Annuscheit and National Disability Insurance Agency (NDIS)

[2025] ARTA 723

Annuscheit and National Disability Insurance Agency (NDIS) [2025] ARTA 723 (12 June 2025)

Applicant/s:  Caleb Annuscheit

Respondent:  CEO, National Disability Insurance Agency

Tribunal Number:                2023/5155

Tribunal:General Member S Smith

Place:Brisbane

Date:12 June 2025

Decision:The Tribunal affirms the decision under review.

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

General Member S Smith

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME –participant supports – 1:1 support - short term accommodation – reasonable and necessary supports – consideration of section 34 National Disability Insurance Scheme Act 2013 (Cth) - decision 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)
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 (Becoming a Participant) Rules - 2016, Access Rules

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

Cases

Beezley v Repatriation Commission (2015) FCAFC 165
McGarrigle v National Disability Insurance Agency [2017] FCA 308
NDIA v KKTB, by her litigation representative CVY22 [2022] FCAFC 181
National Disability Insurance Agency v WRMF (2020) 276 FCR 415
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60

SCHW and National Disability Insurance Agency [2021] AATA 591

Secondary Materials

NDIS – Operational Guidelines - Reasonable and necessary supports, 22 September 2024.
NDIS – Principles we follow to create your plan, 22 September 2024.
NDIS – Creating your plan, 28 February 2025.

NDIS Pricing Arrangements and Price Limits, 2024/25

Statement of Reasons

1. Mr Annuscheit is a 23-year-old Indigenous Australian man[1] and he lives in ‘a self-contained unit’[2] (‘the unit’) on his fiancée’s parents’ property outside Melbourne.

   [1] EB-3.

   [2] The unit contains a bedroom, kitchen, and bathroom. EB-1, page 37. Ms Crane OT report.

2. Mr Annuscheit became a participant in the National Disability Insurance Scheme (‘scheme’) on 9 May 2023.[3] The scheme is administered by the National Disability Insurance Agency (‘Agency’) pursuant to the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’).

   [3] Oral evidence of Ms Collins.

3. Mr Annuscheit was granted access to the scheme on the basis of neurological impairments resulting from his diagnosis of Autism Spectrum Disorder (‘ASD’), pursuant to the ‘disability requirements’ under section 24 of the NDIS Act.

   BACKGROUND

4. On 1 June 2023, a delegate of the Agency approved a Statement of Participant Supports (‘SOPS’) for inclusion in Mr Annuscheit’s plan.[4] Mr Annuscheit requested a review of the original decision. On 14 July 2023, a different delegate of the Agency varied the original decision under s100 of the NDIS Act[5] (‘internal review decision’).

   [4] Pursuant to section 33(2) NDIS Act. EB-1, pages 81-94.

   [5] EB-1, T1A.

5. On 16 July 2023, Mr Annuscheit applied to the Administrative Appeals Tribunal (‘AAT’) for review of the internal review decision under section 103 of the NDIS Act.[6]

   [6] EB-1, T1. Section 103 of the NDIS Act in combination with section 25 of the AAT Act.

6. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.

7. The hearing took place over Microsoft teams for two days. Mr Annuscheit did not attend the hearing and did not call any witnesses; he was represented by Ms Elizabeth Collins, his fiancée’s mother. Ms Collins also made the application to the Tribunal on Mr Annuscheit’s behalf. The Agency was represented by Ms Carmen De Marco of counsel instructed by Ms Emily Baggett from Mills Oakley lawyers. Ms Collins and Mr Elliott Mate, occupational therapist, gave oral evidence at the hearing.

   EVIDENCE BEFORE THE TRIBUNAL

8. The Tribunal considered the following evidence marked as Exhibit Bundles (‘EB’):

   ·EB-1 – Consolidated joint hearing bundle, filed 3 April 2025, 556 pages;

   ·EB-2 – Agency Statement of Facts Issues and Contentions (SFIC), 20 March 2025, 9 pages, including

   oAnnexure A, summary of current plan, 14 March 2025, 2 pages;

   oAnnexure B, statutory framework, 5 pages.

   ·EB-3 – Applicant response to Agency SFIC, 25 March 2025, 5 pages;[7]

   ·EB-4 - ‘Replenished Plan’ for Mr Annuscheit, 11 February 2025; and

   ·EB-5 – Four emails 15 March 2024 between Ms Collins and Agency representative.

   [7] Refers to EB-1, T9, page 94.

   ISSUES ON REVIEW

9. Mr Annuscheit presses two areas in this review.

10. Firstly, Mr Annuscheit contends that ‘other diagnoses’ should be recognised for him under the scheme from his diagnoses of: [8]

    ·Post Traumatic Stress Disorder (‘PTSD’);

    ·Attention Deficit Hyperactivity Disorder (‘ADHD’);

    ·Depression; and

    ·Generalised Anxiety Disorder (‘GAD’).

    [8] EB-3. Ms Collins referred to a ‘change of circumstances form submitted to the Agency on 17 February 2024.

11. Secondly, Mr Annuscheit seeks increased funding for two of his already funded supports (the ‘requested supports’):[9]

    [9] Oral evidence of Ms Collins.

    ·1:1 support worker hours for both home and community at 12 hours per day, 7 days per week.

    oMr Annuscheit is currently funded for:

    (i)5 hours per week of support worker assistance with personal domestic duties;

    (ii)6 hours per week assistance with community, social, recreational activity participation;

    (iii)3 hours per month of support worker assistance for house/yard maintenance

    ·Increase for Short-Term Accommodation (‘STA’) funding to 21 days per year, including respite.

    oMr Annuscheit is currently funded for 7 days per year.

12. The Agency contends that:

    ·The conditions referred to in [10] do not give rise to an impairment which would meet the disability requirements. On this basis subsection 34(1)(aa) of the NDIS Act is not satisfied with respect to ‘other impairments’. Simply put Mr Annuscheit can only seek funding in relation to supports that are necessary to address his neurological impairment that arises as a consequence of his ASD;

    ·The increased funding request for the ‘requested supports’ is not ‘reasonable and necessary’ pursuant to section 34 of the NDIS Act.

