Hart and Chief Executive Officer, National Disability Insurance Agency (NDIS) - [2025] ARTA 1821

Hart and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2025] ARTA 1821 (17 September 2025)
Applicant:Sophie Hart
Respondent: Chief Executive Officer, National Disability Insurance Agency

Tribunal Number: 2024/2253
Tribunal: General Member A Colvin
Place:Brisbane
Date:17 September 2025

Decision:
The Tribunal sets aside the decision under review pursuant to s105(c)(i) of the Administrative Review Tribunal Act 2024 (Cth). The matter is remitted to the Respondent for reconsideration with a direction that within 14 days of the date of this Decision the Respondent must facilitate the approval of a new Statement of Participant Supports (SOPS) for the Applicant, containing the following provisions:
1. A provision that the following reasonable and necessary supports that will be funded under the National Disability Insurance Scheme Pricing Arrangements and Price Limits as updated from time to time (unless otherwise stated):
(a) Supported Independent Living (SIL) for 1:1 support for 24 hours per day, 7 days per week including:
(i) Inactive overnight supports;
(ii) 21 hours per week of 1:1 support for assistance to access the community, social and recreational activities; and
(iii) 1,534 hours per year of 1:1 support to be provided by Alister French on the basis of 38 hours per week for six months, 24 hours per week for the following three months and 18 hours per week for the final three months but which can be utilised flexibly to provide support as required.

(b) Specialised Disability Accommodation as follows:
(i) House
(ii) Robust Build
(iii) 2 bedrooms
(iv) Breakout room
(v) Sole occupancy/single resident
(vi) Sunshine Coast Queensland.

(c)     10 hours per year for dietitian support.
(d)     12 hours per year for exercise physiology.
(e)     50 hours per year for occupational therapy.
(f)      4 hours per year for clinical nurse continence assessment.
(g)     26 hours per year for physiotherapy.
(h)     3 hours per year for podiatry.
(i)      Level 2 transport support.
(j)      40 hours per year individual skills development.
(k)     90 hours per year specialist behavioural intervention support.
(l)      30 hours per year behaviour management plan including training in behaviour management strategies.
(m)    45 hours per year of level 3 support coordination.
(n)     55 hours per year of level 2 support coordination.
(o)     Second skins in accordance with the quote of Second Skin Pty Ltd dated 12 February 2025 excluding the quote for consultations, provider travel (labour and non-labour costs) which are accounted for in the increased occupational therapy supports.
(p)     Custom footwear, custom orthotics and modifications for Footwear 1 and Footwear 2 in accordance with the quote of Complete Custom Footwear dated 27 February 2025.
(q)     Consumables and Assistive Technology in the current SOPS replicated for 12 months.

2. The supports at (a)(iii), (j), (k), (l), (m) and (n) above are to be Agency-managed.
3. The remaining supports are to be self-managed.
4. That the date by which the Respondent must review the plan is 12 months after the SOPS is approved.

.................[SGD]...................
General Member A Colvin
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – consideration of s 34 National Disability Insurance Scheme Act 2013 (Cth) – overnight support – consideration of s 43(3) National Disability Insurance Scheme Act 2013(Cth) – whether SIL funding must be Agency-managed – restrictive practices – providers that are not registered NDIS providers – family member providing paid support – decision set aside.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth)
National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth)
National Disability Insurance Scheme (Incident Management and Reportable Incidents)
Rules 2018 (Cth)
National Disability Insurance Scheme Amendment (Management of Funding and Plan Management) Rules 2025 (Cth)
National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 Disability Services Act 2006 (Qld)
Cases
Re Drake v Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 60
National Disability Insurance Agency v WRMF [2020] FCAFC 79
VKKG and National Disability Insurance Agency [2025] ARTA 789
Secondary Materials
NDIS – Operational Guidelines - Reasonable and necessary supports
NDIS – Operational Guidelines – Supported Independent Living
Statement of Reasons
BACKGROUND

