QGRY and National Disability Insurance Agency (NDIS)

[2025] ARTA 598

QGRY and National Disability Insurance Agency (NDIS) [2025] ARTA 598 (21 May 2025)

Applicant/s:  QGRY

Respondent:  National Disability Insurance Agency

Tribunal Number:                 2020/6606

Tribunal:General Member A Williams   

Place:Hobart

Date:21 May 2025

Decision: The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with a direction that the Applicant’s Statement of Participant Supports include funding for:

1. kitchen modifications as proposed by the Scope of Work for Kitchen Modifications (AH 804)

2. removal of archways 1 and 2 in kitchen dining room areas.
3. removal of existing carpet in kitchen/dining area and replace with vinyl flooring.
4. high contrast painting of the architraves and skirting boards in the Participant’s home.
5. replacement of existing downlights in kitchen area with 7 LED lights.
6. purchase and installation of a NEFF N 90 induction cooktop.

7.replacement of the Participant’s existing driveway

8. construction of a concrete pathway in the Participant’s backyard.

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

General Member A Williams

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME (NDIS) – significant vision impairment –– home modifications –– whether support is reasonable and necessary –  whether requested supports are a NDIS Support capable of being included in a Statement of Participant Supports – whether there is sufficient evidence that a requested support is a NDIS Support – whether funding for support whether funding for support is consistent with relevant law and policy - decision under review set aside and remitted for reconsideration.

Legislation

Administrative Appeals Tribunal Act1975 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)

National Disability Insurance Scheme Rules 2016 (Cth)

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

Cases

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Dudgeon and National Disability Agency [2024] ARTA 154

Duse and National Disability Insurance Agency [2025] ARTA 37

FSWN and National Disability Insurance Agency [2025] ARTA 114

Hyde and National Disability Insurance Agency [2025] ARTA 365

McGarrigle v National Disability Insurance Agency [2017] FCA 308 (28 March 2017)

Madelaine and National Disability Insurance Agency [2019] AATA 4025

Public Trustee of South Australia as Litigation Representative for Isherwood and National Disability Insurance Agency [2023] FCA 852

Rogers and National Disability Insurance Agency [2022] AATA 2809

Warwick v National Disability Insurance Agency [2024] FCA 616

Secondary Materials

National Disability Insurance Scheme-Operational Guidelines

National Disability Insurance Scheme Operational Guidelines – Planning

Operational Guidelines for Home Modifications (OGHM)

Blind Citizens Australia (webpage)

Statement of Reasons

BACKGROUND

The Applicant

1. Ms. QGRY (who I will identify either as the Applicant or Ms. QGRY) is a 61-year-old woman who lives in a suburb in Melbourne. She is a participant of the National Disability Insurance Scheme (‘the NDIS’) after being found to be eligible for access to the scheme in 2017.

2. Ms. QGRY has the following diagnoses:

   ·aniridia;

   ·glaucoma;

   ·cataract;

   ·corneal pannus;  

   ·myopia;

   ·nystagmus; and

   ·astigmatism.

3. She was found to be eligible for access to the NDIS based on her diagnosis of aniridia.

4. Aniridia is a genetic disorder that causes a baby to be born without irises, either partially or fully. The Applicant is legally blind and only able to distinguish light, colours, shapes and shadows with her left eye and has no functional vision in her right eye. The Applicant’s depth perception is also affected.

5. Notwithstanding these impairments, Ms. QGRY leads a full and active life including working on a part-time basis.

6. On June 2020, the National Disability Insurance Agency (who I will refer to as either the Respondent or the Agency) approved a range of supports for Ms. QGRY including the following:

   (a) A Core Supports budget of $31,488.88. This includes $2,000.00 for level 1 and level 2 assistive technology, funding for ongoing cost of her guide dog, funding to assist her daily care needs and maintain her home environment, individual assistance to support Ms. QGRY’s participation in community, social and recreational activities and $3,567.00 for transport. These supports were identified as self-managed.

   (b) A Capacity Building Supports budget of $31,814.89 comprising:

   (i) Improved Daily Living (CB Daily Activity) - $13,870.35 (Self-managed)

   (ii) Support Coordination - $2,941.00 (Self-managed);  

   (iii) A Capital Supports budget of $5,000.00 (Self-managed);

   35 hours per week of Disability Support Worker assistance which may be used flexibly;

   3 hours per week of cleaning assistance;

   12 hours of physiotherapy supports;

   12 hours of occupational therapy supports;

   15 hours for an Orientation and Mobility assessment;

   Aira subscription; and

   iRobot automatic vacuum cleaner.

7. Upon receiving her plan, Ms. QGRY sought an internal review of that decision and sought consideration by the Respondent of a range of supports. Of these requested supports, the delegate found the following met the reasonable and necessary criteria:

   oReady Easy evolve, ID Mate Galaxy and Sunu Band Horizon;

   o7 hours per week of assistance to access the community.

8. Her review request listed the following non-property related supports which the delegate declined to approve:

   oLow-cost assistive technology.

   oComputer software for plan management;

   oAdditional annual maintenance guide dog costs;

   o19 hours per week of assistance with daily activities;

   o15.5 hours per week of assistance to access the community;

   o40 hours of occupational therapy;

   o37 hours of other therapy for guide dog visit orientation and travel;

   o104 hours for physiotherapy;

   o72 hours of support coordination

   o8 hours of skill development;

   oORCAM;

   oUpgrade of JAWS software; and

   oAIRA subscription.

9. The request for property modifications included the following:

   Replacement spa controller;

   Spa maintenance;

   Electrical quote;

   Concreting at the front and rear of the house;

   Structural modifications to the home’s kitchen;

   Stove top; and

   Zip hot water tap.

10. Ms. QGRY had previously supplied the Respondent and the Tribunal with numerous expert reports, construction quotations and detailed plans of the proposed modifications to the kitchen.

11. The Respondent conducted its internal review and on 17 September 2020, provided its decision. The delegate that conducted the review determined that the requested additional supports and property modifications did not meet the criteria set out in s 34 of the National Disability Insurance Scheme Act 2013 (Cth). The delegate advised that in relation to the requested property modifications there was no information provided that would establish that the requested supports would be effective and beneficial.

12. On 26 October 2020, Ms. QGRY then applied to the then Administrative Appeals Tribunal (the AAT) seeking an independent review of the Respondent’s decision.

13. In her application for review Ms. QGRY stated the following as the reasons she believed the Respondent’s decision had been incorrectly made:

    I consider that the decision is incorrect because:

    I require the supports requested (specifically those identified as requests 1 to 16 in the decision-maker’s letter dated 17 September 2020), and importantly, at the support levels I proposed, to pursue my stated goals and aspirations; and I consider the proposed supports reasonable and necessary having regard to the s 34 criteria.

    I was not offered the opportunity to provide supporting evidence addressing the reasonable and necessary criteria as part of the s 100 internal review process. By way of context:
    I was unsatisfied with the statement of supports in my NDIS plan dated 22 June 2020.

    The Local Area Coordinator (LAC) advised me that my only recourse was to seek an internal review under s 100. Under her guidance and direction, she instigated this review on my behalf. But, in doing so, she failed to exercise due care when advising me of, most importantly, the process that follows. The LAC’s conduct denied me of the opportunity to use the 3-month review period to gather pertinent materials (eg expert reports addressing the ‘reasonable and necessary’ criteria set out in s 34) that would support and influence the outcome of the s 100 internal review and left me with an AAT appeal as my only recourse. Even though the LAC is not a delegate of the NDIS CEO, the LAC acted as an intermediary and held herself out as an agent of the NDIA (eg email address).
    The decision-maker had a duty to inquire and was under an obligation to request further evidence from me to satisfy herself that my support requests did not meet the reasonable and necessary criteria. She failed to, which meant I was denied the
    opportunity to seek further evidence to substantiate my support requests. The
    failure to provide the requested supports results in my health, safety and wellbeing
    placed at risk.

14. After Ms. QGRY’s application was received the matter has proceeded through several procedural steps in the Tribunal including conferencing designed to allow the parties by agreement to potentially reduce the number of matters in dispute.

15. As a result of that process in July 2023 the matter was remitted to the Respondent under s 42D of the Administrative Appeals Tribunal Act1975 (the AAT Act) on the basis that the following additional supports be included in Ms. QGRY ’s plan:

    ·The current $500 of low-cost assistive technology supports for personal care and safety in the Core Supports category in the Current Plan be replaced with $3,000 per year.

    ·Quote required assistive technology in the Core Supports category to enable the purchase of an iRobot Roomba S9+ Vacuum.

    ·The current 7 hours per week of Social, Community and Civic Participation in the Core Supports category in the Current Plan at the Saturday Rate be replaced with 35 hours per week at the Saturday Rate.

    ·The current Level 2 Transport funding in the Core Supports category to be replaced with Level 3 Transport.

    ·A total of 15 hours for an orientation and mobility assessment in the Capacity Building Supports category.

    ·37 hours per year of other therapy supports in the Capacity Building Supports category to enable guide dog visit/orientation and travel.

    ·A total of 12 hours of occupational therapy supports in the Capacity Building Supports category to enable any further home modifications assessments and capacity building.

    ·12 hours per year of physiotherapy supports in the Capacity Building Supports category.

    ·The current 30 hours of support coordination in the Capacity Building Supports category in the Current Plan be replaced with 72 hours per year of support coordination.

    ·$2,855.00 of assistive technology funding in the Capital Supports category to enable the purchase of JAWS upgrade on the Applicant’s personal computer.

    ·The current $3,360.00 of assistive technology funding in the Capital Supports category for an AIRA Subscription to be replaced with $3,528.00 per year.

    ·$6,549.00 of assistive technology funding in the Capital Supports category to enable the purchase of an OrCam MyEye Pro.

    ·Quote required assistive technology funding in the Capital Supports category to enable the purchase and installation of a banister rail for the Applicant’s front steps (this will be a stated support).

    ·$2,514.96 of assistive technology funding in the Capital Supports category for the purchase of a spa controller as per Spafix Vic quote dated 28 July 2020 (updated quote required).

    ·$3,850.00 of assistive technology funding in the Capital Supports category for supply and installation of electrical lighting in the Applicant’s home as per PCH Electrics Pty Ltd quote dated 8 February 2021 (updated quote required and to include additional task lighting within the Applicant’s home).

    ·Quote required assistive technology funding in the Capital Supports category for window coverings for the windows in the Applicant’s kitchen to reduce glare.

16. As a result of this, what I will term the property modification related matters remained to be determined by the Tribunal.

    Applicant’s Evidence

17. In support of her application, Ms. QGRY has provided the Tribunal with multiple reports and assessments, and I shall refer to those in this decision where relevant.

