DQRG and National Disability Insurance Agency

[2024] AATA 3595

DQRG and National Disability Insurance Agency [2024] AATA 3595 (2 October 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/8362

Re:DQRG  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member L Proske

Date:2 October 2024

Place:Adelaide

Pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) the decision under review is set aside and the matter is remitted to the Respondent for reconsideration in accordance with a direction that DQRG’s statement of participant supports specifies for Specialist Disability Accommodation as follows:

SDA type:  New Build
Building type:   Villa, duplex and townhouse, 1 resident
Design category:                   High Physical Support
Location:  QLD – Townsville – Queensland
Onsite overnight assistance:  Yes
Fire sprinklers:   Yes

..............[sgnd]..........................................................

Member L Proske

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – Specialist Disability Accommodation – SDA building type – SDA Rules – SDA Price Guide – reasonable and necessary – decision under review set aside and remitted for reconsideration

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth)
Legislation Act 2003 (Cth)

Cases

Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Frugtniet v Australian Securities and Investment Commission [2019] HCA 16
McGarrigle v National Disability Insurance Agency [2017] FCA 308
QKNJ and National Disability Insurance Agency [2023] AATA 794

REASONS FOR DECISION

Member L Proske

BACKGROUND AND JURISDICTION

1. The Applicant (DQRG) became a participant of the National Disability Insurance Scheme (NDIS) on 26 November 2019.[1]  DQRG has been diagnosed with dementia (Alzheimer’s type) and Complex Regional Pain Syndrome (CRPS).[2]

   [1] Respondent’s Statement of Facts, Issues and Contentions (RSFIC), [1.1].

   [2] RSFIC, [1.1].

2. On 20 June 2022, the Chief Executive Officer (CEO) of the National Disability Insurance Agency (Respondent) approved a statement of participant supports (SOPS) under DQRG’s plan (original decision).[3] That SOPS specified the reasonable and necessary supports that will be funded for DQRG under the NDIS during the period 3 June 2022 until 3 June 2023.[4] Those funded supports included Specialist Disability Accommodation (SDA) up to $43,726.18 per year for a 2 bedroom 2 resident apartment in the fully accessible design category.[5]

   [3] Exhibit 1 (E1), T1A, 6-11.

   [4] E1, T14, 283-295.

   [5] E1, T14, 293.

3. On 22 July 2022, DQRG requested that the original decision be reviewed.[6] Specifically, DQRG sought funding for a 1 resident villa/duplex/townhouse in the high physical category with onsite overnight assistance.[7] On 9 September 2022, a reviewer confirmed the original decision (internal review decision).[8]

   [6] E1, T10, 43-67. This request was made under s 100(2).

   [7] E1, T10, 46.

   [8] E1, T1A, 6-11. This internal review decision was made under s 100(6).

4. On 6 October 2022, DQRG made an application to the Tribunal for review of the internal review decision.[9] The Tribunal has jurisdiction to review the internal review decision under s 103(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), in combination with s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).[10]

   [9] E1, T1, 1-5.

   [10] All sections referred to in these reasons for decision, including in the footnotes, are sections of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), unless otherwise stated.

5. On 20 February 2024, the Respondent conducted a reassessment of DQRG’s plan under s 48 and approved a SOPS for the period 20 February 2024 until 20 August 2024.[11] On 16 August 2024, the Respondent approved a further SOPS for the period 16 August 2024 until 16 February 2025. DQRG’s 3 June 2022 and 20 February 2024 plans each ceased upon the approval of a subsequent plan.[12] Pursuant to s 103(2), the application is also taken to be an application for review of the decision to approve the SOPS in DQRG’s new plan.

   [11] RSFIC, [1.5]; E1, 4.1, 415. On 19 August 2024, the Respondent emailed the Tribunal and DQRG a copy of DQRG’s plan commencing 16 August 2024.

   [12][12] s 37(3).

ISSUE ON REVIEW

1. DQRG asserts that her SOPS should include funding for SDA; and that the amount of funding specified in her SOPS for SDA should be based on the following:[13]

   SDA type:  New build
   Building type:  House, 2 bedrooms, 1 resident
   Design category:                   High physical support
   Location:  QLD – Townsville – Queensland
   Onsite overnight assistance:  Yes
   

   [13] E1, 3.2, 411.

   Fire Sprinklers:   Yes

2. The Respondent accepts that DQRG is eligible for SDA funding under Part 2, Division 2 of the SDA Rules;[14] and asserts that the amount of funding specified in her SOPS for SDA should be based on the following:[15]

   SDA type:  New build
   Building type:  Villa, duplex and townhouse, 1 resident
   Design category:                   High physical support

   Location:  QLD – Townsville – Queensland

   Onsite overnight assistance:  Yes
   

   [14] RSFIC, [2.1].

   [15] RSFIC [2.5]; Respondent’s Closing Submissions (RCS), [24].

   Fire Sprinklers:   Yes

3. The only clear point of contention between the parties is whether the amount of funding specified in DQRG’s SOPS for SDA should be based on an SDA building type of ‘house’ or ‘villa, duplex, townhouse’. 

LEGISLATION AND POLICY

1. Section 32(1) requires that if a person becomes a participant of the NDIS, the CEO must facilitate the preparation of the participant’s plan. Sections 33(1) and 33(2) provide that a participant’s plan must include the participant’s statement of goals and aspirations and SOPS. In deciding whether or not to approve a SOPS under s 33(2), s 33(5) provides that the CEO must:

(a)have regard to the participant’s statement of goals and aspirations; and

(b)have regard to relevant assessments conducted in relation to the participant; and

(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and

(d)apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and

(e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and

(f)have regard to the operation and effectiveness of any previous plans of the participant.

10.  Section 34(1) provides that:

For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

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 National Disability Insurance Scheme, 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.

1. Under s 209(1) the Minister may make rules prescribing certain matters; and s 35(1) provides that:

The National Disability Insurance Scheme rules may make provision in connection with the funding or provision of reasonable and necessary supports or general supports, including but not limited to prescribing:

a)methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding, the reasonable and necessary supports or general supports that will be funded or provided under the National Disability Insurance Scheme; and

b)reasonable and necessary supports or general supports that will not be funded or provided under the National Disability Insurance Scheme; and

c)reasonable and necessary supports or general supports that will or will not be funded or provided under the National Disability Insurance Scheme for prescribed participants.

12.  Relevant to this application, the Minister has issued the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (SupportRules) and the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth) (SDA Rules) which are an important part of the legislative scheme.[16]

[16] McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle), [43].

