Malouf and Chief Executive Officer, National Disability Insurance Agency (NDIS)

[2025] ARTA 97

Malouf and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2025] ARTA 97 (17 February 2025)

Applicant/s:  Frederick Malouf

Respondent:  Chief Executive Officer, National Disability Insurance Agency

Tribunal Number:                2022/9756

Tribunal:Senior Member J Collins

Place:Brisbane

Date:17 February 2025

Decision:From 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

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

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

Senior Member J Collins

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – phonophobia - midophonia, hyperacusis, misokinesia – depression- anxiety - social phobia - post traumatic stress disorder – motorbike and maintenance – vehicle registration – vehicle insurance- drone – computer – gym membership - personal training – rowing machine – psychology – housing support – surgery – dietician – psychiatry – occupational therapy – physiotherapy - reasonable and necessary supports – consideration of section 34 National Disability Insurance Scheme Act 2013 (Cth) - decision affirmed

Legislation

Administrative Review Tribunal Act 2024 (Cth) s105
National Disability Insurance Scheme Act 2013 (Cth) s34, s35
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024
National Disability Insurance Scheme (Supports for Participants) Rules - 1 July 2013, Rules - 3, 5
Cases
G v Minister for Immigration and Border Protection [2018] FCA 1229
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF [2020] FCFCA 79
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60

Barling and National Disability Insurance Agency [2021] AATA 4358

Secondary Materials

NDIS – Operational Guidelines - Reasonable and necessary supports, as of 6 October 2023 

Statement of Reasons

1.       Mr Malouf is a 60-year-old male and a participant in the National Disability Insurance Scheme (‘the scheme’).

2.       On 2 November 2022 the Chief Executive Officer of the National Disability Agency (‘the Agency’) approved a statement of participant’s support (‘SOPS’) for Mr Malouf. Dissatisfied with these SOPS, Mr Malouf requested an internal review on 24 November 2022 under s100(2) of National Disability Insurance Act 2013 (Cth) (‘the NDIS Act).

3.       An internal review was subsequently conducted and on 29 November 2022 the Agency confirmed the decision to approve the SOPS (‘decision under review’).

4.       Mr Malouf has now applied to the Tribunal for a review of the decision under review.

BACKGROUND

5.       Mr Malouf was granted access to the Scheme for a primary diagnosis of Phonophobia (fear of sound).

6.       Mr Malouf has other medical conditions which include Misophonia (adverse response to sound), Hyperacusis (severe sound intolerance), Misokinesia (movement intolerance), Depression, Anxiety, Social Phobia and Post-Traumatic Stress Disorder.

7.       For the purposes of this review Mr Malouf is seeking funding for the following supports:

·a motorbike, motorbike maintenance, safety gear, registration and insurance costs;

·a drone and accessories, comprising of:

oapproximately $2,921 for a drone such as the DJI Mini Pro Fly More+, Air 3 or Mini 5 Pro;[1]

[1] The quote for the DJI Mini 4 Pro Fly drone and accessories is $2,137; see, SD246.

oapproximately $8,748 for a computer with AppleCare+;[2] and

[2] The quote for the MacBook Pro – Space Black with 128GB unified memory and 8TB of SSD storage is $11,699; see, SD249. The quote for a three year subscription to AppleCare+ is $649; see, SD248.

otwo 8TB SSD external hard drives;

·gym membership, personal training and a rowing machine;

·psychology;

·support worker assistance;

·housing support;

·surgery to correct his leg;

·dietician supports;

·psychiatry;

·occupational therapy supports; and

·physiotherapy, 

8.       At the hearing Mr Malouf was not legally represented. The Agency was represented by Mr Nesbeth of Counsel instructed by Maddocks Lawyers.

ISSUES

9. The issues before the Tribunal are whether supports sought by Mr Malouf are ‘reasonable and necessary’ pursuant to section 34 of the National Disability Insurance Scheme Act 2013 (‘NDIS Act’) and should be included in his SOPS made pursuant to the scheme;

THE LEGAL FRAMEWORK

National Disability Insurance Scheme Act 2013 (Cth)

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

11.     This application was made to the Tribunal on 29 November 2022.[3] At that time section 34 of the NDIS Act provided as follows:

[3] T1.

Reasonable and necessary supports

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

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

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

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

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

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

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

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

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

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

12.     On 3 October 2024 however, and prior to the completion of this review the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (the ‘Amending Act’) commenced. The Amending Act made a range of amendments to the NDIS Act including amendments to section 34.

13. The amendments to section 34 of the NDIS Act will apply to this review.[4]

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

14. Section 34 of the NDIS Act, as amended, provides as follows:

Reasonable and necessary supports

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

(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.

Note:  For the purposes of (aa):

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

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

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

15. Section 34(1) is cumulative. Therefore, all the criteria must be met.

16. Section 34(1)(aa) of the NDIS Act as an amendment, imposes an additional requirement of the criteria. This additional requirement is the consideration of whether the support is necessary to address the needs of Mr Malouf which arise from the impairment/s for which he met the disability requirements.

17. Section 34(1)(f) of the NDIS Act is a replacement of an ‘old provision’ with a ‘new provision’.

18. This new provision of section 34(1)(f) of the NDIS Act requires that the support be a ‘NDIS support’.

19. Section 10 of the NDIS Act provides a definition of what constitutes a ‘NDIS Support’ for the purposes of section 34(1)(f) of the NDIS Act (as amended). Section 10 of the NDIS Act provides as follows:

Supports that are NDIS supports

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

(a)  participants or prospective participants generally; or

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

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

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

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

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

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

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

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

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

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

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

(4)  The National Disability Insurance Scheme rules may declare that a support is not an NDIS support for:

(a)  participants or prospective participants generally; or

(b)  a class of participants or prospective participants.

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

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

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

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

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

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

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

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

(d)  the CEO is satisfied that:

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

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

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

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

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

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

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

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

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

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

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

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

(a)  sexual services; or

(b)  alcohol; or

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

20. Section 34(2) provides that the NDIS rules may prescribe methods or criteria to be applied, or matters to which the CEO must have regard, in deciding whether a requested support satisfies the criteria under section 34(1) of the NDIS Act.

