MMBX and National Disability Insurance Agency - [2022] AATA 13

MMBX and National Disability Insurance Agency [2022] AATA 13 (7 January 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s):2020/3244
Re:MMBX
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member Damien O'Donovan
Date:7 January 2022
Place:Canberra

The Tribunal directs that the respondent provide to the Tribunal a statement of participant supports for approval which is consistent with the reasons set out above within 14 days. Upon receipt of the Statement, the Tribunal will set aside the decision of 13 August 2021 and approve the statement so provided.
………..[Sgd]……..
Senior Member Damien O’Donovan
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – statement of participant supports – whether items which facilitate the applicant living independently within the applicant’s family home should be assessed individually or as a single ‘independent living’ support – whether a companion dog is a reasonable and necessary support - whether identified supports should be included in statement of participant supports – decision under review set aside
Legislation
Administrative Appeals Tribunal Act 1975 ss 42D
National Disability Insurance Scheme Act 2013 ss 3-4, 31, 33-34, 99-100
National Disability Insurance Scheme (Plan Management) Rules 2013
The National Disability Insurance Scheme (Supports for Participants) Rules 2013
Cases
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v McGarrigle [2017] FCAFC 132
National Disability Insurance Agency v WRMF [2020] FCAFC 79
REASONS FOR DECISION
Senior Member Damien O'Donovan
5 January 2022
The applicant is a participant in the National Disability Insurance Scheme. He has in place a plan prepared in accordance with the requirements of the National Disability Insurance Scheme Act 2013 (NDIS Act). Within that plan he has a number of funded supports which have been included in what is called his statement of participant supports (Statement), but there are additional matters which he wishes to have included in his Statement which the National Disability Insurance Agency (Agency) has been unwilling to fund. The issue for determination is whether the additional supports which the applicant seeks should be included in a Statement approved by the Tribunal.
Introduction
The applicant is 26 years old and lives with his parents in the family home in which he grew up.
The applicant has been diagnosed with:
(a)Moderate autism;
(b)Obsessive compulsive disorder (OCD); and
(c)Depression.
As a result of these conditions the applicant’s cognitive development and communication skills are akin to that of an 8-10 year-old, as are his social skills. He has rigid thought processes and finds difficulty deviating from known processes. There are many activities of daily living which he is unable to perform independently. For example, the applicant is unable to choose appropriate clothing and put them on in the proper sequence without assistance. He can make a cup of tea and prepare a piece of toast independently but he is not able to plan or prepare a meal without close supervision from a family member or carer.[1] He sleeps in the same bedroom that he occupied growing up. He lives very much like a child living at home notwithstanding that he is a 26 year old man.
[1] Transcript of proceedings, 1 September 2021, 21; Transcript of proceedings, 2 September 2021, 134.
The applicant and his family are hoping that he can transition to more independent living arrangements. The family believes that this will assist his growth and development in the short term and will ensure that when his parents pass on, workable arrangements will be in place for his ongoing care.
To achieve this it has been decided to convert part of the applicant’s family home to an independent living area where the applicant can live with more limited supervision. An assistance dog has been purchased to assist with this transition.
The physical renovation of the home has begun and most of the structural changes to the house have been funded by the applicant’s family.
However, to complete the space and set it up as an independent living area for the applicant the following are required:
(d)Shower, basin, taps and toilet;
(e)Fittings, tiling, vanity, shower screen shaving cabinet, toilet roll holder, shower channel;
(f)Kitchen fixtures such as cabinets, benchtop and installation;
(g)Induction cooktop;
(h)Built-in oven;
(i)Microwave;
(j)Fridge;
(k)Dishwasher;
(l)Washing machine;
(m)Timber flooring.
The total cost of these items is $57,145.[2]
[2] Transcript of proceedings, 1 September 2021, 3.
While initially the applicant sought to have the costs of acquiring an assistance dog funded in his Statement, the claim has since been revised so that the applicant only seeks funding in for an amount of up to $7229.[3] This sum will be used to provide pet insurance, veterinary care, specialised dog food and weekly face to face training for both the applicant and the dog.
[3] Transcript of proceedings, 1 September 2021, 4; Letter from Applicant’s representative filed by Applicant on 25 August 2021, 2-3.
A statement of participant supports which did not include funding for these things was approved on 2 September 2019. That decision was affirmed on 1 May 2020. On 13 August 2021, following a remittal order made by the Tribunal under section 42D of the Administrative Appeals Tribunal Act 1975 (AAT Act), the Respondent issued an amended statement of participant supports which extended the life of the plan but did not include the contested supports. The Tribunal is now considering whether to approve a statement of participant supports with the further supports sought by the applicant.
A hearing was conducted in relation to the matter from 1 – 3 September 2021.
The evidence before the Tribunal consisted of the following:
(a)Applicant’s National Disability Insurance Scheme Plan approved on 13 August 2021 filed by the Respondent on 18 August 2021;
(b)Tribunal book containing volumes 1-3 consisting of 684 pages (excluding pages 504-505) and volume 4 consisting of 49 pages, filed by the Respondent in two parts on 19 and 25 August 2021 – these volumes included a range of evidence including building quotes, medical reports and witness statements;
(c)Guide Dogs WA Training Program FAQs consisting of 4 pages filed by the Respondent on 1 September 2021;
(d)Guide Dogs Australia document consisting of 15 pages filed on 1 September 2021; and
(e)Email of Ms O’Keeffe to Ms McAuley explaining why the dog earmarked for the applicant was unsuitable as a seeing eye dog. This was dated 3 September 2021 consisting of 3 pages filed by the Applicant on 3 September 2021.
In addition, the following people gave evidence at the hearing and were cross-examined:
(f)The Applicant’s mother;
(g)Dr Kween-Lian Kim, general practitioner;
(h)Mr Ben Johnson, Integra Service Dogs Australia;
(i)Dr Niah Wilson, psychologist;
(j)Ms Carey-Ann Doyle; and
(k)Ms Kelly Katavic, occupational therapist.
I am satisfied that all the witnesses who gave evidence at the hearing were honest witnesses who did their best to recount the facts as they knew them.
In the case of some of the treating professionals it became clear at the hearing that the level of knowledge and understanding of the applicant’s situation was more limited than the opinions expressed in their written reports might have suggested. In their oral evidence a clear and accurate picture of what they knew and the basis on which they recommended certain things was provided. However, in reaching my decision, the views of the various health professionals were not key to the conclusions which I have reached.
The most influential witness in this matter was the applicant’s mother. As I discuss further below, it is clear that she has a long track record of making informed and considered decisions about how to maximise her son’s independence and development.
In many cases it would be unsafe to put too much store on the views of close relatives who may be too close emotionally to a situation to provide dispassionate evidence about what supports are likely to make a positive contribution to a participant achieving the goals in their plan. In the present matter though, the applicant’s mother articulated the clearly and rationally why she believed that the changes to the applicant’s living situation will be likely to result in positive outcomes for the applicant.
In addition to the applicant’s mother, the two other important sources of evidence were Ms Doyle and Mr Ben Johnson.
Ms Doyle provided evidence about the effect that an independent living space combined with a companion dog had had on her autistic son’s independence and social development. Ms Doyle, described her son’s transition from living in the family home to living in an independent structure in their backyard and then ultimately a group house with the support of the NDIS.
Mr Ben Johnson runs Integra Service Dogs. His company sources assistance dogs which have been unsuccessful at being trained as guide dogs for the vision impaired. The dogs are then re-trained as assistance dogs, primarily for veterans who are struggling following discharge from the armed services.
Based on this evidence I make the findings of fact set out below. To the extent that those findings are controversial I have referenced the evidence on which I rely. More specific findings are made in the context of the detailed discussion where I resolve the issues raised by the respondent.
Findings on material questions of fact
As noted at the start of these reasons for decision, the applicant suffers from a range of conditions including autism.
The applicant remains significantly impaired by his condition but he has, as a result of his family’s concerted efforts, developed mentally, socially and physically, far more than was thought possible when he was first diagnosed. From the age of 2 and a half until he was 6 years old, the applicant underwent what is called intensive applied behaviour analysis (ABA). ABA is a method of teaching people with severe autism based on rote learning. It involves repetition (sometimes doing the same action in the same way 1000 times) with the carer physically manipulating the individual’s body to perform the task until they are able to perform the action unaided.
As a result of these intensive interventions the applicant developed many skills which it was initially thought he would be unable to acquire.
Throughout his childhood the applicant was placed in specialised ‘autism specific’ environments. In chronological order these were:
(a)An autism specific unit run by the ACT Government;
(b)Hughes Autism Unit during his pre-school years;
(c)The Autism Unit at Weetangera Primary School;
(d)The Learning Support Unit (Autism) at Kaleen High School;
(e)The Learning Support Unit at Belconnen High School; and
(f)A Disability Support Program at Dickson College.
Since finishing school, the applicant has participated in work experience with a local organisation which supports persons with intellectual disabilities and gained work experience with the following businesses:
(a)Belco Pets;
(b)The National Equestrian Centre; and
(c)The University of Canberra (cleaning the lizard enclosure and undertaking administrative tasks), which is a role he still performs.
The applicant however remains significantly affected by his disability.
Under his current NDIS plan, the applicant is provided with significant daily living and social support through the NDIS, but in the evenings it is his parents who prepare his meals and assist him to get to bed. In his mother’s assessment the applicant has not reached a stage of skills development where he can live independently in a group house and any care scenario will require some form of 24 hour care.
In addition to some limitations on his cognitive and communication skills, the applicant, like many people with autism also uses repetitive movements or unusual movements to help manage his emotions. This is known as ‘stimming’. The applicant’s form of stimming as an adult primarily involves pacing. He does this while listening to music especially in the evening.
He remains significantly dependent on his mother and father for food preparation, dressing and undressing in the morning and at night and he relies on his family and carers to accompany him to activities outside of the house. His level of social naivety makes it risky to for him to move around in the community unassisted.
The hope however is that the applicant will, in the right environment, continue to develop skills and develop capacities that will make him more independent. Having seen other young adults with autism develop greater independent living skills by being provided with a less supervised environment, the applicant’s parents decided to pursue the idea of an independent living space for the applicant as a means of helping him to develop greater skills.
In particular the family has observed the progress made by another young man with autism Jake Doyle. Jake’s mother describes him as having moderately severe autism.[4] He currently has a service dog ‘Buddy’ and currently lives in a house alone provided by the ACT Government with 24 hour care provided through the NDIS.[5]
[4] Transcript of proceedings, 2 September 2021, 136.
[5] Transcript of proceedings, 2 September 2021, 135-6.
Prior to moving to the group house arrangement Jake lived with in a semi-independent unit on the same block of land as the family home. The unit was built for him by his father who was a trained carpenter. Jake moved there as an adult. Jake stayed there with Buddy for a period of five and a half years. The experience of Jake’s family was that the combination of the service dog and the semi-independent living unit significantly enhanced Jake’s independence. With the benefit of Buddy he was able to stay at home by himself for several hours at a time. He learned to do his own washing and help with household chores. He could go out to the shops confidently and stay in his flat during thunderstorms or when there were sudden loud noises. He was able to speak to strangers and was able to do his own food shopping.[6]
[6] Exhibit 2, 163-5.
It is in this context that modifications to the family home have been made. Work has commenced but has not been completed.
When the modifications are complete, the roofline of the house will not change but the modifications mean that the applicant will have a self-contained space where he can live separately from his parents but in sufficiently close proximity to them that they can provide assistance if that becomes necessary. The acquisition of an assistance dog is seen as complementary to the independent living space. The animal is expected to give the applicant additional assistance that will make it possible for him to stay in his own part of the house with less support and supervision from others.
The applicant’s family have already borne a significant proportion of the costs of creating the independent living space. However, they seek to have parts of the fit-out funded in the applicant’s current plan.
Issues
Under the National Disability Insurance Scheme Act 2013 (NDIS Act) supports are included in a participant’s plan when the CEO decides to approve a statement of participant supports pursuant to section 33(2) which includes those supports. The approved statement must specify the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme. The respondent contends that items listed at paragraphs ‎8 and ‎10 above are not reasonable and necessary supports and therefore they should not be included in any statement approved by the Tribunal.
To properly consider this question, there are three issues which present for determination.
The first is how the home modification supports should be characterised for the purposes of assessing whether they are reasonable and necessary supports. The respondent urges an item by item approach. This means that the inquiry on which the Tribunal is to embark is whether, for example, the microwave to be purchased for inclusion in the new independent living area of the house is a reasonable and necessary support which meets all of the statutory criteria for reaching that conclusion. The respondent submits that a microwave is an everyday item and not specific to the applicant’s autism and therefore cannot be included as a reasonable and necessary support. The applicant on the other hand asks the Tribunal to take a broader view. The applicant contends that it is preferable to characterise the support sought as ‘a home modification to provide an independent living space’.
The nature of the assessment which I am obliged to undertake will be different depending on whose framing of the support I accept.
The second issue the Tribunal must consider is whether the home modifications and independent living space (or the constituent items within that concept) meet the statutory requirements (including those in section 34) in relation to the funding of each support. In considering these questions it is necessary to consider whether any exclusions apply under the NDIS Act or the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (SupportRules), including whether the applicant is seeking funding for day-to-day living costs.
The final issue which the Tribunal must determine is whether an assistance dog for the applicant should be specified as a reasonable and necessary support to be funded in the applicant’s statement of participant supports. Again, questions of whether the requirements of section 34 and the Support Rules are met need to be considered.
Before turning to the specific issues, it is appropriate to do two things. First, undertake a close examination of the framework of the scheme and attempt to describe the nature of the statutory task which the Tribunal is being called upon to perform. Second, to record more detailed findings of fact which underpin the conclusions I have reached.
The statutory task
The decision which the Tribunal is called upon to make is most briefly described as a decision to approve a statement of participant supports (Statement) in accordance with section 33(2) of the NDIS Act. The Statement forms part of the applicant’s plan, which is a document which must be prepared once a person becomes a participant in the NDIS.
That brief description however washes out a significant amount of the complexity which arises as a consequence of the drafting of the statute. Before elaborating on the issues further, it is worth setting out all of the provisions of the Act and the Rules which potentially impact on the Tribunal’s decision. There is no shortage of them.
Section 3 sets out the objects of the NDIS Act:
Section 3
(1) The objects of this Act are to:
(a) in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
(b) provide for the National Disability Insurance Scheme in Australia; and
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; 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
(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
(h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability; and
(i) in conjunction with other laws, give effect to certain obligations that Australia has as a party to:
(i) the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23); and
(ii) the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5); and
(iii) the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4); and
(iv) the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9); and
(v) the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40).

