Padgham and Chief Executive Officer, National Disability Insurance Agency (NDIS) - [2025] ARTA 2309

Padgham and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2025] ARTA 2309 (31 October 2025)
Applicant:Matthew Padgham
Respondent: Chief Executive Officer, National Disability Insurance Agency
Tribunal Number: 2023/7634

Tribunal:General Member A Colvin
Place:Brisbane
Date:31 October 2025

Decision: The Tribunal affirms the decision under review.

.............SGD......................
General Member A Colvin
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – National Disability Insurance Scheme Act 2013 (Cth) – consideration of section 34 – reasonable and necessary supports – support workers – support that is not face-to-face support – day planning – handover – making file notes – reporting to behaviour support practitioner – whether support is operational cost of service provider – whether support is duplication of supports – NDIS Pricing Arrangements and Price Limits 2025-26.
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 (Cth)
National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth)
Cases
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
National Disability Insurance Agency v WRMF [2020] FCAFC 79
GJDB and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3245
FMDP and National Disability Insurance Agency [2025] ARTA 2225

FSWN and National Disability Insurance Agency [2025] ARTA 114
Secondary Materials
NDIS – Operational Guidelines
Statement of Reasons
BACKGROUND

Mr Mathew Padgham is 33 years old and a participant in the National Disability Insurance Scheme (NDIS). He was granted access to the NDIS based on impairments arising from autism spectrum disorder (ASD). He also has intellectual disability.
As an NDIS participant, Mr Padgham has a plan that includes a statement of participant supports (SOPS). His current plan commenced on 1 September 2025 and is the result of the parties to this proceeding reaching agreement on a broad range of matters. The SOPS in his current plan now contain total funding for one year of $696,430.11.
There was however one matter on which the parties to this proceeding were unable to reach agreement, and which is now the sole issue to be determined in this review.
On 5 days/week Mr Padgham attends a day program provided by Bedford Services & Advisory Ltd (Bedford Group). Mr Padgham’s current plan includes funding to support his attendance at the Bedford Group’s day program on a 1:1 basis 5 days/week.
On Mr Padgham’s behalf, it is contended that additional funding should be included in the SOPS in his current plan to fund non-direct support provided by Bedford Group comprised of time spent each day by support workers in planning for Mr Padgham’s day, making file notes and reports, and participating in handovers.
This non-direct support is calculated to amount to 2.5 hours/week (the claimed support). The rate at which it is asserted that the claimed support should be funded is not clear but I understand it to be the weekday daytime rate at which his attendance at the day program is funded. If that support is provided for 52 weeks/year, it would amount to approximately $9,100 in additional funding/year in Mr Padgham’s SOPS.[1]
[1] Joint tender bundle (JTB) at 592.
On Mr Padgham’s behalf it is contended that this non-direct support is a necessary incidental cost to supports that are included in his SOPS. However, the Respondent contends, in essence, that this non-direct support is an operational function of Bedford Group and that the NDIS price limits for support workers account for such tasks. In its view, funding those tasks would therefore duplicate a support that is already funded.
The history of this matter is that on 29 June 2023, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (Agency) approved a SOPS in a plan for Mr Padgham (the 2023 SOPS). That decision was varied on internal review on 21 September 2023 but still did not fully fund the two supports sought at that time on Mr Padgham’s behalf. These were 24/7 1:1 supported independent living (SIL) and 80 hours of support coordination. As a result, on 2 October 2023 Mr Padgham applied (through his support coordinator) to the Administrative Appeals Tribunal (AAT), now the Administrative Review Tribunal.[2]
[2] From 14 October 2024, the AAT became the Administrative Review Tribunal. Applications for review to the AAT that were not finalised before that date are taken to be an application for review to this Tribunal, and this Tribunal has authority to continue and finalise any aspect of the review not already completed by the AAT. See the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024.
The matter was remitted to the Respondent on 11 August 2025. Following this, the Respondent approved the current SOPS, incorporating matters on which the parties agreed, leaving only the claimed support to be resolved.
The matter was heard on the papers on 8 October 2025. Both parties consented to this proceeding being determined in the absence of the parties. I am also satisfied for the purposes of subsection 106(2) of the Administrative Review Tribunal Act 2024 (Cth) that the issues can be adequately determined in the absence of the parties.
Documents available to the Tribunal were contained in a joint tender bundle comprising 710 pages (Exhibit 1). The Applicant and Respondent each provided a Statement of Facts Issues and Contentions (SFIC), contained within the joint tender bundle. The Respondent subsequently provided additional written submissions dated 29 September 2025. The Applicant provided written submissions in reply dated 3 October 2025.
THE DECISION UNDER REVIEW
