CBYW and National Disability Insurance Agency (NDIS) [2025] ARTA 548 (1 May 2025)
Applicant: CBYW
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2023/5109
Tribunal: Senior Member J Collins
Place: Brisbane
Date: 1 May 2025
DECISION:
Pursuant to subsection 105(c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with a direction that within 28 days of this decision CBYW’s statement of participant supports specifies for Specialist Disability Accommodation as follows:
· SDA Building Type: Villa/Duplex/Townhouse, one resident, with onsite overnight assistance
· Design Category: High physical support
· Location: New South Wales – Central Coast
................[SGD].................
Senior Member J Collins
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME
Limb girdle muscular dystrophy – reasonable and necessary supports – section 34 National Disability Insurance Scheme Act 2013 (Cth) – Specialist Disability Accommodation –– SDA needs requirements - decision remitted
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act) (Cth)
Administrative Review Tribunal Act 2024 (Cth) s105
National Disability Insurance Scheme Act 2013 (Cth) s10, s33, s34, s35, s99, s103
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)- s129
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 (Specialist Disability Accommodation) Rules 2020 (Cth) – Rules 5, 11, 12, 13, 14, 15, 16, 17, 18
Cases
G v Minister for Immigration and Border Protection [2018] FCA 1229
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
XYZ v Commonwealth [2006] HCA25; (2006) 227 CLR 532
Minister for Home AffairsvG [2019] FCAFC 79
Secondary Materials
NDIS – Operational Guidelines – Reasonable and necessary supports
NDIS Operational Guidelines – Specialist Disability Accommodation as at 14 February 2025
STATEMENT OF REASONS
BACKGROUND
CBYW, a 15-year-old boy, is a participant of the National Disability Insurance Scheme (‘the scheme’).
CBYW became a participant in the scheme in 2016 on the basis of meeting the access requirements due to a physical impairment as a consequence of limb girdle muscular dystrophy (‘LGMD’).[1]
[1]Respondent’s SFIC paragraph 5.
On 6 December 2022 the National Disability Insurance Agency (the Agency) approved a statement of participant supports (SOPS) for CBYW.
CBYW requested a review of his SOPS in February 2023. In doing so he requested Specialist Disability Accommodation (SDA) for one resident, villa/duplex/townhouse with high physical support and overnight onsite assistance.[2]
[2] T3.
SDA is defined as follows:[3]
accommodation for a person who requires specialist housing solutions, including to assist with the delivery of supports that cater for the person’s extreme functional impairment or very high support needs.
[3]Rule 5, National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth)
On 21 June 2023 the Agency conducted an internal review and confirmed its decision on 21 June 2023 (‘the decision under review’).[4]
[4] T1A, Subsection 100(6) NDIS Act.
On 14 July 2023, CBYW applied to the Administrative Appeals Tribunal (‘AAT’) for a review of the Agency’s decision not to fund SDA for CBYW as a reasonable and necessary support.[5]
[5] T1.
From 14 October 2024, the 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), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
CBYW did not attend the hearing. At the hearing, CBYW’s father and an independent disability advocate, Ms Prakash advocated on his behalf. The Agency was represented by Ms Douglas-Baker of Counsel, instructed by Mills Oakley Lawyers.
ISSUES
10. The issues before the Tribunal are whether:
Firstly, CBYW is ‘eligible’ for SDA under rule 11 of the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth);
Secondly, on the basis that CBYW is ‘eligible’, whether SDA is a ‘reasonable and necessary support’ for CBYW under section 34 of the National Disability Insurance Act 2013 (‘NDIS Act’); and
· Thirdly, on the basis CBYW is ‘eligible’ for SDA and it is also a ‘reasonable and necessary support’ for him, whether the following features of SDA are most appropriate for CBYW under Rule 15 of the SDA Rules:
oBuilding Type: Villa/duplex/townhouse, one resident, with onsite overnight assistance
oDesign Category: High physical support
oLocation: New South Wales – Central Coast.[6]
[6] SFIC para 14.
11. The Agency contends that CBYW is not eligible for SDA and that it is not a reasonable and necessary support for him pursuant to the statutory scheme. The Agency further contends that complex home modifications are all that is required in order to meet the disability needs requirements of CBYW at this present point in time.
THE LEGAL FRAMEWORK
National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act)
12. Section 34 of the NDIS Act identifies what constitutes a ‘reasonable and necessary’ support under the scheme.
13. At the time of CBYW’s application to the AAT, 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 National Disability 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).
14. On 3 October 2024, and prior to the completion of this review, the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (‘the Amending Act’) made a range of ‘amendments’ to the NDIS Act.
15. These amendments in respect of the requirements of section 34 of the NDIS Act will apply to this review.[7]
[7] Section 129 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024.
16. Section 34 of the NDIS Act, as amended, now provides as follows (emphasis of amendments added by the Tribunal):
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.
(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). (emphasis of amendments)
17. Subsection 34(1) of the NDIS Act is cumulative and therefore all of the criteria must be met.
18. Paragraph 34(1)(aa) of the NDIS Act, which is an amendment, imposes an additional requirement of the criteria. This additional requirement is the consideration of whether the support is necessary to address the needs of CBYW which arise from the impairment/s for which he meets the disability requirements.
19. Subsection 34(1)(f) of the NDIS Act is also an amendment; however, it is a replacement of an ‘old provision’ with a ‘new provision’.
20. This new provision of subsection 34(1)(f) of the NDIS Act requires that the support is an ‘NDIS support’.
21. Also relevant to this review is the inclusion of section 10 of the NDIS Act, also made pursuant to the Amending Act. Section 10 of the NDIS Act provides a definition of what constitutes an ‘NDIS support’ for the purposes of subsection 34(1)(f) of the NDIS Act (as amended). Section 10 of the NDIS Act provides 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 ( that 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.
22. Subsection 34(2) of the NDIS Act provides that the NDIS Rules may prescribe methods or criteria to be applied, or matters to which the CEO must have regard, in deciding whether the criteria under subsection 34(1) of the NDIS Act are met in respect of a requested support.
23. Section 35 of the NDIS Act provides for the making of rules in relation to prescribing reasonable and necessary supports or general supports that will be funded or provided under the NDIS. The relevant rules in respect of this review are the:
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘Supports Rules’);
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (‘Transitional Rules’); and
National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2013 (‘SDA Rules’).
24. Rule 3 of the Supports Rules relates specifically to subsections 34(1)(c)–(e) of the NDIS Act and provides as follows:
Value for money
3.1In 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
3.2In 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.
3.3In 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.
Reasonable family, carer and other support
3.4In 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
(v)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;
………………………………………………………………………………………
(c) for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.
25. Schedule 1 to the Transitional Rules identifies supports that are NDIS supports unless otherwise provided, for the purposes of subsection 10(1) of the NDIS Act. Likewise, Schedule 2 to the Transitional Rules identifies supports that are generally not NDIS supports for the purposes of subsection 10(1) of the NDIS Act.
26. In McGarrigle v National Disability Insurance Agency[8] at [43], Mortimer J (as Her Honour then was) made the following observations in respect of these rules:
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.
[8] McGarrigle v National Disability Insurance Agency [2017] FCA 308 (‘McGarrigle’).
27. The phrase ‘reasonable and necessary’ is not defined in the Act. It is a composite phrase and should be considered as such. In McGarrigle, Mortimer J also stated as follows:[9]
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”.
[9] Ibid at [91].
28. The Full Court in National Disability Insurance Agency v WRMF[10] also considered the meaning of reasonable and necessary supports, and stated as follows [149]–[151]:
The phrase is a composite phrase. We accept the Agency's submissions that 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 CLR 532 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.
[10] National Disability Insurance Agency v WRMF [2020] FCAFC 79 (‘WRMF’).
OPERATIONAL GUIDELINES
29. The Agency also issues Operational Guidelines in relation to what are considered ‘reasonable and necessary supports’ in a participant’s plan. There is no power conferred by the Act to make these Operational Guidelines, and they are issued in an exercise of executive power.[11] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines. However, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[12] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[13] where Mortimer J held:[14]
Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it.
[11] Minister for Home AffairsvG [2019] FCAFC 79 at [18].
[12] [1979] AATA 179 (1979); 2 ALD 634.
[13] [2018] FCA 1229.
[14] Ibid at [171].
30. Accordingly, unless the Operational Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in a determination of what is a reasonable and necessary support for CBYW. The Guidelines relevant to this review are the:
NDIS – Operational Guidelines – Reasonable and necessary supports; and
NDIS – Operational Guidelines – Specialist Disability Accommodation.
