BSDY and Chief Executive Officer, National Disability Insurance Agency (NDIS)
[2025] ARTA 2270
•21 October 2025
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 Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth)Cases
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
National Disability Insurance Agency v WRMF [2020] FCAFC 79
FSWN and National Disability Insurance Agency [2025] ARTA 114
ZNVT by his Nominee and CEO, National Disability Insurance Agency [2025] ARTA 1824PTJR and CEO, National Disability Insurance Agency [2025] ARTA 196
Pizzini and CEO, National Disability Insurance Agency [2025] ARTA 486
Nott and CEO, National Disability Insurance Agency (Practice and Procedure) [2025] ARTA 780
LPDZ and National Disability Insurance Agency [2025] ARTA 1988
TRCH and National Disability Insurance Agency [2024] AATA 2918
WWWX and National Disability Insurance Agency [2024] ARTA 285Secondary Materials
NDIS – Operational Guidelines Reasonable and necessary supports
Statement of Reasons
BACKGROUND
BSDY is a teenager and a participant in the National Disability Insurance Scheme (NDIS). He resides with his family and attends school. He was granted access to the NDIS based on impairments arising from autism spectrum disorder (ASD) level 3. He also has intellectual disability, epilepsy, global hypotonia and severe expressive and receptive language delay.
As an NDIS participant, BSDY has a plan that includes a statement of participant supports (SOPS). The current SOPS was approved on 19 December 2023 by a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (Agency) pursuant to the National Disability Insurance Scheme Act (NDIS Act). It sets out funding available to BSDY for supports provided from 18 December 2023 to 17 December 2025. It includes total funding over those two years of $111,116.26, including $76,545.20 for core supports and $34,571.06 in capacity building supports.
The decision to approve the current SOPS was affirmed on 29 May 2024, with no changes made to the original decision. On 5 June 2024 BSDY applied to the Administrative Appeals Tribunal, now the Administrative Review Tribunal, seeking review of the decision dated 29 May 2024.[1] BSDY was represented in his application by this mother, CHL.
[1] From 14 October 2024, the AAT became the Administrative Review Tribunal. Applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to this Tribunal, and this Tribunal has authority to continue and finalise any aspect of the review not already completed by the AAT. See the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
At the commencement of the hearing CHL confirmed that she no longer sought reimbursement for an accounting course she had undertaken. However, she sought the following items on BSDY’s behalf:
·reimbursement of $28,678 for bathroom modifications undertaken in 2022;
·reimbursement of $18,950 for plantation shutters installed in 2024;
·funding in BSDY’s SOPS for 15 hours/week of support worker assistance; and
·funding in BSDY’s SOPS of $5124.50 for technology to monitor epilepsy, namely:
oNightWatch Epilepsy Monitor (the NightWatch);
oSAMi-3 Camera Premium Kit; (the SAMi-3 kit);
oSleepSure Intermediate Pillow; and
oa delivery fee.
The parties also agreed that the current SOPS should include funding for the following supports that were either not included in the current SOPS or included in a different quantity:
·level 2 support coordination of 24 hours;
·Auslan or signed English training for five hours;
·speech pathology of 34 hours (including 3 hours of report writing and 5 hours of AAC training);
·occupational therapy of 29 hours; and
·physiotherapy of 30 hours.
The hearing took place by videoconference on 14 and 15 October 2025. The Agency provided a Statement of Facts, Issues and Contentions and separate written submissions on jurisdiction. The Tribunal heard oral evidence from CHL. It also heard evidence from RET, an independent occupational therapist engaged by the Agency to undertake an assessment and provide a report. Documents available to the Tribunal included:
·a joint hearing bundle lodged by the Agency numbered to page 412 (Exhibit 1);
·a supplementary hearing bundle comprised of pages 413 to 438 (Exhibit 2); and
·a further supplementary hearing bundle comprised of pages 414 to 481 (Exhibit 3).
THE LAW
The legislative framework
The statutory provisions relevant to this application for review are found within the NDIS law, including:[2]
·the NDIS Act;
·the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Supports Rules);
·the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth) (Miscellaneous Provisions Rules); and
·the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth) (NDIS Supports Transitional Rules).
