BTFM and CEO, National Disability Insurance Agency (NDIS)

BTFM and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 2187 (17 October 2025)
Applicant/s:  BTFM
Respondent:  CEO, National Disability Insurance Agency
Tribunal Number:                2024/0317

Tribunal:General Member N Purcell
Place:Sydney
Date:17 October 2025

Decision:The Tribunal, pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth) sets aside the decision under review and remits the matter for reconsideration in accordance with the following orders:

1. The following supports are reasonable and necessary pursuant to section 34 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) and should replace existing supports in the same category:
a.    43 hours of speech therapy per year
b.    25 hours of psychology support per year
c.     36 hours of support coordination (Level 2) per year
d.    90 hours of positive behaviour support per year.
e.    32 hours of occupational therapy per year

2. The following supports are not reasonable and necessary pursuant to section 34 of the NDIS Act and should be removed from the Applicant’s SOPS:
a. 6 hours of support worker assistance

3. All other supports in the Applicant’s current SOPS dated 9 April 2025 excepting any one-off assistive technology supports already used, are to be replicated pro-rata from the date on which the supports specified above are included in the Applicant's SOPS.
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 current plan except for behaviour support funding, which is to be plan managed.
5. The plan should be re-assessed 12 months after the supports specified above are included in the Applicant’s SOPS.

....................[SGD]....................................................
General Member N Purcell
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – originally met access under disability requirements – participant supports –– not satisfied Applicant has substantially reduced functional capacity – satisfied certain supports are necessary to address the needs of Applicant arising from an impairment for which she meets early intervention criteria – behaviour support and plan management – decision set aside.
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.
CASES
Beezley v Repatriation Commission [2015] FCAFC 165
Esber v The Commonwealth (1992) 174 CLR 430
Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency vFoster [2023] FCAFC 11
National Disability Insurance Agency v Jones [2025] FCA 877
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
State Government Insurance Commission v Stevens Brothers Pty. Limited & Anor. [1984] 154 CLR 552
Garcia Albiol and National Disability Insurance Agency [2024] AATA 496
FSWN and National Disability Insurance Agency (NDIS) [2025] ARTA 114
XTHS and National Disability Insurance Agency (NDIS) [2025] ARTA 599
NZGW and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1035
Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607
SECONDARY MATERIALS
Operational Guidelines - Applying to the NDIS – 10 December 2024
Operational Guidelines – Reasonable and Necessary supports, 28 March 2025.
Operational Guidelines – Child Representatives, 28 October 2024.
Statement of Reasons
INTRODUCTION

The Applicant is a 15 year old female who was granted access to the NDIS in May 2023 for autism spectrum disorder (level 2) (ASD). She has also been diagnosed with attention deficit hyperactive disorder (ADHD), a specific learning disorder in relation to written expression and a generalised anxiety disorder.
The Applicant lives with her Father in a suburb of Melbourne and is in year 10 at a local Christian high school. Her parents separated in 2018 when she was about 8 years of age.
The Applicant’s Father is her representative under section 74(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act or the Act). He has sole parental responsibility pursuant to Family Court orders finalised by consent in 2022.
Both the Applicant and the Father are protected by a final family violence intervention order made by the Victorian Magistrates’ Court against the Applicant’s Mother in February 2024.
The Father is a NDIS participant and told the Tribunal he lives with ASD, Post-Traumatic Stress Disorder (PTSD) and Complex PTSD (C-PTSD). He works as an insurance broker and has a Bachelor of Commerce and a Graduate Diploma of Insurance.[1]
[1] JHB1, p201.
Decisions under review
On 27 June 2023, a delegate of the Respondent approved a statement of participant supports (SOPS) under section 33(2) of NDIS Act. On 27 September 2023, the Applicant, through her Father, requested an internal review of the decision under section 100(6) of the Act. On 22 December 2023, a delegate of the Respondent varied the decision under review.
On 10 February 2024, the Applicant filed an application seeking external review by the Administrative Appeals Tribunal (AAT). The AAT was abolished on 13 October 2024 and the Administrative Review Tribunal (ART) began on the 14 October 2024. By virtue of the transitional arrangements, BTFM’s application was automatically transferred to the ART.[2]
[2] See Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).
Since the application was made, further SOPS were approved on 28 March 2024, 18 July 2024 and 9 April 2025 (being the Applicant’s current plan). Pursuant to section 103(2)(e) of the NDIS Act, the Applicant’s application for external review by this Tribunal is also taken to be a review of the decision to approve the SOPS in the current plan.
The application for review involved requests for the following supports, although the number of hours in dispute shifted over the course of the proceedings, discussed below:
(a)Speech therapy
(b)Psychology
(c)Occupational therapy (OT)
(d)Physiotherapy
(e)Support Coordination
(f)Assistive Technology
(g)Positive Behaviour Support
(h)Support worker assistance
(i)Exercise Physiology
(j)Equine therapy
(k)Respite
(l)Dyslexia support
(m)School holiday program
(n)Martial arts / self-defence / swimming support
(o)24 months plan duration
(p)Self-management of behaviour support funding
The hearing
Prior to hearing, the Father received assistance from a barrister to prepare a Statement of Facts, Issues and Contentions. He was not legally represented at hearing. The Respondent was represented by Dr Michael Taylor of Counsel, instructed by Moray and Agnew lawyers.
The hearing was conducted by video over 2 days on the 16 and 17 September 2025.
Prior to hearing, the Respondent offered to arrange and fund an independent functional capacity assessment for the Applicant. The Father declined this offer.
In his closing written submissions dated 1 October 2025, the Father asserted that “the ART determined that [the Applicant] was not required to under an independent assessment in this matter”.[3] The Tribunal played no part in the Father’s decision not to participate in an independent functional capacity which was decided by him prior to the matter being constituted.
[3] See p13.
Procedural fairness and adjustments
In the lead up to hearing, the Father raised concerns about procedural fairness in numerous emails to Registry and the Respondent.
A directions hearing by telephone was held on 29 August 2025 to address the Father’s concerns and respond to several other procedural issues including his request to issue summons and the Respondent’s non-compliance with a direction. The matters discussed can be summarised as follows:
(a)The Respondent filed its Statement of Facts, Issues and Contentions (SOFIC) 3 days after the due date. The Father claimed this would interfere with his ability to brief counsel and prepare for hearing. The Father was unable to provide the name of the legal representative he intended to brief. The Tribunal acknowledged it was not ideal but indicated it would grant a commensurate extension to the Applicant, permitting him to file his SOFIC the day before the hearing.
(b)The Tribunal declined to issue a summons to the Respondent because internal communications between Agency staff are not relevant and would not assist the Tribunal to make the correct or preferable decision. The Tribunal explained that a joint hearing bundle would be prepared by the Respondent prior to hearing which would include all documents filed as part of the proceedings. The Tribunal also called for relevant access documents to be included in the bundle because the Respondent’s lawyer confirmed section 34(1)(aa) was in issue.
(c)The Tribunal explained the hearing process and indicated it could be flexible in the conduct of the proceedings and allow for regular breaks if required. The Tribunal also told the Father it would explain the process again at the start of the hearing, which occurred.
(d)The Father claimed he was disadvantaged by not having witnesses to give oral evidence. The Tribunal explained that there are multiple factors which influence the weight that may be given to different evidence, including documentary evidence. The Tribunal suggested the Father take time to read the Respondent’s SOFIC over the weekend (which was filed later that day) and to consider any potential gaps in evidence and/or whether it might be useful for the Tribunal to hear further explanation or clarification from a treating practitioner. The Tribunal explained it could ask (but not compel) the Respondent to consider covering the reasonable costs of one or two witnesses, and therefore he should identify the most important witnesses that he would like to give evidence.
(e)The Tribunal indicated to the Father that it would like to speak to the Applicant, noting her age and the importance of adolescent participants having a voice in proceedings which affect them. At hearing, the Father told the Tribunal his daughter had declined to participate.
Following the directions hearing, the Tribunal made directions to assist the Father’s preparation for hearing:
The Tribunal vacates the previous directions and directs:
1. On or before 2 September 2025, the Applicant must email the Respondent’s lawyer, providing the names and contact details of the witnesses he would like to call. He must identify 2 or 3 priority witnesses for consideration by the Respondent regarding reasonable cost of attendance, noting witnesses are usually required for about 1 hour and can attend via video or phone.
2. On or before 5 September 2025, the Respondent must give the Applicant and the Tribunal a draft Joint Hearing Bundle (JHB).
3. On or before 10 September 2025, the Applicant must identify and give to the Respondent any documents missing from the JHB that have previously been provided as part of these proceedings.
4. On or before 10 September 2025, the Respondent must give the Applicant and the Tribunal Access records for consideration of matters pursuant to section 34(1)(aa) (if not already included in the JHB).
5. On or before 15 September 2025, the Applicant may give the Respondent and the Tribunal a statement in reply to its Statement of Facts, Issues and Contentions (or advise that no statement will be provided.)
6. On or before 15 September 2025, the Respondent must give the Tribunal a joint witness schedule.
On 2 September 2025, the Father wrote to the Tribunal and the Respondent indicating he would like to call the Applicant’s clinical psychologist, Dr Sally Richmond to give oral evidence.
On 3 September 2025, the Respondent’s legal representative responded, confirming that the Agency would pay reasonable costs of Dr Richmond giving evidence subject to the provision of a quote and offering to liaise with Dr Richmond regarding the timing of her evidence.
On 4 September 2025, the Father wrote again to the Tribunal asking about accommodations that could be made for giving his evidence. He asked whether the Respondent could provide a list of direct, targeted questions prior to hearing.
On 5 September 2025, the Tribunal responded as follows:
Dear Parties,
Member Purcell has considered the matter raised by the Applicant’s representative [Father] in his email dated 4 September 2025.
The Tribunal understands that applicants and their representatives often feel nervous ahead of the final hearing. Part of the Tribunal’s role is to ensure the process is fair, with the applicant and any representative having a reasonable opportunity to engage meaningfully in the process. The Tribunal takes a flexible approach to the conduct of hearings and routinely adjusts the process along the way.
In the Tribunal’s experience, barristers representing the Agency are cognisant that applicants in the NDIS jurisdiction are often not legally represented and are appropriately mindful of procedural fairness. Under section 56(1) of the Administrative Review Tribunal Act (ART Act), the Agency’s representative is required to assist the Tribunal to make the correct or preferable decision by ensuring all relevant information is before it.
The Tribunal will again explain the hearing process at the commencement of the hearing and provide an opportunity for [the Father] to ask questions. However, the Tribunal is not of the view that it is appropriate to direct the Respondent to provide a list of questions prior to hearing.
On 9 September 2025, the Respondent sent the following email to the Father:
Dear [Father], cc Associate to General Member Purcell
I refer to your email below and provide the following information below.
•During the hearing, both the Agency and the Tribunal will be able to ask you questions.
•Questions asked during the hearing will depend on the evidence that you give on the day, as this will be the only evidence that you have given in the proceeding. As such, it is not possible to formulate exact questions in advance.
•It would however be possible to reduce the amount of evidence to be given orally at the hearing if you were to provide a written witness statement filed prior to the hearing. No such statement is currently before the Tribunal.
We would like to offer to draft some questions for you to assist with you filing a written witness statement. Based on the written responses to questions in this witness statement, it may then be possible for the Agency to give you a list of potential topics, rather than exact questions, that may be asked during the hearing, but on the understanding that the Agency is not necessarily limited to those topics because (as explained above) it will also depend on the oral evidence given during the hearing.
Please let me know if you would like me to draft up some targeted questions to help you write a witness statement to assist you with giving evidence at the hearing.
On 9 September 2025, the Applicant responded as follows:
Yes please… kindly send details regarding the potential topics. Of course, however, this doesn’t make the process any more fair or balanced. It doesn’t reduce the adversarial approach you are choosing to take, noting my disabilities (which is just cruel & depraved). Is it that you have instructions to destroy people’s lives – or do you choose to do this yourself? Which is it? Who is responsible when parents / carers, or children [details omitted by Tribunal] – because of your disgraceful approach.
I also await communication from the ART regarding what accommodations can otherwise be provided, because of my disabilities.
On the same day and in multiple separate emails, the Father suggested the Respondent’s lawyer should be criminally charged, has blood on their hands, and is conspiring to destroy the lives of people with disability.
On 12 September 2025, the Father indicated he did not intend to call Dr Richmond to give evidence.
On 16 September 2025, the day before hearing, the Father filed approximately 270 pages of new evidence.
During the hearing, the Father made several serious allegations against the Respondent’s legal representatives, including that they were deliberately misleading the Tribunal, making erroneous submissions and intentionally seeking to cause harm. The manner in which the Father communicated during the hearing were observed to be repeatedly disrespectful, argumentative, personal and abusive. He was offered breaks on several occasions but appeared to avoid taking breaks by interjecting with new questions and arguing his point of view.
At the conclusion of the hearing and whilst reviewing the recording for the purpose of writing this decision, the Tribunal became aware that the Father directed comments at the Respondent’s legal representatives including their families during a technical glitch which resulted in the Tribunal losing connection to the hearing for several minutes.
The Respondent did not object to any of the new material being admitted into evidence despite having limited time to review it. Counsel appropriately updated the Tribunal on utilisation data after receiving the Father’s new evidence. The Respondent acknowledged that prior inferences about the Applicant’s engagement with and/or use of some supports could no longer be maintained because of the new evidence.
Counsel for the Respondent was observed to adopt a scrupulously fair and considered approach to the evidence and interpretation of provisions, upholding his professional obligations as an officer of the Tribunal and his duty to assist the Tribunal pursuant to section 56(1) of the ART Act. The Tribunal finds the allegations against the Respondent’s legal representatives are without foundation. Collectively, they used their best endeavours to assist the Tribunal to make the correct or preferable decision in what can be described as trying circumstances.
At the end of the hearing, the Father claimed he was disadvantaged preparing for oral closing submissions because the Tribunal raised the section 25 issue on the second day of the hearing. The Tribunal observes the Father engaged robustly on this issue in a spontaneous and extended manner. The Tribunal also observes that both parties were aware on the first day of the hearing that the Tribunal intended to proceed to closing submissions on the second day of the hearing in relation to the requested supports and agreed to this approach. Out of an abundance of caution, the Tribunal granted the Father additional time to prepare written closing submissions and made the following directions on 17 September 2025:
1.On or before 1 October 2025, the Applicant’s representative may give the Respondent and the Tribunal final closing written submissions of not more than 8 A4 pages with a font not less than 11 points.
2.Pursuant to section 53 of the Administrative Review Tribunal Act 2024, the Applicant’s representative is not permitted to file or introduce new evidence in closing written submissions and is confined to addressing the evidence before the Tribunal and/or making any legal argument regarding the relevant legal provisions, rules or guidelines in relation to the following:
a.whether the Applicant meets the disability requirements under section 24 or [early intervention requirements under] section 25 of the NDIS Act;
b.        why the following supports are reasonable and necessary:
i.         55 hours of physiotherapy
ii.         $1500 assistive technology
iii.        53 hours of occupational therapy
iv.        12 hours of support worker assistance
v.          school holiday program
vi.          plan duration
vii.self-management and/or plan management of positive behaviour support funding.
3.On or before 1 October 2025, the Applicant must give the Respondent and the Tribunal any cases or decisions regarding management of behaviour support funding that he seeks to rely on in his written submissions.

