Roberts and National Disability Insurance Agency (NDIS) - [2025] ARTA 1362

Roberts and National Disability Insurance Agency (NDIS) [2025] ARTA 1362 (11 April 2025)
Applicant:Linda Roberts
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/3718

Tribunal:General Member A. Williams
Place:Hobart
Date:11 April 2025

Decision:The Tribunal sets aside the decision under review pursuant to paragraph 105(a) of the Administrative Review Tribunal Act 2024 (Cth).

...................[SGD]................................
General Member A. Williams

Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – review of statement of participant supports – request for funding of a Thera Trainer – assistive technology – 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 – applicant sought review of statement of supports to allow for funding for a Thera Trainer – decision under review varied
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) (NDIS Supports) Act 2024
National Disability Insurance Scheme (Supports for Participants) Rules 2013
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024
Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
FSWN and National Disability Insurance Agency [2025] ARTA 114
G v Minister for Home Affairs [2019] FCAFC 79 [18]
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Madelaine and National Disability Insurance Agency [2019] AATA 4025
National Disability Insurance Agency v WRMF (2020) FCR 415
VPYC and the CEO, National Disability Insurance Agency
Secondary Materials
National Disability Insurance Scheme Operational Guideline
NDIS Assistive Technology Operational Guidelines
Statement of Reasons
Introduction

This application is about whether the Applicant, Ms Linda Roberts, can have her request for funding of the cost of a Thera Trainer Tigo (Thera Trainer) by the National Disability Insurance Agency (the Agency) approved as part of her funded supports. Ms Roberts seeks review of a decision made on 4 March 2023 by a “reviewer” under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) (‘decision under review’).[1] This decision confirmed an earlier decision by the Agency on 3 February 2023 not to approve such funding as part of her funded supports.
[1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘TD’).
I note that in addition to the requested funding for the Thera Trainer, Ms Roberts was also seeking approval by the Agency of the following additional supports:
·Vinyl plank flooring.
·Replacement carpet tiles.
By way of explanation, the Thera Trainer was developed for people with stroke, spinal cord injury, multiple sclerosis, morbus Parkinson, brain injuries, etc. By now the exercising device is successfully used by patients after joint replacement or other orthopaedic disease.[2]
[2] Thera Trainer Tigo 530 Fact Sheet Joint Tender Bundle (JTB)
I note that the Agency subsequently accepted that Ms Roberts’ request for replacement flooring in her home referred to in paragraph 2 met the reasonable and necessary criteria in the NDIS Act. The parties provided the Tribunal with written terms of agreement varying Ms Roberts’ plan under s 42D of the NDIS Act to include the requested supports, and on 8 September 2023, the Tribunal issued a consent order to that effect.
Therefore, the requested support remaining in dispute is the Thera Trainer.
The Administrative Review Tribunal’s (‘Tribunal’) jurisdiction arises under section 12 of the Administrative Review Tribunal Act 2004 (Cth) (‘ART Act’), operating in conjunction with section 103 of the NDIS Act.
For the reasons set out below, the decision under review is set aside as the Tribunal is satisfied that Ms Roberts has established that the requested support meets the reasonable and necessary criteria under subsection 34(1) of the NDIS Act.
Background
Ms Roberts is a 62-year-old woman who lives in Tasmania. She lives in her own property with her adult daughter.
Ms Roberts was previously approved to be a participant in the National Disability Insurance Scheme (‘the NDIS’).
Ms Roberts has been diagnosed with severe polyarticular rheumatoid arthritis and this condition formed the basis for her approval for access to the NDIS.
In addition, Ms Roberts has the following additional conditions:
·severe bilateral shoulder cuff arthropathy.
·right total femur replacement.
·left complex total knee replacement.
·revision left hip replacement.
·severe osteoporosis.
·intra-prosthesis stress fracture of left femur.
·severe right mid-foot osteoarthritis.
·severe bilateral elbow rheumatoid arthritis.
Arising out of these multiple conditions, Ms Roberts has severely restricted mobility and requires assistance in the form of crutches, a walking frame and a motorised wheelchair.
Ms Roberts experiences a range of symptoms as follows:
·Significant pain in her back and shoulders.[3]
·Constant fatigue.[4]
·Reduction in mobility.[5]
·Reduced movement in her arms.
·Reduced grip strength.
·Requires mobility assistance aids such as crutches and an electric wheelchair.
·Requires assistance with personal care.
[3] Ms Roberts’ statement JTB 75-86
[4] Ibid
[5] IbId
Ms Roberts’ current plan is a 1-year plan with funding provided between 22 September 2024 and 22 September 2025.
Her current NDIS supports are as follows:
Core Supports
Assistance with Daily Living
·Assistance with Social, Economic and Community Participation: $31,618.08.
·Assistance with daily living: $41,863.56.
·Consumables: $3,381.12.
·Transport: $12.00.
Capacity Building Supports
·Improved daily living: $23,024.86.
·Health and Wellbeing: $2,596.80.
·Support coordination: $2,403.36.
Capital Supports
·Repairs and Maintenance (mid-cost assistive technology) $2,900.04.
Recurring supports
·Recurring transport: $1,784.
Decision under review and application for review to this Tribunal
The Respondent provided an approved statement of supports for Ms Roberts on 3 February 2023 after assessing Ms Roberts’ request for funding for the Thera Trainer and the replacement flooring. It advised that Ms Roberts’ request for the funding of the Thera Trainer did not meet the reasonable and necessary criteria under section 34 of the Act and Rule 5 of the National Disability Insurance Scheme (Supports for Participants) Rules (the Rules) (the initial decision).
On 20 March 2023 Ms Roberts requested that the Agency conduct an internal review of the initial decision.
The Agency conducted its internal review and on 4 May 2023 advised that it had confirmed the initial decision’s finding that Ms Roberts’ request for the Thera Trainer could not be approved (the reviewable decision).
The reasons given in the reviewable decision for refusing the request for were as follows:
·The requested support did not represent value of money as required under subsection 34(1)(c) of the Act. The decision maker noted that Ms Roberts had not provided evidence which identified a comparable support which could achieve the same outcome at a substantially lower cost.
·Ms Roberts had not established that the requested support would be beneficial and effective having regard to good practice and evidence under subsection 34(1)(d) of the Act.
On 26 May 2023 Ms Roberts applied to the then Administrative Appeals Tribunal (AAT) for the AAT to conduct an independent review of the reviewable decision.
In her application for review, Ms Roberts noted the following as reasons why she considered the reviewable decision was wrong:
My Occupational Therapist will write another supporting document for this case but is unable to complete the report until one week to two weeks after June 1st, 2023, due to her workload.
I do not think the Ndis representative understood the complexity on my disease that was outlined in the Physiotherapist and Occupational Therapist reports in the decision that was made.
I think it is reasonable to expect twenty plus years of life left in me that I could utilise the Thera Trainer Tigo for to improve/maintain my level of ability and wellbeing that would benefit me. What evidence supports the Ndis claim that the item is not value for money? If I can maintain my mobility for as long as I can this will decrease funded support that I may need otherwise.
The Oxford Dictionary defines Rheumatoid Arthritis as: a chronic progressive disease, causing inflammation in the joints and resulting in painful deformity and immobility, especially in the fingers, wrists, feet, and ankles.
In my case this has included both knees and hips, which has led to fourteen joint replacements to both my hips and knees, a right femur replacement, plus a left ankle fusion. These have been complex surgeries with multiply revisions. Both my shoulders need replacing but my surgeon has asked to leave it as long as possible as shoulder replacements are not designed to put the weight through them that I do. The reverse shoulder replacement that I would require can only be done once. My right ankle has fused permanently as a result of my RA. Both my elbows are ravaged by this disease. My spine and neck also.
I use a forearm walking frame in my home, crutches outside my home for very limited distance and push and electric wheelchair outside my home. My electric wheelchair in my home is essential for my bad days. I push myself to use my walking frame inside my home and my crutches outside for short distances to keep my legs as strong as I can so I can stay using my legs as long as possible. My arms do not have the ability to move myself from a wheelchair to bed, toilet etc.
My Occupational Therapist, Julie Grierson supports this Assisted Technology equipment in her report. Julie mentions a three-month trial and then asking the Ndis to purchase this item for continuing ongoing use.
