NZGW and CEO, National Disability Insurance Agency (NDIS)
[2025] ARTA 1035
•14 July 2025
NZGW and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1035 (14 July 2025)
Applicant/s: NZGW
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2024/4088
Tribunal:General Member N Purcell
Place:Sydney
Date:14 July 2025
Decision:The Tribunal, pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth) sets aside the decision under review and remits the matter for reconsideration in accordance with the following orders:
$500 be included in the Applicant’s SOPS under low-cost assistive technology.1.
The following supports are not reasonable and necessary support and should not be included in the Applicant’s SOPS:2.
VJ panelling totalling $48,860.a.
Concrete pathway to the right side of the house totalling $4,540.b.
Concrete pathway to the left side of the house totalling $21,230.c.
Exposed aggregate path to the rear of the house totalling $2,145.d.
Grab rails totalling $4,719.e.
Slip resistive tiling f.
Air conditioners totalling $22,235.g.
Fans totalling $2,543.h.
Security screens totalling $19,462.i.
Nursery (additional room) $32,362.j.
Fifth bedroom (additional room) $23,222.k.
Family room (additional room) $34,720.l.
Elevated kitchen bench - $6000.m.
Induction cooktop.n.
All other supports in the Applicant’s current plan, 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 SOPS.3.
....................[SGD]....................................................
General Member N Purcell
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – participant supports – transitional supports rules – NDIS support – standard items – home modifications.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024.
CASES
Beezley v Repatriation Commission [2015] FCAFC 165
Esber v The Commonwealth (1992) 174 CLR 430
Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Mulligan v National Disability Insurance Agency [2015] FCA 544
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
FSWN and National Disability Insurance Agency (NDIS) [2025] ARTA 114
Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607VPYC and The CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 3
SECONDARY MATERIALS
Operational Guidelines – Reasonable and Necessary supports, 28 March 2025.
Operational Guidelines – Home Modifications, 7 April 2025
Operational Guidelines – Home Modifications – Guidance for Builders and Designers (undated)
Statement of Reasons
INTRODUCTION
The Applicant is a 10-year old girl who lives with her parents and 4 brothers in a regional town of Queensland. She met the access requirements in June 2016 in relation to impairments arising from DDX3X syndrome. The Applicant also lives with several other conditions including cerebral palsy, agenesis of the corpus collosum, global developmental delay, generalised epilepsy and seizures.
The Applicant’s ‘younger’ brothers, aged 7 and 11, are also NDIS participants. The Applicant’s older brothers are 25 and 30 and have recently returned to live at home after many years living out of home.
The family currently lives in a home which requires the Applicant’s parents to carry her up and down a flight of stairs to access the property. The Applicant’s parents purchased a parcel of land on which to build a new 7-bedroom home which would be accessible for the Applicant. The parents engaged a construction firm to build the home based on a house package subject to a range of variations. The parents contend the Respondent should fund the variations to the house package.
The Applicant was represented by her Father who is a child representative pursuant to section 74(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).
DECISIONS UNDER REVIEW
On 14 August 2023, a delegate of the Respondent approved a statement of participant supports (SOPS) under section 33(2) of the NDIS Act. On 19 October 2023, the Applicant requested an internal review of the decision pursuant to section 100(2) of the NDIS Act.[1] The Father requested the inclusion of 21 additional supports, each representing a ‘modification’ to the building of a new home.
[1] T10 of JHB.
On the 10 May 2024, the delegate decided to vary the SOPS (reviewable decision) as follows:
(a)5 of the requested supports were, in whole, reasonable and necessary supports which should be included in the Applicant’s SOPS;
(b)1 of the requested supports (VJ panelling), was in part, a reasonable and necessary support which should be included in the Applicant’s SOPS;[2]
(c)15 of the requested supports were not reasonable and necessary and should therefore, not be included in the Applicant’s SOPS.
[2] The Respondent varied the original decision and decided to fund VJ panelling in parts of the new home as a reasonable and necessary support totalling $19,016 which comprised $6,651 in the Applicant’s bedroom, $9,027 in the hallway and $3,338 in the family room. The Applicant sought an additional $29,844 of funding for VJ panelling across the rest of the house, totalling $48,860.
On 18 June 2024, the Applicant filed an application seeking external review by the Administrative Appeals Tribunal (AAT) pursuant to section 100(6) of the NDIS Act. The AAT was abolished on 13 October 2024 and the Administrative Review Tribunal (ART) began on the 14 October 2024. By virtue of the transitional arrangements, NZGW’s application was automatically transferred to the ART.[3]
[3] See Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).
The reviewable decision resulted in a new plan covering the period 10 May 2024 to 10 May 2025 (Current Plan). Pursuant to section 103(2)(e) of the NDIS Act, the Applicant’s application for external review by this Tribunal is also taken to be a review of the decision to approve the SOPS in the current plan. As the matter was still before the Tribunal on 10 May 2025, the plan was automatically extended to 10 May 2026.
Issues in dispute
The issue before the Tribunal is whether the Applicant’s request for funding of the following 16 supports are reasonable and necessary pursuant to section 34 of the NDIS Act and any relevant rules.
(a)VJ panelling totalling $48,860.
(b)Concrete pathway to the right side of the house totalling $4,540.
(c)Concrete pathway to the left side of the house totalling $21,230.
(d)Exposed aggregate path to the rear of the house totalling $2,145.
(e)Driveway with a ramp in the amount of $9,920.
(f)Grab rails totalling $4,719.
(g)Slip resistive tiling (unknown amount).
(h)Air conditioners totalling $22,235.
(i)Fans totalling $2,543.
(j)Security screens totalling $19,462.
(k)Nursery (build / modify additional room) – totalling $32,362.
(l)Fifth bedroom (build / modify additional room) – totalling $23,222.
(m)Sixth bedroom (build / modify additional room) – totalling $36,146.
(n)Family room (build / modify additional room) – totalling $34,720.
(o)Elevated kitchen bench - $6000.
(p)Induction cooktop.
The hearing
The Father represented the Applicant at hearing. The Respondent was represented by Mr Aaron Hartnett of Counsel and instructed by Maddocks lawyers.
