LNXV by his parent representative LNXV(PR) and CEO, National Disability Insurance Agency (NDIS)

[2025] ARTA 1869

LNXV by his parent representative LNXV(PR) and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1869 (19 September 2025)

Applicant/s:  LNXV by his parent representative LNXV(PR)

Respondent:  CEO, National Disability Insurance Agency

Tribunal Number:                2022/6189

Tribunal:Senior Member P French

Place:Melbourne

Date:19 September 2025

Decision:(1)Pursuant to s 105 of the Administrative Review Tribunal Act 2014 (Cth) the decision under review made pursuant to s 48 of the National Disability insurance Scheme Act 2013 (Cth) on 27 May 2025 is set aside and remitted to the CEO for reconsideration by 17 October 2025 in accordance with a direction that the following support is a reasonable and necessary support that is to be included in the Applicant’s Statement of Participant Supports:

-    funding for complex home modifications in accordance with the scope of works (Features: Type 2 and sketches 2501-SK08-SK13) prepared by Lofte Architects dated 16 June 2025 and the quotation provided by Ripple Group for this work dated 16 June 2025, such funding to provide for:

-    the costs of obtaining final architectural plans,

-    the necessary costs of obtaining any approvals required for the work,

-    the final quoted price for the work once the final architectural plans is completed, any necessary approvals have been obtained, and the construction date for the works is known.

(2) Pursuant to s 101(a) of the Administrative Review Tribunal Act 2024 (Cth) the application for review insofar as it concerns the internal review decision dated 4 July 2022 and the decisions to approve a Statement of Participant Supports dated 6 June 2023, 15 December 2023, and 15 December 2024 is dismissed on the basis that it is now lacking in substance.

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

Senior Member P French

Catchwords: National Disability Insurance Agency - reviewable decision of CEO – decision to approve a Statement of Participant Supports – whether requested support is reasonable and necessary – complex home modifications – scope of modifications that is reasonable and necessary – what it is reasonable to expect a family to provide – decision set aside and remitted with direction as to a specific scope of works for home modifications to be funded

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), s 25, 37, 38AA
Administrative Review Tribunal Act 2024 (Cth), s 12, 101, 85, 105
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth), Schedule 16, Item 24
National Disability Insurance Scheme Act 2013 (Cth) s 3, 4, 5, 10, 17A, 31, 33, 34, 99, 100, 103, 209
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Act 2024 (Cth); Schedule 1; Item 129
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Transitional Rules 2024 (Cth); Schedules 1 and 2
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth): r 7

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth), rr 3.1, 3.2, 3.3, 3.4

Cases

Beezley v Repatriation Commission (2015) 150 ALD 111; [2015] FCAFC 165
Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; 24 ALR 577
Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
HPSC and National Disability Insurance Agency [2021] AATA 727
Mulligan v National Disability Insurance Agency [2015] FCA 544
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) 2 ALD 634
Shi v Migration Agent’s Registration Authority (2008) 235 CLR 286
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v WRMF (2020) 378 ALR 449
National Disability Insurance Agency v KKTB, by her litigation representative CVY22 [2022] FCAFC 181

Secondary Materials
National Disability Insurance Agency, Pricing Arrangements for Specialist Disability Accommodation 2025-26, 30 June 2025
National Disability Insurance Agency, NDIS Specialist Disability Accommodation Design Standard, Version 1:1, 25 October 2019
Social, Community, Home Care and Disability Services Industry Award 2010

World Health Organisation, (2011), International Classification of Functioning, Disability and Health, Geneva

Statement of Reasons

1. This is an application concerning LNXV made by his parent representative and mother LNXV(PR) (the Applicant) pursuant to s 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act) for independent review of a decision of the delegate of the Chief Executive Officer of the National Disability Insurance Agency (CEO, NDIA, the Agency) made under s 100(6) of the Act on 4 July 2022 to approve a Statement of Participant Supports (SOPS) for the Applicant under s 33(2) of the Act that did not include several supports requested by him. The Tribunal has jurisdiction under s 12 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) to review this decision because it is designated a reviewable decision by item 4 in the table to s 99(1) of the NDIS Act.[1] This application was made to the Tribunal on 1 August 2022.

   [1] This proceeding commenced before the Administrative Appeals Tribunal (AAT) in accordance with the power conferred by s 25 of the Administrative Appeals Tribunal Act 1975 (Cth). The AAT was abolished and replaced by the Administrative Review Tribunal (ART) with effect from 14 October 2024. By operation of Item 24 in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) any proceeding which was not determined by 14 October 2024 continues in the ART and is to be determined by the application of the provisions of the ART Act.

