RZVJ and National Disability Insurance Agency - [2024] AATA 3508

RZVJ and National Disability Insurance Agency [2024] AATA 3508 (27 September 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/4738
Re:RZVJ
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Deputy President Mischin
Date:27 September 2024
Place:Perth

The decision under review, being the decision of the National Disability Insurance Agency made on 8 June 2022 under section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) as remade on 10 November 2023 following remittal pursuant to section 42D of the Administrative Appeal Tribunal Act 1975 (Cth), to refuse connection to mains electricity and gyprock lining to the Applicant’s storage shed, is affirmed.
.....................[Sgd]...................................................
The Hon. Michael Mischin, Deputy President
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – mains electricity and gyprock lining to storage shed – decision to refuse affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 37, 42D
National Disability Insurance Scheme Act 2023 (Cth) ss 3, 4, 31, 32, 33, 34, 34(1), 34(2), 35, 100, 100(6)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) rr 1.1, 1.2, 1.3, 3.1, 3.1(a), 3.1(b), 3.1(c), 3.1(f), 3.2, 3.3, 3.4, 3.4(a), 3.4(a)(i), 3.4(a)(ii)), 3.4(a)(iii), 3.4(a)(iv), 5.1, 5.1(a), 5.2, 7.1, 7.19
CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Madelaine and National Disability Insurance Agency [2019] AATA 4025
SECONDARY MATERIALS601
NDIS House modifications (guideline dated 11 October 2022)
NDIS Reasonable and Necessary Supports (guideline dated 6 October 2023)
REASONS FOR DECISION
Deputy President the Hon. Michael Mischin
27 September 2024
BACKGROUND AND ISSUES

The Applicant is an 11-year-old boy, [redacted], residing with his mother in community housing in a suburb of Perth. He has been diagnosed with severe, level 3, autism spectrum disorder, exhibits hyperactivity, and has high sensory needs. He is non-verbal, has learning and fine motor difficulties, and requires very substantial support. Physical conditions include Esotropia, dry skin, and a thermoregulatory disorder which adversely affects his daily activities and contributes to emotional dysregulation.[1] He is a participant in the National Disability Insurance Scheme (NDIS or Scheme).
[1] Exhibit R1 Document 1.1 T1K 69.
The Applicant is represented by his mother who, for convenience, I shall refer to as ‘Ms J’. Ms J cares full time for the Applicant. She is his only informal support and home-schools him.
The Applicant, by way of Ms J, sought review of a decision made pursuant to section 100 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act), by a delegate of the Chief Executive Officer of the National Disability Insurance Agency (the Respondent or Agency) on 8 June 2022, which affirmed an earlier decision refusing to include funding for (among other things) a storage shed.
The application to the Tribunal for review and supporting documents were lodged on the Applicant’s behalf on 8 June 2022. The matter has since been remitted to the Respondent for reconsideration on two occasions, the last being on 25 October 2023 which resulted in a further Statement of Participant Supports of 10 November 2023. Since then, following negotiations between the parties, the Respondent has agreed to fund several further supports, including:[2]
Funding for the cost of a 4.5m x 3m storage shed to be placed on existing concrete slab, including cost of installation, development application and skip hire, but excluding cost of electricity to the shed and insulation of the shed …
[2] Exhibit R1 Document 2.1 569-570.
The Applicant has received quotes for the shed, which have been accepted by the Respondent. They, in fact, include provision for a level of insulation. However, Ms J contends, on behalf of the Applicant, that the interior of the shed should be lined with gyprock, and it is that and the funding of a connection to mains electricity that remain in contention.[3]
[3] Exhibit R1 Document 3.7, Joint Tender Bundle 683 at [4] and [6].
THE HEARING AND AVAILABLE EVIDENCE
The application was heard by the Tribunal on 9 and 18 July 2024.
The Tribunal had before it a Joint Tender Bundle[4] of documents, comprised of the ‘T-Documents’ filed by the Respondent pursuant to its obligations under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act);[5] extracts of the NDIS Act;[6] Rules[7] and Operational Guidelines;[8] and a variety of correspondence, reports, submissions and copies of Tribunal orders; comprising 104 documents totalling 885 pages.
[4] Exhibit R1.