The hearing was conducted by video over 3 days. The following witnesses gave oral evidence at the hearing:
(a)the Applicant’s Father
(b)the Builder engaged by the Applicant’s parents
In arriving at its decision, the Tribunal has considered all the written evidence provided in the joint hearing bundle (admitted and marked ‘JHB’) and the oral evidence given at the hearing. The following documents were also admitted into evidence:
(a)E1 – Applicant’s NDIS plan dated 10 May 2024
(b)E2 – Doc 10912 (Plans) 20250410140552546v11 – [construction firm] construction house plan
(c)E3 – Image of house plan with red and blue pen markings
(d)E4 – Preliminary agreement dated 9 November 2022 between Applicant’s parents and [construction firm]
(e)E5 – Indulgence Series Inclusions
(f)E6 – Doc 10912 (Plans) 202505151312522958v13 – [construction firm] house plan (“flipped version”)
(g)E7 – Indulgence price list
(h)E8 – Indulgence images
(i)E9 – Doc 32-Premier 283 (basic house plan)
(j)E10 – 10912 (Specification) 2024091805055718v17
(k)E11 – Variation price list
(l)E12 – 10912 (Contract) 20240918050603887
(m)E13 – Tile selections
(n)E14 – 10912 (Colour Selections SIGNED) 20250515131652679
(o)E15 – Direction dated 14 November 2024
(p)E16 – Direction dated 10 December 2024
(q)E17 – NZGW and NDIA (20244088) Respondent’s suggested evidence
(r)E18 – Re 20244088 – Email exchange between Respondent lawyers and Applicant’s father dated Aug and September 2024
(s)E19 – Applicant’s closing submission dated 13 June 2025
(t)E20 – Respondent’s closing submissions dated 13 June 2025.
The Tribunal will refer to the evidence that is directly relevant to the determination of this matter.
Role of the Tribunal
In reviewing the decision:
(a)the Tribunal stands in the shoes of the delegate/internal reviewer and must make the correct or preferable decision based upon the evidence and other material before it;[4] and
(b)the scope of the Tribunal’s jurisdiction is determined by reference to the scope of the internal reviewer’s powers under section 100 of the NDIS Act, which is in turn informed by the scope of power under section 33(2) of the NDIS Act.[5]
[4] See Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [37]-[38], [45]-[46] (Kirby J), [99] (Hayne and Heydon JJ), [143] (Kiefel J). Esber v The Commonwealth (1992) 174 CLR 430 at 440; Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250 at [51]; QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.
[5] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 at [7].
The relevant provisions under the new Administrative Review Tribunal Act 2024 (Cth) (ART Act) are sections 54 and 105.
RELEVANT LAW
The NDIS was established under the NDIS Act. Its objectives are set out in section 3 and its general principles guiding actions taken under the NDIS Act are set out in section 4. Section 3(1)(c) and (g) relevantly states the objectives of the Act are to support the independence and social and economic participation of people with disability and to promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community.
A participant’s plan must include a statement of participant supports, approved in accordance with section 33 of the NDIS Act, and any rules made under the NDIS Act.
The National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Cth) came into force on 3 October 2024, changing several key provisions. The Act introduced a new section 10 regarding a definition of NDIS support and amended section 34(1)(f). These changes apply to the Applicant’s SOPS and must be considered by the Tribunal.[6] Relevantly, section 10(4) states:
Supports that are not NDIS supports
(4) The National Disability Insurance Scheme rules may declare that a support is not an NDIS support for:
(a) participants or prospective participants generally; or
(b) a class of participants or prospective participants.
Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).
(5) Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (4), the Minister must be satisfied:
(a) for rules to which paragraph (4)(a) applies—that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or
(b) for rules to which paragraph (4)(b) applies—that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.
[6] Subitem 129(2) of Schedule 1 of the Amending Act provides that if a statement of participant supports is approved or varied on or after 3 October 2024, the amendments apply irrespective of whether the Applicant’s plan came into effect before, or on or after commencement.
Subsection 34(1) of the NDIS Act now relevantly states:
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(aa)the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is an NDIS support for the participant.
Note: For the purposes of paragraph (aa):
(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b) a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).
The Tribunal must be positively satisfied about each of the matters set out in section 34(1) of the Act.[7] The Applicant carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.[8]
[7] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [201].
[8] For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).
Under subsection 209(1) of the Act, the Minister may make rules prescribing certain matters including the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (‘the Supports Rules’).
The National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth) (‘the Transitional Supports Rules’) introduce several key changes. Schedule 1 identifies supports that are considered NDIS supports while Schedule 2 identifies those that are not considered NDIS supports.
The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[9]
[9] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
EVIDENCE AND CONSIDERATION
The recent decision of FSWN and National Disability Insurance Agency (NDIS) [2025] ARTA 114 sets out the relevant procedure for considering supports since the Amended Act came into effect on 3 October 2024.
- Having regard to the provisions of the principal Act as amended, the Transitional Rules, and the Supports Rules, the structure of the enquiry involved in this review involves two stages and the following steps:
Stage 1 Ascertain if the requested support is an “NDIS” Support as defined. This inquiry is focused on the support, not the participant.
Step 1: Determine if the requested support is of a character that falls within the scope of a category of support specified in column 1 of the Table to Schedule 2 of the Transitional Rules by reference to the description of supports that fall within the scope of that category contained in column 2 of the Table.
If the answer to that question is “yes”, then stage 1 is complete. The requested support is not a NDIS Support and cannot be approved for inclusion in a SoPS because of s 34(1)(f) (subject to a replacement support determination being made, as to which see following).
If the answer to that question is “no”, then proceed to step 2 of stage 1:
Step 2: Determine if the requested support is of a character capable of falling within the scope of a category of support specified in column 1 of the Table to Schedule 1 of the Transitional Rules by reference to the description of supports that can fall within the scope of that category contained in column 2 of that Table.
If the answer to that question is “no”, then the requested support will not be a NDIS Support and cannot be approved for including in a SoPS because of s 34(1)(f).
If the answer to that question is “yes”, then the requested support will be a NDIS Support that is capable of being approved for inclusion in a SoPS by operation of s 34(1)(f), and stage 2 of the enquiry is reached.
Stage 2: Ascertain if the requested support satisfies each of the other criteria specified in s 34(1)(aa) to (e) and the associated Supports Rules. There is some overlap of the stage 1 and 2 enquiries. However, in my opinion stage 2 is primarily a participant focused enquiry. That is, it seeks to establish the benefit of the support to the participant. To the extent that stage 2 also requires examination of the efficacy of the support per se it adds nothing to the outcome of the stage 1 enquiry in my opinion.
