BSDY and Chief Executive Officer, National Disability Insurance Agency (NDIS)

Case [2025] ARTA 2270

BSDY and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2025] ARTA 2270 (21 October 2025)

Applicant:BSDY

Respondent:  Chief Executive Officer, National Disability Insurance Agency

Tribunal Number:                2024/3633

Tribunal:General Member A Colvin

Place:Brisbane

Date:21 October 2025

Decision:

1.The decision under review made on 29 May 2024, which affirmed an approval of a statement of participant supports in the Applicant’s plan dated 18 December 2023, is set aside and the matter remitted to the Respondent for reconsideration in accordance with the following direction:

2.The statement of participant supports specifies that the reasonable and necessary supports include:

(a)Core Supports – Assistance with Daily Life – 6 hours per week (Weekday daytime rate).

The supports listed above at paragraph 2(a) replace the Applicant’s existing funding for Assistance with Daily Life.

(b)Core Supports – Consumables – Auslan or Signed English training at the hourly rate specified within the Deaf Connect quote dated 2 July 2024 – 5 hours.

(c)Capacity Building Supports – Improved Daily Living:

(i)     Speech Pathology – 34 hours, representing:

(A)26 hours of therapy.

(B)3 hours of report writing.

(C)5 hours of AAC training.

(ii)    Occupational Therapy – 29 hours, representing:

(A)26 hours of therapy.

(B)3 hours of report writing.

(iii)    Physiotherapy – 30 hours, representing:

(A)26 hours of therapy.

(B)4 hours of report writing.

The supports listed above at paragraph 2(c) replace the Applicant’s existing funding for Improved Daily Living.

(d)Capacity Building Supports – Support Coordination – Level 2: Coordination of Supports – 24 hours per year.

3.All other supports in the Applicant’s existing statement of participant supports, excepting any one-off assistive technology supports already used, are to be provided on a pro-rata basis from the date on which the supports specified above are included in the Applicant’s statement of participant supports until the reassessment date.

4.The management of funding for reasonable and necessary supports under the Applicant’s plan is to remain the same as the management of funding for those supports as specified in the statement of participant supports in the plan dated 18 December 2023.

5.The date by which the Respondent must reassess the Applicant’s plan is to be 12 months after the date on which the supports in paragraph 2 above are included in the Applicant’s statement of participant supports.

................[SGD]....................

General Member A Colvin

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – National Disability Insurance Scheme Act 2013 (Cth) – consideration of section 34 – reasonable and necessary supports – reimbursement for bathroom modifications – reimbursement for plantation shutters – support worker assistance – epilepsy monitoring equipment – NightWatch Epilepsy Monitor – SAMi-3 Camera Premium Kit – iPad – router

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National…

Continue reading BSDY and Chief Executive Officer, National Disability Insura...

Sign in free to access the full text

Details
AGLC
BSDY and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2024] ARTA 285
Case
[2025] ARTA 2270
Decision Date

CaseChat Overview and Summary

BSDY and the Chief Executive Officer of the National Disability Insurance Agency (NDIS) appeared before the Administrative Appeals Tribunal (AAT) in a case concerning the reimbursement of expenses for bathroom modifications and the provision of various supports under the National Disability Insurance Scheme (NDIS). BSDY sought reimbursement for modifications made to his home's bathroom and argued that certain additional supports were necessary to address his needs arising from his disabilities. The AAT had to determine whether the requested supports were reasonable and necessary, and if the Agency's decision to deny reimbursement and certain supports was lawful.

The primary legal issues revolved around the interpretation and application of section 34 of the National Disability Insurance Scheme Act 2013 (Cth). Specifically, the court had to determine whether the modifications and supports requested by BSDY met the criteria of being "reasonable and necessary" for addressing BSDY's needs due to his impairments, and whether the Agency's decision to deny reimbursement and certain supports was justified. The court also had to consider the specific requirements of the NDIS Act in relation to the provision of reasonable and necessary supports for individuals with disabilities.

The AAT found that the Agency's decision to deny reimbursement for the bathroom modifications and certain supports was not supported by the evidence. The Tribunal was satisfied that the modifications were necessary to enable support to be provided to BSDY while showering and using the toilet, as he required significant assistance with personal care. Additionally, the Tribunal determined that the additional supports, including assistance with daily life, consumables, speech pathology, occupational therapy, physiotherapy, and support coordination, were necessary to address BSDY's needs arising from his impairments. The Tribunal concluded that the Agency's decision did not adequately consider the evidence and the specific needs of BSDY, and therefore set aside the decision and remitted the matter for reconsideration in accordance with the directions provided.