13.  Operational Guidelines published on the NDIS website contain information about what the Respondent considers when making decisions under the legislative framework. These are essentially policy documents. The Operational Guidelines ‘Reasonable and Necessary Supports’, ‘What principles do we follow to create your plan?’ and ‘Specialist disability accommodation’, most recently updated on 6 October 2023, 25 September 2023, and 25 July 2022 respectively, are relevant to this application. The Tribunal will take these into account unless there are cogent reasons not to.[17]

[17] Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 420.

14.  The NDIS Pricing Arrangements for Specialist Disability Accommodation 2024-25 (SDA Pricing Arrangements), most recently released 28 June 2024, are also published on the Respondent’s website.[18] The SDA Pricing Arrangements contain further detail regarding the design categories and building types described in the SDA Rules; and sets out the price limits for particular SDA types and locations, including allowances for features.[19] The SDA Pricing Arrangements were previously known as the SDA Price Guide.

[18] NDIS, Pricing Arrangements for Specialist Disability Accommodation 2024-2025 (SDA Pricing Arrangements).

[19] SDA Pricing Arrangements, 5.

EVIDENCE AND SUBMISSIONS

15. The Respondent filed a hearing bundle on 3 July 2024. The hearing bundle included the T-Documents filed by the Respondent on 19 October 2024 under s 37 of the AAT Act; and evidence filed by DQRG during the review. The hearing bundle was received into evidence at the commencement of the hearing and marked ‘Exhibit 1’. Further documents tendered by the Respondent were received into evidence at the hearing, specifically:

a)NDIS, Pricing Arrangements for Specialist Disability Accommodation 2022-2023 (Valid from: 20 March 2023; Version 1.1; released 5 March 2023) (marked Exhibit 2)

b)NDIS, Pricing Arrangements for Specialist Disability Accommodation 2024-2025 (Valid from: 1 July 2024; Version 1.0; released 28 June 2024) (marked Exhibit 3).

16.  The Respondent filed a Statement of Facts, Issues and Contentions (Respondent’s SFIC) on 4 June 2024. DQRG filed a document in reply to the Respondent’s SFIC (DQRG’s Reply) on 27 June 2024; and a written opening statement (DQRG Opening Statement) on 8 July 2024.

17.  A hearing was conducted by Microsoft Teams on 10 July 2024. DQRG was self-represented. The Respondent was represented by Mr Nolan of counsel. DQRG and Ms CL gave oral evidence at the hearing.

18.  The Respondent and DQRG each filed written closing submissions on 15 July 2024 and 22 July 2024 respectively.

CONSIDERATION

19. As is noted above, it is not in contest between the parties that DQRG is eligible to receive support for SDA in accordance with Part 2, Division 2 of the SDA Rules. If a participant is assessed as eligible to receive support for SDA, the CEO, or the Tribunal on review, must determine the ‘SDA building type’ and the ‘SDA design category’ that is appropriate to support the eligible participant, as well as the area in which the SDA is to be located.[20]

[20] s 15(1) of the SDA Rules. Section 15 of the SDA Rules is replicated in full in the Annexure to these Reasons for Decision.

SDA design category

20. Section 17 of the SDA Rules provides that for the purposes of determining the SDA design category that is appropriate to support an eligible participant, the CEO, or the Tribunal on review, must have regard to the specific needs of the eligible participant.[21]

[21] s 17 of the SDA Rules is replicated in full in the Annexure to these Reasons for Decision.

21.  The parties agree that the SDA design category that is appropriate for DQRG is high physical support.[22] Having regard to the specific needs of DQRG as are apparent from the evidence before the Tribunal, the Tribunal has similarly determined that high physical support is the SDA design category that is appropriate to support DQRG.[23] Those specific needs include, but are not limited to, doors with a minimum clear opening width of 950mm to accommodate DQRG’s use of a wheelchair and/or up to 2 attendants for mobility; and structural provision for a ceiling hoist as has been recommended by several occupational therapists for DQRG’s transfers.[24] Those design requirements only apply to the SDA design category high physical support.[25]

[22] RCS, [24].

[23] ss 15(1)(b) and 17(1) of the SDA Rules.

[24] E1, T11B, 153, 155; T11D, 225-226; T11E, 235.

[25] NDIS, NDIS Specialist Disability Accommodation: Design Standard, Edition 11 Issue Date 25 October 2019, cls 4.2.3, 20.1 and 20.2.

22.  The parties similarly agree, and the Tribunal accepts, that funding for SDA in DQRG’s SOPS should be for a dwelling with onsite overnight accommodation (OOA) and sprinklers.

Location of SDA accommodation

23. Section 18 of the SDA Rules provides that for the purposes of deciding the area in which the SDA for an eligible participant is to be located, the CEO, or the Tribunal on review, must have regard to particular matters.[26]

[26] s 18 of the SDA Rules is replicated in full in the Annexure to these Reasons for Decision.

24.  The parties agree that the area in which DQRG’s SDA is to be located is QLD – Townsville – Queensland.[27] Having regard to each of the matters prescribed in s 18 of the SDA Rules and the evidence before the Tribunal, the Tribunal has similarly determined that QLD – Townsville – Queensland is the area in which the SDA is to be located.[28] In summary, Townsville is where DQRG wants to live, where she previously lived, and where she has established connections.[29] Residing in Townsville where DQRG has a history and other established connections would facilitate the continuation of such connections and DQRG’s increased social participation.

[27] RSFIC, [2.4]; RCS, [24].

[28] s 15(1)(c) of the SDA Rules.

[29] DQRG’s pre-hearing submission filed  (APHS), 3.

SDA building type

25. The SDA building type that is appropriate to support DQRG is the point of contention between the parties, and the issue on which this application turns. Section 16 of the SDA Rules provides that for the purposes of determining the SDA building type that is appropriate to support an eligible participant, the CEO, or the Tribunal on review, must have regard to particular matters.[30]

[30] s 16 of the SDA Rules is replicated in full in the Annexure to these Reasons for Decision.

1. DQRG contends that having regard to matters prescribed in s 16 of the SDA Rules, a sole occupancy 2-bedroom house is the SDA building type that is appropriate to support her and is reasonable and necessary in accordance with s 34.[31]  DQRG further contends that her housing needs are exceptional, not provided for in the current SDA Pricing Arrangements (formally known as the SDA Price Guide), and require an innovative SDA outcome  analogous to QKNJ and NDIA [2023] AATA 794 (QKNJ).[32] DQRG submits the SDA Pricing Arrangements are essentially policy and cannot act to usurp legislative provisions.[33]

   [31] DQRG’s Closing Submissions (ACS), [2], [10].

