Hyde and National Disability Insurance Agency (NDIS)
[2025] ARTA 365
•31 March 2025
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 158FSWN 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 2024Statement 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, T1 dated 6 July 2023 page 6.
On 4 October 2023 Ms Hyde filed an application for review in the Administrative Appeals Tribunal (the AAT).
At the hearing held on 18 March 2025 via Microsoft Teams, Ms Hyde was self-represented, and the Respondent was represented by Mr J Sproule of Counsel instructed by Mr O’Brien of Moray & Agnew. Ms Hyde gave oral evidence during the hearing. Ms Hyde also called Mr Peter McVicar to give oral evidence. No further witnesses were called by either party.
The Joint Tender Bundle was admitted into evidence and marked as Exhibit 1. The Supplementary Tender Bundle submitted by the Respondent listed website addresses of catalogues describing each individual piece of the requested support. This was admitted into evidence and marked as Exhibit 2. A list of case law authorities supplied by the Respondent was admitted into evidence and marked as Exhibit 3.
RECENT TRIBUNAL AND NDIS ACT AMENDMENTS
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions any applications for review that were not finalised before 14 October 2024 at the AAT are taken to be an application for review to the new Tribunal. The Transitional Act gives the new Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by this Tribunal.
Also of note is that the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (the Back on Track Act) commenced on 3 October 2024 and made significant amendments to the NDIS Act. The amendments to the NDIS Act apply to this review.
ROLE OF THE TRIBUNAL
The role of the Tribunal is to make the correct or preferable decision based on the material before it. In reviewing the decision, the Tribunal stands in the shoes of the original decision maker and must make the correct or preferable decision based upon the evidence and other materials before it. The relevant provisions under the ART Act are sections 54 and 105.
ISSUE
The issues and supports to be funded have narrowed over time. The issue before me is the Control 4 system and whether it can be funded in Ms Hyde’s statement of participant supports.[4]
[4] >
From 3 October 2024 the new legislation states that participants can only use their NDIS funding for items that are NDIS supports. The National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024
(the Transitional Rules) provides a list of what are NDIS supports, and a list of support items that cannot be funded by the NDIS.[5] For clarity I will refer to supports that can be funded by the NDIS because they are listed in schedule 1 as the ‘in list’, and I will refer to supports that cannot be funded because they are listed in schedule 2 as the ‘out list’.
[5] Section 10(4) of the Act allows the Respondent to classify that a support is not an NDIS support. Schedule 2 of the Transition Rules sets out the list of these supports for purpose of section 10.
The Applicant is seeking the Control 4 system for the purpose of voice activation control to secure her front gate and front door.
The Respondent contends that the Control 4 system cannot be funded by the NDIS because item 1(c) on the out list states that the following are not NDIS supports:
Standard home security and maintenance costs, fencing, gates, and building repairs.
THE LEGAL FRAMEWORK
Section 34 of the NDIS Act identifies what establishes a reasonable and necessary support under the scheme. Section 34(1) is cumulative, and all the criteria must be met for a support to be funded by the NDIS.
To understand what constitutes a NDIS Support on the in list I turn to section 10 of the NDIS Act. Section 10 of the NDIS Act states:
Supports that are NDIS supports
(1) Subject to subsections (4) and (9), a support is an NDIS support for a person who is a participant or prospective participant if the support is declared by National Disability Insurance Scheme rules made for the purposes of this subsection to be an NDIS support for:
a.participants or prospective participants generally; or
b.a class of participants or prospective participants that includes the person.
The relevant rules in respect of this review are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules).
Rule 3 of the Support Rules relate specifically to subsections 34(1)(c) - (e) of the Act and centre on what factors are taken into consideration when determining if a support represents value for money relative to the benefits achieved and the costs of alternative support. Rule 5 provides general criteria in which a support will not be funded if it is likely to cause harm or pose a risk to others, duplicates other supports or relates to day to day living costs that are not attributable to a participant’s disability support needs.
