Federal Court of Australia

Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852

ORDERS

THE COURT ORDERS THAT:

1.    The decision made by the Administrative Appeals Tribunal on 27 August 2021 be set aside.

2.    The matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law.

3.    The respondent pay 60% of the costs of the application such costs to be assessed on a lump sum basis by a registrar if not agreed.

4.    There be liberty to the applicant or the respondent to apply within 10 days to vary the costs order.

5.    The liberty provided by these orders may be exercised by filing a short outline of submissions of no more than three pages together with any necessary affidavit in support. If the liberty is exercised, the opposing party may within 10 days file a short outline of submissions of no more than three pages together with any necessary affidavit in response. Subject to further order, the question whether there should be any variation to the order as to costs shall be determined on the papers.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Australia's National Disability Insurance Scheme or NDIS is provided for by the National Disability Insurance Scheme Act 2013 (Cth). The Act establishes the National Disability Agency and confers a number of statutory responsibilities upon the Chief Executive Officer of the Agency. Amongst other things, it deals with how a person may become a participant in the NDIS. If a person becomes a participant in the NDIS then the CEO of the Agency must facilitate a 'participant's plan'. Various matters must be included in the plan: s 33. They include 'the reasonable and necessary supports (if any) that will be funded under the [NDIS]' as approved by the CEO: s 33(2)(b). In deciding whether to approve those supports the CEO must be satisfied 'as mentioned in section 34': s 33(5)(c).

2    Section 34(1) provides that for the purpose of specifying the reasonable and necessary supports to be included in a participant's plan, the CEO must be satisfied 'of all of the following in relation to the funding … of each 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.

3    So, in order for a support to be funded, the CEO must form an affirmative state of satisfaction as to each of six criteria. As was explained in National Disability Insurance Agency v WRMF [2020] FCAFC 79; (2020) 276 FCR 415 at [201], the criteria are 'more than mandatory considerations' because they are not simply matters which the CEO must consider or to which the CEO must have regard but are respects in which the CEO must be affirmatively satisfied before a support may be funded: The state of 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'.

4    Further, the six criteria are 'straightforward and pragmatic' and invite an approach of that kind on the part of the decision-maker: WRMF at [202].

5    The Act also provides for the making of rules: s 209. Amongst other things, the 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 specified in s 34(1)]': s 34(2). They may also provide for the CEO to specify 'assessment tools', how the Agency and the CEO are to 'engage' with participants and how participants are to 'engage' with the Agency: s 209(2A). Of course, insofar as they concern the state of satisfaction to be formed under s 34(1), the rules must be confined to prescribing steps which, if followed, will result in the formation of the required state of satisfaction and not some other state of satisfaction such as one which is formed on the basis that there are additional matters about which the CEO must be satisfied or which will result in one or more of the criteria being disregarded.

6    Rules have been made under the Act which deal with the assessment and determination of the reasonable and necessary supports that will be funded under the NDIS: National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth), referred to in these reasons as the Rules.

7    The CEO may delegate any or all of his or her powers or functions under the Act to an Agency officer, that is a member of staff of the Agency: s 202. There is also provision whereby decisions of the CEO (made by one staff member) may be reviewed by another staff member (referred to in the Act as a reviewer): s 99 and s 100. Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer: s 103.

The present case

8    Ms Felicity Isherwood is a participant in the NDIS. She lives with her mother in the family's suburban home in South Australia. Ms Isherwood's mother has been her nominee and has assisted in dealings with the Agency concerning her daughter's plan. Ms Isherwood receives care from her mother and from one of her sisters who has also helped with matters relating to the plan.

9    In April 2018, a plan was prepared for Ms Isherwood by an officer of the Agency as delegate of the CEO. It specified the supports that were to be funded under the NDIS. An internal review was sought. The reasons for requesting the review did not relate to the supports to be funded under the NDIS as set out in the plan. However, they did raise a complaint that part of the plan was to be undertaken by the Agency when a self-managed plan was sought. In November 2019, the review was declined on the basis that the plan had been 'changed to self-manage on the 29/03/2019' and that there was no need to change the plan because the process had been commenced for the creation of a new plan.

10    The reference by the reviewer to the process for creation of a new plan was to a plan that had been put in place on 29 March 2019 but which, as at November 2019, was itself the subject of a pending internal review. The review was completed in March 2020 and resulted in only some of the supports that had been proposed for Ms Isherwood being included in the new plan.

11    Ms Isherwood, with her mother's assistance, appealed to the Tribunal in respect of each of the two review decisions. The appeals were heard together. The Tribunal proceeded on the basis that the issue raised by the appeals was whether for the purposes of s 34 of the Act the requested supports not approved by the delegated officer who conducted the review are 'reasonable and necessary'. The case for Ms Isherwood before the Tribunal was conducted by her mother without legal assistance. One of her sisters gave evidence in support of her claim. Evidence was also given by a builder (Mr Gardiner), an occupational therapist (Mr Allen) and a medical general practitioner (Dr Jenkins). The Tribunal affirmed the decisions made by the Agency.

12    The Tribunal's reasoning rested upon its view that there was 'a lack of independent, objective and current evidence from which the Tribunal could be satisfied, at this time, that the claimed supports were reasonable and necessary': at para 214. In its reasons, the Tribunal referred to additional medical reports that it had obtained after the hearing had concluded. The extent to which the contents of those additional medical reports affected the outcome of the decision is the subject of competing contentions in the appeal. However, what is clear is that the Tribunal afforded no opportunity to Ms Isherwood to comment upon or respond in any way to the matters in the additional reports before the Tribunal made its decision.

13    By the Public Trustee of South Australia as her litigation representative the applicant now brings an appeal against the decision of the Tribunal. The appeal is brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). It confers a right to appeal to this Court 'on a question of law' from a decision of the Tribunal. The merits of the case are dealt with by the Tribunal and its fact finding function is not to be usurped: Repatriation Commission v O'Brien (1985) 155 CLR 422; as cited in Osland v Secretary to the Department of Justice [2010] HCA 24; (2010) 241 CLR 320 at [19](fn 43) (French CJ, Gummow and Bell JJ), and see also [73]-[75] (Hayne and Kiefel JJ), [92] (Heydon J agreeing). The Court is required to exercise original, not appellate, jurisdiction and to do so in proceedings which are in the nature of judicial review: Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72 at [15] (Gaudron, Gummow, Hayne and Callinan JJ).

The grounds of appeal

14    By the amended notice of appeal, Ms Isherwood advances six grounds, some with sub-grounds. A further ground was added during oral submissions. The grounds as ultimately presented orally may be summarised as follows:

(1)    The Tribunal failed to afford natural justice by relying upon the additional medical reports in its reasons without affording Ms Isherwood any opportunity to challenge or respond to the aspects of those additional reports that were relied upon by the Tribunal in its reasons (ground 1).

(2)    The Tribunal made an error of law by requiring that there be 'independent, objective and current evidence' to support the formation of the required state of satisfaction as to whether there were reasonable and necessary supports and also by failing to have due regard to the lived experience of Ms Isherwood and her family who were her carers (ground 4).

(3)    The Tribunal made an error of law in failing to inform Ms Isherwood's mother, who had the conduct of the proceedings before the Tribunal, that the evidence was insufficiently particular as to certain matters (ground 4B).

(4)    The Tribunal made an error of law in failing to make its own inquiries as to those matters (ground 4A).

(5)    The Tribunal took into account an irrelevant consideration in concluding that the evidence of Mr Isherwood's sister was not reliable without providing any reasons as to which aspects of her evidence were not reliable and why (ground 2.3).

(6)    The Tribunal took into account an irrelevant consideration by giving significance to views expressed in the additional documents that Ms Isherwood's recent seizures were more likely functional than neurological (ground 2.4).

(7)    The Tribunal failed to take into account relevant considerations by concluding that the opinions of Mr Allen were based on information from family members when significant aspects of his report were based on his own observations and professional expertise (ground 3.2).

(8)    The Tribunal failed to take into account relevant considerations by not considering the evidence of Ms Isherwood's sister as to the currency of the matters the subject of the opinions of Mr Allen and Mr Gardiner (ground 3.3).

(9)    The Tribunal erred in concluding that the only issue it had to determine was whether there were reasonable and necessary supports when there were other issues to determine (ground 5.1).

(10)    The Tribunal erred in concluding that there were no reasonable and necessary supports without considering each of the supports (by dealing with the supports at too high a level of generality as home modifications, vehicle funding claims and support animal claims) (ground 5.2).

15    In these reasons, the enumeration (1) to (10) as listed above is used to refer to the grounds.

Outcome

16    For reasons which follow, ground (1) has been established and the appropriate relief is for the matter to be referred to the Tribunal for determination according to law. In consequence, it is not necessary to deal with the other grounds. Nevertheless, they are addressed (in some instances only briefly) in the reasons which follow and, for the reasons given, they have not been established.

'Reasonable and necessary support'

17    Before dealing with the grounds, it is appropriate to consider the way in which the concept of reasonable and necessary support is deployed in the Act as a whole. It is a concept that is not confined to s 34. An understanding of the meaning of the term is an important contextual aspect that informs the nature of the statutory task that the CEO (by an officer with delegated authority) must undertake in order to give effect to s 34 - and hence the nature of the Tribunal's task on review.

