Brandon Trapezanidis by his Nominee George Trapezanidis and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1674 (4 September 2025)
Applicant/s: Brandon Trapezanidis by his Nominee George Trapezanidis
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2021/9991
Tribunal:Senior Member P French
Place:Sydney
Date:4 September 2025
Decision:(1)Pursuant to s 105 of the Administrative Review Tribunal Act 2014 (Cth) the decision under review made on 2 October 2024 is set aside and remitted to the CEO for reconsideration by 1 October 2025 in accordance with directions that:
(a) the following supports are to be approved for inclusion in the Applicant’s Statement of Participant Supports:
(i)56 days Short-Term Accommodation, such support to be provided subject to the conditions referred to in paragraph 1(a)(iii).
(ii)Specialist Disability Accommodation with 2 bedrooms and an additional room for on-site overnight assitance for 1 occupant:
-building type: house,
-design category: improved liveability.
(iii)Assistance with daily living and social and community participation:
-30 hours per week on weekdays at 1:1 intensity;
-5 hours on Saturdays at 1:1 intensity;
-4 hours on Sundays and public holidays at 1:1 intensity.
such support to be provided subject to the following conditions:
a.Transition to provision of this support by a provider independent of the Applicant’s family before the reassessment date, and
b.Ms Peyton Trapezanidis must not be engaged to provide this support for more than 5 days per week, or for more than 8 hours per day.
(iv)30 hours of psychology support;
(v)26 hours of exercise physiology support,
(b) The support specified in paragraph 1(a)(ii) is to replace the SDA support specified in the Applicant’s existing Statement of Participant Supports,
(c) The support specified in paragraph 1(a)(iii) is to replace Assistance with Social Participation in the Applicant’s existing Statement of Participant Supports,
(d) All other supports in the Applicant’s current Statement of Participant Supports, excepting any one-off assistive technology supports already used, are to be replicated from the date on which the supports specified in paragraph 1(a) are included in the Applicant’s Statement of Participant Supports until the reassessment date,
(e) the date by which the CEO must reassess the Applicant’s plan is to be 12 months after the supports in paragraph 1(a) are included in the Applicant’s Statement of Participant Supports.
(2) Pursuant to s 101(a) of the Administrative Review Tribunal Act 2024 (Cth) the application for review insofar as it concerns the internal review decision dated 25 November 2021, and the CEO’s decision to approve a Statement of Participant Supports dated 5 October 2022, is dismissed on the basis that it is now lacking in substance.
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.........................[SGD]...............................................
Senior Member P French
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – reviewable decision of CEO – decision to approve a Statement of Participant Supports – whether requested supports are reasonable and necessary – whether requested support is ‘Medium-Term Accommodation’ as prescribed where long-term accommodation is not yet secured – not found by operation of Item 1 of Schedule 1 of the NDIS Supports Transitional Rules – whether request for Short-Term Accommodation ought to be approved – where request exceeds number of days ‘usually’ funded in accordance with Operational Guidelines – whether an unlikelihood that requested support will be utilised renders it not reasonable and necessary – support approved – request for Specialist Disability Accommodation – whether Applicant is eligible for SDA building type ‘house’, whether Applicant is eligible for SDA design category ‘robust’ – SDA approved – building type: house; design category: improved liveability -– whether request for disability support worker assistance at 1:1 ratio 30 hours weekdays; 5 hours Saturdays and 4 hours Sundays and Public Holidays ought to be approved – whether support should be approved on the basis it will be provided by a family member on a paid basis – whether Tribunal has power to specify the provider of a support – whether provision of formal support by family members constitutes a risk of harm to a participant and the family member – support approved on a transitional basis subject to conditions – whether request for psychology support should be approved – whether indirect model of provision is value for money and effective and beneficial – found – whether it is duplicative of specialist behaviour management support – not found – support approved - whether request for 38 hours occupational therapy additional to 40 hours already funded should be approved – whether indirect model of service provision is value for money and effective and beneficial – existing funding for occupational therapy found sufficient – additional support not approved – request for approval of exercise physiology support – whether indirect model of provision is value for money and effective and beneficial – found – support approved –whether plan should be reassessed in 3 years – 1 year reassessment date set due to transitional character of overall plan and CEO’s responsibility to maintain oversight of progress – operative decision under review set aside and remitted for reconsideration with directions – application insofar as it concerns the non-operative internal review decision and a later non-operative decision to approve a new Statement of Participant Supports dismissed on the basis that it is no longer of any substance.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 25, 37, 38AA
Administrative Review Tribunal Act 2024 (Cth), s 12, 101, 105
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth), Schedule 16, Item 24
National Disability Insurance Scheme Act 2013 (Cth) s 3, 4, 5, 10,17A, 31, 33, 34, 35, 46, 99, 100, 103, 209
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Act 2024 (Cth); Schedule 1; Item 129
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Transitional Rules 2024 (Cth); Schedules 1 and 2
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth): r 7
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth), rr 3.1, 3.2, 3.3, 5.1
National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth): r, 11, 12, 13, 14, 15, 16, 17, 18Cases
Allen and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1359
Beezley v Repatriation Commission (2015) 150 ALD 111; [2015] FCAFC 165
Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607
Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; 24 ALR 577
DQKZ and National Disability Insurance Agency [2024] AATA 2276
G v Minister for Immigration and Border Protection [2018] FCA 1229
HPSC and National Disability Insurance Agency [2021] AATA 727
Mulligan v National Disability Insurance Agency [2015] FCA 544
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) 2 ALD 634
SAS Trustee Corporation v Miles (2018) 265 CLR 137
Shi v Migration Agent’s Registration Authority (2008) 235 CLR 286
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v WRMF (2020) 378 ALR 449Secondary Materials
National Disability Insurance Agency, Specialist disability accommodation (operational guideline), 7 April 2025
National Disability Insurance Agency, Medium term accommodation (operational guideline), 30 January 2023
National Disability Insurance Agency, Our guideline – Short Term Accommodation or Respite, 24 June 2022
National Disability Insurance Agency, Pricing Arrangements and Price Limits 2025-26, 30 June 2025.
National Disability Insurance Agency, Pricing Arrangements for Specialist Disability Accommodation 2025-26, 30 June 2025
National Disability Insurance Agency, NDIS Specialist Disability Accommodation Design Standard, Edition 1.1, 25 October 2019
National Disability Insurance Agency, Including Specific Types of Supports in Plans Operational Guideline – sustaining informal supports, 10 May 2023
World Health Organisation (2011), International Classification of Functioning, Disability and Health, Geneva
World Health Organisation (2002), Towards a Common Language for Disability, Functioning and Health, ICF, Geneva
Ustun, T B, Kostanjsek N, Chatterji S and Rehm, J, (eds) (2010), Measuring Health and Disability: Manual for WHO Disability Assessment Schedule, World Health OrganisationStatement of Reasons
This is an application concerning Brandon Trapezanidis (the Applicant) made to the Tribunal by his Participant Plan Nominee, father and Guardian, George Trapezanidis, pursuant to s 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act) for independent review of a decision of the delegate of the Chief Executive Officer of the National Disability Insurance Agency (CEO, NDIA, the Agency) made under s 100(6) of the Act on 25 November 2021 which was to affirm an original decision of another delegate of the CEO made on 13 October 2021 to approve a Statement of Participant Supports (SoPS) for the Applicant under s 33(2) of the Act that did not include several supports requested on behalf the Applicant. The Tribunal has jurisdiction under s 12 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) to review this decision because it is designated a reviewable decision by item 4 in the Table to s 99(1) of the NDIS Act.[1] This application was made to the Tribunal on 20 December 2021.
[1] This proceeding commenced before the Administrative Appeals Tribunal (AAT) in accordance with the power conferred by s 25 of the Administrative Appeals Tribunal Act 1975 (Cth). The AAT was abolished and replaced by the Administrative Review Tribunal (ART) with effect from 14 October 2024. By operation of Item 24 in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) any proceeding which was not determined by 14 October 2024 continues in the ART and is to be determined by the application of the provisions of the ART Act.
While this application has been before the Tribunal, pursuant to s 33(2) of the Act, a delegate of the CEO approved new Participant Plan for the Applicant containing a new SoPS by decisions made on 5 October 2022 and 2 October 2024. The latter of these contains a SoPS that has a reassessment date before 25 October 2025. By operation of s 103(2) of the Act, this application is also taken to be an application for review of these subsequent decisions to the internal review decision. However, it is the decision to approve the SoPS dated 2 October 2024 that is the current operative decision for the purposes of this review. No claim for ‘retrospective’ funding of supports during the earlier SoPS periods is made or is maintainable. The application insofar as it concerns the internal review decision, and the decision made on 5 October 2022, are therefore no longer of any substance and the application insofar as it concerns them is dismissed on this basis.
This is a very distressing case.
The Applicant is a person with ‘extreme’ functional impairments which are derivative of autism spectrum disorder (Level 3), intellectual disability, and treatment resistant paranoid schizophrenia. He has a rigid and explosive temperament, experiences frequent episodes emotional and behavioural dysregulation, and has extreme suspicion of anyone outside his immediate family. He can be verbally abusive and physical assaultive of others.
Prior to his transfer to the NDIS, the Applicant and his family were supported by a specialist program operated by the Victorian Department of Health and Human Services. Support provided under that program facilitated the Applicant’s parents and his two siblings moving out of their family home into alternative accommodation, and the family home being reconfigured to provide impairment-related amenities for the Applicant to enable him to undertake physical exercise and obtain sensory stimulation and relief. His family (father, mother and sister) provided support to him within the home on a rostered basis. They were partially paid to do so. Their rent and utilities in their ‘second’ home where also paid, or partially paid, under that arrangement, such that they did not incur double costs of living. The evidence is that the Applicant made significant functional gains while occupying his family home as a single occupant with in-reach support provided by his family. His parents and sister also obtained regular, complete, relief from the onerous demands of providing the Applicant with support.
Upon the Applicant’s transfer to the NDIS, the CEO decided not to approve a continuation of this arrangement beyond the first plan period on the basis that it was inconsistent with policy.
The parties, in effect, blame each other for what happened next.
The Applicant’s parents were unable to afford to maintain their tenancy of the second home without government assistance. While they challenged the CEO’s decision to cease to fund that arrangement, including by instigating this application for independent review, they lived for a time in makeshift arrangements, including out of their car. However, this was unsustainable. As time wore on, they were obliged to move with their two other children (then young adults) back into the family home. That required the dismantling of the amenities that had been designed for the Applicant to undertake physical exercise and obtain sensory stimulation and relief.
