Mizzi and National Disability Insurance Agency (NDIS)
[2025] ARTA 2155
•10 October 2025
Mizzi and National Disability Insurance Agency (NDIS) [2025] ARTA 2155 (10 October 2025)
Applicant/s: Daniel Mizzi
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/6252
Tribunal:Senior Member S Webb
Place:Canberra
Date:10 October 2025
Decision:
The Tribunal sets aside the decision under review and in substitution decides to approve a statement of participant supports for Mr Mizzi under s 33(2) of the National Disability Insurance Scheme Act 2013 comprising:
(a)for the purposes of s 33(2)(a), replication of the general supports (if any) specified in the statement of participant supports approved on 23 March 2023;
(b)for the purposes of s 33(2)(b), the following reasonable and necessary supports which will be funded under the National Disability Insurance Scheme:
(i)core supports, including supports with activities of daily living and self-care: $32,945.12;
(ii)capacity building supports, including occupational therapy, physiotherapy and support coordination supports: $11,170.65;
(iii)capital supports, including rental of assistive technology: $1,025.00;
(iv)relocation supports, specifically vendor marketing support ($1,900), real estate support ($13,110) and PEXA support ($132.66).
(c)for the purposes of s 33(2)(c), the plan is to be re-assessed within the period of 12 months for the day this decision has effect; and
(d)for the purposes of s 33(2)(d), the management of the funding for supports as approved on 23 March 2023 will continue; and
(e)for the purposes of s 33(2)(e), the management of other aspects of Mr Mizzi’s plan as specified in the statement of participant supports approved on 23 March 2023 will be replicated.
Statement made on 10 October 2025 at 11:29am
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – approved statement of participant supports – relocation due to disability support needs – supports relating to sale and acquisition of residential premises – criteria for approval of reasonable and necessary supports – meaning of ‘NDIS supports’ – operation of Getting the NDIS Back on Track Act amendments and construction of transitional rules – compensation for supports under WorkSafe Victoria statutory compensation scheme – inclusion of statutory insurance or compensation scheme as alternative to NDIS – meaning of ‘general systems of service delivery and support services’ for the purposes of transitional prescribed rules – case by case approach to determining most appropriate funding of supports – threshold of satisfaction – supports are most appropriately funded or provided under the NDIS – decision set aside and substituted
Legislation
Accident Compensation Act 1985 (Vic), ss 3, 82
Administrative Appeals Tribunal Act 1975
Administrative Review Tribunal Act 2024
National Disability Insurance Scheme Act 2013, ss 4, 9, 10, 11, 17A, 31, 33, 34, 35, 37, 104, 105, 111
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Act 2024, Schedule 1, Part 3
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024
National Disability Insurance Scheme (Supports for Participants) Rules 2013
National Disability Insurance Scheme (Supports for Participants – Accounting for Compensation) Rules 2013
Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases
Beezley v Repatriation Commission [2015] FCAFC 165
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2
FSWN and National Disability Insurance Agency [2025] ARTA 114
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v Deayton [2025] FCA 562
National Disability Insurance Agency v Foster [2023 FCAFC 11
National Disability Insurance Agency v Warwick [2025] FCAFC 100
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35
Santagada and National Disability Insurance Agency [2025] ARTA 676
Warwick and National Disability Insurance Agency [2024] FCA 616
XNTW and National Disability Insurance Agency [2023] AATA 759
Young and National Disability Insurance Agency [2014] AATA 401
Secondary Materials
Bilateral Agreement between the Commonwealth of Australia and the State of Victoria on the National Disability Insurance Scheme, 1 July 2018
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024 Explanatory Statement
National Disability Insurance Agency Mainstream and Community Services Operational Guidelines, 7 April 2025
Principles to determine the responsibilities of the NDIS and other service systems, 19 April 2013
Disability Care and Support, Productivity Commission report No 54, 31 July 2011
Statement of Reasons
Daniel Mizzi is a participant in the National Disability Insurance Scheme (NDIS). He applied for review of a decision of a delegate of the CEO of the National Disability Insurance Agency (NDIA) to confirm approval of a statement of participant supports (SOPS) which does not include supports he is seeking.
The application was lodged under the Administrative Appeals Tribunal Act 1975 (AAT Act). The AAT Act was repealed and the Administrative Review Tribunal Act 2024 (ART Act) came into effect on 14 October 2024, establishing the Administrative Review Tribunal (Tribunal). Under the transitional provisions set out in Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024, the Tribunal has jurisdiction and power to conduct this review.
Facts
The key facts are not in dispute. These are set out in the Joint Statement of Agreed Facts (Agreed Facts) signed by each party on 8 May 2025.
Having reviewed the documents in Exhibit 1, I am satisfied the following Agreed Facts are, by inference at least, consistent with relevant materials in evidence and can be accepted:
1 The Participant is a 69-year-old man … who suffered a workplace injury in 1986 resulted in a left through-knee amputation with associated Phantom Limb Pain and Chronic Back Pain.
2 The Participant gained access to the [NDIS] on 13 March 2018 on the basis of impairments related to his amputation.
3 In 2023, the Applicant suffered a failure of a previously successful liver transplant failing, leading to a decrease in mobility and increase in pain.
4 The 1986 injury suffered by the Participant is compensable under the Accident Compensation Act 1985 (Vic).
5 WorkSafe Victoria[1] has provided compensation to the Participant. Relevant to the application before the Tribunal, this has included:
[1] ‘WorkSafe Victoria’ is a trading name of the Victorian Work Cover Authority.
(a)$1,050.00 towards a specialised mattress;
(b)$2,498.60 annually for home cleaning;
(c)$7,980.00 annually for garden maintenance; and
(d)The partial cost of physiotherapy consultations.
The Participant's NDIS Plan
6 On 24 March 2023, a delegate of the CEO approved an NDIS plan for the participant for the period 24 March 2023 – 23 March 2024 (the NDIS Plan). The NDIS Plan included $45,140.77 in supports comprising:
(a) $32,945.12 in core supports;
(b) $11,170.65 in capacity building supports; and
(c) $1,025.00 in capital supports.
7 The Participant's goals under the NDIS plan are to:
(a) obtain transitional funding in order to move to a new home that better suits his disability needs;
(b) access a house of his choosing with input from his Occupational Therapist;
(c) find a safe environment where he is not in danger of falling down multiple stairs or slipping when entering or exiting the house;
(d) live in a safe place where he can enjoy leisurely activities such as gardening or going for walks within the home without stress, and establish a sense of normality which will ultimately allow him to improve his psychological health;
(e) establish a greater sense of happiness with his life; and
(f) receive help from the NDIS to help him meet these goals in helping him to exercise his choice of control.
…
The Participant's home
9 The Participant previously owned a home at … Warburton ([Previous] Home).
10 The Participant's occupational therapist, Kelly Dang, Guided Growth (Dang) identified that the [Previous] Home was not safe or accessible. On 23 March 2021, Dang sought Complex Home Modifications.
11 In May 2022, the Respondent advised that the Complex Home Modifications were not deemed reasonable and necessary for the NDIS to fund, including because they did not represent value for money. In December 2022, the Respondent confirmed this view and advised, "the option of relocating to a house that is better suited towards Daniel's needs based on his disability is being considered".
