Ives and National Disability Insurance Agency (NDIS)
[2025] ARTA 25
•16 January 2025
Ives and National Disability Insurance Agency (NDIS) [2025] ARTA 25 (16 January 2025)
Applicant:Timothy Ives
Respondent: National Disability Insurance Agency
Tribunal Number: 2022/8211
Tribunal:General Member J Toohey
Place:Brisbane
Date:16 January 2025
Decision:1. Under section 53 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal limits the issues to be considered to whether:
(a)an assistance animal;
(b)solar panels and battery; and
(c)a therapy recliner massage tilt chair,
are reasonable and necessary supports to be funded in the Applicant’s statement of participant supports for the purposes of sections 33 and 34 of the National Disability Insurance Scheme Act 2013 (Cth).
2. The decision under review, being the decision of the National Disability Insurance Agency:
(a)made on 16 September 2022 under section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth);
(b)as subsequently reassessed on 23 December 2024 under section 48 of the National Disability Insurance Act 2013 (Cth);
(c)which declined the requested supports listed at 1 above;
is affirmed under section 105(a) of the Administrative Review Tribunal Act 2024 (Cth).
.................................[SGD]...................................
General Member Justin Toohey
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – Reasonable and Necessary Supports – Assistance Animal – Solar Panels and Battery – Massage Chair – Effect of the Getting the NDIS Back on Track Amendments –Application of Transitional Rules – Supports that are Generally not NDIS Supports
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 (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024
Cases
Kupke and National Disability Insurance Agency [2023] AATA 2830
QTBR and National Disability Insurance Agency [2021] AATA 1951
James and National Disability Insurance Agency [2023] AATA 2991
MMBX and National Disability Insurance Agency [2022] AATA 13Secondary Materials
NDIA Operational Guideline ‘Assistance animals including dog guides’ published 20 June 2022Dr Tiffani Howell, La Trobe University, School of Psychology and Public Health ‘Final report to National Disability Insurance Agency: Key terms for animals in disability assistance roles’ dated 7 August 2019
Statement of Reasons
SUMMARY
The Tribunal affirms the decision of Agency such that the Applicant’s statement of participant supports, as subsequently reassessed, remains unchanged. This decision to affirm is made under section 105(a) of the Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’). The reasons for this decision are as set out below.
INTRODUCTION
The issue before the Tribunal is whether the supports requested by the Applicant are reasonable and necessary supports to be funded in the Applicant’s statement of participant supports (‘SPS’) for the purposes of sections 33 and 34 of the National Disability Insurance Scheme Act 2013 (Cth) (‘the NDIS Act’).
The Applicant is a 29-year-old man who is described as living with several disability and health conditions, including a neurological condition which results in him experiencing 30-100 seizures per day.[1]
[1] Report of Judy Scott, Occupational Therapist, dated 1 March 2023, at A7 of the hearing bundle, page 41.
On 21 July 2022, a delegate of the Chief Executive Officer (‘CEO’) of the National Disability Insurance Agency (‘the Agency’) approved a SPS. On 30 August 2022, the Applicant’s Occupational Therapist, Judy Scott, requested an internal review of the delegate’s decision on behalf of the Applicant. On 16 September 2022, the Agency affirmed its original decision and on 27 September 2022, the Applicant’s mother applied for a review by the Administrative Appeals Tribunal (‘AAT’) on Mr Ives behalf under section 103 of the NDIS Act and section 25 of the AAT Act.
A hearing was held on 12 and 13 September 2024. The Applicant did not attend the hearing due to his significant disability and co-morbidities. The Applicant’s mother and plan nominee, Susan Ball, attended the hearing and was assisted by Disability Advocate, Martin A’Bell from People with a Disability Australia. The Agency was represented by Counsel, Genevieve Yates.
ISSUES
The issues before the Tribunal are whether the following are supports are reasonable and necessary support for the Applicant:
(a)An assistance animal;
(b)Solar panels and battery; and
(c)Therapy recliner massage tilt chair.
Prior to the hearing, air-conditioning was also an issue in dispute. At the start of the hearing, the Agency advised that the request for air-conditioning had been accepted and proposed to include funding for in the Applicant’s plan subject to receiving a quote from the Applicant. The Tribunal directed the Agency to confirm whether this had been implemented as a variation and added to the Applicant’s plan by 20 September 2024, however the relevant quotes were not provided by the Applicant until 18 November 2024.
