CVZM and National Disability Insurance Agency (NDIS) - [2025] ARTA 633

CVZM and National Disability Insurance Agency (NDIS) [2025] ARTA 633 (29 May 2025)
Applicant/s:  CVZM
Respondent:  National Disability Insurance Agency
Tribunal Number:                2023/1785

Tribunal:General Member D Heron
Place:Brisbane
Date:29 May 2025

Decision:

Pursuant to section 105(c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with a direction that within 14 days of this decision, CVZM’s statement of participant supports specifies the following supports as reasonable and necessary:
1.Supported Independent Living at 1:1 ratio for 154 hours per week inclusive of inactive overnights for 48 weeks and irregular SIL support;
2.Core social community participation weekday rates 1:3 ratio for 14 hours per week for 48 weeks;
3.Replication of all other supports in the current statement of participant supports for the plan period;
4.Plan reassessment is to be 12 months after the date on which these supports are included in the statement of participant supports; and
5.The management of funding is to remain plan managed.

…..............[SGD] ...............
General Member D Heron
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME –- reasonable and necessary supports – consideration of s 34 National Disability Insurance Scheme Act 2013 (Cth) – supported independent living – SIL – value for money – ratio 1:1.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth)
Secondary Materials
NDIS – Operational Guidelines - Reasonable and Necessary supports

Statement of Reasons
INTRODUCTION

CVZM (the Applicant) is a participant in the National Disability Insurance Scheme (the NDIS). She met access to the NDIS on the basis of significant and permanent impairments from Down Syndrome.
CVZM is 25 years old and lives with her parents in a rural town[1]. She attends a group program three days a week and receives the Disability Support Pension.
[1] Modified Monash Model 4 classification (MM4) rural town.
DECISION UNDER REVIEW
CVZM seeks external review of an internal review decision made by the National Disability Insurance Agency (the Respondent) on 7 March 2023. This decision affirmed an earlier decision dated 16 September 2022, to approve a Statement of Participant Supports.
CVZM applied to the Administrative Appeals Tribunal (AAT) for review pursuant to section 103 of the National Disability Insurance Act 2013 (Cth) on 20 March 2023. The AAT was abolished on 13 October 2024 and the Administrative Review Tribunal (ART) began on the 14 October 2024. By virtue of the transitional arrangements, CVZM’s matter was automatically transferred to the ART.
CVZM is seeking core social and community funding to attend group-based supports for 14 hours a week and Supported Independent Living (SIL) funding at the1:1 ratio (inclusive of inactive overnight support) for 48 weeks per year.
The Respondent contends that the 1:1 ratio of SIL is not reasonable and necessary for the purposes of s33(5)(c) and s34 of the NDIS Act and the Rules.
At the hearing held on 29 April, 30 April, 1 May 2025 via Microsoft Teams, CVZM was not legally represented and was advocated for by her mother. The Respondent was represented by Mr J Lessing of Counsel instructed by Ms K Lieschke of Sparke Helmore Lawyers. CVZM’s mother gave oral evidence during the hearing and called Ms Kelly-O’Brien, CVZM’s support worker to give oral evidence. The Respondent called Mr Mate, an independent occupational therapist. No further witnesses were called by either party to give oral evidence.
The Joint Tender Bundle was admitted into evidence. NDIS Technical Advice Branch advice dated 23 April 2025 was admitted into evidence on the first day of the hearing and marked R1. The NDIS Price Guide and Specialist Disability Accommodation Pricing Arrangements were tendered and admitted into evidence on the final day of the hearing, marked as R2 and R3 respectively.
BACKGROUND
In late 2020 CVZM’s parents purchased a home less than a 500-metre short walk from their family home. This house was purchased and placed in a testamentary trust, with the purpose to enable CVZM to live independently from her family in this home for her lifetime.
CVZM’s parents undertook detailed processes regarding CVZM’s future planning. This has involved moving from a MM5 small rural town in 2016 to their current town with the purpose of enabling CVZM to have opportunities for support when she had completed her schooling.
Planning for CVZM’s future security, safety and wellbeing into adulthood has been a primary consideration for the family. After purchasing the home in late 2020 CVZM’s parents tenanted the property for 2 years, with the intention of utilising the intervening time to organise with the NDIS and to prepare CVZM for her transition.
In May 2022 CVZM’s mother lodged a Home and Living application requesting SIL. The request was for 1:1 SIL for 48 weeks. The time period of 48 weeks a year was requested as the family will undertake informal supports for CVZM for the 4 weeks over December/January Christmas holiday period.
In August 2022 the NDIS approved SIL at a 1:2 ratio at a standard intensity rate, with approval for Specialist Disability Accommodation in the Improved Liveability 2 residents’ category [redacted].
Present day, CVZM lives with her parents in their home. CVZM’s home is currently tenanted, with a flexible end-date arrangement negotiated with the current tenants. CVZM accesses her group program 3 days a week and has support worker assistance on the other 2 weekdays. All other times including overnights and weekends, CVZM remains informally supported by her parents.
THE LEGAL FRAMEWORK
Section 31 of the NDIS Act sets out several principles that apply in the development of a NDIS plan for a participant. The purpose of the plan is to state how the funds provided for the participant’s supports are to be managed. The plan is the instrument that governs the funding the participant is entitled to receive under the NDIS:
31       Principles relating to plans
The preparation, variation, reassessment and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable:
(a)       be individualised; and
(b)       be directed by the participant; and
(c)where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(ca)where relevant, recognise and respect the relationship between participants and their families and carers; and
(d)strengthen and build capacity of families and carers to support participants who are children; and
(da) if the participant and the participant’s carer agree – strengthen and build the capacity of families and carers to support the participant in adult life; and
(e)consider the availability to the participant of informal support and other support services generally available to any person in the community; and
(f)support communities to respond to the individual goals and needs of participants; and
(g)be underpinned by the right of the participant to exercise control over his or her own life; and
(h)advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i)        maximise the choice and independence of the participant; and
(j)facilitate tailored and flexible responses to the individual goals and needs of the participant; and
(k)provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.