The principles on which the NDIS is based are contained in section 4 of the NDIS Act and are significant considerations to my determination of this matter. These principles should be stated in full, and I do so below:
(1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
(2) People with disability should be supported to participate in and contribute to social and economic life.
(3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
(6) People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation.
(7) People with disability have the same right as other members of Australian society to pursue any grievance.
(8) People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives.
(9) People with disability should be supported in all their dealings and communications with the Agency and the Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.
(9A) People with disability are central to the National Disability Insurance Scheme and should be included in a co-design capacity.
(10) People with disability should have their privacy and dignity respected.
(11) Reasonable and necessary supports for people with disability should:
(a)support people with disability to pursue their goals and maximise their independence; and
(b)`support people with disability to live independently and to be included in the community as fully participating citizens; and
(c)develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
(12) The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.
(12A) The relationship between people with disability and their families and carers is to be recognised and respected.
(13) The role of advocacy in representing the interests of people with disability is to be acknowledged and respected, recognising that advocacy supports people with disability by:
(a) promoting their independence and social and economic participation; and
(b)promoting choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(c)maximising independent lifestyles of people with disability and their full inclusion in the community.
(14) People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme.
(15) In exercising their right to choice and control, people with disability require access to a diverse and sustainable market for disability supports in which innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of those supports is promoted.
(16) Positive personal and social development of people with disability, including children and young people, is to be promoted.
(17) It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to the need to ensure the financial sustainability of the National Disability Insurance Scheme.
It’s important I consider the general principles of the Act in conformity with section 34(1) and the Rules, noting that if one of the requirements in ss 34(1)(aa)-(f) is not satisfied, then a support cannot be funded by the NDIS.
EVIDENCE
I have considered all the written evidence provided in the Joint Tender Bundle filed to the Tribunal, the oral evidence provided at the hearing and both parties’ closing submissions. I will refer to the evidence that is directly relevant to my determination of this matter.
What is the support being requested: Control 4 system
The Control 4 is a system that enables the user to automate particular home attributes. The system works via controlling home attributes that are connected to it, such as turning on and off lighting, audio, video, climate control, appliances, adjusting entertainment controls, alarms and security.
The system can work via different programmable methods, such as via a user’s phone app, via voice command or via remote control buttons. The system has uninterruptable power supply or backup battery so that should main power fail the system will continue to run.
A user purchases the Control 4 system, it is installed in the home with the programming and configuration done by a qualified professional, specific to the requirements of the user.
Applicant’s Position
In making my decision and pursuant to section 33(5)(a) of the NDIS Act I have considered Ms Hyde’s current plan goals which are as follows:
Short-term
I would like support to retain my full-time employment with the NDIS by having disability specific support to enhance my chance of being promoted and developing my leadership skills.
I would like to be supported to access further education of my choice.
Medium-term
I would like support to help me find and buy a property to suit my disability-specific needs and my guide dog.
I would like to continue my passion for para triathlon and cycling, both adventure racing and finding guides to help me access my sport. This will let me find mentors and friends, so I am not isolated and lonely due to my disability.
Long term
I would like to improve my skiing during winter, this element is not blind friendly, and I would like to be involved in disability winter sports and have assistance to support my guide dog and myself to access the snow.
I would like to improve my independence in my home and in the community by having access to technology and mobility aids that reduce my dependence on other people.
I would like to improve my personal social skills and develop my informal friendships. My disability stops me understanding social cues, body language, communication platforms, dating, staying in touch. If I can have the right support to improve my social skills and better understand these factors, I would feel more included in the community.
Ms Hyde also relies upon the following evidence provided in the Joint Tender Bundle documents filed with the Tribunal:
·Report of Ms Kathy Inglis, occupational therapist dated 27 July 2023
·Experienced dog guide handler assessment form by Ms Brooke Anderson Vision Australia dated 7 March 2024
·Email from Mr Stuart Ford Director of A1 Automation dated 22 July 2024 and 19 November 2024
·Email Mr Peter Snell Special Counsel Moray & Agnew dated 30 October 2024
·Respondent submissions on legislative amendments dated 7 November 2024
Ms Hyde gave oral evidence at the hearing. Her oral evidence is summarised below:
·She is legally blind, and her vision is expected to shortly degenerate to complete vision loss.
