Duse and National Disability Insurance Agency (NDIS)
[2025] ARTA 37
•16 January 2025
Duse and National Disability Insurance Agency (NDIS) [2025] ARTA 37 (16 January 2025)
Applicant/s: Claudio Duse
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/6351
Tribunal:Administrative Review Tribunal
Place:Hobart
Date:16 January 2025
Decision:The Tribunal affirms the decision under review pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth).
..............................[sgd]..........................................
General Member A. Williams
NATIONAL DISABILITY INSURANCE SCHEME – review of statement of participant supports – request for funding of art materials – reasonable and necessary supports – applicant sought review of statement of supports to allow for funding for art supplies – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) (NDIS Supports) Act 2024
National Disability Insurance Scheme (Supports for Participants) Rules 2013
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
G v Minister for Home Affairs [2019] FCAFC 79 [18]
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Madelaine and National Disability Insurance Agency [2019] AATA 4025
National Disability Insurance Agency v WRMF (2020) FCR 415Secondary Materials
National Disability Insurance Scheme Operational GuidelineStatement of Reasons
This application is about whether the Applicant, Mr Claudio Duse can have his request for funding of the cost of art supplies to the value of $20,000 by the National Disability Insurance Agency (the Agency) approved as part of his funded supports. Mr Duse seeks review of a decision made on 24 August 2023 by a “reviewer” under sub-s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) (‘Decision Under Review’).[1] This decision confirmed an earlier decision by the Agency on 25 May not to approve such funding as part of his funded supports.
[1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘TD’).
The Administrative Review Tribunal’s (‘Tribunal’) jurisdiction arises under s 12 of the Administrative Review Tribunal Act 2004 (Cth) (‘ART Act’), operating in conjunction with
s 103 of the NDIS Act.
For the reasons set out below, the Decision under Review is affirmed as the Tribunal is not satisfied that Mr Duse has established the requested support meets the reasonable and necessary criteria under s 34(1) of the NDIS Act.
Background
Mr Claudio Duse is a 67-year-old man who lives in suburban Melbourne. He lives on his own in a social housing property. He has little contact with his immediate family (a brother and sister). He has a son and daughter who live in Melbourne who have their own children, but rarely sees them, due to the distance involved and not being able to afford the fuel to drive there. He does have a close friend who he catches up with regularly each week.
Prior to moving into his current home, Mr Duse had an extended period of four and a half years of either being homeless or in short-term living arrangements, which experience may have exacerbated his mental health.
Mr Duse has the following diagnosed physical and psychosocial medical conditions:
·Anxiety and Depression.
·Post-Traumatic Stress Disorder (PTSD).
·Abdominal hernia.
·Sciatica (left side).
·Angina and high blood pressure
·High cholesterol
In addition, Mr Duse reports that he has been also diagnosed with and received treatment for:
·Borderline Personality Disorder
·Attention Deficit Hyperactivity Disorder
·Depression and Anxiety
Mr Duse experiences a range of symptoms, including:
·Insomnia and erratic sleep cycles and resulting fatigue.
·Difficulty in getting moving in the morning.
·Persistent cough and shortness of breath
·Lack of motivation
·Poor concentration
·Social isolation
·Constant rumination.
Mr Duse was approved as a participant in the Scheme in November 2017. Since then, he has had several support plans approved, including the current plan, the subject of this review. The current plan is a two-year plan with funding between 24 May 2023 and 23 May 2025.
His current NDIS supports are as follows:
Core Supports
·Funding to help you to maintain your home environment, specifically house cleaning, and meal preparation. Individual to attend and participate assistance to support you in community, social and recreational activities of your choice at the Standard Level: $99,332.48 (NDIA managed).
Transport
·Support to access work or travel to participate in social and community activities: $5,352.00.
Capacity Building Supports
·Improved Life Choices: $2,739.15 (NDIA managed).
·Improved Daily Activity for Occupational Therapist and Psychologist $21,201.64 (Plan managed).
·Support Coordination $11015.40 (NDIA managed).
He attends art therapy with Sara Grace at the Arts Therapy Studio every second week and has done so since 2020.
He sees his Psychotherapist Anne Sherry at the Melbourne Counselling Session on a regular basis.
He does not currently engage with support workers. He also was previously seeing an Exercise Physiologist; however, it appears the funding for this particular therapy was discontinued in his most recent plan.
He has a regular GP, Dr Daniel Martinez of Dromona Family Doctors, however it is not clear how frequently Mr Duse sees him.
Decision under review and application for review to this tribunal
The Respondent provided an approved statement of supports for Mr Duse on 24 May 2023 after assessing Mr Duse’s request for funding for art supplies. It advised that Mr Duse’s request for the funding of art supplies did not meet the reasonable and necessary criteria under s 34 of the Act and Rule 5 of the NDIS (Supports for Participants) Rule (the Rules) (the initial decision).
On 12 July 2023, Mr Duse requested that the Respondent conduct an internal review of the initial decision.
The Respondent conducted its internal review and on 24 August 2023 advised that it had confirmed the initial decision’s finding that Mr Duse’s request for funding of $20,000 per annum for art supplies could not be approved, (the reviewable decision).
The reasons given in the reviewable decision for refusing the request for art supplies were as follows:
·The Agency considered the requested support relates to a day-to-day living cost under Rule 5.1(d) of the Rules; and
·The requested support did not represent value of money as required under s 34(1)(c) of the Act. The decision maker noted that Mr Duse had not provided evidence which identified a comparable support which could achieve the same outcome at a substantially lower cost. Additionally, Mr Duse had not provided quotations which identified the nature of the art supplies and the breakdown of the individual items.
On 29 August 2023 Mr Duse applied to the then Administrative Appeals Tribunal (AAT) for the AAT to conduct an independent review of the reviewable decision.
