Manning and CEO, National Disability Insurance Agency (NDIS)
[2025] ARTA 2042
•10 October 2025
Manning and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 2042 (10 October 2025)
Applicant: Ms Sophie Manning
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2024/2854
Tribunal: General Member A Shelley
Place: Canberra
Date: 10 October 2025
Decision: The Tribunal affirms the decision under review.
General Member A Shelley
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – specialist disability accommodation (SDA) – eligibility – need for person-to-person supports – decision under review affirmed
Legislation
National Disability Insurance Scheme Act 2013
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020
Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Mulligan v National Disability Insurance Agency [2015] FCA 544
Charrington and National Disability Insurance Agency [2022] AATA 1160
Kennedy and National Disability Insurance Agency [2022] AATA 265
HTDD and National Disability Insurance Agency [2024] AATA 725
Oczenaschek and National Disability Insurance Agency [2024] AATA 2889
Allen and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1359
TGJH and National Disability Insurance Agency (NDIS) [2025] ARTA 1013
BMCX and Chief Executive Officer of the National Disability Insurance Agency (NDIS) [2025] ARTA 1999
TGJH and National Disability Insurance Agency (NDIS) [2025] ARTA 1013
Keys and National Disability Insurance Agency [2025] ARTA 269
Statement of Reasons
BACKGROUND
Ms Manning has been a participant in the National Disability Insurance Scheme (NDIS) since 18 June 2019 by reference to impairments resulting from her diagnosed cerebral palsy. The issue in this application is whether the statement of participant supports that is part of her NDIS plan can include funding for specialist disability accommodation (SDA).
SDA, in general terms, is housing supply registered with the NDIS. All SDA is designed with accessible features though there are different design categories and building types.
On 12 October 2023, Ms Manning had an NDIS plan approved, under which she was funded for assistance with assistive technology, transport, occupational therapy, physiotherapy and plan management. A concurrent letter from the National Disability Insurance Agency (the Agency) says that Ms Manning had been found ineligible for SDA.
On 19 January 2024, Ms Manning requested review of the statement of participant supports, indicating that she had expected SDA would be approved.
On 16 April 2024, a delegate of the CEO confirmed the original decision, finding that funding for SDA, single occupancy, was not approved.
On 9 May 2024, Ms Manning made an application to the Administrative Appeals Tribunal for review of that decision. She continues to seek funding for SDA as part of the statement of participant supports in her NDIS plan.
On 14 October 2024 all matters on-hand with the Administrative Appeals Tribunal transferred to the Administrative Review Tribunal. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The matter proceeded to a hearing on 11 and 12 August 2025. I took into evidence:
· Exhibit 1: a joint tender bundle (JTB) comprising the T-documents (T1 to T23), the applicant’s documents (JTB1 to JTB19) and the respondent’s documents (JTB20 to JTB22)
· Exhibit 2: a supplementary JTB comprising further applicant’s documents (JTB23 to JTB 25) and respondent’s documents (JTB26 to JTB29)
· Exhibit 3: WA Department of Communities: Community Disability Housing Program Guidelines 2014
· Exhibit 4: WA Department of Communities: Housing Authority Maintenance Policy Manual 2024
· Exhibit 5: WA Department of Housing and Works, Housing and Disability fact sheet dated 1 July 2025.
LEGISLATIVE FRAMEWORK
Before coming to examine the dispute between the parties, it is convenient to set out the statutory scheme as it relates to the inclusion of supports in a participant’s NDIS plan, and SDA in particular.
Sections 32 and 33 of the National Disability Insurance Scheme Act 2013 (NDIS Act) provide that if a person becomes a participant in the scheme (as Ms Manning has), the agency’s CEO must facilitate the preparation of a plan for the participant, which must include the participant’s statement of goals and aspirations, and a statement of participant supports prepared with the participant and approved by the CEO.
The statement of participant supports specifies the reasonable and necessary supports (if any) that will be funded under the NDIS.
Subsection 34(1) of the NDIS Act sets out following the criteria for reasonable and necessary supports, each of which must be satisfied for a support to be funded or provided:
(aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is an NDIS support for the participant.
As to the disability and early intervention requirements referred to in paragraph (aa):
· Section 24 of the NDIS Act provides that a person meets the disability requirements in relation to an impairment if the person has a disability attributable to the impairment, the impairment is, or is likely to be, permanent, the impairment results in substantially reduced functional capacity to undertake at least one of a number of identified activities, the impairment affects the person’s capacity for social or economic participation, and the person is likely to require NDIS supports under the scheme for the person’s lifetime.