- The question of whether a requested support is, or is not, a NDIS support is a mixed question of fact and law. The issue of fact to be determined is whether the requested support falls within a category of items specified in column 1 of the Tables to Schedules 1 and 2 of the Transitional Rules. If it does, it will either be, or not be, a NDIS support by operation of law.
- It is important to observe that in the scheme of the Transitional Rules it is not sufficient to find that a support is not excluded as a NDIS Support by operation Schedule 2. It must also be found to be included as a NDIS Support by Schedule 1. That is, both Schedules have work to do in determining what is not a NDIS Support. To illustrate this point using absurd examples, a giraffe, hot-air balloon, and space craft are not excluded as NDIS supports by Schedule 2, but they are incapable of falling into any of the categories of NDIS Supports in Schedule 1. They are therefore not NDIS Supports by operation of Schedule 1, rather than Schedule 2.
- If a requested support is not a NDIS Support by operation of the Transitional Rules, the criteria specified by s 34(1)(f) of the principal Act as amended cannot be satisfied. Section 34(1) is conjunctive in its terms, as is indicated by use of the words ‘the CEO must be satisfied of all of the following ...’ (emphasis added). As each of the requirements of s 34(1) must be met before a support can be approved for inclusion in a SoPS there is no utility in considering if the requested support meets the other requirements of that section. The enquiry ends with the determination that the requested support is not a NDIS support.
The Tribunal will consider the requested supports in line with this approach. This does not necessitate a detailed recalling of the evidence presented at hearing.
Schedule 2, Items 1 and 19 of the Transitional Supports Rules identify relevant supports in this application for review.
Item 1 – Day-to-day living costs (accommodation and household) include:
The following:
…
(b) purchase of land, or house and land packages;
(c) standard home security and maintenance costs, fencing, gates and building repairs;
…
(e) standard home repairs, home improvements, standard renovations and maintenance.
(i) standard household (including garden) items, appliances, tools and products;
(j) standard furniture, fixtures or fittings.
Item 19(b) – ‘Housing and community infrastructure’ – “housing for people with disability, other than participants eligible for specialist disability accommodation” is not a NDIS support.
Schedule 1, Item 22 – ‘Home modification design and construction’ identify relevant supports that are NDIS supports:
Supports that design, change or modify a participant’s home to help the participant live as independently as possible and to live safely at home. This includes the following:
(a)Installing equipment or changing a building’s structure, fixture or fittings;
(b)Internal and external building modifications to remedy damage arising exclusively from disability-related behaviours or use of NDIS funded assistive technology or equipment;
(c)Regulatory certification requirements for works.
VJ panelling totalling $48,860.
VJ panelling is not excluded by Schedule 2 of the Transitional Support Rules. It is captured by Schedule 1 of the Transitional Supports Rules under Item 22(b). The Tribunal will proceed to consider whether the support is reasonable and necessary.
The Respondent’s internal review of the decision varied the original decision to fund some of the VJ panelling requested by the Applicant. The Respondent agreed to fund a total of $19,016 for VJ panelling comprising $6,651 for the Applicant’s bedroom, $9,027 for the entry hallway and $3,338 for the family room. The Applicant sought an additional $29,844 for VJ panelling across the rest of the home, totalling $48,860.
The Respondent formed the view that it was reasonable and necessary to fund this part of the VJ panelling because of the following evidence provided prior to hearing:
(a)In a letter dated 19 March 2025, the Applicant’s Occupational Therapist (OT) reported VJ panelling had been privately funded in the Applicant’s current home “because of the damage [the Applicant’s] wheelchair and walker was doing to the walls”.[10]
(b)The Applicant’s parents also asserted the Applicant’s equipment had previously put holes into their walls stating:
Funding for VJ Paneling- We have this in our current home after [the Applicant’s] equipment put holes into our walls previously. We are hoping that the VJ paneling will also be put into all requested rooms such as Nursery, Family, Bed 6, Support Worker, Dining as well as all corridors as these are places where either we spend a lot of our time as a family or [the Applicant] accesses as she roams around and explores as she often does being a highly inquisitive child. [The Applicant] is needing her wheelchair and walkers more as she gets older and we want to make sure that home is set up for her future equipment needs.
Whilst NDIS has already partially funded a small area they deem [the Applicant] will utilise as her current age our request is encompasing her growth and accessing all areas of the house which if not now, she will undoubtedly in the next few years and to try re-sheet the walls in VJ at a later date would not be cost effective.
(Errors in orig.)[11]
[10] JHB, p476.
[11] JHB, p486.
The Father gave oral evidence which contradicted his prior claims that the Applicant’s equipment caused damage to the walls, including:
(a)The Applicant’s 25-year older brother, when he was a child, used “to dig out big holes in the gyprock with spoons and stuff and, like, kick holes in the walls”.
(b)The Father “got sick of repairing them”.
(c)At the time, a builder suggested VJ panelling. It was “only $2.00 a square meter more”. So, when they renovated his father-in-law’s house (where they currently live) they put VJ panelling through the entire property.
(d)The VJ panelling was already in place before the Applicant was born.
(e)The Applicant mainly uses her walker inside the home or leans on furniture. The wheelchair is predominantly used outside the home.[12]
[12] Father’s oral evidence.
The Tribunal observes there was no evidence about the likelihood of the Applicant transitioning to an electric wheelchair for use either inside and/or outside the home.
The Father asserted “but if it was gyprock, we know that there would be holes in the walls because she goes up, she smashes her iPad against the wall”.[13] There was no other corroborating evidence, noting the OT attributed damage to the walls to the Applicant’s wheelchair and walker.
[13] Father’s oral evidence.
The Tribunal is not satisfied that the Applicant’s equipment has caused holes or damage to her current home in the manner described in the written evidence. The Tribunal is not satisfied on the evidence that there is a likely risk of damage to walls, now or in the future. If damage to the gyprock occurs in the future that is attributable to the Applicant’s disability, the Applicant may submit a change in circumstances form and seek remediation of any damage through a plan reassessment (under section 48 of the NDIS Act).
The Tribunal finds pursuant to section 34(1)(aa) that the requested support is not necessary to address the needs of the Applicant arising from an impairment in relation to which she meets the disability requirements. For the reasons provided above and in circumstances where the Tribunal is not satisfied that the Applicant needs VJ panelling to prevent damage to the walls, funding for VJ panelling, as requested, is also not value for money pursuant to section 34(1)(c). Funding for VJ panelling should not be included in the Applicant’s SOPS.