In his application for review, Mr Duse noted the following as reasons why he considered the reviewable decision was wrong:
I am requesting my core funding be used for art supplies which I have been using for many years as my own art therapy. This has been verified by my counsellor and psychotherapist, Anne Serry who provided a supporting letter with my plan review. I am an artist and find that continuing to practice art is the best way to maintain my mental health and motivation to engage in other activities. My art supplies were previously being funded by my NDIS plan.
Art therapy has been proven to:
Emotional Release:
Art therapy allows individuals to express complex emotions and thoughts that may be difficult to articulate verbally, providing a healthy outlet for emotional release.Stress Reduction:
Engaging in art-making activities has been shown to reduce stress levels and promote relaxation leading to improved mental health.
This is a pivotal part of my mental health recovery and ask that this decision be looked at carefully, so that I am able to maintain my life.Before moving on to outline the evidence and relevant legislation, I note that Ms Duse’s previous plans did not specifically included funding for art supplies. Rather Mr Duse had been using his core funding for such purposes apparently based on advice from his Support Coordinator and that his Plan Manager had been approving such invoices apparently unaware that it was not approved funding.[2]
[2] Please see Ms Grace’s Response to Targeted questions (JTB 143).
Evidence and Submissions
As part of the review process, the Tribunal was provided by the Respondent with those documents previously submitted as part of the original application process (the T Documents). Of potential relevance to this decision are the following reports:
·Letter from Anne Sherry (Psychotherapist) dated 8 May 2023[3]
·Letter from Anne Sherry (Psychotherapist) dated 8 August 2023.[4]
·Report from Sean Koshiji (Physiologist EPA Health) dated 27 April 2023.[5]
·Art Access Victoria Mentoring Program Quote dated 4 May 2023.[6]
·Letter from Sara Grace, Art Therapist dated 26 July 2023.[7]
·Undated report from Charlotte Roche (Support Coordinator).[8]
·Plan Review Report from Ms Roche.[9]
·Current NDIS Plan 24 May 2023 – 23 May 2025.[10]
[3] JTB 53-54.
[4] JTB 39-40.
[5] JTB 50-51.
[6] JTB 52.
[7] JTB 56-57.
[8] JTB 76-77.
[9] JTB 58-75.
[10] JTB 102-114.
During the conduct of the Tribunal’s pre-hearing procedure, both parties filed with the Tribunal Statements of Issues and Statements of Facts, Issues and Contentions.
The most recent of these documents will be referred to throughout this decision.
Mr Duse also provided a quote for art supplies and a letter of support from those assisting him. These included the following:
·a quote from Melbourne Artists’ Supplies in the amount of $781.20.[11]
·a letter of support from Dr Daniel Martinez (GP) dated 18 October 2024.[12]
[11] I note that Ms Grace in her Response to targeted questions (JTB 146) noted that she had requested the quote be generated and that the quote represented on average one months’ worth of such supplies.
[12] JTB 179.
The Respondent forwarded a series of targeted questions to Mr Duse’s Art Therapist, Sara Grace, and his Psychotherapist, Anne Sherry with both providing their responses on 28 March 2023.
Ms Grace’s responses to targeted questions
She recommends the funding of art supplies as a means of managing Mr Duse’s psychosocial impairment. It would support him to fulfill his wish to pursue an artistic career as well as develop his sense of self, support for his mental health and greater capacity to participate in daily life.
She recommends this funding in addition to his current funding for art therapy classes. Creating art is central to his sense of self. In addition to assisting in his desire to be an artist, it has benefits for his mental health and capacity to express his emotions and self-regulate.
In terms of the expected outcomes of such funding Ms Grace noted the following:
Provision of art supplies:
·Claude would have access to materials at home and using these could meaningfully engage in an activity that can communicate something of himself in the world.
·It provides an outlet for expressing his emotions and self-regulating.
·It further gives him the opportunity to have greater self-confidence, have greater motivation and actively participate in the community.
Art therapy
·Enables him to develop strategies and skills for the making of meaning self-reflection and the skill to work towards a goal of what he wishes to create.
·Helps him in developing his capacities for life participation and developing his identity as an artist.
·Assists him to navigate the art world in a way he can manage.
·Supports his emotional social ability to navigate in the art world.
·Can inform his arts practice over time.
Addressing any alternative supports that could also assist in the management of his psychosocial impairments, Ms Grace considered that would offer him a safe space to paint, develop his creative identity and provide social connection. She had recommended he engage in an Arts Access Mentorship program, however this has not yet eventuated. She also introduced him to a local community organisation where his work could be showcased and has had one of his works purchased. This would provide him with greater opportunities to engage with his local community.
She was asked whether she considered the cost of art supplies arose solely and directly out of his disability support needs. In response she stated that she believed being given the opportunity to create his own art and his wellbeing are closely linked. He has difficulties with his emotions and verbally communicating and making art allows him to express himself and he feels more grounded, calmer, and more confident when he can paint.
In terms of the anticipated cost of art supplies, Ms Grace referred to the quote she obtained from Melbourne Art Supplies ($710.18) which she considered would represent approximately one month’s expenditure. She noted that over time Claude could supplement his cost by using the proceeds of sale of his artwork and buying some supplies locally which may be cheaper.
She considered his current engagement of 1.5 hours in art therapy was sufficient.
Ms Grace was asked whether Mr Duse could benefit from having support workers engage with him and whether that could reduce his need for other supports. She said that having a support worker who could provide assistance in developing a business based upon his art. He would also benefit from having help with house cleaning as he experiences shortness of breath due to his heart condition.
Asked what additional supports Mr Duse may require in the absence of funding for art supplies, Ms Grace indicated he may need additional supports to get motivated and was at risk of becoming depressed, losing confidence and being less engaged in his community. While those supports may be of some assistance, they would not be as effective as the benefits he gets from painting.