·She is a high falls risk and has experienced many falls, some requiring medical attention.
·She is seeking the Control 4 system so that she can use voice activation to secure her home independently.
·Lives alone with her current guide dog and her retired guide dog.
·Bought her home in mid-2022, as it was within her financial means and in her known suburb, plans to live there long-term.
·The townhouse is located in a row of townhouses built by a developer, close to public transport and facing onto a busy street.
·Access to her front door is through a small, grassed courtyard, used as the entry point for all support workers, deliveries and guests.
·There is a dog door in her front door to allow her dogs access the grass area.
·The courtyard is fenced with a pedestrian gate secured by standard keylock and a latch, the gate is accessible from the footpath via four stairs leading up to the pedestrian gate.
·She has locked herself out of the home many times and tried various methods of keeping her keys secure and accessible, lock box, tactile markers, rubber key covers.
·Described a situation where she locked herself out late at night without her phone, her guide dogs or white cane and had to utilise her hands to feel her way down the street to a local petrol station and get them to provide help.
·Cannot use the current keylock to secure the front gate due to her vision impairment and requires the front access to her home to be secured for her own safety and that of her guide dogs.
·Front gate has unknowingly been left ajar and her guide dogs have wandered onto the street.
·Deliveries have been dropped off inside the front gate without her knowledge and dogs have eaten at them.
·Currently uses voice activation via Google home to control some home features, she utilises voice activation on her phone and uses screen reader technology at work, study and at home.
·Uses delivery services for most daily life needs such as groceries due to her vision impairment.
·Undertook an in person trial on 28 January 2025 of the Control 4 system in a showroom with her Occupational Therapist
·The Control 4 system works as a unified system for the whole home, rather than requiring multiple different apps.
·Control 4 system is not within her financial means to pay for privately.
·Any ongoing subscription costs related to the Control 4 system she would pay for privately.
Ms Hyde also supplied a Statement of Lived Experience dated 3 December 2024.[6] The statement details that the Control 4 system would be customised to her individual needs to ensure she can lock and unlock the front gate via voice command and visitors can announce themselves to her while she is inside the home.
[6] JTB, AO1 Applicant’s Statement of Lived Experience
Her statement details that having the ability to independently control her own safety and security in the home would provide a level of independence that she doesn’t currently have and decrease her need for direct person to person supports. Her statement notes that because she cannot see, she cannot visually identify people, and this amplifies her anxiety, depression and PTSD within her own home environment. The statement also details a break-in that occurred at her home via her dog door causing her to be hypervigilant for her own safety.
The statement also details that the current fencing including the front pedestrian gate with key lock and latch, were part of the property when Ms Hyde took possession.
Mr Peter McVicar, FM Home Technologies Managing Director
Mr McVicar was called to give oral evidence by Ms Hyde. Mr McVicar is the Managing Director of FM Home Technologies Pty Ltd. His evidence can be summarised as:
·He assisted Ms Hyde and her occupational therapist during the trial of the Control 4 in his showroom on 28 January 2025.
·The Control 4 system is not specifically designed for people with disabilities.
·The Control 4 system can be bought by the general public.
·He has installed many Control 4 systems for people without disabilities, as well as for people with disabilities.
·Users can control the system via voice activation, touch screen and/or video relay camera, depending on their preferences and needs.
·It is an off the shelf product that is purchased by a user, it is then installed and customised for the needs of the person and configured to their home environment and their desired devices/appliances.
Ms Andelka Obradovic, occupational therapist
Ms Obradovic is an occupational therapist engaged by Ms Hyde. Her occupational therapy assessment dated 3 July 2024 was filed with the Tribunal along with her supplementary report dated 13 February 2025.
In her 3 July 2024 report Ms Obradovic describes the floor plan of Ms Hyde’s townhouse and street location as well as provides photos of the current fencing and gate. She details that Ms Hyde currently uses the Google Home app in her home.
