FMDP and Chief Executive Officer, National Disability Insurance Agency (NDIS) - [2025] ARTA 2225

FMDP and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2025] ARTA 2225 (24 October 2025)
Applicant:FMDP
Respondent: Chief Executive Officer, National Disability Insurance Agency
Tribunal Number: 2023/9061

Tribunal:General Member A Colvin
Place:Brisbane
Date:24 October 2025

Decision: .
The Tribunal sets aside the decision under review and remits this matter to the Respondent with directions that a new statement of participant supports (SOPS) be approved for the Applicant, and that:
1.The following reasonable and necessary supports be included in the SOPS:
(i)Core Support - assistance with daily life and assistance with social, economic and community participation of:
a)10 hours/day, at the standard daytime 1:1 ratio, for 9 months; and
b)thereafter, 6 hours/day, at the standard daytime 1:1 ratio;

(ii)Behaviour Support - 65 hours/year of Behaviour Support, comprised of 45 hours Specialist Behaviour Intervention Support and 20 hours Behaviour Management Plan Including Training in Behaviour Management Strategies;
(iii)Capacity Building Support:
a)12 hours/year to be funded at the relevant rate for psychology; and
b)58 hours/year to be funded in the category of other professional support for Capacity Building – Improved Daily Living Skills at the relevant practitioner rates.

The funding in clauses (iii)(a) and (b) will replace the existing funding for Capacity Building – Improved Daily Living Skills (excepting funding for Assistance with Decision Making Daily Planning and Budgeting, which is to be replicated on a pro rata basis from the current statement of participant supports);
(iv)all other reasonable and necessary supports provided in the Applicant’s current statement of participant supports (excluding any one-off assistive technology supports already used) be replicated on a pro rata basis; and
(v)the above supports to be included in the Applicant’s plan are to be calculated in accordance with the National Disability Insurance Scheme (NDIS) Pricing Arrangements and Price Limits that are in effect at the relevant time.

2.The reassessment date be 15 months after the supports listed at paragraph [1] above are included in a SOPS.

..................SGD..................
General Member A Colvin
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – National Disability Insurance Scheme Act 2013 (Cth) – consideration of section 34 – reasonable and necessary supports – support worker assistance – overnight on-call service.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)
National Disability Insurance Scheme (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
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Mills and National Disability Insurance Agency [2025] ARTA 1410

FSWN and National Disability Insurance Agency [2025] ARTA 114
Secondary Materials
NDIS – Operational Guidelines
Statement of Reasons
BACKGROUND

