DRVV and National Disability Insurance Agency (NDIS) - [2025] ARTA 158

DRVV and National Disability Insurance Agency (NDIS) [2025] ARTA 158 (26 February 2025)
Applicant:DRVV
Respondent: National Disability Insurance Agency
Tribunal Number: 2022/3429

Tribunal:General Member J Toohey
Place:Brisbane
Date:26 February 2025
Decision:1. The decision under review, being the decision of the National Disability Insurance Agency:
(a)made on 22 April 2022 under section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth);
(b)as remade on 24 January 2025 following remittal by the Tribunal under section 85 of the Administrative Review Tribunal Act 2024 (Cth);

is set aside under section 105 of the Administrative Review Tribunal Act 2024 (Cth) and remitted for reconsideration with the directions that the statement of participant supports includes:
(a)sufficient funding to meet the maintenance expenses for the Applicant’s assistance animal, with effect from 15 March 2022;
(b)sufficient funding for vehicle window tinting with effect from 15 March 2022;
(c)a reassessment date of 24 months after implementation of the new plan following this decision.
2. The remaining aspects of the statement of participant supports, including plan management, remain unchanged.

.................................[SGD]...................................
General Member Justin Toohey

Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – Reasonable and Necessary Supports –Getting the NDIS Back on Track Amendments – Transitional Rules – Psychosocial Disability – Eligible Assistance Animal Definition – Training Requirement – Plan Management and Duration – Standard Household Items – Smart watch – Replacement Support Determination – Window Tinting – Hobby Business Assistance – Meal Preparation and Delivery – Removalist Service – Evidence Needed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024
National Disability Insurance Scheme (Plan Management) Rules 2013
Cases
Browne v Dunn (1893) 6 R 67
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
James and National Disability Insurance Agency [2023] AATA 2991
Kioa v West (1985) 159 CLR 550
Pavlakis and National Disability Insurance Agency [2023] AATA 2485
Warwick v National Disability Insurance Agency [2024] FCA 616
Secondary Materials
NDIS Operational Guideline: Assistance animals including dog guides, published 20 June 2022
NDIS Operational Guideline: Changing your plan, published 22 September 2024
NDIS Operational Guideline: Creating your plan, published 3 October 2024
NDIS Operational Guideline: Home modifications, published 13 November 2024
NDIS Operational Guideline: Vehicle modifications and driving support, published 12 April 2023
NDIS Operational Guideline: Work and study, published 12 November 2024
Statement of Reasons
SUMMARY