· Section 25 of the NDIS Act provides another pathway for a person whose impairments may not yet be permanent, but who is likely to benefit from the provision of early intervention supports.
Section 35 of the NDIS Act allows for the making of rules in connection with the funding or provision of reasonable and necessary supports, including to prescribe:
· methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding supports that will be funded or provided under the NDIS, and
· supports that will or will not be funded or provided under the NDIS for some or all participants.
The National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (the SDA Rules) and the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports Rules) made under section 35 (and other sections) are relevant to the issues for determination. Part 2 of the SDA Rules, significantly, has the effect that even if a support is reasonable and necessary, it may not be provided or funded under the NDIS.
Section 11 of the SDA Rules[1] provides that:
A participant is eligible to receive support for specialist disability accommodation under the National Disability Insurance Scheme if the CEO is satisfied that:
(a) the participant:
(i) has an extreme functional impairment (see section 12); or
(ii) has very high support needs (see section 13); and
(b) the participant meets the SDA needs requirement (see section 14).
[1] The SDA Rules refer internally to the constituent units as sections. I have followed suit, although I note referring to the units as rules, as both representatives did in submissions, would be more conventional.
Each of those emphasised terms is defined in the SDA Rules and the definition is set out where relevant below.
If the section 11 requirements are met, the SDA Rules go on to require that the CEO determines the SDA building type, SDA design category and location of the accommodation that is reasonable and necessary to support the applicant.
The Agency has published operational guidelines, for the purposes of interpreting and applying the law. The Tribunal is not bound to apply government guidelines but will usually do so unless there are cogent reasons not to.[2] The supplementary JTB includes an operational guideline specific to SDA.[3]
[2] Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.
[3] JTB29.
As Ms Flinn who appeared for the CEO put it, the SDA Rules determine eligibility, not entitlement.[4] If the criteria for eligibility in the SDA Rules are met, it remains to be determined whether SDA is reasonable and necessary per section 34 of the NDIS Act. The Supports Rules bear on that inquiry.
ISSUES FOR DETERMINATION
[4] Keys and National Disability Insurance Agency [2025] ARTA 269.
The issues in this matter, stated at their highest, are whether SDA is to be included in Ms Manning’s statement of participant supports, and, if so, on what basis.
In view of the legislative framework, the questions for the Tribunal are:
· Does Ms Manning have an extreme functional impairment (section 12 of the SDA Rules)?
· If not, does Ms Manning have very high support needs (section 13 of the SDA Rules)?
· If either of those are met, does Ms Manning meet the SDA needs requirement (section 14 of the SDA Rules)?
· If so, is SDA a reasonable and necessary support (section 34 of the NDIS Act)?
· If so, what features of SDA are appropriate for Ms Manning (Division 3 of the SDA Rules)?
That is the order in which the Tribunal has typically approached the issues in other matters where the funding of SDA is in dispute.[5] I note it may be more appropriate to determine the appropriate features of SDA before examining whether SDA is a reasonable and necessary support. That is because section 15 of the SDA Rules says that if a person is eligible for SDA (as opposed to entitled to SDA) the CEO must determine the features of SDA. The order in which those issues are determined might be important in some case, but it is not material here.
[5] For example, TGJH and National Disability Insurance Agency (NDIS) [2025] ARTA 1013.
Ms Manning says that each of the criteria are met, and that it is appropriate that SDA with certain features (a fully accessible, 1 bedroom villa with concierge support services) be funded.
The CEO says that Ms Manning does not have an extreme functional impairment or very high support needs, as defined in the SDA Rules, because each of those requires a ‘very high need for person-to-person supports’ (although the test is slightly different between section 12 and section 13), and that is not made out in Ms Manning’s case. The CEO also says that the SDA needs requirement is not met, that SDA is not a reasonable and necessary support, and if the criteria for eligibility and entitlement are met, the matter should be remitted to the Agency for determination of the appropriate features of SDA.
CONSIDERATION
Does Ms Manning have an extreme functional impairment?
As to whether a person has an extreme functional impairment section 12 of the SDA Rules provides:
(1) A participant has an extreme functional impairment if:
(a) the impairment results in extremely reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i) mobility;
(ii) self‑care;
(iii) self‑management; and
(b) the participant has a very high need for person‑to‑person supports in undertaking the activity even with assistive technology, equipment or home modifications.