Following the hearing, both parties were also provided with the opportunity to make written submissions. While these submissions were being finalised, the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) (‘Back on Track Amendment Act’) commenced on 3 October 2024. The parties were provided a further opportunity to address these amendments.
In responding to these amendments, on 16 November 2024, the Applicant’s mother raised that the Applicant’s support needs had increased due to the Applicant’s grandmother requiring additional care from the Applicant’s mother. The procedural options for addressing these changed circumstances (and the outstanding air-conditioning issue) after the hearing had concluded, were discussed at a directions hearing on 18 December 2024. The Agency advised that some aspects of the air-conditioning quotes were not satisfactory and that they would be arranging for an independent quotes.
On 20 December 2025, the Agency advised that the process for arranging independent quotes regarding the air-conditioning would not be completed until February 2025. The Agency requested the Tribunal limit the scope of the proceeding to the matters that were presented at the hearing. On 2 January 2025, the Applicant agreed to limit the scope of the proceeding to the matters presented at the hearing. With the agreement of the parties, the Tribunal has decided to limit the issues to be considered to those that were presented at the hearing as listed at paragraph 7 above. This decision to limit the issues before the Tribunal is made under section 53 of the ART Act.
In addition to air-conditioning, I also acknowledge the productive efforts of the parties and Tribunal registrars in narrowing the issues in dispute. Prior to hearing, other supports that were agreed between the parties included funding for a Massimo pulse oximeter, and that the Applicant’s sibling could be paid as a formal support worker.
TRANSITION TO THE ADMINISTRATIVE REVIEW TRIBUNAL
On 14 October 2024, the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (‘the Transitional Act’), 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. The Transitional Act gives the 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 the Tribunal.
GETTING THE NDIS BACK ON TRACK AMENDMENTS
The Back on Track Amendment Act made significant amendments to the NDIS Act. The new section 32A on the NDIS Act sets out that there are now two kinds of plans: being ‘new framework plans’ and ‘old framework plans’. New section 32B provides for the making of rules for classes of participants that are to have new framework plans. New section 32BA provided for a notice of impairments and that rules may be made for when this notice must be given in relation to existing participants. Rules for the purposes of section 32B and 32BA have not yet been made.
Section 129 of the Back on Track Amendment Act deals with the application of the amendments to content and approval of ‘old framework plans’ and states that:
sections 33, 34 and 35 of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, apply in relation to a statement of participant supports included in an old framework plan for a participant if the statement is approved or varied on or after that commencement.
… (a) whether the participant becomes a participant; and
(b) in the case of a variation—whether the plan comes into effect;
before, on or after that commencement.
The Tribunal on review is now considering whether supports are reasonable and necessary and should be funded as part of an SPS. It would appear that parliament intended for the Tribunal to apply the amended considerations in section 33, 34, 35 to the Tribunal’s decision-making process.
New section 34(1)(aa)
The amendments insert a new section 34(1)(aa) that must be satisfied for a support to be considered reasonable and necessary and requires that:
(aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participantmeets the disability requirements (see section 24) or the early intervention requirements (see section 25)
The parties agree, and I am satisfied, that the requested supports are intended to address needs of the Applicant arising from impairments which meet the disability requirements.
New section 34(1)(f) and transitional rules
The amendments also added section 34(1)(f) which requires that the support is a NDIS support for the participant. This, in turn, applies the new definition of ‘NDIS support’ in section 10. Section 10 provides that rules may be made that declare whether a support is (or is not) a NDIS Support. Section 124 of the Back on Track Amendment Act states that the reference to rules made under section 10 includes rules made under section 138 of the Back on Track Amendment Act which allows the Minister to make transitional rules.
The Minister has made the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (‘Transitional Rules’) and these rules also commenced on 3 October 2024. The Transitional Rules set out in detail supports that are (and are not) NDIS supports. The Transitional Rules are relevant to the issues before the Tribunal and I consider these rules further below.
21.The Minister has also made National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024 (‘Miscellaneous Transitional Rules’). Section 7 of the Miscellaneous Transitional Rules requires that a decision-maker must also be satisfied the support is most appropriately funded or provided through the National Disability Insurance Scheme, and not more appropriately funded or provided through other general systems of service delivery or support services. In effect this means that decision-makers are (at least until new rules are made) applying two versions of section 34(1)(f), as it was before the amendments, and the new version as amended. As will be seen, I do not need to address the issue of section 43(1)(f) as it was prior to the amendments.