Ms Sherry’s responses to targeted questions
Ms Sherry was also asked if she recommended the provision of art supplies for Mr Duse. She said that she did so as making art was his way of processing emotional and cognitive information. Mr Duse’s deficits in thought processing, affects his ability to express emotions, limits his coping mechanisms creates obstacles to his seeking help from others and processing difficult experiences.
In this regard, making art helps Mr Duse process information and manage his tendency to ruminate. Daily engagement with art in his home would result in reduced stress, improved mood, and a greater desire to interact socially.
She stressed that Mr Duse’s connection to art is neither a hobby nor an inconsequential activity and is a powerful tool in promoting his overall wellbeing and mental health.
She was asked to advise as to the expected outcomes of such funding and whether those outcomes are similar to those gained through art therapy. In response she indicated that it would lead to a reduction of the severity of his mental health conditions. It would enable him to develop a constant routine and a structure for processing his experiences. In addition, it would:
·Enable him to make sense of his experiences.
·Enhance his self-esteem.
·Foster a sense of empowerment and agency.
·Reduce rumination and intrusive thoughts and a calmer nervous system.
These anticipated benefits are distinct from those typically achieved through art therapy. Art therapy is by its nature intermittent.
Responding to whether there may be alternative supports which could assist him in managing his psychosocial impairment, Ms Sherry noted as follows:
While such supports do exist, they are unlikely to adequately address his unique needs. Often these supports are generalised in nature and follow a one size fits all approach and do not take proper account of an individual’s needs.
She considers that the cost of art supplies is incurred solely and directly as a result of his disability support needs. His engagement with art serves a purpose more than recreational enjoyment or a leisure activity.
By way of example, she noted that when Claude was homeless, his suffering worsened as a result of not having access to art supplies. As a result, he internalised all his experiences which worsened his psychosocial impairments. He developed over this time a number of maladaptive coping strategies and she expressed concern that without this funding he would again suffer a similar deterioration.
In terms of her current psychotherapy support, she considers it adequate as it assists him with his psychosocial impairments but is not sufficient to adequately address them. The current absence of art-based processing is a notable gap that cannot be compensated by talk-based therapy.
In terms of a need for assistance by support workers, Ms Sherry believes he does not require this, rather he needs to have his individual needs given proper consideration.
Agency’s evidence
The Agency provided a report prepared by Dr Scott Hall (Psychiatrist) dated 13 May 2024. Dr Hall was appointed by the Agency as an Independent Medical Expert (IME) and provided with a series of questions including his professional opinion on the requested support.[13] A summary of Dr Hall’s report will be outlined under the heading of the Agency’s evidence in paragraphs to of this decision.
[13] JTB 198-200.
Mr Duse’s Position
The standard practice in the Tribunal is for both an Applicant and Respondent to provide the Tribunal and each other with a Statement of Facts, Issues and Contentions (SFIC).
The purpose of a SFIC is to provide an outline of that party’s case what they consider to be the relevant facts, what may be the relevant parts of the Act and related Rules the Tribunal should consider and identify where the parties disagree on these points.
Mr Duse did not provide a formal document that met these elements; however, he did send an email on 8 July 2024 where he outlined what he considered to be the important factors the Tribunal should consider in assessing his request for funding of art supplies.
In his email, he expressed his frustration with the time taken to consider his case, and the need to keep providing information and evidence to support his case when he believed he had already provided more than enough information.
He also stated that the process had caused him pain and suffering in having to wait for funding which he had previously been approved for. When he had been receiving this funding, he said that:
…everything was going so well and smooth while painting away express myself through art, which is healing and very therapeutical for me, not hurting anyone at all, not taking away people’s profit's or someone's wages or salary, just doing my own thing in the comfort of my own little home a safe and supporting place. Where I am free to express on a canvas or board or paper.[14]
[14] JTB 154.
He stated that he considered the following principles set out in the Act were relevant to his case:
·people with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional, and intellectual development.
·people with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.
·people with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
·people with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
·reasonable and necessary supports for people with disability should:
(i) support people with disability to pursue their goals and maximise their independence.
·(ii) support people with disability to live independently and to be included in the community as fully participating citizens; and
·(iii) develop and support the capacity of people with disability to undertake activities that enable them to participate in the mainstream community and in employment.
·(iv) the role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.
·(iv) people with disability should be supported to receive supports outside the NDIS and be assisted to coordinate these supports with the supports provided under the NDIS.
The Agency’s Position
The Respondent’s position is outlined in two documents. The first SFIC is dated 16 August 2024, with an updated statement being dated 14 November 2024.
By way of background on 3 October 2024, the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024, came into effect. (the Transitional Rules) These transitional rules made significant changes to s 34 of the Act and provided guidance as to what supports could be approved by the Agency and those that were deemed generally not to be NDIS supports.
The second SFIC was prepared in accordance with a Direction I made on 17 October 2024 as follows:
·On or before 8 November 2024, the Respondent must lodge with the Tribunal, and give to the Applicant, an updated submission about the support funding issue arising in this proceeding, in light of the recent changes to the relevant laws under the NDIS Act.
·On or before 29 November 2024, the Applicant may lodge with the Tribunal, and give to the Respondent, their response to the updated submissions lodged by the Respondent.
The Respondent did provide a written submission on 8 November. Mr Duse did send in an email on 14 November which contained a link to a YouTube (Art School Live with Eric Rhoads), however I am not sure if Mr Duse provided this in response to my direction. In any event I did not consider this email addressed what I was seeking in response to my direction.
I will therefore outline what is contained in the Agency’s two SFICs to properly capture the Agency’s position.
In the first SFIC dated 16 August 2024, the Respondent contended that Mr Duse had not provided sufficient evidence which established that:
·The requested funding did not represent value for money relative to the likely benefits and the cost of alternative supports (s34(1)(c)).
