Dudgeon and National Disability Insurance Agency (NDIS) - [2024] ARTA 154

Dudgeon and National Disability Insurance Agency (NDIS) [2024] ARTA 154 (20 December 2024)
Applicant/s:  Glen Dudgeon
Respondent:  National Disability Insurance Agency
Tribunal Number:                2023/1801

Tribunal:Senior Member C Shepherd
Place:Adelaide
Date:20 December 2024

Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with a direction that the Applicant’s Statement of Participant Supports include funding for:

1. home modifications as proposed by the Specifications for Downstairs Living (H15)
2. 24/7 1:1 care with inactive overnight support.

..................[SGND]......................................................
Senior Member C Shepherd
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – Specialist Disability Accommodation – Request for Home and Living Supports – Proposed Home Modifications - NDIS Home Modifications Guideline – reasonable and necessary - decision under review set aside and remitted for reconsideration
Legislation
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024
Cases
National Disability Insurance Agency v WRMF (2020) 276 FCR 415
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Public Trustee of South Australia as Litigation Representative for Isherwood and National Disability insurance Agency (No 2) [2023] FCA 852
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
Statement of Reasons

The Applicant is 51 years of age and was accepted as a participant in the National Disability Insurance Scheme (NDIS) in 2017.
As a result of a brain injury in 1996, the Applicant is legally blind, experiences right-sided weakness, has epilepsy and a moderate-severe intellectual disability, and is at risk of choking. He requires support for all aspects of his daily living.[1]
[1] Applicant’s Statement of Facts, Issues and Contentions, Exhibit 1, H1, p 6 [2]-[3]; Respondent’s Statements of Facts, Issues and Contentions, Exhibit 1, H2, p 1 [5].
In February 2022, the Applicant submitted a ‘Request for Home and Living Supports’. The reasons for the request were indicated to be that the Applicant wanted to ‘live more independently’, ‘the health or age of my primary carer’ and that the Applicant did not ‘have enough informal supports’. The following reason was also included:
My parents are ageing. Under our house is an area to make a unit. Bathroom needs to be built. [2]
[2] Request for Home and Living Supports signed 7 February 2022, Exhibit 1, H8, p 112-130. The form was signed by Marie Dudgeon as the Applicant’s nominee and legally appointed decision maker.
The Respondent approved a plan for the period 10 September 2022 – 10 September 2023 (original decision) which included the following funded supports.
(a)Core Supports, $271,791.29 of funding for Supported Independent Living (SIL) described as being for ‘… my day to day needs living with 1 other person. This will help me build my skills to live as independently as possible…’
(b)Capital Supports, Specialist Disability Accommodation (SDA) ‘up to $26,748 per year (Quote Required)’:
I am eligible for SDA as follows: the design category is Improved Liveability, building type is House, 2 residents, location is NSW-Richmond-Tweed. I can access alternative SDA categories and locations within my assessed amount. [3]
[3] NDIS Plan, Exhibit 1, H20, p 248-263.
On 21 September 2022, the Applicant sought a review of the original decision.[4]
[4] Request for a Review of a Decision, Exhibit 1, H12, p 172 - 180.
On 24 February 2023, a delegate affirmed the original decision under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). The delegate was not satisfied that funding for home modifications met s 34(1)(c) or s 34(1)(d) of the NDIS Act. The delegate decided that the Applicant was eligible to receive SDA funding ‘if he chooses to access [SDA] in the future’.[5]
[5] Internal review decision, Exhibit 1, H4, p 86-92.
The Applicant lodged an application for review in the Tribunal in March 2023 which included the following information:
… This new plan details information such as approval for SDA Shared (This was not applied for, and [the Applicant] will not be moving out of his current address into a SDA setting instead the request was for modifications to the downstairs granny flat to be suitable – Not needing SDA funding SIL Shared (This was not applied for and [the Applicant] will not be sharing his granny flat with any other participants nor will be he be moving into a SIL property)…[6]
[6] Application for Review of Decision, 20 March 2023, Exhibit 1, H3, page 35.
The Tribunal’s jurisdiction is enlivened by the operation of s 103 of the NDIS Act and s 12 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act).
ISSUES
The issue for determination is whether each of the following are reasonable and necessary supports for the purposes of funding under the NDIS Act:
(a)proposed home modifications
(b)24/7 1:1 supports with inactive overnight support.[7]
[7] Applicant’s Statement of Facts, Issues and Contentions, Exhibit 1, H1; Respondent’s Statement of Facts, Issues and Contentions, Exhibit 1, H2.
Scope of review
At a case management direction hearing on 30 October 2024 and at the outset of the hearing on 4 November 2024, the Applicant’s representative indicated that funding for music therapy was recently rejected (new issue). The Applicant’s representative said that the Applicant had not yet applied for an internal review but that it was open to the Tribunal to consider the new issue in this proceeding.
Counsel for the Respondent submitted that he could not assist the Tribunal and that no evidence or submissions had been filed on the new issue.
From the submission made by the Applicant’s representative it seems that the new issue may be taken to form part of the application before the Tribunal by the operation of s 103(2)(d) of the NDIS Act.[8]
[8] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.
Section 53 of the ART Act permits the Tribunal, in a proceeding for review of a decision, to determine the scope of the review by limiting the questions of fact, the evidence and the issues that it considers. The revised Explanatory Memorandum to the ART Act states that s 53 ‘does not permit the Tribunal to limit its own jurisdiction conferred by legislation or to neglect to consider issues that are central to the decision under review’.[9]
[9] Revised Explanatory Memorandum, Act No.40 of 2024, p 65.
Considering the Tribunal’s objectives under s 9 of the ART Act, I determined to proceed with the hearing and limit the scope of review to the issues identified in the parties’ Statements of Facts, Issues and Contentions. I explained to the parties my reasons for doing so.
(a)The application was lodged at the Tribunal in March 2023 and concerns a decision made in September 2022. To include the new issue at this time risks further delay for the parties obtain additional evidence and consider the new issue.
(b)It appeared that statutory avenues are available to the applicant to address the new issue.
(c)No current evidence or submissions were filed with the Tribunal in relation to the new issue.
The new issue was not pressed by the Applicant.
LEGAL FRAMEWORK
Part 2 of Chapter 3 of the NDIS Act concerns participants’ plans.
Section 31 relevantly states that the preparation, variation, reassessment and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable:
(a)   be individualised; and
(b)   be directed by the participant; and
(c)   where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(ca) where relevant, recognise and respect the relationship between participants and their families and carers; and
…
(da) if the participant and the participant’s carers agree – strengthen and build the capacity of families and carers to support the participant in adult life; and
(e) consider the availability to the participant of informal support and other support services generally available to any person in the community; and
(f) support communities to respond to the individual goals and needs of participants; and
(g) be underpinned by the right of the participant to exercise control over his or her own life; and
(h) advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i) maximise the choice and independence of the participant; and
(j) facilitate tailored and flexible responses to the individual goals and needs of the participant; and …[10]
[10] Section 31 was amended by s 25 of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 to insert ‘(ca) where relevant, recognise and respect the relationship between participants and their families and carers; and’.
Section 33 sets out the matters that must be included in a participant’s plan which are; a participant’s statement of goals and aspirations (s 33(1)), and a statement of participant supports (SOPS) (s 33(2)).
Section 33(2)(b) requires that a plan include a SOPS, prepared with the participant and approved by the CEO, that specifies among other things, the reasonable and necessary supports (if any) that will be funded.
In deciding whether to approve a SOPS under s 33(2), s 33(5) relevantly requires the decision-maker to:
(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; and
….
Section 34(1) states:
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 support:
(aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(a)   the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)   the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)   the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)   the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)   the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)    the support is a NDIS support for the participant.[11]
[11] Section 34 was amended by the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 by insertion of ‘(aa)’ and ‘(f)’.
Section 34(2) provides that the National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).
Section 35 states 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.
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Support Rules) are described as ‘made for the purposes of sections 33 and 34 of the Act’. The Support Rules ‘are about assessment and determination of the reasonable and necessary supports that will be funded…’ for participants under the NDIS.[12]
PROPOSED HOME MODIFICATION
[12] Rule 1.1, Support Rules.
Scope
The proposed home modification is described variously in evidence as ‘a unit’, ‘downstairs’, ‘granny flat’, ‘flat’, ‘basement’, ‘modified space’, ‘independent living area’, ‘home renovations’ and ‘home modifications’. In these reasons I use any witness’s own words or the term ‘proposed home modification’.
In his Statement of Facts, Issues and Contentions, the Applicant submitted that the support sought was ‘in line with Scope of Works and Building Quote provided by Australian Home Disability Services dated 1 July 2024’.[13] In post-hearing written submissions, the Applicant submitted that that the proposed home modification sought comprises ‘bathroom, kitchen, accessible laundry, level floor and flat access and entry. As per Scope of Works of Bernadette Collins Joint Hearing Bundle (JHB) 186 to 215’.[14]
[13] Applicant’s Statement of Facts, Issues and Contentions, Exhibit 1, H1, p 8.
[14] Applicant’s written submissions, 13 November 2024.
The document at pages 186 to 215 of the Joint Hearing Book is described as H15 Specifications for Downstairs Living, Bernadette Collins, Occupational Therapist. It comprises:
(a)photographs and floor plans (p 186-190)
(b)a bathroom scope of works (p 191)
(c)an updated quote for bathroom modifications recommended by Bernadette Collins from Lismore Home Modifications Service Inc dated 20 December 2021 in the amount of $29,995 (p 192)
(d)a laundry scope of works (p 193)
(e)an updated quote for laundry modification as requested from Lismore Home Modifications Service Inc dated 20 December 2021 in the amount of $8,975 (p 194)
(f)a document entitled ‘Proposed Area: Existing downstairs window to outside to be replaced with external door’, scope of works (p 195)
(g)an updated quote for access modification recommended by Bernadette Collins from Lismore Home Modifications Service Inc dated 20 December 2021 in the amount of $5,875 (p 196)
(h)a document entitled ‘Proposed Area: replace all floors to be consistent and level and ensure all doors wide enough for walker/wheelchair access’, scope of works (p 197)
(i)updated quote for floor coverings as required’ from Lismore Home Modifications Service Inc dated 20 December 2021 in the amount of $8,360 (p 198)
(j)a document entitled ‘Proposed Area: stairlift on internal stairs’, scope of works (p 199-200)
(k)a quotation for 1 x New Acorn 130 Heavy Duty Indoor Straight Stairlift from Acorn Stairlifts dated 10 March 2021 in the amount of $6,382 (p 201)
(l)a document entitled ‘Proposed area: install sink in kitchenette’, scope of works (p 202)
(m)an updated quote for kitchenette modifications as requested from Lismore Home Modifications Service Inc dated 20 December 2021 in the amount of $10,675 (p 203)
(n)Occupational Therapy Housing Options report, Bernadette Collins, Occupational Therapist, 3 December 2021 (Collins report) (p 204-215).[15]
[15] Specifications for Downstairs Living, Exhibit 1, H15, p 186 - 215.