OVERVIEW OF THE NDIS DECISION-MAKING FRAMEWORK
Chapter 1, Part 2 of the NDIS Act sets the Act objects and principles including, for example, that the NDIS Act is to support the independence and social and economic participation of people with disability,[2] and that decision-makers are to have regard to the need to ensure the financial sustainability of the scheme.[3]
[2] Section 3(1)(c).
[3] Section 3(3)(b).
Chapter 3, Part 2 of the NDIS Act deals with participants and their plans and includes further principles in relation to the preparation, variation, reassessment and replacement of plans. This guidance includes that this planning process should, so far as reasonably practicable, be directed by the participant,[4] and be underpinned by the right of the participant to exercise choice and control over his or her life.[5]
[4] Section 31(a).
[5] Section 31(g).
A participant’s plan must include a statement of the participant’s goals and aspirations[6] as well as a statement of participant supports that includes the reasonable and necessary supports that will be funded by the Agency.[7] In deciding to approve a statement of participant supports, the Agency must have regard to the matters set out in section 33(5), including applying the NDIS rules,[8] and be satisfied that each support meets the criteria in section 34. The criteria in section 34(1) are that:
(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 …
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is an NDIS support for the participant.[9]
[6] Section 33(1).
[7] Section 33(2)(b).
[8] National Disability Insurance Scheme (Supports for Participants) Rules 2013.
[9] And, by virtue of the Miscellaneous Transitional Rules, that the support is most appropriately funded or provided through the National Disability Insurance Scheme, and not more appropriately funded or provided through other general systems of service delivery or support services.
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘Support Rules’) also remain in force and provide greater explanation of the application of the crtieria in section 34. For example, in relation to assessing value for money for section 34(1)(e), Rule 3.1 says that a decision-maker must consider:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports) …
The NDIS Operational Guidelines also assist in making decisions in accordance with the NDIS Act. Operational guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[10] The relevant operational guideline is ‘Assistance animals including dog guides’ (‘Assistance Animal Guideline’) published 20 June 2022.
[10] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
SUMMARY OF EVIDENCE
The Tribunal was provided with a joint hearing bundle by the parties, and this was accepted into evidence at the hearing.[11] This large bundle of documents (490 pages) included:
[11] The document numbering in the hearing bundle index is adopted throughout these reasons.
(a)The ‘T-documents’;[12]
[12] Which are all the records that the Agency considered when making the decision under review as required by section 37 of the AAT Act.
(b)A quote and letter from ‘A Dog’s Choice’, assistance dog trainer, dated 1 March 2020.
(c)Reports from Judy Scott, occupational therapist, dated 6 August 2021, 17 June 2022, 1 February 2023, and 1 March 2023;
(d)A letter from ‘Misty Mountain Labradoodles’, an assistance animal provider, dated 30 July 2021;
(e)A letter from Chantee Tunbridge, registered nurse, dated 13 May 2022;
(f)A letter from Christie Seddon, support coordinator, dated 16 September 2022;
(g)A letter from Dr Jonathan Cafferky, the Applicant’s general practitioner, dated 15 November 2022;
(h)A letter from Dr Philip Mosley, the Applicant’s treating neuropsychiatrist, dated 23 May 2023;
(i)A statement from the Applicant’s mother, dated 2 July 2023;
(j)Letters from Jodie Pratt, support coordinator, dated 5 December 2023 and 25 June 2024;
(k)A functional assessment report arranged by the Agency from Matthew Wong, occupational therapist, dated 23 January 2024;
(l)A letter from Kevin Cloete, the Applicant’s mother’s treating psychologist, dated 3 May 2024; and
(m)Various letters and notifications from the Applicant’s electricity providers.
In addition, the Tribunal and the parties agreed for several items, which were not included in the joint hearing bundle, to be added as individual exhibits at the commencement of the hearing. The items included:
(a)A report from Chantel Peens, the Applicant’s mother’s physiotherapist, dated 23 July 2024;
(b)A functional assessment report arranged by the Applicant from Tanya Moulden, occupational therapist, dated 6 September 2024;
(c)A letter for Dr Viral Chikani, endocrinologist, dated 16 April 2024;
(d)A further letter from Dr Philip Mosley dated 30 July 2024;
(e)A further letter from Judy Scott dated 30 June 2023; and
(f)A notification from Ergon Energy Network and Energex to life support customers dated 2 May 2024.
