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Tough to swallow: the recent decision of Burchell v National Disability Insurance Agency

A recent NDIS decision from the Administrative Appeals Tribunal (AAT) has got the disability and legal community buzzing. The disability community are excited and relieved at the new possibility of practical and needed supports being included in their NDIS Plans. The legal community are (or should be) psyched by the addition to what is a growing database on the interpretation of the NDIS Act.

Before I get into the details, a couple of disclaimers that this blog is not:

  • Legal advice, if you want legal advice or would like to pursue an NDIS appeal, please contact me.

  • A substitute for reading the case (law students, I am looking at you!). For the full details, you can read the decision here.

  • Advice on what should go in your NDIS Plan, Equality Lawyers doesn’t provide that sort of advice at all (though we can refer you to some excellent support coordinators who do!). It is also good to note that one court case does not all Plans make! NDIS Plans are built on people’s circumstances and goals. If this case raises issues that you want to explore, contact the NDIA, your support coordinator or advocate.

  • Oh, and a style point - throughout the text, I will put [at number]. This references paragraphs in the decision.

Ok, let’s get into it:

Here’s what happened:

In early June 2019, the AAT delivered a crucial decision regarding the NDIS funding of thickened fluids and food supplements for a man with dysphagia. The decision is important for people who need supports funded that may have previously been considered to be ‘more appropriately funded’ by health services.

Who brought the case to court and what was going on:

Colin Burchell is a 34-year-old man who lives with four other people with disabilities in a home called “the House With No Steps”, in New South Wales, Australia. Mr Burchell has a diagnosis of multiple disabilities, including cerebral palsy, which causes dysphagia. As a result of his disability, Mr Burchell cannot swallow properly.

To receive nutrition and hydration, Mr Burchell uses thickened fluids to swallow safely. If thickened fluids are not available to him, Mr Burchell can suffer many consequences and risks. Thickened fluids can either be packaged or manually prepared. The alternative to thickened fluids, thin fluids, are not suitable for Mr Burchell and the Tribunal describes “[s]wallowing thin fluids would be distressing and give the sensation of drowning as fluid move[s] into the lungs, which can also be a very painful experience. Safe swallowing enhances his confidence in eating and drinking, allowing him to maintain social interaction, independence, mobility, self-care and self-management to the extent which he is able in his circumstances” [at 8].

Mr Burchell’s dietician had prepared two eating plans, one for packaged thickened fluids and, at the request of the NDIA, the other for cheaper alternatives, manually prepared thickened fluids. The NDIA rejected both eating plans and so Mr Burchell, sought review of the eating plan allowing for packaged thickened fluids and nutritional supplements [at 5].

While the case was getting to the Tribunal, Mr Burchell was left using manually prepared thickened fluids. During that time between October 2018 and February 2019, he dropped in weight to 52.2kg from 54-58kg [at 9, 4].

What the Tribunal had to decide:

The key question the Tribunal answered was whether funding thickened fluids and nutritional supplements is reasonable and necessary under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) [at 18]. In considering this issue, it boiled down to whether the NDIS or another service should fund the support.

What the Tribunal said:

To determine if the supports were reasonable and necessary, His Honour Deputy President B W Rayment OAM QC had to consider all parts of section 34(1) of the NDIS Act.

His Honour had no real issues in satisfying the following parts of section 34(1), on Mr Burchell’s facts:

(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;

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

There is a moment of pause to consider whether ‘the support represents value for money in that the costs of the supports are reasonable, relative to both the benefits achieved and the cost of alternative support’ (s 34(1)(c), NDIS Act). At this point, it is considered “whether the cheaper form of thickened fluids and nutritional supplements should be allowed, rather than the more expensive regime” [at 22]. The cheaper alternative was to provide the applicant with ‘manually thickened fluids and nutritional supplements. On these types of fluids, the applicant had experienced weight loss, which causes him “... to lose mobility, and to become morose and withdrawn.” [at 22] There were also practical issues with the use of manually thickened fluids: carers make errors resulting in defective thickening and packaged fluids are needed when the applicant is out and about. The cost difference between the manually thickened fluids and packaged fluids is $40 per day [at 22]. His Honour found that the packaged fluids did represent value for money, choosing not to call further evidence to consider whether an alternative and comparable support would achieve the same outcome at a substantially lower cost (as per Rule 3.1(a)).