The Tribunal has decided to set aside and remit the decision of Agency with directions that the Applicant’s statement of participant supports includes:
(a)sufficient funding to meet the maintenance expenses for the Applicant’s assistance animal, with effect from 15 March 2022;
(b)sufficient funding for vehicle window tinting with effect from 15 March 2022; and
(c)a reassessment date of 24 months after implementation of the new plan following this decision.
The Tribunal is not satisfied that the other supports requested by the Applicant are reasonable and necessary. Consistent with most recent plan, funding is to remain managed by a registered plan management provider.
This decision is made under section 105 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). The reasons for this decision are as set out below.
INTRODUCTION
The issue before the Tribunal is whether supports requested by the Applicant are reasonable and necessary supports to be funded in the Applicant’s statement of participant supports (SPS) for the purposes of sections 33 and 34 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).
The Applicant is a man in his forties who has been a National Disability Insurance Scheme (NDIS) participant since September 2018. He lives with his dog (R) and cat (L) and his family lives interstate. The Applicant lives with a psychosocial disability as a result of Autism Spectrum Disorder (ASD).
On 15 March 2022, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the Agency) approved a SPS for the Applicant. The Applicant requested an internal review of the delegate’s decision and on 22 April 2022 the Agency affirmed its original decision. On 24 February 2022, the Applicant applied for a review by the Administrative Appeals Tribunal (AAT) under section 103 of the NDIS Act and section 25 of the AAT Act.
During the proceeding, the matter was remitted to the Agency for reconsideration on more than one occasion. The final remittal was made on 24 January 2025 under section 85 of the ART Act. The decision made by the Agency following this remittal on 24 January 2025 is the decision that has been reviewed.
The Applicant had legal representation for a short period during this review. Just prior to the hearing, the Applicant ceased to be represented. The Applicant requested an adjournment of the hearing saying that the submissions prepared on his behalf were not in line with his instructions. At a Directions Hearing on 18 October 2024, I decided to proceed with the hearing and allowed the Applicant to amend his submissions and provide further evidence if needed. The hearing was held by video on 23 and 24 October 2024. The Applicant represented himself. The Agency was represented by Counsel, Mr P Nolan.
ISSUES
The issues before the Tribunal are whether the following are supports are reasonable and necessary support for the Applicant:
(a)Plan duration and management
(b)Weber Baby Q Premium BBQ and accessories
(c)Apple watch
(d)Window tinting of house and vehicle
(e)Assistance animal support and maintenance
(f)Hobby business assistance
(g)Meal preparation and delivery service, and
(h)Removalist services.
Following the hearing, both parties were also provided with the opportunity to make written submissions. While these submissions were being finalised, the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) (Back on Track Amendment Act) commenced on 3 October 2024. The parties were provided a further opportunity to address these amendments. Final submissions were received on 6 January 2025.
TRANSITION TO THE ADMINISTRATIVE REVIEW TRIBUNAL[1]
[1] The following paragraph is approved for use in all Tribunal decisions.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
GETTING THE NDIS BACK ON TRACK AMENDMENTS[2]
[2] I have used the following paragraphs in other recent decisions.
The Back on Track Amendment Act made significant amendments to the NDIS Act. The new section 32A on the NDIS Act sets out that there are now two kinds of plans: being ‘new framework plans’ and ‘old framework plans’. This matter is an ‘old framework plan’. Section 129 of the Back on Track Amendment Act deals with the application of the amendments to content and approval of ‘old framework plans’ and states that:
sections 33, 34 and 35 of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, apply in relation to a statement of participant supports included in an old framework plan for a participant if the statement is approved or varied on or after that commencement.
… (a) whether the participant becomes a participant; and
(b) in the case of a variation—whether the plan comes into effect;
before, on or after that commencement.
The Tribunal on review is now considering whether supports are reasonable and necessary and should be funded as part of an SPS. The Tribunal will apply the amended considerations in sections 33, 34, 35 to the Tribunal’s decision-making process.
New section 34(1)(aa)
The amendments insert a new section 34(1)(aa) that must be satisfied for a support to be considered reasonable and necessary and requires that:
(aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participantmeets the disability requirements (see section 24) or the early intervention requirements (see section 25)
The Applicant is described as having impairments attributable to his diagnosis of ASD – level 3,[3] severe anxiety and clinical depression.[4] The parties agree, and I am satisfied, that the requested supports are intended to address needs of the Applicant arising from impairments which meet the disability requirements.[5]
New section 34(1)(f) and transitional rules
[3] SB report at B15, page 763 of the Joint Hearing Bundle.
[4] SB report at T4, page 25 of the Joint Hearing Bundle.
[5] As confirmed by the Agency in opening submissions.
The amendments also added section 34(1)(f) which requires that the support is a NDIS support for the participant. This, in turn, applies the new definition of ‘NDIS support’ in section 10. Section 10 provides that rules may be made that declare whether a support is (or is not) a NDIS Support. Section 124 of the Back on Track Amendment Act states that the reference to rules made under section 10 includes rules made under section 138 of the Back on Track Amendment Act which allows the Minister to make transitional rules.
The Minister has made the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Transitional Rules) and these rules also commenced on 3 October 2024. The Transitional Rules set out in detail supports that are (and are not) NDIS supports. The Transitional Rules are relevant to the issues before the Tribunal and I consider these rules further below.
18.The Minister has also made National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024 (Miscellaneous Transitional Rules). Section 7 of the Miscellaneous Transitional Rules requires that a decision-maker must also be satisfied the support is most appropriately funded or provided through the NDIS, and not more appropriately funded or provided through other general systems of service delivery or support services. In effect this means that decision-makers are (at least until new rules are made) applying two versions of section 34(1)(f), as it was before the amendments, and the new version as amended.
New section 33(5)(g)
New section 33(5)(g) requires decision-makers to have regard to whether section 46 (acquittal of NDIS amounts) was complied with in relation to any previous plan for the participant. As section 129 of the Back on Track Amendments applies this provision to old framework plans it must be considered. However, section 133 states that:
Section 46 of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, applies in relation to:
(a) a participant who receives an NDIS amount, including because of subsection 46(1A) of that Act, on or after that commencement; or
(b) a person who receives an NDIS amount on behalf of a participant, including because of subsection 46(1B) of that Act, on or after that commencement;
whether the participant becomes a participant before, on or after that commencement.
Therefore, the new section 33(5)(g) only applies to the acquittal of NDIS amounts received after the commencement of the Back on Track Amendments. The parties did not make any submissions about the acquittal of such NDIS amounts. At this point in time, I do not have sufficient information to make any finding in relation the acquittal of NDIS amounts received after 3 October 2024. There are submissions in relation to expenditure under previous plans and I will consider this further in relation to the plan duration below.
OVERVIEW OF THE NDIS DECISION-MAKING FRAMEWORK[6]
[6] I have used a similar overview in other decisions.
Chapter 1, Part 2 of the NDIS Act sets the Act objects and principles including, for example, that the NDIS Act is to support the independence and social and economic participation of people with disability,[7] and that decision-makers are to have regard to the need to ensure the financial sustainability of the scheme.[8]
[7] Section 3(1)(c).
[8] Section 3(3)(b).
Chapter 3, Part 2 of the NDIS Act deals with participants and their plans and includes further principles in relation to the preparation, variation, reassessment and replacement of plans. This guidance includes that this planning process should, so far as reasonably practicable, be directed by the participant,[9] and be underpinned by the right of the participant to exercise choice and control over his or her life.[10]
[9] Section 31(a).
[10] Section 31(g).
A participant’s plan must include a statement of the participant’s goals and aspirations[11] as well as a statement of participant supports that includes the reasonable and necessary supports that will be funded by the Agency.[12] In deciding to approve a statement of participant supports, the Agency must have regard to the matters set out in section 33(5), including applying the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Support Rules), and be satisfied that each support meets the criteria in section 34. The criteria in section 34(1) are that:
(aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements …
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is an NDIS support for the participant.[13]
[11] Section 33(1).
[12] Section 33(2)(b).
[13] And, by virtue of the Miscellaneous Transitional Rules, that the support is most appropriately funded or provided through the National Disability Insurance Scheme, and not more appropriately funded or provided through other general systems of service delivery or support services.
The Support Rules also remain in force and provide greater explanation of the application of the crtieria in section 34. For example, in relation to assessing value for money for section 34(1)(e), Rule 3.1 says that a decision-maker must consider:
(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) …
The NDIS Operational Guidelines also assist in making decisions in accordance with the NDIS Act. Operational guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[14] I will refer to these guidelines where relevant below.
[14] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
SUMMARY OF EVIDENCE
The Tribunal was provided with a joint hearing bundle by the parties, and this was accepted into evidence at the hearing.[15] This large bundle of documents (1250 pages) included:
[15] The document numbering in the hearing bundle index is adopted throughout these reasons.
(a)The ‘T-documents’;[16]
(b)Several letters and reports from SB, the Applicant’s psychologist, dated from September 2020 to April 2024;
(c)Letters and reports from occupational therapists including:
(i)NS in November 2022; and
(ii)LB, dated from November 2023 to April 2024;
(d)The Applicant’s previous plans from November 2018 onwards.
(e)Various training logs, veterinary declarations, photos and assistance animal identification records related to R.
[16] Which are all the records that the Agency considered when making the decision under review as required by section 37 of the AAT Act.
The Tribunal also had the benefit of receiving written submissions from the parties and oral evidence from the Applicant, the Applicant’s mother (AM), the Applicant’s treating psychologist (SB), and an independent occupational therapist (LB).
During the hearing the Tribunal also accepted three additional exhibits, being a written statement from the Applicant dated 24 October 2024, a quote for the BBQ, and a removalist invoice.
CONSIDERATION
Applicant’s goals
Section 33(5)(a) of the NDIS Act says that, in deciding whether or not to approve a statement of participant supports, decision-makers must have regard to the participant’s statement of goals and aspirations. A copy of the Applicant’s most recent plan records the Applicant’s goals as being:
(a)I would like to improve my daily eating routine and overall health and wellbeing.
(b)In this plan period, I would like to increase my independence with my daily living tasks, accessing the community and participating in leisure and recreational activities of my choice.
(c)I would like to find suitable accommodation so I am able to live independently and safely with my dog while having space for running my business from home.
(d)In this plan period, I would like to learn and build strategies to develop my communication, financial and business skills so I that can successfully run my hobby business as well as manage my everyday finances.
I have had regard to these goals and aspiration and will refer to them where relevant below.
Issue (a): plan duration and management
Sections 33(2)(c) and (d) of the NDIS Act require that a SPS must specify the date by which, or the circumstances in which, the Agency must reassess the plan, and the management of the funding for supports under the plan. The Applicant seeks a reassessment date two-years after the commencement of the SPS with the funding to be plan managed.[17]
[17] Applicant’s Final Submissions 6 January 2025.
Duration
The Applicant seeks a longer duration before reassessment to minimise the stress and anxiety of engaging with the Agency in the reassessment process. The Applicant says that the high risk to him is supported by the opinion of SB and LB. The report of SB dated 19 December 2023 refers to a significant deterioration in the Applicant’s mental health as an impact of NDIS plan changes.[18] The report of LB dated 27 November 2023 states that:
[DRVV’s] anxiety is crippling and means he will often experience panic, especially when overwhelmed by his sensory world. He has suffered significant suicidal ideations in the past and only had some reprieve when becoming a NDIS participant and able to manage his own plan, receiving relevant supports that were working well to maintain his mental health and provide enough stability that he was able to start a small business. However, with this self management removed, and having to deal with NDIA management and the AAT process, [DRVV] has experienced a severe decline to his mental state and suicidality has returned. He reports his only mitigating factors to be his assistance animals.[19]
[18] B26, page 816 of the Joint Hearing Bundle.
[19] B23, page 791 of the Joint Hearing Bundle.

