Marsh and National Disability Insurance Agency (NDIS)
[2025] ARTA 1928
•29 September 2025
Marsh and National Disability Insurance Agency (NDIS) [2025] ARTA 1928 (29 September 2025)
Applicant/s: Ruth Marsh
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/7371
Tribunal:General Member S Gooch
Place: Adelaide
Date:29 September 2025
Decision:
The decision under review is affirmed pursuant to section 105(a) of the Administrative Review Tribunal Act 2024
Statement made on 29 September 2025 at 5:15pm
Catchwords
National Disability Insurance Scheme – reviewable decision of CEO – Statement of Participant Supports – reasonable and necessary supports – assistive technology – replacement request – section 34 considerations – value for money – decision affirmed
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Schedule 16, item 24.
National Disability Insurance Scheme Act 2013 (Cth), ss 3, 4, 24, 25, 33, 34, 35
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 Items 129 of Schedule 1
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth); r 3.1
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 Schedule 1
Cases
Drake and Minister for Immigration and Ethnic Affairs (No. 2) 1979 2 ALD 634
Secondary Materials
NDIS Operational Guidelines - Reasonable and Necessary Supports, dated 28 March 2025.
NDIS Operational Guidelines – Assistive Technology (equipment, technology and devices) dated 20 December 2023
NDIS Operational Guidelines – Vehicle modifications and specialised driver training dated 27 March 2025
Reasons for Decision
This is a review of a decision of a delegate of the CEO of the National Disability Insurance Agency (‘the Agency’) to approve a statement of participant supports for Ms Marsh’s plan.
Ms Marsh is a 45-year-old woman living with her husband and two children in Queensland. Ms Marsh has been diagnosed with Hypermobile Ehlers Danlos Syndrome (hEDS) and rheumatoid arthritis (RA). She gained access to the National Disability Insurance Scheme as a result of physical impairments attributable to these two conditions. It is not in dispute that Ms Marsh continues to meet the access requirements as a result of these impairments.
Relying on the Agency’s Statement of Facts, Issues and Contentions (SFIC) the background to this application commenced with the Agency making a decision to approve a Statement of Participant Supports (SOPS) on 24 March 2023. Ms Marsh requested an internal review of this decision and on review (on 27 September 2023) the decision was varied.
On 4 October 2024 Ms Marsh applied to the Administrative Appeals Tribunal (AAT) for review of that varied decision and in the course of alternative dispute resolution agreement was reached on other supports in dispute. By the time the matter came to hearing the Tribunal was advised the only supports in dispute were a new wheelchair and new power assist add-on and a wheelchair lifting hoist proposed for Ms Marsh’s car.
From 14 October 2024 the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be applications 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.[1] This decision and statement of reasons is made by the Tribunal.
[1] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Schedule 16, item 24
A video hearing was held on 12 and 13 August 2025. Ms Marsh was represented by Christopher Bilboe of Intrepidus Law and the Agency was represented by Arron Hartnett of Counsel instructed by Mills Oakley.
The Tribunal was provided with:
a. a joint tender bundle which will be referred to as Exhibit 1;
b. the original assistive technology assessment report entitled ‘General Assistive Technology Assessment: Complexity Level 4’ by Alice O’Connor. Occupational therapist, dated 18 February 2021 which will be referred to as Exhibit 2;
c. images of the Alber E-fix power assist provided after the hearing, which will be referred to as Exhibit 3.
For the reasons set out below the Tribunal affirms the decision under review.
ISSUES
The issue before the Tribunal is whether the requested supports are ‘reasonable and necessary’ supports for the purposes of sections 33 and 34 of the NDIS Act. The supports in question are:
a. Purchase and configuration of a new aluminium RGK TIGA manual wheelchair with Alber E-Fix power assist. This will replace Ms Marsh’s current titanium RGK Sub4 Octane manual wheelchair with Smoov power assist; and
b. purchase and installation of a vehicle wheelchair hoist.
THE LEGISLATIVE FRAMEWORK
10.The NDIS Act sets out the provisions by which the Agency is created and the manner in which the Scheme is to be administered is described.
11.Chapter 1, Part 2 of the NDIS Act sets out the Act’s objects and the principles to be applied when undertaking actions under the Act. The objects describe aspirations aimed at supporting the independence, choice and control and social and economic participation of people with disability. The provision of reasonable and necessary supports will be directed at achieving these objects for participants of the Scheme.[2]
[2] Section 3 of the NDIS Act
12.The principles stress the rights of people with a disability to dignity, to participation and contribution to social and economic life and to the capacity to realise their potential in pursuit of their goals.[3]
[3] Section 4 of the NDIS Act
13.Both the objects and the principles state that in giving effect to the objects of the Act, or in exercising powers under the Act, regard is to be had to the need to ensure the financial sustainability of the Scheme.[4]
[4] Section 3(3)(b) and 4(17) of the NDIS Act.
14.Access issues are dealt with in Chapter 3, Part 1 of the NDIS Act. These provisions set out the criteria an applicant must meet (under either the disability requirements or under the early intervention requirements) in order to become a participant in the Scheme.