21. Section 35 of the NDIS Act provides for the making of rules in relation to prescribing reasonable and necessary supports or general supports that will be funded or provided under the scheme. The relevant rules in respect of this review are the:

·National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘Supports Rules’) and

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

22.     Rules 3 and 5 of the Supports Rules relate specifically to subsections 34(1)(c) –(d) of the NDIS Act. Relevant to this review are the following rules:

Value for money

3.1In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:

(a)   whether there are comparable supports which would achieve the same outcome at a substantially lower cost;

(b)   whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;

(c)   whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);

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

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

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

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

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

Effective and beneficial and current good practice

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

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

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

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

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

General criteria for supports

5.1A 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.

5.2The 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.

23. The Transitional Rules are also relevant to this review. Schedule 1 of the Transitional Rules identifies supports that are NDIS Supports, unless otherwise provided, for the purposes of s 10(1) of the NDIS Act. Schedule 2 of the Transitional Rules identifies supports that generally are not NDIS supports for the purposes of s 10(1) of the NDIS Act.

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

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

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

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

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

[6] ibid at [91].

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

The phrase is a composite phrase. We accept the Agency's submissions that each limb of the phrase should be given work to do. That task is not difficult, or complicated with these two particular words, which are readily understood as conveying different meanings. However, the Parliament has chosen to use a composite phrase rather than to stipulate two distinct requirements, and therefore, as Gleeson CJ cautioned in XYZ v Commonwealth [2006] HCA25; (2006) 227 CLR532 at [19], '[t]here are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts'.

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

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

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

OPERATIONAL GUIDELINES

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

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

[8] G v Minister for Home Affairs [2019] FCAFC 79 at [18].

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

[10] [2018] FCA 1229.

[11] ibid at [171].

28.     Accordingly, unless the Operational Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in a determination of what is a reasonable and necessary support for Mr Malouf. The Guidelines relevant to this review are the NDIS – Operational Guidelines - Reasonable and necessary supports.[12]

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

EVIDENCE

29.     I have considered all the written evidence filed with the Tribunal and provided in the joint bundle and subsequently filed material, the oral evidence provided at the hearing on 10 and 11 February 2025, and the parties’ closing submissions. I will refer in my decision to evidence that in my view is directly relevant to the determination of this matter.

30.     In making my decision in respect of what supports should be included in Mr Malouf’s SOPS I have undertaken a fact intensive exercise. This exercise includes as a consideration Mr Malouf’s individual circumstances, impairments and needs.

EVIDENCE ABOUT MR MALOUF

31.     Mr Malouf has been a participant in the scheme since 2020. He has lived in a two bedroom semi-detached unit for the past four years. This accommodation is provided through the Department of Housing, NSW.

32.     Mr Malouf has been on a disability pension since 2006.[13]

[13] T37.

33.     In his current SOPS[14] Mr Malouf refers to following goals:

·To develop strategies and skills to manage the impacts of my mental health symptoms to maintain my overall wellness and to enable me to have as much independence in my day-to-day life.

·To find an accommodation where I can live peacefully and manage the issues arising out of my mental status.

·To manage my social anxiety disorder and PTSD stemming from hearing sensitivities and emotional responses to sound, vibrations and movement from people and anything they may be using.

·To access equipment and devices to support my ability to engage socially with communities interested in doing something for the greater good.

·To reduce stress and panic symptoms that result in reduced ability to participate in volunteer and meaningful activities in the community.

[14] C6.

34.     The evidence overwhelmingly supports, and it is not disputed, that Mr Malouf has a psychosocial impairment due to his significant sensitivity to sounds as a consequence of ‘phonophobia’. [15]

[15] Dr Thomas, T3, T4, T7, T12, T20, T33, T37, SD6, SD10, SD 22.

35.     Mr Malouf has also been diagnosed with the following further conditions:

·misophonia,

·hyperacusis,

·misokinesia,

·depression,

·anxiety,

·social phobia; and

·post-traumatic stress disorder

·social anxiety disorder,[16]

[16] Dr Thomas, T3, T4, T7, T12, T20, T33, T37, T45, SD6, SD 10.

36.     Mr Malouf stated,

‘I suffer from sound and movement traumas that people make. These are hyperacusis, misophonia, phonophobia, misokinesia, kinesophobia, agoraphobia, anthropophobia.’[17]

[17] SD17.

37. The Agency accepts for the purposes of section 34(1)(aa) of the NDIS Act that Mr Malouf also suffers from PTSD and a range of anxiety disorders.[18] Based on the medical evidence this is a reasonable and proper concession.

[18] Respondent’s closing submissions.

38.     Mr Malouf also refers to a diagnosis of Autism Spectrum Disorder- level 2 [19] He refers to a report provided by Dr Michael Lau, psychiatrist[20] and a diagnosis of ASD made by Ms Flinn Samson, psychologist.[21]

[19] Exhibit 1 A3.

[20] SD250.

[21] SD253.

39.     Dr Lau states in his report ‘Please note that I have not attempted to diagnose him with autism spectrum disorder or adult ADHD in this assessment but based on my assessment today, it is in my professional opinion that such assessment will be beneficial.’

40.     Ms Samson conducted an assessment of Mr Malouf and provided a report dated 26 February 2024. Her assessment concluded a diagnosis of level 2 Autism Spectrum Disorder (ASD).

41.     In his oral evidence Mr Malouf explained that he experiences ‘trauma’ as a consequence of the sounds that people make and the ‘movement’ of people in and around him.[22] Mr Malouf has difficulties with people speaking loudly on their mobile phone. Other examples include difficulties with the noise of people walking on floorboards nearby.

[22] Applicant’s oral evidence.

42.     Mr Malouf also referred to the following:

·He has had issues dealing with people his whole life;

·Some sounds trigger him into a state of ‘panic’;

·He has spent his life trying to find peace;

·He finds places where sounds do not ‘reflect’ and where there are very few people nearby;

·He seeks to have time by himself and once spent 16 hours sitting in a bank vault;

·That not ‘looking at other people’ is like a ‘medication’ for him;

·He accesses the community in the middle of the night ‘just to be away from other people’;

·He is unable to use public transport or fly in an airplane.

43.     The Agency does not accept the diagnosis of ASD by Ms Samson and makes the following submissions:

·Ms Samson was ‘unaware’ of Mr Malouf’s other diagnoses including phonophobia and other conditions;

·That no reference is made in her report to Mr Malouf’s other diagnoses;

·That in the absence of a ‘full picture’ of Mr Malouf’s various diagnoses Ms Samson attributes all of Mr Malouf’s difficulties to the diagnosis of ASD.[23]

[23] SD253 at para1.1.

