Hyde and National Disability Insurance Agency (NDIS) - [2025] ARTA 365

Hyde and National Disability Insurance Agency (NDIS) [2025] ARTA 365 (31 March 2025)
Applicant/s:  Ms Casey Hyde
Respondent:  National Disability Insurance Agency
Tribunal Number:                2023/7283

Tribunal:General Member D Heron
Place:Brisbane
Date:31 March 2025

Decision:The Tribunal sets aside the decision under review. The Tribunal remits this matter to the Respondent for reconsideration with a direction stating that the following supports are to be approved in the Applicant’s NDIS plan:
a. Control 4 system supply and installation, cabling; and
b. Supply and installation of front access gate and fence panel to accommodate Control 4 system and electronic strike.

............................[SGD] ............................
General Member D Heron

Catchwords
NATIONAL DISABILITY INSURANCE SCHEME –- reasonable and necessary supports – consideration of s 34 National Disability Insurance Scheme Act 2013 (Cth) – standard security system – home automation– schedule 2.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth)
Cases
Duse and National Disability Insurance Agency (NDIS) [2025] ARTA 37
DRVV and National Disability Insurance Agency (NDIS) [2025] ARTA 158
FSWN AND NATIONAL DISABILITY INSURANCE AGENCY (NDIS) [2025] ARTA 114
Johnstone and National Disability Insurance Agency (NDIS) [2025] ARTA 106
Secondary Materials
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 Explanatory Memorandum
Second Reading Speech of the NDIS Back on Track Bill 2024
Statement of Reasons
BACKGROUND

Ms Hyde (the Applicant) is a participant in the National Disability Insurance Scheme (the NDIS). She met access to the NDIS on the basis of her permanent vision impairment, Cone-Rod Dystrophy, a genetic condition that results in progressive loss of sight through to complete vision loss.
Ms Hyde is seeking a review of the National Disability Insurance Agency’s (the Respondent) decision not to approve funding for a Control 4 home automation system.
On 24 July 2023 Ms Hyde had her statement of participant supports approved by the Respondent, for the period 24 July 2023 to 23 July 2025 (the current plan).[1]
[1] Joint Hearing Tender Bundle (JTB), T13 dated 1 March 2023 page 80.
On 29 August 2023 Ms Hyde requested an internal review of this plan, as it did not include the approval of the Control 4 system and other requested supports.[2]
[2] JTB, T2 dated 5 July 2023 page 19.
On 28 September 2023 a delegate of the CEO reviewed the 24 July 2023 decision and made their decision to affirm the original decision not to approve the Control 4 system and other requested supports.[3]
[3] JTB,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hyde and National Disability Insurance Agency (NDIS)

Details

AGLC: Hyde and National Disability Insurance Agency (NDIS) [2025] ARTA 365
Case: [2025] ARTA 365
Decision Date: 31 March 2025

CaseChat Overview and Summary

The decision in Hyde and National Disability Insurance Agency (NDIS) involves the Applicant, Ms Hyde, who sought funding for a Control 4 system, gate, and electronic strike under the National Disability Insurance Scheme (NDIS). The National Disability Insurance Agency (NDIS) had previously declined to fund these items. Ms Hyde appealed this decision to the Tribunal, which reviewed the matter to determine whether the requested supports met the criteria for funding under the NDIS Act.

The primary legal issue before the Tribunal was whether the Control 4 system, gate, and electronic strike qualified as reasonable and necessary supports under section 34 of the National Disability Insurance Scheme Act 2013 (Cth). This required the Tribunal to consider the specific criteria outlined in sections 34(1)(aa)-(f) of the Act, including whether the requested supports fell within the scope of NDIS supports as defined and whether they were reasonably necessary for Ms Hyde’s disability-related needs.

The Tribunal found that all criteria under section 34(1) were met. It was satisfied that the Control 4 system had been trialled by Ms Hyde and she was able to operate the system. Furthermore, the Tribunal acknowledged that lower-cost alternatives had not been successful, and the front gate needed to be locked due to Ms Hyde’s individual circumstances. The Control 4 system was fully integrated for the whole home and could control other appliances in addition to security locks. The Tribunal also considered the purpose of the NDIS and the importance of supporting participants in their community participation. In light of this, the Tribunal concluded that the Control 4 system, gate, and electronic strike should be funded as part of Ms Hyde’s NDIS plan.