12 In or around March 2023, the Applicant sold the [Previous] Home and purchased a new, more accessible home.
Mr Mizzi cavils with the NDIA internal review decision on 4 August 2023[2] which confirmed the original decision to approve a SOPS on 23 March 2023 and found (among other things) that relocation supports he was seeking, amounting to $33,360, were not reasonable and necessary supports which could be funded under the NDIS. I note the 23 March 2023 SOPS approval decision has not been given to the Tribunal. It is given effect in the plan set out in T30 which was slated for review within 12 months.
[2] T2.
Supports sought in this review
Mr Mizzi is seeking approval and funding of the following supports under the NDIS:
(a)relocation supports, comprising:
(i)Professionals Yarra Valley - Vendor Marketing Contribution (previous home): $1,900;
(ii)Professionals Yarra Valley - Real Estate commission (previous home): $13,110;
(iii)Rapid Building Inspections - Building and pest inspection (new residence): $730;
(iv)Registration fee on Transfer (new residence): $2,040.90;
(v)PEXA Fees (new residence): $132.66;
(vi)PEXA Fees (previous home): $132.66; and
(vii)Funds to discharge mortgage (previous home): $350; and
(b)the continuation of supports included in the SOPS approved on 23 March 2023 which was instrumental in his participant plan,[3] namely:
(i)core supports: $32,945.12;
(ii)capacity building supports (comprising funding for occupational therapist, physiotherapy and support coordination): $11,170.65;
(iii)capital supports: $1,025.00 (including $500 for rental of assistive technology and $525 for complex home modifications); and
[3] Exhibit 1, 170-175.
Plan variations and the applicable legislation
The Agreed Facts state:
8 The NDIS Plan has since been varied pursuant to s 47A of the National Disability Insurance Scheme Act 2013 (Cth) (the [NDIS] Act) to extend to a later date twice, and the current period of the NDIS Plan is 24 March 2023 – 23 March 2026. The parties are in agreement that the Tribunal has jurisdiction to consider the NDIS Plan following the variation by operation of s 103(2)(c)(i) of the [NDIS] Act.
Documentary evidence of each alleged variation and the date on which it was determined has not been given to the Tribunal.
Mr Swan, counsel for the NDIA, informed the Tribunal each variation was in respect of the plan reassessment date included in the approved SOPS for Mr Mizzi. Mr Swan explained, on instruction, these were determined ‘automatically’ under s 47A(1A)(a) of the NDIS Act once the reassessment date was reached and he understood each ‘automatic’ variation was determined by an NDIA officer. It was on this understanding the parties approached the legislation and the operation of transitional provisions in Part 3, Schedule 1 of the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Act 2024 (Back on Track Act). I will proceed on the assumption this information is correct and, on or about 23 March 2024 and 23 March 2025, the previously approved plan reassessment date was varied under s 47A(1A)(a) of the NDIS Act.
Consequently, by operation of item 129(1) in Pt 3, Sch 1 of the Back on Track Act, the terms of s 33, s 34 and s 35 of the NDIS Act as presently in force apply. Presently, s 34 is in the following terms:
(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 disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).
Rules made by the Minister under item 138 in Pt 3, Sch 1 of the Back on Track Act are engaged. The National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (NDIS Supports Transitional Rules) are applicable for the purposes of s 10 and s 34(1)(f) of the NDIS Act.
The plan variations are instrumental in engaging s 7 of the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024 (Miscellaneous Transitional Rules). By operation of s 7(4)(a) of the Miscellaneous Transitional Rules the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports Rules) prescribed for the purposes of s 33 and s 34 of the NDIS Act are applicable.
Issues
In determining reasonable and necessary supports which will be funded under the NDIS and approved in the SOPS for Mr Mizzi, three specific issues arise for determination in this review:
(a)Are the relocation supports Mr Mizzi is seeking in paragraph 6(a) (above) ‘NDIS supports’ for the purposes of s 34(1)(f), applying the NDIS Supports Transitional Rules (relocation supports issue)?
(b)For the purposes of s 7(3) of the Miscellaneous Transitional Rules, is a scheme of compensation under a State law within the meaning of ‘other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered (a) as part of a universal service obligation; or (b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability (construction issue)?
(c)Are the supports which meet the thresholds in s 34 of the NDIS Act most appropriately funded under the NDIS and not most appropriately funded or provided by WorkSafe Victoria for the purposes of s 7(3) of the Miscellaneous Transitional Rules (appropriate funding issue)?
Relocation supports issue
Mr Mizzi asserts that the relocation supports are reasonable and necessary disability-related supports which assisted him to manage a transition in his living arrangements to meet his disability support needs. He argues that the impairments to which his disability is attributable meant it was not safe or appropriate for him to live in the previous home, which was located on a steep block and required extensive modifications the NDIA did not consider to be reasonable and necessary on value for money grounds. He maintains that the NDIA suggested relocation might be a preferable option. Consequently, so the argument goes, the relocation supports assisted him to transition from his previous unsafe home to a new home which does not require modification, and they should be funded under the NDIS.
In Mr Mizzi’s submission, the relocation supports are within the meaning of ‘NDIS supports’ for the purposes of s 34(1)(f) of the NDIS Act. He contends the relocation supports are within the terms of item 3(b) in Schedule 1 of the NDIS Supports Transitional Rules and not within the terms of Schedule 2. He alleges the relocation supports directly relate to and are consistent with assistance managing a life stage transition, moving from his previous home which had become unsafe for him to a new safe home, in order to address his disability support needs.
Mr Mizzi submits, as Schedule 2 of the NDIS Supports Transitional Rules has an exclusionary purpose, specifying supports which are ‘not NDIS supports’, it should be strictly construed for the purposes of s 10(4) of the NDIS Act and s 5(2) of the NDIS Supports Transitional Rules and the express terms of the legislation should not be given an expansive or ambulatory reading. He asserts, if one adopts the 2-stage approach outlined in FSWN and National Disability Insurance Agency,[4] where a support is not expressly listed in Schedule 2, the decision-maker should not then attempt to construe the Schedule to include it but should move to consider Schedule 1.
[4] [2025] ARTA 114, [43].
The NDIA disagrees and alleges the relocation supports are squarely within the terms of Schedule 2 of the NDIS Supports Transitional Rules and they are not ‘NDIS supports’. This is so, the NDIA argues, as the relocation supports related to the purchase of a house and land package (item 1(b)), regulatory costs associated with the property transactions (item 1(f)), legal costs (item 2(h)) and loan repayments (item 2(l)). The NDIA also asserts that the relocation supports are not NDIS supports as they were incurred obtaining housing for Mr Mizzi where he is not a participant eligible for specialist disability accommodation (item 19(b)) and they would amount to housing subsidies or assistance buying a home (item 19(j)).
The NDIA disagrees with Mr Mizzi’s assertion the relocation supports are within the terms of item 3(b) in Schedule 1. In the NDIA’s submission, item 3 is directed to ‘assistance coordinating or managing’ life stages, transitions and supports, where supports are provided ‘on a short-term basis that provide assistance to manage life transitions’. The NDIA contends the relocation supports amount to one-off transactional costs which are not associated with coordinating or managing anything.