Ms Sophie Hart is a young adult and a participant in the National Disability Insurance Scheme (NDIS). At age three, she had a brain tumour. She now has an acquired brain injury and autism spectrum disorder – level 2. She was granted access to the NDIS based on physical and psychosocial impairments arising from those two conditions.
At the time of the hearing, Ms Hart resided with her mother, Ms French, in a home owned by Ms French. Ms Hart received informal support from her mother and had formal support most days from support workers. Ms Hart’s brother, Mr French, resided interstate but provided intermittent support. The home where Ms Hart and Ms French lived was on 10-acres and had a hydrotherapy pool and animals, including chickens, dogs, and a horse. Ms Hart enjoyed swimming each day in the hydrotherapy pool and helping with the animals. Ms Hart has a long history of behaviours involving physical aggression and property damage, but there were no approved restrictive practices in place.
As an NDIS participant, Ms Hart has a plan that includes a statement of participant supports (SOPS). It includes funding for support workers and Ms French manages that funding. The main issue in dispute in this matter is whether that funding must now be managed by the National Disability Insurance Agency (Agency).
On 1 December 2023, a delegate of the Chief Executive Officer (CEO) of the Agency approved a SOPS in a plan for Ms Hart commencing on the same date. The Agency varied that decision on internal review on 19 March 2024.[1] On 11 April 2024 Ms Hart applied to the Administrative Appeals Tribunal (AAT) seeking review of the decision dated 19 March 2024.[2]
[1] T2.
[2] From 14 October 2024, the AAT became the Administrative Review Tribunal (Tribunal). Applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal, and the Tribunal has authority to continue and finalise any aspect of the review not already completed by the AAT: Transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024.
While proceedings were ongoing, a delegate of the CEO made further decisions dated 4 March 2025 and 26 May 2025, the latter being a decision to approve SOPS in a plan commencing on 26 May 2025 and ending on 25 May (the current plan). Ms Hart’s application for review is taken to be an application for review of the decision dated 19 March 2024 and the decisions made on 4 March 2025 and 26 May 2025, by virtue of the operation of subsection 103(2) of the National Disability Insurance Scheme Act2013 (Cth) (the NDIS Act).
This review is about the supports in the SOPS in Ms Hart’s current plan. By the time of the hearing, some supports on which the parties were able to reach agreement had already been incorporated into the SOPS in the current plan. The parties had also reached agreement that funding for the following further supports should be included in the SOPS in the current plan:
·specialist disability accommodation (SDA);
·second skins; and
·custom footwear.
As set out later in these reasons, I consider the Agency’s concessions regarding those supports are appropriately made and that these are each reasonable and necessary supports for Ms Hart that should be included in the SOPS in the current plan.
By the time of the hearing, the only support on which the parties were not in agreement was funding for supported independent living (SIL). The Agency conceded that the SOPS in Ms Hart’s current plan should include SIL funding for 1:1 support 24 hours/day for seven days/week (1:1 24/7 support). It also agreed that some of that funding could be used to pay Ms Hart’s brother, Mr French, to provide support to Ms Hart.
There were three things however on which the parties disagreed:
·whether the SIL funding should include funding for active overnight support worker assistance;
·whether it should be called ‘SIL’ funding; and
·whether it could be self-managed or must be managed by the Agency (Agency-managed).
It was the last issue, Agency-management of the SIL funding, that most concerned Ms French. A change to Agency-management would necessitate use of registered NDIS providers. None of Ms Hart’s support workers were registered NDIS providers. The Agency however was concerned about risk to Ms Hart where some of the SIL funding would be used to pay Ms Hart’s brother and where a restrictive practice (physical restraint) might be utilised by support workers who were not registered NDIS providers.
The hearing took place by videoconference on 14 and 15 July 2025. Ms Hart was represented by Ms French. Documents available to the Tribunal included a Hearing Bundle (HB), comprised of 942 pages, lodged by the Agency (Exhibit 1) and an email dated 6 July 2025 from Ms French to the Tribunal (Exhibit 2). The Agency also provided a Statement of Facts Issues and Contentions (SFIC) dated 27 June 2025, a List of Authorities comprised of 536 pages, and a proposed order.
THE LAW
The legislative framework
The statutory provisions relevant to this application for review are found within the NDIS law, including:[3]
[3]THE STATEMENT OF THE LAW THAT FOLLOWS IN PART ADOPTS IN THE SUMMARY IN VKKG AND NATIONAL DISABILITY INSURANCE AGENCY (NDIS) [2025] ARTA 789.
·the NDIS Act;
·the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Supports Rules);
·the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth) (the Miscellaneous Provisions Transitional Rules);
·the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth) (the NDIS Supports Transitional Rules);
·the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (the Restrictive Practices Rules);
·the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth) (the Provider Registration Rules);
·the National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018 (Cth) (the Incident Management Rules); and
·the National Disability Insurance Scheme Amendment (Management of Funding and Plan Management) Rules 2025 (Cth) (the Management of Funding Rules); and
·the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (the SDA Rules).
The Agency also issues Operational Guidelines. The Tribunal is not bound to follow Operational Guidelines issued by the Agency but, in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task.[4] Operational Guidelines considered in the present matter, published by the Agency on its website, include the following:[5]
·Reasonable and necessary supports; and
·Supported Independent Living
[4] Re Drake v Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634.
[5] Webpage: ourguidelines.ndis.gov.au
Approving SOPS in participants’ plans
Section 3 of the NDIS Act sets out the objects of the NDIS Act. Sections 4 and 5 of the NDIS Act set out general principles guiding actions under the NDIS Act, and sections 17A and 31 of the NDIS Act set out principles that relate to participation in the NDIS and plans.
If a person becomes a participant, under section 32 of the NDIS Act the CEO must facilitate the preparation of a plan for the participant. Ms Hart’s plan is an ‘old framework plan.’ For those plans, section 33 of the NDIS Act sets out the matters that must be included in a participant’s plan. A plan must include a statement of the participant’s goals and aspirations. It must also include a SOPS, prepared with the participant and approved by the CEO.
The SOPS in a participant’s plan must specify, among other things, ‘the reasonable and necessary supports (if any) that will be funded’ under the NDIS and the ‘management of the funding’ for supports under the plan.[6]
[6] Paragraphs 33(2)(b) and (d) of the NDIS Act.
In deciding whether to approve SOPS in a participant’s plan the CEO must comply with the following mandatory requirements, contained in subsection 33(5) of the NDIS Act:
(5)In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a)have regard to the participant’s statement of goals and aspirations; and
(b)have regard to relevant assessments conducted in relation to the participant; and
(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d)apply the National Disability Insurance Scheme rules (if any) made for the purposes of 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.
Reasonable and necessary supports
Section 34 of the NDIS Act deals with ‘reasonable and necessary supports’. Subsection 34(1) provides as follows:
34 Reasonable and necessary supports
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(aa)the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation.
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks, and the community to provide;
(f)the support is a NDIS support for the participant.
Note: For the purposes of paragraph (aa):
(a)the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b)a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
The matters set out above in subsection 34(1) of the NDIS Act are more than mandatory considerations. They are more in the nature of criteria that the decision‑maker must be positively satisfied about on the material.[7]
[7] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at 201.
Paragraph 34(1)(f) of the NDIS Act requires the CEO to be satisfied that the support is ‘a NDIS support’ for the participant. Section 10 of the NDIS Act defines ‘NDIS support’. The effect of that section, in essence, is that a support is an NDIS support if it is declared by rules to be an NDIS support, provided that rules have not declared that the support is not an NDIS support, and provided that the support is not sexual services, alcohol, or illicit drugs. The NDIS Supports Transitional Rules declare certain items to be NDIS supports and certain items to not be NDIS supports.
In determining whether the requirements in subsection 34(1) of the NDIS Act are met, the Support Rules are relevant.[8] The Miscellaneous Provisions Transitional Rules are also relevant, including Rule 7, which requires consideration be given to whether a support is most appropriately funded through the NDIS and not through other systems or bodies as part of universal service obligations or in accordance with reasonable adjustments required under laws dealing with discrimination.
[8] Subsection 35(2) of the NDIS Act.
The NDIS Act was amended on 3 October 2024 by the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth) (the Amending Act). Although those amendments were made after Ms Hart applied to the AAT, the amendments to section 34 apply in relation to a SOPS included in an old framework plan for a participant if the SOPS is approved or varied on or after 3 October 2024.[9] This means that if the Tribunal varies the SOPS in Ms Hart’s plan it must apply the current provisions of the NDIS Act and Rules set out above.
Specifying the management of funding in SOPS
[9] Item 129(1), part 3, schedule 1 of the Amending Act.
The ways funds may be managed
As set out earlier, in addition to specifying supports that will be funded, the SOPS in a plan must specify the management of the funding for supports under the plan.[10] The SOPS must specify that the funds are to be managed wholly, or to a specified extent:
·by the participant or the plan nominee (self-managed);
·by a registered plan management provider (plan-managed); or
·Agency-managed.[11]
[10] Paragraph 33(2)(d) NDIS Act.
[11] Section 42 NDIS Act.
The way that funds are managed impacts, among other things, who may be engaged to provide supports to the participant. The NDIS Act enables service providers (including individuals and organisations) to apply to become registered NDIS providers.[12] To the extent that funding for supports under a plan is Agency-managed, the plan must provide that the supports are to be provided only by registered NDIS providers.[13] There is no similar restriction for funding in a plan that is self-managed or plan-managed.
[12] Section 73C and 73E NDIS Act.
[13] For new framework plans, see subsection 32D(7), and for old framework plans, see subsection 33(6) NDIS Act.