In my Physiotherapist’s report he recommends using the Thera Trainer Tigo three times a day. I feel the Thera Trainer Tigo will help maintain and improve my situation so further decline is limited. With a progressive disease not only does it affect you physically, it also affects your mental health. Living with chronic pain, ongoing fatigue, functional decline, and not being able to do things that most people take for granted is challenging.
The Thera Trainer Tigo is priced at $11,759.00. My physiotherapist has told me if I went three times a week to a practice that had a Motomed (which is what a Thera Trainer Tigo is) the cost would be $224/week (3x20min sessions) which would cost, over the year, $11,648. I would need a support worker for two hours at $64.04 per hour, three times a week @$384.24 over a year $19,980.48. Going three times a week could cost almost thirty thousand dollars a year.
Ongoing.
I have attached a document of the Thera Trainer Tigo explaining what this equipment does for an individual.
I have called around Hobart and located a Motomed at AllCare Physiotherapy in Sandy Bay. I would need an initial consultation for an assessment as I have not been to this practise before plus on going additional visits. I have called the Ndis on the 1800 number and been told I do not have funding in my existing plan for this. Using a support worker to take me three times a week could cost $8000.00 more a year than the actual cost of the Thera Trainer Tigo that I could use in my home independently.
My Occupational Therapist, Physiotherapist, and The Rehabilitation Centre (in the process of being rebranded to a new business name - Muve Tech) do not know of a cheaper substitute or comparable piece of equipment to replace this item.
I purchased a peddle trainer with my own money but struggled to use it with difficulties in the rotations and putting and keeping my right leg on the peddle. The Thera Trainer Tigo has a secure foot pedal to keep my foot secure for rotations. I cannot use an exercise bike as I cannot get on it.
I apologize if there was insufficient information in my own report about my disease but felt the Ndis already had this information and some of it was covered in the Physiotherapist and Occupational Therapist reports. I have tried to explain in simple terms about how my Rheumatoid Arthritis has affected me.
I believe the Thera Trainer Tigo meets both criteria, value for money, and will be effective and beneficial and lead to reducing costs to the NDIS.
Evidence and submissions
As part of the review process, the Tribunal was provided by the Agency with those documents previously submitted and created as part of the original application process (‘the T Documents’). Of potential relevance to this decision are the following reports and other documents:
·Letters from Mr Lachlan Marwood (musculoskeletal physiotherapist) dated 6 September 2022[6] and 21 February 2023.[7]
·Reports of Ms Julie Grierson (occupational therapist) dated 23 November 2022,[8] and 14 April 2023 (Assistive Technology Report).[9]
·Home Modification Assessment Report from Ms Grierson dated 18 June 2023.[10]
·Quote from the Rehabilitation Centre dated 14 April 2023.[11]
[6] JTB 15
[7] JTB 17
[8] JTB 47
[9] JTB 50
[10] JTB 57
[11] JTB 14
Ms Roberts’ Evidence
After filing her application with the Tribunal, Ms Roberts has provided the following medical reports and assessments and other documents in support:
·Article ‘Improved walking ability and reduced therapeutic stress with electro‑mechanical gait device’ J rehab il medicine S Freivogel et al.
·Email with attachments from Ms Grierson dated 26 June 2023.
·Letter from Lachlan Marwood (physiotherapist) dated 27 June 2023.
·Report of Ms Isabella Man (physiotherapist) dated 30 June 2023.
·Several brochures from the manufacturer outlining the benefits of the Trainer.
·Letter of 30 October 2023 from Dr Helen Cooley (rheumatologist).
·Further Letter from Lachlan Marwood (physiotherapist) dated 6 December 2023 and responding to questions posed by the Respondent’s Statement of Issues dated 21 November 2023.
·Letter of 19 December 2023 from Dr Adam Watson, orthopaedic surgeon.
·Supplementary report from Mr Marwood dated 14 June 2024.
·Email from Ms Grierson responding to Professor Boland’s report (see paragraph 35).
·Further updated report from Lachlan Marwood (physiotherapist) dated 21 August 2024 and plan review report dated 24 July 2024.
·Plan review report and Assistive Technology review report of Julie Grierson (OT) dated 12 August 2024.
·Applicant’s email dated 12 February 2025 attaching CT and X-ray scans.
During the conduct of the Tribunal’s pre-hearing procedure, both parties filed with the Tribunal Statements of Facts, Issues and Contentions (SFIC).
The most recent of these will be referred to throughout this decision.
Ms Roberts’ Statement of Lived Experience
Also filed on Ms Roberts’ behalf was her Statement of Lived Experience (SoLE) dated 27 June 2024.
Ms Roberts’ statement addressed the following:
·The background of her disability.
·Her daily routine and activities of daily living.
·The impact of her rheumatoid arthritis on her.
Ms Roberts’ statement also addressed the reasons why she was seeking funding for the Thera Trainer:
When I have used the Thera trainer, I have felt good during and after using it. I trialled the Thera trainer at AllCare Physiotherapist using my arms and legs. This was noted in Isabelle Man’s report.
My goals in using the Trainer, which I believe are achievable based on information I have been provided by my specialists, are:
• I would like to continue to improve my overall health and wellbeing. I want to enjoy all aspects of my life.
• Maintain and possibly improve function.
• Gain muscle strength without over straining.
• Help improve my mental health. I could use the Trainer even on bad days. I did this when I was a patient at St John’s hospital.
• Build up strength in my weaker side.
• Gain increased range in my arms, and strength, to help achieve what I cannot do now.
• I want to improve on what I have.
• Living with chronic pain, ongoing fatigue, functional decline, and poor stamina is challenging. I would like to build stamina so I will be able to do more.
• If I have a trainer in my home, I will be able to utilise it far more frequently than if I have to travel to access one.
• Prevent or delay decline
• Decrease likelihood of increased reliance on NDIS funded supports in the future.
My physiotherapist has recommend using the equipment three times a day with a gradual buildup of times. Travelling multiple times a week to use a Thera trainer would thoroughly exhaust me and take a huge chunk of my free time. It could take a minimum of 2½ each trip to a physiotherapist that has a Thera trainer. 63. I would have to gradually build up my time of use on the trainer as I cannot just go for 20 minutes straight off. I cannot achieve this if I cannot use it multiple times a day.
I cannot go to a gym and use their equipment as I cannot get on that type of equipment and could hurt myself.
Looking after my physical and emotional wellbeing leads me to be more able bodied, with a greater functional capacity, which will enable me to be more active in social engagements.
The trainer will help with my pain management which should lead to being able to do things more comfortably.
I have two Physiotherapists that support this piece of equipment, plus my Occupational Therapist. I have trialled a Thera trainer under the supervision of one of these physiotherapists using legs and arms who confirms I have used this piece of equipment appropriately.
By having this equipment in my home and using it multiple times a day I will gain far more than using this piece of equipment at a physiotherapist once, twice, or more times a week at a physiotherapist’s consulting rooms.
Travelling continually to a location to use a Thera trainer would be exhausting and take time away from things I like to do.
I have to start off with a small amount of time regularly and build up my times, like my physio has stated in his reports. Three times a day.
I cannot go to a gym and try to use everyday equipment that a person who does not have a disability like my disability, with my level of Rheumatoid Arthritis damage. I do not have the physical ability to use these pieces of equipment.
Evidence submitted for the Agency
The Agency provided a report prepared by Associate Professor (AP) Rob Boland (Specialist Musculoskeletal Physiotherapist) dated 20 May 2024 with AP Boland providing a supplementary report dated September 2024. AP Boland was appointed by the Agency as an Independent Medical Expert (IME) and was provided with a series of questions including his professional opinion on the requested support.[12]
[12] JTB 198-200.
Ms Roberts’ position
The pre-hearing procedure of the Tribunal is for both an Applicant and Respondent to provide the Tribunal and each other with a Statement of Facts, Issues and Contentions (SFIC).
The purpose of an SFIC is to provide an outline of that party’s case, what they consider to be the relevant facts, what may be the relevant parts of the Act and related Rules the Tribunal should consider and to identify where the parties disagree on these points.
These are updated on a regular basis to take account of new evidence and other material provided by the parties.
I note that on 3 October 2024, the Act was amended, and a new set of Rules came into effect, namely the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024. These Transitional Rules made significant changes to section 34 of the Act and provided guidance as to what supports could be approved by the Agency and those that were deemed generally not to be NDIS supports.