Ms Collins described the proposed home modification as follows.
The family require modifications to allow a purpose-built area downstairs for [the Applicant]. The long-term intention is for [the Applicant] to live downstairs in a fully modified space specific to his needs with Todd Dudgeon and his family living upstairs and providing support, when [the Applicant]’s parents are no longer able to provide support. [16]
[16] Occupational Therapy Housing Options Report, Bernadette Collins, 4 December 2021 (Collins report), Exhibit 1, H 15, p 204.
The Respondent submits that Ms Collins’ scope of work should not be funded, and that the Applicant has reverted to a scope of works and associated pricing that is over three years old, and that there is no current quotation for the works that the Applicant proposes be funded.[17]
[17] Respondent’s written submissions, 25 November 2024 [14]-[15].
Section 34(1) criteria
Section 34(1)(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 or the early intervention requirements
The Respondent contends that the available evidence does not establish that the proposed home modification is necessary to address the Applicant’s ‘disability-specific needs’, and that ‘this requirement arises out of s 34(1)(aa) in conjunction with rules 5.1(b) and 7.19(b) in particular and the application of the NDIS Home Modification Guidelines’.[18]
[18] Respondent’s written submissions, 25 November 2024; Respondent’s Statement of Facts, Issues and Contentions, Exhibit 1, H2, p 11-19 [31].
The Respondent submits that ‘the claim fails at the threshold for the reasons given at paragraphs 32-35 of the Respondent’s SOFIC’, which state:
[32] The Respondent considers that the requested support fails at the threshold because the Applicant’s disability-specific needs are presently being met. The available evidence suggests that the Applicant’s needs will continue to be met for the foreseeable future.
[33] The Respondent understands that the renovations are proposed to cater for some future, unspecified date, when the Applicant’s family circumstances may change. The Respondent accepts that succession planning is important. The Respondent also respects the desire of the family to ensure continuity of informal family support to the Applicant for the remainder of his life.
[34] There is, however, no concrete evidence about when Todd and Sarah and their family propose to move into the family home to continue the role presently occupied by Mr and Mrs Dudgeon. Paid carers assist the Applicant during the day. Mrs Dudgeon is reported to be in good health and can provide informal support in the evenings (in combination with other paid supports as required). The Respondent understands Mr Dudgeon has some health concerns but there is, at least at present, limited information about the extent to which those health concerns affect his ability to provide informal care to the Applicant.
[35] The time period by which Mr and Mrs Dudgeon may no longer be able to provide informal support to the Applicant is not known. That time may not come for some 10-15 years. It could occur earlier than that. The time it will take to perform the renovations is expected to take only 1-2 months. Even allowing for succession planning, consideration of capital funding for home modifications via the NDIS should occur proximate to the time by which the supports are reasonably likely to be required.[19]
[19] Respondent’s Statement of Facts, Issues and Contentions, Exhibit 1, H2, p 11-19, [32]-[35].
Evidence about the Applicant’s family and their living arrangements

The Applicant lives at [REDACTED – s70(1) Administrative Review Tribunal Act 2024 (Cth)] (the property) with his parents, Trevor Dudgeon (the Applicant’s father) and Marie Dudgeon (the Applicant’s mother) (together the Applicant’s parents).[20] The Applicant and his parents live in the upstairs area of the property.[21] Since about 2022, the Applicant’s nephew, Brayden Peck has lived in the downstairs area of the property.[22]
[20] Marie Dudgeon, oral evidence, 4 November 2024; Statement of Marie and Trevor Dudgeon, 27 July 2023, Exhibit 1, H3, p 475-479.
[21] Collins report, Exhibit 1, H15, p 204; Marie Dudgeon, oral evidence, 4 November 2024.
[22] Todd Dudgeon, oral evidence, 4 November 2024; Brayden Peck, oral evidence, 4 November 2024; Marie Dudgeon, oral evidence, 4 November 2024.
The Applicant’s parents have provided housing, care and support to the Applicant in adulthood since 1996. The Applicant’s father is now 75 years of age and the Applicant’s mother is 72 years of age.[23]
[23] Statement of Marie Dudgeon and Trevor Dudgeon, 27 July 2023, Exhibit 1, H38, p 475-479. Marie Dudgeon, oral evidence, 4 November 2024.
The Applicant’s parents have granted the Applicant a right to continue to reside at the property in their wills.[24] The Applicant’s brother, Todd Dudgeon with his wife, Sarah Dudgeon, have agreed to take responsibility for the care of the Applicant when the Applicant’s parents are no longer able to do so. Todd Dudgeon and Sarah Dudgeon, with their children, anticipate moving into the property.[25]
[24] Statutory Declaration of Marie Dudgeon, Exhibit 1, H40, p 481. Statutory Declaration of Trevor Dudgeon, Exhibit 1, H41, p 482.
[25] Statement of Care of Todd Dudgeon and Sarah Dudgeon, Exhibit 1, H39, p 480; Todd Dudgeon, oral evidence, 4 November 2024.
There is no set timeframe on when the Applicant’s parents will move out of the property, and when Todd Dudgeon and his family will move into the property. The Applicant’s mother said that she does not know when she will move and plans to stay in the property as long as she can.[26]
[26] Marie Dudgeon, oral evidence, 4 November 2024; Todd Dudgeon, oral evidence, 4 November 2024.
When asked about the transition timeframe, the Applicant’s brother, Todd Dudgeon, said ‘I can’t say what the timeframe is’. He said that his father was ‘currently not in the best shape’ and ‘on a downward spiral’ and ‘I know it’s getting ever harder on Mum’. Todd Dudgeon said: ‘So it’s one of those things which I’m guessing is getting closer as we speak’. Todd Dudgeon agreed that his mother might live at the property for another 15 years.[27]
[27] Todd Dudgeon, oral evidence, 4 November 2024.
When asked whether Mr Peck would continue to live at the property if the proposed home modification takes place, the Applicant’s mother said: ‘We haven’t gone that far…we can’t make any decisions because we’ve got no decisions to make because we don’t know what’s happening’.[28] Mr Peck’s evidence was that ‘the whole point of the downstairs area is for [the Applicant]’ and ‘nothing else had been discussed’.[29]
[28] Marie Dudgeon, oral evidence, 4 November 2024.
[29] Brayden Peck, oral evidence, 4 November 2024.
The Applicant’s mother gave evidence that the Applicant’s father was diagnosed with prostate cancer, Parkinson’s Disease and has developed Lewy Body Dementia.[30]
[30] Statement of Marie Dudgeon and Trevor Dudgeon, 27 July 2023, Exhibit 1, H38, p 476; Marie Dudgeon, oral evidence, 4 November 2024.
In a letter dated 14 August 2024, Dr Hugo Morales Briceno, Medical Specialist, Movement Disorders Service, Parkinson’s Disease Nursing Service, stated:
[the Applicant’s father] was alert…He had severe dysarthria and was only able to produce a few words but seemingly coherent language…He had problems with his mouth movements, unable to open and close his mouth, but was able to protrude his tongue and move his tongue inside the mouth…He had tongue myokymia…
…
There was moderate to severe bradykinesia when finger tapping, with bilateral kinetic apraxia more so on the right. When I placed a pair of keys in his right hand, he could not grasp and detect the object, nor could he with his left hand. He had trouble moving his gaze up and down the left and right…
…
His syndrome is very atypical with a combination of Parkinsonism, dementia, apraxia, anarthria and striatal atrophy. Based on the examination and imaging findings, I gave them my clinical impression, and I didn’t have an explanation for his syndrome at this point.[31]
[31] Report of Dr Hugo Morales Briceno, Exhibit 1, H26, p 381-382.
The Applicant’s mother said that in March 2024, the Applicant’s father had a bleed on his brain and it caused significant problems with his balance and memory. She said:
…he’s become more feeble, more frail…and requiring…a lot of care, a lot of balance care, a lot of showering care, a lot of night care…And it’s basically got to the stage at the moment that I am feeding him.[32]
[32] Marie Dudgeon, oral evidence, 4 November 2024.
The Applicant’s mother described the Applicant’s father experiencing choking, memory loss, delirium, and said that ‘he’s basically physically and mentally starting to go really downhill’.[33]
[33] Marie Dudgeon, oral evidence, 4 November 2024.
The Applicant’s mother described the care she presently provides for her husband, the Applicant’s father. She said that she physically assists him to get out of bed in the morning, puts on his pants and slippers, helps him to balance and takes him to the bathroom. She explained that she assists him to shower, undress, wash, dry and get dressed. During the night she gets up to take him to the toilet. The Applicant’s mother explained that the Applicant’s father’s condition is being investigated, with medication being changed and not yet regular with care including showering, toileting, balancing and feeding. The Applicant’s mother said that she takes the Applicant’s father to the doctor ‘a bit often at the moment’.[34]
[34] Marie Dudgeon, oral evidence, 4 November 2024.
The Applicant’s mother said that the Applicant’s father is on a Level 3 Home Care Package and receives support for outings, speech therapy and physiotherapy, and assistance with a shower two afternoons per week.[35]
[35] Marie Dudgeon, oral evidence, 4 November 2024.
The Applicant’s mother said that a lot of the responsibilities have fallen to her, and she now provides care to both the Applicant and to her husband.[36]
[36] Statement of Marie and Trevor Dudgeon, 27 July 2023, Exhibit 1, H38, p 477; Oral evidence of Marie Dudgeon, Oral evidence of Todd Dudgeon, 4 November 2024.