Concrete pathways $27,915
If facing the front of the property, the pathways include[14], the:
(a)left side of the house totalling $21,230.
(b)right side of the house totalling $4,540.
(c)rear / backyard pathway totalling $2,145.
[14] The ‘flipped’ or council approved plans - see E2.
The costs were taken from a variation to contract document dated 5 April 2024.[15] The costs for the pathways in this document total $27,915.
[15] T31 of JHB, p290.
Counsel asked the Father about an earlier bill of quantities document which quoted 110 m2 of concrete for $15,730 and 8.2 m2 for $1,172, totalling $16,902.[16] The Father was unable to confirm when the bill of quantities document was provided or explain the discrepancy in cost beyond inflation. Counsel also asked the Father about an ‘Indulgence Building Specification’ document dated 15 May 2023 which allowed for 30m2 “for pathway to LHS of house” however the purpose of that concrete remained unclear.[17]
[16] C24 of JHB, p499-500.
[17] T10 of JHB, p82. The Tribunal understands this to refer to the pre-flipped plan and represents the ‘narrower’ pathway.
The Father contended that a continuous 1200mm pathway around the house was needed so the Applicant can walk on a stable surface around the entire property. He suggested that if the Applicant’s mobility improves when she is older, she will need to access the clothesline on the right side of the property. He was unsure whether that area of a new build would ordinarily be paved or concreted to avoid muddy ground for all occupants of the home, stating, “I would not have a clue, never even thought about it”.[18]
[18] Father’s oral evidence.
The builder gave evidence that any concreting around the property, including under the clothesline, is not a standard inclusion in the house package.[19]
[19] Builder’s oral evidence.
The Respondent contended in their SOFIC (footnotes omitted):
40. To the extent that the request for the construction of the perimeter pathways relates to the Applicant’s eczema condition, the Tribunal cannot be satisfied that the support is necessary to address a need arising from an impairment for which the Applicant meets the access criteria (s 34(1)(aa)). To the extent that the perimeter pathways represent a home improvement or standard renovations, they are not NDIS supports (s 34(1)(f)).
41. One external pathway is generally an NDIS supports to the extent that the pathway facilitates ingress and egress to a participant’s home in a way that takes account of the participant’s disability. Section 5 of the HM Builder Guidance Policy explains:
If it’s supported by clinical evidence, we can fund an external continuous accessible path of travel to enable the participant to safely enter and exit their home. The NDIS funding criteria allow for a pedestrian path of travel from the front boundary or the car parking area, to one accessible entrance of the dwelling.
42. The Applicant will have access to accessible entry and exit from her home via the stepless front porch and the driveway.[20]
[20] JHB, p14.
The Father contends the Respondent should cover all the costs associated with a continuous pathway 1200mm wide around the property. He did not distinguish between the pathway the family might ordinarily install and any additional costs associated with modifying the pathway to make it accessible for the Applicant. It was also unclear to the Tribunal why the pathway needs to be 1200mm wide in circumstances where NDIS Home Modifications – Guidance for Builders and Designers document indicates a new path of travel, or a ramped dwelling entrance should be 1000mm unless there is clinical justification based on a need for a wider wheelchair or mobility aid.[21] There was no evidence of this before the Tribunal.
[21] JHB, p625.
The Tribunal does not accept that the area around the parameter of the new build would be left ‘untreated’ by the Applicant’s parents. For example, the Tribunal is of the view that the area under the clothesline on the right side of the property would be paved or concreted regardless of whether the Applicant uses the clothesline, now or in the future. Similarly, the area adjacent to the back door would ordinarily be concreted or paved for the convenience of any person living in a home, particularly a new build. The Tribunal considers a pathway around some or all of the home is a standard home improvement and is excluded by Schedule 2 Item 1(e).
The Tribunal is the of the view that a modification to some or all of a standard pathway could mean the modification is not excluded by Schedule 2 if there was sufficient evidence to demonstrate that the pathway has been modified or adapted to address the functional impairments of the participant in line with section 4 of the Transitional Support Rules. (The definition of standard items is discussed in more detail below).
However, the Father did not submit evidence demonstrating the cost-difference between the standard pathway the family would install for use by members of the family who do not require mobility devices and the cost of widening the pathway so that it is accessible for the Applicant. Had the Father provided evidence of the cost of the modification, the Tribunal may have been able to find that a modified pathway is (or at least could be) a NDIS support pursuant to Schedule 1 Item 22 and proceeded to consider whether the requested pathways satisfy the remaining criteria in section 34(1).
It should be acknowledged that on the 23 September 2024[22] and 28 November 2024, the Respondent’s lawyers wrote to the Father recommending that he provide a range of information including “invoices or quotes for each of the requested supports, confirming the amount requested”.[23] Unfortunately, for the Applicant, the Father did not provide this evidence. In these circumstances, the Tribunal could not, for example, be satisfied that the support is value for money (section 34(1)(c)).
[22] E20, p1.
[23] E17
The Tribunal finds the three pathways, as conceived, are standard home improvements and are not a NDIS Support pursuant to Schedule 2 Item 1(e) of the Transitional Support Rules. Section 34(1)(f) is not met.
Grab rails totalling $4,719 (and rear exit ramp)
Prior to the hearing, the Respondent indicated its confusion regarding this request:
52. The Respondent does not understand the particulars of the Applicant’s request for grab rails on the material before the Tribunal. The building contract refers to internal grab rails not being included in the scope of works for the building contract. There is a line item in the contractor’s bill of quantities document identifying that an amount of $4,719 represents an ‘[a]llowance to supply and install stainless steel modular rail to pathway and ramp’. The Respondent understands that this is not a reference to internal grab rails but, rather, an external railing installed in proximity to the driveway.
53.There are references in the CHM AT to rails in different parts of the home. For example, there are references to support railings for the requested perimeter pathway supports which are in contention (see, above). However, there is no clear evidence justifying the installation of rails in proximity to the driveway (nor that this is requested as a support, despite the description in the bill of quantities).
54.If this support relates to a request for rails that are to be internal to the home or in proximity to the disputed perimeter pathways, there is insufficient evidence to satisfy the Tribunal as to the cost of those proposed rails. The Tribunal could not be satisfied that this requested support represents value for money (NDIS Act, s 34(1)(c)). Further, if the Tribunal were not satisfied that the perimeter pathways were reasonable and necessary supports (for the reasons above) occasion to instal rails would only arise if the Applicant funded one or more concrete paths of the type proposed. The Respondent repeats its contentions about the requested perimeter pathways.