18. Prior to the commencement of the hearing of the matter, multiple individual documents were provided on both party’s behalf. These have been listed in the table below taken from the index of the parties’ joint tender bundle with the starting page of each document listed in the right-hand column:

    T Documents

JTB Reference		Description		Date		Page
T1		AAT Application for Review of Decision, attaching:		14 October 2020		181
T1A, T2		Internal Review Decision		17 September 2020		191
T1B		NDIS Plan (25.09.2020 – 26.06.2021)		25 September 2020		206
T3		General Assistive Technology Assessment (Various), John Clower (Access Technology Specialist)		19 June 2019		221
T4		Quote, Grande Paving Construction		24 March 2020		232
T5		Letter, Troy Sandley (Physiotherapist)		14 May 2020		233
T6		Report, Allison Hocking (Occupational Therapist)		16 June 2020		234
T7		Proposed Fee for Service, Vic Lifecare		18 June 2020		241
T8		Extract of Interactions, Request Review of Decision, Applicant		22 June 2020		243
T9		Report, Allison Hocking (Occupational Therapist)		28 July 2020		244
T10		Quote (ORCAM), Vision Australia		28 July 2020		248
T11		Preliminary Information, Applicant		August 2020		249
T12		Daily Timetable		August 2020		255
T13		Support Letter, Marita Baker (Guide Dogs Victoria)		14 August 2020		256
T14		Letter, Dr Kazunori Nakajima (General Practitioner)		14 August 2020		258
T15		General Assistive Technology Assessment (ORCAM), Allison Hocking (Occupational Therapist)		19 August 2020		260
T16		Extract of Interactions, Email Confirming Requested Supports, Applicant		23 August 2020		277
T17		Quote (Home Modifications), WFM Services		24 August 2020		279
T18		Email, Further Review Information, Applicant		8 September 2020		280
T19		Quote (Pearl), Author Unknown		Undated		283
T20		Letter of Support, Liz Rawson (Carer)		Undated		285
T21	Letter of Support, Michelle Seckold (Support Worker)		Undated		287
T22	Letter of Support, (Applicant’s Sister)		Undated		289
T23	Letter of Support, Lorraine Rodrigues (Support Coordinator)		Undated		292

Applicant’s other documents

A1	Dog Guide Information Sheet, Blind Citizens Australia	Undated	236
A2	Ultrasound Results, Dr Kazunori Nakajima	9 October 2019	237
A3	Grande Paving Construction Quote	24 March 2020	238
A4	Spafix VIC, Quote, Spa modifications	28 July 2020	239
A5	Letter, Dr Kazunori Nakajima	14 August 2020	240
241	Applicant Statement of Lived Experience	Undated	241
A7	Letter, Marita Barker, Guide Dogs Australia	14 August 2020	255
A8	Images of Applicant's driveway and surrounds	Undated	257
A9	PCH Electricians Quote	8 February 2021	274
A10	WFM Concreting Services Quote	15 February 2021	275
A11	Community OT Breakdown of WFH Concreting Quote	Undated	276
A12	Pabst Constructions Quote, Kitchen/Lounge Modifications	6 May 2021	278
A13	Hoskins Carpet Gallery Flooring Quote	12 April 2021	279
A14	Kitchens by Peter Gill, Cabinetry Quote	15 April 2021	280
A15	Report, Community OT	16 April 2021	281
A16	Ascot Group Quotation, Kitchen Modifications	15 June 2021	300
A17	John Kennedy Plumbing and Building Services Quote	7 June 2021	304
A18	Elanora Physiotherapy Report, Vahab Nedaey	15 July 2021	306
A19	Community OT Images and Scope for Kitchen Modifications	Undated	312
A20	Plans and Mock Ups for Kitchen Renovations	Undated	329
A21	Kitchen Plan	Undated	340
A22	Letter, Dr Khine Kyaw, General Practitioner	9 August 2021	341
A23	Letter of Support, Karen Roadley, Support Worker	22 August 2021	342
A24	General Assistive Technology Assessment, Luke McKeown, Occupational Therapist	15 October 2021	344
A25	Letter of Support, , Applicant’s sister and qualified in aged, disability, home and community care	Undated	367
A26	Weekly Timetable	Undated	370
A27	Letter of Support, Luke McKeown (occupational therapist)	18 January 2022	372
A28	Guide Dogs Outcome Summary	10 March 2022	377
A29	Community OT Concreting Area Summary	Undated	379
A30	General Assistive Technology Assessment, Luke McKeown, Occupational Therapist	10 March 2022	388
A31	Letter, Personal Trainer, Scott Mewburn	4 April 2022	421
A32	Complex Home Modification Assessment	5 April 2022	423
A33	Applicant’s covering email	7 April 2022	463
A34	NEFF T59TS61NO Induction Cooktop Quotation	Undated	466
A35	Letter of Support, Michelle Seckold, Support Worker	Undated	467
A36	Letter of Support, Liz Rawson, Support Worker	Undated	469
A37	Daily Timetable	5 May 2022	471
A38	Applicant’s response to Respondent’s Statement of Issues dated 9 September 2022	Undated	473
A39	Letter, Troy Sandley (physiotherapist)	14 May 2022	487
A40	Report, Brooke Farmer (occupational therapist)	12 August 2024	489
A41	Further material annexed to Whitehorse Council Ms. Houston's Home modification (Driveway vs Footpath) Recommendations (Duplicate of S5)	12 August 2024	529

Documents filed with the Applicant’s Statement of Facts, Issues and Contentions.

A-A	Impact statement QGRY			April 2024			537
A-B	Letter of Support Luke McKeown			January 2024			548
A-B2	Letter of Support Spa – Luke McKeown			April 2024			573
A-C1	AT Complex Home Modification Assessment report by Luke McKeown			January 2024			576
A-C2	NDIS AT Report Luke McKeown (Induction cooktop)			March 2005			622
A-C3	PB AT Report (Lighting) Luke McKeown			April 2005			655
A-C4	PB Gen AT Assessment (Spa) Luke McKeown			March 2010			678
A-C5	NDIS AT CHM Assessment (Kitchen) Luke McKeown			December 2020			702
A-D	NDIS OT Functional and Support Needs Report			16 April 2021			742
A-E	Kutinara et al 2013 Desing and Evaluation of a Kitchen for Persons with Visual Impairments			2013			761
A-F	Elanora Physiotherapy letter (Duplicate)			15 July 2021			766
A-G	Greasley-Adams 2014 Good Practise in the Design of _ and sight loss			2014			722
A-H	Scope of work for Kitchen Modifications			Undated			804
A-I	OT Report Phi Van Houston Amended 5 May 05 2023			5 May 2023			806
A-J	Home Modifications Guidance for Builders and Designers			September 2022			845
A-K	Bataineh 2028 Pattern of Burn Injury			2018			876
A-L		2020_6606 QGRY and NDIA_S-Documents Timetable			Undated			881
A-M		Pictures for visual reference P1-P23			April 2024			884
A-N		2020_6606 QGRY and NDIS – Respondent’s Statement of Facts, Issues and Contentions			3 November 2023			890
A-O		Mafalda signed Statement Letter			17 March 2024			916
A-P		Compilation of Relevant Cases			15 March 2024			918
A-Q		McGarrigle and NDIS FCA308			2017			924
A-R		NDIS ACT			2013			951
A-S		Luca Signed Statement Letter			17 March 2024			1259
A-T		Antonelli 2018 Effects of Spa Therapy on Stress Biomarker Review			2018			1261
A-U		Blasche 2010 Association of Spa Therapy with Improvement of Occupational Burnout_Study			2010			1273
A-V		Swedish Study of Effective Lighting amongst people with poor vision			23 January 2018			1278
A-W		Reasonable and Necessary References			Undated			1280
A-X		Scott Mewburn Letter of Statement Personal Trainer			Undated			1288
A-Y		Community OT Area Photos for Concreting (Duplicate)			Undated			1289
A-Z		Statement from O&M			Undated			1298
A-AA		Dr Kazunori Nakajima statement August 2020 (Duplicate)			14 August 2020			1302
A-D1		Existing Kitchen Sketch			Undated			1304
A-D2		Kitchen Design with Measurements			Undated			1305
A-Q1		Quote for Kitchen by Peter Gill Kitchen – Blackburn Kitchen (Duplicate)			15 April 2021			1316
A-Q2		Quote Pabst Constructions (Duplicate)			6 May 2021			1317
A-Q3		Quote Ascot Group-COT-21-0870-[Applicant’s Home Address] (Duplicate)			15 June 2021			1318
A-Q4			Kitchen Quote – Ausnorth			1 March 2024			1322
A-Q5			Quote John Kennedy Kitchen (Duplicate)			7 June 2021			1325
A-Q6			Quote Hoskins Flooring – Kitchen			12 April 2021			1327
A-Q7			Savory Masters Painting			24 March 2023			1328
A-Q8			Allen Paintin Quote			23 March 2024			1329
A-Q9			Quote, Care Creative Painting			23 March 2024			1331
A-Q10			ANP Painting Quote			24 March 2024			1332
A-Q11A			Quote NEFF N90 Cooktop			Undated			1334
A-Q11B			Picture of NEFF N90			Undated			1335
A-Q12			Ausnorth concreting driveway			1 March 2024			1336
A-Q13			Savory Master Painters Quote			24 March 2024			1338
A-Q14			Spa Maintenance Quote			Undated			1339
A-Q15			Grande Paving front Driveway (Duplicate)			24 March 2020			1340
A-Q16			WFM Service Concreting Quote (Duplicate)			15 February 2021			1341
A-Q17			Ausnorth Concreting back path Quote			1 March 2024			1342

Respondent’s evidence

1. For its part the Respondent engaged the Occupational Therapist, Ms Phi Van Houston[1] as an Independent Medical Expert (IME) who provided a report dated 5 May 2023 and a supplementary report dated 3 June 2024[2].

   [1] Joint Tender Bundle (JTB)

   [2] JTB

2. The full list of the documents initially relied upon by the Respondent is as follows:

R1	NDIS Plan (08.07.2024 – 08.07.2025)	9 July 2024	1344
R2	Report (amended), Phi-Van Houston (occupational therapist)	5 May 2023	1360
R3	Supplementary Occupational Therapy Report, Phi-Van Houston	3 June 2024	1399
R4	Further Supplementary Occupational Therapy Report	7 August 2024	1424
R5	NEEF Induction Cooktop specification information, publicly available	12 August 2024	1445
R6	Bosch Induction Cooktop specification information, publicly available	12 August 2024	1449

The Respondent, during the hearing, advised the Tribunal that it would no longer rely on the contents of Ms. Houston’s report. For that reason, I do not propose to outline the contents of that report other than as referred to in the Respondent’s statements of position to the Tribunal.

Applicant’s Position

1. Ms. QGRY outlined her position in her Statement of Facts, Issues and Contentions (‘SFIC’) dated 21 April 2024.

2. Due to the length and level of detail of her SFIC I do not propose to record in detail the minutiae of Ms. QGRY’s document rather identify its key elements particularly as they relate to the disputed supports.

3. Ms. QGRY provided a detailed and helpful summary of her various impairments and how they affect her lived experience and their relevance to the various requested supports.

4. She then provided her submissions as to why and how the various requested supports met the section 34(1) criteria.

   Kitchen Modifications

   Replacement kitchen cabinets

5. Replacement of the existing kitchen cabinetry was required to:

   ·Achieve front-on access to the proposed induction cooktop.

   ·Provide safety for Ms. QGRY in the kitchen.

   ·Provide accessible storage.

   ·Remove hazardous open doors and drawers.

   ·Fully utilize four cooking zones.