Ms Obradovic’s report dated 13 February 2025 outlines the in-person trial at the showroom undertaken on 28 January 2025 by Ms Hyde of the Control 4 system. In the report Ms Obradovic stated, ‘the trial recommended by the NDIA’s independent occupational therapist, Mr Barrie and conducted by me with Casey at FM Home Technologies was overwhelmingly successful’.[7]
[7] JTB, AO7, Supplementary report of Ms Obradovic dated 3 February 2025
Mr Ben Barrie, occupational therapist
Mr Barrie is an occupational therapist engaged by the Respondent. His occupational therapy assessment dated 3 July 2024 was completed on the papers rather than in-person with Ms Hyde. He also completed a supplementary report dated 8 November 2024 and filed with the Tribunal.
In his 3 July 2024 report Mr Barrie describes two alternative systems that are lower cost and compatible with Google home app. He also describes that a solution may be to leave the front gate unlocked permanently and to only lock the front door of the home.
In his supplementary report dated 8 November 2024 Mr Barrie states that on balance his recommendation has changed after reading Ms Obradovic’s report. He states his opinion is that the Control 4 system is the best solution to allow Ms Hyde to maintain access and control of her home.
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.
CONSIDERATION
The 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…
The operation of subsection 5(1) of the Transitional Rules, means the in list supports are subject to exclusion by supports listed on the out list. The Explanatory Memorandum at page 11 confirms that this is what Parliament intended by subsection 5(1):
This means that supports prescribed for the purpose of subsection 5(1) will not be NDIS supports if they are covered by ... subsection 5(2) of the Instrument.
This is consistent with the reasoning of Member Williams in Duse and National Disability Insurance Agency [2025] ARTA 37 and Member Toohey in DRVV and National Disability Insurance Agency [2025] ARTA 158. In Duse, art supplies were held to be a ‘day-to-day living cost’ under the out list. In DRVV a BBQ was held to be a standard household item under ‘day-to-day living costs accommodation and household’ under the out list as it was not modified or adapted to address the functional impairments of the participant.
The Respondent contends the Control 4 system cannot be funded by the NDIS as it falls within the out list. Specifically, the Respondent points to item 1(c) on the out list as it states the following cannot be funded:
Standard home security and maintenance costs, fencing, gates, and building repairs.
Both the in and out lists do not define what is meant by the term standard home security nor does the new amendments define the meaning of the individual word standard. Section 4 of the Explanatory Memorandum does provide a definition of the term standard item:
standard item for a person means an item that is not modified or adapted to address the person’s functional impairments. There are a number of items that are declared not to be NDIS supports because they are ‘standard’, meaning that they will not be funded by the NDIS because they are not modified or adapted to address a participant’s functional impairments. The NDIS does not fund standard products that are the responsibility of any person to purchase for themselves.
Member Williams in Duse states at 156-157:
Unlike Rule 5(1) in the Support for Participants Rules, there is no requirement in Rule 5(2) of the Transitional Rules that links the requested support to a participant’s disability support needs. In the case of the Rule 5(1), if there is such a link between a requested support and a participant’s disability support needs, it is then possible to infer that it is therefore not a day-to-day living cost.
Therefore, if a support is listed in schedule 2 as ‘not an NDIS support’, it is irrelevant that it is related either directly or indirectly to a participant’s support needs.
I have considered the Respondent’s contention that the Control 4 system is a standard security system because it is available to buy off the shelf by the general public, no adaption or modification at the point of sale. I respectfully do not agree with this interpretation. The Respondent also contended that each component of the Control 4 system, when broken down into its individual parts, demonstrates that each segment fits the scope of a day to day item and therefore constitutes a standard living cost. I also respectfully do not agree with this construction.
I will first deal with the Respondent’s contention that the system is a standard security system as it is available to buy off the shelf by the general community. In my view adopting this definition means participant’s choice and control would become significantly narrowed, foregoing the principles of accessibility and inclusion as they relate to people with disability and their full participation in life. I consider that adopting this definition would only proffer to widen the gap between the disability community and mainstream Australia. Adopting this definition would negate the fact that many mainstream devices or items are often highly innovative, cost effective, more widely available and generally more inclusive.
