Gianakis and National Disability Insurance Agency (NDIS) - [2025] ARTA 515

Gianakis and National Disability Insurance Agency (NDIS) [2025] ARTA 515 (27 April 2025)

Decision and Reasons for Decision

Applicant/s: Ageliki Gianakis

Respondent: National Disability Insurance Agency

Tribunal Number: 2023/6804

Tribunal: General Member L Proske

Place: Adelaide

Date: 27 April 2025

Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that:

1. The statement of participant supports specifies the reasonable and necessary supports include:

a)120 hours of physiotherapy

b)Capital Supports Home Modification funding in the amount of $200,480.00 consisting of:

External access point $30,000.00

Ensuite $65,000.00

Floor levelling $40,000.00

3 door widenings $40,000.00

(external access point, bedroom, ensuite)

Site toilet (3 months) $ 4,000.00

Project management fees 12 per cent $21,480.00

2. The physiotherapy support listed at paragraph (1)(a) replaces Ms Gianakis’ existing funding for physiotherapy and Therapy Assistant Level 2.

3. All other supports in Ms Gianakis’ existing statement of participant supports, excepting any one-off assistive technology supports already used, are to be replicated pro-rate from the date the supports listed at paragraph (1) are included in Ms Gianakis’ statement of participant supports.

4. The management of funding for reasonable and necessary supports is to remain the same as the management of funding for those supports as specified in Ms Gianakis’ existing statement of participant supports.

5. The date the Respondent must reassess Ms Gianakis’ plan is to be 12 months after the date on which the supports in paragraph (1) are included in Ms Gianakis’ statement of participant supports.

Statement made on 27 April 2025 at 1:14pm

Catchwords
NATIONAL DISABLITY INSURANCE SCHEME – reasonable and necessary supports – physiotherapy – complex home modifications – value for money – effective and beneficial – decision set aside and remitted for reconsideration
Legislation
Administrative Appeals Tribunal Act 1975 National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024
Administrative Review Tribunal Act 2024
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 National Disability Insurance Scheme (Supports for Participants) Rules 2013
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024

Cases
Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Beezley v Repatriation Commission [2015] FCAFC 165 McGarrigle v National Disability Insurance Agency [2017] FCA 308 National Disability Insurance Agency v WRMF [2020] FCAFC 79
Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852
Secondary Materials

NDIS Guideline – Reasonable and Necessary Supports

NDIS Guideline – Home Modifications

Statement of Reasons

INTRODUCTION

The Applicant (Ms Gianakis) is 57 years old.1 She became a participant of the National Disability Insurance Scheme (NDIS) on 14 July 2020 based on impairments arising from Multiple Sclerosis (MS).2

1 Ms Gianakis’ Statement of Facts, Issues and Contentions (Ms Gianakis’ SFIC), [1].
2 Respondent’s Statement of Facts, Issues and Contentions (Respondent’s SFIC), [1].

BACKGROUND AND JURISDICTION

On 24 February 2023, the Chief Executive Officer of the National Disability Insurance Agency (Respondent) approved a statement of participant supports (SOPS) for inclusion in Ms Gianakis’ plan (original decision).3 On 25 May 2023, Ms Gianakis requested that the original decision be reviewed, and on 6 September 2022 a reviewer confirmed the original decision (internal review decision).4

On 14 September 2023, Ms Gianakis made an application to the Administrative Appeals Tribunal (AAT) for review of the internal review decision.5 The AAT had jurisdiction to review the internal review decision under s 103(1) of the National Disability Insurance Scheme Act 2013 (NDIS Act), in combination with s 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act).6

The Administrative Review Tribunal (ART) was established on 14 October 2024 and replaced the former AAT.7 Ms Gianakis’ review application was not finalised before the transition to the ART. Proceedings in the AAT that were not finalised before the transition to the ART must be continued and finalised by the ART.8 In this Statement of Reasons, the ART will hereafter be referred to as ‘the Tribunal’.

ISSUES ON REVIEW

The internal review decision considered whether Ms Gianakis’ SOPS should include funding for complex home modifications, increased funding for support worker assistance, and increased funding for physiotherapy.9

3 Exhibit 1(E1), 8, 208.
4 E1, 8, 90.
5 E1, 1.
6 All sections referred to in this Statement of Reasons, including in the footnotes, are sections in the National Disability Insurance Scheme Act 2013 unless otherwise stated.
7 s 8 of the Administrative Review Tribunal Act 2024.
8 Item 24, Part 5 to Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024.
9 E1, 8.

At the commencement of the hearing, the Tribunal sought to confirm with the parties which requested supports remained in issue. The parties advised the Tribunal that they had between themselves resolved the request for increased funding for support worker assistance, and what remained in issue were requests for funding for complex home modifications and increased funding for physiotherapy. Counsel for Ms Gianakis later confirmed Ms Gianakis was content with the existing funding for support worker assistance in her SOPS, the request for additional support worker assistance was not pressed, and paragraphs [22] and [23] of Ms Gianakis’ SFIC were withdrawn. The issue therefore to be determined by the Tribunal is whether the requested physiotherapy support and complex home modifications support are reasonable and necessary, and whether each of the criteria in s 34(1) are met in respect of those supports.10

LEGISLATION AND POLICY

The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Amending Act) commenced on 3 October 2024.11 The Amending Act made a range of amendments to the NDIS Act. Those amendments included, but were not limited to, the insertion of a new definition of ‘NDIS Support’ at s 10, an amendment to s 33(5) which prescribes what is required when deciding whether to approve a SOPS, amendments to s 34 which sets out criteria which must be satisfied in relation to reasonable and necessary supports, and amendments to ss 43 and 44 regarding plan management. Those provisions, as amended, apply to Ms Gianakis and any approval or variation of her SOPS.12

The objects of the NDIS Act, and the principles guiding actions under the NDIS Act, are set out in ss 3 and 4. In giving effect to the objectives of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.13

10 Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852, [29], [33].
11 s 2 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Amending Act).
12 Items 124, 129, 132 of the Amending Act.
13 s 3(3)(b).

Chapter 3 of the NDIS Act provides the statutory framework for individual plans under which NDIS supports will be funded for participants.14 Section 17A prescribes principles to which regard must be had when performing functions and exercising powers under Chapter 3 of the NDIS Act. 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 be guided by principles relating to plans set out in s 31. A participant’s plan must include the participant’s statement of goals and aspirations and SOPS.15

In deciding whether to approve a SOPS, the CEO or the Tribunal on review, must:

(a)have regard to the participant’s statement of goals and aspirations; and

(b)have regard to relevant assessments conducted in relation to the participant; and
(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and

(d)apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35;
(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.16

Section 34(1) provides that:
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) thesupport 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;

14 s 8.
15 ss 33(1), 33(2).
16 s 33(5).

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.

The Full Court of the Federal Court considered the phrase ‘reasonable and necessary support’ in National Disability Insurance Agency v WRMF [2020] FCAFC 79, stating:

‘the phrase connotes supports which meet a threshold which justifies – by reference to the context, objects and guiding principles of the Act and the facts of the case – the expenditure of public funds for that support, for a particular participant … [T]he phrase needs to be understood taking into account what has qualified a person as a participant, and the links between a person’s impairment and their full participation in the community…’17

Relevant to this application, the Minister has made the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports Rules) and the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Transitional Rules). These are an important part of the legislative scheme.18

Guidelines published on the NDIS website contain information about what the Respondent considers when making decisions under the NDIS. These are essentially policy documents. The Guidelines ‘Reasonable and Necessary Supports’ (Supports Guideline), ‘Creating your plan’ (Plan Guideline) and ‘What principles do we follow to create your plan?’ (Principles Guideline), and ‘Home Modifications’ (Home Modification Guideline) are relevant to this application. The Tribunal will take these into account unless there are cogent reasons not to.19

17 National Disability Insurance Agency v WRMF [2020] FCAFC 79, [149]-[151].
18 McGarrigle v National Disability Insurance Agency [2017] FCA 308, [43].
19 Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 420.

EVIDENCE AND SUBMISSIONS

The parties filed a joint tender bundle which included the T-Documents filed under s 37 of the AAT Act, and additional documents relied on by each of the parties. The joint tender bundle was received into evidence at the commencement of the hearing and marked ‘Exhibit 1’. The following documents were also received into evidence at the commencement of the hearing:

a) NDIS Guideline, Home Modifications updated 11 October 2022, marked ‘Exhibit 2’.

b) NDIS Guideline, Home Modifications updated 13 November 2024, marked ‘Exhibit 3’.

Each of the parties sought to tender further material after the hearing had commenced. Neither party raised any objection to this material being received into evidence. The following material was received into evidence during the hearing:

a) NDIS ‘Minor Home Modifications (MHM) Budget Levels (MMM 1 – 5), marked ‘Exhibit 4’.

b) Ms Gianakis’ NDIS plan for the period 28 January 2025 until 27 July 2025, marked ‘Exhibit 5’.

c) B Amayta et al, ‘Rehabilitation for people with multiple sclerosis: an overview of Cochrane Reviews (Review), Cochrane Database of Systematic Reviews, Issue 1, Art. No.: CD012732, marked ‘Exhibit 6’.

d) F Halabchi et al, ‘Exercise prescription for patients with multiple sclerosis; potential benefits and practical recommendations’, BMC Neurology (2017), marked Exhibit 7’.

e) P Hoang et al, ‘Exercise and Sports Scient Australia (ESSA) position statement on exercise for people with mild to moderate multiple sclerosis, Journal of Science and Medicine in Sport, Volume 25, Issue 2, 146-154, marked ‘Exhibit 8’.

f) Development Application, marked ‘Exhibit 9’.

g) Email from Mr Stouraitis to Ms Wilkins dated 11 February 2025, marked ‘Exhibit 10’.

The hearing was conducted by Microsoft Teams on 14, 15 and 16 January 2025, and 25 and 26 February 2025. Both parties were legally represented. Ms Gianakis, Mr Greg Stouraitis (Mr Stouraitis), Mr Nadar Zoljalali (Mr Zoljalali), Ms Maggie Killington (Ms Killington), Ms Janie McDonald (Ms McDonald), Ms Vivienne Jachmann (Ms Jachmann), Mr Michael Killington (Mr Killington) and Mr Davide Zerillo (Mr Zerillo) gave oral evidence at the hearing.

