FRBS by his Nominee and CEO, National Disability Insurance Agency (NDIS)

FRBS by his Nominee and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1294 (8 August 2025)
Applicant/s:  FRBS by his Nominee
Respondent:  CEO, National Disability Insurance Agency
Tribunal Number:                2022/7631

Tribunal:Senior Member P French
Place:Sydney
Date:8 August 2025

Decision:(1)Pursuant to s 101(1)(a) of the Administrative Review Tribunal Act 2024 (Cth) the Application insofar as it seeks independent review of a decision of the respondent on internal review dated 1 September 2022, which was to vary an original decision to approve a Statement of Participant Supports to be included in the Applicant’s Participant Plan dated 23 June 2022, is dismissed on the basis that it no longer is of any substance.
(2)Pursuant to s 105(a) of the Administrative Review Tribunal Act 2024 (Cth) the operative decision under review, being the decision of the respondent to approve a Statement of Participant Supports dated 5 July 2024, as varied on 12 May 2025, is affirmed.

....................[SGD]....................................................
Senior Member P French
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – reviewable decision of CEO – decision to approve a Statement of Participant Supports – whether requested supports are reasonable and necessary – funding for short-term accommodation – funding for service provider transport – funding for exercise physiology – whether value for money – whether effective and beneficial – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 25, 37, 38AA
Administrative Review Tribunal Act (Cth), s 12, 53, 101, 105
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth), Schedule 16, Item 24
National Disability Insurance Scheme Act 2024 (Cth) s 3, 4, 10, 17A, 24, 31, 33, 34, 47A, 48, 49, 99, 100, 103
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1 Act 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track) Transitional Rules 2024 (Cth), Schedule 1
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth): r 7
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth), rr 3.1, 3.2, 3.3
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth): rr 5.4, 5.5, 5.6, 5.7, 5.8
Social, Community, Home Care and Disability Services Award 2010 (NSW)
Cases
Beezley v Repatriation Commission (2015) 150 ALD 111; [2015] FCAFC 165
Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607
Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; 24 ALR 577
DQKZ and National Disability Insurance Agency [2024] AATA 2276
Forrest and National Disability Insurance Agency (NDIS) [2025] ARTA 1131
HPSC and National Disability Insurance Agency [2021] AATA 727
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) 2 ALD 634
Shi v Migration Agent’s Registration Authority (2008) 235 CLR 286
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
Secondary Materials
National Disability Insurance Agency, Our guideline – Short-Term Accommodation or Respite, 24 June 2022.
World Health Organisation (2011), International Classification of Functioning, Disability and Health, Geneva
World Health Organisation (2002), Towards a Common Language for Disability, Functioning and Health, ICF, Geneva
Statement of Reasons

