DZQW and National Disability Insurance Agency (NDIS) - [2025] ARTA 1543

DZQW and National Disability Insurance Agency (NDIS) [2025] ARTA 1543 (11 August 2025)
Applicant/s:  DZQW
Respondent:  National Disability Insurance Agency
Tribunal Number:                2023/3770
Tribunal:General Member A. Williams
Place:Hobart
Date:11 August 2025

Decision: Pursuant to subsection 105(c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with the orders that:
1.within 28 days of this decision DZQW’s statement of participant supports specifies the following supports:
(i)        Specialist Disability Accommodation
·     Building Type: two-bedroom apartment, one resident, with unplanned on-site shared support in an SDA
·     Design Category: Fully accessible
·     Location: Newcastle, New South Wales
(ii)41 hours per week for support worker assistance

2.the Agency conduct an urgent review of the Applicant’s support needs now that she has been approved for SDA.
3.all other supports in DZQW’s existing statement of participant supports are to be replicated pro-rata from the date of this decision until the reassessment date.

.................[SGD]...................
General Member A. Williams
NATIONAL DISABILITY INSURANCE SCHEME – Special Disability Accommodation – eligibility criteria – suitable building category – suitable building type – number of bedrooms – suitable location – whether 53 hours support at 1:1 ratio is required – onsite shared support – participant’s preference – reasonable and necessary – benefits to be achieved – value for money – decision set aside and remitted for reconsideration
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 (Specialist Disability Accommodation) Rules 2020 (Cth)
Cases
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 415
Secondary Materials
National Disability Insurance Scheme Operational Guideline
Statement of Reasons