On 1 October 2025, the Father filed a total of 18 pages of densely spaced written submissions, including 280 endnotes.
On 2 October 2025, the Registry wrote to the parties as follows:
Could the Respondent please indicate on or before 7 October 2025 whether they would like to make any brief written submissions in response to the matters raised by the Applicant in relation to plan management and behaviour support funding.
On 3 October 2025, the Father responded as follows:
Dear, Associate to Member Purcell.
('cc' Ms Thomson)
The Applicant raises procedural concerns in relation to the Tribunal’s recent correspondence inviting the Respondent to file further material.
The Respondent – a well-resourced government agency represented by experienced Counsel – has had a full and fair opportunity to present its case – including on matters concerning behaviour support funding and plan management. Permitting further submissions at this stage would provide an improper opportunity to reargue its case.
The Respondent’s contentions, including those addressed in its closing submissions, have been comprehensively addressed in the Applicant’s written closing submission. Permitting the filing of further material at this stage would constitute a serious procedural error, effectively allowing the Respondent a second opportunity to advance arguments it has already had every chance to present. If the Tribunal is minded to take that course, the Applicant must be afforded a reasonable opportunity to respond.
On 7 October 2025, the Respondent replied as follows:
Dear Associate to General Member Purcell, cc [the Father]
I write in relation to the submissions provided by [the Father] on 2 October 2025. We note that these submissions were 13 pages long despite the Tribunal making clear directions that the submissions were to be limited to 8 pages. We also note that a large number of new cases have been referred to in these submissions not previously put before the Tribunal in this matter.
The Respondent considers that the Tribunal should not have regard to these new cases put forward at this stage of the proceedings except the cases that the Tribunal requested in the current directions dated 18 September 2025 in relation to the plan management issue for behaviour support funding. On this basis the Respondent has prepared a brief reply (attached), which also briefly illustrates the issue with [the Father’s] reliance on further cases (including High Court cases) in support of his other points.
The Respondent notes that the Applicant refers in detail to submissions made by the Respondent’s Counsel and requests that [the Father] confirms that he did not record the hearing proceedings.
As noted above, the Respondent’s position is that the Tribunal should not take into account any of the cases referred to by [the Father] apart from the cases in relation to the plan management issue for behaviour support funding. If the Tribunal was minded to take into account the other cases, the Respondent would seek three weeks to provide a further response noting that this would afford procedural fairness in circumstances where these cases had not previously been referred to by the Applicant.
On 10 October 2025, the Father responded as follows:
Dear Associate to General Member Purcell (‘cc’ Ms Thomson),
I write on behalf of the Applicant in this matter.
I appeared for the Applicant at the Hearing as a non-legally qualified representative; and prepared the closing submissions based on my own research and reading of the case law.
A close review of the Respondent’s supplementary submissions dated 7 October 2025 reveals that they:
•exceed the scope of the Tribunal’s granted leave, discussing matters such as the Applicant’s anxiety and outside school hours care.
•misrepresent the case law advanced by the Applicant, specifically XTHS; & La Perouse;
•introduce new arguments, including supposed value for money issues under section 34(1)(c) and abdication of parental responsibility under section 34(1)(e).
•raise irrelevant matters such as the Applicant’s representative’s capacity to present a cogent, coherent submission.
•raise serious allegations that materially misrepresent and distort the Applicant’s case and prior submissions.
In the interests of justice and procedural fairness, the Applicant respectfully seeks leave for their representative to file brief supplementary submissions in response of no more than 4 A4 pages (font size 11 or larger) on or before, 15 October 2025.
In addition, I also respectfully request that the Tribunal have regard to all cases raised by the Applicant that the Tribunal considers are relevant to its decision.
The Father did not respond to the concern that he may have recorded the proceedings.
On 14 October 2025, the Registry responded to the parties as follows:
Dear Parties,
The Tribunal is satisfied both parties have been afforded a reasonable opportunity to present their case and the Tribunal has sufficient information to make a decision.
Later the same day, the Applicant responded:
Dear, Associate to General Member Purcell (cc: Ms Thomson)
Dear, General Member Purcell
I write in my capacity as the representative of my daughter, [the Applicant] in these proceedings.
Further to my email of 10 October 2025, I note the Respondent’s 7 October submissions exceed their leave, introduce new arguments, and do not fairly or accurately represent several key matters.
As a matter of fairness, I respectfully seek leave to file brief (4 pages) supplementary submissions, ready to file within 12 hours of leave. They address the new matters and assist the Tribunal in reaching the correct and preferable decision.
The Tribunal is satisfied that both parties have been afforded a reasonable opportunity to present their case. The Tribunal does not consider the references to additional case law will assist in properly determining this matter.
In arriving at its decision, the Tribunal has considered the written evidence provided in the joint hearing bundle (admitted and marked ‘JHB1’) and a supplementary hearing bundle (admitted and marked ‘JHB2’). The following documents were also admitted into evidence:
(a)E1 – Final Family Violence Intervention Order, protecting the Applicant and her Father
(b)E2 – Final Parenting Orders of the Federal Circuit and Family Court, dated 10 October 2022
(c)E3 – Psychological assessment and reported by Ms Dimitra Arthur dated February 2016
(d)E4 – Applicant’s response to the Respondent’s Statement of Facts, Issues and Contentions, prepared by Ms Catherine Jones Williams of Counsel, dated 12 September 2025
(e)E5 – Provisional school report dated 16 September 2025
(f)E6 – Applicant’s written closing submissions dated 1 October 2025.
(g)E7 – Respondent’s written closing submissions dated 7 October 2025.
Issues in dispute
As a result of the new evidence filed on the eve of the hearing, the Respondent updated its position during the hearing and submitted that for the purposes of section 34(1)(aa), it may be open to the Tribunal to be satisfied that the Applicant has substantially reduced functional capacity in the activity of social interaction (section 24(1)(c)). The Respondent contended the following supports were reasonable and necessary on this basis:
(a)Speech therapy – 43 hours per year (including 6 hours report writing and/or liaison with other treating practitioners)
(b)Psychology support – 25 hours per year
(c)Level 2 Support Coordination – 36 hours per year
(d)Positive Behaviour Support – 90 hours per year
(e)Occupational Therapy (OT) – 32 hours per year (including 6 hours report writing and/or liaison with other treating practitioners)
(f)4 hours per week of support worker assistance
(g)$750 for low-cost assistive technology
The Father agreed to 43 hours of speech therapy, 25 hours of psychology, 36 hours of support coordination and 90 hours of positive behaviour support during the hearing.
The Father did not agree with the offer of 32 hours of OT, 4 hours of support worker assistance per week and $750 for low-cost assistive technology. Therefore, these issues remained in dispute.
The Tribunal is satisfied that the supports agreed to by the parties at paragraphs 41(a) to (d) are reasonable and necessary. However, for reasons which are discussed in greater detail below, the Tribunal considers section 34(1)(aa) is met by the Applicant meeting the early intervention requirements pursuant to section 25, rather than the disability requirements under section 24.
During the hearing, the Father withdrew his request for:
(a)Exercise physiology – 20 hours per year
(b)Equine therapy – 28 hours per year
(c)Respite – 42 days per year
(d)Weekly dyslexia support
(e)Martial arts/self-defence and/or swimming
Accordingly, the Tribunal was required to determine whether the following disputed supports are reasonable and necessary pursuant to section 34 of the NDIS Act and any relevant rules.
(a)Physiotherapy – 55 hours per year
(b)Occupational therapy – 53 hours per year
(c)Support worker assistance – 12 hours per week
(d)Assistive Technology - $1500 per year
(e)School holiday program – 50 hours per year
(f)Plan duration of 24 months
(g)Plan or self-management of Behaviour Support funding.
Role of the Tribunal
In reviewing the decision:
(a)the Tribunal stands in the shoes of the delegate/internal reviewer and must make the correct or preferable decision based upon the evidence and other material before it;[4] and
(b)the scope of the Tribunal’s jurisdiction is determined by reference to the scope of the internal reviewer’s powers under section 100 of the NDIS Act, which is in turn informed by the scope of power under section 33(2) of the NDIS Act.[5]
[4] See Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [37]-[38], [45]-[46] (Kirby J), [99] (Hayne and Heydon JJ), [143] (Kiefel J). Esber v The Commonwealth (1992) 174 CLR 430 at 440; Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250 at [51]; QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.
[5] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 at [7].
The relevant provisions under the new Administrative Review Tribunal Act 2024 (Cth) (ART Act) are sections 54 and 105.
