Habib and National Disability Insurance Agency (NDIS) - [2025] ARTA 483

Habib and National Disability Insurance Agency (NDIS) [2025] ARTA 483 (10 April 2025)
Applicant/s:  Zeina Habib
Respondent:  National Disability Insurance Agency
Tribunal Number:                2023/1672

Tribunal:Administrative Review Tribunal
Place:Hobart
Date:10 April 2025

Decision:The Tribunal varies the decision under review pursuant to section 105(b) of the Administrative Review Tribunal Act 2024 (Cth).

..............................[sgd]..........................................
General Member A. Williams

Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – review of statement of participant supports – request for funding of support worker assistance (170 hours), professional cleaning (10 hours), legal support (25 hours per week) level 3 Support Coordination (170 hours), assistive technology (unspecified), administration support (25 hours per week, study support to attend trade course in United States, funding to attend residential rehabilitation and mental health retreat ($567,600) and in home chef (five days a week) ($5,000.00) - reasonable and necessary supports – applicant sought review of statement of supports to allow for funding multiple supports – decision under review varied.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) (NDIS Supports) Act 2024
National Disability Insurance Scheme (Supports for Participants) Rules 2013
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS afirm
Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
G v Minister for Home Affairs [2019] FCAFC 79 [18]
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Madelaine and National Disability Insurance Agency [2019] AATA 4025
National Disability Insurance Agency v WRMF (2020) FCR 415
Secondary Materials
National Disability Insurance Scheme Operational Guideline
Statement of Reasons

This application is about whether the Applicant, Ms Zeina Habib, can have her request for the funding of nine further individual supports by the National Disability Insurance Agency (‘the Agency’). In this decision I shall refer to Ms Habib by her name or as ‘the Applicant’.
Ms Habib seeks review of a decision made on 16 March 2023 by a ‘reviewer’ under s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) (the ‘decision under review’).[1] This decision confirmed an earlier decision by the Agency, which was made on 3 January 2023, not to approve funding for the above supports.
[1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘TD’).
The Administrative Review Tribunal’s (‘the Tribunal’s’) jurisdiction arises under s 12 of the Administrative Review Tribunal Act 2004 (Cth) (‘ART Act’), operating in conjunction with