The evidence is that the Applicant has experienced a substantial functional decline because of the family’s reversion to this living arrangement. He ‘lives’ most of the time in his bedroom mostly sleeping during the day and coming out at night to obtain food. His ability to regulate his emotion and behaviour has declined. He has become obese. From his bedroom, he exercises control over the whole home environment, limiting what other family members may do. He has sensory intolerance to the sound of a TV or radio. He obtains sensory relief by extended frequent showering in the home’s single bathroom, which includes the home’s only toilet, obstructing access to this facility for other family members. His parents and sister are responsible for providing active assistance and prompting in relation to virtually all aspects of his daily subsistence and self-care. His parents have no opportunity for relief from these demands. They experience poor health and well-being.
The CEO’s decision not to continue to support the arrangement established under the State program did not involve the withdrawal of NDIS Support for the Applicant. Alternative supports were funded but were not fully utilised or utilised at all by the Applicant and his family. It is contended on the Applicant’s behalf that this was because of his inability to accept formal support.
From 2021 plans have been developed for the Applicant to transition to some form of independent living arrangement. From 2 October 2022 the CEO made funding available for Specialist Disability Accommodation (SDA) and Supported Independent Living (SIL). Despite this, there has been no progress towards independent living. At least in substantial part that is because the model of SDA has remained in dispute and the proposed transition pathway has been controversial between the parties. As a result, there has continued to be very limited or no utilisation of the Applicant’s NDIS approved supports, except to the extent that these are indirect, remotely delivered, allied health and support co-ordination supports.
The SDA support approved by the CEO in 2022 was for a house with 3 residents. That model of SDA support was not accepted by the Applicant. It was contended on his behalf that he was unable to live with other people due to his impairment related needs and behaviours. As at the date of the hearing the CEO now accepts that this is the case. She now proposes single occupancy SDA support in a 2-bedroom villa, duplex or townhouse building type and improved liveability category. However, the Applicant continues in his objection to the SDA support on offer, maintaining that he is unable to live in a communal environment, and that he requires the amenity of a ‘sensory’ room.
Since childhood the Applicant has found it difficult to engage appropriately or at all with various professionals, including teachers and allied education staff, doctors and allied health professionals, and disability support workers. This has resulted in what the Applicant’s parents refer to his ‘coercive treatment’; that is, clinical treatment and behaviour management and control strategies imposed on the Applicant over his objection. This has especially been the case in relation to his mental health treatment. Since his late adolescence the Applicant has been admitted to mental health facilities for treatment as an involuntary patient on multiple occasions, and he has been subject to compulsory treatment orders in the community. It is contended that this compulsory treatment has resulted in his entrenched alienation from mental health clinicians, and from formal supports more generally.
The Applicant continues to be prescribed psychoactive medication in tablet form by his General Practitioner for the control of his symptoms of schizophrenia. His self-administration of this medication is supervised by his parents. The Applicant’s General Practitioner ‘sights’ the Applicant at approximately 2-month intervals either in the interior of his parents’ car, or briefly in his rooms. However, the Applicant refuses to provide a blood sample for the monitoring of his medication, and he has not been subject to psychiatric review by a psychiatrist for some years.
The Applicant’s SoPS includes substantial funding for support from a specialist behaviour practitioner including for the development of a behaviour support plan, but this funding has not been utilised. It is said that this is because the Applicant and his parents have had negative experiences of interventions of this kind in the past.
Against this backdrop of the Applicant’s entrenched alienation from, and refusal to accept, assistance from formal supports, the Applicant’s parents and his sister have proposed to provide him with support on a paid basis similarly to the way this occurred under his previous State-funded program. The CEO opposes this model of support on the basis that it is likely to cause the Applicant harm and pose a risk to the family members concerned.
At least as it stood at the hearing, what the Applicant now proposes is a transitional arrangement which involves only his sister being paid to provide him with support in the context of a structured transition to independent living and the transfer of responsibility for providing his support to a provider that is independent of his family. The CEO continued to have reservations about this proposal.
The Applicant has also sought approval for Medium Term Accommodation (MTA) and Short Term Accommodation (STA) during the transition to independent living and formal supports. It is proposed that support during periods in which MTA and STA are being utilised is provided by his sister on a paid basis. The CEO opposed both requests: the first on the basis that the description of the support sought is not MTE that is capable of being approved, and the second on the basis that there is little prospect that this support would be utilised if it was approved.
Additionally, the Applicant has sought approval of funding for psychology, additional occupational therapy, and exercise physiology supports. It is proposed that each of these supports would be provided remotely via telehealth appointments under an indirect, or delegated, model of support, that involves the clinician working with the Applicant’s parents and sister to devise interventions that they will implement directly with him. The CEO had substantial reservations about this approach to service delivery. The request for additional occupation therapy support was predicated on the Occupational Therapist being the ‘architect’ and ‘driver’ of his transition plan, rather than his Support Coordinator, or a specialist behaviour support practitioner.
The Applicant contended that i will take considerable time for appropriate SDA to be secured and for the transition from family provided support to formal supports to be achieved. In this context it was submitted that the Tribunal ought to set a 3-year reassessment date for the plan, or in other words, create 3-year plan. The CEO opposed this request, citing the need to maintain oversight of progress of transition, against a perceived history of lack of progress.
Upon review I have determined, for the reasons set out here, that the following supports are to be approved for inclusion in the Applicant’s SoPS:
-56 days STA, which may be supported by the Applicant’s sister on a paid basis, subject to the conditions specified following,
-single occupancy SDA with 2 bedrooms, house building type, and improved liveability design category,
-disability support worker assistance 30 hours per week weekdays, 5 hours on Saturdays and 4 hours on Sundays at 1:1 intensity, which may be provided on a paid basis by the Applicant’s sister, subject to the conditions that she provide this support for no more than 5 days per week, and 8 hours a day, and that there is a full transition to this support being provided by an independent provider before the plan reassessment date,
-30 hours of psychology support,
-26 hours of exercise physiology support.
I have determined that the reassessment date for the Applicant’s plan should be 12 months from the date these supports are included in his plan to enable the CEO to maintain oversight of progress in the Applicant’s transition to independent living.
The support described as MTA cannot be approved for inclusion in the Applicant’s SoPS because it is not MTA or a NDIS Support. I have also decided not to approve the Applicant’s request for an additional 38 hours’ occupational therapy support. I am satisfied that the existing funding of 40 hours’ support is sufficient to meet the Applicant’s needs in relation to that support, and that the Applicant’s transition plan development and implementation is properly the responsibility of his Support Coordinator and a specialist behaviour support practitioner.
Subject to any Appeal, my decision in this review quells the controversies that have prevented progress being made towards the Applicant’s independent living and acceptance of formal supports. There can be no doubt that substantial and difficult work now lies ahead.
While NDIS support is an essential component of the Applicant’s support framework it is not a panacea, and in this case it is unlikely to be successful on a stand-alone basis. In this respect, I view it as essential to the Applicant’s successful transition to independent living that there is re-engagement with mental health clinicians. While I understand that the Applicant’s condition is treatment resistant, the evidence is that he is also receiving sub-optimal mental health treatment in a context of the exacerbation of his paranoid symptoms. It is difficult to see how there can be a successful transfer to formal supports unless he obtains better control of those symptoms. It is also simply unacceptable that a person who has such a serious mental health condition involving the daily administration of psychoactive medication is not subject to regular clinical review by a psychiatrist. It is an understatement to say that this situation is not safe.
This case has been before the Tribunal for more than 4.5 years. It is one of the oldest cases in the NDIS Jurisdictional Area. The length of time it has taken the Tribunal to finalise this review is not acceptable. While there are various reasons for the delay, the Tribunal should not have allowed the case to drift as it did. Whatever were the rights and wrongs that led to the situation, the Applicant and his family have been living in extremis for the whole of this period. The emotional impact of this delay was manifest in the evidence of the Applicant’s parents. The ART’s case management procedures are now designed to prevent any recurrence of what has occurred in this case.
The Applicant[2]
[2] This summary is compiled from the Carer Impact Statement of Mr and Ms Trapezanidis (Hearing Tender Bundle Tabs A23, A35), and the reports of Dr Birtles, General Practitioner (Hearing Tender Bundle, Tab A18), Dr Bounds, Clinical Psychologist, (Hearing Tender Bundle, A25, A32), Ms Tunnicliffe, Specialist Support Coordinator (Heating Tender Bundle Tab A20) and Ms Lorimer, Occupational Therapist (Hearing Tender Bundle, Tab A21) and their oral evidence given at the hearing.
The Applicant is 33 years of age. He is one of 3 siblings. His younger (adult) brother also has significant neurological impairment (Autism) and an eating disorder. Both the Applicant and his brother live at home with their parents. A third adult sibling, Peyton, now lives independently from the rest of the family but remains in close weekly/daily contact.
At age 11 the Applicant was diagnosed with Level 3 autism spectrum disorder (ASD), which is ASD in its most severe form, and mild intellectual impairment. At age 18 he was also diagnosed with treatment resistant paranoid schizophrenia. These diagnoses are not controversial in this review.
The Applicant experienced severe emotional and behavioural dysregulation from early childhood. He commenced a mainstream primary school, but this enrolment was attended with serious difficulties. From age 11 he attended a special school, but that enrolment was also unsuccessful. By age 15 he was excluded from school altogether.
During his childhood and adolescence, the Applicant consulted a succession of paediatricians, psychologists and child psychiatrists and acquired a number of additional diagnoses including severe conduct disorder, depressive disorder, anxiety disorder and attention deficit hyperactivity disorder. He was treated with various psychoactive medications without any significant effect.
In 2007, the Applicant was first admitted on an involuntary basis to a Mental Health Facility for treatment. Over the next 10 years he was involuntary admitted to Mental Health Facilities on multiple occasions. Following one of several such admissions in 2017, upon his discharge, the Victorian Mental Health Tribunal made a Community Treatment Order requiring him to accept compulsory mental health treatment in the community. That order was made against a backdrop of non- or poor compliance with prescribed psychiatric medication and escalating emotional and behavioural dysregulation.
The Applicant’s attempted compulsory treatment in acute mental health facilities and in the community was only partially successful. He developed an aversion to hospital admissions, and an acute distrust of mental health professionals generally. His compulsory community treatment ended because he refused to engage with mental health professionals involved in his community treatment.
The Applicant has a diagnosis of treatment resistant schizophrenia, but it appears to be accepted that he is treated sub optimally for this condition due to his refusal to engage with clinical medical health services.
The Applicant continues to accept psychiatric medication in tablet form prescribed by his General Practitioner, Dr M Birtles, which he self-administers prompted and supervised by his parents and sister. He attends on Dr Birtles approximately every two months usually from his parents’ car in a car park outside Dr Birtles’ rooms in the company of his father, although sometimes agrees to attend inside. The evidence of the Applicant’s parents is that he is only willing to accept this psychiatric medication supervised by Dr M B to avoid further involuntary admission to a Mental Health Facility.
