FDGS and CEO, National Disability Insurance Agency (NDIS)
[2025] ARTA 1116
•25 July 2025
FDGS and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1116 (25 July 2025)
Applicant/s: FDGS
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2023/7125
Tribunal:General Member D Heron
Place:Brisbane
Date:25 July 2025
Decision:Pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is affirmed.
................[SGD]..................
General Member D HeronCatchwords
NATIONAL DISABILITY INSURANCE SCHEME –- reasonable and necessary supports – consideration of s 34 National Disability Insurance Scheme Act 2013 (Cth) – occupational therapy – consumables – transport – psychology – speech therapy – hearing aids – short term accommodation – best interest of child – autism level 2 – impairment.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth)Cases
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Secondary Materials
NDIS – Operational Guidelines - Reasonable and Necessary supports as at 28 March 2025
NDIS – Operational Guidelines – Short term accommodationNDIS – Operational Guidelines - Transport
Statement of Reasons
DECISION UNDER REVIEW
FDGS (the Applicant) is a 7-year-old participant in the National Disability Insurance Scheme (the NDIS). He is represented by his mother who is also his NDIS nominee.
He has diagnoses of Autism Spectrum Disorder Level 2, Attention Deficit Hyperactivity Disorder, Oppositional Behaviour and Selective Mutism.
FDGS by way of his mother, seeks external review of an internal review decision made on 31 August 2023 by the National Disability Insurance Agency (the Respondent). This internal review decision under s 100(6) affirmed the earlier decision under s 33(2) to approve a Statement of Participant Supports.
FDGS applied to the Administrative Appeals Tribunal (AAT) for review pursuant to section 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) on 31 August 2023. The AAT was abolished on 13 October 2024 and the Administrative Review Tribunal (the Tribunal) began on the 14 October 2024. By virtue of the transitional arrangements, FDGS’ matter was automatically transferred to the Tribunal. The Tribunal has the power to conduct the review under s 105 of the ART Act, to affirm, vary or make a new decision about the supports that should or should not be included.
At the hearing held on 7 July 2025 via Microsoft Teams, FDGS was not legally represented and was advocated for by his mother. The Respondent was represented by Mr N Swan, of Counsel instructed by Ms J Thomson, of Moray & Agnew. FDGS mother gave oral evidence at the hearing, with no other witnesses called to provide oral evidence.
At the hearing the Joint Tender Bundle (the JTB) was admitted into evidence marked as Exhibit 1 along with the NDIS current plan usage as of 7 July 2025, marked as Exhibit 2. I also admitted and marked an email dated 7 July 2025 from FDGS’ mother with 5 attachments as Exhibit 3, the Disability Inclusion Act 2014 (NSW) Exhibit 4 and the NDIS webpage titled ‘Education – what we are responsible for’ was marked Exhibit 5.
BACKGROUND
7.Subsequent to the Applicant seeking review by the Tribunal, two further plans were implemented for FDGS dated 23 December 2024 - 23 June 2025, and 11 March 2025 - 10 March 2026.
On 12 February 2025, the Tribunal remitted the matter to the Respondent for reconsideration, following agreement between the parties. As a result of this agreement, the following funding was included in the current plan beginning 11 March 2025.
(i)6 hours for a continence assessment;
(ii)6 hours for a speech therapy assessment;
(iii)50 hours for occupational therapy;
(iv)26 hours for a therapy assistant;
(v)10 hours for a psychology assessment;
(vi)30 hours for a developmental educator;
(vii)10 hours per week for support worker assistance with daily living,
weekday daytime rate;
(viii)4 hours on Saturday for social and community participation for 52
weeks;
(ix)45 hours for Specialist Behaviour Support a year and 20 hours for a Positive Behaviour Support plan and training of support workers a year; and
(x)36 hours for support coordination.
The supports that remain in issue before me are as follows:
i.Consumables funding for low-cost assistive technology $3,047 and other educational supports $2,099;
ii.Transport funding for 10 hours a week;
iii.Short-term accommodation 15 nights a year;
iv.Hearing aids and accessories $7,463.99;
v.Speech pathologist therapy of 50 hours per year;
vi.Psychology sessions of 50 hours per year; and
vii.Transition to school funding of 11.5 hours per day 5 days a week for 6 months, then stepping down to 2 hours a day 5 days a week.
THE LEGAL FRAMEWORK
The objects of the NDIS Act are set out in section 3. As well as giving effect to Australia's obligations under the UN Convention on the Rights of Persons with Disabilities, these include:
·supporting the independence and social and economic participation of people with disability;
·providing reasonable and necessary supports for participants; and
·enabling people with disability to exercise choice and control in pursuit of their goals and in the planning and delivery of their supports.[1]
[1] National Disability Insurance Scheme Act 2013 (Cth), s 3(1) (c) – (e).