I am of the view that an approach marrying the duality of two key concepts, firstly that NDIS funding isn’t welfare for use on day-to-day living costs[10], with the intended purpose of the NDIS which is to provide independence, access to new skills and an improved quality of life for people with a disability- is used.
[10] Rule 5.2 (a) of Supports Rules states day to day living costs do not include costs incurred solely and directly as a result of their disability support needs.
In this way it properly acknowledges that the NDIS is an insurance scheme founded on the principle of investing in the lives of people with disability. It also properly acknowledges the dignity of NDIS participants to enjoy full participation in life.
However, as Member Williams points out in Duse, where a support is listed on the out list, it becomes irrelevant whether it is related either directly or indirectly to a participant’s support needs.
It is from this basis of perspective that my view has been formed about the support. I have determined that the current key lock on the front door, front gate and the gate itself, inaccessible to Ms Hyde due to her visual impairment, meets the very definition of standard home security. From the evidence this fencing and security measure is the same for each townhouse in her street. In applying this definition to the facts, the key locks currently on Ms Hyde’s door and gate are the standard home security system. The sentence at the end of the definition of standard item in the Explanatory Memorandum lends itself to this construction stating:
The NDIS does not fund standard products that are the responsibility of any person to purchase for themselves.
I am persuaded by the lived experience evidence of Ms Hyde specifically where she plainly highlighted, she has unsuccessfully attempted to use the security measures already installed when she took possession of the property in 2022, along with her goal to be as independent and self-reliant as possible. On the evidence Ms Hyde has been responsible for purchasing this standard key lock security for her home, has attempted to use it, and is simply seeking a system that she can independently use. I am further persuaded by the oral evidence of Mr McVicar that the Control 4 system can be adapted, customised and modified for voice activation control to Ms Hyde’s individual needs.
In this way I regard that the Control 4 system is not a standard home security system. In my view the Control 4 system is a support for Ms Hyde that is adapted, modified and customised to put her in control of her own home safety by allowing her the independence to lock and unlock her own home amongst other voice automation tasks, without the dependency of requiring direct support from another person.
I have considered the in list to understand what is an NDIS support, particularly looking to item 22. Under the heading ‘Home modification design and construction’ at item 22 on the in list it states that:
Supports that design, change or modify a participant’s home to help the participant live as independently as possible and to live safely at home.
This includes:
·installing equipment or changing a building’s structure, fixture or fittings
·internal and external building modifications to remedy damage arising exclusively from disability-related behaviours or use of NDIS funded assistive technology or equipment regulatory certification requirements for works.
In my view, the support requested by Ms Hyde is correctly categorised by item 22 on the in list as installing equipment or changing a building’s structure, fixture or fittings. The control system is a mechanism with multiple fixtures and fittings that require installation and configuration.
I have considered financial sustainability of the NDIS in reaching this view. This support is one with longevity as Ms Hyde intends to live in her townhouse long term. Further, the in list indicates item 22 is a ‘stated support’ providing the safeguard for financial sustainability. I reached this view by analysing the in list, column three at item 22 where it declares this support is for:
Participants who have the support stated in their plan and prospective participants who are likely to have this support stated in their plan.
In this way column three clarifies the boundaries for whom and how a support can be funded. By asserting that a support is stated, means the participant must first have the support listed and allocated in their plan by a delegate. Only after this has occurred are the plan funds available to spend on the supports as expressly described. In this way, stated support funding cannot be used for any other purpose. This means that only certain participants will be able to access these supports.
Stated supports are a prescribed category opposite to most NDIS core funding categories that can be used flexibly. My understanding of new framework plans is that this will continue, with the need for any stated support identified through the needs assessment report then being prescribed into the plan.
Turning to the cost of installation of the new electrified gate and removal of the current gate I find these supports fall within item 22 as a change to fixtures or fittings. On the evidence it has been established that electricity isn’t connected to Ms Hyde’s front yard. It has also been established on the evidence that the current gate will need to be replaced in order for this system to be linked to the new gate and programmed to her needs. Therefore, I am satisfied the Control 4 system is within the scope of item 22 of the in list.