·The requested funding was likely to be effective and beneficial having regard to good practice (s 34(1)(d)).
·It is not a duplication of his current funding for art therapy classes. (Rule 5.1(c)).
·It was not a day-to-day living cost that is attributable to Mr Duse’s support needs Rule 5(1)(d) and 5(2).
The second SFIC is dated 8 November 2024. It provided a summary of the recent amendments to the Act and particularly to s 34(1). In this regard a new subsection 34(1)(aa) has been added and subsection 34(1)(f) has been changed.
Subsection 34(1)(aa) is as follows:
The support is necessary to address the 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).
Subsection 34(1) (f) now provides:
The support is an NDIS support for the participant.
The Agency submitted that it considered Mr Duse’s requested funding met s 34(1)(aa) as Mr Duse had been granted access to the Scheme on the basis of ‘ unspecified psychosocial disorders’ and that his requested support was related to the management of his mental health.
The Agency submitted that the requested support did not meet the criterion in s 34(1)(f) and come within the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (the Transitional Rules) for the following reasons:
·The evidence before the Tribunal is that painting is Mr Duse’s chosen recreational activity and the support, he requests consists of art materials.
·While the evidence indicates that painting benefits Mr Duse’s wellbeing, art supplies are not a therapeutic support and not an adjunct to his current therapies.
·As such the requested art supplies do not fall within any of those supports identified as NDIS supports in item 7 of schedule 1 of the Transitional Rules being ‘assistive products used in sport or other recreational activities.’ The Agency submitted that the requested art supplies are not ‘assistive products which includes modified recreational equipment.
·Even if the Tribunal were to find that the art supplies were ‘assistive products’ the requested support is a day-to-day living cost (lifestyle) specified in either items 4(g) or 4(q) of Schedule 2 of the Transitional Rules.
·Item 4(g) includes ‘standard recreational equipment and tools including toys, balls and racquets.’
·Item 4(q) includes ‘general health, fitness, social or recreational activity costs or services.’
·As such, items that fall within day-to-day living cost related to lifestyle are ‘not NDIS supports’ as defined in s 10(4) of the Act and Rule 5(2) of the Transitional Rules.
The Agency’s evidence.
As noted above, the Agency referred Mr Duse for an assessment by Dr Scott Hall a Consultant Psychiatrist. Dr Hall conducted that assessment via a video link. He then provided a report dated 13 May 2024.
Dr Hall’s report is quite lengthy, so I do not propose to provide a summary here. In the interests of consistency, I propose to outline Dr Hall’s responses to similar questions that were asked of Ms Grace and Ms Sherry.
In terms of his recommendations of best practice evidence-based approaches for the management of Mr Duse’s psychosocial impairments, Dr Hall advised that the following met these criteria:
·Pharmacological treatments such as antidepressants.
·Medium to long term psychological therapies such as
·Group-based psychological therapies
Dr Hall indicated the following opinion as to the duration and frequency of the recommended therapies:
·He should see a Clinical Psychologist weekly or a group based DBT program for at least 12 months.
·He recommended that Mr Duse’s funding for an Exercise Physiologist be reinstated as it would likely benefit his depressive symptoms with a goal of him being able to attend his gym regularly and independently.
·He should potentially try other classes of antidepressants and recommended he see a treating Psychiatrist for an assessment of attention deficit hyperactivity disorder (ADHD) and if that condition were to be diagnosed, he could potentially commence a course of stimulant medication. He should see a psychiatrist and a GP at least monthly for the following 12 months.
Responding to a question seeking his opinion on the effectiveness of his request for funding for art supplies, Dr Hall stated that he did not consider it could be best practice or evidence based but conceded that it would likely be ‘of benefit” in terms of his general wellbeing.
Responding to a question concerning whether funding for art supplies would be recommended in addition to the existing art therapy, Dr Hall referred to his response to the previous question. Again, noting that while it was neither evidence based nor best practice, it could reasonably be argued that it is “of benefit” in terms of his wellbeing.
Dr Hall believes that formal art therapy should focus on improving core symptoms such as social withdrawal, poor motivation, disorganised sleep patterns and fatigue.
He considered that it was possible that spending large amounts of time creating art at home, may have negative aspects such as less social interaction and prioritising this over other aspects of his psychosocial functioning.
He suggested a practical approach may be for the art supplies be utilised in a local shared studio space with other artists.
He considered that if art supplies were to be funded, they should be used solely in relation to his art therapy sessions.
Responding to a question of the benefits of having support workers managing his psychosocial impairments, Dr Hall believes support workers could be of assistance in the short term but required in the longer term given he is largely independent in most areas of daily living. They could provide structured support to address social isolation, low energy, interrupted sleep, and lack of motivation.
He recommended support worker assistance for 2 hours per day, 3 times a week for a period of 6 to 8 months before gradually tapering off.
LEGISLATIVE FRAMEWORK
The NDIS has been in operation for over ten years. It is a landmark social legislation dedicated to the idea that people with disability have the right to realise their potential for physical, social, emotional and intellectual development.[15] This is one of a series of general principles guiding actions set out in section 4 of the Act. Other important principles in section 4 of particular relevance to the present case include:
[15] National Disability Insurance Scheme Act 2013 (Cth), subsection 4(1).
(2) People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability…
(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports (…)
(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports…
(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 the community and in employment.
The NDIS is administered by the Agency established under the Act. The Act sets out the matters that must be included in a participant’s plan. Subsection 33(2) provides:
A participant's plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a)the general supports (if any) that will be provided to, or in relation to, the participant; and
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c)the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d)the management of the funding for supports under the plan (see also Division 3); and
(e)the management of other aspects of the plan.