This is an application on behalf of FRBS (the participant) made by his Plan Nominee, FRBS(N), pursuant to s 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) for independent review of a decision of the delegate of the Chief Executive Officer of the National Disability Insurance Agency (CEO, NDIA, the Agency) made under s 100(6) of the NDIS Act on 1 September 2022 which was to vary an original decision of another delegate of the CEO made on 23 June 2022 to approve a Statement of Participant Supports (SoPs) for the Applicant under s 33(2) of the NDIS Act. The Tribunal has jurisdiction under s 12 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) to review this decision because it is designated a reviewable decision in the Table to s 99(1)(Item 4) of the NDIS Act.[1] This application was made to the Tribunal on 16 August 2023.
[1] This proceeding commenced before the Administrative Appeals Tribunal (AAT) in accordance with the power conferred by s 25 of the administrative Appeals Tribunal Act 1975 (Cth). The AAT was abolished and replaced by the ART with effect from 14 October 2024. By operation of Item 24 in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) any proceeding which was not determined by 14 October 2024 continues in the ART and is to be determined by the application of the provisions of the ART Act.
While this application has been before the Tribunal a delegate of the CEO has approved a new Participant Plan for the Applicant, containing a new SoPS, by a decision made on 5 July 2024. Additionally, on 12 May 2025, a delegate of the CEO varied this new Plan to replenish its supports on a pro-rata basis in respect of the period 15 May 2025 to 11 November 2025. This variation contains the current operative SoPS. By operation of s 103(2)(c)(ii) of the NDIS Act the application is also taken to be an application for a review of these decisions.
The CEO’s decision to approve the Applicant’s SoPS dated 3 July 2024 left 3 supports that had been requested by the Applicant in dispute. That dispute has carried over in respect of the current operative SoPS. They are requests for funding for 76 days Short-Term Accommodation (STA), service provider transport ($13,910.40), and exercise physiology ($15,140.43 being 91 hours per year) each referenced to a 12-month period.
After carefully considering these requests on the material before me I am not satisfied that they are reasonable and necessary supports for the Applicant.
The Applicant is already permissibly utilising his other Core Supports funding flexibly to obtain the equivalent of the 76 days STA he seeks over 12 months. There is no insufficiency in the current SoPS in this respect. Substantial other support is also approved in his SoPS that has a respite effect for FRBS(N). It may well be sensible for a plan to be developed and implemented for the Applicant’s transition to supported independent living. But that objective does not appear in his current Statement of Goals and Aspirations, it is currently thought this will not occur for about another 5 years, and nobody has discussed this with the Applicant. STA funding premised on such a transition is therefore premature.
The evidence in relation to the claim for additional service provider transport is seriously unsatisfactory. In the absence of reasonable clarity about the costs claimed and how this relates to the Applicant’s actual social and community participation activities, this support cannot be found to be value for money.
The Applicant is already funded for exercise physiology based on the model of support recommended by his exercise physiologist, which involves a progressive a step down to a partially delegated exercise support. There is insufficient evidence to establish that the continuation of twice weekly sessions with the exercise physiologist is value for money as compared with the partially delegated model, or that it would be of greater benefit to the Applicant.
I have therefore affirmed the current operative SoPS decision.
As the current operative decision supersedes the internal review decision and other decisions made prior to the current operative decision, the application insofar as it concerns those earlier decisions is no longer of any substance. The application is therefore dismissed on that basis insofar as it concerns these decisions.
The Tribunal’s role
The Tribunal’s role in conducting this review has been to reach its own conclusion as to whether the delegate of the CEO’s decision that the supports in dispute are not reasonable and necessary support is the correct or preferable decision.[2] That has involved the independent re-assessment of the evidence that was before the delegate when she made her decision as well as the assessment of the additional documentary and witness evidence that was before the Tribunal at the time of the hearing.[3]
[2] Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; 24 ALR 577 (Drake) at 589
[3] Shi v Migration Agent’s Registration Authority (2008) 235 CLR 286 at [45] – [46]
Section 34(1) of the NDIS Act provides, relevantly, that for the purposes of specifying the reasonable and necessary supports that will be funded in a SoPS, the CEO must be “satisfied” of each of the matters set out in that section in relation to the funding of each such support. In this independent review, the Tribunal must also be so satisfied. This is a state of positive satisfaction or relative certainty which must be attained in relation to each criterion specifically.[4] Therefore, while neither the Applicant nor the Agency bear any formal onus of proof, the Applicant does bear the practical onus of placing before the Tribunal, or pointing to material before the Tribunal, that can persuade it that each of the supports in dispute is reasonable and necessary.[5]
[4] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [60]
[5] Beezley v Repatriation Commission [2015] FCAFC 165 (2015); 150 ALD 11 at [68]; HPSC and National Disability Insurance Agency [2021] AATA 727 at [85]
Evidence and hearing
The following documentary material is before me:
i.The documents filed by the CEO in accordance with the obligations imposed by s 37 and s 38AA of the AAT Act (T-Documents),
ii.Hearing Tender Bundle prepared by the CEO in consultation with the Applicant, filed on 22 October 2024, marked Exhibit 1,
iii.The Applicant’s Participant Plan for the period 3 July 2024 to 3 July 2025 (omitted from the Hearing Tender Bundle), marked Exhibit 2,
iv.A provider quotation for Exercise Physiology dated 17 October 2023 (omitted from the Hearing Tender Bundle), marked Exhibit 3,
v.Applicant’s Statement of Facts, Issues and Contentions filed 15 March 2024,
vi.CEO’s Statement of Facts, Issues and Contentions filed 26 July 2024,
vii.CEO’s Submissions on the “Getting the NDIS Back on Track” amendments dated 3 February 2025,
viii.Applicant’s submissions on the “Getting the NDIS Back on Track” amendments dated 17 February 2025,
ix.Transcript of the Hearing conducted on 31 October 2024.
x.Applicant’s Participant Plan for the period 15 May 2025 to 11 November 2025.
The principal hearing was conducted on 31 October 2024 by video.
Despite the prehearing directions made for the filing and exchange of the Applicant’s documentary evidence, at the hearing outset FRBS(N) sought to file, without advance notice to the Applicant’s legal representative, a further report of FRBS’s exercise physiologist. Counsel for the CEO objected to the tender of that document on the basis that leave had not been sought prior to the hearing for its tender, and the CEO was now taken by surprise by it. After hearing from the parties, I ordered pursuant to s 53 of the ART Act that the scope of the review would be limited to the evidence filed prior to the hearing in accordance with the procedural directions made for that purpose with the result that I did not accept this late report into evidence. I note that this does not leave the Applicant without a remedy in relation to that report. He is an ongoing participant in the NDIS. He cansubmit that report to the Agency in support of a s 48 reassessment request (unscheduled review) or in the context of a s 49 reassessment (scheduled review) of his Participant Plan for the CEO’s consideration.