The Respondent filed a Statement of Facts, Issues and Contentions (Respondent’s SFIC) dated 28 November 2024. Ms Gianakis filed a Statement of Facts, Issues and Contentions (Ms Gianakis’ SFIC) dated 20 December 2024. The parties also made opening and closing submissions at the hearing.

The Tribunal has considered the written evidence, oral evidence and submissions referred to above at paragraphs [15] to [18].

CONSIDERATION

Physiotherapy

Ms Gianakis is requesting that her SOPS include funding for 3 hours of physiotherapy per week and contends that due to the complexity of her disability she requires physiotherapy from 2 practitioners who each provide distinct support.20 The Respondent contends 3 hours of physiotherapy per week is not reasonable and necessary, as it would not represent value for money or be effective and beneficial for Ms Gianakis.21 The Respondent further contends that 1 hour of physiotherapy and 1 hour of a therapy assistant is a reasonable and necessary support for Ms Gianakis, funding for which is already included in her SOPS.22

There are numerous recommendations for physiotherapy in evidence. Three occupational therapists – Ms Katherine Simpson (Ms Simpson), Mr Killington, and Mr Zerillo – have

20 Ms Gianakis’ SFIC, [24], [26].
21 Respondent’s SFIC, [21].
22 Respondent’s SFIC, [14]; Respondent’s opening submissions.

recommended an unquantified amount of physiotherapy for Ms Gianakis.23 Ms Simpson suggested this would help maintain Ms Gianakis’ physical skills and mobility for health, wellbeing, and full community participation; and Mr Zerillo suggested this would help maintain her balance, mobility, and movement.24 Dr Janakan Ravindran (Dr Ravindran), a neurologist, similarly opined it is imperative Ms Gianakis has ongoing physiotherapy to maintain her mobility as much as possible and undertake this safely such that she is not at further risk of falls and fracture.25

With respect to recommendations for physiotherapy, made by physiotherapists, Mr Tom Peters (Mr Peters) opined in February 2021 that physiotherapy, particularly neurological physiotherapy, will offer treatment techniques and exercise programs tailored to address Ms Gianakis’ balance and mobility issues, as well as work in conjunction with exercise physiology on appropriate exercise design.26 Mr Peters suggested monthly review with a physiotherapist would be appropriate.27 Ms Gianakis’ condition is however degenerative, and Mr Peters’ recommendation is now 4 years old. Ms Jachmann recommends a 1-hour session each week to treat the multiple structures causing pain, and 2 shorter sessions each week beyond injury and pain management aimed at maintaining the highest possible motor control and function.28 Ms Jachmann gave oral evidence that a 1-hour session each week allows sufficient time for her to work on multiple areas, as is required for Ms Gianakis. Ms MacDonald recommends 2 hours per week of supervised exercise therapy.29 In oral evidence, Ms MacDonald said she can only recommend how often Ms Gianakis needs exercise rehabilitation and with respect to that she would recommend 2 sessions each week. Dr Killington recommends physiotherapy 3 times a week to treat visual, vestibular, motor control and balance deficits, to improve balance responses and reduce risk of falls in the future and maximise Ms Gianakis’ function.30

23 E1, 65, 94, 714.
24 E1, 65, 714.
25 E1, 530.
26 E1, 426.
27 E1, 426.
28 E1, 599; Ms Jachmann’s oral evidence.
29 E1, 595.
30 E1, 614.

Ms Gianakis gave evidence that at the time of the hearing she was having a 45-to-60-minute physiotherapy session with Ms MacDonald on Mondays and Thursdays; a 60-minute physiotherapy session with Ms Jachmann on Thursdays; and a 60-minute neuro- physiotherapy session with Dr Killington each Friday fortnight.31 Ms Jachmann and Dr Killington gave oral evidence consistent with this. Ms MacDonald’s oral evidence was that her twice weekly sessions with Ms Gianakis run for 45 to 50 minutes. Ms Gianakis attends sessions with Ms MacDonald and Ms Jachmann at their respective studios, whilst Dr Killington attends on Ms Gianakis at home.32 Ms Gianakis has been treated by Ms Jachmann for a number of years, Ms MacDonald for approximately 2 years, and Dr Killington for almost 1 year.33 With respect to the duration of Ms Gianakis’ sessions with Ms MacDonald, the Tribunal considers Ms MacDonald is best placed to accurately report on that and finds each of those sessions takes between 45 to 50 minutes. The Tribunal otherwise generally accepts the evidence as outlined in this paragraph.

Ms Jachmann is Ms Gianakis’ treating physiotherapist. Her evidence is that due to the motor loss through Ms Gianakis left side, she significantly compensates with the rest of her body to maintain the ability to function, carry out simple self-care and mobilise.34 The consequent muscle loss and control, and subsequent compensation strategies, result in severe pain and strain injury through her hips, pelvis, lower back, neck and shoulders.35 Therapy provided by Ms Jachmann aims to reduce Ms Gianakis’ pain, restore and maintain full joint range of movement, and reduce impact to overused tendons and ligaments causing tendonitis and joint inflammation.36 The overall therapeutic goal is to maintain the highest level of function and capacity possible with Ms Gianakis’ degenerative condition through reducing pain and unnecessary physical adaptions.37 Ms Jachmann employs PNF stretching, specific soft tissue release, joint mobilisation, hold-relax muscle techniques, MET muscle release technique, manual traction, therapeutic exercise, and education in relation to posture, patterns of movement for walking, transfers, standing and sitting.38

31 Ms Gianakis’ oral evidence; Ms MacDonald’s oral evidence; Ms Jachmann’s oral evidence; Dr Killington’s oral evidence.
32 Ms Gianakis’ oral evidence; Dr Killington’s oral evidence.
33 Ms Jachmann’s oral evidence; Ms MacDonald’s oral evidence; Dr Killington’s oral evidence.
34 E1, 76, 599; Ms Jachmann’s oral evidence.
35 E1, 76, 599; Ms Jachmann’s oral evidence.
36 E1, 600; Ms Jachmann’s oral evidence.
37 E1, 600; Ms Jachmann’s oral evidence.
38 E1, 600; Ms Jachmann’s oral evidence.

Ms Jachmann opined that left untreated, Ms Gianakis’ pain would further reduce her functional capacity, independence, and ability to engage in strengthening exercises essential to her management.39 Ms Jachmann gave oral evidence that Ms Gianakis’ pain can reduce after a session, and she believes there has been some success in reducing the amount of pain Ms Gianakis experiences outside of sessions. Progress is measured with a subjective pain scale, assessment of functional range of movement, and movement patterns.40 She reported that Ms Gianakis’ sustained level of function, her recovery of function following severe fractures, and the lack of progression of her tissue injuries, evidence progress towards her therapeutic goals.41

Ms MacDonald’s evidence is that she provides Ms Gianakis with exercise rehabilitation to maintain strength, endurance and mobility required for daily function.42 This involves supervised and assisted exercise therapy using a Pilates reformer and other equipment.43 The therapeutic goal is to delay the impacts of disease progression on function.44 With respect to progress, Ms MacDonald stated she uses measures such as gait pattern and quality of gait as best she can however such measures are not very reliable because of the nature of Ms Gianakis’ condition.45 Ms MacDonald stated it would be unreasonable to aim for significant increases in strength in specific muscle groups within the context of Ms Gianakis’ condition, and opined that Ms Gianakis’ day to day function would be deteriorating more rapidly were it not for regular sessions in clinic.46 Ms MacDonald stated that there is no way to prove this without withholding treatment, but that her opinion with respect to this is based on 25 years of clinical experience as a physiotherapist.47

Dr Killington’s evidence is that when treating Ms Gianakis, she does some aerobic and strength work, but generally focuses on postural responses and balance responses.48 Her treatment involves hands-on facilitation of Ms Gianakis’ safe weight shift and proper

39 E1, 76; Ms Jachmann’s oral evidence.
40 E1, 600.
41 E1, 600.
42 E1, 76.
43 Ms MacDonald’s oral evidence.
44 E1, 76; Ms MacDonald’s oral evidence.
45 Ms MacDonald’s oral evidence.
46 E1, 595.
47 E1, 595.
48 Dr Killington’s oral evidence.

postural responses.49 Dr Killington reported she would not expect a lot of change with 1 hour of therapy each fortnight, but that Ms Gianakis remains stable physically.50 She opined that Ms Gianakis’ hand skills have improved which has led to improved functionality in day- to-day activities, but that her balance has not improved.51 Dr Killington gave oral evidence that whilst you can measure response to therapy in terms of effort and fatigue level, she has not measured this.

Both Ms MacDonald and Ms Jachmann maintain they have distinctly different therapeutic goals and employ different interventions with respect to Ms Gianakis.52 When asked whether there was some overlap between what she does with Ms Gianakis, and what Ms Jachmann and Ms MacDonald do with Ms Gianakis, Dr Killington gave oral evidence she hopes there is some overlap because Ms Gianakis’ balance requires a lot of work.53

With respect to the physiotherapy Ms Gianakis is currently accessing:

a) The Tribunal accepts that the hands-on therapy provided by Ms Jachmann, and the exercise therapy provided by Ms MacDonald, have different therapeutic goals, and involve different interventions. However, the Tribunal finds that there is some overlap between the therapy Dr Killington provides to Ms Gianakis, and the therapy provided by Ms Jachmann and Ms MacDonald respectively.

b) The Tribunal accepts that within the context of a degenerative condition, Ms Gianakis’ response to therapy cannot reasonably be expected to resemble ‘progress’ in the typical sense, and ‘progress’ for Ms Gianakis is the optimisation of her function and capacity.

c) The Tribunal found Ms Jachmann and Ms MacDonald to be frank and credible witnesses whose evidence has been consistent over time. The Tribunal accepts that as physiotherapists with many years of clinical practise and well-established clinical relationships with Ms Gianakis, Ms Jachmann and Ms MacDonald are well placed to assess and report on Ms Gianakis’ response to therapy over time, and to opine on the

49 Dr Killington’s oral evidence.
50 Dr Killington’s oral evidence.
51 Dr Killington’s oral evidence.
52 E1, 76; Ms Jachmann’s oral evidence; Ms MacDonald’s oral evidence.
53 Dr Killington’s oral evidence.

likely outcome for Ms Gianakis had she not had access to therapy. The Tribunal accepts that whilst it is difficult within the context of a degenerative condition to quantify with specificity the extent to which Ms Gianakis has benefited from therapy to date, she has benefited from it, and her function and capacity would have declined more rapidly had she not had access to such therapy.

d) The Tribunal accepts Dr Killington’s evidence that Ms Gianakis’ hand skills have improved but her balance has not, despite Dr Killington’s focus on postural and balance responses.

