ATIF and National Disability Insurance Agency (NDIS) [2025] ARTA 821 (24 June 2025)
Applicant/s: ERUM ATIF
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/3447
Tribunal:Senior Member J Collins
Place:Brisbane
Date:24 June 2025
Decision: Pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is affirmed.
................[SGD]................
Senior Member J Collins
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME –- Autism – PTSD - Depression – Anxiety disorder - psychology - physiotherapy and hydrotherapy - occupational therapy - mental health social worker counselling - dietician - art therapy - music therapy - exercise physiology - equine therapy - reformative pilates – float therapy - remedial massage - trauma sensitive yoga - podiatry including foot care - audiology - diabetes management - wound management - plan management - self-management AT - software, Apps training compliance - specialist support coordination - complex support needs pathway planning delegate support - CB Social. Community, Civic participation activities including and not limited to innovative Community participation, transitions in life, daily and life skill building, group or centre based - Tenancy assistance - Assistance with coordination and management of life transitions before and after hospital admissions and day surgeries - travel and travel arrangements - parental responsibilities - personal daily activities - meal preparation and delivery - house maintenance - yard maintenance – cleaning – laundry - social and community participation - noise cancelling headphones - smart watch - smart weight scales - smart lighting -smart security - smart air quality sensors - smart heating and cooling systems - smart hygrometer including leak alarm - smart locks - smart cameras - smart chargers - smart blinds/curtains - smart fridge - smart washing machine - ergonomic furniture - small mobility aids - smart kitchen appliances - bathroom supports in shower, bathtub, towel and clothes heater, bidet - assistive cleaning equipment, including robotics and smart technology - ergonomic gardening equipment - smart voice activated speakers - adapted e-bike - air filters - subscriptions for recreation and hobbies – STA - ergonomic disability hair shaver - ergonomic nail clippers - ergonomic hair clipping device and shower tool - continence supplies - personal protective equipment - personal hygiene products - reasonable and necessary supports – consideration of section 34 National Disability Insurance Scheme Act 2013 (Cth)- decision affirmed.
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act) (Cth)
Administrative Review Tribunal Act 2024 (Cth) s105
National Disability Insurance Scheme Act 2013 (Cth) s10, s33, s34, s35, s99, s103
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)- s129
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)
Cases
G v Minister for Immigration and Border Protection [2018] FCA 1229
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
XYZ v Commonwealth [2006] HCA25; (2006) 227 CLR 532
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577
BIJD v National Disability Insurance Agency [2018] AATA 2971Secondary Materials
NDIS – Operational Guidelines – Reasonable and necessary supports
NDIS- Operational Guidelines – Short term accommodation
Statement of Reasons
1. Ms Erum Atif, a 40 year-old woman, is a participant in the National Disability Insurance Scheme (‘the scheme’).
2. Ms Atif became a participant in the scheme on 4 January 2023.
3. On 17 May 2023, Ms Atif applied to the Administrative Appeals Tribunal (‘the AAT’) for a review of the Agency’s internal review decision made on 27 April 2023 (‘the decision under review’). In support of her application to the AAT Ms Atif stated:
‘All requested supports were declined. I do not agree with the decision made by the NDIA.’
4. From 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), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise existing applications.
5. Ms Atif attended the hearing and was self-represented. The Agency was represented by Ms Jennifer Flinn of counsel instructed by Moray and Agnew Lawyers.
ISSUES
6. For the purposes of the Tribunal’s review, Ms Atif sought funding for the following 64 supports:
·Psychology -15 hours;
·Physiotherapy and hydrotherapy - 38 hours per year;
·Occupational therapy - 112 hours per year;
·Mental Health Social Worker Counselling – 60 hours per year plus care team meetings and report writing;
·Dietician support – 16 hours per year plus care team meetings and report writing;
·Art therapy - 26 hours per year plus care team meetings and report writing;
·Music therapy - 26 hours per year plus care team meetings and report writing;
·Exercise physiology – 12 sessions per year;
·Equine therapy – 6 sessions per year;
·Reformative pilates – 6 sessions per year;
·Float therapy – 6 sessions per year;
·Remedial massage by a registered physiotherapist – 6 sessions per year;
·Trauma sensitive yoga – 6 sessions per year;
·Podiatry including foot care – 6 sessions per year;
·Audiology – 2 sessions per year plus flexible funding for assistive technology - $2,500.00;
·Diabetes management – 1 hour per day plus staff training;
·Wound management – 1 hour per day plus staff training;
·Plan management;
·Self-Management AT, software, Apps, training, compliance;
·Specialist support coordination and psychosocial recovery coaches – 200 hours per year;
·Complex support needs pathway planning delegate support;
·CB Social. Community, Civic participation activities including and not limited to innovative Community participation, transitions in life, daily and life skill building, group or centre based;
·Tenancy assistance;
·Assistance with coordination and management of life transitions before and after hospital admissions and day surgeries;
·Assistance with travel and travel arrangements;
·Assistance with managing, coordinating and performing parental responsibilities – 2 hours per day per child;
·Assistance with daily personal activities - 4 hours per day;
·Assistance with meal preparation and delivery - 4 hours per day;
·Assistance with household tasks - house maintenance - 6 hours per month;
·Assistance with yard maintenance – 4 hours per month;
·Assistance with cleaning – 6 hours per day;
·Assistance with laundry – 3 hours per day;
·Assistance with social and community participation – 4 hours per day;
·Noise cancelling headphones;
·Smart watch;
·Smart weight scales;
·Smart lighting;
·Smart security;
·Smart air quality sensors;
·Smart heating and cooling systems;
·Smart hygrometer including leak alarm;
·Smart locks;
·Smart cameras;
·Smart chargers;
·Smart blinds/curtains;
·Smart fridge;
·Smart washing machine;
·Ergonomic furniture;
·Small mobility aids;
·Smart kitchen appliances;
·Bathroom supports in shower, bathtub, towel and clothes heater, bidet;
·Assistive cleaning, equipment, including robotics and smart technology;
·Assistive and ergonomic gardening equipment;
·Smart voice activated speakers;
·Adapted e-bike;
·Air filters;
·Subscriptions for recreation and hobbies;
·Respite STA;
·Ergonomic disability hair shaver;
·Ergonomic nail clippers;
·Ergonomic hair clipping device and shower tool;
·Continence supplies;
·Personal protective equipment; and
·Personal hygiene products;
7. The issues before the Tribunal are whether these supports are ‘reasonable and necessary supports’ under section 34 of the National Disability Insurance Act 2013 (‘NDIS Act’).
8. On 3 October 2024 and prior to the completion of this review, the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (‘the Amending Act’) made a range of ‘amendments’ to the NDIS Act.[1] These amendments will apply to this review.
[1] Section 129 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024.
THE NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 (CTH)
9. Section 34 of the NDIS Act identifies what constitutes a ‘reasonable and necessary’ support under the scheme.
10. At the time of the application to the AAT, section 34 of the NDIS Act provided 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:
(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 most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i)as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(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)(a) to (f).
11. On 3 October 2024, and prior to the completion of this review, the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (‘the Amending Act’) made a range of ‘amendments’ to the NDIS Act.
12. These amendments in respect of the requirements pursuant to section 34 of the NDIS Act will apply to this review.[2]
[2] Section 129 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024
13. Section 34 of the NDIS Act, as amended, provides as follows (emphasis of amendments added by the Tribunal):
Reasonable and necessary supports
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
· (aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is an NDIS support for the participant.
(g)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 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). (emphasis of amendments)
14. Subsection 34(1) of the NDIS Act is cumulative and therefore all the criteria must be met.
15. Paragraph 34(1)(aa) of the NDIS Act, which is an amendment, imposes an additional requirement of the criteria. This additional requirement is the consideration of whether the support is necessary to address the needs of Ms Atif which arise from the impairment/s for which she meets the disability requirements.
16. Subsection 34(1)(f) of the NDIS Act is also an amendment; however, it is a replacement of an ‘old provision’ with a ‘new provision’.
17. This new provision of subsection 34(1)(f) of the NDIS Act requires that the support is an ‘NDIS support’.
18. Also relevant to this review is the inclusion of section 10 to the NDIS Act, made pursuant to the Amending Act. Section 10 of the NDIS Act provides a definition of what constitutes an ‘NDIS Support’ for the purposes of subsection 34(1)(f) of the NDIS Act (as amended). Section 10 of the NDIS Act provides 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.
(h) 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.
(i) 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 ( that 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.
(j) 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.
(k) Note 1: A determination may be revoked under subsection 33(3) of the Acts Interpretation Act 1901.
(l) 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.
19. Subsection 34(2) of the NDIS Act provides that the NDIS Rules may prescribe methods or criteria to be applied, or matters to which the CEO must have regard, in deciding whether the criteria under subsection 34(1) of the NDIS Act are met in respect of a requested support.
20. Section 35 of the NDIS Act provides for the making of rules in relation to prescribing reasonable and necessary supports or general supports that will not be funded or provided under the NDIS. The relevant rules in respect of this review are the:
(a)National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘Supports Rules’); and
(b)National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (‘Transitional Rules’).
21. Schedule 1 to the Transitional Rules identifies supports that are NDIS supports unless otherwise provided, for the purposes of subsection 10(1) of the NDIS Act. Likewise, Schedule 2 to the Transitional Rules identifies supports that are generally not NDIS supports for the purposes of subsection 10(1) of the NDIS Act.
22. In McGarrigle v National Disability Insurance Agency[3] at [43], Mortimer J (as Her Honour then was) made the following observations in respect of these rules:
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.
[3] McGarrigle v National Disability Insurance Agency [2017] FCA 308 (‘McGarrigle’)
23. The phrase ‘reasonable and necessary’ is not defined in the Act. It is a composite phrase and should be considered as such. In McGarrigle, Mortimer J also stated as follows:[4]
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.