13. The Tribunal must make the correct or preferable decision based on the material before it[10] regarding whether the requested supports are:

    ·Reasonable and necessary supports under sections 33 and 34 of the NDIS Act; and

    ·Capable of being funded by the scheme in order to be included in Mr Annuscheit’s SOPS.

    THE LEGAL FRAMEWORK

    [10] Frugtniet v Australian Securities and Investment Commission [2019] HCA 16; (2019) 266 CLR 250 at [51]; QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 [7].

    The National Disability Insurance Scheme Act 2013 (Cth)

14. The general principles and guiding actions taken under the NDIS Act are set out in section 4 and the objectives are stated in section 3. In particular section 3(1)(c) and (g) state the objectives of the NDIS Act are to support the independence and social and economic participation of people with disability and to enable people with disability to maximise independent lifestyles and full inclusion in the community. Additionally, in giving effect to these objectives, regard is to be had to the need to ensure the financial sustainability of the scheme.[11]

    [11] See section 3(3)(b) of the NDIS Act.

15. Mr Annuscheit’s plan must include a SOPS, that is approved in accordance with section 33 and relevant rules made under the NDIS Act.

16. Section 34 of the NDIS Act sets out what is a ‘reasonable and necessary support’ under the Scheme.

17. On 3 October 2024, and also prior to this review the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (‘Amending Act’) commenced. The Amending Act provided amendments to the NDIS Act including amendments to section 34 of the NDIS Act which will apply to Mr Annuscheit’s review.[12]

    [12] Section 129 Amending Act. NDIS Amendment (Getting the NDIS Back on Track No 1) Act 2024.

18. The amended section 34 of the NDIS Act provides as follows:

    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 participantmeets 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.

    Note:  For the purposes of (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 participantmeets the disability requirements or the 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). (Tribunal emphasis to indicate amendments)

19. The subsection 34(1) criteria of the NDIS Act are cumulative; therefore, all the criteria must be satisfied. Moreover, the Tribunal must be positively satisfied about each criterion and the Applicant has a ‘common sense onus to adduce sufficient evidence to satisfy the Tribunal that the criteria are met.[13] 

    [13] See Beezley v Repatriation Commission (2015) FCAFC 165 at [68]. Per North, Tracey and Mortimer JJ. See also National Disability Insurance Agency v WRMF (2020) 276 FCR 415 at [201]-[202].

20. Section 34(1)(aa) of the NDIS Act imposes an additional criteria requirement. This involves a consideration of whether the support that Mr Annuscheit seeks is necessary to address his needs which arise from the impairment/s for which he met the disability requirements under section 24 or the early intervention requirements under section 25 of the NDIS Act.

21. The ‘new’ section 34(1)(f) of the NDIS Act requires that the support be a ‘NDIS support.’

22. Section 10 of the NDIS Act provides a definition of what is a ‘NDIS Support’ pursuant to section 34(1)(f) of the amended NDIS Act, and states as follows:

    Supports that are NDIS supports

    (1)  Subject to subsections (4) and (9), a support is an NDIS support for a person who is a participant or prospective participant if the support is declared by National Disability Insurance Scheme rules made for the purposes of this subsection to be an NDIS support for :

    (a)  participants or prospective participants generally; or

    (b)  a class of participants or prospective participants that includes the person.

    Note:  The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003 ).

    (2)  Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (1), the Minister must be satisfied:

    (a)  for rules to which paragraph (1)(a) applies--that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or

    (b)  for rules to which paragraph (1)(b) applies--that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

    (3)  National Disability Insurance Scheme rules may declare a support for the purposes of subsection  (1) only if at least one of the following applies:

    (a)  the declaration of the support implements Australia's obligations under:

    (i)  the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006; or

    (ii)  any other agreement with one or more other countries;

    (b)  the declaration of the support enables the provision of sickness benefits.

    Note:  For subparagraph (a)(i), the Convention on the Rights of Persons with Disabilities is in Australian Treaty Series 2008 No.12 ([2008] ATS 12) and could in 2024 be viewed in the Australian Treaties Library on the website ( are not NDIS supports

    (4)  The National Disability Insurance Scheme rules may declare that a support is not an NDIS support for:

    (a)  participants or prospective participants generally; or

    (b)  a class of participants or prospective participants.

    Note:  The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003 ).

    (5)  Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection   (4), the Minister must be satisfied:

    (a)  for rules to which paragraph (4)(a) applies--that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or

    (b)  for rules to which paragraph (4)(b) applies--that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

    (6)  The CEO may determine, in writing, that a support is taken to not be declared under subsection  (4) in relation to a participant if:

    (a)  the support is prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and

    (b)  the support would, apart from subsection (4), be an NDIS support for the participant; and

    (c)  the participant applies to the CEO in accordance with subsection (7) for the determination; and

    (d)  the CEO is satisfied that:

    (i)  the support would replace one or more other supports that are NDIS supports for the participant; and

    (ii)  the cost of the support is the same or lower than the total of the costs of the supports it would replace; and

    (iii)  the support would provide the same or a better outcome for the participant than the supports it would replace; and

    (iv)  any other conditions specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph are met in relation to the support, the participant, or both.

    Note 1:  A determination may be revoked under subsection 33(3) of the Acts Interpretation Act 1901 .

    Note 2:  The National Disability Insurance Scheme rules may prescribe a support for the purposes of paragraph (a) by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003 ).

    (7)  An application under paragraph (6)(c) must:

    (a)  be in the form (if any) approved by the CEO; and

    (b)  include any information, and be accompanied by any documents, required by the CEO; and

    (c)  be made in accordance with any other requirements specified in the National Disability Insurance Scheme rules for the purposes of this paragraph, which may include requirements as to the circumstances in which an application may, or may not, be made.

    (8)  The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of subsection (6), including by prescribing requirements with which the CEO must comply, methods or criteria that the CEO is to apply, or matters that the CEO may, must or must not take into account, in deciding whether to make a determination under that subsection.

    (9)  A support is not an NDIS support for a participant or prospective participant if the support consists of the provision of:

    (a)  sexual services; or

    (b)  alcohol; or

    (c)  drugs, the possession of which is a contravention of a law of the Commonwealth, a State or a Territory.