Melissa Denner gave evidence that she has provided care and support to the Applicant for about fifteen years.[37] A statement of Ms Denner, dated 28 July 2023, was tendered by the parties.[38] Ms Denner observed that not only are the Applicant’s parents ageing, but the Applicant is also ageing. Ms Denner considers that the Applicant ‘needs more autonomy’ and would ‘benefit greatly from being in a calmer environment’.[39] Ms Denner said that since she provided her statement ‘[the Applicant’s father] has declined quite rapidly’ and ‘the decline in [the Applicant’s father] actually affects [the Applicant] quite dramatically’. Ms Denner referred to the Applicant reacting very badly to ‘disruption’ and said:
[The Applicant’s father] has Parkinson’s so at any time it’s a very inclusive set up and at any time we are eating, [the Applicant’s father] or [the Applicant] can choke.[40]
[37] Melissa Denner, oral evidence, 4 November 2024.
[38] Statement of Melissa Denner, 28 July 2023, Exhibit 1, H31, p 398-399. [The Applicant does not rely on the statement at H17, p 220].
[39] Melissa Denner, oral evidence, 4 November 2024.
[40] Melissa Denner, oral evidence, 4 November 2024.
Expert evidence
On 8 February 2024, Annarie Hildebrand, Registered Occupational Therapist, assessed the Applicant and produced a report dated 8 March 2024 (Hildebrand report).[41] Ms Hildebrand was not called to give evidence, or required for cross-examination. Ms Hildebrand reported that:
[The Applicant] currently has access to suitable accommodation upstairs as the bathroom has been modified to disability standards and meets his needs. However, with the succession planning that the family has arranged provision of a separate accessible flat downstairs that will enable [the Applicant]’s family (brother and sister-in-law) to have privacy without the intrusion of carers and having to work around [the Applicant’s] routine. Provision of an accessible flat will enable [the Applicant] to live independently the same as his peers and meet his NDIS goal to build his independence and live in the granny flat with his funded supports.[42]
…
[The Applicant] can be easily overwhelmed and become dysregulated with too much noise. Having his own flat downstairs [will] enable him to have a quiet space he can retire to self-regulate.[43]
[41] Hildebrand report, Exhibit 1, H42.
[42] Hildebrand report, Exhibit 1, H42, p 505.
[43] Hildebrand report, Exhibit 1, H42, p 504.
In response to the question ‘Please provide any other advice or recommendations you have in respect of the requested home modifications’, Ms Hildebrand responded:
Provision of the proposed home modifications will allow [the Applicant] to have an ordinary life at home where he feels a sense of belonging, safety, and security. It will also give [the Applicant] more choice and control over where he lives, who he lives with, and the supports he uses.[44]
[44] Hildebrand report, Exhibit 1, H42, p 512.
Ms Hildebrand concluded that it was a ‘beneficial and sustainable option’ for the Applicant to live alone with 24/7 support workers for reasons including that:
[The Applicant]’s choice is to remain living with his family where he has lifelong tenure which implies that he would not have to move house for the remainder of his life.
Living with his family also implies that his care arrangements are closely monitored to ensure that he receives the care that he needs.[45]
[45] Hildebrand report, Exhibit 1, H42, p 521.
Phillip Chow, Registered Occupational Therapist, assessed the Applicant on 28 July 2022 and produced reports dated 15 August 2022 (first Chow report) and 26 July 2023 (second Chow report).[46] Mr Chow was not called to give evidence, or required for cross-examination. Mr Chow’s opinion on the proposed home modification included the following.
The planning of [the Applicant]’s future needs is required to ensure adequate supports are in place to facilitate his ongoing ability to remain living at home, participate in the community, and live a meaningful life.[47]
…
[The Applicant] and his family are reportedly awaiting a NDIS decision regarding the funding of proposed home modifications…which will support [the Applicant] to have increased independence and privacy as appropriate for his age and life stage.[48]
…
[The Applicant]’s parents are at a life stage where it is not recommended for them to continue providing the level of care that they are currently providing, due to the impact it is having on their health and wellbeing. Additionally, [the Applicant] is at a life stage where it would be appropriate for him to have greater independence and privacy from his parents.[49]
…
[The Applicant] requires the recommended support model to effectively transition into supported independent living, reduce carer burden, avoid functional deterioration, and prevent unnecessary hospital admission.[50]
[46] First Chow report, Exhibit 1, H10, p 133; Second Chow report, Exhibit 1, H29 p 394.
[47] First Chow report, Exhibit 1, H10, p 135.
[48] First Chow report, Exhibit 1, H10, p 136.
[49] First Chow report, Exhibit 1, H10, p 149.
[50] Second Chow report, Exhibit 1, H29, p 394.
Mr Chow’s recommendations included ‘ongoing engagement with previous OT to complete home modification process…’.[51]
[51] First Chow report, Exhibit 1, H10, p 150.
In her report, Ms Collins stated that ‘the most appropriate housing solution is to modify the existing downstairs area of the family home to allow a purpose-built area’ for the Applicant. Ms Collins’ opinion was that:
It is not recommended that [the Applicant] live in a home with multiple residents due to his blindness and vulnerability and is [sic] inability to tolerate noisy environments.
…
In this way informal supports can gradually decrease and formal supports increase, whilst [the Applicant] has the family support when required. [The Applicant] will need to transition to gradually build skills.[52]
[52] Collins report, Exhibit 1, H15, p 214-215.
Ms Collins stated:
The modifications are necessary as this is [the Applicant]’s primary residence, and without modification, [the Applicant] will be required to remain upstairs which is not suitable long-term. He requires his own area that is modified specific to his needs and disability…[53]
…
[The Applicant]’s primary residence in its current condition has a significant and adverse impact on the sustainability of his current living and care arrangements due to manual handling risk, falls risk and injury to himself as his parents age.[54]
[53] Complex home Modification Assessment Template, Exhibit 1, H3, p 55.
[54] Complex Home Modification Template, Exhibit 1, H 3, p 55.
In oral evidence, Ms Collins said that because of the Applicant’s brain injury and vision impairment, learning a new environment is difficult for him. Ms Collins qualified her evidence in that she has not seen the Applicant at home for twelve months. Ms Collins agreed that the Applicant’s current living environment meets his disability needs and that he benefits from incidental exposure to his family.[55]
[55] Bernadette Collins, oral evidence, 5 November 2024.
Specialist Disability Accommodation (SDA)
The Applicant submits that the Respondent, by it’s recommendation that the Applicant should be supported by an SDA property concedes that the Applicant’s current living arrangement is unsustainable.[56]
[56] Applicant’s written submissions, 13 November 2024.
The Respondent submits that:
…the Applicant…presents his case as a choice between SDA and his proposal for the Respondent to renovate the basement of his parents’ house’. That distinction lacks merit for two reasons.
First, the proposed renovation is not permissible under the Act and Rules…It is therefore not relevant whether the renovations that the Applicant proposes may cost less than SDA.
Second, the Respondent does not seek to impose SDA on the Applicant. The Respondent’s position is that the Applicant’s needs are presently being met under the current arrangements (and noting that the Respondent has proposed additional carer support, as outlined above, as meeting the ‘reasonable and necessary’ criteria).
The Applicant’s family has made it clear that the Applicant does not want SDA. The Respondent respects the right of the Applicant to determine his own future with the ongoing involvement of his family. SDA was proposed as a support that the Applicant and his family could access should some event or circumstance occur that meant that such accommodation was required (noting that the Applicant does not own his own house and cannot live without support of some kind).[57]
[57] Respondent’s written submissions, 25 November 2024 [19]-[22].
Conclusion in relation to s 34(1)(aa)
Section 34(1)(aa) requires the Tribunal to be satisfied that the support is necessary to address the needs of the Applicant arising from an impairment in relation to which he meets the disability requirements under the NDIS Act.
I find it uncontroversial that the Applicant meets the disability requirements through impairments arising from an acquired brain injury and epilepsy. Those impairments are both physical and cognitive.[58] The Respondent submits that the Applicant’s disability-specific needs are presently met under his current living arrangements.
[58] Technical Advice and Practice Improvement Branch advice, Exhibit 1, H48, p 564; Described in the Respondent’s Statement of Facts, Issues and Contentions and in the Applicant’s Statement of Facts, Issues and Contentions.
Whether the Applicant’s ‘disability-specific needs’ are presently met may be a relevant consideration in determining whether s 34(1)(aa) is satisfied. However, it is not the only factor. In this case, I consider that the following expert opinions are relevant:
(o)that the proposed home modification ‘is a beneficial and sustainable option’ for the Applicant[59]
(p)that ‘the planning of [the Applicant]’s future needs is required to ensure adequate supports are in place to facilitate his ongoing ability to remain living at home, participate in the community, and live a meaningful life’.[60]
(q)that ‘the most appropriate housing solution is to modify the existing downstairs area of the family home to allow a purpose-built area’ for the Applicant. [61]
[59] Hildebrand report, Exhibit 1, H42, p 521.
[60] First Chow report, Exhibit 1, H10, p 135.
[61] Collins report, Exhibit 1, H15, p 214-215.
The expert witness evidence described above was not challenged, and there is no expert witness evidence to the contrary.
As a general proposition, I agree with the Respondent’s submission that ‘consideration of capital funding for home modification via the NDIS should occur proximate to the time by which the supports are reasonably likely to be required’.[62] However, I consider any timeframe is circumstance-specific and depends on the support in question.
[62] Respondent’s Statement of Facts, Issues and Contentions at [35].
I accept that there is no set timeframe on when the Applicant’s parents will move out of the property and when the Applicant’s brother and his family will move into the property. However, I am satisfied, having considered the evidence about the Applicant’s current living arrangements and the expert witness evidence described above, that there is sufficient proximity such that the proposed home modification is necessary to address the needs of the Applicant arising from impairments in relation to which his meets the disability requirements under the NDIS Act.
Relevantly, the NDIS Home Modifications Guideline anticipates planning for the future.
We want to provide the best option for support in your home, now and in the longer term.
…
We need to get information about your current and future needs.
…
We’ll also think about if your needs and your home and living arrangements are likely to change during your plan. This helps us to make sure the home modification will meet your current and future needs.
…
We need to think about…how your disability needs may change over time and if the home modification will help you in the long term…how long you plan on staying in your home, and if the home modification is good value for this length of time…[63]
[63] NDIS Home Modifications Guideline, 11 October 2022, Exhibit 1, H55, p 738.
I am satisfied that the proposed home modification is necessary to address the needs of the Applicant arising from impairments in relation to which he meets the disability requirements under the NDIS Act.