[4] Ibid at [91]
24. The Full Court in National Disability Insurance Agency v WRMF[5] also considered the meaning of reasonable and necessary supports, and stated as follows [149]-[151]:
The phrase is a composite phrase. We accept the Agency's submissions that 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 CLR 532 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. (Tribunal emphasis)
OPERATIONAL GUIDELINES
25. The Agency issues Operational Guidelines in relation to what are considered ‘reasonable and necessary supports’ in a participant’s plan. There is no power conferred by the Act to make these Operational Guidelines, and they are issued in an exercise of executive power.[6] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines. However, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[7] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[8] where Mortimer J held:[9]
Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it.
Accordingly, unless the Operational Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in a determination of what is a reasonable and necessary support for HDGV. The Guidelines relevant to this review are the:
· NDIS – Operational Guidelines – Reasonable and necessary supports.
· NDIS- Operational Guidelines – Short term accommodation
[6] Minister for Home AffairsvG [2019] FCAFC 79 at [18]
[7] [1979] AATA 179 (1979); 2 ALD 634
[8] [2018] FCA 1229
[9] Ibid at [171]
EVIDENCE
I have considered all the written evidence filed with the Tribunal provided in the joint bundle, the oral evidence provided at the hearing on 12, 14, 15, and 16 May 2025, and the parties’ closing submissions. I will refer in my decision to some of the more salient aspects of the evidence. However, the fact 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.
Evidence about Ms Atif
26. Ms Atif has the following diagnoses:
· Major depressive illness (MDI);
· Anxiety disorder;
· Post-traumatic stress disorder (PTSD); and
· Autism spectrum disorder (ASD).
27. Ms Atif’s goals in her SOPS are as follows:
· I would like support to help me ensure that my environment remains reliable and protected, to help reduce any triggers for me;
· I would like to continue to be able to maintain my ability to complete my personal care tasks;
· I would like support to help me improve my accessibility and mobility by building good habits and improve my quality of life;
· I would like to continue to remain living independently, ensuring I can continue to achieve all my parenting and caring responsibilities; and
· I would like to build my mental, emotional, physical and social capabilities. [10]
[10] BOS 924- 925
28. Ms Atif’s oral evidence can be summarised as follows.
· She has four children ranging between the ages of 9 and 14 years. Her children each attend a different school and are all participants in the scheme.
· She lives in double-storey rental accommodation. Her home has 4 bedrooms and multiple bathrooms;
· She has no contact with the father of her children and thus receives no informal support from him. She has a sole parenting order from the Family Court in relation to all of her children;
· Ms Atif’s parents and siblings all live in Pakistan;
· She has a business degree. She has not worked for approximately twenty years;
· She finds it hard to sleep and generally wakes each morning at 3 am;
· She has the following issues and difficulties:
o continence issues;
o severe dizziness especially when bending;
o her body is hurting ‘all the time’;
o a high stress life, she states ‘I am very stressed all the time’;
o pains in her joints and tissues;
o regular bruising on her body as a result of ‘holding’ herself ‘tight’ in her sleep;
o constant fatigue and tiredness. She is asleep by 8 pm each night;
o It takes her 45 minutes to make her breakfast each day which consist of avocado on toast;
o She struggles with sensory perceptions and intolerances when eating due to her ASD. As a result, she must use the toilet after eating which can take up to 40 minutes on each occasion. She experiences chronic and regular diarrhoea and constipation;
o Triggers for her sensory intolerances can include certain food, smells, bleeding and being in a bathroom. Being in a kitchen or a bathroom can also trigger a sensory response;
o She is affected by ‘negative thoughts’ and anxiety. Triggers for her negative thoughts and anxiety include being alone;
o She has a 13 kg washing machine and her family washes multiple times each day;
o She will often fall asleep during the day and not realise that she has done so until she wakes;
o She goes grocery shopping with her children once or twice a week. On the remaining days she will send a support worker with a list that she has prepared;
o She receives pharmacological treatment for depression, ADHD, diabetes, cholesterol, arthritis and blood pressure;
o She attends one or two appointments each day. These include various medical and allied health appointments for herself and her children. She also attends various appointments with different government agencies. In this regard she refers to the following appointments for herself:
§ Rheumatologist every 6 weeks;
§ Weekly session with her mental health social worker;
§ Fortnightly art therapy;
§ Fortnightly GP appointments;
§ Endocrinologist;
§ ENT specialist;
§ Podiatrist every eight week;
§ Dermatologist every six months;
§ Cardiologist – annual review;
§ Ophthalmologist – annual review;
§ Optometrist – annual review;
§ Dentist; and
§ Neurologist.
· Ms Atif is able to drive herself to various appointments. She is also able to use public transport. She prefers to use trains as they are not as ‘claustrophobic’;
· She is unable to bend to unload or load the dishwasher or the washing machine;
· Due to her arthritis she struggles to use a knife to cut food;
· She is regularly affected by ‘autistic burnout’.
29. Ms Atif stated that she is fully aware of Schedule 2 to the Transitional Rules which identifies certain supports that are generally not NDIS supports for the purposes of subsection 10(1) of the NDIS Act. Ms Atif contends however, that despite the statutory exclusion of certain supports that she is seeking, she has a ‘unique and exceptional disability that warrants the funding of these supports’. For this reason, she contends that she should be funded for these supports and that they should be included in her SOPS.
30. Ms Atif explains that she only showers once every two months. This is because she finds showering claustrophobic and it requires too much energy. It takes Ms Atif two days to ‘recover’ after showering.
31. Ms Atif accepts that her current SOPS includes 189 hours of funding per year comprised as follows:
·Psychology – 15 hours
·Occupational therapy - 52 hours
·Counselling – 40 hours
·Social worker – 30 hours
·Skills and development training – 52 hours [11]
[11] BOD 852
32. In her oral evidence Ms Atif confirmed that she sought funding for an additional 184 hours per year for the following various therapies:
· Physiotherapy – 38 hours
· Occupational therapy - additional 60 hours
· Dietician - 16 hours
· Art therapy - 26 hours
· Music therapy - 26 hours
· Exercise physiology - 12 hours
· Yoga - 6 hours
33. In summary, Ms Atif’s contends that she requires in total 373 hours of therapy supports per year, being an equivalent of approximately 7 hours per week.
34. Ms Atif’s history in relation to her level of participation in therapy supports however includes the following:
· An unwillingness to commit to a weekly group program at a pain management clinic, or to attend for physiotherapy review following only one treatment;
· Being affected by severe autistic burnout after 6 psychology sessions at the pain management clinic resulting in a discharge from the pain management clinic.[12]
[12] BIS 412
35. Ms Atif has a weekly session with her mental health social worker on the telephone. She is able to attend this therapy on her own and without a support worker.
36. Because of depression, anxiety and PTSD she has a severe fear that she and her children are unsafe. She also refers to her ‘hypervigilance’ because of PTSD.
Evidence of Mr Christian Byrnes
37. Ms Byrnes is an occupational therapist. He conducted an on-the-papers assessment of Ms Atif and provided a report dated 11 February 2025.[13] Mr Byrnes has 22 years of experience.
[13] BOD 820
38. Mr Byrnes also provided oral evidence which assisted the Tribunal. In doing so, he was provided with Ms Atif’s current SOPS which had been varied since the time of his report. Mr Byrnes was also provided with a breakdown of Ms Atif’s supports under her current SOPS.[14]
[14] Exhibit 4
39. Mr Byrnes’ evidence can be summarised as follows:
· That due to certain psychosocial factors Ms Atif is unable to either leave her house or leave her house without support;
· That any difficulty Ms Atif’s has with the physical ability to walk, transfer to and from a chair or bed, lift or carry items, is not attributable her psychosocial or neurological impairment;
· That any recommendation for mobility aids, physiotherapy treatment, exercise physiology, podiatry, and an electric wheelchair were not related to Ms Atif’s psychosocial or neurological impairments;
· That Ms Atif’s reduced capacity for social interaction is attributable to an impairment arising from her MDI, anxiety disorder, PTSD and ASD;
· The majority of Ms Atif’s reduction in functional capacity for self-care is attributable to an impairment arising from her MDI, anxiety disorder, PTSD and ASD. The tasks of self-care that are impacted include management of medication, personal hygiene and meeting adequate nutritional needs;
· That he has considered the breakdown of the supports funded under Ms Atif’s current SOPS and the list of extra supports being sought by Ms Atif.[15] He has formed the view that none of the extra supports sought by Ms Atif are reasonable and necessary to address her needs in relation to her social interaction, self-care, communication, learning, self-management;
· That Ms Atif does have a need for psychological and psychiatric care and direct support from a support worker to address her functional limitations with her self-care, but in his opinion the current level of supports in her SOPS are sufficient to meet these needs;
· He considers that the supports funded in Ms Atif’s SOPS are sufficient, reasonable and necessary to meet her needs in relation to her social interaction, noting that support is provided from a support worker to access the community;
· That the principal reason for Ms Atif’s reduced functional capacity for communication is her psychosocial and neurological impairment arising from MDI, anxiety disorder, PTSD and ASD.
· That it is within his expertise to recommend other allied health services and therapies such a podiatry, psychology, dietician and physiotherapy. Notwithstanding, recommendations regarding the frequency of such services, and the nature of the treatment are more appropriately provided by the relevant allied health practitioner.
· In this regard he would only have the expertise to provide an estimate on such matters as the frequency and number of hours of occupational therapy required for Ms Atif. Also, in respect of an occupational therapist driving assessment and transport assistance. Simply put, whilst he could recommend an assessment by a podiatrist, the nature and frequency of podiatry treatment for Ms Atif would be based on the opinion of a podiatrist following a podiatry assessment.
[15] BOS 807 - 809
Evidence of Ms Emily Stipic,
40. Ms Stipic is an occupational therapist. She assessed Ms Atif and provided reports to the Tribunal dated 3 October 2024[16] and 17 February 2025[17].
[16] A30
[17] A41
41. In her report dated 3 October 2024 Ms Stipic made a number of recommendations which included;
· An increase in occupational therapy to start implementing strategies for improving diet, executive functioning skills, managing carer burnout and sensory preferences and also for increased community access;
· Increased occupational therapy to start implementing strategies to increase independence in meal preparation and reduce reliance on meal delivery. Stating that in the meantime, Ms Atif will require meal preparation and delivery services to ensure her and her family are eating to maintain their nutrition;
· Weekly clinical psychology and increased mental health support worker funding;
· increased physiotherapy input to provide pain management strategies to ensure Ms Atif is able to engage in daily occupations;
· An increase in occupational therapy and physiotherapy funding to start implementing strategies for energy conservation, hydrotherapy, showering and improving her diet.
