D'Cruz and National Disability Insurance Agency (NDIS) - [2025] ARTA 552

D'Cruz and National Disability Insurance Agency (NDIS) [2025] ARTA 552 (12 May 2025)
Applicant/s:  Jean D'Cruz
Respondent:  National Disability Insurance Agency
Tribunal Number:                2022/9183

Tribunal:General Member L Proske
Place:Adelaide
Date:12 May 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 12 May 2025 at 3:00pm
Catchwords
NATIONAL DISABLITY INSURANCE SCHEME – reasonable and necessary supports – home modifications – value for money – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024
Administrative Review Tribunal Act 2024
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) 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 (1979) 46 FLR 409
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Public Trustee of South Australia (as litigation representative for Isherwood) v National
Disability Insurance Agency (No 2) [2023] FCA 852
Secondary Materials
NDIS Guideline – Reasonable and Necessary Supports
NDIS Guideline – Home Modifications
Statement of Reasons

The Applicant (Mr D’Cruz) is 56 years old and lives with his wife (Ms D’Cruz) in a house they purchased in 1995.[1] Mr D’Cruz was diagnosed with a Glioblastoma in 2007, was subsequently diagnosed with radiation induced dementia, and experienced a stroke in 2020 which was linked to his Glioblastoma and associated treatments.[2] He is a participant of the National Disability Insurance Scheme (NDIS).[3]
[1] Exhibit 1 (E1), 18.
[2] E1, 18; Respondent’s Statement of Facts, Issues and Contentions (Respondent’s SFIC), [1].
[3] E1, 2.
Ms D’Cruz is the authorised representative for Mr D’Cruz with respect to engagement with the National Disability Insurance Agency (Respondent).[4] Ms D’Cruz has also made this application to the Tribunal on behalf of Mr D’Cruz.
[4] E1, 48.
BACKGROUND AND JURISDICTION
On 24 September 2022, the Chief Executive Officer of the Respondent approved a statement of participant supports (SOPS) for inclusion in Mr D’Cruz’s plan (original decision).[5] On 27 September 2022, Mr D’Cruz requested that the original decision be reviewed, and on 10 October 2022 a reviewer confirmed the original decision (internal review decision).[6]
[5] E1, 77.
[6] E1, 6, 48.
On 8 November 2022, Mr D’Cruz made an application to the Administrative Appeals Tribunal (AAT) for review of the internal review decision.[7] The AAT had jurisdiction to review the internal review decision under s 103(1) of the National Disability Insurance Scheme Act 2013 (NDIS Act), in combination with s 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act).[8]
[7] E1, 1.
[8] All sections referred to in this Statement of Reasons, including in the footnotes, are sections in the National Disability Insurance Scheme Act 2013 unless otherwise stated.
The Administrative Review Tribunal (ART) was established on 14 October 2024 and replaced the former AAT.[9] Mr D’Cruz’s review application was not finalised before the transition to the ART. Proceedings in the AAT that were not finalised before the transition to the ART must be continued and finalised by the ART.[10] In this Statement of Reasons, the ART will hereafter be referred to as ‘the Tribunal’.
[9] s 8 of the Administrative Review Tribunal Act 2024.
[10] Item 24, Part 5 to Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024.
ISSUE ON REVIEW
The issue on review is whether kitchen modifications requested by Mr D’Cruz are reasonable and necessary and meet the criteria set out in s 34(1).
LEGISLATION AND POLICY
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Amending Act) commenced on 3 October 2024.[11] The Amending Act made a range of amendments to the NDIS Act. Those amendments included, but were not limited to, the insertion of a new definition of ‘NDIS Support’ at s 10, an amendment to s 33(5) which prescribes what is required when deciding whether to approve a SOPS, amendments to s 34 which sets out criteria which must be satisfied in relation to reasonable and necessary supports, and amendments to ss 43 and 44 regarding plan management. Those provisions, as amended, apply to Mr D’Cruz and any approval or variation of his SOPS.[12]
[11] s 2 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Amending Act).
[12] Items 124, 129, 132 of the Amending Act.
The objects of the NDIS Act, and the principles guiding actions under the NDIS Act, are set out in ss 3 and 4. In giving effect to the objectives of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.[13]
[13] s 3(3)(b).
Chapter 3 of the NDIS Act provides the statutory framework for individual plans under which NDIS supports will be funded for participants.[14] Section 17A prescribes principles to which regard must be had when performing functions and exercising powers under Chapter 3 of the NDIS Act. The preparation, variation, reassessment and replacement of a participant’s plan, and the management of funding for supports under a participant’s plan, should so far as reasonably practicable be guided by principles relating to plans set out in s 31. A participant’s plan must include the participant’s statement of goals and aspirations and SOPS.[15]
[14] s 8.
[15] ss 33(1), 33(2).
In deciding whether to approve a SOPS, the CEO or the Tribunal on review, 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;
(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.[16]
[16] s 33(5).
Section 34(1) provides that:
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.
Relevant to this application, the Minister has made the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports Rules) and the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Transitional Rules). These are an important part of the legislative scheme.[17]
[17] McGarrigle v National Disability Insurance Agency [2017] FCA 308, [43].
