Ahrens and National Disability Insurance Agency (NDIS)

[2025] ARTA 792

Ahrens and National Disability Insurance Agency (NDIS) [2025] ARTA 792 (16 June 2025)

Applicant/s:  Sebastian Ahrens

Respondent:  National Disability Insurance Agency

Tribunal Number:                2024/5215

Tribunal:General Member Dr. S. Clark

Place:Sydney

Date:16 June 2025

Decision:The Tribunal affirms the decision under review.

...............[SGD]................................................

General Member Dr. S. Clark

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – participant supports – plan review – supported independent living – 24/7 – 1:1 – reasonable and necessary supports – behavioural support management – consideration of section 34 National Disability Insurance Scheme Act 2013 (Cth) – decision under review affirmed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024.

National Disability Insurance Scheme Act 2013 (Cth) s34, s35

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024

National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024

National Disability Insurance Scheme (Supports for Participants) Rules - 1 July 2013, Rules - 3, 5

National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024

CASES

Beezley v Repatriation Commission [2015] FCAFC 165 (2015); 150 ALD 11 at [68].

Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; see also BHXJ and NDIA [2023] AATA 513, at [76] per SM Groom.

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 at [51] (Bell, Gageler, Gordon and Edelman JJ).

National Disability Insurance Agency v WRMF [2020] FCAFC 79 [201].

National Disability Insurance Agency v WRMF [2020] FCAFC 79, at [145].

NDIA v WRMF [2020] FCAFC 79 [141].

SECONDARY MATERIALS

NDIS – Operational Guidelines – Reasonable and necessary supports, 22 September 2024.
NDIS – Operational Guidelines – Supported independent living, 24 October 2024

Statement of Reasons

INTRODUCTION

1. Mr Ahrens, the Applicant, is a 24-year-old man with Autism Spectrum Disorder (Level 3) (ASD), Attention Deficit Hyperactive Disorder (ADHD), Complex Post-Traumatic Stress Disorder (C-PTSD), a moderate intellectual disability, anxiety and depression. He also has Type II Diabetes and sleep apnoea.

2. Mr Ahrens lives on his own in NSW and receives 24/7 1:1 supported independent living (SIL). He was raised by his biological Aunt and Uncle after his biological parents relinquished care at the age of three. The Applicant refers to Uncle and Aunt as ‘mum’ and ‘dad’ and their four children as his siblings. The Applicant’s Aunt sees the Applicant regularly and speaks to him almost daily by phone. The Applicant’s Aunt is Mr Ahrens’ legal guardian.

3. Mr Ahrens’ current Core supports budget in his NDIS plan for SIL consists of 3 hours per day of 1:1 support with the remaining daytime hours funded at 1:2 and 1:2 inactive overnight support. For the latest plan period from 20 March 2025 to 20 September 2025 this is reflected in the amount of $207,513.66.

   THE DECISION UNDER REVIEW

4. On 20 February 2024, a delegate of the CEO of the Agency (delegate) made a decision under s 33 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) to approve the statement of supports in the Applicant’s NDIS Plan.

5. On 28 June 2024, a delegate made a decision under s 100(6)(a) of the Act to confirm that statement of supports for the Applicant. This is the reviewable decision.

6. On 22 July 2024, the Applicant made an application to the Administrative Appeals Tribunal (AAT). Pursuant to s 24 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the application for review must now be continued and finalised by the Administrative Review Tribunal (the Tribunal).

7. The Tribunal is reviewing the decision made by the internal reviewer on 28 June 2024 approving the Applicant’s statement of participant supports (SOPS) under s 33(2) of the NDIS Act.

8. On 17 March 2025, the Respondent agreed to replenish the Applicant’s plan for another six months, which has enabled him to remain with Care Group Community Services while awaiting a decision from this Tribunal.

9. The issue before the Tribunal is whether the requested supports are reasonable and necessary under s 34(1) of the Act.

10. The Tribunal understands the following support to be in issue (Requested Support):

    a.     24/7 Supported Independent Living (SIL), comprising 3 hours per day at a 1:1 ratio, with the remaining daytime hours at a 1:2 ratio including inactive overnight support.

11. At the hearing, the Tribunal took a fresh and impartial look at the reviewable decision by the Respondent. The Tribunal is independent of the Agency. It considered all relevant evidence on the Tribunal file and oral evidence provided during the hearing to make the correct or preferable decision according to law.

12. Under s ­­­105 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), the Tribunal has the power to affirm the decision (which would have the effect of leaving things as they are), varying the decision or making a completely new decision about the supports that should or should not be included in Mr Ahrens’ plan.

13. The parties appeared before the Tribunal at a hearing on 6 May and 7 May 2025 to give evidence and present arguments. The Applicant was represented by Counsel, Dr Fallah who was briefed by Ms Dekker from Legal Aid. The Respondent was represented by Counsel, Ms Amy Douglas-Baker, who was briefed by Mr Rieschieck from Mills Oakley. The proceedings were conducted by video using the Microsoft Teams platform. The Applicant did not appear at the hearing. Oral evidence was provided at the hearing for the Applicant by The Applicant’s Aunt, Ms Minogue, Senior Behavioural Support Therapist and Mr Umali, occupational therapist.

    LEGISLATIVE FRAMEWORK

    Objects, General Principles, and Intentions of the NDIS Act

14. Sections 3, 4 and 5 of the NDIS Act set out the objects, general principles and intentions of the NDIS Act.

15. While an objects clause may not be used to override the otherwise clear meaning of an operative provision, it can assist in giving 'practical content' to common terms that are used within the legislative scheme and are intended to facilitate an understanding of the intended construction and operation of the Act, by setting out what Parliament intends to pursue by the exercise of legislative power.[1]

    [1] National Disability Insurance Agency v WRMF [2020] FCAFC 79, at [145].

16. Section 3(1) of the NDIS Act provides that the objects of the NDIS Act include, relevantly, to provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme (NDIS) and to enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports.

17. Similarly, section 4 of the NDIS Act sets out the general principles guiding actions under the Act. They include, relevantly, that people with disability should be supported to receive reasonable and necessary supports, including early intervention supports. Reasonable and necessary supports for people with disability should support people with disabilities to live independently and to be included in the community as fully participating citizens. People with disability should also be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.

18. The advancement of the objects and general principles of the NDIS Act is not without limits. Sections 3(3) and 4(17) of the NDIS Act provide that in giving effect to the objects and general principles of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the National Disability Insurance Scheme, and the provision of services by other agencies, departments or organisations and the need for interaction between provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.

19. Section 5 of the NDIS Act further states that it is the intention of the Parliament that, if the NDIS Act requires or permits an act or thing to be done by or in relation to a person with disability by another person, the act or thing is to be done, so far as practicable, in accordance with the principles that, relevantly, people with disability should be involved in decision making processes that affect them, and where possible make decisions for themselves.

20. Thus, in the provision of reasonable and necessary supports under the NDIS Act, a balance is required between ensuring that people with disability can exercise choice and control in the pursuit of their goals and the planning and delivery of their supports, and the need to ensure the financial sustainability of the NDIS.

    Statement of Participant Supports

21. The Tribunal’s task is to stand in the shoes of the decision maker and review the decision that is the subject of this review.[2]

    [2] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 at [51] (Bell, Gageler, Gordon and Edelman JJ).

22. The primary decision was the approval of the Applicant’s plan under section 33 of the NDIS Act. The reviewable decision was limited to reviewing the statement of participant supports that was included in the plan under section 33(2) of the NDIS Act: Section 99 of the NDIS Act, item 4. The Tribunal’s review is of the reviewable decision: Section 103 of the NDIS Act.

23. Section 33 of the NDIS Act includes the following relevant provisions:

    33 Matters that must be included in a participant's plan

    …

    (2) A participant's plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:

    (a) the general supports (if any) that will be provided to, or in relation to, the participant; and

    (b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and

    (c) the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and

    (d) the management of the funding for supports under the plan (see also Division 3); and

    (e) the management of other aspects of the plan.

    …

    (5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:

    (a) have regard to the participant’s statement of goals and aspirations; and

    (b) have regard to relevant assessments conducted in relation to the participant; and

    (c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and

    (d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and

    (e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and

    (f) have regard to the operation and effectiveness of any previous plans of the participant.

24. The Tribunal’s task is two-fold. First, it needs to determine whether the claimed supports are ‘reasonable and necessary supports’ within the meaning of that phrase in the NDIS Act. Second, even if considered to be a ‘reasonable and necessary support’, a decision will need to be made as to whether that will be funded under the participant’s Plan.

    Reasonable and necessary supports

25. In determining what ‘reasonable and necessary supports’ will be funded under a Participant Plan, section 34 of the NDIS Act provides as follows:

    34 Reasonable and necessary supports

    (1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

    (aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);

    (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;

    (c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

    (d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

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

    (f) the support is an NDIS support for the participant.

    (2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of the paragraphs (1)(aa) to (f).

26. Each of the requirements of s 34(1) and the Rules must be satisfied for a requested support to qualify as a reasonable and necessary support. If the Tribunal is not positively satisfied that any one of the criteria in section 34(1) or the Rules is met in relation to a requested support, then the Tribunal must find that that support is not a reasonable and necessary support for the purpose of the NDIS Act.

    NDIS Support

27. In October 2023, the NDIS Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth) (the Amending Act) was passed. That Amending Act made several relevant changes including to s 34 of the Act.

28. The Act, as revised, applies to the current review: s 129 Amending Act.

29. The Amending Act made several changes to s 34, including inserting the present wording at 34(1)(f) requiring that the support be an ‘NDIS Support’, and defining that term.

30. The term ‘NDIS support’ in subsection 34(1)(f) is defined in s 10 of the Act by reference to the relevant rules, being the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth) (Transitional Rules).

31. The Transitional Rules declare in Schedule 1 a list of supports which are taken to be NDIS supports for the purpose of s 34(1)(f), and in Schedule 2 a list of supports which are taken not to be NDIS supports for the purpose of s 34(1)(f).

    (a) A support which is declared in Schedule 2 as “generally not an NDIS support” is not an NDIS support, for the purpose of s 34(1)(f), and therefore cannot be a “reasonable and necessary” support;

    (b) A support which is declared in Schedule 1 to be an NDIS support must still meet the other requirements of s 34(1) in order to be a ‘reasonable and necessary’ support

    s 10(6) of the Act provides power for the CEO to declare a support which is proscribed by Schedule 2 to be an NDIS support for a particular participant, but only where s 10(6) is satisfied. That section is not relevant for this review.

32. The Amending Act replaced the former s 34(1)(f). The same obligation now appears instead at National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024, r 7. The CEO must also be satisfied that:

    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:

    (a) as part of a universal service obligation; or

    (b) in accordance with reasonable adjustments required under a law dealing with discrimination based on disability.