The Agency submits that:
The current Policy of the Agency, in relation to plan duration, is as follows:
Everyone has different goals, living situations, and circumstances. So, we’ll work with you to decide how long it will be before we create your next plan. This will be based on your individual situation.
We think about how long you want your plan to go for. We’ll try to make the plan length what you want, where we can.
We are updating our new computer systems. Until complete these updates, new and reassessed plans completed in our new computer system will generally go for up to 12 months.
Once we have updated our new computer system, we may be able to make your plan longer if appropriate.
Your plan will say when we must do a plan reassessment, if we haven’t reassessed your plan before this. We call this the ‘NDIS plan reassessment date’.
It is accepted that this is Policy, and not binding on the Tribunal. However, government policy should be applied by the Tribunal unless there is good reason not to do so.
The primary reason for the implementation of a 12 month plan for all participants is a practical one. The Respondent’s updated systems will mean that a reassessment of the SOPS under the plan is likely at 12 months anyway.[20]
[20] Respondent’s Outline of Submissions 22 November 2024, paragraphs 39 to and 41.
The quote above is from the NDIS Operational Guideline: Creating your plan published 03 October 2024, page 25. I acknowledge that this is a current guideline, which should be applied unless there is good reason not to. This guidance is not consistent with other policy statements made by the Agency. The NDIS Operational Guideline: Changing your plan published on 22 September 2024 says:
Change the reassessment date of your plan
How far in advance a reassessment date is set in a plan isn’t the same for everyone. Your reassessment date will be specific to you and your situation. In some situations, we can change your reassessment date to a later date or an earlier date if we need to. We’ll talk with you and work with you if we need to make these types of changes.
For example, if your plan is working for you, we may change the reassessment date to a later date. We call this a plan continuation. We won’t change your reassessment date if there are concerns about how your plan is working for you. Or, you haven’t been using the funds in your plan. In this situation we’ll check-in with you.
If we change the reassessment date in your plan, we may need to make other variations to the statement of participant supports in your plan.
Case example
Fatima is a 27-year-old participant who lives with a mild intellectual disability. She speaks Arabic and uses an interpreter.
At Fatima’s last check-in, she and her planner discussed that her current plan was working well for her. At the time, Fatima requested that her current NDIS supports continue for the next 12 months. No changes were made during her check-in as her plan was near its reassessment date.
When developing Fatima’s next plan, her planner suggests they continue her current plan for 3 years. Fatima’s planner can see that she has found providers she is working well with, and she is working towards her goals. Her current supports have been working well over the past 12 months and are likely to continue to meet her support needs.
At the plan meeting, Fatima and her planner discuss continuing her plan. Fatima would like to continue with her current supports. Fatima’s planner approves a variation to her reassessment date. Fatima’s plan will continue with the same supports for the next 3 years. Fatima’s planner also tells her that if her situation changes, she can contact the NDIS.[21]
[21] NDIS Operational Guideline: Changing your plan published on 22 September 2024, pages 5 and 6.
Similarly, the Agency’s Participant Service Improvement Plan is said to increase participant confidence in the Scheme with changes such as:
oLonger duration plans which are reviewed at participants’ or NDIA’s request, rather than on a set annual basis;
oMore responsive and flexible ICT systems, including a new digital platform to support our work with participants, and an NDIS mobile app for real-time transactions.[22]
[22] >
In my view, the identified risks to the safety and wellbeing of the Applicant outweigh the policy and systems considerations put forward by the Agency. These risks are a basis for departing from the Agency’s policy regards to plan duration. In circumstances such as the Applicant’s, the Agency will need to find other ways to implement a reassessment date that is longer than 12 months. The plan continuation example in the Changing your plan guideline may offer an alternative. In reaching this conclusion I have also applied the principles in section 31 of the NDIS Act that, so far a reasonably practicable, reassessments should: be directed by the participant;[23] be underpinned by the right of the participant to exercise choice and control over his or her life;[24] maximise the choice and independence of the participant;[25] and facilitate tailored and flexible responses to the individual goals and needs of the participant.[26]
[23] Section 31(a).
[24] Section 31(g).
[25] Section 31(i).
[26] Section 31(j).
I also consider that the risks associated with a two-year plan are further mitigated by: the ability of the Agency to initiate a reassessment at an earlier time if required;[27] that the new section 33(5)(g) will apply section 46 in relation to the acquittal of NDIS as part of future reassessments; and that the Applicant will have a plan manager as discussed below.
[27] Section 48.
Plan management
Section 43(2) of the NDIS Act says that, if a participant makes a plan management request, the statement of participant supports in the plan must give effect to the request, except to the extent set out in subsections (2A) to (6). Relevant here is Rule 3.5 of the National Disability Insurance Scheme (Plan Management) Rules 2013 (Plan Management Rules), which states that:
Nor will a participant be able to manage the funding for supports under their plan to a particular extent if the CEO is satisfied that this would present an unreasonable risk to the participant.
The Agency submits that:
The Applicant exhausted all of the funds in his 3-year September 2020 plan by 14 March 2022, some 18 months early. The material reveals that the Applicant utilised the core budget under that plan for payments such as video conferencing, cleaning equipment, accounting support, “Beacon”, pool cleaning, fence repair, food, business support, “RAT” testing, “social app” access and transport costs in excess of what was budgeted. These are all items that were not included in the Applicant’s budget.
Based on the above, it is contended that self-management presents an unreasonable risk to the Applicant, in that the Applicant would experience financial harm if he was to spend the funds allocated to him for purposes different to what was budgeted.
The Agency’s position is that the Applicant plan should be plan-managed. This still allows the Applicant to chose who the plan manager is to assist Applicant with managing his NDIS plan funds. The Applicant still has control over who he uses for the supports. The payments merely need to be paid through the plan manager, who will be able to record the amount and what it is used for.[28]
[28] Respondent’s Outline of Submissions 22 November 2024, paragraph’s 47 to 49.
The Applicant has stated that he expended funds more quickly than expected because the three-year plan only included the equivalent of two year’s funding.[29] He also now agrees to having a plan manager. Given the impairments to the Applicant’s capacity for self-management,[30] and his concession that plan management is appropriate for a two-year plan, I am of the view that the Applicant has requested plan management, and that the relevant exclusions do not apply. Plan management is a sensible approach to ensuring that Applicant spends NDIS amounts in accordance with his plan.
[29] As report by SB at B26, page 816 of the Joint Hearing Bundle.
[30] See the report of LB at B23, pages 802 to 804 of the Joint Hearing Bundle.
Issue (b): Weber Baby Q Premium BBQ and accessories
The Applicant requests approximately $500 to purchase a Weber Baby Q Premium BBQ and accessories. This item was recommended by LB, Occupational Therapist, in November 2023. LB describes the need for the BBQ as:
[DRVV] is unable to safely use the oven and cooktop in his home due to concerns around burning himself. An alternative to this is using a portable BBQ outdoors, which will allow him to cook healthy foods in a safer manner, and with minimal need for cleaning up afterwards. [DRVV] has extensively researched alternative methods of preparing foods and has identified that he will be able to use the above BBQ, without the risks of burns that he currently experiences if attempting to cook indoors. Using the BBQ will also eliminate the need for thorough cleaning afterwards, which is difficult with his high levels of fatigue and reduced hand function.[31]
[31] Joint Hearing Bundle, B24, page 813.
The Agency submits that the BBQ is now excluded by operation of the Transitional Rules:
Item 1(i) in schedule 2, clause 1 of the NDIS Supports Rules state that “standard household (including garden) items, appliances, tools and products” are an excluded NDIS support. It is submitted that a barbeque is a standard household or garden item or application, and is thus not an “NDIS support” under section 34(1)(f).
The barbeque could, feasibly, be a “standard commercially available household item” under section 7(3) of the NDIS Support Rules, and thus is amenable to a possible separate CEO determination as a replacement NDIS support. However, no application in the required form has been made by the Applicant, and such a determination has not been made either. In any event, this separate determination process would be outside the current jurisdiction of the Tribunal.[32]
[32] Respondent’s Outline of Submissions 22 November 2024, paragraphs 51 and 52.