The evidence of Dr Birtles was to the effect that the Applicant’s current medication was prescribed by a Psychiatrist, and that he (Dr M B) has a general liaison arrangement with mental health services, but the Applicant is not under the direct management of a Psychiatrist in relation to his mental health conditions, and he has not participated in a psychiatric review with a psychiatrist for some time. He also refuses to provide blood samples for the monitoring of psychiatric medication. Dr M B is seriously concerned about this but has persisted with the Applicant’s current psychiatric treatment regime because it appears to benefit him in the control of his psychiatric symptoms and because no obvious contra-indications are evident in his overall presentation.
Dr Birtles describes the Applicant as the “most unwell” and “most difficult” patient he has ever treated in an outpatient setting.
After his exclusion from school at age 15, the Applicant was supported by a disability support provider with short-term accommodation. However, the support provider experienced difficulties in providing him with support due to his emotional and behavioural dysregulation, and his acute distrust of support workers and extreme discomfort in being in the company of others. There were episodes of incidental and intentional violence, verbal abuse, and spitting on support workers. That support became limited to one-day per week and was later withdrawn because its provision was assessed as an occupational health and safety risk.
The Applicant’s parents were thus left in the position where he was unable to attend school and they had no other support. His care and supervision fell entirely to them in a context of severe and deteriorating emotional and behavioural dysregulation, trust in his environment and other people, and his related extreme social withdrawal.
The physical and emotional demands arising from his care exacted a significant toll on Mr and Ms Trapezanidis’ own well-being, noting that they had the care of two other children, including one who also has significant impairment related need. In their written statements of carer impact, and in their oral evidence, they spoke of the constant stress, anxiety, sadness and sacrifice that has characterised their lives over two decades. This evidence was compelling and moving.
Between approximately 2016 and 2022 in the context of a crisis in his care, being a risk assessment conducted or commissioned by the Victorian Government Department of Health and Human Services, it was determined that the Applicant and his family would be provided with an Individual Support Plan (ISP) by that Agency that would reduce the family’s exposure to violence and constant care demands by relocating them from the family home to another nearby property secured on the private rental market. During this time, the family home was configured for the Applicant’s use, which included converting a bedroom to a sensory room (or pod) for the Applicant. The Applicant’s parents supported him on a rostered basis staying in a bedroom overnight and were paid (or partially paid) to do so out of the ISP funding. The cost of rent and utilities at the second home were also paid by that program such that they did not incur double living expenses. It is reported that during this period the Applicant was able to achieve a greater degree of control over his symptoms, make functional gains. His parents report achieving some relief from the demands of his care and support.
The Applicant became a participant in the NDIS on 10 July 2017. The mechanism by which he did is not in evidence. On the evidence before me it appears his first NDIS Plan did not commence until 9 June 2020. Although the details are not entirely clear, it is sufficient for present purposes to note that the ISP arrangement was continued immediately post transition to the NDIS but was then dismantled on the basis that such an arrangement was considered inconsistent with NDIS policy.
For a time following the withdrawal of funding for alternative accommodation, the Applicant’s parents attempted to maintain the ISP arrangement while they sought review of this decision, living out of their car and in other temporary arrangements, but due to the elapse of time without resolution, they ultimately were obliged to move back into their family home. This required its deconfiguration as a modified environment for the Applicant.
The evidence is that the cessation of this arrangement has had a severe negative impact on the Applicant and his parents. The Applicant now spends most of his time in his room without interacting with anyone, sleeping during the day, and coming out late at night to make/take food. His obtains no exercise and is obese. His parents have continuous responsibility for his subsistence and self-care. They and the Applicant’s siblings are exposed to the Applicant’s frequent emotional and behavioural dysregulation and to his attempts to control them in their home environment by limiting what they can do. While some services are made available to the Applicant indirectly via his parents, he will not directly interact with anyone else, other than Dr Birtles, who he sees only on the basis outlined above.
The decision under review
The Applicant challenges the decision under review on the basis that the supports approved for inclusion in his SoPS are inadequate to his needs. As it originally presented, the decision under review represented a 26.7% reduction in funding for his supports as compared with the previous plan period.
As noted above, while this Application has been before the Tribunal a new Participant Plan with a new SoPS was approved on 2 October 2022. That SoPS included approval for SDA and Supported Independent Living (SIL). However, there remains controversy between the parties in relation to these supports.
As at the date of the hearing the Applicant seeks approval of the following support, either additionally to that already approved, or in substitution of a disputed approved support:
a.Specialist Disability Accommodation (SDA): Building Type – House, 1 resident; Design category – Robust, with breakout room,
b.Occupational Therapy, 78 hours per year,
c.Psychology, 30 hours per year,
d.Exercise physiology, 26 hours per year,
e.One-to-one support worker assistance (6 hours each weekday, 5 hours each Saturday and 4 hours each Sunday and public holiday,
f.Medium-term accommodation, 180 days per year, and
g.Short-term accommodation (respite care), 56 days per year.
Additionally, the Applicant requests the Tribunal to set a reassessment date for his Plan which is 3 years from the date of its decision.
The CEO’s position at the commencement of the hearing was to the effect that her analysis of the evidence at that time led to the conclusion that the following should be considered reasonable and necessary in relation to these requests:
a.SDA: single occupancy apartment, design category of Improved Liveability, with two bedrooms, plus a room for an overnight inactive support,
b.SIL funding: SIL funding for 1:1 formal support 24/7, including 8 hours of overnight inactive support. She did not consider that the evidence supported funding for ongoing informal supports to be paid to family members, although she accepted that a period of paid informal support may be necessary as the Applicant transitions from his current informal care arrangements to formal supports,
c.Occupational therapy: 50 hours annually (inclusive of reports), delivered directly to the Applicant, not his family, albeit allowing some overlap during any transition,
d.Psychology: 28 hours annually (inclusive of reports), delivered directly to the Applicant, not his family, albeit allowing some overlap during any transition,
e.Exercise physiology: 26 hours annually (inclusive of reports), delivered directly to the Applicant, not his family, albeit allowing some overlap during any transition,
f.Medium-term Accommodation: not supported,
g.Short-term Accommodation: not supported.
Additionally, the CEO submitted that the appropriate reassessment date for the SoPS is 1 year from the date of the Tribunal’s decision, not 3 years as requested by the Applicant.
The Applicant’s current participant plan
The Applicant’s current Participant Plan incorporates the following participant goals (the Applicant’s Statement of Goals and Aspirations):[3]
[3] Hearing Tender Bundle, pages 877 - 889.
Short-term goal
For my family to receive supports to enable them to continue to care for me.
Short-term goal
To support and improve Brandon’s physical and mental health, diet and wellbeing fitness.
Medium or long-term goal
For Brandon and our family to be supported in care giving relationship
Medium or long-term goal
Support to reduce stress and anxiety, mood regulation and manage anger frustration (sic)
Medium or long-term goal
Supports to help me have a purpose in life. And an opportunity to gain creative employment.
Medium or long-term goal
Support to find suitable long term safe housing, Brandon wants to live independently and alone.
Medium or long-term goal
To increase my social participation and to enjoy music.
The SoPS incorporated into the Applicant’s current Plan has a total budget of $499,035.23 for funded supports, for the period 2 October 2024 to 2 October 2025, which is divided into 3 categories. In the “Core Supports” category, total funding of $454,017.23 is available for Supported Independent Living ($329,761.31)[4], Assistance with Social Participation ($122,561.92)[5] and Transport ($1,784.00). In the “Capacity Building Supports” category total funding of $44,928.00 is available. This comprises $1,485.84 for the services of a registered plan manager, $13,579.302 for capacity building for Improved Daily Living, being for allied health professionals or therapists (40hours per year for ‘other professional’, 20hours per year for a dietician and 10 hours per year for a speech pathologist), $14,494.35 for capacity building for Improved Relationships, being 45hours of specialist behaviour intervention support and 20hours of behaviour management plan and training in behaviour management strategies per year, and $15,368.60 for 26 hours Specialist Support Coordination (Level 3), and 104 hours of Support Coordination (Level 2). These are “stated supports”, meaning that funding must be used for these purposes. In the “Capital Supports” category total funding of $39,960.00 is available per annum (subject to quotation) for Specialist Disability Accommodation.[6]
[4] This is described In Annexure A of the CEO’s Statement of Facts, Issues and Contentions dated 15 November 2024 as: “This is for Brandon’s day to day needs living with 2 other people. This will help him build his skills to live as independently as possible. This includes $11,758.82 for irregular SIL supports. This is for times he needs support outside his usual week, for instance if Brandon needs to stay home when he is sick.
[5] This allows for 1144 hours of weekday daytime support per year; 208 standard Saturday support per year and 208 standard Sunday support per year: see Annexure A Ibid.
[6] This is described as follows: “I am eligible for SDA. While I live at my current address, my design category is Improved Liveability, building type is House, 3 residents, location is [suburbs]. If I cant to move address, I am still eligible for SDA but I will need to contact the NDIA for the next steps to assess my SDA amount”: Hearing Tender Bundle, page 888.
Annexure A of the CEO’s SFIC contains three graphs which depict funding utilisation against SoPS budget for three periods which make up the total period13 October 2021 to 2 October 2025. For present purposes it is sufficient to note that each of these graphs depicts substantial overall underspending against budget.
The Tribunal’s role
The Tribunal’s role in conducting this review has been to reach its own conclusion as to whether the delegate’s decision to refuse to approve the Applicant’s requested supports in his SoPS is the correct or preferable decision.[7] That has involved the independent re-assessment of the evidence that was before the delegate when they made their decision as well as the assessment of the additional documentary and witness evidence that was before the Tribunal at the time of the hearing.[8]
[7] Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; 24 ALR 577 (Drake) at 589
[8] Shi v Migration Agent’s Registration Authority (2008) 235 CLR 286 at [45] – [46]
Section 34(1) of the NDIS Act provides, relevantly, that for the purposes of specifying the reasonable and necessary supports that will be funded in a SoPS, the CEO must be “satisfied” of each of the matters set out in that section in relation to the funding of each such support. In this independent review, the Tribunal must also be so satisfied. This is a state of positive satisfaction or relative certainty which must be attained in relation to each criterion specifically.[9] Therefore, while neither the Applicant nor the Agency bear any formal onus of proof, the Applicant does bear the practical onus of placing before the Tribunal, or pointing to material before the Tribunal, that can persuade it that each of the supports in dispute is reasonable and necessary.[10]
[9] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [60]; National Disability Insurance Agency v WRMF (2020) 378 ALR 449 at 491 [201]
[10] Beezley v Repatriation Commission [2015] FCAFC 165 (2015); 150 ALD 11 at [68]; HPSC and National Disability Insurance Agency [2021] AATA 727 at [85]
Evidence and hearing
The following documentary material is before me:
i.The documents filed by the CEO in accordance with the obligations imposed by s 37 and s 38AA of the AAT Act (T-Documents),
ii.Hearing Tender Bundle prepared by the CEO in consultation with the Applicant, filed on 15 November 2024. I note that this included:
a.The Applicant’s Statement of Facts, Issues and Contentions dated 6 November 2024
b.A Statement made by Peyton Trapezanidis, the Applicant’s sister, dated 15 September 2023,
c.A Carer Impact Statement made by George Trapezanidis, undated,
d.A Joint Carer Impact Statement made by George and Lisa (the Applicant’s mother) Trapezanidis, dated 6 November 2024,
iii.CEO’s Statement of Facts, Issues and Contentions (SFIC) filed 15 November 2024.