2. While this application has been before the Tribunal, pursuant to s 33(2) of the Act, a delegate of the CEO approved new plans for the Applicant by decisions made on 6 June 2023, 15 December 2023 and 15 December 2024 following reassessments conducted pursuant to either s 48 or 49 of the Act. In April 2025, the parties reached agreement in relation to some supports that had been in issue up to that point. They submitted signed terms incorporating that agreement with a request that the decision under review be remitted to the CEO for reconsideration pursuant to s 85 of the ART Act. I made an order to that effect on 24 April 2024. Pursuant to that remittal and to s 48 of the NDIS Act the CEO approved a new plan and SOPS for the Applicant on 27 May 2025. That plan specifies as its reassessment date 26 May 2026. By operation of s 103(2) of the NDIS Act the application before the Tribunal is also taken to be an application for review of each of these subsequent decisions to the internal review decision.

3. However, it is the CEO’s decision to approve a SOPS made on 27 May 2025 which is the current operative decision for the purposes of this review.  The application insofar as it concerns the internal review decision and later decisions up to the decision of 27 May 2025 is therefore no longer of any substance and is dismissed on this basis.

4. The SOPS approved on 27 May 2025 left one support in dispute, which by the close of the hearing on 20 June 2025 boiled down to the scope of works for complex home modifications that ought to be approved for inclusion in the Applicant’s SOPS.  That is, it was not in contention between the parties that home modifications were reasonable and necessary, rather it was the extent of those modifications that was in issue. 

5. The CEO’s opposition to the Applicant’s proposed modifications centred on their high cost (approximately $545,600.00) and the ‘choice’ of the Applicant’s family to support him now and over the longer term in their own home, rather than plan for him to move to Specialist Disability Accommodation at an independent location.  The CEO’s contention was to the effect that complex home modifications to a privately owned dwelling would not result in a public asset that could be utilised by others when no longer needed by the Applicant. It was submitted that the high cost of these modifications could not constitute value for money on this basis and was inconsistent with ensuring the financial sustainability of the NDIS.

6. For the reasons set out following I have determined funding for complex home modifications is to be approved in accordance with the scope of works (Features: Type 2 and sketches 2501-SK08-SK13) prepared by Lofte Architects dated 16 June 2025 and the quotation provided by Ripple Group for this work dated 16 June 2025. These are the home modifications contended for by the Applicant. The cost of these modifications is undoubtedly substantial, but I have found that this is a reasonable and necessary support having regard to each of the s 34(1) considerations and the policy of the Act more generally. The alternative proposed by the CEO would not result in a reasonable and necessary support now and in the longer term.

   The Applicant’s current participant plan

7. The Applicant’s current Participant Plan incorporates the following participant goals (the Applicant’s Statement of Goals and Aspirations):

   During this plan period I would like to be supported to improve my functional capacity, mobility, fine and gross motor skills as well as improving my communication.

   During this plan period I would like support to continue to live with my family and have the necessary supports in place to keep me safe.

   During this plan period I would like to be supported to increase my community participation and engage in activities that I enjoy such as swimming, race running, frame soccer and bike riding.

   During this plan period I would like to be supported to help me learn how to regulate my emotions and teach me how to respond more appropriately when I become frustrated and upset.

8. The SoPS incorporated into the Applicant’s current Plan has a total budget of $934,799.93 for funded supports, for the period 27 May 2025 to 26 May 2026, which is divided into 9 categories. For present purposes it is unnecessary to set the components of funding out in detail, except to note that $697,617.96 is available for disability support worker and other assistance related to assistance with daily life, social, economic and community participation, consumables, and transport; $66,299.54 is available for various therapist services being exercise physiology, physiotherapy, occupational therapy, speech pathology and ‘other’ professional; and, $47,100.00 is available for home modifications, being the construction of a temporary bathroom for the Applicant until the home modifications that remain under consideration in this review are completed.

   The Tribunal’s role

9. The Tribunal’s role in conducting this review has been to reach its own conclusion as to whether the delegate’s decision to refuse to approve the scope of work for complex home modifications requested by the Applicant for inclusion in his SOPS is the correct or preferable decision.[2]  That has involved the independent re-assessment of the evidence in relation to this support that was extant prior to the hearing[3] as well as the assessment of the additional documentary and witness evidence that was before the Tribunal at the time of the hearing.[4] 

   [2] Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; 24 ALR 577 (Drake) at 589

   [3] This requested support was not before the internal review delegate when they made their decision; the internal review decision involved a decision not to approve funding for Specialist Disability Accommodation on the Applicant’s parents’ property as a secondary dwelling.

