MORLEY and CEO, National Disability Insurance Agency (NDIS)

[2025] ARTA 1905

MORLEY and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1905 (26 September 2025)

Applicant/s:  DAVID MORLEY

Respondent:  CEO, National Disability Insurance Agency

Tribunal Number:               2024/9247

Tribunal:Senior Member J Collins  

Place:Brisbane

Date:26 September  2025

Decision: Pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is affirmed.

................[SGD]................

Senior Member J Collins

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME –Multiple Sclerosis – electric bike – car rack tow bar- reasonable and necessary supports – consideration of section 34 National Disability Insurance Scheme Act 2013 (Cth) - decision affirmed.

Legislation

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act) (Cth)

Administrative Review Tribunal Act 2024 (Cth) s101, s105

National Disability Insurance Scheme Act 2013 (Cth) s10, s34

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)- s129

National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)

Cases

McGarrigle v National Disability Insurance Agency [2017] FCA 308

Mills v NDIA [2025] ARTA1410
FSWN v NDIA [2025] ARTA 114

Statement of Reasons

1.      Mr David Morley is a 53-year-old man and is a participant in the National Disability Insurance Scheme (‘the scheme’).

2.      On 9 August 2024 National Disability Insurance Agency (‘the Agency’) approved a Statement of Participant’s Supports (SOPS) for Mr Morley.[1] Mr Morley’s SOPS contained the supports that he would be funded for under the scheme.

[1] T17

3.      Dissatisfied with his SOPS, Mr Morley applied to the Agency for an internal review of his SOPS. On 4 November 2024 the Agency conducted an internal review and confirmed its original decision (‘the decision under review’).

4.      On 12 November 2024, Ms Morley applied to the Administrative Appeals Tribunal (‘the AAT’) for a review of this decision.

5.      From 14 October 2024, the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise existing applications.

6.      Mr Morley attended the hearing in person. His support coordinator, Ms Georgina Butler attended as his advocate, on a pro bono basis. The Agency was represented by Mr Ben Wilson of Counsel, instructed by Mills Oakley.

ISSUES

7.      At the commencement of the hearing Mr Morley confirmed that the following two supports remained in dispute:

·An electric bike (Cube 23 Stereo Hybrid 160 HPC SLX 750 LG Carbon Reflex) at $6,994.00 (‘electric bike’)

·A car rack tow ball - Thule Velo Compact Tow Ball Tilt 3 at $825 (‘car rack tow ball’).

8.      Mr Morley contended that these two supports should be funded under the scheme and included in his SOPS.

9. The issues before the Tribunal are whether these two supports are ‘reasonable and necessary supports’ under section 34 of the National Disability Insurance Act 2013 (‘NDIS Act’).

THE NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 (CTH)

10. Section 34 of the National Disability Insurance Scheme Act 2013 (‘the NDIS Act’) identifies what constitutes a ‘reasonable and necessary’ support under the scheme.

11.     On 3 October 2024 and prior to the completion of this review, the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (‘the Amending Act’) made a range of ‘amendments’ to the NDIS Act. These amendments included amendments to section 34 of the NDIS Act will apply to this review.[2]

[2] Section 129 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024.

12. Section 34 of the NDIS Act provides as follows:

Reasonable and necessary supports

(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

(aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);

(a)   the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;

(b)   the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;

(c)   the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

(d)   the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

(e)   the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

(f)     the support is an NDIS support for the participant.

Note: For the purposes of paragraph (aa):

(a)  the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and

(b)  a participant's disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.

(2)The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).

13. Subsection 34(1) of the NDIS Act is cumulative and therefore all the criteria must be met.

14. Relevant to this review is subsection 34(1)f) of the NDIS Act and the mandatory requirement that a support which is funded under the scheme be an ‘NDIS support’.

15. Section 10 to the NDIS Act, provides a definition of what constitutes an ‘NDIS Support’ for the purposes of subsection 34(1)(f) of the NDIS Act. Section 10 of the NDIS Act provides as follows:

Supports that are NDIS supports

(1)Subject to subsections (4) and (9), a support is an NDIS support for a person who is a participant or prospective participant if the support is declared by National Disability Insurance Scheme rules made for the purposes of this subsection to be an NDIS support for:

(a)   participants or prospective participants generally; or

(b)   a class of participants or prospective participants that includes the person.

Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

(2)Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (1), the Minister must be satisfied:

(a)   for rules to which paragraph (1)(a) applies--that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or

(b)   for rules to which paragraph (1)(b) applies--that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

(3)National Disability Insurance Scheme rules may declare a support for the purposes of subsection (1) only if at least one of the following applies:

(a)   the declaration of the support implements Australia’s obligations under:

(i)the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006; or

(ii)any other agreement with one or more other countries;

(b)   the declaration of the support enables the provision of sickness benefits.

Note: For subparagraph (a)(i), the Convention on the Rights of Persons with Disabilities is in Australian Treaty Series 2008 No. 12 ([2008] ATS 12) and could in 2024 be viewed in the Australian Treaties Library on the website ( that are not NDIS supports

(4)The National Disability Insurance Scheme rules may declare that a support is not an NDIS support for:

(a)   participants or prospective participants generally; or

(b)   a class of participants or prospective participants.

Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

.

………………………………………………………………………….’.

16. Section 10(1) of the NDIS Act therefore provides that a support is an NDIS support if it is declared by the ‘National Disability Insurance Scheme rules’ to be an NDIS Support.

17. Section 10(4) of the NDIS Act provides that the ‘National Disability Scheme rules’ may also declare that a support is not an NDIS support.

18.     The National Disability Scheme rules relevant to this review are the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth). (‘the Transitional Rules’)

19. Schedule 1 to the Transitional Rules identifies supports that are NDIS supports unless otherwise provided, for the purposes of subsection 10(1) of the NDIS Act. In contrast, Schedule 2 to the Transitional Rules identifies supports that are ‘generally’ not NDIS supports for the purposes of subsection 10(4) of the NDIS Act.

EVIDENCE

20.     I have considered all the written evidence filed with the Tribunal and provided in the joint bundle, the oral evidence provided at the hearing on 18 July 2025, and the parties’ closing submissions. I will refer in my decision to some of the more salient aspects of the evidence. The fact however that I do not refer to all parts of the evidence does not mean that I have not taken all evidence before the Tribunal into account in reaching my decision.

Evidence about Mr Morley

21.     Mr Morley was granted access to the scheme based on multiple impairments due to multiple sclerosis.

22.     Mr Morley gave oral evidence at the hearing which can be summarised as follows:

·He was diagnosed with multiple sclerosis approximately 12 years ago;

·He resides with his wife and child and works on a full-time basis;

·He is able to drive a motor vehicle and does so regularly;

·Prior to his diagnosis of multiple sclerosis Mr Morley very much enjoyed bike riding and undertook this activity regularly. This included riding his bike with his family at various locations;

·Because of multiple sclerosis, Mr Morley’s ‘strength’ in his left arm and left leg has over time diminished;

·He currently has a manual bike which is approximately 16 years old;

·He still enjoys riding his manual bike however due to the loss of strength in his arm and leg, his ability to ride his manual bike, as he once did, is now affected. Mr Morley explained by way of example, his difficulty in riding up hills.

·For this reason, Mr Morley is now confined to riding his manual bike around a few of the streets which are located near to his home;

·Currently Mr Morley rides his manual bike approximately once a week;

·Mr Morley seeks funding for an electric bike so that he can manage difficulties with hills and other terrains. He also seeks an electric bike so that he can ride beyond the immediate geographical vicinity of his home. In this regard he explained his desire to ride with his family in a ‘valley’ which is located near to his home. He would also like to ride along ‘fire trails’ which he is currently unable to do with his manual bike;

·Mr Morley explained that being able to ride a bike further that the few streets nearby to where he resides will allow him to enjoy nature and many other things ‘in the same way’ that he used to before he developed multiple sclerosis. It will also greatly benefit his general health and wellbeing by maintaining his fitness and strength. It will also improve his ability to connect with his community;

·Irrespective of whether he is funded for an electric bike Mr Morley seeks funding for a car rack tow ball. This is to enable him to transport his manual bike (and at times his wife and child’s bike) to various locations for bike rides;

·The ability to transport his manual bike will allow him to ride beyond the streets around his home. Currently he must transport his manual bike in the back of his four-wheel drive motor vehicle. He explained that his manual bike was quite heavy to lift. Mr Morley also explained that there was insufficient room in the back of his four wheel drive motor vehicle to also transport his wife and his child’s bike at the same time.  In this regard a car rack tow ball would allow Mr Morley to travel to various locations with his wife and child and their respective bikes and thereafter rides their bikes together.