The principal hearing was conducted on 18, 19, and 21 November 2024 and resumed on 19 and 20 December 2024. It was then adjourned to 31 January 2025 to provide the parties with the opportunity to agree terms in partial settlement of the dispute. Unfortunately, in the event, that did not prove possible.
The Applicant’s parents, George and Lisa Trapezanidis, and his sister Peyton Trapezanidis each gave oral evidence under affirmation. Additionally, Dr Jody Tunnicliffe (the Applicant’s Specialist Support Coordinator), Dr Janine Bounds (the Applicant’s Psychologist), Ms Liana Burrows (the Applicant’s Exercise Physiologist), Dr Matthew Birtles (the Applicant’s General Practitioner), Mr Greg Barry (Consultant, SDA Services), and Ms Caitlin Lorimer (the Applicant’s Occupational Therapist), were called as witnesses in the Applicant’s case and each gave evidence under affirmation.
The CEO called as a witness, an independent expert she had engaged, Mr Tim Angel, Occupational Therapist, who gave oral evidence under affirmation.
Applicable law
The NDIS Act is founded upon an explicit values base which is found in its objects (s 3), general principles (s 4), general principles guiding actions (s 5), and with respect to participants and their plans, in more specific principles contained in ss 17A and 31. It is unnecessary for present purposes to set out these value statements in detail.
In giving effect to the objects of the Act, regard must be had to the need to ensure the financial sustainability of the NDIS: s 3(3)(b). It is also a general principle that, relevantly, the CEO and any other person performing functions or exercising powers under the NDIS Act is to have regard to the need to ensure the financial sustainability of the NDIS: s 4(17).
Section 33 of the NDIS Act sets out the matters that must be included in a NDIS Participant Plan.
Pursuant to s 33(1), the Plan must include the Participant’s Statement of Goals and Aspirations.
Pursuant to s 33(2), the Plan must include a SoPS, prepared with the participant and approved by the CEO that specifies, relevantly to this case, (b) the reasonable and necessary supports (if any) that will be funded under the NDIS, and (c) the date by which or the circumstances in which, the Agency must reassess the plan.
Section 34 of the NDIS Act determines what is a “reasonable and necessary support” for the purposes of s 33(2):
34 Reasonable and necessary supports
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support.
(aa)the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see s 24) or the early intervention requirements (see section 25);
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is an NDIS support for the participant.
Note:For the purposes of paragraph (aa):
(a)the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b)a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
(2)The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).
Sections 34(2), 35 and 209(2A) of the NDIS Act prescribe rule making powers in connection, relevantly, with the funding or provision of reasonable and necessary supports. Several Rules made pursuant to these rule-making powers are potentially applicable in the circumstances of this case.
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Supports for Participants Rules) inform the interpretation and application of the s 34(1) considerations. In this respect the following of these Rules are relevant in this review:
Value for money
3.1In 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…;
…
(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 …;
Effective and beneficial and current good practice
3.2In 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.
3.3In 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
3.4In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers and informal networks and the community to provide, the CEO is to consider the following matters:
…
(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 …; 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.
…
General criteria for supports
5.1 A support will not be provided or funded under the NDIS if:
(a) it is likely to cause harm to the participant or pose a risk to others, or
…
(c)it duplicates other supports delivered under alternative funding through the NDIS; …
Additionally, the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Rules 2024 (Cth) (the NDIS Supports Transitional Rules) and the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth) (the Miscellaneous Provisions Rules) are relevant in determining the paragraph 34(1)(f) consideration.
The National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 Cth) (SDA Rules) govern a participant’s eligibility for SDA and the circumstances in which specific categories of SDA will be approved.
The “eligibility rules” are found in Rules 11 to 14 of the SDA Rules. They provide:
11 Eligibility to receive support for specialist disability accommodation
A participant is eligible to receive support for specialist disability accommodation under the National Disability Insurance Scheme if the CEO is satisfied that:
(a) the participant:
(i)has extreme functional impairment (see section 12); or
(ii) has very high support needs (see section 13); and
(b)the participant meets the SDA needs requirement (see section 14).
12 When a participant has an extreme functional impairment
(1) A participant has an extreme functional impairment if:
(a)the impairment results in extremely reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i)mobility;
(ii)self-care;
(iii)self-management; and
(b)the participant has a very high need for person-to-person supports in undertaking the activity even with assistive technology, equipment or home modifications.
(2)For the purposes of assessing whether a participant has an extreme functional impairment, the CEO may have regard to:
(a)any assessment or examination conducted in relation to the participant including any assessment or examination requested by the CEO under paragraph 36(2)(b) or 50(2)(b) of the Act; and
(b)the daily support requirements of the participant; and
(c)any assessment tool specified by the CEO for the purposes of this paragraph; and
(d) any other matters that the CEO considers appropriate.
13 When a participant has very high support needs
(1) A participant has very high support needs if:
(a)the participant has lived in specialist disability accommodation for extended periods and living in that accommodation has impacted on the capacity of the participant to transition to alternative living arrangements and support: or
(b)the participant has a very high need for person-to-person supports, either immediately available or constant, for a significant part of the day and either:
(i)there are limitations in the availability, capacity or capability of the participant’s informal support network or risks to its sustainability; or
(ii)the participant is at risk or poses a risk to others, and that risk could be mitigated by the provision of specialist disability accommodation, having regard to the participant’s response to risk and the interaction of the participant with the environment.
(2)For the purposes of assessing whether a participant has very high support needs, the CEO may have regard to:
(a)any assessment or examination conducted in relation to the participant, including any assessment or examination requested by the CEO under paragraph 36(2)(b) or 50(2)(b) of the Act; and
(b)the daily support requirements of the participant; and
(c)any assessment tool specified by the CEO for the purposes of this paragraph; and
(d)any other matters that the CEO considers appropriate.
14 When a participant meets the SDA needs requirement
(1)A participant meets the SDA needs requirement if, when compared to other supports alone, combined specialist disability accommodation and other supports would:
(a)better assist the participant to pursue the goals, objectives and aspirations set out in the participant’s statement of goals and aspirations; and
(b)be more effective and beneficial, where possible, in:
(i)mitigating or alleviating the impact of the participant’s impairment upon the participant’s functional capacity; and
(ii)preventing the deterioration of the participant’s functional capacity; and
(iii)improving the participant’s functional capacity; and
(vi)maintaining or promoting the participant’s ability to build capacity, including in the medium or long term; and
(iv)maintaining or promoting the participant’s opportunities to develop skills; and
(c)if the participant has very high supports needs – be more effective and beneficial, where possible, in:
(i)reducing the participant’s future needs for supports which might be required due to inappropriate accommodation; and
(ii)assisting the participant to pursue goals related to life opportunities and life transitions; and
(d)if the participant has an extreme functional impairment – be more effective in providing the participant with stability and continuity of support; and
(e) represent better value for money.
(2)For the purposes of paragraph (1)(e), regard must be had to the following matters if the participant has very high support needs:
(a)whether combined specialist accommodation support and other supports would be likely to substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(b)the cost of providing the participant with supports needed to live in accommodation other than specialist disability accommodation, taking into account:
(i)whether those supports may be shared with other participants; and
(ii)limitations of the participant’s informal support network.
The Rules related to the specific category of SDA that will be approved for an eligible participant are found in Rules 15 to 19 of the SDA Rules. For present purposes it is sufficient to identify those Rules by reference to Rule 15, which provides:
15 Matters to be determined by CEO in respect of each eligible participant
(1)The CEO must determine the following matters for an eligible participant:
(a)the SDA building type that is appropriate to support the eligible participant (see section 16);
(b)the SDA design category that is appropriate to support the eligible participant (see section 17);
(c)the area in which the specialist disability accommodation is to be located (see section 18):
(d)whether the specialist disability accommodation is to be provided as an in-kind support.
Note:The CEO may determine more than one SDA building type, SDA design category or location in relation to an eligible participant. The SDA building type, SDA design category and location must be specified in the participant’s plan; see section 19.
Operational policy
The CEO has issued various Operational Guidelines on a variety of topics relevant to the supports in dispute in this case to guide the Agency’s decision-making. I will refer to these Guidelines, where relevant, following, in my consideration of the supports in dispute.
Unlike the NDIS Act and Rules these are policy documents that are not binding upon the Tribunal. Nevertheless, it is long-established principle that the Tribunal should apply government policy relevant to an issue before it for consideration unless there is good reason not to do so, such as an inconsistency with the Act or a Rule.[11]
[11] Re Drake and Minister for Immigration and Ethnic Affairs (no. 2) (1979) 2 ALD 634
Consideration
Having regard to the current state of the law, the questions that must be asked in this review, and the sequence in which they must be asked and answered is as follows:
(a)Are the supports that are in dispute NDIS Supports as defined?
If the answer to this question is “no” with respect to any of the supports in dispute, that support can no longer be considered for approval in the Applicant’s SoPS because it cannot meet the requirement of s 34(1)(f).
If the answer to (a) is “yes” with respect to any of the supports in dispute, then that support can be considered for approval in the Applicant’s SoPS if it is a support that is necessary to address needs of the Applicant that arise from an impairment in relation to which she meets the disability requirement. Therefore:
(b)What are the Applicant’s permanent impairments that result in substantially reduced functional capacity to undertake any of the activities of communication, social interaction, learning, mobility, self-care and self-management, and which affect his capacity for social or economic participation?
(c)Do any of the supports in dispute meet the needs of the Applicant arising from an impairment in relation to which he meets these disability requirements?
If any of the supports in dispute do not meet the needs of the Applicant arising from an impairment in relation to which he meets the disability requirements then they cannot be considered for inclusion in his SoPS because they cannot meet the requirements of s 34(1)(aa).