While the objects clause may not be used to override the otherwise clear meaning of an operative provision, it can be used to give practical content to common terms that are used and facilitate understanding of the intended construction and operation of the Act.[2]
[2] National Disability Insurance Agency v WRMF [2020] FCAFC 79, 145.
Section 4 provides the general principles guiding actions under the NDIS Act and relevantly states:
Section 4 - General principles guiding actions under this Act
(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.Section 31 of the NDIS Act sets out several principles that apply to the development of a NDIS plan for a participant. The purpose of the NDIS plan is to state the supports funded and explain how the funds provided for the participant’s supports are to be managed:
31 Principles relating to plans
The preparation, variation, reassessment and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable:
(a) be individualised; and
(b) be directed by the participant; and
(c)where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(ca)where relevant, recognise and respect the relationship between participants and their families and carers; and
(d)strengthen and build capacity of families and carers to support participants who are children; and
(da) if the participant and the participant’s carer agree – strengthen and build the capacity of families and carers to support the participant in adult life; and
(e)consider the availability to the participant of informal support and other support services generally available to any person in the community; and
(f)support communities to respond to the individual goals and needs of participants; and
(g)be underpinned by the right of the participant to exercise control over his or her own life; and
(h)advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i) maximise the choice and independence of the participant; and
(j)facilitate tailored and flexible responses to the individual goals and needs of the participant; and
(k)provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.
A participant’s plan does not take effect until the Statement of Participants Supports (SOPS) forming part of the plan has been approved by the CEO under s 33(2) of the NDIS Act. Section 33(5) sets out the requirements for the decision-maker in approving a statement of participant supports as follows:
33 Requirements for CEO in approving statement of participant supports
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.
For supports to be funded by the NDIS, they must be reasonable and necessary under section 34 of the NDIS Act, which is cumulative, therefore all the criteria must be satisfied. If the Tribunal is not positively satisfied that all of the criteria in s 34(1) or the Rules is met in relation to a requested support, then the Tribunal must find that that support is not a reasonable and necessary support for the purposes of the NDIS Act.
As a further consideration is section 5(f) of the NDIS Act which contains the general principle guiding the actions of people who may do acts or things on behalf of others under the scheme. It provides as follows:
5General principles guiding actions of people who may do acts or things on behalf of others
...
(f) if the person with disability is a child--the best interests of the child are paramount, and full consideration should be given to the need to:
(i) protect the child from harm; and
(ii) promote the child's development; and
(iii) strengthen, preserve and promote positive relationships between the child and the child's parents, family members and other people who are significant in the life of the child.
The relevant rules in respect of this review are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Supports Rules); National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (NDIS Supports Transitional Rules); and the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (NDIS Miscellaneous Transitional Rules).
Rules 3 and 5 of the Supports Rules are important considerations expanding upon the section 34 criteria, specifically to subsections 34(1)(c) - (e) of the NDIS Act. Rule 3 relevantly provides:
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:
(i) the comparative cost of purchasing or leasing the equipment or modifications; and
(ii) whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(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).
Effective and beneficial and current good practice
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary, seek, expert opinion.
Reasonable family, carer, and other support
3.4 In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:
(b) for other participants:
(i) the extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community; and
(ii) the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:
(A) the age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and
(B) the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and
(C) the extent of any risks to the long-term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and
(iii) the extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes;
(c) for all participants—the desirability of supporting and developing the potential contributions of in formal supports and networks within their communities.
Rule 3.5 clarifies the NDIS’ role in relation to other service systems. Schedule 1 to the Support Rules sets out the matters for the CEO to have regard to in considering whether supports are most appropriately funded or provided through the NDIS. Rules of particular relevance in Schedule 1 to the Support Rules outline the considerations relating to whether supports are most appropriately funded through the NDIS. Of relevance are the following sub-rules:
7.1 The Act limits the supports that can be provided or funded under the NDIS to supports that are not more appropriately funded or provided through other service systems, for example as part of a universal services obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
7.2 The considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by the NDIS or another service system………
7.13 The NDIS will be responsible for supports that a student requires that are associated with the functional impact of the student’s disability on their activities of daily living (that is, those not primarily relating to education or training attainment), such as personal care and support, transport to and from school and specialist supports for transition from school education to further education, training or employment that are required because of the student's disability. Any supports funded by the NDIS will recognise the operational requirements and educational objectives of schools.