Participants can choose whether funds are self-managed, plan-managed by a nominated plan manager, or Agency-managed. If a participant makes such a request, the Agency must give effect to that request subject to some exceptions.[14]
[14] Section 43 NDIS Act.
Circumstances where funds must be Agency-managed
Where a participant chooses to self-manage funds, subsection 43(3) of the NDIS Act states that the SOPS in the participant’s plan must provide for the funding to be Agency-managed if subsection 44(1) of the NDIS Act applies in relation to the participant. Subsection 44(1) applies to a participant if the participant is an insolvent or convicted of certain offences, or where compliance with provisions regarding acquittal of funds is unlikely. It also applies if paragraph 44(1)(b) is met:
(b) the CEO is satisfied that the participant’s management of the funding for supports under the plan to a particular extent would:
(i) present an unreasonable risk to the participant; or
(ii) permit the participant to manage matters that are prescribed by the National Disability Insurance Scheme rules as being matters that must not be managed by a participant.
Considerations for whether self-management presents an unreasonable risk
In determining, for the purposes of subsection 44(1) of the NDIS Act, whether self-management would present an unreasonable risk to a participant, regard must be had to Part 3 of the Management of Funding Rules. Rule 6(2) provides:
Matters to which the CEO must have regard – participant
(2) The following are matters to which the CEO must have regard in considering, for the purposes of subsection 44(1) of the Act, whether a participant’s management of the funding for supports under a plan to a particular extent would present an unreasonable risk to the participant:
(a) whether, and the extent to which, any identified risk could be mitigated by:
(i)      particular supports, safeguards or strategies that are, or will be, included in the participant’s statement of participant supports to which the plan management request relates;
(ii)      any informal, community or mainstream supports that the participant has in place;
(b) whether, and the extent to which, any identified risk has been mitigated in the past by:
(i)      particular supports, safeguards or strategies that were included in the participant’s statement of participant supports;
(ii)      any informal, community or mainstream supports that the participant had in place;
(c) the nature of the supports that are, or will be, included in the participant’s statement of participant supports to which the plan management request relates;
(d) whether, and the extent to which, the participant is at risk of experiencing:
(i)      physical, mental, or financial harm;
(ii)      exploitation or undue influence;
(e) the participant’s ability or capacity to make decisions or to appropriately manage finances, taking into account any support or assistance the participant is likely to receive to do so;
(f) whether a court or tribunal has ordered another person to manage, wholly or partly, the property or finances of the participant;
(g) any matters raised by the participant that the CEO considers relevant;
A similar provision applies where a plan nominee manages the funding for supports under a plan: Rule 6(4) of the Management of Funding Rules.
Harm arising from poor quality or unsafe supports
One of the objects of the NDIS Act is to protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services (section 3). One of the general principles in the Act is that people with disability require access to a market for supports in which quality and contemporary best practice is promoted (sub-section 5(15) of the NDIS Act).
In that context, the NDIS legislative scheme then includes extensive provisions regulating matters such as registration for providers, incident reporting, and the use of restrictive practices. It also creates the NDIS Quality and Safeguards Commission (the Commission) and the role of the Commissioner.
Registration for providers
The NDIS legislative scheme creates a mechanism for service providers to become a registered NDIS provider. To be registered and remain registered, a provider must meet requirements set out in the Provider Registration Rules. Registered providers are also required to implement and maintain an incident management system.[15] The Incident Management Rules detail matters such as requirements for incident management systems and obligations regarding any reportable incidents.[16]
The Commissioner’s functions
[15] Section 73Y NDIS Act.
[16] Parts 2 and 3 of the Incident Management Rules.
The Commissioner has core functions that include promoting the safety of people with disability and developing a nationally consistent framework for screening workers involved in providing support to people with disability. The Commissioner also has a specific function regarding registration for registered NDIS providers’ and notification and management of ‘reportable incidents.’[17]
[17] Section 181F NDIS Act.
The NDIS Act also confers on the Commissioner a specific function regarding ‘behaviour support.’ That function is to provide leadership in relation to behaviour support, and in the reduction and elimination of restrictive practices by NDIS providers. One of the ways that the Commissioner is to provide that leadership is by overseeing the use of behaviour support and restrictive practices by registered providers.[18] ‘Restrictive practice’ is defined in the NDIS Act to mean any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability.[19]
[18] Section 181H NDIS Act.
[19] Section 9 NDIS Act.
To that end, the Commission has issued a Regulated Restrictive Practices Guide. Its purpose is to assist in identifying each regulated restrictive practice and to provide practice advice intended to reduce and eliminate the use of restrictive practices. [20]
Using restrictive practices when providing supports
[20] NDIS Quality and Safeguards Commission October 2020.
The NDIS legislative scheme also regulates the use of restrictive practices in the provision of supports to participants by limiting who may provide those services and by placing additional requirements on those providers.
Section 181F of the NDIS Act prohibits a person who is not a registered NDIS provider from providing a support if NDIS rules require the person to be registered to provide that support under a person’s plan. Failure to comply with this requirement exposes the person to a heavy civil penalty.[21]
[21] Subsection 73B(2) NDIS Act.
Rule 7(2) of the Provider Registration Rules then states that a person must be registered to provide a class of supports to a participant ‘if, during the provision of the supports, there is, or is likely to be, an interim or ongoing need to use a regulated restrictive practice in relation to the participant’. ‘Regulated restrictive practice’ is defined in Rule 4 to include a restrictive practice that involves certain kinds of restraint including:
(d) physical restraint, which is the use of physical force to prevent, restrict or subdue movement of a person’s body, or part of the person’s body, for the primary purpose of influencing the person’s behaviour but does not include the use of a hands-on technique in a reflexive way to guide or redirect a person away from potential harm or injury, consistent with what could reasonably be considered the exercise of care towards a person.’
Additionally, to be registered and remain registered, and provide services that fall within Rule 7(2) of the Provider Registration Rules, a provider must meet and comply with the standards in Schedule 4 of the Provider Registration Rules. Those standards include standards that:
·participants only be subject to regulated restrictive practices that meet State laws and Commonwealth laws and policies;
·the participant’s behaviour support plan is regularly monitored and reviewed, and is implemented effectively; and
·the use of a regulated restrictive practice is reported to the Commissioner.
The Restrictive Practices Rules also place conditions on the registration of all registered NDIS providers who use a ‘regulated restrictive practice.’[22] Those conditions include conditions that the provider:
·not use a regulated restrictive practice where a State or Territory law prohibits its use;
·only use a regulated restrictive practice in accordance with state or territory authorisation processes and a behaviour support plan; and
·record and give a monthly report to the Commissioner regarding use of regulated restrictive practices.[23]
[22] Defined in a way that is similar to the definition in the Provider Registration Rules.
[23] Part 2 Restrictive Practices Rules.
THE EVIDENCE
In addition to the documents set out earlier, the Tribunal heard oral evidence from Ms French, Mr French, Ms Wallace (Ms Hart’s occupational therapist), and Ms Curtis (a behaviour support practitioner who had been working with Ms Hart). The Agency engaged Ms Tracey (an occupational therapist) to undertake an independent assessment, and she also gave oral evidence.
Ms Hart’s goals and aspirations are described in her current plan as including goals to become an independent woman living in her own home with her family and friends in her life; to continue learning and improving her physical disabilities, working on her fitness and diet; to continue working on her health and wellbeing and learning more about how to keep herself healthy; to continue working on building independence; and to continue working on emotional regulation.
At the time of the hearing, as set out earlier, Ms Hart resided with Ms French in a three-bedroom home on acreage, owned by Ms French. There were no other occupants. Ms French provided daily informal support to Ms Hart. Mr French resided in a different state but provided intermittent informal support, usually over consecutive days. For example, he had provided support over consecutive days in late 2024 to enable Ms French to go away.
Ms Hart also received regular formal support from support workers. Those support workers were not employed by a registered NDIS provider, or an unregistered organisation. Instead, each support worker was engaged directly as an individual employed under a contract of employment. None of the support workers was themself a registered NDIS provider. Ms French’s evidence was that this had been the arrangement since January 2025. Prior to that, all or some of Ms Hart’s formal support worker assistance had been delivered by support organisations.
Ms French had a very strong view that she should no longer engage supports for Ms Hart through a support organisation and, instead, should directly engage individual support workers. She was unhappy with the support that Ms Hart had received in the past from support organisations, including short-term accommodation providers. She believed that directly employing support workers resulted in better quality support for Ms Hart.
Ms French said that she had previously tried 12 different service providers. She gave written details of those providers and the kind of support they had provided.[24] She became emotional describing the care her daughter had received at times from some of those providers and said that her daughter had been ‘physically and mentally abused’ while supported by registered NDIS providers, and that physical restraint had been used at times. She expressed anger that nothing had happened regarding this. She thought the incidents had either not been reported to the Commission or, if they had, the Commission had taken no action since she had heard nothing. During the hearing, she returned several times to one episode of support where she said her daughter spent the night in wet pyjamas and returned home with bruises.
[24] A6.
Ms French also said that, because of her daughter’s behaviours of concern (which are discussed further below), support organisations often ‘gave up’ on her daughter and withdrew services. They also failed to maintain regular workers, sending replacement workers who were unfamiliar with her daughter’s needs. She also found that workers in support organisations engaged less with training on behaviour support strategies that were supposed to be used with Ms Hart.
Ms French’s evidence was that the team of eight support workers who were providing support to Ms Hart at the time of the hearing were ‘gold star.’ She said those support workers were generally very experienced, and some had been working with Ms Hart for up to two years. She provided an email setting out the qualifications of some of the support workers which showed, for example, that two workers had a ‘Certificate III in individual disability support’, one had a Bachelor of Human Services, another had a Bachelor of Social Science (Psychology – Honours), and another was studying to be a paramedic.[25] Ms French said that all of the support workers had a ‘yellow card’[26] except one, who was in the process of doing so.
[25] Exhibit 2.
[26]The Tribunal takes this to be a reference to what is now an NDIS clearance for workers obtained in accordance with the process in the Disability Services Act 2006 (Qld).
Ms French described her process for interviewing and trialling new workers. She said that she required each new worker to undergo training on behaviour support strategies for Ms Hart, developed by Ms Curtis. Ms French also described the process in place for support workers to upload incident reports involving any behaviours of concern which she then passed to Ms Curtis.
Ms Wallace had been providing occupational therapy services to Ms Hart for some years. She described her role, in conjunction with Ms Curtis, in assisting Ms French to develop a consistent care team of independent support workers around Ms Hart. She described assisting in selecting those staff and providing training material and face-to-face training. She said that because of the complexity of Ms Hart’s care needs, it had taken 12 to 18 months but now there was a team of workers, each of whom was independent and who had undergone extensive training with Ms Wallace and Ms Curtis. In her view, this had resulted in Ms Hart having predictable and safe supports.
It was Ms French’s hope that a two-bedroom dwelling would be built on the same acreage where she and Ms Hart lived, and that Ms Hart would move from Ms French’s three-bedroom home to that dwelling and have 24/7 1:1 support. As set out earlier, the Agency had conceded during proceedings at the Tribunal that 24/7 1:1 support and SDA were reasonable and necessary supports for Ms Hart. However, any move by Ms Hart to alternate accommodation was not imminent at the time of the hearing. Ms French was not contemplating Ms Hart would move to an existing SDA, and there was no evidence that active steps were being taken to construct an SDA dwelling on Ms French’s property.
Instead, the hearing progressed on the basis that in the immediate future, Ms French intended to increase Ms Hart’s formal supports and decrease her own involvement, in preparation for Ms Hart moving to her own accommodation. Ms French envisaged that this would include gradually introducing formal overnight supports but doing that while either Ms French or Mr French was also present in the home. Ms French anticipated that this would occur over the course of a year. She planned that on one weekend/month she would be present with overnight formal supports, and for one weekend/month she would leave the home but her son, Mr French, would come to stay and be present in the home as a paid support, with a support worker also present.
Mr French does not have any formal training in disability support. His evidence was also that he did not hold a yellow card. He provided a written statement in which he said that he had previously been employed in the Royal Australian Air Force, that he had PTSD and anxiety as a result of experiences in that employment, and that this had impacted his capacity to work in traditional employment settings. He had established a company and intended to provide support for one weekend/month for Ms Hart, from Friday to Monday, to provide respite for his mother and train support workers who would be working alongside him.[27] He did not intend that he or his company would become a registered NDIS provider.
[27] A2.
Ms Hart’s behaviours of concern
Central to the issue of whether Ms Hart’s SIL funding must be Agency-managed, is an understanding is Ms Hart’s behaviours of concern and the response to those behaviours, including the use of physical restraint. I will therefore set the evidence on that out in some detail as it shows the duration, complexity, and severity of that behaviour, as well as the occasions on which physical restraint has been used by formal and informal supports.
Ms Hart has engaged in behaviours of concern, including verbal aggression, physical aggression, and property damage, over a very long period. This has occurred both at home and in the community, with her aggression directed at informal and formal supports and members of the public. At times it has necessitated police involvement or attendance in crisis at hospital.
Ms Curtis was engaged some years ago to assist in behaviour support. The most recent behaviour support plan (BSP) developed by Ms Curtis is dated 9 February 2025 (2025 BSP).
In November 2022, Ms Curtis reported that Ms Hart had a history of ‘extreme heightened anxiety and significant behaviour challenges’ in the home and community. She said those behaviours had resulted in physical harm to Ms Hart and her support team, severe property damage, and police involvement on many occasions. She said that during her time with Ms Hart she had observed behaviours including verbal threats by Ms Hart to kill her mother, kill herself, kill support workers (to slit their throats) and harm others. She had also observed physical aggression including slapping others, throwing objects at people, attacking people entering the home setting, hitting strangers in public, and recently hitting a policeman.[28]
[28] T8.
At the time of that report, in November 2022, Ms Hart was in hospital. A Police Protection Notice had been issued under the Domestic and Family Violence Act 2012 (Qld). Ms Hart had been removed from home and prevented from returning.[29] Subsequently, she was able to return home but a temporary protection order made on 14 December 2022, on application by police, required that Ms Hart be of good behaviour and not commit domestic violence against Ms French.[30].
[29] T8.
[30] T9 and A3. The proceedings regarding the order were adjourned during 2023 and 2024.
Ms Hart continued to direct aggression towards Ms French in the first half of 2023. For example, Ms Curtis provided a report dated 16 April 2023 recording that Ms Hart would ‘thump’ Ms French during the night to get her up, that Ms French then began locking her door to prevent being woken by Ms Hart, and that Ms Hart subsequently threw things at Ms French’s door.[31]
[31] T13 HB at 47, 48 and 132.
As a result, in July 2023 Ms French relocated from her three-bedroom home and commenced living on a shed on her property. A hospital record in July 2023 confirms an incident occurred that resulted in Ms Hart being taken to the emergency department following aggressive behaviour, in the context of ASD. It noted similar previous admissions. It records that Ms Hart remained in the emergency department for observation while her housing was addressed, and that this was ultimately resolved by Ms French agreeing to move out of their home, for her own safety.[32]
[32] T18.
Ms Wallace gave evidence that during this period, when Ms Hart was removed from the family home in 2022 and Ms French later relocated to the shed in 2023, Ms Hart was supported by support workers through NDIS registered providers, with multiple support workers coming in to support her. Ms Wallace said that meant there was somewhat inconsistent support for Ms Hart, contributing to Ms Hart’s dysregulation. Ms Wallace said this led to an ‘enormous spike’ in Ms Hart’s behaviours of concern and that Ms French was the target of those behaviours, making it unsafe for Ms French and Ms Hart.

