NMFF and National Disability Insurance Agency - [2024] AATA 3182

NMFF and National Disability Insurance Agency [2024] AATA 3182 (6 September 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s):2022/10388
Re:NMFF
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member P French
Date:6 September 2024
Place:Sydney

The Tribunal orders:
Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal decides that the respondent’s decision made on 18 March 2024 pursuant to s 47A of the National Disability Insurance Scheme Act 2013 (Cth) be set aside and remits the matter for reconsideration with directions that:
1.The statement of participant supports specifies that the reasonable and necessary supports include:
‘Core supports’ category:
(a)Transport subcategory: transport funding in the amount of $6,240.00;
(b)Assistance with self-care subcategory:
(i)15 hours per week at weekday daytime rates;
(ii)3 hours per week at Saturday rates;
(iii)3 hours per week at Sunday rates.

‘Capacity building supports’ category:
(a)‘other professional’ sub-category:
(i) 47 hours of occupation therapy support, which is to include 7 hours to allow for assessment of home modifications;
(ii) 30 hours of psychology support, which includes 4 hours for report writing.

2.The support listed at paragraph 1.1(a) replaces the Applicant’s existing transport funding.
3.The support listed at 1.2(a)(i) replaces the Applicant’s existing support for occupational therapy.
4.The support listed at 1.2(a)(ii) replaces the Applicant’s existing support for psychology.
5.All other supports in the Applicant’s existing statement of participant supports, excepting any one-off assistive technology supports already used, are to be replicated pro-rata from the date on which the supports specified above are included in the Applicant’s statement of participant supports until the reassessment date.
6.The management of funding for reasonable and necessary supports under the Applicant’s plan is to remain the same as the management of funding for those supports as specified in the statement of participant supports dated 18 March 2024.
7.The date by which the Agency must reassess the Applicant’s plan is to remain the same as that specified in the plan dated 18 March 2024.

.......................[SGD].................................................
Member P French
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – National Disability Insurance Agency – reviewable decision of Chief Executive Officer – preparing participants’ plans – approval of statement of participant supports – reasonable and necessary supports – whether requested support will assist the participant to pursue her statement of participant goals and aspirations – whether requested support represents value for money – whether requested support is effective and beneficial – whether requested support is most appropriately funded or provided through the NDIS – decision under review set aside and remitted for reconsideration with directions
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 19A, 25, 26, 37, 38AA, 43
Disability Discrimination Act 1992 (Cth), ss 4, 22, 31
Disability Standards for Education 2005 (Cth), c; 1.5, 2.1, Parts 4 - 8.
National Disability Insurance Scheme Act 2013 (Cth), ss 3, 4, 17A, 24, 31, 32, 33, 34, 35, 47A, 48, 99, 100, 103, 206
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth), rr 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 7.15, 7.16
CASES
Beezley v Repatriation Commission [2015] FCAFC 165; (2015) 150 ALD 11
Drake and Minister for Immigration and Ethnic Affairs (No.2) [1979] AATA 179; (1979) 2 ALD 634
Green v Daniels (1977) 51 ALJR 453
HPSC and National Disability Insurance Agency [2021] AATA 727
McGarrigle v National Disability Insurance Agency [2017] FCA 308; (2017) 252 FCR 121
National Disability Insurance Agency v KKTB by her litigation representative CVY22 [2022] FCAFC 181; (2022) 295 FCR 379
National Disability Insurance Agency v WRMF [2020] FCAFC 79; (2020) 276 FCR 415
Shi v Migration Agents Regulation Authority [2008] HCA 31; (2008) 248 ALR 390
SECONDARY MATERIALS
Department of Health and Aged Care, Modified Monash Model (including Health Workforce Locator)
National Disability Insurance Scheme, Pricing Arrangements and Price Limits 2024-25, 9 July 2024
National Disability Insurance Agency, operational guidelines, School Leaver Employment Supports
National Disability Insurance Agency, operational guidelines, Support Coordination.
National Disability Insurance Agency, operational guidelines, Specialist Support Coordination.
REASONS FOR DECISION
Member P French
6 September 2024
INTRODUCTION