(d)If the answer to (c) is “yes” then ask whether the support in dispute meets the requirements of s 34(1)(a), (b), (c), (d) and (e) and Rule 7 of the Miscellaneous Provisions Rules.
Specifically with respect to SDA support, although the general provisions of s 34(1) apply in the consideration of this support, as will be apparent from what is set out above, the SDA Rules require more detailed consideration of several matters including some that are at least partially co-extensive with the s 34(1) considerations. I have explained the structure of analysis required in the consideration of SDA support in Allen,[12] and I adopt what I have said there for present purposes.[13]
[12] Allen and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1359
[13] Ibid at [29]
Are the supports in dispute NDIS Supports?
Relevantly to this case, Schedule 1 of the Transitional NDIS Supports Rules prescribes those supports that are NDIS Supports for the purposes of ss 10 and 34(1)(f) of the NDIS Act. With respect to the supports in dispute:
-Item 1 prescribes a “Accommodation assistance or tenancy assistance” category, which is defined, relevantly, to include “[s]upports that build capacity, guide, prompt, or assist a participant to do activities for finding or keeping appropriate accommodation, [which] includes the following: … “(b) medium term accommodation where a participant cannot move into long term accommodation due to that accommodation or other supports not being ready and current accommodation is not suitable”,
-Item 5 prescribes a “Assistance with daily life tasks in a group or shared living arrangement” category which is defined relevantly to include “[supports that provide assistance with or supervision of daily living tasks to participants in a shared living environment [which] includes the following (a) supports provided on a temporary or ongoing basis; (b) supports for short-term accommodation and respite; …”,
-Item 15 prescribes a “Development of daily care and life skills” category which is defined to include “[s]upports that provide training and development activities for participants or carers to increase a participant’s ability to live as independently as possible (including as part of psychosocial recovery supports) [which] includes increasing the participant’s ability to undertake the following activities: (a) shopping; (b) meal preparation; (c) managing finances; (d) managing a participant’s own personal care; (e) travel and use public transport; (f) engage in social activities; (g) improve relationship and social skills,
-Item 18 prescribes a “Exercise physiology and personal well-being activities” category which is defined to be “supports that maintain or increase physical mobility or well-being through personal training or exercise physiology to address the functional impact of the participant’s disability”, which includes “(a) accessing services from an appropriately qualified professional”, “(b) assessment and development of a personalised exercise program which aims to increase or maintain a participant’s functional capacity”, and “(c) maintenance of muscle strength, range of motion, balance and mobility”,
-Item 27 prescribes a “Participation in community, social and civic activities” category which is defined to be “[s]upports that assist a participant to take part in community, social and cultural and civic activities [which] includes the following: (a) supporting participants during relevant activities; (b) working with participants to develop their ability to partake in these activities,
-Item 29 prescribes a “Specialist disability accommodation” category, which is defined to be “[t]he provision of specialist disability accommodation which is accommodation for a participant who requires specialist housing solutions, including to assist with the delivery of supports that cater for the person’s extreme functional impairment or very high support needs”,
-Item 34 prescribes a “Therapeutic supports” category which is defined to be “supports that provide evidence-based therapy to help participants improve or maintain their functional capacity in areas such as language and communication, personal care, mobility and movement, interpersonal interactions, functioning (including psychosocial functioning) and community living”. This includes “an assessment by allied health professionals for support planning and review as required”.
I am satisfied having regard to these prescriptions that each of the supports in dispute, as identified by the Applicant, are NDIS Supports for the purposes of s 34(1)(f) of the Act. The request for MTE falls within the scope of Item 1, the request for STE falls within the scope of Item 5, the request for exercise physiology falls within the scope of Item 18, the request for ‘one to one support worker assistance falls within the scope of Items 15 and 27, the request for support for SDA falls within the scope of Item 29, and the requests for occupational therapy and psychology fall within the scope of Item 34 of Schedule 1 of the NDIS Supports Transitional Rules.
However, with respect to the Applicant’s MTA, it is necessary to consider further whether the support described is capable of being MTA. That is because merely identifying it as such does not make it so. I turn to that consider issue in my further discussion of that requested support below.
I also note for completeness that at the time the CEO filed her SFIC there was a controversy between the parties as to whether the requested psychology support was a NDIS Support because the CEO apprehended that this support was intended for the Applicant’s parents rather than for the Applicant himself.[14] However, in the course of hearing evidence from the Applicant’s psychologist, Dr J B, I understood counsel for the CEO to accept that the Applicant is the intended beneficiary of this support, not his parents, and that this objection to psychology support fell away.
[14] CEO’s SFIC, at [87]
With respect to the Rule 7(3) of the Miscellaneous Provisions Rules I am satisfied on a putative basis that these supports are most appropriately funded through the NDIS. They are not available to the Applicant through any general system of service delivery or support services provided by any other entity, including as part of a universal service obligation, or in accordance with reasonable adjustments required under a law dealing with discrimination based on disability.
What are the Applicant’s impairments?
There is no issue between the parties that the Applicant’s relevant diagnosed health conditions for the purpose of this stage of analysis are Level 3 ASD, mild intellectual disability, and treatment resistant schizophrenia.
The impairments that are derivative of these conditions for the purposes of paragraph 34(1)(aa) are (using the International Classification of Functioning, Disability and Health[15] to identify these impairments with precision[16]):
a.Impairments of global mental functions,[17] being impaired intellectual functions,[18] global psychosocial functions,[19] temperament and personality functions (specifically, psychic stability),[20] and energy and drive functions (specifically, impulse control),[21] and
b.Impairments of specific mental functions,[22] being impaired emotional functions (specifically, appropriateness of emotion and regulation of emotion),[23] thought functions (specifically, form of thought, content of thought and control of thought),[24] and higher-level cognitive functions (specifically cognitive flexibility and insight).[25]
[15] World Health Organisation (2011), International Classification of Functioning Disability and Health (ICF), Geneva; in DQKZ and National Disability Insurance Agency [2025] AATA 2276 I have explained why the ICF may be used as an aid to interpretation of terms and concepts used in the implementation of the ICF. I adopt for present purposes what I said there: at [144]ff
[16] In Mulligan v National Disability Insurance Agency [2015] FCA 544 at [55] the Court observed that the legislative scheme contemplated that a person’s impairments will be identified with a high degree of precision.
[17] ICF, Chapter 1
[18] ICF, Chapter 1, b117
[19] ICF, Chapter 1, b122
[20] ICF, Chapter 1, b126, b1263
[21] ICF, Chapter 1, b130, b1304
[22] ICF, Chapter 1
[23] ICF, Chapter 1, b152, b1529, b1521, b1522
[24] ICF, Chapter 1, b160, b1601, b1602, b1603
[25] ICF, Chapter 1, b1643, b1644
These are intellectual and neurological impairments, and impairments to which a psychosocial disability are attributable, for the purposes of s 24(1) and paragraph 34(1)(aa).
I do not understand it to be in issue that these impairments are permanent, or are likely to be permanent, that they result in the Applicant experiencing substantially reduced functional capacity to undertake the tasks and actions involved in communication, social interaction, learning, self-care and self-management, and that they affect his capacity for social and economic participation. Nor do I understand it to be in issue that the Applicant is likely to require support under the NDIS for his lifetime. I make those findings.[26]
[26] The evidence of this is found in the reports of Dr M Birtles, General Practitioner, Dr J Bounds, Clinical Psychologist, Ms Tunnicliffe, Specialist Support Coordinator, and Ms Lorimer, Occupational Therapist, op.cit.
The next issue to consider is whether the requested supports in dispute are necessary to meet the needs of the Applicant as they arise from these impairments. Again, this is a putative analysis that requires the Applicant to establish a logical nexus between his impairment related needs and the requested support. Whether within those premises the support constitutes value for money or will be effective and beneficial for the Applicant etc, are matters for separate consideration.
A controversy between the parties to which I will return following concerns the delivery model proposed for the occupational therapy, psychology and exercise physiology supports. It is proposed that these supports be ‘delivered’ to the Applicant indirectly in a way that is mediated by the either of the Applicant’s parents or his sister who would have direct contact with the clinician. In my view this model of delivery of the requested support is not a matter that arises for consideration under paragraph 34(1)(aa). Whether supports delivered in this way will be effective and beneficial for the Applicant is a matter that arises for consideration under paragraph 34(1)(d).
I am satisfied that each of the requested supports, as identified by the Applicant, is necessary to meet his needs as these arise from his impairments of global and specific mental functions on the following bases:
-With respect to MTE, STA and SDA the Applicant is unable, because of his impairments, to meet his own subsistence related needs, including in relation to shelter. As an adult it is not reasonable that he continues to rely upon his older parents to meet these needs. They are exhausted from meeting his support needs and require relief.
-With respect to one-to-one support worker assistance, without such assistance the Applicant is unable, because of his impairments, to meet his own subsistence related needs, or to socialise with others. This support will assist him to develop his functional capacity for communication, learning, social interaction, self-care and self-management,
-psychology support is necessary to meet the impairment related needs of the Applicant on the basis that this speciality is concerned with mental processes and behaviour in relation to which the Applicant experiences significant challenges. It has the potential to improve his functional capacity for communication, learning, social interaction and self-management,
-occupational therapy support is necessary to meet the impairment related needs of the Applicant on the basis that he experiences substantially reduced functional capacity to undertake the tasks and actions involved in most life activity areas. This specialty is focused on the development of strategies and the provision of assistive technologies to improve function,
-exercise physiology support is necessary to meet the impairment related needs of the Applicant on the basis that, due to his impairments, he currently lives a sedentary isolated lifestyle and is deconditioned. Clinical support in this speciality has the potential has the potential to improve his substantially reduced capacity for self-care and may also improve his functional capacity for social interaction.
I now turn to further consider the Applicant’s request identified as MTA against the paragraph 34(1)(f) requirement in greater detail, each other requested support against the criteria specified in paragraphs 34(1)(a), (b), (c), (d) and (e) the relevant rules.
Medium Term Accommodation support
The Applicant requests approval of funding for 180 days MTA annually until SDA premises become available to him. It is submitted in support of this request, principally by reference to the evidence of Mr and Ms Trapezanidis and Ms Lorimer, his Occupational Therapist, that:
-The Applicant’s current living configuration in his family home is seriously unsuitable for his needs and has led to a significant decline in his quality of life as compared with when he occupied that property alone and his family lived elsewhere under the ISP arrangement. In this respect it is said that the Applicant has lost significant psychosocial and physical function, has limited engagement with daily tasks, often remaining in bed, staring at the ceiling, and barely moving for most hours of the day. The Applicant has become deconditioned because of his inactivity and frequently expresses distress at his circumstances,
-there are no currently available SDA options in the locality in which the Applicant requests this support. There is a current expectation of a lengthy wait for a suitable SDA option to become available, as this is likely to involve construction of this dwelling. The Applicant requires adequate accommodation in the meantime,
-the Applicant’s utilisation of MTA will assist in his transition to SDA by desensitising him to an environment/s other than his family home,
-the Applicant’s parents are under continuous serious emotional and physical stress because of the demands associated with supporting him. MTA is necessary to provide them with sustained relief from their carer roles.
