Lawson and National Disability Insurance Agency (NDIS) - [2025] ARTA 874

Lawson and National Disability Insurance Agency (NDIS) [2025] ARTA 874 (24 June 2025)
Applicant/s:  Mrs Sarah Jane Lawson
Respondent:  National Disability Insurance Agency
Tribunal Number:                2024/8015
Tribunal:General Member O Sarrinikolaou
Place:Melbourne
Date:24 June 2025

Decision:The Tribunal varies the reviewable decision as follows:
1.Mrs Lawson’s Statement of Participant Supports will include funding for the following reasonable and necessary supports:
(a)Level 1 transport; and
(b)11 hours of dietitian support.

2.The plan is to be reassessed 12 months after the new plan is implemented following this decision.
In all other respects, Mrs Lawson’s plan remains unchanged.

............................[SGD]...................................

Statement made on 24 June 2025 at 2:06pm

NATIONAL DISABILITY INSURANCE SCHEME – NDIS supports – reasonable and necessary supports – consideration of s 34 National Disability Insurance Scheme Act 2013 – s 10(1) a support is an NDIS Support, if the is support declared an NDIS support under the rules – enquiry focusses on the support, not the participant, requires a two-stage process – standard household items, appliances, tools and products – standard item is not modified or adapted to address the functional impairments of the participant – effective and beneficial and current good practice – day-to-day living costs – value for money – physiotherapy equipment - pottery, cooking, painting and/or sewing classes – at home pathology services – dental care – mental health services- short term accommodation – physiotherapy hours – occupational therapy – additional dietician hours – agreement as to part of the proceeding – decision varied.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013(Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024(Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth)
Cases
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re FSWN and National Disability Insurance Agency [2025] ARTA 114
Statement of Reasons
BACKGROUND

Mrs Lawson is aged 48 years and lives with her husband. She was granted access to the National Disability Insurance Scheme (NDIS) in 2022 based on various impairments resulting from Susac’s syndrome including hearing loss, visual and cognitive impairment, as well as severe nausea and vomiting. She applied to the Administrative Appeals Tribunal (AAT) for review of a decision made by the National Disability Insurance Agency (NDIA) to refuse her request for funding for the purchase of fruit and a vaporiser which she considers reasonable and necessary.
On 14 August 2024 a Delegate of the Chief Executive Officer of the National Disability Insurance Agency (NDIA) approved a Statement of Participant Supports (SoPS) in Mrs Lawson’s plan.[1] Mrs Lawson sought review of that decision because it did not include the requested supports. On 30 September 2024 an internal reviewer with the NDIA confirmed the decision.[2]
[1] JTB, T11.
[2] JTB, T1A and T2.
On 9 October 2024, Mrs Lawson applied to the AAT for review of the NDIA’s decision made on 30 September 2024.
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 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal. This decision and statement of reasons is made by the Tribunal.
The hearing was held on 22 and 23 April 2025 via Microsoft Teams audio. Mrs Lawson was represented by her husband, Mr J. Lawson. The NDIA was represented by Ms L. Beange of counsel who was instructed by Ms I. Goodwin from Sparke Helmore Lawyers. Representatives from the NDIA were also present during the hearing.
The Tribunal had before it the joint tender bundle (JTB) comprising 280 pages. Mrs Lawson relied on a letter from Adam Prater, which was undated, marked A46 in the JTB.
The Tribunal heard evidence from Mrs Lawson, her neurologist, Associate Professor T. Hardy, Ms H. Cole, occupational therapist and Ms H. Jager, trainer with The Stretch Lab. No witnesses were called by the NDIA.
ISSUES
In the course of the proceedings before the Tribunal, Mrs Lawson made further requests for supports. The issues before the Tribunal are whether the following supports requested by Mrs Lawson are reasonable and necessary:
·     TGA approved medical vaporiser (for medical cannabis)
·     Ongoing costs of tolerable diet
·     Consumables: throat lozenges and ear wax spray
·     NutriBullet blender, vacuum sealer and bags, fridge and/freezer
·     Physiotherapy equipment: yoga mat, massage gun, acupuncture mat, neck stretcher, back stretcher, resistance bands TheraBand and TENS machine
·     Social and recreational support
·     At home pathology services
·     Dental care
·     Mental health services
·     Short term accommodation
·     Hearing assistive technologies, maintenance and related costs
·     Physiotherapy and The Stretch Lab hours
·     Occupational therapy
·     Additional dietician hours
THE LEGAL FRAMEWORK
When an individual is granted access to the National Disability Insurance Scheme, the next step is for the Chief Executive Officer of the NDIA to facilitate the preparation of the individual’s plan in accordance with chapter 3 of the National Disability Insurance Scheme Act 2013 (the NDIS Act). Section 33 sets out the matters which must be included in the participant’s plan before it is approved. The plan must include a statement of goals and aspirations, and a statement of participant supports. The statement of participant supports must specify the general supports and the reasonable and necessary supports to be funded under the NDIS, as well as the date or circumstances in which the plan will be reviewed and the management of the funding.
Section 34(1) of the NDIS Act sets out the criteria which must be satisfied before a support is considered reasonable and necessary. The NDIS Act, including section 34, was amended by the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (the Amending Act) which commenced on 3 October 2024. The amendments were significant and apply to statements of participant supports that are varied or approved after 3 October 2024. Relevantly, the amendments also apply to the Tribunal when reviewing decisions made prior to 3 October 2024.[3] Therefore, the NDIS Act as amended applies in this review.
[3] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 Item 129 of Part 3 of Schedule 1.