FMDP is a young adult who is a participant in the National Disability Insurance Scheme (NDIS). Previously, he resided with his family but in recent years he has resided alone in privately-owned accommodation near his family. He was granted access to the NDIS based on impairments described as autism spectrum disorder (ASD) and ‘other sensory/speech’.
As an NDIS participant, FMDP has a plan that includes a statement of participant supports (SOPS). This review is about whether funding for additional supports should be included in those SOPS, including increased funding for assistance from support workers and funding for an overnight on-call service.
On 7 June 2023, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (Agency) approved a SOPS in a plan for FMDP (the 2023 SOPS). On internal review on 2 November 2023, no change was made to the 2023 SOPS.
FMDP applied to the Administrative Appeals Tribunal (AAT) on 1 December 2023. From 14 October 2024, the AAT became the Administrative Review Tribunal.[1]
[1] Applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to this Tribunal, and this Tribunal has authority to continue and finalise any aspect of the review not already completed by the AAT. See the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024.
The hearing took place by videoconference on 18 and 22 August 2025. The Applicant and the Agency each provided a Statement of Facts Issues and Contentions (SFIC). Documents available to the Tribunal included a joint tender bundle (JTB)(Exhibit 1) and a 2-page document headed ‘FMDP – Plan Summary & breakdown of funding’ filed by the Agency (Exhibit 2).
The Tribunal also heard oral evidence from:
·FMDP’s parents;
·FMDP’s support coordinator (SC);
·FMDP’s psychologist (AY); and
·an occupational therapist (RB).
THE DECISION UNDER REVIEW
FMDP sought review of the 2023 SOPS. By the time of the hearing, further SOPS had been approved on 22 April 2024,[2] 11 September 2024,[3] and 6 February 2025.[4] On 5 August 2025, funding in the SOPS approved on 6 February 2025 was continued.[5] This is the current SOPS.
[2] JTB2.
[3] JTB3.
[4] JTB4.
[5] JTB5.
The present application for review is taken to be an application for review of the decision dated 2 November 2023 (reviewing the 2023 SOPS) and subsequent decisions to vary the 2023 SOPS or approve a new SOPS.[6]
[6] Subsection 103(2) of the NDIS Act.
THE ISSUES
By the time of the hearing, the parties had reached agreement on some supports to be included in the current SOPS but remained in disagreement over whether the following supports (set out in the Applicant’s SFIC) are reasonable and necessary supports that should be included in the current SOPS:
·12 hours/day (from 9am to 9pm), 7 days/week for assistance with self-care activities and to access the community and social and recreational activities; and
·on-call overnight monitoring ‘as required’.
FMDP’s core funding in the current SOPS includes no funding for on-call overnight monitoring. It also includes a lower amount of support hours than FMDP seeks. It includes funding for:
·4 hours/day for 7 days/week for assistance with daily life; and
·2 hours/day for 7 days/week for assistance with social, economic and community participation.
THE LAW
The legislative framework
The statutory provisions relevant to this application for review are found within the NDIS law, including:[7]
·the NDIS Act;
·the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Supports Rules);
·the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth) (Miscellaneous Provisions Rules); and
·the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth) (NDIS Supports Transitional Rules).
[7] The statement of the law that follows largely adopts the summary in Mills and National Disability Insurance Agency [2025] ARTA 1410.
The Agency also issues Operational Guidelines. The Tribunal is not bound to follow Operational Guidelines issued by the Agency but, in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task.[8] Operational Guidelines considered in the present matter are published by the Agency on its website,[9] and include guidelines on Reasonable and Necessary Supports.
[8] Re Drake v Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634.
[9] Webpage: ourguidelines.ndis.gov.au
Approving SOPS in participants’ plans
Section 3 of the NDIS Act sets out the objects of the NDIS Act. Sections 4 and 5 of the NDIS Act set out general principles guiding actions under the NDIS Act, and sections 17A and 31 of the NDIS Act set out principles that relate to participation in the NDIS and plans.
If a person becomes a participant, under section 32 of the NDIS Act the CEO must facilitate the preparation of a plan for the participant. FMDP’s plan is an ‘old framework plan’. For those plans, section 33 of the NDIS Act sets out the matters that must be included in a participant’s plan. A plan must include a statement of the participant’s goals and aspirations. It must also include a SOPS, prepared with the participant and approved by the CEO. The SOPS in a participant’s plan must specify, among other things, ‘the reasonable and necessary supports (if any) that will be funded’ under the NDIS.[10]
[10] Paragraph 33(2)(b) of the NDIS Act.
When approving a SOPS in a participant’s plan, the CEO must comply with the mandatory requirements contained in subsection 33(5) of the NDIS Act. One of the requirements in subsection 33(5) is that the CEO ‘be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded’: paragraph 33(5)(c) of the NDIS Act.
Subsection 34(1) of the NDIS Act deals with ‘reasonable and necessary supports’: The matters set out in subsection 34(1) of the NDIS Act are more than mandatory considerations. They are more in the nature of criteria that the decision‑maker must be positively satisfied about on the material.[11] Subsection 34(1) provides as follows:[12]
[11] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at 201.
[12] The NDIS Act was amended by the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth) (the Amending Act). Those amendments came into effect on 3 October 2024. If the Tribunal varies the SOPS in FMDP’s plan, the effect of item 129 of Schedule 2 to the Amending Act is that section 34 of the NDIS Act, as amended by the Amending Act, must be met.
34 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 a 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.
Paragraph 34(1)(f) of the NDIS Act requires the CEO to be satisfied that the support is ‘a NDIS support’ for the participant. Section 10 of the NDIS Act defines ‘NDIS support’. The effect of that section is that a support is an NDIS support if it is declared by rules to be an NDIS support, provided that rules have not declared that the support is not an NDIS support, and provided that the support is not sexual services, alcohol, or illicit drugs. The NDIS Supports Transitional Rules declare certain items to be NDIS supports and certain items to not be NDIS supports.