Mr Mizzi’s relocation from his previous home to his new residence was, on Mr Dang’s evidence at least, directly attributable to his disability support needs. Mr Dang reported Mr Mizzi’s previous home was not safe or accessible for him.[5] The prospect of Mr Mizzi relocating to more suitable premises was considered by the NDIA.[6] Mr Dang sought information about what ‘other supports’ the NDIA would offer to assist Mr Mizzi move to a more accessible property.[7] The NDIA issued an undated ‘Moving house’ policy document in respect of supports the NDIA might fund to help you move to a more accessible home.[8] This sets out the following categories of ‘moving costs’:
- removalists
- stamp duty
- conveyancing
- inspections
- mortgage fees
- real estate costs to sell the current home.[9]
[5] T1C, 14.
[6] T1C, 18.
[7] T1C, 17.
[8] T1K, 45.
[9] Ibid.
The following conclusions can be drawn from the Agreed Facts, the relevant evidence and the parties’ agreement the supports satisfy s 34(1)(aa) to (e) of the NDIS Act:
(a)The relocation supports will likely assist Mr Mizzi to meet his stated goals.
(b)With greater safety and accessibility in his new residence, it is likely the relocation supports will assist him to undertake social and economic participation activities.
(c)In consideration of the NDIA’s assessment of the complex home modification costs attaching to Mr Mizzi’s previous home[10] (which, by inference, may have exceeded $30,000),[11] the relocation costs are reasonable and represent value for money when the benefits of increased safety and accessibility and the likely cost of alternative supports are considered.
(d)On Mr Dang’s evidence, the relocation and related supports sought are likely to be effective and beneficial for Mr Mizzi in the context of his restricted mobility. Relocating into premises which are safer for Mr Mizzi is consistent with current good practice. Mr Mizzi has borne the majority of costs incurred in the relocation, including legal costs and stamp duty. The relocation costs Mr Mizzi is seeking, and the funding of ancillary costs incurred obtaining assistance with the relocation, takes account of what it is reasonable to expect his family, carers, informal networks and the community to provide.
[10] T14.
[11] Ibid, 97.
It is agreed the relocation supports set out in paragraph 6(a) (above) are reasonable and necessary supports for Mr Mizzi in the context of his goals and aspirations which meet each of the thresholds in s 34(1)(aa) to (e) of the NDIS Act. Being satisfied this is consistent with the available materials and having regard to the relevant principles in s 4 and s 31 of the NDIS Act, I will proceed on that basis.
The contentious issue is satisfaction of s 34(1)(f) in respect of NDIS supports.
At the level of principle, three observations can be made.
Firstly, for the purposes of s 33(2) of the NDIS Act, a support is ‘a practical description of the means by which a person with disability is assisted’ which does not encompass funding.[12] Each of the relocation supports Mr Mizzi is seeking should be approached in this way.
[12] McGarrigle v National Disability Insurance Agency [2017] FCA 308, [88].
Secondly, s 34(1)(f) of the NDIS Act engages s 10. The NDIS Supports Transitional Rules must be construed in that legislative context, having regard to the objectives of the NDIS Act in s 3 and the principles set out in s 4, s 17A and s 31. The language used in s 10(1) and (4) of the NDIS Act and in s 5(1) and (2) of the NDIS Supports Transitional Rules has a specific focus, ‘a support’. This is reinforced by use of the definite article, ‘the support’, in s 34(1) of the NDIS Act and s 2.3(a) to (f) in the Supports Rules. Consequently, satisfaction is required in respect of each support or kind of support, including those sought by the participant, that will be funded or provided under the NDIS. This is so even though the CEO has discretion under s 2.4 of the Supports Rules to consider ‘supports in a plan in relation to a particular support or package of supports to achieve an outcome’.
Thirdly, a declaration under s 10(4) of the NDIS Act, that a support is not an NDIS support for participants, excludes the support from funding under the NDIS. To make such a declaration the Minister must be satisfied ‘the support’ is ‘not appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally’. Discretion to grant relief from the general application of such an exclusionary declaration is conferred by s 10(6). In this context, having regard to the beneficial nature of the NDIS and the specific focus and exclusionary effect of such a declaration under s 10(4) of the NDIS Act, the supports specified in Schedule 2 to the NDIS Supports Transitional Rules and the language used to describe each support should be strictly construed.
The specific relocation supports Mr Mizzi is seeking are presented as contributions, commissions and fees incurred in selling his previous home and purchasing a new house which meets his disability support needs. This is apt to mislead. Financial contributions, commissions and fees are costs, not supports. For the purposes of s 34(1)(f) it is necessary to determine if each cost relates to a support which is reasonable and necessary for Mr Mizzi. Properly construed, the relocation supports Mr Mizzi is seeking are vendor marketing, real estate and PEXA services. The costs attaching to each support are indicative of the quantum of service rather than the kind of each support.
The reviewer who made the 23 August 2023 internal review decision,[13] prior to commencement of the Back on Track Act, approached Mr Mizzi’s relocation cost claims on a costs basis. The reviewer decided Mr Mizzi’s claims were excluded under rule 5.1(d) of the Supports Rules as these were day-to-day living costs which could not be funded under the NDIS.
[13] T1l.
Two subsequent developments bear upon this approach.
Firstly, in Warwick and National Disability Insurance Agency,[14] Perram J found that relocation costs do not fall within paragraph 5.1(d). This decision was upheld in National Disability Insurance Agency v Warwick,[15](Warwick) in which the Full Court explained that 'day-to-day living costs referred to in paragraph 5.1(d)', that is, day-to-day living costs that are not attributable to disability support needs, do not include 'additional living costs that are incurred by a participant solely and directly as a result of their disability support needs.[16] As the Court said in Warwick, the commencement of the Back on Track Act amendments do not assist interpretation of ss 5.1(d) and 5(2)(a) of the Supports Rules,[17] which remain in effect without amendment.
[14] [2024] FCA 616.
[15] [2025] FCAFC 100.
[16] Ibid, [62].
[17] Ibid, [75]-[77].
Secondly, the commencement of s 10 in the NDIS Act and the related NDIS Supports Transitional Rules introduces a new conception of ‘NDIS supports’ which must be satisfied before a reasonable and necessary support can be approved for funding under the NDIS.
I am satisfied the relocation supports Mr Mizzi is seeking are not excluded under paragraph 5.1(d) of the Supports Rules. Even if the relocation supports are considered to be ‘day-to-day living costs’, on Mr Dang’s evidence I am satisfied they are additional costs incurred solely and directly as result of his disability support needs. It was Mr Mizzi’s disability support needs that necessitated his relocation to the new residence as the previous home was unsafe for him.
Schedule 2
Item 1 of Schedule 2 to the NDIS Supports Transitional Rules is described in Column 1 as Day-to-day living costs – accommodation and household. Item 1(b), in Column 2, includes the purchase of land, or house and land packages (item 1(b)).
I would not construe ‘purchase’ narrowly to mean only the cost of the land or the house and land package. In this context, ‘purchase’ may be construed to include all services and activities which are directly related or ancillary to or required to effect the particular purchase.