Section 34 of the NDIS Act provides:
(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 participantmeets 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.
(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).
Section 10 was inserted into the NDIS Act and provides the definition of NDIS support. Subsection 10(1) states that a support is an NDIS support, if the support has been declared an NDIS support under the rules made for the purposes of this subsection. Subsection 10(2) allows the Minister to make rules to declare a support an NDIS support and subsection 10(4) allows the Minister to make rules declaring that a support is not an NDIS Support. The National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (the Transitional Support Rules) contains the support rules for the purpose of section 10 of the NDIS Act. Schedule 1 to the Transitional Rules specifies the supports that are NDIS supports and Schedule 2 specifies the supports that are not NDIS Supports.
Section 35 of the NDIS Act permits rules to be made in connection with the funding or provision of reasonable and necessary supports or general supports. The rules relevant in this review are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules).
Relevantly, rule 3 of the Support Rules relates specifically to subsections 34(1)(c) and (d) of the NDIS Act and provide:
Value for money
3.1     In 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
3.2     In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a)     published and refereed literature and any consensus of expert opinion;
(b)     the lived experience of the participant or their carers; or
(c)     anything the Agency has learnt through delivery of the NDIS.
3.3     In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary, seek, expert opinion.
Rule 5 of the Support Rules sets out the general criteria for supports:
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; or
(b)     it is not related to the participant’s disability; or
(c)     it duplicates other supports delivered under alternative funding through the NDIS; or
(d)     it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(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.
In McGarrigle v National Disability Insurance Agency[4] Mortimer J (as her Honour then was) observed:
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.
[4] [2017] FCA 308.
The phrase ‘reasonable and necessary’ is not defined in the NDIS Act. In discussing the phrase in McGarrigle Mortimer J stated:
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”…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”.[5]
[5] [2017] FCA 308 at [43].
In National Disability Insurance Agency v WRMF[6], the Full Court of the Federal Court also considered the meaning of reasonable and necessary supports and said:
149. 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…
150.…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.
151.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. It is not accidental, in our opinion, that Parliament has chosen the term 'participant' to describe individuals who will receive funded support: the choice of that term reinforces, as we have sought to explain, that the driving objective of this Act is the holistic, improved and increased participation by persons with disability in the life of their communities, and in life itself.
[6] [2020] FCAFC 79.
In addition to the provisions in the NDIS Act, the Transitional Support Rules and the Support Rules, the Tribunal is obliged to consider the relevant Operational Guidelines relating to reasonable and necessary supports. The Operational Guidelines contain governmental guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[7]
[7] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
PRELIMINARY MATTERS
In his opening submissions to the Tribunal, Mr Lawson expressed concerns about Mrs Lawson’s experience with the NDIA. He submitted that there were delays in processing her access application and then delays in advising Mrs Lawson that her application for access had been approved. He also submitted that the impairments for which Mrs Lawson was granted access were incorrectly recorded which impacted her ability to access reasonable and necessary supports. Mr Lawson submitted that the access application was based on the impairments arising from Susac’s syndrome, including hearing loss, cognitive impairments and constant daily nausea and vomiting which impact all aspects of Mrs Lawson’s life. He insisted that this issue be resolved by the Tribunal because Mrs Lawson’s disability has never been assessed properly.
Mr Lawson submitted that Mrs Lawson’s attendances at The Stretch Lab were previously funded through her plan. At some stage after October 2024, a decision was made to disallow the Stretch Lab attendances. However, the decision was not communicated to The Stretch Lab, Mrs Lawson or her plan manager and Mrs Lawson has incurred a debt because she continued to attend the facility. Mr Lawson submitted that the debt should be settled by the NDIA.
Mr Lawson also expressed dissatisfaction with the absence of a plan implementation meeting despite multiple requests and enquiries.
In response to the concerns raised by Mr Lawson, Ms Beange on behalf of the NDIA confirmed that the impairments resulting from Susac’s syndrome were not in dispute (at least for the purposes of this proceeding) and the NDIA accepts that Mrs Lawson experiences hearing loss, cognitive impairment and daily nausea and vomiting. Ms Beange submitted that the other issues raised by Mr Lawson are not matters the Tribunal has jurisdiction to determine. The Tribunal agrees.
While sympathetic to Mr and Mrs Lawson, the reviewable decision before the Tribunal concerns approval of Mrs Lawson’s SoPS and specifically whether the supports she has requested are reasonable and necessary. While the Tribunal may need to consider the impairments for which Mrs Lawson was granted access to the NDIS, this is not an application for access. Mr and Mrs Lawson’s concerns about the lack of communication and implementation meetings, and the resulting debt fall into the category of service delivery issues and are not within the scope of the Tribunal’s jurisdiction. It is open for Mr and Mrs Lawson to raise their concerns directly with the NDIA.
Ms Beange informed the Tribunal that the NDIA have agreed to fund Level 1 Transport and 11 hours of dietician support. After the hearing, the parties provided a written agreement confirming that the parties agreed to vary the reviewable decision to include Level 1 Transport and 11 hours of dietician support. The Tribunal will give effect to this agreement as it relates to part of the proceeding, in accordance with subsection 103(3) of the Administrative Review Tribunal Act 2024.
MRS LAWSON’S CASE

Mrs Lawson was not legally represented at the hearing and her case was presented with a mix of evidence and submissions. Prior to the hearing several documents were prepared by Mr and Mrs Lawson to explain her disability and support needs. The evidence and submissions were reiterated during the hearing. The Tribunal has summarised the evidence about her disability and history below for context. The evidence and submissions relating to specific supports will be detailed below as the Tribunal considers each individual support requested by Mrs Lawson.