In reply, the Applicant submits that:
… the reports in evidence and testimony by experts and applicants witnesses outweigh any objections by the Respondent to the funding this item, again the funding already exists and the Applicant is simply seeking the member stating it be funded in writing be the nature of this order for this item. The member should consider the item be clear to fund under the new instruments NDIS Transitional Items 2024 schedule 1 / 8- A,EC …[33]
[33] Applicant’s Final Submissions 6 January 2025.
Schedule 1, Item 8 of the Transitional Rules relates to the category ‘Assistive products for household tasks’ and items A, C and E are:
The provision of assistive products that support a participant to carry out domestic
and everyday actions and tasks within a participant’s home.
This includes the following:
(a) assistive products for the preparation of food and drink;
…
(c) additional costs to upgrade or modify standard household items to household
items that include accessibility features that address a participant’s support needs;
…
(e) maintenance, spare parts and consumable items specific to an assistive product.
The meaning of ‘assistive products’ is not defined of the Transitional Rules, however the term ‘standard item’ is defined in section 4 as being:
…an item that is not modified or adapted to address the functional impairments of the participant or prospective participant.
When Schedules 1 and 2 and Section 7 of the Transitional Rules refer to ‘standard household items’ or ‘standard commercially available household item’ I consider that this is intended to mean ‘standard item’ as defined in section 4.
In my view, the BBQ has not been upgraded or modified to include accessibility features that address the Applicant’s support needs. The BBQ, therefore, does not fall within Schedule 1, Item 8(a), (c) or (e).
The BBQ is a standard household item, appliance or product which falls within Schedule 2, Item 1(i) in the category ‘Day-to-day living costs—accommodation and household’. As it is a ‘Standard commercially available household item’ which has not been modified or adapted to address the functional impairments of the participant, it also could fall within Item 1 of the Table at section 7 of the Transitional Rules. I say could here as I agree with the Agency that consideration of whether a replacement support determination can be made under section 7 requires a separate request to the NDIS CEO and this is not a matter that is before the Tribunal.
As outlined above, the new sections 10 and 34(1)(f) of the NDIS Act, along with the Transitional Rules, have the effect that certain supports are not NDIS Supports and therefore cannot be funded in a SPS. It is clear to me that the Applicant’s request for a BBQ falls within this Schedule 2, Item 1(i) of the Transitional Rules. As the BBQ is now specifically excluded from being an NDIS Support, the Tribunal cannot be satisfied that this is reasonable and necessary supports that will be funded in a statement of participant supports for the Applicant as required by section 34(1)(f) of the NDIS Act. While this is a difficult conclusion to reach. As discussed above, there are identified risks to the Applicant’s wellbeing in engaging with further assessment or review processes. But this is the unavoidable conclusion that must be reached based on the current legislation and rules. I find that the Applicant’s request for a BBQ and accessories must be declined.
Issue (c): Apple watch
The Applicant also requests funding of approximately $700 for an Apple Watch. As with the BBQ above, the same conclusion must be reached in relation to the Apple Watch. The Agency is correct in submitting that:
Item 5(a) in schedule 2, clause 1 of the NDIS Supports Rules state that “jewellery and watches (including smart watches)” are an excluded NDIS support. It is submitted that the claimed apple watch is such an item and is thus not an “NDIS support” under section 34(1)(f).
The apple watch would also be “smart watch” under section 7(3) of the NDIS Support Rules, and thus is amenable to a possible separate CEO determination as a replacement NDIS support.[34]
[34] Respondent’s Outline of Submissions 22 November 2024, paragraphs 57 and 58.
Schedule 2, Item 5 is the Category ‘Day-to-day living costs—clothing and beauty’. The Apple Watch is a smart watch and falls within this exclusion. The Applicant may apply to the NDIS CEO for a replacement support determination under Section 7 of the Transitional Rules as smart watches are included in Item 2 of the replacement support determination table.
Understandably, the Applicant raises concerns with the fairness of such requested supports now being taken out of the scope of Tribunal’s decision-making process.[35] The Applicant refers to the decisions in Kioa v West[36] and Browne v Dunn[37] in support of these concerns. I have considered the Applicant’s submissions but, respectfully, do not consider that the Applicant has been denied procedural fairness in these circumstances.
[35] Applicant’s Final Submissions 6 January 2025.
[36] (1985) 159 CLR 550.
[37] (1893) 6 R 67.
Parliament has amended the NDIS legislation and applied some of these amendments to matters that are currently being considered by the Tribunal. This has removed the discretion of the Tribunal in relation to certain supports requests. The scope of the Tribunal’s jurisdiction is determined by Parliament and the Tribunal is bound to apply the legislative framework that governs the decision-making of matters that are being reviewed.[38] The hearing was held shortly after the legislation was amended and the commencement of the Transitional Rules. The witnesses were not required to have specifics of these rules put to them for their response. The parties were given an opportunity to makes submissions on the amendments after the hearing and they did so. Parliament has also enacted a process by which the Applicant may apply to the CEO for a replacement support determination.
[38] ART Act, section 12.
This is a difficult situation that the Applicant is presented with, and I am sympathetic to the notion that the amendments have changed the basis on which the evidence and submissions might have been directed, especially when the supports in dispute have been longstanding. In addition, the concerns noted earlier to the Applicant’s wellbeing are matters that I have considered carefully. However, I do not consider that there has been a denial of procedural fairness. It is possible that I am incorrect about this and, if required, the Applicant has further appeal rights to Tribunal’s Guidance and Appeals Panel, or to the Federal Court.[39]
Issue (d): Window tinting of house and vehicle
[39] ART Act, sections 123 and 172.
House windows
The Applicant seeks funding of approximately $400 for window tinting in his bedroom and ensuite bathroom. the applicant relies on the report of LB, occupational therapist, in which she states:
Window tinting to reduce light sensitivity given [DRVV’s] sensory aversions and nervous system dysregulation, which leads to overwhelm.[40]
[40] Page 840 of the Joint Hearing Bundle.
In oral evidence, LB also described the need for tinting as:
So the reasons from my perspective is to reduce that light sensitivity because when he becomes overwhelmed by his sensory world, he goes into anxiety and then shuts down and then he can’t function and light is a big thing. His sensory profile showed that he’s really sensitive to light and also, he becomes very anxious about people being able to see in as well. It really really causes him a lot of anxiety, so those are the two issues from my perspective.[41]
[41] Oral Evidence, Day Two.
The Applicant also said in his oral evidence that tinting: would not require landlord approval as is removable and is a disability modification; reflects heat as well as managed light, which reduces the need for air-conditioning; and lowering blinds is not suitable for all day use as this is isolating.[42] The Applicant submits that window tinting is a NDIS support under Schedule 1, Item 22(a) of the Transitional Rules which deals with changing a building’s structure, fixture or fittings.[43]
[42] Oral Evidence, Day Two.
[43] Applicant’s Final Submissions 6 January 2025.
The Agency submits:
Ms Lisa Brown, Occupational Therapist, was asked in evidence whether the Applicant’s light sensitivities could be remedies by blinds or curtains, she stated: “It depends on the size of windows and things like that. No, I can’t really, to be honest with you. I haven’t thoroughly explored that because there was – to be honest – so many other things. And really, I’m looking at his functional capacity. Really trying to determine why he requires these things. So, I’m sorry, I can’t really comment further on that.”
Having regard to the above, it is submitted that there is presently insufficient evidence to support a finding that the window tinting of the rooms of the house 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 (section 34(1)(c)) and whether the tinting will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice (section 34(1)(d)).
69. The actual cost of the tinting is unclear, and there is no assessment of the Applicant’s new home to determine whether the tinting is a feasible option, and whether there are other cheaper alternative options, such as use of curtains or blinds.
70. Even after the outcome of this application, the Applicant is free to obtain further quotes and/or material to support the request, and seek a reassessment of the SOPS under his plan.
…
73. Accordingly, it is also submitted that there is presently insufficient evidence to support a finding that the window tinting of the rooms of the house 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 (section 34(1)(c)) and whether the tinting will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice (section 34(1)(d)).[44]
[44] Respondent’s Outline of Submissions 22 November 2024, paragraphs 67 to 70 and 73.