The second SFIC was prepared in accordance with a Direction I made on 17 October 2024 as follows:
·On or before 15 November 2024, the Respondent must lodge with the Tribunal, and give to the Applicant, an updated submission about the support funding issue arising in this proceeding, in light of the recent changes to the relevant laws under the NDIS Act.
·On or before 29 November 2024, the Applicant may lodge with the Tribunal, and give to the Respondent, their response to the updated submissions lodged by the Respondent.
In terms of Ms Roberts’ position I will focus on her most recent statements and replies in response to the Agency’s SFIC.
The first SFIC is dated 27 August 2024, with an updated statement addressing the recent amendments to the Act being filed on 31 December 2024.
The August SFIC contends as follows:
·Funding for the Thera Trainer will assist Ms Roberts to pursue her goals, objectives and aspirations.
·Funding of the Trainer will assist Ms Roberts to undertake activities including social and economic participation.
·The requested support represents value for money in that the cost of the support is reasonable, relative to the benefits achieved and the cost of alternative supports.
·The requested support will be, or is likely to be, effective and beneficial having regards to good practice.
·The requested support takes account of what is reasonable to expect families, carers, informal networks and the community to provide.
·The requested support is most appropriately through the NDIS.
·The requested support meets the NDIS Assistive Technology Operational Guidelines.
The December submission was provided in response to the Agency’s own submission dated 14 November 2024 and was focused on the recent amendments to the Act.
The submission stated that the requested Thera Trainer did not fall within any of the various categories specified in Schedule 2 to the new Rules.
With regard to the Agency’s submission that the Thera Trainer could be considered a day‑to‑day expense (item 4(g) – standard recreational equipment and tools, and item 4(q) – general health, fitness, social or recreational activity), the Applicant asserted the Thera Trainer is not a day-to-day expense.
Further the Thera Trainer should not be considered as a piece of ‘standard recreational equipment’, as the Thera Trainer is a piece of modified or adapted equipment that is specifically designed for individuals with physical impairments.
The Applicant stated in regard to item 4(q) that the Thera Trainer was not ‘general’ in nature as it is specialised equipment used to address functional impairments such as those Ms Roberts has.
It is not a day-to-day expense as it is a one-off expense for a piece of specialised disability specific equipment.
The Applicant submitted that if the Tribunal determines that the Thera Trainer is not excluded by Schedule 2, it should follow the approach taken in the Tribunal decision of VPYC and the CEO, National Disability Insurance Agency (VPYC).[13]
[13] [2025] ARTA 3 JTB 374
The Agency’s position
Over the months following Ms Roberts lodging her application with the Tribunal, the Agency also filed several SFICs. It is not necessary to refer to each of these documents, rather I will consider the two most recent statements as these reflected the Agency’s position immediately prior to the hearing.
The Respondent’s final position is outlined in two documents. The first SFIC is dated 17 September 2024, with an updated statement being dated 14 November 2024.
The second SFIC was filed in response to my October Direction as recorded in paragraph 46 above:
·their response to the updated submissions lodged by the Respondent.
Immediately prior to the hearing on 21 February 2025, the Respondent provided a final submission prepared after receiving the Applicant’s reply to its November submission.
I will now outline what is contained in the Agency’s two SFICs to properly capture the Agency’s final position.
In its September submission, the Respondent, after making extensive reference to the available evidence, stated that the requested support should not be approved on the following grounds:
·It does not represent value for money as required by subsection 34(1)(c). In this regard it asserted that the alleged benefits of the Trainer were speculative as it is not in regular use and no information provided as to it representing value for money. Further there is insufficient evidence which establishes that it will substantially improve Ms Roberts’ life stage outcomes for her long-term benefit (Rule 3.1(b)) or reduce the cost of other funded supports in the long term (Rule 3.1(c)) or increase her independence or reduce the need for other supports (Rule 3.1(f)).
·It is not effective and beneficial as required by subsection 34(1)(d). In this regard, the Respondent referred again to paragraphs 35 to 38 of its submission. The applicant’s evidence in the Respondent’s submission did not establish the benefits specifically for Ms Roberts and did not establish that it was current good practice. Also in its submission, the evidence supporting the use of the Trainer was based on the assumption that her condition may not deteriorate, and if her condition did deteriorate, she may then be no longer able to use the Trainer.
·The Trainer is not appropriately funded through the NDIS as it is predominately related to her health and improving her level of function.
·The Agency submitted that this position was informed by Rules 3.5 to 3.7, 5.1 and 7.5 as well as the NDIS Assistive Technology Operational Guidelines. In this regard the Agency will not be responsible for:
oHealth (excluding mental health) (Rule 3.6(a)).
oA participant’s disability (Rule 5.1(b)).
oOther activities that aim to improve the health status of Australians … (Rule 7.5(b)).
oTime-limited, goal-oriented services and therapies where the predominant purpose is treatment directly related to the person’s health status (Rule 7.5(c)(i)).
oServices provided after a recent medical or surgical event, with the aim of improving the person’s functional status including rehabilitation or post-acute care (Rule 7.5(c)(i)).
In its November submissions, the Respondent referred to the amendments made to subsection 34(1) of the Act as well as the provisions of the National Disability Insurance Scheme (getting the NDIS Back on Track No 1) (NDIS Supports) Transitional Rules 2024 (the Transitional Rules).
In summary, the Respondent submitted that the requested Trainer is not an NDIS support as it is not listed as such in Schedule 1 to the Transitional Rules.
It further submitted that the Trainer is a ‘general health tool’ and could be considered ‘standard recreational equipment and tools’ or general health, fitness, social or recreational activity costs or service’.
In its final submission dated 21 February 2025, the Respondent revised its position as it related to subsection34(1)(f) in that:
·Its position was that the requested support does not come within any of the supports listed in Schedule 2.
·The Applicant has not identified any category in Schedule 1 to the Transitional Rules that the Trainer falls under. The Respondent for its part submits that the Trainer does not fall within any of the Schedule 1 categories.
·It stated that it is open for the Tribunal to consider whether the Trainer falls within item 7 of Schedule 1 (assistive equipment for recreation) or item 34 of Schedule 1 (therapeutic supports) however submitted reasons why the Trainer does not fall within these categories. These included that the Thera Trainer is a therapeutic device and was not associated with a leisure pursuit for enjoyment and recreation.
·It further stated that it was open to consider the Thera Trainer came with item 34 of Schedule 1, namely ‘Therapeutic Supports’. The Agency stated that the proper construction of this item was that it relates to person-to-person supports not assistive technology.
·Even if the Tribunal were to find that the Trainer is a NDIS support, it is still required to be satisfied that it is most appropriately funded through the NDIS.
Having outlined the parties’ respective positions, I shall now refer to the relevant legislation and related documents.
LEGISLATIVE FRAMEWORK
The NDIS has been in operation for over 10 years. It was, at the time of its passing, a 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.[14] 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.
[14] National Disability Insurance Scheme Act 2013 (Cth), subsection 4(1).
The NDIS is administered by the Agency 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.
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.
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).
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”.
The Rules made pursuant to subsection 35(1) of the NDIS Act provide 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.
Effective and beneficial and current good practice
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Respondent has learnt through delivery of the NDIS.
3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary, seek, expert opinion.
Supports appropriately funded or provided through the NDIS
3.5 Schedule 1 sets out matters for the CEO to have regard to in considering whether supports are most appropriately funded or provided through the NDIS, rather than through other service systems (service systems is defined in paragraph 6.4).
3.6 The matters to have regard to are set out under the following headings in the Schedule:
(a) Health (excluding mental health);
(b) Mental health;
(c) Child protection and family support;
(d) Early childhood development;
(e) School education;
(f) Higher education and vocational education and training;
(g) Employment;
(h) Housing and community infrastructure;
(i) Transport;
(j) Justice.
3.7 Where particular supports are set out in the Schedule as being appropriately funded or provided through the NDIS, the CEO must still be satisfied of a number of other matters in order for the supports to be funded or provided (see paragraphs 2.3(a)-(e) of these Rules and paragraphs 34(a)-(e) of the Act).
Part 5 of the Supports Rules sets out the general criteria for supports and supports that will not be funded or provided:
General criteria for supports.
5.1 A support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
(b)it is not related to the participant’s disability; or
(c)it duplicates other supports delivered under alternative funding through the NDIS; or
(d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a)additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b)costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
Supports that will not be funded or provided.
5.3 The following supports will not be provided or funded under the NDIS:
(a)a support the provision of which would be contrary to:
(i). a law of the Commonwealth; or
(ii). a law of the State or Territory in which the support would be provided.
(b)a support that consists of income replacement.