[2] The statement of the law that follows largely adopts the summary in LPDZ and National Disability Insurance Agency [2025] ARTA 1988
The Agency also issues Operational Guidelines. The Tribunal is not bound to follow Operational Guidelines issued by the Agency but, in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task.[3] Operational Guidelines considered in the present matter are published by the Agency on its website and include guidelines on Reasonable and Necessary Supports.[4]
[3] Re Drake v Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634
[4] Webpage: ourguidelines.ndis.gov.au
Approving the SOPS in participants’ plans
Section 3 of the NDIS Act sets out the objects of the NDIS Act. Sections 4 and 5 of the NDIS Act set out general principles guiding actions under the NDIS Act, and sections 17A and 31 of the NDIS Act set out principles that relate to participation in the NDIS and plans.
If a person becomes a participant, under section 32 of the NDIS Act the CEO must facilitate the preparation of a plan for the participant. BSDY’s plan is an ‘old framework plan.’ For those plans, section 33 of the NDIS Act sets out the matters that must be included in a participant’s plan. A plan must include a statement of the participant’s goals and aspirations. It must also include a SOPS, prepared with the participant and approved by the CEO. The SOPS in a participant’s plan must specify, among other things, ‘the reasonable and necessary supports (if any) that will be funded’ under the NDIS.[5]
[5] Paragraph 33(2)(b) of the NDIS Act
When approving a SOPS in a participant’s plan, the CEO must comply with the mandatory requirements contained in subsection 33(5) of the NDIS Act. One of the requirements in subsection 33(5) is that the CEO ‘be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded’: paragraph 33(5)(c) of the NDIS Act.
Subsection 34(1) of the NDIS Act deals with ‘reasonable and necessary supports’.[6] It sets out matters that the decision-maker must be satisfied about before funding a support. These are more than mandatory considerations. They are more in the nature of criteria that the decision‑maker must be positively satisfied about on the material.[7]
[6] After BSDY applied to the AAT, the NDIS Act was amended by the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth) (the Amending Act). This is subsection 34(1) of the NDIS Act as amended. The effect of item 129 in Part 3, Schedule 1 to the Amending Act is that the Tribunal can only vary the SOPS in BSDY’s plan if section 34 of the NDIS Act, as amended by the Amending Act, is met
[7] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at 201
34 Reasonable and necessary supports
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(aa)the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation.
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is a NDIS support for the participant.
Note: For the purposes of paragraph (aa):
(a)the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b)a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
When approving a SOPS in a participant’s plan the Supports Rules are relevant. The Miscellaneous Provisions Rules are also relevant. Rule 7 imposes a requirement that the support is most appropriately funded through the NDIS and not through other systems or bodies as part of universal service obligations or in accordance with reasonable adjustments required under laws dealing with discrimination.
Importantly, paragraph 34(1)(f) of the NDIS Act requires the CEO to be satisfied that the support is ‘a NDIS support’ for the participant. Section 10 of the NDIS Act defines ‘NDIS support’. The effect of that section, in essence, is that a support is an NDIS support if it is declared by rules to be an NDIS support, provided that rules have not declared that the support is not an NDIS support, and provided that the support is not sexual services, alcohol, or illicit drugs. The NDIS Supports Transitional Rules declare certain items to be NDIS supports and certain items to not be NDIS supports.
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 114
BSDY’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.
RET regarded the bathroom modifications as modifications related to BSDY’s impairments. He considered that the modified elements of the bathroom that were related to BSDY’s impairments were the open plan nature of the bathroom, the open level access shower with no hob or door, the open vanity area and the toilet which allowed safe access for a carer from the side.
CHL also provided a report from an occupational therapist, RPN. In her report dated 12 May 2024, RPN provided photographs of the bathroom in its previous and current form. RPN noted that an occupational therapist was not involved in the home modifications at the time those modifications were done, but that it was clear the previous bathroom would not have enabled external providers to safely meet BSDY’s self-care and hygiene needs.
