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

[2025] ARTA 385

Camilleri and The Chief Executive Officer, National Disability Insurance Agency (NDIS) [2025] ARTA 385 (17 April 2025)

Administrative Review Tribunal

Applicant/s:  Kimberley Camilleri

Respondent:   The Chief Executive Officer, National Disability Insurance Agency

Tribunal Number:   2022/2906

Tribunal:General Member S Smith 

Place:  Brisbane 

Date:17 April 2025

Corrigendum

Date of Corrigendum: 12 May 2025

Pursuant to section 114 of the Administrative Review Tribunal Act 2024, the following alterations are made to the statement of reasons for the decision:

1. At page 10, paragraph 23, the extract of note (a) at section 34 of the NDIS Act “the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve and” is deleted and substituted with “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”

2. At page 11, paragraph 27, in the sentence “Section 10 of the NDIS Act support provides a definition[…]”, the word ‘support’ is deleted.

3. At page 41, paragraph 164, the phrase “General Member S Collins” is deleted and substituted with “General Member S Smith”.

...........................................

General Member S Smith

Applicant/s:  Kimberley Camilleri

Respondent:  The Chief Executive Officer, National Disability Insurance Agency

Tribunal Number:                2022/2906

Tribunal:General Member S Smith

Place:Brisbane

Date:17 April 2025

Decision:1. The Tribunal affirms the decision under review pursuant to section 105(a) of the ART Act.

.......................................

General Member S Smith

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – participant supports - personal training – massage – physiotherapy – seizure support – hydrotherapy – support worker - hand therapy – dietician – funding for art activities – recreational activities – nail cutting at a salon - plan duration - yoga - reasonable and necessary supports – consideration of section 34 National Disability Insurance Scheme Act 2013 (Cth) - decision affirmed

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
National Disability Insurance Scheme Act 2013 (Cth) s34, s35
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024
National Disability Insurance Scheme (Supports for Participants) Rules - 1 July 2013, Rules - 3, 5

Cases
Beezley v Repatriation Commission (2015) FCAFC 165
BMCX and CEO of the National Disability Insurance Agency [2025] ARTA 199
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Malouf v and CEO of the National Disability Insurance Agency [2025] ARTA 97
NDIA v KKTB, by her litigation representative CVY22 [2022] FCAFC 181
National Disability Insurance Agency v WRMF [2020] FCAFC 79
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
SCHW and National Disability Insurance Agency [2021] AATA 591
WVGM v CEO of the National Disability Insurance Agency [2025] ARTA 47

Secondary Materials

NDIS – Operational Guidelines - Reasonable and necessary supports, as of 22 September 2024.

NDIS – Principles we follow to create your plan, as of 22 September 2024.

NDIS – Creating your plan, as of 28 February 2025.

Statement of Reasons

INTRODUCTION

1. Ms Camilleri is a 36-year-old woman who lives in Melbourne and is self-employed through her online business.

2. In April 2015 Ms Camilleri suffered a carotid artery dissection following a chiropractic treatment and then experienced four to five transient ischemic attacks before she experienced a stroke resulting in a left hemiparesis.[1] Ms Camilleri became a participant in the National Disability Insurance Scheme (‘scheme’) on 8 January 2019.[2] The scheme is administered by the National Disability Insurance Agency (‘Agency’) pursuant to the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’).

   [1] EB-1 – H56, page 524.

   [2] EB-1 – H76, pages 1170 and 1176.

   BACKGROUND

3. On 15 February 2022, a delegate of the Agency approved a Statement of Participant Supports (‘SOPS’) for Ms Camilleri.[3] On 9 March 2022, Ms Camilleri requested a review of the original decision as she requested an increase in the funding of her supports.[4] On 25 March 2022, a delegate of the Agency confirmed the original decision under s100(6) of the NDIS Act[5] (‘internal review decision’).

   [3] For the period 15 February 2022 to 15 February 2023.

   [4] Pursuant to National Disability Insurance Scheme Act 2013 (Cth), s 100(2).

   [5] EB-1 – T2.

4. On 7 April 2022, Ms Camilleri applied for review of the internal review decision under section 103 of the NDIS Act. There have been four remittals of the internal review decision pursuant to section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’). There have been three remittals pursuant to section 85 of the Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’).

5. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.  

6. On 20 December 2024, the Agency approved a SOPS[6] for Ms Camilleri’s plan. On 17 March 2025 the Agency approved another SOPS[7] for Ms Camilleri’s plan. This is the SOPS currently subject to review and is now the reviewable decision (‘decision under review’).

   [6] 20 December 2024 – 20 June 2025.

   [7] 17 March 2025 – 16 September 2025.

7. On 12 November 2024 the Tribunal scheduled Ms Camilleri’s hearing to commence on 18 March 2025. On 17 March 2025, Ms Camilleri requested a ‘two-to-four-week adjournment’ because she had ‘recently obtained 2,500 documents critical to her application’ and had ‘a medical certificate.’

8. The Tribunal requested the parties attend as planned through Microsoft Teams on 18 March 2025. Ms Camilleri’s application by this time had been before the Tribunal since April 2022.

9. Ms Camilleri was self-represented, and she did not press her adjournment request. The Agency was represented by Mr Arron Hartnett of Counsel instructed by the Agency’s internal lawyer.

10. At Ms Camilleri’s request, and with the Agency’s consent, the Tribunal agreed to conduct a ‘hearing on the papers’ pursuant to section 106 of the ART Act. In doing so, the Tribunal considered and prioritised the section 9 ART Act objectives to resolve Ms Camilleri’s application as ‘quickly as possible.’

11. On 18 March 2025, the Tribunal made an order that it would:

    ·Collate Ms Camilleri’s ‘new material’ into a SIG box link so the Agency could access it, as Ms Camilleri had only emailed the ‘new material’ to the Tribunal;

    ·Provide the Agency with leave, until 1 April 2025, to lodge a written reply limited to issues arising from the ‘new material’;

    ·Control the scope of the review of its decision pursuant to section 53 of the ART Act (s53 Order) to only consider the material:

    odescribed at [12] including the ‘new material’ filed by Ms Camilleri; and

    oregarding Ms Camilleri’s 14 ‘requested supports’ listed at [16];

    oin light of the section 53 Order because both parties and the Tribunal would understand the issues to be considered at the hearing on the papers. There was no objection made by either party to the making of the s53 Order.[8]

    [8] BMCX v CEO of the National Disability Insurance Agency [2025] ARTA 199 (‘BMCX’) at [8].

    EVIDENCE BEFORE THE TRIBUNAL

12. The Tribunal marked evidence received as Exhibit Bundles (‘EB’):

    ·EB-1 – Consolidated hearing bundle, filed 28 February 2025 – 1270 pages;

    ·EB-2 - Agency Supplementary Statement of Facts Issues and Contentions (‘SFIC’) dated 17 March 2025 – 17 pages;

    ·EB-3 – Ms Camilleri’s 17 March 2025 objection to Supplementary SFIC – 4 pages;

    ·EB-4 –Ms Camilleri’s 17 March 2025 Plan and SOPS – 31 pages;

    ·EB-5 – Ms Camilleri’s 122 attachments of ‘new material’ uploaded by the Tribunal to SIG box on 17 and 18 March 2025 – around 2,500 pages;

    oEB-5A - Ms Camilleri’s email correspondence to the Tribunal post-hearing between 20 – 27 March 2025 containing ‘further new material’;

    ·EB-6 – Ms Camilleri’s written contentions, 18 March 2025– 60 pages;

    ·EB-7 – Agency reply submissions, 1 April 2025 – 13 pages;

    oEB-7A – Attachment A, tabled index of ‘new material’ - 8 pages; and

    oEB-7B- Attachment B, tabled index of ‘further new material’ - 8 pages.

