Mills and National Disability Insurance Agency (NDIS)

Case [2025] ARTA 1410

Mills and National Disability Insurance Agency (NDIS) [2025] ARTA 1410 (18 August 2025)

Applicant:Lindy Mills

Respondent:  Chief Executive Officer, National Disability Insurance Agency

Tribunal Number:                2024/3309

Tribunal:General Member A Colvin

Place:Brisbane

Date:18 August 2025

Decision:  The Tribunal affirms the decision under review.

.............SGD..................

General Member A Colvin

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – variation under section 47A National Disability Insurance Scheme Act 2013 (Cth) – consideration of section 34 – reasonable and necessary supports – electric bike, accessories and maintenance – decision affirmed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth)

Cases

Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Mills and National Disability Insurance Agency [2024] AATA 2914
FSWN and National Disability Insurance Agency [2025] ARTA 114
QGRY and National Disability Insurance Agency [2025] ARTA 598

VPYC and The Ceo, National Disability Insurance Agency [2025] ARTA 3
Hyde and National Disability Agency (Hyde) [2025] ARTA 365

Secondary Materials

NDIS – Operational Guidelines

Statement of Reasons

BACKGROUND

  1. Ms Mills is an adult participant in the National Disability Insurance Scheme (NDIS), having been granted access in 2019. She has impairments arising from psoriatic arthritis and autism spectrum disorder level 2. As an NDIS participant, she has a plan that includes a statement of participant supports (SOPS). This review is about whether funding for an electric bike, together with accessories and ongoing maintenance, should be included in those SOPS.

  2. On 2 November 2023, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (Agency) approved a SOPS in a plan for Ms Mills. That plan did not include funding for an electric bike.

  3. On 4 February 2024 Ms Mills wrote to the Agency seeking funding to purchase an electric bike, stating that she understood this could be done without a complete plan review. On 22 February 2024, the Agency refused Ms Mills’ request. That decision was affirmed on internal review on 20 May 2024.

  4. On 17 April 2024, after being informed that her request for funding for an electric bike had been refused and before receiving the outcome of her application for internal review, Ms Mills purchased an electric bike and accessories. On 23 May 2024 she purchased additional items for her electric bike.

  5. Ms Mills applied to the Administrative Appeals Tribunal (AAT) on 23 May 2024. From 14 October 2024, the…

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AGLC
Mills and National Disability Insurance Agency (NDIS) [2025] ARTA 1410
Case
[2025] ARTA 1410
Decision Date

CaseChat Overview and Summary

The case between Mills and the National Disability Insurance Agency (NDIS) concerned whether certain items and modifications related to an electric bike should be considered as supports under the NDIS. The dispute was heard by the Administrative Appeals Tribunal (AAT). The primary legal issues addressed by the AAT involved whether the electric bike, accessories, and maintenance costs were reasonable and necessary supports under the National Disability Insurance Scheme Act 2013 (Cth). The decision hinged on whether these items met the criteria for NDIS supports outlined in the Act and its associated rules.

The AAT examined whether the Metro-E City bike and its accessories fell within the scope of NDIS supports by applying the two-step approach established in FSWN and National Disability Insurance Agency. The Tribunal determined that the Metro-E City bike fell within 'day-to-day living costs for travel and transport' as a personal mobility device under item 6(f) of Schedule 2 of the NDIS Supports Transitional Rules. The Tribunal found that despite Ms Mills' particular use of the bike, it was still an electric bike and did not meet the exception criteria. Furthermore, accessories such as the helmet, gloves, lock, basket, bags, replacement grips, and seat post were deemed standard recreational equipment and thus excluded from NDIS support under item 4(g) of Schedule 2. Consequently, the Tribunal concluded that the electric bike, its accessories, and maintenance were not reasonable and necessary supports, and the NDIS plan could not be varied to include these items.

