Brown and National Disability Insurance Agency (NDIS)
[2025] ARTA 2029
•9 October 2025
Brown and National Disability Insurance Agency (NDIS) [2025] ARTA 2029 (9 October 2025)
Applicant/s: Mali Brown
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/9571
Tribunal:General Member J Papalia
Place:Perth
Date:9 October 2025
Decision:The Tribunal varies the decision under review.
Statement made on 09 October 2025 at 4:53pm
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – neurological impairment - reasonable and necessary supports – bedroom blinds – kitchen drawers – whether day-to-day living costs – whether ‘standard item’ – weight to be given to treating occupational therapist opinion – weight to be given where treating medical practitioner is not available for cross-examination – reviewable decision varied.
LEGISLATION
National Disability Insurance Scheme (Getting the NDIS Back on Track No 1) (NDIS Supports) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
CASES
Bakovic v Rosebridge Nominees Pty Ltd [1999] WASCA 78
Cooper v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2023] FCA 1158
Disorganized Developments Pty Ltd v South Australia (2023) 97 ALJR 575
National Disability Insurance Agency v Warwick [2025] FCAFC 100
Polizzi v Commissioner of Police (No 2) [2017] WASC 166
Re FSWN and National Disability Insurance Agency [2025] ARTA 114
Re Hyde and National Disability Insurance Agency [2025] ARTA 365
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
SECONDARY MATERIALS
National Institute for Health and Care Excellence (UK), ‘Myalgic encephalomyelitis (or encephalopathy/chronic fatigue syndrome: diagnosis and management’ (NICE Guideline, NG206, 29 October 2021).
Statement of Reasons
THE APPLICATION
‘From coffee you learn how darkness can make things clearer.’[1] This aphorism neatly captures what this matter was about.
[1] >
Ms Brown (the Applicant) is a participant of the National Disability Insurance Scheme (NDIS). She first gained access to the NDIS in August 2018, as part of the WA Scheme.[2] Ms Brown has impairments that are attributable to her neurological disability.
[2] See Exhibit 3.
Before the Tribunal, Ms Brown sought review of decisions made regarding the funding contained within her Statement(s) of Participant Supports (SoPS) prepared under Pt 2 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).
The matter has been before the Tribunal (and its predecessor) for some time. Over that time, the dispute between the parties narrowed to requested capital support funding for the purchase and installation of:
(a)retractable ‘blockout’ blinds in the bedroom (quoted at $3,880) (the bedroom blinds);[3] and
(b)kitchen drawers designed by ‘Blum’ and rated to 65 kg (quoted at $1,980) (the kitchen drawers).[4]
[3] See Exhibit 1, A1; Applicant’s Statement of Facts, Issues and Contentions (ASFIC) dated 20 March 2025, [1(a)], [3]-[4]; Respondent’s Statement of Facts, Issues and Contentions (RSFIC), [11(a)].
[4] See Exhibit 1, A6; ASFIC, [1(b)]; RSFIC, [11(b)].
Ms Brown sought the bedroom blinds and the kitchen drawers to address her sleep disturbance, light sensitivity, ‘post-exertional malaise’ (PEM) and orthostatic intolerance, which are each attributable to her disability. She is said to have extremely reduced functional capacity across most of the domains set out in s 24(1)(c) of the NDIS Act, including self-care, mobility and self-management. The blinds are to ensure that her bedroom is completely dark for periods of rest whilst allowing her to open them when she needs to be awake. The kitchen drawers are sought to maintain Ms Brown’s independence, including enabling her to prepare her own small meals in the kitchen. The requested supports are put as an alternative to additional support worker assistance.
The Respondent (Agency) argued that:
(a)neither the bedroom blinds or the kitchen drawers were ‘NDIS Supports’ for the purposes of ss 10(4) and 34(f) of the NDIS Act (in the first instance);
(b)each request does not meet the criteria found in ss 34(1)(c) and (d) (in the second instance); and
(c)the bedroom blinds are ‘likely to cause harm’ to the Applicant and therefore cannot be provided or funded by virtue of r 5.1(a) of National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Support Rules).[5]
[5] See RSFIC, [14]-[15]; Closing Submissions made on 23 July 2025.
For the following reasons, the Tribunal has decided that each requested support meets the statutory criteria for them to be funded under the NDIS. Consequently, the correct or preferable decision is to vary the reviewable decision so that they are included in the Applicant’s SoPS.
BACKGROUND
By application dated 19 December 2023,[6] Ms Brown applied to the (then) Administrative Appeals Tribunal (AAT) for review of an internal review decision made by the Agency on 4 December 2023[7] and regarding an earlier plan decision made on 4 July 2023.
[6] Exhibit 1, T1.
[7] Exhibit 1, T2.
These decisions have now been superseded by a new plan decision made on 20 November 2024, pursuant to s 85(2) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act).[8] This proceeding now relates to the merits of that decision.[9]
[8] See RSFIC, [8].
[9] See ART Act, s 85(6).
Ms Brown has an accepted diagnosis for ‘Myalgic Encephalomyelitis/Chronic Fatigue Syndrome’ (ME/CFS).[10] This seems to have been established in 2014,[11] and there are also secondary diagnoses of Major Depressive Disorder (MDD) and orthostatic intolerance.[12] As a result of these conditions and the impairments attributable to them, Ms Brown rarely leaves the house.[13]
[10] See Exhibit 3, p 1; Exhibit 1, A9 and R2; RSFIC, [2].
[11] See Exhibit 1, T3, p 51.
[12] See Exhibit 1, A9, p 298; R2, p 370.
[13] Evidence on 16 July 2025; see also Exhibit 1, T3.
The UK National Institute for Health and Care Excellence (NICE) have published a guideline regarding ME/CFS diagnosis and management dated 29 October 2021 (NICE Guideline).[14] The NICE Guideline describes ME/CFS as follows:
[1.1.1] Be aware that ME/CFS:
·is a complex, chronic medical condition affecting multiple body systems and its pathophysiology is still being investigated
·affects everyone differently and its impact varies widely – for some people symptoms still allow them to carry out some activities, whereas for others they cause substantial incapacity
·is a fluctuating condition in which a person’s symptoms can change unpredictably in nature and severity over a day, week or longer
·can affect different aspects of the lives of both people living with ME/CFS and their families and carers, including activities of daily living, family life, social life, emotional wellbeing, work and education.
[14] See Exhibit 1, A9, p 295.
Ms Brown falls within the classification of ‘Severe ME/CFS’ according to the NICE Guideline,[15] which is described as:
People with severe ME/CFS are unable to do any activity for themselves or can carry
out minimal daily tasks only (such as face washing or cleaning teeth). They have
severe cognitive difficulties and may depend on a wheelchair for mobility. They are
often unable to leave the house or have a severe and prolonged after-effect if they
do so. They may also spend most of their time in bed and are often extremely
sensitive to light and sound.[16]
[15] See Exhibit 1, A9, p 295.
[16] Box 1 on page 8 of 96.
Dr David Gorman, the Respondent’s independent medical expert, testified that the current scientific thought was that conditions like ME/CFS, or others such as ‘long-covid’, are likely caused by a viral illness, and that there have been several studies indicative of hormonal changes, changes to immune function, and debilitating fatigue.
The NICE Guideline describes the following diagnostic symptoms:
All of these symptoms should be present:
• Debilitating fatigue that is worsened by activity, is not caused by excessive cognitive, physical, emotional or social exertion, and is not significantly relieved by rest.
• Post-exertional malaise after activity in which the worsening of symptoms:
－ is often delayed in onset by hours or days
－ is disproportionate to the activity
－ has a prolonged recovery time that may last hours, days, weeks or longer.
• Unrefreshing sleep or sleep disturbance (or both), which may include:
－ feeling exhausted, feeling flu-like and stiff on waking
－ broken or shallow sleep, altered sleep pattern or hypersomnia.
• Cognitive difficulties (sometimes described as 'brain fog'), which may include problems finding words or numbers, difficulty in speaking, slowed responsiveness, short-term memory problems, and difficulty concentrating or multitasking.[17]
[17] Box 2 on page 12 of 96.