The Tribunal also had the benefit of receiving written submissions from the parties and oral evidence from the Applicant’s mother, and Matthew Wong, occupational therapist. The authors of the various reports and letters prepared for the Applicant, including Judy Scott and Tanya Moulden, were not made available for the hearing.
CONSIDERATION
Applicants’ goals and operation of previous plans
Section 33(5)(a) of the NDIS Act says that, in deciding whether or not to approve a statement of participant supports, decision-makers must have regard to the participant’s statement of goals and aspirations. A copy of the Applicant’s reassessed plan, dated 23 December 2024, records the Applicant’s goals as being:
(a)Short-term goal: I would like to receive supports within the home and the community so that I can become more independent during this plan.
(b)Medium or long-term goal: I would like the opportunity to access allied health services and explore recommendations to maintain and improve my overall health and quality of life during this life.
(c)Medium or long-term goal: I would like to continue my studies in the future with supports.
(d)Medium or long-term goal: I would like to look at opportunities to travel and/or go on a holiday.
During the hearing, the Applicant’s mother raised some concerns that these goals were out-of-date. The Agency advised the Applicant that these goals could be updated at any time under section 47 of the NDIS Act.
For completeness, the Tribunal notes that neither party made any submissions regarding section 33(5)(f) in relation to the operation and effectiveness of any previous plans; or section 33(5)(g) in relation to the acquittal of NDIS amounts.
Assistance animal
Transitional Rules
Assistance animals are included in Schedule 1 of the Transitional rules which specify ‘Supports that are NDIS supports unless otherwise provided’. Schedule 1, Item 2, Column 2 states that the supports that can be provided in the assistance animals category are:
Support provided by an eligible assistance animal. This includes the following:
(a) assessment, matching and provision of an eligible assistance animal;
(b) dietary needs;
(c) grooming;
(d) veterinary services including flea and worm treatments, medication, and
vaccinations;
(e) yearly reviews to maintain accreditation.
Section 4 of the Transitional Rules defines an eligible assistance animal as meaning a dog or other animal that is:
(a) accredited under a law of a State or Territory that provides for the
accreditation of animals trained to assist a person with a disability to
alleviate the effect of the disability; or
(b) accredited by an animal training organisation prescribed in regulations
made under section 132 of the Disability Discrimination Act 1992 for the
purposes of paragraph 9(2)(b) of that Act; or
(c) accredited by a registered NDIS provider who is registered to provide
assistance animals under section 73E of the NDIS Act; or
(d) trained to assist a person with a disability to alleviate the effect of the
disability and to meet standards of hygiene and behaviour that are
appropriate for an animal in a public place.
Schedule 1, Item 2, Column 3 states that item 2 applies to:
Participants who have the support stated in their plan and prospective participants
who are likely to have this support stated in their plan
The Applicant does not currently have an assistance animal as a support stated in his plan and is not a prospective participant. It is not clear that the Transitional Rules apply to the Applicant. Neither party submitted that the Transitional Rules do not apply. The Tribunal has not considered the applicability of the rules further on the basis that an assistance animal is not excluded from being a NDIS support. Therefore, the Tribunal must consider the other criteria in assessing whether an assistance animal is a reasonable and necessary support for the Applicant.
Submissions
The Applicant submitted that an assistance animal would:[13]
[13] Applicant’s Statement of Facts, Issues and Contention dated 8 August 2024, pages 5 to 20.
(a)support his goal of becoming more independent in the home and community;
(b)assist with daily tasks;
(c)mitigate anxiety and provide emotional support;
(d)enhance participation in social activities, study and employment opportunities;
(e)potentially reduce the need for some personal care services, medications, and therapies;
(f)alert the Applicant to hazards and reduce the risk of falls;
(g)recovery items and support balance;
(h)alert informal supports to unconsciousness, seizures and blood sugar spikes;
(i)alert the Applicant to doorbells, phones and smoke alarms when experience a dissociative seizure;
(j)remind the Applicant to take medication;
(k)provide ‘grounding’ during panic episodes including through deep pressure therapy;
(l)help regulate the Applicant’s emotions and behaviours; and
(m)improve his confidence in social settings.