18    The concept of 'reasonable and necessary support' is not defined in the Act. It is deployed in a number of provisions, in particular those which specify the objects of the Act and the guiding principles as to actions under the Act: see WRMF at [147]-[148]. It is a composite phrase of a kind that it is not appropriate to attempt some form of exhaustive definition: at [149]-[150].

19    Significantly, the general principles that are to guide actions under the Act include the following (s 4(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.

20    Other principles recognise that people with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development (s 4(1)) and that people with disability should be supported to participate in and contribute to social and economic life (s 4(2)). Consideration as to what may be a reasonable and necessary support for a particular participant in the NDIS must be informed by a perspective that is guided by these (and other) principles as expressed in s 4 of the Act. The fact that the principles are to guide actions taken under the Act is fundamental to the way the Act operates and must guide the interpretation of its provisions.

21    Further, the Act is not confined to the funding of reasonable and necessary supports. It also concerns the provision of general supports by the Agency to or in relation to people with disability who are not participants in the NDIS: s 13. It also provides a regulatory framework for persons and entities who provide supports and services to people with disability: s 3(2)(c).

22    Importantly, the statement in s 4(11) concerning the characteristics of reasonable and necessary supports is not expressed in terms of supports to be provided under the NDIS. Nor is it confined by the financial sustainability of the NDIS. Rather, its focus is upon what is reasonable and necessary to support a person with disability to pursue their goals, maximize their independence, be included in the community as fully participating citizens and undertake activities that enable them to participate in the community and employment. In a broad sense the qualifying terms 'reasonable and necessary' provide for limits on the extent of such supports (and consequently on that which might be funded), but the concept itself is not concerned with limits on the funding of such supports. Rather, the mechanism for determining the extent to which reasonable and necessary supports will be funded by the NDIS for an individual participant is the formation of an affirmative state of satisfaction by the CEO as to each of the six criteria set out in s 34(1) in the course of preparing a participant's plan (a process which must be facilitated by the CEO).

23    Therefore, whether a reasonable and necessary support is funded depends upon whether it is a reasonable and necessary support in respect of which the CEO (by an officer of the Agency) has reached an affirmative state of satisfaction as to each of the six criteria specified in s 34(1). If the required state of satisfaction is formed, the support must be funded by the NDIS. This characteristic of the way in which the Act expresses the obligation to provide a reasonable and necessary support to a participant in the NDIS led Mortimer and Abraham JJ to express the following view in National Disability Insurance Agency v KKTB, by her litigation representative CVY22 [2022] FCAFC 181 at [128]:

Section 34 prescribes matters about which the decision-maker must be satisfied before a support can be included in a statement of supports under s 33. Satisfaction as to those matters (where relevant and applicable) may be conditions on the power to approve a support or supports, and enter a support in a statement of supports under s 33.

24    It must also follow that there will be instances of supports that will be reasonable and necessary supports for the purposes of that concept as used in the Act which will nevertheless not be funded. They will not be funded because the CEO has not reached the required state of satisfaction as to one of more of the matters in s 34(1). An outcome of that kind may arise because there is insufficient material before the CEO to enable the required state of satisfaction as to each of the six criteria to be reached (noting that the CEO must facilitate the preparation of a participant's plan). However, it will not be confined to instances of insufficiency in evidence. There may be supports which come within the concept of reasonable and necessary supports but in respect of which the CEO is unable to be satisfied that they should be funded. This is likely to arise particularly from the criteria that require the CEO to be satisfied that account has been taken of supports which it is reasonable to expect families, carers and the community to provide (s 34(1)(e)) and to be satisfied that the support is not more appropriately funded through other support systems (s 34(1)(f)). Those aspects give effect to the principle that there is a need to ensure the financial sustainability of the NDIS. They are consistent with the insurance-based approach of the NDIS by which the supports to be provided by the NDIS must be met from the public funds determined on an actuarial basis that are set aside to meet the liability. As with any insurance, it will have limits as to the extent of coverage. The insured risk must be confined in a way that enables it to be covered by the available pool of funds (in the case of the NDIS out of public funds set aside for that purpose). Such an outcome may also arise because the CEO's delegate (or the Tribunal in its shoes) is not satisfied as to one of the other criteria on the basis of a qualitative assessment the outcome of which lies within the field in which reasonable minds may differ as to whether the criteria have been satisfied.

25    However, what is significant when it comes to the interpretation of s 36 in the context of the Act as a whole is to bear in mind that the six criteria are concerned with the extent to which it may be appropriate for a reasonable and necessary support to be funded from the NDIS. They are not concerned with defining the scope of the concept 'reasonable and necessary support'.

26    The concept of reasonable and necessary support is a foundational aspect to the legislative scheme. It is a phrase that is qualitative and invites a contextual consideration of the particular circumstances of the person living with disability in respect of whom the phrase is being considered. In consequence, a decision-maker considering whether a particular support for a particular person is a reasonable and necessary support has a degree of decisional freedom as to whether a support is one which might be funded by including it in a participant's plan: KKTB at [128] (Mortimer and Abraham JJ). In evaluating whether a particular support for a particular participant would be a reasonable and necessary support (to which the six criteria in s 34 should be applied in order to determine whether it will be included as a funded support in the participant's plan), the CEO must not adopt a prescriptive approach: KKTB at [133].

27    All of which is to say that the CEO must not approach the task of evaluating whether a support should be included in a participant's plan as a funded support on the basis that there is some unduly restricted universe of supports in respect of which the formation of the required state of satisfaction is to be undertaken. Put another way, it would be contrary to the Act for the CEO to begin with the language in s 34(1) which sets out the six criteria. To do so risks closing the scope of the understanding of 'support' in a manner that is inconsistent with the statutory scheme. Rather, the formation of the required state of satisfaction must be informed by a proper understanding of the concept of reasonable and necessary support. Then the CEO must consider whether the six criteria are satisfied as to each such support.

28    If the CEO is not satisfied as to any one of the six criteria then the support cannot be included in the participant's plan. It follows, at least conceptually, that the CEO need not consider the remaining criteria where the CEO is not satisfied as to a particular criterion.

29    Therefore, although it is convenient shorthand to refer to the statutory task as being whether a support is 'reasonable and necessary', that terminology is deficient in exposing the precise nature of the deliberative task that is required to be undertaken. Rather, the task of the CEO is to consider as to each support that might be included in the participant's plan: (a) whether it is a reasonable and necessary support; and (b) whether the CEO is affirmatively satisfied as to each of the six criteria in s 34(1) in respect of the support.

30    Finally, as has been observed, the evaluative assessments to be undertaken by the CEO in forming a view as to whether or not each of the six criteria are satisfied are highly dependent upon a view to be formed as to the circumstances of the participant. Those circumstances include an understanding of the nature of the participant's disability and the effect upon the functional capacity of the participant. So, if there is insufficient material before the CEO to enable an assessment of such matters then the CEO will not be able to reach the required affirmative state of satisfaction as to the six criteria. Although the criteria are not confined to such matters and it would be an error to approach them on that basis, it is not possible to undertake the assessments required by the six criteria without knowing the nature of the disability and its consequences for the functional capacity of the participant. However, once those matters are known, it is necessary for the CEO, amongst other things, to understand the participants own goals, objectives and aspirations and to consider the way in which a particular support may facilitate social and economic participation by the participant. It would be an error to undertake the task required by s 34 on the basis that the 'reasonable and necessary support' is only about functional capacity.

31    Undue focus upon matters of functional capacity is contrary to the Act. If the concept of a 'support' as referred to in s 34(1) is viewed in that way then it will result in too narrow a conception of the field of reasonable and necessary supports that the CEO may evaluate in forming the required state of satisfaction as to each of the six criteria for inclusion as funded supports in the participant's plan.

32    In addition, as has been noted, the CEO has an obligation under s 32 of the Act to facilitate the preparation of the participant's plan. The Agency is empowered to provide support and assistant to prospective participants and participants in the NDIS 'in relation to doing things or meeting obligations under, or for the purposes of, this Act': s 6. The statutory note to that provision refers to assisting a participant in clarifying his or her goals, objectives or aspirations for the purposes of a participant's plan. Another example would be providing support or assistance where there are difficulties or complexities in providing information of a kind that the CEO needs to form the states of satisfaction required by s 34(1).

33    It appears that the formation of a state of satisfaction as required by s 34(1) is compellable, subject only to the participant meeting any enforceable requirements established by rules made in accordance with the Act as what must be done by the participant in respect of the plan. If that were not so, the CEO would have a discretion to withhold from a participant the funding of supports. Therefore, for each participant, the CEO must facilitate a plan by forming a view as to whether each proposed support falls within the concept of a reasonable and necessary support as contemplated by the Act and then make a decision as to whether the CEO is satisfied as to each of the six criteria in respect of each support that does fall within that conception (or, in negative terms, whether the CEO is not satisfied as to any one of the six criteria).

34    Reference has already been made to the potential for the Rules to include provisions concerning the material that is to be brought to bear in forming the required states of satisfaction for the purposes of s 34(1). In the present case, the only provision in the Rules which was said to have significance was r 3.2 which concerns the evidence that the CEO is to consider in deciding whether a support will be effective and beneficial for a participant (terminology that reflects the language of s 34(1)(d) of the Act which specifies the fourth criterion as to which the CEO must be satisfied). Rule 3.2 is expressed in the following terms:

In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:

(a)    published and refereed literature and any consensus of expert opinion;

(b)    the lived experience of the participant or their carers; or

(c)    anything the Agency has learnt through delivery of the NDIS.

