BDRY and National Disability Insurance Agency - [2023] AATA 3379

BDRY and National Disability Insurance Agency [2023] AATA 3379 (19 October 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/4294
Re:BDRY
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member D Barker
Date:19 October 2023
Place:Sydney

The Tribunal affirms the Decision under review.

....................................[SGD]....................................
Member D Barker
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – home repairs more appropriately funded by NSW Department of Communities and Justice Housing – consumables covered by assistive technology funding – capacity to add consumables funding with a s 47A variation – decision affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Residential Tenancies Act 2010 (NSW)
CASES
Burchell and National Disability Insurance Agency [2019] AATA 1256
Fear by his mother Vanda Fear and National Disability Insurance Agency [2015] AATA 706
McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121
National Disability Insurance Agency v WRMF (2020) 276 FCR 415
XNTW and National Disability Insurance Agency [2023] AATA 759
SECONDARY MATERIALS
National Disability Insurance Agency, Our Guidelines – Mainstream and community supports – Who is responsible for the supports you need? – Housing and community infrastructure (Web Page) < Disability Insurance Agency, Our Guidelines – Supports you can access - menu – Home and living supports – Home modifications (Web Page) <
NSW Department of Communities and Justice, Housing and homelessness – Tenant Repair Costs Policy (Web Page, accessed 6 September 2023) <
NSW Department of Communities and Justice, Housing Pathways – Evidence Requirements Information Sheet DH3001a (August 2023)
NSW Department of Communities and Justice, Repairs, modifications and maintenance to a property – Requesting maintenance and reporting problems (Web Page) < NSW, Housing and property – Social housing – Property maintenance issues and problems (Web Page) <
REASONS FOR DECISION
Member D Barker
19 October 2023
APPLICATION