(2) For the purposes of assessing whether a participant has an extreme functional impairment, the CEO may have regard to:
(a) any assessment or examination conducted in relation to the participant, including any assessment or examination requested by the CEO under paragraph 36(2)(b) or 50(2)(b) of the Act; and
(b) the daily support requirements of the participant; and
(c) any assessment tool specified by the CEO for the purposes of this paragraph; and
(d) any other matters that the CEO considers appropriate.
It is common ground between the parties that there is no assessment tool for the purposes of paragraph 12(2)(c).
‘Person-to-person’ supports is not defined in the SDA Rules (or otherwise in the NDIS legislation) but has been found to mean the ‘direct practical support provided to, and/or needed by, the Applicant in relation to the tasks and actions of daily living whether that support is provided formally (by a paid support worker) or informally (by a family member, carer or friend).’[6] Ms Lee Davids, occupational therapist, who was retained by the CEO and gave evidence at the hearing, said the term would be understood by occupational therapists as including prompting supports as well as physical supports. In closing submissions, Ms Prakash, who appeared for Ms Manning, said I should not give weight to Ms Davids’s view of what is encompassed by the term. Regardless, it is clear enough that ‘person-to-person’ means that the person providing the support is necessarily present with the person receiving the support, although it may be that that could include telephonic or virtual presence for some sorts of non-physical supports.
[6] Allen and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1359 at [69].
The CEO accepts that Ms Manning has extremely reduced functional capacity in the activity of mobility.
That is clearly correct. Ms Manning has a formal diagnosis of cerebral palsy and the evidence about her capacity to mobilise is consistent. In a letter ‘to whom it may concern’ dated 4 May 2023,[7] Dr Alana Dawson, general practitioner, said Ms Manning had been a longstanding patient. She was wheelchair bound and required wheelchair‑accessible accommodation. In Dr Dawson’s view, it would be detrimental for her function and safety to be in inaccessible private dwellings over time.
[7] JTB1, T3.
In a report dated 12 May 2023,[8] Mr Joshua Panelo, occupational therapist, said Ms Manning had considerable physical limitations, necessitating the use of a power wheelchair for mobility. She was, though, able to perform daily living tasks independently, aided by adaptive skills and assistive technologies.
[8] JTB1, T4.
Ms Davids noted she required physical assistance or powered mobility in most settings.[9]
[9] JTB 21.
There is also some reduction in the activity of self-care but it does not amount to an extremely reduced functional capacity. ‘Self-care’ is not defined in the NDIS Act but is generally understood to be those tasks required for personal care, hygiene, grooming, eating and drinking, and management of a person’s health.[10]
[10] See, for example, guideline on Specialised Disability Accommodation, JTB 29.
Ms Manning has identified that she does not need assistance in washing, toileting, dressing and eating,[11] though there is evidence of some functional limitation. For example, Mr Panelo noted Ms Manning could perform daily living tasks independently, but also noted some reduction in dexterity of the upper limbs.[12]
[11] JTB1, T5.
[12] JTB1, T4.
The same can be said of self-management. Ms Manning requires assistance with housework and meal preparation,[13] but there is no evidence of an impairment in relation to making friends, managing financial affairs or regulating behaviour. It is uncontentious to find that any functional impairment is not an extreme functional impairment.
[13] See, for example, Mr Panelo’s report of 12 May 2023 (JTB1, T4).
The evidence as to Ms Manning’s need for person-to person supports includes the following:
At the time of Mr Panelo’s report of 12 May 2023,[14] Ms Manning was living at youth homelessness housing service ‘Foyer Oxford’. She had a ‘disability accessible apartment’ (though Mr Panelo noted a number of issues with the situation) and had been able to live independently with drop-in supports. However, because of the nature of the accommodation she would be required to move out by her 26th birthday, in early 2024.
[14] JTB1, T4.
In relation to the need for SDA, Mr Panelo said that disability assessments highlighted the severity of the disability in relation to mobility. She would have high support needs from a social worker should she be in accommodation that is not accessible.
Mr Panelo found that Ms Manning required external support with meal preparation but, as long as she was in an accessible environment, was otherwise independent in a series of domains set out in the report. She would benefit from accessing support services to assist with demanding house maintenance tasks.
According to a Care and Needs Scale assessment, Ms Manning’s level of support need was ‘level 4’, which meant that she could be left alone for part of the day and overnight but would need support each day for assistance, supervision, direction and/or cueing of occupational activities, interpersonal relationships and/or living skills.