[5] Exhibit R1 Document 1.1 T1 to T48, Joint Tender Bundle 1-566.
[6] Exhibit R1 Document 1.1 T46, Joint Tender Bundle 475-477.
[7] Exhibit R1 Document 1.1 T47, Joint Tender Bundle 478-492.
[8] Exhibit R1 Document 1.1 T48, Joint Tender Bundle 493-566.
Helpfully, the Respondent’s counsel advised at the commencement of the hearing that with the narrowing of matters in dispute since the lodging of the application for review and over the course of the proceedings, these could be distilled down to 13 relevant documents or groups of documents, being:[9]
[9] Transcript 7.
(a)The Respondent’s Statement of Facts, Issues and Contentions dated 7 December 2023;[10]
[10] Exhibit R1 Document 2.1, Joint Tender Bundle 569-583; Transcript 9.
(b)The Applicant’s Amended Statement of Facts, Issues and Contentions dated 19 June 2024;[11]
[11] Exhibit R1 Document 3.7, Joint Tender Bundle 683-701; Transcript 9.
(c)Twelve description and specification sheets for products sold by the hardware merchant Bunnings, undated;[12]
[12] Exhibit R1 Documents 2.2 to 2.13, Joint Tender Bundle 584-615; Transcript 9.
(d)Photographs of the Applicant’s residence[13] and Applicant’s therapy and assistive equipment taken by Ms J, undated;[14]
(e)NDIS General Assistive Technology Assessment Template Form for a shed, completed by Occupational Therapist Jacinta Gabbedy on 6 September 2021 (AT Assessment);[15]
(f)A letter addressed ‘To Whom it may concern’ from Ability WA Senior Occupational Therapist Jacinta Gabbedy dated 21 July 2023 (the July letter);[16]
(g)An Affidavit of Ms J made 6 April 2024, and two annexures;[17]
(h)An Affidavit of Jeremy Robert Douglas of Action Sheds made 18 June 2024, and an annexure;[18]
(i)An Assembly and Care Manual for an Axiom Indoor/Outdoor Mobility Pushchair, undated;[19]
(j)An RAC Building, Contents and Personal Valuables Insurance Combined Product Disclosure Statement and Financial Services Guide (RAC Insurance Disclosure Statement), effective from 25 February 2021;[20]
(k)The Applicant’s most recent NDIS Plan and Statement of Supports dated 21 June 2024;[21]
(l)The NDIS Home modifications Operational Guideline (Home modifications Guideline) dated 11 October 2022;[22]
(m)The NDIS Reasonable and Necessary Supports Operational Guideline (Supports Guideline) dated 6 October 2023;[23]
[13] Exhibit R1 Document 1.1 T28, Joint Tender Bundle 383-392; Transcript 9-10.
[14] Exhibit R1 Document 1.1 T35 to T39, Joint Tender Bundle 419-425; Transcript 9-10.
[15] Exhibit R1 Document 1.1 T1M, Joint Tender Bundle 97-127; Transcript 10-11. Respondent’s counsel advised that the Form commenced at page 101, but T1M commences with some preliminary Form information at 97.
[16] Exhibit R1 Document 3.2, Joint Tender Bundle 618-626; Transcript 11, 15.
[17] Exhibit R1 Document 3.5, Joint Tender Bundle 652-668; Transcript 11.
[18] Exhibit R1 Document 3.6, Joint Tender Bundle 669-682; Transcript 11.
[19] Exhibit R1 Document 3.8, Joint Tender Bundle 702-711; Transcript 12-13, 16.
[20] Exhibit R1 Document 3.9, Joint Tender Bundle 712-763; Transcript 12, 25.
[21] Exhibit R1 Document 4.2, Joint Tender Bundle 789-814; Transcript 12.
[22] Exhibit R1 Document 5.1, Joint Tender Bundle 816-840; Transcript 12.
[23] Exhibit R1 Document 5.2, Joint Tender Bundle 841-885; Transcript 12.