BDRY (the Applicant) is a ten-year-old participant in the National Disability Insurance Scheme (NDIS) who has diagnoses of Autism Spectrum Disorder (ASD) (Level 3)[1], Global Developmental Delay (GDD)[2], Attention Deficit Hyperactivity Disorder (ADHD) and sleep disorder[3]. He has a disability arising from language difficulties, severe sensory processing difficulties and other impairments resulting from these conditions[4]. The Applicant gained access to the NDIS on the basis of his ASD (Level 3) on 16 August 2016[5].
[1] Joint Hearing Bundle (JB), p 43).
[2] Ibid.
[3] Ibid, p 49.
[4] Ibid, pp 288-336.
[5] Respondent’s Statement of Facts, Issues and Contentions (SFIC), [4].
The Applicant lives in Sydney with his mother (Ms BDRY), who is also his representative in these proceedings, and six siblings who are aged between five and 22 years. A younger sister is also a participant of the NDIS.
Ms BDRY made an application to the Administrative Appeals Tribunal (the Tribunal) on 24 June 2021[6] on behalf of her son seeking a review of an internal review decision made by a reviewer of the National Disability Insurance Agency (the Respondent or NDIA).
[6] JB, p 1.
The Tribunal’s jurisdiction arises under s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), operating in conjunction with s 103 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).
For the reasons set out below, the Tribunal affirms the decision under review.
BACKGROUND
There is a history of ASD in both the Applicant’s paternal and maternal families. The Applicant was born at full-term via natural delivery following an uncomplicated pregnancy. He was discharged from hospital after birth with no complications and is reported to have met all early milestones within expected intervals. The Applicant’s language development was delayed and at 18 months of age, he was assessed to have partial hearing. The Applicant had grommets inserted in October 2015, when he was two years of age. The Applicant’s hearing was subsequently assessed as normal, however he remained non-verbal until the age of four and displayed increasing difficult behaviours over time[7].
[7] Ibid, p 296.
The Applicant was referred to a Paediatrician in 2016, Dr Macdessi, who assessed and diagnosed him with ASD. He was subsequently diagnosed with a severe level of GDD and severe language impairments by Liverpool Health Service, also in 2016.[8]
[8] Ibid.
Goals identified in the Applicant’s NDIS Plans which are discussed in these Reasons are as follows:
Short term goal:
(a)I would like to improve my language and communication skills to develop my social skills.
(b)I would like me to be able to regulate my emotions to improve my relationships.
Medium or long-term goal:
(a)I would like to develop my social skills to further my independence.
(b)I would like to improve on my self-care skills to further my independence.
(c)I would like to improve my cognitive skills to develop my daily living skills.
(d)I would like to improve on my fine and gross motor skills to develop my daily life.[9]
[9] JB, pp 94-95.
In relation to the Applicant’s goal of improving their self-care skills to further their independence, a consistent example provided in their NDIS Plans was to become more independent in daily living skills, with particular reference to becoming more independent when using the toilet. In relation to how the Applicant will be supported with this goal, the NDIS Plans state that he will be provided with opportunities at home to practice skills and strategies to support the goal.
Statement of Participant Supports and NDIS Plan – 6 April 2021
On 6 April 2021, a delegate of the CEO of the NDIA made a decision under s 33(2) of the Act to approve a SOPS in the Applicant’s NDIS Plan for the period 6 April 2021 to 6 April 2022[10].
[10] Ibid, pp 129-142.
Under this SOPS, total funding of $53,736.48 was approved for the period 6 April 2021 to 6 April 2022, including:
(a)Core Supports of $21,246.55 NDIA-managed, including:
(i)$1,000 for assistive technology for the purchase of Basic (Level 1) and Standard (Level 2) assistive technology, and minor repairs to assistive technology, to support the Applicant to achieve their goals and outcomes;
(ii)funding for 1 hour per day to assist and/or supervise daily care needs.
(b)Capacity Building Supports of $32,489.93, including:
(i)$9,311.52 Plan-managed - Improved Daily Living (CB Daily Activity) for:
oOccupational therapy - 24 hours, plus time for report writing;
oSpeech therapy - 12 hours, plus time for report writing;
oPhysiotherapy - 12 hours; and
oTherapy assistant to support with implementing strategies - 3 hours per week.
(ii)$10,312.10 NDIA-managed (CB Relationships) for:
o$6,432.30 Specialist Behavioural Intervention Support – 30 hours;
o$3,879.80 Behaviour Management Plan including Training In Behaviour Management Strategies – 20 hours;
(iii)$6,573.84 Plan-managed - Increased Social and Community Participation (CB Social Community Civic); and
(iv)$4,806.72 NDIA-managed - Support Coordination.
The Internal Review Decision
On 12 April 2021, Ms BDRY on behalf of the Applicant applied for an internal review of the decision to approve the SOPS on 6 April 2021. Interaction notes recorded by the Respondent[11] indicate that in asking for the internal review Ms BDRY requested:
(a)an increase in the Core budget for Consumables and additional support hours for self-care activities;
(b)an increase in Capacity Building budget for additional occupational therapy, speech therapy and physiotherapy support;
(c)a 12 month plan duration; and
(d)budget to be plan-managed.
[11] JB, pp 74-76.
On 7 June 2021, a delegate of the CEO of the NDIA made a decision under s 100(6)(a) of the Act (the internal review decision) to confirm the statement of participant supports approved on 6 April 2021[12].
[12] JB, p 17.
The AAT Review Application
On behalf of the Applicant, Ms BDRY, on 24 June 2021, applied to the Tribunal for a review of the internal review decision[13]. Ms BDRY provided the following explanation for why she considered the internal review decision was wrong:
[13] Ibid, p 1.
My son cannot tell you what he needs and I, as his parent will be his voice.
1. I want to have the PLAN option as self- managed so that I can get the same carers that used to work with my son as they are not an NDIA registered but were the ones who used to make sure my son was out everyday either at the park or pools or even around other kids his age through a brotherhood program.
The NDIS keep cutting off funding under all categories and cut off dramatically, he has become more angry and frustrated and self harming more via biting and hitting anyone in sight when not being understood and all he does now is stay at home.
For example, under core support, the NDIS approved only ONE HOUR 1 hr per day of support, have forced me to change the option of my plan to an Agency Managed which is much not flexible and is harder to appoint a support worker, it is restrictive in my case. My support coordinator is not able to find someone willing to work with him or that I can trust bringing into my home as I'm a single parent with 7 kids trying to make it all work. I have another child who is on the NDIS with intellectual delays.
Since his Speech and OT therapies have dropped to 1 day a week he is not benefiting at all when they do come to work with him as his behaviour has gotten worse because of all this new plan where the NDIS believe that what his getting is more than he needs.
I want my son to lead a normal life.
I want him to make friends he has no friends
I want to have a conversation with my son and be able to ask him - How was your day? Did you have fun at school? How do you feel?
I wish that I can get responses for these questions from him but I can't as my son just repeats what you ask he has no answers as he does not comprehend anything that you say just repeats what you say.
In addition, my sons school also strongly believe that my son needs more than what he is receiving right now. We are having to deal with his aggressive behaviour on many occasions where I had to go pick him up as he would hit teachers as well as students. At the moment, he is suspended from school which make it even worse for his situation to improve. His therapists have stated that the one day is not enough for him whatsoever.[14]
[14] JB, p 5.
The Statement of Participant Supports and NDIS Plan – 31 May 2023
In the course of these proceedings and at the request of the Parties the Tribunal considered and found it appropriate to, on 29 May 2023, remit the reviewable decision for further consideration to the Respondent pursuant to s 42D of the AAT Act. The Respondent’s delegate reconsidered the reviewable decision on 31 May 2023. This resulted in the Respondent’s delegate making a new decision to approve another SOPS in the Applicant’s Plan[15]. This decision is now the decision that is under review for the purpose of this review application.[16]
[15] NDIS Plan approved on 31 May 2023, filed by the Respondent on 31 May 2023.
[16] S 42D(4)(a) of the AAT Act.
This SOPS approved total funding of $146,550.33 for the period 31 May 2023 to 31 May 2024, including:
(a)Core Supports of $96,968.00 Plan-managed, including:
(i)$1,000 for assistive technology; and
(ii)funding for 5 hours per day to assist and/or supervise daily care needs;
(b)Capacity Building Supports of $49,581.73, including:
(i)$25,606.68 Plan-managed - Improved Daily Living (CB Daily Activity) for:
o60 hours with an occupational therapist to increase independence with activities of daily living, plus time for report writing;
o60 hours with a speech therapist to increase communication skills, plus time for report writing; and
o12 hours with physiotherapist to improve gait and strength;
(ii)$10,312.10 NDIA-managed (CB Relationships) for:
o$6,432.30 Specialist Behavioural Intervention Support; and
o$3,879.80 Behaviour Management Plan including Training In Behaviour Management Strategies;
(iii)$7,370.48 Plan-managed - Increased Social and Community Participation (CB Social Community Civic); and
(iv)$4,806.72 NDIA-managed - Support Coordination.
Specifically identified in the SOPS as not covered by the core support budget is funding for cleaning, home maintenance or any other expenses which are not the Applicant’s disability specific support needs.
On behalf of the Applicant, Ms BDRY conveyed the wish to progress with the review application in relation to the remaining issues in dispute.
Requested Supports
The Statement of Facts, Issues and Contentions (SFIC) prepared by the Respondent on 28 April 2023, prior to the new SOPS and Plan of 31 May 2023, indicated that their understanding was that there were three remaining issues in dispute in this matter:
(a)Support one – 2 hours per week of physiotherapy;
(b)Support two – $7,500 per year in consumables funding; and
(c)Support three – request for home modifications funding (unspecified) to repair damage to the Applicant’s home.
The Respondent’s SFIC identified additional supports for the Applicant which had been resolved by agreement, or accepted as reasonable and necessary by the Respondent and as a consequence were no longer in dispute, as follows:
(a)Support four – request for core funding to be plan-managed;
(b)Support five – 35 hours per week of support worker assistance;
(c)Support six – 60 hours per year in capacity building funding for speech therapy; and
(d)Support seven – 60 hours per year in capacity building funding for occupational therapy.
In their SFIC, the Respondent noted that the Applicant had abandoned the request for additional costs incurred due to disability-related swimming lessons.
By way of email on 30 May 2023 Ms BDRY confirmed that from her view, the only things remaining in dispute between the parties are:
(a)Consumables – that is funds that therapist or core support workers use for sensory items, or things to help with BDRY’s progression; and
(b)Repairs – for damage to the family home (replacement of broken doors, holes in walls requiring patching and painting) caused by the Applicant over the past two years in which the Applicant has not had a core support worker, speech therapy or occupational therapy support.
ISSUES
The issues arising in this application are:
(a)whether the Requested Supports are prohibited under Support Rules to be applied in the making of a decision to approve a SOPS; and if not
(b)whether the Requested Supports are “reasonable and necessary supports” under s 34(1) of the NDIS Act and should be funded under the Applicant’s NDIS Plan.
LEGISLATION
The NDIS was established under the NDIS Act and operates in pursuit of the objectives set out in s 3 of the NDIS Act. Section 4 establishes general principles guiding actions to be taken under the NDIS Act.
A participant’s plan must be prepared in accordance with the NDIS Act and regulations made under s 32A of the NDIS Act. It must include a SOPS. The SOPS must be approved in accordance with the NDIS Act, and any regulations made under the NDIS Act, such as the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Support Rules).
Section 31 of the NDIS Act sets out several principles that apply in the development of a NDIS plan for a participant. The purpose of the plan is to state how the funds provided for the participant’s supports are to be managed. The plan is the instrument that governs what funding the participant is entitled to receive under the scheme. Each plan must have in it an approved SOPS and a plan does not take effect until a SOPS forming part of the plan has been approved by the CEO under s 33(4) of the NDIS Act. Specifically, s 33 of the NDIS Act sets out certain matters that must be included in a participant’s plan, including the participant’s statement of goals and aspirations (s 33(1)) and a SOPS, which is prepared with the participant and approved by the CEO (or his or her delegate), in accordance with s 33(2).
Section 33(5) of the NDIS Act requires that the CEO (or his or her delegate), in deciding whether to approve the SOPS under s 33(2), must:
(a)have regard to the participant’s statement of goals and aspirations; and
(b)have regard to relevant assessments conducted in relation to the participant; and
(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d)apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f)have regard to the operation and effectiveness of any previous plans of the participant.
Section 34(1) of the NDIS Act provides as follows:
(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.
The phrase ‘reasonable and necessary’ is not defined in the NDIS Act. In National Disability Insurance Agency v WRMF[17] (WRMF), the Full Federal Court observed that ‘the phrase connotes supports which meet a threshold which justifies – by reference to the context, objects and guiding principles of the [NDIS] Act and the facts of the case – the expenditure of public funds for that support, for a particular participant’. Reasonable and necessary is a composite phrase, and each limb of which must be given work to do[18]. In McGarrigle v National Disability Insurance Agency[19] (McGarrigle), Mortimer J explained the two limbs in the following terms:
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”.
[17] National Disability Insurance Agency v WRMF (2020) 276 FCR 415 at [151].
[18] Ibid at [149].
[19] McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121 at [91].