That living arrangement, with Ms French residing in the shed and Ms Hart in the house, continued for some time. By the time of the hearing, Ms French had returned to sleeping in her bedroom in the house. She still used the shed during the day whenever a support worker was with Ms Hart.
Incidents between 1 January 2024 to 2 February 2025
By February 2025, Ms Curtis reported in the 2025 BSP that there had been improvements over the years. However, she said there were still multiple incidents each week of physical aggression and property damage. She said that Ms Hart’s behaviour had significantly improved in the past five years ‘albeit it is reported that she engages in medium to high-intensity behaviour challenges multiple times a week’ and that Ms Hart could escalate to high intensity behaviours with minimal warning sign behaviours. [33]
[33] A4 pages 26 and 27.
In the 2025 BSP, Ms Curtis recorded that 29 incident reports had been provided to her by Ms French for the 13-month period from 1 January 2024 to 2 February 2025. Of those incidents, 20 involved physical aggression, 15 involved property destruction and 18 involved verbal aggression and/or emotional meltdowns.
Ms Curtis calculated that, on average, there were 1.4 incidents per month of behaviours called ‘physical aggression (high intensity).’ These were described as:[34]
hitting Lisa and support workers with open hand and closed fist (hitting body, face, head, etc.), attempted hitting, kicking pinching and biting, throwing objects at SWs, grabbed SW’s hair, charging at SW and Lisa, took knife and tried to throw at SW.
[34] A4 page 13.
On average, there was one incident each month of behaviours called ‘property destruction (high intensity).’ These were described as:
throwing items onto the floor (majority of the time smashing items like glass bowls and plates, crockery, picture frames, wall clock, windows, furniture, appliances, knives, pot plants, etc.), threw iPad onto ground and smashed, throwing furniture at café setting.
Incidents were rated according to intensity, from 1 to 5. A rating of 1 was used in situations where ‘no physical injury to self or others, no physical contact made, no property damage’. A rating of 5 was used if the incident involved injury to self or others requiring ‘immediate emergency service intervention/assault’ and/or major property damage requiring extensive repair. While the average intensity was 2.5, the data indicates that two incidents attracted a rating of 5.[35]
[35] A4 page17.
Some of the incident reports were available to the Tribunal. In an incident on 17 January 2024, for example, a support worker reported that:[36]
1.Sophie picked up a glass on the dining table and threw it at me. It hit me at close range on the left side of my chest. Thankfully, it was a plastic cup, but it still hit with some force.
2.Sophie grabbed the clock off the wall when she saw me trying to move away. She threw the clock across the room. Luckily, I had been able to get outside and close the doors.
3.Sophie hit me repeatedly with her arm with great force on the deck.
[36] T36.
Similarly, on 20 January 2024 a support worker reported that:
1.Sophie hit my left cheekbone with hard slap of her hand
2.Sophie opened kitchen drawer, took out three ceramic cups and threw them to ground with force.
Incidents since 2 February 2025
Ms French’s evidence was that there had been a dramatic reduction in Ms Hart’s behaviours of concern since February 2025. Asked whether, if that was the case, she considered SDA was still necessary, she said that if Ms Hart ‘goes off,’ which she did, there was still property damage.
Ms Curtis and Ms Hart did not comment specifically on any reduction since February 2025. However, both gave evidence generally of a significant change over time. In her oral evidence, Ms Curtis said that she had been working with Ms Hart for about six years. She said that Ms Hart’s behaviours of concern were ‘lessening’ and had done so ‘quite significantly.’ She said there had been ‘huge changes’ from when she had first started working with Ms Hart.
Ms Wallace gave evidence that the change to support arrangements had led to a significant reduction in behaviours of concern. Ms Wallace thought that if Ms Hart’s current support arrangement changed there was a ‘huge risk’ of long-term physical and emotional harm to Ms Hart, as well as a risk to her caregivers, and that there would also be an increased need for crisis response and greater reliance on allied health services.
As to the future, when Ms Curtis was asked directly whether there was likely be an escalation in Ms Hart’s behaviours in the short-term, Ms Curtis said only that it was ‘definitely possible.’ She later expanded on this and said that change during transition can be a trigger for people with disability but that they would prepare Ms Hart for changes and there was a lot of opportunity in Ms Hart’s transition to keep things the same (including her supports workers and the availability of her pool and animals).
The use of physical restraint
There is evidence that physical restraint has been used by formal and informal supports.
For example, an incident report from 2022, involving a previous support agency stated:
Sophie then went into the lounge room and picked up a pot plant and through it across the room toward me, she then looked at the TV and before I could get to it launched it across the room, it was at this point Sophie was trying to access the kitchen where the stove was on and there where sharp utensils, I stood between Sophie and the kitchen, this is where Sophie started to frantically kick, punch and try to bite me. This went on for about 15 minutes before I was able to get to my phone and call (M). While waiting for (M) I maintained space between Sophie, myself, and anything I could see that might be launched, broken or harmful to Sophie or myself.
…
(M) then asked her to walk to the car, Sophie said no and when (M) moved close to her she hit him in the nose. (M) held her hands by her side and explained she must walk safely to the car. Once we got to the car Sophie tried to hit (M) again. (M) assisted Sophie into the back seat, (M) and myself assisted each other to put her belt on, (M) sat in the back with Sophie but she was still behaving violently towards (M), so he placed a child safety seat between them to ensure his safety. (sic)
Mr French gave evidence that he had not physically intervened regarding Ms Hart in the last four years but had been present when his mother had. He was also aware that support workers had physically intervened.
Ms French acknowledged in her evidence that she had used what she described as ‘reactive’ physical restraint with Ms Hart. She described, for example, stepping in when Ms Hart had ‘smashed the house up’ and the support worker had left the building and Ms Hart was standing barefoot in the kitchen amidst broken crockery (although now they used plastic items in the kitchen). She said:
As her mother I am not going to leave her standing there going absolutely troppo off her head throwing plates and having the risk of her cutting her feet so I have stepped in on those occasions to stop her from cutting her feet, holding her hand because she wants to smack you and hit you or she wants to try and throw more plates or just come after you. So obviously the best way to stop Sophie is to actually hold her hands and talk to her kindly which has been done and that way she is safe.’
Ms French also described making Ms Hart go to her room and holding Ms Hart’s hands when Ms Hart was trying to hit her. She said there were instances where Ms Hart had gone to hit her, and Ms French had therefore put her hand up to stop Ms Hart. She described holding Ms Hart and said, ‘and then I have let go of her hand and next thing she has thrown a TV remote.’
In the 2025 BSP, Ms Curtis listed ‘unauthorised use of physical restraint restrictive practices’ among the ‘common outcomes’ of Ms Hart’s physical aggression and property destruction.[37] She addressed the use of restrictive practices in some detail. She identified no use of chemical, environmental or mechanical restraint. However, Ms Curtis identified that five of the 29 reported incidents that occurred between 1 January 2024 to 2 February 2025 had involved use of an unauthorised restrictive practice in the form of physical restraint. Four of those involved physical restraint by Ms French and the remaining incident involved physical restraint by a support worker.
[37] A4 page 23.
The incident involving physical restraint by a support worker occurred on 2 February 2025. Very limited written information is available about that incident. Ms Curtis recorded in the 2025 BSP that this incident occurred in public, where Ms Hart was approaching dogs and people. The support worker was reported to have held Ms Hart’s hand for 30 seconds to direct her away for her own safety from the dogs.[38] In her oral evidence Ms Curtis said she did not regard that as an incident that needed to be reported to the Commission.
[38] A4 page 14.
Ms French gave evidence that during the event on 2 February 2025 Ms Hart was in a park with one of her support workers. That worker was someone familiar with Ms Hart and directly employed. Ms French was not present and could not recall the incident report. However, she thought that there was a man and a pregnant woman in the park, that Ms Hart slapped the pregnant woman, that the man abused Ms Hart, and that Ms Hart and the support worker were walking away but that Ms Hart was walking toward some dogs. The support worker therefore took Ms Hart’s hand, or guided her, away from the dogs.
Ms French’s evidence was that the incident in February 2025 was the last time she or a support worker had used physical restraint with Ms Hart. She said that Ms Curtis had talked to her about the use physical restraint early in 2025 and explained the need to implement better ways to respond. Ms French agreed with this. She also said that now she tended not to ‘overreact.’ She said that she did not want to implement physical restraint as a restrictive practice because, in her view, that risked Ms Hart going into ‘fight mode.’
