Johnstone and National Disability Insurance Agency (NDIS) - [2025] ARTA 106

Johnstone and National Disability Insurance Agency (NDIS) [2025] ARTA 106 (17 February 2025)
Applicant:Heath Johnstone
Respondent: National Disability Insurance Agency
Tribunal Number: 2021/4617 and 2024/2616

Tribunal:General Member J Toohey
Place:Brisbane
Date:17 February 2025

Decision:1. The Tribunal sets aside the decisions under review and remits the matter for reconsideration in accordance with the direction that the statement of participant supports specifies that the reasonable and necessary supports include:
a)    An additional 18 days of Short-Term Accommodation for Respite per year;
b)    An additional 6 hours per week for a second support worker to assist with excursions; and
c)    Consumables funding for:
(i)    three two-way radios;
(ii)   wheelchair mounted fans;
(iii) spray bottles with electric heads;
(iv) medication roll packaging; and
(v) dietary supplements.

2. All other supports in the Applicant’s existing statement of participant supports, excepting any one-off assistive technology supports already used, are to be replicated pro‑rata from the date on which the supports in paragraph 1 are included in the Applicant’s statement of participant supports until the reassessment date.
3. The management of funding for reasonable and necessary supports is to remain the same as the management of funding for those supports as specified in the Applicant’s existing statement of participant supports.
4. The date the Respondent must reassess the Applicant’s plan is to be 12 months after the date on which the supports in paragraph 1 are included the Applicant’s statement of participant supports.

.................................[SGD]...................................
General Member Justin Toohey

Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – Statement of Participant Supports – Reasonable and Necessary support – Getting the NDIS Back on Track Amendments – meaning of ‘generally’ in Transitional Rules – Short-Term Accommodation for Respite – Home Automation – Use of supports that involve risk – SCHADS Award – Reimbursement for approved consumables
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
National Disability Insurance Scheme (Supports for Participants) Rules 2013
Cases
Brown and National Disability Insurance Agency [2024] AATA 3318
David and National Disability Insurance Agency [2018] AATA 2709
FFNR and National Disability Insurance Agency [2021] AATA 3890
Gelzinnis and National Disability Insurance Agency [2021] AATA 3970
Johnstone and National Disability Insurance Agency [2023] AATA 3632
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Munday and National Disability Insurance Agency [2018] AATA 355
National Disability Insurance Agency v KKTB, by her litigation representative CVY22 [2022] FCAFC 181
National Disability Insurance Agency v McGarrigle [2017] FCAFC 132
O'Hearn and National Disability Insurance Agency [2023] AATA 4141
Warwick v National Disability Insurance Agency [2024] FCA 616
Secondary Materials
NDIS Operational Guideline: Assistive Technology published 20 December 2023
NDIS Operational Guideline: Continence Support published 25 November 2024
NDIS Operational guideline: Disability-related health supports published 5 December 2024
NDIS Operational guideline: Nutrition supports including meal preparation published 13 October 2023
NDIS Operational guideline: Reasonable and Necessary Supports published 22 September 2024
NDIS Operational guideline: Short Term Accommodation or Respite published 24 June 2022
NDIS Operational guideline: Social and recreation support published 21 November 2024
NDIS Pricing Arrangements and Price Limits 2024-25 v1.3 published 1 October 2024 Social, Community, Home Care and Disability Services Industry Award 2010
Statement of Reasons
QUICK SUMMARY

As this this is a long decision, I am providing a quick summary. This summary does not replace the detailed reasons below. I have decided that the following supports should be added to the Applicant’s plan:
·An extra 18 days (a total of 60 days) of Short-Term Accommodation for Respite per year,
·An extra 6 hours per week for a second support worker to assist with excursions,
·Consumables funding for:
oThree two-way radios,
owheelchair mounted fans,
ospray bottles with electric heads,
omedication roll packaging, and
odietary supplements.
The amount of short-term accommodation for respite is less than was requested by the Applicant. I consider this amount is reasonable and necessary because of the other supports approved which aim to reduce carer burden. This amount is also greater than currently approved by the Agency. Additional hours are supported by professional opinion and are value for money compared with the level of support worker hours required if Mrs Johnstone is unable to continue to provide care for the Applicant. I do not consider that the partial concession made by Dr Waugh, or the capacity building alternatives suggested by Ms S Yates, mean that there are lower cost alternatives that achieve the same outcome.
The six hours for excursions are also less than the ten hours requested. I consider that six hours is a safer duration for these excursions based on the recommendations of Dr Waugh. Other than the approved supports above, I have decided that the remaining supports are not reasonable and necessary based on the information before the Tribunal. I won’t comment on each individual support in this summary but will cover some of the larger items.
I have concerns about the Applicant’s use of the XT4 power wheelchair to access more remote locations as this was inconsistent with the recommendations for his heart health and the need to stay close to medical facilities. Once this intended use is removed, the remaining benefits are reduced. A number of these benefits can also be achieved with the Permobil F5 power wheelchair, though to a lesser extent. I am not satisfied that these remaining benefits represent value-for-money.
I have also decided that the additional support worker hours for meal preparation is not reasonable and necessary. I am concerned that this support is unlikely to be effective. The approved dietary supplements are a better approach. If the Applicant wants to try to demonstrate the effectiveness of meal preparation, then he could consider using some of his additional support worker hours for excursions to trial this approach.
I have decided that home automation, including the front door, is not a reasonable and necessary support. The approved home modifications are intended to improve the Applicant’s ability to mobilise in his home. This should in turn allow the Applicant better access to the environmental controls and improved access through the widened door. Depending on the benefits achieved, and any further deterioration in the Applicant’s condition, the need for home automation can be reassessed in the future. At this stage, I do not consider that home automation is value-for-money.
Several of the requested consumable items are now prevented from being funded as they are not ‘NDIS supports’ under the new Transitional Rules. For other consumables, there was not enough information for me to be satisfied that these should be funded. The Applicant is entitled to reimbursement for approved consumables which have been purchase in the past. The period for potential reimbursement extends back to the start date of the original plan under review which was 14 January 2021.
DETAILED REASONS
The issue before the Tribunal is whether the certain supports are reasonable and necessary and should be included in the Applicant’s statement of participant supports (SPS) under sections 33 and 34 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).
The Applicant is a 57-year-old man who lives with his spouse in Cairns. He is passionate about engaging in outdoor activities such as kite-flying, wildlife photography and bushwalking. He is also a keen volunteer with the State Emergency Services (‘SES’). The Applicant lives with a complex combination of significant physical, psychosocial and medical impairments.
On 14 January 2021, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the Agency) approved a SPS. On 1 April 2021, the Applicant requested an internal review of the delegate’s decision. On 23 June 2021, the Agency varied its original decision. On 12 July 2021, the Applicant applied for a review by the Administrative Appeals Tribunal (AAT) under section 103 of the NDIS Act and section 25 of the AAT Act.
The matter was remitted to the Agency for reconsideration under section 42D of the AAT Act on 7 June 2022 and 2 November 2023. The November 2023 remittal was accompanied by detailed reasons from SM Buxton regarding whether a section 42D remittal creates a new plan. These detailed reasons are published in Johnstone.[1] Following this remittal, the Applicant sought a further review which became matter number 2024/2616. On 18 June 2024, the Tribunal ordered that both matters be heard together.
[1] Johnstone and National Disability Insurance Agency [2023] AATA 3632.
On 29 July 2024, the matter was constituted to me, and I proceeded to hear the matter on 16 to 24 September 2024. The Applicant represented himself with support from his spouse. The Agency was represented by Counsel, Genevieve Yates. As adjustments for the Applicant, the hearing was run over several days with a shorter duration per day and with the opportunity for frequent breaks. The hearing was also held by video so that the Applicant was able to attend from his home.
Following the hearing, both parties were provided with the opportunity to make written submissions addressing the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) (Back on Track Amendments) which commenced on 3 October 2024. Final submissions were received on 11 November 2024.
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 Amendments made significant changes to the NDIS Act and commenced on 3 October 2024. The new section 32A of the NDIS Act sets out that there are now two kinds of plans: being ‘new framework plans’ and ‘old framework plans’. The new section 32B provides for the making of rules for classes of participants that are to have new framework plans. The new section 32BA provides for giving 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 Amendments deals with the application of the amendments to the 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 the statement of participant supports included in an old framework plan should be approved or varied. I will therefore apply the amended considerations in sections 33, 34 and 35 during my decision-making.
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:
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).
Two notes were also added with section 34(1)(aa) which say:
Note: For the purposes of paragraph (aa):
(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b) a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
According to the allied health reports, the applicant is impacted by a range of complex ‘interrelated medical, physical, and psychosocial issues’.[2] These issues are extensive and I will not repeat all of them here. They include:
[2] Report of Ms McGregor, Occupational Therapist, 14 April 2024. Joint hearing bundle, page 846.
·Physical impairments related to motor vehicle accidents with additional degeneration of the spine and subsequent musculoskeletal injuries: thoracic vertebra fractures; lumbar spine dislocation; multiple disc bulges; spinal cord damage; and left knee damage.
·Medical conditions: particularly in relation to heart failure, with multiple and serious acute cardiac events (heart attacks) and chronic angina; and obstructive sleep apnoea.
·Psychosocial disabilities; especially ADHD, ASD, and depressive disorders. His symptoms have become more severe due to medication being ceased due to cardio toxicity. The resulting impacts include impaired executive function; difficulty with problem solving, attention and focus; impaired memory; rigid and literal thinking; hypervigilance and anxiety; fluctuating depression symptoms; and sensory integration issues e.g. with food tastes and textures.
Currently the Agency states that it:
… has determined that the Applicant has met the disability requirements for impairments arising from diagnoses of ‘other physical’, relating to a spinal injury, ‘other’ psychosocial disorder, major depressive illness and autism spectrum disorder.[3]
[3] Respondent’s Statement of Issues, Facts and Contentions, page 1154 of the Joint Hearing Bundle.
The Agency accepts that each of the requested supports satisfy section 34(1)(aa) on the basis that they each relate to the impairments which have met the relevant access criteria.[4] The Applicant agrees, and I am satisfied that this is the case.
[4] Respondent’s Submissions on National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) Act 2024 lodged 25 October 2025, paragraph 14. Other than those referred to in paragraph 21.
New section 34(1)(f) and transitional rules
The amendments also added section 34(1)(f) which requires that the support is an ‘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) an NDIS Support. Section 124 of the Back on Track Amendments states that the reference to rules made under section 10 includes rules made under section 138 of the Back on Track Amendments, 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 supports that are (and are not) NDIS supports.
25.The Minister has also made the 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 as well as the new version as amended.
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Support Rules) also remain in force and specify several matters that are not the responsibility of the NDIS to fund. The Agency submits that some of the supports in dispute are impacted by the Transitional Rules and I will return to this in considering these individual supports.[5] The Applicant does not agree and submits that:
… the use of the term “generally” in Schedule 2 (“Supports that generally are not NDIS supports”) implies that the items listed within this schedule are not subject to strict, inflexible adherence. The inclusion of “generally” demonstrates that while these items are typically not considered NDIS-funded supports, this is not an absolute rule as “generally” is “something happens or is used on most occasions but not on every occasion”. [emphasis in original][6]
27.At first glance, the headings in Schedule 2 which say ‘generally are not NDIS supports’ do seem to imply that there could be circumstances in which supports that are not generally NDIS supports could however be a support for a specific participant. However, the meaning of ‘generally’ in this context is informed by the rule-making provision in section 10(4) which states:
The National Disability Insurance Scheme rules may declare that a support is not an NDIS support for:
(a) participants or prospective participants generally; or
(b) a class of participants or prospective participants.
[5] Respondent’s Submissions on National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) Act 2024 lodged 25 October 2025, paragraph 12.
[6] Applicant’s Supplementary Written Submission lodged 11 November 2024, paragraph 102.
When read together with section 10(4), it is clear to that the term ‘generally’ is used in the sense of applying to all participants as compared to a class of participants, rather than in the sense of applying in ‘most circumstances’ or similar. Rule 5(2) of the Transitional Rule underscores this interpretation, stating that:
Supports that generally are not NDIS supports
(2) For the purposes of subsection 10(4) of the NDIS Act, a support covered by column 2 of an item in the table in clause 1 of Schedule 2 to this instrument is not an NDIS support for any participant (subject to subsection 10(6) of the NDIS Act) or prospective participant. [emphasis added]
Section 10(6) does provide some limited circumstances in which the CEO may determine that a support declared as not being an NDIS support could still be support for a participant (if it replaces an NDIS support and achieves the same or better result for the same or lower cost). These are described as ‘replacement support determinations’ and are dealt with in Part 3 of the Transitional Rules. A section 10(6) determination in not listed as a reviewable decision in section 99 of the NDIS Act. It is not clear whether the Tribunal on review can make such a determination. If it did so, it would need to be as an exercise of a power or discretion under section 54 of the ART Act, which states:
For the purposes of reviewing a reviewable decision, the Tribunal may exercise all the powers and discretions that are conferred on the decision-maker by an Act or an instrument made under an Act.