s 103 of the NDIS Act.
For the reasons set out below, the decision under review is varied, as the Tribunal is not satisfied that Ms Habib has established that the requested supports meet the reasonable and necessary criteria under s 34(1) of the NDIS Act.
However, the Tribunal is satisfied that the additional supports recommended by the Respondent - namely:
·26 hours of level 2 support coordination; and
·24 hours of psychology; and
·24 hours of occupational therapy
meets the reasonable and necessary criteria under subsection 34(1) of the NDIS Act.
Background
Mr Zeina Habib is a 39-year-old woman who lives in a social housing property in suburban Melbourne.
Ms Habib has been diagnosed with schizophrenia and Post-Traumatic Stress Disorder (PTSD).
In her application to the Tribunal, Ms Habib requested the following additional supports be included in her plan:
·Increased funding in core consumables for toiletry products, continence products and menstrual pads;
·Increased core funding including:
a)    daily activities funding for a 24/7 in home carer.
b)    social, community and civic participation funding for 3 hours per day
c)    4 hours per week for self-care activities, such as animal therapy, naturopath, homeopath, meditation, yoga, and massage
d)    gardening and yard maintenance
·Increased transport funding
·Assistive technology funding for a workstation;
·Increased Capacity Building funding, including:
a)    weekly occupational therapy
b)    weekly psychology
c)    Weekly physiotherapy
·Personal training for 5 days per week;
·Pain management;
·Orthotic treatment;
·Orthodontic treatment;
·Dietician support;
·Meal preparation;
·Accommodation and cost of utilities;
·Funding for an advocate and legal assistance;
·Funding for personal care (hair and beauty);
·Funding for 4 to 5 hours per week of administrative support;
·Funding for study and employment support (8 hours per day, 3 days per week); and
·Funding for 12 months attending a private rehabilitation and mental health retreat.
Ms Habib had previously been approved as a participant in the NDIS. The plan the subject of this review is a two-year plan commencing on 3 January 2023 and ended on 2 January 2025. It was not clear from the current material before the Tribunal if the current funding has been extended or a new plan has been put in place.
10.Her current NDIS supports are as follows:
Core Supports
·$148,867.84, including $800 for low-cost assistive technology and $21,935.68 for support in preparing meals.
Transport
·$5,350.50 for support to access work and study, or to participate in social and community activities.
Capacity Building Supports
·$2,739.15 for improved life services (NDIA managed).
·$9,801.60 for an occupational therapist and psychologist (plan managed).
·$14,920.80 (plan managed) for skill development and training, including public transport training
·$3,872.82 (plan managed) for improved health and wellbeing, including funding for an exercise physiologist and a personal trainer
·$15.867.80 (plan managed) for support coordination
During the progress of Ms Habib’s application through the Tribunal, several variations were made to the additional supports Ms Habib was seeking from the Agency. In this regard I have noted that after a Directions Hearing with Senior Member Parker on 20 June 2024, the number of requested supports was limited to the following:
·24/7 support worker assistance on a 1:1 basis in relation to different activities, including but not limited to assisting the Applicant to undertake activities of daily living, accessing the community, and attending clinical appointments. This funding, if approved, is to replace the current NDIS funding for support worker assistance in her current plan.
·Professional cleaning services for 10 hours per week.
·An increase in funding for support coordination to provide her with 170 hours per year of Level 3 Support Coordination Services.
·Assistive Technology items for her home.
·25 hours per week of legal services to enable the Applicant to bring legal action seeking compensation against an individual, a company, and a high school for harm caused to her.
·25 hours per week of administrative services to complete her personal administration.
·Study support (type and level not specified).
·$567,600 for 12 months residence and participation in all services offered at the Byron BayRaindrum Private Rehabilitation and Mental Health Retreat.
·$5,000 per week for the services of a professional chef to prepare meals for the Applicant in her home.
Senior Member Parker further directed that Ms Habib was to confirm whether she intends to press ahead with a claim for study support and if so, she must inform the Tribunal and the Respondent in writing the type and level of study support she is seeking, the cost of this support, the course of study to which it relates, how the support relates to her impairments and disability, confirmation of current enrolment in the course, and whether the support is available through the educational institute delivering the relevant course.
Ms Habib provided her response to the Tribunal in an email dated 12 July 2024 in the following terms:
I have already provided this information to you, including my request for funding for a holiday and SIL, ILO, SDA and STA funding. I have written it again in this email below.
Level of study support I am seeking is
1. Post graduate study to complete my master’s degree
2. Certificate training in a patisserie course.
The cost of this support I am seeking is:
1. For post graduate study $30,000 a year
2. For the certificate course, $27,000 and I'd need accommodation funding for 7 weeks internationally and up to 400 of support work hours including out of study support work.
- how the support relates to her impairments and disability:
It helps me with isolation. Missing life experience due to my disability and circumstances.
Developing relationships.
- confirmation of current enrolment in the course
I am not enrolled in any of the courses yet.
- whether the support is available through the educational institute delivering the relevant course
No, this support is not available through the education provider.
I’d like to request funding for STA because I would like to go on a holiday for the same reasons as above. And also need to see my father every week which would require me to hire an air bnb. This would be for my holiday and 3-4 days per week if I go to see my dad.
SIL and SDA/ILO should I move in with housemates. Please refer to the excel sheet with cost and breakdown. I need high intensity, daily funding.
Accommodation
SIL, STA, SDA/ILO, assistance with accommodation and tenancy obligations.
Supported Independent Living.
I have been offered a social housing property which has allowed me to have ongoing and
stable accommodation. However, i need assistance with my rent. I am not able to pay my rent due to my disability. Stability in accommodation, especially when I’m unwell, is important for my health. I needed this included in my plan and it was not. I can’t get better without this funding and support. I will receive an update on a housing opportunity this week from the housing office. Assistance With Accommodation And Tenancy Obligations
Hour.I’d like to request $15000 for a NDIS holiday. NDIS respite care. Interstate holidays. This is for my self-care and trauma issues.
$1466.34 per month rent. STA, SIL, ILO funding.[2]
[2] Exhibit 3
Decision under review and application for review to this tribunal
The Respondent provided an approved statement of supports for Ms Habib on 3 January 2023, after assessing Ms Habib’s request for funding for the above. It advised that Ms Habib’s request for the funding, did not meet the reasonable and necessary criteria under s 34 of the Act and Rule 5 of the NDIS (Supports for Participants) Rule (‘the Rules’) (the initial decision).
On 12 January 2023, Ms Habib requested that the Agency conduct an internal review of the initial decision.
The Respondent conducted its internal review and on 16 March 2023 advised that it had confirmed the initial decision’s finding that Ms Habib’s request for funding would not be approved (the reviewable decision).
The basis for the review decision was as follows:
·The increased funding for consumables is a day-to-day living cost and not related to Ms Habib’s disability. It also did not represent value for money.