The AAT's decision provided clear directions for the Agency to reassess BSDY's plan and ensure that the necessary supports are included. The Tribunal also specified that the management of funding for the supports should remain the same and that the reassessment must occur within 12 months from the date the supports are included in BSDY's statement of participant supports.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Having regard to the material before me, I am satisfied that these concessions by the Agency are appropriately made and that the requirements of subsection 34(1) of the NDIS Act are met for each of these supports.DECISION1.The decision under review made on 29 May 2024, which affirmed an approval of a statement of participant supports in the Applicant’s plan dated 18 December 2023, is set aside and the matter remitted to the Respondent for reconsideration in accordance with the following direction:2.The statement of participant supports specifies that the reasonable and necessary supports include:(a)Core Supports – Assistance with Daily Life – 6 hours per week (Weekday daytime rate).The supports listed above at paragraph 2(a) replace the Applicant’s existing funding for Assistance with Daily Life.(b)Core Supports – Consumables – Auslan or Signed English training at the hourly rate specified within the Deaf Connect quote dated 2 July 2024 – 5 hours.(c)Capacity Building Supports – Improved Daily Living:(i) Speech Pathology – 34 hours, representing:(A)26 hours of therapy.(B)3 hours of report writing.(C)5 hours of AAC training.(ii) Occupational Therapy – 29 hours, representing:(A)26 hours of therapy.(B)3 hours of report writing.(iii) Physiotherapy – 30 hours, representing:(A)26 hours of therapy.(B)4 hours of report writing.The supports listed above at paragraph 2(c) replace the Applicant’s existing funding for Improved Daily Living.(d)Capacity Building Supports – Support Coordination – Level 2: Coordination of Supports – 24 hours per year.3.All other supports in the Applicant’s existing statement of participant supports, excepting any one-off assistive technology supports already used, are to be provided on a pro-rata basis from the date on which the supports specified above are included in the Applicant’s statement of participant supports until the reassessment date.4.The management of funding for reasonable and necessary supports under the Applicant’s plan is to remain the same as the management of funding for those supports as specified in the statement of participant supports in the plan dated 18 December 2023. 5.The date by which the Respondent must reassess the Applicant’s plan is to be 12 months after the date on which the supports in paragraph 2 above are included in the Applicant’s statement of participant supports.

Ratio Decidendi

Legal Principle Established

In FSWN and National Disability Insurance Agency[8] the Tribunal set out the steps in determining whether a support is an NDIS support. The first step is to 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 NDIS Supports Transitional Rules by reference to the description of supports that fall within the scope of that category contained in column 2 of the Table. Only if the support does not fall within Schedule 2 is it necessary to consider whether it falls within Schedule 1. CONSIDERATION[8] [2025] ARTA 114BSDY’s goals BSDY’s goals, set out in his current plan, include goals around communication, increased independence with activities of daily living, improved behaviour regulation, the ability to engage socially with peers, managing behaviours of concern, and support for his parents to continue in their carer roles. BSDY’s impairments To meet the requirements of paragraph 34(1)(aa) of the NDIS Act, any supports BSDY seeks must be supports that are necessary to address needs of BSDY from an impairment in relation to which he meets the access requirements, that is, the disability requirements in section 24 or the early intervention requirements in section 25. BSDY was granted access to the NDIS in 2016 based on impairments arising from ASD, and since 2020 the Agency has also acknowledged that he has impairments from intellectual disability that meet the access requirements. At the hearing, the Agency also acknowledged that BSDY has a diagnosis of epilepsy, and that regard should be had to impairments from that condition for the purposes of paragraph 34(1)(aa) of the NDIS Act. No contention was made on BSDY’s behalf that he has additional impairments that meet the access requirements. Reimbursement of $28,678 for bathroom modifications Background BSDY’s parents modified their bathroom in 2022. CHL sought reimbursement of $28,678 that she and her husband spent on those modifications. CHL’s evidence was that the bathroom modifications were completed in around August 2022. She provided three invoices from the building company that carried out the work. They are dated 7 June 2022, 22 June 2022, and 13 July 2022, and total $28,678. The invoices do not detail the work that was undertaken but the builder provided a breakdown of the cost, totalling $26,015. No clear explanation was provided for the discrepancy of more than $2,000 between the amount sought and the itemised breakdown. CHL contended that the bathroom modifications were necessary to enable support to be provided to BSDY while showering and when using the toilet. The evidence is that BSDY requires significant assistance with personal care. Further, although the bathroom modifications were carried out without advice from an occupational therapist or other professional, two occupational therapists considered that the bathroom in its previous form was not adequate for BSDY. The occupational therapist engaged by the Agency, RET, recorded in his report dated 17 April 2025 that BSDY’s parents told him that BSDY was unable to independently shower himself, and that he required full assistance to regulate the shower temperature, and wash and dry himself. BSDY also required full physical assistance to wash his hair and brush his teeth. He was also unable to independently dress himself, as he was unable to orient clothing properly and would put items on backwards or inside out. He was also unable to clean himself after a bowel movement.