7.14 The NDIS will not be responsible for personalising either learning or supports for students that primarily relate to their educational attainment (including teaching, learning assistance and aids, school building modifications and transport between school activities) …
Rule 5 of the Support Rules provides the general criterial for supports as follows:
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.
Rule 7 of the Miscellaneous Transitional Rules requires that a decision-maker also be satisfied the support is most appropriately funded or provided through the NDIS, and not more appropriately funded or provided through other systems. In effect, this means that decision-makers are, until new rules are made, applying two versions of section 34(1)(f), as it was before the amendments, and the new version as amended.
In October 2024, the NDIS Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) was passed and made a number of changes, including to s 34 of the NDIS Act by inserting the wording at s 34(1)(f) requiring that a support be an NDIS Support and including a definition of that term in s 10 of the NDIS Act, with reference to the Transitional Rules. Schedule 2 lists supports, which are taken not to be NDIS supports, for the purpose of s 34(1)(f).
The NDIS Operational Guidelines also assist in making decisions in accordance with the NDIS Act. Operational guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so. I will refer to these Operational Guidelines where relevant.[3]
[3] Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
It is important I note that the term ‘reasonable and necessary’ is not defined in the NDIS Act. In WRMF the court observed that the phrase ‘connotes supports which meet a threshold which justifies, by reference to the context, objects and guiding principles of the Act and the facts of the case, the expenditure of public funds for that support, for a particular participant’.[4]
[4] National Disability Insurance Agency v WRMF [2020] FCAFC 79, 151.
I must consider the general principles of the Act contained in section 4 in conformity with section 34(1) and the Rules, noting that even if a support is an NDIS Support, should one of the requirements in ss 34(1)(aa)-(f) not be positively satisfied, then the requested support cannot be considered reasonable and necessary to be funded by the NDIS.
EVIDENCE
The Tribunal was provided with the following documentary evidence in the JTB from FDGS’ treating practitioners:
a)Letter, Dr K, Paediatrician dated 19 May 2022
b)Letter, Dr F, GP dated 26 April 2023
c)Report, Dr A, Psychologist dated 3 December 2021
d)Report, Ms R, Audiologist dated 4 September 2023
e)Report, Ms H, Occupational Therapist dated 13 May 2024
f)Response to Targeted Questions, Ms H, Occupational Therapist undated
g)Email, Ms B, Continence Clinical Nurse dated 12 November 2024
h)Letter, Dr Ng, Paediatrician dated 14 December 2024
i)Report, Ms C, Occupational Therapist and Keyworker dated 23 April 2025
j)Letter, Ms SW, Social Worker undated.
I have considered all the written evidence tendered along with the oral evidence provided at the hearing and I will refer to the evidence that is directly relevant to my determination in this matter.
Evidence about FDGS
FDGS is 7 years old and lives with his Mum and his older sibling. He is currently enrolled in year two at a local mainstream primary school.
His communication skills are limited, and he often requires prompting to communicate with others. Due to his Selective Mutism, he rarely initiates conversations and has difficulty expressing himself verbally. He will typically remain silent and not verbally communicate when he is in circumstances or around people that he is not comfortable engaging with.
He struggles with self-regulation and is easily overwhelmed by everyday stimuli. His struggles with regulation can lead to inappropriate, aggressive behaviours as well as social withdrawal. He is unable to undertake basic self-care tasks typical of a 7-year-old child, requiring substantial physical assistance and active prompting with his self-care tasks.
He struggles with impulsivity and has a generalised lack of personal safety awareness. He engages in avoidance behaviours and school refusal, attending approximately 3 out of every 5 school days per week.
Evidence of FDGS’ mother
FDGS mother gave oral evidence at the hearing as follows:
·FDGS has multiple disabilities as well as autism, due to his complex needs he needs flexible supports.
·His current plan has some supports that are inappropriate and some of the funding is in places that are unusable, that is why it hasn’t been used.
·He needs transport funding so therapists can visit him in his safe space, it’s more effective to provide transport funding, or directly for FDGS as it is more cost-effective .
·Currently if FDGS won’t go in the car to undertake appointment, he will still be charged the full fee as the cancellation rate applies.
·He needs to have a speech therapist who is familiar with mutism, and that requires a lot of travel, as he needs face to face therapy.
·Because of where FDGS lives, this is difficult and therefore have not undertaken the speech pathology assessment as yet.
·NDIS keep insisting on speech therapy, but he really would make more ground with regular ongoing psychology.
·FDGS undertook 10 hours with a psychologist and this practitioner was unable to provide an assessment report because there wasn’t enough funding for her to finish the report.