Rule 7 of the Rules contains the following relevant provisions:
7.1The Act limits the supports that can be provided or funded under the NDIS to supports that are not more appropriately funded or provided through other service systems, for example as part of a universal services obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
7.2The considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by the NDIS or another service system.
7.3For the avoidance of doubt, while this Schedule sets out considerations relevant to whether a support should be considered to be more appropriately provided or funded through another service system, it does not purport to impose any obligations on another service system to fund or provide particular supports.
7.4The NDIS will be responsible for supports related to a person’s ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment.
7.5The NDIS will not be responsible for:
(a)the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions; or
(b)other activities that aim to improve the health status of Australians, including general practitioner services, medical specialist services, dental care, nursing, allied health services (including acute and post-acute services), preventive health, care in public and private hospitals and pharmaceuticals or other universal entitlements; or
(c)funding time-limited, goal-oriented services and therapies:
(i) where the predominant purpose is treatment directly related to the person’s health status; or
(ii) provided after a recent medical or surgical event, with the aim of improving the person’s functional status, including rehabilitation or post-acute care; or
(d)palliative care.
The NDIS Assistive Technology Operational Guidelines
The Agency’s guidelines specify assistive technology into three categories, namely low, mid and high cost with each category identified by the cost of the requested item.
The mid-cost technology’s price range is between $1,501 and $15,000. The Thera Trainer falls into this category.
I have extracted the relevant paragraphs of the Guidelines below:
You’ll need to give us evidence that your mid cost assistive technology is right for you.
The evidence can be a letter, email or report from your assistive technology advisor.
Your advisor must tell us:
- the assistive technology you need
- why the assistive technology is the best value, over other supports, to help with your disability support needs
- how the assistive technology will help with your disability support needs and help you pursue the goals in your plan
- an estimate of how much the assistive technology costs.
The evidence you give us doesn’t need to be a formal assessment but it does need to be in writing so we can keep it for our records.
You might also have other evidence about how assistive technology will help you.
You don’t have to provide this evidence but it might help us understand your needs better and make it quicker to get the assistive technology in your plan.
You might tell us:
- about your lived experience
- if you’ve used or tested the item or similar item before and it meets your needs
- about advice from peer support groups or peak bodies that indicate the item is right for you
- you don’t already have something or someone doing the same or similar job, unless you are replacing it because it’s failing or no longer suitable.
Recent amendments to the Act
As of 3 October 2024, the Act was amended under the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act (Amending Act) (the Transitional Rules).
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).
It is important to note that both the Amending Act and the Transitional Rules came into effect immediately and apply as of 3 October 2024.
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.
As a result of the Amending Act, the definition of what constitutes an NDIS support in section 10 has changed with the new section reading as follows:
Definition of NDIS support
(1)       Subject to subsections (4) and (9), a support is an NDIS support for a person who is a participant or prospective participant if the support is declared by National Disability Insurance Scheme rules made for the purposes of this subsection to be an NDIS support for:       (a)       participants or prospective participants generally; or
(b)       a class of participants or prospective participants that includes the person.
Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).
(2)Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (1), the Minister must be satisfied:
(a)for rules to which paragraph (1)(a) applies—that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or
(b)for rules to which paragraph (1)(b) applies—that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.
(3)National Disability Insurance Scheme rules may declare a support for the purposes of subsection (1) only if at least one of the following applies:
(a)       the declaration of the support implements Australia’s obligations under:
(i)the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006; or
(ii)       any other agreement with one or more other countries;
(b)       the declaration of the support enables the provision of sickness benefits.
Supports that are not NDIS supports.
(4)The National Disability Insurance Scheme rules may declare that a support is not an NDIS support for:
(a)       participants or prospective participants generally; or
(b)       a class of participants or prospective participants.
Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).
Rule 5 of the Transitional Rules is as follows:
What supports are NDIS supports—general rule.
Supports that are NDIS supports unless otherwise provided:
1For 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,
(d)a State or a Territory.
Supports that generally are not NDIS supports:
2For 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 subsection 10(4) of the Act which states that the Transitional Rules may declare that a support is not a NDIS support for a participant or a prospective participant.
Schedule 2 to the Rules contains a categorised list of requested supports that are declared not to be NDIS supports. What appears to be potentially relevant items are 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
4. Day-to-day living costs — lifestyle
The following:
(g) standard recreational equipment and tools, including toys, balls and racquets.
(q) general health, fitness, social or recreational costs or services.
12. Health
(e) equipment or assistive products prescribed or issued as a result of clinical care, treatment or management from a medical practitioner and then delivered in the clinical setting, unrelated to the person’s disability.
I again note that neither the Applicant nor the Respondent are asserting that the Thera Trainer came under any of the categories in Schedule 2.
Schedule 1 to the Rules contains a categorised list of requested supports that are declared to be NDIS supports. Once again, what appears to be the relevant sections are listed below:
Schedule 2—Supports that NDIS supports unless otherwise provided.
The following table sets out supports that are NDIS supports for participants and prospective participants (subject to subsections 10(4) and (9) of the NDIS Act and subsection 5(2) of this instrument):
Item Category Supports
Item 1:
7. Assistive equipment for recreation
The provision of assistive products used in sports or other recreational activities:
This includes the following:
(a) personal recreation equipment modification and sporting equipment modification
(b) services to assess and prescribe deliver adjust and train a participant in the successful use of an assistive product
(c) maintenance, spare parts and consumable items specific to an assisted product
18: Exercise physiology and personal well-being activities
Supports that maintain or increase physical mobility or well-being through personal training or exercise physiology to address the functional impact of the participant’s disability.
This includes the following:
(a) accessing services from an appropriately qualified professional.
(b) assessment and development of a personalised exercise program which aims to increase or maintain a participant’s functional capacity.
(c) maintenance of muscle strength, range of motion, balance, and mobility.
34: Therapeutic supports
Supports that provide evidence-based therapy to help participants improve or maintain their functional capacity in areas such as language and communication, personal care, mobility and movement, interpersonal interactions, functioning (including psychosocial functioning) and community living.
This includes an assessment by allied health professionals for support planning and review as required.
Also, of importance to an assessment of this matter are both Subsection 10(6) of the Act and Rule 7 of the Transitional Rules.
Subsection 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:
(e)the support would replace one or more other supports that are NDIS supports for the participant; and
(f)the cost of the support is the same or lower than the total of the costs of the supports it would replace; and
(g)the support would provide the same or a better outcome for the participant than the supports it would replace; and
(h)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 both.
Rule 7 of the Transitional Rules is as follows:
Replacement support determinations
Supports for which determinations may be made:
1For 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.
2For 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.
3The table is as follows:
Replacement support determinations
Column 1 Column 2
Item Supports Conditions
1Standard commercially available household items
The support must:
(a)The funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and community to 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 specify is that a participant may apply to have a support that would otherwise be considered not to be an NDIS support considered as a replacement support determination, subject to it meeting the requirements specified in Rule 7(3).
I shall return to the relevance of the Transitional Rules to this case when I consider whether the requested additional support can be found to be reasonable and necessary under the Act.
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 here is a sound reason not to do so.[15]
[15] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; Madelaine and National Disability Insurance Agency [2019] AATA 4025.
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.[16]
[16] National Disability Insurance Agency, ‘Operational Guidelines: Overview of the NDIS Operational Guideline’ <>
There is no power conferred by the NDIS Act to make Operational Guidelines, and they are issued in an exercise of executive power.[17] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines; however, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2),[18] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation, however they should not be bound by it. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection,[19] where Mortimer J (as Her Honour then was) held:
‘Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it …’
[17] G v Minister for Home Affairs [2019] FCAFC 79 [18].
[18] [1979] 24 ALR 577 [590].
[19] [2018] FCA 1229.
Therefore, unless the Support Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether Ms Roberts meets the reasonable and necessary criteria.
Summary of the Changes to the Legislation
I appreciate that to a lay reader much of what is recorded above is highly complex and difficult to comprehend. To summarise the effect of these changes I note the following.
The new legislation applies to both existing participants in the Scheme and prospective applicants.
The new law came into effect on 3 October 2024 and applies to all existing requests for support, including those such as Ms Roberts, that are currently before the Tribunal.
Subsection 10(1) of the Act now allows the NDIS to classify a support in the Transitional Rules as a NDIS support which can be approved if it meets the other reasonable and necessary criteria in subsection 34(1).
Those supports that may be NDIS supports are listed in Schedule 1 to the Transitional Rules.
Conversely subsection 10(4) now allows the NDIS to classify a support as ‘not an NDIS support’ in the Rules.
Rule 5(2) gives effect to subsection 10(4) by stating that if a requested support is listed in Schedule 2 to the Transitional Rules, then it is ‘not a NDIS support’.
Subsection 34(1)(f) now requires that for a requested support to be considered to be reasonable and necessary, that support must be ‘a NDIS support’ as well as meet the other reasonable and necessary criteria specified in paragraphs 34(1)(aa) to (e).
If a decision maker, such as myself, finds that a requested support falls within any of the 24 categories itemised in Schedule 2 to the Rules, then it cannot be found to be reasonable and necessary even if I were to find that all the other criteria have been met.
I note that in many cases items that are listed in Schedule 2 to the Rules as ‘not NDIS supports’ are identified under quite broad categories rather than as an itemised list of specific items.