Neither party has submitted that the Tribunal could or should exercise such a power and I have not considered this issue further. I note that section 43 of the AAT Act, which is equivalent to section 54 of the ART Act, has been the subject of judicial guidance from the Federal Court.[7] While I am not expressing a view on the availability of section 10(6) to the Tribunal, I do consider that section 10(6) not being a reviewable decision lends some support to the interpretation that parliament intended to limit the discretion available to decision‑makers in respect of supports that have be listed in Schedule 2 of the Transitional Rules.
[7] See for example Commonwealth Bank Officers Superannuation Corporation Pty Ltd v CMR of Taxation [2003] FCA 794.
From this analysis,[8] it is my view that the Transitional Rules apply in a way which means that, if a requested support is listed in Schedule 2 as one of the supports that are generally not NDIS supports, the Tribunal is not able to include this support in a SPS. The Applicant’s submissions on this point are repeated in relation to several of the disputed supports. Having considered this issue here, I won’t repeat this finding in respect of the individual supports discussed below.
[8] I have included similar analysis in other recent matters dealing with the Transitional Rules.
New section 33(5)(g)
The new section 33(5)(g) requires decision-makers to have regard to whether section 46 (acquittal of NDIS amounts) was complied with in relation to any previous plan for the participant. As section 129 of the Back on Track Amendments applies this provision to old framework plans, it must be considered. However, section 133 states that:
Section 46 of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, applies in relation to:
(a) a participant who receives an NDIS amount, including because of subsection 46(1A) of that Act, on or after that commencement; or
(b) a person who receives an NDIS amount on behalf of a participant, including because of subsection 46(1B) of that Act, on or after that commencement;
whether the participant becomes a participant before, on or after that commencement.
Therefore, the new section 33(5)(g) only applies to the acquittal of NDIS amounts received after the commencement of the Back on Track Amendments. The parties did not make any submissions about the acquittal of such NDIS amounts. The consumables requested have previously been processed by the Applicant’s plan manager. At some stage, purchases will be subject to the new acquittal requirements. At this point in time, I do not have sufficient information to make any finding in relation to the acquittal of NDIS amounts received after 3 October 2024.
ISSUES
The issues before the Tribunal are whether the following are reasonable and necessary supports for the Applicant:
(b)Additional short-term accommodation (STA):
(i)for carer respite; and
(ii)to participate in State Emergency Service (SES) events;
(c)Additional support worker hours for:
(i)excursions;
(ii)SES weeknight meetings;
(iii)SES weekend training; and
(iv)meal preparation.
(d)An XT4 Powered Wheelchair, accessories and insurance;
(e)Home automation, including door automation and environmental controls;
(f)Additional support coordination hours; and
(g)A range of consumables including:
(i)an e-Ink Reader;
(ii)iPad;
(iii)subscription to ‘Spendable’ application;
(iv)subscription to ‘ChatGPT’ application;
(v)two-way radios;
(vi)continuous positive airway pressure (CPAP) mask and accessories;
(vii)wipes for pressure sores;
(viii)medication roll packaging;
(ix)enemas;
(x)face masks;
(xi)dietary supplements;
(xii)specialised umbrellas;
(xiii)wheelchair mounted fans;
(xiv)spray bottles and electric spray bottle heads;
(xv)other cooling aids;
(xvi)cooler bags for wheelchairs;
(xvii)straps and accessories for wheelchairs; and
(xviii)walking sticks.
At the start of the hearing, the Agency advised that several issues had been fully resolved, or partially resolved subject to provision of receipts. I have not included the matters that were fully resolved in the list of issues above. However, several of the consumable items listed above subsequently re-emerged as issues in dispute due to disagreements about reimbursement amounts. These items were not the subject of oral evidence or submissions at the hearing. On 1 October 2024, the parties confirmed that the consumable items not dealt with at the hearing could be determined without a further hearing and I have agreed to proceed on this basis.
OVERVIEW OF THE NDIS DECISION-MAKING FRAMEWORK[9]
[9] Parts of this overview have been included in other decisions.
Chapter 1, Part 2 of the NDIS Act sets the Act’s objects and principles including, for example, that the NDIS Act is to support the independence and social and economic participation of people with disability,[10] and that decision-makers are to have regard to the need to ensure the financial sustainability of the scheme.[11]
[10] Section 3(1)(c).
[11] 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,[12] and be underpinned by the right of the participant to exercise choice and control over his or her life.[13]
[12] Section 31(a).
[13] Section 31(g).
A participant’s plan must include a statement of the participant’s goals and aspirations[14] as well as a statement of participant supports that includes the reasonable and necessary supports that will be funded by the Agency.[15] 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,[16] 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.[17]
[14] Section 33(1).
[15] Section 33(2)(b).
[16] National Disability Insurance Scheme (Supports for Participants) Rules 2013.
[17] 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 Support Rules provide greater explanation of the application of the criteria in section 34. For example, in relation to assessing value for money, 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.[18] The relevant operational guidelines are:
·Assistive Technology published 20 December 2023 (Assistive Technology Guideline);
·Continence Support published 25 November 2024 (Continence Guideline);
·Disability-related health supports published 5 December 2024 (Health Supports Guideline);
·NDIS Pricing Arrangements and Price Limits 2024-25 v1.3 published 1 October 2024 (NDIS Pricing Arrangements);
·Nutrition supports including meal preparation published 13 October 2023 (Nutrition Guideline);
·Reasonable and Necessary Supports published 22 September 2024 (Supports Guideline);
·Short Term Accommodation or Respite published 24 June 2022 (STA Guideline); and
·Social and recreation support published 21 November 2024 (Recreation Guideline).
[18] 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.[19] I will not list the items provided in this very large bundle of documents (five volumes with 2,604 pages). Some of the documents of particular significance to the issues in dispute included:
[19] The page numbering in the hearing bundle index is adopted throughout these reasons.
(a)the ‘T-documents’ and supplementary T-documents;[20]
[20] Which are all the records lodged by the Agency as being relevant to the decision under review as required by section 37 of the AAT Act.
(b)a report from Dr Kevin Ng, cardiac electrophysiologist, dated 31 July 2020;
(c)occupational therapist letters and reports from:
(i)Deborah Ford, dated 30 and 31 November 2023;
(ii)Janette McGregor, dated 7 May 2022, 24 July 2023, 14 and 15 April 2024, and 13 June 2024;
(iii)Joel Widmer, dated 28 November 2023 and 1 May 2023;
(iv)Susan Yates, dated 4 December 2022 and 3 April 2024;
(d)reports from Dr Stacey Waugh, general practitioner, from 15 November 2019 to 18 April 2024;
(e)quotes from Ausnorth Building and Construction, dated 25 July 2023, and Northern Connections, dated 28 November 2023;
(f)statements from the Applicant’s spouse, from October 2021 to June 2024;
(g)a letter of support from Lindsay Payne, Owner/Operator of Disability Support & Tours Queensland, dated 1 December 2023;
(h)dietician reports from Julietta Close in August 2021 and January 2022, and Eleni Georgiou provided on 1 July 2024;[21]
(i)letters from David Harvey, clinical psychologist, dated 1 March 2021, 29 August 2021 and 9 February 2022; and
(j)a support coordinator letter from Suzette Edge dated 10 September 2024.
[21] Date confirmed in oral evidence, Day 4.
In addition, the Tribunal allowed two items, which were not included in the joint hearing bundle, to be added as individual exhibits by the Agency on the first day of the hearing, being:
(a)a plan approved on 13 September 2024 and cover email; and
(b)a plan funding breakdown and cover email, dated 15 September 2024.
The Applicant sought to add a document on the final day of hearing titled: ‘Annexure A to Statement of Heath Johnstone dated 23/09/2023’. This document was a table of locations that the Applicant would like to access using the XT4 wheelchair, travel times and distances to the nearest ambulance service or hospital, derived from Google Map searches conducted by the Applicant. This document was not added as evidence before the Tribunal, however the Applicant was able to display and ‘speak to’ the table during his closing submissions.
The Tribunal also had the benefit of written submissions from the parties. The Applicant’s written submissions were extensive (338 pages). At the hearing, oral evidence was received from:
(a)the Applicant;
(b)the Applicant’s spouse, Catherine Johnstone;
(c)Dr Stacey Waugh, general practitioner;
(d)Deborah Ford, occupational therapist;
(e)Eleni Georgiou, dietician;
(f)Suzette Edge, support coordinator;
(g)Janette McGregor, occupational therapist; and
(h)Susan Yates, occupational therapist.
CONSIDERATION
Applicants’ goals and aspirations
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. On 2 October 2024, The Tribunal was provided with a copy of the Applicant’s most recent plan which describes the Applicant’s goals as:
·Your goal: During this plan, I would like to actively participate in community and social activities, e.g. SES, neighbourhood watch, public events.
·How will you work towards this goal? I will work with my supports to attend SES gatherings and training; neighbourhood watch and other outings. I will explore activities of interest further regarding photography and wildlife and will join groups.
·Your goal: During this plan, I would like to maintain and improve my independence with activities of daily living and ensure my wife Catherine is not solely responsible for this.
·How will you work towards this goal? I will be supported to perform the Activities of Daily Living (ADLs) as independently as possible. I will engage in therapies, day programs and other activities that promote independent skill building. I will have support workers to assist me when Catherine needs to or wants to do something on her own to get a break. I will have supports to help me clean and maintain a tidy home as Catherine does not have time or energy for this due to her own health issues and working full-time and supporting me at other times.
·Your goal: During this plan, I will have access to allied health specialists and equipment to improve my physical and mental wellbeing.
·How will you work towards this goal? I will work with my support coordinator to connect with appropriate allied health professionals and work with my staff and informal supports to implement strategies to achieve this goal. I will have access to an OT to help me problem solve and streamline processes at home and in the community (e.g. SES).
·Your goal: During this plan, I would like to pursue my interests and hobbies, especially being active outdoors independently of my wife/ informal supports.
·How will you work towards this goal? I will work with my supports both formal and informal to explore and attend activities of interest. By working on my health so I am able to attend more events and activities such as SES.
I have had regard to these goal and aspirations and will refer to these as relevant to the consideration of individual supports below.
Previous plans
For completeness I note that the parties have at times made submissions regarding section 33(5)(f) and the operation and effectiveness of previous plans. For example, the Applicant points to his previous expenditure on consumables to show that the $3,000 budget currently approved by the Agency will be insufficient.[22] The Applicant also highlights that previous attempts at shorter durations, or less frequent stays, in STA for respite have been ineffective.[23] The Agency questioned the utility of meal preparation in circumstances where the Applicant and Mrs Johnstone ate meals together at a restaurant and said that this demonstrated that the previous plans had operated effectively.[24] I have had regard to these and similar submissions on the operation and effectiveness of previous plans.
[22] Joint Hearing Bundle, pages 1340 and 2256.
[23] Joint Hearing Bundle page 1263.
[24] Oral closing submissions, Day 7.
Support (a)(i): Additional short-term accommodation (STA) for carer respite
The Applicant seeks 84 days per year of STA to provide his spouse, Mrs Johnstone, with respite. Prior to the hearing the Agency agreed to fund 42 days per year. In summary, the Applicant submits that:
There has been a significant change of circumstances in our situation, as Catherine's health has alarmingly deteriorated due to the compounded effects of Fibromyalgia and Chronic Fatigue Syndrome, exacerbated by severe burnout from a caregiving burden far beyond her capacity. This concerning development underlines the urgent need for more extensive Short-Term Accommodation (STA) supports. The intense physical and emotional strain she endures daily, juggling her health challenges with the relentless demands of caregiving, is unsustainable and poses a serious risk to her well-being. This escalation in her health condition is a stark reminder of the critical need for additional support, not only to preserve her health but also to ensure the continued quality care that I require. The provision is crucially necessary to prevent further decline in Catherine’s health and to uphold our shared quality of life. Because of this significant change, experts such as OT Janette McGregor and Dr Stacey Waugh have re-evaluated our needs and re‑assessed accordingly. Catherine’s latest Carer Impact Statement also explains the reasons for our need for this significant support.[25] [emphasis in original]
[25] Applicant’s Written Submission, August 2024, page 1253 of the Joint Hearing Bundle.
Ms McGregor’s 24 July 2023 report focuses on this issue and recommends 1 week per month of STA with 24/7 1:1 formal support. In arriving at this recommendation, Ms McGregor makes several observations including that:
·Assessments using the Zarit Burden Interview indicate a severe burden and high risk of carer burnout;[26]
·Outside of the 10–14 hours per day of formal supports, Catherine is the Applicant’s sole carer which requires 100% vigilance due to the unpredictability of his cardiac events;[27]
·Catherine undertakes household cleaning tasks as the Applicant’s formal support must remain with him;[28]
·Catherine also completes many NDIS administration tasks as support coordination hours are inadequate; [29]
·3 nights per month of STA is insufficient for Catherine’s recovery; and,
·preparing for the Applicant to attend respite can take up to a week and is an exhausting task.[30]
[26] Page 527 of the Joint Hearing Bundle.
[27] Page 528 of the Joint Hearing Bundle.
[28] Page 530 of the Joint Hearing Bundle.
[29] Pages 529 and 530 of the Joint Hearing Bundle
[30] Page 530 of the Joint Hearing Bundle.
In conclusion, Ms McGregor states that:
the current situation is beyond what is reasonable for an individual to cope with … there is a very high risk that Catherine’s [health] will deteriorate, and she will not be able to provide ongoing informal care. The situation has the potential for [sic] become a crisis and lead to inappropriate institutionalisation or the need for increased NDIS funding for 24/7 in-home support … which does not represent value for money.[31]
[31] Page 531 of the Joint Hearing Bundle.
In agreeing with Ms McGregor’s recommendation, Dr Waugh (who was, at the time, both Mrs Johnstone’s and the Applicant’s treating GP) further observes that the Applicant:
is very aware of and effected [sic] by Catherine’s depressed mood and physical and mental exhaustion. Heath’s relationship with his wife is fundamental to his wellbeing. The breakdown of his relationship would be highly detrimental to Heath’s health and would also necessitate an inordinant [sic] increase in his support needs.[32]
[32] Report of 26 July 2023, page 533 of the Joint Hearing Bundle.