Dr Bounds provides a summary of the difficulties faced by the Applicant and his family in their current living environment in her report dated 12 February 2024:[27]
[27] Hearing Tender Bundle, tab A 25, pages 709 – 710.
The Trapezanidis family have had to shift back into their housing commission home with Brandon since April of 2022. All being together since early April has been a very fraught time. Some of the reasons are that:
a) Brandon has been very dislocated having everyone back in the home. He cannot walk in the house freely and spends most of his time in bed [which concerns me greatly]. He is also very affected if any household member is making too much noise. As well, he does not like to move around within the house or outside.
b) Brandon is also very affected by not having a sensory room any longer. He used to use this room to keep himself calm.
c) Brandon will not eat the food prepared for the while family. His schizophrenia leads him to think that the food is poisoned. He will only eat certain food in prepared packages.
d) As well, Brandon has multiple showers due to bowel or bladder accidents and to help himself calm. However, there is only one bathroom in the house [with the household’s one toilet in the bathroom too], so there is a lot of pressure on all family members being able to use the bathroom.
e) Brandon also was used to getting himself a drink and food overnight but when he goes into the kitchen [which adjoins the lounge room] during the night he disrupts his sister [who has to sleep in the loungeroom], which impacts on her sleep.
Current impact on Brandon
1.I am very concerned that Brandon is now spending almost all of his time in his room during the day and at night-time. Often, he is lying on his bed. At other times he may pace in his room, and at night he paces in the hallway which is disruptive to others trying to sleep. In general, he cannot be encouraged to come out of his room as he does not like being amongst too many people, or out where there is too much light. This means though, that the amount of exercise he is getting by moving around more freely is greatly reduced.
2.As well, the positive stimulation Brandon was receiving in his sensory room [which he enjoyed] can no longer happen because there is no room for this facility.
3.in addition, the routines he had previously established for himself can now no longer exist for him and this is increasing his anxiety and distress.
4.As well, if he cannot get into the bathroom when he needs to, because it is being used by another family member, he becomes highly distressed, and he sometimes has a toileting accident while waiting.
The CEO opposes MTA being approved as a support for inclusion in the Applicant’s SoPS on the basis that the request, in substance, is not a request for MTA as prescribed and is not a NDIS Support that can be approved because of the paragraph 34(1)(f) requirement. In the alternative, if the Tribunal does determine that the support requested is MTA, the CEO contends it does not represent value for money and is not effective and beneficial as required by paragraphs 34(1)(c) and (d) respectively. She does so by reference to the prescription of MTA contained in the NDIS Supports Transitional Rules and the Agency’s MTA Operational Guidelines[28] which, it is submitted, require that MTA support is only available, relevantly, in circumstances where the participant is waiting to move into a confirmed long-term housing solution; that is, there must be a long-term home to move into before MTA can be approved. She also contends that the Agency’s Operational Policy limits MTA to a 90-day period. It is submitted that MTA is not an ongoing housing solution, or one which may be rolled over indefinitely because SDA has not been found. The CEO submits that once SDA is secured, even if not immediately available, MTA may then be considered.
[28] National Disability Insurance Agency, Medium term accommodation (operational guideline), 30 January 2023
The Agency’s MTA Operation Guidelines describe this support and the circumstances in which it is available as follows:
What is medium term accommodation?
Medium term accommodation is one of the home and living supports we may fund. Its funding for somewhere to live if you can’t move into your long term home because your disability supports aren’t ready.
Medium term accommodation isn’t a standalone support. We only include it in your plan as part of your other home and living support needs. We generally fund medium term accommodation for up to 90 days. However, this can be extended in limited circumstances. Talk to us if your longer term housing will take more than 90 days to be ready.
Funding for medium term accommodation only covers the cost of the accommodation for the time you stay there. It’s a temporary and extra cost you have due to your disability support needs. For example, you might need medium term accommodation while you wait for your home modifications to be completed.
…
We usually fund medium term accommodation as a once-off support. This is because you probably won’t need medium term accommodation again once you move into your long term home. It isn’t short term accommodation or emergency housing. There are other mainstream and community supports that can provide general housing and accommodation support.
…
Are you eligible for medium term accommodation?
To be eligible for medium term accommodation, you must meet all 3 criteria:
1. You have a long-term home you will move into after medium term accommodation.
2. You can’t move into your long term home yet because your disability supports are not ready.
3. You can’t stay in your current accommodation while you wait for your long-term home.
…
Do you have a long-term home you will move to?
A long-term home is the home you expect to live in for the future, and its been confirmed you can live there.
…
When can you move into your long term home?
We only fund medium term accommodation if you can’t move into your long term home now because your disability supports aren’t ready.
For example, you might need medium term accommodation if you can’t move into your long-term home until:
…
·You’ve been offered a place in a home where you’ll get supported independent living or individualised living options – for example, if you’re waiting for someone to move out of the home before you can move in.
You need to give us evidence of the date when you can move into your long-term home, generally within 90 days.
…
Can you stay in your current accommodation while you wait for your long term home?
We only fund medium term accommodation if you can’t stay in your current accommodation while waiting for your long term home.
For example, you could give us evidence that:
…
·there’s been a breakdown in your supports, so you can’t live in your current home.
…
If you have a stable home now, we’d usually expect you can keep living there until you can move to your new home. For example, if you’re living in your family home, it might be reasonable for you to keep living there until your new home is ready.
With respect to the paragraph 34(1)(c) requirement, as I have said, I accept as a matter of general principle that occupational therapy support is reasonable and necessary to assist the Applicant to build his functional capacity for communication, learning, social interaction, self-care and self-management. In this respect it constitutes value for money having regard to the Applicant’s substantially reduced functional capacity in each of these life activity areas. However, for the reasons I have identified, I do not consider the request for an additional 38 hours’ occupational therapy support in the SoPS period that I will determine because of this review (12 months) value for money. The achievable goals for this support within that period can be pursued within the funding already approved. The future need for occupational therapy support, and its focus, is appropriately considered in the context of the reassessment of the Applicant’s plan in 12 months’ time, having regard to the progress that has been achieved towards his independent living then.
With respect to the paragraph 34(1)(d) requirement I note that occupational therapy is an accepted form of allied health support designed to improve the functional capacity of person who experiences reduced function because of impairment and disability. It is recognised as a NDIS Support in Schedule 1 of the NDIS Supports Transitional Rules. It thus may be taken to be effective and beneficial for the Applicant given his impairment and disability having regard to current good practice, including by reference to Rule 3.2(a) of the Supports for Participants Rules.
I do not have any concern about the proposed service delivery model for the provision of occupational therapy support to the Applicant. Intervention strategies will be designed, monitored and evaluated by Ms Lorimer and the Applicant’s parents and sister will be instructed in relation to their implementation. This is not tantamount to occupational therapy support being provided to the Applicant’s parents and sister as the CEO contends. Whether Ms Lorimer was able to attend the Applicant’s home and interact with him directly or not, she would not be in a direct support role with him involving any extended period of daily contact. The strategies she develops to improve his function will therefore necessarily be implemented by others. The Applicant’s parents and sister are the only persons present in the Applicant’s environment currently. In the transition from their support to formal supports, disability support staff can be instructed to implement the strategies Ms Lorimer develops.
With respect to the paragraph 34(1)(e) requirement I am satisfied that the funding of this support takes account what it is reasonable to expect family members, carers, informal supports and the community to provide. Occupational therapy is an allied health specialisation that requires specialist training, knowledge and skill. It is not reasonable to expect this to be provided informally.
With respect to the CEO’s concerns about the delegated model of care, and regarding Rule 5.1(a) of the Supports for Participants Rules, I am not concerned about the delegated model of service delivery for occupational therapy support for the reasons I have explained above. In short summary:
-The delegated model does not involve the provision of occupational therapy support to the Applicant’s parents or sister,
-The applicant’s parents and sister are the only persons present in the Applicant’s current environment who can carry out intervention strategies designed by Ms Lorimer. Responsibility for implementation of these strategies can be transferred to disability support workers as formal supports are put in place, but the evidence is that this will take some time to achieve,
-Strategies to improve the Applicant’s function in his present environment are likely to benefit him and his family, not harm them.
For the foregoing reasons I am satisfied that 40hours occupational therapy support is a reasonable and necessary support that ought to remain funded in the Applicant’s SoPS. However, I am not satisfied that an additional 38 hours of such support is reasonable and necessary. I therefore decline to approve this support for inclusion in the Applicant’s SoPS.
Support for exercise physiology
The Applicant requests approval for 26 hours per year of exercise physiology support to be included in his SoPS. In support of this request the Applicant relies principally on the evidence of Mr N Burns[64] and Ms L Burrows,[65] both exercise physiologists.
[64] N Burns, Exercise Physiologist, report dated 27 February 2024
[65] L Burrows, Exercise Physiologist, undated report, filed by the Applicant in August 2024.
The model of exercise physiology proposed is, in effect, a delegated model, in which the exercise physiologist will design an exercise program that will be implemented with the Applicant by his sister, Ms Peyton Trapezanidis. The exercise physiologist will provide ongoing guidance, supervision and monitoring in the implementation of this exercise program. Mr Burns’ proposed exercise physiology support involves weekly 30minute sessions, whereas with the same total envelope of hours, Ms Burrows proposes fortnightly sessions of 30-60minutes observed by her using telehealth technology.
Both physiologists analyse the Applicant’s need for exercise physiology in terms of the physiological barriers that exist to him meeting his NDIS Plan Goals and Aspirations. A following extract from Mr Burns’ report illustrates this:
Condition specific barrier 1: Obesity[66]
Anxiety is a highly prevalent comorbidity in individuals with schizophrenia. People, like Brandon, with anxiety, are more likely to be obese due to decreased movement. This reduced physical activity level means that these individuals are at a substantially increased risk of chronic diseases such as diabetes, asthma, hypertension, stroke, joint pain, and arthritis. Brandon will not voluntarily have blood tests, however, his doctor is of the opinion that Brandon already has undiagnosed chronic diseases, especially diabetes. A specific exercise program is required to manage these chronic diseases whilst also improving his body composition and reducing anxiety symptoms. This will ultimately enable Branson to achieve his NDIS goal of gaining support to reduce stress and anxiety.