· Input from a dietician to assist with maintaining adequate nutrition. Also an increase in assistance with meal preparation and food delivery to ensure her family are being fed;
· Clinical psychology funding to assist with psychosocial trauma that is directly related to her pain;
· Additional support worker funding to assist with self-care tasks;
· Apps to manage plans, organise routines of the days, appointments, and reminders;
· Additional support worker assistance to assist with frequent shopping trips. In this regard, Ms Stipic states that Ms Atif ‘requires assistance with shopping including grocery shopping, picking up medications from the pharmacy, replacing clothes from retail shops and purchasing uniforms for the children.’;
· A cleaning service of 10 hours per week to ensure that the health and safety standards are met for Ms Atif and her family;
· An increase in support worker hours to assist with maintaining her home;
· Level 3 transport funding;
· Support worker funding to assist Ms Atif with her parental role to take her children out on the weekend;
· An OT driving assessment;
42. Ms Stipic also made a number of recommendations for assistive technology which I will subsequently refer to insofar as they are relevant to this review.
43. As on observation I found Ms Stipic’s report of limited assistance. Ms Stipic’s recommendations relate to a significant extent on supports which would assist not only Ms Atif, but also her children and the management of their upbringing and family home. For reasons which will follow, Ms Stipic’s evidence was given limited weight.
Evidence of Natasha Nawrocki.
44. Ms Nawrocki is an occupational therapist. She provided two reports to the Tribunal dated 30 January 2023[18] and 17 February 2025.[19] Her first report was made following a functional assessment of Ms Atif in January 2023. I will subsequently refer in this decision to Ms Nawrocki’s recommendations insofar as they are relevant to this review. I do note however that Ms Nawrocki’s recommendations are made on a functional assessment of Ms Atif almost two and a half years ago. Relevantly and appropriately Ms Nawrocki states in her second report ‘Given the time elapsed since the assessment and my lack of current involvement, I am not in a position to provide any further commentary or participate in Tribunal proceedings, including cross-examination’
[18] T8
[19] A42
Are the supports sought necessary to address the needs of Ms Atif arising from the impairment in relation to which she met the disability requirements? – subsection 34(1)(aa) of the NDIS Act
45. Ms Atif was granted access to the scheme in January 2023 on the basis of meeting the disability requirements pursuant to subsection 24(1) of the NDIS Act.[20] In this regard, the Agency was satisfied that Ms Atif had a psychosocial impairment as a consequence of major depressive illness (MDI), anxiety disorder and post-traumatic stress disorder (PTSD)[21]
[20] Respondent’s submissions dated 13 November 2024, ST 45
[21] Respondent’s SFIC para 7
46. As a result of a change of circumstances request dated 3 October 2024, the Agency subsequently accepted that Ms Atif also has a neurological impairment as a consequence of autism spectrum disorder (ASD).
47. Ms Atif contends that she has additional impairments, including physical impairments, resulting from a large number of conditions. The conditions which Ms Atif refers to include the following:
·Attention deficit hyperactivity disorder (ADHD);
·Chronic fatigue syndrome (CFS);
·Arthritis;
·Fibromyalgia;
·Agoraphobia;
·Postural Orthostatic Tachycardia Syndrome (POTS);
·Neuropathic pain;
·Bilateral plantar fasciitis;
·Bilateral calcaneal spur;
·Bilateral enthesophytes;
·Bilateral knee osteoarthritis;
·Chilblains and Raynaud’s disease;
·Spinal disc herniation;
·Coccydynia;
·Hearing loss;
·Sleep apnoea;
·Gestational diabetes;
·Hypertension;
·Hypothyroidism;
·Migraines;
·Pelvic prolapse;
·Irritable bowel syndrome;
·Hypercholesterolaemia; and
·Endometriosis.[22] (the ‘additional conditions’)
[22] A30, A 31, T3, T8
48. Ms Atif’s physical and other additional impairments have not been accepted by the Agency as meeting the disability requirements under section 24 of the NDIS Act or the early intervention requirements under section 25 of the NDIS Act. In response, Ms Atif contends that in any event all of the supports for which she seeks funding are related to her psychosocial and neurological impairments.
49. The Agency does not dispute that Ms Atif has these additional conditions. The Agency submits however that these conditions do not result in an ‘impairment’ which satisfies the requirements of section 24(1) of the NDIS Act. [23]
[23] Respondents closing submissions [9]
50. The Agency’s submission is accepted. I cannot accept these listed conditions at [47] are permanent as contemplated by section 24(1)(b) of the NDIS Act. I also do not accept that Ms Atif has permanent impairments and that her functional capacity has been substantially reduced as a consequence of these conditions because of insufficient clinical evidence.
51. Because of insufficient clinical evidence I also do not accept that Ms Atif meet the requirements the early intervention requirements pursuant to section 25 of the NDIS Act. This argument was not, in any event agitated by Ms Atif.
52. Based on the evidence, I am satisfied that Ms Atif meets the disability requirements on the basis of a psychosocial impairment due to MDI, anxiety disorder and PTSD. I am also satisfied that Ms Atif meets the disability requirements on the basis of a neurological impairment due to ASD. Whilst I accept that Ms Atif may have these additional conditions, I am not satisfied that there is sufficient evidence before the Tribunal to be positively satisfied that Ms Atif has an impairment/s as a result of any of these additional conditions for the purposes of sections 24(1) or 25 of the NDIS Act.
53. On this basis, for the purposes of subsection 34(1)(aa) of the NDIS Act, the supports included in Ms Atif’s SOPS must be necessary to address her needs that arise as a result of her psychosocial and neurological impairments.
NDIS Supports – subsection 34(1)(f) of the NDIS Act
54. In relation to the supports sought by Ms Atif which are identified in Schedule 2 of the NDIS Supports Transitional Rules as not being ‘NDIS supports’ Ms Atif submits that her circumstances are ‘unique and exceptional’. In doing so, Ms Atif presumes that the Tribunal’s jurisdiction in its review includes a discretionary power in relation to subsection 34(1)(f) of the NDIS Act.
55. Ms Atif’s understanding of the Tribunal’s review jurisdiction is misconceived for the following reasons;
·The Tribunal’s review is conducted strictly pursuant to section 34(1)(f) of the NDIS Act;[24]
[24] Paragraphs [17] and [18]
·Section 34(1)(f) provides as a mandatory requirement that a support be a ‘NDIS Support’ for the purposes of section 10 of the NDIS Act and the Transitional rules;
·Schedule 2 of the Transitional rules specifies the supports that are ‘generally’ not NDIS supports for the purposes of the section 10 of the NDIS Act;
·The use of the word ‘generally’ in Schedule 2 of the Transitional rules refers to the ‘mechanism’ whereby an applicant may apply to the Agency for a ‘replacement support determination’.[25] This mechanism is strictly confined to the following supports;
[25] See section 7 Transitional Rules; section 10(6) – 10(7) NDIS ACT
(a)Standard commercially available household items
(b)Smart watches
(c)Tablets
(d)Smartphones and
(e)An app used for accessibility or communications purposes. (‘replacement supports’)
·The use of the word ‘generally’ therefore relates to Ms Atif’ ability to apply to the Agency for a ‘replacement support determination’.
56. In summary the Tribunal has no discretion to include in Ms Atif’s SOPS supports which are identified and excluded under the provisions of Schedule 2 of the Transitional rules.
Withdrawal of certain supports
57. At the commencement of the hearing Ms Atif withdrew her request for funding for the following supports;
·Equine therapy;
·Reformative pilates;
·Float therapy;
·Remedial massage by a registered physiotherapist;
·Diabetes management; and
·Wound management.
Psychology
58. Ms Atif states that she is seeking 15 hours per year of funding for psychology support.
59. At the hearing the Agency identified to the Tribunal that Ms Atif’s current SOPS already includes funding for 15 hours per year of psychology.[26] Ms Atif subsequently conceded that she is already funded for this support and that she is satisfied with this level of funding.[27]
[26] BOD 920
[27] Respondent’s closing submissions [4]
60. It is therefore not necessary for the Tribunal to address this support.[28]
[28] Oral concession by applicant
Physiotherapy and hydrotherapy - 38 hours
61. Ms Atif seeks funding of 38 hours per year for physiotherapy to be provided in the form of hydrotherapy. This includes an allowance for care team meetings, travel, reports and assessments.
62. Ms Atif is not currently funded for physiotherapy.
63. Ms Atif relies on an assessment and recommendation of Ms Stipic dated 3 October 2024.[29] She also relies on the report of Mr Khalid Khalifulla, physiotherapist.[30]
[29] A25
[30] A5. A45
64. Ms Stipic’s assessment refers to Ms Atif’s report of shooting pain in her shoulders that goes down her arms, mouth and jaw and concerns to the extent that she has cut her cheek and tongue and grinds her teeth. Ms Stipic refers to this as a symptom of anxiety which stems from PTSD. Ms Stipic states that this pain is a significant barrier to Ms Atif ‘engaging in daily occupations’. She also states that Ms Atif has ‘attempted to go through the public system to assist with pain management, however, they have not provided appropriate support.
65. Ms Stipic also states that physiotherapy is required to cover cost of ongoing management of Ms Atif’s ‘physical health’.[31]
[31] BOD 488
66. Mr Khalifulla’s report dated 28 March 2025 recommends 38 hours of physiotherapy intervention for Ms Atif. He states that this will provide for weekly physiotherapy sessions for the initial 12 weeks to allow for the implementation of a graduated physical rehabilitation program in Ms Atif’s home and a hydrotherapy setting. Mr Khalifulla refers to the following purposes for physiotherapy:
·Implement strengthening, endurance and flexibility training to address Ms Atif’s chronic musculoskeletal pain;
·Prescribe an individualised exercise program targeted towards improving Ms Atif’s transfers, walking capacity and fatigue levels. He also explains that due to her chronic fatigue syndrome Ms Atif experiences fluctuations on a day-to-day basis with her fatigue and energy levels. These physical changes require prescription of a graduated rehabilitation program specifically tailored for Ms Atif so that she is able to improve her mobility and fitness, allowing her to complete tasks such as hygiene care, dressing, transfers and community access safely and without becoming excessively fatigued;
·Education on energy-saving strategies, pacing and breathing exercises to assist in maximising her energy efficiency during the day;
·To implement a daily home exercise routine;
·Facilitate community-based exercise options (e.g. hydrotherapy, yoga, gym program).