I have identified in paragraph 75 several of these broad categories in Schedule 1 that Ms Roberts’ request for funding could potentially fall within.
My task in this decision will be to determine if Ms Roberts’ request for the Thera Trainer meets the reasonable and necessary criteria generally and whether it falls within one or more of those broad ‘not NDIS’ categories.
To find that Ms Roberts’ requested support is reasonable and necessary, I will need to find that her request for funding for the Thera Trainer meets all (emphasis added) of those seven criteria as well as those specified in Rules 3 to 5.
Evidence at Hearing
The hearing of Ms Roberts’ application took place over two days on 24 and 25 February 2025.
For the Applicant, Ms Roberts, Mr Lachlan Marwood and Dr Adam Watson gave oral evidence.
For the Agency, Professor Robert Boland gave oral evidence.
Immediately prior to the hearing Ms Roberts submitted the following additional documents which were entered into evidence:
·Witness Statement dated 21 February 2025 from Mr Vaughn Rothall (general manager of Muve Tech, the Australian distributor of the Thera Trainer).[20]
·Report from Julie Grierson (OT) dated 26 June 2023.[21]
·‘Health benefits of cycle ergometer training for older adults over 70; A review’.[22]
[20] JTB 434-451
[21] JTB 428-433
[22] JTB 452-464
Ms Roberts’ evidence
Ms Roberts gave evidence as to her various surgical procedures. The most recent was in January 2024 when she had a plate replaced in her left femur.
She has made a slow recovery in function since then.
In terms of her post-operative therapy, she has been attending sessions with her physiotherapist and attending hydrotherapy twice a week. She has a support worker assist her to attend these sessions. She tries to do her home exercises each day.
She said that since August 2024 she was unable to do hydrotherapy for three weeks when the pool was closed and has maybe missed three or four sessions in that time.
While she can do some exercises independently, she needs her daughter to assist with some others and gave a number of examples of those exercises her daughter helps her with.
Asked about the proportion of good and bad days she said that since the previous Saturday she has had two bad days though these do tend to fluctuate. On those days she is unable to do her exercises due to her pain levels.
On a good day she can do most of the things she needs to do.
At home she will use a walking frame to mobilise, and this assists her to do many domestic tasks such as her laundry.
Outside of her home, she will use a wheelchair or the walking frame rather than using crutches as there was a risk she could be knocked over when using crutches. She was more reliant on her crutches prior to her last operation but will generally only use them once a week.
She said that if she were funded for the Thera Trainer this would enable her to do exercise independently without the need and cost for an allied health professional needing to be present. In this regard, Mr Marwood has suggested she could use it initially three times a day to over time improve her level of function and overall mobility.
It would also enable her to do the exercise without having to travel to the physiotherapist’s clinic to do training there.
Ms Roberts was referred to her current recommended exercises.[23] She said that some new exercises have been added requiring a band being in place around her ankle. These include leg elevations and pelvic tilts. She said she was unable to place the band around her ankle herself.
[23] JTB 26-35
Ms Roberts was referred to Dr Ma’s radiology report.[24] She said that the range of movement in both her right and left shoulders has declined since 2022.
[24] JTB 103
She first used a Motomed Trainer in 2018 when at St John’s Hospital and she would use it while there on a daily basis. There were a lot of other patients there who were also using it so she would use if for about eight or nine minutes when it was available. When she was fatigued or in pain, she would use it in the ‘assistive mode’, and when she was feeling stronger she would use it the ‘passive mode’. She would only use it to exercise her legs.
She said that she felt good after using the Motomed however she has not had an opportunity to have an extended trial of the Thera Trainer.
She again used the Motomed with Ms Mann (her physiotherapist) in June 2024 again focusing on her legs. She also had a trial with Mr Marwood at his clinic. She has not used the Thera Trainer but understands that it is similar to the Motomed Trainer.
When asked about her possible shoulder replacement surgery, as outlined in her Tribunal application,[25] she said that she would still need to have this surgery, however no date for this has been made.
[25] JTB 153
Asked whether she had trialled any of Associate Professor Boland’s suggested exercises, she said that she did so such exercises whilst in rehabilitation using a pulley fixed in the ceiling however, she has not done such exercises since.
Mr Marwood’s evidence
Mr Marwood was the next witness for the Applicant.
After answering several questions concerning his qualifications and professional experience, Mr Marwood told us that he has been Ms Roberts’ physiotherapist for about four and a half years.
He said that his role in Ms Roberts’ treatment is the provision of manual therapy and prescribing exercises she can do at home or attending hydrotherapy. He will assess her capacity to perform such exercises before prescribing these for her to do herself at home.
He provided a summary of those exercises including those that have been more recently prescribed.
He said that the recently added leg raise exercise she can perform within her limitations, which in Ms Roberts’ case includes a lack of strength in her inner quadriceps. He acknowledged she would require assistance placing the resistance band around her ankle.
Responding to why he was supporting Ms Roberts’ use of the Thera Trainer, he said it would improve the strength in her legs and potentially reduce her pain levels.
He provided an explanation of the various modes in the machine such as active, passive and assistive modes.
Using the assistive mode would allow Ms Roberts to place her shoulders at the maximum range of her movement. He said that Ms Roberts can’t currently do this independently as she lacks the strength and needs her daughter who is not a health professional to assist her.
The Thera Trainer will allow Ms Roberts using the assistive mode to over time increase strength and range of movement and assume greater ability using her own strength to do so.
It would also assist with neuroplasticity and her cardiovascular system by placing load on her muscles and bones. It should over time in Mr Marwood’s opinion improve Ms Roberts’ mobility leading to greater social engagement and placing her at reduced risk of tripping or falling.
Mr Marwood confirmed that based upon the trial of the Thera Trainer as outlined in his report,[26] using the Trainer would improve Ms Roberts’ mobility function and range of movement. She could use the Trainer in her own home and do so independently without the need for either formal or informal supports.
[26] JTB 18
In addition, he said that while using the Trainer would not reverse the effects of her rheumatoid arthritis, it would slow its progress.
Asked about the prospect of Ms Roberts needing a shoulder replacement procedure, Mr Marwood indicated this would be needed at some point in the future. She would likely have a degree of reduced strength post the procedure.
Referring to Ms Roberts’ other trials using the Motomed machine Mr Marwood agreed that these had been focused on Ms Roberts’ lower limbs and he agreed there was no evidence which indicated benefits to her upper limbs from its use.
Mr Marwood was asked his view on the recommendation from Associate Professor Boland to use a pulley system. He said that he does not use this system as he considers it largely ineffective and it would not be suitable for Ms Roberts due to her limited range of motion.
Responding to Professor Boland’s observation that the Trainer would or could not improve Ms Roberts’ strength in her upper limbs, he disagreed as he had seen some modest increase in the past few months and more significant increase in her lower limb strength.
Dr Watson’s evidence
Dr Watson gave his evidence on the second day of the hearing. He confirmed he has been treating Ms Roberts since January 2020.
He believes that using the Trainer will benefit Ms Roberts in terms of her strength, capacity to weight bear and improved mobility.
Using the machine in its passive mode would keep her joints moving, and if she uses it in the other modes, it would improve her strength and mobility.
In the assistive mode the machine should increase her currently limited range of movement in her upper limbs and allow her to operate in a range she could not achieve without assistance.
Due to her severe arthritis, she has difficulties following her current home-based program. The Trainer will allow Ms Roberts to perform an exercise program in a more meaningful way.
Asked if he was aware of any medical studies addressing the use and potential benefits of the Trainer, Dr Watson said that he did conduct research into the medical literature. There are no studies which address the use of the Trainer for those with severe rheumatoid arthritis with most focused on those with neurological conditions. These studies did demonstrate improvements in weight bearing capacities and gait.
Use of the machine is likely to improve her pain levels in her legs as her strength and muscle development would leave her less prone to strains. Her mobility and capacity to walk is also likely to improve.
Dr Watson was asked about Professor’s Boland’s opinion that neither the Trainer nor the use of a pulley system was likely to improve the function of Ms Roberts’ shoulder cuff.