On the Agreed Facts, Mr Mizzi purchased a house on a piece of land. Plainly, this is within the meaning of ‘house and land packages’, a term which is not given any special meaning. The related relocation supports Mr Mizzi is seeking, namely building and pest inspection, registration of transfer and PEXA services, are ancillary but directly related to the purchase. Consequently, they are within item 1(b) of Schedule 2. These supports are not NDIS supports for the purposes of s 10 and s 34(1)(f) of the NDIS Act. That being so, I am satisfied they cannot be approved for funding under the NDIS as reasonable and necessary supports.
I am not persuaded the relocation supports Mr Mizzi is seeking in respect of the sale of his previous house are within the terms of item 1(b). I do not accept ‘the purchase of land, or house and land packages’ can be construed to include the sale of a house. Doing so would strain the ordinary meaning of the words used. Item 1(b) is squarely directed to supports relating to the purchase of a house and land package and it does not include supports relating to the separate sale of a house.
The precise nature of the relocation support Mr Mizzi is seeking in respect of ‘funds to discharge mortgage’ over his previous home is not established by relevant material. In a statement of account, it is described as Funds required to discharge your Mortgagee.[18] In all likelihood it is a final payment of a loan amount or a fee under the terms of the mortgage being discharged. In either case, it is within the terms of item 2(l) in Schedule 2. That being so, I am satisfied it is not an NDIS support for the purposes of s 34(1)(f) of the NDIS Act and it cannot be approved for funding under the NDIS.
[18] Exhibit 1, 278.
I do not accept the NDIA’s submission that the PEXA fee relating to the sale of Mr Mizzi’s previous house is within the terms of item 1(f) of Schedule 2. The use of an online property exchange service such as PEXA is a matter of convenience, albeit perhaps a matter of common practice which might be considered as an inevitable step in the sale or purchase of a property. The fee is better described as a fee for service. The relocation support Mr Mizzi is seeking is the service offered by PEXA to which the fee relates. I am not persuaded the fee is equivalent to a regulatory fee or bill of the kinds set out in item 1(f) or a legal cost for the purposes of item 2(h) of Schedule 2.
I am not persuaded the vendor marketing, real estate and PEXA services are supports within the terms of items 19(b) or (j) in Schedule 2. The supports are not within the phrase ‘housing for people with disability, other than participants eligible for specialist disability housing’ in item 19(b) or the phrase ‘housing subsidies, including rental bonds, mortgage relief and assistance with buying a home’ in item 19(j). Simply put, the vendor marketing, real estate and PEXA services related to the sale of Mr Mizzi’s previous home for reasons relating to his disability. On a plain reading, these are not supports in the form of providing housing for people with disability or housing subsidies associated with buying a home.
Consequently, I am satisfied the vendor marketing, real estate and PEXA services relating to the sale of Mr Mizzi’s previous house are not within the terms of Schedule 2.
Schedule 1
The next step is to determine if these relocation supports are within the terms of Schedule 1.
Mr Mizzi asserts they are squarely within the terms of item 3(b) of Schedule 1.
The NDIA asserts these supports are one-off costs which are not within this item.
Item 3(b) is in the following terms:
3 Assistance in coordinating or managing life stages, transitions and supports Supports provided on a short-term basis that provide assistance to manage life transitions.
This includes the following:
Participants or prospective participants generally …
(b) transition to new living arrangements;
…
As can be seen, the category includes assistance coordinating or managing transitions and the provision of short-term supports to assist a participant manage life transitions, including to new living arrangements.
On a natural reading, ‘supports provided on a short-term basis’ may well include one-off supports. The phrase ‘assistance to manage life transitions’ can readily be understood to refer to transitions in the life of the participant in the context of their disability, including transition to ‘new living arrangements’. ‘New living arrangements’ may well include relocating from one residence to another safer residence which better meets the participant’s disability support needs.
In this context, ‘assistance’ may well be active as the NDIA asserts, in the sense of short-term assistance provided by an allied health or support worker during a period of transition or to facilitate a transition. Nonetheless, the text is sufficiently broad to encompass other kinds of ‘assistance’, including where the assistance to manage a relevant transition is provided on a one-off basis. This includes where, as in Mr Mizzi’s case, the assistance is provided by a real estate agent or an online property exchange platform to manage the sale of a property which is no longer safe or suitable for the participant in the context of their disability.
It is clear enough Mr Mizzi engaged the vendor marketing, real estate and PEXA services to assist him to transition from his previous home into new living arrangements. The new living arrangements involved the purchase of a new residence. Provision is expressly made in item 1(b) of Schedule 2 in respect of the purchase but not the sale of house and land packages. Consequently, the conception of supports to assist transition into a new living arrangement does not extend to supports for the purchase of a new residence, which are not ‘NDIS supports’. It does not follow that supports to assist the sale of Mr Mizzi’s previous unsafe residence should also be excluded.
Had the Minister intended to include the sale of a house in item 1 of Schedule 2 it would have been a matter of simplicity to do so. The Explanatory Statement refers to these matters under the heading Day-to-day living costs and refers only to purchases. One must proceed on the text prescribed, doing the best to interpret the language used according to well established principles.[19]
[19] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2.
It follows, and I am satisfied, that the services Mr Mizzi engaged to assist transition from his previously unsafe home are within the terms of item 3(b) of Schedule 1 even though services relating to his purchase of a new residence are excluded. The transition was directly related to his disability support needs. To the extent the costs he incurred might be considered as costs of daily living, they are additional costs of reasonable and necessary supports directly attributable to his disability support needs which are not excluded under s 5.1(d) and s 5.2(a) of the Supports Rules.
The vendor marketing, real estate and PEXA services Mr Mizzi obtained to assist transition from his previous unsafe residence are relocation supports within the terms of item 3(b) of Schedule 1. This means they are ‘NDIS supports’ for the purposes of s 34(1)(f) of the NDIS Act.
As Mr Mizzi obtains compensation under the ‘WorkSafe Victoria’ compensation scheme, the funding or provision of these supports under the NDIS turns on resolution of the construction issue and the appropriate funding issue.
Construction issue
Mr Mizzi asserts the ‘WorkSafe Victoria’ compensation scheme is not a general system of service delivery within the ambit of s 7(3) of the Miscellaneous Transitional Rules. He argues the ‘WorkSafe Victoria’ statutory compensation scheme under the Accident Compensation Act 1985 (Vic) (Accident Act) is not a general system of service delivery or support service and it is not offered as part of a universal service obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability. Mr Mizzi asserts if the legislature had intended to include statutory or other compensation schemes within the scope of ‘general systems of service delivery’ or within the meaning of ‘support services’ it could expressly have done so.
Mr Mizzi cavils with Santagada and National Disability Insurance Agency[20] (Santagada), on which the NDIA relies, and contends it is not binding authority. He asserts the Tribunal in Santagada wrongly decided that the ‘WorkSafe Victoria’ compensation scheme is a general system of service delivery without being asked to consider relevant matters which have been squarely raised in this case.
[20] [2025] ARTA 676.
The NDIA does not agree. In the NDIA’s submission the terms of s 7(3) of the Miscellaneous Transitional Rules and s 34(1)(f) prior to 3 October 2024 are sufficiently broad to include statutory compensation or insurance schemes. The NDIA relies on Santagada in support of this interpretation, which it contends is entirely consistent with the intentions of the legislature as expressed in the Explanatory Statement to the Miscellaneous Transitional Rules.