·The requested increase in core funding would cover day-to-day living costs and were not effective and beneficial.
·The increased transport funding did not represent value for money.
·The requested assistive technology (workstation) was not related to the participant’s disability and not appropriately funded through NDIS.
·The requested capacity building funding (weekly OT, psychology and physiotherapy) was not value for money, not effective or beneficial
·Requested funding for self-care activities (animal therapy, naturopathy, homeopathy, yoga, meditation and massage) did not represent value for money and were not effective and beneficial and so not the responsibility of NDIS to fund.
·The funding for a personal trainer was not value for money and adequate funding was already in her plan.
·Pain management funding is not related to the participant’s disability, not value for money and not responsibility of NDIS to fund.
·Orthotics are not related to the participant’s disability.
·Orthodontics are not related to participant’s disability and is a day-to-day living expense.
·Dieticians are not responsibility of NDIS to fund.
·Meal preparation funding is not value for money.
·Accommodation is a day-to-day living expense.
·Legal advocacy and assistance is not the responsibility of NDIS to fund.
·Hair and beauty is a – (day-to-day living expense.
·Personal administration support is both not value for money and not effective and beneficial.
·Employment and study support is not effective and beneficial.
·A 12-month private rehabilitation and retreat is not effective and beneficial, not value for money, and is not the NDIS’ responsibility to fund.
On 16 March 2023, Ms Habib applied to the then Administrative Appeals Tribunal (AAT) for the AAT to conduct an independent review of the reviewable decision.
In her application for review, Ms Habib noted the following as reasons why she considered the reviewable decision was wrong:
I have further evidence in progress to be provided and provided enough supporting evidence and statements showing my needs living with a disability at this time. My health and wellbeing have declined, and I have requested high intensity support to assist me with my disability needs.
Evidence and Submissions
As part of the review process, the Tribunal was provided by the Respondent with those documents previously submitted as part of the original application process (the T Documents). Of potential relevance to this decision are the following reports:
·Undated letter of support from Dr Sarah Freeman (OP)
·Undated Raindrum Retreat Information Pack.
·Support letter from Dr Anjith Divakaran (GP) dated 24 April 2018.
·Emergency Discharge Summary Chloe Multimer dated 13 September 2019.
·Progress Notes Rhiannon Duggan dated 13 September 2019.
·Psychiatry Assessment Rhiannon Duggan dated 14 September 2019.
·Psychiatry Discharge Dr Nicky Zigouris dated 10 October 2019.
·Evidence of Psychosocial Disability prepared by Dr Sarah Freeman dated 15 March 2022.
·Support Letter Dr Sarah Freeman dated 13 October 2022.
·Access Request form from Dr Freeman dated 12 November 2022.
·Private chef quote #QU-0142 dated 20 February 2023.
During the conduct of the Tribunal’s pre-hearing procedure, both parties filed with the Tribunal Statements of Issues and Statements of Facts, Issues and Contentions (SFIC).
The most recent or relevant of these documents will be referred to throughout this decision.
Ms Habib’s Statement
On 29 January 2024 Ms Habib provided a statement in the form of an Excel spread sheet where she outlined each of the supports, she was seeking with a statement outlining the basis for her request.
Ms Habib stated:
I’ve struggled with my daily living on my own without assistance from someone to help me with my daily living tasks. Due to not having supports in place when I was first diagnosed with a disability (not being aware of NDIS support at the time) and living in a crisis situation which has led to ongoing hardship my support needs requested are high intensity. Also, I have zero informal supports. I need NDIS support to live normally and to help me with daily living. This is the only support which I can rely on at this time, having zero informal supports. Support work is very important for my wellbeing because it allows me to receive support, have social connection and companionship have care and assistance with my daily living.
Regarding her request for cleaning services, Ms Habib wrote:
I need cleaning services as I am too unwell to keep up with home maintenance and cleaning. Having a clean environment has become a big issue after becoming unwell in 2016 (post my first disability diagnosis and possibly the start of my second disability diagnosis, diagnosed in 2021) and I need daily assistance with cleaning including professional cleaning. I am very sensitive to dirty unclean environments. It is also hard for me to be around dirty environments.
Regarding her request with support for meal preparation and delivery, Ms Habib wrote:
Please refer to statement above. Same as above. My weight gain was partly due to being on medication which was given to me when I was diagnosed and admitted into a psychiatric ward. I have struggled with my weight since and have had multiple attempts losing weight. I need Very High Intensity support, daily (24-7) to return to my healthy weight range.
Regarding her request with support for a chef to prepare meals, Ms Habib wrote.
Please refer to statement above. Same as above. My weight gain was partly due to being on medication which was given to me when I was diagnosed and admitted into a psychiatric ward. I have struggled with my weight since and have had multiple attempts losing weight. I need Very High Intensity support, daily (24-7) to return to my healthy weight range.
Regarding her request for therapeutic supports and, assistive technology and home modifications, Ms Habib wrote.
I need funding for a relationship expert due to my isolation, 0 informal support. That this has been long standing and is preventing me from getting married and having a family. I have no one to help me with this and I have not been able to help myself with my current situation. This has been difficult for me because of my age, and I don't want to wait any longer to be able to do this in my life. Relationship breakdown. My weight has been my disability too. I need high intensity support to keep active for both my physical and mental health. I find it difficult to function every day of my life because of my weight. My physical and mental health suffers when I am unable to take care of myself and achieve my weight loss goals and be in a healthy weight range. I live in pain and suffer every day of my life due to weight. I need high intensity daily support for this support. ($110 for personal
training 7 days a week). (Coaching and daily support for weight loss and exercise services x7 days a week probably at the same price) massage funding. my funding for therapy services needs to increase to high intensity, up to 5 x a day weekly appointment. OT, Physio, psychology, alternate therapies, massage, pain therapy service, other therapies such as music, yoga, meditation and other therapy. - meditation and yoga funding. 250 per session for up to 7 times a week. massage funding. Up to 200 per hour for mobile service for up to 7x a week..- Therapy dog for my isolation and trauma which
Please refer to all support work type funding (High Intensity) in price guide. Including weekdays, weeknight, weekends and public holidays. Dietitian: 150 course.
Initial consult 152 45min plus 182 meal plan. Review consults $92.
personal training: 115 per session. X 15 per week for
Assistive technology funding for my workstation, I have attached the quote which I’d like considered. I also need further assistive technology funding for workstation area and around my home. I keep damaging the walls because of the need of assistive technology and not having support workers around at the moment. This will include a bike chair and other accessories to assist me. Funding of up to 3500 dollars. I need funding for other items I find useful for trauma, body pain and stress after further assessment and recommendation from my therapy services. I need to see a therapist for orthotic treatment due to my physical pain. It's been chronic for over one year and might need different footwear to help as well as therapy support and assistive technology.

