Deayton and National Disability Insurance Agency - [2024] AATA 3310

Deayton and National Disability Insurance Agency [2024] AATA 3310 (16 September 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number:2023/5367
Re:Michael Deayton
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member K Parker
Date:16 September 2024
Place:Melbourne

The Tribunal sets aside the decision under review and remits this matter to the Respondent with a direction that a new statement of participant supports (‘SOPS’) be approved for the Applicant, Mr Michael Deayton, which contains the following provisions:
1.a provision to specify that the new SOPS is to be reassessed by the Respondent 12 months after the date upon which it is approved (‘Reassessment Date’);
2.a provision to approve funding for Mr Deayton in respect of the following supports:

a.as a “Stated Support”, the cost of excessive electricity usage by Mr Deayton resulting from the use of equipment by reason of his disability, being an amount equivalent to the total monthly amounts charged to Mr Deayton (that is, after any Victorian-based concessions have been applied and deductions made, as recorded on those bills) over the previous 12-month period, in respect of the electricity usage in excess of 7.34 kWh per day, and minus any lump sum payment made to Mr Deayton by the Commonwealth for an Essential Medical Equipment Payment;
b.as a “Stated Support”, funding for 56 hours of physiotherapy (which includes four hours to prepare a written progress report to be lodged with the NDIA before the Reassessment Date);

c.as a “Stated Support”, funding for 27 hours of remedial massage therapy (which includes one hour to prepare a written progress report to be lodged with the NDIA before the Reassessment Date);

d.as a “Stated Support”, funding for 28 hours of occupational therapy (which includes four hours to prepare a written progress report to be lodged with the NDIA before the Reassessment Date);

e.as a “Stated Support”, the cost per annum of providing Mr Deayton with access to Foxtel sports channels being an amount equivalent to 50% of the total amount Mr Deayton is currently charged by Foxtel for his current yearly “full package” Foxtel subscription;

f.as a “Stated Support”, $800 per annum to fund two economy return airfares for a support worker to accompany Mr Deayton as he travels to one Powerchair championship per annum (whether that be hockey or football), and to accompany him when he returns home after the event;

g.as a “Stated Support”, the following costs associated with providing a local support worker to assist Mr Deayton at his temporary accommodation while attending one Powerchair event per annum (likely to take place from a Thursday to a Monday inclusive, based on the previous programs for such events):

i.27 hours for one support worker at the daytime weekday rate to provide assistance to Mr Deayton in respect of the Thursday, Friday, and Monday;
ii.16 hours for one support worker at the daytime weekend rate to provide assistance in respect of the Saturday and Sunday;

h.as a “Stated Support”, $350 for the cost of temporary hire of a hoist and commode including delivery and collection at the accommodation where Mr Deayton will be staying when attending one Powerchair event per annum;

i.as a “Stated Support”, transport supports in the amount of $7,306 per annum to be paid to Mr Deayton on an ongoing fortnightly basis (as from 9 September 2022, as agreed between the Parties);

j.as a “Stated Support”, the cost of Mr Deayton’s annual subscription to RACV Roadside Assist for a Wheelchair being $25.50 per annum (as from 9 September 2022, as agreed between the Parties); and
k.as a “Stated Support” (and subject to the NDIA obtaining a quote), the costs associated with the registration and attendance by Mr Deayton within the next three months, to attend a training course in respect of the self-management of a NDIS plan so that he may better understand a participant’s obligations under s 46 of the NDIS Act when doing so; and

l.replication, on a pro-rata basis, of all other existing supports in Mr Deayton’s current SOPS (except for any one-off supports where the funding for such support has already been expended, and except for the previous funding approved for physiotherapy and “other professional” which has been replaced by the funding under paragraph [2b], [2c] and [2d] above), minus his current funding for support worker assistance for a period of five days as this will not be required during the five-day period when Mr Deayton will be in attendance at one Powerchair championship per annum, at which time he will have access to the supports referred to in paragraph [2.g] above;

3.a provision specifying that the funding in this NDIS plan is to be “self-managed”; and
4.a provision specifying that it will be open to the NDIA to request invoices from Mr Deayton over the duration of this NDIS plan, to audit the expenditure by him to ensure it aligns with his NDIS plan. If there are found to be any irregularities or that funds are spent on supports, which are not identified in the new SOPS or which the NDIA has advised Mr Deayton are not “reasonable and necessary supports”, it will be open to the NDIA to undertake an unscheduled plan review under s 48 of the NDIS Act and to approve a new SOPS for Mr Deayton which may change the specifications in relation to being “plan managed” or “Agency-managed”.

...............[SGD]..............
Senior Member K Parker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – adult participant – progressive genetic condition - physical impairments – limited mobility – review of supports – excess electricity usage – ongoing physiotherapy and massage therapy – component of Foxtel subscription to view sporting events – supports to enable the Applicant to attend and participate in interstate Powerchair events – plan duration – whether “reasonable and necessary supports” criteria under s 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) are met in respect of supports in dispute – past expenditure by the Applicant of NDIS funding on an item the Respondent advised the Applicant was not to be funded under his NDIS plan – decisions under review set aside and remitted with directions
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Commonwealth of Australia Constitution Act 1900 (Cth)
Disability Discrimination Act 1992 (Vic)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Cases
Re Deayton and National Disability Insurance Agency [2021] AATA 1506
McGarrigle v National Disability Insurance Agency (2017) 157 ALD 520
National Disability Insurance Agency v Foster [2023] FCAFC 11
National Disability Insurance Agency v McGarrigle (2017) 157 ALD 458
Re Parrey and National Disability Insurance Agency [2023] AATA 672
Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852
Warwick v National Disability Insurance Agency [2024] FCA 616
Secondary Materials
Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008)
Operational Guidelines issued by National Disability Insurance Agency entitled “Assistive Technology” (updated on 20 December 2023) - Assistive Technology | NDIS
Operational Guidelines issued by National Disability Insurance Agency entitled “Principles we follow to create your plan” (updated on 25 September 2023) - What principles do we follow to create your plan? | NDIS
Operational Guidelines issued by National Disability Insurance Agency entitled “Reasonable and necessary supports” (updated on 6 October 2023) - Reasonable and necessary supports | NDIS
REASONS FOR DECISION
Senior Member K Parker
16 September 2024
INTRODUCTION