This is an application by NMFF (the Applicant) who is represented by Ms XYZ, her mother, made under s 103(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act, the Act) which originally sought administrative review of an internal review decision made on 23 November 2022 under s 100(6) of that Act by the delegate of the Chief Executive Officer of the National Disability Insurance Agency (the delegate, the CEO, the Agency). By that decision, the delegate varied the CEO’s original decision under s 33(2) of the Act made on 11 August 2022 to approve a statement of participant supports in her participant plan which did not include certain supports that the Applicant had requested be included. The delegate approved some additional supports sought by Applicant; however, this did not resolve the dispute. This resulted in the Applicant instituting this proceeding on 18 December 2022 (the proceeding).
On 18 March 2024, while this proceeding was on foot, a delegate of the CEO decided to vary the Applicant’s participant plan pursuant to s 47A of the Act in response to her requests for additional supports (the variation decision). That variation resulted in the issue of a participant plan that incorporated a new statement of participant supports which was expressed to commence on 18 March 2024 and had a projected reassessment date of 18 March 2025 (the Applicant’s current participant plan). That variation did not resolve the underlying dispute.
By operation of s 103(2)(b), (c)(i), and (d), of the NDIS Act the proceeding is now taken to be an application for review of the variation decision (the reviewable decision) despite s 26(1) of the AAT Act. This Tribunal has jurisdiction under s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to review this decision because it is designated a reviewable decision by s 99(1) (Item 6) of the NDIS Act.
Prior to, and during, the review hearing the Agency reconsidered its position with respect four categories of additional support requested by the Applicant and agreed that the Applicant’s statement of participant supports should incorporate those items. At the Agency’s request, I have set aside the reviewable decision and remitted it for reconsideration by the CEO with a direction that these supports be incorporated into the Applicant’s participant plan.
What remained in dispute were five requested supports, being 1 additional hour of assistance with self-care per day, the quantum of funding for medium term accommodation, funding for project management of home modifications, a request for Level 3 Support Coordination, and funding for a school-leaver’s employment support package. For the reasons I set out in detail as follows, I am satisfied that the requested home modifications project management support is already incorporated into the Applicant’s participant plan. In relation to the other requested supports, I am not satisfied that any of them are reasonable and necessary. I therefore decline to direct the CEO to incorporate these items into the Applicant’s statement of participant supports.
Procedural history
Following the filing of the application, the proceeding was referred for alternative dispute resolution in accordance with Division 3 of Part IV of the AAT Act. Three Case Conferences were held between February and August 2023. However, the dispute was not resolved by alternative dispute resolution.
On 29 February 2024, the Deputy President responsible for the AAT’s NDIS Division constituted the proceeding for hearing to a Tribunal, differently constituted, in accordance with the President’s Directions made under s 19A of the AAT Act (the constitution). That Tribunal made procedural directions for the conduct of the proceeding to hearing and fixed the hearing for 5 and 6 August 2024.
Due to the original Member becoming unavailable, the proceeding was reconstituted to me on 22 May 2024. I conducted a pre-hearing Directions Hearing on 5 July 2024 and made a direction for the filing of a Joint Hearing Bundle. At the request of the Agency, I conducted a further Telephone Directions Hearing on 19 July 2024 to attempt to assist the parties to resolve a controversy that had arisen in relation to the requested supports that remained in dispute at that time. I issued some further pre-hearing directions to bring clarity to that issue, and in relation to the terms on which the Applicant’s professional witnesses had been engaged.
Evidence and hearing
I have considered the following material in reaching my decision:
(i)Agency’s Statement of Facts, Issues and Contentions, dated 2 August 2024;
(ii)Joint Tender Bundle;
(iii)Confidential Psychological Report by Jeff Broughton, Clinical Psychologist, Clinical Psychology Victoria dated 1 July 2024 (Exhibit 1 “Broughton Report”);[1]
(iv)Occupational Therapy Functional Capacity Assessment Report by Carly Dewar, Occupational Therapist, DLS Allied Health, undated, filed 1 July 2024 (Exhibit 2 “Dewar Report”);[2]
(v)The documents filed by the Agency pursuant to ss 37 and 38AA of the AAT Act (the T-documents).
[1] Joint Tender Bundle, Tab A3.
[2] Joint Tender Bundle, Tab A4.
The hearing was conducted by Video (MS Teams) on the morning of 5 August 2024 and the afternoon of 6 August 2024.
The Applicant did not attend and participate in the hearing. She was represented by her mother, Ms XYZ, who gave oral evidence under affirmation. Ms A Gatt, the Applicant’s Support Coordinator, attended the hearing as an informal support person for Ms XYZ. The Applicant called as witnesses Mr J Broughton, Clinical Psychologist, and Ms C Dewar, Occupational Therapist, both of whom gave oral evidence under affirmation.
The parties had the opportunity to make opening statements, present their evidence, ask the witnesses questions, and make final submissions to the Tribunal.
I note that the Agency, after considering Ms XYZ’s evidence on the morning of 5 August 2024, sought and was granted leave to provide her with a further list of targeted questions in relation to two requested supports. The hearing resumed at 1pm on 6 August 2024 to allow time for those questions to be put, answered, and for Ms XYZ’s answers to be considered by the Agency.
Background facts
The Applicant is a young woman aged 16. She lives with impairments and disability that arise from Cowden Syndrome, Postural Orthostatic Tachycardia Syndrome (POTS), Autism Spectrum Disorder, Depression, Anxiety, and Post Traumatic Stress Disorder.
The Applicant lives with Ms XYZ, who is her mother and primary carer, in a free-standing house which is owned by Ms XYZ subject to a mortgage, on a suburban block in a regional city in Victoria. The home has three bedrooms, a bathroom, kitchen, a combined living/dining area and an external garage.[3]
[3] Joint Tender Bundle, Tab B36, Broughton Report, pages 463 – 4; Tab B37, Dewar Report, page 500; T-documents, Tab 1, “Existing and Demolition Floor Plan” Ellis Design Pty Ltd.
The Applicant’s parents are separated. She sees her father once on a weekday each week, and every second weekend. The Applicant’s father does not have active involvement in her day-to-day care.[4]
[4] Ms XYZ evidence, Transcript Day 1 page 11, line 43 to page 12, line 19.
Ms XYZ lives with a vision impairment and is also a NDIS participant. She does not have a driver’s license or own a motor vehicle. She reports having no family support and few friends.[5]
[5] Transcript Day 1, page 6, line 29 – 34; page 11, lines 1 -2.
The Applicant is home-schooled by Ms XYZ and has been since at least 2019. Ms XYZ reports that the Applicant had to be withdrawn from school due to bullying. She is reported by Ms XYZ and Mr Broughton, Clinical Psychologist, to be socially isolated.[6]
[6] Broughton Report, pages 463 - 4; Ms XYZ evidence, Transcript Day , page 9, line 44 to page 10, line 23.
On 11 August 2022, a planner delegate of the CEO approved a participant plan for the Applicant for the period 11 August 2022 to 11 August 2023 which included a statement of participant supports formulated in accordance with s 33(2) of the NDIS Act.
On 12 September 2022, the Applicant requested an internal review of that decision under s 100(2).
On 23 November 2022, the internal review delegate of the CEO decided to vary the decision under review and approve a new statement of participant supports for the period 22 November 2022 to 22 November 2023.
The Applicant continued to dispute the adequacy of the statement of participant supports that was incorporated into her participant plan, and on 18 December 2022, instituted this proceeding.
At that time several supports were in dispute, including transport funding, home modifications (installation of air-conditioning, a gradient ramp, and structural modifications to the bathroom to make it accessible for the Applicant), medium term accommodation while home modification work was completed, and the amount of funding allocated for the Applicant’s wheelchair.[7]
[7] The full- range of matters the Applicant considered in dispute at that time is set out in the Joint Tender Bundle, pages 25 – 28.
During the period this proceeding has been before the Tribunal the Agency has reconsidered its position, including because of additional information the Applicant provided concerning specific requested supports.
On 18 March 2024 a delegate of the CEO conducted a reassessment of the Applicant’s participant plan pursuant to s 48 which resulted in a decision to vary the plan in accordance with s 47A(1) of the Act (the Applicant’s current participant plan).
The Applicant’s current participant plan is expressed to commence on 18 March 2024 and has a projected reassessment date of 18 March 2025. The statement of participant supports incorporates the following support:[8]
[8] Joint Tender Bundle, Tab C4, pages 571 – 583. For privacy reasons I have omitted references to funding amounts except where those amounts are in dispute in this review.
Core supports
·Funding for repair and maintenance of a power assisted wheelchair.
·Funding for 42 days of medium-term accommodation
·Funding for a support person to assist with developing community or social skills in environments such as social events, leisure activities, and appointments
·Funding contribution of $2,676.00 towards any transport related costs incurred during the plan period to be paid fortnightly by instalments.
Capacity building supports
·Funding for a psychologist to assess and provide strategies to enhance NMFF’s ability to learn, engage socially, and promote independent living skills and employment stability in the future (an amount of funding is stated which provides for 26 hours support at NDIS payment rates).
·Funding for an occupational therapist for a full functional capacity assessment, reports around assistive technology recommendations and strategies for improving NMFF’s day to day activities (an amount of funding is stated which provides for a full functional capacity assessment and 26 hours of support at NDIS payment rates).
·Funding for a speech pathologist to assess and provide strategies to increase NMFF’s expressive communication skills.
·Funding for physiotherapy to assess and provide strategies to increase NMFF’s ability with mobility and improve quality of life.
·Funding of $5,207.28 for Level 2 Support Coordination: Coordination of Supports which is particularised as ‘52 hours of support coordination to support me to connect to, engage with and coordinate my chosen service providers to assist with my complex home modifications requirements. This support will expire at the end of the current plan period or if the hours have been fully expended’.
Assistive technology
·Funding for Assistive Technology Folding Wheelchair support to enable the purpose of Motion Composite Hello C2 Ultralight Folding Carbon Fibre Manual Wheelchair.
·Funding of Assistive Technology Power-Assist Device Technology support to enable the purchase of Alber E-Fix Power Assist Wheels.
Home Modifications
·Funding of $5,200.00 for home modifications building works project management support.
·Funding for major home modification bathroom support.
·Funding for major home modification ramp structural support.
·Funding of assistive technology air conditioning support to enable the supply and installation of a reverse cycle split system
The Applicant’s statement of goals and aspirations which is incorporated into her participant plan is as set out following.[9] As I understand the evidence, this has not changed since the Applicant’s first participant plan was issued:
[9] Joint Tender Bundle, Tab C4, pages 575 – 576.
My goals
This is what I want to achieve
Short term goal
I would like to improve my independence, specifically with self-care routines.
How will I achieve this goal
NMFF will develop strategies and skills to improve her independence with self-care routines and be more willing to engage in self-care routines.
Short term goal
I would like to develop my ability to self-manage sensory processing.
How will I achieve this goal
NMFF will develop strategies and skills to manage her emotions in regards to sensory processing in order to improve her ability to engage in her community more often and engage in self-care routines more often.
Medium or long-term goal
I would like to improve my social skills and interactions.
How will I achieve this goal
NMFF will develop strategies and skills to engage in social interactions as well as developing the strategies to exit her home to participate in social activities more often.
Medium or long-term goal
I would like to have support to maintain good mental health.
How will I achieve this goal
NMFF will be supported to maintain her overall health and wellbeing.
Medium or long-term goal
I would like to become more independent with my medical needs.
How will I achieve this goal
NMFF will be support[ed] to become more independent with her medical needs.[10]
[10] The statement of goals and aspirations also includes in relation to each goal a section entitled ‘how I will be supported’. Against each goal the following is stated: ‘my family will continue to support me; my LAC will support me to connect with service providers’.
The requested supports
As already stated, despite the variation decision, the Applicant continued to dispute the adequacy of her statement of participant supports.
On 4 April 2024 the Applicant’s Support Coordinator, Ms Gatt, provided the Agency and the Tribunal with a schedule which purported to set out the additional supports requested by the Applicant instead of, or in addition to, the supports that were incorporated into her current statement of participant supports. That document created uncertainty as it did not appear to distinguish those supports that had already been incorporated into the Applicant’s current participant plan from those requested supports that remained in dispute. It was for this reason that the Agency requested, and I conducted, a Telephone Directions Hearing on 19 July 2024 to clarify the position.
In response to the directions I made at the conclusion of that Directions Hearing, on 20 July 2024, Ms XYZ and Ms Gatt gave the Agency and the Tribunal a further document which specified the additional or alternative supports sought by the Applicant as follows:[11]
[11] Email received from Ms Gatt 20 July 2024 at 10:39am.
i.56 days of medium-term accommodation in a specified funding amount of $11,645.00, being for alternative accommodation while home modifications are completed);
ii.four hours per day of support worker assistance (instead of three; that is, one additional hour);
iii.Transport funding in the specified amount of $6,240.00;
iv.Funding for 26 hours of occupational therapy (being for fortnightly occupational therapy sessions);
v.Funding for 20 hours of occupation therapy (being for ongoing assessment during the progress of home modifications);
vi.Funding for 26 hours per year of psychology (for fortnightly sessions);
vii.Funding in the specified amount of $2,500.00 for project management of the home modifications;
viii.Funding in the specified amount of $22,000.00 for ‘school leavers employment support’;
ix.Funding in the specified amount of $35,000.00 for a wheelchair with an Efix power assist device.