Mr Padgham sought review of the Respondent’s internal review decision dated 21 September 2023, varying the 2023 SOPS. By the time of the hearing, further SOPS had been approved commencing on 30 October 2023, 3 May 2024, and 1 September 2025.
The present application for review is taken to be an application for review of the decision dated 21 September 2023 (reviewing the 2023 SOPS) and subsequent decisions to vary or approve a new SOPS.[3] However, the current operative decision for the purposes of this review is the decision to approve the SOPS that commenced on 1 September 2025.
THE LAW
[3] Subsection 103(2) of the NDIS Act.
The legislative framework
The statutory provisions relevant to this application for review are found within the NDIS law, including:[4]
·the NDIS Act;
·the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Supports Rules);
·the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth) (Miscellaneous Provisions Rules);
·the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth); and
·the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth) (Practice Standards Rules).
[4] The statement of the law that follows largely adopts the summary in FMDP and National Disability Insurance Agency [2025] ARTA 2225.
The Agency also issues Operational Guidelines. These are published by the Agency on its website and include guidelines on Reasonable and Necessary Supports.[5] The Tribunal is not bound to follow Operational Guidelines issued by the Agency. The relevance of these for the Tribunal in performing its review task is discussed later in these reasons.
[5] Webpage: ourguidelines.ndis.gov.au
Approving SOPS in participants’ plans
Section 3 of the NDIS Act sets out the objects of the NDIS Act. Sections 4 and 5 of the NDIS Act set out general principles guiding actions under the NDIS Act, and sections 17A and 31 of the NDIS Act set out principles that relate to participation in the NDIS and plans.
If a person becomes a participant, under section 32 of the NDIS Act the CEO must facilitate the preparation of a plan for the participant. Mr Padgham’s plan is an ‘old framework plan’. For those plans, section 33 of the NDIS Act sets out the matters that must be included in a participant’s plan. A plan must include a statement of the participant’s goals and aspirations. It must also include a SOPS, prepared with the participant and approved by the CEO. The SOPS in a participant’s plan must specify, among other things, ‘the reasonable and necessary supports (if any) that will be funded’ under the NDIS.[6]
[6] Paragraph 33(2)(b) of the NDIS Act.
When approving a SOPS in a participant’s plan, the CEO must comply with the mandatory requirements contained in subsection 33(5) of the NDIS Act. One of the requirements in subsection 33(5) is that the CEO ‘be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded’: paragraph 33(5)(c) of the NDIS Act.
Subsection 34(1) of the NDIS Act deals with ‘reasonable and necessary supports’. The matters set out in subsection 34(1) of the NDIS Act are more than mandatory considerations. They are more in the nature of criteria that the decision‑maker must be positively satisfied about on the material.[7] Subsection 34(1) provides as follows:[8]
[7] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at 201.
[8] The NDIS Act was amended by the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth) (the Amending Act). Those amendments came into effect on 3 October 2024. If the Tribunal varies the SOPS in Mr Padgham’s plan, the effect of item 129 of Schedule 2 to the Amending Act is that section 34 of the NDIS Act, as amended by the Amending Act, must be met. On the Applicant’s behalf it was conceded in written submissions that the Tribunal must apply the provisions that exist at the time the Tribunal makes its decision.
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:
(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 a 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.
When approving SOPS in a participant’s plan the Support Rules are relevant, as are the Miscellaneous Provisions Rules.
The NDIS Practice Standards Rules[9]
[9] NDIS Quality and Safeguards Commission, November 2021.
Under paragraph 73F(2)(c) of the NDIS Act, an organisation’s registration as a registered NDIS provider is subject to a condition that it complies with all applicable standards and other requirements of the NDIS Practice Standards, defined in the NDIS Act as the NDIS rules made for the purposes of section 73T.
The NDIS Practice Standards Rules set out some of the conditions that providers must comply with to become and remain registered NDIS providers. They also set out the ‘NDIS Practice Standards’ that apply to registered NDIS providers.
NDIS Pricing Arrangements and Price Limits 2025-26 (PAPL)
The PAPL is an operational guideline published by the Agency on its website.[10] The PAPL sets out the pricing arrangements and price limits that apply to the provision of supports for participants.
[10] >
It contains general rules that apply when a registered provider makes a claim for payment for a support. These deal specifically with claims for non-direct services, including claims for travel; claims where a service is cancelled at short notice; claims for reports, and claims for payment for non-face-to-face services. For non-face-to-face supports it states:
Non-Face-to-Face Support Provision
Providers can only claim from a participant’s plan for the Non-Face-to-Face delivery of a support item if all of the following conditions are met:
·The NDIS Pricing Arrangements and Price Limits indicates that providers can claim for Non-Face-to-Face Support Provision in respect of that support item; and
·The proposed charges for the activities comply with the NDIS Pricing Arrangements and Price Limits and with the Service Agreement with the participant; and