The NDIA asserts that the WorkSafe Victoria compensation scheme is intended to be captured by the Miscellaneous Transitional Rules and, where WorkSafe Victoria has adopted responsibility for the funding of supports required as a result of the Participant’s disability, the NDIS does not have any responsibility to fund such supports.[21]
[21] Agency’s Statement of Facts, Issues and Contentions, undated, [17].
In the NDIA’s submission, the NDIS is a ‘fully funded’ scheme with no scope to partially fund reasonable and necessary supports where the statutory thresholds are met: McGarrigle v National Disability Insurance Agency[22] (McGarrigle) and National Disability Insurance Agency v Foster[23] (Foster). The NDIA contends the NDIS cannot properly be applied to top-up partial funding for supports by WorkSafe Victoria under its compensation liability in respect of Mr Mizzi’s injury and related impairment: Young and National Disability Insurance Agency[24] (Young), XNTW and National Disability Insurance Agency[25] (XNTW).
[22] [2017] FCA 308, [94].
[23] [2023 FCAFC 11, [98].
[24] [2014] AATA 401.
[25] [2023] AATA 759.
No express provision is made for the inclusion of a statutory scheme of insurance or compensation under a Commonwealth, State or Territory law within the terms of s 34 of the NDIS Act, including s 34(1)(f) prior to 3 October 2024, or within the terms of s 7(3) of the Miscellaneous Transitional Rules.
Following CIC Insurance Ltd v Bankstown Football Club Ltd,[26] the principled approach to statutory construction was recently discussed in Palmanova Pty Ltd v Commonwealth of Australia.[27] For present purposes, three key points should be highlighted:
(a)The construction of a statutory provision begins and ends with the statutory text understood in context and in light of the statutory purpose – being what the provision is designed to achieve in fact – insofar as that purpose is discernible from the statutory text and context.[28]
(b)Use of extrinsic material in the construction of a provision of a Commonwealth statute is guided but not governed by a non-exhaustive list of categories of material statutorily recognised to have potential to illuminate the statutory context.[29]
(c)Focus on the statutory text is not to the exclusion of extrinsic material that has the potential to assist in fixing its meaning.[30]
[26] [1997] HCA 2.
[27] [2025] HCA 35
[28] Ibid, [4].
[29] Ibid, [5].
[30] Ibid, [6].
The statutory text
Subsection 7(3) of the Miscellaneous Rules is in the following terms:
(3) The matter of which the CEO must be satisfied is that the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(a) as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
It is the ambit, and therefore the meaning, of the highlighted section of the text that is controversial.
The subsection has a specific subject: ‘the support’. The test it poses has two conjoined but inverse limbs: the support is ‘most appropriately funded or provided through the NDIS’ (the first limb); and the support is ‘not most appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered (a) as part of a universal service obligation; or (b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability’ (the second limb).
The systems of service delivery and support services referred to in the second limb are not otherwise defined or given special meaning in the Miscellaneous Transitional Rules or the NDIS Act. The definition given to the term ‘service systems’ in s 6.4 of the Supports Rules does not assist understanding or take the matter further.
Considering the plain language used in the text of the second limb, it is clear enough two broad categories of systems and services are included.
The first is a category of ‘general systems of service delivery or support services offered by a person, agency or body’. The second category includes ‘systems of service delivery or support services offered’ under the terms of paragraphs (a) or (b).
The adjective ‘general’ takes its meaning from the context in which it is used. In the context of the second limb, it conditions the first category of systems and services offered. Read in this way, ‘general systems of service delivery or support services’ refers to systems and services which relate to, affect, include or may be participated in by a class or group or which are widespread or of a general nature. Greater meaning is not illuminated by deconstructing the phrase and resorting to the ordinary meaning of the individual words used, nor would it be appropriate to do so.[31]
[31] National Disability Insurance Agency v Warwick [2025] FCAFC 100, [42].
Use of the word ‘other’ implies that the NDIS, a national cooperative Commonwealth, State and Territory statutory insurance scheme with prescribed statutory parameters which limit availability to people with disability who meet specific access criteria, is at least comparable to the ‘general’ systems of service delivery and support services referred to. This would suggest other Commonwealth, State or Territory statutory schemes, including in respect of insurance or compensation, could be within the ambit of s 7(3) of the Miscellaneous Transitional rules if they are ‘general systems of service delivery or support services’.
The Productivity Commission noted in its 2011 Disability Care and Support report (Productivity Commission report),[32] no-fault accident schemes provide a greater level of supports [than the general ‘safety net’], partly due to their relatively narrow target group.[33] Even though this observation was made in 2011, it remains apposite. Mr Mizzi asserts the relatively narrow target group of a no-fault statutory scheme of insurance or compensation under a Commonwealth, State or Territory law is not consistent with ‘general systems of service delivery or support services’ for the purposes of s 7(3).
[32] No 54, 31 July 2011.
[33] Ibid, 119.
Considering s 3(1) of the NDIS Act, among other things, the objects are to:
…
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme; and
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
…
Subsection 3(3) sets out the matters to which regard must be had:
(3) In giving effect to the objects of the NDIS Act, regard is to be had to:
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme; and
(c) the broad context of disability reform provided for in:
(i) disability strategies agreed to by the Commonwealth and each host jurisdiction from time to time; and
(ii) the Carer Recognition Act 2010; and
(d) the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.
Note: For subparagraph (c)(i), in 2024 the relevant strategy was Australia’s Disability Strategy 2021‑2031, accessible through the Department’s website.
In this context, plainly read, ‘services by other agencies, Departments or organisations’ is likely to include no-fault statutory schemes of insurance or compensation under Commonwealth, State or Territory laws even though disparities between such schemes are likely to complicate a nationally consistent approach to the access and funding of supports for people with disability. I am not persuaded such schemes are within the meaning of ‘mainstream services’.
In previous cases on which the NDIA relies, commencing with Young and National Disability Insurance Agency[34] (Young) and those which followed it, the systems of service delivery and support services referred to in the text of s 34(1)(f) of the NDIS Act prior to 3 October 2024 and presently in s 7(3) of the Miscellaneous Transitional Rules have been referred to as ‘generic’ or ‘mainstream services’. This language derives from the Productivity Commission report in reference to services that ‘people generally use’ and ‘services available to the broader population’,[35] such as education, health care, public housing, transport and education services. On the issue of insurance and compensation scheme, the Productivity recommended the creation of a National Injury Insurance Scheme (NIIS) to address disparities in the arrangements covering catastrophic injuries across jurisdictions and in the common law, and that people with such newly acquired injuries should be covered by the NIIS and excluded from the NDIS.[36] The Commission stated:
Currently, there is a range of state and territory arrangements for insuring people for disability arising from accidents, including workers’ compensation schemes throughout Australia, hybrid no-fault third-party motor vehicle insurance arrangements in some states and territories (Northern Territory, Victoria, Tasmania and New South Wales), limited provision for people suffering disability as a result of crime (a major and rising source of catastrophic injury) and fault-based medical indemnity and public liability insurance.
There is little rationale for the striking differences in state and territory arrangements for dealing with catastrophic injury.[37]
[34] [2014] AATA 401.
[35] Ibid, 237-238.
[36] Productivity Commission report, Recommendations 3.1 and 18.1.
[37] Ibid, 43.