The Tribunal's reasons

35    Having regard to the nature of the review grounds it is necessary to consider the whole of the Tribunal's reasons and expose both the manner in which the Tribunal identified the issue for determination and the manner in which the Tribunal reached the conclusion that the decisions by the reviewers should be affirmed.

36    The Tribunal began by explaining the fact that the appeal concerned the two internal review decisions. It then considered what had been approved by the two plans. As to the first plan (para 9), amongst other things, the Tribunal noted that an assessment and recommendation from suitably qualified professionals plus appropriate quotations for construction was required for approval of modifications of the bathroom, kitchen and outdoor areas. As to the second plan (para 15), amongst other things, the Tribunal noted that it provided funding for assessments to be undertaken by qualified professionals for the provision of home modifications to bathroom/kitchen/inside of house/outside of house.

37    It may be observed that as described by the Tribunal neither plan includes supports which involve alterations to the family home. They only approve assessments. Presumably, once the assessments have been obtained there will be a need to consider whether the six criteria are met in respect of each aspect of any work at the home that may be recommended. It does appear that at some stage state funding was received for work on the bathroom of the family home (para 87). It is unclear whether an assessment of the kind contemplated by the plans was undertaken because the reasons refer to partially completed work on the bathroom at the home and also to a period of six years since that work was interrupted by a dispute with the builder.

38    The Tribunal began its reasoning as to reasonable and necessary supports by quoting s 34(1) of the Act. It referred to the Rules. It referred to an operational guideline that had been published by the CEO concerning the provision of home modifications and assistance animals. It then stated its view of the issue for determination as being 'whether for the purposes of s 34 of the NDIA Act the requested supports not approved by the delegate are "reasonable and necessary"' (para 29).

39    There are potential difficulties with the above formulation because it fails to place the issue in the context of an explicit statement of the nature of the concept of reasonable and necessary support (as explained above). It risks failing to bring a proper understanding of the nature of the supports that the legislation contemplates when forming the required state of satisfaction. Whether that has occurred in the present case will depend upon the reasoning pathway of the Tribunal in not accepting any of the proposed further supports as being reasonable and necessary.

40    The Tribunal then outlined matters that were in issue. It described that the requested supports as (a) 'home modification and repairs'; (b) 'Seizure Response Dog funding'; and (c) 'a new motor vehicle and modifications'.

41    Next, the Tribunal summarised the position of the Agency. The summary began by describing the submission for the Agency as being whether the Tribunal could be satisfied that the supports that are sought are reasonable and necessary in accordance with s 34 of the Act (para 39). This again failed to articulate what is encompassed by that concept in the Act and focussed upon the terms of s 34.

42    The Tribunal then said (para 41):

The respondent submitted that, having regard to the evidence, the Tribunal could not, at this time, be satisfied that the supports claimed by the applicant were reasonable and necessary. There was a need for independent, objective and current evidence which was absent in this matter.

43    The Tribunal then referred to a submission by the Agency that there was 'an absence of probative evidence directed to each of the criteria' (being, it would seem, the criteria in s 34(1) of the Act) (para 42).

44    Therefore, the position of the Agency as recorded by the Tribunal was that evidence that was required in order to form a state of satisfaction as to each of the six criteria was not before the Tribunal.

45    As to the home modifications, the Tribunal referred to a submission by the Agency that it was difficult to distinguish between those modification expenses that were part of wear and tear as opposed to those that were needed to support the applicant (para 43) and that it was the Agency's position that the claimed supports needed to be something more than mere wear and tear (para 44). The difficulties with that position are addressed below in the course of dealing with ground (2).

46    Reference was made by the Tribunal to offers by the Agency to fund functional assessments and a home assessment report and a submission by the Agency that without those assessments the Agency was not in a position to identify as 'reasonable and necessary' any of the supports claimed (para 44). There was further reference to the lack of 'independent assessment'.

47    The Tribunal concluded its summary of the Agency's position by referring to a submission that there was no link between a functional capacity assessment or home assessment and the builder's report 'from which the Tribunal can be satisfied that any claimed support was reasonable and necessary' (para 45).

48    It appears from this part of the reasons that the position of the Agency as understood by the Tribunal was that there was nothing before the Tribunal from which it could reach any conclusion as to the functional capacity of Ms Isherwood and that without some form of independent assessment of the kind identified, the Tribunal could not make a decision as to what was a reasonable and necessary support.

49    The Tribunal then set out matters from a written opening prepared by Ms Isherwood's mother. Amongst other things, the Tribunal referred to a submission that Ms Isherwood is scared of strangers and will not survive being in an independent living environment and '[w]hat underpinned her application was a desire to ensure that [she] can continue to live in her current home' (para 47).

50    The Tribunal then set out the evidence of Ms Isherwood's sister (paras 52-92). The evidence included descriptions of the extent to which Ms Isherwood has mobility difficulties, that she is not comfortable around new people and would not talk to the Tribunal, her day to day interactions, her past accomplishments and struggles including incidents at school when she was said to have suffered tonic-clonic seizures, the condition of the bathroom and laundry and toilet in the family home, the fact that the family were using a camping toilet and Ms Isherwood had been showering in the laundry for a number of years, the state of disrepair in the kitchen which makes it unsafe for the applicant to cook and difficulties with ambulance officers accessing the house. The evidence explained how Ms Isherwood's dog alerts family members of a pending seizure. It also explained difficulties with the current family vehicle.

51    The Tribunal then set out the evidence of Mr Gardiner who was said to have provided a 'renovation report' in relation to the home after inspecting the property. Reference was made to various matters the subject of Mr Gardiner's evidence. They included a description of incomplete building work in the main bathroom (which was not able to be used), the state of disrepair in the kitchen, the state of disrepair of the laundry, problems with the back steps, issues with drainpipes and gutters, the need for wiring to an outside shed and issues with the front door and entrance. Reference was also made to evidence from Mr Gardiner that Ms Isherwood's mother wanted a swimming pool which could be achieved subject to planning approval.

52    The Tribunal then said (para 98):

Mr Gardiner said that a lot of the work was general wear and tear inherent in an old property. The kitchen was in bad condition as was the laundry. There had been repairs to the guttering, but the guttering was still not working properly. A lot of the items were old, worn out and in need of replacing.

53    As to the basis for Mr Gardiner's report the Tribunal's reasons record (para 104):

He said that he was asked to provide an opinion of what could and should be done to the property to make it as user friendly as possible, so he gave his opinion on everything he was asked to look at.

54    Earlier in the reasons, there was reference to the report referring to an estimated total repair cost of $293,982 (para 37(ii)). Mr Gardiner gave evidence that the costs would have increased by approximately 20% since preparation of the report (para 102).

55    The Tribunal then set out a summary of the evidence of Mr Allen. It was said to describe a series of recommended home modifications 'based on a set of goals and wishes provided to him … as representing what would be good for [Ms Isherwood] in terms of her goals and safety' (para 106).

56    The reasons referred to Mr Allen's report as describing Ms Isherwood's medical background, by referring to a medical summary which 'was not before the Tribunal' (para 109). As will emerge, the medical summary was from one of the additional medical reports obtained by the Tribunal after the hearing. Although the Tribunal referred to the relevant report in its reasons (see below), it did not consider whether the matters in the report - which by then were before the Tribunal - did provide a basis for Mr Allen's report. Instead, as to the evidence of Mr Allen, the Tribunal reasoned (at para 110) that in the absence of a functional assessment of Ms Isherwood and in the absence of any medical report informing Mr Allen of her functioning, his report could only be accepted as an expression of the opinion of Ms Isherwood's mother as to those matters and 'to some degree, an expression of [her] wishes'. It was then said that: 'Accordingly, only limited weight can be given to this report' because it was 'underpinned' by the opinions and observations of family members. The Tribunal then concluded:

Mr Allen's report does not assist the Tribunal in deciding whether the home modifications listed are reasonable and necessary in accordance with s 34 of the Act.

57    In context, the expression of that conclusion reflected reasoning which treated evidence of family members based upon their own observations of Ms Isherwood as evidence that could not be used to reach the conclusion as to the issue as formulated by the Tribunal. It was not formulated in the terms of the legislation because it focussed upon s 34 as the legislative expression of what may constitute reasonable and necessary support, rather than upon an understanding informed by the use of that expression in the Act as a whole, particularly the manner in which it is articulated in the principles set out in s 4 of the Act. It also treated the evidence of Mr Allen as being unsupported by the contents of the medical report referred to by him, even though the Tribunal obtained that report and referred to its contents in its reasons.

58    The Tribunal then stated its conclusion that the evidence of Dr Jenkins was wholly unsatisfactory (para 111). Later, the Tribunal expressed reasons for that conclusion. None of the grounds seek to impugn that conclusion on the basis of alleged error of law.

59    The Tribunal then dealt with the circumstances in which it obtained the additional reports that give rise to the complaint the subject of ground (1). It stated: 'Following the hearing, and given the absence of reliable medical evidence before the Tribunal, the Tribunal requested the parties produce [three identified] medical reports' (para 112). This is indeed what the Tribunal had done and the basis upon which it did so. It sought the reports on the basis of its view that they were relevant.