Section 34(1)(a): The support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations
In the Applicant’s NDIS plan for 10 September 2022 – 10 September 2023, the Applicant’s goals are described as follows.
To increase my independence and to do things like walking across the kitchen at home with my cane unassisted.
To improve my speech and communication so I can do things like order items and communicate for myself when out in the community.
To maintain and build social networks and continue participating in activities such as recording another song for use on the music group Christmas CD.
To build my life and employment skills in order to become more independent e.g. volunteering.
Transition to living in my own granny flat (once the bathroom modification are complete).
To build my independence and sustain my informal supports.[64]
[64] NDIS Plan (10 September 2022 – 10 September 2023), Exhibit 1, H20, p 250-263.

Ms Hildebrand relevantly reports the following.
[The Applicant] loves his family and wants to stay in his family home.[65]
…
[The Applicant] enjoys being part of his family and having access to his parents, brother and sister-in-law as it gives him a sense of belonging and security.[66]
…
[65] Hildebrand report, Exhibit 1, H42, p 488.
[66] Hildebrand report, Exhibit 1, H42, p 504.
Ms Denner’s evidence was that the Applicant wants to remain living with his family. In her written statement she said:
There is no substitute for the quality of life that results in [the Applicant] living downstairs with his immediate family with the support of his wider family and importantly [the Applicant] being able to have a voice in his life via choice and control.[67]
[67] Hildebrand report, Exhibit 1, H31, p 399.
Ms Denner explained in oral evidence that:
[The Applicant’s] desire and his goal is to stay within the family home but have more independence, have more autonomy, be able to still see them on a daily basis…they can still be part of his daily life skills but not being so responsible for his daily life skills that the carers are more responsible.
…
[The Applicant] may not have great speech ability…but he knows exactly what’s going on…He knows all of the emotions and he can also express how he feels…. He’d love to have some separation. He’d still like to be able to be part of the family…[68]
[68] Melissa Denner, oral evidence, 4 November 2024.
One of the Applicant’s goals is ‘to transition to living in my own granny flat’ and I am satisfied that the proposed home modification will assist the Applicant to pursue that goal. A further goal is ‘to build my independence and sustain my informal supports’. Based on Ms Hildebrand’s and Ms Denner’s evidence, I am satisfied that the proposed home modification will assist the Applicant to build his independence and sustain his informal supports.
Section 34(1)(b) The support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation
Ms Hildebrand reported as follows:
With the installation of a stairlift [the Applicant] will be able to access the upstairs area safely with support from a carer and participate in day-to-day family activities such as socialising, watching TV or eating their meals together.
Provision of downstairs facility will give him the ability to have his own private space.[69]
…
[The Applicant] relies on his family and carers to facilitate social interaction. [The Applicant enjoys being part of his family and doing activities such as eating meals and watching television together (his mother will verbalise what is happening on the TV).[70]
[69] Hildebrand report, Exhibit 1, H42, p 503.
[70] Hildebrand report, Exhibit 1, H42, p 515.
Based on Ms Hildebrand’s evidence, I am satisfied that the support will assist the Applicant to undertake activities, so as to facilitate his social and economic participation.
Section 34(1)(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
The scope of works relied upon by the Applicant for the proposed home modification, being the Specifications for Downstairs Living, Bernadette Collins[71] was prepared three years ago, and the quote totalled $72,222. An updated quote may reflect an increase in costs. However, I do not consider an outdated quote for the proposed home modification to be an impediment to it potentially being a reasonable and necessary support.
[71] Specifications for Downstairs Living, Exhibit 1, H15, p 186 - 215.
Rule 3.1 of the Support Rules provides that the CEO is to consider the matters set out at rule 3.1(a)-(f) in deciding whether a support represents value for money in that the costs of the support are reasonable relative to both the benefits achieved and the cost of alternative support.
Rule 3.1(a): Whether there are comparable supports which would achieve the same outcome at a substantially lower cost
The Respondent submits that the support is not value for money when the Applicant already has access to suitable living arrangements for the foreseeable future.[72] I do not accept this submission. As discussed above, I am satisfied that the proposed home modification is necessary to address the needs of the Applicant arising from impairments in relation to which he meets the disability requirements under the NDIS Act. Ms Collins reported that the Applicant:
…only has access to the upstairs area while [the Applicant’s parents] are living upstairs and agreeable to him to do so. Once they relocate and their older son and his family move in upstairs, [the Applicant] does not have the option of staying upstairs. He will need to relocate to downstairs or find alternative accommodation options.[73]
[72] Respondent’s written submissions, 25 November 2024 at [47].
[73] Letter of Bernadette Collins, Exhibit 1, H16, p 217.
The Respondent submits that it is not appropriate to assess the cost of the proposed home modifications against SDA in circumstances where the family is adamant that they do not want it and will not use it.[74] The Respondent left the funding for SDA in the Applicant’s plan and reasoned that the Applicant ‘did not have to use the funds if it was not required’.[75]
[74] Respondent’s written submissions, 25 November 2024 at [48].
[75] Respondent’s Statement of Facts, Issues and Contentions, Exhibit 1, H2, p 13 at [19].
I accept that the approved funding for SDA is not immediately comparable to the cost of the proposed home modification. This is because the benefits or outcomes anticipated to be achieved by each are not comparable, specifically that the Applicant would not be living with his family in SDA. However, the cost of SDA is relevant to rule 3.1(c) of the Support Rules in considering whether funding the proposed home modification is likely to reduce the cost of the funding supports for the Applicant in the long-term.
I find that there are no comparable supports that would achieve the same outcome for the Applicant at a substantially lower cost.
Rule 3.1(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
Ms Hildebrand reported that:
…provision of the proposed home modifications will allow [the Applicant] to have an ordinary life at home, where he feels a sense of belonging, safety, and security. It will also give [the Applicant] more choice and control over where he lives, who he lives with, and the supports he uses.[76]
[76] Hildebrand report, Exhibit 1, H42, p 512.
Ms Hildebrand was of the opinion that ‘living in his familiar family home with daily access to his family is likely to be more beneficial for his mental health and wellbeing and also provide value for money’.[77]
[77] Hildebrand report, Exhibit 1, H42, p 507.
Ms Hildebrand noted:
Due to his blindness, cognitive impairment and poor mobility [the Applicant] will always require high levels of 1:1 support for the remainder of his life. Modifications will improve and maintain his quality of life and help to meet his NDIS goals.[78]
[78] Hildebrand report, Exhibit 1, H42, p 506.
Ms Hildebrand also considered that the proposed home modification ‘improves the efficiency of care delivered to [the Applicant]’.[79]
[79] Hildebrand report, Exhibit 1, H 42, p 506.
Ms Denner said that the Applicant being ‘downstairs’ would benefit him ‘enormously’ as he would be ‘able to have more focused care' and ‘his life skills would develop a lot more’.[80] Ms Denner’s view was that ‘there is no substitute for the quality of life that results in [the Applicant] living downstairs with this immediate family with the support of his wider family and importantly, [the Applicant] being able to have a voice in his life via choice and control’.[81]
[80] Melissa Denner, oral evidence, 4 November 2024.
[81] Statement of Melissa Denner, Exhibit 1, H31, p 398 - 399.
I find that Ms Hildebrand’s and Ms Denner’s evidence supports a view that the proposed home modification will substantially improve the life stage outcomes for, and be of long-term benefit to, the Applicant.
Rule 3.1(c): Whether funding or provision of the support is likely to reduce the cost of the funding or supports for the participant in the long-term
Ms Hildebrand said:
The current modifications proposed will be a one-off cost and enable [the Applicant] to remain in his family home. It also improves the efficiency of care delivered to [the Applicant]. As [the Applicant] requires high levels of person to person care all day his daily care rates are likely to be the same as for SIL accommodation. He will not require ongoing SDA funding in his NDIS plan which will reduce his overall yearly NDIS plan budget considerably.[82]
…
The requested modifications will not reduce the cost of funding for formal support however it will enable [the Applicant] to live safely on his own within his family home with the level of care he needs and meeting his NDIS goal to live in the granny flat. Also he will not need SDA funding in his NDIA budget reducing the cost of his yearly NDIS plan and will therefore be value for money.[83]
… the cost of modifying his home is a one-off cost whilst living in SDA requires ongoing funding in his NDIS budget…SDA funding is likely to be significantly higher over the duration of his NDIS plans when compared to a one-off payment to modify his home. In addition, moving to SDA accommodation will not improve or prevent his disability from getting worse, or reduce his supports needs. Living in his familiar family home with daily access to his family is likely to be more beneficial for his mental health and wellbeing and also provide value for money.[84]
[82] Hildebrand report, Exhibit 1, H42, p 506.
[83] Hildebrand report, Exhibit 1, H42, p 507.
[84] Hildebrand report, Exhibit 1, H42, p 507.
The original decision included SDA ‘up to $26,748 per year (Quote Required)’.[85] NDIA Technical Advice and Practice Improvement Branch advice dated 30 September 2024 indicates that the Applicant was eligible for SDA with ‘Adjusted Annual SDA Amount 2024/2025 $74,526’.[86]
[85] Original decision, Exhibit 1, H 20, p 262.
[86] NDIA Technical Advice and Practice Improvement Branch advice, 30 September 2024, Exhibit 1, H48, p 565.
Ms Collins reported that the proposed home modification is a:
…cost-effective housing option for [the Applicant] as he requires a high level of support and supervision, and by living at his parents home in a purpose built granny flat, his parents (and his brother) can provide informal support on an ongoing basis reducing care costs and allowing him to live in an safe quiet environment.[87]
[87] Collins report, Exhibit 1, H15, p 213.
I accept that that funding of the proposed home modification is likely to reduce the cost of funding SDA for the Applicant in the long-term. The proposed home modification will not reduce the cost of formal support, but I accept Ms Hildebrand’s evidence that it may improve the efficiency of care delivered to the Applicant, and Ms Collins’ evidence that it will facilitate the Applicant’s family to provide informal support on an ongoing basis which may reduce care costs.
Rule 3.1(d)(i): The comparative cost of purchasing or leasing the equipment or modifications, and (ii) whether there are any expected changes in technology or the participants circumstances in the short term that would make it inappropriate to fund the equipment or modifications
The scope of works relied upon by the Applicant for the proposed home modification was prepared three years ago and I consider it likely that an updated quote will be higher. However, I do not consider it is inappropriate to fund the proposed home modification.