RELEVANT LAW
An overview of the relevant law has been set out at Annexure A and should be read in conjunction with the reasons for decision.
EVIDENCE AND SUBMISSIONS RE SECTION 34(1)(AA)
Access and disability requirements
Under section 34(1)(aa), the Tribunal is required to determine whether a requested support is necessary to address the needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (s 24) or early intervention requirements (s 25). It is therefore useful to consider how the Applicant met access in 2023.
Dr Lei Gryffydd, clinical neuropsychologist, diagnosed the Applicant with ASD Level 2 in a report dated 25 March 2023.
Neuropsychological testing revealed intellectual abilities in the average range. New learning and memory were within normal limits. She exhibited executive functioning difficulties in a range of areas, including planning and organisation, attention to detail, cognitive flexibility/switching of attention and inhibition/response suppression. The neuropsychological assessment also included test of academic achievement. [The Applicant] performed in the expected range for basic reading and mathematics. Her performances on tests of phonological decoding, sentence composition and spelling were significantly lower than expected.
Based on the information gathered, performance on the ADOS-2 observational assessment and neuropsychological testing, [the Applicant] satisfies the DSM-5-TR diagnostic criteria for Autism Spectrum Disorder. There is clear evidence of symptoms and behaviours associated with ASD in her early development and throughout her childhood. The severity of ASD is Level 2 requiring substantial support in both social communication and restricted and repetitive behaviours. This condition is permanent and significantly impacts [the Applicant’s] ability to function at home, at school and participate in daily activities. It cannot be explained by the presence of a co-morbid condition, such as ADHD.
With respect to academic performance and learning, [the Applicant] satisfies the DSM-5-TR diagnostic criteria for a Specific Learning Disorder, with impairments in written expression (spelling, grammar, and punctuation accuracy and clarify or organisation of written expression). Despite the provision of targeted interventions, she exhibits difficulties with spelling and written expression that are statistically lower than expected compared to her intellectual abilities. They have a significant impact on her academic performance and cannot be explained by other factors (e.g., intellectual abilities, another condition such as ASD or ADHD, psychosocial adversity, lack of proficiency in the language or inadequate educational instruction.[6]
[6] JHB1, p 206.
Despite the body of the report focusing on the need for the Applicant to obtain supports in relation to social communication because of her ASD, Dr Gryffydd recommended supports across all six of the activity domains under section 24 of the Act. The Applicant’s “areas of impairments” were described as follows:
Social interaction: [The Applicant] has significant social communication difficulties which result in noticeable impairments. Without substantial support, she is unable to navigate social interactions, maintain friendships, interact with the community and cope in a social context, including at home.
Self-management: [The Applicant’s] ability to organise, plan, manage and make decisions involved in everyday life are impaired.
Self-care: Compared to other young people their age, [the Applicant’s] ability to care for herself is reduced. She requires substantial assistance from her father to perform basic activities of daily living.
Communication: [The Applicant] has significant communication impairments, including being understood, understanding others, expressing their needs and appropriate communication.
Learning: Although [the Applicant] is capable of learning and retaining new information with direct instruction, her ASD symptoms impact her learning. This is having a significant impact on her academic performance at school and further decline is expected without substantial support.
Mobility: [The Applicant] has difficulty navigating their environment and is prone to injuries. As such, her ability to safely ambulate around her environment is reduced and puts her at risk of serious injury.[7]
[7] JHB1, p207-208.
In an ‘Evidence of psychosocial disability form’ dated 15 August 2023, the Applicant’s mental health social worker wrote “no issues” with mobility.[8]
[8] JHB1, p133.
In a further ‘Evidence of psychosocial disability form’ dated 3 October 2023, the Applicant’s treating paediatrician Dr Simon Costello indicated the Applicant experiences impairments associated with social interaction and self-management.[9]
[9] JHB1, p245.
The Tribunal places limited weight on Dr Gryffydd’s report for the purpose of assessing functional capacity because it appears to have been completed based on a misapprehension that a person must have substantial reduction in functional capacity across all the 6 activity domains. This, of course, is not required by section 24. Dr Gryffydd’s view that the Applicant is at risk of serious injury owing to the impact of ASD on her mobility, causes the Tribunal to question the veracity of the opinions as they pertain to functional capacity more generally.
Dr Gryffydd did not provide details of how the neurological impairments manifests; rather making broad statements or conclusions such as the Applicant “requires substantial assistance from her father to perform basic activities of daily living” and “has significant communication impairments, including being understood, understanding others, expressing their needs and appropriate communication”.[10]
[10] It is noted from the other evidence that the Applicant does not use they/them pronouns.
Counsel for the Respondent acknowledged that while Dr Gryffdd’s was attempting to diagnose the issue and then provide help by recommending supports – which is perfectly acceptable from clinical perspective, they did not include sufficient explanation or analysis about how the impairment results in reduced functional capacity. Notably, Dr Gryfford’s report did not refer to behaviours of concern or significant emotional dysregulation. The Tribunal observes that emotional dysregulation appears to be causing considerable distress to the Applicant and is, in part, a justification for many of the requested supports.
The Tribunal acknowledges that these matters might have been clarified or explained further in oral evidence, however Dr Gryffydd was not called by the Father to give evidence.
Simply put, Dr Gryffydd’s report does not provide sufficient detail about what the Applicant could and couldn’t do at the time of the assessment for the Tribunal to be satisfied that her neurological and/or cognitive impairment results in substantially reduced functional capacity in any of the six domains, then or now.
The Applicant’s access request form noted she had substantially reduced functional capacity in each activity.[11] Respondent’s records seemingly do not clearly indicate how the delegate decided she met 24(1)(c) at the time of access. The Respondent submitted that Autism appears as a ‘List B’ condition in the Access Guidelines which refers to ‘Conditions that are likely to result in a permanent impairment’. The guideline refers to Autism as a condition “primarily resulting in intellectual or learning impairment”.[12] List B does not refer to functional capacity or the degree of any reduction in capacity.
[11] R1 of JHB1, p393.
[12] Applying to the NDIS – operational guideline, 10 December 2024, p34.
The Tribunal observes guidelines do not replace statutory requirements, with a positive finding required for each component of section 24(1).[13]
[13] See National Disability Insurance Agency v Foster [2023] FCAFC 11 at [62].
For completeness, it is unclear whether Dr Gryffydd considered the specific learning disorder resulted in a permanent impairment and/or substantially reduced functional capacity. It is also unclear to the Tribunal whether the disorder is completely unrelated to the Applicant’s ASD and/or what sort of treatment options are available. The Tribunal is satisfied the Applicant has an impairment, most likely neurological or cognitive, which manifests as a specific learning disorder, however it is not satisfied on the evidence that the impairment is permanent or likely to be permanent pursuant to section 24(1)(b) or 25(1)(a)(i) or that it results in substantially reduced functional capacity under section 24(1)(c).[14]
[14] See A2 of JHB1, p326 – 330. Speech therapist Ms Martha Cooke suggests speech therapy interventions have resulted in the Applicant improving her confidence with written expression and that significant gains can be made through continued therapy.
Prior reports and diagnosis
Psychologist Ms Dimitra Arthur completed an assessment with the Applicant when she was 6 years old. In her 2016 report, Ms Arthur noted the Applicant’s parents reported delay achieving developmental milestones including speech, motor skills and social skills but was otherwise in good health.[15] Ms Arthur conducted a number of assessments including the Wechsler Intelligence Scale of Children – 4^th edition, the Vineland Adaptive Behaviour Scale and the Childhood Autism Rating Scale – 2^nd Edition, High Functioning Version. She concluded the Applicant’s “behaviour falls within the Mild Symptoms of Autism Spectrum, with a total score of 28, which places her on the 21^st percentile”.[16] She also diagnosed the Applicant with mild Generalised Anxiety Disorder and provided the following summary:
[The Applicant is a 6-year, 1-month-old girl with Average cognitive abilities and Mild-to-Moderate symptoms of Autism Spectrum Disorder. Based on these results, [the Applicant’s] only relative weakness is in her processing speed, which is a cognitive ability that provides a critical foundation for learning and automating procedural and conceptual information.[17]
[15] E3, Report of Ms Dimitra Arthur, p1.
[16] E3, Report of Dimitra Arthur, p8.
[17] E3, Report of Dimitra Arthur, p9.