The Applicant, Mr Michael Deayton, is an adult participant in the National Disability Insurance Scheme (‘NDIS’). The NDIS is governed and administered under the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’).
Mr Deayton lodged this application for review on 21 July 2023. The path of this application before the Tribunal took a number of twists and turns before the Tribunal’s final decision was made. In the early stages, the Tribunal was met with significant resistance by the Applicant in providing the information he was being asked to provide because Mr Deayton’s view was his NDIS plan should contain the supports he was previously given in his State-based Individual Support Plan (‘ISP’) before he transitioned across the NDIS and that he should not need to have to reagitate his requests for supports with the National Disability Insurance Agency (‘NDIA’). It was considered appropriate to list the matter for a substantive hearing at an early stage to seek to adduce further information from Mr Deayton. This proved to be fruitful and allowed the Tribunal to get to the heart of the issues in this application. More evidence surfaced as a result of the hearing which was further addressed by the parties in submissions lodged with the Tribunal after the hearing. Along the way, there was some narrowing of the supports and issues in dispute between the Parties. By the end of this process, the issues remaining for determination by this Tribunal are whether funding should be included in his statement of participant supports (‘SOPS’) forming part of his NDIS plan for four requested supports described below. The Tribunal is also required to decide upon the notional duration of Mr Deayton’s next NDIS plan. The NDIA contends it should be six months. Mr Deayton contends it should be one year, however, he was not necessarily opposed to the suggestion of it being six months.
There was previously also an issue between the parties about the plan management specifications in Mr Deayton’s NDIS plan. Mr Deayton has requested that he should be permitted to self-manage his plan. The NDIA changed it to being “plan-managed” (which means it is to be managed by a NDIS-registered external plan manager to be appointed by the NDIS participant). This change was made because Mr Deayton had expended funds on a support which the NDIA informed him was not, in the NDIA’s view, a “reasonable and necessary support” and therefore, should not be funded under the NDIS. Mr Deayton accepts that this did occur, and that he was aware of the instruction from the NDIA not to make that payment, but he said he had prioritised his wellbeing.
After the plan was changed to “plan-managed”, Mr Deayton has refused to engage and pay for supports including support worker assistance except for certain activities, because he is not prepared to provide information to the plan manager or for the plan manager to process payments on his behalf. Mr Deayton claims this has meant he has been on “home detention”. The Tribunal acknowledges Mr Deayton’s views about this but ultimately, it is a choice Mr Deayton has made not to access his supports. Until now, it was within Mr Deayton’s control to change the situation he is complaining about, by engaging the supports to assist him and by allowing the plan manager to process the payments. This issue has now been resolved because the NDIA’s view about the previous plan management issue, has since altered. The NDIA is now content to meet Mr Deayton’s plan management request to change the specifications of “plan-managed” to “self-managed” in relation to managing his funding under any new SOPS approved from him as a result of this Decision. The Tribunal has also considered whether funding should be added to Mr Deayton’s plan to provide him with training to enable him to understand his responsibilities if he is to self manage the funding in his plan, and his statutory obligation under s 46 of the NDIS Act that he only expends NDIS funding in accordance with his NDIS plan.
The Tribunal has jurisdiction to undertake this review under s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’), operating in conjunction with s 103 of the NDIS Act.
For the reasons set out below, the Tribunal considers that the four requested supports in dispute between the Parties, are “reasonable and necessary supports” for Mr Deayton and should be funded under the NDIS. There are two other supports, transport supports and the cost of the annual subscription to RACV Roadside Assist for a Wheelchair, which the Parties agree should be included in Mr Deayton’s NDIS plan, so they will be included in Mr Deayton’s next SOPS, as well as all other existing supports in his current SOPS, on a pro rata basis. The Tribunal is content for the funding to be “self-managed” and for the notional duration of Mr Deayton’s next NDIS plan to be 12 months.
BACKGROUND
Mr Deayton lives with a rare, genetic muscle disorder, nemaline myopathy. Congenital myopathy causes problems with muscle cells, affecting the tone and contraction of the muscle fibres.[1] This leads to weakness of skeletal muscles, which has happened in Mr Deayton’s case.
[1] Mr Deayton’s Hearing Tender Bundle (‘Mr Deayton’s HTB’), document 61.
As time passes, Mr Deayton’s condition has worsened. He used to be able to walk when he was younger. He is now 60 years of age.[2] He requires a wheelchair to assist him to mobilise. He lives alone in a public housing two bedroom unit in an outer suburb in Melbourne, Victoria, provided to him through Housing Vic.[3]
[2] T-Documents, p.2.
[3] Transcript, P-23. Housing Vic is now known as Homes Victoria.
Mr Deayton also has a keen interest in AFL football and horse racing. He is a member of a horse racing syndicate. Mr Deayton gave evidence that he has several friendships and has developed social networks associated with horseracing. Mr Deayton gave evidence that he likes to be able to talk about the latest developments in horseracing and football, with his family, friends, and the other members of his horse racing syndicate.
Mr Deayton has been involved in and would like to return to competitive sports. Previously, Mr Deayton has represented Victoria in electric wheelchair sports through Powerchair Victoria (specifically, in hockey and English-rules football).
Mr Deayton’s current NDIS plan commenced on 9 September 2022 for a notional period of two years (‘Current NDIS Plan’).[4] Ms Deayton’s goals under his NDIS plan include:
(a)to maintain his independent living arrangements, so he can continue to live on his own;
(b)meet his ongoing support needs, so he can maintain his independence, dignity, and self-esteem;
(c)maintain his current independent movement and transportation in and around his home and community, so he can see his family and friends;
(d)maintain and enhance his social networks, have more opportunities to access community activities and participate in recreational and sporting activities; and
(e)maintain his mobility, flexibility, and muscle strength, so he can maintain his independence.
[4] The Tribunal presumes this is the current plan as it has not been provided with any subsequent plans by either party. The Tribunal notes the reassessment date of this plan is 8 September 2024.
The SOPS in the Current NDIS Plan has approved a total of $229,268.51 of funding for Mr Deayton over a period of two years, including:
(a)$196,478.96 for core supports, which includes 10 hours per week of support worker assistance for social, and community participation. The plan specifies that this funding is to be “plan-managed”;
(b)$3,212.00 over the two-year period of his plan, for transport supports (paid directly to Mr Deayton on a fortnightly basis);
(c)$2,739.15 over the two-year period of his plan, for the plan management administration costs;
(d)$10,863.44 for the two-year period of his plan, for Occupational Therapy;
(e)$4,655.76 for the two-year period of his plan, for Physiotherapy;
(f)$6,008.40 for the two-year period of his plan, for support coordination services;
(g)$3,500 over the two-year period of his plan, for assistive technology (‘AT’); and
(h)$1,810.80 for the supply and installation of a ceiling hoist.
Initially, Mr Deayton had requested additional funding for six additional supports. As further information came to light between the date of lodgement of Mr Deayton’s application with this Tribunal, and the conclusion of the substantive hearing, the NDIA accepted that two of the requested supports (specifically, $7,306 per annum for transport supports including transport from his home to Parkville (return) to participate in local Powerchair sporting competition matches),[5] and funding for RACV Roadside Assist for a Wheelchair (specifically, $25.50 per annum), were “reasonable and necessary supports” under the NDIS Act.[6] The Tribunal is satisfied that funding for those supports (to be paid as from 9 September 2022 to the Reassessment Date), should be provided to Mr Deayton under the NDIS.
[5] Ms Deayton said this is a new support and was not funded previously on his State-based ISP. The NDIA informed the Tribunal at the hearing that it had revised its position and considers that transport funding in the sum of $7,306 per year is reasonable and necessary – Transcript P-7, and the NDIA’s SFIC at [46.7].
[6] NDIA’s Outline, [10].
However, four of the additional supports requested by Mr Deayton remain in dispute as between the parties. They were addressed in detail at the substantive hearing of this matter.
Four supports remaining in dispute
The remaining four requested supports in dispute (‘Supports in Dispute’) are:
(a)a request for funding to pay for excessive electricity consumption by Mr Deayton (‘Electricity Support’). Mr Deayton says he has an increased need to operate numerous appliances in his home, compared to a person without a disability. Specifically, he says he expends excessive power to heat his unit, due to thermoregulation issues reportedly experienced by him arising from his medical condition, and to operate certain assistive technology such as the hoist used to facilitate transfers and automated doors/adjustable bed in his home;
(b)a request for physiotherapy (two hourly session per fortnight, or 52 hours of physiotherapy per annum) and massage therapy (one hour fortnightly or 26 hours per annum) (‘Physiotherapy and Massage Support’) (currently, Mr Deayton is funded under the NDIS for 12 hours of physiotherapy and 28 hours for “other professional supports”); and
(c)a request for an amount of $924 per annum to pay for a Foxtel Sports Package subscription (‘Foxtel Support’); and
(d)a request for the associated cost of having his regular support worker from Melbourne accompany him interstate to attend two Powerchair sporting events per annum (‘Powerchair Events Support’).
Mr Deayton has made a plan management request under s 43 of the NDIS Act that the funding in his NDIS plan should be “self-managed”.[7] Initially, the NDIA contended that self-management would “pose an unreasonable risk of harm” to Mr Deayton and declined to grant his plan management request under s 43 of the NDIA Act (see s 44(1)(b)(i) of the NDIS Act).
[7] T-Documents, T6/80.
NDIA’s change of position regarding the plan management issue
Between the first and second days of the substantive hearing, the NDIA lodged an “Outline of Respondent’s Oral Argument” (‘NDIA’s Outline’) stating that the NDIA no longer contends that s 44(1)(b)(i) of the NDIS Act applies to Mr Deayton (being the basis upon which the NDIA has previously contended that the funding in his plan should be “plan-managed” instead of “self-managed”). However, the NDIA indicated its preference for the plan duration to be limited to six months to allow an assessment of matters to be made at the end of that period. Given the history of past expenditure, the Tribunal will need to satisfy itself that the funding in any new SOPS for Mr Deayton should be “self-managed” as agreed between the parties and if so, on what basis.
ISSUES

