Clough and National Disability Insurance Agency (NDIS) - [2025] ARTA 1920

Clough and National Disability Insurance Agency (NDIS) [2025] ARTA 1920 (29 September 2025)
Applicant:Mr Scott Clough
Respondent: National Disability Insurance Agency
Tribunal Number: 2024/2266
Tribunal:Administrative Review Tribunal
Place:Hobart
Date:29 September 2025

Decision:
The Tribunal sets aside the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth) as it relates to the supports specified in paragraph 255 of this decision.

..................[SGD]...........................
General Member A. Williams

NATIONAL DISABILITY INSURANCE SCHEME – review of statement of participant supports – request for) – reasonable and necessary supports – Applicant sought review of statement of supports to allow for funding multiple supports 150 hours of chest physiotherapy – hydrotherapy spa unit – continence consumables and other consumables – classification of supports – decision under review varied.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) (NDIS Supports) Act 2024
National Disability Insurance Scheme (Supports for Participants) Rules 2013
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024
Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Duse and National Disability Agency [2025] ARTA 37
FSWN and National Disability Insurance Agency [2025] ARTA 114
G v Minister for Home Affairs [2019] FCAFC 79 [18]
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Madelaine and National Disability Insurance Agency [2019] AATA 4025
National Disability Insurance Agency v Warwick [2025] FCAFC 100
National Disability Insurance Agency v WRMF (2020) FCR 415
Secondary Materials
National Disability Insurance Scheme Operational Guidelines
Statement of Reasons

This application is about whether the Applicant, Mr Scott Clough can have his request for funding of individual supports by the National Disability Insurance Agency (the Agency) approved as part of his funded supports. Mr Clough seeks review of a decision made on 2024 by a “reviewer” under sub-s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) (‘Decision Under Review’).[1] This decision confirmed an earlier decision by the Agency on 2023 not to approve such funding as part of his funded supports.
[1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘TD’).
The Administrative Review Tribunal’s (‘Tribunal’) jurisdiction arises under s 12 of the Administrative Review Tribunal Act 2004 (Cth) (‘ART Act’), operating in conjunction with

s 103 of the NDIS Act.
For the reasons set out below, the Decision under Review is varied as the Tribunal is satisfied that Mr Clough has established the requested supports meet the reasonable and necessary criteria under s 34(1) of the NDIS Act.
Background
Mr Scott Clough is a 46-year-old man who lives in a property with his sister Julienne in the south-east suburbs of Melbourne.
Mr Clough has the following diagnosed medical conditions:
·Cerebral Palsy
·Quadriplegia.
·Kyphoscoliosis (associated to his Cerebral Palsy),
·Emphysema
·Epilepsy
·Oropharyngeal dysfunction
·Recurrent cellulitis
·Chronic back pain
·Blindness
He is non-verbal but communicates very well through tapping his right hand and uses a detailed communication book. He lives in a rental house in Berwick, Melbourne, with his sister and is assisted by a team of support workers.
Mr Clough has previously been approved as a participant in the National Disability Insurance Scheme (NDIS).
In his application, Mr Clough requested the following additional supports be included in his plan:
·Funding included in your plan for 24/7 1:1 supports, at higher intensity pricing with an active overnight; with 10 of these hours at a 2:1 support.
·3:1 higher intensity support for 3.5 hours per week to attend hydrotherapy.
·Increased funding for short term accommodation (STA) 28 days per year included in his plan.
·Increased funding included in his plan for therapy supports.
The plan, the subject of this review, is a one-year plan commencing on 6 December 2023 and ending on 5 December 2024. It was not clear from the current material before the Tribunal if the current funding has been extended or a new plan has been put in place.
The NDIS supports funded in that plan were as follows:
Core Supports $361,645.97
·Flexible funding to assist with Daily Living:
Supports to enable maximum independence in personal activities of daily living, for example, support with self-care and to work towards achieving my goals. These can be provided in a range of supports environments, including but not limited to, my own home. This may include supports for carers respite.
Funding for assistive technology: $2100 to buy Low-Cost assistive technology and for repairs and maintenance of my shower commode, manual wheelchair and hoists, and $7,393.73 for my consumables.
$300,490.47 of funding in the Home and Living budget for Supported Independent Living estimated at a weekly amount of $5,778.66. I can choose the types of support that I utilise my Home and Living budget for. I am not required to specifically utilise this budget for Supported Independent Living and can use this budget flexibly for however best suits my needs. The Home and Living Budget has been calculated for Supported Independent Living with 2 other people. This will
help me build my skills to live as independently as possible. I have 14 hours of individual support hours each week for the first 12 weeks. I also have $11,390 for irregular SIL supports (Plan-managed).
Transport: $3,456.00
Capacity Building Supports $42,450.23
·Improved Daily Living: $30,95025 (Plan-managed).
$30,950.25 Funding of support to build my skills so I can achieve all of my plan goals. This may include but is not limited to individual therapy, group therapy, individual/group counselling, therapy assistant, training for parents/carers and individual assessment. Assessments and reports tracking my progress must be submitted to the NDIS 6 weeks before my plan review.
$3879.80 Funding for a Speech Pathologist to assess my swallowing capacity to remain safe at all mealtimes and reduce the risk of choking and/or aspiration.
$1382.52 Funding for Delivery of Health Supports by a Registered Nurse.
$5819.70 Funding for an Occupational Therapist to provide strategies and recommendations to increase my skills and independence in self-management and activities of daily living.
$5819.70 Funding for a Physiotherapist for ongoing sessions and an assessment to improve my coordination, mobility, strength, flexibility and assist to manage my health and wellbeing.
$788.05 Funding for a Clinical nurse consultant (continence nurse) to do an assessment to establish my needs. This includes preparing continence plans, identifying continence
consumable/Assistive Technology (AT) support needs and continence plan reviews.
$3582.24 Funding for training For Carers/Parents.
$9678.24 Funding for Delivery of Health Supports by an Enrolled Nurse.
Support Coordination (Level 2): $10,014.00
100 hours of Support Coordination to support me to connect to, engage with and coordinate my chosen service providers.
Capital Supports: $15,000
Assistive Technology
Funding of $4584 is for repair(s) and maintenance of manual wheelchair. For repairs over $1,500 you need to submit a quote to the NDIA.
Funding provisioned for Postural Support-seating system custom made with price range from $3250 to $10,620. You must contact your AT advisor to help you choose and set up
the right AT for you. Your Plan Manager provider can claim the funds for your AT support using their provider portal without further NDIA approval
Home Modifications
Specialist Disability Accommodation (SDA) up to $48,325 per year (Quote Required). I am eligible for SDA as follows:
the design category is High Physical Support., building type is House, 3 residents., location is Latrobe- Gippsland. I can access alternative SDA categories and locations within my
assessed amount.
During the progress of Mr Clough’s application through the Tribunal, several variations were made to the additional supports Mr Clough was seeking from the Agency. In this regard I have noted that:
·The parties agreed that an increase to the Participant’s Core, Daily Activities budget for an additional 2 hours of 2:1 support worker assistance, funded at the high intensity rate, is reasonable and necessary.
·Some other requested supports were subsequently withdrawn.
Decision under review and application for review to this tribunal
The Respondent provided an approved statement of supports for Mr Clough on 6 December 2023.
Soon afterwards, Mr Clough’s sister requested that the Agency conduct an internal review of the initial decision. She asked that the Agency consider adding the following additional supports:
·Funding included in your plan for 24/7 1:1 supports, at higher intensity pricing with an active overnight; with 10 of these hours at a 2:1 support.
·3:1 higher intensity support for 3.5 hours per week to attend hydrotherapy.
·Increased funding for short term accommodation (STA) 28 days per year included in his plan.
·Increased funding included in his plan for therapy supports.
The Agency conducted its internal review and on 12 March 2024 advised that it had partially approved one of the requested supports and not approved another three requested supports.