6. In terms of how the proposed modifications met the s 34(1) criteria, Ms. QGRY submitted that:

   ·There is clear medical and other evidence provided which establishes that they are directly related to her various impairments.[3]

   [3] JTB S2 39-42

   ·The modifications would increase her social participation and community engagement.[4]

   ·The modifications would reduce stress and improve her health and physical, emotional and mental well-being.[5]

   ·The modifications will assist her to pursue the goals in her plan including increased independence, having a home she can access without barriers and reduce risk.[6]

   ·The modifications would assist her to undertake activities and facilitate social and economic participation.[7]

   ·The modification represents value for money as it would increase her independence, reduce the need for assistance from support workers, and are in accordance with the NDIS Specialist Disability Accommodation Design Standard Edition 1:1 2019.[8]

   ·The costs of the kitchen modifications are reasonable relative to the benefits achieved. In this regard Ms. QGRY pointed to evidence establishing the long- term benefits to participants of accessible housing, the significant reduction in other funded supports, relatedly the benefits of her increased independence.[9]

   ·The cost of modifications is reasonable relative to the cost of alternatives. This would include the potential cost of Specialist Disability Accommodation (SDA) if Ms. QGRY was found eligible for this and the risk of further deterioration of her impairments in the absence of the modifications being in place.[10]

   ·There are not comparable supports that would achieve the same outcomes at a substantially lower cost. Ms. QGRY referred to a number of alternative lower cost options that had been explored but found to have significant drawbacks and limitations. She further stated that the partial modifications suggested by the Respondent would leave her in a significantly compromised position and would place her at risk.[11]

   ·There is evidence which establishes the modifications would substantially improve Ms. QGRY’s life stage outcomes and be of long-term benefit to her. In this regard, the suggested modifications can be expected to remain functional for many years and will improve her quality of life, level of independence, her overall well-being and reduce the risk of harm such as falls.[12]

   ·The provision of the kitchen modifications will significantly reduce the cost of other funded supports in the long-term. Ms. QGRY will be more independent if the modifications are in place and will be less reliant for assistance from her support workers. She provided several citations in support of this proposition. The modifications benefit will last a long time and the need to do other modifications in the future as her sight further deteriorates, will be eliminated.[13]

   [4] JTB S2 43

   [5] JTB S2 43-44

   [6] JTB S2 44-45

   [7] JTB S2 45-46

   [8] JTB S2 46-47

   [9] JTB S2 47

   [10] JTB S2 47-48

   [11] JTB S2 48-49

   [12] JTB S2 49

   [13] JTB S2 49-50

   Induction Stove Top

7. In terms of how the proposed modifications met the s 34(1) criteria, Ms. QGRY submitted that:

   oThere is clear medical and other evidence provided which establishes that they are directly related to her various impairments. In this regard Ms. QGRY stated that the current location of the existing cooktop is not suitable due to her vision impairment. It places her at risk due to the lack of natural light in that location.[14]

   [14] JTB S2 p 62-63

   ·A functional assessment by an Occupational Therapist indicated that the best location for a replacement cooktop was where the archway currently stands as it has an abundance of natural light.[15]

   [15] JTB S2 p 64

   ·Mr. McKeown has recommended the NEFF N90 (N90) cooktop as it has a range of features suitable for a vision impaired person including tactile controls, audible cues when temperature settings are altered and automatic shut-off of all the cooking zones in the event of a boil over.[16]

   ·The cooktop will assist Ms. QGRY in pursuing the goals in her plan as previously recorded in paragraph 27 above.[17]

   ·The cost of the cooktop is reasonable relative to the benefits achieved as the Respondent has conceded that the replacement and relocation of the cooktop is necessary.[18]

   ·The cost of the cooktop is reasonable relative to the cost of alternatives. While the Respondent has indicated that it would be prepared to fund a lower cost alternative, the only cooktop that meets the requirement of someone with a visual impairment is the N90 and there are no other alternatives with those features. Further there are no comparable stove tops that achieve the same outcomes at a substantially lower cost.[19]

   ·The proposed cooktop will substantially improve Ms. QGRY ’s life stage outcomes. In this regard she pointed to the benefits she experiences in her accessible kitchen in her other home in Queensland.[20]

   ·Funding of the proposed cooktop will be likely to reduce the cost of funding for her in the long term as the N90 should last a long time and will continue to meet her needs as her eyesight deteriorates further.[21]

   ·The proposed cooktop will increase her independence and reduce her need for other supports in the future including the assistance of support workers.[22]

   ·The proposed cooktop will be effective and beneficial for a range of reasons including it being accessible, functional and safe.[23]

   ·The proposed cooktop cannot be replicated by family carers and informal supports.[24]

   ·It is not a day-to-day living cost as the requested support is directly related to Ms. QGRY’s vision impairment.[25]

   [16] JTB S2 64

   [17] JTB S2 65-68

   [18] JTB S2 68

   [19] JTB S2 68

   [20] JTB S2 68

   [21] JTB S2 68

   [22] JTB S2 69

   [23] JTB 69-70

   [24] JTB S2 71

   [25] JTB S2 72

   Concreting driveway and installing a rear pathway

8. The driveway is presently in poor condition and represents a risk to Ms. QGRY due to the risk of tripping or falling on its uneven surface.

9. The proposal is for the re-concreting of the driveway being 10.08 metres in length and a width of 3.1 metres at the entry point and 2.25 metres at the roadside. It is further proposed that a concrete pathway be installed being 10.087 metres in length and 1.2 metres wide to enable access to the clothesline and the storage shed.

10. In terms of how these proposed modifications met the s 34(1) criteria, Ms. QGRY submitted that:

    ·It is related to her disability due to her inability to safely traverse the driveway due to the combination of her vision and physical impairments. As a result, she is at high risk of tripping, falling and becoming disoriented.[26]

    [26] JTB S2 75-77

    ·It will assist her in pursuing the goals set out in her plan. This includes facilitating her independence, removing barriers to achieving that goal, increased social participation and community engagement, reduction in stress and improvement in health and well-being, having a safe and accessible home and assist in her social and economic participation.[27]

    [27] JTB S2 77-81

    ·It represents value for money arising out of the significant benefits it will provide her and the reduction of risk of injury resulting in more cost to the public purse.[28]

    ·The costs are reasonable relative to the benefits achieved to Ms. QGRY’s independence, social participation, health and safety.[29]

    ·The costs are reasonable relative to the cost of alternatives as the alternatives are not as durable, practical or offer the same level of accessibility. Alternatives considered included patching or conducting minor repairs to the driveway or installing a grab rail on the left side of the driveway.[30]

    ·There are not comparable supports able to achieve the same outcome at substantially lower cost. The cheaper option that was considered was the installation of a pathway next to the left-hand side of the driveway. This was found by the Engineer at DGM Consulting to be impractical as it would not be cost effective, long lasting or comply with building codes. [31]

    ·The support will substantially improve life stage outcomes for Ms. QGRY particularly in the areas of safety and removing the risks of falls.[32]

    ·It is likely to reduce the cost of funding supports in the future.[33]

    ·It will increase her independence and reliance on other supports.

    ·It will be effective and beneficial.[34]

    ·It is not a day-to-day living cost, as the requested support is solely and directly related to her disability.[35]

    ·Overall, the concreting of the driveway and the installation of a concrete path in the backyard of the house will increase Ms. QGRY’s independence maintain her employment and economic engagement, significantly decrease risk and reduce reliance on other funded supports.[36]

    [28] JTB S2 81

    [29] Ibid 81

    [30] Ibid 82

    [31] Ibid 82-83

    [32] Ibid 83

    [33] Ibid 83

    [34] Ibid 85-87

    [35] Ibid 88

    [36] Ibid 88-90

    Lighting upgrade

11. I note that the Respondent in its post-hearing submissions conceded that the request for increased lighting in Ms. QGRY’s home met the section 34(1) criteria, so in my view it is not necessary for me to record Ms. QGRY’s submissions here.

    Contrast painting

12. Similarly, the Respondent conceded in its final submissions that the need for high contrast painting in the kitchen was reasonable and necessary but did not concede this in relation to the contrast painting for the architraves and skirting boards. I will return to this topic under my assessment of the evidence.

    Spa maintenance

13. Ms. QGRY stated that the need for a home spa and its maintenance was related to her disability due to the stress and fatigue, which in terms of her primary vision impairment conditions, can lead to further deterioration and the loss of her residual eyesight.[37]

    [37] Ibid 121

14. In addition, Ms. QGRY has several physical conditions such as bursitis and plantar fasciitis which cause pain, inflammation and loss of mobility and the use of the spa is an integral part of her management of these symptoms.[38]

    [38] Ibid 121-122

15. In terms of how the proposed spa maintenance met the s 34(1) criteria, Ms. QGRY submitted that.

    ·It will assist her in pursuing her goals if independence, social participation economic engagement, reduce stress and improve overall wellbeing by having a safe and accessible home.[39]

    ·Having a functioning spa will assist her to undertake activities and economic activities as it will alleviate her physical impairments and assist in her continued employment.

    ·It represents value for money as having a support worker perform the task of monitoring the chemical balance would cost at least $60 per hour twice a month whereas the anticipated cost of having a maintenance company do this would be $110.

    ·The cost is reasonable compared to the benefits achieved due to the direct link to Ms. QGRY’s goals and the NDIS rules and the significant improvement in her ability to live independently.

    ·In terms of whether the costs are reasonable relative to other alternatives, Ms. QGRY pointed to the Respondent not approving requested physiotherapy sessions, which could have addressed the same concerns, and the ability to access the spa on a regular basis will provide affective relief of muscle pain and emotional stress.

    ·As previously noted, the engagement of a contractor to manage the chemicals in her pool will be cheaper that having a support worker perform this task and therefore will likely reduce the cost of other funded supports over time.

    ·The spa maintenance will increase her independence and reduce the need for other supports in the long-term as she will not need to use a support worker to do this and will enable her to travel to Queensland to care for her mother knowing that the spa will be maintained in her absence.

    ·In terms of the support being a day-to-day expense, Ms. QGRY noted that she is meeting the general cost of having the spa. However, the maintenance is reasonable to manage her physical impairments which is necessary to avoid them negatively impacting her vision impairment.

    [39] Ibid 122-124

    Respondent’s Position

16. From the time of Ms. QGRY filing her appeal, both she and the Respondent lodged with the Tribunal several documents outlining their respective positions. The Respondent’s most recent of these was provided on 17 June 2024 as well as an addendum lodged on 12 August 2024.

17. In its SFIC the Respondent outlined the supports Ms. QGRY had requested which remained in issue. These included the cost of:

    (i)Monthly spa maintenance at a cost of $110.00.

    (ii)Repairs to the front driveway.

    (iii)A footpath to access the clothesline at the rear of the house.

    (iv)High contrast painting of wall and architraves throughout the home.

    (v)Additional task lighting (as per Mr. McKeown’s letter of 17 January 2024).

    (vi)New bench tops raised to 1020 mm and 720 mm deep.

    (vii)New kitchen cabinets with pull out drawers and doors that open to 180 degrees.

    (viii)Removal of internal archways so as to make the kitchen and dining areas a single room.

    (ix)New vinyl flooring.

    (x)High contrast painting in the kitchen.

    (xi)Removal of existing gas stove top and installation of a Neff N90 Flex Induction Cook Top.

18. Before addressing the requested supports in specific terms, the Respondent made several general observations.

19. The first was that it is open for the Tribunal, in accordance with McGarrigle v National Disability Insurance Agency [2017] FCA 308; 252 FCR 121, to find that some of the requested kitchen modifications were reasonable and necessary while finding that others did not meet those criteria.

20. That in general terms and applying Warwick v National Disability Insurance Agency [2024] FCA 616 home maintenance costs should properly considered be viewed as day-to-day living costs even if they are incurred infrequently.

21. Referring to r 5.1(d), that expenses must be attributable to a participant’s disability support needs and if they are not, they are therefore excluded.

