Allen and CEO, National Disability Insurance Agency (NDIS) - [2025] ARTA 1359

Allen and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1359 (15 August 2025)
Applicant/s:  Wade Allen
Respondent:  CEO, National Disability Insurance Agency
Tribunal Number:                2023/5514

Tribunal:Senior Member P French
Place:Sydney
Date:15 August 2025

Decision:(1)Pursuant to s 105(a) of the Administrative Review Tribunal Act 2024 (Cth) the decision of the Respondent dated 9 August 2024, as varied by the decision of the Respondent dated 10 August 2025 is affirmed.
(2)Pursuant to paragraph 101(1)(a) of the Administrative Review Tribunal Act 2024 (Cth) the application insofar as it concerns the internal review decision dated 12 July 2023, and the decision to approve a further Statement of Participant Supports dated 7 May 2024 is dismissed on the basis that these decisions are no longer of any substance.

.

.......................[SGD].................................................
Senior Member P French
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – reviewable decision of CEO – decision to approve a Statement of Participant Supports – whether Applicant is eligible to receive support for specialist disability accommodation – whether participant has an extreme functional impairment – whether participant meets the specialist disability accommodation needs requirement – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 25, 37, 38AA
Administrative Review Tribunal Act 2024 (Cth), s 12, 101, 105
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth), Schedule 16, Item 24
National Disability Insurance Scheme Act 2013 (Cth) s 3, 4, 5, 17A, 31, 33, 34, 35, 47A, 99, 100, 103, 209
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Act 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth): r 7
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth), rr 3.1, 3.2, 3.3
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth): rr 5.4, 5.5, 5.6, 5.7, 5.8
National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth): r, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21
Cases
Beezley v Repatriation Commission (2015) 150 ALD 111; [2015] FCAFC 165
Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607
Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; 24 ALR 577
DQKZ and National Disability Insurance Agency [2024] AATA 2276
HPSC and National Disability Insurance Agency [2021] AATA 727
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) 2 ALD 634
SAS Trustee Corporation v Miles (2018) 265 CLR 137
Shi v Migration Agent’s Registration Authority (2008) 235 CLR 286
National Disability Insurance Agency v Davis [2022] FCA 1002
Secondary Materials
National Disability Insurance Agency, Specialist disability accommodation (operational guideline), 7 April 2025.
World Health Organisation (2011), International Classification of Functioning, Disability and Health, Geneva
World Health Organisation (2002), Towards a Common Language for Disability, Functioning and Health, ICF, Geneva
Ustun, T B, Kostanjsek N, Chatterji S and Rehm, J, (eds) (2010), Measuring Health and Disability: Manual for WHO Disability Assessment Schedule, World Health Organisation
Statement of Reasons

This is an application by Wade Allen (the Applicant) pursuant to s 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act) for independent review of a decision of the delegate of the Chief Executive Officer of the National Disability Insurance Agency (CEO, NDIA, the Agency) made under s 100(6) of the Act on 12 July 2023 which was to affirm an original decision of another delegate of the CEO made on 21 April 2023 to approve a Statement of Participant Supports (SoPS) for the Applicant under s 33(2) of the Act that did not include two supports requested by the Applicant, being support worker assistance for social and community participation, and support for specialist disability accommodation (SDA). The Tribunal has jurisdiction under s 12 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) to review this decision because it is designated a reviewable decision in the Table to s 99(1)(Item 4) of the NDIS Act.[1] This application was made to the Tribunal on 28 July 2023.
[1] This proceeding commenced before the Administrative Appeals Tribunal (AAT) in accordance with the power conferred by s 25 of the Administrative Appeals Tribunal Act 1975 (Cth). The AAT was abolished and replaced by the ART with effect from 14 October 2024. By operation of Item 24 in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) any proceeding which was not determined by 14 October 2024 continues in the ART and is to be determined by the application of the provisions of the ART Act.
While this application has been before the Tribunal, pursuant to s 33(2) of the Act a delegate of the CEO approved a new Participant Plan for the Applicant containing a new SoPS by a decision made on 7 May 2024. Then on 9 August 2024, again pursuant to s 33(2) of the Act, a delegate of the CEO approved a further Participant Plan for the Applicant which contained a new SoPS that included his request for support worker assistance for social and community participation. Then on 10 August 2025 a delegate of the CEO varied that Plan pursuant to s 47A of the Act to set a new review date for the Plan and the replenish funding available for previously approved supports for a further period of 12 months.
By operation of s 103(2) of the Act, this application is also taken to be an application for review of each of those subsequent decisions to the internal review decision. However, it is the decision to approve the SoPS dated 9 August 2024, as varied by the decision dated 8 August 2025, that is the current operative plan for the purposes of this review. No claim for ‘retrospective’ funding of supports during the earlier SoPS periods is made or is maintainable. The application insofar as it concerns the internal review decision, and the decision made on 7 May 2024 is therefore no longer of any substance.
The current operative SOPS has left one support requested by the Applicant in dispute, which is a request for support for SDA. After carefully considering this request on the material before me I am satisfied that the Applicant is not eligible to receive support for SDA. I therefore cannot consider SDA for inclusion in his SoPS. The current operative decision is therefore affirmed.
To be eligible for support for SDA a participant must have either an “extreme functional impairment” or “very high support needs”, and they must also meet the “SDA needs requirement” as these criteria are each prescribed by the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth) (the SDA Rules). In this case I am satisfied that the Applicant has an extreme functional impairment, but I cannot be satisfied that he meets the SDA needs requirement.
The Applicant’s request for support for SDA is motivated by his desire to move to Brisbane so that he can better parent his son who lives there with his ex-partner. Any reasonable person would want the Applicant to be able to achieve that outcome. But it is an outcome that is unrelated to his level of functional impairment and impairment related need. SDA is intended for a small specific category of participants for whom other accommodation options are not viable due to their level of impairment and specific impairment related needs. The Applicant is not a person who falls into this category. He is capable of functioning successfully in an accessible ‘standard’ dwelling, including in relation to providing care and supervision of his son.
I accept that the Applicant faces real challenges in moving to Brisbane because he is ineligible for social housing in Queensland. But limitations in other government programs do not form part of the SDA needs requirement. The NDIS is not a panacea designed overcome limitations in general systems of support.