·Psychologist ended services with FDGS when she heard there was no ongoing psychology funding in his plan.
·His OT has recommended FDGS have ongoing psychology funded, she has a good relationship with him and understands his needs.
·FDGS underwent a continence assessment, and quotes have been given to the Agency. Will not put him through another continence assessment.
·The ‘further trials’ suggested in this continence report is the Agency’s interpretation to get out of paying for essential supports.
·At school FDGS is currently in year two, however he is currently undertaking kindergarten level work.
·He was homeschooled since the second half of kindergarten 2023 and he went back to school in 2024 for the second half of year one.
·During the homeschooling, he had a tutor, and she suggested the hearing aids.
·Hasn’t used much of the core funding as FDGS may need to use it for school transitioning.
·Support workers have been working with FDGS since the beginning of the current plan in March 2025.
·He has 4 support workers assisting him, usage seems low as haven’t received all their invoices from March 2025 to current.
·Due to living in a rural area with limited access to behaviour support, that’s why FDGS needs travel funding to access supports further away.
·FDGS doesn’t need help with designing behaviour strategies, needs help with implementing them through psychology.
·Would be better if this behaviour support funding was put into psychology where he can use it.
·No need for a support coordinator as FDGS’ plan is self-managed and it’s not a matter of not knowing how to find or engage services.
FDGS’ mother also supplied a Carer Impact Statement dated 27 September 2024.
Applicant’s Plan Goals
I have considered FDGS’ current plan goals pursuant to section 33(5)(a) of the NDIS Act which are as follows:
·Improve his language and social communication skills.
·Develop his learning and concentration skills.
·Use appropriate communication skills across all environments.
·Identify and respond to his emotions in an appropriate manner.
·To become more independent with his self-care skills.
·Improve his fine and gross motor skills.
The current plan
The current plan funding total is $90,764.40 for 12 months, with self-managed funding as follows:
Core
Consumables
$300
Assistance with Daily Life
$35,131.20
Social and Community Participation
$19,774.56
Capacity Building
Improved Daily Living Skills
$17,459.16
Behaviour Support
$14,494.44
Support Coordination
$3,605.04
The current plan began 11 March 2025 and at the commencement of the hearing on 7 July 2025 had a total of 7% plan utilisation as follows:[5]
[5] Exhibit 2 – Plan Usage dated 7 July 2025.
Category
Percentage used
Core
2%
Improved Daily Living Skills
33%
Behaviour Support
0%
Support Coordination
0%
The Respondent’s Position
The Respondent contends that the requested supports are not reasonable and necessary, and that the Tribunal should affirm the decision under review not to fund them.
CONSIDERATION
1. Consumables
Under consumables funding FDGS seeks $3,047 low-cost assistive technology such as continence aids, and $2,099 for other educational supports such as blocks, pencils, overlays for reading, whiteboard markers, and calendars.
FDGS’ mother explained that some consumables are educational because the list was written a long time ago.[6] There is scarce evidence supporting these consumables being recommended for FDGS to a level of particularity to satisfy me of its value for money and effective and beneficial nature. I note as these consumables relate to educational matters, supports of that nature are not NDIS supports as defined in the transitional rules item 16 of Schedule 2. Item 16 states that education, such as “personalised learning or supports for students that primarily relate to their education attainment”, “aids and equipment for educational purposes”, “textbook and teaching aids”, and “educational supports associated with home schooling” are not NDIS supports. During the hearing FDGS mother agreed that she has now funded many of these supports herself.[7]
[6] Transcript, 2:03:29.
[7] Transcript, 2:03:26.
In the current plan there are six hours for a continence assessment for FDGS. During the hearing his mother explained that she has chosen not to undertake this assessment describing that she was not putting him through this again.[8] The Respondent then queried why she agreed to the inclusion of this funding by the Agency via remittal if she was not going to utilise it. Her explanation was that she should be able to use the funding for other things.[9]
[8] Transcript, 1:20:20.
[9] Transcript, 1:23:11.
Ms B is the continence nurse who undertook the assessment with FDGS in November 2024. Ms B’s report is currently over eight months old for a child who is currently 7 years old. The Respondent’s contention is at this age, developmental changes occur relatively quickly. This was put to FDGS’ mother who explained that it shows the Agency did not read Ms B’s report and is saying FDGS’ needs further trials as ‘just your interpretation to try and get out of paying’.[10]
[10] Transcript; 1:22:06.