Accordingly, the primary issues in this proceeding are:
(a)whether each of the four Supports In Dispute are “reasonable and necessary supports” within the meaning of the NDIS Act and should be included in Mr Deayton’s SOPS forming part of his NDIS plan;
(b)if a new SOPS is approved for Mr Deayton, to determine the date by which the NDIA must reassess the new plan under Division 4 of the NDIS Act (that is, the Reassessment Date); and
(c)to determine how the funds in any new SOPS approved for Mr Deayton are to be managed.
EVIDENCE, SUBMISSIONS AND HEARING
The parties lodged the following written submissions with the Tribunal:
(a)Mr Deayton’s Statement of Facts, Issues and Contentions (undated) lodged on 8 December 2023 (‘Mr Deayton’s SFIC’);
(b)NDIA’s Statement of Facts, Issues and Contentions (2 February 2024) (‘NDIA’s SFIC);
(c)Mr Deayton’s Reply to the NDIA’s SFIC (undated) lodged on 26 February 2024 (‘Mr Deayton’s Reply’);
(d)Mr Deayton’s Further Submissions for the Hearing (undated) lodged on 11 March 2024 (‘Mr Deayton’s Further Submissions’);
(e)NDIA’s Outline of Oral Argument (12 March 2024) (‘NDIA’s Outline’).
The parties lodged the following documentary evidence with the Tribunal:
(a)a set of documents lodged by the NDIA pursuant to its obligations under s 37 of the AAT Act on 10 August 2023 (‘T-Documents’) (223 pages);
(b)Mr Deayton’s hearing tender bundle (‘Mr Deayton’s HTB’) (746 pages) comprising:
(i)Documents 1 to 36 lodged on 8 December 2023;
(ii)Documents 37 to 47 lodged on 26 February 2024;
(iii)Documents 48 to 60 lodged on 11 March 2024; and
(iv)Document 61 lodged on 13 March 2024.
(c)NDIA’s hearing tender bundle lodged on 2 February 2024 (642 pages) (‘NDIA’s HTB’);
(d)NDIA’s supplementary hearing tender bundle lodged on 1 March 2024 (‘NDIA’s Supplementary HTB’);
(e)Publication entitled Victorian Concessions Guide to Discounts and Services lodged by the NDIA on 4 March 2024;
(f)email from Ms Georgia McIntyre to Mr Deayton dated 14 September 2022 lodged with the Tribunal by Mr Deayton on 4 March 2024;
Mr Deayton lodged a Statement of Lived Experience (undated) on 8 December 2023 (‘Mr Deayton’s SLE’).[8]
[8] Mr Deayton’s HTB, document 1.
The substantive hearing of this matter took place over two days on 4 and 12 March 2024. Mr Deayton was self-represented in this proceeding and was accompanied by his support worker. The NDIA was represented by Mr Matthew Keneally of counsel and an external lawyer from Maddocks, Ms Jessica Summers. The NDIA case manager was also present.
The parties lodged the following further evidence and submissions after the conclusion of the substantive hearing:
(a)by email dated 14 March 2024, the NDIA’s Supplementary Submission (‘NDIA’s Supplementary Submission’);
(b)by email dated 22 March 2024, the NDIA’s further submission;
(c)by email and attached document dated 2 April 2024, Mr Deayton’s Reply to NDIA’s Supplementary Submission and Closing Statement (‘Mr Deayton’s Closing Statement’); and
(d)by email dated 21 August 2024, Mr Deayton’s further submissions about his request for funding for the Powerchair Events Support; and
(e)by email dated 12 September 2024, the NDIA’s response to Mr Deayton’s further submissions about his request for funding for the Powerchair Events Support.
PRELIMINARY ISSUE – TRANSITION FROM STATE-BASED SCHEME TO NDIS
At the hearing, Mr Deayton expressed that he should not be required to argue whether the supports are “reasonable and necessary supports”. Mr Deayton says he has already done so in an earlier proceeding before the Victorian Civil & Administrative Tribunal (‘VCAT’) in a proceeding under the Disability Discrimination Act 1992 (Vic) (‘DDA’). As referred to in Mr Deayton’s SFIC, he relies upon the Australian Constitution[9] and s 198 of the NDIS Act in support of this contention.[10]
[9] Commonwealth of Australia Constitution Act 1900 (Cth)
[10] Transcript, P-9.
In this regard, the Tribunal asked Mr Deayton at the hearing, if he could recall if there was ever an agreement reached in the previous VCAT matter, or orders made at the end of the VCAT hearing. Mr Deayton said he had “no idea”. Then, he said he remembered that there was a confidential agreement signed and witnessed by the VCAT member.[11] When asked whether he was sure whether a VCAT member had signed it, Mr Deayton said he could not be 100 per cent sure about that.[12] He said this took place 10 years ago and it was something he did not want to go through again.[13]
[11] Ibid, P-10.
[12] Ibid, P-11.
[13] Ibid, P-11.
In respect of persons who transitioned from ISPs under the State-based scheme to the Commonwealth NDIS, a commitment was given by the Commonwealth Government to improve the outcomes of people with disability by supporting them through the NDIS with the shared goal of increasing social and economic participation, and that both governments are committed to the delivery of the NDIS to ensure that it achieves the objections set out under the NDIS Act. These commitments took the form of a Bilateral Agreement between the Commonwealth of Australia and the Victorian Government which commenced on 1 July 2019 (‘Bilateral Agreement’).[14]
[14] Applicant’s HTB, document 38.
Schedule C to the Bilateral Agreement is headed, “Continuity of Support”. Of relevance in this proceeding, Schedule C provides as follows (emphasis added):
Principles
1.    People with disability, their families and carers will be provided with continuity of support that will enable them to achieve similar outcomes to the outcomes they were aiming to achieve prior to the introduction of the NDIS.
2.    The assistance provided to people through continuity of support will aim to support people to live as independently as possible by working with them to reduce their need for supports or to access supports from other systems, where appropriate. Where a person’s support needs are reduced through capacity building work, or are met by other service systems, the assistance through continuity of support will be phased out.
3.    The Parties agree that people with significant ongoing needs will be provided with assistance to prevent hardship where this would significantly undermine the person’s wellbeing, or social and economic participation.
…
Who should receive Continuity of Support
7. The Parties agree that continuity of support will apply for people resident in an area or part of a cohort that transitioned (or continues to transition) to the NDIS if:
a. …
b. are receiving supports that do not meet the definition of reasonable and necessary supports in the NDIS Act; and
c. the funding for this support was attributed to a program or service that ceased when the NDIS was introduced, or where the funding for that program or service was largely transferred to the NDIS.
At the hearing, the Tribunal was referred to the decision by Member Thompson in Re Parrey and National Disability Insurance Agency [2023] AATA 672. The “no disadvantage principle” was considered by the Tribunal in Parrey, albeit reference was made to an earlier (2012) intergovernmental agreement, namely, the Council of Australian Governments Intergovernmental Agreed for the NDIS Launch made on 7 December 2012 (‘COAG Agreement’). Specifically, reference was made to clause 60 of the COAG Agreement which provides that COAG has committed “to provide continuity of support for people with disability currently receiving services to ensure that they are not disadvantaged in the transition to the NDIS” and that the NDIS will develop a “transition strategy” for such persons which will ensure no disadvantage in the person’s outcomes, that is, the support provided by the NDIS will enable the person to achieve at least the same level of social and economic participation (or undertake the same range of activities) as enabled by their previously provided support.
As identified by the Tribunal in Parrey, s 118(2) of the NDIS Act requires the NDIA to use its best endeavours to act in accordance with any relevant intergovernmental agreements when performing its functions.
It is evident from both the COAG Agreement and the subsequent Bilateral Agreement that the focus of the principles referred to in those intergovernmental agreements is not a transitioning person receiving like for like individual supports, but instead, that the supports provided upon transition will enable them to achieve the same outcomes in terms of social and economic participation. This assessment can be made by considering the package of supports to be funded for the person upon transition, as a whole.
Once a person is granted access to the NDIS, any plan approved under this scheme is designed to be customised and tailored to the participant’s individual circumstances. The NDIS was not intended to be a “set and forget” scheme. Instead, the ongoing customisation, tailoring, and/or adjusting, of the supports in a NDIS participant’s plan to their individual circumstances, will continue. As explained to the Parties at the hearing of this matter, this calls for comprehensive reassessments (or NDIS plan reviews) to occur on a periodic basis.
NDIS plans may vary in duration. Some are as short as six months. Others as long as three years. It will depend on the participant’s individual circumstances and whether their disability-related needs are expected to change significantly over that next period.
As a participant goes through life and their support needs change, different aspects of the plan might expand or reduce at different times. If their disability-related support needs are stable, a participant’s plan is likely to be more predictable and contain similar supports from year to year, but if not, changes to the supports in a participant’s plan may be warranted. The Tribunal acknowledges that Mr Deayton experiences frustration in needing to continually re-state his case, as he describes it.
Each of the State-based and Federal systems have their own distinct set of criteria which are required to be met before supports are considered to be “reasonable and necessary supports” and will be funded. Even though a participant may transition from an ISP to a NDIS plan, there is nothing in the legislative provisions within the NDIS Act or any other legislation, stating a person is excluded or exempted from the requirement of needing to positively satisfy that the “reasonable and necessary supports” criteria within the NDIS Act are met, before funding will be approved for a specific support.
For this reason, the Tribunal must assess Mr Deayton’s request for additional supports against the NDIS-specific criteria as to what will (and will not) constitute a “reasonable and necessary support” under the NDIS Act.
LEGISLATIVE FRAMEWORK
The NDIS was established under the NDIS Act and operates in pursuit of the objectives set out in s 3 of the NDIS Act. Section 4 establishes general principles guiding actions to be taken under the NDIS Act.
Section 31 of the NDIS Act establishes a set of general principles that apply to the preparation, variation, reassessment, and replacement of a NDIS participant’s plan, as reproduced below:
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.
Section 31 of the NDIS Act sets out several principles that apply in the development of an 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.
Each plan must have in it an approved SOPS; and a plan does not take effect until a SOPS forming part of the plan has been approved by the CEO under s 33(4) of the NDIS Act. Specifically, s 33 of the NDIS Act sets out certain matters that must be included in a participant’s plan, including the participant’s statement of goals and aspirations (s 33(1)) and a SOPS, which is prepared with the participant and approved by the CEO (or his or her delegate), in accordance with s 33(2) of the NDIS Act.
Section 33(5) of the NDIS Act requires that the CEO (or his or her delegate), in deciding whether to approve the SOPS under s 33(2), must:
(a) have regard to the participant’s statement of goals and aspirations; and
(b) have regard to relevant assessments conducted in relation to the participant; and
(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant.
The NDIS rules referred to in s 33(5)(d) include the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (‘Supports Rules’). Part 5 of the Support Rules sets out “General criteria for supports, and support that will not be funded or provided”. Specifically, Rule 5.1 provides that a support will not be provided or funded under the NDIS if it is unlikely to cause harm to the participant or to pose a risk to others (Rules 5.1(a); it is not related to the participant’s disability (Rule 5.1(b)); it duplicates other supports delivered under alternative funding through the NDIS (Rule 5.1(c)) or 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 (Rule 5.1(d)). Rule 5.2 provides that the exclusion in Rule 5.1(d) does not apply in respect of additional living costs that are incurred by a participant solely and directly as a result of their disability support needs (Rule 5.2(a)) or to costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur (Rule 5.2(b)).
Section 34(1) of the NDIS Act provides as follows:
34 Reasonable and necessary supports
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the [NDIS], and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(2)The [NDIS] rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
The Tribunal also notes the observations of Mortimer J in McGarrigle v National Disability Insurance Agency (2017) 157 ALD 520 at [43], as follows:[15]
The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) to (7) constrain the rule-making power to preserve the federal characteristics of the NDIS. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Rules) are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.
[15] The Tribunal notes that this decision was appealed but that the appeal was dismissed: refer National Disability Insurance Agency v McGarrigle (2017) 157 ALD 458.
More recently, Colvin J in Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852 (‘Public Trustee of South Australia’) at [17] to [23], decided that there is a two-stage process for a decision-maker to deploy the concept of “reasonable and necessary supports” in the NDIS Act as a whole. The first stage is to decide whether it is a reasonable and necessary support in light of the provisions of the NDIS Act as a whole, including the guiding principles set out in s 4 of the NDIS Act. The second stage is for the decision-maker to reach an affirmative state of satisfaction as to each of the six criteria set out in s 34(1) of the NDIS Act. Those criteria are concerned with the extent to which it may be appropriate for a reasonable and necessary support to be funded under the NDIS.
The Tribunal has considered the following Operational Guidelines published by the NDIA on its website:
(a)NDIA Operational Guidelines entitled “Principles we follow to create your plan” (updated on 25 September 2023);
(b)NDIA Operational Guidelines entitled “Reasonable and necessary supports” (updated on 6 October 2023) (‘NDIA R&N Guidelines’); and
(c)NDIA Operational Guidelines entitled “Assistive Technology” (updated on 20 December 2023) (‘NDIA AT Guidelines’).
CONSIDERATION OF REQUEST FOR ELECTRICITY SUPPORT