A participant’s plan does not take effect until the Statement of Participants Supports (SOPS) forming part of the plan has been approved by the CEO under s 33(4) of the NDIS Act. Section 33 of the NDIS Act sets out certain matters that must be included in a participant’s plan, including: have regard to the participant’s statement of goals and aspirations (s 33(1)); have regard to relevant assessments conducted in relation to the participant (s 33(5)(b)); and have regard to the operation and effectiveness of any previous plans of the participant (s 33(5)(f)).
For supports to be funded by the NDIS, section 34 of the NDIS Act identifies what establishes a reasonable and necessary support under the scheme. Section 34(1) is cumulative, and all the criteria must be satisfied.
Section 4 provides the general principles guiding actions under the NDIS Act and relevantly states:
Section 4 - General principles guiding actions under this Act
(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 relevant rules in respect of this review are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Supports Rules); National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (‘NDIS Supports Transitional Rules); and the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (NDIS Miscellaneous Transitional Rules).
Rules 3 and 5 of the Supports Rules are important expanding upon the s34 criteria, and relate specifically to subsections 34(1)(c ) - (e) of the NDIS Act and provide as follows:
Value for money
3.1     In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a)     whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)     whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c)     whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d)     for supports that involve the provision of equipment or modifications:
(i)      the comparative cost of purchasing or leasing the equipment or modifications; and
(ii)     whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e)     whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f)      whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
Effective and beneficial and current good practice
3.2     In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a)     published and refereed literature and any consensus of expert opinion;
(b)     the lived experience of the participant or their carers; or
(c)     anything the Agency has learnt through delivery of the NDIS.
3.3     In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary, seek, expert opinion.
Reasonable family, carer and other support
3.4     In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:
(b)     for other participants:
(i)      the extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community; and
(ii)     the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:
(A)     the age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and
(B)     the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and
(C)    the extent of any risks to the long-term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and
(iii)     the extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes;
(c)     for all participants—the desirability of supporting and developing the potential contributions of in formal supports and networks within their communities.
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.
It is important I also consider the general principles of the Act contained in section 4 in conformity with section 34(1) and the Rules, noting that if one of the requirements in ss 34(1)(aa)-(f) is not satisfied, then the requested support cannot be considered reasonable and necessary to be funded by the NDIS.
SUPPORTED INDEPENDENT LIVING
Supported Independent Living is funding for support worker assistance provided by the NDIS for participants who have higher support needs and require some level of help at home all of the time.[2] Ratios of support such as 1:1 mean that a person is supported individually by a support worker, whereas ratios such as 1:2 or 1:3 mean that two or three participants are supported by the same worker in a shared arrangement. Ratios of support are based on a person’s support needs, within life domains across different times of the day.
[2] NDIS Supported Independent Living Operational Guideline published April 2025.
EVIDENCE
I have considered all the written evidence provided in the Joint Tender Bundle filed to the Tribunal, the oral evidence provided at the hearing along with both parties’ closing submissions. I will refer to the evidence that is directly relevant to my determination of this matter.
Applicant’s Plan Goals
In considering the Applicant’s position, I have given thought to her current plan goals pursuant to section 33(5)(a) of the NDIS Act which are as follows:
Short-term
·I would like support to transition into independent living that meets my support needs by the end of 2022.
·I would like support to safely access and participate in the community to engage with peers and build my social networks.
Medium-to long term
·I would like support to better communicate and express myself for building positive
·relationships.
·I would like to build my daily living skills at home and in the community to lead a life of increasing independence.
·I would like support to maximise my safety, mobility, health and wellbeing.
·I would like support to find and keep a job be an active community member.
The Respondent’s position
The Respondent contends that the request for SIL at the 1:1 ratio is not related to CVZM’s disability. The Respondent states it is a result of CVZM being unable to find a housemate to share the 1:2 ratio funded SIL supports. The Respondent contends therefore the support requested does not satisfy Rule 5.1(b) in that the support is not related to CVZM’s disability.
The Respondent relies upon the functional capacity assessment of the independent occupational therapist, and contends that the Tribunal should remit the original decision with a direction that CVZM’s funding for SIL be as follows:
·16 hours per week at 1:1
·48 hours per week at 1:2
·104 hours per week at 1:3 (this includes 56 hours per week for inactive overnight assistance).
EVIDENCE
Evidence about CVZM
CVZM has Down Syndrome and her impairments include:
·Moderate intellectual disability impacting expression, comprehension, reduced concentration and attention, easily distracted;
·Behavioural challenges: absconding, verbal aggression, physical aggression, theft;
·Physical delays resulting in reduced gross and fine motor coordination.[3]
[3] JTB, T8, Respondents Supplementary Statement of Issues, Facts and Contentions dated 7 March 2025 p383.
CVZM’s mother
CVZM’s mother gave oral evidence on the first day of the hearing. Her oral evidence is summarised as:
·CVZM is a much-loved daughter and the youngest sibling of three adult children.
·CVZM has extremely limited awareness of daily reality, her own safety and limited understanding of complex concepts or ideas.
·CVZM denies she has Down Syndrome and refutes this when questioned.