    CONCESSIONS

13. Prior to the hearing, the Agency conceded that the following supports were reasonable and necessary for Ms Camilleri:

    ·Core Funding – Consumables:[9]

    [9] EB-2 at [29].

    oContinence Products – $3037.14 per year;

    oTwice Weekly Hair Washing – $40.00 per week or $2080.00 per year;

    oLow-cost Assistive Technology (AT) – personal care and safety – $400.00 per year;

    oDelivery – personal care and safety and disability-related health – $88.00 per year.

    ·Social Community and Civic Participation:

    oAccess Community Social and Recreational Activities – Standard – Weekday daytime – additional 3 hours per day for 10 days per year for overseas travel and disability-related support;

    oAccess Community Social and Recreational Activities – Standard – Saturday – additional 3 hours per day for 2 days per year for overseas travel and disability-related support;

    oAccess Community Social and Recreational Activities – Standard – Sunday – additional 3 hours per day for 2 days per year for overseas travel and disability-related support.

    ·Capacity Building:

    oAssessment Recommendation Therapy or Training – Other Professional – 10 hours per year (to access podiatry related support including nail care).

    ·Capital Support:

    oFunding for AFO leg brace and foot orthoses totalling $2,370.00;[10]

    [10] EB-1 – H2, page 6; EB-2, at [28].

14. I am satisfied, after considering the evidence and with regard to section 34 of the NDIS Act that these were appropriate concessions for the Agency to make.

    ISSUES IN CONTENTION AT THE HEARING

15. The Tribunal controlled the scope of the review of the decision pursuant to the s 53 Order to the 14 requested supports stated by Ms Camilleri on 18 March 2025, as listed at [16] and only these 14 requested supports will be considered. Ms Camilleri requested additional supports in her ‘further new material’ on 21 March 2025. The ‘further new material’ will not be considered by the Tribunal. The ‘further new material’ was received after the s 53 Order was made when the Tribunal directed the Agency to lodge a written reply limited to ‘new material’ filed by Ms Camilleri on 18 March 2025.[11]

    [11] EB-7 at [7], [15], [19].

16. Ms Camilleri seeks additional funding for 14 supports (the ‘requested supports’):[12]

    [12] 18 March 2025 statement of Ms Camilleri. H1. Agency SFIC January 2025 at [38] – [118].

    (i)Massage by a non-allied health therapist 2 – 3 times per week;

    (ii)Physiotherapy two times per week;

    (iii)Seizure supports of 8 hours per day on 3 – 4 days per week;

    (iv)Seizure monitoring for markets from Friday to Sunday for 8 hours per day;

    (v)Personal trainer three times per week;

    (vi)Hydrotherapy 2-3 times per week;

    (vii)Support worker assistance for 8 hours per day while travelling for 4 weeks per year;

    (viii)Hand therapy once per week;

    (ix)Dietician;

    (x)Art related activities funding of 8 hours per week for tasks to transport canvasses, open paint bottles and set up equipment (for economic participation);[13]

    [13] EB-3, page 2.

    (xi)Weekly activities with four requests:

    a. attend Jewish choir – 2 hours per week;

    b. transport for piano lessons – 2 hours per week;

    c. scrabble club – 3 hours per week; and

    d. crossbow training – 3 hours per week;

    (xii)Plan duration of 2-3 years;

    (xiii)Yoga once per week; and

    (xiv)Nail cutting at a salon.

17. The Agency contends that these requested supports are not ‘reasonable and necessary’ supports pursuant to section 34 of the NDIS Act.

18. The Tribunal must determine whether the requested supports are:

    ·Reasonable and necessary supports under section 34 of the NDIS Act; and

    ·Capable of being funded by the scheme in order to be included in Ms Camilleri’s SOPS.

    THE LEGAL FRAMEWORK

    The National Disability Insurance Scheme Act 2013 (Cth)

19. The NDIS Act objectives are stated in section 3 and the general principles and guiding actions taken under the NDIS Act are set out in section 4.

20. Section 34 of the NDIS Act sets out what is a ‘reasonable and necessary support’ under the Scheme.

21. On 7 April 2022, the date of Ms Camilleri’s application to the Tribunal, section 34 of the NDIS Act provided as follows:

    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:

    (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 most appropriately funded or provided through the NationalDisability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

    (i)  as part of a universal service obligation; or

    (ii)  in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

    (2)  The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).

22. However, on 3 October 2024, and prior to this review the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) (‘Amending Act’) commenced. The Amending Act provided amendments to the NDIS Act including amendments to section 34 of the NDIS which will apply to Ms Camilleri’s review.[14]

    [14] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth), s 129.

23. The amended section 34 of the NDIS Act provides as follows:

    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 participantmeets 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 (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 and

    (b)  a participant's disability support needs arising from an impairment in relation to which the participantmeets 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.

    (2)  The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs   (1)(aa) to (f). (Tribunal emphasis to indicate amendments)

24. The section 34(1) criteria of the NDIS Act are cumulative; therefore, all the criteria must be satisfied. Moreover, the Tribunal must be positively satisfied about each criterion and the Applicant has a ‘common sense onus to adduce sufficient evidence to satisfy the Tribunal that the criteria are met.[15] 

    [15] See Beezley v Repatriation Commission (2015) FCAFC 165 at [68]. Per North, Tracey, and Mortimer JJ; See also National Disability Insurance Agency v WRMF (2020) 276 FCR 415 at [201].

25. Section 34(1)(aa) of the NDIS Act imposes an additional criteria requirement. This involves a consideration of whether the support that Ms Camilleri seeks is necessary to address her needs which arise from the impairment/s for which she met the disability requirements under section 24 or the early intervention requirements under section 25 of the NDIS Act.

26. The ‘previous’ section 34(1)(f) of the NDIS Act has been replaced with ‘new’ section 34(1)(f) which requires that the support be a ‘NDIS support.’

27. Section 10 of the NDIS Act support provides a definition of what is a ‘NDIS Support’ pursuant to section 34(1)(f) of the amended NDIS Act, and states as follows:

    Supports that are NDIS supports

    (1)  Subject to subsections (4) and (9), a support is an NDIS support for a person who is a participant or prospective participant if the support is declared by National Disability Insurance Scheme rules made for the purposes of this subsection to be an NDIS support for :

    (a)  participants or prospective participants generally; or

    (b)  a class of participants or prospective participants that includes the person.

    Note:  The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003 ).

    (2)  Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (1), the Minister must be satisfied:

    (a)  for rules to which paragraph (1)(a) applies--that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or

    (b)  for rules to which paragraph (1)(b) applies--that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

    (3)  National Disability Insurance Scheme rules may declare a support for the purposes of subsection  (1) only if at least one of the following applies:

    (a)  the declaration of the support implements Australia's obligations under:

    (i)  the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006; or

    (ii)  any other agreement with one or more other countries;

    (b)  the declaration of the support enables the provision of sickness benefits.

    Note:  For subparagraph (a)(i), the Convention on the Rights of Persons with Disabilities is in Australian Treaty Series 2008 No.12 ([2008] ATS 12) and could in 2024 be viewed in the Australian Treaties Library on the website ( are not NDIS supports

    (4)  The National Disability Insurance Scheme rules may declare that a support is not an NDIS support for:

    (a)  participants or prospective participants generally; or

    (b)  a class of participants or prospective participants.

    Note:  The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003 ).

    (5)  Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection   (4), the Minister must be satisfied:

    (a)  for rules to which paragraph (4)(a) applies--that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or

    (b)  for rules to which paragraph (4)(b) applies--that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

    (6)  The CEO may determine, in writing, that a support is taken to not be declared under subsection  (4) in relation to a participant if:

    (a)  the support is prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and

    (b)  the support would, apart from subsection (4), be an NDIS support for the participant; and

    (c)  the participant applies to the CEO in accordance with subsection (7) for the determination; and

    (d)  the CEO is satisfied that:

    (i)  the support would replace one or more other supports that are NDIS supports for the participant; and

    (ii)  the cost of the support is the same or lower than the total of the costs of the supports it would replace; and

    (iii)  the support would provide the same or a better outcome for the participant than the supports it would replace; and

    (iv)  any other conditions specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph are met in relation to the support, the participant, or both.