Subsection 33(5) provides:
In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a)have regard to the participant’s statement of goals and aspirations; and
(b)have regard to relevant assessments conducted in relation to the participant; and
(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d)apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f)have regard to the operation and effectiveness of any previous plans of the participant; and
(g)have regard to whether section 46 (acquittal of NDIS amounts) was complied with in relation to any previous plan for the participant.
Section 34 (as recently amended) provides:
Reasonable and necessary supports
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(aathe support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is an NDIS support for the participant.
Note: For the purposes of paragraph (aa):
(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b) a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
(2) 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).
The term “support” is not given a meaning in the NDIS Act. A “support” is defined in section 9 of the NDIS Act as including “general supports”, being those defined in subsection 13(2) as the kind of supports provided by the Agency itself. However, the term “support” and the phrase “reasonable and necessary” are not further defined in the NDIS Act. In McGarrigle v National Disability Insurance Agency [2017] FCA 308 at 91 (McGarrigle), Mortimer J observed, with respect to those words.
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (“the Rules”) made pursuant to subsection 35(1) of the NDIS Act provides further guidance with respect to the assessment of reasonable and necessary supports that will be funded. Pursuant to section 209 of the NDIS Act, the Rules are a legislative instrument and are therefore binding to the Tribunal. In this case the relevant Rules include:
Value for money
- 3.1 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:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost.
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant.
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d) for supports that involve the provision of equipment or modifications:
iii.the comparative cost of purchasing or leasing the equipment or modifications; and
iv.whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications.
(e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides.
(f) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care
Part 5 of the Supports Rules sets out the general criteria for supports and supports that will not be funded or provided:
General criteria for supports.
5.1 A support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
(b)it is not related to the participant’s disability; or
(c)it duplicates other supports delivered under alternative funding through the NDIS; or
(d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a)additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b)costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
Supports that will not be funded or provided.
5.1 The following supports will not be provided or funded under the NDIS:
(a)a support the provision of which would be contrary to:
(i). a law of the Commonwealth; or
(ii). a law of the State or Territory in which the support would be provided.
(b)a support that consists of income replacement.
Recent amendments to the Act
As of 3 October 2024, the Act was amended under the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act (Amending Act).
Under the Amending Act, new Rules were also put into effect. Of particular relevance to this matter, is the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (the Transitional Rules).
It is important to note that both the Amending Act and the Transitional Rules came into effect immediately and apply as of 3 October 2024.
The Amending Act and the Transitional Rules are designed to provide greater clarity as to what types of requested supports will receive funding approval under the Act and those supports that generally will not be approved.
As a result of the Amending Act, the definition of what constitutes a NDIS support in section 10 has changed with the new section reading as follows:
Definition of NDIS support
(1)Subject to subsections (4) and (9), a support is an NDIS support for a person who is a participant or prospective participant if the support is declared by National Disability Insurance Scheme rules made for the purposes of this subsection to be an NDIS support for:
(a) participants or prospective participants generally; or
(b) a class of participants or prospective participants that includes the person.
Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).
(2)Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (1), the Minister must be satisfied:
(a)for rules to which paragraph (1)(a) applies—that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or
(b)for rules to which paragraph (1)(b) applies—that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.
(3)National Disability Insurance Scheme rules may declare a support for the purposes of subsection (1) only if at least one of the following applies:
(a) the declaration of the support implements Australia’s obligations under:
(i)the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006; or
(ii) any other agreement with one or more other countries;
(b) the declaration of the support enables the provision of sickness benefits.
Supports that are not NDIS supports.
(4)The National Disability Insurance Scheme rules may declare that a support is not an NDIS support for:
(a) participants or prospective participants generally; or
(b) a class of participants or prospective participants.
Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).
Rule 5 of the Transitional Rules is as follows:
What supports are NDIS supports—general rule.
Supports that are NDIS supports unless otherwise provided:
1For the purposes of subsection 10(1) of the NDIS Act, a support covered by column 2 of an item in the table in clause 1 of Schedule 1 to this instrument is an NDIS support (subject to subsections 10(4) and (9) of the NDIS Act and subsection (2) of this section) for:
(a)participants specified in column 3 of the item who have old framework plans; and
(b)prospective participants specified in column 3 of the item, other than prospective participants who, if they were participants, would be required to be given notice under subsection 32B(2) of the NDIS Act (participants that are to have new framework plans).
Note 1: Subsection 10(4) of the NDIS Act allows supports to be declared to not be NDIS supports for participants or prospective participants. Those supports are declared under subsection (2) of this section.
Note 2: Subsection 10(9) of the NDIS Act provides that a support is not an NDIS support for a participant or prospective participant if the support consists of the provision of:
(a)sexual services; or
(b)alcohol; or
(c)drugs, the possession of which is a contravention of a law of the Commonwealth,
(d)a State or a Territory.
Supports that generally are not NDIS supports:
2For the purposes of subsection 10(4) of the NDIS Act, a support covered by column 2 of an item in the table in clause 1 of Schedule 2 to this instrument is not an NDIS support for any participant (subject to subsection 10(6) of the NDIS Act) or prospective participant.
Note 1: Subsection 10(6) of the NDIS Act allows the CEO, on application by a participant, to determine that a support is taken to not be declared under subsection 10(4) of that Act in relation to the participant if, among other things, the CEO is satisfied that the support would replace one or more other supports that are NDIS supports for the participant.
Note 2: Determinations under subsection 10(6) of the NDIS Act are referred to in this instrument as replacement support determinations. For additional rules about replacement support determinations, see section 7 of this instrument.
This rule gives effect to section 10(4) of the Act which states that the Support Rules may declare that a support is not a NDIS support for a participant or a prospective participant.
Schedule 2 of the Rules contains a categorised list of requested supports that are declared not to be NDIS supports. Once again, the relevant section is listed below:
Schedule 2—Supports that generally are not NDIS supports:
Note: See subsection 5(2)
1 Supports that generally are not NDIS supports.
The following table sets out supports that are not NDIS supports for:(a) a participant (unless a replacement support determination covering the support is in force for the participant); or
(b) a prospective participant.