Guidelines published on the NDIS website contain information about what the Respondent considers when making decisions under the NDIS. These are essentially policy documents. The Guidelines ‘Reasonable and Necessary Supports’ (Supports Guideline), ‘Creating your plan’ (Plan Guideline), ‘What principles do we follow to create your plan?’ (Principles Guideline), and ‘Home Modifications’ (Home Modifications Guideline) are relevant to this application. The Tribunal will take these into account unless there are cogent reasons not to.[18]
[18] Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 420.
EVIDENCE AND SUBMISSIONS
T-Documents filed by the Respondent on 13 December 2022 under s 37 of the AAT Act, and an agreed joint tender bundle filed by the Respondent on 14 February 2025, were received into evidence at the commencement of the hearing and marked ‘Exhibit 1’ and ‘Exhibit 2’ respectively.
The following documents were also received into evidence during the hearing:
a) An email from Ms D’Cruz to Ms Jessica Dinsdale (Ms Dinsdale) dated 5 October 2022 (5:14pm) with an attachment that is described as ‘the Bunnings virtual pic of the old kitchen’, marked ‘Exhibit 3’.
b) An email from Ms D’Cruz to Ms Dinsdale dated 5 October 2022 (5:31pm), marked ‘Exhibit 4’.
The hearing was conducted by Microsoft Teams on 7 and 8 April 2025. Ms D’Cruz and Ms Phi-Van Houston (Ms Houston) gave oral evidence at the hearing.
The Respondent filed a Statement of Facts, Issues and Contentions (Respondent’s SFIC) dated 16 December 2024. The parties also made opening and closing submissions at the hearing.
The Tribunal has considered the written evidence, oral evidence and submissions referred to at paragraphs [14] to [17].
CONSIDERATION
Mr D’Cruz is requesting that his SOPS include funding for kitchen modifications. Those kitchen modifications, which are minor home modifications, have already been completed and involved replacing the kitchen sink and associated tap, replacing existing drawers with spring-loaded drawers, replacing kitchen cupboards with drawers, replacing the kitchen bench, relocating the microwave, replacing a roller-type cupboard that housed the toaster etc with a spring-loaded door, and installation of an inbuilt pull-out bin (kitchen modifications).[19]
[19] Home Modifications Guideline, 10-11; Exhibit 2 (E2), 1-2, 4, 22-24,
The Respondent contends the kitchen modifications do not meet the criteria in s 34(1).[20] Specifically, the Respondent submits the kitchen modifications do not represent value for money and are not an NDIS support for Mr D’Cruz.[21] The Respondent also contends that particular components within the kitchen modifications are not, or are unlikely to be, effective and beneficial for Mr D’Cruz.[22]
[20] Respondent’s SFIC, [33]-[34], [42], [48]-[49], [51]-[52], [55]-56]; Respondent’s closing submissions.
[21] ss 34(1)(c), 34(1)(f); Respondent’s SFIC, [33]-[34], [42], [48]-[49], [51]-[52], [55]-[56]; Respondent’s opening submissions; Respondent’s closing submissions.
[22] Respondent’s SFIC, [34], [42], [48].
The Tribunal must consider whether the kitchen modifications are a reasonable and necessary support and whether it is satisfied as to each of the six criteria in s 34(1) in respect of the support.[23]
[23] Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852, [29].
The Full Court of the Federal Court considered the phrase ‘reasonable and necessary support’ in National Disability Insurance Agency v WRMF [2020] FCAFC 79, stating:
‘the phrase connotes supports which meet a threshold which justifies – by reference to the context, objects and guiding principles of the Act and the facts of the case – the expenditure of public funds for that support, for a particular participant … [T]he phrase needs to be understood taking into account what has qualified a person as a participant, and the links between a person’s impairment and their full participation in the community…’[24]
[24] National Disability Insurance Agency v WRMF [2020] FCAFC 79, [149]-[151].
Ms D’Cruz
Ms D’Cruz gave evidence that Mr D’Cruz has always used the kitchen and enjoyed cooking, but the old kitchen was unsuitable for him, especially after his stroke.[25] Specifically, Ms D’Cruz’s evidence is to the effect:
a)    The old tap was hard for Ms D’Cruz to use, especially due to his left side deficit.
b)    The old cutlery and utensil drawers were not on rollers which made them difficult for Mr D’Cruz to pull out, and they were damaged from when Mr D’Cruz had gripped them during a seizure.
c)    The old cupboards were inaccessible for Mr D’Cruz. He struggled to get himself a glass, cup, plate, pot or pan; was having falls; and bending down to get things was problematic.
d)    The height of the old bench was not an issue for Mr D’Cruz, it needed changing because the cupboards were changed.
e)    The position of the microwave was too high for Mr Cruz to use safely.
f)     The toaster, rice cooker etc were stored in a roller-type cupboard which Mr D’Cruz needed help to operate.
g)    The pedal on the old bin was difficult for Mr D’Cruz to activate. He was having falls because of balance issues and would slip on food he had dropped beside the bin.[26]
[25] Ms D’Cruz’s oral evidence.