    Note 1:  A determination may be revoked under subsection 33(3) of the Acts Interpretation Act 1901 .

    Note 2:  The National Disability Insurance Scheme rules may prescribe a support for the purposes of paragraph (a) by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003 ).

    (7)  An application under paragraph (6)(c) must:

    (a)  be in the form (if any) approved by the CEO; and

    (b)  include any information, and be accompanied by any documents, required by the CEO; and

    (c)  be made in accordance with any other requirements specified in the National Disability Insurance Scheme rules for the purposes of this paragraph, which may include requirements as to the circumstances in which an application may, or may not, be made.

    (8)  The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of subsection (6), including by prescribing requirements with which the CEO must comply, methods or criteria that the CEO is to apply, or matters that the CEO may, must or must not take into account, in deciding whether to make a determination under that subsection.

    (9)  A support is not an NDIS support for a participant or prospective participant if the support consists of the provision of:

    (a)  sexual services; or

    (b)  alcohol; or

    (c)  drugs, the possession of which is a contravention of a law of the Commonwealth, a State or a Territory.

1. There is also the consideration of section 34(2) of the NDIS Act which outlines that the NDIS rules may prescribe methods or criteria to be applied, or matters the CEO must consider, in deciding whether a requested support satisfies the criteria under section 34(1) of the NDIS Act.

2. Section 35 of the NDIS Act allows for rules to be made with respect to the prescription of ‘reasonable and necessary supports’ or ‘general supports’ that will be funded or provided under the scheme.

3. For Ms Camilleri’s review the relevant rules include the: National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘Supports Rules’) and National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (‘Transitional Rules’).

4. Rules 3 and 5 of the Supports Rules are relevant and they state as follows:

   Value for money

   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; and

   (ii)       whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;

   (e)       whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;

   (f)        whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).

   Effective and beneficial and current good practice

   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.

   General criteria for supports

   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 not otherwise incur.

5. The Transitional Rules are also relevant to Ms Camilleri’s review. Schedule 1 of the Transitional Rules sets out supports that are NDIS Supports, unless otherwise provided, for the purposes of s 10(1) of the NDIS Act. Schedule 2 of the Transitional Rules identifies supports that generally are not NDIS supports for the purposes of s 10(1) of the NDIS Act.

6. In regard to supports rules, Mortimer J observed in McGarrigle v National Disability Insurance Agency:[16]

   ‘The [supports rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement…some policy decision-making about the nature and extent of supports to be provided or funded.’ 

   [16] McGarrigle v National Disability Insurance Agency [2017] FCA 308 (‘McGarrigle’) at [43].

7. There is no definition of ‘reasonable and necessary’ in the NDIS Act. The Full Court in National Disability Insurance Agency v WRMF[17] (‘WRMF’) considered the meaning of reasonable and necessary supports, and stated as follows:

   The phrase is a composite phrase. ... each limb of the phrase should be given work to do. That task is not difficult, or complicated with these two particular words, which are readily understood as conveying different meanings. However, the Parliament has chosen to use a composite phrase rather than to stipulate two distinct requirements, and therefore, as Gleeson CJ cautioned in XYZ v Commonwealth [2006] HCA25; (2006) 227 CLR532 at [19], '[t]here are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts'.

   …Both adjectives qualify the noun “support”, but they do so as a composite phrase. It is not fruitful to split them off and consider them separately, just as it is neither fruitful nor appropriate to attempt any exhaustive or authoritative judicial definition of them.

   Nevertheless, there 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.

   [17] National Disability Insurance Agency v WRMF [2020] FCAFC 79 (‘WRMF’) at [149]-[151].

8. The Tribunal also needs to consider that the requested supports accommodate the participant’s particular impairments in order for them to be a participating member of the Australian community, in light of the values that are set out in the guiding principles and objects of the NDIS Act.[18]

   [18] WRMF [141]. Cited with approval in National Disability Insurance Agency v KKTB, by her litigation representative [2022] FCAFC 181 at [129].

   Agency’s operational guidelines

9. The Agency has issued Operational guidelines in regard to what are considered to be ‘reasonable and necessary supports for participants.’ Unless the Operational guidelines are inconsistent with the provisions or objects of the NDIS legislation, they are to be taken into account[19] in deciding what is a reasonable and necessary support for Ms Camilleri. I have considered the NDIS Operational guidelines – ‘reasonable and necessary supports,’ ‘principles we follow to create your plan’ and ‘creating your plan.’[20]

   [19] See SCHW and National Disability Insurance Agency [2021] AATA 591 at [13] where DP Constance referred to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

   [20] Operational guidelines: ‘Reasonable and necessary supports’ on 22 September 2024; ‘Principles we follow to create your plan’ on 22 September 2024; and ‘Creating your plan’ on 28 February 2025.

   EVIDENCE  

10. I have considered the filed written evidence noted at [12], Ms Camilleri’s ‘new materials’ but not her ‘further new materials’ that she filed on 21 March 2025.[21] I find that Ms Camilleri sent the ‘further new material’ after the s 53 Order was made on 18 March 2025. I accept the Agency’s contention that Ms Camilleri’s ‘further new material’ should not be considered. For the reasons that follow, I find that even after contrasting all of Ms Camilleri’s material on the tables at EB-7A and EB-7B, that the decision under review should be affirmed. A great deal of material was filed at [12], all of which I have considered. I now refer to the more salient aspects of the evidence in respect of this application.

    [21] EB-7 at [15] – [22].

    Evidence about Ms Camilleri

11. It was uncontested that Ms Camilleri lives with physical impairments arising from her diagnosis of ‘other Physical Conditions’ as a result of a stroke in 2015.[22]

    [22] EB-1 – H2, page 2.

12. I refer to Ms Camilleri’s undated statement of lived experience in full.[23] Ms Camilleri has lived at various addresses in Melbourne since December 2020.[24] In May to July 2023 Ms Camilleri resided in a 6-metre by 6-metre ‘granny flat’.[25] Ms Camilleri reported that in 2024 she ‘lost a lease unexpectedly and had to move multiple times within a single month’.[26] Prior to the hearing Ms Camilleri reported she was residing in share accommodation, and she now has plans to move to a different property at the end of March 2025.

    [23] EB-1 – H40, pages 434 – 445.

    [24] EB-1 – H8, page 308.

    [25] EB-1 – H56, page 527.

    [26] EB-1 – H28, page 354.

13. I note that Ms Camilleri has no informal supports in Melbourne[27] and that she is self-employed.

    [27] 18 March 2025 statement of Ms Camilleri. H3, page 136.

14. Ms Camilleri’s current SOPS contains four goals:[28]

    ·To continue to live in my home as independently as possible and I would like the equipment to support me to be able to wash my hair and move around my home freely;

    ·To increase my ability to access community-based activities and build and maintain positive relationships with other people;

    ·To maintain my strength, mobility, health and wellbeing; and

    ·To access any assistive technology I require to mobilise at home, in the community, and during recreational activities.

    [28] EB-4, pages 11-12.

15. Ms Camilleri contended that the Agency had ‘misrepresented and incorrectly calculated supports’[29] that she requires.

    [29] EB-3, pages 1-2.

16. Ms Camilleri states she has been ‘formally diagnosed with stroke-related neurological impairments, epilepsy, cognitive fatigue, and mobility limitations.’[30] 

    [30] EB-6, page 5.

17. I refer in full to Ms Camilleri’s ‘written contentions’ of 18 March 2025 where she contends why her 14 requested supports are reasonable and necessary under the appropriate ‘requested support’ headings in my considerations.[31]

    [31] EB-6.

    Dr Andrew Davaris, General Practitioner (‘GP’), Burnley Street Medical Centre

18. Dr Davaris is Ms Camilleri’s GP, he provided a letter of support for Ms Camilleri dated 11 May 2024.[32] Dr Davaris reported that Ms Camilleri’s stroke resulted in ‘left hemiparesis and a complex seizure disorder’… with an increase in frequency of seizures that has been referred to Alfred Hospital for further neurological evaluation.[33] Dr Davaris also reported that Ms Camilleri ‘health issues have been compounded by significant stress as she endeavours to lead a normal life and launch her new business…potentially impacting her overall health.’