15.Part 2 of Chapter 3 sets out matters in relation to the development and administration of participants’ plans. Generally, a participant’s plan must include:
a. a statement of participant goals and aspirations which they have prepared; and
b. a statement of participant supports which includes the general supports that may be provided, and the reasonable and necessary supports that will be funded under the Scheme.
16.Section 33(5) provides a list of all the factors the CEO must consider when deciding whether or not to approve a statement of participant supports. Those relevant to this application include:
a. the participant’s statement of goals and aspirations;
b. relevant assessments conducted in relation to the participant;
c. being satisfied in relation to all the criteria set out in section 34;
d. having regard to the NDIS Rules made for the purpose of section 35 of the Act.
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (the Amending Act) made significant changes to the NDIS Act. This Act commenced on 3 October 2024.
18.Item 129 of Schedule 1 of the Amending Act provides that sections 33, 34 and 35 as amended (all of which deal with the development of participant plans) apply to any old framework plans which are approved or varied on or after the Amending Act’s commencement. Ms Marsh’s plan is an ‘old framework’ plan for the purposes of the Act.
19.The Tribunal accepts that the practical effect of any variation to a plan ordered by the Tribunal as a result of this review, will result in a variation to the plan which takes place after the commencement of the Amending Act. As a result, the Tribunal accepts the amendments made to the NDIS Act apply to this review.
20.Section 34 (as amended) sets out considerations, all of which must be met, before a support will be funded under the Scheme. It reads:
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see 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 paragraph (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 the statement of participant supports; and
(b)A participant’s disability support needs arising from an impairment in relation to which the participant meets the access 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 the paragraphs (1)(aa) to (f).
21.Section 35 of the Act sets out matters which Rules made in relation to the statement of participant supports may address. These (among other things) include methods or criteria to be applied in deciding supports which will be funded and rules specifically identifying those supports that will and will not be funded under the Scheme.
22.The relevant rules to be applied in consideration of the funding of reasonable and necessary supports are:
a. the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules); and
b. the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (the Transitional Support Rules). These rules were made under Item 138 of the Amending Act and commenced on 3 October 2024.
23.The Agency also publishes Guidelines to assist in making decisions in accordance with the NDIS Act. The Guidelines are policy documents without legislative force and the Tribunal is not bound by them. However, it is generally held they should be applied where there is no conflict with the terms of the Act.[5] The relevant operational guidelines in this matter are:
a. NDIS Operational Guidelines – Assistive Technology (AT Guidelines) dated 20 December 2023
b. NDIS Operational Guidelines – Vehicle modifications and specialised driver training (Vehicle Mod Guidelines) dated 27 March 2025
[5] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
The Agency’s position
24.Relying on the Agency’s Statement of Facts, Issues and Contentions (SFIC)[6] the Agency advised that Ms Marsh was given once-off capital funding for a titanium RGK manual wheelchair (MWC) with a Smoov power assist attachment in 2021. Funding is recorded in the SFIC as having been $8,678.50. It is not clear whether this was just for the MWC or included the power assist. Other figures in the tender bundle suggest that this was not the total amount of funding provided for the original AT purchase.
[6] Page 554 – 555 of Exhibit 1 at [60] – [66]
25.The current request by Ms Marsh is for a new MWC (a RGK TIGA) with customised Alber e-fix power assist device. The wheelchair chosen is identical to Ms Marsh’s current MWC but is made from aluminium rather than titanium. As required by the Assistive Technology Guidelines, an assistive technology assessment was completed by Ms Vella,[7] occupational therapist, and a quote obtained in the total amount of $34,722.[8]
[7] Pages 405 to 461 of Exhibit 1
[8] Page 498-499 of Exhibit 1
26.The Agency notes Ms Marsh is said to require the new MWC and power fix because her condition has deteriorated, and she no longer has the grip strength necessary to safely manage her current power assist device. The new power assist device is not compatible with her current MWC.
27.The vehicle hoist is said to be required because the combined weight of the proposed MWC and power assist is 19.3kg. This is simply too much for Ms Marsh to lift by herself. A quote for the hoist has been obtained (in line with the Vehicle Modification Guidelines) and is in the total amount of $16,712.50.[9]
[9] Page 462
28.In their SFIC the Agency argued that Ms Marsh currently only uses her MWC when she goes out into the community, usually relying on a single point walking stick when mobilising at home. As Ms March had previously made statements suggesting she rarely goes out due to fatigue, the Agency argues the purchase of this equipment cannot be said to be necessary, nor could it be said to be value for money.
29.At hearing the Agency varied this position to advise their main contention was that the request could not be said to meet the ‘value for money’ criteria set out in section 34(1)(c) of the NDIS Act.
The applicant’s position
30.Relying on the applicant’s SFIC the applicant’s position is simply that each of the requested assistive technology supports are reasonable and necessary supports pursuant to section 34 of the NDIS Act.[10]
[10] Page 508 of Exhibit 1 at [4]
31.At hearing it was argued that the requested supports would allow Ms Marsh to increase her social and economic participation, and their provision was supported by the opinion of Ms Vella, occupational therapist, who undertook investigation of these technologies and provided two reports in support.
The Evidence - Impairments
32.Ms Marsh gained access to the Scheme on the basis of impairments attributable to her diagnosed conditions of hEDS and rheumatoid arthritis.