[26] E2, 1-2; 35, 72
Ms D’Cruz gave evidence that she obtained several quotes for kitchen modifications, some as high as $40,000.00.[27] The quote from Bunnings, which was in the end what was implemented, was competitive, reasonable and met Mr D’Cruz’s needs.[28] Ms D’Cruz has filed a quote from Bunnings which relates to a Kaboodle Kitchen that totals $6,200.67; and invoices from Redline Kitchen & Bathroom Renos which relate to the removal and installation of the kitchen cabinetry that total $3,380.00, LSD Electrics which relate to reconnection appliances and installing a power point that total $375.75, and City Plumbing & Gas which relates to the kitchen renovation that totals $770.00.[29]
[27] Ms D’Cruz’s oral evidence.
[28] Ms D’Cruz’s oral evidence.
[29] E1, 32-34, 36-38, 40; E2, 31-34, 63-65.
With respect to whether things were trialled or considered as an alternative to the kitchen modifications, Ms D’Cruz gave evidence that Mr D’Cruz’s father did buy a small bin from Ikea as an alternative to the old bin, and he also installed ‘roller things’ in the kitchen.[30] With respect to the latter, they did not work because of Mr D’Cruz’s difficulty with grip – he sometimes had trouble pulling them out, whilst at other times he could pull them out but he could not push them back in and they became a tripping hazard.[31] When asked in cross-examination whether the microwave could have been moved to the benchtop rather than repositioned within the tower, Ms D’Cruz gave evidence to the effect that the microwave could fit on the bench if other more important things were removed from there, but that was not a practical solution.[32] Ms D’Cruz suggested they did not change the kitchen too much, so it remained familiar to and comfortable for Mr D’Cruz.[33]
[30] Ms D’Cruz’s oral evidence.
[31] Ms D’Cruz’s oral evidence.
[32] Ms D’Cruz’s oral evidence.
[33] Ms D’Cruz’s oral evidence.
With respect to the outcome of the kitchen modifications, Ms D’Cruz gave evidence it is gratifying to see Mr D’Cruz’s obvious relief in being able to do things independently in the modified kitchen as he is a proud man and too young to be dependent on others for everything.[34] In oral evidence Ms D’Cruz stated the kitchen modifications have greatly increased Mr D’Cruz’s independence, prevented falls from trying to bend over to get crockery, and prevented accidents involving hot food due to the microwave height.[35] Ms D’Cruz’s evidence is that she never suggested there is a height difference between the old and the new benchtop.[36]
[34] E2, 2.
[35] Ms D’Cruz’s oral evidence.
[36] E2, 72.
At the hearing, the Tribunal raised with Ms D’Cruz that it did not appear on the material before it that an occupational therapist had assessed the old kitchen before the kitchen modifications were completed. Ms D’Cruz gave oral evidence to the effect:
a)    Ms Karen Little (Ms Little), an occupational therapist from MSWA, did attend the home, and Ms D’Cruz asked her to consider what bathroom and kitchen modifications were required. Ms Little thereafter provided a Functional Assessment for Complex Home Modifications that addressed issues arising for Mr D’Cruz in the bathrooms.[37] Ms Little did not come back to Ms D’Cruz regarding the kitchen.
b)    Another occupational therapist named ‘Jasmine’ came to the home before Ms Little. Jasmine went through the home and Ms D’Cruz told her what issues Mr D’Cruz was having in the kitchen and bathrooms. She could not recall whether Jasmine observed Mr D’Cruz in the kitchen. She had understood a formal assessment would be completed after this initial discussion, however that never took place.
c)    There is no assessment in evidence or available from an occupational therapist who saw the old kitchen before the kitchen modifications were completed. This was not for lack of trying.
[37] E2, 18.
Jessica Dinsdale, occupational therapist
In evidence are 2 reports and 2 letters prepared by Ms Jessica Dinsdale (Ms Dinsdale), an occupational therapist.[38] The dates of those documents range from 22 August 2022 until 18 October 2024. Ms Dinsdale’s evidence is that the kitchen modifications were completed before she met or provided occupational therapy support to Mr D’Cruz.[39]
[38] E1, 41; E2, 3, 22, 75.
[39] E2, 4, 22.
With respect to Mr D’Cruz’s impairments, Ms Dinsdale recorded that Mr and Ms D’Cruz reported to her that Mr D’Cruz experiences impaired balance and gait pattern with left foot drop; left side weakness in upper and lower limbs; left side neglect; reduced hand strength and fine motor skills; cognitive difficulties; reduced physical tolerance; fatigue; and ‘groundhog day syndrome’ where Mr D’Cruz repeats the same activities every day, thinking it is the day before, or forgetting he has already completed a task.[40] Ms Dinsdale reported that Mr D’Cruz moves with a slow gait and tends to swing his left leg wide, has left side foot drop which can become more prominent with fatigue, has trouble bending and reaching down, experiences fatigue and quickly tires after activity, and is a high falls risk.[41]
[40] E1, 41; E2, 22, 80.
[41] E1, 42, 43, 45.
With respect to the old kitchen, Ms Dinsdale’s evidence is that it was reported to her by Mr and Ms D’Cruz that:
a)    Before the kitchen modifications, Mr D’Cruz could not prepare himself meals, was dropping items, and was at risk of scalds due to the position of the microwave and benchtops.[42]
b)    The kitchen bench height was unsuitable; the tap and sink were difficult for Mr D’Cruz to use due to left side deficit, and his difficulties using the sink resulted in several glasses and dishes being broken; bending to access cupboards increased Mr D’Cruz’s risk of falls and loss of balance; the cutlery drawers were badly damaged from Mr D’Cruz’s tremor and movements; the microwave was too high for Mr D’Cruz to safely retrieve hot items; and Mr D’Cruz could not safely and independently use the bin.[43]
c)    The lack of accessibility in the kitchen caused Mr D’Cruz a lot of frustration and agitation as he was reliant on his family to assist him with basic tasks.[44]
d)    They felt it necessary to proceed with the kitchen modifications due to Mr D’Cruz’s high falls risk, restricted independence and activity participation, and the impact on his health and wellbeing.[45]
[42] E1, 43; E2, 24.