Paediatrician, Dr Costello referred the Applicant to a second psychologist Ms Ilona Bell for assessment and opinion in the context of ongoing behavioural and learning difficulties. Ms Bell conducted the first assessment with the Applicant when she was 7.[18] She conducted a second assessment, over five sessions, when the Applicant was aged 8 years and 8 months old.[19]
[18] JHB1, p262
[19] JHB1, p272.
Ms Bell’s assessments received notably less attention at hearing, although the second report paints a more complex picture of the Applicant’s circumstances at the time. The timing of this assessment is significant because it corresponds with the separation of the Applicant’s parents in October 2018. The Tribunal observes the Applicant appears to have been exposed to significant upheaval and emotional stress both during and since that time including the Mother’s sudden relocation to Queensland and then regional Victoria in August 2020, the parents’ divorce proceedings in May 2021[20], the Family Court parenting proceedings resulting in consent orders in October 2022 and family violence proceedings in the Victorian Magistrates’ Court in 2024.
[20] JHB1, p91-92.
The Father noted in an undated statement to the Respondent “the temporal correlation” between the Applicant’s behaviours and her exposure to the Mother’s family violence.[21]
[21] JHB1, p91.
Ms Bell noted that while the Applicant presents with behaviour problems, “her anxiety is reported to be ‘over the top’.” Ms Bell observed the Applicant to have a very high activity level – constantly moving and excessively fast speech – however she did not display repetitive motor mannerisms, adherence to routine or resistance to change, she did not engage in repetitive use of objects and did not have sensory sensitivities.[22]
[22] JHB1, p271-272.
The Applicant’s school teacher at the time expressed significant concerns about the Applicant’s “inability to self-regulate, she is highly manipulative and dominates the learning space with negative behaviour. She is very impulsive and disruptive to the class… With a constant roller coaster of emotions on a daily basis”.[23] The Applicant was also reported to be ‘highly anxious, worries and has a number of fears”.[24]
[23] JHB1, p272.
[24] JHB1, p272.
Ms Bell found that the Applicant’s overall processing speed was typical for her age (45^th percentile) but she had a weaker working memory, which means she may have difficulty holding and manipulating information in her mind. “Given that her functional working memory skills are likely to be even weaker in a busy classroom setting, this is likely to impact her ability to take in, process and recall information and instructions as well as her acquisition of literacy and numeracy skills”.[25] Ms Bell further found that the Applicant demonstrates significant difficulties in her overall reading abilities (12^th percentile), written language (6^th percentile), and mathematical ability (13^th percentile) which have persisted despite interventions and supports at school over 3.5 years. She considered the difficulties were sufficient to warrant a diagnosis of Specific Learning Disorder with impairment in reading, written language, and mathematics.[26]
[25] JHB1, p274.
[26] JHB1, p274.
Ms Bell conducted a behaviour assessment with the Applicant’s parents and teacher. She found:
On the DSM-oriented scales, [the Applicant] scored in the clinical range for anxiety and attention deficit/hyperactivity problems at both home and school. At school, clinical range oppositional behaviour and conduct problems, and borderline affective problems are also reported, while at home [the Applicant] also presents with borderline somatic problems, oppositional behaviour and conduct problems.[27]
[27] JHB1, p275.
Ms Bell was less sure of ASD, noting that while the Applicant scores above the cut-off for ASD on parent and teacher questionnaires, her performance on the ADOS-2 and general presentation in the clinic does not support such a diagnosis.[28] She recommended a trial of ADHD medication, improved sleeping habits and the implementation of consistent parenting strategies before re-considering an ASD diagnosis.[29]
[28] JHB1, p277.
[29] JHB1, p277.
Dr Richmond’s evidence
On 13 June 2025, treating clinical psychologist Dr Sally Richmond wrote the following letter to the Respondent:
I am a clinical psychologist who has been supporting [the Applicant] since December 2024 under NDIS funding. I have seen [the Applicant] for 6 sessions with 1 additional ‘parent only’ session with [the Applicant’s father]. This letter of recommendation for increased psychological support is to be read in conjunction with previous assessment reports and the NDIS ‘Evidence of psychosocial disability form’.
As outlined in the aforementioned ‘Evidence of psychosocial disability form’: [the Applicant] experiences symptoms of anxiety (documented from 2016, refer to assessment report from psychologist Ms Dimitra Arthur) in the context of multiple neurodevelopmental disorders, including Autism and ADHD. [The Applicant’s] anxiety symptoms compound her level impairment, across the domains of social interaction, self-management, self-care, communication and learning beyond what would be expected for Autism alone.[30] (Tribunal’s emphasis)
[30] JHB1, p376.
In the attached ‘evidence of psychosocial disability form’ (undated), Dr Richmond provided a summary of the diagnosis discussed above.[31] She added to the form “borderline clinical to clinical elevations of depressive and anxiety symptoms” using the Revised Child Anxiety and Depression Scale.[32] She noted that at the time of completing the form she had only conducted 6 sessions with the Applicant and was providing ongoing cognitive behavioural therapy modified for comorbid Autism, ADHD and specific learning disorder. Dr Richmond observed “bi-directional links between [the Applicant’s] anxiety and her other permanent, neurodevelopmental conditions”. She opined it likely that “impairments due to anxiety will not be resolved with evidence based treatment” but was also “unsure” about the effectiveness of treatment.[33]
[31] The Tribunal considers it likely this was prepared around April 2025, having reviewed psychology appointments at A56 of JHB2.
[32] JHB1, p379.
[33] JHB1, p385.
The Tribunal considers these opinions were expressed very early in the treatment process and for the purpose of supporting the Applicant’s request for additional NDIS supports. There appears to be an inherent uncertainty or contradiction to the opinions expressed by Dr Richmond about the treatment and therefore whether the anxiety can be considered permanent within the meaning of Rule 5.4 of the Access Rules. Again, such uncertainty might have been resolved had the Tribunal heard directly from Dr Richmond, noting she has had significantly more sessions with the Applicant since.[34]
[34] See A56 of JHB2.
The Father repeatedly asserted that the Applicant does not have ‘stand-alone’ anxiety and that it must be considered part of the Applicant’s ASD condition. His contention was that because ASD is a permanent condition, any associated anxiety must also be considered permanent.
However, as Senior Member French recently stated in Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607 (footnotes omitted):
[24] In the context of s 24(1)(a), and Chapter 3 of the NDIS Act more generally, the term “disability” has a specific meaning, being a functional outcome that is attributable to specified categories of impairment. The concept of impairment is distinct from the concept of ‘disability’, and from a diagnosed health condition. Care needs to be taken not to conflate these separate concepts or use them interchangeably. Failure to maintain this conceptual distinction may lead to a misapplication of the access provisions.
[25] The term ‘impairment’ is not defined in the NDIS Act. However, the Agency’s operational guidelines define it to mean “a loss of or damage to your body’s function”. I note that this conceptualisation of impairment for the purposes of s 24(1) was specifically approved by the Court in Davis. That definition is a simple rendering of the definition of impairment[35] used in the application of the International Classification of Functioning Disability and Health (ICF), which is “a problem of body function or structure such as a significant deviation or loss as compared with typical or expected function or structure”. (Tribunal’s emphasis)
[35] World Health Organisation (2002), Towards a Common Language for Disability, Functioning and Health, ICF, Geneva, WHO/EIP/GPE/CAS/0.1.3 (WHO (2002) at page 2.
The Tribunal observes that any distinction between a diagnosis of generalised anxiety disorder causing anxiety and a diagnosis of ASD which includes or causes anxiety does not alter the fact that the impairment in both scenarios is anxiety.
The medical evidence supports the conclusion that the Applicant has been diagnosed with generalised anxiety disorder which is a separate condition. Ultimately, whether the anxiety flows from ASD and/or generalised anxiety disorder does not alter the fact that the Tribunal is not satisfied on the evidence that there are no known, available and appropriate evidence-based clinical, medical or other treatments likely to remedy the impairment. The Tribunal finds the Applicant’s anxiety is not a permanent impairment pursuant to section 24(1)(b) or section 25(1)(a).
In its SOFIC, the Respondent contended:
21… the recent report by Dr Richmond has substantially altered the proceeding such that, in the absence of further evidence regarding the Applicant’s impairments, the Tribunal cannot be positively satisfied of the Applicant’s s 34(1)(aa) disability support needs.
22. As set out below:
a. Dr Richmond’s opinion is that the Applicant’s anxiety compounds her ASD2-related impairments; and