The Tribunal’s role
The Tribunal’s role in conducting this review has been to reach its own conclusion as to whether the delegate’s decision not to approve SDA for inclusion in the Applicant’s SoPS is the correct or preferable decision.[2] That has involved the independent re-assessment of the evidence that was before the delegate when they made their decision as well as the assessment of the additional documentary and witness evidence that was before the Tribunal at the time of the hearing.[3]
[2] Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; 24 ALR 577 (Drake) at 589
[3] Shi v Migration Agent’s Registration Authority (2008) 235 CLR 286 at [45] – [46]
Relevantly to the circumstances of this case, Rule 11 of the SDA Rules provides that a participant will be eligible for SDA if the CEO is “satisfied” of the matters set out in that Rule. In this independent review, the Tribunal must also be so satisfied. This is a state of positive satisfaction or relative certainty which must be attained in relation to each criterion specifically.[4] Therefore, while neither the Applicant nor the Agency bear any formal onus of proof, the Applicant does bear the practical onus of placing before the Tribunal, or pointing to material before the Tribunal, that can persuade it that he has either an extreme functional impairment or very high support needs (or both) and that he meet the SDA needs requirement, and if so, that support for SDA is otherwise reasonable and necessary for him.[5]
[4] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [60]
[5] Beezley v Repatriation Commission [2015] FCAFC 165 (2015); 150 ALD 11 at [68]; HPSC and National Disability Insurance Agency [2021] AATA 727 at [85]
Evidence and hearing
The following documentary material is before me:
i.The documents filed by the CEO in accordance with the obligations imposed by s 37 and s 38AA of the AAT Act (T-Documents),
ii.Hearing Tender Bundle prepared by the CEO in consultation with the Applicant, filed on 17 September 2024,
iii.CEO’s Statement of Facts, Issues and Contentions filed 12 July 2024,
iv.CEO’s Addendum to her Statement of Facts, Issues and Contentions, dated 4 December 2024.
The principal hearing was conducted on 26 and 27 September 2024 by video.
The Applicant gave evidence in his own cause under affirmation. He called as a witness Ms G Matheson, Occupational Therapist, who gave oral evidence under affirmation
The Agency called as a witness an independent expert, Mr T Cleary, Occupational Therapist, who gave oral evidence under affirmation.
On 22 August 2024 the NDIS Act (the principal Act) was amended by the measures contained in the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth) (the Getting the NDIS Back on Track amendments). Certain of those amendments came into effect on 3 October 2024 and are expressed to apply to a SoPS approved or varied after that date irrespective of whether a participant’s Participant Plan came into effect before, or on, or after the commencement of these amendments. New Rules developed pursuant to the amendments to the principal Act also came into effect on 3 October 2024 and are expressed to apply to a SoPS approved or varied from 3 October 2024. The coming into force of the 3 October 2024 amendments was not anticipated at the time of the principal hearing.
To enable the parties the opportunity to respond to the implications of the Getting the NDIS Back on Track legislative changes for this review I reopened the hearing on 18 November 2025 and called for further submissions, indicating to the parties that I considered that I could deal with those submissions on the papers, unless either party contended that a further live hearing was necessary. The submission period closed on 16 December 2025. Neither party contended that a further live hearing was required.
The Applicant’s current participant plan
The Applicant’s current Participant Plan incorporates the following participant goals (the Applicant’s Statement of Goals and Aspirations):[6]
I would like to be supported to transition to interstate and be able to play a more active role and build my relationship with my son [name] so I can appropriately be able to support him be able to play a significant parenting role [as in original]
I would [sic] the opportunity to be assessed by an Allied health professional in order to explore suitable housing options and determine my level of functionality to identify further supports.
I would like to eventually return to work and be able to achieve my goals.
I would like to improve my overall health and wellbeing to be able to continue living independently.
I would like to improve my quality of life by getting out and about and participating in the community.
[6] Hearing Tender Bundle, page 362 – 364.
The SoPS incorporated into the Applicant’s current Plan has a total budget of $92,113.04 for funded supports, for the period 10 August 2025 to 9 August 2026, which is divided into 3 categories. In the “Core Supports” category, total funding of $81,708.60 is available for assistance with social, economic and community participation. In the “Capacity Building Supports” category total funding of $8,620.44 is available. This comprises $1,485.84 for the services of a registered plan manager, $2,327.88 for “Improved Daily Living, being for 12 hours for occupational therapy assessment of housing needs, and $4,806.72 being for Support Coordination. These are “stated supports”, meaning that funding must be used for these purposes. In the “Recurring Supports” category total funding of $1,784.00 is available for transport to access community activities.[7]
[7] Ibid. pages 357 – 360 (this funding was ‘replenished’ by the variation decision made on 10 August 2025.
Applicable law
The NDIS Act is founded upon an explicit values base which is found in its objects (s 3), general principles (s 4), general principles guiding actions (s 5), and with respect to participants and their plans, in more specific principles contained in ss 17A and 31. It is unnecessary for present purposes to set out these value statements in detail.
In giving effect to the objects of the Act, regard must be had to the need to ensure the financial sustainability of the NDIS: s 3(3)(b). It is also a general principle that, relevantly, the CEO and any other person performing functions or exercising powers under the NDIS Act is to have regard to the need to ensure the financial sustainability of the NDIS: s 4(17).
Section 33 of the NDIS Act sets out the matters that must be included in a NDIS Participant Plan.
Pursuant to s 33(1), the Plan must include the Participant’s Statement of Goals and Aspirations.
Pursuant to s 33(2), the Plan must include a SoPS, prepared with the participant and approved by the CEO that specifies, relevantly to this case, (b) the reasonable and necessary supports (if any) that will be funded under the NDIS.
Section 34 of the NDIS Act determines what is a “reasonable and necessary support” for the purposes of s 33(2):
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 s 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.
Note:For the purposes of paragraph (aa):
(a)the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b)a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
(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 paragraphs (1)(aa) to (f).
Sections 34(2), 35 and 209(2A) of the NDIS Act prescribe rule making powers in connection, relevantly, with the funding or provision of reasonable and necessary supports. Several Rules made pursuant to these rule-making powers are potentially applicable in the circumstances of this case.
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) inform the interpretation and application of the s 34(1) considerations. Additionally, the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Rules 2024 (Cth) and the National Disability Insurance Scheme (Getting the NDIS Back on Track no. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth) are relevant in determining the paragraph 34(1)(f) consideration. However, for reasons explained following, the s 34(1) considerations and those Rules are not reached in the circumstances of this case.
The SDA Rules govern a participant’s eligibility for SDA and the circumstances in which specific categories of SDA will be approved.
The “eligibility rules” are found in Rules 11 to 14 of the SDA Rules. They provide:
11       Eligibility to receive support for specialist disability accommodation
A participant is eligible to receive support for specialist disability accommodation under the National Disability Insurance Scheme if the CEO is satisfied that:
(a)       the participant:
(i)has extreme functional impairment (see section 12); or
(ii)       has very high support needs (see section 13); and
(b)the participant meets the SDA needs requirement (see section 14).
12       When a participant has an extreme functional impairment
(1)       A participant has an extreme functional impairment if:
(a)the impairment results in extremely reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i)mobility;
(ii)self-care;
(iii)self-management; and
(b)the participant has a very high need for person-to-person supports in undertaking the activity even with assistive technology, equipment or home modifications.