The reviewer advised that they would partly approve SIL support with higher intensity pricing, 2 hours of 2:1 and 4 hours of 1:1, but not approve the requested 24/7 1:1 supports, at higher intensity pricing with an active overnight; with 10 of these hours at a 2:1 support ratio.
The basis for the review decision was as follows:
Funding included in your plan for 24/7 1:1 supports, at higher intensity pricing with an active overnight; with 10 of these hours at a 2:1 support ratio
·Support is not related to the participant’s disability - NDIS (Supports for Participants) Rule 5.1(b):
·Support duplicates other supports - NDIS (Supports for Participants) Rule 5.1(c):
·Will not increase social and economic participation - NDIS Act Section 34(1)(b).
·Does not represent value for money - NDIS Act Section 34(1)(c).
·Effective and beneficial - NDIS Act Section 34(1)(d).
·Not responsibility of NDIS to fund (section 34(1)(f)).
Increased funding for short term accommodation (STA) 28 days per year
·Requested supports duplicates other existing supports - NDIS (Supports for Participants) Rule 5.1(c).
·Does not represent value for money - NDIS Act Section 34(1)(c).
Increased funding included in your plan for therapy supports
·Does not represent value for money - NDIS Act Section 34(1)(c).
·Effective and beneficial - NDIS Act Section 34(1)(d).
·Not responsibility of NDIS to fund - NDIS Act Section 34(1)(f).
On 4 April 2024 Ms Belinda Kochanowska, a Solicitor with Intrepidus Law on Mr Clough’s behalf applied to the then Administrative Appeals Tribunal (AAT) for the AAT to conduct an independent review of the reviewable decision.
In the application for review, Ms Kochanowska noted the following as reasons why she considered the reviewable decision was wrong:
The Applicant has extremely complex care needs and requires a significantly higher level of funding than that approved by the decision maker. The decision is wrong, and a different decision should be made taking account the evidence provided.
Evidence and Submissions
As part of the review process, the Tribunal was provided by the Respondent with those documents previously submitted as part of the original application process (the T Documents). Of potential relevance to this decision are the following reports and other documents:
·AAT Application for Review of Decision dated 04.04.2024
·Internal Review Decision (Participant Copy) dated 12.03.2024 4
·Letter, Julienne Verhagen (Sister) Undated
·Internal Review Decision (Respondent Copy) dated 12.03.2024
·Tax invoice for Wound Care, Independence Australia dated 20.04.2021
·Letter, Mihiri Karuanayakage (Doctor) 12.07.2022 41
·PODD Book 12.07.2022 42
·Mealtime Management Plan, Skye Tokhi (Speech Pathologist) dated20.02.2023
·Mealtime Management Checklist dated 06.04.2023
·Report of Sarah Mackay (Physiotherapist) dated 07.06.2023
·Report, Judy Barker (Occupational Therapist) dated13.06.2023
·Change in Situation Form dated 09.07.2023
·Report, Stephen De Graaf (Director of Pain Services) dated24.07.2023
·Active Overnight Shifts 29.07.2023
·Parker Ryan Spa Quote 17.08.2023
·Alpinespas Quote 22.08.2023
·Ideas for Scott’s BMs, Cora Popa (Counsellor) 05.11.2023
·Home and Living Decision Letter 30.11.2023
·Letter from Judy Barker (Occupational Therapist) 12.12.2023 165
·Request for a Review of a Decision Form 12.12.2023
·Report of Georgia Caldwell (Physiotherapist) 13.12.2023 Hoist Competency Checklist 06.01.2024
·Report of Julia Dukhno (Speech Pathologist) 30.01.2024
·Report of Alexander Lake (Psychologist) 31.01.2024
·Mealtime Management Plan, Julia Dukhno (Speech Pathologist) dated 09.02.2024
·Report of Julia Dukhno (Speech Pathologist) dated09.02.2024
·Letter from Nay Lwin (Doctor) dated 14.02.2024
·Anxiety Feelings Plan Undated
·Current Funding Request Undated
·Epilepsy Management Plan, Young Lee (Neurologist) Undated
·Home Exercise Program, Neurological Rehabilitation Group Undated
·List of Systematic Abuse with Scope Undated.
·Report of Jordan Hume (Registered Nurse) Undated
·Report of Monika Konski (Lifeful Plan) Undated
·Sleep, How to Position Plan Undated
·Daily Nighttime Activities Various
·Letters from Young Lee (Neurologist) Various
·Medication and Meals Routine Various
·Monthly Report Various
·Overnight Data Medication Tally Sheet Various
·Shift Notes Various.
·Summary of Active Overnight Care, July 2022 – December 2023 Various
·Vocal Registry Various.
The following additional evidence in support of Mr Clough’s application was submitted to the Tribunal:
·Report of Dr Thilini Basnayake (Sleep and Respiratory Physician dated 21 May 2024.
·Report of Dr Yong Lee (Neurologist) dated 20 May 2024.
·Updated statement of requested supports (undated).
·Letter dated 8 August from Katie Davies (Physiotherapist) with accompanying CV and other documents.
·Quotation dated 2 September 2024 from SCW constructions re construction of spa and deck.
·Updated statement of requested supports (undated) submitted 11 September 2024.
·Report of Mr Nick McPhee Physiotherapist (undated).
·Breakdown of Mr Clough’s current NDIS supports.
·Quote dated 9 November 2024 from Flash Property Improv.
·Breakdown of requested consumables dated 12 November 2024
·Continence Assessment report of Susan Doumbos (Nurse Continence Specialist) dated 1 February 2025.
·Quote from MedicalStore.com.au dated 4 February 2025 - supplies for consumables.
Statements of Position
During the conduct of the Tribunal’s pre-hearing procedure, both parties filed with the Tribunal Statements of Issues (SOI) and Statements of Facts, Issues and Contentions (SFIC).
The purpose of both an SOI and a SFIC is to provide an outline of that party’s case, what they consider to be the relevant facts, what may be the relevant parts of the Act and related Rules the Tribunal should consider and to identify where the parties disagree on these points.
These are updated on a regular basis to take into account new evidence and other material provided by the parties.
The most recent or relevant of these documents will be referred to throughout this decision.
Mr Clough’s SFIC
The Applicant’s SFIC was filed with the Tribunal on 20 August 2025.
The SFIC confirmed that the following additional supports are being sought by Mr Clough:
a. 150 hours of chest physiotherapy
b. Capital funding for a hydrotherapy unit and installation
c. 2-year NDIS plan
d. Consumable products; and
e. Funding arrangements of the Applicant’s plan.
Paragraphs 11 to 25 of the SFIC addresses the various medical and other supports which Mr Clough asserts justify the additional supports.
Applicant’s Contentions
Paragraphs 29 to 44 outline the basis why each requested support should be approved by the Tribunal.
150 hours of chest physiotherapy
Mr Clough, responding to the Agency’s assertion that the requested chest physiotherapy is a treatment of a health condition, submitted that is a disability specific support in respect of his disability, impairments and circumstances. It is therefore a reasonable and necessary support.
Capital funding for a hydrotherapy unit
The Applicant referred to item 1 (d) in schedule 2 of the Transitional Rules which specifies that certain items such as pools, pool heating and maintenance, spa baths, saunas, and steam rooms are not NDIS supports.
The Applicant contends that the requested hydrotherapy pool is not a day-to-day living cost rather it is related to his impairments.
It submits that determining the characteristic of the requested support is essential in order to determine whether the support is addressed via the Transitional Rules.
It further contends that the hydrotherapy unit cannot be construed to be a spa bath. This is because the purpose of a spa bath is relaxation while the purpose of the requested hydrotherapy unit is a disability specific therapeutic support.
It further submitted that the hydrotherapy unit is intended to provide a specific intervention for the purpose of alleviating Mr Clough’s impairments by way of a home-based activity by providing a direct therapeutic support.
The Applicant contends that the context of the words, read with the purpose of the statute, lends itself to a construction that necessarily implies an intention to address the very specific type of support itemised via the Transitional Rules noting that the provision of hydrotherapy was specifically preserved as a NDIS support in the Transitional Rules.
The provision of a capital support to provide hydrotherapy was not intended to be excluded by the Transitional Rules. It is therefore a reasonable and necessary support.
Two-year NDIS Plan
The Applicant submits, pursuant to the amendments to s33 of the NDIS Act that a 2-year plan is appropriate in the circumstance. This will provide certainty for Mr Clough in respect of his support needs.
Consumables
The Applicant relies upon the opinion of Ms Doumbos, Nurse Continence Specialist, in respect of the supports recommended and required. It is a reasonable and necessary support.
Categorisation of funding for support workers
The SFIC noted that in April 2025, the Respondent reallocated the Applicant’s Core funding into the category of Home & Living (H&L) without notifying the Applicant. No communication nor consent was given for this change. The purpose of H&L is to fund Supported Independent Living (SIL), and Mr Clough does not use a SIL model for his supports.
Given that a review of the Applicant’s plan is currently before the Tribunal, this type of funding reallocation should not have taken place.

