seizures, and his room set-up, owing to his vision disability. Further, material before the Tribunal from Epilepsy Action Australia stated the following (in relation to seizure watches and alarms): “There is no guarantee that these are 100% effective. Monitors and alarms don’t guarantee safety or detection of all seizures”.

(b)    In the event a seizure watch were used, Ms Klewer would nonetheless be providing overnight care for Mr Klewer, as she would be a person alerted by and would respond to the seizure watch.

137    At hearing, Mr Klewer articulated the purported failure of the Tribunal to undertake its statutory review task in the following way:

(a)    a failure to take into account mandatory relevant considerations; or

(b)    a failure to engage with and evaluate evidence and submissions put before it.

138    Paragraphs T[145] and [167] are extracted as follows:

145.     Taking the evidence into account and based on the findings set out above that overnight care for Mr Klewer is not required, I accept the Respondent’s submissions and consider that funding Ms Klewer to provide overnight care to Mr Klewer does not represent value for money, in that the costs are not reasonably relative to both the benefits achieved and the cost of the alternative support. This is the case irrespective of whether the funding sought is that which was crystallised on 15 February 2019 or the lesser amount proposed by Ms Klewer in her closing submissions as outlined in paragraph [28]. This finding is reinforced by my finding that if overnight care were required it would be better provided by way of a seizure watch which would cost less than Ms Klewer being funded to provide the care and achieve a benefit of increasing Mr Klewer’s independence, and decreasing the level of control exercised over Mr Klewer by Ms Klewer.

…

167.     Given the findings set out above that I cannot be satisfied that Mr Klewer requires overnight care, that such a support will not assist him to pursue the goals, objectives and aspirations included in his plan, nor will it assist him to undertake activities so as to facilitate his social and economic participation, nor does the support he seeks represent value for money in that its costs are reasonable, relative to both the benefits achieved and the cost of alternative support (such as a seizure watch), nor is the support likely to be effective and beneficial for Mr Klewer, having regard to current good practice. Further, as I am not satisfied that the support should be provided, I cannot be satisfied that the funding of the support sought takes account of what it is reasonable to expect families, carers, informal networks and the community to provide. Nor can I be satisfied that the support is most appropriately funded or provided through the NDIS, as I am not satisfied that it needs to be provided at all.

139    Mr Klewer submitted that the OT Report, which is referred to by the Tribunal at T[69] and [103], recommended that a seizure watch be used “to determine whether there is a pattern of events”, but not as a replacement for overnight care. Ms Evans recommended that monitoring by Ms Klewer be maintained, that cushioning around the bed continue, and to consider a period of transition to a seizure watch or online monitoring system until Ms Klewer became confident in the use of the equipment.

140    Given the OT Report’s findings, Mr Klewer contends that the evidence was not that a seizure watch was a replacement for overnight care. Rather, it had the potential to complement overnight care in a potential transitional period. The Tribunal failed to have regard to these relevant considerations in making its finding at T[145] and [167] in relation to the seizure watch.

141    For the following reasons I do not accept Mr Klewer’s submissions.

142    I note that Mr Klewer does not identify particular statutory provisions nor parts of the broader NDIS statutory framework which may create an obligation to consider the abovementioned matters (and therefore for them to be mandatory). As referred to in Lo, extracted at [45] above, the “relevant” or “mandatory” consideration must be one that the decision-maker is bound to take into account because of the express terms of the statute or by implication from its subject matter, scope and purpose.

143    I accept the NDIA’s submission that the relevant statutory context for the Tribunal’s impugned findings at T[145] and [167] is s 34(1)(c) of the NDIS Act, which requires the Tribunal to be satisfied that the requested support “represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the costs of alternative support”.

144    In this context, the Tribunal found, as an alternative finding, (at T[145]) that “if overnight care were required it would be better provided by way of a seizure watch which would cost less than Ms Klewer being funded to provide the care and achieve a benefit of increasing Mr Klewer’s independence, and decreasing the level of control exercised over Mr Klewer by Ms Klewer” (emphasis added). The alternative finding was made as the Tribunal was not satisfied on the primary issue (i.e., the need for overnight care) and any finding it made as to appropriateness of a seizure watch must, in this context, be seen as an alternative finding.

145    Similarly, at T[167], the Tribunal reiterates that “nor does the support [Mr Klewer] seeks represent value for money in that its costs are reasonable, relative to both the benefits achieved and the cost of alternative support (such as a seizure watch)”. It may be inferred that this was a reference to the requirement in s 34(1)(c). However, it is apparent from the Tribunal’s reasons at T[167] that the Tribunal was not satisfied of the other requirements of s 34(1).

146    Accordingly, I am not satisfied that the matters raised by Mr Klewer, are supportive of the first basis of this ground.

147    As to the second, regarding the Tribunal’s failure to engage with and evaluate evidence and submissions put before it, relying on the reasoning of Thawley J in National Disability Insurance Agency v KKTB, by her litigation representative CVY22 [2022] FCAFC 181 at [163] (whilst in dissent, albeit not in principle), I accept the soundness of his Honour’s summary of the relevant principles and its application to this case. Part of its elegant elucidation of the principles of procedural fairness includes the need for a “real evaluation”, the degree of which “depends on the particular statutory context and the length, clarity and relevance of the submissions”: citing Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 at [26]. Relevantly here, as submitted by the NDIA, account must be taken, when considering the extent of the required engagement with particular submissions and evidence, of the fact that in Mr Klewer’s case, the findings regarding the seizure watch were in the alternative. One is not required to address a matter which is not critical to the ultimate outcome.