   [4]  Shi v Migration Agent’s Registration Authority (2008) 235 CLR 286 at [45] – [46]

   A note on the evidentiary onus of proof

10. Section 34(1) of the NDIS Act provides, relevantly, that for the purposes of specifying the reasonable and necessary supports that will be funded in a SOPS, the CEO must be “satisfied” of each of the matters set out in that section in relation to the funding of each such support.  In this independent review, the Tribunal must also be so satisfied.   This is a state of positive satisfaction or relative certainty which must be attained in relation to each criterion specifically.[5]  Therefore, while neither the Applicant nor the Agency bear any formal onus of proof, the Applicant does bear the practical onus of placing before the Tribunal, or pointing to material before the Tribunal, that can persuade it that the support in dispute is reasonable and necessary.[6]

    [5] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [60]; National Disability Insurance Agency v WRMF (2020) 378 ALR 449 at 491 [201]

    [6] Beezley v Repatriation Commission [2015] FCAFC 165 (2015); 150 ALD 11 at [68]; HPSC and National Disability Insurance Agency [2021] AATA 727 at [85]

    Evidence and hearing

11. The following documentary material is before me:

    i.The documents filed by the CEO in accordance with the obligations imposed by s 37 and s 38AA of the AAT Act (T-Documents),

    ii.Hearing Tender Bundle prepared by the CEO in consultation with the Applicant, filed on 13 March 2025.  I note that this included:

    a.The CEO’s Statement of Facts, Issues and Contentions, dated 5 February 2025,

    b.The Applicant’s Statement of Facts, Issues and Contentions, dated 11 March 2025,

    c.Statement of LNXV(PR) dated 26 July 2024,

    d.Further Statement of LNXV(PR) dated 5 September 2024,

    e.Final Statement of LNXV(PR) dated 28 February 2025.

    iii.CEO’s reply to the Applicant’s Statement of Facts, Issues and Contentions, filed 17 March 2025,

    iv.Social, Community, Home Care and Disability Industry Award 2010, filed by the CEO on 19 March 2025,

    v.Joint Expert Report of Ms C Young and Ms M Pegg, Occupational Therapists, dated 27 May 2025, filed 18 June 2025,

    vi.Report for Joint Expert Panel prepared by Ms C Lofte aka Ms C Harvey, Architect and Occupational Therapist, dated 16 June 2025, including costings for building works prepared by Ripple Group also dated 16 June 2025, filed 18 June 2025.

12. The principal hearing was conducted over 4 days, being 17-19 February 2025 and 20 June 2025.  The intermission between February and June 2025 was to facilitate the parties convening a conclave and obtaining a joint expert report from Ms Pegg and Ms Young in relation to the options for home modification that were in contention.

13. At the February hearing, the Applicant called as witnesses his mother LNXV(PR), Ms M Pegg, Occupational Therapist, and Mr J Farnell, Building Director, each of whom gave evidence under affirmation. The CEO called as a witness an independent expert Ms C Young, Occupational Therapist, who gave evidence under affirmation.  At the hearing in June 2025, Ms Pegg and Ms Young were recalled to give evidence in relation to their Joint Expert Report, and did so under affirmation.  Ms C Harvey, Architect and Occupational Therapist was also called as a witness to give evidence under affirmation in relation to the architectural sketches she had developed and the costings she had obtained in relation to the home modification options in contention.

    Applicable law

14. The NDIS Act is founded upon an explicit values base which is found in its objects (s 3), general principles (s 4), general principles guiding actions (s 5), and with respect to participants and their plans, in more specific principles contained in ss 17A and 31. It is unnecessary for present purposes to set out these value statements in detail. It is sufficient to note that the policy of the Act places significant emphasis on participant choice and control in the selection of their supports, and upon the individualisation of supports.[7] The words and phrases that encapsulate these values are to be understood as meaning what they say.[8] These principles, at least in so far as they are expressed in s 4, are more than aspirational.[9]  It is the intention of Parliament that persons making decisions under the NDIS Act give effect to this policy as far as practicable.[10]

    [7] see s 3(1)(e), 4(4), 4(8), 17A(1), (2),(3)(b), and 31(b), (g); National Disability Insurance Agency v KKTB, by her litigation representative CVY22 [2022] FCA 181 at [26]

    [8] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [142]

    [9] Ibid at [146]

    [10] see s 5

15. In giving effect to the objects of the Act, regard must be had to the need to ensure the financial sustainability of the NDIS: s 3(3)(b). It is also a general principle that, relevantly, the CEO and any other person performing functions or exercising powers under the NDIS Act is to have regard to the need to ensure the financial sustainability of the NDIS: s 4(17).