Accordingly, I have satisfied myself that on the evidence before me that the Control 4 system and fencing gate are NDIS supports for Ms Hyde.
REASONABLE AND NECESSARY
I turn now to my consideration of each of the subsections in s 34(1) of the NDIS Act known as the reasonable and necessary criteria. Each criterion must be positively satisfied for the support to be funded by the NDIS.
Whether the Control 4 system is necessary to address the needs arising from the impairment in relation to which Ms Hyde met the disability requirements: section 34(1)(aa) NDIS Act
The first question I need to determine is whether the Control 4 system is necessary to address the needs arising from her visual impairment. Ms Hyde met access on her permanent vision impairment. At the hearing Ms Hyde gave oral evidence about living alone, her daily life, her security concerns, her inability to visually recognise people that attend her home and her need to keep both herself and her guide dogs safe.
Ms Hyde outlined to the Tribunal experiences of locking herself out of her home and the hypervigilance that she experiences in wanting to be as independent and self-sufficient as possible, while having piece of mind that she is safe and secure in her own home environment on her own terms.
In her oral closing submission Ms Hyde made the point that if she were not disabled, she would not have ever chosen to own a dog, let alone be living currently with two guide dogs. I have considered this explanation as being made to illustrate the factual causation of life as a person with disability.
On the evidence provided I am satisfied that having the ability to use voice automation/activation for her home including for front door lock and front gate lock is directly necessary due to Ms Hyde’s permanent visual impairment.
I find the Control 4 home automation system meets s33(1)(aa) because it is necessary to address the needs arising from her permanent vision impairment for which she met the NDIS access requirements.
Whether the Control 4 system will assist Ms Hyde to pursue the goals, objectives and aspirations in the participant’s statement of goals and aspirations: s 34(1)(a) of the NDIS Act
Section 33(1)(a) of the NDIS Act states that a plan must include the statement of goals and aspirations prepared by the participant that identifies the goals, objectives and aspirations that the participant wishes to pursue.
Ms Hyde’s current plan includes the short-term goal to buy a home that suits her disability specific needs. This goal has been met. Her current plan also includes the longer-term goal of improving independence in her home and in community by having access to technology and mobility aids that reduce her dependence on other people.
I am satisfied that there is sufficient probative evidence before me that the Control 4 system will assist in pursuit of Ms Hyde’s current goals around independence hence the criterion in s 34(1)(a) is met.
Whether the Control 4 system will assist Ms Hyde to undertake activities to facilitate the participant’s social and economic participation: s 34(1)(b) of the NDIS Act
Ms Hyde gave oral evidence that the system will allow her to open and lock the front gate and front door on her own terms. This increase in independence for Ms Hyde will not only serve her practically, she also gave oral evidence that this will provide her with piece of mind and reassurance in her home environment.
It is for the above reasons that I am satisfied that the Control 4 system will facilitate Ms Hyde’s social and economic participation and s 34(1)(b) is met.
Whether the Control 4 system 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: s 34(1)(c) of the NDIS Act
Based on the evidence before me it seems likely that the cost, including the installation and electrified fencing, will be approximately $15,000. It was acknowledged by Ms Hyde’s own occupational therapist Ms Inglis that the system proposed ‘appears to be an expensive system’ and that there are cheaper options. Mr Barrie the Respondent’s occupational therapist observed video of Ms Hyde using the alternative security system with difficulty and was of the view that in the absence of a successful trial of the Control 4, the Tribunal should not be satisfied that it represents value for money.
Evidence before me shows that other options for voice activation were trialled that were less expensive. Mr Barrie in his report suggested the EUFY app and Orion option along with the option of keeping the front gate unlocked. The trial of the EUFY app was unsuccessful and a video of this trial was submitted in Ms Obradovic’s report dated 17 September 2024.
Ms Obradovic’s other report dated 13 February 2025 outlined that she accompanied Ms Hyde to attend a Control 4 showroom and undertook a successful trial of the Control 4 system with Mr McVicar.