33.The medical evidence indicates that hEDS is a hereditary disorder of connective tissue which results in abnormal structure or function of collagen and allied connective tissue proteins. In Ms Marsh’s case this results in joint hypermobility, instability and dislocation, skin hyperextensibility and risk of other structural weaknesses such as hernia and organ prolapse through the pelvic floor. Ms Marsh experiences high levels of pain and fatigue, and reduced upper and lower limb strength. Fluctuations in her blood pressure can result in dizziness. She has had surgery to address recurrent left thumb subluxations and chronic osteoarthritis pain.[11] It was Ms Marsh’s oral evidence that she expects to have surgery to her right hand in the near future
[11] Pages 45, 78-79, 276, 288-289, 376-378 Exhibit 1
34.Ms Marsh has also been diagnosed with rheumatoid arthritis with this condition impacting joint linings, causing painful swelling, stiffness, risk of bone erosion and joint deformity.[12]
[12] Pages 45, 276,
35.As a result of these conditions Ms Marsh is at risk of falls, experiences significant pain and fatigues easily. She uses a walking stick to mobilise at home (and for short distances in the community) and relies on her MWC when travelling longer distances in the community. Her recent surgery has reduced her ability to grip, which has particularly impacted her ability to utilise her manual wheelchair. [13]
[13] Pages 276-277, of Exhibit 1
36.In a report by Shelby Hewitt, occupational therapist,[14] Ms Hewitt noted that as a result of the surgical fusion of Ms Marsh’s left thumb joint, she had lost range of motion and grip strength in her left hand, making it difficult for her to safely grip and move the self-propel wheels on her wheelchair. Ms Marsh is required to use her hands on the self-propel wheels to control and stop her wheelchair.
Proposed MWC and power assist options.
[14] Page 280 on of Exhibit 1
37.Esther Vella, occupational therapist, completed an assessment of MWC and power assist options for Ms Marsh and provided a report dated 16 June 2025.[15] Ms Vella reported Ms Marsh’s current MWC as purchased was an RGK Sub4 Octane, being an ultra-light weight, folding, custom fit, titanium wheelchair. The cost of the frame only was noted to have been $12,115. This does not align with the Agency’s statement that the wheelchair purchase was the result of a one-off assistive technology grant in the amount of $8,678.50.
[15] Pages 405-461 of Exhibit 1
38.A Smoov power assist device was also purchased at the same time. This device attached to the rear frame of the MWC (without having to modify the frame) and was controlled by a palm sized dial on the outside of the wheelchair.[16]
[16] Page 425 of Exhibit 1
39.This combination of device and wheelchair was purchased as a result of recommendations in an AT report written by Ms Alice O’Connor, occupational therapist, on 18 February 2021.[17] Although Ms O’Connor originally recommended a different power-assist device, by the time the request was approved she felt the Smoov was a better option. At the time of the assessment Ms Marsh was working 21 hours a week and was utilising an off-the-shelf Karma wheelchair which she kept in her vehicle at all times.[18] It appears that the major difficulty with the off-the-shelf MWC was that it was too difficult for Ms Marsh to self-propel leading to an exacerbation of her symptoms.[19]
[17] Exhibit 2
[18] Page 6 of Exhibit 2
[19] Page 10 of Exhibit 2
40.Ms Marsh was noted to have issues with grip strength already, being unable to squeeze toothpaste onto her toothbrush or cut up her own food. As a result, Ms O’Connor recommended a power assist for Ms Marsh’s MWC.
41.Ms O’Connor considered several MWC options, including a Motion Composite Ultra-Lightweight Helio C2 which had a frame cost of $5,700 and an ability to be paired with a power assist device. This was not Ms Marsh’s preferred wheelchair however, so the RGK Sub4 Octane with a frame cost of $12,115 was chosen.[20]
[20] Page 9 of Exhibit 2
42.Ms O’Connor noted that best practice as outlined by RESNA was that ‘the most appropriate manual wheelchair for individuals with disabilities who will utilise the wheelchair for an extended period is a properly configured, fully customisable wheelchair of the lightest weight possible’.[21] According to Ms O’Connor, Ms Marsh’s RGK Sub4 Octane met that criteria. It was required because at that time Ms Marsh was still working and utilising her chair more.
[21] Page 11 of Exhibit 2
43.There was no braking mechanism included with the Smoov power assist, so Ms Marsh was required to slow her wheelchair by gripping the wheel push rims.[22]
[22] Page 425 of Exhibit 1
44.With the deterioration in her condition Ms Marsh states she is no longer able to safely slow her wheelchair when on ramps, hills or other inclines. This is corroborated by her hand therapist[23] and her occupational therapist, Ms Hewitt.[24] In her oral evidence she advised she had had one fall recently due to difficulty stopping her chair on an incline.