Mrs Lawson worked in hospitality and lived a very active lifestyle prior to the onset of Susac’s syndrome.[8] She was managing shift work, including night shifts while completing a jewellery course at Tafe. She began to experience frequent migraines, sleeping disturbances, fatigue and visual disturbances. Her colleagues reported changes in personality. In 2010 she was eventually diagnosed with Susac’s syndrome, a rare inflammatory autoimmune disease which caused damage to her brain, eyes and ears. Mrs Lawson was treated with intensive immunosuppressant therapies. As a result of her initial attack of Susac’s syndrome and the intense treatment which followed, Mrs Lawson has been experiencing daily nausea and vomiting since 2011.[9] Treatment to date has been unsuccessful. Mrs Lawson now relies on medically prescribed cannabis to manage the nausea.
[8] JTB, A39.
[9] JTB, A20.
In her written submissions and during the hearing, Mrs Lawson said that the constant daily nausea and vomiting impacts all aspects of her life. She struggles to leave the house, and her social interaction is limited to her doctors and support workers. In her statement, she reported that that she has vomited in inappropriate situations including, at work, on public transport, at the gym, in a shopping centre, at a family Christmas function and at her grandmother’s funeral.[10]
[10] JTB, A39, page 174-175.
Mr Lawson told the Tribunal that the frequency of vomiting has caused tension in Mrs Lawson’s body resulting in neck, back and leg pain. Mrs Lawson frequently wakes abruptly to vomit, the disturbed sleep and the strain of the frequent vomiting causes fatigue which further impacts her ability to leave her house. Mrs Lawson stated that she is unable to hold down food and the only nutritional food source she can tolerate is smoothies made from fresh fruit. She stated that the chronic daily nausea and vomiting was impacting both her physical and emotional wellbeing.[11]
[11] JTB, A42.
Mr and Mrs Lawson submitted that all the requested supports are directly related to her disability and therefore, should be funded by the NDIS. Mr Lawson acknowledged the limitations resulting from the legislative amendments, however, he and Mrs Lawson submitted that an exception should be made because the requested supports are directly related to Mrs Lawson’s disability.
EVIDENCE
ASSOCIATE PROFESSOR T. HARDY
Associate Professor Hardy is Mrs Lawson’s neurologist. He completed the medical report as part of Mrs Lawson’s application to access to the NDIS[12] and a report dated 29 November 2024.[13] A/Professor Hardy reported that Susac’s syndrome has caused pathology in the area postrema of the brainstem which has led to the vomiting which he described as chronic, refractory episodic since 2011.[14] He supported Mrs Lawson’s intake of fruit smoothies which “seem to result in adequate nutrition” and which “trigger fewer episodes of vomiting.” A/Professor Hardy supported Mrs Lawson’s request for necessary equipment to assist in the preparation of the smoothies and noted that the increased costs of living and Mrs Lawson’s inability to work has meant that her special diet is no longer affordable. He reported that “in order to maintain her physical fitness and cope with symptoms of pain, I also think it is important that she be supported in her ongoing physiotherapy at The Stretch Lab and access to the hub.”[15]
[12] JTB, A2.
[13] JTB, A20.
[14] JTB, A20.
[15] JTB, A20.
In evidence before the Tribunal, A/Professor Hardy said that Susac’s syndrome affects patients differently, but it does affect the eyes, ears and causes cognitive impairment which are the key features of the diagnosis. The chronic nausea and vomiting, with associated fatigue, was the most disabling for Mrs Lawson. He gave evidence that Mrs Lawson was referred to gastroenterologists for the nausea and vomiting and had tried pharmacological agents without success.
In response to questions from Ms Beange, A/Professor Hardy said that there were two aspects of Mrs Lawson’s fatigue. It is a primary component of the Susac’s syndrome, and it is also the result of Mrs Lawson’s vomiting. When asked to offer an opinion about the pain Mrs Lawson was experiencing, he could not be certain whether it was primarily the result of Susac’s syndrome. He observed that there were symptoms in Mrs Lawson’s left arm because of Susac’s syndrome but he could not be certain that Susac’s was the primary cause of the current reports of pain. In response to questions about the benefits of the fruit smoothies and the physiotherapy, A/Professor Hardy said that he had not recommended either nor was he overseeing the exercise program. He said that he was supporting the requests because Mrs Lawson reported the fruit smoothies and the physiotherapy to be beneficial for her.
MS H. COLE
Ms Cole is an occupational therapist who assessed Mrs Lawson. Ms Cole prepared two reports dated 31 January 2025[16] and 2 April 2025.[17] She gave evidence that she assessed Mrs Lawson in a 2-hour session and subsequent telephone conversations. She explained that her assessment consisted of administering the Abbreviated Living Skills Profile (LSP-16) which required Mrs Lawson’s response to a series of questions. Ms Cole then assessed Mrs Lawson’s functional capacity through a structured interview. Ms Cole reported that Mrs Lawson’s scores in the LSP-16 demonstrate that her “disability has significantly impacted her function in activities of daily living over the preceding 3 months.”[18] In assessing Mrs Lawson’s functional capacity, Ms Cole reported that Mrs Lawson had lost contact with her friends and experienced difficulties keeping arrangements due to the unpredictability of her vomiting, and social environments are overwhelming for Mrs Lawson. She reported that interaction with the community is limited because of Mrs Lawson’s inability to drive, and she has lost confidence in her ability to communicate because of her social isolation.
[16] JTB, A29.