This conclusion is also supported in Dr Waugh’s letter dated 18 April 2024, in which she states:
Catherine suffers from chronic fatigue syndrome and fibromyalgia which leads to persistant [sic] fatigue and body pain aggravated by stress. These conditions are permanent and medical treatments trialed [sic] previously have failed. The only way to manage this condition is to minimise stress and allow for adequate rest. The physical and mental burdens that Catherine is trying to manage are beyond what she can cope with which has lead [sic] to deterioration.[33]
[33] Page 902 of the Joint Hearing Bundle.
In her statement, Mrs Johnstone describes trialling two nights and three nights per month of respite in 2022 and how these trials were not successful due to insufficient recovery time needed whilst also catching up on housework and administration.[34] With regards to trailing seven nights per month, Mrs Johnstone said that this:
does appear to be much more beneficial than 2 or 3 nights, as it allows for a full cycle of a working week as well as a full weekend and I could pace myself throughout the 7 days, rather than having to squeeze everything in to only 2 days. This allows me to go to bed early or sleep in if I need to, without sleep being interrupted by Heath’s needs in my caring role.[35]
[34] Catherine Johnstone’s Statement for the period 5 August 2023 to 21 June 2024, page 967 and 968 of the Joint Hearing Bundle.
[35] Page 968 of the Joint Hearing Bundle.
The Agency relies on the supplementary report of Ms S Yates[36] dated 3 April 2024 in which she concludes:
It is acknowledged that Mrs Johnstone is experiencing significant issues associated
with the care of her husband. High levels of in home and STA support is included in Mr Johnstone’s current NDIS plan. Seven days of short term accommodation per month is not consistent with the NDIS operational guidelines and is not considered to be reasonable or necessary on an ongoing basis.
It is unclear whether Mr Johnstone is receiving capacity building supports such as
psychological and occupational therapy interventions which would assist him to
understand the impacts of his disability and behaviours on his wife and to develop
strategies to become more independent and reduce his dependence on her. These
interventions would be recommended.
Given the level of stress and the required organisation for Mr Johnstone to attend weekend STAs on a monthly basis, it may be more appropriate to consider a longer period of STA respite on a less frequent basis for example 4 days of respite every six weeks or 6 days every 8 weeks instead of 3 days every four weeks.[37]
[36] Initial used to avoid confusion with Counsel having the same surname.
[37] Pages 1118 and 1119 of the Joint Hearing Bundle.
The Agency submits that, as the Applicant has not trialled a longer period of STA on a less frequent basis, and that the Applicant has funding for the recommended capacity building supports, the requested additional STA is not reasonable and necessary, and is not value‑for‑money.[38] The Agency acknowledged that Dr Waugh considered Ms S Yates’ recommendation for capacity building to be ‘unrealistic’ but submitted that the basis for Dr Waugh’s conclusions on this issue was unclear.[39]
[38] Respondent’s Statement of Issues, Facts and Contentions, pages 1161 and 1162 of the Joint Hearing Bundle.
[39] Page 1162 of the Joint Hearing Bundle.
In reply, the Applicant raised numerous concerns with Ms S Yates’ opinion, including that her opinion was based on a single assessment and should not be preferred over his long‑term treating professionals. The Applicant also outlined the capacity building supports that he and Mrs Johnstone had been actively engaged in and submitted that such capacity building supports would not address the underlying nature of their chronic conditions.[40]
[40] Applicant’s Written Submission, August 2024, pages 1274 to 1276 of the Joint Hearing Bundle.
The Applicant also submitted that this frequency and duration of respite is better value for money when compared with the possibility that Mrs Johnstone can no longer care for the Applicant, which would then require the NDIS to fund 24/7 1:1 support workers. In the cost comparison in the Applicant’s submissions, this level of support worker funding would cost around $400,000 per year.[41] This figure was not contested by the Agency.
[41] Join Hearing Bundle, page 1283.
During oral submissions, the Applicant drew the Tribunal’s attention to page 2474 of the Joint Hearing Bundle, which was a table summarising his STA stays between February 2023 and August 2024. The Applicant submitted that this demonstrated the range of nights stayed and frequency between stays that had been tried over this period. During his oral evidence, the Applicant conceded that this table did not show that the Applicant had trialled longer periods of respite on a less frequent basis. The Applicant also stated that he had undertaken an intensive course of Dialectical Behaviour Therapy (DBT) with his Psychiatrist Dr Trott.[42]
[42] Oral evidence, Day 2.
In her oral evidence, Mrs Johnstone expanded on the difficulties with preparing for STA, including that: support workers need her to explain the packing list and how the items are to be properly packed and, if items are missed or incorrectly packed, this becomes traumatic for her and the Applicant. Mrs Johnstone also stated that, during the Applicant’s seven‑night respite stay, it was usually around day five when she begins to feel some recovery from her carer burden. In terms of the duration between respite, Mrs Johnstone said that periods greater than four weeks resulted in her being too exhausted, such that seven days respite was not enough. In response to questions from the Agency, Mrs Johnstone could not recall if they had trialled longer periods, less frequently, such as five or six days every six weeks. Mrs Johnstone agreed that, if the Applicant commenced respite on a weekday or Saturday, that she would not need to be present while formal supports assisted with the packing.[43]
[43] Oral evidence, Day 3.
In her oral evidence, Dr Waugh stated that she had been treating Mr and Mrs Johnstone for several years and expanded on the deterioration of Mrs Johnstone’s health in the past two years with worsening fatigue, fibromyalgia and depressive symptoms. Dr Waugh described Mrs Johnstone as in a chronically and severely depressed state most of the time, with panic attacks and insomnia. During questions from the Agency, Dr Waugh agreed that, if Mrs Johnstone had additional hours to herself in the evening, then the frequency of respite could be every second month. Dr Waugh also explained that: the Applicant’s ADHD was no longer able to be medicated due to his heart condition; and that the Applicant’s long‑standing behaviours associated with his ADHD and ASD were not likely to change through further capacity building supports.[44]
[44] Oral evidence, Day 3.
The parties did not have many questions for Ms McGregor about respite. Ms McGregor did explain that her opinion was informed by her experience both as an occupational therapist and registered nurse. Ms McGregor described a level of hypervigilance as contributing to Mrs Johnstone’s carer fatigue. Ms McGregor did not agree that less frequent respite would be sufficient if Mrs Johnstone had a few more hours in the evening without the Applicant or support workers in the house. In Ms McGregor’s opinion, this was due to the anticipation of the Applicant’s return and need to settle him back into the evening routine.[45]
[45] Oral evidence, Day 5.
Ms S Yates explained that the capacity building supports she would recommend included cognitive behaviour therapy and behaviour management planning with a mental health occupational therapist or psychologist. Ms S Yates confirmed her opinion that the requested respite was excessive. I offered Ms S Yates an opportunity to explain the basis for her disagreement with the opinion of Dr Waugh and Ms McGregor regarding the need for seven days respite per month, however Ms S Yates did not expand on the basis for her view.[46]
[46] Oral evidence, Day 6.
I am not satisfied that capacity building interventions are a lower‑cost alternative that would achieve similar outcomes. As I discussed in the decision of Brown,[47] where the Agency is submitting that there is an alternative that will achieve the same outcome at a substantially lower cost, the Agency should seek to provide information in support of this contention. Without this information, the Tribunal might not be able to be satisfied that the availability of this alternative means that the requested support is not value for money. In this instance, the Applicant has provided information about his previous engagement with capacity building and evidence from his treaters in support of his contention that capacity building is not likely to reduce the demands on Mrs Johnstone.[48] I am not persuaded that Ms S Yates’ opinion should be preferred over those of the Applicant’s treaters.
[47] Brown and National Disability Insurance Agency [2024] AATA 3318, in particular paragraph 54.
[48] See for example Dr Waugh, page 903 of the Join Hearing Bundle.
The Agency does not submit that STA is excluded under the Transitional Rules but does observe that it is a matter for the Tribunal to assess the relevant NDIS Act provision and rules in its decision.[49] Schedule 1, Item 5(b) states that ‘supports for short term accommodation and respite’ are NDIS supports unless otherwise provided. STA for respite is clearly contemplated as an available support in the STA Guideline, which states that:
·Short Term Accommodation funding can be used for respite to support you and your carers. This gives your carers a short break from their caring role.[50]
·Usually, we fund up to 28 days of Short Term Accommodation per year. You can use your Short Term Accommodation funding flexibly. For example, you might want to use it in a block of up to 14 days at a time or for one weekend a month.[51]