The participant’s Plan Nominee, FRBS(N), gave oral evidence under affirmation. She also called as a witness Ms J Rainey, Clinical Psychologist, who have evidence under oath.
During deliberation[6] it became apparent that the parties had not been provided with the opportunity to address issues arising from the amendments to the NDIS Act introduced by the measures contained in the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth) (the amending Act), which passed the Parliament on 22 August 2024. Certain of those amendments came into effect on 3 October 2024 and are expressed to apply to a SoPS approved or varied after that date irrespective of whether a participant’s Participant Plan came into effect before, or on, or after the commencement of these amendments. New Rules developed pursuant to the amendments to the principal Act also came into effect on 3 October 2024 and are expressed to apply to a SoPS approved or varied from 3 October 2024.
[6] This case was constituted to this Tribunal at short notice when the previously constituted Member became unavailable.
To enable the parties the opportunity to respond to the implications of the Getting the NDIS Back on Track legislative changes I reopened the hearing in January 2025 and called for further submissions, indicating to the parties that I considered that I would deal with the resumed hearing on the papers, unless either party contended that a further live hearing was necessary. Neither party contended that a further live hearing was required.
The Applicant’s current participant plan
The Applicant’s current Participant Plan incorporates the following participant goals (the Applicant’s Statement of Goals and Aspirations):[7]
I would like [to] continue participating in my group activities where I can build personal and social skills as well as maintain informal supports.
I would like support to maintain my home so I can live in a safe and hygienic environment as well as sustain my informal supports.
I would like to maintain and develop strategies to support my sensory and emotional regulations, as well as improve social and gross motor skills.
I would like to continue accessing and participant (sic) in the Special Olympics so I can maintain my social and community participation as well as team building skills.
I would like to maintain my behaviours, so I can learn strategies to regulate my emotions so I can have safe and meaningful relationships with new and existing people.
I would like to improve my physical strength, fitness and mood to help me continue being active in my current activities and increase my community participation.
I will continue to develop my strength and physical fitness in my home and community. I will follow a personalised plan that can help me identify my challenges and how I can overcome them. I will ask for help in learning new tasks when needed. I will learn new tasks slowly and consistently to reduce the risk of injury.
I would like to sustain my informal supports by learning independent skills and how to receive supports from others so I can be appropriately supported when required.
[7] This Statement of Goals and Aspirations is taken from the Applicant’s Plan, as varied, on 12 May 2025.
The SoPS incorporated into the Applicant’s current Plan has a total budget of $203,357.94 for funded supports, for the period 12 May 2025 to 11 November 2025, which is divided into 3 categories. In the “Core Supports” category, total funding of $171,585.48 is available. This funding component is expressed to be “flexible”, meaning that it can be used across the core support types. Within this category $78,398.82 is available for assistance with daily activities, being for personal care, respite, house/yard maintenance, other activities of daily living, and 20 days of 1:1 Short-Term Accommodation and related activities; and, $93,186.66 is available for social community and civic participation. In the “Capacity Building Supports” category total funding of $30,536.46 is available. This comprises $21,009.48 for “Improved Daily Living, being for occupational therapy, Exercise Physiologist and psychology support. These are “stated supports”, meaning that funding must be used for these purposes. Additionally, $9,526.98 is available for Specialist Support Coordination. In the “Recurring Supports” category total funding of $1,236.00 is available for transport to access community activities.
Applicable law
The NDIS Act is founded upon an explicit values base which is found in its objects (s 3), general principles (s 4), general principles guiding actions (s 5), and with respect to participants and their plans, in more specific principles contained in ss 17A and 31.
Notable among these value statements for present purposes are the following:
3         Objects of the Act
(1)       The objects of this Act are to:
…
(d)provide reasonable and necessary supports … for participants in the National Disability Insurance Scheme;
(e)enable people with disability to exercise choice and control in the pursuit of their goals and in the planning and delivery of their supports; …
4         General principles guiding actions under this Act
…
(4)People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5)People with disability should be supported to receive reasonable and necessary supports …
…
(8)People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives.
…
(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.
…
5General principles guiding actions of people who may do acts or things on behalf of others
It is the intention of the Parliament that, if this Act requires or permits an act or thing to be done by or in relation to a person with disability by another person, the act or thing is to be done, so far as practicable, in accordance with both the general principles set out in section 4 and the following principles:
…
(b) people with disability should be encouraged to engage in the life of the community;
…
(d)the cultural and linguistic circumstances … of people with disability should be taken into account;
(e)the supportive relationships, friendships and connections with others of people with disability should be recognised,
…
17A     Principles relating to the participation of people with disability
(1A)In performing the CEO’s functions and exercising the CEO’s powers under this Chapter, the CEO must have regard to the principles in this section.
(1)People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.
(2)People with disability will be supported in their dealings and communications with the Agency so their capacity to exercise choice and control is maximised.
(3)The National Disability Insurance Scheme is to:
(a)respect the interests of people with disability in exercising choice and control about matters that affect them; and
(b)enable people with disability to make decisions that will affect their lives; and
(c)support people with disability to participate in, and contribute to, social and economic life.
…
31       Principles relating to plans
The preparation, variation, reassessment and replacement of a participant’s plan, and the management of 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 the participant and their families and carers.
…
(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.
…