Electricity usage in the home is generally regarded as a day-to-day living cost.
Rule 5.1 of the Support Rules expressly excludes a support from being funded or provided under the NDIS if it “relates to a day-to-day living cost” (such as “utility fees”), “that are not attributable to a participant’s disability support needs” (see Rule 5.1(d)). On 12 September 2024, the NDIA made the following submission to the Tribunal about the Federal Court of Australia decision (currently on appeal to the Full Federal Court) in Warwick v National Disability Insurance Agency [2024] FCA 616:
This decision considered the application of r5.1(d) and the exception to this rule under r5.2 of the Rules. When considering the operation of r5.1(d), his Honour Justice Perram stated at [14]:
Paragraph 5.1(d) is contained in a legislative instrument. The expression ‘day-to-day living costs’ is not defined in that instrument, nor does it bear a technical meaning. Thus, it bears its ordinary meaning. According to the Macquarie Dictionary, the ordinary meaning of ‘day-to-day’ is ‘ordinary; happening every day’. Perhaps the word ‘everyday’ captures these two concepts. The ordinary meaning of ‘living costs’ is those expenses which are incurred in the course of living for the purpose of living. Thus ‘day-to-day living costs’ are those everyday expenses which are incurred in the course of living for the purpose of living. This meaning is confirmed by the examples which appear in brackets in paragraph 5.1(d) – ‘rent, groceries and utility fees’ – which are canonical examples of day-to-day living costs.
In relation to r5.2(a), his Honour stated at [19]:
The point of paragraph 5.2(a) is to permit recovery of everyday costs where those costs relate solely to disability support needs. Thus the telephone bill is out, but transport costs for a person unable to drive or to utilise public transport because of a disability are in. Expenses which are disability-related but which would be incurred anyway even if the person did not have a disability are not recoverable. Thus the fact that a telephone is used for purposes which relate to disability does not make them recoverable if it is used for other non-disability-related purposes too.
Rule 5.2 elaborates further. It provides that the day-to-day living costs referred to in Rule 5.1(d) do not include the following (which may be funded under the NDIA if they relate to reasonable and necessary supports):
(a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b) costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
Mr Deayton has requested funding to cover the cost of his excessive electricity usage (‘Electricity Support’) which he says is occasioned by reason of:
(a)his stated need to use a reverse cycle air conditioner and fan heater in his home excessively and at high temperatures, to keep him warm, due to thermoregulation issues which he attributes to his genetic condition;
(b)his stated need to use electricity to use a “Chillipad” (which the Tribunal presumes to be a reference to a Chilipad Sleep mat) which acts to both heat and cool the temperature in his bed or when sitting in a chair (Mr Deayton said the temperature settings range between 14 degrees and either 25 or 30 degrees).[16] Mr Deayton gave evidence he uses the Chilipad Sleep mat every day and will transfer it to his office chair while he is using the computer which can be for two to six hours. Mr Deayton gave evidence that while sitting at his computer, he has tried to not use the Chilipad Sleep mat and instead, to use the reverse cycle air conditioner. He said while it will depend on the day, this is not enough to warm him;[17] and
(c)his stated need to use electricity to operate the hoist to assist with transfers and for door automation/adjustable bed, both used in his house.[18]
[16] Transcript, P-23.
[17] Ibid, P-15, P-21.
[18] Mr Deayton’s SFIC, [44].
Mr Deayton said that at one stage or another during the day, he will have “something on” (that is, by using a device which uses electricity). He explained that his feet get very cold. Mr Deayton explained that dependant on the day and it is “definitely” the case in winter, that he will sit with a blanket on him and the air conditioner set at 30 degrees.[19]
[19] Transcript, P-15.
Mr Deayton gave evidence at the hearing, as an example, that he had attended his nephew’s 21^st birthday party in the winter. He said there were outside heaters but he returned home at 1am, turned the heater up to 30 degrees, turned the bed temperature to 25 degrees, but did not stop shivering until about 7am.[20] The Tribunal accepts Mr Deayton’s evidence in this regard and is satisfied that he experiences thermoregulation issues making it a significant challenge for him to stay warm.
[20] Ibid, P-22.
During cross-examination, Mr Deayton confirmed that Housing Vic (as it was previously named), being his landlord, had installed the reverse cycle air conditioner in his unit. Mr Deayton gave evidence that he lives in a two-bedroom unit with a lounge[21] and a combined kitchen/dining room.[22] He confirmed there are a total of three reverse-cycle air conditioners in his unit. Mr Kenneally asked Mr Deayton at the hearing whether he had spoken to Housing Vic (Homes Victoria now), about alternative ways that Mr Deayton could heat the unit.[23] Mr Deayton gave evidence about a new gas heater which he said had been installed in one of the rooms in his unit about two years prior. He said the gas heater had been serviced about six to eight months ago.[24]
[21] Transcript, P-16.
[22] Ibid, P-17.
[23] Ibid, P-24.
[24] Ibid, P-24 & P-25.
During cross-examination, Mr Kenneally asked Mr Deayton whether the gas heater was inadequate to control his temperature. Mr Deayton said that it was inadequate when using it alone because it will only heat a certain area, and not the other rooms in his home. He said it “only heats when you are sitting in front of it”.[25] The gas heater is in the loungeroom. Mr Deayton said it is a wall furnace.
[25] Ibid, P-25.
In Mr Deayton’s SFIC, at [44], he refers to certain electricity bills which he lodged with the Tribunal as evidence in this proceeding. In a recent bill dated 29 November 2023 (“Electricity Bill”),[26] Mr Deayton referred to the “usage comparison chart” which records that the average usage for a single person household in his area is 7.34 kWh per day.[27] The Electricity Bill notes this figure is sourced from the Australian Energy Regulator and for this reason, the Tribunal regards it as reliable in the absence of any evidence to challenge its accuracy as an average usage figure for a single occupancy residence in the area where Mr Deayton lives.
[26] Mr Deayton’s HTB, document 14.
[27] Ibid, page 4.
Mr Deayton states that he uses 15.58 kWh of electricity per day. This is double the average usage based on the figure referred to in the above paragraph. In terms of Mr Deayton’s request for Electricity Support, he states: “I will accept a total of 2500kWh per annum usage @ $0.298505 + $746 p.a. or 62.17 per month”.[28] Mr Kenneally contends that these are “ballpark figures” and “imprecise”, while acknowledging that it is difficult for Mr Deayton to isolate the electricity costs which “goes to the thermoregulation needs”.[29]
[28] Mr Deayton’s SFIC, [44].
[29] Transcript, P-28.
The Electricity Bill covered a period from 28 October 2023 to 27 November 2023 (31 days). The daily supply charge is recorded on page 2 of the Electricity Bill as being $1.016581 per day. This daily supply charge is an everyday expense whether or not a person has a disability and is excluded as a funded support under the NDIS by the operation of Rule 5.1(d) of the Support Rules. The Tribunal does not understand Mr Deayton to be requesting any funding for his electricity supply charge. For clarity, the Tribunal does not consider the electricity supply charge component of Mr Deayton’s electricity bills would be a “reasonable and necessary supports” in the NDIS Act. This is consistent with the observations in Warrick as highlighted by the NDIA above in paragraph [47].
On page 2 of the Electricity Bill, it shows that Mr Deayton is charged $0.298505 per kWh of electricity usage. On page 3, it records that the “VIC Government Annual electricity concession” was applied for the entire period of this bill (that is, to both the supply charge and the usage fees), resulting in a deduction of $27.94 from the total of the Electricity Bill.
The Electricity Bill confirms that Mr Deayton’s daily usage is 15.58 kWh. The Tribunal asked Mr Deayton at the hearing whether he engages in any activities in the home in addition to the disability-related usage that he had identified, that would otherwise “unduly use electricity”. Mr Deayton said that there is nothing unusual, except perhaps to say that he is at home all day, so would probably use more power than a person who is working.[30] He said he has experienced difficulty in opening the blinds, so he might have the lights on in the house “a bit more often”.[31]
[30] Ibid, P-34.
[31] Ibid, P-35.
The NDIA does not accept that the requested Electricity Support is a reasonable and necessary support under the NDIS Act. Mr Kenneally contended at the hearing that the first reason for this contention is that there is no evidence to determine the actual component of Mr Deayton’s electricity which is “disability specific”, and so it is difficult to quantify this component.[32] Mr Kenneally contends that the NDIA is not in a position to impose itself on Mr Deayton’s life and to track his electricity usage.
[32] Ibid, P-29.
Mr Kenneally also informed the Tribunal that the primary reason why the NDIA does not consider the Electricity Support to be “reasonable and necessary support” is that s 34(1)(f) is not met because it is more appropriately provided by the State government.[33]
Stage One: Whether the Electricity Support is a reasonable and necessary support taking into account the NDIS Act as a whole
[33] Transcript, P-32.
As mentioned above, Public Trustee of South Australia stands as authority for the proposition that the Tribunal is required to consider, as a first stage, whether the cost of the Electricity Support is a reasonable and necessary support in light of the provisions of the NDIS Act as a whole, including guiding principles set out in s 4 of the NDIS Act.
Stated objectives under the NDIS Act include, under s 3(1)(a) of the NDIS Act, to give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities,[34] which includes a principle of “respect for inherent dignity” and “individual autonomy”. Another objective, under s 3(1)(g), is to promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles. The guiding principles in s 4 of the NDIS Act include the principles in s 4(1) which provides that people with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional, and intellectual development; and in s 4(11), which provides that reasonable and necessary supports for people with disability should support them to maximise their independence and live independently.
[34] Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008).
In light of the provisions of the NDIS Act as a whole, the Tribunal is satisfied that the Electricity Support could be a reasonable and necessary support in respect of Mr Deayton and his individual circumstances, as the provision of such support is aligned with the objectives and principles stated above.
The Tribunal will now proceed, as a second stage, as articulated in the decision of Public Trustee of South Australia, to consider whether each of the mandatory criteria under s 34(1) of the NDIS Act are met.
Is the Electricity Support excluded as a funded support by reason of Rule 5.1(d)
The Tribunal is satisfied that the exclusion applicable under Rule 5.1(d) in respect of day-to-day living costs, does not apply in respect of the request for funding for Mr Deayton’s electricity usage charges in excess of 7.34 kWh per day. The Tribunal finds that those excess charges are incurred by Mr Deayton solely and directly as a result of his disability support needs and that Rule 5.2(a) applies. The evidence given by Mr Deayton as set out above in paragraphs [49] to [58] was not challenged by the NDIA. It was compelling and the Tribunal accepts it. The Tribunal concludes that Rule 5.2(a) applies in Mr Deayton’s case in respect of the excess electricity usage charges and for this reason, the exclusion under Rule 5.1(d) does not apply to exclude Mr Deayton from receiving funding under his NDIS plan for the Electricity Support, provided the mandatory criteria under s 34(1) of the NDIS Act are met.
Stage Two: Whether the Electricity Support meets the criteria under s 34(1) of the NDIS Act
Section 34(1)(a) – goals and aspirations
Under s 34(1)(a) of the NDIS Act, the Tribunal must be satisfied that the Electricity Support will assist Mr Deayton to pursue the goals, objectives and aspirations included in his statement of goals and aspirations within his NDIS plan. They are outlined in paragraph [11] above. The NDIA does not contend that the criterion under s 34(1)(a) is not met in respect of the Electricity Support.[35]
[35] NDIA’s SFIC, [46.6].
The Tribunal is satisfied that this support will assist Mr Deayton to “meet his ongoing support needs, so he can maintain his independence, dignity, and self-esteem”, being another one of his goals and aspirations set out in his NDIS plan.
The Tribunal concludes that the requested Electricity Support meets the first criterion under s 34(1)(a) of the NDIS Act.
Section 34(1)(b) – social and economic participation
Section 34(1)(b) of the NDIS Act provides that the Tribunal must be satisfied that the requested support “will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation”. The NDIA does not contend that the criterion under s 34(1)(a) is not met in respect of the Electricity Support.[36]
[36] Ibid.
The Tribunal is satisfied that the provision of the Electricity Support will assist Mr Deayton to:
(a)live comfortably in his home by addressing his higher thermoregulation needs compared to a person who does not have his disability by powering his reverse cycle air conditioners, fan heater and Chilipad Sleep mat;
(b)facilitate Mr Deayton’s transfers, by the powering the use of his hoist and adjustable bed; and
(c)by assisting with his mobility, by powering the use of the automated doors.
The Tribunal finds that by Mr Deayton being assisted with those activities, he may engage in social and economic participation within the comfort of his home.
The Tribunal is satisfied that the requested Electricity Support meets the first criterion under s 34(1)(b) of the NDIS Act.
Section 34(1)(c) – value for money
Section 34(1)(c) of the NDIS Act provides that the Tribunal must be satisfied that the requested 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 Support Rules deals with the assessment of this criterion, as follows:
Value for money
3.1In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(c)whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d) for supports that involve the provision of equipment or modifications:
(i)the comparative cost of purchasing or leasing the equipment or modifications; and
(ii)whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e)whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f)whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
Mr Deayton gave evidence at the hearing about the benefits to be achieved by the provision of the Electricity Support. Mr Deayton explained that he can be in a room in his home while it is “20-odd degrees outside”, and he will have a “little fan heater” on him.[37] He said that sometimes he will use the overhead (or reverse cycle) air conditioner and the fan heater at the same time, to warm his extremities.[38]
[37] Transcript, P-17.
[38] Ibid.
The NDIA contends that a possible comparable support (to the cost of electricity to power the heating devices to stay warm), would be for Mr Deayton to wear warmer clothing, or to place blankets over him. The Tribunal does not consider this to be a comparable support as it does not achieve the same outcome of enabling Mr Deayton to go about his day, including in his home, in a comfortable warm state of being, without being laden with excessive clothing and the placement of blankets over him. This is an issue relating to Mr Deayton’s quality of his life and his dignity.
It might also be suggested the gas-powered wall furnace is an alternative support, but the Tribunal accepts Mr Deayton’s evidence that there are limitations to the areas in his house that are able to be warmed by the gas furnace. There is no evidence before the Tribunal to indicate the use of this alternative device would be less expensive than the use of the other electricity-powered devices used by Mr Deayton to keep him, and his extremities, sufficiently warm.
There is no contention by the NDIA, nor any evidence before the Tribunal, of there being less expensive comparable supports in respect of the use of electricity by Mr Deayton to power his hoist equipment, the automated doors, or the adjustable bed in his home. Those devices are required by Mr Deayton to facilitate transfers and for him to independently optimise his mobility by using the automated doors to easily move from one space to another at his home.
The Tribunal accepts there is some complexity in working out the cost of the Electricity Support. However, this task is not impossible. The Tribunal is satisfied that Mr Deayton should be paid for any charges rendered to him by Origin Energy in respect of his electricity usage above 7.34 kWh per day (that is, any charges after any Victorian-based concessions have been applied and deductions made to them). The Tribunal finds that Mr Deayton has incurred these electricity usage charges above this figure, solely and directly as a result of his disability support needs (Rule 5.2(a) of the Support Rules). This means that for each month that Mr Deayton receives an electricity bill from his service provider during the period of his next NDIS plan, he should submit his monthly invoice and claim only that component of his electricity usage charges for his electricity usage above 7.34 kWh per day. This average electricity consumption figure of a single-occupancy residence in the area where Mr Deayton lives, was based on statistics/information provided by the Australian Energy Regulator and the Tribunal regards this information to be reliable. From this amount, a pro-rata deduction should be made in respect of any lump sum payment made to Mr Deayton in respect of the Commonwealth Essential Medical Equipment Payment, explained in further below.