The request at item ix is puzzling. Provision for that support is already included in the Applicant’s current statement of participant supports. It is therefore unnecessary to deal further with that support in the context of this review.
The requests identified at items iv and vi were also puzzling. The Applicant’s current participant plan already incorporates funding for 30 hours for occupational therapy sessions, and 26 hours for psychologist sessions which are more than or equal to the requested supports, respectively.
Nevertheless, at the outset of the hearing, counsel for the Agency advised that upon the delegate’s reconsideration of the evidence as it stood at that time, the CEO was satisfied that these supports ought to be varied (increased) as follows:
i.Occupational therapy – up to a total of 40 hours per year, comprising of 39 occupational therapy (26, 90-minute sessions, involving one hour of therapy and thirty minutes travel time each), plus 1 hour to review measurements on the Applicant’s wheelchair once it is obtained;
ii.Psychology – up to a total of 30 hours per year, comprising 26 hours of psychologist sessions plus four hours of reporting.
Ms XYZ was content with that outcome.[12] The delegate reached that conclusion upon consideration of Mr Broughton’s and Ms Dewar’s reports and recommendations. I am also satisfied based on their evidence that these additional allocations are reasonable and necessary supports that ought to be included in the Applicant’s statement of participant supports. I will therefore not address these items further in these reasons.
[12] Transcript Day 2, page 49, line 33 to page 50, line 27.
What that left in issue in this review was items i, ii, iii, v, vii, and vii in the list of supports set out at paragraph 30.
However, at the hearing outset, Ms XYZ stated that she also requested funding for Level 3 Support Coordination for 104 hours over the 1-year period of the plan. She stated that she had inadvertently omitted this request from the list of requested supports notified to the Agency on 20 July 2024.
The Agency was taken by surprise by the re-agitation of this request. While the request had been included in the schedule of requested supports prepared by Ms Gatt which was given to the Agency and the Tribunal on 4 April 2024, its omission from the list of ‘confirmed’ additional requested supports supplied on behalf of the Applicant on 20 July 2024 at the direction of the Tribunal had led the Agency to believe this request was no longer in issue. It had therefore not been addressed in the Agency’s Statement of Facts Issues and Contentions filed and served on 2 August 2024, and counsel for the Agency had not been instructed in relation to this issue prior to the hearing. Consideration of this item was thus held over until Day 2 of the hearing to enable the Agency to consider its position.[13]
[13] Transcript, Day 1, page 4, lines 6 – 28.
The evidence
Ms XYZ gave oral evidence at the hearing under affirmation. I will set out Ms XYZ’s evidence in relation to the requested supports, where relevant, following.
The Applicant called as a witness Mr Jeff Broughton who is a Clinical Psychologist in practice with Clinical Psychology Victoria. He produced a report dated 1 July 2024 and gave oral evidence under affirmation. In his report, he states he has been providing psychology services to the Applicant since early in 2019, initially via face-to-face appointments, then later via Telehealth. He states that over the past year, appointments have been approximately fortnightly. His report incorporates the outcomes of an assessment he conducted using the Vineland Adaptive Behaviour Scales (Third Edition) (Vineland-3). I will set out Mr Broughton’s evidence, where relevant, and to the extent that it is necessary to do so, in relation to the requested supports.
The Applicant also called as a witness Ms C Dewar who is an Occupational Therapist in practice with DLS Allied Health. Ms Dewar produced a report (undated) filed on 1 July 2024 and gave oral evidence under affirmation. The Applicant was referred to Ms Dewar in April 2024 for the purposes of obtaining a comprehensive functional capacity assessment. Ms Dewar used as her assessment tools WHODAS 2.0, the Vineland Adaptive Behaviour Scale, the Fatigue Severity Scale, and the Caregiver Burden Scale. Ms Dewar’s report provides a detailed analysis of the Applicant’s function across each of the life-activity areas specified by s 24(1)(c), and in relation to other matters. I will set out Ms Dewar’s evidence, where relevant, and to the extent that it is necessary to do so, in relation to the requested supports.
No issue was taken by the Agency in relation to Mr Broughton’s and Ms Dewar’s professional expertise, experience, and opinion. I am also satisfied that their evidence should be given significant weight.
The Tribunal’s role
The Tribunal’s role in undertaking this administrative review is to reach its own conclusion as to what is the correct or preferrable decision by conducting its own independent assessment of the factual matters necessary to be considered in determining if the Applicant’s requested supports are reasonable and necessary supports. This is, in essence, to do again what the original decision-maker did. In this respect, the Tribunal stands in the shoes of the original decision-maker for the review process.[14]
[14] Shi v Migration Agents Regulation Authority [2008] HCA 31; (2008) 248 ALR 390 at 422-423 [141]; 420-421 [134] per Keifel J; 423 [142]; 412-413 [100] per Hayne and Heydon JJ
The Tribunal’s role is to make the correct or preferrable decision on the material before it as it stands on the date of the hearing. This may include consideration of material not considered by the delegate who made the decision subject to administrative review.[15]
[15] Ibid, 423-424 [142]-[147] per Keifel; 413 [101] per Hayne and Haydon JJ.
In reviewing the delegate’s decision, the Tribunal may exercise all the powers and discretions that are conferred on the CEO by the NDIS Act. It may affirm, vary, or set aside the decision under review. If it sets aside the decision, it may substitute a different decision for the internal review decision or remit the access request to the CEO for reconsideration with any directions or recommendations the Tribunal considers appropriate.[16]
[16] S 43(1) of the AAT Act.
Legislative scheme
Part 2 of the NDIS Act sets out the objects and principles which guide the legislative scheme. Section 3 contains the objects of the Act, which relevantly include:
3 Objects of Act
(1) The objects of this Act are to:
…
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports … for participants
(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
…
(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
(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services …;
…
…
(3) In giving effect to the objects of the Act, regard is to be had to:
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme; …
Section 4 of the NDIS Act sets out general principles which are to guide actions under the Act. They include relevantly:
4 General principles guiding actions under this Act
(1)People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
(2)People with disability should be supported to participate in and contribute to social and economic life.
…
(4)People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5)People with disability should be supported to receive reasonable and necessary supports …
…
(8)People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives.
(9)People with disability should be supported in all their dealings and communications with the Agency … so that their capacity to exercise choice and control is maximised in a way that is appropriate to the circumstances and cultural needs.
…
(11)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.
(12)The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.
(12A)The relationship between people with disability and their families and carers is to be recognised and respected.
…
(16)Positive personal and social development of people with disability … is to be promoted
(17)It is the intention of Parliament that the … CEO … is to perform functions and exercise powers under this Act in accordance with these principles, having regard to the need to ensure the financial sustainability of the National Disability Insurance Scheme.
Chapter 3, Part 1A, s 17A, of the NDIS Act prescribes certain principles concerning the participation of people with disability in relation to Agency decision-making. It provides, relevantly:
17A Principles relating to the participation of people with disability
(1A)In performing the CEO’s functions and exercising the CEO’s powers under this Chapter, the CEO must have regard to the principles in this section.
(1)People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.
(2)People with disability will be supported in their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised.
(3)The National Disability Insurance Scheme is to:
(a) Respect the interests of people with disability in exercising choice and control about matters that affect them; and
(b) Enable people with disability to make decisions that will affect their lives; and
(c) Support people with disability to participate in, and contribute to, social and economic life.
(4)The principles in this section are in addition to the principles in section 4 to which the CEO is to have regard in performing the CEO’s functions and exercising the CEO’s powers under this Act.
Chapter 3, Part 2 of the NDIS Act deals with participants’ plans. Division 1 prescribes several principles to be applied in the development of participant plans. In this respect, s 31 provides, relevantly:
31       Principles relating to plans
The preparation, variation, reassessment 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
…
(e)consider the availability to the participant of informal support and other support services generally available to any person in the community; 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.
Division 2 of Part 2 deals with the preparation of a participant’s plan.
Section 33 sets out the matter that must be included in a participant’s plan:
33 Matters that must be included in a participant’s plan
(1)A participant’s plan must include a statement (the participant’s statement of goals and aspirations) prepared by the participant that specifies:
(a)the goals, objectives and aspirations of the participant; and
(b)the environmental and personal context of the participant’s living, including the participant’s:
(i)living arrangements; and
(ii)informal community supports and other community supports; and
(iii)social and economic participation.
(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)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 National Disability Insurance Scheme; and
(c)the date by which, and the circumstances in which, the Agency must reassess the plan under Division 4; and
(d)the management of the funding for supports under the plan (see also Division 3); and
(e)the management of other aspects of the plan.
(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.
…
(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 conduced 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 prescribes the circumstances in which support will be “reasonable and necessary” for the purposes of s33(2):
34 Reasonable and necessary supports
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations including 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 both to 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 appropriate 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).
The following principles for determining what is a reasonable and necessary support for the purposes of s 34 may be distilled from the decision of the Full Court in National Disability Insurance Agency v WRMF[17] (WRMF);
i.The supports to be provided to a person who qualifies as a participant are intended to accommodate an individual’s particular impairments and to assist that particular individual to be a participating member of the Australian community, and to do so on the basis of the values set out in the objects and guiding principles clauses of the Act, as well as the values set out in s 17A of the Act;[18]
ii.Whether a requested support is a ‘reasonable and necessary support’ will generally be a question of fact, on the evidence before the decision-maker. Subject to matters such as rationality and legal unreasonableness, there may be an area of decisional freedom in the conclusion reached by a decision-maker about whether a support is properly characterised as a ‘reasonable and necessary support. The phrase has a qualitative aspect;’[19]
iii.The phrase ‘reasonable and necessary supports’ is a composite phrase, and each limb of the phrase should be given work to do. Both adjectives are readily understood as conveying different meanings and qualify the noun ‘support’ but they do so as a composite phrase. It is not fruitful to split them off and consider them separately. Nor is it fruitful or appropriate to attempt any exhaustive or authoritative judicial definition of them;[20]
iv.The contextual use of the phrase links it to public funding to be provided to a participant. The phase therefore connotes supports which meet a threshold which justifies – by reference to the context, objects and guiding principles of the Act and the facts of the case – the expenditure of public funds for that support, for a particular participant;[21]
v.The phrase needs to be understood considering what has qualified a person as a participant, and the links between a person’s impairment and their full participation in the community. The choice of the word ‘participant’ reinforces that the driving objective of the Act is the holistic, improved, and increased participation of people with disability in the life of their communities;[22]
vi.The statutory task of determining the contents of a participant’s plan, and what are reasonable and necessary supports, is a fact-intensive exercise.[23] The circumstances of each participant will vary greatly. The exercise is highly individualised. There will be an area of ‘decisional freedom’ for the decision-maker about what supports fall within this description, given the circumstances of a particular individual. It is possible for reasonable minds exercising power under s 33(2) to differ;[24]
vii.The matters set out in s 34(1) are more than mandatory considerations because in terms s 34 requires that a decision-maker be positively satisfied about each matter. They are more in the nature of criteria of which the decision-maker must be satisfied on the material. That satisfaction must be reasonably and rationally formed, not taking into account irrelevant considerations, and taking into account any relevant considerations, but otherwise it is for the decision-maker to form the requisite state of satisfaction on the given material;[25]
viii.Participant plans are not complex documents, but they may specify a large number and wide range of supports. The task required of a decision-maker is therefore a targeted one, but it is not necessarily a complex one. The s 34 criteria are straightforward and pragmatic. The decision-maker’s approach is entitled to be of the same kind.[26]
[17] [2020] FCAFC 79; (2020) 276 FCR 415.
[18] Ibid at [141].
[19] Ibid at [143].
[20] Ibid at [150].
[21] Ibid at [151].
[22] Ibid.
[23] WRMF at [152]; McGarrigle v National Disability Insurance Agency [2017] FCA 308; (2017) 252 FCR 121.
[24] WRMF at [152]; see also National Disability Insurance Scheme v KKTB by her litigation representative CVY22 [2022] FCAFC 181 at [26].
[25] WRMF at [201].
[26] Ibid at [202].