22. The Respondent also referred to the question as to whether supports may be provided for Ms. QGRY’s other physical impairments aside from her vision impairment. The Respondent then addressed the specific requested items.

    Spa Maintenance

23. The Respondent stated that Ms. QGRY uses the spa to help relieve chronic stress and manage chronic pain in her shoulder and ankles. She requires someone to provide maintenance for the spa as her support workers will not do so due to concerns about handling chemicals.

24. The Respondent stated that the requested support did not represent value for money (s 34(1)(c)) as there are lower cost alternatives. Further, there was limited value as to the benefits of using the spa and it was not related to her disability.

25. The Respondent conceded that a digital water quality tester as recommended by Ms Van Houston would meet the s 34 criteria.

    Front Driveway

26. Ms. QGRY has requested that her front driveway be paved with concreting to provide an even surface so she could safely access her home.

27. The Respondent stated that it relied upon the evidence of Ms. Houston which indicated that an uneven surface would place people without a disability at risk and her opinion should be given greater weight than letters provided by Ms. QGRY’s neighbours which indicated that the driveway is safe for people without vision or mobility impairments.

28. Based on this evidence, the Respondent submitted, the proposed concreting was not related to Ms. QGRY’s disability and as it related to her obligation to maintain her property, it is a day-to-day expense.

29. The Respondent further submitted that the proposed driveway did not represent value for money as Ms. Houston had suggested a lower cost alternative, namely a confined footpath.

    Rear Footpath

30. Ms. QGRY is seeking a concrete path in her backyard. This area is presently grassed with a partial pathway made of bricks. This would enable her to safely access her clothesline and rear storage shed. The current situation makes her at risk of falls and losing her way in the backyard.

31. The Respondent noted that there was no current evidence of Ms. QGRY having had falls in her backyard.

32. The Respondent cited several pieces of evidence which indicated that Ms. QGRY can independently mobilise around her home.

33. Further, the Respondent stated that the proposed path did not represent value for money as the benefits were limited, as Ms. QGRY could hang her laundry on a rack on her rear deck and could have her support workers assist her if she needed to get items from her storage shed. In addition, a lower cost alternative was extending the existing brick pathway.

    Internal Painting in the home

34. Ms. QGRY has requested contrast painting throughout the house to assist her to better and more safely navigate in her home, reduce eye strain and mental fatigue, and have her feel more comfortable having other people in her home.

35. The Respondent submitted that the requested support did not represent value for money as she can independently mobilise in her home, there was limited evidence as to the benefits and no medical evidence of eye strain or why she would feel more comfortable hosting others with the contrast painting in place.

36. The Respondent further submitted that the request amounted to a day-to-day expense as it related to property maintenance.

    Additional task lighting

37. The Respondent noted that it had agreed to include in Ms. QGRY’s current plan, funding for task lighting placed within the existing cabinetry in several locations in her home.

1. In relation to the further task lighting installations, the Respondent did not accept that it represented value for money or would likely be beneficial and effective.

2. In assessing the various locations where the additional task lighting had been requested, the Respondent either raised the objections referred to in the previous paragraph or indicated that there was insufficient evidence to establish the need for such lighting in that location.

   Kitchen Modifications

3. The Respondent stated that Ms. QGRY has asserted that the proposed kitchen modifications will enable her to cook and prepare food more safely, independently, and efficiently for herself and others.

4. For its part, the Respondent relied upon the most recent report of Ms. Houston and stated that it considered Ms. Houston’s proposals would achieve similar outcomes to what Ms. QGRY is seeking.

5. Ms Houston’s recommendations were as follows:

   (a)Installation of a larger pantry in the same location as the existing pantry

   (b)Replacing the wall oven with a free-standing 60cm induction stove top between the refrigerator and the old gas stove top and adding shelving or mounted racks to this area. This has the advantage of ensuring kitchen appliances, the refrigerator, cupboards, and crockery are closely co-located.

   (c)Remove the kitchen bench and replace with a mobile island kitchen bench. That kitchen bench can be raised with a piece of timber or large castors. The cost of the mobile bench – prior to adjustments is around $400 - $500.

   (d)Provide a soft close, pull-out 3 tier basket to the right of the stove to house essential spices, oil, etc. for cooking. The example would cost around $170.

   (e)Shelving, or in the alternative, racks above the free-standing stove.

   (f)Install custom-built cupboards for storage either side of the archway..

6. The Respondent asserted that Ms Houston’s proposals would be more cost effective as they would not require the demolition of the existing kitchen, removal of the internal archways and replacing the kitchen cabinets.

   Induction Cooktop

7. Ms. QGRY has requested funding for a NEFF N90 Flex Induction Cooktop (N90) as it has tactile controls, provides audible cues when temperature settings change, has smart cooking zones, and safety shut off in the event of a boil over.

8. The Respondent did not consider the N90 represented value for money as there are two lower cost alternatives referred to by Ms. Houston in her report.

9. The other objections to the N90 raised by the Respondent are:

   ·Mr McKeown had not identified what safety features Ms. QGRY requires or whether alternative cooktops may have sufficient safety features.

   ·Ms. QGRY ’s wish for a larger cooktop to enable her to host others is a preference not related to her disability.

   ·Ms. QGRY ’s preferred location for the cooktop would not be effective and beneficial as per s 34(1)(d) of the Act.

   ·Further evidence from Ms. QGRY’s builder is required to establish the need for Ms. QGRY’s preferred location and the need for ancillary works to enable this to be done.

   ·Mr McKeown’s report does not detail the alternative locations for the cooktop and appear to have not been considered. No alternative cooktops appear to have been considered. The evidence does not establish that there is no alternative to the N90 cooktop, or that the proposed location is essential.

   Removal of archways

10. The Respondent stated that it did not accept that the removal of the first or second archways met the criteria in s 34(1)(c) and (d) in that Ms. QGRY can install a new cooktop without removing the two archways.

11. The removal of the two archways is not related to Ms. QGRY’s disability but rather is an expression of her desire to have a combined kitchen and dining room. As such this is prohibited by rule 5.1(b). It further submitted that such an expense was a day-to-day expense prohibited by rule 5.1(d), although it reserved the right to make further submissions taking account of the Warwick decision.

    Kitchen Benches and Cabinets

12. The Respondent outlined the asserted disability-related benefits of the proposed benches and cabinets including reducing the need for Ms. QGRY to bend over while cooking, provide more depth and reduce clutter, and preventing items from falling off the bench.

13. The asserted benefits of the new cupboards and pull-out drawers are they prevent Ms. QGRY colliding with open cupboards, providing greater natural light in the cupboard interiors and easier access and better enable her to identify items in the cupboards and drawers.

14. The Respondent states that the proposed replacement cupboards and drawers did not meet the beneficial and effective criteria in s 34(1)(c) as any potential benefits would be limited and there was not medical or other evidence establishing risk of injury or Ms. QGRY’s physical inability to bend or kneel.

15. Additionally, the Respondent asserted that there are lower cost alternatives including raising the existing benches, using silicone mats to prevent roll overs, the provision of a mobile storage trolley, slimline cupboards, installing three tier baskets in the dishwasher or forgoing cupboard doors altogether. Ms Houston in her report had proposed a number of these alternatives.

16. The Respondent submitted that replacement of the cabinetry amounts to home maintenance and not related to Ms. QGRY’s disability needs.

    Flooring

17. Ms. QGRY has requested the removal of the carpet in the existing dining room as it constitutes a trip hazard and is unable to see when foods falls onto that surface.

18. The Respondent asserts that Ms. QGRY can safely navigate her way around her home including areas with carpet.

19. Cheaper alternatives include utilising the three hours per week in her plan allocated to house cleaning, using the iRobot vacuum cleaner, or having the carpets dry cleaned.

20. The Respondent further asserts that the requested support is not related to Ms. QGRY’s disability and constitutes a day-to-day living expense.

    High contrast painting in kitchen

21. The Respondent states that while it accepts that such painting will be effective and beneficial and value for money, it is a day-to-day expense and therefore prohibited by rule 5.1(d).

    History before the Tribunal

22. Over the course of the following four years the matter was the subject of a number of conferences and other administrative steps including the parties lodging several statements outlining the facts of the matter and their respective submissions on how the Tribunal should determine the requested supports. For the purposes of this decision, I intend to restrict my recording of these to those submitted immediately before the hearing of the matter.

23. The matter had previously been constituted to Deputy President Melick and was later constituted to me in the second half of 2024.

    Respondent’s update of position at hearing

24. After the first day of the hearing, the Respondent advised that it had changed its position with respect to several matters it had previously disputed. These were as follows:

    (i)The Respondent accepts that the concreting of the front driveway is a disability related support, and subject to provision of an updated and reasonable quote, will meet s 34 of the Act.

    (ii)The Respondent accepts in principle that high contrast paint in the kitchen is a disability-related support and subject to provision of an updated and reasonable quote, will meet s 34 of the Act.

    (iii)The Respondent given Warwick does not contend that concreting in the back path, removal of archways in the kitchen, high contrast painting throughout the house, or replacing the kitchen benches are day-to-day living costs. Therefore, none of them are prohibited from being funded pursuant to r 5.1(d) of the Rules. The Respondent reserves its position in relation to the kitchen cupboards.

    (iv)The Respondent accepts the 8-in-1 Spa Tester proposed by Ms. QGRY is a reasonable alternative to spa maintenance. The Respondent does not accept spa maintenance meets section 34.

25. As a result of those concessions, the Respondent advised that the following requested supports continued to be an issue to be determined by the Tribunal.

    (i)Additional lighting in the back deck; corridor to the front door; attic; laundry; home office; and recreation room.

    (ii)The replacement of the kitchen cabinetry, removal of the archway to install an induction cook top, and removal of the second archway.

    (iii)Spa maintenance.

    (iv)The concrete pathway in the backyard.

    (v)High contrast painting in parts of the home other than the Kitchen.

    (vi)The precise induction cooktop that may be reasonable and necessary.     .

26. Subject to the Respondent advising of its final position in its post-hearing submissions, these issues in dispute will be those considered in this decision.

    Hearing

27. The parties advised the Tribunal by way of a witness schedule that the following witnesses would give evidence on behalf of Ms. QGRY.

    ·Ms. QGRY.

    ·Mr Luke McKeown (Occupational Therapist).

    ·Mr Jason Stankowski (Orientation and Mobility Specialist)

28. The matter was then heard between 4 and 6 September, 26 September and concluding on 4 October 2024. Given the sheer volume of evidence given over five separate days, I do not propose to record what each witness said in detail but will refer to that evidence when required in my consideration of the issues in the final section of this decision.

    Evidence for the Respondent

29. As noted earlier, the Respondent’s counsel advised the Tribunal on the first day of the hearing, that it would not be relying on the reports prepared by Ms. Thi Van Houston and consequently would not be calling her to give evidence.

30. It is important to note that while the hearing of evidence ended on 4 October 2024, due to the Respondent’s decision to make various concessions during the conduct of that hearing and then later withdrawing those concessions in its post-hearing submissions, this caused significant procedural fairness issues for Ms. QGRY. The Tribunal listed this issue to be discussed at a further direction hearing on 21 November 2024 and based on those discussions, the Tribunal reopened the hearing to address these issues on that date.