The Applicant contends that the funding allocation be reverted, with the funds moved back into the Core categories of Daily Activities and Community Participation, where it was originally allocated.
The Agency’s SFIC
The Agency’s SFIC is dated 29 August 2025 and outlined its assessment of the various supports Mr Clough was seeking.
It identified the issues before the Tribunal as the following:
·150 hours chest physiotherapy.
·Hydrotherapy spa for the applicant’s home.
·Continence products and other consumables.
·Categorisation of home-based supports (funding be restored into ‘core‘ funding budget.
150 hours of chest therapy
The Agency addressing this issue made the following observations and contentions:
·to the extent that the requested support is a clinical support, intended to address a chronic health condition, it is an excluded support under the Transitional Rules such that the Tribunal cannot be satisfied with respect to sec 34(1)(f); and
·further and alternatively, the support is not value for money because it could be delivered by support workers, as was the case when the Applicant’s prior treating physiotherapist developed the “airway clearance program” for them to deliver.
Not a NDIS support if for a clinical purpose (sec 34(1)(f))
·The Agency submitted that the requested support falls within item 12 of Schedule 2 of the Transitional Rules which includes: ‘the diagnosis, early intervention and clinical treatment of health and mental health conditions, including ongoing or chronic health conditions.’
·Referring to the reports of Dr Basnayake and Mr McFee, chest physiotherapy is an early intervention for a chronic health condition would comprise treatment.
·In the current plan, commencing from 28 April 2025, the Agency increased the
physiotherapy funding from 30 hours to 68 hours annually, to enable therapy,
assessment and staff training. In its submission the additional 38 hours could be used as follows:
a. 6 hours for neurological physiotherapy reassessment and report writing;
b. 6 hours for respiratory physiotherapy reassessment and report writing;
c. 12 hours for monthly respiratory physiotherapy review;
d. 8 hours for training staff for both neurological and physiotherapy programs
(allowing for potential turnover of staff and retraining required); and
e. 6 hours for use flexibly between physiotherapists for intervention and liaison.
·Support in this form would enable review of the suitability of physiotherapy programs, training for delivery of neurological and respiratory programs, ongoing monitoring of functional capacity (particularly respiratory) and monitoring of the efficacy of programs over time. This would be a support to maintain functional capacity rather than deliver an early intervention for a clinical purpose.
Not value for money (sec 34(1)(c))
·The Agency submitted that:
a) according to the material before the Tribunal, the requested support can in fact be delivered by a trained support worker rather than a physiotherapist; and
b) delivery of the support by the Applicant’s support workers would be at a substantially lower cost, making the requested support not value for money.
·It submitted that the reports from Mr McFee and Ms McKay supported that position.
·In conclusion, the Agency submitted that the support could be delivered, as it has been in the past, primarily by support workers at a significantly lower cost, given that the Applicant is already funded for 10 hours daily for support workers at a ratio of 2:1 (assuming it would still be necessary for two people to deliver the support). On this basis the cost of the requested support is not reasonable relative to the benefits achieved and the cost of alternative support.
Hydrotherapy unit
The Agency noted that based upon quotes provided in 2023 the combined cost of purchase and installation of the hydrotherapy spa is $19,157. A more recent quote put this total cost as being $28,743.
It submitted that the Tribunal could not be satisfied that:
·it is a NDIS support for the purposes of sec 34(1)(f); or
·that it would be effective and beneficial, having regard to current good practice (sec 34(1)(d)).
Support is not a NDIS support (sec 34(1)(f))
In this regard the Agency submitted that the requested support falls within item 1 of Schedule 2 of the Transitional Rules as a day-to-day living cost.
The proposed use of the spa is not relevant to whether it is not a NDIS support.
The Agency further submitted that the requested support cannot fall within item 22 of Schedule 1 as spas and hydrotherapy pool are expressly excluded from what may constitute a ‘home modification.’
Support not effective and beneficial (sec 34(1)(d))
The Agency as a further limb, stated that if the Tribunal were to conclude that the requested hydrotherapy pool is a NDIS support, the Applicant had not established that it would be effective and beneficial
It submitted that there were several unanswered questions as to the likely benefits arising from the spa’s use as well as further costs that may be incurred when Mr Clough has to relocate from his current private rental property.
Support potentially harmful (sec 34(1)(d) and rule 5.1(a))
The Agency submitted that under rule 5.1(a) a support will not be provided or funded under the NDIS if it is likely to cause harm to the participant or pose a risk to others.
The Agency submitted that such a risk exists for Mr Clough in that:
·Mr Clough has swallowing difficulties which require careful management at meals. He is at risk of aspirating food or liquid; and he has aspirated during or in the aftermath of epileptic seizures, resulting in multiple hospitalisations.
·It is recognised that there is a risk of the Applicant being splashed with water in a spa bath and swallowing it. There appears also a risk of an epileptic fit whilst in the spa bath, given that these occur monthly. Either occurrence could result in him aspirating water.
·Ms Mackay recommended medical clearance of hydrotherapy because of the risk of aspiration pneumonia, but there is no documentary evidence of such clearance. The epilepsy management plan seems to identify bathing or swimming as a risk but does not provide any management strategy to reduce the risk.
Consumables
The Agency noted that the request for $18,889.21 worth of consumables, consists of:
·items listed in a Medicalstore quote dated 4 February 2025, in the amount of $13,223.21.
·$3,490 for 3,490 masks (document lodged 12 November 2024); and
·$2,076 for skin creams and topical remedies in the document lodged 12 November 2024.
The Agency also understands from page 4 of the Applicant’s SFIC, that Mr Clough seeks additional consumables recommended by Nurse Continence Specialist, Ms Susan Doumbos, specifically:
·3-virus RAT tests daily for each carer.
·N95 Masks for Carers.
·Hand Sanitiser.
·Foaming Hand Wash and,
Disposable paper towels.The Agency considers that the quote of Medicalstore, in the amount of $13,223.21 and $300 for skin creams and topical remedies is reasonable and necessary (totalling $13,533.21 of additional funding).
It considered that the requested face masks, Rapid Antigen Tests, hand sanitiser, foaming hand wash and disposable paper towels are not NDIS supports in that they are diagnostic supports (item 12(a) of Schedule 2 of the Transitional Rules) or groceries including all food, beverage, cleaning, household and health products” (item 3(a) of Schedule 2 of the Transitional Rules).
It further submitted that in any event, the statement from Mr Clough’s sister lacks sufficient detail as to satisfy the Tribunal of the quantum of supports sought and could be more appropriately be characterised as personal protective equipment for the Applicant’s support workers.
Two-year plan
The Agency submitted that due to the Applicant’s stable support needs and mandatory funding periods required for some supports in the Applicant’s plan, the Respondent considers that a two-year plan duration is preferred.
It appears from the SFIC, and later confirmed by the Agency’s Counsel that the Agency was no longer disputing this aspect of Mr Clough’s claim.
Categorisation of funding for support workers
Regarding this aspect of Mr Clough’s appeal, the Agency in its SFIC stated at paragraphs 73 and 74:
·The Applicant has home and living supports in the amount of $1,117,913.42. It is one of several components within “Core supports”.
·The supports are stated in this budget to ensure the Applicant uses these supports for that purpose (being assistance with ADL in a SIL arrangement) and not utilised on other supports that do not fall within this purpose of the budget.
Agency’s evidence
The Agency provided a report prepared by Dr Simone Baker (Clinical Psychologist) acting as an Independent Medical Expert dated 14 March 2025.
Dr Baker’s report is quite lengthy, so I do not propose to provide a summary here. Much of her findings may be addressed if required when I consider the evidence before the Tribunal.
LEGISLATIVE FRAMEWORK
The NDIS has been in operation for over ten years. It was at the time of its passage into law a landmark social legislation dedicated to the idea that people with disability have the right to realise their potential for physical, social, emotional and intellectual development.[2] This is one of a series of general principles guiding actions set out in section 4 of the Act. Other important principles in section 4 of particular relevance to the present case include:
[2] National Disability Insurance Scheme Act 2013 (Cth), subsection 4(1).
(2) People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability…
(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports (…)
(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports…
(11) Reasonable and necessary supports for people with disability should:
(a)support people with disability to pursue their goals and maximise their independence; and
(b)support people with disability to live independently and to be included in the community as fully participating citizens; and
(c)develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
The NDIS is administered by the Agency established under the Act. The Act sets out the matters that must be included in a participant’s plan. Subsection 33(2) provides:
A participant's plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a)the general supports (if any) that will be provided to, or in relation to, the participant; and
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c)the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d)the management of the funding for supports under the plan (see also Division 3); and
(e)the management of other aspects of the plan.
Subsection 33(5) provides:
In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a)have regard to the participant’s statement of goals and aspirations; and
(b)have regard to relevant assessments conducted in relation to the participant; and
(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d)apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f)have regard to the operation and effectiveness of any previous plans of the participant; and
(g)have regard to whether section 46 (acquittal of NDIS amounts) was complied with in relation to any previous plan for the participant.
Section 34 (as recently amended) provides:
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).
The term “support” is not given a meaning in the NDIS Act. A “support” is defined in section 9 of the NDIS Act as including “general supports”, being those defined in subsection 13(2) as the kind of supports provided by the Agency itself. However, the term “support” and the phrase “reasonable and necessary” are not further defined in the NDIS Act. In McGarrigle v National Disability Insurance Agency [2017] FCA 308 at 91 (McGarrigle), Mortimer J observed, with respect to those words.
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (“the Rules”) made pursuant to subsection 35(1) of the NDIS Act provides further guidance with respect to the assessment of reasonable and necessary supports that will be funded. Pursuant to section 209 of the NDIS Act, the Rules are a legislative instrument and are therefore binding to the Tribunal. In this case the relevant Rules include:
Value for money
- 3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost.
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant.
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d) for supports that involve the provision of equipment or modifications:
iii.the comparative cost of purchasing or leasing the equipment or modifications; and
iv.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
Part 5 of the Supports Rules sets out the general criteria for supports and supports that will not be funded or provided:
General criteria for supports.
5.1 A support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
(b)it is not related to the participant’s disability; or
(c)it duplicates other supports delivered under alternative funding through the NDIS; or
(d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a)additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b)costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
Supports that will not be funded or provided.
5.1 The following supports will not be provided or funded under the NDIS:
(a)a support the provision of which would be contrary to:
(i). a law of the Commonwealth; or
(ii). a law of the State or Territory in which the support would be provided.
(b)a support that consists of income replacement.
Recent amendments to the Act
As of 3 October 2024, the Act was amended under the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act (Amending Act).
Under the Amending Act, new Rules were also put into effect. Of particular relevance to this matter, is the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (the Transitional Rules).