Section 209 of the NDIS Act provides that the Minister may, by legislative instrument, make rules called the National Disability Insurance Scheme rules prescribing matters required or permitted by the Act to be prescribed in the rules or necessary and convenient to be prescribed to carry out or give effect to the Act.
Section 35 sets out the matters that may be contained in the National Disability Insurance Scheme Rules in relation to a statement of participant supports. It provides, relevantly:
35National Disability Insurance Scheme rules for statement of participant supports
(1)The National Disability Insurance Scheme rules may make provision in connection with the funding or provision of reasonable and necessary supports or general supports, including but not limited to prescribing:
(a)methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding, the reasonable and necessary supports or general supports that will be funded or provided under the National Disability Insurance Scheme; and
(b)reasonable and necessary supports or general supports that will not be funded or provided under the National Disability Insurance Scheme; and
(c)reasonable and necessary supports or general supports that will or will not be funded or provided under the National Disability Insurance Scheme for prescribed participants.
(2)The National Disability Insurance Scheme rules referred to in subsection (1) may relate to the manner in which supports are to be funded or provided and by whom supports are to be provided.
…
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (NDIS (Supports for Participants) Rules; the Rules) are made for the purposes of ss 33 and 34 pursuant to s 35 of the Act. The Rules “supplement and inform the way the criteria in s 34 need to be considered”.[27]
[27] Ibid at [221].
Part 1 of the Rules explains what the Rules are about, having regard to the overall objects and policy of the NDIS Act. Part 2 provides an outline of the Rules.
Part 3 of Rules prescribes specific Rules in relation to some of those mattes specified by s 34 of the Act. Those that are relevant in this review are set out following:
Value for money
3.1In 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;
…
(e) Whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the areas 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).
Effective and beneficial and current good practice
3.2In 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 referred literature and any consensus of expert opinion;
(b)the lived experience of the participant and their carers; or
(c)anything the Agency has learnt through delivery of the NDIS.
3.3In 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.
Reasonable family, carer and other support
3.4In 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.
…
Supports appropriately funded or provided through the NDIS
3.5 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).
3.6The matters to have regard to are set out under the following headings in the Schedule:
…
(f)Higher education and vocational education and training
…
3.7Where 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)
Schedule 1 of the Rules sets out certain considerations relating to whether supports are most appropriately funded through the NDIS. It provides, relevantly to this review:
Schedule 1 Considerations relating to whether supports are most appropriately funded though the NDIS
7.1The 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 …
7.2The 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
…
Higher education and vocational education and training
7.15The 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 and 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.
7.16The 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).
Each of the requirements of s 34(1) and the Rules must be satisfied for a requested support to qualify as a reasonable and necessary support. If the Tribunal is not positively satisfied that any one of the criteria in section 34(1) of the Rules is met in relation to a requested support, then the Tribunal must find that that support is not a reasonable and necessary support for the purpose of the NDIS Act.
The Applicant does not bear any formal onus of proof to establish that her requested supports are reasonable and necessary. Nevertheless, she claims a public benefit which will only be available to her if the statutory requirements of ss 33 and 34 of the Act and the associated Rules are met.[28] She therefore bears a practical onus of putting forward, or drawing attention to, material that persuades or satisfies the Tribunal that those criteria are met. If she fails in that task, she cannot succeed.[29]
Consideration
[28] Beezley v Repatriation Commission [2015] FCAFC 165 (2015); 150 ALD 11 at [68].
[29] HPSC and National Disability Insurance Agency [2021] AATA 727 at [85].
56 days medium term accommodation
The request for this support relates to the alternative accommodation NMFF and Ms XYZ will need to utilise while the home modifications that have been approved in NMFF’s statement of participant supports are carried out. There is no issue that NMFF and Ms XYZ will require alternative accommodation while these works are carried out. Nor, it emerged in evidence, is there actually any dispute about the number of days accommodation the Agency has approved. The real issue in dispute is in relation to the ‘daily rate’ at which the 42 days medium term accommodation has been approved.
In response to questions asked of her by counsel for the Agency, Ms XYZ explained the reason for this requested support as follows:[30]
i.her concern is about the amount of funding that’s been provided, not the number of nights approved;
ii.the Applicant and herself require a two-bedroom apartment or house and she believes the daily rate approved will not allow for this;
iii.she has no confidence that the Airbnb examples of two-bedroom accommodation in her locality the Agency has provided to her, which are at or below the approved rate, will be available at the time she needs to book this accommodation;
iv.she has no confidence that she will be able to obtain accommodation at the approved rate which has features that are essential in terms of the Applicant’s disability-related needs, such as physical access and air conditioning throughout;
v.she is concerned that she is unable to pre-inspect Airbnb properties before arrival and would have to rely on on-line descriptions as to their features, which may be unreliable;
vi.she will only be able to book accommodation when the builder confirms the start date for the building works, which may provide only be one or two-months’ notice. She is concerned that there will be very limited availability of suitable accommodation at such short notice;
vii.Airbnb requires an advance payment of accommodation fee which is forfeit if the booking is cancelled. This will be an issue if the building works are delayed.
[30] Transcript, Day 1, page 18, line 23 to page 19 line 47.
I make the following findings of fact in relation to this requested support:
i.the Project Manager’s estimated build time for the home modifications is five weeks ‘from start to finish’, which requires the Applicant and Ms XYZ to vacate their home for 35 nights;[31]
ii.the CEO has approved an additional seven nights’ accommodation above this estimate for alternative accommodation (to 42 nights) to allow for possible delay.[32] That amounts to a 20% contingency allowance;
iii.the funding the CEO has approved in relation to this support is $6,385.26 which is derived from the ‘national’ daily rate ($152.03) specified in the NDIS Pricing Arrangements and Price Limits operational policy (NDIS pricing policy);[33]
iv.the Applicant seeks approval of $11,645.00 in funding for medium term accommodation at a specified studio apartment that is available on the short-term rental market seven kms from where she and Ms XYZ live.[34] The amount sought is the quoted price for a 42-night stay. However, because that amount exceeds the NDIS pricing policy, the Applicant has requested the equivalent of 56 days at the national rate to cover the additional cost;
v.the Applicant was determined to be eligible for the ‘national’ medium term accommodation rate in accordance with the Modified Monash Model, which classifies the city in which she lives as a ‘regional centre’.[35] No argument was raised that the Applicant’s city of residence was incorrectly classified a regional centre in accordance with the Modified Monash Model and I am satisfied that this classification is correct.[36]
vi.the Applicant has impairment related needs that require medium term accommodation that is physically accessible, and which can be temperature controlled. The Applicant is a young person under the primary care of her mother. The accommodation therefore must be capable of accommodating them both with reasonable comfort, amenity (including in relation to facilities for meal preparation), and privacy (but recognising that they are a mother and teenage daughter, not unrelated adults);
vii.the Agency has provided Ms XYZ with examples of two-bedroom properties in her general locality which are available on the short-term rental market at or under the national daily rate. On their face, those examples appear to provide for reasonable comfort, amenity, and privacy.
During questioning by counsel for the Agency, Ms XYZ was unwilling to agree that any of those examples would be suitable for various reasons. She was also unwilling to accept that the examples supplied were merely indicative of what was available within the broader market.[37]
While Ms XYZ’s expressed general and specific concerns are not fanciful, the degree of pessimism that attaches to them is inconsistent with the objective evidence constituted by the Agency’s sample that there are multiple properties available on the short-term rental market in her locality that are potentially suitable. Rather, it reflects a steadfast unwillingness to move away from the more costly accommodation option she has found and prefers.
[31] Email of Mr K Warby, Project Manager, to Ms XYZ dated 9 May 2023; Joint Tender Bundle, Tab B30, page 433.
[32] NDIS Plan, Core Supports, Joint Tender Bundle, page 578.
[33] National Disability Insurance Scheme, Pricing Arrangements and Price Limits 2024-2025 (NDIS Pricing Policy) at page 47.
[34] The Support People, Plan Review Report NMFF, 4 April 204; Joint Tender Bundle, page 457.
[35] NDIS Pricing Policy, page 27.
[36] Health Workforce Locator | Australian Government Department of Health and Aged Care (accessed 28 August 2024).
[37] Transcript Day 1, page 18, line 34 to page 19 line 47.
Having regard to what I have set out above, on the evidence before me, I am not satisfied that the additional medium-term accommodation funding support sought by the Applicant is a reasonable and necessary support for the purposes s 34(1) because:
i.there are comparable supports (short-term accommodation options) in the Applicant’s locality that would achieve the same outcome at a substantially lower cost (Rule 3.1(a)).
ii.the support does not represent value for money as required by s 34(1)(c) for the same reason.
iii.the fact that the funding sought for this support is significantly above the approved rate in the NDIS pricing policy is a matter that should also be given significant weight in my view. While the pricing policy is non-statutory operational policy that is not binding upon me, nevertheless it should only be departed from where it produces an outcome that is inconsistent with the statutory scheme. One of the reasons for that is, as a matter of general principle, government policy is rationally formed, often based on extensive research and consultation. It therefore should not be lightly disregarded.[38]
In this case, the Modified Monash Model (2019) from which the ‘national rate’ has been derived is a researched and evidence-based model for estimating accommodation costs by locality across Australia that is widely used across the Commonwealth health and human service sectors.[39]
In giving effect to the objects and principles of the NDIS Act, I am required to have regard to the need to ensure the financial sustainability of the NDIS (s 3(2)(a), s 4(17)). It is common sense that the NDIS pricing policy is a foundation for the financial sustainability of the NDIS, in the sense that it controls the funding approval levels for supports.
The NDIS Act also includes as an object, facilitation of the development of a nationally consistent approach to the planning and funding of supports for people with disability (s 3(1)(f)). It is common sense that the NDIS Pricing policy is a principal means by which that object is operationalised. It provides the basis upon which participants in the scheme will be treated equally, at least as a starting point.
Of course, the NDIS Pricing policy is a guide, not a statutory rule, and it may be departed from if there are good grounds to justify such a departure.[40] However, for the reasons stated above, I am not satisfied that sufficient grounds for departure exist in this case, particularly having regard to the importance of the NDIS Pricing policy to the financial sustainability of the NDIS.
[38] Drake and Minister for Immigration and Ethnic Affairs (No. 2) [1979] AATA 179; (1979) 2 ALD 634.
[39] Modified Monash Model | Australian Government Department of Health and Aged Care
[40] Green v Daniels (1977) 51 ALJR 453.
For the foregoing reasons, I decline to approve the Applicant’s medium term accommodation support request. I am satisfied that the existing approval in relation to this item is preferable.
Support worker assistance
The Applicant requests four hours per day “Monday to Friday” in support worker assistance for Assistance with Daily Living and Social and Community Participation. The Agency accepts that Ms Dewar’s evidence establishes that an additional three hours of support worker assistance each day, that is, seven days a week, is a reasonable and necessary support which ought to be approved for inclusion in the Applicant’s statement of participant supports. The dispute concerning this requested support thus turns on the one additional hour per day of such assistance sought by the Applicant.
In her oral evidence Ms XYZ was invited by counsel for the Agency to explain why the Applicant was seeking 4 hours daily. That led to the following exchange:
Ms XYZ, you’ve also sought four hours per day of support worker assistance for NMFF. That’s correct isn’t it? --- Yes.
Thank you. You’re aware that Ms Dewar, the occupational therapist that’s assessed NMFF, recommends three hours per day in her report? --- Yes.
That’s correct isn’t it – yes. So, Ms XYZ, can you explain why in those circumstances you’re seeking four hours of support worker assistance? --- Due to the inadequate taxi funding, that’s about the hours per day we’d have to spend transporting NMFF to her appointments.
Thank you Ms XYZ. So if I can be clear, that really relates to the transport issue; it’s not in relation to the question of support worker assistance? --- Well, if you don’t give NMFF an adequate transport funding, which you are not at the moment, then I have to use her support worker money to get her to appointments and get her out socially, which is five times more expensive than me taking her in a taxi.
Ms XYZ, the question that the tribunal has to determine is what supports are in NMFF’s plan. The question I’ve asked is whether the support that you’ve requested go into her plan, the support worker assistance, is actually related to a concern you have about the level of transport funding, which is a separate support. Is that the case or not? --- Its hard – it’s hard to separate it.
Well ---? If I don’t have taxi money to take NMFF to an appointment and she has a doctor’s appointment, how do I get her there? I have to then look at what other funding we have available. …
Ms XZY, the question I’ve asked … is whether the support worker assistance you are asking for in relation to this dispute is, in substance related to the need for NMFF to be transported or is it in relation to the need for a support worker to provide her assistance with, for example, activities of daily living around the home? --- I would like to use the support worker funding for daily activities around the home, but if she needs to go somewhere and I don’t have the money, that’s what we have to use it for.
Member, I ask that the witness be directed to answer the question.
MEMBER: Yes. It’s a simple question, Ms XYZ. I think in substance you are agreeing with the proposition that Mr Noonan is putting to you, aren’t you ---? --- Yes, well --- that it’s your intention to use the additional funding referrable to the additional one hour for transport ---? --- Yes
--- not for in-home support. That’s correct isn’t it? --- Well, my preference would be use it to in-home support, but ---
But that’s not your intention in asking for it. That’s what’s being put to you? --- No, that’s my intention in asking for it. I do need some help within the home for NMFF
…
I understood you to say at least three times that you were going to use it to supplement transport funding. If that is not your evidence, you need to clarify it. ---No, what I’m saying – doesn’t matter. No. Fine. I’ll use it for just in-home help.
MR NOONAN: Well, Ms XYZ, in relation to the request for in-home help then, so you agree that the amount of in-home help that’s been recommended by Ms Dewar is three hours? --- That’s what her report says. Yes.[41]
[41] Transcript Day 1 page 20, line 1 to page 21, line 25.