(2)For the purposes of assessing whether a participant has an extreme functional impairment, the CEO may have regard to:
(a)any assessment or examination conducted in relation to the participant including any assessment or examination requested by the CEO under paragraph 36(2)(b) or 50(2)(b) or the Act; and
(b)the daily support requirements of the participant; and
(c)any assessment tool specified by the CEO for the purposes of this paragraph; and
(d) any other matters that the CEO considers appropriate.
13       When a participant has very high support needs
(1)       A participant has very high support needs if:
(a)the participant has lived in specialist disability accommodation for extended periods and living in that accommodation has impacted on the capacity of the participant to transition to alternative living arrangements and support: or
(b)the participant has a very high need for person-to-person supports, either immediately available or constant, for a significant part of the day and either:
(i)there are limitations in the availability, capacity or capability of the participant’s informal support network or risks to its sustainability; or
(ii)the participant is at risk or poses a risk to others, and that risk could be mitigated by the provision of specialist disability accommodation, having regard to the participant’s response to risk and the interaction of the participant with the environment.
(2)For the purposes of assessing whether a participant has very high support needs, the CEO may have regard to:
(a)any assessment or examination conducted in relation to the participant, including any assessment or examination requested by the CEO under paragraph 36(2)(b) or 50(2)(b) of the Act; and
(b)the daily support requirements of the participant; and
(c)any assessment tool specified by the CEO for the purposes of this paragraph; and
(d)any other matters that the CEO considers appropriate.
14       When a participant meets the SDA needs requirement
(1)A participant meets the SDA needs requirement if, when compared to other supports alone, combined specialist disability accommodation and other supports would:
(a)better assist the participant to pursue the goals, objectives and aspirations set out in the participant’s statement of goals and aspirations; and
(b)be more effective and beneficial, where possible, in:
(i)mitigating or alleviating the impact of the participant’s impairment upon the participant’s functional capacity; and
(ii)preventing the deterioration of the participant’s functional capacity; and
(iii)improving the participant’s functional capacity; and
(vi)maintaining or promoting the participant’s ability to building capacity, including in the medium or long term; and
(iv)maintaining or promoting the participant’s opportunities to develop skills; and
(c)if the participant has very high supports needs – be more effective and beneficial, where possible, in:
(i)reducing the participant’s future needs for supports which might be required due to inappropriate accommodation; and
(ii)assisting the participant to pursue goals related to life opportunities and life transitions; and
(d)if the participant has an extreme functional impairment – be more effective in providing the participant with stability and continuity of support; and
(e)       represent better value for money.
(2)For the purposes of paragraph (1)(e), regard must be had to the following matters if the participant has very high support needs:
(a)whether combined specialist accommodation support and other supports would be likely to substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(b)the cost of providing the participant with supports needed to live in accommodation other than specialist disability accommodation, taking into account:
(i)whether those supports may be shared with other participants; and
(ii)limitations of the participant’s informal support network.

The Rules related to the specific category of SDA that will be approved for an eligible participant are found in Rules 15 to 19 of the SDA Rules. For present purposes it is sufficient to identify those Rules by reference to Rule 15, which provides:
15 Matters to be determined by CEO in respect of each eligible participant
(1)The CEO must determine the following matters for an eligible participant:
(a)the SDA building type that is appropriate to support the eligible participant (see section 16);
(b)the SDA design category that is appropriate to support the eligible participant (see section 17);
(c)the area in which the specialist disability accommodation is to be located (see section 18):
(d)whether the specialist disability accommodation is to be provided as an in-kind support.
Note:The CEO may determine more than one SDA building type, SDA design category or location in relation to an eligible participant. The SDA building type, SDA design category and location must be specified in the participant’s plan; see section 19.
Consideration
Determination of whether support for SDA should be approved for inclusion in a participant’s SoPS involves a legally and factually dense analysis in which the Tribunal must pose and answer the following questions in the following sequence:
Stage 1:Ascertain if the participant is eligible to receive support for SDA.
Step 1:Determine if the participant has, either:
(i)an extreme functional impairment, or
(ii)very high support needs.
These requirements are expressed disjunctively. It is necessary for the participant to satisfy one requirement, it is not necessary that they satisfy both, but they may do so. If the answer to (i) or (ii) or both is “yes”, proceed to Step 2 of Stage 1. If the answer to both (i) and (ii) is “no” that is the end of the enquiry. SDA cannot be approved for inclusion in the participant’s SoPS, even if this request were to meet every other requirement of the Stage 1 and 2 enquiries because the first threshold requirement is not met.
Step 2:Determine if the participant meets the SDA needs requirement.
This requires a comparison of outcomes for the participant from two hypothetical support arrangements, being:
a.other supports alone, and
b.the combination of SDA with other supports.
The term “other supports” should be taken to encompass both formal (being the general supports provided and reasonable and necessary supports funded, or capable of being provided and funded in the participant’s SoPS) and the informal support that is reasonably available to them.
The outcomes of these two support arrangements are compared by reference to a series of criteria. In this respect, it is necessary to ask the questions: would SDA:
(iii)better assist the participant to pursue the goals, objectives and aspirations set out in their Statement of Goals and Aspirations.
If the answer to (iii) is “yes” then consider the next SDA needs requirement. This criterion is not subject to limitation. Therefore, if the answer is “no” then that is the end of the enquiry. SDA cannot be approved for inclusion in the participant’s SoPS even if this request were to meet every other requirement of the Stage 1 and 2 enquiries.
(iv)be more effective and beneficial for the participant, where possible, in achieving each of the five outcomes identified in paragraph 14(1)(b).
The five outcomes specified in paragraph 14(1)(b) are expressed conjunctively, however the chapeau of the paragraph contains the words “where possible”. Consequently, each specified outcome must be satisfied, subject to it being possible to achieve that outcome.
At this point in the analysis, the enquiry bifurcates between participants with an extreme functional impairment and those with very high support needs as found in Step 1 (recognising that a participant may satisfy both criteria).
With respect to a participant who has very high support needs (but not one that has an extreme functional impairment),
(v)be more effective and beneficial for the participant, where possible, in achieving both outcomes specified in paragraph 14(1)(c).
The two outcomes specified in paragraph 14(1)(c) are expressed conjunctively, however the chapeau of the paragraph contains the words “where possible”. Consequently, both specified outcomes must be satisfied, subject to it being possible to achieve each outcome.
With respect to a participant who has an extreme functional impairment (but not one that has very high support needs),
(vi)be more effective and beneficial for the participant in providing them with stability and continuity of support.
At this point in the analysis a converged enquiry resumes, but if a participant has very high support needs, there are separate mandatory considerations.