[23] Page 57 of Exhibit 1
[24] Page 319 of Exhibit 1
45.Ms Vella investigated a number of power assist options which offered a system for braking the chair not reliant on Ms Marsh’s own grip or strength. She reported that she was unable to identify any option which was compatible with Ms Marsh’s current MWC.[25]
[25] See report from page 405 of Exhibit 1
46.In the course of her investigation Ms Vella came across the Alber E-fix power assist device. This device involves drive wheels which are attached to the wheelchair frame and a u-shaped joystick type controller with a brake mechanism. When the user removes their hand from the controller, the chair stops, requiring no strength or grip on the part of the user. Unfortunately, as Ms Marsh’s MWC is titanium, the Alber E-fix could not be fixed to her chair (the metal being too difficult to cut or weld).
47.Instead, Ms Vella proposed obtaining a replica of Ms Marsh’s current chair, except that it would be made of aluminium. This is the RGK Tiga, and will allow the Alber E-fix to be attached to the frame. Part of Ms Vella’s consideration of this combination took account of Ms Marsh’s satisfaction with her current chair. Ms Vella agreed that the current wheelchair was still in very good condition and did not need to be replaced, apart from the issue of power-assist compatibility.
48.At hearing Ms Vella was not able to say whether Ms Marsh ever used the MWC in the community without the power assist,[26] but it was Ms Marsh’s evidence that the only time she did was if she was accompanied by her family or a support worker.
[26] Oral evidence of Ms Vella
49.A quote for the provision of the new set up was provided by ILS Rehab in the total amount of $34,772.00.[27] This quote is made up of the following items:
[27] Page 498-499 of Exhibit 1
a. $13,348.00 for wheelchair frame;
b. $301.00 for wheelchair footrest;
c. $2,027.00 for 24 inch rear wheels;
d. $259.00 for quick release axle pins;
e. $1,170 for sideguard;
f. $1,052.00 for backrest;
g. $288.00 for foam cushion;
h. $15,491.00 for Alber E-fix power assist device with joystick;
i. $280 cost to retrofit power assist unit to chair;
j. $480.00 for configuration and final set up with ILS seating specialist.
50.Ms Vella confirms that the combined weight of the RGK Tiga wheelchair and the Alber E-Fix power assist is 19.3 kg. This is beyond Ms Marsh’s lifting capability.
51.Ms Vella provided details of other alternatives that had been considered but rejected as unsuitable. These included:
a. A Klaxon Kick power assist. This had been rejected in the first assessment by Ms Alice O’Connor, OT, as it required sustained pressure on the accelerator control to move. Due to her reduced upper limb strength and increased pain Ms Marsh was unable to maintain the required pressure.
b. Light Drive power assist. Again this had been rejected by Ms O’Connor as Ms Marsh did not have the strength required to mount the device on the wheelchair, or to lift it due to its combined weight (motor and battery).
c. Empulse M90 power assist. This was rejected after testing by Ms Marsh as the joystick was too sensitive and she was concerned she would not be able to properly control it in crowded situations. The braking mechanism was observed to jolt the chair and Ms Marsh had difficulty releasing the M90 wheel due to the complex mechanism. Lifting caused difficulty also.
d. Alber E-motion wheels. This power assist does not have a joystick and still requires the user to self-propel. It has no braking capability and was deemed unsuitable.
e. Rio Mobility Firefuly 2.5 Electric Scooter. This was rejected as the overall length of the power add-on and the MWC exceeded the space within the Marsh’s vehicle. Affixing the add-on to the scooter for each use would be beyond Ms Marsh’s capacity. The braking mechanism relied on user force which is the same difficulty as with her current device.
f. Batec Air – the overall length of the add-on and MWC exceeded the room in the Marsh’s car. It was too difficult for Ms Marsh to affix the add-on to the MWC by herself, so it was not possible to separate the components for storage.
g. Albert Twion. This product was considered unsuitable as it was too heavy and was difficult to manoeuvre in a straight line.
h. Alber e-Pilot. This product was considered unsuitable as it was too heavy, was too long to fit in the car, and was difficult to separate and re-attach.
i. Paws City. This add-on was also too long, too heavy and too difficult to assemble and disassemble.
j. Quickie ixpress. This add-on was deemed not suitable as it was not compatible with Ms Marsh’s chair.
k. Pride Power Assist HD. This product was deemed unsuitable as it was too heavy.
l. Enjo Power Assist. This product was deemed unsuitable as it was designed to assist an attendant in propelling the chair, and was not intended as a user operated model.
m. Power wheelchair. Ms Vella was of the view these were not suitable options as they would be too large for Ms Marsh’s car and she would therefore be reliant on wheelchair taxis.
52.In her oral evidence and in response to a question from Mr Hartnett, Ms Vella indicated a large power wheelchair would cost around $50,000 to $60,000 and would be so large that it would be unable to be placed in the rear of an ordinary car. This would require either a new vehicle or reliance on wheelchair taxis. Ms Vella felt that having to rely on wheelchair taxis was not commensurate with being a busy mum to young sons.
53.Ms Vella also briefly discussed what she referred to as the ‘poxy, little ones’, motorised wheelchairs she thought would only be suitable to go to the local shopping centre once a week but not for every-day use. In her view these chairs did not provide the postural support and longevity that Ms Marsh required and were not commensurate with encouraging community participation. It was clear from Ms Vella’s evidence that no significant investigation into these chairs as options had been undertaken. Ms Vella noted that her focus had purely been on finding an alternative power assist for Ms Marsh given the problem was the lack of braking power on the current device. She had not turned her mind to alternative wheelchair options.