Additional documents which Ms J considered relevant to the Applicant’s case were:[24]
(a)An email from Action Sheds dated 16 January 2023;[25]
(b)A letter addressed ‘To Whom It May Concern’ from Developmental Paediatrician Dr John Wray dated 24 August 2021;[26]
(c)An NDIS Functional Assessment by Ability WA Senior Occupational Therapist Jacinta Gabbedy dated 18 March 2022;[27]
(d)Tax Invoice and Packing Slip from Motum for the Applicant’s Endeavour Stroller, dated 2 July 2020;[28]
(e)A letter addressed ‘To Whom It May Concern’ from Ability WA Physiotherapist Liam Carter dated 21 February 2022;[29]
(f)Two photographs of the Applicant’s Endeavour Stroller, undated.[30]
[24] An email from Action Sheds, dated 27 September 2023 and later provided by the Applicant, was the subject of submissions regarding its admission into evidence. It was marked for identification subject to further submissions at a relevant time as MFI A1; Transcript 25-31.
[25] Exhibit R1 Document 3.1, Joint Tender Bundle 616-617; Transcript 17-18.
[26] Exhibit R1 Document 1.1 T1K, Joint Tender Bundle 63; Transcript 17-18.
[27] Exhibit R1 Document 1.1 T1S, Joint Tender Bundle 153-173; Transcript 18.
[28] Exhibit R1 Document 1.1 T5, Joint Tender Bundle 326-328; Transcript 20-21.
[29] Exhibit R1 Document 1.1 T1R, Joint Tender Bundle 151-152; Transcript 23.
[30] Exhibit R1 Document 1.1 T39, Joint Tender Bundle 423-424; Transcript 23-25.
In addition to Ms J, the following witnesses were called for the Applicant, gave evidence at the hearing, and were cross-examined:
(a)Ability WA Senior Occupational Therapist Jacinta Gabbedy;[31]
(b)Action Sheds Operations Manager Jeremy Robert Douglas.[32]
[31] Transcript 195-234.
[32] Transcript 236-257.
The Tribunal also had the benefit of written closing submissions from the Respondent[33] and the Applicant respectively.[34]
[33] Respondent’s Final Submissions dated 6 August 2024.
[34] The Applicant’s closing submissions were due by 3 September 2024. On 28 August the Applicant’s representative sought, and was granted, an extension to 17 September. On 14 September Ms J sought a further extension to 8 October. An extension was granted to 20 September, and they were received by the Tribunal shortly before close of business that day.
I have considered the relevant factual and expert evidence before the Tribunal and refer to parts of the same in these reasons.
Until shortly before the listed date for the hearing of 9 July 2024, the Applicant was represented pro bono by Corrs Chambers Westgarth. On Monday 1 July, the Applicant’s lawyers confirmed with the Tribunal that the Applicant wished to have the hearing proceed as scheduled on Tuesday 9 July. On Friday 5 July, Ms J wrote to the Tribunal asking that the hearing date be vacated and advising that she had cancelled her witnesses. The Tribunal called on the parties to hear the application for adjournment on the afternoon of Monday 8 July. On the morning of 8 July, the Tribunal received notice via email from Corrs Chambers Westgarth that they had ceased to act for the Applicant. At the adjournment hearing, Ms J confirmed with the Tribunal that the Applicant was unrepresented because her lawyers had told her that they could no longer act.
It emerged at the start of this adjournment hearing that although the Respondent had agreed to fund a storage shed, Ms J refused to sign a contract for its construction to commence. It appears that she had decided that, because the Respondent had not explicitly agreed to cover any and all cost overruns, it would be an ‘open-ended’ contract and be to her detriment by exposing her to being sued; this, it appears, was notwithstanding the advice and reassurance of her lawyers, whose advice she rejected as amounting to their trying to ‘force’ her to sign the contract, and she considered coercion and unlawful.[35] In the circumstances, it seems, her lawyers informed her that they could no longer accept instructions and act for her and the Applicant.
[35] Transcript 5-7.
The Tribunal declined to adjourn the hearing and vacate the hearing dates. The application had been on foot for a considerable time and the hearing had been scheduled for dates convenient to both parties. The Tribunal had before it a considerable amount of evidence and detailed submissions, including evidence and submissions filed on behalf of the Applicant while he was still represented.
Accordingly, the substantive hearing proceeded without the Applicant being legally represented. Ms J represented him. The Tribunal, conscious of her not being learned in the law and processes of a review, allowed considerable latitude to Ms J, as did counsel for the Respondent.