33. This provision, in effect, continues the requirement which was previously found in s 34(1)(f) prior to 3 October 2024. The Prior Rules continue in effect, to the extent relevant here.

    Reasonable and necessary

34. The term ‘reasonable and necessary’ is not defined in the Act. In WRMF, the Full Court of the Federal Court observed that the phrase ‘connotes supports which meet a threshold which justifies – by reference to the context, objects and guiding principles of the Act and the facts of the case – the expenditure of public funds for that support, for a particular participant.’

    Rules

35. Subsection 34(2) provides that the NDIS rules may prescribe methods or criteria to be applied or matters to which the decision maker is to have regard, in deciding whether they are satisfied that the criteria under s 34(1) have been met in respect of a requested support.

36. The relevant rules are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules). Part 2 of the Support Rules relevantly sets out that:

    In administering the NDIS and in approving each plan the CEO must have regard to objects and principles of the Act including the need to ensure the financial sustainability of the NDIS and the principles relating to plans.

37. Relevantly, Part 3 of the Support Rules sets out the following:

    Value for money

    3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:

    (a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;

    (b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;

    (c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);

    (d) for supports that involve the provision of equipment or modifications:

    i. the comparative cost of purchasing or leading the equipment or modifications; and

    ii. whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;

    iii. whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;

    (e) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).

    Effective and beneficial and current good practice

    3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:

    (a) published and refereed literature and any consensus of expert opinion;

    (b) the lived experience of the participant or their carers; or

    (c) anything the Agency has learnt through delivery of the NDIS.

    3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary, seek expert opinion.

    Supports appropriately funded or provided through the NDIS

    3.5 Schedule 1 sets out matters for the CEO to have regard to in considering whether supports are most appropriately funded or provided through the NDIS, rather than through other service systems (service systems is defined in paragraph 6.4).

    …

    3.7 Where particular supports are set out in the Schedule as being appropriately funded or provided through the NDIS, the CEO must still be satisfied of a number of other matters in order for the supports to be funded or provided (see paragraphs 2.3(a)-(e) of these Rules and paragraphs 34(a)-(e) of the Act).

1. Further, Part 5 of the Support Rules sets out general criteria for supports, and supports that will not be funded or provided:

   General criteria for supports

   5.1 A support will not be provided or funded under the NDIS if:

   (a) it is likely to cause harm to the participant or pose a risk to others; or

   (b) it is not related to the participant’s disability; or

   (c) it duplicates other supports delivered under alternative funding through the NDIS; or

   (d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.

   5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):

   (a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;

   (b) costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.

2. The Tribunal must also have regard to any relevant Guidelines prepared by the Agency for the purpose of these decisions.

   Operational Guidelines

3. The Agency also issues Operational Guidelines in relation to the supports. There is no power conferred to the Agency to make Operational Guidelines and they are issued as an exercise of executive power. The Tribunal is not bound by any policy set out in the Agency’s Operational Guidelines. However, unless they are inconsistent with the provisions or objects of the legislation, the NDIS Operational Guidelines represent government policy and should be applied unless there is good reason to depart from them.[3]

   [3] Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; see also BHXJ and NDIA [2023] AATA 513, at [76] per SM Groom.

4. The NDIS Supported Independent Living (SIL) Operational Guidelines provide:

   i. SIL may be suitable for a participant who needs both:

   a) active disability support for more than 8 hours per day to complete daily activities; and,

   b) some level of support for the other hours – that is, support for 24 hours per day, 7 days per week, including overnight support.

   ii. Active disability support means support in the home to assist with daily activities and includes direct support and monitoring support such as supervision with assistance to complete tasks where needed.

5. The Operational Guidelines also state what is expressly included, these include:

   ·     to action any behaviour support plans you have

   ·     with supervision, personal safety and security

6. The Applicant does not bear any formal onus of proof to establish that the requested supports are reasonable and necessary. Nevertheless, a request for supports is a claim for a public benefit which will only be available if the statutory requirements of ss 33 and 34 of the Act and the associated Rules are met.[4] The Applicant therefore bears a practical onus of putting forward, or drawing attention to, material that persuades or satisfies the Tribunal that those criteria are met.

   [4] Beezley v Repatriation Commission [2015] FCAFC 165 (2015); 150 ALD 11 at [68].

7. The Tribunal must therefore be ‘positively satisfied’ of all seven criteria in section 34 of the NDIS Act before approving the requested supports.[5]

   [5] National Disability Insurance Agency v WRMF [2020] FCAFC 79 [201].

8. Essentially, the Tribunal’s task is two-fold. First, it needs to determine whether the claimed supports are ‘reasonable and necessary supports’ within the meaning of that phrase in the NDIS Act. Second, even if considered to be a ‘reasonable and necessary support’, a decision will need to be made as to whether that will be funded under the Plan.

9. Even if the above criteria in section 34 are met, the Tribunal will need to be satisfied that the proposed supports accommodate the individual’s particular impairments and to assist that individual to be a participating member of the Australian community, on the basis of that values set out in the objects, guiding principles of the NDIS Act.[6]

   [6] NDIA v WRMF [2020] FCAFC 79 [141].

   ISSUES

10. On 20 February 2024, a delegate of the CEO of the Agency (delegate) made a decision under s 33 of the Act to approve the statement of supports in the Applicant’s NDIS Plan.

11. On 28 June 2024, a delegate made a decision under s 100(6)(a) of the Act to confirm that statement of supports for the Applicant. This is the reviewable decision.

12. On 22 July 2024, the Applicant made an application to the Administrative Appeals Tribunal (AAT). Pursuant to s 24 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the application for review must now be continued and finalised by the Administrative Review Tribunal (the Tribunal).

13. In the application for review, the Applicant states (without correction):

    The Respondent erred in its internal review decision dated 28 June 2024 in the following respects:

    1. By failing to fund Supported Independent Living (SIL) funding on a 24/7 basis at a 1:1 ratio of support.

    The Applicant has extremely complex needs and behaviours of concern that has resulted in termination of his previous housing arrangement, and numerous incidents some involving knives and attempted assaults of members of the public. The Applicant must be provided with 1:1 support, 24/7.

    His current provider has no option but to provide that level of support given the extreme level of danger to the Applicant, staff, and the community if the Applicant was left without that level of support.

    2. The Respondent failed to increase core social community funding to 20 hours per week at 1:1 high intensity rates

    The Applicant should be afforded an opportunity to safely access the community. He is only able to do so with 1:1 support at a high intensity rate given his constant behaviours of concern.

    This matter is urgent given the plan is currently being utilised at a 1:1 24/7 ratio of support and, on present estimates, is due to be completely exhausted by the end of August 2024.

14. The Tribunal is reviewing the decision made by the internal reviewer on 28 June 2024 approving the Applicant’s statement of participant supports (SOPS) under s 33(2) of the NDIS Act.

15. The issue before the Tribunal is whether the following support is reasonable and necessary pursuant to s 34 of the NDIS Act, having regard to the NDIS Rules and Operational Guidelines:

    (1) Increased Core Support – Supported Independent Living (SIL) at 1:1 ratio, 24 hours per day, 7 days per week with active overnight care.

    EVIDENCE

16. I have considered the oral evidence provided at hearing on 6 and 7 May 2025, the filed written evidence as provided in the joint tender bundle (JTB), and the parties’ closing submissions. For the reasons that follow, I summarise and rely on the more salient aspects of the evidence in respect of this application for review. However, the fact that I do not refer to all of the evidence in the JTB does not mean that I have not taken all evidence before the Tribunal into account in reaching my conclusion.

    Evidence about Mr Ahrens

17. Mr Ahrens is a 24-year-old single man. He has Autism Spectrum Disorder (ASD Level 3), a mild intellectual disability, Attention Deficit Hyperactivity Disorder (ADHD), and Complex Post-Traumatic Stress Disorder (C-PTSD).  He also has Type II Diabetes and sleep apnoea.[7]

    [7] T1B, ‘Complex Case Consultation, NSW Health – Clint Pistilli (Psychiatrist) et al’. AB19, ‘Behaviour Assessment and Positive Behaviour Support Plan’, pp 775–848.

18. Mr Ahrens was granted access to the scheme on 11 September 2017.

19. His parents relinquished care when he was a toddler, after which his paternal aunt and her husband adopted him. He calls them ‘mum’ and ‘dad’ and grew up with four siblings. Mr Ahrens appears to have had an otherwise stable childhood. He experienced bullying at school, but according to his mum, the routine prevented behaviours of concern.

20. The hospital report by Dr Piscelli and others, addressed below, [8] indicates that Mr Ahrens has a long history of emotional and behavioural difficulties, which worsened when he transitioned into high school. The transition out of adolescence into adulthood, after leaving school appears to have resulted in an escalation in behaviours of concern for Mr Ahrens.

    [8] T1B, ‘Complex Case Consultation, NSW Health – Clint Pistilli (Psychiatrist) et al’.

21. In February 2020, Mr Ahrens was removed from the family home due to engaging in high intensity physical aggression and property damage, after which police were called. He then moved into short-term accommodation (STA) and moved between a number of providers including, Sunnyfield in Sydney. The Applicant’s Statement of Facts, Issues and Contentions (SOFIC) states that during the four-week stay at Sunnyfield disAbility Services, Mr Ahrens had seven significant incidents ‘involving self-injurious behaviours, property damage, staff assault, verbal abuse and threatening to kill’. The police attended the provider on many occasions and held Mr Ahrens in a holding cell on one occasion.[9]

    [9] ASOFIC [27].

22. In August 2020 Mr Ahrens moved into long-term SIL with CareSouth. Due to the applicant not being funded 1:1, Care South moved Mr Ahrens into a shared arrangement with another participant. This is summarised in the Applicant’s SOFIC, indicating that in the eight weeks that this shared arrangement lasted, incidents of behaviours of concern increased, resulting in ‘psychological harm to [Mr Ahrens] his housemate, staff and neighbours in the street’.[10]

    [10] ASOFIC [28].

23. Mr Ahrens was then moved into supported accommodation with the same provider, in the Worrigee area, where he lived for six months before his hospital admission at Shellharbour Hospital Mirrabook Acute Mental Health Unit on 18 May 2021.

24. On 5 September 2023 Care South issued a letter of cessation of the Supported Independent Living Service Agreement with Mr Ahrens.[11] In a ‘Change of details or change of situation’ form, it was stated the reason for the cessation was that the ‘provider has advised that they are unable to accommodate my complex needs, nor manage my behaviours of concern.’[12]

    [11] T7, ‘Notice of Cessation, Denise Hanley (Regional Manager CareSouth), p 157.

    [12] T9, ‘Form, Change of Details or Change of Situation’, pp 212­–222 at p 217.