44.     The Agency’s submission is not accepted. Ms Samson clearly refers at the commencement of her report and throughout to Mr Malouf’s various diagnoses and conditions.

45.     The Agency also submits that Ms Samson is an advocate for Mr Malouf. 

46.     Mr Malouf described the following symptoms as a consequence of his phobias:

·Heart racing;

·Shaking;

·Nausea;

·Dizziness;

·Mind racing;

·An urge to flee;[24] and

·Suicidal ideation.

[24] T9.

47.     As a part of his difficulties Mr Malouf describes also having a ‘fear’ in ‘anticipating’ sounds that he has extreme sensitivity towards.

48.     Mr Malouf described himself as a recluse. He stated he had been in ‘shutdown’ for the past almost eighteen months.[25]

[25] A3 at 9.3.

49.     In his report in 2018 Dr Malev, general practitioner described Mr Malouf as having a sensitivity to people and sound which was ‘to the point of paranoia’.[26] Dr Malev also referred to a history of treatment with psychologists and psychiatrists.[27]

[26] T5.

[27] T6.

50.     Mr Phil Botha, psychologist stated in his 2019 report that Mr Malouf’s sensitivity to sound makes it difficult for him to deal with constant higher noise levels and contributes to his high levels of anxiety and event panic at times.[28]

[28] T7.

51.     Mr Malouf stated that he does not have any informal supports.  His family is comprised of his stepmother and two half siblings, which he sees infrequently and usually only at Christmas and Easter. He explained that he was unable to attend his stepsister’s engagement party due to the noise at the party.

CONSIDERATION

52. Mr Malouf was granted access to the scheme in 2020 on the basis of meeting the disability requirements pursuant to section 24(1) of the NDIS Act.

53.     Mr Malouf met the disability requirements, at that time, on the basis of psychosocial impairments related to phonophobia. The Agency now accepts, for the purpose of this review, additional diagnoses of ‘anxiety disorders’ and PTSD.[29]

[29] Respondent’s closing submissions.

54.     Mr Malouf now contends that he meets the disability requirement on the basis of a diagnosis of Autism Spectrum Disorder (‘ASD’). Mr Malouf relies on the report of Ms Flinn Samson previously referred to.[30] He explained that he has always had difficulty connecting with people, government or otherwise.

[30] SD253.

55.     The Agency contends that there is no clear and formal diagnosis of ASD in the available clinical evidence. As such, there is insufficient evidence to establish that Mr Malouf lives with impairments attributable to ASD. Without sufficient evidence, it is contended that the Agency cannot recognise ASD as a secondary disability and, as a consequence, grant Mr Malouf access to reasonable and necessary supports for his impairments attributable to ASD.

56. The Agency also contends that there is insufficient evidence to establish that Mr Malouf lives with impairments attributable to ASD which satisfy either s24 or s25 of the NDIS Act. As such, any request for supports in relation to the ASD cannot be funded in accordance with s34(1)(aa) of the NDIS Act.[31]

[31] SFIC dated 21 November 2024.

57.     Based on the evidence I am satisfied that Mr Malouf has a psychosocial impairment which arises as a consequence of phonophobia, PTSD and a range of anxiety disorders.

58. I also accept the diagnosis of ASD-2 made by Ms Samson a registered psychologist, noting also the recommendation made for an assessment of ASD provided by Dr Lau, psychiatrist. There is however, insufficient evidence before to make a determination on whether Mr Malouf has for the purposes of section 24 of the NDIS Act, a disability due to impairments arising as a consequence of ASD-2.

Motorbike, maintenance, safety gear, registration and insurances costs

59.     Mr Malouf seeks a sum of between $20,000 to $28,000 to fund the following:

·A motorbike;

·Motor bike maintenance;

·Safety gear associated with a motor bike;

·Registration of the motorbike; and

·Insurance of the motorbike.

60.     Mr Malouf’s oral evidence can be summarised as follows:

·The motorbike can be either new or second-hand;

·He would use the motorbike to travel ‘at night’ to quiet places where he can find peace;

·A motorbike would give him independence to be by himself, yet in the community;

·A motorbike would allow him to ‘get around’ motor vehicles and ‘deal with traffic’;

·He is unable to deal with traffic when he is driving a car;

·In a car he has to ‘deal with other cars’ and this causes him to panic. He stated, ‘I panic if I can’t ‘get around people’ and ‘I don’t need a car’;

·He uses a motorbike to travel to places before sunset so that he can do his drone filming;

·Having a motorbike would give him the ability to get to a ‘space’ where he can breathe and not have to interact with others;  

·If he had a motorbike he would not have to rely on support workers ‘as much’ to take him to places during the nighttime. He would be able to leave his home during the night on his own;

·A motorbike is a form of ‘escapism’;

·A motorbike provides a way of managing his trauma and a way to stay safe and away from people.

61.     Mr Malouf also has a ‘drop foot’ which affects his left limb. As a result he requires modifications to a motorbike which include a shaft drive to accommodate his ‘drop foot’. No quotation was provided by Mr Malouf as to the cost of any motorbike modifications.

62.     Mr Malouf provided a copy of an advertisement located on the internet website ‘carsales.com.au’ in respect of the sale of various second-hand motorbikes.[32] Mr Malouf explained that to date he had not test driven any of these motorbikes.

[32] F15.

63.     Mr Malouf stated that he seeks the ‘maintenance’ costs of a motorbike which he identified as the ‘standard service requirements every 10,000 kilometres’. No quotation was provided in his evidence of the costs of such servicing.

64.     The ‘running costs’ sought by Mr Malouf include registration, insurance and petrol. No quotation was provided in his evidence of these running costs. An estimation of these costs was however referred to the report of Ms Melissa De Silva, occupational therapist in March 2022. Ms De Silva stated:

‘Registration is about $450 a year. Costs to maintain, about $1500-2500, depending on tyres, brakes, and the service (separately $1000-2000 depending on minor to major service’.[33]

[33] T25.

65.     Mr Malouf explained that he is unable to use an ‘Uber’. This is on the basis that if there is a delay in an uber vehicle arriving he ‘panics’. He also explained that by having a support worker with him when accessing the community he was to get ‘out of there’ quickly.