[43] E2, 4, 23, 24, 82, 83.
[44] E2, 4.
[45] E2, 3.

Ms Dinsdale also reported that the old kitchen tap was a flick mixer that moved in the horizontal plane; she observed Mr D’Cruz use similar style taps that move in this direction; and it is likely he could have experienced difficulty when needing to operate the tap from a distance due to the physical barrier of the sink and bench top.[46]
[46] E2, 82.
Ms Dinsdale reported that she assessed Mr D’Cruz on 2 September 2024 within the modified kitchen, and observed the following:
a)    He appeared to be familiar with the layout of the kitchen and where frequently used items were located.[47]
b)    He is right hand dominant.[48]
c)    He independently used the flick lever mixer adjusting the temperature of the water and placed used dishes into the sink without prompting.[49]
d)    He independently opened the drawers which stored plates, glasses and cups; and independently opened the cupboard under the kitchen sink to use the rubbish bin.[50] He used the bin independently without prompting.
e)    He independently completed each of the steps required to make himself a cup of coffee and carried the mug of coffee to the dining table.[51]
f)     He independently completed each of the steps required to make himself a fried egg on toast.[52]
[47] E2, 82.
[48] E2, 80.
[49] E2, 81.
[50] E2, 81.
[51] E2, 81.
[52] E2, 81.
Ms Dinsdale also reported that with respect to the modified kitchen, Mr and Ms D’Cruz informed her:
a) Mr D’Cruz typically prepares himself breakfast, and for lunch he will reheat pre-prepared meals.[53] Mr D’Cruz can prepare hot drinks for himself and others. Ms D’Cruz is encouraging Mr D’Cruz to assist with some meal preparation tasks, however he requires prompting and assistance when preparing dinners.[54]
b) The replacement drawers are easier for Mr D’Cruz to access as he can visually see what is stored in them and can access them from a safer standing point, with increased stability and balance.[55] Mr D’Cruz is able to access items with increased ease and independence, and the flip-up top cabinet has assisted with storing and retrieving items such as the toaster.[56] The newly installed benchtop is reportedly better accessed by Mr D’Cruz, allowing him to adopt a better standing position and increased standing tolerance at the bench.[57] The replacement tap is reported to be better managed by Mr D'Cruz, and the new sink material helps to reduce accidental breakage.[58]
[53] E2, 4, 82.
[54] E2, 4, 82.
[55] E2, 23.
[56] E2, 23.
[57] E2, 23.
[58] E2, 24.
Based on information provided to her by Mr and Ms D’Cruz regarding the old kitchen’s set-up and accessibility, Ms Dinsdale opined the kitchen modifications appear to have significant functional benefits for Mr D’Cruz.[59]
[59] E2, 4.
Ms Dinsdale reported that the kitchen modifications cost $11,680.00.[60] With respect whether there were cheaper alternatives to the kitchen modifications that would have addressed the accessibility and safety issues experienced by Mr D’Cruz in the old kitchen, Ms Dinsdale reported:
a)    Marking temperature settings on the tap with a permanent marker would not have worked, as she understood from speaking with Mr and Ms D’Cruz that Mr D’Cruz also had difficulty adjusting the water flow and amount.[61] An extended lever addition to the tap would have been ineffective due to the position of the tap.[62]
b)    Unbreakable dinnerware and glasses were not a practical alternative to replacing the sink, as Mr D’Cruz lives in a family home hence excessive amounts of dinnerware and glassware would have had to be replaced.[63]
c)    Ms D’Cruz reported that a small container or compost bin near the sink, instead of replacing the bin, would not have been culturally appropriate for the family.[64] The new bin will likely last longer than cheaper equivalents.[65]
d)    It was reported to her that cupboard shelves could not have been adapted to pull out shelves/drawers.[66] Items like stacked plates are stored in the new drawers, and these are too heavy for slide shelves.[67] The new drawers allow Mr D’Cruz to pull them out completely giving him full view of what is stored in them, and rearranging items on cupboard shelves would not have achieved the same outcome.[68]
e)    The old kitchen bench could not be reused due to the disruption that the kitchen modification caused.[69]
[60] E2, 4.
[61] E2, 82.
[62] E2, 82.
[63] E2, 83.
[64] E2, 83.
[65] E2, 83.
[66] E2, 83.
[67] E2, 83.
[68] E2, 83.
[69] E2, 84.
Ms Dinsdale reported that Mr D’Cruz continues to access 2 hours of meal preparation per week, however this is to assist with preparing frozen meals, and is reduced compared to what may have been required but for the kitchen modifications.[70]
[70] E2, 24-25.
Phi-Van Houston, occupational therapist
The Respondent engaged Ms Houston to prepare 2 reports on the papers.[71] Ms Houston stated that whilst more details would have helped, she was able to piece together what she believed to be the old kitchen with the information provided to her, so that she could answer questions put to her by the Respondent.[72]
[71] E2, 90, 108.