EVIDENCE
31. I have considered all the written evidence filed with the Tribunal and provided in the joint bundle, the oral evidence provided at the hearing on 3 and 4 April 2025, and the parties’ closing submissions. I will refer in my decision to some of the more salient aspects of the evidence. The fact however that I do not refer to all parts of the evidence does not mean that I have not taken all evidence before the Tribunal into account in reaching my decision.
Evidence about CBYW
32. The evidence overwhelmingly supports, and it is not disputed, that CBYW has a physical impairment as a result of LGMD.
33. CBYW was diagnosed with LGMD in 2015. LGMD is a degenerative and progressive condition. This means that CBYW’s physical condition will only deteriorate.
34. LGMD was described to the Tribunal as follows:
Limb Girdle Muscular Dystrophy (LGMD) usually manifests in the proximal muscles around the hips and shoulders and results in progressive weakness of the muscles of the upper and lower limbs, weakness of the breathing (respiratory) muscles, swallowing difficulties and weakness of the heart (cardiac) that can progress to cardiac failure. It also contributes to pain and fatigue.[15]
[15] Report by Michael Morris dated 24 July 2024.
35. CBYW lives in the family home with his parents, an older brother and a younger sister.
36. The family home is owned by CBYW’s parents, subject to a mortgage. It is a single storey, 3 bedroom home with 1 bathroom and 1 garage. The family have resided in this home since 2013 and before CBYW’s diagnosis of LGMD.[16]
[16] Exhibit 1 at 3.2.
37. CBYW’s sister is 6 years of age and shares a bedroom with her parents. CBYW and his brother have their own bedrooms.
38. In 2018 and 2020 the family home underwent a number of disability modifications which included the following:
· A front access threshold ramp;
· A rear access threshold ramp;
· Complex bathroom modifications; and
· The installation of a ceiling hoist in CBYW’s bedroom.
39. At the time of these modifications CBYW was however able to walk and use a manual wheelchair inside the family home.[17] Since these modifications CBYW’s physical condition has deteriorated significantly. CBYW can no longer walk, stand or weight bear. He is completely ‘wheelchair bound’. He cannot operate a manual wheelchair. He mobilises using a powered wheelchair operated by him using a joystick. He requires full assistance with showering, toileting and transfers to and from his bed into his powered wheelchair or mobile commode chair.
[17] Roper report page 429.
40. In January 2025 CBYW had spinal surgery. At the time of the hearing CBYW was recovering from this surgery.
41. CBYW’s funding under the scheme includes the following support worker support:
· Two support workers during the weekdays for 2 hours in the morning;
· Two support workers during the weekdays for 2 hours in the afternoon; and
· Two support workers for 2 hours on Saturday and Sunday.
42. CBYW attends high school 5 days per week. He does not have any intellectual or cognitive impairment. When at school the teacher aides assist him with personal cares.
43. CBYW’s father works full time. His mother works on a casual basis and her ability to work is limited due to CBYW’s care needs.
44. CBYW seeks funding for the following SDA:
Building Type: Villa/duplex/townhouse, one resident, with onsite overnight assistance
Design Category: High physical support
Location: New South Wales – Central Coast
Evidence of Mr Michael Morris
45. Mr Morris is an occupational therapist. He provided a report to the Tribunal[18] and also oral evidence at the hearing. I am satisfied that Mr Morris’ evidence was honest and truthful and in accordance with his obligations as an expert witness.
[18] Exhibit 1 – at 3.2.
46. Mr Morris’ report provided a number of recommendations based on an assessment of CBYW at his home in June 2024 in the presence of both parents. At that time CYBW was 14 years of age.
47. Mr Morris’ assessment referred to the following presentation at that time:
Significant muscle weakness and wasting in his limbs;
Poor muscle tone and core control;
Unable to stand or weight bear;
Impaired fine motor and gross motor function, coordination and control;
Limited active range of movement;
Dependent upon wheelchair for mobility;
Neuropathic pain in his limbs; and
Fatigue.
48. Mr Morris also referred to other co-existing medical conditions which included scoliosis, sleep apnoea and impaired cardiac and respiratory function.
49. Mr Morris’ opinion is that due to the degenerative nature of CBYW’s condition he expects that CBYW’s fine motor function and capacity to control his wheelchair will decline in the future.
50. In his report Mr Morris identified the following issues in relation to the family home insofar as CBYW’s disability needs were concerned:
· CBYW’s difficulty in negotiating the hallways and the doors to bedrooms due to limited circulation and clearance space;
· The hallway dimensions ranging between 850mm and 910mm. CBYW therefore requires multiple changes of direction, undertaken very slowly, to access doorways from hallways;
· Accessibility issues at the front and rear doors. The front door has a clearance of 800mm which is difficult for CBYW to negotiate in his wheelchair. The rear door has a clearance of 750mm. These clearances place CBYW at risk of hitting the doorframe with either his wheelchair, his hands or his limbs generally;
· There is a 100mm threshold step at the front door and a 150mm threshold step at the rear door of the family home. Tyrex ramps have been installed at both doorways. These ramps do not however provide a level landing for CBYW to stay on in order to prevent the risk of him ‘rolling back’ down the ramp;
· CBYW does not have the physical upper arm strength to open the front or rear doors independently;
· The dimensions of CBYW’s bedroom are 2670mm x 3930mm. It is difficult to accommodate his assistive aids in his bedroom which include his electric bed and powered wheelchair. The size of CBYW’s bedroom is such that his bed must be placed up against one of the walls.
· CBYW’s bed must be manually moved out from the wall for each transfer. This is so that a carer can be on either side of CBYW to transfer him into a sling from his bed and thereafter into his wheelchair or mobile commode, using a hoist;
· CBYW’s bed must also be manually moved out from the wall when CBYW is being dressed or undressed. This is on the basis that two people are required to dress and undress CBYW with one person being on either side of CBYW for this task;
· During transfers to and from his bed there is limited circulation space within CBYW’s bedroom to accommodate CBYW’s powered wheelchair or mobile commode and the two carers required for this task;[19]
· CBYW’s bedroom doorway clearance of 760mm is narrow, it is difficult for him to enter and exit his bedroom in his powered wheelchair;
· When exiting his bedroom, in addition to negotiating a 760mm bedroom doorway aperture he must also negotiate a 90 degree turn into a narrow hallway of 910mm;
· Due to his inability to actively move his limbs CBYW is at risk of injury from being hit by door frames;
· There is a 30mm threshold into the bathroom from the hallway. The bathroom doorway has an actual clearance of 860mm and is difficult to negotiate with a mobile commode chair. CBYW must be reversed into the bathroom by his carer. This will become more difficult as CBYW gets older and heavier;
· CBYW requires full assistance with all showering tasks. There is a glass panel on one side of the shower recess and this impacts and restricts the access of the carer assisting CBYW with showering. This configuration also forces carers to adopt unsafe postures and positions when assisting CBYW in the shower and represents a risk of musculoskeletal injuries to carers. [20]
[19] See para 66 – wheelchair and commode must be removed from room for transfers.
[20] Exhibit 1 – at 3.2.
51. Mr Morris’ report also referred to the following:
· CBYW’s inability to use his upper limbs to propel a manual wheelchair;
· CBYW is dependent upon a powered wheelchair operated by a joystick;
· The need to consider CBYW’s likely deterioration and future growth, which is likely to result in changes to the footprint of his assistive aids and his mobility aids;
· CBYW requires assistance with his post-toilet hygiene;
· CBYW is unable to carry objects. He requires assistance drinking from a water bottle;
· CBYW does not transfer into other chairs. He uses his powered wheelchair for sitting at his desk and dining table, also for watching TV;
· CBYW reported that he feels unstable negotiating the access ramps at the front and rear access of the family home. Mr Morris noted that due to CBYW’s limited core strength his balance can shift his sitting position in his wheelchair;
· Due the access issues at the front and back door CBYW is dependent upon others to enter and leave the family home. He is therefore unable to go into back yard independently;
· To access the shower recess or toilet facilities CBYW uses a mobile commode. He is transferred into his mobile commode from his bed using the ceiling hoist;
· Despite CBYW’s current ability to operate his powered wheelchair, due to the progressive nature of his condition, it is likely that CBYW’s fine motor function will deteriorate. This means that the accuracy of his ability to negotiate multi-turns with his wheelchair, performed very slowly, will decline;
· Currently CBYW regularly runs into door frames and hallway doors causing property damage;
· The family living room is 4950mm by 4950mm;
· CBYW’s bedroom contains his electric bed (1200mm x 2220mm), a work desk (1300 x 500mm), a wardrobe (1770 x 600mm) and a XY track and ceiling hoist;
· The doorway clearance into his brother’s and parent’s bedroom is 760mm.