Following the close of evidence on 18 July, both parties asked for the opportunity to file written closing submissions.[36] It was explained to Ms J that a closing submission was an opportunity for her to comment on the evidence that had been received and to respond to the Respondent’s submissions, not to submit further evidence. She indicated that she understood.[37]
[36] Transcript 260.
[37] Transcript 263-264.
However, on 22 July 2024 Ms J wrote to the Tribunal submitting responses she had received to correspondence she had sent to WA Electrical Inspectors, seeking their opinion regarding Residual Current Devices, and to Ability WA asking it to offer an opinion on what constituted restrictive practices. [38] This, it seems, was calculated to supplement contentions she had raised when under cross-examination during the hearing, or to cover difficulties that had been exposed under cross-examination.
[38] Email from Ms J to Tribunal Registry dated 22 July 2024.
The Respondent has objected to the receipt of the additional material in evidence on the basis that the evidence is not ‘fresh’ or ‘new’, it being reasonably available before the hearing; that if it was thought to be important, it could have been arranged by her legal advisors before they discontinued acting for her; that it was sought and received after the receipt of evidence had concluded and notwithstanding it being made plain that the receipt of evidence had ended; that it is untested; and that the Respondent has not had the opportunity to test and answer it.[39]
[39] Email from the Respondent to Tribunal Registry dated 30 July 2024.
I accept the Respondent’s objection. As noted, the Applicant was legally represented until just before the hearing. Statements of Fact, Issues and Contentions had been filed on her behalf and her case prepared. The matters about which she now seeks to lead additional evidence arose during cross-examination and, in the case of one issue, her having added it to her arguments at a late stage. Following the release of her witness Mr Douglas on 18 July, Ms J was asked whether there was to be any further evidence presented, then or later, to which she responded, ‘No. Other than my closing statement, I don’t have anything else’.[40] There has been no request to re-open the Applicant’s case so as to call witnesses and expose them to cross-examination.
[40] Transcript 257-258.
The material Ms J has forwarded to the Tribunal, rather than simply resolve a question on which there was doubt, raises as many questions as it purports to answer. I have not taken the further material into consideration. The material does not change my conclusions regarding the matters in issue.[41]
[41] I add for completeness that the Applicant’s lengthy closing submissions also referred to this and other material not presented to the Tribunal during the hearing, as well as making disparaging – and unwarranted – personal attacks against the Respondent’s legal representatives.
LEGISLATIVE FRAMEWORK
I have had regard to the objects and general principles informing the application of the NDIS Act and the Scheme. Section 3 provides, so far as material:
(1)       The objects of this Act are to:
(a)…
(b)provide for the National Disability Insurance Scheme in Australia; and
(c)support the independence and social and economic participation of people with disability; and
(d)provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme; and
(e)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f)…
(g)promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
(ga)protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and
(h)…
(i)…
(2)       These objects are to be achieved by:
(a)…
(b)adopting an insurance‑based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability; and
(c)...
(3)       In giving effect to the objects of the Act, regard is to be had to:
(b)the need to ensure the financial sustainability of the National Disability Insurance Scheme; and
(c)…
(d)the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.
Among the 17 ‘General principles guiding actions under this Act’ in section 4 appear:
(12)The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.
…
(17)It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to the need to ensure the financial sustainability of the National Disability Insurance Scheme.
Section 31 of the NDIS Act sets out the principles relating to plans.
Section 33 of the NDIS Act prescribes the matters that must be included in a participant’s plan. It provides, materially:
(1)A participant’s plan must include a statement (the participant’s statement of goals and aspirations) prepared by the participant that specifies:
(a)the goals, objectives and aspirations of the participant; and
(b)the environmental and personal context of the participant’s living, including the participant’s:
(i)living arrangements; and
(ii)informal community supports and other community supports; and
(iii)social and economic participation.
(2)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
…
(3)The supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise.
…
(5)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
…
…
[Original emphasis.]

Section 34 of the NDIS Act deals with ‘Reasonable and necessary supports’, and the criteria of which the CEO must be satisfied with respect to the provision or funding of a support, as follows:
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(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 most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i)as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(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)(a) to (f).