25. On 12 February 2024, Mr Ahrens moved to Care Group Community Services.

26. Mr Ahrens now resides in Supported Independent Living (SIL) with Care Group in the Falls Creek area of NSW. He lives on his own and is currently receiving 1:1 support for 24 hours a day, seven days a week, with overnight support.

27. In an email tendered at the hearing, Mr Ahrens’ Specialist Support Coordinator Mr Joel Rivers confirmed that Mr Ahrens’ Social and Community Participation funding is being used flexibly to continue to support Mr Ahrens in receiving this ratio of care.[13]

    [13] E1, Email from Mr Joel Rivers to Shana Dekker’, 7 May 2025.

28. Mr Ahrens’ behaviour changed significantly in 2019, a year after finishing high school, with increases in physical aggression and property damage, often requiring Police and ambulance services. He then moved out of the family home and moved between STA providers for months which was highly traumatic and destabilising for him.  In 2020, Mr Ahrens moved into a Care South house. He has moved once since and now currently lives in a supported independent living (SIL) house provided by Care South in Falls Creek.[14]

    [14] H1, T4, ‘Record of Implementation – Trusted Clinical Services ‘, pp 57–77.

29. I note that Mr Ahrens has informal supports in his residential area.[15]

    [15] H3, ‘Report of Vine Umali (Occupational Therapist), pp 901–929. (sic)

30. Mr Ahrens’ current SOPS in his six-month plan for the period from 20 March 2025 to 19 September 2025 contains five goals, to:[16]

    (a)Be supported to maintain his connection with my family and visit them regularly

    (b)access community-based activities to help build on his social skills, life skills and friendships

    (c)maintain his safety, wellbeing and independence whilst living in the community in his own home

    (d)access the community to help him build on his independence and have the opportunity to exercise

    (e)learn to better regulate his emotions.

    [16] H8, ‘NDIS Plan’, p 1070.

31. I refer in full to the Applicant’s closing submissions of 7 May 2025 where he contends why his requested support is reasonable and necessary.

    The Applicant’s Aunt and Adopted Mother

32. I refer to The Applicant’s Aunt’s carer impact statement dated 11 December 2024.[17] In addition, The Applicant’s Aunt gave oral evidence at the hearing. I am satisfied that her evidence was honest and truthful. The Applicant’s Aunt’s oral evidence aligned with her written statement.

    [17] AB15, ‘Carer Impact Statement’, pp 738–739.

33. Her evidence can be summarised as follows.

34. The Applicant’s Aunt was anxious and afraid as a result of all that has occurred with respect to Mr Ahrens’ self-harm and harm to others and property. She did not seem closely familiar with the allocated supports in Mr Ahrens’ plan and how they were distributed, which the Tribunal understands, noting Mr Ahrens’ plan is Agency-managed.

35. The Applicant’s Aunt has worked as a disability support worker for four years. Prior to this she cared for Mr Ahrens full time. The Applicant’s Aunt stated that Mr Ahrens lived with her until 2020 when he was taken by the police from her home. This occurred after Mr Ahrens tried to harm his sister who was with her two children, both younger than two years of age. Since then, the Applicant’s Aunt sees Mr Ahrens regularly and communicates with him by phone almost every day.

36. She stated that when he loses ability to manage his behaviour, she fears for her safety, Mr Ahrens’ safety and the safety of the community. She expressed the fear that Mr Ahrens may one day be successful in his expressed wish to kill himself.

    Ms Khalia Minogue, Senior Behavioural Support Practitioner, The Disability Trust

37. Ms Minogue has worked as a Behaviour Support Practitioner since 2018, which is when she began working with Mr Ahrens. In her response to targeted questions dated 21 March 2025, she stated that she is also an Independent Specialist with the Department of Communities and Justice in NSW, ‘a role specific to ensuring restrictive practices are least restrictive and meet current legislation and policy’.[18] Ms Minogue authored the applicant’s Behaviour Support Plans dated 24 July 2020,[19] 11 October 2023,[20] 13 February 2025;[21] an undated Risk Management Plan;[22] Supplementary Reports dated 19 August 2024 and 15 January 2025;[23] and oral evidence in support of Mr Ahrens’ application.

    [18] AB21, ‘AB21 – Response to Targeted Questions, Khaila Minogue,’ pp 850–862.

    [19] AB8, ‘Positive Behaviour Support Plan, Khalia Minogue’, pp 692–719.

    [20] T8, ‘Behaviour Support Plan, Khalia Minogue (Behaviour Support Practitioner)’, pp 158–214.

    [21] AB19, ‘Behaviour Assessment and Positive Behaviour Support Plan’, pp 775–848.

    [22] T16, ‘Risk Management Plan, Khalia Minogue (Behaviour Specialist)’, pp 323–382. Likely date is November 2021.

    [23] AB14, ‘Supplementary Report, Khalia Minogue’, pp 732–737 and AB16, ‘Supplementary Report, Khalia Minogue’, pp 740–748.

    Risk Management Plan

38. The Risk Management Plan (Risk Management Plan) was stated to be in response to a review conducted due to the escalation in Mr Ahrens’ behaviours and language. It was intended to provide consistent messages regarding the protocols and safeguards designed to maximise the safety of Mr Ahrens, Care South staff and the community.

39. The Risk Management Plan includes the following risk review:

    ·Self-harm: the risk existed prior to Mr Ahrens’ admission to Shellharbour Hospital; ‘there has been a return to actions and language, and actions of self-harm with plastic knife/biting self and threats of harm to self and others’

    ·Assault – physical: incident history indicates resort to this when in ‘red zone’; ‘there has been ongoing and intensifying threats of harm to self and others. [Mr Ahrens] has make threats of “killing” numerous staff, neighbours and family’

    ·Assault – verbal: Mr Ahrens communicates in threatening extreme language when frustrated; Mr Ahrens ‘has almost no tolerance for external noises or actions that displease him – his responses are reactionary, immediate and confronting’

    ·Sexual: Mr Ahrens ‘has an immature response and understanding of appropriate sexual actions’; he has ‘increased his behaviours that are sexually related, this can involve revealing himself, putting dinosaurs in sexual positions and accessing pornography’.

    ·The Risk Management Plan provides an overview of four ‘recent’ incidents spanning the period 6 October 2021 to 27 October 2021, which includes the following:

    ·Emergency services being called

    ·Police being called

    ·Mr Ahrens throwing chairs against walls and threatening to kill staff, hurt her family and destroy her car

    ·Mr Ahrens refusing to take his medication and tipping it down the sink

    ·Mr Ahrens breaking doors

    ·Self-harm with plastic knives

40. The Risk Management Plan includes some of the following, in the ‘action plan and safety strategy’:

    ·Immediate: to meet with CareSouth Team and Ms Minogue to be ongoing as group supervision and therapeutic support

    ·Medium – ongoing: Mr Ahrens is not capable of managing himself and this is reflected in all areas including finance, health, diet; the ‘current residence is not robustly equipped to manage [Mr Ahrens] in ways that will safely accommodate his sometimes violent responses’.

    ·Long term: Ms Minogue was supportive of guardianship by the Applicant’s Aunt (personal and financial) as it would allow for a more supportive and less-threatening relationship between them.

    Behaviour Assessment and Positive Behaviour Support Plan

41. The most recent Behaviour Assessment and Positive Behaviour Support Plan (BAPBSP) filed with the Tribunal is dated 13 February 2025.[24] The documents reviewed by the author in preparing the report includes:

    [24] AB19, ‘Behaviour Assessment and Positive Behaviour Support Plan’, pp 775–848.

42. Neuropsychologist assessment by Dr Adam Vujic dated 17 January 2025[25]

    ·Incident reports by Care Group over 2024

    ·Psychiatry report by Dr Austin-Woods dated 2 February 2025.

    ·Dr Austin-Woods’ report relied on by Ms Minogue in her report is not in the JTB. In evidence before the Tribunal is a letter dated 2 August 2023, addressed below.[26]

    [25] AB17, ‘Assessment Report, Dr Adam Vujic’, pp 749–762.

    [26] T5, ‘Letter, Dr Charles Austin-Woods (Psychiatrist)’, p 75.

43. Ms Minogue’s Report details the behaviours of concern, with the frequency of incidence over the March to October 2024 period. These include:

    ·Physical aggression – others: includes scratching, kicking, biting, using sharps; this includes towards members of the community including attempting to stop their cars, pull them out, make threats, adopting similar behaviour to his game persona on Grand Theft Auto. There have been 15 incidents over the reporting period.

    ·Harm to self – wandering: Mr Ahrens does this impulsively when distressed. When he is successful, it includes him walking out onto busy roads to try to stop cars, as well as approaching community members in an aggressive manner. Incident data over March to October 2024 indicates Mr Ahrens has left the care of supports 5 times.

    ·Property damage: including punching, kicking walls and windows, throwing away personal items. Incident data indicates this has occurred more than 16 times over the reporting period.

    ·Verbal aggression: this includes swearing, yelling, and threatening others. Mr Ahrens ‘will make confronting threats towards others e.g. ‘I am going to kill you’, ‘I will slit your throat’, ‘you better watch out, you’re dead’, and ‘I will kill XYZ in your family’. Incident data indicates this has occurred more than 20 times over the March to October 2024 period.

    ·Harm to self – physical: this includes Mr Ahrens biting himself and/or trying to stab skin with sharp items (knives, forks, tails of dinosaur toys, keys), hitting head with rocks, banging head on surfaces. This also includes threats of harm to self. Incident data indicates this has occurred more than 55 times over the March – October 2024 reporting period.

    ·Harm to self – suicide: this includes suicidal ideation and limiting core beliefs, with statements such as ‘I won’t be here for much longer’, ‘I’m better off dead’, ‘I’m a burden’. Incident data indicates this has occurred more than 50 times over the March – October 2024 reporting period.

    ·Unsafe behaviour – other: this includes unsafe behaviour during transport such as making threats, throwing personal items out of windows, banging the dashboard, and yelling at other drivers. Incident data indicates this has occurred 2 times over the March – October 2024 reporting period.

    ·Other: refusal to take PRN medication which results in Mr Ahrens sustaining injury to himself (such as through biting, banging his head, running onto roads) and others, or emergency services called for assistance.

1. Mr Ahrens’ BAPBSP sets out a process for support workers to apply behaviour management strategies.[27] At Level 1, when Mr Ahrens is anxious or overwhelmed, support workers are to reassure, problem solve, ensure no access to sharps, and ensure the front gate is locked. At Level 2, when Mr Ahrens is frustrated or agitated and exhibiting behaviours such as threats of self-harm, talking about leaving the care of supports, throwing items and engaging in unsafe behaviour during transport, support workers are to reassure and de-escalate, reduce, and mitigate triggers, offer PRN, and if necessary, call 000. At Level 3, when the Applicant is engaging in high intensity threats, physical self-harm, physical aggression, leaving the care of support, attempting to approach community members and unsafe behaviour in transport, support workers are to implement a safety response.