67. In his report, Mr Christian Byrnes report[32] opines that Ms Atif has a reduced functional capacity for mobility however this reduction is not as a result of Ms Atif’s neurological or psychosocial impairments. In his oral evidence Mr Byrne stated that physiotherapy was not a reasonable and necessary support which would manage Ms Atif’s psychosocial impairment. Mr Byrne also stated that Ms Atif’s reduction in mobility was only attributable to her psychosocial and neurological impairment to the extent she found it hard to go out into the community. He explained that in respect of her ability to perform physical tasks such as walking, lifting and transfers this was not related to her psychosocial or neurological impairment.
[32] BOD 820
68. The Agency’s refer to section 34(1)(aa) of the NDIS Act and contends that physiotherapy and hydrotherapy are not necessary to address Ms Atif’s needs that arise as a consequence of her psychosocial and neurological impairments.[33]
[33] Respondents closing submissions [13], SFIC [25]
69. The Agency’s submission is accepted.
70. I am satisfied that Ms Atif seeks physiotherapy and hydrotherapy to address physical impairments that arise as a consequence of physical conditions and her CFS. In this regard, I am persuaded by Mr Khalifulla’s opinion. Mr Khallifulla is Ms Atif’s treating physiotherapist and is therefore well placed to provide an opinion on the purpose of physiotherapy as an intervention. Mr Khalifulla recommends physiotherapy as an intervention that relates to Ms Atif’s physical conditions and her CFS. I am also persuaded by Mr Byrnes’ opinion which is that physiotherapy is not a support that would address Ms Atif’s needs as a consequence of her psychosocial or neurological impairments.
71. I am therefore satisfied that physiotherapy and hydrotherapy are sought for a purpose which has no link or connection to Ms Atif’s needs which arise as a result of her psychosocial impairment due to MDI, anxiety disorder or PTSD or her neurological impairment due to ASD.
72. Subsection 34(1)(aa) of the NDIS Act is therefore not satisfied.
73. The funding of physiotherapy and hydrotherapy is not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Occupational therapy 112 hours per year
74. Ms Atif’s current SOPS include funding for 52 hours of occupational therapy per year.
75. Ms Atif seeks an increase in this funding for 112 hours of occupational therapy per year and relies on the report of Ms Stipic.[34] Ms Stipic’s report recommends 52 hours of actual therapy but includes other components such as travel to and from Ms Atif’s home, report writing, plan review, follow-up and liaison with suppliers, providers, participant, and other key stakeholders and a driving assessment. Ms Stipic recommends ‘high frequency of OT appointments to build her capacity using consistency’.
[34] BOD 401, 465 , 788
76. Ms Stipic’s recommendation of 112 hours, however, contains an error in her calculations. She recommends 52 hours of occupational therapy with an allowance for travel of 30 minutes, both ways in the sum of 26 hours. Ms Stipic’s states that this equates to sum total of 88 hours. This is an error which should be corrected to 78 hours. This error reduces her recommendation to 102 hours of occupational therapy. Included in Ms Stipic’s recommendation is a component of 12 hours for an occupational driving assessment. A deduction of this component gives rise to a recommendation by Ms Stipic of 90 hours occupational therapy.
77. The Agency contends that Ms Stipic’s recommendation is excessive on the basis she recommends of 52 hours of actual therapy with a remainder (as corrected) of 38 hours. The Agency invites the Tribunal to draw as an inference of ‘self-interest’ on the part of Ms Stipic.
78. The Agency explains that the current funding for occupational therapy is in line with the recommendation in the functional capacity report prepared by Ms Nawrocki which is based on a combination of clinical observations, standardised assessments and self-reports. The Agency also contends that Ms Nawrocki’s recommendation is consistent with current good practice in occupational therapy. Ms Nawrocki conducted a functional assessment of Ms Atif in January 2023.[35] She recommended 51.5 hours of occupational therapy for Ms Atif compromised of fortnightly sessions of one hour, the writing of progress notes, care team meetings and liaison and report writing.
[35] T8
79. The Agency also relies on the report by Mr Byrnes dated 11 February 2025. Mr Byrne’s opinion is that the current funding of 52 hours per year for occupational therapy was sufficient to meet Ms Atif’s needs.
80. The Agency contends that, based on the evidence available to the Tribunal, Ms Atif’s current funding of 52 hours of occupational therapy remains reasonable for Ms Atif to work towards her goals as stated in her NDIS plan. Further, that an increase in funding does not represent value for money, where the evidence does not support a finding that an increase in funding for occupational therapy would substantially improve the life stage outcomes for, and be of long-term benefit to, Ms Atif[36] nor reduce her need for other kinds of supports.[37]
[36] (Rule 3.1(b) Supports for Participants Rules)
[37] (Rule 3.1(f)).
81. I am not persuaded by the evidence of Ms Stipic. I am persuaded by the evidence of Ms Nawrocki which is further supported by Mr Byrne’s opinion.
82. I accept the Agency’s submission that based on the evidence the Tribunal cannot be satisfied that an increase of 60 hours for occupational therapy represents value for money[38] or is likely to be effective and beneficial[39] for Ms Atif.
[38] Section 34(1)(c ) NDIS Act
[39] Section 34(1)(d) NDIS Act
83. Subsections 34(1)(c) and 34(1)(d) of the NDIS Act are therefore not satisfied.
84. The funding of an additional 60 hours of occupational therapy is not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Mental Health Social Worker Counselling – 60 hours per year plus care team meetings and report writing
85. Ms Atif’s current SOPS includes funding for 40 hours of counselling per year[40] and 30 hours for therapy and training with a social worker as a stated support. She also has funding for an additional 15 hours for an assessment recommendation by a psychologist.
[40] BOD [920]
86. The report of Ms Kelly Tsorlinis, Mental Health Social Worker & Clinical Family Therapist,[41] states that Ms Atif experiences frequent episodes of intense anxiety, depression and emotional dysregulation leading to dissociative episodes. Ms Tsorlinis identifies the following benefits of counselling:
·Support to develop and enhance interpersonal and social skills;
·Develop and maintain healthy boundaries in interpersonal relationships;
·Develop self-care strategies and enhance self-soothing skills;
·Develop emotional regulation skills; and
·Support to develop and enhance positive behaviour.
[41] A17
87. During the hearing Ms Atif advised the Tribunal that she was satisfied with the level of funding as referred to in [84] and this support was no longer in dispute.[42]
[42] Respondent’s closing submissions [4]
Dietician support – 16 hours plus care team meetings and report writing
88. Ms Atif is not currently funded for dietician support. Ms Atif seeks funding of 16 hours per year for a dietician plus an additional unspecified number of hours for travel, care team meetings and report writing.
89. Ms Atif refers to a report of Anthea Vasiliadis, dietician, which recommends 12 hours per year of dietetic counselling.[43] In making this recommendation Ms Vasiliadis states,
‘In dietetic counselling Erum will receive support in collaboratively creating a meal plan that accommodates her mental health challenges while considering the diverse preferences and sensitivities of her children. Given the potential difficulties in sustained attention and organization associated with ADHD, Erum will be supported in sessions to design a practical and simplified meal planning system that aligns with her cognitive capabilities, fostering a more manageable approach to providing regular, nutritious meals.’
and
‘Regular check-ins with the dietitian can also provide ongoing support, allowing for adjustments to the meal plan based on the evolving needs of both Erum and her children.
[43] A7
90. The Agency contends that the services of dieticians are not necessary to address Ms Atif’s needs that arise as a consequence of her psychosocial and neurological impairments pursuant to section 34(1)(aa) of the NDIS Act.
91. The Agency also contends that the Tribunal cannot be positively satisfied on the evidence that the request for 16 hours a dietitian support represents value for money pursuant to section 34(1)(c) of the NDIS Act for the following reasons:
· The Vasiliadis report only recommends funding for dietetic counselling for 12 hours per year;
· The evidence does not provide any clinical justification as to why Ms Atif requires funding for 16 hours per year, plus an ‘additional unspecified amount’;
· Ms Atif already has access to the services of a dietitian for two sessions per year through her existing Medicare diabetes care plan;
· There is insufficient evidence before the Tribunal to demonstrate why this support through Medicare is insufficient to meet Ms Atif’s needs.
92. In these circumstances, the Agency contends the requested support does not represent value for money, because it does not take into account the same support that is provided to Ms Atif through the health care system.
93. I do not accept that the level of funding sought for the services of a dietician by Ms Atif is a reasonable and necessary support. Firstly, Ms Vasiliadis’ recommendation is based on a level of service that relates not only to Ms Atif but also her four children. The nutritional needs of her children do not form part of this review. Secondly, I accept the Agency’s submissions in [90] and [91].
94. Subsection 34(1)(c) of the NDIS Act is therefore not satisfied.
95. The funding of a dietician is therefore not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Art therapy - 26 hours plus care team meetings and report writing
96. Ms Atif seeks funding of 26 hours per year for art therapy plus an unspecified amount for care team meetings, travel and report writing.
