Keys and National Disability Insurance Agency (NDIS)

[2025] ARTA 269

Keys and National Disability Insurance Agency (NDIS) [2025] ARTA 269 (25 March 2025)

Division:NATIONAL DISABILITY INSURANCE SCHEME

Tribunal Number:    2023/7181

Re:Cara Keys

APPLICANT

AndCEO, National Disability Insurance Agency

RESPONDENT

Tribunal:Senior Member J Collins

Date:25 March 2025

Place:Brisbane

DECISION

From 14 October 2024, the Administrative Appeals Tribunal (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 (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.

Pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is affirmed.

.........................................

Senior Member J Collins

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME

Osteogenesis imperfecta – reasonable and necessary supports – consideration of section 34 National Disability Insurance Scheme Act 2013 (Cth) – Specialist Disability Accommodation – whether Applicant is eligible for SDA – whether Applicant has extremely reduced functional capacity in undertaking mobility – whether Applicant has high need for person-to-person supports – whether Applicant meets SDA needs requirement – whether SDA is a reasonable and necessary support – decision affirmed

Legislation

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act) (Cth)

Administrative Review Tribunal Act 2024 (Cth) s105

National Disability Insurance Scheme Act 2013 (Cth) s10, s33, s34, s35

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)- s129

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)

National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)

National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth)- Rules 5, 11, 12, 13, 14

Cases

G v Minister for Immigration and Border Protection [2018] FCA 1229

McGarrigle v National Disability Insurance Agency [2017] FCA 308

National Disability Insurance Agency v WRMF [2020] FCAFC 79

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60

XYZ v Commonwealth [2006] HCA25; (2006) 227 CLR 532

Minister for Home AffairsvG [2019] FCAFC 79

Secondary Materials

NDIS – Operational Guidelines – Reasonable and necessary supports

NDIS Operational Guidelines – Specialist Disability Accommodation

STATEMENT OF REASONS

BACKGROUND

1. Mrs Keys, a 64-year-old woman, is a participant of the National Disability Insurance Scheme (‘the scheme’).

2. Mrs Keys became a participant in the scheme on the basis of meeting the access requirements due to a physical impairment.

3. Mrs Keys’ physical impairment arises as a consequence of the condition osteogenesis imperfecta – Type 1. (OGI).

4. On 11 May 2023, the National Disability Insurance Agency (the Agency) approved a Statement of Participant Supports (SOPS) for Mrs Keys.[1]

   [1]T21, Subsection 33(2) NDIS Act

5. On 18 July 2023, Mrs Keys requested an internal review by the Agency. In doing so she requested Specialist Disability Accommodation (SDA) for a one resident, one-bedroom apartment with onsite shared supports in the ‘fully accessible’ category.[2]

   [2] SFIC at para 6

6. SDA is defined as follows:[3]

‘accommodation for a person who requires specialist housing solutions, including to assist with the delivery of supports that cater for the person’s extreme functional impairment or very high support needs’.

[3]Rule 5, National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth).

1. The Agency conducted an internal review. On 16 August 2023, the Agency varied its decision made on 11 May 2023. This variation approved the funding for 4 hours per day of support worker assistance. It did not include funding SDA.

2. On  28 September 2023, Mrs Keys applied to the Tribunal for a review of the Agency’s decision to not fund SDA for her as a reasonable and necessary support.

3. At the hearing, Mrs Keys was not legally represented. The Agency was represented by Mr Hartnett of Counsel, instructed by Mills Oakley Lawyers.

ISSUES

10.  The issues before the Tribunal are whether:

• Mrs Keys is eligible for SDA on the basis that it is a reasonable and necessary support for her; and

  ·     If so, what type and form of SDA is appropriate for Mrs Keys.

11.  Mrs Keys contends in her application as follows:

‘I meet the eligibility criteria for SDA funding and have provided sufficient evidence to support my request for inclusion of this in my plan.’

12.  Mrs Keys seeks funding for the following SDA:

·     Building type: Apartment, one-bedroom, one resident;

·     Design: Fully Accessible;

·     Location: Gold Coast;

·     Fire Sprinklers: Yes.

13.  The Agency contends that SDA is not a reasonable and necessary support for Mrs Keys pursuant to the statutory scheme.

THE LEGAL FRAMEWORK

National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act)

14. Section 34 of the NDIS Act identifies what constitutes a ‘reasonable and necessary’ support under the scheme.

15. At the time of the commencement of the application, section 34 of the NDIS Act provided as follows:

Reasonable and necessary supports

(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

(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 most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

(i)as part of a universal service obligation; or

(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

(2)The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).

16.  On 3 October 2024, and prior to the completion of this review, the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (‘the Amending Act’) made a range of ‘amendments’ to the NDIS Act.

17. These amendments in respect of the requirements pursuant to section 34 of the NDIS Act will apply to this review.[4]

[4] Section 129 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024

18. Section 34 of the NDIS Act, as amended, provides as follows (emphasis of amendments added by the Tribunal):

Reasonable and necessary supports

(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

(aa)  the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);

(a)    the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;

(b)    the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;

(c)    the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

(d)    the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

(e)    the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

(f)     the support is an NDIS support for the participant.

Note: For the purposes of paragraph (aa):

(a)   the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and

(b)   a participant's disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.

(2)The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f). (emphasis of amendments)

19. Subsection 34(1) of the NDIS Act is cumulative and therefore all the criteria must be met.

20. Paragraph 34(1)(aa) of the NDIS Act, which is an amendment, imposes an additional requirement of the criteria. This additional requirement is the consideration of whether the support is necessary to address the needs of Mrs Keys which arise from the impairment/s for which she met the disability requirements.

21. Subsection 34(1)(f) of the NDIS Act is also an amendment; however, it is a replacement of an ‘old provision’ with a ‘new provision’.

22. This new provision of subsection 34(1)(f) of the NDIS Act requires that the support is an ‘NDIS support’.

23. Also relevant to this review is the inclusion of section 10 to the NDIS Act, made pursuant to the Amending Act. Section 10 of the NDIS Act provides a definition of what constitutes an ‘NDIS Support’ for the purposes of subsection 34(1)(f) of the NDIS Act (as amended). Section 10 of the NDIS Act provides as follows:

Supports that are NDIS supports

(1)Subject to subsections (4) and (9), a support is an NDIS support for a person who is a participant or prospective participant if the support is declared by National Disability Insurance Scheme rules made for the purposes of this subsection to be an NDIS support for:

(a)    participants or prospective participants generally; or

(b)    a class of participants or prospective participants that includes the person.

Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

(2)Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (1), the Minister must be satisfied:

(a)    for rules to which paragraph (1)(a) applies--that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or

(b)    for rules to which paragraph (1)(b) applies--that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

(3)National Disability Insurance Scheme rules may declare a support for the purposes of subsection (1) only if at least one of the following applies:

(a)    the declaration of the support implements Australia’s obligations under:

(i)the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006; or

(ii)any other agreement with one or more other countries;

(b)    the declaration of the support enables the provision of sickness benefits.