It is important to note that both the Amending Act and the Transitional Rules came into effect immediately and apply as of 3 October 2024.
The Amending Act and the Transitional Rules are designed to provide greater clarity as to what types of requested supports will receive funding approval under the Act and those supports that generally will not be approved.
As a result of the Amending Act, the definition of what constitutes a NDIS support in section 10 has changed with the new section reading as follows:
Definition of NDIS support
(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.
Supports 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).
Rule 5 of the Transitional Rules is as follows:
What supports are NDIS supports—general rule.
Supports that are NDIS supports unless otherwise provided:
1For the purposes of subsection 10(1) of the NDIS Act, a support covered by column 2 of an item in the table in clause 1 of Schedule 1 to this instrument is an NDIS support (subject to subsections 10(4) and (9) of the NDIS Act and subsection (2) of this section) for:
(a)participants specified in column 3 of the item who have old framework plans; and
(b)prospective participants specified in column 3 of the item, other than prospective participants who, if they were participants, would be required to be given notice under subsection 32B(2) of the NDIS Act (participants that are to have new framework plans).
Note 1: Subsection 10(4) of the NDIS Act allows supports to be declared to not be NDIS supports for participants or prospective participants. Those supports are declared under subsection (2) of this section.
Note 2: Subsection 10(9) of the NDIS Act provides that 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,
(d)a State or a Territory.
Supports that generally are not NDIS supports:
2For the purposes of subsection 10(4) of the NDIS Act, a support covered by column 2 of an item in the table in clause 1 of Schedule 2 to this instrument is not an NDIS support for any participant (subject to subsection 10(6) of the NDIS Act) or prospective participant.
Note 1: Subsection 10(6) of the NDIS Act allows the CEO, on application by a participant, to determine that a support is taken to not be declared under subsection 10(4) of that Act in relation to the participant if, among other things, the CEO is satisfied that the support would replace one or more other supports that are NDIS supports for the participant.
Note 2: Determinations under subsection 10(6) of the NDIS Act are referred to in this instrument as replacement support determinations. For additional rules about replacement support determinations, see section 7 of this instrument.
This rule gives effect to section 10(4) of the Act which states that the Support Rules may declare that a support is not a NDIS support for a participant or a prospective participant.
Schedule 2 of the Rules contains a categorised list of requested supports that are declared not to be NDIS supports. Once again, the relevant items that may apply to Mr Howson’s application will be identified when I consider her requests later in this decision.
Schedule 2—Supports that generally are not NDIS supports:
Note: See subsection 5(2)
1 Supports that generally are not NDIS supports.
The following table sets out supports that are not NDIS supports for:
(a) a participant (unless a replacement support determination covering the support is in force for the participant); or
(b) a prospective participant.
Supports that generally are not NDIS supports.
Column 1 Column 2
Item Category Supports
.
Also, of importance to an assessment of this matter are both section 10(6) of the Act and Rule 7 of the Transitional Rules.
Section 10(6) is as follows:
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:
(e)the support would replace one or more other supports that are NDIS supports for the participant; and
(f)the cost of the support is the same or lower than the total of the costs of the supports it would replace; and
(g)the support would provide the same or a better outcome for the participant than the supports it would replace; and
(h)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 bot
Rule 7 of the Transitional Rules is as follows:
Replacement support determinations
Supports for which determinations may be made:
1For the purposes of paragraph 10(6)(a) of the NDIS Act, the CEO may make a replacement support determination in relation to a support covered by column 1 of an item in the table in subsection (3) of this section.
2For the purposes of subparagraph 10(6)(d)(iv) of the NDIS Act, the CEO must be satisfied that the conditions set out in column 2 of an item in the table in subsection (3) are met before making a replacement support determination in relation to a support covered by column 1 of the item.
3The table is as follows:
Replacement support determinations
Column 1 Column 2
Item Supports Conditions
1Standard commercially available household items
The support must:
(a)The funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and community to be necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements; and
(b)increase whole task independence; and
(c)reduce or eliminate the need for a support worker or disability specific assistive technology.
What these two provisions specify is that a participant may apply to have a support that would otherwise be considered not to be an NDIS support considered as a replacement support determination, subject to it meeting the requirements specified in Rule 7(3).
I shall return to the relevance of the Transitional Rules to this case when I consider whether the requested additional support can be found to be reasonable and necessary under the Act.
The NDIS Act and its Rules are supplemented by operational guidelines. The operational guidelines represent government policy and, to the extent that they are consistent with the relevant legislation, should be applied by the tribunal unless there is a sound reason not to do so.[3]
[3] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; Madelaine and National Disability Insurance Agency [2019] AATA 4025.
The National Disability Insurance Scheme Operational Guidelines – Planning provides:
This Operational Guideline provides an overview of the National Disability Insurance Scheme (NDIS), including the legal and policy framework it operates within and the variety of different ways it provides support and assistance to people with disability.
In addition, this Operational Guideline outlines the objects and general principles of the National Disability Insurance Scheme Act 2013 and provides a summary of the information which is available in the remainder of the NDIS' Operational Guidelines.[4]
[4] National Disability Insurance Agency, ‘Operational Guidelines: Overview of the NDIS Operational Guideline’ <>
There is no power conferred by the NDIS Act to make Operational Guidelines, and they are issued in an exercise of executive power.[5] 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)[6], 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, however they should not be bound by it. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection,[7] where Mortimer J (as her Honour then was) held:
‘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…’
[5] G v Minister for Home Affairs [2019] FCAFC 79 [18].
[6] [1979] 24 ALR 577 [590].
[7] [2018] FCA 1229.
Therefore, unless the Access Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether Mr Clough meets the reasonable and necessary criteria.
Summary of the Changes to the Legislation
I appreciate that much of what is recorded above is highly complex and difficult to comprehend. To summarise the effect of these changes I note the following:
The new legislation applies to both existing participants in the Scheme and prospective Applicants.
The new law came into effect on 3 October and applies to all existing requests for support including those such as Mr Clough, that are currently before the Tribunal.
Section 10(1) of the Act now allows the NDIS to classify a support in the NDIS rules as a NDIS support which can be approved if it meets the other reasonable and necessary criteria in s 34(1).
Conversely s 10(4) now allows the NDIS to classify a support as ‘not a NDIS support’ in the rules.
Rule 5(2) gives effect to s 10(4) by stating that if a requested support is listed in schedule 2 of those rules, then it is ‘not a NDIS support.’
Section 34(1)(f) now requires that for a requested support to be considered to be reasonable and necessary that support must be a NDIS support as well as meet the other reasonable and necessary criteria specified in ss34(1) (aa) to (e).
If a decision maker, such as myself, finds that a requested support falls within any of the 24 categories itemised in schedule 2 of the rules, then it cannot be found to be reasonable and necessary even if I were to find that all the other criteria have been met.
I note that in many cases, items that are listed in schedule 2 of the rules as ‘not NDIS supports’ are identified under quite broad categories rather than as an itemised list of Mr Clough’s request for funding could potentially fall within.
My task in this decision will be to determine if Mr Clough’s request for the additional supports meets the reasonable and necessary criteria generally and whether any of them fall within one or more of those broad ‘not NDIS’ categories.
To find that Mr Clough’s requested support is reasonable and necessary, I will need to find that his various requested supports meet all (emphasis added) of those 7 criteria as well as those specified in Rules 3 to 5.
Evidence at hearing
The hearing of Mr Clough’s application took place over two days on 2 and 3 September 2025.
Mr Clough was represented by Mr Christopher Bilboe of Intrepidus Law, and the Agency was represented by Ms Sarah Varney of Counsel and instructed by Mr Karl Rieschieck of Mills Oakley Lawyers.
The Joint Tender Bundle of agreed documentary evidence was received by the Tribunal on 2 September 2025 and formally entered as evidence as Exhibit 1.
The Respondent’s SFIC which had been lodged with the Tribunal after the joint tender bundle, was recorded as Exhibit 2.
During the conduct of the hearing the following other documents were formally entered as evidence, namely.
·Prescription and invoice for medical oxygen recorded as Exhibit 3.
·NDIA internal technical advice recorded as Exhibit 4 (but relied upon).
Mr Clough’s sister, Ms Julienne Verhagen, Mr Nick McPhee (chest physiotherapist) and Mr Pablo Medina Mena (neurological physiotherapist) all gave evidence on the first day of the hearing. Day two of the hearing was taken up with both parties’ representatives making oral submissions.
Preliminary matters
Before the hearing of evidence, some preliminary matters needed to be resolved.
Consumables
There was a preliminary discussion concerning the list of consumables being sought by the Applicant and itemised in paragraph 21 of the Applicant’s SFIC.
Those items were the following:
a. Fisiocream ($42.00 per tube – every 2 months = $252 p/a),
b. Voltarin ($34.99 per tube, every 3 weeks = $606 p/a)
c. Deep Heat ($12.99 per tube every month = $155 p/a),
d. Aloe Medicated Cream ($30 per tube every 2 months = $180 p/a),
e. Aloe Massage Lotion ($32 per tube every 3 months = $128 p/a),
f. “Ease” Magnesium topical muscle spray ($39 per bottle x 2 = $78 p/a)
g. Sudo cream ($35 large tub every 3 months = $140 p/a),
h. Sorbolene cream ($12.99 per tub each month = $155 p/a)
i. Vicks – Vapo Rub ($14.69 per 100g tub – two each month = $380 p/a)
j. …(no item listed)
k. Air purifier refill filters $ 140
l. Monthly rental of his oxygen concentrator $1,260
m. N95 masks for all support workers, every shift $2,200
n. RAT tests (weekly for all support workers $3,120 OR 3-virus RAT tests
(weekly)$8,580
o. Sanitiser, foaming hand wash & paper towel $ 895
p. Creams for Scott’s achy muscles, lung conditions & skin $2,074
After a brief adjournment to allow Ms Varney to seek instructions, she advised that:
·The Agency was still disputing items (a) through (f) and items (i), (k) and (l); and
·Items (m) through (p) would not be pressed.
Oral Evidence
Ms Julienne Verhagen’s evidence
Responding to questions from Mr Bilboe, Ms Verhagen gave the following evidence:
·She has lived with Scott in several private rental properties for some years now.
·She has been appointed his guardian by the Victorian Civil and Administrative Tribunal (VCAT) and their mother, Sandra is his appointed financial manager.
·In February 2021 Scott had a seizure and required a lengthy period in hospital and the family were not certain he would survive however he was eventually discharged nearly two months later.
·He has required multiple hospital admissions since that time. He is now engaged in an intensive health program whose goal is to minimise him ending up in hospital. He has not required an admission now for some six and a half months.
·His treating team including his GP, respiratory specialist and neurologist have all recommended he has regular chest physiotherapy.
·Mr McPhee comes twice a week to perform the chest physiotherapy and each session usually lasts 40 minutes. She will stay with him while the chest physiotherapy is performed.
·Ms Verhagen said that Scott has used the same physiotherapy company for a long time and Mr McPhee has been attending him for nine months and Mr Medina Mena for some six months,
·He has other aspects to his exercise program which his support workers are trained in however only Mr McPhee performs the chest physiotherapy. Ms Verhagen said she and Scott’s support workers would not feel comfortable in performing the chest physio due to Scott’s fragility and brittle bones.
·She considers that the Chest physiotherapy benefits Scott, as he will usually be able to cough up more afterwards.
·He has a double curvature of the spine and a hump. This compresses his lower organs and reduced lung capacity as a result.
·In addition, he has seizures which can be quite severe. He has recently been prescribed a new medication for this and while he may have more frequent seizures, they will generally be less severe.
·He also has dysphasia causing difficulty with chewing and swallowing. He can generally eat and drink well and is hand fed pureed food.
·Mr Bilboe asked Ms Verhagen some questions about the various creams the family were seeking for Scott. She said they were effective in relaxing his muscles and relieving severe pain.
·He experiences extreme pain two to three days a week and can then experience a full tonic-clonic seizure.
·Ms Verhagen was referred to the air purifier item (k) in the list of consumables (see paragraph 119 above). In response she said that after covid began to ease, Scott’s therapists required an air purifier to be in the house. She said that after he experiences a seizure his medications can lower his rate of respiration, and he will use oxygen while he recovers from the seizure. They have been meeting the cost of the oxygen themselves.
·Ms Verhagen said that the house they live in needs to be regularly deep cleaned due to Scott’s allergies and further risk to his respiratory system.
·Turning to the request for the hydrotherapy spa, Ms Verhagen said that previously Scott had attended a public hydrotherapy pool however that came with great risk as it required three support staff to assist him into and out of the pool
·Asked about the proposed ‘Nepal’ hydrotherapy unit she said that this was entirely portable and would sit on a metal stand and they could use the portable hoist and sling in their home. It could be used regularly, and he has always enjoyed having hydrotherapy in the past. It would also give Scott a sense of control over his treatment.
·Asked by Mr Bilboe what the benefits of regular hydrotherapy, Ms Verhagen said that it would provide him with a safe form of exercise and mobilisation of his joints and muscles and would provide him with better circulation, respiratory function, improved mental health, greater muscle strength and manage his osteoporosis.
·Asked about the potential risks, Mr Verhagen said he would have two very trained support workers when accessing the pool, he would be in a sling with his head out of the water and they would ensure he did not ingest any of the water.