On the evidence I agree with the Respondent that an updated assessment is needed to understand FDGS’ current needs and what is going to be effective and beneficial for him ongoing. My view is consistent with the report of Ms B as she states that she envisages further trials being undertaken to solidify any recommendation for his ongoing continence funding needs.[11] FDGS’ mother disagrees stating no further trials or assessments are required.
[11] JTB, A24, 212.
On totality of the evidence regarding the consumable funding requests for both the $3,047 low-cost assistive technology and $2,099 for other educational supports I am not satisfied that these requests meet s 34(1)(aa), (c) or (d) of the Act. As s 34 is cumulative it is not necessary for me to consider further criteria in relation to the funding of the consumables.
2. Transport
FDGS seeks funding for transport totalling 10 hours per week for 52 weeks a year. His mother explains in her Carer Impact Statement that she requires transport funding as:
[FDGS] has unbuckled his seatbelt and escaped a Houdini strap and thrown things at me whilst driving… I am on constant high alert. There is no way I can attend appointments without another trained person to help.[12]
[12] JTB, A23, 203.
The relevant NDIS Operational Guidelines state:
We consider what support is reasonable to expect parents to provide at your age. It’s normal for parents to provide substantial care and support for children. We consider that it’s usual for parents to provide almost all the care and support that young children need.
For example, it’s reasonable to expect parents or other family members to provide transport to and from their child’s after-school activities. Of course, the amount of care and support for a child without a disability would typically reduce as they get older.
For children under 18, we consider:
·if your needs are substantially greater because of your disability, compared to other children the same age. This means you need much more disability support
·any risks to the wellbeing of people providing informal support to you
·if including funding for the support will help build your skills and capacity in the future or reduce any risks to you.
For example, we consider any health, safety or other impacts resulting from what’s involved in meeting your disability support needs.[13]
[13] National Disability Insurance Agency, Is the support something we would expect your informal supports to provide? (Web Page, 23 July 2025). <Is the support something we would expect your informal supports to provide? | NDIS>
Turning to Schedule 2 of the Transitional Rules this support cannot be funded as it is not an “NDIS support” under s 34(1)(f). Item 6(g) of the Transitional Rules provides that “transport for children as part of their reasonable care and support provided by families or carers” is a day-to-day living cost, and not an “NDIS support”.
FDGS’ mother explained that under the current plan she is using support worker assistance for FDGS to be able to undertake safe travel in the car and for FDGS to attend community events. On this evidence, this funding for support workers accomplishes her intended goal for supporting FDGS to participate in the community and travel safely.
FDGS’ mother explained that providing transport funding direct to FDGS was necessary as it is more cost effective rather than to provide transport funding because otherwise, we will be throwing money away.[14]
[14] Transcript, 26:57.
I accept the Respondent’s submission that this request for transport funding does not satisfy s 34(1)(e) because it is reasonable to expect families and carers to provide for the transport needs of a 7-year-old to their activities and appointments. On the current evidence I am not satisfied that s 34(1)(e) and (f) are met in relation to funding 10 hours a week of transport funding.
I am not satisfied s34(1)(e) is met because I am not satisfied the requested support is reasonable and necessary when taking into account what is reasonable to expect families and carers to provide. Further I am not satisfied s34(1)(f) is met because, having regard to Item 6(g) of Schedule 2 of the Transitional Rules I am not satisfied the requested support is an NDIS support.
3. Short term accommodation
FDGS is seeking funding for 15 nights of short-term accommodation (STA) per year. This funding is being sought for the accommodation and care of FDGS when his mother is in hospital for the administration of her own medical treatment: The evidence in support of this funding request is the undated letter from Social Worker, Ms SW[15], and a letter from Dr M who is FDGS’ mother’s specialist dated 26 April 2024.[16]
[15] JTB, A36, 404.
[16] JTB, A21, 177.
STA is defined in the Operational Guidelines as:
Short Term Accommodation, including respite, is support for when you need to live out of home for a short period. Short Term Accommodation funding can be used for respite to support you and your carers. This gives your carers a short break from their caring role.
Sometimes a short stay away from home:
·gives you the chance to try new things
·can be a place to make new friends or develop new skills
·may help to maintain your current living situation by giving your informal supports a break.[17]
[17] National Disability Insurance Agency, What is Short Term Accommodation, including respite? (Web Page, 23 July 2025). <What is Short Term Accommodation, including respite? | NDIS>
Under rule 5.1(b) of the NDIS (Supports for Participants) Rules 2013 the funding of a support arises from the participant’s disability. The circumstances for the request for short term accommodation arise from his mother being an in-patient in hospital.