In giving effect to the objects of the Act, regard must be had to the need to ensure the financial sustainability of the NDIS: s 3(3)(b). It is also a general principle that, relevantly, the CEO and any other person performing functions or exercising powers under the NDIS Act is to have regard to the need to ensure the financial sustainability of the NDIS: s 4(17).
Section 33 of the NDIS Act sets out the matters that must be included in a NDIS Participant Plan.
Pursuant to s 33(1), the Plan must include the Participant’s Statement of Goals and Aspirations.
Pursuant to s 33(2), the Plan must include a SoPS, prepared with the participant and approved by the CEO that specifies, relevantly to this case, (b) the reasonable and necessary supports (if any) that will be funded under the NDIS.
Section 34 of the NDIS Act determines what is a “reasonable and necessary support” for the purposes of s 33(2):
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 s 24) or the early intervention requirements (see section 25);
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is an NDIS support for the participant.
Note:For the purposes of paragraph (aa):
(a)the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b)a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
(2)The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).
Part 3 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Supports for Participants Rules) contains Rules for assessing proposed supports, including, relevantly, against the ‘value for money’ criterion in s 34(1)(c), and the ‘effective and beneficial and current good practice’ criteria in s 34(1)(d) of the Act.
Those Rules provide:
Value for money
3.1In 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
3.2In 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 referred 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.
3.3In 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.
Section 10 of the NDIS Act, as amended, and the Transitional NDIS Support Rules prescribe what is a NDIS Support for the purposes of s 34(1)(f). Rule 7 of the Miscellaneous Provisions Rules, in effect, preserves s 34(1)(f) as it stood prior to the 3 October 2024 amendments. In short summary, it provides that the decision maker must be satisfied that a requested support is most appropriately funded through the NDIS, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered as part of a universal service obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
For the purposes of paragraph 34(1)(aa) it is the disability requirements that are relevant in this review. In this respect, s 24 provides:
24       Disability requirements
(1)       A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)      mobility;
(v)       self-care;
(vi)      self-management; and
(d)the impairments or impairments affect the person’s capacity for social and economic participation; and
(e)the person is likely to require NDIS supports under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require NDIS supports under the National Disability Insurance Scheme for their lifetime, despite the variation.
(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require NDIS supports for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
…
Rules 5.4 to 5.7 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (Becoming a Participant Rules) deal with the question of when an impairment is permanent or likely to be permanent for the disability requirement. Those Rules provide:
When is an impairment permanent or likely to be permanent for the disability requirements?
5.4An impairment is, or is likely to be, permanent … only if there are no known available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve.
5.6An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated.
5.7If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
Rule 5.8 of the Becoming a Participant Rules deals with the question of when an impairment results in a substantially reduced functional capacity to undertake a specified activity. That rule provides:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities
5.8An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities – communication, social interaction, learning, mobility, self-care or self-management … - if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participant in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
Sub-section 33(5) prescribes what is required of the CEO when she approves a SoPS:
(5)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 s 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.
Consideration
Having regard to the current state of the law, the questions that must be asked in this review, and the sequence in which they must be asked and answered, is as follows:
(a)Are each of the supports that remains in dispute a NDIS Support as defined?
If the answer to this question is “no”, the support cannot be considered for approval in the Applicant’s SoPS because it cannot meet the requirement of s 34(1)(f).
If the answer to (a) is “yes” with respect to each of the supports that remains in dispute, then that support can be considered for approval in the Applicant’s SoPS if it is a support that is necessary to address needs of the Applicant that arise from an impairment in relation to which he meets the disability requirement. Therefore:
(b)What are the Applicant’s permanent impairments that result in substantially reduced functional capacity to undertake any of the activities of communication, social interaction, learning, mobility, self-care and self-management, and which affect his capacity for social or economic participation?
(c)Does the support in dispute meet the needs of the Applicant arising from an impairment in relation to which he meets these disability requirements?
If the support in dispute does not meet the needs of the Applicant arising from an impairment in relation to which he meets the disability requirements then it cannot be considered for inclusion his SoPS because it cannot meet the requirements of s 34(1)(aa).
(d)If the answer to (c) is “yes” then ask whether the support in dispute meets the requirements of s 34(1)(a), (b), (c), (d) and (e) and Rule 7 of the Miscellaneous Provisions Rules.
Is the support in dispute a NDIS Support?
Relevantly to this case, Schedule 1 of the NDIS Supports Transitional Rules prescribes those supports that are NDIS Supports for the purposes of s 10 and paragraph 34(1)(f) of the NDIS Act. With respect to the supports in dispute:
-Item 5 prescribes a “assistance with daily life tasks in a group or shared living arrangement” category, which is defined to be “supports that provide assistance with or supervision of daily living tasks to participants in a shared living environment” which includes, relevantly, “(b) supports for short term accommodation and respite”.
-Item 6 prescribes a “assistance with travel or transport arrangements” category, which is defined to be “supports that provide transport assistance to participants that cannot travel or use public transport independently” which includes, relevantly, “(a) transport for the purposes of participants undertaking community-based activities” and “(c) provider travel costs”.
-Item 18 prescribes a “exercise physiology and personal well-being activities” category, which is defined to be “supports that maintain or increase physical mobility or well-being through personal training or exercise physiology to address the functional impact of the participant’s disability” which includes “(a) accessing services from an appropriately qualified professional” and “(b) assessment and development of a personalised exercise program which aims to increase or maintain a participant’s functional capacity”, and “(c) maintenance of muscle strength, range of motion, balance and mobility”.
I am satisfied having regard to these prescriptions that the supports in dispute are NDIS Supports for the purposes of paragraph 34(1)(f) of the Act. The request for Short-term accommodation falls within the scope of Item 5, the request for service provider transport falls within the scope of Item 6, and the request for exercise physiology falls within the scope of Item 18 of Schedule 1 of the NDIS Supports Transitional Rules
Do the supports in dispute meet the needs of the Applicant arising from an impairment in relation to which he meets the disability requirement?
A threshold issue that must be determined before this question can be answered is the temporal focus for paragraph 34(1)(aa). Specifically, is this provision focused on the point in time when the participant was assessed as meeting the access criteria for the NDIS, or is its temporal reference the time the SoPs is approved? For the more extensive reasons I have given in Forrest[8] I am satisfied that the use of the irregular verb ‘meets’ in the present continuous tense in paragraph 34(1)(aa) means that the temporal focus is the time the SoPS is approved and not the time the Applicant was assessed as meeting the access criteria to become a participant in the NDIS.[9] However, nothing turns on this in this case. I am satisfied that Applicant’s impairments as at the date of the hearing have not changed from those that he lived with when he was granted access to the NDIS.
[8] Forrest and National Disability Insurance Agency (NDIS) [2025] ARTA 1131.
[9] Ibid at [57] – [65].
It is not controversial that the Applicant lives with the following health conditions: Autism Spectrum Disorder (Level 3), Moderate Intellectual Disability, Generalised Anxiety Disorder, Intermittent Explosive Disorder, and Excoriation Disorder. But these are health conditions, not impairments.
As the Court observed in Mulligan,[10] in determining if the Applicant meets the disability requirements it is necessary to identify and describe with precision the impairment to which a prospective participant’s disability is attributable, because the access criteria contained in paragraphs 24(1)(b) to (d) require evaluation of the permanency and impact of that impairment on the prospective participant’s functional capacity and social and economic participation.[11] As I have explained in DQKZ[12] the World Health Organisation’s International Classification of Functioning, Disability and Health[13] is extrinsic material that is of assistance in this statutory task, in part because its purpose is to provide a standardised conceptual framework and common language for disability, functioning and health.[14]
[10] Mulligan v National Disability Insurance Agency [2015] FCA 544
[11] Ibid at [54].
[12] DQKZ and Chief Executive Officer, National Disability Insurance Agency [2024] AATA 2276 at [144] to [149]
[13] WHO, (2011), Geneva.
[14] World Health Organisation, (2002), Towards a Common Language for Disability, Functioning and Health, ICF, Geneva
Having regard to the ICF classification system I am satisfied the Applicant lives with the following permanent impairments for the purposes of paragraphs 24(1)(a) and (b) and 34(1)(aa):
i.Impaired global mental functions, specifically, intellectual functions, global psychosocial functions, and temperament and personality functions (psychic stability),[15]
ii.Impaired specific mental functions, specifically, emotional functions, perceptual functions, thought functions, higher level cognitive functions, and mental functions of language.[16]
[15] Chapter 1 of the ICF (b110-b139)
[16] Chapter 1 of the ICF (b140 – b189)
It is not in issue that the Applicant’s impairments derivative of his health conditions result in substantial reduced functional capacity to undertake the tasks and actions involved in each of the life activity areas prescribed by paragraph 24(1)(c). Nor is it in issue that these impairments affect the Applicant’s capacity for social and economic participation for the purposes of paragraph 24(1)(d). I make those findings.[17]
[17] The evidentiary basis for these findings is found in the medical and allied health reports at pages 14 to 51 and 305 to 335 of the Hearing Bundle, and in the statements of FRBS(N) dated 14 March and 31 October 2023 at pages 284 – 290 and 309 -10 of the Hearing Bundle.
Are the supports in dispute otherwise reasonable and necessary?