Ms Jachmann gave evidence that home exercise is not a significant component of the therapy she provides Ms Gianakis due to the nature of her condition, the importance that exercise is completed in a very specific way, and the fact she is a very high falls risk.54 Ms Jachmann explained that only a registered physiotherapist can provide the therapy she delivers to Ms Gianakis; a delegated model of care is not appropriate; and one of the main problems with people when they have motor loss due to MS is that they go into compensation strategies which can do more harm than good, and this is why supervision by a physiotherapist or someone trained in that way is important.55

Dr Killington reported that Ms Gianakis’ MS has resulted in a very complex clinical picture, and opined it is essential that she be provided rehabilitation intervention by a qualified and experienced physiotherapist rather than a support worker, trainee physiotherapist, or similar unregistered person.56 Dr Killington, who provides therapy to Ms Gianakis in her home, gave oral evidence her home is currently unsuitable for home exercise hence she is unable to undertake any consolidation exercise at home safely. Dr Killington also gave evidence the support she is providing Ms Gianakis cannot be provided by a therapy assistant due to the complexity of her adaptions to movement. She stated Ms Gianakis compensates a lot so someone with an untrained eye would not necessarily pick up on those compensations.57

54 Ms Jachmann’s oral evidence.
55 E1, 603; Ms Jachmann’s oral evidence.
56 E1, 318.
57 Dr Killington’s oral evidence.

Ms MacDonald opined Ms Gianakis requires 1:1 instruction/supervision from a physiotherapist, both due to the nature of the exercises and for safety reasons.58 In addition to being a high falls risk, Ms MacDonald stated it is important to understand that Ms Gianakis’ function fluctuates on a daily basis and as a result her program varies from session to session according to what she is capable of on the day.59 Accordingly, she opined a set program of exercise is not appropriate in Ms Gianakis’ case as neurological conditions are affected by a multitude of factors.60 Ms MacDonald also opined that group therapy sessions would not be appropriate or safe for Ms Gianakis; it would be inappropriate for her to attend a gym or fitness facility, or to exercise unsupervised; and carers are not qualified to supervise or prescribe exercise and this would present safety concerns for a neurological patient.61

On the basis of evidence provided by Ms Jachmann, Ms MacDonald and Dr Killington as outlined in paragraphs [30] to [32], the Tribunal accepts that due to the nature of Ms Gianakis condition together with her complex clinical presentation, she is extremely limited in what she can do on her own at home to consolidate the therapy they each provide; her therapy needs to be developed, delivered and supervised by a registered physiotherapist; and a therapy assistant is not sufficiently skilled to pick up on compensations or nuance her program on each occasion as may be required.

It is not in contest between the parties that the physiotherapy support sought on review meets the requirements in ss 34(1)(aa), 34(1)(a), and 34(1)(b).

Ms Gianakis was granted access to the NDIS based on impairments arising from MS which is a degenerative, neurological condition.62 The evidence overwhelmingly establishes that because of MS, Ms Gianakis has left side weakness, reduced strength and coordination, poor balance and high levels of fatigue.63 The increased physiotherapy support sought on review is to address needs arising from those impairments. The Tribunal is satisfied the physiotherapy support sought on review is necessary to address needs of Ms Gianakis

58 E1, 75.
59 E1, 75.
60 E1, 75.
61 E1,75, 596, 598.
62 Ms Gianakis’ SFIC, [10]; Respondent’s SFIC, [2].
63 E1, 424; 489, 531-532, 553, 599, 613, 616, 622

arising from an impairment in relation to which she meets the disability requirements. Accordingly, the requirement in s 34(1)(aa) is met.

Ms Gianakis’ plan includes 12 goals. Included amongst those are that Ms Gianakis would like to improve her mobility and safety at home and in the community; improve her physical functional capacity and to be more confident in doing things independently; and improve and maintain her emotional and physical wellbeing including her ability to cope with her changing body and function.64 Having considered the therapeutic goals of Ms Gianakis’ physiotherapy as referred to above, and the contribution of such therapy towards the optimisation of Ms Gianakis’ function and capacity to date, the Tribunal is satisfied the physiotherapy support sought on review will assist Ms Gianakis to pursue the goals, objectives and aspirations included in her statement of goals and aspirations. For similar reasons, the Tribunal is satisfied the support will assist Ms Gianakis to undertake activities, so as to facilitate her social and economic participation. Accordingly, the requirements in ss 34(1)(a) and 34(1)(b) are met.

Based on findings as outlined at paragraph [33], contrary to the Respondent’s submission, the Tribunal does not accept that a therapy assistant implementing a program developed and overseen by a physiotherapist is a comparable support for Ms Gianakis. Further, based on findings as outlined at paragraph [29], the Tribunal is not persuaded Ms Gianakis has achieved any better outcome to date from accessing approximately 3 hours per week physiotherapy – that being 1 hour per week with Ms Jachmann, approximately 1.5 hours per week with Ms MacDonald, and 1 hour per fortnight with Dr Killington – than she would have otherwise achieved from accessing 2.5 hours per week – that being 1 hour per week with Ms Jachmann and 1.5 hours per week with Ms MacDonald. For these reasons, the Tribunal finds that 2.5 hours per week of physiotherapy is a comparable support which would achieve the same outcome at a substantially lower cost.65

Ms Gianakis is committed to maintaining her function, capacity, and independence to the extent possible within the context of her diagnosis. At paragraph [29] the Tribunal accepted Ms Gianakis has benefited from physiotherapy to date, and that her function and capacity would have declined more rapidly had she not had access to such therapy. Optimising Ms

64 Exhibit 5.
65 r 3.1(a) of the Supports Rules.

Gianakis’ function and capacity will support her to maximise her independence for as long as is possible within the context of her degenerative condition. This is, to the Tribunal’s mind, evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, Ms Gianakis.66

Given the degenerative nature of Ms Gianakis’ condition, and based on the therapeutic goals as outlined above, the Tribunal finds the support will not increase Ms Gianakis’ independence and reduce her need for other kinds of support.67 However, by supporting Ms Gianakis to maintain her function and capacity, the Tribunal is persuaded the support will likely delay Ms Gianakis’ reliance on more costly supports, such as additional support worker assistance.68 For this reason, the Tribunal finds that funding the support is likely to reduce the cost of the funding of supports for Ms Gianakis in the long term.69

The Tribunal does not consider those matters in rr 3.1(d) and 3.1(e) bear upon whether the physiotherapy support sought on review represents value for money.

Having considered the Tribunal’s findings at paragraphs [37] to [39], and the weight to be given to each of those, the Tribunal is not positively persuaded that 3 hours of physiotherapy per week does represent value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support. 70 The Tribunal is however satisfied that 2.5 hours per week of physiotherapy for 48 weeks per year represents value for money (physiotherapy support). The Tribunal considers that 48 weeks rather than 52 weeks will account for weeks when Ms Gianakis is for any reason unable to access or attend physiotherapy sessions. Accordingly, the requirement in s 34(1)(c) is met on that basis.

Section 34(1)(d) requires the support will be, or is likely to be, effective and beneficial for Ms Gianakis, having regard to current good practice. The Respondent contends 1 hour of physiotherapy per week plus one hour of supervised therapy with a therapy assistant would

66 r 3.1(b) of the Supports Rules.
67 r 3.1(f) of the Supports Rules.
68 r 3.1(c) of the Supports Rules.
69 r 3.1(c) of the Supports Rules.
70 s 34(1)(c).

meet Ms Gianakis’ needs; and that this is already funded in Ms Gianakis’ SOPS.71 The Respondent contends that the number of hours of physiotherapy support sought on review will not be, or is not likely to be, effective and beneficial for Ms Gianakis.72

The Tribunal has found that Ms Gianakis’ therapy needs to be developed, delivered and supervised by a registered physiotherapist; and that a therapy assistant is not sufficiently skilled to pick up on the compensation or nuance her program on each occasion as may be required. The Tribunal has also found that progress for Ms Gianakis is the optimisation of her function and capacity, that she has benefited from physiotherapy to date, and that her function and capacity would have declined more rapidly had she not had access to such support. For these reasons, the Tribunal is satisfied the physiotherapy support will be, or is likely to be, effective and beneficial for Ms Gianakis.

The Tribunal has found the support needs to be provided by a registered physiotherapist. It follows that the Tribunal is satisfied the funding of the physiotherapy support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide. Accordingly, the requirement in s 34(1)(e) is met.

Section 34(1)(f) requires the support is an NDIS support for Ms Gianakis. The Respondent submits that physiotherapy intervention utilised to recover function after bone fractures, is a time-limited, recovery-orientated therapy, and is generally not an NDIS support for the purpose of s 10 of the Act.73

The Tribunal is satisfied based on the evidence and findings as outlined above that separate to any need Ms Gianakis may have for physiotherapy support following a fracture sustained in a fall, she requires the physiotherapy support to maintain her functional capacity in areas such as mobility, movement and functioning.74 The Tribunal is satisfied the physiotherapy support is therefore not a time-limited, recover-orientated therapy where the predominant purpose is treatment directly related to Ms Gianakis’ health status, or that are provided after a recent medical or surgical event, with the aim of improving the person’s functional status,

71 Respondent’s SFIC, [14]-[21]; Respondent’s closing submissions.
72 Respondent’s SFIC, [14]-[21]; Respondent’s closing submissions.
73 Respondent’s SFIC, [20(a)].
74 Item 34 in the table at cl 1 of Sch 1 to the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (NDIS Supports Transitional Rules).

including post-acute rehabilitation or post-acute care.75 The Tribunal is therefore satisfied the physiotherapy support is an NDIS support for Ms Gianakis. The physiotherapy support therefore meets the requirement in s 34(1)(f).