·Mr Morley stated that a car rack tow ball could be purchased ‘off the shelf’[3] for use with a manual bike and that no adaptations or modifications to this piece of equipment was required in order to manage his disability.

[3] By way of example at ‘99 Bikes’

23.     In an undated ‘support letter’ by Ms Jacqui Langford, occupational therapist, stated that Mr Morley’s current bike does not meet his disability related needs. Furthermore, that she does not consider his current bike is suitable for any adaptations. Ms Langford explained that Mr Morley did not use his current bike as a primary mode of transport. Further, that if an electric bike is funded under the scheme, it would be used by Mr Morley for participation in the community, leisure engagement, meaningful participation in family and social activities and also occasionally for exercise.[4]  Ms Langford described an electric bike as the most suitable and reasonable AT device to support Mr Morley’s continued independence, social participation and health.

[4] JTB2

24.     In another letter of support dated 12 June 2025, Mr Duncan Smith physiotherapist stated:

Without his diagnosis of MS, Mr Morley would not need the Assistive Technology of the electric component of the E-bike.[5] .

[5] JTB6

25.     In a letter dated 12 May 2025, Ms Nicole Rogers,  exercise physiologist stated that an electric bike ‘is not merely a recreational or everyday consumer item, but a legitimate piece of assistive technology that enables meaningful participation, independence, and health outcomes’ for Mr Morley. [6]

[6] JTB5

26.     Also in a letter of support Dr Widanagamage, general practitioner[7] strongly advocated for the funding of an electric bike for Mr Morley on the basis that it  ‘aligns seamlessly with the NDIS criteria of being reasonable and necessary, as it enables Mr. Morley to preserve his current level of independence while effectively managing his MS symptoms.’

[7] JTB11

27.     In undated correspondence Professor Pamela McCombe, neurologist [8] states that an electric bike would help Mr Morley preserve and potentially build his physical capabilities.

[8] T 14

Mr Morley’s position

28. Mr Morley’s application to the Tribunal for the funding of an electric bike and car rack tow ball predated the amendments to the NDIS Act in October 2024 and the implementation of the Transitional Rules.

29.     He considers it ‘unfair’ that the rules have been changed.

30.     Mr Morley contends that even if an electric bike is excluded under the Transitional Rules, by virtue of Schedule 2, the car rack tow ball is a valuable piece of ‘assistive technology’ for the transportation of his manual bike.

The Agency’s position

31.     The Agency refers to item 6(f) of Schedule 2 of the NDIS Supports Transitional Rules which provides that the following ‘Day-to-Day living costs –travel and transport’ are not NDIS Supports for the purposes of section 10 of the NDIS Act:

(f) personal mobility devices, including e-scooters, electric bikes and skateboards (Tribunal emphasis)

32. The Agency contends that on the basis an electric bike is not an NDIS support under the Transitional Rules and for the purposes of section 10 of the NDIS Act, section 34(1)(f) of the NDIS Act is not satisfied.

33. In this regard the Agency identifies the cumulative operation of section 34(1) of the NDIS Act. The simple effect being, that the failure to satisfy s34(1)(f) of the NDIS Act results an inevitable conclusion that an electric bike is not a reasonable and necessary support capable of funding under the scheme.

34.     The Agency also refers to item 4(g) of Schedule 2 of the NDIS Supports Transitional Rules which provides that the following ‘Day-to-Day living costs – lifestyle’ are not NDIS Supports for the purposes of section 10 of the NDIS Act:

(g) standard recreational equipment and tools, including toys, balls and racquets

35.     The Agency contends that a car rack tow ball is a standard piece of everyday  recreational equipment which can be purchased ‘off the shelf’ and allows Mr Morley to pursue his ‘hobby’ of bike riding. On this basis the Agency submits that a car rack tow ball falls within the ambit of item 4(g) of Schedule 2 of the NDIS Transitional Rules.  