·The activities are part of delivering a specific disability support item to that participant or in the case of group-based supports, are required to enable the group support to be delivered (rather than a general activity such as enrolment, administration or staff rostering); and
·The provider explains the activities to the participant, including why they represent the best use of the participant’s funds (that is, the provider explains the value of these activities to the participant); and
·The provider has the agreement of the participant in advance (that is, the service agreement between the participant and provider specifies that Non-Face-to-Face supports can be claimed).
For example, the Assistance with Self Care support items are described as covering activities “Assisting with, and/or supervising, personal tasks of daily life to develop skills of the participant to live as autonomously as possible”. Therefore, time spent on Non-Face-to-Face activities that assist the participant – for example, writing reports for co-workers and other providers about the client’s progress with skill development – could be claimed against this support item.
The costs of training and up-skilling staff, and of supervision, are included in the base price limits for supports and are not considered billable Non-Face-to-Face supports. However, research undertaken by a capacity-building provider specifically linked to the needs of a participant and to the achievement of the participant’s goals may be billable as a Non-Face-to-Face support with the participant’s prior agreement.
Service agreements with each client can ‘pre-authorise’ these activities, but providers should only claim a support item from a participant’s plan if they have completed activities that are part of the support for that participant. Charging a fee that is not linked to completed activities is not permitted.
Time spent on administration, such as the processing of NDIS payment claims for all clients, should not be claimed from a participant’s budget as a Non-Face-to-Face support. The NDIS price limits include an allowance for overheads, including the costs of administration tasks. Examples of administrative activities that are covered by the overhead component of the support price limits and that should not be billed as Non-Face-to-Face supports include, but are not limited to:
·Pre-engagement visits;
·Developing and agreeing Service Agreements;
·Entering or amending participant details into system;
·Making participant service time changes;
·Staff / participant travel monitoring and adjustment;
·Ongoing NDIS plan monitoring;
·Completing a quoting tool;
·Making service bookings; and
·Making payment claims.
The fee charged for Non-Face-To-Face supports must be reflective of the needs of the participant in the context of the relevant support, and in agreement with the participant.
Claims for Non-Face-to-Face supports are made using the relevant support item, using the “Non-Face-to-Face” option in the myplace portal.
The PAPL states registered providers must generally not add any other charge to the cost of the supports it provides to a participant.[11]
[11] PAPL at 41.
In relation to the cost model used for support workers, the PAPL states that the cost model estimates the fully loaded cost of a billable hour of support considering: base pay; shift loadings; leave entitlements; salary on costs; employee allowances; operational overheads (including supervision costs, utilisation costs and workers’ compensation costs); corporate overheads and margin.[12]
EVIDENCE
[12] PAPL at 9.
Mr Padgham
Mr Padgham is 33 years old and lives with his parents. He has ASD level 3 and intellectual impairment.
Mrs Padgham explained in a statutory declaration that she and her husband had always provided support to their son at home but felt they were reaching an age where they could no longer do that easily, and it was impacting their health. Their son’s plan now has funding to enable him to reside independently with formal supports. That SOPS has only recently been approved and there was no indication that the process of transitioning to alternative accommodation had begun.
Mr Padgham attends Bedford Group’s day program 5 days/week. I find on the evidence before me that, at Bedford Group, he generally engages in the same activities. He walks each day for up to 25 kilometres and at other times will swim 2.5 kilometres. In inclement weather he attends Bounce for two hours. His long walks are to quiet locations including national parks and trail walks. That is the evidence of Ms Padgham (in her statutory declaration), Mr Burgoyne (an independent occupational therapist who provided a report dated 29 October 2024) and Ms Hondrovasilopolous (his occupational therapist who provided a response to targeted questions on 9 May 2024). It is also consistent with evidence below that the Applicant engages in repetitive behaviours, has restricted interests and has difficulty reacting to sudden changes in his routine.
A document headed ‘Something you might like to know about me’ provides information about Mr Padgham. It states:[13]
I can become obsessed with signs, DVDs, timetables, calendars, fridge magnets, picture books and communication PECS symbols. Trying to move me along quickly will cause me to escalate. Calmly tell me that it's time to move on. Repeat a couple of times. Use the ‘fast’ visual on the lanyard. Please be patient with me as this may take some time…
My interests include: the sensory room, swimming, walking, surfing, sailing, Bounce and going on public transport. I am a big train enthusiast! I am much happier if I get LOTS of exercise throughout the day…
If I become too distressed and discombobulated I will self-harm.
[13] T9.