On 1 June 2023,[15] Ms Manning completed an NDIS ‘support evidence form – home and living’ in which she said identified that she needed help with housework, cooking, home maintenance, walking, accessing the community, fire safety, stairs, and carrying or moving items. She used a four-wheeled walker around the home and a power wheelchair in the community. She used a shower chair.
[15] JTB1, T5.
In an undated letter responding to the CEO’s initial rejection of SDA (so from late 2023),[16] Mr Panelo said:
[16] JTB1, T15.
Sophie's need for assistance in maintaining her balance, standing, and walking, coupled with her reduced physical stamina and the discomfort she experiences when walking, underscores the high level of her support requirements. …
Sophie's mobility restrictions also entail a high need for personal support, even when assisted by assistive technology and equipment (as described in Section 12(b)). The use of a power wheelchair and a 4‐Wheeled Walker, although beneficial, does not negate her requirement for direct human assistance. Sophie relies on personal support to maintain balance, stand, and walk, underscoring her considerable need for human support to engage in mobility‐related tasks.
In a report dated 19 February 2024,[17] Mr Simon Cochrane, occupational therapist (of the same organisation as Mr Panelo), said that Ms Manning had, as anticipated, moved out of Foyer Oxford. She was instead residing in an apartment on a short‑term lease, but it was not appropriately accessible and not a long-term solution. Since Mr Panelo’s assessment, Ms Manning had experienced a serious infection which had caused a decline in strength, balance and mobility. Her functional independence had decreased. Ms Manning was not able to use her four‑wheel walker in the home due to limited circulation space, and so was dependent on her power wheelchair. As Mr Panelo had said, Ms Manning would require high levels of support from a support worker should she be located in accommodation that is not accessible.
[17] JTB1, T11.
Mr Cochrane said that:
Sophie requires an SDA in the category of Fully Accessible Villa, 1 bedroom, 1 resident in order to support with Sophie’s unique needs, job requirements, and social preferences. A 1-bedroom SDA Villa would be the most suitable option to support her independence, ensure her privacy and confidentiality, provide psychological safety, and enable her to maintain a healthy social life. This tailored accommodation would promote her overall wellbeing and empower her to thrive in both her personal and professional life.
Other than SDA, Mr Cochrane that recommended supports were ‘predominately in relation to SDA in conjunction with Sophie’s current supports and providers’. He cited funding for adaptive equipment, a support worker once a week, funding for community access, funding for transport costs, occupational therapy, exercise physiology, a suitable bed and mattress, and funding for maintenance and repairs to Ms Manning’s power wheelchair.
Mr Cochrane indicated that if SDA was not approved, Ms Manning would require 39 hours per week of support, because of the need to be assisted with meal preparation (21 hours), household cleaning (2 hours), laundry and household management (2 hours), showering, grooming and dressing (7 hours), and toileting (7 hours). The level of support required would be ‘significantly lowered’ with appropriate accessible housing.
In cross-examination, Mr Cochrane accepted that 21 hours for meal preparation (based on one hour per meal, 3 times a day) might be somewhat excessive. There could be some reduction if multiple meals were prepared at once.
Mr Cochrane adopted Mr Panelo’s assessment of Ms Manning having a ‘level 4’ need for support. In oral evidence, he said that that was contingent on Ms Manning being in accommodation that met her disability needs. There would be a greater need for person-to-person support in a non-accessible environment.
In an undated statement,[18] Ms Manning said that after moving out of Foyer Oxford she spent a short time at a hotel. Her room was not accessible, though it was held out to be. In a report dated 23 February 2024,[19] Dr Helen Wilcox, general practitioner, said that Ms Manning had suffered a fall in February 2024, fracturing her left upper limb. The injury was directly attributable to Ms Manning’s unsuitable accommodation, which was non-accessible apart from its bathroom.
[18] JTB 18.
[19] JBT1, T12.
Ms Manning then spent a week at a homeless shelter before moving to the ‘Beacon’, which is an adult homelessness service.[20]
[20] JTB18.
In a report dated 12 June 2024,[21] Mr Cochrane said, in comparison to Ms Manning’s support needs if SDA was not approved, Ms Manning would need support for 11 hours per week, comprised of meal preparation (7 hours), household cleaning (2 hours), and laundry and household management (2 hours), with no allowance for physical assistance for self-care activities.
[21] JTB3.