[17] JTB, A33.
[18] JTB, A29, page 131.
Ms Cole reported that Mrs Lawson’s chronic vomiting and consequent fatigue impacts her ability to complete tasks such as cooking, shopping and household tasks. Mrs Lawson also struggles to attend to personal care tasks consistently.
Ms Cole gave evidence that Mrs Lawson has a sedentary lifestyle because of pain, loss of muscle tone and strength, and loss of stamina which impacts Mrs Lawson’s ability to perform activities of daily living, including sustaining a clean and tidy home which is one of her NDIS goals. Mrs Lawson’s inability to complete such tasks was increasing her stress, thereby, increasing her vomiting episodes. When asked about her recommendations for Mrs Lawson, Ms Cole said that sessions with The Stretch Lab were recommended because it assisted her physically but was also allowing for social interaction. Medicinal marijuana which is prescribed, is helpful for sleep thereby, allowing Mrs Lawson to complete the tasks she wishes to. Exercise equipment allows Mrs Lawson to complete the exercises prescribed for her, and gives a sense of achievement, structure and focus. Ms Cole expressed concern about the long-term impact on Mrs Lawson’s mental health because of her isolation.
In cross examination, Ms Cole acknowledged that the supports she recommended were based on the benefits as reported by Mrs Lawson. She did not have any knowledge of The Stretch Lab or the qualifications of the staff that were providing the service. Ms Cole did not assess Mrs Lawson’s physical strength or balance and said that such assessments are completed by physiotherapists. Ms Cole opined that exercise in some form would be beneficial both physically and mentally for someone with a sedentary lifestyle.
In response to questions from Ms Beange, Ms Cole said that Mrs Lawson is able to engage when out in a social or recreational setting. However, there are barriers to her attending such as transport. Mrs Lawson does not drive and would benefit from additional support hours that can be used flexibly for social and domestic purposes.
MS H. JAGER, THE STRETCH LAB
Ms Jager is part owner in The Stretch Lab, a clinic that provides assisted stretch therapy. Ms Jager prepared a letter in support of Mrs Lawson’s attendance and participation in stretch therapy.[19] Ms Jager reported that in the initial assessment, Mrs Lawson demonstrated extreme muscle tightness, poor concentration and coordination, frequent cramps/spasticity, reluctant muscle movement, congested connective tissue and associated pain, muscle aches, muscle weakness and tenderness, reluctant mobility in joints and widespread stiffness and considerable unsteadiness and imbalance in legs and hips.
[19] JTB, A34.
In her letter, Ms Jager reported that over the course of treatments, Mrs Lawson has reported that the treatments have been helpful for body aches, tightness and overall wellbeing, greater relaxation and lengthening of muscles to manage pain for a short period of time; she shows a response immediately after treatments in terms of mobility, flexibility, balance and strength, her mood improves during sessions and Mrs Lawson has reported more sound sleep.
In cross-examination, Ms Jager said that she is one of four trainers who have worked with Mrs Lawson. She and her colleagues have completed courses in anatomy, physical therapy or similar. Ms Jager and her business partner, Nat, are registered with AUS active. To remain current with their registration, Ms Jager and Nat require continuing education to maintain 20 points. Staff rely on their individual physiology backgrounds, together with the training modules completed at The Stretch Lab. Ms Jager gave evidence that stretch therapy is different to physiotherapy and exercise physiology and is not personal training or massage therapy. She said that stretch therapy would likely be part of a personal training program.
In describing the stretch therapy, Ms Jager gave evidence that the aim is body conditioning, but strength and balance may also be improved. In assessing their clients, Ms Jager said they don’t use machinery and instead feel, touch and speak to clients. The program for the session will depend on how the client is feeling, what the person has been doing and what the person needs on the day. The staff at The Stretch Lab speak to clients about their goals. Mrs Lawson’s goal was to be able to go for a walk alone. No time frames are set for achieving the goals. Ms Jager told the Tribunal that benefits of stretch therapy have been well researched and there are countless articles confirming those benefits.
RESPONDENT’S SUBMISSIONS
The NDIA did not call witnesses at the hearing and relied on the written submissions set out in the Respondent’s Statements of Facts, Issues and Contentions[20] and a submission in reply to Mrs Lawson’s updated list of requested supports.
[20] JTB, R1.
Ms Beange submitted on behalf of the NDIA that the threshold question for the Tribunal is whether each of the requested supports is an NDIS support. This enquiry focusses on the support, not the participant and requires a two-stage process as set out by Senior Member French in Re FSWN.[21] The Senior Member explained that the first stage requires the Tribunal to determine if the requested support is of a character that falls within Schedule 2 if the answer is yes, that is the end of the enquiry, and the support cannot be funded. If the answer is no, the Tribunal must then determine whether the requested support falls within a category of support in Schedule 1. If the answer is no, the support cannot be funded. If the answer is yes, the Tribunal must proceed to consider the other criteria in subsection 34(1) of the NDIS Act.[22]
[21] Re FSWN and National Disability Insurance Agency [2025] ARTA 114.
[22] Re FSWN and National Disability Insurance Agency [2025] ARTA 114 at [43].
Ms Beange submitted that with the exception of the capacity building/therapeutic supports requested by Mrs Lawson, namely, physiotherapy, occupational therapy and dietician hours, all the other requested supports are not an NDIS support under Schedule 2 to the Transitional Support Rules and therefore, cannot be funded.