The Tribunal is satisfied that the physiotherapy support is reasonable and necessary and meets the requirements in s 34(1). It follows that the physiotherapy support is a reasonable and necessary support and will be funded in Ms Gianakis’ SOPS.

Complex home modifications

Ms Gianakis is requesting that her SOPS include funding for complex home modifications as per the scope of works prepared by Maxi Corp Developments, and/or National Disability Building Services (NDBS) and Toro Constructions (proposed scope of works).76

The Respondent contends the proposed scope of works does not represent value for money, and that specific components within the proposed scope of works will not be effective and beneficial for Ms Gianakis.77 The Respondent does however accept that Capital Supports Home Modifications funding in the amount of $225,649 consisting of the following, is reasonable and necessary:78

External access point $30,000.00

Ensuite $65,000.00

Bedroom and 3 door widenings

(access point bedroom bathroom) $40,000.00

Floor levelling (at rear) $40,000.00

Kitchen $16,653.00

Laundry $9,482.00

Site toilet during construction (3 months) $4,000.00

Project management fees 10% $20,514.00

TOTAL $225,649.00

75 Item 12 in the table at cl 1 of Sch 2 to the NDIS Supports Transitional Rules.
76 Ms Gianakis’ proposed order filed 4 March 2025; Ms Gianakis’ SFIC, [60]; E1, 558-560, 611-612, 655-680.
77 Respondent’s SFIC, [31]; Respondent’s closing submissions.
78 Respondent’s proposed order filed 11 March 2025.

Proposed scope of works

The proposed scope of works includes the following:

a) Ms Gianakis’ bedroom will be relocated and an accessible ensuite will be created.

b) A new family bathroom will be created.

c) An accessible entry point will be created.

d) The floor in the existing home will be levelled.

e) An extension will be added to the rear of the existing property which includes a fully accessible laundry, kitchen, dining area, and living area.79

In addition to the proposed scope of works, Ms Gianakis plans to self-fund a garage, rear veranda, pool, spa and pool fencing; and she is also contributing to tiling, joinery, benchtops, appliances, sanitaryware and tapware.80

Existing home

Ms Gianakis lives with her husband (Mr Gianakis) in a privately owned single storey home purchased in 2004 (existing home). Their adult daughter goes between the existing home and her partner’s home, whilst their adult son is married and lives independently. The home is in a heritage conservation area.81

The existing home has 3 bedrooms, a study, a formal dining room, a lounge room, a bathroom, a kitchen, a laundry, and a storeroom.82

79 E1, 116, 119, 121-124, 145,162-163, 442, 665-667.
80 E1, 176, 611, 624, 625, 627, 699; Exhibit 10; Ms Gianakis’ SFIC, [33]; Ms Gianakis’ closing submissions.

81 E1, 70, 630.
82 E1, 144.

Ms Gianakis’ evidence is the existing home is currently not accessible inside or outside with a wheelchair or walker and is not safely accessible with walking aids.83 The only part of the existing home that is wheelchair accessible is the hallway, and she cannot independently enter the kitchen, bathroom, laundry, dining or outdoor areas because of steps, different levels, tripping and egress hazards.84 She reports having had numerous falls, which have resulted in a broken arm, wrist, patella and cracked ribs.85 She has had incontinence incidents trying to mobilise the distance from her bedroom to the bathroom, and she cannot use the shower which is sited over a curved base bath.86 Her stellar wheelchair is narrow enough to fit through the existing doorways however it cannot go up steps and the size and angles of the existing spaces are problematic for the wheelchair’s turning circle.87

Mr Killington is an occupational therapist. Mr Killington reported:

a) Access through the front of the house requires navigating 2 steps and Ms Gianakis must hold onto the veranda post and building structure to enter and exist.88 Rear access requires navigating a step and Ms Gianakis must hold onto the door frame and sliding door to enter and exit.89 Both rear and front access is unsafe and increases Ms Gianakis’ risk of falls.90

b) The bathroom is grossly inadequate for Ms Gianakis’ current and future physical needs.91 The existing footprint does not facilitate adequate circulation space for toileting and bathing with support from a mobility aid.92 Ms Gianakis sits on the toilet and uses a flannel to sponge herself for hygiene which is inadequate.93

83 E1, 309, 315, 539.
84 E1, 553, 555, 636l
85 E1, 553.
86 E1, 555.
87 Ms Gianakis’ oral evidence.
88 E1, 441, 444; Mr Killington’s oral evidence.
89 E1, 441; Mr Killington’s oral evidence.
90 E1, 441; Mr Killington’s oral evidence.
91 E1, 441, 445.
92 E1, 616.
93 E1, 616, 617.

c) The threshold into the laundry and the kitchen is a tripping hazard, and the kitchen cupboards are unsuitable for her to access.94

d) Multiple internal levels within the home are problematic for Ms Gianakis and increase her risk of falls.95 Ms Gianakis has had numerous falls in the kitchen, bathroom, laundry, and when mobilising from her bedroom to the bathroom.96

e) Ms Gianakis’ current bedroom is a significant distance from the bathroom, and she has had frequent occurrences of bowel and bladder incontinence and numerous falls when mobilising the distance.97

f) The existing 820mm doorway width would provide sufficient access for a wheelchair for Ms Gianakis’ size.98

Mr Zerillo is an occupational therapist who was engaged by the Respondent to complete a functional capacity assessment and respond to specific questions.99 Mr Zerillo reported:

a) He observed Ms Gianakis transferring into her home via the front entry, and described the process as unsafe, placing Ms Gianakis and her support network at significant risk.100 Installing a ramp at the rear door is possible given there is sufficient space to achieve a top landing, ramp and safe path of travel from the bottom of the ramp to a carparking space.101

b) The bathroom is located approximately 20 metres from Ms Gianakis’ bedroom and increases difficulty for her getting to the bathroom given her mobility concerns.102 She

94 E1, 446, 447, 629; Mr Killington’s oral evidence.
95 E1, 441.
96 E1, 446.
97 E1, 445.
98 Mr Killington’s oral evidence.
99 E1, 684.
100 E1, 691.
101 E1, 701.
102 E1, 708.

also experiences incontinence episodes when she cannot get to the bathroom quickly enough.103

c) Ms Gianakis had not been able to bath or shower in her home for at least 12 months.104 The bathroom lacks sufficient circulation space for Ms Gianakis and her support network.105

d) Ms Gianakis cannot access the kitchen due to the step to enter the area. The kitchen lacks sufficient under bench clearance to complete tasks safely, bench heights are not adjustable to accommodate a seated height, and it lacks storage or shelving that is accessible from a wheelchair.106

e) Ms Gianakis cannot access the laundry due to multiple environmental barriers.107

Mr Stouraitis is a builder and architect, and the director of Maxi Corp Developments.108 Mr Stouraitis reported:

a) Access through the front of the existing home is simply not possible via a wheelchair.109

b) The existing home and layout do not accommodate any wheelchair access.110 It has 5 different levels of varying heights within the hallway which are dangerous.111 The only access into the laundry and kitchen is via a step which is a major tripping hazard.112 A ramp into the existing kitchen will create a tripping hazard and impede on the meals area.113

103 E1, 708.
104 E1, 709.
105 E1, 709.
106 E1, 710.
107 E1, 711.
108 E1, 560; Mr Stouraitis’ oral evidence.
109 E1, 157.
110 E1, 162.
111 E1, 17, 161.
112 E1, 160, 626.
113 E1, 626.

c) The bathroom is not wheelchair accessible and is too small to be modified. The shower sits over the bath and the bathroom layout is dangerous for anybody with balance and visual impairment.114

Mr Hopkins is a building surveyor.115 Mr Hopkins reported:

a) It is fortunate Ms Gianakis is of a slight build and with the aid of the modern Stellar wheelchair (640mm wide) many of the internal door widths (820mm) will not require modification.116

b) The rear of the existing family home has obviously been modified over the years by previous owners and the result is a mismatch where the existing kitchen floor levels are at odds with the hallway and the meals area, with slopes and gradients in all directions which cannot be overcome with a ramp.117

c) The easiest way to address the different floor levels in the existing home would be to take up the flooring (such as tiles in the kitchen and meals area) to get down to subbase and then pour a whole new floor in that area.118

Mr Zoljalali of NDBS is a civil engineer and an accredited project manager.119 He reported that door widening and floor levelling are critical to ensuring Ms Gianakis can navigate her home safely in a wheelchair.120 In oral evidence, Mr Zoljalali confirmed that he understood from his site visit with a builder that not all doorways in the existing home will need to be widened; he could not exactly recall the number and location of existing doorways that needed to widened; the doorways in Ms Gianakis’ new bedroom would need to be widened. Mr Zoljalali estimated the base level cost to level the floors would be $40,000.00, and on this basis the Tribunal infers he was of the view floors in the existing house could in fact be levelled.121

114 E1, 161.
115 E1, 633.
116 E1, 631.
117 E1, 631.
118 Mr Hopkins’ oral evidence.
119 Mr Zoljalali’s oral evidence.
120 E1, 658.
121 E1, 667.

The Respondent accepts the existing home does need modifications to the kitchen, bathroom, laundry and meals area to make those rooms accessible for Ms Gianakis, both in terms of getting into the rooms and using those rooms once she is in them.122 The Respondent also accepts a modification is required so that Ms Gianakis can enter and exit the home.123

Based on evidence referred to in paragraphs [53] to [59], the Tribunal finds as follows:

a) The kitchen, bathroom, laundry and meals area in the existing home do require modification so those spaces are accessible.

b) Ms Gianakis cannot safely or independently enter and exit the existing home.

c) The existing bathroom cannot be modified to be accessible for Ms Gianakis, and Ms Gianakis needs access to a bathroom within proximity of her bedroom.

d) The multiple floor levels in the existing home prevent Ms Gianakis from being able to independently or safely access vital rooms and this issue cannot be overcome with ramps. Based on evidence referred to at paragraphs [58] and [59] from Mr Hopkins and Mr Zoljalali, the Tribunal accepts the floor can be levelled.