Mr Padgham has social communication deficits. Mr Burgoyne reported that Mr Padgham had minimal to no verbal communication, he was unable to identify social cues and his communication involved repeating what had been said to him.
Mr Padgham also engages in repetitive behaviours and has restricted interests. Mr Burgoyne reported that Mr Padgham had intense fixations and rigidity in his daily routines. He was focused on doing the same activities each day. He fixated on objects and activities and this occurred daily with sessions of prolonged focus lasting up to 30 minutes or more. Mr Padgham also had repetitive motor movements. When rushed, he became overwhelmed, leading to behaviours such as hand flapping and rocking.
Mr Padgham also has behavioural challenges. Mr Burgoyne noted that this included difficulty regulating his emotions, particularly difficulties with transitions. Mr Burgoyne noted that the Applicant was also not able to initiate any task without cueing and this included drinking and eating.
A behaviour support plan (BSP) is in place. The most recent BSP is dated 18 July 2025 and was developed by Mr Hodges, a behaviour support practitioner. In the BSP he noted that Mr Padgham was prescribed medication to help reduce repetitive behaviours and feel calmer. This is prescribed by his GP for anxiety and OCD and is not regarded as chemical restraint.
I find based on Mr Hodges’ BSP that Mr Padgham is petrified of dogs and takes a long time to enter and exit trains. Support workers must hold his hand to support him with this transition. They must also support him to walk through doorways as he may pause for a period and then leap to the other side.
Mr Padgham also becomes agitated without a significant amount of exercise each day and has difficulty reacting to sudden changes in his routine, as Mr Hodges stated in the BSP. However, Mr Hodges described Mr Padgham as gentle and compliant when given sufficient time to process information.
Mr Padgham engages in a number of behaviours of concern. These are identified by Mr Hodges in the BSP. One of these is that Mr Padgham stops abruptly in dangerous locations creating a risk of harm to himself. In the BSP Mr Hodges noted that there were 33 incidents where Mr Padgham paused in non-dangerous and dangerous locations. Mr Hodges described the setting for those events and triggers and the risks, noting the risk of harm should Mr Padgham stop where there was likely to be traffic.
In the BSP Mr Hodges identified proactive strategies to address this behaviour. These included choosing walking paths where dogs were less likely to be present and which were in quiet environments. The BSP also recommended if an outing was to a place where Mr Padgham had been before and where there were likely to be signs present, that the service should ring in advance to ask if the venue could temporarily move the sign. The BSP noted that this had been effective when Mr Padgham went to the aquatic centre.
Other behaviours of concern addressed in the BSP included Mr Padgham harming himself through scratching resulting in minor bleeding and marks, harming himself through holding his breath to the point where his face may turn red, refusing to go to the toilet (resulting in a urinary tract infection on one occasion) and touching the inside of toilet bowls.
Mr Burgoyne referred in his report to the Applicant having displayed aggression towards others, including hitting or pushing during heightened states. However, aggression is not identified in the current BSP as a behaviour of concern or risk. Instead, Mr Hodges recorded that Mr Padgham may hold his breath if he felt under pressure. Mr Hodges also recorded that when Mr Padgham encountered a trigger in the community, he might close his eyes, cover his ears, rock back and forth, talk louder, and become echolalic.
Mr Padgham’s current funding for community access
Mr Padgham’s current SOPS includes funding for core supports of 24/7 1:1 support, based on weekly support of 51 hours for community access, 61 hours for supported independent living, and 56 hours for inactive overnight support.
A breakdown of the funding shows that the funding for 51 hours for community access is funding for ‘Group and centre based activities’. It includes approximately $146,000 for ‘Group activities - Standard – Weekday Daytime’ which may include 40 hours/week for 52 weeks/year delivered as a 1:1 support at $70.23.[14]
[14] JTB 592.
The PAPL states that as well as direct service provision, this support item can be used to claim for non-face-to-face support provision.[15]
[15] PAPL at 65.
The claimed support
There are two recent statutory declarations from employees of the Bedford Group specifically addressing the claimed support:
·a statutory declaration of Ms Griffiths, Chief Operating Officer and Advisory, Bedford Group, declared on 17 September 2025; and
·a statutory declaration of Ms Veitch, General Manager Learning and Experience and NDIS Business Support, Bedford Group declared on 17 September 2025.
