Robinson and National Disability Insurance Agency (NDIS)

Case •

[2025] ARTA 1238

•

22 July 2025

Robinson and National Disability Insurance Agency (NDIS) [2025] ARTA 1238 (22 July 2025)

Applicant/s:  Elena Robinson

Respondent:  National Disability Insurance Agency

Tribunal Number:                2024/0054

Tribunal:Administrative Review Tribunal

Place:Hobart

Date:22 July 2025

Decision:The Tribunal varies the decision under review pursuant to section 105(b) 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 an assistance animal, pre-prepared meals, exercise physiology, short-term accommodation, dishwasher and air conditioning unit - reasonable and necessary supports – applicant sought review of statement of supports to allow for funding multiple supports – 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 afirm

Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Duse and National Disability Insurance Agency [2025] ARTA 37  
FSWN and National Disability Insurance Agency [2025] ARTA 114 at 136-137
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
WVGM and Chief Executive Officer of the National Disability Insurance Agency (NDIS) [2025] ARTA 47

Secondary Materials
 National Disability Insurance Scheme Operational Guideline

Statement of Reasons

  1. This application is about whether the Applicant, Ms Elena Robinson, can have her request for the funding of six further individual supports by the National Disability Insurance Agency (‘the Agency’). In this decision I shall refer to Ms Robinson by her name or as ‘the Applicant’.

  2. Ms Robinson seeks review of a decision made on 16 March 2023 by a ‘reviewer’ under s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) (the ‘decision under review’).[1] This decision confirmed an earlier decision by the Agency, which was made on 3 January 2023, not to approve funding for the above supports.

    [1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘TD’).

  3. The Administrative Review Tribunal’s (‘the Tribunal’s’) jurisdiction arises under s 12 of the Administrative Review Tribunal Act 2004 (Cth) (‘ART Act’), operating in conjunction with


    s 103 of the NDIS Act.

  4. For the reasons set out below, the decision under review is varied, as the Tribunal is satisfied that Ms Robinson has established that a requested support meet the reasonable and necessary criteria under s 34(1) of the NDIS Act.

  5. The Tribunal is satisfied that the following support - namely:

    ·26 hours of exercise physiology;

    meets the reasonable and necessary criteria under subsection 34(1) of the NDIS Act.

    Background

  6. Mr Elena Robinson is a 64-year-old woman who lives in a property in coastal northern New South Wales.

  7. Ms Robinson has been diagnosed with the following conditions:

    ·Autism Spectrum Disorder (ASD) Level 1.

    ·Social Anxiety.

    ·Generalised Anxiety.

    ·Depression.

    ·Dyslexia

    ·Fibromyalgia

    ·Lateral epicondylitis (in both upper limbs)

    ·Hypermobility.

    ·Osteoarthritis

    ·Bilateral foot drop.

    ·Irritable bowel syndrome

    ·Trigger finger

  8. In her application to the Tribunal, Ms Robinson requested the following additional supports be included in her plan:

    ·1. Funding for Pearl (Elena’s dog) to undergo training and accreditation to become therapy assistance dog

    ·2. Support Coordination

    ·3. Transport Allowance (Level 2)

    ·4. Assistance with literacy and numeracy

    ·5. Physiotherapy

    ·6. Increased Podiatry

    ·7. Increased Psychology.

  9. Ms Robinson had previously been approved as a participant in the NDIS. The plan the subject of this review is a three-year plan commencing on 4 August 2023 and ending on 2 August 2026.

    Her previous NDIS supports were as follows:

    Core Supports

    ·$106,458.84, including $1,500 to purchase low-cost assistive technology (plan managed).

    Transport

    ·$5,350.50 for support to access work and study, or to participate in social and community activities.

    Capacity Building Supports

    $18,888.94 including:

    ·$3,992.58 for establishment and management of plan management (plan managed)

    ·Improved daily living $14,896.39: including $7,718.76 for psychology, $1,939.90 for occupational therapy and $5,237.73 for podiatry (plan managed).

  10. The Tribunal notes that on 24 January 2025, the Agency approved a new one-year plan commencing on 24 January 2025 and scheduled to expire on 23 January 2026.

  11. The supports approved in that plan include:

    ·36 hours of support coordination.

    ·2 hours per week of in-home cleaning and maintenance assistance.

    ·2 hours per month of house and yard maintenance.

    ·7 hours of support worker assistance for one-to-one support to assist with household tasks, attend community, social and civic activities, attend appointments, manage finances and other support as needed.

    ·12 hours of psychologist support

    ·26 hours of physiotherapy

    ·10 hours of occupational therapy support

    ·9 hours of podiatry

    ·$3,605.04 transport allowance (level 3).

  12. The legal effect of a new plan is that Ms Robinson’s application is therefore taken to be an application to review the decision to approve the supports in the Current Plan (section 103 of the NDIA Act).