55.To the extent that the rails are only proposed to be situated in proximity to the driveway, there does not appear to be a reference to this in the CHM AT or the reports of the Applicant’s occupational therapists. The Tribunal could not be satisfied that there is sufficient evidence on which it could determine that this support is reasonable and necessary for s34(1).
The Father told the Tribunal he was planning to install a ramp off the back patio to the backyard, explaining there will be stepless exit from the patio to a level area at the top of the ramp. The ramp is intended to slope down in both directions to the left and right sides, with a modular handrail.
For reasons which were unclear, the Father did not make a separate request for a ‘back-door’ ramp, and it was not considered as part of the Respondent’s internal review process. That does not prevent the Tribunal considering the support, however it meant there were no clear drawings or specifications provided to the Tribunal including the dimensions and gradient of the proposed ramp. Some details were provided in the documentary evidence with respect to a driveway ramp but that was an entirely different request.[24] The evidence from practitioners was limited and expressed in general terms. An OT wrote on 19 March 2025:
It is highly recommended that all entry’s (sic) and exits to the home be ramped. It is not anticipated that [the Applicant] will be able to safely and easily manage steps and stairs. Even on ‘good days’ [the Applicant] is safer walking up/down a ramp than a step. [The Applicant] will not be able to manage steps on the days where she needs her wheelchair more.[25]
[24] See JHB, p15.
[25] JHB, p476.
Further, the evidence around cost was unclear and premised on the inclusion of pathways as a NDIS support and a reasonable and necessary support. The following information was included in the Bill of Quantities:
Allowance to supply and install stainless steel modular rail
to pathway and ramp - $4,719.00
Supply and install exposed aggregate pathway - $5,190.90
Additional allowance for ramping of pathway - $500.50.[26]
[26] JHB, p301.
In the variation to contract document, item 16 states:
Supply and install stainless steel modular rail to LHS ramp, porch ramp and LHS corner (includes 3 rails).[27] (Tribunal’s emphasis)
[27] JHB, p290.
The builder confirmed that the driveway was a standard inclusion and there was a step-free entrance at the front of the property.[28] It was therefore unclear to the Tribunal what portion of the $4,719 for the modular rails was originally intended for the ‘porch ramp’ when such a ramp was never required at the front of the property.
[28] The builder’s oral evidence.
The builder explained that the slab height from the back patio is 400mm and his company would usually add one step for a client, however “it’s not a requirement to have any concrete paths or steps out of a house on a standard 400mm high slab”. He indicated a ramp was designed so that “the slope is sufficient for a wheelchair to be able to roll up there and enter and exit the out of the patio”.[29]
[29] The builder’s oral evidence.
The Tribunal understands from the builder’s evidence that the construction firm often add a step at the back exit of new builds as a matter of curtesy for clients, however it is not a requirement to have a gradated exit from a house sitting 400mm off the ground. The Tribunal does not accept the premise that the parents would leave a 400mm ‘drop-off’ from the back door if the Applicant did not intend to use that doorway. The Tribunal considers some form of gradated exit from a home sitting on a 400mm slab to be a standard home improvement and is excluded by Schedule 2 Item 1(e).
The Tribunal is the of the view that a modification to a standard exit from a home could mean the modification is not excluded by Schedule 2 if there was sufficient evidence to demonstrate that the exit has been modified or adapted to address the functional impairments of the participant in line with section 4 of the Transitional Support Rules.
However, the Father did not provide this evidence, either in the form of specifications or a detailed quote. Further, he did not provide evidence of the cost-difference between the standard gradated exit the family would install for use by members of the family who don’t require mobility devices and the cost of making the exit accessible for the Applicant. Again, it was confusing why the Father did not provide more evidence in relation to this support, particularly in circumstances where the Respondent had identified for him the types of evidence that may assist the Tribunal to make its decision.
Had the Father obtained a quote for the installation of a ramp and/or rails which clearly identified the additional costs associated with its construction beyond an ‘ordinary’ or standard exit, the Tribunal may have been able to find that a modified exit is (or at least could be) a NDIS support pursuant to Schedule 1 Item 22 and proceeded to consider whether the requested support satisfies the remaining criteria in section 34(1).
The figures provided in the bill of quantities cannot properly be considered a quote in circumstances where the builder said the railing work would be performed by a subcontractor and the original figure was provided in reference to 3 different locations including “LHS ramp, porch ramp and LHS corner (includes 3 rails)”.[30] Further, the ramp was not costed separately to the pathway. Accordingly, the Tribunal could not, for example, be satisfied that the support is value for money (section 34(1)(c)).
[30] JHB, p491.
Without sufficient evidence to demonstrate that modifications to the backdoor exit address the functional impairments of the Applicant, the Tribunal finds a gradated backdoor exit is a standard home improvement and not a NDIS Support pursuant to Schedule 2 Item 1(e) of the Transitional Support Rules. Section 34(1)(f) is not met.
Based on the reference to an “additional allowance for ramping of pathway” the Respondent offered to include $500 in the Applicant’s low-cost assistive technology budget to be used to purchase a temporary or portable ramp. Once the home is completed and there is greater clarity about the backyard configurations and pool, it is open to the Applicant to seek funding for a more permanent exit through a change in circumstances form. Such a request, will of course, be considered in line with the legislative requirements.
Elevated kitchen bench - $6000.
An elevated kitchen bench is not excluded by Schedule 2 of the Transitional Support Rules. It is captured by Schedule 1 of the Transitional Supports Rules under Item 8 – Assistive Products for Household tasks. The Tribunal will proceed to consider whether the support is reasonable and necessary.
The CHM – AT outlines the rationale for the modifications to the kitchen bench as follows:
To accommodate a suitable workspace for [the Applicant] to participate in kitchen meal prep activities which she enjoys; adjustability will make it suitable for standing or seated and as she grows to need higher bench top with large seated or standing mobility equipment.
The Father gave evidence that the Applicant had used a step to access the kitchen bench at home, but he recently got rid of it because he kept stubbing his toes on it.
The builder indicated he didn’t know the details of the kitchen bench and how it was adjusted. The Father also indicated he could not be sure whether the requested support was still included in the council approved home design.