Rule 3.1(e): Whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides
I consider it will be necessary to obtain updated quote(s) for the proposed home modification.
Rule 3.1(f): Whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of support (for example, some home modifications may reduce a participant’s need for home care)
Ms Hildebrand considered that:
…provision of an accessible flat will enable [the Applicant] to live independently the same as his peers and meet his NDIS goal to build his independence and live in the granny flat with his funded supports.[88]
[88] Hildebrand report, Exhibit 1, H42, p 505.
Ms Hildebrand considers that the proposed home modification will likely result in him not requiring SDA in the future. [89]
[89] Hildebrand report, Exhibit 1, H42, p 507.
Based on Ms Hildebrand’s evidence, I find that the proposed home modification will increase the Applicant’s independence and reduce his need for SDA in the future.
Conclusion in relation to s 34(1)(c)
I am satisfied, based on the evidence described above and having applied the Support Rules, that the proposed home modification 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)(d): The support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice
In deciding whether the support will be, or is likely to be, effective and beneficial for the participant having regard to current good practice, rule 3.2 of the Support Rules states that the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) Published and referred literature and any consensus of expert opinion;
(b) The lived experience of the participant or their carers;
(c) Anything the Agency has learnt through delivery of the NDIS.
Rule 3.3 provides that in deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary, seek expert opinion.
Ms Denner gave evidence that she has worked with the Applicant for 15 years. Given the length of time concerned, I give significant weight to her lived experience of working with the Applicant. After giving evidence about the Applicant’s current living arrangements and the effect of the Applicant’s father’s ill-health on the household, Ms Denner said that the Applicant being downstairs would benefit him ‘enormously’ as he would be ‘able to have more focused care' and ‘his life skills would develop a lot more’.[90] Ms Denner’s view was that ‘there is no substitute for the quality of life that results in [the Applicant] living downstairs with this immediate family with the support of his wider family and importantly, [the Applicant] being able to have a voice in his life via choice and control’.[91]
[90] Melissa Denner, oral evidence, 4 November 2024.
[91] Statement of Melissa Denner, Exhibit 1, H31, p 398 - 399.
Ms Hildebrand said:
The current modifications will be a one-off cost and enable [the Applicant] to remain in his family home. It will also improve the efficiency of care delivered to [the Applicant].[92]
[92] Hildebrand report, Exhibit 1, H42, p 506.
Ms Hildebrand reported that ‘provision of the proposed home modifications will allow [the Applicant] to have an ordinary life at home, where he feels a sense of belonging, safety, and security. It will also give [the Applicant] more choice and control over where he lives, who he lives with, and the supports he uses’.[93]
[93] Hildebrand report, Exhibit 1, H42, p 512.
Ms Hildebrand stated that ‘living in his familiar family home with daily access to his family is likely to be more beneficial for his mental health and wellbeing and also provide value for money’.[94]
[94] Hildebrand report, Exhibit 1, H42, p 507.
Based on Ms Hildebrand’s and Ms Denner’s evidence, I find that the proposed home modification will be, or is likely to be, effective and beneficial for the Applicant, having regard to current good practice.
Section 34(1)(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
The Respondent submits that the Applicant’s disability-specific needs are presently being met under this current living arrangements and will continue to be met for the foreseeable future.[95]
[95] Respondent’s written submissions, 25 November 2024, p 3 at [9].
Rule 3.4(b) provides that in deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters (for participants that are not children).
Rule 3.4(b)(i): The extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community
Ms Collins reported that the Applicant:
…only has access to the upstairs area while [the Applicant’s parents] are living upstairs and agreeable to him to do so. Once they relocate and their older son and his family move in upstairs, [the Applicant] does not have the option of staying upstairs. He will need to relocate to downstairs or find alternative accommodation options.[96]
[96] Letter of Bernadette Collins, Exhibit 1, H16, p 217.
Ms Collins stated:
[The Applicant]’s primary residence in its current condition has a significant and adverse impact on the sustainability of his current living and care arrangements due to manual handling risk, falls risk and injury to himself as his parents age.[97]
[97] Complex Home Modification Template, Exhibit 1, H 3, p 55.
Ms Hildebrand considers that the proposed home modification will ‘ensure continuity of care and ensure that [the Applicant] is safe and have the care he needs, whilst still living within his family home’.[98]
Rule 3.4(b)(ii): The suitability of family members and carers to provide requires including such factors as: (A) the age and capacity of the participant’s family members and carers, including the extent to which supports are available to sustain them in their caring role; and (B) the intensity and type of support required, whether it is age and gender appropriate for a family member or carer to be providing that care; and (C) the extent of any risks to the long-term wellbeing of any of the family members or carers…
[98] Hildebrand report, Exhibit 1, H42, p 505.
The Applicant’s parents are now 75 and 72 years of age, and evidence concerning the ill-health of the Applicant’s father is set out at paragraphs ‎38 to ‎46 above.
Ms Hildebrand considers that ‘living downstairs will reduce [the Applicant’s] reliance on his elder parents’.[99]
[99] Hildebrand report, Exhibit 1, H42, p 505.
Mr Chow’s opinion was that:
[The Applicant]’s parents are at a life stage where it is not recommended for them to continue providing the level of care that they are currently providing, due to the impact it is having on their health and wellbeing. Additionally, [the Applicant] is at a life stage where it would be appropriate for him to have greater independence and privacy from his parents.[100]
[100] First Chow report, Exhibit 1, H10, p 149.
In response to a question about the Applicant’s current reliance on informal support, Ms Hildebrand stated:
…While he is living with his parents it is reasonable that they continue to provide this support for the foreseeable future. However, their ability to provide support is declining and it is not sustainable due to their age and deteriorating health. Especial [sic] [the Applicant’s mother] is at risk of carer burnout as she under tremendous strain to care for her son and ailing husband, [The Applicant’s father] who has Lewy Body Dementia and Parkinson’s Disease which are both degenerative diseases.[101]
Rule 3.4(b)(iii): The extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes
[101] Hildebrand report, Exhibit 1, H42, p 520.

Ms Hildebrand considered that ‘provision of an accessible flat will enable [the Applicant] to live independently the same as his peers and meet his NDIS goal to build his independence and live in the granny flat with his funded supports’.[102]
[102] Hildebrand report, Exhibit 1, H42, p 505.
Mr Chow stated:
Increased formal supports would be effective and beneficial in increasing [the Applicant]’s independence and effectively sharing and/or shifting the caring responsibility from his parents to formal supports.[103]
Rule 3.4 (c) …the desirability of supporting and developing the potential contributions of informal supports and networks within their communities
[103] First Chow report, Exhibit 1, H10, p 150.
Mr Chow observed that ‘the supports listed above consider the significant contribution [the Applicant] and his family historically have made and will continue to make in [the Applicant]’s future’.[104]
[104] First Chow report, Exhibit 1, H10, p 150.
The Applicant’s brother and sister-in-law provided a Statement of Care declaring that they agree to ‘continue with the care’ of the Applicant in the event the Applicant’s parents are no longer able to do so. The anticipated care includes, amongst other things, rostering and organising care workers, paying accounts, grocery shopping, clothing shopping, family dinners, personal care shopping, managing finances, and booking and attending medical appointments.[105]
[105] Statement of Care, Todd Dudgeon and Sarah Dudgeon, Exhibit 1, H39, p 480.
Ms Collins reported that the proposed home modification would allow the Applicant to ‘live quietly with close informal supports’, and to ‘transition to his own living area and space, whilst having his informal support network at hand’.[106]
[106] Collins report, Exhibit 1, H15, p 214.
Conclusion in relation to s 34(1)(e)
I find that there are risks for the wellbeing of the Applicant, as the evidence of the experts described above tends to suggest that it is not sustainable for the Applicant to remain living in the upstairs area of the property with his parents due to their life-stage. I find that the proposed home modification would likely support and develop the potential contributions of the Applicant’s family to the Applicant’s care.
I am satisfied that the funding of the proposed home modification takes account of what it is reasonable to expect the Applicant’s family, carers, informal networks and the community to provide.
Section 34(1)(f): The support is an NDIS support
Respondent’s submissions
The Respondent submits that if the Tribunal finds that the claim does not ‘fail at the threshold’, the Respondent adopts [36]-[43] of its Statement of Facts, Issues and Contentions. The Respondent considers that the proposed home modification comprises general home renovations, which are not covered by the NDIS. The Respondent submits that the proposed modification is ‘most aptly characterised as one that converts a non-habitable space into a space that would be habitable for any person (albeit with some design features, such as flat floors and hobless showers, that are sympathetic to a person with a disability)’.[107]
[107] Respondent’s written submissions, 25 November 2024 at [15].
With reference to the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Transitional Rules), the Respondent submits that ‘standard or generic home renovations are not covered by the scheme’ and that:
…the scheme sensibly covers those modifications which are necessary to make a home accessible for a person having regard to the nature of their disability/impairments. For example, modifications which increase or support access, or functional capacity, in some way, having regard to their particular challenges.
This interpretation is consistent with the Home Modification Guidelines…They refer, for example, to ‘custom-built’ changes to a home; to the ‘things [a participant] finds difficult because of [their] disability’. They also…specifically exclude things like ‘renovations’ or ‘changes to your home layout’ where they do not relate to a participant’s disability support needs.
Also the ‘NDIS Operational Guidelines – Reasonable and Necessary Supports’ state that there must be a direct link or connection between a participant’s disability and the supports funded. Disability support needs are those that arise from, or are caused by, a participant’s disability. Supports that all people, with or without a disability, might want or need, are not usually funded.
As noted above, the proposed modifications are properly categorised as generic renovations that are designed to make a basement space habitable for any person. It is akin to the construction of a new storey or an extension in circumstances where walls need to be constructed, new electrics, plumbing installed along with a completely new bathroom, kitchen and laundry (with associated waterproofing and tiling and insulation works’.
The Respondent considers that some of the proposed works have an accessibility or disability specific dimension to them. There is, however, no current, detailed schedule described exactly what that disability-specific work involves or is likely to cost. Such discrete aspects of the proposed renovations might be fundable under the scheme if there was evidence to support and quantify them and the Tribunal concludes…that the claim did not fail at the threshold.[108]
[108] Respondent’s Statement of Facts, Issues and Contentions, Exhibit 1, H2, p 16 at [38] – [42].