148    Mr Klewer did not identify in his submissions or oral address where either of the matters referred to at [136] above were in fact submissions made to the Tribunal below. It is clear that despite it being an alternative finding, the Tribunal considered in numerous parts of its reasons the evidence regarding the efficacy of the seizure watch: See for example: T[69], [86], [87], [103], [127], [144], [145] and [167].

149    As to the purported failure to evaluate and engage with the evidence regarding the seizure watch not enabling “timely protection” from injury, it is clear that the Tribunal referred to Ms Klewer’s evidence and submissions, in part, at T[69], [86], [87] which are extracted as follows:

69.     The possibility of using a seizure watch, specifically a Empatica Embrace Smartwatch, as recommended Ms Evans in her report dated 8 October 2018, was raised with Ms Klewer. She was adamant, despite clear longstanding evidence to the contrary, that a seizure watch would sound an alarm in Mr Klewer’s bedroom, thus possibly disturbing him, given his very good hearing, and therefore possibly causing a seizure. Ms Klewer questioned Ms Evans’s expertise to recommend a seizure watch. She said that she could not see the benefit in a seizure watch as it is not medication nor will it stop seizures. She did not see any advantage in terms of enhancing Mr Klewer’s independence as a result of being able to be monitored from another room. She considered a seizure watch, being made of metal, posed a risk to Mr Klewer as he could hurt himself, particularly his face during ‘vigorous twitching’ which she reports occurs during seizures. Ms Klewer expressed doubt about the reliability and accuracy of a seizure watch. To the extent that a seizure watch could provide a record of seizure activity, Ms Klewer said that she was already keeping a record, and no neurologist had asked her to obtain a seizure watch.

…

86.     With respect to a seizure watch, Ms Klewer asked Ms Burford to comment upon whether it is possible to ensure that timely assistance can be provided to a user in circumstances where the person assisting is out of the room. Her premise was that should Mr Klewer fall, someone in another room could not reach him in time to aid him, however Ms Burford did not respond directly to that question.

87.     Ms Burford confirmed that seizure watches could alert up to five persons including emergency services, that some seizure watches made a record of seizure activity, and that she did not ‘believe the alarm goes off in [Mr Klewer’s] room’.

(Footnotes omitted.)

150    Regarding the fact that the provision of the watch would not alleviate the requirement that Ms Klewer would nonetheless be providing overnight care: It is not clear that this submission was made by Ms Klewer at the hearing before the Tribunal. It is clear from the Tribunal’s consideration of the evidence that this consequence was understood by the Tribunal, as can be seen from T[69] and [86] above. These paragraphs refer to the fact of Mr Klewer being monitored or assisted by the activation of the seizure watch by someone out of the room. Further, when considering the evidence of Ms Evans, the Tribunal extracted a portion of her report which stated: “This watch will enable [Mr Klewer] the potential to be able to sleep in a room of his own whilst still alerting Ms Klewer of seizure episodes in a timeframe that allows her to access and provide medical supports quickly and as required”: T[103]. Lastly, consideration was given to the availability of the option of Mr Klewer wearing a seizure watch, when the Tribunal addressed the criterions under s 34(1)(e) (taking account of what it is reasonable to expect of families) and s 34(1)(f) (most appropriately funded by or provided through the NDIS) of the NDIS Act. As part of this aspect of the Tribunal’s reasoning, consideration was given to what supports Ms Klewer already provides and “will continue to provide”, as contained in T[156] and [157]:

156.     The Respondent’s submissions at hearing relied on Ms Klewer’s evidence that she will continue to provide care for Mr Klewer irrespective of the decision of the Tribunal. The submission also referred to the fact that Mr Klewer lives with Ms Klewer. Subsection 33(5) of the NDIS Act provides that in deciding whether to approve the statement of participant’s supports the CEO must have regard to the participant’s statement of goals and aspirations, which by reference to subsection 33(1) of the NDIS Act must include a statement which specifies the environmental and personal context of the participant’s living, including the participants:

(i)    Living arrangements; and

(ii)     Informal community supports and other community supports; and

(iii)     Social and economic participation.

157.     It follows therefore, the Respondent submitted, that given that Ms Klewer lives with Mr Klewer and will continue to do so, and will continue to provide care for him, that means it is reasonable for her to continue to do so and not be funded by the NDIS.

(Footnotes omitted.)

151    In response Mr Klewer’s submission was that the NDIA “should not seek to take advantage of Ms Klewer”, as can be seen at T[158]:

Mr Klewer’s submissions in response to this submission are that the Respondent should not seek to take advantage of Ms Klewer, and that compared to supports provided in other matters these were reasonable supports to request. Ms Klewer submitted that it takes a great deal of courage to support Mr Klewer and that without her care he would have had to go to hospital far more frequently. It would be inhumane for him to be left alone at night because his seizure activity had reduced since May 2021. Epilepsy is a serious condition with considerable risk, including violence associated with the seizures and that Mr Klewer needs Midazolam as injected by her. Mr Lucas considers that as Ms Klewer and Mr Klewer live together it is a pragmatic solution, and Dr Wong, on the assumption that a night-time carer is needed, considers that ‘it makes sense that while Mr Klewer is living with [Ms Klewer], she remains his night carer’.