This application is about whether the Applicant, DZQW can have her request for funding of Special Disability Accommodation and 23 hours per 1:1 support per week plus concierge support by the National Disability Insurance Agency (the Agency) as well as 23 hours per week of support worker assistance with concierge support approved as part of her funded supports. DZQW seeks review of a decision made on 16 March 2023 by a “reviewer” under ss 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 3 January 2023 to approve a statement of participant supports.
[1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘TD’).
I will refer to DZQW as either the Applicant or DZQW. I will refer to the Agency as either the Respondent or the Agency.
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.
Background
DZQW is a 39-year-old woman who lives in a property in coastal New South Wales with her mother. That property is her mother’s home and consists of 4 bedrooms and 2 bathrooms. It is located on a steeply sloping block accessible by a steep driveway.
DZQW has the following diagnosed physical conditions:
·Talipes equinavara (commonly referred to as ‘clubfoot’).
·Right leg length discrepancy.
·Epilepsy
·Scoliosis.
·Osteoarthrosis.
·Hearing impairment.
·Multiple right ankle fusions.
·Post-concussive syndrome.
·Deep Vein Thrombosis.
DZQW has the following diagnosed psychosocial conditions:
·Schizophrenia.
·Major Depressive Disorder (MDD).
·Generalised Anxiety Disorder (GAD).
·Bipolar Affective Disorder (BAD).
·Attention Deficit Hyperactivity Disorder (ADHD).
DZQW was accepted as a participant in the NDIS in 2016 based on her diagnoses of schizophrenia and her secondary physical conditions.
In her application, DZQW requested the following additional supports be included in her plan:
·Funding for Disability Support Accommodation (SDA) including:
(i) Design Category: Fully Accessible.
(ii) Building Type: Apartment, 1 resident.
·23 hours per week 1:1 support per week plus concierge support
Her NDIS supports in her most recent plan between 25 October 2022 and 24 October 2024 are as follows:
Core Supports
·$148,867.84: including $800 for low-cost assistive technology and $21,935.68 for support preparing meals (plan managed).
Transport
·$5,350.50: Support to access work study or travel to participate in social and community activities.
Capacity Building Supports
·Improved Life Choices: $2,739.15 (NDIA managed).
·Improved Daily Activity for Occupational Therapist and Psychologist $9,801.60 (plan managed).
·Skill development and training including public transport training $14,920.80 (plan managed)
·Improved health and wellbeing including funding for exercise physiologist, and a personal trainer $3,872.82 (plan managed)
·Support Coordination $15.867.80 (plan managed).
Decision under review and application for review to this tribunal
The Respondent provided an approved statement of supports for DZQW on 3 January 2023 after assessing DZQW’s request for funding for the above. It advised that DZQW’s request for the funding, 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 January 2023, DZQW requested that the Agency conduct an internal review of the initial decision.
The Respondent conducted its internal review and on 16 March 2023 advised that it had confirmed the initial decision’s finding that DZQW’s request for funding would not be approved, (the reviewable decision).
The basis for the review decision was as follows:
Request for Supported Disability Accommodation
·It was not related to DZQW’s disability (NDIS (Supports for Participants) Rule 5.1 (b).
·It did not represent value for money (Section 34(1)(c)).
·Evidence does not indicate It will be effective and beneficial Section 34(1)(d)).
·Not the responsibility of the NDIS to fund. (Section 34(1)(f)).
23 hours per week of support at 1:1 ratio (plus concierge support)
·It was not related to DZQW’s disability (NDIS (Supports for Participants) Rule 5.1 (b).
·It did not represent value for money (Section 34(1)(c)).
·Evidence does not indicate It will be effective and beneficial (Section 34(1)(d)).
On 5 March 2023 DZQW applied to the then Administrative Appeals Tribunal (AAT) for the AAT to conduct an independent review of the reviewable decision.
In the application for review, DZQW’s noted the following as reasons why she considered the reviewable decision was wrong:
I believe the decision made by the internal review team is wrong as it does not take all the evidence provided to the NDIS so far into consideration. The decision letter for my s100 internal review does list their reasons for denying access to SDA funding for safe and appropriate housing, however it seems to fail in understanding the entire situation in several key areas, or its complexity. Housing in SDA is both urgent and necessary, it is the only reasonable option as the reports submitted explained, and several people have agreed I am more than eligible for it based on the agency’s criteria. I will be collecting further documentation to submit to address the points raised by the NDIS in the decision letter, explain why I disagree, and I also will need to add more details as the delay in their internal review process has resulted in more factors. This ordeal so far has had a huge toll on NDIS funds, my ability to appropriately use my supports for maintaining independence and taken away chances to work towards my goals. It has been an unnecessary and unfair strain on my informal support and her health too. I have no choice or say in my life, and the situation is urgent. As a result, it’s caused more health issues for me both mentally but also physically. I now have increased dependence on others, and more support needs. I believe access to SDA was always a reasonable request, however it appears the decision does not properly reflect my reasons and wishes in their consideration of my S100. Other options aren’t appropriate or accessible, so the situation has continued to escalate. I would like to request it be reviewed, but by an external rather than internal process this time.
May I please be granted confidentiality for this AAT review. My health information including mental health details are very sensitive and personal. I have had to share so many things that are uncomfortable and at times feel humiliating to me to try and gain access to accommodation and with more information being shared I feel it is detrimental to wellbeing and my privacy for such personal details and things that might identify myself being published or made public. I’d really prefer everything is confidential unless it is to people directly involved in this AAT process. Thank you.
Evidence and Submissions
Evidence
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:
·Report from Danni Bodycott (Occupational Therapist, HB Rehab) dated 27 June 2022.
·Support Letter from Cassandra Barrett (Psychologist) dated 28 July 2022.
·Report from Michael Broadbent (Physiotherapist) dated 9 August 2022.
·Letter from Cass Worpell (Psychologist) dated 10 August 2022.
·Conditional offer of SDA from Insitu Housing dated 6 September 2022.
·Supporting evidence form - Home and Living dated 21 November 2022.
·Home and Living decision letter dated 4 January 2023.
·Letter from Dr Milton Sales (GP) dated 11 January 2023.
·Report from Steph Sillet (OT) dated 30 January 2023.
·Carer Impact Statement from DZQW’s mother (undated).
·Support letter from Georgia Inglis Support Coordinator (undated).
·Letter from Maddison Berry Advocate (undated).
After DZQW filed her application, she submitted the following additional evidence:
·Email dated 26 June 2023 providing update on the requested supports.
·Epilepsy Management Plan dated 20 February 2023.
·DZQW’s Statement of Lived Experience dated 17 August 2023.
·Report from Laura Neely (OT) dated 21 August 2023.
·Email dated 16 October 2023 from DZQW confirming she was nor consenting to independent OT assessment.
·Response to request for further information on SDA from Dr Milton Sales dated 27 November 2023.
·Response to request for further information letter from Ms Neely dated November 2023.
·Letter of support from DZQW’s mother dated 26 November 2023.
·Letter of support from Cass Worpel, Psychologist dated 28 November 2023.
·Epilepsy Smart Australia Epilepsy Management Plan dated 28 February 2024.
·Aruma On-Site shared support plan submitted 27 March 2024.
·John Hunter Hospital Response to targeted questions dated 27 March 2024.
·Applicant’s Statement of Evidence dated 29 April 2024.
·Record of Seizures October 2023 – April 2024 submitted 2 May 2024.
·Dr Chris Wellard response to targeted questions dated 8 May 2024.
·Letter from Dr Natalia Murray (Neurologist) dated 12 September 2024.