    [32] EB-1 – H20, page 319.

    [33] Ibid.

19. Dr Davaris also provided several handwritten notes addressed ‘to whom it may concern’ stating that Ms Camilleri requires:

    ·‘intensive physiotherapy;’[34]

    ·‘the use of a walking stick;’[35]

    ·‘assistance 4 days per week...particularly when she has had a run of seizures;’[36]

    ·‘extra assistance…[as she has had] increasing seizures, two hospitalizations, fractured left hand, three moves to different temporary accommodation;[37]

    ·‘daily walks with supervision;’[38] and

    ·‘lamotrigine for her seizures.’[39]

    [34] EB-5. Attachment letter Dr Davaris, 16 October 2023.

    [35] EB-5. Attachment letter Dr Davaris, 25 October 2023.

    [36] EB-5. Attachment letter Dr Davaris, 19 August 2024.

    [37] EB-5. Attachment letter Dr Davaris, 27 August 2024.

    [38] EB-5. Attachment letter Dr Davaris, 1 October 2024.

    [39] EB-5. Attachment letter Dr Davaris, 14 February 2025.

20. Dr Davaris also endorsed a ‘seizure management plan’ for Ms Camilleri dated 28 November 2024 which lists her epilepsy/seizure diagnosis as Functional Neurological Disorder (‘FND’).[40] This seizure management plan did not include emergency medication prescribed for seizures; and noted that Ms Camilleri is ‘supported through verbal communication and reassurance…and ‘usually vomits towards the end of a type 1 seizure and is able to support her airways as needed’ and ‘usually feels confused and very tired.’[41]

    [40] EB-1 – H27, page 342.

    [41] EB-1 – H27, pages 343-344.

21. In Ms Camilleri’s ‘new material’ Dr Davaris also endorsed a ‘seizure management plan’ for Ms Camilleri dated 11 February 2025.[42] This plan also did not include emergency medication prescribed for seizures.

    [42] EB-5.

22. A script signed by Dr Davaris prescribing lamotrigine for Ms Camilleri dated 13 March 2025 and Lamotrigine Medline Plus Drug Information was also filed with the ‘new material’.[43]

    [43] Ibid.

    Dr Fatemeh Rezania, Neurology Registrar

23. Dr Rezania sent a letter to Dr Davaris dated 3 May 2019 after reviewing Ms Camilleri.[44] At this time Dr Rezania documented that Ms Camilleri was experiencing ‘stereotypical episodes of elementary auditory hallucinations with a ringing in the ears.’[45]

    [44] EB-1 – H5, pages 297-298.

    [45] EB-1 – H5, page 297.

    Dr Suhailah Hakami, Epilepsy Fellow, Neurology Unit, The Alfred Hospital

24. Dr Hakami wrote to the Doctor on Duty at the Burnley Street Medical Centre on 5 November 2021 regarding Ms Camilleri’s telephone appointment. Dr Hakami summarised Ms Camilleri’s 2019 event of concern and follow up at the neurology clinic in early 2020 where Ms Camilleri was told the ‘seizure was potentially psychological.’[46] Dr Hakami concluded ‘keeping an open mind…would be worthwhile as [she] has some substrate in the form of her stroke to cause seizures.’

    [46] H8, page 302.

    Dr Jonathan Baskin, Neurology Unit Fellow, Alfred Health

25. On 7 August 2024 Dr Baskin wrote a letter to Dr Davaris.[47] To summarise the letter repeats Ms Camilleri’s reporting of functional seizures, indicates that Ms Camilleri had not attended the neurology clinic since 2022, and that the clinic had invited Ms Camilleri to a ‘trial of lamotrigine.’

    [47] EB-1 – H24, pages 337-338. Also submitted in duplicate in EB-5.

    Mr Alexandre Durand Delongrais, Support Worker

26. Mr Durand Delongrais provided what appeared to be an undated personal statement and ‘examination responses’ in support of Ms Camilleri’s application. Mr Durand Delongrais states he is a ‘disability support provider’ since May 2015 and he assists Ms Camilleri with ‘mobility, personal care, daily living tasks and community access’. He also states he provides unpaid seizure supports.[48]

    [48] EB-6, pages 47-50 and 51-55.

    Ms Angela Chan, Occupational Therapist, Posity Pty Ltd

27. Ms Camilleri commenced occupational therapy services with Posity Pty Ltd on 22 May 2024 with an in-person assessment on this date. Ms Chan completed two further telephone assessments with Ms Camilleri on 24 and 30 May 2024. Ms Chan produced an occupational therapy support letter dated 6 June 2024[49] and a functional capacity assessment occupational therapy report dated 6 June 2024.[50]

    [49] EB-1 – H21, page 326; H22, page 329.

    [50] EB-1 – H22, page 323.

28. Ms Chan reported that Ms Camilleri:[51]

    ·‘Experienced atypical seizures that are still being investigated’[52]

    ·Had reported that ‘massage therapy was more effective in managing her discomfort than physiotherapy;’

    ·Should ‘engage with physiotherapy to develop and implement personalised programs and interventions to enhance [her] muscle and body strength… increasing mobility and independence in performing daily activities.’

    ·Is impacted with ‘balance and stability issues’;

    ·Should engage with a dietician.

    [51] EB-1 – H22, pages 324-335.

    [52] EB-1 – H21, page 320.

    Ms Natasha Lim, Occupational Therapist, Posity Pty Ltd

29. Ms Lim provided occupational therapy support letters on 25 September 2024[53] and 8 January 2025.[54] Ms Lim assessed Ms Camilleri via telephone call appointments in September 2024, October 2024 and January 2025[55] and based her assessment of Ms Camilleri on the May and June 2024 functional capacity assessment conducted by Ms Chan.[56]

    [53] EB-5.

    [54] EB-1 – H28, page 347.

    [55] EB-1 – H28, pages 347, 354.

    [56] EB-1 – H28, page 348.

30. Ms Lim’s 8 January 2025 report states that due to Ms Camilleri’s conditions, she experiences the following symptoms (also reported in Ms Chan’s June 2024 report):[57]

    ·Seizures;

    ·Confusion, forgetfulness, ‘difficulty thinking’;

    ·Nausea;

    ·Chronic pain;

    ·Subluxation; and

    ·Spasticity in her left hand.

    [57] EB-1 – H28, pages 347, 324.

    Ms Phi-Van Houston, Occupational Therapist, Crosslinks Rehabilitation Services

31. Ms Van Houston conducted a ‘home based assessment and professional analysis of [the] functionality’[58] of Ms Camilleri on 18 July 2023 and provided a written report to the Agency on 2 October 2023.[59]

    [58] EB-1 – H56, page 516.

    [59] EB-1 – H56, page 518.

32. Ms Van Houston reported she has over 30 years of experience within the occupational rehabilitation sector.[60]

    [60] EB-1 – H56, page 539.

33. Ms Houston reported that Ms Camilleri stated her ‘seizures were ‘still being investigated’.[61] With regard to Ms Camilleri’s physical impairments, Ms Houston reported that she was independent in the following functional areas: [62]

    [61] H56, page 519.

    [62] EB-1, H56, pages 524-529.

    ·Mobility and transfers, and uses mobility aids such as a single point stick;

    ·Dressing and grooming, but not fingernail or toenail care;

    ·Toileting and showering, but has difficulties with hair washing;

    ·Eating, activities of daily living, though used aids and tools to assist;

    ·Some cleaning, such as with a stick vacuum, but requires assistance with laundry to attend the laundromat;

    ·Shopping online;

    ·Travelling by share rides;

    ·Communication, interaction and learning; and

    ·Self-management including financial management.