In a report dated 13 August 2024,[22] Mr Cochrane commented at some length of the value of SDA compared to accessible public housing.
[22] JTB4.
In a letter dated 29 August 2024,[23] Ms Gabi Andrews, case worker at the Beacon, indicated that Ms Manning was living there at that time. The Beacon provides short time crisis accommodation. Ms Andrews outlined what other housing options had been explored for Ms Manning. She had aged out of youth accommodation. Disability-accessible private accommodation was non-existent. As to public housing, Ms Manning had been waitlisted, since 20 October 2023, for a 1-bedroom wheelchair accessible property. In a supplementary letter dated 30 October 2024[24] Ms Andrews clarified that properties in the public housing supply that are classified as wheelchair accessible are accessible for manual wheelchairs and not necessarily electric wheelchairs, which are bigger.
[23] JTB5.
[24] JTB10.
In oral evidence, Ms Andrews observed that the Beacon was set up for short term crisis accommodation, for people at risk of homelessness, and was not specifically designed as disability accommodation. Because of the nature of the service, there was little need for shopping and some other things that Ms Manning would be responsible for in another environment.
A letter from the Western Australian Department of Communities dated 3 September 2024[25] indicates that at that time the Community Disability Housing Program was housing applicants from 2020. The obvious implication is that Ms Manning would have to wait potentially another couple of years for a suitable property to become available.
[25] JTB6.
In a report dated 6 September 2024,[26] Ms Jemma Jury, occupational therapist, said that Ms Manning ‘is clinically assessed as having an “extreme functional impairment”, requiring assistance in many domains of daily living.’ Amongst other things, Ms Manning needed circulation and access space for a power wheelchair, meal preparation, house maintenance and cleaning. Ms Jury, like Mr Cochrane, set out reasons why public housing that might be available to Ms Manning would tend to be unsuitable.
[26] JTB7.
In a statement dated 29 September 2024,[27] Ms Manning addressed a question posed as to her person-to-person support needs in a ‘typical week’ if she was in wheelchair accessible accommodation. She said:
[27] JTB8.
If we assume the context of a wheelchair accessible kitchen with extreme limitations, which I have just described, I would require 90 minutes a day of meal preparation person to person support, or 30 for each meal. This would attempt to compensate for the lack of accessible kitchen features I need to prepare meals independently, such as cupboards and appliances at the right height and height adjustable benchtops which are the appropriate length, all of which are features of SDA dwellings.
I would also need regular person to person support with domestic assistance, for approximately two hours, equating to 120 minutes per week. This includes sweeping, mopping, cleaning different rooms of the house and cleaning the bins. Such domestic duties would also include assistance with laundry tasks, as almost all of the laundry setups that I have encountered throughout my journey with short-term and crisis accommodation have had inaccessible laundry setups at poor height for wheelchair users.
I would also require a level of ‘ad hoc support’ which would be difficult to facilitate in a wheelchair accessible dwelling, as such dwellings do not come with this level of support, Such ad hoc support would include plugging in appliances which could potentially be low on the floor (a task that is impossible for me to complete without assistance), or cleaning up dangerous spills such as water or glass which would be a significant safety hazard if I were to attempt such tasks independently. Most importantly, this ad hoc support would be required during medical or other emergencies, such as evacuations.
In total, my level of person to person support would equate to 15 hours a week.
That would reduce to 11.5 hours per week, she estimated, if Ms Manning was in an SDA dwelling.
In a report dated 11 October 2024,[28] Dr Wilcox said there had been a significant decline in Ms Manning’s functional capacity with lessened ability to walk, increased difficulty in transferring and loss of cardiovascular fitness.
[28] JTB9.
In a report entitled ‘response to statement of issues’ (undated, but following an assessment of Ms Manning on 1 November 2024),[29] Mr Cochrane said:
[29] JTB15.
Despite Sophie's ability to maintain her independence in activities of daily living and transfers, her physical limitations put her at a high risk of injury. Due to a lack of appropriate accommodation, initial observation of Sophie's task completion has been challenging, leading to reliance on self-reported information. However, further assessment and interviews revealed that Sophie's person-to-person support hours were significantly higher than her self-reported estimates. While Sophie wishes to preserve her independence, it has become evident that this can sometimes compromise her safety.
Additionally, while Sophie might not require substantial daily in-person assistance, her medical condition necessitates 24/7 accessible support due to the associated risks. As outlined in earlier reports, Sophie would require immediate support in case of an emergency, a fall or injury, or if an accident or spill occurred in her home.