54.In response to further questioning, Ms Vella acknowledged that where she had referred (in her report) to Ms Marsh using her wheelchair ‘for 8 hours a day’, this information had been taken from a functional capacity assessment undertaken on 12 June 2023 and was not based on investigations of her own.
55.The report which included the information from the 12 June 2023 assessment is dated 18 August 2023 and was authored by Ms Hewitt, occupational therapist.
56.The report includes information gathered at Ms Hewitt’s original assessment of Ms Marsh in October 2021.[28] Because of the way the report is written, it is often difficult to know what information applies to each assessment date.
[28] From page 280 of Exhibit 1
57.The 18 August 2023 report does refer to Ms Marsh being in her wheelchair for 8 hours a day.[29] From the context of additional information in the report, however, it appears likely this observation applies to the circumstances in place in 2021 and not those in 2023. I say this because in 2023, Ms Marsh is elsewhere reported as being ‘unable to utilise her MWC’ following fusion surgery to her left thumb.[30] It was also noted in the report that Ms Marsh used her MWC within the community[31] but that post surgery she was unable to manage without support workers.[32]
[29] Page 303 of Exhibit 1
[30] Page 299 of Exhibit 1
[31] Page 299 of Exhibit 1
[32] Page 300 of Exhibit 1
58.In the original report, dated 15 November 2021, the same sentence is reproduced (at page 303 of Exhibit 1), namely ‘Ruth uses her manual wheelchair for majority of her day (approximately 8 hours a day)’. It appears therefore, that some of the information in the August 2023 report has been copied and pasted from the 2021 report and then relied on without clarification by Ms Vella in her 2025 report.
59.Ms Vella acknowledged she did not know what Ms Marsh’s current or projected usage for the MWC and power-assist device was. It was her evidence that where a full FCA had been undertaken, it was considered poor use of NDIS funds to repeat this assessment. She acknowledged that reporting about Ms Marsh’s capacity in her assistive technology report was based on the earlier FCA and not her own assessment. This must impact on the weight I am prepared to give to the assistive technology report and recommendations.
60.It was Ms Marsh’s evidence at hearing that she generally did not use her MWC in her home and only used the power assist when travelling long distances outside. Those occasions included hospital visits (when she had support worker assistance) or occasional excursions (such as the occasion on which she had recently fallen). When Ms Marsh went out with her husband, generally they used the MWC without the power assist.
61.It is acknowledged that Ms Marsh hopes to find employment in social policy work, but her evidence is that due to her fatigue, such employment would need to include the flexibility to allow her to work from home. Ms Marsh’s evidence to Ms Gauvin, an independent occupational therapist commissioned by the Agency for assessment, was that she alternates her day’s activities with rest periods in bed due to fatigue and pain.[33]
[33] Pages 529-532 of Exhibit 1
62.Ms Gauvin gave oral evidence at the hearing. She had attended on Ms Marsh at home for an assessment related to this application.
63.In relation to mobility Ms Gauvin noted that Ms Marsh walked with a single point stick within her home and yard but relied on a wheelchair for longer community distances. While acknowledging Ms Marsh’s wish for a power assist that incorporated braking capacity, Ms Gauvin opined that Ms Marsh might also benefit from a lightweight walking aid (such as a forearm seat walker/rollator) so as to encourage her to maintain her walking endurance and functional mobility.[34]
[34] Page 521 of Exhibit 1
64.According to Ms Gauvin’s report, Ms Marsh’s description of a ‘typical day’ would vary according to what she had done the day before. If she had been out in the community, driving and talking with people, Ms Marsh felt she might require a recovery day the next day.[35] Ms Marsh stated she would often return to bed after her morning grooming due to pain experienced in prolonged sitting and standing.[36] She reported she alternates between activities and bed throughout the day.[37] When her son has group Ms Marsh may drive him there if she is able to grip the steering wheel of the car effectively. Sometimes she is unable to grip and cannot drive. If she does drive her son, Ms Marsh’s evidence was that she will rest in the car while her son’s group is on.[38] Ms Marsh stated to Ms Gauvin that she finds driving a difficult task.[39]
[35] Pages 525 to 526 of Exhibit 1
[36] Page 530 of Exhibit 1
[37] Page 530 of Exhibit 1
[38] Page 530 of Exhibit 1
[39] Page 531 of Exhibit 1
65.Ms Gauvin was not specifically asked to address the AT request in her report. In her oral evidence at hearing, she gave evidence arising from her in-person assessment of Ms Marsh and her general experience as an occupational therapist.
66.She stated that based on Ms Marsh’s statements, Ms Marsh’s use of her MWC and power assist was only occasional. For occasional use Ms Gauvin was of the view that the proposed MWC/power assist combination was not necessary, and that it would be reasonable to consider an ‘off-the-shelf’ light, motorised wheelchair instead. She noted that Ms Marsh did not require an individually scripted chair because she was not reliant on the chair for prolonged or all day use.
67.Ms Gauvin noted that such a chair would be less expensive (in the vicinity of $5,000) and was likely to weigh up to 14.5kg, including the battery.