   [32] ACS, [2].

   [33] ACS, [8]–[9].

27. The Respondent contends that DQRG’s claim for funding for a sole occupancy 2-bedroom house cannot be funded under the NDIS as the current SDA Pricing Arrangements do not provide funding for sole occupancy houses, and therefore the SDA Rules prohibit the funding of that type of support.[34] Irrespective of that, the Respondent contends that a single occupancy villa, duplex or townhouse is the most appropriate SDA building type for DQRG and is reasonable and necessary in accordance with s 34.[35]

[34] RSFIC, [3.1]; RCS [17].

[35] RSFIC, [3.9]; RCS [23].

28. Section 5 of the SDA Rules provides that an SDA building type means a type of building set out in Schedule 1 to the SDA Rules. Schedule 1 to the SDA Rules provides that there are 4 SDA building types, those being apartment; villa, duplex and townhouse; house; and group home. The building types for which there are separate SDA prices in the current SDA Pricing Arrangements (formerly known as the SDA Price Guide), are as follows:

Apartment, 1 bedroom, 1 resident
Apartment, 2 bedrooms, 1 resident
Apartment, 2 bedrooms, 2 residents
Apartment, 3 bedrooms, 2 residents
Villa/duplex/townhouse, 1 resident
Villa/duplex/townhouse, 2 residents
Villa/duplex/townhouse, 3 residents
House, 2 residents
House, 3 residents
Group Home, 4 residents
Group Home, 5 residents
Legacy Stock, 6+ residents.[36]

[36] SDA Pricing Arrangements, 14 [50].

29. A question arising on review is whether, in circumstances where the current SDA Pricing Arrangements do not include a price for a 2-bedroom house with 1 resident as is sought by DQRG, do the SDA Rules prohibit that support from being funded under the NDIS. With respect to this, the Respondent submits that the SDA Price Guide (now known as the SDA Pricing Arrangements) is adopted by the SDA Rules and binding on the Tribunal.[37]

[37] RCS, [11].

30.  Section 209(1) provides that the Minister may, by legislative instrument, make rules called the NDIS Rules prescribing certain matters. Section 35(1) provides that the NDIS Rules may make provision in connection with the funding or provision of reasonable and necessary or general supports.[38] Part 2 of the SDA Rules is made for the purposes of s 35(1).[39] Section 9 of the SDA Rules provides a simplified outline of Part 2 of the SDA Rules. It states:

The SDA building type, SDA design category and location are used to determine the maximum amount that a participant can be funded under the National Disability Insurance Scheme. The amount is determined under the SDA Price Guide.[40]

[38] s 35(1) is replicated in full in paragraph [11] above.

[39] s 10 of the SDA Rules. Part 2 of the SDA Rules is also made for the purposes of ss 33(7), 34(2) and 209(2A): s 10 the SDA Rules.

[40] s 9 of the SDA Rules.

31. Section 15 of the SDA Rules provides that if a participant is assessed as eligible to receive support for SDA, the CEO, or the Tribunal on review, must determine the ‘SDA building type’ and the ‘SDA design category’ that is appropriate to support the eligible participant, as well as the area in which the SDA is to be located.[41] Note 2 under s 15 of the SDA Rules states:

‘The matters determined by the CEO under this section affect the amount of support that can be paid to an eligible participant for specialist disability accommodation. The SDA Price Guide sets out the maximum amount of support that is available for specialist disability accommodation.’

[41] s 15(1) of the SDA Rules. Section 15 of the SDA Rules is replicated in full in the Annexure to these Reasons for Decision.

32. Section 5 of the SDA Rules provides that the ‘SDA Price Guide’ means the publication known as the National Disability Insurance Scheme Price Guide for Specialist Disability Accommodation, published by the CEO, as in force from time to time. The Note under that defined term states that the SDA Price Guide could in 2020 be viewed on the NDIA’s website.

33. Section 14 of the Legislation Act 2003 (Legislation Act) to which s 209(2) refers, provides as follows:

14Prescribing matters by reference to other instruments

(1)If enabling legislation authorises or requires provision to be made in relation to any matter by a legislative instrument or notifiable instrument, the instrument may, unless the contrary intention appears, make provision in relation to that matter:

(a)by applying, adopting or incorporating, with or without modification, any of the following, as in force at a particular time or as in force from time to time:

(i)the provisions of an Act;

(ii)the provisions of a legislative instrument covered by subsection (3);

(iii)the provisions of rules of court; or

(b)subject to subsection (2), by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or writing as in force or existing at:

(i)the time the first‑mentioned instrument commences; or

(ii)a time before the first‑mentioned instrument commences (whether or not the other instrument is still in force, or the other writing still exists, at the time the first‑mentioned instrument commences).

(2)Unless the contrary intention appears, the legislative instrument or notifiable instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.

(3)The following legislative instruments are covered by this subsection:

(a)disallowable legislative instruments;

(b)legislative instruments that were disallowable under the Acts Interpretation Act 1901 or any other Act at any time before 1 January 2005.

Note:The substantive provisions of this Act commenced on 1 January 2005.

Forms

(4)If a legislative instrument or notifiable instrument provides for a form to be used, this section does not apply in relation to the form.

Note:This section has a parallel, in relation to instruments that are not legislative instruments, in section 46AA of the Acts Interpretation Act 1901.

34. The effect of s 14 of the Legislation Act is essentially that a legislative instrument may make provision in relation to a matter by applying, adopting or incorporating any matter contained in writing as in force or existing at the time, or at a time before, the legislative instrument commences;[42] but not any matter contained in writing as in force or existing from time to time, unless the contrary intention appears.[43] However, s 209(2) provides that despite section 14 of the Legislation Act, the NDIS Rules may make provision for or in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time. Accordingly, the NDIS Act expressly authorises the NDIS Rules to apply, adopt or incorporate any matter contained in a document as in force or existing from time to time. Section 209(3) provides that when making NDIS rules, the Minister must have regard to the objects and principles of the NDIS Act, and the need to ensure the financial sustainability of the NDIS.

[42] s 14(1)(b) of the Legislation Act 2003 (Cth) (Legislation Act).

[43] s 14(2) of the Legislation Act.

35.  In McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle) at [43] Mortimer J stated:

‘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 by s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS [emphasis added].’