60    In its reasons, the Tribunal then proceeded to deal with the additional reports that it had received (paras 113-123). It quoted from the report by Dr Myers and Prof Scheffer which it found was the report to which Mr Allen had referred (paras 115-119). The Tribunal referred to the report as describing 'prolonged events, including leg extension and general stiffening, as the most frequent type of event for [Ms Isherwood]' and as recommending a plan for further investigation.

61    The reasons also included the following concerning a report of a Dr Norton, a neurologist (para 121):

After prolonged monitoring over several days, it was felt that the episodes which were causing concern were in fact functional and behavioural and were not true epileptic seizures in the accepted sense.

62    The above aspect of Dr Norton's report was given significance later in the Tribunal's reasons. It will be necessary to consider that aspect. At this point it is sufficient to observe that Ms Isherwood's primary disabilities were not confined to epilepsy. They also included Dravet syndrome, intellectual disabilities and autism spectrum disorder (para 32). However, it does appear from the Tribunal's reasons that in certain respects it was the risk of epileptic seizure that was relied upon as the basis for a number of the supports which were sought to be included in the participant plan for Ms Isherwood.

63    The Tribunal then set out its findings as to the evidence of Dr Jenkins. They included the following (para 141):

In answer to a question from the respondent's counsel, Dr Jenkins told the Tribunal that the applicant's sister prepared the majority of the report dated 19 October 2020. When asked what part of the report she did prepare, Dr Jenkins answered: 'I asked for advice from the family because I don't live with them, and I certainly checked everything'. When asked whether, apart from turning her eye over it and applying her stamp, she had prepared the report, Dr Jenkins answered 'No'.

(original emphasis)

64    As has been noted the Tribunal found that the evidence of Dr Jenkins was not reliable (paras 149, 179-188).

65    The Tribunal's reasons then continued under the heading 'Consideration'. They began in the following way (para 144):

The fundamental issues in this hearing were the nature and extent of the applicant's functional capacity as a consequence of her agreed medical conditions, and whether the claimed supports were reasonable and necessary supports to be funded by the Scheme.

66    Reference was made to the position of the Agency in its opening submissions that 'there was an absence of independent objective and current evidence upon which the Tribunal could be satisfied that the claimed supports were reasonable and necessary as required by s 34(1)(a)-(f) of the Act' (para 147). Reference was also made to the Agency's position that it was necessary to distinguish between home modifications that were 'reasonable and necessary supports' (on the one hand) or 'general wear and tear expenses that were reasonably expected to be paid, for example, by the family' (on the other hand) (para 147).

67    The Tribunal addressed the issue of a functional assessment. It referred to reasons that had been given for not undertaking a further assessment. They included reliance upon the report of Mr Allen. As to Mr Allen, the Tribunal reasoned (para 150):

However, the occupational therapy report was obtained at the request of the [Agency] for the purpose of a functional capacity assessment. The applicant's representatives chose Mr Wayne Allen. The applicant would not cooperate with the occupational therapist who was unable to observe any aspect of the applicant's functional capacity. Hence, the report including the applicant's functional capacity was based on information provided by [Ms Isherwood's mother] and her family and was not founded on any medical evidence about the applicant nor any independent observation of the applicant or independent corroborative evidence about the applicant and her functional capacity.

68    This 'foundation' was found to 'go to the probative value of its content' (para 151). Again, this reasoning failed to have regard to the fact that the Tribunal obtained the report that contained the medical summary referred to in Mr Allen's report. It treated the report of Mr Allen as if its only foundation as to the functional capacity of Ms Isherwood was the information from the family.

69    The Tribunal referred to a refusal by Ms Isherwood's mother to accept a proposal by the Agency, after the evidence had been received, for an assessment to be obtained (paras 152-153).

70    There are a number of references in the reasons to the proposed building work being 'renovations' or 'repairs' or work that was required as part of 'general wear and tear'. It was reasoned that there was 'no evidence' that the building work requested was any more than a renovation (paras 155-156).

71    The Tribunal acknowledged the possibility that 'there may be aspects of the renovations that need to be considered specific to [Ms Isherwood's] needs that are reasonable and necessary'. It gave examples. However, it immediately observed that there was no 'independent evidence before the Tribunal about those renovations relevant to [Ms Isherwood's] specific needs that are reasonable and necessary supports in consequence of her particular disability' (para 158).

72    The Tribunal went through the matters identified by Mr Gardiner in his report and repeatedly made the observation that there was an absence of independent evidence linking the disabilities and functional capacity of Ms Isherwood to what was described as renovations. In the course of this part of its reasons, the Tribunal referred to the absence of independent evidence about the nature and extent of Ms Isherwood's use of and need for a wheelchair, particularly in and around the home (para 165). This is an example of the Tribunal's concern as to the conclusions it could reach without independent evidence of functional capacity.

73    The Tribunal then dealt with the request to fund the purchase of a new motor vehicle as to which the Tribunal also found that there was an absence of independent evidence addressing the applicant's functional capacity (para 171). The same was said in respect of the funding sought for an assistance dog (para 172).

74    Then, the Tribunal returned to the evidence of Dr Norton. It quoted again the conclusion that the episodes that were causing concern were 'functional and behavioural' and were not true epileptic seizures. Further parts of the report of Dr Norton were quoted to the effect that the episodes of which the family complain 'are not epilepsy'. The Tribunal then quoted a passage from the report to the effect that Ms Isherwood's mother 'is somewhat confused about the concept of stress-related events in the diagnosis of epilepsy and still uses that term in her discussion' (para 173).

75    This evidence was used, together with other reasoning, to reach a conclusion that there was insufficient evidence for providing funding for an assistance dog as a reasonable and necessary support (paras 174-178).

76    Finally, under the heading 'Conclusion', the Tribunal began by stating that to the extent that the Tribunal had received evidence about the functional capacity of Ms Isherwood, that came from the family (in the form of evidence from Ms Isherwood's sister or in what was communicated to Mr Allen, Mr Gardiner and Dr Jenkins). Then it said: 'That asserted functional capacity has not been the subject of independent and current assessment by an appropriately qualified practitioner' (para 189). The focus upon both independence and currency may be noted (in that regard, see also paras 147, 149, 172, 198-199). It is also significant that the requirement for independence and currency was being applied to an assessment by an appropriately qualified medical practitioner.

77    Then the Tribunal reasoned (para 190):

Further, to the extent that [Ms Isherwood's mother and sister] continue to refer to the [Ms Isherwood] suffering seizures including tonic-clonic seizures, the medical evidence before the Tribunal indicated that is not the case and, arguably, there are functional and behavioural issues which impact upon the applicant's behaviour.

The above passage appears to be a further reference to the statement in the report by Dr Norton.

78    Then the Tribunal reasoned that it needed evidence 'other than from family members to be reasonably satisfied about the applicant's functional capacity and reasonable and necessary supports' (para 191). It may be noted that this statement was directed to the issue of functional capacity.

79    The Tribunal then referred to the refusal to accept the invitation for a home assessment to occur and dealt with the explanation that had been given for that refusal (paras 192-193).

80    Then, after observing that the fact that Ms Isherwood has not had the benefit of a functioning bathroom for six years 'is a serious concern', the Tribunal again referred to the absence of any independent reliable evidence about the applicant's functional capacity and the requested supports in dispute' (para 196). Again the statement about independent reliable evidence is directed towards material concerning the functional capacity of Ms Isherwood. It is not expressed in terms of the need for independent evidence as to all matters that must be considered in forming the states of satisfaction required by s 34(1).

81    The Tribunal found that the 'list of home renovations' was 'generally in the nature of wear and tear home repairs or replacements' (para 197).

82    Then (at para 198), the Tribunal again gave significance to the evidence of Dr Norton in the following manner (after again describing the evidence as to Ms Isherwood's functional capacity coming from the family):

[The assessment by Ms Isherwood's mother of Ms Isherwood's] various conditions and their impact upon her, albeit genuinely held, do not necessarily accord with the available medical opinion as indicated by Dr Norton who has reported that there are functional and behavioural aspects to the applicant's presentation.

83    This was followed immediately by the following (para 199):

Hence, the Tribunal agrees with the respondent's submission that there is a lack of independent, objective and current evidence upon which the Tribunal could be satisfied that the claimed supports were reasonable and necessary as required by s34(1)(a) - (f) of the Act.

84    As has been observed, the passages from the report of Dr Norton that were quoted by the Tribunal in its reasons concerned only the diagnosis of epilepsy. They did not address whether the other diagnoses of Ms Isherwood may account for those 'functional and behavioural aspects'.

85    The requests for an assistance dog and a motor vehicle were again addressed on the basis of a lack of evidence (paras 200-206). There was a repetition of earlier reasons that the opinions of Ms Isherwood's mother and sister were genuinely held but the Tribunal 'is not satisfied that this is reliable evidence about [Ms Isherwood's] medical condition, giving rise to her presentation and what are reasonable and necessary supports' (para 211).

86    The final two paras are as follows (paras 213-214):

After the hearing, we asked for copies of those other medical reports to which we have referred. Unfortunately, they did not assist the Tribunal other than to give a general overview of her condition and in part a diagnosis different to the view of the applicant's family about her medical condition over the last few years.