Section 35 of the NDIS Act empowers the making of rules regarding statements of participant supports, materially:
(1)The National Disability Insurance Scheme rules may make provision in connection with the funding or provision of reasonable and necessary supports or general supports, including but not limited to prescribing:
(a)methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding, the reasonable and necessary supports or general supports that will be funded or provided under the National Disability Insurance Scheme; and
(b)reasonable and necessary supports or general supports that will not be funded or provided under the National Disability Insurance Scheme; and
(c)reasonable and necessary supports or general supports that will or will not be funded or provided under the National Disability Insurance Scheme for prescribed participants.
(2)The National Disability Insurance Scheme rules referred to in subsection (1) may relate to the manner in which supports are to be funded or provided and by whom supports are to be provided.
…
The term ‘reasonable and necessary’ is not defined in the NDIS Act.
However, rules have been made pursuant to section 34(2) prescribing that to which a decision-maker must have regard in deciding whether they are satisfied that the criteria under section 34(1) have been met in respect of a requested support.
In this case, the relevant rules to which the Tribunal has been directed are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Supports Rules).[42]
[42] Exhibit R1 Document 1.1 T47, Joint Tender Bundle 478-492.
The Supports Rules materially state as follows:[43]
[43] Exhibit R1 Document 1.1 T47, Joint Tender Bundle 479.
1.1These Rules are about assessment and determination of the reasonable and necessary supports that will be funded and the general supports that will be provided for participants under the NDIS.
1.2The Act sets out a number of objects for the NDIS. The objects that are particularly relevant to these Rules are the following:
(a)supporting the independence and social and economic participation of people with disability;
(b)providing reasonable and necessary supports, including early intervention supports, for participants in the NDIS launch;
(c)enabling people with disability to exercise choice and control in pursuit of their goals and the planning and delivery of their supports.
1.3In giving effect to these objects, regard is to be had to the need to ensure the financial sustainability of the NDIS.
Part 3 of the Supports Rules informs the CEO, in greater detail than section 34 of the NDIS Act, of matters to which the CEO is to have regard in assessing proposed supports, relevantly:[44]
[44] Exhibit R1 Document 1.1 T47, Joint Tender Bundle 481-482.
Value for money
3.1In 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:
(i)the comparative cost of purchasing or leasing the equipment or modifications; and
(ii)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
3.2In 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)…
(b)the lived experience of the participant or their carers; or
(c)…
…
Reasonable family, carer and other support
3.4In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:
(a)for a participant who is a child:
(i)that it is normal for parents to provide substantial care and support for children; and
(ii)whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age; and
(iii)the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and
(iv)whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing;
…
(c)for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.
Supports appropriately funded or provided through the NDIS
3.5Schedule 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).
…
Part 5 of the Supports Rules sets out the general criteria for supports, and those that will not be funded or provided. Relevantly:[45]
[45] Exhibit R1 Document 1.1 T47, Joint Tender Bundle 485.
General criteria for supports
5.1A 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.
The reference in rule 3.5 to Schedule 1 relevantly refers to the following:[46]
Housing and community infrastructure
7.19 The NDIS will be responsible for:
(a)…
(b)…
(c)home modifications for accessibility for a person in legacy public and community housing dwellings on a case-by-case basis but not to the extent that it would compromise the responsibility of housing authorities to develop, maintain and refurbish stock that meets the needs of people with disability; and
(d)…
[46] Exhibit R1 Document 1.1 T47, Joint Tender Bundle 490-491.
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.[47]
[47] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; Madelaine and National Disability Insurance Agency [2019] AATA 4025.
The relevant operational guidelines at the time the decision under review was made, and to which the Tribunal has been referred as applicable to the task before it, are the:
(a)NDIS Home modifications (guideline dated 11 October 2022) (Home Modifications Guideline);[48] and
(b)NDIS Reasonable and Necessary Supports (guideline dated 6 October 2023) (Supports Guideline).[49]
[48] Exhibit R1 Document 5.1, Joint Tender Bundle 816-840
[49] Exhibit R1 Document 5.2, Joint Tender Bundle 841-885.
The parties referred the Tribunal to the following passages of the Home Modifications Guideline:
Home modifications are changes to your home that help you manage your disability. These changes can be minor or more complex. They can help you safely access or move around your home. They can also help make daily tasks easier.[50]
[50] Exhibit R1 Document 5.1 1, Joint Tender Bundle 816.