…
[1.2.4] Be aware that the following symptoms may also be associated with, but are not exclusive to, ME/CFS:
• orthostatic intolerance and autonomic dysfunction, including dizziness, palpitations, fainting, nausea on standing or sitting upright from a reclining position
• temperature hypersensitivity resulting in profuse sweating, chills, hot flushes, or feeling very cold
• neuromuscular symptoms, including twitching and myoclonic jerks
• flu-like symptoms, including sore throat, tender glands, nausea, chills or muscle aches
• intolerance to alcohol, or to certain foods and chemicals
• heightened sensory sensitivities, including to light, sound, touch, taste and smell
• pain, including pain on touch, myalgia, headaches, eye pain, abdominal pain or joint pain without acute redness, swelling or effusion.
The Tribunal was told that Ms Brown has each of the diagnostic symptoms and most of the additional symptoms, including orthostatic intolerance and extreme sensitivity to light.[18]
[18] See Exhibit 1, A9, pp 297-298.
THE HEARING AND THE EVIDENCE
The parties appeared before the Tribunal on 16, 17, and 23 July 2025 by video link. Ms Brown was represented by Ms Julie Bloomfield, a disability advocate with People with Disabilities WA. The Agency was represented by Mr Matthew Paterson of counsel instructed by Mills Oakley Lawyers Pty Ltd.
The following documents were marked as exhibits:
(a)Joint Hearing Bundle, including the parties’ submissions (391 pages) (Exhibit 1);
(b)Letter regarding Ms Brown’s Sleep-Wake Cycle and Treatment History dated 20 June 2025 and authored by her general practitioner, Dr Trevor Claridge (four pages) (Exhibit 2);
(c)Letter from the Department of Communities (WA) regarding Ms Brown’s first NDIS Plan dated 28 October 2018 (six pages) (Exhibit 3);
(d)Undated correspondence from Dr Claridge to Ms Brown regarding his qualifications and experience (one page) (Exhibit 5);[19] and
(e)NDIS Plan dated 20 November 2024 (Exhibit 6).
[19] The Tribunal refused the Respondent’s tender of email correspondence from July 2024 (MFI4) due to s 88(1) of the ART Act.
The Tribunal took oral evidence from:
(a)Ms Brown;
(b)Dr Gorman, specialist medical practitioner; and
(c)Ms Sasha Wray, occupational therapist.
Approach to evidence
In approaching the information and evidence, the Tribunal notes that:
(a)its procedures are generally discretionary and are to be based upon the circumstances of the proceeding, including any provisions of the enabling act and the ART Act and rules;[20]
(b)it must act with as little formality and technicality as a proper consideration of the matters before the Tribunal permits;[21]
(c)it is not bound by the rules of evidence but may inform itself on any matter in such manner as it considers appropriate;[22] and
(d)the procedural flexibility accorded to the Tribunal does not absolve it from the obligation to make findings of fact based upon material which is logically probative in which the rules of evidence provide a guide.[23]
[20] ART Act, s 49.
[21] ART Act, s 50.
[22] ART Act, s 52.
[23] See Re Kevin and Minister for Capital Territory (1979) 37 FLR 1; (1979) 2 ALD 238, 242-3 [12]; Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247, 257.
The legislative context to this review includes the principles set out at ss 4, 5, 17A, and 31 of the NDIS Act, including that the Tribunal’s assessment of the merits of Ms Brown’s plan, must, ‘so far as reasonably practicable’:
(a)be individualised and directed by Ms Brown;
(b)where relevant, consider and respect the role of family, carers, and other persons who are significant in the life of Ms Brown;
(c)where relevant, recognise and respect the relationship between Ms Brown and her family and carers;
(d)consider the availability to Ms Brown of informal support and other support services generally available to any person in the community;
(e)support the community to respond to the individual goals and needs of Ms Brown;
(f)be underpinned by the right of Ms Brown to exercise control over her own life;
(g)advance the inclusion and participation in the community of Ms Brown with the aim of achieving her individual aspirations;
(h)maximise the choice and independence of Ms Brown;
(i)facilitate tailored and flexible responses to the individual goals and needs of Ms Brown; and
(j)provide the context for the provision of disability services to Ms Brown.
Credibility and reliability findings
The Applicant
Ms Brown gave evidence over two days. Her evidence was tested by a detailed and probing cross-examination. She was an impressive witness, and no real challenge was made to her evidence save the Agency submitted that there were evidential gaps in her case for the requested supports. It was put, based on the opinion of Dr Gorman and evidence of the current bedroom design, that sunlight was not the cause of Ms Brown’s disturbed rest. It was otherwise put that there was insufficient evidence justifying the kitchen drawers meeting the statutory criteria. The Tribunal found Ms Brown to be a credible and measured witness. It accepts her evidence regarding how sunlight enters her bedroom and how this affects her. Equally, the Tribunal accepts Ms Brown’s evidence about how the drawers operate in her kitchen (given that she already has some of the requested kitchen drawers installed, at her own cost). This was corroborated by Ms Wray’s assessment of the kitchen.
Dr Claridge
Dr Claridge is a medical practitioner with specialist registration in general practice.[24] He initially trained in New Zealand and completed his specialist training in Western Australia. Dr Claridge is a Fellow of the Royal Australian College of General Practitioners. He has 56 patients with ME/CFS under his care, including Ms Brown.[25] Dr Claridge did not give oral evidence. He provided two written opinions dated 9 July 2024[26] and 20 June 2025.[27] His correspondence to the Applicant setting out his expertise includes an element of post-hearing advocacy with respect to Dr Gorman’s expertise, which the Tribunal has disregarded.
[24] See Exhibit 1, A9, p 297; Exhibit 5.
[25] Ibid.
[26] Exhibit 1, A9.
[27] Exhibit 2.
The Agency accepted that Dr Claridge had relevant expertise but submitted that no weight should be given to his written opinion in circumstances where he was not made available for cross-examination. In particular, the Agency submitted that the weight to be attributed to those opinions must be affected by the absence of an opportunity for them to be tested in cross-examination.[28]
[28] Citing Re Kais v Commissioner of Taxation (2021) 173 ALD 605, [19].
In response, Ms Brown advised the Tribunal that Dr Claridge was not made available for cross-examination for financial reasons, including because she is in receipt of a disability support pension (DSP) and the Agency had not agreed to fund his attendance.
There is no rule that dictates the rejection or giving of no weight to evidence which cannot be tested by cross-examination.[29] The Tribunal notes that neither party requested that Dr Claridge be summonsed to appear before the Tribunal. Whilst the Applicant must satisfy the Tribunal that the requested supports meet the legislative requirements for them to be funded,[30] in the Tribunal’s view, fairness did not require that Dr Claridge’s opinion be rejected because he was not available to speak to his written opinions. Ms Brown is a participant of the NDIS and has severe impairments that are attributable to her disability.[31] She has limited financial means. It seems hardly fair that the Agency, which is a corporate Commonwealth entity and has a limited role in these proceedings,[32] could refuse to fund this medical practitioner’s attendance before the Tribunal, and then submit that his evidence should be rejected for that reason. Moreover, the Agency was able to adequately test Dr Claridge’s opinion by way of adducing alternative expert evidence and by making argument about it.
[29] See Polizzi v Commissioner of Police (No 2) [2017] WASC 166, [85]-[87]; see also Re Tarrant and Australian Securities and Investments Commission (2013) 62 AAR 192, [79]-[83].
[30] See Beezley v Repatriation Commission (2015) 68 AAR 23, [68].
[31] See Exhibit 1, T1C,;T3; R2, pp 371-372.
[32] As to which see National Disability Insurance Agency v Davis [2022] FCA 1002, [44].
Dr Gorman
Dr Gorman is a medical practitioner with specialist registration in pain medicine, palliative medicine, and oncology.[33] He trained in New South Wales and is a Fellow of the Royal Australian College of Physicians, Australian College of Legal Medicine, and the Faculty of Pain Medicine of the Australian and New Zealand College of Anaesthetists. He has ‘more than 20 years of experience assessing patients with [ME/CFS] with regard to their diagnosis and treatment’.[34] Dr Gorman provided a desktop assessment of Ms Brown and was questioned on his opinion for almost two hours.[35] Unfortunately, he was not able to give evidence for more than that period.
[33] See Exhibit 1, R2, pp 377-378.
[34] See Exhibit 1, R2, p 369.
[35] See Exhibit 1, R2.
Ms Brown submitted that less weight should be given to Dr Gorman’s evidence because he was not a primary clinician and did not appear to have extensive experience in treating patients with ME/CFS (particularly when compared with Dr Claridge).[36]
[36] See Exhibit 1, A14.
The Agency submitted that Dr Gorman was qualified and had ‘specific practical and scientific knowledge of ME/CFS’, that he made reasonable concessions during his oral evidence including accepting the limits of his expertise, and that he clearly articulated the basis of his reasoning process.