·CVZM is very routine orientated with variation in established routines causing emotional dysregulation.
·CVZM spends the majority of her time living in her own reality where she has friendships and romantic relationships with fictitious people, celebrities from television, movies and sports teams.
·To CVZM these imaginative friendships and romantic partnerships are real and taken very seriously, whereby she experiences substantial emotional reactions to occurrences within them, such as these friendships ending and these romantic relationships breaking up.
·She is very vulnerable and can be overly friendly toward men, creating fantasy imaginative relationships in her mind, with a male she may have just seen in passing at a shop.
·CVZM has experienced lifelong sleep issues including difficulty understanding it is time to go to sleep, night waking and difficulty returning to sleep . CVZM’s mother is awake two to three times a night to prompt her back to bed. Medications, interventions and various therapies have all been trialled without success over CVZM’s lifetime to regulate her sleeping pattern.
·CVZM is extremely frightened of storms and during times of bad weather she experiences high anxiety and panic attacks. She is also frightened of crowds, loud noises and dogs that are not her own.
·CVZM absconds when not watched consistently. CVZM’s mother described instances of being occupied in another task, and CVZM during that time will bolt off down the street.
·CVZM and her mother’s relationship has been strained over the past few years as CVZM has formed the view that it is her mother’s fault that she cannot live in her own home.
·CVZM displays oppositional behaviour toward her mother with verbal and physical abuse. CVZM has told people on occasion she does not have a mother and that her mother is dead.
·This build-up of resentment has increased CVZM’s emotional dysregulation, where along with violence CVZM will be obstinate, refusing to follow any of her mother’s requests or instructions.
·CVZM will often refuse to follow any of her mother’s prompting and ‘pack a bag’ walking down the street saying she is off to ‘catch a train to REDACTED’. CVZM’s mother explains she cannot leave CVZM unattended at home.
·CVZM’s mother explains she can only take her grocery shopping or to appointments when CVZM is either at her group program, with her support worker or her father is home from work. Her mother and father negotiate their employment arrangements to ensure there is someone with CVZM at all times.
·CVZM’s parents spent time and effort choosing her current group program. Other local programs were carefully deliberated on; however, group dynamics, size and activities were not suited to CVZM.
·With regards to finances CVZM has no concept of money and believes an ATM card will have an unlimited amount of money. She has her own bankcard that is monitored. She has a history of taking money and items from her mother as presents for fictitious friends.
·Their current neighbourhood residents are well-accustomed to CVZM, understanding her behaviours and vulnerabilities. CVZM’s mother has a good relationship with all the neighbours who understand CVZM’s risks and keep an eye out.
·CVZM’s mother describes suffering psychological, emotional and physical carer burnout from supporting CVZM and the resentment she receives, alongside the stress of the current NDIS funding situation and in dealing with her own personal health issues.
·As a family they have ‘saved’ CVZM’s NDIS funds, choosing to support CZVM outside of her formal supports during weekdays. Their family are conscious that NDIS is government funding to be spent wisely and appropriately.
·The family have been suggested by friends and providers to use funding for respite, though they strongly assert their preference is to save the funding until CVZM has the appropriate support to move into her home.
·The family seeks 48 weeks of formal funding for CVZM, with the intention for informal support over the Christmas period each year.
·During future planning for CVZM, the family looked at a group home in town, however the residents were both males and female and it was not considered a good fit for CVZM.
·CVZM’s parents did not think that relocating CVZM to a bigger town or city with more SIL options would be positive, given she has always lived in small towns and does not cope well with changes, crowds or faster paced environments.

CVZM’s mother also supplied a Statement of Lived Experience dated 13 April 2023.[4] She states:
As [CVZM’s] mother and main Carer, I have worked every spare moment available over the last seven years to ensure that she has the best, most engaged and fulfilled life she could possibly have.
I engaged with the NDIS, developed her original Plan and adapted subsequent Plans over those years as her life has evolved. I have built her great Provider and Carer networks. [CVZM] needs to have the independent life she deserves and my family, my husband and I need the chance to repair the inadvertent damage that has been done to all of our lives…
I consider [CVZM’s] behaviours and attitude are solely based on the fact she believes she is suffocated and restricted as a result of living where she does. She knows that when she is an adult, she gets to make choices in her life. [CVZM] calls herself a woman; nobody is allowed to address her as a girl. By gaining her independence and moving into her own home, the behaviours documented earlier will moderate substantially and hopefully less specialist NDIS funding being required. Unfortunately, each NDIS participant cannot just be squeezed into particular “sections” of the necessary NDIS criteria. [CVZM] is an individual Down syndrome case. No two are the same and she must be treated according to her individualised and documented characteristics.
I love our beautiful young woman. Her sense of humour and cheeky quirks (although I don’t see them very often), are what makes this young lady such an absolute delight. If anyone had ever told me how hard it was going to be to be her mum, I most certainly would have thought twice about it, but I didn’t have a choice. I can’t not care for her, I don’t want [CVZM] to be at risk in her own home, but having [CVZM] living in our home is destroying my life as her Primary Carer and it just has to stop. For [CVZM’s] independence, health and well-being, she must be able to receive 1:1 funded care she has chosen to live in her own home.[5]
[4] JTB, T12, Statement of Lived Experience of CVZM’s Mother dated 13 April 2023, p406-415.
[5] JTB, A12, Lived Experience of CVZM’s Mother dated 13 April 2023 p406-415.
Mr Mate, occupational therapist
Mr Mate was called as an independent expert witness to give oral evidence by the Respondent. Mr Mate is an occupational therapist, his evidence can be summarised as:
·He assessed CVZM in-person on 9 September 2024.