Note: For subparagraph (a)(i), the Convention on the Rights of Persons with Disabilities is in Australian Treaty Series 2008 No. 12 ([2008] ATS 12) and could in 2024 be viewed in the Australian Treaties Library on the website ( that are not NDIS supports

(4)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.

Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

(5)Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (4), the Minister must be satisfied:

(a)    for rules to which paragraph (4)(a) applies--that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or

(b)    for rules to which paragraph (4)(b) applies--that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

(6)The CEO may determine, in writing, that a support is taken to not be declared under subsection (4) in relation to a participant if:

(a)    the support is prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and

(b)    the support would, apart from subsection (4), be an NDIS support for the participant; and

(c)    the participant applies to the CEO in accordance with subsection (7) for the determination; and

(d)    the CEO is satisfied that:

(i)the support would replace one or more other supports that are NDIS supports for the participant; and

(ii)the cost of the support is the same or lower than the total of the costs of the supports it would replace; and

(iii)the support would provide the same or a better outcome for the participant than the supports it would replace; and

(iv)any other conditions specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph are met in relation to the support, the participant, or both.

Note 1: A determination may be revoked under subsection 33(3) of the Acts Interpretation Act 1901.

Note 2: The National Disability Insurance Scheme rules may prescribe a support for the purposes of paragraph (a) by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

(7)An application under paragraph (6)(c) must:

(a)    be in the form (if any) approved by the CEO; and

(b)    include any information, and be accompanied by any documents, required by the CEO; and

(c)    be made in accordance with any other requirements specified in the National Disability Insurance Scheme rules for the purposes of this paragraph, which may include requirements as to the circumstances in which an application may, or may not, be made.

(8)The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of subsection (6), including by prescribing requirements with which the CEO must comply, methods or criteria that the CEO is to apply, or matters that the CEO may, must or must not take into account, in deciding whether to make a determination under that subsection.

(9)A support is not an NDIS support for a participant or prospective participant if the support consists of the provision of:

(a)    sexual services; or

(b)    alcohol; or

(c)    drugs, the possession of which is a contravention of a law of the Commonwealth, a State or a Territory.

24. Subsection 34(2) of the NDIS Act provides that the NDIS Rules may prescribe methods or criteria to be applied, or matters to which the CEO must have regard, in deciding whether the criteria under subsection 34(1) of the NDIS Act are met in respect of a requested support.

25. Section 35 of the NDIS Act provides for the making of rules in relation to prescribing reasonable and necessary supports or general supports that will not be funded or provided under the NDIS. The relevant rules in respect of this review are the:

• National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘Supports Rules’);

• National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (‘Transitional Rules’); and

• National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2013 (‘SDA Rules’).

26. Rule 3 of the Supports Rules relates specifically to subsections 34(1)(c)-(e) of the NDIS Act and provides as follows:

Value for money

3.1In deciding whether 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, the CEO is to consider the following matters:

(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);

(d)   for supports that involve the provision of equipment or modifications:

(i)the comparative cost of purchasing or leasing the equipment or modifications; and

(ii)whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;

(e)   whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;

(f)    whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).

Effective and beneficial and current good practice

3.2In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:

(a)   published and refereed literature and any consensus of expert opinion;

(b)   the lived experience of the participant or their carers; or

(c)   anything the Agency has learnt through delivery of the NDIS.

3.3In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.

Reasonable family, carer and other support

3.4In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:

(a)   for a participant who is a child:

…

(b)   for other participants:

(i)the extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community; and

(ii)the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:

(A)   the age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and

(B)   the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and

(C)   the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and

(iii)the extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes;

(d)for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.

27. Schedule 1 to the Transitional Rules identifies supports that are NDIS supports unless otherwise provided, for the purposes of subsection 10(1) of the NDIS Act. Likewise, Schedule 2 to the Transitional Rules identifies supports that are generally not NDIS supports for the purposes of subsection 10(1) of the NDIS Act.

28.  In McGarrigle v National Disability Insurance Agency[5] at [43], Mortimer J (as Her Honour then was) made the following observations in respect of these rules:

The [Supports Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement…some policy decision-making about the nature and extent of supports to be provided or funded.

[5] McGarrigle v National Disability Insurance Agency [2017] FCA 308 (‘McGarrigle’)

29.  The phrase ‘reasonable and necessary’ is not defined in the Act. It is a composite phrase and should be considered as such. In McGarrigle, Mortimer J also stated as follows:[6]

Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.

[6] Ibid at [91]

30.  The Full Court in National Disability Insurance Agency v WRMF[7] also considered the meaning of reasonable and necessary supports, and stated as follows [149]-[151]:

The phrase is a composite phrase. We accept the Agency's submissions that each limb of the phrase should be given work to do. That task is not difficult, or complicated with these two particular words, which are readily understood as conveying different meanings. However, the Parliament has chosen to use a composite phrase rather than to stipulate two distinct requirements, and therefore, as Gleeson CJ cautioned in XYZ v Commonwealth [2006] HCA25; (2006) 227 CLR 532 at [19], '[t]here are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts'.

… Both adjectives qualify the noun “support”, but they do so as a composite phrase. It is not fruitful to split them off and consider them separately, just as it is neither fruitful nor appropriate to attempt any exhaustive or authoritative judicial definition of them.

Nevertheless, there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate. (Tribunal emphasis)

[7] National Disability Insurance Agency v WRMF [2020] FCAFC 79 (‘WRMF’)

OPERATIONAL GUIDELINES

31.  The Agency issues Operational Guidelines in relation to what are considered ‘reasonable and necessary supports’ in a participant’s plan. There is no power conferred by the Act to make these Operational Guidelines, and they are issued in an exercise of executive power.[8] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines. However, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[9] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[10] where Mortimer J held:[11]

Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it.

[8] Minister for Home AffairsvG [2019] FCAFC 79 at [18]

[9] [1979] AATA 179 (1979); 2 ALD 634

[10] [2018] FCA 1229

[11] Ibid at [171]

32.  Accordingly, unless the Operational Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in a determination of what is a reasonable and necessary support for Mrs Keys. The Guidelines relevant to this review are the:

• NDIS – Operational Guidelines – Reasonable and necessary supports; and

• NDIS – Operational Guidelines – Specialist Disability Accommodation. [12]

[12] Webpage: ourguidelines.ndis.gov.au

EVIDENCE

33.  I have considered all the written evidence filed with the Tribunal provided in the joint bundle, the oral evidence provided at the hearings on 12 and 13 March 2025, and the parties’ closing submissions. I will refer in my decision to the evidence that in my view is directly relevant to the determination of this decision.

Evidence about Mrs Keys

34.  The evidence overwhelmingly supports, and it is not disputed, that Mrs Keys has a physical impairment as a result of OGI.