The Tribunal agrees with the Agency’s submission on this issue and has generally preferred Dr Gorman’s evidence to that of Dr Claridge, save where indicated.
Ms Wray
Ms Wray is an occupational therapist. She has a Bachelor of Science (Occupational Therapy) from Curtin University and has been a registered health practitioner since 1993.[37] Ms Wray has been treating the Applicant since September 2020.[38] She provided multiple written assessments and was questioned about her opinion for an hour and a half.[39]
[37] See Exhibit 1, A7, p 275.
[38] See Exhibit 1, A7, p 276.
[39] See Exhibit 1, T1A; T1C; T3;T5; T7; T9; A2; A3; A7; A13.
The Agency submitted that there were ‘serious issues’ with Ms Wray’s evidence, such that it should not be given any weight whatsoever, because:
(a)there was a long-standing therapeutic relationship and admitted advocacy by Ms Wray;
(b)Ms Wray refused to make reasonable concessions, including as to the limits of her expertise; and
(c)there were significant factual discrepancies between Ms Wray’s written reports and her oral evidence.
The Agency accepted that the fact that Ms Wray was the Applicant’s treating allied health professional did not mean that her opinion should necessarily be given less weight.[40] In particular, the Agency referred the Tribunal to the following passage from Ipp J in Bakovic v Rosebridge Nominees Pty Ltd [1999] WASCA 78 (with whom Owen and Steytler JJ agreed):[41]
[22] … It was argued that there was no justification for regarding Dr [A]'s assessment as being less reliable than that of Dr [B] merely "because of his role as a treating psychiatrist".
[23] The basis of this submission was that there should be no factual presumption to the effect that the opinions expressed by the treating psychiatrist (or a treating medical practitioner, in general) are less reliable because of the intimate relationship that sometimes arises between patient and doctor. I accept unreservedly the general proposition that no such presumption exists, and a judicial decision based on such a presumption would be tainted by fundamental error. Each case depends upon its own circumstances. In many instances the opinion of the treating psychiatrist or treating medical practitioner will be more reliable than the opinion of a consultant who has seen the patient only once or twice or three times. Frequently, it will be found that a long-standing relationship between medical practitioner and patient will enable the medical practitioner concerned to express more reliable opinions, having a greater depth of knowledge and understanding of the patient concerned, than some other medical practitioner called in purely for medico-legal or other short-term purposes. On the other hand, it cannot be gainsaid that there will be instances where the close relationship between doctor and patient will result in the medical practitioner being so subjectively influenced that the opinions expressed by him or her will be regarded as less reliable than those expressed by a more objective expert.
[40] See Re Scott and Minister for Immigration and Citizenship [2025] ARTA 997, [102].
[41] See also Re Boyd and Repatriation Commission [2008] AATA 379, [101]-[103], which was less on point.
The Tribunal accepts that Ms Wray did give evidence in a way that was suggestive of the absence of requisite impartiality, and that this potentially rendered her opinion less reliable. For example, the following exchange occurred in cross-examination:
Counsel: So, I suggest to you that light is only a minor issue in the context of all of these other causes of sleep disturbances?
Ms Wray: I think we’ve given really good evidence to show that all of the other sleep disturbances have been impacted. And we’ve also given really good evidence to show that this tiny bit of light that you’re referencing impacts every moment of Mali’s life. It impacts her energy, all of her life functions, being able to do all the things that we take for granted everyday; basics like living skills and having meaning and purpose in life.
(emphasis added)
However, Ms Wray’s opinion needs to be viewed in context. The Tribunal generally accepted the evidence of Ms Brown as to the factual premise of the application. There was also relevant medical evidence before the Tribunal about Ms Brown’s impairments.
An occupational therapist is concerned with promoting health and wellbeing through ‘occupation’, meaning ‘all things that people value for personal or cultural purposes and that serve the purpose of self-care, productivity and leisure’.[42]
[42] Occupational Therapy Board of Australia, ‘Australian occupational therapy competency standards 2018’ (20 February 2018), Glossary.
Occupational therapists are required to be registered under the Health Practitioner Regulation National Law (Western Australia), including possessing relevant tertiary qualifications in occupational therapy and recency of practice requirements. An occupational therapist, amongst other things:
(a)addresses occupational performance and participation of a client, identifying the enablers and barriers to engagement;
(b)performs appropriate information gathering and assessment when identifying a client’s status and functioning, strengths, occupational performance and goals;
(c)collaborates with the client and relevant others to determine the priorities and occupational therapy goals; and
(d)develops a plan with the client and relevant others to meet the identified occupational therapy goals.[43]
The ‘relevant others’ in the above is a reference to other registered health practitioners for the client, including medical practitioners.
[43] Occupational Therapy Board of Australia, ‘Australian occupational therapy competency standards 2018’ (20 February 2018), Standard 3.
For those reasons, Ms Wray’s opinion as to whether the bedroom blinds and the kitchen drawers were reasonable and necessary to address Ms Brown’s impairments was not determinative of the application and needed to be considered against the other evidence before the Tribunal. In that way, it still has some evidential force despite the concerns about Ms Wray’s objectivity and therefore her reliability.
WHETHER THE REQUESTED SUPPORTS ARE NDIS SUPPORTS
Section 10 of the NDIS Act provides:
Supports that are NDIS supports
(1) Subject to subsections (4) and (9), a support is an NDIS support for a person who is a participant or prospective participant if the support is declared by National Disability Insurance Scheme rules made for the purposes of this subsection to be an NDIS support for:
(a) participants or prospective participants generally; or
(b) a class of participants or prospective participants that includes the person.
Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).
…
Supports that are not NDIS supports
(4) The National Disability Insurance Scheme rules may declare that a support is not an NDIS support for:
(a) participants or prospective participants generally; or
(b) a class of participants or prospective participants.
Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).
…
(9) A support is not an NDIS support for a participant or prospective participant if the support consists of the provision of:
(a) sexual services; or
(b) alcohol; or
(c) drugs, the possession of which is a contravention of a law of the Commonwealth, a State or a Territory.
The National Disability Insurance Scheme (Getting the NDIS Back on Track No 1) (NDIS Supports) Transitional Rules 2024 (Cth) (NDIS Supports Transitional Rules) provide:
4 Definitions
(1)In this instrument:
standard item for a participant … means an item that is not modified or adapted to address the functional impairments of the participant …
(2) An expression that is defined for the purposes of the NDIS Act has the same meaning when used in this instrument as it has in that Act.
5 What supports are NDIS supports—general rule
Supports that are NDIS supports unless otherwise provided
(1) For the purposes of subsection 10(1) of the NDIS Act, a support covered by column 2 of an item in the table in clause 1 of Schedule 1 to this instrument is an NDIS support (subject to subsections 10(4) and (9) of the NDIS Act and subsection (2) of this section) for:
(a) participants specified in column 3 of the item who have old framework plans; and
(b) prospective participants specified in column 3 of the item, other than prospective participants who, if they were participants, would be required to be given notice under subsection 32B(2) of the NDIS Act (participants that are to have new framework plans).
Note 1: Subsection 10(4) of the NDIS Act allows supports to be declared to not be NDIS supports for participants or prospective participants. Those supports are declared under subsection (2) of this section.
Note 2: Subsection 10(9) of the NDIS Act provides that a support is not an NDIS support for a participant or prospective participant if the support consists of the provision of:
(a) sexual services; or
(b) alcohol; or
(c) drugs, the possession of which is a contravention of a law of the Commonwealth, a State or a Territory.
Supports that generally are not NDIS supports
(2) For the purposes of subsection 10(4) of the NDIS Act, a support covered by column 2 of an item in the table in clause 1 of Schedule 2 to this instrument is not an NDIS support for any participant (subject to subsection 10(6) of the NDIS Act) or prospective participant.
Note 1: Subsection 10(6) of the NDIS Act allows the CEO, on application by a participant, to determine that a support is taken to not be declared under subsection 10(4) of that Act in relation to the participant if, among other things, the CEO is satisfied that the support would replace one or more other supports that are NDIS supports for the participant.
Note 2: Determinations under subsection 10(6) of the NDIS Act are referred to in this instrument as replacement support determinations. For additional rules about replacement support determinations, see section 7 of this instrument.
Interpretive provision
(3) A reference in this section to a provision of section 10 of the NDIS Act is a reference to the provision as modified (if at all) by item 124 of the amending Act.