(Footnotes omitted.)

152    At T[160], the Tribunal finds “[a]s is set out above, I do not consider that Mr Klewer requires overnight care from Ms Klewer. If any overnight monitoring is needed it can occur by way of low-cost assistive technology” (emphasis added).

153    By reason of these extracts, a fair reading of the Tribunal’s reasons demonstrates that the Tribunal was aware of the possibility of Ms Klewer nonetheless providing some form of overnight care.

154    The Tribunal was not required to engage in reasoning to address specifically every possibility in which Mr Klewer’s mother might provide care. Mr Klewer’s argument on this ground seeks to engage the Court in impermissibly reviewing the merits of the decision and does not establish an error of law.

Ground 3: Whether the Tribunal applied the wrong legal test

155    Mr Klewer submits that a major “plank” of the Tribunal’s reasoning was its finding that Mr Klewer’s seizure activity had reduced following a medication change in the six-month period from May 2021 to the hearing before the Tribunal in November 2021: see T[118], [126], [128], [137], [167]. However, according to Mr Klewer, the matter for consideration before the Tribunal concerned Mr Klewer’s statement of participant supports in his NDIS plan for the period between 31 May 2018 and 31 May 2019. The reviewable decision was that of 23 July 2018 and not a decision about what participant supports an applicant should have for any time after 31 May 2019. As a consequence, Mr Klewer submitted that any facts post-dating the period of the plan were irrelevant.

156    The resolution of this ground involves a consideration of what was the “review decision” before the Tribunal: Was it the 23 July 2018 decision or was it, by virtue of the interactive operation of the AAT Act (s 42D in particular) and the NDIS Act, or the NDIS Act solely, the most recent decision of the CEO? In essence, Mr Klewer claims that the Tribunal was only able to review the 23 July 2018 decision and to provide retrospective reimbursement of the monies not received by Mr Klewer for his mother’s overnight care and the Tribunal’s review was not a forward-looking process, where the Tribunal was making a decision in 2021 about what participant supports should have been provided after 31 May 2019.

157    Mr Klewer contends that the context of the NDIS Act makes it clear that an NDIS participant’s plan, and the statement of participant supports contained therein, is for a specified period of time: NDIS Act ss 32–34, 37. These are the supports that are reasonable and necessary for the participant in that period of time.

158    In this context, Mr Klewer contends that the Tribunal has previously held that where an NDIS participant seeks internal review, and then merits review before the Tribunal, of a decision made under s 33(2) of the NDIS Act to approve the statement of participant supports in their plan that covers a particular period of time, the Tribunal’s task is to consider whether that is the correct and preferable decision for that plan and that period of time, notwithstanding that the period is, by that point, in the past, and subsequent plans have been issued: see Williamson and National Disability Insurance Agency [2019] AATA 2944 at [13]; RTRH and National Disability Insurance Agency [2022] AATA 205 at [98], [112], [163]; Rogers and National Disability Insurance Agency [2022] AATA 2809 at [11]–[22].

159    Mr Klewer submits that the statutory scheme would be frustrated if an alternative construction were adopted. He provided the following example:

Consider a NDIS participant with a legitimate need for a certain support in Year 1 and Year 2, who was erroneously denied that support by the NDIS and who applies for Tribunal review. By the time the matter can come on for Tribunal hearing it is Year 3. During in [sic] Year 3 and before the hearing, the applicant’s circumstances change and they no longer need that support. If the Tribunal was limited to deciding the application on the facts as at the hearing date, they would be bound to dismiss the application. This would have the result of the participant’s legitimate statutory entitlement to funding for the support in Year 1 and Year 2 evaporating in a permanent lacuna. The size of the lacuna would, absurdly, depend on how quickly (or slowly) a participant’s matter could come on for hearing in the Tribunal.

160    Mr Klewer contends that such an outcome would frustrate the objects of the NDIS Act, including: (a) the principle that “people with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime” (s 4(3) of the NDIS Act); and (b) the principle that a participant’s plan be “directed by the participant” and “underpinned by the right of the participant to exercise control over his or her own life” (ss 31(b) and (g) of the NDIS Act).

161    Given the above, Mr Klewer submits that it was erroneous for the Tribunal to take into account Mr Klewer’s seizure rate improvement between May 2021 and November 2021 (at T[118], [126], [128], [137] and [167]). This fact was irrelevant to the task before the Tribunal of reviewing Mr Klewer’s statement of participant supports contained within his NDIS plan between 31 May 2018 to 31 May 2019.

162    By contrast, the NDIA submits that Mr Klewer’s argument, namely that the Tribunal misapplied the law by considering the latest material before it for the purposes of reviewing a decision under s 33(2) of the NDIS Act, should be rejected.

163    The NDIA relied upon the applicable principle in merits review proceedings that “[w]hen making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available”: see Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [41] (per Kirby J). In Drake at 589, Bowen CJ and Deane J stated that “[t]he question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal”. Further, in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [13], Gleeson CJ, Gaudron and Hayne JJ observed that “[i]n the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing”.