Dr Watson in response noted that the shoulder replacement surgery would at some point be inevitable. However, in his view such surgery should be delayed as long as possible, and resistance training would be the best course of action in the medium-term. The muscles in her shoulder still function reasonably well and the stronger they can be, the better. This will also postpone the decline in those muscles even if her shoulder joint is damaged.
In addition, using the Thera Trainer in its assistive mode will allow her to lift her arms more than she could unaided.
Dr Watson was asked about his recommendation of a six-month trial of the Thera Trainer and said he would still support the use of the Trainer by Ms Roberts even if such a trial did not take place.
He would recommend that Ms Roberts continue to walk independently as much as possible to maintain her level of functional mobility as once that was lost it would not be possible to get it back.
When referred to Professor Boland’s recommendation of a pulley system as an alternative, Dr Watson agreed that for the right individual, that was justifiable, however for Ms Roberts that would not be achievable as would also be the case with standing exercises.
Questioned about the importance of biofeedback when using machines such as the Thera Trainer, Dr Watson said it provides information on how the user is progressing in real time and acts as a motivating factor in increased load and resistance over time.
Professor Boland’s evidence
Professor Boland provided the Tribunal with a summary of his qualifications and professional experience.
He was asked if he believed that the Thera Trainer could improve upper limb strength and responded that it would not do so.
He said that in order to do this a person would need to operate with resistance, repetition and load bearing. In other words, they need to challenge their musculoskeletal system by these means. He acknowledged the difficulty for Ms Roberts in this regard due to the pain caused by her arthritis.
Professor Boland was referred to the X-ray report prepared by Dr W.J. Ma.[27]
[27] JTB 103
Asked what he considered this report indicates, Professor Boland said that in his opinion, it indicates a significant deterioration in both Ms Roberts’ left and right shoulders, requiring a shoulder replacement.
The degree of deterioration would restrict her capacity to use any assistive technology. If she used the Trainer as indicated, she would be at risk of injury as it would cause squashing of her bursar muscle leading to more pain and reduced function and it was not possible to strengthen her shoulders in the absence of a functioning shoulder cuff.
He did not believe that the use of the Thera Trainer would act to slow the decline in her shoulder function and the only way to address this was the shoulder replacement surgery.
He also did not agree with Dr Watson’s view that the use of the Thera Trainer would delay the need for a shoulder reconstruction.
Professor Boland said that in his view, the use of a pulley system will achieve the purported benefits of the Thera Trainer at significantly less expense. He said the pulley system was the go‑to device for every physiotherapist as it is cost effective and can address multiple shoulder issues.
Professor Boland saw no benefit in using the Thera Trainer in its assistive mode, as all it was doing was stretching without increasing strength and the same result can be achieved with a pulley system or using bands.
In his view the only way to improve strength is to challenge the musculoskeletal system and strength would not be enhanced if it is assisted.
Responding to Mr Marwood’s view that muscle atrophy could be reversed, Professor Boland again disagreed. He said that with a muscle tear the muscle tissue would be replaced by fatty tissue and this process was irreversible.
Referring to Mr Marwood’s evidence that he had observed an increased range of movement in Ms Roberts’ knee, Professor Boland said there may be a range of factors involved and the observation was not clinically significant. Any such observation would need to be based on data to establish it was clinically significant.
Referring to Dr Watson’s evidence that Ms Roberts would not have the strength to use a pulley system, Professor Boland said this indicated that a shoulder replacement was necessary.
He said that, overall, Ms Roberts’ trajectory would be towards further surgery and not improved strength and function.
This was because her shoulder muscle is detached, and if this is the case it cannot operate at its full range of movement.
The Professor also expressed doubt that there would be any improved walking ability arising out of the use of the Thera Trainer or improvements in Ms Roberts’ cardiovascular system arising from using the Thera Trainer in assisted mode.
Final Submissions
The representatives for Ms Roberts and the Agency both advised me that they would be able to provide oral submissions.
Applicant’s Submissions
Mr Royston for Ms Roberts made submissions addressing the section 34 criteria.
Mr Royston submitted that the issues before the Tribunal are as follows:
·Does the Thera Trainer represent value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support?
·Will the Thera Trainer be, or is it likely to be, effective and beneficial for Ms Roberts, having regard to current good practice?
·Is the Thera Trainer an NDIS support?
In terms of the likely benefits and effectiveness of the Thera Trainer Mr Royston submitted:
·That the Tribunal should take account of the available documentary evidence, Ms Roberts’ lived experience and the opinion of the expert witnesses.
·In line with page 10 of the NDIS reasonable and necessary guidelines a proposed support can be effective and beneficial if it will help a participant maintain their current level of functioning.
In terms of the available medical literature Mr Royston conceded that while there was no literature addressing the efficacy and benefits of the Trainer for those with rheumatoid arthritis, the material provided by Mr Rothall indicated its effectiveness for older people. That material indicated potential benefits in the domains of muscular strength and cardiovascular health.[28]
[28] JTB 461- 462
In terms of Ms Roberts’ lived experience, Mr Royston referred me to paragraphs 45, 59 and 60 of Ms Roberts’ Statement of Lived Experience addressing the impact of her rheumatoid arthritis, her difficulties managing her prescribed exercises and her experience using the Trainer. Mr Royston said that her oral evidence was consistent with her statement.
If Ms Roberts had the Trainer at home she would be able to use it more frequently and it would take a significant amount of time and energy to go to her physiotherapist’s clinic to use it there.
In terms of the expert witnesses who gave evidence, there was a strong divergence of opinion.
He submitted that the weight of the evidence lay with Dr Watson and Mr Marwood who both gave evidence that use of the Thera Trainer was likely to improve her strength, cardiovascular function and reduce her pain levels.
The evidence from Ms Roberts’ therapists was that the biofeedback features of the Trainer would increase Ms Roberts’ level of engagement with exercise.
Dr Watson in his evidence indicated that if Ms Roberts used the Trainer in the passive mode, it would keep her muscles supple, increase her range of motion and reduce scarring.
In the active and assisted modes Dr Watson’s evidence was that use of the Trainer would improve bone and muscle strength.
Mr Marwood in his April 2023 report[29] stated that the Trainer would assist Ms Roberts maintain joint mobility. He added that the best evidence for exercise-based management of arthritic conditions is active joint mobilisation and strengthening.[30]
[29] JTB 17
[30] JTB 18
Dr Helen Cooley in her October 2023 report stated that it had already been demonstrated that the Trainer has helped Ms Roberts’ strength and mobility. Its benefits relate to the ability to do short bursts of exercise for strength and maintenance of joint mobility. The expected outcome from the use of the Trainer is that Ms Roberts can retain her independence at home.[31]
[31] JTB 68
Addressing Professor Boland’s evidence, he submitted that the Professor had not adequately considered Ms Roberts’ unique circumstances. She is unable to adequately do her prescribed exercises.
The Professor in his evidence did not consider that the Trainer would result in meaningful benefits.
However, his view was contradicted by Dr Watson and Mr Marwood, who considered the Trainer can have benefits for Ms Roberts’ cardiovascular system.
Both Dr Watson and Mr Marwood gave evidence of the benefits of the Trainer’s biofeedback in increasing Ms Roberts’ level of engagement with maintaining her exercises.
Addressing the value for money criteria, Mr Royston stated that the evidence established this. Ms Roberts could perform her exercises with the Trainer at home without the need for a support worker or physiotherapist.
Mr Marwood in his June 2023 report stated that improvement in Ms Roberts’ self‑management would reduce the amount of physiotherapy and other support funding.[32]
[32] JTB 20
Ms Mann in her June 2023 report stated that having the Trainer would allow her to conduct her exercises independently without requiring the support of a health professional.[33]
[33] JTB 67
According to the quote provided the cost of purchase of the Trainer is roughly $11,500. This outlay would be more cost effective than either her using the Trainer at the physiotherapy clinic or a physiotherapy assistant supervising her at home.
In terms of Professor Boland’s recommendation of resistance exercise using relatively inexpensive bands and pulleys, it did not take proper account of Ms Roberts’ pain levels, and both Dr Watson and Mr Marwood said that this would currently be beyond her capabilities and could place her at risk of further injuring her shoulder.