35.  Mrs Keys was born with OGI, a genetic disorder which is commonly referred to as ‘brittle bone disease’. Those affected by OGI have bones that fracture easily, often from mild trauma or with no apparent cause. Multiple fractures are common, and in severe cases, can occur even before birth. Features of persons with OGI can include blue sclerae of the eyes, short stature, curvature of the spine (scoliosis), joint deformities, hearing loss, respiratory problems, and a disorder of tooth development called dentinogenesis imperfecta. Mobility is also invariably affected.[13]

[13] Greenlight report 29 May 2023

36.  OGI is a degenerative and progressive condition.[14] This means that Mrs Keys’ condition will only deteriorate.[15]

[14] Greenlight report 29 May 2023

[15] Letter from Dr Henderson 10 May 2023 as referred to in the Greenlight report 29 May 2023

37.  Mrs Keys has also been assessed as having a severe to moderate bilateral hearing loss. Mr Keys uses hearings aids in both ears.[16] Mrs Keys also reports suffering from depression and anxiety[17]

[16] Letter from Brenton Herbst, audiologist, 1 November 2022

[17] Disability Housing Australia report 15 March 2023 (T docs)

38.  Mrs Keys has lived in her current rental accommodation with her 71 year old husband for almost the past 10 years. This accommodation is a double storey townhouse with 3 bedrooms and 2 bathrooms. The property has 17 stairs connecting the first and second storeys.[18]

[18]SFIC at para 4

39.  Mrs Keys’ current plan[19] is in the sum of $183,481.48 for the period 12 December 2024 to 11 December 2025. It includes the following supports:

·     $157,474.51 for Core Supports which can be used flexibly for assistance with daily activities (such as self-care and house cleaning) and social, community and civic participation. Included in this amount is an allowance of $1,500.00 to buy low cost assistive technology related to her hearing, mobility and personal care and safety.

·     $17,387.76 for Capacity Building Supports, which includes physiotherapy support.

·     $6,836.00 for Capital Supports for assistance with repairs and maintenance of assistive technology. Included in this component is the sum of $2,700.00 for an electric recliner chair.[20]

[19] Exhibit 2

[20] Exhibit 3

40.  The goals included in Mrs Keys’ plan are that she would like to:

·     increase her social connections and support networks to reduce her experience of isolation and improve her overall wellbeing;

• improve her overall physical health and reduce the risk of fractures and hospitalisation, through regular access to appropriate therapies and support;

• spend quality time with her family by inviting her grandchildren to stay with her during the school holidays in her new home or visiting interstate on a regular basis; and

  ·     achieve more independence by transitioning to an accessible and safer living environment.[21]

  [21] Exhibit 2

41.  Mrs Keys states that she is fearful and nervous in her current accommodation and that her health is deteriorating at ‘rapid speed’.[22] In May 2023, Mrs Keys had a hip injury and required 24 days of inpatient treatment.

[22] Participant statement dated 8 May 2023

42.  Mrs Keys gave oral evidence at the hearing, which can be summarised as follows:

·     She has suffered from broken bones her whole life.

·     She is always in pain.

·     She is unable to open jars or lift heavy items such as a kettle or a pot.

·     She is reliant on a rollator walker (a ‘walker’) to mobilise.

·     Her current accommodation is unsuitable.

·     She is left exhausted when she is required to access the stairs.

·     Her support worker assists her for a few hours each morning and then returns in the afternoon to further assist.

·     At times when Mrs Keys is struggling with pain or a broken bone her support worker will stay overnight.

·     Her main issues are with mobility. She has no strength in her hands. She cannot stand for any length of time and cannot walk unassisted.

·     In respect of her self-care, she receives some assistance from her support worker with showering. She is, however, able to soap most of her body, shampoo her hair and brush her hair using one arm. Mrs Keys can also brush her teeth, feed herself and put on slip on shoes.

·     Mrs Keys is able to use a mobile phone and a computer. She enjoys photography using her phone and is able to send and receive text messages. She is able to shop ‘online’. She is also able to make appointments and communicate any health concerns to her doctor.

·     Mrs Keys attends activities and appointments in the community with the assistance of her support worker, which include shopping, swimming and physiotherapy.

·     When Mrs Keys attends the local shopping centre she hires an electric scooter.

43.  Mrs Keys advised that irrespective of whether she was funded for SDA she would still require substantial assistance from her support worker. She explained that it was difficult to estimate whether her current level of support would decrease and, if so, by how much. Notwithstanding, she would still require support each day of the week with tasks such as showering, washing, lifting heavy items, opening jars, cleaning, meal preparation, transferring onto her scooter, shopping, toileting and getting in and out of chairs.

44.  Mrs Keys advised that she had ordered an electric recliner chair but there had been a ‘hold up’ in receiving this chair from the supplier. She expects to receive the electric recliner chair in the next month. With an electric recliner chair, Mrs Keys expects she will be able to get in and out of the chair unassisted.

45.  To date, Mrs Keys has not trialled an adjustable dining chair.

46.  Mrs Keys explained that she applied to the Queensland Department of Housing (QDOH) for accommodation approximately 2 years ago. She subsequently received correspondence from QDOH confirming receipt of her application. On or about that time, she also spoke with an officer of the QDOH. Mrs Keys stated that the QDOH officer advised her ‘don’t hold your breath, you could be waiting 20 years’.

47.  Mrs Keys confirmed that since her application and enquiry, approximately 2 years ago, she had not followed up with the QDOH regarding the progress of her application.

48.  Mrs Keys stated in the last 2 years she has inspected approximately 6 properties for the purpose of seeking alternate rental accommodation. She has located only one property in that time which she considered was suitable for her disability.  An application to rent this property was made by Mrs Keys. This application was, however, unsuccessful.

49.  Mrs Keys described all other prospective rental properties as unsuitable for a number of reasons which included:

·     Steps and stairs.

·     Narrow doorways.

·     Steps into the garage.

·     Inaccessible bathrooms and kitchens.

50.  Mrs Keys stated that she has also made enquiries with local real estate agents about rental accommodation that would be suitable for her disability. She was advised by these agents that due to a shortage of disability rental accommodation it would be better for her to seek SDA.

51.  Mrs Keys explained that her husband has his own health issues and suffers from rheumatoid arthritis and depression.  In May 2024, he broke his hip. He is also currently having a number of cancers removed from his skin.

52.  Mrs Keys described her husband’s mental state as deteriorating. Currently he is on a waiting list for an assessment for dementia. Mrs Keys stated, ‘his ability to understand anybody else’s needs is reducing’.

53.  Mrs Keys described her husband as historically being able to provide a level of informal support for her. Nowadays, however, she is unable to rely on him for this same informal support. Mrs Keys described her husband as ‘as bad off as me now’.