Section 4 sets out what are described as General principles guiding actions under this Act. Section 4(11) of the NDIS Act provides:
Reasonable and necessary supports for people with disability should:
(a) support people with disability to pursue their goals and maximise their independence; and
(b) support people with disability to live independently and to be included in the community as fully participating citizens; and
(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
This is relevant when considering whether to approve a statement of participant supports.
Section 4(17) is also significant. It provides:
(17) It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:
(a) the progressive implementation of the National Disability Insurance Scheme; and
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme.
Section 31 provides:
Principles relating to plans
The preparation, review and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable:
(a) be individualised; and
(b) be directed by the participant; and
(c) where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(d) where possible, strengthen and build capacity of families and carers to support participants who are children; and
(da) if the participant and the participant’s carers agree—strengthen and build the capacity of families and carers to support the participant in adult life; and
(e) consider the availability to the participant of informal support and other support services generally available to any person in the community; and
(f) support communities to respond to the individual goals and needs of participants; and
(g) be underpinned by the right of the participant to exercise control over his or her own life; and
(h) advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i) maximise the choice and independence of the participant; and
(j) facilitate tailored and flexible responses to the individual goals and needs of the participant; and
(k) provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.
Section 33 provides:
(2) A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a) …
(b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(3) The supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise.
(4) …
(5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a) have regard to the participant’s statement of goals and aspirations; and
(b) have regard to relevant assessments conducted in relation to the participant; and
(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant.
Section 34 provides:
(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:
(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 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:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(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)(a) to (f).
Section 99 sets out the decisions which are reviewable decisions for the purposes of the NDIS Act. In this case the relevant decision is identified at s 99(d) being:
A decision under subsection 33(2) to approve the statement of participant supports in the plan.
Reviewable decisions can be reviewed within the Agency (s 100) and applications can be made to the Tribunal in respect of any decision reviewed under s 100 (s 103).
In the Support Rules, a number of rules are relevant to this decision.
Rule 3.1 provides as follows:
In deciding whether 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, the CEO is to consider the following matters:
(a)     whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)     whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(c)     whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d)     for supports that involve the provision of equipment or modifications:
(i)      the comparative cost of purchasing or leasing the equipment or modifications; and
(ii)     whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e)     whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f)      whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
Rule 3.2 provides:
In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a)     published and refereed literature and any consensus of expert opinion;
(b)     the lived experience of the participant or their carers; or
(c)     anything the Agency has learnt through delivery of the NDIS.
Rule 3.3 provides:
In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
Rule 3.4 relevantly provides:
In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:
(a)     for a participant who is a child:
(i)      that it is normal for parents to provide substantial care and support for children; and
(ii)     whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age; and
(iii)     the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and
(iv)    whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing;
(b)     for other participants:
(i)      the extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community; and
(ii)     the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:
(A)     the age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and
(B)     the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and
(C)    the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and
(iii)     the extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes;
(c)     for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.
Rule 3.5 provides:
Schedule 1 sets out matters for the CEO to have regard to in considering whether supports are most appropriately funded or provided through the NDIS, rather than through other service systems (service systems is defined in paragraph 6.4).
The matters to have regard to are set out under the following headings in the Schedule:
(a)     Health (excluding mental health);
(b)     Mental health;
(c)     Child protection and family support;
(d)     Early childhood development;
(e)     School education;
(f)      Higher education and vocational education and training;
(g)     Employment;
(h)     Housing and community infrastructure;
(i)      Transport;
(j)      Justice.
Schedule 1 is attached as an annexure to this decision.
Of particular relevance are the following:
7.4 The NDIS will be responsible for supports related to a person’s ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment.
…
7.6 The NDIS will be responsible for supports that are not clinical in nature and that focus on a person’s functional ability, including supports that enable a person with a mental illness or psychiatric condition to undertake activities of daily living and participate in the community and social and economic life.
…
7.17 The NDIS will be responsible for:
(a)supports related to daily living that a person would require irrespective of whether they are working or looking for work (including personal care and support and transport to and from work);
…
7.19 The NDIS will be responsible for:
(a)supports to assist a person with a disability to live independently in the community, including by building their capacity to maintain a tenancy, and support for appropriate behaviour management; and
(b) home modifications for accessibility for a person in private dwellings; and
(c)home modifications for accessibility for a person in legacy public and community housing dwellings on a case-by-case basis but not to the extent that it would compromise the responsibility of housing authorities to develop, maintain and refurbish stock that meets the needs of people with disability; and
(d)user costs of capital in some situations where a person requires an integrated housing and support model and the cost of the accommodation component exceeds a reasonable contribution from individuals.
7.20 The NDIS will not be responsible for:
(a)the provision of accommodation for people in need of housing assistance, including routine tenancy support and ensuring that appropriate and accessible housing is provided for people with disability;
Rule 3.7 provides:
Where particular supports are set out in the Schedule as being appropriately funded or provided through the NDIS, the CEO must still be satisfied of a number of other matters in order for the supports to be funded or provided (see paragraphs 2.3(a)-(e) of these Rules and paragraphs 34(a)-(e) of the Act).
Rule 4.1 provides:
When deciding whether or not to approve a statement of participant supports under section 33 of the Act, the CEO is to:
(a)Identify the participant’s goals, aspirations, strengths, capacity, circumstances and context; and
(b)Assess activity limitations, participation restrictions and support needs arising from a participant’s disability; and
(c)Assess risks and safeguards in relation to the participant; and
(d)Relate support needs to the participant’s statement of goals and aspirations.
Rule 5.1 provides:
A support will not be provided or funded under the NDIS if:
(a)It is likely to cause harm to the participant or pose a risk to others; or
(b)It is not related to the participant’s disability; or
(c)It duplicates other supports delivered under alternative funding through the NDIS; or
(d)It 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 day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports);
(a)Additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b)Costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
There are also rules contained in the National Disability Insurance Scheme (Plan Management) Rules 2013 (Plan Management Rules) which are relevant to deciding how supports are to be described within a statement of participant supports. These are:
6.1     A participant’s statement of participant supports (referred to as the statement in this Part) specifies, among other things:
(a)     the general supports (if any) that will be provided to, or in relation to, the participant; and
(b)     the reasonable and necessary supports (if any) that will be funded under the NDIS.
6.2     Some supports in the statement may be described generally, whether by reference to a specified purpose or otherwise. For such supports, the participant will have a high degree of flexibility over the implementation of the supports.
6.3     In contrast, some supports may be specifically identified in the statement. Such supports will have to be purchased or provided in the way described in the statement.
Description of a support in a participant’s statement
6.3A Paragraphs 6.4 to 6.7 and 6.9 set out rules that apply to the description of a support in a participant’s statement.
Whether supports should be specifically identified or described generally
6.4     When deciding whether the support should be described generally or more specifically in the participant’s statement, the CEO is to have regard to the following:
(a)     the cost of the support;
(b)     any expected return or saving in costs from providing the support;
(c)     any risks associated with the supply of the support such as the need for the support to conform to State or Territory laws;
(d)     whether achievement of other goals in the plan or the effectiveness of other supports is contingent on a particular support being procured or used;
(e)     whether the participant’s disability requires a specialist, evidence-informed support provided by a qualified person or a particular delivery mode;
(f)      whether the participant accessed the NDIS by satisfying the early intervention requirements.
Operational Guidelines
To assist with consistency in decision making the respondent has also prepared a number of Operational Guidelines.
The guidelines to which I have had regard are:
(a)Creating Your Plan dated 1 April 2021;
(b)Reasonable and Necessary Supports dated 1 April 2021;
(c)Is the support most appropriately funded or provided through the NDIS, along with its appendix.
I have also considered the Including Specific Types of Support in Plans Operational Guideline – Home Modifications. For the reasons explained below I do not consider that it applies to the circumstances in the present case.
The relevant case law
The Federal Court has given consideration to the statutory task of approving statements.
In National Disability Insurance Agency v McGarrigle [2017] FCAFC 132 Justice Mortimer appeared to find that once it was decided that a support was a reasonable and necessary support, then the scheme requires that it will be funded. On appeal, the Full Court determined that Justice Mortimer had not reached that conclusion and that she did not depart from the statutory language of section 33. Accepting that at face value it is appropriate to return to the statutory words rather than consider any gloss that has been put on them.
The Full Court also considered issues relevant to section 33 in the matter of National Disability Insurance Agency v WRMF [2020] FCAFC 79. In its judgment, the Court resisted determining what could be regarded as the outer limits of the phrase ‘reasonable and necessary supports’, but made a number of observations about the statute. Of most relevance are the following:
(a)In the phrase ‘reasonable and necessary supports’ the Parliament has chosen to use a composite phrase rather than to stipulate two distinct requirements ([149]);
(b)Determining the contents of a participant’s plan and what are reasonable and necessary supports is a fact-intensive exercise. The exercise is highly individualised and there will be an area of decisional freedom ([152]);
(c)The question of whether a support is a ‘reasonable and necessary support’ is to be approached by examining the particular circumstances of the applicant ([157]);
(d)There may be a statutory discretion located in section 33(2) but resolution of that question should await a case where it has been properly raised before the Tribunal ([167]);
(e)The statutory word ‘support’ includes within it the concept of assistance but other synonyms are also likely to be apt including ‘care’ ([172]);
(f)There is a connection between the description in section 4(11) of what reasonable and necessary supports should do and the reaching of satisfaction of the matters specified in section 34, and a connection with some of the objects in section 3 ([180]);
(g)The matters in section 34 are not merely mandatory considerations but are in the nature of criteria, which the decision makers must be satisfied of on the material before it;
(h)Section 34 does not define the phrase ‘reasonable and necessary supports’ ([206]);
(i)Section 34(1)(b) does not require the specific identification of an activity which a support would assist a participant to undertake ([215]), and, it can be inferred that indirect assistance in social participation can be sufficient to meet that criterion.
What task has the statute set for the Tribunal?