Supports that generally are not NDIS supports.
Column 1 Column 2
Item Category Supports
4 Day-to-day living costs — lifestyle
The following:(g) standard recreational equipment and tools, including toys, balls and racquets.
(q) general health, fitness, social or recreational costs or services.
Also, of importance to an assessment of this matter are both section 10(6) of the Act and Rule 7 of the Transitional Rules.
Section 10(6) is as follows:
The CEO may determine, in writing, that a support is taken to not be declared under
subsection (4) in relation to a participant if:
(a)the support is prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and
(b) the support would, apart from subsection (4), be an NDIS support for the participant; and
(c)the participant applies to the CEO in accordance with subsection (7) for the determination; and
(d)the CEO is satisfied that:
(e)the support would replace one or more other supports that are NDIS supports for the participant; and
(f)the cost of the support is the same or lower than the total of the costs of the supports it would replace; and
(g)the support would provide the same or a better outcome for the participant than the supports it would replace; and
(h)any other conditions specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph are met in relation to the support, the participant, or bot
Rule 7 of the Transitional Rules is as follows:
Replacement support determinations
Supports for which determinations may be made:
1For the purposes of paragraph 10(6)(a) of the NDIS Act, the CEO may make a replacement support determination in relation to a support covered by column 1 of an item in the table in subsection (3) of this section.
2For the purposes of subparagraph 10(6)(d)(iv) of the NDIS Act, the CEO must be satisfied that the conditions set out in column 2 of an item in the table in subsection (3) are met before making a replacement support determination in relation to a support covered by column 1 of the item.
3The table is as follows:
Replacement support determinations
Column 1 Column 2
Item Supports Conditions
1Standard commercially available household items
The support must:
(a)The funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and community to be 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; and
(b)increase whole task independence; and
(c)reduce or eliminate the need for a support worker or disability specific assistive technology.
What these two provisions specify is that a participant may apply to have a support that would otherwise be considered not to be an NDIS support considered as a replacement support determination, subject to it meeting the requirements specified in Rule 7(3).
I shall return to the relevance of the Transitional Rules to this case when I consider whether the requested additional support can be found to be reasonable and necessary under the Act.
The NDIS Act and its Rules are supplemented by operational guidelines. The operational guidelines represent government policy and, to the extent that they are consistent with the relevant legislation, should be applied by the tribunal unless here is a sound reason not to do so.[16]
[16] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; Madelaine and National Disability Insurance Agency [2019] AATA 4025.
The National Disability Insurance Scheme Operational Guidelines – Planning provides:
This Operational Guideline provides an overview of the National Disability Insurance Scheme (NDIS), including the legal and policy framework it operates within and the variety of different ways it provides support and assistance to people with disability.
In addition, this Operational Guideline outlines the objects and general principles of the National Disability Insurance Scheme Act 2013 and provides a summary of the information which is available in the remainder of the NDIS' Operational Guidelines.[17]
[17] National Disability Insurance Agency, ‘Operational Guidelines: Overview of the NDIS Operational Guideline’ <>
There is no power conferred by the NDIS Act to make Operational Guidelines, and they are issued in an exercise of executive power.[18] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines; however, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[19], the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation, however they should not be bound by it. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection,[20] where Mortimer J (as her Honour then was) held:
‘Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it…’
[18] G v Minister for Home Affairs [2019] FCAFC 79 [18].
[19] [1979] 24 ALR 577 [590].
[20] [2018] FCA 1229.
Therefore, unless the Access Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether Ms Duse meets the reasonable and necessary criteria.
Summary of the Changes to the Legislation
I appreciate that to a lay reader much of what is recorded above is highly complex and difficult to comprehend. To summarise the effect of these changes I note the following:
The new legislation applies to both existing participants in the Scheme and prospective applicants.
The new law came into effect on 3 October and applies to all existing requests for support including those such as Mr Duse, that are currently before the Tribunal.
Section 10(1) of the Act now allows the NDIS to classify a support in the NDIS rules as a NDIS support which can be approved if it meets the other reasonable and necessary criteria in s 34(1).
Conversely s 10(4) now allows the NDIS to classify a support as ‘not an NDIS support’ in the rules.
Rule 5(2) gives effect to s 10(4) by stating that if a requested support is listed in schedule 2 of those rules, then it is ‘not a NDIS support.’
Section 34(1)(f) now requires that for a requested support to be considered to be reasonable and necessary that support must be ‘a NDIS support as well as meet the other reasonable and necessary criteria specified in ss34(1) (aa) to (e).
If a decision maker, such as myself, finds that a requested support falls within any of the 24 categories itemised in schedule 2 of the rules, then it cannot be found to be reasonable and necessary even if I were to find that all the other criteria have been met.
I note that in many cases items that are listed in schedule 2 of the rules as ‘not NDIS supports’ are identified under quite broad categories rather than as an itemised list of specific items. I have identified in paragraph 98 several of these broad categories that Mr Duse’s request for funding of art supplies could potentially fall within.
My task in this decision will be to determine if Mr Duse’s request for art supplies meets the reasonable and necessary criteria generally and whether it falls within one or more of those broad ‘not NDIS’ categories.
To find that Mr Duse’s requested support is reasonable and necessary, I will need to find that his request for art supplies meets all (emphasis added) of those 7 criteria as well as those specified in Rules 3 to 5.
Hearing on the Papers
At the most recent directions hearing held on 2 December 2024, Mr Duse again expressed his concerns as to how long it had taken to have his matter resolved by the Tribunal, that he had provided all the information he had available and added that he did not feel he would be able to represent himself at a formal hearing of the matter.