68.Ms Gauvin was of the view that as Ms Marsh would retain the use of her current scripted chair, the motorised chair for occasional use was a reasonable alternative.
Proposed vehicle lift
69.Ms Marsh and her husband own a 2020 Kia Sportage.[40] This vehicle is registered to Mr Dane Marsh, but he confirms Ms Marsh has primary access to and daily use of this vehicle.[41]
[40] Page 499 of Exhibit 1
[41] Page 500 of Exhibit 1
70.Ms Vella conducted an assessment of the vehicle and undertook investigations to identify an appropriate wheelchair hoist for the vehicle given her recommended MWC/power assist combination was too heavy for Ms Marsh to lift.
71.A quote was provided by Mobility Modification Services dated 7 June 2025. This quote was in the amount of $16,712.50 and included:
a. Supply and installation of a 100kg autochair hoist crane stile with A-frame mount kit ($14,250.00);
b. Supply and installation of custom lifting brackets to lift rigid manual wheelchair ($980.00);
c. Supply and installation of restraint kit to secure chair ($795.00);
d. Freight and postage ($595.00);
e. Workshop consumables ($30.00).
72.Ms Vella’s report dated 17 June 2025 noted that Ms Marsh used the family car for all her transport. The selected hoist would allow for Ms Marsh’s wheelchair and power assist to be lifted and stored in the rear of the vehicle. Ms Vella’s oral evidence was that currently Ms Marsh must lift her wheelchair in and out of her car and that she risks a manual handling injury in doing so.
73.Ms Marsh’s oral evidence to the Tribunal was that in placing her MWC in the car she removed the wheels and then could lift the chair separately. She often put the power assist into the passenger seat section of the car as it was not so far to lift.
74.Ms Vella considered other options instead of a hoist, such as:
a. dismantling the wheelchair and power assist each time to manually store the individual components in the rear of the vehicle. This was considered unsuitable as it would require total reassembly at the journey’s end, creating a further manual handling risk. This was also considered unsuitable for times in which there would be adverse weather conditions.
b. a Wymo vehicle hoist. This hoist was deemed unsuitable as it stored the wheelchair on the roof of the car. It was Ms Marsh’s preference, that owing to the expense of the MWC and power assist, both devices should be safely stored undercover and inside the vehicle.
Section 33 Considerations
Section 33(5)(a) – Participant goals and aspirations
75.Ms Marsh’s goals as set out in her current plan are as follows:[42]
[42] From page 196 of Exhibit 1
a. To be supported to complete daily activities so that I can fulfil my parenting duties;
b. To be supported to complete all daily living activities so that I can remain as independent as possible within my home and when accessing the community;
c. In the longer term I would like to be assisted to maintain my current capacity so that I remain safe in my home and when accessing the community;
d. In the longer term I would like to be assisted to access the community so that I can make new friendships and reconnect with old friends within the community;
e. In the next two years I would like to be supported to build my capacity to self-manage my NDIS plan so that I can have more control over my plan;
f. In the longer term, I would like to be assisted to maintain my current employment at the current level so that I can maintain financial independence;
g. In the longer term I would like assistance to maintain informal supports so that I can build friendships and supports around me.
76.These goals do not seem to have been amended from Ms Marsh’s 2022 plan.[43] At that time Ms Marsh was still working part-time. Although she is no longer in that role, at hearing Ms Marsh expressed a desire to return to the workforce.
[43] From page 177 of Exhibit 1
77.Ms Marsh is unable to walk longer distances in the community due to her reduced muscle strength and power, poor balance and fatigue.[44]
[44] Pages 86, 278 and 298 of Exhibit 1
78.It was Ms Marsh’s evidence to the Tribunal that she is no longer safe mobilising alone in the community while using her current MWC and power assist device. The lack of independent braking capacity means that she is unable to reliably control and stop the MWC in any situation in which she is travelling on a slope. She gave evidence about a recent incident in which she tipped her wheelchair over manoeuvring down a ramp. This difficulty with her MWC is corroborated by her treating practitioners and Ms Gauvin.[45]
[45] Pages 56, 72, 83-84, 242, 262, 299 and 521 of Exhibit 1
79.Having a wheelchair which allows her to access the community safely and independently would assist Ms Marsh to meet her goals of independence in the community, access to work and better connection with friends in the community.
80.Having a hoist would assist Ms Marsh in meeting her safe community access goals by avoiding potential manual handling injuries when lifting her MWC out of her car. This is corroborated by Ms Vella’s assessment.
Section 33(5)(b) – relevant assessments conducted in relation to the participant
81.I have considered and discussed the relevant assessments conducted in relation to the participant above. Those assessments include Ms Hewitt’s 2021 and 2023 assessments, Ms O’Connor’s 2021 assessment, Ms Vella’s 2025 assessment and Ms Gauvin’s 2025 assessment.
Section 33(5)(c) – satisfaction as to the section 34 criteria.
82.Section 34 sets out all the criteria the decision maker must be satisfied of before specifying the reasonable and necessary supports which will be funded. This section is set out in full at paragraph 20 above.
Section 34(1)(aa) – necessary to address a need arising from impairments in relation to which the participant meets the disability requirements.