Ms Curtis did not recommend, in the 2025 BSP, that physical restraint be used on Ms Hart and that approval for a restrictive practice be obtained. Instead, Ms Curtis identified early warning signs, settings and triggers for Ms Hart’s physical aggression and property damage, and the risks to Ms Hart, her supports and the community related to those behaviours. Ms Curtis then identified strategies for dealing with Ms Hart’s physical aggression and property destruction, and these were threefold:
·the use of proactive strategies to prevent behaviour escalation;
·skill-building strategies to increase Ms Hart’s skills; and
·response strategies to minimise escalation.[39]
[39] A4 Page 31.
The response strategies in the 2025 BSP are comprehensive. For high intensity behaviours involving physical aggression and property damage, if safety is a concern, the responses include contacting emergency services, and for support workers to remove themselves from Ms Hart’s immediate area, and to give Ms Hart space to self-regulate (or time for emergency services arrive).[40]
[40] A4 page 65.
Although Ms Curtis did not recommend using and obtaining approval for a restrictive practice, she made the following comment early in her report:
Lisa was consulted about the use of unauthorised physical restraint restrictive practices observed within review of Sophie’s recorded incident reports in the past 12 months and it was recommended a family implemented physical restraint protocol be included in this CBSP to reduce risk of harm for all involved. Lisa declined this recommendation, and it was discussed that all uses of unauthorised physical restraint must be recorded and submitted via incident reports and will be reported to the NDIS immediately.
In her oral evidence, Ms Curtis equivocated on the description in her report of five incidents as incidents involving an unauthorised restrictive practice. She also resiled from her description of physical restraint as a ‘common’ outcome of Ms Hart’s behaviours.
Mr Curtis also explained in her oral evidence that in preparing the 2025 BSP she decided against inclusion of use of restrictive practices. She said that she discussed it with her supervisor and concluded that, since only one incident had involved physical restraint by a support worker, and the rest involved restraint by Ms French, the incident involving the support worker’s use of physical restraint could be regarded as a ‘one-off’ incident.
Ms Curtis was asked about the need to use physical restraint in the next year. She said it was difficult to say. She said that while Ms French is one of Ms Hart’s ‘safe people,’ she can also be one of her triggers. A lot of Ms Hart’s behaviours are directed towards Ms French. She noted that Ms French would spend less time in the same physical space as Ms Hart, and at the same time Ms Hart would be increasing her capacity and autonomy. She could not say that restraint would not be required over the next year but that, if it was, it would be ‘very minimal.’
The evidence at the hearing was that neither Ms French nor Ms Curtis reported any use of physical restraint to the Commission. It was also clear from Ms French’s evidence that she did not regard that as necessary, or her role, or useful. She described the system she had in place for reporting incidents to Ms Curtis and said that she was ‘running this’ like a support agency. It was also evident that support workers had not been trained in safely implementing physical restraint, should physical restraint of Ms Hart be necessary.
The need for 24/7 1:1 support
Ms Hart’s current plan includes total funding for one year of $437,312.80. Of that, $366,604.63 is core flexible funding that is self-managed. This includes funding for consumables, assistance with daily life, and assistance with social, economic and community participation. The Agency provided a breakdown of that funding. It does not include sufficient funding for 24/7 1:1 support worker assistance. Ms French said that the funding had not been fully utilised.
In her report dated 13 November 2024, Ms Tracey recommended 24/7 1:1 support, including eight hours of active overnight support. She stated that nighttime support would ‘initially’ need to be active. This was required, in her view, because Ms Hart’s incontinence episodes of two to three per night required a full linen change and 1:1 attention to prevent escalation and to support Ms Hart to return to sleep. Ms Tracey thought strategies over time may result in a reduction in the frequency at which supports were required at night.[41]
[41] HB 850.
Ms Curtis recommended active overnight support in her report dated 16 April 2023.[42] She outlined the nighttime support Ms French provided to Ms Hart at that time. Ms Wallace also recommended active overnight support in a letter dated 3 May 2023 but did not provide reasons in that report regarding the need for active overnight support.[43]
[42] T13 HB at 47, 48 and 132.
[43] T15 HB 136.
Ms Yanniotis, from SDA Services Pty Ltd, also recorded in a report dated 7 August 2023 that Ms Hart’s nocturnal enuresis meant that she woke up at least three times each night and needed to change her nightwear and bedding, that she usually woke her mother to help her, and that this was often accompanied by some behaviours of concern where Ms Hart could easily escalate. [44]
[44] HB 194-5.
However, Ms Tracey’s evidence at the hearing was that the amount of active support provided to Ms Hart during the night would usually likely not exceed two hours. She thought there may be times where more than two hours of active assistance would be required, when Ms Hart’s behaviours required more than two hours of interventions, but that the frequency of this was difficult to estimate. She thought Ms Hart would require inactive support if an established routine was in place but in new situations there may be a transition period (such as moving to an SDA and in a situation where her mother was not present). If there was no change to the current situation, other than the replacement of informal supports with formal supports, Ms Tracey thought inactive support would be sufficient.
In an email dated 2 July 2025, Ms French providing the following information to explain why overnight support inactive support should be inactive:[45]
Sophie is highly sensory-sensitive during the evenings. She prefers total silence and is often disturbed by the slightest noises, which significantly affects her unusual and delicate sleep patterns. An active overnight support person in the home would be detrimental to her well-being and would increase her anxiety.
Sophie develops structured expectations of how her environment should operate.
Having a support person awake throughout the night would contradict the quiet, low-stimulation routine we have carefully developed over time. For example, when her dog sleeps inside and moves around at night, Sophie can be disrupted. We have found the most effective solution is for me to go to bed and then quietly get up only when Sophie requires assistance. I change her bedding without communicating and return to bed immediately. This process reduces stimulation and helps Sophie return to sleep on her own terms.
Due to her disability—Diabetes Insipidus—Sophie requires multiple bed changes throughout the night. However, this routine allows her to gain more rest and experience less anxiety. In the mornings, she enjoys quiet alone time, often watching TV or using her Wii Fit before requesting support. This has helped us build better sleep patterns and support Sophie’s independence.
Providing a fully awake support person would risk undoing the consistent progress we’ve made. It would introduce unfamiliar behaviours and disrupt Sophie’s sense of control and calm, likely increasing her anxiety and worsening her insomnia and behaviours.
CONSIDERATION
[45] A6.
SDA
In mid-2023, Ms French completed a change of circumstances form on behalf of Ms Hart seeking SDA. She also obtained a comprehensive report regarding SDA, from Ms Yanniotis, from SDA Services Pty Ltd, dated 7 August 2023.
In the decision under review, the Agency did not include funding for SDA. However, prior to the hearing, the Agency conceded that funding for SDA was a reasonable and necessary support for Ms Hart, with that funding to be Agency-managed. It confirmed this concession in its SFIC and its submission at the outset of the hearing. Ms French confirmed in her closing submissions that she agreed with the Agency’s draft proposed order regarding SDA.
The Agency provided submissions in its SFIC on whether SDA was a reasonable and necessary support for Ms Hart. Detailed written submissions on this issue were also made on Ms Hart’s behalf on 20 May 2024.[46] I have had regard to those submissions and the material before me, including the report by Ms Yanniotis and the report dated 13 November 2024 by Ms Tracey.
[46] A1.
I am satisfied that the Agency’s concessions regarding SDA are appropriately made. Ms Hart meets the eligibility criteria for SDA in the SDA Rules. She has extreme functional impairment and very high support needs and meets the needs requirements in rule 14 of the SDA Rules. The requirements in the SDA Rules regarding building type, design category and location are also met. SDA is also a reasonable and necessary support pursuant to subsection 34(1) of the NDIS Act.
Second skins and custom footwear
The Agency explained at the outset of the hearing that two supports (second skins and custom footwear) had previously been agreed between the parties but mistakenly omitted from the SOPS in the current plan. It conceded that these two supports were reasonable and necessary supports. Ms French confirmed at the hearing that these two supports were not in dispute and asked that they be included in the SOPS in Ms Hart’s plan in the manner described in the draft order.