I now turn to consider supports in dispute against the reasonable and necessary criteria contained in paragraphs 34(1)(a) to (e), and Rule 7 of the Miscellaneous Rules.
An appropriate starting point is to consider the requested support in the context of the person (the Applicant).
The Applicant is 26 years of age. He became a participant in the NDIS on 28 November 2016. He lives at home with his mother, FRBS(N), who is 58 years old, and two siblings in their family home in a Western Sydney suburb. Both siblings have significant impairment and disability. FRBS(N) has psychosocial impairments that, at least in part, are reactive to the demands of her role as parent and carer of 3 disabled young people.[18] The Applicant’s father is separated and lives separately from FRBS(N) but he and FRBS(N) maintain a close supportive relationship in relation to their children.
[18] Ms Rainey’s Report. Hearing Bundle, Tab A4, pages 309-326.
Prior to August 2022, the Applicant stayed with his father in his father’s home 5 days per fortnight and for most school holidays. However, in August 2022, the Applicant’s father was diagnosed with a major medical condition that has required major surgery and continuing post operative treatment. The amount of time FRBS spends with his father has decreased in regularity and quantum as a result. The final state of the evidence is that at the time of the hearing FRBS was staying with his father for 1 to 2 days and nights once a month, and sometimes more frequently than that.[19]
[19] FRBS(N)’s oral evidence, Transcript, page 32, line 40ff.
The Applicant is interested in trains, horse riding, bowling, variants of golf, and bushwalking, among other things. At the time of the hearing, he had previously been a member of an organised sports organisation where he had participated in regular training and competitions in athletics, swimming and bowling. He had been suspended from that organisation and participation in its events due to behavioural incidents but hoped to be able to return to participation in a staged way.
Short-term accommodation (STA)
At the hearing outset the Applicant’s legal representative confirmed that he sought funding for a total of 76 days of STA support during his then Plan period of 12 months, not 80 days as had been referred to in the Statement of Facts, Issues and Contentions that had been filed on his behalf on 15 March 2024, and elsewhere.[20] Additionally, it was clarified that the number of days was inclusive of the 40 days of STA that were already funded in the Applicant’s SoPS, such that the support in dispute was actually a request for funding for an additional 36 days of STA.
[20] Transcript, page 5, line 39ff.
In submissions on his behalf, the Applicant’s legal representative sought to rely, in part, upon the Agency’s operational policy in relation to this requested support, being the “Our guideline – Short-Term Accommodation or Respite”.[21]
[21] As of 24 June 2022
I note that the Agency’s policy, unlike the Act and the Rules, is not binding upon the Tribunal. However, it is a long-established principle that the Tribunal should ordinarily apply such policy except to the extent that it would lead to an outcome that is contrary the requirements of the Act and Rules.[22]
[22] In Re Drake and Minister for Immigration and Ethnic Affairs (Drake) (No.2) (1979) 2 ALD 634 at 635 & 642 -643.
Relevant sections of that policy are extracted following:
What is Short Term Accommodation, including respite?
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 break from their caring role.
Sometimes a short stay away from home:
…
·May help to maintain your current living situation by giving your informal supports a break.
Short-Term Accommodation may suit your needs if your usual support network isn’t available for a short period.
…
Usually, we fund up to 28 days of Short Term Accommodation per year. You can use your Short Term accommodation flexibly. For example, you might want to use it in a block of up to 14 days at a time or for one weekend a month.
…
If you already have funding in your Core budget, you can use this for Short Term Accommodation.
You can use your Core budget on a range of supports like Short Term Accommodation to suit your needs. You should think about the best way to use your budget to pursue the goals in your plan.
…
Do we expect family and informal supports to provide care for you?
When deciding what supports we may fund we also think about your informal supports. Informal supports are your family, friends, and community networks who support you. We consider if they’re able to continue to support you in the long term.
We’ll also think about if we might fund other things that can help support your carers. We may fund Short Term Accommodation with other supports that provide a respite effect, and help your carers keep supporting you in the long term. This may include:
·Support to access the community
·In home care and support
·Capacity building supports
We’ll consider the risk to you and your family’s wellbeing if they continue to support you (without Short Term Accommodation). We also look at how the support provided by your family and networks affects your independence. We compare this to the independence and opportunities Short Term Accommodation may provide.
I accept the Applicant’s submissions, referenced to this operational policy, that a primary purpose of STA is to relieve carer stress and “burn-out”, and that there is no limit on the number of days of STA that may be approved annually, even though under that policy, it is “usually” up to 28 days. The issue is what is reasonable and necessary in accordance with the statutory test under the Act and Rules.
I do not understand the following matters to be in dispute, and I make these findings:[23]
i.The Applicant has high support needs in terms of daily care and supervision. FRBS(N) provides a great deal of that care and supervision personally, and is also primarily responsible for the organisation of others who provide this support to him on a formal basis (in this respect, she is his Plan Nominee, and his Plan is substantially “Self-Managed” by her),
ii.As a result of her caring responsibilities for three young adult children with significant impairment and disability, as well as the support she provides to other unwell family members, being her elderly mother and FRBS’s father, FRBS(N) experiences significant exhaustion, stress and reactive mental health symptoms,
iii.Since August 2022, FRBS’ father has had a significantly diminished capacity to share care and support of FRBS with FRBS(N) due to his own serious illness and the ongoing treatment it requires,
iv.The Applicant has rigid and otherwise challenging behaviours which can include incidental and intentional violence towards others. Because of the intensity of her support role for FRBS, FRBS(N) is often the recipient or target of that behaviour.
[23] This information is found in FRBS(N)’s Statements dated 14 March 2023 and 31 October 2023 at pages 284 – 290 and 309 -10 of the Hearing Bundle, and in a letter written by FRBS(N)’s clinical psychologist, Ms Rainey dated 20 December 2021 which is at Tab T1C of the T-Documents, and her Report at Tab A$ of the Hearing Bundle.
I also make the following findings on the evidence before me:
i.The Applicant’s SoPS includes the approval of funding for 40 days STA on a 12-month basis (pro-rata in the current operative SoPS). That is significantly higher (by 12 days) than the usual maximum STA approved for participants. The CEO submits, and I accept, that the number of days approved represents a significant uplift from what had been approved under the Applicant’s prior SoPS,[24] and that this reflects the Agency’s acceptance of the need for substantial STA funding, including because FRBS’ father is no longer able to provide FRBS with the regular care he did before the onset of his illness.
ii.The additional STA support requested would cost approximately $82,800.00 to fund on an annual basis.[25] That is a substantial cost.
iii.The Applicant’s SoPS includes the approval of funding of $59,454.79 on a 12-month basis (pro-rata in the current operative SoPS) for in-home support for the Applicant which can include, but is not limited to assistance with personal care, house and yard maintenance, other activities of daily living and respite. It also includes the approval of funding of $180,600.38 on a 12-month basis (pro-rata under the current SoPS) for support to participate in community-based activities and to build and maintain friendships.
iv.There was a degree of difficulty in clarifying with FRBS(N) at the hearing how this funding is presently utilised. A quotation for these supports provided by a support provider suggests that it is utilised Monday to Friday for 35 hours per week (or an average of 7 hours per day) during the day, for an additional 2.5 hours each week-day evening and for 12 hours each Saturday (7 hours during the day and 5 hours at night).[26]
v.However, in her oral evidence, FRBS(N) indicated that FRBS’ formal support for participation activities was more tailored than this would suggest meaning that it occurred during different intervals each day depending on the activity.[27] Nevertheless it is clear that FRBS is engaged in activities with funded support both in and outside the home for substantial parts of each day. The CEO submits, and I accept, that this support, while it is directed at the participant, has a secondary effect of relieving FRBS(N) from supporting FRBS. That is, it has a “respite effect” for her.
vi.Funding in the Applicant’s Core Supports category is stated to be “flexible” meaning it can be used within budget on the types of support that fall within its scope according to the participant’s preferences. “Respite” (or STA) falls within the scope of Core Supports. In this respect, in her oral evidence, FRBS(N) indicated that the Applicant does not utilise in-home support during the evenings, but instead uses this funding to purchase additional STA support.[28] She estimated that, as at the date of the hearing (31 October 2024) he had utilised 83 days STA since “last August”,[29] which I take to mean August 2023. This would indicate that the Applicant has been utilising his existing Core Supports funding to purchase approximately 76 days of STA per annum during the period of his current and previous Participant Plans. It was not put to me that there is any over-utilisation of available funding, or a shortfall in needed support hours, because of this. Rather, it was FRBS(N)’s evidence that it is impractical for her to use disability support worker hours in the home.[30]