The evidence before the Tribunal was unsatisfactory. We agree with the respondent's submission that there was a lack of independent, objective and current evidence from which the Tribunal could be satisfied, at this time, that the claimed supports were reasonable and necessary.

87    In the passage quoted above, the statement that the additional reports 'did not assist the Tribunal' is qualified by what follows and appropriately so. As has been explained, the report of Dr Norton was relied upon by the Tribunal.

88    It may be seen that there were two consistent themes in the reasoning. First, the absence of independent, objective and current material concerning the functional capacity of Ms Isherwood. Second, the characterisation of the home alterations as renovations or repairs for fair wear and tear.

89    Beyond identifying that the internal review for the second plan 'confirmed that self-management of funding had been approved' for the supports that were approved by the reviewer (para 16), the Tribunal's reasons did not address the issue of self-management. This was a consequence of the formulation of the issue as being whether for the purposes of s 34 of the Act the requested supports that were not approved were reasonable and necessary.

Ground (1): The additional medical reports and alleged failure to afford natural justice

90    The Tribunal must observe procedural fairness. It must ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present that party's case and 'in particular, to inspect any document to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents': s 39(1) of the Administrative Appeals Tribunal Act. This obligation is in addition to the obligation implied by the common law that the statutory power conferred by s 34(1) to form the required state of satisfaction is conditioned by the requirement that it be exercised in accordance with the requirements of procedural fairness: WRMF at [61]-[64].

91    As has been explained, in the present case the Tribunal requested the additional medical reports after the hearing had concluded. It did so on the basis that it considered that the content of the reports may be relevant. It dealt with the reports in its reasons. Had the contents of the reports been of no significance to its reasoning then it is difficult to see why the reports were referred to by the Tribunal in that way.

92    In the case of the report of Dr Norton, aspects of his report formed part of the basis upon which the Tribunal reached conclusions that were adverse to Ms Isherwood. As has been explained, those conclusions were to the effect that relevant episodes with which Ms Isherwood presented were not seizures from her epilepsy but were functional and behavioural. This was a significant part of the basis upon which the Tribunal declined to accept that support in the form of an assistance dog was appropriate. It was also part of the reasoning by which the Tribunal supported its view that there was a need for independent, objective evidence (that is evidence from people who were not family members).

93    Ground (1) was advanced on the basis that it had four consequences, namely (a) Ms Isherwood was not given an opportunity to call the authors of the reports to give evidence; (b) the reports were relied upon by the Tribunal in circumstances where none of the reports were written with regard to the issues before the Tribunal, in particular Ms Isherwood's functional capacity; (c) Ms Isherwood was not put on notice of any adverse inference the Tribunal was considering arising from the reports; and (d) Ms Isherwood was not given an opportunity to make submissions on the use of the reports or the weight to be given to them.

94    It is enough to establish the merits of ground (1) that the reports were relied upon adversely to Ms Isherwood in circumstances where no opportunity was afforded to Ms Isherwood to make submissions as to the significance or otherwise of those documents. As the terms of ground (1) indicate, matters which might have been submitted included that the reports were written without regard to the issues before the Tribunal and without seeking to describe Ms Isherwood's functional capacity (as affected by all relevant aspects of her disability).

95    The position of the Agency was that there was nothing adverse to Ms Isherwood in the additional reports and therefore there was nothing for the Tribunal to put for comment. For reasons that have been given that submission must be rejected. It was also submitted that there was no right to an oral hearing. This further submission proceeded upon the false premise that in order to succeed upon ground (1), Ms Isherwood needed to demonstrate a right to a further hearing. If Ms Isherwood had been afforded an opportunity to make submissions, one of the submissions that may have been advanced on her behalf was a submission that as a matter of procedural fairness, there should be a further hearing at which questions could be asked of the authors of the reports if their contents were to be relied upon. The opportunity to make that submission was not afforded. Ms Isherwood does not need to demonstrate that the outcome would (or should) have been a further hearing.

96    The Agency's position as to materiality was somewhat obscure. It accepted, having regard to the decision in Nathanson v Minister for Home Affairs [2022] HCA 26, that Ms Isherwood did not have to file an affidavit was to what she would have done differently. However, the Agency maintained that Ms Isherwood had not filed an affidavit to show that the Tribunal's actions in calling for the additional reports denied her the opportunity of presenting her case.

97    In a case where the error has been a failure to conform with the requirements of procedural fairness, an applicant for review for jurisdictional error need only demonstrate that, as a matter of reasonable conjecture, a different decision could have been made had there been compliance with procedural fairness. The threshold is not onerous. In the present case, the application is for statutory review that is confined to a question of law. In such cases, it must be shown that the error could have affected the outcome: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [4], [131]-[132], [211].

98    Therefore, it is necessary to consider what could have been the decision if Ms Isherwood had been afforded an opportunity to make submissions.

99    The Tribunal may have been persuaded by a submission that there was no significance in the additional reports, particularly the report of Dr Norton, when it came to reaching a conclusion about the supports for Ms Isherwood having regard to all aspects of her disability. As a result, the Tribunal may not have used the report of Dr Norton as a basis for calling into question the understanding of Ms Isherwood's mother of the functional consequences of Ms Isherwood's disabilities. In consequence, it may have been less emphatic in its conclusion concerning the lack of relevance of the reports of Mr Allen and Mr Gardiner to the extent that they were based upon information that had been provided to them by Ms Isherwood's mother. Alternatively, the Tribunal may have been persuaded by a submission that it was appropriate for there to be a further hearing at which questions may be asked of Dr Norton. There are many possibilities as to what may have occurred if there had been such a hearing including Dr Norton explaining limits upon the conclusions that may be drawn from the statements in his report when it came to understanding the consequences of all aspects of Ms Isherwood's disabilities.

100    In addition, for reasons which follow, there are other respects in which the opportunity to provide submissions, as a matter of reasonable conjecture, may have led to a different outcome. They include the relevance of the contents of the report of Dr Myers and Prof Scheffer as a foundation for the report of Mr Allen and submissions as to the contents of those reports for the evidence of Dr Jenkins.

101    Significantly, if Ms Isherwood had been given an opportunity to make submissions then it would have been open to her to submit that the medical summary in the report of Mr Allen should be accepted because it was based upon the report of Dr Myers and Prof Scheffer and on that basis it was not the case that there was an absence of evidence as to Ms Isherwood's functional capacity. A submission may also have been advanced to the effect that there should be a further hearing at which Dr Myers or Prof Scheffer may have given evidence about functional capacity. In short, a submission could have been made to the effect that the reports assisted Ms Isherwood's case or that the contents of the reports was a sufficient basis for the Tribunal to be persuaded that it should receive evidence from one of more of the authors of the reports as to the likely current extent of Ms Isherwood's functional capacity by reason of her known medical history.

102    For all those reasons, ground (1) has been established.

Ground (2): The requirement for independent, objective and current evidence

103    As has been explained, the Act seeks to provide support for the aspirations of people living with disability to be independent and to participate socially and economically in society and to exercise choice and control over their lives and any treatment or care they may require. Therefore, a determination as to whether a support is a reasonable and necessary support for the purposes of the Act requires an understanding of the particular circumstances of the individual from the perspective of that individual. Key to understanding the scope of the supports that may be reasonable and necessary supports for a particular person with a particular disability will be the lived experience of the person. In those instances where a participant in the NDIS is unable (or perhaps unwilling due to attributes of their disability) to provide evidence as to their circumstances and aspirations, the evidence of family members and those who care for the participant on a day-to-day basis will assume particular significance.

104    There may be instances where the Tribunal forms the view that the evidence of family members and carers is not credible in the sense that there are reasons to conclude that it is not truthful or accurate. However, as explained below, that is not what occurred in the present case.

105    At a number of points the Tribunal referred to the reliability of the evidence. It referred to the absence of 'reliable medical evidence' (para 112) and the absence of any 'independent reliable evidence about [Ms Isherwood's] functional capacity' (para 196). It stated that the opinions of Ms Isherwood's mother and sister were accepted as being genuinely held but then reasoned that it was not satisfied 'that this is reliable evidence about the applicant's medical condition, giving rise to her presentation and what are reasonable and necessary supports in accordance with s 34 of the Act' (para 211). It concluded that the evidence of Mr Allen did not assist the Tribunal because the medical report to which it referred was not before the Tribunal (even though it received the report after the hearing) and found that the report was otherwise based upon the opinion of Ms Isherwood's mother as to her 'functional capacity needs' (paras 109-110).

106    The Tribunal used different terminology in rejecting the evidence of Dr Jenkins, the general practitioner whose evidence was relied upon to support the position of Ms Isherwood. As to Dr Jenkins, the Tribunal concluded that it did not accept Dr Jenkins 'as a reliable expert witness upon whose opinion the Tribunal can rely' (para 188). This was a finding as to credibility of the opinion's expressed by Dr Jenkins in her report. The basis for that finding was the following:

(1)    Dr Jenkins was unable to give evidence of any consultation she had with Ms Isherwood over all the time that she had been her general practitioner (para 180);

(2)    her report contained no factual observations made by Dr Jenkins of Ms Isherwood in day to day life and she had not observed her at her home (para 180);

(3)    Dr Jenkins did not make any medical diagnosis of Ms Isherwood and relied on the diagnosis of specialist medical practitioners (para 180);

(4)    her report simply signed off on observations and descriptions of what Ms Isherwood required such that the report expressed the opinions and observations of Ms Isherwood's mother and sister and not those of Dr Jenkins, an approach which was characterised as 'wholly unsatisfactory' (paras 181-182); and

(5)    Dr Jenkins must have known that insofar as the report that she signed referred to seizures and tonic-clonic or myoclonic seizures the report from Dr Norton previously received by her 'clearly indicated that [Ms Isherwood] had not suffered from such a seizure for a number of years and that the episodes observed were in fact arguably functional and behavioural and were not true epileptic seizures' (para 184).