·Response to targeted questions from Dr Murray dated 11 October 2024.
·Assistive Technology Report of Ms Lily Miller dated 27 September 2024.
·Epilepsy Management Plan dated 18 February 2025.
·Aruma On-Site shared support inclusions.
·NDIS epilepsy supports dated 23 February 2025.
·Epilepsy Queensland (Sudden Unexpected Death in Epilepsy) dated February 2023.
·Mula et al Psychiatric Comorbidities in People with Epilepsy.
·Table of informal supports dated 7 April 2025.
·Letter from Dr Milton Sales dated 12 May 2025.
·Disability Related Health Supports dated 2 June 2025.
DZQW’s Evidence
DZQW provided a Statement of Lived Experience (SOLE) and a response to a series of targeted questions provided by the Agency.
Statement of Lived Experience
DZQW’s SOLE is an extensive and detailed document in two parts. The first is a response to the Agency’s Statement of Issues, while the second part outlines why she considers her circumstances meet the SDA criteria.
Given the length of this document, I propose to provide a summary of why DZQW considers she meets the eligibility criteria for SDA under the following headings:
(a)the eligible participant’s preference, if the preference can be established and it aligns with the eligible participant’s statement of goals and aspirations.
In my NDIS plan, I identified that I want to transition to single occupancy SDA. It’s a goal of mine and something that will help me with all areas of my life. I am a woman who has been forced into many environments and situations because of my disabilities. I want to live alone; I don’t feel comfortable or safe being in shared accommodation and those kinds of environments take away my freedom and chances to truly build my independence without feeling I am living the rest of my life in an institutional environment. I am tired of hospital settings; I want freedom of working on my goals. Being dependent and unable to achieve the things that I could with the right accommodation and support is contributing to deteriorating mental health and impacting my ability to engage in my life.
(b)the features of the building type in relation to the eligible participant’s needs.
I asked for fully accessible because it was a model that met all my accessibility and support needs including changes that may arise to my mobility as I age and times when I need extra support. I would not need to relocate if my mobility declined or I required more assistive technology, and I am hoping for living in SDA being sooner rather than later. I would have the supports I need there, and it will over time build capacity to do more for myself.
(c)the support model that is more appropriate for the eligible participant, having regard to the eligible participant’s needs and whether immediately available or constant person-to-person support is required.
I need immediate help available but do not want to live with constant care or in shared accommodation. I want to live to the best of my ability without support, but it is necessary I am safe, and help is available onsite if I need. Having access to single residency fully accessible housing with concierge support provides this without making me rely on supports that I do not need or want.
(d) the eligible participant’s support needs.
I have submitted many reports that try to outline some of the complex disability issues I face, and they talk about supports I would need to achieve my goals. I need a plan that will adequately meet me where I am at currently and move me to transition once I have SDA. Afterward, I think my need for support can be reduced overtime directly from the benefits of SDA. Having access to what I requested reduces the need for 1:1 support and builds my functional capacity.
(e)whether the building type represents value for money in that the costs would be reasonable, relative to both the benefits achieved and the cost of alternatives.
The benefits to my mental health would be extremely significant and the design would also vastly improve my mobility and chance to build on what I can manage with my activities of daily living. I would be able to cook for myself and learn to get out more independently reducing the need for 1:1 support hours. I need to live safely; the building type is where the concierge model means I won’t need to put myself in a shared home or have someone stay with me every single night in case of a seizure. Fixing mum’s house is drastic, still won’t allow full access and temporary as mum herself won’t live here forever. Trying to find FACS would require modifications and a wait list for a fully accessible apartment is huge, by time I got a place, mum would not be able to look after me here, and honestly, I doubt I would be able to reach my goals by then and it does not address the amount of support I would need.
(f)The extent to which the building type would facilitate social and economic participation, including how the building type may impact on:
(i)the eligible participant’s ability to engage in the life of the household and community.
SDA will facilitate living in my house the way I choose. Allow me greater capacity and access to complete my own daily living tasks and reduce lot of disability related challenges. I would be able to build my capacity, and each day can be used to work toward furthering my goals and reducing the impact of bad days on my independence both within and outside of my home. Being able to access my community with less support, build meaningful relationships and meet others around me reduces my isolation which benefits me psychosocially. I would have increased chance to engage with others as well work on my interpersonal skills and emotional regulation. One day I would love to do more than just live alone, maybe I could work or volunteer, but I need to work on achieving the independence in my daily life first. With increased wellbeing I could possibly explore options to participate more in both social and economic ways.
(ii)The dynamics of the household, including the eligible participant’s ability to share with others and build relationships.
My ability to share with others is reduced because of my age. Since my early twenties, I have only ever shared a house with intimate family. Hospitals mean I am forced back into shared environments, but these admissions often cause more distress and decrease my ability to emotionally regulate and feel independent.
…
Currently, I do not feel comfortable living with others, which is one reason why I requested single residency. There are times in my home here with mum where I am distressed or irritable too. My psychiatrist talks about my psychosocial skills are not great and interpersonally I struggle at times with communication. SDA would give me space to work on skills in a place ideal for me to thrive. Without my own place I cannot have potential friends over or create flexible plans and supports that suit my needs and preferences. It is reasonable for a person my age to be independent in how they connect with others where possible. With privacy and a suitable sensory environment away from others to live, I am helping myself regulate, promote wellbeing to strength how I build on my social skills.
…
I want to be comfortable and relaxed where I live and not feel like a burden or that I am negatively impacting others when I am unable to handle being around them. I do not want to have to have the added worry of feeling triggered by housemates when they are struggling with their disability related issues.
(g)the extent to which the building type facilitates past, established or planned connections or the continuation of established connections, in particular cultural and community connections.
I do not have community groups that I am a part of currently, and my old friendship circle no longer contact me. I have found meaningful relationships online through writing, but I want to find friendships that are here too. I want to socialise with people who understand me, that I easily connect with, and that share similar interests. I want mutually interested friendships.
I want to have the option to have friends and family come to visit me without needing to consider others in a shared space or must cancel planned supports. I want freedom to be authentic and genuine without constantly feeling I am putting others out by living a normal life or feeling embarrassed by the stigma that comes attached to shared accommodation. I can live alone and want to live alone but I do need support to do so. I want to be able to socialise and have relationships without added barriers that I know I find in shared accommodation and living with my family.