Note: That item provides that, until the first National Disability Insurance Scheme rules are made for the purposes of subsection 10(1) of the NDIS Act, section 10 of that Act has effect as if a reference in that section to the National Disability Insurance Scheme rules were a reference to rules made under item 138 of Schedule 1 to the amending Act.
Schedule 1—Supports that are NDIS supports unless otherwise provided
Note: See subsection 5(1)
1 Supports that are NDIS supports unless otherwise provided
The following table sets out supports that are NDIS supports for participants and prospective participants (subject to subsections 10(4) and (9) of the NDIS Act and subsection 5(2) of this instrument):
Supports that are NDIS supports unless otherwise provided Column 1 Column 2 Column 3 Item Category Supports Participants and prospective participants 8 Assistive products for household tasks The provision of assistive products that support a participant to carry out domestic and everyday actions and tasks within a participant’s home.
This includes the following:
(a) assistive products for the preparation of food and drink;
(b) assistive products to facilitate house cleaning, gardening or laundry;
(c) additional costs to upgrade or modify standard household items to household items that include accessibility features that address a participant’s support needs;
…Participants or prospective participants generally 9 Assistive products for personal care and safety Provision of assistive products for self‑care activities and participation in self‑care.
This includes the following:
….
(f) furniture and other products that are adapted or specifically made to be placed in or added to a participant’s home (including indoor and outdoor areas) to help with movement, positioning and other safety needs, including entry and exit of the environment;Participants or prospective participants generally 22 Home modification design and construction Supports that design, change or modify a participant’s home to help the participant live as independently as possible and to live safely at home.
This includes the following:
(a) installing equipment or changing a building’s structure, fixture or fittings;
(b) internal and external building modifications to remedy damage arising exclusively from disability‑related behaviours or use of NDIS funded assistive technology or equipment;
(c) regulatory certification requirements for works.Participants who have the support stated in their plan and prospective participants that are likely to have this support stated in their plan 23 Household tasks Supports that provide assistance with essential household tasks that a participant is not able to do themselves because of their disability.
This includes the following:
(a) meal preparation and delivery;
(b) house or yard maintenance;
(c) cleaning and laundry.Participants or prospective participants generally Schedule 2—Supports that generally are not NDIS supports
Note: See subsection 5(2)
1 Supports that generally are not NDIS supports
The following table sets out supports that are not NDIS supports for:
(a) a participant (unless a replacement support determination covering the support is in force for the participant); or
(b) a prospective participant.
Supports that generally are not NDIS supports Column 1 Column 2 Item Category Supports 1 Day‑to‑day living costs—accommodation and household The following:
…
(e) standard home repairs, home improvements, standard renovations and maintenance;
…
(i) standard household (including garden) items, appliances, tools and products;
(j) standard furniture, fixtures or fittings.The principles relating to the interpretation of subordinate legislation are well-settled. They were summarised by the High Court in Disorganized Developments Pty Ltd v South Australia (2023) 97 ALJR 575, at [14]-[15], with the following propositions:
(a)‘The general principles relating to the interpretation of primary legislation are equally applicable to the interpretation of subordinate legislation.’
(b)The task of construing regulations or rules involves ‘attributing legal meaning to the legislative text, read in context: expounding the meaning of the text and not seeking “to remedy perceived legislative inattention”.’
(c)‘A purposive approach to the interpretative task is required.’
(d)‘Any meaning must be consistent with the language in fact used’ and the court/tribunal ‘may not rewrite legislation in light of its purposes.’
In SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, Gageler J (as the Chief Justice then was) described the task as one involving ‘constructional choice’ between the competing meanings that may be available ([38]).[44]
[44] See also Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531, 557 [66].
In Cooper v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2023] FCA 1158, Colvin J observed that ‘the constructional task does not involve singular focus upon particular words or phrases isolated from an understanding of their immediate and wider context. Legislative instruments speak as a whole’ ([45]).
The premise of the Agency’s case was that the requested supports are not ‘NDIS Supports’ because they fall within the ‘day-to-day living costs – accommodation and household’ item in Cl 1 to Sch 2 to the NDIS Supports Transitional Rules.
Heavy reliance was placed on the process of reasoning identified by Senior Member French in Re FSWN and National Disability Insurance Agency [2025] ARTA 114 at [43]-[45], as follows:
[43] Having regard to the provisions of the principal Act as amended, the Transitional Rules, and the Supports Rules, the structure of the enquiry involved in this review involves two stages and the following steps:
Stage 1 Ascertain if the requested support is an “NDIS” Support as defined. This inquiry is focused on the support, not the participant.
Step 1: Determine if the requested support is of a character that falls within the scope of a category of support specified in column 1 of the Table to Schedule 2 of the Transitional Rules by reference to the description of supports that fall within the scope of that category contained in column 2 of the Table.
If the answer to that question is “yes”, then stage 1 is complete. The requested support is not a NDIS Support and cannot be approved for inclusion in a SoPS because of s 34(1)(f) (subject to a replacement support determination being made, as to which see following).
If the answer to that question is “no”, then proceed to step 2 of stage 1:
Step 2: Determine if the requested support is of a character capable of falling within the scope of a category of support specified in column 1 of the Table to Schedule 1 of the Transitional Rules by reference to the description of supports that can fall within the scope of that category contained in column 2 of that Table.
If the answer to that question is “no”, then the requested support will not be a NDIS Support and cannot be approved for including in a SoPS because of s 34(1)(f).
If the answer to that question is “yes”, then the requested support will be a NDIS Support that is capable of being approved for inclusion in a SoPS by operation of s 34(1)(f), and stage 2 of the enquiry is reached.
Stage 2: Ascertain if the requested support satisfies each of the other criteria specified in s 34(1)(aa) to (e) and the associated Supports Rules. There is some overlap of the stage 1 and 2 enquiries. However, in my opinion stage 2 is primarily a participant focused enquiry. That is, it seeks to establish the benefit of the support to the participant. To the extent that stage 2 also requires examination of the efficacy of the support per se it adds nothing to the outcome of the stage 1 enquiry in my opinion.
[44] The question of whether a requested support is, or is not, a NDIS support is a mixed question of fact and law. The issue of fact to be determined is whether the requested support falls within a category of items specified in column 1 of the Tables to Schedules 1 and 2 of the Transitional Rules. If it does, it will either be, or not be, a NDIS support by operation of law.
[45] It is important to observe that in the scheme of the Transitional Rules it is not sufficient to find that a support is not excluded as a NDIS Support by operation Schedule 2. It must also be found to be included as a NDIS Support by Schedule 1. That is, both Schedules have work to do in determining what is not a NDIS Support. To illustrate this point using absurd examples, a giraffe, hot-air balloon, and space craft are not excluded as NDIS supports by Schedule 2, but they are incapable of falling into any of the categories of NDIS Supports in Schedule 1. They are therefore not NDIS Supports by operation of Schedule 1, rather than Schedule 2.
(emphasis added)
I respectfully agree with the general logic of the approach identified in FWSN and note that this has been consistently followed by other members of the Tribunal.[45]
[45] See e.g. Re Butler and National Disability Insurance Agency [2025] ARTA 1579, [61]-[64].
However, and with great respect, I do not agree that the proper construction of the schedules to the NDIS Supports Transitional Rules is as binary as this approach suggests, and that the Tribunal’s task is to be entirely divorced from an inquiry of why the particular support is sought to be funded, including whether the requested support is adapted or made in a way which addresses the individual needs of the participant. This constructional difficulty arises in this matter because the requested supports in this case arguably fall both within the limbs of items of Sch 1 and Sch 2 to the NDIS Supports Transitional Rules, quoted above.
As the Full Court recently observed in National Disability Insurance Agency v Warwick [2025] FCAFC 100 in the context of the Support Rules, the overall legislative context matters. The place of the Support Rules (and, for that matter, the NDIS Supports Transitional Rules) in relation to the decision to be made by the Tribunal is found in s 34(2) and 35 of the NDIS Act ([49]). In that matter, the Full Court said the following in respect of the Agency’s construction of ‘day-to-day’ in r 5.1(d) of the Support Rules:
[65] What can be said, though, is that in construing the phrase as a whole, each term in it should have work to do. For that reason, we do not accept that it serves as a threshold requirement which excludes any support that relates to a cost of the necessities of living. The construction put by the Agency would have that effect. The problem with it is that to say that r 5.1(d) excludes costs of a type that all people incur, regardless of whether they have a disability, is to make the term 'day-to-day' redundant. The Agency's construction would exclude all costs that are for the purpose of living (that is, not discretionary, or for luxuries), as it follows they are likely to be of a type incurred by all or the majority of persons. That encompasses all living costs; 'day‑to‑day' would add nothing.