b. the effect of Dr Richmond’s opinion is that the Applicant’s s 34(1)(aa) disability support needs are now uncertain.[36]
[36] JHB1, p516.
The Respondent made further contentions regarding the operation of section 34(1)(aa) as follows (footnotes omitted):
30. Applied to the circumstances of this case, the Respondent contends that the effect of s 34(1)(aa) is as follows:
a. under s 34(1)(aa), the Applicant’s disability support needs can only arise from impairments in relation to which the Applicant meets the s 24(1) disability requirements, where:
i. the time at which the Applicant must meet the s 24 disability requirements is the time at which the SOPS is approved—in other words, when the Tribunal decides on the SOPS, rather than historically at the time of NDIS access; and
ii. the Applicant’s s 34(1)(aa) disability support needs “may be affected by a variety of factors” including “the impact of another impairment in relation to which [the Applicant] does not meet the [s 24 requirements]—in other words, while non-s 24 impairments may affect s 34(1)(aa) disability support needs, they cannot give rise to such needs.
b. Dr Richmond’s report indicates that the Applicant is currently being treated for her anxiety related impairments, and Dr Richmond is unsure of the effectiveness of this treatment (presumably due to treatment being in its early stages). As such, the Applicant’s anxiety related impairments:
i. cannot meet the s 24(1) disability requirements because a known, available and appropriate evidence-based treatment is currently underway and at an early stage (i.e., the s 24(1)(b) permanency criterion is not satisfied); and
ii. cannot give rise to s 34(1)(aa) disability support needs because the s 24(1)(b) issue.
c. Dr Richmond’s report also indicates that the Applicant’s anxiety-related impairments contribute to her reduced functional capacity for five of the six s 24(1)(c) activities and do so either in addition to, or in conjunction with, her ASD2- and ADHD-related impairments. As such, it is now uncertain as to whether the Applicant’s ASD2 -related impairments independently satisfy s 24(1)(c) because s 24(1)(b) focuses the s 24(1)(c) exercise on permanent impairments (i.e., substantially reduced functional capacity under s 24(1)(c) cannot be the result of non-permanent impairments).
d. by reason of the s 24(1)(c) uncertainty, and in the absence of further current evidence as to the relative contribution of the Applicant’s impairments to reductions in her functional capacity, the Tribunal cannot be positively satisfied of the Applicant’s s 34(1)(aa) disability support needs until such time that further evidence can established whether she currently meets the s 24 disability requirements.
e. if the Tribunal cannot be positively satisfied of the Applicant’s s 34(1)(aa) disability support needs, the inevitable effect of that finding is that no supports are reasonable and necessary under s 34(1).
31. For the avoidance of doubt, the Respondent contends that:
a. the above effect of s 34(1)(aa) was brought about by the Applicant through Dr Richmond’s report, as this evidence significantly changed the current understanding of the Applicant’s disability support needs;
b. at this point, the only evidence capable of:
i. re-establishing whether the Applicant’s ASD2-related impairments currently satisfy the s 24(1) disability requirements; and/or
ii. establishing whether the Applicant’s ASD2- and GAD-related impairments currently satisfy the s 24(1) disability requirements,
is an independent assessment of the Applicant by a psychiatrist and/or an other relevant practitioner such as a paediatrician; and
c. in the absence of such evidence, Dr Richmond’s report stands as the most contemporaneous evidence for the ss 24(1) and 34(1)(aa) issues.[37]
[37] JHB1, p517-518.
The Applicant made the following contentions in response (footnotes omitted):
12. It is the Applicant’s understanding that the Respondent regards Dr Richmond’s evidence as raising the following concerns about [the Applicant’s access to the NDIS and the assessment of what are reasonable and necessary supports:
12.1 that it creates uncertainty about the Applicant’s current disability status and places her access to the NDIS in jeopardy without further evidence being obtained;
12.2 that it requires the Applicant to undergo an independent assessment to clarify what her disability is in the context of her ASD2 and anxiety related impairments, and which (if any) of these now forms the basis for access to the NDIS; and
12.3 that further evidence is required to establish the correlation between the Applicant’s disability and the requested supports, as required by S34(1)(aa) of the Act.
13. The Applicant contends that, on the evidence, it is appropriate for the Tribunal to evaluate the Applicant’s requested supports in the context of her established diagnosis of ASD2 – her primary disability and the basis for her access to the Scheme In 2023.
14. The report of Dr Richmond simply provides a chronology and further context for understanding the evolution of the Applicant’s symptomology and the interaction between her ASD2 and anxiety conditions which are inexorably linked.
15. It does not provide any basis for overturning the Applicant’s current access to the Scheme nor should it alter the “prism” through which the Applicant’s impairments are viewed and understood.
16. It is noted that the Applicant’s father instructs that the use of the Psychosocial disability form was simply to collate the Applicant’s anxiety symptoms and not to set up a separate disability.
17. The reference by Dr Richmond to earlier psychological assessments and [the Applicant’s] historic diagnosis of “generalised anxiety disorder” ought to be viewed in its proper context. These assessments are significantly dated, having occurred when [the Applicant] was much younger. Importantly, they pre-date her 2023 formal ASD2 diagnosis which seems to have brought together her complex symptomology into a unifying diagnosis.
18. The evidence of Dr Richmond ought not be considered in isolation, but rather together with the evidence of Clinical Neuropsychologist, Dr Lei Gryffydd who notes:
“There is clear evidence of symptoms and behaviours associated with ASD in her early development and throughout her childhood.
19. It is plain from Dr Richmond’s report that she regards [the Applicant’s] anxiety as occurring “in the context of multiple neurodevelopmental disorders, and in particular her permanent ASD2 condition”.[38]
…
[38] E4.
Applicant’s other evidence at hearing
The Father did not provide any explanation as to why he filed such a significant volume of material only one day prior to hearing, noting his earlier concerns about procedural fairness.
Several records from the Applicant’s school demonstrate ongoing difficulties and challenges in the school environment including:
(a)Repeatedly flipping scissors and being argumentative in class – October 2023.[39]
[39] A18 of JHB2, p661.
(b)Swearing and “can get physical” when she becomes heightened – December 2023.[40]
(c)Swearing at teachers, leaving the grounds while on excursions and refusing to hand over scissors taken on excursion – February 2024.[41]
(d)Barged into a staff boardroom meeting while screaming and swearing and told the principal to “F#@k off” – February 2024.[42]
(e)Refused to hand over her phone, swore at staff and headed towards school gates as though intending to leave. Five staff required to manage situation – March 2024.[43]
(f)Contacted her Mother and met her without Father’s permission. School staff informed the Applicant they would need to inform her Father which “enraged her”. She swore and screamed at staff, students and principal and hit her head against toilet wall – May 2024.[44]
(g)Worsening behaviour in the context of not sleeping due to late night laptop use – December 2024.[45]
(h)Upset during food technology class but walked around campus to reset. Presented as very tired and looked quite sad. She rested, had lunch, and then decided to attend Maths and English. Commended by teacher for showing resilience – March 2025.[46]
(i)Not completing course work anywhere near Year 10 standard – May 2025.[47]
(j)Father in the process of “trying to implement some ‘behind the scenes’ supports for [the Applicant], to maximise her potential. One such thing that is being worked through is a reward for [the Applicant], should she attain a pre-agreed grade” – May 2025.[48]
(k)Attended camp and “did an amazing job extending her ‘stretch zone’ to complete some challenging activities” – August 2025.[49]
[40] JHB2, p663.
[41] JHB2, p664.
[42] JHB2, p666.
[43] JHB2, p674.
[44] JHB2, p806.
[45] JHB2, p810.
[46] JHB2, p817.
[47] JHB2, p827.
[48] JHB2, p828.
[49] JHB2, p831.
The Tribunal places significant weight on the school records because they were contemporaneous, relatively objective and were not produced for the purpose of the hearing. They provide a unique insight into the level of apparent distress and anger exhibited by the Applicant at school, particularly in 2024.
A concerning incident recently occurred while the Applicant was on school camp (from 11 – 15 August 2025). The Tribunal makes no findings about what occurred but accepts there was a considerable fall-out between the Applicant and her friends in the aftermath. It also resulted in the Applicant being suspended for 3 days. It is alleged the Applicant:
-was licking / kissing her socks, then shoving them into the face of others.
-was cuddling a girl from behind, making sexual remarks.
-slapped the bum of a girl.
-was puckering up to other girls.
-pushed a girl up against the wall and tried to kiss her.
-engaging in various sexualised behaviours.
-was excluded from her cabin. [The Applicant] then locked herself in the bathroom and wrote obscenities on the wall – in permanent marker – remarks such as “F&*K [student name]”
-tried to apologise.[50]
[50] JHB2, p833.