164    The NDIA submits that the abovementioned principles are consistent with the relevant provisions of the NDIS Act and the function of the Tribunal in this case. In McGarrigle v National Disability Insurance Agency [2017] FCA 308; 252 FCR 121, Mortimer J (as the Chief Justice then was) explained the Tribunal’s functions in the context of reviewing decisions under the NDIS Act as follows (at [85]):

Section 99 of the Act identifies the decisions under the Act which are reviewable by the Tribunal. Included in this list are decisions made under s 33(2). Section 33(2) must be read with s 32 — the obligation to “facilitate” the preparation of a participant’s plan. In that context s 33(2), stating as it does in mandatory language what a plan must specify, confers an additional function on the CEO (and her or his delegate) of “approving” the necessary or reasonable supports required by the participant. This is confirmed by several other provisions. First, s 33(2)(b) which speaks of supports “that will be funded” — meaning, in my opinion, those supports the CEO approves to be funded. Second, s 37, which provides that a plan only comes into effect when approved by the CEO, and third, s 39 which imposes a duty on the Agency to comply with a statement of participant supports. 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.

165    The NDIA contends that the Tribunal did not make an error of law by assessing the criteria in s 34(1) and making its decision under s 33(2) based on material before it at the time of the decision. This argument is further supported by s 37 of the NDIS Act. Section 37(1)(b) relevantly provides that a participant’s plan “comes into effect when the CEO has … approved the statement of participant supports”. Section 9 defines “statement of participant supports” as having “the meaning given by subsection 33(2)”. And s 37(3)(a) relevantly provides that “[a] participant’s plan ceases to be in effect … when it is replaced by another plan under Division 4”. The NDIA submitted that s 49 of the NDIS Act (in its current form) also supports its argument. However, given that the applicable section was in a materially different form, I find this submission unpersuasive.

166    Given the above, the NDIA submits that there is no legal error in the Tribunal specifying in a statement of participant supports approved under s 33(2)(b) the reasonable and necessary supports “that will be funded” for a new plan that then “comes into effect” pursuant to s 37(1) of the NDIS Act, rather than approving only the reasonable and necessary supports for the “period the subject of the relevant Statement of the [sic] Participant Supports under review”, as Mr Klewer’s application suggested. What the NDIA submits is evident from the above analysis of the statutory provisions, and particularly s 33(2)(b) concerning the supports that “will be funded” in a newly approved statement of participant supports which must have a review date in the future, is that Mr Klewer is wrong in his submission that “[t]hese are the supports that are reasonable and necessary for the participant in that period of time” (emphasis added). The words emphasised in Mr Klewer’s submissions are contrary to the statutory language which provides that the decision-making function is to approve reasonable and necessary supports that “will be funded” for a future plan. Therefore, the Court should not accept Mr Klewer’s criticism of the Tribunal’s “finding that [Mr Klewer’s] seizure activity had quietened down, after a medication change, in the six-month period from May 2021 to the hearing in November 2021”. The statutory scheme made this fact especially probative for a decision under s 33(2) of the NDIS Act.

167    For the reasons which follow, this ground is not made out. Mr Klewer did not run his case before the Tribunal on the basis that he was seeking retrospective reimbursement for the overnight care provided by his mother, between 2018 and 2019. Rather, consistent with the NDIA, Mr Klewer was asking the Tribunal to determine, in the current circumstances, whether overnight care was a reasonable and necessary support. By consent, Mr Klewer and the NDIA obtained orders which varied and remitted the reviewable decision, which ultimately led to the then current 2021 plan being the reviewable decision; that plan started on 7 June 2021 and had a review date of 7 June 2022.

The case as run before the Tribunal

168    The Tribunal understood that the question it was being required to answer was, as set out at T[28], “whether overnight care for 10 hours per night 7 days per week is a reasonable and necessary support for Mr Klewer, and, if so, whether Ms Klewer should be funded to provide that support” (emphasis added). The point in time being considered on review depends on what was the internal review decision before the Tribunal.

169    The Tribunal did not misunderstand the question being asked of it but rather acted in a manner consistent with what the parties had asked of it.

170    The NDIA had submitted consistently from 2019 that the question to be determined was whether overnight care for 10 hours a night is a reasonable and necessary support, and if so, whether it should be funded to provide that support, in its SOFIC and its amended SOFIC.

171    At the hearing before the Tribunal, the NDIA counsel submitted in opening that the plan or decision being reviewed was the then-current 7 June 2021 plan (with a review date of 7 June 2022):

[t]he central issue that emerges is whether the tribunal should approve funding for an additional support on top of a plan that the applicant currently has or [sic] 10 hours a day, seven days a week, of overnight care to be provided by Ms Klewer.

For completeness, can I just take the tribunal to the current plan … has a plan review date of 7 June 2022…

The reason for me taking you here is simply just to provide the broader context to identify the relevant plan that is currently being reviewed, because I think what has happened is that through a series of section 42(d) [sic] determinations, this is the plan that has come out of it and is currently on foot, and so at a technical level this is the plan that’s under review before the tribunal. What is ultimately in issue before the tribunal is whether, on top of what’s already funded in this plan, and the total supports, the tribunal will see at page 615; so the real matter in issue is whether, on top of what’s funded already in this plan there should be funding approved for the 10 hours, seven days a week of overnight care provided by Ms Klewer.