23. Section 34(2) of the NDIS Act outlines that the NDIS rules may prescribe methods or criteria to be applied, or matters the CEO must consider, in deciding whether a requested support satisfies the criteria under section 34(1) of the NDIS Act.

24. Section 35 of the NDIS Act allows for rules to be made with respect to the prescription of ‘reasonable and necessary supports’ or ‘general supports’ that will be funded or provided under the scheme.

25. For Mr Annuscheit’s review the relevant rules include the: National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘Supports Rules’) and National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (‘Transitional Rules’).

26. Rules 3 and 5 of the Supports Rules are relevant and they state as follows:

    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 leasing 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;

    (e)       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;

    (f)        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.

    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.

1. The Transitional Rules are also relevant to Mr Annuscheit’s review. Schedule 1 of the Transitional Rules sets out supports that are NDIS Supports, unless otherwise provided, for the purposes of s 10(1) of the NDIS Act. Schedule 2 of the Transitional Rules identifies supports that generally are not NDIS supports for the purposes of s 10(1) of the NDIS Act.

2. In regard to supports rules, Mortimer J observed in McGarrigle v National Disability Insurance Agency[14]:

   ‘The [supports rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement…some policy decision-making about the nature and extent of supports to be provided or funded.’ 

   [14] McGarrigle v National Disability Insurance Agency [2017] FCA 308 (‘McGarrigle’) [43].

3. There is no definition of ‘reasonable and necessary’ in the NDIS Act. The Full Court in National Disability Insurance Agency v WRMF[15] (‘WRMF’) considered the meaning of reasonable and necessary supports, and stated as follows:

   The phrase is a composite phrase. ... each limb of the phrase should be given work to do. That task is not difficult, or complicated with these two particular words, which are readily understood as conveying different meanings. However, the Parliament has chosen to use a composite phrase rather than to stipulate two distinct requirements, and therefore, as Gleeson CJ cautioned in XYZ v Commonwealth [2006] HCA25; (2006) 227 CLR532 at [19], '[t]here are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts'.

   …Both adjectives qualify the noun “support”, but they do so as a composite phrase. It is not fruitful to split them off and consider them separately, just as it is neither fruitful nor appropriate to attempt any exhaustive or authoritative judicial definition of them.

   Nevertheless, there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, 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. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.

   [15] National Disability Insurance Agency v WRMF [2020] FCAFC 79 (‘WRMF’) [149]-[151].

4. The Tribunal also needs to consider that the requested supports accommodate the participant’s particular impairments in order for them to be a participating member of the Australian community, in light of the values that are set out in the guiding principles and objects of the NDIS Act.[16]

   [16] WRMF [141]. Cited with approval in NDIA v KKTB, by her litigation representative CVY22 [2022] FCAFC 181 [129].

   Agency’s Operational guidelines

5. The Agency has issued Operational guidelines in regard to what are considered to be ‘reasonable and necessary supports for participants.’ Unless the Operational guidelines are inconsistent with the provisions or objects of the NDIS legislation, they are to be taken into account[17] in deciding what is a reasonable and necessary support for Mr Annuscheit. I have considered the NDIS Operational guidelines – ‘reasonable and necessary supports,’ ‘principles we follow to create your plan,’ ‘your plan’ and ‘creating your plan.’[18]

   [17] See SCHW and National Disability Insurance Agency [2021] AATA 591 [13] where DP Constance referred to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

   [18]Operational guidelines: ‘Reasonable and necessary supports’ on 22 September 2024; ‘Principles we follow to create your plan’ on 22 September 2024; ‘Your Plan’ on 24 September 2024; and ‘Creating your plan’ on 28 February 2025.

   EVIDENCE  

6. I have considered all the written evidence filed with the Tribunal and provided in the joint bundle, the oral evidence provided at the hearing on 16 and 22 April 2025, and the parties’ closing submissions. I will refer in my decision to some of the more salient aspects of the evidence. The fact however that I do not refer to all parts of the evidence does not mean that I have not taken all evidence before the Tribunal into account in reaching my decision.

7. I have considered Mr Annuscheit’s SOPS alongside his current circumstances, impairments and needs.

   Evidence about Mr Annuscheit

   Ms Collins

8. Ms Collins gave evidence about Mr Annuscheit that can be summarised into four broad areas: his previous circumstances, his current living arrangements, his current supports needs, and his future goals.

9. Ms Collins described Mr Annuscheit’s previous circumstances and stated he had:[19]

   ·Experienced trauma and was unable to live with his family of origin;[20]

   ·Previously worked ‘in a supported way’ around 6 hours a day as a barista in a café for around 12-months, but ‘not every day’ and he had resigned two weeks prior to moving to Ms Collins’ property and has not worked since this time; and

   ·Independently used public transport to commute to work in the café, as Centrelink ‘trained him in using the transport card.’

   [19] Oral evidence of Ms Collins.

   [20] EB-3.

10. Ms Collins summarised Mr Annuscheit’s living arrangements. He has:

    ·Resided for three years in the unit at her property with his pet cats;

    ·Recently become engaged to Ms Collins’ daughter, who lives with an intellectual impairment.[21] His fiancée resides in the ‘main house’ with her family which consists of five people; Ms Collins, her husband Mr Collins, and her son and another daughter;

    ·Support provided to him by predominately two support workers and there are around 10-12 support workers who support Ms Collins’ three children;

    ·No local informal supports, because Ms Collins and her husband are:

    ‘full-time carers and coordinate the supports for [our] three children …with extremely complex and rare disabilities, while managing [our] own serious health conditions. It is unreasonable and outside the realm of [our] capabilities to [support him];[22]

    ·Telephone contact with his family. More specifically with his:

    oBrother who pays for Mr Annuscheit’s mobile telephone plan after Mr Annuscheit transfers the money to him;

    oSister who tells him information about cultural events;

    oMother every fortnight and he last saw her around a year ago; and

    oFather every month and he last saw him around five years ago.[23]

    [21] EB-1, page 190.

    [22] Closing submissions of Ms Collins, page 3.

    [23] Oral evidence of Ms Collins.