When approving SOPS in a participant’s plan the Support Rules are relevant as are the Miscellaneous Provisions Rules. Rule 7 of the Miscellaneous Provisions Rules states that with specific reasonable and necessary supports, the CEO must be satisfied that the support is most appropriately funded through the NDIS and not through other general systems of service delivery of support services.
EVIDENCE
FMDP moved from the family home into his own accommodation in late 2022. At the time of the hearing, he was residing alone. He enjoyed riding his bike and was doing voluntary work at 2 different workplaces.
FMDP’s parents were appointed attorneys under an enduring power of attorney. They were actively involved in managing FMDP’s NDIS funding including engaging support workers. FMDP’s parents were also providing significant ongoing support to their son.
FMDP’s mother gave evidence, which I accept, that most mornings in the hours between 6am and 9am, FMDP would wake, get dressed by himself and then ride his bike. He would ride to his parents’ home, and a park, before returning to his own home.
FMDP had support worker assistance on Tuesdays, Wednesdays and Thursdays for 9 hours from 9am to 6pm. He undertook one of his volunteer jobs every second Thursday, accompanied by a support worker.
On Mondays and Fridays, for part of the year, FMDP attended his other volunteer work. He did this work in the mornings, without a support worker, including travelling to and from the workplace by himself. He then had a support worker in the afternoons until 6pm on those 2 days of the week. On Saturdays, FMDP generally had support worker assistance from noon until 6pm. The support workers undertaking Friday and Saturday shifts had recently ceased employment but FMDP’s parents intended to employ replacement support workers for those shifts.
At the time of the hearing, FMDP was regularly seeing a psychiatrist and psychologist. His psychology sessions were funded under his NDIS plan but not his appointments with his psychiatrist. FMDP was taking medication prescribed for anxiety and ASD. There were no approved restrictive practices in place.
FMDP was also seeing an exercise physiologist and had been regularly attending a speech therapist for some time. He had an occupational therapist but was not seeing her regularly and the evidence of FMDP’s support coordinator, SC, was that FMDP struggled to engage with occupational therapy. SC’s evidence was that it was intended in the future that FMDP would see an occupational therapist fortnightly, and that person would be either his current occupational therapist or someone from within the same practice.
FMDP’s mother’s evidence
FMDP’s mother explained that she and her husband had assisted FMDP to move to his own accommodation because he had wanted to try this. If it proved unsuccessful, she thought he would have to live in supported independent living accommodation.
FMDP’s mother gave evidence, which I accept, that FMDP could read but found writing difficult. He still needed assistance with activities of daily living. He dressed himself in the mornings, but not always appropriately, and did not comb his hair. When he left his home in the mornings, he did not always remember to lock the door or take his keys and so now a neighbour had spare keys. FMDP could make a toasted cheese sandwich and microwave frozen chicken nuggets. She said he could also go shopping but made poor choices, having regard to his budget and health. FMDP was also supposed to take medication morning and evenings but often needed prompting multiple times before complying.
FMDP’s mother also said that when FMDP was stressed he lost the ability to think clearly and at those times he needed someone to help with a solution. In public, that might be because he perceived someone had looked at him a certain way. At home during the day, it might be something like not being able to do up his belt or make his bed. At those times, he got heightened and frustrated. He might bang and swear loudly, and at times he had put holes in his walls and doors and had damaged a curtain rail.
As to how FMDP’s support hours were being utilised, FMDP’s mother said that support workers assisted FMDP with community access but also with activities at home including doing his washing, maintaining his house, managing money (by making and following a shopping list) and developing cooking skills. She said they did these things with FMDP, rather than for him, then stepped back so that he could do them on his own. She said they followed a schedule on his refrigerator for household tasks.
FMDP’s mother’s evidence was that most days FMDP would call and text her, sometimes 10 to 15 times/day, and sometimes quite late at night. She said that if he called because of something concerning him, and he was with a support worker, she referred him back to them. The previous Friday he had texted or called 15 times. She had to go to him multiple times because he was banging and swearing loudly and she was concerned his neighbours would complain. She said he previously called very frequently in the evening but that had reduced to about once/week. The last time he had called at night in distress was about 2 weeks before the hearing. I understand however from the evidence of FMDP’s mother that there was no pattern to FMDP’s calls and it was very difficult for her to estimate the frequency or recall precise details.
FMDP’s mother gave evidence regarding her concerns for her son’s safety. She was concerned that he rode his bike in an unsafe manner and she said he had sustained injuries from bike riding. She also felt her son was very vulnerable, including when he went out sometimes at night. I accept based on her evidence that he is at risk of physical injury from riding a bike. I also accept based on her evidence that the nature of his impairments, together with some aspects of his physical presentation, mean that he is vulnerable in public to verbal abuse and physical aggression, for example if others misinterpret him, and particularly when he goes into the community alone at night.
FMDP’s psychologist, AY
AY provided a report dated 31 July 2023. She gave evidence that she saw FMDP once/month and had been treating him for an extended period. Her evidence was that FMDP had difficulties with emotional and behavioural regulation. She explained that at times when FMDP was distressed he relied on someone else to ‘co-regulate’ him.
AY said that she had worked with FMDP in psychology sessions to improve his skills in emotional and behavioural regulation, including practising techniques that he could employ. She also provided supportive psychotherapy regarding stressors that arose. She thought there had been some improvement in FMDP’s capacity for emotional and behavioural regulation, noting that he had reported an occasion when he was in public with a support worker where he had been able to regulate his emotions faster than he previously had. He had reported taking half an hour to regulate his emotions on that occasion. She thought that previously he would have ruminated much longer.