34. Ms Houston recommended that Ms Camilleri:

    ·‘would benefit from hands-on physiotherapy for her shoulder and neck for symptom relief’ and ‘questions the basis for which twice per week physiotherapy…was recommended by Dr Davaris;’[63]

    ·be provided a ‘personal alarm and seizure monitoring device to promote confidence and independence when accessing community settings independently;[64] and

    ·‘be provided with a home based exercise program to implement herself for the ongoing management between reviews.’[65]

    [63] EB-1 – H56.

    [64] H56, pages 528, 532

    [65] Ibid.

35. In summary, Ms Camilleri disputed Ms Houston’s report as being ‘inaccurate and subjective’.[66]

    [66] EB-6. pages 56 -58.

    CONSIDERATION

36. I consider that Ms Camilleri gave a sincere and forthright account regarding her submissions, circumstances, impairments, and needs. I accept Ms Camilleri’s preferred descriptor of support number 3[67] and concur with the Agency’s contentions that the descriptor of this support is not material to deciding the matter[68] and this is noted in the appropriate headings that follow from [70].

    [67] ‘Seizure supports of 8 hours per day on three-four days per week’.

    [68] EB-7 at [13].

1. I accept the Agency’s supplementary SFIC which explains how and why the amounts expressed for the funding for supports for Ms Camilleri were calculated and included in her previous plans. I also accept that the errors were made in giving effect to the terms of remittal orders and other factors such as the Compensation Reduction Amount (CRA) which is not within the scope of this review decision.[69]

   [69] EB-7 at [24]-[25].

2. I accept that on 8 January 2019 Ms Camilleri was granted access to the scheme on the basis of physical impairments related to a stroke.[70]

   [70] EB-1 - H76, page 1170.

3. Ms Camilleri contends that she also meets the section 24 NDIS Act ‘disability requirements’ on the basis of a ‘diagnosis of epilepsy/seizure diagnosis of FND’(‘epilepsy/FND’). Ms Camilleri relies on Dr Davaris’ certificates and the reports of Ms Lim and Ms Chan. Ms Camilleri did not contend that she met the early intervention requirements under section 25 of the NDIS Act with respect to epilepsy/FND.

4. I accept the medical evidence before me that Ms Camilleri is likely to have been diagnosed with the condition of epilepsy/FND, which may be likely to have led to her claimed neurological impairments.

5. The Agency contends that there is insufficient evidence to establish Ms Camilleri lives with impairments attributable to epilepsy/FND. Therefore, the Agency cannot recognise epilepsy/FND as a secondary disability for Ms Camilleri and therefore cannot grant her access to reasonable and necessary supports for impairments attributable to epilepsy/FND. Furthermore, the Agency contends that there is insufficient evidence to establish that Ms Camilleri satisfies either section 24 or section 25 of the NDIS Act so that any request for supports with respect to epilepsy/FND cannot be funded pursuant to section 34(1)(aa) of the NDIS Act.[71]  

   [71] EB-1 – H2; EB-2; EB-7.

6. On balance I accept that Ms Camilleri has a diagnosis of epilepsy/FND. However, there is insufficient evidence to allow me to make a decision about whether Ms Camilleri has for the purpose of section 24 or section 25 of the NDIS Act a disability due to impairments attributable to epilepsy/FND.

7. I turn now to consider Ms Camilleri’s 14 requested supports under headings.

   Ms Camilleri’s 14 requested supports

   Massage

8. Ms Camilleri seeks funding for massage by a non-allied health therapist two to three times per week.

9. Ms Camilleri’s evidence is that she:

   ·‘Requires regular massage to manage muscle spasticity, pain and circulation issues resulting from stroke-induced paralysis and ongoing neurological conditions;’[72]

   ·Should not have to ‘only [use] allied health professionals for massage services [as it] increases costs unnecessarily, reducing participant choice and control, which goes against NDIS principles.[73]

   [72] EB-1 – H3, page 34; EB-6, page 13.

   [73] H3, page 34.

10. The Agency contends that Item 10 of clause 1 of schedule 2 of the Transitional Supports Rules stipulates that massage that is not provided by an allied health professional for disability related purposes is not a NDIS support.

11. I am satisfied that the funding of massage by non-allied health therapists is excluded under Schedule 2 of the Transitional Supports Rules.

12. Section 34(1)(f) of the NDIS Act is not satisfied on the basis that this support is not a NDIS support for the purposes of section 10 of the NDIS Act and the Transitional Rules. Massage therefore cannot be included in Ms Camilleri’s SOPS as a ‘reasonable and necessary’ support.

    Physiotherapy two times per week

13. Ms Camilleri requests funding for an extra physiotherapy session each week due to ‘impairments, including FND, stroke-related paralysis and chronic pain.’[74]

    [74] EB-5. Ms Camilleri written contentions, 18 March 2025, page 35.

14. I accept that physiotherapy is generally funded as a reasonable and necessary support under section 34 of the NDIS Act and that Ms Camilleri’s funding for physiotherapy will continue under her current SOPS.[75] Ms Camilleri seeks additional funding for physiotherapy support.

    [75] EB-4.

15. I am not persuaded that the evidence from Dr Davaris, Ms Chan or Ms Lim provided a sufficient rationale for the physiotherapy recommendation. I note that Ms Chan did not specify a recommended frequency for physiotherapy treatment. I note that Ms Lim assessed Ms Camilleri by telephone.

16. The Agency relies on Ms Houston’s report. The Agency contends that:

    ·An extra physiotherapy session may be ‘desirable’ for Ms Camilleri, but it is not ‘reasonable and necessary’ pursuant to section 34 of the NDIS Act; and

    ·Extra physiotherapy does not meet section 34(1)(c) of the NDIS Act as Ms Camilleri has not utilised the current physiotherapy funding.

17. I accept the Agency’s submissions. I do not consider it appropriate for the scheme to fund an additional physiotherapy session as a support when Ms Camilleri has not used the previous funding available to her. I cannot be satisfied that the additional funding represents value for money pursuant to section 34(1)(c) and of the NDIS Act. I note that comparable supports, for example the existing level of funding in Ms Camilleri’s current plan to attend the physiotherapist may be utilised to access funding for physiotherapy as a support.

18. I accept that Ms Camilleri moved house several times prior to the hearing, and this may have made it more difficult for her to access physiotherapy support. It is open to Ms Camilleri to submit a change of circumstances for the Agency to consider requesting additional funding for physiotherapy support once she is able to do so.

19. Therefore, additional physiotherapy cannot be included in Ms Camilleri’s SOPS as a reasonable and necessary support.

    Seizure supports, and seizure monitoring

20. Ms Camilleri seeks funding for seizure supports at 8 hours per day for 3 – 4 days per week. Ms Camilleri contends that the Agency’s ‘refusal to fund seizure supports is not just negligence – it is a reckless and deliberate disregard for my safety, legal rights and human dignity.’[76]

    [76] EB-6, page 7.

21. Ms Camilleri seeks funding for seizure monitoring for ‘markets from Friday – Sunday for 8 hours per day’. Ms Camilleri contends that the Agency’s ‘refusal to fund seizure support actively excludes me from economic participation violating my right to financial independence.’[77]

    [77] EB-65, page 10.

22. Ms Camilleri’s two seizure management plans list her ‘epilepsy/seizure diagnosis’ as FND. I note Dr Davaris’ ‘seizure management plan’ report that Ms Camilleri’s seizure diagnosis was listed as FND which indicates that a psychogenic non-epileptic seizure (PNES) could indicate that the seizures may not be attributable to stroke under section 34(1)(aa) of the NDIS Act and that a seizure log was not provided. I give weight to Dr Davaris’ written evidence of a script in March 2025 for Ms Camilleri to be prescribed lamotrigine for her seizures[78] and note that it is open to Ms Camilleri to request the Agency conduct a reassessment of her plan at any future time, if required.

    [78] EB-5.