11. Ms Collins gave evidence regarding Mr Annuscheit’s current support needs. Ms Collins stated that Mr Annuscheit has:

    ·Physical capacity to undertake tasks with ‘prompting and support to manage activities and daily routines.’ Ms Collins stated it was not a lack of motivation why Mr Annuscheit did not complete tasks rather it was due to ‘his anxieties, his OCD, being overwhelmed, not trusting himself because he forgets everything;’[24]

    ·Approximately 6 hours of 1:1 support worker assistance each day and at times during the evening when Mr Annuscheit’s fiancée’s support worker provides 1:2 support when they participate in online gaming together.

    [24] Oral evidence of Ms Collins.

12. Ms Collins observed with respect to acts of daily living, including his self-care and his self-management that Mr Annuscheit:

    ·Struggles to prepare food, maintain or clean the unit he lives in, and he struggles with managing his finances;’[25]

    ·Sleeps around 7 to 8 hours per night but requires direction to maintain sleep hygiene as ‘he wakes between 9 and 10am and goes to bed at 1 or 2am;’

    ·Takes medications to generally improve his mood and functioning and receives psychological treatment via telehealth and attends an OT when required;

    ·Cares for and feeds his cats from the ‘once-a-week automatic feeder;’

    ·Manages his own bank account and uses PayPal to make purchases;

    ·Pays weekly board to Ms Collins and Mr Collins and receives the Disability Support Pension;[26] and

    ·Completed a Certificate Level III in hospitality but that ‘I was up at 1am in the morning completing it with him because he couldn’t manage it.’[27]

    [25] EB-3, page 2.

    [26] EB-1, page 204.

    [27] Ms Connolly reported that Mr Annuscheit completed a Certificate IV in hospitality, with ‘a significant level of support’ from Ms Collins. EB-1, page 200.

13. With respect to social interaction and communication, Ms Collins observed that alongside his support workers, Mr Annuscheit was able to:

    ·Attend weekly bowling, since around April 2023, with Mr Collins, their son and a support worker, and he plans to continue this activity;

    ·Play online games with his fiancée (usually with her support worker in attendance);

    ·Use his computer in his unit for: online gaming, making online purchases, trading Pokémon cards, using YouTube and sending emails;

    ·Speak with people who are familiar to him such as his family and can use his own mobile phone that Ms Collins ‘does not monitor’;[28]

    ·Obtain his provisional driver’s licence and he drives ‘short trips to a local café once or twice a month, to the local shops and occasionally to Bunnings…but he is very anxious about driving;’

    ·Go on a walk with a support worker; and

    ·Complete some outdoor work such as: digging holes for plants, raking leaves, and cleaning up horse manure.

    [28] Oral evidence of Ms Collins.

14. With respect to behaviours of concern, Ms Collins observed that Mr Annuscheit has:

    ·Difficulties socialising because ‘his daily life has been marked by panic attacks, social isolation and an inability to manage basic tasks… he has hidden in cupboards, under desks or been found in bed crying uncontrollably;’[29]

    ·‘Taken off or ‘absconded’ when he is in a state of confusion with heightened anxiety’. Ms Collins explained it is less frequent now because ‘he trusts us a little more…but that it can blow out at any given time;’

    ·Suicidal ideations around once a month; and

    ·Previously received support from a behavioural support practitioner that was ceased around 6-12 months ago.

    [29] EB-3, page 4.

15. Ms Collins confirmed that Mr Annuscheit’s current SOPS contains the following six goals:[30]

    ·I would like to be linked into and maintain my linkage with my Indigenous culture;

    ·I would like to build my independence in daily living tasks and self-care tasks;

    ·I would like to gain employment;

    ·I would like to build my skills with making and maintaining friendships;

    ·I would like to obtain my driver’s licence; and

    ·I would like to develop the skills and techniques to manage my social anxiety and engage in the community.

    [30] EB-4. Oral evidence of Ms Collins.

16. Ms Collins maintained that Mr Mate’s recommendations were:[31]

    ·‘Inadequate, at 9.5 hours per week of support, he needs 12 hours per day;’

    ·‘Not an accurate reflection of [Caleb’s] daily reality as written about by Ms Wheib, Ms Chang, Ms Connolly, and Ms Fay.[32]

    [31] EB-3, page 4.

    [32] EB-3, page 4.

17. Ms Collins contended that Mr Mate did not provide an impartial report because he did not:[33]

    ·Consider the filed material that impacted on Mr Annuscheit’s community interactions especially regarding Mr Annuscheit’s high levels of dependence, dysregulation, and social isolation;

    ·Consider Mr Annuscheit’s daily support timetable and weekly planner;

    ·Report Mr Annuscheit’s coffee machine was ‘mouldy,’ that the fridge had spoiled food in it, and the ‘washing machine had mouldy clothes in it.’

    [33] Closing submissions of Ms Collins, pages 1-3.

18. In summary Ms Collins stated that Mr Annuscheit has difficulties with: independently undertaking some activities of daily living, emotional regulation, communication and ‘executive dysfunction’ as noted in Ms Connelly’s and Ms Crane’s ‘detailed reports’.[34]

    [34] Closing submissions of Ms Collins, page 1. See also EB-3.

    Ms Jessee Jinnette, support worker

19. Ms Jinnette is a support worker of 5 years standing with the Collins family, and she provided an undated two-page letter of recommended support for Mr Annuscheit.[35]

    [35] EB-1, pages 284-285.

    Dr Nektarios Alexi, psychologist, Adult Autism Assessment Clinic

20. On 15 December 2022, psychologist Dr Alexi assessed Mr Annuscheit and produced an autism spectrum disorder assessment report on 24 January 2023.[36]

    [36] EB-1, pages 21-33.

21. Dr Alexi conducted assessments for Mr Annuscheit including the:

    ·Ritvo Autism Asperger Diagnostic Scale-Revised (‘RAADS-R’) which is a self-report instrument consisting of 80 questions designed for adults.’[37] Dr Alexi considered his results were ‘indicative of an autism spectrum disorder;’ and

    ·Adaptive Behaviour Assessment System (‘ABAS-3’) which is a self-rated global estimate of adaptive functioning. Dr Alexi reported that Mr Annuscheit’s adaptive behaviours are extremely low and significantly below the standard expected for his age and cognitive abilities.