Ms Manning provided a statement setting out a typical day (undated but in response to a document dated 26 March 2025).[30] Ms Manning was living at the Beacon, where meals were served in a communal area. Ms Manning identified that she needed person-to-person support to get meals, for example a staff member would carry food to her table and circulation space was poor. She had difficulty opening the door to her room, leaving the bathroom, filling a drink bottle, using a microwave, and exiting the building. She was able to do those things but took on some risk to her safety. If she went to exercise physiology (which she said was twice a week), she would travel in a ‘maxi taxi’ She needed assistance moving on and off exercise equipment and around the gym.
[30] JTB17.
Ms Manning made similar comments in her oral evidence. While staff might bring her meals, she was expected to return things to the dining room. Showering was difficult and the shower had poor drainage. There was a kitchenette, but it was not wheelchair-accessible. In all, she took on risks several times each day. When exiting the building, she almost always had to get someone to hold the door for her.
Ms Manning said she was able to catch public transport, which she did at least once a week for shopping. She had some NDIS funding for domestic assistance (meal preparation and cleaning), but she did not require assistance for meal preparation while at the Beacon because meals were provided, and cleaning needs were minimal for a small room. She did not have support with self-care activities.
Ms Davids was retained by the CEO. She did not assess Ms Manning and instead based her report, dated 14 January 2024,[31] on the various reports available. Ms Davids said that Ms Manning did not need, and did not receive, person‑to‑person assistance for mobility and transfers (where Ms Manning relies on a power wheelchair), communication, social interaction, self-management or self-care. Ms Davids said:
Ms Manning’s cerebral palsy has resulted in her having extremely reduced functional capacity to mobilise at home and in the community. Whilst she is capable of independence in transfers and bed mobility, she is unable to ambulate or mobilise without access to a 4-wheel walker for short distances or a wheelchair for long distances. She does not require person-to-person support for any personal activities or tasks. …
Ms Manning does not have a very high need for person-to-person supports when she is provided with appropriate assistive technology and an accessible home environment. She has demonstrated this repeatedly in the Foyer Oxford and Quest Apartments accommodations. In both, she only required assistance for cleaning and meal preparation, as described by both occupational therapists. Further neither occupational therapist recommended person-to-person support for any personal activities of daily living or community access is needed when she is living in an accessible environment.
In her oral evidence, Ms Davids said that Ms Manning would require assistance with heavy tasks, gardening (if required) and various home and maintenance tasks. That might be 2 to 4 hours per fortnight, depending on the house size. She may require meal preparation assistance for 90 minutes per day if there was no access to a wheelchair-accessible kitchen or 4 hours per week if there was some access, depending on the kitchen. In Ms Davids’s view, those were not person-to-person supports.
Ms Davids indicated that in order to determine whether a need for support was very high, there would be no better way to quantify the required support than by assessing the number of hours of support that would be required.
Ms Davids was asked about Mr Cochrane’s comments about Ms Manning bearing significant risks to her safety without the availability of personal assistance. Ms Davids could not see a basis for the suggestion that Ms Manning had a great need for constantly available support and noted that Mr Cochrane had not made other recommendations for simpler steps to mitigate safety risks.
At the time of the hearing, Ms Manning was deciding whether to accept an offer to move into public housing which she had inspected with Ms Andrews but found to be suboptimal.
[31] JTB21.
In all of that, the question is whether Ms Manning has a very high need for person‑to‑person supports, even with assistance technology, equipment or home modifications. Because I am to consider that presence of hypothetical home modifications, the inquiry is as to Ms Manning’s needs in a setting that may not be the setting she has been seen in when assessed by occupational therapists. Here, that works both ways. Some of Ms Manning’s needs may be greater at Foyer Oxford, her short-term hotel accommodation and the Beacon because of their respective suboptimal features. Some of her other needs may be less – as Ms Andrews pointed out, the arrangements at the Beacon temporarily removed the need for assistance with meal preparation. In closing submissions, Ms Prakash warned that Ms Manning should not be disadvantaged by her determination to remain independent. That is appropriately borne in mind. For both reasons, it is necessary to consider what Ms Manning needs, and not what Ms Manning has.