(vii)represent value for money.
a.    If a participant has an extreme functional impairment the analysis required in relation to this consideration is not further structured by the SDA Rules.
b.    If the participant has very high support needs, in determining if SDA represents value for money regard must be had to the following mandatory considerations:
-    whether combined specialist disability accommodation support and other supports would be likely to substantially improve the life stage outcomes for, and be of long-term benefit to the participant,
-    the cost of providing the participant with supports needed to live in accommodation other than SDA taking into account;
-whether those supports may be shared with other participants; and
-limitations of the participant’s informal support network.
If, on comparison of the conclusions reached in relation to the two hypothetical support arrangements, it is found that the participant meets the SDA needs requirement in addition to having either or both an extreme functional impairment or very high support needs, Stage 2 of the enquiry is reached. If it is found that the SDA needs requirement is not satisfied, then the participant is not eligible for support for SDA, and that is the end of the enquiry.
Stage 2Determine if the requested support is reasonable and necessary having regard to the criteria in s 34(1) of the Act:
In effect, although each of the s 34(1) criteria must be formally considered, a finding will already have been made in Stage 1, step 1, as to the paragraph 34(1)(aa) consideration, and in Stage 1, Step 2 (iii), in relation to the paragraph 34(1)(a) consideration.
With respect to paragraph 34(1)(c) of the Act and Rule 3.1 of the Supports for Participants Rules, if the person has been found to have very high support needs, the question of whether SDA constitutes value for money has already been considered in the Stage 1, Step 2(vi). While that enquiry is not necessarily exhaustive of the relevant considerations under the Act and the Supports for Participants Rules, if there are additional matters that require consideration the Tribunal would be assisted by either party identifying with precision what those additional matters are.
With respect to persons found to have an extreme functional impairment the question of whether SDA represents value for money is considered ‘at large’ under the SDA Rules. It is difficult to see how further enquiry under the Act, including by reference to the Supports for Participants Rules, would add anything to the conclusions reached by reference to the SDA Rules. However, if there are additional matters that require consideration under the Act and Rules the Tribunal would be assisted by either party identifying with precision what those additional matters are.
With respect to the paragraph 34(1)(d) requirement, the issue of whether SDA is effective and beneficial for the participant has already been considered at the Stage 1, Step 2(iv) and (v) enquiries. While that enquiry is not necessarily exhaustive of the relevant considerations under the Act and Rules 3.2 and 3.3 of the Supports for Participants Rules, if there are additional matters that require consideration the Tribunal would be assisted by either party identifying with precision what those additional matters are.
The primary work left for s 34(1) to do is in relation to the paragraph s 34(1)(b), (e) and (f) considerations. Therefore, the Stage 2 inquiry involves the following steps:
Step 4:with respect to the paragraphs 34(1)(aa) and (a) considerations make findings based on the conclusions reached in Stage 1 and Steps 2 (i), (ii) and (iii),
Step 5:with respect to the paragraphs 34(1)(c) and (d) considerations, consider any further matters necessary to be considered in accordance with the Act and Supports for Participants Rules, not considered under the SDA Rules.
Step 6:with respect to the paragraph 34(1)(b) consideration, consider the evidence and make findings in relation to that requirement.
Step 7:with respect to the paragraph 34(1)(e) consideration, consider the evidence and make findings in relation to that requirement.
Step 8:with respect to the paragraph 34(1)(f) requirement consider the evidence and make findings in relation to that requirement having regard to Schedule 1, Item 29, of the NDIS Supports Transitional Rules and Rule 7 of the Miscellaneous Rules.
For support for SDA to be approved for inclusion in a participant’s SoPS it must satisfy each of the s 34(1) requirements in accordance with the Act and relevant rules, in addition to satisfying the eligibility requirements for support for SDA. These requirements are expressed conjunctively, which means that if any one of them is not satisfied, this support cannot be approved for inclusion in a participant’s SoPS. If that is the case, it is the end of the enquiry. If each requirement is satisfied, Stage 3 of the enquiry is reached.
Stage 3Determine the building type, design category and area in which the SDA is to be located.
Step 9:determine the building type that is appropriate to support the participant, having regard to the matters set out in paragraphs 14(a) to (m) of the SDA Rules.
Step 10:determine the SDA design category that is appropriate to support the participant, having regard to the specific needs of the participant, noting that the “basic” SDA design category cannot be approved.
Step 11:determine the area in which the SDA is to be located having regard to the matters set out in paragraphs 18(1)(a) to (g), and the mandatory considerations set in paragraph 18(2) of the SDA Rules.
Step 12:consider if there are further matters that require consideration in relation to the approval of support for SDA having regard to Rules 15(2), 19, 20 and 21 of the SDA Rules.
I now turn to apply this structure of analysis to the facts in this case.
A helpful starting point is to consider what support of SDA is. It is a specialist form of support intended for a specific category of participants for whom other accommodations are not viable which exists in the context of a range of other ‘home and living supports’ that are potentially available to NDIS participants.
The following extract from the Agency’s Specialist disability accommodation operational guidelines[8] (SDA Guidelines) assists in illustrating this:
[8] National Disability Insurance Agency, Specialist Disability Accommodation (operational guidelines), 7 April 2025, page 1-2
Background on home and living supports
There are several different types of NDIS supports we might include in your plan when you need home and living support. These include:
·Supported independent living
·Individualised living options
·Medium term accommodation
·Short term accommodation
·Personal care supports
·Home modification
Different types of home and living supports will suit different people. Specialist disability accommodation is only one of many NDIS support options. There may be other home and living options that better suit your needs and preferences.
…
Quick summary: some people living with disability have very high support need. This could mean they need to live in a specially designed home. We call this specialist disability accommodation.
Most participants don’t need to live in specialist disability accommodation, and there may be other home and living supports that are more suitable.
If you’re eligible for specialist disability accommodation, we’ll work out your specialist disability accommodation budget.
…
What is specialist disability accommodation?
Specialist disability accommodation is a range of housing designed for people with extreme functional impairment or very high support needs.
Specialist disability accommodation is designed to be more accessible for you based on your disability support need. It helps you live more independently in your home and allows your other supports to be delivered better and more safely. For example, you might need a home with reinforced ceilings so you can get a ceiling hoist installed.
Specialist disability accommodation doesn’t include the services or NDIS supports you might get in your home that relate to your disability support needs. For example, personal care supports, supported independent living, individualised living options and some assistive technology are other types of home and living supports that we may fund.
Specialist disability accommodation may involve a shared home with a small number of other people where you have your own bedroom. You can choose to share your bedroom with other people, like a partner, if you want to.
You might be able to live in specialist disability accommodation by yourself, if that option best meets your disability support needs and situation.