·We’ll consider the risk to you and your family’s wellbeing if they continue to support you (without Short Term Accommodation). We also look at how the support provided by your family and networks affects your independence. We compare this to the independence and opportunities Short Term Accommodation may provide.[52]
[49] Respondent’s Submissions on National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) Act 2024 lodged 25 October 2025, paragraph 13.
[50] Short Term Accommodation or Respite, page 1, or page1583 of the Joint Hearing Bundle.
[51] Page 1584 of the Joint Hearing Bundle.
[52] Pages 1586 and 1587 of the Joint Hearing Bundle.
I do not agree with Ms Yates’ opinion that the seven days of respite per month is inconsistent with the STA Guideline and therefore not reasonable and necessary. In my view, the STA Guideline should not be applied rigidly and is intended to retain decision-making discretion to deal with individual circumstances. This would appear to be acknowledged by the Agency’s agreement to fund 42 days of STA per year.
In closing submissions, the Agency emphasised what they considered to be a significant concession by Dr Waugh during the hearing. This concession was said to be that Dr Waugh’s opinion on STA could change if Mrs Johnstone usually had two to three hours to herself in the afternoon/evening after she returned home from work. The Agency submitted that Dr Waugh agreed, if this were the case, she may recommend that the Applicant attend respite around every eight weeks. The Agency further submitted that Mrs Johnstone’s evidence supported that she did usually have a few hours to herself most afternoons/evenings when the Applicant was flying kites at the esplanade with a support worker. I have reviewed the recordings from the hearing and do not agree that Mrs Johnstone said that she had a few hours to herself most afternoons/evenings. Mrs Johnstone’s evidence was that this depended on the weather, how early it got dark, and whether she had to work later. Based on this, the hypothetical that was put to Dr Waugh was not a realistic description of how frequently Mrs Johnstone had time to herself. In my view this reduces the weight to be given to Dr Waugh’s concession. However, I still consider that some weight should be given to Dr Waugh’s concession.
Throughout this proceeding there have been many supports that have been agreed upon by the Agency, or which are included in this decision, which aim to reduce the carer burden on Mrs Johnstone. These include extra support worker hours on weekends; 140 hours of buddy shifts for support worker training; additional support coordination hours; two‑way radios; additional support worker hours for excursions and weeknight SES meetings; medication roll packaging; home modifications; and vehicle modifications. In combination, these supports go some way to reducing carer burden on Mrs Johnstone, and therefore also reduce the frequency of respite required.
On balance, with the additional supports above, I consider that 60 days of STA for respite per year is reasonable and necessary. The equates to seven days of respite every six weeks or so. I am satisfied that STA for respite is necessary to address needs arising from impairments that meet the disability requirements.[53] STA for respite will assist the Applicant to achieve his goal of improved independence and reduced responsibility for Mrs Johnstone.[54] The respite will improve Mrs Johnstone’s ability to assist the Applicant with his social and economic participation.[55] This represents value-for-money given the benefits achieved and the higher support worker cost that would be required if Mrs Johnstone is unable to continue to care for the Applicant.[56] I am not satisfied that shorter stays or reduced frequency are lower‑cost alternatives that achieve the same outcomes.[57] The benefits and effectiveness of STA for respite are supported by the Applicant and Mrs Johnstone’s lived experience as well as appropriate professional opinions.[58] This support specifically accounts for the level of care that is reasonable for Mrs Johnstone to provide.[59] STA for respite is an NDIS support under the Transitional Rules.[60] I consider that STA for respite is most appropriately funded by the NDIS and not more appropriately funded by other general support services.[61]
[53] NDIS Act, section 34(1)(aa).
[54] Section 34(1)(a).
[55] Section 34(1)(b).
[56] Section 34(1)(c).
[57] Rule 3.1(a) of the Support Rules.
[58] Section 34(1)(d).
[59] Section 34(1)(e).
[60] Section 34(1)(f) and section 10 as recently amended.
[61] Section 34(1)(f) prior the Getting the NDIS Back on Track Amendments.
Support (a)(ii): Additional STA for SES events
The Applicant also seeks STA for four Saturdays and three Sundays per year to attend SES full‑weekend events. The Applicant says that these are scheduled events which include joint exercises in which the Applicant plays a role in the emergency management centre. This STA is requested in addition to respite as it is difficult to coordinate with the respite STA and the short duration does not provide Mrs Johnstone with sufficient respite.[62] In his submissions, the Applicant also refers to the decision in David[63] in which the Tribunal found that funding for airplane tickets for a carer to attend interstate sports events with Mr David twice a year was a reasonable and necessary support.
[62] Applicant’s Written Submission, August 2024, Joint Hearing Bundle, page 1332.
[63] David and National Disability Insurance Agency [2018] AATA 2709, Joint Hearing Bundle, page 1332.
The Agency does not submit that STA for this purpose is excluded under the Transitional Rules but does submit that it is a matter for the Tribunal to assess the relevant NDIS Act provision and rules in its decision.[64] Item 4(o) in the category ‘Day-to-day living costs—Lifestyle’ of Schedule 2 of the Transitional Rules states that the following is generally not NDIS supports:
accommodation to attend or participate in work, study, music, theatre, cinema, sporting events or conferences, or any other social, business, private, public, formal or informal event.
[64] Respondent’s Submissions on National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) Act 2024 lodged 25 October 2025, paragraph 13.
In my view, the Applicant’s request for STA to participate in these SES weekend events does fall within this item in the Transitional Rules and is now excluded from being funded in the Applicant’s SPS. These rules were not in place when the Tribunal arrived at its conclusions in David.
Support (b)(i): Additional support worker hours for excursions
The Applicant seeks an additional ten hours per week for an extra support worker to assist with excursions in his modified van.[65] In summary, the Applicant submits that an extra support worker is required for these outings as they usually involve more demanding outdoor activities. The Applicant says that the challenges of these activities increase the need for: manual handling (for example, when his wheelchair becomes stuck in uneven terrain); continued supervision while other excursion tasks are completed; one person to drive and another to assist the Applicant during the drive; and assistance with physically demanding activities such as kite flying.
[65] Applicant’s Written Submission, August 2024, page 1304 of the Joint Hearing Bundle.
These needs are supported in letter from Lindsay Payne, of Disability Support & Tours Queensland, in which they describe how two workers have been required to meet the Applicant’s needs as well as to ensure support worker safety and breaks.[66]
[66] Letter of Support, Lindsay Payne, owner/operator of Disability Support & Tours Queensland, dated 1 December 2023, page 707 of the Joint Hearing Bundle.
The Agency submits that there is no clinical justification for greater than a 1:1 support worker ratio. The Agency relies on the report of Ms S Yates, in which she states:
Medical clearance from Mr Johnstone’s cardiologist to participate in activities that are located in a remote locations [sic] over a 10 hour period in the tropical heat and including consideration of the safety of his support workers would be required.[67]
[67] Joint Hearing Bundle, page 1122.
Alternatively, the Agency also submitted that provision of 2:1 support may pose a risk to the Applicant, or his support workers, and ought not be funded pursuant to rule 5.1(a) of the Support Rules.[68]
[68] Respondent’s Statement of Issues, Facts and Contentions, pages 1165 and 1166 of the Joint Hearing Bundle.
In reply, the Applicant relies on Dr Waugh’s opinion that:
Heath’s travel to remote areas is very limited. When he does travel to these areas, Heath travels with support carers who are all trained in how to respond to Heath’s medical needs. He also has access to medical equipment/ medication to deal with his usual complaints. Heath always has access to telephone communication nearby wherever he goes.[69]
[69] Page 903 of the Joint Hearing Bundle.
I would also note the opinion expressed by Ms S Yates that the use of the Applicant’s current Permobil F5 Corpus electric wheelchair in more rugged terrains is not recommended and that:
The combined weight of Mr Johnstone and his wheelchair would be in the vicinity of 300 kg. If he uses the wheelchair in a manner or on surfaces for which it has not been designed as described in the user manual, it would be unsafe for one or two support workers to physically assist him without appropriate equipment.[70] [emphasis added]
[70] Supplementary Report of Susan Yates, Occupational Therapist, dated 3 April 2024, page 1123 of the Joint Hearing Bundle.
Ms S Yates further stated that:
Lower cost alternatives: If medical clearance is provided for Mr Johnstone and his support workers to participate in these types of activities, lower cost alternatives could include less frequent participation, shorter excursions or closer locations if the environments in which he uses his electric wheelchair are safe.[71]
[71] Page 1124 of the Joint Hearing Bundle.