In its decision, the Tribunal affirmed the NDIS Agency's decision not to fund the electric bike, accessories, and maintenance. The Tribunal found that the requirements for these items to be considered NDIS supports were not met, and therefore, the NDIS plan should remain unchanged.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Ms Mills also emphasised statements on the Agency’s website regarding e-bikes which, at the time of the hearing, read:Are disability specific bicycles, including electric bicycles, considered an NDIS support:Yes. Bicycles or tricycles, with or without an electric motor, that include disability specific features, or have been designed to meet the disability specific needs of a participant, are an NDIS support. This is because they are considered an assistive product for recreation and can be funded if they also meet the ‘reasonable and necessary’ criteria applied to all NDIS supports.The costs associated with adapting or modifying a standard bicycle or tricycle to meet a participant’s disability specific needs may also be an NDIS support. However, in these circumstances the participant, or their family, would need to self-fund the cost of the bicycle or tricycle that is being adapted or modified.Standard, non-modified, bicycles or tricycles including electric bicycles are not NDIS supports.[16][16] Frequently asked questions about legislation | NDIS >In determining whether a support is an NDIS support, I accept the Agency’s submission that it is necessary first to consider whether a support is not an NDIS support by operation of schedule 2 of the NDIS Supports Transitional Rules, and only if the support does not fall within Schedule 2 is it necessary to consider whether it falls within schedule 1. That is the two-step approach set out in FSWN and National Disability Insurance Agency (FSWN).[17] [17] [2025] ARTA 114In FSWN the Tribunal set out the steps in determining whether a support is an NDIS support. The first step is to determine if the requested support is of a character that falls within the scope of a category of support specified in column 1 of the Table to Schedule 2 of the NDIS Supports Transitional Rules by reference to the description of supports that fall within the scope of that category contained in column 2 of the Table. This is broadly consistent with the approach advanced by the Agency, although I accept the Agency’s submission that the effect of rule 5(2) of the NDIS Supports Transitional Rules is that the operative provision is column 2 of schedule 2. The Metro-E City bike is clearly of a character that it falls within day-to-day living costs for travel and transport as a personal mobility device that is an electric bike, and therefore falls within item 6(f) of schedule 2.I do not accept Ms Mills’ submission that, given her particular circumstances and use of the Metro-E City bike, it falls outside item 6(f) of schedule 2. Ms Mills contended that she was unable to meet her day-to-day transport needs with the Metro-E City bike, that she used it as personal mobility equipment (similar to, for example, a walker), that any use of it for transport was minimal and incidental, and that it was therefore not a ‘day-to-day living cost – travel and transport’. The focus in item 6(f) of schedule 2 is on the character of the support. Column 1 of item 6(f) operates to express a category of items regarded as items used regularly by people with disability and without disability for day-to-day living. That is consistent with comments in the Explanatory Statement that there are eight categories in schedule 2 of day-to-day living costs, and that these have been intentionally excluded as NDIS supports because they are regarded as items that every person needs to pay for or purchase, regardless of whether they have a disability or not.[18] [18] Explanatory Statement to the NDIS Supports Rules at 32-33Although Ms Mills may utilise the Metro-E City bike in some ways that are particular to her (including using it for support while walking) that does not alter the character of the Metro-E City bike and make it something other than an electric bike. In either case, Ms Mills clearly was regularly using the Metro-E City bike in a range of ways including for recreation but also for day-to-day transport. I also do not consider that the features of the Metro-E City bike cause it to fall outside item 6(f) in schedule 2. That item refers to personal mobility devices and specifically includes electric bikes. It contains no express words of qualification. It does not preface the term ‘electric bike’ with the word ‘standard’, unlike item 1(g) which deals with ‘standard home security’ or item 4(g) which deals with ‘standard recreational equipment’. The cases referred to by Ms Mills, of QGRY, VPYC and Hyde, to the extent that Ms Mills referred to them, all deal with provisions in schedule 2 that include the term ‘standard’. In either case, there was minimal evidence before the Tribunal about electric bikes generally, and how the Metro-E City bike differed from other electric bikes, apart from Ms Mills’ own assessment. Nothing in the information before the Tribunal indicated that the features of the Metro-E City bike were so unusual or different that it fell outside item 6(f) in schedule 2. In fact, it appeared to be an electric bike of a kind used routinely by commuters with and without disability. It had some features suitable to Ms Mills that were also common to electric bikes and/or particularly attractive to commuters. Finally, regarding the commentary on the Agency’s website, neither party contended that the Tribunal was bound by that commentary. The statements are not operational guidelines and the Tribunal, in either case, is not bound to follow operational guidelines issued by the Agency. As to the helmet, gloves, lock, basket and bags, and future maintenance, having regard to Ms Mills’ description of those items, I consider these items are not an NDIS support for the purposes of paragraph 34(1)(f) of the NDIS Act. The future maintenance costs do not fall within schedule 1. As to the other items, there is minimal evidence regarding each item but there is nothing that would indicate these items are anything other than items routinely used by people who ride bicycles. They are therefore specifically excluded by item 4(g) of schedule 2 because they are standard recreational equipment.As to the replacement grips, Ms Mills said that those grips enabled her to place her hands in different positions to control her bike without pain, injury or intolerable sensory experience. However, she also described them as ergonomic grips used by long distance riders to provide alternative grip positions and promote comfort in streamline positions. The replacement grips are therefore also specifically excluded by item 4(g) of schedule 2 on the basis that they are standard recreational equipment. As to the replacement seat post, Ms Mills described needing this because she required a longer distance than standard between the lowered and raised height of the seat when operating the dropper seat to ensure she could place both feet securely on the ground. In his letter dated 3 June 2024, Mr Catoggio stated that for Ms Mills, a dropper seat post wasessential for safe mounting and dismounting of the bike: ‘This allows for the saddle to be lowered so both Ms Mills' feet can touch the ground when mounting/dismounting the bike, however also allows for the saddle to be raised to the correct height so Ms Mills can pedal without placing excessive stress on the knees’. Mr Catoggio does not specifically address why the dropper seat post already fitted to the Metro-E City bike was not adequate. 60.The replacement seat post likely falls within item 4(g) of schedule 2 as standard recreational equipment. If not, I am not satisfied that it falls within schedule 1. In particular, I am not satisfied on the available information that it is ‘personal recreation equipment modification’, within the category of assistive equipment for recreation, in item 7 of schedule 1. There is evidence regarding the benefit for Ms Mills in having a dropper seat but minimal evidence specifically addressing why the dropper seat on the Metro-E City bike required modification. For similar reasons, I am also not satisfied that it is a support necessary to address needs of Ms Mills’ arising from her impairments as required by paragraph 34(1)(aa) of the NDIS Act. For the reasons set out above, I find that the Metro-E City bike, the accessories and maintenance are not NDIS supports and that the requirement in paragraph 34(1)(f) of the NDIS Act is not met for each of these supports. This means that none of the supports sought by Ms Mills are reasonable and necessary supports pursuant to subsection 34(1) of the NDIS Act. It is therefore not necessary to consider the remaining requirements in subsection 34(1) of the NDIS Act. Since the requirements of subsection 34(1) are not met, Ms Mills’ plan cannot be varied under section 47A of the NDIS Act. I therefore make no change to the decision under review under paragraph 47A(4)(b) of the NDIS Act not to vary Ms Mills’ plan. DECISIONThe Tribunal affirms the decision under review. I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for the decision herein of General Member A Colvin. .....................sgd.............................Associate Dates of hearing: 22 July 2025 Solicitor for the Applicant: Self-represented Solicitor for the Respondent: Mr Richardson, Sparke Helmore Counsel for the Respondent: Mr G Johnson