Based on the evidence of her health professionals and the anticipated benefits including greater independence, the use of the Trainer would reduce her need for supports in the longer term.
Dr Watson also in his evidence indicated that if Ms Roberts continues to lose strength in her legs, she will become reliant on a motorised wheelchair with its attendant cost. He also said that prior to needing a shoulder replacement, Ms Roberts could maintain the level of function in her undamaged muscles in her shoulder.
Mr Royston noted that while both Dr Watson and Mr Marwood supported a funded trial of the Trainer, they would remain supportive of the purchase being funded in the absence of such a trial.
Turning to the question of whether the Trainer should be classified as an NDIS support, Mr Royston submitted that, properly considered, the Trainer and its function could not fall under any of the categories in Schedule 2 to the Amending Act.
He submitted that it did fall under item 7 (assistive equipment for recreation) of Schedule 1. He submitted that the Trainer, properly considered, is an assistive product for sport or recreational activities. The reason for its recommended use was not relevant to this classification and the focus should be on the support itself.
The approach taken in VPYC was in keeping with section 10 of the Act and the objective of the Act to ensure a nationally consistent approach.
Turning to whether the NDIS should be regarded as being responsible for the funding of the Trainer, Mr Royston noted that it cannot be provided on either a short-term or long-term basis by the mainstream health system.
The requested support meets Rule 7.4 as it related to Ms Roberts’ ongoing functional impairment.
Addressing Rule 5.1, Mr Royston stated the Trainer met this Rule in that:
·It does not present a risk of harm;
·It is related to Ms Roberts’ disability;
·It does not duplicate existing supports; and
·It does not relate to day-to-day living costs;
·It is not contrary to law; and
·It does not constitute income replacement.
In conclusion, taking all of the above into account, Mr Royston submitted the requested funding for the Thera Trainer met the section 34 criteria.
Respondent’s Submissions
Mr Kenneally provided the Agency’s post-hearing submissions.
He commenced those submissions by addressing whether the Thera Trainer can be considered a NDIS support. He agreed with the construction of this section outlined in Mr Royston’s submissions and in particular whether it fell within item 7 of Schedule 1 (assistive equipment for recreation).
In his submission while the Thera Trainer could be considered to fall within this category, its primary purpose was rehabilitative and therapeutic and as such is more appropriately funded through the mainstream health system.
Mr Kenneally advised the Tribunal that he was instructed to concede the following previous objections made in paragraphs 44(b), (d) and (e) of the Agency’s SOFIC dated 17 September 2024:
·Rule 5.1(b) – not related to a participant’s disability;
·Rule 7.5(c)(i) – predominant purpose of treatment; and
·Rule 7.5(c)(ii) – improving a person’s functional status.
Turning to the question of whether the Thera Trainer represented value for money and whether it is likely to be effective and beneficial, he submitted that the evidence pointed to it either not being beneficial or, at best, its benefits would be marginal.
Mr Kenneally acknowledged that Ms Roberts presents as a unique case with very severe rheumatoid arthritis.
Mr Kenneally noted that Professor Boland’s evidence was that the Thera Trainer would have no benefit at all.
Further there was no academic literature establishing its potential benefits for those with Ms Roberts’ condition.
Ms Roberts has used a similar machine only three times and there was no objective evidence as to any benefit she may have obtained from its use. She did indicate in her statement that she had felt good after using the machine.
Mr Kenneally submitted that in making my decision, I should prefer Professor Boland’s evidence over that of Dr Watson and Mr Marwood, taking account of his extensive experience in the hospital and rehabilitation setting.
Professor Boland’s evidence was clear in that resistance exercises can increase muscle strength, however that presupposes that a user will have intact muscles which Professor Boland indicated Ms Roberts does not. Overall, he considered that sit to stand exercises would be more effective and more based on evidence.
His submission was that in a number of areas, I should give greater weight to Professor Boland’s evidence over that provided by Mr Marwood as follows:
·He submitted that Mr Marwood’s views on the recent radiology report and the issue of neuroplasticity were somewhat simplistic and again I should prefer Professor Boland’s evidence on these issues.
·Similarly, Professor Boland raised concerns about the exercises Ms Roberts has been prescribed.
·Professor Boland’s evidence on the impact of pain on Ms Roberts was more detailed than that provided by Mr Marwood.
Mr Kenneally submitted that Dr Watson’s evidence was more measured than Mr Marwood’s, however he further submitted that unlike Professor Boland, Dr Watson is not an expert in musculoskeletal or in day-to-day rehabilitation management.
He has only seen Ms Roberts twice this year and was not aware that Ms Roberts could perform sit to stand exercises.
His evidence that Ms Roberts could perform exercises which could improve deltoid muscles was contradicted by Professor Boland who stated that such exercises would improve her shoulder function.
Further Dr Watson was unable to point to any medical studies that would apply to Ms Roberts’ rheumatoid arthritis.
There was insufficient evidence to establish past or future benefits from the use of the Thera Trainer on Ms Roberts’ cardiovascular system and that sit to stand exercises would achieve this benefit.
In closing, Mr Kenneally said that Ms Roberts’ own evidence was reliable and credible. All the medical witnesses agreed on her level of engagement and acknowledged her desire to have the funding to use the Trainer but that the Tribunal should not place significant weight on this.
Consideration
I shall now address the various elements of section 34 of the Act that remain in dispute, namely:
·Is the Thera Trainer a NDIS support?
·Will the requested funding be, or is it likely to be, effective and beneficial for Ms Roberts, having regard to current good practice?
·Does the requested support represent value for money in that the cost of the support is reasonable, relative to both the benefits achieved and the cost of alternative support?
·Is the requested support within Rules 3.5, 5.1 and 7.5 and the NDIS Assistive Technology Operational Guidelines?
Is the requested support a NDIS support?
I consider that of the various criteria in section 34 the parties do not agree upon, it is best to begin my assessment with whether the Thera Trainer is an NDIS support. This is because, if this equipment is not an NDIS support, I am not required to assess whether it meets any of the other contested criteria. I have previously noted in my summary of the recent amendments to the Act that all the individual criteria in section 34 must be established in order for a requested support to be found reasonable and necessary.
This approach was recommended by Senior Member French who in FSWN and National Disability Insurance Agency[34] (FSWN) provided a helpful two-stage approach to answering the question of whether a requested support is ‘an NDIS support’. I will refer to this below:
Stage 1 Ascertain if the requested support is an NDIS Support as defined. This inquiry is focused on the support, not the participant.
Step 1: Determine if the requested support is of a character that falls within the scope of a category of support specified in column 1 of the Table to Schedule 2 of the Transitional Rules by reference to the description of supports that fall within the scope of that category contained in column 2 of the Table.
If the answer to that question is “yes”, then stage 1 is complete. The requested support is not a NDIS Supportand cannot be approved for inclusion in a SoPS because of s 34(1)(f) (subject to a replacement support determination being made, as to which see following).
If the answer to that question is “no”, then proceed to step 2 of stage 1:
Step 2: Determine if the requested support is of a character capable of falling within the scope of a category of support specified in column 1 of the Table to Schedule 1 of the Transitional Rules by reference to the description of supports that can fall within the scope of that category contained in column 2 of that Table.
If the answer to that question is “no”, then the requested support will not be a NDIS Support and cannot be approved for including in a SoPS because of s 34(1)(f).
If the answer to that question is “yes”, then the requested support will be a NDIS Support that is capable of being approved for inclusion in a SoPS by operation of s 34(1)(f), and stage 2 of the enquiry is reached.
Stage 2: Ascertain if the requested support satisfies each of the other criteria specified in s 34(1)(aa) to (e) and the associated Supports Rules. There is some overlap of the stage 1 and 2 enquiries. However, in my opinion stage 2 is primarily a participant focused enquiry. That is, it seeks to establish the benefit of the support to the participant. To the extent that stage 2 also requires examination of the efficacy of the support per se it adds nothing to the outcome of the stage 1 enquiry in my opinion.
The question of whether a requested support is, or is not, a NDIS support is a mixed question of fact and law. The issue of fact to be determined is whether the requested support falls within a category of items specified in column 1 of the Tables to Schedules 1 and 2 of the Transitional Rules. If it does, it will either be, or not be, a NDIS support by operation of law.[35]
[34] [2025] ARTA 114
[35] Ibid at para 43
Senior Member French also noted that it is not sufficient to find after considering Schedule 2 that a requested support is not listed as ‘not an NDIS support’ without also determining that the requested support falls within one of the categories in Schedule 1 and there is an NDIS support.
Turning to the party’s respective positions as I understand them, they appear in agreement that the Thera Trainer does not fall within any of the categories in Schedule 2. The Agency in its most recent submission stated that it did not consider the Thera Trainer fell within any of the Schedule 2 categories.
Therefore, following the methodology outlined in FSWN, I will ascertain if the requested support falls under the various items listed in Schedule 1 identified as NDIS supports.
It appears common ground that both parties consider that the Trainer could be considered to come under item 7 of Schedule 1 ‘assistive equipment for recreation’. However, while the Applicant asserts that the Trainer can be considered covered by this item, the Respondent submits that it does not as its primary purpose was rehabilitative and therapeutic and as such is more appropriately funded through the mainstream health system.
In response to that objection, the Applicant submitted that the reason for its recommended use was not relevant to its classification, and that my focus should be on the support itself.
I express at this point some difficulty accepting that the specific intended use of the Thera Trainer neatly falls within the terms ‘the provision of assistive equipment used in sports or other recreational activities’.
While it is certainly clear that the Thera Trainer can be categorised as ‘assistive equipment’, what Ms Roberts will be using the Trainer for is not readily classifiable as either a sport or a recreational activity.
On this point I tend to agree with the Agency’s submission that its intended primary use is more rehabilitative and therapeutic in nature.
Counsel for Ms Roberts in his submission asserted that the reason for its recommended use was not relevant to this classification and the focus should be on the support itself.
While that argument may well be right, it does not really address my concerns here. The assistive product (in this case the Thera Trainer) needs to be used for sporting or recreational activities.
It is certainly not a sporting activity as one would generally or ordinarily understand that term. Ms Roberts’ use of the machine based upon Dr Watson’s and Mr Marwood’s recommendation is to maintain and potentially improve muscle strength, range of movement and cardiovascular health.
I also consider that Ms Roberts’ use of the Trainer with the intention of achieving those goals could not be categorised as ‘recreational activity’. While it may well be that Ms Roberts may experience some enjoyment in the use of the Trainer, it does not appear to be its primary purpose in her case.
For these reasons, I do not consider item 7 of Schedule 1 is the appropriate category.
There remain two other possible items in Schedule 1 that may apply here, namely item 18 (exercise physiology and personal well-being activities) or item 34 (therapeutic supports).
The first item I will consider is item 34, the full description of which is as follows:
Supports that provide evidence-based therapy to help participants improve or maintain their functional capacity in areas such as language and communication, personal care, mobility and movement, interpersonal interactions, functioning (including psychosocial functioning) and community living.
This includes an assessment by allied health professionals for support planning and review as required.
The other possible relevant item is item 18 whose full text is:
Supports that maintain or increase physical mobility or well-being through personal training or exercise physiology to address the functional impact of the participant’s disability.
This includes the following:
(a) accessing services from an appropriately qualified professional.
(b) assessment and development of a personalised exercise program which aims to increase or maintain a participant’s functional capacity.
(c) maintenance of muscle strength, range of motion, balance, and mobility.
As can be seen from the above summaries, there appears to be a significant degree of overlap between items 34 and 18, in that they both cover alternatively improvements or maintenance of functional capacity with the involvement of allied health professionals.
I again note the Agency’s submission that item 34 was not applicable to the requested support as it was restricted to person-to-person supports and did not relate to the supply of assistive technology. I do not consider that the same proviso applies to item 18 for reasons I will explain.
I note that neither party addressed any submissions to the applicability of item 18 to the Thera Trainer.
I consider item 18 is directly related to Ms Roberts’ circumstances. This is because:
·It specifically refers to supports that maintain or increase physical mobility or well‑being.
·The methodology to obtain those goals is through personal training or exercise physiology.
·It is designed to address the functional impact of a participant’s disability.
The item provides three requirements such as:
·Accessing services from an appropriately qualified professional.
·The assessment and development of a personalised exercise program which aims to increase or maintain a participant’s functional capacity.
·The maintenance of muscle strength, range of motion, balance, and mobility.
My reading of item 18 is that the examples given are not intended to be exhaustive nor that they be read conjunctively, namely that all three criteria must be met in order to be considered ‘an NDIS support’. Rather they provide guidance as to what supports may be considered which include one or more of those criteria.
In any event, I note that the support Ms Roberts is seeking meets all three of the listed criteria in that:
·Ms Roberts is accessing the services of an appropriately qualified professional, namely Mr Marwood (a physiotherapist).
·She is engaged in a personalised exercise program which aims to increase or maintain her functional capacity.
·The goals of that program are the maintenance of her muscle strength, range of motion, balance, and mobility.
The question before me then is whether the funding of a piece of assistive technology such as the Thera Trainer potentially falls under item 18, or is it, as submitted by the Respondent in relation to item 34, restricted to the provision of person-to-person therapy?
The first point of difference between the two items is that item 34 specifically refers to the provision of ‘evidence-based therapy to help participants improve or maintain their functional capacity’.
Item 18 does not indicate a limitation to the provision of therapy, rather it is more general in nature encompassing ‘supports that maintain or increase physical mobility’ etc.
For that reason, my view is that as the Thera Trainer clearly meets all of the listed criteria in item 18 and its express purpose is the maintenance or increase in Ms Roberts’ physical mobility etc, it falls under this category.
It is therefore an NDIS support for the purposes of subsection 10(1) and subsection 34(1)(f) of the Act.
Will the requested funding be, or is it likely to be, effective and beneficial for Ms Roberts, having regard to current good practice?
This particular criterion was strongly contested by the parties and the health professionals providing oral evidence at the hearing, with Professor Boland firmly of the view that it would provide little or no benefit and Ms Roberts and Dr Watson and Mr Marwood also firmly of the view that it would be effective and beneficial.
Professor Boland considers that based upon Ms Roberts’ current presentation she will not receive any potential maintenance or increase in her muscle and bone strength, and cardiovascular health. This is particularly the case with her shoulders as the cat scans and X‑rays indicate significant damage that cannot be ameliorated by use of the Thera Trainer. He advocated for other training systems that would achieve these goals.
Dr Watson and Mr Marwood for their part believe that having the capacity to use the machine in her home will allow her to use the machine regularly, provide benefits over time to her muscle and bone strength, and delay further deterioration in her overall function including her mobility.
Professor Boland’s view was that the use of the pulley system would achieve the purported benefits of the Thera Trainer at significantly less expense. He said the pulley system was the go-to device for every physiotherapist as it is cost effective and can address multiple shoulder issues.
Mr Marwood and Dr Watson have provided their views on this alternative. Mr Marwood said that the pulley system would not be suitable due to Ms Roberts’ restricted range of movement, lack of muscle strength and levels of pain. Dr Watson gave a similar response to that question in his evidence.
The Respondent submitted that there is a paucity of medical or allied health research addressing the potential benefits of the Trainer specifically for those such as Ms Roberts with severe rheumatoid arthritis, and this should be a factor in finding that it will not be effective and beneficial.
I consider it is not surprising that there does not exist any literature reporting on trials of the Trainer with those with rheumatoid arthritis. I note that Dr Watson said in his evidence that there is a study of the effectiveness of the machine for those with certain neurological conditions, however I remain sceptical in making any firm findings of how those conclusions may transfer to Ms Roberts’ condition.