There are also two emails, dated 7 February 2025 and 14 April 2025, from Ms Pearce who was employed at Bedford group in the role of Manager Learning and Experience – Adelaide South.
Ms Griffiths’ statutory declaration addresses the contractual arrangements between the Applicant and the Bedford Group. Her statement provides little information in relation to the claimed support other than to state that venue checks are an explicit recommendation in the Applicant’s BSP and that if the Bedford Group was prevented from performing the ‘venue suitability process’, such as contacting venues in advance, it would be deprived of the required information necessary for safe support delivery.
Ms Veitch is a senior leader responsible for overseeing client programs, workforce management and commercial operations, which she says involves leading 7 programs for 400 clients. She provided a breakdown of the non-face-to-face supports provided to the Applicant as well as additional supports provided but not funded under the current plan. The non-face-to-face supports, were broken down as follows for each day that the Applicant attended the Bedford Group:
·10 minutes for activity planning
·10 minutes for daily progress noting and reporting; and
·10 minutes for pre start and post shift handover.
Ms Veitch described ‘activity planning’ as having to occur daily prior to the Applicant’s arrival. She said that failure to do so put the Applicant and support staff at risk. The planning was described as following the strategies in the Applicant’s BSP by planning activities to ensure the Applicant obtained sufficient exercise, that walking routes were in appropriate settings, and that venues were called ahead of time to understand what signs were on display so that these may be taken down temporarily. Later in her statement she said that the Applicant requires constant movement in an environment that has low noise levels and limited triggers such as signage and that this requires planning to ensure the route is safe and appropriate, mitigating risk to the Applicant and staff as well as other participants or members of the public.
Regarding ‘daily progress noting and reporting’ Ms Veitch said that, after shifts with the Applicant, staff were required to complete ‘progress notes, reports and QR code for the Positive Behaviour Practitioner’. She said that daily progress notes were completed to record information relating to the Applicant’s progress towards goals, behaviour support and strategy effectiveness, incidents that may have occurred, and the Applicant’s general well-being.
Ms Veitch said that the QR code that staff were required to complete contained 24 questions and took 5-10 minutes/shift to complete.
Regarding ‘pre-start and post-shift handover’ Ms Veitch said that before a shift staff reviewed the Applicant’s support plans to ensure that they were up to date with any changes to his support needs, goals or strategies. This included reviewing progress notes from the previous day. Prior to commencement of a shift, and after completion of a shift, staff also engaged with external support or family members ‘for verbal handover’.
Ms Veitch provided details of tasks undertaken by Bedford group that she regarded as ‘additional supports provided but not funded under the current plan. Over the course of the plan, she calculated this at 3-5 hours for writing various correspondence and reports and 1-2 hours for multi-disciplinary meetings and case conferences (following a significant incident or change). She also described time spent on consultation with the BSP and direct staff. Many of these tasks were described very broadly.
Ms Pearce’s second email provides a breakdown of the 30 minutes/day and largely mirrors the information provided by Ms Veitch. She states that 10 minutes is required for activity planning, 5-10 minutes for reading progress notes and checking support plans and CRM alerts, 5-10 for minutes of handover, and 10 minutes for documenting daily progress notes, incident reports, and relevant information for the BSP.
SUBMISSIONS
Submissions on behalf of Mr Padgham
It was contended on Mr Padgham’s behalf that the claimed support is a reasonable and necessary support for the purposes of subsection 34(1) of the NDIS Act. It was acknowledged in the Applicant’s SFIC that there was a ‘certain artificiality’ about assessing the claimed support against section 34. It was suggested that the claimed supports were ‘necessarily ancillary’ to the provision of primary supports agreed by the parties and that their analysis within the section 34 ‘rubric was almost unnecessary’.
In the Applicant’s subsequent written submissions, it submitted that the PAPL was not relevant to the Tribunal’s decision. Even if it was, funding the claimed support was not precluded by the PAPL.