The Tribunal is satisfied that the Electricity Support represents value for money within the meaning of s 34(1)(c) and meets this criterion. The amount of funding to be added (in advance) to Mr Deayton’s NDIS plan (in anticipation of him incurring these charges over the duration of this plan), is an amount equivalent to the total monthly amounts charged to Mr Deayton (that is, after any Victorian-based concessions have been applied and deductions made, as recorded on those bills) over the previous 12-month period, in respect of the electricity usage in excess of 7.34 kWh per day, and minus any lump sum Essential Medical Equipment Payment made to Mr Deayton by the Commonwealth.
Section 34(1)(d) – effective and beneficial
The Tribunal must be satisfied that the Electricity Support for Mr Deayton would be effective and beneficial for him, having regard to current good practice. Mr Deayton uses the additional electricity to cover the cost of air conditioning to enable him to remain comfortable despite his thermoregulation issues, and so that he can use assistive technology such as hoists, his adjustable bed, and automatic doors in his home, to assist him to mobilise when undertaking transfers. The Tribunal regards funding for the additional electricity used for those purposes would be effective and beneficial for Mr Deayton. The Tribunal concludes that this criterion is met.
Section 34(1)(e) – takes into account what is reasonable to expect families, carers, informal networks, and the community to provide
It was not suggested by the NDIA that the Electricity Support could be provided by Mr Deayton’s families, carers, informal networks, or the community. The Tribunal concludes that the criterion under s 34(1)(e) of the NDIS Act is met.
Section 34(1)(f) – support is most appropriate funded or provided through the NDIS and not more appropriately funded or provided through other general systems
Section 34(1)(f) of the NDIS Act provides that the CEO (or the Tribunal upon review) must be satisfied that (emphasis added):
…the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through some other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
1As part of universal service obligation; or
2In accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The Tribunal considers that when making an assessment under s 34(1)(f) of the NDIS Act about whether a support is most appropriately funded through the NDIS, rather than another general service system, that it should take into account a range of factors including:
(a)the type of support available under the other general system compared to the NDIS;
(b)whether the other general system will fund or provide the support to the participant in full, or will partially subsidise it;
(c)the availability of the support under the other general system to the participant in question, including whether the applicant is eligible to receive it; and
(d)other relevant distinguishing features (if any) between the other general system and the NDIS.[39]
[39] Transcript, P-36.
As required by Rules 3.5 to 3.7 of the Support Rules, the Tribunal must take into consideration the factors set out in Schedule 1 to the Support Rules. Under the heading “Health” in Schedule 1, Rule 7.4 provides that:
the NDIS will be responsible for supports related to a person’s ongoing functional impairment and that enable the person to undertake activities of daily living … where they are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment.
As mentioned above, the NDIA contends that this criterion under s 34(1)(f) of the NDIS Act is not met, because the Electricity Support is more appropriately funded under Victorian Government-based electricity concession programs which Mr Deayton is eligible to receive.
Victorian concessions program
On the first day of the hearing of this matter,[40] the NDIA lodged with the Tribunal a publication issued by the Victorian State Government, Department of Families, Fairness, and Housing, entitled “Victorian concessions – A guide to discounts and services for eligible households in Victoria” (‘Concessions Guide’).[41] The Concessions Guide set out seven different types of “energy concessions” which, depending on the circumstances of the account holder, might be applied to a consumer’s electricity and gas bills (for the supply of those services in Victoria).[42] In a section headed “General information about concessions”, it states that the concessions are “discounts on services to help low-income Victorian households pay their bills”.[43] Mr Kenneally described it as a “state government subsidy applied by the utility companies to the bill”.[44]
[40] Transcript, P-47 & P-48. Mr Deayton indicated he did not object to this document being lodged at the hearing of this application.
[41] Exhibit “R3”, lodged with the Tribunal on 4 March 2024.
[42] Ibid, p.6.
[43] Ibid, p.9.
[44] Transcript, P-25.
In the NDIA’s Outline,[45] the NDIA acknowledges that these concessions are “not directed to all disability-related electricity costs”, because to be eligible for them, the account holder is required to be the holder of an eligible concession card. The NDIA also states that Mr Deayton could argue that “the limitation of 17.5% indicates the State Government did not assume responsibility for all disability related electricity costs”, and “the scheme only provides specific subsidies for some additional electricity costs – heating, cooling and life support – that could arise from a disability, not all”.[46]
[45] NDIA’s Outline, [7].
[46] Ibid.
Annual Electricity Concession
The Concessions Guide sets out that an “Annual Electricity Concession” (‘AE Concession’) may be applied to an electricity account holder who holds an “eligible concession card”, such as a Centrelink concession card. This concession comprises a 17.5% discount on the fees for electricity usage and supply charges (save that it does not apply to the first $171.60 of the annual bill).
The “Medical Cooling Concession” (‘MC Concession’) only applies during the period 1 November and 30 April of each year (that is, the warmer months). During that period, the MC Concession allows for a further discount of 17.5% to be applied in respect of an account holder’s “mains domestic electricity usage and service costs”, in addition to the 17.5% AE Concession.[47]
[47] Concessions Guide, p.18.
Excess Electricity Concession
The Concessions Guide states that households with very high electricity bills for electricity usage and service costs (over $3,563.00 in the year, starting 1 December 2020) will need to apply for the “Excess Energy Concession” (‘EE Concession’) to continue to receive a concession on their bill when it exceeds this figure.[48] The EE Concession will be applied as an effective continuation of the AE Concession, that is, a discount of 17.5% will applied to the bill including the part of it which exceeds $3,563.00 annually. The application of the EE Concession requires the account holder to provide a declaration that the electricity in the home is being used for domestic purposes only. This declaration does not need to be provided if the person is already receiving either the “Life Support Concession” (‘LS Concession’) or the MC Concession under the Victorian concessions program.[49] However, in Mr Deayton’s case, based on an extrapolation of the total monthly electricity charges recorded on the Electricity Bill, the Tribunal finds that Mr Deayton’s annual electricity charges is not expected to exceed the prescribed $3,563.00 per annum. For this reason, the Tribunal considers that the EE Concession is not a relevant support that requires any further consideration in this matter, because it is unlikely, based on the charges recorded in the Electricity Bill, that circumstances will arise where Mr Deayton may be eligible to apply for and receive the EE Concession.
[48] Ibid, p.13 & p.14.
[49] Concessions Guide, p.15.
Essential Medical Equipment Payment
A person may also be eligible to receive a further Commonwealth Government-funded “Essential Medical Equipment Payment” (‘EME Payment’) being a lump sum paid annually provided the person holds a Commonwealth Concession Card and they have higher-than-average energy costs because they rely on essential (eligible) medical equipment in their home or they medically require heating or cooling at home to manage a disability or medical condition.[50] This program is administered by Services Australia. This lump sum payment will comprise $191 per year for each of the following:
(a)“heating or cooling used for medical needs”;
(b)“each piece of eligible essential medical equipment”. The eligible equipment does not include door automation devices or Chilli Sleep mats which are powered by electricity.[51]
[50] Ibid, p.47 and link embedded in Document A3 of the NDIA’s Supplementary HTB. The definition of “eligible equipment” does not include the hoist referred to by Mr Deayton as being one of his stated reasons for the excessive electricity consumption.
[51] under the heading “Eligible equipment”, as referred to on page 47 of the Concessions Guideline.
NDIA’s Contentions
In the NDIA’s SFIC, it contends the Tribunal cannot be satisfied that the “excess electricity costs” are “most appropriately funded though other service systems, because the evidence does not establish whether the Applicant is currently receiving electricity subsidies such as the [MC Concession], which is available for people with a condition that affects the body’s ability to regulate”.[52] The NDIA refers to references in a previous Tribunal decision arising from an earlier application for review made by Mr Deayton,[53] to Mr Deayton having previously received the MC Concession, but that it was not clear whether he continued to do so.[54] At the hearing, Mr Deayton confirmed he does receive the MC Concession.[55]
[52] NDIA’s SFIC, [46.6.2].
[53] Re Deayton and National Disability Insurance Agency [2021] AATA 1506.
[54] NDIS’s SFIC, [46.6.2].
[55] Transcript, P-26 & P-27.
In the NDIA’s Outline, the NDIA asserts that Mr Deayton can claim both the AE Concession and the MC Concession at the same time. This means that Mr Deayton receives a 17.5% deduction from his electricity usage and supply charges all year around by application of the AE Concession, and for a limited period, between November and April, he receives, or is eligible to receive, a total deduction of 35% by applying both the AE Concession and the MC Concession.
The NDIA subsequently re-framed its contention regarding s 34(1)(f) of the NDIS Act.[56] The NDIA contends that the use of the word “services offered” as appearing in s 34(1)(f) indicates that a relevant consideration is whether the support for additional heating costs arising from his disability is “offered” to Mr Deayton.[57] The NDIA contends that the Electricity Support is “offered” to Mr Deayton, in the form of the MC Concession and if necessary, the EE Concession.[58]
[56] NDIA’s Outline, [6].
[57] Ibid, [6a.].
[58] Ibid.
The Tribunal notes that the MC Concession is not a support “offered” to Mr Deayton in “support for additional heating costs”. The MC Concession is for the purpose of cooling only as apparent from its name “Medical Cooling Concession” and its availability is limited to the warmer months of the year. In this proceeding, Mr Deayton’s evidence at the hearing of this application, was focussed on the challenges he experiences keeping warm, rather than staying cool.
In the NDIA’s Outline, it contends that the criterion under s 34(1)(f) of the NDIS Act is not met, for the following reasons:[59]
(a)“the State Government provides relief from electricity bills in circumstances where a person (who holds a concession card) has electricity costs higher due to medical needs: the medical cooling concession and the life support concession”;[60] and