The Tribunal set aside the decision under review and remitted the matter to the NDIS for reconsideration. It directed that the requested supports, including the Control 4 system supply and installation, cabling, and the supply and installation of the front access gate and fence panel to accommodate the Control 4 system and electronic strike, be approved in Ms Hyde’s NDIS plan.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal has been satisfied of all of the seven requirements in ss 34(1)(aa)-(f). Accordingly, I find the Control 4 system, gate and electronic strike is to be funded for Ms Hyde by the NDIS as all criteria have been met.DECISION The Tribunal sets aside the decision under review. The Tribunal remits this matter to the Respondent for reconsideration with a direction stating that the following supports are to be approved in the Applicant’s NDIS plan:a.Control 4 system supply and installation, cablingb.Supply and installation of front access gate and fence panel to accommodate Control 4 system and electronic strikeDate of hearing: 18 March 2025Solicitor for the Applicant: Self-representedCounsel for the Respondent: Mr J Sproule of CounselSolicitors for the Respondent: Mr O’Brien, Moray & Agnew

Ratio Decidendi

Legal Principle Established

I acknowledge the views expressed by the professionals who prepared the relevant reports before me. The Tribunal is satisfied that although there are some differences, the cumulative evidence cited indicates the following:·Control 4 system has been trialled by Ms Hyde and she was able to operate the system.·Lower cost alternatives trialled were not successful.·The front gate does need to be locked due to Ms Hyde’s individual circumstances.·The Control 4 system is fully integrated for the whole home and can control other appliances not only security locks.CONSIDERATIONThe Transitional Rules In applying the rules to the facts in this matter, I have considered the purpose of these new amendments. When the Back on Track legislation was read a second time in Parliament, the Minister for the NDIS (as he then was) the Hon. Bill Shorten MP stated:The NDIS represents what’s best about this country. It fulfills a sense of collective responsibility – the essence of a fair go – and is integral to our national identity. Its value is measured in human terms, not economic. People with disability should have the support they need to participate in the community. All Australians have the peace of mind of knowing that if they or someone they love acquires a significant or permanent disability the NDIS will be there for them. And we will all benefit from building a more inclusive world.[8][8] NDIS Amendment (Getting the NDIS Back on Track No.1) Bill 2024 Second Reading speech 27 March 2024 Member Toohey has rightly explained in Johnstone and National Disability Insurance Agency [2025] ARTA 106 that the Transitional Rules do not specifically mention automation or voice activation systems. Item 8(c) in the category titled ‘Assistive products for household tasks’ on the in list says that the cost to upgrade standard household items to include accessibility features are NDIS supports unless otherwise provided. While Item 1(e) in the category ‘Day-to-day living costs accommodation and household’ on the out list states that home improvements are generally not NDIS supports.[9][9]Johnstone and National Disability Insurance Agency [2025] ARTA 106 at 139. Senior Member French in FSWN and National Disability Insurance Agency (NDIS) [2025] ARTA 114 states whether a support is an NDIS support, is mixed question of fact and law. Senior Member provides guidance for how to approach the in and out list, stating the use of the following steps:Stage 1 Ascertain if the requested support is an NDIS Support as defined. This inquiry is focused on the support, not the participant.Step 1: Determine if the requested support is of a character that falls within the scope of a category of support specified in column 1 of the Table to Schedule 2 of the Transitional Rules by reference to the description of supports that fall within the scope of that category contained in column 2 of the Table.If the answer to that question is “yes”, then stage 1 is complete. The requested support is not a NDIS Support and cannot be approved for inclusion in a SoPS because of s 34(1)(f)…If the answer to that question is “no”, then proceed to step 2 of stage 1:Step 2: Determine if the requested support is of a character capable of falling within the scope of a category of support specified in column 1 of the Table to Schedule 1 of the Transitional Rules by reference to the description of supports that can fall within the scope of that category contained in column 2 of that Table.If the answer to that question is “no”, then the requested support will not be a NDIS Support and cannot be approved for including in a SoPS because of s 34(1)(f).If the answer to that question is “yes”, then the requested support will be a NDIS Support…