(emphasis added)

172    Despite the indecipherability of Ms Klewer’s opening submissions from the transcript (the transcription was incomplete, presumably due to sound quality issues arising from the remote hearing), it is clear from the evidence relied upon by Ms Klewer that Mr Klewer was seeking for the Tribunal to review the 2021 plan (and therefore that decision, rather than the 2018 reviewable decision). This is because Ms Klewer’s submissions and evidence concerned Mr Klewer’s current need, at the time of the hearing (being November 2021), for the overnight support. This is evident from Mr Klewer’s reliance upon medical reports which post-dated the 2018 to 2019 period. For example, he relied upon a report from Dr Wong, Clinical Neuropsychologist, dated 30 November 2020, a letter from Ms Burford, Epilepsy Nurse Specialist, dated 17 May 2021, reports of Mr Lucas in 2021, hospital records from 2020, ambulance records from 2017 to 2020 and Ms Klewer’s handwritten diary notes as to Mr Klewer’s seizures between July 2019 and 3 May 2021. Ms Klewer never submitted that the Tribunal’s review was limited to the 2018 to 2019 period for which he was seeking a retrospective reimbursement payment for his mother’s overnight care provided over that period. Rather, Mr Klewer’s mother made submissions on his behalf as to why Mr Klewer needed, as at the time of the Tribunal’s review, the overnight supports.

173    It is also clear that it was the intention of the parties that the Tribunal’s review would be of the Tribunal’s most recent decision, in the form of the most recent plan made by virtue of the various consent orders (including by way of remittal) in the period between when the application was commenced and the hearing.

What was the relevant decision before the Tribunal?

174    It is my view that, as the NDIA contends, the consequence of the Tribunal’s orders (as set out below) is that Mr Klewer is incorrect to assert (inconsistently with his position before the Tribunal) that “the matter before the Tribunal was the statement of participant supports in the applicant’s NDIS plan for the period 31 May 2018 to 31 May 2019”.

175    This contention overlooks the Tribunal’s correct observation at T[12] that “[s]ince the application for review, there have been a number of further decisions made by the Respondent pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) [AAT Act]…to ensure the continuity of funding for Mr Klewer of the reasonable and necessary supports not in contention while the proceedings before the Tribunal are on foot”.

176    The NDIA relied, at hearing, on the latest decision made under s 42D of the AAT Act, which allowed for a plan that covered the period from 7 June 2021 to 7 June 2022.

177    It became apparent during argument that the Court did not have before it the full complement of orders and the relevant plans relied upon by the NDIA, and nor did Mr Klewer. The NDIA was granted leave to file additional evidence after the hearing and additional submissions, which led to the matter being adjourned and then being resumed shortly after the material was filed.

178    The material revealed that the internal review decision dated 23 July 2018 confirmed a reviewable decision made under s 33(2) on 31 May 2018 to approve a statement of participant supports in Mr Klewer’s plan. That plan began on 31 May 2018 and had the prescribed review date of 31 May 2019.

179    On 30 May 2019, the Tribunal made orders, by consent, pursuant to s 26(1)(b) of the AAT Act, altering the internal review decision dated 23 July 2018 in the following way:

The Respondent wishes to alter the decision of 23 July 2018 as follows:

1.    the following supports, which are reasonable and necessary supports in accordance with section 34 of the National Disability Insurance Scheme 2013 (Cth) (“NDIS Act”), will be extended:

a.     the funding for choice and control is extended from $1,327.27 to $2,151.20;

b.     the funding for improved daily living is extended from $8,213.68 to $14,070.52;

c.     the funding for transport is extended from $2472 to $3708;

d.     the funding for core supports is extended from $15,873.90 to $23,810.85; and e. the funding for support coordination is extended from $5,081.64 to $7,674.72.

e.     the funding for support coordination is extended from $5,081.64 to $7,674.72.

The Applicant consents to the making of the alteration.

Pursuant to section 26(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), the Tribunal consents to the making of the alteration.

180    On 27 November 2019, the Tribunal made orders in the following form:

IT IS ORDERED that, in accordance with section 42D of the Administrative Appeals Tribunal Act 1975 (Cth), the decision under review made under section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) on 23 July 2018, is remitted to the Chief Executive Officer of the Respondent for reconsideration on or before 5 December 2019.

181    On 13 December 2019, the Tribunal made further orders in the following form:

IT IS ORDERED that, in accordance with subsection 42D(6) of the Administrative Appeals Tribunal Act 1975 (Cth), the time for the Minister to reconsider the decision under review made under section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) on 23 July 2018, is extended to 16 December 2019.

182    A new plan was approved and began on 16 December 2019 with a review date of 15 June 2020.

183    On 4 June 2020, the parties made application to the Tribunal for it to remit the 23 July 2018 decision to the CEO for reconsideration. The application was in the following form:

1.     References to provisions in an Act are references to provisions in the National Disability Insurance Scheme Act 2013, unless otherwise stated.

2.     The Applicant and Respondent (the Parties) have agreed that the decision under review, made under s100(6) on 23 July 2018, should be remitted to the Chief Executive Officer of the Respondent (the CEO) for reconsideration, pursuant to s42D(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act).