52. In his report Mr Morris identified the following features as ‘key disability requirements’ for a suitable residence for CBYW:
· Stepless access into and out of his residence;
· Level/stepless access throughout his residence;
· Flooring surface to accommodate wheeled mobility aids;
· Frequently accessed areas of the home (i.e. bedroom, bathroom, living areas, dining area) to provide adequate circulation space for mobility aids and completion of/assistance with activities of daily living;
· Pathways of travel which provide adequate circulation/clearance space for mobility aids;
· A safe location/environment for CBYW’s carers to perform transfers and his personal care tasks;
· Access to aids that will optimise his independence (i.e. facilitate independence accessing his home, bedroom, entertainment equipment etc.);
· Accessible bathroom facilities.
53. In his report Mr Morris proposed the following home modifications:
· Stepless access into and out of the family home, achieved by replacement ramps of a lesser gradient and a level landing at the doorways;
· A replacement ramp with a more manageable gradient into the bathroom for CBYW’s mobile commode chair;
· Hybrid flooring;
· A bedroom for CBYW with greater circulation space to provide for safe bed transfers;
· Adequate clearance and circulation space in other areas of the house including hallways and other internal doorways;
· Door modifications/ widening and door automation. (the ‘Morris recommendations’)
54. Mr Morris identified that the replacement of the bathroom ramp would be a minor modification. The remaining modifications however could not be addressed with minor modifications. They would require structural changes, exceeding $20,000 and therefore require Council approvals and certification.
55. In order to achieve the Morris recommendations Mr Morris identified effectively what he considers are two options of ‘complex home modification’.
56. ‘Modification one’ involves widening CBYW’s bedroom. ‘Modification two’ involves converting the existing garage into a habitable bedroom and combined accessible bathroom for CBYW and a laundry.
57. Mr Morris estimated the costs of Modification one in the range of $175,000.00– $200,000.00. The costs of Modification two were estimated in the range of $180,000.00–$195,000.00.
58. In addition to these estimated costs, other expenses and relevant considerations were identified by Mr Morris. They included the following:
· Relocation costs during the completion of modification works;
· Consultation with an architect, structural engineer and site surveyor to confirm viability with council;
· An architect and site surveyor to assist with completion of Development Applications to council; and
· Specification of the scope of works to enable builders to provide accurate quotes.
59. Mr Morris’ oral evidence can be summarised as follows:
· Two people are required to assist with CBYW’s transfers using the hoist. Firstly CBYW’s bed must be moved out from the wall so that a carer can be on either side of CBYW to place him in the sling that forms part of the hoist. One person must operate the hoist and the other person must support CBYW’s lower limbs;
· CBYW has no ability to control the movement of his lower limbs when he is positioned in the hoist. When in the hoist CBYW’s body can swing with momentum and his legs can ‘strike out’. He also requires assistance to avoid neuropathic pain in his limbs;
· To position CBYW in his wheelchair or mobile commode via the hoist the arm rests of each piece of equipment must be removed. Once CBYW is positioned the arm rests must be re-fitted by carers;
· CBYW requires assistance to be positioned in the family motor vehicle so that the pin and lock system can be ‘engaged’. The pin and lock system secures CBYW’s wheelchair to the floor of the motor vehicle;
· CBYW’s upper arm function is significantly impaired. His arms and hands need to be ‘positioned’ so that he can undertake fine motor activities such as a craft;
· Due to muscle wastage and poor strength CBYW cannot lift his arms. He does not have the physical strength to lift a cup of water to his mouth to drink. He requires assistance with drinking which is provided by others holding a water bottle with a straw to his mouth;
· CBYW’s limitations go beyond his shoulders. His condition is degenerative and will worsen. Currently his proximal muscles are affected. In time his distal muscles will also be affected;
· CBYW cannot raise his arms, lift items or undo the lid of a jar. The weakness of CBYW’s shoulders extends to the operation of his upper limbs;
· CBYW cannot lift a plate or a bowl. To eat he lowers his head to his plate. Currently he can use a spoon, but does not have the physical strength to cut food;
· CBYW cannot access the kitchen or the laundry in his home;
· CBYW requires assistance with dressing, showering and post-toilet hygiene;
· The aperture of the toilet in the family home does not align with the aperture of his mobile commode chair;
· CBYW can hold a urinal bottle ‘steady’ provided he is set up with the urinal bottle on his lap;
· CBYW does not feel stable on the access ramps. He does not have the core strength, or the strength in his limbs to prop himself up or push himself back into position. CBYW describes a feeling that he is going to ‘fall out of his chair’;
· He does not recommend automation of the bathroom door on the basis that CBYW requires full assistance to use the bathroom;
· The garage of the family home is currently classified as a non-habitable dwelling. To proceed with Modification two the garage would need to be upgraded to a ‘Class 1A dwelling.’ Furthermore, a new ‘tracking’ would be required to be fitted to be compatible with the existing hoist. The garage flooring would also need to be raised approximately 100mm to provide level access to the remainder of the house;
· Mr Morris acknowledged the fact that the garage was currently used as storage was a complicating factor of Modification two;
· CBYW does not have the capacity to prepare meals or undertake laundry;
· That the two modifications he proposed were only a ‘theoretical design’. Their viability would need to be confirmed with structural engineers and builders. Furthermore, that he could not guarantee that any of the options proposed would be viable in the absence of Council approval, which may include a development application.
Evidence of F and M
60. F is CBYW’s father, M is CBYW’s mother.
61. F and M provided a joint carer impact statement.[21] CBYW’s parents wish to care for CBYW for as long as possible to ensure they can ‘continue to fill gaps that simply cannot be offered in the same way as formal carers’. They would like to do so in a home that is safe and designed with features suited to CBYW’s disability needs.
[21] T9.
62. In their joint impact statement they state:
The current family/standard home is not built to suit CBYW's level of disability and is not conducive to allowing the combination of formal and informal care to be sustainable and or safe for him.
63. They refer to CBYW’s inability to undertake basic tasks such as cutting paper or opening pen lids. Throughout the night they must re-position CBYW in his bed several times.
64. They explain that CBYW enjoys cooking but is unable to physically use the kitchen. Also, that CBYW’S bedroom is full of AT equipment which means that he is unable to use his bedroom for schoolwork and other activities.
65. They refer to CBYW’s inability to go to a friend’s for a ‘sleepover’ or to have a friend to his home for a sleepover. They also state that CBYW ‘has been unable to develop his social peer support at home as he is embarrassed that there is barely enough space for his wheelchair and he is unable to use the chair freely, the walls attached to the hallway make it almost impossible for him to move about without crashing into the walls. He has as a result become withdrawn and his mood impacted significantly.’