    Decision under review and application for review to this tribunal

  13. Taking account of the planning history recorded above, I will now provide this summary.

  14. The Respondent provided an approved statement of supports for Ms Robinson on 4 August 2023, after assessing Ms Robinson’s request for funding for the above. It advised that Ms Robinson’s request for the funding, did not meet the reasonable and necessary criteria under s 34 of the Act and Rule 5 of the NDIS (Supports for Participants) Rule (‘the Rules’) (the initial decision).

  15. On 6 October 2023, Ms Robinson requested that the Agency conduct an internal review of the initial decision (initial review decision).

  16. The Respondent conducted its internal review and on 12 December 2023 advised that it had confirmed the initial decision’s finding that Ms Robinson’s request for funding would not be approved.

  17. As noted above a new plan was approved on 24 January 2025. This therefore becomes the reviewable decision.

  18. The reasons provided for the initial review decision was as follows:

    Funding for Pearl (Elena’s dog) to undergo training and accreditation to become a therapy assistance dog

    ·The requested funding for dog-training did not represent value for money (section 34(1)(b)), there was insufficient evidence that it would be effective and beneficial (section 34(1)(d) and it duplicated existing supports. (NDIS (Supports for Participants) Rule 5.1(c)).

    Unspecified increase in hours for support coordination

    ·The requested provision of funding for an unspecified number of hours of support coordination did not represent values for money (section 34(1)(c)) and further it duplicated existing supports NDIS (Supports for Participants) Rule 5.1(c).  

    Request for transport funding (level 2)

    ·The request for Level 2 transport funding did not represent value for money. (section 34(1)(c)).

    Assistance with literacy and numeracy (proper education) (unspecified)

    ·The requested assistance for unspecified number of hours literacy and numeracy training lacked evidence to establish that it would be effective and beneficial and further it was not the responsibility of the NDIS to fund (section 34(1)(c)).

    Physiotherapy

    ·The requested funding for an unspecified number of hours for physiotherapy did not represent value for money and there was insufficient evidence to establish it would be effective and beneficial.

    Podiatry

    ·Requested funding for podiatry did not represent value for money and there was insufficient evidence to establish it would be effective and beneficial.

    Psychology

    ·The requested funding for an unspecified number of hours for psychology did not provide sufficient evidence to establish that it would be effective and beneficial and further it was not the responsibility of the NDIS to fund.

  19. On 4 January 2024, a representative on behalf of Ms Robinson applied to the then Administrative Appeals Tribunal (AAT) for the AAT to conduct an independent review of the reviewable decision.

  20. In her application for review, Ms Robinson noted the following as reasons why she considered the reviewable decision was wrong:

    Elena asked for an internal review of her NDIS plan due to the plan not meeting her needs. She states that the decisions made in the
    review do not match her reasons for needing the supports for:
    1. Funding for Pearl (Elena’s dog) to undergo training and accreditation to
    become therapy assistance dog
    2. Support Coordination
    3. Transport Allowance (Level 2)
    4. Assistance with literacy and numeracy
    5. Physiotherapy
    6. Increased Podiatry
    7. Increased Psychology

    Elena states the critical issue is the rejection of a support coordinator. In the short time of Elena being on the NDIS plan her anxiety and
    stress levels have increased due to being unable to organise the supports she needs in place for her plan. The support from her LAC from
    Blue Sky organisation has not been enough support. Elena finds it extremely challenging to interact with organisations and new people
    due to her ASD and GAD. To not have a support coordinator organising and planning her NDIS support would been detrimental to Elena's
    mental health and has already resulted in her unable to use her plan effectively due to her communication and social barriers.
    Elena stated the phone call that happened on the 6/12/2023 with the person from the NDIS reviewing her plan was unfairly handled as she
    had no advocate to support her through the questions. Elena experienced severe anxiety and become overwhelmed with emotions and
    confusion during the phone call, which led her to being unable to think clearly to provide the responses she would have been able to if she
    had someone supporting her. Elena did not realise the impact the phone call would have on the review.
    Elena would be happy to provide any further information with a support person present to clarify the reasons for her needs to be met within the NDIS plan and to be given time to prepare further evidence.

    Evidence and Submissions

  21. As part of the review process, the Tribunal was provided by the Respondent with those documents previously submitted as part of the original application process (the T Documents). Of potential relevance to this decision are the following reports:

    ·Evidence of Psychosocial Disability Form, Dr Nell Pegum (Clinical Psychologist) and Melinda Boyse (Transition Coordinator) dated 23 May 2023.

    ·Letter, Dr Nell Pegum (Clinical Psychologist) (dated as undated on IRD 6).

    ·Assessment by Melinda Boyse (Transition Coordinator dated 29 March 2023.

    ·WHODAS 2.0 scale dated 2 March 2023.

    ·Letter from Jane Jones Support Worker dated 6 April 2023.

    ·Letter from Dr Nell Pegum dated 15 April 2023.

    ·Report from Melinda Boyse dated 17 April 2023.

    ·Letter from Dr Nell Pegum dated 26 June 2023.

    ·Letter from Dr Nell Pegum dated 29 September 2023.

    ·NDIS Plan 4 August 2023 to 2 August 2026.