(h)the extent to which the building type increases, reduces or mitigates the risks to the eligible participant and others, having regard to the eligible participant’s response to risk and the interaction of the eligible participant with the environment.
I have not been able to get along with other people that I have lived with in shared accommodation previously, and I feel needing support makes it hard to have the relationship I would want with my family and potential friends. When I have lived alone but could not fully access the community without support, I became more isolated. SDA is the best of both worlds. I can live independently and be supported with things as they come up.
Mum’s health and wellbeing is at further risk currently, SDA that meets all the concerns that both her and I share. Our relationship feels like it’s entirely about her role as carer, she’s finding it increasingly harder to provide the supports I need. Knowing that I am safe and supported will reduce the huge amount of burden I am on her.
(i)the extent to which the building type improves the life stage outcomes for, and be of long-term benefit to, the eligible participant.
The SDA that I requested reduces the need for constant support and care. It encourages my independence and allows me to work on goals that I want to and that I should be able to achieve. I will see benefits especially improved wellbeing. Having independence but with on call support to me is the only reasonable option. It reduces the fatigue and drain of being over supported or put in a situation that sets me back. I will be able to care for myself better in many areas that a 37-year-old should, reduce further risks to my quality of life and age-related decline and preform more activities of daily living with the reassurance I am safe and that I can get help when required.
My quality of life will improve. I want to make friends, be part of the community and meet people that aren’t support workers or other people with disabilities. I will be able to build hope for my future and invest in things that bring me joy and pride.
I can get the confidence that I am a worthwhile person, who is not less than my peers. I want to have a role in society despite the barriers I face in life. Living in SDA provides opportunities to become more like an adult who makes the most of her life.
A lot of my anxieties, agitation and depressive episodes are directly influenced by my independence (or lack thereof) and my ability to do meaningful things that I would want to do. I want to live in SDA and build a better life for myself.
(j)the extent to which the building type impacts on the eligible participant’s capacity or capabilities, including:
(i)whether it alleviates the impact of the eligible participant’s impairment on the eligible participant’s daily functioning
I will be able to do so much more with the requested SDA and build on the strengths I have and those that I want to invest in to make my life be less impacted by my disabilities. SDA will lessen the negative impact my disabilities have on my quality of life. I will need less supports than with any other design, model or option.
(ii)whether it enhances the eligible participant’s skill development, in particular independent living skills.
I want to develop routines that are flexible and appropriate for myself and my choices, cook, move around more freely, and be able to complete daily self-care tasks even on the worse days where I cannot safely mobilise. I want to have my space how I choose to help with my sensory needs relating to my disabilities so that noise, environmental factors and interpersonal stressors have less impact on my ability to complete daily tasks.
A second bedroom would be necessary for a support worker to stay overnight in the events where more support is needed. I could also use it though for my space to write, develop my creative skills, study or one day even find work. The room could help me be comfortable and promote productivity. That is one of the reasons why the OT gave that recommendation.
(iii)whether it increases the benefit and effectiveness of supports, other than specialist disability accommodation, for the eligible participant’s skill development, in particular independent living skills.
Further development of independent living skills and my capacity building supports are hindered by my living arrangement currently and would be if I were to move to an unsuitable living arrangement. My supports would be able to be arranged in a way that I could access them with more ease, and they would be tailored to my needs without needing to fit in with others. I would be able to use my supports to build the life I want in the place of my choosing instead of helping me regulate constant distress and depression of feeling dependent and helpless.
(iv)whether it enhances the opportunity for a move to accommodation other than specialist disability accommodation, or to lower cost specialist disability accommodation, in particular through a transition period with intensive capacity-building supports.
Over time, I want to reduce my need for help with daily tasks, social community access supports, and reduce the hours I need with capacity building supports like psychology, physiotherapy and occupational therapy. SDA will help me achieve this.
I want to make the most of the model to maximise freedom, improve functional capacity and confidence. This increases my wellbeing. I doubt I would need the level of support I currently require long term; I would be able to do more things for myself, practice them in an environment that is safe, where help is available if I need it. This is instead of having someone come in daily for things like preparing meals.
I would be able to cook more, build strength and ability to get around and get better skills that will help reduce the bad pain days. I could build a social group, explore study or contributing to society options maybe, get outdoors and experience the benefits of sunlight and have ease of mobility, greater capacity to access my community and more.
(k)the extent to which the building type facilitates or sustains informal supports and the extent to which those supports reduce the cost of other supports.
Living in the SDA of my choosing allows my family to visit me and us to spend time that is not related to health needs, my disability, getting support and appointments. It would improve our relationships, and I wouldn’t be dependent on them.
Living in SDA, the one I requested, would help me build friendships and have the possibility of inviting people over in a social context.
I cannot go outside unassisted here, but the fully accessible single residency apartment through SDA means that I could go out, interact with neighbours and my surroundings with my wheelchair in my community.
(l)the extent to which the building type facilitates or hinders the provision of other supports required by the eligible participant;
Having on call support on site helps me be supported when situations arise that I require help with whether they be major or minor. These building are fully accessible and allows supports to come in and assist with ease without impacting other people and helps me to go outside more freely. Concierge models when I have looked within my chosen area are only available in fully accessible SDA or higher design category. Fully accessible meets all my building needs and my support ones.
In case of seizure or emergency support, extra 24-hour support temporarily will help me remain in my home and reduce the need for extended hospital stays to stabilize my seizures and help me regain functional capacity. SDA provides these benefits without being in a situation that I do not have my own space or say.
My daily routines will be able to be flexible and based on my needs rather than having support when it is not necessary.
(m)the extent to which the building type facilitates access to other support or specialist services required by the eligible participant, and which are not funded or provided through the National Disability Insurance Scheme.
The model of SDA is fully accessible. These single residence apartments would be ideal and help me be able to get out in my power wheelchair. I could build the confidence to go out unassisted and maybe use public transportation without needing help to leave the building. The more independent I am, the more I can become part of my community, access my community supports, attend events and possibly pursue further education.
As mentioned before this building type is the most suitable one for me to access concierge support that is both reasonable and necessary for me.
DZQW’s final observations