With regards to the Applicant’s heart condition, Dr Ng reported that:
Mr Johnstone suffered a life-threatening acute myocardial infarction in December of 2018 which has left him with significant functional disabilities. [He] suffers with severe, debilitating chest pain which has a marked impact on his exercise tolerance. While this does fluctuate on a day-to-day perspective, his poor coronary artery disease status means that he is likely to continue to experience chest pains even with modest exertion. His comorbid issues related to his anxiety, ADHD and back pain significantly exacerbate the situation and on certain days, he is unable to carry out simple activities of daily life (such as walking around the house, or around a shopping centre) without experiencing chest discomfort, which if left untreated, could result in further myocardial injury.[72]
[72] Report of Dr Kevin Ng, cardiac electrophysiologist, dated 31 July 2020, page 242 of the Joint Hearing Bundle.
In her oral evidence, Mrs Johnstone provided an example of a kite-flying excursion to Port Douglas in which the Applicant was accompanied by herself and a single support worker. Mr Johnstone described this as an exhausting and extremely stressful day given the amount of equipment that needed to be carted and set-up while also ensuring the Applicant was monitored and his temperature regulated.[73]
[73] Oral Evidence, Day 3.
When asked about the risks to the Applicant’s heart health when participating in outdoor activities, Dr Waugh responded that:
He certainly would have more episodes, but the thing is that he needs to live his life. You’ve got to think about his mental health as well and the fact that these are terminal conditions. Someone with his stage of heart failure – or anyone with heart failure, there’s a 50 per cent mortality in five years after the diagnosis. He needs to be able to be living his life.[74]
[74] Oral evidence. Day 3.
This was the first time the Applicant had heard his heart condition described as being ‘terminal’ and it was understandably a distressing part of the hearing process and required a break. Dr Waugh also said that the survival rate for people with the Applicant’s level of heart failure was around 30% after 10 years, depending on an individual’s co-morbidities.
Dr Waugh was comfortable with the Applicant participating in outdoor activities with a support worker assisting as they are trained in being able to assist with postural changes and to administer his nasal spray medication (which is effective in most instances). This was on the basis that the Applicant’s condition is currently stable. Dr Waugh advised that the Applicant sees his cardiologist at least twice a year and uses Holter monitors. However, Dr Waugh also would not recommend that he go into remote areas without reliable communications or which were more than 30 to 60 minutes away from medical facilities.[75]
[75] The preceding two paragraphs summarises Dr Waugh’s oral evidence, Day 3.
Rule 5.1(a) of the Support Rules states that:
5.1 A support will not be provided or funded under the NDIS if:
(a) it is likely to cause harm to the participant or pose a risk to others …
The Applicant drew my attention to the Tribunal’s decision in O’Hearn in which the Tribunal said:
Rule 5.1(a) of the Supports Rules provides that a support will not be provided or funded under the NDIS if ‘it is likely to cause harm to the participant or pose a risk to others’. The parties agreed that the word ‘likely’, in the context of rule 5.1(a), should be understood as meaning ‘more probable than not’, that being a greater than 50 per cent chance of it occurring.[76]
[76] O’Hearn and National Disability Insurance Agency [2023] AATA 4141, paragraph 117.
I agree with this interpretation. I would observe here that Dr Ng’s report, mentioned above, indicates that the Applicant’s significant heart disease presented in 2018 and is impacted by his co-morbidities. Combined with Dr Waugh’s evidence regarding the mortality rates for individuals with the Applicant’s level of heart disease, I consider that the Applicant participating in physical activities for extended periods of time in hot and remote environments is likely to cause harm to the Applicant or pose a risk to others.
However, this does not lead me to the conclusion that an extra support worker for excursions should be prevented from being funded in the Applicant’s SPS. From Dr Waugh’s evidence, I accept that the Applicant has medical clearance to participate in shorter and less remote excursions. An extra support worker is only likely to cause harm or pose a risk to others if they are used for the Applicant to access more remote and rugged areas. An extra support worker is still advisable for shorter excursions as it is important for the Applicant to be able to be supervised and medically assisted by one support worker while another support worker is driving the modified vehicle, or making trips back to the vehicle for the Applicant’s equipment. In this way, an extra support worker is mitigating risks of harm rather than being likely to cause harm.
While this support is not precluded by Rule 5.1(a), the other requirements in the NDIS Act and Rules still need to be satisfied for the support to be considered reasonable and necessary. I note that Schedule 1, Item 27 of the Transitional Rules states that ‘Supports that assist a participant to take part in community, social, cultural and civic activities’ are NDIS supports unless otherwise provided.
The Applicant’s passion for outdoor activities was very clear from his evidence. I would recommend that he follow Dr Waugh’s advice and limit these excursions to shorter and less remote trips. This does reduce the need for, and value of, a ten-hour excursion per week. Consistent with Dr Waugh’s recommendations,[77] I consider that a second support worker for six hours per week is reasonable and necessary. The second support worker is necessary to address needs arising from impairments on these excursions. These needs are supported by the Applicant and Mrs Johnstone’s lived experience and from a service provider familiar with the Applicant’s requirements.[78] The second support worker assists the Applicant in his goals of maintaining his wellbeing, reducing carer burden and participating in an active lifestyle.[79] At approximately $20,000 per year, the second support worker is a substantial cost, but I am satisfied that this represents value-for-money relative to the significant benefits achieved in terms of the Applicant pursuing his keen interest in outdoor activities.[80] These additional hours could also be used flexibly for the Applicant to attend SES training courses discussed below. I do not consider that there are lower cost alternatives that achieve the same outcome.[81] The support worker is an NDIS support under Schedule 1, Item 27 of the Transitional Rules.[82] The second support worker is most appropriately funded under the NDIS and not more appropriately funded under other general systems of support.[83] Funding for a second support worker for six hours per week to assist with social and community participation is a reasonable and necessary support to be included in the Applicant’s SPS.
[77] Oral evidence, Day 3.
[78] NDIS Act, section 34(1)(aa) and (d).
[79] Sections 34(1)(a), (b) and (e).
[80] Section 34(1)(c).
[81] Support Rules, Rule 3.1(a).
[82] Sections 10 and 34(1)(f) as amended.
[83] Section 34(1)(f) prior to amendment.
Support (b)(ii): Additional support worker hours for SES weeknight meetings
The Applicant also seeks a support worker from 6:00 pm to 10:00 pm on Wednesdays to take part in local SES meetings. The Applicant requests that these be included at the evening rate. In the cover email to the ‘plan funding breakdown’ document lodged by the Agency on 15 September 2024, the Agency advised that two hours per week at the weekday evening rate had been added to the Applicant’s plan. This means that the issue that remained in dispute at the hearing was whether a further two hours of support worker time, at the evening rate, to attend these SES meetings was reasonable and necessary.
During oral evidence and submissions it was clarified that the Applicant has a formal support worker until 8:00 pm at the weekday, daytime rate. The Agency submits that the additional two hours at the evening rate is sufficient to cover the 8:00 pm to 10:00 pm component of these meetings. The Applicant said that: getting ready for the meeting started around 6:00 pm; the meeting started around 7:00 pm and would finish any time after 9:00 pm; and, while he was usually home by 10:00 pm, this could be later if debriefing was required. In closing submissions, the Applicant also said that he might arrive home later if he chose to travel by his wheelchair rather than use his modified vehicle. This oral evidence and submission from the Applicant is not consistent with the statement in his written submissions that “I need support from 6pm to 10pm to be able to attend these weekly meetings.”[84]
[84] Applicant’s Written Submission, August 2024, Joint Hearing Bundle, page 1331.
The Applicant also submitted that the additional hours were required due to the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award). In particular, the definition of an ‘Afternoon shift being any shift which finishes after 8.00 pm and at or before 12 midnight Monday to Friday.[85] Afternoon shifts attract a loading of 12.5% of the ordinary rate of pay for the whole of the shift.[86] The Applicant says that this award establishes a legal requirement that the NDIS Pricing Arrangements are subject to by operation of Rule 5.3 of the Support Rules, which states that a support will not be provided if it is contrary to a law of the Commonwealth (or relevant State of Territory).[87]
[85] Joint Hearing Bundle, page 1330.
[86] Clause 29, accessed at align="left">[87] Applicant’s oral submissions, Day 2.
The Agency says that the NDIS Pricing Arrangements apply and that these arrangements state that:
Weekday Daytime Support is any support to a participant that starts at or after 6:00 am and ends before or at 8:00 pm on a single weekday
A Weekday Evening Support is any support to a participant that starts at or after 8:00 pm and finishes at or before midnight on a single weekday (unless it is a Public Holiday or Night-time Sleepover Support).[88] [emphasis in original]
[88] Respondent’s Statement of Issues, Facts and Contentions, page 1167 of the Joint Hearing Bundle.
With regards to the SCHADS Award, the Agency made oral closing submissions that: there was no objective evidence that any such award applies; and the determination of any applicable employment award as between the service provider and the formal support providers for the applicant is irrelevant to the purposes of this proceeding. I do not accept these submissions from the Agency. The SCHADS Award is a publicly available Commonwealth instrument which is expressly referenced within the NDIS Pricing Arrangements at Page 8:
The NDIA expects that providers pay their disability support workers in accordance with relevant awards and agreements. Participants should expect that the price for services is in line with the quality and cost of service provision. For example, where providers employ DSWs in line with Social and Community Services Employees section for the SCHADS Industry Award, a price for services at the limit would be justified.
At the start of the section of the NDIS Pricing Arrangements dealing with the shift definitions above, there is a paragraph:
In determining which price limit is applicable to a support, the important consideration is when the support is provided to the participant, not the shift of the worker used to deliver that support as determined by the applicable Industry Award or Enterprise Bargaining Agreement.[89]
[89] NDIS Pricing Arrangements page 15.
This paragraph would suggest that the definition of ‘Afternoon Shift’ in the SCHADS Award is not applicable for the purpose of NDIS price limits. However, this is later clarified on page 16 of the NDIS Pricing Arrangements (after the definitions of weekday evening rate etc):
An exception to this general rule occurs when a particular support crosses a shift boundary and the same worker delivers the entire support. In this case, the higher of the relevant price limits applies to the entire support and the provider should make the claim against the relevant support item.
Based on this, as the Agency has agreed that that providing a support worker for the period of 8:00 pm to 10:00 pm on a weekday evening is reasonable and necessary. The Applicant’s support coordinator may be able to arrange for a change of shift workers while the Applicant is at the SES such that the evening support worker covers to 8:00pm to 10:00pm shift. If this option is not available, and the same support worker has to continue a shift from before 8:00 pm, my view is that (based on the exception in the NDIS Pricing Arrangements above) the Agency should make provision for the whole of this shift to be paid at the evening rate. Ultimately, these are matters for plan implementation rather than for determination by the Tribunal.
I do not consider that provision of a support worker beyond 10:00 pm is reasonable and necessary. I am not persuaded by the Applicant’s oral evidence and submissions regarding returning later than 10:00 pm and consider that extending a support worker to 10:00 pm will be sufficient. If there are circumstances where the Applicant cannot return home prior to 10:00 pm, then this is a matter for the Applicant to balance with his other community participation hours.
Support (b)(iii): Additional support worker hours for SES weekend training
The Applicant also seeks 29 support worker hours at the weekend rate to participate in SES training courses. This is different from the SES weekend events discussed in the STA section above. These courses are provided in the local area, during the day, and do not require accommodation. Participation with the SES is one of the Applicant’s stated goals and it is not in dispute that it is beneficial for the Applicant to engage with the SES. Dr Waugh has said the following in relation to SES courses:
Heath enjoys his voluntary involvement with the SES. I have recommended no more then 6 hours/day for most of his involvement due to physical and mental fatigue. However, he could manage the occasional course up to 8hours. He could be involved in some outdoor activities such as first aid courses and searches (limited to 6hours/day) as he has a support worker with him and can cease the activity at any time. The community involvement and involvement in a team is beneficial to heath’s [sic] mental health.[90]
[90] Joint Hearing Bundle, page 903.
The Agency submits that there is no evidence before the Tribunal to substantiate the details of the courses. The Agency also relies on the report of Ms S Yates in which she says:
The training subjects noted by Mr Johnstone would appear to be available through online courses which could be completed within his home environment or at the SES office using his current support worker hours.
In reply, the Applicant emphasised the benefit of participating face-to-face with others for his community engagement, relationship‑building with the SES team and sense of contribution to society. The Applicant was also concerned that the online courses referenced in Ms S Yates’ report would not be recognised by the SES or the responsible government agency. I agree with the Applicant’s concerns and am not persuaded that the training options outlined in Ms S Yates’ report are comparable supports which would achieve the same outcome at a substantially lower cost as set out in per Rule 3.1(a) of the Support Rules.
However, the Applicant has not provided any other information to demonstrate the duration, frequency or timing of the courses. Currently, the Applicant is funded for five hours of community participation on Saturday. I only have the Applicant’s submission on which to base the need for this training to be completed outside of these available weekend support worker hours. While the Applicant’s submissions and oral evidence are of weight, it would seem relatively straight-forward to provide information from the SES about these courses. In providing supports that require public funds there does need to be a minimum standard for evidence provided. Presently, there is not sufficient information to indicate that these courses need to be attended outside of the hours that the Applicant has a support worker. I am therefore not satisfied that the support worker hours requested for attending these courses is reasonable and necessary.
With some further information about these courses, it might be open for an NDIS decision‑maker to consider this request as reasonable and necessary. In the meantime, if the current weekend support worker hours are not sufficient, the Applicant could discuss with his support coordinator whether he could use some of his other community participation support worker hours flexibly to attend these courses, including the additional excursion hours approved above.
Support (b)(iv): Additional support worker hours for meal preparation
The Applicant seeks an additional nine hours per week for a specialised, dedicated support worker to prepare meals. The Applicant says that this is required due to his specific meal and sensory needs, in combination with the need for his standard support workers to provide him constant supervision.[91] The Applicant relies on the report of Ms Georgiou in which she says:
·With the Applicant’s ASD, his sensory criteria for food can change daily which makes meal-planning difficult;
·The most challenging part of the Applicant’s ASD with respect to food is taste and texture fatigue;
·The Applicant’s current protein intake is inadequate;
·The ideal option is a dedicated support worker visiting the Applicant in the morning to confirm his tolerated foods on that day, then purchasing the ingredients, and returning to prepare the meals, 2-3 times per week;
·Other support workers cannot do this while supervising the Applicant and the consistency of different support workers could result in further food aversions;
·Ready-made meals are not an option due to the unpredictability of the Applicant’s food aversions and likely food wastage.[92]
[91] Applicant’s Written Submission, August 2024, Joint Hearing Bundle, pages 1424 to 1426.
[92] Report of Eleni Georgiou, Dietician, 1 July 2024, Joint Hearing Bundle, pages 999 and 1000.
Ms Georgiou’s observations are largely consistent with the earlier dietician reports from Julietta Close in which Ms Close says:
Due to his sensory issues, his taste and texture preferences change daily and eating the wrong meal can result in a very traumatic experience for Heath. Since Heath doesn’t feel hunger due to his disabilities and medications, he requires support workers to prompt him to eat, and often feels bloated after eating due to his physical conditions.
Heath finds grocery shopping too overwhelming and time consuming due to his disabilities, and therefore is difficult for the grocery shopping to be done as regularly as it should be for his needs.[93]
[93] Reports of Julietta Close, dietician, 23 August 2021, Joint Hearing Bundle, page 357.
The Applicant also relies on his and Mrs Johnstone’s lived experience. In her oral evidence, Mrs Johnstone described how she and the Applicant currently share a purchased lunch most days as a way for the Applicant to regularly eat meals. Mrs Johnstone described the importance to the Applicant of meals being visually and texturally how he expects them to be, saying:
Whenever I’ve cooked a meal, I have had to put it out, present it, the way that you will be able to cope with eating it, the way that it looks. And if [the meal] doesn’t look like how you imagined it will look like, you won’t be able to eat it. And you may not be able to eat that … type of meal for a very long time because of the impact on you.
… You describe the texture that you want something to be, whether you want it creamy or crunchy, depending what your mind is telling you, you need that day. You tell me that’s what you need. And if it’s not cooked that way you won’t be able to eat it.
… you may not be able to eat that meal again for a week, a year, or possibly ever again in your life.[94]
[94] Oral evidence, Day 3.