(b)“the calculation of the electricity usage directly related to [Mr Deayton’s] disability is very difficult. The appropriate support is therefore a subsidy, already provided by the State, rather than a precise support through the NDIS”.[61]
[59] Ibid, [6].
[60] NDIA’s Outline, [6b].
[61] Ibid, [6c].
Will the principle in Foster result in a duplication of supports, as contended by the NDIA?
The Tribunal accepts that as a general proposition, if a person is already receiving a particular disability-related support, it would not be effective or beneficial for them to be funded for that same support under the NDIA.
The NDIA, in support of its contention set out in the paragraph [94] above, refers to paragraph [98] of the decision in the Full Court of the Federal Court in National Disability Insurance Agency v Foster [2023] FCAFC 11 (‘Foster’),[62] which states as follows: “The passage also contemplates that Mr Foster should not “be confined” to obtaining support from the CAPS scheme only, implying that he could be funded under both schemes. To the extent that the Tribunal made such a finding, it was in error. There is no scope for support to be partially funded under the NDIS. Once the CEO has formed a state of satisfaction about whether a support is “reasonable and necessary”, and not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body” (s 34(1)(f)), it must be fully funded: McGarrigle v National Disability Insurance Agency [2017] FCA 308; 252 FCR 121 at [94] per Mortimer J”. The NDIA contends that this observation in the Foster decision stands as authority for the proposition that “the NDIA funds support in full, or not at all”.[63] In Mr Deayton’s context, the NDIA contends that “if the support were funded under the NDIS, there would be a duplication of supports”.[64] The Tribunal does not accept the NDIA’s proposition because in the context of Mr Deayton’s application, any electricity concessions are applied, to his electricity usage fees before being charged to him. Mr Deayton is not, in fact, charged for those amounts. It is not the case that he would receive an amount under the State-based scheme to reimburse him for a component of his electricity usage fees and also receive an amount of NDIS funding for those usage fees. There will be no duplication as Mr Deayton is not charged for a certain component of his excess electricity usage fees by operation of the concessions or deductions under the State-based scheme before the bill is rendered by Origin Energy to Mr Deayton.
[62] Ibid, [6a].
[63] Ibid.
[64] Ibid.
At the hearing, the Tribunal acknowledged that Mr Deayton had taken steps to contact Origin Energy (which is his electricity and gas provider) in the week prior to the hearing in reference to the MC Concession. Mr Deayton gave evidence that Origin Energy had written to him to confirm that the concession had “been valid” on his Origin Energy account since 14 August 2007. When asked by the Tribunal whether he had been in receipt of the applicable concessions, Mr Deayton answered in the affirmative.[65] The Tribunal notes that this concession has been factored in to Mr Deayton’s request for additional funding for increased electricity costs.[66] Mr Kenneally asserted that this this was incorrect, or not how he understood Mr Deayton’s request. Mr Kenneally referred to paragraph [44] of Mr Deayton’s Submissions.
[65] Transcript, P-27.
[66] Ibid, P-28.
Mr Kenneally acknowledged, at the hearing, that the calculation of the electricity usage directly attributable to Mr Deayton’s disability is “very difficult” and that “the appropriate support is there for a subsidy, already provided by the State, rather than a precise support through the NDIS”.[67] The Tribunal put a proposition to Mr Kenneally that it is also difficult to quantify a participant’s transport support if requested, but the NDIA would seem to deal with this by specifying three different levels of transport support, and by applying one of them to a participant’s case. Mr Kenneally accepted that this point presents a difficulty to the NDIA’s contention that the Electricity Support is more appropriately funded under the Victorian concessions program and not most appropriately funded under the NDIS, due to the difficulty in calculating the precise quantum of this type of support.[68]
[67] NDIA’s Outline, [6].
[68] Transcript, P-50.
In McGarrigle, Mortimer J made the following observations (emphasis added):
[93]In my opinion, the text and context of s 33(5)(c), read with s 34(1) indicates that the CEO (or the delegate or Tribunal) must either be satisfied that a support has the character of being a reasonable and necessary support, or that it does not. Once a support is identified and described (to take an example away from this case, speech therapy lessons three times a week), then the question for the CEO (or the delegate or Tribunal) is whether she or he is satisfied that support, as identified, is reasonable and necessary for that particular participant. It may be open to the CEO to be satisfied that a differently identified support is reasonable and necessary: in this example, speech therapy lessons once a week. That determination can only be made on the basis of probative evidence.
The scheme contemplates full funding of reasonable and necessary supports
[94]Once a decision is made that the support, as identified and described, is reasonable and necessary, then subject to the other requirements in s 33(5) and s 34, the scheme requires and contemplates that support “will” be funded. In my opinion, that can only mean wholly or fully funded.
[95]The subject matter of the CEO’s approval in s 33(2)(b) is the reasonable and necessary supports that “will” be funded. The language is imperative, and in my opinion this is consistent with the applicant’s contention that the relevant gateway established by the legislative scheme is whether the support is “reasonable and necessary”, and once through that gateway, the scheme intends the support will be fully funded. There are no references in these provisions to “contributions” from the participant, the participants’ family or carers. I have explained, in my opinion, how s 34(1)(e) is intended to operate: that is, it is intended to operate at the stage of the CEO (or the delegate or Tribunal) forming a state of satisfaction about what are “reasonable and necessary supports”. It is not intended to ask the decision-maker to assess whether any of the persons in para (e) are capable, or willing, to make a financial contribution towards the proposed support. That is made especially clear by the inclusion in the list in para (e) of the “the community”. Parliament did not intend the decision-maker to ask, in forming a state of satisfaction, whether the community could or should make a financial contribution to the funding of a support found by the decision-maker to be reasonable and necessary in order for the participant to work towards the goals, objectives and aspirations set out in the participant’s plan.
[96]The Agency’s submissions seek to place a gloss on the provisions by reference to the concept of contributions. The consequence of such a construction was set out in the applicant’s submissions (at [29]), which I accept:
The alternative construction has the potential to undermine the objects of the NDIS Act. In circumstances where a support has been found to be both ‘reasonable and necessary’, it would be inconsistent with the purpose of the scheme for such a support to be made effectively conditional on either the provision or the funding by another person of a portion of the relevant support. The obvious consequence would be that, if the other person were unable or unwilling to make that contribution, the participant could be deprived of the support in its entirety. Contrary to the Tribunal’s reasoning, this problem is not confined to ‘supports which, by their nature, are rendered of little or no benefit if only partly funded’ or ‘supports which, by their nature, cannot be provided or supplemented by families or other informal supports’.
(Footnote omitted.)
[97] I do not consider there is anything inconsistent in the Rules with this approach. I accept as the respondent submitted, that the Tribunal was correct to look at r 3.4 (see [41] of the Tribunal’s reasons) in the context of considering s 34(1)(e). While the arguments put to the Tribunal on behalf of the applicant about the application of this rule (see [43]-[44] of the reasons) might have been creative, the salient point is that the content of r 3.4 is directed at the activity or assistance which family or carers might provide, or which might be otherwise available – so that the participant does not need the support proposed, nor does not need it to the same extent or level. I do not consider that r 3.4 is concerned with the funding of the support: rather, it is concerned with how the participant can access the practical assistance required, thus requiring the decision-maker to consider whether that access is available through other sources rather than funding it by the Agency pursuant to the participant plan. As I have noted elsewhere in these reasons, this is an important distinction because it makes the task of the decision quite different. The decision-maker must examine the realistic and reasonable capacity of others to provide the support – feasibility, continuity, suitability – and must decide, in a rational and reasonable way, based on probative material, whether or not there is, in fact, capacity for others to provide the support to the participant that is needed.
[98]I do not accept the respondent’s submission (at [34] of its written submissions) that the applicant’s construction involves an “all or nothing” approach, which is too inflexible to be the correct constructional choice for a scheme such as the NDIS. Rather, the applicant’s approach, with which I agree, focuses on the point of time at which, and the way in which, a decision-maker assesses when a support will be both reasonable and necessary. It does not require a decision-maker to either accept “all” of the support proposed or “nothing” of the support proposed. However, the scheme does contemplate that whatever support the decision-maker determines is reasonable and necessary is the support which will be fully funded. In this case, the Tribunal accepted that five days’ transport for Mr McGarrigle was a reasonable and necessary support: having done that, it could not determine that support should only be funded to 75% of its cost. Its function under ss 33 and 34 is not to determine funding proportions. Its function, relevantly, was to determine what supports were necessary and reasonable, in the way I have set out at [93] above. The difference is material, in terms of the way it must perform that task, and the probative material it would need to consider in order to be satisfied a proposed support was not “reasonable and necessary”.
[99]Contrary to the respondent’s submission, I do not consider this diminishes the choice available to people with disability who participate in the NDIS. Persons with disability, and their carers and families, are able to propose what they consider necessary and reasonable in the participant plan. Ultimately, the legislative scheme reposes the approval function in the CEO but through the two-tiered review process there will be opportunities to persuade the decision-maker why the supports suggested should be approved. Rather, in my opinion, the respondent’s construction – of a partial funding approval being open to the CEO (or the delegate or Tribunal) is likely to be an approach which restricts choice for persons with disability, if this be a permissible consideration.