Determination of whether a support meets the reasonable and necessary criterion must be made on the basis of probative evidence[20].
[20] McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121 at [93].
Subsection 34(2) authorises the NDIS rules to prescribe methods or criteria to be applied, or matters to which the CEO is to have regard in deciding whether or not she is satisfied of the matters mentioned in paragraphs 34(1)(a) to (f).
Section 35 of the NDIS Act permits NDIS rules to be made about the content of a SOPS. Subsection 35(1) of the NDIS Act provides that the NDIS rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding, the reasonable and necessary supports or general supports that will be funded or provided under the NDIS[21], reasonable and necessary supports or general supports that will not be funded under the NDIS[22], and reasonable and necessary supports or general supports that will or will not be funded or provided under the NDIS for prescribed participants[23].
EVIDENCE AND SUBMISSIONS
[21] NDIS Act, s 35(1)(a).
[22] Ibid, s 35(1)(b).
[23] Ibis, s 35(1)(c).
The documents before the Tribunal include:
The ‘T-Documents’ (T1-T18, pp 1-237) provided under section 37 of the AAT Act to the Tribunal by the Respondent after the application for review was made, which comprises evidence provided by the Applicant to the Respondent and other documents available to the NDIA Internal Reviewer at the time of their decision.
The Applicant’s material as follows:
(a)Updated request for information & responses;
(b)Behaviour Assessment and Recommendation Report by Adam Conway, Provisional Psychologist, Upscale Care, dated 30 March 2022;
(c)Email from Just For Kids Therapy dated 24 February 2022;
(d)NDIS Plan Review Report by Mohammed Makkouk, Physiotherapist, dated 15 April 2022;
(e)Email from Sydney Olympic Park Authority dated 28 February 2022;
(f)Letter of support from Sharnez Elghoul, Support Worker, dated 18 February 2022;
(g)Positive Behaviour Support Plans prepared by Adam Conway, Provisional Psychologist and Behavioural Support Clinician, Upscale Care, dated 15 July 2022 and 28 September 2022;
(h)Annotated extract from Applicant’s NDIS Plan, approved 23 December 2020; and
(i)Letter of support regarding Ms BDRY from Dr Magedy Hawi, dated 20 January 2023.
The NDIA, being the Respondent in this matter, lodged the following documents with the Tribunal:
(a)Occupational Therapy Assessment Report prepared by Kate Morris, Occupational Therapist, dated 29 September 2022;
(b)NDIS Guidelines - Home Modifications;
(c)The NSW Communities and Justice Tenant Repair Costs Policy; and
(d)Applicant’s NDIS Plan and SOPS approved on 31 May 2023.
Other material was also provided as follows:
(a)Respondent’s SFIC dated 28 April 2023;
(b)Applicant’s SFIC email dated 30 May 2023;
(c)Respondent email regarding NSW legislation and policies regarding repair costs, dated 9 June 2023; and
(d)Applicant email statement in reply, dated 29 June 2023.
CONSIDERATION
Consideration of whether the repairs to the family home can be funded through the NDIS
The Tribunal considered whether the requested home modifications funding to repair damage to the family home caused by the Applicant (the home repairs) can be funded as a reasonable and necessary support through s 34(1) of the NDIS Act.
The requirements in s 34(1) of the NDIS Act can be grouped into 3 categories. Subsections 34(1) (a), (b) and (d) require the Tribunal to focus on the assistance an Applicant will get from being provided with a particular support. Paragraph (c) requires the Tribunal to assess whether the support represents value for money. Subsections 34(1)(e) and (f) focus on whether the NDIA is the right party to be providing the support. Subsection 34(1)(e) requires consideration of what can be expected of families and other voluntary providers, and s 34(1)(f) requires consideration of whether another service delivery system is more appropriate than the NDIS to provide or fund the support the support that is being sought.
Even if a support meets the requirements in s 34(a)-(d), the support can only be included in a SOPS if the decision maker, which is now the Tribunal, is satisfied that provision through, or funding by, the NDIS, is the most appropriate system for delivering the support. This is because, as is discussed earlier in these Reasons, the requirements in s 34(1) are cumulative and s 34 of the NDIS will not be met if any of the criteria in s 34(1) are not satisfied.
The Respondent contends that the NDIS is prohibited from funding general home maintenance and repairs (such as damage to internal walls) by operation of the ‘General criteria for supports’ which will not be funded under Part 5 of the Support Rules.[24] Part 5 of the Support Rules provides that:
[24] Respondent’s SFIC, [34].
General criteria for supports
5.1A support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
(b)it is not related to the participant’s disability; or
(c)it duplicates other supports delivered under alternative funding through the NDIS; or
(d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a)additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b)costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
The criteria in Rule 5.1 are notably linked through the term ‘or’ which means they do not all need to be met in order for the provision to be enlivened. If any of the four factors are applicable, the effect of the Rule 5.1 would be that the requested support cannot be funded through the NDIS. This is because the Tribunal takes Rule 5.1 to be prescriptive in nature. That is, it does not require the decision maker to just have regard to the factors, it prescribes what shall occur in a non-discretionary manner.
The Tribunal is satisfied that the requested home repairs are not likely to cause harm to the Applicant or pose a risk to others, such as his siblings, or mother. Accordingly, the provision in r 5.1(a) is not met.
The Respondent contends that in the absence of evidence demonstrating how home repairs relate to the Applicant’s disability, as required by r 5.1(b) of the Support Rules, there is no apparent link or connection between the requested home repairs and the Applicant’s disability support needs.[25]
[25] Respondent’s SFIC, [34].
Whereas Rule 5.2(a) makes reference to ‘disability support needs’, in describing additional living costs which are not precluded from funding through the NDIS under r 5.1(d), r 5.1(b) does not require there be a link or connection between the requested support and the Applicant’s support ‘needs’. Rule 5.1(b) provides that the NDIS will not fund the requested support if, the requested support – namely the home repairs ‘is not related to the participant’s disability’. The Tribunal therefore considered whether the claimed damage to the family home, prompting the request for funding to carry out the home repairs, is related to the Applicant’s disability.
The Applicant was diagnosed with significant GDD and ASD by the age of three years and three months. Subsequent assessment confirmed the diagnosis of ASD (Level 3).[26]
[26] JB, pp 43-48.
Ms BDRY gave evidence at the hearing that there are five bedrooms in the family home and not one bedroom has a door. Even cupboard doors, like the pantry, or the cupboard where she puts towels and shoes, are broken and are still hanging off. She explained that one of the cupboard doors is completely gone, and the other one is broken off. The toilet doors, in Ms BDRY’s bedroom where she has an ensuite bathroom, don’t close or lock, as the Applicant has broken the locks. Ms BDRY gave evidence that there are holes in the walls throughout the family home. In the lounge room, there are seven holes. There are holes in the walls in the kitchen, the hallway and in each of her children’s bedrooms there are holes behind the doors where he slams the doors against the walls.[27]
[27] Ibid.
A report prepared by Ms Rebecca Nguyen, Occupational Therapist, in August 2020 states:
[BDRY] has self-harming behaviour and harming others as well. He can kick and punch anyone that is around him and as well as damage walls and furniture. [BDRY] has history of slamming doors to wall, there are evidence around the home that walls and doors are broken.[28]
[28] Ibid, p 49.
In a letter also prepared in July 2021 Ms Marilyn Nguyen, Speech Pathologist from Just for Kids Therapy[29], reported that behaviours observed during speech pathology support provided at the Applicant’s home include: hitting and kicking anyone that is around him; biting self on the hand vigorously; crying and screaming; slamming doors against the wall causing damage to the walls; breaking windows; throwing items and furniture; and scratching.[30] Ms Nguyen states these behaviours are sometimes presented with no antecedents, but that at times, they can occur due to the Applicant: not getting what he wants; being asked to do something he does not want to do; being tired or frustrated due to lack of sleep; difficulties managing his emotions; difficulties understanding and expressing himself; and changes in routines.[31]
[29] Ibid, pp 30-35.
[30] Ibid, p 31.
[31] JB, p 31.
A further Occupational Therapy Report prepared by Ms Rebecca Nguyen on 11 December 2020[32] refers to “Throughout the home [BDRY] has significantly destroyed plaster boards, windows and doors due to his severe outburst and tantrums”.
[32] Ibid, pp 70-73.