AY considered that FMDP could further improve his skills in emotional and behavioural regulation. However, she considered that there was a ceiling to this given his intellectual impairment and ASD level 2.
AY considered that FMDP would benefit from skills development. She also considered that positive behaviour support would be beneficial to reinforce gains that FMDP had made, and that coordination between service providers would be very useful for FMDP.
AY’s view was that FMDP’s funded support hours of 6 hours/day were inadequate. Initially, she said that she considered he would require 12 hours/day of support since this was the bulk of the time that he was awake. Subsequently, she stated that 10 hours may be adequate.
Regarding nighttime calls, AY thought that FMDP generally slept soundly once he was asleep though this was based on FMDP’s self-report. AY considered that FMDP would benefit from having someone to call at night at those times when he was distressed, although she understood this was happening less by the time of the hearing. AY had not talked with FMDP, or others, about appropriate people for FMDP to call and times to call.
AY said that some time ago FMDP had experienced suicidal ideation. At those times he had reached out to his parents and, on one occasion, had appropriately called Lifeline. AY said that suicidal ideation had not been a feature of FMDP’s presentation for some 12 months.
FMDP’s support coordinator, SC
SC’s evidence was that FMDP’s parents made decisions regarding the utilisation of FMDP’s plan, including the time and duration of support workers’ shifts, how support workers were engaged (including making the decision to engage workers individually rather than through a support agency) and how to utilise capacity building supports.
SC thought that capacity building for FMDP was best undertaken by having an allied health professional (possibly a mental health worker) working with FMDP for 2 hours/week (overseen by an occupational therapist), with the remaining capacity building being undertaken by support workers who would reinforce work undertaken by the allied health professional.
SC agreed that, in the time that she had been FMDP’s support coordinator, no professional person had been engaged in a role to guide FMDP’s transition to independent living. She considered that there should be a holistic approach to FMDP’s transition and skills development, and that this could be achieved through regular stakeholder meetings. Currently, there were no stakeholder meetings, and there was no behaviour support plan and no consistent occupational therapist. She also observed that where support workers are engaged through an agency, a team leader from that agency would usually attend stakeholder meetings, but that FMDP had multiple support workers, all individually employed.
FMDP’s occupational therapist, RB
RB provided a report dated 4 October 2024 and gave oral evidence. RB was not seeing FMDP regularly before writing her report and had not seen him regularly since writing that report.
In her report RB set out FMDP’s skills and abilities in a range of activities at that time. She then recommended a range of supports for FMDP. Her report was written at a time when FMDP was doing all his volunteer work in the company of a support worker. By the time of the hearing, FMDP was attending one of his workplaces without a support worker and travelling independently to that workplace.
In her report, RB recommended that FMDP be funded for on-call overnight monitoring for 12 hours/day, 7 days/week. RB described this as being due to:
‘harmful behaviours and a history of suicidal ideation, particularly during nighttime hours when support is not available. On call support would provide help with emotional regulation and help to deescalate at the end of the day. It is expected that this will not only alleviate pressure on emergency health services but also his parents. Funding for this additional support is crucial for (FMDP’s) ongoing safety, well-being and stability’.
In her oral evidence, RB maintained her opinion that an on-call overnight monitoring service was required. However, she said she did not see the on-call service as a long-term requirement.
In her report, RB recommended that FMDP be provided with support worker assistance for 12 hours/day for 7 days/week. She described that as essential for skill development and to ‘maximise engagement’ in activities, which included activities such as shopping, personal care, and ordering medication, and ‘emotional regulation’.
In oral evidence, RB maintained her view that FMDP required 12 hours/day of support worker assistance. On questioning, she thought it was possible that he might require less than 12 hours if the support hours were utlilised differently, so that FMDP did not have such a long time alone in the evening between support shifts.
SUBMISSIONS
The Agency’s submissions
Support worker hours