Schedule 1, Item 22(a) Transitional Rules says that, in the category ‘Home modification design and construction’ the following are NDIS supports unless otherwise provided:
Supports that design, change or modify a participant’s home to help the participant
live as independently as possible and to live safely at home.
This includes the following:
(a) installing equipment or changing a building’s structure, fixture or fittings; …
I consider that window tinting is a change to a building’s fixtures and therefore is a NDIS support unless otherwise provided.
Regarding the Agency’s submission that there is insufficient information, I have considered the Home Modifications Guideline which states that:
Do you need an assessment for minor home modifications?
For all minor home modifications, you need an assessment from a home modification assessor. This is an occupational therapist who is qualified to recommend more detailed home modification supports. The assessment process may be more detailed depending on the type of home modification supports you need. We have a minor home modifications assessment template on our website. The type of provider who does this assessment depends on the category of your minor home modification. For category A minor home modifications, any occupational therapist can do your assessment, including your usual occupational therapist. The assessment process is streamlined because these home modifications are usually straightforward, low risk changes …
Do you need a quote for minor home modifications?
You usually don’t need to give us a quote for your minor home modifications, but you should keep any quotes for your records. We might ask to see them, and they’re important for warranties and audits. [45]
[45] NDIS Operational Guideline: Home modifications published 13 November 2024, page 14.
I have also considered the minor home modifications assessment template[46] referred to in the first paragraph above. I note that this template requires: details of the premises being modified; other assistive technology that has been considered; and the consent of the legal owner. While I acknowledge the Applicant’s evidence that landlord consent is not required, and that using blinds is not a suitable alternative, I agree with the Agency that window tinting in the Applicant’s current premises, and potential alternatives, has not been sufficiently considered by an occupational therapist. With suitable evidence, the Applicant may well satisfy the Agency that tinting is reasonable and necessary. Based on the present information, I am not satisfied that window tinting is a reasonable and necessary support to be funded in the Applicant’s SPS.
[46] windows
The Applicant also seeks funding for window tinting for his vehicle. The Applicant relies on the report of LB in which she says:
… [DRVV] is very sensory averse, as demonstrated in his Sensory Profile, it is important that sensory aspects are considered to reduce risk of overwhelm.
… tinted windows to reduce light and glare, and increase [DRVV’s] sense of safety as he is less visible to observers. [DRVV] has significant social and general anxiety, and it is therefore imperative that he can feel as comfortable as possible when accessing the community.[47]
[47] LB response to Agency questions dated 29 April 24, B30, page 835 of the Joint Hearing Bundle.
In oral evidence, the Applicant said that: he does not have a current quote as the amount requested will depend on his next leased vehicle; he estimates tinting will be approximately $400; he has permission from the vehicle owner for tinting; tinting is essential for use of his car; tinting assists with both heat and light; and that he also wear sunglasses when driving.[48]
[48] Oral Evidence, Day Two.
The Applicant also submits that window tinting is a NDIS support unless otherwise provided by virtue of the Transitional Rules, Schedule 1, Items 35(f) which deal with vehicle modifications.[49]
[49] Applicant’s Final Submissions 6 January 2025.
The Agency submits:
Again, the claim for car window tinting is devoid of detail. The actual cost of the tinting is unclear, and there is no assessment of the vehicle to determine whether the tinting is a feasible option, and whether there are other cheaper alternative options.[50]
[50] Respondent’s Outline of Submissions 22 November 2024, paragraph 72.
I have considered the Vehicle Modifications Guideline which states that:
If you only need a low cost piece of assistive technology for your vehicle you need to talk with your occupational therapist about what you need.
A low cost piece of assistive technology for your car or vehicle is generally an item that is:
ounder $1,500
oavailable off the shelf
oauthorised for use in a motor vehicle.
…
Although you’ll be able to buy some low cost equipment without an assessment from your occupational therapist, you need to get their advice for your safety.[51]
[51] NDIS Operational Guideline: Vehicle modifications and driving support published 12 April 2023, pages 16 and 18.
Unlike home modifications above, there does not appear to be a particular assessment template for low-cost assistive technology in a vehicle. The advice of an occupational therapist is required. In my view, the Applicant has provided a record of this advice from LB. Based on this advice and the Applicant’s lived experience, I am satisfied that the vehicle window tinting is related to the Applicant’s autism and anxiety.[52] The Applicant’s ability to use a vehicle if highly beneficial to his goal of independence and increases his social and economic participation.[53] The tinting is low cost and is value-for-money relative to the benefits achieved compared with the benefits achieved.[54] The Agency has not put forward any lower cost alternatives. I am not satisfied that there are lower cost alternative that achieve the same outcome.[55] The Applicant does not have family who are able to assist him with driving.[56] Vehicle modifications are an NDIS support and are not excluded under the Transitional Rules.[57] Tinting is most appropriately funded under the NDIS as it relates directly to the Applicant’s disability needs and is not available under another system of support.[58] Overall, I consider that window tinting for the Applicant’s vehicle is a reasonable and necessary support to be funded in the Applicant’s SPS.
[52] NDIS Act, section 34(1)(aa).
[53] Sections 34(1)(a), (b) and (d).
[54] Section 34(1)(c).
[55] Support Rules, Rule 3.1(a).
[56] Section 34(1)(e).
[57] Sections 10 and 34(1)(f) as amended.
[58] Section 34(1)(f) prior to amendment.
It is correct that I do not have enough information to specifically determine the amount that should be provided. However, I note that the applicant has previously purchased vehicle window tinting. I agree with the analysis on SM Buxton in James[59] and Pavlakis,[60] that DRVV will be eligible for reimbursement back to the start date of the original plan under review, being 15 March 2022. This will need to be calculated and reimbursed subject to the Applicant providing evidence of the purchase amounts. The Applicant should also provide condition that the tinting previously provided, or that the tinting he is seeking in his next vehicle is authorised for use in the relevant vehicle. It is reasonable and necessary to include funding for vehicle window tinting, in the Applicant’s SPS, subject to the Applicant providing receipts, quotes and confirmation from the supplier that the tinting is authorised.
[59] James and National Disability Insurance Agency [2023] AATA 2991 (‘James’).
[60] Pavlakis and National Disability Insurance Agency [2023] AATA 2485.
Issue (e): Assistance animal support and maintenance
The Applicant seeks funding of $4,800 per year for costs associated with maintaining his assistance animal to including veterinary expenses, food, medicines, grooming, equipment, training aids, and compliance with community access requirements.[61] The Applicant relies on the opinion of LB who says that the Applicant requires R:
• To guide him through open spaces and through crowded indoor and outdoor
environments safely without suffering overwhelming panic attacks.
• R will block other people from entering DRVV’s personal space as this leads to
overwhelm.
• To alleviate anxiety with social interaction and communication in indoor and outdoor public places.
• R has been witnessed to meet the standards of hygiene and behaviours that are appropriate for an animal in a public place. I have observed letters / emails from various persons confirming the impeccable behaviour of R when outdoors, and I have observed this behaviour around [DRVV] at home.[62]
[61] Report of LB, B28, page 817 of the Joint Hearing Bundle. The amount sought was confirmed by the Applicant on Day 1 of the hearing.
[62] LB response to Agency questions dated 29 April 24, B30, page 836 of the Joint Hearing Bundle.
Assistance animals are included in Schedule 1 of the Transitional rules which specify ‘Supports that are NDIS supports unless otherwise provided’. Schedule 1, Item 2, Column 2 states that the supports that can be provided in the assistance animals category are:
Support provided by an eligible assistance animal. This includes the following:
(a) assessment, matching and provision of an eligible assistance animal;
(b) dietary needs;
(c) grooming;
(d) veterinary services including flea and worm treatments, medication, and
vaccinations;
(e) yearly reviews to maintain accreditation.
Section 4 of the Transitional Rules defines an eligible assistance animal as meaning a dog or other animal that is:
(a) accredited under a law of a State or Territory that provides for the
accreditation of animals trained to assist a person with a disability to
alleviate the effect of the disability; or
(b) accredited by an animal training organisation prescribed in regulations
made under section 132 of the Disability Discrimination Act 1992 for the
purposes of paragraph 9(2)(b) of that Act; or
(c) accredited by a registered NDIS provider who is registered to provide
assistance animals under section 73E of the NDIS Act; or
(d) trained to assist a person with a disability to alleviate the effect of the