66.     The Agency submissions in respect of Mr Malouf’s request for funding of a motorbike (and the associated items) can be summarised as follows:

·Whilst these items are ‘desirable’ for Mr Malouf they are not ‘reasonable and necessary’ supports for the purposes of section 34 of the NDIS Act;

·They are not related to his needs which arise from his psychosocial impairment;[34]

·They are day-to-day living expenses;[35]

·There is no evidence from a suitably qualified expert before the Tribunal which recommends a motorbike and these additional items as reasonable and necessary supports which will address his needs which arise as a consequence of his psychosocial impairments.

[34] Rule 5.1 (b) Supports Rules.

[35] Rule 5.1 (d) Supports Rules.

67. The Agency also contends that motorbike and the associated items are not NDIS Supports for the purposes of section 10 of the NDIS ACT and are specifically excluded pursuant to Schedule 2 of the NDIS Supports Transitional Rules.

68. Item 6(b) of Schedule 2 of the Transitional rules specifically identifies that the following ‘Day- to day living costs- travel and transport’ are generally not NDIS supports for the purposes of the section 10 of the NDIS Act:

‘vehicles, including motor vehicles, motorbikes, watercraft, all-terrain vehicles, standard bikes and scooters, and other recreational vehicles’ (Tribunal emphasis)

69.     Item 6(d) of Schedule 2 of the Transitional rules specifically identifies that the following ‘Day- to day living costs- travel and transport’ are generally not NDIS supports for the purposes of the section 10 of the NDIS Act:

‘mechanical repairs (except for repairs to vehicle modifications funded under any plan for the participant) automotive tools’

70. Item 6(e) of Schedule 2 of the Transitional rules specifically identifies that the following ‘Day- to day living costs - travel and transport’ are generally not NDIS supports for the purposes of the section 10 of the NDIS Act:

‘vehicle registration’

71.     In substance Mr Malouf submits that the Tribunal jurisdiction in its review includes a discretionary power.

72.     Mr Malouf refers the Tribunal to the decision of Barling and National Disability Insurance Agency [36] which related to the approval of funding under the scheme of a motor vehicle for an applicant. In particular, Mr Malouf refers to the following commentary:

The Tribunal acknowledges that the Supports Guideline states that generally the purchase of a vehicle will not be funded by the Scheme. However, the purchase is not prohibited. The circumstances of this case are exceptional.[37]

[36] [2021] AATA 4358 at para 164.

[37] Ibid at 165.

73.      Mr Malouf emphasised to the Tribunal the use of the word ‘generally’ in Barling stating that he too falls within a category of participants whose circumstances are ‘exceptional’.

74.     Mr Malouf’s submission is misconceived for the following reasons;

·The decision of Barling is irrelevant to this review as it pre-dates the amendments to section 34 of the NDIS Act made on 3 October 2024 pursuant to the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (the ‘Amending Act’);

·This review is conducted pursuant to the amendments to section 34 of the NDIS Act;

·These amendments require as one of the mandatory criteria that a support be a “NDIS Support’ for the purposes of section 10 of the NDIS Act and the Transitional rules;

·Schedule 2 of the Transitional rules specifically excludes the funding of a motorbike, including registration, repairs, and modifications.

75.     Furthermore, any reference to the use the word ‘generally’ in schedule 2 of the Transitional Rules is also misconceived.

76.     I am satisfied that the use of the word ‘generally’ in schedule 2 of the Transitional rules refers to the mechanism whereby an applicant may apply to the Agency for a ‘Replacement support determination’.[38] This mechanism does not relate to motorbikes and the associated supports for which Mr Malouf seeks funding. Rather, this mechanism is strictly confined to the following supports;

·Standard commercially available household items

·Smart watches

·Tablets

·Smartphones and

·An app used for accessibility or communications purposes.

[38] See section 7 Transitional Rules; section 10(6) – 10(7) NDIS ACT

77.     I am satisfied that the funding of a motorbike, including registration, repairs and modifications under the scheme is excluded under Schedule 2 of the NDIS Supports Transitional Rules. In the absence of a motorbike, as a matter logic the associated running costs are an irrelevant consideration for purposes of this review.

78. Subsection 34(1)(f) of the NDIS Act is therefore not satisfied on the basis that these supports are not NDIS supports for the purposes of section 10 of the NDIS Act and the Transitional Rules.

Conclusion

79. A motorbike including registration, repairs, modifications and running costs are not ‘reasonable and necessary’ supports for the purposes of Section 34(1) of the NDIS Act and cannot be included in Mr Malouf’s SOPS.

Drone and accessories

80.     Mr Malouf seeks funding for the following supports:

·a drone such as a DJI Mini Pro Fly More+, Air 3 or Mini 5 Pro;[39]

·approximately $8,748 for a computer with AppleCare+;[40] and

·two 8TB SSD external hard drives;

[39] The quote for the DJI Mini 4 Pro Fly drone and accessories is $2,137; see, SD246.

[40] The quote for the MacBook Pro – Space Black with 128GB unified memory and 8TB of SSD storage is $11,699; see, SD249. The quote for a three year subscription to AppleCare+ is $649; see, SD248.

81.     Mr Malouf described in great detail in his oral evidence his enjoyment in drone filming.  He explained ‘I film silence’.

82.     Mr Malouf stated that he was seeking a drone for ‘recreational’ purposes and that drone filming was his ‘way of connecting with people’.

83.     Mr Malouf has previously owned and flown a drone.  He also has a drone licence.

84.     In or about 2018 he purchased a drone. Unfortunately several months after this purchase he ‘crashed’ the drone. Since that time he has not owned a drone.

85.     Currently Mr Malouf does not have a computer. He explained that he requires a computer and two hard drives so that he can edit the film he takes with his drone.

86.     Mr Malouf provided a quotation for a drone in the sum of $2,960.00.[41] This quotation included a three year “care refresh plan’ of $458.00 in the event of an accident or crash and subsequent damage or destruction of the drone. He also provided a quotation for a 16inch MacBook Pro computer in the sum of $11,299.00[42]

[41] F6.

[42] F16.

87.     In oral evidence he explained that his research indicated that the cost of each external hard drive would to be in the vicinity $1,200.00.

88.     Mr Malouf stated ‘I only need a computer for drone filming and art, for my wellbeing. I have no other purpose for it. I have no one to speak to unless I can create something to connect with others’.[43]

[43] SD 17.