In any event the existence of published literature is only one source of evidence, and pursuant to Rules 3.2 and 3.3, I must also take account of the lived experience of a participant as well as expert medical opinion.
In this regard I note that Ms Roberts has used a similar Trainer and reported that she felt good after using it. However, I also note that she has only used this similar Trainer on a few occasions and so her subjective views, while important, cannot be given significant weight.
Professor Boland’s primary opposition to the use of the Thera Trainer and his insistence that it would achieve little to no benefit relates to its use for Ms Roberts’ upper body exercises. In his evidence he provided a detailed assessment of the recent scans of Ms Roberts’ shoulders and the anatomical reasons why the Trainer’s use on the upper body could not have a positive effect on her strength, mobility, and pain levels.
These views were disputed by Mr Marwood who provided a written response to Professor Boland’s initial and supplementary reports.
Ultimately, I consider that the evidence of Dr Watson and Mr Marwood carry more weight than that of Professor Boland. While certainly acknowledging the Professor’s extensive knowledge and expertise, I consider that the Applicant’s two medical witnesses have a more detailed and historical perspective of Ms Roberts’ quite unique presentation and have presented credible arguments as to the efficacy of the Trainer.
After taking account of all the conflicting evidence, I have concluded that the Trainer can be effective and beneficial when used to provide greater range of movement, and when used in either the passive or assisted mode can lead to maintaining or potentially strengthening muscle and bone strength and her cardiovascular system. The particular focus of those potential benefits in my view is on Ms Roberts’ legs.
It appears that both Dr Watson and Mr Marwood consider the use of the Trainer in conjunction with the prescribed exercises can at least slow the rate of deterioration in her lower limbs and potentially increase her strength and mobility and reduce her pain levels.
This they consider would have flow-on benefits to her general mobility and capacity to move independently giving her in turn greater independence and access to the community.
Having identified the reasons why I have given greater weight to the evidence of Dr Watson and Mr Marwood, it follows that I also accept their opinions as to the effectiveness of the Trainer and the potential benefits for Ms Roberts.
In conclusion, I am satisfied on the evidence that the requested support will be both effective and beneficial.
Does the requested support represent value for money in that the cost of the support is reasonable, relative to both the benefits achieved and the cost of alternative support?
Before one can make the comparison that subsection 34(1)(c) requires, it is first necessary to identify what alternative supports may be available.
Following the approach set out in Rule 3.1, in deciding whether a 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, a decision maker is required 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.
The comparable supports before me are the use of the pulley system recommended by Professor Boland or the continued provision of either clinic-based physiotherapy or in‑home physiotherapy with supervision by an allied health professional.
In my assessment of the pulley system, I ultimately found in the previous section that it would not be suitable for Ms Roberts based upon her lack of capacity to effectively utilise it due to her limited range of motion, current low muscle strength, pain levels and the risk of further injury while doing so.
Therefore, the remaining alternatives are the continuation of either clinic-based or in‑home physiotherapy sessions.
There is evidence from Ms Roberts’ allied health professionals addressing the potential cost benefits of the Thera Trainer.
Mr Marwood in his June 2023 report indicated that having the Trainer at home would allow her to ‘independently build her strength and cardiovascular endurance in a safe environment without requiring face-to-face assistance of a health professional’.[36]
[36] JTB 49
Ms Mann in her June 2023 report made the same observation.[37]
[37] JTB 67
Ms Grierson, an occupational therapist, provided a breakdown of the anticipated future support worker and allied health professional costs resulting from further decline in Ms Roberts’ functional costs.[38]
[38] JTB 63
While some of these estimates are, to my mind, somewhat speculative, overall, the additional directly related costs in travel and costs of allied health assistance or therapy sessions will exceed the cost of the Trainer.
Based upon this analysis, the cost of the Thera Trainer assessed over the course of a year is comparable to the alternatives, however when assessed on a longer-term basis it clearly represents value for money at a substantially lower cost.
Addressing the question of improvement in life stage outcomes and long-term benefits for Ms Roberts, I have, after a detailed analysis, satisfied myself that it will be effective and beneficial in the maintenance of muscle and bone strength, maintenance or improvement in mobility and potential greater independence. These benefits potentially over time may in turn reduce the need for other NDIS funded supports such as additional assistive technology and support worker assistance either at home or through accessing the community.
Based on the above, I consider that this criterion has been met.
Is the requested support within Rules 3.6, 5.1 and 7.5 and the NDIS Assistive Technology Operational Guidelines?
Taking account of those Rules Mr Kenneally indicated in his closing submissions were no longer being pressed, I am required to address the following:
·The Agency is not responsible for health (excluding mental health) (Rule 3.6(a)).
·The Agency is not responsible for other activities that aim to improve the health status of Australians, including … (preventative health) (Rule 7.5(b)).
In terms of the applicability of Rule 3.6(a) it needs to be considered in the context of those Rules that clearly ascribe responsibility to the Agency, such as Rule 7.4:
The NDIS will be responsible for supports related to a person’s ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment.
The Thera Trainer is a support both related to Ms Roberts’ functional impairment and enabling her to undertake activities of daily living and meets the other elements recorded in the preceding paragraph.
Therefore, I do not consider Rule 3.6(a) applies to the requested support.
Turning to the Respondent’s submission concerning the applicability of Rule 7.5(b) again I do not agree.
Rule 7.6(c) appears to cover this requested support:
Having regard to the guiding principles above, the following are examples of supports that would ordinarily be most appropriately funded or provided through the NDIS:
allied health and other therapy directly related to increasing, maintaining or managing a person’s functional capacity including occupational therapy, speech therapy and physiotherapy, and specialist behaviour interventions (excluding therapies provided for the purposes of rehabilitation);
I do not consider Rule 7.5(b) prevents me from finding that the NDIS is the Agency responsible for providing this support.
Conclusion
Based on the Tribunal’s above findings, all the criteria under subsection 34(1) of the NDIS Act are satisfied in relation to the requested support. Having considered all the evidence in this matter, the Tribunal is therefore satisfied that funding for the Thera Trainer meets all the criteria to be approved as ‘reasonable and necessary’ under the NDIS Act and for inclusion in the statement of participant supports in Ms Robert’s NDIS plan.
Decision
Pursuant to sub 105(b) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal varies the decision under review made on 4 March 2023 such that, under section 33 of the National Disability Insurance Scheme Act 2013 (Cth), the statement of participant supports specifies:
(a)The reasonable and necessary supports that will be funded include the cost of purchase of a Thera Trainer.
(b)The date by which the CEO must reassess the plan is 12 months after the date of this decision (reassessment date).
(c)All other reasonable and necessary supports in the statement of participant supports are to be funded on a pro-rata basis until the reassessment date.
The Tribunal sets aside the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth).

287. I certify that the preceding 286
(two hundred and eighty six)
paragraphs are a true copy of the
reasons for the decision herein
of General Member A. Williams

…..........................[sgd]...........................................
Associate
Dated: 11 April 2025

Date(s) of hearing: 24 & 25 February 2025

Counsel for the Applicant: Mr Scott Royston

Solicitors for the Applicant: Tasmania Legal Aid

Counsel for the Respondent: Mr Mathew Kenneally

Solicitors for the Respondent: Moray & Agnew Lawyers

Date(s) of hearing:	24 & 25 February 2025
Counsel for the Applicant:	Mr Scott Royston
Solicitors for the Applicant:	Tasmania Legal Aid
Counsel for the Respondent:	Mr Mathew Kenneally
Solicitors for the Respondent:	Moray & Agnew Lawyers