Providers need to be registered to offer specialist disability accommodation. Providers have to apply to enrol homes with us that meet the standards and requirements for specialist disability accommodation. When the application is approved, we call these homes specialist disability accommodation dwellings.
You’ll need to pay rent and other day-to-day living costs, such as bills, to live in specialist disability accommodation.
Other than specialist disability accommodation, we don’t fund housing. Most participants will access housing in the private market by owning or renting, or through social housing. …
Is the Applicant eligible for support for SDA?
As set out above, Step 1 of the eligibility analysis requires me to be satisfied that the Applicant has an extreme functional impairment or very high support needs, or both, as prescribed.
Does the Applicant have an extreme functional impairment?
Logically, the answer to this question requires that I first identify what the Applicant’s impairments are and then, second, ascertain the degree to which those impairments limit his function in each of the life activity areas specified in the Rule, being mobility, self-care, and self-management. I note that it is only necessary for me to find that the Applicant lives with an extreme functional impairment in one of those life activity areas: it is not necessary that this is found in relation each life activity area.
Two questions arise in relation to the second task. First, what ‘condition’ of the Applicant should be the basis of the assessment; that is, is the assessment based upon the Applicant’s ‘intrinsic’ state, or is it assessed ‘after’ the utilisation of any treatment, assistive technology, home modifications etc to which the Applicant has access, or could have access. Second, what is the meaning of “extreme”?
It is relevant to note what the Agency’s SDA Guidelines[9] say in relation to these issues:
Do you have an extreme functional impairment?
This means you have a lot of trouble doing daily tasks on your own, or sometimes may not be able to do them at all. We’ll confirm you have an extreme functional impairment if you need lots of support from someone else to complete daily tasks. This is on top of any assistive technology or other home modifications you have. These daily tasks include:
Mobility – such as walking, climbing stairs, getting in and out of bed or a chair, carrying or moving items, and getting out of the house
Self-care – such as washing yourself, going to the toilet, getting dressed, eating, drinking, talking and taking medication
Self-management – such as housework, following routines, making friends and relationships and managing your behaviour.
[9] Ibid, page 4
I note that unlike the NDIS Act and Rules, the Agency’s operational policy is not binding upon the Tribunal. However, it is a long-established principle that the Tribunal should apply government policy except where to do so would be inconsistent with or contrary to a statutory requirement.[10]
[10] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) 2 ALD 634
It is to be observed that the operational guidelines merge the paragraph 12(1)(a) and (b) criteria, whereas the SDA Rules require them to be separately considered. They therefore do not assist in answering the questions I have posed above.
In my opinion, in determining the paragraph 12(1)(a) issue, the Applicant is to be assessed in his “naked” or intrinsic state; that is, his functional capacity is to be determined in the absence of assistive technology, equipment, or home modifications etc. That approach is consistent with the approach taken to determining functional capacity under Rule 5.8(a) of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) where functional capacity is determined in the absence of assistive technology, equipment (other than commonly used items such as glasses) or home modifications. In this respect, the legislative scheme should be interpreted harmoniously unless there is a clear legislative intention to the contrary.[11] The SDA Rules do not express an intention to the contrary.
[11] SAS Trustee Corporation v Miles (2018) 265 CLR 137, at 157; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at 381-382.
It is also the approach taken to determining human function[12] in the context of the International Classification of Functioning, Disability and Health (the ICF).[13] I have explained in other cases the availability and relevance of the ICF as an aid to interpretation in the NDIS legislative scheme. I adopt what I have said in those cases for the purposes of these reasons.[14]
[12] World Health Organisation, (2002), Towards a Common Language for Functioning, Disability and Health (ICF), Geneva, at 11.
[13] World Health Organisation, (2011), International Classification of Functioning, Disability and Health, Geneva
[14] DQKZ and National Disability Insurance Agency [2024] AATA 2276 at 144] – [149]; Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607 (Burrows) at [63].
With respect to the second question, the term “extreme functional impairment” appears in the dictionary in the SDA Rules, but that definition only refers to Rule 12 of those Rules so adds nothing. As it appears in Rule 12(1), the word “extreme” is one of two adjectives which describe the noun “impairment”. It is an ordinary English word, which the Macquarie dictionary defines, relevantly, as: “1. of a character or kind farthest removed from the ordinary or average; an extreme case; extreme measures. 2. utmost or exceedingly great in degree; extreme joy. 3. farthest from the centre or middle; outermost; endmost.”[15] Those definitions amplify the concept that underpins the word, but do not, in the context of the Rule, assist in the task of ascertaining with relative precision the threshold at which the condition it describes is reached.
[15] >
In Burrows[16] I sought to bring some social scientific objectivity to the task of ascertaining the meaning of the term “substantially reduced” in the context of s 24(1)(c) of the Act by reference to the calculus of human function used in the ICF and its designated assessment tool, the World Health Organisation Disability Assessment Schedule (WHODAS 2.0), which assesses the degree of difficulty a person may experience in executing tasks of daily living due to a health condition.[17] In my opinion, this calculus is also of assistance in giving meaning to the term “extreme functional impairment” by providing an objective measure of the threshold at which it is reached.
[16] Op.cit. at [64]
[17] Ustun, T B, Kostanjsek N, Chatterji S and Rehm, J, (eds) (2010), Measuring Health and Disability: Manual for WHO Disability Assessment Schedule, World Health Organisation.

WHODAS 2.0 assesses the “degree of difficulty” a person experiences in doing specified activities of daily living in terms of “increased effort”, “experience of discomfort or pain”, “slowness” or “changes in the way the person does the activity” according to a five-point scale which is “none” (0-4%), “mild” (5-24%), “moderate” (25-49%), “severe” (50-95%), and “extreme or cannot do” (96-100%).[18] The comparator is a hypothetical person who does not experience a variation or loss of normative body structure or function experienced by the subject person; in other words, a person who does not have the subject person’s health condition/s. WHODAS 2.0 operates on a domain specific basis (mobility, self-care etc).
[18] Ibid at page 38 -39.
Using the WHODAS difficulty factors and ratings as an interpretive aid, an ”extreme” functional impairment for the purposes of Rule 12.1 of the SDA Rules is therefore a degree of difficulty in performing a task or action in a life activity area that is 96% or more greater than a person who does not have the subject person’s health condition/s, measured in terms of the increased effort, discomfort or pain, slowness and/or changes to the way the task or action is performed.
I turn now to the Applicant’s circumstances.[19]
[19] This summary is taken from the Applicant’s Statement of Lived Experience, dated 21 August 2024, at pages 328 – 333 of the Hearing Bundle and from various other allied health and medical reports in evidence. None of this information is controversial.
The Applicant is 40 years of age. He lives alone in a two-bedroom villa with garage which he rents under a long-term social housing agreement with a social housing provider in a suburb in western Sydney. The Applicant was born and raised in NSW. His parents live in western Sydney. He has no siblings.
