Mills and National Disability Insurance Agency (NDIS) - [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

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.
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.
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.
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.
Ms Mills applied to the Administrative Appeals Tribunal (AAT) on 23 May 2024. From 14 October 2024, the AAT became the Administrative Review Tribunal (Tribunal). Applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal, and the Tribunal has authority to continue and finalise any aspect of the review not already completed by the AAT.[1]
[1] Transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
The hearing took place by videoconference on 22 July 2025. Documents available to the Tribunal included a hearing bundle (HB), lodged by the Agency (Exhibit 1) and a report dated 3 June 2024 by Mr Catoggio, physiotherapist, PhysioLife (Exhibit 2). The Applicant and the Agency each provided a Statement of Facts Issues and Contentions (SFIC).
THE ISSUES
This matter came before a differently constituted Tribunal on 10 July 2024 to determine whether the Tribunal had jurisdiction to hear Ms Mills’ application. In a decision dated 15 August 2024 Member Bubutievski determined that Ms Mills had made a request for a minor variation to her plan to increase the funded supports in her plan and the Agency had requested information about that support. The Agency’s subsequent decision dated 22 February 2024 was a decision under paragraph 47A(4)(b) of the National Disability Insurance Scheme Act (NDIS Act) not to vary Ms Mills’ plan. That decision was reviewed internally on 20 May 2024 and affirmed under subsection 100(6) of the NDIS Act. The Tribunal concluded that it therefore had jurisdiction to consider whether Ms Mills’ plan should be varied to include funding for an electric bike, noting that such a variation would be consistent with variation under paragraph 47A(1A)(d)(ii) of the NDIS Act (dealing with variations that relate to information requested by the Agency) and variation under paragraph 47A(1A)(d)(iv) of the NDIS Act (dealing with minor variations).[2]
[2] Mills and National Disability Insurance Agency [2024] AATA 2914
The issue for determination in these proceedings therefore is whether to vary Ms Mills’ plan under section 47A of the NDIS Act to include funding for an electric bike, together with accessories and maintenance.
THE LAW
The legislative framework
The statutory provisions relevant to this application for review are found within the NDIS law, including:[3]
·the NDIS Act;
·the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Supports Rules);
·the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth) (Miscellaneous Provisions Rules); and
·the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth) (NDIS Supports Transitional Rules).
[3] The statement of the law that follows largely adopts the summary in VKKG and National Disability Insurance [2025] ARTA 789
The Agency also issues Operational Guidelines. The Tribunal is not bound to follow Operational Guidelines issued by the Agency but, in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task.[4] Operational Guidelines considered in the present matter are published by the Agency on its website,[5] and include guidelines on Reasonable and Necessary Supports.
[4] Re Drake v Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634
[5] Webpage: ourguidelines.ndis.gov.au
Approving SOPS in participants’ plans
Section 3 of the NDIS Act sets out the objects of the NDIS Act. Sections 4 and 5 of the NDIS Act set out general principles guiding actions under the NDIS Act, and sections 17A and 31 of the NDIS Act set out principles that relate to participation in the NDIS and plans.
If a person becomes a participant, under section 32 of the NDIS Act the CEO must facilitate the preparation of a plan for the participant. Ms Mills’ plan is an ‘old framework plan’. For those plans, section 33 of the NDIS Act sets out the matters that must be included in a participant’s plan. A plan must include a statement of the participant’s goals and aspirations. It must also include a SOPS, prepared with the participant and approved by the CEO. The SOPS in a participant’s plan must specify, among other things, ‘the reasonable and necessary supports (if any) that will be funded’ under the NDIS.[6]
[6] Paragraph 33(2)(b) of the NDIS Act
When approving a SOPS in a participant’s plan, the CEO must comply with the mandatory requirements contained in subsection 33(5) of the NDIS Act. One of the requirements in subsection 33(5) is that the CEO ‘be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded’: paragraph 33(5)(c) of the NDIS Act. A similar provision applies when varying a plan under section 47A of the NDIS Act.[7]
[7] Subsection 47A(3) of the NDIS Act
Subsection 34(1) of the NDIS Act deals with ‘reasonable and necessary supports’:
34 Reasonable and necessary supports
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(aa)the support is necessary to address needs of the participant arising from an impairment in relation to which the 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 a 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 disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
The matters set out above in subsection 34(1) of the NDIS Act are more than mandatory considerations. They are more in the nature of criteria that the decision‑maker must be positively satisfied about on the material.[8]
[8] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at 201
Paragraph 34(1)(f) of the NDIS Act requires the CEO to be satisfied that the support is ‘a NDIS support’ for the participant. Section 10 of the NDIS Act defines ‘NDIS support’. The effect of that section, in essence, is that a support is an NDIS support if it is declared by rules to be a NDIS support, provided that rules have not declared that the support is not an NDIS support, and provided that the support is not sexual services, alcohol, or illicit drugs. The NDIS Supports Transitional Rules declare certain items to be NDIS supports and certain items to not be NDIS supports.
When approving SOPS in a participant’s plan the Support Rules are relevant. Among other provisions in those rules, rule 5.1 provides that a support will not be provided or funded under the NDIS if it is ‘not related to the participant’s disability’ or relates to ‘day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs’.
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.
CONSIDERATION
The 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 208
The 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.
Ms Mills said that she had looked at similar models of electric bike but that the Metro-E City bike was the only one that incorporated all these features. Ms Mills acknowledged in the hearing that some of these features were useful to people without disability. She said the dropper seat was easier for commuters. She also said that most e-bikes featured pedal assist. She regarded walk assist as a feature that was much less common.
The accessories
The accessories that Ms Mills purchased and sought to have funded in the SOPS in her plan are as follows:
·a bicycle lock (Bordo U-Grip folding lock at $119.98)
·three pairs of gloves (Bravo Gel Gloves at $52.12 and $92.40)
·a helmet (AGLIS MPS Helmet at $152.81)
·a charger (Bosch 2A charger at $139.49)
·a front basket and mount (mounting set at $44.94 and Ultimate Six front basket at $112.83)
·pannier bags (Back-Roller Plus pannier bags for $227.66)
·a seat post (Duncan 2.0 Seatpost at $357.60)
·set of grips (of GP3 Grip Combo Small at $67.38).
The accessories were all purchased on 17 April 2024, apart from the seat post and two of the pairs of Bravo Gel Gloves, which were purchased on 23 May 2024. Ms Mills lost the set of gloves purchased on 17 April 2024 so she purchased two sets of gloves on 23 May 2024.
Ms Mills’ evidence was that the pannier bags, basket mount, and basket were fitted to the Metro-E City bike. The grips replaced the existing grips on the Metro-E City bike and the seat post was used to replace the existing seat post with a post of a different length. The evidence was also that a particular seat and handlebars were fitted although the invoices do not include an amount specifically for a replacement seat or handlebars. These items were all fitted at no cost.
Ms Mills’ evidence, which I accept, is that she used her Metro-E City bike to go bike riding with family, and to travel to shops. She also often used her Metro-E City bike by walking beside it, utilising it for support while she walked. She used it in this way when inside shops, and while going for walks with others.
Whether the Tribunal must apply the NDIS Act as amended on 3 October 2024
The NDIS Act was amended by the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth) (the Amending Act). Those amendments came into effect on 3 October 2024, that is after Ms Mills applied to the AAT.
Ms Mills contended that the Tribunal should apply section 34 of the NDIS Act as it was in force prior to the amendments contained in the Amending Act. She contended that if the Tribunal varied her plan, that variation would be taken to occur on 22 February 2024, and would therefore predate 3 October 2024. She contended that the Amending Act should be interpreted as applying only to variations regarding future supports. In her submission, to do otherwise would be to adopt an interpretation that allowed retrospective operation of the Amending Act, and that enabled the Agency to avoid funding reasonable and necessary supports through its own errors and delays.
The Agency contended that since the Tribunal is now considering whether SOPS in Ms Mills’ plan should be varied, her application must be determined in accordance with the NDIS Act and relevant NDIS rules as they exist after the commencement of the Amending Act on 3 October 2024.
If the Tribunal varies Ms Mills’ plan under section 47A of the NDIS Act, the effect of subsection 47A(4) of the NDIS Act is that the Tribunal’s decision would be a decision to vary the plan under subsection 47A(1)(i). That provision, in turn, requires that the variation must be one of the permitted kinds of variations in subsection 47A(1A), dealing with old framework plans. The permitted variations that are relevant in this matter are contained in paragraphs 47A(1A)(d)(ii) and 47A(1A)(d)(iv). Both of those provisions permit variations to an old framework plan that are ‘a variation of the statement of participant supports’ though in specific and limited circumstances.
Subsection 47A(3) of the NDIS Act imposes an obligation on the decision-maker in varying an old framework plan ‘in relation to the statement of participant supports’ to, among other things, ‘be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded.