In light of this complex and detailed framework it is necessary to attempt to bring some precision to the Tribunal’s decision-making task. The task is not as simple as asking whether on the facts found a statutory threshold for including items in the Statement has been met. There is a discretion of some kind lurking in the decision-making framework[7], but it is difficult to define. It has resisted precise definition.[8] Rather than attempting in the context of this decision to define precisely the nature of the discretion to exclude a support from inclusion in the statement, or limit the funding of it, it is sufficient to note that the respondent’s Operational Guidelines avert only very obliquely to the possibility of a discretion to exclude reasonable and necessary supports which meet the criteria in the legislation and rules. The Operational Guidelines seem to implicitly accept that it would be in the rarest of cases that a support would be found to meet all the statutory criteria and comply with the rules but would then not be included in the Statement. That approach is reflected in the position which the respondent has taken in these proceedings. The respondent’s contention is that the supports sought do not meet the statutory criteria not that they should be excluded on discretionary grounds. Accordingly, I am proceeding on the basis that if I reject the respondent’s argument that funding of the claimed supports is excluded, then any residual discretionary matters would not change the conclusion that the claimed supports should be included in the statement.
Is the Tribunal’s task simply to approve a pre-prepared Statement?
[7] The concept that the CEO approves a statement which includes those reasonable and necessary supports that will be funded seems to carry with it an implication that there can be reasonable and necessary supports that will not be funded.
[8] See National Disability Insurance Agency v WRMF [2020] FCAFC 79.
The next point to note is that the Tribunal’s task is not as straightforward as a literal reading of section 99(d) would suggest. That provision provides that the decision the subject of review is the reviewable decision, made under section 33(2), ‘to approve the statement of participant supports in a participant’s plan’. This could suggest that all that is required of the Tribunal on review is to look at the statement which was approved by the CEO originally and decide whether or not to approve it. I am satisfied that the Tribunal’s task is not so straightforward.
It is important to note that section 33 confers on the CEO of the Agency a role which can be split into two tasks:
(a)To prepare with a participant a statement of participant supports; and
(b)To approve the statement so prepared.
On its face, the review provision indicates that it is only the second of these that is the subject of review. If this reading were accepted, it reduces both the internal review and the Tribunal’s review, to the simple binary task of approving or not approving the statement which already exists.
However, if that were the extent of the decision-making task on review it would rob the review process of any capacity to deliver to applicant’s an improved outcome. They would be stuck with the content of the statement that was initially prepared and the best result they could hope for is that the statement which they have sought review of is not approved. The effect of a decision not to approve would be to leave the participant without a plan and without funding. The review process would function as an obstruction to the implementation of meaningful plans and lack the capacity to deliver positive change (or indeed any change) to the content of the applicant’s statement through the course of review.
Having regard to the statutory context in which the review rights are set out, I am satisfied that this is not what Parliament intended. While it involves a strained reading of the text, I am satisfied a more meaningful review consonant with the statutory purpose is available if section 99(d) is read as providing for the review of the CEO’s entire task under section 33(2) rather than just the final step of approving the statement. In essence this involves reading section 99(d) as a shorthand description of the entire section 33(2) task rather than as specifically identifying the approval task only as the subject of review. I am satisfied that on internal review and in this Tribunal the statement preparation and approval should be treated as a single decision-making task which can be undertaken de novo by the Tribunal in performing its review function.
This approach to review puts the question of what is to be included in the applicant’s Statement squarely within the Tribunal’s jurisdiction. The question then is, in what circumstances and by reference to what criteria should a decision be made that a support will be included in a statement and therefore funded.
When should a support be included in a Statemen as reasonable and necessary?
In answering this question some things can be stated with certainty.
First, there is a procedural obligation on the CEO (and the Tribunal standing in his shoes) to prepare the Statement ‘with the participant’. The Tribunal’s hearing processes accommodate this requirement. This implies input from the participant but ultimately it is the CEO or the Tribunal which makes the final decision.
Second, only ‘reasonable and necessary supports’ can be specified for funding. So much is clear from the words of section 33(2)(b). This however has not been the focus of direct contention in this matter.
Third, the reasonable and necessary supports which are specified in the Statement will be funded. This however implies that there can be reasonable and necessary supports which are available to be specified but which the decision maker can exclude from specification and funding. This is the point at which the decision-maker must exercise discretion. In this matter there has been no suggestion that any supports should be excluded as a matter of discretion.
Fourth, in determining what supports should be specified (and form part of the statement ultimately approved) the decision maker must:
(a)apply the principles outlined in section 31;
(b)have regard to the matters listed in paragraphs 33(5)(a), (b), (e) and (f);
(c)be satisfied of the matters in section 34 in relation to the funding of the support;
(d)apply the Scheme rules.
Other issues which arise are less capable of clear resolution.
What is a reasonable and necessary support?
As noted above only reasonable and necessary supports can be specified. Given how central this concept is to the funding which flows to participants, it is more than surprising that Parliament opted not to define the expression directly.
Magnifying the difficulties created by the legislature’s coyness in this regard, the Agency has decided not to deal directly with the concept in its Operational Guidelines. Instead, the Agency has adopted an approach whereby the Agency considers whether a support meets what are called in the Operational Guidelines ‘funding criteria’. To meet the funding criteria a support must meet both of the following criteria:
(a)It must not be a type of support the law says the Agency cannot fund or provide (for example by reason of Support Rule 5.1(a)); and
(b)It must meet the reasonable and necessary criteria which are the matters set out in section 34(1).
The Operational Guidelines do not grapple with the scope of the concept of ‘reasonable and necessary supports’. Indeed the Guidelines ignore the possibility that the phrase ‘reasonable and necessary supports’ confines the supports to a class which is more narrow than those supports which meet the thresholds specified in section 34. However, it seems likely that in many cases, attempting to define precisely what is a ‘reasonable and necessary support’ is not necessary or helpful and it is better to direct attention to the matters in section 34. In this case, given the way the parties proceeded, that is the appropriate approach.
The Agency’s case depends entirely on the applicant failing to meet the requirements of section 34 or being caught by an exclusion in the NDIS Act and the Support Rules. As noted previously, no contention has been advanced suggesting that the Tribunal should exclude the supports sought in this case by exercising a discretion, or on the basis that it does not fall within the expression ‘reasonable and necessary supports’ in some more general way.[9]
[9] The respondent’s Operational Guideline on Reasonable and Necessary Supports hints at this discretion when it describes the final step of including a reasonable and necessary support in a plan. The guideline notes ‘once we’ve identified the supports and decided they meet the NDIS funding criteria, we can include the description and funding for the support in your plan’ (emphasis added). The use of the word ‘can’ rather than ‘must’ is implicit recognition in the guideline that there is a discretion. Not much is said in any of the operational guidelines about how decision makers should approach this discretion, and this seems to be the extent of the recognition of its existence.
While it is important that the Tribunal understands the statutory function that it is performing, in the present case the precise scope of the Tribunal’s powers and discretions are not central to disposing of the application. The respondent’s contention is that the supports which the applicant seeks cannot be included in the Statement as they are excluded by law or fail to meet the thresholds specified in section 34. It is on this basis that I will deal with the matter.
ISSUES
With this framework in mind, the discussion can turn to the three issues identified at paragraphs 40, 42 and 43 and above:
(a)How should the home modification supports be characterised?
(b)Do these supports meet the funding criteria?
(c)Does the assistance animal meet the funding criteria?
How should the supports requested be characterised?