97. Ms Atif is not current funded for art therapy as a support.
98. Ms Atif relies on the reports by Ms Melissa Duncombe, Clinical Neuropsychologist, dated 28 January 2024[44] and Ms Naomi Buckingham dated 28 February 2025[45] who both recommend the continuation of art therapy. She also relies on the report of Dr Malekzadeh.[46]
[44] A11
[45] A44
[46] A31
99. The Agency’s refer to section 34(1)(aa) of the NDIS Act and contends that art therapy is not necessary to address Ms Atif’s needs that arise as a consequence of her psychosocial and neurological impairments.[47]
[47] Respondents closing submissions [13], SFIC [25]
100. The Agency also contends the evidence does not establish that art therapy has resulted in the improvement or maintenance of Ms Atif’s functional capacity. Further, that in absence of evidence demonstrating the specific functional outcomes of art therapy there is insufficient evidence before the Tribunal to be positively satisfied that this support is reasonable and necessary.
101. Ms Buckingham describes art therapy as ‘research-based practice that uses the creative process of art-making to support individuals in improving their mental health, emotional regulation, functioning, and overall well-being’. Ms Buckingham identifies as outcomes of art therapy for Ms Atif, emotional regulation and the development of coping mechanisms to manage anxiety, disassociation and stress.
102. The Agency submits that whilst Ms Buckingham states that Ms Atif has made improvements in her engagement with art therapy and has begun to develop self-regulation techniques, the evidence also suggests that these benefits can also be obtained by other therapies such as counselling and psychology. On this basis, art therapy does not represent value for money, because it duplicates the support of counselling and psychology for which Ms Atif is currented funded.[48]
[48] Section 34(1)(c )
103. I accept that art therapy is a support that addresses the needs of Ms Atif that arise as a consequence of her psychosocial impairment. Notwithstanding I am satisfied that the funding for this support would be a duplication of the support of counselling and psychology for which Ms Atif is already funded.
104. Subsection 34(1)(c) of the NDIS Act is therefore not satisfied. The funding of art therapy is therefore not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Music therapy
105. Ms Atif requests funding for 26 hrs per year of music therapy, plus an unspecified amount for care team meetings, travel and report writing. Ms Atif is not currently funded for music therapy.
106. Ms Atif’s request is based on the undated report provided by Melaine Hansen, Music Therapist.[49]
[49] A3
107. The Agency’s refer to section 34(1)(aa) of the NDIS Act and contends that music therapy not necessary to address Ms Atif’s needs that arise as a consequence of her psychosocial and neurological impairments.[50]
[50] Respondents closing submissions [13], SFIC [25]
108. The Agency also contends that section 34(1)(c) is not met. Whilst Ms Hansen’s report claims Ms Atif has developed several strategies and tools to increase her resilience to stress, increase her health and well-being and to improve her capacity to regulate her nervous system, the evidence also suggests that these benefits can also be obtained by other therapies such as counselling and psychology. The Agency therefore again contends the requested support does not represent value for money, because it duplicates the support of counselling and psychology for which Ms Atif is currented funded for.
109. The Agency also contends that section 34(1)(d) of the NDIS Act is not met and the Tribunal cannot be positively satisfied on the evidence that music therapy will be, or is likely to be, effective and beneficial for Ms Atif, having regard to current good practice.
110. Finally the Agency contends that section 34(1)(f) of the NDIS Act is not met. The Agency refers to item 9(f) of Schedule 2 of the NDIS Supports Transitional Rules which specifically identifies that ‘sound therapy’ is not an NDIS Support for the purposes of section 10 of the NDIS Act. The Agency submits that sound therapy and music therapy are synonymous.
111. I accept that music therapy is a support that addresses the needs of Ms Atif that arise as a consequence of her psychosocial impairment.[51] Notwithstanding I accept that funding for this support would be a duplication of the funding for counselling and psychology for which Ms Atif is already funded.
[51] Section 34(1)(aa)
112. Subsection 34(1)(c) of the NDIS Act is therefore not satisfied. The funding of music therapy is therefore not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Exercise physiology
113. Ms Atif requests funding for 12 sessions per year of exercise physiology. Ms Atif is not currently funded for exercise physiology.
114. Ms Nawrocki recommends funding exercise physiology to assist Ms Atif develop her general physical fitness.[52]
[52] Exhibit 1 page 489
115. Ms Stipic states that exercise physiology is required to cover the cost of ongoing fortnightly management of an exercise program to maintain Ms Atif’s physical strength and wellbeing in the form of hydrotherapy.
116. The Agency also submits that section 34(1)(f) of the NDIS Act is not met and contends that the purpose of exercise physiology for Ms Atif is to maintain her physical fitness and general wellbeing, rather than for any disability-specific purpose. The Agency refers to item 4(q) of Schedule 2 of the NDIS Supports Transitional Rules. Item 4(q) which identifies that the following ‘Day-to-day living costs- lifestyle’ are not an NDIS Support for the purposes of section 10 of the NDIS Act;
‘general health, fitness, social or recreational activity costs or services’
117. The Agency further contends that exercise physiology not necessary to address Ms Atif’s needs that arise as a consequence of her psychosocial and neurological impairments pursuant to section 34(1)(aa) of the NDIS Act.
118. I am satisfied that exercise physiology is sought to address Ms Atif’s general health and physical fitness. I am also satisfied that exercise physiology is sought for a purpose which has no link or connection to Ms Atif’s needs which arise as a result of her psychosocial and neurological impairment.
119. Subsections 34(1)(aa) and 34(1)(f) of the NDIS Act are therefore not satisfied. The funding of exercise physiology is therefore not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Trauma sensitive yoga
120. Ms Atif requests funding for 6 sessions per year of ‘trauma sensitive yoga’. Ms Atif is not currently funded for trauma sensitive yoga.
121. Ms Nawrocki report describes yoga as ‘a body-centred healing approach for survivors of trauma, focused on helping survivors engage with the present moment and addressing the specific needs and symptoms of trauma survivors. This practice usually combines movement and breath to help individuals to start building back mind/body connections.’ Ms Nawrocki does not identify the basis upon which yoga is recommended, or what is specifically recommended, and only notes that it is ‘as per specialists recommendation’.
122. Item 9 in Schedule 2 of the NDIS Supports Transitional Rules specifically identifies that the following ‘Not evidenced based-alternative and complementary therapies’ are generally not NDIS supports for the purposes of the section 10 of the NDIS Act:
(g) Yoga therapy
123. Subsection 34(1)(f) of the NDIS Act is therefore not satisfied on the basis that yoga therapy is not an NDIS support for the purposes of section 10 of the NDIS Act and the Transitional Rules. The funding of trauma based yoga therapy is therefore not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Podiatry including foot care
124. Ms Atif requests funding for 8 sessions per year for podiatry, including foot care. Ms Atif is not currently funded for podiatry.
125. According to the report by Andrew Huynh, podiatrist, dated 17 November 2023[53], Ms Atif suffers from Raynaud’s phenomenon and chronic pain ranging from her spine through to her lower limbs. Mr Huynh states ‘it is believed that Erum has Achilles tendonitis, plantar fasciitis, heel spurs, and osteoarthritis bilaterally. These issues are medical issues’.
126.The report by Ms Chantel Zappone, podiatrist[54] refers to Ms Atif’s active chilblains and states ‘Spends most of the day in bed - due to stress/anxiety but especially due to pain in feet when walking due to raynauds/chilblains’
[53] A6
[54] A16
127. Ms Zappone recommends vasodilatory cream, paraffin wax baths, assistance with footwear and 4- 8 weekly management of nails and skin.
128. I am satisfied podiatry and foot care are not necessary to address Ms Atif’s needs that arise from her psychosocial or neurological impairments.[55]
[55] Respondents closing submissions [13], SFIC [25]
129. I am satisfied that Ms Atif seeks podiatry to treat her physical conditions which include chilblains due Raynaud’s disease, Achilles tendonitis, plantar fasciitis, heel spurs and osteoarthritis. I am also satisfied that podiatry is sought for a purpose which has no link or connection to Ms Atif’s needs which arise as a result of her psychosocial and neurological impairments.
130. Subsection 34(1)(aa) of the NDIS Act is therefore not satisfied. The funding for podiatry and foot care is therefore not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Audiology
131. Ms Atif requests funding for Audiology including assessments, prescription of AT, assistive listening devices, complementary tech, aids etc, at the rate of two sessions per year, as well as additional flexible funding in the amount of $2,500.
132. The report from Jack Hargreaves, clinical Audiologist, dated 25 September 2024[56] records that Ms Atif’s audiogram indicates that she has mild hearing loss in high frequencies, but that otherwise the results were within normal range.
[56] A24
133. Under cross examination Ms Atif contended that her hearing loss was linked to her depression, PTSD and ASD. No supporting expert evidence was provided and I am not persuaded.
134. I am satisfied that audiology is sought in relation to a hearing condition which has no link or connection to Ms Atif’s needs which arise as a result of her psychosocial and neurological impairments.
135. Subsection 34(1)(aa) of the NDIS Act is therefore not satisfied. The funding of audiology is therefore not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Plan management
136. Ms Atif’s current plan is a mixture of both self-managed and plan managed supports. No submissions were made by Ms Atif in respect of any proposed changes to the management of her plan.
137. On this basis I see no reason to vary the current plan management.
Self-Management AT, software, Apps, training, compliance
138. Ms Atif explained in her oral evidence that she wants some assistive technology to manage the supports in her SOPS. She refers to items including subscription costs for Apps and training modules. Ms Atif was unable to explain in any meaningful manner what she meant in respect of this request for funding. She also did not have any quotes or recommendations or documents to rely upon.
139. There is insufficient evidence for me to be positively satisfied that this support as framed and requested by Ms Atif is a reasonable and necessary support for the purposes of section 34(1) of the NDIS Act.
Specialist support coordination;
140. Ms Atif seeks funding for 200 hours per year per plan for specialist support coordination and psychosocial recovery coaching.
141. Ms Atif’s current plan provides for 60 hours of level 2 support coordination and 15 hours of specialist support coordination.[57]
[57] Exhibit 1 [853]
142. Ms Atif states that she needs 100 hours of level 2 support coordination and 100 hours of specialist support coordination.
143. Ms Atif provided no meaningful evidence in relation to these supports, stating that the current funding was ‘not enough’ and that she relied broadly upon numerous documents contained in exhibit 1.[58]
[58] A2, A4, A11, A18, A25, A 32, A33
144. I have reviewed the documents that Ms Atif referred to. None of this material persuades me to vary the current funding.