The Respondent considers that it could fund discrete aspects of a scope of works that involved expenditure that was ‘properly related to an Applicant’s disability’ and that:
…the Applicant’s family would need to provide a proposal that identified and quantified which costs were attributable to what disability-specific needs as distinct from general home renovations necessary to make a space habitable for any person (such as tiling, waterproofing, insulation, plastering, extending services etc). Attention should also be given to the requirements of the relevant Award under which inactive overnight carers are engaged. Clause 25.7(c) of the Award requires carers to have a separate room and bed in which to sleep. The Respondent is not satisfied that the 2021 concept plan meets those requirements. No second bed, bedroom, or other separate sleeping arrangement is shown in the concept plan.[109]
[109] Respondent’s written submissions, 25 November 2024 at [18].
The Transitional Support Rules include the category ‘Day-to-day living costs - accommodation and household’ as ‘supports that generally are not NDIS supports’. That category includes:
(e) standard home repairs, home improvements, standard renovations and maintenance.[110]
[110] Item 1, Clause 1, Schedule 2.
The Transitional Support Rules include the category ‘Home modification design and construction’ as ‘supports that are NDIS supports unless otherwise provided’. The supports are described as follows.
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;
(b) Internal and external building modifications to remedy damage arising exclusively from disability-related behaviours or use of NDIS funded assistive technology or equipment;
(c) Regulatory certification requirements for works.[111]
[111] Item 22, Clause 1, Schedule 1.
The NDIS Home Modifications Guideline (Home Modifications Guideline), relevantly state that ‘we generally don’t fund the following features’:
Cosmetic finishes for fixtures, fittings, or materials, like tiles or tapware
…
Modifications that make your house bigger, like adding another story
…
Standard living costs or routine repairs and maintenance…
The Home Modifications Guideline states: ‘we can only fund home modifications if they relate to your disability’…’We don’t fund home modifications that aren’t related to your disability. These might include renovations, restorations or repairs, or changes to your home layout if they don’t relate to your disability support needs’.[112]
[112] NDIS Home Modification Guideline, Exhibit 1, H55, p 738.
‘Complex home modifications’ are included in the Home Modifications Guideline which are described as being ‘usually structural, custom-built changes to your home…’.
Evidence
The scope of the proposed home modification sought is described at paragraphs ‎25 - ‎27 above.
Ms Collins agreed that aspects of the proposed home modification comprised work that would be required for ‘standard renovation’ or are not ‘disability-specific’. For example, ‘supply and install standard taps to vanity and shower’, and ‘painting’ and ‘install kitchen cupboards and ‘plumbing’.[113]
[113] Bernadette Collins, oral evidence, 5 November 2024.
The Applicant’s mother said that the downstairs area has a shower and toilet, but it does not have waterproofing or basic tiling. She said that the downstairs would require a new roof because the roof is corrugated iron, but that the walls are brick.[114]
[114] Marie Dudgeon, oral evidence, 4 November 2024.
The Applicant’s brother, the Applicant’s mother and Mr Peck each gave evidence that Mr Peck has been living in the downstairs area since 2022. Mr Peck said he moved in ‘after the Lismore floods’ when it was difficult to access accommodation in the area. Mr Peck does not have any plans for the future but was aware of the family’s desire to modify the area for the Applicant.[115]
[115] Todd Dudgeon, oral evidence, 4 November 2024; Marie Dudgeon, oral evidence, 4 November 2024; Brayden Peck, oral evidence, 4 November 2024.
Conclusion in relation to s 34(1)(f)
The Federal Court in Public Trustee of South Australia as Litigation Representative for Isherwood and National Disability Insurance Agency relevantly observed:
…the fact that particular alterations might have the consequence that they will renovate or improve an aspect of a home does not, of itself, mean that the works are not a reasonable and necessary support. …
…
Alterations which serve no purpose as a support for a participant may be characterised as renovations or repairs but that would be because they are not a reasonable and necessary support. However, it is an error to approach proposed supports that take the form of alterations to a home on the basis that if they might be characterised as resulting in some form of improvement or renovation to the home that they cannot be reasonable and necessary supports.[116]
[116] Public Trustee of South Australia as Litigation Representative for Isherwood and National Disability insurance Agency (No 2) [2023] FCA 852 at [122]-[123].
I accept that works such as tiling, waterproofing, insulation, plastering and extending services may be required in modifying or renovating any home. However, I do not consider that the proposed home modification may be characterised as ‘standard renovations and maintenance’.
Based on the evidence of Mr Chow, Ms Collins, Ms Hildebrand, Ms Denner and the Applicant’s mother, I accept that the entire proposed home modification is specific to the Applicant’s needs and the Applicant’s care, and so may be characterised as a support as described as ‘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’. I find that the proposed home modification is a NDIS support.
Other Support Rules
The Respondent refers to rule 5.1(b) and 7.19(1)(b) in contending that the proposed home modification should not be funded under the NDIS as the evidence does not establish that it is ‘necessary to address the Applicant’s disability-specific needs’.[117]
[117] Respondent’s Statement of Facts, Issues and Contentions at [31] and [36].
Rule 5.1(b) of the Support Rules states:
A support will not be provided or funded under the NDIS if:
…
(b) it is not related to the participant’s disability…
Based on the evidence described above, I find that the proposed home modification is related to the Applicant’s disability, so I do not consider that rule 5.1(b) is applicable in relation to the proposed home modification.
Rule 3.5 of the Support Rules provides that Schedule 1 sets out matters for the CEO to have regard to in considering whether supports are most appropriately funded or provided through the NDIS. Paragraphs 7.1 and 7.2 of Schedule 1 states:
The Act limits the supports that can be provided or funded under the NDIS to supports that are not more appropriately funded or provided through other service systems, for example as part of a universal services obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by the NDIS or another service system.[118]
…
[118] Support Rules, Exhibit 1, H22, p 278.
Paragraph 7.19 of Schedule 1 deals with housing and community infrastructure and relevantly states that the NDIS will be responsible for:
(a) Supports to assist a person with disability to live independently in the community, including by building their capacity to maintain a tenancy, and support for appropriate behaviour management; and
(b) Home modifications for accessibility for a person in private dwellings…
…
The parties have not contended that there is any ‘other service systems’ that could provide or fund the proposed home modification. Given the purpose of Schedule 1 is to provide considerations to be taken into account in deciding whether a support is more appropriately provided or funded by the NDIS or another service system, I do not consider it is applicable in determining whether the proposed home modification is a reasonable and necessary support for the Applicant.
Carer’s sleeping arrangements
The Respondent submits that:
… Attention should also be given to the requirements of the relevant Award under which inactive overnight carers are engaged. Clause 25.7(c) of the Award requires carers to have a separate room and bed in which to sleep. The Respondent is not satisfied that the 2021 concept plan meets those requirements. No second bed, bedroom, or other separate sleeping arrangement is shown in the concept plan.[119]
[119] Respondent’s written submissions, 25 November 2024 at [18].
The Applicant refers to the NDIS Technical Advice and Practice Improvement Branch advice which deals with the issue of the relevant award.[120] That advice deals with the Social, Community, Home Care and Disability Services Industry Award 2010, and states that ‘support workers attending sleepover bookings must, where possible, be provided with a separate room with a bed…’.[121]
[120] Applicant’s written submissions, 13 November 2024.
[121] NDIS Technical Advice and Practice Improvement Branch, Exhibit 1, H47, p 559.
In her report, Ms Hildebrand stated that:
A bed could be placed in the living room for a carer as there is more than adequate space. Nil home modifications will be required to accommodate a sleep over shift.[122]
[122] Hildebrand report, Exhibit 1, H42, p 503.
There is no expert evidence before me that challenges or contradicts Ms Hildebrand’s evidence. I consider that the lack of a second bedroom is not an impediment to the proposed home modification being a reasonable and necessary support.
Conclusion: Is the proposed home modification a reasonable and necessary support for the Applicant?
In National Disability Insurance Agency v WRMF the Court considered the meaning of reasonable and necessary supports in the NDIS Act and said:
… there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies – by reference to the context, objects and guiding principles of the Act and the facts of the case – the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person’s impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate. It is not accidental, in our opinion, that Parliament has chosen the term ‘participant’ to describe individual who will receive funded support: the choice of that term reinforces, as we have sought to explain, that the driving objective of this Act is the holistic, improved and increased participation by persons with disability in the life of their communities, and in life itself. [123]
[123] National Disability Insurance Agency v WRMF (2020) 276 FCR 415 at [151].
The Court also said that whether a requested support is a ‘reasonable and necessary support’ is a fact-intensive exercise which must be undertaken recognising that the circumstances of each participant will vary greatly.[124]
[124] Ibid, at [152].
With reference to the principles expressed in s 4 of the NDIS Act, in Public Trustee of South Australia as Litigation Representative for Isherwood and National Disability Insurance Agency, the Court said:
Consideration as to what may be a reasonable and necessary support for a particular participant in the NDIS must be informed by a perspective that is guided by these (and other) principles as expressed in s 4 of the Act.[125]
[125] Public Trustee of South Australia as Litigation Representative for Isherwood and National Disability insurance Agency (No 2) [2023] FCA 852 at [20].
I consider that the following principles are particularly relevant in considering whether the proposed home modification is a reasonable and necessary support for the Applicant.
(2) People with disability and their families or carers should have certainty that people with disability will receive care and support they need over their lifetime.
…
(6) People with disability have the same right as other members of Australian society to be able to determine their own best interests including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives.
…
(7) People with disability should have their privacy and dignity respected.
(11) Reasonable and necessary supports for people with disability should:
(a) support people with disability to pursue their goals and maximise their independence; and
(b) support people with disability to live independently and to be included in the community as fully participating citizens; and
(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in community and in employment.
(12) The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.
(12A) The relationship between people with disability and their families and carers is to be recognised and respected.[126]
[126] Section 4 was amended by item 4 of Schedule 2 of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 to insert ‘(12A) The relationship between people with disability and their families and carers is to be recognised and respected’.
I am satisfied that the proposed home modification is a reasonable and necessary support for the Applicant, and that it meets the criteria under s 34(1)(aa)-(f).
As I find that the proposed home modification to be a reasonable and necessary support for the Applicant, then, subject to the other requirements in s 33(5) and s 34, the scheme requires and contemplates that that support ‘will’ be funded.[127]
There are no references in these provisions to ‘contributions’ from the participant, the participant’s family or carers.[128]
[127] McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [94].