How the supports are characterised is an important question for the purposes of determining whether they meet the thresholds in section 34. If characterised item by item, it is possible that none of the supports sought meet the thresholds. If characterised more broadly and holistically the result may be different. The question is, how should the Tribunal approach the question of describing and assessing a support?
The term ‘support’ is not specifically defined in the NDIS Act. However, it has been the subject of consideration by the Federal Court in McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [87]-[88]. The court concluded that, viewed in context, the term ‘support’ should be given a broad meaning to include services or activities or any other means that assists a person with disability in a way that is consistent with the principles set out in section 4 of the NDIS Act. To use the words of Justice Mortimer, the term support is ‘a practical description of the means by which a person with disability is assisted’. However, her Honour makes it clear that the concept of ‘funding for a support’ is distinct from the concept of ‘support’.
While this provides a starting point for thinking about the concept of ‘support’ it doesn’t provide a simple answer to the question of how narrowly or broadly a support should be conceptualised in circumstances where its funding can be broken down into specific components.
Section 33 itself provides for flexibility in this regard. Subsection (3) provides:
The supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise.
The Plan Management Rules govern how this discretion should be exercised:
6.4     When deciding whether the support should be described generally or more specifically in the participant’s statement, the CEO is to have regard to the following:
(a)     the cost of the support;
(b)     any expected return or saving in costs from providing the support;
(c)     any risks associated with the supply of the support such as the need for the support to conform to State or Territory laws;
(d)     whether achievement of other goals in the plan or the effectiveness of other supports is contingent on a particular support being procured or used;
(e)     whether the participant’s disability requires a specialist, evidence-informed support provided by a qualified person or a particular delivery mode;
(f)      whether the participant accessed the NDIS by satisfying the early intervention requirements.
I have had regard to each of those matters, none of which provide much assistance in deciding how generally or specifically the supports should be described in this case. The answer to how the descriptive discretion should be exercised lies not in the specific matters identified in the Plan Management Rules, but in a consideration of the discretion more generally.
Noting that the concept of ‘support’ is broad and flexible, and we are seeking to describe the means by which a person with a disability is assisted, in my assessment it is not appropriate at the stage of determining whether a support meets the funding criteria in section 34, to break the support down into component parts in a way that causes one to lose sight of the harmonious purpose to which all of the items are directed.
In providing a microwave, or a fridge or a cooktop, the applicant is not being given a means to store or cook food. The purpose in providing those things is to provide the applicant with a living space that will allow him to develop skills and live more independently. The items viewed individually give no insight into the support that is to be provided. It is only by stepping back that one is able to see how they work together and understand how the applicant will be assisted (to use the words of Justice Mortimer). Consequently, in this case it is this broader conception of the support which should be considered when deciding whether what is proposed meets the funding criteria in section 34 or falls foul of any statutory prohibition. I am satisfied that it is appropriate to characterise the support in this case as an independent living space rather than as a series of individual items. The NDIS Act specifically allows supports to be described in a general way as an alternative to specific identification of particular items.[10] Accordingly there does not appear to be any basis for the respondent’s submission that ‘it is necessary for the Tribunal to look carefully at and consider the actual items sought to be funded rather than considering a generalised concept’.[11]
Do the home modifications and assistance animal supports meet the funding criteria?[12]
[10] NDIS Act s 33(3).
[11] See Exhibit 2, 463.
[12] I am using this expression as a shorthand concept which cover all of the section 34 criteria and the exclusions in the NDIS Act and Rules.
The respondent has only put certain matters in issue. In its SOFIC it reserved its right to expand the range of issues but it failed to contest any additional matters in closing submissions concerning the home modifications except to re-iterate its objection to a general characterisation of the support as ‘home modifications’ rather than an item by item assessment.
In respect of the home modifications, the following matters were put in issue:
(a)There is no evidence to support the contention that the extension sought will assist with the applicant’s social and economic participation;
(b)The support is not value for money;
(c)There is insufficient evidence to establish that the support will be effective and beneficial over and above what has already been provided;
(d)It is reasonable to expect the family to pay for the modifications because the applicant’s parents will benefit from an extension to the property;
(e)The support is not most appropriately funded through the NDIS;
(f)The funding is not consistent with the Rules because:
(i)It is not related to the participant’s disability;
(ii)It relates to day to day living costs.
In relation to the assistance dog the respondent contends:
(a)There is no evidence that the assistance dog will assist the applicant to pursue his goals and objectives (s 34(1)(a));
(b)The evidence does not establish that the assistance dog will assist the applicant to undertake activities (s 34(1)(b));
(c)The evidence does not demonstrate that the proposed assistance dog is value for money (s 34(1)(c));
(d)The Tribunal could not conclude that the assistance dog will be or is likely to be effective and beneficial to the applicant having regard to current good practice;
(e)It is reasonable to expect the family to provide the applicant with companionship or a pet (s 34(1)(e));
(f)It poses a risk of harm to the participant so breaches Support Rule 5(1)(a)
(g)The support duplicates other supports which are provided already for community participation.
Home Modifications
Before considering this support, it is necessary to deal with one preliminary argument.
The respondent contends that the applicant cannot pray in aid of its arguments (which it did in closing submissions), the Operational Guidelines in relation to Home Modifications (Home Modification Guidelines) which have been issued by the Agency. The applicant relied on parts of these guidelines as being supportive of including home modifications in the applicant’s Statement. In particular the applicant noted the section which provided:
Generally, the NDIA will fund reasonable and necessary home modifications…when the participant’s primary residence, in its current condition, has a significant and adverse impact on the sustainability of current living and care arrangements
The respondent contends that because of how the phrase ‘Home modifications’ is framed in the Home Modification Guidelines, the guidelines are not applicable to the modifications proposed in the present case. In relation to that particular guideline I accept that submission. On the face of the Guideline the term ‘Home modifications’ is limited to ‘…changes to the structure, layout or fittings of the participant’s home that are required to enable the participant to safely access and move around frequently used areas in their home as a result of their disability.’ The modifications the subject of the present matter are not being made to improve the applicant’s safety of movement but to develop his independence. Accordingly, the Home Modification Guidelines have no application in the present case.
However, acceptance of that proposition does not significantly alter the analysis in this matter. Although the guideline does not apply in this case, that does not mean that any other kind of home modification which meets the requirements set down in the NDIS Act is excluded. It merely means that the Tribunal and any internal decision maker does not derive any benefit from the guideline in its current form. The respondent does not suggest that the guideline has an excluding effect in relation to other kinds of home modification. I am satisfied that the guideline has nothing relevant to say about the home modification that is currently the subject of scrutiny.
Assisting with social and economic participation
Turning to the respondent’s contentions as to why the supports do not meet the funding criteria, the first matter in issue is whether the requirements of section 34(1)(b) are met. The respondent contends they are not because the home modifications will not assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation.
The first point to note is that it is not necessary to establish that the support will assist the applicant to undertake a particular activity. There is nothing in section 34(1)(b) requiring the specific identification of an activity which a support would assist a participant to undertake.[13] It is sufficient that the support will assist the applicant to undertake activities in a more general sense. In this case, there is evidence that a change to a more independent living arrangement will provide the applicant with incentives to undertake activities which are currently undertaken for him by his parents including cooking, choosing clothes and laundry.[14]
[13] National Disability Insurance Agency v WRMF [2020] FCAFC 70.
[14] Transcript of proceedings, 3 September 2021, 163.