Ms Beange submitted that while physiotherapy, occupational therapy and dietetics are an NDIS support under item 34 of Schedule 1 to the Transitional Support Rules, Mrs Lawson’s current plan includes 10 hours of physiotherapy, 15 hours of occupational therapy, 12 hours of speech pathology and 20 hours of Level 2 therapy assistant. These therapeutic supports can be used flexibly.
Ms Beange informed the Tribunal that the existing budget has not been utilised by Mrs Lawson. She submitted that there was no evidence of regular engagement with either a physiotherapist or an occupational therapist, there was no evidence of a program or the goals to be achieved and the time frame for the achievement of those goals. Ms Beange referred to the letter of Mr Prater and submitted that while he recommends access to weekly physiotherapy, no further details are provided. Similarly, Ms Cole reports that Mrs Lawson would benefit from seeing an occupational therapist. However, she does not provide an opinion on the frequency and the specific goals that would likely be achieved.
In circumstances where the existing budget has not been utilised, the absence of clinical justification for the additional hours sought, Ms Beange submitted that the Tribunal could not be positively satisfied that the requested supports were reasonable and necessary and specifically that the additional hours would assist Mrs Lawson to pursue her goals and represent value for money.
CONSIDERATION
TGA approved medical vaporiser (for medical cannabis)
Mrs Lawson has been prescribed medical cannabis for the treatment and management of her nausea and insomnia. She requests a medical vaporiser to consume the medical cannabis. Subitem 4(a) in Schedule 2 refers to day-to-day living costs – lifestyle and includes cigarettes, vapes and smoking paraphernalia, and legal cannabis. The Tribunal is satisfied that vape is the colloquial name for a vaporiser. Therefore, the vaporiser is not an NDIS support even if it is intended to be used for legal cannabis. Paragraph 34(1)(f) of the NDIS Act is not satisfied. It follows that the vaporiser is not a reasonable and necessary support and cannot be funded in Mrs Lawson’s plan.
Ongoing costs of tolerable diet
Mrs Lawson confirmed in evidence she is requesting funding to assist with the costs of fruit which she uses for her smoothies. Subitem 3(a) in Schedule 2 refers to day-to-day living costs – food and groceries and includes groceries including all food, beverage, cleaning, household and health products. The Tribunal is satisfied that the requested support is not an NDIS support and paragraph 34(1)(f) of the NDIS Act is not satisfied. Therefore, the ongoing cost of fruit is not reasonable and necessary and cannot be funded.
Consumables: throat lozenges and ear wax spray
In evidence, Mrs Lawson confirmed that her request for consumables includes funding for lozenges such as Difflam and ear wax spray that she would purchase from her audiologist and Hearing Australia. Prior to October 2024, Mrs Lawson said she was able to use funding in her plan for products purchased through Hearing Australia. Subitem 4(s) in Schedule 2 refers to the category of day-to-day living costs - lifestyle and includes non-prescription medicines, sunscreens, weight loss products, vitamins, sport and athletic supplements and homeopathic medicines. Subitem 12(d) in Schedule 2 deals with the category of Health and specifies the following supports: pharmaceuticals (including prescription medicines and non-prescriptive medicines), biological medicines, vaccines, sunscreens, weight loss products, vitamins, sport and athletic supplements and homeopathic medicines.
The Tribunal is satisfied that the throat lozenges and the ear wax spray are non-prescriptive medicines and are not NDIS supports under subitems 4(s) and 12(d). Therefore, paragraph 34(1)(f) of the NDIS Act is not satisfied and the requested supports cannot be funded.
NutriBullet blender, vacuum sealer and bags, fridge and freezer
In her evidence, Mrs Lawson said that she requires the NutriBullet for blending and preparing her smoothies. The vacuum sealer and bags will allow her to store the fruit and refrigerate and freeze unused fruit and prepared smoothies which she can access when unwell. In cross-examination, Mrs Lawson stated that each item is available for purchase at an electrical retailer. They are standard items that are not modified or adjusted. Mrs Lawson said she can operate the items independently.
Subitem 1(i) of Schedule 2 identifies the category of Day-to-day living costs – accommodation and household and the supports include standard household items, appliances, tools and products. Section 4 of the Transitional Support Rules defines standard item as an item that is not modified or adapted to address the functional impairments of the participant. On the evidence of Mrs Lawson, the Tribunal is satisfied that the NutiBullet blender, vacuum sealer and bags, fridge and freezer have not been modified or adapted for her and are available at any electrical retailer. The items sought are standard household items and appliances, and therefore, not NDIS supports under subitem 1(i). As paragraph 34(1)(f) of the NDIS Act is not satisfied, the requested supports are not reasonable and necessary and cannot be included in Mrs Lawson’s SoPS.
Physiotherapy equipment: yoga mat, massage gun, acupuncture mat, neck stretcher, back stretcher, resistance bands TheraBand and TENS machine
Mrs Lawson gave evidence that she uses the requested equipment to complete the stretching program available on The Stretch Lab hub. Her life is sedentary, and the equipment allows her to exercise at home. She said in cross examination that the requested supports are available from retail stores and none of the items are modified. She does not experience difficulties using the equipment. In evidence, Ms Jager endorsed the availability of the equipment at home. There was no evidence before the Tribunal that the equipment was recommended by a physiotherapist even though Mrs Lawson described the request as “physiotherapy equipment.”
Item 4 of Schedule 2 of the Transitional Support Rules refers to the category of day-to-day living costs – lifestyle. Subitem (q) includes general health, fitness, social or recreational activity costs or services. Subitem (r) refers to membership and entry to a recreational club and standard gym equipment. The Tribunal is satisfied that the equipment sought by Mrs Lawson falls in the category of general health and fitness costs and therefore, is not an NDIS support in accordance with subitem 4(q). The equipment can also accurately be described as standard gym equipment and therefore, not an NDIS support under subitem 4(r) of Schedule 2. It follows that paragraph 34(1)(f) of the NDIS Act is not satisfied and the requested supports are not reasonable and necessary.