Despite the expansion of no-fault schemes, disparities persist in respect of coverage, eligibility criteria and the nature and extent of supports.
For reasons explained in National Disability Insurance Agency v Davis[38] (Davis) and XNTW and National Disability Insurance Agency[39] (XNTW), the contents of the Productivity Commission’s report are unlikely to assist determining the meaning of particular provisions in the NDIS Act. In Davis, the Court considered this to be ‘wholly inappropriate’[40]. This has an even sharper point in respect of the Miscellaneous Transitional Rules which came into effect on 3 October 2024. It is not at all clear the meaning and ambit of s 7 of the Miscellaneous Transitional Rules is accurately illuminated by the historical context and the thinking of the Productivity Commission 14 years ago.
[38] [2022] FCA 1002, [91]-[100].
[39] [2023] AATA 759.
[40] Davis, [96].
There are more contemporaneous and relevant extrinsic materials and policy materials which illuminate meaning in the context of the Back on Track Amendments and related transitional rules.
Statutory purposes, context and extrinsic materials
Over time, governments have engaged in a process of negotiation to reach agreement about NDIS issues, including in respect of the interaction of the NDIS with other systems and services within the cooperative framework. The operation of the NDIS in the context of other systems and services relevant to people with disability in each host jurisdiction is addressed in bilateral agreements made between the Commonwealth and each State and Territory ‘host jurisdiction’. These are extrinsic materials which illuminate the statutory context of s 7 of the Miscellaneous Transitional Rules and relevant matters agreed by the Commonwealth, States and Territories.
For example, the Bilateral Agreement between the Commonwealth of Australia and the State of Victoria on the National Disability Insurance Scheme which commenced on 1 July 2018 states:
12. The NDIS operates alongside other service systems in accordance with the APTOS. All governments have agreed that the guiding principles outlined in the APTOS will be used to determine the funding and delivery responsibilities of the NDIS; and that the interactions of the NDIS with other systems will reinforce the obligations of other service delivery systems to improve the lives of people with disability, in line with the National Disability Strategy.[41]
[41] The National Disability Strategy has been replaced by the Australian Disability Strategy 2021-2031.
‘APTOS’ refers to the Principles to determine the responsibilities of the NDIS and other service system agreed to by the Council of Australian Governments (the acronym refers to Applied Principles and Tables of Service). This document is expressly referred to in the note to paragraph 7.3 in Schedule 1 to the Supports Rules. The categories of service covered in tables in the APTOS, with one exception relating to Aged Care, are reflected in the headings set out in paragraph 3.6 of the Supports Rules which are expanded upon in Schedule 1 to those Rules.
These documents make no reference to a scheme of compensation under a Commonwealth, State or Territory law. As no reference was made by the parties to the APTOS, I will go no further on this point than to note the document includes the following overarching statements:
…
Governments agree that the principles outlined in this document will be used to determine the funding and delivery responsibilities of the NDIS in achieving this vision…
…
1. People with disability have the same right of access to services as all Australians, consistent with the goals of the National Disability Strategy which aims to maximise the potential and participation of people with disability.
2. The NDIS will fund personalised supports related to people’s disability support needs, unless those supports are part of another service system’s universal service obligation (for example, meeting the health, education, housing, or safety needs of all Australians) or covered by reasonable adjustment (as required under the Commonwealth Disability Discrimination Act or similar legislation in jurisdictions).
3. Clear funding and delivery responsibilities should provide for the transparency and integrity of government appropriations consistent with their agreed policy goals.
4. There should be a nationally consistent approach to the supports funded by the NDIS and the basis on which the NDIS engages with other systems, noting that because there will be variation in non-NDIS supports funded within jurisdictions there will need to be flexibility and innovation in the way the NDIS funds and/or delivers these activities.
5. In determining the approach to the supports funded by the NDIS and other service systems governments will have regard to efficiency, the existing statutory responsibilities and policy objectives of other service systems and operational implications.
6. The interactions of people with disability with the NDIS and other service systems should be as seamless as possible, where integrated planning and coordinated supports, referrals and transitions are promoted, supported by a no wrong door approach.
In this context, the Commonwealth and host jurisdictions have agreed upon Category A rules made under s 209 of the NDIS Act. These include the Supports Rules made for the purposes of s 33 and s 34, and the National Disability Insurance Scheme (Supports for Participants – Accounting for Compensation) Rules 2013 (Compensation Rules) made for the purposes of s 35.
Subsection 209(4) limits the Minister’s power to the extent that:
The Minister must not make Category A National Disability Insurance Scheme rules unless the Commonwealth and each host jurisdiction have agreed to the making of the rules.
The Miscellaneous Transitional Rules are made under the power conferred on the Minister by item 138 of Part 3, Schedule 1 to the Back on Track Act.
The power of the Minister to make rules made under item 138(1) is limited to matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Schedule, noting under s 138(2) rules made within 12 months may provide that provisions of this Schedule, or any other Act or instrument, have effect with any modification prescribed by the rules.
It is within this transitional framework the purposes of s 7 of the Miscellaneous Transitions Rules can be understood. The section is a transitional measure which preserves the previous terms of s 34(1)(f) prior to 3 October 2024 pending the making of new rules addressing how a support provided under a scheme of insurance or under a Commonwealth, State or Territory law is to be taken into account. The purpose of the transitional provision is to ‘re-impose’ the requirement to consider whether a support is most appropriately funded or provided under the NDIS, and not most appropriately funded or provided under other systems or services within the second limb of s 7(3) of the Miscellaneous Transitional Rules, when determining if it is a reasonable and necessary support for the participant.
The Explanatory Statement is illuminating. It states that the Miscellaneous Transitional Rules make three specific transitional arrangements which will support implementation of the Back on Track Act amendments. Only one is presently relevant, and this is discussed in the following terms:
The Instrument will also impose a requirement that the Chief Executive Officer (CEO) of the National Disability Insurance Agency must specifically consider whether reasonable and necessary supports are appropriately funded by the NDIS under subsection 34(1). This is particularly relevant to supports that may otherwise be provided through statutory compensation schemes.
This requirement exists in paragraph 34(1)(f), which currently provides that to be a reasonable and necessary support the CEO must be satisfied that:
(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
- as part of a universal service obligation; or
- in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
As noted above the Amending Act repeals and replaces this with a requirement for a support to be an NDIS support.
One of the criteria for prescribing a support as an NDIS support is that it is appropriately funded by the NDIS (or is not appropriately funded by the NDIS, in the case of something that is not an NDIS support).
Further work is required to understand how some supports interact with other supports on the list and the responsibility of the NDIS compared to other service systems. This is primarily a concern for supports that are available through statutory insurance schemes and other similar compensation arrangements. This needs to be carefully worked through to ensure participants are not disadvantaged by any change.
In the interim, the Instrument re-imposes the requirement to consider whether a support is appropriately funded or provided by the NDIS in assessing whether it is reasonable and necessary. This will apply only until rules are made that provide how the CEO is to take into account a support that may be funded or provided under a scheme of insurance, or under a Commonwealth, State or Territory law.