Regarding her request for employment support, study support, and accommodation (SIL/STA/SDA/ILO) Ms Habib wrote:
I also need employment and study support funding daily of up to 8 hours per day separate to my support work. Also, to assist me in attending appointments, groups, or meetings. I'd like to see if I could be provided funding for a 10-week course to complete internationally. I'd like to do this at some stage in my plan due to my isolation for years which has affected my social skills and life experience and has made me more disabled. This course would cost up to 18,750 dollars without accommodation, food, and travel costs. I'll have a support worker attend with me if I can.
Regarding her request for funding to attend a rehabilitation and recovery retreat, Ms Habib wrote:
I also requested that I receive funding for support attending a retreat (Raindrum Private Rehab and Mental Health Retreat) where I receive a multi-disciplinary team providing support for my rehabilitation and recovery. This is a top priority and I think that this is an immediate need. I need a lot of rehabilitation. I have been through a lot of trauma and my previous experiences have resulted in a lot of issues which require rehabilitation. This is Why I keep struggling with many different things, because I don't and have not received rehabilitation for issues around my health and lifestyle which are harming me due to these experiences and my disability experience (and having a disability). I sent the details for this online and I’ll need to be funded for 1 year in my 2 year plan because until I can attend a retreat like this, I believe I’ll remain unwell. I need this level of support and monitoring for my rehab and recovery (residential therapeutic programs start at $47,300 p/wk (incl. GST) and run for a minimum of 4 weeks). I'd need funding for
Regarding her request for funding for accommodation, Ms Habib wrote:
I have been offered a social housing property which has allowed me to have ongoing and stable accommodation. However, i need assistance with my rent. I am not able to pay my rent due to my disability. Stability in accommodation, especially when I’m unwell, is important for my health. I needed this included in my plan and it was not. I can’t get better without this funding and support. I will receive an update on a housing opportunity this week from the housing office. Assistance With Accommodation and Tenancy Obligations Hour
Regarding her request for funding for financial support for the payment of utilities and other bills, financial counselling and budget planning, Ms Habib wrote:
I have not been funded for my bills and utilities which I struggle to pay. This is important and needs to be included in my plan. The reason for this is that I cannot take on the responsibility of paying for these items with my disability and situation. I am too unwell with my disability and need to focus on and take care of my health. My money needs to go towards my self-care and health. I cannot afford to pay my bills and I have been sent to debt collectors, late with rent and my bills. I have not had enough money to pay for food either. 'Financial counsel or/accountant.
Regarding her request for funding for a lawyer or advocacy services for forthcoming legal matters, Ms Habib wrote:
Advocate funding. This is very important due to my communication issues. I have not been able to represent myself and need an advocate to represent me in my daily appointments and upcoming legal matters relating to trauma events which have contributed/caused my disabilities and future disabilities which have not been identified. I need an admin person. It will be daily support separate to my support work. I'd need up to 4 hours of funding per day, 5 days a week to start and then reduce. legal funding for legal matters that have led to my disabilities. These involve historical and recent events. I have 2 historical matters. I have other matters which I need advice on. My lawyer charges 400 dollars per hour. I'd like maximum funding because I need to be able to seek compensation for these matters as they are injuries which have caused me injury including my disabilities diagnosed. I'd like to see doctors and take these matters to court. This will allow me to find out if I have any further disabilities that might change in
Regarding her request for increased transport funding, Ms Habib wrote.
I’d like to confirm maximum transport funding has been provided and if it included support worker transport costs to travel to and back with me to complete daily living tasks for the duration of my plan. Also support work needs maximum funding to include transport because support workers could travel to complete tasks for me or to take me to complete tasks or go to my appointments. This is because I'm too unwell to travel and cannot travel much out of my local area.
The Agency’s Statements
The Agency’s second statement outlined its assessment of the various supports Ms Habib was seeking.
Overall, its position was that the requested supports are not reasonable and necessary as that is defined in s 34(1) of the NDIS Act, in that they were not supported by clinical evidence and are not related to Ms Habib’s disability support needs. The Agency noted that it understood that Ms Habib was seeking funding for those supports due to her current personal financial hardship. However, the NDIS is not responsible for funding a participant’s daily living expenses.
In this regard, the Agency contended that there was no evidence that the supports are required arising out of Ms Habib’s schizophrenia and complex PTSD.
The Agency’s next submission was filed on 14 November 2024 to update the Tribunal of the Transitional Rules, which came into effect on 3 October 2024. The Agency outlined how these transitional rules may now apply to Ms Habib’s requested supports.
By way of context, I note that on 3 October 2024 the NDIS Act was amended and a new set of rules, the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024. These transitional rules made significant changes to s 34 of the NDIS Act. They provided guidance as to what supports could be approved by the Agency and those that were deemed generally not to be NDIS supports.
As the Agency provided a final Statement of Facts Issues and Contentions (‘SFIC’) in March 2025 which outlined their final position prior to the hearing, I do not propose to summarise their contentions in their November Statement here.
The Agency provided its final SFIC on 7 March 2025. This SFIC itemised the various supports Ms Habib was seeking and the basis the Agency stated for why it did not comply with s 34(1) of the Act or any relevant rules.
In relation to Ms Habib’s request for 24 hour a day support worker assistance, the Agency stated:
·Ms Habib already has funding in her plan for support worker assistance for in home assistance and community access which should be sufficient to meet her needs.
·Based upon the documentary evidence, Ms Habib requires assistance with social engagement but does not require support worker assistance with other daily activities.
·The Tribunal could not be satisfied that the requested support represents value for money (s 34(1)(c) or effective and beneficial s 34(1)(d) of the NDISAct.
In relation to Ms Habib’s request the provision of 10 hours per week for professional cleaning services, the Agency stated:
·Based upon the documentary evidence, Ms Habib appears largely independent with cleaning. As was previously noted, she requires assistance with social engagement but does not require support worker assistance with other daily activities including cleaning.
·The Tribunal could not be satisfied that the requested support represents value for money (s 34(1)(c) or effective and beneficial s 34(1)(d) of the Act.
In relation to Ms Habib’s request for 170 hours per year of level 3 support coordinator assistance, the Agency stated:
·There is insufficient evidence establishing the need for this amount of annual support coordination hours or how that many hours would be used.
·The Tribunal could not be satisfied that the requested support represents value for money (s 34(1)(c) or effective and beneficial s 34(1)(d) of the Act.
In relation to Ms Habib’s request for assistive technology items for her home, the Agency stated:
·The items Ms Habib has requested are a workstation, computer, and accessories.
·Mr Mate in his report stated that Ms Habib did not require assistive technology for in-home activities.
·Citing FSWN and National Disability Agency[3] the Agency stated that the requested items fell within Item 1(j) (standard furniture, fixtures and fittings) and Item 18(b) (work-specific aids and equipment required to perform a job including modified hardware or software) of Schedule 2 (Supports that generally are not NDIS supports) in the Transitional Rules.
·Because of this, under s 34(1)(f) this requested support cannot be approved as a NDIS support.
[3] FSWN and National Disability Insurance Agency [2025] ARTA 114
In relation to Ms Habib’s request for 25 hours per week for legal services to enable her to bring a legal action against several people and organisations, the Agency stated:
·Ms Habib has stated this support is to cover the cost to engage a lawyer at an hourly rate of $400 to seek advice concerning a potential compensation claim.
·The Agency stated that the requested items fell within Item 2(h) of Schedule 2 (legal costs) (Supports that generally are not NDIS supports) in the Transitional Rules.
·Because of this, under s 34(1)(f), this requested support cannot be approved as a NDIS support.
In relation to Ms Habib’s request for 25 hours per week for administrative services to assist her complete her personal administration, the Agency stated:
·There is little meaningful evidence before the Tribunal as to the nature of those services or the number of hours required.
·The Tribunal could not be satisfied that the requested support represents value for money (s 34(1)(c) or effective and beneficial s 34(1)(d) of the Act.
In relation to Ms Habib’s request for an unspecified amount for study support to attend a patisserie course in the United States, and to complete her Master of Advanced Social Work the Agency stated:
·Ms Habib has advised that the tuition costs for the patisserie course are $18,750 and the cost of accommodation and a tourist visa (amount unspecified).
·The Agency stated that tuition costs fell within Item 2(g) of Schedule 2 (education and tuition fees for school, vocational education and training and higher education) (Supports that generally are not NDIS supports) in the Transitional Rules.
·In relation to the accommodation costs, the Agency stated that these costs fell within Item 1(a) (rent, rental bonds, home and property deposits, stamp duty mortgage repayments and strata fees) of Schedule 2 (Supports that generally are not NDIS supports) in the Transitional Rules.
·In relation to the visa costs, the Agency stated that these costs fell within Item 6(a) (cruises, holiday packages, holiday accommodation, and airfares including interstate or overseas travel, and passports, visas, activities and meals including air travel of Schedule 2 (Supports that generally are not NDIS supports) in the Transitional Rules.
·Because this is not a NDIS support, under s 34(1)(f), this requested support cannot be approved.
In relation to Ms Habib’s request for funding of $567,600 to attend for one year at a residential rehabilitation facility and mental health retreat, the Agency stated:
· The requested support fell within Item 12(c)(i) (time-limited, recovery-oriented services and therapies where the predominant purpose is treatment directly related to the person’s health status) and 12(n) of Schedule 2 (health retreats) (Supports that generally are not NDIS supports) in the Transitional Rules.ecause this is not a NDIS support, under s 34(1)(f) this requested support cannot be approved as a NDIS support.
In relation to Ms Habib’s request for funding of $5,000 per week for a chef to prepare meals in her home, the Agency stated:
·Ms Habib already has funding in her plan for 11 hours of support worker assistance for in personal, domestic and self-care tasks which should be sufficient to meet her needs.
·Based upon the documentary evidence, Ms Habib appears largely independent with meal preparation. As previously noted, she requires assistance with social engagement but does not require support worker assistance with other daily activities including cleaning.
·In relation to the support in preparing meals, the Tribunal could not be satisfied that the requested support represents value for money (s 34(1)(c) or effective and beneficial s 34(1)(d) of the Act.
·In relation to the cost of the food ingredients, the Agency stated that these costs fell within Item 3(a) (groceries including all food, beverage, cleaning, household, and health products) of Schedule 2 (Supports that generally are not NDIS supports) in the Transitional Rules.
The Agency agreed to fund some additional supports. It submitted that the decision under review ought to be set aside and substituted with a direction that the following additional supports be included in Ms Habib’s plan:
·     26 hours of Level 2 support coordination.
·     24 hours of psychology.
·     24 hours of occupational therapy.
Agency’s evidence
The Agency provided a report prepared by Mr Elliot Mate (Occupational Therapist) acting as an Independent Medical Expert dated 5 September 2024.
Mr Mate’s report is quite lengthy, so I do not propose to provide a summary here. Much of Mr Mate’s findings will be addressed when I record his oral evidence to the Tribunal.
LEGISLATIVE FRAMEWORK
The NDIS has been in operation for over ten years. It was at the time of its passage into law a landmark social legislation dedicated to the idea that people with disability have the right to realise their potential for physical, social, emotional and intellectual development.[4] This is one of a series of general principles guiding actions set out in section 4 of the Act. Other important principles in section 4 of particular relevance to the present case include:
(2) People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability…
(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports (…)
(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports…
(11) Reasonable and necessary supports for people with disability should:
(a) support people with disability to pursue their goals and maximise their independence; and
(b) support people with disability to live independently and to be included in the community as fully participating citizens; and
(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
[4] National Disability Insurance Scheme Act 2013 (Cth), subsection 4(1).
The NDIS is administered by the Agency established under the NDIS Act. The NDIS Act sets out the matters that must be included in a participant’s plan. Subsection 33(2) provides:
A participant's plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a)the general supports (if any) that will be provided to, or in relation to, the participant; and
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c)the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d)the management of the funding for supports under the plan (see also Division 3); and
(e)the management of other aspects of the plan.
Subsection 33(5) provides:
In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a)have regard to the participant’s statement of goals and aspirations; and
(b)have regard to relevant assessments conducted in relation to the participant; and
(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d)apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f)have regard to the operation and effectiveness of any previous plans of the participant; and
(g)have regard to whether section 46 (acquittal of NDIS amounts) was complied with in relation to any previous plan for the participant.
Section 34 (as recently amended) provides:
Reasonable and necessary supports
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is an NDIS support for the participant.
Note: For the purposes of paragraph (aa):
(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b) a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1) (aa) to (f).
The term “support” is not given a meaning in the NDIS Act. A “support” is defined in section 9 of the NDIS Act as including “general supports”, being those defined in subsection 13(2) as the kind of supports provided by the Agency itself. However, the term “support” and the phrase “reasonable and necessary” are not further defined in the NDIS Act. In McGarrigle v National Disability Insurance Agency [2017] FCA 308 at 91 (McGarrigle), Mortimer J observed, with respect to those words.
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.