I acknowledge that these fortification supplements may not clearly fall within the Item 9(a) of Schedule 1 of the Transitional Rules. I also consider that fortification falls within Rule 5.2(a) of the Support Rules and as it is an additional living costs incurred solely and directly as a result of the Applicant’s disability support needs. In reaching this conclusion, I have also had regard to the following paragraph from page 6 of the Operational guideline: nutrition supports including meal preparation:
To help you get the nutrition you need, you may be prescribed nutritional supplements that you eat or drink by a suitably qualified health professional. These supplements increase the amount of nutrition you get in your diet. We may be able to include funding for the prescribed nutritional supplements in your plan. The supplements need to be related to your disability.[192]
[192] NDIS Operational guideline: nutrition supports including meal preparation published 13 October 2023.
Overall, I am satisfied that the dietary supplements are a reasonable and necessary support for the Applicant. The supplements are necessary due to the Applicant’s severe food aversions related to his psychosocial disability.[193] The likely effectiveness and benefits are supported by appropriate professional opinions.[194] The supplements will assist the Applicant to achieve his goal of improving his physical well-being.[195] In turn, improved physical wellbeing will assist with the Applicant’s social and economic participation.[196] At approximately $2,500, the supplements represent value-for-money given the benefits achieved.[197] The supplements are an NDIS support under the Transitional Rules.[198] As the supplements are required due to the Applicant’s psychosocial disability, I consider that they are additional living costs incurred solely and directly as a result of the Applicants disability support needs,[199] are most appropriately funded by the NDIS and not more appropriately funded by other general support services.[200]
[193] NDIS Act, section 34(1)(aa).
[194] Section 34(1)(d).
[195] Section 34(1)(a).
[196] Section 34(1)(b).
[197] Section 34(1)(c).
[198] Sections 10 and 34(1)(f).
[199] Support Rules, Rule 5.2(a).
[200] Section 34(1)(f) prior the Getting the NDIS Back on Track Amendments.
Support (f)(xii): specialised umbrellas
In the email cover to the plan implemented on 2 October 2024, the Agency advised that the consumables item: umbrellas – specialised ($99.60) remained in dispute. The Applicant seeks two umbrellas, one which is a large sun umbrella with a protective coating that reflects infrared and ultraviolet rays. The Applicant says this is required to reduce heat stress in the tropics and is related to his disability and thermo-regulation issues. The second umbrella is a large clear umbrella which the Applicant uses for rain protection for himself and his PWC and is required so that the Applicant has visibility when moving his PWC in the rain. The Applicant also raises points regarding discrimination legislation and human rights. As the Applicant is not prevented from acquiring or using these umbrellas, I do not need to consider these submissions further.[201]
[201] Applicant’s Written Submission, August 2024, Joint Hearing Bundle, pages 1347 to 1358.
The Agency submits that umbrellas are now excluded by the Transitional Rules:
In the list of supports that are not NDIS supports in Schedule 2 of the Transitional Rules, Item 1(i) stipulates that standard household (including garden) items, appliances, tools and products are not NDIS supports.
Section 4 of the NDIS Supports Rules defines ‘standard item’ for a participant or prospective participant as meaning:
an item that is not modified or adapted to address the functional impairments of the participant or prospective participant.
While ‘standard item’ is not used elsewhere in the Transitional Rules, the Explanatory Statement states the following with respect to the definition in section 4:
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.
The Respondent submits that within that definition, umbrellas are expressly excluded by item 4(i), Schedule 2 of the Transitional Rules, read with s10 of the NDIS Act.
In his response, the Applicant submits that the umbrellas are not standard household items that fall within this category of the Transitional Rules. I agree with the Applicant’s submission. Schedule 2, Item 1(i) is in the category “Day-to-day living costs—accommodation and household”. In this context I would not consider that the umbrellas (which are used during community participation) are in the accommodation and household category.
In my view, the more relevant category is Schedule 2, Item 4 “Day-to-day living costs — lifestyle”. Item 4(g) says that “standard recreational equipment” is not generally a NDIS support. The Applicant does not submit that the umbrellas fall within a specific Schedule 1 category. In my view, Schedule 1, Item 7(a) in the category “Assistive equipment for recreation” is the most relevant and states that “The provision of assistive products used in sports or other recreational activities” including “personal recreation equipment modification” is an NDIS support unless otherwise provided.
I have also had regard to the Recreation Guideline which says that the NDIS may fund “specialised equipment or modification to equipment to help you to join in social and recreation activities”.[202]
[202] NDIS Operational guideline: Social and recreation support published 21 November 2024, page 3.
With regards to the Support Rules, I agree with the Agency that standard umbrellas could be considered day-to-day living cost that anyone living in tropical north Queensland could be expected to purchase. Rule 5.2 says that some day-to-day living costs may be funded if they are:
(a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b) costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
It is not clear to me that the specialised umbrellas are either solely and directly as a result of the Applicant’s disability support needs or are ancillary to the funded F5 PWC. The Applicant’s submissions form part of his lived experience and this evidence is of weight before the Tribunal. However, I was unable to locate any recommendations from an occupational therapist or similar that support the Applicant’s submissions that these umbrellas are specialised or modified for his disability support needs or for use of the F5 PWC.
Without better information on the specialised nature of these umbrellas, I consider that the umbrellas may be “standard recreational equipment” that fall within Schedule 2, Item 4(g) of the Transitional Rules and are therefore not generally an NDIS support. This means that I am unable to be satisfied that section 34(1)(f) (as amended) is met as it is unclear to me that the umbrellas are an NDIS support for the Applicant. I am also not satisfied that the umbrellas are additional living costs solely and directly as a result of the Applicant’s disability support needs or are ancillary to the use of the F5 PWC. Therefore I am not satisfied that the umbrellas are permitted under the Support Rules as required by section 34(2).
Support (f)(xiii): wheelchair mounted fans
In the email cover to the plan implemented on 2 October 2024, the Agency also advised that the following items remained in dispute:
·Mounted PWC fans ($157.90); and
·Mounts for Fans for PWC ($156.00).
The Applicant submits that he has been using wheelchair fans for several years and finds them essential for regulating his temperature, particularly when outdoors. He says they are also useful indoors when he requires urgent cooling and are used in combination with spray bottles and iced water.[203] In addition to the Applicant’s lived experience and submissions, the assessment template for the F5 PWC completed by Ms McGregor on 7 May 2022 specifies that 12-volt power is required for armrest fitted fans.[204] The Agency accepts that the Applicant experiences impaired thermoregulation and that this is supported by relevant reports.[205]
[203] Applicant’s Written Submission, August 2024, Joint Hearing Bundle page 1359.
[204] Joint Hearing Bundle, page 477.
[205] Respondent’s Statement of Issues, Facts and Contentions, page 1173 of the Joint Hearing Bundle.
I cannot see that the Agency has made any specific submissions with regard to the wheelchair fans. Ms S Yates raises a safety concern that the fans may be a ‘non‑approved aftermarket accessory’ which is not recommended by the F5 PWC manufacturer.[206] There is minimal information provided that would support a finding that the fans are likely to cause harm to the participant or pose a risk to others such that they would be prohibited under Rule 5.1(a) of the Support Rules. I am not satisfied that this is a tangible risk.
[206] Joint Hearing Bundle, page 1128.
The Agency does not contend that the wheelchair fans are prevented from being funded under the Transitional Rules. I consider that the wheelchair fans fall within Items 28(b) and (e) of Schedule 1 in the category “Personal mobility equipment”. Wheelchairs are listed as at subitem (b) and ‘maintenance, spare parts and consumable items specific to equipment provided’ is subitem (e). I do not see any category in Schedule 2 that would indicate that the wheelchair fans are not generally an NDIS support.