Is the proposed scope of works reasonable and necessary?

It is not in contest between the parties that the proposed scope of works meets the requirements in ss 34(1)(aa), 34(1)(a), and 34(1)(b).124 On the material before it, the Tribunal is similarly satisfied of this.

The key issue in contest between the parties is whether the proposed scope of works is value for money.125

122 Respondent’s closing submissions.
123 Respondent’s proposed order dated 11 March 2025.
124 Respondent’s closing submissions.
125 s 34(1)(c).

The proposed scope of works was quoted by Mr Stouraitis of Maxi Corp Developments on
22 June 2023, 12 December 2023, and 25 March 2024.126 In 22 June 2023 and 12 December 2023 Mr Stouraitis quoted $598,250.00 for the total building contract sum including all PC Sums.127 These quotes are broken down into progress payment amounts payable at different stages of the build, rather than being itemised so as to include the cost of each component of the modification.128 On 25 March 2024, Mr Stouraitis reported that due to delay and increased building prices, the total building contract sum had increased by $75,000.00 (excluding those components to be supplied by Ms Gianakis).129 This would bring the total building contract sum to approximately $673,250.00 as at 25 March 2024. Mr Stouraitis indicated in oral evidence the total building contract sum will have further risen with time, and he also indicated as much in an email to Ms Wilkins dated 11 February 2025.130

In preparing his report dated 24 September 2024, Mr Zoljalali engaged Toro Constructions, a licensed builder, and together they came up with a breakdown of and quotation for the proposed scope of works.131 The Toro Constructions quote totalled $673,750.00 (inc GST) and is not itemised so as to include the cost of each component of the modification.132 Using that quote, Mr Zoljalali completed a scope of work and quotation proforma.133 On that proforma, consistent with the Toro Construction’s quote, Mr Zoljalali quoted a grand-total of
$673,750.00.134 Mr Zoljalali also itemised on that proforma what work is required and what the cost will be for external access and works, internal modifications (general), kitchen/laundry modifications, bathroom and ensuite modifications, bedroom modifications, new external concrete slab, structural work, and final compliance and finishing.135

In oral evidence, Mr Zoljalali confirmed the $100,000.00 he had quoted for the ensuite bathroom, in fact included the ensuite bathroom and the new family bathroom. He estimated

126 E1, 176, 560, 612.
127 E1, 176, 559.
128 E1, 176-177, 560; Home Modifications Guideline, 16.
129 E1, 612.
130 Exhibit 10 (E10).
131 E1, 665-680; Mr Zoljalali’s oral evidence.
132 E1, 672-680.
133 E1, 690-671; Mr Zoljalali’s oral evidence.
134 E1, 671.
135 E1, 669-671.

that of that $100,000.00, $65,000.00 was attributable to the accessible ensuite. Mr Zoljalali also gave evidence that in addition to the amount he had quoted, a site-toilet would be required for 12 weeks, and that the set-up, maintenance, and removal of that would cost
$4,000.00; and the proposed modifications require a project manager to oversee the entire process. Project management costs vary between 9 to 15 percent. Ms Zoljalali further confirmed in oral evidence that once more detailed drawings are completed, the work will need to be re-costed.

Based on the above quotes, an approximate cost of the proposed scope of works is somewhere between $673,750.00 and $755,000.00. By any measure, this is a very significant cost.

When considering whether the proposed scope of works represents value for money, the Tribunal must consider each of those matters prescribed in r 3.1 of the Supports Rules.

The proposed scope of works includes relocating Ms Gianakis’ bedroom and creating an accessible ensuite; converting the existing bathroom and hallway into a walk-in robe that would form part of Ms Gianakis’ relocated bedroom; and creating a new bathroom for other family members. In closing submissions, counsel for Ms Gianakis submitted the new bathroom was also intended to ensure Ms Gianakis has a toilet in proximity when she is in rooms other than her relocated bedroom which will have an accessible ensuite. The Tribunal notes that neither Mr Killington or Mr Zerillo made any clinical recommendation that Ms Gianakis requires an accessible toilet or bathroom, in addition to an accessible ensuite. Nor did they suggest Ms Gianakis requires a walk-in-robe. The Tribunal is not persuaded on the material before it that a walk-in-robe, or a new bathroom in addition to an accessible ensuite, would substantially improve the life stage outcomes for, and be of long- term benefit to, Ms Gianakis.136 With those exclusions, the Tribunal accepts the proposed scope of works will substantially improve the life stage outcomes for, and be of long-term benefit to, Ms Gianakis.137

Whilst the proposed extension involves the provision of modifications, those modifications are not of themselves something that could be leased instead of purchased; and there is no

136 r 3.1(b) of the Supports Rules.
137 r 3.1(b) of the Supports Rules.

suggestion in the material that there are any expected changes in technology or Ms Gianakis’ circumstances in the short term that would make it inappropriate to fund the proposed scope of works.138 Nor on the material before it does the Tribunal consider there are supports of the same kind that are provided in the area in which Ms Gianakis resides, such that the Tribunal could compare the costs of such supports with the cost of the proposed scope of works.139

Ms Gianakis contends the proposed scope of works will increase her independence and reduce her need for other kinds of supports.140 She further contends that funding the proposed scope of works is likely to reduce the cost of the funding of supports for her in the long term.141 Ms Gianakis relies on Mr Killington’s evidence in relation to these contentions.142

The Respondent accepts the proposed scope of works will increase Ms Gianakis’ independence in meal preparation, completing laundry, and mobilising around her home.143 However, the Respondent contends it does not necessarily follow that Ms Gianakis’ enhanced independence will result in a corresponding reduction in the other kinds of supports she needs or the cost of the funding of supports for her in the long term.144 With respect to this contention, the Respondent referred to the conflicting opinions provided by Mr Killington and Mr Zerillo regarding whether it is possible to predict the amount of support worker assistance Ms Gianakis will need once the proposed scope of works has been completed, pending an assessment of her functional capacity within the modified home.145

In the Complex Home Modification Assessment Template dated 6 June 2023, Mr Killington reported:

a) The proposed modifications to the existing dwelling will facilitate safe and independent access for Ms Gianakis to all areas of the home including the bathroom, toilet, kitchen,

138 r 3.1(d) of the Supports Rules.
139 r 3.1(e) of the Supports Rules.
140 r 3.1(f) of the Supports Rules; Ms Gianakis’ closing submissions.
141 r 3.1(c) of the Supports Rules; Ms Gianakis’ closing submissions.
142 Ms Gianakis’ closing submissions.
143 Respondent’s closing submissions.
144 Respondent’s closing submissions.
145 Respondent’s closing submissions.

bedroom, living area, dining and laundry and this will not only promote independence within activities of daily living and meet basic human needs but drastically reduce the cost of in-home care support.146

b) Ms Gianakis currently requires approximately 8 hours of care each day, and those 8 hours primarily consist of mobility support, safety supervision, assistance with personal activities of daily living including toileting, showering, dressing and grooming as well as instrumental activities of daily living such as meal preparation, laundry tasks, light cleaning, shopping and community access.147

c) If the proposed modifications are completed, he anticipates Ms Gianakis’ current care requirements will reduce to approximately 2 hours per day on average which is a total reduction of 42 hours per week and an approximate annual reduction of $170,469.00 in paid care support. This equates to a 10-year reduction of paid support costs by
$1,704,690.00.148

d) The proposed modifications will facilitate Ms Gianakis to move from total dependence within activities of daily living to almost total independence; she will be completely independent with all meal preparation and kitchen access tasks; she should be able to resume light cleaning and tidying; and it is expected she will be able to resume independent and safe laundering of small clothes items.149

e) Once the proposed modifications are completed, Ms Gianakis will continue to need assistance with heavy cleaning and heavy laundry.150 He noted the degenerative nature of Ms Gianakis’ condition and opined that over time it is to be expected that transfers will become more difficult, her physical function will continue to deteriorate; her upper limb and hand function will decline, her cognition will continue to decline, and her functional capacity for grooming is expected to deteriorate.151

146 E1, 125.
147 E1, 125.
148 E1, 125.
149 E1, 103, 107, 108.
150 E1, 108.
151 E1, 100,101, 102, 106.

In oral evidence, Mr Killington confirmed he anticipated Ms Gianakis would require 2 hours of formal support each day, predominantly for assistance with personal care, if the proposed scope of works is completed.

In the report dated 4 October 2024, Mr Zerillo reported:

a) It is extremely difficult to project Ms Gianakis’ likely trajectory and disease progression in the short to medium term.152

b) It is recommended that Ms Gianakis have regular functional capacity reviews, at least every 12 months, to determine her level of function and support needs. However, she and her support network will benefit from a home modification to change her environment to accommodate her current needs and equipment as well as future needs and equipment. Once her home environment has been modified to accommodate her mobility and physical impairments, it is likely that she will be able to engage in tasks more regularly and independently.153

Mr Zerillo’s oral evidence was to the effect:

a) Given the nature of MS, how unpredictable it is, and how much it can fluctuate from day to day, it would be difficult for him to determine with any precision how many hours of support Ms Gianakis will need if the proposed scope of works is completed. He did not feel he could predict what Ms Gianakis’ progression might look like over the coming years, or the extent to which the proposed home modifications would reduce her need for formal support.

b) To determine the extent of formal support Ms Gianakis will require if the proposed scope of works is completed, her functional capacity would need to be assessed within that modified environment. He would not recommend reducing formal supports upon completion of the proposed scope of works until Ms Gianakis’ functional capacity is assessed in that modified environment.