At the time the modifications were carried out and paid for, BSDY’s NDIS plan was a plan dated 14 January 2022 (the 2022 plan). One of the BSDY’s goals in that plan was to increase his independence with activities of daily living, including showering and toileting, and to explore assistive technology and home modification options to increase his independence. However, the SOPS in the plan included no funding for bathroom modifications.
On 12 July 2022, CHL spoke with an officer at the Agency to enquire about funding for bathroom modifications. The transcript of that discussion shows that CHL was advised that she would need to provide an occupational therapy assessment and builder’s quote for the home modifications and that the form that needed to be completed was the ‘Home Modifications Assessment Template.’ The Agency officer offered to guide CHL to where that form was located on the Agency’s website and provided CHL with an email address for lodging the completed documents.
CHL and her husband did not follow that process. Instead, they proceeded with the bathroom modifications at their own cost. It is likely that CHL and her husband had already committed to the bathroom modifications at the time of that enquiry given that two of the invoices predate CHL’s enquiry on 12 July 2022.
It was not until almost two years later, on 14 March 2024, that CHL informed the Agency she had undertaken bathroom modifications in 2022 and asked the Agency to contribute to the cost. In her email to the Agency, she stated:[9]
I contacted my OT and they wanted to charge me for a report and also advised that it’s really hard to get mods done through the NDIS – I couldn’t wait anymore and I did it on my own…I made a choice to choose my own builder who I trusted. I shouldn’t have to pay over $2,000 to have an OT do a report – when they see my son once a fortnight for an hour when I am his own mum – and there was no way I was waiting for someone through the NDIS to pay twice as much. I have attached the invoice – I don’t expect you to pay all of it, but you can contribute – the invoice also includes our ensuite which (BSDY) doesn’t use. So please exclude that (sic).
[9] Page 74
By the time CHL made that request for reimbursement, a new NDIS plan was in place for BSDY. That was the plan that commenced on 18 December 2023 containing the current SOPS.
In her oral evidence, CHL acknowledged that she knew at the time that the bathroom modifications were carried out that the 2022 plan did not include funding for bathroom modifications. She said that the reason she eventually sought reimbursement in March 2024 was that she was told that it was possible to obtain reimbursement from the Agency for expenditure. She could not recall who told her this.
In her oral evidence, CHL also said that after speaking with the Agency officer in July 2022 she did speak to her son’s occupational therapist, but was advised by that occupational therapist that they did not do reports for bathroom modifications. CHL’s own view was also that it was unnecessary to obtain an occupational therapy report for funding for bathroom modifications. She considered that, as his mother, she should be able to ‘fill out a simple form.’ She maintains that view. CHL said that when she relayed to the Agency that her son’s occupational therapist did not do bathroom modification reports, the Agency advised her that it could not assist her. CHL could not recall whether that advice was provided in a phone call or web chat. The Agency has no record of that conversation.
CHL’s submissions
CHL contended that the modifications should be reimbursed, noting that:
·she feels under stress and let down by the system;
·she did not know how the NDIS worked and there was a lack of information or conflicting information provided to her;
·the occupational therapist engaged by the Agency agreed that bathroom modifications were required; and
·obtaining an occupational therapy report in 2022, before carrying out bathroom modifications, would have used a ‘massive’ amount of the funding in her son’s plan for occupational therapy, and planners do not read those reports anyway so why should she waste funding on this, and her information as BSDY’s mother is sufficient.
Agency’s submissions
The decision under review is the internal review decision dated 29 May 2024, reviewing the SOPS approved on 19 December 2023, and the Agency contends that it is not open to the Tribunal to include funding for bathroom modifications in that SOPS. This is because the bathroom modifications were undertaken in 2022, before that SOPS commenced. The Agency contends that SOPS are prospective. It provided detailed written submissions on this issue, referring the Tribunal to recent decisions of Senior Member French in PTJR and CEO, National Disability Insurance Agency[10] (PTJR’s case), Pizzini and CEO, National Disability Insurance Agency[11] and Nott and CEO, National Disability Insurance Agency (Practice and Procedure).[12]
Consideration
[10] [2025] ARTA 196
[11] [2025] ARTA 486
[12] [2025] ARTA 780
I accept the Agency’s submissions. The Tribunal’s role includes reviewing decisions of the Agency but only those decisions where legislation allows a person to apply to the Tribunal for review of that decision. The Agency’s decision dated 29 May 2024 is a decision of the kind that the Tribunal can review.[13] CHL clearly specified in the application to the Tribunal for review that this was the decision BSDY wanted reviewed. That decision is an internal review of the decision to approve a SOPS on 18 December 2023.