At the time of his injuries, the Applicant had lived in private rental accommodation in Brisbane for several years. He has a son, who is 14 years of age, who lives in Brisbane with his mother, the Applicant’s ex-partner. He contends that his friends are all located in Queensland.
In August 2017, when he was 32, he was involved in a major motorcycle collision which resulted injuries which required the amputation of his right leg above the knee, in an avulsion injury to his right brachial plexus (the tearing away from the spinal cord of the network of nerves in the neck and shoulder that control the arm and hand), resulting in immobility of his right arm and hand and in severe neuropathic pain in his right arm and hand and hand spasms, in a traumatic brain injury, and in multiple other fractures and internal and external lacerations.
In his post-acute recovery period, the Applicant was transferred to NSW for specialist neurosurgery which was not available to him in Queensland. He applied for social housing as part of his discharge plan from that medical facility, initially being approved for emergency accommodation, then later, his current long-term social housing. He contends that it was never his intention to move to NSW, and that he has no friends in Sydney.
Prior to this collision, the Applicant had been diagnosed with attention deficit hyperactivity disorder (ADHD) at 10 years of age. He had experienced two prior brain injuries at the ages of 17 and 20 because of motorvehicle collisions, resulting in impaired memory and persistent emotional and behavioural dysregulation. He had acquired diagnoses of probable borderline personality disorder, Bipolar Affective Disorder, and neurocognitive disorder (impaired mental function) consequent upon brain injury. He had a history of illicit drug use, alcohol dependence, suicide ideation and suicide attempts, including on the day prior to his collision. His collision may have been a further suicide attempt.
Following his collision, the Applicant developed Major Depressive Disorder, with associated anxiety, and persistent serious emotional and behavioural dysregulation, sometimes requiring attendance of Police in health care and other settings.
The Applicant receives treatment, care and support under the Queensland National Injury Insurance Scheme. Since his participation in that Scheme his Support Plan has included funding for the provision of Clinical Psychiatry (2-3monthly), Clinical Psychology (4-6 weekly), Physiotherapy (weekly), Occupational Therapy, Social Work, ongoing rehabilitation case-management, dog washing and grooming, transport to injury related appointments, injury-related medication, and a prosthetic leg and prosthetic support. He has also received funding under the Scheme for a M5 power wheelchair, a F5 power wheelchair, a Lever drive manual wheelchair, and adjustable bed and mattress, and various low-cost items of adaptive equipment. Additionally, he is funded under that scheme for 4.5hours of direct support worker assistance with activities of daily living (shopping, cleaning, laundry etc) 4 days per week.
The most recent report from his Psychiatrist to his General Practitioner that is in evidence is dated 10 April 2024.[20] It confirms his historical diagnoses and adds, chronic pain disorder. It records that he has been using THC oil for pain relief with apparent good effect. It also records a decrease in his use of Diazepam (an anxiolytic), and the continued use of Mirtazapine (an atypical antidepressant), Pregabalin (a treatment for nerve pain) and Carbamazepine (relevantly, used to treat neuropathic pain). He is described as “managing”.
[20] Hearing Tender Bundle, page 568 – 569.
On 11 June 2024 the Applicant attended on a Senior Clinical Neuropsychologist for a neuropsychological assessment in the context of him wanting to reobtain a drivers’ license. A report arising from that consultation is in evidence.[21] Eight tests were administered, the results of which are, for present purposes, sufficiently encapsulated in the following extract from the “summary and recommendations” section of the Neuropsychologist’s report:
Mr Allen certainly presents with a complex psychological background with a long-term history of psychosocial challenges. At this point in time however, he is appearing to be psychologically stable and performing to largely within expected ranges on high-level cognitive assessment measures …
[21] Hearing Tender Bundle, pages 582 -587.
As at the date of the hearing I am satisfied on the evidence before me that the Applicant continues to live with a subsisting brain injury, Major Depressive Disorder and anxiety but that the impact of the impairments of global and specific mental function that are derivative of these conditions is being successfully managed with medication and other clinical interventions. While these impairments persist on an underlying basis, their impact is far from “extreme”.
The impairments of body function and structure that the Applicant continues to experience, and which are determinative in the first step of the analysis, are: (using the ICF classification system):
i.Sensation of pain (pain in multiple body parts),[22]
ii.impaired neuromusculoskeletal and movement related functions, muscle functions (power of muscles of one side of the body), and sensations related to muscles and movement functions (sensation of muscle spasm).[23]
iii.impaired structure of the spinal cord (cervical spinal cord) and spinal nerves,[24]
iv.impaired structure of the shoulder region (muscles of the shoulder region, ligaments and fasciae of the shoulder region),[25]
v.impaired structure of upper extremity (muscles of upper arm, forearm and hand),[26]
vi.impaired structure of lower extremity (structure of lower leg).[27]
[22] ICF, Chapter 2, b280, b2802.
[23] ICF, Chapter 7, b730, b7302; b 780, b 7801
[24] ICF, Chapter 1, s120, s1201
[25] ICF, Chapter 7, s720, s7202, s7203
[26] ICF, Chapter 7, s730, s7300, s7302
[27] ICF, Chapter 7, s7501
I now turn to the question of the degree to which these impairments limit the Applicant’s functional capacity in one or more of the life activity areas of mobility, self-care and self-management.
A threshold issue in this regard is the scope and content of each of those life activity areas. The terms “mobility”, “self-care” and “self-management” are not defined, or their scope and content prescribed, in the Act or in the SDA Rules. Nor are they defined, or their scope and content prescribed, by the Agency’s SDA operational guidelines. As noted above, the guidelines do, however, give examples of tasks that fall within each life activity area.
Does the Applicant experience extremely reduced functional capacity to undertake mobility?
The SDA operational guidelines state that the tasks and actions involved in the mobility life activity area include (but are not limited to):
-          walking,
-          climbing stairs,
-          getting in and out of a bed or chair,
-          carrying or moving items, and
-          getting out of the house.
As I have explained above, the Applicant’s functional capacity for mobility is to be assessed in his intrinsic state, absent assistive technology and equipment etc.
With respect to undertaking the tasks and actions involved in walking, I find that the Applicant, in his intrinsic state, is unable to walk. That is because his right leg is amputated above the knee. The Applicant cannot walk on one leg. He can only mobilise using a wheelchair or his prosthetic leg. I am therefore satisfied on this basis that the Applicant in his intrinsic state experiences extremely reduced functional capacity in relation to walking.
With respect to undertaking the tasks and actions involved in climbing stairs, I find that the Applicant, in his intrinsic state, is unable to do so. That is because his right leg is amputated above the knee. The Applicant cannot climb stairs on one leg. He can only do so using his prosthetic leg, but still has great difficulty doing so because he is unable to maintain balance due to his right arm paralysis. I am therefore satisfied on this basis that the Applicant, in his intrinsic state, experiences extremely reduced functional capacity in relation to stair climbing.