3.     The Parties consider it desirable to remit the matter for reconsideration, having regard to:

(a)     the need to ensure that the Applicant has continued access to supports while this matter remains in the Tribunal;

(b)     the Respondent’s obligation to conduct a review of the Applicant’s plan by 15 June 2020 (the review date); and

(c)     the Respondent’s intention to recommend to a delegate that:

(i)     the review date should be varied to 16 June 2021; and

(ii)     the reasonable and necessary supports in the existing statement of participant supports should be provided on a pro rata basis, for the period 16 June 2020 to 16 June 2021 (the extension period).

4.     The parties request that the Tribunal remit the decision under review to the CEO, pursuant to s42D(1) of the AAT Act.

5.     With respect to s42D(5) of the AAT Act, the Parties agree that an appropriate period within which the CEO must reconsider the decision would be 5 business days after the day on which the Tribunal informs the Respondent of the decision to remit.

(Emphasis in original.)

184    On 4 June 2020, the Tribunal made further orders by consent the following form:

IT IS ORDERED that, in accordance with section 42D of the Administrative Appeals Tribunal Act 1975 (Cth), the decision under review made under section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) on 23 July 2018, is remitted to the Chief Executive Officer of the Respondent for reconsideration on or before 11 June 2020.

185    Following this order, a new plan was approved. It commenced operation on 17 June 2020 and contained a review date of 17 June 2021.

186    On 31 May 2021, the parties made an “Application for Remittal of Decision – Section 42D of the Administrative Appeals Tribunal Act 1975”, which was as follows:

1.     References to provisions in an Act are references to provisions in the National Disability Insurance Scheme Act 2013, unless otherwise stated.

2.     The Applicant and Respondent (the Parties) have agreed that the decision under review, made under s100(6) on 17 June 2020, should be remitted to the Chief Executive Officer of the Respondent (the CEO) for reconsideration, pursuant to s42D(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act).

3.     The Parties consider it desirable to remit the matter for reconsideration, having regard to:

(a)     the need to ensure that the Applicant has continued access to supports while this matter remains in the Tribunal;

(b)     the Respondent's obligation to conduct a review of the Applicant's plan by 17 June 2021 (the review date); and

(c)     the Respondent's intention to recommend to a delegate that:

(i)     the review date should be varied to 17 December 2021; and

(ii)     the reasonable and necessary supports in the existing statement of participant supports should be provided on a pro rata basis, for the period 17 June 2021 to 17 December 2021 (the extension period).

4.     The parties request that the Tribunal remit the decision under review to the CEO, pursuant to s42D(1) of the AAT Act.

5.     With respect to s42D(5) of the AAT Act, the Parties agree that an appropriate period within which the CEO must reconsider the decision would be 5 business days after the day on which the Tribunal informs the Respondent of the decision to remit.

187    As can be seen from the above, after remittal of the 23 July 2018 decision by the Tribunal on 4 June 2020, a new plan was made on 17 June 2020. That plan was referred to by the parties as the “17 June 2020” decision, which the parties agreed (in the orders of the Tribunal made on 31 May 2021) should be remitted to the CEO, which comprised the “decision under review” made under s 100(6) of the NDIS Act.

188    However, on the same date the Tribunal made the following order:

Pursuant to subsection 42D(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal remits the decision under review to the Respondent for reconsideration, that being the decision of the delegate of the Chief Executive Officer for the Respondent dated 23 June 2018.

Pursuant to subsection 42D(5) of the Administrative Appeals Tribunal Act 1975 (Cth), the Respondent is to reconsider the decision within 5 business days of receiving this order.

189    It appears that the Tribunal made a transposition error and while it ordered the remittal of a decision of “23 June 2018”, it intended to effect the intention of the parties (as contained in their consent application at [186]) to remit the 17 June 2020 decision, being the previous plan. A new plan was approved and began on 7 June 2021 with a review date of 7 June 2022.

190    Accordingly, there were a number of orders made, by consent, that had the effect of “altering” the reviewable decision pursuant to s 26(1)(b) of the AAT Act or ordering pursuant to s 42D of the AAT Act that the 23 July 2018 decision be remitted for reconsideration. Mr Klewer has not appealed any of those orders.

191    Section 42D of the AAT Act provides:

42D     Power to remit matters to decision-maker for further consideration

(1)     At any stage of a proceeding for review of a decision other than a proceeding in the Social Services and Child Support Division, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.

Powers of person to whom a decision is remitted

(2)     If a decision is so remitted to a person, the person may reconsider the decision and may:

(a)    affirm the decision; or

(b)    vary the decision; or

(c)    set aside the decision and make a new decision in substitution for the decision set aside.

Note: For time limits, see subsection (5).

(3)    If the person varies the decision:

(a)    the application is taken to be an application for review of the decision as varied; and

(b)    the person who made the application may either:

(i)    proceed with the application for review of the decision as varied; or

(ii)    withdraw the application.

(4)     If the person sets the decision aside and makes a new decision in substitution for the decision set aside:

(a)     the application is taken to be an application for review of the new decision; and

(b)    the person who made the application may either:

(i)    proceed with the application for review of the new decision; or

(ii)    withdraw the application.