54.  Mrs Keys has a daughter who lives nearby in accommodation provided by the QDOH. She described her daughter as being in a ‘state of turmoil in her own life’ and therefore also unable to provide her with any informal support.

55.  Mrs Keys stated that she expected SDA would provide the following benefits and features:

·     Wider doorways.

·     An accessible bathroom, kitchen and laundry.

·     Access to a garage and the external environment. She explained that she would be able to leave her home independently on her scooter and go to the shops for a coffee without assistance.

·     A bigger bedroom that would allow her to access her bed from a wheelchair.

56.  Mrs Keys also referred to the difficulties for emergencies services such as ambulances accessing her in her current accommodation. She referred to an incident when she had fallen and broken 4 ribs. Due to her injury, she was unable to be placed on a stretcher for retrieval by the ambulance. She was only able to be retrieved from her townhouse in an adapted wheelchair, which was able to be used on stairs. Mrs Keys described the process of descending the stairs in this adapted wheelchair as excruciating.

Evidence of Sarah O’Brien

57.  Ms O’Brien is Mrs Keys’ support worker.

58.  In her May 2023 statement, Ms O’Brien provided the following evidence:

·     She has been supporting Mrs Keys for the past 2 years;

·     Mrs Keys lives in a 2-storey townhouse with internal stairs;

·     Mrs Keys is confined to the upstairs area of her home where there is a kitchen, living room, bathroom, bedroom and balcony;

·     Mrs Keys is unable to independently access the internal stairs, which provide access to the garage and laundry;

·     Mrs Keys’ mental health has declined in the context of the demise in her mobility;

·     Mrs Keys requires assistance showering;

·     Mrs Keys’ ‘ability to access community activities, shopping, and having social interaction has all come to a complete stop due to her inability to access the stairs in her home. Support worker attends to all shopping and activities relating outside of the home’;[23]

·     Mrs Keys’ husband suffers from rheumatoid arthritis and depression. He is unable to assist Mrs Keys with any transfers.[24]

[23] Impact statement Sarah O’Brien dated 8 May 2023

[24]JTB 2 and JTB4

59.  Ms O’Brien also provided oral evidence at the hearing which can be summarised as follows:

·     She generally provides support to Mrs Keys for 6 hours each day of the week.

·     She has assisted Mrs Keys in searching for suitable accommodation for her disability;

·     She referred to ‘drive-bys’ of accommodation. Also to ‘enquiries’ that have been made when rental accommodation ‘vacancy’ signs are seen in the local community;

·     She had attended approximately 5 property inspections in the last 18 months with Mrs Keys. In this regard, there had been no property inspections in 2025.

60.  Ms O’Brien described ‘accessibility’ as the biggest issue in respect of suitable accommodation for Mrs Keys. She explained that to manage Mrs Keys’ disability any accommodation required the following features:

·     No steps or stairs;

·     A storage facility for Mrs Keys’ 2 scooters and walking frames;

·     Flat access into the accommodation; and

·     Doorways wide enough to accommodate Mrs Keys’ walker.

Evidence of Kristen Penhaligon

61.  Mrs Penhaligon is a support coordinator and rehabilitation coach. She provided a letter of support dated 18 December 2023 in respect of Mrs Keys’ application for SDA.[25] Mrs Penhaligon referred to the following matters:

·     The cost of private rental in Mrs Keys’ geographical area;

·     The unsuitability of relying on accommodation through the QDOH on the basis of the ‘wait time’ and the shortage of ‘disability specific’ accommodation; and

·     The nature and costs of modifications to the rental property in which Mrs Keys currently resides in order to meet her disability needs.

[25] JTB1

62.  Mrs Penhaligon stated:

The practical solution is to ensure secure tenure for Cara in a Specialist Disability Accommodation where in parts this financial investment remains safeguarded and for the intended purposes of accessible accommodation for NDIS participants.

Evidence of Jason Mak

63.  Mr Mak is an occupational therapist with 20 years’ experience. He reviewed Mrs Keys in December 2022, May 2023 and January 2024. Mr Mak provided reports to the Tribunal.[26]

[26]JTB5, T1B

64.  His most recent report was dated 1 February 2024 and followed a review of Mrs Keys on 4 January 2024. [27] He provided the following opinion:

[27] JTB5

·     Mrs Keys’ capacity has declined since his first assessment in May 2023;

·     All tasks must be undertaken in a seated or lying position;

·     Mrs Keys requires a wheelchair and other mobility devices;

·     For safety reasons Mrs Keys can only be left unattended for a one-hour period;

·     The predominant support Mrs Keys requires is assistance during the night to use the toilet or take medication;

·     Mrs Keys is at a high risk of falls and in the context of her diagnosis of OGI is therefore at a high risk of an injury as a result of a fall;

·     Mrs Keys remains chair bound for most of the day;

·     Assistive technology such as a ‘falls alarm’ is a reactive response and not a proactive measure;

·     None of the alternative housing properties reviewed by Mrs Keys have OOA (onsite-overnight assistance);

65.  Mr Mak states:

‘Provision of the requested support (SDA) would ensure that Mrs Key could return to being more independent with daily tasks of personal care whilst also being able to engage in occupational tasks that are meaningful and purposeful to her eg. cooking/laundry. All of the above would be conducive to supporting her mental health and further deterioration’[28]

[28] JTB 4

Evidence of Lauren Bland

66.  Ms Bland is an occupational therapist with 16 years’ experience.

67.  Ms Bland provided a report dated 5 June 2024 following a functional assessment of Mrs Keys in her home on 14 May 2024. The evidence of Ms Bland which is relevant to this review can be summarised as follows:

·      As a result of OGI, Mrs Keys is at risk of bone fractures. Following a fracture there is a risk of permanent decline in physical function;

·     Mrs Keys is reliant upon a 4-wheeled walker to mobilise;

·     She ’furniture walks’ short distances when in her kitchen and bathroom;

·     She requires 2 people to physically assist her to navigate multiple stairs;

·     When outdoors, she mobilises using a scooter;

·     She can stand for 1 to 2 minutes with no support;

·     She requires assistance to stand from a seated position from her couch, the shower chair and dining chair;

·     In respect of bathing, Mrs Keys requires 1:1 assistance to walk through the bathroom to the shower;

·     Mrs Keys requires ‘moderate assistance to complete showering’. She requires supervision and occasional ‘hands-on assistance’ when transferring into the shower;

·     Mrs Keys uses the glass shower screen for support as she steps over the shower recess;

·     Mrs Keys uses a shower chair and handheld shower. She requires assistance from her support worker to turn the tap on and off;

·     Mrs Keys can wash her face, arms, torso, and thighs independently while sitting. She requires assistance, however, to wash her hair, back and feet.