The Applicant also emphasised, in both written and oral submissions, that the Agency’s Assistance Animal Guideline[14] published 20 June 2022 did not properly acknowledge the benefits of assistance animals as outlined in the La Trobe University Report[15] which the Assistance Animal Guideline refers to. In particular, the Applicant provided the following quote:
The outcome measures for all studies typically related to quality of life, independence, self-esteem, social interactions, and community participation. Overall, results suggest that the presence of an AA improves all of these outcomes. Survey and interview results indicate that AAs provide a considerable improvement in independence, quality of life, social interactions, and community participation for their owners with disability.
[14] NDIA Operational Guideline ‘Assistance animals including dog guides’ published 20 June 2022.
[15] Dr Tiffani Howell, La Trobe University, School of Psychology and Public Health ‘Final report to National Disability Insurance Agency: Key terms for animals in disability assistance roles’ dated 7 August 2019.
The Agency sought to characterise the Applicant’s request as being for a seizure-alert dog[16] and submitted that:
[16] Agency’s Statement of Facts, Issues and Contentions (SFICS) dated 4 June 2024 at paragraph 15.
(a)the Assistance Animal Guideline requires an animal to be trained to perform at least three tasks or behaviours which it would not normally do, which mitigate the effects of a person’s disability, and that the Applicant has not demonstrated the required three tasks;[17]
(b)the assessment of benefits should focus on the specific tasks performed rather than companionship or emotional benefits;[18]
(c)similar grounding behaviours could be provided by well-trained pet;[19]
(d)the identified benefits are general and there is insufficient evidence to be satisfied of improved independence and other outcomes;[20]
(e)blocking and deep pressure therapy may pose safety risks and be a restrictive practice;[21]
(f)the available evidence on seizure alerting does not support a conclusion that other supports would be reduced;[22]
(g)an assistance animal would duplicate support workers which are still required for line-of-sight supervision and for community access;[23]
(h)there is insufficient evidence that seizure dogs are reliable;[24]
(i)the Applicant has access to more effective support, including support workers for community access, and capacity building therapies;[25]
(j)the cost of an assistance animal does not represent value-for-money.[26]
[17] Agency’s SFICS paragraphs 17 and 22.
[18] Agency’s SFICS paragraph 20.
[19] Agency’s SFICS, table at paragraph 22.
[20] Agency’s SFICS, table at paragraph 22.
[21] Agency’s SFICS, table at paragraph 22.
[22] Agency’s SFICS, table at paragraph 22.
[23] Oral closing submissions.
[24] Oral closing submissions and Supplementary Written Closing Submissions dated 18 October 2024, at paragraphs 38 and 39.
[25] Agency’s SFICS, table at paragraph 22.
[26] Oral closing submissions.
Written evidence
Several reports were provided that support the Applicant’s request for an assistance animal. For example, Tanya Moulden observed:
… research directly links assistance animals with enhanced quality of life, life satisfaction, self-esteem, and reduced loneliness and depression. These capacity-building factors would Timothy Ives, FCA, 06/09/2024, 28 support Tim dramatically, given his proved difficulties engaging with others …[27]
[27] Report of Tanya Moulden pages 27 and 28.
Judy Scott also considered that an assistance animal would be beneficial:
Provision of an assistance animal will increase Tim’s independence by providing him with support to complete daily routines, alerting Tim’s family and caregivers to seizure activity (thereby reducing the level of supervision required) and assisting him to reorient himself following seizure activity without the presence of another. His quality of life will be improved, as he will be less reliant on others for supervision and support.[28]
[28] Report of Judy Scott dated 1 February 2023, at page 4.
Additionally, Matthew Wong concluded that:
It is anticipated that with an assistance dog that has the capability to effectively alert Timothy’s supports of seizures, there will be a reduction in the direct line of sight monitoring and an increase in safety. The assistance dog is not anticipated to change the hours of support with community access, however, depending on Timothy’s mother’s capacity to continue providing support, it is likely that the paid formal support could be reduced by at least 25%.[29]
[29] Report of Matthew Wong, pages 22 and 23.
However, not all of Matthew Wong’s observations were supportive of the provision of an assistance animal. For example, at page 9 of his report Mr Wong says:
… the use of an assistance dog would be considered as a duplicate of support for community access given that Timothy would still require a support person to be with him when accessing the community.
Other relevant written material in the Joint Hearing Bundle includes a letter from ‘Misty Mountain Labradoodles’ at T1G which guarantees that they would replace and rehome an assistance animal if the animal did not pass a public access test.