    [37] EB-1, page 24.

    Ms Samantha Crane, Occupational Therapist (‘OT’), Gain Occupational Therapy

22. On 30 March 2023, Ms Crane conducted an online functional capacity assessment for Mr Annuscheit’s application to become a participant of the scheme.[38]

    [38] EB-1, T4, pages 34 -57.

23. Ms Crane assessed Mr Annuscheit using the World Health Organisation Disability Assessment Schedule 2.0 (‘WHODAS’). Ms Crane documented that Mr Annuscheit’s overall disability level is at 58% and it impacts his:[39]

    ·Learning/cognition with an overall score of 70% with severe difficulty concentrating on something for 10 minutes;

    ·Mobility with an overall score of 25% with severe difficulty getting out of the home;

    ·Communication with an overall level of 70% with severe difficulty generally understanding what people say;

    ·Social interaction with an overall level of 75% with extreme difficulty dealing with people he does not know;

    ·Self-care at an overall level of 43% with severe difficulty staying by himself for a few days; and

    ·Self-management at an overall level of 68% with severe difficulty taking care of household responsibilities;

    [39] EB-1, pages 38 – 48.

24. Ms Crane reported that Mr Annuscheit was able to:[40]

    ·Independently maintain self-care aside from verbal prompting to initiate showering, teeth and hair-brushing;

    ·Receive medications from Ms Collin’s management;

    ·Pay the bill for his telephone himself with verbal prompting;

    ·Undertake regular walks…and reports full lower limb range of movement;’[41] and

    ·Independently transfer and mobilise inside and outside.[42]

    [40] EB-1, T4.

    [41] EB-1, page 38.

    [42] EB-1, page 41.

25. Based on her assessments, Ms Crane recommended that Mr Annuscheit receive:

    ·‘6 hours of 1:1 support daily for community access and/or in home-support daily for self-cares to increase opportunities to develop independence’.[43]

    Ms Leila Wheib, behaviour support practitioner and psychotherapist, Supportive Choices Pty Ltd, and the Good Place Psychotherapy & Behaviour Consulting

    [43] EB-1, page 53.

26. Ms Wheib assessed Mr Annuscheit via telehealth and provided two letters of support dated 19 September 2023[44] and 19 August 2024.[45] Ms Wheib recommended Mr Annuscheit receive:[46]

    ·An increase in support worker allocation to 12 hours daily, to assist [him] with ADLs, safe routines, developing his social skills and to increase his capacity to participate in community and cultural activities as per his NDIS stated goals; and

    ·Funding for short term accommodation for a minimum of 21 days per year, to reduce the high risk of placement breakdown and to increase [his] independence through community participation and to connect with ‘activities related to his Aboriginal culture.’

    [44] EB-1, page 183.

    [45] EB-1, page 230.

    [46] EB-1, page 187.

27. Ms Wheib wrote that Mr Annuscheit’s ‘deliberate self-harm and suicidal ideation pose an acute risk of physical harm to [him]…[47]

    [47] EB-1, pages 231-232.

    Ms Ellen Chang, psychologist, Elysium psychology

28. Ms Chang provided a letter of support for Mr Annuscheit on 20 January 2024.[48] Ms Chang reported Mr Annuscheit had attended seven telehealth treatment sessions with her and she recommended:

    ·‘Although this is beyond my scope of support; in my professional opinion [he] requires urgent daily 1:1 ongoing support from a support worker with a minimum of 12 hours a day 7 days a week; and

    ·He would benefit from receiving support through short term accommodation with 21 days per calendar year to assist him in building his independent living skills.

    [48] EB-1, page 194.

    Ms Amy Connolly, occupational therapist, Recovery In Mind Occupational Therapy

29. Ms Connolly provided a 4 April 2024 report where the assessment was conducted through:

    ·Two face-to-face appointments at home; ‘one with a support worker and carer [Ms Collins] present’. The other was with Mr Annuscheit alone.

    ·Two telehealth sessions with [his] carer Ms Collins as [she] reported [he] becomes overwhelmed with therapy sessions and requires extra time to recover…the collateral was gathered from [Ms Collins].[49]

    [49] EB-1, page 202.

30. Ms Connolly assessed Mr Annuscheit with the WHODAS on 25 March 2024 and she recorded an overall disability score of 81.53% that impacts his:[50]

    ·Learning/cognition or understanding with a level of 66.67%;

    ·Mobility/getting around with a level of 85%;

    ·Communication/getting along with people with a level of 75%;

    ·Social interaction with a level of 75%;

    ·Self-care at a level of 87.5%; and

    ·Self-management at a level of 100%.

    [50] EB-1, page 205.

31. Based on her assessments, Ms Connolly recommended that Mr Annuscheit receive: [51]

    ·12 hours per day of support worker assistance for:

    odaily personal activities of showering and dressing;

    ohousehold tasks of cleaning, laundry, yard maintenance;

    opreparation and cooking of meals; and

    odaily living tasks of organising medical appointments, sorting mail and support to pay bills.

    [51] EB-1, page 221.

32. Ms Connolly reported that the supports were recommended to ‘prevent carer burnout’ and ensure healthy relationships and that ‘once provided with opportunity to increase his skills this level of support will reduce over time’.[52]

    [52] EB-1, page 221.

    Ms Felicity Fay, Occupational Therapist, Take Charge Assessment & Therapy

33. Ms Fay assessed Mr Annuscheit via telehealth (with Ms Collins in attendance) on 2 October 2024 and provided a 17 October 2024 report.[53]

    [53] EB-1, pages 236 – 259.

34. Ms Fay provided results of a WHODAS for Mr Annuscheit with an overall disability score of 66% with severe ratings in ‘cognition’ and ‘participation’ that impacts his:[54]

    ·Learning/cognition or understanding with a level of 80%;

    ·Mobility/getting around with a level of 25%;

    ·Communication/getting along with people with a level of 67%;

    ·Social interaction with a level of 75%;

    ·Self-care at a level of 50%; and

    ·Self-management at a level of 100%.

    [54] EB-1, page 239.