The Tribunal accepts that the Applicant enjoys cooking and helping in the kitchen. The Father’s evidence suggests the Applicant requires supervision when cooking and used a step in the kitchen previously. It is unclear to the Tribunal why a step could not be used in the new house, given the Applicant is 10 years of age. The Tribunal also observes that many cooking related tasks routinely performed by children can be done at a kitchen table.
In circumstances where the Applicant is engaging in limited, age-appropriate cooking tasks and is not responsible for preparing her own meals, it seems premature to fund a $6000 adjustable bench. The Applicant’s cooking preferences and needs are most appropriately assessed in her teenage/early adult years. The Tribunal is not satisfied on the evidence that the adjustable bench is value for money. Section 34(1)(c) is not met.
Construction of four new rooms and ‘other housing costs’
Schedule 2, Item 19(b) of the Transitional Supports Rules excludes “housing for people with disability, other than participants eligible for specialist disability accommodation” (SDA).
The Macquarie dictionary defines ‘housing’ as the ‘provision of houses or other accommodation for the community’.
The Respondent made the following submission (footnotes omitted):
73. …The primary contention is that the construction supports, to the extent that they are ordinary incidents of acquiring a desirable house for the Applicant and her family to live in, are not NDIS supports. In addition to the Transitional Rules declaring generally that ‘housing’ is not an NDIS support (see, paragraph 57 above), the Transitional Rules declare for s10(4) of the NDIS Act that the following are not NDIS supports:
(a) the purchase of land or house and land packages are not NDIS supports; and
(b)standard home repairs, home improvements, standard renovations and maintenance.[31]
[31] JHB, p19.
In the Tribunal’s view, Item 19 of Schedule 2 reflects the long-standing position set out in Rule 7.20 of the Supports Rules that:
The NDIS will not be responsible for:
(a) the provision of accommodation for people in need of housing assistance, including routine tenancy support and ensuring that appropriate and accessible housing is provided for people with disability; or
(b) ensuring that new publicly-funded housing stock, where the site allows, incorporates Liveable Housing Design features; or
(c) homelessness-specific services including homelessness prevention and outreach, or access to temporary or long term housing for participants who are homeless or at risk of homelessness; or
(d) the improvement of community infrastructure, ie accessibility of the built and natural environment, where this is managed through other planning and regulatory systems and through building modifications and reasonable adjustment where required.
Schedule 2, Item 1(e) excludes “standard home repairs, home improvements, standard renovations and maintenance” as being considered a NDIS support.
The Macquarie dictionary defines ‘improvement’ as “a change or addition whereby a thing is improved, a bringing into a more valuable or desirable condition, as of land, or something done or added to land which increases its value”. ‘Renovation’ is defined as “a project of making repairs or alterations to an existing building”. The Tribunal considers that adding a room to an existing home is most appropriately defined as a renovation whereas adding a room to the design of a new home is more likely an improvement. The Tribunal observes both renovations and improvements can increase the value of the house or property.
A standard item is defined in section 4 of the Transitional Support Rules as “an item that is not modified or adapted to address the functional impairments of the participant or prospective participant”.
‘NDIS support’ and Transitional Supports Rules
Through its recent legislative amendments, the Parliament has made significant changes to the operation of the NDIS by introducing the concept of ‘NDIS support’. The Explanatory Statement to the Transitional Supports Rules states:
Defining NDIS supports will make it easier for participants and other members of the disability community to identify what is appropriately funded by the NDIS, and what NDIS funding can be used to purchase.
The general descriptions of the kinds of supports that are NDIS supports in the Instrument and in participant’s plans will continue to provide participants with choice and control over how they spend their plan while also returning the NDIS to its original intent, consistent with the recommendations of the NDIS review.
In the current planning framework (now known as the ‘old framework’), the definition of NDIS support clarifies the boundaries of what supports are reasonable and necessary under section 34 of the NDIS Act. This is an essential step to ensure that participants are able to continue receiving the supports they need as a result of their disability for many years to come.
In the new budget-based planning framework, reasonable and necessary supports will be replaced by reasonable and necessary budgets. This means the definition of NDIS supports has an even more important role in guiding participants to understand the supports that are able to be funded by the NDIS, as most supports will no longer be identified in participant’s plans.[32] (Tribunal’s emphasis)
[32] p1-2.
To the Tribunal’s mind, the definition of ‘standard item’ in section 4 of the Transitional Support Rules is the operative definition at the first stage of the inquiry – that is, to determine whether a requested support, as a matter of law, is a NDIS support pursuant to section 10. If a requested support is considered a standard item, it will be excluded by the Transitional Support Rules as a NDIS support regardless of the individual circumstances of participant and/or the merits of their application more generally. Section 34(1)(f) is the relevant provision which operates to exclude the support as reasonable and necessary from an Applicant’s Statement of Participant Supports – but the ‘work’ to determine whether a support is a NDIS support is completed pursuant to section 10 and the Transitional Support Rules. In the Tribunal’s view, the operation of section 10 and the Transitional Support Rules does not permit consideration of the reasonable and necessary criteria and associated evidence when determining whether a support is a NDIS support or not. As the Explanatory Statement to the Transitional Supports Rules states:
Power to make the Instrument
Section 10 of the NDIS Act allows the Minister to make NDIS rules declaring what supports are, and are not, NDIS supports. These rules are Category A NDIS rules made under section 209 of the NDIS Act. Items 124 and 138 of Schedule 1 to the Amending Act allow the Minister to make a transitional rule for the purposes of section 10.
The Instrument is not an NDIS rule, but rather a transitional rule that will remain in place only until NDIS rules are made for the purposes of section 10 under section 209. It is necessary to have a transitional rule in place for a period of time to allow time to develop and agree the final NDIS rule.
…
Before making rules declaring what supports are not NDIS supports, the Minister must be satisfied that the support is not appropriately funded or provided through the NDIS.[33]
[33] , p3-4
If a requested support is not excluded by Schedule 2 and is captured by Schedule 1, it is capable of being considered a NDIS support and the relevant decision maker can then proceed to consider broader considerations pursuant to section 34(1), the Supports Rules and relevant operational guidelines.
Standard item
As discussed, this Tribunal considers the definition in section 4 alone determines whether an item is a standard item or not. A standard item is one “that is not modified or adapted to address the functional impairments of the participant or prospective participant”.