23. The Agency does not accept Ms Camilleri has impairments from FND for the purposes of section 34(1)(aa) of the NDIS Act. The Agency contends there is no evidence from a suitably qualified expert before the Tribunal which recommends these items as a support which addresses Ms Camilleri needs that arise as a consequence of her accepted physical impairments.

24. I accept Ms Camilleri’s evidence that she experiences seizures. I give little weight to Mr Durand Delongrais’ statements around these seizures because they do not assist me to determine whether the requested supports are reasonable and necessary. I do not consider that as a support worker, Mr Durand Delongrais has the necessary medical or clinical expertise to provide a medical opinion or diagnosis as to whether Ms Camilleri has ‘seizure requirements.’

25. I accept the Agency submissions that there is insufficient evidence to demonstrate that Ms Camilleri has impairments attributable to epilepsy/FND which would satisfy either section 24 or section 25 of the NDIS Act. I cannot be satisfied that on the evidence before me of the extent that Ms Camilleri has impairments from epilepsy/FND nor that the condition has caused the loss of, or damage to Ms Camilleri’s physical, sensory or mental function.[79]  For this reason, these physical, sensory or mental function impairments attributed to epilepsy/FND will not be taken into account when assessing Ms Camilleri’s disability-related support needs for the purpose of deciding what supports are “reasonable and necessary supports” under section 34(1) of the NDIS Act.

    [79] EB-1 – H2 at [57].

26. I conclude that Ms Camilleri has impairments attributable to a physical disability in respect of the stroke she experienced when she met the ‘disability requirements’ under section 24 of the NDIS Act. It is these physical impairments only[80] which will be taken into account when assessing Ms Camilleri’s disability-related support needs and when deciding whether the requested supports are “reasonable and necessary supports” under section 34(1) of the NDIS Act.

    [80] EB-1, H26, pages 524-529.

27. It is unclear on the provided evidence what role stress plays in Ms Camilleri’s’ seizures and it unclear whether the seizures are directly related to Ms Camilleri’s primary disability of stroke which is relevant to section 34(1)(aa). It is unclear whether Ms Camilleri followed Ms Houston’s recommendations for seizure support such as the personal alarm and seizure monitoring devices.

28. I accept the Agency’s contentions that because I cannot be positively satisfied on the material that section 34(1)(aa) is satisfied with respect to the seizure-related supports it is unnecessary for me to determine the exact frequency or duration of Ms Camilleri’s requests for the two seizure-related supports.[81]

    [81] EB-7 at [8]-[14].

29. I find that any request for supports in relation to epilepsy/FND cannot be funded on the basis that section 34(1)(aa) of the NDIS Act is not satisfied.[82]

    [82] EB-1 – H2 at [51]-[75].

30. Funding for seizure support and seizure monitoring therefore cannot be included in Ms Camilleri’s SOPS as a reasonable and necessary support.

    Personal trainer

31. Ms Camilleri seeks funding for a personal trainer which is ‘essential for maintaining mobility, preventing functional decline and reducing the need for future care.’[83]

    [83] EB-6, page 17.

32. Item 4 of Schedule 2 of the Transitional Rules identifies that the following ‘Day- to day living costs - lifestyle’ are not NDIS supports for the purposes of section 10 of the NDIS Act:

    (q)  general health, fitness, social or recreational activity costs or services;

    (r)   membership and entry to a recreational club and standard gym equipment;

33. I accept the Agency’s submissions that:

    ·This support relates to a day-to-day living expense under Rule 5.1(d) of the Supports Rules;

    ·There is no evidence from a suitably qualified expert that recommends a personal trainer as a support to address Ms Camilleri’s needs that arise as a consequence of her physical impairments.

    ·Funding for a personal trainer as a NDIS support is excluded pursuant to Schedule 2 of the NDIS Supports Transitional Rules under 4(q).

34. I am satisfied that the services of a personal trainer are a recreational activity service.

35. Therefore, I am satisfied that the funding of a personal trainer for Ms Camilleri is specifically excluded under Schedule 2 of the NDIS Supports Transitional Rules.

36. This means that section 34(1)(f) of the NDIS Act is not satisfied on the basis that personal training is not a NDIS support for the purposes of section 10 of the NDIS Act and the Transitional Rules. Personal training therefore cannot be included in Ms Camilleri’s SOPS as a reasonable and necessary support.

    Hydrotherapy

37. Ms Camilleri contends hydrotherapy is a ‘medically necessary, cost-effective treatment.’ Ms Camilleri also contends she can use ‘products such as Kes-Vir swimwear and SoSecure Containment Briefs to ensure participation in water-based therapy.[84]

    [84] EB-6, page 19.

38. I accept that where hydrotherapy is provided by an appropriately qualified health professional it may be considered a scheme support for the purposes of section 10 of the NDIS Act. I consider that under the Supports Transitional Rules funding for hydrotherapy is a support contemplated by item 34 of schedule 1 of the Transitional Support Rules when it is provided by an appropriately qualified health professional.

39. I refer to rule 5.1(a) of the Supports Rules which state that support will not be provided or funded under the scheme if it is likely to cause harm to the participant or pose a risk to others. I accept the Agency contention[85] that Ms Camilleri’s correspondence including the quote for hydrotherapy sessions outlined that ‘our physiotherapists do not get into the pool and carers are not able to get into the pool with clients. Patients need to be fully independent in the water, fully continent...’[86]

    [85] EB-1 – H2 at [80].

    [86] EB-1 – H36, page 384.

40. I am not satisfied on the evidence that this requested support can be funded because of safety evidence. With respect to safety Ms Camilleri’s Seizure Management Plan indicates:[87]

    ·she has Type 1 seizures three times per week and that an ambulance is required if the seizure occurs in water;

    ·that fatigue and overactivity may trigger Ms Camilleri’s seizures and it is recommended that she have 1:1 supervision whilst swimming, and

    ·that she should shower rather than bathe.

    [87] EB-1 – H27, page 342; See also EB-5.

41. I accept the Agency’s contention that hydrotherapy is a ‘more physically demanding task and likely to cause significantly more fatigue than showering.’ I note that this contention is also supported by Ms Chan’s report that Ms Camilleri ‘finds showering challenging due to her fatigue, which limits her ability to perform the task for an extended period.’[88]

    [88] EB-1 – H21, page 328.

42. With respect to continence evidence, Ms Camilleri reported to Ms Chan that she ‘experiences incontinence issues’.[89] Ms Camilleri attended an 8 January 2025 Continence Assessment[90] and she receives funding for continence-related needs for both urinal and faecal incontinence. There was insufficient evidence provided to support Ms Camilleri’s contentions around ‘products’ for continence and whether they were accepted at her preferred hydrotherapy provider venue.

    [89] EB-1 – H21.

    [90] EB-1 – H2, at [84]; NDIS Continence Report of Shiva Tootoonchi Tabrizi dated 8 January 2025, pages 4-5.

43. On balance there is insufficient evidence before me to be satisfied that hydrotherapy is an evidence-based support that will maintain, improve, or help Ms Camilleri’s physical impairments. I cannot be satisfied that funding for hydrotherapy at ‘two to three times per week’ is a reasonable and necessary support to address her physical impairments under section34(1)(aa) of the NDIS Act nor that it represents value for money pursuant to section 34(1)(c) of the NDIS Act as there was insufficient evidence provided that the support would improve Ms Camilleri’s functional impairments.

44. This means that section 34(1)(c) of the NDIS Act is not satisfied on the basis that I cannot be satisfied that hydrotherapy is a reasonable and necessary support. Hydrotherapy therefore cannot be included in Ms Camilleri’s SOPS as a reasonable and necessary support.

    Support worker assistance

45. Ms Camilleri contends she requires an additional 8 hours per day for four weeks a year of support worker assistance whilst travelling overseas to ‘mitigate the risk of seizures, fatigue and confusion.’[91]

    [91] EB-1 – H21, page 322.

46. I am satisfied when considering the NDIS Supports Transitional Rules that funding for support worker assistance is a support contemplated by item 14 in Schedule 1 as being a NDIS Support for section 10 of the NDIS Act.