Responding to Mr Duse’s concerns, I raised with Ms Thomas representing the Agency the prospect of potentially conducting the hearing based on what is termed ‘on the papers’ namely that I would assess the documents provided by both parties and make my decision on that material alone.
Ms Thomas advised that the Agency was agreeable to this approach. I therefore directed that the Agency communicate with Mr Duse so they could agree on what documents would be provided to the Tribunal which would then form the basis of my decision. Those documents will subsequently be called the Joint Tender Bundle (JTB) in this decision.
The Joint Tender Bundle was received by the Tribunal on 17 December 2024.
In my directions made on 2 December, I indicated that I would reserve my decision from 6 January 2025 and provide my written reasons for decision in the weeks following that date.
Consideration
I will firstly list those criteria that the Agency has acknowledged are met, and therefore do not challenge:
Question: Does the requested support address needs of Mr Duse arising out of an impairment in relation to which the participant meets the disability requirements? (Section 34(1)(aa)). Answer: Yes
Question: Does the requested support assist Mr Duse to pursue the goals, objectives and aspirations included in his statement of goals and aspirations? (Section 34(1)(a)). Answer: Yes
Question: Does the requested support assist Mr Duse to undertake activities which facilitate his social and economic participation? (Section 34(1)b)) Answer: Yes.
Question: Does the requested funding take account of what is reasonable to expect families, carers informal networks or the community to provide? (Section 34(1)(e)) Answer: Yes.
The Agency has submitted that there is insufficient evidence for me to be satisfied as to the following criteria:
·That the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support. (s34(1c))
·That the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice (s34(1)(d)).
·That it duplicates other supports delivered under alternative funding through the NDIS namely his art therapy. (Rule 5.1(c))
·That it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs. (Rule 5.1(d) and Rule 5.2)
·That the support is not an NDIS support for the participant for the purposes of s10 of the Act and the Transitional Rules. (s34(10(f))
Taking account of those criteria identified in paragraph 113, that the Agency has conceded Mr Duse’s request meets, I will address each of those items the Agency asserts have not been met.
Before conducting that assessment, I think it is important to identify the general principles enshrined in both s 4 and s 17A of the Act that I consider should be informing my assessment.
The principles in s 4 I consider of relevance to Mr Duse’s application are the following:
·People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional, and intellectual development. (s 4 (1))
·People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development. (s 4 (2))
·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. (s 4 (8))
·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 the community and in employment. (s 4 (11))
The principles in s 17A I consider relevant to this case are:
·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 the community and in employment. (s 17A (1)).
The National Disability Insurance Scheme is to:
(a) respect the interests of people with disability in exercising choice and control about matters that affect them; and
(b) enable people with disability to make decisions that will affect their lives; and
(c) support people with disability to participate in, and contribute to, social and economic life. (s 17A (3)).
I further note that the decision by the Full Court of the Federal Court in National Disability Insurance Agency v WRMF (2020) FCR 415 provides additional guidance:
…the supports to be provided to a person who qualifies as a participant are intended to accommodate an individual’s particular impairments and to assist that particular individual to be a participating member of the Australian community, and to do so on the basis of the values set out in the objects and guiding principle clauses of the Act, as well as the values set out in section 17A of the Act.[21]
[21] At 446-447.
In making this decision, I am also cognisant in accordance with Rule 2.4 of the Rules to have regard to both the objects and principles of the Act and the need to ensure the financial sustainability of the Scheme.
I note that in many respects, Mr Duse’s request for funding for art material is unusual, and superficially, could be dismissed as a type of support that would not generally be considered as disability related.
However, I also consider that his two principal therapists, Ms Grace and Ms Sherry have clearly outlined Mr Duse’s unique circumstances, the centrality of art-making in his daily life, and the benefits of having such access in the areas of emotional regulation, cognitive capacity, reduction in rumination, level of independence and social and community participation.
Does the requested support represent value for money in that the cost of the support is reasonable, relative to both the benefits achieved and the cost of alternative support?
Based upon the quote provided by Melbourne Art Supplies and Ms Grace’s advice that the quote represented approximately the monthly cost of those material, I calculate this would amount to $17,046.24 over a 2-year period.
Both Ms Grace and Ms Sherry considered that having access to such materials and the capacity to do art works, has in the past and would lead to significant benefits for Mr Duse’s mental health, his level of independence, emotional regulation and increase his level of social and community engagement.
Dr Hall also considered that the funding would be “of benefit” in terms of Mr Duse’s wellbeing while also observing that he considered it was not best practice and evidence based. I must admit that I am not entirely clear what Dr Hall was indicating by putting the words of benefit in inverted commas however it appears to me that if he believed it would not be beneficial, he would have said this.
In terms of the likely cost of alternative supports based on Dr Hall’s recommendations this would include the likely expenditure on the following supports:
·Weekly sessions with a Clinical Psychologist for at least 12 months.
·Monthly sessions with a psychiatrist for at least 12 months.
·Reinstatement of sessions with an Exercise Physiologist (frequency not specified) for 12 months.
·Support worker assistance for 2 hours per day, 3 times per week for a period of 6 to 8 months before gradually withdrawing.
I think I can safely find, taken as a whole, that the cost of these recommended alternative supports would greatly exceed the amount I have identified required for the provision of art supplies over a 2 year period.
Based upon these observations, I am of the view that the requested support represents value for money relative to the likely benefits and the anticipated cost of recommended alternative supports.
This criterion is met.
Will the requested funding be, or is likely to be, effective and beneficial for Mr Duse, having regard to current good practice?
As I noted above, there appeared to be consensus among Ms Grace, Ms Sherry, and Dr Hall that the proposed support would be beneficial although, as noted above, Dr Hall was quite restrictive in the definition of what he considered constituted a benefit.
Dr Hall considered that it was neither best practice nor evidence based.