The Agency submitted that FMDP’s plan had significant capacity building funding and had done for some time. It submitted that it was difficult to understand why FMDP’s capacity building funding had not been utilised in accordance with its intention, and particularly why occupational therapy had not been regularly utilised. It also submitted that it was clear that no-one was overseeing FMDP’s plan, that support workers were engaged individually and privately hired, and that there was no connection between what the psychologist was doing and what others were doing. As a result, the Agency contended it was difficult to know how much more skill development would assist FMDP.
The Agency submitted that 12 hours/day of support worker assistance was not required. It considered this was not effective and beneficial, and not value for money compared to improved skills development. It contended it could also be counterproductive and did not account for time that FMDP wanted to spend alone. The Agency also contended that FMDP’s occupational therapist had failed in her evidence to provide specifics of how the support worker hours would be utilised.
The Agency contended that instead, for a period of 9 months, FMDP should be funded for support worker assistance for 9 hours/day. This would enable time for him to be linked appropriately to develop skills, build sleep hygiene and decrease dysregulation. That timeframe reflected the evidence of FMDP’s parents that they were not seeking intensive support forever, and the quantity of hours each day reflected the evidence of FMDP’s psychologist that FMDP required more than 6 hours/day but not 12 hours/day. The Agency contended that, after 9 months, support hours should be reduced to 6 hours/day for a further 6 months, with the plan lasting for 15 months.
The Agency did not consider that capacity building supports should be reduced. Despite the evidence of FMDP’s support coordinator regarding capacity building supports, the Agency maintained its view that capacity building supports for FMDP should be ‘front-loaded’.
On-call overnight monitoring
The Agency contended that on-call overnight monitoring did not represent value for money and that it was not the case that the only alternative to this support was inactive overnight support.
FMDP’s submissions
Regarding on-call overnight monitoring, on FMDP’s behalf it was contended that it was appropriate for FMDP to present to emergency services if suicidal, and that the on-call support being sought was not the same as the support provided by emergency services and Lifeline. The support being sought was support and assistance with activities of daily living overnight. It was contended that on-call overnight support was consistent with the evidence of FMDP’s occupational therapist and psychologist, and that the only alternative to this support was on-site inactive overnight support. It was contended that on-call overnight monitoring was dependent on provision of a quote but fell within the scope of the NDIS.
Regarding support worker hours, it was contended that the evidence of FMDP’s parents was that 9 hours/day was not sufficient and that the evidence of FMDP’s occupational therapist was that 12 hours/day was required. It was contended that her evidence was only that it was possible that this may decrease in the future and she could not predict when that might occur. It was contended that there was no evidence that support at the level sought would lead to dependence. Further, upskilling would not assist with issues being faced at the time of the hearing.
CONSIDERATION
FMDP is a young man who, with the support of his parents, moved from the family home in 2022 to live alone in private accommodation. At the time of the hearing FMDP was receiving formal and informal support. FMDP’s parents were committed to assisting FMDP to develop independence, improve his skills and social connection, and to engage in meaningful volunteer work. They provided him with a high level of informal day-to-day support. FMDP was also receiving significant formal support from support workers.
FMDP’s move to independent living has involved complex issues including how best to structure FMDP’s support hours, what to prioritise in capacity building and how to implement that. For example, consideration has had to be given to building the skills needed at home and to improving FMDP’s capacity to safely ride his bike. It has also involved consideration of how to respond to FMDP’s behavioural issues, such as repeated calls to his parents at night and damage to property at his own home.
Despite the complexity of these issues, at the time of the hearing there was no coordinated approach to supporting FMDP’s move to independent living. There was no integrated process of, for example, regular stakeholder meetings involving FMDP’s parents, an occupational therapist, a behaviour support practitioner, FMDP’s psychologist, and a team leader managing direct support providers. Instead, there was limited or no involvement from an occupational therapist and behaviour support practitioner, and although FMDP was engaging regularly with a psychologist, she was largely working on strategies around behavioural issues directly with FMDP, in isolation.