Ms Kate Morris, the Occupational Therapist tasked by the Respondent to prepare an Occupational Therapy Assessment Report[33] notes that the Applicant has behaviours of concern which include:
·Property destruction – He frequently engages in destructive behaviours towards furniture, glass windows, fly screens, doors, walls and electrical appliances.
·Self-harming behaviours – [BDRY] bites himself, bangs his head against the door, or kicks / hits walls and doors.
[33] Ibid, pp 288–336.
Ms Morris’ report includes photographs of what is described as property destruction caused by the Applicant. As to the extent of damage, Ms Morris reports that “There were several holes throughout the house. The door was damaged in his sister’s room, and the shower head in the main bathroom was broken off. The fly screens in the main bedroom were ripped.”[34] In relation to behaviours of concern Ms Morris makes the clinical observation that:
[BDRY] was observed to engage in behaviours of property destruction, self-harm behaviours, attempted aggression towards his mother and verbal aggression during the assessment.[35]
[34] Ibid, p 318.
[35] Ibid, p 307.
In her Executive Summary and Opinion, Ms Morris provides a formulation of the Applicant’s difficulties, which states in part:
A review of recent treating medical and rehabilitation reports revealed insights into [BDRY]’s current condition. It is apparent that he has multiple complex issues, which are interrelated and impact upon each other. The overall impact of these issues is his reduced ability to function independently in everyday tasks and activities. This impacts on [BDRY]’s quality of life.
Predominantly, [BDRY]’s ability to remain well regulated, his impulsivity, concerning behaviours and his sensory processing difficulties impact on his ability to engage in and perform personal care tasks, engage in school tasks and community activities. The time taken to perform these tasks impacts on [BDRY]’s ability to engage in and develop independence in age-appropriate self-care skills, home participation, school performance and social and leisure and social opportunities.
Results from standardised assessments used in this assessment including the Sensory Processing Measure, the Paediatric Care and Needs Scale-2 (PCANS-2)2 and the WeeFIM® Instrument show that [BDRY] is functioning well-below other children his age – particularly in relation to adaptive behaviour and self-care skills, and social-emotional skills.
From my experience as an Occupational Therapist with 16 years of paediatric experience, this typically correlates with additional required care and support ‘over and above’ what would be expected for a child of the same age. It is evident from my assessment that [BDRY] requires care and support ‘over and above’ a child his age. This includes assisting him with daily selfcare activities (including feeding and toileting) and following a morning and afternoon routine, taking him out into the community and supporting him with the consistent implementation of therapy strategies and behaviour management.[36] (emphasis in original)
[36] JB, p 291.
A Positive Behaviour Support Plan prepared by Mr Adam Conway in July 2022[37] identifies the presenting problem of the Applicant is that he “frequently destroys property when he becomes dysregulated, and screams which is causing his family a great deal of distress”. In relation to precipitating factors, Mr Conway reports that:
[BDRY] has limited impulse control, meaning when he has an urge he acts on it and will not take direction. This is compounded by his cognitive deficits, which makes understanding emotional regulation and teaching him skills to manage his outburst increasing difficult. Furthermore [Ms BDRY] has 5 other children she needs to care for, and does not have sufficient time or resources to meet [BDRY]’s needs.[38]
[37] Ibid, p 269.
[38] Ibid, p 269.
After reviewing the available evidence, the Tribunal is persuaded there is a link between the damage to the family home and the Applicant’s disability, with the link being the Applicant’s propensity to deregulate and display repetitive aggressive behaviours such as slamming doors, throwing objects and using force against inanimate objects such as cupboard doors, furniture and similar items when he is in a dysregulated state. There is evidence that the Applicant becomes dysregulated in situations where he has difficulty managing sensory inputs, such as noises associated with thunderstorms, or where he cannot manage interpersonal stressors and other factors which exceed his affect tolerance capacities. The Tribunal is satisfied the evidence of the health professionals referred to above, and that of Ms BDRY, show that the maladaptive behaviours displayed by the Applicant, which result in the damage to walls, doors and fly screens in the family home, are behaviours and challenges associated with ASD and the Applicant’s other conditions, such as GDD, ADHD and sleep disorder.
In the view of the Tribunal the evidence establishes a link between the damage in the family home and the Applicant’s disability. The Tribunal is not persuaded the Applicant’s aggressive behaviour can be regarded as merely wilful. As the request is for funds to be available in the SOPS to pay for repairs to the damage caused to the family home by the Applicant, the Tribunal is satisfied there is a link between the Applicant’s disability and the requested support. Accordingly, the Tribunal finds that the support is linked to the Applicant’s disability and as a consequence the provision in r 5.1(b) is not met.
Rule 5.1(c) states that the support will not be funded through the NDIS if it duplicates other supports delivered under alternative funding through the NDIS. There is no evidence or contentions that the requested support for home repairs duplicates other supports delivered under alternative funding through the NDIS. Accordingly, the provision in r 5.1(c) is not met.
Rule 5.1(d) states that the support will not be funded through the NDIS if it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs. The repairs identified by MS BDRY pertain to repairing holes in internal walls and doors which have been damaged by the Applicant and which the NSW Department of Communities and Justice - Housing (DCJ - Housing or as referred to by Ms BDRY, the Housing) contractors declined to repair.
The Respondent contends that general household maintenance and repairs constitute day-to-day living costs, which are prohibited by r 5.1(d) of the Rules.[39] It is the view of the Tribunal that repairs and property maintenance as described by Ms BDRY can be regarded as a day-to-day living cost. This is because, as with examples given in the Support Rules, such as rent and utility fees, these costs are not required to be funded on a daily basis, but rather, on a periodic basis, albeit not perhaps as regular a periodic basis as rent. However, the Tribunal is not, for the reasons discussed in relation to r 5.1(b) persuaded the day to day living costs are not attributable to the Applicant’s disability and as a consequence the provision in r 5.1(d) is not met.
[39] Respondent’s SFIC, [34].
As none of the provisions of r 5.1 are met, in the view of the Tribunal the requested support for repairs to the family home due to damage caused by the Applicant is not precluded from funding through the NDIS due to r 5.1.
Rule 3.5 of the Support Rules provides that Schedule 1 sets out matters for the CEO to have regard to in considering whether supports are most appropriately funded or provided through the NDIS, rather than through other service systems.[40]
[40] ‘Service systems’ is defined in paragraph 6.4 to means general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered: (a) as part of a universal service obligation; or (b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Rules of particular relevance to this matter in Schedule 1 include the following:
7.1The Act limits the supports that can be provided or funded under the NDIS to supports that are not more appropriately funded or provided through other service systems, for example as part of a universal services obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
7.2The considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by the NDIS or another service system.
7.3For the avoidance of doubt, while this Schedule sets out considerations relevant to whether a support should be considered to be more appropriately provided or funded through another service system, it does not purport to impose any obligations on another service system to fund or provide particular supports.
Schedule 1 amongst other areas, sets out matters to have regard to in relation to ‘Housing and community infrastructure’ and states in part:
7.19The NDIS will be responsible for:
(a)supports to assist a person with disability to live independently in the community, including by building their capacity to maintain a tenancy, and support for appropriate behaviour management; and
(b)home modifications for accessibility for a person in private dwellings; and
(c)home modifications for accessibility for a person in legacy public and community housing dwellings on a case-by-case basis but not to the extent that it would compromise the responsibility of housing authorities to develop, maintain and refurbish stock that meets the needs of people with disability; and
(d)user costs of capital in some situations where a person requires an integrated housing and support model and the cost of the accommodation component exceeds a reasonable contribution from individuals.