[66] However, what the term 'day-to-day' does add, on its ordinary meaning, is an element of regularity or routine. We accept that it would be unduly restrictive (and simply wrong) to equate 'day-to-day' with 'daily' or 'every day' (the latter being different to 'everyday', a term the primary judge did employ). But all the examples given in r 5.1(d) itself - rent, groceries and utility fees - are not only necessary for living, but are paid or incurred frequently or at regular intervals. That conspicuous feature of the examples confirms that one-off, remarkable, unforeseen, infrequent or extraordinary costs will not be excluded by the rule, even if they are costs that all or the majority of persons incur for the purposes of living.
The same observations could be said for a strict and purely objective construction of the phrases used in Item 1 to Cl 1 of Sch 2 to the NDIS Supports Transitional Rules, divorced from the disability-related needs of the participant.
The Agency argued in this matter that the bedroom blinds are ‘home improvements’ and/or ‘standard fixtures and fittings’ within the meaning of Cl 1, Item 1, of Sch 2 to the NDIS Supports Transitional Rules because:
(a) Blockout blinds are regularly obtained by Australians to improve their homes and to block out excess sunlight for reasons unrelated to a disability. As such, blockout blinds are of themselves a standard fixture, fitting or home improvement, as opposed to blinds that have been modified or adapted.
(b) The additional features of the blockout blinds (i.e. fit to frame and motorised), when compared with blinds generally, do not constitute specific modifications or adaptions to a standard fixture or fitting for the purpose of addressing the Participant’s functional impairments.
(c) In the absence of any specific modifications or adaptions to address the Participant’s functional impairments, the Tribunal should be satisfied that the proposed blinds are a not NDIS Supports pursuant to the Transitional Rules, and accordingly, not an NDIS support for the purposes of s 34(1)(f) of the NDIS Act.[46]
[46] RSFIC, [22].
The Agency made a similar argument with respect to the kitchen drawers, arguing that:
(a) Pull out drawers are a common installation in the kitchens of many Australians, regardless of any disability related support needs.
(b) The requested drawers’ capacity to bear weight is not a disability-specific modification or feature for kitchen drawers. Kitchen drawers, found in most homes, all have capacity to bear varying amounts of weight. The Agency contends that it is open for the Tribunal to find that it is reasonable to expect that many standard pull out drawers would be capable of bearing the weight of a person leaning on them for short periods. The evidence before the Tribunal does not establish that the requested drawers exceed this reasonable expectation.
(c) Without further necessary modifications or adaptions to address the Participant’s support needs related to her disability, the Tribunal should be satisfied that the proposed drawers are a standard fixture or fitting for the purposes of the Transitional Rules, and accordingly, are not an NDIS support for the purposes of s 34(1)(f) of the NDIS Act.
These arguments rely heavily on the term ‘standard item’ in r 4 to the NDIS Supports Transitional Rules, which is defined to mean ‘an item that is not modified or adapted to address the functional impairments of the participant.’
I note that the word ‘standard’ ordinarily denotes an ‘ordinary procedure, or quality, or design (of a product), without added or novel features.’[47] I consider that this ordinary meaning accords with the legislative context of the NDIS Supports Transitional Rules. The question is whether the requested item has additional or novel features which address the functional impairments of the participant. It is not whether the item is specifically modified or adapted for that singular purpose.
[47] The Australian Pocket Oxford Dictionary (5th Edn, 2002, Oxford University Press) (Australian Oxford Dictionary), p 1077. See also Macquarie Dictionary (Online) (Pan Macmillan Australia, 2025), definitions 7, 22, 24.
The Tribunal notes the verb ‘modified’ is the past tense of ‘modify’, meaning to ‘make partial changes in/to (something).’[48]
[48] Australian Oxford Dictionary, p 696. See also Macquarie Dictionary (Online) (Pan Macmillan Australia, 2025), definition 1.
Similarly, the verb ‘adapted’ is the past tense of ‘adapt’, to ‘make (something) suitable for a new use or purpose; modify’.[49]
[49] Australian Oxford Dictionary, p 12. See also Macquarie Dictionary (Online) (Pan Macmillan Australia, 2025), definition 1.
The Tribunal does not accept that each of the phrases in item 1 to Cl 1 of Sch 2, being ‘day-to-day living costs’ and, specifically, ‘home improvements’ or ‘standard furniture, fixtures or fittings’ mean that an item of that kind, which may have distinct features relevant to a participant’s impairments but are not themselves specifically modified or adapted for that sole purpose, are to be excluded. Rather, consideration must be given to the nature of the requested support and whether it has additional or novel features that ‘modify’ or ‘adapt’ it from the norm, in a way which is relevant to the participant’s impairments. Those added features need not be crafted exclusively for those impairments. For example, it would not be reasonably disputed that a ‘grab rail’ or ‘support bar’ are ‘day-to-day’ items used by persons with or without disability. However, on the Agency’s construction, these generally supportive items could never be funded under the NDIS as they were not crafted exclusively for the disabilities that they may support.
The question of whether something is modified or adapted to address the functional impairments of the participant needs to be considered in the context of the statutory criteria set out in s 34 of the NDIS Act, including whether the requested thing is necessary to address the needs of the participant arising from an impairment in relation to which they were granted access to the Scheme.
I note that General Member Heron took a similar approach in Re Hyde and National Disability Insurance Agency [2025] ARTA 365 at [46]-[55], albeit with different reasons, and that the decision is presently before the Guidance and Appeals Panel of this Tribunal (GAP).[50] Whilst the Agency submitted that the Tribunal should treat this decision with some caution, neither party sought the matter be held in abeyance pending the outcome of the review before the GAP.
[50] Re National Disability Insurance Agency and Hyde (Administrative Review Tribunal, 2025-002-240, commenced 23 June 2025); see also Re Hyde and CEO, National Disability Insurance Agency (Guidance and Appeals Panel) [2025] ARTA 1242, [7], [25]; See also Re QGRY and National Disability Insurance Agency [2025] ARTA 595, [241]-[251].
Further to the above, the Tribunal does not accept that the ‘blockout’ or ‘motorised’ features of the requested bedroom blinds are ‘standard’. In the Tribunal’s opinion, both the blackout element (including the specific fabric and that they are fit to the window by the manufacturer), and the motorised element, make the blinds modified or adapted for the Applicant’s impairments (and depart from the norm). Similarly, the Tribunal accepts that the requested kitchen drawers have novel features, including that they are rated to 65kg. Ms Brown weighs less than that figure, and this is a modification which is addressed to her mobility impairments because they can carry her weight.
In other words, the Tribunal considers that the requested supports are more consistent with them falling within the categories of supports identified in Sch 1 to the NDIS Supports Transitional Rules, rather than those in Sch 2.
WHETHER THE REQUESTED SUPPORTS ARE REASONABLE AND NECESSARY
The concept of a ‘reasonable and necessary support’ is not confined to s 34 of the NDIS Act, and the Tribunal is required to reach a positive state of satisfaction as to each of the criteria specified in s 34(1) of the NDIS Act. [51]
Section 34(1)(aa) – the support is necessary to address needs of the participant from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements
[51] See Public Trustee (SA) (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) (2023) 182 ALD 259, [17]-[24].
Ms Brown gained access to the WA NDIS Scheme in 2018, under the early intervention requirements and based on her diagnosis of ME/CFS (which is a neurological impairment).[52]
[52] See Exhibit 3, p 1.
Ms Brown’s ME/CFS results in substantially reduced functional capacity to undertake self-care[53] and mobility.[54]
[53] See Exhibit 1, T3, pp 51-67; A9, p 299.
[54] See Exhibit 1, T10, pp 82-83.
The requested bedroom blinds and kitchen drawers are sought to address Ms Brown’s symptoms of debilitating fatigue, PEM, sleep disturbance, orthostatic intolerance and autonomic dysfunction, and heightened sensory sensitivity to light. Because Ms Brown spends most of the day lying down, she has limited muscle strength. The Tribunal was told that she was unable to exert the strength necessary to open/close her present bedroom curtains, which are operated by a single drawstring.[55]
[55] See Exhibit 1, A3, pp 229, 239.
It was Ms Brown’s evidence, supported by Ms Wray’s in-person assessment of Ms Brown’s home on 29 February 2024, that light continues to enter the bedroom despite her present ‘heavy full length blackout curtains with a pelmet’ being closed.[56]
[56] See Exhibit 1, A3, pp 229-230.