·He spent the first portion of the assessment talking with CVZM’s mother and her support worker, before meeting with CVZM and getting her to perform some functional capacity assessment tasks related to her morning routine.
·The assessment first took place at CVZM parents’ home, and then walked to the new home and undertook some of the assessment there.
·CVZM had basic awareness that Mr Mate was present because of the NDIS and her house. He reports that she was giggling when asked to simulate having her shower, and to undertake other physical tasks.
·CVZM was also giggly when undertaking transfers and walking and he reports that she looked to be intentionally bumping into the walls during some of the assessment.
·Recommended CVZM has 16 hours of 1:1 support per week and 8 hours inactive support overnight at 1:2 or 1:3 ratio of shared support.
·Recommended CVZM could be supported with 1:2 or 1:3 shared support for the remaining hours in the week.
Mr Mate also supplied his report dated 11 October 2024 outlining his above recommendations.[6]
[6] JTB, T7, Functional Capacity Assessment Mr Mate dated 11 October 2024, p338-379.
Ms Kelly-O’Brien, disability support worker
Ms Kelly-O’Brien was called to give oral evidence by the Applicant. Ms Kelly-O’Brien is a disability support worker for CVZM. Her evidence can be summarised as:
·Has been CVZM’s support worker for over 7 years. She supports CVZM with personal care and daily activities as well as community access.
·CVZM talks about ‘her house’ and is looking forward to living there.
·CVZM has been working on checklists for over 4 years of things that need to be done when living in her house. CVZM understands there are tasks like grocery shopping, cooking, cleaning, stripping her bed, general laundry and hanging out washing that need to be done. CVZM needs full assistance including active prompting in completing all these tasks.
·CVZM is fearful of the stove and oven due to the heat and is also fearful of chopping using knives. Support worker undertakes all these tasks and reads the instructions to verbally explain to CVZM what tasks they need to undertake and uses prompting for tasks that CVZM can undertake.
·Activities such as walking the dogs, CVZM is fearful of other dogs and will become frightened, startled and bolt/run without any sense of direction or safety concerns.
·Supporting CVZM in the community, requires constant environmental scans and monitoring as she has limited sense of personal safety when triggered or heightened and will run away.
·CVZM can be triggered by loud noises, dogs, crowds, with bad weather and storms also known to induce anxiety and panic attacks.
·When taken to swimming a constant scan of the environment is required as CVZM becomes distressed when there is too much noise or too many people in the area. CVZM requires full assistance to get changed in and out of her swimmers.
·CVZM spends the majority of her time in her own reality and consistently talks about her friendships and relationships with imagined characters and people from television. CVZM’s support worker described how she became distressed when she believed the support worker had been talking with ‘her boyfriend’. This resulted in CVZM being angry and highly, upset despite being consistently reassured this was not the case. CVZM cannot separate her imagination from reality.
·These imaginary relationships affect her deeply, she will cry, she will be upset, she will be giddy with excitement. If her ‘family’ who is a famous football team whom she has never met in real life lose a game, she will be inconsolable.
·CVZM can be ‘quite giddy’ with males and is therefore vulnerable from this perspective and can form unhealthy attachments based on imaginary circumstances. CVZM is determined about specific and certain things in her daily life becoming emotionally dysregulated when her specifications aren’t able to be met.
·CVZM attends a group program during the week with other adults with disability, majority women aged 18-50 years. She reports she has a ‘best friend’ one week, only for that relationship to inexplicably suddenly sour. This is a repeated pattern of behaviour, with CVZM unable to grasp the ability to maintain friendships.
Ms Kelly-O’Brien also provided the Tribunal with a letter dated 30 September 2023.[7]
Written Evidence
[7] JTB, Letter from Ms Kelly-O’Brien dated 30 September 2023 p453.
Evidence of Mr Isaiah Chagumaira, behaviour support practitioner
Mr Chagumaira is a behaviour support practitioner engaged by the Applicant. He wrote a report entitled ‘NDIS Recommendations for SIL’ dated 27 March 2023 that was provided to the Tribunal.
At the time of writing this report CVZM was 23 years old and attending a group program at a 1:2 ratio for two days a week. She was utilising support worker assistance three days a week within her parent’s home and in the community at the 1:1 ratio. CVZM was informally supported by her parents at all other times.
Under the heading ‘Harm to self – Absconding’ Mr Chagumaira states that:
CVZM has also been known to rapidly abscond if in the company of non-preferred person, and when she is in on nonpreferred environment or asked to take part in a nonpreferred task. CVZM is more likely to abscond if there are thunderstorms as these provoke an extreme level of fear to her. CVZM is likely to wander from her new home, ending up at unknown destination as she has no sense of direction or how to reach a destination.[8]
[8] JTB, T13, Report of Mr Chagumaira dated 28 July 2023, p420.
Mr Chagumaira states that CVZM has consistently expressed the desire to have a better quality of life or a life of her own.[9]
[9] Ibid, p.426
Evidence of Ms Amy Conheady, occupational therapist
Ms Conheady is an occupational therapist who has worked with CVZM since May 2023. Ms Conheady wrote an occupational therapy assessment report dated 11 August 2023 in support of CVZM’s SIL request.
At the time of Ms Conheady’s assessment CVZM was 23 years old. Results from the sensory profile undertaken indicated that CVZM:
Appears to be highly aware of touch and can be particular about materials and textures. CVZM frequently dislikes being touched, CVZM will not touch others during conversation and CVZM will frequently move away from others if they get too close to her. CVZM almost always avoids activities that make her hands messy or she will wear gloves, CVZM does not like going barefoot and does not like the feeling of getting her hair cut. CVZM is always aware of if she has been bruised or scratched, however will occasionally not seem to notice if her face gets dirty or notice someone touching her arm or back.[10]
[10] JTB, T18, Report of Ms Conheady dated 25 January 2024 p456.