89.     The Agency’s submissions in respect of Mr Malouf’s request for the funding of a drone, computer and external hard drive can be summarised as follows:

·That whilst such supports are ‘desirable’ for Mr Malouf they are not ‘reasonable and necessary’ for the purposes of section 34 of the NDIS Act;

·They are not related to his disability due to his psychosocial impairments;[44]

·They relate to day-to-day living expenses;[45]

·There is no evidence from a suitably qualified expert before the Tribunal which recommends these items as a support which addresses Mr Malouf needs that arise as a consequence of his psychosocial impairments.

[44] Rule 5.1 (b) Supports Rules.

[45] Rule 5.1 (d) Supports Rules.

90. The Agency also contends these items are not NDIS Supports for the purposes of section 10 of the NDIS Act and are specifically excluded pursuant to Schedule 2 of the NDIS Supports Transitional Rules.

91. Item 4 of Schedule 2 of the Transitional rules specifically identifies that the following ‘Day- to day living costs - lifestyle’ are not NDIS supports for the purposes of the section 10 of the NDIS Act:

(f) ‘standard computers, standard computer accessories, consoles and games, and subscriptions for streaming services;

(g) standard recreational equipment and tools, including toys, balls and racquets;

(h) costs associated with recreational sports and activities, including membership costs, venue hire fees, uniforms and footwear;

(p)

standard indoor or outdoor play equipment;’

92.     Based on Mr Malouf’s evidence I am satisfied that a drone is used by him as a piece of recreation equipment.

93.      I am satisfied that the funding of a drone, computer and two external hard drives under the scheme is specifically excluded under Schedule 2 of the NDIS Supports Transitional Rules.

94. Subsection 34(1)(f) is therefore not satisfied on the basis that a drone and the associated items sought are not NDIS supports for the purposes of section 10 of the NDIS Act and the Transitional Rules.

Conclusion

95. A drone, a computer and two external hard drives are not ‘reasonable and necessary’ supports for the purposes of Section 34(1) of the NDIS Act and cannot be included in Mr Malouf’s SOPS.

Gym membership, personal training and rowing machine;

96.     Mr Malouf advised at the commencement of the hearing that he no longer seeks funding under the scheme for an annual gym membership.[46]

[46] T48.

97.     Mr Malouf stated that his preference is to have a personal trainer visit him in his home. Also for a rowing machine to be funded so that he can undertake this exercise in his home.[47]

[47] A3 at 9.3.

98.     He explained that a rowing machine would provide him with the opportunity to exercise without having other people ‘around him’.

99.     Currently Mr Malouf does not exercise and only leaves his home in rare circumstances.[48] The inability to exercise was described by Mr Malouf as being destructive to his wellbeing.[49]

[48] Applicant’s oral evidence.

[49] Applicant’s oral evidence.

100.    Mr Malouf contends that regular use of a rowing machine will help him to feel stronger, more confident and improve his ability to engage with others. Also, that a personal trainer three times each week will provide him with exercises including stretching and callisthenics he can undertake at home. A personal trainer will also be able to motivate him.[50]

[50] Applicant’s oral evidence, SD266.

101.    Mr Malouf referred the Tribunal to a report by Mr George Salama, physiotherapist.[51]

[51] AHPRA Registration no PHY0002096508.

102.    Mr Salama’s report[52] recommended corrective surgery to his lower limb. Mr Salama’s report however made no recommendation in relation to the funding of a rowing machine or a personal trainer.

[52] Exhibit 6 .

103.     The Agency’s submissions in respect of Mr Malouf’s request for funding of a rowing machine and a personal trainer can be summarised as follows:

·These supports are related to Mr Malouf’s physical condition;

·They are not related to his needs that arise due to his psychosocial impairments;[53]

·They relate to day-to-day living expenses;[54]

·There is no evidence, from a suitably qualified expert, before the Tribunal which recommends a rowing machine and personal training as a support which addresses Mr Malouf needs that arise as a consequence of his psychosocial impairments;

[53] Rule 5.1 (b) Supports Rules.

[54] Rule 5.1 (d) Supports Rules.

104.    The Agency also contends that the funding for a rowing machine and personal trainer under the scheme as a NDIS support is excluded pursuant to Schedule 2 of the NDIS Supports Transitional Rules.

105. Item 4 of Schedule 2 of the Transitional rules specifically identifies that the following ‘Day- to day living costs - lifestyle’ are not NDIS supports for the purposes of the section 10 of the NDIS Act:

(q)  general health, fitness, social or recreational activity costs or services;

(r)   membership and entry to a recreational club and standard gym equipment;

106.    I am satisfied that a rowing machine is a form of standard gym equipment. I am also satisfied that the services of a personal trainer are a recreational activity service.

107.    I am also satisfied that Mr Malouf seeks funding for a rowing machine and a personal trainer for a purpose that primarily relates to his physical condition and the difficulties that he has with his lower limbs, hips and back. There is however no evidence to support any contention that Mr Malouf meets the disability requirements on the basis of a physical impairment due to his lower limb conditions.

108.    I am therefore satisfied that the funding of a rowing machine and a personal trainer for Mr Malouf is specifically excluded under Schedule 2 of the NDIS Supports Transitional Rules.

109. Subsection 34(1)(f)of the NDIS Act is therefore not satisfied on the basis that a rowing machine and personal training are not NDIS supports for the purposes of section 10 of the NDIS Act and the Transitional Rules.

Conclusion

110. A rowing machine and personal training are not ‘reasonable and necessary’ supports for the purposes of Section 34(1) of the NDIS Act and cannot be included in Mr Malouf’s SOPS.

Psychology

111.    Mr Malouf seeks funding under the scheme for fortnightly psychology.

112.    The Agency submits that Mr Malouf receives $20,377.68 in capacity building supports and that this includes a component of 39 hours per for psychology.[55]

[55] C6.

113.    In response Mr Malouf contends that this level of funding is insufficient.[56]

[56] A3 at 9.4.

114.    Mr Malouf explained that he does not use his capacity building support funding for psychology. This is because he uses the entirety of his capacity building support to fund physical therapy treatment in respect of his various physical ailments, including those related to his lower limbs, hips and back. This physical therapy treatment is provided by Mr George Salama, physiotherapist.

115.    Mr Malouf acknowledged in cross examination that the physical therapy treatment provided by Mr Salama did not assist with his phobia’s however stated that it was relevant to his well-being.[57]

[57] Applicant’s oral evidence.

116.    Historically Mr Malouf has received psychology treatment for anxiety and depression for many years[58] He has also tried cognitive behavioural therapy (CBT) treatment many times and two sessions of dialectical behavioural therapy (DBT). 