[13] Sections 99 and 100 of the NDIS Act
This means that the decision under review is the decision dated 29 May 2024, which affirmed the decision to approve the SOPS on 18 December 2023. That SOPS can only include funding for reasonable and necessary supports for BSDY that are provided from 18 December 2023 onwards. It is not possible to include in the current SOPS funding that would reimburse CHL and her husband for bathroom modifications carried out before 18 December 2023. That is a support provided in 2022, not a support provided after 18 December 2023. The prospective nature of plans was addressed at length, and in my respectful view correctly, in PTJR’s case.
CHL is correct that the NDIS can reimburse expenditure after a support has been provided. However, the 2022 plan did not include funding for bathroom modifications. This means that there was no funding in that plan that CHL could draw upon when she sought reimbursement in 2024.
I acknowledge that the evidence is that BSDY requires very substantial support with personal care and that RET’s evidence was that the bathroom modifications addressed needs of BSDY. I also acknowledge that CHL feels stressed and let down and feels that insufficient information was provided to her.
However, even if I considered it fair in all the circumstances that the Agency reimburse CHL and her husband for the bathroom modifications, the Tribunal has no general power to, for example, order that the Agency make payments that the Tribunal regards as fair in the circumstances. The Tribunal’s role in the present matter is limited to considering the SOPS approved on 18 December 2023 in accordance with the provisions of the NDIS Act.
Further, the evidence is that BSDY has been a participant of the NDIS since 2016 and in 2022 CHL was aware of the process to include different or additional funding in a plan, having previously done so. She also sought and obtained advice in July 2022 regarding the information she would need to supply for the Agency to consider including funding for bathroom modifications in BSDY’s SOPS at that time. The Agency is unable to include funding for a support in a SOPS unless the Agency is satisfied that the extensive criteria in NDIS legislation is met, including the requirements in section 34 of the NDIS Act. A bathroom modification is a high-cost item. The Agency advised CHL how to apply for funding and the information it would require in considering such a request. For a range of reasons, CHL elected not to pursue this and to instead self-fund the modifications.
Reimbursement of $18,950 for plantation shutters
CHL and her husband installed plantation shutters throughout their home in 2024. She sought reimbursement for the cost, totalling $18,950. An invoice from the supplier indicates that CHL ordered the shutters on 11 April 2024 and then paid for the shutters in July and August 2024.
CHL contended that installing the plantation shutters was a home modification that was essential for BSDY’s safety and overall wellbeing.[14] She explained the need for shutters as follows:[15]
Individuals with autism often have sensory sensitivities, and bright or fluctuating light can be particularly distressing. Shutters help to control the level of light, reducing sensory overload and providing a calm environment. For a person with epilepsy, managing environmental triggers is critical. Flashing lights or sudden changes in light intensity can trigger seizures.
[14] Page 354
[15] Page 350
CHL explained in her oral evidence that there had previously been vertical blinds in her home but BSDY had wrapped the cords for those blinds around himself and she was concerned he might harm himself. She said that her family had tried wrapping the cords up but this had not prevented BSDY from accessing the cords. CHL said she researched alternatives and found plantation shutters were the only alternative that did not have cords. CHL considered that curtains also posed a risk as BSDY could harm himself by wrapping a curtain around himself.
CHL did not contact the Agency prior to ordering and installing the shutters. She said she did speak with an occupational therapist but acknowledged that she only ‘touched on’ shutters with the occupational therapist and that no occupational therapist provided a report recommending shutters.