Social and recreational supports
There was some confusion prior to the hearing as to what Mrs Lawson was seeking with this request. In evidence, she confirmed that her current plan includes funding for support workers to assist her to attend and participate in the classes. However, she requires financial assistance to pay for the classes such as sewing, pottery and cooking, and the costs of transport to attend the classes.

Subitem 4(h) in Schedule 2 refers to the category of day-to-day living costs - lifestyle and includes as supports, costs associated with recreational sports and activities. Subitem 4(q) specifies general health, fitness, social or recreational activity costs or services. The Tribunal is satisfied that the cost of classes requested by Mrs Lawson are costs of recreational activities and therefore, not an NDIS support under subitems (h) and (q). As the requested supports are not an NDIS support, paragraph 34(1)(f) is not satisfied and the supports cannot be included in Mrs Lawson’s SoPS.
The Tribunal notes that the NDIA agreed during this proceeding to fund Level 1 Transport for Mrs Lawson. There was no contention or evidence presented by Mr and Mrs Lawson to support transport at a higher level.
At home pathology services
Mrs Lawson gave evidence that this request is for the cost of a pathologist to attend her home because the impact of her vomiting prevents her from attending for blood tests. Her compromised immune system exposes her to a higher risk of infections which may further impact her health. Item 12 in Schedule 2 of the Transitional Support Rules deals with the category of health. Subitem (a) includes supports for the diagnosis, early intervention and clinical treatment of health and dental health conditions, including ongoing or chronic health conditions. Subitem (b) refers to diagnostic assessments and screening services and subitem (l) refers to hospital in home services.
The Tribunal is satisfied that in home pathology services fall into the category of supports for diagnosis under subitem (a), diagnostic assessments under subitem (b) and hospital in home services under subitem (l). The Tribunal finds that in home pathology services are not an NDIS support in accordance with item 12 of Schedule 2 and paragraph 34(1)(f) of the NDIS Act is not satisfied. Therefore, the requested support is not reasonable and necessary and cannot be included in Mrs Lawson’s SoPS.
Dental care
Mrs Lawson gave evidence that the acid in her mouth because of the frequent vomiting will ultimately have a detrimental effect on her teeth. She requires the cost to attend a dentist for an assessment and if restorative or preventative work is recommended, funding should be included in her plan to pay for that dental work. Subitem 12(a) in Schedule 2 of the Transitional Support Rules deals with the category of health and includes supports for the diagnosis, early intervention and clinical treatment of health and dental health conditions. Therefore, the dental care sought by Mrs Lawson is not an NDIS support under Schedule 2. It follows that paragraph 34(1)(f) of the NDIS Act is not satisfied and the requested support is not reasonable and necessary. It cannot be included in Mrs Lawson’s SoPS.
Mental health services
Mrs Lawson gave evidence that she seeks funding for an appropriately qualified professional for the purposes of diagnosis and treatment for mental health conditions arising from the Susac’s syndrome and the challenges she has experienced navigating the NDIS. She said that she has never attended a professional nor has a mental health plan been prepared for her. Item 13 of Schedule 2 deals with the category of mental health and subitem (d) identifies supports related to mental health that are clinical in nature. Mrs Lawson’s request for mental health services for the purposes of diagnosis and treatment is clinical in nature and therefore, not an NDIS support under subitem 13(d). As paragraph 34(1)(f) of the NDIS Act is not satisfied, the requested support is not reasonable and necessary and cannot be funded.
Short term accommodation
Mrs Lawson told the Tribunal that she is requesting funding for the hire of a campervan and the costs of a camp site or some type of accommodation. She and Mr Lawson would attend and travel together, ideally in nature and this would serve as an escape from home, her usual environment which she described as her ‘vomit prison.’ In the documentary evidence prepared by Mrs Lawson, she stated that accommodation for people with a disability is not suitable for her needs and not what she intends.
Item 6 of Schedule 2 of the Transitional Support Rules refers to the category of supports related to day-to-day living costs – travel and transport. Subitem (a) identifies cruises, holiday packages, holiday accommodation, and airfares, including interstate and overseas travel, and passports, visas, activities and meals included in travel. Subitem (b) includes vehicles, including motor vehicles, motorbikes, watercraft, all-terrain vehicles, standard bikes and scooters, and other recreational vehicles.
The Tribunal is satisfied that Mrs Lawson’s request is for holiday accommodation and therefore, not an NDIS support under subitem 6(a) of Schedule 2. Her request for the hiring of a campervan which the Tribunal is satisfied is a recreational vehicle is covered under item 6(b) and also not an NDIS support. It follows that paragraph 34(1)(f) of the NDIS Act is not satisfied and the requested support is not reasonable and necessary.
Hearing assistive technologies, maintenance and related costs
In her list of requested supports, Mrs Lawson requested that the NDIS cover the cost of annual service fees and other related maintenance costs, cost of cleaning equipment and ear wax sprays, as well as hearing tests and any assistive technology recommended by the audiologist. The Tribunal notes that this support was not pursued during the hearing and appears to be a late addition to the requested supports. Ms Beange submitted that there was insufficient detail about the supports requested in this category and submitted that Mrs Lawson had $15,000 in her consumables budget which could be used to pay for costs relating to her hearing aids.