Oral evidence
At the hearing, the Applicant’s mother’s oral evidence included that:
(a)a previous pet dog provided grounding for the Applicant by staying close to the Applicant during post-seizure recovery, licking his hand, and by the Applicant being able to feel the dog’s fur;
(b)the Applicant’s mother would take responsibility of ongoing care and training for the animal and that this would be a ‘joy’ rather than an additional burden;
(c)an assistance animal would also provide a visual aid for people to identify the Applicant as a person with a disability and could use blocking techniques to prevent people approaching the Applicant in public;
(d)the Applicant can often (but not always) self-identify when seizures are about to occur and alert formal or informal supports via a text message; and
(e)a person (as opposed to an animal) is still required to assist the Applicant with seizure safety and recovery, including fitting his CPAP mask.
Matthew Wong’s evidence included that:
(a)there is some overlap between the seizure detection functions of the Massimo pulse oximeter and assistance animal, but that it would be beneficial to have both to reduce risks;
(b)with an assistance animal, an informal or formal support-worker would still be required to be present in the home at all times;
(c)the reliability of an assistance animal for seizure detection can be variable and would need to have ongoing assessment and monitoring.
Other Tribunal Decisions
At the request of the Tribunal. The parties provide written submissions regarding other relevant Tribunal decisions that have dealt with assistance animals. The Agency noted the following decisions:
(a)Kupke and National Disability Insurance Agency [2023] AATA 2830 (‘Kupke’);
(b)QTBR and National Disability Insurance Agency [2021] AATA 1951 (‘QTBR’);
(a)James and National Disability Insurance Agency [2023] AATA 2991 (‘James’); and
(b)MMBX and National Disability Insurance Agency [2022] AATA 13 (‘MMBX’).
In summary, the Agency submitted that:
Kupke and QTBR support the Respondent’s contention that the Tribunal cannot be satisfied that any assistance animal for the applicant will be able to be effectively trained to in alerting for seizures, and are not an effective and beneficial support for the purposes of s 34(1)(d) …
Kupke and QTBR concerned, relevantly, the question of the efficacy of seizure-alert dogs. In each decision, the Tribunal had regard to the La Trobe report (currently accessible via the Respondent’s Operational Guidelines for Assistance Animals) and was not satisfied that seizure alert dogs were an effective and beneficial support for the applicants as required by s 34(1)(d) of the Act.
James and MMBX did not concern the question of whether seizure-alerts dogs were a reasonable and necessary support. Rather, concerned assistance animals only. The decisions are irrelevant to the decision under review on that basis.[30]
[30] Agency’s Supplementary Written Closing Submissions dated 18 October 2024, paragraphs 4 to 6.
Also in summary, the Applicant submitted that Kupke and QTBR were less relevant as they focussed on seizure-alert dogs and the Applicant is seeking an assistance animal which does more tasks than seizure-alerting.[31] The Applicant also submitted that James and MMBX were relevant as these decisions addressed the broader principles to be applied in assessing whether assistance animals were reasonable and necessary.[32]
[31] Applicant’s Supplementary Written Closing Submissions dated 15 November 2024, at page 4 for example.
[32] Applicant’s Supplementary Written Closing Submissions pages 6 and 7.
I have had regard to each of the decisions. Broadly, I agree with the analysis in Kupke and QTBR that the literature does not currently support that seizure-alert dogs are effective and reliable. However, I also agree that the Applicant is seeking an assistance animal for more benefits than seizure-alerting only, and that an assessment of the circumstances for individual participants is required.
Is an assistance animal reasonable and necessary?
While I accept that the Applicant seeks an assistance animal for a range of benefits, it is also clear that seizure-detection and alerting is one of the benefits that is sought to be achieved. If seizure-alerting was the only role for an assistance animal, I would be concerned that reliance on an animal for this purpose would present an unreasonable risk to the Applicant’s welfare. If a seizure is not detected, and the Applicant is unable to commence use of their CPAP machine, the Applicant is at risk of serious injury or death. When the consequences of failing to detect a seizure are so high, the level of confidence in the risk mitigation strategy also needs to be at a very high level. Both the specific evidence before the Tribunal, from Matthew Wong for example, and the current evidence base in the literature, do not support a finding that sole reliance on an assistance animal for seizure-alerting would be safe for the Applicant.