16. Section 33 of the NDIS Act sets out the matters that must be included in a NDIS Participant Plan.

17. Pursuant to s 33(1), the Plan must include the Participant’s Statement of Goals and Aspirations.

18. Pursuant to s 33(2), the Plan must include a SOPS, prepared with the participant and approved by the CEO that specifies, relevantly to this case, (b) the reasonable and necessary supports (if any) that will be funded under the NDIS.

19. Section 34 of the NDIS Act determines what is a “reasonable and necessary support” for the purposes of s 33(2):

    34       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 s 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.

    …

20. Sections 34(2), 35 and 209(2A) of the NDIS Act prescribe rule making powers in connection, relevantly, with the funding or provision of reasonable and necessary supports.  Several Rules made pursuant to these rule-making powers are potentially applicable in the circumstances of this case. 

21. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Supports for Participants Rules) inform the interpretation and application of the s 34(1) considerations. In this respect the following of these Rules are relevant in this review:

    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…;

    …

    (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 …;

    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 and informal networks and the community to provide, the CEO is to consider the following matters:

    …

    (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 …; and

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

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

    …

1. Additionally, the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Rules 2024 (Cth) (the NDIS Supports Transitional Rules) and the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth) (the Miscellaneous Provisions Rules) are relevant in determining the paragraph 34(1)(f) consideration.

   Consideration

2. Having regard to the current state of the law, the questions that must be asked in this review, and the sequence in which they must be asked and answered is as follows:

   (a)Is the support that remains in dispute a NDIS Support as defined?

   If the answer to this question is “no” then the support can no longer be considered for approval in the Applicant’s SOPS because it cannot meet the requirement of s 34(1)(f).

   If the answer to (a) is “yes” then the support can be considered for approval in the Applicant’s SoPS if it is necessary to address needs that arise from an impairment in relation to which he meets the disability requirement.  Therefore:

   (b)What are the Applicant’s permanent impairments that result in substantially reduced functional capacity to undertake any of the activities of communication, social interaction, learning, mobility, self-care and self-management, and which affect his capacity for social or economic participation?

   (c)Does the support in dispute meet the needs of the Applicant arising from an impairment in relation to which he meets these disability requirements?

   If the support does not meet the needs of the Applicant arising from an impairment in relation to which he meets the disability requirements then it cannot be considered for inclusion in his SOPS because it does not meet the requirements of paragraph 34(1)(aa).

   (d)If the answer to (c) is “yes” then ask whether the support in dispute meets the requirements of paragraphs 34(1)(a), (b), (c), (d) and (e) and Rule 7 of the Miscellaneous Provisions Rules.

   Is the support in issue a NDIS Support?

3. There is no issue between the parties that funding for disability-related complex home modifications, per se, is a NDIS Support that is capable of being incorporated into a SOPS. 

4. I am also satisfied that this is the case by reference to the definition of “NDIS Support” in s 10 of the Act and to the NDIS Supports Transitional Rules made pursuant to that section. Schedule 1 of the NDIS Transitional Rules prescribes those “supports that are NDIS Supports unless otherwise provided”. They include, in Item 22 of the Schedule:

   Home modification design and construction

   Supports that design, change or modify a participant’s home to help the participant live as independently as possible and to live safely at home.

   This includes the following:

   (a)  Installing equipment or changing a building’s structure, fixture or fittings;

   (b)  Internal and external building modifications to remedy damage arising exclusively from disability-related behaviours or use of NDIS funded assistive technology or equipment;

   (c)   Regulatory certification requirements for the works

   I make that finding.

   Does the requested support meet the needs of the Applicant arising from an impairment in relation to which he meets the disability requirements?

5. It is not in issue in this case that the Applicant lives with permanent impairments of global and specific mental function,[11] voice and speech functions,[12] and of neuromusculoskeletal and movement related functions[13] that result in substantially reduced functional capacity in each of the paragraph 24(1)(c) life activity areas and which affect his capacity for social and economic participation.  These are cognitive, intellectual, neurological and physical impairments for the purposes of paragraph 24(1)(a).  He continues to meet the disability requirements for access to the NDIS on these bases.  I make those findings.

   [11] World Health Organisation (2011), International Classification of Functioning Disability and Health, Geneva; Chapter 1.

   [12] Ibid Chapter 3.

   [13] Ibid Chapter 7.

6. There is no issue that complex home modifications address needs of the Applicant that arise from these impairments.  His impairments necessitate a domestic environment which is accessible and safe for him and others involved in his daily support.   I make that finding.

   Context for consideration of other s 34(1) matters

7. Before turning to the other s 34(1) matters in detail, it is appropriate to set out some general context for that inquiry.