36. The Agency contends on the basis a car rack tow ball is excluded as an NDIS support under item 4(g) of the Transitional Rules and for the purposes of section 10 of the NDIS Act, section 34(1)(f) of the NDIS Act is not satisfied. Likewise, in respect of this support the inevitable conclusion is also that a car rack tow ball is not a reasonable and necessary support capable of funding under the scheme.

Consideration

37.     The Agency’s submissions are accepted.

38. Only supports which satisfy section 34(1) of the NDIS Act are capable of being funded under the scheme and thereafter included in a participant’s SOPS.

39. Section 34(1) contains six criteria. These criteria operative cumulatively and each criterion must be met. Therefore, the failure to satisfy one criterion has the inevitable effect that the support sought is not ‘reasonable and necessary’ for the purposes of section 34(1) of the NDIS Act

40. One of the criteria of section 34(1) of the NDIS Act is subsection 34(1)(f) which provides as a mandatory requirement that the support sought be an ‘NDIS Support’.

41. Section 10(1) of the NDIS Act provides that a support is an NDIS support if it is declared by the ‘National Disability Insurance Scheme rules’ to be an NDIS Support.

42. Section 10(4) of the NDIS Act provides that the ‘National Disability Scheme rules’ may also declare that a support is not an NDIS support.

43.     The National Disability Scheme rules relevant to this review are the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth) (‘the Transitional Rules’)

44. Schedule 1 to the Transitional Rules identifies supports that are NDIS supports unless otherwise provided, for the purposes of section 10 of the NDIS Act. In contrast, Schedule 2 to the Transitional Rules identifies supports that are ‘generally’ not NDIS supports for the purposes of section 10 of the NDIS Act.

45.     The use of the word ‘generally’ in Schedule 2 to the Transitional Rules is not relevant to this review. It refers to the mechanism whereby a participant may apply to the Agency for a ‘Replacement support determination’.[9] This mechanism does not relate to electric bikes or car rack tow bars. Rather, this mechanism is currently confined to the following supports:

·     Standard commercially available household items;

·     Smart watches;

·     Tablets;

·     Smartphones; and

·     An app used for accessibility or communications purposes.

[9] See section 7 Transitional Rules; section 10(6) – 10(7) NDIS ACT

46.     In determining whether a support is an NDIS support, the Tribunal’s first task is to consider whether the support is not an NDIS support by the operation of schedule 2 of the NDIS Transitional Rules. On the basis the support does not fall within Schedule 2 of the Transitional rules, only then it is necessary for the Tribunal to consider whether the support falls within the ambit of Schedule 1 of the Transitional Rules. [10]

[10] Mills v NDIA [2025] 1410 at 48, FSWN v NDIA [2025] ARTA 114 at [43]

Electric Bike

47.     Item 6(f) of Schedule 2 of the Transitional Rules specifically provides that an electric bike is not an NDIS Support for the purposes of section 10 of the NDIS Act.

48.     There is no ambiguity whatsoever in the language used in Item 6(f) of Schedule 2 of the Transitional Rules.  An electric bike is clearly and obviously excluded as a support capable of being funded under the scheme.

49. I am satisfied that an electric bike is not an ‘NDIS Support’ for the purposes of section 10 of the NDIS Act and that section 34(1)(f) of the NDIS is not satisfied.

50. Having failed to meet section 34(1)(f) of the NDIS Act the consideration of all other criteria is unnecessary and futile.

Conclusion - Electric bike

51. An electric bike is not a reasonable and necessary support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Mr Morley’s SOPS.

Car rack tow ball

52.     I am satisfied that a car rack tow ball fall clearly within item 4(g) of Schedule 2 of the NDIS Supports Transitional Rules.

53.     A car rack tow ball is a standard and commonly used item purchased by many Australians in order to pursue recreational activities such as bike riding. Furthermore, a car rack tow ball can be purchased ‘off the shelf’ and used by Mr Morley without any adaptation or modification required for him to manage his disability needs.