In her report, Ms Dewar recommends that the Applicant be approved three hours per day support worker assistance (everyday). The rationale for this recommendation is captured in the following extract from her report: [42]
NMFF has high care needs and relies on the support of others to enable her participation in activities of daily living. Currently Ms XYZ provides all support to NMFF, however this has resulted in significant carer burnout, and has also increased financial strain as it has reduced the amount of time Ms XYZ is able to work. As a result NMFF and Ms XYZ are at risk of losing their home due to being unable to afford mortgage repayments. Access to 3 hours of support work per day would enable a support person to prepare meals and snacks for NMFF for the day, provide assistance for environmental set up (e.g. if studying or participating in group activities) and provide prompts for medication management as well as contributing to capacity building interventions.
[42] Dewar Report page 519.
In her oral evidence, counsel for the Agency took Ms Dewar to her recommendation that three hours support worker assistance be approved as a support for the Applicant, and asked her to explain the basis for it:[43]
Are you able to explain the basis for that recommendation to the Tribunal? --- As in what I would be recommending a support worker do with NMFF during that time?
Yes, and in relation to the three hours specifically, why it is that you recommended that amount? --- Yes. The balance of the three hours was in relation to, I guess, what the NDIS do consider as parental responsibility, but my recommendation came from NMFF’s care needs exceeding what I would consider to be, you know, standard parental responsibility and requiring a much higher level of care needed. So that three hours per day was in relation to being able to provide support for things like meals and meal preparation and being aware, I suppose, as well of the, I guess, the frequency and the type of meals that best meet NMFF’s sensory needs as well as the postural needs, sorry, and managing her, essentially, her fainting, which was recommended around smaller meals more frequently during the day, and, I support the needs of that that then places Ms XYZ and her ability to then also be able to participate in paid employment as well.
[43] Transcript, Day 1, page 39, lines 18 to 34.
I make the following findings of fact in relation to this requested support:
i.the Applicant is a 16-year-old young person who remains under Ms XYZ’s parental care;
ii.the Applicant’s statement of participant goals and aspirations includes objectives in relation to greater independence with self-care, and greater social interaction/participation;
iii.it is Ms Dewar’s unchallenged evidence that the reduction in functional capacity the Applicant experiences because of her impairment results in a need for support which significantly exceeds that which would, on a normative basis, be provided by a parent to a 16-year-old young person. Her assessment of the additional support, beyond normative parental support, required by the Applicant is three hours per day. I note that in her report, Ms Dewar sets out the Applicant’s degree of functional impairment across the s 24(1)(c) domains in significant detail. I have had regard to that. In the absence of any controversy concerning her assessment it is unnecessary to set this evidence out in detail in these reasons;
iv.Ms XYZ has vision impairment. This is disabling for her in her parental care of the Applicant. Ms Dewar’s assessment and recommendations take Ms XYZ vision impairment into account. There is no controversy about her findings in this regard;
v.the Applicant’s current statement of participant supports includes provision for three hours per week of community access support, Weekday Daytime rates, which can be used flexibly, (i.e., including on weekends);
vi.although Ms XZY in her evidence ultimately attempted to pivot from her immediately prior evidence to insist the Applicant required four hours support worker assistance per day, it is clear from the whole of her evidence that it is not an additional support worker hour that is the substance of this request. It is funding for transport. That is, Ms XYZ believes that she will be able to utilise funds allocated for Assistance with Daily Living and Social and Community Participation flexibly to fund the cost of taxis;
vii.The Applicant has a separate request for transport support which is being considered in this review.
Having regard to what I have set out above, I am satisfied based on Ms Dewar’s evidence that an additional three hours per day of support worker assistance ought to be approved as a support to be included in the Applicant’s statement of participant supports.
I am not satisfied that the additional hour of support worker assistance sought by the Applicant is a reasonable and necessary support for the purposes of s 34(1) because:
i.there is no evidence that indicates what additional benefit in terms of Assistance with Daily Living Skills and Social and Community Participation the Applicant would derive from this support. In this respect it does not represent value for money, as required by Rule 3.1(a) and s 34(1)(c);
ii.the requested support is not effective and beneficial having regard to current good practice as required by Rule 3.2 and s 34(1)(d). That is, it would encroach upon the support that is normative for a parent of a young person to provide. In this respect I am entitled to rely upon Ms Dewar’s expert opinion to this effect in accordance with Rule 3.3.
iii.in substance, this request concerns the Applicant’s transport costs. It should therefore be squarely dealt with under that category of support, and is, following.
Transport funding
The Applicant requests approval of $6,240.00 in funding for transport to be included in her statement of participant supports (costs of taxis and the like). This request was originally contested by the Agency. However, following the close of Ms XYZ’s oral evidence the Agency submitted some targeted questions to her which she answered overnight. At the opening of the hearing on Day 2, counsel for Agency informed the Tribunal that upon reconsideration of this request in response to Ms XYZ’s evidence and the further information she had provided, it was now satisfied that this request support was reasonable and necessary and ought to be approved for inclusion in the Applicant’s statement of participant supports to replace her existing transport funding allocation. It is therefore only necessary to deal with this requested support briefly.
I make the following findings of fact in relation to this requested support:
i.substantial funding has been provided in the Applicant’s current statement of participant supports for the purchase of a high-end folding manual wheelchair with fitted power assist technology (the wheelchair);
ii.while the wheelchair will assist the Applicant with mobility, it is not itself a viable transport option for attendance at medical, allied health and other appointments, due to the distance of these service providers from her home and her inability to tolerate extremes and fluctuations in temperature in the external environment;[44]
iii.while the Applicant does live in proximity to a local bus route, and it is an accessible bus service, the greatest frequency of service is 30 minutes. Ms XYZ gave unchallenged evidence that there is only one dock to park a wheelchair or pram on each service, and that if that is taken, it is necessary to wait to the next service.[45] That creates a risk that the Applicant will miss her appointments and be left exposed to the elements while waiting for the next service to arrive;[46]
iv.Several of the Applicant’s health service providers do not operate from the city centre of her city. This necessitates the Applicant catching a second bus from the city centre hub to reach them. Those secondary services are regular, but not frequent, and generally do not provide a direct connection with the bus service from her home. This adds to the time it takes to travel to these health service providers;[47]
v.Ms XYZ has a vision impairment and consequently does not have a driver’s licence. She is unable to drive the Applicant to appointments. She is unable to use public transport independently. The Applicant has regular contact with her father, but he does not assist her in relation to her attendance at appointments. The Applicant and Ms XYZ have no other substantial informal supports to assist with transport to appointments;[48]
vi.Ms XYZ’s claim for $6,240.00 in transport funding is calculated by using her estimate of what is required for the Applicant to attend medical and allied health appointments in person in her city and in Melbourne on a fortnightly basis, which is $240.00 per fortnight. At the conclusion of her evidence, counsel for the Agency invited Ms XYZ to submit a list of the Applicant’s medical and allied health service providers and their addresses in her city and Melbourne for the Agency’s consideration. The list Ms XYZ provided in answer to this request included medical specialists in relation to the Applicant’s health conditions, her General Practitioner, pharmacist, as well as various allied health service providers including a psychologist, occupational therapist, speech therapist and podiatrist;[49]
vii.Ms XYZ gave unchallenged evidence that over the past year the Applicant has been unable to attend certain allied health appointments, including speech therapy, due to an inability to afford taxi fares.[50]
[44] Ms XYZ’s evidence, Transcript Day 1, page 10, line 14; page 25, lines 14 – 22; Ms Dewar’s evidence, Transcript Day 1 Transcript, Day 1,page 40, line 10 to page 41, line 7.
[45] Ms XYZ’s evidence, Transcript, Day 1, page 24, lines 5 – 16.
[46] Ibid.
[47] Ibid.
[48] Transcript, Day 1, page 6, lines 29 – 33; page 11, line 43 to page 12, line 19.
[49] See further Transcript, Day 1 page 8, line 45 to page 9, line 36; page 21, line 37 to page 24, line 2.
[50] Transcript Day 1, page 7, lines 28 – 35.
Upon its consideration of the evidence set out above and perusal of that list of practitioners Ms XYZ had provided specifically, the Agency was satisfied that the transport support requested by the Applicant was a reasonable and necessary support that should be approved for inclusion in the Applicant’s statement of participant supports. I am also satisfied on the evidence set out above that this is the case.
Project management funding
The Applicant requests an additional $2,500.00 in funding for home modifications project management. During her oral evidence Ms XYZ explained her request for project management funding as follows:
… Also on whether we actually have floor plans that are going to be used or current that the builder can quote off. Are we going on the 2023 plans with widening the doorways or are we reverting back to 2022 plans where we’re not widening the doorways?
… because the project manager, he was paid his $2,500 in early 2023 to do his job. I believe, to get further quotes from a builder this down the track, I’ve been told it will cost more money to get further updated building costs. And again, I don’t know what plans we are going off; I don’t know whether we have the correct plans to get a builder to re-quote.[51]
[51] Transcript, Day 1, line 3 - 13
In his closing submissions, counsel for the Agency stated the following in relation to this requested support:[52]
The next is that of project management, and there is, in my respectful submission, still insufficient evidence demonstrating what the need actually is.
The evidence provided at the hearing yesterday is, as the respondent understands it, that Ms XYZ anticipates that there might be a need for additional works from the project manager in addressing the further potential changes to the design plans that have already been approved. The respondent first notes that there is, and already will be, $5,200 in project management included in the applicant’s plan. The respondent notes that some money on project management has already been spent by the applicant, but this $5,200 would be refreshed in any plan approved as a result of the tribunal’s decision. So the respondent contends that there is already an amount included in the applicant’s plan for further project management.
[then in response to questions from the Tribunal]
…The instructions I have is that the amount that was previously spent was spent out of a previous plan, so a plan before the one that was approved in March 2024. Under the plan that was approved in March 2024, there is $5,200 that is untouched, and as a result of any decision that the tribunal were to make, the respondent’s intention would be to provide a further $5,200. So that would not be reduced as a result of money that has been previously spent.
[52] Transcript, Day 2, page 54, line 43 to page 55, line 47.
I make the following findings of fact in relation to this requested support (doing the best I can on the evidence before me):
i.Plans for the home modifications which were approved in the Applicant’s current statement of participant supports were finalised in 2022 (the 2022 plans). That work was supported by a ‘project management’ funding allocation which was incorporated into the Applicant’s statement of participant supports at that time;[53]
ii.The 2022 plans provided for the widening of the front entry door, but not the internal doors of the Applicant’s home;[54]
iii.In the context of its later approval of the Applicant’s wheelchair, the Agency formed the view that the internal doorways of the Applicant’s home should also be widened in accordance with the applicable Australian building standards. Further home modification plans were developed or foreshadowed as a result (the 2023 plans);[55]
iv.Ms XYZ did not want the internal doorways of her home widened, essentially for two reasons. First, because it would add to the disruption caused by the home modifications (including by requiring the storage of furniture) and increase the time required for their completion. Second, because she considered it unnecessary. In this respect, it is her evidence, supported by Ms Dewar’s evidence, that the Applicant will not use her wheelchair to mobilise within her home. All that is needed is that the wheelchair can pass through the front door into the first room, after which the Applicant would independently mobilise;[56]
v.Considering Ms XYZ’s opposition to the widening of the internal doorways, the Agency no longer presses implementation of the 2023 plans. It accepts that the home modifications should proceed in accordance with the 2022 plans.[57]
vi.The Applicant’s current statement of participant supports includes provision for $5,200.00 in funding for home modification project management which would be replenished in any variation to her participant plan that is consequent upon the Tribunal’s decision in this proceeding.
[53] Transcript, Day 2, page 55, line 41 – 43.
[54] Transcript, Day 1, page 14, lines 22 -45.
[55] Ibid.
[56] Ms XYZ’s evidence, Transcript, Day 1, page 11, lines 10 – 31; Ms Dewar’s evidence, Transcript Day 1, page 41, lines 35 - 43.
[57] Transcript, Day 1, page 14, line 22 - 45.
Having regard to the evidence I have set out above, I cannot be satisfied that an additional $2,500.00 in home modification project management funding is a reasonable and necessary support that ought to be incorporated into the Applicant’s statement of participant supports. The Applicant’s statement of participant supports already includes provision for $5,200.00 for home medication project management funding. There is no evidence that indicates any insufficiency in this amount. While it may be accepted that further project management costs may be incurred in the implementation of the 2022 plans, any such costs are likely to be limited as no more extensive home modifications are now contemplated. With respect to the Rules and s 34, an additional $2,500.00 in project management funding would not constitute value for money as there is nothing which justifies this support.
School leavers employment support package
The Applicant seeks approval of $22,000.00 for a ‘school leavers employment support package’. In her opening statement Ms XYZ gave the following evidence in relation to this requested support:[58]
NMFF has a special interest in maths and is very good at it. She loves accounting, has expressed a huge interest in doing cert IV in bookkeeping so she can get a job she can do from home at her own hours and her own pace. NMFF and I have looked at the course and the hours required. It’s a 12-month, full-time course. We estimate that NMFF might need 2-3 years to do the course. I enquired with TAFE Bendigo and asked if NMFF could get some accommodations for her disability to complete the course. They refused. There is no way NMFF can complete the course in 12 months.
I phoned a provider of School Leaver funding and asked if they were able to help NMFF get the accommodation she needs to do the course. They said yes. They have done that before for other participants and will also help NMFF study. This is the reason we are asking for School Leaver funding. Without the School Leaver funding, NMFF won’t be able to do a cert IV in bookkeeping and then enable her to get a job that she can do. NMFF won’t even have a year 12 certificate due to being homeschooled.
…
I just wanted to clarify on NMFF wanting to do the cert IV in bookkeeping with TAFE and with the accommodations she needs, it’s a 12-month course, and that’s a government regulated 12 months you can only have for the course. As stated above, NMFF will probably need 2-3 years to complete the course, so we need TAFE to be able to extend the course, which they would not do for me when I just asked on NMFF’s behalf.
NMFF would probably need some of the work modified for someone to study with her. NMFF sometimes doesn’t comprehend written word and you’d have to reword it a different way. If there’s examination involved in the TAFE course, she may need extra time to do those. So there’s all those things that we need because of her disability, especially because of her fatigue and her POTS and the amount of time she would actually spend studying. We need TAFE to extend that timeframe, but they’re just not willing to do it when I phoned up and asked if she could start the course when she turns 18 in 18 months – or less than 18 months’ time. Maybe the School Leaver funding was not the correct thing for me to be asking for. I don’t know.
[58] Transcript, Day 1, page 12, line 21 – 36; page 16, line 10 – 27.
Counsel for the Agency sought further information from Ms XYZ in relation to this requested support during questions. This led to the following exchange:[59]
I understand you’ve referred to a School Leavers Employment Services provider as being able to assist in providing these accommodations that you anticipate will be necessary for NMFF to do the course. Is that correct? --- Yes. At the start of the year, I made some inquiries because, if I was going to ask for funding through the NDIS, I wanted to ensure it was funding that could be used in the way I thought it would be used. So I rang up and talked to – and I cannot remember off the top of my head who the agency was. It was one of the [city] ones that offered that School Leaver funding. I talked to them about NMFF’s situation. I said, “This is what we need. This is the accommodations we need to do the course …” and they said, “Yes, we do that with other clients. Yes we can help NMFF in this way,” and I said, “Well, that sounds fantastic. I’ll ask for that in NMFF’s NDIS plan, because that sounds like something that we would – she can benefit from.”
Are you able to explain to the tribunal what specifically those accommodations that they discussed with you are? --- They can go to TAFE or whoever we study through on NMFF’s behalf and ask for the course to be extended prior (sic) to 12 months. I’m unable to do that on her behalf. They said that they would also be able to get extensions on any tests; they would be able to look at the course material and get it adapted into a way NMFF could use it, e.g. NMFF and I like paper things, or she needs video’s pre-recorded. She can’t attend lectures at a certain time. So all – we basically went though the list of accommodations that NMFF and I put together that would enable her to be able to study, which I’m quite happy to do, so that would enable her to do the course. And at the end of the course, they would actually help her find employment in that field, in that cert IV in bookkeeping.
You can’t remember who specifically it was, though, that you soke to about this. … I don’t … remember who I spoke to …
When you discussed that with them, did you discuss the timeframe that you’ve explained to the tribunal, that you’re looking at this when NMFF was 18? - Yes. I went through everything. I said, “We want to start when she’s 18.” We’d prefer to start earlier, so in February, when the intake for TAFE – or when TAFE starts for everybody else that doesn’t have a disability, NMFF would be ready to start when she’s 18, so I envisage using some of the funding next year when she’s 17 to get her basically ready for the course and get all the accommodation she needs in place so then she can start with every other 18-year-old in February 2026.
[59] Transcript, Day 1, page 28, line 37 to page 29 line 23.