Extensive submissions were made on the relevance to the Tribunal’s decision-making of policy contained in the PAPL. The Tribunal was referred to ways in which policy might be relevant in administrative decision-making, discussed by Kyrou J in GJDB and Minister for Immigration, Citizenship and Multicultural Affairs.[16] It was contended on the Applicant’s behalf that the proposition for which Re Drake v Minister for Immigration and Ethnic Affairs(No 2)[17] stands is that where a policy makes provision for the manner in which a discretion is to be exercised, provided it is valid and not inconsistent with the legislation, the Tribunal would normally be expected to apply that policy. It was contended however that subsection 34(1) of the NDIS Act contains no discretion and it is not within the proper function of policy to add to the criteria prescribed by section 34 or to dictate how the criteria should be interpreted or applied.
[16] [2023] AATA 3245.
[17] (1979) 2 ALD 634.
As to whether the claimed support was really an ‘administrative’ function that should be absorbed by the provider, it was conceded on the Applicant’s behalf that purely administrative matters such as invoicing or drafting contracts cannot be billed to the Agency. However, it was contended that the claimed support is qualitatively different; and is a support specific and tailored to the Applicant and necessary to ensure that he does not endanger himself while in the community.
It was also contended on the Applicant’s behalf that the provision in the PAPL dealing with monitoring and adjusting provider and participant travel did not extend to the present circumstances. That provision dealt with the costs to a provider company in monitoring where individual support workers travelled with an applicant or how the provider travelled to an applicant, whereas the present circumstances concerned supervision of an applicant in the community to protect their safety.
It was further contended on the Applicant’s behalf that adopting the Respondent’s position would leave only three potential outcomes all of which were untenable. First, the provider could agree to provide 2.5 hours/week for free which it has said it will not do. Secondly, the Applicant could deduct 2.5 hours/week from his ordinary support, with the result that the Applicant’s funding would either run out early or he would not have 24/7 support. Thirdly, the Applicant could do without the non-face-to-face support altogether, placing the Applicant in serious danger and likely presenting an unacceptable risk to support workers.
The Respondent’s submissions
In its SFIC and written submissions, the Respondent submitted that the claimed support is not a ‘reasonable and necessary support’ because it does not represent value for money (paragraph 34(1)(c) of the NDIS Act). In its written submissions the Respondent also asserted as a corollary that the claimed support would infringe against rule 5.1(c) of the Supports Rules. Rule 5 sets out general criteria for supports and rule 5.1(c) states that a support will not be provided or funded under the NDIS if it ‘duplicates other supports delivered under alternative funding through the NDIS’.
In its SFIC the Respondent noted the PAPL and contended that providers can only claim for non-face-to-face support if all the conditions in the PAPL are met.
The Respondent contended that day program planning was a provider function. However, the identification of appropriate walking tracks for the Applicant need only occur on a once-off basis or when a new walking track was required. The task did not involve the Applicant directly and the time was not reasonable relative to the support.
Further, it was contended that day program planning was an administration task that was a provider overhead, akin to ‘staff/participant travel monitoring and adjustment’ and ‘ongoing NDIS monitoring’ referred to in the PAPL. It was contended that allowance had been made for this in the NDIS price limits.
The Respondent further contended that to the extent that the non-face-to-face support was comprised of tasks associated with changeover or handover between support workers, these were regular administrative functions expected of the day program provider in the operation of their organisation. It was contended that they form part of the day program’s business responsibilities as a provider which include internal risk and quality management processes under the NDIS Practice Standards. These were not services directly received by the Applicant. They were administration and staff rostering and precluded under the PAPL. They were therefore not a disability support (paragraph 34(1)(a)) and did not represent value for money (paragraph 34(1)(c) of the NDIS Act).
In its further written submissions, the Respondent specifically addressed the evidence and rationale for the claimed support. It contended that, regarding travel planning, when properly understood in light of the evidence the tasks for which funding was sought were provider-related tasks that do not rise to the level of a reasonable and necessary support for the Applicant. The Respondent regarded the matters as not rising above monitoring and adjusting staff and participant travel which was expressly identified as a business overhead and administrative task for which providers were responsible under the PAPL.