47. I accept the Agency’s contentions that Ms Camilleri’s request for extra support hours funding whilst travelling ‘relates primarily to Ms Camilleri’s seizures/FND condition.’ I cannot therefore be positively satisfied that this extra requested support meets the requirements of section 34(1)(aa) of the NDIS Act as outlined at [88] – [92] above.

48. I do not consider it is appropriate to increase Ms Camilleri’s funding for support worker assistance in the context of the current provision of funding for support workers for 3 hours per day at a 1:1 ratio for a maximum period of 14 days per year to allow for overseas travel and disability related support. Ms Camilleri’s current funding for support worker assistance is reasonable and necessary to meet her support needs that arise from the impairments for which she was granted access to the scheme pursuant to section 34(1)(aa) of the NDIS Act.

    Hand therapy

49. Ms Camilleri contends that ‘hand therapy is crucial…to maintain my functional independence’[92] and she requests additional funding for ‘once a week.’

    [92] EB-6, page 32.

50. Ms Houston opined that Ms Camilleri could:

    ·Benefit from hand therapy to ‘increase functional use of her left hand’; and

    ·Seek a ‘treatment program for hand therapy from the treating therapist’.[93]

    [93] EB-1 – H56, page 534.

51. Ms Camilleri is currently funded for 26 hours per year for occupational therapy. There is no evidence to positively satisfy the Tribunal that the treatment program referred to by Ms Houston has been sought. It would be open to Ms Camilleri to submit a change of circumstances form so the Agency could reconsider funding to support Ms Camilleri to work with a therapist to increase her functional capacity by improving the use of her left hand.

52. On balance, there is insufficient evidence to positively satisfy the Tribunal that weekly hand therapy is a reasonable and necessary support because the evidence does not specify the kind or frequency of therapy that is recommended by an appropriately qualified professional nor does it address Ms Camilleri’s functional impairments. Therefore, section 34(1)(aa) of the NDIS Act is not met.

53. I also refer to section 34(1)(c) of the NDIS Act and Rule 3.1(c) of the Supports Rules and note that insufficient evidence was provided to demonstrate that the requested support would be likely to reduce the cost of Ms Camilleri’s future supports in the long term.

54. This means that section 34 of the NDIS Act is not satisfied. Hand therapy therefore cannot be included in Ms Camilleri’s SOPS as a reasonable and necessary support.

    Dietician

55. Ms Camilleri wrote that the services of a dietician on a monthly basis are ‘essential to the management’ of her disability and the related impact on her functionality and that ‘weight gain is a direct consequence’ of her mobility issues.[94] It is unclear whether Ms Camilleri has yet engaged a dietician as recommended by Ms Lim.[95]

    [94] EB-1 – H3, page 79.

    [95] EB-1 – H28, page 359.

56. The Agency contends that Item 4(q) of clause 1 of Schedule 2 of the Transitional Support Rules declares that ‘general health, fitness, social or recreational activity costs or services are not NDIS Supports.

57. However, I am satisfied that dietician services are a NDIS support for the purposes of section 10 of the NDIS Act.[96] This is pursuant to Item 16(a) of Schedule 1 of the NDIS Supports Transitional Rules which provides that the following are ‘NDIS supports’ for the purposes of section 10 of the NDIS Act:

    Health supports that relate to the functional impact of a participant’s disability. This includes the following:

    (a) supports, services and assistive products to manage…respiration, nutrition, podiatry and foot care…

    [96] See Malouf v CEO, National Disability Insurance Agency [2025] ARTA 97 at [168]-[169].

58. Notwithstanding this, I consider that there is insufficient evidence to support Ms Camilleri’s requested support of a dietician because I cannot be satisfied the support represents value for money pursuant to section 34(1)(c) of the NDIS Act.

59. Funding for the services of a dietician therefore cannot be included in Ms Camilleri’s SOPS as a reasonable and necessary support.

1. It is open to Ms Camilleri to submit a change of circumstances form so the Agency can reconsider funding to support Ms Camilleri to work with an occupational therapist to increase her functional capacity by improving her mobility or exploring referral to a dietician or whether she could attend a dietician through the public health system.

   Art related activities

2. Ms Camilleri contends that she requires an additional 8 hours per week of support worker hours in order to work as a self-employed artist.[97]

   [97] EB-6, pages 25-26.

3. The Agency contends that there is no evidence to suggest that Ms Camilleri’s request is necessary to address her needs arising from her impairment pursuant to section 34(1)(aa) of the NDIS Act.

4. To the extent that Ms Camilleri seeks support workers for her self-employment the Agency contends that funding for a support which relates to Ms Camilleri’s employment are not scheme supports and would be covered by item 18 of clause 1 of Schedule 2 of the Transitional Support Rules.

5. I accept the Agency’s submissions regarding self-employment.[98] I am satisfied that item 18(b) covers ‘work-specific aids and equipment required to perform a job’ such as canvases used by Ms Camilleri. Item 18(c) covers ‘reasonable adjustments (including assistive products and workplace modifications) to access a workplace’ which could conceptually include a place of self-employment.

   [98] EB-1 – H2, at [96].

6. It was unclear whether Ms Camilleri sought this support with respect to her self-employment or for recreational purposes. However, even if Ms Camilleri requested the support workers to assist her for recreational purposes, I accept the Agency contentions that the requested support had insufficient evidence to demonstrate there was regard to current good practice pursuant to section 34(1)(d) of the NDIS Act.

7. This means that section 34 of the NDIS Act is not satisfied. Funding for the art related activities therefore cannot be included in Ms Camilleri’s SOPS as a reasonable and necessary support.

   Four weekly activities

   Jewish choir

8. Ms Camilleri requests transport and a support worker to attend Jewish choir for 2 hours once per week as ‘participating in the Jewish choir is not merely a social activity – it is a therapeutic intervention.’[99]

   [99] EB-6, page 30.

9. I accept the Agency contention that Item 4(h) of clause 1 of Schedule 2 of the Transitional Support Rules states that costs associated with recreational activities are not NDIS supports. I also accept that choir attendance is a ‘recreational activity.’

10. There was insufficient evidence to positively satisfy me that Ms Camilleri’s attendance at choir was a ‘therapeutic intervention’ pursuant to section 34(1)(d) of the NDIS Act.

11. In addition, section 34(1)(f) of the NDIS Act is not satisfied on the basis that recreational activities are not a NDIS support for the purposes of section 10 of the NDIS Act and the Transitional Rules. 

12. This means that section 34 of the NDIS Act is not satisfied. Funding to attend a Jewish choir therefore cannot be included in Ms Camilleri’s SOPS as a reasonable and necessary support.

    Transport for piano lessons

13. Ms Camilleri requests ‘transport to attend piano lessons at 2 hours once per week because ‘it is a necessary therapeutic support’ and ‘piano lessons help maintain my cognitive and physical function.’[100]

    [100] EB-6, page 28.

14. It is unclear whether Ms Camilleri currently attends piano lessons and why two hours of transport are requested.

15. Currently Ms Camilleri receives transport funding of $1,784.00 which is plan managed and is a flexible support.[101] This means that Ms Camilleri can use this funding however she chooses.

    [101] EB-4.

16. I accept the Agency submissions that Ms Camilleri has not exhausted ‘her transport funding.’[102] I find that Ms Camilleri’s current transport budget appears sufficient to meet any reasonable and necessary transport costs.

    [102] EB-1 – H2, at [104].

17. I accept the Agency contentions that Ms Camilleri has not produced evidence to suggest that she meets the criteria for level 3 transport support. In these circumstances I am not satisfied that Ms Camilleri’s transport costs should be increased as it is inconsistent with the Agency’s Operational guidelines.[103] I am not satisfied that funding of this support satisfies the reasonable and necessary criteria pursuant to section 34 of the NDIS Act.

    [103] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1970) 46 FLR 409 at [420]-[421].