[72] E2, 94.
In her report dated 27 May 2024, Ms Houston reported:
a)    She was unable to find disability related reasons for the full kitchen to be pulled out and a new one installed, as there are alternative solutions available to address difficulties that Mr D’Cruz may have had in the old kitchen.[73]
b)    If difficulty using the tap related to balance, a long lever mixer tap could reduce the need to overextend to operate the lever; and if an issue was knowing which direction to move the tap for hot/cold then a lever tap with a clear indicator would be suitable, though this could be done with a permanent marker.[74] There is definitely no clinical reason for the double sink to be replaced, as there are alternative options, and there are also cheaper lever taps.[75] She would recommend the family gradually change over their dinnerware and glassware to light weight and less breakable ones, which are available in supermarkets.[76]
c)    With respect to Mr D’Cruz having difficulty reaching and bending to get pots and pans from the cupboards, installation of the chrome pull-out drawer organiser from Kmart would have been appropriate, given the amount of food preparation/cooking by Mr D’Cruz would be minimal.[77]
d)    As an alternative to replacing the cupboards with drawers, items in cupboards could be rearranged with items frequently used by Mr D’Cruz located closer to the front and/or slide out shelves could be installed.[78] The latter cost around $29 at Kmart.[79] The last and more expensive option is to change the cupboard doors and hardware to convert some of the cupboards into drawers.[80]
e)    Soft close drawer runners/slides which the new drawers have could have been purchased to replace existing ones without having to completely change the drawers themselves.[81]
f)     There was no reason to change the kitchen benchtop.[82] There is only 3mm height difference between the old and new benchtop.[83]
g)    The location of the microwave was not a safe height for anyone, therefore is not a disability specific need.[84]
h)    As an alternative to relacing the bin, a container or small compost bin could be placed on the bench near the kitchen sink, and/or an under bench pull out bin could be purchased from Kmart or Target for $39.00.[85]
i)   The recommendations referred to above would enable Mr D’Cruz to undertake tasks that have been reported to be undertaken by him in the new kitchen and would cost at most one third of what the kitchen modifications cost as there were items that were replaced which are not disability specific and there were lower cost items that would achieve the same outcome.[86]
[73] E2, 96.
[74] E2, 96.
[75] E2, 96, 103.
[76] E2, 97, 102.
[77] E2, 99.
[78] E2, 97-98, 101.
[79] E2, 98.
[80] E2, 98.
[81] E2, 99, 103.
[82] E2, 98, 103.
[83] E2, 98.
[84] E2, 101, 102.
[85] E2, 97, 102.
[86] E2, 100.
Further, Ms Houston reported that with respect to the old kitchen, the only disability specific modifications she would have recommended include changing the runners/tracks for existing drawers, supply and install an under-bench pull out bin, supply ad install chrome pull out drawer organisers, and purchasing unbreakable dinnerware and cups for Mr D’Cruz’s use.[87]
[87] E2, 100-101.
Ms Houston reviewed Ms Dinsdale’s report dated 18 October 2024, and provided a supplementary report dated 18 November 2024.[88] Ms Houston reported that the opinions expressed in her report dated 27 May 2024 had not changed in light of Ms Dinsdale’s report.[89] Ms Houston also reported:
a)    She held concerns about the new location of the microwave as there is no bench surface for the hot food from the microwave to be set down when it is removed, creating a risk of scalding.[90]
b)    The old cupboards with shelves could have had the pull-out drawer sliding organiser installed to provide essentially the same feature as having a drawer.[91] Whilst there will be limitation on how many dishes could be stacked on a slide organiser, it would be enough for Mr D’Cruz to have items that he needs on them due to his disability.[92] With the new drawers, instead of cupboards, Mr D’Cruz still has to bend down if he is accessing the bottom drawer so the reality is that if it is not safe for him to bend to get things out of a cupboard shelf, even if the items are closer at the front, then he would not be able to retrieve items from the second/bottom drawer.[93]
c)    She was unsure of how Mr D’Cruz would have difficulty with the old flick mixer tap and not the new one.[94]
d)    The new sink is made from a composite material, and a reported disadvantage of composite granite sinks is that they are hard enough to break glassware when dropped on them.[95] This seems contrary to the claim that the new sink helps to reduce accidental breakage.[96] Further, 2 x 16 piece dinner sets would be suitable for a 4 person house, and those 2 sets could be purchased for $280.00.[97] Similar such options are available to replace glasses and mugs.[98] In combination these would cost less than the sink that has been purchased and installed as part of the kitchen modifications.[99]
e)    It does not necessarily follow that a cheaper bin to the new bin would be inferior.[100]
[88] E2, 108.
[89] E1, 109.
[90] E2, 110.
[91] E2, 110.
[92] E2, 118.
[93] E2, 119.
[94] E2, 113.
[95] E2, 114.
[96] E2, 114.
[97] E2, 114.
[98] E2, 116.
[99] E2, 116.
[100] E2, 117.