·     Mrs Keys requires assistance to stand up from the shower stool and assistance with drying herself;

·     Her current shower recess is too small to accommodate her walker. It is also too small to allow a support worker to ‘comfortably’ assist her;

·     There is no ‘grab rail’ in her shower;

·     Due to insufficient space in the shower, Mrs Keys’ support worker often gets wet when assisting her with showering;

·     Mrs Keys is able to feed herself independently and brush her teeth by adapting her position over the bathroom sink;

·     Mrs Keys can independently administer her own medication using a webster pack’;

·     Mrs Keys requires assistance to brush her hair;

·     Mrs Keys can dress herself in a seated position. She is able to retrieve clothes if they are in the top drawer of her dressing table. She needs assistance to access clothes that are ‘hanging up’, to do up buttons, put on a bra, pull undergarments over her feet and legs and to don socks and shoes;

·     Mrs Keys requires assistance to stand up from a chair;

·     Mrs Keys accesses the toilet by reversing into the toilet using her walking frame. She can sit and stand when toileting using a windowsill for support. At times when her symptoms are pronounced she requires assistance with toileting;

·     Mrs Keys can complete transfers in and out of her hi-lo bed;

·     Mrs Keys generally only leaves the house for physiotherapy appointments which are 2 to 3 times each week. She requires physical assistance to get to her car;

·     Mrs Key ‘furniture walks’ in the kitchen. She can make herself a cup of coffee and cut soft food independently;

·     Whilst she cannot access the laundry, she can fold and hang clothes on the balcony using a portable clothes hanger; and

·     Mrs Keys is dependent upon a cleaner. She is, however, able to wipe the kitchen bench if she is seated.

68.  Ms Bland states:

‘I anticipate that Cara will require a wheelchair within the next few years. If provided with a wheelchair and a suitable home set-up (adequate circulation space, level access, under bench access), the need for support worker assistance would be significantly reduced for activities of showering, indoor leisure, laundry, light cleaning, and meal preparation. Cara’s current residence is unsuited for a wheelchair due to multiple stairs, reduced circulation space in the bedroom, bathroom, toilet and kitchen, carpet in the bedroom, and lack of under bench space in the kitchen.’

69.  Ms Bland’s opinion is that Mrs Keys:

·     currently requires 6 to 7 hours of active disability support ;

·     in her current accommodation she requires:

·2:1 assistance to access the internal stairs;

·assistance to access her garage and laundry.

70.  Ms Bland describes Mrs Keys as having:

·     extremely reduced capacity to mobilise indoors and outdoors,

the ability to walk only a few steps without a frame and being otherwise reliant on her rollator frame;

·     a moderately reduced capacity to undertake self-care. Ms Bland stated, ‘She also requires assistance with accessing her bathroom to complete self-care due to the structural limitations in her home.’;

·     in respect of self-management, as having the skills to independently self-organise, direct, motivate and regulate herself.

71.  Ms Bland recommends that Mrs Keys:

·     be assessed for and prescribed an ‘electric lift recliner seat’, which would enable her to transfer independently from her couch;

·     be provided with a height adjustable dining chair; and

·     change her residence to a single-storey level access residence with:

·automated sliding doors;

·stepless shower with no doors and room for a shower stool and a support worker;

·circulation space for a rollator frame and wheelchair;

·a kitchen with adequate space for a rollator frame and wheelchair; and

·a bedroom with suitable flooring (not carpet)[29]

[29]JTB6

72.  Ms Bland explained that despite single-level accommodation, Mrs Keys will still however require assistance with dressing, some meal preparation, cleaning, scooter transfers and shopping.

73.  Ms Bland also provided oral evidence at the hearing. In her oral evidence she confirmed her opinion expressed in her report. Ms Bland also referred to the following matters:

·     Mrs Keys’ current dining chair is unsuitable. It has no arm rests and as such she is unable to access the dining chair independently;

·     Mrs Keys’ current lounge chair is unsuitable. It is too deep and uncomfortable for her. She is unable to access this chair independently;

·     The main issue with Mrs Keys’ current accommodation is the 17 internal stairs, which render her effectively housebound;

·     The lip in the shower tiles is a high falls risk for Mrs Keys;

·     With the provision of an adjustable dining chair and an electric lift recliner lounge chair, Mrs Keys’ requirement for person-to-person supports would decrease insofar as her ability to get in and out of her lounge and dining chairs. Despite funding these items of assistive technology, Mrs Keys would still need assistance with getting on and off her scooter;

·     With a change of residence to a single-level residence that included features of wheelchair accessible doorways, an accessible bathroom (including shower recess), kitchen and bedroom, Mrs Keys would still require assistance by way of:

·Supervision while showering;

·Assistance on and off her scooter;

·Assistance shampooing her hair and washing her back;

·Carrying baskets of laundry; and

·Meal preparation.

Evidence of Joel Wearn

74.  Mr Wearn is an exercise physiologist.  He provided a number of reports in support of Mrs Keys’ application for SDA.[30]

[30] Exhibit 1-T7, T15, T16, R17

75.  In his report dated 23 June 2023 he states:

It is crucial to address the housing needs of patients with OI to mitigate these long-term risks. Adequate housing that considers the unique requirements of individuals with OI can enhance safety, mobility, independence, emotional well-being, and overall quality of life for these individuals.[31]

[31] T16

Evidence of Susanne Penniket

76.  Ms Penniket, on behalf of Disability Housing Australia, provided a report dated 15 March 2023 following a ‘virtual meeting’ with Mrs Keys.[32]

[32]T4

77.  Ms Penniket’s opinion was that Mrs Keys met the eligibility requirement for SDA on the basis of an extreme functional impairment affecting her mobility, self-care and self-management and also a high need for person-to-person supports.

78.  Ms Penniket’s report refers to Mrs Keys having explored private rentals; however, ‘they do not meet her accessibility needs; or the rent is too expensive for her being on the DSP…’

79.   Ms Penniket also states that ‘Cara’s support needs do not warrant SIL’ (supported independent living).

80.  Ms Penniket recommended SDA in the form of a one-bedroom apartment (duplex/villa/apartment) with a fully accessible design category, high physical support, robust with onsite overnight assistance. Ms Penniket referred also to Mrs Keys’ preference for funding in an SDA apartment situate across the road from her current rental accommodation.

Are the supports sought necessary to address the needs of Mrs Keys arising from the impairment in relation to which she met the disability requirements? – subsection 34(1)(aa) of the NDIS Act

81. Mrs Keys was granted access to the scheme on the basis of meeting the disability requirements pursuant to subsection 24(1) of the NDIS Act.[33]

[33] Respondent’s submissions dated 13 November 2024, ST 45

82.  I am satisfied that Mrs Keys meets the disability requirements on the basis of a physical impairment due to OGI.[34]

[34] T 14 – Report by Dr Catherine Henderson

83.  Mrs Keys has also been diagnosed with a hearing impairment but was not granted access to the scheme on the basis of this impairment.[35] Mrs Keys also suffers from anxiety and depression.[36]

[35]Respondent’s SFIC dated 5 August 2024 at para 3

[36] JTB2

84. Despite the ‘diagnoses’ of a hearing impairment, anxiety and depression, Mrs Keys must still satisfy all of the criteria under section 24 of the NDIS Act in order to meet the disability requirements on the basis of these impairments. I am satisfied there is insufficient evidence before the Tribunal in this regard.