66. F also gave oral evidence at the hearing. I am satisfied that F’s evidence was honest, truthful and without exaggeration. Summarised, F’s oral evidence was as follows:
· Their family culture involves living together and staying together as long as possible as a ‘united family’;
· There is a lot of equipment in CBYW’s bedroom;
· CBYW’s wheelchair is 620mm wide;
· CBYW can only access the dining room to the extent he can sit at the end of the dining table which is situated at the entrance of the dining room;
· In order for CBYW to go further into the dining room, the dining chairs and a sofa in the dining area must be moved. This means that CBYW is effectively ‘stuck’ at the end of the dining table;
· CBYW likes all kinds of food. He will often request that certain groceries are purchased for particular recipes. He enjoys researching recipes online, also YouTube video cooking demonstrations;
· CBYW enjoys baking. He will often provide his mother with a recipe which she will bake. He is also able to participate in cooking activities such as decorating cupcakes;
· Whilst CBYW has limited physical capacity to assist with meal preparation he has an ‘interest’ in meal preparation. He likes to participate in so far as he is able to. This includes being around the kitchen and socialising with whoever is preparing the meal;
· F does not want CBYW to live his life ‘confined’ to his bedroom or sitting at the end of the dining table;
· Due to the lack of circulation space in the living areas of the family home there are safety risks. This includes CBYW’s wheelchair colliding with other people, furniture and property structures;
· When at home CBYW does not like isolation. He enjoys spending time being around other members of his family;
· CBYW’s older brother is now a university student;
· F stated that in the context of the garage having a sloping ceiling a mounted hoist was not realistic;
· Neither of the options proposed by Mr Morris solved the issues related to sufficient circulation space for CBYW’s wheelchair in the majority of the house, or storage problems;
· CBYW requires toileting during the night at times;
· Once CBYW has recovered from his spinal surgery it is anticipated that he will use his standing frame to weight bear in a stationary position for short periods of time;
· CBYW also has a mobile hoist which is used during electricity ‘blackout’ times or when the wall mounted hoist in his bedroom is under maintenance. F described the mobile hoist and CBYW’s paediatric sized wheelchair as important ‘backup’;
· F explained that historically during a power outage CBYW had been ‘stuck’ in his bed for up to two days;
· CBYW is still recovering from spinal surgery and currently does not have the strength to hold a urinal bottle or to bend over a plate to feed himself with a spoon;
· In order to transfer CBYW into his hoist from his bed, his wheelchair must first be taken out of his bedroom and moved into the loungeroom. This is to provide two carers with sufficient room to transfer CBYW into the hoist following manual movement of the bed from the wall. Once CBYW is in the hoist CBYW’s bed must be moved back against the wall. His wheelchair must then be brought back into his bedroom so that CBYW can be transferred from the hoist into the wheelchair. Historically there have been accidents with these transfers;
· In winter there is also a heater in CBYW’s bedroom. This further compounds the limited space in CBYW’s bedroom;
· Since his surgery CBYW has struggled with the ramps at the front and rear access of the home. F stated ‘He has more weakness in his body’;
· F explained that the bathroom ramp proposed by Mr Morris was not appropriate. This was on the basis that a 90 degree turn was required out of the bathroom and one of the castor wheels of the mobile commode would become stuck on the portion of the ramp that protruded;
· F has himself installed some home automation in CBYW’s bedroom. This includes lighting and a door opener;
· CBYW uses his powered wheelchair as a lounge chair and for sitting at the dining room table and the desk in his bedroom;
· If CBYW was able to be in his wheelchair in the kitchen it would be unsafe for another person to be in the kitchen. This is because of the size of the kitchen and the safety to the other person when CBYW is manoeuvring his wheelchair;
· The modifications proposed by Mr Morris were ‘patchwork’ measures;
· Modification one as proposed by Mr Morris, which involved widening of CBYW’s bedroom[22] was not an appropriate option for the following reasons:
[22] Image 48 report of Morris.
·When exiting his bedroom into the lounge room, due to the position of one of the lounge chairs there was insufficient circulation and turning space for CBYW’s wheelchair;
·When entering the front door there would be difficulty negotiating the right turn into CBYW’s bedroom due to the lounge chair and coffee table;
·When exiting the bathroom on his mobile commode and into his bedroom there is an ongoing risk of water spills in the hallway. This is a slip risk for others.
· Modification two, which involved conversion of the garage into a bedroom and bathroom for CBYW was also not realistic for the following reasons:
·The garage floor would have to be raised by 100mm to achieve level access to the remainder of the house;
·The garage has a sloping roof with a height ranging between 2.1 and 2.4m. This height would be reduced with the raising of the garage floor;
·There is no ability to raise the ceiling height of the garage ceiling as the gyprock was already in close contact with the roof tiles and supporting timber beams;
·The conversion of the garage into a bedroom and bathroom for CBYW will result in no storage area for the family and CBYW’s backup items which include his standing frame, paediatric wheelchair and mobile hoist.
Evidence of Danielle Brown
67. Ms Brown is an occupational therapist. She assessed CBYW ‘remotely’ and provided a report dated 10 June 2022.[23] Ms Brown also gave oral evidence at the hearing. I am satisfied that Ms Brown’s evidence was honest and truthful and in accordance with her obligations as an expert witness.
[23] T4.
68. At the time of her assessment CBYW was 12 years old and using a paediatric wheelchair. Ms Brown’s report included the following commentary:
· The modifications, undertaken some years ago to CBYW’s home, were now grossly inadequate to accommodate CBYW’s rapidly changing function;
· The home did not meet CBYW’s needs;
· Future modifications are not feasible due to the inadequate size of the bedrooms and bathrooms;
· The circulation space that is stipulated by Australian Standards – 1428.1 cannot be achieved within the home due to the small room sizes;
· The hallway width adjacent to the bedroom and bathroom is 900mm. This is grossly inadequate to enable CBYW to drive his powered wheelchair safely, or for the safe manual handling by carers when manoeuvring CBYW on his mobile commode chair;
· CBYW is unable to access the bedrooms of other family members.
69. Ms Brown recommended the following SDA for CBYW:
· Single occupancy;
· Family to live in SDA;
· Villa/duplex/townhouse;
· High physical support.
70. Ms Brown also provided oral evidence at the hearing. Ms Brown’s oral evidence can be summarised as follows:
· Modification one as proposed by Mr Morris increased the size of CBYW’s bedroom providing increased circulation space in his bedroom. This however would make the lounge room even smaller. It also did not provide an outcome whereby CBYW could access other areas of the home such as the laundry and kitchen;
· As an occupational therapist her expertise required consideration of ‘occupational roles’ and this included both physical and social environments. Modification one does not provide CBYW with the option of engaging in all of the roles that are available to other persons of his age;
· CBYW’s participation in kitchen activities could include looking up recipes, making choices about food according to his preferences;
· The ability to participate in kitchen activities would enable CBYW’s social participation.
Eligibility under the SDA Rules
71. The SDA Rules provide the criteria that a participant must satisfy in order to be ‘eligible’ for SDA (the ‘eligibility criteria’).
72. Importantly, eligibility for SDA does not equate automatically with an ‘entitlement’ to receive funding for SDA under the scheme.
73. Satisfaction of the ‘eligibility criteria’ has the effect of establishing only whether CBYW meets the required criteria in order to be ‘considered’ for SDA. As such there still remains the additional mandatory requirement for a participant who has met the eligibility criteria to satisfy the mandatory criteria of subsection 34(1) of the NDIS Act.
74. SDA will therefore only be funded under the scheme in circumstances where a participant:
· Firstly, meets the eligibility requirements prescribed under Rule 11 of the SDA Rules, and
· Secondly, also meets the criteria prescribed by subsection 34(1) of the NDIS Act.
75. Section 11 of the SDA Rules prescribes the criteria for eligibility for SDA and provides as follows:
11 Eligibility to receive support for specialist disability accommodation.
A participant is eligible to receive support for specialist disability accommodation under the National Disability Insurance Scheme if the CEO is satisfied that:
(a) the participant:
(i) has an extreme functional impairment (see section 12); or
(ii) has very high support needs (see section 13); and
(b) the participant meets the SDA needs requirement (see section 14).
76. Therefore, to meet the ‘eligibility requirements’ for SDA, the Tribunal must be satisfied that CBYW has either an ‘extreme functional impairment’[24] or a ‘very high support needs’’[25] and, also that CBYW meets the ‘SDA needs requirement’.[26]
[24] Rule 12, SDA Rules.
[25] Rule 13, SDA Rules.
[26] Rule 14, SDA Rules.
Rule 12 SDA Rules: Does CBYW have an extreme functional impairment?
77. The Agency concedes that CBYW has an extreme functional impairment’[27] for the purpose of Rule 12 of the SDA Rules.
[27] Rule 12, SDA Rules, SFIC at 21.
78. Rule 12 of the SDA rules prescribes the criteria a participant must satisfy for the requirement of having an ‘extreme functional impairment’. It provides as follows:
(1) A participant has an extreme functional impairment if:
(a) the impairment results in extremely reduced functional capacity to
undertake, or psychosocial functioning in undertaking, one or more of the
following activities:
(i) mobility;
(ii) self-care;
(iii) self-management; and
(b) the participant has a very high need for person-to-person supports in
undertaking the activity even with assistive technology, equipment or home
modifications.
(2) For the purposes of assessing whether a participant has an extreme functional
impairment, the CEO may have regard to:
(a) any assessment or examination conducted in relation to the participant,
including any assessment or examination requested by the CEO under
paragraph 36(2)(b) or 50(2)(b) of the Act; and
(b) the daily support requirements of the participant; and
(c) any assessment tool specified by the CEO for the purposes of this
paragraph; and
(d) any other matters that the CEO considers appropriate.
79. I am satisfied that CBYW has an extremely reduced functional capacity to undertake mobility. My considerations include the following:
· The NDIS specialist disability accommodation guidelines (‘SDA operational guidelines’) describe mobility as as ‘walking, climbing stairs, getting in and out of a bed or a chair, carrying or moving items, and getting out of the house’.
· Mr Morris’ report contained the most recent assessment of CBYW’s mobility. His report and his oral evidence assisted the Tribunal with an understanding of CBYW’s mobility function.