The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (“the Rules”) made pursuant to subsection 35(1) of the NDIS Act provides further guidance with respect to the assessment of reasonable and necessary supports that will be funded. Pursuant to section 209 of the NDIS Act, the Rules are a legislative instrument and are therefore binding to the Tribunal. In this case the relevant Rules include:
Value for money
3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost.
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant.
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d) for supports that involve the provision of equipment or modifications:
iii.the comparative cost of purchasing or leasing the equipment or modifications; and
iv.whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications.
(e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides.
(f) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care
Part 5 of the Supports Rules sets out the general criteria for supports and supports that will not be funded or provided:
General criteria for supports
5.1 A support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
(b)it is not related to the participant’s disability; or
(c)it duplicates other supports delivered under alternative funding through the NDIS; or
(d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a)additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b)costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
Supports that will not be funded or provided
5.1The following supports will not be provided or funded under the NDIS:
(a)a support the provision of which would be contrary to:
(i).a law of the Commonwealth; or
(ii).a law of the State or Territory in which the support would be provided.
support that consists income replacement.cent amendments to the Act
As of 3 October 2024, the NDIS Act was amended under the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act (Amending
).
Under the Amending Act, new Rules were also put into effect. Of particular relevance to this matter, is the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (the Transitional Rules).
It is important to note that both the Amending Act and the Transitional Rules came into effect immediately and apply as of 3 October 2024.
The Amending Act and the Transitional Rules are designed to provide greater clarity as to what types of requested supports will receive funding approval under the Act and those supports that generally will not be approved.
As a result of the Amending Act, the definition of what constitutes a NDIS support in section 10 has changed with the new section reading as follows:
Definition of NDIS support
(1)       Subject to subsections (4) and (9), a support is an NDIS support for a person who is a participant or prospective participant if the support is declared by National Disability Insurance Scheme rules made for the purposes of this subsection to be an NDIS support for:
(a)       participants or prospective participants generally; or
(b)       a class of participants or prospective participants that includes the person.
Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).
(2)Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (1), the Minister must be satisfied:
(a)for rules to which paragraph (1)(a) applies—that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or
(b)for rules to which paragraph (1)(b) applies—that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.
(3)National Disability Insurance Scheme rules may declare a support for the purposes of subsection (1) only if at least one of the following applies:
(a)the declaration of the support implements Australia’s obligations under:
(i)the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006; or
(ii)       any other agreement with one or more other countries;
(b)the declaration of the support enables the provision of sickness benefits.
Supports that are not NDIS supports
(4)The National Disability Insurance Scheme rules may declare that a support is not an NDIS support for:
(a)       participants or prospective participants generally; or
(b)       a class of participants or prospective participants.
Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).
Rule 5 of the Transitional Rules is as follows:
What supports are NDIS supports—general rule.
Supports that are NDIS supports unless otherwise provided:
1For the purposes of subsection 10(1) of the NDIS Act, a support covered by column 2 of an item in the table in clause 1 of Schedule 1 to this instrument is an NDIS support (subject to subsections 10(4) and (9) of the NDIS Act and subsection (2) of this section) for:
(a)participants specified in column 3 of the item who have old framework plans; and
(b)prospective participants specified in column 3 of the item, other than prospective participants who, if they were participants, would be required to be given notice under subsection 32B(2) of the NDIS Act (participants that are to have new framework plans).
Note 1: Subsection 10(4) of the NDIS Act allows supports to be declared to not be NDIS supports for participants or prospective participants. Those supports are declared under subsection (2) of this section.
Note 2: Subsection 10(9) of the NDIS Act provides that a support is not an NDIS support for a participant or prospective participant if the support consists of the provision of:
(a)sexual services; or
(b)alcohol; or
(c)drugs, the possession of which is a contravention of a law of the Commonwealth,
(d)a State or a Territory.
Supports that generally are not NDIS supports:
2For the purposes of subsection 10(4) of the NDIS Act, a support covered by column 2 of an item in the table in clause 1 of Schedule 2 to this instrument is not an NDIS support for any participant (subject to subsection 10(6) of the NDIS Act) or prospective participant.
Note 1: Subsection 10(6) of the NDIS Act allows the CEO, on application by a participant, to determine that a support is taken to not be declared under subsection 10(4) of that Act in relation to the participant if, among other things, the CEO is satisfied that the support would replace one or more other supports that are NDIS supports for the participant.
Note 2: Determinations under subsection 10(6) of the NDIS Act are referred to in this instrument as replacement support determinations. For additional rules about replacement support determinations, see section 7 of this instrument.
This rule gives effect to section 10(4) of the NDIS Act which states that the Support Rules may declare that a support is not a NDIS support for a participant or a prospective participant.
Schedule 2 of the Rules contains a categorised list of requested supports that are declared not to be NDIS supports. Once again, the relevant items that may apply to Ms Habib’s application will be identified when I consider her requests later in this decision.
Schedule 2—Supports that generally are not NDIS supports:
Note: See subsection 5(2)
1 Supports that generally are not NDIS supports.
The following table sets out supports that are not NDIS supports for:
(a) a participant (unless a replacement support determination covering the support is in force for the participant); or
(b) a prospective participant.
Also, of importance to an assessment of this matter are both section 10(6) of the Act and Rule 7 of the Transitional Rules.
Section 10(6) is as follows:
The CEO may determine, in writing, that a support is taken to not be declared under subsection (4) in relation to a participant if:
(a)the support is prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and
(b) the support would, apart from subsection (4), be an NDIS support for the participant; and
(c)the participant applies to the CEO in accordance with subsection (7) for the determination; and
(d)the CEO is satisfied that:
(e)the support would replace one or more other supports that are NDIS supports for the participant; and
(f)the cost of the support is the same or lower than the total of the costs of the supports it would replace; and
(g)the support would provide the same or a better outcome for the participant than the supports it would replace; and
(h)any other conditions specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph are met in relation to the support, the participant, or bot
Rule 7 of the Transitional Rules is as follows:
Replacement support determinations
Supports for which determinations may be made:
1For the purposes of paragraph 10(6)(a) of the NDIS Act, the CEO may make a replacement support determination in relation to a support covered by column 1 of an item in the table in subsection (3) of this section.
2For the purposes of subparagraph 10(6)(d)(iv) of the NDIS Act, the CEO must be satisfied that the conditions set out in column 2 of an item in the table in subsection (3) are met before making a replacement support determination in relation to a support covered by column 1 of the item.
3The table is as follows:
Replacement support determinations
1Standard commercially available household items
The support must:
(a)The funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and community to be necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements; and
(b)increase whole task independence; and
(c)reduce or eliminate the need for a support worker or disability specific assistive technology.
What these two provisions specify is that a participant may apply to have a support that would otherwise be considered not to be an NDIS support considered as a replacement support determination, subject to it meeting the requirements specified in Rule 7(3).
I shall return to the relevance of the Transitional Rules to this case when I consider whether the requested additional support can be found to be reasonable and necessary under the Act.
The NDIS Act and its Rules are supplemented by operational guidelines. The operational guidelines represent government policy and, to the extent that they are consistent with the relevant legislation, should be applied by the tribunal unless here is a sound reason not to do so.[5]
[5] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; Madelaine and National Disability Insurance Agency [2019] AATA 4025.
The National Disability Insurance Scheme Operational Guidelines – Planning provides:
This Operational Guideline provides an overview of the National Disability Insurance Scheme (NDIS), including the legal and policy framework it operates within and the variety of different ways it provides support and assistance to people with disability.
In addition, this Operational Guideline outlines the objects and general principles of the National Disability Insurance Scheme Act 2013 and provides a summary of the information which is available in the remainder of the NDIS' Operational Guidelines.[6]
[6] National Disability Insurance Agency, ‘Operational Guidelines: Overview of the NDIS Operational Guideline’ <>
There is no power conferred by the NDIS Act to make Operational Guidelines, and they are issued in an exercise of executive power.[7] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines; however, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[8], the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation, however they should not be bound by it. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection,[9] where Mortimer J (as her Honour then was) held:
‘Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it…’
[7] G v Minister for Home Affairs [2019] FCAFC 79 [18].
[8] [1979] 24 ALR 577 [590].
[9] [2018] FCA 1229.
Therefore, unless the Access Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether Ms Habib meets the reasonable and necessary criteria.
Summary of the Changes to the Legislation
I appreciate that much of what is recorded above is highly complex and difficult to comprehend. To summarise the effect of these changes I note the following:
·The new legislation applies to both existing participants in the Scheme and prospective applicants.
·The new law came into effect on 3 October and applies to all existing requests for support including those such as Ms Habib, that are currently before the Tribunal.
·Section 10(1) of the NDIS Act now allows the NDIS to classify a support in the NDIS rules as a NDIS support which can be approved if it meets the other reasonable and necessary criteria in s 34(1).
·Conversely s 10(4) now allows the NDIS to classify a support as ‘not a NDIS support’ in the rules.
·Rule 5(2) gives effect to s 10(4) by stating that if a requested support is listed in schedule 2 of those rules, then it is ‘not a NDIS support.’
·Section 34(1)(f) now requires that for a requested support to be considered to be reasonable and necessary that support must be ‘a NDIS support as well as meet the other reasonable and necessary criteria specified in ss34(1) (aa) to (e).’
If a decision maker, such as myself, finds that a requested support falls within any of the 24 categories itemised in schedule 2 of the rules, then it cannot be found to be reasonable and necessary even if I were to find that all the other criteria have been met.
I note that in many cases items that are listed in schedule 2 of the rules as ‘not NDIS supports’ are identified under quite broad categories rather than as an itemised list of specific items. I have identified later in this decision several of these broad categories that Ms Habib’s request for funding could potentially fall within.
My task in this decision will be to determine if Ms Habib’s request for meets the reasonable and necessary criteria generally and whether it falls within one or more of those broad ‘not NDIS’ categories.
To find that Ms Habib’s requested support is reasonable and necessary, I will need to find that her various requested supports meet all (emphasis added) of those 7 criteria as well as those specified in Rules 3 to 5.
Evidence at hearing
The hearing of Ms Habib’s application took place over two days on 20 and 21 March 2025.
Ms Habib represented herself and the Agency was represented by Ms Sarah Varney of Counsel, who was instructed by Ms Kate Heremaia of Mills Oakley Lawyers.
The Joint Tender Bundle of agreed documentary evidence was received by the Tribunal on 14 March 2025 and entered into evidence.
Ms Habib gave evidence on the first day of the hearing and Mr Mate gave evidence on behalf of the Agency on Friday 21 March 2025.
Ms Habib’s support coordinator had originally been scheduled to give evidence on the afternoon of the first day of the hearing, however she later advised she would not be available on either day. Ms Habib informed me that she was happy to rely on her own evidence.
Ms Habib’s evidence
Before Ms Habib gave her evidence, I confirmed what supports she wanted to have considered by the Tribunal. Ms Habib agreed that all the following supports should be considered by the Tribunal:
·24/7 support worker assistance on a 1:1 basis in relation to different activities. This funding, if approved, is to replace the current NDIS funding for support worker assistance in her current plan.
·Professional cleaning services of 10 hours per week.
·An increase in funding for support coordination to provide her with 170 hours per year of Level 3 Support Coordination Services.
·Assistive Technology items for around the home (presently unspecified and to be addressed by the OT, Mr Mate, with the Applicant when he undertakes the OT assessment).
·25 hours per week of legal services to enable the Applicant to bring a legal action seeking compensation against an individual, company and a high school for harm caused to her.
·25 hours per week of administrative services to complete her personal administration.
·study support for completion of master’s degree and attending a Patisserie course in the United States.
·$567,600 for 12 months residence and participation in all services offered at the Byron Bay, Raindrum Private Rehabilitation and Mental Health Retreat.
·$5,000 per week for the services of a professional chef to prepare meals for the Applicant in her home.
When asked if that list included all the additional supports she was seeking, Ms Habib told me that she also wanted additional hours for psychology and other allied health professional support.
I explained to Ms Habib it was not open for me to consider this additional support, this late in the Tribunal process as this would result in further delay and inconvenience to both her and the Agency. She was also advised that she could seek a further review of those additional supports by the Agency.