On 18 August 2025, the school emailed the Father wanting to discuss the incident but did not disclose details. When the Father queried with the Applicant whether anything happened at camp, she is alleged to have said ‘none of your business’.[51]
[51] JHB2, p831 and 837.
On 20 August 2025, the Father had an in-confidence conversation with the parent of one of the Applicant’s friends. She disclosed the Applicant had apparently laid on top of one of the girls, pinned her down and attempted to take the girl’s clothes off.[52]
[52] JHB2, p838.
On 21 August 2025, the school emailed the Father about a message the Applicant had sent to a friend following the camp incident.
In the message, [the Applicant] was very clearly feeling angry and hurt, and using very concerning language to express this. She wrote words such as ‘Goodbye’, ‘I hate my life’, ‘I should just kill myself’ and ‘I hit myself every day trying to control myself’. We are all very worried about her, as the breakdown in her friendships is a significant loss of support people in [the Applicant’s] world. She also used quite threatening language towards her friend in the message, and was swearing at her.[53]
[53] JHB2, p832.
The same day, the Father arranged an appointment with the Applicant’s paediatrician and her prescription of fluoxetine was increased to 2 x 20mg per day.[54]
[54] JHB2, p838.
On 5 September 2025, the Applicant’s behaviour support practitioner wrote:
The identified challenges and risk factors include challenging family dynamic including domestic violence and custody issues, and ongoing fatigue and mental health challenges which affect her day to day. For [the Applicant], this may present as verbal outbursts, property damage, social withdrawal, reduction initiation for daily tasks and physical self-harm, which impact the ability to achieve the gaols outined in [her] NDIS plan.[55]
[55] JHB2, p853.
The issue of self-harm appears to have emerged over the last couple of years. Dr Gryffydd noted in March 2023:
On a self-report questionnaire, [the Applicant] reported symptoms of depression, anxiety and stress in the non-clinical range. She reported experiencing a moderate level of psychological distress, with thoughts of self-harm.[56]
[56] JHB1, p205-206.
The most recent functional capacity assessment was completed in September 2023 by OT Ms Taylah Douglass for the purpose of identifying relevant supports. Ms Douglass reported the Applicant “experiences heightened sense of anxiety, fear and panic, and has recently reported symptoms consistent with panic attack and hallucination, which should be further explored by an appropriate psychologist/psychiatrist”.[57]
[57] JHB1, p51.
Ms Douglass conducted part of her assessment at the Applicant’s school. She observed the Applicant socialising with three female peers before class but noted she had difficulties recognising social cues and interrupted her friend’s discussion to tell them that the therapist was there for her. She opined the Applicant would benefit from ongoing speech pathology to support her expressive and receptive communication and ability to read social cues.[58] It was noted the Applicant was friendly, engaged in conversation and participated appropriately in the assessment.[59]
[58] JHB1, p66.
[59] JHB1, p72.
Ms Douglass observed the Applicant having trouble focusing on and engaging with her school work. She concluded the Applicant is having “difficulties with attention, task initiation, receptive understanding and problem solving”.[60] Her attention is reported to fluctuate depending on personal and environmental factors including whether she is engaging in a non-preferred task.[61]
[60] JHB1, p65.
[61] JHB1, p73.
Ms Douglass reports the Applicant is “able to mobilise around her home and community independently and engage in play and other physical activities”. She was observed to complete transfers and walk around her school environment without notable difficulties.[62]
[62] JHB1, p58-59.
Ms Douglass also reported the Applicant is physically able to dress herself but takes a longer time because she has difficulties selecting clothes and manipulating buttons, zips and shoelaces.[63] She showers and grooms independently but requires daily prompting. The Father reported urine incontinence and lightly soiled underpants at the time[64] but was unsure how the Applicant managed her periods. The Applicant was reported to eat a range of foods, didn’t have significant food intolerances, and used cutlery independently.[65] She was reported to stay up late on her laptop which interrupted her sleep.
[63] JHB1, p59.
[64] JHB1, p61.
[65] JHB1, p61.
With respect to self-management, Ms Douglass opined that the Applicant requires a high level of adult support for activities that require any level of planning and organisation. She indicated the Father manages appointments, monitors school work and prompts morning routine. At the time, the Applicant had initiated calling her grandparents and then ‘Nurse on Call’ after feeling unwell. Ms Douglass concluded the Applicant had average problem-solving skills.
The Applicant attended a total of 19 speech therapy sessions between January 2024 and February 2025. She did not attend any sessions between April and October 2024.[66]
[66] JHB2, p813.
The Father told the Tribunal that one of the Applicant’s friends recently had a sleepover at their home, however this does not occur regularly. He believes other students are spending time together outside of school but do not invite the Applicant. The Father indicated the Applicant was recently involved in a school production, mainly doing backstage type tasks, although he did not provide detailed evidence about the schedule or commitment required to participate. The Applicant also attended her school formal in recent months. The Father indicated this was successful, but he did not elaborate or provide any additional details.
In an undated statement of carer experience, the Father wrote:
As an only child, [the Applicant’s] social circle is relatively small, and the limited time she spends with her mother is punctuated by geographical distance and the history of family violence. [The Applicant’s] interactions with her maternal grandparents and our Friday nights with my parents offer a semblance of informal support, yet most caregiving responsibilities continue to rest on my shoulders; and it’s impractical to ask more of my parents.[67]
[67] JHB1, p92.
He also wrote:
[The Applicant’s] daily life is marked by, heightened anxiety, depressed mood; various sensory sensitivities; and impulse control. Access to NDIS-funded therapies and interventions, such as sensory integration therapy; and cognitive behavioural therapy; and physiology would provide her with coping mechanisms to self-manage her challenges more effectively. Moreover, therapeutic support could equip [the Applicant] with strategies to navigate social interactions, communication hurdles, and emotional regulation, leading to increased independence and improved overall well-being.[68] (Tribunal’s emphasis)
[68] JHB1, p94. See also A55 of JHB2.
In addition to considering the matters raised by the Father in his carer statements and oral evidence, the Tribunal places significant evidentiary weight on the Father’s behaviour during these proceedings. The Tribunal infers the Applicant has likely been exposed to a dysregulated communication style throughout her childhood, particularly during parental conflict, which may be contributing to some of her current difficulties.
CONSIDERATION RE SECTIONS 24 OR 25
Section 24
Under section 24 of the Act, the Tribunal must be satisfied that the Applicant has a disability that is attributable to a neurological and/or cognitive impairment (in this case, arising from the condition of ASD), that the impairment is or is likely to be permanent and that it results in substantially reduced functional capacity. In that sense, the permanent impairment must be said to cause the substantial reduction in functional capacity under at least one of the relevant activities.
The Tribunal accepts that the Applicant has been diagnosed with ASD which gives rise to a neurological and/or cognitive impairment that is permanent or likely to be permanent. However, the Tribunal expressed concerns during the hearing about whether it could be satisfied on the evidence that the Applicants meets the relevant threshold under section 24(1)(c).
The Father ran the Applicant’s case on the basis that she meets section 24 of the Act. He contends she has substantially reduced functional capacity across all activities. The Respondent indicated part-way through the hearing that it may be open to the Tribunal to find the Applicant’s impairment results in substantially reduced functional capacity in the socialising activity. It appeared Counsel later acknowledged there were limitations with the evidence for the purpose of making such a finding.
In Mulligan v National Disability Insurance Agency [2015] FCA 544, Mortimer J held that the legislation pertaining to the access criteria requires “a relatively high degree of precision by decision-makers... in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multifaceted”.[69] The Full Court of the Federal Court of Australia in National Disability Insurance Agency v Foster [2023] FCAFC 11 also explained that the legislation requires a functional, practical assessment of what a person can and cannot do.[70]
[69] Mulligan at [55].
[70] Foster at [44].
The relevant threshold for subsection 24(1)(c) was described in the Tribunal’s decision of Garcia Albiol and National Disability Insurance Agency [2024] AATA 496 as follows (footnotes omitted):
[68] The Agency also submits that the term ‘substantially’ in the context of reduced functional capacity carries a ‘high threshold’. I am satisfied that this is the correct interpretation and my considerations are as follows:
The recommendation of the Productivity Commission was that the scheme provide supports only to a sub-category of persons within a much larger category of the persons who have a disability.
The Productivity Commission also recommended that the scheme provide these supports ‘judiciously rather than routinely’. This recommendation is logical and central to the operation of the scheme and ensures its financial sustainability.
The scheme was never intended to provide support to ‘every person with a disability’.
Rather, as part of one of its functions the scheme was intended to support persons with disability to receive supports outside of the scheme through mainstream services. This would of course include persons with a disability who do not fall within the sub-category of persons for whom the scheme was intended.
The scheme was not intended to respond to shortfalls in other mainstream services, including those provided by relevant State and Territory governments.
The intention of providing supports to only a subcategory of persons with a disability is reinforced by the ability of the legislature to prescribes rules in relation to access to the scheme. By way of example Rule 5.8 of the Access Rules operates to categorise certain persons ‘into’ the category of persons with a ‘substantially’ reduced functional capacity.
The concept of prescribing rules in relation to a category of certain persons who would be mandatorily ‘excluded’ from the category of persons with a ‘substantially’ reduced functional capacity is an unrealistic if not impossible task. Notwithstanding, the Access Guidelines assist the decision maker with an informed approach by way of practical examples and circumstances in which access will not be granted.
I am satisfied that the Tribunal’s satisfaction of what constitutes ‘substantially’ reduced functional capacity for an applicant seeking access to the NDIS scheme requires a high threshold. This decision will therefore be made on that basis.
The Access guidelines define the relevant activities as follows:
• Communicating – how you speak, write, or use sign language and gestures, to
express yourself compared to other people your age. We also look at how well you
understand people, and how others understand you.
• Socialising – how you make and keep friends, or interact with the community, or
how a young child plays with other children. We also look at your behaviour, and
how you cope with feelings and emotions in social situations.
• Learning – how you learn, understand and remember new things, and practise
and use new skills.
• Mobility, or moving around – how easily you move around your home and
community, and how you get in and out of bed or a chair. We consider how you
get out and about and use your arms or legs.
• Self-care – personal care, hygiene, grooming, eating and drinking, and health. We
consider how you get dressed, shower or bathe, eat or go to the toilet.
• Self-management (if older than 6) – how you organise your life. We consider
how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.[71]
[71] Applying to the NDIS guideline, 10 December 2024.
In relation to socialising, the Tribunal accepts the Respondent’s submission that the camp incident, along with the Applicant sending the text message to her friend expressing thoughts of self-harm are significant and concerning. Whilst there are references to anxiety, mental health concerns, self-harm and suicidal ideation across the treating practitioner reports, the recent sexualised behaviour appears to be qualitatively different to the reported more longstanding difficulties of swearing, arguing, being disrespectful to teachers, demonstrating physical aggression and absconding.
Significantly, the treating practitioners do not overly emphasise swearing, aggressive or disrespectful behaviour in their reports – all of which was far more pronounced in the school records. Ms Jessica Revitt-Mills, Behaviour Support Practitioner, is one of the few practitioners who explicitly references the Applicant swearing and making verbal threats when anxious. Ms Revitt-Mills observed the Applicant is a “strong-willed and determined personality” who presents with a “confident attitude”. It is clear from Ms Revitt-Mills report that 2024 was a particularly difficult year for the Applicant. She absconded from her Father’s home and was taken to a police station by her Mother amidst ongoing family tensions.[72] The Applicant was also subject to court orders because she spent additional time with her Mother.[73]
[72] JHB2, p345.
[73] JHB2, p345.The Tribunal infers this was likely a Recovery Order made pursuant to section 67Q of the Family Law Act 1975 (Cth).
In 2023, Ms Douglass reported that the Applicant:
experiences high levels of anxiety that further impacts on her functional performance and engagement. [The Applicant] experiences heightened sense of anxiety, fear and panic, and has recently reported symptoms consistent with panic attack and hallucination, which should be further explored by an appropriate psychologist/psychiatrist.[74]
[74] JHB1, p51.
Ms Douglass also noted the following:
[The Applicant] is reported to have experienced an increased (sic) in behaviours of concern recently which [the Father] reports may be attributed to by the ongoing family violence and family conflict between her parents. It was noted that [the Applicant] has experienced ongoing trauma through witnessing domestic violence within the family on the mother’s side.[75]
[75] JHB1, p57.
Having considered the available evidence, the Tribunal is not satisfied that the Applicant’s neurological and/or cognitive impairments result in substantially reduced functional capacity in any activity under section 24(1)(c) for the following reasons:
(l)Many of the practitioner reports are at least 2 years old. Significant changes occur between the ages of 13 and 15 and the Tribunal does not have a clear picture as to what tasks the Applicant can and cannot do in each activity.
(m)Dr Gryffydd’s report lacked specificity and a detailed explanation of the manifestations of the Applicant’s impairments and/or how they impact her day-to-day functional capacity.
(n)Ms Douglass’ report was more detailed and indicated a reduction in functional capacity across all activities, but it is unclear whether the reduction could be properly characterised as substantial, either at the time of the report or now. Ms Douglass’ report also indicated mental health was a significant concern that required follow-up.
(o)None of the Applicant’s treating practitioners gave oral evidence, which meant their opinions and recommendations could not be clarified or tested. The Tribunal could not obtain insights into the Applicant’s current functional capacity or the Applicant’s perspective, as expressed to practitioners, about the current challenges she is experiencing.
(p)The Tribunal did not have the benefit of informally speaking to or taking evidence from the Applicant who is attending a mainstream high school and who is now close to 16 years of age. This was of some surprise to the Tribunal noting the Applicant’s preparedness to engage with Ms Douglass in front of her classmates at school and her engagement with a range of practitioners more generally.[76] As her Father was the only conduit between the Tribunal and the Applicant, the Tribunal has no way of independently verifying the Applicant’s views on anything.
(q)The Tribunal did not have the benefit of hearing clinical opinion from a treating practitioner or an independent expert about the Applicant’s recent behaviours and how they might be best understood and/or treated.
(r)A range of evidence suggests other factors may be contributing to the manifestation of the impairment and/or impacting the Applicant’s functional capacity, particularly within the activity of social interaction.
[76] For example, see A4 of JHB1, p344.
The Tribunal acknowledges that factors including family violence and impairments arising from anxiety, other mental health issues and/or the specific learning disorder may affect the Applicant’s support needs under section 34(1)(aa). There is clear evidence that some of these factors have been acknowledged and factored into recommendations for supports by the Applicant’s treating practitioners, which the Tribunal has accepted are reasonable and necessary. However, that is a separate question to determining whether she meets the disability requirements under section 24. Such factors (and non-permanent impairments) cannot be considered when assessing whether the Applicant’s neurological and/or cognitive impairment results in substantially reduced functional capacity.
Dr Richmond’s report does seem to suggest anxiety may be exacerbating the impacts of the impairments arising from ASD. In that sense, anxiety could be causing additional reduction in functional capacity, although the exact degree of influence or impact is unknown.
The Father repeatedly claimed that anxiety is a regular part of ASD. However, the Applicant’s exposure to family violence, ongoing family tensions and multiple court proceedings cannot, in the Tribunal’s view, be separated from her behaviour and distress. It is now widely recognised, particularly in the Courts frequented by the Father in recent years, that a child’s exposure to family violence can adversely affect a child’s wellbeing and contribute to poorer educational outcomes, cognitive abilities, and mental health, along with behavioural and adjustment problems.[77]
[77]
Having considered the evidence, the Tribunal is of the view that the Applicant’s current behaviours and reduced functional capacity, particularly as it relates to socialising, communicating, learning and self-management, are more likely explained by a multitude of factors which may include impairments arising from ASD, ADHD and a specific learning disorder, exposure to family violence, exposure to emotional dysregulation and/or disrespectful communication within the home, anxiety or depression, issues associated with adolescence including exploration of sexual identity and trauma associated with parental separation and violence.