With respect to getting in and out of bed or a chair, I find the Applicant, in his intrinsic state:
-cannot get into and out of a lying down position or change his body position from horizontal to any other position such as standing up or sitting down without using assistive technology, equipment or with direct person-to-person assistance, and
-the Applicant cannot get into and out of a seated position or change his body position from sitting down to any other position, such as standing up or lying down without using assistive technology or equipment, or with direct person-to-person assistance.
That is because his right leg is amputated above the knee and his right arm and hand are immobile. He is unable to maintain body balance as a result. I am therefore satisfied on this basis that the Applicant, in his intrinsic state, experiences extremely reduced functional capacity getting in and out of bed or a chair.
With respect to carrying or moving items, I find that the Applicant, in his intrinsic state, is unable to do so. That is because his right leg is amputated above the knee and his right arm and hand are immobile. He cannot walk and is unable to maintain body balance even in a static standing position. He is unable to mobilise without the use of his prosthetic leg or a mobility device. I am therefore satisfied on this basis that the Applicant, in his intrinsic state, experiences extremely reduced functional capacity to carry and move items.
With respect to getting out of the house, I find that the Applicant, in his intrinsic state, is unable to do so. He is unable to walk. Nor is he able to hop because he is unable to maintain body balance due to his right arm paralysis. He can only leave his home with the use of his prosthetic leg or a mobility device. While he can travel in a motor vehicle, he can only get into and out of the motor vehicle with person-to-person assistance. I am therefore satisfied on this basis that the Applicant, in his intrinsic state, experiences extremely reduced functional capacity to get out of the house.
Having regard to these findings, I am satisfied that the Applicant has extremely reduced functional capacity for mobility.
As Rule 12.1(a) of the SDA Rules only requires that the Applicant is found to have extremely reduced function capacity in one of the three life activity areas specified there it is unnecessary for me to consider his functional capacity in the self-care and self-management life activity areas.
I now turn to consider the second limb of the test for extreme functional impairment which is to determine if the Applicant has a very high needs for person-to-person supports in undertaking the tasks and actions involved in mobility even with assistive technology, equipment or home modifications. It is to be noted that this limb of the test does not consider the Applicant in his pristine state. It takes account of the degree to which his prosthesis, mobility devices and any home modifications improve his functional capacity for mobility and then poses the question does he still have a very high need for person-to-person support despite that.
The term “person-to-person support” is not defined in the STA Rules or in the STA operational guidelines. In my opinion it should be taken to refer to direct practical support provided to, and/or needed by, the Applicant in relation to the tasks and actions of daily living whether that support is provided formally (by a paid support worker) or informally (by a family member, carer or friend). In my opinion the term is not intended to encompass the support provided by the Applicant’s treating clinicians, such as his Psychiatrist, Clinical Psychologist, and physiotherapist etc.
The Applicant is in receipt of the following person-to-person support:
i.4.5 hours per day of support worker assistance 4 days per week funded by the National Injury Insurance Scheme Queensland (18 hours per week),
ii.20 hours per week of support worker assistance with social, economic and community participation funded by the NDIS.
This constitutes 38 hours per week of person-to-person support for the Applicant.
The Applicant does not receive additional person-to-person support from any informal source.
I do not understand the Applicant to contend that there is an insufficiency in these person-to-person supports.
I do not understand the Agency to suggest that these person-to-person supports are not needed by the Applicant. In any event, having regard to his extremely reduced functional capacity for mobility, I am satisfied that they are needed by him.
I am also satisfied that these person-to-person supports are substantially directed towards support for the Applicant’s mobility within his home and in the community.[28]
[28] In his Statement of Lived Experience the Applicant states that his support workers assist him by carrying and moving items within the home and in assisting him to attend to shopping, appointments and other activities in the community, Hearing Tender Bundle, pages 329 – 332.
In my opinion, 38hours of person-to-person support, determined to be necessary under both a State and Commonwealth program, is indicative of a very high need for such support. I make that finding. In this respect, I note that the SDA Rules and operational guidelines do not specify any threshold of hourly support that must be reached to satisfy this requirement. The evidence is that the Applicant could not prepare other than very simple meals, undertake domestic cleaning or laundry, or travel within the community to shop, attend medical appointments, and for other purposes, without person-to-person assistance.[29] These are all subsistence related activities, which are indicative of a very high need for such support in my opinion.
[29] Mr Cleary’s report, Hearing Bundle, page 344 -346.
The Applicant thus satisfies both limbs of Rule12(1). He is a person with an extreme functional impairment for the purposes of SDA eligibility.
That being the case, it is unnecessary for me to consider if he has very high support needs for the purposes of Rule 13 of the SDA Rules.
I therefore now turn to consider if the Applicant meets the SDA needs requirement.
With respect to paragraph 14(1)(a) of the SDA Rules, the Applicant puts his case on the basis that there is a nexus between the SDA support he requests and the first goal in his Statement of Goals and Aspirations. That is, he contends that SDA support for a 2-bedroom dwelling in Brisbane would enable him to relocate to Brisbane and play a more active role and build his relationship with his son. That proposition may be accepted at a superficial level only.
That is because there is nothing about the SDA accommodation type that is essential to the achievement of that goal. An accessible two-bedroom dwelling purchased or obtained on the private rental market or supplied by a social housing provider in Brisbane would also enable the Applicant to achieve that goal. If support for SDA was provided for a location in Sydney where the Applicant presently lives, he would face the same barrier to the achievement of this goal as he presently does. If his present 2-bedroom social housing property could somehow be relocated to Brisbane, he would have no need for support for SDA. It is location that limits the Applicant from having a closer relationship with his son, not his present accommodation type.
The Applicant explains his difficulties in moving to Brisbane in the following ways. The National Injury Insurance Scheme Queensland does not supply accommodation. He is ineligible for social housing in Queensland because he does not live in Queensland and cannot apply for it until he does. In any event, social housing in Queensland is means tested in such a way that he would be ineligible for it because he received a substantial compensation payment under ‘total and permanent disability’ insurance policy due to his injuries. While that compensation payment was substantial, it is not sufficient for the Applicant to be able to buy a house.[30]
[30] Applicant’s Statement of Lived Experience, Hearing Bundle, page 330
I accept that these are very real and life limiting challenges for the Applicant. But they are challenges that lie outside the NDIS. The NDIS is not a panacea intended to overcome limitations in other insurance schemes and government programs. Limitations in other government programs do not form part of the SDA needs requirement.