Time limits

(5)    The person must reconsider the decision, and do one of the things mentioned in paragraphs (2)(a), (b) and (c), within whichever of the following periods is applicable:

(a)     if the Tribunal, when remitting the decision, specified a period within which the person was to reconsider the decision—that period;

(b)     in any other case—the period of 28 days beginning on the day on which the decision was remitted to the person.

(6)     The Tribunal may, on the application of the person, extend the period applicable under subsection (5).

(7)     If the person has not reconsidered the decision, and done one of the things mentioned in paragraphs (2)(a), (b) and (c), within the period applicable under subsection (5), the person is taken to have affirmed the decision.

(8)     If the person affirms the decision, the proceeding resumes.

192    Mr Klewer submitted that s 42D is an “ancillary machinery provision” in the AAT Act, and that it would be “very surprising” if it had the “momentous” consequences for the NDIS that the NDIA contends that it does. Mr Klewer contended that all the Tribunal is reviewing is the 2018–2019 plan. Mr Klewer described the use of s 42D as merely an administrative practice ordinarily used by the Tribunal when it is of the view that the NDIA has not given consideration to a particular issue, or if it is more efficient for the NDIA to make a decision about a particular issue and then send it back to the Tribunal. Mr Klewer submitted that the purported remittals under s 42D “were not legally necessary” and are “probably not remittals at law” due to the inconsistency between the application for a remittal and what the relevant orders say is the decision that is being remitted to the NDIA. Mr Klewer submitted that s 42D was not engaged. This was said to be supported by the fact that, at T[12], the Tribunal referred to the numerous s 42D orders that had been made “to ensure the continuity of funding for Mr Klewer of the reasonable and necessary supports not in contention”. Mr Klewer contended that there was no remission of the “actual decision” and, even if there was, the decision by the NDIA to order that “so-called remission” was not setting aside the 2018–2019 plan. The 2018–2019 plan has not disappeared “into the ether”. Mr Klewer submitted that the effect of the construction argued for by the NDIA would result in previous plans dissolving, and along with them, an applicant’s right to challenge an earlier decision.

193    For the following reasons, I do not accept Mr Klewer’s submissions.

194    The effect of a remittal under s 42D of the AAT Act, and a subsequent decision by a respondent decision-maker (such as the NDIA), is that “the application is taken to be an application for review of the decision as varied” (s 42D(3)(a) of the AAT Act) or “of the new decision” (s 42D(4)(a) of the AAT Act).

195    I do not accept that s 42D was not engaged in this case. I accept the submission of the NDIA that the effect of the multiple remittals and subsequent plans, referred to above, demonstrate that s 42D was engaged in this case – particularly on 31 May 2021 when the Tribunal made the final order under s 42D prior to the hearing of this matter (orders are extracted at [188] above). Therefore, the consequence of the remittals was that the “matter before the Tribunal” was not the “NDIS plan for the period 31 May 2018 to 31 May 2019” but, rather, as the Tribunal observed, the supports still “in contention” under the extant plan at the time of its decision.

196    As a consequence of the operation of s 42D(4)(a) of the AAT Act, the application for review before the Tribunal was taken to be an application for review of the statement of participant supports contained in that statement of participant supports approved on 7 June 2021. This effect has been recognised in Syddall and National Disability Insurance Agency [2022] AATA 3738 at [6] per Meagher J. The application was therefore no longer an application for review in relation to the superseded plan. If, alternatively, the new plan is a variation of the previous plan, then s 42D(3)(a) would operate with a similar effect.

197    I accept the submission of the NDIA that, because the applicant’s notice of appeal did not challenge the validity of the order made on 31 May 2021 under s 42D (which the NDIA submitted could not, in any case, be the subject of an appeal under s 44 of the AAT Act, citing Kowalski v Repatriation Commission [2009] FCAFC 107; 259 ALR 444 at [18]–[21]), there was no basis not to give effect to the operation of s 42D.

198    Mr Klewer submitted that there was no “temporal aspect” to s 42D, and that it is a remittal power which only applies with respect to the original decision itself. Further, Mr Klewer submitted that, when you have a statutory regime (such as the NDIS Act) where a decision applies for a particular period and then you have a new decision coming into effect for a later period, s 42D does not have the effect of expanding the period of time that is the subject of review by the Tribunal. The plans made after the 2018-2019 plan were not, by virtue of s 42D, brought within the Tribunal’s jurisdiction.

199    I do not accept this submission. The below review of the legislative scheme reveals that Parliament contemplated various forms of review, variation and alteration of the plan, including replacement by way of a change of the participant’s statement of goals and aspirations (s 47) or, where a variation is made when a review is on foot, the request for the review “is taken to be for a review of the reviewable decision as varied”, as s 101 provides. Accordingly, there is specific contemplation under the Act of the review becoming of the decision as varied. Here, there were a number of orders remitting the 23 July 2018 decision and subsequent decisions for reconsideration. By way of example, following the 31 May 2021 orders to remit the 17 June 2020 decision for consideration, that decision was remitted and varied or a new decision was made with effect from 7 June 2021 and a review date of 7 June 2022.