[24] Transcript page 7, line 36ff to page 8 line 4; the Applicant’s prior SoPS included approval of 28 days STA: Agency Statement of Facts Issues and Contentions par 17.
[25] The Agency’s estimate of $92,000.00 per annum is based on an additional 40 days STA. The cost quoted has been adjusted to 36 days.
[26] Joint Tender Bundle, page 344
[27] FRBS(N) oral evidence, Transcript page 28, lines 1 -43.
[28] FRBS(N) Oral evidence, Transcript page 28, line 46 to page 29, line, 20
[29] FRBS(N) Oral evidence, Transcript page 29, line 6.
[30] FRBS(N) Oral evidence, Transcript page 29, lines 4 – 20.
In the oral evidence of Ms Rainey, the Applicant’s Clinical Psychologist, and in FRBS’ statement of 14 March 2023 a further rationale for increased STA support was advanced, being that it would be part of a transition plan for him to move to supported independent living.[31] In this respect, it was contended that this transition would be necessary “within 5 years” and would need to occur on a graduated basis.[32]
Is additional funding for STA support reasonable and necessary?
[31] Ms Rainey’s oral evidence, Transcript page 24, line 5 – 28; FRBS(N) Statement at page 289 of the Joint Tender Bundle, at [33].
[32] Ms Rainey oral evidence, Transcript page 23, line 43.
With respect to the paragraph 34(1)(a) consideration, I am satisfied that the additional STA requested would support the Applicant to pursue his last stated goal which is to “sustain my informal supports by learning independent skills and how to receive support from others so I can be appropriately supported when required”. In this respect, I note that under that stated goal is the following statement:
How will you work towards this goal?
I will develop my personal skills so that I can complete them with as minimal assistance as possible. I will engage in short stays away from my informal supports where I must relay (sic) on others. I will explore challenges presented and learn how to appropriate (sic) them as I slowly increase may short stays over time.
However, to the extent that it is contended that the rationale for additional STA is to support the Applicant’s transition to supported independent living, I note that his Statement of Goals and Aspirations contains no goal or aspiration of that nature, and that the evidence as it stands before me is that this is unlikely to contemplated for several years after the current Plan period has ended. Nor has such a plan been discussed with the participant. To this extent additional funding for STA support is not related to the Applicant’s current Goals and Aspirations.
With respect to the paragraph 34(1)(b) consideration I am satisfied that the experience of living outside his family home for short periods with formal support staff who are strangers to him will assist the Applicant to develop the tolerance and skills he requires to interact with a broader range of people in social and commercial settings. I base that finding on Ms Rainey’s oral evidence, which I did not understand to be the subject of challenge.[33]
[33] Ms Rainey, oral evidence, Transcript page 17, line 17 -38.
With respect to the paragraph 34(1)(c) consideration I am not satisfied that an additional 36 days of STA constitutes value for money in that the cost of the support is reasonable. That is principally because the Applicant is currently utilising his Core Supports funding flexibly to purchase STA support at a rate equivalent to the additional support sought. That involves the Applicant foregoing the purchase of disability support worker in-home support, but it is FRBS(N)’s evidence that such support is unhelpful to her and unwanted. It is not contended that the flexible use of Core Support funding in this way gives rise to any insufficiency in in-home or other supports available to the Applicant. For the purposes of Rule 3.1(a) the permissible flexible use of the Applicant’s Care Supports funding would achieve, and is achieving, the same outcome as the requested additional STA at a substantially reduced cost, in that it does not involve additional expenditure of approximately $82,800.00.
With respect to the paragraph 34(1)(d) consideration I cannot see how additional STA would be effective and beneficial for the Applicant in circumstances where the permissible flexible use of his Core Supports funding achieves the equivalent beneficial outcome to that sought.
I accept in general terms that STA is effective and beneficial for the Applicant in terms of sustaining his principal informal support, FRBS(N), in her caring role, but cannot see any greater benefit accruing to him from this requested support to that he already has.
With respect to Rules 3.2 and 3.3 I was not taken by either party to any material of the kind referred to there, other than to FRBS(N)’s Statements of 14 March 2023 and 31 October 2023. In reaching the conclusion I have with respect to this criterion, I have accepted FRBS(N)’s evidence in relation to the demands and stressors that are associated with her care and supervision of FRBS and other family members.
With respect to the paragraph 34(1)(e) consideration I do not consider it reasonable to expect FRBS(N), as FRBS’ mother, to provide a high level of care and supervision of him without appropriate NDIS funded support. He is a 25-year-old man, not a young child. It is not normative for a parent to provide this level of care and supervision to an adult child. FRBS(N)’s ability to take regular breaks from her informal support role is critical to her being able to maintain this role. STA support for the Applicant is facultative of these breaks.
However, for the reasons I have explained, the provision of the requested support would not result in any greater degree of relief for FRBS(N) than the current flexible use of the Applicant’s Core Support funding for additional STA allows.
I also consider that the STA funding should not be considered in isolation. The Applicant’s SoPS is an integrated package of formal supports which includes substantial daily disability support worker assistance for in- and out-of-home activities, as well as clinical supports, being occupational therapy, exercise physiology and psychology. Those additional supports also provide relief to FRBS(N) from her care and supervision role in various ways. They occupy the Applicant in meaningful activity in and out of the home and assist in the development of plans and strategies to address his challenges.
It remains to consider Rule 7 of the Miscellaneous Rules. Had I found the additional STA support reasonable and necessary I would be satisfied that it is most appropriately funded by the NDIS. It is a NDIS Support as defined for the reasons stated above, and it is not available under any general system of support or from other support services.
For the foregoing reasons I cannot be satisfied that the requested additional funding for STA is a reasonable and necessary support that ought to be approved for inclusion in the Applicant’s SoPS.
Service provider transport
The Applicant seeks approval of funding of $13,910.40 for “non-labour costs for activity-based transport.[34] This amount is based on average weekly travel of 315kim and $0.92 per kilometre.[35]
[34] This was clarified in the Applicant’s Opening Statement, Transcript page 6, line 19. Elsewhere in the Applicant’s materials a figure of $15,069.00 appears.
[35] Applicant’s Statement of Facts Issues and Contentions, 15 March 2024 at [60].
The evidence in relation to this requested support is found in paragraphs [11] to [18] of FRBS(N)’s Statement of 31 October 2023 and in Tabs A8[36] and A10[37] of the Joint Tender Bundle.
[36] Page 344.
[37] Pages 347 to 362.
Tab A8 is a quotation provided for various supports by a disability service provider, which includes transport. The relevant line item in that quotation is identified as “Assistance with Com. Social and rec activity”, “non-labour costs for activity-based transport”. The “support level” described is “1:1” and the other parameters are “48 weeks”, “315kms” per week and “15120km” per year at a per kilometre rate of “0.92”.
Tab A10 is a “program example” provided for the Applicant by that disability service provider which sets out his activities between 25 May and 8 June (presumably in 2024). It identifies the “km travelled” in relation to those activities. There is also a detailed itemised account for travel during this period which itemises (in relation to travel), the category of support, the kilometres travelled, the per kilometre rate of transport charged and the total travel cost per item. 22 lines of this account relate to travel costs charged. 17 of those charge travel at 0.97cents per kilometre; 2 lines charge travel at 0.46cents per kilometre; 2 lines charge travel at 0.55cents per kilometre; and 1-line charges travel at $1.00 per kilometre. No explanation for these differing rates appears on the document itself.
In her Statement of 3 October 2023 FRBS(N) states in summary that since the Applicant was “banned” from participation in organised sport she has had to find alternative activity options for FRBS. These activities include bowling at a Bowling Alley in Wetherill Park 14kms from their home, golf variants at venues in Thornleigh and Penrith, attending a train museum in Thirlmere “a few times a year”, horse riding in Campbeltown “every couple of months” and events at a secret garden and nursery in Richmond several times a year. FRBS(N) says that it has been FRBS’ routine to go out on a Saturday since he turned 18, and if he did not do so, it would cause him stress and anxiety.

