Fear v National Disability Insurance Agency [2015] AATA 706 provides a further AAT consideration of what may constitute reasonable and necessary supports and what should be funded under the NDIS rather than the health system.

The applicant had suffered a brain injury and received various supports under the scheme. The present dispute concerned only the funding of a pulse oximeter, a bedside oral suctioning machine and a portable oral suctioning machine. There was no dispute as to need for the equipment. ([3] – [4]).

The Tribunal considered the relevant section of the Act (at [10]), the Rules and the Operational Guidelines. At [46] it was noted that the Rules draw a distinction between supports enabling a participant to undertake activities of daily living and those better described as clinical treatment of health conditions.

At [50] it was noted that some central terms are not defined and that it can be difficult to distinguish disability, functional impairment and health.

The Tribunal concluded that:

  • The pulse oximeter was more closely related to health needs and so was not most appropriately funded by the NDIS;
  • While the suctioning equipment allowed the applicant to be cared for at home, that did not change its essential nature and health related purpose. It was not most appropriately funded by the NDIS.

In closing at [82] the Tribunal commented:

Mr and Mrs Fear say there is an element of unreality in attempting to separate aspects of their son’s care into those that are the responsibility of the NDIS from those that are the responsibility of the health system.  We accept that is so, particularly where a participant’s needs are as complex as their son’s.  There is no question that his need for this equipment is directly attributable to his acquired brain injury.  We accept that, without them, he would have to be hospitalised.  To that extent, they enable him to maximise his independence and remain at home with his family.  However, for the reasons we have given we find that the pulse oximeter and the oral suctioning equipment are more appropriately funded by the health system than by the NDIS and we affirm the decision under review.

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