Ms Conheady made reference to receptive communication and observed that CVZM often required commands/prompts to be restated as when presented with 2-3 prompts CVZM could only recall one of them. Ms Conheady also noted CVZM did not engage in any reciprocal conversations with her assessors.
Ms Conheady also provided another report dated 25 January 2024 with the recommendation for supported independent living of:
·56 hours of inactive sleepover per week;
·63 hours of 1:1 support per week; and
·49 hours of 1:2 support per week.
Appendix B of Ms Conheady’s report details ‘Amended Functional Capacity table’ states her proposed ratio and roster of care in full, with clinical reasoning justifications explaining these ratios of support recommendations for each domain.
Evidence of Ms Brown, advanced practitioner behaviour support
Ms Brown, an advanced practitioner in behaviour support provided an undated letter outlining her recommendations on CVZM’s supported independent living request. She states that CVZM:
does not want to be identified as a person with a disability, she does not want to ‘feel different’ to her peers of a similar age. Although it has been described that [CVZM] can have an unrealistic view of the world, believing that what she sees on television and in media is a true representation of life, she should be afforded the opportunity to create her own independence in a safe, secure, and supported environment.
Potential risks of concern and harm, suggested but not limited to:
·Increased escalation of current behaviours of concern and harm
·Increased attempts at absconding
·Increased hostility and rejection of familial assistance
·Increased desire to acquire independence externally
·Increased risk of external influences on vulnerability and safety.[11]
[11] JTB, T1E, Ms Brown letter undated p65.
Ms Brown recommends supported independent living in her letter of:
1-1 active support during the hours of 7am -10pm with a non-active sleep over 7 days
per week across 52 weeks of the year.[12]
[12] Ibid, p66.
She also writes in relation to behaviour support that:
Given the current nature and frequency of behaviours, Behaviour Support will also assist in the transition to a new property, acknowledging that environmental changes can increase triggers and escalate behaviours of concern and harm in the initial period. It is also a requirement that the Behaviour Support identifies any potential restrictive practices that may be in place, to safeguard [CVZM] and her providers and meet the regulatory requirements. The need to both formulate strategies and provide staff training surrounding these strategies, along with the development of teaching skills to provide Functionally Equivalent Replacement Behaviours is recommended to require the following:
90h Specialist Behaviour Intervention Support… and 30h Behaviour Management Plan, Training in Behaviour Management Strategies… across a 12-month plan.[13]
[13] Ibid, p68.
Evidence of Ms Llewellyn, occupational therapist
Ms Llewellyn provided an occupational therapy SIL Assessment report dated 29 September 2021. At the time of the SIL assessment CVZM was 21 years old. Ms Llewellyn recommended:
·7 hours at 1:2 ratio during the day (exclusive of her group program)
·7 hours at 1:1 ratio during the day
·11 hours inactive overnights
Evidence of Mr Adams, physiotherapist
Mr Adams provided a report dated 31 January 2022, from an in-person assessment he undertook on 17 January 2022 at CVZM’s parent’s home.
The purpose of the report was to assess CVZM’s capacity for SIL. Mr Adams outlined CVZM’s lack of spatial awareness, reduced fine motor control and coordination along with her history of falls in the preceding 12 months. He recommended support for daily living activities such as dressing and showering.
CONSIDERATION
Supported Independent Living (SIL)
Is the 1:1 ratio SIL support in relation to CVZM’s disability under rule 5(1)(b)?
The Respondent contends that the SIL support under Rule 5.1 cannot be provided or funded under the NDIS as it is not related to the participant’s disability.
The Respondent accepts CVZM requires 1:1 support at times, particularly in her self-care and morning/evening routines. The Respondent contends to the extent that CVZM seeks 24/7 1:1 support other than when participating in group activities, it appears that the justification is that no suitable housemate has been found to share the home. The Respondents states anything less than 1:1 support means CVZM will not have sufficient funding (in her plan) for a formal support worker to be present at all times.
The Respondent’s position is that it is not the responsibility of the NDIS to make up shortfalls in local housemate markets or SIL facility markets. Choice and control, for a participant, has practical limits. If choosing to live in that home before a suitable housemate has been identified is unfeasible, because CVZM is not funded for 24/7 1:1 support, then options, including remaining in the current family home until a housemate is located or locating other accommodation offered through a SIL provider need to be explored.[14]
[14] JTB, 8, Respondent’s Supplementary Statement of Facts, Issues and Contentions dated 7 March 2025, p384.
The Respondent quotes the Productivity Commission report at p 232 stating:
Inevitably, the NDIS will not be able to meet all of an individual’s housing preferences. But the provisions outlined above would allow individuals to decide which preferences they valued most highly and which preferences they were prepared to trade off.
Ms Brown in her FCA states that potential risks of concern and harm for CVZM in not having majority 1:1 ratio SIL are suggested but not limited to:
·Increased escalation of current behaviours of concern and harm
·Increased attempts at absconding
·Increased hostility and rejection of familial assistance
·Increased desire to acquire independence externally
·Increased risk of external influences on vulnerability and safety.[15]
[15] JTB, T1E, Ms Brown letter undated p65.