After resolving this issue, Ms Habib provided an affirmation concerning the evidence she would give and began answering questions from Ms Varney.
Ms Varney asked Ms Habib what she needed the requested support worker hours for Ms Habib she needed this for every aspect of her daily living including in the home, accessing the community and getting her to her appointments.
She stated that she was very socially isolated and had no informal supports and therefore was very reliant on her NDIS supports.
She had spent years in a crisis situation without any support. Asked what that crisis was, she stated that she had been living with her parents and had to leave the family home and then had a financial crisis, had no housing and was struggling with her disability which she identified as complex PTSD. She experiences intrusive thoughts, and it affects her emotionally. It also makes her very tired, lacking motivation and finding it difficult to do things.
She did not agree that she had schizophrenia. She is not currently engaged in any treatment for schizophrenia; however, she does see a psychologist every two weeks.
She has now managed to get a social housing property where she now lives. It has provided her with more stability.
When she got her first NDIS plan, it offered $200,000 for two years. This represented only a fraction of what she had asked for. Ms Habib ended up using all her funding within 3 to 4 months, leaving her with no funding at all. This led her to becoming unwell very isolated and struggling with daily life.
Asked how she managed without support worker assistance, Ms Habib stated she didn’t manage and did very little she had trouble with motivation and ended up getting cleaners and a laundry service until she could no longer afford them. She could not recall if she mentioned this to Mr Mate when he did his assessment.
She is very concerned that she has been unable to work towards her goals of finding a partner and having children. She has spoken with her psychologist about these worries and the psychologist has suggested some strategies to cope with these thoughts.
Ms Habib stated that she has a part-time job working in disability but is currently on sick leave. When she is at work, she works four days each week for six hours a day.
Ms Varney asked Ms Habib about Mr Mate’s assessment of her capacities. Ms Habib disagreed with Mr Mate’s view that she could do tasks independently and stated she needs help with most activities due to her fatigue and level of pain. If she does any task, she needs to have a rest to recover her strength.
Ms Habib believes she needs help at home with cleaning, her laundry, and meal preparation. She stated that with her new plan in place she is getting some help with these tasks. Her support workers also help with helping her get to medical appointments and social activities, such as having a meal of coffee or going to hair and beauty appointments.
Ms Habib has a gym membership but can’t get there on her own. She does feel better when she does a gym session. Ms Habib had been in a book club but could not finish reading the listed books.
When asked about her request for the residential rehab at the Raindrum Facility she stated that she believes it would be good for her, help her address her trauma and hopefully have a much better quality of life.
Ms Habib reported that she had not done much research into the other residential rehabilitation services offered by her local mental health services.
In her last plan, Ms Habib sourced support workers from three different services and had organised these appointments herself. She acknowledged that she had been using too many support worker hours too quickly and was more mindful of this now.
When asked why she considered she needed 10 hours of cleaning services each week, Ms Habib stated that she could not do this herself, and if her unit is not clean, she becomes unwell.
When asked how the requested 170 hours of support coordination would be used, Ms Habib stated that she needs help in managing her plan and supports and when she is unwell.
Regarding her request for 25 hours per week in administrative assistance, Ms Habib stated this would help her manage her appointments and keep track of her emails. She stated she has problems with memory and concentration, which she put down to her trauma.
Asked about her request for support to do further studies, Ms Habib stated that she has now decided not to complete her master’s course but would still like to do the patisserie course. She feels this course would help with her social isolation and she could learn new skills.
Mr Mate’s evidence
After providing a summary of his qualifications and experience, providing an outline of his methodology of conducting the assessment, and confirming that his report was correct, Mr Mate answered a series of questions from Ms Varney and Ms Habib.
Mr Mate stated that when conducting an assessment of a person with a psychosocial disability he would focus on their thinking, mode of communicating, and their home environment.
He stated that he had Ms Habib simulate personal care tasks such as showering, and based upon her responses and her appearance, he considered she was independent in her self-care. In this regard she was appropriately dressed in clean clothes and her hair was tidy.
He also considered that Ms Habib had the capacity to manage cleaning and laundry. He based this on her responses to simulate certain cleaning tasks such as using a stick vacuum cleaner, packing a dishwasher, and picking up a laundry basket, as well as the overall appearance of her unit - which appeared neat, clean, and well cared-for. He also thought that her personal appearance and wearing clean clothes also suggested she could do her own laundry.
He did not observe Ms Habib to have any limitations when he observed her doing these tasks.
Mr Mate, responding to whether Ms Habib had told him she had been using professional cleaners and a professional laundry service, he stated that she did not mention that to him.
He did say, however, that Ms Habib had told him she lacked motivation to do domestic tasks, and this was a common issue for people with psychosocial disabilities.
He did not observe her having any issues with independent mobility.
In Mr Mate’s view, Ms Habib did have some indications of somewhat disordered thinking. She would move away from responding to a question which required him to prompt her to return to the topic.
Ms Varney asked Mr Mate as to whether Ms Habib could access residential rehab or a mental health retreat through the mental health system of other service delivery systems.
He stated that there were rehabilitation services available through local community health services. He stated that Royal Melbourne Hospital had residential facilities and should be able to offer similar supports to those being offered by the Raindrum Retreat.
He did not state that someone wishing to utilise this would need to be engaged with a community mental health service.
Ms Varney asked Mr Mate about Ms Habib’s request for the services of a personal chef. He did not believe Ms Habib needed this support as she could prepare meals independently. It could lead her becoming reliant on such support, become less independent and result in her having a more sedentary lifestyle.
Ms Varney referred Mr Mate to Ms Habib’s occupational therapist, Ms Raifana Zulkifli’s, OT report (at JTB 309-310) where Ms Zulkilfi recommended 24/7 support worker assistance to provide her with emotional support.
Mr Mate did not consider the provision of emotional support was a strong enough reason to provide Ms Habib with support to such an extent. He did not consider at the time he conducted his assessment that Ms Habib needed that level of support, and her recommendation was not in line with his own recommendations concerning the level of support worker assistance.
He would suggest that providing Ms Habib with a greater level of capacity building support would be more beneficial and that support could be in the form of Ms Habib having greater support from a psychologist, an occupational therapist, or a behaviour support specialist.
When asked about Ms Habib’s request for 170 hours of Level 3 support coordination, he prefaced his answer by saying that he was not a support coordinator himself, but still felt this was not warranted as it amounted to 3 hours or more each week.
He thought the type of support that would better assist Ms Habib would be provided by an occupational therapist who could assist Ms Habib develop a more consistent routine. He gave a few examples of the types of strategy an occupational therapist could use to assist Ms Habib in this regard.
Ms Habib did not directly ask Mr Mate any questions but stated that he considered his comments about her method of communication was inaccurate. She stated that she did not consider that she was thought disordered and was merely trying to explain her circumstances to him including her level of social isolation and lack of informal supports.
Mr Mate acknowledged Ms Habib’s comment and added that perhaps one way for Ms Habib to develop such supports would be for her with some support worker assistance at least initially, participate in community groups such as art groups, cooking and social groups could prove beneficial for her.
The Agency’s Final Submissions
I do not propose to provide a detailed record of the Agency’s closing submissions as I will refer to them in the following section where I will consider each of the requested supports.
Ms Habib’s closing submissions