DZQW added some concluding comments in her statement which I have recorded below.
No other option will work for me.
Living independently will have many long-term benefits. I expect the amount of support I require will decrease as I have access to a place of my own that facilitates independence, building my functional capacity and confidence and promotes better mental wellness by reducing the impacts of my disability.
My current living arrangement is unsustainable and unsuitable. It isn’t fair that I cannot live in a place of my choosing and have a sense of capability and control because of being disabled but am made to feel like the NDIA don’t understand my disability needs.
I am 37, my mother is ageing and has her own health conditions that she struggles with. Living with mum is not safe, has my mental health and confidence deteriorating and is holding me back from the life I want as a woman my age. It restricts my choice and autonomy and is a huge toll on her as my only informal support. She needs to know, as do I, that I can live a life with the appropriate supports when she isn’t able to be that support.
I loved trying to live independently, having my own place has always been a goal of mine. In the past, the unsuitable arrangements and lack of options meant that I had to give up that goal so that I could live safely and supported because no other options were suitable. The requested option is the only one that is suitable and reasonably meets all my concerns.
None of the other options available to me meet all the complex needs and challenges that I face as a direct result of my disability. Even since the internal review outcome I again researched other options, and attended a local event on housing and none of the others are right.
Not only do I want to live in SDA, but I also want to use it to help me potentially reduce the amount of support I require in my daily living and achieving my goals.
For over a year I have been advocating for myself and my right to access SDA. I have been fighting my whole life to be more independent and capable. My supports and the reports agree that the SDA design category, with the concierge system and 23 hours of support I asked for is not only reasonable, but it is necessary and will vastly help improve my quality of life.
I hope we can reach an agreement soon, so I can finally move forward in pursuing better quality of life in a place of my choosing.
Response to targeted questions
DZQW provided a written response to a series of targeted questions from the Agency. These responses are lengthy and detailed, so I do not propose to record them as written.
However, I note that the responses to the Agency’s questions cover the following topics:
·Her recent steps to acquire accommodation through the public housing system.
·Reasons why social housing is not anticipated to be accessible for her.
·What assistive technology that assists with seizures have been explored.
DZQW provided a detailed cost comparison between the anticipated cost of SDA and the provision of supports if she was living in social housing and noted that SDA would be significantly cheaper than that alternative and therefore represented value for money.
Further targeted questions were provided to DZQW’s Neurologist, Dr Natalia Murray, who provided her response in a letter dated 11 October 2024.
As with DZQW’s responses, Dr Murray’s are also lengthy and detailed.
However, in summary, Dr Murray advised as follows (answers in italics):
·Triggers for seizure activity: stress, sleep deprivation, heat, but not all seizures have predictable triggers.
·Frequency of seizure activity: First episode 2013, second episode 2019 EEG evidence of nocturnal seizures in 2021 Ongoing seizures: 2-3 per month currently.
·Timing of seizures: primarily overnight.
·Types of seizures: convulsions/epileptic seizures of generalised nature.
·How do seizures present: Rhythmic movements, tongue biting, incontinence, abnormal posturing.
·Alignment of Applicant’s description of seizure activity with clinical observations: yes – amnestic to episodes.
·Physical and psychological impacts of seizures: Incontinence. 24-hour postdrome of grogginess, fatigue, cognitive changes, muscle discomfort and difficulty walking. DZQW also has a significant mental health disorder and physical limitations affected by presence of uncontrolled seizures.
·Underlying cause of seizure activity: Idiopathic. EEG data supports a generalised epilepsy.
·Summary of Seizure Management Plan: Safety management during a seizure, avoid activities in which harm would occur in the event of seizure [swimming, bathing alone, driving].
·Have rescue medications been prescribed: No rescue medications – all seizures have self-terminated within minutes.
·Approach/recommendations for best practice for a seizure management plan: Recovery position, remove dangerous objects, stay by patient’s side, call ambulance if >5 minutes, check for injuries.
·Whether the Applicant’s epilepsy has worsened over the last 12 months: Dose limiting effects of antiseizure medications, adverse reactions to most of the commonly prescribed anti-seizure medications.
·Has the Applicant’s gait and balance worsened, due to her epilepsy, over the last year, and whether this has affected her capacity to transfer and mobilise safely indoors and outdoors: Gait is compromised by prostheses in the setting of congenital talipes with multiple orthopaedic procedures, habitus and incoodination in the post ictal setting.
·Applicant’s treatment history:
Current –
Lamotrigine 75mg mane 100mg nocte; intolerant of higher doses
Vimpat – neuropsychiatric adverse effects
Carbamazepine – dose limiting adverse effects
Valproate – mood, cognitive, suicidal ideation
Lamotrigine – dose limiting effects at 200mg daily
Zonisamide – ineffective as monotherapy, weaned for fear of dual sodium channel blocker aide, adverse effects with Lamotrigine
Topiramate – Ineffective
Keppra – suicidality
Brivaracetam – Shortness of breath and dizziness
Perampanel – suicidality, CNS effects
·Emergency medication: Not recommended
·Surgery: Not applicable [generalised epilepsy]
·Diet: No evidence for specific diets e.g. ketogenic diet in this setting
·Available evidence-based treatment options: Further medication trials are recommended but unlikely to result in excellent seizure control.
·Impact of seizures on Applicant’s daily activities: Cognitive effects of seizures and medications – dressing, safely mobilising, attending personal cares, meal preparation
·Safety risks and steps to remedy: Yes
Recovery position
Remove danger
Time seizure and if >5 minutes call ambulance
Assess for ongoing rhythmic movements/eye movements/head movements
·Assist if incontinent of urine – bed and clothing changes, stand by assist for walking.
·A nocturnal seizure: As above.
·Does the Applicant require the availability and assistance of a support worker at all times to assist in the management of her seizures? Risk of SUDEP – nocturnal death with overnight seizures, role of support worker would be observation, ensure safety during seizure, contact ambulance as outlined above, assist with personal cares and transfers.
·Are the Applicant’s seizures being appropriately managed. In reaching your opinion, please consider the following: a) has the Applicant engaged in or completed recommended treatments?
·Yes, however treatment related side effects have limited dose optimisation, the patient is motivated to lifestyle measures to promote seizure control, however treatment related side effects have limited dose optimisation, the patient is motivated to lifestyle measures to promote seizure control.
·What appropriate, evidence-based treatment options are available for the Applicant to treat the functional impacts of her epilepsy condition: Other options include gabapentin, Dilantin, oxcarbazepine but given adverse reaction to other sodium channel blockers I am not optimistic she will tolerate these. Referred to epileptologist for further input. Unlikely to achieve seizure freedom
Parties’ Statements of Position
During the conduct of the Tribunal’s pre-hearing procedure, both parties filed with the Tribunal Statements of Issues (SOI) and Statements of Facts, Issues and Contentions (SFIC).
The purpose of both an SOI and 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 to identify where the parties disagree on these points.
These are updated on a regular basis to take account of new evidence and other material provided by the parties.
The most recent or relevant of these documents will be referred to throughout this decision.
On 1 December 2023 DZQW provided a statement of lived experience.
I have separately outlined DZQW’s submissions addressing the SDA criteria.
Agency’s evidence
The Agency provided a report prepared by Ms Jessica Harper (Occupational Therapist) acting as an Independent Medical Expert dated 14 August 2024.
Ms Harper’s report is quite lengthy, so I do not propose to provide a summary here. Much of Ms Harper’s findings will be addressed when I record her oral evidence to the Tribunal.
Parties’ written submissions
The Agency’s statement
The Agency’s most recent SOI and SFIC were filed on 12 November 2024 and 7 February 2025.
I propose to only refer to the SFIC submitted in February 2025.
This SFIC itemised the various supports DZQW was seeking and the basis the Agency said for why it did not comply with s 34(1) of the Act or any relevant rules. In this regard, those rules include the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (the SDA Rules).
With respect to DZQW’s request for SDA, the Agency stated that the key issues before the Tribunal were:
(a)whether DZQW is eligible for SDA funding on the basis that it is reasonable and necessary support for her, having regard to the SDA Rules; and