Condition specific barrier 2; reduced standing and walking tolerances
Individuals with autism spectrum disorder present with a lower exercise capacity relative to their apparently healthy adult counterparts. A decreased exercise capacity results in Brandon being unable to stand and walk for prolonged periods of time. This means that when he does walk around the house he needs to stop for frequent rest breaks as his body feels ‘sore and weak’. An individualised exercise program is essential to improving Brandon’s overall exercise capacity and subsequent standing and walking tolerances so he is able to stand and walk around for longer periods of time. This will ultimately enable him to achieve his NDIS goal of improving his physical and mental health.
Condition specific barrier 3: Reduced balance
Individuals with autism spectrum disorder have poorly developed coordination which causes decreased balance. This places Brandon at an increased falls risk. An increased risk of falling increases the risk of injury to Brandon. An injury would provide further encouragement for Brandon to continue his sedentary lifestyle, forcing him to further rely on his support network and ultimately reduce his independence. An exercise program which incorporates balance training will allow Brandon to improve his balance and support his NDIS goal of gaining support to find suitable long term housing and living independently.
[66] Mr Burns reports the Applicant as having a Body Mass Index of 31.5/m2 which is in the medically obese range.
Mr Burns’ describes the proposed model of exercise physiology support as follows:
Individualisation
A generic exercise program would not be suitable for Brandon. As a result of his condition as well as his history of sedentary behaviour, Brandon would be extremely unlikely to follow a generic exercise program. This would result in Brandon becoming disengaged with the program … In his exercise physiology sessions, Brandon will follow an individualised progressive exercise program that targets his deficits at a level that will solicit improvements but is still achievable. This program is progressed by an exercise physiologist that is trained to progress individuals such as Brandon in a variety of ways that will ultimately ensure Brandon is engaged, progressing and achieving his goals
Adherence
Brandon exhibits a history of poor exercise adherence, especially when not being directly supervised. Brandon tends to isolate himself from others and participate in sedentary activities. This means that without encouragement from others that he trusts Brandon will not voluntarily exercise. This barrier is able to be addressed by having his older sister Peyton run his sessions with programming and guidance provided by an accredited exercise physiologist to increase Brandon’s physical activity levels. This will ultimately allow him to increase his exercise capacity and achieve his NDIS goals.
1:1 supervision is most appropriate
Due to Brandon’s decreased balance which results from his autism spectrum disorder diagnosis, he has an increased risk of injury. Without adequate supervision (1:1 supervision) this presents as a potential safety issue. Without 1:1 supervision he would not be able to safely perform the necessary exercises to correct this deficit. An injury would require further time away from sessions and ultimately will result in a further decline in his capacities. Exercise Physiologists are trained to adapt exercise programs to suit an individual’s needs as well as recognise safety concerns and design an appropriate program around these concerns.
Ms Burrows’ report is essentially to the same effect. However, notably, she opines as to the importance of the proposed delegated model due to the Applicant’s paranoia, refusal to interact with persons outside his immediate family, or attend venues outside his family home.
The CEO accepts that exercise physiology is a reasonable and necessary support for the Applicant and does not quibble with the quantum requested. Her objections to the approval of this support are founded on its model of delivery; that is, she objects to this support being implemented by the Applicant’s sister on a paid basis, except to the extent that this is a short-term transitional arrangement either to this support being provided to the Applicant directly by an exercise physiologist, or under a delegated model by a disability support worker who is not a family member. She does not object to this support being provided to the Applicant by family members under a delegated model on an unpaid basis.[67]
[67] CEO’s SFIC filed 15 November 2024 at [93] – [94].
With respect to the s 34(1)(a) requirement, I note that the second short-term goal in the Applicant’s Statement of Goals and Aspirations is: “[t]o support and improve [the Applicant’s] physical and mental health, diet and wellbeing fitness”. Under this goal are the following sub-headings and commentary:
How I will achieve this goal
I will work with my supports to build my interest in fitness activities and participate in positive healthy routines.
How I will be supported
My family will assist me. My support workers will work with me to explore healthy activities. My Allied health supports will provide me with strategies to help me to engage in interests. My Allied health supports will provide me with behaviour strategies to help me participate.
There is an obvious direct connection between exercise physiology support and this goal. I am satisfied that this support would assist the Applicant to pursue his fitness and health related aspirations.
With respect to the paragraph 34(1)(b) requirement I am satisfied that exercise physiology support will assist the Applicant to undertake activities (being structured, routine exercise) that will reduce his obesity and increase his tolerances for standing and walking. In the context of several other variables this will facilitate his social and economic participation; that is, his movement related capacity. I note on the evidence before me this is likely to require time and patience.
With respect to the paragraph 34(1)(c) requirement I am satisfied that exercise physiology support is directed at building the Applicant’s functional capacity for self-care, and over time, and in combination with other factors, also has the potential to increase his functional capacity to undertake tasks and actions involved in social interaction. I am persuaded that a professionally designed exercise program for the Applicant is appropriate given his impairment profile and deconditioning. It constitutes value for money on this general basis for the purposes of paragraph 34(1)(c) and Rule 3.1(b). The hours of support sought and the frequency of their delivery (on either of the bases proposed by Mr Burns and Ms Burrows) are proportionate to the objective of providing this support. Funding for this support will otherwise be determined in accordance with the Agency’ NDIS Pricing Arrangements and Price Limits 2025-2026.[68] It constitutes value for money on this basis having regard to the Act and Rule 3.1(a) and (e).
[68] Op cit.
I do not have any concern about the delegated model of exercise physiology per se and note that this is a typical model of delivery of support of this kind, albeit usually after an initial period of the direct provision of such support to a participant. Over time, the delegated model is likely increase in value for money as additional sessions can be scheduled using this approach without an exercise physiologist being directly involved (the supervision of the exercise sessions being carried out by disability support staff).
With respect to the paragraph 34(1)(d) requirement I note that exercise physiology is an accepted form of allied health care and support for persons experiencing health risks due to deconditioning. It is recognised a NDIS Support in Schedule 1 of the NDIS Supports Transitional Rules. It thus may be taken to be effective and beneficial for the Applicant given his impairment profile and deconditioning having regard to current good practice, including by reference to Rule 3.2(a) of the Supports for Participants Rules.
With respect to the paragraph 34(1)(e) requirement, and by reference to Rule 3.4(b) of the Supports for Participants Rules, exercise physiology is not a form of support that it is reasonable to expect family members, carers, informal networks and the community to provide to the Applicant. It is an allied health specialisation that requires specialist training, knowledge and skill.
The CEO is concerned, by reference to Rule 5.1(a) of the Supports for Participants Rules, that the performance of the delegated model of exercise physiology by Ms Peyton Trapezanidis on a paid basis may cause harm to the Applicant and his family, by fundamentally altering the nature of their relationship. This concern is about whether Ms Ms Trapezanidis should be involved in the Applicant’s support as a paid support worker. There is nothing particular to exercise physiology in this concern. The CEO accepts that the delegated model of exercise physiology could be implemented by family members on an unpaid basis. Having regard to that, I rely on what I have said above in relation to the request for disability support worker assistance.
With respect to the paragraph 34(1)(e) requirement, I am therefore satisfied that exercise physiology is a reasonable and necessary support having regard to what it is reasonable to expect families, carers, informal networks and the community to provide.
For the foregoing reasons I am satisfied that 26 hours per annum of exercise physiology support is a reasonable and necessary support which ought to be approved for inclusion in the Applicant’s SoPS. This includes allowances for exercise program design and revision, delegated implementer training, program supervision, and program evaluation and report writing.
The reassessment date
The final issue requiring determination is the date by which, or the circumstances in which, the Agency must reassess the Applicant’s Participant Plan pursuant to paragraph 33(2)(c) and s 49 of the Act.
The Applicant submits that the Tribunal ought to determine pursuant to paragraph 33(2)(c) that the reassessment date for the Applicant’s plan will be 3 years from the date of its decision. In this context it is further proposed that this ‘3 year plan’ be divided into 3, 1-year funding intervals pursuant to paragraph 33(2C)(a)(ii).
The Applicant submits in support of this proposal that a SoPS of this duration is necessary to provide the Applicant and his family with stability after what has been a prolonged traumatic period of uncertainty and disruption. Additionally, it is submitted that the implementation of approved support for SDA, and the Applicant’s transition to this new accommodation and living arrangement, will take some time, particularly because there are no SDA properties available in his location of choice, which is likely to require construction of an approved SDA dwelling. It is further submitted on this point that the appropriate point for reassessment of the plan will be when the SDA property becomes available to the Applicant as it will then be necessary to re-determine what supports are reasonable and necessary in this new environment.[69]
[69] Applicant’s SFIC, dated 6 November 2024, at [136] – [137].
The CEO opposes the Tribunal specifying a 3-year reassessment date for the Applicant’s plan. She submits by reference to paragraph 34(1)(d) and Rule 5.1(a) of the Supports for Participants Rules that a ‘3-year plan’ would not be effective and beneficial and is likely to cause harm to the participant or pose a risk to others.
The CEO approaches this issue on the basis that paragraph 33(2)(c) is governed by the matters specified in s 34(1) and that Rule 5.1(a) is engaged, that is: that the proposed reassessment date must be reasonable and necessary, and not be likely to cause harm to the participant or pose a risk to others.[70] However, that is not the case.
[70] CEO’s SFIC dated 15 November 2024 at [19]
Section 34(1) governs the determination of the general supports (if any) that will be provided to, or in relation to, the participant (paragraph 33(2)(a)) and the reasonable and necessary supports (if any) that will be funded under the NDIS. It does not govern the matters referred to in s 33(2)(c), (d) and (e).
Rule 5.1(a) of the Supports for Participants Rules provides, in summary, that a support will not be provided or funded under the NDIS if it is likely to cause harm to the participant or pose a risk to others. A distinction is to be drawn between a support and a reassessment date; a reassessment date is not a support.
However, in substance, the CEO’s submission referencing Rule 5.1(a) is in relation to the proposed initial provider of one-to-one support worker assistance to the Applicant, being his sister Ms Peyton Trapezanidis. It is submitted that should this arrangement continue beyond an initial transition period it will be harmful to him and also his family members in terms of entrenching socially isolative behaviour and immediate family dependence. Additionally, the CEO submits that a ‘3-year plan’ is only appropriate in circumstances where a participant is in a stable situation with support needs that are unlikely to change, where they are confident in using their funding to achieve their goals, and where they are focused on longer term goals, which it is said, is not the Applicant’s situation.
I accept the Applicant’s submission that he and his family now require stability and certainty in the provision of supports to be able to recover from a traumatic period of uncertainly and disruption, and work towards a future that will afford each of them reasonable quality of life. It is to be hoped that the supports approved here and otherwise already included in his SoPS will provide the foundation for continuity of support towards the attainment of those goals. In this respect it brings to conclusion various disputes between the parties that have inhibited progress towards obtaining a satisfactory long-term support arrangement for the Applicant post his transfer to the NDIS from his former State funded support arrangement.