152 E1, 698.
153 E1, 698.

c) If the proposed scope of works is completed, he was not confident Ms Gianakis would be fully independent with all aspects of meal preparation, however he did anticipate Ms Gianakis would be independent with light laundry tasks.

The Tribunal accepts the proposed scope of works will increase Ms Gianakis’ independence.154 However, the Tribunal notes the degenerative and fluctuating nature of MS and finds as follows:

a) The Tribunal is persuaded by and gives significant weight to Mr Zerillo’s evidence that it is difficult to predict with any precision the extent to which the proposed scope of works will reduce Ms Gianakis’ need for support worker assistance; a functional capacity assessment will need to be completed in the modified environment to determine with any certainty Ms Gianakis’ support needs at that point in time within that environment; and her functional capacity within the modified environment will need to be routinely reassessed, at least every 12 months. The Tribunal finds accordingly.

b) The Tribunal does not accept Mr Killington can predict with any certainty, and certainly not over a 10-year period, the extent to which the proposed scope of works will reduce Ms Gianakis’ need for formal support, or the cost of the funding of supports for Ms Gianakis in the long term, without assessing her functional capacity within the modified environment. The Tribunal is not persuaded Mr Killington’s projections with respect to this are reliable or realistic.

Nevertheless, the Tribunal is generally persuaded on the material before it that the proposed scope of works is likely to reduce, albeit to an unquantifiable extent, the cost of the funding of supports for Ms Gianakis in the long-term, and her need for other kinds of supports.155 The Tribunal finds accordingly.

The Tribunal must also consider whether there are comparable supports which would achieve the same outcome at a substantially lower cost.156 As was raised squarely with the parties at the hearing, a question arising on review is whether instead of the proposed scope

154 r 3.1(f) of the Supports Rules.
155 rr 3.1(c), 3.1(f) of the Supports Rules.
156 r 3.1(a) of the Supports Rules.

of works, the existing home could be rearranged or modified within its current footprint to create a home that is accessible for Ms Gianakis at a substantially lower cost.157

The Applicant contends there is no comparable support which would achieve the same outcome at a substantially lower cost, and no alternative has been proffered that would achieve the same outcome.158

The Respondent contends there are potentially comparable supports in the form of an alternative modification within the current footprint of the existing home; and that has the potential to provide Ms Gianakis with the access she needs to the rooms she needs to facilitate her independently undertaking her activities of daily living.159 Whilst acknowledging there is a fair amount of uncertainty about what an alternative modification could cost, the Respondent contends the reason that the evidence is limited is because of the way in which the design process for the modification was carried out; and the Tribunal should not treat the Respondent as having the burden of proving that there are alternative designs which are feasible alternatives to the proposed scope of works, particularly in circumstances where Ms Gianakis developed the design without the input of an occupational therapist, and controlled the design process, prior to her becoming a participant of the NDIS.160

Ms Gianakis’ evidence is to the effect:

a) After her MS diagnosis in 2014, she met with a draftsman who had experience designing wheelchair accessible homes.161 Three architects and 3 draftsmen were involved in providing the most suitable option.162 At least 3 different plans were considered, however those were not viable as issues of egress, steps, solid walls, and varying floor levels arose.163 The proposed scope of works is the most viable and cost effective option from both a building cost perspective and a building design perspective.164

157 Home Modifications Guideline, 9.
158 Ms Gianakis’ closing submissions.
159 Respondent’s closing submissions.
160 Respondent’s closing submissions.
161 E1, 538, 554.
162 E1, 311.
163 E1, 538, 554.
164 E1, 311.

b) She can use her walker in the kitchen to get to things at table height.165 It is not possible to modify the existing kitchen as benchtops cannot be lowered, the pantry cannot be changed, and storage cupboards cannot be modified.166 It is not possible to modify another room of the existing home to accommodate the kitchen.167 There is a very small gap between the existing home, and the neighbouring fence along the eastern boundary; and plumbing does not currently run, and cannot be run, down that gap.168

c) The walls in the existing home are solid brick and structural.169 As soon as you widen doors and things like that, you compromise the roof which means you could be up for more structural bearings in the roof to be able to accommodate what you are trying to achieve.170 Because of the different levels and structure, it did not make any sense from a cost perspective to do anything other than knock off the back of the existing home.171

d) Although Mr Stouraitis’ report does not provide calculations for lower cost alternative designs, this is because she has not pursued obtaining prices for plans or options that are not feasible or structurally possible.172

Mr Stouraitis’ evidence is to the effect:

a) In an undated report titled ‘Accessibility of Home’, he opined minor alterations are not possible to achieve suitable outcomes.173

b) When asked whether it would be possible to modify the other rooms in the existing home to address the same concerns that are addressed by the proposed scope of works, he gave evidence ‘that sounds very complex, simply because services aren’t running’.174 He indicated that if what was being asked was whether those rooms could be turned

165 Ms Gianakis’ oral evidence.
166 E1, 636.
167 Ms Gianakis’ oral evidence.
168 Ms Gianakis’ oral evidence.
169 Ms Gianakis’ oral evidence.
170 Ms Gianakis’ oral evidence.
171 Ms Gianakis’ oral evidence.
172 E1, 538.
173 E1, 163.
174 Mr Stouraitis’ oral evidence.

into a kitchen or laundry, ‘then you have serious questions on the design direction you are taking’.175 He gave further evidence that whilst the water may run elsewhere, ‘that’s something we can get around’.176

c) He did not design the proposed scope of works, he basically costed what had already been designed.177 He was not given the rationale for any elements of the design.178

d) When asked whether he measured the existing kitchen and went through it in any systematic way to determine whether it could be refitted, he gave evidence he had not, ‘that wasn’t my job’, and he was not asked to look at that.179

When asked whether it would be possible to modify the existing home to address design standards and make it accessible for Ms Gianakis, Mr Hopkins gave evidence he thought anything was possible, but you would be changing a whole lot of the other rooms in the existing home.180 He qualified this by saying it is always possible, but it can also be expensive in older homes.181 When asked whether he gave any consideration to whether the existing rooms could be reconfigured to make them more useful, he gave evidence ‘no, I wasn’t asked to do that’.182

In his report dated 23 September 2024, Mr Zoljalali identified the critical elements of the proposed scope of works to include floor levelling and removal of thresholds in all key areas of the home, widening of doorways, installation of accessible fixtures in the kitchen and bathroom, rear ramp construction for external access, and additional insulation and lighting to ensure comfort and safety; and opined ‘[t]he required outcomes for Ms Gianakis can only be achieved by implementing the home modification design in its entirety and holistically, as no viable alternative seems to be available’.183 When asked what the ‘required outcomes’ to which he had referred were, Mr Zoljalali confirmed he relied on Ms Gianakis and Mr

175 Mr Stouraitis’ oral evidence.
176 Mr Stouraitis’ oral evidence.
177 Mr Stouraitis’ oral evidence.
178 Mr Stouraitis’ oral evidence.
179 Mr Stouraitis’ oral evidence.
180 Mr Hopkins’ oral evidence.
181 Mr Hopkins’ oral evidence.
182 Mr Hopkins’ oral evidence.
183 E1, 660, 661.

Killington for those outcomes.184 When asked whether he had considered whether space within the existing home could be reconfigured to meet Ms Gianakis’ needs, he said he did put that question to Ms Gianakis and Mr Killington and was informed by them that all possible options were considered and there was no solution other than the proposed scope of works that ticked every box on the checklist of Ms Gianakis’ needs.185

Mr Killington’s evidence is to the effect:

a) His role is to look at safe access and functionality; and he defers to builders and engineers to say what is possible.186 When he became involved in the project, he was given the plan which was the preferred option, that being the proposed scope of works.187 He did a detailed assessment of that plan.188

b) In his report dated 6 June 2023, he stated:

‘The existing footprint of the home is not able to accommodate minor low-cost modifications which facilitate safe and independent access for Angela and support resumption of independent activities of daily living. The structural walls prevent doorway modification, and the multiple split levels prevent safe and independent access with use of four wheeled walker and wheelchair’.189

c) In oral evidence, he confirmed that to the extent the above statement relates to structural changes, that would not have been his opinion yet rather that would have been what he was advised.

d) He asked a few builders, including Mr Stouraitis, whether the existing footprint could be utilised to achieve the functional outcomes sought.190 He was advised by Mr Stouraitis that it could not be.191

184 Mr Zoljalali’s oral evidence.
185 Mr Zoljalali’s oral evidence.
186 Mr Killington’s oral evidence.
187 Mr Killington’s oral evidence.
188 Mr Killington’s oral evidence.
189 E1, 112-113.
190 Mr Killington’s oral evidence.
191 Mr Killington’s oral evidence.

e) When asked whether the interior of the existing kitchen could be refitted if access to the existing kitchen was overcome, he gave evidence it could be refitted but he did not know whether the access issues could be overcome.192 He then opined the existing kitchen is not the most appropriate set up and layout for Ms Gianakis.193

f) Once Ms Gianakis’ bedroom has been relocated to the current living room, her existing bedroom could accommodate a small living room, however the distance to other critical areas is an issue.194

In his report dated 4 October 2024, Mr Zerillo was asked to outline his understanding of previously considered scopes of works, and to the extent possible, comment on the reasons those scopes were not progressed or considered inappropriate.195 His response to this included the following:

a) Modifying the current kitchen was not recommended as there is no way to modify the step into the kitchen, thereby restricting the ability to modify the layout of the current kitchen to allow Ms Gianakis to function whilst seated.196 It would be difficult to install plumbing provisions required to convert an existing bedroom into a functional kitchen area.197

b) Relocating the current meals area to the bedroom nearest the kitchen was not considered as Ms Gianakis reported she is not prepared to convert a bedroom into a meal/dining area; it would not resolve the issue of Ms Gianakis being unable to access the kitchen; this would increase difficultly with preparing meals and food as Ms Gianakis currently sits at the dining table in the meals area and has line of sight to be able to direct and supervise carers that assist with cooking; this would increase difficulty for Ms Gianakis to transport items from the kitchen to the meals area as this bedroom is further

192 Mr Killington’s oral evidence.
193 Mr Killington’s oral evidence.
194 Mr Killington’s oral evidence.
195 E1, 700-701.
196 E1, 703.
197 E1, 704.

away from the existing kitchen; and the door of this bedroom would need to be widened.198

c) Relocating the laundry to where the existing bathroom is would not achieve the necessary circulation space; and whilst the existing kitchen is large enough to be converted into an accessible laundry, there is no suitable location in the home to relocate the kitchen to without major structural works.199 It would be difficult to install plumbing provisions required to create a new laundry in another area of the home.200

In oral evidence, Mr Zerillo confirmed that when he completed his assessment, no builder was present.201 Usually in developing a scope of works for home modifications and considering alternatives, Mr Zerillo said he would collaborate with a building works project manager; and that the building works project manager would break down components of the scope of works, and a builder would then quote off that.202

The proposed scope of works received development approval on 7 May 2019.203 Ms Gianakis became a participant of the NDIS in 2020.204 In circumstances where the proposed scope of works was developed, settled, and had development approval before Ms Gianakis became a participant of the NDIS, the Tribunal considers it improbable the NDIS Act, the Supports Rules, or relevant guidelines were given any consideration during the concept design stage.