Based on those objectives and guiding principles, the Tribunal is satisfied that the Powerchair Events Support could be a reasonable and necessary support in respect of Mr Deayton and his individual circumstances, in light of the provisions of the NDIS Act as a whole.
The Tribunal will now proceed, as a second stage, as articulated in the decision of Public Trustee of South Australia to consider whether each of the mandatory criteria in provided the criteria under s 34(1) of the NDIS Act are met.
Stage Two: Whether the Powerchair Events Support meets the criteria under s 34(1) of the NDIS Act
Section 34(1)(a) – goals and aspirations
One of Mr Deayton’s goals in his NDIS plan is to “maintain and enhance his social networks, have more opportunities to access community activities and participate in recreational and sporting activities”. The Tribunal is satisfied that the Powerchair Events Support will assist Mr Deayton to pursue this goal. The Tribunal concludes that the criterion under s 34(1)(a) of the NDIS Act is met in relation to this support.
Section 34(1)(b) – social and economic participation
Section 34(1)(b) of the NDIS Act provides that the Tribunal must be satisfied that the requested support “will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation”. It would appear clear that the Powerchair Event Support if provided to him will assist Mr Deayton to undertake activities so as to facilitate his social and economic participation. It will allow him to engage socially with his Powerchair hockey or football teammates, competitors, and the organisers of the Powerchair events, some of which he has known for a long period of time. The Tribunal is satisfied this will also facilitate Mr Deayton’s economic participation as a consumer when paying for his own travel and other expenses to attend an interstate Powerchair event.
This criterion is met.
Section 34(1) (c) – value for money
Section 34(1)(c) of the NDIS Act provides that the Tribunal must be satisfied that the requested 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” and that the matters in Rule 3.1 of the Support Rules (as set out above) are considered.
The Tribunal understands from the NDIA’s submission by email on 12 September 2024 that the NDIA accepts the Mr Deayton’s attendance at the Powerchair events would provide him with “social benefits”. However, the NDIA states that its “concession” in this regard, is confined to one event per annum. The Tribunal understands the NDIA to be contending that the provision of funding for supports to enable Mr Deayton to attend one Powerchair event per annum is reasonable and would represent value for money but to provide those support to enable him to attend two events per annum is not. The Tribunal agrees with this proposition. The Tribunal considers that funding for the cost of supports to enable Mr Deayton to attend one Powerchair event per annum is value for money and would constitute a “reasonable” support to Mr Deayton as intended by the NDIS. The Tribunal considers that the provision of such a support to Mr Deayton twice a year is excessive and would not constitute a “reasonable” support.
The other significant issue that arises is the question of how the support to enable Mr Deayton to attend a Powerchair event should be quantified. Mr Deayton requests funding for the cost of his regular support worker to travel with him from Melbourne to the championship and to remain at the event destination for the duration of the event. Mr Deayton requests funding for the cost of the support workers airfares, accommodation, meal, incidental and other expenses as referred to above.
In the NDIA’s Supplementary Submission, the NDIA contended that the incidental costs claimed by Mr Deayton for his regular disability support worker to travel with him to the Powerchair event, does not satisfy s 34(1)(c) of the NDIS Act, because there are lower cost alternatives available to Mr Deayton. Specifically, the NDIA contended that it would be open to Mr Deayton to hire a disability support worker at the event destination to provide support to him during the period of the interstate club championship.
In its subsequent submissions on 12 September 2024, the NDIA states that it now accepts that Mr Deayton requires support worker assistance for travel by airplane from Melbourne to the event destination. This was a contested matter at the hearing. The NDIA is now proposing that funding be provided in Mr Deayton’s plan to pay for a support worker to make a return journey (on the same day presumably) to accompany Mr Deayton at the start of this event, on his journey from Melbourne to the event destination and again, at the end of the event from the event destination back to Melbourne. The NDIA suggests that $800 is a sufficient amount to pay for these two returns airfares, with which the Tribunal agrees.
The NDIA contends that the incidental costs (such as disability support worker accommodation and meal expenses) to facilitate Mr Deayton’s regular disability support worker remaining at the event destination for the duration of the Tournament, does not satisfy s34(1)(c), because the NDIA contends there are lower cost alternatives available to Mr Deayton.
In Mr Deayton’s Closing Statement, he sought to explain why he requires a support worker to assist him with more activities if he is living away from his usual home environment. This evidence was, in effect, as follows:
(d)Mr Deayton states his present home and the equipment and day-to-day items in it, are set up for his needs. He said they are set at the right height, location and setting. He gave an example being the hot water dispenser being at the appropriate level and location which he is able to use without assistance, and there are level taps;
(e)Mr Deayton said that when he is in a different environment he requires assistance for his everyday needs, including meals, dressing, showering, toileting, and transfers. He said the equipment is not there and there is a difference from his own home setup. He says he requires 24 hour assistance. He said that something simple such as the height of the bed and the coverings can make a “big difference as to whether I can manage it myself or I need assistance to roll over or to pull up the covers”; and
(f)Mr Deayton asserts that the support worker will “get paid an 8 hour day but are on call for 24 hours”. He said he requires assistance with attaching and detaching “equipment” “during the sports”.
The Tribunal accepts that Mr Deayton should be accompanied by a support worker when he makes the journey from his home to the event destination and also when returning after the event. The Tribunal is satisfied that the $800 proposed by the NDIA would be sufficient to pay for two return airfares for the support worker to accompany Mr Deayton on those journeys, based on the indicative quotes for airfares provided by Mr Deayton.
The Tribunal was unable to identify from Mr Deayton’s evidence any clinical justification as to why he needs to have his regular Melbourne-based support worker assist him, rather than being assisted by a local support worker, during his stay at the event destination. By using a local support worker, as the NDIA contends, this will obviate any requirement to pay a Melbourne-based support worker for meals and other incidental allowances, which are significant in quantum, according to the basis upon which Mr Deayton makes his request for those costs.
As for the question of how many hours of support worker assistance Mr Deayton will require once he arrives at the event destination and participates in a multi-day Powerchair event, the Tribunal notes that Mr Deayton does not seem to anticipate that his support worker would be paid for more than eight hours per day – refer paragraph [214(c)] above, while at the same Mr Deayton appears to suggest that he will need 24 hours per day of assistance – refer paragraph [214(a)] and [214(b)]. The Tribunal accepts that Mr Deayton’s need for support worker assistance might be higher than usual by reason of him being in a different environment using different assistive equipment and with things placed differently to how he has them at his home. However, Mr Deayton is making this trip for a specific reason and will be spending a lot of his time at the actual Powerchair tournament. The Tribunal accepts that Mr Deayton may require some assistance while he is at the tournament and Mr Deayton gave evidence about this as referred to in paragraph [214(c)]. However, the Tribunal expects that for most of the time, Mr Deayton will be socialising with others at the tournament and will not require direct personal assistance. The Tribunal finds that Mr Deayton requires an aggregate of eight hours of support by a support worker per day at the daytime rate for the duration of his stay at the event destination for one Powerchair event per annum.
As for the hire of a temporary hoist or commode for Mr Deayton’s stay at the event destination, the NDIA highlights that Mr Deayton’s current Capital Budget includes $1,000.00 for the short-term rental or minor trial of assistive technology equipment and that, “This budget can be utilised flexibly whilst the Applicant is attending the Tournament, if the hire of assistive technology is required”. The Tribunal is satisfied that the provision of support to Mr Deayton to enable him to attend a Powerchair event was not contemplated at the time his previous plan was approved. As such, the Tribunal considers it appropriate to include additional funding in his new SOPS, as a “Stated Support”, to pay for the cost of temporary hire of the hoist and commode for his use, specifically, on one trip per annum to attend a Powerchair event. The Tribunal is satisfied that the quote provided by Mr Deayton for this temporary hire, in the amount of $350.00, is a reasonable amount and represents value of money.