(b)if so, what type and form of SDA is appropriate for the Applicant, having regard to the SDA Rules.
With respect to her request for 23 hours 1:1 support, the issue is whether that support is reasonable and necessary as required under s 34(1) and the Access Rules.
In relation to DZQW’s request for funding of SDA, the Agency contended that:
·DZQW did not meet the requirement under Rule 11 of the SDA Rules, namely, that she has an extremely reduced functional capacity or has a very high need for person-to-person supports in undertaking the activity even with assistive technology, equipment or home modifications.
·Even if she did meet the criteria in Rule 11, the Agency contended that she did not meet the reasonable and necessary criteria in s 34(1).
In particular, the available evidence did not establish:
·the requested support represents value for money in that the cost of the support is reasonable, relative to both the benefits achieved and the cost of alternative support, as required by s 34(1)(c) of the Act.
·there are comparable supports which would achieve the same outcome at a substantially lower cost: r 3.1 of the Support Rules.
·the current evidence of the Applicant’s functional capacity does indicate the provision of SDA is not likely to be effective and beneficial where the Applicant demonstrates a significant level of functional independence in activities of daily living, as required by s 34 (1)(d) of the Act.
·the provision of SDA for the Applicant who does not satisfy the SDA eligibility under the rule 11 of the SDA is not NDIS support, as required by s 34 (1)(f) of the Act.
·the Respondent is not responsible for the provision of accommodation for people in need of housing assistance (i.e. routine tenancy support and ensuring appropriate housing is provided for people with disability) or homelessness-specific services, including homelessness prevention and outreach, or access to temporary or long-term housing for participants who are homeless or at risk of homelessness: r 7.20 of the Support Rules.
If the Tribunal was to find that the requested SDA met the section 34(1) criteria, the appropriate level and type of SDA would be:
·Building type: shared living (not sole occupancy) in an apartment, villa, duplex or townhouse for 2 or 3 SDA eligible residents.
·Design Standard: Improved Liveability (not Fully Accessible).
·Onsite overnight assistance: No.
With respect to Rule 12 of the SDA Rules, one of the eligibility criteria is that an applicant must have extremely reduced functional capacity in the domain of mobility, self-care or self-management and have a very high need for person-to-person supports in undertaking activities even with assistive technology, equipment or home modifications.
In this regard DZQW’s primary functional impairment is mobility.
The Agency contended, based on the evidence, that DZQW’s level of impairment is well below the ‘extreme’ range. Her level of impairment in mobility and self-care cannot meet the definition of ‘extreme’ if her need for person-to-person supports is not very high once she uses appropriate assistance technology.
It contended that with suitable assistive technology in a single-level home and being provided with assistance with activities of daily living and community participation, her need for person-to-person supports would significantly decrease.
It also contended that the available evidence did not suggest that DZQW has extremely reduced functional capacity in the areas of self-care and self-management and therefore does not have an extremely reduced functional capacity.
The Agency then addressed the Rule 13 criteria, namely, whether an applicant has very high support needs as this is a separate pathway to being eligible for SDA.
Rule 13(1)(b) sets out the eligibility criteria which requires that an applicant:
has a very high need for person-to-person supports, either immediately available or constant, for a significant part of the day and either
(i)there are limitations in the availability, capacity or capability of informal support; or
(ii)the participant is at risk or poses a risk to others and that risk could be mitigated by the provision of specialist disability accommodation
The Agency asserted that DZQW’s circumstances did not satisfy either of those criteria.
While the Agency acknowledged DZQW’s history of seizures, she has not had a generalised tonic-clonic seizure since November 2021, and those seizure occur rarely.
Her epilepsy management plan suggests that her epilepsy is effectively managed by the health system, and it is unclear why additional support in the form of SDA is required.
The Agency submitted:
Even if the Applicant does have a “very high need for person-to-person supports”, she does not meet the criteria in rule 13(1)(b)(i) or (ii).
The Applicant does not meet the criteria in rule 13(1)(b)(i). The Applicant is well-supported by her informal support network, namely her mother. While it is acknowledged that the Applicant’s mother has experienced carer exhaustion and burn-out, the burden would be significantly reduced by additional support with activities of daily living and support worker hours for social, civil and community participation support offered by the Agency. There is evidence that the Applicant does not currently utilise her whole allocation of assistance with daily living support due to “not wanting too many people in the home”.
The Applicant also does not meet the criteria in rule 13(1)(b)(ii). It is acknowledged that the Applicant does not want to and believes she “should not have to” live with others, and that doing so may “create more anxiety”. However, the evidence does not go so far as to establish that the applicant is at risk or poses a risk to others and that such a risk could be mitigated by SDA.
…
Even if the Applicant is found to have an “extreme functional impairment” or “very high support needs”, that alone does not qualify her for SDA. The Applicant must also meet the SDA needs requirement in rule 14.
This consideration requires comparing the benefits of SDA, when coupled with other supports, against the benefit provided by other supports alone. The relevant considerations include comparing which of the available options would:
a.better assist the participant to pursue the goals, objectives and aspirations in their plan;
b.        be more effective and beneficial for the participant in:
i.mitigating or alleviating the impact of the participant’s impairment upon functional capacity;
ii.         preventing the deterioration of the participant’s functional capacity;
iii.        improving the participant’s functional capacity;
iv.maintaining or promoting the participant’s ability to build capacity, including in the medium or long term; and
v.        maintain or promoting the participant's opportunities to develop skills.
c. be more effective in providing the participant with stability and continuity of support; and
d.represents better value for money having regard to:
i.whether combined SDA support and other supports would be likely to substantially improve life stage outcomes for and be of long-term benefit to the participant.
ii.the cost of providing the participant with supports needed to live in accommodation other than SDA, taking into account whether the supports may be shared with other participants, and limitations of the participant’s informal support network.
To consider the SDA needs requirement. It is necessary to identify:
a.        the other supports;
b.        the benefits that those other supports would provide to the participant;
c.the benefits that SDA would provide to a participant when combined with other supports; and
d.which option (when comparing (a) and (b) above) better meets the 414 criteria.
The Respondent considers that the “other supports” include:
a.increased support worker assistance to assist the Applicant to complete her self-care tasks, and.
b.assistive technology to increase her safety and independence with complete self-care and mobility tasks.
The Agency noted that the Harper Report (Agency’s IME) recommends the Applicant is provided with approximately 16 hours per week of support worker assistance to complete activities including community access, attending appointments, house cleaning, and domestic tasks such as shopping, meal preparation and laundry. It further noted that DZQW had declined the Respondent’s offer to provide an increased level of support worker assistance.
The Agency submitted that the other more appropriate comparable support was the items of assistive technology recommended in the Harper report.
It also noted that DZQW’s needs could be met by wheelchair accessible housing and that SDA is not the only optional available that would provide access level showering facilities to alleviate her impairments (Rule 14(b)(i) SDA Rules).
It also noted:
Rule 7.20 of the Support Rules provides that the Respondent is not responsible for the provision of accommodation for people in need of housing assistance (i.e. routine tenancy support and ensuring appropriate housing is provided for people with disability) or homelessness-specific services, including homelessness prevention and outreach, or access to temporary or long-term housing for participants who are homeless or at risk of homelessness. Accordingly, the Respondent contends it is not responsible for the provision of accommodation to the Applicant insofar as she claims to be in need of housing assistance.
In addition to the above, the Respondent further contends that the provision of SDA is generally inconsistent with the “value for money”, “effective and beneficial” and “a NDIS support” criteria in s 34(1)(c), (d) and (f) respectively.
Rules 16 and 17 – Building Type and Design Category