   [27] AB19, ‘Behaviour Assessment and Positive Behaviour Support Plan’, pp 775–848, at pp 45-46.

2. Findings from the incident data surveyed in the BAPBSP indicates that there has been a significant decrease in incidents involving physical aggression since 2021–2022. The number of incidents are as follows (reproduced from the Applicant’s SOFIC dated 4 April 2025):[28]

[28] AB22, ‘Applicant Statement of Facts, Issues and Contentions,’ 863–890.

1. The BAPBSP dated 15 February 2025 also details the restrictive practices that are in place for Mr Ahrens’ behaviour management.[29]

   [29] AB19, ‘Behaviour Assessment and Positive Behaviour Support Plan’, pp 775–848, at pp 48-73.

2. The BAPBSP states that Care Group ‘in collaboration with the author’ is responsible for the implementation of these restrictive practices including the use of Risperidone as a chemical restraint, added in 2019 as a chemical restraint due to ‘significant increase in physical aggression and property damage when living with family’.[30] Further, the BSP refers to the Risperidone ‘fading strategies’. It states:

   Mr Ahrens currently has 4-8-week psychiatry appointments to evaluate and monitor his medication.

   Mr Ahrens would like to reduce and fade out his Risperidone, which is an ongoing goal for him. It has been proposed that this will be further actioned, in 3 months’ time, after his full dosage of anti-depressants have been implemented.

   Paired with collaboration with Dr Wood, Behaviour support, Mr Ahrens and his support team and family are working collaboratively to work on skill development and environmental strategies to reduce the frequency and intensity of behaviours of concern. One barrier Mr Ahrens has faced with implementing a structured routine is that he is underfunded for community support in his current NDIS plan. He is currently proceeding with Aat formalities as a means of addressing this and until this occurs, routine, as an integral part of maintaining predictability and safety, is a gap for him in fading this strategy.[31]

   [30] H4, AB19, ‘Behaviour Assessment and Positive Behaviour Support Plan’, pp 775–848 at p 48.

   [31] H4, AB19, ‘Behaviour Assessment and Positive Behaviour Support Plan’, pp 775–848 at p 54.

   Supplementary reports

3. Ms Minogue authored two supplementary reports dated 19 August 2024 (Supplementary Report 1) and 15 January 2025 (Supplementary Report 1) that are before the Tribunal.[32]

   [32] AB14, ‘Supplementary Report, Khaila Minogue,’ 732–737; AB16, ‘Supplementary Report, Khaila Minogue,’ 740–748.

4. Ms Minogue expresses her support of a funding increase for the Applicant in both reports.  She states she has worked with Mr Ahrens since 2018.

5. In Supplementary Report 1, Ms Minogue states:

   Sebastian has settled into his new home well but has expressed apprehension about living with others. Sebastian has expressed that he enjoys living where he does currently, however there continues to be a moderate to high frequency of incident reporting, despite an array of protective factors in place for him, including 1:1 support, access to favoured activities, regular outings, access to internet and a big property that does not sit within a heavily dense residential area.

6. Ms Minogue analyses incident data over a five-month period in 2024. She states:

   Data analysis of engagement in behaviours of concern that are of risk to [Mr Ahrens]

   and others indicate that while there has been some reduction, the frequency is still

   high in 2024.

7. She notes the reduction in Mr Ahrens’ physical aggression, verbal aggression, and property damage. She adds that self-harm has reduced though threats of self-harm have increased.  She opines Mr Ahrens is ‘now living in a bigger property that is not in a dense residential area, which has been a protective factor for him, to protect his dignity and reduce risk for both him and others.’

   Ms Minogue recommends Mr Ahrens:

   ·     is funded at a 1:1 ratio for support for Supported Independent Living until he can develop skills to self-regulate with the support of his team, AND there is an appropriate compatibility matching process, supported by [Mr Ahrens’] clinical team. This is also supported by [Mr Ahrens’] treating psychiatrist, Dr Charles Wood …

   ·     is funded for programs throughout the week, to build his skills and independence and to provide opportunities for him to try different groups of which are compatible for him …

   ·     continue to receive funding for Behaviour Support, so that he has an updated comprehensive behaviour assessment and behaviour support plan, restrictive practices remain authorised, and a focus remains on fading them over time, staff are able to access training and de-briefing support as well as individual skill development …

   ·     receive increased Support Coordination funding is increased, and that Specialist Support Coordination is included within this funding allowance, due to the complex nature of Sebastian’s needs and current barriers accessing appropriate services …

   ·     is linked with an Occupational Therapist, to work on independent living skills, with a focus on fine motor development and assistive technology where appropriate for him to complete tasks more easily which will reduce stress and promote independence …

   ·     receives on-going psychology funding, which sits separately to behaviour support, to work on addressing trauma related to Sebastian’s experience of living with a disability, which will likely reduce engagement in self-harm and threats of self-harm.

8. Ms Minogue provided a second supplementary report, Supplementary Report 2 in March 2025, a month prior to the hearing.[33] She wrote:

   The author of this plan has supported Mr Ahrens since late 2018. [Mr Ahrens’]

   behavioural presentation has changed significantly in intensity as he entered

   adulthood (post 18 years old). Behaviour Support have engaged Mr Ahrens and his

   team, providing significant support, of which has not led to a marked change in his

   presentation.

   [33] AB16, ‘Supplementary Report, Khaila Minogue,’ 740–748.

9. In terms of what has been trialled with Mr Ahrens and its effectiveness, Ms Minogue stated the following:

   1. 1:1 sessions with Behaviour Support Practitioner, on a fortnightly basis, to implement emotional regulation and distress tolerance skill development, as recommended by SIDMOS and current research into Autism. This has been unsuccessful in changing Sebastian’s behaviour …

   2. Training in the behaviour support plan and de-brief support for staff, which have included face to face and online formal training, and incidental training when visiting Sebastian’s house and/or at team meetings/during phone call conversations.

   3. Changing strategies in [Mr Ahrens’] behaviour support plan, in hopes of decreasing behaviours of concern …This approach has not led to a significant change for [Mr Ahrens’] presentation.

   4. Trialling a house mate at a 1:2 ratio. This led to significant distress for Sebastian and several low – moderate incidents occurred over the short period of the arrangement. Several high-risk incidents also occurred, which involved his housemate, staff and community members being impacted, as well as emergency services involvement. [Mr Ahrens] was then placed in a new accommodation setting, at a ratio of 1:2, and at times, 2:1 where additional support was initiated by a major incident, to ensure [Mr Ahrens’] and others safety. Sebastian has openly stated and has stated since, that he does not want to live with others …

   Sebastian has also openly communicated that he does not identify with having a disability and therefore does not want to be living or accessing groups with this cohort … Placing Sebastian in a 1:2 ratio of support within his home and living environment will place himself and others at significant risk.

   Oral evidence at the hearing

10. Ms Minogue provided oral evidence as Mr Ahrens’ Behavioural Support Practitioner. She has been working with Mr Ahrens since 2018 and has authored several of the Behaviour Support Plans before the Tribunal.

11. Ms Minogue stated she provides guidance and training to the Support Worker (SW) staff that work with Mr Ahrens. This is corroborated by the incident reports in evidence and several incident reports indicate that Ms Minogue “needs to be contacted” as an action item after the incidents. She presented as confident.

12. Her oral evidence showed a lesser familiarity with Mr Ahrens’ behaviour management than her written reports would suggest. For example, with respect to Ms Minogue’s Supplementary Report dated 15 January 2025,[34] Ms Minogue confirmed her authorship of the report but could not recall details of two of the reports by Mr Ahrens’ psychiatrists Dr Charles Austin-Woods and Dr Clint Pistilli, which she reviewed in writing her report.

    [34] AB16, ‘Supplementary Report, Khalia Minogue’, pp 740–748.

13. Further, Ms Minogue was asked on cross-examination about Mr Ahrens’ psychiatry appointments. Ms Minogue could not remember if she had attended any with Mr Ahrens in 2025 but strongly asserted that she definitely attended one last year with Mr Ahrens but could not remember when. She did not at first seem to recall the particularities of the discussion with the psychiatrist Dr Austin-Woods. Later in her oral evidence, Ms Minogue indicated that Dr Austin-Woods was ‘fading out’ the medication of Risperidone used as a chemical restraint/restrictive practice for Mr Ahrens, but similarly could not speak to any other details as to why it was being reduced. When asked what her understanding of the purpose of Risperidone has been, she stated that it fits within the restrictive practices framework to manage Mr Ahrens’ behaviours of concern and that she had not been involved in its fading or reduction specifically. She stated that she had received ‘no communication about what that would look like at that time’.

14. As the author and Senior Behaviour Support Practitioner responsible for drafting and implementing Mr Ahrens’ BSP, including his approved restrictive practices, Ms Minogue’s absentmindedness in her oral evidence is striking.

15. Ms Minogue’s vague recall of this event is further problematised by her own record on the Tribunal file of her attendance of Mr Ahrens’ psychiatric appointment, at the end of 2024. In Supplementary Report 2 of 15 January 2025, [35] she described a serious incident that occurred when she accompanied Mr Ahrens to his psychiatry appointment after which emergency services were called in ‘December 202’ (sic). The Tribunal assumes this is meant to read 2024 given this ‘additional point of data’ is supplementary to the surveyed incident reports over the March 2024 – October 2024 period. The report states the author ‘travelled to support Mr Ahrens and his Support Worker at a psychiatry appointment,’[36] and described in some detail how Mr Ahrens’s frustration led to his verbal aggression and refusal to be transported back home, an hour’s drive away, with the Support Worker. Ms Minogue states the ’incident lasted most of the day and into the evening’ and that she ’sat with Mr Ahrens until an alternative staff member arrived to transport him home’.

    [35] AB16, ‘Supplementary Report, Khalia Minogue’, pp 740–748.

    [36] AB16, ‘Supplementary Report, Khalia Minogue’, pp 740–748.

16. The Tribunal finds it odd that the witness did not recall this incident with more clarity, including its purpose, given it is clearly described in her most recent report that she provided oral evidence on at the hearing. Instead, Ms Minogue stated at the hearing that she could not comment on the appointment with Dr Woods or relatedly on the fading of Risperidone as a restrictive practice for Mr Ahrens.

17. There was also some inconsistency in Ms Minogue’s oral evidence and the reports on the Tribunal file with respect to Mr Ahrens identification as a person with disability. In Supplementary Report 2, Ms Minogue stated that Mr Ahrens does not identify as a person with disability and ‘therefore does not want to be living or accessing groups with this cohort’, as an argument against 1:2 ratio of SIL. However, at the hearing, Ms Minogue stated how Mr Ahrens had attended a Disability Dating Night, and wanted to attend again, due to his expressed intention in developing intimate relationships.