Ms Verhagen provided the following evidence in response to questions from Ms Varney:
·Ms Varney referred Ms Verhagen to the report of Ms Sara McKay, a previous physiotherapist who treated Scott. Ms Varney referred to an exercise plan prepared by Ms McKay. Ms Verhagen said that what Ms McKay had prepared there was very different to chest physiotherapy. They were continuing to use the exercise plan.
·Ms Varney noted that Mr McPhee had indicated that he believed Scott’s support workers could be trained in chest physiotherapy. Ms Verhagen again indicated that she was very nervous about others providing this therapy and even then, anyone potentially providing the therapy would need to be adequately trained. The support workers had also expressed their reticence to do this.
·Ms Verhagen said that she was not closed to the idea of others providing the therapy but would defer to Mr McPhee’s professional opinion.
·She also provided some information concerning the steps she and the other carers would take after Scott had experienced a seizure. She confirmed that Scott has not required a hospital admission for some time and when asked attributed this to the recent change in his regular medications and the regular chest therapy.
·Ms Varney asked her about Scott’s past use of hydrotherapy. She said that he used to go weekly for about 18 years. One of their previous properties had a very deep bath in which they used a bubble mat.
·She again confirmed that they stopped going to the public hydrotherapy pool due to his high need for supports and the risks he faced.
·Asked if anyone had evaluated the hydrotherapy program, Ms Verhaegen indicated she was not aware of any but believed that the therapists would have advised the Agency when they prepared review reports for the Agency.
·She said that the Nepal spa would keep the water in it heated with hot bubbly water.
·Since he ceased attending the public hydrotherapy centre, she believes this had affected his recovery times.
Mr McPhee’s evidence
After providing a summary of his qualifications and experience, providing an outline of his methodology of conducting the assessment, and confirming that his report was correct, Mr McPhee answered a series of questions from Mr Bilboe and Ms Varney.
·He described chest physio as a separate branch of physiotherapy primarily focused on a person’s chest area. It does not require additional qualifications.
·He is currently providing therapy twice a week. It was previously once weekly.
·The therapy itself consists of separate components including postural drainage, airway clearance, percussions, deep breathing exercises and what he termed ‘coughing and huffing”.
·He will adjust his therapy on how Scott presents on any given day.
·The overall purpose of chest therapy is to prevent Scott having to go to hospital.
·He confirmed that he is recommending that Scott receives chest therapy 4 days per week. Ideally, he considers Scott would be best served by daily chest therapy.
·Asked if Scott’s sister could provide the chest therapy, he said that potentially she could, however it would be at a different level to what he can provide
·He gave a similar response when asked if a support worker could provide the therapy. Overall, he believed others could be trained in some aspects of the therapy.
·Asked how he would measure the effectiveness of his therapy, he said this would largely be measured by a reduction in hospitalisations that are related to his respiratory function.
·Other benefits would be keeping him at home and helping Scott to achieve his NDIS goals.
·He provided Ms Varney with a summary of how long would be spent on each element of the chest therapy.
·He said he would adjust what he did depending on how Scott presented on any given day. For example, he won’t have Scott shift position if he is not having a good day.
·The postural draining will have him carefully place Scott on his side and then have him in a more upright position to do the deep breathing exercises. He would perform the chest therapy with Scott on his mechanical bed and use the bed’s mechanics to change his position.
·Mr McPhee said that he understood the same therapy and techniques had been used by other physiotherapists when he was in hospital.
·He said that the percussive technique is a quite physical intervention and is not so commonly used these days. It usually commences with Scott lying on his back and then being repositioned to access different parts of his chest area. This part of the therapy will require someone, usually Ms Verhagen to assist in holding and repositioning Scott.
·The purpose of the percussion and vibration is to improve his airway clearance loosening sputum secretions in his lungs and making it easier for him to cough those secretions up later. When successful this would generally be after the therapy has been completed. He is kept updated about Scott’s ability to cough by Ms Verhagen and his support workers. A productive cough or series of coughs would produce about a mouthful of sputum. It is not precisely measured.
·Mr McPhee responded to a series of questions from Ms Varney concerning the academic articles he provided with his report.
·He agreed with the proposition that chest therapy using a delegated model could be appropriate so long as sufficient training provided to those who may assist
·He considered that Scott would require more frequent chest therapy when he was unwell to prevent sputum build up in his lungs. If he was not accessing chest therapy, he would take longer to recover from a chest infection and possibly require more time in hospital.
·Asked whether it would be possible to allow the support works perform chest therapy twice a week and Mr McPhee performing the other days, Mr McPhee said that while certain aspects such as postural techniques and deep breathing could be conducted by support workers under proper training and monitoring, the percussive and vibration techniques would not be readily provided by others due to the risks involved.
·He said he was aware of the home exercise program for Scott and has seen some of the other material provided by other physiotherapists.
Mr Medina Mena’s evidence
After providing a summary of his qualifications and experience, providing an outline of his methodology of conducting the assessment, and confirming that his report was correct, Mr Medina Mena answered a series of questions from Mr Bilboe and Ms Varney.
·He initially saw Mr Clough on a monthly basis and is seeing him every three months now.
·He assists with his mobilisation including upper and lower limbs and fingers. He will usually do this with the assistance of a support worker.
·He considers that monthly sessions would better assist Scott.
·The goals of his therapy would be to create joint integrity muscle strength and minimise functional decline.
·Responding to questions concerning the role of hydrotherapy he said that would help improve Scott’s capacity for motion, joint mobility, reduce pain, general relaxation, minimise contraction of muscles and assist with his respiratory conditions.
·To assist his respiratory condition his chest would need to be immersed to work the respiratory muscles more and develop deeper breathing.
·He agreed that hydrotherapy could improve Mr Clough’s quality of life particularly through pain management.
·He confirmed that he has not seen the hydrotherapy unit Mr Clough is requesting, however has seen photos of the unit. He said that an occupational therapist would need to provide the training of support workers in its proper use. He said such training would take between three to four weeks and could be combined with Mr Medina Mena providing the first weeks of hydrotherapy.
·The hydrotherapy techniques used would depend on the size and depth of the hydrotherapy unit. He confirmed that if Mr Clough accessed hydrotherapy in the community, he would need 3 support workers to safely perform this.
·Responding to questions from Ms Varney, Mr Medina Mena again confirmed that having his respiratory muscles engaged would depend upon the depth of the unit and its volume of water. He said that he was not aware of the depth of water in the proposed hydrotherapy unit.
·Mr Clough would need to be lowered into the unit using a hoist and sling and would need to be lying down with his head supported.
·As the benefits of hydrotherapy depend on the water temperature, it would need to maintain a certain temperature. He said this would be 34.2 degrees Celsius. He could not say how long Mr Clough would need to be in the spa, Mr Medina Mena indicated he was not sure.
·Asked by Ms Varney how he could measure any benefits of hydrotherapy, he said this would include his pain levels, muscle strength and flexibility his joints would be more relaxed and either coughing less or coughing more effectively.
·He agreed with Ms Varney that most likely Mr Clough would not experience the benefits for the whole day afterwards.
·Asked if there were any potential risks associated with hydrotherapy with the spa being situated outside. Mr Medina Mena said it would depend on the weather and risk of infection and having the unit indoors may be safer.
Oral submissions
At the conclusion of the hearing both parties’ representatives made oral submissions.
These submissions addressed all the issues for determination by the Tribunal.
However, I also note that both parties subsequently provided written submissions addressing the following topics:
·The consumables.
·the Applicant’s reliance on Warwick v National Disability Insurance Agency [2024] FCA 616 as it may relate to item 1, Schedule 2, of the Transitional Rules (regarding day to day living costs – accommodation and household.
·the impact of SIL supports (the bulk of the participant’s funding) being stated supports.
I have provided a summary of the parties’ written submissions later in this decision.
I will therefore provide a summary of the parties’ oral submissions as they relate to the requested chest therapy, certain aspects of the consumables and the broader contentions concerning the requested hydrotherapy spa unit.
Applicant’s submissions
Mr Bilboe made the following submissions:
Chest Therapy
In relation to the requested 150 hours of chest therapy, Mr Bilboe made the following observations on the evidence and submissions as that request related to the relevant legislation:
·Mr Clough’s treating doctor had recommended that Mr Clough receive this therapy four times each week.
·Mr McPhee, the physiotherapist who provided this therapy recommends that such therapy be provided daily but accepts the treating doctor’s recommended four times per week.