In oral evidence, Ms Houston explained that when she does an assessment, she looks at whether or not there are things that can be modified or changed, such as a different set up within the existing environment, as a first step rather than make a recommendation; and based on the information that was available to her, she thought there were things that could have been considered and put in place before completing the kitchen modifications. Ms Houston also confirmed in evidence that the slide out shelves she had recommended come in all shapes and sizes. When asked whether she considered her not having observed Mr D’Cruz limits, diminishes or impacts the opinions she has expressed, Ms Houston gave evidence to the effect it did not and that she tried to replicate or visualise the old kitchen layout, visualised a person with Mr D’Cruz’s limited functions, came up with scenarios, and then came up with solutions. Whilst Ms Houston said it would have been great to see Mr D’Cruz in person, the problem is that you need to see him in the old kitchen, rather than the modified kitchen, as there will be a difference.[101]
[101] Ms Houston’s oral evidence.
When asked at the hearing whether she had any comment to make as to the methodology that Ms Dinsdale used in preparing her reports and letters, Ms Houston gave evidence to the effect that a lot of the information relied on by Ms Dinsdale was what was reported to her by Mr and Ms D’Cruz, and whilst getting information from the person being assessed or their family is important, that is but one component of the information needed to come to an opinion and make recommendations. When asked whether she considered Ms Dinsdale’s reliance on information reported to her by Mr and Ms D’Cruz was a reasonable basis to form her opinion on, Ms Houston gave evidence she would generally do a little bit more investigation and cross referencing of information before coming to an opinion and making a recommendation.
It is not in contest between the parties that the kitchen modifications meet the requirements in ss 34(1)(aa), 34(1)(a) and 34(1)(b).
The Tribunal broadly accepts Ms D’Cruz’s evidence that Mr D’Cruz had trouble accessing the old kitchen and using that independently, particularly after he suffered a stroke. Specifically, the Tribunal accepts Mr D’Cruz had trouble pulling out the cutlery and utensil drawers, accessing things in cupboards, safely removing heated items from the microwave, and independently and safely using the old bin. The Tribunal is persuaded on the material before it that those difficulties arose because of Mr D’Cruz’s physical impairments, in relation to which he meets the disability requirements. The Tribunal is satisfied the kitchen modifications are necessary to address needs of Mr D’Cruz arising from an impairment in relation to which he meets the disability requirements. Accordingly, the requirement in s 34(1)(aa) is met.
The Tribunal accepts Ms Dinsdale’s evidence at paragraph [32] in relation to what Mr D’Cruz can do within the modified kitchen, noting that Ms Dinsdale has had the opportunity to directly observe Mr D’Cruz in that environment. Based on that evidence, and that provided by Ms D’Cruz, the Tribunal broadly accepts that the kitchen modifications have made the kitchen more accessible for Mr D’Cruz, promoting his safety and independence with getting drinks, reheating pre-prepared meals, basic meal preparation, and using the bin. The Tribunal is satisfied the kitchen modifications will assist Mr D’Cruz to pursue the goals, objectives and aspirations included in his statement of participant goals and aspirations, which include him being more independent in all aspects of his personal care, participating in activities he likes such as cooking, being able to move safely in his home, and maintaining a clean home and environment.[102] Accordingly, the requirement in s 34(1)(a) is met.
[102] E1, 83.
The Tribunal also accepts Ms D’Cruz’s evidence that cooking is something Mr D’Cruz enjoys, and his ability to now access the kitchen and complete simple kitchen related tasks independently has been a relief for him. The Tribunal is persuaded that by assisting Mr D’Cruz to undertake activities he enjoys like simple meal preparation and making himself and his family a cup of coffee or the like, the kitchen modifications have facilitated his social participation. The Tribunal is satisfied the kitchen modifications will assist Mr D’Cruz to undertake activities, so as to facilitate his social and economic participation. Accordingly, the requirement in s 34(1)(b) is met.
Section 34(1)(c) requires that 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. Rule 3.1 of the Supports Rules provides:
3.1In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a)whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(c)whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d)for supports that involve the provision of equipment or modifications:
(i) the comparative cost of purchasing or leasing the equipment or modifications; and
(ii) whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e)whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f)whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
As has already been noted, the Respondent contends the home modifications do not meet this requirement.
On the basis of evidence referred to paragraphs [24] and [35], the Tribunal accepts that the kitchen modifications cost approximately $11,680.00. There is conflicting evidence before the Tribunal as to whether there are comparable supports which would achieve the same outcome at a substantially lower cost than the kitchen modifications. In summary:
a)    Ms D’Cruz’s evidence is that a couple of alternative solutions were trialled, but they were ineffective; and whilst the microwave could fit on the bench more important items would have to be removed.
b)    Ms Houston’s evidence is that there were alternative solutions available to address difficulties Mr D’Cruz may have had in the old kitchen, and those would have enabled Mr D’Cruz to undertake tasks that have been reported to be undertaken by him in the modified kitchen. Ms Houston opined those alternative solutions would cost at most one third of what the kitchen modifications cost.
c)    Ms Dinsdale’s evidence is to the effect that the alternative solutions recommended by Ms Houston would have been ineffective or impracticable.
The Tribunal accepts Ms D’Cruz’s evidence that despite her best efforts, no occupational therapist assessed Mr D’Cruz in the old kitchen and made recommendations as to how that might be made accessible for Mr D’Cruz.