1. The Tribunal accepts that the SDA Price Guide constitutes ‘any matter contained in … writing’ within the meaning of s 14 of the Legislation Act such that it could be adopted or incorporated into the SDA Rules. The Tribunal further accepts that through ss 5 and 9 of the SDA Rules, the SDA Rules do adopt or incorporate the SDA Price Guide as in force from time to time; and that despite s 14 of the Legislation Act, that adoption or incorporation is expressly permitted by s 209(2). The Note included under the term ‘NDIS Price Guide’ in s 5 of the SDA Rules and Note 2 included under s 15 of the SDA Rules, clarify the intention that the NDIS Rules, through their adoption or incorporation of the SDA Price Guide, set a limit on the amount a participant will be funded for SDA under the NDIS.

37. The Respondent submits that funding for a sole occupancy 2-bedroom house as is sought by DQRG is beyond the maximum amount for SDA that will be funded under the NDIS, and that decision, through the SDA Rules, to exclude funding for a house beyond 2 or 3 residents was a policy decision of the Executive.[44] Consistent with Mortimer J’s statement in McGarrigle as replicated at paragraph [35], the Tribunal agrees with that submission.

[44] RSFIC, [3.7].

38.  The Tribunal stands in the shoes of the decision-maker whose decision is under review; and exercises the same power or powers as the primary decision-maker, subject to the same constraints.[45] Whilst the Tribunal considers that application of the SDA Price Guide to determine the actual monetary amount of support available to DQRG for SDA would exceed its jurisdiction to review the decision to approve the SOPS in DQRG’s plan as this goes beyond consideration of the requirements in s 34 and determination of the matters in s 15(1)(a) to 15(1)(c) of the SDA Rules; that does not mean the Tribunal should have no regard to the SDA Price Guide. To the Tribunal’s mind, in determining the building type appropriate to support DQRG for the purposes of s 15(1)(a) of the SDA Rules, the primary decision-maker was required to consider the SDA Price Guide to the extent that it prohibits funding for particular SDA building types, in circumstances where the SDA Price Guide has been adopted or incorporated by the NDIS Rules. It follows that the Tribunal must similarly take that into account.[46]

[45] Frugtniet v Australian Securities and Investment Commission [2019] HCA 16 (Frugtniet), [51].

[46] Frugtniet, [51].

39.  The Tribunal has considered whether setting a cap on the maximum amount that can be funded for SDA is inconsistent with McGarrigle, in which it was held 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.[47] However, s 35(1)(b) expressly provides that the NDIS Rules may make provision in connection with the funding or provision of reasonable and necessary supports or general supports, including but not limited to prescribing reasonable and necessary supports or general supports that will or will not be funded or provided under the NDIS. Consistent with s 35(1)(b), the Tribunal considers the SDA Rules, by adopting the SDA Price Guide as in force from time to time, prohibit funding a SDA building type beyond limitations or caps specified in the SDA Price Guide. Relevant to this matter, whilst the current SDA Pricing Arrangements list a separate SDA price for a house, 2 resident and a house, 3 resident, it does not list a separate price for a house, 1 resident.[48] The exception to this is a dwelling shared with people who are not SDA-eligible participants, which is not an outcome sought by DQRG.[49]

[47] McGarrigle, [94]-[95].

[48] SDA Pricing Arrangements, 14 [50]; Annexure A to the SDA Pricing Arrangements, Table 8.

[49] Appendix H to the SDA Pricing Arrangements,

40.  The Tribunal has also considered DQRG’s contention that her housing needs are exceptional, not provided for in the current SDA Pricing Arrangements, and require an innovative SDA outcome analogous to QKNJ.[50] However, in QKNJ the Tribunal determined that an SDA house for 1 resident, 2 bedrooms was the appropriate, reasonable and necessary SDA building type for QKNJ; and whilst the SDA Price Guide as it applied to QKNJ did not list a separate price for a 2-bedroom house with 1 resident, at Appendix B Table 7 it did include an additional heading ‘Innovation’ which provided for funding to be provided on a ‘case by case basis’.[51] The Tribunal found that QKNJ’s housing needs fell within the ‘innovation’ category in Appendix B to the SDA Price Guide.[52] The Tribunal notes that subsequent iterations of the SDA Price Guide, including the current SDA Pricing Arrangements, do not include any option for funding to be provided on a case by case basis; and accordingly the Tribunal considers that QKNJ can be distinguished from this matter.

[50] ACS, [2].

[51] QKNJ, [54], [62], [69].

[52] QKNJ, [69]-[70].

41.  Having accepted the Respondent’s submission that the NDIS Rules, through their adoption or incorporation of the SDA Price Guide, prohibit funding for a sole occupancy 2-bedroom house as is sought by DQRG, the Tribunal must determine what the appropriate SDA building type is to support DQRG.

DQRG

42.  There are several written documents prepared by DQRG in evidence.[53] DQRG also gave oral evidence at the hearing. Broadly, DQRG’s written evidence is as follows:

a)    DQRG suffers from CRPS, a condition which leaves her in constant pain and discomfort.[54] Because of her CRPS, DQRG requires assistance with every aspect of daily living, has an irregular sleep pattern, will sleep at any time of the day or night, and when sleeping expects quiet and is easily disturbed.[55] She keeps irregular hours; is self-conscious of her condition and limitations, and does not like others observing her struggles.[56]

b)    DQRG has a low tolerance to temperature variations and will consequently have the air conditioner on when it is cold and the heater on when it is hot.[57] During times of acute symptoms or during activity, DQRG will wear minimal clothing to regulate her temperature.[58] In oral evidence, DQRG estimated she is without clothing 70 percent of the time. She believes she would suffer unduly if she was in shared accommodation and unable to do this.[59]

c)    DQRG likes to keep windows closed and curtains drawn as she cannot tolerate bright lights and likes to reduce outside noise.[60] DQRG has 2 small dogs that are like family to her and live inside.[61] She is moody due to pain, and vulnerable due to physical restrictions; and would become stressed in shared accommodation when a resident had visitors; and stress increases her pain.[62] When in pain, positive interactions with family, friends and therapists are reduced.[63]

d)    DQRG does not want to share accommodation; and believes such an arrangement would hamper her improvement and reduce her interaction with those she needs to improve her quality of life.[64]

[53] E1, T8, 38-39;

[54] E1, T8, 38.

[55] E1, T8, 38.

[56] E1, T8, 38.

[57] E1, T8, 38.

[58] E1, T8, 38.

[59] E1, T8, 38.

[60] E1, T8, 38.

[61] E1, T8, 39.

[62] E1, T8, 38.

[63] E1, T8, 39.

[64] E1, T8, 39.