    LEGISLATIVE AND POLICY FRAMEWORK

31. The NDIS has been in operation for 12 years. It is landmark social legislation dedicated to the idea that people with disability have the right to realise their potential for physical, social, emotional and intellectual development.[40] This is one of a series of general principles guiding actions set out in section 4 of the Act. Other important principles in section 4 of particular relevance to the present case include:

    (2)  People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability…

    (4)  People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports (…)

    (5)  People with disability should be supported to receive reasonable and necessary supports, including early intervention supports…

    (11)  Reasonable and necessary supports for people with disability should:

    (a)  support people with disability to pursue their goals and maximise their independence; and

    (b)  support people with disability to live independently and to be included in the community as fully participating citizens; and

    (c)  develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.

    [40] National Disability Insurance Scheme Act 2013 (Cth), subsection 4(1).

32. The NDIS is administered by the NDIA established under the Act. The Act sets out the matters that must be included in a participant’s plan. Subsection 33(2) provides:

    A participant's plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:

    (a)  the general supports (if any) that will be provided to, or in relation to, the participant; and

    (b)  the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and

    (c)  the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and

    (d)  the management of the funding for supports under the plan (see also Division 3); and

    (e)  the management of other aspects of the plan.

    90.Subsection 33(5) provides:

    In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:

    (a)have regard to the participant’s statement of goals and aspirations; and

    (b)have regard to relevant assessments conducted in relation to the participant; and

    (c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and

    (d)apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and

    (e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and

    (f)have regard to the operation and effectiveness of any previous plans of the participant; and

    (g)have regard to whether section 46 (acquittal of NDIS amounts) was complied with in relation to any previous plan for the participant.

    91.Section 34 (as recently amended) provides:

    Reasonable and necessary supports

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

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

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

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

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

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

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

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

    Note:       For the purposes of paragraph (aa):

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

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

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

    92.It is important to note that for a support to be approved it must meet all of the listed criteria. If a requested support fails to satisfy any one of the criteria, it cannot be approved.

    93.The term “support” is not given a meaning in the NDIS Act. A “support” is defined in section 9 of the NDIS Act as including “general supports”, being those defined in subsection 13(2) as the kind of supports provided by the Agency itself. However, the term “support” and the phrase “reasonable and necessary” are not further defined in the NDIS Act. In McGarrigle v National Disability Insurance Agency [2017] FCA 308 at 91 (‘McGarrigle’), Mortimer J observed, with respect to those words:

    Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.

    94.The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (“the Rules”) made pursuant to subsection 35(1) of the NDIS Act provides further guidance with respect to the assessment of reasonable and necessary supports that will be funded. Pursuant to section 209 of the NDIS Act, the Rules are a legislative instrument and are therefore binding to the Tribunal. In this case the relevant Rules include:

    Value for money

    • 3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:

    (a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;

    (b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;

    (c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);

    (d) for supports that involve the provision of equipment or modifications:

    iii.the comparative cost of purchasing or leasing the equipment or modifications; and

    iv.whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;

    (e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;

    (f) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).

    95.Also, relevant here are the NDIS Operational Guidelines.

    96.The NDIS Act and its Rules are supplemented by operational guidelines. The operational guidelines represent government policy and, to the extent that they are consistent with the relevant legislation, should be applied by the tribunal unless there is a sound reason not to do so.[41]

    [41] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; Madelaine and National Disability Insurance Agency  [2019] AATA 4025.

    97.The National Disability Insurance Scheme Operational Guidelines – Planning provides:

    This Operational Guideline provides an overview of the National Disability Insurance Scheme (NDIS), including the legal and policy framework it operates within and the variety of different ways it provides support and assistance to people with disability.

    In addition, this Operational Guideline outlines the objects and general principles of the National Disability Insurance Scheme Act 2013 and provides a summary of the information which is available in the remainder of the NDIS' Operational Guidelines.[42]

    [42] National Disability Insurance Agency, ‘Operational Guidelines: Overview of the NDIS Operational Guideline’ < addition to the general guidelines for supports, additional relevant guidelines are those published by the Respondent under the heading ‘Home Modifications’. The following is a summary of the key aspect of the guidelines relevant to the funding of such a support:

    a.It must relate to the participant’s disability, which contemplates how the home modification will help them to do things they find difficult due to their disability, or whether the home modification will result in the participant needing less help.

    b.It needs to help the participant pursue their goals (which considers how their disability prevents them from doing so) and participate more in social or work life, such as by enabling them to do things more independently.

    c.It should do what the participant needs it to do or make things better for them by helping them to do more things themselves, which will demonstrate that it is effective and beneficial for the participant.

    d.It must represent value for money, compared not only with the benefits the participant will derive from the home modification, but also with other supports that would achieve the same outcome. Considerations include:

    i.the age and condition of the home, if there are structural problems that wouldn’t support the modification, or if the property needs a lot of work to make it accessible;

    ii.how the home modification compares to the cost of moving to a more accessible home;

    iii.if the home modification will help reduce the risk of fatigue or injury to the participant or to a carer.

    Modifications such as extensions that make a home bigger will not generally be funded.

    99.Under 3.2 the Overview Page sets out what the NDIS Operational Guidelines cover. There are ten headings, across a range of topics, from Access to the NDIS, to Review of Decisions. One of those topics is headed ‘Including Specific Types of Supports in Plans’. This leads to a further page with 14 categories, one of which relates to Home Modifications. The Home Modifications Policy is set out at this point.

    100.I set out part 5 of the Including Specific Types of Supports in Plans Operational Guideline in full:

    5. Home modifications

    Home modifications are changes to the structure, layout or fittings of the participant’s home that are required to enable the participant to safely access and move around frequently used areas in their home as a result of their disability.

    It is expected that a home modification would only be considered where the home to be modified is the participant’s primary residence and the participant intends to remain living at the residence. If the property is a rental property, then the written agreement of the owner of the property will be required before any modifications take place.

    There are a number of laws and regulatory frameworks, for example Building Codes and Australian Standards which regulate home modifications. The NDIA is unable to fund home modifications which, if provided, would be contrary to a law of the Commonwealth, state or territory (see which supports will not be funded or provided under the NDIS.

    Therefore, the NDIA must be satisfied that there are no laws, regulations or other planning restrictions which would prevent the home modifications being undertaken.

    In addition, the NDIA must also be satisfied, amongst other matters, that the home modification being considered 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 (section 34(1)(c)).

    When determining whether home modifications represent value for money, the NDIA will specifically consider:

    ·whether the proposed home modification represents value for money when compared to the cost of other lower cost alternatives, for example less costly home modifications which reasonably achieve the same intended benefits or outcomes, or assistive technology;

    ·whether the proposed home modification is cost effective when compared to the cost of other supports such as assistance with the cost of moving to accessible premises; and

    ·the expected length of tenure for participants and whether this is commensurate to the cost of the home modifications.

    The NDIA must also be satisfied that the provision of the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice (section 34(1)(d)).

    Therefore, before including home modifications in a participant’s plan, the NDIA will also consider whether the home is suitable to be modified, including having consideration to:

    ·any structural constraints such as size, surrounding terrain, or the condition of the building; and

    ·whether the homeowner, and where applicable, any body-corporate, agrees and gives their permission for modifications to be made.

    When complex and extensive home modifications are being considered, the NDIA may also fund oversight by a project manager or independent building certifier to ensure compliance of the modification and a qualified and experienced Occupational Therapist to certify the effectiveness of the modification to meet the participant’s goals and likely future needs.

    Generally, the NDIA will fund reasonable and necessary home modifications:

    ·to the participant’s primary residence where, due to the impact of the participant’s disability, the participant or their carers are unable to reasonably access and use frequently used rooms and spaces using standard fixtures and fittings;

    ·when the participant’s primary residence, in its current condition, has a significant and adverse impact on the sustainability of current living and care arrangements; and

    ·where a suitably qualified Occupational Therapist has performed an assessment and recommended home modifications considering all possible alternatives, including the use of equipment.

    Generally, the NDIA will also fund reasonable and necessary supports that are related or incidental to home modifications which may include:

    ·assistance with the cost of moving to accessible premises as an alternative to home modifications where this is cost effective to provide access. Generally, it would be expected that any new premises selected provide appropriate access and that any further modifications would be very basic and low cost. Potential costs that may be covered include:

    i.costs associated with selling the participant’s current property, for example advertising, agents fees and legal costs;

    ii.costs associated with the purchase of the alternate property, for example stamp duty and legal costs;

    iii.removalist costs; and

    iv.minor modifications to install special equipment if necessary.

    ·additional costs incurred if the NDIA recommends or requires the use of qualified builders, trades people, project managers, building certifiers, building assessors or occupational therapists;

    ·the costs of normal repairs and maintenance to specialised fittings and assistive technology that have been installed as part of a home modification; and

    ·costs related to council or other building approvals which are payable as a result of the required home modifications.

    The NDIS will generally not fund:

    ·fixtures, fittings or materials which are above standard grade.

    ·modifications for a property purchased after a participant was granted access to the NDIS, unless the NDIA was involved in the decision to purchase the property, or the purchase of a more accessible property was not possible;

    ·the installation of swimming pools (including hydrotherapy) and spas;

    ·repairs or remediation of damage to the home that is pre-existing or discovered during the modification process.

    ·any additional insurance premiums which may be payable to insure the property once the required home modifications are completed.

    ·ongoing repairs and maintenance to non-specialised structures, fixtures or fittings of the home even when these form part of the modification work. For example, repainting a modified bathroom and maintaining plumbing;

    ·remediation of work that does not comply with the specifications of work or did not comply with the Building Code or relevant Australian Standards (this is the responsibility of the builder);

    ·for modifications to be removed when a person no longer requires them, except when there has been prior agreement in the case of a rental property;

    ·home modifications to group homes, residential facilities and other specialist accommodation, or other public buildings, including boarding schools; and

    ·capital building additions such as additions of rooms, stories or lifts or inclinators to allow access to multiple levels of a home or steep blocks of land. However, when considering whether the funding of items of this kind is reasonable and necessary the NDIA will also consider:

    i.whether other parts of the house can be reasonably organised as an alternative;

    ii.whether alternate accommodation which is more accessible or more easily modified is available and the cost;

    iii.whether there are compelling factors related to the participant, their family, community or employment which makes moving premises unrealistic; and

    iv.the long-term costs and benefits of alternative funded supports against the costs and benefits of the modifications to the home.

    v.See also is the support most appropriately funded or provided through the NDIS. In particular, housing and community infrastructure.

    It is generally expected that home modifications will be suitable for the participant’s anticipated long term needs. Therefore, it is unlikely that further modifications will be funded for the same premises except where there are unforeseen and significant changes to the participant’s needs.

    Where the NDIA has funded complex or extensive modifications and the participant, or their family subsequently sells the property the NDIA expects:

    ·future premises selected will be as accessible as possible;

    ·money from the sale of the first property, commensurate with the value of the modifications funded by the NDIA will be directed towards modifying the participant’s new premises; and

    ·if there is more than one residence that a participant needs to access, for example, because of shared parenting arrangements or holiday homes, modifications to the second property will be restricted to access and basic hygiene requirements.[43]

    [43] National Disability Insurance Agency, ‘Including Specific Types of Support in Plans Operational Guideline – Home modifications’ < type="1">

    The Operational Guidelines for Home Modifications (‘OGHM’) is a policy statement developed by the NDIA to assist applicants and decision-makers in relation to specific situations.  The specific paragraphs on which the Respondent relies (underlined above) are to be found at the end of a lengthy statement, which is itself buried on the relevant site, three levels deep.