The Respondent notes in their Statement of Facts, Issues and Contentions that while it is acknowledged that this will be difficult for the family, accommodations would need to be made in the same circumstance for a 7-year-old child without a disability.[18]
[18] JTB, S1, 551.
I agree with the Respondent’s contention in that the request for STA is arising from his mother’s hospitalisation versus his functional impact of his impairments. She explained that FDGS has never been away from her except when she is in hospital and that during this time, he requires a support worker specialised in his disability to build his skills and be able to communicate with him, like his mother can.
Overall, the provision of care for a 7-year-old child due to their primary caregiver’s absence is not the funding responsibility of the NDIA therefore this support cannot satisfy s 34(1)(aa) of the Act. As s 34 is cumulative it is not necessary for me to consider further criteria in relation to the funding of the STA.
4. Hearing Aids – Belton 9 Achieve
FDGS seeks funding of $7,463.99 for a pair of Belton Achieve 9 rechargeable hearing aids and accessories. In her Carers Impact Statement FDGS’ mother states:
[FDGS] did a trial of hearing aids at homeschooling with his Tutor and she and I agree that they helped significantly in filtering out defensive noises encouraging better communication and outcomes with his learning. Hearing Aids are also suggested by [FDGS’s] audiologist, supported by a recent hearing test that [FDGS] did.[19]
[19] JTB, A23, 208.
The Respondent clarified during the hearing that FDGS has Autism level 2 listed as his primary disability in their system and that he has met access to the NDIS early intervention pathway on the basis first of Global Developmental Delay. This was updated to the following significant and permanent impairment from his diagnosis of Autism level 2:
·Social interaction[20]
[20] JTB, R1, 451.
The Respondent clarified that FDGS had not met access in relation to any hearing, auditory or central auditory processing disorder under s24 or s25 of the Act. This was put to FDGS’ mother during the hearing, and she explained that he should meet access regarding his disorder and that the supplied 2023 audiology report should be enough evidence for this to occur. The currency of this report was discussed during the hearing and FDGS mother explained that his homeschooling tutor recommended these in 2023 and so did the audiologist in 2023.
FDGS was referred by Dr A his Psychologist, for an audiological assessment on 20 April 2023. The results from this assessment indicated he had normal peripheral auditory function. On 4 September 2023 he undertook a Central Auditory Processing Disorder (CAPD) assessment with Ms R an Audiologist. Her 2023 audiology report also dated 4 September 2023 was provided to the Tribunal.[21] This report indicates FDGS has “normal peripheral auditory function” in both ears and excellent speech discrimination (AB Words) in both ears.
[21] JTB, A10, 156 – 159.
In her assessment Ms R conducted the Multiple Auditory Processing Assessment-2, and her conclusion was that “the overall picture indicates [FDGS] has normal hearing threshold levels and exhibits Central Auditory Processing Disorder (CAPD)”.
The audiology report was reviewed by the NDIS Technical Advisory Branch and their technical advisor noted the Dichotic Digits subtest reported a score 2 standard deviations from the mean and that it was not identified which ears performed better and worse. The advisor explains that as a diagnosis of Auditory Processing Disorder relies on a Dichotic Digits testing score it remains unknown whether FDGS’ score is normal for a child of the same age. The NDIS Technical Advisor also states the evidence was uncertain on whether the listening tests were standardised for children with autism.[22]
[22] JTB, R1, 454.
Taking this into account I cannot be satisfied that there is sufficient evidence before me to be positively satisfied that FDGS has a significant and permanent impairment as a result of an auditory impairment for the purposes of sections 24(1) or 25 of the NDIS Act.
For the purposes of subsection 34(1)(aa) of the NDIS Act, the supports included in FDGS must be necessary to address his needs that arise as a result of impairments he met access for impairments attributable to his Autism level 2 in the domain of social interaction.
On the current evidence, I am not satisfied that s 34(1)(aa) is met because the audiology assessment results for FDGS state he has normal auditory function. Additionally, the audiologist provided other communication strategies to trial to understand their benefit for FDGS. These are significantly lower cost options as well as teacher directed strategies. There was some evidence by FDGS’ mother that his school have considered strategies around where he sits in the classroom for optimal learning.
There is no updated evidence showing that should the CAPD diagnosis be correct, that the impairment that flows would rise to significantly reduced functional capacity in one of the life domains capable of meeting scheme access. Alongside this is also the consideration that there is no updated evidence about the no cost/low-cost solutions for FDGS to trial, that would assist in demonstrating that the hearing aids are value for money under s 34(1)(c).
As s 34 is cumulative it is not necessary for me to consider further criteria in relation to the funding of the hearing aids.