43.  In oral evidence, DQRG emphasised she is often without clothing, as clothing increases her pain. Associated with that, DQRG gave evidence that for her to use any outdoor courtyard or space, it would need to be walled and private. DQRG explained at the hearing that a villa, duplex, townhouse would not be big enough to accommodate her infrared sauna, sensory deprivation tank and stationary bike. With respect to the infrared sauna and sensory deprivation tank, DQRK gave evidence that they reduce her pain and fatigue. She gave evidence to the effect that a separate room would also facilitate her continuing to do some basic advocacy and having family come to stay with her.

44.  At the hearing, the Tribunal asked Ms DQRG if sole occupancy and a second bedroom are priorities for her, would an apartment, 2-bedroom, 1 resident be appropriate. DQRG gave evidence she had considered this, but in circumstances where she is so housebound, she needs space, and an apartment would be much smaller than a house.

Mr DQRG

45.  DQRG previously resided with her son (Mr DQRG), who provided DQRG with full-time care and support.[65] That living arrangement ceased in December 2021.[66] In a statement dated 25 October 2021, Mr DQRG made the following observations of his mother:

a)Due to her disrupted sleep patterns, when she does sleep, she doesn’t like any noise or commotion;

b)She doesn’t like to be observed on her bad days; and can become agitated around others because she is self-conscious and embarrassed by her condition;

c)She will have verbal outbursts or resign to her room if her routine is disrupted or she must meet the needs of others;

d)She will self-isolate and become temperamental if there are strangers in the house;

e)She would be at risk if required to share accommodation as she is at times vulnerable due to her medication and disrupted sleep patterns;

f)She has 2 dogs that give her much joy and have the run of the house; this will not change and may cause conflict in shared accommodation.[67]

[65] E1, T7, 36.

[66] E1, 2.3, 384.

[67] E1, T7, 36.

Occupational therapists

46.  There are a number of reports in evidence prepared by Mr ZI, occupational therapist.[68] Mr ZI did not give oral evidence at the hearing. Mr ZI assessed DQRG on 16 December 2019 and prepared a report dated 21 December 2019.[69] At the time of the assessment, DQRG was residing with her son, who together with her ex-husband was providing 24/7 care.[70] Mr ZI reported that DQRG’s CRPS affects all parts of her body, resulting in uncontrollable motor loss, sensory issues, balance and strength restrictions and ultimately a reduced loss of coordination.[71] DQRG mobilises in a transit wheelchair, which she could not propel without the support of a carer; and is at high risk of falls.[72] Mr ZI recommended 24/7 1:1 support worker assistance, and made a number pf recommendations, which included a more accessible home environment to facilitate independence, safety and ongoing progress towards NDIS goals.[73]

[68] E1, T3, 18; T11D, 224; 2.4, 385; 2.5, 388.

[69] E1, T3. 18.

[70] E1, T3, 18, 19.

[71] E1, T3, 19.

[72] E1, T3, 19, 22.

[73] E1, T3, 26, 27.

47.  Mr ZI prepared a further report dated 18 August 2021.[74] Mr ZI noted that 24/7 support for all personal and domestic activities of daily living had previously been recommended; and opined that there is also a need for these supports to consider higher risk tasks and operation of assistive technologies that require 2 persons (hoisting, showering, toileting), with support hours to be provided at an active capacity overnight.[75]

[74] E1, T6, 32.

[75] E1, T6, 33.

48.  Mr ZI provided 2 further reports, both dated 12 April 2024.[76] At the time of those reports DQRG was living in a remote community in Queensland, and Mr ZI had been working with DQRG for several years to ensure she has access to appropriate assistive technology, modifications and other home supports, to maintain her independence and safety.[77] Mr ZI reports that an infrared sauna and sensory deprivation tank have both historically been successfully used and operated in DQRG’s home to address difficulties associated with thermoregulation, directly linked to her diagnosis of CRPS; but that they were recently destroyed by a natural disaster.[78]

[76] E1, 2.4, 385; 2.5, 388.

[77] E1, 2.4, 385.

[78] E1, 2.4, 386; 2.5, 389.

49.  Mr ZI opines that the infrared sauna and the sensory deprivation tank are both reasonable and necessary for DQRG and explains why he believes that to be so.[79] Mr ZI further opines that DQRG’s housing would need to accommodate both the infrared sauna and the sensory deprivation tank, and that a townhouse, villa or duplex would not be suitable for that.[80] Mr ZI also reported that both items of assistive technology require appropriate access to nearby electrical and plumbing facilities; and the infrared sauna must be installed on a flat level surface, which can accommodate up to 300kg.[81] It should be noted that DQRG has confirmed she is not seeking funding for the infrared sauna or the sensory deprivation tank on review, yet rather contends these are items which need to be accommodated in her SDA and are therefore relevant to consideration of the building type that is appropriate to support her.

[79] E1, 2.4, 387; 2.5, 389.

[80] E1, 2.4, 387.

[81] E1, 2.4, 387; 2.5, 390.

50.  Ms CL, an occupational therapist, prepared an occupational therapy assessment report (SDA) dated 28 August 2020.[82] Mr CL reported that DQRG:

a)Is at a very high risk of falls (falling almost daily) as her legs give out under her.[83]

b)Struggles with thermoregulation; and that difficulty with temperature control is a feature of CRPS which especially affects DQRG because of her whole-body involvement.[84]

c)Struggles with the sensation of sunlight and some artificial light on her skin and on her eyes.[85] Her tolerance to light stimuli is inconsistent and unpredictable, which leads to her living in the dark.[86] Cannot tolerate the sensation of most fabrics.[87]

d)Has a difficult relationship with sleep due to high levels of ‘electric’ pain throughout her body and severe sleep apnoea.[88] There is a correlation between DQRG’s quality and quantity of sleep and her fatigue and pain presentation.[89]

[82] E1, T11B, 138.

[83] E1, T11B, 158.

[84] E1, T11B, 144.

[85] E1, T11B, 144.

[86] E1, T11B, 144.

[87] E1, T11B, 144.

[88] E1, T11B, 148.

[89] E1, T11B, 148.

51.  With respect to SDA building type, Ms CL reported that a group home, apartment nor duplex/villa/townhouse would not be appropriate for DQRG as she does not want a shared environment, even with a shared wall and private unit; has inconsistent sleep patterns affected by sleep apnoea, pain and fatigue, and cannot be disturbed by others when sleeping.[90] Ms CL recommended the SDA building type house as preferred, noting that DQRG prefers the privacy of a home and would only manage in this environment in a single-occupancy setting.[91]

[90] E1, T11B, 156-157.

[91] E1, T11B, 157.