Consistent with that proposition, in HTDD and National Disability Insurance Agency [2024] AATA 725, which Ms Prakash referred to in her submissions,[32] the Tribunal found that the applicant had a high need for person-to-person supports despite that the need was going unmet.[33]
[32] Ms Prakash’s primary reliance on the decision appears to be its relevance to paragraph 34(1)(c) of the NDIS Act, but it usefully illustrates this point.
[33] At [206].
Ms Prakash also referred to TGJH and National Disability Insurance Agency (NDIS) [2025] ARTA 1013 and BMCX and Chief Executive Officer of the National Disability Insurance Agency (NDIS) [2025] ARTA 1999.
In TGJH, the applicant – like Ms Manning – had cerebral palsy amongst his diagnoses. It was apparently common ground between the parties that TGJH satisfied the requirements of section 12.[34] The Tribunal was satisfied that there was an extremely reduced functional capacity for self-care (largely by reference to the applicant’s continence issues) and that there was a very high need for person-to-person supports (which the CEO accepted was about 10 hours per day).[35]
[34] TGJH at [94].
[35] TGJH at [90] and [92].
In BMCX, the Tribunal accepted that the applicant had support needs for up to 15 hours per week but did not have very high person-to-person support needs for the purposes of section 12 or section 13 of the SDA Rules. Ms Prakash contrasted that case with Ms Manning’s case, where she says Ms Manning has a need for up to 39 hours of support per week (per Mr Cochrane’s report of 19 February 2024) but there are a number of reasons why that case is not usefully compared to Ms Manning’s case.
Ms Prakash submits that Tribunal decisions should be considered binding on the Agency and if participants with similar needs to Ms Manning have been granted SDA, so should she.[36] Whatever else might be said about that submission, there is limited value in finding other cases in which a person with cerebral palsy has been granted SDA and trying to find similarities with Ms Manning’s circumstances. The NDIS responds to impairments rather than diagnoses,[37] and the needs of the applicant in TGJH (or in any other decision) are not the needs of Ms Manning.
[36] Citing Kennedy and National Disability Insurance Agency [2022] AATA 265 at [52]: participants with similar circumstances and disability needs should receive similar amounts of supports in their plans.
[37] Mulligan v National Disability Insurance Agency [2015] FCA 544 at [16].
Where I have found that person-to-person supports includes those supports requiring the direct and personal attendance of the person providing the support – and so excludes meal preparation and cleaning – the evidence indicates that Ms Manning’s need for person-to-person supports is quite low.
Adopting Mr Cochrane’s assessment of a need for 39 hours assistance per week (of which 14 to 16 hours per week is person-to-person supports) would require the assumption of very unsuitable circumstances, which is not what the analysis in section 12 is directed to, because section 12 requires that appropriate home modifications (and other things as applicable in the circumstances) be taken into account.
I note that Mr Cochrane expressed the view on 1 November 2024 that Ms Manning’s need for person-to-person support was significantly higher than she self-reported, but in the same document Mr Cochrane clarifies that what is required is the availability of support (in the event of an emergency) not ‘substantial daily in-person assistance’.
I accept what Mr Panelo says in his letter of late 2023 about Ms Manning being reliant on personal support to maintain balance, stand and walk. That is consistent with what Ms Manning says about her need for assistance with moving on and off exercise equipment at the gym, and it is likely she has that need in some other settings. Similarly, I accept that Ms Manning will, at times, require a level of ad hoc assistance, on a time‑limited basis, for example if she was to spill something. Those requirements, though, do not amount to a very high need. They are intermittent and occasional needs, arising in a broader context in which Ms Manning can mobilise without assistance at home (albeit with some issues arising in specific accommodation settings) and in the community.
Ms Jury referred to Ms Manning having been clinically assessed as having an ‘extreme functional impairment’. I did not hear from Ms Jury and it is unclear if that is a reference to the definition of that term in the SDA Rules. Without any analysis of the requirements of section 12, I make little of that opinion as it relates to the legislative test.
On Ms Manning’s own account, as well as Mr Cochrane’s and Ms Davids’s, if Ms Manning was in suitable accommodation, her need for support is mostly limited to those supports that are not person-to-person supports, such as meal preparation and cleaning.
The conclusion that must be reached is that Ms Manning does not have a very high need for person-to-person supports. It follows that she does not have an extreme functional impairment, as defined in section 12.
Does Ms Manning have very high support needs?