The Applicant’s Father further submits, “As practitioner registration is legally required irrespective of funding method, that safeguard is inherently satisfied. Therefore, any additional funding conditions are unwarranted.[118]
[118] Applicant’s closing written submissions dated 1 October 2025, p13.
The Respondent contends the Applicant’s reliance on XTHS is misguided because that participant’s funding was already plan managed and therefore had no impact on the plan management fees. “Here, the Applicant’s funding is otherwise self-managed, and so plan management of the Applicant’s behavioural support funding will entail fees that are not otherwise payable in respect of the Applicant”.[119] The Respondent submits the additional cost is not value for money pursuant to section 34(1)(c).
[119] Respondent’s closing written submission dated 7 October 2025, p1.
Plan management relating to child participants is set out at section 74 of the NDIS Act. If a child representative makes a request for the plan to be managed wholly or in part by a registered plan management provider, the statement of participant supports must give effect to that request subject to some exceptions.[120]
[120] See section 74(2) and (3).
Section 74(4A) of the NDIS Act provides that:
If:
1. (a) a person mentioned in subsection (1) has made a request covered by paragraph (2)(b); and
2. (b) the CEO is satisfied that the management of the funding for supports under the plan to a particular extent by the registered plan management provider nominated by the person would present an unreasonable risk to the participant;
the statement of participant supports in the participant’s plan must not provide that the nominated provider is to manage the funding for supports under the plan to that extent.
Rule 6(3) of the National Disability Insurance Scheme (Management of Funding and Plan Management) Rules 2025 (Cth) (Management of Funding and Plan Management Rules 2025) sets out the matters that must be considered for the purposes of subsection 74(4A) of the NDIS Act when deciding whether plan management of funding would present an unreasonable risk to a participant. The Respondent did not contend that the Father’s request would pose an unreasonable risk and there was nothing in the material before the Tribunal to indicate such a risk.
The Tribunal is persuaded by the circumstances of this case that there are grounds to depart from current convention or practice, noting it does not appear that the Agency’s preference to manage behaviour support funding has ever been formalised in an operational guideline. The grounds can be summarised as follows:
(a)The Applicant is almost 16 years of age, attends a mainstream school, is not subject to restrictive practices in the behaviour support plan and engages regularly with a psychologist. The Tribunal is satisfied the Applicant has the capacity to communicate and express any concerns about practitioner conduct.
(b)The Applicant’s Father readily accepts the importance of only utilising NDIS registered behaviour support practitioners. He was unequivocal on this point. The current behaviour support practitioner is a registered provider. There was no suggestion the proposal was motivated by a desire to engage a non-registered behaviour support practitioner.
(c)The Agency already has powers to monitor compliance under section 46 of the Act and can remind plan managers about the importance of NDIS funds being spent in accordance with the plan and any other legislative requirements.
The NDIS Quality and Safeguards Commissioner is responsible for service provider registration and compliance under Chapter 6A of the NDIS Act and has a specific behaviour support function under section 181H.
Under section 7 of the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018, a person must be registered under section 73E of the Act to provide specialist behaviour support services. They are subject to the NDIS Code of Conduct, the NDIS Practice Standards and the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018.
The Tribunal observes there does not appear to be any minimum requirements for tertiary qualifications, formalised trainings, or years of relevant experience to become a registered behaviour support practitioner. A behaviour support practitioner must complete a self-assessment against the Positive Behaviour Support Capability Framework and apply to the NDIS Commission to be approved as a registered provider.[121] This arrangement appears to be unusual because medical and allied health practitioners working the NDIS space routinely have relevant tertiary qualifications and are registered with a professional board, often overseen by the Australian Health Practitioner Regulation Agency (AHPRA).
[121] >
This discrepancy is confusing given the nature of behaviour support which involves working with individuals who display challenging or complex behaviours of concern and who might otherwise be vulnerable because, for example, they are non-verbal, have an intellectual disability and/or are isolated.
The Tribunal does not dispute that agency-management has been adopted by the Agency to help monitor compliance. To that end, the Tribunal does not disagree with the intent of the Respondent’s conventional practice which seems abundantly sensible given the nature of the support. However, when considered alongside the choice afforded by sections 43 and 74, and the circumstances of this case, convention must yield when there is no unreasonable risk.
The Tribunal does not accept the Respondent’s submission that section 34(1)(c) prevents a mixture of plan management arrangements by reason of cost, noting plans regularly consist of self-management/plan-management or agency-management/plan-management for different supports. It is the Tribunal’s view that the wording “must give effect” prioritises choice over the associated costs in a fundamental way for the purposes of plan management.
The Applicant’s behaviour support funding should be plan managed as required by section 74 of the Act.
The Tribunal, pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth) sets aside the decision under review and remits the matter for reconsideration in accordance with the following orders:
1. The following supports are reasonable and necessary pursuant to section 34 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) and should replace existing supports in the same category:
a.    43 hours of speech therapy per year
b.    25 hours of psychology support per year
c.     36 hours of support coordination (Level 2) per year
d.    90 hours of positive behaviour support per year.
e.    32 hours of occupational therapy per year
2.    The following supports are not reasonable and necessary pursuant to section 34 of the NDIS Act and should be removed from the Applicant’s SOPS:
a.    6 hours of support worker assistance
3.    All other supports in the Applicant’s current SOPS dated 9 April 2025 excepting any one-off assistive technology supports already used, are to be replicated pro-rata from the date on which the supports specified above are included in the Applicant's SOPS.
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 current plan except for behaviour support funding, which is to be plan managed.
5. The plan should be re-assessed 12 months after the supports specified above are included in the Applicant’s SOPS.