52.  Ms CL also gave oral evidence at the hearing. In oral evidence Ms CL confirmed she became a registered occupational therapist in 2015, has worked with NDIS participants since 2018 and has considerable experience completing NDIS housing and support needs assessments. She does not work a lot with CRPS conditions. With respect to her recommendation of a house as the SDA building type appropriate to support DQRG, Ms CL gave oral evidence that DQRG’s preference is for privacy, her touch sensitivity is impacted such that she often cannot wear clothes, she cannot go out into the community so her only access to outdoor spaces requires a high degree of privacy. Ms CL gave oral evidence she had read an occupational therapy report prepared by Mr RC which suggests DQRG experiences more acute pain with noise and disturbed sleep. Ms CL opined that the problem with a villa, duplex and townhouse is that you have a high number of neighbours, and they are in relatively close proximity. Ms CL gave further evidence that DQRG reported she is sensitive to intermittent noise from neighbours, which impacts her sleep, increases her pain and reduces her ability to function. Ms CL stated the building type house limits the number of dwellings and therefore intermittent noise.

53.  During cross-examination, when asked whether the evidence she had provided about DQRG’s touch and noise sensitivities was based on any medical evidence, Ms CL conceded she did not have any medical evidence about DQRG. Ms CL clarified her evidence with respect to this was based on literature about CRPS. With respect to Ms CL’s evidence in terms of privacy issues relevant to DQRG, Ms CL conceded there would be privacy impediments regardless of whether DQRG lived in a house, or a villa, duplex, townhouse; but suggested that with a villa, duplex, townhouse it is a given she will have multiple nearby neighbours, whilst with a house there is more flexibility around this.

54.  Mr RC, occupational therapist, provided a supplementary occupational therapy report dated 11 November 2021.[92] Relevant to consideration of the SDA building type appropriate to support DQRG, Mr RC records that DQRG reports significant sensory sensitivity to extraneous noise, whether that be other people, traffic, music etc; and that her symptoms are sensitised by noise. Mr RC opined a house, where there are no shared walls with other building residents, and where there is some reasonable space between the building, the property boundary and the next residence, provides maximum isolation for DQRG from extraneous noise and would reduce the risk of DQRG’s sensitivities and symptoms being triggered.[93]

[92] E1, T11E, 227.

[93] E1, T11E, 238, 240.

55.  Mr RC reported that DQRG support needs exceed those that can be provided via a concierge model such as in an apartment building; and her support model is compatible with and appropriate for a house.[94] Mr RC opines that a house represents value for money given DQRG’s specific impairments, sensitivities and support needs; and impacts DQRG’s capacity and capabilities to the extent that it significantly minimises noise related triggers.[95] Further, based on evidence obtained throughout the assessment, Mr RC reported his view was that by reducing DQRG’s exposure to noise and triggers, a house would improve relevant life stage outcomes for her.[96]

[94] E1, T11E, 238-239.

[95] E1, T11E, 239, 240.

[96] E1, T11E, 240.

56.  Mr RC opined that a single resident dwelling would best meet DQRG’s needs, mitigate risk for DQRG, and alleviate the impact of DQRG’s disability on her daily functioning.[97] He explained this was due to DQRG’s sensitivity to extraneous noise, her tendency to block natural light to minimise environmental triggers to symptoms, her need to be able to set air-conditioning to address her body’s often dysfunctional thermoregulation and associated need to wear limited clothing.[98]

[97] E1, T11E, 241.

[98] E1, T11E, 241-242

Psychologist

57.  In evidence is a letter from DQRG’s psychologist Ms WA dated 9 December 2021. Ms WA reported that despite DQRG’s family being very thoughtful, her previous cohabitation with then came at a cost to DQRG’s health.[99] If she were to have cotenants, Ms WA stated DQRG would likely stay in her bedroom to avoid encroaching on others and may avoid being in communal areas to exercise because she is self-conscious.[100] Ms WA reported that DQRG keeps curtains closed at all times as light hurts her eyes and causes migraines; due to her unregulated body temperature must alter the thermostat on the air conditioner; and spends a lot of time naked as clothes cause pain.[101] DQRG believes her environmental requirements are unreasonable and she is anxious at the thought of making a cotenant adapt to her needs.[102] Ms WA opined that DQRG would thrive in her own accommodation, and recommended a sole occupancy dwelling for her.[103]

[99] E1, T11F, 245.

[100] E1, T11F, 246.

[101] E1, T11F, 247.

[102] E1, T11F, 247.

[103] E1, T11F, 249.

SDA review consultants

58.  Mr GB, an SDA review consultant, prepared a submission addressing prescribed criteria and providing conclusions regarding SDA eligibility and suitable housing for DQRG.[104] Mr GB uses different colours to identify input from DQRG and material quoted from Ms CL and Mr ZI.[105] Having addressed the evidence of DQRG, Ms CL and Mr ZI, and considered that against the matters prescribed in s 16 of the SDA Rules, Mr GB concluded that the appropriate SDA building type for DQRG was a house, 2 residents.[106]

[104] E1, T11C, 161,

[105] E1, T11C, 163.

[106] E1, T11C, 209.

59.  Mr JB, an SDA review consultant, prepared a submission in support of DQRG’s internal review request dated 1 August 2022.[107] Mr JB relies heavily on reports prepared by Ms CL, Mr ZI, Mr RC and Ms WA which have been referred to above. Parts 2 and 3 of Mr JB’s submission addresses the matters prescribed in s 16 of the SDA Rules and the requirements in s 34. He submits that a house, 1 resident is the building type that is appropriate to support DQRG and is reasonable and necessary in accordance with s.34.

[107] E1, T11, 68.