Having regard to the material before me, I am satisfied that the Agency’s concessions regarding these two supports are appropriately made. These are reasonable and necessary supports pursuant to subsection 34(1) of the NDIS Act.
Remaining supports in current plan
The Agency contended that the remaining supports in Ms Hart’s current plan (other than SIL support discussed below) continued to be reasonable and necessary supports. It set those supports out in full in its draft minute of order. Ms Hart confirmed at the conclusion of the hearing that the draft minute accurately reflected those remaining supports and the basis on which they were to be managed. For clarity, those supports are set out in full in the Tribunal’s decision.
SIL support
The Agency conceded prior to the hearing that 24/7 1:1 support worker assistance with active overnight support was a reasonable and necessary support for Ms Hart, and that some of that support could be provided by Mr French. The Agency confirmed that concession in its SFIC, and at the outset of the hearing. However, the Agency contended that this support should be Agency-managed. If the Tribunal did not accept that submission, the Agency contended that at least the support provided by Mr French should be Agency-managed.
Ms French agreed that the SOPS in Ms Hart’s plan should include supports that are 24/7 1:1 support, as described by the Agency in its draft order, except that the funding should be self-managed, it should not be referred to as SIL funding, and the overnight support should be funded at the rate of inactive support.
Is 24/7 1:1 support with active overnight support reasonable and necessary?
Ms French asked that funding be provided for 24/7 1:1 funding but she anticipated using this flexibly. She planned to use it for support workers but also to pay her son to provide ‘respite’ for Ms Hart once every month throughout the year until Ms Hart became used to having formal support overnight. Under that plan, sometimes Ms Hart would in effect have 2:1 support. She opposed the inclusion of funding for active overnight support for the reasons set out earlier in her email dated 2 July 2025.
The Agency agreed that funding should by 24/7 1:1 funding and could be used flexibly. Regarding overnight support, the Agency contended that Ms Hart required support in relation to toileting, including prompting to utilise the toilet at 10 or 11pm, together with assistance with incontinence on one or more occasions during the night, which necessitated changing bedding. It also contended that the evidence was that incontinence had been identified by Ms Hart’s own supports as a trigger for behaviours of concern at night, including property damage. The Agency contended that these factors were not consistent with inactive overnight support.
Ms Hart’s move to SDA accommodation is not imminent. The Agency was clear that its concession regarding 24/7 1:1 support was not tied in any way to Ms Hart transitioning to her own accommodation and I have similarly had regard to the support required irrespective of that move.
Ms Tracey provided an independent and recent assessment of Ms Hart’s support needs. She recommended 24/7 1:1 support for Ms Hart and I am satisfied based on that evidence that this is necessary to address Ms Hart’s needs.
In relation to overnight support, the reports in 2023 by Ms Curtis and Ms Yanniotis assist in understanding the support that has been required to manage Ms Hart’s incontinence and some of the behaviours of concern that have occurred during overnight support. However, in determining whether active overnight support is required I place greater weight on Ms Tracey’s recent assessment and oral evidence than the reports in 2023 by Ms Curtis, Ms Wallace, and Ms Yanniotis, given the circumstances that were occurring in 2023.
Based on Ms Tracey’s report and oral evidence, and the evidence of Mr French and Mrs French, I find that overnight support to Ms Hart entails aiding with toileting late in the evening, together with assistance at least once during the night with incontinence (including changing bedding). Sometimes, more assistance is required because of Ms Hart’s behaviours of concern. These can occur during overnight support, as is evident from Ms Curtis’ report in April 2023, her oral evidence, and the 2025 BSP.
However, having regard particularly to Ms Tracey’s oral evidence at the hearing, I am not satisfied that the level of assistance is such that active overnight support is necessary to address Ms Hart’s needs. Consequently, I am also not satisfied that this represents value for money. This means that the requirements in paragraphs 34(1)(aa) and (c) of the NDIS Act are not met for funding of 24/7 1:1 support with active overnight support but are met for funding for 24/7 1:1 support with inactive overnight support.
It was not contentious that each of the remaining requirements in subsection 34(1) of the NDIS Act is met. Having regard to the material before me I am satisfied that each of those further requirements is met. This means that funding of 24/7 1:1 support, with inactive overnight support, is a reasonable and necessary support pursuant to subsection 34(1) of the NDIS Act.
Should the funding be described as SIL funding?
Ms French urged that the funding for 24/7 1:1 be described in the SOPS in Ms Hart’s plan as funding for daily living supports, social and community participation, sleepover supports, and respite. She was concerned that the NDIS legislative scheme required that SIL supports only be provided by registered NDIS providers. The Agency submitted, and I accept, that this is not currently the case and that any proposal to change that in the future is not a relevant consideration for the Tribunal.
The Agency explained that the current plan referred to Ms Hart’s funding as funding for activities of daily life, which was generally intended for task-specific support, whereas SIL support was generally holistic, comprehensive care. Since Ms Hart’s funding would be 24/7 support, the Agency submitted that it was appropriately classified as SIL support.
The Agency’s guidelines on ‘Supported Independent Living’ describe SIL support as follows:
Supported independent living is paid personal support. It includes things like having someone to help with personal care or cooking meals. It’s one type of help or supervision with daily tasks to help you live as independently as possible and build your skills. Supported independent living is best suited to people with a disability who have higher support needs. This means you need a significant amount of help throughout the day, 7 days a week. This includes overnight support
Given the extent, nature and purpose of the support that is to be given to Ms Hart, that is, 24/7 1:1 support, I am satisfied that it is SIL support (to the extent that it is necessary for the Tribunal to determine that issue).
How should the SIL funding be managed?
The effect of subsection 43(3) and paragraph 44(1)(b) of the NDIS Act is that despite a participant’s request to self-manage funding, that funding must be Agency-managed if self-management would present an unreasonable risk to the participant. Similarly, if Ms French is Ms Hart’s plan nominee appointed to manage certain funding, the effect of subsections 43(6) and 44(2A) of the NDIS Act is that despite a request to self-manage Ms Hart’s SIL funding, that funding must be Agency-managed if Ms French’s management of funding for those supports would present an unreasonable risk to Ms Hart.
The Agency’s submissions
The Agency submitted that self-management of the funding for SIL supports does present an unreasonable risk to Ms Hart. It pointed to the recent use of regulated restrictive practices in management of Ms Hart’s behavioural challenges. It noted that the 2025 BSP indicated there were 29 reported incidents of concerning behaviour, that 20 of those involved violence, and that five of those required use of restrictive practices, none of which were notified to the Commission.
The Agency submitted that there were risks associated with the use of regulated restrictive practices and referred to the impacts of physical restraint set out in the Commission’s Restrictive Practices Guide (including the high risk of injury and impact on relationships). The Agency also referred to the ‘Important considerations when using physical restraint,’ set out in that Guide. These include the requirement that support staff must be appropriately trained in how to safely implement physical restraint, and under what conditions it can be used.
The Agency emphasised that Ms Hart’s supports are not registered NDIS supports and therefore not subject to the regulatory oversight contained in the NDIS legislative scheme, intended to protect participants particularly when they may be subject to restrictive practices.
The Agency pointed to the recent use of physical restraint by a support worker in circumstance where Ms Hart struck a pregnant member of the community. It emphasised that this had not been reported to the Commission because Ms Curtis took the view that it was used to protect Ms Hart rather than regulate her behaviour. The Agency suggested that this should cause the Tribunal significant concern in the assessment of risk that might be posed by ongoing self-management of funds involved with the engagement of support workers who may be required to engage with restrictive practices.
The Agency contended that, although the 2025 BSP does not specifically proscribe the use of restrictive practices, it was evident from Ms Curtis’ own report that the use of regulated restricted practices was a common outcome of Ms Hart’s behavioural difficulties. It contended that this was the case even though Ms Curtis may have struggled with her own use of the words ‘common outcomes.’ The Agency submitted that the regulatory oversight created for the safety of participants, particularly regarding the potential use of restrictive practices, should be put in place.
Further, the Agency contended that it was a breach of the relevant rules to use unregistered providers for regulated restrictive practices. Unregistered providers using restrictive practices, including physical restraint, must either support the participant to transition to a registered provider or become registered.