The provisions of r 7.19 are linked by the term ‘and’ however they are not in the view of the Tribunal cumulative such that if not all four provisions in 7.19 are met, the NDIS will not be responsible for funding the requested support.
Rule 7.19(b) is not applicable, as Ms BDRY’s family home is not a private dwelling. It is social housing provided through DCJ - Housing in NSW.
The Tribunal acknowledges the Respondent’s contention that there is a lack of evidence regarding Ms BDRY’s tenancy agreement with DCJ - Housing, or of the property build date, and that the NDIS will also not be responsible for modifications to legacy public or community housing dwellings “to the extent that it would compromise the responsibility of housing authorities to develop, maintain and refurbish stock that meets the needs of people with disability” [41] (emphasis in original).[42] The requested home repairs are to repair damage and are not for the purpose of home modifications for accessibility. Therefore r 7.19(c) is not satisfied.
[41] Rule 7.19(c) of Schedule 1 to the Rules
[42] Respondent’s SFIC, [37].
Rule 7.19(d) is not met, as the Applicant is in the care of his mother where costs of capital associated with an integrated housing and support model are incurred and where there is an applicable accommodation component.
The Tribunal is however satisfied that the requested support, being the home repairs, could be taken to assist the Applicant to live independently in the community, including by building his capacity to maintain a tenancy, and support appropriate behaviour management. This is because the requested support for home repairs, to ensure the family home is maintained at a sufficient standard to be safe and appropriate to live in, in the view of the Tribunal needs to be understood in conjunction with other supports in the Applicant’s SOPS, which cumulatively work towards achieving the Applicant’s NDIS goals, which are congruent with building the Applicant’s capacity for appropriate behaviour management.
Accordingly, the Tribunal is of the view that under the provisions of r 7.19(a) of Schedule 1, the requested support for repairs to the family home will be the responsibility of the NDIS, unless they are prohibited by another relevant provision in the NDIS Act or Support Rules.
The Respondent contends that the requested support for home repairs does not meet the requirement this support is most appropriately funded by the NDIS, as required by s 34(1)(f) of the Act. In support of this contention the Respondent notes that the NDIS will generally not be responsible for home modifications for public and community housing dwellings, unless these are legacy dwellings which are to be assessed on a case-by-case basis[43]
[43] National Disability Insurance Agency, Our Guidelines – Mainstream and community supports – Who is responsible for the supports you need? – Housing and community infrastructure (Web Page) < cited in Respondent’s SFIC, [37].
As discussed above, s 34(1)(f) requires that the support is most appropriately funded or provided through the NDIS, 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: as part of a universal service obligation; or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The NDIS Operational Guidelines include a section dealing with home modifications as a potential support.[44] The guidelines explain that home modifications are custom-built changes to a NDIS participant’s home to help them access and use areas of their home. The guidelines explain that home modifications can be minor changes like widening a doorway, or they can be more complex, like changes involving a few areas in your home. The example is provided of combining a bathroom and toilet to give more room to use a hoist or shower chair.[45]
[44] National Disability Insurance Agency, Our Guidelines – Supports you can access - menu – Home and living supports – Home modifications (Web Page) < National Disability Insurance Agency, Our Guidelines – Supports you can access - menu – Home and living supports – Home modifications (Web Page) <>
The Operational Guidelines explain that whilst the NDIS can fund home modification supports that meet NDIS funding criteria, the NDIA generally don’t fund a range of features, which include: repairs to pre-existing damage to a NDIS participant’s home outside the immediate area where they need home modifications, or standard living costs or routine repairs and maintenance that landlords or homeowners are usually responsible for.
Of particular relevance to the Applicant’s circumstances, living as they do with their family in public housing provided by the NSW Department of Community & Justice (DCJ), the Operational Guidelines state, with respect to the issue of whether the home modification should be funded or provided by another service:
What if you live in community or public housing?
If you need modifications to your community or public housing, you should first contact your state or territory public housing authority. They are responsible for making reasonable adjustments.
For example, your public housing authority might install lever taps or grab rails. Or they might improve general access to your home with a simple access ramp.
If you live in public housing and you need highly specialised or high cost modifications, we might be able to fund them. To help us work out if the modifications are most appropriately funded by us, first we consider if your public housing provider has another more suitable home available for you. Or if they can help you find another home with a different community housing authority.
If you live in community or public housing and want us to fund modifications, you are responsible for getting written agreement from the owner to modify your home.
If you live in a remote or very remote location and need modifications to your home because of your disability, our remote planners or remote community connectors can help you through this process.[46]
[46] Ibid.
The Operational Guidelines primarily discuss modifications to a home, whether these be minor or complex and the Tribunal notes that repairing damage is not the same thing as a modification to a home to make, for instance, a bathroom more accessible to a NDIS participant. The Operational Guidelines do however have a section titled ‘What if your home needs repairs before it’s modified?’. Whilst this section remains primarily focused on home modifications it does provide the following information: “We [the NDIA] don't usually provide funding to fix existing problems like major structural or water damage, unless these directly affect the modifications”; and “We don’t fund general home maintenance or repairs to your home that aren’t related to your disability. This is because anyone who owns a home is responsible for their own maintenance and repairs, whether or not they have a disability.”[47]
[47] National Disability Insurance Agency, Our Guidelines – Supports you can access - menu – Home and living supports – Home modifications (Web Page) <>
The Tribunal considers the latter two sentences to be confusing, in that the Operational Guidelines first say that the NDIA do not fund general home maintenance or repairs to a participant’s home that ‘aren’t related’ to their ‘disability’, but then explain this by saying this is ‘because anyone who owns a home is responsible for their own maintenance and repairs, whether or not they have a disability’. In any event, the Tribunal does not consider it necessary to resolve this confusion, as the Operational Guidelines, as policy, are not binding on the Tribunal as with legislation such as the NDIS Act and the Support Rules.
Responsibilities between social housing tenants, such as Ms BDRY and, through her care, the Applicant, and DCJ - Housing are governed by the Residential Tenancies Act 2010 (NSW) (the Residential Tenancies Act). Section 63 of the Residential Tenancies Act states that it is the landlord’s obligation to “provide and maintain the residential premises in a reasonable state of repair”.
The Tenant Repair Costs Policy of DCJ is intended to identify liability for damage to a property in which DCJ, as the landlord’s managing agent, determines the tenant is responsible for the damage and the associated cost of repairs. The policy, amongst other things, states that the landlord, Land and Housing Corporation, is responsible for maintaining the tenant's premises to a reasonable standard; and the tenant is responsible for the cost of repairs due to intentional damage or neglect that is caused by the tenant, a member of the tenant's household, a pet or a visitor who enters the tenant's premises with the tenant's permission.[48]
[48] NSW Department of Communities and Justice, Housing and homelessness – Tenant Repair Costs Policy (Web Page, accessed 6 September 2023) <
In relation to determining responsibility, the DCJ Tenant Repair Costs Policy states that the tenant’s responsibility includes damage that is intentional, or neglect leading to damage, that is caused by any member of the household, pets or any visitor who enters the premises with the tenant's permission[49]. The DCJ Tenant Repair Costs Policy states that DCJ - Housing will “Consider whether ill health or inability to maintain the premises has contributed to the damage. For example, if the damage has been caused by children or adults with challenging behaviours, mental illness or disability which could not be reasonably prevented. In these circumstances the tenant is required to provide evidence. For more information see item 16 on the Evidence Requirements Information Sheet.”[50]
[49] NSW Department of Communities and Justice, Housing and homelessness – Tenant Repair Costs Policy (Web Page, accessed 6 September 2023) < Ibid.