85. On this basis, for the purposes of subsection 34(1)(aa) of the NDIS Act, the supports included in Mrs Keys’ SOPS must be necessary to address her needs that arise as a result of her physical impairment and not any hearing impairment, anxiety or depression.

Eligibility under the SDA Rules

86.  The SDA Rules provide the criteria that a participant must satisfy in order to be ‘eligible’ for SDA (the ‘eligibility criteria’). Importantly, eligibility for SDA does not equate automatically with an ‘entitlement’ to receive funding for SDA under the scheme.

87.  Satisfaction of the ‘eligibility criteria’ has the effect of establishing only whether a participant meets the required criteria in order to be ‘considered’ for SDA. As such there still remains the additional mandatory requirement for a participant who has met the eligibility criteria to satisfy the mandatory criteria of subsection 34(1) of the NDIS Act.

88.  In summary SDA will only be funded under the scheme in circumstances where a partcipant:

·     Firstly, meets the eligibility requirements prescribed under Rule 11 of the SDA Rules, and

· Secondly, also meets the criteria prescribed by subsection 34(1) of the NDIS Act.

89.  Section 11 of the SDA Rules prescribes the criteria for eligibility for SDA and provides as follows:

11  Eligibility to receive support for specialist disability accommodation.

A participant is eligible to receive support for specialist disability accommodation under the National Disability Insurance Scheme if the CEO is satisfied that:
(a)  the participant:
         (i)  has an extreme functional impairment (see section 12); or
        (ii)  has very high support needs (see section 13); and
(b)  the participant meets the SDA needs requirement (see section 14).

90.  Therefore, to meet the ‘eligibility requirements’ for SDA, the Tribunal must be satisfied that Mrs Keys has either an ‘extreme functional impairment’[37] or a ‘very high support needs’’[38] and, also that Mrs Keys meets the ‘SDA needs requirement’.[39]

EXTREME FUNCTIONAL IMPAIRMENT

[37] Rule 12, SDA Rules

[38] Rule 13, SDA Rules

[39]Rule 14, SDA Rules

Rule 12 of the SDA Rules: Does Mrs Keys have an extreme functional impairment?

91.  Rule 12 of the SDA Rules prescribes the criteria a participant must satisfy for the requirement of having an ‘extreme functional impairment’. It provides as follows: 

(1)  A participant has an extreme functional impairment if:

(a)  the impairment results in extremely reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:

(i)  mobility;

(ii)  self‑care;

(iii)  self‑management; and

(b)  the participant has a very high need for person‑to‑person supports in undertaking the activity even with assistive technology, equipment or home modifications.

(2)  For the purposes of assessing whether a participant has an extreme functional impairment, the CEO may have regard to:

(a)  any assessment or examination conducted in relation to the participant, including any assessment or examination requested by the CEO under paragraph 36(2)(b) or 50(2)(b) of the Act; and

(b)  the daily support requirements of the participant; and

(c)  any assessment tool specified by the CEO for the purposes of this paragraph

92.  Therefore, in order to have an extreme functional impairment (EFI), Mrs Keys must firstly have an extremely reduced functional capacity in either her mobility, self-care or self-management. Secondly she must also have a very high need for person-to-person supports in undertaking these activities even with assistive technology, equipment, or home modifications.

Does Mrs Keys have an extremely reduced functional capacity in relation to mobility, self-care or self-management - Rule 12(1)(a) of the SDA Rules?

93.  Mrs Keys contends that she meets the requirements of Rule 12(1) of the SDA Rules.

94.  The Agency’s contentions are as follows:

• Mrs Keys’ primary functional impairment is her ability to mobilise. Mrs Keys can mobilise using a forearm support frame for 10 to 15 metres;

• The report of Ms Bland, occupational therapist, states that Mrs Keys has an extremely reduced capacity in relation to her ability to mobilise without her walking frame. Mrs Bland however recommends assistive technology, which would reduce Mrs Keys’ reliance on supports for her mobility;

• The report of Mr Jason Mak, occupational therapist, states that in almost every area of mobility, Mrs Keys’ functional capacity improves with assistive technology;

• The clinical evidence establishes that the severity of the impact on Mrs Keys’ mobility is reduced to a level well below ‘extreme’ with the provision of appropriate assistive technology;

• Mrs Keys’ mobility impairment does not meet the definition of ‘extreme’ on the basis that her need for person to person supports would not be ‘very high’ if she were to use appropriate assistive technology;

• Mr Mak reports that ‘in an accessible environment with appropriate equipment, Mrs Keys would be likely to attend to these needs independently’;

• Mrs Bland’s report states that:

  owith an electric lift recliner chair, Mrs Keys would not require a support worker to assist her with every transfer from the couch, this would increase her independence in activities such as toileting and administrative tasks; and

  oMrs Keys requires a level access, single storey residence that is accessible for a rollator frame and wheelchair.

95.  The Agency’s position is, therefore, that with suitable assistive technology, in a single‑level home (whether rented or owned), Mrs Keys’ need for person-to-person supports would significantly decrease.

96.  The Agency also states that Mr Mak’s recommendation of SDA is based on a CANS tool assessment. The Agency contends that the CANS tool is intended to be administered in relation to people with a brain injury. It is, therefore, not an appropriate assessment tool for Mrs Keys who has OGI and not a brain injury.

97.  In summary, the Agency submits that the evidence does not establish that Mrs Keys has an extremely reduced functional capacity related to mobility, self-care, or self-management, and that Mrs Keys has a very high need for person-to-person supports in these domains that persists event with assistive technology, equipment, or home modifications.[40]

Consideration

[40] SFIC at para 21- 27

Self- management

98.  I am satisfied that Mrs Keys does not have an extremely reduced functional capacity in relation to her self-management. Mrs Keys’ evidence in relation to matters concerning her self-management[41] is that she is able to:

[41] Referred to at [42]

• use a mobile phone to call and text;

• use a computer to shop ‘online’;

• shop for groceries and other items in person (with her support worker) and make decisions in respect of what she purchases;

• make appointments for herself;

• communicate to her doctor any health concerns; and

  ·     attend inspections of rental properties and make relevant enquiries with local real estate agents.

99.  In this regard, I am also persuaded by the opinion of Mrs Bland based on an assessment of Mrs Keys in her home in May 2024.[42] Mrs Bland’s opinion was that Mrs Keys is able to independently self-organise, direct, motivate and regulate herself.[43]

[42] Refer paragraph [66] above

[43] Paragraph [69]

Conclusion

1. Mrs Keys does not have an extremely reduced functional capacity in relation to self-management. Rule 12(1)(a)(iii) of the SDA Rules is not satisfied.