60.  The Tribunal makes the following observations in relation to the evidence before it:

a)Mr RC’s assessment involved review of Ms CL’s 28 August 2020 report, previous standardised assessment findings, a telehealth assessment with DQRG and a video assessment of DQRG’s mobility, transfers and living environment.[108] He does not appear to have reviewed or had access to any medical evidence in relation to DQRG to inform his assessment and recommendations for DQRG. Mr RC’s recommendation that a house is the appropriate SDA building type for DQRG appears to be based on his acceptance of DQRG’s self-reported thermoregulation issues, sensory sensitivities to noise and light, and her assertion that those sensitivities trigger pain associated with her CRPS. The Tribunal agrees with the Respondent’s submission that it is beyond Mr RC’s expertise to determine whether DQRG’s disabilities can and do cause the sensitivities reported by DQRG.[109]

b)Ms CL’s assessment of DQRG involved an interview with DQRG, review of videos provided by DQRG, review of reports prepared by Mr ZI and Mr SW (physiotherapist), and assessment tools administered by Ms CL.[110] Her recommendation that a house is the building type that is appropriate to support DQRG is largely based on DQRG’s self-reported thermoregulation issues and sensory sensitivities. However, like Mr RC, Ms CL did not review or have access to any medical evidence related to DQRG to inform her assessment of and recommendations for DQRG. Further, Ms CL gives very little express consideration to SDA building types other than a house in her report.

c)In the reports provided by Mr ZI, there is no mention of him having reviewed any medical evidence regarding DQRG. He appears to have largely relied on his observations of DQRG and DQRG’s self-reported symptomology for the purpose of his assessment and recommendations. To the extent Mr ZI asserts that the infrared sauna and sensory deprivation tank are ‘reasonable and necessary’, the Tribunal considers that opinion extends beyond his expertise as an occupational therapist and suggests advocacy. Whilst Mr ZI’s recommends the infrared sauna and sensory deprivation tank for DQRG and opines that a villa, duplex or townhouse would not be suitable for them, he does not explain why that is so, whether a house would be suitable for them, and if so why.

d)There is a complete absence of any medical (as opposed to allied health) evidence before the Tribunal that speaks to DQRG’s thermoregulation issues and sensitivities to noise and light.

[108] E1, T11E, 227.

[109] RSFIC, [3.13].

[110] E1, T11B, 138.

61.  Having considered the material before it and the weight that can be given to that evidence – even if the Tribunal is wrong and a sole occupancy house is a building type that can be funded under the NDIS – in the absence of objective medical evidence that speaks to DQRG’s thermoregulation and sensitivities to noise and light:

a)The Tribunal is not persuaded that DQRG’s purported need for a house, as opposed to a villa, duplex or townhouse, is related to DQRG’s disability.[111] Such support will therefore not be funded under the NDIS.[112]

b)Nor is the Tribunal persuaded that the same outcome would not be achieved at a substantially lower cost by basing DQRG’s SDA funding on a villa, duplex or townhouse, rather than a house; that funding a house as opposed to a villa, duplex or townhouse would reduce DQRG’s need for other kinds of supports, or be likely to reduce the cost of funding of supports for DQRG in the long-term.[113] Further, it is unclear on the evidence whether DQRG’s life stage outcomes will be improved to any greater extent by funding a house, rather than a villa, duplex or townhouse.[114] Having considered the matters in s 3.1 of the Support Rules, the Tribunal is not satisfied that the SDA building type sought by DQRG represents value for money in thar the costs of the support are reasonable, relative to both the benefits to be achieved and the cost of alternative support.[115] It follows that the building type sought by DQRG is not reasonable and necessary in accordance with s 34.

[111] s 5.1(b) of the Support Rules.

[112] s 5.1(b) of the Support Rules.

[113] ss 3.1(a), 3.1(c), 3.1(f) of the Support Rules.

[114] s 3.1(b) of the Support Rules.

[115] s 34(c).

62. Having considered the material before it and having had regard to the matters prescribed in s 16 of the SDA Rules, the Tribunal has determined that the SDA building type that is appropriate to support DQRG is a villa, duplex or townhouse, 1 resident.

63.  DQRG’s strong preference is to reside on her own. A villa, duplex townhouse, 1 resident is consistent with that preference, would afford DQRG privacy and accommodate her 2 dogs which are important to her and provide her with constant company. It would also be sensitive to her disturbed sleep patterns and the constant pain associated with her CRPS. A villa, duplex or townhouse would be separated from other dwellings by a fire-resistant wall, or may be an ancillary dwelling that is located on the same parcel of land as another dwelling (e.g. a self-contained granny flat).[116] Those features would minimise noise that may disrupt DQRG’s sleep, and in turn the impact of disrupted sleep upon her pain. DQRG raised concerns, and Mr ZI opined, that a villa, duplex or townhouse would not accommodate her infrared sauna and the sensory deprivation tank. There is insufficient evidence with respect to these for the Tribunal to determine whether they could be safely accommodated in any SDA building type.

[116] Schedule 1 to the SDA Rules.

64.  A villa, duplex, townhouse, 1 resident would ensure that DQRG’s support worker or support workers are focused on and available to her; and not distracted by cotenants. This would reduce the risk of DQRG falling, accommodate her need for immediate assistance to toilet and ensure any instances of incontinence can be addressed without delay. A villa, duplex or townhouse, 1 resident would ensure DQRG is not discouraged from completing her prescribed exercises, nor self-conscious and isolated in her bedroom. It would also facilitate DQRG’s social and community participation in that it would allow for her to spend private and quality time with her family including her grandchildren, and to have established connections such as friends visit and spend time with her at home.

65.  The evidence does not suggest that a less expensive SDA building type would achieve the same outcome for DQRG as a villa, duplex or townhouse, 1 resident. Indeed, the Tribunal accepts that an apartment with multiple shared walls and higher density living would likely further frustrate DQRG’s already disrupted sleep pattern, which could worsen her pain. The Tribunal similarly finds that a villa, duplex or townhouse, 1 resident will facilitate DQRG’s privacy and independence and in doing so will substantially improve her life stage outcomes and be of long-term benefit to her. The Tribunal is satisfied that a villa, duplex or townhouse, 1 resident represents value for money, in that the costs would be reasonable, relative to both the benefits achieved and the costs of alternatives.

1. The Respondent accepts, and the Tribunal is similarly satisfied that a villa, duplex, townhouse, 1 resident is reasonable and necessary in accordance with s 34. In summary, for the reasons outlined above, the Tribunal is satisfied this appropriate SDA building type will assist DQRG to undertake activities, so as to facilitate her social and economic participation; 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 will be, or is likely to be, effective and beneficial for DQRG, having regard to current good practice.[117] The Tribunal is satisfied that this appropriate SDA building type will assist DQRG to pursue the goals, objectives and aspirations included in her statement of goals and aspirations, in particular those which relate to spending quality time with her family, having supports so she is able to live as independently as possible in her own home, and to be supported to seek accommodation that will be suitable over her lifespan and allow her to maintain her independence.[118] There is no evidence before the Tribunal that the support is more appropriately funded or provided through other services or systems; and funding the appropriate SDA building type takes account of what it is reasonable to expect families, carers, informal networks and the community to provide.[119]

   [117] ss 34(1)(b), 34(1)(c), 34(1)(d).

   [118] s 34(1)(a).

   [119] ss 34(1)(e), 34(1)(f).