Dr Gorman did not think that Ms Brown’s disturbed sleep was a consequence of her photophobia (rather this was more likely to be caused by her chronic fatigue and MDD) and he did not consider that there was any need for absolute darkness in the bedroom.[57] The primary thrust of his opinion was that the focus for Ms Brown should be on returning to a ‘more normal diurnal rhythm’ and to try and desensitise her to light exposure.[58] Dr Gorman fairly conceded that if the present bedroom blinds could not be opened during the day by Ms Brown, then ‘she needs something different.’
[57] See Exhibit 1, R2, p 370.
[58] See Exhibit 1, R2, p 372.
Dr Claridge indicates in Exhibit 2 that:
One of the most significant challenges in [Ms Brown’s] care has been managing her severely disrupted sleep caused by MECFS. She has an impaired circadian rhythm. This is a common symptom of MECFS.
Ms Brown currently experiences a delayed sleep-wake cycle, typically sleeping from approximately 11:00PM to 11:00 AM, with significant dysania (1–2 hours of functional impairment upon waking). This pattern has proven resistant to change, despite comprehensive and multidisciplinary treatment attempts across all reasonable domains. If her sleep is disturbed it has significant impacts on her fatigue levels.
Her biggest issue is the impact of sunlight into her room. Sunlight disturbs her sleep cycle.
Her request for block out blinds for her room is to allow her to have the most restorative sleep. For more than half of the [year’s] sunlight begins 630 am or earlier. In the peak of summer first light is as early as 450 am. The early light intrusion into her room has been very hard to find a method to stop it affecting her sleep
Block out blinds will [assist] to eliminate one of the consistent environmental factors that causes disruption of her sleep pattern.
[List of sleep interventions]
Despite thorough and repeated trials of evidence-based sleep interventions—including pharmacological, environmental, and [behavioural] strategies—no approach has succeeded in shifting Mali’s sleep to a standard diurnal pattern. Some measures have helped reduce awakenings or improve comfort, but any attempt to force rhythm change has caused severe deterioration due to ME/CFS. Current sleep-wake timing remains resistant to modification due to the severity of illness. This persistent circadian misalignment is consistent with the neurological and autonomic dysfunction seen in severe ME/CFS. Given the nature of ME/CFS and the severity of her condition, her current circadian pattern should be considered a fixed feature of her permanent disability.
This letter may serve as a formal record that all reasonable interventions to return Mali to normal diurnal rhythm have been [tried] and exhausted.
All successful pharmacological, behavioural and environmental interventions are being undertaken to manage Mali’s severe sleep dysfunction.
One area of improvement remains possible, Further environmental support: The installation of flush-mounted blackout blinds, is expected to reduce light-related awakenings and improve sleep continuity within the natural rhythm her disability permits.[59]
(emphasis removed)
[59] Exhibit 2.
The requested drawers are quoted to be installed by Easy Access Kitchens and are designed by a company called ‘Blum’.[60] They are specifically designed to hold up to 65kg of weight, which the Tribunal accepts is a departure from the norm. They also pull out of the cupboard entirely so that Ms Brown is not forced to bend to access them.
[60] See Exhibit 1, T4, p 68; see also A15.
The kitchen drawers were put as being reasonable and necessary on the basis that:
Orthostatic intolerance restricts being able to maintain an upright posture and bending forward without extremely high risk of fainting and falls, causing bodily harm. As [Ms Brown] lives alone the risks of falling, being injured and/or left unconscious are very high.
Extreme fatigue and exercise tolerance reduces mobility capacity.
…
Pull out drawers will reduce the need to bend forward, down and/or reach into deep cupboards. The quoted items are reinforced to withstand being leant on, reducing falls risks.
The drawers will provide [Ms Brown] with the opportunity to prepare light meals, snacks for herself when she does not have a support worker present.
Maximising independence in this way will reduce the need for further support hours while also providing [Ms Brown] an opportunity to exert control, self-efficacy and meaningfulness in her life.
The drawers will allow more storage of items that can more easily accessed by [Ms Brown] such as craft or other leisure items which will be motivating for her.[61]
[61] Exhibit 1, A5, pp 260, 262.
…
Personal Supports for meals – [Ms Brown] currently has 1:1 support to assist with meal preparation. At this time the support will prepare a meal which she can use for the week e.g. soup, stews, curries. It is unreasonable for [Ms Brown] to only eat this one type of meal.
There are occasions when a support person is unavailable due to illness. This means that [Ms Brown] is potentially left with no food. As [Ms Brown] has no informal support in Perth, she also needs to be able to prepare some food for herself.
[Ms Brown] wants to prepare her own light meals, snacks, breakfasts and lunch to maintain her independence in meal preparation. The limited capacity she has to perform these tasks is declining and she therefore needs assistance by optimising her environment.
Impact of [Ms Brown’s] Disability on self-management /cooking (preparing a meal/snack for herself, achieving adequate nutritional intake and maintaining capacity). [Ms Brown] is able to prepare a light snack and small meals such as boiling an egg, making a sandwich, preparing simple pasta or rice dishes.
● To do this [Ms Brown] needs to use energy conservation strategies such as lightweight equipment (where possible) and breaking the task down into smaller steps with rest breaks in between.
● Due to [Ms Brown]’s cognitive fatigue her higher executive functioning skills of organization and regulation are reduced when the environment is cluttered, and disorganised. These environments increase the need to use visual processing, decision making, depth perception, attention, planning, sequencing, problem-solving, working memory, selecting relevant sensory information.
[Ms Brown] benefits from organised work spaces, colour coding, see through jars, labelling, keeping pairs together e.g. pots and pans.
The storage areas for pantry items and cooking pots in [Ms Brown]’s kitchen poses a safety risk and impacts her PEM fatigue management.
[Ms Brown]’s kitchen set up requires her to bend down under the island bench or reach into pantry cupboards. The storage of saucepans and pots are stacked on top of each other requiring additional lifting and bending than is needed. The pantry items extend deep into the cupboard, and are stacked on top of each other which increases the need to remain in a forward flexed position and use cognition to locate items.
RECOMMENDATIONS
Consumables /low cost & low-risk AT
[Ms Brown] would benefit from adaptation of the storage below her kitchen island bench, in existing shelves at the oven, sink and the pantry. This will enable easier access, minimising bending, reaching and carrying with a load. And also reduce cognitive loading by reducing the need to search for items. Organisation of these areas will also make it easier for storage of items to be systemised for use by the many different support workers that [Ms Brown] has. It is important that items are stored in the same place.[62]
[62] See Exhibit 1, T7, pp 73-74. See also Exhibit 1, A2, pp 220-223.
Dr Gorman indicated that his written report was prefaced on the fact that Ms Brown prepares simple meals, and that the proper organisation of her kitchen would likely be sufficient for that purpose. However, he fairly indicated that:
Tribunal: As I understand it, Ms Brown seeks additional drawers in her cupboards, which is the photo at the bottom of Joint Hearing Bundle p 222, and in the pantry. And the goal is so that she's able to access items there without needing the support workers.
Dr Gorman: Well, I don't, you know, apart from saying that, you know, on occasions if one's deconditioned and spending most of the time in bed, you will feel somewhat dizzy bending down. I don't think I can add very much or add an expert medical opinion to that. It looks like a fairly well organised kitchen to me and it looks as though she prepares quite complicated meals to be quite honest and must be able to stand up for a long period during the day. So, I can't add any medical expertise to help you with that issue.
Tribunal: As I understand it, doctor, she has support workers that do a lot of the heavy lifting, and Miss Brown, for example, will steam her veggies that have already been cut for her by the support workers. And the support workers, for example, will do batch cooking on the Saturday or the Sunday that Ms Brown will zhuzh up a little bit to eat during the week.
Dr Gorman: Right.
The Tribunal is satisfied that the requested supports are necessary to address Ms Brown’s mobility and self-care needs which directly arise from her ME/CFS, for which she gained access to the NDIS. They are related to Ms Brown’s disability for the purposes of r 5.1(b) of the Support Rules and are not ‘day-to-day’ living costs within the meaning of r 5.1(d) of those Rules.