That is an observation and in no way a criticism of FMDP’s parents or the professionals involved in his care as there may be many reasons for that situation. FMDP’s parents impressed as focussed, committed and thoughtful about their son’s needs and the best way to support him.
On FMDP’s behalf it was asserted that he required support around the clock, including 12 hours/day of direct support and on-call support for the remaining 12 hours/day. The Agency however has approached FMDP’s support needs for some years now based on what it described as ‘front-loading’ capacity building supports. That is, it has provided some core supports together with considerable capacity building support. The Agency conceded only that a short-term modest increase in some direct support was required.
Support worker hours
FMDP is a young adult who has intellectual impairment and ASD and is living alone. It is not in dispute that he requires some assistance with activities of daily living and support in accessing community activities.
I accept, based on the evidence of FMDP’s mother and the occupational therapist, RB, that, FMDP requires assistance with day-to-day tasks such as prompting him in attending to personal care, and supporting him to maintain his home, do his washing, buy groceries, manage his money (for example, by making and following a shopping list), make choices around foods and prepare meals. FMDP also requires assistance to safely undertake activities in the community.
Based on the evidence of FMDP’s mother and his psychologist, I also accept that FMDP has difficulties with emotional and behavioural regulation, and places reliance on others for co-regulation. This can significantly impact FMDP’s ability to complete tasks at home, to be alone at home for extended periods during waking hours, and to safely engage with others in the community. His mother gave compelling evidence of the impact of FMDP’s impaired capacity for emotional regulation and his reliance on coregulation, particularly when FMDP was alone at home during waking hours. She also described the support she then provided to prevent an escalation that might involve property damage or complaints from neighbours, as has occurred in the past.
I am satisfied based on that evidence that an increase in FMDP’s core support hours is necessary, at least in the medium term. Although RB recommended 12 hours/day of support, I do not place significant reliance on that specific recommendation because RB was unable in her oral evidence to clearly explain how she had arrived at that amount. However, having regard to the totality of the evidence, I am satisfied that 10 hours/day is necessary to address needs of FMDP arising from impairments that meet the access criteria (meeting the requirements in paragraph 34(1)(aa)). I am not satisfied that this requirement is met for funding of support hours beyond that amount.
There has been improvement in FMDP’s calls to his parents in the evenings. There may be many reasons for this, including FMDP’s improved ability to self-regulate. Based on the evidence of FMDP’s psychologist, I consider that FMDP’s ability to self-regulate can improve further, although the change will not be a ‘major’ change. There is also scope now for consistent involvement from a behaviour support practitioner and an occupational therapist. Taking those factors into account, I consider that support hours of 10 hours/day are not required in the long term. I am satisfied that after 9 months support hours at the level of 6 hours/day will remain necessary to address needs of FMDP arising from impairments that meet the access criteria (meeting the requirements in paragraph 34(1)(aa)). I am not satisfied however, that this requirement is met for funding of support hours beyond that quantity after 9 months.
I am therefore satisfied that support worker assistance at 10 hours/day for 9 months, and then 6 hours/day thereafter is necessary to address the needs of FMDP arising from impairments that meet the access criteria and is value for money (meeting the requirements in paragraphs 34(1)(aa) and (c) of the NDIS Act), but that those requirements are not met at the higher level of support sought by FMDP.
The remaining requirements in subsection 34(1) of the NDIS Act are also met. The funding will assist FMDP to pursue his goals around work, independence, community involvement, emotional regulation and social skills, meeting paragraph 34(1)(a). It will also assist FMDP to undertake work and social interaction, meeting paragraph 34(1)(b).
I am also satisfied that paragraph 34(1)(d) of the NDIS Act is met, that is, that the support will be, or is likely to be, effective and beneficial for FMDP, having regard to current good practice. His psychologist was of the view that increased support was required.
Funding at this level also takes account of the support that it is reasonable for families to provide, as required by paragraph 34(1)(e) of the NDIS Act. While it is reasonable for families to provide guidance and assistance to a young adult moving to live by himself, FMDP’s parents have been providing a high level of support to FMDP when formal supports have not been available.