145. The report of Ms Heaven Schulz of Shoreline Coordination Services provides a report dated 17 October 2023 and states ‘The 100 hours over 18-months, or 5 hours per month is considered to be insufficient given the complexities of Erum and her family’. Ms Schulz is Ms Atif’s level 2 support coordinator and provides a recommendation 100 hours of support coordination over 12 months.[59] Ms Schultz states that this level of support is vital in the context of Ms Atif being new to the scheme.
[59] A4
146. I am not persuaded by Ms Schultz’s report. Ms Atif is also no longer new to the scheme.
147. Based on the evidence, I am not positively satisfied that the additional funding sought by Ms Atif is a reasonable and necessary support for the purposes of section 34(1) of the NDIS Act.
Complex support needs pathway planning delegate support;
148. Ms Atif states that she wants to be moved into the “Complex support needs pathway’. She explains that she has an ‘extraordinary family circumstance’ and wants access to this service.
149. The Agency explains that the ‘Complex Supports Need Pathway” is an internal team which operates within the Agency . Further, that is not a support that is funded under the scheme and is therefore not a matter that is subject to review by the Tribunal
150. The Agency is correct. The Tribunal has no jurisdiction to direct the internal procedures or management operations of the Agency.
CB Social. Community, Civic participation activities including and not limited to innovative Community participation, transitions in life, daily and life skill building, group or centre based
151. On 23 April 2025 the Tribunal made the following direction:
Pursuant to section 53 of the Administrative Review Tribunal Act 2024:
(a)the scope of the review shall be limited to supports referred to in Annexure A of the Respondents Statement of Facts Issues and Contentions filed 31 March 2025
152. Item 22 of the table attached to the Agency’s Statement of Facts Issues and Contentions filed 31 March 2025 contains the following explanation in respect of the nature of this support for which Ms Atif sought review by the Tribunal;
‘5 hours weekend rate per week per plan plus transport, postage, events, access fees, tickets, membership, subscriptions, resources, kits, etc.
Ratio 1:1 ‘
153. In her oral evidence Ms Atif sought to vary the nature of this support. During the hearing Ms Atif explained that she needed qualified therapists to provide this support. She stated that she needed ‘therapy level people’. She also stated that a support worker ‘does not have an intellectual capability to understand what therapists are training’. Ms Atif also contend that support workers were only appropriate to provide assistance with tasks such as shopping, or cleaning or meal preparation. Ms Atif gave an example of seeking funding for a specialised therapy assistant to accompany her to a music concert as part of ‘music therapy’.
154. The Agency submits that Ms Atif’s oral evidence is not consistent with what she has requested in her application for review. The Agency also refers to the Direction of the Tribunal made on 23 April 2025.
155. The Agency’s submission is accepted. The Tribunal will not review a support outside of the scope of the review as was determined pursuant to the Direction made on 23 April 2025.
Tenancy assistance
156. Ms Atif seeks support for what she describes as ‘tenancy assistance’. She explains ‘I can’t manage my property’ and ‘I’m just one person’. She also explains that this support is requested to help her manage her rental property and that this includes ‘anything and everything to maintain’ the rental property. She gave an example of support to change light bulbs in her home. Also of needing assistance to negotiate with real estate agents.
157. Items 19(a) and (b) in Schedule 2 of the NDIS Supports Transitional Rules provides that the following ‘Housing and community infrastructure’ are not NDIS Supports for the purposes of section 10 of the NDIS Act:
(a) direct costs of compliance with a person’s tenancy agreement, including bond, pest control, exit cleaning and general damage repairs;
(b) housing for people with disability, other than participants eligible for specialist disability accommodation;
158. Subsection 34(1)(f) of the NDIS Act is therefore not satisfied. The funding of tenancy assistance is therefore not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Assistance with coordination and management of life transitions before and after hospital admissions and stay surgeries
159. Ms Atif seeks support relating to hospitalisation, including for various surgeries. This includes assistance with booking in for surgeries and hospitalisation and caring for her after discharge. Ms Atif explains that she needs to have an endoscopy, a laser procedure on her eyes and a gynaecological procedure. Ms Atif also explains that her family has emergencies including scheduled and unscheduled hospital admissions and surgeries multiple times each year.
160. She seeks a flexible funding amount, reserved every year, in her plan and her children’s plans for this purpose.
161. Firstly, the funding of supports in Ms Atif’s children’s SOPS is not relevant to this review. Secondly, the surgeries and procedures that Ms Atif refers to relate to physical treatments and conditions. They have no link or connection with her psychosocial and neurological impairments. Subsection 34(1)(aa) is therefore not satisfied. The funding of this support is therefore not a ‘reasonable and necessary’ for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
219. I accept that with 4 children, some of whom experience regular night-time incontinence and nose bleeds, a large volume of laundry is generated each day.
220. Notwithstanding for reasons stated above responsibility for this workload does not fall with the Agency for the purposes of Ms Atif’s SOPS.
221. I am satisfied that the funding of 3 hours per day for support worker assistance with Ms Atif’s activities of daily life is a reasonable and necessary support for Ms Atif taking into account the level of laundry that Ms Atif requires (and not her children) as a consequence of her psychosocial and neurological impairments.
222. I am satisfied that the funding of an additional 3 hours per day for laundry is not a support which addresses the needs of Ms Atif which arise as a result of her psychosocial and neurological impairments. Subsection 34(1)(aa) of the NDIS Act is also not satisfied for 3 hours per day of laundry as a support.
223. The funding of 3 hours per day of laundry is therefore not a ‘reasonable and necessary’ supports for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Assistance with social and community participation
224. Ms Atif seeks 4 hours per day for ‘assistance with social and community participation’.
225. Ms Atif explained that ‘I need help with communication in all aspects of my life’. She referred to her difficulties in communicating because of her sensory overload, explaining also that at times she becomes ‘non-verbal’.
226. Ms Atif explains that her estimate of ‘4 hours per day’ relates to the various communications that she must undertake in relation to her children and their schools, appointments, instructions to multiple support workers and engagements with various service providers and government agencies. She also explains that a large amount of time is spent ‘rescheduling’ various appointments and that she did not have the energy to ‘stay on the line’ for lengthy periods of time.
227. Ms Atif also referred to her need for assistance with communication including verbal/non-verbal, phone calls, texts, emails, administration, accounting, coordinating, managing life in social context, safety/companionship/hobbies, transport/accompaniment in driving and shopping.
228. The Agency submits as follows:
· Under her SOPS Ms Atif is currently funded for 10 hours per week for assistance with social, economic and community participation. This funding provides Ms Atif with a level of support in respect to her needs that arise as a consequence of her psychosocial and neurological impairment;
· In any event, Ms Atif does not have a substantially reduced capacity in her communication due to her psychosocial and neurological impairment. In this regard the Agency refers to Ms Atif’s evidence;
o in respect of her being able to personally co-ordinate and engage with multiple government services, including the Dept of Human Services, Dept of Social Services, Dept of Housing, and the Dept of Education.
o Her ability to explain herself to doctors.
o Her ability to advocate for herself and her children.
o Ms Atif’s ability to capably represent herself and communicate her evidence articulately over three days of hearing.
229. The Agency also contends that it can only fund supports that are disability related. Further, that Ms Atif is funded under her current SOPS for 60 hours per year of level 2 coordination and 15 hours per year of specialist support coordination.
230. The Agency’s submissions are reasonably made and accepted. Based on the evidence, I am not persuaded that 4 hours per day for the purposes identified by Ms Atif and framed as being for ‘assistance with social and community participation’ is a reasonable and necessary support. I am satisfied that the funding of 10 hours per week for assistance with social, economic and community participation and the funding for support coordination referred to in [229] is a reasonable and necessary support for Ms Atif taking into account the level of assistance that Ms Atif herself requires (and not her children) as a consequence of her psychosocial and neurological impairments.
231. I am satisfied that the funding of 4 hours per day for ‘assistance with social and community participation’ is not a support which addresses the needs of Ms Atif which arise as a result of her psychosocial and neurological impairments. Based on her evidence I am satisfied that the primary purpose for this level of funding to assist Ms Atif in the management and organisation of her children including matters related to their schooling and various activities and appointments. Subsection 34(1)(aa) of the NDIS Act is therefore not satisfied.
232. The funding of 4 hours per day for ‘assistance with social and community participation’ is therefore not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Noise cancelling headphones
233. Ms Atif is funded for $1000.08 for consumables and low cost assistive technology. This funding would include the purchase of noise cancelling headphones. Accordingly, it is not necessary to address this support as request.
234. There is no evidence before the Tribunal to persuade me that the current funding of $1000.08 for consumables and low cost assistive technology is insufficient as a reasonable and necessary support in respect of noise cancelling headphones.
Smart watch
235. Mrs Atif seeks funding for a smart watch.
236. Items 5(a) in Schedule 2 of the NDIS Supports Transitional Rules provides that the following Day-to-Day living costs – clothing and beauty‘ are not NDIS Supports for the purposes of section 10 of the NDIS Act:
(a)Jewellery and watches (including smart watches) (Tribunal emphasis)
237. Subsection 34(1)(f) of the NDIS Act is therefore not satisfied. The funding of a smart watch is therefore not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Smart weight scales
238. Ms Atif withdrew her request for funding for Smart weight scales on day 4 of the hearing. As referred to above Ms Atif is funded for $1000.08 for consumables and low cost assistive technology. This funding would include the purchase of smart weight scales.
Smart lighting
239. Mrs Atif seeks funding for smart lighting.
240. Item 1 in Schedule 2 of the NDIS Supports Transitional Rules provides that the following Day-to-Day living costs – accommodation and household ‘are not NDIS Supports for the purposes of section 10 of the NDIS Act’:
(i)standard household (including garden) items, appliances, tools and products
241. I am satisfied that smart lighting is a standard household appliance or item. Subsection 34(1)(f) of the NDIS Act is therefore not satisfied. The funding of smart lighting is therefore not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Smart security
242. Mrs Atif seeks funding for smart security. She explains that she cannot ‘look after her possessions anymore’. Also, that a variety of support workers enter and leave her home throughout the day. She has locks on the doors of her home. She seeks smart security in a very general sense and refers to sensors which would connect to an App on her phone. She has provided no quote.