Ms Conheady recommends:
A review after the first 12 months to re-assess and gradually reduce 1:1 hours in small increments as [CVZM’s] confidence and capacity to be alone for small periods of time increases over time, e.g. 1 hour. The reporting therapist takes into consideration the rural location (MMM5) of where [CVZM] lives and the small disability community compared to regional and metropolitan areas, impacting the population size of people in similar circumstances as [CVZM]. The recommendations are accompanied by the expectation that a participant of the same-gender and similar functional capacity continue to be rigorously investigated by all members of [CVZM’s] coordinators of support.[16]
[16] JTB, T18, Report of Ms Conheady dated 25 January 2024, p461.
The oral evidence of CVZM’s mother and support worker confirm their lived experience of CVZM’s daily needs, dysregulation and safety risks. Their evidence also confirmed it would be good for CVZM to have a housemate in future, but that the 1:1 SIL ratio being sought is based on CVZM’s current needs.
Overall on the lived experience evidence and the evidence of CVZM’s treating therapists and practitioners I am satisfied that SIL at the majority 1:1 ratio is due to CVZM’s current needs, rather than as a want or preference. On this basis I find the SIL support is provided in relation to CVZM’s disability.
Reasonable and Necessary criteria
Whether the support is necessary to address the needs arising from the impairment in relation to which CVZM met the disability requirements: section 34(1)(aa) NDIS Act
CVZM met access for her impairments from Down Syndrome and it is not disputed that CVZM lives with impairments including:
·Moderate intellectual disability; impacting expression, comprehension, reduced
concentration and attention, easily distracted
·Behavioural challenges: absconding, verbal aggression, physical aggression, theft
·Physical delays resulting in reduced gross and fine motor coordination.
CVZM having lived her entire life with her parents in their home, will undergo a large life-stage transition moving into her own home. It is clear on the evidence that this transition will require an intensity of supports to ensure safety and assist in the inevitable changes to CVZM’s daily structure and routines.
The report of Ms Llewellyn explains:
CVZM requires repetition when learning new things due to her intellectual disability and her capacity to retain new information. CVZM is very responsive to routine and therefore this should be utilised to build CVZM’s capacity when living independently. CVZM has extremely limited awareness of safety and therefore exhibits a number of behaviours which have a strong potential to cause harm. CVZM requires constant supervision to ensure that she does not put herself into a position that could cause harm.[17]
[17] JTB, T1A, SIL Assessment Report dated p16.
On the evidence provided I am satisfied that CVZM’s impairments mean she requires the full assistance of another person:
·for her self-care;
·for activities of daily living such as meal preparation, cleaning, laundry and grocery shopping;
·for community access due to sensory overload, lack of personal safety awareness and impulsive behaviours.
Furthermore, I am satisfied that CVZM:
·has no capacity for self-management activities;
·engages in absconding behaviour when emotionally dysregulated;
·is highly sensitive to change, favouring routine and structure;
·presents as outwardly friendly though exhibits oppositional behaviours, aggression and executive dysfunction especially toward family;
·struggles with oral communication especially when frustrated or heightened;
In his report, the behaviour practitioner Mr Chagumaira explains that:
CVZM has little self-awareness around her body and what constitutes privacy and unsafe behaviour. CVZM often walks around the house naked and does not understand this to be an issue. CVZM is very friendly and just wants to have friends and be popular. She is naturally interested in finding a life partner, like many of her peers. Unfortunately, CVZM’s trusting nature makes her vulnerable to exploitation and she will require intensive support to develop a system to avoid being victimised while being independent. CVZM has been taught stranger danger but has little comprehension around the severity or potential harm of this.[18]
[18] JTB, T13, Report of Mr Chagumaira dated 28 July 2023 p422.
62.For her first time living away from her family, I am satisfied that SIL at a majority 1:1 ratio will ensure that CVZM’s safety, self-care and self-management needs are met and managed. It will also allow CVZM to undertake her daily activities and access the community safely for community participation and social interaction.

I am satisfied that CVZM meets s34(1)(aa) because SIL at the majority 1:1 ratio is necessary to address the needs arising from her impairments.
Whether the support will assist CVZM to pursue the goals, objectives and aspirations in the participant’s statement of goals and aspirations: s 34(1)(a) of the NDIS Act
Section 33(1)(a) of the NDIS Act states that a plan must include the statement of goals identifying their aims, objectives and aspirations during the plan period.
As already stated CVZM’s current plan goals include having support to transition into independent living that meets my support needs, and support to safely access and participate in the community to engage with peers and build my social networks.
CVZM’s mother and her support worker both gave sincere oral evidence that CVZM has desired to move out of her family home to live independently for several years. Each gave evidence that this desire preceded the purchase of the house in late 2020.
CVZM’s mother gave written and oral evidence that she is unable to leave CVZM unattended and when informally supported by her mother CVZM regularly engages in oppositional behaviours.
CVZM’s mother gave oral and written evidence that she suffers carer burnout along with her own health issues. She explained she is unable to get CVZM to acquiesce through prompting to manage her self-care needs or undertake daily activities. CVZM’s mother understandably explained that for dignity reasons many self-care activities are not tasks her father can assist in. She explained CVZM is an adult female who cannot be physically compelled to undertake tasks when she has decided she doesn’t want to engage in them. She gave evidence that CVZM requires the dignity of being supported and prompted by females around her daily showering, toileting and hygienic self-care needs.
CVZM’s support worker gave evidence that CVZM requires the full assistance of another person while in the community especially around scanning the environment for possible triggers that may lead CVZM to ‘bolt off’.
Ms Llewellyn the occupational therapist who prepared the SIL Assessment Report dated 29 September 2021 states:
CVZM is at extreme risk of harm to herself due to her behaviours of concern, which involves absconding due to irrational ideas and decision making (moving to REDACTED) or phobias. CVZM should be supervised at all times and positive behaviour support strategies should be implemented to support CVZM and reduce risk of harm.[19]
[19] JTB, T1A, SIL Report of Ms Llewellyn dated 29 September 2021, p21.