·In his evidence, Mr McPhee describes how he provides this therapy, and the various steps involved.
·The therapy is designed to address Mr Clough’s various impairments including his cerebral palsy, being wheelchair bound, his extreme scoliosis and his asthma and other respiratory conditions.
·The purpose of the therapy is to address these impairments, clear his chest and assist him to breath effectively and to reduce his need for acute hospital admissions.
·In this regard the treatment has been effective and beneficial as the number of such hospital admissions has been reduced.
·It is cost effective as it allows him to remain at home and any deterioration in his condition would result in him requiring a higher level of supports in the long term.
·He noted that the Respondent’s Counsel has suggested that some or all of the chest therapy could be conducted by Mr Clough’s support workers, subject to them being appropriately trained.
·Mr McPhee’s evidence that certain aspects such as tapping, and vibrations should only be performed by a qualified physiotherapist. He acknowledged that postural drainage and the breathing support could with appropriate training be provided by others.
·However, if that was the case, he would still be required to attend four days each week to perform those aspects of the therapy that only he should perform.
·He also noted that the Respondent had suggested the treatment could be provided by the public health system, in his submission that is not appropriate as the therapy is a therapy designed to address his impairments and is quite specific to his quite unique set of impairments.
Consumables
In relation to the requested consumables, he stated:
·Each of the listed items is related to his physical impairments.
·The Fisiocrem, Voltaren, Deep Heat and other creams are designed to relax the muscles and reduce his pain.
·Mr Clough suffers from significant pain, is immobilised and subject to muscle cramps and spasms.
·The treatment is designed to address these symptoms.
·They also assist with his breathing.
·The oxygen has been prescribed by his GP to assist him breath and avoid any allergic reactions.
·In terms of how the support relates to the Transitional Rules, he submitted that consumables fall under item 16 (disability-related health supports) of Schedule 1. It is therefore a NDIS support.
·In terms of the other section 34(1) criteria, he submitted that the supports are disability related, they represent value for money, they enable him to undertake activities of daily living and meet his NDIS goals to live more independently.
Hydrotherapy Unit
In relation to the requested hydrotherapy unit, he stated:
·The provision of the unit was recommended by his Physiotherapist and Occupational Therapist.
·He is unable to access hydrotherapy in the community as it represents an unacceptable level of risk
·Even if that were not the case, as he would require three support works to assist him to access hydrotherapy outside of his home, which would not represent value for money.
·The unit they are requesting is the ‘Nepal’ which costs approximately $6,700. It would not require any modifications to his current property.
·In terms of the Transitional Rules, he submitted that it is not a day-to-day expense under Item 1(d) of Schedule 2 as argued by the Respondent.
·He submitted that I would need to look beyond the identification of the item, rather look at its intended use, which in Mr Clough’s case was solely therapeutic, not for relaxation and enjoyment.
·He submitted that Mr Mena had given evidence as to how the unit would be used.
·Hydrotherapy is specifically preserved as a NDIS support under the Transitional Rules and therefore this support which allows Mr Clough to access such therapy should not be excluded.
·Mr Bilboe conceded that while there had not been a trial of the Nepal unit, Mr Clough has benefitted from hydrotherapy in the past.
·He noted that the Respondent has asserted that under the Operational Guidelines for Home Modifications the hydrotherapy unit is not a home modification under item 22 of Schedule 1 however in response stated that Mr Clough’s property will not require modification in order for it to be installed therefore the Operational Guidelines do not apply.
·It was submitted that the hydrotherapy unit, properly considered, should be classified as a therapeutic support as permitted under Item 34 of schedule 1 and that would include both the therapy and the appliance that allows the therapy to be conducted.
·In terms of the section 34(1) criteria, the support is related to his impairments, will assist him to reach his NDIS goals and objectives and represents value for money compared to accessing public hydrotherapy requiring a 3:1 support.
·The benefits of the unit are manifest as it will improve his muscle flexibility and reduce pain.
·In terms of the Respondent’s ascertain as to the risk of harm., Mr Bilboe said this is not borne out by the evidence. Mr Clough will be lowered into the unit via a hoist and sling and will have his head supported so that it remained above the water.
·The Agency has not suggested any alternative supports, simply denying the requested support.
·Finally, Mr Bilboe submitted the Respondent should not refuse to fund a support which is recommended by a participant’s therapists.
Respondent’s oral submissions
Before commencing closing oral submissions Ms Varney sought leave to provide written submissions on the subject of the consumables and the classification of supports. I granted leave for this and made the following directions:
· The Respondent was to provide their written submissions by 12 September 2025.
· The Applicant was to provide their written submissions in reply by 17 September 2025.
Ms Varney then made the following oral submissions.
Chest Therapy
Relating to this requested support Ms Varney provided the following observations and submissions:
·Mr Clough already has 68 hours funding for physiotherapy in his current plan which comprise twice weekly chest physiotherapy and once quarterly for his neuro-physiotherapist.
·The Agency accepts that chest physiotherapy meets the criteria for sections 34(1)(a) and (b) in that it assists Mr Clough in his goals of greater mobility and independence and improved lung function assist with his goal of more social participation.
·She submitted that there was limited evidence as to whether it was effective and beneficial and represented good current practice. In this regard she referred to the three journal articles cited by Mr McPhee.
·None of the articles provided details of the elements of chest physiotherapy and there was little evidence to establish how frequently chest physiotherapy should be utilised. There was also limited evidence as to the benefits of the treatment and there was little evidence of Mr Clough’s baseline function prior to commencing the currently funded sessions.
·She further submitted that there was insufficient evidence to establish the need for 4 sessions each week.
·She referred to the possibility of support workers performing some of the components of the chest therapy particularly postural drainage and deep breathing.
·Mr McPhee’s evidence that he would not be comfortable with a support worker or Ms Verhagen performing the percussive and vibration techniques
·She submitted that it was open to the Tribunal to find that support workers could perform those two elements of the therapy, and it would be effective and beneficial.
·Ms Varney also submitted that the therapy is an NDIS support and was covered in item 16 of Schedule 1 (Disability-related health supports).
Hydrotherapy Unit
Ms Varney made the following observations/submissions on this requested support:
·The Tribunal should find that the requested spa is not a NDIS support and submitted that it came under Item 1(d) of Schedule 2 of the Transitional Rules.
·She noted that Mr Clough’s representative relied upon the Federal Court decision of Warwick (2025 FCA 100). (this argument was addressed more fully in Ms Varney’s written submissions).
·She submitted that it did not came within Item 34 of Schedule 1 as the spa unit itself was not a ‘therapy’ and the evidence from the Applicant’s therapists had not established that the spa itself was ‘therapeutic’.
·Mr Medina Mena told the Tribunal that he has not physically seen the unit and that he could devise a hydrotherapy plan once he had seen it and it was installed.
·Ms Varney therefore submitted that the conclusion that should be reached from Mr Medina Mena’s evidence is that the therapy is the actual hydrotherapy and not the unit it was to be provided in.
·Therefore, it was not a therapeutic support.
·She submitted that if the Tribunal was to find it was a NDIS support there was insufficient evidence of the benefit of a spa-based hydrotherapy program.
·Mr Medina Mena is yet to devise a therapy plan, and he does not know how it would compare with the previous public hydrotherapy treatment or how effective it may prove until he had a clearer idea of the volume of water it could hold.
·She also submitted that it did not represent value for money and the Applicant had not provided the full cost of its installation.
·She also noted that current planning rules in Victoria required a spa with a depth of 30 centimetres or more to be fenced and no evidence had been submitted from the Applicant about this point.
·In reference to the potential risks of the spa, Ms Varney acknowledged that some of those risks appear to have been anticipated but there remained the risk of aspiration caused by Mr Clough ingesting water inadvertently splashed on him and that caution dictated a therapist devising a plan to address this.
·Ms Varney also responded to certain aspects of Mr Bilboe’s submissions concerning the hydrotherapy spa.
·She disputed Mr Bilboe’s submission that it was not disputed that the provision of hydrotherapy would have similar benefits to that achieved through chest physiotherapy.
·She further disputed that there was no proposed alternative to hydrotherapy utilising the spa. She submitted there was an alternative, namely the home exercise program devised by Mr Medina Mena.
·She also disputed the proposition that Mr Clough is unable to access hydrotherapy in a public pool and the evidence did not establish that hydrotherapy could be adequately conducted in the proposed spa or the efficacy of hydrotherapy provided in that environment.
·Mr Medina Mena in his evidence said that he had never performed hydrotherapy in a spa unit.
Written submissions