  22. After Ms Robinson several more recent reports and supporting letters were provided to the Tribunal:

    ·OT Functional Capacity Assessment Report of Lily Neef, Occupational Therapist, (amended) 5 March 2024 (ER-1)

    ·Able Foods Service Agreement (Schedule of supports and services - Meal delivery), Undated (ER-2)

    ·Letter in Response to SOI of Nicholas Tobin, Physiotherapist, 6 May 2024 (ER-3)

    ·Letter in Response to SOI of Dr Nell Pegum, Clinical Psychologist, 29 May 2024 (ER-4)

    ·Statement of Elena Robinson, Applicant, 29 May 2024 (ER-5)

    ·Quote of CWS Electrical & Air Conditioning, 12 August 2024 (ER-06)

    ·Quote of Nambucca Plumbing, 12 August 2024 (ER-07)

    ·Letter of Dr Nell Pegum, Clinical Neuropsychologist, 15 August 2024 (ER-08)

    ·Letter of Dr Nell Pegum, Clinical Neuropsychologist, 16 August 2024 (ER-09)

    ·Report of Tegan Miller, Occupational Therapist, 16 August 2024 (ER-10)

    ·Response of Applicant to Second Case Conference, Undated (ER-11)

    ·Letter of Julie Evans, Undated (ER-12)

    ·Letter of Dr Marina Seltsova, GP, Undated (ER-13)

    ·Letter to Tribunal of Dr Marina Seltsova, GP, 28 October 2024 (ER-14)

    ·Letter in Support of Assistance Animal Funding of Applicant, Undated (ER-15)

    ·Letter in Support of Air Conditioning of Applicant, Undated (ER-16)

    ·Letter in Support of Respite of Applicant, Undated (ER-17)

    ·Letter in Support of Benchtop Dishwasher of Applicant, Undated (ER-18)

    ·Letter of Briannan Caranagh, Exercise Physiologist, Undated (ER-19).

    ·Letter in support of increased psychology undated (ER21).

    ·Quote for assistance dog training (ER22).

    ·MindDog Efficacy of Assistance dogs (undated) (ER28).

  23. During the conduct of the Tribunal’s pre-hearing procedure, both parties filed with the Tribunal Statements of Issues and Statements of Facts, Issues and Contentions (SFIC).

  24. The most recent or relevant of these documents will be referred to throughout this decision.

    Ms Robinson’s Statement

  25. From my review of the file, it does not appear that Ms Robinson has submitted a statement outlining her position as to the various requested supports. In the absence of such documentation from her, I will assume that her position is that all of the requested supports meet the reasonable and necessary criteria.

  26. She did, however, provide a detailed statement in March 2025 addressing the criteria as it related to her request for her dog, Pearl, to be registered as an assistance animal.

    27.     In May 2025 she provided a detailed written reply to the Agency’s SFIC submitted in April. I will provide a summary of that document after recording the contentions outlined in the Agency’s most recent Statement of Facts Issues and Contentions (SFIC).

    The Agency’s Statements

  27. The Agency provided several statements of issues or position since Ms Robinson’s application was received.

  28. I will restrict my observations to the Statement of Facts, issues and Contentions (SFIC) dated 10 April 2025.

  29. This SFIC itemised the various supports Ms Robinson was seeking and the basis for the Agency’s position that they did not comply with s 34(1) of the Act or any relevant rules.

  30. The Agency’s SFIC noted that the following supports were the subject under dispute:

    ·Assistance Animal: Funding for an amount of $2,040 over 12 months for training and travel plus $300 for Public Access Test.

    ·Physiotherapy and Exercise Physiology 40 hours per annum.

    ·Additional psychology sessions (26 per annum).

    ·Pre-prepared meals: 5 days’ worth of pre-prepared meals per week.

    ·Short Term Accommodation.

    ·Dishwasher: $834.10 for the purchase and installation of a benchtop dishwasher.

    ·Air conditioning: $3,745.50 for the purchase and installation of an air conditioning unit.

  31. In relation to Ms Robinson’s request for, funding for her assistance animal, Pearl, and after providing a summary of the documentation Ms Robinson had provided, the Agency stated:

    ·Animals, including pets and companion animals (other than eligible assistance animals) are not a NDIS support: Transitional Rules Schedule 2 item 7.

    An “eligible assistance animal” may be a NDIS support under Schedule 1. An “eligible assistance animal” is defined as: Transitional Rules s 4.

    eligible assistance animal means a dog or other animal that is:

    (a) accredited under a law of a State or Territory that provides for the accreditation of animals trained to assist a person with a disability to alleviate the effect of the disability; or
    (b) accredited by an animal training organisation prescribed in regulations made under section 132 of the Disability Discrimination Act 1992 for the purposes of paragraph 9(2)(b) of that Act; or
    (c) accredited by a registered NDIS provider who is registered to provide assistance animals under section 73E of the NDIS Act; or
    (d) trained to assist a person with a disability to alleviate the effect of the disability and to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