The Respondent also pointed to clauses in the Practice Standards Rules which set out minimum standards that providers must meet and which it contended cover the same subject matter as the claimed support. The Respondent reiterated that the NDIS price limits include an allowance for overheads including the cost of administration tasks. The claimed activities were akin to participant travel monitoring and adjustment and ongoing NDIS plan monitoring. As such they fell within the category of provider overheads.
Regarding tasks associated with changeover and handover between support workers the Respondent contended that these were regular administrative functions expected of the day program provider in the operation of their organisation. The Respondent noted the obligation on providers under the Practice Standard Rules and that such tasks form part of the business responsibilities of the day program. To separately fund these internal processes would duplicate support in breach of rule 5.1(c) of the Supports Rules.
Finally, the Respondent contended that the Tribunal should have regard to the context of the claim. The Applicant’s plan included funding for 61 hours of SIL funding at a 1:1 ratio and 51 hours of community access at a 1:1 ratio. It contended that ‘SIL is intended to be a thorough care support model’ and that the day program and SIL providers should each utilise the funded hours to appropriately complete the non-face-to-face support tasks. If the Agency were to separately fund these tasks in addition to the 61 hours of SIL, it would result in a duplication of supports.
CONSIDERATION
On the Applicant’s behalf it is contended that Bedford Group’s support workers spend on average, 20 minutes/shift, that is, 1 hour 40 minutes/week on daily progress noting, reporting and handover and a further 10 minutes/shift, or 50 minutes/week on activity planning.
Paragraph 34(1)(aa) of the NDIS Act requires that a support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the access requirements. Direct support provided to the Applicant by Bedford Group support workers to undertake community access meets that requirement. However, the claimed support relates to non-direct services. Neither party directly addressed how the Tribunal should approach the application of paragraph 34(1)(aa) to non-direct services.
That the claimed support is a non-direct support does not preclude it from meeting paragraph 34(1)(aa). It is not contentious in my view that a non-direct support, including for example some kinds of report writing or travel, might meet the requirements in paragraph 34(1)(aa). It is also not contentious in my view that there may be many tasks undertaken by a support provider that are non-direct that would not meet the requirements in paragraph 34(1)(aa). These might include tasks such as booking a service or providing a quote.
For non-direct services, the PAPL draws a broad distinction between those tasks that are ‘part of delivering a specific disability support item’ to the participant and those that are not, such as administrative tasks, training and up-skilling staff, and supervision.
I have had regard to the PAPL but I accept the Applicant’s submission that the PAPL is an operational policy and it is not the role of the PAPL to add to the criteria prescribed by section 34 of the NDIS Act or to dictate how the criteria should be interpreted or applied.
I do not consider (and it was not contended) that it is correct to incorporate into paragraph 34(1)(aa) an additional or different test under which a non-direct support meets that paragraph if it is ‘necessarily ancillary’ to a funded direct support. To do so risks adopting an expansive operation of that provision that does not have regard to the need to ensure the financial sustainability of the NDIS.
Similarly, I do not consider that it is correct to incorporate into paragraph 34(1)(aa) of the NDIS Act an additional or different requirement, for non-direct supports, that the support must not be operational or administrative in nature or that it must be ‘part of delivering a specific disability support item’.
The non-direct services performed by support workers at Bedford Group must be assessed against the requirement in paragraph 34(1)(aa) of the NDIS Act. The requirement in that paragraph is that the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the access requirements.
I accept based on the statutory declaration of Ms Veitch that, for each shift supporting Mr Padgham, a Bedford Group support worker engages in making progress notes, reporting and handover. In my view, however, these daily tasks do not meet the requirements in paragraph 34(1)(aa) of the NDIS Act.