Mr G. Bristow, an audiologist with Hearing Australia prepared a letter dated 17 December 2024.[23] Mr Grant suggested that Mrs Lawson would benefit from an assistive fire alarm and that “Hearing Australia can arrange a quote” or Mrs Lawson “may benefit from this to be arranged by an occupational therapist so that the device can best suit her home.”[24] There was no quote or an assessment by an occupational therapist before the Tribunal. There were no details of the maintenance costs, cleaning equipment or hearing tests that Mrs Lawson sought to be funded.
[23] JTB, A23.
[24] JTB, A23.
Item 12 of Schedule 2 concerns the category of Health. Subitem (p) refers to hearing services or supports provided by the Hearing Australia Program. Item 20 of Schedule 1 of the Transitional Support Rules refers to “hearing equipment directly related to a participant’s permanent hearing impairment that is not provided through the Hearing Services Program.” There is insufficient evidence to allow the Tribunal to make a positive finding that the requested supports are an NDIS support. Therefore, paragraph 34(1)(f) of the NDIS Act is not satisfied.
Physiotherapy and The Stretch Lab
In the documents lodged by Mrs Lawson, she requested “a significant increase in physiotherapy and Stretch Lab (not allied health).” Mr Lawson submitted that 10 hours of physiotherapy per year is insufficient. Mrs Lawson wakes up and vomits at 4am. The frequency of vomiting has caused neck, back and leg pain. She requires at least one or two hours per week. Mrs Lawson said that attending The Stretch Lab was very beneficial for both her physical and emotional wellbeing and requests allied health physiotherapy as well as The Stretch Lab sessions. It became clear to the Tribunal that although Mrs Lawson requests a significant increase in physiotherapy hours, it is her intention to use those hours to attend The Stretch Lab. The Tribunal will consider each support separately.
Physiotherapy
There was no dispute that physiotherapy falls into the category of therapeutic supports in item 34 of Schedule 1 to the Transitional Support Rules and therefore, is an NDIS support. However, that is not the end of the enquiry. The Tribunal must consider whether the physiotherapy sought satisfies all the criteria in subsection 34(1) of the NDIS Act.
The first question for the Tribunal is whether a significant increase in physiotherapy hours is necessary to address the needs arising from the impairment in relation to which Mrs Lawson met the disability requirements in accordance with section 34(1)(aa) of the NDIS Act. Ms Beange agreed on behalf of the NDIA that the frequency of vomiting would inevitably result in some pain and discomfort which has been recognised by the NDIA in approving 10 hours of physiotherapy. Mrs Lawson gave evidence that her neck, back and leg pain has now developed into nerve pain. She confirmed in evidence that she had not consulted her doctor about the nerve pain. There was no evidence before the Tribunal detailing any examinations or assessments to identify the source of the pain, diagnosis or whether the pain is amenable to treatment. A/Professor Hardy was unable to comment on the source of the pain although he acknowledged that Susac’s syndrome has resulted in pain in Mrs Lawson’s left upper limb. He was unable to confirm that the pain Mrs Lawson now experiences is a consequence of Susac’s syndrome.
In response to questions from Ms Beange, Mrs Lawson gave evidence that she had spoken to her general practitioner about her pain about 8 or 10 years ago and a referral to a physiotherapist was recommended for 5 sessions which Mrs Lawson said was “highly inappropriate.” In circumstances where Mrs Lawson has not sought medical intervention or assessment for what now appears to be more widespread and increased pain, the Tribunal is not satisfied, on balance, that a significant increase in physiotherapy hours is necessary to address the needs arising from the impairment for which she was granted access to the NDIS, namely visual, hearing and cognitive impairments, as well as fatigue and discomfort from the frequent daily nausea and vomiting. Therefore, paragraph 34(1)(aa) is not met. It follows that additional physiotherapy hours are not reasonable and necessary in accordance with subsection 34(1) of the NDIS Act and cannot be included in Mrs Lawson’s SoPS.
The Stretch Lab
Mrs Lawson has consistently stated that her attendances at The Stretch Lab have been beneficial for her physical and mental health. Prior to October 2024, she was attending three times each week and since she stopped attending has noticed the decline in her overall wellbeing.
Ms Jager observed the benefits in Mrs Lawson including “greater relaxation and lengthening in muscles to manage pain for a short period of time, a positive response immediately after treatment in mobility, flexibility, balance and strength, and pain is managed during her treatments and her mood improves during her sessions.”[25] Ms Jager gave evidence that there are publications detailing the benefits of stretch therapy. However, there was no independent evidence to confirm the long-term therapeutic benefits of stretch therapy before the Tribunal.
[25] JTB, A34.
Ms Jager gave evidence that the assistive stretch therapy is different to exercise physiology and personal training. The aim of the therapy is body conditioning that may also improve strength and balance. The Tribunal understood that the client’s presentation on the day determines what is appropriate as opposed to developing a personalised program after a comprehensive assessment at the outset. Ms Jager told the Tribunal that Mrs Lawson found The Stretch Lab independently and the staff do not provide progress reports to a treating doctor or allied health professional.
Having heard the evidence of Ms Jager, the Tribunal views the assisted stretch therapy as a low impact exercise regime similar to pilates or yoga or a conditioning class which is more accurately described as a general health or fitness cost in the category of a day-to-day living cost relating to lifestyle under subitem 4(q) of Schedule 2 of the Transitional Support Rules. The Tribunal finds the stretch therapy is not an NDIS support and therefore, paragraph 34(1)(f) of the NDIS Act is not satisfied. It follows that the attendance to The Stretch Lab is not reasonable and necessary and cannot be included in Mrs Lawson’s SoPS.