83.Having regard to the evidence I am satisfied and find that Ms Marsh’s MWC and power assist combination is no longer effective in meeting the mobility and community access needs of Ms Marsh because of impairments attributable to her hEds and RA. As a result of her deteriorating grip strength Ms Marsh can no longer reliably stop her chair when negotiating inclines or ramps. Ms Marsh also has limited lifting capacity and may require a hoist to allow her to store and remove heavy assistive technology options from her vehicle.
84.I am satisfied that the supports sought by the applicant are necessary to address needs arising from the impairments of hEds and RA - impairments for which the applicant continues to meet the disability requirements. Section 34(1)(aa) is met.
Section 34(1)(a) – the support will assist the participant to pursue the goals, objectives and aspirations included in their plan
85.Ms Marsh’s goals and aspirations include being able to be as independent as possible when accessing the community, and to access the community to increase her connections with friends.[46] The evidence establishes that as a result of her impairments Ms Marsh has limited capacity for mobility, particularly over long distances. An effective wheelchair with powered capacity would assist her to mobilise in the community as independently as possible.
[46] Page 2 of Exhibit 2
86.If such a combination is beyond Ms Marsh’s safe lifting capacity, a hoist would address this issue and enhance Ms Marsh’s independence in the community.
87.I am satisfied that section 34(1)(a) is met.
Section 34(1)(c) – value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative supports.
88.Ms Marsh currently has a lightweight, scripted manual wheelchair and power assist which was provided by the NDIS and is no more than 3 years old. The chair was the most expensive of those trialled at the time of the original AT request and apart from a notation that it was Ms Marsh’s preferred chair, there is no explanation as to why that particular chair was chosen. Ms Marsh is so happy with this chair that the proposal is to obtain a replica model, scripted to the same specifications, but simply manufactured in a different metal. The different metal is required as the Alber E-Fix cannot be affixed to the titanium frame of the current chair.
89.There is no fault with either of the current devices other than that the Smoov power assist is no longer appropriate given it does not have a braking mechanism by which the chair may be slowed without the need for grip. As a result of her deteriorating impairments (and previous surgery to her left hand) Ms Marsh has reduced ability to grip and can no longer reliably and safely operate her powered chair on her own. Her evidence to the Tribunal is that her right-hand function has also deteriorated and she is likely to require surgery to that hand in the near future as well.
90.Ms Vella’s evidence to the Tribunal is that Ms Marsh will retain possession of the original MWC even if she is provided with a new MWC and power assist.
91.The original chair and power assist combination was funded in full by the NDIS. The total cost was $24,221.00 (plus freight, configuration and delivery).[47]
[47] Page 13 of Exhibit 2
92.The cost of the proposed new chair and power assist combination is $34,772.00.[48]
[48] Page 499 and 500 of Exhibit 1
93.It was Ms Marsh’s evidence to the Tribunal that she is able to lift her current chair in and out of the car herself, albeit by removing the wheels and by lifting the power assist separately. However, the evidence supports a finding that as a result of her impairments there is an increased risk of injury to Ms Marsh’s shoulders in undertaking this activity. This risk will increase with time.
94.Ms Marsh will definitely not be able to lift the proposed MWC and power assist as the two can’t be separated and have a significant combined weight (19.5kg).
95.For that reason a proposal for a vehicle hoist has been made.
96.I am satisfied that the evidence establishes that as a result of her impairments (specifically reduced upper limb strength and fatigue) Ms Marsh does require some form of power assistance to be able to move her MWC independently.
97.I am satisfied the evidence supports a finding that the current power assist is no longer suitable due to Ms Marsh’s deteriorating hand function. I am satisfied that as a result of her impairments (and for her safety) it is reasonable and necessary that Ms Marsh have access to some form of power assistance that includes a means of braking without the need for grip.
98.For the following reasons, however, I am not satisfied that the evidence supports a finding that the proposed MWC and Alber E-fix combination represents value for money, in that the costs of the support are reasonable, relative to both the benefits to be achieved and the cost of alternative support:
a. Ms Vella’s assessment relied on the functional capacity assessments completed by Ms Hewitt in 2021 and 2023. In both of these reports a statement was included that
“[Ms Marsh] uses her manual wheelchair for majority of her day (approximately 8 hours a day).”[49]
[49] Pages 303 and 350 of Exhibit 1
While this may have been the case in 2021 when Ms Marsh was still working and her condition had not significantly deteriorated, it was not the case in 2023[50] and was definitely not the case in 2025.[51] The belief that Ms Marsh’s wheelchair use would be extensive, rather than occasional, is likely to have coloured Ms Vella’s views on the need for a scripted wheelchair.