I consider that the wheelchair fans and mounts are a reasonable and necessary support to be funded in the Applicant’s SPS. The fans assist the Applicant with thermoregulation which is a need arising from an impairment which meets the disability requirements.[207] The fans assist the Applicant to pursue his goal of engaging in outdoor activities and facilitates his social participation.[208] The fans and mounts are low-cost and are value-for-money relative to the benefits achieved.[209] There is no evidence that there are lower cost alternatives that achieve the same outcome.[210] The fans are likely to be effective in managing the Applicant’s temperature.[211] The fans are not a support that is reasonable for the Applicant’s family to provide.[212] The fans are an NDIS support under Item 28(b) and (e) of the Transitional Rules.[213] The fans are most appropriately funded under the NDIS.[214] The fans and mount are not prohibited from funding as being likely to cause harm to the participant or pose a risk to others.[215]
[207] NDIS Act, section 34(1)(aa).
[208] Sections 34(1)(a) and (b).
[209] Section 34(1)(c).
[210] Support Rules, Rule 3.1(a).
[211] Section 34(1)(d).
[212] Section 34(1)(e).
[213] Sections 10 and 34(1)(f) as amended.
[214] Section 34(1)(f) prior to amendment.
[215] Support Rules, Rule 5.1(a).
I would note that the amounts of $157.90 and $156.00 above are for mounting fans on two PWCs and this included the XT4 PWC. As I am not satisfied that the XT4 PWC is a reasonable and necessary support, the approved amount will need to be for fans and mounting for the F5 PWC only.
Support (f)(xiv): spray bottles and electric spray bottle heads
The parties also advised that the following consumables had not been resolved and could be determined based on the written material and submissions:
·Spray bottles ($26.60)
·Spray bottle heads – electric ($29.95)
The spray bottles and electric spray bottle heads were specifically considered by Ms S Yates, who agreed that: there was evidence that water spray can assist with managing body core temperature; this would not be a risk or duplication of other supports; and that she was not aware of lower cost options ‘apart from a cold towel’.[216] Ms S Yates does not say that a cold towel would achieve the same outcome. The use of spray bottles is also referred to in the report of Ms McGregor[217] and the statement of Mrs Johnstone.[218]
[216] Joint Hearing Bundle, pages 1130 and 1131.
[217] Joint Hearing Bundle, page 371.
[218] Joint Hearing Bundle, page 977.
The Agency does not submit that the spray bottles and electric bottle heads are prevented from being funded under the Transitional Rules. I consider that Item 16, Schedule 1, “Disability-related health supports” is the most appropriate category that applies to spray bottles used for thermoregulation. I was unable to locate any NDIS Operational Guidelines that deal with this issue.
On balance, given the low cost of the items, the Applicant’s lived experience and the supportive assessment of Ms S Yates and others, I consider that the spray bottles and electric spray bottle heads are reasonable and necessary supports to be funded in the Applicant’s SPS. I consider that these supports assist the Applicant with thermoregulation which is a need arising from an impairment which meets the disability requirements.[219] The spray bottles assist the Applicant to pursue his goal of engaging in outdoor activities and facilitates his social participation.[220] They are low-cost and value-for-money relative to the benefits achieved.[221] I am not satisfied that cold towels are a lower cost alternative that achieve the same outcome.[222] The spray bottles are likely to be effective in managing the Applicant’s temperature.[223] They are not a support that is reasonable for the Applicant’s family to provide.[224] The bottles are not excluded under the Transitional Rules and I consider that they are an NDIS support for the Applicant.[225] The bottles are most appropriately funded under the NDIS as they relate to the Applicant’s disability needs.[226]
[219] NDIS Act, section 34(1)(aa).
[220] Sections 34(1)(a) and (b).
[221] Section 34(1)(c).
[222] Support Rules, Rule 3.1(a).
[223] Section 34(1)(d).
[224] Section 34(1)(e).
[225] Sections 10 and 34(1)(f) as amended.
[226] Section 34(1)(f) prior to amendment.
Support (f)(xv): other cooling aids
The parties also advised that the consumables item “other cooling aids ($450.00)” had not been resolved and could be determined based on the written material and submissions. The Applicant’s submissions on ‘other cooling aids’ are very limited. The Applicant identifies his thermoregulation issues and difficulties in the hot tropics which, as noted above, is accepted by the Agency. The Applicant also states that his current cooling aids quickly become mouldy and that he is seeking better alternatives. What these alternatives are has not been stated.[227] In their submission, the Agency sought clarification of the specific cooling aids sought. The Agency also agreed to fund cooling aids related to neck collars to the value of $210.00.[228]
[227] Applicant’s Written Submission, August 2024, Joint Hearing Bundle, page 1362.
[228] Respondent’s Statement of Issues, Facts and Contentions, pages 1171 and 1182 of the Joint Hearing Bundle.
There is insufficient information before me to be able to determine that the better cooling aids that are being explored by the Applicant are reasonable and necessary supports. The Applicant has a consumables budget with which low-cost items can be purchased with assistance from his plan manager. If the consumables budget in his plan is not sufficient for these other cooling aids, this can be raised with the Agency.
Support (f)(xvi): cooler bags for wheelchairs
The Applicant seeks cooler bags for use on his wheelchair at a cost of approximately $140.00 per year. Again, this is a support that is being determined based on the written evidence and submissions. One cooler bag is used at a time and is hung from the Applicant’s wheelchair. He stores his cooling aids and temperature sensitive medication in this bag. The Applicant included a number of photos with his submissions on this topic. The photos include a stack of six cooler bags that the Applicant says have been worn out from frequent bumping on the side of his chair. Based on his lived experience, the Applicant says he requires four replacement cooler bags per year due to wear and tear.[229]
[229] Applicant’s Written Submission, August 2024, Joint Hearing Bundle, pages 1376 to 1378.
As above, the Applicant’s need for cooling aids for thermoregulation is not disputed by the Agency. In Ms S Yates’ report, she observed the Applicant have two cardiac episodes during the five-hour assessment, one of which required support staff to administer a Glyceryl Trinitrate (GTN) spray.[230] While not specifically related to the cooler bags, in her oral evidence, Dr Waugh confirmed that the Applicant suffered cardiac events multiple times per day which frequently required the use of the GTN spray. Dr Waugh also confirmed that the GTN spray needed to be kept refrigerated. If the cardiac event was not managed by the GTN spray and other interventions, an ambulance would need to be called.[231] Based on this information, I accept that it is essential for the Applicant to have a bag in which items can be kept cold during community participation.
[230] Joint Hearing Bundle, page 1058.
[231] Oral evidence, Day 3.
As with the wheelchair mounted fans discussed above, Ms S Yates raises concerns that the cooler bags may represent a safety risk as they are non-approved aftermarket accessories. Ms S Yates refers to the F5 PWC user manual which says that:
The likelihood of the wheelchair’s tipping and the point at which the wheelchair will tip forward, back or to the side depends on its centre of balance. Note that the following factors affect the wheelchair’s centre of balance:
… The use of a backpack or other accessories, depending on the amount of weight added.
a hazardous situation which, if not avoided, could result in serious injury or death as well as damage to the product or other property.
I note this concern but am not satisfied that this is sufficient to find that the cooler bag is likely to cause harm to the participant or pose a risk to others.[232] It is a consideration that would benefit from some further assessment. Ms S Yates also observes that there are approved bags and carriers for the F5 PWC and that cooler bags may be able to be stored within one of these. I have looked at the manufacturer’s website using the link provided in Ms S Yates’ report.[233] I note that there is an approved backpack and also a hard shell ‘medical necessities’ bag available.
[232] Rule 5.1(a) of the Support Rules.
[233] Joint Hearing Bundle, page 1183.
I am not persuaded that the current bags used by the Applicant are value-for-money. I was not able to locate any recommendation for using the current cooling bags by an occupational therapist or other professional. In the assistive technology assessment template completed by Ms McGregor on 15 April 2024, she does recommend a luggage rack for the large number of items that the Applicants needs to carry.[234] But this does not specifically cover cooler bags.
[234] Joint Hearing Bundle, pages 828 and 829.
As the Applicant is using four cooler bags per year, I am concerned that these cooler bags are not durable enough. An assessment comparing the current cooler bags with options for storing a cooling container within an approved backpack or medical necessities bag would be sensible. It is possible that a more expensive, but more durable, storage solution would represent better value-for-money. It would be helpful if this assessment also considered the recommended weight distributions for safe handling of the PWC. A solution for the Applicant to take cold items with him when accessing the community is essential. However, without a professional assessment of the most suitable options, I am unable to be satisfied that the current cooler bags represent value-for-money for the purpose of section 34(1)(c). I am therefore not satisfied that these cooler bags are a reasonable and necessary support to be funded in the Applicant’s SPS.
Support (f)(xvii): straps and accessories for wheelchair