When asked if she wanted to make any concluding remarks, Ms Habib she wanted to address what had been stated by Ms Varney in her closing submissions as they related to her abilities to do her own cleaning and laundry as well as some general remarks.
She stated that she has become physically unwell and is experiencing pain.
Because of this, she has been unable to attend to her cleaning and laundry. Her incapacity on this front is not due to a lack of motivation.
She stated that because of her limitations she has needed to hire professional cleaners. They had been very helpful, but she could no longer afford them.
She told the Tribunal that she had not been told when she was hospitalised and afterwards what alternative supports may be available. As a result, she has been a long time isolated and without support. She reiterated that she has no informal supports and because of her circumstances she requires high-intensity support.
She told me that the supports she requested will assist in making life better for her.
CONSIDERATION
The various supports I am required to consider and then make findings as to whether they are reasonable and necessary are:
(a)24/7 support worker assistance on a 1:1 basis in relation to different activities, including but not limited to assisting the Applicant to undertake activities of daily living, accessing the community, and attending clinical appointments.
(b)Professional cleaning services of 10 hours per week.
(c)An increase in funding for support coordination to provide her with 170 hours per year of Level 3 Support Coordination Services.
(d)Assistive technology items for around the home.
(e)25 hours per week of legal services.
(f)25 hours per week of administrative services.
(g)Study support for completion of master’s degree and attending a Patisserie course in the United States.
(h)$567,600 for 12 months residence and participation in all services offered at the Byron Private Rehabilitation and Mental Health Retreat.
(i)$5,000 per week for the services of a professional chef.
Before conducting that assessment, I think it is important to identify the general principles enshrined in both s 4 and s 17A of the Act that I consider should inform my assessment.
The principles in s 4 I consider of relevance to Ms Habib’s application are the following:
·People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional, and intellectual development. (s 4 (1))
·People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development. (s 4 (2))
·People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives. (s 4 (8))
·Reasonable and necessary supports for people with disability should:
(a) support people with disability to pursue their goals and maximise their independence; and
(b) support people with disability to live independently and to be included in the community as fully participating citizens; and
(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment. (s 4 (11))
The principles in s 17A I consider relevant to this case are:
·Reasonable and necessary supports for people with disability should:
(a) support people with disability to pursue their goals and maximise their independence; and
(b) support people with disability to live independently and to be included in the community as fully participating citizens; and
(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment. (s 17A (1)).
·The National Disability Insurance Scheme is to:
(a) respect the interests of people with disability in exercising choice and control about matters that affect them; and
(b) enable people with disability to make decisions that will affect their lives; and
(c) support people with disability to participate in, and contribute to, social and economic life. (s 17A (3)).
I further note that the decision by the Full Court of the Federal Court in National Disability Insurance Agency v WRMF (2020) FCR 415 provides additional guidance:
…the supports to be provided to a person who qualifies as a participant are intended to accommodate an individual’s particular impairments and to assist that particular individual to be a participating member of the Australian community, and to do so on the basis of the values set out in the objects and guiding principle clauses of the Act, as well as the values set out in section 17A of the Act.[10]
[10] At 446-447.
In making this decision, I also consider Rule 2.4 to have regard to both the objects and principles of the Act and the need to ensure the financial sustainability of the Scheme.
I note that in some respects, several of Ms Habib’s requests for funding could be viewed as unusual, and superficially at least, could be dismissed as not the types of support that would be generally considered to be related to those disabilities that granted her access to the Scheme, namely schizophrenia and PTSD.
Having made that observation, I am required to consider all her requests in a full and impartial manner, which I shall do in the following paragraphs.
I will firstly address those criteria that the Agency has specified as not being NDIS supports in accordance with sections 10(4) and 34(1)(f) of the Act. These are items v, vii, viii, and ix of those listed in paragraph 147. If I decide that any of the requested supports is not a NDIS support, I am not required to address the other six remaining criteria in section 34 of the Act. I will then consider the remaining supports namely 24/7 support worker assistance, professional cleaning, administrative support, increased support coordination funding and assistive technology.
25 hours per week of legal services to enable the Applicant to bring a legal action seeking compensation against an individual, company and a high school for harm caused to her
The Agency submitted that the category of this support is listed in Schedule 2 of the Transitional Rules under item 2 (h) – legal costs.
It also does not meet the requirement in section 34(1)(aa) as it is not necessary to address the needs of the participant arising from an impairment in relation to which the participant meets the disability requirements.
That the requested cost of funding legal services is not a NDIS support and further is not necessary to meets Ms Habib’s impairment arising out of one of her impairments.
The requested support cannot be approved.
Study support for completion of master’s degree and attending a Patisserie course in the United States including the cost of tuition, travel, accommodation, and support worker assistance
The Agency in its submission also stated that the tuition costs Ms Habib is seeking are not NDIS support. It also submitted that the requested supports could be considered to consist of three elements, namely tuition fees, travel and related costs, and accommodation.
Ms Habib was originally seeking such funding to cover the cost of completing her master’s in social work as well as attending a patisserie school in the United States.
Ms Habib, in her evidence, advised that she was no longer looking to complete her master’s degree. I will therefore only address her request for funding for the patisserie course in the United States.
I was referred by the Agency to item 2(g) in Schedule 2 (education and tuition fees) which indicates that education and tuition fees including fees for school, vocational education and training and higher education are not supports generally considered to be NDIS Supports.
The cost of travel (including visa fees) seems to come within item 6(a) of Schedule 2 which states that the following are not NDIS supports:
cruises, holiday packages, holiday accommodation, and airfares, including interstate and overseas travel, and passports, visas, activities and meals included in travel.
The cost of accommodation while attending the patisserie course also falls within item 6(a) of Schedule 2 in that such accommodation in an overseas location while attending such a course would appear to come within holiday accommodation.
If I am incorrect in that assessment, it also falls with item 1(a) of Schedule 2 which includes the cost of rent.
The cost of having support worker assistance while participating in the patisserie course I shall address when considering item (i) of Ms Habib’s requested supports (24/7 support worker assistance).
Based upon the above assessment I cannot approve this requested support.
$567,600 for 12 months residence and participation in all services offered at the Byron Bay, Raindrum Private Rehabilitation and Mental Health Retreat
Ms Habib’s description of this requested support was that it was for rehabilitation and attending a mental health retreat in which a multi-disciplinary team provides support to its residents for rehabilitation and recovery.
The Agency’s submission is that the requested support potentially comes under the following items in Schedule 2:
·time-limited, recovery-oriented services and therapies:
(i) where the predominant purpose is treatment directly related to the person’s health status; (item 12(c)(i))
·health retreats (Item 12(n))
From what I have read from the submitted promotional material and Ms Habib’s description of the facility in her oral evidence, I consider that it is covered by both items 12(1)(c)(i) and (n).
It therefore cannot be considered to be a NDIS support and therefore it is not open to me to find it is reasonable and necessary.
This requested support is not approved.
$5,000 per week for the services of a professional chef to prepare meals for the Applicant in her home
This support also consists of two elements, namely the cost of food and the cost of a chef providing meal preparation services.
The cost of the food falls under item 3(a) of Schedule 2 namely:
groceries including all food, beverage, cleaning, household and health products.

