Assistance Animals: Reasonable & Necessary?

Let me paint you the ultimate fantasy: you own a chocolate-coloured Labradoodle with adorable puppy dog eyes. On top of getting an A+ in cuteness training, this clever pup also does your laundry, stops strangers from invading your personal space, and fetches you bottles of water. Not bad, right?

But as many NDIS participants seeking funding for assistance animals will tell you, the path to this man’s best friend paradise is often far from smooth.

To be completely honest, I will use any excuse to write an article about assistance animals. It’s something of an obsession. It was lucky, therefore, that the perfect justification fell right into my lap: since our last article on assistance animals, we’ve been hit by an avalanche of new information.  

In late November 2021, the NDIA released Operational Guidelines (OGs) for funding assistance animals. As if that weren’t enough, the Administrative Appeals Tribunal (AAT) published four additional decisions on funding for assistance animals, including three focused on the support for people with autism spectrum disorder (ASD). These cases marked the first time that the AAT specifically addressed the use of assistance animals for this disability cohort. We compare the outcomes of these cases to the policy outlined in the OGs. Spoiler alert: there are discrepancies.

What’s this worth?

In turns out I’m not the only person obsessed with assistance animals. In the past few years, there have been seven AAT hearings about NDIS funding for assistance dogs, including four in the last six months. This is a remarkable number of cases for any one support. The question is, why? The best guess is that the NDIA is uncomfortable with the price tag on the dog’s collar.  The question of “how much is that doggy in the window?” takes on a whole other meaning when the dog in question knows how to switch on the lights. If the support is approved, the NDIA foots the bill for training and procuring the dog, which in one recent case added up to $40,000. Moreover, the NDIS will also pay ongoing maintenance costs, which the new OGs say is generally $2,725 per year.

 On the flip side, however, pursuing these cases at the AAT comes with its own price tag. DSC has seen a Freedom of Information (FOI) document showing that the NDIA spent $214,287.98 (excl. GST ) on legal fees for the  five of the seven AAT assistance animal cases.

Operational Guidelines – Who can get an assistance animal?

The most controversial section of the OGs describes which disability cohorts can qualify for assistance animals. The OGs specify that the NDIS will only fund assistance animals if there is a strong evidence base that the support is likely to be effective and beneficial for the person with disability. This is reasonable but deciding what constitutes strong evidence is far from simple. 

According to the OGs, there is a narrow list of disabilities for which the NDIS will fund assistance animals: hearing impairments, vision impairments, physical impairments, and Post-Traumatic Stress Disorder (PTSD). The implication, without it being straight up said, is that this is an exhaustive list. People with PTSD also must have “no additional psychiatric diagnoses” – a position which it would be great to see challenged at the AAT.

On autism in particular, the OGs say that “there’s very little research or evidence an assistance animal is more effective than other supports. A companion animal or other supports that people with similar needs use, are shown to be just as effective.”

The NDIA also states that it does not believe there is good evidence that medical alert animals are beneficial.

Hold up, so people with autism can’t get funding for assistance animals?!?

Whether people with autism can access this four-legged support depends on who you ask: the NDIA or the AAT.

In December 2021, the AAT published a decision on the case of CYHY, an eight-year-old boy with ASD, Social (Pragmatic) Communication Disorder, Generalised Anxiety Disorder, and ADHD. He struggles with emotional regulation when travelling to and from school, and his heightened emotional state has also made it difficult for him to make progress in therapies with allied health professionals (AHPs). CYHY is an animal lover and is quoted as saying (rather correctly), ‘animals are better than people.’ Therefore, his mother and several AHPs agreed that he was likely to benefit from an assistance animal.

A central point of contention in the case was whether the research has shown assistance animals to be effective and beneficial to people with autism. You’ll remember from the quote in the OGs that the NDIA is far from sold on the literature. The Tribunal acknowledges the significant academic debate on the evidence and the relatively small sample sizes of all studies. However, in contrast to the OGs, the AAT concluded that there was a “definite trend” indicating that assistance animals are often beneficial to people with ASD. In CYHY’s case, given his special interest in animals, the Tribunal was confident that “on the balance of probabilities,” the support would be beneficial.