The expectation is that with greater independence (and the assistance of an assistance animal) the range of activities which the applicant can perform independently will increase. The applicant relied upon the experience of the Doyle family to support the proposition that the supports proposed would assist him to undertake a wider range of activities resulting in increased social and economic participation. The experience of the Doyle family, has been that a transition to more independent living, combined with an assistance animal, resulted in their son shifting from being unable to stay at home on his own, to being able to do his own washing and assist with other household chores. Ms Doyle’s son developed to a point where he lives independently in a house with the support of carers supplied by the NDIS
The respondent’s view is that the Doyle’s experience should not be treated as a close analogy. Everyone’s experience is different and autism expresses itself differently in each case. I accept that submission. However, given that the applicant’s mother has long history of commitment to her son’s skill development,[15] and has a track record of success in identifying what he needs and how better outcomes can be achieved for the applicant, I am willing to put significant weight on her assessment that a more independent living arrangement within the home will result in skill development for the applicant which will enhance both his social and economic participation. I do however accept the respondent’s submission that hopes that the independent living space will facilitate interactions with friends and the potential for a romantic relationship are unlikely to be outcomes of the new arrangement. But, I am satisfied that the range of daily living skills that the applicant has and his ability to cope unsupervised outside the home are likely to increase as a consequence of the creation of an independent living space within the applicant’s parent’s home. I am therefore satisfied that section 34(1)(b) is satisfied.
Value for money
[15] See paragraphs 34-53 of her statement setting out her history of skills development with her son.
The Tribunal must be satisfied that the funding of the home modifications 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.
I am satisfied that it does represent value for money.
The funding which the applicant seeks from the respondent in relation to the home modifications is modest – a one off cost of $57,145.
The benefit that is achieved is that the applicant transitions to a more independent living arrangement and the long-term viability of the care arrangements with the applicant’s parents are buttressed.
To obtain similar benefits, in terms of improving the applicant’s independence while still ensuring his safety, away from the family home, would require a much more expensive alternative in the form of 24 hour supervision in a fully independent housing facility. The annual costs of such an arrangement would run into many hundreds of thousands of dollars each year. Instead, if the home modifications are funded, the respondent will not have to fund fully supervised care of the applicant for the foreseeable future.
The respondent contends that this is not the appropriate basis for considering whether the supports represent value for money. In its closing submissions, the respondent submitted that
In terms of value for money, the – it appears the applicant’s inviting the tribunal to make a comparison between the fit out of this unit and 24 hour, 7 day a week care in supported independent living or with formal supports in place. And in my submission, that is an inappropriate comparison to make and the evidence does not support that comparison.
In my submission, the basis of the evidence in Ms Katavic’s report where she said he needs 24 hour, 7 day a week, one on one support is highly deficient. She wasn’t assessing him, Mr MMBX, to determine whether or not he needed one on one care. She also didn’t undertake the – a quantitative analysis of whether or not those were actually his needs.
And so, in my submission, it’s somewhat (indistinct) to say he needs this, and this is how much it will cost, and that’s so much more expensive than if you actually paid for this fit out. It’s like comparing chalk and cheese and there’s no factual basis for the claim that he does require that 24/7 assistance.[16]
[16] Transcript of proceedings, 3 September 2021, 195-6.
I do not accept that submission for two reasons. First, it proceeds on the basis that preserving the status quo is the goal of a support. Second it ignores the other sources of evidence that make it clear that the applicant needs 24 hour supervision and support.
In relation to the first issue, it is important to keep in mind that the supports that the applicant should be given in this Statement are those that assist him to pursue his goals. Greater independence is one of his stated goals. Consequently, the status quo is not the starting point for considering what supports should be provided. If greater independence is the goal, then supports which move the applicant away from full-time care in the family home, with extensive parental supervision need to be considered. It is the assessment of the applicant’s mother that the applicant will not develop further independent daily living skills under current arrangements and I accept that assessment.
Consequently, consideration needs to be given to what changes can be made to keep the applicant developing a higher degree of independence. Reducing his dependence on his parents is one of the changes which needs to be made.
The question then is how can this be done? Removing the applicant from the family home and setting up a wholly independent arrangement is one way that this could be achieved. A less extreme alternative is the current proposal.
If the first option were adopted, it is clear from the descriptions of the applicant’s disabilities, in particular his inability to organise his activities of daily living, including putting himself to bed at night and getting dressed in the morning, that extensive supervision will be required if his parents aren’t available to provide overnight support. A fully independent option is going to be expensive and it is likely to require paid care on a 24/7 basis.
In these circumstances I am satisfied that the appropriate ‘alternative support’ against which to test whether what is proposed is value for money is 24 hour care in a group setting.
Fully paid 24 hour care is likely to cost hundreds of thousands of dollars annually.[17] What is being proposed in this case relieves the scheme of the need to provide that level of care. If the applicant is to be supported to greater levels of independence then in my assessment, the comparatively small contribution proposed gives the applicant greater independence without enormous cost. I am satisfied it represents value for money.
The support will be effective and beneficial
[17] See Exhibit 2 (Report of Kelly Katavic, Occupational Therapist), 39.
Based on the evidence of the applicant’s mother (who has been a consistently good judge of what will produce positive outcomes for her son) and Ms Doyle, who has provided evidence concerning the effectiveness of providing an independent living space for an adult with autism, I am satisfied that the support proposed will be effective in helping the applicant achieve the goals he has specified in his plan. In particular the applicant has a goal ‘to become more independent in looking after [himself]’.
The evidence establishes that with the current arrangements the applicant is unlikely to progress with this aspect of his goals.[18] The evidence of the applicant’s mother was that without a change in arrangements the incentives for the applicant to learn skills like cooking and doing his laundry are low.
[18] Transcript of proceedings, 1 September 2021, 39-40; Exhibit 2, 25-26.
Further, the applicant’s parents have, as it were, put their money where their mouth is. They have funded the vast bulk of the changes to the living arrangements and are clearly of the view that the change will be effective and beneficial in ways that the present arrangements are not.
The family will benefit from extension so it is reasonable to expect them to pay
The unchallenged evidence of the applicant’s mother was that because there were no changes to the roofline of the house, and the changes to the house resulted in an odd combination of rooms, there was no reason to expect that the modifications to the house would enhance its value. I accept that evidence.
As the amount of the funding in the Statement is quite modest relative to the overall cost of the build, I am satisfied that the applicant’s family are contributing an amount that it is reasonable to expect the family to contribute. I do not consider that it is reasonable to expect the family to bear 100% of the cost of putting in place arrangements for the applicant which enhance his independence. The funding sought to be included in the Statement is appropriate in the circumstances.
If I were satisfied that the modification to the house was value enhancing I would have considered a contribution to the cost of capital more appropriate than a direct contribution to the cost of setting up the independent living space.
The support is most appropriately funded through the NDIS.
The respondent’s own operational guidelines recognise that there are circumstances where home modifications are most appropriately funded through the NDIS. This is determined on a case by case basis.[19]
[19] Exhibit 2 (Planning Operational Guideline Appendix 1), 611.
I am satisfied that this is one of the rare cases where a home modification is most appropriately funded through the NDIS. As noted previously the goal is to increase the applicant’s independence. The most radical way of achieving this would be to obtain public housing for the applicant from the relevant Territory agency responsible and combine the housing option with the NDIA providing 24 hour care to facilitate independent living. This arrangement would be extremely expensive for both the Territory and Federal Government and is likely to be a confronting change in lifestyle for the applicant.
The support proposed relieves the Territory government of the need to provide independent housing for the applicant and relieves the NDIA of the need to provide 24 hour supervision. At the same time, it enhances the applicant’s independence. Consequently, the home modification involves a win for all levels of government on the cost side and a win for the applicant in that it results in greater continuity of care and continuity of living arrangements. In these circumstances, while it compromises to some degree the usual demarcation between levels of government in relation to housing, that compromise is the kind of flexible and adaptable solution which the NDIA should provide if it is to deliver on the scheme envisaged by Parliament which involves innovation and quality in the provision of supports (see section 4(15)).
Not related to the applicant’s disability
The respondent claims that the support proposed is not related to the participant’s disability. This argument depends on acceptance of the proposition that each component of the support must be assessed separately and none of the supports are autism specific.
For the reasons explained at [94] – [101] above I have rejected that approach.
Consequently, the question is whether the home modifications to be funded are related to the applicant’s disability. In my assessment they are.
The proposed home modification provide for a level of independence and a level of family support and supervision that is specifically designed to cope with the demands of supporting a grown man with autism, OCD and depression. If the applicant did not have the disabilities which he does, such a space would not be necessary. The applicant would either have already moved out of home or would be able to be accommodated within the existing set-up of the house.
The applicant’s stimming and rigid thought processes require management. Different living arrangements are needed to accommodate this and encourage the applicant to live more independently. The arrangements proposed address these issues and are in that sense related to his disability.
Day to day living costs
There is one other issue raised by the respondent as a disqualifying matter which needs to be dealt with. The respondent submits that items like kettles and microwaves cannot be provided or funded because they are excluded by Rule 5.1(d) of the Support for Participant Rules which exclude supports which ‘relate[s] to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
I do not accept that argument. One off capital items like kettles and microwaves cannot be regarded as day-to-day living costs. Day-to-day living costs arise and are paid for on a more or less continuous basis. The items in questions are better characterised as capital items.
Even if I am wrong about that, viewed as an independent living area rather than as specific items, the support is attributable to the participant’s disability support needs. The applicant needs assistance to live independently and these items are part of creating an independent living space. Accordingly, the need for the whole of the space and the elements within it are attributable the applicant’s disability support needs and therefore they fall within the exception to the day-to-day living costs exclusion (see Rule 5.1(d)).
Assistance Dog
In addition to assistance with the funding of home modifications to provide the applicant with an independent living space, the applicant also seeks funding for an assistance dog. The two supports are complementary. The conception of the support is that the applicant will be able to live in a separate part of the family home in a more autonomous way, with the reassurance that an assistance animal can provide.
As noted previously, I was impressed by the evidence given by Mr Johnson in relation to the value of assistance animals.
Mr Johnson provided a clear description of the different ways companion animals can be classified. First there are pets which provide companionship and a rewarding relationship but no particular additional benefit. Second there are therapy dogs which are trained for specific tasking in a facility. Third there are assistance dogs (which is what the applicant seeks) which include guide dogs and hearing dogs, dogs which undertake stability work for someone who needs bracing to assist them in mobility for standing, walking or movement, or which overcome physical or cognitive impairment.[20] The dog the applicant seeks falls into this last category.
[20] Transcript of proceedings, 2 September 2021, 92.
I am satisfied that there are good reasons to expect that an assistance animal would enhance the applicant’s ability to cope with the less supervised environment that is being proposed.
Mr Johnson was very frank about the limitations in the broader literature concerning the value of assistance dogs but he gave insights based on his wealth of experience. He was confident that the dog which had been earmarked for training with the applicant could:
(a)Disrupt stress by nudging or pawing;[21]
(b)Engage in personal space buffering where the dog creates a space between a troubling or overwhelming stimulus;[22]
(c)Provide physical pressure in the form of a decompression in which the dog would encourage the applicant to sit down.[23]
[21] Transcript of proceedings, 2 September 2021, 81.
[22] Transcript of proceedings, 2 September 2021, 91.
[23] Transcript of proceedings, 2 September 2021, 91-92.
All of this behaviour will assist the applicant to live more independently.
This conclusion is supported by the experience of the Doyle’s in relation to their son. Ms Doyle’s evidence demonstrates that the level of independence which can be attained by a person with autism is enhanced by the provision of an assistance dog.
While initially the applicant sought to have the costs of acquiring an assistance dog funded in his Statement, the claim has since been revised so that the applicant only seeks funding in the current Statement in the amount of up to $7229.[24] This sum will be used to provide pet insurance, veterinary care, specialised dog food and weekly face to face training for both the applicant and the dog.
[24] Transcript of proceedings, 1 September 2021, 4; Letter from Applicant’s representative filed by Applicant on 25 August 2021, 2-3.
The respondent’s position is that the matters identified in section 34 are not all satisfied in relation to the funding of the support.
The respondent denies that the support will assist the applicant to pursue his goal of independence. It contends that the applicant’s cognitive ability is so compromised that the Tribunal could not be satisfied that the applicant will be able to learn to derive benefits from an assistance animal.
I do not accept that submission. The experience of the Doyle family shows that a person with moderately severe autism can achieve significant improvements in independence levels with the aid of an assistance animal. In circumstances where it is known that the support can work, I am satisfied that the provision of an assistance dog will assist the applicant to pursue the goal of independence. It may be that after a year it becomes clear that an assistance animal is not going to be successful with the applicant. At that point the support can be removed from the Statement on the basis of what is known then. But at this point, given what is known, the evidence favours the conclusion that the support will assist the participant to pursue the goal of independence.
The respondent further submits that there is no evidence that the support will assist the applicant to undertake activities so as to facilitate the applicant’s social and economic participation. I do not accept that submission. The experience of Mr Doyle shows that it is possible for an assistance animal to significantly enhance an autistic person’s social and economic participation. Again, if it turns out that the assistance animal is ineffective in this regard, then it can be removed from the Statement when the plan is reviewed.
The respondent submits that the support does not represent value for money on the basis that it may not succeed, and it does not replace any of the formal supports that the applicant currently is supplied with. As noted previously, in circumstances where plans are reviewed annually, and there is good evidence that a support is likely to assist a participant to achieve his goals, provided the costs are reasonable it makes sense to deploy an innovative support rather than assume that it will not work and deny it on that basis. Further, the contention that the support animal does not replace any existing supports and is not value for money is, with respect, short sighted. The applicant currently benefits from a huge amount of support from his immediate family. Over the course of his lifetime that level of support will inevitably diminish as his parent’s age and become less able to provide the levels of support which he has become used to. At that point, if the applicant is not more independent, the scheme will be called upon to provide higher levels of care in the form of greater supervision by carers. This will be expensive. If on the other hand, the applicant is able to live independently with the support of an assistance animal and minimal supervision from aging parents, then the savings to the scheme over the applicant’s life are likely to be enormous. At this point in time, funding this support does represent value for money when its prospects of succeeding are considered against the potential for downstream savings. I am satisfied that at this point in time the support does represent value for money. If the independence benefits do not materialise over the coming years, then that assessment may change. At that point the funding may have to be withdrawn. But given the evidence base that is available to the Tribunal at this point in time, the support does represent value for money.