RET’s evidence, set out in his report and confirmed in oral evidence, was that heat and sleep deprivation can increase the risk of seizure activity, but that installation of the shutters was unrelated to BSDY’s impairments. RET considered that appropriate modifications can be made to eliminate the strangulation risk posed by cords, noting that cords can be significantly shortened and affixed to the wall with a bracket.[16] In oral evidence RET also said that heavy blackout curtains would not pose a risk of strangulation, nor would they require cords. He also agreed that mechanisms other than cords were available to open the blades on blinds.
[16] Page 387
The Agency contended that paragraph 34(1)(f) of the NDIS Act was not met because the plantation shutters were excluded as an NDIS support by item 1(j) in Schedule 2 of the NDIS Supports Transitional Rules. That item refers to ‘day-to-day living costs – accommodation and household’ and item 1(j) specifically excludes ‘standard furniture, fixtures or fittings’. An item is a ‘standard item’ if it is not modified or adapted to address the functional impairments of the participant or prospective participant’.[17]
[17] Section 4 of the NDIS Supports Transitional Rules
CHL contended that plantation shutters were a one-off expense and not a day-to-day living cost.
The plantation shutters that CHL and her husband installed are a high-cost item, and not an expense that they will incur on a regular basis. However, I do not accept that the phrase ‘day-to-day living costs’ in the category description in column 1 of item 1 means that ‘standard fixtures’ in item 1(j) should be restricted to expenses that are small, regular expenses.
The Full Federal Court considered the phrase ‘day-to-day living costs’ in Rule 5 of the Supports Rules in National Disability Insurance Agency v Warwick, finding that one-off, remarkable, unforeseen, infrequent or extraordinary costs will not be excluded by Rule 5, even if they are costs that all or the majority of persons incur for the purposes of living.[18] However, I must apply the NDIS Supports Transitional Rules and item 1 of Schedule 2 expressly includes many items that are high-cost, one-off expenses including pools, spa baths, saunas, steam rooms, solar panels, home batteries, hot water systems, stamp duty, and house and land packages.
[18] [2025] FCAFC 100 at [66]
The plantation shutters that CHL and her husband installed have a feature which is beneficial in terms of BSDY’s impairments (that is, no cords). However, they are a kind of window covering routinely installed in homes and do not generally have cords. They were not modified or adapted in any way to address functional impairments of BSDY. I am therefore satisfied that they are standard fixtures and specifically excluded by item 1(j). This means that paragraph 34(1)(f) of the NDIS Act is not met.
The Agency also contended that paragraph 34(1)(c) of the NDIS Act was not met, noting that the costs of installation throughout the house was high, that no alternative quotes were provided, and there was no evidence from a specialist exploring alternatives. I agree with that submission, noting RET’s evidence of an alternative and far less expensive solution for removing the strangulation risk posed by cords.
The Agency also contended that the Tribunal does not have power to order that the Agency reimburse expended funds, referring to TRCH and National Disability Insurance Agency[19] and WWWX and National Disability Insurance Agency.[20] Given the view I have taken in relation to the requirements in paragraphs 34(1)(c) and (f) of the NDIS Act, it is not necessary for me to consider that submission.
[19] [2024] AATA 2918
[20] [2024] ARTA 285
Support worker assistance
BSDY’s current plan includes funding in core supports for five hours/week for assistance with daily life. It also includes funding for assistance with social, economic and community participation of four hours/week at a weekday rate and 6 hours/month at the Saturday daytime rate.
CHL sought funding for a support worker for 15 hours/week throughout the year for assistance with daily life for BSDY, in place of the current funding of five hours/week.
The Agency conceded that funding for assistance with daily life was required but regarded 6 hours/week as reasonable and necessary. The Agency’s concession was based on RET’s recommendation. The Agency contended that funding beyond that level did not meet the requirements in paragraph 34(1)(a), (c) or (e) of the NDIS Act.
CHL’s evidence was that BSDY received support from support workers but there was no set pattern to this. She said that BSDY attended school on weekdays. He woke early and played on an iPad. CHL prepared breakfast for him and drove him to school. It was often a struggle to get him dressed and to get him to school. He had one main support worker, and that person provided support after school on Mondays and Tuesdays, including taking BSDY to an after-school activity on Tuesdays. BSDY had therapy appointments to attend but these were not on regular days. CHL said that BSDY’s family continued to provide all support with showering and toileting when BSDY was at home, even if a support worker was present. That was her preference, and it was not intended that support workers would be used for this.