· CBYW is unable to stand or weight bear. He cannot walk and is wheelchair bound;
· To mobilise out of his bed he must be placed in a hoist with the assistance of two people. In this regard a ceiling hoist and tracking system has been installed in his bedroom;
· When accessing his hoist his bed must firstly be moved out from the wall of his bedroom. One support person then controls the hoist and a second support person supports CBYW into either his wheelchair or commode chair;
· Full support to the same extent is required when CBYW is transferring back into his bed from his commode or wheelchair;
· CBYW can only mobilise using a powered wheelchair or a mobile commode;
· To leave his home he is transported in a motor vehicle which accommodates his wheelchair. He requires assistance getting into and out of the motor vehicle using a ramp;
· CBYW does not transfer into other chairs. Instead he uses his wheelchair for sitting in the lounge room or at the dining table;
· CBYW has extremely impaired upper limb function. He is unable to use his shoulders to lift his arms. His arms must be ‘positioned’ on a table so that he can use his hands to access items such as a spoon. He is unable to lift or carry items;
· CBYW does have some fine motor skills however they are very limited;
· Provided CBYW’s arms are positioned appropriately he is able to operate independently the joystick of his wheelchair;
· For obvious reasons he is unable to use stairs. He requires ramps to access different levels within a single floor level;
· CBYW must be transferred into a commode chair to access the toilet and the shower. He must be directly positioned over the toilet by a support person so that there is sufficient alignment of the commode with the toilet;
· CBYW is unable to re-position himself in his bed. He requires assistance 3–4 times each night for repositioning so that he does not develop pressure sores. He has trialed air mattresses however has found these uncomfortable, resulting in disturbed sleep.
80. I am also satisfied that CBYW has an extremely reduced functional capacity in relation to his self-care. My considerations include the following:
· The SDA operational guidelines describe self-care as ‘washing yourself, going to the toilet, getting dressed, eating, drinking, talking and taking medication’
· Mr Morris’s report and oral evidence assisted the Tribunal with an understanding of CBYW’s self-care function;
· CBYW requires full assistance with dressing, showering, positioning on the toilet using a commode chair and post-toilet hygiene;
· CBYW is able to hold and use a urinal bottle only provided he is ‘set up’ and positioned with a urinal bottle on his lap;
· CBYW requires two people to assist with dressing. He is dressed whilst lying on his bed. To undertake this task CBYW’s bed must be manually moved out from the bedroom wall each time to enable carers to access both sides of the bed;
· CBYW is also dependent on others for all grooming tasks including brushing his teeth, doing his hair, washing and drying his hands;
· CBYW is also reliant on others for meal preparation;
· CBYW cannot lift a plate or bowl. To eat he lowers his head to his plate. He can use a spoon, but does not have the physical strength to cut food;
· He is able to use a spoon and also a fork but only for soft foods;
· Due to muscle wastage and poor strength CBYW cannot lift his arms. He does not have the physical strength to lift a cup of water to his mouth to drink. He requires assistance with drinking which is provided by others holding a water bottle with a straw to his mouth;
· CBYW is dependent upon others for cleaning and his laundry;
· When at school a teacher aide assists CBYW with his personal cares.
81. I am also satisfied that CBYW has a very high need for person-to-person supports in undertaking the activities of self-care and mobility, even with assistive technology, equipment or home modifications. My considerations include the following:
· CBYW requires two people to assist him with transfers from his bed into his wheelchair despite the use of a mechanical hoist;
· CBYW requires two people to assist him with transfers to his bed into his commode chair despite the use of a mechanical hoist;
· CBYW requires one person to assist him with showering despite the use of a commode chair;
· CBYW requires two people to assist him with dressing;
· CBYW requires one person to assist him with grooming;
· CBYW requires one person to assist him positioning over the toilet and his post-toilet hygiene;
· CBYW requires others to prepare his meals, assist with his fluid intake and also cleaning and laundry.
Conclusion
82. Based on the evidence I am satisfied that CBYW has an extreme functional impairment under Rule 12 of the SDA rules. As such the Agency’s concession is reasonable and proper.
83. On the basis Rule 12 of the SDA Rules is satisfied it not necessary to consider Rule 13 of the SDA rules which I also note is also conceded by the Agency.
Section 14 SDA Rules: Does CBYW meet the SDA ‘needs requirement’?
84. Rule 14 of the SDA Rules prescribes the criteria for satisfaction that CBYW has a ‘needs requirement’ and provides as follows:
(1) A participant meets the SDA needs requirement if, when compared to other supports alone, combined specialist disability accommodation and other supports would:
(a) better assist the participant to pursue the goals, objectives and aspirations set out in the participant’s statement of goals and aspirations; and
(b) be more effective and beneficial, where possible, in:
(i) mitigating or alleviating the impact of the participant’s impairment upon the participant’s functional capacity; and
(ii) preventing the deterioration of the participant’s functional capacity; and
(iii) improving the participant’s functional capacity; and
(iv) maintaining or promoting the participant’s ability to build capacity, including in the medium or long term; and
(v) maintaining or promoting the participant’s opportunities to develop skills; and
(c) if the participant has very high supports needs—be more effective and beneficial, where possible, in:
(i) reducing the participant’s future needs for supports which might be required due to inappropriate accommodation; an
(ii) assisting the participant to pursue goals related to life opportunities and life transitions; and
(d) if the participant has an extreme functional impairment—be more effective in providing the participant with stability and continuity of support; and
(e) represent better value for money.
(2) For the purposes of paragraph (1)(e), regard must be had to the following matters if the participant has very high support needs:
(a) whether combined specialist disability accommodation support and other supports would be likely to substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(b) the cost of providing the participant with supports needed to live in accommodation other than specialist disability accommodation, taking into account:
(i) whether those supports may be shared with other participants; and
(ii) limitations of the participant’s informal support network.,
85. The SDA operational guidelines state as follows:
We need to confirm specialist disability accommodation combined with your other supports will lead to better outcomes. For example, we look at whether it will:
• improve, maintain or prevent your functional capacity from getting worse
• reduce your future support needs
• create better connections with your family, community, health services, education, and employment’. (Tribunal emphasis)
86. Consideration of whether CBYW has an SDA ‘needs requirement’ requires firstly the identification of his ‘other supports’. Following identification of CBYW’s ‘other supports’ the Tribunal must compare the benefits of SDA when combined with these ‘other supports’ (option one), against the benefits provided by ‘other supports’ in isolation (option two).
87. This comparison specifically requires consideration of which of these two options would:
better assist CBYW to pursue the goals, objectives and aspirations set out in his plan;
be more effective and beneficial, where possible, in:
omitigating or alleviating the impact of CBYW’s impairment upon the participant’s functional capacity; and
opreventing the deterioration of CBYW’s functional capacity; and
oimproving CBYW’s functional capacity; and
omaintaining or promoting CBYW’s ability to build capacity, including in the medium or long term; and
omaintaining or promoting the participant’s opportunities to develop skills; and
be more effective in providing CBYW with stability and continuity of support; and
represent better value for money.
CBYW’s ‘other supports’
88. ‘Supports’ are not defined in the NDIS Act. In McGarrigle Mortimer J considered that the term ‘supports’ referred to both services and activities that assist a participant in the scheme in accordance with the principles to be applied under the NDIS Act.[28] Her Honour stated:[29]
The word “support” must be given a broad construction in this context, and there is no need for the purposes of this proceeding to seek to give it any comprehensive meaning. Rather, the point to be made is that it is a practical description of the means by which a person with disability is assisted. It is not intended, in my opinion, to encompass funding, especially because what s 14 contemplates is that the Agency will “fund” a support. The Agency cannot “fund” funding.
[28] Sections 4(11) and 31, NDIS Act.
[29]McGarrigle at [88].
89. As a participant in the scheme CBYW is funded for ‘formal supports’. These supports are specified and contained within his SOPS.
90. ‘Supports’ may also include ‘informal supports’ that are not funded under the scheme. These may be supports or services provided by others, including family members or entities outside the scheme.