    Recent Amendments to the NDIS Act and Rules

    Before moving on to the evidence and consideration of the case, it is important to refer to recent amendments to the NDIA Act and related Rules. These recent amendments are important as they in large part form the basis of the Respondent’s post-hearing submissions as they relate to several of Ms. QGRY’s requested supports.

    As of 3 October 2024, the NDIS Act was amended under the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act (‘Amending Act’).

    Under the Amending Act new Rules were also put into effect. Of particular relevance to this matter, is the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (‘the Transitional Rules’).

    The Amending Act and the Transitional Rules are designed to provide greater clarity as to what types of requested supports will receive funding approval under the Act and those supports that generally will not be approved. These categories of ‘NDIS supports’ and ‘not NDIS supports’ are listed in schedules 1 and 2 respectively in the Transitional Rules.

    As noted in paragraph 89 above, as a result of the Amending Act section 34(1) now reads as follows:

    (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).

    Rule 5 of the Transitional Rules is as follows: 

    What supports are NDIS supports—general rule.

    Supports that are NDIS supports unless otherwise provided:
    (1) For the purposes of subsection 10(1) of the NDIS Act, a support covered by column 2 of an item in the table in clause 1 of Schedule 1 to this instrument is an NDIS support (subject to subsections 10(4) and (9) of the NDIS Act and subsection (2) of this section) for:
    (a) participants specified in column 3 of the item who have old framework plans; and
    (b) prospective participants specified in column 3 of the item, other than prospective participants who, if they were participants, would be required to be given notice under subsection 32B(2) of the NDIS Act (participants that are to have new framework plans).
    Note 1: Subsection 10(4) of the NDIS Act allows supports to be declared to not be NDIS
    supports for participants or prospective participants. Those supports are declared under
    subsection (2) of this section.

    Note 2: Subsection 10(9) of the NDIS Act provides that a support is not an NDIS support for a
    participant or prospective participant if the support consists of the provision of:
    (a) sexual services; or
    (b) alcohol; or
    (c) drugs, the possession of which is a contravention of a law of the Commonwealth,
    a State or a Territory.

    Supports that generally are not NDIS supports:
    (2) For the purposes of subsection 10(4) of the NDIS Act, a support covered by column 2 of an item in the table in clause 1 of Schedule 2 to this instrument is not an NDIS support for any participant (subject to subsection 10(6) of the NDIS Act) or prospective participant.
    Note 1: Subsection 10(6) of the NDIS Act allows the CEO, on application by a participant, to determine that a support is taken to not be declared under subsection 10(4) of that Act
    in relation to the participant if, among other things, the CEO is satisfied that the support
    would replace one or more other supports that are NDIS supports for the participant.
    Note 2: Determinations under subsection 10(6) of the NDIS Act are referred to in this
    instrument as replacement support determinations. For additional rules about replacement support determinations, see section 7 of this instrument.

    This rule gives effect to section 10(4) of the NDIA Act which states that the Support Rules may declare that a support is not a NDIS support for a participant or a prospective participant.

    Schedule 2 of the Rules contains a categorised list of requested supports that are declared not to be NDIS supports. Once again, the relevant section is listed below:

    Schedule 2—Supports that generally are not NDIS supports:

    Note: See subsection 5(2)

    1 Supports that generally are not NDIS supports.
    The following table sets out supports that are not NDIS supports for:

    (a) a participant (unless a replacement support determination covering the support is in force for the participant); or
    (b) a prospective participant.

    Supports that generally are not NDIS supports.
    Column 1 Column 2
    Item Category Supports
    1 Day-to-day living costs — accommodation and household
    The following:
    (a) –(b) –
    (c) – standard home security and maintenance costs, fencing, gates and building repairs;(d) pools, pool heating and maintenance, spa baths, saunas, and steam rooms;(e) standard home repairs. Home improvements standard renovations and maintenance.

    Also, of importance to an assessment of this matter is both section 10(6) of the NDIA Act and Rule 7 of the Transitional Rules.

    Section 10(6) is as follows:

    The CEO may determine, in writing, that a support is taken to not be declared under

    subsection (4) in relation to a participant if:

    (a) the support is prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and

    (b) the support would, apart from subsection (4), be an NDIS support for the participant; and

    (c) the participant applies to the CEO in accordance with subsection (7) for the determination; and

    (d) the CEO is satisfied that:

    (i) the support would replace one or more other supports that are NDIS supports for the participant; and

    (ii) the cost of the support is the same or lower than the total of the costs of the supports it would replace; and

    (iii) the support would provide the same or a better outcome for the participant than the supports it would replace; and

    (iv) any other conditions specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph are met in relation to the support, the participant, or bot

    Rule 7 of the Transitional Rules is as follows:

    Replacement support determinations
    Supports for which determinations may be made:
    (1) For the purposes of paragraph 10(6)(a) of the NDIS Act, the CEO may make a replacement support determination in relation to a support covered by column 1 of an item in the table in subsection (3) of this section.
    (2) For the purposes of subparagraph 10(6)(d)(iv) of the NDIS Act, the CEO must be satisfied that the conditions set out in column 2 of an item in the table in subsection (3) are met before making a replacement support determination in relation to a support covered by column 1 of the item.
    (3) The table is as follows:
    Replacement support determinations
    Column 1 Column 2
    Item Supports Conditions
    1 Standard commercially available household items
    The support must:
    (a) be necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements; and
    (b) increase whole task independence; and
    (c) reduce or eliminate the need for a support worker or disability specific assistive technology.

    What these two provisions indicate is that a participant may apply to have a support that would otherwise be considered as not a NDIS support considered as a replacement support determination, subject to it meeting the requirements specified in Rule 7(3).

    I should note that while it is open to a participant to apply to the Agency to have a support considered as a replacement support, it is not something that the Tribunal can consider as part of a review or has the jurisdiction to do so.

    I shall return to the effect of the Transitional Rules in this case when I consider whether the requested additional support can be found to be reasonable and necessary under the NDIS Act. However, I note that the Transitional Rules came into effect on 3 October this year and just prior to when the hearing of evidence had concluded.

    Post hearing

    As previously noted, it is important to note that while the hearing of evidence ended on 4 October 2024, due to the Respondent’s decision to make various concessions during the conduct of that hearing and then later withdrawing those concessions in its post-hearing submissions, this caused significant procedural fairness issues for Ms. QGRY. The Tribunal listed this issue to be discussed at a further direction hearing on 21 November 2024 and arising out of those discussions, the Tribunal reopened the hearing to address these issues on this date, as noted above in paragraph 85.

    At the conclusion of the directions hearing, I issued directions to the parties to provide written submissions addressing the effect of these legislative changes to this matter. In this regard I directed that the Respondent provide its submissions on or before 28 October 2024, with the Applicant providing hers by 4 November 2024, and then allowed Ms. QGRY until 22 November to provide any reply to the Agency’s submissions.

    The Respondent’s submissions were received on 28 October 2024

    The Respondent stated that it maintains its position that the following supports do not satisfy s 34(1)(c) of the NDIS Act:

    ·The replacement of the existing driveway.

    ·The proposed kitchen modifications (including new benches, pantry and drawers).

    ·Removal of the first archway.

    ·Removal of the second archway.

    ·Concreting the path in the backyard.

    ·High contrast painting of architraves and skirting boards.

    ·Spa maintenance.

    The Respondent further advised that it had reversed its earlier concession regarding the concreting of the front driveway as the requested support does not meet the revised s 34(1)(f) which requires a decision-maker to be satisfied that a requested support meets the criteria of a defined NDIS support.

    The Respondent further stated that it did not accept that spa maintenance, an induction cooktop (of any model), or removing vinyl flooring satisfies s 34(1)(f).

    The Respondent confirmed that it accepts the request for increased lighting meets the s 34 criteria and should be approved as per the amount quoted.

    The Respondent also confirmed that the high contrast painting in the kitchen, removal of the gas stove top and repair of the bench, and support for a new pantry satisfies s 34, but did not understand that there are discrete quotes for these supports.

    Listed below are the Respondent’s submissions relating to each of the remaining contested supports.

    Spa Bath

    In relation to the requested monthly spa bath maintenance the Respondent’s primary submission was that:

    The spa maintenance falls within: ‘pools, pool heating and maintenance, spa baths, saunas, and steam rooms.’ The support is captured as a type of pool maintenance. Further or alternatively, if a spa bath is not a NDIS supports it follows the cost of maintaining it is also not a NDIS support.

    It further submitted that the evidence indicated that Ms. QGRY would only have limited benefit from this and therefore s 34(1)(c) was not satisfied. Further the anticipated cost did not justify this limited benefit.

    Also, there was evidence that there were lower cost alternatives such as an automatic dosing device which had not been explored.

    Further, the Respondent did not accept that Ms. QGRY’s support workers could not perform this task under Ms. QGRY’s supervision, and no evidence had been provided as to inquiries made of Ms. QGRY’s support worker organisations or that there were occupational health and safety (‘OHS’) risks if support workers performed this task.

    Rear Pathway

    The Agency submitted that while it acknowledged that Ms. QGRY could gain some disability related benefits from this support, it did not consider it met section 34(1)(c) (value for money) in that there was a cheaper alternative to Ms. QGRY in using a clothes rack at the rear of her house rather that a clothesline accessible by the pathway. Also, there was limited evidence of the need for Ms. QGRY to access the shed on a weekly basis or whether she may be able to store the items elsewhere or have support workers assist in moving these items.

    High contrast painting architraves and skirting boards

    The Agency raised certain objections to this requested support in these submissions. It asserted that the evidence before the Tribunal was that improving the lighting in the Applicant’s home, combined with the dark gold paint may be sufficient. It referred to Mr McKeown’s evidence in his post hearing letter dated 19 September 2024 to the effect that the combination of black and white together will provide the Applicant the maximum benefit and the Applicant’s condition will deteriorate such that the greater contrast will eventually be required. However the Respondent further noted that there was no evidence as to the rate of that decline, that Ms QGRY may still be living in the property when that took place or the decline may be so rapid as to render the contrast painting ineffective

    Removal of second archway

    The Respondent further submitted the following:

    The removal of the second archway is a standard home renovation captured by item (e) in column 2, item 1 in Table 2. The removal of the second archway is a standard home renovation because it is not being removed to address a specific disability need of the Applicant (such as a need for higher bench tops or a safe location for her stove top). Rather, its purpose is to add more space to the dining room. The evidence indicates the other kitchen modifications would enable the Applicant to live as independently as possible and safely in her home.

    The Respondent submitted that this is not a disability-related cost (r 5.1(b)), but rather related to kitchen design. If the support is disability-related, it does not satisfy s 34(1)(c) as the evidence is clear the Applicant would have sufficient light, bench space, and space to cook efficiently without it from the removal of the first archway and modification of the kitchen. The Respondent referred to the evidence of Mr. McKeown who conceded that there would still be adequate light without the second archway being removed.

    Replacement Flooring

    The Respondent submitted that the requested support did not represent value for money on the grounds of either safety or cleaning as Ms. QGRY could have support workers assist with cleaning the existing carpet.

    Induction cooktop

    The Respondent’s primary submission was as follows:

    An induction cooktop is a household cost as it is a ‘standard appliance’. An induction cooktop is a standard household appliance. While the Applicant has sought an induction cooktop– the NEFF N90 – that has features beneficial for people with vision impairment it
    remains a standard household item. There is no evidence the cooktop is prescribed or designed specifically for persons with vision impairment.

