Clough and National Disability Insurance Agency (NDIS)

Case [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

  1. 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’).

  2. 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.

  3. 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

  4. 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.

  5. Mr Clough has the following diagnosed medical conditions:

    ·Cerebral Palsy

    ·Quadriplegia.

    ·Kyphoscoliosis (associated to his Cerebral…

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AGLC
Clough and National Disability Insurance Agency (NDIS) [2025] ARTA 1920
Case
[2025] ARTA 1920
Decision Date

CaseChat Overview and Summary

Scott Clough, a participant in the National Disability Insurance Scheme (NDIS), applied to the Administrative Appeals Tribunal (AAT) for a review of a decision made by the National Disability Insurance Agency (NDIA) regarding the adequacy of his funded supports. Mr Clough, who suffers from a range of severe medical conditions including cerebral palsy, quadriplegia, and blindness, sought additional funding for various supports, including 24/7 individual support at a higher intensity, hydrotherapy, short-term accommodation, and therapy supports. The NDIA had partially approved some of the requested supports but declined others, prompting Mr Clough’s application to the AAT. The primary legal issue the Tribunal had to address was whether the NDIA's decision to decline certain requested supports was legally sound. Specifically, the Tribunal had to determine if the requested supports met the criteria under section 34(1) of the NDIS Act, which requires that the supports be reasonable and necessary, taking into account factors such as the participant's disability, potential for increased social and economic participation, and value for money. The Tribunal carefully reviewed the evidence submitted by both parties, including medical reports, assessments, and statements from Mr Clough’s support team. It found that Mr Clough’s complex care needs justified a higher level of funding than initially approved by the NDIA. The Tribunal concluded that the NDIA’s decision to decline certain requested supports was incorrect and varied the decision to include additional funding for 24/7 individual support at a higher intensity, hydrotherapy, and therapy supports. This decision was based on the evidence demonstrating the necessity of these supports for Mr Clough’s well-being and independence. The Tribunal ordered that the NDIA revise Mr Clough’s support plan to include the additional funding as determined necessary.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 willhelp 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: $3,456.00Capacity 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 continenceconsumable/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): $10,014.00100 hours of Support Coordination to support me to connect to, engage with and coordinate my chosen service providers.Capital Supports: $15,000Assistive TechnologyFunding 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 upthe right AT for you. Your Plan Manager provider can claim the funds for your AT support using their provider portal without further NDIA approvalHome ModificationsSpecialist 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 myassessed amount.

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.