In the Statement of Facts Issues and Contentions filed on his behalf on 15 March 2024 it is stated:
63.Without the additional $13,910.40 to cover the service provider’s transport costs, the Applicant could have an estimated 217-hour reduction in support worker assistance per year which is approximately 4 hours per week.
64.The loss of 4 hours of support worker assistance per week could have a serious impact on the Applicant’s routine and will place a greater burden on [FRBS(N)].
How a failure to approve funding for this support would lead to a reduction in support worker assistance is not satisfactorily explained in the Applicant’s SoFIC or in any other evidence before me. I take it I am asked to infer that if this funding is not approved, the costs of transport will need to be covered from the Applicant’s Core Supports funding for social, economic and community participation, reducing the number of support worker hours that can be funded from that budget. I note that no witness was called in relation to this requested support and the FRBS(N) did not give specific oral evidence in relation to it (she did give oral evidence in relation to various activities FRBS participates in, but not in relation to transport costs associated with those activities).
The CEO is critical of the state of the evidence in relation to this requested support. It is submitted that despite the requests of her legal representatives, FRBS(N) has failed to particularise how this funding would be used if approved. The CEO was particularly critical of the evidence at tab A10 of the Hearing Bundle, highlighting the following apparent discrepancies in the “program example” table:
-Saturday 25 May – 10am to 4pm - a “train ride to Katoomba” is itemised at a 1:1 support ratio and 30kms with a pick-up from a specific Blacktown address that is 1.5kms from Blacktown Train Station, but 30km travel is claimed in relation to this activity,
-Monday 27 May – 10am – 3:30pm – “lunch and a walk in a park of [FRBS’] choice” is itemised at a 1:1 support ratio, which occurred at an oval that is 800m from FRBS’ home, yet 37km travel is claimed in relation to this and the following activity,
-Monday 27 May – 2 – 2:45pm – exercise physiologist training – at the same oval, where the transport costs of the exercise physiologist have been funded in the context of exercise physiology support.
-Tuesday 28 May - “bush walking group various park locations in the community” is itemised at a group 1:5 ratio, and “24km pick up and drop off” and “83km group” are estimated, but in the corresponding item of the itemised account 83kms has been charged by the disability support provider at the rate of 0.46cents per km.
The CEO also points to the five different per km rates that appear in the itemised account, all of which are different from the per km rate upon which the requested support is based. She submits that these discrepancies render the Applicant’s evidence in relation to this requested support unreliable and of little utility to the Tribunal’s statutory task. She submits that while the per item discrepancies may be relatively small, as multiplied over potentially hundreds of such charges over a year, they are significant.
Is additional funding for service provider transport support reasonable and necessary?
With respect to the paragraph 34(1)(a) consideration I am satisfied that transport for participation on social and community events would support the Applicant to pursue his first and sixth stated goals in his Statement of Goals and Aspirations. That is, it would support him to pursue social and community participation.
With respect to the paragraph 34(1)(b) consideration I am satisfied, as a general proposition, that funding for service provider transport to and from social and community participation activities will assist the Applicant to undertake activities to facilitate his social and economic participation.
The difficulties for the Applicant in obtaining approval for this requested support lie in the paragraph 34(1)(a) and (b) considerations. That is principally because on the state of the evidence:
i.It is impossible for me to know if, and if so why, there is an insufficiency in his existing funding for ‘assistance with social, economic and community participation’ support, which is substantial, being $180,600.38 per annum. On a prima facie basis that funding includes the costs of service provider transport, being a component of the cost of the support,
ii.It is impossible for me to know how the Applicant’s existing transport funding, which is a not insubstantial sum of $2,472.00 on an annual basis, is being utilised,
iii.The assertion that it is necessary for the Applicant to be supported to travel for the purposes of social and community participation 315km a week (or 15120km per year) is not supported by sufficiently probative evidence. On its face, this appears to be excessive. While some rationale appears in the evidence for longer trips to infrequent specific activities annually there is insufficient evidence to establish that this occurs on a weekly basis. Even if it did, it would be necessary to know why there are not local events the Applicant could attend which would be of an equivalent benefit to him,
iv.the evidence of costs of transport quoted and charged by the disability support provider appear unreliable in establishing the extent of travel and the rate at which it is charged, and
v.there would appear to be a degree of ‘double charging’ for transport costs by the disability support provider and the exercise physiologist.
Having regard to these difficulties I cannot be satisfied that this support constitutes value for money or that it is likely to be effective and beneficial for the Applicant having regard to Rules 3.1 to 3.3 and otherwise. The funding requested appears to be more in the nature of an ambit claim.
With respect to the paragraph 34(1)(e) consideration the CEO does not argue that this is a form of support that it is reasonable for the Applicant’s parents, or others to provide. I do not consider that it is. The Applicant is an adult. It is not reasonable to expect his parents to provide this type and level of support to him at his and their stage of life.
It remains to consider Rule 7 of the Miscellaneous Rules. The transport funding sought by the Applicant is a NDIS Support as defined for the reasons stated above.
However, public transport is a general system of support that is also available to him. While I accept the evidence of FRBS(N) and Ms Rainey which is to the effect that the Applicant’s potential for emotional and behavioural dysregulation make it difficult for him to travel on public transport, it appears that he nevertheless has travelled by train to Katoomba. I am thus of the view that at least some of the Applicant’s transport needs can be met by public transport rather than by the NDIS.
For the foregoing reasons I cannot be satisfied that the requested service provider transport funding is a reasonable and necessary support that ought to be approved for inclusion in the Applicant’s SoPS.
Exercise physiology
The Applicant requests funding for 91 hours of Exercise Physiology over a 12-month period at a cost of $15,140.43, which includes 2, 45minute sessions per week at a rate of $125.24 per session plus report writing and travel.
The Applicant’s current SoPS includes funding of $6,345.62 for 38 hours of Exercise Physiology over 12 months (pro-rated to the current 6 month plan period) which is constituted by funding for 14 weeks of twice weekly sessions which then taper, and 10 hours for the Exercise Physiologist to develop an exercise program for the Applicant which can be supervised by his disability support workers or informal supports.[38] In submissions on behalf of the CEO, it was said that the CEO considered this funding broadly to be in alignment with what had been recommended by the Applicant’s Exercise Physiologist.[39]
[38] Transcript page 48, lines 17 – 20.
[39] Transcript page 48, line 17 to page 51, line 30
In argument it also became apparent that because the Applicant’s SoPS had been renewed by the CEO’s decision of 5 July 2024 on equivalent terms to the earlier SoPS while this case remained before the Tribunal, that funding had been provided twice. [40] Because of the variation decision made on 12 May 2025 it has been further continued. That is, the Applicant has had the benefit of 3 lots of funding for 14 weeks of twice weekly Exercise Physiology which was then intended to taper subject to a delegated model under which disability support workers would partly supervise his exercise program (pro rata to 6 months under the current operative plan).