Regarding any impact Agency-management would have on the continuation and stability of Ms Hart’s support worker team, the Agency submitted that that current support workers did not need to change but needed to be engaged via a registered provider. It contended that they were able to do so but had elected not to do so.
Regarding funding for support provided by Mr French, the Agency submitted that there were additional considerations. The Agency funded family members to provide support in only limited circumstances but acknowledged that Ms Hart’s circumstances was presently one of those situations. However, given the potential impact on her relationship with her brother, due to the potential use of restrictive practices and the introduction of a level of financial interdependence, any funding regarding support he provided should be Agency-managed.
In addition, the Agency submitted that in his evidence Mr French did not adequately explain why he has not yet applied for a yellow card, despite that having been raised throughout the course of this matter. Further, his reason for not being engaged by a registered provider was initially because he did not have a yellow card and, separately, because he has some difficulty in trusting employers.[47] His evidence was that he did not intend to become registered or employed by a registered provider. In the Agency’s submission, to ensure the oversight that applies to registered providers, formal supports offered by family members ought particularly to be Agency-managed.
Ms French’s submissions
[47] A2.
Ms French emphasised that without self-management of Ms Hart’s SIL funding this funding, Ms Hart’s current support arrangements would be disrupted, since none of Ms Hart’s current support workers were registered NDIS providers or willing to support Ms Hart through a registered provider. She emphasised the importance of consistency for Ms Hart and the quality of her current support compared to previous support from registered NDIS providers. She also emphasised her own practice of requiring support workers to be trained in applying Ms Hart’s BSPs, and the system in place for reporting to Ms Curtis on incidents that involved behaviours of concern.
The risk that Ms French’s management of SIL funding presents to Ms Hart
In determining whether self-management would present an unreasonable risk to Ms Hart I must consider the matters in Rule 6(4) of the Management of Funding Rules. For the purposes of Rule 6(4)(d), I have first considered whether, and the extent to which, if Ms Hart’s funds are managed by Ms French, Ms Hart is at risk of physical, mental, or financial harm, or exploitation or undue influence.
Ms Hart’s formal and informal supports have used physical restraint at times when supporting Ms Hart. That is clear from the example of the incident in 2022, set out earlier, where Ms Hart was physically aggressive to two staff members of a support organisation, and one held Ms Hart’s arms before she got into their vehicle. In Ms French’s own evidence, she also acknowledged using physical restraint (including restricting Ms Hart’s arms) and Mr French gave evidence that he had witnessed physical restraint occur.
These actions have involved more than using a hands-on technique to guide or redirect Ms Hart from potential harm or injury, consistent with the exercise of care. On the evidence, some incidents have involved holding Ms Hart’s hand/s or arm/s to prevent her hitting someone or causing property damage. There have likely also been instances of coercively holding Ms Hart’s hand or arm to direct her somewhere. This seems likely based on the intensity, nature, and duration of Ms Hart’s behaviours of concern, and based on the description of, for example, of the incident in 2022 where staff had to get Ms Hart into a vehicle.
The evidence that physical restraint has been used by providers in the absence of approved restrictive practices is concerning, as is the associated absence of any reports to the Commission and the fact that at least on one occasion early in 2025 physical restraint may have been used by an unregistered support worker.
If Ms Hart’s funding for SIL supports continues to be managed by Ms French, Ms Hart’s support providers will be individuals employed directly who are not registered NDIS providers. Those support workers will not be trained in implementing physical restraint, no application will be made under relevant Queensland laws for approval to use physical restraint as a restrictive practice, and any use of regulated restrictive practices will not be reported to the NDIS Commission. I make those findings based, first, on Ms Hart’s strongly held views, and reasoning, set out earlier. Secondly, I make those findings based on the limited options for obtaining support through a registered organisation now open to Ms Hart, given the location where she lives and the fact that many organisations have previously withdrawn support to Ms Hart or Ms French has terminated their support.
Restricting a participant’s arms or coercively directing the participant somewhere, during the provision of SIL support, would constitute use of a ‘regulated restrictive practice’ within Rule 4 of the Provider Registration Rules. If there was, or was likely to be, an interim or ongoing need to do so during SIL support, it would be necessary for support workers providing that SIL support to be registered. That is the effect of Rule 7(2) of the Provider Registration Rules.
The Commission’s Restrictive Practices Guide indicates the risks of physical and mental harm associated with use of restrictive practices. In Ms Hart’s case there was evidence of the risk of using physical restraint, including evidence that support workers were not trained in using physical restraint and Ms French’s evidence of Ms Hart’s distress at being physically restrained.
In determining whether there is an ‘unreasonable’ risk to a participant when self-management would result in unregistered providers potentially using a regulated restrictive practice, regard must be had to matters including the extent of risk and whether the risk will be mitigated. The statutory context in which that determination is made is important. The NDIS legislative scheme contains extensive provisions on restrictive practices, registration, and the role of the Commission, as set out in detail earlier in these reasons. These demonstrate the seriousness of unregistered support workers providing support where there is, or is likely to be, an ongoing need for use of a regulated restrictive practice during provision of that support. It is relevant too that there are no exceptions to the requirement in Rule 7(2) of the Provider Registration Rules. A provider cannot avoid that provision by demonstrating, for example, that alternate private arrangements provide some protection, or that the restrictive practices that will be used are for the participant’s safety, or that they are in some way not serious.
Regarding the evidence on the extent to which physical restraint will be used by unregistered support workers in supporting Ms Hart, I note the following matters.
First, Ms Hart’s behaviours of physical aggression and property damage have been reducing. Ms French’s evidence was that there had been a ‘dramatic’ reduction since early in 2025 in Ms Hart’s physical aggression and property destruction. In weighing that evidence, I have had regard to the clear tension between Ms French’s wish to self-manage Ms Hart’s funding and to engage unregistered support workers, on the one hand, and, on the other hand, acknowledging physical aggression and property damage and use of physical restraint, which might necessitate use of registered providers. I do not accept her evidence that there has been a ‘dramatic’ reduction in Ms Hart’s use of physical aggression and property damage since early 2025. There is no independent data and there has been a very long history of aggressive behaviour and property destruction.
However, I accept that Ms Hart’s physical aggression and property destruction continued to reduce between February 2025 and the hearing in July 2025. That has been the general trend reported by Ms Curtis over some years. Ms Wallace also gave evidence that there had been a reduction as changes were made to Ms Hart’s support team. There has also been nothing to indicate recent police involvement or hospitalisation.
Secondly, although there will be change for Ms Hart as support workers increasingly support her and commence staying overnight, that change is to be introduced very gradually, with many things remaining unchanged. The change also aligns with Ms Hart’s wish for more independence.
Thirdly, the response strategies in the 2025 BSP emphasise strategies such as support workers giving Ms Hart space and/or calling emergency services.
Fourthly, there is only one known incident of physical restraint by a support worker since 1 January 2024. I accept Ms French’s evidence on that issue. Regarding that incident, there is very little reliable evidence about the physical restraint that was used. Ms Curtis reported that it involved a support worker holding Ms Hart’s hand for 30 seconds to direct her away from harm.
Fifthly, the data indicates that physical restraint has predominantly been used by Ms French and, although support workers will increasingly provide support in place of Ms French, there seems little basis on which to extrapolate from that data that support workers will use physical restraint at a similar frequency to Ms French.
Ms Curtis explained that Ms French had been both a target and trigger for Ms Hart’s behaviours. Previously, support workers would generally leave the room if there was an issue and Ms French stepped in. Of the five incidents of physical restraint in the 2025 BSP, four involved Ms French. She has been the victim of Ms Hart’s physical aggression over some years. From her evidence it was also apparent that she felt that, as Ms Hart’s mother, different considerations applied to her in addressing Ms Hart’s behaviour. She also recognised some past overreaction on her part and a need to respond differently.