    Scrabble club

18. Ms Camilleri contends that she ‘requires community access with a support worker, to safely engage in social activities [such as] scrabble club at 3 hours once per week as ‘public transport is not a viable alternative as my unpredictable seizures, cognitive fatigue and mobility limitations make it unsafe.’[104]

    [104] EB-6, page 29.

19. I accept the Agency contention that Item 4(h) of clause 1 of Schedule 2 of the Transitional Support Rules states that costs associated with recreational activities are not NDIS support.[105] I also accept that attendance at scrabble club is a recreational activity.

    [105] WVGM v Chief Executive Office of the National Disability Insurance Agency [2025] ARTA 47 at [208].

20. This means that section 34(1)(f) of the NDIS Act is not satisfied on the basis that scrabble club, as a recreational activity, is not a NDIS support for the purposes of section 10 of the NDIS Act and the Transitional Rules so it cannot be included in Ms Camilleri’s SOPS.

    Crossbow training

21. Ms Camilleri contends that she plans to undertake crossbow training for 3 hours once per week ‘for therapeutic purposes.’[106]

    [106] EB-1 – H3, page 96.

22. There was insufficient evidence to positively satisfy me that Ms Camilleri’s attendance at crossbow training was a ‘therapeutic intervention’ pursuant to section 34(1)(d) of the NDIS Act.

23. I accept the Agency contentions that Item 4(h) of clause 1 of Schedule 2 of the Transitional Support Rules states that costs associated with recreational activities are not NDIS support. I also accept that crossbow training may be construed as a recreational activity.

24. Furthermore, the Agency contends that a crossbow is a ‘prohibited weapon’ in Victoria.[107] The Agency contends there is no evidence that Ms Camilleri has a relevant exemption or an approval under the Weapons Act. Pursuant to item 23(e) of clause 1 of schedule 2 of the Transitional Support Rules, firearms and weapons (whether lawfully possessed or otherwise) are declared not to be NDIS supports.

    [107] Control of Weapons Act 1990 (Vic) s3 (definition, ‘prohibited weapon’), read with the Control of Weapons Regulations 1990 (Vic), reg 8 (authorising provision); and schedule 2, item 13 (prescription of prohibited weapon as including a ‘crossbow’). Section 5(1) of the Control of Weapons Act 1990 makes it an offence to bring or cause to be brought a prohibited weapon into Victoria. Section 5AA of the Weapons Act, section 8B or an approval (under the Weapons Act section 8C. Victoria Police maintain a policy guidance document relevant to crossbow licencing and rules in Victoria.

25. I am persuaded by the Agency’s contentions that I cannot be satisfied that the provision of this support satisfies the reasonable and necessary criteria under section 34(1)(f) of the NDIS Act on the basis that crossbow training is not a NDIS support for the purposes of section 10 of the NDIS Act and the Transitional Rules so it cannot be included in Ms Camilleri’s SOPS.

26. This means that section 34 of the NDIS Act is not satisfied. Funding for crossbow training therefore cannot be included in Ms Camilleri’s SOPS as a reasonable and necessary support.

    Plan duration – two to three years

27. Ms Camilleri contends she requires a two-to-three-year plan because ‘frequent plan reviews are unnecessary, burdensome, and legally unjustified as my disabilities are permanent and my core support needs remain stable. These frequent reviews cause stress, disrupt my business and increase my administrative burden’.[108]

    [108] EB-6, page 31.

28. I am not satisfied there is sufficient evidence to support Ms Camilleri’s contentions. I agree with the Agency that a 12-month plan is the most appropriate duration. This is because there is need for consistent support interventions over the year and then a review of how Ms Camilleri has used the supports and the reported efficacy of the supports in line with the recommendations of Ms Camilleri’s practitioners.

29. I accept the Agency’s contentions that a 12-month plan is appropriate because there is insufficient evidence to demonstrate that Ms Camilleri has had opportunity to engage in the physiotherapy and occupational therapy supports as recommended by Ms Houston, Ms Chan and Ms Lim. I note that the purpose of these assessments is so that Ms Camilleri’s needs may be evaluated, and the SOPS may be tailored to her needs in order to build her functional capacity.[109]

    [109] EB-1 – H2, at [111].

    Yoga

30. Ms Camilleri contends that yoga once per week is ‘an essential therapeutic practice that directly contributes to physical and mental health’.[110]

    [110] EB-1 – H3, page 99.

31. I accept the Agency’s submissions that:

    ·This support relates to a day-to-day living expense under Rule 5.1(d) of the Supports Rules.

    ·There is no evidence from a suitably qualified expert that recommends yoga as a support to address Ms Camilleri’s needs that arise as a consequence of her accepted impairments.

    ·Funding for yoga as a NDIS support is excluded pursuant to Schedule 2 of the NDIS Supports Transitional Rules under 4(q).

32. I note that item 4 of Schedule 2 of the Transitional Rules identifies that the following ‘Day- to day living costs - lifestyle’ are not NDIS supports for the purposes of section 10 of the NDIS Act:

    (s)   general health, fitness, social or recreational activity costs or services;

    (t)    membership and entry to a recreational club and standard gym equipment;

33. I am satisfied that a yoga class may be categorised as a fitness or recreational activity service. Therefore, I am satisfied that the funding of yoga for Ms Camilleri is specifically excluded under Schedule 2 of the NDIS Supports Transitional Rules.

34. This means that section 34(1)(f) of the NDIS Act is not satisfied on the basis that yoga is not a NDIS support for the purposes of section 10 of the NDIS Act and the Transitional Rules so cannot be included in Ms Camilleri’s SOPS.

35. This means that section 34 of the NDIS Act is not satisfied. Funding for yoga therefore cannot be included in Ms Camilleri’s SOPS as a reasonable and necessary support.

    Nail cutting in a salon

36. Ms Camilleri contends that her preference to attend at a nail salon is ‘more cost effective’ than paying a podiatrist to cut her nails.[111]

    [111] EB-6, page 22.

37. I accept the Agency’s contentions that:

    ·It is reasonable and necessary for an additional 10 hours per year of capacity building-other professional- funding to be included in Ms Camilleri’s SOPS to allow her to access podiatry related support (including nail care). I understand this would be to cut Ms Camilleri’s toenails.

    ·Funding for nail salon attendance as a NDIS support is excluded pursuant to item 5(e), clause 1 of Schedule 2 of the NDIS Supports Transitional Rules. This declares that manicures, pedicures, false nail application or removal of any kind, nail painting and removal, nail decorations, nail piercings, hand or foot massage or treatment are not NDIS supports. I accept that funding the support of hand nail cutting is covered by item 5(e).

38. I accept that Ms Camilleri requires assistance to cut her toenails and hand nails due to the physical impairment in her hand. However, I am persuaded by the Agency’s contentions that Ms Camilleri’s current funding for self-care support worker assistance is sufficient for this purpose. Ms Camilleri has support workers who provide self-care to her, and it would be reasonable for her to seek hand nail cutting assistance. I am satisfied that the funding of podiatry for Ms Camilleri is reasonable and necessary for the maintenance of Ms Camilleri’s toenails.

39. Section 34(1)(f) of the NDIS Act is not satisfied on the basis that nail cutting in a salon is not a NDIS support for the purposes of section 10 of the NDIS Act and the Transitional Rules.

40. This means that section 34 of the NDIS Act is not satisfied. Funding for nail cutting at a salon therefore cannot be included in Ms Camilleri’s SOPS as a reasonable and necessary support.

    DECISION

41. The decision under review is affirmed pursuant to section 105(a) of the ART Act.

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5.       I certify that the preceding 163 (one hundred sixty three) paragraphs are a true copy of the reasons for the decision herein of General Member S Collins.

…………............

Associate

17 April 2025

Dates of hearing:

Date final submissions received:

18 March 2025, 1 April 2025

1 April 2025

Advocate for the Applicant:

Kimberley Camilleri
(Self-represented)

Solicitor for the Respondent:

Alice Dowell
(National Disability Insurance Agency)

Counsel for the Respondent:

Arron Hartnett