    ·The evidence does not support a conclusion that the requested support would result in Pearl being an eligible assistance animal because:

    a.there is no evidence that Pearl has been specifically trained to actively perform any disability specific task – that is, no training “to assist a person with a disability to alleviate the effect of the disability”. It is not sufficient that Pearl provides emotional support in the way a companion animal does.

    b.Pearl therefore does not currently meet the requirements of the Rules, or of the NSW or Commonwealth definitions of an “assistance animal”. Pearl is not accredited by any relevant agency, and she does not meet the stated training requirements. It is not presently possible to assess whether she meets the standards of hygiene and behaviour.

    c.There is no evidence that the training proposed would include training for specialised tasks, or what those tasks would be. There is no evidence that the training towards the Public Access Test would include specialised training to perform specific actions to assist a person with a disability to alleviate the effect of the disability.

    d.As a result, there is no evidence that the training proposed would result in Pearl being an eligible assistance animal.

    ·Therefore, the requested support is not a NDIS support within the meaning of the Transitional Rules.

    ·In addition, the evidence provided did not establish that it is reasonable and necessary as ….

  32. In relation to Ms Robinson’s request for additional physiotherapy and exercise physiology hours, and after outlining the evidence of Mr Tobin (Physiotherapist) and Ms Caranagh (Exercise Physiologist, the Agency stated:

    ·It conceded that fortnightly sessions to be reasonable and necessary to be used across either physiotherapy or exercise physiology.

    ·However, it contended there was insufficient evidence to establish the need for 40 sessions per annum.

    ·There is further no sufficient evidence that there is any additional benefit that can be expected from the Additional Physical Therapy, over and above the benefits from the fortnightly sessions provided (as recommended by the physiotherapist), or the magnitude of any such benefit.

  33. In relation to Ms Robinson’s request for additional psychology sessions, and after outlining the evidence from Dr Pegum, the Agency stated:

    ·It appeared that Dr Pegum’s recommendations encompass both interventions specifically directed at addressing the relevant functional impairments, but also treatment which is clinical in nature.

    ·The Agency referred to Schedule 1 of the Rules which indicated that the NDIS will be responsible for supports “that are not clinical in nature and that focus on a person’s functional ability, including supports that enable a person with a mental illness or psychiatric condition to undertake activities of daily living and participate in the community and social and economic life” but will not be responsible for supports which are clinical in nature. The Agency contended that such clinical supports are also not “NDIS supports” under Schedule 2 of the Transitional Rules.

    ·Clinical supports are also excluded by Schedule 1 of the Support Rules, and the principles to determine the responsibilities of the NDIS and other service systems.

    ·The Agency considers that the existing funding for 12 sessions per year to be a reasonable and necessary support for interventions directed towards functional ability which Dr Pegum recommends.

    ·Finally, it contended that based on the current evidence the Tribunal would not be positively satisfied that the requested additional psychology sessions are reasonable and necessary within the meaning of the Act and nor that they are properly NDIS supports.

  1. In relation to Ms Robinson’s request for the funding for pre-prepared meals 5 days per week, the Agency stated:

    ·This requested support for delivery of pre-prepared meals was now classified as ‘not a NDIS support’ specifically referring to Item 3 in Schedule 2 of the Transitional Rules which specified that groceries, all food, and food delivery was not a NDIS support. However, meal delivery where the food and ingredient component can be separately identified from preparation and delivery is excluded from this declaration

    ·Schedule 2 does not prohibit funding for meals where the preparation and delivery component is able to be separated from food, and where the support is otherwise a specific support directed to an impairment arising from the participants disability.

    ·Ms Robinson has indicated that the reason she requires this support is that she has a sensory aversion to cooking including its smells. The Agency stated that there had been little evidence submitted that confirmed this.

    ·The Agency also submitted that it would be preferable to have supports in place that assisted Ms Robinson to improve her capacity to prepare meals and that the provision of delivered meals would potentially make Ms Robinson more dependent and reduce her capacity over time.

  2. In relation to Ms Robinson’s request for short-term accommodation, the Agency stated:

    ·Ms Robinson has requested support in the nature of short-term accommodation (also referred to in the documents as “respite”). This is sought to provide a place for the Applicant to stay in order to visit her daughter and granddaughter who live in Gloucester. She has also sought accommodation to be used for pursuing further education, and for unspecified community engagement.

    ·Under the Transitional Rules, travel costs, including “holiday accommodation … including interstate and overseas travel” are specifically declared not to be NDIS supports (Schedule 2, item 6(a)).

    ·In respect of accommodation for study and community involvement, the same issue applies. Further, “accommodation to attend or participate in work, study, music, theatre, cinema, sporting events or conferences, or any other social, business, private, public, formal or informal event” is specifically declared to be not a NDIS Support by Schedule 2 of the Transitional Rules (Schedule 2, item 4(o)).

    ·The Agency noted that, in any event, Ms Robinson has not identified or enrolled in any further education course, and there is evidence that she may require further support before that will be a realistic option for her. Similarly, there is no specific reason identified for travel outside her community (travel closer to home is included in the Current Plan). Her current supports are directed towards building her skills and capacity to engage in social situations.