By the time of the hearing, only about one quarter of BSDY’s core funding had been utilised, even though that funding covered a two-year period that was almost at an end. CHL said that one of the reasons the funding had not been utilised was that she had delayed using funding because she had intended to be away from home during September 2025 and planned to engage a support worker during that period to be present each weekday afternoon until her husband got home. However, her plans were subsequently cancelled.
The occupational therapist engaged by the Agency, RET, recommended a support worker for assistance with daily life for 6 hours/week. His evidence was that BSDY required full physical assistance for self-care activities, and that this was being provided by his parents. However, they were providing well above what was usually expected of a parent of a teenage boy. RET said that he would have recommended assistance for BSDY of two hours/day, to include assistance with personal care plus some assistance with feeding, including cutting up food and prompting. However, given that BSDY’s parents intended to continue to provide personal care RET regarded 6 hours/week as appropriate. RET said that this would assist BSDY to develop and practise simple daily living skills according to his goals as directed by an occupational therapist. This might include very simple preparation of snacks or drinks, maintaining his room, or taking responsibility for a simple chore. RET thought it important that BSDY practise these skills in a therapeutic setting and then transfer those to everyday routines.
I am not satisfied on this evidence that 15 hours/week for assistance with daily life is necessary to address BSDY’s needs arising from impairments that meet the access criteria or that it represents value for money. I consider that 6 hours/week for assistance with daily life is necessary and represents value for money. That is, I am not satisfied that the requirements in paragraphs 34(1)(aa) and (c) of the NDIS Act are met for funding at the level requested by CHL on BSDY’s behalf but I am satisfied that paragraphs 34(1)(aa) and (c) of the NDIS Act are met for funding for 6 hours/week.
In reaching that view I have placed weight on RET’s opinion that 6 hours is appropriate. However, I have also relied on CHL’s own evidence on the extent to which support has been utilised under the current plan, the extent it was being utilised at the time of the hearing, and the way that CHL intended to utilise support workers in the future. Her own evidence did not establish a need for support workers for assistance with daily life for 15 hours/week or that, even if that funding was available, it would be utilised.
CHL gave evidence that she hoped BSDY would be able to commence part-time employment when he turns 15 in mid-2026. She had not explored this beyond identifying it as a possible goal. The support currently in issue is assistance with daily life. If BSDY does wish to explore employment in mid-2026, and requires different or additional supports for that, application can be made at that point for appropriate funding in his SOPS.
CHL also gave evidence regarding a recent health issue of her own that was impacting her capacity to supervise BSDY in public. Although CHL’s health issue had persisted it was improving and there was no evidence that it would not resolve soon. Further, the evidence was that it was CHL’s husband who assisted BSDY with showering. Therefore, I regard 6 hours, rather than 15, as necessary even taking into account CHL’s own recent health issue.
I therefore consider that the requirements in paragraphs 34(1)(aa) and (c) of the NDIS Act are met for funding for 6 hours/week for assistance with daily life. The Agency conceded that the remaining requirements in subsection 34(1) of the NDIS Act are also met for funding at that level and I am satisfied that concession is appropriately made.
$5,124.50 for epilepsy monitoring equipment
BSDY sought funding in the current SOPS of $5,124.50 for items set out in a quote dated 9 May 2025 from Seizure Alert Australia for the following:
(i)NightWatch Epilepsy Monitor (the NightWatch) ($2,755);
(ii)SAMi-3 Camera Premium Kit; (the SAMi-3 kit) ($2,205);
(iii)SleepSure Intermediate Pillow ($145); and
(iv)a delivery fee ($19.50).
The NightWatch and Sami-3 kit are both epilepsy monitors. The SAMi-3 kit contains the SAMi-3 camera together with an iPad and router. The SAMi-3 camera can be purchased alone for approximately $800.