Ms Hyde gave evidence that being able to control her home security via voice activation on her own terms, would decrease her need for direct person to person support and increase her confidence, wellbeing and peace of mind. Ms Hyde also gave evidence that she intends to reside at her townhouse for the long term.
On the available evidence I am of the view that the Control 4 system would substantially improve life stage outcomes, self-confidence and be of long-term benefit to Ms Hyde. I consider that the evidence is sufficient to satisfy that the Control 4 system will be likely to reduce the cost of direct supports funded in the long term. The requirement of value for money in s 34(1)(c) has been met.
Whether the support will be, or is likely to be, effective and beneficial for Ms Hyde, having regard to current good practice: s 34(1)(d) of the NDIS Act
Rule 3.2 of the Supports Rules states that:
In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances.
That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
Ms Hyde’s evidence is that she is employed, is studying and owns her own home. She gave evidence that she uses voice activation in her daily life, during her employment and study. In her Statement of Lived Experience dated 3 December 2024 she explains:
The journey leading up to this point has been marked by challenges. Nine years of accommodation insecurity, twenty-eight relocations, and the rejection of rental applications plagued my earlier years. In 2018, while homeless and denied shelter due to my guide dog, I resolved to purchase a house, overcoming societal judgments that failed to accept me for who I am. Over the last 16 months, the NDIS's oversight in reading my Occupational Therapy report has compelled me to repetitively explain my situation, causing undue stress. The absence of a smart gate in my front yard denies me the safety and independence crucial to my daily life… I belong to a small statistic, breaking the odds as a legally blind individual who owns a house.
Her statement outlines the various ways and methods she has trialled, without success, to secure her home in a way that is accessible. She states that:
Attempts with lockboxes, key color-coding, and air tags proved ineffective due to accessibility challenges. Seeking assistance from orientation and mobility officers or locksmiths, particularly after hours, presented its own set of limitations. Trust issues, exacerbated by past experiences of financial exploitation by support providers, further compound my predicament.[11]
[11] JTB, A01, Statement of Lived Experience dated 3 December 2023 page 268.
Ms Hyde gave evidence that using the Control 4 system she will be able to lock and unlock her front gate and her front door via voice activation as well as have visitors announce themselves audibly and allow her to respond and control access from within her home.
On the evidence I am satisfied that the Control 4 system is likely to be effective and beneficial alongside the existing funded support in the plan, thus criteria 34(1)(d) is met.
Whether 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: s 34(1)(e) of the NDIS Act
The evidence before me confirmed Ms Hyde does not have informal supports nearby to provide practical assistance to her. Based on the evidence I am satisfied that the requirement in s 34(1)(e) of the NDIS Act is not relevant to this matter and therefore I have not considered it further.
Whether the support is an NDIS support for the participant: s 34(1)(f) of the NDIS Act
As I have mentioned, section 34(1)(f) is part of the new legislation and requires that a support is an NDIS support on the in list. I am of the view that the Control 4 system may be seen as a luxury, convenience or novelty item by the general public. On the evidence before me, I find the Control 4 system specifically for Ms Hyde is an enabler of independence and assurance, that when considered alongside the purpose of the NDIS, goes to the very heart of why the NDIS was established.
On the evidence I am satisfied that the Control 4 system is an NDIS support for Ms Hyde under s 34(1)(f) as it is not captured by the out list as standard home security. This is because it is adapted and modified to address Ms Hyde’s functional impairment and falls under the scope of item 22 of the in list. For completeness I have also turned my mind to whether the NDIS is the most appropriate system to fund this support, and on the evidence before me I have been satisfied of this for all the reasons I have stated above.
CONCLUSION
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, cabling
b.Supply and installation of front access gate and fence panel to accommodate Control 4 system and electronic strike
Date of hearing: 18 March 2025
Solicitor for the Applicant: Self-represented
Counsel for the Respondent: Mr J Sproule of Counsel
Solicitors for the Respondent: Mr O’Brien, Moray & Agnew
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