    It further submitted that if the Tribunal were to find that the requested cooktop met s 34(1)(f) it accepted that a cooktop that is operated using tactile and audible controls would also satisfy s 34(1)(c). However, it did not accept that a 90 cm model is necessary as there was no evidence that smaller 70 or 80 cm cooktops had been trialled.

    The Respondent noting the lack of documentary evidence of the cost of the requested cooktop suggested that the Tribunal would be assisted by information from the Applicant specifying the model of the NEFF N90, 90cm cooktop she seeks and the cost relative to the NEFF N90, 80cm model in her submissions in reply.

    Kitchen cabinets

    The Agency conceded that a new pantry should be installed.

    The Respondent maintains that the entirety of the kitchen cabinetry does not need to be replaced to allow the Applicant to cook safely, independently, and efficiently. Rather, the Respondent for reasons outlined below in relation to removal of the first archway contends that remodelling of the return bench would be sufficient.

    If the entire kitchen cabinetry needs to be replaced to provide higher benches, the Respondent accepts this will occasion replacement of the kitchen cabinetry as ancillary works. However, the Respondent does not accept the quotes provided by the Applicant represent value for money.

    Removal of First Archway and remodelling of return bench

    The Respondent stated that s 34(1)(c) was not satisfied as Ms. QGRY has not explored whether to remodel the return bench as an alternative location to install an induction stove top.

    The Respondent maintains that the entirety of the kitchen cabinetry does not need to be replaced to allow the Applicant to cook safely, independently, and efficiently. Rather, the Respondent for reasons outlined below in relation to removal of the first archway contends that remodelling of the return bench would be sufficient.

    High contrast painting of architraves and skirting boards

    The Respondent submitted that the requested support was not reasonable and necessary. In this regard it stated that there was evidence that with improved lighting the existing contrast painting could be sufficient.

    The Respondent acknowledged that the Tribunal could have regard to Mr McKeown’s September 2024 report where he indicated that contrasting black and white paint would provide the maximum benefit and would be required at some point as Ms. QGRY ’s eyesight deteriorated further. However, the Respondent also said that it was not known how rapidly this deterioration would be or if she would still be residing in the property when that occurred. Alternatively, her loss of remaining vision may be so rapid as to render the contrasting paint useless.

    Ms. QGRY in her submission in response raised concerns as to the unfairness caused by the Respondent making concessions during the hearing and then withdrawing those concessions after the hearing. This meant that Ms. QGRY did not have the opportunity to provide evidence on these now recontested supports[44]. The Respondent acknowledged in its final submission the potential unfairness this may cause Ms. QGRY.[45]

    [44] Applicant’s submission

    [45] Respondent’s Final Submission 7 paragraph 36

1. I now return to the Respondent’s argument concerning how to address requested property modification supports that may consist of a combination of standard and disability-specific elements; given the centrality of this argument to this case I will record it below in full:

   The Respondent notes that building works may contain several component parts. Some parts of the project may be ‘standard’ repairs or improvements and therefore a day to day living cost within the meaning of the Transitional Rules. Other parts of the work may be identified as modifications that would be NDIS Supports under Item 22 of Schedule 1. The fact that some features of a building project are not standard, does not render the entire project a NDIS Support. Rather, the Tribunal should identify the components of the work
   that constitute modifications or adaptions (i.e. not standard) and consider those as separate support requests.

   This does not, as the Respondent has previously emphasised, conflict with the principle in McGarrigle v National Disability Insurance Agency [2017] FCA 308; 252 FCR 121. In McGarrigle her Honour Justice Mortimer at [93] held that once a support is ‘identified and described’ it must be fully funded. Following McGarrigle, the Tribunal may in this case separately identify features of the driveway works that are separate support requests. For example, the lighting in the driveway may be a modification for the Applicant’s disability. The cost of that support – separate from the driveway works – may be a NDIS Support.

   The alternative approach, whereby any project that included some features that were modifications and adaptions to address a participant’s impairment was found not to be standard, would defeat the purpose of the Transitional Rules. The result would be that standard home repairs and renovations which would otherwise not be NDIS Supports would be converted to NDIS Supports by minor alterations to design.[56]

   [56] At paragraphs 12 -14

2. As I understand this submission, if a proposed property modification support comprises elements that can be classified as standard and others that come within Item 22 of Schedule 1, it is necessary the Tribunal be provided with evidence which identifies and prices those elements of the proposed works such that are covered by Item 22 in Schedule 1.

3. In this matter I have been assisted by the recent Tribunal decision of Senior Member Shepherd in Dudgeon and National Disability Insurance Agency (Dudgeon).[57]  In that case, further reference was made to the Federal Court decision of Public Trustee of South Australia as Litigation Representative for Isherwood and National Disability insurance Agency (No 2) [2023] FCA 852. (‘Isherwood’)

   [57] [2024] ARTA 154

4. In Dudgeon the Applicant was seeking funding for the modification of an existing home to create a purpose-built area in the home to allow the Applicant to live in a fully modified space specific to the Applicant’s disability needs.[58]

   [58] Ibid para 28 at 164

5. In Dudgeon, the Respondent made similar submissions to those being made here:

   The Respondent considers that it could fund discrete aspects of a scope of works that involved expenditure that was ‘properly related to an Applicant’s disability’ and that:

   ...the Applicant’s family would need to provide a proposal that identified and quantified which costs were attributable to what disability-specific needs as distinct from general home renovations necessary to make a space habitable for any person (such as tiling, waterproofing, insulation, plastering, extending services etc)[59]

   [59]Ibid para 118 at 186

6. In response, Senior Member Shepherd referred to the following excerpt from Isherwood:

   ...the fact that alterations might have the consequence that they will renovate or improve an aspect of a home does not, of itself, mean that the works are not a reasonable and necessary support. ......

   Alterations which serve no purpose as a support for a participant may be characterised as renovations or repairs but that would be because they are not a reasonable and necessary support. However, it is an error to approach proposed supports that take the form of alterations to a home on the basis that if they might be characterised as resulting in some form of improvement or renovation to the home that they cannot be reasonable and necessary supports.

7. Senior Member Shepherd then went on to make the following finding:

   I accept that works such as tiling, waterproofing, insulation, plastering and extending services may be required in modifying or renovating any home. However, I do not consider that the proposed home modification may be characterised as ‘standard renovations and maintenance.

   Based on the evidence of (names removed) and the Applicant’s mother, I accept that the entire proposed home modification is specific to the Applicant’s needs and the Applicant’s care, and so may be characterised as a support as described as ‘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’. I find that the proposed home modification is a NDIS support.[60]

   [60] Ibid at 188

8. I accept that the approach taken by Senior Member Shepherd is the correct one and therefore find that the following property modifications supports are NDIS supports under Item 22 of Schedule 1, that they are specific to Ms. QGRY’s needs and should therefore be funded in full.

9. These are the following items:

   ·The kitchen modifications

   ·Removal of first archway

   ·Removal of the second archway.

   ·High contrast painting of architraves and skirting boards.

   ·Installation of a rear pathway

   ·Spa maintenance.

10. I note that the Agency in its submissions raised additional objections to several of the proposed property modifications on the grounds that they did not represent value for money as required under section 34(1)(c).

11. I do not need to consider this argument as it relates to the spa maintenance as I have already found it is not a NDIS support.

12. I will address these objections under each of the requested supports:

    Kitchen modifications

13. Before addressing this requested support, I consider it appropriate to firstly provide a description of the current layout of the kitchen, the obstacles it creates to Ms. QGRY’s effective use and then provide an outline of the proposed replacement design and layout.

14. The current kitchen is rectangular in shape and has three large widows on three sides at one end of the room.

15. The fridge, stove and current gas cooktop are located at the other end, which due to its location is furthest away from the sources of natural light provided by the kitchen windows.

16. Ms. QGRY provided the following description and its shortfalls:

    My kitchen is now unsafe and difficult for me to work in. My gas stove is in a corner that even for sighted people is challenging. I have been unable to move the stove due to the structural elements of the kitchen. The numerous windows are very important for natural light which helps my vision. As such I do not want to lose them, however, a stove cannot be located under a window. There is nowhere else in the kitchen to move the stove without removing the archway. Yet to leave the stove where it is means that I will only be able to safely use one of the four gas hobs, which in turn means a meal must be cooked in single stages. I cannot put the potatoes on to boil while I cook gravy, cook my meat, and steam my vegetables. To minimise the risk of burns, I must cook each item separately, meaning what should be a quick midweek meal takes me hours, and is no longer a pleasurable task. And even though I exercise the utmost care, I still burn myself or have near misses.

    My kitchen is also very short on accessible storage space. I find the current space very dark and cluttered. As a result, when I try to cook, I struggle to identify ingredients, utensils, bowls, pans, containers, and so on. The benches, although a normal height seem to be too far from my functional vision to safely and accurately see what I am doing, without making a terrible mess while measuring, stirring, cutting, chopping, etc.  Just the thought of how difficult it will be to cook discourages me from cooking at all, causing me to be reliant on others to complete an activity that I previously loved. The times I do cook, I struggle with my lack of vision. I often rely on AIRA, my son, or a support worker to help me locate items and ingredients which are right under my hands but unable to be located due to the clutter. This absorbs time in food preparation and means that I must allocate at least double the time an average person cooking would need for the same meal, just so the meal is served at a decent hour. Relying on others to help me with such simple tasks as finding the right bowl is also disheartening and erodes my confidence.

    When I moved to Queensland between 2009 and 2012, I designed a kitchen with the assistance of an occupational therapist from Vision Australia. That kitchen catered well for my vision deficits. It has an abundance of storage space, smart task lighting over every surface and over each draw and cupboard to ensure adequate light on all tasks.  The Queensland kitchen has contrasting benches and cupboards which assist me in identifying where everything is and helps me focus on what is on the bench tops.  Draws and doors have no handles, allowing easy access to all areas without fumbling for (or bruising myself on) a knob or handle.  It has high benches which bring the working surface closer to my field of functional vision. It has a Neff induction cooktop - the only induction stove I have found with a physical knob to adjust temperature, that also has audible output as you turn it up and down.  During COVID whilst I remained in Queensland, I was again able to utilise this kitchen, and it was simply like going back in time to when I could cook with vision.  All tasks from buttering toast to cooking Christmas lunch (tasks I couldn’t even consider doing in the Blackburn kitchen) were completed without the barriers I have in my current setup. And I loved being able to cook again. This demonstrated for me that a purpose-built kitchen in my own home would enable my autonomy, and reduce my reliance on paid workers; something of utmost importance to me when it comes to family occasions where privacy and pride is important[61]

    [61] Ms QGRY’s Impact Statement JTB:

17. The essential features of the modified kitchen are as follows:

    ·Removal of the first and second archways.

    ·Remove and replace the existing 4-hob gas stovetop and primitive range hood with a 4-zone induction cooktop and a range hood that incorporates task lighting.

    ·Relocate the cooktop & range hood to that 1000mm section of wall squarely between the two largest windows along the longest wall.

    ·Remove and replace the existing kitchen cabinetry.

    ·Installing new kitchen benches with a height of 1030 cm and increased depth along the longest wall close to the windows.

    ·Replace existing cupboards with pull out drawers opening to 180 degrees.

    ·Replacing shelving with carousel type shelves.

    ·Install task lighting and high contrast benchtop and cabinet colouring.

    ·Replace current vinyl and carpet flooring with single high contrast vinyl flooring.