I do not consider these risks necessarily lead to a conclusion that the provision of an assistance animal is likely to cause harm to the Applicant. If that were the case, the provision of an assistance animal would be precluded by operation of Rule 5.1 of the Support Rules which provides that a support will not be funded if it is likely to cause harm to the participant. In different circumstances, this is the conclusion that Deputy President Mischin reached at paragraph 173 of Kupke. For Mr Ives, there are additional measures in place that reduce this risk, being his ability to often self-identify seizure onset, the use of the pulse oximeter, and the high level of direct line-of-sight support. However, the uncertainty of the reliability of an assistance animal to detect seizures, and presence of these other measures, does reduce the value that the assistance animal offers.
As noted at paragraph 38 above, the Applicant has emphasised other benefits identified in the La Trobe report. This quote is from an earlier version of the report[33] and is not the version of the report which is referred to in the current Assistance Animal Guideline. This quote also specifically relates to studies of individuals with a mobility impairment. Further, while the report and literature review may have informed the development of the Assistance Animal Guideline, it is the guideline itself that decision-makers should have regard to. In respect of the Assistance Animal Guideline, I have had regard to the following statements on page 4:
We generally don’t fund medical alert animals, even though they can sometimes be seen as a type of assistance animal. This is because there’s currently not enough evidence about the effectiveness of these animals, having regard to current good practice.
For example, there’s currently very little evidence that epilepsy seizure dogs are an effective and reliable disability support. It’s not clear that an animal can effectively detect and warn someone of an epileptic seizure. The existing evidence base is weak, and the narrowness of existing research make it hard to draw clear conclusions about their effectiveness. [footnotes omitted]
[33] Howell, Bennett, Shiell Final Report to National Disability Insurance Agency: Reviewing Assistance Animal Effectiveness Literature review, provider survey, assistance animal owner interviews, health economics analysis and recommendations La Trobe University, School of Psychology and Public Heath dated 30 September 2016
I have considered that one of the objectives of the NDIS Act is that people with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals.[34] However, I do not consider that reliance on an assistance animal to detect and alert others to potentially life-threatening seizures is a reasonable risk.
[34] NDIS Act, section 4.
In respect of increasing independence, social interaction and study and work opportunities, there is little to suggest that an assistance animal will achieve these benefits for the Applicant. While these benefits connect well with the Applicant’s current goals, it is also clear that the Applicant will still require a support worker to accompany him for all community participation activities. In my view, a support worker can also signal to others that the Applicant has a disability and can ‘block’ unwanted interactions. While Mr Matthew Wong did indicate that an assistance animal may be able to alert a support worker of an impending seizure earlier then might be detected by a support worker alone, and that this could be helpful in ensuring the Applicant is in a safe location while in the community, in my view this is a relatively minor (and somewhat uncertain) benefit as compared with the cost of an assistance animal. If increasing social and economic participation was the only benefit sought from having an assistance animal, I would consider this to be a duplication of supports which would be precluded by Rule 5.1(c).
In respect of some the remaining benefits the Applicant seeks from an assistance animal, such as grounding, emotional support, and confidence, I consider that a pet could provide these outcomes. I note that the Applicant’s mother has stated that she has experience in training dogs and enjoys this activity. I would consider that the identified benefit of assisting with daily tasks may well be beyond a well-trained pet. However, again, this benefit is relatively minor as compared with the cost of an assistance animal.
At approximately $20,000 (plus ongoing maintenance) an assistance animal is not a minor expense. Taken together, the factors regarding the uncertainty of seizure-alerting, the duplication of other supports, and the possibility of a pet providing some similar outcomes, leads me to the conclusion that an assistance animal cannot be said to represent value for money for the Applicant.
I have also considered the principles set out in section 31 of the NDIS Act that the preparation of plans should so far as reasonably practicable: be directed by the participant; be underpinned by the right of the participant to exercise control over his own life; advance the inclusion and participation in the community of the participant with the aim of achieving his individual aspirations; and maximise the choice and independence of the participant. These principles, while relevant, do not overcome the need to meet the specific requirements in the Act and Rules.
Overall, I not satisfied that an assistance animal will: assist the Applicant in his social and economic participation; be value for money; or be effective and beneficial having regard to current good practice. The provision of an assistance animal does not meet the requirements of sections 34(1)(b), (c), or (d) and therefore is not a reasonable and necessary support under the NDIS Act.