The Agency submitted that if the Tribunal was to find that DZQW is eligible for SDA, the next step is for the Tribunal to determine whether the following categories are reasonable and necessary and whether SDA should be provided as an in-kind support:
·SDA building type.
·SDA design category, and
·SDA location
The Agency submitted that in determining the appropriate SDA building type, the Tribunal must give consideration to the following factors set out in Rule 16 of the SDA rules, namely:
a.the participant’s preference;
b.features of a building type in relation to needs;
c.the appropriate support model;
d.the participant’s support needs; and
e.whether the building type represents value for money.
The Agency stated that it understood that DZQW seeks funding for a 1-resident 2-bedroom apartment because she feels that she ‘should not have to live with anyone … [and] group living creates more anxiety’. However, the Respondent contends there is insufficient evidence to support a finding that the Applicant’s support needs require her to live by herself. Having regard to the Applicant’s lower-level support needs, the Respondent stated that a shared model of SDA within a villa, duplex or townhouse represents value for money in comparison to other building types.
Pursuant to rule 17 of the SDA Rules, to determine the design category that is appropriate to support an eligible participant, the CEO must have regard to the specific needs of the eligible participant.
The Respondent contends the Applicant does not have a significant physical impairment necessitating the provision of fully accessible SDA design category. An improved liveability design category would provide the Applicant with the level of physical access she requires to mobilise with her four-wheeled walker or wheelchair, while meeting the “value for money” criteria in s 34(1)(c).
In relation to DZQW’s request for the provision of 23 hours per week 1:1 support worker support, the Agency stated that DZQW has the following existing funding in her current plan:
·$49,609.30 for 12 hours support worker assistance per week with activities of daily living.
·$64,656.80 for 20 hours support worker assistance per week for community access; and
·$1,784.00 for level one transport.
The Agency noted that DZQW’s OT recommends support be provided via a concierge model in the case of an emergency or some other unplanned support. It noted that that model cannot necessarily provide for immediately available support as this is only available in a Supported Independent Living (SIL) model where housing and supports are shared.
The Agency submitted that there is insufficient evidence that the requested support represents value for money in that the costs of the support are reasonable to both the benefits achieved and the costs of alternative support, as required by s 34(1)(c) of the Act.
It further submitted that there is also insufficient evidence that the requested support will be, or is likely to be, effective and beneficial for the Applicant, having regard to current good practice, as required by s 34(1)(d) of the Act.
Having regard to the above, the Respondent’s position is that the following level of funding represents the reasonable and necessary level of support:
a.        14 hours per week of 1:1 support for assistance with daily living;
b.        7 hours per week assistance with personal domestic activities; and
c.        20 hours per week social and community access.
d.        $900.00 for low-cost assistive technology.
Arising out of the above submissions, the Agency submitted that the requested supports are not reasonable and necessary under s 34(1) of the Act, and the correct or preferable decision is to vary the decision under review to include the reasonable and necessary supports listed in the preceding paragraph.
Having outlined the parties’ respective positions, I shall now refer to the relevant legislation and related documents.
LEGISLATIVE FRAMEWORK
The NDIS has been in operation for over ten years. It was at the time of its passage into law 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.[2] 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:
[2] 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:
(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 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 s 9 of the NDIS Act as including “general supports”, being those defined in ss 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 ss 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 s 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.
Specialist Disability Accommodation (SDA) Rules
The SDA Rules cover important aspects of the provision of SDA including:
·The eligibility criteria;
·The design type and location of SDA;
·The funding of SDA; and
·Enrolment of dwellings as SDA.
Eligibility criteria
The eligibility criteria are listed in Rules 11 to 14 of the SDA Rules:
11. Eligibility to receive support for specialist disability accommodation
A participant is eligible to receive support for specialist disability accommodation under the National Disability Insurance Scheme if the CEO is satisfied that:
(a)the participant:
(i)has an extreme functional impairment (see section 12); or
(ii)has very high support needs (see section 13); and
(b)the participant meets the SDA needs requirement (see section 14).
12. When a participant has an extreme functional impairment
(1)       A participant has an extreme functional impairment if:
(a)the impairment results in extremely reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i)        mobility;
(ii)       self care;
(iii)      self management; and
(b)the participant has a very high need for person to person supports in undertaking the activity even with assistive technology, equipment or home modifications.
(2)For the purposes of assessing whether a participant has an extreme functional impairment, the CEO may have regard to:
(a)any assessment or examination conducted in relation to the participant, including any assessment or examination requested by the CEO under paragraph 36(2)(b) or 50(2)(b) of the Act; and
(b)the daily support requirements of the participant; and
(c)any assessment tool specified by the CEO for the purposes of this paragraph; and
(d)any other matters that the CEO considers appropriate.
13. When a participant has very high support needs
(1)       A participant has very high support needs if:
(a)the participant has lived in specialist disability accommodation for extended periods and living in that accommodation has impacted on the capacity of the participant to transition to alternative living arrangements and support; or
(b)the participant has a very high need for person to person supports, either immediately available or constant, for a significant part of the day and either:
(i)there are limitations in the availability, capacity or capability of the participant’s informal support network or risks to its sustainability; or
(ii)the participant is at risk or poses a risk to others, and that risk could be mitigated by the provision of specialist disability accommodation, having regard to the participant’s response to risk and the interaction of the participant with the environment.
(2)For the purposes of assessing whether a participant has very high support needs, the CEO may have regard to:
(a)any assessment or examination conducted in relation to the participant, including any assessment or examination requested by the CEO under paragraph 36(2)(b) or 50(2)(b) of the Act; and
(b)       the daily support requirements of the participant; and
(c) any assessment tool specified by the CEO for the purposes of this paragraph; and
(d)       any other matters that the CEO considers appropriate.
14. When a participant meets the SDA needs requirement
(1)A participant meets the SDA needs requirement if, when compared to other supports alone, combined specialist disability accommodation and other supports would:
(a)better assist the participant to pursue the goals, objectives and aspirations set out in the participant’s statement of goals and aspirations; and
(b)be more effective and beneficial, where possible, in:
(i)mitigating or alleviating the impact of the participant’s impairment upon the participant’s functional capacity; and
(ii)preventing the deterioration of the participant’s functional capacity; and
(iii)improving the participant’s functional capacity; and
(iv)maintaining or promoting the participant’s ability to build capacity, including in the medium or long term; and
(v)maintaining or promoting the participant’s opportunities to develop skills; and
(c)if the participant has very high supports needs—be more effective and beneficial, where possible, in:
(i)reducing the participant’s future needs for supports which might be required due to inappropriate accommodation; and
(ii)assisting the participant to pursue goals related to life opportunities and life transitions; and
(d)if the participant has an extreme functional impairment—be more effective in providing the participant with stability and continuity of support; and
(e)represent better value for money.
(2)For the purposes of paragraph (1)(e), regard must be had to the following matters if the participant has very high support needs:
(a)whether combined specialist disability accommodation support and other supports would be likely to substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(b)the cost of providing the participant with supports needed to live in accommodation other than specialist disability accommodation, taking into account:
(i)whether those supports may be shared with other participants; and
(ii)limitations of the participant’s informal support network.
Recent amendments to the Act