91. CBYW’s ‘other supports’ are therefore comprised of both formal and informal supports. Based on the evidence I am satisfied that CBYW’s ‘other supports’ are comprised of the following:
· Informal support from his parents and siblings. This support includes physical support with his mobility and his self-care. It also includes social support in the context of a family environment;
· Formal support funded under the scheme and provided by support workers funded under the scheme as referred to in paragraph [41];
· Funding for a Muscular dystrophy camp;
· Physiotherapy and occupational therapy;
· Physical support with self-care when attending school provided by teacher aides;
· Various equipment, assistive technology and building modifications which include:
·Electric Hi-Lo bed;
·Pressure reducing mattress;
·A powered wheelchair;
·Mobile commode chair;
·Wall mounted hoist;
·Mobile Hoist;
·A disability adapted motor vehicle;
·Grab rails;
·Urinal bottle;
·Standing frame;
·Rubber ramps at the front and back entries of the family home;
·An aluminum ramp between the hallway and the bathroom rails;
·Software to enable voice activation of his laptop;
·Automation to activate the door in his bedroom and the lights in his bedroom.[30]
Rule 14(1)(a) SDA Rules: Will the combination of SDA together with other supports better assist CBYW to pursue his goals, objectives and aspirations as compared to other supports alone?
[30] T4.
92. The goals included in CBYW’s plan are that he would like to:
· Build his skills and be able to use assisted technology so he can be more independent;
· Access his community and activities that he enjoys and be as mobile as possible;
· Participate in social and recreational activities with his peers;
· Access care, suitable centre-based respite, short term accommodation and suitable accommodation;
· Increase independence and self-care.[31]
[31] T19.
93. SDA in combination with the use of his powered wheelchair, will enable CBYW to independently and safely access:
· all areas within his home without experiencing significant restrictions, barriers or inadequate circulation space in his home environment;
· the external garden area of his home, to access fresh air and nature and enjoy the company of family and friends for socialisation;
· his bedroom whenever he wishes thereby:
·increasing his ability to achieve privacy[32]
[32] Section 4 (10) NDIS Act.
·providing him with choice and control of his whereabouts and his privacy at any given time;
·providing him with a space to socialise privately with his friends either face to face or online.
· the bedrooms of other members of his family for socialisation;
· the bathroom to undertake simple tasks such as checking his appearance in a mirror;
· the kitchen to participate in activities in and around the kitchen which include:
·supervision, instruction and oversight of cooking activities;
·direct observation of meal preparation:
·other low physical activities such as decoration of baked items such as cupcakes.
94. Without SDA and despite the provision of other supports CBYW will:
· Remain unable to access all areas inside the family home. This includes an inability to access the kitchen to socialise during the preparation of meals or participate in low physical activities associated with cooking;
· Have inadequate circulation space in all rooms and hallways. He will continue to struggle to maneuver his wheelchair and require multiple changes of direction, undertaken very slowly in these areas.
95. I am satisfied that it is only with a combination of SDA and ‘other supports’ that CBYW will be able to pursue his goals of being as mobile as possible, participating in social activities with peers and increasing his independence.
96. The criteria under Rule 14(1)(a) of the SDA Rules is satisfied.
Rule 14(1)(b) SDA Rules: Will the combination of SDA together with other supports be more effective and beneficial for CBYW?
97. I am satisfied that the combination of SDA and ‘other supports’ will be more effective and beneficial for CBYW on the basis that it will improve his lived experience. It will alleviate the impact of his impairment upon his functional capacity by promoting opportunities to develop skills which include social participation. It will reduce CBYW’s isolation as a result of physical barriers. The combination will provide CBYW with a greater level of independence insofar as he will have choice and control over his ability to access all parts of his home, both internal and external. The combination of SDA and ‘other supports’ will also address CBYW’s future support needs as he grows larger, and becomes more functionally impaired. The combination will also manage increases in the footprint of his assistive aids.
98. SDA when combined with the use of his powered wheelchair and assistance from family and support workers will provide CBYW with the opportunity to be in the kitchen and participate in cooking activities to the extent that he is able to. This includes researching recipes and thereafter instructing and supervising others to undertake the physical component of cooking.
99. SDA when combined with the use of his powered wheelchair will provide CBYW with the opportunity to:
· access his bedroom and all other areas of the home including external garden areas easily and independently and at times at which he chooses to do so;
· develop his socialisation skills and friendships with peers in a private space inside the home and the external areas of the home;
100.SDA when combined with the use of his powered wheelchair will mitigate against the risk of physical injury to CBYW’s upper and lower limbs as a result of limbs and extremities being ‘scrapped’ when coming into contact with door jambs and narrow hallways. These physical injuries compromise CBYW’s already limited functional capacity.
101.SDA when combined with support from his support workers and carers will ensure a safe environment for CBYW in relation to transfers in and out of his bed and showering. This combination will mitigate against the risk of physical injury to CBYW also during these tasks and prevent CBYW from experiencing harm arising from an unsafe support environment.[33]
[33] Section 3(ga) NDIS Act.
102.SDA will also improve the lived experience of his carers by providing a safe environment to assist CBYW with transfers and self-care including showering.
103.In the absence of SDA despite other supports CBYW will be restricted and confined to certain areas within the home. He will also continue to be at risk of physical injury with transfers.
104.I am therefore satisfied that the combination of SDA and CBYW’s ‘other supports’ will be more effective and beneficial for CBYW as compared to the provisions of other supports alone.
105.The criteria under Rule 14(1)(b) of the SDA Rules is satisfied.
Rule 14(1)(d) SDA Rules: Will the combination of SDA together with other supports be more effective in providing CBYW with stability and continuity of support?
106.I am satisfied that SDA in combination with his other supports will be more effective in providing CBYW with stability and continuity of supports.
107.With the provision of SDA, CBYW will have the security of long-term accommodation which:
· Provides a physical and structural environment tailored to meet CBYW’s current and future disability needs. This includes CBYW’s disability needs as a result of further deterioration in his mobility and also as he grows older and increases in size and weight;
· Will ensure that support workers have an appropriate and safe workplace environment to the extent that any physical risks of injury to them when assisting CBYW can been minimised to a high degree. Such an environment will be beneficial to the ability to source and retain support workers in the long term, thereby providing CBYW with stability and continuity of supports;
· Will also ensure that the risk of physical injury to CBYW’s parents is mitigated to a high degree. This will assist the longevity of the support that they provide CBYW;
· The stability and continuity of informal carer support and formal support worker support will be of long-term benefit to CBYW.
108.I am satisfied that the combination of SDA and CBYW’s other supports will be more effective in providing CBYW with stability and continuity of support as compared to the provisions of other supports alone.
109.The criteria under Rule 14(1)(d) of the SDA Rules is satisfied.
Rule 14(1)(e) SDA Rules: Does the combination of SDA together with other supports represent better value for money than other supports alone?
110.The Agency submits that the modifications proposed by Mr Morris, as alternatives, are all that is required in order to meet the needs requirements of CBYW ‘at this present point in time’.[34] I am not persuaded by the Agency’s submission.
[34]Oral submission.
111.Firstly, I do not accept that the test of whether SDA represents value for money insofar as being a reasonable and necessary support for CBYW is confined to CBYW’s disability needs at ‘this present time’.
112.Section 3 of the NDIS Act refers to the following as an Object of the Act:
(e ) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports;
113.Section 6 of the NDIS Act provides that as a general principle a guiding action under the Act is that:
People with disability and their families and carers should have certainty that people with disability over their lifetime.
114.In my view the NDIS Act clearly contemplates that a participant will receive the care and support they need, taking into consideration their future care and support needs over their lifetime. On this basis I consider that an assessment of value for money requires consideration of both CBYW current support needs and his likely future support needs which arise as a consequence of his disability.
115.I also am not persuaded that either of the proposed Morris modifications represent value for money, in that the costs of either of these modifications are reasonable, relative to the benefits they achieve as compared to the benefits achieved by SDA. My considerations are as follows.
116.Mr Morris concedes that both proposed building modifications are a ‘theoretical design’ that would need to be confirmed with structural engineers and builders. Further, he could not guarantee that any of the options proposed would be ‘viable’ in the absence of Council approval, which may include a successful development application.
117.I am satisfied that even if modification one was a ‘viable’ option[35] for CBYW the following would still remain as significant issues for CBYW:
[35]Upon satisfaction of the matters referred to in [121].
· The size of the lounge room. The current dimensions of the loungeroom are 4950x 4990mm. Modification one proposes an increase to the width of CBYW’s bedroom by 930mm from 2670mm to 3600mm. This modification results in a reduction by 930mm of an already modestly sized lounge room. This reduction would result in reduced circulation space in the lounge room for CBYW, with particular impact on CBYW’s ability to make a 90 degree turn into his bedroom when entering through the front door;
· Whilst modification one provides direct access from CBYW’s bedroom to the bathroom, water spillage in the hallway exists as a high certainty. This is due to the requirement for CBYW to be transferred on a mobile commode chair to his bedroom for dressing. This aspect represents an ongoing slip risk for carers, visitors and members of CBYW’s family.