The Applicant seeks $163.36 funding for straps and accessories for his wheelchair.[235] These include carabiners, velcro, clips and straps that are used to attach items to his wheelchair. The Applicant explains that these require frequent replacement as ‘they often get damaged passing objects, going through doors, get caught on things, etc, and so typically last 2 to 4 months.’ The Applicant includes photos of the many straps and carabiners attached to his F5 PWC.[236]
[235] I have not included the portion of the Applicant’s request that related to the XT4 PWC.
[236] Joint Hearing Bundle, pages 1379 and 1381.
The Agency submitted that they were unclear as to which accessories required replacement and requested confirmation before considering this request further.[237] The Tribunal does not have any further specific submissions from the Agency on this issue. As with some other consumable items, the parties agreed to proceed based on written evidence and submissions.
[237] Joint Hearing Bundle, page 1182.
Ms S Yates again raises concerns with the use of non-approved aftermarket accessories.[238] As above, I do not consider the straps and accessories as being likely to cause harm to the participant or pose a risk to others. However, as with the cooler bags above, I do think this warrants further assessment. It is concerning to me that the Applicant states that these items get caught on things and this does indicate that there are some risks and drawbacks with the current approach. The level of items that the Applicant is adding to his F5 PWC, and their possible impact on his safe use of the PWC, would benefit from a professional assessment. There may be better storage solutions that do not involve the level of straps and carabiners that the Applicant currently utilises.
[238] Joint Hearing Bundle, page 1134.
I was unable to locate any recommendation for using the current straps and carabiners by an occupational therapist or other professional. An assessment comparing the current approach with other storage options would be helpful. This assessment should also consider risks to the Applicant regarding straps becoming caught on objects and the safe distribution of weights for items added to the F5 PWC. Without an assessment of the most appropriate storage options, I am unable to be satisfied that the current straps and accessories represent value-for-money for the purpose of section 34(1)(c). I am therefore not satisfied that straps and accessories are a reasonable and necessary support to be included in the Applicant’s SPS.
Support (f)(xiii): walking sticks
The Applicant seeks funding of $69.00 per year for foldable walking sticks that are transported on his F5 PWC. The Applicant says that these are subject to breakage or support workers losing parts. The Applicant does not otherwise provide further information in relation to this support request. However, there are many references to the Applicant’s use of walking aids throughout the Joint Hearing Bundle. For example, in the assistive technology assessment template for the Ki MWC completed by Ms Ford on 28 November 2023, she states that the Applicant:
Ambulates with a slow pace and uneven gait for short distances with effort using 2 x single point stick and a quad stick. Also will use furniture / walls for support as he cannot use in PWC along the hallway due to clutter. Requires intermittent contact guarding /steading when fatigued to move around the home
Unable to walk >50 metres and needs to rest when ambulating >10 metres.[239]
[239] Joint Hearing Bundle, page 584.
The Agency’s submissions do not appear to address this item. Ms S Yates appears to be supportive of this item, stating that: the use of walking aids allows Mr Johnstone to safely mobilise within his home; the replacement of broken walking sticks is not a duplication of a support already funded; would not pose a safety risk; and there are no lower cost alternatives.[240]
[240] Joint Hearing Bundle, page 1136.
Walking sticks would appear to fall within Schedule 1, Item 28(a) of the Transitional Rules which says that “assistive products for walking” in the category “Personal mobility equipment” are NDIS supports unless otherwise provided. Based on the information before me, walking sticks appear to be an NDIS support that the Applicant requires. However, there is not enough information about the specific folding walking sticks, or their need for replacement, that would allow me to determine that consumables funding for this item is reasonable and necessary on an annual basis.
If the walking sticks require replacement due to damage by support workers, the Applicant should also raise this with the service provider. This may be a matter for performance management or an insurance claim by the service provider.
Reimbursement for consumables expenditure
In the earlier jurisdiction decision in this matter, SM Buxton said that:
The Respondent submitted, in relation to supports that had already been accessed by a participant but for which funded had not yet been provided in the Statement of Participant Supports:
“In Pavlakis, Senior Member Buxton observed as follows—albeit in the context of a decision made by the Tribunal itself, rather than a reviewer (at [38]):
The decision of the Tribunal automatically takes effect from the date on which the decision under review has or had effect ... That may date as far back as the CEO’s original decision if aspects of the SPS are to be specified for the supports which should have been specified in the original decision, particularly where the participant has already been meeting the cost. However, for forward looking issues, such as management of funds, re-assessment dates and funding for support not yet paid for by the participant, it may be necessary to expressly stipulate that these supports are to be funded from the date of the decision and not earlier. The preferable approach will depend on the facts in each case.
Consistent with Senior Member Buxton’s observations, the Agency submits that a reviewer (following remittal under section 42D of the AAT Act) or the Tribunal (making a decision under section 43) can decide that a support should be funded ‘as far back as the CEO’s [or the delegate’s] original decision’, or that it should be funded ‘from the date of the decision and not earlier’, or from another point in time.”
This submission squarely puts to rest any concern that jurisdiction in this review to consider reasonable and necessary supports that may already have been provided to the Applicant, but not yet funded in his SOPS, may be affected by a reconsideration following remittal under section 42D. The Tribunal notes the Respondent’s accurate submission that supports cannot be backdated to a start date prior to that of the current plan which is before the Tribunal.[241]
[241] Johnstone and National Disability Insurance Agency [2023] AATA 3632, paragraphs 18 and 19.
Consistent with these findings, the Applicant is entitled to be reimbursed for approved consumables that were purchased back to the start date of the original plan under review, being 14 January 2021. However, the Applicant is not entitled to funding for consumables which have not been approved for inclusion in the SPS. Whether the Applicant is required to pay back amounts that may have already been received for non-approved consumables is a matter for the Agency.
DECISION
The decisions of the Agency under review are set aside and remitted for reconsideration in in accordance with the direction that the statement of participant supports specifies that the reasonable and necessary supports include:
(a)An additional 18 days of Short-Term Accommodation for Respite per year;
(b)An additional 6 hours per week for a second support worker to assist with excursions; and
(c)Consumables funding for:
(i)three two-way radios;
(ii)wheelchair mounted fans;
(iii)spray bottles with electric heads;
(iv)medication roll packaging; and
(v)dietary supplements.
All other supports in the Applicant’s existing statement of participant supports, excepting any one-off assistive technology supports already used, are to be replicated pro‑rata from the date on which the supports in the paragraph above are included in the Applicant’s statement of participant supports until the reassessment date.
The management of funding for reasonable and necessary supports is to remain the same as the management of funding for those supports as specified in the Applicant’s existing statement of participant supports.
The date the Respondent must reassess the Applicant’s plan is to be 12 months after the date on which the supports above are included the Applicant’s statement of participant supports.

Dates of hearing: 16 to 24 September 2024

Date final submissions received: 11 November 2024

Representative for the Applicant: Self-represented with support from Mrs Johnstone

Solicitors for the Respondent:

Counsel for the Respondent:

Mills Oakley

Genevieve Yates

Dates of hearing:	16 to 24 September 2024
Date final submissions received:	11 November 2024
Representative for the Applicant:	Self-represented with support from Mrs Johnstone
Solicitors for the Respondent: Counsel for the Respondent:	Mills Oakley Genevieve Yates