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

Case [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…

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AGLC
LNXV by his parent representative LNXV(PR) and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1869
Case
[2025] ARTA 1869
Decision Date

CaseChat Overview and Summary

In the case of LNXV by his parent representative LNXV(PR) and CEO, National Disability Insurance Agency (NDIS), the dispute revolves around the approval of disability-related home modifications for LNXV, a participant in the NDIS scheme. The case was heard by the Tribunal, which was required to review the decision made by the CEO of the NDIS to deny the requested home modifications. The core legal issues before the Tribunal were whether the requested home modifications constitute a NDIS Support, and if they meet the needs of LNXV arising from his impairments in relation to which he meets the disability requirements.

The Tribunal examined the statutory framework and relevant rules, particularly Section 34(1) of the NDIS Act, which mandates that the CEO must be satisfied of certain criteria to approve a support as a NDIS Support. The Tribunal also considered the definition of "NDIS Support" and the criteria set out in the NDIS Supports Transitional Rules. The Tribunal noted that the Applicant bore the practical onus of providing material to persuade the Tribunal that the support in dispute is reasonable and necessary.

In its reasoning, the Tribunal found that the requested home modifications were indeed a NDIS Support, as they fall within the definition provided in the NDIS Supports Transitional Rules. The Tribunal further determined that the requested support met the needs of LNXV arising from his impairments, as they are necessary to address his functional limitations and facilitate his independent living. The Tribunal concluded that the CEO's decision to deny the requested home modifications was not supported by the evidence and contravened the statutory requirements.

The Tribunal's final orders were to remit the matter to the CEO for reconsideration, with directions to approve the requested home modifications for LNXV, in accordance with the findings and reasoning of the Tribunal. The CEO was directed to take into account the evidence presented, the statutory criteria, and the need to provide appropriate supports to LNXV to meet his disability-related needs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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. 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. 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

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 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? 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. 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 constructionSupports 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 worksI 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?