Finally, Ms Curtis’ evidence was that if there was use of physical restraint in the next year it would be very minimal.
I am cognisant of Ms Hart’s long history of serious incidents of physical aggression and property damage, that this behaviour has reduced but not ceased, and that physical restraint has been used in response. If there is use of physical restraint by unregistered support workers, it carries a risk of physical and emotional harm to Ms Hart. However, I consider it highly unlikely that unregistered support workers will use physical restraint, constituting a restrictive practice, during the provision of 24/7 1:1 SIL support to Ms Hart in the next year. The extent of the risk is therefore very minimal.
I have also considered more broadly whether Ms French’s management of the funding, and therefore the use of unregistered providers, places Ms Hart at risk of physical, mental, or financial harm or exploitation or undue influence. The supports in issue are supports that will generally be provided in Ms Hart’s home, in a relatively isolated setting, on a 1:1 basis, during potentially long shifts. Ms Hart has complex support needs. That is in part due to her behaviours of concern which, as set out earlier, have involved many incidents of physical aggression.
These factors make Ms Hart vulnerable. The evidence was that she requires skilled and consistent supports, and it is not difficult to envisage ways that the risk of physical and emotional harm to Ms Hart could increase with unskilled supports delivering SIL support to her.
Using registered NDIS support workers confers the benefit of those provisions in the NDIS legislation that promote safe and better-quality support, through regulating registered providers. However, there is minimal evidence in the material before me that, in Ms Hart’s situation, the use of unregistered providers for 24/7 SIL support, places Ms Hart at risk of physical or mental harm.
In fact, Ms Wallace’s evidence, which I accept, is that Ms Hart’s team at the time of the hearing was providing predictable and safe supports. The team had been built slowly by Ms French, in collaboration with Ms Wallace and Ms Curtis. Workers had been selected thoughtfully taking into account their qualifications and compatibility with the role. They had relevant clearances to undertake NDIS work. They had also been trained in supporting Ms Hart, and in how to deal with her challenging behaviours. Rather than the evidence suggesting that Ms French’s management of the funding, and the resultant use of unregistered support workers, was placing Ms Hart at risk of harm, the evidence was that Ms Hart was less dysregulated and no longer coming to the attention of police and utilising crisis services, including hospital emergency departments. In Ms Wallace’s opinion, changing Ms Hart’s current support arrangements carried a ‘huge risk of long-term physical and emotional harm to Ms Hart,’ with an increased need again for crisis response.
I am therefore not satisfied that self-management of Ms Hart’s SIL funding for support workers would present an unreasonable risk to Ms Hart. This means that paragraph 44(2A)(b)[48] of the NDIS Act does not apply to Ms Hart in respect of that funding. As no other provision in subsection 44(2A) is met, there is no requirement that this funding be Agency-managed.
[48] Paragraph 44(1)(b) for management by Ms Hart
Regarding the support to be provided by Mr French, that support is SIL support and is intended to play an important but short-term role in Ms Hart’s transition to full support from formal supports.
Mr French is a close family member who will be important in providing informal support to Ms Hart throughout her life. It is important for Ms Hart’s emotional well-being that this relationship is preserved. Mr French and Ms Hart will be financially interdependent for 12 months and that interdependence will be substantial. Mr French will also be providing substantial support in circumstances where Ms Hart will be verbally and physically aggressive. There is a risk that these factors will impact Ms Hart’s relationship with her brother leading to emotional harm to Ms Hart.
There is also a risk of emotional and physical harm to Ms Hart if her supports are not skilled and consistent. Although Mr French understands Ms Hart well, he has no formal training in support work, he has not taken steps to obtain NDIS clearance, and he has disclosed health conditions that he says impact his capacity to work for others. He does not intend to become a registered provider or work for a registered provider.
For the purposes of Rule 6(4)(e) of the Management of Funding Rules, it is relevant that Ms French would be in a position of conflict in managing the funding relating to Mr French.
Paragraphs 6(4)(a) requires consideration of whether the risks posed by self-management will be mitigated. The risk can be mitigated by limiting the duration of the plan to 12 months. However, I do not consider that this alone is adequate. Self-management does not ensure that, for example, Mr French will obtain NDIS worker clearance.
I therefore find that self-management of the funding for support to be provided by Mr French would present an unreasonable risk to Ms Hart. This means that, to that extent, paragraph 44(2A)(b)[49] of the NDIS Act applies. Consequently, pursuant to subsection 43(6) of the NDIS Act,[50] the SOPS in Ms Hart’s plan must provide for that funding to be Agency-managed.
[49] Paragraph 44(1)(b) for management by Ms Hart
[50] Subsection 44(3) for management by Ms Hart
DECISION
The Tribunal sets aside the decision under review pursuant to s105(c)(i) of the Administrative Review Tribunal Act 2024 (Cth). The matter is remitted to the Respondent for reconsideration with a direction that within 14 days of the date of this Decision the Respondent must facilitate the approval of a new Statement of Participant Supports (SOPS) for the Applicant, containing the following provisions:
1. A provision that the following reasonable and necessary supports that will be funded under the National Disability Insurance Scheme Pricing Arrangements and Price Limits as updated from time to time (unless otherwise stated):
(a)     Supported Independent Living (SIL) for 1:1 support for 24 hours per day, 7 days per week including:
(i) Inactive overnight supports;
(ii) 21 hours per week of 1:1 support for assistance to access the community, social and recreational activities; and
(iii) 1,534 hours per year of 1:1 support to be provided by Alister French on the basis of 38 hours per week for six months, 24 hours per week for the following three months and 18 hours per week for the final three months but which can be utilised flexibly to provide support as required.
(b)     Specialised Disability Accommodation as follows:
(i) House
(ii) Robust Build
(iii) 2 bedrooms
(iv) Breakout room
(v) Sole occupancy/single resident
(vi) Sunshine Coast Queensland
(c)     10 hours per year for dietitian support.
(d)     12 hours per year for exercise physiology.
(e)     50 hours per year for occupational therapy.
(f)      4 hours per year for clinical nurse continence assessment.
(g)     26 hours per year for physiotherapy.
(h)     3 hours per year for podiatry.
(i)      Level 2 transport support.
(j)      40 hours per year individual skills development.
(k)     90 hours per year specialist behavioural intervention support.
(l)      30 hours per year behaviour management plan including training in behaviour management strategies.
(m)    45 hours per year of level 3 support coordination.
(n)     55 hours per year of level 2 support coordination.
(o)     Second skins in accordance with the quote of Second Skin Pty Ltd dated 12 February 2025 excluding the quote for consultations, provider travel (labour and non-labour costs) which are accounted for in the increased occupational therapy supports.
(p)     Custom footwear, custom orthotics and modifications for Footwear 1 and Footwear 2 in accordance with the quote of Complete Custom Footwear dated 27 February 2025.
(q)     Consumables and Assistive Technology in the current SOPS replicated for 12 months.
2. The supports at (a)(iii), (j), (k), (l), (m) and (n) above, are to be Agency-managed.
3. The remaining supports are to be self-managed.
4. That the date by which the Respondent must review the plan is 12 months after the SOPS is approved.

1. I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for the decision herein of General Member A Colvin.

......[SGD] ......
Christina K
Associate
17 September 2025

Dates of hearing: 14 and 15 July 2025

Representative for Applicant: Ms French

Solicitor for the Respondent: Ms S Dole, Sparke Helmore

Counsel for the Respondent: Ms M Murphy