Occupational Therapy
Mr Lawson submitted that weekly or fortnightly sessions of occupational therapy are reasonable and necessary to provide her with strategies to deal with her disability and provide strategies and support to help her engage with the community and leave the house. In evidence, Mrs Lawson said she attended Ms Cole for the purposes of this proceeding. She stated that she was not aware there was funding available to attend an occupational therapist regularly. Ms Cole recommended occupational therapy but did not recommend a specific number of hours or offer an opinion about the frequency of engagement. Ms Cole did not give evidence that the current funding was inadequate.
In circumstances where Mrs Lawson has not accessed the available budget for occupational therapy, and in the absence of evidence of a program detailing the goals to be achieved, and expected time frames, the Tribunal is not satisfied, on balance, that additional hours represent value for money under paragraph 34(1)(c) of the NDIA Act. Therefore, the requested support is not reasonable and necessary under subsection 34(1) of the NDIS Act.
Dietician
Mr Lawson was referred to Ms M. Faulks, dietician in December 2024. Ms Faulks conducted an initial assessment of Mrs Lawson on 12 December 2024 and provided a report dated 24 December 2024.[26] Ms Faulks also prepared two reports dated 14 January 2025.[27] Ms Faulks reported that Mrs Lawson presents with inadequate oral intake of energy and protein, poor meal regularity, suboptimal intake of iron, calcium, B vitamins and omega-3s, excessive fruit/fruit juice intake and lack of food and nutrition knowledge.[28] Ms Faulks prepared a plan and outlined a range of goals for Mrs Lawson to increase her energy and protein intake to assist her to meet her NDIS goals. Ms Faulks recommended 11 hours of dietetic services for initial assessment, review sessions and progress reporting. She also recommended an additional 11 hours for review consultations and resource development. Mrs Lawson gave evidence that she attended the dietician for the purpose of report writing with some consultations to review progress with the recommendations made by Ms Faulks. Mrs Lawson said that she has tried various powders and drinks, as well as recipes recommended by Ms Faulks.
[26] JTB A24.
[27] JTB A26 and A27.
[28] JTB A24.
Mrs Lawson requested additional hours to permit a session every 3 weeks, initially, and that frequency would taper off over time. The report from Ms Faulks shows that an assessment has taken place, and an implementation plan prepared. Consultations with Mrs Lawson have commenced. It appears that the first 11 hours recommended by Ms Faulks have been utilised and funded with Mrs Lawson’s existing capacity building supports. The NDIA have agreed to fund a further 11 hours as recommended by Ms Faulks for review consults and resource development.[29] There is no evidence before the Tribunal to justify additional hours.
[29] JTB, A24.
The Tribunal is satisfied that the dietetics support is an NDIS support under item 34 of Schedule 1. However, as Mrs Lawson has only recently begun to access the services of the dietician, no progress reports have been prepared and Ms Faulks has not recommended additional hours at this stage. Ms Faulks recommended 22 hours and 11 have been utilised. The NDIA have agreed to fund 11 hours which is entirely reasonable on the evidence. The Tribunal is not satisfied that additional hours represent value for money under paragraph 34(1)(c) of the NDIA Act. Therefore, additional dietician hours are not reasonable and necessary.
CONCLUSION
At the conclusion of the hearing, Ms Beange requested an opportunity to seek instructions and to provide submissions to the Tribunal about the duration of Mrs Lawson’s plan. Ms Beange submitted that a 12-month plan was appropriate in this case. Mr and Mrs Lawson were given the opportunity to respond to the NDIA’s submission. There was no dispute that a 12-month plan is appropriate and in the circumstances of this case, the Tribunal agrees.
In the course of the proceeding, the NDIA agreed to fund Level 1 Transport and 11 hours of dietician support. After the hearing, the NDIA’s representative confirmed in writing that it was the NDIA’s preference that the Tribunal vary the decision under review to include the agreed transport and dietician hours. Mr and Mrs Lawson were invited to respond and confirmed in writing that they had nothing to add. On 18 June 2025, the parties provided signed terms of agreement in accordance with subsection 103(4) of the Act and requested that the Tribunal give effect to the agreement as to part of the proceeding. The Tribunal is satisfied that the variation sought by the parties is within the powers of the Tribunal.
With the exception of the agreed supports relating to travel and dietetics, the Tribunal has not changed the decision under review. The Tribunal is sympathetic to Mrs Lawson whose impairments are having a significant impact on her life and that most of the requested supports have previously been beneficial for her. However, the NDIA and the Tribunal are bound to apply a very strict legislative framework that does not allow for exceptions. While many of the requested supports were denied, the Tribunal was unable to change the reviewable decision in respect of the therapeutic supports because there was a lack of probative evidence to support a different finding. Mrs Lawson is encouraged to work with her support coordinator to ensure she understands her plan and uses her approved supports to their full potential which may allow a different decision to be made in the future.
DECISION
The Tribunal varies the reviewable decision as follows:
1.Mrs Lawson’s Statement of Participant Supports will include funding for the following reasonable and necessary supports:
(a)       Level 1 transport; and
(b)       11 hours of dietitian support.
2.The plan is to be reassessed 12 months after the new plan is implemented following this decision.
In all other respects, Mrs Lawson’s plan remains unchanged.
Dates of hearing:  22 and 23 April 2025
Counsel for the Respondent:                    Ms L. Beange
Solicitors for the Respondent:                   Sparke Helmore
Representative for the Applicant:             Mr J. Lawson