[58] T4, T7, T9, T51. 

117.    In his oral evidence Mr Malouf was adamant that he did not want to engage further with either CBT or DBT. He explained that he had tried these treatments, that they were ineffective and also that ‘rationally’ they did not make any sense to him.

118.    Mt Malouf referred to an intense dislike of DBT, stating that DBT was all about him having ‘to change for others’. He also stated DBT prioritises other people and not him explaining ‘why should I change for others.’ Mr Malouf described DBT as ‘rationally useless’.

119.    Mr Malouf seeks further funding for the purposes of schema therapy and psychotherapy from Ms Natalia Meylakh, psychologist. In this regard he has recently attended with Ms Meylakh and completed a ‘questionnaire’ she provided with a view to commencing a course of schema therapy and psychotherapy with Ms Meylakh. Mr Malouf explained that he is yet to commence any treatment with Ms Meylakh and that she had not provided a report to Tribunal.

120.    Mr Malouf submits that the treatment proposed by Ms Meylakh will make him feel less afraid and will be ‘empowering’.

121.    Dr Linda Thomas, psychologist conducted an assessment of Mr Malouf on 27 July 2023 and provided a report dated 24 August 2023.[59]

[59] G1.

122.    Dr Thomas’ opinion was that ‘the most appropriate and effective treatment for Mr Malouf’s condition is Dialectical Behavioural Therapy’.

123.    Dr Thomas recommended that Mr Malouf receive funding under the scheme for 15 weekly sessions to complete DBT training and thereafter 10 monthly sessions of psychology to determine his engagement and compliance with the therapy.

124.    Dr Thomas stated that ‘with appropriate and successful treatment, Mr Malouf should be able to achieve stable employment, engage with the community and find meaning and purpose in life’.[60]

[60] G1.

125.    Dr Thomas also provided oral evidence at the hearing which can be summarised as follows:

·Her opinion is that Mr Malouf’s symptoms are related to his psychosocial dysfunction;

·DBT is the ‘gold standard treatment’ for personality dysfunction;

·DBT involves developing distress tolerance skills, assisting with emotional regulation, mindfulness, assisting with the ability to control attention in the moment, interpersonal effectiveness and the formation of better relationships. She identified these skills as all relevant to Mr Malouf’s symptoms.[61]

[61] Oral evidence Dr Linda Thomas.

126.    Dr Thomas stated that Mr Malouf required a highly trained clinical psychologist to implement specific CBT strategies.[62] Further, that on the basis of his compliance with DBT treatment she would expect a significant improvement in his capacity.

[62] G1

127.    Dr Thomas was referred to Mr Malouf’s avoidant behaviours. Her opinion was that promoting or facilitating his avoidant behaviours was detrimental to Mr Malouf’s wellbeing and if continued he would ‘in time’ become even more ‘shut in’. Furthermore, he would also lose ‘more and more skills’ and his level of distress would only increase.

128.    Under cross examination Mr Malouf raised the diagnosis of ASD made by Ms Samson. Dr Thomas confirmed that a diagnosis of ASD did not alter her opinion or recommendations provided in her report.

129.     The Agency submissions can be summarised as follows:

·Mr Malouf’s SOPS already includes funding for 39 hours per years of psychology as a reasonable and necessary support;

·this level of funding is sufficient;

·that Mr Malouf has used psychology funding for physical therapy treatment with Mr Salama in respect of his physical conditions;[63]

·The treatment provided by Mr Salama does not relate to Mr Malouf’s psychosocial impairment, which is the sole purpose for which such funding is provided;

·that in any event, the weight of evidence recommends DBT for Mr Malouf; and

·that 2 sessions of DBT is an insufficient trial of DBT.

[63] Respondent’s closing submissions

130.    The Agency’s submission is persuasive and accepted.

131.    Mr Malouf currently uses the psychology component of his capacity building supports for a purpose that does not relates to his needs that arise as a consequence of his psychosocial impairment.[64]

[64] Section 34(1)(aa) NDIS Act

132.    Mr Malouf is not funded under the scheme for the treatment or support of any physical impairment. He is therefore using the funding in his SOPS inappropriately.

133.    I do not consider it appropriate in these circumstances for the scheme to fund any additional support for psychology as a support when the current funding of 39 hours per year has not been utilised.

Conclusion

134. The funding of further support for psychology in Mr Malouf’s SOPS is not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Mr Malouf’s SOPS.

Support worker assistance

135.    Mr Malouf states that he seeks 25- 30 hours per week of support worker assistance.

136.    When questioned by the Tribunal Mr Malouf confirmed that he was unsure how many hours of funding for support worker assistance he received under his current SOPS but, whatever the amount, ‘it was not enough’.

137.    Mr Malouf explained that his support workers assist him three to five days of each week. He identified the following assistance from his support workers:

(i)Collection of his mail from his post office box once or twice a week;

(ii)Supermarket shopping for groceries two or three times each week, taking two hours on each occasion. Mr Malouf’s support workers use a shopping list that he provides;

(iii)Two hours of cleaning each week;

(iv)‘Outings’ in the middle of the night to places where he feels safe. This occurs approximately three nights of each week with each outing generally takes between three to six hours;

(v)Excursions ‘out of Sydney’, once or twice a week, to inspect suitable housing for Mr Malouf. Each excursion takes approximately 9 hours. Every few weeks these excursions will be ‘overnight’. Mr Malouf and his support worker will stay overnight at a motel on these occasions. Mr Malouf uses his NDIS funding to pay accommodation expenses for both him and the support worker on these occasions.[65]

[65] Applicant’s oral evidence.

138. The Agency does not contend that support worker funding is not a NDIS support for the purposes of s10 of the NDIS Act. Nor does it contend that it is more appropriately funded or provided through other general systems of service delivery or support services.

139.    Having considered the NDIS Supports Transitional Rules 2024 I am satisfied that funding for support worker assistance is a support contemplated by item 14 in schedule 1 as being an ‘NDIS Support’ for the purposes of section 10 of the NDIS Act.

140.    The Agency’s submissions can be summarised as follows:

·Mr Malouf’s SOPS already includes funding for 29 hours per years of support worker support assistance as a reasonable and necessary support. This amount of funding is sufficient;

·Mr Malouf’s accommodation is the responsibility of the NSW, Department of housing;

·It is not responsibility of the scheme to fund a support worker to assist Mr Malouf in the search and location of accommodation which he considers more suitable to his needs.