For the purposes of paragraph 34(1)(f), support worker assistance to FMDP is also an NDIS support. It is not excluded by Schedule 2 to the NDIS Supports Transitional Rules and falls within items 14, 15 and 27 of Schedule 1.
Each of the requirements of subsection 34(1) of the NDIS Act is therefore met. This means that funding for support workers at the level I have determined is a reasonable and necessary support pursuant to subsection 34(1) of the NDIS Act.
On-call overnight monitoring
At times when FMDP is in acute distress, or experiencing suicidal thoughts, it is appropriate that he utilises emergency and acute care health services. He can call Lifeline, call an ambulance, and/or attend hospital. His psychologist acknowledged that it was appropriate for FMDP to call Lifeline when suicidal. The NDIS is not intended to replace those services. Any support for FMDP that is intended to replace reliance on acute care services that are clinical in nature would not be a reasonable and necessary support that could be included in a SOPS for FMDP.[13]
[13] Rule 7.6 and 7.7 of the Supports Rules and Rule 7 of the Miscellaneous Provisions Rules.
I accept on the evidence that at the time of the hearing it would have been of benefit to FMDP to have someone to talk to from time to time at night to assist him to regulate his emotions. That assistance would be related to impairments for which he meets the eligibility requirements for the NDIS and would often not be acute care that is clinical in nature. It would instead be similar to the assistance with emotional regulation that support workers were providing FMDP when necessary, during the day.
However, I am not satisfied that overnight support for 12 hours/day 7 days/week, whether through an on-call monitoring service or through inactive overnight support, is necessary to address needs of FMDP arising from impairments. First, the calls to family in distress have reduced. Secondly, although FMDP’s occupational therapist recommended overnight monitoring, she did so clearly in part as a replacement for emergency services when FMDP was experiencing suicidality. That has not been a feature of his presentation for over a year and, as set out above, is not the purpose of NDIS supports. Thirdly, no alternate strategies have been explored or discussed in any coordinated way, or trialled, including changing when supports are provided, identifying appropriate ways for staff and family to respond to FMDP’s calls, or improving FMDP’s skills in understanding appropriate people to call and times to call. The requirement in paragraph 34(1)(aa) of the NDIS Act is therefore not met.
For these reasons, I find that the requirement in paragraph 34(1)(aa) of the NDIS Act is not met for this support. It is therefore not necessary to consider the remaining requirements in subsection 34(1) of the NDIS Act regarding this support.
Support co-ordination
In closing submissions, FMDP’s representative confirmed that although funding for level 2 support coordination of 48 hours/year was referred to in the Applicant’s SFIC, that support was not in dispute as it was already included in the current SOPS.
Occupational therapy, speech therapy, exercise physiology and psychology
In closing submissions, the parties indicated that they agreed that capacity building supports in the current SOPS should be 70 hours/year, comprised of 50.5 hours for allied health supports and 19.5 hours for exercise physiology. The Applicant’s representative, in his final submission, confirmed that provided that this support could be used flexibly and was not a stated support as it appeared in the current SOPS, it dealt with the following requests in the Applicant’s SFIC:
·occupational therapy/skill development (road safety) 1 hour per month.
·speech therapy 45 minutes per fortnight (22 hours per 12 months)
·exercise physiology – 1 hour per fortnight;
·psychology – 1 hour monthly
The Agency’s representative agreed that this funding should be flexible, not stated, subject to confirming instructions.
The parties asked to be given time after the hearing to lodge terms of agreement reflecting the matters on which they had reached agreement, enabling those matters to be dealt with in accordance with section 103 of the Administrative Review Tribunal Act 2024 (ART Act). The parties were given 2 weeks to do so. An extension was then sought and agreed to. Terms of agreement dated 9 October 2025 were finally received on 17 October 2025.
The terms of agreement state that in respect of the Applicant’s request for capacity building supports for occupational therapy, speech therapy, psychology and exercise physiology, the Applicant is to be provided 70 hours/year funding constituted by 12 hours/year for psychology and 58 hours/year in the category of other professional support for ‘Capacity Building - Improved Daily Living Skills’ at the relevant practitioner rates. This was to replace existing funding for ‘Capacity Building – Improved Daily Living Skills’ except for funding for ‘Assistance with Decision Making Daily Planning and Budgeting’ which was to be replicated.