107    The final aspect of that reasoning (in (5) above) exposes the significance of the failure to afford Ms Isherwood an opportunity to at least make submissions about the report of Dr Norton received after the hearing which is the subject of ground (1). It formed part of the basis upon which the Tribunal concluded that the evidence of Dr Jenkins was not evidence upon which the Tribunal can rely. It is an aspect that further supports the materiality of the procedural error by the Tribunal as to the additional medical reports.

108    However, for the purposes of ground (2), it may be observed that the approach of the Tribunal to the 'reliability' of the evidence of the family members was not to find that it was evidence that was not genuine (that is a truthful expression of opinions held by them) but rather that it was not reliable in the sense that they lacked the requisite expertise and objectivity in relation to the issue of functional capacity. As explained below, this reflects the Tribunal's focus upon the lack of independent reliable evidence (that is, independent medical evidence) concerning the nature and extent of the functional consequences for Ms Isherwood of her disability.

109    The Tribunal referred repeatedly to the need for independent, objective and current evidence. It was a formulation that might suggest that in order to reach a conclusion that a support was a reasonable and necessary support it was necessary to have regard only to 'independent, objective and current evidence'. It was an approach which, if in fact adopted by the Tribunal, would treat the evidence of family members and those who had day-to-day experience with the participant as having no probative value at all for the purposes of forming a state of satisfaction as to whether the supports in issue were supports in respect of which the Tribunal (standing in the shoes of the CEO) was satisfied as to each of the six criteria in s 34(1).

110    Adopting that approach for all aspects of the statutory task would involve an error of law on the part of the Tribunal for reasons that have been given in addressing the statutory concept of reasonable and necessary support and the operation of s 34(1). It would involve error of law because it would disregard the evidence of the family for all purposes. The formation of the required state of satisfaction as to each of the six criteria in respect of each support said to be a reasonable and necessary support did not require the Tribunal to act only on evidence that could be characterised as independent, objective and current evidence.

111    However, regard to the whole of the Tribunal's reasons shows that the Tribunal did not reason in that way. The Tribunal's approach to the evidence must be understood in the context of its focus upon functional capacity. Significantly, its reasoning under the heading 'Conclusion' begins with the issue of functional capacity and then with the characterisation of the proposed alterations at the family home as renovations, repairs for wear and tear or replacements. The insufficiency of the evidence concerning the functional capacity of Ms Isherwood is also an important part of the reasoning as to why the Tribunal did not accept that an assistance dog or a new modified motor vehicle were 'reasonable and necessary supports'.

112    In short, the Tribunal was not satisfied as to the nature and extent of the effects of Ms Isherwood's disabilities on her functional capacity. It reasoned that in circumstances where it was unable to make any finding about functional capacity it could not conclude that the supports were reasonable and necessary. There was no attempt to impugn the underlying logic of that reasoning pathway on the basis that it involved some form of error of law, and understandably so because it was fundamental to forming the required states of satisfaction that the Tribunal understood and could reach conclusions about the functional consequences of Ms Isherwood's disability. In short, without material upon which the Tribunal could base conclusions as to the functional capacity of Ms Isherwood, the Tribunal was unable to form the required states of satisfaction. For reasons that have been given, those states of satisfaction required the Tribunal to consider much more than supports to assist with the physical consequences of functional capacity. However, it was necessary for the Tribunal to reach a state of satisfaction as to matters of functional capacity. If it lacked the material to do so it could not go on and reach the required state of satisfaction as to the six criteria each of which depended to some degree upon such matters.

113    The Tribunal's reasoning as to the insufficiency of the evidence as to functional capacity involved the following steps:

(1)    Dr Jenkins report was not a reliable and credible statement of opinion;

(2)    the report of Mr Allen was advanced on the basis of a medical summary that was not before the Tribunal (noting the error in this approach because, ultimately, the summary was produced after the hearing as part of the additional medical reports);

(3)    the evidence of family members was not of assistance because it was not reliable in the sense that they did not have the requisite expertise;

(4)    the report from Dr Norton showed that Ms Isherwood's mother had an incorrect understanding of Ms Isherwood's disability, particularly as to the extent to which she was experiencing or at risk of seizures (being an aspect that was advanced as a reason for many of the supports);

(5)    there was no current medical report as to the functional capacity of Ms Isherwood;

(6)    there had been no recent functional assessment undertaken of Ms Isherwood;

(7)    Ms Isherwood's mother refused to accept a proposal by which the Tribunal would adjourn the proceedings to enable an independent assessment to be undertaken and her explanation for doing so was questioned; and

(8)    Ms Isherwood's mother considered that she had to fight for everything that her daughter needed and that was reflected in the manner of her interaction with the Agency.

114    In this Court, submissions were advanced for Ms Isherwood to the effect that no purpose would be served by undertaking any form of assessment in which Ms Isherwood was required to participate. The submissions were advanced as part of the challenge to the Tribunal's approach of requiring independent evidence. In effect, it was submitted that the Tribunal was in error in not relying upon the evidence of Ms Isherwood's sister and the material in the reports of Mr Allen and Mr Gardiner that was sourced from Ms Isherwood's mother in circumstances where Ms Isherwood herself would not participate in any assessment. However, the submissions to that effect did no more than challenge the Tribunal's approach to the evidence. In that regard, the Tribunal reasoned as follows (para 193):

[The] explanation for the refusal to permit anyone to undertake the home assessment was in part, that [Ms Isherwood] does not engage with strangers, distrusts others and would be upset by others attending the home. Yet the applicant attends TAFE classes regularly, albeit with family members. She is studying to become an actress. She has previously engaged in horse riding, albeit not since about 2016. One of the reasons provided for the need for a swimming pool is so that the applicant can have her friends come over. Hence, she has demonstrated some capacity to engage with or be in the presence of others.

115    In short, for reasons which it gave which are not sought to be impugned by any of the grounds, the Tribunal did not accept the submission that Ms Isherwood would not participate in an assessment and, for that reason, any such assessment would be pointless. It was a matter for the Tribunal to reach a conclusion as to that area of factual dispute.

116    As to the manner in which the Tribunal approached the reliance by Mr Allen on the medical summary, that was not a reason, of itself, to find that there was legal error in the Tribunal's insistence upon independent evidence. It may have been wrong in its factual conclusion that the medical summary was not before the Tribunal, but that was not the basis for the challenge raised by ground (2).

117    Considered in context, the Tribunal's emphasis upon the need for independent, objective and current evidence reflected its conclusion as to the evidence that was needed in the circumstances of the case concerning functional capacity. It was not a view that s 34 of the Act required the Tribunal to be satisfied by evidence other than from family members (a view which would have been in error).

118    It follows that, in the context of the reasoning pathway adopted by the Tribunal, the references to the need for independent, objective and current evidence reflected its view of the state of the material before the Tribunal on the issue of functional capacity only. It was an issue that was fundamental and unless the Tribunal concluded that there was material upon which it could reach a state of satisfaction as to the functional capacity of Ms Isherwood it could not be satisfied as to each of the six criteria. For example, it was not possible to determine whether the support represented value for money or was likely to be effective and beneficial having regard to current good practice unless the Tribunal had material upon which it could form a view as to functional capacity.

119    For Ms Isherwood it was submitted that the Tribunal's approach failed to conform to the Rules because it failed to have regard to the lived experience of Ms Isherwood or her carers contrary to r 3.2 as to the functional consequences of her disability. Rule 3.2 concerns only the criterion in s 34(1)(d) which requires the CEO (or the Tribunal in the shoes of the delegate of the CEO) to be satisfied that the support will be, or is likely to be, effective and beneficial for a participant'. The reasoning of the Tribunal did not reach the point of addressing whether the supports were effective and beneficial because the Tribunal was unable to reach a conclusion as to the consequences of Ms Isherwood's disability for her functional capacity.

120    For those reasons, ground (2) has not been established.

121    Finally, having regard to the significance given by the Tribunal to the characterisation of the proposed alterations to the family home as being 'renovations' that were generally in the nature of repairs for wear and tear, it is appropriate to observe that the fact that particular alterations might have the consequence that they will renovate or improve an aspect of a home does not, of itself, mean that the works are not a reasonable and necessary support. It may be an aspect that has significance in a particular case for the purposes of criterion (e) (concerned with whether the funding takes account of what it is reasonable to expect the family to provide) or criterion (f) (concerned with whether support is appropriately funded through other systems of service delivery or support). However, there is no aspect of s 34(1) that stands against provision of a support that is otherwise within the six criteria on the basis of a view that it will amount to a renovation or repair.

122    Alterations which serve no purpose as a support for a participant may be characterised as renovations or repairs but that would be because they are not a reasonable and necessary support. However, it is an error to approach proposed supports that take the form of alterations to a home on the basis that if they might be characterised as resulting in some form of improvement or renovation to the home that they cannot be reasonable and necessary supports.