SIL at a majority of 1:1 ratio will assist CVZM in pursuing her goal having support to transition into independent living that meets my support needs, and support to safely access and participate in the community to engage with peers and build my social networks.
72.Through funding of SIL at the majority of 1:1 ratio, CVZM’s self-care needs will be supported in her own home. This includes her daily activities and household tasks. CVZM would also be able to access the community safely and with the level of supervision, care and support that her mother and informal supports cannot provide. SIL at the majority of 1:1 ratio will aid CVZM in learning to emotionally regulate in the context environmental triggers.
I am satisfied that there is sufficient probative evidence before me that SIL at the majority of 1:1 ratio will assist in pursuit of CVZM’s current goals around living independently and safely participate in the community, hence the criterion in s 34(1)(a) is met.
Whether the support will assist CVZM to undertake activities to facilitate the participant’s social and economic participation: s 34(1)(b) of the NDIS Act
CVZM’s mother gave oral evidence that CVZM has become agitated, despondent and at times verbally and physically abusive as a result of her frustration from living with her parents, versus living in her own home. She explained that CVZM has seen her older siblings move out and live their own adult lives.
CVZM’s mother explained that living independently with majority 1:1 support will provide CVZM with the capability of being as independent as she can be, running her household, grocery shopping, cooking and cleaning in a way that will encourage her overall personal growth and wellbeing as an adult.
Supported independence, where CVZM experiences the typical life course stage of running her household within her own abilities, undertaking shopping tasks to meet her daily needs, and the overall experience of social and economic interactions with adults would facilitate a broader experience of participation in social and economic life. On the evidence before me it is clear this is something that CVZM understands is being experienced by her older siblings and other adults in a manner which is not facilitated while she is cared for in the family home.
It is for the above reasons that I am satisfied that the support will facilitate CVZM’s social and economic participation and s 34(1)(b) is met.
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: s 34(1)(c) of the NDIS Act
Value for money considerations involve far more than determining the cheapest available option. In considering this criterion I turn to Rule 3.1 Value for money which states:
Value for money
3.1     In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a)     whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)     whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c)     whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d)     for supports that involve the provision of equipment or modifications:
(i)      the comparative cost of purchasing or leasing the equipment or modifications; and
(ii)     whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e)     whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f)      whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
The majority 1:1 SIL funding when compared with a ratio of majority 1:2 SIL represents a doubling in funding a year. The obvious reason is that it is cheaper to support two people under one roof.
CVZM’s mother states there is value for money because no SDA funding is required for CVZM’s lifetime, and any tenant that shares in the future. The Respondent countered that when considered in totality SIL at the1:2 ratio including funding for SDA is lower priced than SIL 1:1 in her own private home.
I have considered this contention, and the evidence filed regarding SDA and the price guides and agree that 1:2 SIL inclusive of SDA is the lower priced option than the funding being sought for CVZM.
Further the Respondent contends that the SIL ratios as recommended by Mr Mate are reasonable and necessary.
During the cross-examination of Mr Mate by CVZM’s mother, it became apparent Mr Mate had not had the opportunity to see the report of CVZM’s behaviour practitioner in preparation for his assessment. As a matter of procedural fairness, the matter was stood down for half an hour while Mr Mate read the behaviour support report of Mr Chagumaira.
On resuming the hearing Mr Mate was asked whether the report had changed any of the opinions he expressed in his functional capacity assessment. While Mr Mate agreed it would have been good to have had the opportunity to read the report before undertaking his assessment, he stated that its content did not change the opinions he expressed.
Mr Mate states in his report:
CVZM’s mother provided most of the information about medical conditions and symptoms during the assessment. She reported that CVZM’s symptoms vary, and these variable days are typically related to her behaviours. CVZM’s mother stated that CVZM can have 3 ‘nasty’ days per week where she can engage in challenging behaviours, particularly verbal aggression, irritability and defiant behaviour. CVZM’s mother reported that for the other 3-4 days per week, CVZM’s days are variable.[20]
[20] JTB, T7, Functional Capacity Assessment of Mr Mate dated 11 October 2024, p345.
Mr Mate explained that for the purpose of the functional assessment, CVZM was asked to demonstrate, or alternatively simulate all tasks where possible. Where Mr Mate was unable to directly observe, he drew assumptions on CVZM’s capacity based on his observation of other tasks with similar functional demands, as well as by other information he was provided.
Mr Mate gave oral evidence that CVZM was giggly when asked to demonstrate tasks such as simulating showering, and bed transfers. He described that CVZM would do some pretend falls onto the ground during bed transfers, and for tasks like walking down the hallway would bump into walls. CVZM’s mother explained that CVZM did find it funny to be simulating or pretending to do tasks for Mr Mate like showering because she was fully dressed and the time of day was the mid-morning.
Mr Mates states that:
CVZM would only require 1:1 support for 1 hour each morning, 1 hour per week for grooming (nail clipping, shaving,) a few hours to facilitate 1:1 community access a few days per week and a few hours for learning, communication, and self-management tasks to be performed by her support workers. Beyond these, CVZM would require 1:2 or 1:3 support. This is based on my observations and the fact that CVZM only receives 1:3 support for around 8 hours per day when she is at her day program, indicating that she can be safely supported at a 1:3 ratio.[21]
[21] JTB, T7, Functional Capacity Assessment of Mr Mate dated 11 October 2024, p373.