5. Speech pathologist
The Respondent has funded 6 hours for a speech pathologist assessment in the current plan with the view that this assessment by a suitably qualified practitioner will inform the frequency of ongoing therapy required. As such the Respondent’s position is that any decision on the amount of therapy required should await the recommendations of the speech pathologist.
FDGS is seeking 50 hours per year of speech therapy a year. The evidence adduced at hearing of FDGS’s mother, was that she cannot find a speech pathologist to undertake the assessment who can travel to see FDGS, and this is further hampered as NDIS has not provided transport funding to allow FDGS to travel to a speech pathologist. She further explained her opinion that she did not think speech therapy would be of significant benefit to FDGS stating:
Doing speech assessments are a waste of time because he knows word structure, he knows sentence structure, he knows how to communicate. But because of his mutism and shutting down, it's more of a psychological problem. And that's why he made so much more psychology. But you keep insisting on speech.[23]
[23] Transcript 1:17:22 -1:17:42.
The oral evidence given at hearing by FDGS’ mother is that ongoing speech therapy is unnecessary for FDGS. Taking this into account and in noting that there is no recommendation from a suitably qualified professional regarding ongoing therapy hours, I cannot be satisfied that this request meets s 34(1)(aa), (c) or (d) of the Act. As such it is not necessary for me to consider further criteria in relation to the funding of the speech therapy.
6. Psychologist
The Respondent has provided 10 hours for a psychology assessment and await the recommendations of the psychologist to fund any ongoing therapy.
During the hearing FDGS mother explained that she had undertaken a psychology assessment for FDGS and utilised all the funding available for this, however, the assessment was not complete, as she did not have enough funding. The Respondent and FDGS entered into this exchange:
FDGS’ mother: But when you have a complex case, it's not a matter of just 10 hours because you've got all different things to look at. You've got developmental needs, you've got emotional, and trauma needs, and you've got language needs, and then you've got developmental needs, and you've got all sorts of different things.
The Respondent: So, if 10 hours for an assessment just wasn't enough, why didn't you go back to the agency and say I need some more assessment funding?
FDGS’ mother: Because if he was given ongoing, we could have used the ongoing for the assessments as well.
The Respondent: The ongoing funding comes from what the recommendation is after the assessment is made, doesn't it?
FDGS’ mother: Yes, I know. And then we wouldn't have needed more funding without doing the assessment. The assessments wouldn't be necessary if you gave him ongoing funding. That's the reason and that's my answer.[24]
[24] Transcript, 1:13:00 – 1:14:03.
Ms H is FDGS’ Occupational Therapist. Her written evidence in the form of a Functional Capacity Assessment dated May 2024 and an undated letter of support are relied upon in support of the recommendation for the psychology assessment along with ongoing psychology intervention sessions of 20 per year.[25] FDGS’ mother explained this report should be relied upon as Ms H has an established relationship with FDGS and an intimate understanding of his needs.
[25] JTB, A22, 199-200.
At the hearing FDGS’ mother agreed with the Respondent that this OT is not a psychologist or psychiatrist, however she disagreed that this diminished the weight that the Tribunal could place on the evidence being from an appropriately qualified practitioner. The only evidence before me from a psychologist is the 3 December 2021 report of Dr A, a Clinical Psychologist for the purposes of FDGS’ access to the scheme, when he was in preschool.[26]
[26] JTB, A26, 288-289.
Overall, I accept the Respondents contention that in absence of a assessment by a suitably qualified practitioner I cannot be satisfied to fund ongoing psychology therapy for FDGS under s 34(1)(aa), (c) or (d) of the Act. As such it is not necessary for me to consider further criteria in relation to the funding of the ongoing psychology.
7. Transition to School funding
FDGS is currently in year two and is seeking support in supporting his transition with school and his school refusal behaviours. FDGS undertook a period of home-schooling beginning in 2023. Since mid-2024 he has transitioned back into a local mainstream primary school, though his school attendance is low.
FDGS is seeking 11.6 hours per day for 6 months stepping down then to 2 hours daily for transition to school funding. The evidence relied upon for this support is the letter of keyworker Ms C in April 2025.[27] Ms C describes that this funding has been used in 2024 to assist with FDGS’ morning and afternoon routines as well as encouraging school attendance.
[27] JTB, A30, 348.
In this report she describes her role as the coordinator of supports, providing direct intervention, and that she liaises with both his school and with the out of school hours care program.