Unlike Ms Houston who completed her assessment on the papers, Ms Dinsdale did observe Mr D’Cruz in the modified kitchen. However, within the context of the Tribunal’s consideration of the matter prescribed in r 3.1(a), the Tribunal is not persuaded that this of itself is reason to give more weight to Ms Dinsdale’s evidence. With respect to this, the Tribunal was persuaded by Ms Houston’s evidence that an occupational therapist needs to see Mr D’Cruz in the old kitchen, rather than in the modified kitchen, as there will be a difference.
Ms Houston’s explanation regarding the process she underwent to form the opinions and make the recommendations contained within her reports is outlined in paragraph [41]. Throughout her reports Ms Houston has very clearly referenced the objective material on which she relied to piece together her understanding of the old kitchen; and her reporting makes clear she brought an independent mind to the task of identifying the difficulties a person with Mr D’Cruz’s reported impairments would have experienced in the old kitchen and how those could be addressed. Whilst Ms Dinsdale’s report dated 18 October 2024 refers to her having seen photos of the old kitchen and reflects some engagement with those, her reporting does not reveal the extent to which she methodically pieced together an understanding of the old kitchen, or what she relied upon to do that.[103] It is also unclear on the face of Ms Dinsdale’s reporting whether, and if so the extent to which, she gave objective consideration to what was reported to her by Mr and Ms D’Cruz. For these reasons, the Tribunal considers Ms Houston’s understanding of the old kitchen and the difficulties Mr D’Cruz experienced within that is more objective and precise than Ms Dinsdale’s, and that her opinions and recommendations have been informed by that.
[103] E2, 82, 83.

Ms Houston opined slide out shelves could have been installed in the old cupboards. Ms Dinsdale’s evidence is that it was reported to her the shelves in the cupboards could not have been adapted. Ms Dinsdale’s own opinion in relation to this is left to inference. For this reason, the Tribunal prefers Ms Houston’s evidence and finds that rather than replacing the old cupboards with drawers, slide out shelves could have been installed in the old cupboards. In any event, even had this not been an option, it is apparent on the material before the Tribunal that there are kitchen related tasks and activities that Mr D’Cruz usually requires assistance with or is unable to perform even with modifications. In circumstances where with modifications Mr D’Cruz is reportedly able to get drink, reheat pre-prepared meals and complete basic meal preparation, but cannot complete more complex meal preparation, the Tribunal is not persuaded that every cupboard within the old kitchen needed to be converted to a drawer for the old kitchen to be made accessible for Mr D’Cruz.
Ms Houston opined that rather than replacing the old cutlery drawers, soft close drawer runners/slides could have been installed on the old drawers. Ms Dinsdale’s evidence does not address this recommendation, other than to state there were limited drawers in the old kitchen. On the material before it, the Tribunal accepts soft close draw runners/slides could have been installed on the old drawers.
The Tribunal is persuaded on the material before it that replacing dinnerware and drinkware with unbreakable alternatives would have addressed the issue of Mr D’Cruz breaking items in the old sink. The Tribunal accepts and gives weight to Ms Houston’s evidence that 2 x 16-piece dinner sets would be suitable for a 4-person house and those 2 sets could be purchased for $280.00; and considers an equivalent amount of unbreakable drinkware would be sufficient for Mr D’Cruz and his family. In those circumstances, the Tribunal does not accept this option would have required excessive amounts of dinnerware and glassware to have been replaced.
Ms Houston’s evidence is that it is unclear why Mr D’Cruz would have had difficulty using the old tap but not the new one. In circumstances where Mr D’Cruz has left sided weakness and is right hand dominant, it is unclear to the Tribunal why he would have had trouble using the old tap unless that trouble was balance related. Ms Houston opined that if it were the case that Mr D’Cruz’s difficulty using the tap was related to balance, a long lever mixer tap could reduce the need to overextend to operate the lever. Ms Dinsdale’s evidence is that an extended lever addition to the tap would have been ineffective, however the extent of her explanation in relation to this relates to the position of the tap. In the absence of any further explanation, and noting the Tribunal’s observations and findings at paragraph [52], the Tribunal prefers Ms Houston’s evidence in relation to this and finds that a long lever mixer tap would have addressed the difficulty Mr D’Cruz experienced using the old tap. In any event, Ms Houston also reported that there are cheaper lever taps to that which was installed as part of the kitchen modifications and provided a clear example of such an alternative. The Tribunal accepts that evidence.
The Tribunal notes the concern flagged by Ms Houston that there is no bench near the tower where the microwave was in the old kitchen and has been repositioned within the modified kitchen for hot food to be set down when it is taken from the microwave, and accepts Ms D’Cruz’s oral evidence that the microwave would fit on the bench. Given the length of the bench, the Tribunal is not persuaded placing the microwave on the bench would necessitate removing other important things.[104] In any event, even had that not been so, given the risk of scalding arising from no bench being near the microwave in the old or modified kitchen, the Tribunal is not persuaded that risk is outweighed by any issue that may arise from moving other important things from the bench.
[104] E2, 61, 64.
The Tribunal is also persuaded on the material before it that cheaper under bench pullout bins to that which was installed as part of the kitchen modifications are available, and the mere fact those alternative options are cheaper does not of itself mean they will not be durable.