In response the submissions on behalf of Mr Clough were as follows:
·Mr Clough’s treating doctor had recommended that Mr Clough receive this therapy four times each week.
·Mr McPhee, the physiotherapist who provided this therapy recommends that such therapy be provided daily but accepts the treating doctor’s recommended four times per week.
·In his evidence, Mr McPhee describes how he provides this therapy, and the various steps involved.
·The therapy is designed to address Mr Clough’s various impairments including his cerebral palsy, being wheelchair bound, his extreme scoliosis and his asthma and other respiratory conditions.
·The purpose of the therapy is to address these impairments, clear his chest and assist him to breath effectively and to reduce his need for acute hospital admissions.
·In this regard the treatment has been effective and beneficial as the number of such hospital admissions has been reduced.
·It is cost effective as it allows him to remain at home and any deterioration in his condition would result in him requiring a higher level of supports in the long term.
·He noted that the Respondent’s Counsel has suggested that some or all of the chest therapy could be conducted by Mr Clough’s support workers, subject to them being appropriately trained.
·Mr McPhee’s evidence that certain aspects such as tapping and vibrations should only be performed by a qualified physiotherapist. He acknowledged that postural drainage and the breathing support with appropriate training could be provided by others.
·However, if that was the case, he would still be required to attend four days each week to perform those aspects of the therapy that only he should perform.
·He also noted that the Respondent had suggested the treatment could be provided by the public health system. In his submission that is not appropriate as the therapy is a therapy designed to address his impairments and is quite specific to his quite unique set of impairments.
Addressing the contention that there was limited evidence as to the therapy’s benefit and effectiveness I disagree this is the case. Mr McPhee in both his reports and his oral evidence before the Tribunal provided details of both his practice and his observed benefits in terms of the amounts Mr Clough can cough up after each therapy session. It is also clear that since the therapy commenced, he has not required as many hospitalisations as previously and I also consider that having Mr Clough to remain in his own home is also beneficial.
I note that the various articles Mr Clough provided was the subject of some discussion before the Tribunal. From my perspective those articles did not greatly add to my understanding of the methodology of such therapy and how it might relate in practice to Mr Clough’s unique presentation.
In this regard I gave greater weight to Mr McPhee’s evidence, and I found his responses to be measured, honest and forthright.
Turning to the contention that the chest therapy could be conducted via a delegated care model whereby some or all the therapy could be provided by his support workers, I do not consider this is borne out by the evidence.
Ms Verhagen expressed strong reservations about either her or her brother’s support workers performing this therapy and in particular the more physical aspects such as the percussion and vibration components.
Mr McPhee also was clear that these two elements should only be performed by him.
I further note that in general terms there are several distinct elements to the therapy including postural drainage, airway clearance, percussions, deep breathing exercises and what he termed “huffing and puffing”.
Mr McPhee did indicate that potentially postural drainage and deep breathing exercises could be performed by others subject to them being properly trained.
However, as I understood the methodology, all the elements need to be undertaken to be effective and would require Mr McPhee to be present for most if not all of each scheduled therapy session. This would appear to negate any cost benefit from having the assistance of others.
While I consider that the possibility of properly trained others assisting in the provision of that therapy this will require some time for such training to take place. It is of course open to Mr McPhee to begin undertaking such training and then provide an update progress report to the Agency which could then be considered when assessing whether the same number of therapy hours are still required.
Overall taking account of both Dr Basnayake and Mr McPhee’s recommendations I accept the recommended frequency of such therapy is warranted.
I will therefore approve hours of chest therapy in line with those recommendations.
Consumables
As I noted in paragraph 219 above the Agency in paragraph 7 of its closing written submissions, stated:
The Respondent’s proposed funding for continence products in accordance with the invoice (total $13,223.21)5 is in substitution for that portion of the existing consumables funding used for continence products. Funding for wound and pressure care and nutrition products (including thickeners, for example) should continue in addition to the $13,223.21 for continence products and equipment.
Mr Clough’s representative in its closing submission in response stated:
The applicant agrees with the respondent’s position in paragraph 7 of the respondent’s submissions
The balance of the consumables remaining in dispute are:
·Item A: Fisiocream ($42.00 per tube)
·Item B: Voltaren ($34.99 per tube).
·Item C: Deep Heat ($12.99 per tube
·Item D: Aloe Medicated Cream ($30 per tube
·Item E: Aloe Massage Lotion ($32 per tube).
·Item F; “Ease” Magnesium topical muscle spray ($39 per bottle)
·Item I : Vicks VapoRub ($14.69 per 100g tub) –
·Item K: Air purifier refill filters
·Item L: Oxygen Concentrator
I propose to firstly address items ‘K’ and ‘L’ first, then Items A to F and finally Item ‘I’.
Oxygen concentrator and air purifier refill filters
Regarding Items K and L, the Respondent in its closing submissions wrote at paragraphs 14 and 15:
The Tribunal can conclude that the oxygen concentrator is a NDIS support within item 16, Disability-related health supports, in Schedule 1. This item includes “Health supports that relate to the functional impact of a participant’s disability. This includes the following: (a) supports, services and assistive products to manage dysphagia, diabetes, continence, would and pressure care, respiration, …” (emphasis added)
The Respondent is not clear whether the air purifier refill filters form part of the consumables of the oxygen concentrator. If so, it accepts that they come within item 16, Schedule 1
Mr Clough’s representative in paragraph 7 of its closing submission wrote:
The applicant submits that the air purifier refill filters forms part of consumables of NDIS support within item 16, Disability-related health supports, in Schedule 1 as the oxygen concentrator
Based upon the above, I consider that the air purifier refills form part of the consumables for the air purifier and therefore a NDIS support under item 16 of schedule 1 of the Transitional Rules.
I therefore approve this requested support.
Items A to F.
The Respondent’s position on these items as outlined in its closing written submission was:
·these remedies are not an NDIS support for the purposes of sec 34(1)(f). They fall into Schedule 2, item 3, Day-to-day living costs— food and groceries, “groceries including all food, beverage, cleaning, household and health products.
·The Applicant’s sister’s evidence was that the remedies are used to reduce muscle pain. There is, however, no recommendation for the muscle remedies from any doctor or allied health practitioner.
·The Tribunal ought to conclude that:
(a)the remedies are a “health product” within item 3 of Schedule 2, being a non-prescription product without a recommendation for its use; and the remedies are not an assistive product for self-care within item 9 of Schedule 1, “Assistive products for personal care and safety”. This item includes “(b) products to facilitate washing and drying the participant’s body, caring for the participant’s body and body parts”. It is submitted that a product to provide relief of pain in the muscles is not a product to facilitate caring for the body.
The Applicant’s position on these items as outlined in its closing written submission was:
·The Applicant disagrees with the Respondent’s submissions that a product to provide relief of pain in the muscles is not a product to facilitate caring for the body. The Applicant has numerous complex medical conditions, and Voltaren, Fisiocream, Deep Heat, etc are required to reduce his pain and care for his body.
·The Applicant’s sister’s evidence was that the remedies are used to reduce the applicant’s muscle pain.
I have considered whether the various items in items A to F fall within Item 3 (a) of Schedule 2 namely ‘groceries including all food, beverage, cleaning, household and health products.’
I take the Respondent’s submission to indicate that because these muscle remedies have not been recommended by a doctor or allied health professional, I should afford them little weight and, in any event, they all may be classified as ‘health products.’
I do not agree with that contention. Placing this additional requirement is to my mind unnecessary if there is a clear link between the purpose or intended use of the product and a participant’s disability and impairments.
The overall headings for Item 9 in Schedule 1 are:
Assistive products for personal care and safety
Provision of assistive products for self-care activities and participation in self-care
As I read item 9 of schedule 1, the products that may be considered to come within its ambit are broadly classified as:
·Products to facilitate washing and drying the participant’s body.
·Products caring for the participant’s body and body parts; and.
·Assistive products for dressing and protecting the participant’s body.
I do not consider that the products are to facilitate washing and drying a participant’s body.
I consider that the word ‘care’ could potentially cover a wide scope of activities and could include pain relief and relaxation of muscles.
Similarly, the words ‘body’ and ‘body parts’ to my mind should encompass a person’s entire body including external components and organs and internal components and organs.
Noting these observations, I consider that all the listed products are designed to potentially relax tissues such as muscles and address pain. This effect I consider is covered by the wording in Item 9 of Schedule 1.
I therefore find that the items listed as A to F are NDIS supports and they otherwise meet the reasonable and necessary criteria in section 34(1).
Item I - Vicks Vapo-Rub
Similarly to what the Agency submitted concerning items A to F, its objections to this requested support were the following:
·that the requested Vicks VapoRub comes within Item 3 of Schedule 2 and is therefore not a NDIS support. It has not been recommended by a clinician (i.e. doctor, nurse or allied health professional).
·that the Tribunal should classify the product as a “health product” within item 3 of Schedule 2, being a non-prescription product without a recommendation for its use.
·This item in Schedule 1 includes “(b) products to facilitate washing and drying the participant’s body, caring for the participant’s body and body parts”. It is submitted that a product to reduce nasal congestion is not a product to facilitate caring for the body.
I have already assessed these submissions as they relate to the other consumables in the immediately preceding section.
My view is that these observations equally apply to this requested support.
The key remedial feature of Vicks VapoRub is to clear the user’s breathing passages and make breathing easier. This is a primary aspect of Mr Clough’s impairments that also seek to be addressed by other therapies such as the chest physiotherapy and the hydrotherapy he has previously utilised.
It could equally be classified as ‘a product caring for the participant’s body and body parts’ or ‘an assistive product for dressing and protecting the participant’s body.’
I therefore will approve this requested support.
Hydrotherapy spa unit
I consider that of the various criteria in section 34 the parties continue to dispute, it is best to begin my assessment with whether the hydrotherapy spa unit is an NDIS support. This is because, if this equipment is not an NDIS support, I am not required to assess whether it meets any of the other contested criteria. I have previously noted in my summary of the recent amendments to the Act that all the individual criteria in section 34 must be established in order for a requested support to be found reasonable and necessary.
This approach was recommended by Senior Member French who in FSWN and National Disability Insurance Agency (FSWN)[8] provides a helpful two-stage approach to answering the question of whether a requested support is ‘an NDIS support’. I will refer to this below:
Stage 1 Ascertain if the requested support is an NDIS Support as defined. This inquiry is focused on the support, not the participant.
Step 1: Determine if the requested support is of a character that falls within the scope of a category of support specified in column 1 of the Table to Schedule 2 of the Transitional Rules by reference to the description of supports that fall within the scope of that category contained in column 2 of the Table.
If the answer to that question is “yes”, then stage 1 is complete. The requested support is not a NDIS Support and cannot be approved for inclusion in a SoPS because of s 34(1)(f) (subject to a replacement support determination being made, as to which see following).
If the answer to that question is “no”, then proceed to step 2 of stage 1:
Step 2: Determine if the requested support is of a character capable of falling within the scope of a category of support specified in column 1 of the Table to Schedule 1 of the Transitional Rules by reference to the description of supports that can fall within the scope of that category contained in column 2 of that Table.
If the answer to that question is “no”, then the requested support will not be a NDIS Support and cannot be approved for including in a SoPS because of s 34(1)(f).
If the answer to that question is “yes”, then the requested support will be a NDIS Support that is capable of being approved for inclusion in a SoPS by operation of s 34(1)(f), and stage 2 of the enquiry is reached.
Stage 2: Ascertain if the requested support satisfies each of the other criteria specified in s 34(1)(aa) to (e) and the associated Supports Rules. There is some overlap of the stage 1 and 2 enquiries. However, in my opinion stage 2 is primarily a participant focused enquiry. That is, it seeks to establish the benefit of the support to the participant. To the extent that stage 2 also requires examination of the efficacy of the support per se it adds nothing to the outcome of the stage 1 enquiry in my opinion.
The question of whether a requested support is, or is not, a NDIS support is a mixed question of fact and law. The issue of fact to be determined is whether the requested support falls within a category of items specified in column 1 of the Tables to Schedules 1 and 2 of the Transitional Rules. If it does, it will either be, or not be, a NDIS support by operation of law.[9]
[8] [2025] ARTA 114
[9] At
As can be seen from the above extract, when undertaking stage 1 of the inquiry the focus should be on the support, not the participant. In this case the requested support is essentially a spa even if it could be used as a hydrotherapy unit.
Senior Member French also noted that it is not sufficient to find after considering Schedule 2 that a requested support is not listed as ‘not an NDIS support’ without also determining that the requested support falls within one of the categories in Schedule 1 and there is an NDIS support.
As I also noted in my decision in Duse and NDIS[10] when a support (in that case, art supplies) is listed in schedule 2 it is irrelevant if it is related either directly or indirectly to a participant’s support needs[11].
Unlike Rule 5(1) in the Support for Participants Rules, there is no requirement in Rule 5(2)
of the Transitional Rules that links the requested support to a participant’s disability support
needs. In the case of the Rule 5(1), if there is such a link between a requested support and
a participant’s disability support needs, it is then possible to infer that it is therefore not a
day-to-day living cost.
Therefore, if a support is listed in schedule 2 as ‘not an NDIS support’, it is irrelevant that it is related either directly or indirectly to a participant’s support needs.
[10] [2025] ARTA 37
[11] [2025] ARTA 37
With regard to whether the hydrotherapy spa unit is listed in Schedule 2 is not an NDIS support, the parties have submitted the relevant item is Item 1 (d) of Schedule 2.
In broad terms what are covered by this item are day-to-day living costs – accommodation and household.
Item 1 (d) lists the following items:
Pools, pool heating and maintenance, spa baths, saunas, and steam rooms.
Mr Bilboe, in his oral submissions asserted that I should look beyond the identification of the item, and rather look at its intended use, which in Mr Clough’s case was solely therapeutic, and not for relaxation and enjoyment.
However, in line with SM French’s observations in FSWN and what I determined in Duse, my focus should be on the identification of the requested support and not its intended use.
Therefore, it is open to me to find at this point that as the requested hydrotherapy unit falling as it does within Item 1 (d) of Schedule 2 is not an NDIS support.
However, I consider the correct approach to use here for the sake of certainty is to move to stage 2 of the process outlined in FSWN and establish whether it may fall within any of the various categories of NDIS supports listed in Schedule 1.
The parties in their submissions have directed me to Item 34 of Schedule 1 as being one of the items in Schedule 1 that may apply to the requested spa unit. I will record the wording of this item in full:
Supports that provide evidence-based therapy to help participants improve or maintain their functional capacity in areas such as language and communication, personal care, mobility and movement, interpersonal interactions, functioning (including psychosocial functioning) and community living. This includes an assessment by allied health professionals for support planning and review as required
In addition to the parties’ submissions there appears to me to be a further Item in Schedule 1 that may be relevant here, namely item 18. Again, I have recorded this in full:
Supports that maintain or increase physical mobility or well-being through personal training or exercise physiology to address the functional impact of the participant’s disability.
This includes the following:
(a) accessing services from an appropriately qualified professional.
(b) assessment and development of a personalised exercise program which aims to increase or maintain a participant’s functional capacity.
(c)) maintenance of muscle strength, range of motion, balance, and mobility
I propose to address each item in turn.
Mr Bilboe, in his submission submitted that the hydrotherapy unit, properly considered, should be classified as a therapeutic support as permitted under Item 34 of schedule 1 and that would include both the therapy and the appliance that allows the therapy to be conducted.
In my decision of Roberts and NDIA[12] I considered in detail the scope of Item 34. My conclusion was that the wording of that item meant that it was limited to the delivery of therapy and could not extend to any equipment or assistive technology that may facilitate the provision of such therapy.
[12] 2025 ARTA 1362