118.Whilst modification one increases CBYW’s circulation space in his bedroom, he remains with significant confinement to specific other areas of the house. His access to the dining room using his powered wheelchair continues to be limited to sitting at the end of the dining table. He remains with no access to the kitchen. His access to the bedrooms of other family members continues to be extremely difficult requiring multiple changing in direction, undertaken very slowly, using his powered wheelchair.
119.I am also satisfied that even if modification two was a ‘viable’[36] option the following would remain as significant issues for CBYW:
[36] Upon satisfaction of the matters referred to in [121].
· The storage area for CBYW’s ‘back up equipment’ would cease to exist. These important items would have to be stored somewhere else in the home resulting in further compromise to CBYW’s already limited general circulation space;
· CBYW’s difficulties in accessing the hallway and the bedrooms of other family members would remain the same as referred to in [122];
· CBYW would continue with no access to the kitchen and access to the dining room limited to sitting at the end of the dining room table;
· The reality of the ability to install a ceiling hoist on a sloping ceiling of a low height is uncertain on the current evidence.
120.It is an understatement that CBYW’s living environment is small. He is confined to ‘parts’ of his home and would remain so even with either of the modifications proposed by Mr Morris.
121.I am satisfied the building modifications proposed by Mr Morris do not achieve the same outcome for CBYW at a substantially lower cost. In comparing these proposed modifications only SDA:
· will provide CBYW with an environment to live in where he can access important parts of his home which include the kitchen and dining room area. This aspect will provide CBYW with the opportunity to participate in social life with his family;[37]
[37] Section 4 (2) NDIS Act.
· will result in CBYW not effectively being confined to his bedroom, having a relatively small lounge room with poor circulation space or being limited to sitting at the end of a dining table;
· will enable CBYW to safely access all parts of his home, using his wheelchair. Importantly this will provide CBYW with the ability to exercise choice and control of where he goes in his home (including the external garden areas) at any given point in time. Incorporated in this aspect is the ability for CBYW to achieve privacy, either on his own or in the company of friends or members of his family.
122.CBYW is currently 15 years of age. He will continue to grow bigger and heavier until he achieves adulthood and this will occur within the next few years. It is reasonable that in the future he will require a larger wheelchair. CBYW’s larger body size and wheelchair will only compound the difficulties and challenges that will remain despite the Morris building modifications including accessing hallways and traversing up and down access ramps.
123.F’s submission that the proposed building modifications are a ‘patchwork’ measure is also persuasive. I am satisfied that F’s criticisms are made after careful consideration of the practical reality of the modifications proposed by Mr Morris. CBYW’s condition is progressive. As his physical function declines with the passage of time, his disability needs will increase. Most relevant is the deterioration of his fine motor skills. This deterioration will undoubtedly impact upon the precision with which he can operate the joystick of his wheelchair, especially if required to make multiple changes of direction to achieve a circulation. CBYW’s current accommodation provides significant challenges accessing hallways, these challenges remain despite the Morris proposed modifications and include little room for error with manoeuvring his wheelchair. SDA however will provide CBYW with wider hallways enabling CBYW access in the context of a decline in the precision with which he operates his wheelchair.
124.Funding for SDA will provide CBYW with the certainty of having accommodation that will:
· meet his current disability needs;
· meet his disability needs in the next few years as he grows larger and heavier;
· meet his disability needs as an adult; and
· recognise and allow for an almost certain increase in the size of the footprint of CBYW’s assistive aids as his disability increases.
125.I am not satisfied that the Morris building modifications provide any level of certainty that CBYW’s disability needs will be met with the passage of time. In forming this view I have taken into account CBYW’s physical development into an adult over the next few years, the deleterious nature of his degenerative condition and the current and future footprint of his assistive aids.
126.In summary I am satisfied that SDA represents ‘better’ value for money.
127.The criteria under Rule 14(1)(e) of the SDA Rules are satisfied.
SDA Rules: Conclusion
128.As a consequence of CBYW’s impairments, based on the evidence I am satisfied that CBYW meets the criteria under Rule 11 of the SDA Rules and is ‘eligible’ for SDA.
Section 34(1): NDIS Act
Subsection 34(1)(aa): Are the supports sought necessary to address the needs of CBYW arising from the impairment in relation to which he met the disability requirements?
129.CBYW was granted access to the scheme on the basis of meeting the disability requirements pursuant to subsection 24(1) of the NDIS Act.
130.Based on the evidence I am satisfied that CBYW meets the disability requirements on the basis of a physical impairment due to LGMD.
131.For the purposes of subsection 34(1)(aa) of the NDIS Act, I am satisfied that SDA is necessary to address CBYW’s needs that arise as a result of his physical impairment due to LGMD.
132.Subsection 34(1)(aa) of the NDIS Act is satisfied.
Subsection 34(1)(a) NDIS Act: Will SDA assist CBYW to pursue the goals, objectives and aspirations included in his participant’s statement of goals and aspirations?
133.The Agency does not raise any contention in respect of this criterion.[38]
[38] SFIC dated 28 February 2025 at para 37.
134.I refer to paragraphs [92]–[96] in relation to this criterion.
135.For the reasons provided I accept that SDA will assist CBYW in pursuing his goals, aspirations and objectives.
136.Subsection 34(1)(a) of the NDIS Act is satisfied.
Subsection 34(1)(b) NDIS Act: Will SDA assist CBYW to undertake activities so as to facilitate his social and economic participation?
137.The Agency does not raise any contention in respect of this criterion.[39]
[39]SFIC dated 28 February 2025 at para 37.
138.CBYW is currently a child. As such the facilitation of economic participation is not a relevant focus for this criterion.
139.CBYW enjoys food and researching recipes. He also enjoys watching food being prepared and conversation in respect of this activity. He is able to participate in limited physical tasks such as cake decorating. SDA will provide CBYW with an opportunity to pursue this interest and enjoy the aspects of socialisation around this task.
140.I am also satisfied that SDA will assist CBYW to undertake other activities that facilitate his social participation. These activities include sufficient space in his bedroom to spend time with his friends with a level of privacy. Also the ability to access the garden as and when he chooses to and in the company of others.
141.Subsection 34(1)(b) of the NDIS Act is satisfied.
Subsection 34(1)(c) NDIS Act: Does SDA represent value for money?
142.The Agency contends that SDA does not represent value for money.[40]
[40]SFIC dated 28 February 2025 at para 37.
143.I refer to paragraphs [110]–[127] in relation to this criterion.
144.I am satisfied that CBYW’s current disability needs will vary significantly and increase as he grows larger and heavier in the next few years. These disability needs, which may likely include a larger wheelchair must be considered as a relevant factor. CBYW’s fine motor skills will also decline over time due to the progressive nature of his condition. This means that his ability to navigate narrow hallways using multiple changes of direction, undertaken very slowly will be adversely impacted upon.
145.I do not consider that either of the modifications proposed by Mr Morris will withstand CBYW’s disability needs throughout the passage of time. To fund modifications which offer no certainty of meeting CBYW’s future disability needs, particularly in the near future would be unwise and not in the interests of the financial sustainability of the scheme.[41] The financial sustainability of the scheme requires as an important consideration the need to ensure that funding for participants with chronic and progressively degenerative conditions relates to their long-term disability needs as well as their current disability needs.
[41] Section 3(3)(b) NDIS Act.
146.I am also satisfied that SDA will increase CBYW’s independence in a way that the proposed building modifications will not.
147.Furthermore, there was no evidence before the Tribunal that persuaded me to form a view that there are realistic alternative or comparable supports that would provide the same outcome for CBYW as SDA would provide. I am therefore satisfied that the cost of the SDA represents value for money in that the costs of SDA are reasonable, relative to both the benefits achieved and the cost of alternative support.
148.Subsection 34(1)(c) of the NDIS Act is satisfied.
Subsection 34(1)(d): Will SDA be, or likely to be, effective and beneficial for CBYW?
149.The Agency does not raise any contention in respect of this criterion.[42]
[42] SFIC dated 28 February 2025 at para 37.
150.I refer to paragraphs [97]–[104] in relation to this criterion.
151.SDA is an appropriate and sensible response to CBYW’s severe disability which will only worsen.
152.I am satisfied that SDA will be, or is likely to be effective and beneficial for CBYW.
153.Subsection 34(1)(d) of the NDIS Act is satisfied.
Subsection 34(1)(e): Will the funding of SDA take account of what it is reasonable to expect families, carers, informal networks and the community to provide?