Mr Mate’s functional capacity assessment (FCA) was robust and I make no criticism of his assessment. I do find that an independent neuropsychology assessment or behaviour support assessment may have better assisted the Tribunal due to the different purposes these assessments serve. While Mr Mate’s FCA gave a detailed account of CVZM’s ability to perform functional tasks, her emotional regulation issues, ability to cope and respond to changes in her environment, are to be considered alongside her functional capacity.
It is for this reason that I give weight to the reports that detail CVZM’s behaviours, and the lived experience and oral and written evidence of both CVZM’s mother and her support worker in understanding CVZM’s behaviour support needs. I find that both CVZM’s mother and support worker provided forthright and intimate insights regarding the intricacies and realities of CVZM’s daily life needs.
Based on CVZM’s history and the absence of engaging with capacity building supports, there is the possibility that CVZM does respond well to her transition and engagement with capacity building supports while living in her home with majority 1:1 support. CVZM may then be able to share with 1:2 SIL by the end of the 12-month plan.
I do not consider a comparable support of majority SIL a 1:2 ratio would achieve the same outcome of promoting CVZM’s independence and safety, noting there will be a significant adjustment period for CVZM living outside the family home in this first 12 month plan period. In this respect I don't consider the comparable support would achieve the same outcome at a substantially lower cost such the benefits of the alternative outweigh the benefits of the 1:1 SIL support, particularly in consideration of the substantial number of activities where I consider CVZM requires the full assistance of a person to support her safety and behavioural needs.
I am of the view that 1:1 ratio of SIL for the majority of the week represents value for money. The costs of the support are reasonable having regard to the capacity of the support to substantially improve life stage outcomes, self-confidence and be of long-term benefit to CVZM. I further consider the benefits achieved means the support represents value for money relative to the lesser cost of alternative support, which I do not consider will be as likely to produce the same outcomes in terms of safety and the intensive behavioural support required. The requirement of value for money in s 34(1)(c) has been met.
Whether the support will be, or is likely to be, effective and beneficial for CVZM, having regard to current good practice: s 34(1)(d) of the NDIS Act
Rule 3.2 of the Supports Rules states that:
In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances.
That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
On the evidence provided, I am satisfied that CVZM has maintained her desire to live independently from her parents for some years.
The Respondent contends that there is no clinical rationale for the support to the effect it will improve life stage outcomes and be of long-term benefit to CVZM. The Respondent states CVZM is seeking individual funding to enable her transition to her home to occur faster on account of being unable to secure a housemate.
I find that the evidence shows that CVZM does require a majority of individual direct support due to her behaviours and also because she has never lived away from her family home. I consider the practical matter of CVZM’s transition period must be part of this decision. As CVZM has never lived independently before, on the evidence I find that her transition is likely to need intensive, immediate and active support for the initial adaption plan period of 12 months.
I am satisfied that the support is likely to be effective and beneficial also given the current state of CVZM’s relationships with her informal supports especially her mother. By providing CVZM with her own space where she can be supported safely it will be likely to improve her overall wellbeing while sustaining her informal relationships. This will also allow CVZM’s mother to start to assume the role of ‘mother to an adult daughter’ rather than carer.
On the evidence I am satisfied that the support is likely to be effective and beneficial alongside the existing funded support in the plan, thus criteria 34(1)(d) is met.
Whether 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: s 34(1)(e) of the NDIS Act
CVZM’s mother has explained in both her written and oral evidence, the carer strain and burnout that she currently experiences. The evidence before me is that CVZM as a 25-year-old does not wish to be majority informally supported by her family. It is also clear on the evidence that CVZM is a much-loved member of the family and that her family are strong advocates in planning for CVZM’s future and for her long-term best interests.
I also take into account that CVZM’s parents and family want to continue their close family bond, seeing CVZM as an adult living in her own environment. This is evident from their plan of CVZM living only a short walk away from the family home along with the plans to informally support CVZM for four weeks every year, while they are emotionally and physically able to still do so.
I find that SIL at the majority of 1:1 ratio meets s 34(1)(e) of the Act.
Whether the support is a NDIS support for the participant: s 34(1)(f) of the NDIS Act
Section 34(1)(f) is a new amendment to the NDIS Act which commenced on 3 October 2024 and requires that a support is a NDIS support as prescribed in the in list in Schedule 1 of the NDIS Supports Transitional Rules. I am of the view that supported independent living is a NDIS support under 14(a), 14(d), 15 (a), 15 (f) and 27 (a) of Schedule 1 of the NDIS Supports Transitional Rules.
For completeness I have also turned my mind to whether the NDIS is the most appropriate system to fund this support, and on the evidence before me I have been satisfied of this for all the reasons I have stated above.
CONCLUSION
The Tribunal has been satisfied of all of the seven requirements in ss 34(1)(aa)-(f) of the NDIS Act.
DECISION
Pursuant to section 105(c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with a direction that within 14 days of this decision, CVZM’s statement of participant supports specifies the following supports as reasonable and necessary:
1.Supported Independent Living at 1:1 ratio for 154 hours per week inclusive of inactive overnights for 48 weeks and irregular SIL support;
2.Core social community participation weekday rates 1:3 ratio for 14 hours per week for 48 weeks;
3.Replication of all other supports in the current statement of participant supports for the plan period;
4.Plan reassessment is to be 12 months after the date on which these supports are included in the statement of participant supports; and
5.The management of funding is to remain plan managed.
Date of hearing:  29 April, 30 April, 1 May 2025
Representative for the Applicant:            CVZM’s mother
Counsel for the Respondent:                    Mr J Lessing of Counsel
Solicitors for the Respondent:                   Ms K Lieschke of Sparke Helmore Lawyers