8. The Applicant is (now) 15 years and 6 months old.  He lives with diagnoses which include cerebral palsy, Autism Spectrum Disorder, Global Developmental Delay, Epilepsy, Scoliosis, and an undiagnosed neurological/neurometabolic condition, which have various secondary complications, including digestive problems, faecal and urinary incontinence and several serious behaviours of concern.  He is very tall and heavy.  He uses several items of assistive equipment, which include a modified bed, a Rifton Pacer, commode, standing frame, and wheelchair, and he is a frequent user of consumable items such as continence products, which are purchased in bulk and stored for cost saving and convenience.  He typically requires 2:1 assistance for safe transfers and personal care.

9. The Applicant lives at home with his parents both of whom have parental responsibility for him for the purposes of the NDIS Act, and his older brother.  They live in an unmodified 3-bedroom home, which has one bathroom and one ensuite bathroom off the master bedroom, an open plan kitchen, and 3 living areas, being a dining room, living room and rumpus room.  The house is on a 930sqm block which has outbuildings.  The land is on a single title.  The Applicant’s parents own this property.

10. Originally, the Applicant’s parents sought approval for funding for Specialist Disability Accommodation (SDA), which they intended to construct on this block of land.  The internal review delegate declined to approve that request which resulted in the institution of this independent review.  The Applicant’s request for SDA persisted in this review up until the pre-hearing period, at which time it was abandoned in favour of the complex home modification/extension proposals that are now before the Tribunal.  As I understand it, this was principally because it was unlikely that the necessary approvals could be obtained for the construction of a secondary dwelling on the land.

11. In closing submissions, counsel for the Applicant helpfully titrated the proposals for home modifications before the Tribunal into four options.  They are:

    Option 1 – minor modifications within the existing footprint of the home,

    Option 2 – modifications in accordance with a ‘sketch’ prepared by Ms Young, Occupational Therapist, which is depicted at page 37 of the Joint Expert Report. This involves a 3-room structure internal to the home which provides for an accessible bathroom, bedroom, and a ‘carers room’ in between.

    Option 3 – modifications in accordance with the Type 1 complex home modifications architectural drawings prepared by Lofte Architects for the purposes of the Joint Expert Report.  This is based on Ms Young’s recommendations and has some association with Option 2. It involves construction of an extension to the home and some internal modification of the existing home to provide an accessible bathroom, bedroom, laundry and suite for a disability support worker, which is designed in accordance with the ‘overnight assistance’ policy contained in the design standards for Specialist Disability Accommodation.[14]  There is a corridor external to the bathroom and bedroom from the disability support worker suite and laundry. This option has been costed at $371,000.00 by Ripple Group builders.

    Option 4 - modifications in accordance with the Type 2 complex home modifications architectural drawings prepared by Lofte Architects for the purposes of the Joint Expert Report.  This involves the construction of a self-contained ‘apartment’ which is attached to the main house via a connecting corridor. In addition to a bedroom and ensuite, disability support worker suite, and laundry, this option includes a kitchen, living area and storeroom.  It is design in accordance with the standards for ‘robust’ category SDA. This option has been costed at $545,600.00 by Ripple Group builders.

    [14] National Disability Insurance Agency, NDIS Specialist Disability Accommodation Design Standard, Version 1:1, 25 October 2019

12. Neither the Applicant, nor the Agency, contended for Options 1 or 2. It is accepted that modifications of the nature proposed in those options would not be sufficient to meet the needs of the Applicant and his family. I will therefore not consider those options here.

13. The Applicant contends that Option 4 is the reasonable and necessary home modification support required by the Applicant, because it is most consistent with his individual needs for the following reasons:

    - it provides him with an accessible ensuite bathroom and bedroom,

    -includes provision for the installation of a hoist, for safe transfers,

    - it includes a designated living space where he can engage in leisure and therapy,

    -it better manages his exposure to risks arising from his behaviours of concern,

    -it provides him with a basic modified kitchen which can be used to safely develop his participation in meal preparation, in the absence of the risks that are present in the kitchen in the main dwelling,

    -it provides a designated storage room to accommodate his disability related equipment when it is not in use, and to store consumable items purchased in bulk,

    -it is connected to the main family home and therefore allows for continued daily interaction with family, while also allowing for separation from other family members with disability supporter worker support to reduce their stress,

    - it provides suitable sleeping and bathroom facilities for overnight disability support worker assistance equivalent to what is required for SDA.