Ground (3): Tribunal's failure to inform Ms Isherwood's mother that the evidence was insufficiently particular

123    Ground (3) emerged during oral submissions. It concerns the nature and extent of the obligations of the Tribunal when dealing with a litigant in person. The submission advanced was to the effect that the Tribunal should have informed Ms Isherwood's mother that, as a matter of procedure, her evidence was insufficiently particular as to each of the following four matters:

(1)    the need for a bathroom with a shower and toilet suitable for Ms Isherwood's needs;

(2)    the issue of access to the house for Ms Isherwood's wheelchair and ambulance officers and a kitchen suitable for her disability;

(3)    the need for a suitable motor vehicle and a place for her mobility scooter; and

(4)    the need for training and replacement of an assistance dog.

124    Undoubtedly, the fact that Ms Isherwood's mother was not a lawyer and therefore was not familiar with what may be required as part of the Tribunal's procedure meant that the Tribunal had to explain the relevant aspects of the Tribunal's processes and procedures to Ms Isherwood's mother to the extent that such an explanation was needed to ensure that the proceedings were conducted fairly: SZVCP v Minister for Immigration and Border Protection [2016] FCAFC 24; (2016) 238 FCR 15 at [36]-[38] (Kenny, Robertson and Griffiths JJ). The obligation to provide an explanation may extend to informing a self-represented litigant, at least in broad terms, what must be proven: Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335 at [106] (Murphy and Rangiah JJ). The authorities as to the nature and content of the obligation to explain processes and procedures were reviewed by Jagot J in Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299; (2011) 213 FCR 345 at [21]-[26].

125    The submissions in support of ground (3) were to the effect that the Tribunal, in the present case, should have exposed the need for further evidence as to each of the above matters. However, it was not the lack of particularity as to those matters that was the issue for the Tribunal. Rather, as has been explained, the assessment made by the Tribunal was there was a lack of material on which it could form a conclusion as to the particular consequences for the functional capacity of Ms Isherwood due to her disability and, in consequence, a lack of material upon which it could reach the required state of satisfaction to conclude that each of the claimed supports were reasonable and necessary supports that must be funded.

126    Importantly, as to that aspect, the Tribunal did draw the attention of Ms Isherwood's mother to the need for a proper foundation for reaching conclusions concerning Ms Isherwood's functional capacity. Regard to the transcript of the hearing reveals that the Tribunal was focussed upon the lack of evidence as to functional capacity. Further, as has been mentioned, the focus of the submissions presented for the Agency was that there was a lack of independent, objective and current evidence as to the matters the subject of s 34(1). There was also reference by the Agency to the fact that it had offered in the past to fund both functional assessments and a home assessment report and that had been met with resistance. The absence of that information was advanced by the Agency as the substantive reason why the supports could not be accepted as reasonable and necessary supports.

127    Further, the Tribunal observed in the course of the hearing that there was no link between a functional capacity assessment and the builder's report (being the report of Mr Gardiner). It was described by counsel for the Agency as a fundamental issue. A proposal was made by counsel for the Agency for that to occur, perhaps with the assistance of Dr Jenkins. Counsel made a submission encouraging the Tribunal as an independent voice to try and find a way to encourage an assessment.

128    The Tribunal then said to Ms Isherwood's mother:

When the tribunal comes to consider these types of matters, the tribunal needs evidence from somebody, particularly going to the functional capacity of a person, what he or she can and cannot do.

129    The Tribunal then gave examples of what was needed and explained that it was greatly assisted by a functional capacity report. The Tribunal expressed the view that the reports of Ms Allen and Dr Jenkins did not contain what the Tribunal required. For example, it said:

The medical report doesn't give us functional capacity. The medical report has, within its contents, what appears to be information from the internet about her [that is Ms Isherwood's] condition and that's all right, but really doesn't tell us enough so we can come to a decision about what [Ms Isherwood] can and cannot do and I know we've heard from [her sister] and we've got submissions from you. But we need some professional evidence that gives us that and who can then speak to why certain house modifications are reasonable and necessary supports.

130    The Tribunal then informed Ms Isherwood's mother squarely that whatever views might be held by the family, it needed the additional functional capacity assessment to be done so the Tribunal could be satisfied as to the six requirements in s 34(1) emphasising that it was all of them about which it needed to be satisfied.

131    The need for a functional assessment was further explained and emphasised. The possibility for an adjournment to arrange the assessment report was explained. Ms Isherwood's mother was asked whether she would like to think about it, to discuss it with her daughter or counsel for the Agency or carry on. When Ms Isherwood's mother indicated that she would prefer to carry on because of difficulties with her daughter being involved in an assessment, the Tribunal persisted and asked questions about medical practitioners who might be able to assist including those who had been referred to in the material before the Tribunal (some of which were the additional medical reports ultimately requested by the Tribunal after the conclusion of the hearing).

132    Ms Isherwood's mother said that she wanted to persist.

133    Therefore, this is not a case where there was a failure by the Tribunal to explain the respects in which the evidence lacked the particularity that the Tribunal needed, namely the connection between the evidence of the claimed supports and the functional capacity of Ms Isherwood.

134    However, the reference to the additional medical reports in the context of the issue of functional capacity further exposes the importance of an opportunity to be afforded to make submissions as to those documents when received and the possibility of identifying respects in which those reports might assist the Tribunal in reaching conclusions as to functional capacity or concluding that it would be appropriate to seek further evidence from those practitioners on the issue of functional capacity.

135    For the Agency the further submission was advanced that it was apparent from the terms of the decision by the reviewer that there was an issue as to whether there was enough information to form the required states of satisfaction. Reliance was placed upon what was said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [35]. It is not necessary to determine whether this is a further reason why there was no procedural unfairness when it came to the obligations which arose because Ms Isherwood's mother appeared before the Tribunal without legal assistance.

Ground (4): Tribunal's failure to make its own inquiries

136    It was submitted that the matters the subject of ground (3) (referred to at [123] above) were also matters in respect of which the Tribunal should make its own inquiry. It was submitted that at the hearing the Senior Member of the Tribunal placed himself at the forefront of information gathering by asking various questions of Ms Isherwood's sister when she gave evidence. Reliance was placed upon the reasoning in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) that 'a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances supply a sufficient link to the outcome to constitute a failure to review'.

137    In the present case, as has been explained, the problem for Mr Isherwood's case was not about the whether there was sufficient evidence as to the need for particular matters. The issue was more fundamental. The Tribunal's reasoning concerned the failure to put before the Tribunal material upon which the Tribunal could be satisfied as to the functional capacity of Ms Isherwood attributable to her disability. For reasons that it gave, it was of the view that there needed to be independent, objective and current evidence as to those matters. In context, this formulation reflected an assessment by the Tribunal that there needed to be evidence from someone with the requisite expertise who had undertaken an assessment or could express opinions concerning functional capacity.

138    The circumstances of this case are not within the type of case that was described in SZIAI as one which may give rise to a basis for review.

139    Further, as has been explained, the evidence before the Court included the transcript of the proceedings before the Tribunal in which the senior member went to considerable lengths to encourage Ms Isherwood's mother to allow arrangements to be made for a functional assessment. It was proposed that the assessment was to be undertaken at the cost of the Agency and could involve Dr Jenkins as someone with whom Ms Isherwood had a long-standing relationship as her general practitioner. It was not the case that the Tribunal simply stood back and did nothing when it came to possible further inquiry.

140    Ground (4) has not been established.

Ground (5): Alleged irrelevant consideration concerning reliability of Ms Isherwood's sister

141    The contention advanced for Ms Isherwood as to ground (5) was that the Tribunal took into account an irrelevant consideration in concluding that the evidence of Mr Isherwood's sister was not reliable because she was a family member without providing any reasons as to which aspects of her evidence were not reliable and why.

142    The submissions advanced to support the contention were to the effect that the rejection by the Tribunal of the evidence of Ms Isherwood's sister on the basis that it was not independent, objective or current was to have regard to an irrelevant consideration, namely the lack of independence of a family member. It is a strange conception of error. It appears to be a restatement of the matters advanced to support ground (2), namely that the Tribunal was wrong to require all evidence to be independent, objective and current. For reasons that have been given, the Tribunal did not adopt such an approach. Rather, it reasoned that as to the functional capacity of Ms Isherwood there was a need for evidence of that kind in the particular circumstances. Further, for reasons that have been given the Tribunal gave reasons for its approach to the evidence of Ms Isherwood's sister and those reasons did not include a finding that her evidence was not reliable in the sense that it lacked credibility. Rather, the Tribunal reasoned that the opinion of Ms Isherwood's sister as to the functional capacity of Ms Isherwood was not one which the Tribunal could rely upon in the circumstances of the case (where there was no current assessment supported by a qualified medical practitioner).

143    It follows that ground (5) has not been established.

Ground (6): Alleged irrelevant consideration concerning views in the additional medical documents that Ms Isherwood's seizures were more likely functional than neurological

144    The contention advanced as to ground (6) was to the effect that the Tribunal took into account an irrelevant consideration by giving significance to views expressed in the additional medical documents (particularly the report of Dr Norton) that Ms Isherwood's recent seizures were more likely functional than neurological when there was no evidence that the distinction had any effect upon her care needs.