141.    The Agency’s submission is persuasive and accepted.

142.     Mr Malouf currently uses a large component of his support worker funding for a purpose that is not the responsibility of the scheme to provide. That purpose relates to support workers driving Mr Malouf to various locations outside of Sydney to inspect rental accommodation.

143.    Mr Malouf is therefore using the support worker funding in his SOPS inappropriately.

144.    Taking into account Mr Malouf’s evidence in relation to the assistance he receives from support workers as referred to in [137 (i) – (iv)] I am satisfied that 29 hours per year of support worker assistance is a reasonable and necessary support. 

145.    I do not consider it appropriate to increase Mr Malouf’s funding for support worker assistance in the context of it being for a purpose which is not the responsibility of the scheme to fund.

Conclusion

146. The funding of an increase in support worker assistance in Mr Malouf’s SOPS is not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Mr Malouf’s SOPS.

Housing support

147.    Mr Malouf seeks funding for what he broadly frames as ‘housing support’.

148.    Mr Malouf currently reside in a semi-detached property provided by the NSW Department of housing. Mr Malouf stated that he had been in this property for 4 years and it is unsuitable for the following reasons:

·He is able to ‘feel’ his neighbours through the floorboards when they walk;

·He must take medication to sleep;

·The demographic of the area is violent.

149.    Mr Malouf described a long standing history of difficulties in obtaining housing which is sensitive to his disability.[66]

[66] T6, T7.

150.    Mr Malouf also referred to a history of difficulties in liaising with the NSW Department of Housing which had resulted in his ‘suicidal ideation’.[67] He referred to the offer of ‘rental subsidy’ of $700.00 per week by the NSW, Department of Housing, stating that this amount was insufficient in the current rental market.

[67] A3 at 9.6, T23.

151.    The Agency contends that the funding of housing or housing support under the scheme as a NDIS support is excluded pursuant to Schedule 2 of the NDIS Supports Transitional Rules

152. Item 4 of Schedule 2 of the Transitional rules provides that the following ‘Housing and community Infrastructure’ is not NDIS supports for the purposes of the section 10 of the NDIS Act;

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

(j) housing subsidies, including rental bonds, mortgage relief and assistance with buying a home;

(k) crisis housing;

153.    I accept the Agency’s submission.

154. Subsection 34(1)(f) is not satisfied on the basis that housing or housing support is not a NDIS supports for the purposes of section 10 of the NDIS Act and the Transitional Rules.

Conclusion

155. Housing and housing support are not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Mr Malouf’s SOPS.

Surgery

156.    Mr Malouf seeks funding for surgery to his lower leg. Mr Malouf reports having been in a vehicle collision in Mexico in 1999 in which he sustained significant injuries including a fracture of both femurs.  He is now affected by arthritis in his hips. In the past Mr Malouf has also had knee replacements of both knees. He seeks surgery to fix the rotation of his leg so that his walking becomes ‘symmetrical’. He has been advised that this surgery will cost ‘about 10K – 15K’. [68]

[68] A3 at 9.7, Applicant’s oral evidence.

157.    Mr Malouf refers to the report of Mr Salama dated 11 January 2025, which recommended corrective surgery for him.[69]

[69] Exhibit 6.

158.    The Agency contends that the funding of surgery under the scheme as a NDIS support is excluded pursuant to Schedule 2 of the NDIS Supports Transitional Rules.

159. Item 12 of Schedule 2 of the Transitional rules provides that the following are not NDIS supports for the purposes of the section 10 of the NDIS Act;

(a)  the diagnosis, early intervention and clinical treatment of health and dental health conditions, including ongoing or chronic health conditions;

(c)   time‑limited, recovery‑oriented services and therapies:

(i)where the predominant purpose is treatment directly related to the person’s health status; or

(ii)that are provided after a recent medical or surgical event, with the aim of improving the person’s functional status, including post‑acute rehabilitation or post‑acute care;

(d)  pharmaceuticals (including prescription medicines and non‑prescription medicines), biological medicines, vaccines, sunscreens, weight loss products, vitamins, sport and athletic supplements, and homeopathic medicines;

(f) surgical services or procedures related to aids and equipment;

(g) acute, subacute, emergency, and outpatient clinical services delivered through public or private hospitals;

160.    I am satisfied that the funding for any surgery for Mr Malouf excluded under Schedule 2 of the NDIS Supports Transitional Rules.

161. Subsection 34(1)(f) is therefore not satisfied on the basis that surgery is not a NDIS support for the purposes of section 10 of the NDIS Act and the Transitional Rules.

Conclusion

162. The funding of surgery for Mr Malouf is not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Mr Malouf’s SOPS.

Dietician

163.    Mr Malouf seeks funding for the services of a dietician on a monthly basis. He stated:

‘‘This is handy, as I am continually being traumatised by NDIS and Homes NSW doesn’t help with the will to live, so it helps to have someone manage food and cooking.’[70]

[70] A3.

164.    In his oral evidence Mr Malouf explained that Mr Salama had advised him that he was ‘inflamed’ around his hips and lower back due to early onsite arthritis. He submitted that a dietician would help him with an ‘anti-inflammatory diet’ and also to manage his weight.

165.    Mr Malouf confirmed that to date he had not seen a dietician, nor had he been recommended to a dietician by a health professional, other than Mr Salama.

166.    Mr Malouf stated he was unable to attend with a dietician through the public health system on the basis of his phobia about going to a hospital.

167.    The Agency contends that the services of a dietician are not related to Mr Malouf’s needs which arise as a consequence of his psychosocial impairment.

168. Item 16 of Schedule 1 of the NDIS Supports Transitional Rules provides that the following are ‘NDIS supports’ for the purposes of section 10 of the NDIS Act:

Health supports that relate to the functional impact of a participant’s disability. This includes the following:

(a)  supports, services and assistive products to manage dysphagia, diabetes, continence, wound and pressure care, respiration, nutrition, podiatry and foot care, and seizures;

169. I am satisfied that the services of dietician are a NDIS support for the purposes of section 10 of the NDIS Act.

170.    Notwithstanding, I accept the Agency’s submission. Mr Malouf seeks dietician support to assist with the management of his physical condition. I am satisfied that the services of a dietician are for a purpose which has no link or connection to Mr Malouf’s needs arising as a result of his psychosocial impairment.