Date(s) of hearing: 16 and 17 September 2025 – by video

Applicant: Applicant’s Father

Counsel for the Respondent: Dr Michael Taylor

Solicitors for the Respondent:
Ms Jane Thomson, Moray and Agnew

Annexure 1
Overview of Relevant Law
Amendments to the National Disability Insurance Scheme Act

The National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Amending Act) came into force on 3 October 2024. Significant changes include the following:
(d)Section 10 introduced a definition of NDIS support.
(e)Section 34(1)(aa) provides that a support must be necessary to address needs arising from an impairment in relation to which the participant meets the disability or early intervention requirements.
(f)Section 34(1)(f) stipulates a support must be a NDIS support.
Item 129(1) of Schedule 1 of the Amending Act specifies that changes to sections 33, 34 and 35 apply in relation to a statement of participant supports included in an old framework plan for a participant if the statement is approved or varied on or after commencement.
The Minister also made transitional rules which accompany changes to the NDIS Act and take effect from 3 October 2024.
The National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Transitional Supports Rules) outline supports that are and are not considered NDIS supports for the purposes of section 10 of the NDIS Act. Section 10(2) of the NDIS Act provides that when making rules for the purposes of declaring what are considered NDIS supports, the Minister must be satisfied that the support is appropriately funded or provided through the NDIS.
Further, the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Transitional Miscellaneous Rules) require the decision-maker to also be satisfied that the support is most appropriately funded or provided through the National Disability Insurance Scheme and not another service system.
The Amendment Act does not provide for any changes to the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports Rules) and they continue to apply.
There are a range of other rules which may apply to an application for review and will be discussed where relevant in the reasons for decision.
National Disability Insurance Scheme Act 2013
The NDIS was established under the NDIS Act. Section 3 sets out the objects of the Act and Section 4 identifies the general principles guiding actions taken under the Act.
For example, sections 3(1)(c), (e) and (g) relevantly state the objectives of the Act are to support the independence and social and economic participation of people with disability, enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports and to promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community.
Section 4 principles include:
(a)People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development (section 4(1));
(b)People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability (section 4(2));
(c)People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime. (section 4(3));
(d)…
(e)People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation (section 4(6));
…
Access to the NDIS
A person must meet the access criteria to become a participant of the NDIS (sections 20 and 21) which includes that the person was aged under 65 when the access request was made (section 22), that they meet the residence requirements (section 23) and either meet the disability requirements (section 24) or early intervention criteria (section 25).
Under item 126 of Schedule 1 to the Amending Act, the amendments to section 24 and 25 apply to access requests that are made to the NDIA by a prospective participant on or after 3 October 2024. This means these amendments will only apply to access matters that are before the Tribunal if the prospective participant made an access request on or after 3 October 2024.
Section 24 of the Act states:
(1) A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self‑care;
(vi) self‑management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require NDIS supports under the National Disability Insurance Scheme for the person’s lifetime.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require NDIS supports under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
(3) For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require NDIS supports under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
(4) Subsection (3) does not limit subsection (2).
Note 1: The time at which a requirement in this section needs to be met is the time the matter falls to be determined. For an access request, that time is the time of considering the request (see paragraph 21(1)(c)).
Note 2: National Disability Insurance Scheme rules may be made in relation to this section under subsection 27(1).
If the Applicant does not meet the disability requirements, the Tribunal must consider whether the Applicant meets the early intervention requirements set out in section 25 of the Act:
(1) A person meets the early intervention requirements if:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or
(iii) is a child who has developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer; and
(d) the CEO is satisfied any early intervention supports that would be likely to benefit the person as mentioned in paragraphs (b) and (c) would be NDIS supports for the person.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(1A) For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
Note 1: The time at which a requirement in this section needs to be met is the time the matter falls to be determined. For an access request, that time is the time of considering the request (see paragraph 21(1)(c)).
Note 2: National Disability Insurance Scheme rules may be made in relation to this section under subsection 27(1).
Under subsection 209(1) of the Act, the Minister may make rules prescribing certain matters. Section 27 of the Act provides that the NDIS rules may prescribe criteria to be applied in assessing the disability requirements and early intervention requirements of the Act. The relevant rules are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’).
In relation to the question of permanency of an impairment, the Access Rules state:
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
In relation to substantially reduced functional capacity the Access Rules provide:
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal, unless there is good reason not to do so.[122]
[122] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
In Mulligan v National Disability Insurance Agency [2015] FCA 544, Mortimer J held that the legislation pertaining to the access criteria requires “a relatively high degree of precision by decision-makers... in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multifaceted”.[123] The Full Court of the Federal Court of Australia in National Disability Insurance Agency v Foster [2023] FCAFC 11 also explained that the legislation requires a functional, practical assessment of what a person can and cannot do.[124]
[123] Mulligan at [55].
[124] Foster at [44].
NDIS Participants and Plans

A participant’s plan comprises a statement of goals and aspirations, which is prepared by the participant (section 33(1)) and a statement of participant supports (SOPS), which is prepared with the participant and approved by the Agency (section 22(2)).
The SOPS must specify, amongst other things, the reasonable and necessary supports that will be funded under the NDIS (section 33(2)(b)).
In deciding whether to include the requested supports in the participant’s SOPS, the Tribunal must have regard to the matters set out in section 33(5) of the NDIS Act which includes consideration of section 34(1) of the NDIS Act.
Section 34(1) sets out the criteria the Tribunal must be satisfied of when deciding the reasonable and necessary supports that will be included in a participant’s SOPS. The Tribunal must be positively satisfied about each of the matters set out in section 34(1) of the Act.[125] The Applicant carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.[126]
[125] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [201].
[126] For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).
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 an NDIS support for the participant.
Note: For the purposes of paragraph (aa):
(a) the time at which the disability requirements or the early intervention
requirements need to be met is the time the CEO decides to approve the
statement of participant supports; and
(b) a participant’s disability support needs arising from an impairment in relation to
which the participant meets the disability requirements or 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.
The term ‘reasonable and necessary support’ is not defined in the NDIS Act. In McGarrigle v National Disability Insurance Agency [2017] FCA 308, Mortimer J made the following observations at [91] (prior to the amendments):
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.
The Full Court in National Disability Insurance Agency v WRMF [2020] FCAFC 79, considered the meaning of reasonable and necessary supports:
[T]here is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.[127]
[127] WRMF at [149]-[151].
Part 3 of the Supports Rules set out criteria the Tribunal must consider when determining whether the supports requested are reasonable and necessary including whether they represent value for money, are effective and beneficial having regard to good practice and take account of what is reasonable to expect families to provide.
Rule 3.1 regarding value for money (section 34(1)(c)) states:
3.1 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;
(ii) whether there are any expected changes in technology or the participants 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).[128]
[128] National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth).
Rules 3.2 and 3.3 regarding effective and beneficial and current good practice (section 34(1)(d)) provide:
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.
Rule 3.4 outlines the matters to be considered when assessing what is reasonable to expect families, carers, informal networks, and the community to provide under section 34(1)(e).
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:
(a) for a participant who is a child:
(i) that it is normal for parents to provide substantial care and support for children; and
(ii) whether, because of the child’s disability, the child’s care needs are
substantially greater than those of other children of a similar age; and
(iii) the extent of any risks to the wellbeing of the participant’s family members or
carer or carers; and
(iv) whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s
wellbeing;
(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.
Part 5 contains general criteria regarding supports and supports that will not be funded. Rules 5.1 and 5.2 provide:
5.1 A support will not be provided or funded under the NDIS if:
(a) it is likely to cause harm to the participant or pose a risk to others; or
(b) it is not related to the participant’s disability; or
(c) it duplicates other supports delivered under alternative funding through the NDIS; or
(d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b) costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would no otherwise incur.
5.3 The following supports will not be provided or funded under the NDIS:
(a) a support the provision of which would be contrary to:
(i) a law of the Commonwealth; or
(ii) a law of the State or Territory in which the support will be provided;
(b) a support that consists of income replacement.

[2025] ARTA 2187

17 October 2025

Key Legal Topics

Areas of Law

Administrative Law

Disability Law

Legal Concepts

Administrative Review

Jurisdiction

Substantially Reduced Functional Capacity

Permanent Impairment

Natural Justice & Procedural Fairness

Date(s) of hearing:	16 and 17 September 2025 – by video
Applicant:	Applicant’s Father
Counsel for the Respondent:	Dr Michael Taylor
Solicitors for the Respondent:	Ms Jane Thomson, Moray and Agnew