In considering whether the requested home repairs are not more appropriately funded or provided by DCJ - Housing as another general system of service delivery or support services, offered as part of a DCJ - Housing universal service obligation; or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability[51] the Tribunal notes that the aforementioned item 16 on the DCJ ‘Evidence Requirements Information Sheet’ states in part:[52]

[51] S 34(1)(f) of the NDIS Act.

[52] NSW Department of Communities and Justice, Housing Pathways – Evidence Requirements Information Sheet DH3001a (August 2023).

14. Documents that show your current accommodation is unsuitable, unhealthy or unsafe
Provide all applicable from this list that are relevant:
·Report or letter from a medical specialist, psychiatrist or general practitioner
·Report or letter from a health care worker such as a community nurse, occupational therapist or physiotherapist

…
Evidence to show substandard property conditions
·Property condition report, or
·Advice from local Council stating the property is in a substandard condition, or
·Advice from a tenancy advocacy service or action taken against the landlord in the NSW Civil and Administrative Tribunal (NCAT), or
·Medical Assessment form detailing why the accommodation is substandard, and how this affects a medical condition or disability, or
·Photographs of the property* (must be provided with further evidence)
·Statutory Declaration
·Letter from a support worker or advocate

…
16. Proof of disability or ongoing medical condition
Provide all applicable from this list for each person on your application with a disability or ongoing medical condition:
·Medical Assessment form completed by a relevant health professional detailing the disability or ongoing medical condition and the impact it has on housing need
·Report or letter from a specialist, psychiatrist, doctor, or mental health worker detailing the disability or ongoing medical condition and the impact it has on housing need
·Report from an Occupational Therapist containing specifications of any modifications required
·Independent Living Skills Assessment form completed by a health professional or support provider, if required

…
22. Proof of special housing requirements
Provide all applicable from this list that apply:
·Medical Assessment form completed by a relevant health professional such as a doctor, specialist, occupational therapist or psychiatrist
·Letter or report from a health professional, health care worker (such as a community nurse or mental health worker), community worker or a support agency detailing any special housing requirements such as:
- the need for modifications
…

The Respondent contends that there is no evidence that the Applicant or his mother have obtained permission to make any modifications to the property. The Respondent contends that Ms BDRY can request maintenance or repairs to the property using the 24/7 Maintenance Line set up by DCJ.[53]

[53] NSW Department of Communities and Justice, Housing and homelessness – Tenant Repair Costs Policy (Web Page, accessed 6 September 2023) < cited in Respondent’s SFIC, [37].

Whilst there is no evidence of requests put in in the form and details outlined in the DCJ Tenant Repair Costs Policy and Evidence Requirements Information Sheet, Ms BDRY gave evidence at the hearing that she has argued with Housing[54] continuously about the required home repairs and that Housing says to her that she is with NDIS and that the NDIS takes care of it. Ms BDRY explained that Housing tell her that they will not take care of the property damage caused by the Applicant because of the severity of the damage, which has got worse in the past two years due to the Applicant not having any proper therapy. Ms BDRY told the Tribunal that the Applicant’s behaviour has worsened, and his meltdowns have worsened.[55]

[54] In referring to ‘Housing’, MS BDRY is referring to NSW Housing, as she and her children reside in a free standing five bedroom house provided through NSW Housing.

[55] Transcript of proceedings, 7 June 2023, p 9.

Ms BDRY gave evidence that as well as there being holes in the walls due to the Applicant slamming doors and otherwise damaging walls and damage to internal doors, the fly screens in the family home were all ripped off and that when she spoke to Housing about this she was told they would not replace the screens ‘Because BDRY keeps stripping them’. Ms BDRY gave evidence that when she asked ‘Well, can we put on something harder?’ the response from Housing was ‘If you want to pay out of your own pocket’. Ms BDRY explained that she subsequently paid for different screens because the Applicant has escaped through windows.[56]

[56] Ibid.

Ms BDRY gave evidence that when she raised with Housing the safety issues arising from the Applicant escaping through windows where he had ripped screens off, they told her ‘you have to go with NDIS.’ Ms BDRY pointed out to the Tribunal that an occupational therapist back in 2021 did try to apply with Housing to have repairs carried out properly to make it safe for the Applicant, but that they were told by Housing to go to the NDIS. When she spoke to the NDIS, they said to her, “No, you’re in Housing, Housing has to fix that up for you.”[57]

[57] Ibid, p 10.

Ms BDRY also told the Tribunal that when she spoke to Housing about having the property damage caused by the Applicant repaired she was told “One, two holes isn’t a problem”, but there are holes in walls throughout the house as a result of the Applicant slamming doors.[58]

[58] Ibid, p 17.

The August 2020 report of Ms Nguyen, Occupational Therapist, states:

Please note that Housing NSW will not pay for the damages around the home as they believe it is a Disability issue and that National Disability Insurance Scheme should be supporting and funding it home maintenance/ modifications that can cater to [BDRY]’s behaviour.
…
Home Modification/ maintenance
Home situation is under NSW Housing; however, housing has fixed many holes in the wall, window, and screen due to severe challenging tantrums and behaviour. Housing have advised that [BDRY]’s home modifications are to be funding under NDIS for heavy duty fixtures to minimise breakage. The items that require modification and attention are the following:
·Holes on the back of doors due to [BDRY] severe tantrums and slamming on doors.
·Removal of flyscreen in every room has been removed by [BDRY], he often removes this to jump to escape to the backyard.
·Sliding door flyscreen broke due to [BDRY] tantrums and kicking the door down.[59]
[59] JB, pp 49 and 54.

In examination of Ms BDRY and the Respondent regarding this issue, the following information was provided:

MS BDRY: Even like when the Housing contractors come to fix up like whatever, like the bathroom door they’ve tried to fix the lock twice. BDRY keeps breaking it because BDRY likes to slam doors – or thing, like to slam them really hard. So they’ve changed one door. They won’t change the rest. The bathroom door, because it’s a major must to have a bathroom door, they’ve changed that. They will not change the bedroom doors. They will not put in new bedroom doors. So I’ve actually asked the contractors like, ‘How much would it cost to get a door replaced?’ and stuff like that. They go to me, ‘We’re not allowed to do it,’ because they’re under contract under Housing. So if they work for Housing, they can’t do private work.
Counsel: These Housing contractors who came were organised by the Department of Housing, were they?
Ms BDRY: That’s correct. Yes. They work for the maintenance, and the maintenance – if you’re under contract with the Department of Housing, you can’t do private work. Because your work is – they come first; their focus is first. So when I went to Bunnings – he goes, ‘Just go to Bunnings to look at the doors.’ I went to Bunnings. So five bedroom doors, just the door alone at Bunnings, it’s $50. That’s not including the lock because you got to buy everything separate. So I don’t know how it works. And then they go to me, ‘You’ve got to make sure that you’ve got the right size.’ I go, ‘I don’t know.’ So I’ve not gotten a contractor. I don’t know who to call to find to come in for the walls. I was told yesterday – because when I was asking, I actually asked like people like, you know, one of my neighbours across the road is a builder. He’s a carpenter, or whatever. I asked him and he goes, ‘No, you need a drip rocker. That’s for the wall. And then for the doors, you need like a carpenter,’ or whatever, ‘they’re the ones that build the doors.’ So I have to get quotes on that, but I have never gotten a quote this soon, so, no[60]. (emphasis added)
[60] Transcript of proceedings, 7 June 2023, p 17.

It is apparent to the Tribunal from the evidence that requests have been made to DCJ to repair damage in the family home caused by the Applicant. The Tribunal is satisfied the evidence establishes that some repairs have been carried out and that repairing ‘one or two holes’ and replacing or repairing some internal doors have been deemed acceptable by repairers contracting to DCJ.