    ·Overall, the Agency contended that the requested support is not an NDIS support under the Transitional Rules, and the Tribunal cannot be satisfied it is reasonable and necessary under s 34(1) of the Act.

  3. In relation to Ms Robinson’s request for funding for the purchase and installation of a dishwasher, the Agency stated:

    ·Ms Robinson states that her physical impairments make it difficult to wash dishes regularly, that she requires washing up more regularly than support workers can provide, and it is not practical, cost effective, or suitable for her psychosocial disabilities for support workers to come more often. She says that a dishwasher of this kind will help to increase her independence in keeping her home clean.

    ·The Agency noted that Ms Curdie in her report did not consider that there was a clinical reason why Ms Robinson required a dishwasher.

    ·It also noted that the proper responsibility for the provision of a dishwasher lay with her community housing provider as a ‘reasonable adjustment.’.

    ·The Agency contended that the Tribunal must have regard to the matters set out in r 7.19 and 7.20 of Schedule 1 of the Support Rules. The NDIS will not be responsible for supports which fall within “the responsibility of housing authorities to develop, maintain and refurbish stock that meets the needs of people with disability”. Specifically, the NDIS is not responsible for “ensuring that appropriate and accessible housing is provided for people with disability.”

    ·Because this is not a NDIS support, under s 34(1)(f), this requested support cannot be approved.

  4. In relation to Ms Robinson’s request for funding for the purchase and installation of an air conditioning unit, the Agency stated.

    ·Ms Robinson’s request for an air conditioning unit arose out of her difficulties with thermoregulation arising from her ASD and fibromyalgia, and which reduces her functional capacity and exacerbate her impairments.

    ·There is a lack of medical evidence in support of this request. It is open to the Tribunal to find this evidence is insufficient to find this support satisfies s34(1)(aa).

    ·Ms Curdie in her report acknowledged the need for some form of environment temperature control to assist Ms Robinson but recommended other lower cost methods of doing so.

    ·Also, as with the request for a dishwasher the responsibility for this support falls squarely within the responsibility of Ms Robinson’s housing provider Homes NSW. The installation of air conditioning is a listed Standard Modification, which can be requested and installed on minimal supporting evidence.

    ·There is no evidence that such a request has been made to Homes NSW.

    ·In any event it would be inappropriate and unreasonable to approve this support without first confirming that the necessary consent from Homes NSW has been obtained.

    Ms Robinson’s Reply to the Agency’s SFIC

  5. Ms Robinson provided a detailed and lengthy reply to the Agency’s SFIC dated 22 May 2025. Given its length, I will not record its contents in detail but provide a summary of her contentions under each of the requested supports.

  6. Regarding her request with support for funding Pearl, her assistance animal, Ms Robinson stated:

    ·Pearl is not a companion animal, rather a Psychiatric Assistance Animal and is registered as a Mind Dog in training. She referred to evidence she had previously submitted that confirmed this status. She is training to become a Psychiatric Assistance dog. She listed a range of tasks that such a dog can perform.

    ·Mind Dog is an accredited and registered organisation that is recognised by the Commonwealth for the training and assessment of assistance animals

    ·Pearl has passed her first Public Access Test.

    ·As she is registered as an assistance animal in training, she is therefore eligible to be funded as a NDIS support.

    ·She referred to evidence ER 12, ER 22, ER 27, and ER 28 in support of those assertions.

    ·Ms Robinson records the benefits to her of having Pearl and the risks to her if she was not to be approved for this support.

  7. Regarding her request, for increased physiotherapy and exercise physiology, Ms Robinson stated:

    ·The Agency has conflated her requests.

    ·She is seeking 26 hours of exercise physiology, and that physiotherapy is not in dispute.

    ·The request for weekly exercise physiology sessions is recommended by her two OT’s, Lily Neef and Tegan Allison and her Exercise Physiologist Briannan Cavanagh 

    ·Further evidence which supports this is the reports provided by her physiotherapists Nicholas Tobin (ER 3) and Blake Smoothy.

  8. Regarding her request for additional psychology sessions, Ms Robinson stated:

    ·She is currently funded for 12-hour long sessions per year and is requesting this be increased to 26 hours (including 2 hours for report writing).

    ·Support for this has been provided by Dr Pegum and Ms Neef.

    ·Without this support her function is likely to deteriorate and then require increased supports over time.

    ·She stated that she considers the requested support is both reasonable and necessary and being value for money.

  9. Regarding her request for funding for pre-prepared meals Ms Robinson stated:

    ·She disagreed with the Agency’s assertion about her previous funding for meals.

    ·The services she previously used had separate food and preparation costs and the NDIS never paid for the cost of food. She is only seeking funding for the cost of preparation and delivery.

    ·The requested support is related to her disability as due to her ASD hypermobility; she has poor fine motor skills and poor grip strength.

    ·Her ASD makes it difficult to have people in her small kitchen preparing food and she becomes overwhelmed by the noises and smell of cooking in her small unit. She has a lot of food, smell and texture sensitivities.