145    The submissions referred to the Tribunal's reasons concerning the significance of evidence which was said to refer to the non-epileptic basis for the seizures, particularly the reference in the report of Dr Norton to the effect that Ms Isherwood's 'major issues' were arguably 'functional and behavioural' and not the consequence of seizures. It was said that this diverted the Tribunal from determining whether the supports in issue were reasonable and necessary irrespective of the basis for the manifestations in the behaviour of Ms Isherwood. Implicit in this complaint is a view that the behaviour is an outcome of Ms Isherwood's disability. Further, it ignores the extent to which the supports were supported on the basis that Ms Isherwood was suffering from seizures.

146    In effect, the submissions supporting ground (6) complained of the consequence of the fact that Ms Isherwood was not given an opportunity to make submissions concerning the course of the Tribunal proceedings and the significance of the contents of the additional medical reports before the Tribunal proceeded to rely upon those reports in its reasons.

147    However, it could not be said to be irrelevant, in the relevant sense, for the Tribunal to have regard to the additional medical reports (noting the lack of procedural fairness in that course for reasons given in relation to ground (1)). It follows that ground (6) has not been established.

Ground (7): Failure to take into account relevant considerations by not considering the evidence of Mr Allen

148    The contention advanced as to ground (7) was that the Tribunal failed to take into account relevant considerations by concluding that the opinions of Mr Allen were based on information from family members when significant aspects of his report were based on his own observations and professional expertise.

149    The written submissions as to this ground began by referring to the reasoning of the Tribunal (at para 210) that the evidence of Mr Allen and Mr Gardiner as to the functional capacity of Ms Isherwood was based on information provided by Ms Isherwood's mother and family and 'not independent observation'. It then referred to the fact that the report of Mr Allen referred to a medical summary in a report which was not before the Tribunal (para 109) and in consequence his report could only be given limited weight (para 110). It was then submitted that the report upon which Mr Allen relied was actually produced as one of the additional medical reports (described as the Scheffer/Myer report) and therefore that criticism must fall away. On that basis it was submitted that the Allen report was relevant to the decision because it was based upon the views expressed in the Scheffer/Myer report.

150    The above reasoning calls in aid the additional medical reports. To that extent, it appears to be another example of what might have been submitted if Ms Isherwood had been afforded an opportunity to make submissions as to the significance of the medical reports.

151    The submission appears to be to the effect that the failure to have regard to the evidence of Mr Allen meant that a relevant consideration (namely his opinion) was not considered. A relevant consideration is a matter to which a decision-maker must have regard in order to validly exercise the power. For the Tribunal to make findings as to whether the evidence as to a particular issue is reliable is not to fail to have regard to the issue. Put another way, implicit in the Tribunal reaching a view about whether the material supported the making of a particular finding is a recognition that the topic to which the finding relates is a relevant consideration.

152    As has been explained in dealing with ground (2), the Tribunal did not need to form a state of satisfaction as to each of the six criteria. It was sufficient if it formed a view which meant that it could not be satisfied in the requisite sense. It formed the view that it could not be satisfied as to the functional capacity of Ms Isherwood that was associated with her disability. For reasons that have been given, that was a sufficient basis upon which to conclude that the Tribunal was not satisfied. It did not have to go through each of the criteria in circumstances where it lacked the material that it needed to be satisfied as to a foundational matter.

153    Oral submissions were also advanced to the effect that the report of Mr Allen was also based upon his own observations during his visit to the home.

154    Therefore, in substance the contention as to ground (7) is that there was error by the Tribunal in failing to find that Mr Allen's evidence was based on the opinions of the medical practitioners in the Scheffer/Myer report and his own observations - to which he then applied his expertise as an occupational therapist. However, an error of that kind is not properly characterised as a failure to take into account a relevant consideration. It is a complaint about the reasoning process undertaken by the Tribunal in actually addressing a relevant consideration, namely whether there is material upon which the Tribunal can form a state of satisfaction as to Ms Isherwood's functional capacity. If ground (1) had not been upheld with the consequence that these matters will need to be addressed by the Tribunal in any event it may have been necessary to consider whether the way in which ground (7) was articulated amounted to an error of a kind that was reviewable under s 44 of the Administrative Appeal Tribunal Act and, if so, whether Ms Isherwood should be allowed to advance a ground of that kind. However, in circumstances where ground (1) is to be upheld, no purpose would be served by seeking to resolve that question. It is sufficient to say that ground (7) as articulated in the amended notice of appeal has not been established.

Ground (8): Failure to take into account relevant considerations by not considering the evidence of Ms Isherwood's sister

155    The contention advanced as to ground (8) is that the Tribunal failed to take into account relevant considerations by not considering the evidence of Ms Isherwood's sister as to the currency of the matters the subject of the opinions of Mr Allen and Mr Gardiner. The Tribunal did not ignore or overlook the evidence of Ms Isherwood's sister. Rather, as has been explained, it did not accept that evidence as being probative of the issue as to the functional capacity of Ms Isherwood in circumstances where, on the Tribunal's findings (infected by the procedural unfairness the subject of ground (1)) it had concluded that Ms Isherwood's sister's views as to functional capacity were affected by incorrect views as to Ms Isherwood's disability.

156    Further, like ground (7) this ground misunderstands the nature of a relevant consideration.

157    Therefore, ground (8) has not been established.

Ground (9): Alleged error in the Tribunal only considering the issue of reasonable and necessary supports

158    The contention advanced as to ground (9) was that the Tribunal erred in concluding that the only issue it had to determine was whether there were reasonable and necessary supports when there were other issues to determine. With respect, it is difficult to understand this ground. The written submissions say that the Tribunal failed to address the challenge to the Agency's refusal to allow Ms Isherwood to self-manage funding in respect of all of the supports. There is no dispute that the reviewers allowed self-management of the supports that they approved. The Tribunal affirmed the decisions of the reviewers. No issue arose as to whether there should be self-management of any further supports because the Tribunal did not accept that there were any other reasonable and necessary supports that should be included in the participant's plan. It is possible that such an issue may arise when the matters goes back before the Tribunal but only if there is a decision which accepts that there are supports that should be added to those included in the plan approved by the reviewer. With respect, ground (9) is misconceived and should not be upheld.

Ground (10): Alleged error in the Tribunal not considering each claimed support

159    The contention advanced as to ground (10) is to the effect that the Tribunal erred in concluding that there were no reasonable and necessary supports without considering each of the supports (by dealing whether the supports at too high a level of generality as home modifications, vehicle funding claims and support animal claims). For reasons that have been given, there was no error in the Tribunal basing its decision as to all supports on the basis that there was insufficient material for it to be able to form the required state of satisfaction as to the functional capacity of Ms Isherwood. It did not need to go through each support.

160    It may be accepted that in a case where there was not a reason that related to all supports then it would be an error of law to reason in that manner. However, that was not the present case. Ground (10) has not been established.

Relief

161    As ground (1) has been upheld it is appropriate to set aside the Tribunal's decision and remit the matter for determination according to law. It will be for the Tribunal to consider the appropriate procedure to adopt in circumstances where the additional medical reports are now before the Tribunal. It may be that the appropriate course is for the Tribunal to convene a further hearing to deal with the matters raised by the additional reports, including the appropriate procedure to adopt having regard to the matters contained within the reports.

162    It may be that those who were involved in the preparation of the additional medical reports may be able to provide an opinion as to the likely course of Ms Isherwood's functional capacity by reason of her disabilities and that it would be appropriate to afford an opportunity for a report from one or more of those practitioners to be prepared for that purpose. It may be that an opportunity should be afforded to Ms Isherwood to ask questions of the authors of the reports. It may be that Mr Allen is able to update his report based upon an updated medical summary. As to these matters, it may be relevant (as explained above) that the CEO of the Agency is required to facilitate the preparation of the participant's plan. These are matters for the Tribunal to consider.

163    The amended notice of appeal seeks an order that the matter be remitted to the Tribunal differently constituted. No submissions were directed to whether an order in those terms should be made. For reasons that I have given, the only adverse finding as to credibility has been in respect of the contents of the report of Dr Jenkins. As has been observed, there was no attempt to impugn that finding in the appeal. Therefore, on remitter it would not be necessary for the Tribunal to revisit that finding.

164    As has been explained, the Tribunal has formed views about an insufficiency in the evidence of functional capacity. If further evidence is received then the Tribunal will be dealing with new material rather than simply revisiting affirmative findings that it has already made. No adverse finding has been made as to the credibility of the evidence of other witnesses.

165    In the above circumstances, in my view the appropriate course is simply to allow the appeal and to remit the matter and to leave it to the President of the Tribunal to make such directions as may be considered appropriate as to the future hearing of the matter: see the consideration of the issues that arise in such cases in Comcare v Broadhurst [2011] FCAFC 39; (2011) 192 FCR 497 at [89]-[95] (Tracey and Flick JJ).

166    As to costs, I would be inclined to order the Agency to bear 60% of the costs of the appeal. Ms Isherwood has been successful, but only on one ground (noting that it was necessary to understand the whole of the Tribunal's reasoning to address that ground). It is appropriate for there to be a reduction to reflect the extent to which the Agency has been successful in answering the other grounds. I will make an order in those terms on the basis that it reflects a provisional view and I will reserve liberty to the parties to apply to vary the order as to costs.

Associate:

Dated:    28 July 2023