I accept the Respondent’s contention that these tasks are functions of the day program provider in the operation of their organisation. They are important tasks for reasons including that Bedford Group must meet its obligations as a registered NDIS provider. They obviously affect matters such as the quality of the service provided to Mr Padgham. While they may be important and necessary tasks for Bedford group to undertake, that does not render them a support that is necessary to address needs of Mr Padgham arising from an impairment in relation to which he meets the access requirements, that should be funded in Mr Padgham’s SOPS in his plan.
The Respondent acknowledges the need for these kinds of tasks and says that it is recognised in the price limit it sets. The price limit takes into account other matters that are also not reasonable and necessary supports for a participant under section 34(1), including corporate overheads and margin, as set out earlier.
Regarding day planning for Mr Padgham, this is planning for delivering a specific support and therefore different in nature to the tasks above. I am not satisfied however that in the present case it constitutes a separate support that is necessary to address needs of Mr Padgham arising from an impairment in relation to which the participant meets the access requirements, meeting the requirements of paragraph 34(1)(aa), warranting additional support hours.
It was contended on the Applicant’s behalf that the claimed support is necessary to ensure the Applicant does not endanger himself in the community.
Based on the most recent BSP, I find that the Applicant is at risk of harm through stopping abruptly in dangerous locations. The BSP identifies dangerous locations as driveways, roads, carparks, and doorways. I accept that this risk can be reduced through strategies identified in the BSP. Those strategies include strategies around choosing the locations where the Applicant walks. Adopting strategies in the BSP reduces the risk of harm to the Applicant arising in this way (but does not eliminate it as there will continue to be many other reasons that the Applicant will continue to pause in unsafe locations). I therefore accept that activity planning reduces the risk of the Applicant coming to harm through stopping abruptly in dangerous locations.
Some activity planning appears to be unrelated to reducing the risk of harm posed by stopping in unsafe locations. For example, one of the strategies in the BSP includes avoiding locations where there are dogs and another involves calling ahead to venues that the Applicant has previously attended, to ask that the venue temporarily take down signage, giving an example of the aquatic centre.
However, I accept that activity planning operates to improve the quality of the Applicant’s daily activities while at Bedford Group. Choosing locations where dogs are less likely to be present may not reduce the risk of harm through stopping abruptly in dangerous locations. However, it is likely to reduce the Applicant’s stress given the evidence that he is petrified of dogs. Similarly, removing signage at the aquatic centre appears to be unrelated to reducing the risk of harm posed by stopping in unsafe locations but it may reduce friction with the public, as Mrs Padgham indicated in her own statement.
As to the specific activity planning undertaken by Bedford Group, Ms Padgham stated that Bedford Group ‘scout out’ in advance the route that Mr Padgham will travel each day for his walk. She said that this may mean liaising with businesses to cover up signs and temporarily remove distractions. However, there was no direct evidence that Bedford Group staff physically traversed routes in advance. Nor was there clear evidence that staff regularly called ahead to any venue. Ms Veitch stated very broadly that part of the activity planning involved calling ahead to venues but did not identify any venues. Ms Hondrovasilopolous referred in May 2024 to Mr Padgham riding on certain trains and to him getting his own carriage but that plenty of notice had to be given. The BSP also recorded that in the past staff have called ahead to the aquatic centre although I also note that in her statement Ms Padgham described a recent incident related to signage at the aquatic centre.
I accept that some activity planning occurs each week regarding activities undertaken by Mr Padgham with Bedford Group. I am not satisfied however on the evidence before me that on average support workers undertake activity planning for Mr Padgham for 50 minutes/week and I consider it likely takes significantly less than this. In reaching that view, I have considered the limited and repeated activities that Mr Padgham engages in, the desirability of routine for Mr Padgham, and the absence of clear evidence on specific tasks undertaken in planning activities for Mr Padgham.
I therefore acknowledge that activity planning improves the quality of support provided to Mr Padgham and reduces the risk of harm through stopping abruptly in dangerous locations. However, I find that the extent of planning is considerably less than 50 minutes/week. Any direct support provision for community access is likely to involve a degree of activity planning, and I do not consider that in this matter it warrants funding in addition to the direct support that is currently funded.
I am therefore not satisfied that the requirements in paragraph 34(1)(aa) of the NDIS Act are met.
Alternatively, if the claimed support does meet paragraph 34(1)(aa) of the NDIS Act, I also accept the Respondent’s submission that paragraph 34(1)(c) of the NDIS Act is not met. The claimed support would duplicate other supports delivered under alternative funding through the NDIS and therefore infringe against rule 5.1(c) of the Supports Rules. This is because the funding for direct support anticipates some activity planning. It also includes funding for administrative functions expected of the day program provider in the operation of their organisation, and this would extend to the tasks undertaken by support workers at the start and end of shifts including handover and making file notes.
I am therefore not satisfied that the claimed support is necessary to address the needs of Mr Padgham arising from impairments that meet the access criteria (required by paragraph 34(1)(aa)) or that the requirement in paragraph 34(1)(c) of the NDIS Act is met.)
DECISION
The Tribunal affirms the decision under review.

1.

2. I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for the decision herein of General Member A Colvin.

...............SGD..................
Associate
31 October 2025

Date of hearing: 8 October 2025

Solicitor for the Applicant: S Price, Legal services Commission SA

Counsel for the Applicant: OHF Morris

Solicitor for the Respondent: I Hosking, Mills Oakley

Counsel for the Respondent: R Elishapour