I note that the proposed SDA provider, Insitu Housing, provided in its conditional offer dated 5 September 2022, an anticipated cost of between $65,000 and $75,000 per resident in the 10-unit facility. It does not appear that a more updated estimate has been provided, however, I can safely assume a current quotation would be more than this quoted amount.
I consider that regardless of where she is living, DZQW will require overnight support unless the monitoring of her seizures is continued to be provided informally; however, given her mother’s own health concerns, and the family and other commitments of her siblings, I discount this as a viable option.
In any event the provision of such consistent overnight support funded through the Agency is likely to exceed the amount specified by Insitu Housing.
I am also satisfied that given the opportunity of a fully accessible property DZQW will be able to follow through on her desire for greater independence including cooking and preparing meals and have greater opportunities for social interaction.
Clearly, she will require some domestic assistance, however, some of that support may be provided by Insitu Housing as well as in a reduced form by her family when available.
232. It is evident that DZQW wishes to live as independently as possible and that she makes every effort to limit the assistance that she requires. Concierge services will avoid lengthy delays in receiving assistance when she may require it, including monitoring and responding to her seizure alarm, providing post-seizure care and assistance in the event of a fall. This ready availability of support will avoid adverse health outcomes and the associated expenses. It will also improve her lived experience, preserve her dignity and be of long-term benefit to her.
The criteria under Rule 14(1)(e) of the SDA Rules is therefore satisfied.
Does DZQW meet the s 34(1) criteria
In this regard, the Agency in its final submission contended:
·There was insufficient evidence that SDA will improve DZQW’s economic and social participation, and her current environment can provide this as required under s 34(1)(b).
·That the cost of SDA is substantial, and any benefit DZQW may derive from that support, should reflect that cost in accordance with s 34(1)(c).
·Similar objections could be raised under s 34(1)(d) to those raised by the Agency under Rule 14(1)(1)(b), namely, whether it is effective and beneficial.
·Referring to both s 34(1)(f) and the Transitional Rules, the Agency submitted that the provision of housing, properly considered. is a day-to-day expense and therefore is not a NDIS support.
I will address each of those objections separately, noting that apart from its submission on s 34(1)(b), the Agency merely made the assertion without specific reference to the evidence before me.
Will the provision of SDA assist DZQW to undertake activities so as to facilitate her social and economic participation?
I believe I have largely addressed this in my consideration of Rule 14(1) (a), (b) and (c) and Rule 14(2) of the SDA Rules and refer the reader to paragraphs 222 to 228, and 231 to 235. in this decision. I am satisfied that there is sufficient evidence that established the benefits to her ability to engage in social and economic participation.
Does SDA represent value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support?
It is evident that SDA represents a significant expense, however, that must be weighed against both the anticipated benefits and potential over time for the reduced need for other funded supports.
However, as I have addressed in significant detail in my assessment of Rule 14 (1)(e) in paragraphs 271 to 28, I am satisfied that SDA does represent value for money.
This criterion is satisfied.
Will SDA be, or is likely to be, effective and beneficial for DZQW, having regard to current good practice?
As with the Agency’s submission concerning improved social and economic participation, I believe I have largely addressed this in my consideration of Rule 14(1)(b) of the SDA Rules and refer the reader to paragraphs 257 to 261 in this decision. I am satisfied SDA will be effective and beneficial for DZQW.
Is DZQW’s request for SDA a NDIS support in accordance with s 34(1)(f) and the Transitional Rules?
As I noted above, the Agency’s submission was that in making my decision, I should have regard to s 34(1)(f) of the NDIS act and the Transitional Rules however provided little guidance how I should approach this question.
In this regard I believe the context of this application is important.
It goes without saying that in many contexts, a NDIS participant who does not own their own home or live in a family home, is generally expected to meet their own housing need either in the private rental market or via social or community housing.
However, the NDIS scheme clearly is responsible for the funding of Supported Independent Living (SIL) accommodation, short term accommodation and SDA.
Each accommodation category has its own eligibility and assessment criteria.
Similarly, as part of my consideration I have taken account of other housing options open to DZQW.
Also, I am required to consider and have done so, each of the multiple and rigorous eligibility criteria for DZQW to be found eligible for SDA.
SDA is clearly identified as a NDIS support and, as such, I do not consider s 34(1)(f) and the Transitional Rules have any relevance here.
I have now found that DZQW meets all the relevant eligibility criteria to be approved for SDA. I will now need to address the other criteria, including property type, number of bedrooms and location. However, before I do, I will need to address DZQW’s other request, namely, for 23 hours per week of support worker assistance at a 1:1 ratio in addition to the concierge support.
Support 2: 23 hours per week 1:1 support with concierge support
I note that the Agency in its SFIC contended that the requested support was not reasonable and necessary however also indicated that it considered the following funding would be sufficient:
a. 14 hours per week of 1:1 support for assistance with daily living.
b. 7 hours per week assistance with personal domestic activities; and
c. 20 hours per week social and community access.
I also note that there is not a great deal of evidence addressing this particular requested support as the parties’ focus has largely been on DZQW’s eligibility for SDA.
In any event I am firmly of the view that what may be appropriate support hours in the categories listed above should be the subject of a detailed review by the Agency with DZQW’s allied health professionals and others providing updated evidence. This is particularly so as it is clear upon relocating to SDA, her existing informal supports will also be reduced and also what supports provided by the SDA provider will need to be clearly delineated.
However, while that review is being conducted I will, in the interim, approve the support hours put forward by the Agency namely:
a. 14 hours per week of 1:1 support for assistance with daily living.
b. 7 hours per week assistance with personal domestic activities; and
c. 20 hours per week social and community access.
I will therefore vary the original and review decision but direct the Agency to commence an urgent a review of this aspect of DZQW’s supports.
Funding for Specialised Disability Accommodation:
Design Category:
Building Type:
Location:
The Agency in its SFIC contended that if the Tribunal finds that DZQW is eligible for SDA, that the following was relevant in determining the type and what model was most appropriate for her:
·There is insufficient evidence to support a finding that the Applicant’s support needs require her to live by herself.
·Having regard to the Applicant’s lower-level support needs, a shared model of SDA within a villa, duplex or townhouse represents value for money in comparison to other building types.
·DZQW does not have a significant physical impairment necessitating the provision of fully accessible SDA design category. An improved liveability design category would provide the Applicant with the level of physical access she requires to mobilise with her four-wheeled walker or wheelchair, while meeting the “value for money” criteria in s 34(1)(c).
Addressing these contentions, I disagree that there is insufficient evidence to establish her request to live by herself.
In this regard, I have taken account of the report dated 28 July 2022 from Cassandra Barrett, Psychologist who noted that the symptoms of DZQW’s psychosocial conditions worsened due to her proximity and level of contact with other residents when she was previously living in supported housing.[33]
[33] JTB 47.
Ms Steph Sillett, Occupational Therapist, in her report dated 30 January 2023 noted that group living was not a suitable model from multiple perspectives and was likely to cause a decrease in her function and increase her support needs, adversely affecting her opportunities to increase her independent living skills and building her capacity.[34]
[34] JTB 126.
Dr Sales in his response letter dated 27 November 2023, also advised that shared accommodation would not be suitable for DZQW.[35]
[35] JTB 300.
Having had regard to that evidence I am satisfied that DZQW needs to live in her own accommodation and that a shared model of care is not appropriate.
In terms of whether the fully accessible category or an improved liveability category is best suited to her requirements, I consider that the Agency’s assertion that DZQW does not have a significant physical impairment is not correct.
When assessing the appropriate building type, it is appropriate that I consider her longer-term needs and the likely trajectory of her level of functional capacity.
Several of the Occupational Therapists have indicated that DZQW is largely reliant upon her motorised wheelchair and requires a fully accessible property that will accommodate its use in all areas.
In this regard I also note that DZQW’s mobility issues are likely to worsen over time. There is reference in the material to the possibility that she may require an amputation in the event a trial of a crow boot proves unsuccessful. I also note that DZQW has already had multiple operations on her right ankle and further accept that her conditions such as osteoporosis are progressive and therefore likely to worsen over time.[36]
[36] Ms Bodycott’s report, JTB 32.
Taking account of these factors, I consider that DZQW requires an apartment style dwelling in the fully accessible category.
Finally, the Agency disputes that DZQW requires a two-bedroom property and that a one-bedroom property will meet her needs.
Again, I respectfully disagree. It is evident that a second bedroom is necessary when a support worker or concierge support is required to remain overnight with her in the event of a seizure and its aftermath. The second bedroom would also be required for storage of her assistive technology which I consider reasonable.
I also consider that the location of any SDA will need to be in her local area including the Newcastle area to ensure she lives in close proximity to her mother and sisters who will, I’m sure, continue to provide informal support for her within their capacity to do so.
Conclusion
I am therefore satisfied that DZQW meets the eligibility requirements under the SDA Rules and the requirements of s 34(1) of the NDIS Act.
The funding for the following SDA is a ‘reasonable and necessary’ support for the purposes of ss 34(1) of the NDIS Act should be included in the Applicant’s SOPS:
·SDA Building Type: two-bedroom, apartment, one resident, with unplanned on-site shared support in an SDA.
·Design Category: Fully accessible.
As noted above, I have approved the following weekly support worker as an interim measure and direct the Agency to conduct an urgent assessment of what support hours may be required once she is residing in SDA:
a. 14 hours per week of 1:1 support for assistance with daily living.
b. 7 hours per week assistance with personal domestic activities; and
c. 20 hours per week social and community access.
Decision
Pursuant to ss 105(c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with the orders that:
1.within 28 days of this decision DZQW’s statement of participant supports specifies the following supports:
(i)        Specialist Disability Accommodation
·     Building Type: two-bedroom apartment, one resident, with unplanned onsite shared support in an SDA
·     Design Category: Fully accessible
·     Location: Newcastle, New South Wales
(ii)       41 hours per week for support worker assistance
2.that the Agency conduct an urgent review of what support worker hours may be required now that the Applicant has been approved for SDA.
3.all other supports in DZQW’s existing statement of participant supports are to be replicated pro-rata from the date of this decision until the reassessment date.

I certify that the preceding 272
(two hundred and seventy-three)
paragraphs are a true copy of the
reasons for the decision herein
of General Member A. Williams

…..........................[sgd]...........................................
Associate
Dated: 11 August 2025

Hearing:

16 and 20 June 2025

Solicitor for the Applicant:

Self-represented

Counsel for the Respondent:

Solicitor for the Respondent:

Ms Hannah Robinson

Ms Jane Thompson of Maddocks Lawyers

[i] NDIS (SDA) Rules r 13(1)(b).