    ·Both her OT’s and her GP have recommended this support be reinstated.

    ·She is functionally incapable of meal preparation hence her reliance on the SASH program.

  10. Regarding her request for funding for short term accommodation, Ms Robinson stated:

    ·She is requesting 28 days of short-term accommodation each year.

    ·She would like to use this to travel to Gloucester where her daughter lives. She is unable to stay with her daughter and therefore needs her own accommodation while she is there.

    ·It will allow her to spend time with her granddaughter and build a relationship with her, which is one of her NDIS goals.

    ·The funding for short-term accommodation is relevant to her disability related impairments, and without it, attempts to build relationships with her family risk further decline. her daughter does not have room for her to stay at her house. Being crammed in is not a good environment for me considering my sensory and emotional sensitivities. The risk of conflict and miscommunication and/or being overwhelmed threatens to undo the years of work she has done with Dr Pegum to build and understand these vital relationships and how to maintain them. Having access to short-term accommodation would provide her with a predictable, low-sensory environment at times that my regular supports are unavailable.

    ·Referring to Ms Alison’s report[2] she noted that this funding does not double up with the currently funded psychology as short-term respite serves a different purpose, allowing her to work on building her relationship with her daughter and granddaughter in their community.

    ·Referring to the NDIS guidelines for short-term accommodation, Ms Robinson stated that she met the criteria for such support and that this had been addressed in Ms Alison’s report.[3]

    [2] JTB 31

    [3] ibid

  11. Regarding her request for funding for the purchase of a dishwasher, Ms Robinson stated:

    ·She asked that the Tribunal take note that Fiona Curdie did not receive all her evidence. Ms Curdie was not provided the report from my Exercise Physiologist Briannan Cavanagh (ER-19) or the report from my Physiotherapist Blake Smoothy. She considered this to be a significant oversight on the Agency’s behalf and she asked that the Tribunal consider all her evidence before considering the statements made by Fiona Curdie, in relation to my ability to wash up. She stated that adaptive washing up and kitchen aids have been trialled in the past. She needs to wear braces and splints, which cannot get wet and which gloves do not fit over. Her two OTs assessed her in my home environment, and both have recommended a dishwasher for her to maintain my independence.

    ·The request for the provision of a dishwasher does not fall within “reasonable adjustments” that are expected of a community housing provider. Her Property Manager has previously informed her that this is not a modification that Community Housing can fund and has stated that they are not responsible for funding this request.

  12. Regarding her request for funding for the purchase and installation of an air conditioning unit, Ms Robinson stated.

    ·She asked the Tribunal to consider the evidence I have provided regarding this including the OT report recommendations (ER-1) and (ER-10); as well as letters from my GP, Dr Marina Seltsova (ER-13) and (ER-14) confirming her thermal-regulation difficulties. In addition, the report completed by Fiona Curdie also confirms this request to be related to her disability.

    ·The lower cost alternative suggested by Ms Curdie does not lower the temperature. It is a fan and heater combo and would have very limited effectiveness during the summer months. It would also be a tripping hazard in her small unit. She has previously used a Dyson bladeless fan of similar specs to that recommended by Ms Curdie and she found that it was ineffective at cooling and had a short operating span considering its significant purchase cost. She did not believe this would be an effective lower-cost alternative to the requested air conditioning.

    ·She further noted that her housing provider has advised that the air conditioner is not something it can fund.

    Agency’s evidence

  13. The Agency provided a report prepared by Ms Fiona Curdie (Occupational Therapist) acting as an Independent Medical Expert dated 27 March 2025.

  14. Ms Curdie’s report is quite lengthy, so I do not propose to provide a summary here. Much of Ms Curdie’s findings will be addressed when I record her oral evidence to the Tribunal.

    LEGISLATIVE FRAMEWORK

  15. The NDIS has been in operation for over ten years. It was at the time of its passage into law 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.[4] 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.

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

  16. The NDIS is administered by the Agency established under the NDIS Act. The NDIS 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.

  17. 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.

  18. 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 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).

  19. 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”.

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

    Value for money

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

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

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

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

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

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

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

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

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

  2. 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.

    5.2The 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

    5.1The 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.

    support that consists of income replacement.

    Recent amendments to the Act

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

  4. 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).

  5. 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.

  6. 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.

  7. As a result of the Amending Act, the definition of what constitutes a 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).

  8. 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.

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

  10. Schedule 2 of the Rules contains a categorised list of requested supports that are declared not to be NDIS supports. Once again, the relevant items that may apply to Ms Robinson’s application will be identified when I consider her requests later in this decision.

    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.

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

  12. Section 10(6) is as follows:

    The CEO may determine, in writing, that a support is taken to not be declared under subsection (4) in relation to a participant if:

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

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

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

    (d)the CEO is satisfied that:

    (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 bot

  13. 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

    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).

  14. 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.

  15. 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.[5]

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

  16. 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.[6]

    [6]     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.[7] 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)[8], 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,[9] 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…’

    [7] G v Minister for Home Affairs [2019] FCAFC 79 [18].