Taking the same approach, I therefore consider that Item 34 in Schedule 1 in this case cannot be interpreted to include the equipment used to provide evidence-based therapy to help participants improve or maintain their functional capacity. It is restricted to the provision of the therapy by therapists skilled in the activities mentioned including areas such as language and communication, personal care, mobility and movement, interpersonal interactions, functioning (including psychosocial functioning) and community living.
Therefore, I cannot agree with Mr Bilboe’s argument that the requested spa unit falls with Item 34 of Schedule 1.
Turning to Item 18 of Schedule 1 this relates to supports that maintain or increase physical mobility or well-being through personal training or exercise physiology to address the functional impact of the participant’s disability.
While it is open to me to find that the provision of hydrotherapy could potentially fall within this item, I also consider that this item, like item 34 is restricted to the actual providing of the therapy.
This is because there are several individual items in Schedule 1 that specifically relate to assistive products (i.e. items 7, 8 and 9). However, my review of these items does not indicate that a hydrotherapy spa unit could logically be found to fall within them.
Ultimately, I have concluded that this requested support is not a NDIS support and therefore cannot be approved.
Classification of supports
I consider that the starting point of any analysis of this issue is how I should classify Mr Clough’s current model of support.
It is still not entirely clear to me why the Agency reclassified certain aspects of Mr Clough’s in-home supports as stated supports under the classification of ‘home and living’ funding.
It could be that this arose as the Agency was aware that Mr Clough was using his core budget on domestic supports such as cleaning and gardening, however that may be speculation on my part.
Mr Clough’s representative in his final written submissions stated that ‘home and living’ funding was restricted to supported independent living supports and that Mr Clough’s is not living under a SIL model of care. I largely consider that is the correct description of Mr Clough’s current funding model.
Whatever the correctness or otherwise of the respective parties’ positions, there is a clear need for this funding which I consider the Agency acknowledged in its offer of two hours per week of cleaning and one hour per month of gardening aid
Before addressing the quantum of such support, I consider any such funding by its nature must be capable of being used flexibly and as such, should be returned as core funding.
This is because Mr Clough’s needs are highly fluctuating due to his chronic respiratory conditions and the risk they pose to him. Ms Verhagen’s evidence, which I accept, is that the home needs to be kept scrupulously clean, and the garden closely watched for all allergens emanating from grass and plants.
She also observed that while she can attend to some cleaning tasks, there is a need for frequent deep cleaning in certain parts of the home to minimise these risks.
Because of this, the provision of such services should be provided by appropriately qualified specialist cleaners and gardeners and not left to his support workers. This must of course be reflected in the number of hours allocated for cleaning and gardening.
Based upon the evidence before me I consider the following is appropriate:
·Four hours of specialist cleaning per week.
·Four hours of gardening per month.
I therefore approve this requested support as outlined above.
Conclusion
The Tribunal is satisfied that all seven requirements in ss 34(1)(aa)-(f) have been met with respect to the following requested supports:
a)150 hours of chest therapy.
b)Funding of $13,223.21 for continence consumables.
c)Funding for the following additional consumables:
i.Fioscream ($42.00 per tube – every 2 months = $252 p/a),
ii.Voltaren ($34.99 per tube, every 3 weeks = $606 p/a)
iii.Deep Heat ($12.99 per tube every month = $155 p/a),
iv.Aloe Medicated Cream ($30 per tube every 2 months = $180 p/a),
v.Aloe Massage Lotion ($32 per tube every 3 months = $128 p/a),
vi.“Ease” Magnesium topical muscle spray ($39 per bottle x 2 = $78 p/a)
vii.Vicks – VapoRub ($14.69 per 100g tub – two each month = $380 p/a)
d)Reclassify the Applicant’s ‘home and living’ funding as core funding and include in such funding the following:
i.Four hours of specialist cleaning per week.
ii.Four hours of gardening per month.
Decision
The Tribunal sets aside the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth) as it relates to the supports specified in paragraph 255 of this decision.

I certify that the preceding 255
(two hundred and fifty-five)
paragraphs are a true copy of the
reasons for the decision herein
of General Member A. Williams

…..........................[sgd]...........................................
Dated: 29 September 2025

Hearing

2 and 3 September 2025

Counsel for the Applicant:

Solicitor for the Applicant:

Mr Christopher Bilboe

Intrepidus Law

Counsel for the Respondent:

Solicitor for the Respondent:

Ms Sarah Varney

Karl Rieschieck of Mills Oakley Lawyers