18. For these reasons, the Tribunal has granted less weight to Ms Minogue’s evidence.

    Mr Vince Umali, Occupational Therapist

19. Mr Umali assessed Mr Ahrens at his home in Falls Creek and provided two reports to the Tribunal dated 23 January 2024[37] and 26 March 2025.[38] Mr Umali’s reports in relation to Mr Ahrens can be summarised as follows.

    [37] T12, ‘Report of Vince Umali (Occupational Therapist)’, pp 252–271.

    [38] H3, ‘Report of Vine Umali (Occupational Therapist), pp 901–929. (sic)

20. Mr Umali considered all of Mr Ahrens’ psychiatric and physical disabilities in the assessment.

    ·Mr Umali listed Mr Ahrens’ formal supports, which include:[39]

    ·General Practitioner: Dr Fen (Worrigee Medical Centre)

    ·Psychiatrist: Dr Charles Austin-Woods (New Perceptions, Kiama)

    ·Behavioural Support Practitioner: Khaila Minogue (The Disability Trust)

    ·Personal Training: MickPhyit Wholistic Fitness Nowra

    ·Occupational Therapist: Vince Umali (IOH Health)

    ·Support Co-Ordinator (Level 3): Joel Rivers (Trusted Support Coordination)

    ·Support Co-Ordinator (Level 2): Jo Carter (The Flagstaff Group)

    ·Plan Manager: Plan Partners

    ·Care Support Workers.

    [39] H3, ‘Report of Vine Umali (Occupational Therapist), pp 901–929. (sic)

21. In his analysis, Mr Umali found that Mr Ahrens has been assessed as having extreme functional impairment in the domains of cognition, self-care, social interaction, self-management, and participation. Along with moderate deficits in mobility.

22. Mr Umali recommended that Mr Ahrens requires the following capacity building and other supports:

    ·Ongoing assistance from an occupational therapist

    ·Psychology

    ·Speech pathology

    ·Exercise Physiology/Personal Training

    ·Behavioural Support Therapy

    ·Ongoing support coordination

    ·Ongoing plan management.

23. Mr Umali recommended that Mr Ahrens requires the following core supports: 

    ·Core supports: Mr Ahrens is currently supported at 1:1 ratio for 24 hours per day, 7 days per week.

    oMr Umali stated: ‘If these care hours were not to be allotted, Sebastian may be at risk of deterioration in function and health. This may also result in escalation of behaviours of concerns further imposing risk for other in the community and himself.’

    ·Community access: Mr Ahrens currently receives up to 6 support hours per day for community access through an external provider to assist with community access, reducing carer burnout, and increasing their participation in leisure activities.

    ·Transport: ongoing transport funding to ensure that Mr Ahrens can engage in social and community activities with support workers.

    ·Daily adaptive aids: that a low-risk equipment budget of $1500 is allocated to provide an opportunity for the prescription of everyday adaptive aids to increase safety in the home, promote participation and independence with daily function. (For example, shower stool, diaries, white board).

24. Mr Umali stated, ‘Based on outcome of the assessment Mr Ahrens presented with an ability to learn new skills and thus, capacity building intervention … is recommended to be able to increase their functional capacity in the areas of care tasks such as showering and grooming, domestic tasks such as cleaning, laundry, and meal preparation’.[40]

    [40] H3, ‘Report of Vine Umali (Occupational Therapist), pp 901–929. (sic) at p 26.

25. Mr Umali provided oral evidence at the hearing. His evidence aligned with his written reports, and I am satisfied that his evidence was honest and truthful.

26. Mr Umali gave oral evidence at the hearing that he met with the Applicant on five occasions since 2023 and that his role was to focus on Mr Ahrens’ fine motor skills development. He gave evidence that he had built a good rapport with Mr Ahrens. He stated for example that he used Mr Ahrens’ love of cars and their shared interest in dinosaurs as a talking point. Mr Umali gave oral evidence that, based on the sessions he had with Mr Ahrens, the Applicant presented with the ability to learn new skills. He stated that it was on this basis that he thought he could engage with some of the therapies he used such as theraputty to improve Mr Ahrens’ skills in some areas, particularly Mr Ahrens’ fine-motor skills.

27. Mr Umali stated that Mr Ahrens had not had a violent outburst with him in any of their interactions. Mr Umali recounted examples of building rapport with Mr Ahrens.

    Dr Charles Austin-Woods, Psychiatrist

28. Dr Austin-Woods first assessed Mr Ahrens in May 2020 after a referral and saw him on multiple occasions over the 2020-24 period. 

29. He wrote in a letter dated 2 August 2023 that Mr Ahrens:

    ·is on medication for several concerns including his violent behaviour toward himself and others

    ·This medication is not a complete solution and cannot control his violent behaviours, rather only assist. It does not mean he is able to live with others.[41]

    ·Dr Austin-Woods stated he has ‘grave concerns about another person's safety if he is placed with another person’ and that Mr Ahrens ‘has a history of hurting others to the point where police have been called numerous times.’

    [41] T5, ‘Letter, Dr Charles Austin-Woods (Psychiatrist)’, p 75.

30. Mr Ahrens relies on this report.

    Dr Adam Vujic, Clinical Neuropsychologist

31. Mr Ahrens relies on a report from Dr Vujic dated 17 January 2025.[42]

    [42] AB17, ‘Assessment Report, Dr Vujic’, pp 749–762.

32. Neuropsychologist Dr Vujic recommended 24/7 1:1 support to assist Mr Ahrens to access and apply helpful mood regulation strategies. He recommended as follows:

    ·High support needs: Due to the combination of ASD (Level 3), IDD (Mild severity), and ADHD (Mild severity), Mr Ahrens will require 24/7 one-on-one support to reduce the risk of harm to himself and others. He will likely require active overnight supports given he frequently awakes in the night and can remain awake for extended periods.

    ·Activities of daily living: Due to his cognitive, social, and functional impairments, Mr Ahrens requires one-on-one assistance with a broad range of activities of daily living, including:

    oMedication management (e.g. organising and prompting)

    oFinancial management (e.g. buying items, managing day to day expenses, bills, budgeting)

    oPlanning and organising his weekly schedule, including shopping and appointments

    oTransport to and from appointments, and any activities away from home

    oDomestic assistance (e.g., cleaning, washing up, vacuuming)

    oInitiating and concluding activities at the scheduled times

    oReading and completing any forms or documents

    oAccess to the community and leisure activities, and support interacting in social settings.

    ·A multidisciplinary approach

    ·Brain imaging

    ·Mood regulation strategies

    ·Baseline assessment: Dr Vujic suggested that his report can be considered a baseline of Mr Ahrens’ neuropsychological function.

    Dr Clint Pistilli, Psychiatrist, Complex Case Consultation, NSW Health 

1. On 16 June 2021 Dr Pistilli along with a team comprised of Dr David Thompson (CNC), Ms Emmy Yiannopoulos (Clinical Psychologist), and Dr Maryssa Portelli (Psychiatry Advanced Trainee) at Concord Hospital provided a complex care assessment of Mr Ahrens and provided a report (Pistilli Report).

2. At the time Mr Ahrens was an inpatient at the Shellharbour Hospital, Mirrabook Acute Mental Health Unit. He was admitted on 18 May 2021 after presenting to the Emergency Department five days earlier with escalating aggression towards his carers and voicing thoughts of self-harm.

3. The inpatient treating team comprised of Dr Tadeusz Tietze, Consultant Psychiatrist Shellharbour Hospital, Dr Princess Rukasha, Psychiatry Trainee, Shellharbour Hospital, Ms Haylee Sarris, Disability Inclusion Manger, Care South, Care South Accommodation workers: Mr Peter Johnston (Team leader), Ms Sam Bell (SIL operation manager), Mr David Ellerington (Key worker), Ms Khaila Minogue, Behaviour Support Practitioner, The Disability Trust and Ms Tracey Smith, foster mother. According to the report, the team sought assistance for Mr Ahrens’ safe discharge planning and recommendations to support his behaviours of concern once back in the community.

4. The report provides a detailed background and mental health history of Mr Ahrens. The report offers the following ‘Formulation’ concerning the history provided. It describes Mr Ahrens’ history as:

   one of escalating emotional dysregulation and behavioural outbursts coinciding with a police incident at his home six weeks prior, with some associated trauma-like symptoms developing after this (flash-backs etc). This recent escalation is on a background of longstanding similar problems with emotional dysregulation and behavioural outburst since the early adolescent period, as well as periods of depression requiring medication and psychological intervention.

   We feel there are several underlying processes converging that impact on Mr Ahrens’ current and long-standing emotional difficulties. The process of recognising, regulating and expressing one’s own emotions can all be impacted on by the presence of an Autism Spectrum condition, as well as a history of developmental trauma. Mr Ahrens has both risk factors and arguably a significant history of complex trauma (both early childhood, throughout his schooling experience and more recently with the separation from his family). Mr Ahrens’ Austism spectrum condition as well as his intellectual disability also impacts on his ability to understand, interpret, and read the social and emotional cues of others, further exacerbating his insecurities around attachments and perception of abandonment.

   …

   Mr Ahrens is at high risk of misadventure and suicide in the short to medium term, whilst his mental state and supports need optimisation. He would be benefit from an urgent increase in his NDIS funding to fill the gaps in his supports and access urgent therapies. He would benefit from a streamlined pathway and collaborative approach to crisis intervention with the local mental health services.[43]

   [43] T1B, ‘Complex Case Consultation, NSW Health – Clint Pistilli (Psychiatrist) et al’, pp 7–8.

5. The Report then makes the following recommendations for ‘Service and Support Planning’:

   ·     There are many strengths in the current support arrangements for Mr Ahrens. This includes a positive attachment to many of his support workers and in turn his workers now having familiarity with his unique support needs.

   ·     As a priority consideration should be given to ensure his accommodation does not breakdown. There is a risk of carer burnout and staff turnover with the continual challenges to supporting him. Avoidance of this will be important to ensure consistency and continuity of his care …

   ·     We would advocate for an urgent expedition of Mr Ahrens’ NDIS funding review. It is highlighted that he requires increased funding to access therapies, including specialist level behavioural support, and increased opportunities to participate and access the community, engage in social programs, and meaningful day to day activities to reduce boredom or improve his sense of self-worth. (Emphasis in original)

   ·     Current reports of aggressive and assaultive behaviour towards staff occurring 2-3 times a week indicates the need for 2:1 staffing to provide a safer and sustainable workplace which is better able to meet his needs.