154.The Agency does not raise any contention in respect of this criterion.[43]
[43] SFIC dated 28 February 2025 at para 37.
155.I am satisfied that CBYW’s informal supports include his parents and his siblings. The important and devoted support provided by CBYW’s family is commendable and acknowledged as being considerable to an extremely high degree. I am satisfied that this informal support already goes beyond what is reasonable to expect of one family to provide. SDA will take this factor into account and mitigate the significant risk of carer burnout.
156.Subsection 34(1)(e) of the NDIS Act is satisfied.
Subsection 34(1)(f): Is SDA an ‘NDIS Support’
157.Subsection 34(1)(f) of the NDIS Act, requires that a support funded under the scheme must be an ‘NDIS Support’.
158.Item 29 of Schedule 1 to the Transitional Rules provides that SDA is unless otherwise provided, an NDIS support. Item 29 refers to the following:
The provision of specialist disability accommodation which is accommodation for a participant who requires specialist housing solutions, including to assist with the delivery of supports that cater for the person’s extreme functional impairment or very high support needs
159.Subsection 34(1)(f) of the NDIS Act is satisfied.
What is the appropriate SDA for CBYW?
160.Having determined that CBYW is eligible for SDA and that it is a ‘reasonable and necessary support’ I am required to determine, as the next task, the SDA building type, SDA design category, and location of SDA. Rule 15(1) of the SDA Rules provides:
The CEO must determine the following matters for an eligible participant:
(a) the SDA building type that is appropriate to support the eligible participant (see section 16);
(b) the SDA design category that is appropriate to support the eligible participant (section 17);
(c) the area in which the specialist disability accommodation is to be located (see section 18);
(d) whether the specialist disability accommodation is to be provided as an in-kind support.
161.Schedule 1 to the SDA Rules sets out four SDA ‘building types’ and their features, being:
· Apartment [no number of residents specified];
· Villa, duplex and townhouse [specified as having ‘3 or less residents’];
· House [no number of residents specified]; and
· Group home [‘distinguished from other houses by having 4 or 5 long-term residents’]
162.Schedule 2 of the SDA Rules sets out the SDA ‘design categories’ being:
· Basic;
· Improved liveability;
· Fully accessible;
· Robust; and
· High physical support.
163.In the Agency’s Statement of Facts Issues and Contentions[44] the Agency states that on the basis of CBYW being eligible for SDA and satisfying section 34(1) of the NDIS Act the issue before the Tribunal is whether the following features of SDA are appropriate for CBYW:
[44] At paragraph 14.
· Building Type: Villa/duplex/townhouse, one resident, with onsite overnight assistance
· Design Category: High physical support
· Location: New South Wales – Central Coast.[45]
[45] SFIC para 14.
164.CBYW agrees with the Agency’s articulation of this issue[46] in respect of the appropriate SDA for CBYW under Rule 15 of the SDA Rules and thereby seeks SDA in the form specified in [10] .
[46] Applicant’s response to the Agency’s SFIC.
165.Neither the Agency or CBYW made any further submission at the hearing in respect of the ‘specific’ building type, design category or location of SDA that ought to be funded for CBYW under the Scheme having regard to Rule 15(1) of the SDA Rules.
166.I have therefore considered the evidence and had regard to the matters referred to in Rules 16, 17 and 18 of the SDA Rules.
167.The report of Mr Tim Biddle, of SDA Services dated 17 July 2022 makes the following recommendation for CBYW:
· SDA building type: Villa/Duplex/Townhouse, 1-Resident
· SDA design category: High Physical Support with OOA
· OOA required: Yes
· SDA location: Warnervale NSW - SA4 102 Wyong
168.The report of Ms Danielle Brown dated 10 June 2022 was provided following three assessments of CBYW in 2022.[47] Ms Brown recommends the following SDA:
[47] T4.
· Villa/Duplex/Townhouse – single occupancy
· High Physical Support;
· Warnervale NSW, 2259
169.The recommendation of SDA Services is endorsed by Mr Lachlan Deer, SDA Review Consultant. [48]
[48] T3.
170.CBYW seeks as a part of his goals, aspirations and objectives suitable accommodation.[49] The features of SDA accommodation will provide CBYW with suitable accommodation insofar as him having:
[49] Rule 16(a) SDA Rules.
· the ability to easily navigate hallways in his wheelchair;
· access to, including adequate circulation space, to areas of the home regularly used such as the kitchen, dining and living areas;
· access to a bedroom which has sufficient space so that his bed does not have to be moved out from the wall each time he is transferred into his wheelchair or onto his mobile commode;
· a safe environment for transfers and personal care tasks;
· level access to the outdoor areas including the garden.[50]
[50] Rule 16 SDA Rules.
171.CBYW also seeks as a part of his goals, aspirations and objectives to be able to participate in social and recreational activities with his peers. SDA will provide CBYW with a bedroom where he can spend time with friends with a level of privacy, including in person and online and on the telephone. He will also have level access to outdoor areas and gardens to spend time with family and friends.[51]
[51]Rule 16(f) SDA Rules.
172.CBYW will be able to independently enter and exit the front and rear entries without relying on others to open these doors;
173.CBYW will also be able to participate socially with cooking activities.[52]
[52] Rule 16(f) SDA Rules.
174.CBYW will have access to bathroom and toilet facilities that meet his mobility needs and ensure that any risks to carers who assist him with these activities are managed safely.[53]
[53] Rule 16(k) SDA Rules.
175.CBYW’s transfers in and out of his bed to his wheelchair and mobile commode will be able to be undertaken without having to move his bed out from the wall on each occasion. The carers performing this task will therefore be better supported with a reduction in associated risks to both CBYW and the carers.
176.CBYW will have accommodation that he will not ‘outgrow’. SDA will manage CBYW’s disability needs into the future as he grows larger and heavier and also as his physical function declines.[54]
[54] Rule 16 (e)SDA Rules.
177.SDA will enable him to remain residing with his family well into the future and in accordance with his family’s cultural norm. This security of his tenure into the future will be of long-term benefit to CBYW.[55]
[55] Rule 16 SDA Rules.
178.I have considered in particular the opinions of Mr Biddle, Ms Brown and Mr Deer. I have also considered the matters referred to in Rules 16, 17 and 18 of the SDA Rules. In doing so I am satisfied that SDA in a villa/duplex/townhouse with high physical support, including onsite overnight access in or about CBYW’s current geographical location is a reasonable and necessary support for CBYW.
DECISION
179.Pursuant to subsection 105(c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with a direction that within 28 days of this decision CBYW’s statement of participant supports specifies for Specialist Disability Accommodation as follows:
· Building Type: Villa/Duplex/Townhouse, one resident, with onsite overnight assistance
· Design Category: High physical support
· Location: New South Wales – Central Coast
| I certify that the preceding 179 (one hundred and seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins. |
...........[SGD]..........
Associate
1 May 2025
Dates of hearing: | 3 and 4 April 2025 |
Advocate for Applicant: | Ms Prakash |
| Solicitors for the Respondent: Counsel for the Respondent: | Mills Oakley Lawyers Ms Douglas-Baker of Counsel |
- AGLC
- CBYW and National Disability Insurance Agency (NDIS) [2025] ARTA 548
- Case
- [2025] ARTA 548
- Decision Date
CaseChat Overview and Summary
The legal issues before the Tribunal included whether the SDA was a reasonable and necessary support under section 34 of the NDIS Act, and if the Agency's decision to deny funding for the SDA was lawful, reasonable, and justifiable. The Tribunal had to consider the evidence presented by the applicant and the Agency to determine whether the Agency's decision was appropriate in the circumstances.
The Tribunal examined the evidence and found that there was insufficient information to make a definitive decision on whether the SDA was a reasonable and necessary support. The Tribunal noted that the Agency had not adequately considered the applicant's needs and the potential benefits of the SDA. The Tribunal also found that the Agency's decision-making process was flawed, as it did not properly consider all relevant factors and did not provide adequate reasons for its decision. As a result, the Tribunal remitted the decision back to the Agency for further consideration, with specific directions to ensure that all relevant factors are considered and that the decision-making process is transparent and justifiable.
The Tribunal's decision and statement of reasons were made on 21 June 2023, and the matter was remitted to the Agency for reconsideration in accordance with the Tribunal's directions. The Tribunal emphasised the importance of ensuring that the Agency's decision-making process is thorough, transparent, and justifiable, and that all relevant factors are properly considered when determining whether a support is reasonable and necessary under the NDIS Act.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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