With respect to paragraph 14(1)(b) the Applicant puts his case in terms of aspects of his current living environment that are sub-optimal from an accessibility and safety viewpoint. In this respect while he accepts that his apartment is “generally accessible”, it was not “built for him to use”. Consequently, his mobility devices have caused some damage to walls and doorways because he has difficulty manoeuvring in a “narrow space”, the tiles on the bathroom floor are not non-slip tiles, which creates a risk of falls, and some kitchen cupboards are out of reach for him.[31]
[31] Ibid. page 328 – 329, 332 – 333.
The Applicant finds support for this aspect of his case in the evidence of the independent expert, Mr Cleary, who answered a targeted question from the Agency’s legal representatives as follows:[32]
[32] Cleary Report, Hearing Bundle, page 347 – 348.
(a)Please specify how Mr Allen’s current housing situation does or does not meet his disability support needs.
Mr Allen’s current housing situation does not meet his disability support needs as it restricts his ability to participate in domestic activities of daily living and restricts his ability to access his local community. As I have outlined … he has significant functional restrictions that are exacerbated by his home environment. These include the following:
- Cooking – he is limited in his ability with this task as he cannot reach many of the cupboards, and there is not sufficient accessible space for him to assist with tasks like chopping or preparing vegetables.
- Shopping – the shops are a considerable distance away and require him to cross roads at uncontrolled intersections. He needs to traverse a mixture of accessible pavements and uneven road surfaces. Due to the difficulty in accessing the shopping precinct, he avoids going there, worsening his social isolation.
- Community access – he struggles to navigate to the main shopping or community activities. He finds it difficult to use public transport and feels unsafe in the community without support. He would benefit from a location closer to shops and community activities that he could better access independently.
- Showering – while he is able to shower independently, he has had a number of falls in the shower area. He would benefit from a purpose-built shower area with non-slip tiles.
- Getting in and out of his home – he struggles to open and close the front door, preferring to access the house via a ramp in the garage. He has set up strings on the door so he can pull this closed after him; however, this is not always effective, and there are noticeable marks around the doorways where he had hit the walls and doors with his wheelchair. The access from the garage was steep and narrow, and I would not consider this safe for regular use.
- Care of children – currently he is only able to see his son on pre-arranged visits, and he feels he has missed out on his son’s growing up. He wants to be a bigger part of his son’s life and to achieve this goal he needs to be located in an area close to his son, which is also accessible and has sufficient space for his son to stay.

As I have set out above, the SDA needs requirement requires a comparison to be made between support for SDA and other supports alone. Both are hypothetical postulates. In this respect, “other supports alone” is to be viewed as inclusive of supports to which a participant already has available to them or which they could reasonably be expected to obtain, other than support for SDA.
The Applicant currently lives in a 2-bedroom apartment with garage provided to him under a social housing program. It is generally physically accessible for him but does have sub-optimal features. These are a front door which operates in a way that makes it difficult for him to open it, an absence of non-slip floor tiles, or floor tiles with a non-slip coating, in the bathroom, a narrow ramp from the garage into the apartment, a standard kitchen bench that is difficult to reach from a seated position, and some kitchen cupboard heights that he cannot reach.
These are all features of a domestic dwelling that are capable of modification. Home modifications to remove these sup-optimal accessibility features would have each of the beneficial effects specified in Rule 14(1)(b). It is not suggested in the evidence that home modifications of this kind cannot be carried out in the Applicant’s home for any technical reason. The provision of support for SDA is not necessary to address these sub-optimal design features.
Although I do not have evidence of the costs of such home modifications before me, as a matter of general principle and common sense, the cost of relatively minor home modifications of this kind would represent better value for money that the high recurring cost of support for SDA.
As I understand the evidence the Applicant has not requested his social housing provider to modify his home to remove these sub-optimal accessibility features. I note that the CEO has approved funding in the Applicant’s current SoPS for 12 hours assessment of housing/accommodation needs by an Occupational Therapist to support a ‘home and living’ application. That funding is proportionate to the accessibility issues the Applicant is experiencing in his present home in my opinion. By comparison, support for SDA is a seriously disproportionate response to those needs and does not represent value for money.
As I have stated above, what is really at issue in this case is the Applicant’s wish to move to Brisbane to be closer to his son. Any reasonable person would want the Applicant to be able to achieve that goal, but it is a matter that is external to his functional capacity upon which the SDA needs requirement turns. A participant will only meet the SDA needs requirement if SDA will be more effective and beneficial, where possible, in supporting their functional capacity in the ways specified in Rule 14(1)(b). It would not do so in this case as compared with an accessible ‘standard’ dwelling obtained in the private or social housing rental markets. An accessible ‘standard’ dwelling would provide equivalent functional outcomes without the additional and substantial cost of support for SDA.
An equivalent point is to be made in relation to any lack of proximity of the Applicant’s current home from shopping and recreational precincts. An accessible standard dwelling closer to shops and recreational precincts would overcome any functional limitation the Applicant currently experiences due to his location. Support for SDA is not necessary to overcome any such limitation.
I also note in relation to this issue that the CEO has approved 20 hours per week of person-to-person assistance for the Applicant for social and community participation, and an additional travel budget of $1,784.00 per annum to support such activities. I also note that the National Injury Insurance Scheme Queensland funds the Applicant for all travel related to allied health and medical appointments related to his injuries. It thus difficult for me to understand how it is that the Applicant experiences social isolation arising from a lack of proximity to shopping and recreation precincts, given that he lives in a suburb of a large city. In any event, I am satisfied that these supports are sufficient to enable the Applicant’s social and community participation without it being necessary to for him to obtain SDA.
It follows from these reasons that the Applicant does not satisfy the needs requirement for support for SDA. He is therefore not eligible for SDA, and his request for this support cannot be further considered.
Orders
Having regard to this, I order:
(1) Pursuant to s 105(a) of the Administrative Review Tribunal Act 2024 (Cth) the decision of the Respondent dated 9 August 2024, as varied by the decision of the Respondent dated 10 August 2025 is affirmed.
(2) Pursuant to paragraph 101(1)(a) of the Administrative Review Tribunal Act 2024 (Cth) the application insofar as it concerns the internal review decision dated 12 July 2023, and the decision to approve a further Statement of Participant Supports dated 7 May 2024 is dismissed on the basis that these decisions are no longer of any substance.

Date(s) of hearing: 26 and 27 September 2024, 18 December 2024

Advocate for the Applicant:
Ms S Bateman, Disability Advocacy NSW

Counsel for the Respondent: Ms M Fisher

Solicitor for the Respondent: Ms J Thomson, Moray and Agnew

Date(s) of hearing:	26 and 27 September 2024, 18 December 2024
Advocate for the Applicant:	Ms S Bateman, Disability Advocacy NSW
Counsel for the Respondent:	Ms M Fisher
Solicitor for the Respondent:	Ms J Thomson, Moray and Agnew