   ·     ‘Our experience is that individuals with very similar high risk behaviours of concern require in the order of 100 hours of behaviour support a year. This is to ensure there time to develop and review the behaviour support plan. (sic)

   ·     …

   ·     Suggest collaboration between the service provider and the community mental health team, and local emergency department to develop an agreed pathway and escalation plan for accessing health services in the event of a crisis. This should be detailed into a Hospital Management Plan that both service providers and health services have ‘on hand’ so that there is consistency in the intervention decisions being made at the time of crisis.

6. Mr Ahrens relies on this report.[44]

   [44] T1B, ‘Complex Case Consultation, NSW Health – Clint Pistilli (Psychiatrist) et al’.

   Incident Reports

7. Mr Ahrens relies on several incident reports spanning 2021 to March 2025.[45]

   [45] T1A, ‘Incident Report 29.03.2021’, pp 15–17; T17, ‘Incident Reports, Various Authors’, pp 323–382; AB7 – Summary of Incident Reports and Incident Reports’, pp 589–691; H5, ‘Incident Reports’, pp 1006–1029.

8. The Care South incident report of 29 March 2021,[46] details how a support worker was threatened by Mr Ahrens with a knife and had his personal vehicle damaged. Two police vehicles were called as was the ambulance. A police offer is reported to have drawn his weapon in response to Mr Ahrens walking towards the police with the knife. A conversation occurred between the affected support worker and the ambulance officers about Mr Ahrens’ ‘history with Ambulance services, and if it was likely that he would be leaving with them.’ The report relates that ‘Despite encouragement from Police, Paramedics and Team Leader [Mr Ahrens] continued to refuse to access his PRN’.

   [46] T1A, ‘Incident Report 29.03.2021’, pp 15–17.

9. An undated summary of these reports spanning 2020 to 2024 is before the Tribunal. It shows examples of low to high severity incidents including the following outcomes:[47]

   ·Chemical restraints (PRN) administered on most occasions

   ·The NDIS Commission notified of reportable incident.

   ·Police and ambulance services are often called, as detailed across all the incident reports.

   [47] AB7, ‘7 Summary of Incident Reports and Incident Reports’, pp 589–691.

   Mr John Chan-Sau, Care Group Community Services

10. Mr Ahrens relies on a letter provided by Mr Chan-Sau (Care Group Letter).[48]  

    [48] AB20, ‘Email, John Chan-Sau, Care Group Community Services’, pp 863–890.

11. The letter states that Care Group will not be able to continue supports for Mr Ahrens as at 11 March 2025 and will ‘move on to hospital admission’.

    Mr Joel Rivers, Specialist Support Coordinator

12. Mr Ahrens relies on an undated letter from Mr Rivers from Trusted Support Coordination, which has provided support for Mr Ahrens since 2018.[49]

    [49] AB6, ‘Letter from Joel Rivers, Trusted Support Coordination’, pp 587–588.

13. Rivers’ letter noted the following:

    ·Care South letter of cessation of supports was received 5 May 2023, stating it will no longer be able to provide support to Mr Ahrens at a 1:2 ratio due to his behaviours of concern

    ·Care South had attempted to support Mr Ahrens to live with another resident and this ended with violence between the participants

    ·Mr Ahrens moved into Supported Independent Living with Care Group on 12 February 2024 when Care South provided the letter of cessation, it along with Flagstaff Support Coordination enquired with multiple providers and received the following responses:

    oSunnyfield would not accept Mr Ahrens at a 1:2 ratio due to previous incidents in STA where they required 2:1 ratio (July 2023)

    oAruma would only support Mr Ahrens in Robust SDA and 1:1 due to supporting him previously in a group setting and Mr Ahrens not being able to be supported along with others (6 September 2023)

    oOne Door do not have a suitable match to provide 1:2 support due to behaviours of concern (14 September 2023)

    oCram Foundation would not support Mr Ahrens due to behaviours of concern and suitability with other clients at a 1:2 ratio (20 September 2023)

    oTDT did not have suitable options in the area (29 September 2023)

    oSoteria would not support at a 1:2 ratio due to behaviours of concern (20 October 2023)

    oCarvin and Slavin would only take Mr Ahrens if he had Robust SDA (14 December 2023)

    ·The Department of Housing also declined due to level of support required for Mr Ahrens.

    ·Care Group cannot continue to support Mr Ahrens at a 1:2 ratio due to his support needs

    ·Care Group’s experience in providing care for Mr Ahrens and clinical evidence confirms that Mr Ahrens requires 1:1 support in SIL, without which it is likely Mr Ahrens will have to find another property

    ·‘The imminent risk of harm or even death to [Mr Ahrens], somebody in the community or his support staff, needs to be an ongoing consideration when assessing his funded support requirements’.

    CONSIDERATION

14. The Tribunal’s task is to determine whether the following support is reasonable and necessary pursuant to s 34 of the NDIS Act, having regard to the NDIS Rules and Operational Guidelines:

    (1) Increased Core Support – Supported Independent Living (SIL) at 1:1 ratio, 24 hours per day, 7 days per week with active overnight care.

15. Even if the criteria in section 34 are met, the Tribunal will need to be satisfied that the proposed supports accommodate the Applicant’s particular impairments and assist Mr Ahrens to be a participating member of the Australian community, based on the values set out in the objects and guiding principles of the NDIS Act.

16. I am satisfied that the Applicant meets s 34(1)(aa) that the support requested is necessary to address Mr Ahrens’ needs arising from an impairment in relation to which he meets the disability requirements.

17. I am also satisfied that the Applicant meets s 34(1)(a) that the support will assist Mr Ahrens to pursue the goals, objectives and aspirations included in his statement of goals and aspirations.

    Section 34(1)(b) – Support will assist Mr Ahrens to undertake activities

18. The Agency contends that the support model sought by the Applicant would, by virtue of its operation, do two things:

    (i)increase Mr Ahrens’ reliance on the 24/7 availability of support workers to manage his problematic behaviours, and

    (ii)prevent Mr Ahrens from building capacity to participate in activities of daily living and social, economic and community participation with greater independence over the long term.

19. The Applicant asserts that his current funding does not assist him to undertake activities.

20. The Applicant relies on the recommendations by experts for 24/7 1:1 support to assist the Applicant with activities of daily living, accessing the community, and implementing behaviour management strategies. These include the reports by Behaviour Support Practitioner Ms Minogue, Occupational Therapist Mr Umali, and Neuropsychologist Dr Vujic.

21. Ms Minogue’s report stated that Mr Ahrens lacks the capacity to organise, plan, pay attention and self-regulate and ‘when he is highly distressed, he is unable to regulate on his own and engages in behaviours of concern [sic] at a higher level, requiring emergency services intervention’.[50]

    [50] AB19, ‘Behaviour Assessment and Positive Behaviour Support Plan’, pp 775–848.

22. The Applicant also draws on the evidence of the significant reduction in the number of interactions with police since 2020, and a decrease in the number of incidents involving physical aggression since 2021–2022. As outlined in the Applicant’s Statement of Facts, Issues, and Contentions (ASOFIC), the Applicant attributes this to Mr Ahrens’ behaviour management strategies being implemented earlier by his support workers.

23. The Applicant also argues that if the Applicant continues to be funded at the current rate, he will not receive adequate support at home leading to an increase in his behaviours of concern. The Applicant states:

    This in turn will lead to more frequent periods of escalation requiring the use of a restrictive practice to prevent him from accessing the community. The Applicant asserts that the 1:1 SIL sought will enable him to access to the community in a safe and supported way. (sic)

24. Pursuant to section 33(f) the Tribunal has had regard to the operation and effectiveness of any previous plans of the participant. There is some evidence that the SIL support being received by the Applicant has been effective and beneficial for him in reducing his behaviours of concern and working towards supporting him in managing his emotions before he is in an escalated state.

25. On the evidence before it, the Tribunal finds that Mr Ahrens’ flexible Social, Economic and Community Participation funds have been depleted in what could be termed a ‘firefighter’ approach to his support – to fund 24/7 1:1 SIL. Mr Ahrens’ support coordinator redeployed his existing flexible Social, Economic and Community Participation funding to provide 24/7 1:1 support worker assistance ultimately to assist Mr Ahrens to manage his extreme behaviours of concern.

26. There is also evidence before the Tribunal that the provision of 24/7 1:1 level of support has resulted in Mr Ahrens undertaking less activities. There is evidence to indicate a narrowing of Mr Ahrens’ window of tolerance towards sharing his space with other people, including his support workers.

27. The Tribunal agrees with the Respondent that though there are ancillary benefits to Mr Ahrens having 24/7 1:1 support worker assistance, this of itself does not render SIL as a suitable or appropriate alternative to mental health supports. Mr Ahrens’ current funding at 1:2 SIL takes into account his need for behavioural support management and there is insufficient evidence before the Tribunal to justify the increase in hours, which are quite significant, from 3 to 21 per day.

28. The Tribunal cannot be satisfied on the current evidence that Mr Ahrens requires the increase to 24/7 1:1 support worker assistance to complete daily activities, including behavioural support management and supervision. The Tribunal has no information before it as to how the support is required during the evening, for example, and to what end it will be used to facilitate activities or otherwise.

29. The Tribunal is not satisfied that on the evidence before it, 24/7 1:1 SIL will assist Mr Ahrens to undertake activities, to facilitate Mr Ahrens’ social participation.

    Section 34(1)(c) and Rule 3.1 – Value for money

30. The Agency contends that without intervention from mainstream providers to address the Applicant’s behaviours of concern, the provision of 24/7 1:1 support worker assistance to manage behaviours of concern does little to advance Mr Ahrens’ independence and functional capacity and cannot be considered value for money relative to the costs of assisting Mr Ahrens to access mainstream mental health supports.

31. The Respondent relies on Neuropsychologist Dr Vujic’s report which states that a multidisciplinary approach that includes regular input from psychology and psychiatry, is required. On the Respondent’s view, then, 1:1 SIL is an alternative to mainstream health supports.

32. The Applicant argues that the current level of support will not achieve the same outcome at a substantially lower cost. It refers to the Care Group Letter of 6 March 2025 advising that Mr Ahrens’ supports would be terminated to support its position. Additionally, the Applicant also refers to the Support Coordinator Mr Rivers’ letter outlining his inability to find a suitable SIL provider at the 1:2 ratio when Mr Ahrens’ former SIL Provider Care South issued its letter of termination.

33. The Tribunal reiterates its finding above, regarding the ‘firefighter’ approach adopted to Mr Ahrens’ support, in its consideration of the Supports Rules that follow.