14. The CEO submits that Option 3, albeit with some modification, is sufficient to constitute what is reasonable and necessary for the Applicant.  This submission is best understood by reference to the features of Option 4 that the CEO contends are not reasonable and necessary.  They are:

    -that a separate living area is not reasonable and necessary when there are living areas the Applicant could utilise in the main dwelling,

    -that a separate kitchen is not reasonable and necessary when there is a kitchen in the main dwelling,

    -that a storage room is not reasonable and necessary when there are outbuildings on the property that could be upgraded by the Applicant’s parents to provide for the secure, dry storage of equipment and consumables,

    -that option 3 provides for a greater degree of interaction of the Applicant with his family, whereas option 4 involves his substantial separation from them.

15. On a broader level, counsel for the CEO expressed concern as to whether modifications to ‘private property’ of the scale and cost proposed by the Applicant could ever constitute value for money for the public. It was said that the Applicant was now 15,  would be an adult within about 3 years, and on a normative basis would be expected to leave home then.  It was said that the scale and cost of the proposed modifications needed to be considered in that light; that is, the limited period in which they would be utilised. It was submitted that this is a case where the Applicant’s family had made a ‘deliberate choice’ for him to remain living in their family home rather than move to independent SDA, which was a public asset which could be used by others when it was no longer needed by the Applicant.  It was submitted that there should be limits on the funding of private choices of this nature, having regard to the need to maintain the financial sustainability of the NDIS.

16. I have carefully considered those submissions, and have reached the following conclusions in relation to them:

    - the Applicant is a child.  LNXV(PR) gave evidence, which was not challenged or contradicted, that it was NDIS policy that SDA could only be made available to the Applicant if she relinquished parental responsibility for him. That is because it would involve permanent out-of-home care that would be regulated by State child protection authorities.  Notwithstanding the demands of his care, the Applicant belongs in and to a loving, intact family in which he is clearly cherished. Any suggestion that his parents should relinquish parental responsibility for him so that he can be accommodated in SDA elsewhere is wholly unacceptable having regard to the policy of the NDIS Act, which among other things requires the role of families, and the relationship between people with disability and their families, to be acknowledged and respected.[15] It is moreover a general principle guiding actions under the Act that:

    [15] ss 4(12) and (12A), 31(c) and (ca)

    5(f)if the person with disability is a child – the best interests of the child are paramount, and full consideration should be given to the need to:

    (i)protect the child from harm; and

    (ii)promote the child’s development; and

    (iii)strengthen, preserve and promote positive relationships between the child and the child’s parents, family members and other people who are significant in the life of the child.

    In my view it is plainly not in the best interests of the Applicant in this case that he be separated from his parents and sibling by being obliged to move to SDA.

    -I do not consider it reasonable to assume that the Applicant would on a normative basis ‘leave home’ at age 18.  While some 18 years may do that, it is also commonplace for young adults to remain living in the family home into their mid-20s.  Counsel for the CEO did not quibble with that proposition when I raised it with him.  If it would be normative for the Applicant to leave home when he is 24, the home modifications need to be considered in the context of a 9 year trajectory, not a 3 year trajectory,

    -SDA is not a public asset in the sense contended by the CEO.  It is an asset owned by an SDA provider and provided to a participant under an occupation agreement based on funding provided to the participant for such accommodation in their participant plan.  It is true that SDA comes into existence in a public regulatory and policy context, and over time is intended to result in an increase in suitable housing stock for people with significant permanent disability.[16]  However, the NDIA no more ‘owns’ an SDA dwelling than it would the Applicant’s home after modifications are completed.  Should the Applicant and his family give up their home for some reason in the future, it would remain an accessible home available in the Australian housing market,

    -the ‘cost’ of SDA support varies between Building Type and Building Category, location, number of residents and other factors.[17]  Notwithstanding those variations, both counsel agreed that an indicative cost of providing SDA to the Applicant at current rates would be $70,000.00 per annum.  That being the case, if a 9-year period of use of the home modifications by the Applicant is considered (that is, until he is 24) the cost of the home modifications compares very favourably with the cost of SDA over the same period.  SDA would cost at least $630,000.00 over this period, whereas the home modifications contended for by the Applicant will cost approximately $545,600.00.  This constitutes a ‘saving’ of $84,400.00 over that period.  And in this respect, it is important to note that it is not the Applicant’s case that he will leave home at 24.  It is his case that the requested modifications will enable him to remain living in his family home over his lifetime.

    -I cannot see that the s 34(1) analysis requires or permits the Tribunal to engage with the broader public policy considerations raised by the CEO about the public risk of investing substantial funds in the modification of private properties. Those prudential risk considerations are not found within the NDIS Act. The Tribunal is required in a general sense to consider the financial sustainability of the NDIS, but the lens of this analysis is the requirements of s 34(1). At a level of generality, the legislative assumption underpinning the operation of Part 2 of Chapter 3 of the Act is that the approval of funding limited to a reasonable and necessary support is the mechanism by which the NDIS will be financially sustainable. The Tribunal does not have jurisdiction at large to engage in any other analysis.