There is no evidence before the Tribunal regarding the identity and experience of any draftsman or architect who worked with Ms Gianakis to formulate the proposed scope of works, other than that provided by Ms Gianakis and the name ‘Personalised Home Designs’ which appears on the development application.205 There is no evidence before the Tribunal about the brief given to the draftsman or architect regarding the goals, objectives, or outcomes Ms Gianakis sought to achieve and which informed the concept design stage.

198 E1, 704.
199 E1, 705.
200 E1, 706.
201 Mr Zerillo’s oral evidence.
202 Mr Zerillo’s oral evidence.
203 Exhibit 9 (E9).
204 Respondent’s chronology – home modifications dated 26 February 2025.
205 E9.

Nor does it appear on the material before the Tribunal that an occupational therapist was involved during the concept design stage of the proposed scope of works. The only firsthand evidence of what options and alternatives were considered before the proposed scope of works was settled, and why those were discarded, is that provided by Ms Gianakis.

The Tribunal is not persuaded on the material before it that consideration was given to whether the existing home could be modified or rearranged to be accessible within its current footprint during the concept design stage, or at any time before development approval was granted. Nor is the Tribunal persuaded the proposed scope of works was informed by any occupational therapist during the concept design stage. Of course, this does not of itself mean that there is or may be an alternative modification within the existing home’s current footprint which would achieve the same outcome at a substantially lower cost than the proposed scope of works.

Mr Stouraitis, Mr Hopkins, Mr Zoljalali, Mr Killington, and Mr Zerillo were not involved in the concept design stage of the proposed scope of works, or at any time before development approval was granted. There is no suggestion in the material before the Tribunal that they have spoken with the draftsman or architect who worked with Ms Gianakis to design the proposed scope of works. It follows that the only information they have each had about any alternative modifications considered during the concept design stage, and why those were discarded, is what has been reported to them by Ms Gianakis.

Ms Gianakis engaged Mr Stouraitis to quote building the proposed scope of works. The Tribunal accepts Mr Stouraitis’ evidence that he was not asked to consider, and has not considered, whether the existing kitchen could re refitted to make it accessible. The Tribunal is not persuaded on the material before it that Mr Stouraitis was asked to consider, or has in fact considered, whether the existing home could be modified within its existing footprint, and if so, what that alternative modification would cost. Indeed, his evidence with respect to this was to the effect that this would be a completely different design direction.

The Tribunal accepts Mr Hopkins’ evidence that he was not asked to consider, and he has not considered, whether the rooms in the existing house could be reconfigured to make them more useful.

Rather than being engaged to assess what modifications would be required to make the existing home accessible for Ms Gianakis, or whether the existing home could be made accessible for Ms Gianakis, Mr Killington was engaged by Ms Gianakis to complete an assessment of the proposed scope of works. Appropriately, Mr Killington confirmed in oral evidence that whether a particular modification is structurally possible is beyond his expertise, and he defers to others in relation to this. Whilst Mr Killington gave evidence Mr Stouraitis informed him the existing home’s current footprint could not be utilised to achieve the outcomes sought, the Tribunal does not give this aspect of Mr Killington’s evidence weight in circumstances where the Tribunal has found Mr Stouraitis has not in fact considered that.

As an occupational therapist who is familiar with the existing home and has assessed Ms Gianakis’ functional capacity, the Tribunal considers Mr Killington is appropriately qualified to comment on whether the existing kitchen could be refitted to make it assessable for Ms Gianakis. The Tribunal accepts his oral evidence that if access into the existing kitchen can be overcome, the existing kitchen could be refitted. The Tribunal also accepts that it is Mr Killington’s opinion that whilst the existing kitchen could be refitted, it is not the most appropriate set up and layout for Ms Gianakis. However, the NDIS is intended to fund reasonable and necessary supports, and the measure of whether the proposed scope of works is reasonable and necessary is not whether the outcome it will produce is optimal.

Whilst Mr Zerillo’s report does outline his understanding of previously considered scopes of works, and why those scopes were not progressed or considered inappropriate, his understanding was informed by Ms Gianakis and Mr Killington. Mr Zerillo did not have the benefit of a builder being present during his assessment to advise what is and is not possible from a services provision or structural perspective. Mr Zoljalali’s oral evidence, referred to at paragraph [85], suggests he did not consider for himself whether space within the existing home could be reconfigured to meet Ms Gianakis’ needs.

Contrary to Ms Gianakis’ evidence that plumbing does not and cannot run along the eastern boundary of the existing home such that consideration could be given to repurposing existing rooms as an accessible kitchen or laundry, Ms Stouraitis’ evidence is that this issue is not insurmountable. The Tribunal considers Mr Stouraitis is suitably qualified and experienced to opine in relation to this. The Tribunal also notes the Respondent’s observation in closing submissions that the approved development application that was filed

and served midway through the hearing includes a plan that differs slightly from the proposed scope of works, in that it includes a new bathroom along the eastern boundary of the home.206 Having now reviewed that plan, the Tribunal finds this to be so.207 For these reasons, Ms Gianakis’ evidence that plumbing cannot run along the eastern boundary of the existing property appears misconceived, and it appears to the Tribunal this has informed Mr Killington’s and Mr Zerillo’s understanding of what is and is not possible from a building perspective.

It is clear to the Tribunal that in challenging circumstances, Ms Gianakis has spent significant time, money, and energy developing the proposed scope of works and pressing for that to be funded by the NDIS. The Tribunal accepts this has taken a very significant toll upon Ms Gianakis, and all the while she has been living in the existing home which is inaccessible and unsafe for her.

Whilst the Tribunal does not suggest for one moment Ms Gianakis has deliberately misled those whose evidence the parties rely upon, the Tribunal does consider she shaped the design direction of the proposed scope of works and remains steadfastly committed to that. The Tribunal is not persuaded that Ms Gianakis has considered, or been willing to give genuine consideration to, alternative modifications within the existing home’s footprint that may achieve accessibility and enhance her independence with activities of daily living at a substantially lower cost than the proposed scope of works. The Tribunal finds accordingly. The Tribunal further finds that this has come to bear upon whether, and if so the extent to which, Mr Stouraitis, Mr Hopkins, Mr Zoljalali, Mr Killington, and Mr Zerillo have given, or have been able to give, objective and impartial consideration to what alternative modifications may be available, what outcomes those would achieve, and what those would cost.

In closing submissions, the Respondent identified components of the proposed scope of works it considered could be funded, and the amounts those components could be funded at; and amounts which can be funded to modify a kitchen and a laundry based on its policy documents. In combination, those amounts totalled $225,649.00. That amount, in the Respondent’s submission, is a rough estimate of what an alternative modification, or a

206 E9.
207 E9.

comparable support, may cost. Whilst this estimation is imprecise and purely speculative to the extent that it relies on policy documents regarding kitchen and laundry modifications, it nevertheless stands in sharp contrast to the approximate cost of the proposed scope of works and this highlights the importance of exploring whether there are comparable supports, what outcomes those would achieve, and what they would cost.

It is unclear on the material before the Tribunal whether there is in fact an alternative modification within the existing home’s current footprint which would achieve the same outcome at a substantially lower price than the proposed scope of works. However, the Tribunal is persuaded on the material before it that there may be an alternative modification within the existing home’s current footprint which would achieve the same outcome at a substantially lower price than the proposed scope of works. Given the cost of the proposed scope of works, and the need to ensure the financial sustainability of the NDIS, the Tribunal considers this possibility must be given proper and objective consideration. The Tribunal is not persuaded on the material before it that this has occurred. For this reason, to the extent the proposed scope of works involves adding an extension to the rear of the existing house, the Tribunal is persuaded there may be a comparable support which would achieve the same outcome at a substantially lower cost.208 The Tribunal gives this significant weight.

Having considered each of the matters prescribed in r 3.1 of the Supports Rules, and the weight that can be appropriately given to each of those, the Tribunal is not satisfied the proposed scope of works in its entirely represents value for money in that the costs of the support are reasonable and necessary, relative to both the benefits achieved and the costs of alternative support. Specifically, the Tribunal is not satisfied creating a new family bathroom in addition to an accessible ensuite, creating a walk-in-robe, or adding an extension to the rear of the existing home, is value for money within the meaning of s 34(1)(c). It follows that the Tribunal is not satisfied the proposed scope of works meets the requirement in s 34(1)(c). Accordingly, the proposed scope of works is not reasonable and necessary and cannot be funded in Ms Gianakis’ SOPS.

However, having considered each of the matters prescribed in r 3.1 of the Supports Rules, and the weight that can be appropriately give to those, the Tribunal is satisfied that

208 r 3.1(a) of the Supports Rules.

components of the proposed scope of works do meet the requirement in s 34(1)(c). Those components include relocating Ms Gianakis’ bedroom and creating an accessible ensuite, creating an external access point, levelling the floors of the existing home, and ancillary costs associated with those modifications which include a site toilet for 3 months, project management fees, and widening the doorway into the external access point, the accessible ensuite and Ms Gianakis’ bedroom (restricted scope of works).