DECISION

67. Pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) the decision under review is set aside and the matter is remitted to the Respondent for reconsideration in accordance with a direction that DQRG’s statement of participant supports specifies for Specialist Disability Accommodation as follows:

SDA type:  New build

Building type:   Villa, duplex and townhouse, 1 resident

Design category:  High physical support

Location:  QLD – Townsville – Queensland

Onsite overnight assistance:             Yes

Fire sprinklers:  Yes

I certify that the preceding sixty-seven (67)

paragraphs are a true copy of the reasons

for the decision herein of Member L Proske

[SGND]
……………………………..
Associate

Dated: 2 October 2024

Date of hearing:  10, 11 July 2024

Last submission:  23 July 2024

Advocate for the Applicant:      Self-represented

Advocate for the Respondent:  Philip Nolan

Counsel

Annexure to Reasons for Decision

National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth)

15Matters to be determined by CEO in respect of each eligible participant

(1)The CEO must determine the following matters for an eligible participant:

(a)the SDA building type that is appropriate to support the eligible participant (see section 16);

(b)the SDA design category that is appropriate to support the eligible participant (see section 17);

(c)the area in which the specialist disability accommodation is to be located (see section 18);

(d)whether the specialist disability accommodation is to be provided as an in‑kind support.

Note:The CEO may determine more than one SDA building type, SDA design category or location in relation to an eligible participant. The SDA building type, SDA design category and location must be specified in the eligible participant’s plan: see section 19.

(2)If an eligible participant notifies the CEO, in writing, that the eligible participant wishes to reside at:

(a)a dwelling that the eligible participant occupied immediately before a determination under subsection (1) is made; or

(b)a dwelling that the eligible participant moved to in accordance with an earlier determination made under subsection (1); or

(c)a dwelling that does not meet the matters determined by the CEO under subsection (1) in relation to the eligible participant while the eligible participant finds and transitions to accommodation that satisfies those matters;

the CEO may determine, in addition to the matters mentioned in subsection (1), that the eligible participant is eligible to receive support for specialist disability accommodation in relation to the accommodation specified in the notice.

Note 1:An eligible participant may be eligible under subsection (2) to receive support for a dwelling that only satisfies the minimum design requirements specified for the SDA design category of basic.

Note 2:The matters determined by the CEO under this section affect the amount of support that can be paid to an eligible participant for specialist disability accommodation. The SDA Price Guide sets out the maximum amount of support that is available for specialist disability accommodation.

s 16SDA building type

For the purposes of determining under subsection 15(1) the SDA building type that is appropriate to support an eligible participant, the CEO must have regard to the following matters:

(a)the eligible participant’s preference, if the preference can be established and it aligns with the eligible participant’s statement of goals and aspirations;

(b)the features of the building type in relation to the eligible participant’s needs;

(c)the support model that is more appropriate for the eligible participant, having regard to the eligible participant’s needs and whether immediately available or constant person‑to‑person support is required;

(d)the eligible participant’s support needs;

(e)whether the building type represents value for money in that the costs would be reasonable, relative to both the benefits achieved and the cost of alternatives;

(f)the extent to which the building type would facilitate social and economic participation, including how the building type may impact on:

(i)the eligible participant’s ability to engage in the life of the household and community; and

(ii)the dynamics of the household, including the eligible participant’s ability to share with others and build relationships;

(g)the extent to which the building type facilitates past, established or planned connections or the continuation of established connections, in particular cultural and community connections;

(h)the extent to which the building type increases, reduces or mitigates the risks to the eligible participant and others, having regard to the eligible participant’s response to risk and the interaction of the eligible participant with the environment;

(i)the extent to which the building type improves the life stage outcomes for, and be of long‑term benefit to, the eligible participant;

(j)the extent to which the building type impacts on the eligible participant’s capacity or capabilities, including:

(i)whether it alleviates the impact of the eligible participant’s impairment on the eligible participant’s daily functioning; and

(ii)whether it enhances the eligible participant’s skill development, in particular independent living skills; and

(iii)whether it increases the benefit and effectiveness of supports, other than specialist disability accommodation, for the eligible participant’s skill development, in particular independent living skills; and

(iv)whether it enhances the opportunity for a move to accommodation other than specialist disability accommodation, or to lower cost specialist disability accommodation, in particular through a transition period with intensive capacity‑building supports;

(k)the extent to which the building type facilitates or sustains informal supports and the extent to which those supports reduce the cost of other supports;

(l)the extent to which the building type facilitates or hinders the provision of other supports required by the eligible participant;

(m)the extent to which the building type facilitates access to other support or specialist services required by the eligible participant and which are not funded or provided through the National Disability Insurance Scheme.

17SDA design category

(1)For the purposes of determining under subsection 15(1) the SDA design category that is appropriate to support an eligible participant, the CEO must have regard to the specific needs of the eligible participant.

(2)For the purposes of subsection 15(1), the CEO must not determine for an eligible participant the SDA design category of basic.

18Location of specialist disability accommodation

(1)For the purposes of determining under subsection 15(1) the area in which the specialist disability accommodation for an eligible participant is to be located, the CEO must have regard to the following matters:

(a)the eligible participant’s preference, if the eligible participant’s preference:

(i)can be established; and

(ii)aligns with the eligible participant’s statement of goals and aspiration; and

(iii)is important to the eligible participant’s support needs and for one or more of the matters mentioned in paragraph (e) or (f) or paragraph 16(h), (i), (k), (l) or (m);

(b)the extent to which the location would assist the eligible participant to pursue the goals, objectives and aspirations in the eligible participant’s statement of goals and aspirations;

(c)features of the location, including the accessibility of community services;

(d)where the eligible participant currently lives and the history of where the eligible participant has lived, including any recent changes;

(e)the extent to which the location would facilitate past, established or planned connections or the continuation of existing connections, in particular cultural and community connections;

(f)the extent to which the location would be likely to facilitate social and economic participation, in particular how the location would impact on the eligible participant’s ability to engage in the life of the household and community;

(g)whether the location represents value for money, having regard to the extent to which the location will:

(i)facilitate or sustain informal support, and the extent to which informal supports would reduce the cost of other supports; and

(ii)facilitate or hinder the provision of other supports required by the eligible participant; and

(iii)facilitate access to mainstream supports or specialist services required by the eligible participant.

(2)The area determined by the CEO for the purposes of subsection 15(1) must be:

(a)an area designated by the Australian Bureau of Statistics as a Statistical Area Level 4 under the Australian Statistical Geography Standard; or

(b)a part of an area of the kind mentioned in paragraph (a); or

(c)2 or more areas of the kind mentioned in paragraph (a).