disability and to meet standards of hygiene and behaviour that are
appropriate for an animal in a public place.
Part (d) of this definition is now broader than the requirement in the Assistance Animal Guideline which states that:
We’ll only fund an assistance animal that has been, or is being, trained by an accredited assistance animal provider. The provider must be able to show us evidence they’re accredited to train and qualify an assistance animal. This assistance animal needs to meet your disability related support needs. An accredited assistance animal provider may be registered with the NDIS Quality and Safeguards Commission (the Commission). Generally, if a provider isn’t registered with the Commission, they’ll be registered with the relevant state or territory authority for assistance animals.[63]
[63] NDIS Operational Guideline: Assistance animals including dog guides, published 20 June 2022, page 16.
I agree with the conclusion reached by SM Buxton in James that the requirement for training by an accredited assistance animal provider in the Assistance Animal Guideline goes beyond what is necessary to determine if the support is reasonable and necessary and is inconsistent with the statutory requirement that reasonable and necessary supports be funded.[64] These guidelines are now inconsistent with the definition of an eligible assistance animal in the Transitional Rules. In my view, it is correct to apply the definition in the Transitional Rules.
[64] James(n60), paragraph 66.
Item 7 of Schedule 2 of Transitional Rules states that, in the category “Day-to-day living costs— pets”, the following are not generally NDIS supports:
(a) animals, including pets and companion animals (other
than eligible assistance animals);
(b) pet food for animals (other than eligible assistance
animals included in a participant’s plan);
(c) veterinarian costs, pet boarding, pet grooming for animals
(other than eligible assistance animals included in a
participant’s plan);
(d) pet insurance;
(e) taxidermy and pet cremations, burials or funerals.
The Applicant says that, in 2019, he took R to a registered Guide, Hearing and Assistance Dog trainer who considered that R would be suitable for training as an assistance animal. The trainer did not provide R with training, but gave the Applicant training modules, and the Applicant trained R.[65] A large number of training logs were included in the joint hearing bundle and demonstrate a structured and well documented approach to R’s training.[66] SB provided a letter of support indicating that R had:
been trained to assist [DRVV] with his disability to alleviate the effects of his disability as follows:
oTo guide him through open spaces and through crowded indoor and outdoor environments safely without suffering overwhelming panic attacks.
oTo alleviate anxiety with social interaction and communication in indoor and outdoor public places.
oR has been witnessed to meet the standards of hygiene and behaviour that are appropriate for an animal in a public place.[67]
[65] Applicant’s Statement 24 October 2024.
[66] Pages 860 to 1146.
[67] Report of SB, 12 April 2019, B3, page 218 of the Joint Hearing Bundle.
The Applicant also provided a statutory declaration by him that R met the appropriate hygiene and behaviour standards for animal in a public place,[68] and a veterinary declaration stating that R had appropriate obedience, temperament, hygiene and health for public access.[69] I do not accept the Agency’s submission that there must be some evidence from a dog trainer to confirm that R has, in fact, been satisfactorily trained to assist a person with a disability to alleviate the effect of the disability and to meet standards of hygiene and behaviour that are appropriate for an animal in a public place. I am satisfied that R falls within part (d) of the definition of an eligible assistance animal as R has been trained to assist DRVV to alleviate the effect of his disability and to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.
[68] B7, page 307 of the Joint Hearing Bundle.
[69] B8, page 307 of the Joint Hearing Bundle.
The Assistance Animal Guideline also states that:
We need to make sure the assistance animal is related to your disability, otherwise we can’t fund it. The La Trobe University report defines assistance animal as “an animal that is trained to perform at least 3 tasks or behaviours which mitigate the effects of a person’s disability”. This means an assistance animal that has been trained to do at least 3 specific things that you need, but can’t do because of your disability.
The Applicant’s mother has stated:
His Assistance Dog R has been a blessing. She enables him to have the
confidence to leave the house. Prior to this he did not want to venture outside
or exercise. I have personally seen how she has the ability to sense when he is
suffering from anxiety and/or from depression. She springs into action and
provides him with a degree of comfort to help him feel safe and secure. I have
also seen the calming effect that she has on him when he is having a full blown
episode/meltdown. With R by his side he is able to attend necessary
appointments, have some recreational time, and do some shopping when the
need arises. She gives him the stability and comfort he requires when he has
feelings of despair and hopelessness, or he is in a situation that he feels he is
unable to cope with. She lives inside the home with him and is always by his
side. She goes absolutely everywhere with him, including the car. R must
be kept clean, groomed and maintained. Because of [DRVV’s] disability he is
incapable of doing this himself.[70]
[70] AM Statement, 13 May 2024, B32, page 846 of the Joint Hearing Bundle.
In his oral evidence, the Applicant confirmed the three tasks he says that R performs are: blocking, being where R keeps separation between the Applicant and another person coming close to the Applicant; alerting the Applicant to situations that may cause an ‘autistic meltdown’ and leading him away from these settings; and responding to such episodes if they cannot be avoided, through applying paw pressure on his chest. This assistance is also described in the report of LB which said:
[DRVV’s] main support is in the form of his animals, particularly his assistance dog R, who is able to coregulate him and provide input when [DRVV] moves into severe dysregulation, which can see him fall to the ground (e.g. when in a supermarket). He is unable to function without R, who is constantly by his side.[71]
[71] LB report, 19 December 2023, B26 and page 790 of the Joint Hearing Bundle.
I accept that there are three tasks or behaviours for assessing under the guidelines and consider that the assistance provided by R is related to DRVV’s disability. The use of R is related to the Applicant’s autism and panic attacks. [72] The Applicant’s lived experience, his mother’s statement, and the professional opinions of his psychologist and occupational therapist, are very supportive of the benefits to DRVV of an assistance animal. As the funding requested is only for ongoing maintenance of R and does not include the purchase and training of R, this support is value-for-money relative to the benefits achieved. [73] R assists the Applicant pursue his goal of increased independence with accessing the community and facilitates his social participation.[74] I am not satisfied that there are lower cost alternatives that achieve the same outcome.[75] R has demonstrated to be effective in assisting the Applicant in accessing the community.[76] The Applicant does not have family nearby who are able to provide the assistance that R provides.[77] An assistance animal is an NDIS support and is not excluded under the Transitional Rules.[78] R most appropriately funded under the NDIS as R relates directly to the Applicant’s disability needs and is not available under another system of support.[79] Overall, I consider that maintenance of R is a reasonable and necessary support to be funded in the Applicant’s SPS.
[72] NDIS Act, section 34(1)(aa).
[73] Section 34(1)(c).
[74] Sections 34(1)(a) and (b).
[75] Support Rules, Rule 3.1(a).
[76] Section 34(1)(d).
[77] Section 34(1)(e).
[78] Sections 10 and 34(1)(f) as amended.
[79] Section 34(1)(f) prior to amendment.
As with the vehicle window tinting above, I do not have enough information before me to specifically determine whether funding of $4,800 as requested is the appropriate amount. This is a matter for plan implementation. DRVV is eligible for reimbursement of these maintenance expense, subject to appropriate substantiation, back to the start date of the original plan under review, being 15 March 2022.
Issue (f) Hobby business assistance
The Applicant seeks $15,000 per annum for hobby business assistance. I won’t go into the details of the hobby business as this might tend to allow the Applicant to be identified from these reasons. The Applicant relies on the recommendation of LB, occupational therapist, in which she states that:
[DRVV] requires weekly support with promoting and managing his business, which he is unable to do independently because of his disability. Although his business is already set up, he requires assistance with communication, marketing, etc.[80]
[80] Report of LB, B23, page 810 of the Joint Hearing Bundle.
The Applicant’s psychologist, SB, also stated that:
[DRVV] requires funding to support access a vocational pathway involving further development of his hobby business … business assistance, marketing, sales, seo skills support, regulatory compliance assistance. The business is mobile so suitable vehicle access is required. [DRVV] also reports that … advocate assistance is required for upgrading … approvals. Cost is $15,000 per year.
[DRVV] also requires advocate funding to represent and protect him (as a participant with skill deficits due to ASD) from discrimination or falling foul of regulatory issues. This role can be a support worker role in the plan with a cost of $5000 per year.
Support worker funding for ASD skillset shortfalls cost of $15000 per year to support safe participation in community and social activities.[81]
[81] Report of SB, B26, page 817 of the Joint Hearing Bundle.