[128]McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [95].
24/7 1:1 SUPPORTS WITH INACTIVE OVERNIGHT SUPPORT

The Applicant receives funding for daily 1:1 support for 12 hours from Monday to Friday; and for 10 hours on Saturdays and Sundays.[129]
[129] Applicant’s Statement of Facts, Issues and Contentions, Exhibit H1, p 7, Respondent’s Statement of Facts, Issues and Contentions, Exhibit H2, p 12.
In post-hearing submissions, the Respondent submits that ‘…the correct and preferable decision having regard to the evidence tested at the hearing is to increase the Applicant’s funding in his plan for support workers by two hours per day (this funding can be used flexibly)’.[130]
Section 34(1)(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 or the early intervention requirements
[130] Respondent’s written submissions, 25 November 2024 at [3].
The Respondent submits that:
The Applicant has moderate care needs at night. [The Applicant’s mother]…said that she needs to provide a few minutes of assistance several times per night. This consists of checking his bedding and male urinal (handheld), adjusting his radio, providing water and repositioning his bed.
The Applicant’s mother is in good health. She plans to say in the house as long as she can. She said that this could be as long as 10-15 years…[131]
[131] Respondent’s written submissions, 25 November 2024 at [4].
Expert evidence
Mr Chow’s recommendation was that the Applicant ‘requires support 24 hours per day to facilitate his self-care, self-management, social, leisure and community-based activities’ and ‘requires non-active overnight support due to his seizure activity, cognitive and speech impairment and high falls risks’.[132]
[132] First Chow report, Exhibit 1, H10, p 150.
Mr Chow provided the following outcomes of assessments conducted in 2022.
(a)Care and Needs Scale (CANS) level 7, which indicates that the Applicant ‘cannot be left alone – needs support 24 hours per day’.[133]
(b)Modified Barthel Index (Self-Care Assessment) score 17, which indicates that the Applicant has ‘total dependence…when completing his daily self-care tasks and mobility, due to his physical and cognitive limitations’.[134]
(c)Lawton Instrumental Activities of Daily Living score 0, indicating an ‘extremely low level of function in instrumental activities of daily living, which appropriately reflects the very high level of person-to-person support [the Applicant] currently requires in order to have his instrumental activities met’.[135]
(d)World Health Organisation Disability Assessment Scale (WHODAS) score of 91, indicating severity to be ‘extreme’.[136]
[133] First Chow report, Exhibit 1, H10, p 145.
[134] First Chow report, Exhibit 1, H10, p 146.
[135] First Chow report, Exhibit 1, H10, p 147.
[136] First Chow report, Exhibit 1, H10, p 148.
Ms Hildebrand provided the following outcomes of assessments conducted in February 2024.
(a)CANS, ‘Level 7 support needs and requires 24 hours support and monitoring’.[137]
(b)Barthel Index of Activities of Daily Living, ‘45/100 indicating severe dependency for activities of daily living’.[138]
[137] Hildebrand report, Exhibit 1, H42, p 499.
[138] Hildebrand report, Exhibit 1, H42, p 500.
Ms Hildebrand stated that ‘considering the results of the CANS, [the Applicant] was assessed to meet level 7 support needs and requires 24 hours support and monitoring. He cannot be left alone and needs nursing care, assistance and/or monitoring 24 hours per day’.[139]
[139] Hildebrand report, Exhibit 1, H42, p 519.
Ms Denner did not consider that the Applicant would ‘ever be able to not have somebody with him for a 24-hour period due to his disability’.[140]
[140] Melissa Denner, oral evidence, 4 November 2024.
Ms Hildebrand noted:
Due to his blindness, cognitive impairment and poor mobility, [the Applicant] will always require high levels of 1:1 support for the remainder of his life.[141]
[141] Hildebrand report, Exhibit 1, H42, p 506.
Conclusion in relation to s 34(1)(aa)
I find it uncontroversial that the Applicant meets the disability requirements through impairments arising from an acquired brain injury and epilepsy. Those impairments are both physical and cognitive.[142]
[142] Described in the Respondent’s Statement of Facts, Issues and Contentions and in the Applicant’s Statement of Facts, Issues and Contentions. Confirmation that Applicant met access requirements for impairments arising from acquired brain injury and epilepsy, Technical Advice and Practice improvement Branch advice, Exhibit 1, H48, p 564.
Based on the evidence described above, I am satisfied that 24/7 1:1 supports with inactive overnight support is necessary to address the needs of the Applicant arising from impairments in relation to which he meets the disability requirement.
Section 34(1)(a): The support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations.
In the Applicant’s NDIS plan for 10 September 2022 – 10 September 2023, the Applicant’s goals are described as follows.
To increase my independence and to do things like walking across the kitchen at home with my cane unassisted.
To improve my speech and communication so I can do things like order items and communicate for myself when out in the community.
To maintain and build social networks and continue participating in activities such as recording another song for use on the music group Christmas CD.
To build my life and employment skills in order to become more independent e.g. volunteering.
Transition to living in my own granny flat (once the bathroom modification are complete).
To build my independence and sustain my informal supports.[143]
[143] NDIS Plan (10 September 2022 – 10 September 2023), Exhibit 1, H20, p 250-263.
Mr Chow’s evidence was that ‘[the Applicant]’s preference and choice has always been to continue residing at home. In order to do so, [the Applicant] requires the recommended support model to facilitate his basic self-care, self-management, social and community-based needs’.[144]
[144] Second Chow report, Exhibit 1, H29, p 394.
Mr Chow made the following relevant observations.
Increasing [the Applicant]’s formal supports will be beneficial in supporting [the Applicant] to continue engaging with his already established connections and culture as well as meet his self-care and self-management needs. Increased formal supports with facilitate [the Applicant] to engage in meaningful and age-appropriate activities which will assist [the Applicant] to achieve his goals and live a meaningful and purposeful life.[145]
[145] First Chow report, Exhibit 1, H10, p 149.
Based on the evidence described above, I am satisfied that 24/7 1:1 supports with inactive overnight supports will assist the Applicant to pursue the goals, objectives and aspirations included in his statement of goals and aspirations.
Section 34(1)(b): The support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation.
Mr Chow recommended that the Applicant:
…increase his engagement with formal supports. [The Applicant] requires support 24 hours per day to facilitate his self-care, self-management, social, leisure, and community-based activities.[146]
[146] First Chow report, Exhibit 1, H10, p 150.
Based on Mr Chow’s evidence, I am satisfied that the proposed home modification will assist the Applicant to undertake activities, so as to facilitate his social and economic participation.
Section 34(1)(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.
Rule 3.1 of the Support Rules provides that in deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters.
Rule 3.1(a): Whether there are comparable supports which would achieve the same outcome at a substantially lower cost
Ms Hildebrand cautioned that ‘living in shared accommodation increases the risk of [the Applicant] not receiving the 1:1 support as required’ and she states:
[the Applicant] has a poor tolerance for noise which is likely to trigger behaviours of concern and non-compliance especially in a shared environment where the behaviour of other resident cannot be controlled.[147]
[147] Hildebrand report, Exhibit 1, H42, p 521.
I do not consider that living in shared accommodation can be considered a comparable support which would achieve the same outcome for the Applicant, as he would not be with his family.
Rule 3.1(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
Mr Chow considered that
..the Applicant is at a life stage where it would be appropriate for him to have greater independence and privacy from his parents’ and ‘increased formal supports would be effective and beneficial in increasing [the Applicant]’s independence and effectively sharing and/or shifting the caring responsibility from his parents to formal supports.[148]
Rule 3.1(c): Whether funding or provision of the support is likely to reduce the cost of the funding or supports for the participant in the long-term…
[148] First Chow report, Exhibit 1, H10, p 149.
Mr Chow considered that ‘the recommended level of SIL support would mitigate [the Applicant]’s need to explore alternative and more costly accommodation options such as Specialist Disability Accommodation’.[149]
[149] Second Chow report, Exhibit 1, H29, p 394.
As discussed above, Ms Hildebrand’s evidence that remaining at home may improve the efficiency of care delivered to the Applicant, and Ms Collins’ evidence that it will facilitate the Applicant’s family to provide informal support on an ongoing basis which may reduce care costs.
I find that funding 24/7 1:1 supports with inactive overnight support will not reduce the cost of funding formal supports for the Applicant in the long-term. However, it is likely to reduce the cost of funding SDA for the Applicant in the future.
Rule 3.1(d)(i): The comparative cost of purchasing or leasing the equipment or modifications; and (ii) whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications.
I do not find rule 3.1(d) to be relevant in consideration of funding 24/7 1:1 support with inactive overnight support for the Applicant.
Rule 3.1(e): Whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides
I do not find rule 3.1(e) to be relevant to consideration of funding 24/7 1:1 support with inactive overnight support for the Applicant.
Rule 3.1(f): Whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of support (for example, some home modifications may reduce a participant’s need for home care)
Mr Chow stated:
Increased formal supports would be effective and beneficial in increasing [the Applicant]’s independence and effectively sharing and/or shifting the caring responsibility from his parents to formal supports.[150]
[150] First Chow report, Exhibit 1, H10, p 149.
Conclusion in relation s 34(1)(c)
I am satisfied, based on the evidence described above and having applied the Support Rules, that 24/7 1:1 support with inactive overnight 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.
Section 34(1)(d): The support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice
Rule 3.2 of the Support Rules states:
In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(d) Published and referred literature and any consensus of expert opinion;
(e) The lived experience of the participant or their carers;
(f) Anything the Agency has learnt through delivery of the NDIS.
Rule 3.3 provides that in deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary, seek, expert opinion.
Mr Chow made the following relevant observations.
Supported Independent Living (SIL) would be both effective and beneficial in meeting [the Applicant]’s functional requirements.[151]
Additionally, [the Applicant] is at a life stage where it would be appropriate for him to have greater independence and privacy from his parents.
[151] Second Chow report, Exhibit 1, H29, p 394.
Based on the evidence described above, I am satisfied that the provision of 24/7 1:1 supports with inactive overnight support is likely to be effective and beneficial for the Applicant, having regard to current good practice.
Section 34(1)(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
The Respondent submits that ‘it is reasonable to expect the Applicant’s mother to continue to provide overnight informal support whilst she is in good health for her age and whilst she continues to receive Centrelink benefits in respect of the care she provides’.[152]
[152] Respondent’s written submission, 25 November 2024 at [5].