The Tribunal accepts the evidence of Ms BDRY that not all requested repairs to walls, insect screens and internal doors damaged by the Applicant have been attended to by DCJ - Housing. The Tribunal accepts Ms BDRY funded the replacement of damaged insect screens with more hardy damage resistant screen materials, but that there is other damage that remains in a state of disrepair which affects the amenity of all living in the family home, including the Applicant.
In the decision of Fear by his mother Vanda Fear and National Disability Insurance Agency[61], a case concerned with the provision of health appliances to a person with a disability outside of the hospital context, the Tribunal decided that the equipment sought was more appropriately funded through the general health system.
[61] Fear by his mother Vanda Fear and National Disability Insurance Agency [2015] AATA 706, cited and discussed in XNTW and National Disability Insurance Agency [2023] AATA 759 (XNTW) .
In Burchell and National Disability Insurance Agency (Burchell)[62], another case concerning health services required by a NDIS participant, the Tribunal found that the support sought would not as a matter of fact be provided by mainstream health services and that it was a requirement for the support to actually be ‘provided’ by someone else for the NDIA to avoid responsibility.
[62] Burchell and National Disability Insurance Agency [2019] AATA 1256, cited and discussed in XNTW.
In XNTW and National Disability Insurance Agency (XNTW)[63] the Tribunal disagreed with the conclusion in Burchell that unless a service is actually provided by another person then a support which otherwise meets the requirements in section 34 must be provided or funded through the NDIS. The Tribunal in XNTW found that there is nothing in the terms of paragraph 34(1)(f) which requires such a conclusion. The Tribunal found that it did not assist the Applicant in that matter, which dealt with whether a requested support should be provided through the ACT Education Directorate rather than be funded through the NDIS, to establish that the requested support was not offered by the ACT Education Directorate, as “The remedy for this apparent misallocation of resources however is not to have the NDIA fund supports which cover the ACT’s failure to provide services which directly address the disadvantage faced by students who struggle to learn as a consequence of their disability”.[64]
[63] XNTW and National Disability Insurance Agency [2023] AATA 759 (14 April 2023).
[64] XNTW and National Disability Insurance Agency [2023] AATA 759 (14 April 2023), [87].
The Tribunal considers the reasoning in XNTW sound and has taken note of the Respondent’s submissions at hearing with respect to XNTW that where another entity, in the current case, DCJ - Housing, is responsible, the NDIS is not responsible.[65]
[65] Transcript of proceedings, 7 June 2023, p 30.
The Tribunal is satisfied that notwithstanding her unsuccessful endeavours to date to get all damage to the family home caused by the Applicant repaired through DCJ - Housing, as the landlord and provider of the public housing in which she, the Applicant and her other children reside, there are provisions in the Residential Tenancies Act and the Tenant Repair Costs Policy of the NSW Department of Communities and Justice whereby Ms BDRY can seek to have the requested repairs in the family home attended to.
As a consequence of these findings, the Tribunal is not satisfied that requested home repairs, that is, the requested support, is most appropriately funded or provided through the National Disability Insurance Scheme, and that it is more appropriately funded or provided through DCJ - Housing. Accordingly, the Tribunal is not satisfied that the requirements of s 34(1)(f) are met with regard to the request for funding to carry out repairs to the family home for damage caused by the Applicant.
As the Tribunal has determined s 34(1)(f) is not met with regard to this requested support, it is not necessary to consider whether the other criteria in s 34(1) are satisfied.
Consideration of the Applicant’s request for consumables funding.
'The Tribunal must determine whether the requested support is both reasonable and necessary, as required by s 34(1) of the NDIS Act.

97. Part 3 of the Support Rules deals with assessing proposed supports and in part states:
Value for money
3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a)whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(c)whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d)for supports that involve the provision of equipment or modifications:
(i)the comparative cost of purchasing or leasing the equipment or modifications; and
(ii)whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;

(e)whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f)whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).

Effective and beneficial and current good practice
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a)published and refereed literature and any consensus of expert opinion;
(b)the lived experience of the participant or their carers; or
(c)anything the Agency has learnt through delivery of the NDIS.

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

Reasonable family, carer and other support
3.4 In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:
(a)for a participant who is a child:
(i)that it is normal for parents to provide substantial care and support for children; and
(ii)whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age; and
(iii)the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and
(iv)whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing;

(b)for other participants:
(i)the extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community; and
(ii)the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:
(A)   the age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and
(B)   the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and
(C)   the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and
(iii)the extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes;

(c)for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.