[50] Pages 137, 299, 300 and 315 of Exhibit 1
[51] Pages 511, 521, 525, 526, 529-531 of Exhibit 1
b. Ms Vella’s assessment also only really focussed on identifying alternative power assist add-ons as the initial intention was to maintain Ms Marsh’s current MWC. It does not appear that any consideration of alternative wheelchairs was undertaken.
c. The RESNA recommendation for a ‘properly configured, fully customisable wheelchair’ relied on by Ms O’Connor in her original AT request, was made with respect to persons who would spend extended periods in their chair. I am satisfied the evidence supports a finding that Ms Marsh no longer spends extended periods in her MWC. Rather her use of this technology is occasional only.[52]
d. Ms Marsh’s evidence to the Tribunal is that she does not go out a great deal because of pain and fatigue. Notwithstanding her difficulties in utilising her current MWC/power assist configuration, the evidence suggests that Ms Marsh is more significantly hampered in her ability to access the community by her fatigue and pain than by the specific MWC combination. She rotates activities through the day with time in bed to recover.[53] While a safer chair and power assist combination would most definitely assist Ms Marsh when she does access the community, the evidence does not support a finding the current combination is the major barrier to that.
e. In her oral evidence Ms Marsh noted that she used to use her MWC regularly when she was working but now only uses it for appointments at the hospital, her dentist or her monthly GP appointments. On days she is unable to drive independently because she is unable to grip the steering wheel, Ms Marsh relies on support workers to assist her with the MWC. When she is out with her husband, he will assist her. Ms Marsh advised Ms Gauvin that she has massive flares in her rheumatoid arthritis every couple of months, noting her hands become stiff, her knuckles become red and hot and her feet throb. These flares can be long, lasting from three weeks to a couple of months. At those times she is unable to grip or walk and it hurts to stand.[54]
f. Ms Gauvin’s evidence to the Tribunal was that Ms Marsh does not require a customised wheelchair as she will not be in the chair for prolonged periods. Based on her general occupational therapy experience Ms Gauvin was of the view that there are more cost effective, off-the-shelf, motorised wheelchair options available that would be suitable for the type of use Ms Marsh requires. These could be transported in an ordinary vehicle, although they are likely to be too heavy for Ms Marsh to lift. Ms Gauvin estimated the likely costs for these chairs as around $5,000.
g. Ms Vella’s evidence to the Tribunal was that the motorised wheelchairs were really only suitable for occasional use such as going to a shopping centre for coffee. Based on Ms Marsh’s description of her current and likely use of this technology, I do not consider they are ruled out as suitable options.
[52] Pages 137, 519- 532 of Exhibit 1
[53] Pages 202, 319, 525-531 of Exhibit 1
[54] Page 512 of Exhibit 1
99.Having regard to Rule 3.1 of the Support Rules, in my view the evidence supports a finding that:
a. there is a comparable support which could achieve the same outcome at a substantially lower cost ($5,000 as opposed to $34,700): Rule 3.1(a);
b. both options have the potential to provide Ms Marsh with a means to access the community safely, with the capacity to brake on inclines: Rule 3.1(b);
c. although not certain, given her deteriorating condition, provision of a power option which allows Ms Marsh to access the community independently may result in a reduced requirement for support workers: Rule 3.1(c);
d. it is Ms Vella’s evidence that there are no options in Ms Marsh’s area for leasing whichever option is chosen: Rule 3.1(d);
e. both options have the potential to increase Ms Marsh’s independence: Rule 3.1(f).
I have no doubt that as a result of her impairments Ms Marsh requires a different means of mobilising herself safely in the community in a wheelchair with a manageable braking system.
For the reasons set out above, however, I am unable to be positively satisfied that the proposed combination of the RGK Tiga and Alber E-Fix power assist does meet the ‘value for money’ criteria in section 34(1)(c). As such I cannot be satisfied this combination should be funded as part of Ms Marsh’s statement of participant supports.
I find the RGK Tiga and Alber E-Fix does not meet the section 34(1)(c) criteria.
Having decided that, I do not need to consider any other criteria in either section 33(5) or 34(1).
The Wheelchair Hoist for Vehicle
I am satisfied that the evidence supports a finding that as a result of her impairments for which she has gained access to the Scheme Ms Marsh is likely to require a wheelchair hoist in order to be able to lift whichever powered chair combination is decided on into her car. Section 34(1)(aa) is met.
I am satisfied that a hoist which allowed Ms Marsh to load and unload her motorised chair independently and safely would assist Ms Marsh to meet her goals and may assist her social and economic participation. Section 34(1)(a) and (b) are met.
106.There is a quote provided by Mobility Modification Services for supply and installation of such a hoist for Ms Marsh’s car. This quote is in the amount of $16,712.50.[55]
[55] Page 462 of Exhibit 1
107.This quote was provided in relation to Ms Marsh’s car and was chosen, in part, because Ms Marsh wanted her expensive wheelchair stored within her vehicle. I do not know if it was specifically chosen because of the type of chair to be lifted.[56]
[56] Oral evidence of Ms Vella and Ms Marsh
108.Given I have found the recommended wheelchair combination does not meet the section 34 requirements as a reasonable and necessary support to be funded, I find I cannot be certain that the recommended wheelchair hoist will be the suitable option for whichever alternative motorised wheelchair option is decided on. I therefore cannot be satisfied that the criteria in sections 34(1)(c) and (d) are met.
109.As I have reached the same conclusion as the decision under review, I will affirm the decision.
Decision
The decision under review is affirmed pursuant to section 105(a) of the Administrative Review Tribunal Act 2024
Applicant’s Counsel: Mr Christopher Bilboe, Intrepidus Law
Respondent’s Counsel: Mr Arron Hartnett
Respondent’s Solicitors: Mills Oakley
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