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AAT approve SDA: Second bedroom for single resident

AAT has made a landmark ruling on SDA funding for a First Nations man. Todd has the details.

By Todd Winther

Updated 15 Apr 20243 Mar 2022

Specialist Disability Accommodation (SDA) has gone through a period of significant change, particularly as to testing a participant’s eligibility. More participants are going through an already rigorous process, only for the Agency to add further scrutiny. I often remark that if I had to go through the SDA process now instead of two years ago, my approval would be questioned instead of approved without further comment. This greater scrutiny on the SDA process is indicative of the government’s increased focus on Scheme sustainability.

Targeting SDA may seem like an easy solution to curb escalating Scheme costs, but things aren’t as simple as they may appear. Initially, SDA was slated to cost $700 million annually. However, it is now only $231 million after nearly six years, for only 60% of the estimated number of eligible participants. Given these numbers, tightening SDA eligibility does not appear to address the escalating costs of the Scheme in its totality.

It is no wonder, then, that the Administrative Appeals Tribunal (AAT) has seen a dramatic increase in the number of SDA eligibility cases in recent months. Even though AAT judgements do not set legal precedents, a recent finding has laid the foundation for similar challenges to the Agency’s policy on SDA approvals.

Case Background

The applicant, AK, is an Indigenous Australian and a member of the Stolen Generation. He applied to live independently in a High Physical Support SDA dwelling with two bedrooms so that his children could spend time with him at his home. However, when AK received his initial plan, the decision was to award him SDA under the very different design category of Fully Accessible.

The difference between being approved for High Physical Support and Fully Accessible SDA is profound. Generally speaking, Fully Accessible dwellings are recommended for participants with physical impairments who require an accessible property. In contrast, High Physical Support dwellings involve equipment within the house, most commonly a ceiling hoist and automated technology, so that another person can assist the participant to complete the physical activities of daily living. The decision to approve Fully Accessible rather than High Physical Support SDA denied AK access to crucial pieces of assistive technology. In addition, the cost difference between what AK initially asked for in his plan and the amount approved was $83,000 per year. This figure suggests that the Agency seemed to be concerned with the increase in upfront costs rather than the long-term economic benefit – so much for Scheme sustainability.

Further to that decision, the NDIA approved AK sharing a two-bedroom dwelling with another participant, the opposite of what AK requested. This decision runs counter to one of the Scheme’s most important founding principles. SDA intended to move away from the concept of group homes, where people shared a house simply because they shared similar support needs. Yet the NDIA’s funding decision effectively tried to force AK into a group living situation.

Before the Hearing

The day before the AAT hearing began, the Agency made two last-minute concessions to AK:

  • The Agency approved his wish to live alone.
  • The Agency conceded that AK had been approved for the wrong SDA category and approved a High Physical Support dwelling with one bedroom.

There was only one remaining point of contention for the AAT to consider: AK’s need for a second bedroom.

The Hearing

AK successfully argued that the decision violated Article 19 of The United Nations Convention on the Rights of People With Disabilities (UNCPRD):

“Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement.”

Using this argument successfully breaks new ground for SDA cases. It could influence decisions at the AAT and the SDA Panel, which approve SDA decisions within the Agency. In adopting this argument, the AAT notes that the government is violating an international convention by denying people with disabilities their fundamental rights.

AK argued that the Agency’s decision violated Article 19 and his ability to choose to live in a dwelling with a second bedroom.

He stated that he had three clear reasons for needing the second bedroom:

  • Space for his children to stay overnight
  • Space for storage of equipment, including wheelchairs, walking frame and exercise equipment
  • Space for office equipment designed to help him keep in contact with and mentor those in his Indigenous community.

Space for Family Members

The Tribunal agreed with AK that it was reasonable and necessary for him to use a second bedroom for other family members. The Tribunal also disagreed with the Agency’s argument that the participant had to cover the extra cost to house family members not eligible for the Scheme.

Space for Equipment

At the hearing, the Agency argued that extra space for storage of equipment was only reasonable and necessary if the participant had additional medical equipment rather than simply equipment for activities of daily living, as AK requested. The Tribunal rejected the Agency’s argument and stated that, in this case, it was reasonable and necessary to fund additional space for equipment and the Onsite Overnight Assistance (OOA) which AK occasionally requires.

Office Equipment for Community Engagement

The Tribunal also accepted AK’s statement that his disability prevented him from achieving his goals of maintaining contact with and mentoring his Indigenous community. This decision opens the door for other Indigenous participants who share similar goals. In AK’s case, the storage and use of office equipment in the second bedroom will help him achieve the goal he stated in his plan, which again made it reasonable and necessary.

Bonus Finding: SDA Payments Are SEPARATE from Rent

The judgment also found that rent is separate from SDA payments under the “reasonable and necessary” provisions. This finding means that because participants (like non-participants) are paying rent and receiving SDA payments, they have the right to choose who lives with them, providing that the extra space is reasonable and necessary. It is not the Agency’s place to determine that participants must live with another participant because that is “value for money” or contributes to Scheme sustainability. Bravo to the AAT for turning the “choice and control” mantra from words into action! 

Wider Implications

Again, it is important to state that AAT findings are not legal precedents. However, this case does open a range of opportunities for SDA applicants seeking additional bedrooms for compelling reasons. It is now part of the record that additional bedrooms in SDA dwellings can be reasonable and necessary, as it should be. Hopefully, the decision will create a movement away from the trend of viewing a second bedroom as a privilege and return to the initial phase of SDA, when the Agency supported these requests as a right. I was fortunate that I didn’t have to go to the Tribunal to have the extra bedroom that I am in as I write this post.

AK and his supporters should be commended for blazing the trail and clearly and forcefully arguing for his rights. These rights have now been reaffirmed. It is one thing to have appropriate accommodation. However, it is quite another to win the battle to choose how – and with whom – we live. Ideally, this Tribunal finding will open the way for participants who need SDA funding to have further choice and control over living in the manner they wish. One hopes that AK’s activism and willingness to advocate for himself means that this will become the norm.

Authors

Todd Winther

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