35. Based on her assessments, Ms Fay recommended that Mr Annuscheit receive:

    ·Up to 12 hours per day 7 days per week of support worker assistance for all personal activities, meal preparation, cleaning and home maintenance; and

    ·‘28 days per annum of STA assistance’ to ‘preserve his informal support relationships…develop his skills and engage with others socially in keeping with his NDIS goals.’[55]

    [55] EB-1, page 255.

    Mr Elliott Mate, Occupational Therapist, Axiom Pty Ltd

1. Mr Mate conducted an in-person, independent functional capacity assessment of Mr Annuscheit on 10 April 2024 and provided a report dated 13 May 2024.[56]

   [56] EB-1, H56, page 518.

2. Mr Mate has eight years of experience as an occupational therapist plus four years of experience as a disability support worker for people with psychosocial disabilities.[57] Mr Mate confirmed that he spent the first third of his assessment with Mr Annuscheit conducting an interview with him and that he had read and considered the documentary material relied on by Mr Annuscheit.[58] Mr Mate summarised Mr Annuscheit’s functional incapacities[59] alongside his diagnoses, reported symptoms, current medication regimen and therapies and also noted how his support worker funds are currently utilised.[60]

   [57] EB-1, page 555. Oral evidence of Mr Mate.

   [58] EB-1, page 551. Oral evidence of Mr Mate.

   [59] EB-1, page 515.

   [60] EB-1, page 518. See also pages 512-515.

3. In summary Mr Mate observed that Mr Annuscheit demonstrated:

   ·Modified independence in the area of learning and ‘with some compensatory techniques he has capacity to learn new information.’[61] Mr Mate provided the example that Mr Annuscheit collects Pokémon cards and reported selling and trading them online, and using the internet for online shopping;[62]

   ·Independence in physical mobility;

   ·Independence in communication with ‘emotional intelligence and effective communication skills to follow and answer questions’ and ‘he communicated effectively’.[63]

   ·The need for modified support in the area of social interaction and he based this on his observations that Mr Annuscheit ‘did not engage in challenging behaviours during the assessment. He did not appear distressed or withdrawn as reported by Ms Wheib, nor appear nervous or as experiencing a panic attack;’[64]

   ·Independence with self-care, although Mr Mate acknowledged that Mr Annuscheit:

   oRequires ‘some prompting support. He has physical capacity to complete self-care and domestic tasks but at times lacks the motivation to complete the tasks so he could be encouraged by his support workers to attend to cleaning and laundry tasks;’[65] and

   oWould benefit from OT intervention and support worker collaboration to build capacity for meal preparation, self-care and domestic tasks.[66]

   ·The need for modified support in the area of self-management.[67] Mr Mate opined that Mr Annuscheit likely had a greater capacity for self-management and household tasks than he was noted to be able to perform by Ms Collins.

   [61] Oral evidence of Mr Mate. EB-1, page 525.

   [62] EB-1, page 525.

   [63] EB-1, pages 514, 522 – 531. Oral evidence of Mr Mate.

   [64] EB-1, page 524.

   [65] Oral evidence of Mr Mate.

   [66] EB-1, page 528.

   [67] EB-1, page 530.

4. Mr Mate opined that ‘1:1 support at 12 hours per day for Mr Annuscheit is more than likely going to be detrimental to his level of independence… because he has the potential to build capacity to perform many of these tasks independently. Additional support could increase his reliance on others and further contribute to the functional decline that has been reported after Ms Crane’s report, rather than increase his independence. His supports should be used to build his capacity, not increase his reliance.’[68]

   [68] Oral evidence of Mr Mate. EB-1, pages 532, 545, 546.

5. Based on his assessment, Mr Mate recommended Mr Annuscheit receive funding for:

   ·Social interaction with an experienced mental health support worker to build up tolerance for accessing the community for 3 hours per week;[69]

   ·Self-care with an experienced support worker to collaborate with an OT to support Mr Annuscheit with goal setting and planning his day to gradually develop [his] capacity for life skills, for 5 hours per week;[70]

   ·Self-management with a support worker to assist him with tasks, such as scheduling appointments and paying bills for 1.5 hours per week.[71] Mr Mate opined that Mr Annuscheit’s current level of funding ‘could and should be used more effectively to build his independent living skills, both at home and in the environment by using ‘visual aids, calendars, checklists and support worker encouragement, which could be gradually reduced over time. This should be trialled prior to increasing Mr Annuscheit’s level of funding’;’[72] and

   ·Continued engagement with his psychologist or Behaviour Support Practitioner[73] and use of Mental Health services in his report in order to address the behaviours of concern raised by Ms Collins.

   [69] Oral evidence of Mr Mate. EB-1, pages 509, 523-524.

   [70] EB-1, page 509.

   [71] EB-1, page 510.

   [72] EB-1, page 546. Oral evidence of Mr Mate.

   [73] EB-1, pages 524-525.

6. Mr Mate did not recommend STA for Mr Annuscheit.[74] Mr Mate opined that Mr Annuscheit’s current level of funding for STA could be better utilised through increasing his day-to-day living skills so that he may be able to ‘develop the capacity to undertake those trips independently in the future.’

   CONSIDERATION

   [74] EB-1, pages 532-533. Also pages 548-549.

   Other diagnoses

7. I accept that on 9 May 2023 Mr Annuscheit was granted access to the scheme on the basis that he met the disability requirements in respect of the neurological impairments arising from his diagnosis of ASD, Level 3.[75]

   [75] Agency closing submissions [4]. Dr Alexi, EB-1, page 326.

8. On balance, I accept the evidence before me that Mr Annuscheit is likely to have been diagnosed with ADHD, PTSD, depression and GAD, the ‘other diagnoses’ and that he experiences symptoms from these diagnoses.

9. I acknowledge the evidence of Ms Collins and Ms Jinnette, however it does not assist me to determine whether the requested supports are reasonable and necessary in line with the statutory criteria.