    [16] National Disability Insurance Agency, Pricing Arrangements for Specialist Disability Accommodation 2025-26, 30 June 2025; National Disability Insurance Agency, NDIS Specialist Disability Accommodation Design Standard, Version 1:1, 25 October 2019.

    [17] National Disability Insurance Agency, Pricing Arrangements for Specialist Disability Accommodation 2025-26, 30 June 2025

17. Against this background I now turn to the specific analysis of this requested support required by the remaining elements of s 34(1).

18. With respect to the paragraph 34(1)(a) requirement I am satisfied that the support requested by the Applicant (being the Option 4 complex home modifications) would assist him to pursue his goal of obtaining support to continue to live with his family with the necessary supports in place to keep him safe.  I note that in closing submissions counsel for the CEO did not quibble with the proposition that the requested home modifications would facilitate pursuit of this goal.  In fact, it was his submission that the CEO accepted that the support would assist the Applicant to pursue all of his NDIS goals in one way or another.

19. The paragraph 34(1)(b) requirement is difficult to apply in the circumstances of this support.  However, it can be said that a stable and safe home environment is a foundation for social and economic participation.  To the extent that a family constitutes a social environment the support would also facilitate the Applicant undertaking activities that facilitate his continued socialisation with his parents and sibling.  The Applicant is also a consumer of various other forms of support, including the services of disability support staff and therapists. He is a consumer of disability related goods, including equipment and consumables.  The requested support accommodates his use of these goods and services, and to this extent engage in activities that facilitate his economic participation.

20. With respect to the paragraph 34(1)(c) requirement, and having regard to Rule 3.1 of the Supports for Participants Rules I am satisfied that the support requested by the Applicant constitutes value for money as compared with SDA and Option 3 for home modifications because:

    -for the reasons set out above, SDA does not constitute value for money because it would involve the removal of the Applicant, who is a child, from his family and family home. That would be unacceptable in the circumstance of this case,

    -in any event, assuming on a normative basis that the Applicant would not be expected to leave home before about age 24, the cost of SDA over the 9 years until he reaches that age would be significantly more expensive than the Applicant’s requested support. And, as I have said, it is not the Applicant’s case that he will leave home in his mid-20s.  It is his case that he will continue to utilise his requested home modifications over his lifetime,

    -the Applicant’s requested support is better calibrated to his needs now as a child, and to his future needs as a young adult.  The home modifications allow for him to interact with family in the main dwelling as well as to live on a relatively self-contained basis in his own ‘apartment’ as he gets older. This arrangement has long-term sustainability in my opinion.  Option 3 would not provide an equivalent level of amenity and sustainability.  It would involve the Applicant’s substantial ongoing utilisation of the features of the main dwelling, aspects of which are unsafe for him because of his behaviours of concern,

    -in this respect, the provision of a kitchen and living area in the ‘apartment’ are not duplicative of the amenities available in the main dwelling in the relevant sense.  They provide over time for the Applicant to grow into adulthood in a space that can become relatively self-contained.  Additionally, the Applicant is a high user of support services, both disability support workers and therapists.  The impact of their presence in the home must also be borne in mind.  The Applicant’s ability to interact with these supports in his own designated space rather than in family living areas is of significant value in terms of the general amenity of the home for all family members.  It also has value in reducing the intrusiveness of these supports on the privacy of other family members,

    -Option 4 provides for the safe storage of the Applicant’s disability related equipment and consumables in a way that will mean that they are readily on-hand when needed.  Option 3 provides no solution for storage of these items, which is likely to result in internal clutter, and occupational risk,

    -I understand the CEO to be opposed to inclusion of a suite (bedroom and bathroom) to accommodate a disability support worker overnight but note that this is a feature of Option 3 which I understood was, in general terms, supported.  In any event, I am satisfied that this element of the home modifications does constitute value for money.  There is no issue that the Applicant requires overnight assistance.  Although a separate bedroom and bathroom may not be required by the relevant industrial award,[18] I accept Ms Harvey’s oral evidence that it is a standard industry expectation that such accommodation is made for overnight assistance.  In this respect, I note that she gave evidence that she specialises in the design of SDA and was familiar with industry expectations in this regard.  I am satisfied on her evidence that unless such provision is made in the modifications, it will be difficult to attract and retain suitable support staff.