In accordance with subsection 103(3) of the ART Act, to the extent that the terms of agreement relate to a part of this proceeding or a matter arising out of this proceeding, I have given effect to that agreement in my decision without further dealing with that part or matter.
Behaviour support
The parties indicated at the hearing that they were also in agreement that behaviour support was a reasonable and necessary support and that the current SOPS should include:
65 hours per year of Behaviour Support, comprised of 45 hours Specialist Behaviour Intervention Support and 20 hours Behaviour Management Plan Including Training in Behaviour Management Strategies
The terms of agreement dated 9 October 2025 do not relate to this support.
In its SFIC, the Agency addressed the evidence regarding this support, and its reasons for conceding that this was a reasonable and necessary support. Having regard to the material before me, and the Agency’s submissions, I am satisfied that the Agency’s concession is appropriately made and that the requirements in subsection 34(1) of the NDIS Act are met for 65 hours/year of behaviour support.
DECISION
The Tribunal sets aside the decision under review and remits this matter to the Respondent with directions that a new statement of participant supports (SOPS) be approved for the Applicant, and that:
1.The following reasonable and necessary supports be included in the SOPS:
(i)Core Support - assistance with daily life and assistance with social, economic and community participation of:
c)10 hours/day, at the standard daytime 1:1 ratio, for 9 months; and
d)thereafter, 6 hours/day, at the standard daytime 1:1 ratio;
(ii)Behaviour Support - 65 hours/year of Behaviour Support, comprised of 45 hours Specialist Behaviour Intervention Support and 20 hours Behaviour Management Plan Including Training in Behaviour Management Strategies;
(iii)Capacity Building Support:
c)12 hours/year to be funded at the relevant rate for psychology; and
d)58 hours/year to be funded in the category of other professional support for Capacity Building – Improved Daily Living Skills at the relevant practitioner rates.
The funding in clauses (iii)(a) and (b) will replace the existing funding for Capacity Building – Improved Daily Living Skills (excepting funding for Assistance with Decision Making Daily Planning and Budgeting, which is to be replicated on a pro rata basis from the current statement of participant supports);
(iv)all other reasonable and necessary supports provided in the Applicant’s current statement of participant supports (excluding any one-off assistive technology support(s) already used) be replicated on a pro rata basis; and
(v)the above supports to be included in the Applicant’s plan are to be calculated in accordance with the National Disability Insurance Scheme (NDIS) Pricing Arrangements and Price Limits that are in effect at the relevant time.
2.The reassessment date be 15 months after the supports listed at paragraph [1] above are included in a SOPS.

1.

2. I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for the decision herein of General Member A Colvin.

................[SGD].................
Associate
24 October 2025

Dates of hearing: 18 and 22 August 2025

Solicitor for the Applicant: Mr C Bilboe, Intrepidus Law

Solicitor for the Respondent: Mr D McLaren, Mills Oakley

Counsel for the Respondent: Ms N Blok