The Tribunal notes that in their proposed final order, the Respondent indicated funding
$16,653.00 and $9,482.00 for kitchen and laundry modifications respectively is reasonable and necessary. From this, the Tribunal infers the Respondent accepts that funding those amounts for kitchen and laundry modifications would represent value for money, and will be, or is likely to be, effective and beneficial for Ms Gianakis.209

Those amounts are based on budget levels the Respondent uses for funding minor home modifications in each Modified Monash Model (MMM) location category.210 The Tribunal is not persuaded on policy alone that such support will substantially improve the life stage outcomes for, and be of long term benefit to, Ms Gianakis; is likely to reduce the cost of the funding of supports for Ms Gianakis in the long term; or will increase Ms Gianakis’ independence and reduce her need for other kinds of support. The Tribunal is not therefore satisfied that funding $16,653.00 and $9,482.00 for kitchen and laundry modifications respectively 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.211 Further, in the absence of any clinical assessment by and recommendation from an appropriately qualified expert as to whether an accessible kitchen and laundry could be achieved for Ms Gianakis if her SOPS were to include funding in those amounts, the Tribunal is not satisfied such support will be, or is likely to be, effective and beneficial for Ms Gianakis, having regard to current good practice.212

In circumstances where only the restricted scope of works meets the requirement in s 34(1)(c), only those will be considered hereafter. With respect to this, the Tribunal notes:

209 s 34(1)(c).
210 Exhibit 4 (E4).
211 s 34(1)(c).
212 s 34(1)(d).

a) In a report dated 24 May 2024, Mr Stouraitis stated there is no way he would suggest nor recommend that the home modifications be done disjointedly; and due to the nature of the existing floor plan and the fact that all areas affect one and other it is not advisable for any of the home modifications to be done individually.213 Mr Hopkins opined that the adjustments of the existing layout of the home are best carried out as one project; and Mr Zoljalali similarly opined the required outcomes for Ms Gianakis can only be achieved by implementing the home modification design in its entirety and holistically.214

b) The Tribunal accepts that the proposed scope of works would ideally, and best be completed as a whole, and that completing the restricted scope of works in isolation could result in a nonsensical outcome. For example, the proposed relocation of Ms Gianakis’ bedroom to the existing living room, and the associated demolition of the existing laundry to create an accessible ensuite within Ms Gianakis’ new bedroom, would in the absence of other modifications leave the existing home without a laundry, let alone an accessible laundry.

c) In closing submissions, counsel for Ms Gianakis submitted the proposed scope of works must be completed as a whole and the Tribunal cannot pick and choose which modifications are reasonable and necessary. The nature of the legislation by which the Tribunal is bound requires it to consider whether a support is reasonable and necessary and the legislative requirements in s 34(1) are met. If the Tribunal were to approach have approached this task in the way counsel for Ms Gianakis submits it should, the outcome could be that:

-Components of the proposed scope of works which are not reasonable and necessary would be funded by the NDIS, which would be contrary to the scheme’s intention to provide reasonable and necessary supports for participants of the NDIS, and the need to ensure the financial sustainability of the NDIS;215 or

213 E1, 624, 627.
214 E1, 633, 660.
215 ss 3(1)(d) and 3(3)(b).

-None of the proposed scope of works would be funded irrespective of whether components of that are reasonable and necessary and would support Ms Gianakis to pursue her goals and maximise her independence.216

d) The Tribunal does not consider that either of those outcomes would be consistent with the objects of the NDIS Act, or the general principles guiding actions under the NDIS Act.217

e) The Tribunal has considered whether such an approach is contrary to the fact that the scheme contemplates full funding of reasonable and necessary supports.218 However, the Tribunal considers that ensuring only those components of the proposed scope of works which are reasonable and necessary are funded in Ms Gianakis SOPS is entirely consistent with this.

f) The Tribunal acknowledges that if it is to find only particular components of the proposed scope of works are reasonable and necessary, Ms Gianakis will need to consider whether it is practical to proceed with only those components of the proposed scope of works that will be funded under the NDIS, or whether she is able and willing to self-fund those components of the proposed scope of works that will not be funded under the NDIS. Ms Gianakis may in such circumstances also need to consider whether the design direction of the complex home modifications needs to be reconsidered, and if that were the case, whether a new request for funding for complex home modifications will be made to the Respondent. The Tribunal acknowledges this would be extremely distressing for Ms Gianakis and her family, and potentially leave Ms Gianakis living indefinitely in the existing home which is inaccessible and unsafe. Nevertheless, the Tribunal can only make its decision on the material before it, and it must be satisfied, or persuaded, on that material that the legislative requirements are met.219

Section 34(1)(d) requires that the support will be, or is likely to be, effective and beneficial for Ms Gianakis, having regard to good practice. When considering whether the restricted

216 ss 3(1)(c), 3(1)(d), 4(5).
217 ss 3 and 4.
218 McGarrigle v National Disability Insurance Agency [2017] FCA 308, [94].
219 Beezley v Repatriation Commission [2015] FCAFC 165, [68].

scope of works will be, or is likely to be, effective and beneficial for Ms Gianakis, the Tribunal must consider rr 3.2 and 3.3 of the Supports Rules.

In closing submissions, the Respondent submitted the Tribunal should not be satisfied the walk-in-robe, or the bathroom in addition to the accessible ensuite, will be effective and beneficial for Ms Gianakis. The Respondent otherwise accepts the proposed scope of works will be, or is likely to be, effective and beneficial for Ms Gianakis. Neither the walk-in-robe, or the bathroom in addition to the accessible ensuite, come within the restricted scope of works. On the material before the Tribunal, particularly that provided by Mr Killington and Mr Zerillo, the Tribunal is satisfied the restricted scope of works will be, or is likely to be, effective and beneficial for Ms Gianakis, having regard to current good practice.220 The restricted scope of works therefore meets the requirement in s 34(1)(d).

Section 34(1)(e) requires 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. This requirement is not in contest between the parties, and the Tribunal is similarly satisfied of this. The restricted scope of works therefore meets the requirement in s 34(1)(e).

Section 34(1)(f) requires the support is an NDIS support for Ms Gianakis. The Tribunal is satisfied the restricted scope of works is a support that designs, changes or modifies Ms Gianakis’ home to help her live as independently as possible and to live safely at home;221 and is not standard home repairs, home improvements, standard renovations and maintenance.222 The Tribunal is therefore satisfied the restricted scope of works is an NDIS support for Ms Gianakis. The restricted scope of works therefore meets the requirement in s 34(1)(f).

The Tribunal is satisfied that the restricted scope of works is reasonable and necessary and meets the requirements in s 34(1). It follows that the restricted scope of works is a reasonable and necessary support and will be funded in Ms Gianakis’ SOPS.

220 s 34(1)(d).
221 item 22 in the table at cl 1 of Sch 1 to the NDIS Supports Transitional Rules.
222 Item 1 in the table at cl 1 of Sch 2 to the NDIS Supports Transitional Rules.

Having determined the restricted scope of works is a reasonable and necessary support and will be funded in Ms Gianakis’ SOPS, the Tribunal has considered what order to make when it sets aside the decision under review and remits the matter for reconsideration.

Mr Stouraitis’ quote is broken down into amounts payable at stages of the build and does not shed any light on what works each area or component of the proposed scope of works will entail or cost. Nor does the Toro Constructions quote set out what works each area within the proposed scope of works will entail or cost. The scope of work and quotation proforma which Mr Zoljalali prepared based on the Toro Constructions quote, does describe what works will be involved with respect to particular items, and it also provides an amount for each of those items. However, in that document the works involved for the bathroom and ensuite modifications are combined; it is unclear under which item works associated with demolishing the existing bathroom and creating the walk-in-robe have been included; and it is unclear which or how many doorways are being referred to under the item internal modifications (general). For these reasons, an order that refers to a particular scope of works as per Mr Stouraitis’ quote, Toro Construction’s quote, or the scope of work and quotation proforma prepared by Mr Zoljalali is impracticable.

Separate to the scope of work and quotation proforma, Mr Zoljalali has in his report and oral evidence identified the cost of levelling the floors of the existing house ($40,000.00), creating an access point ramp ($30,000.00), creating an accessible ensuite ($65,000.00), widening doorways into the external access point, the accessible ensuite, and Ms Gianakis’ bedroom ($40,000.00), and having a site toilet for 3 months ($4,000.00).223 He also confirmed in oral evidence that project management fees would be between 9 to 15 percent. Doing the best it can on the material before it, the Tribunal will make an order in those terms.

Decision

The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that:

1.The statement of participant supports specifies the reasonable and necessary supports include:

223 E1, 665-668.

a) 120 hours of physiotherapy

b) Capital Support Home Modifications funding in the amount of $200,480.00 consisting of:

External access point $30,000.00

Ensuite $65,000.00

Floor levelling $40,000.00

3 door widenings $40,000.00

(external access point, bedroom, ensuite)

Site toilet (3 months) $ 4,000.00

Project management fees 12 per cent $21,480.00

2.The physiotherapy support listed at paragraph (1)(a) replaces Ms Gianakis’ existing funding for physiotherapy and Therapy Assistant Level 2.

3.All other supports in Ms Gianakis’ existing statement of participant supports, excepting any one-off assistive technology supports already used, are to be replicated pro-rate from the date the supports listed at paragraph (1) are included in Ms Gianakis’ statement of participant supports.

4.The management of funding for reasonable and necessary supports is to remain the same as the management of funding for those supports as specified in Ms Gianakis’ existing statement of participant supports.

5.The date the Respondent must reassess Ms Gianakis’ plan is to be 12 months after the date on which the supports in paragraph (1) are included in Ms Gianakis’ statement of participant supports.

External access point	$30,000.00
Ensuite	$65,000.00
Floor levelling	$40,000.00
3 door widenings	$40,000.00
(external access point, bedroom, ensuite)
Site toilet (3 months)	$ 4,000.00
Project management fees 12 per cent	$21,480.00