Section 34(1)(a) – the support will assist the participant to pursue their stated goals, objectives and aspirations
Ms Brown’s stated short-term goals include maintaining her independence in her daily life and she intends to access equipment to maintain that independence.[63] She told the Tribunal that her dysania and cognitive difficulties upon waking mean that she is understandably not comfortable with having support workers in her home in the early hours of the morning (even if they were consistently available, which they are reportedly not). She gave powerful evidence about how she likes to make herself a coffee in the morning and that there is occasion where, after preparing that drink in the kitchen, she unfortunately does not have the energy to drink it upon returning to the bedroom because of the energy exertion required in the kitchen.
[63] See Exhibit 6, p 5.
The requested supports will assist Ms Brown to rest when this is required and to prepare her own small meals and drinks. These things are essential to Ms Brown’s independence.
Section 34(1)(b) – the support will assist the participant to undertake activities, so as to facilitate social and economic participation
The requested supports go to Ms Brown’s rest and sustenance. They are necessary preconditions to any social and economic participation. This requirement is met.
Section 34(1)(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
Rule 3.1 of the Support Rules provides that:
In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d) for supports that involve the provision of equipment or modifications:
(i) the comparative cost of purchasing or leasing the equipment or modifications; and
(ii) whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
The Agency contended, based on the evidence of Dr Gorman, that the bedroom blinds were not ‘value for money’ because the focus should be on ‘returning’ Ms Brown to a standard diurnal rhythm and de-sensitising her to light.[64]
[64] RSFIC, [19(a)].
As set out at paragraph [66] above, concerted efforts have been made to try and improve Ms Brown’s circadian rhythm. These have proved ineffective, and an impaired body clock is a common feature of ME/CFS. The Tribunal does not accept that going to sleep between 10 and 11pm is unduly problematic, or that Ms Brown should, in effect, be penalised in terms of her available NDIS supports because of that impaired body clock. The evidence is that she is in bed for approximately 14 hours a day.[65] She requires rest during the day if she is in a PEM crash. The Tribunal was told that Ms Brown had tried several different face/eye masks to limit light exposure, but these did not work because of pressure and thermoregulation issues.[66] Ms Brown uses sunglasses outdoors.[67] Ms Wray’s report dated 29 February 2024 sets out why there are not comparable supports which would achieve the same outcome at a substantially lower cost (namely Velcro curtains, external shutters and manually-placed blackout blinds).[68] The Tribunal considers the quote provided for the bedroom blinds to be reasonable. It also considers that the evidence before the Tribunal demonstrates that the bedroom blinds are likely to substantially improve the quality of Ms Brown’s rest and that this will provide long-term benefit to Ms Brown. This support will also cost less than funding a support worker to open and close any manually drawn curtains. It follows that the requested bedroom blinds will increase Ms Brown’s independence and reduce her reliance on support workers.
[65] See Exhibit 1, A7, p 277.
[66] See Exhibit 1, A3, pp 230-231.
[67] See Exhibit 1, A7, p 287.
[68] See Exhibit 1, A3, pp 231-232.
It was put that the kitchen drawers were not value for money because there was available support worker assistance, Ms Brown’s kitchen is ‘sufficient’ for her to complete minor cooking tasks, and an alternative (and cheaper) solution would be re-arranging where things are stored in the kitchen.[69]
[69] RSFIC, [30].
Ms Brown does have support worker assistance to prepare meals. However, she needs to be able to prepare some food for herself, including re-heating the meals batch-prepared by those support workers. The assessment made by Ms Wray was that:
The storage areas in [Ms Brown’s] kitchen pose a safety risk as she is required to bend down, reach forward and twist to reach items in the pantry and under bench cupboards. The immediate impact risk is fainting and symptoms of orthostatic intolerance.
● Heavy saucepans /equipment - are stored under the island bench and corner cupboard. These are only used by support workers as [Ms Brown] does not have the strength or energy to lift and carry them.
● Small saucepans and pots are stacked on top of each other and in a cupboard below waist height requiring additional lifting and bending than is tolerated.
● Pantry items extend deep into the cupboard, and are stacked on top of each other which increases the need to remain in a forward flexed position and use cognition to locate items.
[Ms Brown] lives in a small unit with minimal storage space so the kitchen is the primary storage space. Having more accessible storage for all her everyday items will be invaluable to her. E.g. craft, hobbies and leisure items.
Bench Tops: All Kitchen bench tops areas are used and provide no further space for storage of cooking items.
[Photograph of the small kitchen]
Pantry: Some pull out drawers have been installed in the pantry. These drawers extend fully out and are high grade which means that if she leans on them for balance they will not break.
3 middle shelves are pullout drawers.
A further pull out drawer is required above these as there are items stacked behind and on top of each other. This shelf is where [Ms Brown] stores her medication at the front but it prevents her from accessing items behind them.
The top two shelves are fixed and not accessed by [Ms Brown] as she is unable to reach that height.
[Picture of the pantry].
Therapist demonstration of body positioning to access pantry items when no pull out drawer is available compared with when pull out drawer is used. The angle required to bend head down in this way increases likelihood of fainting.
[Picture of lower cupboard 1]
This cupboard is used for storage containers and salad bowls which are stacked on top of each other and are disorganised. Having 2 pull out drawers here means that items can be stored in a single layer and she will be able to store other things in this cupboard such as for her hobbies. [Ms Brown] needs to be able to access these items without risk of fainting.
[Picture of lower cupboard 2]
Storage of Pots and Pans that [Ms Brown] uses.
[Ms Brown] uses the small pots and fry pans located in the top two shelves. The installation of 2 x pull out drawers will mean that she is able to store lids in one layer (not on top of each other) and the pots and pans on another layer. The bottom shelf is accessed by support workers with larger pots and pans for cooking meals.
7. Summary of Assessment
[Ms Brown] is currently only able to meet her nutritional and hydration needs with risk of fainting and exacerbation of PEE/PEM. Modifying her environment with pull out drawers as described below will enable her to maintain independence safely and also to enjoy the benefits that come from attending to one’s own daily living needs where possible.[70]
[70] Exhibit 1, A2, pp 220-223.
The Tribunal agrees with that assessment. Relevant to r 3.1 of the Support Rules, there are not comparable supports which would achieve the same outcome at a substantially lower cost. The quote provided is eminently reasonable. The Tribunal considers that the kitchen drawers will substantially improve Ms Brown’s outcomes and provide her with long-term benefits, reducing reliance on support worker assistance.
The requested supports are value for money.
Section 34(1)(d) – the support will be or is likely to be effective and beneficial for the participant, having regard to current good practice
Rules 3.2 and 3.3 of the Support Rules provides that:
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
The NICE Guideline indicates that:
1.11 Managing ME/CFS
1.11.1 Be aware that ME/CFS symptoms can be managed but there is currently no cure (non-pharmacological or pharmacological) for ME/CFS.
Energy management
1.11.2 Discuss with people with ME/CFS the principles of energy management, the potential benefits and risks and what they should expect. Explain that it:
·is not curative
·is a self-management strategy led by the person themselves with support from a healthcare professional in an ME/CFS specialist team
·includes all types of activity (cognitive, physical, emotional and social) and takes into account overall level of activity
·helps people learn to use the amount of energy they have while reducing their risk of post-exertional malaise or worsening their symptoms by exceeding their limits
·recognises that each person has a different and fluctuating energy limit and they are experts in judging their own limits
·can include help from a healthcare professional to recognise when they are approaching their limit (children and young people in particular may find it harder to judge their limits and can overreach them)
·uses a flexible, tailored approach so that activity is never automatically increased but is maintained or adjusted (upwards after a period of stability or downwards when symptoms are worse)
·is a long-term approach − it can take weeks, months or sometimes even years to reach stabilisation or to increase tolerance or activity.
1.11.3 Help people with ME/CFS develop a plan for energy management as part of their care and support plan. Support them to establish realistic expectations and develop goals that are meaningful to them. Discuss and record the following in the plan along with anything else that is important to the person:
·cognitive activity
·mobility and other physical activity
·ability to undertake activities of daily living
·psychological, emotional and social demands, including family and sexual relationships
·rest and relaxation (both quality and duration)
·sleep quality and duration
·effect of environmental factors, including sensory stimulation.
1.11.4 Work with the person to establish an individual activity pattern within their current energy limits that minimises their symptoms. For example:
·agree a sustainable level of activity as the first step, which may mean reducing activity
·plan periods of rest and activity, and incorporate the need for pre-emptive rest
·alternate and vary between different types of activity and break activities into small chunks.
…
1.12 Symptom management for people with ME/CFS
Rest and sleep
1.12.1 Advise people with ME/CFS:
·about the role of rest in ME/CFS
·that rest periods are part of all management strategies for ME/CFS
·how to introduce rest periods into their daily routine, including how often and for how long, as appropriate for each person
·that relaxation techniques at the beginning of each rest period could be helpful.