The Respondent submits:
…The carer payment is paid to a carer who personally provides ‘constant’ support to a disabled person where the provision of constant care by the person severely restricts their capacity to undertake paid employment: see Part 2.5 of the Social Security Act 1991. The Guide to the Social Security Law contemplates that the carer payment is paid to a person on the basis that the nature and intensity of the care they provide ‘roughly equates to a normal working day’.
[The Applicant’s father] has health concerns (including Parkinson’s disease). There is limited medical information about the impact of his conditions on his own functional capacity. Evidence was given about his current difficulties with choking. [The Applicant’s father] did not give oral evidence at the hearing and the Tribunal was not placed in a position to confidently assess the extent to which he could provide any informal care to the Applicant in the future. [The Applicant’s mother] indicated that [the Applicant’s father]’s prognosis was still uncertain. She said that he had seen a specialist twice and was doing blood tests. He is presently being assisted with speech pathology and physiotherapy. Whatever the precise nature of his own challenges it seems that [the Applicant’s father]’s prognosis and ongoing care needs have not stabilised and so have not yet been reliably determined….The Respondent considers that the Tribunal should not presently assume that [the Applicant’s father] is – or even will become – a care burden upon [the Applicant’s mother] to any significant extent;
The Applicant’s greatest challenges appear to be the early morning shifts when he awakes. His support worker, Ms Melissa Denner, said that his bedsheets were usually soiled and needed to be washed and changed each day. The evidence was that this task usually falls to be performed by the Applicant’s mother every morning; and
Todd Dudgeon (the Applicant’s brother) confirmed in oral evidence that he and his family would, if they moved into the premises, continue to provide the current level of care presently provided to the Applicant by his parents.[153]
[153] Respondent’s written submissions, 25 November 2024 at [4].
The Respondent tendered an extract of the Social Security Act 1991 (Cth) concerning carer payment, the Social Security Guide and Home Care Packages Program Manual for Care Recipients.[154] I accept that the Applicant’s mother currently receives a carer payment, and that the Applicant’s father is in receipt of a Home Care Package Level 3.
[154] R1 and R2 and R3.
Rule 3.4(b) provides that in deciding whether funding the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters (for participants that are not children).
Rule 3.4(b)(i): The extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community
Mr Chow stated:
Without the high level of person-to person support [the Applicant] receives, he would be at increased risk of functional deterioration which would likely result in increased funding for formal supports in the future and/or his inability to safely remain at home.[155]
[155] First Chow report, Exhibit 1, H10, p 149.
Based on Mr Chow’s evidence, and the evidence regarding the Applicant’s parents’ circumstances discussed at paragraphs ‎38 to ‎46 above, I consider that there may be risks to the wellbeing of the Applicant arising from reliance on his parents for overnight support.
Rule 3.4(b)(ii): The suitability of family members and carers to provide requires including such factors as: (A) the age and capacity of the participant’s family members and carers, including the extent to which supports are available to sustain them in their caring role; and (B) the intensity and type of support required, whether it is age and gender appropriate for a family member or carer to be providing that care; and (C) the extent of any risks to the long term wellbeing of any of the family members or carers…
The Applicant’s mother gave evidence that she assists the Applicant to get out of bed each morning, takes him to the bathroom, sits him on the toilet and then gets his breakfast ready. The Applicant’s care worker arrives at 7am and bathes him before breakfast. The Applicant’s mother said that she exercises with the Applicant and assists with physiotherapy and other activities throughout the day, as well as assisting with lunch and tea preparation. The Applicant’s care worker leaves the house at 7pm and the Applicant’s mother gives the Applicant his medication at 7.15pm and a drink at 7.45pm, takes him to the bathroom and assists him to brush his teeth and go to the toilet, and then gets him into bed. The Applicant’s mother said that she checks on the Applicant during the night which takes ‘five or ten minutes, every couple of hours’. As the Applicant takes his blankets off, she makes sure that he is covered with blankets particularly in winter. The Applicant’s mother said she makes sure the Applicant’s urine bottle is empty, but that the Applicant’s bedding must be changed every morning.[156]
[156] Marie Dudgeon, oral evidence, 4 November 2024.
Ms Denner described arriving at the property at 7am, by which time the Applicant is usually out of bed and on the toilet. Ms Denner said that if the sheets are soiled, the Applicant’s parents will usually attend to washing the sheets. Ms Denner said that the bedsheets are always wet in the morning. Ms Denner assists the Applicant to shower which usually takes about an hour and a half. Ms Denner said that because of the Applicant’s blindness she describes everything she does. Ms Denner described doing exercises with the Applicant and attending music therapy. Ms Denner said that toileting is a big part of each day, and can take up to half an hour six times per day. Ms Denner noted the difficulty for the Applicant’s mother in transferring the Applicant as he is over 100kg. Ms Denner described the Applicant’s difficulty with breathing, choking and eating.[157]
[157] Melissa Denner, oral evidence, 4 November 2024.

Ms Denner said that when the Applicant’s parents are away and she stays overnight with the Applicant he ‘wakes up three or four times a night calling out, at the moment Marie does that…it’s very full on’.[158]
[158] Melissa Denner, oral evidence, 4 November 2024.
In response to a question about the Applicant’s current reliance on informal support, Ms Hildebrand stated:
…While he is living with his parents it is reasonable that they continue to provide this support for the foreseeable future. However, their ability to provide support is declining and it is not sustainable due to their age and deteriorating health. Especial [sic] Marie is at risk of carer burnout as she under tremendous strain to care for her son and ailing husband, Trevor who has Lewy Body Dementia and Parkinson’s Disease which are both degenerative diseases.[159]
[159] Hildebrand report, Exhibit 1, H42, p 520.
Mr Chow made the following observations.
The carer stress and burden secondary to the immense task of caring for [the Applicant] at home has likely taken a significant physical and mental toll on [the Applicant]’s family. [The Applicant’s father] was diagnosed with prostate cancer…[The Applicant’s mother] reports being in ‘ok’ health, however, carer burden is evidence, from an OT perspective.[160]
…
The recommended support model considers the level of support provided by [the Applicant]’s parents over the last 26 years…The level of support that [the Applicant]’s parents have and still provide is not sustainable due to their age and own health concerns…[161]
[The Applicant]’s parents are at a life stage where it is not recommended for them to continue providing the level of care that they are currently providing, due to the impact it is having on their health and wellbeing. Additionally, [the Applicant] is at a life stage where it would be appropriate for him to have greater independence and privacy from his parents.
[160] First Chow report, Exhibit 1, H10, p 134.
[161] Second Chow report, Exhibit 1, H29, p 394.
Mr Chow provided the outcome of a Zarit Burden Interview completed with the Applicant’s mother in 2022. The Applicant’s mother scored 42, ‘indicating a moderate to severe burden’.[162]
Rule 3.4(b)(iii): The extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes
[162] First Chow report, Exhibit 1, H10, p 149.
Ms Hildebrand relevantly reported:
[The Applicant] is fully reliant on his family and carers for decision making.
…
[The Applicant] requires full support for all decisions related to his self-management including but not limited to organising his care, health, finances and daily/weekly schedule.
…
[The Applicant] requires high levels of assistance with transport to, access, and advocacy at appointments to ensure that all the relevant information is provided and follow-up on.
…
[The Applicant] does not have the cognitive or physical capacity to manage his own affairs. He relies fully on his parents and carers to manage his affairs on his behalf.[163]
Rule 3.4(c) …the desirability of supporting and developing the potential contributions of informal supports and networks within their communities
[163] Hildebrand report, Exhibit 1, H 42, p 518.
The Applicant’s brother and sister-in-law provided a Statement of Care declaring that they agree to ‘continue with the care’ of the Applicant in the event the Applicant’s parents are no longer able to do so. The care anticipated includes, amongst other things, rostering and organising care workers, paying accounts, grocery shopping, clothing shopping, family dinners, personal care shopping, managing finances, and booking and attending medical appointments.[164]
[164] Statement of Care, Todd Dudgeon and Sarah Dudgeon, Exhibit 1, H39, p 480.
In response to a question about what level of informal support could reasonably be expected of other family members who might live with the Applicant in the future, Ms Hildebrand said:
Social interaction, eating/sharing meals, managing finances and budget, decision making about care, monitoring health and carer support, liaising with treatment providers as needed, managing health and social activities.[165]
[165] Hildebrand report, Exhibit 1, H42, p 520.
Conclusion in relation to s 34(1)(e)
I must examine the ‘realistic and reasonable capacity of others to provide the support – feasibility, continuity, suitability – and must decide, in a rational and reasonable way, based on probative material, whether or not there is, in fact, capacity for others to provide the support’ to the Applicant that is needed. [166]
[166] McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [97].
Based on the evidence described above, I am not satisfied that there is a ‘realistic and reasonable’ capacity, noting feasibility, continuity, and suitability, for the Applicant’s parents to provide overnight support to the Applicant.
I am satisfied that the funding of 24/7 1:1 supports with inactive overnight supports takes into account what is reasonable to expect families, carers, informal networks and the community to provide.
Section 34(1)(f) The support is a NDIS support: s 34(1)(f)
Item 14, Clause 1, Schedule 1 of the Transitional Rules include ‘Daily Personal Activities’ as a support that is a NDIS support unless otherwise provided. I am satisfied that 24/7 1:1 supports with inactive overnight support is a NDIS support.
Conclusion: Is 24/7 1:1 support with inactive overnight support a reasonable and necessary support for the Applicant?
I am satisfied 24/7 1:1 support with inactive overnight support is a reasonable and necessary support for the Applicant, and that it meets the criteria under s 34(1)(aa)-(f) of the NDIS Act.
DECISION
The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with a direction that the Applicant’s SOPS include funding for:
a)home modifications as proposed by the Specifications for Downstairs Living, Bernadette Collins (H15)
b)24/7 1:1 care with inactive overnight support.
I certify that the preceding one hundred and ninety nine (199) paragraphs are a true copy of the reasons for the decision herein of Senior Member C Shepherd.
………[SGND]………………………………
Associate
Dated: 20 December 2024
Date(s) of hearing:  4, 5 November 2024
Date final submissions received:      25 November 2024
Applicant’s Representative:               Mr Michael Hampton
Respondent’s Representative:          Mr Ashwin Sivaratnam
Respondent’s Counsel:   Mr John Bird