During the hearing FDGS’s mother explained his attendance at school is hit and miss, with FDGS attending around 3 out of 5 school days per week . She explained his reasons for school refusal are largely due to his inability to communicate his needs. She referred to the examples of when his usual classroom teacher is away or there are new people around, he will become mute refusing to communicate and will bottle it all up.[28]
[28] Transcript, 41.02.
She further explained that his school actively working with her on addressing issues and that they have already put a lot of support in place including a restoration station for emotional regulation and consideration of the optimal classroom positioning for FDGS for learning. FDGS’s mother confirms that his school has an School Learning Support Officer to help him access the curriculum, in addition to his classroom teacher
FDGS’ current plan includes funding of $19,774.56 for assistance with social, economic and community participation, which is available to be used to assist him with his community involvement and socialising. The plan utilisation of this funding is $650 or 3% since the plan began in March 2025.
FDGS’s mother was asked about the underutilisation of the social and community participation. She explained that she is and has utilised funding under this category to assist FDGS to go to the park, attend soccer, family fun days, trips in the car and support with going out for meals. This claim by FDGS’ mother was difficult for the Tribunal to logically follow and is not supported by the plan usage provided by the NDIS. Several attempts were made to understand FDGS’ mothers’ explanation on the low usage of this support.
FDGS’ mother relied on the Disability Inclusion Act 2014 (NSW) in relation to this request. I have considered this legislation and agree that the Act commits the NSW Government to promoting inclusion of people with disability to enrich community life for everyone. I agree with the point FDGS’ mother made that it is legislation that promotes inclusion and accessibility generally for people with disabilities. Overall, for my purposes of my determination I am bound to utilise the NDIS Act.
FDGS’ mother described that she has been using support worker services since the new plan began in March 2025 via 4 different support workers. Puzzlingly she described that to date, she had only received invoices for $650 since March 2025. Her explanation was that one support worker in particular hadn’t charged for his services and was currently in New Zealand on holiday. FDGS’ mother offered that the Tribunal could call his mobile and check with him during the hearing.
Section 34(1)(c) is not met because FDGS has significant funding that remains overwhelmingly unused under this category of his plan, and I am not satisfied further funding represents value for money. As s 34 is cumulative it is not necessary for me to consider further criteria in relation to the funding of the transition to school funding.
Other capacity building supports in current plan
FDGS is currently funded for $14,494 for 45 hours of specialist behaviour support and 20 hours for positive behaviour support plan. During the hearing plan utilisation was revealed to be 0% since the plan began on 11 March 2025. She explained that:
I live in a rural area that have limited access to positive behaviour specialists. The nearest support is REDACTED and REDCATED and that would mean that travel would take most of the funding which I didn't get. Therefore, this makes it redundant, and I don't need the money for positive behaviour support.[29]
[29] Transcript, 1:00:56.
I further sought to ask FDGS’s mother about her use of FDGS’ significant funding for a support coordinator to help her utilise funding and engage services, as the plan utilisation suggested 0% usage. FDGS’s mother explained:
As I said, living in a rural area makes the COS redundant because the supports need to be suitable. So, I have to actually make sure that anyone that interacts with him can meet his needs … So, I am self-managed, and I engage services myself. It's not a matter of not knowing how to find or engage services. It's usually a matter of either the services don't have enough money to come and see him, or the services are unaware of how to deal with the complex diagnosis of selective mutism plus autism plus central auditory processing disorder plus learning. So, no need for the support coordination.[30]
[30] Transcript 1:25:28 – 1:26:10.
I note during the hearing that FDGS’ mother was set in her views regarding the utility of some of FDGS’ current funded supports and showed no inclination to be swayed from these views when presented with the suggestion that assessments are required for the provision of ongoing therapy funding and that the current funded supports may be useful to assist FDGS achieve his goals.
In consideration of FDGS mothers’ explanation that FDGS currently receives funding for capacity building support that is not of use to him, I refer to the following obligation of NDIS participants under the NDIS Act:
51 Requirement to notify of a change in circumstances
(1) A participant or a prospective participant must notify the CEO if:
(a) an event or change of circumstances happens that affects, or might affect, his or her access request, status as a participant or plan; or
(b) the participant or prospective participant becomes aware that such an event or change of circumstances is likely to happen.
CONCLUSION
On the evidence, and for the reasons given above, I am not satisfied the requested supports are reasonable and necessary under section s34(1)(aa)-(f).
DECISION
Pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is affirmed.
1. I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of General Member D Heron.
................[SGD].................
Associate
25 July 2025
Date of hearing: 7 July 2025
Representative for the Applicant: Applicant’s mother
Counsel for the Respondent: Mr N Swan, of Counsel
Solicitors for the Respondent: Ms J Thomson, Moray & Agnew
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