As to whether a person has very high support needs, section 13 of the SDA Rules provides:
(1) A participant has very high support needs if:
(a) the participant has lived in specialist disability accommodation for extended periods and living in that accommodation has impacted on the capacity of the participant to transition to alternative living arrangements and support; or
(b) the participant has a very high need for person‑to‑person supports, either immediately available or constant, for a significant part of the day and either:
(i) there are limitations in the availability, capacity or capability of the participant’s informal support network or risks to its sustainability; or
(ii) the participant is at risk or poses a risk to others, and that risk could be mitigated by the provision of specialist disability accommodation, having regard to the participant’s response to risk and the interaction of the participant with the environment.
(2) For the purposes of assessing whether a participant has very high support needs, the CEO may have regard to:
(a) any assessment or examination conducted in relation to the participant, including any assessment or examination requested by the CEO under paragraph 36(2)(b) or 50(2)(b) of the Act; and
(b) the daily support requirements of the participant; and
(c) any assessment tool specified by the CEO for the purposes of this paragraph; and
(d) any other matters that the CEO considers appropriate.
As with the equivalent paragraph in section 12, there is no instrument for the purposes of paragraph 13(2)(c).
Paragraph 13(1)(a) cannot be met. Ms Manning has not previously lived in SDA.
Turning to paragraph 13(1)(b), there are 2 components, both of which need to be met. The first again is as to Ms Manning’s needs for person-to-person supports. Compared to section 12, though, the inquiry is slightly different. The need for person-to-person supports need not arise by reference to an activity area in which there is an extremely reduced functional capacity. The very high need can be for the immediate availability of person-to-person supports (not necessarily the provision of person-to-person supports). The very high need must be there for a significant part of the day.
Unlike section 12, it is not so clear that the analysis is to assume that the person lives with suitable assistive technology, equipment and home modifications (as applicable in the circumstances). The assessment of need, though, is a practical one. When making a practical assessment of Ms Manning’s need, the starting point cannot be that she has to live without the assistance technology (for example, a power wheelchair) that she is so clearly dependent on. It is also appropriate to examine Ms Manning’s broader circumstances.
The evidence going to that issue is the same as I have set out above in relation to the application of section 12.
Again, where person-to-person supports are taken to be those that require the attendance of both the person providing the support and the person receiving the support, the evidence is not that Ms Manning has a very high need for person-to-person supports (or immediate availability of person-to-person supports) for a significant part of the day. Where she is largely independent with the activities of self-care and can mobilise unaccompanied in the community, her need for person‑to‑person supports does not meet that threshold.
I note that Ms Manning has had a previous fall (attributable, according to Dr Wilcox, to features of her unsuitable accommodation at the time), and Mr Cochrane has pointed to a need for immediate support in the case of an emergency or injury. I do not think Ms Manning’s history, though, suggests that level of need. She has been living independently in a number of settings and the history of a single fall does not give rise to a very high need for a person to be immediately available to her to assist, for a significant part of the day. As Ms Davids pointed out in the hearing, despite making that comment, Mr Cochrane did not recommend any other steps to mitigate the risk (for example, communication devices) that would suggest that there was a high need.
The second component of paragraph 13(1)(b) is set out in subparagraphs (i) and (ii) and concerns the limitations of the informal support network, or the person’s risk to themselves or others. As the definition of ‘very high support needs’ requires that both components of paragraph (b) be made out, it is unnecessary to determine the issue.
Conclusion
Because Ms Manning does not have an extreme functional impairment as defined in section 12 or very high support needs as defined in section 13, section 11 says that she is ineligible for SDA.
It is unnecessary to determine the remaining issues. The reviewable decision will be affirmed.
I acknowledge that this is a difficult result for Ms Manning. A lot of the evidence has been directed at the benefit Ms Manning would derive from SDA, her risk of homelessness and disadvantage if she cannot access SDA and establishing that her other accommodation options are unsuitable. I have not had cause to set out that evidence, except tangentially, because the unsuitability of accessible housing in the public housing supply is not relevant to the analysis required by section 12 or section 13 of the SDA rules.[38] I do not doubt, though, what Ms Manning says about her experience of navigating housing options in difficult circumstances.
[38] See Charrington and National Disability Insurance Agency [2022] AATA 1160 at [43] and Oczenaschek and National Disability Insurance Agency [2024] AATA 2889 at [73] both of which were referred to in Ms Flinn’s submissions.
| Dates of Hearing: | 11 and 12 August 2025 |
| Applicant’s Representative: Counsel for the Respondent: Solicitors for the Respondent: | Ms N Prakash Ms J Flinn Mills Oakley Lawyers |
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