243. Item 1 in Schedule 2 of the NDIS Supports Transitional Rules provides that the following Day-to-Day living costs – accommodation and household ‘are not NDIS Supports for the purposes of section 10 of the NDIS Act’:
(c) standard home security and maintenance costs, fencing, gates, and building repairs
244. I am satisfied that smart security is standard home security. Subsection 34(1)(f) of the NDIS Act is therefore not satisfied. The funding of smart security is therefore not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Smart air quality sensors
245. Ms Atif seeks funding for a smart air quality sensor. She provides no quotation and no independent evidence that it is disability related.
246. Item 1 in Schedule 2 of the NDIS Supports Transitional Rules provides that the following Day-to-Day living costs – accommodation and household ‘are not NDIS Supports for the purposes of section 10 of the NDIS Act’:
(i)standard household (including garden) items, appliances, tools and products
247. I am satisfied that smart air quality sensor is a standard household appliance. Subsection 34(1)(f) of the NDIS Act is therefore not satisfied. The funding of smart air quality sensors is therefore not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Smart heating and cooling systems
248. Ms Atif seeks funding for a smart heating and cooling system.
249. She explains that she cannot ‘thermo-regulate’. Also that she has ‘difficulty’ finding the remote control for her air conditioning unit in her home. She explains also that the heating unit in her home is operated from a button located downstairs. She states that she would like to be able to operate her air conditioning unit and heating system ‘from her phone’. This would mean also that when she is in her bedroom she would not have to go downstairs to alter the heating.
250. She provides no quotation to the Tribunal.
251. Item 1 in Schedule 2 of the NDIS Supports Transitional Rules provides that the following Day-to-Day living costs – accommodation and household ‘are not NDIS Supports for the purposes of section 10 of the NDIS Act’:
(i)standard household (including garden) items, appliances, tools and products
252. I am satisfied that heating and cooling systems, ‘smart’ or otherwise are standard household appliances. I am also satisfied that this system is requested on the basis of ‘convenience’ and has no link whatsoever to her needs of which arise as a result of her psychosocial and neurological impairments.
253. Subsections 34(1)(aa) and 34(1)(f) of the NDIS Act are therefore not satisfied. The funding of a smart hearing and cooling system is therefore not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Smart hygrometer including leak alarm
254. Ms Atif explains that recently her home had been flooded because she had left a tap on downstairs. She explained that a ‘hygrometer’ senses the moisture level in the house’ and that it is possible to get an App on your phone with an alarm that activates if the moisture level is increased.
255. She provides no quotation and is unable to provide even an estimate of the cost of this equipment.
256. Item 1 in Schedule 2 of the NDIS Supports Transitional Rules provides that the following Day-to-Day living costs – accommodation and household ‘are not NDIS Supports for the purposes of section 10 of the NDIS Act’:
(i)standard household (including garden) items, appliances, tools and products
257. I am satisfied that this equipment is a standard household appliance. I am also satisfied that this support has no link or connection with Ms Atif’s needs that arise as a consequence of her psychosocial or neurological impairments.
258. Subsections 34(1)(aa) and 34(1)(f) of the NDIS Act is therefore not satisfied. The funding of a smart hygrometer including a leak alarm is therefore not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Smart locks
259. Ms Atif seeks funding for the installation of a smart lock on her front door. She wishes for the door handle and key lock to be removed and replaced with an electronic keypad. Access to the front door will only be permitted to those with the access security code.
260. Ms Atif provides no quotation.
261. Item 1 in Schedule 2 of the NDIS Supports Transitional Rules provides that the following Day-to-Day living costs – accommodation and household ‘are not NDIS Supports for the purposes of section 10 of the NDIS Act’:
(c) standard home security and maintenance costs, fencing, gates, and building repairs
262. I am satisfied that smart locks are akin to standard home security. I am also satisfied that this support has no link or connection with Ms Atif’s needs that arise as a consequence of her psychosocial or neurological impairments.
263. Subsections 34(1)(aa) and 34(1)(f) of the NDIS Act are therefore not satisfied. The funding of smart locks is therefore not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Smart cameras
264. Ms Atif seeks funding for the installation of smart cameras inside her home. She contends that this relates to her PTSD. She states that she requires smart cameras on the basis that she wishes to know where her support workers are in her house at all times. No quote provided.
265. Item 1 in Schedule 2 of the NDIS Supports Transitional Rules provides that the following Day-to-Day living costs – accommodation and household ‘are not NDIS Supports for the purposes of section 10 of the NDIS Act’:
(c) standard home security and maintenance costs, fencing, gates, and building repairs
(i)standard household (including garden) items, appliances, tools and products
266. I am satisfied that this support is also akin to standard home security.
267. Subsection 34(1)(f) of the NDIS Act is therefore not satisfied. The funding of smart cameras is therefore not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Smart chargers
268. Ms Atif withdrew her request for smart chargers on day 4 of the hearing.
Smart blinds/curtains
269. Ms Atif withdrew her request for smart blinds/curtains on day 4 of the hearing.
Smart fridge
270. Ms Atif withdrew her request for a smart fridge on day 4 of the hearing.
Smart washing machine
271. Ms Atif withdrew her request for a smart washing machine on day 4 of the hearing.
Ergonomic furniture
272. Ms Atif is not currently funded for ergonomic furniture. Ms Atif explains that she is looking for furniture that will support her back because she is tired of sitting in her bed.
273. She states that she ‘thinks’ that an automatic recliner chair has been suggested by her occupational therapist Ms Stipic. Ms Atif also refers to ‘a bed than can go up and down.’
274. Item 1 in Schedule 2 of the NDIS Supports Transitional Rules provides that the following Day-to-Day living costs – accommodation and household ‘are not NDIS Supports for the purposes of section 10 of the NDIS Act’:
(j) standard furniture, fixtures or fittings
275. I am satisfied that a recliner chair is akin to standard furniture. I am also satisfied that these supports have no link or connection with Ms Atif’s needs that arise as a consequence of her psychosocial or neurological impairments.
276. Subsections 34(1)(aa) and 34(1)(f) of the NDIS Act are therefore not satisfied. The funding of ergonomic furniture is therefore not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Small mobility aids
277. Ms Atif seeks funding for small mobility aids. She provides no particulars or quotations.
278. The Agency correctly identifies this request as very ‘broad’. Ms Atif suggests in her oral evidence funding for a walking stick and ‘things that help me get my leg up’.
279. Ms Atif is funded for $1000.08 for consumables and low cost assistive technology. This funding would include the purchase of small mobility aids.
280. There is no evidence before the Tribunal to persuade me that the current funding of $1000.08 for consumables and low-cost assistive technology is insufficient as a reasonable and necessary support in respect of small mobility items.
Smart kitchen appliances
281. Ms Atif withdrew her request for smart kitchen appliances on day 4 of the hearing.
Bathroom supports in shower, bathtub, towel and clothes heater, bidet
282. Item 1 in Schedule 2 of the NDIS Supports Transitional Rules provides that the following Day-to-Day living costs – accommodation and household ‘are not NDIS Supports for the purposes of section 10 of the NDIS Act’:
(i)standard household (including garden) items, appliances, tools and products
283. I am satisfied that these supports are standard household items. I am also satisfied that they relate to Ms Atif’s physical conditions and have no link or connection with Ms Atif’s needs that arise as a consequence of her psychosocial or neurological impairments.
284. Subsections 34(1)(aa) and 34(1)(f) of the NDIS Act is therefore not satisfied. The funding of bathroom supports in shower, bathtub, towel and clothes heater, bidet is therefore not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Assistive cleaning, equipment, including robotics and smart technology
285. Ms Atif withdrew her request for assistive cleaning, equipment, including robotics and smart technology on day 4 of the hearing.
Assistive and ergonomic gardening equipment;
286. Ms Atif explains that gardening is her ‘hobby’ and that she used to grow fruit and vegetables. As a result of her physical conditions she is no longer able to bend down. She seeks funding for items such as a stool, knee pads and a small buggy that can be used when gardening. She provides no quotations.
287. Item 1 in Schedule 2 of the NDIS Supports Transitional Rules excludes gardening equipment and provides that the following Day-to-Day living costs – accommodation and household ‘are not NDIS Supports for the purposes of section 10 of the NDIS Act’:
(i)standard household (including garden) items, appliances, tools and products
288. Subsection 34(1)(f) of the NDIS Act is therefore not satisfied. The funding of assistive and ergonomic gardening equipment is therefore not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Smart voice activated speakers
289. Ms Atif seeks funding for smart voice activated speakers. She explains that this will allow her to communicate with her children. She stated, ‘So if I want to communicate to my kids, I just call the speaker, OK, They reach out.’
290. She also explains that these speakers help with ‘reminders’ for matters such as the timing of medications. She states that she will often forget to take her medications.
291. She states that she is unable to use a smart phone to set reminders for her medication regime explaining that her phone is a ‘trigger’ for her PTSD and that she cannot bear the sound of a bell, a ring or an alarm.
292. Item 1 in Schedule 2 of the NDIS Supports Transitional Rules provides that the following Day-to-Day living costs – accommodation and household ‘are not NDIS Supports for the purposes of section 10 of the NDIS Act’:
(i)standard household (including garden) items, appliances, tools and products
293. I am satisfied that smart voice activated speakers are standard household items.
294. Subsection 34(1)(f) of the NDIS Act is therefore not satisfied. The funding of smart voice activated speakers is therefore not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Adapted e-bike;
295. Ms Atif withdrew her request for an adapted e-bike on day 4 of the hearing.
Air filters
296. Ms Atif seeks funding for an air filter machine so that she can have ‘clean air’. She explains that she gets ‘sick a lot’ and that with clean air it would ‘help me not to get sick’.