In his oral evidence, the Applicant said that this assistance was not for accounting or licensing, but for dealing with practical issues such as holding R’s lead while the Applicant was operating equipment. He also described his fear of using the phone to call people and how this impacted his ability to develop this hobby into a business. In her oral evidence, LB provided an example which also related to social interaction, saying that a support worker could assist by attending events with the Applicant to promote his business. This seems to step back somewhat from what has been recommended by the allied health professionals and does make it difficult to quantify what support is required.
The Agency submits that:
… there is presently insufficient evidence to support a finding employment assistance 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 (section 34(1)(c)). This is because there is insufficient evidence to determine how much the employment assistance actually is.
The Agency also submits that:
… item 2(k) in schedule 2 of the NDIS Supports Rules excludes “Business development costs and business skills development costs, including company registration, book-keeping, accounting services or software.” Item 18(d) in schedule 2 also excludes “employer responsibilities, including recruitment processes, work arrangements, transport for work activities”. It is submitted that all of the above claimed supports fall within these items, and are thus not an “NDIS Support” under section 34(1)(f).
However, the Agency requests that funding should be included for six hours of employment related assessment and counselling x $193.99 per hour = $1,163.94.[82] It is not clear how this number of hours was arrived at.
[82] This submission and the two above are made in the Respondent’s Outline of Submissions 22 November 2024, at paragraphs 112, 113 and 117.
The Applicant says that the requested supports are NDIS supports under Schedule 1, Items 4 (b) and (c) of the Transitional Rules.[83] Item 4 is the category “Assistance to access and maintain employment or higher education”. The supports in the category are:
Supports that build a participant’s capacity to successfully prepare for, find or keep
employment in the open labour market (including self-employment and
micro-enterprise) or the supported labour market.
This includes the following:
(a) employment preparation complementary to that delivered while at school and
when leaving school;
(b) assistance for a participant to transition to employment;
(c) further education and training.
[83] Applicant’s Final Submissions 6 January 2025.
I agree with the Agency’s submission that there is insufficient information to properly assess this request. The Applicant, and the allied health professionals, will need to be more specific about what type of support it requested, the duration and frequency of the support, and the basis for the request I expect that some of what was initially requested is now prevented from funding as being ‘business development costs and business skills development costs' in Schedule 2, Item (2)(k). The requests relating to advocacy and regulatory approval might also be prevented as a legal cost under Item (2)(h).
To the extent that the Applicant is saying that this is a hobby and a recreation activity, such supports may be able to be accessed as part of his current plan which includes $14,052.48 for community access, social and recreation activities.
I have also considered the Work and study guideline which says:
What if you are self-employed or want to start your own business?
We may be able to fund NDIS supports you need because of your disability to help you work in your own business. This is where you work for yourself and not a company or business. You earn your income directly from your own business, trade or profession. There are a number of programs that can help you if you want to work in your own business. Learn more about supports to help you start your own business. [84]
[84] NDIS Operational Guideline: Work and study published 12 November 2024, page 13.
This paragraph in this guideline links to a Workforce Australia web page which offers coaching, workshops, training support as part of a Self-employment Program and ‘SelfStart’ guides.[85] A request for hobby business assistance should include an outline of what mainstream services have been accessed and why these are not sufficient for the Applicant.
[85] >
For the same reasons, I cannot be satisfied that the Agency’s proposed amount of employment related assessment and counselling is reasonable and necessary. If the Agency wishes to include this in the Applicant’s plan, they can do so.
Issue (g): Meal preparation and delivery service
The Applicant seeks $5,000 funding per year for a meal preparation and delivery service. In oral evidence, the Applicant explained that his support works do assist preparing meals but that he avoids having supports workers in his home every day as this is overwhelming. The meal preparation and delivery service is for the times he does not have a support worker available. He is seeking to use a service which does not include the cost of the food itself, just the preparation and delivery.[86] The Applicant relies on the recommendations of LB and SB in relation to this. SB says that:
[DRVV] requires support from a Dietician, access to pre-prepared meals and suitable cooking and safety equipment. Cost reported $10,000 per year.[87]
[86] Oral evidence, Day 2.
[87] SB report, B26, page 818 of the Joint Hearing Bundle.
LB says that:
Although physically independent with his self-cares, [DRVV] has trouble with certain aspects of ensuring he can care for himself. His visual / motor planning deficit means that he often cannot coordinate his hands, and this leads to safety concerns. For example, he will frequently burn himself if using an oven because he cannot coordinate himself to be able to remove hot items. … He generally avoids being around hot items because of past events where he has come to harm.
A meal delivery service is therefore highly recommended for [DRVV] to ensure he has access to at least one healthy meal each day because he struggles to maintain a nutritious diet. [DRVV] reports to not eat on some days, especially when feeling depressed. He also suffers weight gain through consuming low quality ready meals and unhealthy snack foods, which he is forced to eat due to financial constraints and his limited capacity to prepare meals.[88]
[88] LB report, B23, page 802 of the Joint Hearing Bundle.
The Agency submits that:
… there is presently insufficient evidence to support a finding that the meal delivery service 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 (section 34(1)(c)). This is because there is insufficient evidence to determine how much the meal funding actually is.
Further, it is submitted that the claimed meal delivery service duplicates other supports delivered under alternative funding under rule 5.1(c) of the NDIS Act, namely support worker assistance to prepare meals for the Applicant. The fact that the Applicant may not want support workers in his house every day does not preclude them from preparing the meals on the day that they are there, and placing those meals in the fridge for consumption the next day.[89]
[89] Respondent’s Outline of Submissions 22 November 2024, at paragraphs 81 and 82.
I do not accept the Agency’s first submission. The Applicant provided a document from a service provider[90] which indicated the NDIS funded component of meals range from $7.67 to $8.37. The fact that this is undated is not significant from my point of view. It allows the Agency to estimate that five meals per week, over 52 weeks, would range from $1,994.20 to $2,176.20 per year. If an updated quote was required, this would be a matter for implementation.
[90] B43, undated.
However, I do agree with the Agency’s second submission. The Applicant has support workers who can assist with shopping and preparing a meal. It would seem a simple matter for a support worker to prepare more than one serving of a meal so that a meal is also available on days that the Applicant chooses not to have a support worker present. The meal preparation and delivery service does duplicate the Applicant’s support worker assistance and is prevented from being funded under Rule 5.1(c) of the Support Rules.
Issue (g): Removalist services
The Applicant seeks reimbursement of $1,190 for removalist services for his house move in October 2024. The Applicant provided an invoice for this which was accepted as evidence on the second day of the hearing as B46. In oral evidence, the Applicant explained that he packed the smaller, fragile items but otherwise needed the removalists to manage moving the larger items, particularly those that needed to be disassembled.