It should be noted that the consideration of whether a support is most appropriately funded or provided by the NDIS is done by the transitional section 10 rules for the vast majority of supports. In those circumstances, the CEO will be easily satisfied of whether the support is most appropriately funded or provided by the NDIS by considering the transitional section 10 instrument and deciding whether the support is or is not an NDIS support. The only circumstance in which a support may be an NDIS support but not appropriately funded or provided by the NDIS is where that support is not captured by the transitional section 10 instrument. This will primarily be those provided by statutory insurance schemes and other similar compensation arrangements.
Further information is provided in the explanation for s 7 of the Miscellaneous Transitional Rules, which includes:
Section 7 provides an additional requirement for the CEO to be satisfied of in deciding whether a support is reasonable and necessary in accordance with section 34 of the NDIS Act. This relates to a change that will be made by the Amending Act to replace existing paragraph 34(1)(f) with a requirement for a support to be an NDIS support. The change made by section 7 will require the CEO to also be satisfied that the support is appropriately funded or provided by the NDIS. This additional requirement will only apply until new Category A NDIS rules are made that specify how the CEO is to take into account supports in respect of personal injury that may be funded or provided under a scheme of insurance, or under a Commonwealth, State or Territory law. This is because it is intended to primarily capture supports that are more appropriately provided by a scheme of statutory insurance or other similar compensation arrangement, which will no longer be necessary once specific rules have been made.
The transitional nature of these matters can readily be understood within the powers conferred by item 138 in Part 3, Schedule 1 of the Back on Tack Act. The ‘additional requirement’ will only apply until ‘new Category A NDIS rules’ are made ‘that specify how the CEO is to take into account supports in respect of personal injury that may be funded or provided under a scheme of insurance, or under a Commonwealth, State or Territory law’.
The stated intention of the transitional measure is to ‘capture supports that are more appropriately provided by a scheme of statutory insurance or other similar compensation arrangement’ but ‘not captured by the transitional section 10 instrument’, the NDIS Support Transitional Rules. The Explanatory Statement does not address the existing ‘compensation’ mechanisms in the NDIS Act and any potential interaction with the Compensation Rules. It proceeds on the basis that statutory schemes of insurance or compensation are included within the previous terms of s 34(1)(f) of the NDIS Act prior to 3 October 2024.
This is controversial. The Tribunal was not taken to binding authority that statutory schemes of insurance or compensation under Commonwealth, State or Territory laws are within the terms of s 34(1)(f) of the NDIS Act prior to 3 October 2024. The proposition does not align with the Productivity Commission’s analysis of general or mainstream systems and services and related recommendations referred to in the Revised Explanatory Memoranda to the NDIS Act which states:
The criteria listed in clause 34 balances what support is ‘necessary’ to assist the participant to pursue their goals (in accordance with the participant’s statement of goals and aspirations) and to facilitate their social and economic participation, with what is ‘reasonable’, including whether the cost of the support represents value for money and is reasonable, the efficacy of the support, whether it is not reasonable to expect families and carers to provide the support, and whether the support would be more appropriately provided by other mainstream services. [42]
[42] Revised Explanatory Memoranda, National Disability Insurance Scheme Bill 2013, 20.
Whether or not ‘mainstream services’ in this context refers to statutory schemes of insurance or compensation under Commonwealth, State or Territory laws, the Explanatory Statement includes these schemes within the interim transitional measure and the ‘additional requirement’ without reference to existing provisions and prescribed rules relating to compensation.
The NDIA contends the supports funded under the NDIS for Mr Mizzi are comparable to supports funded, or able to be funded under the WorkSafe Victoria Clams Manual,[57] by WorkSafe Victoria:[58]
[57] WSV Claims Manual:
[58] Respondent’s undated Statement of Facts, Issues and Contentions, [22].
21. WSV may pay for the following types supports:
(a) Medical treatment includes; doctor, dentist, nursing care, orthosis, consumables, pain management and therapies;
(b) Rehabilitative therapies; occupational therapist, optometrist, podiatrist, psychologist, speech therapist, acupuncture, audiology, dietetics, exercise physiology, social work, remedial massage, naturopathy, physiotherapy and chiropractor;
(c) Return to work support (including workplace modifications);
(d) Home modifications;
(e) Vehicle modifications;
(f) Attendant care;
(g) Community access;
(h) Household and personal services (includes help with daily tasks such as shopping, cooking or banking);
(i) Aids and appliances; and
(j) Travel for treatment.
The NDIA provided a table setting out supports it alleges Mr Mizzi is receiving from the NDIS and WorkSafe Victoria:
Existing NDIS funded support Support currently provided by WorkSafe Victoria Low-cost assistive technology The Participant has indicated that WorkSafe Victoria only funds assistive technology requests on a needs basis.
WorkSafe Victoria has in the past contributed $1,050 or 50% of the cost of a mattress.
The Agency notes that this is a support funded by WorkSafe Victoria (see above at 21(i)).Assistance with Personal Domestic Activities Two hours per fortnight of home cleaning House And/or Yard Maintenance Two hours per month of gardening/lawn maintenance (Autumn/Winter)
Two hours per fortnight of gardening/lawn maintenance (Spring/Summer)
Gutter cleaning (based on quotes)Assistance With Self-Care Activities Three hours per week of attendant care service Occupational therapy The Participant has previously advised that they were “awaiting response” from WorkSafe Victoria in respect of this support. The Agency notes that this is a support funded by WorkSafe Victoria (see above at 21(b)). Physiotherapy The Agency notes that this is a support funded by WorkSafe Victoria (see above at 21(b)). Level 2 support coordination The Agency contends this support is unnecessary in circumstances where the Participant’s supports are appropriately provided by WorkSafe Victoria (i.e. there are no supports requiring coordination) Rental of assistive technology The Agency notes that this is a support funded by WorkSafe Victoria (see above at 21(b)). Home modifications The Agency notes that this is a support funded by WorkSafe Victoria (see above at 21(i)).
The Agreed Facts state that WorkSafe Victoria provided compensation to Mr Mizzi, including:
(a)$1,050.00 towards a specialised mattress;
(b)$2,498.60 annually for home cleaning;
(c)$7,980.00 annually for garden maintenance; and
(d)The partial cost of physiotherapy consultations.
It is not at all clear under which particular heads of compensation entitlement WorkSafe Victoria’s liability has been met in the past or which might arise in future in respect of the kinds of supports the NDIA has identified. There is insufficient evidence to determine the ambit, thresholds and limits of relevant applicable provisions in Part IV of the Accident Act (and any applicable provisions of the WIRC Act).
Nevertheless, I accept that WorkSafe Victoria’s liability in respect of Mr Mizzi’s work injury is not exhausted. Subject to meeting the applicable thresholds for payment under particular heads of compensation, including the causal nexus with a compensable injury, Mr Mizzi might be able to obtain supports of the kind the NDIA identified. It does not follow that all Mr Mizzi’s disability support needs are capable of being met under the Accident Act or the WorkSafe Victoria compensation scheme, where his support needs are attributable to causes other than his compensable injury.
Most appropriate mechanism
The question of whether a support is most appropriately funded or provided under the NDIS and not under another general system or service is not answered by the mere existence, alone, of a general system or service other than the NDIS under which the particular reasonable and necessary supports might be funded.
The existence of an alternative to the NDIS is one relevant factor to consider when determining if funding under the NDIS and not another system or service is most appropriate in the particular circumstances of the case. This must turn on the relevant facts and evidence in each case.