CHL provided general information from the Epilepsy Foundation regarding seizure monitors, contained in a brochure dated December 2020. It described the SAMi-3 and the NightWatch and the advantages and disadvantages of each. [21]
[21] Page 215-6
The brochure describes the SAMi-3 as a video-based movement detection system, with an infrared camera that detects motion during the night and alerts parents/carers on their Apple device. Events are recorded and archived. Unlike a baby monitor which only detects sound, this device detects motion.
In terms of disadvantages, the brochure notes that the SAMi-3 requires an Apple device and good quality Wi-Fi. In addition, it notes that if your child is a very restless sleeper ‘you may get lots of false alarms.’ The camera also has visible lights on the front. It has a bright power light which can be easily covered but there is also a ring of dim red lights that cannot be covered as they allow the camera to see in the dark, and this might bother some people.
The brochure describes the NightWatch as a comfortable wireless armband that closely monitors heart rate and motion while the wearer is lying in bed. When the NightWatch detects movement and a change in heart rate, a warning is transmitted to the caregiver via a wireless signal to the armband’s corresponding base station.
In terms of disadvantages of the NightWatch, the brochure notes that the device can send out false alarms, that more studies need to be done on the device, that it is expensive, and that it can only work at night as an armband and needs to be charged during the day for nighttime use.
BSDY has epilepsy and CHL gave evidence that BSDY experiences absence seizures. Around the time that he was diagnosed with epilepsy he also suffered a major seizure that resulted in hospitalisation. She said his epilepsy is now treated with medication, but BSDY had nevertheless had two seizures reasonably recently. She said that at present she has no way to monitor BSDY for seizures and BSDY is unable to tell her when he is having a seizure. She checks on him during the night, when she wakes, to make sure he is breathing.
BSDY’s consultant paediatrician and neurologist recommended epilepsy monitoring. In September 2024 she recorded that BSDY’s management plan included to ‘advocate for use of seizure monitor, seizure alarm, anti-suffocation pillow, night watch, and day monitor to prevent prolonged seizures and resultant impairments’. She recommended CHL arrange for an occupational therapy assistive technology form to be completed to support the need for seizure monitoring devices. [22]
[22] Page 309-10
Shortly after, an occupational therapist provided recommendations on assistive technology for BSDY. She reviewed the Embrace 2 Empatica watch, the Tunstall watch, an Apple watch, and the SAMi-3 camera. She recommended that BSDY be provided with funding for an anti-suffocation pillow (costing $160-$240), the SAMi-3 camera (costing $800-$900) and an iPad.[23]
[23] Page 325-6
Subsequently, in May 2025, BSDY’s consultant paediatrician and neurologist recorded BSDY’s management plan as including advocating for the provision of the SAMi-3 seizure monitoring camera.
CHL could not recall whether she had discussed the NightWatch with an occupational therapist. CHL said she trialled the NightWatch and the SAMi-3 camera one night, after borrowing them. She said it was something that happened quickly, without her even knowing how to use the equipment, and she was not sure that she used it properly. The trial was not arranged or overseen by any health professional.
The Agency conceded, and I accept, that the evidence is that BSDY would benefit from seizure monitoring. The Agency also conceded, and I accept, that the SAMi-3 camera and the SleepSure Intermediate Pillow are both reasonable and necessary supports meeting the requirements in subsection 34(1) of the NDIS Act. These findings are supported by the above assistive technology report completed by an occupational therapist and the recommendations in 2024 and 2025 by BSDY’s consultant paediatrician and neurologist.
The Agency contended that the iPad and router, which formed part of the SAMi-3 kit, could not be funded because neither was an ‘NDIS support’ and that paragraph 34(1)(f) of the NDIS Act was therefore not met. Item 4 in Schedule 2 of the NDIS Supports Transitional Rules refers to ‘day-to-day living costs – lifestyle’ and item 4(d) specifically excludes ‘internet devices (such as modems and routers)’ and ‘tablets’.
