Brown and National Disability Insurance Agency (NDIS)

Case [2025] ARTA 2029

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

  1. ‘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.

  2. 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).

  3. 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)].

  4. Ms Brown sought the bedroom blinds and the kitchen drawers to address her sleep disturbance, light sensitivity, ‘post-exertional malaise’ (PEM) and orthostatic intolerance,…

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Details
AGLC
Brown and National Disability Insurance Agency (NDIS) [2025] ARTA 2029
Case
[2025] ARTA 2029
Decision Date

CaseChat Overview and Summary

In the matter of Brown and National Disability Insurance Agency (NDIS), the primary dispute centered on whether certain supports, specifically bedroom blinds and kitchen drawers, were reasonable and necessary for the applicant, Ms. Brown, given her neurological impairments. The matter was brought before the Tribunal which was tasked with determining whether these supports qualified as NDIS-funded aids under the National Disability Insurance Scheme Act 2013 (Cth). The Tribunal was required to assess whether these supports were essential for Ms. Brown's day-to-day living, whether they qualified as 'standard items', and to consider the weight of the evidence provided by Ms. Brown's treating occupational therapist, Ms. Wray, whose impartiality was in question.

The key legal issues before the Tribunal included the interpretation of the terms 'reasonable and necessary' within the context of the NDIS, and the extent to which the opinion of a treating occupational therapist should be weighted, particularly when the therapist was not available for cross-examination. The Tribunal needed to determine the relevance of Ms. Wray’s evidence, despite concerns about her impartiality, in the context of the overall evidence presented regarding Ms. Brown’s impairments and the necessity of the requested supports. Furthermore, the Tribunal had to ascertain whether the bedroom blinds and kitchen drawers were 'day-to-day living costs' excluded from NDIS funding under the Support Rules.

In its reasoning, the Tribunal acknowledged that Ms. Wray’s evidence, while potentially compromised by a lack of impartiality, still carried some weight due to the factual basis of Ms. Brown’s application and other medical evidence supporting her impairments. The Tribunal found that the requested supports were necessary to address Ms. Brown’s mobility and self-care needs arising from her ME/CFS. The Tribunal concluded that the bedroom blinds and kitchen drawers were not 'day-to-day' living costs, but rather reasonable and necessary supports under the NDIS Act. The Tribunal found that these supports met the criteria for being specified in Ms. Brown’s Support Plan, as they assisted her in pursuing her goals, facilitating social and economic participation, and represented value for money.

The Tribunal varied the reviewable decision to include funding for the installation of the bedroom blinds by ScreenAway Pty Ltd and the kitchen drawers by Easy Access Kitchens Pty Ltd, with any necessary updated costings. This decision underscored the importance of addressing specific impairments through tailored supports that enhance the participant's independence and quality of life.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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).

Ratio Decidendi

Legal Principle Established

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).