10. I accept the Agency submissions that there is insufficient evidence to demonstrate that Mr Annuscheit has impairments attributable to the ‘other diagnoses’ which would satisfy either section 24 or section 25 of the NDIS Act. I cannot be satisfied on the evidence before me of the extent that Mr Annuscheit has impairments from these diagnoses nor that the conditions have caused the loss of, or damage to Mr Annuscheit’s intellectual, cognitive, psychosocial or physical function for the purposes of section 24(1)(a) of the NDIS Act. For this reason, the reported functional impairments attributed to ‘other diagnoses’ will not be taken into account when assessing Mr Annuscheit’s disability-related support needs for the purpose of deciding what supports are “reasonable and necessary supports” under subsection 34(1)(aa) of the NDIS Act.

11. I conclude that Mr Annuscheit has neurological impairments attributable to ASD when he met the ‘disability requirements’ under section 24 of the NDIS Act. It is only these impairments only which will be taken into account when assessing Mr Annuscheit’s disability-related support needs and when deciding whether the requested supports are “reasonable and necessary supports” under s 34(1) of the NDIS Act.

    Requested support evidence

12. I consider that Ms Collins gave a sincere and forthright account regarding her observations of Mr Annuscheit and that she applied herself conscientiously to the task of representing him in this application. It was apparent that Ms Collins is a strong advocate for Mr Annuscheit, and that she cares about his wellbeing.

13. I accept Ms Collins’ evidence that Mr Annuscheit experienced trauma and many difficulties during his adolescence, and he is now unable to reside with his biological family.

14. Mr Annuscheit’s report writers were not available to give evidence at the hearing, therefore their reports were untested beyond the broad recommendations made therein.

15. I note that Ms Wheib and Ms Chang did not outline the clinical reasoning for their respective opinions.

16. I note the different reports regarding Mr Annuscheit’s function from the report writers. Of the three occupational therapist reports provided by Mr Annuscheit, it was unclear why Ms Crane’s recommendation of 6 hours of support worker funding per day for Mr Annuscheit was half of that recommended by later report writers’ recommendations. I note also that Ms Connolly and Ms Fay’s broad recommendations did not provide a clear path of their clinical observations and reasoning of Mr Annuscheit’s functional capacity and how that related to the specific support needs they recommended. It was unclear how they arrived at their respective composition of support level recommendations.

17. In summary I accept the Agency contention that the methodology of Mr Annuscheit’s reports makes the reliability of their recommendations unclear.

18. I am satisfied that Mr Mate was honest and truthful and gave written and oral evidence in accordance with his obligations as an expert witness. I am satisfied that he understood his evidence was to be independent and not as an advocate for either the applicant or the Agency. I do not accept Ms Collins’ submissions that Mr Mate provided his evidence in a biased way that ‘favoured the NDIA’s position.’[76] I found Mr Mate to be a credible expert witness.

    [76] Closing submissions of Ms Collins, page 2.

19. I do not accept Ms Collins’ submission that Mr Mate was dismissive of other professional reports. I give more weight to Mr Mate’s evidence where he outlined the inconsistencies of his observations with other reports that were filed. I accept that Ms Collins disagreed with Mr Mate’s report and evidence, but I am not satisfied there were probative, evidence-based reasons for me to disregard Mr Mate’s evidence. I found Mr Mate’s evidence to be independent, and evidence based.

20. I am persuaded by Mr Mate’s reasoning that he based his assessment on his clinical observations of Mr Annuscheit’s functional capacity, and I find that his professional observations were not understated or overstated regarding Mr Annuscheit’s capacity.

21. On the evidence, I am satisfied that Mr Annuscheit:

    ·Is able to manage his self-care needs with some prompting and he is independent in toileting, bathing, dressing and feeding;

    ·Is independent in his mobility and can physically undertake his self-care and domestic tasks but may lack motivation to do these tasks at times and may require prompting at times.[77] I accept Mr Mate’s recommendation that Mr Annuscheit could more effectively use his support to increase his self-care skills and ability to perform domestic tasks;[78]

    ·Is able to independently communicate.[79] I am persuaded by Mr Mate’s evidence that Mr Annuscheit navigated social interactions with no signs of behaviours of concern reported by other practitioners;[80]

    ·Has modified independence in learning as he demonstrated he could make coffee and create foam art and had expressed a desire to return to work. I accept Ms Collins’ submission that Mr Annuscheit requires support in learning to clean and take care of equipment so that it can be kept clean from mould;

    ·Is able to socially interact with access to the internet, playing online computer games, and regularly attending bowling with other people; and

    ·Is able to self-manage by paying ‘money for board’ to Ms Collins each week and also to reimburse his brother for his mobile telephone plan.

    [77] EB-1, pages 525-527.

    [78] EB-1, pages 527, 529.

    [79] EB-1, page 514. Oral evidence of Mr Mate.

    [80] EB-1, pages 524, 546-547.

22. It was uncontested that Mr Annuscheit requires support worker assistance. It is the quantum of the funding that is in contention. I turn now to consider Mr Annuscheit’s two requested supports under headings.

    Support worker hours

23. I am satisfied when considering the NDIS Supports Transitional Rules that funding for support worker assistance is a support contemplated by item 14 in Schedule 1 as being a NDIS Support for section 10 of the NDIS Act.

24. I accept Ms Collins’ evidence that she and her husband are fulltime carers for their three adult children who are all scheme participants[81] and that they are not Mr Annuscheit’s informal carers.[82]

    [81] EB-3, page 2.

    [82] Closing submissions of Ms Collins, page 3.

25. I accept Ms Collins’ evidence that Mr Annuscheit receives around 6 hours of support worker assistance each day. It was unclear exactly how much informal support Mr Annuscheit currently receives each day from Ms Collins and Mr Collins.

26. I do not accept Ms Collins’ evidence that Mr Annuscheit ‘needs to be monitored continuously and overseen.’[83]

    [83] Oral evidence of Ms Collins.

27. I accept the Agency submissions that Ms Collins was unable to explain how an increase in support worker hours would assist Mr Annuscheit to pursue his goals of increased independence, employment and build his capacity to become less reliant on support.[84]

    [84] Agency closing submissions [25].