    [8] [1979] 24 ALR 577 [590].

    [9] [2018] FCA 1229.

  17. Therefore, unless the Access Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether Ms Robinson meets the reasonable and necessary criteria.

    Summary of the Changes to the Legislation

  18. I appreciate that 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 and applies to all existing requests for support including those such as Ms Robinson, that are currently before the Tribunal.

    ·Section 10(1) of the NDIS Act now allows the NDIS to classify a support in the NDIS rules as a NDIS support which can be approved if it meets the other reasonable and necessary criteria in s 34(1).

    ·Conversely s 10(4) now allows the NDIS to classify a support as ‘not a NDIS support’ in the rules.

    ·Rule 5(2) gives effect to s 10(4) by stating that if a requested support is listed in schedule 2 of those rules, then it is ‘not a NDIS support.’

    ·Section 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 ss34(1) (aa) to (e).’

  19. If a decision maker, such as myself, finds that a requested support falls within any of the 24 categories itemised in schedule 2 of 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.

  20. I note that in many cases items that are listed in schedule 2 of the rules as ‘not NDIS supports’ are identified under quite broad categories rather than as an itemised list of specific items. I have identified later in this decision several of these broad categories that Ms Robinson’s request for funding could potentially fall within.

  21. My task in this decision will be to determine if Ms Robinson’s request for meets the reasonable and necessary criteria generally and whether it falls within one or more of those broad ‘not NDIS’ categories.

  22. To find that Ms Robinson’s requested support is reasonable and necessary, I will need to find that her various requested supports meet all (emphasis added) of those 7 criteria as well as those specified in Rules 3 to 5.

    Evidence at hearing

  23. The hearing of Ms Robinson’s application took place over four days from 3 to 6 June 2025.

  24. Ms Robinson represented herself and the Agency was represented by Ms Louise Beange of Counsel.

  25. The Joint Tender Bundle of agreed documentary evidence was received by the Tribunal on 3 June 2025 and entered in evidence.

  26. Both Ms Robinson and Dr Pegum gave evidence on the first day of the hearing and Ms Alison and Ms Curdie on behalf of the Agency gave evidence on 4 June 2025.

    Ms Robinson’s evidence

  27. Before Ms Robinson gave her evidence, I confirmed what supports she wanted to have considered by the Tribunal. Ms Robinson agreed that all the supports she has requested should be considered by the Tribunal.

  28. After resolving this issue, Ms Robinson provided an affirmation concerning the evidence she would give and began answering questions from Beange.

  29. In her evidence, Ms Robinson stated as follows:

    ·She receives a significant amount of support from Dr Pegum who has been treating her for the past six years. Dr Pegum has been assisting her to develop strategies to improve her capacity for communication and better managing her emotions and levels of anxiety.

    ·She has had a number of occupational therapy assessment conducted by Ms Miller and Ms Neef and provided an outline of how those assessments were conducted and what tasks those therapists asked her to perform.

    ·She provided  a summary of her current funded supports and the types of assistance her support workers provide her, including some domestic tasks, attending medical appointments, community access and assistance with administrative tasks such as attending appointments with government agencies and completing necessary related paperwork including more recently a significant amount of assistance with preparing for this hearing.

    ·She responded to a series of questions from the Agency’s counsel, about her difficulties with communication and social interaction and how having support workers with her assisted her these areas. This was particularly the case when she was feeling stressed and when she was experiencing dysregulation.

    ·Responding to several questions from Ms Beange about her dog, Pearl, she said that since Pearl commenced the training for MindDog, she has been accompanying her to all her medical appointments including when she has attended the emergency department at her local hospital. Pearl will come into the consultation rooms and sit at her feet.

    ·Pearl will also go with her when she is accessing the community including doing her shopping and social activities.

    ·Asked if she thought having a support worker accompany her to medical appointments might be helpful, Ms Robinson said that she would only have a worker she trusts as she was concerned about her privacy.

    ·She provided a summary of the training Pearl has undertaken since being approved to accepted into the MindDog program. She has been regularly assessed including in her home and when they have been out in the community.

    ·She provided some examples of the sorts of behaviours Pearl exhibits since she began the training including going to the shops, identifying potential risks from others and her reactions when Ms Robinson becomes anxious or is becoming dysregulated,

    ·Having Pearl perform in this manner assists her with her self-confidence and the ability to better interact with those treating her and with members of the community.

    ·She was asked about how she calculated her estimate in her statement of additional six support worker hours per week if funding for Pearl was not granted, she estimated this as accessing the community with a support worker three days each week for two hours.[10]

    [10] JTB 312

    ·She responded to a series of questions concerning her request for funding of pre-prepared meals being delivered to her home and the reasons she believed she needed this support.

    ·She experiences great difficulty in preparing meals and cooking generally largely because of her sensory issues with smell and taste and inability to handle implements such as knives. Similarly, she can’t get her splints wet and can’t properly function when using gloves over her splints.  She had previously received precooked meals when she was engaged in the SASH program but that support only lasted a number of weeks

    ·She usually will eat things such as fruit and smoothies and delivered takeaway such as vegetarian fried rice. She keeps a range of frozen fruits in her freezer. She can do simple things such as make toast or heat up soups.