Ms Houston’s evidence, which the Tribunal accepts, is that the options referred to in paragraphs [53] to [58] would have enabled Mr D’Cruz to undertake the tasks that have been reported to be undertaken by him in the new kitchen and would have cost no more than one third of the cost of the kitchen modifications. That evidence is corroborated by screen shots included within Ms Houston’s reports of such options and what they cost. For these reasons, the Tribunal finds there are comparable supports which would achieve the same outcome at a substantially lower cost than the kitchen modifications.[105]
[105] r 3.1(a) of the Supports Rules.
Whilst Ms Dinsdale’s evidence is to the effect that Mr and Ms D’Cruz reported to her that the height of the old kitchen bench was unsuitable for Mr D’Cruz and the new kitchen bench is more accessible for him, the Tribunal prefers and accepts Ms D’Cruz’s direct evidence that the old kitchen bench was not an issue for Mr D’Cruz, it was only replaced consequent upon the cupboard modification, and she never suggested the bench height changed. The Tribunal also accepts Ms Houston’s evidence that there is only a 3mm height difference between the old and new benchtop, noting her evidence with respect to this was informed by measurements recorded on plans of both the old kitchen and the kitchen modifications.[106] The Tribunal is not persuaded on the material before it that a 3mm height difference would improve accessibility for Ms D’Cruz.
[106] E2, 44, 45, 61, 98.
Ms D’Cruz reported to Ms Dinsdale that on several occasions dishes and glasses were broken in the old sink due to Mr D’Cruz’s tendency to drop items into the sink with excessive force.[107] Given the nature of Mr D’Cruz’s impairments, the Tribunal accepts that was so. However, the Tribunal is not persuaded that the new sink is any less likely to result in breakages than the old sink. In making this finding, the Tribunal gives some weight to Ms Houston’s evidence that a reported disadvantage of composite granite is that it is hard enough to break glassware dropped onto it.
[107] E2, 83.
With the exception of the benchtop and sink, the Tribunal is persuaded the kitchen modifications have made the kitchen more accessible for Mr D’Cruz, promoting his safety and independence with getting drinks, reheating pre-prepared meals, and basic meal preparation. For this reason, excluding the benchtop and the sink, the Tribunal accepts there is evidence that the kitchen modifications will substantially improve the life stage outcomes for, and be of long-term benefit to, Mr D’Cruz.[108]
[108] r 3.1(b) of the Supports Rules.
The Tribunal accepts the kitchen modifications have reduced Mr D’Cruz’s reliance on Ms D’Cruz to get things from cupboards, get drinks, make breakfast, and reheat meals. Ms Dinsdale’s evidence, which the Tribunal broadly accepts, is that this helped to reduce Ms D’Cruz’s sense of carer burnout and fatigue. Ms Dinsdale reported that Mr D’Cruz continues to access 2 hours of meal preparation per week to assist with preparing frozen meals and opined this is reduced compared to what may have been required but for the kitchen modifications. Whilst the Tribunal broadly accepts that without the kitchen modifications Mr D’Cruz may have required increased funding for formal support, it is not persuaded on the material before it that the kitchen modifications are likely to reduce the cost of the funding of supports for Mr D’Cruz in the long term.[109] In any event, even had the Tribunal been persuaded of this, the Tribunal considers the comparable supports referred to in paragraphs [53] to [58] would have likely resulted in an equivalent reduction given the Tribunal has already found that those comparable supports would have enabled Mr D’Cruz to undertake the tasks that have been reported to be undertaken by him in the modified kitchen.
[109] r 3.1(c) of the Supports Rules.
The Tribunal notes that The Tribunal has accepted that the kitchen modifications have increased Mr D’Cruz’s independence with kitchen related tasks and activities.[110] However, on the material before the Tribunal it does not appear that Mr D’Cruz’s need for formal support has decreased since the kitchen modifications were completed. The Tribunal is not therefore persuaded that the kitchen modifications will reduce Mr D’Cruz’s need for other kinds of support.[111]
[110] r 3.1(f) of the Supports Rules.
[111] r 3.1(f) of the Supports Rules.
Whilst the support in issue involves the provision of modifications, they are not something that could have been leased.[112] Nor does the material suggest there are any expected changes in technology or Mr D’Cruz’s circumstances in the short term that would make it inappropriate to fund the kitchen modifications.[113] There is no evidence before the Tribunal suggesting there are supports of the same kind that are provided in the area in which Mr D’Cruz resides.[114]
[112] r 3.1(d) of the Supports Rules.
[113] r 3.1(d) of the Supports Rules.
[114] r 3.1(e) of the Supports Rules.
Mindful of the need to ensure the financial sustainability of the NDIS, the Tribunal has given significant weight to its conclusions in relation to those matters prescribed in rr 3.1(a), 3.1(c), and 3.1(f).[115] The Tribunal has given some weight to its conclusion in relation to the matter prescribed in r 3.1(b). Having considered each of the matters referred to in r 3.1 of the Supports Rules, and the weight to be given to those, the Tribunal is not satisfied the kitchen modifications represent value for money in that the costs of those are reasonable, relative to both the benefits achieved and the cost of alternative support. It follows that the kitchen modifications do not meet the requirement in s 34(1)(c) and are therefore not a reasonable and necessary support that will be funded in Mr D’Cruz’s SOPS.
[115] ss 3(3)(b), 4(17).
DECISION
The Tribunal affirms the decision under review.