The Applicant submits that: his parents are unable to assist him with relocation; formal and informal supports are not available for this task; and his motor skills are inadequate for this task. The Applicant says that removalist costs can be a NDIS Support under Schedule 1, Items 24 of the Transitional Rules in the category ‘Innovative community participation’. The Applicant also relies on the Federal court decision in Warwick[91] as authority for a finding that moving house is not a day-to-day living cost.[92]
[91]Warwick v National Disability Insurance Agency [2024] FCA 616 (‘Warwick’).
[92]Applicant’s Final Submissions 6 January 2025.
The Agency submits that:
The Applicant explained in evidence that, when he moved on 8 October 2024, he packed the small items, such as plates and things like that, and the removalists transported mainly a number of large items that needed to be carried and disassembled. The Applicant transported the fragile items himself.
There is no evidence that the Applicant required the removalists because of his disability. He needed the removalists to move the large items to his new place. In the premises, it is submitted that the removalist costs are not related to the disability, by virtue of section 5.1(b) of the Support Rules.[93]
[93] Respondent’s Outline of Submissions 22 November 2024, paragraphs 115 and 116.
It is not entirely clear to which category of the Transitional Rules is the best fit for removalist costs. Schedule 1, Item 24 says that the following are NDIS supports unless otherwise provided in the category ‘Innovative community participation’:
Supports that are tailored for individual participants with extraordinary support
needs to assist them to participate in the community.
Extraordinary support needs arise due to a participant’s specific situational and
personal circumstances.
I am not persuaded that this is the appropriate category, as I do not consider that removalist costs can be said to be innovative community participation. I have also considered whether Schedule 1, Item 1 might apply, being ‘Accommodation assistance or tenancy assistance’ but I would not describe removalist services as supports that ‘build capacity, guide, prompt, or assist a participant to do activities for finding or keeping appropriate accommodation’. Possibly the best fit in the Applicant’s circumstances is Schedule 1, Item 23 which says that ‘Supports that provide assistance with essential household tasks that a participant is not able to do themselves because of their disability’ are NDIS Supports unless otherwise provided. Potentially, packing and moving are household tasks that the Applicant needs assistance with due to impairments with his motor skills.
Removalist costs are not clearly excluded under Schedule 2, Item 1 which states that the following are not generally NDIS Supports in the category ‘Day-to-day living costs—accommodation and household’:
(a) rent, rental bonds, home and property deposits, stamp duty, mortgage repayments, and strata fees;
(b) purchase of land, or house and land packages;
(c) standard home security and maintenance costs, fencing, gates, and building repairs;
(d) pools, pool heating and maintenance, spa baths, saunas, and steam rooms;
(e) standard home repairs, home improvements, standard renovations and maintenance;
(f) water, gas and electricity bills, council rates, land taxes and levies …
I would note that the decision in Warwick was made prior to the Back On Track Amendments and commencement of the Transitional Rules. At paragraph 15 in Warwick, Justice Perram said:
The costs of engaging an agent to sell one’s home, the costs of moving from one home to another, conveyancing fees and the payment of stamp duty on the conveyance of a new home are not everyday costs which are incurred in the course of living for the purpose of living. To the contrary, they are extraordinary expenses to which not everyone has the good fortune to become liable and which, even amongst those who are that fortunate, can scarcely be described as ‘day-to-day’ costs.
I expect if Warwick was decided today a different conclusion would have to be reached, at least in respect of ‘stamp duty’ which is now clearly excluded from being a NDIS Support by Schedule 2, Item 1(a) of the Transitional Rules. However, the ‘costs of moving from one home to another’ are not specifically excluded in the Transitional Rules. To this extent, Warwick is an authority that the Tribunal is required to follow with regards to these not being ‘day-to-day’ costs.
However, the Agency is not submitting that removalist services are ‘day-to-day living costs’ which are excluded under Rule 5.1(d) of the Support Rules. The Agency instead relies on Rule 5.1(b) being that the need for a removalist ‘is not related to the participant’s disability’. In my view, this is correct. While the Applicant has said that his motor skills mean that a removalist is required, this is not consistent with his evidence that he packed the fragile items himself, and that he required assistance with larger items that needed reassembly. I consider that the need for a removalist was related to large items that required reassembly. This need is not one that is related to the Applicant’s disability. This is a need shared by most Australians. Under sections 33(5)(d) and 34(2) I am required to apply the NDIS rules. As Rule 5.1(b) is not met, I am not satisfied that the cost of a removalist is a support that is to be funded in the Applicant’s SPS.
Undertakings for implementation
The Applicant raised several concerns with the SPS which was made on 24 January 2025 following remittal by the Tribunal under section 85 of the ART Act. These concerns included that: the SPS had supports that he had not agreed to and wanted removed; the description of his profile, current supports, and goals and aspirations were incorrect; and funding for supports that had been previously agreed had not been included. The Applicant requested a directions hearing as he was concerned that these inaccuracies could impact my decision-making.
I held a directions hearing on 21 February 2025 to consider these concerns. The Applicant provided an example on page 18 of the 24 January 2025 SPS. In the description of his supports it states that the Applicant’s parents live in Victoria and his sister lives in Adelaide. This remains accurate. However, under the heading ‘How often do you receive this support?’ there is an entry which says ‘Regularly (3-5 times per year)’. This is not accurate. The Applicant says that he rarely receives direct support from his family. The Agency explained this entry was a result of data migration to a new ‘PACE’ system. This field was populated automatically and defaulted to selecting the first option in a drop-down list. The Agency said this was not amended in the 24 January 2025 SPS as this SPS was intended an interim plan to give the Applicant access to ongoing funding. In implementing a new plan following this decision, the Agency undertook to ensure that the Applicant is given an opportunity to identify and correct any errors in his profile, statement of goals and aspirations, and the description of existing supports.
The Applicant also referred to correspondence between himself and the Agency on 14 March 2024 in which agreement was reached on issues which he says were not reflected correctly in the most recent SPS. The Tribunal did not look at the details of this agreement as it was part of without-prejudice negotiations between the parties. The Agency undertook to review this correspondence to:
(a)address any discrepancy between what was agreed in good faith with the Applicant and the funding that has been included in the Assistance with Daily Life category in the current SPS; and,
(b)update the funding amounts to reflect changes to the NDIS Pricing Arrangements and Price Limits 2024-25.[94]
[94]
The requests for assistance animal maintenance and vehicle window tinting are reasonable and necessary supports to be included in the Applicant’s statement of participant supports. A reassessment date of 24 months with plan management is appropriate.
The decision of the Agency under review is set aside and remitted for reconsideration with the directions that the statement of participant supports includes:
(a)sufficient funding to meet the maintenance expenses for the Applicant’s assistance animal, with effect from 15 March 2022;
(b)sufficient funding for vehicle window tinting with effect from 15 March 2022;
(c)a reassessment date of 24 months after implementation of the new plan following this decision.
The remaining aspects of the statement of participant supports, including plan management, remain unchanged.

Dates of hearing: 23 and 24 October 2024

Date final submissions received: 6 January 2025

Representative for the Applicant: Self-represented

Solicitors for the Respondent:

Counsel for the Respondent:

Ms M Macor, seconded legal officer

Mr P Nolan, Darrow Chambers

Dates of hearing:	23 and 24 October 2024
Date final submissions received:	6 January 2025
Representative for the Applicant:	Self-represented
Solicitors for the Respondent: Counsel for the Respondent:	Ms M Macor, seconded legal officer Mr P Nolan, Darrow Chambers