The respondent submits that the support is not likely to be effective and beneficial for the participant. It contends that the Doyle’s experience is not relevant because the conditions which their son suffered from are distinguishable.
I reject that submission. It can be accepted that no two participants in the scheme are identical and merely because an intervention has been effective for one participant it should not be automatically assumed that it will be effective for another. However, as noted above, I am satisfied that the applicant’s mother has been making reliable and effective judgments about what treatments and circumstances will best serve her son’s independence and development over his entire life, I give significant weight to her judgment that the Doyle’s success in transitioning their son to a more independent life has good prospects of being replicated in relation to the applicant. I accept that the professionals who have considered the question have been more guarded in their assessment but they are coming from a much narrower knowledge base than the applicant’s mother.
The respondent submits that a pet would be just as effective and beneficial as an assistance dog and pets should be provided by families rather than funded through the NDIS. This significantly understates what the applicant and his family are attempting to achieve by the provision an assistance animal. Leaving the applicant alone to manage his own emotional state by himself is a significant step. Providing an animal trained to monitor the emotional state of his owner and with skills to intervene to help the owner manage them is providing something far more supportive than a pet. Whether or not a dog providing these kinds of interventions meets a particular guideline to qualify as an assistance animal for the purposes of the NDIA is not essential or determinative. I am satisfied that the provision of a dog as proposed is a reasonable and necessary support in relation to this applicant and funding it meets the thresholds specified in section 34. If in practice the training is unsuccessful and the dog does not succeed in providing the assistance that the applicant needs to become more independent, then the decision to include it in the Statement can be reviewed. But at this time, there is evidence to support its inclusion on the basis that the support is likely to be effective and beneficial for the participant.
The respondent submits that it is likely that the dog will function only as a pet and therefore it should not be funded. If it turns out to be the case that the dog functions only as a pet then I would accept that submission. However at this point in time it is clear from the way the dog has been selected and the training that will be provided, that it will not function only as a pet. Further, the only funding which the applicant seeks is funding of specific things which are required to elevate the dog from being a pet and into the realm of an assistance animal – the cost of training, the cost of dog food which assists the dog to perform its support functions, the cost of veterinary services and the cost of insurance which are required before an assistance dog can be placed with the applicant. In the event that the applicant and the dog are unable to succeed in working together to achieve improved independence and greater social and economic participation then it will no longer be appropriate to fund these things. But so long as the evidence supports the assessment that the provision of a trained dog is likely to be effective and beneficial, the funding sought is appropriate to be provided under the NDIS.
Support Rules
The respondent submits that inclusion of the support in the Statement is prohibited by the Rules.
The respondent contends that the support is ‘likely to cause harm to the participant or pose a risk to others’ in breach of Rule 5.1. There is no evidence to support this contention. The evidence of the applicant’s mother is that he interacts safely with other dogs and there is no reason to believe that the applicant poses a risk to any assistance animal or vice versa.
The specific risks identified by the respondent were firstly that the dog may not have sufficient downtime thus posing a risk to its wellbeing. Further, it is claimed that there is a risk that the applicant may bond with the dog, but if it fails as an assistance dog then this poses an emotional risk to the applicant.
In my assessment it is clear that the applicant’s family is actively engaged with the process of obtaining and training an assistance animal. They have engaged a high-quality provider who has experience in providing assistance animals to people who rely on the animal for emotional support. I am confident that the family will understand and implement what is required to ensure the assistance animal’s long-term welfare. Equally, I am confident that the family will not allow anything to happen that will harm the applicant’s emotional well-being. If the dog they have acquired does not succeed as an assistance animal, then I am confident that they will consider the applicant’s welfare in deciding what steps to take next. In my assessment there is no evidence to support the proposition that the provision of an assistance animal is likely to cause harm to the participant or poses a risk to the assistance animal.
The respondent contends that the support ‘duplicates other supports delivered under alternative funding through the NDIS’ in breach of Rule 5.1(c). I do not accept that submission.
It is clear from the evidence that the supports proposed are primarily directed at enabling the applicant to live independent of the family support that is provided in the morning, evenings and overnight when care is not being provided under his plan. It is directed at developing a different kind of independence to the kind supported by the existing plan. What is proposed does not duplicate existing supports. Rule 5.1(c) does not apply.
In its summing up, the respondent levelled quite legitimate criticisms at the various reports prepared by health professionals. It is true that the impetus for the plan changes appeared to come the applicant’s family rather than any professional recommendation. As a result, the evidence provided by the health professionals who worked with the applicant did not demonstrate the rigorous engagement with the proposal which would be expected if they were advocating adoption of the proposal as a means of better managing the applicant’s disability. In the present case, this is not fatal to the applicant’s claims. As I have already noted, I am satisfied that his mother has a long history of making sound judgments about how best to promote the applicant’s development and independence. Her assessments are supported by the lived experience of another family facing similar issues. In circumstances where the funding sought is modest and represents exceptionally good value for money if it is successful in terms of minimising the applicant’s future care needs, I am content to place significant reliance on the evidence provided by the applicant’s mother.
Conclusion
I am satisfied that the bases on which the respondent contends that the supports do not meet the necessary criteria for inclusion in the applicant’s Statement are not made out.
Accordingly I am satisfied that the following supports should be included in the applicant’s Statement:
(a)Home modifications which create an independent living space for the applicant funded to a maximum of $57,145;
(b)Provision of an assistance animal funded to a maximum of $7229.
These supports should be included in the Statement in addition to the funded supports already accepted by the respondent.
The Tribunal directs that the respondent provide the Tribunal with a statement of participant supports for approval which is consistent with the reasons set out above within 14 days. Upon receipt of the Statement, the Tribunal will set aside the decision of 13 August 2021 and approve the statement so provided.