28. I prefer the evidence of Mr Mate as his report was based on clear observations of Mr Annuscheit and it was supported by specific, rational clinical reasoning. Mr Mate set out his reasoning for the funding of 9.5 hours per week of support worker assistance (expected to reduce over time, owing to building independence and capacity) comprised of:[85]

    o3 hours per week for social interaction;

    o5 hours per week for self-care; and

    o1.5 hours per week for self-management.

    [85] EB-1, pages 534 – 536.

29. I accept Mr Mate’s evidence that Mr Annuscheit:

    ·Has a current supports program which ‘appeared to be informally arranged, and the current funding is not being utilised correctly or effectively’[86] in pursuit of Mr Annuscheit’s goals;[87]

    ·Requires an occupational therapist to support him with achieving some of his goals to establish a routine; and

    ·Could also benefit from capacity building therapy to increase his independence[88] by using visual aids, calendars, checklists and support worker encouragement which could then see his supports being reduced over time.[89]

    [86] Oral evidence of Mr Mate. EB-1, page 518.

    [87] EB-1, page 531.

    [88] EB-1, page 515.

    [89] EB-1, pages 509-511.

30. I am persuaded by Mr Mate’s evidence that Mr Annuscheit does not require funding for 12 hours of support worker assistance a day based on his current functional capacity because the additional support:

    ·Poses a risk that it may not allow him to develop the skills to work towards his goals[90] and hamper his efforts at being restored to his previous level of capacity as reported by Ms Crane;

    ·May be detrimental to his potential to increase his functional capacity[91] by making him more reliant on support and less independent; and

    ·Is more appropriate for a person who has a high risk of self-harm, and it is not compatible with Mr Annuscheit’s presentation.

    [90] Goals also focus on independence and seeking employment and upholds the objectives and purposes of the NDIS Act. See section 3(1)(c) and (g) of the NDIS Act objectives regarding independence.

    [91] Oral evidence of Mr Mate.

31. I note Rule 5.1(a) of the supports rules states that a support will not be provided or funded under the scheme if it is likely to cause harm to the participant. I do not consider it is appropriate to increase Mr Annuscheit’s funding for support worker assistance in the context of the current provision of funding for support workers of 9.5 hours per week. Mr Annuscheit’s current funding for support worker assistance is reasonable and necessary to meet his support needs that arise from the neurological impairments for which he was granted access to the scheme pursuant to section 34(1)(aa) of the NDIS Act.

32. I am not satisfied on the evidence that Mr Annuscheit requires a higher level of support worker assistance as it is likely to place him at a higher risk of dependence and a diminishing of his independence. Therefore, it does not follow that the extra support would be effective and beneficial.[92]

    [92] Section 34(1)(d) of the NDIS Act.

33. I note the reasonable and necessary support operational guideline states that reasonable and necessary supports should:

    Support you to pursue your goals and maximise your independence

    Support you to live independently and to be included in the community as a fully participating citizen

    Develop and support your capacity to do things that help you participate in the community and in employment.[93]

    [93] Operational guidelines – reasonable and necessary supports (22 September 2024), page 17.

34. I am not satisfied on the evidence that additional support worker hours will assist Mr Annuscheit in pursuing or maximising his goals and in particular his goals of independence and employment. I am persuaded by Mr Mate’s evidence that additional support hours funding is likely to increase Mr Annuscheit’s ‘dependence.’

35. I note that it is open to Mr Annuscheit to further pursue an application for increased support worker hours at any future time, if required.

    Short term accommodation 21 days per year including respite

36. Mr Annuscheit is currently funded for seven days per year of STA and he seeks an increase to 21 days per year to ‘visit his family members, go on cultural trips or snow trips… and even road trips with his girlfriend to visit new places.’[94] In closing submissions Ms Collins contended the STA was for Mr Annuscheit to ‘immerse himself in his cultural heritage.’[95]

    [94] Oral evidence of Ms Collins. EB-3, page 4. Ms Collins completed ‘Caleb’s daily support hours’ regarding STA.

    [95] Ms Collins closing submissions, page 3.

37. I note that Mr Annuscheit has no current plans to use his STA funding or participate in any planned cultural activities.[96]

    [96] Oral evidence of Ms Collins. Agency closing submissions [26].

38. Ms Crane, Ms Connolly and Mr Mate respectively did not recommend STA for Mr Annuscheit. Ms Wheib and Ms Chang both made broad recommendations for the quantity of STA requested by Mr Annuscheit. Ms Fay made a broad recommendation as well and recommended 28 days of STA funding.[97]

    [97] EB-1, page 255.

39. I prefer the evidence of Mr Mate that Mr Annuscheit’s’ current funding could be better utilised to support him in building his capacity so that he could focus on independent living skills and that Mr Annuscheit has ‘capacity to develop the skills to go on a 3-week holiday with full independence rather than a short-term accommodation stay in which he would receive a high level of assistance.’[98]

    [98] EB-1, pages 532-533 and 548-549.

40. I note that STA is generally an NDIS support, when providing either respite to carers or capacity building for participants. On the evidence it was unclear regarding the manner in which the STA is intended to be used by Mr Annuscheit.  

41. I am not satisfied that there is sufficient evidence for me to be positively satisfied that an additional 14 days of STA represents value for money and will be effective and beneficial for Mr Annuscheit. I refer to subsection 34(1)(c) of the NDIS Act and Rule 3.1(c) of the Supports Rules and note that insufficient evidence was provided to demonstrate that the requested additional support would be likely to reduce the cost of Mr Annuscheit’s future supports in the long term.

42. This means that section 34(1) of the NDIS Act is not satisfied with respect to the request for an increase in STA funding.

43. On the evidence provided, I am satisfied that Mr Annuscheit’s current seven days of STA funding remains a reasonable and necessary support for him pursuant to section 34(1) of the NDIS Act.

44. It would be open to Mr Annuscheit to request the Agency reconsider future funding of this support if required.

45. The decision under review is affirmed pursuant to section 105(a) of the ART Act.

I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of General Member S Smith.

……..…[SGD]…..........

Associate

12 June 2025

Dates of hearing:  16 and 22 April 2025

Applicant’s Representative:               Ms E Collins

Counsel for the Respondent:         Ms C De Marco

Solicitors for the Respondent:           Ms E Baggett, Mills Oakley

Ms M Balinski, Minter Ellison