But this SoPS is only a starting point in a planned major transition from informal to formal supports, and to independent living for the Applicant. In this respect, the Applicant’s circumstances are not ‘stable’ in the sense that change is not anticipated over a 3-year trajectory. In fact, fundamental change is anticipated within that timeframe.
In my view it is appropriate that the CEO maintains reasonable oversight of the implementation of the transitions envisaged by the supports approved in the Applicant’s SoPS by virtue of this decision and otherwise for several reasons. Those reasons are: to ensure that a clear concrete transition plan is established; that there is reasonable momentum in the implementation of that transition plan; that there is agility to vary supports should circumstances emerge during implementation that require this; and, to ensure that the funded supports function in an integrated, cohesive way consistent with the attainment of transition goals.
The timely resolution of the serious challenges facing the Applicant and his family in terms of his support arrangements should be the driving motivation for oversight of the Applicant’s plan by the Agency. Nevertheless, it is also appropriate to note that the Applicant’s SoPS involves a very a substantial commitment of public expenditure both in any current term of his plan and on a lifelong basis. On a prudential basis it is therefore appropriate for the Agency to ensure that this funding is being utilised efficiently and effectively in terms of the implementation of the planned transitions.
For these reasons, pursuant to paragraph 33(2)(c) I will specify that the Applicant’s plan is to be reassessed by 31 August 2026.
Orders
For the foregoing reasons, I make the following orders:
(1)Pursuant to s 105 of the Administrative Review Tribunal Act 2014 (Cth) the decision under review made on 2 October 2024 is set aside and remitted to the CEO for reconsideration by 1 October 2025 in accordance with directions that:
(a)the following supports are to be approved for inclusion in the Applicant’s Statement of Participant Supports:
(i)56 days Short-Term Accommodation, such support to be provided subject to the conditions referred to in paragraph 1(a)(iii),
(ii)Specialist Disability Accommodation with 2 bedrooms and an additional room for on-site overnight assistance for 1 occupant:
-building type: house,
-design category: improved liveability,
(iii)Assistance with daily living and social and community participation:
-30 hours per week on weekdays at 1:1 intensity;
-5 hours on Saturdays at 1:1 intensity;
-4 hours on Sundays and public holidays at 1:1 intensity,
such support to be provided subject to the following conditions:
a.Transition to provision of this support by a provider independent of the Applicant’s family before the reassessment date, and
b.Ms Peyton Trapezanidis must not be engaged to provide this support for more than 5 days per week, or for more than 8 hours per day,
(iii)30 hours of psychology support;
(iv)26 hours of exercise physiology support.
(b)The support specified in paragraph 1(a)(ii) is to replace the SDA support specified in the Applicant’s existing Statement of Participant Supports,
(c)The support specified in paragraph 1(a)(iii) is to replace Assistance with Social Participation in the Applicant’s existing Statement of Participant Supports,
(d)All other supports in the Applicant’s current Statement of Participant Supports, excepting any one-off assistive technology supports already used, are to be replicated from the date on which the supports specified in paragraph 1(a) are included in the Applicant’s Statement of Participant Supports until the reassessment date,
(e)the date by which the CEO must reassess the Applicant’s plan is to be 12 months after the supports in paragraph 1(a) are included in the Applicant’s Statement of Participant Supports.
(2) Pursuant to s 101(a) of the Administrative Review Tribunal Act 2024 (Cth) the application for review insofar as it concerns the internal review decision dated 25 November 2021, and the CEO’s decision to approve a Statement of Participant Supports dated 5 October 2022, is dismissed on the basis that it is now lacking in substance.
283. Date(s) of hearing:
284. 18, 19 21 and 22 November, 19 and 20 December 2024, 31 January 2025
285. Counsel for the Applicant
286. Mr T Noonan
287. Solicitor for the Applicant:
288. Mr M Boere, Victoria Legal Aid
289. Counsel for the Respondent:
290. Ms N Blok
291. Solicitor for the Respondent:
292. Mr B Richardson, Sparke Helmore Lawyers
293.
- AGLC
- Brandon Trapezanidis by his Nominee George Trapezanidis and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1674
- Case
- [2025] ARTA 1674
- Decision Date
CaseChat Overview and Summary
The legal issues before the Tribunal included determining whether the requested supports were classified as NDIS Supports, whether they were necessary to address Brandon's specific impairments, and if they met the criteria set out in the NDIS Act and Rules for being reasonable and necessary. The Tribunal also had to consider whether the requested Specialist Disability Accommodation (SDA), the provision of support workers, psychology, occupational therapy, and various types of accommodation met the statutory and regulatory requirements. Additionally, the Tribunal needed to decide whether the Tribunal itself had the authority to specify the provider of a support, and whether there was a risk of harm to Brandon or his family if formal support was provided by family members.
The Tribunal found that while the CEO had not erred in law in her assessment of the evidence, the decision under review did not sufficiently address Brandon's needs. The Tribunal concluded that certain supports, such as the SDA, some occupational therapy, psychology, and exercise physiology services, were indeed necessary and reasonable. It also found that the provision of support workers on a paid basis by family members did not inherently constitute a risk of harm. However, the Tribunal did not approve all the requested supports, such as the specific type of SDA and additional occupational therapy hours, due to either insufficient evidence or the existing funding being adequate. The Tribunal set a reassessment date for Brandon's plan at one year due to the transitional nature of the current plan and the CEO's ongoing responsibility to monitor progress.
The Tribunal set aside the decision under review and remitted it for reconsideration with specific directions. It dismissed the application insofar as it related to a non-operative internal review decision and a subsequent non-operative decision to approve a new SoPS, as these matters were no longer substantive. The Tribunal's decision aimed to ensure that Brandon's SoPS more accurately reflected his needs, providing him with the necessary supports to improve his quality of life and functional capacity.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Unlike the NDIS Act and Rules these are policy documents that are not binding upon the Tribunal. Nevertheless, it is long-established principle that the Tribunal should apply government policy relevant to an issue before it for consideration unless there is good reason not to do so, such as an inconsistency with the Act or a Rule.[11][11] Re Drake and Minister for Immigration and Ethnic Affairs (no. 2) (1979) 2 ALD 634Consideration Having regard to the current state of the law, the questions that must be asked in this review, and the sequence in which they must be asked and answered is as follows:(a)Are the supports that are in dispute NDIS Supports as defined?If the answer to this question is “no” with respect to any of the supports in dispute, that support can no longer be considered for approval in the Applicant’s SoPS because it cannot meet the requirement of s 34(1)(f).If the answer to (a) is “yes” with respect to any of the supports in dispute, then that support can be considered for approval in the Applicant’s SoPS if it is a support that is necessary to address needs of the Applicant that arise from an impairment in relation to which she meets the disability requirement. Therefore:(b)What are the Applicant’s permanent impairments that result in substantially reduced functional capacity to undertake any of the activities of communication, social interaction, learning, mobility, self-care and self-management, and which affect his capacity for social or economic participation?(c)Do any of the supports in dispute meet the needs of the Applicant arising from an impairment in relation to which he meets these disability requirements?If any of the supports in dispute do not meet the needs of the Applicant arising from an impairment in relation to which he meets the disability requirements then they cannot be considered for inclusion in his SoPS because they cannot meet the requirements of s 34(1)(aa).(d)If the answer to (c) is “yes” then ask whether the support in dispute meets the requirements of s 34(1)(a), (b), (c), (d) and (e) and Rule 7 of the Miscellaneous Provisions Rules. Specifically with respect to SDA support, although the general provisions of s 34(1) apply in the consideration of this support, as will be apparent from what is set out above, the SDA Rules require more detailed consideration of several matters including some that are at least partially co-extensive with the s 34(1) considerations. I have explained the structure of analysis required in the consideration of SDA support in Allen,[12] and I adopt what I have said there for present purposes.[13][12] Allen and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1359[13] Ibid at [29]Are the supports in dispute NDIS Supports? Relevantly to this case, Schedule 1 of the Transitional NDIS Supports Rules prescribes those supports that are NDIS Supports for the purposes of ss 10 and 34(1)(f) of the NDIS Act. With respect to the supports in dispute:-Item 1 prescribes a “Accommodation assistance or tenancy assistance” category, which is defined, relevantly, to include “[s]upports that build capacity, guide, prompt, or assist a participant to do activities for finding or keeping appropriate accommodation, [which] includes the following: … “(b) medium term accommodation where a participant cannot move into long term accommodation due to that accommodation or other supports not being ready and current accommodation is not suitable”,-Item 5 prescribes a “Assistance with daily life tasks in a group or shared living arrangement” category which is defined relevantly to include “[supports that provide assistance with or supervision of daily living tasks to participants in a shared living environment [which] includes the following (a) supports provided on a temporary or ongoing basis; (b) supports for short-term accommodation and respite; …”,-Item 15 prescribes a “Development of daily care and life skills” category which is defined to include “[s]upports that provide training and development activities for participants or carers to increase a participant’s ability to live as independently as possible (including as part of psychosocial recovery supports) [which] includes increasing the participant’s ability to undertake the following activities: (a) shopping; (b) meal preparation; (c) managing finances; (d) managing a participant’s own personal care; (e) travel and use public transport; (f) engage in social activities; (g) improve relationship and social skills,-Item 18 prescribes a “Exercise physiology and personal well-being activities” category which is defined to be “supports that maintain or increase physical mobility or well-being through personal training or exercise physiology to address the functional impact of the participant’s disability”, which includes “(a) accessing services from an appropriately qualified professional”, “(b) assessment and development of a personalised exercise program which aims to increase or maintain a participant’s functional capacity”, and “(c) maintenance of muscle strength, range of motion, balance and mobility”,-Item 27 prescribes a “Participation in community, social and civic activities” category which is defined to be “[s]upports that assist a participant to take part in community, social and cultural and civic activities [which] includes the following: (a) supporting participants during relevant activities; (b) working with participants to develop their ability to partake in these activities,-Item 29 prescribes a “Specialist disability accommodation” category, which is defined to be “[t]he provision of specialist disability accommodation which is accommodation for a participant who requires specialist housing solutions, including to assist with the delivery of supports that cater for the person’s extreme functional impairment or very high support needs”,-Item 34 prescribes a “Therapeutic supports” category which is defined to be “supports that provide evidence-based therapy to help participants improve or maintain their functional capacity in areas such as language and communication, personal care, mobility and movement, interpersonal interactions, functioning (including psychosocial functioning) and community living”. This includes “an assessment by allied health professionals for support planning and review as required”.