At the end of the first hearing day the Agency requested additional information from the Applicant in relation to this requested support which Ms XYZ provided prior to the resumption of the hearing on the second day.
In closing submissions Counsel for the Agency submitted the following in relation to this requested support:[60]
If I can turn then to the question of the School Leaver Supports package, there are still a number of issues in relation to what this support is and, in particular, whey the figure of $22,000 in a one-year plan has been sought. There is, further, no evidence, other than Ms XYZ, of what these supports would be. There’s been no particularisation of them, and at face value, these would appear to be supports more directly associated with accommodations being made to the program that the applicant intends to undertake rather than the kinds of supports that are used to enable a school leaver to transition directly into the work force, which is what, generally speaking, school leaver employment supports are.
However, on the evidence that is provided, if these are to be taken to be regarding the TAFE course, there are a number of factual and legal issues proceeding from that. The first is that it appears all, or at least a large majority, of these supports would begin in 2026, after the likely conclusion of any plan that would be approved as a result of the tribunal’s decision.
Second, it’s unclear what level of disability support may be provided by … TAFE as a service provider, and as an educational institution, that institution would be subject to the Disability Discrimination Act and required to make reasonable adjustments. There is simply no evidence before the tribunal of steps that have been taken to ascertain what adjustments may be available and what adjustments have been refused.
I note in that regard, though, that the evidence is that …TAFE have indicated that it could not extend the completion time of the course beyond 12 months, and if it is the case that that’s not something that is a reasonable adjustment, if, for example, that’s something linked to its accreditation that simply cannot be moved, it’s hard to see ow the provision of support such as School Leaver Employment Supports or supports however they’re categorised would be able to change that situation. So whichever way this is looked at, there are problems with the factual feasibility of these supports, even if the evidence were there.
However, lastly even if those matters were overcome, there is an issue of law here as it appears that this package of support is not primarily a package of transitional supports but ones that are, as Ms XYZ has described, related to accommodations that need to be made for the delivery and assessment of the certificate program. And in the respondent’s submissions, those are matters that appear to fall squarely within rule 7.14 of the Supports for Participant Rules as supports that the NDIS will not be responsible for insofar as they are personalising either learning or supports for students that relate primarily to their educational attainment.
So the respondent’s position in respect of this support is that there is insufficient evidence before the tribunal, but that, on the evidence available, this is a support that does not appear to be practically feasible whichever way it’s looked at and which also, even if it were sufficiently particularised, would not be the responsibility of the NDIS under the relevant rules to fund.
[60] Transcript, Day 2, page 56, line 16 to page 57, line 18.
I make the following findings of fact in relation to this requested support:
i.The Applicant is 16 years-of-age. The earliest time she will complete her secondary education is at the end of 2025;
ii.The currency of the Applicant’s current participant plan is 18 March 2024 to 18 March 2024. That is, the plan is scheduled to be re-assessed more than six months before the earliest time the Applicant will finish school;
iii.“School Leaver Employment Supports” are described on the NDIS website under the section “for providers” as follows:[61]
[61] School Leaver Employment Supports | NDIS (accessed 2 September 2024).
Delivering school leaver employment supports
School leaver employment supports help participants who have difficulties in the areas of learning, social interaction and elf-management to move from school to work and are available in the final years of school and directly after leaving school.
Providers who deliver school leaver employment supports help young people prepare, look for and gain employment. They provide meaningful, individualised capacity building activities so young people can achieve their employment goals.
As part of managing a participant’s employment barriers, providers can:
·Support a participant’s unique pathway to employment
·Help foster partnerships and goodwill in the local community
·Use their professional networks to engage and connect with employers.
How school leaver employment supports work
School leaver employment supports funding builds a participant’s ability and confidence to enter the workforce.
The NDIS can fund school leaver employment supports for up to two years, depending on the participant’s circumstances. Funding beyond the initial two years depends on progress and likelihood of an employment outcome.
Each school leaver’s employment supports will be different. The following skills may be part of an individual program of supports to help participants get ready for and gain employment: money handling; time-management; communication; discovery activities; work experience; job readiness; independent travel; personal development.
iv.The Disability Standards for Education 2005 (the DSE) are formulated pursuant to s 31 of the Disability Discrimination Act 1992 (Cth) (DDA). Under s 22 of the DDA it is unlawful for an education provider, which includes an “educational authority” to discriminate against a person on the ground of that person’s disability. The DSE clarify and elaborate the legal obligations of educational authorities in relation to education.[62] Parts 4 to 8 of the Standards specify how education and training is to be made accessible to students with disability with respect to enrolment, participation, curriculum development, accreditation and delivery, student support services, and the elimination of harassment and victimisation.
v.TAFE institutes are educational authorities for the purposes of the DDA and DSE[63] and are therefore obliged to comply with the requirements of those instruments in the provision of education and training.
[62] Disability Standards for Education 2005 (Cth), Introduction.
[63] See the definitions of “education provider” and education authority in s 4 of the Disability Discrimination Act 1992 (Cth) and clauses 1.5 and 2.1 of the Disability Standards for Education 2005 (Cth).
Having regard to the evidence set out above, I cannot be satisfied that this requested support should be approved for inclusion in the Applicant’s statement of participant supports.
First, the Applicant’s statement of goals and aspirations does not contain any reference to further education and training or transition to work. The support therefore does not relate to the Applicant’s statement of goals and aspirations. The Applicant will not leave school, or be close to leaving school, before the reassessment date for her current plan. If this support were to be incorporated into the Applicant’s current plan it would not be utilised.
Second, and in any event, the requested support lacks sufficient specificity to enable proper consideration of it. It is not immediately apparent how the support described by Ms XYZ could fall within the scope of the School Leaver Employment Support program funded by the NDIA as that program is outlined above. That program is focused on transition to work, not transition to further education, or support to participate in further education. There is no quotation or program outline or similar from a potential provider of the requested support that particularises what activities and services it would provide that would constitute this requested support. In the absence of any evidence from such a provider, it is impossible to know if the support described by Ms XYZ is capable of being provided. In these circumstances I could not be satisfied, as I must be, that the requested support represents value for money in that the costs of the support are reasonable (Rule 3.1(a) and s 34(1)(c)).
Third, in substance, and in any event, the support described by Ms XYZ as being required by the Applicant are adjustments to curriculum, course materials, teaching methods, assessments and the provision learning assistance. Those are matters covered by the DSE. Rule 7.15 of the NDIS (Supports for Participants) Rules precludes such support being provided by the NDIS because it is most appropriately funded or provided by the further education and training system in accordance with reasonable adjustments required by the DSE (s 34(1)(f)(ii)).
Level 3 Support Coordination
Ms XYZ did not refer to her request for Level 3 Support Coordination in her opening statement (other than to indicate this request remained before the Tribunal) and nor did counsel for the Agency question her about this request.
The only evidence that I can find that relates to this requested support is set out following:
i.In section 8 of the NDIS Plan Review Report prepared by Ms Gatt, Support Co-ordinator, The Support People, dated 4 April 2024 it is stated that that Agency had commenced providing the Applicant with Support Coordination services on 19 March 2024 and that 15 hours of such support had been expended by 4 April 2024. It describes The Support People’s current level of engagement with the Applicant as “2-3 times per week – 2 hours weekly” and the Applicant being “high complex” and as requiring 2 hours per week Specialised Support Coordination (or 104 hours over the one-year plan).[64] The Support People did not offer Ms Gatt, or any other person, to give a statement of evidence in relation to the Applicant’s request for Level 3 Specialised Support Coordination;
ii.In his report Mr Broughton states in recommendation 7: “given the complexity of NMFF’s disabilities and support needs, I recommend Level 3 specialist support coordination;”[65]
iii.In her report Ms Dewar recommends the following in relation to support co-ordination;[66]
Support Coordination
·Ongoing funding for Support Coordination – …
Justification
·NMFF has complex disability and health care needs that require additional input to adequately meet her needs and facilitate goal achievement. This includes the implementation of support work, the facilitation of other disability support needs recommended in this report.
[64] Joint Tender Bundle, Tab B35, page 461.
[65] Broughton report, Exhibit 1 (Joint Tender Bundle, Tab B36, page 471).
[66] Dewar Report, Joint Tender Bundle, Tab B27, page 520.
I make the following findings of fact in relation to this requested support.
i.The Applicant’s current participant plan provides funding for Level 2 Support Coordination which is 52 hours per week (the equivalent of 1 hour per week);
ii.The Agency’s Operational Guidelines describe support coordination as follows:[67]
[67] Support coordination | NDIS (accessed 2 September 2024).
What is support coordination?
Support coordination helps you to make the best use of your supports in a plan. Support Coordination is capacity building support which helps you to:
·Understand and use your NDIS plan to pursue your goals
·Connect you with NDIS providers, community, mainstream and other government services.
There are three levels of support coordination that can be included in your plan:
1.    Support connection – This support is to build your ability to connect with informal, community and funded supports enabling you to get the most out of your plan and pursue your goals.
2.    Support coordination – coordination of supports. This support will assist you to build the skills you need to understand and use your plan. A support coordinator will work with you to ensure a mix of supports are used to increase your capacity to maintain relationships, manage service delivery tasks, live more independently and be included in your community.
3.    Specialist support coordination. This is a higher level of support coordination. It is for people whose situations are more complex and who need specialist support. A specialist Support Coordinator will assist you to manage challenges in our support environment and ensuring consistent service delivery.
iii.The Agency’s Operational Guidelines describe Level 3 Specialist Support Coordination in the following terms:[68]
[68] Specialist support coordination | NDIS (accessed 2 September 2024).
What is specialist support coordination
Specialist support coordination is a higher level of support. The focus is on reducing complexity in the participant’s support environment and helping the participant overcome immediate and/or significant barriers in plan implementation.
Specialist support coordination helps participants:
·Address complex barriers that affect their access to supports
·Design a service plan for their support needs, where appropriate
Who provides specialist support coordination
Specialist support coordination is delivered by a specialist support coordinator. Specialist support coordinators should be appropriate qualified and experienced to deliver the expert approach which is needed to address a participants complex support needs and/or risks in their environment.
Specialist support coordination activities
Address complex barriers.
Specialist support coordinators should help overcome complex barriers that affect participants’ ability to access and maintain appropriate supports. They should work with participants, their families and carers to:
·Identify and understand the barriers impacting on the participant’s ability to access, use and maintain their supports
·Find and try solutions to address these barriers
·Establish a process to overcome these barriers, including prioritising factors that need to be addressed first and what supports need to be in place immediately.
On the evidence before me, I cannot be satisfied that Level 3 Specialist Support Coordination is a reasonable and necessary support that ought to be included in the Applicant’s statement of participant supports. I am not satisfied that it constitutes value for money in that this additional cost is not justifiable having regard to the Level 2 Support Coordination the Applicant already has available to her (Rule 3.1(a) and s 34(1)(c)). I reach that conclusion for the following reasons.
First, The NDIS Plan Review Report prepared by The Support People, which is the Applicant’s current Support Coordination provider, insofar as it recommends Level 3 Specialist Support Coordination, should be approached with caution. The Support People is not a disinterested party with respect to this request and there is a risk that its recommendation is self-serving. While such a recommendation should not be disregarded, it should only be given significant weight where there is detailed and transparent evidence as to why this level of Support Coordination is recommended, and why the current level of Support Coordination is insufficient. The NDIS Review Plan Report does not meet this standard and there is no other evidence offered by The Support People in relation to this recommendation.
Second, Ms XYZ did not explain in her evidence why the Applicant’s current level of Support Coordination funding is insufficient or what is sought to be achieved with Level 3 Specialist Support Coordination that could not be achieved with the Applicant’s current Level 2 Support Coordination funding.
Third, while the Applicant’s current plan involves a degree of complexity in that it encompasses home modifications which will require the temporary relocation of the Applicant and Ms XYZ from their home, there are substantial “one-off” funding allocations for occupational therapy and home modifications project management which will enable the Applicant to manage that complexity. Both Ms Dewar and the builder/project manager are already engaged. They do not need to be sourced by the Applicant’s Support Coordinator.
The Applicant and Ms XYZ may require some assistance to identify suitable temporary alternative accommodation and in relation to relocation to and from that accommodation before and after completion of the building works. However, realistically, that is not likely to require more than an average of one-hour support coordination a week.
Fourth, otherwise, the Applicant’s circumstances are not complex. She has complex health conditions and impairments derivative of those conditions certainly, but she also has very substantial supports available to her in her statement of participant supports, particularly as varied by the outcome of this review. She is a young person who enjoys the fierce advocacy support and day to day care of her mother, Ms XYZ. There is very little risk that her reasonable needs will not be met in these circumstances.
It is clear from the Agency’s Operational Guidelines that Level 3 Specialist Support Coordination is intensive support coordination intended for circumstances of urgency and complexity where a participant lacks sufficient access to supports necessary for their and well-being due to barriers that must be overcome. That does not describe the Applicant’s circumstances.
Fifth, having regard to these findings I note but do not accept Mr Broughton’s recommendation that Level 3 Specialist Support Coordination is warranted in the Applicant’s case. I accept Ms Dewar’s and Mr Broughton’s recommendations to the effect that support coordination is a reasonable and necessary support for the Applicant, but I am satisfied that Level 2 Support Coordination is sufficient to meet the Applicant’s needs.
Conclusion
For the foregoing reasons, the decision under review is set aside and remitted to the Agency for reconsideration with directions that the Applicant’s statement of participant supports be varied in incorporate $6,240.00 in funding for transport, 30 hours for psychology, 40 hours for occupational therapy, and three-hours per day of support worker assistance. With respect to the other supports requested by the Applicant, I am satisfied that the requested home modifications project management support is already incorporated into the Applicant’s participant plan. In relation to the other requested supports, being additional funding for medium term accommodation, an additional one-hour per day of support worker assistance for self-care, funding for a school leaver’s employment support package, and Level 3 Support Coordination, I am not satisfied that any of them are reasonable and necessary. I therefore decline to direct the CEO to incorporate these items into the Applicant’s statement of participant supports.

I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of Member P French

..........................[SGD]..............................................
Associate
Dated: 6 September 2024

Date(s) of hearing: 5 and 6 August 2024

Applicant:
Ms XYZ, Applicant's Parent

Counsel for the Respondent: Mr T Noonan

Solicitors for the Respondent: Ms A Dupe, Maddocks Lawyers

Date(s) of hearing:	5 and 6 August 2024
Applicant:	Ms XYZ, Applicant's Parent
Counsel for the Respondent:	Mr T Noonan
Solicitors for the Respondent:	Ms A Dupe, Maddocks Lawyers