200    Mr Klewer also submitted that the remittal of the impugned decision under s 42D “had no legal effect”, because the period which covered the 2018–2019 plan had passed by the time the first s 42D order was made. If, however, the s 42D orders did have some legal effect, Mr Klewer submitted that it must have been “to leave untouched” the 2018–2019 plan, and to have “some effect on later plans”. I do not accept this submission. Section 42D permits, at any stage in a proceeding for review of a decision, the Tribunal to remit the decision for reconsideration. If the decision is so remitted, the person to whom it is remitted may reconsider the decision and may affirm, vary or set aside the decision and make a new decision in substitution for the decision set aside (s 42D(2)). It is clear that a number of the remittals involved changing the review date in the plan and led to the creation of a new plan which was the subject of a further remittal.

201    Mr Klewer’s counsel submitted that s 42D’s purpose was not to have the effect that the decision that was the subject of the review application would “completely disappear” and be replaced by later decisions. I do not accept this submission. The possible consequences of remittal are clearly stated in s 42D(2) and, if there is variation or the decision is set aside and a new decision is made, then the application is taken to be an application for review of the decision as varied (s 42D(3)(a)) or the new decision (s 42D(4)(a)). It is clear that the effect of the power under s 42D is such that the Tribunal’s function transmogrifies from being one about the former plan to be being about the new plan. For Mr Klewer to contend that this would be “extraordinary” and would go against the entire notion of remittal, which involves remitting for reconsideration a decision which had already been made, flies in the face of the clear power to do so under s 42D and as contemplated under the NDIS Act. Furthermore, for the reasons set out below, I am of the view that the operation and effect of the NDIS Act supports this view. The machinery of s 42D gives effect to the intention of the NDIS Act to operate a forward-looking funding scheme. An effect is that the review is a contemporaneous one.

202    As contended by the NDIA, which I accept, s 33(2)(c) requires an NDIS plan to include “the date by which, or the circumstances in which, the Agency must review the plan”. Given the review is part of a plan, upon remittal (under s 42D) the NDIA had the power to change the review date of the plan. Also upon remittal, s 37(1) of the NDIS Act has the separate effect of automatically creating a new start date for a plan. The approval of a statement of participant supports was remitted under s 42D. The review date is part of the statement of participant supports. Therefore, by virtue of s 42D, Mr Klewer’s application is then taken to be an application for review as varied.

203    Contrary to Mr Klewer’s submission, he is not able to rely on other decisions in which the Tribunal have considered a plan which has expired (such as QZHH and National Disability Insurance Agency [2018] AATA 1465). They are distinguishable given there was no remittal under s 42D. Nor was there a remittal used in the impugned decision which was considered by this Court in McGarrigle.

204    Mr Klewer also submitted that the later plans made by the NDIA were not the subject of any application for review by Mr Klewer, which is the precondition for giving the Tribunal jurisdiction. However, it is my view that the effect of s 42D is such that it allowed, by variation or substitution of a new decision, for the 2021 plan to be a reviewable decision in the way that both Mr Klewer and the NDIA presented their cases to the Tribunal.

Statutory indicators

205    As submitted by Mr Klewer, the time dimension of administrative decisions is divined by an analysis of the statute itself. Some administrative decisions, for example those associated with occupational registration and whether a person is fit and proper, will be decisions where facts post-dating the decision under review are relevant to the Tribunal’s task.

206    Whether a statute requires a review decision to be made with reference to a past point in time or the time of the review depends on the statutory context: see Shi at [46] (per Kirby J), [99] (per Hayne and Heydon JJ) and [145] (per Kiefel J, as her Honour then was); Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; 266 CLR 250 at [14]–[15] (per Kiefel CJ, Keane and Nettle JJ). Two distinct limitations on the review include whether the statute requires that a review decision be confined to material that was before the primary decision-maker or confined its consideration to events that had occurred up to the time of that decision: Shi at [43], citing Commonwealth v Ford (1986) 65 ALR 323 at 328. Mr Klewer appeared to propound that both limitations applied in this case. In both Shi and Ford, the High Court and Federal Court respectively held that the applicable legislation in each case allowed for the review be more broad-ranging and allowed for both a consideration of material beyond what was before the decision-maker and to rely on events after the fact and make the preferable decision as applicable as at the time of the review.

207    Despite how Mr Klewer ran his case before the Tribunal, Mr Klewer submitted before me that here Mr Klewer’s statement of participant supports was for a specific period of time (as it was required to be). As a consequence, “only facts relevant to that period of time, and within that period of time”, were probative of the issue before the Tribunal.

208    Mr Klewer submitted, by operation of ss 32, 33(2)(c), 33(5)(f), 34 and 37, the participant’s plan was not a “platonic, indefinite concept” but time-limited.

209    Section 32(1) requires that the CEO facilitate the preparation of the participant’s plan.

210    Section 33 sets out the matters which must be included in the plan:

33    Matters that must be included in a participant’s plan

(1)    A participant’s plan must include a statement (the participant’s statement of goals and aspirations) prepared by the participant that specifies:

(a)    the goals, objectives and aspirations of the participant; and (b) the environmental and personal context of the participant’s living, including the participant’s:

(i)    living arrangements; and

(ii)     informal community supports and other community supports; and

(iii)     social and economic participation.

(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 review 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.

(3)     The supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise.

(4)     The CEO must endeavour to decide whether or not to approve the statement of participant supports as soon as reasonably practicable, including what is reasonably practicable having regard to section 36 (information and reports).

(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