The Respondent’s SFIC reports that the Applicant requests $7,500 in consumables funding for continence products ($3,908) and unspecified sensory items ($3,592) as set out in the report of Ms Kate Morris, Occupational Therapist[66]. At the hearing Ms BDRY confirmed that along with funding for home repairs, she was seeking to have included in the Applicant’s SOPS funding for required consumables. As became apparent during examination on this issue, Ms BDRY initially pressed the Applicant’s need for funds to be available for both sensory items for use in his therapy and also cleaning products such as wipes and waterproof bedding to use in relation to the ‘mess’ made by the Applicant.
[66] JB, p 294.
In relation to the request for funds for consumables to be used, the Respondent contends that the Occupational Therapy Assessment Report of Ms Morris indicates that the Applicant is “continent both during the day and through the night”[67]. Accordingly, Ms Morris recommends that the Applicant not be funded for “continence products or waterproof products”.[68]
[67] Ibid, p 294.
[68] Ibid.
The Tribunal has reviewed the report of Ms Morris and notes it provides the following information in relation to the Applicant’s Activities of Daily Living:[69]
Toileting – bladder
He is independent with recognising he needs the toilet and is independent with bladder management and going to the toilet.
His mother taught [BDRY] to sit down and urinate otherwise, he makes a mess.
Toileting - bowel
[BDRY] can recognise and communicate that he needs a bowel motion.
His mother reported that he does not wipe his bottom after toileting and does not flush the toilet. [BDRY] often requires his clothing to be readjusted following toileting as his underwear is often left exposed.
[69] Ibid, p 320.
In relation to the requested funding for consumables, Ms Morris first details the amounts requested, in what the Tribunal has taken to be the ‘rough estimate’ put to the Respondent by Ms BDRY, and then provides her comment:
$7,500.00 of funding for consumables to purchase: Bright Sky Comfy Junior Pants 8-15 (quoted at $1,014.00); a waterproof quilt cover (quoted at $405.00); a waterproof fitted sheet (quoted at $491.00); care wipes as needed (quoted at $1,014.00); flushable wipes as needed (quoted at $1,014.00); and sensory items as needed ($3,562.00). I do not support the purchase of any continence products or waterproof products. His mother reported that [BDRY] is continent both during the day and through the night. I recommend an allowance for sensory products to provide him a safe sensory space to practise emotional regulation strategies and engage in appropriate sensory activities.[70] (emphasis in original)
[70] JB, p 294.
In relation to Ms BDRY’s request for funding in the Consumables budget for disposable wipes to assist with cleaning the Applicant after he has had a bowel movement, Ms Nguyen’s report of 13 August 2022 states in a section regarding Self-Care – Toileting:
[BDRY]’s mother reported he requires assistance in toileting, requires reminding to ensure that he completes toileting task. He requires assistance with wiping properly… Since participating in three times per a week, [BDRY] has understood toileting and when prompted he will go toilet. He requires assistance with wiping hygienically and supervision as he often pees on walls and floors and smears poo everywhere on furniture etc.[71]
[71] Ibid, p 51.
The Respondent contends that following the report of Ms Kate Morris, Occupational Therapist, Ms BDRY was invited to revise the request for consumables funding and to specify the sensory items proposed to be purchased during the plan period, however, has declined to specify the amount of consumables funding requested.[72]
[72] Respondent’s SFIC, [31].
At the hearing, Ms BDRY gave evidence that she has not requested funding for diapers, as she has these in sufficient quantity. She told the Tribunal that she did go online to check for the costs of bedsheets, because the Applicant “does still make a mess”[73]. Ms BDRY gave evidence that funds are also requested for consumables such “wipes, cleaning stuff, because BDRY does draw all over the walls…BDRY still wets the bed, and stuff like that”[74]. Ms BDRY explained that the Applicant “doesn’t have a bed of his own, he sleeps in everyone’s bed wherever we can get him to sleep, when we can get him to sleep”[75]. Ms BDRY indicated that she does not how much funding is required for these types of consumables and so, provided a “rough estimate”.[76]
[73] Transcript of proceedings, 7 June 2023, p 9.
[74] Ibid.
[75] Ibid.
[76] Ibid.
The Tribunal is mindful that in the particular circumstances of this matter, the Respondent has sought and taken into account expert opinion[77], being the opinion of Ms Morris, occupational therapist. The Tribunal is satisfied the opinion of Ms Morris should be accorded due weight and notes that she provides a specific recommendation, as referred to above, that she does not support the purchase of any continence products or waterproof products. Whilst the Tribunal acknowledges and has taken into account the lived experience of Ms BDRY[78] the tribunal is not persuaded it should disregard the opinion of Ms Morris with regard to the continence products or waterproof products.
[77] Rule 3.3.
[78] Rule 3.2(b).
Indeed, the Tribunal notes the consumables requested by Ms BDRY appear to be primarily cleaning products such as wipes to clean ‘mess’ made by the Applicant. With regard to this requested support, the tribunal has considered the factors identified in r 3.4 so as to form a view as to whether the requested funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide.
The Tribunal has noted that funds were available for consumables in previous plans, as contended by Ms BDRY. However, these were to assist with the Applicant’s bowel related incontinence and in light of the current evidence, the Tribunal is not persuaded this need is now present. On the basis of its consideration of the evidence and contentions made with regard to this evidence, the Tribunal has formed the view that expenditure on wipes and related cleaning products fall within what is normal for parents to provide and that there is not clear evidence that the need for the cleaning products, because of the Applicant’s care needs, are substantially greater than those of other children of a similar age.
As a consequence of the findings it has made in relation to the request for consumables funding amounting to a rough estimate of $7,500.00, the Tribunal is not satisfied this requested support meets the required criteria in s 34(1)(d), in that the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice, or s 34(1)(e) in that 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. As a consequence, s 34(1) is not met and the requested support for funding for this component of consumables requested by the Applicant is not a reasonable and necessary support.
As to funding for sensory items for use by therapists working with the Applicant, in their SFIC, the Respondent contends that there is no evidence before the Tribunal addressing the specific sensory equipment that the Applicant proposes to purchase, the cost of this equipment (including quotes) or clinical evidence demonstrating that any particular requested items will be effective and beneficial for addressing the Applicant’s sensory regulation needs. In the absence of this evidence, the Tribunal cannot be positively satisfied the request consumables funding will be effective and beneficial or represent value for money as required by ss 34(1)(c) and (d) of the Act. Additionally, the Respondent accepts that 60 hours of occupational therapy and 50 hours of specialist behavioural intervention is reasonable and necessary. In the absence of further evidence addressing how any proposed sensory items are intended to work in conjunction with this therapy, there is insufficient evidence that additional funding for self-regulation goals would not create a duplication of the outcomes provided for by these other supports, delivered under alternative funding through the NDIS, prohibited by r 5.1(c) of the Rules.[79]
[79] Respondent SFIC, [32]
Ms BDRY gave evidence at hearing that she is not able to identify specific consumables required by therapists working with the Applicant who utilise sensory consumables, as she is not a trained professional.[80] In elaborating on this factor at a further point in the hearing, Ms BDRY made the following comment:
So this is the problem we had, just like what [counsel for the Respondent] answered, which was – I was arguing for the past two years, was I couldn’t – when [solicitor for the Respondent] was asking me for direct thing of what consumables I need for my child, what sensory items, he wanted specifics, I told him continuously that I do not know. I’m not a professional. It depends on what the OT recommends and every time – like every plan since, like it’s all in there, like what was there, what was his spend, because he had nappies, he had the whole thing, the foam mats, any sensory guiding equipment, because BDRY now – his hand’s damaged, because he bites his hand directly now, so he’s got scarring all over his hand which Kate Morris suggest are sore and stuff. They don’t know what the price is. We don’t know what’s going to be given or what’s going to be needed. But an OT can’t just come in, and they don’t have equipment to come and work with him.
Each child’s different. So there needs to be funding there. Whatever it is – and at the end of the day if it doesn’t get used, it just goes back in. So if they’re saying that it’ll probably cost for us to do a review, which takes time – it’s not straight away that you’re going to get an answer straight away; reviews take a long time. And NDIS are, like, whatever but it takes time to even just put a plan review in. So you could be waiting – I’ve been waiting for this whole thing, this whole tribunal thing for two plus years because we’ve been going back and forth, back and forth. The reviews take time. I’m not saying it’s going to take a year, but it takes up to about four to six weeks, if not longer cos I’ve had reviews before, and that’s how long it’s taken.
So that’s another four to six weeks where they come in six times during that say four to six times during that break of the review where they don’t have the equipment to work with BDRY. The funding should be there. Whatever doesn’t get used is all on the thing. So whatever they put in, they will purchase. It’ll go through them. I don’t – the plan manager has to pay whatever it is – the receipts off.
And that’s not how it works. It’s not like – I’m not putting it – I don’t want it still funded, because I don’t want the headache again of going through all this. Because this was one major headache for me, this ‘whole thing still funded’ thing. I just continued on and it became my worst nightmare, because for two years my son wasn’t dealt with. So keep it with the plan manager. It’s their responsibility. They pay the wages, they pay the receipts, and they know what they have to do because the NDIA approved them or that what not. So the funding should be there for the OT.[81]
[80] Transcript of proceedings, 7 June 2023, p8.
[81] Transcript of proceedings, 7 June 2023, pp 25-26.

Following a brief adjournment, the Respondent made further oral submissions to the effect that as the new plan, as previous plans did as well, includes $1,000 in Core Supports for the purchase of assistive technologies. These funds are available to be used for things such as sensory items. So there is, in fact, funding already there. If an occupational therapist came in and said straight way, ‘Look, I think we should get X,’ there is funding available. The Respondent also submitted that there is the capacity in the NDIS Act, following recent amendments of the legislation, to do what the NDIA refer to as a ‘light touch review’[82], which allows a variation in a participant’s SOPS, especially in relation to a very specific item like sensory items. It is not a full plan review, such as is available through s 48 of the NDIS Act. It is something that could be done on a quick basis pinpointing one item. If the Occupational Therapist did come back and say, ‘Look, we also need this other equipment,’ that could be progressed quickly without having to get the whole plan reviewed.[83] In summary, the Respondent contended that whilst there can be a plan review under s 48, there’s also capacity under s 47A for variations of plans, which is typically used for minor adjustments to plans, so it could potentially be used for a small change in consumables.[84]
[82] NDIS Act, s 47A.
[83] Transcript of proceedings, 7 June 2023, p 27.
[84] Ibid, p 29.
By way of response, in her closing oral submissions, Ms BDRY submitted that:
It’s just, like I said, the repairs and the consumables that he’s now stated that there is money for assistive technologies that the OT can dip into, and if she needs more then the review can be made. And he’s just explained that they changed rules in regards to if an OT or whatever specialist needs a review put in place straightaway for more funding, it can be done straightaway so it’s not going to take time. So if that’s the case, I’m happy with that. But the repairs is an issue for me.[85]
[85] Transcript of proceedings, 7 June 2032, p 34.
The Tribunal has noted that in her report of Ms Morris recommended an allowance for sensory products to provide the Applicant with a safe sensory space to practise emotional regulation strategies and engage in appropriate sensory activities.[86] The Tribunal has reviewed the current NDIS plan and SOPS approved on 31 May 2023 and is satisfied it does, as submitted by the Respondent, contain $1,000 for the purchase of low-cost assistive technology items in the Core Supports budget.
[86] JB, p 294.
On the basis of this evidence and the oral submissions made at hearing, the Tribunal is satisfied that the Applicant has withdrawn the component of the consumables funding requested that pertain to the purchase of sensory items for use required by therapists working with the Applicant. Accordingly, as this does not remain an issue in dispute, the Tribunal has given no further consideration as to whether consumables funding for sensory products are a reasonable and necessary expense.
DECISION
The Tribunal affirms the Decision under review.

I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for the decision herein of Member D Barker

...................................[SGD].....................................
Associate
Dated: 19 October 2023

Date(s) of hearing: 7 June 2023

Advocate for the Applicant: Ms BDRY, Non-Legal Advocate

Counsel for the Respondent: Mr N Swan

Solicitors for the Respondent: Mr J Pattinson, Mills Oakley

Date(s) of hearing:	7 June 2023
Advocate for the Applicant:	Ms BDRY, Non-Legal Advocate
Counsel for the Respondent:	Mr N Swan
Solicitors for the Respondent:	Mr J Pattinson, Mills Oakley