Solar panels and battery
As outlined above, the new sections 10 and 34(1)(f) of the NDIS Act, along with the Transitional Rules, have the effect that certain supports are not NDIS Supports and therefore cannot be funded in a SPS. Schedule 2 of the Transitional Rules sets out ‘Supports that generally are not NDIS supports’. Item 1 in Schedule 2 includes a category ‘Day-to-day living costs ‑‑ accommodation and household’. Item 1(h) of this category states that the following are not NDIS supports:
electricity generators, solar panels, home batteries for power storage, hot water and gas systems
It is clear that the Applicant’s request for solar panels and a battery falls within this item. I do not see that the Tribunal has any discretion in relation to a supports which are not NDIS Supports.
As solar panels and home batteries for power storage are now specifically excluded from being NDIS Supports, the Tribunal cannot be satisfied that these supports are reasonable and necessary supports that will be funded in a statement of participant supports for the Applicant as required by section 34(1)(f) of the NDIS Act. I find that the Applicant’s request for solar panels and a battery must be declined.
For completeness, the Tribunal would note the discussion during the hearing of using smaller back-up batteries as a lower cost alternative. While the Applicant’s mother has advised that a back-up battery that was trialled did not perform as specified, the Tribunal would encourage the Applicant to continue to explore whether there are other suitable back-up battery systems. It is possible that back-up batteries could be effective and not require the larger outlay involved in a full solar panel and battery system.
Therapy recliner massage tilt chair
The Agency submits that the massage chair is also excluded by operation of the new section 10 and Transitional Rules. The Agency submits that this is the case because the chair:[35]
(a)is unable to be classed as ‘assistive products for personal care and safety’ as it is not furniture that has been ‘adapted or specifically made’ to be placed in or added to a participant’s home to help with movement, positioning and other safety needs for the purpose of Item 9(f) of Schedule 1;
(b)is ‘standard furniture, fixtures or fittings’ and not an NDIS Support under Item 1(j) of Schedule 2; and
(c)gives ‘massage that is not provided by an allied health professional’ which is not an NDIS support under Item 10(a) of Schedule 2.
[35] Respondent’s Submissions on the Effect of the Amended NDIS Act dated 25 October 2025, paragraphs 18 to 25.
In my view, the third of these submissions is correct. The Applicant is seeking the massage chair for its massage function stating:
Given the massage capability of the chair, muscle cramps and residual spasms from seizure activity will be lessened thereby increasing Tim’s functional capacity overall.[36]
[36] Applicant’s Response to Statement of Issues dated 28 November 2022, joint hearing bundle, A5, page 28.
The chair is not providing massage by an allied health professional and is therefore excluded from being a NDIS support.
If this is found to be incorrect, it is also my view that there is insufficient evidence to find that the massage tilt chair is likely to be effective and beneficial as required by section 34(1)(d) of the NDIS Act. The Applicant’s mother’s evidence at the hearing was that a trial of the chair had not been undertaken, in part, because the Applicant did not want to use the chair. While the Applicant’s mother expected that the Applicant would try to chair if instructed to do so, the Applicant’s apparent reluctance does not support a finding that the chair is likely to be effective.
In addition, at Page 8 of his report Matthew Wong concluded:
the Therapy recliner massage tilt chair has the potential to facilitate management in Timothy's post-seizure muscle fatigue and contractions. There is evidence to suggest that the massage functionality of the chair is promising, as evidenced by a study conducted by Chu et al. (2023), which found statistically significant increases in pressure pain threshold. The study verified the benefits of using a massage chair to alleviate neck and shoulder pain among office workers drawing some links to Timothy’s experience with seizures and the associated muscle contractions and pain relief. It is crucial to acknowledge the need for a trial to assess the chair's effectiveness specifically for Timothy would be required to clearly justify the benefits of a massage chair for post-seizure muscle fatigue, pain and contractions [Tribunal emphasis added].
Without a trial of the chair, I cannot be satisfied that it is effective and beneficial or represents value for money. Based on the current evidence, even if the chair could be considered a NDIS support, I could not be satisfied that it is a reasonable and necessary support.
DECISION
The request for an assistance animal, solar panels and battery, and therapy recliner massage tilt chair, are not reasonable and necessary supports that are to be included in the Applicant’s statement of participant supports. The decision of the Agency under review is affirmed.
Dates of hearing: 12 and 13 September 2024 Date final submissions received: 2 January 2025 Representative for the Applicant: Ms S Ball, Applicant’s Plan Nominee
Mr M A’Bell, People with a Disability AustraliaSolicitors for the Respondent:
Counsel for the Respondent:
Mr J Sime, Sparke Helmore Lawyers
Ms G Yates
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