This criterion is met.
Section 34(1)(d) – effective and beneficial
The Tribunal must be satisfied that the Powerchair Events Support for Mr Deayton would be effective and beneficial for him, having regard to current good practice. Based on the matters set out in paragraphs [206] and [209], the Tribunal is satisfied that the provision of the support to enable Mr Deayton to attend one Powerchair event per annum would be effective and beneficial to him.
This criterion is met, to the extent of funding to be provided to Mr Deayton to enable him to attend one Powerchair event per year (that is, $800 for two return airfares to pay for a support work to accompany him on the journey from Melbourne to the event destination, return; the cost of a local support worker assisting him for eight hours per for the duration of this trip; and $350 for the temporary hire of a hoist and commode).
Section 34(1)(e) – takes into account what is reasonable to expect families, carers, informal networks, and the community to provide
The NDIA contends that the component of the Powerchair Events Support, being his request for support worker assistance, could, in part, be provided by Mr Deayton’s informal networks, or the community, specifically, by members of the association providing some assistance to him while his is away at the club championships. Mr Deayton would be reliant upon the good will of others to step in to assist him which will impinge upon his sense of independence. The Tribunal does not consider it to be reasonable to expect the association to provide support to Mr Deayton while he is participating. There is no evidence before the Tribunal as to the resources and capacity of this association to be able to do so. It is not known whether and to what extent there might be individuals at those events who are willing, and/or able, to assist him as a support worker is able to. The Tribunal considers that the funding sought for this support should not be reduced upon factoring in any support that individuals involved in the association might be able provide to Mr Deayton.
The Tribunal concludes that this criterion is met.
Section 34(1)(f) – support is most appropriate funded or provided through the NDIS and not more appropriately funded or provided through other general systems
Section 34(1)(f) of the NDIS Act provides that the CEO (or the Tribunal upon review) must be satisfied that (emphasis added):
…the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through some other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
1As part of universal service obligation; or
2In accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
There was no suggestion that this support might be more appropriately funded or provided through some other general system. This criterion is met.
Conclusion in relation to the Powerchair Events Support
The Tribunal concludes that all of the criteria under s 34(1) of the NDIS Act are met in relation to funding to enable Mr Deayton to attend one Powerchair event per year (that is, $800 for two return airfares to pay for a support work to accompany him on the journey from Melbourne to the event destination, return; the cost of a local support worker assisting him for eight hours per for the duration of this trip; and $350 for the temporary hire of a hoist and commode).
CONSIDERATION OF PLAN DURATION
The NDIA contends that the plan duration should be six months so that it may monitor the expenditure of the funding given the issues that arose previous regarding expenditure for the Foxtel subscription. Mr Deayton would like the plan duration to be 12 months, ideally.
The Tribunal considers it appropriate that the notional plan duration be 12 months. This will allow for a settling in period of the new suite of supports and the change of the plan management settings. It will also allow an opportunity for the NDIA to review the progress reports provided in relation to the physiotherapy, massage therapy and occupational therapy, once Mr Deayton re-engages with those interventions.
CONCLUSION
The Tribunal sets aside the decision under review and remits this matter to the NDIA with a direction that a new SOPS be approved for Mr Deayton, which contains the following provisions:
(a)a provision to specify that the new SOPS is to be reassessed by the Respondent 12 months after the date upon which it is approved (‘Reassessment Date’);
(b)a provision to approve funding for Mr Deayton in respect of the following supports:
(i)as a “Stated Support”, the cost of excessive electricity usage by Mr Deayton resulting from the use of equipment by reason of his disability, being an amount equivalent to the total monthly amounts charged to Mr Deayton (that is, after any Victorian-based concessions have been applied and deductions made, as recorded on those bills) over the previous 12-month period, in respect of the electricity usage in excess of 7.34 kWh per day, and minus any lump sum payment made to Mr Deayton by the Commonwealth for an Essential Medical Equipment Payment;
(ii)as a “Stated Support”, funding for 56 hours of physiotherapy (which includes four hours to prepare a written progress report to be lodged with the NDIA before the Reassessment Date);
(iii)as a “Stated Support”, funding for 27 hours of remedial massage therapy (which includes one hour to prepare a written progress report to be lodged with the NDIA before the Reassessment Date);
(iv)as a “Stated Support”, funding for 28 hours of occupational therapy (which includes four hours to prepare a written progress report to be lodged with the NDIA before the Reassessment Date);
(v)as a “Stated Support”, the cost per annum of providing Mr Deayton with access to Foxtel sports channels being an amount equivalent to 50% of the total amount Mr Deayton is currently charged by Foxtel for his current yearly “full package” Foxtel subscription;
(vi)as a “Stated Support”, $800 per annum to fund two economy return airfares for a support worker to accompany Mr Deayton as he travels to one Powerchair championship per annum (whether that be hockey or football), and to accompany him when he returns home after the event;
(vii)as a “Stated Support”, the following costs associated with providing a local support worker to assist Mr Deayton at his temporary accommodation while attending one Powerchair event per annum (likely to take place from a Thursday to a Monday inclusive, based on the previous programs for such events):
· 27 hours for one support worker at the daytime weekday rate to provide assistance to Mr Deayton in respect of the Thursday, Friday, and Monday;
· 16 hours for one support worker at the daytime weekend rate to provide assistance in respect of the Saturday and Sunday;
(viii)as a “Stated Support”, $350 for the cost of temporary hire of a hoist and commode including delivery and collection at the accommodation where Mr Deayton will be staying when attending one Powerchair event per annum;
(ix)as a “Stated Support”, transport supports in the amount of $7,306 per annum to be paid to Mr Deayton on an ongoing fortnightly basis (as from 9 September 2022, as agreed between the Parties);
(x)as a “Stated Support”, the cost of Mr Deayton’s annual subscription to RACV Roadside Assist for a Wheelchair being $25.50 per annum (as from 9 September 2022, as agreed between the Parties); and
(xi)as a “Stated Support” (and subject to the NDIA obtaining a quote), the costs associated with the registration and attendance by Mr Deayton within the next three months, to attend a training course in respect of the self-management of a NDIS plan so that he may better understand a participant’s obligations under s 46 of the NDIS Act when doing so; and
(xii)replication, on a pro-rata basis, of all other existing supports in Mr Deayton’s current SOPS (except for any one-off supports where the funding for such support has already been expended, and except for the previous funding approved for physiotherapy and “other professional” which has been replaced by the funding under paragraphs 229(b)(ii) to (iv) above), minus his current funding for support worker assistance for a period of five days as this will not be required during the five-day period when Mr Deayton will be in attendance at one Powerchair championship per annum, at which time he will have access to the supports referred to in paragraph [229(b)(vii)] above;
(c)a provision specifying that the funding in this NDIS plan is to be “self-managed”; and
(d)a provision specifying that it will be open to the NDIA to request invoices from Mr Deayton over the duration of this NDIS plan, to audit the expenditure by him to ensure it aligns with his NDIS plan. If there are found to be any irregularities or that funds are spent on supports, which are not identified in the new SOPS or which the NDIA has advised Mr Deayton are not “reasonable and necessary supports”, it will be open to the NDIA to undertake an unscheduled plan review under s 48 of the NDIS Act and to approve a new SOPS for Mr Deayton which may change the specifications in relation to being “plan-managed” or “Agency-managed”.

I certify that the preceding 229 (two hundred and twenty nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Parker

..................[SGD]...............
Associate
Dated: 16 September 2024

Dates of hearing: 4 & 13 March 2024

Date final submissions received: 12 September 2024

Applicant: In person, with support from his support worker

Counsel for the Respondent: Matthew Kenneally

Solicitors for the Respondent: Jessica Summers, Maddocks Lawyers &
William Crooks, NDIA case manager

Dates of hearing:	4 & 13 March 2024
Date final submissions received:	12 September 2024
Applicant:	In person, with support from his support worker
Counsel for the Respondent:	Matthew Kenneally
Solicitors for the Respondent:	Jessica Summers, Maddocks Lawyers & William Crooks, NDIA case manager