I certify that the preceding 171 (one-hundred and seventy one) paragraphs are a true copy of the reasons for the direction herein of Senior Member Damien O’Donovan.

...........[Sgd]...............................................
Associate
Dated: 7 January 2022

Date of hearing: 1-3 September 2021

Solicitor for the Applicant:

Counsel for the Applicant:

Solicitor for the Respondent:

Counsel for the Respondent:

Ms Elizabeth McAuley, Legal Aid ACT

Mr Jamie Ronald

Ms Kiera Love, National Disability Insurance Agency

Ms Katrina Musgrove

Annexure
National Disability Insurance Scheme (Supports for Participants) Rules 2013 Schedule 1 Considerations relating to whether supports are most appropriately funded through the NDIS
7.1     The Act limits the supports that can be provided or funded under the NDIS to supports that are not more appropriately funded or provided through other service systems, for example as part of a universal services obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
7.2     The considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by the NDIS or another service system.
7.3     For the avoidance of doubt, while this Schedule sets out considerations relevant to whether a support should be considered to be more appropriately provided or funded through another service system, it does not purport to impose any obligations on another service system to fund or provide particular supports.
Note: The considerations set out in this Schedule are derived from the Principles to determine the responsibilities of the NDIS and other service systems, agreed to by the Council of Australian Governments, and dated Friday 19 April 2013. That document also includes principles relating to aged care. They are not relevant to this Schedule, but are given effect to in section 19 of the Act, and the National Disability Insurance Scheme (Becoming a Participant) Rules 2013.

Health (excluding mental health)
7.4     The NDIS will be responsible for supports related to a person’s ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment.
7.5     The NDIS will not be responsible for:
(a)     the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions; or
(b)     other activities that aim to improve the health status of Australians, including general practitioner services, medical specialist services, dental care, nursing, allied health services (including acute and post-acute services), preventive health, care in public and private hospitals and pharmaceuticals or other universal entitlements; or
(c)     funding time-limited, goal-oriented services and therapies:
(i)      where the predominant purpose is treatment directly related to the person’s health status; or
(ii)     provided after a recent medical or surgical event, with the aim of improving the person’s functional status, including rehabilitation or post-acute care; or

(d) palliative care.

