AAT ruling a victory for Australians living with dysphagia

A legal ruling in June 2019 has confirmed that prescribed thickened fluids and nutritional support products can be claimed under the National Disability Insurance Agency (NDIA).

The case involved a 34-year-old man who has dysphagia as a result of cerebral palsy. He appealed against a decision not to fund his fluid thickeners and nutritional support products.

The NDIA argued that the thickening fluids prescribed by a speech pathologist – which helped the man swallow safely and “gave him independence and confidence” – were health-related, not a disability support.

The NDIA has consistently argued that it would not fund supports that it believed were more appropriately funded by another government service such as the health department-even if no other service actually offers the support.

But the Australian Administrative Tribunal (AAT) deputy president Brian Rayment this month ruled that any support the NDIA refuses to fund needs to be made available by another government service provider.

According to a report in Pro Bono News, the ruling could set a precedent for people seeking other health-related supports through their NDIS plans. It follows a successful campaign from the Council for Intellectual Disability (CID) earlier this year to get interim NDIS funding for some swallowing therapies.

CID Chief Executive Officer Justine O’Neill said the AAT ruling affirmed that a person’s ongoing relevant health needs must be met by the NDIS if they were not met by existing health services.

The Guardian Australia reported that thousands of Australians living with the life-threatening swallowing condition could now get NDIS funding. It said experts and advocates had described the AAT’s decision as a “watershed”, arguing the agency would now be forced to fund swallowing supports, which are vital for people living with dysphagia.

Darren O’Donovan, an administrative law expert at La Trobe University, said the decision was a “powerful vindication of those advocates fought such a long battle to correct agency policy in this area”.

“Swallowing and dietary support is an integral part of people’s social and family lives,” he told The Guardian Australia. “It is not just preventing a person from choking (or other medical events), it enables the person to step out confidently into the world.”

Piers Gooding, a disability law expert at Melbourne University, said the issue had not been “examined in the Federal Court so this decision sets an important precedent”.

He noted about 34,000 people had cerebral palsy in Australia. While the prevalence of dysphagia among them varied, it was substantial.

Flavour Creations CEO Bernadette Eriksen said the ruling brought to light the importance of appropriate support for people living with dysphagia.

“Flavour Creations has been supporting people with this life-threatening condition for more than 23 years through the provision of safe and nutritious thickened fluids that deliver maximum hydration and nutrition,” she said.

“This ruling is a win for thousands of Australians who rely on this vital support.”

The NDIA has indicated that it is considering the AAT decision and whether it will appeal to the Federal Court.

Photograph: Tanisha Flemming, left, and her brother Harley. Flemming was denied funding as the NDIA and states argued over who should fund swallowing supports. Photograph: Council for Intellectual Disability