    ·She has tried frozen meals from the supermarket but does not like how they taste.

    ·While in the past she has had support workers help with preparing meals in her home, however she had the same sensory issues with the smells and noise of someone using her kitchen. She does not want her current support workers to do this as most likely she would not eat a meal they prepared, and she does not like wasting food.

    ·She recently burnt her hand when trying to use the stove and now has a very limited capacity to use the stove.

    ·Ms Robinson also responded to questions regarding her request for the provision and installation of a dishwasher and air conditioner.

    ·She needs a dishwasher as she finds it very difficult to do any washing up due to her physical impairments and difficulty grasping or carrying plates cups and cutlery.

    ·On better days she may be able to clean some small number of plates or cups otherwise she may ask a support worker to do it for her, however she finds this humiliating and embarrassing. She also finds it embarrassing if someone comes to her front door and who could see the washing up piled by the sink.

    ·She requires the air conditioning unit as she has trouble regulating her temperature. She said that having fans makes little or no difference. She has a limited capacity to use icepacks as the freezer in her fridge is very small.

    ·She applied to her housing provider Community Housing to fund the air conditioner and dishwasher however it said that it would not be able to fund them. The application was prepared by Michelle Levy from Mission Australia and the housing provider sent an occupational therapist to inspect her home

    ·Responding to her request for funding for short term accommodation, she said she would like this so she could meet new people and do things she would not otherwise do. It would also enable her to visit her daughter more often and would be useful when her primary support workers are on leave.

    ·Finally, Ms Miller gave some evidence about Ms Robinson’s request for an air conditioner. She said that the housing provider ended up paying for a ramp into Ms Robinson’s home  and apologised for not agreeing to the air conditioner stating that they did not have the funding to meet that request.

    Dr Pegum’s evidence

  1. Therefore, an animal will only be viewed under the Transitional Rules as an ‘assistance animal’ upon receiving accreditation in the manner outlined in paragraphs 258 and 261 above.

  2. I note that Ms Robinson in her submission refers to what constitutes an ‘eligible assistance animal’ and that her understanding of the definition of “eligible” is meeting the criteria and being capable of satisfying appropriate conditions. The fact that Pearl has been accepted and is progressing through the MindDog training is therefore evidence of her ‘Eligibility.’ 

  3. I respectfully disagree with that interpretation. What the clear wording of section 4 of the Transitional Rules indicates is that an animal can become an eligible assistance animal if it complies with any one of the four options (a) through (d) recorded in paragraph 258 above.

  4. I have accepted that the most relevant subsection to Pearl’s current status is subsection (a), however it’s possible to become eligible if the animal meets the requirements of subsection (d) namely:

    trained to assist a person with a disability to alleviate the effect of the disability and to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

  5. Again, I note that Pearl is still engaged in the training to assist a person with a disability to alleviate the effect of the disability and to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

  6. I have already indicated that Pearl will only have been found to have met the standards of hygiene and behaviour that are appropriate for an animal in a public place once she has successfully completed the Public Access Test, which has not yet taken place.

  7. Therefore, she will only be considered to be an eligible assistance animal once the full training including the Public Access Test has been completed.

  8. For these reasons I consider that Pearl, at this time, is not an eligible assistance animal.

  9. Having made this finding, I am not required to assess whether she meets the section 34(1) criteria.

  10. Therefore, this requested support is not approved.

    Conclusion

  11. I note that the Agency has already agreed to increase Ms Robinson’s psychology sessions to 26 hours per annum and, as such, should be included in my orders.

  12. For the reasons set out above, the Tribunal is satisfied that the correct and preferable decision in this case is to set aside the decision under review and to direct that the following supports meet the requirements of a reasonable and necessary support as defined in the NDIS Act:

    1)24 hours per annum of exercise physiology therapy sessions as well as a further 2 hours for report writing.

    2)26 hours of psychology sessions per annum.

    Decision

    The Tribunal remits this matter to the Respondent for reconsideration with a direction stating that the following additional supports are to be approved in the Applicant’s NDIS plan:

    i.26 hours of exercise physiology per annum.

    ii.26 hours of psychology per annum.

    The supports for psychology will replace the existing psychology support in the Applicant’s NDIS Plan.

I certify that the preceding 231
(two hundred and thirty-one)
paragraphs are a true copy of the
reasons for the decision herein
of General Member A. Williams

…..........................[sgd]...........................................

Dated: 22 July 2025

Dates of Hearing: 

3rd, 4th and 5th June 2025

Solicitor for the Applicant:

Self-represented

Solicitor for the Respondent:

Moray and Agnew Lawyers

Counsel for the Respondent: 

Ms Louise Beange

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McGarrigle v National Disability Insurance Agency [2017] FCA 308
NG (Migration) [2019] AATA 4025
Minister for Home Affairs v G [2019] FCAFC 79