Mental health
7.6     The NDIS will be responsible for supports that are not clinical in nature and that focus on a person’s functional ability, including supports that enable a person with a mental illness or psychiatric condition to undertake activities of daily living and participate in the community and social and economic life.
7.7     The NDIS will not be responsible for:
(a)     supports related to mental health that are clinical in nature, including acute, ambulatory and continuing care, rehabilitation/recovery; or
(b)     early intervention supports related to mental health that are clinical in nature, including supports that are clinical in nature and that are for child and adolescent developmental needs; or
(c)     any residential care where the primary purpose is for inpatient treatment or clinical rehabilitation, or where the services model primarily employs clinical staff; or
(d)     supports relating to a co-morbidity with a psychiatric condition where the co-morbidity is clearly the responsibility of another service system (eg treatment for a drug or alcohol issue).

Early childhood development
7.8     The NDIS will be responsible for personalised supports, specific to a child’s disability (or developmental delay), which are additional to the needs of children of a similar age and beyond the reasonable adjustment requirements of early childhood development service providers.
7.9     The NDIS will be responsible for early interventions for children with disability (or developmental delay) which are:
(a)     specifically targeted at enhancing a child’s functioning to undertake activities of daily living, but not supports which are specifically for the purpose of accessing a universal service such as school readiness programs that prepare a child for education; and
(b)     likely to reduce the child’s future support needs, which would otherwise require support from the NDIS in later years, including through a combination and sequence of supports.

7.10   The NDIS will not be responsible for:
(a)     meeting the early childhood education and care needs of a child with a developmental delay or disability required by children of a similar age including through inclusion supports that enable children to participate in early childhood education and care settings; or
(b)     supports, which are clinical in nature provided in the health system, including acute, ambulatory or continuing care; or
(c)     new-born follow-up provided in the health system, including child and maternal health services.

Child protection and family support
7.11   The NDIS will be responsible for:
(a)     supports for children, families and carers, required as a direct result of a child's disability, that enable families and carers to sustainably maintain their caring role, including community participation, therapeutic and behavioural supports and additional respite and aids and equipment; and
(b)     where a child is in out-of-home care—supports specific to the child's disability (or developmental delay), which are additional to the needs of children of similar ages, in similar out-of-home care arrangements. The diversity of out-of-home care arrangements is recognised and the level of reasonable and necessary supports will reflect the circumstances of the individual child.

7.12   The NDIS will not be responsible for:
(a)     statutory child protection services required by families who have entered, or are at risk of entering, the statutory child protection system; or
(b)     general parenting programs, counselling or other supports for families, which are provided to families at risk of child protection intervention and to the broader community, including making them accessible and appropriate for families with disability; or
(c)     funding or providing out-of-home care or support to carers of children in out-of-home care where these supports are not additional to the needs of children of similar age in similar out-of-home care arrangements.

School education
7.13 The NDIS will be responsible for supports that a student requires that are associated with the functional impact of the student’s disability on their activities of daily living (that is, those not primarily relating to education or training attainment), such as personal care and support, transport to and from school and specialist supports for transition from school education to further education, training or employment that are required because of the student's disability. Any supports funded by the NDIS will recognise the operational requirements and educational objectives of schools.
7.14 The NDIS will not be responsible for personalising either learning or supports for students that primarily relate to their educational attainment (including teaching, learning assistance and aids, school building modifications and transport between school activities).

Higher education and vocational education and training
7.15 The NDIS will be responsible for supports that a student requires which are associated with the functional impact of the student's disability on their activities of daily living (that is, those not primarily relating to education or training attainment), such as personal care and support, transport to and from the education or training facility and specialist supports for transition from education or training to employment that are required because of the person's disability.
7.16 The NDIS will not be responsible for the learning and support needs of students that primarily relate to their education and training attainment (including teaching, learning assistance and aids, building modifications, transport between education or training activities and general education to employment transition supports).

Employment
7.17   The NDIS will be responsible for:
(a)     supports related to daily living that a person would require irrespective of whether they are working or looking for work (including personal care and support and transport to and from work); and
(b)     frequent and ongoing supports that assist a person with disability to take part in work where the person has work capacity and is unlikely to be able to find or retain work in the open market, including with the assistance of employment services; and
(c)     individualised assistance to support a person with disability to transition into employment, where these support needs are additional to the needs of all Australians and specifically required as a result of a person’s functional impairment, eg training on workplace relationships, communication skills, dress, punctuality and attendance, and travelling to and from work.

7.18   The NDIS will not be responsible for:
(a)     work-specific support related to recruitment processes, work arrangements or the working environment, including workplace modifications, work-specific aids and equipment, transport within work activities and work-specific support required in order to comply with laws dealing with discrimination on the basis of disability; or
(b)     the funding or provision of employment services and programs, including both disability-targeted and open employment services, to provide advice and support to:
(i)      people with disability to prepare for, find and maintain jobs; or
(ii)     employers to encourage and assist them to hire and be inclusive of people with disability in the workplace (ie support, training and resources, funding assistance to help employers make reasonable adjustments, and incentives for hiring people with disability, eg wage subsidies).

Housing and community infrastructure
7.19   The NDIS will be responsible for:
(a)     supports to assist a person with disability to live independently in the community, including by building their capacity to maintain a tenancy, and support for appropriate behaviour management; and
(b)     home modifications for accessibility for a person in private dwellings; and
(c)     home modifications for accessibility for a person in legacy public and community housing dwellings on a case-by-case basis but not to the extent that it would compromise the responsibility of housing authorities to develop, maintain and refurbish stock that meets the needs of people with disability; and
(d)     user costs of capital in some situations where a person requires an integrated housing and support model and the cost of the accommodation component exceeds a reasonable contribution from individuals.

7.20 The NDIS will not be responsible for:

(a)     the provision of accommodation for people in need of housing assistance, including routine tenancy support and ensuring that appropriate and accessible housing is provided for people with disability; or
(b)     ensuring that new publicly-funded housing stock, where the site allows, incorporates Liveable Housing Design features; or
(c)     homelessness-specific services including homelessness prevention and outreach, or access to temporary or long term housing for participants who are homeless or at risk of homelessness; or
(d)     the improvement of community infrastructure, ie accessibility of the built and natural environment, where this is managed through other planning and regulatory systems and through building modifications and reasonable adjustment where required.

Transport
7.21   The NDIS will be responsible for:
(a)     supports for a person that enable independent travel, including through personal transport-related aids and equipment, or training to use public transport; and
(b)     modifications to a private vehicle (ie not modifications to public transport or taxis); and
(c)     the reasonable and necessary costs of taxis or other private transport options for those not able to travel independently.

7.22   The NDIS will not be responsible for:
(a)     ensuring that public transport options are accessible to a person with disability, including through the funding of concessions to people with disability to use public transport; or
(b)     compliance of transport providers and operators with laws dealing with discrimination on the basis of disability, including the Disability Standards for Accessible Public Transport 2002; or
(c)     transport infrastructure, including road and footpath infrastructure, where this is part of a universal service obligation or reasonable adjustment (including managing disability parking and related initiatives).

Justice
7.23   In sections 7.24 and 7.25:
person not in custody means a person who is subject to the justice system (including relevant elements of the civil justice system), but is not in a custodial setting (for example, a person on bail, a person under a community based order that places controls on the person to manage risks to the individual or to the community, a former prisoner on parole, or a person in home detention).
person in custody means a person in a custodial setting, whether on remand or as a result of a sentence or other court order (including in a youth detention and training facility), or in a secure mental health facility.
transition supports, for a person in a custodial setting, means supports to facilitate the person's transition from the custodial setting to the community that:
(a)     are reasonable and necessary; and
(b)     are required specifically as a result of the person's functional impairment.

7.24   The NDIS will be responsible for:
(a)     in relation to a person not in custody—reasonable and necessary supports on the same basis as all other persons; and
(b)     in relation to a person in custody:
(i)      reasonable and necessary supports other than those mentioned in paragraph 7.25(a), to the extent appropriate in the circumstances of the person's custody; and
(ii)     transition supports.

7.25   The NDIS will not be responsible for:
(a)     the day-to-day care and support needs of a person in custody, including supervision, personal care and general supports; or
(b)     ensuring that criminal justice system services are accessible for people with disability including appropriate communication and engagement mechanisms, adjustments to the physical environment, accessible legal assistance services and appropriate fee waivers; or
(c)     general programs for the wider population, including programs to prevent offending and minimise risks of offending and re-offending and the diversion of young people and adults from the criminal justice system; or
(d)     the management of community corrections, including corrections-related supervision for offenders on community based orders; or
(e)     the operation of secure mental health facilities that are primarily clinical in nature.