Item 3 in Schedule 2 is one of several categories relating to day-to-day living costs.
I agree that the cost of the food in this requested support is not a NDIS support and cannot be approved.
The separate element of food preparation is listed under item 23(a) of Schedule 1 as follows:
·Supports that provide assistance with essential household tasks that a participant is not able to do themselves because of their disability.
This includes the following:
(a) meal preparation and delivery
Therefore, it appears that this element of the requested support can be a NDIS support.
However, this element must meet the other 6 criteria in section 34 to be found reasonable and necessary.
In this regard the Agency submitted that having such support in place would not be effective and beneficial (section 34(1)(d) and further would not represent value for money (section 34(1)(c).
In relation to Ms Habib’s ability to prepare meals, the Agency asserted that according to Mr Mate’s report[11] and Ms Habib’s own evidence, she can prepare her own meals.
[11] JTB 365
Further, given that a chef would be preparing all of Ms Habib’s meals three times a day, she would not be required to do any meal preparation herself. This would not be beneficial in the long term for her as she could become reliant on such support, and it would potentially decrease her independence.
It would also not represent values for money for the same reasons.
While I acknowledge the reasons Ms Habib has given for why she experiences difficulties in preparing her own meals, I do not think this support would assist her to achieve her expressed goal in her current plan of ‘accessing support so I can live as independently with my disability as possible’. Therefore, I do not consider the requested support meets s 34(1)(a) namely support allowing a participant to pursue their goals.
In addition, a proportion of her currently funded support worker hours could be utilised in improving her meal preparation skills.
Therefore, I do not consider that this requested support can be approved as it is not beneficial and effective and does not represent value for money.
This requested support is not approved.
Additional support worker hours (24 hours seven days per week)
Ms Varney, in her closing submissions, again referred to Mr Mate’s report and evidence at the hearing. In Mr Mate’s view, this level of support worker assistance would not be required as Ms Habib has a degree of independence in her various domestic tasks including cooking, cleaning, laundry, and self-care.
I understand that Ms Habib disputes that assessment and says that she needed to hire professional cleaners and a laundry service. I do not doubt that was the case, however I do not consider this around-the-clock support will better assist her.
Such a high level of assistance will certainly place her at high risk of dependence and loss of independence. It therefore cannot be considered to be effective and beneficial.
I also consider that it does not represent value for money given what would amount to potentially hundreds of thousands of dollars in additional support funding.
The Agency has recommended that Ms Habib’s plan include additional hours for psychology, occupational therapy, and support coordination.
These appear to me more targeted supports designed to address Ms Habib’s real concerns while at the same time giving her new skills and strategies to develop her capacities in these areas. The additional support coordination funding could be used to better timetable Ms Habib’s support worker hours working in tandem with the allied health professionals, with a view to maximising the benefits of the existing support worker hours and ensuring Ms Habib does not exhaust her funding.
For these reasons I cannot approve this requested support.
Administrative support (25 hours per week)
From my notes taken at the hearing, it does not appear that Ms Varney addressed this specific requested support in her closing submissions. In any event, I do not have contemporaneous notes of what she may have stated on that particular issue.
However, it appears that this requested support effectively falls within Ms Habib’s request for 24/7 support worker assistance.
In her evidence, Ms Habib stated she needed this specific assistance to enable her to schedule her appointments and keep on top of her emails. She stated in her evidence she finds this difficult as she has problems with her concentration and memory.
I consider similar considerations apply here as I have raised in the preceding paragraph. I do not consider that Ms Habib needs what amounts to 5 hours each weekday of administration assistance.
Again, if the focus is on building Ms Habib’s own capacities in this area, the additional therapy hours particularly from the occupational therapist may prove useful in giving Ms Habib the strategies to improve her ability to manage her appointments and keep on top of her correspondence.
In formal terms I do not consider the requested support will be effective and beneficial and value for money.
Professional cleaner (10 hours per week)
As I have observed in the preceding paragraphs, Mr Mate’s view is that Ms Habid can independently maintain her one-bedroom unit. Ms Habib disputes that assessment.
Ms Varney notes that there is currently four hours a month in her existing plan specifically for cleaning. The requested support would in effect amount to have a cleaner attend Ms Habib’s unit every weekday for two hours. This appears to me to be excessive. It is certainly not value for money.
As I have noted in previous paragraphs, the Agency has recommended to me that I approve additional hours for occupational therapy. This support properly utilised could also be used to develop Ms Habib’s capacity and address her underlying concerns about her fatigue levels and pain. Thes strategies may include having Ms Habib break these tasks into smaller and more manageable units that will not affect her as greatly.
I do not consider for these reasons this requested support is reasonable and necessary.
Increase in funding for support coordination to provide her with 170 hours per year of Level 3 Support Coordination Services
This level of support coordination is usually required for those participants with significant and complex support needs, usually requiring the coordination of a multidisciplinary teams of support workers and allied health professionals.
While Ms Habib clearly needs supports to assist her in many aspects of daily living, her presentation is not at such a high level that this number of hours appears warranted. What is required is the better use of her existing hours including a moderate increase in the current level of funding as recommended by the Agency.
I consider that the requested level of support and what would amount to three and a half hours each week is excessive and would not represent value for money.
For the reasons outlined above, I cannot approve this requested support.
Funding for assistive technology
Ms Varney noted in her closing submissions that Ms Habib has not identified specific items of assistive technology. What she has specified items such as a workstation and chair are better classified as standard household furniture and therefore do not qualify as assistive technology.
She also noted that Mr Mate did not include any assistive technology items in his list of recommendations.
It appears therefore that there are no assistive technology items for me to consider and as such I do not need to make any findings on this topic.
Respondent’s recommendations for additionally funded supports
Ms Varney in her submission noted that the Agency considered that the following additional supports should be added to Ms Habib’s existing plan in recognition of the need for appropriate additional assistance for her:
·26 Hours of level 2 support coordination
·24 Hours of psychology sessions
·24 Hours of occupational therapy
I note that the same recommendation was also made in the Respondent’s most recent Statement of Facts Issues and Contentions dated 7 March 2025.
As I have noted a number of times earlier in my consideration of Ms Habib’s requests, this recommendation of the Agency may be a better approach, in that it works to increase Ms Habib’s capacities and independence over time.
Conclusion
Based on the Tribunal’s above findings, not all the criteria under section 34(1) of the NDIS Act are satisfied in relation to the nine items of requested support. Having considered all the evidence in this matter, the Tribunal is therefore not satisfied that the requested funding meets all the section 34(1) criteria to be approved as ‘reasonable and necessary’ under the NDIS Act and for inclusion in the statement of participant supports in Ms Habib’s NDIS plan.
However, taking account of the Agency’s recommendations, pursuant to sub 105(b) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal varies the decision under review made on 16 March 2023 such that, under section 33 of the National Disability Insurance Scheme Act 2013 (Cth), the statement of participant supports specifies:
(j)pursuant to s33(2)(a) of the Act, replicates the general supports (if any) that will be provided to, or in relation to, the Applicant in the same manner identified in the Applicant’s statement of participant supports dated 3 January 2023.
(k)pursuant to s33(2)(b) of the Act, states the following reasonable and necessary supports in the Applicant’s statement of participant supports, calculated at a rate as set out in the National Disability Insurance Scheme Pricing Arrangements and Price Limits:
Core Supports
Assistance with Daily Activities (plan-managed):
·8 hours per week of assistance with personal domestic activities.
·3 hours per week of assistance with self-care (weekday daytime rate).
·4 hours per month of house cleaning and other household activities.
·3 days per year of STA at a 1:3 ratio (weekday rate).
Assistance with Social, Economic and Community Participation (plan-managed):
·6 hours per week of assistance to access community, social and recreational activities (weekday daytime rate).
·4 hours per week of assistance to access community, social and recreational activities (Saturday rate).
Consumables (plan-managed):
·$600.00 - Low-Cost AT - Communication or Cognitive Support.
·$200.00 - Low-Cost AT - Personal Care and Safety.
Transport (plan-managed):
·$2,676.00 for periodic transport funding Level 2.
Capacity Building
·Choice and Control (NDIA-managed):
·Plan management – set up costs.
·Plan management – monthly fees.
Daily Activity (plan-managed):
·24 hours of Assessment Recommendation Therapy or Training – Other Professional for occupational therapy.
·24 hours of Assessment Recommendation Therapy or Training – Psychologist.
·10 hours per month of Skill Development and Training.
Health and Wellbeing (plan-managed):
·6 hours for Advice provided by an Exercise Physiologist regarding exercise required.
·2 hours per month for Personal training provided by a Personal Trainer.
Support Coordination and Psychosocial Recovery Coaches (plan-managed):
·85 hours per year for Psychosocial Recovery Coaching - Weekday Daytime.
·26 hours per year for Level 2 support coordination.
(l)pursuant to s33(2)(c) of the Act, stipulates the date by which the Respondent must reassess the Applicant’s statement of participant supports as 12 months from the date on which the Applicant’s statement of participant supports takes effect.
(m)pursuant to s33(2)(d) of the Act, to provide for the management of the funding of the Applicant’s reasonable and necessary supports as outlined in paragraph (1)(b) above; and
(n)pursuant to s33(2)(e) of the Act, replicates the management of other aspects of the plan in the same manner in which they are managed in the Applicant’s statement of participant supports dated 3 January 2023.
Decision
The Tribunal sets aside the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth) as it relates to the supports specified in paragraph 215 of this decision.

I certify that the preceding 207
(two hundred and fifteen)
paragraphs are a true copy of the
reasons for the decision herein
of General Member A. Williams

…..........................[sgd]...........................................
Dated: 10 April 2025

Dates of Hearing:

20^th and 21^st March 2025

Solicitor for the Applicant:

Self-represented

Solicitor for the Respondent:

Ms Kate Heremaia, Mills Oakely Lawyers

Counsel for the Respondent:

Ms Sarah Varney

Dates of Hearing:	20^th and 21^st March 2025
Solicitor for the Applicant:	Self-represented
Solicitor for the Respondent:	Ms Kate Heremaia, Mills Oakely Lawyers
Counsel for the Respondent:	Ms Sarah Varney