Self- care

1. I am also satisfied that Mrs Keys does not have an extremely reduced functional capacity in relation to her self-care. Mrs Keys’ evidence in relation to matters concerning her self-care is that she is able to soap most of her body, shampoo her hair and brush her hair. She can also brush her teeth, feed herself and put on slip on shoes.

2. I am also again persuaded by the opinion of Mrs Bland. Mrs Bland’s opinion was that Mrs Keys has a ‘moderately reduced capacity to undertake self-care’.[44] Mrs Bland’s opinion identified that Mrs Keys was able to:

   ·     complete showering with moderate assistance, which included using a handheld shower to wash her face, arms, torso, and thighs independently while sitting in a shower chair;

   ·     feed herself, brush her teeth and administer medication;

   ·     dress herself in a seated position;

   ·     make herself a cup of coffee and cut soft food; and

   ·     wipe the kitchen bench when seated.

   [44]Paragraph [69]

3. Mrs Bland did, however, identify that Mrs Keys required assistance to wash her back and feet. In oral evidence, however, Ms Bland stated she considered that an extended shower brush would provide Mrs Keys with the capacity to wash her own feet.

4. Having regard to the evidence, I accept Ms Bland’s opinion that Mrs Keys has a ‘moderately’ reduced functional capacity in relation to her self-care. I do not accept that she meets the requisite threshold of an ‘extremely’ reduced functional capacity in relation to her self-care.

1. Based on the evidence of what Mrs Keys is able to do in terms of her self-care I am satisfied that whilst she has limitations in respect of certain aspects of her self-care, these limitations do not meet the threshold of an ‘extremely’ reduced functional capacity with self-care. 

Conclusion

1. Mrs Keys does not have an extremely reduced functional capacity in relation to self-care. Rule 12(1)(a)(ii) of the SDA Rules is not satisfied.

Mobility

1. I am satisfied that Mrs Keys does have an extremely reduced functional capacity in relation to her mobility.

2. In forming this view I have considered all of the evidence including in particular Mrs Keys written and oral evidence in relation to her difficulties with mobility.[45] I accept that Mrs Keys’ evidence was honest, truthful and without exaggeration.

   [45]Refer to paragraphs [42] ]43] [58] [66]

3. Ms Bland’s opinion that Mrs Keys’ mobility is extremely reduced both indoors and outdoors, was also persuasive, as was the evidence of Ms O’Brien.

Conclusion

1. Mrs Keys’ impairment results in an extremely reduced functional capacity in relation to her mobility.

2. Rule 12(1)(a)(iii) of the SDA Rules is satisfied in relation to the activity of mobility.

Does Mrs Keys have a very high need for person-to-person supports in undertaking mobility even with assistive technology, equipment or home modifications – Rule 12(1)(b) of the SDA Rules?

1. In closing submissions, the Agency relies on the evidence of Ms Bland which is that by using an electric recliner lounge chair and a height-adjustable dining chair (the chair equipment’), Mrs Keys will be able to access a dining chair and a lounge chair independently and without ‘person-to-person support’. This chair equipment will therefore reduce Mrs Keys’ need for person-to-person support when mobilising in and out of chairs.

2. The Agency acknowledges that this chair equipment will not ‘eliminate’ Mrs Keys’ need for person-to person support and that there will remain other aspects of her mobility for which she will still require person-to-person support. The Agency submits, however, that the ‘residual’ person-to-person support that Mrs Keys will require for her mobility will not be ‘very high’ and within the meaning of Rule 12(1)(b) of the SDA Rules.

3. I make the observation that despite the provision of the chair equipment Mrs Keys will continue to be unable to mobilise up and down stairs. This inability to access stairs however would be overcome on the basis of access to a lift.

4. I am satisfied that if Mrs Keys had access to a lift she would have no need to use stairs. She would be able to access buildings which are not on the ground level. She would also be able to access multiple levels of buildings. This would be in the same manner as persons with mobility difficulties are able to access multiple levels of shopping centres and of other multi-level buildings such as apartment blocks.

5. Therefore I am satisfied that Mrs Keys would be able to access buildings above ground level and on multi-levels with little or no person-to-person support on the basis the building included a lift as a modification. On this basis in relation to Mrs Keys inability to access stairs I do not consider that Mrs Keys meets the requirement under Rule 12(1)(b) of the SDA Rules.

6. I also consider that Rule 12(1)(b) of the SDA Rules has a high threshold requirement. Firstly, because the ‘person-to-person supports’ must qualify as being ‘very high’. Secondly, the statutory context of Rule 12 and the requirement that the participants functional impairment be ‘extreme’. Thirdly, because of the requirement of a decision maker to always consider the financial sustainability of the scheme.[46]

   [46] Section 3 (3)(b) NDIS Act

7. With the provision of equipment and modifications such as lift access, an electric recliner chair, an adjustable dining chair and a walker Mrs Keys’ ability to mobilise will be substantially improved. I am satisfied that Mrs Keys’ residual mobility difficulties will not require a need for person-to-person supports which I consider will be ‘very high’.

Conclusion

1. Mrs Keys does not have a very high need for person-to-person supports in undertaking mobility even with assistive technology, equipment or home modifications. Rule 12(1)(b) of the SDA Rules is not satisfied.

2. Rule 12(1) of the SDA Rules is cumulative. Having not met the requirements of Rule 12(1)(b) of the SDA Rules Mrs Keys therefore does not have and extreme functional impairment for the purposes of Rule 12 of the SDA Rules.

HIGH SUPPORT NEEDS

Rule 13 of the SDA Rules: Does Mrs Keys have very high support needs?

1. Rule 13 of the SDA Rules prescribes the criteria a participant must satisfy for the requirement of having an ‘very high support needs’. It provides as follows:

When a participant has very high support needs
(1) A participant has very high support needs if:

(a) the participant has lived in specialist disability accommodation for extended periods and living in that accommodation has impacted on the capacity of the participant to transition to alternative living arrangements and support; or
(b) the participant has a very high need for person-to-person supports, either immediately available or constant, for a significant part of the day and either:

(i) there are limitations in the availability, capacity or capability of the participant’s informal support network or risks to its sustainability; or
(ii) the participant is at risk or poses a risk to others, and that risk could be mitigated by the provision of specialist disability accommodation, having regard to the participant’s response to risk and the interaction of the participant with the environment.

(2) For the purposes of assessing whether a participant has very high support needs, the CEO may have regard to:

(a) any assessment or examination conducted in relation to the participant, including any assessment or examination requested by the CEO under paragraph 36(2)(b) or 50(2)(b) of the Act; and
(b) the daily support requirements of the participant; and
(c) any assessment tool specified by the CEO for the purposes of this paragraph; and
(d) any other matters that the CEO considers appropriate.