[40] Ibid.
The Applicant’s evidence in support of this requested support is found principally in a report dated 19 July 2023 written by an Exercise Physiologist working for an entity trading as ‘hwo’. The salient evidence in that report may be summarised as follows:
i.The Applicant’s referral for assessment for Exercise Physiology was to improve his general fitness to participate in organised sport, to maintain a healthy weight, and to improve his ability to regulate his emotions and mood,
ii.Exercise Physiology was recommended because it would assist the Applicant to meet his health and well-being goals, assist in providing structure to a typical day, and by allowing for positive behavioural change. Exercises would be tailored to the Applicant’s presentation and aimed at challenging thought patterns and increasing physical strength for participation in community-based activities,
iii.It is expected that with consistent attendance with twice weekly supervised Exercise Physiology sessions, the Applicant will have improved emotional regulation through his ongoing exposure to the community. Exercise Physiology sessions will specifically focus on increasing gross motor skills which will continue to be developed over a 6–12-month period with increasing difficulty in exercises. It is expected that the Applicant will have improved strength and fitness from his participation in Exercise Physiology.
iv.Without ongoing supports of Exercise Physiology or with a reduction in frequency, the Applicant may not be able to achieve these goals.
v.With further review, it may be appropriate that supports could reduce in frequency to once weekly to assist with independence. However, due to the Applicant’s condition, ‘it is vital that all sessions are supervised’.
FRBS(N) and Ms Rainey also gave oral evidence in relation to this support. In short summary, both expressed the opinion that continuation of this support at the rate of two sessions per week was necessary to enable the Applicant to maintain his fitness until he is able to rejoin an organised sport organisation from which he had been banned, and to develop his emotional regulation and social interaction skills such that he could recommence his participation in that organisation’s events.[41]
[41] FRBS(N)’s oral evidence, Transcript, page 10, line 39 – page 11 line 31; Ms Rainey’ oral evidence, Transcript page 18, lines 12 - 28
Is additional funding for Exercise Physiology support reasonable and necessary
With respect to the paragraph 34(1)(a) consideration I am satisfied that Exercise Physiology would support the Applicant to pursue the third, fourth, and sixth stated goals in his Statement of Goals and Aspirations. That is, it would assist him to pursue emotional regulation, improve his gross motor skills, support his efforts to continue to participate in an organised sporting organisation, and improve his physical strength, fitness and mood.
With respect to the paragraph 34(1)(b) consideration I am satisfied that Exercise Physiology will assist the Applicant to undertake activities that will facilitate his social and economic participation by improving his emotional regulation.
The difficulties for the Applicant in obtaining approval for this requested support lie in the paragraph 34(1)(a) and (b) considerations. That is principally because on the state of the evidence:
i.I cannot know with reasonable certainty what degree of benefit the Applicant has obtained from Exercise Physiology since his Exercise Physiologist wrote his report in July 2023. While FRBS(N) and Ms Rainey do report continuing benefit I have no objective evidence in terms of level of fitness, improvement in gross motor skills, and weight maintenance or loss, as examples. In term of emotional regulation and capacity for social interaction, the Applicant has deteriorated since that time in Ms Rainey opinion. She attributes that to his “banning” from an organised sports organisation.[42] However, if that is the case, I infer that Exercise Physiology has not been a protective factor that has prevented this deterioration.
ii.There is no evidence of any attempt to taper Exercise Physiology sessions by developing an exercise program for the Applicant that can be ‘supervised’ by his disability support workers or informal supports. I therefore cannot know if this less costly option is a feasible alternative to 2 sessions weekly of Exercise Physiology with and Exercise Physiologist.
[42] Ms Rainey’s oral evidence, Transcript, page 18, line 23.
The refusal or failure to attempt this delegated model of exercise leaves the question of whether the requested support constitutes value for money unresolved for the purposes of Rule 3.1(a). I cannot be positively satisfied that there isn’t a comparable support which would achieve the same outcome at a substantially lower cost.
Similarly, there is insufficient evidence to enable me to conclude, from an objective point of view, that Exercise Physiology is effective and beneficial for the Applicant. There has been no evaluation of the effectiveness and benefit of this program to date (at least, no such evaluation is in evidence).
I note I was not taken to any material of the kind referred to in Rules 3.2 and 3.3, other than the FRBS(N)’s Statements and oral evidence. With respect to that evidence, I accept the Applicant enjoys Exercise Physiology sessions, that it gives structure to his week, and that his participation in this activity reduces the demands of his care and support on FRBS(N). However, this evidence does not establish that the same outcomes could not be achieved under a delegated model of routine exercise developed by an Exercise Physiologist.
With respect to the paragraph 34(1)(e) consideration, I do not consider it reasonable to expect family members or other informal supports to provide Exercise Physiology to the Applicant. It is a specialist service. I consider in general terms that family and other informal supporters could supervise an exercise program for the Applicant under a delegated exercise program developed by an Exercise Physiologist. However, in the circumstances of this case, that should not be expected of FRBS(N) because she already has significant care and supervision responsibility for FRBS and the Applicant’s regular exercise with others outside of her care provides her with an important break from that role.
It remains to consider Rule 7 of the Miscellaneous Rules. Exercise Physiology is a NDIS Support as defined for the reasons stated above. It is not available to the Applicant in any general system of support or from other support services.
For the foregoing reasons I cannot be satisfied that the requested additional funding for Exercise Physiology is a reasonable and necessary support that ought to be approved for inclusion in the Applicant’s SoPS.
Orders
Having regard to these conclusions, I order:
(1)Pursuant to s 101(1)(a) of the Administrative Review Tribunal Act 2024 (Cth) the Application insofar as it seeks independent review of a decision of the respondent on internal review dated 1 September 2022, which was to vary an original decision to approve a Statement of Participant Supports to be included in the Applicant’s Participant Plan dated 23 June 2022, is dismissed on the basis that it no longer is of any substance.
(2)Pursuant to s 105(a) of the Administrative Review Tribunal Act 2024 (Cth) the operative decision under review, being the decision of the respondent to approve a Statement of Participant Supports dated 5 July 2024, as varied on 12 May 2025, is affirmed.

Date(s) of hearing: 31 October 2024, 18 February 2025

Solicitor for the Applicant:
Ms S Ghecham, Legal Aid New South Wales

Counsel for the Respondent: Mr N Swan

Solicitor for the Respondent: Ms I Heath, Maddocks Lawyers

[2025] ARTA 1294

8 August 2025

Key Legal Topics

Areas of Law

Administrative Law

Disability Law

Legal Concepts

Administrative Review

Reasonable and Necessary Supports

Fiduciary Duty

Standing

Judicial Review

Statutory Interpretation

Date(s) of hearing:	31 October 2024, 18 February 2025
Solicitor for the Applicant:	Ms S Ghecham, Legal Aid New South Wales
Counsel for the Respondent:	Mr N Swan
Solicitor for the Respondent:	Ms I Heath, Maddocks Lawyers