At this point, His Honour has considered all requirements of section 34(1), except (f) and this is where it gets real. For supports to be reasonable and necessary, section 34(f) of the NDIS Act requires the CEO (or Tribunal when it is an appeal) to be satisfied:

(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.

Previously, decisions of the Tribunal have found “that if the support is health related, even if the health authorities do not fund the support, the support is not appropriately funded by the NDIS” [at 28]. These decisions have been made using ‘extrinsic material’ (documents outside of the NDIS Act, like the Productivity Commission reports).

Departing from those past decisions, His Honour in Burchell took the ordinary meaning of the word ‘offered’ in section 34(1)(f) to mean ‘actual service providers’, not a reference to bodies which should exist, rather than those who do exist’ [at 35]. Similarly, His Honour does not interpret the words ‘more appropriately’ to require consideration of ‘what supports should be provided by generic service providers, making a determination they should provide such a service even if they do not.’ [at 36]

The long-held belief that health-related supports which are not funded by health authorities could not be provided for by the NDIS, even though it is a reasonable and necessary support is pretty well blown apart by this decision. His Honour said in no uncertain terms:

“In short, for a conclusion to be reached that the NDIS will not fund a health-related support which the health authorities do not fund, even if it is otherwise a reasonable and necessary support, it seems to me that the Act or rules should say so” [at 42]

When interpreting section 34(1), the Tribunal considers two NDIS documents:

  • The NDIS (Supports for Participants) Rules

  • The Planning Operational Guideline

Under the NDIS Rules, Schedule 1, Rules 7.4 and 7.5 address Health (excluding mental health). Rule 7.4 concerns support related to a person’s ongoing functional impairment to enable the person to undertake activities of daily living. Whereas Rule 7.5 focuses more on clinical or pharmaceutical supports or those which are a universal entitlement. In light of the facts, His Honour found that packaged thickened fluids and nutritional supplements were consistent with Rule 7.4 [at 45].

When looking at the Planning Operational Guideline, His Honour found that “thickened fluids or nutritional supplements are not properly described as “preventative health” in that they are foods and beverages designed to enable persons with dysphagia to swallow drinks and foods safely” [at 50]. The consideration of the Guideline in this decision, threw up an interesting note to policymakers: it is perhaps best not to express views about the construction of the NDIS Act or refer to cases (like Fear) because it has meant in this case, the Tribunal could not have proper regard to those parts of the Guideline [at 50]. A further note on the use of extrinsic material was that regard to the Council of Australian Governments “Principles to Determine the Responsibilities of the NDIS and Other Service Systems” was not appropriate because the document was published after the Act was in force [at 52].

Having considered section 34(1) of the NDIS Act, the Rules and Operational Guideline, the Tribunal set aside the decision not to fund the eating plan for packaged thickened fluids and nutritional supplements. The Tribunal directed that the support of packaged thickened fluids and nutritional supplements are a reasonable and necessary support.

What does it mean?

For people with disabilities, this is a landmark case for the interpretation of health supports that are not funded by health authorities but are reasonable and necessary under the NDIS Act. It is also an excellent example of how important it is for people accessing the NDIS to pursue appeals. These cases improve the life of the participant, but also other participants who may need similar supports.

For lawyers and disability rights thinkers, there is so much in this case in terms of interpretation of the NDIS Act but also the use of extrinsic material when doing so. The NDIS legislative framework is a legal web of material that can be called upon to interpret key parts of the NDIS Act, like “reasonable and necessary supports”. These cases create clearer pathways through that web.


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