297. Item 1 in Schedule 2 of the NDIS Supports Transitional Rules provides that the following Day-to-Day living costs – accommodation and household ‘are not NDIS Supports for the purposes of section 10 of the NDIS Act’:
(i)standard household (including garden) items, appliances, tools and products
298. I am satisfied that an air filter machine is a standard household item.
299. . Subsection 34(1)(f) of the NDIS Act is therefore not satisfied. The funding of an air filter machine is therefore not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Subscriptions for recreation and hobbies;
300. Ms Atif withdrew her request for subscriptions for recreation and hobbies on day 4 of the hearing.
Respite STA;
301. Ms Atif seeks funding for 28 days per year of short term accommodation (STA) together with fares, accommodation tickets, airfare, activity costs, food and travel.
302. Ms Atif relies on the report of Ms Nawrocki which states[66]
‘Due to Erum’s physical and psycho-social disability, and her responsibilities to care for her 4x children (who all live with a disability), Erum would benefit from respite services 4x per year. This will enable Erum to gain relief from her carer role and assist Erum in managing her health.’
[66] T8
303. The NDIA’s operational guidelines for ‘Short Term Accommodation’ dated 24 June 2022 provide the following description of the support:
Short Term Accommodation funding can be used for respite to support you and your carers. This gives your carers a short break from their caring role.
Sometimes a short stay away from home:
• gives you the chance to try new things
• can be a place to make new friends or develop new skills
• may help to maintain your current living situation by giving your informal supports a break.
Short Term Accommodation may suit your needs if your usual support network isn’t available for a short period.
304. Ms Atif’s evidence is that she has no informal supports. The Agency contends that as a participant in the NDIS, Ms Atif relies on supports provided by professional paid support workers. In these circumstances, there is no need for Ms Atif to have funding for STA so that her carers can receive a break from their responsibilities.
305. The Operational Guidelines also state that:
‘Short Term Accommodation is not for holidays. We only fund Short Term Accommodation when the need for this is related to your disability, such as for respite or skill building.’
306. Ms Atif’s oral evidence can be summarised as follows:
· Her understanding is that 28 days is the ‘maximum’ allowance for STA and for that reason this number of days is sought;
· At times her depression and anxiety becomes too much and she just wants to ‘run away from everything’;
· She believes that STA will really improve her well-being;
· She proposes that she has STA with a support worker on a 1:1 ratio;
· When asked where she proposed to take STA Ms Atif stated that she comes from a ‘beach city and sometimes I just want to go to the beach but I will need help to go and stay.’
· Ms Atif also stated that STA respite ‘will help with helping me regulate, helping me be mindful, practise some of the things that I'm learning, do a little bit exploration because sometimes I just want to look at the sky for hours and I don't want anyone bothering.’
307. The Agency submits that subsection 34(1)(f) of the NDIS Act is not satisfied. In doing so the Agency contends that STA is sought for the purpose of providing Ms Atif with relief from her parenting role and to manage her health. The Agency relies on item 14(e) on Schedule 2 of the NDIS Supports Transitional Rules which provides that the following ‘Child protection and family support ‘is not an NDIS Support for the purposes of section 10 of the NDIS Act’:
(e) babysitting, nannying services, and au pairs;,
308. The Agency also submits that the evidence does not demonstrate that STA Respite is ‘necessary’ to address Ms Atif’s support needs that arise from her neurological and/or psychosocial impairments for the purposes of section 34(1)(aa) of the NDIS Act.
309. I refer to my reasoning in [184] and [185] above.
310. I also note that item 6 of Schedule 2 of the NDIS Supports Transitional Rules provides that the following Day-to-Day living costs – travel and transport ‘are not NDIS Supports for the purposes of section 10 of the NDIS Act’:
(a) cruises, holiday packages, holiday accommodation, and airfares, including interstate and overseas travel, and passports, visas, activities and meals included in travel;
311. Based on the evidence, I am not satisfied that STA is a reasonable and necessary support for funding in Ms Atif’s SOPS. My considerations are as follows:
· I am satisfied that the primary purpose of STA is to provide Ms Atif with a break from her parenting responsibilities. In effect, she seeks a holiday or ‘time out’ from what must be an exhausting role as a single parent with 4 children;
· Ms Atif’s desire and longing for a respite opportunity from her children is understandable in the context of her living circumstances which include no family or other informal supports;
· STA is not sought to manage her psychosocial and neurological impairments. It is sought to manage her physical exhaustion in her caring role as a single mother of 4 children;
· Ms Atif’s desire and longing for a respite opportunity from her children is not unique to her disability and would no doubt be a common desire of many parents (single or otherwise), particularly those with the care and responsibility of 4 children;
· Ms Atif does not seek STA so that her carers can receive a break from their responsibilities of caring for her. Her carers are all paid service providers.
312. I am therefore satisfied that the funding of 28 hours per year for STA is not a support which addresses the needs of Ms Atif which arise as a result of her psychosocial and neurological impairment. Subsection 34(1)(aa) of the NDIS Act is therefore not satisfied.
313. I am also satisfied that subsection 34(1)(f) is not satisfied on the basis that is not an NDIS support for the purposes of section 10 of the NDIS Act and the Transitional Rules.
314. Section 34(1) of the NDIS Act is therefore not satisfied. The funding of 28 days per year of short term accommodation (STA) together with fares, accommodation tickets, airfare, activity costs, food and travel is therefore not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Ergonomic disability hair shaver, ergonomic nail clippers, ergonomic hair clipping device and shower tool
315. Ms Atif seeks funding for supports that she identifies as an ‘ergonomic disability hair shaver, ergonomic nail clippers, ergonomic hair clipping device and shower tool’. She provides no quotations on the costs of these items or any meaningful particulars.
316. In her oral evidence she explained:
· That due to her physical disability she cannot cut her toenails. In this regard she does not have the ‘physical’ ability to exert enough pressure to use ordinary nail clippers to cut her nails;
· That the nail clippers would also be because of ‘infections’ in her feet;
· The hair clipping device would allow her to cut her own hair in the context of disliking others touching her hair;
· The shower tool would make her more inclined to have a shower;
· She refers to a long handled battery operated shower brush and explains that this device will help her to scrub her skin.
317. The Agency relies on item 3(a) of Schedule 2 of the NDIS Supports Transitional Rules which provides that the following ‘Day-to-day living costs – food and groceries’ are not an NDIS Support for the purposes of section 10 of the NDIS Act;
(a) groceries including all food, beverage, cleaning, household and health products;
318. Ms Atif has provided no clinical evidence that these items are related to her psychosocial and neurological impairments. I am therefore satisfied that section 34(1)(aa) of the NDIS Act is met.
319. I also accept that these items are in fact ‘health products’ within the meaning of item 3(3) of Schedule 2 of the NDIS Supports Transitional Rules. Subsection 34(1)(f) of the NDIS Act is therefore also not satisfied.
320. Section 34(1) of the NDIS Act is therefore not satisfied. The funding of ‘ergonomic disability hair shaver, ergonomic nail clippers, ergonomic hair clipping device and shower tool’ is therefore not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS also accept that
Continence supplies, personal protective equipment, personal hygiene products
321. Ms Atif seeks funding for the following items:
· ‘continence supplies‘ and refers to items which include, two waterproof mattress protectors, panty liners, panty wipes, diapers. She explains that sometimes she gets ‘really sick and I can’t even go to the bathroom, maybe some diapers’.
· face masks as personal protective equipment ‘because I get sick support and because of others’. She explains that face masks will allow her to avoid smelling cleaning products when used in her home which result in an ‘instant migraine’ for her.
· personal hygiene products such as flushable face and bath wipes, odour removers, no rinse bath soap and dry shampoo.
322. The Agency relies on item 3(a) on Schedule 2 of the NDIS Supports Transitional Rules which provides that the following ‘Day-to-day living costs – food and groceries’ are not an NDIS Support for the purposes of section 10 of the NDIS Act;
(a)groceries including all food, beverage, cleaning, household and health products;
323. Ms Atif provides no clinical evidence such as a continence assessment in respect of her request for continence supplies. Ms Atif has provided no clinical evidence sufficient to satisfy me that any of these items are related to her psychosocial and neurological impairments. On the contrary, I am satisfied that MS Atif’s request for funding of these items is based on a combination of physical conditions and the convenience of her personal hygiene. I am therefore satisfied that section 34(1)(aa) of the NDIS Act is not met.
324. I also accept that these items are in fact ‘health products’ within the meaning of item 3(3) of Schedule 2 of the NDIS Supports Transitional Rules. Subsection 34(1)(f) of the NDIS Act is therefore also not satisfied.
325. Section 34(1) of the NDIS Act is therefore not satisfied. These items therefore are not a ‘reasonable and necessary’ supports for the purposes of Section 34(1) of the NDIS Act and cannot be included in Ms Atif’s SOPS.
Decision
326. The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2025 (Cth).
327. I certify that the preceding 326 (three hundred and twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins.
……..…[SGD]…..........
Associate
24 June 2025
Date(s) of hearing: | 12, 14, 15, 16 May 2025 |
| Applicant: Solicitors for the Respondent: | Ms Erum Atif Moray and Agnew |
Counsel for the Respondent: | Ms Jennifer Flinn |
- AGLC
- ATIF and National Disability Insurance Agency (NDIS) [2025] ARTA 821
- Case
- [2025] ARTA 821
- Decision Date
CaseChat Overview and Summary
The legal issues the court had to address included whether the NDIS had properly interpreted and applied the criteria under section 34 of the National Disability Insurance Scheme Act 2013 (Cth) in determining the participant's eligibility for the requested supports. This involved a detailed examination of the evidence presented concerning the participant's functional impairments and how these related to the need for the various proposed interventions. The court also needed to consider whether the NDIS had appropriately balanced the participant's right to reasonable and necessary supports against the broader resource constraints of the scheme.
In its decision, the court found that the NDIS had appropriately considered the participant's needs and the evidence provided. The court was satisfied that the NDIS had applied the correct legal standards in evaluating the participant's eligibility for the proposed supports. It was determined that the NDIS had not erred in its assessment, and thus the decision to affirm the NDIS's decision was upheld. The court concluded that the NDIS had fulfilled its obligations under the Act and that the decision to limit the supports as it did was both reasonable and lawful.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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