Items 129 and 135 in part 3, schedule 1 of the Amending Act specify when certain amendments apply:
129  Old framework plans—content and approval of statement of participant supports
(1) Subject to subitem (3), sections 33, 34 and 35 of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, apply in relation to a statement of participant supports included in an old framework plan for a participant if the statement is approved or varied on or after that commencement.
(2)   Subitem (1) applies:
(a) whether the participant becomes a participant; and
(b) in the case of a variation—whether the plan comes into effect;
before, on or after that commencement.
(3) Subsection 33(2A) of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, applies in relation to a statement of participant supports included in an old framework plan for a participant if:
(a) the statement is approved on or after the commencement (the determination commencement) of the first determination made under subsection 33(2E) of that Act (as inserted by this Schedule); and
(b) the decision to approve the statement is not covered by subitem (4).
(4)   This subitem covers the following decisions made on or after the determination commencement:
(a)a decision made by a reviewer under subsection 100(6) of the National Disability Insurance Scheme Act 2013 on review of a decision made by a decision‑maker before the determination commencement;
(b) a decision, made by the Administrative Appeals Tribunal, on review of a decision made by a reviewer under that subsection:
(i) before the determination commencement; or
(ii) on or after the determination commencement, if the decision reviewed by the reviewer was made by a decision‑maker before the determination commencement.
(5)   Subitem (3) applies whether the participant becomes a participant before, on or after the determination commencement.
135  Varying old framework plans
(1) Paragraphs 47(1A)(a) and (ag), and subsection 47A(3), of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, apply in relation to the variation of an old framework plan on or after commencement, whether the plan comes into effect before, on or after that commencement.
(2) Paragraphs 47A(1A)(ab) to (af), and subsection 47A(1B), of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, apply in relation to the variation of an old framework plan if subsection 33(2A) of that Act applied in relation to the approval of the plan (see subitems 129(3) to (5)).
The date that a plan is varied, or the SOPS in the plan is varied, may be different from the date on which, or period during which, funding for an individual support in the SOPS operates. The relevant date in item 129(1) is the date the SOPS is varied. The relevant date in item 135(1) is the date on which the plan is varied.
If, because of the Tribunal’s decision in these proceedings, Ms Mills’ plan is varied by varying the SOPS in her plan, that variation to the plan and SOPS will occur after 3 October 2024. The effect of items 129 and 135 is that the Tribunal can only vary the plan and SOPS if sections 34 and 47A(3) of the NDIS Act, as amended by the Amending Act, are met. Although Ms Mills feels this is an unfair outcome, it is the clear effect of item 129 of Schedule 2 of the Amending Act.
Metro-E City bike, accessories and maintenance
The Agency’s submissions
The Agency conceded that the requirements in subsection 34(1) of the NDIS Act were met for funding to be included in the SOPS in Ms Mills’ plan for the Metro-E City bike, apart from the requirement in paragraph 34(1)(f). The Agency contended that the Metro-E City bike was not an ‘NDIS support’ because it fell within item 6(f) of clause 1, schedule 2 of the NDIS Supports Rules, which provides that the following support is not an ‘NDIS support’:

6 Day-to-day living costs –

travel and transport

The following:

…

(f) Personal mobility devices, including e-scooters, electric bikes and skateboards;…

The Agency contended that, in applying the NDIS Supports Transitional Rules, a decision-maker must first consider whether an item falls within schedule 2, and only if it does not fall within schedule 2, should the decision-maker consider schedule 1.
The Agency also contended that, while column 1 of schedule 2 groups items into categories, it is column 2 that is the operative column. In this regard the Agency noted that subsection 5(2) of the NDIS Supports Transitional Rules provides that for ‘the purposes of subsection 10(4) of the NDIS Act, a support covered by column 2 of an item in the table of clause 1 of Schedule 2 …is not an NDIS support for the participant’.
The Agency did not contend that the category description in column 1 of item 6(f) should be ignored. In its submission the category description should be seen as expressing that the supports in column 2 were regarded as things used regularly by people with disability and without disability for day-to-day living. It contended that Ms Mills’ Metro-E City bike was an off-the-shelf item that had been purchased with features that made it more usable for her but it was still an electric bike that a person with or without disability would use. The Agency also noted that, based on Ms Mills’ own evidence, she used her Metro-E City bike in part for some transport purposes such as accessing shops.
Regarding the accessories purchased by Ms Mills, the Agency contended that these were not reasonable and necessary supports, noting paragraph 5.1(b) of the Supports Rules, which provides that a support would not be funded if it was not related to participant’s disability, and paragraph 5.1(d), which states that a support would not be funded if it related to day-to-day living costs. The Agency contended that the accessories sought by Ms Mills were items that bike riders needed and chose to have as opposed to items related to Ms Mills’ disability.
Ms Mills’ submissions
Ms Mills contended that the Metro-E City bike was an NDIS support because it fell within schedule 1 of the NDIS Supports Transitional Rules, either as assistive equipment for recreation or as personal mobility equipment.
Ms Mills also contended that the Metro-E City bike did not fall with item 6(f) of schedule 2. She contended that in applying schedule 2, for a support to fall within an item in column 2, that support must as, a preliminary consideration, be found to come within the category in column 1. For item 6(f) of schedule 2, that category is ‘day-to-day living costs - travel and transport.’
Ms Mills further contended that the question of whether a support falls within the category applying to an item in schedule 2 must be determined having regard to the context, circumstances and use of that particular support by the particular participant. In her SFIC Ms Mills contended that the Metro-E City bike could not be categorised as coming within the category ‘day-to-day living costs - travel and transport’ because she was not capable of meeting her day-to-day transport needs with an electric bike. She also contended that, to the extent that she used her Metro-E City bike for transport, this was minimal and incidental to other uses.
In her submissions at the hearing, Ms Mills also contended that the Metro-E City bike was not a ‘day-to-day living cost’ because it was much more expensive, and had many more features, than alternatives. Ms Mills referred to several cases that she contended supported that approach including QGRY and National Disability Insurance Agency (QRGY),[13] VPYC and The Ceo, National Disability Insurance Agency (VPYC)[14] and Hyde and National Disability Agency (Hyde).[15]
[13] [2025] ARTA 598
[14] [2025] ARTA 3
[15] [2025] ARTA 365
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 114
In 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 32-33
Although 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 was
essential 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.
DECISION
The 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