54. I am satisfied that a car rack tow ball is not an ‘NDIS Support’ for the purposes of section 10 of the NDIS Act and that section 34(1)(f) of the NDIS is not satisfied.

55. Having failed to meet section 34(1)(f) of the NDIS Act the consideration of all other criteria is unnecessary and futile.

Conclusion - Car rack tow ball

56. An car rack tow ball is not a reasonable and necessary support for the purposes of Section 34(1) of the NDIS Act and cannot be included in Mr Morley’s SOPS.

Conclusion

57.     The Transitional Rules bind the Agency and the Tribunal as decision makers.

58.     In McGarrigle v National Disability Insurance Agency[11] at [43], Mortimer J (as Her Honour then was) made the following observations in respect of the rules relevant to the NDIS Act and the scheme itself:

The [Supports Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement…some policy decision-making about the nature and extent of supports to be provided or funded.

[11] McGarrigle v National Disability Insurance Agency [2017] FCA 308 (‘McGarrigle’)

59.     Recently in NDIA v IHY25 9 (by next friend IHZ25)[12] Banks-Smith J provided the following commentary specifically in relation to the inclusion of a support in a participant’s SOPS which was neither prescribed nor available to a participant for inclusion in the participant’s SOPS:

‘I am satisfied, ……………………………………., that the Tribunal erred by directing provision of a support which was not prescribed and so not available to the respondent. The Tribunal exceeded the powers available to the NDIA and so exceeded its own powers.’

[12] [2025] FCA 1122 at

60.     The Tribunal therefore has no power or discretion to direct the inclusion of a support in a participant’s SOPS which is neither prescribed nor available under Schedule 1 of the Transitional Rules.

61.     Likewise, the Tribunal also has no power or discretion to direct the inclusion of a support in a participant’s SOPS which is specifically excluded under scheme by the operation of Schedule 2 of the Transitional Rules.

62.     The Tribunal’s decision making ability is prescribed only by the legislature.

63.     With the introduction of the Amending Act on 14 October 2024 it is imperative that all participants, particularly those who choose to pursue administrative review before the Tribunal, understand clearly the following matters:

(a)the operation and effect of Schedule 2 of the Transitional Rules, which is to legislatively prescribe certain supports which will not be funded under the scheme. This prohibition applies notwithstanding whatever benefit the particular support may provide to a participant and irrespective of whatever evidence in support may be adduced such as ‘letters of support’ or expert opinions;

(b)the operation and effect of Schedule 1 of the Transitional Rules, which is to prescribe the actual supports which are in fact ‘available’ to be funded under the scheme.

64.     Participants who pursue administrative review in relation to supports, in the face of clear and unequivocal wording within the Transitional Rules, do no more than waste the public resources allocated to funding the operation of the Tribunal. Such conduct also consumes the limited funding allocated to the Agency in the administration of the scheme by compelling the Agency to unnecessarily respond in the administrative review process.

65. I stress that I make no criticism of the Agency’s conduct in these proceedings, particularly given that the amendments to the NDIS Act, as referred to above, are relatively recent. I do however refer the Agency to Section 101 of the Administrative Review Act 2024 (Cth) which provides as follows:

Tribunal may dismiss application if frivolous, vexatious etc.

(1)  The Tribunal may, at any time, dismiss an application made to the Tribunal if the Tribunal is satisfied that the application:

(a)  is frivolous, vexatious, misconceived or lacking in substance; or

(b)  has no reasonable prospects of success; or

(c)  is otherwise an abuse of the process of the Tribunal.

(2)  If the Tribunal dismisses an application (the substantive application ) under subsection   (1), the Tribunal may, on application by a party to the proceeding in relation to the substantive application or on its own initiative, order that the applicant for the substantive application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a specified kind or kinds.

(3)  The order has effect despite any other provision of this Act or any other Act.

Decision

66. The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2025 (Cth).

67.     I certify that the preceding 66 (sixty six) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins.

……..…[SGD]…..........

Associate

26 September 2025

Date(s) of hearing:

18 September 2025

Applicant:

Applicant’s Advocate:

Solicitors for the Respondent:

Mr David Morley

Ms Georgina Butler

Mills Oakley

Counsel for the Respondent:

Mr Ben Wilson