It appears to me, based upon their responses to the targeted questions, that both Ms Grace and Ms Sherry believe that the provision of funding for art supplies would be effective, although I also note that specific question was not put to them.
I also note that neither Ms Grace or Ms Sherry was asked for their opinion on ‘best practice’ or ‘evidence based.’
This is unfortunate, as in the absence of a formal response to those specific questions, I am not sure of what their view on this would be.
Having said that, both therapists consider that the provision of this funding has had demonstrated benefits in the past and would be likely to do so if this funding were to be approved. In that sense I consider their view based on these observations of Mr Duse over time could be considered to be evidence based.
Overall taking account of the views of these Therapists, I consider that s34(1)(d) has been met.
Does it duplicate other supports delivered under alternative funding through the NDIS namely his art therapy?
Both Ms Grace and Ms Sherry considered that the proposed funding would not duplicate his art therapy funding and that the two supports would operate in a manner where they would be reinforcing of the benefits provide by the other.
Dr Hall again took a more restrictive view, when he stated that ‘a limited amount of art supplies’ to allow Mr Duse to complete goal-directed tasks would be reasonable, adjunct to the art therapy. Dr Hall did not provide an opinion of what might constitute ‘a limited amount of art supplies.’
Given that all three therapists largely agreed on this criterion, I accept that the weight of the evidence indicates it would not duplicate Mr Duse’s other supports.
I therefore find that I find this element in Rule 5.1(c) is met.
Does the requested support relate to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs?
It appears to me that with the recent amendments, there is now a degree of overlap between Rules 5(1)(d), Rule 5(2) and the recently amended s34(1)(f). This is particularly the case as Schedule 2 of the Transitional Rules also refers to certain categories of expenses (in this case what are termed lifestyle expenses) as being day-to-day expenses. I will address this criterion separately in the following section.
However, in assessing the relevance of Rule 5(1)(d) to this requested support, I consider that the weight of the evidence indicates that the requested cost is directly related to Mr Duse’s disability support needs.
Both Ms Grace and Ms Sherry considered this was the case, with Dr Hall recommending some more limited degree of funding for art supplies.
Again, all the therapy evidence indicates that the requested support is directly attributable to Mr Duse’s disability support needs.
I consider that Rule 5(1) and Rule 5(2) have been met.
Is it a support is an NDIS support for the participant for the purposes of s10 of the Act and the Transitional Rules?
As I noted above, the overall effect of the Transitional Rules is to provide guidance as to what supports may be considered as NDIS supports and those that should be considered not to be NDIS supports.
The various categories of potential NDIS supports are listed under various categories in schedule I of the Transitional Rules while those identified as ‘not NDIS supports’ are listed under various categories in schedule 2.
I agree with the Agency’s submission that in both cases, the most appropriate category in which to place Mr Duse’s requested art supplies, is ‘assistive equipment for recreation’ (item 7 in schedule 1) and ‘day-to-day living costs lifestyle’ in item 4 schedule 2.
In item 7 of Schedule 1 assistive equipment is stated to include modifications of personal recreation equipment
In reference to whether the requested art supplies can be assistive equipment for recreation, the Agency stated as follows:
It is submitted that the Requested Support is not an assistive product of recreational equipment, services to implement and train a person in using modified recreational equipment and maintenance and consumable items associated with assistive products.[22]
[22] JTB 30-31.
I agree with that interpretation and further agree that Mr Duse’s art supplies could not be considered to be ‘assistive products.’
In relation to requested supports identified as ‘not NDIS supports’, these categories are listed in item 4 of schedule 2. Those include the following sub-categories:
standard recreational equipment and tools including toys, balls and racquets (4 (g)); and
general health, fitness, social or recreational activity costs or services. (4(q))
In both examples, the word ‘recreational’ is modified by the words ‘standard” and ‘general’
In relation to whether the requested art supplies should be considered to be an NDIS support, it is apparent that the art material Mr Duse wishes to be funded for is identical to what any artist wishing to paint and is not modified in any way.
In relation to whether Mr Duse’s art supplies fall within the categories in 4(g) or 4(q), I think it more properly falls under item (q). This is because item (g) to my mind is more related to sporting equipment given the examples provided of toys, balls, and racquets.
Unlike Rule 5(1) in the Support for Participants Rules, there is no requirement in Rule 5(2) of the Transitional Rules that links the requested support to a participant’s disability support needs. In the case of the Rule 5(1), if there is such a link between a requested support and a participant’s disability support needs, it is then possible to infer that it is therefore not a day-to-day living cost.
Therefore, if a support is listed in schedule 2 as ‘not an NDIS support’, it is irrelevant that it is related either directly or indirectly to a participant’s support needs.
On the basis of the above, I have concluded that Mr Duse’s request for art supplies is not an NDIS support.
As I noted earlier, for me to approve Mr Duse’s request, I need to be satisfied that every requirement in each subsection of s 34(1) and Rules 5 (1) and (2) have been met.
Therefore, for the reasons outlined above, I have found Mr Duse’s request for NDIS funding for art supplies cannot be approved.
Conclusion
Based on the Tribunal’s above findings, not all the criteria under section 34(1) of the NDIS Act are satisfied in relation to the requested support. Having considered all of the evidence in this matter, the Tribunal is therefore not satisfied that funding for art supplies meets all of the criteria to be approved as ‘reasonable and necessary’ under the NDIS Act and for inclusion in the statement of participant supports in Mr Duse’s NDIS plan.
Decision
The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth).
I certify that the preceding 161
(one hundred and sixty-one)
paragraphs are a true copy of the
reasons for the decision herein
of General Member A. Williams…..........................[sgd]...........................................
Associate
Dated: 16 January 2025
Hearing on the Papers
6 January 2025
Solicitor for the Applicant:
Self-represented
Solicitor for the Respondent:
Maddocks Lawyers
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