1. Mrs Keys has not previously lived in SDA, therefore Rule 13(1)(a) of the SDA Rules is not relevant in this review.

Does Mrs Keys have a very high need for person-to-person supports, either immediately available or constant, for a significant part of the day – Rule 13(1)(b) of the SDA Rules?

1. To satisfy Rule 13(1)(b) of the SDA Rules, Mrs Keys must satisfy the Tribunal that firstly, she has a very high need for person-to-person supports, either immediately available or constant, for a significant part of the day and secondly, that either:

   ·     there are limitations in the availability, capacity or capability of Mrs Keys’ informal support network or risks to its sustainability; or

   ·     Mrs Keys is at risk or poses a risk to others, and that risk could be mitigated by the provision of specialist disability accommodation, having regard to Mrs Keys’ response to risk and the interaction of Mrs Keys with the environment.

Does Mrs Keys have a high need for person-to-person supports, either immediately available or constant, for a significant part of the day?

1. Mrs Keys contends that she meets the requirements of Rule 13(1)(b) of the SDA Rules.

2. The Agency contends that Mrs Keys does not have a very high need for person-to-person supports, either immediately available or constant or for a significant part of the day[47]as defined by Rule 13(1)(b) of the SDA Rules. The Agency refers to the following evidence:

   [47] Closing submissions

• Mrs Keys primarily requires support with transfers and some assistance with dressing;

• The primary factor affecting Mrs Keys is the presence of stairs in her chosen rental house;

• Mrs Keys’ reliance on both formal and informal supports would decrease if she was living in residence without stairs;

• Even if Mrs Keys remained in her current property, Ms Bland only recommends 6 hours per day of support worker assistance;

• Support worker assistance for 6 hours per day does not represent a ‘significant part of the day’, and therefore does not represent a ‘very high supports need’.

  ·     Mrs Bland’s opinion is that Mrs Keys’ level of formal support is expected to reduce if she were to use appropriate assistive technology in a level dwelling without internal stairs.[48]

  [48]SFIC at 29 –31

1. The Agency discounts Mr Mak’s opinion that Mrs Keys needs care, assistance and monitoring 24 hours per day on the basis that his opinion relies on the CANS assessment tool, which is an inappropriate tool for the assessment of Mrs Keys.[49]

   [49] Refer paragraph [94]

2. In closing submissions, the Agency also referred the Tribunal to the following evidence:

   ·     Mrs Keys uses a support worker flexibly for 6 to 7 hours per day;

   ·     Only occasionally will her support worker stay overnight to support her;

   ·     The support provided by Mrs Keys’ support worker does not in its entirety relate to ‘person-to-person support’. It includes other assistance which is not person-to-person support including tasks such as cleaning, washing and taking out garbage.

3. I accept the Agency’s submission. The evidence fails to establish that Mrs Keys requires ‘person-to-person support’ either immediately available or constant, for a significant part of the day.

4. Mrs Keys’ person-to person supports are confined to approximately 6 hours per day. This support is used flexibly throughout the day, which includes overnight support on occasions. Within this 6-hour daily support period Mrs Keys receives person-to-person support in relation to her daily activities (such as self-care, showering, meals and house cleaning) and social, community and civic participation. There was no evidence before the Tribunal to suggest that these activities could not be completed within this 6-hour daily time frame.

5. I am not satisfied that 6 hours per day meets the level of what can be considered as a ‘very high need for person-to-person supports, either immediately available or constant, for a significant part of the day’. Realistically, Mrs Keys is in fact without any person-to-person supports for a significant part of the day, to the extent of approximately 18 hours per day.

Conclusion

1. Mrs Keys does not have a very high need for person-to-person supports either immediately available or constant, for a significant part of the day.

2. Rule 13(1)(b) of the SDA Rules is not satisfied. Mrs Keys therefore does not have a very high support needs for the purposes of Rule 13 of the SDA Rules.

Is Mrs Keys eligible to receive support for SDA?

1. Mrs Keys does meet the criteria under either Rule 12 or Rule 13 of the SDA Rules. On this basis, Mrs Keys does not meet the eligibility requirements prescribed under Rule 11 of the SDA Rules.

Conclusion

1. Mrs Keys is not eligible to receive funding for SDA as a support under the scheme.

Subsection 34(1) of the NDIS Act

1. As stated previously, subsection 34(1) of the NDIS Act is cumulative.

2. One of the criterion, paragraph 34(1)(f) of the NDIS Act, requires that a support funded under the scheme must be an ‘NDIS Support’.

3. Item 19 of Schedule 2 to the Transitional Rules provides that the following ‘Housing and community infrastructure’ is not generally an NDIS support:

   (b) housing for people with disability, other than participants eligible for specialist disability accommodation;

4. On this basis, funding for accommodation, other than SDA, is not permitted under the scheme as a reasonable and necessary support.

5. In this regard, I refer also to Schedule 1 to the Supports Rules, which includes the following provisions:

7.19 The NDIS will be responsible for:

(a) supports to assist a person with disability to live independently in the community, including by building their capacity to maintain a tenancy, and support for appropriate behaviour management; and

(b) home modifications for accessibility for a person in private dwellings; and

(c) home modifications for accessibility for a person in legacy public and community housing dwellings on a case-by-case basis but not to the extent that it would compromise the responsibility of housing authorities to develop, maintain and refurbish stock that meets the needs of people with disability; and

7.20 The NDIS will not be responsible for:

(a) the provision of accommodation for people in need of housing assistance, including routine tenancy support and ensuring that appropriate and accessible housing is provided for people with disability; or

(b) ensuring that new publicly-funded housing stock, where the site allows, incorporates Liveable Housing Design features; (Tribunal emphasis)

1. It is clear, that other than in circumstances of eligibility SDA, the scheme does not fund appropriate and accessible housing for people with a disability. Furthermore the availability of public funded disability accommodation and the market rental cost of such accommodation are not relevant considerations under the scheme.

2. Mrs Keys’ evidence is that she has not undertaken any follow up whatsoever with the QDOH since her application was made over 2 years ago. Such follow-up would presumably include important information in respect of Mrs Keys’ decline and that of her husband. The failure to pursue the QDOH application is unfortunate. It is also unfortunate to have relied on the representations of local real estate agents in respect of the appropriate entity for the provision of accommodation for a person in Mrs Keys’ circumstances.

3. Having found that SDA is not a reasonable and necessary support for Mrs Keys under the scheme, it remains open to Mrs Keys to pursue her application with the QDOH.

DECISION

1. Pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is affirmed.

I certify that the preceding 143 (one hundred and forty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins.

.......................

Associate

25 March 2025

Dates of hearing:

12 and 13 February 2025

Applicant:

Mrs Cara Keys

Solicitors for the Respondent:

Counsel for the Respondent:

Mills Oakley Lawyers

Mr Hartnett of Counsel