    Rule 3.1 (a) – Comparable supports would achieve the same outcome at a substantially lower cost

34. The Applicant asserts that applying Rule 3.1(a) access to mainstream mental health supports is not a comparative support to 1:1 support worker assistance.[51] The Applicant argues that the purpose of this support is to assist the Applicant with activities of daily living, accessing the community and implementing behaviour management strategies. It relies on Dr Vujic’s report recommendation for 24/7 1:1 support and states Mr Ahrens:

    Is already accessing services from a Psychologist, a Psychiatrist, an Occupational Therapist and a Behaviour Support Practitioner. He was referred to SIDMHOS June 2021. Access to these services is not, and has never been, a substitute for support worker assistance. [52]

    [51] ASOFIC [78].

    [52] ASOFIC [79].

35. The Tribunal does not agree with this view. Evidence before the Tribunal shows that the support worker assistance has been used in practice as a substitute for other services and that Mr Ahrens has not been receiving the counselling and psychological supports that he requires. 

36. Further, the supports are not comparable in the nature of the professional quality of the services provided. Support workers, and Mr Ahrens’ ‘highly skilled team of supports, who can meet his needs quickly and respond to incidents when they occur’[53] cannot be a substitute for the clinical care that Mr Ahrens requires.

    [53] H2, ‘Supplementary Report 1.

37. The Tribunal is satisfied that under Rule 3.1(a) is met and that comparable supports would achieve the same outcome at a substantially lower cost.

38. Having considered the evidence and the relevant Support Rules and Guidelines, the Tribunal is not satisfied on the evidence before it that the requested increase of support to 24/7 1:1 SIL represents value for money. The costs of the support are not reasonable, relative to both the benefits achieved and the cost of alternative support pursuant to section 34(1)(c).

    Rule 3.1 (b) – Evidence the support will substantially improve life stage outcomes and be of long-term benefit to Mr Ahrens

39. There is some evidence that the daily provision of 24/7 1:1 SIL has been of some short-term benefit to Mr Ahrens. The Tribunal is not satisfied that the evidence suggests the support will substantially improve life stage outcomes in the long term for Mr Ahrens.

40. The Applicant refers to the Applicant’s interactions with police having significantly decreased since moving into long-term SIL with 24/7 1:1 support to advance the argument that Mr Ahrens has ‘already built capacity and is likely to continue to do so if adequately supported. Further, due to the Applicant’s history of trauma with the police, it is to his long-term benefit to receive sufficient assistance to manage his behaviours of concern and build his capacity, which in turn minimises his engagement with emergency services’.[54]

    [54] ASOFIC [75].

41. The Respondent contends that though there may be ancillary benefits to the provision of 24/7 1:1 support, it will not be of long-term benefit to Mr Ahrens.

42. The Tribunal cannot be satisfied on the current evidence, that the provision of 24/7 1:1 support worker assistance will substantially improve life stage outcomes and be of long-term benefit to Mr Ahrens.

43. Considered overall, there is limited probative evidence to support Mr Ahrens’ requested increase from 3 hours per day of 1:1 SIL to 24/7 1:1 supports that also demonstrates the requested supports satisfy the section 34(1)(c) value for money criteria.

    Section 34(1)(d) and Rule 3.2 – Effective and beneficial

44. Rule 3.2 provides that in deciding whether the support will be, or is likely to be, effective and beneficial for Mr Ahrens, having regard to good practice, the Tribunal is to consider the available evidence of the effectiveness of the support for others in like circumstances. This evidence can include the lived experience of the participant or his carers.

1. The Tribunal has evidence before it of Mr Ahrens’ lived experience of 1:1 as compared with 1:2 SIL provision, as provided above. This includes data from the Incident Reports which indicates a reduction in the frequency of incidents involving physical aggression and interactions with police since moving into 24/7 1:1 SIL arrangements.

2. The Tribunal notes that, as per the SIL Operational Guidelines, SIL may include support:

   ·     to action any behaviour support plans

   ·     with supervision, personal safety and security.

3. The Applicant argues that as a matter of practicality, implementation of Mr Ahrens’ approved restrictive practices would not be effective and beneficial in the absence of 1:1 SIL. The Applicant argues:

   For example, the Applicant has an environmental restraint that prevents him from accessing the community when escalated. If the Applicant is not supported 24/7 1:1, there are two options for managing the implementation of this restrictive practice. One, the front gate can remain locked when support workers are not present. This in itself is a seclusion restrictive practice and would unacceptably limit the Applicant’s freedom and independence contrary to the objects of and general principles guiding actions under the NDIS (ss 3, 4) and Rule 5.1(a) of the Supports Rules Two, the gate can be left unlocked when support workers are not present, which risks the Applicant accessing the community while in an escalated state. Neither of these options are effective and beneficial. [55]

   [55] ASOFIC [85].

4. The Applicant contends that if Mr Ahrens’ ‘restrictive practices cannot be effectively implemented, the Applicant is at risk of dysregulating, and while in a deregulated state, it is expected that his capacity to engage in activities of daily living will decrease’.[56]

   [56] ASOFIC [88].

5. The Tribunal has also considered the expert evidence before the Tribunal, under Rule 3. This includes the recommendations for 1:1 support by Dr Vujic and Psychiatrist Dr Austin-Woods. This was also supported by Mr Umali, Occupational Therapist and Behavioural Support Practitioner Ms Minogue. Notably, Psychiatrist Dr Pistilli recommended a higher ratio of SIL support for Mr Ahrens, of 2:1.

6. The Tribunal notes that there is some evidence of the effectiveness of 1:1 support provision being limited without the capacity-building supports that Mr Ahrens requires and that have been recommended by experts, such as Occupational Therapist Mr Umali. 

7. Evidence before the Tribunal shows, for example, that Mr Ahrens is missing his visits to Huskisson Beach and has been asking about counselling. He does not appear to have enjoyed music therapy, but there are other community activities that he clearly misses. For example, Occupational Therapist Mr Umali gave evidence that Mr Ahrens told him that he was not seeing a psychologist and that he would like to. Mr Umali’s report indicates that Mr Ahrens is currently not receiving psychological supports. In his report, Mr Umali recommended referral to a psychologist to ‘address emotional dysregulation associated their psychosocial disability/mental health presentation’ directly related to his NDIS accepted diagnoses. Mr Umali cautioned that without referral, Mr Ahrens, ‘may experience ongoing poor health, limited motivation and or may be at risk of harming self and or others around him including property’.[57]

   [57] H3, ‘Report of Vine Umali (Occupational Therapist) dated 26 March 2025,’ pp 901–929, p 27.

8. The Tribunal agrees with the Respondent that the evidence does not establish that funding 24/7 1:1 support worker assistance is likely to be effective and beneficial for Mr Ahrens and that such a level and model of support is likely to cause harm to the applicant, implementing an overtly restrictive model of support worker assistance that cannot, by its nature, assist Mr Ahrens to build independence.

9. Having considered the evidence and the relevant Support Rules and Guidelines, the Tribunal is not satisfied that 1:1 SIL funding is likely to be effective and beneficial for Mr Ahrens pursuant to section 34(1)(d).

   Section 34(1)(f) – whether the requested support is a NDIS Support

10. There is no dispute between the parties as to Mr Ahrens’ need for SIL to assist him with daily living. It is the increased ratio, which is quite significant, that is contested by the parties.

    Mr Ahrens’ current level of SIL

11. Mr Ahrens is funded for 1:2 SIL. Care Group Community Services have been providing Mr Ahrens with 24/7 1:1 SIL since March 2023.

12. The Tribunal finds that Mr Ahrens’ Social, Economic and Community Participation funding has been used flexibly to provide SIL at this higher ratio. This was confirmed in an email tendered during the hearing by Mr Ahrens’ Specialist Support Coordinator.[58] As a result of this higher level of 1:1 care, Mr Ahrens has depleted his NDIS support budget.

    [58] E3.

13. On 17 March 2025, the Respondent agreed to replenish the Applicant’s plan for six months, which has enabled Mr Ahrens to stay with Care Group Community Services for the duration of the review before the Tribunal.

    NDIS Operational Guidelines – the intended purpose of 1:1 SIL

14. Per Drake v Minister for Immigration and Ethnic Affairs (No 2),[59] the Operational Guidelines as government policy, should be applied unless there is good reason for departure.

    [59] Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

15. The question for the Tribunal is what for purpose 1:1 SIL is being sought and whether this purpose is excluded by the Operational Guidelines.

16. The Respondent contends that the Applicant seeks an increased ratio for SIL, inconsistently with the contents of the SIL Operational Guidelines with respect to the purpose of SIL, not for a support worker to assist with daily living activities or to support independent living.

17. Instead, the Respondent advances the term ‘containment model’ of behavioural therapy as the intended purpose for the increased SIL ratio. The Respondent contends the prevention of Mr Ahrens from engaging in activities that would harm himself or the community is the primary purpose for the requested support.

18. In the Respondent’s contentions, daily tasks are seen to be a valid purpose of SIL, and are currently provided, whereas SIL for the primary purpose of supervision and safety as related to the applicant’s behavioural support needs are excluded.

19. The Respondent relies on two of the reports in evidence:

    ·The BAPBSP written by Ms Minogue dated 13 October 2023 states the Applicant is independent in activities of daily living, including showering, washing hair with prompting, toileting, brushing teeth with prompting, dressing with promoting, eating and drinking.

    ·Neuropsychologist Dr Vujic’s report dated 17 January 2025, which recommends 1:1 support to ‘reduce the risk of harm to himself and others’.

20. The Applicant disputes the Respondent’s characterisation of the model of support currently provided to Mr Ahrens as ‘containment’. The Applicant asserts that the current model is not a ‘containment’ model, citing the letter by Ms Minogue dated 21 March 2025.

    The current model is NOT a containment model as [the Applicant] has:

    ·Ability to leave his home with staff support when he requests. He accesses the community with his staff support each day (which requires significant support planning each day)

    ·Frequent family contact and time spent in the family home

    ·Weekly gym sessions with personal trainer (highly scaffolded with staff)

    ·Visits with friends, in the community and their home.[60]

    [60] ASOFIC p 22.

21. The Applicant argues that the Operational Guideline expressly states that SIL may include support ‘to action any behaviour support plans you have’ and ‘with supervision, personal safety and security’. The Applicant asserts that there is:

    a clear distinction between using SIL for behaviour management which includes the implementation of regulated restrictive practices contained in the behaviour support plan, and actual containment.

    The Applicant’s behaviours of concern are a manifestation of his disability and interfere with his ability to independently engage in activities of daily living. Accordingly, the Applicant asserts that 24/7 1:1 support worker assistance includes the implementation of behaviour support strategies to support him to be independent and to build capacity for behaviour management. [61]

    [61] ASOFIC p 23.