Ratio Decidendi

Legal Principle Established

The Miscellaneous Provisions Rules are also relevant. Rule 7 imposes an additional requirement, that the support is most appropriately funded through the NDIS and not through other systems or bodies as part of universal service obligations or in accordance with reasonable adjustments required under laws dealing with discrimination. CONSIDERATIONThe Evidence The Tribunal heard oral evidence from Ms Mills and her occupational therapist, Ms Gowland, and had the benefit of written reports from Ms Gowland. Based on that evidence, I find that Ms Mills’ psoriatic arthritis has resulted in physical impairments and that at the time of the hearing these included exertion intolerance, reduced stamina and endurance, left foot drop, reduced proprioceptive awareness, and a reduction in fine motor skills particularly grip strength, dexterity and function.[9] [9] Ms Gowland’s Functional Capacity Assessment dated 17 April 2025 HB 305 to 308 Ms Mills’ goals, set out in her plan dated 2 November 2022, included receiving support to remain in her own home, increasing her capacity for independent living, independently accessing community activities, improving her health, fitness and general sense of wellbeing, and resuming driving a car.[10][10] HB 206 to 208The Metro-E City bike Ms Gowland recommended, in early 2024, that Ms Mills be provided with an electric bike with the following features:[11][11] Ms Gowland’s letter dated 3 February 2024 HB 324-5.·internal cabling and minimal obstructions and catch points;·handlebar operated dropper seat·well distributed weight·flat or commuter style pedals·a kickstand that required minimal force to operate·flat or slightly raised handlebars on a higher adjustable bar·ergonomic supportive wing style handle grips·hydraulic brakes with ergonomic adjustable position levers·a comfortable upright riding position·hydraulic suspension·a gel cushion saddle·pedal assist function·walk assist function ·a lightweight frame. On 17 April 2024 Ms Mills purchased a Metro-E City electric bike (Metro-E City bike) for $2,696.79. She also purchased accessories bringing the total cost to $3,614. On 23 May 2024 she purchased further accessories for $450.[12] Ms Mills sought funding in the SOPS in her NDIS plan for the combined cost of $4,064, to cover those purchases. Ms Mills also sought funding for future maintenance and accessories. She estimated these to cost approximately $600/year. [12] T1C and A4 Ms Mills explained in her oral evidence that she purchased the Metro-E City bike and accessories directly from a bicycle shop. She chose the Metro-E City bike because that model was recommended to her by the bicycle shop. She also had input from a physiotherapist, Mr Catoggio. In a letter dated 3 June 2024, he sets out the features that he considered Ms Mills required in an electric bike. These largely mirrored those identified by Ms Gowland. Ms Mills’ oral evidence was that the Metro-E City bike incorporated features important to her including:·a handlebar-activated dropper seat, important for dismounting safely (noting that she had sustained an injury dismounting from a bicycle that did not have this feature);·an ultra-low step-through frame, important for her in dismounting and when stopping unexpectedly;·internal wiring for cables, important for her to reduce catch points;·hydraulic brakes;·walk assist function, important for her in reducing the effort required to move the bike forward while walking;·pedal assist function, important for her in reducing the effort required when peddling;·low weight balance, important for her to aid stability;·a suspension fork, important for her to reduce vibrations which she said she found problematic for her joints and sensory issues;·a small frame; and ·a kickstand.