The Agency further noted that an iPad was not an NDIS support even when it was only used with communication technology, since the NDIS Supports Transitional Rules prescribe objects, not their use. In that regard, the Agency referred the Tribunal to the decision in ZNVT by his Nominee and CEO, National Disability Insurance Agency (ZNVT’s case).[24]
[24] [2025] ARTA 1824 at [7] and [47]-[53]
I agree with the Agency’s submission. A router and iPad are not NDIS supports and paragraph 34(1)(f) of the NDIS Act is not met for those items and that is the case even if they are used solely in conjunction with the SAMi-3 camera for epilepsy monitoring. The focus of Item 4 in Schedule 2 of the NDIS Supports Transitional Rules is on the character of an item, not its use.[25] That BSDY would only use the iPad and router to assist in monitoring his epilepsy does not change the character of those items to something other than a tablet and a router.
[25] ZNVT’s case
In advocating for the NightWatch in addition to the SAMi-3 camera, CHL said that she thought BSDY’s consultant paediatrician and neurologist had mentioned the NightWatch and CHL then researched it online. CHL’s understanding was that the NightWatch and Sami-3 were different devices and performed two different functions. She regarded the NightWatch alone as insufficient since it only provided monitoring at night.
The Agency contended the NightWatch was not an NDIS support according to item 5(a) of Schedule 2 of the NDIS Supports Transitional Rules. In addition, it contended that there was no specific evidence regarding this item and that the material CHL provided from the Epilepsy Foundation raised issues with this device. The Agency also noted that BSDY’s occupational therapist reported in the assistive technology form completed in 2024 that seizure monitoring watches were unsuitable for BSDY for reasons including that he may not tolerate something on his wrist.
While I accept that epilepsy monitoring is necessary, I am not satisfied on the available evidence that the NightWatch is necessary, either alone or in addition to the SAMi-3, to address BSDY’s needs arising from BSDY’s impairments that meet the access criteria. That is, I am not satisfied that the requirements in paragraphs 34(1)(aa) of the NDIS Act are met in regard to the NightWatch.
BSDY’s occupational therapist considered various epilepsy monitoring options and recommended the SAMi-3 camera. It can be used during the day and at night. The NightWatch costs almost $3,000 and there is insufficient evidence that the NightWatch is necessary in addition to or in place of the SAMi-3. The only evidence regarding the NightWatch is the evidence contained in the brochure from the Epilepsy Foundation. There is no evidence from an occupational therapist or other professional recommending the NightWatch. Nor is there some other evidence that might have assisted such as evidence from CHL that BSDY has been successfully using the NightWatch and that it met some need that the SAMi-3 did not.
Given the view I have taken that the requirements in paragraph 34(1)(aa) of the NDIS Act are not met, it is not necessary to consider the Agency’s further submission. That is, I have not considered whether the requirements in paragraphs 34(1)(f) of the NDIS Act are also not met on the basis that the NightWatch is not an NDIS support according to item 5(a) of Schedule 2 of the NDIS Supports Transitional Rules, which excludes ‘smart watches’.
For these reasons, I am satisfied that each of the requirements of subsection 34(1) of the NDIS Act are met for the SAMi-3 camera and SleepSure Intermediate Pillow, and that these are reasonable and necessary supports. The requirements are not met for the iPad, router and NightWatch. Together, the SAMi-3 camera and pillow cost about $1,000. The Agency submitted that these items can be funded from existing funding in BSDY’s plan, and that there is no need for additional funding. CHL accepted in her evidence that this was the case. Given the extent to which funding in BSDY’s SOPS is underutilised, I accept the Agency’s submission.
Agreed supports
The parties agreed that the current SOPS should include funding for the following supports that were either not included in the current SOPS or included in a different quantity:
·level 2 support coordination of 24 hours;
·Auslan or signed English training for five hours;
·speech pathology of 34 hours (including 3 hours of report writing and 5 hours of AAC training);
·occupational therapy of 29 hours; and
·physiotherapy of 30 hours.
The parties also agreed that the remaining supports in the current SOPS should be replicated.
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.
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.
1. I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for the decision herein of General Member A Colvin.
.....[SGD]......
Associate
Dates of hearing: 14 and 15 October 2025
Applicant’s representative: CHL (BSDY’s mother)
Solicitor for the Respondent: Mr O’Brien, Moray & Agnew Lawyers
Counsel for the Respondent: Ms C Roberts
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