22. The Tribunal accepts that to the extent that support worker assistance is directed at supporting Mr Ahrens to independently engage in activities of daily living and build capacity for behavioural management, they fall within the Operational Guideline. Mr Ahrens is already funded for SIL and the Respondent does not dispute that SIL is a reasonable and necessary support for Mr Ahrens, in line with the Operational Guideline. This is supported by the Internal Review Decision dated 28 June 2024 by the Agency, which states:

    It is also acknowledged that you require assistance with instrumental activities of daily living including medication management, meal preparation, shopping, laundry and cleaning. During the daytime hours it is considered reasonable to continue to fund you 3 hours per day of 1:1 support to assist you in the above areas as well as for management of behaviours.

23. The Tribunal has insufficient evidence before it to make findings on the regularity of Mr Ahrens’ visits with friends (in the community or in their home) or his weekly gym sessions. The Tribunal has heard oral evidence from the Applicant’s Aunt of the reduction in Mr Ahrens’ access to the community, and his social and community participation. The Applicant’s Aunt could not speak to why and assumed that this was not a part of Mr Ahrens’ plan.

24. Further, the SIL Operational Guideline expressly includes the actioning and implementation of behaviour support plans in addition to support for Mr Ahrens with supervision, personal safety and security.

25. The Tribunal finds that the SIL is currently being used to action Mr Ahrens’ behaviour support plans in addition to being used for the purposes of supervision, personal safety and security. Both purposes are expressly included in the Operational Guideline.

    The Supports Rules – whether 24/7 1:1 SIL is a NDIS Support

26. Schedule 1 of the Transitional Rules outlines generally the type of support that is encompassed by specialist behaviour support, daily personal activities and development of daily care and life skills.

27. The Respondent contends that activities of daily living are expressly delineated from behaviour management under Schedule 1 and by this, the legislative intent was that NDIS participants who required intensive behavioural supports would be supported through the NDIS to access general support systems to improve their access to those systems with NDIS supports.

28. The Tribunal agrees with the Respondent that as a result, behavioural management is generally intended to be funded, as the implementation and management of strategies in a behaviour support plan and are not expressly for the ongoing management of extreme behaviours of concern through support worker assistance.[62]

    [62] ASOFIC [34].

29. The Tribunal notes the regularity with which police are called out to support Mr Ahrens when he is highly elevated and exhibiting behaviours of concern. This includes, for example, police having to draw their weapons in response to Mr Ahrens walking towards them with a knife with which he was threatening staff. Added to this is the attendance of Ambulance services. There are multiple incident reports where a minimum of two police officers, and on occasion four police officers, are called to de-escalate Mr Ahrens when he is in an elevated state. Support Worker incident reports describe how multiple police officers work with Mr Ahrens, to de-escalate the situation and encourage him to take his PRN medication.

30. Notably, this has also occurred when Mr Ahrens has been receiving 24/7 1:1 support worker assistance. For example, three police and an ambulance were called on 20 August 2024 and on 7 August 2024 two police were called to Mr Ahrens’ home and tried to diffuse the situation.

31. On the evidence before it, the Tribunal finds that 24/7 1:1 SIL is primarily being sought to keep others and the community safe when Mr Ahrens is in an elevated state. Schedule 2 of the NDIS Transitional Rules make it clear that the NDIS will not be responsible for supports whose primary purpose is to provide ‘secure accommodation facilities where the purpose of the accommodation is to safeguard the community or prevent re-offending, including secure mental health facilities.[63]

    [63] NDIS Transitional Rules 2024 (Cth), sch 2, item 13.

32. The Tribunal finds that the primary purpose of the requested increase of 24/7 support worker assistance to 1:1 ratio is to continue to provide accommodation for Mr Ahrens to safeguard the community, including family members and support workers.

33. Therefore, the Applicant does not meet s 34(1)(f) for the reasons above.

34. In any event and putting aside my reasons in relation to s 34(1) above, I consider that the support cannot be funded as it is likely to cause harm to Mr Ahrens and therefore falls within the confines of r 5.1(a) of the Supports Rules.

    Rule 5.1(a) – likely to cause harm to the participant or pose a risk to others

35. Part 5 of the Supports Rules provide the General Criteria for supports.

36. Rule 5.1(a) of the Supports Rules provides that a support will not be provided if it is likely to cause harm to the participant or pose a risk to others.

37. The Applicant’s Aunt, who Mr Ahrens calls ‘mum’, herself a trained support worker, gave evidence about the incident leading to Mr Ahrens having to leave the family home. She provided evidence that there was a rapid regression transitioning from a highly structured schooling life after Mr Ahrens finished high school in around October 2018. The Applicant’s Aunt stated Mr Ahrens’ behaviours of concern were exacerbated by Covid-19 lockdown when the situation in the family home became more tense with Mr Ahrens gaming more often. This appears to have reached a tipping point when Mr Ahrens became violent towards his sister and her two children, both under the age of 2.

38. The Applicant’s Aunt gave evidence about how she feared for the safety of her grandchildren, who she had to take out of the house. She told me how she feared for her daughter’s safety but also for Mr Ahrens who she said could no longer continue to live in the family home. She feared for what Mr Ahrens could do to himself or to others when in a heightened state and unable to manage his behavioural responses. The Applicant’s Aunt explained how during the time he lived with her, she was so afraid that at times she would wait on the front porch for Mr Ahrens to fall asleep before going back into the home.

39. The incident Reports before the Tribunal from 2020-2025 demonstrate critical incidents where first responders, including the police and the ambulance services, have been called. The Incident Reports show instances where support workers are afraid when Mr Ahrens loses control and tries to harm himself and others, including his support workers. This has continued to occur with 24/7 1:1 SIL. Evidence shows physical altercations with support workers, who struggle to protect themselves and try to push Mr Ahrens off them, for example, when Mr Ahrens tries to put his hands around their necks.

40. The Applicant contends that the outcome of the support model provided by the Respondent will cause harm to Mr Ahrens. The Applicant argues that the evidence shows Mr Ahrens’ ‘behaviours of concern increase during periods of transition and uncertainty, leading to increased interactions with police and emergency services. The Applicant asserts that this is not value for money and places the Applicant and members of the community at a greater risk of harm.

41. The Respondent contends that funding 24/7 1:1 support worker assistance is likely to cause harm to the Applicant, by implementing an overtly restrictive model of support worker assistance that cannot assist Mr Ahrens to build independence.

42. The Tribunal finds that in limiting Mr Ahrens’ capacity to build independence, and in tasking support workers with the management of extreme behaviours of concern, supports which should be provided through the mental health system, the support will cause harm to the Applicant in the long term.

    Whether supports appropriately funded or provided through the NDIS

43. Now that 24/7 1:1 SIL has been found not to be reasonable and necessary under section 34 of the NDIS Act, the Tribunal must also be positively satisfied, that the 1:1 ratio for 24/7 SIL, are more appropriately funded through the NDIS rather than other service systems.

44. The National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Miscellaneous Rules) provide that in addition to the considerations under section 34(1) of the NDIS Act, the decision maker must also be satisfied that the support is most appropriately funded or provided through the National Disability Insurance Scheme and not another system. The Amending Act replaced the former s 34(1)(f). The same obligation now appears instead at section 7 of the Miscellaneous Rules. The CEO must also be satisfied that:

    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:

    (a) as part of a universal service obligation; or

    (b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

45. The Supports Rules provide:

    Supports appropriately funded or provided through the NDIS

    3.5 Schedule 1 sets out matters for the CEO to have regard to in considering whether

    supports are most appropriately funded or provided through the NDIS, rather than

    through other service systems (service systems is defined in paragraph 6.4).

    3.6 The matters to have regard to are set out under the following headings in the

    Schedule:

    (a) Health (excluding mental health);

    (b) Mental health;

    (c) Child protection and family support;

    (d) Early childhood development;

    (e) School education;

    (f) Higher education and vocational education and training;

    (g) Employment;

    (h) Housing and community infrastructure;

    (i) Transport;

    (j) Justice.

46. Rule 7 of the Supports Rules provides:

    7.1 The Act limits the supports that can be provided or funded under the NDIS to supports that are not more appropriately funded or provided through other service systems, for example as part of a universal services obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

    7.2 The considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by the NDIS or another service system.

    7.3 For the avoidance of doubt, while this Schedule sets out considerations relevant to whether a support should be considered to be more appropriately provided or funded through another service system, it does not purport to impose any obligations on another service system to fund or provide particular supports.

47. With respect to mental health, Rules 7.6 and 7.7 provide:

    7.6 The NDIS will be responsible for supports that are not clinical in nature and that focus on a person’s functional ability, including supports that enable a person with a mental illness or psychiatric condition to undertake activities of daily living and participate in the community and social and economic life.

    7.7 The NDIS will not be responsible for:

    (a) supports related to mental health that are clinical in nature, including acute ambulatory and continuing care, rehabilitation/recovery; or

    (b) early intervention supports related to mental health that are clinical in nature, including supports that are clinical in nature and that are for child and adolescent developmental needs; or

    (c) any residential care where the primary purpose is for inpatient treatment or clinical rehabilitation, or where the services model primarily employs clinical staff; or

    (d) supports relating to a co-morbidity with a psychiatric condition where the comorbidity is clearly the responsibility of another service system (eg treatment for a drug or alcohol issue).

1. In its SOFIC, the Respondent contended:

   The Transitional Rules clearly outline that the NDIS will not be responsible for supports related to mental health that are clinical in nature, including acute, ambulatory or continuing care or rehabilitation, or residential care where the primary purpose is for inpatient or outpatient treatment or clinical rehabilitation.

   The NDIS Transitional Rules also make clear the NDIS will not be responsible for supports whose primary purpose is to provide (emphasis added) ‘secure accommodation facilities where the purpose of this accommodation is to safeguard the community or prevent reoffending, including secure mental health facilities’.

   Although the Applicant’s contention is that support worker assistance is directly related to the Applicant’s disabilities, the 24/7 1:1 model of support … is more appropriately characterised as a ‘containment model’, the primary aim of which is to prevent the Applicant from independently accessing the community or causing harm to himself or others.[64]

   [64] AB23, ‘Respondent Statement of Facts, Issues and Contentions’ (RSOFIC), pp 891–900.

2. The Respondent contended that the Tribunal could not be satisfied, on the current evidence, that the Applicant requires an increase to 24/7 1:1 support worker assistance to complete daily activities,[65] which includes actioning behaviour support plans, per the Operational Guidelines.

   [65] AB23, RSOFIC [24].

3. I agree with this view. Having regard to the clinical purpose of the supports requested and the needto safeguard the community from harm, I am not satisfied on the evidence before me that the requested significant increase of support worker assistance at a 24/7 1:1 ratio is appropriately funded or provided through the NDIS.

   CONCLUSION

4. For the reasons given above, the Tribunal is not positively satisfied of each of the legislative criteria under section 34 of the NDIS Act. Therefore, the provision of 24/7 1:1 SIL is not a reasonable and necessary support.

5. Pursuant to section 105 of the ART Act, the Tribunal affirms the decision under review.