    [18] Social, Community, Home Care and Disability Services Industry Award 2010

1. With respect to the paragraph 34(1)(d) requirement, and having regard to Rules 3.2 and 3.3 of the Supports for Participants Rules, I am satisfied that the Applicant’s requested support will be effective and beneficial for him in each of the ways he contends for (see paragraph 34), and for the additional reasons I have given in relation to the paragraph 34(1)(c) requirement. 

2. With respect to the paragraph 34(1)(e) requirement, and having regard to Rule 3.4, I am satisfied of the following matters with respect to what it is reasonable to expect families to provide:

   -it is not reasonable to expect the Applicant’s family to meet the costs of complex home modifications that are necessary to provide for his safe accommodation.  The NDIS was instituted as a social insurance scheme to provide reasonable and necessary supports to persons, such as the Applicant, with permanent significant disability,

   -similarly, it is not reasonable to expect the Applicant’s parents to dedicate and upgrade outbuildings on their property to accommodate the Applicant’s disability related equipment and consumables.  The NDIS was instituted as a social insurance scheme to meet disability related needs of this kind,

   -it is not reasonable to expect the Applicant’s family to relinquish parental responsibility for him, or otherwise to seek to have him accommodated outside his family home. He is a child who is entitled to live with his family in his family home in accordance with the policy of the Act, as I have already referred to it above,

   -notwithstanding their love and support for the Applicant, he places extreme demands on LNXV(PR), and his other parent.  They also have the needs of another older child to attend to.  It is therefore reasonable and necessary that the home modifications enable the Applicant and his family to have time together and apart in the family home, to relieve LNXV(PR) of her care responsibilities and respond to the needs of other family members.

3. For completeness, I note that I do not consider that the Miscellaneous Provisions Rules are engaged in the circumstances of this support.  No contention was made to the contrary of this.

4. For the foregoing reasons, I am satisfied the Applicant’s requested support, being funding for complex home modifications in accordance with the scope of works (Features: Type 2 and sketches 2501-SK08-SK-12) prepared by Lofte Architects dated 16 June 2025 and the quotation provided by Ripple Group for this work dated 16 June 2025 is a reasonable and necessary support that ought to be approved for inclusion in the Applicant’s SOPS.

5. At the hearing I indicated a preliminary intention to make orders in a two-stage process, where I would indicate the support that I had found to be reasonable and necessary in the first stage, then in the second stage invite the parties to submit detailed orders to give effect to that finding.  Upon reflection, I consider this approach to involve unnecessary complexity and delay.  I am satisfied that the specifications I have made in the order setting aside and remitting the decision for reconsideration provide a sufficient description of the ‘support’ to be funded for the purposes of the disposition of this review.  Upon re-consideration, the CEO will need to consider what funding is necessary to accommodate the costs of obtaining final architectural plans, the necessary costs of obtaining any approvals required for the work, and the final quoted price for the work once the final architectural plans are completed, any necessary approvals have been obtained, and the construction date for the works is known.  However, I cannot see that any of these consequential matters need involve the Tribunal.

   Orders

6. For the foregoing reasons, I order:

   (1)Pursuant to s 105 of the Administrative Review Tribunal Act 2014 (Cth) the decision under review made pursuant to s 48 of the National Disability insurance Scheme Act 2013 (Cth) on 27 May 2025 is set aside and remitted to the CEO for reconsideration by 17 October 2025 in accordance with a direction that the following support is a reasonable and necessary support that is to be included in the Applicant’s Statement of Participant Supports:

   -    funding for complex home modifications in accordance with the scope of works (Features: Type 2 and sketches 2501-SK08-SK13) prepared by Lofte Architects dated 16 June 2025 and the quotation provided by Ripple Group for this work dated 16 June 2025, such funding to provide for:

   -       the costs of obtaining final architectural plans,

   -       the necessary costs of obtaining any approvals required for the work,

   -       the final quoted price for the work once the final architectural plans is completed, any necessary approvals have been obtained, and the construction date for the works is known.

   (2) Pursuant to s 101(a) of the Administrative Review Tribunal Act 2024 (Cth) the application for review insofar as it concerns the internal review decision dated 4 July 2022 and the decisions to approve a Statement of Participant Supports dated 6 June 2023, 15 December 2023, and 15 December 2024 is dismissed on the basis that it is now lacking in substance.

Date(s) of hearing:	18 – 19 March 2025, 31 March 2025, and 20 June 2025
Counsel for the Applicant:	Ms S Dhanji
Solicitors for the Applicant:	Mr J Hogan, Victoria Legal Aid
Counsel for the Respondent:	Mr B Wilson
Solicitors for the Respondent:	Ms M August, Moray & Agnew