The terms modified or adapted are not defined in the Act or the Transitional Support Rules. The Macquarie dictionary defines ‘modified’ as ‘to change somewhat the form or qualities of; alter somewhat. It defines ‘adapted’ as ‘to make suitable to requirements; adjust or modify fittingly’.
The meaning of the term ‘impairment’ was recently discussed in the decision of Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607:
[24] In the context of s 24(1)(a), and Chapter 3 of the NDIS Act more generally, the term “disability” has a specific meaning, being a functional outcome that is attributable to specified categories of impairment. The concept of impairment is distinct from the concept of ‘disability’, and from a diagnosed health condition. Care needs to be taken not to conflate these separate concepts or use them interchangeably. Failure to maintain this conceptual distinction may lead to a misapplication of the access provisions.
[25] The term ‘impairment’ is not defined in the NDIS Act. However, the Agency’s operational guidelines define it to mean “a loss of or damage to your body’s function”. I note that this conceptualisation of impairment for the purposes of s 24(1) was specifically approved by the Court in Davis.[34] That definition is a simple rendering of the definition of impairment[35] used in the application of the International Classification of Functioning Disability and Health (ICF), which is “a problem of body function or structure such as a significant deviation or loss as compared with typical or expected function or structure”.[36]
[34] At [118] referring to [113].
[35] World Health Organisation (2002), Towards a Common Language for Disability, Functioning and Health, ICF, Geneva, WHO/EIP/GPE/CAS/0.1.3 (WHO (2002) at page 2.
[36] World Health Organisation, (2011), International Classification of Functioning, Disability and Health, Geneva: International Classification of Functioning, Disability and Health (ICF)
The term ‘functional’ is also not defined in the Act or the Transitional Rules. In Mulligan v National Disability Insurance Agency [2015] FCA 544, the court found:
[55] Using the concept of impairment enables assessment of the severity and permanency of a person’s condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates a relatively high degree of precision by decision makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.
Section 24(1)(c) of the Act uses the term functional capacity. It highlights the relevant causal connection between a person’s impairment or impairments and the effect on their functional capacity – essentially a person’s ability to do certain tasks or not.
In VPYC and The CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 3, which concerned a request for a weighted blanket, the same Tribunal grappled with the question whether a modification or adjustment was required, for example, at the time of manufacturing or production of an item and/or during a process of prescription or recommendation by an allied health clinician.[37] Having considered the provisions further, this Tribunal is of the view that section 4 requires a specific modification or adjustment to the item itself which addresses, or responds to, the functional impairments of the individual participant.
[37] At [111]. It should be noted that nothing turned on that distinction in that decision, with the Tribunal proceeding on the basis that the blanket could be a NDIS support but finding it was not reasonable and necessary pursuant to section 34(1)(e).
Nursery (build / modify additional room) – totalling $32,362.
The proposed nursery is adjacent to the parent’s bedroom and was sought so the parents could monitor the Applicant’s seizures at night.
By way of background, the Father told the Tribunal that the Applicant had her first tonic-clonic seizure (previously known as grand mal seizure) in about 2020 or 2021. The Father indicated he and his wife have woken up to about 8 tonic-clonic seizures since then, stating “and that’s just the ones we have woken up to”. He also mentioned the Applicant’s mother and OT are aware of a seizure monitor.[38]
[38] Father’s oral evidence
The Tribunal invited the Father to provide more information about the seizure monitor including how it operates and what it detects, noting the Father’s evidence that he works night shifts and doesn’t necessarily always wake up to the Applicant’s seizures. This evidence was not provided. In circumstances where an OT has been actively involved with the family and the risk of seizures has been raised, it seemed unusual to the Tribunal that the Father could not provide any further information about a device that might more reliably raise the alarm in the case of his daughter having a tonic-clonic seizure.
The Father also told the Tribunal:
·The Applicant has always slept in a cot beside the parent’s bed (as a young baby) and in their bed ever since.
·One of the younger brothers started having night terrors and the other brother didn’t want to be in his bedroom alone, so all three children aged 7, 10 and 11 now sleep with the parents.
·The parents have two queen size bed joined together to accommodate the three younger children in their bedroom.
·The parent tried putting the Applicant in her own room when she was 4 or 5 years of age, but she would crawl back into their room if she woke up.
·The Applicant will eventually sleep in the nursery and may not move into her own room until she is 14 or 15, or possibly over 20 years of age.
·The Applicant’s bedroom would be used to store her clothes and other belongings.
·The Applicant will use the ensuite attached to her bedroom which will have grabrails, shower-seat and other modifications to make it accessible.[39]
·Once the Applicant moves into her own bedroom, they will use the nursery if the Applicant is sick and needs help during the night. There was also evidence they intended to use the space as a therapy room.[40]
[39] These modifications were not in dispute – the Respondent previously found modifications to the Applicant’s bathroom were a NDIS support and reasonable and necessary.
[40] JHB, p469.
There was no evidence of any modification to the planned room to address the functional impairments of the Applicant.
There was evidence that the design of the new home was modified or adapted, ostensibly to address the functional impairments of the Applicant. The Tribunal does not consider the design of a new home to be the relevant item for consideration. As previously stated, the Respondent is not responsible for housing for people with disability, other than participants eligible for specialist disability accommodation.
The Tribunal is not satisfied the nursery has been modified or adapted to address the functional impairments of the Applicant. The Tribunal finds the nursery is a standard improvement pursuant to Schedule 2 of the Transitional Support Rules and is therefore not a NDIS support. Section 34(1)(f) is not met.
Fifth bedroom (build / modify additional room) – totalling $23,222.
The Father told the Tribunal the following:
·The room is intended to be used by a future support worker – “we want the room built so that way we can have a support worker under her funding and under the NDIS”.
·The Applicant does not have a support worker. He contended this was because there is nowhere for a support worker to stay. “So that’s why we wanted to have the room in place there so we could then utilise the support worker and be able to like have some time off one a month or something where we can have a night off or whatnot”.
·He was unsure whether the Applicant had ever requested support worker assistance because his wife does the plan reviews and talks to the planners.
·The family had previously been offered respite by the Respondent, but they didn’t take it.[41]
[41] Father’s oral evidence.
The Tribunal is satisfied that the Applicant does not have funding for a support worker in her SOPS. There was no evidence about the likelihood of the Applicant needing inactive overnight support from a support worker now or in the future.
There was no evidence of any modification to the planned room to address the functional impairments of the participant.