Despite the Agreed Facts, there is insufficient relevant material to determine which of Mr Mizzi’s impairments met the disability requirements in 2018. This leads to a state of uncertainty about which of his impairments would meet the present threshold for the purposes of s 34(1)(aa) of the NDIS Act.
On the available materials, particularly the evidence of Mr Dang, it is likely Mr Mizzi’s impairment-related disability support needs have a broader compass than the effects of his work injury alone. In all likelihood, his disability support needs resulting from permanent impairments are affected by age-related changes, degenerative changes and other serious health conditions.
I am satisfied Mr Mizzi’s Phantom Limb Pain, Chronic Back Pain, liver transplant failure (and related symptoms) and type 2 diabetes, as well as age-related changes, are likely to contribute to his disability support needs, including the supports previously approved by the NDIA on 23 March 2023.
Applying Note (b) for the purposes of s 34(1)(aa) of the NDIS Act, the impact of Mr Mizzi’s chronic pain, liver failure and type 2 diabetes on his disability support needs arising from impairments relating to his right through-knee amputation which were accepted by the NDIA can be taken into account.
WorkSafe Victoria’s liabilities under the Accident Act are limited to compensation related to Mr Mizzi’s 1986 injury and related effects.
It is not at all clear that WorkSafe Victoria is or would likely be liable, or that Mr Mizzi is or would likely be entitled, to compensation under the Accident Act in respect of all his impairments and related disability support needs.
Section 7 of the Miscellaneous Transitional Rules is not an invitation to speculate about such matters. It is probable WorkSafe Victoria’s liability will continue in respect of Mr Mizzi’s 1986 injury. It does not follow and it cannot be assumed this would cover all the impairments to which Mr Mizzi’s disability is attributable and his related disability support needs. Where a causal connection between the support Mr Mizzi requires and his compensation injury is not proved, the support would not be funded or provided by WorkSafe Victoria.
This weighs heavily against finding that the supports set out in paragraph 6(a)(i), (ii) and (vi) and 6(b) (above) are most appropriately funded under the WorkSafe Victoria compensation scheme.
Mr Mizzi expressly referred to his WorkSafe Victoria compensation arrangements in his participant plans from 2021, at least. From March 2021, and impliedly from March 2018, reasonable and necessary supports for Mr Mizzi have been approved for funding under the NDIS. By inference at least, for the purposes of s 34(1)(f) as it then stood, decision-makers were positively satisfied Mr Mizzi’s supports were most appropriately funded under the NDIS and not most appropriately funded under WorkSafe Victoria.
Despite this, there is no evidence the NDIA applied the Compensation Rules prescribed under s 35 to calculate a compensation reduction amount to be applied to supports otherwise approved for funding under the NDIS. It is only now, in the context of these proceedings, the assertion is made that the reasonable and necessary supports approved on 23 March 2023 are not most appropriately funded or provided under the NDIS and they are most appropriate funded or provided under WorkSafe Victoria.
Even though decisions made in the past are not relevant to the Tribunal’s present task, these are matters of contextual relevance to Mr Mizzi’s present circumstances and approval of reasonable and necessary supports in the context of his compensation.
As Mr Mizzi has been accepted as a participant in the NDIS since 2018, having disclosed his compensation arrangements, I can see no good or compelling reason why the compensation reduction mechanisms provided under the NDIS should not be applied to take account of his compensation. To my mind, it is surprising this has not been done previously.
The NDIA asserts the compensation provisions in Chapter 5 of the NDIS Act and the Compensation Rules are not engaged in this case for historical reasons and because the definition of ‘compensation’ in s 11 of the NDIS Act is not satisfied. This assertion is not consistent with the facts of the case or the language used in legislation, including the definition of ‘compensation’ and the Compensation Rules.
Under the Compensation Rules, account can be taken of the compensation supports Mr Mizzi receives or is expected to receive from WorkSafe Victoria. Doing so will avoid any duplication of funding for reasonable and necessary supports under the NDIS and the WorkSafe Victoria compensation scheme, and it will neutralise any negative effect of such funding on the sustainability of the NDIS.
I am satisfied this is the most appropriate mechanism in the circumstances.
With the greatest respect, I decline to follow the Tribunal’s decision in Santagada. The case can be distinguished on its facts and it is not binding. Furthermore, key issues raised in Mr Mizzi’s case were not squarely put or argued in Santagada.
Considering all the relevant matters for the purposes of s 7.3 of the Miscellaneous Transitional Rules, I am satisfied the supports set out in paragraph 6(a)(i), (ii) and (vi) and 6(b) (above) are most appropriately funded under the NDIS, and they are not most appropriately funded under the WorkSafe Victoria scheme in the particular circumstances of his case.
No issue was raised or taken in respect of a possible residual discretion in s 33(2) of the NDIS Act. As that matter is a controversial departure from the orthodox reading of s 33(2) which is not yet resolved,[59] and no related argument has been led in this case, I will go no further with it.
[59] Warwick v National Disability Insurance Agency [2024] FCA 616, [7]; WRMF [2020] FCAFC 79, [158]-[167].
Conclusion
The vendor marketing ($1,900), real estate ($13,110) and PEXA ($132.66) services relating to Mr Mizzi’s transition from his previous home and the supports approved on 23 March 2023 are each NDIS supports within the terms of item 3(b) of Schedule 1 to the NDIS Supports Transitional Rules and they are reasonable and necessary NDIS supports for the purposes of s 34(1)(f) of the NDIS Act.
For the purposes of s 7(3) of the Miscellaneous Transitional Rules, these relocation supports and the supports approved on 23 March 2023 are most appropriately funded under the NDIS and not most appropriately funded under the WorkSafe Victoria compensation scheme.
Account should be taken of Mr Mizzi’s ongoing compensation under the Compensation Rules.
This means the decision under review must be set aside. In substitution, the Tribunal decides to approve a statement of participant supports for Mr Mizzi under s 33(2) of the NDIS Act which is to comprise:
(a)for the purposes of s 33(2)(a), replication of the general supports (if any) specified in the statement of participant supports approved on 23 March 2023;
(b)for the purposes of s 33(2)(b), the following are reasonable and necessary supports which will be funded under the National Disability Insurance Scheme:
(iv)core supports, including supports with activities of daily living and self-care: $32,945.12;
(v)capacity building supports, including occupational therapy, physiotherapy and support coordination supports: $11,170.65;
(vi)capital supports, including rental of assistive technology: $1,025.00;
(vii)relocation supports, specifically vendor marketing support ($1,900), real estate support ($13,110) and PEXA support ($132.66).
(c)for the purposes of s 33(2)(c), the plan is to be re-assessed within the period of 12 months for the day this decision has effect; and
(d)for the purposes of s 33(2)(d), the management of the funding for supports as approved on 23 March 2023 will continue; and
(e)for the purposes of s 33(2)(e), the management of other aspects of Mr Mizzi’s plan as specified in the statement of participant supports approved on 23 March 2023 will be replicated.
Date of hearing: 22 August 2025
Counsel for the Applicant: Mr A. Di Pasquale
Solicitors for the Applicant: DLA Piper
Counsel for the Respondent: Mr N. Swan
Solicitors for the Respondent: Mills Oakley
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