1.12.2 Give people with ME/CFS personalised sleep management advice that includes:
·explaining the role and effect of sleep disturbance in ME/CFS
·identifying the common changes in sleep patterns seen in ME/CFS (such as broken or shallow sleep, altered sleep pattern or hypersomnia)
·developing good sleep habits
·taking into account the need for rest in the day, and balancing this against how the person is sleeping at night
·introducing changes to sleep patterns gradually.
1.12.3 If sleep management strategies do not improve the person's sleep and rest, think about the possibility of an underlying sleep disorder or dysfunction and whether to refer to an appropriate specialist.
1.12.4 Review the use of rest periods and sleep management strategies regularly as part of the person's care and support plan.
Physical functioning and mobility
1.12.5 Include strategies to maintain and prevent deterioration of physical functioning and mobility in the care and support plans of people with ME/CFS. These strategies may need to be carried out in small amounts and spread out throughout the day. Think about including the following:
·joint mobility
·muscle flexibility
·balance
·postural and positional support
·muscle function
·bone health
·cardiovascular health.
…
Orthostatic intolerance
1.12.9 Be aware that people with ME/CFS may experience orthostatic intolerance, including postural orthostatic tachycardia syndrome (POTS).
1.12.10 Medicine for orthostatic intolerance in people with ME/CFS should only be prescribed or overseen by a healthcare professional with expertise in orthostatic intolerance.
1.12.11 Refer people with orthostatic intolerance to secondary care if their symptoms are severe or worsening, or there are concerns that another condition may be the cause.
…
Dietary management and strategies
1.12.19 Emphasise to people with ME/CFS the importance of adequate fluid intake and a well-balanced diet according to the NHS eat well guide.
…
1.17 Care for people with severe or very severe ME/CFS
This section supplements the rest of the guideline with additional considerations for people with severe or very severe ME/CFS.
Awareness of severe and very severe ME/CFS and its impact
1.17.1 Be aware that people with severe or very severe ME/CFS may experience the following symptoms that significantly affect their lives, including their mobility, emotional wellbeing and ability to interact with others and care for themselves:
…
·hypersensitivity to light, sound, touch, movement, temperature extremes and smells
·extreme weakness, with severely reduced movement
…
·cognitive difficulties that limit the person's ability to communicate and take in written or verbal communication
·sleep disturbance such as unrefreshing sleep, hypersomnia and altered sleep pattern
…
·orthostatic intolerance and autonomic dysfunction, such as postural orthostatic tachycardia syndrome (POTS) and postural hypotension.
1.17.2 Recognise that symptoms of severe or very severe ME/CFS may mean that people:
·need a low-stimulus environment, for example a dark quiet room with interaction at a level of their choice (this may be little or no social interaction)
·are housebound or bedbound and may need support with all activities of daily living, including aids and adaptations to assist mobility and independence in activities of daily living (for example, a wheelchair)
·need careful physical contact when supported with activities of daily living, taking into account possible sensitivity to touch
·cannot communicate without support and may need to choose someone to be their advocate and communicate for them
·are unable to eat and digest food easily and may need support with hydration and nutrition (see the recommendations on dietary management and strategies)
·have problems accessing information, for example because of difficulty with screens, sound and light sensitivity, headaches affecting their ability to read, or brain fog affecting their concentration.
1.17.3 Personal care and support for people with severe or very severe ME/CFS should be carried out by health and social care practitioners who are:
·known to the person and their family or carers wherever possible
·aware of the person's needs.
1.17.4 Risk assess each interaction with a person with severe or very severe ME/CFS in advance to ensure its benefits will outweigh the risks (for example, worsening their symptoms) to the person. For people with very severe ME/CFS, think about discussing this with the person's family or carers on their behalf (if appropriate), while keeping the focus of the engagement on the person with ME/CFS.
Dr Claridge referred to the NICE Guideline and the European Network on ME/CFS Guidelines. He observed that:
Ms Brown has severe ME/[CFS] that causes significant impact on her sleep health. The guidelines above recommend that her treatment be patient orientated and symptom orientated. Her photophobia is to a level that any light causes disturbance in the sleep cycle. Providing the best environment to allow her to improve her sleep quality is very important to her quality of life. Motorised block out blinds are the only way to eliminate the effects of sunlight that disturb her sleep cycle.[71]
[71] Exhibit 1, A9, p 296.
The kitchen drawers are recommended by Ms Wray and primarily relate to Ms Brown’s POTS and cognition.
The Tribunal is satisfied that the requested supports are consistent with current good practice, including [1.17.2] of the NICE Guideline regarding managing the symptoms of severe ME/CFS. They are likely to be effective and beneficial for Ms Brown.
Section 34(1)(e) – the funding or provision of the support takes account of what is reasonable to expect families, carers, informal networks and the community to provide
Rule 3.4 of the Support Rules provides:
3.4 In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:
…
(b) for other participants:
(i) the extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community; and
(ii) the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:
(A) the age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and
(B) the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and
(C) the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and
(iii) the extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes;
(c) for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.
Ms Brown’s circumstances are such that she does not have access to considerable familial or social supports. Most of her family live south of Perth.[72] She has limited financial means. Ms Brown is connected with ME/CFS Australia and with relevant health service providers.[73] The requested supports are one-off capital expenditure, which are modest in nature and reasonable in all the circumstances.
[72] See Exhibit 3, p 1.
[73] See Exhibit 6, p 4.
Section 34(1)(f) – the support is an NDIS support for the participant
The Tribunal has ready given reasons for finding that the requested supports fall within the categories of supports which are declared to be ‘NDIS Supports’ under s 10 of the NDIS Act, read with the NDIS Supports Transitional Rules. Specifically, the Tribunal finds that the requested supports fall within the category of supports identified at items 8, 9, 22, and 23 of Sch 1 to those Rules. The requested supports are not ‘day-to-day living costs’ that are not attributable to Ms Brown’s disability support needs.
The Tribunal does not accept the Agency’s contention that the bedroom blinds will likely cause harm to Ms Brown. Similarly, there is no indication that the kitchen drawers pose a risk to anyone (including Ms Brown)
Funding the requested supports would not be contrary to law and they are not a form of income replacement.[74]
[74] See Support Rules, r 5.3.
Lastly, the Tribunal is required to have regard to whether the supports are most appropriately funded or provided through the NDIS (rather than through other service systems). Schedule 1 to the Support Rules sets out the relevant factors that must be considered when making that assessment.[75] These include:
Housing and community infrastructure
7.19 The NDIS will be responsible for:
(a) supports to assist a person with disability to live independently in the community, including by building their capacity to maintain a tenancy, and support for appropriate behaviour management; and
(b) home modifications for accessibility for a person in private dwellings; and
(c) home modifications for accessibility for a person in legacy public and community housing dwellings on a case-by-case basis but not to the extent that it would compromise the responsibility of housing authorities to develop, maintain and refurbish stock that meets the needs of people with disability; and
(d) user costs of capital in some situations where a person requires an integrated housing and support model and the cost of the accommodation component exceeds a reasonable contribution from individuals.
[75] Support Rules, r 3.5.
For those reasons, the requested supports are NDIS Supports and they should be funded for Ms Brown by the NDIS.
CONCLUSION
The Tribunal is satisfied that the bedroom blinds and the kitchen drawers meet the statutory criteria found in s 34(1) of the NDIS Act for them to be specified in Ms Brown’s SoPS. They are manifestly reasonable and necessary supports that should be funded under the NDIS for Ms Brown.
For those reasons, the Tribunal will vary the reviewable decision dated 20 November 2024 so that Ms Brown’s SoPS includes funding for:
(a)The bedroom blinds to be installed by ScreenAway Pty Ltd (with any necessary updated costings); and
(b)The kitchen drawers to be installed by Easy Access Kitchens Pty Ltd (with any necessary updated costings).
95. I certify that the preceding 94 (ninety-four) paragraphs are a true copy of the reasons for the decision herein of General Member J Papalia
...................[SGD].....................................................
Associate
Dated: 9 October 2025
Date of hearing: 16, 17 and 23 July 2025 Representative for the Applicant: Ms J Bloomfield, People with Disabilities WA Counsel for the Respondent Mr M D Paterson Solicitors for the Respondent: Mr T Pattinson, Mills Oakley Lawyers Pty Ltd
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