The Tribunal is not satisfied the fifth bedroom has been modified or adapted to address the functional impairments of the Applicant. The Tribunal finds the fifth bedroom is a standard improvement pursuant to Schedule 2 of the Transitional Support Rules and is therefore not a NDIS support. Section 34(1)(f) is not met.
Sixth bedroom (build / modify additional room) – totalling $36,146.
The Father withdrew his request for the sixth bedroom at hearing. This room was intended for the Applicant’s two younger brothers.
Family room (build / modify additional room) – totalling $34,720.
There was no evidence of any modification or adaptation to any of the 4 rooms except the family room. The Father told the Tribunal the family room was separated from the open plan dining area and the walls would be sound-proofed so the Applicant can play music and dance. The Father acknowledged in his evidence that the rest of the family would also use the space.[42]
[42] Father’s oral evidence.
The builder explained that the soundproofing was to “nullify the noise in the family room” if the Applicant was watching a movie and there were other people in the house.[43]
[43] Builder’s oral evidence.
The Tribunal finds the modification of sound proofing to the family room is to manage noise from a TV and/or sound system in a home which will be shared by 4 adults and 3 children. The Tribunal is not satisfied the family room been modified or adapted to address the functional impairments of the Applicant.
The Tribunal finds the family room is a standard improvement pursuant to Schedule 2 of the Transitional Support Rules and is therefore not a NDIS support. Section 34(1)(f) is not met.
Driveway with a ramp in the amount of $9,920.
The Father withdrew his request for this support at hearing.
Induction cooktop.
Schedule 2, Item 1(i) of the Transitional Supports Rules excludes ‘standard household (including garden) items, appliances, tools and products’ from being considered a NDIS support.
In VPYC and The CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 3, the Tribunal observed:
126. The Tribunal is satisfied that the KloudSac, a foam filled bean bag alternative, is a type of household furniture that is routinely used as a sofa or bed. The fact that not every household has a KloudSac does not mean it is not a standard household item – most houses have a sofa/couch and/or bed for its occupants to rest on. Similarly, whilst it appears the Applicant’s schools have provided KloudSacs for use by students with sensory disabilities, this does not mean the KloudSac has been modified or adapted in either a general or specific sense – it is simply a different type of furniture. For the avoidance of doubt, the Tribunal accepts the KloudSac is a type of furniture that students living with ASD may prefer and the Applicant clearly derives some comfort from using it, despite not in accordance with its intended use as a type of furniture.
The Tribunal finds that an induction cook top, whilst not installed in every home, is a standard household item or appliance – it has not been modified or adapted pursuant to section 4 of the Transitional Supports Rules. It is not a NDIS support and section 34(1)(f) is not met.
Slip resistive tiling (unknown amount).
Schedule 2, Items 1 (b) and (j) of the Transitional Supports Rules excludes ‘house and land packages’ and ‘standard furniture, fixtures or fittings’ from being a NDIS support.
Carpets and tiles are standard inclusions in the house package.[44]
[44] E5.
In line with the reasoning above, there is no evidence that the selected tiles have been modified or adapted to address the Applicant’s functional limitations. The Tribunal is satisfied that the proposed tiling, whether non-slip or otherwise, is a standard fixture and part of the house package and is therefore not a NDIS support. Section 34(1)(f) is not met.
Air conditioners totalling $22,235.
Schedule 2, Items 1(b) and (j) excludes ‘house and land packages’ and ‘standard fixtures’, being considered a NDIS support.
The Father told the Tribunal he was requesting about 7 air conditioners for the house, which excluded the bedrooms for the two older brothers. He indicated he did not know how many air conditioner units were included in the house package.[45]
[45] Father’s oral evidence.
The builder gave evidence that he had a conversation with the Father about standard inclusions including air conditions and fans “so that was all clear at the beginning”. He said the home package includes an air conditioning unit in each room and possibly two depending on the size of the room, for example, the kitchen/dining area. “We don’t put them in bathrooms, toilets or laundries, but we put them in theatre rooms, open plan living areas and bedrooms”.[46]
[46] Builder’s oral evidence.
The builder explained that if more bedrooms are added to the house design, then more air-conditioning units are included. A standard calculation is used to determine what size kilowatt unit should be used in a particular room or space. The builder indicated he was surprised when another client recently advised he did not want air conditioning in his new home. He explained “we actually had problems getting through energy assessment… we had to make sure the windows were big enough so the breeze would come through so that the house would be cool enough”. He confirmed a request to exclude air-conditioners would reduce the standard price of the house package.[47]
[47] Builder’s oral evidence.
The Tribunal is satisfied on the evidence that:
(a)it is normal or standard practice for air conditioning units to be included in newly built homes and highly unusual for people not to want air conditioning in Queensland;
(b)air conditioning is included in the home package purchased by the Applicant’s parents; and
(c)the number of air conditioning units is tied to the number of rooms in the house.
The Tribunal finds that air conditioning units form part of the house package and is a standard fixture which has not been modified or adapted to address the functional impairments of the Applicant pursuant to section 4 of the Transitional Supports Rules. Air conditioning units are not a NDIS support and section 34(1)(f) is not met.
Fans totalling $2,543.
The builder gave evidence the standard home package includes a fan in each room and possibly two depending on the size of the room. If an additional room is added to the design, an extra fan is included.
For the same reasons provided in relation to air conditioning, fans are not a NDIS support and section 34(1)(f) is not met.
Security screen door totalling $19,462.
Schedule 2, Items 1(c), (e) and (j) of the Transitional Supports Rules excludes ‘standard home security’, ‘standard home improvements and renovations’ and ‘standard fixtures’ from being considered a NDIS support.
While the Tribunal accepts that the security doors may have the added benefit of safety for the Applicant, security doors (including fly-wire or mesh) are commonly used as a form of security, air flow and bug prevention. There was no evidence that the proposed security doors have been modified or adapted to address the functional impairments of the Applicant.
The Tribunal finds that security screen doors are part of standard home security, a standard improvement and/or a standard fixture – they have not been modified or adapted pursuant to section 4 of the Transitional Supports Rules. Security screen doors are not a NDIS support and section 34(1)(f) is not met.
Date(s) of hearing: 3 – 5 June 2025 – by video Applicant: Applicant’s Father Counsel for the Respondent: Mr Aaron Hartnett Solicitors for the Respondent: Ms Diyanna Mimtas, Maddocks
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