18. As I have previously noted, the basis of the recommended modifications is to ensure Ms. QGRY’s safety and ease of operation in the kitchen taking account of her vision impairment. 

19. The Respondent in its October 2024 submission acknowledged that:

    ·Ms. QGRY requires higher benches to work to bring items within her field of vision.

    ·Widening of the benches with subtly curved edges is of benefit to Ms. QGRY but did not accept they are essential for her to cook safely and independently.

    ·Ms. QGRY requires cupboard drawers that can be drawn out so she can use artificial or natural light to identify the contents of those drawers.

    ·The kitchen cabinetry cannot be retrofitted to meet the Applicant’s needs and that a new pantry should be installed.

20. The Respondent maintained that not all the kitchen cabinetry needs to be replaced to allow the Applicant to cook safely, independently, and efficiently. Rather, the Respondent in relation to removal of the first archway contends that remodelling of the return bench would be sufficient.

21. It asserted that an alternative would be to have a higher and wider bench with provision for some storage where the current return bench is located. It cited the evidence of Ms. Farmer (T 300 (30 – 45)), Mr Stankoski (T 132(10 – 12)), and Mr McKeown (T 193 (20 – 40) that even benches of the same height are preferable for persons with vision impairment. Mr Stankoski said multiple levels would not be entirely safe but could be workable (T 132(35) – 133(16)). The Applicant presently has three levels in her current kitchen (Mr McKeown letter 18 September 2024, p 4).

22. To provide higher benches, the Respondent accepts this will occasion replacement of the kitchen cabinetry as ancillary works. However, the Respondent does not accept the quotes provided by the Applicant represent value for money.

23. The Respondent’s position is there is insufficient evidence for the Tribunal to be satisfied that the Applicant could not use a kitchen with different bench heights and that additional storage could not be added to the remodelled return bench.

24. As I noted in paragraph 278, the Respondent while acknowledging that if all the kitchen cabinetry needed to be replaced to install higher benches, this would require the replacement of the existing kitchen cabinetry, however it did not accept that the quotes provided by the Applicant represent value for money.

25. It noted that the current quotes are based on kitchen doors that open to 180 degrees. While it accepted that such doors would be of benefit to Ms. QGRY, it also noted that Mr Stankoski’s evidence was that he knew many vision-impaired people who could successfully manage with kitchen doors that open to 90 degrees (T, 125). Similarly, the self-closing feature of the recommended cupboard doors was not reasonable or necessary as Ms. QGRY could close these doors herself.

26. In my observation, much of the dispute as to the extent of the proposed kitchen modifications comes down to the potential location of the stovetop. I consider my decision in this regard will depend upon which of the competing proposals is preferable and meets the section 34(1)(c) requirement of representing value for money.

27. I admit that I am at somewhat of a loss as to the basis behind the Respondent’s suggested alternatives, other than on the issue of relative cost. I note that it on the second day of the hearing advised the Tribunal that it would no longer rely on its expert witness, Ms. Houston’s reports and they did not call her to give oral evidence.

28. For the sake of completeness, I accept that the evidence establishes that:

    ·Ms. QGRY’s proposed kitchen modifications are preferable to the Respondent’s suggested use of the current return bench.

    ·That it is essential that the benches be at the same height and level for Ms. QGRY’s safety and ease of operation.

    ·The preferable option is the installation of kitchen cabinet doors that open to 180 degrees and are self-closing.

29. I also note that Ms. QGRY has submitted a revised cost estimate as part of the additional evidence she provided on 28 January 2025. Some of these revised costings relate to various aspects of the proposed kitchen modifications and I base my assessment of value on these revised figures.

30. Ultimately, I have decided that Ms QGRY’s proposals for kitchen modifications comply with section 34(1)(c) and therefore are reasonable and necessary. This requested support is therefore approved.

    Removal of first archway

31. In its October 2024 submission, the Respondent contended that the first archway did not satisfy section 34(1)(c).

32. It appears to have based that contention on the evidence of Mr Stankowski where he appeared to indicate that artificial light was preferable to natural light. While not expressly indicated in its submissions, it appears that the Agency is asserting that as it has agreed to fund artificial lighting in the kitchen area this is sufficient to address Ms. QGRY’s level of vision impairment.

33. I do not agree with that assessment. Ms. QGRY’s evidence addressed in detail the difficulties she faces in effectively uses the existing kitchen. Part of this is the shadowing effect of the first archway which I do not consider artificial lighting will completely address.

34. I also note that the basis for the request is not just related to increasing natural light in the kitchen but also to create space for the installation of the requested cooktop.

35. In any event, the removal of the first archway is a central component of the overall proposed kitchen modification which I have already found is reasonable and necessary.

    Removal of second archway

36. The basis for Ms. QGRY’s request for the removal of the second archway is to allow more light primarily into the dining area with the additional benefit of more light into the kitchen area.

37. Ms. QGRY’s evidence and subsequent submissions identified the benefits as being enhancing her ability to see food on her plate, identify cutlery, condiments, or glassware, diminish breakages and maintain visual orientation while seated at the dining table.[62]

    [62] Applicant’s Reply 13

38. The Respondent submitted that Mr McKeown in his evidence had agreed with the proposition that the removal of the second archway was not necessary as the other suggested modifications would result in Ms. QGRY being able to be safe, independent and efficient in the kitchen.[63]

    [63] Respondent’s October submission para 59

39. It also noted that Ms. QGRY had also conceded that the removal of the second archway was not critical.

40. I am not convinced that these concessions properly address the primary basis of Ms. QGRY’s request for the removal of this archway, which was to allow greater natural light into the dining area and allow her to better function in this living space. The basis for the Respondent’s argument is that the removal of the second archway would provide little additional benefit in the kitchen area.

41. I also note that the amount quoted for its removal ($1,650 + GST) is quite modest.

42. I therefore consider that this requested support complies with section 34(1)(c).

43. I will therefore approve this requested support.

    High contrast painting

44. Ms QGRY asserts that having the contrast painting scheme in her home will serve to:

    ·Improve the visibility of doorways, thresholds and transitions between surfaces.

    ·Reduce the risk of injury from collisions or misjudging spatial boundaries.

    ·Enhance her independent and safe navigation through her own home.

45. The Respondent for its part submits that:

    ·There is evidence that improving the lighting in the Applicant’s home, combined with the dark gold paint may be sufficient.

    ·The Applicant’s evidence is she does not have contrast painting throughout her Gold Coast home but is able to navigate due to the superior artificial light.

    ·Mr Stankoski stated that improved lighting would ‘mitigate the need for contrast between the – on the architrave.’ (T 141 (35 – 47). Mr Stankoski considered the dark gold paint could be appropriate with proper lighting (T 134 (8 – 13)). Mr McKeown also agreed that it was possible this could be sufficient.

    ·The Tribunal may have regard to Mr McKeown’s evidence in his post hearing letter dated 19 September 2024 that black and white together will provide the Applicant the maximum benefit and the Applicant’s condition will deteriorate such that the greater contrast will eventually be required.

    ·However, there is no evidence as to how rapidly the Applicant’s vision will decline. It is unknown if she will be in this property when that decline occurs. The decline could be so rapid that using black paint for contrast makes no difference. On the present evidence, the additional lighting is sufficient.

1. My assessment of the evidence is that the respective experts were somewhat at odds as to what would best address Ms. QGRY’s current and future needs arising out of her current and future level of vision impairment. They also appear somewhat equivocal in their opinions.

2. In addition, there is a degree of inherent uncertainty as to the rate and speed of the deterioration in Ms. QGRY’s vision.

3. Overall, I consider that having a combination of the requested additional lighting as well as the proposed contrast painting would be the optimal solution.

4. I therefore consider that this requested support complies with section 34(1)(c).

5. I will therefore approve this requested support.

   Rear pathway

6. Ms QGRY contends that she needs to have a concrete pathway installed so she can safely access the clothesline in her backyard as well as the storage shed which she accesses on a regular basis.

7. She currently is unable to do this as the ground is uneven in the yard and she is at risk of falls.

8. She is therefore reliant on others in carrying items such as a clothesbasket or items to and from the shed.

9. The Agency conceded that having a back concrete path was likely to benefit Ms. QGRY in and that it was disability related. It provides her the freedom to access the shed at a time of her choosing. The Respondent further acknowledged the benefit to her as she could make choices as to which seasonal items (e.g. Christmas decorations) she wishes to bring inside for decoration.

10. The Respondent however did not accept that she needs to access the shed on a weekly basis and that these benefits were not sufficient to satisfy section 34(1)(c).

11. I have already made findings that the back path is a NDIS support as it comes within Item 22 of Schedule 1 of the Transitional Rules.

12. The Respondent’s position is that the construction of a rear pathway is not required as it was not necessary as Ms. QGRY can already mobilise in her own backyard albeit without carrying any items, and that having a clothes rack for drying clothes at the rear of the house and Ms. QGRY utilising her support works to remove or return items from her backyard shed would be a lower cost alternative.

13. In her reply, Ms. QGRY made the following observations:

    ·The requested support is not for her convenience and was recommended to address the identified safety risks arising out of her navigating the backyard with its uneven terrain.

    ·The suggested alternatives present their own risks and are only short-term in nature and potential benefit. The proposals also ignore the benefits of the proposed support to her autonomy and well-being. Nor should she be placed in a position of risking her safety by navigating this uneven ground or become reliant upon her support workers to access her shed.

14. I do not consider the alternative proposals made by the Respondent are realistic and if followed, will ensure Ms. QGRY’s reliance upon her support workers and others. I am satisfied that the construction of a rear yard pathway will ensure her safety and increase her independence.

15. I therefore consider that this requested support complies with section 34(1)(c).

16. I will therefore approve this requested support.

    CONCLUSION

17. The Tribunal is satisfied that all the seven requirements in ss 34(1)(aa)-(f) have been met with respect to the following requested supports:

    a.Kitchen modifications as proposed by the Scope of Work for Kitchen Modifications (AH 804).

    b.removal of archways 1 and 2 in kitchen dining room areas.

    c.removal of existing carpet in kitchen/dining area and replacement with vinyl flooring.

    d.high contrast painting of the architraves and skirting boards in the Participant’s home.

    e.replacement of existing downlights in kitchen area with 7 LED lights.

    f.purchase and installation of a NEFF N 90 induction cooktop.

    g.replacement of the Participant’s existing driveway.

    h.construction of a concrete pathway in the Participant’s backyard.

    DECISION

18. The Tribunal sets aside the decision under review. The Tribunal remits this matter to the Respondent for reconsideration with a direction stating that the following supports are to be approved in the Applicant’s NDIS plan:

    i.Kitchen modifications as proposed by the Scope of Work for Kitchen Modifications (AH 804).

    j.removal of archways 1 and 2 in kitchen dining room areas.

    k.removal of existing carpet in kitchen/dining area and replace with vinyl flooring.

    l.high contrast painting of the architraves and skirting boards in the Participant’s home.

    m.replacement of existing downlights in kitchen area with 7 LED lights.

    n.purchase and installation of a NEFF N 90 induction cooktop.

    o.replacement of the Participant’s existing driveway.

    p.construction of a concrete pathway in the Participant’s backyard.

Dates of hearing:	4-6 September, 26 September, and 3 October 2024
Date final submissions received:	14 April 2025
Applicant:	Self-represented
Counsel for the Respondent:	Mr Matthew Kenneally
Solicitors for the Respondent:	Maddocks Lawyers