171. Subsection 34(1)(aa) of the NDIS Act is therefore not satisfied.

Conclusion

172. The funding of a dietician for Mr Malouf is not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Mr Malouf’s SOPS.

Psychiatry

173.    Mr Malouf seeks funding for psychiatry. Currently he sees a psychiatrist twice a year through a free service known as ‘Dokotela’. He stated this was not enough and he would like to see a psychiatrist on a monthly basis.

174.    Mr Malouf’s general practitioner currently prescribes him with psychiatric medication. He takes one of the prescribed medications as a ‘double dose’ and without the knowledge of his general practitioner.

175.    Mr Malouf explained that he needed to see a psychiatrist so that he could be prescribed more mediation and in higher doses.[71]

[71] Applicant’s oral evidence.

176.    Mr Malouf stated:

I need to manage medication to be able to sleep as part of managing being

a shut-in where I live. I do not have an addictive personality but do take

very high doses of current medications which current doctors find are

bordering on being lethal, even though, for me, it isn’t. However, if NDIS

can help with a place to live where I am not driven to suicidal ideation, this

may not be necessary. However, ketamine is an option. Monarch mental

Health group offer ketamine trails for about $5,000. This also offers online

meetings with others in the ketamine trials to meet regularly to discuss how

it going. The monitoring is great for safety reasons.

177.    The Agency contends that the funding of psychiatry under the scheme as a NDIS support is excluded pursuant to Schedule 2 of the NDIS Supports Transitional Rules.

178. Item 12 of Schedule 2 of the Transitional rules provides that the following in respect of ‘Health’ is not NDIS supports for the purposes of the section 10 of the NDIS Act;

(a)the diagnosis, early intervention and clinical treatment of health and dental health conditions, including ongoing or chronic health conditions;

179. Item 13 of Schedule 2 of the Transitional rules provides that the following in respect of ‘Mental Health’ is not NDIS supports for the purposes of the section 10 of the NDIS Act;

(b)Treatment, including for drug and alcohol dependency, gambling, and other disorders;

180.    I am satisfied that Mr Malouf seeks funding for psychiatry so that he can receive clinical treatment for a chronic mental health condition. He also seeks this support for the purposes of obtaining prescription medications.

181.    I am satisfied that the funding of psychiatry under the scheme is excluded under Schedule 2 of the NDIS Supports Transitional Rules

182. Subsection 34(1(f) is therefore not satisfied on the basis that these supports are not NDIS supports for the purposes of section 10 of the NDIS Act and the Transitional Rules.

Conclusion

183. The funding of psychiatry is not a ‘reasonable and necessary’ supports for the purposes of Section 34(1) of the NDIS Act and cannot be included in Mr Malouf’s SOPS.

Occupational therapy

184.    Mr Malouf seeks funding for monthly occupational therapy. When questioned by the Tribunal in relation to this support he stated that he did not really know what occupational therapy ‘will do’. His understanding of his current SOPS is that he is funded for an ‘assessment’ by an occupational therapist, but not for a treatment program.[72]

[72] Applicant’s oral evidence.

185.    Mr Malouf refers to the reports of Dr Kathrine Hamill[73], occupational therapist.

[73] SD 226, SD227.

186.    Dr Hamill’s report dated 27 April 2024[74] recommended fortnightly occupational therapy for the following purposes:

·address communication barriers due to executive dysfunction;

·improve emotional regulation and social participation skills;

·support increased confidence and safety for community access and travel training;

·support improved executive functioning and planning for self-care tasks; and

·support capacity building to improve executive functioning in self-management skills;

[74] SD227.

187.    Dr Hamill provided a quotation of $15,519.20.

188.    The Agency identified to Mr Malouf that he received $20,377.68 in capacity building supports under his current SOPS and that this included a component of 48 hours of occupational therapy per year. Mr Malouf again confirmed that the occupational therapy funding component in his SOPS was entirely consumed with funding the costs of his physical therapy.[75]

[75] Applicant’s oral evidence.

189.    The Agency submissions can be summarised as follows:

·Mr Malouf’s SOPS already includes funding for 48 hours per years of occupational therapy as a reasonable and necessary support;

·this level of funding is sufficient;

·Mr Malouf uses his occupational therapy funding for physical therapy treatment with Mr Salama for the treatment of physical conditions;[76]

·The treatment provided by Mr Salama does not relate to Mr Malouf’s psychosocial impairment, which is the sole purpose for which such funding is provided.

[76] Respondent’s closing submissions.

190.    The Agency’s submission is persuasive and accepted.

191.    Mr Malouf currently uses his funding for occupational therapy for a purpose that does not relate to his needs that arise as a consequence of his psychosocial impairment.

192.    Mr Malouf is not funded under the scheme for the treatment or support of any physical impairment. He is therefore using the funding in his SOPS inappropriately.

193.    I do not consider it appropriate in these circumstances for the scheme to fund any additional support for occupational therapy as a support when the current funding of 48 hours per year has not been utilised for occupational therapy.

Conclusion

194. The funding of additional occupational therapy is not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Mr Malouf’s SOPS.

Physiotherapy

195.    Mr Malouf seeks funding for physiotherapy. He re-iterated that he was currently using all of his capacity building support funding for physical therapy treatment with his physiotherapist Mr Salama.

196.    Mr Malouf explained that he wishes to have physiotherapy treatment twice a week for the treatment of his legs, hips and lower back.[77]

[77] Applicant’s oral evidence.

197.    When questioned by the Tribunal Mr Malouf confirmed that the physiotherapy treatment he received from Mr Salama assisted greatly with his physical ailments but did not alleviate his phobias.[78]

[78] Applicant’s oral evidence.

198.    As already stated, Mr Malouf is not funded under the scheme for the treatment or support of any physical impairments. The current use of the funding in his SOPS for physiotherapy is inappropriate.

199.    I am satisfied that physiotherapy has no link or connection to Mr Malouf’s needs arising as a result of his psychosocial impairment.

200. Subsection 34(1)(aa) of the NDIS Act is therefore not satisfied.

Conclusion

201. The funding of physiotherapy for Mr Malouf is not a ‘reasonable and necessary’ support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Mr Malouf’s SOPS.

DECISION

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

Date(s) of hearing:	10 and 11 February 2025
Applicant:	Self-Represented
Counsel for the Respondent:	Mr M Nesbeth, Counsel for the Respondent
Solicitors for the Respondent:	Mr J Watts, Maddocks Lawyers