In TJYS v NDIA, the Tribunal also accepted there was evidence assistance animals can be beneficial for the “applicant and for other children on the autistic spectrum.” However, in this case, rather than engaging with a complex academic debate, the AAT relied on evidence from the TJYS’s treating occupational therapists, speech therapist and psychologist.

In case you wanted more, in MMBX  the Tribunal also accepted the evidence that assistance animals can be beneficial to people with autism.

So, in the game of Doggos v OGs, the score is officially three- nil.  

 The safety of the pup

Another argument that often pops up AAT cases is animal welfare concerns. In CYHY, the Agency drew attention to the applicant’s behaviours of concern and whether they could pose a risk to the dog’s welfare. In this case, the Tribunal was convinced this would not be an issue due to CYHY’s previous interactions with animals and because his mother, as the primary handler, would be present whenever they interact.

Even though the Agency has never been successful with this line of argument at the AAT, it’s not a surprising that they keep bringing it up.  It’s a sympathetic case– nobody wants to see little pups getting hurt. However, this position also seems to contradict the OGs, which state that the responsibility for assessing the home environment and ensuring the dog’s welfare lies with the assistance animal provider, not the NDIA.

More than a pet

The OGs also state that for an animal to qualify as an assistance animal, it needs to perform at least three tasks that the person cannot do because of disability. This is the method they  have landed on to for distinguishing between assistance animals, emotional support animals (who have public access rights but don’t perform specific tasks) and companion animals.

In theory the rule makes some sense, even if three is a somewhat arbitrary number. My cat Butter, for example, brings me a great deal of joy and is a source of emotional support. However, the only task the little menace performs is providing me regular feedback about ways I have failed to serve her, putting her very much in the pet camp.  But there are other cases which are far less clear cut.    

The three- task rule itself has not been challenged at the AAT, but its boundaries are often tested. In MMBX, a 26-year-old man with ASD, obsessive-compulsive disorder, and depression, applied for an assistance animal to support his transition into a more independent living arrangement. The Agency argued the dog would effectively function as a pet, whereas MMBX contended it would complete the following tasks:  

• Disrupting stress through pawing and nudging

• Creating a personal space buffer for overwhelming stimuli

• Providing physical pressure as a decompression support to encourage MMBX to sit down.

The Tribunal concluded that these supports went beyond the usual KPIs for pets and the support was approved.

However, in RH v NDIA (the only assistance animal case the Agency has won), the Tribunal was not satisfied the applicant’s dog was acting as more than a companion animal. The AAT accepted that RH’s pup Pluto provided huge amount of emotional support. However, they concluded that Pluto had not done the necessary training to respond to cues about what RH needs in that moment. This emphasis on responding to cues is interesting. RH gave evidence that on mornings when his psychosocial disability makes it difficult for him to get out of bed, its Pluto’s gentle nagging that gets him up. However, the Tribunal did not believe that Pluto was responding to cues about RH’s mental state, but rather was acting like a normal companion dog. 

Why so inconsistent?

Overall, it’s very welcome that we now have OGs dedicated to assistance animals- it is a complex support that many people have questions about. However, what’s considerably less welcome, are instances when the policies outlined in these Guidelines contradict how the AAT has interpreted the Act. And here’s the most frustrating part: when the new OGs were published, the ruling in the TJYS case was already public. Moreover, the NDIA would have naturally been aware that further AAT judgements that dealt with some of the most controversial elements of the new OGs would soon be released. While AAT rulings do not set a legal precedent, the Agency is supposed to use them to aid with its interpretation of the NDIS Act and implementation of the Scheme. How can this inconsistency be justified?

But let’s not end an article about puppies on a negative note. Instead, these pictures of good dogs serve as our gift to you, dear reader.