…
You may need home modifications if you:
·have safety concerns or difficulty moving around your home …
·can’t use the rooms you need to use in your home …
·need changes to your home so your carers can support you safely.[51]
[51] Exhibit R1 Document 5.1 2, Joint Tender Bundle 817.
…
What if you live in community or public housing?[52]
[52] Exhibit R1 Document 5.1 6-7, Joint Tender Bundle 821-822.
If you need modifications to your community or public housing, you should first contact your state or territory public housing authority. They are responsible for making reasonable adjustments.
For example, your public housing authority might install lever taps or grab rails. Or they might improve general access to your home with a simple access ramp.
If you live in public housing and you need highly specialised or high cost modifications, we might be able to fund them. To help us work out if the modifications are most appropriately funded by us,[i] first we consider if your public housing provider has another more suitable home available for you. Or if they can help you find another home with a different community housing authority.
…
Is the home modification value for money?
The home modifications we fund need to be value for money compared with the benefits for you, and compared with other supports that would achieve the same outcome.
We need to think about:
…
·how long you plan on staying in your home, and if the home modification is good value for this length of time …[53]
[53] Exhibit R1 Document 5.1 7, Joint Tender Bundle 822.
…
Does it matter how long you plan to stay in your current home or if you are renting?[54]
We’ll consider funding home modifications whether you own or rent your home. We need to know how long you plan to stay in your home, and whether you rent or own it. This will help us work out if the modification is likely to be value for money.
For example, minor home modifications are likely to be value for money if you plan to remain in your current home or have a lease for at least 12 months.
Complex home modifications are likely to be value for money If you plan to remain in your current home or have a lease for at least 3 years.
…
We can only fund home modifications if they relate to your disability. We’ll look at how the home modification will help you do things you find difficult because of your disability. Or if it will make it less tiring for you to do things, or mean you need less help from someone else.[55]
THE EVIDENCE
[54] Exhibit R1 Document 5.1 8, Joint Tender Bundle 823.
[55] Exhibit R1 Document 5.1 4, Joint Tender Bundle 819.
Evidence of Ms J regarding the Applicant’s circumstances
Ms J gave evidence and was cross-examined by Ms Flinn, Counsel for the Respondent.[56] The Tribunal also had before it Ms J’s affidavit made on 6 April 2024 which, along with other documents, she read out and expanded upon.[57]
[56] Transcript 79-127, 141-189.
[57] Exhibit R1 Document 3.5, Joint Tender Bundle 652-664.
Ms J’s evidence-in-chief was lengthy and drew on several documents that had been filed over the course of the application for review, which she read. Much of her evidence was repetitive, making the same observations many times over. Ms J presented a number of arguments to support the necessity for electricity and gyprock lining.
The Applicant’s living arrangements
Ms J testified that she and her Applicant son lived in Ferndale.[58] She is his full-time career and homeschools him as a registered home educator.[59] Their home is a Western Australian Department of Communities property, a small three-bedroom, one bathroom house of 80 m². They have been living there for three years. Ms J described it as their ‘… forever home, unlike a private rental where you may be asked to leave’.[60] They are there day and night, and it is the Applicant’s home school.
[58] Transcript 46.
[59] Transcript 46.
[60] Transcript 53.
The house has no storage space by way of walk-in wardrobes or cupboards. It is so small that there is insufficient room in it for the storage of the Applicant’s equipment. Ms J and the Applicant share a bed, as what would be his bedroom is used for storage.[61] They have insufficient room for dining furniture, as the space is required for the storage and use of the Applicant’s therapy and assistive equipment. Ms J pays for off-site storage, which holds dining and bedroom furniture and some of the Applicant’s equipment.[62]
[61] Transcript 54.
[62] Transcript 54.
Photographs of the interior of the house reveal considerable clutter, with what appear to be unstable piles of boxes, cartons, plastic storage tubs, linen, toys and other items filling the rooms, in the hallway, and even the bathroom and bathtub.[63] Ms J advised that this was the result of having moved from a four bedroom, two bathroom house, to their current one without shelving, cupboards and walk-in wardrobes.[64] She asserted that there is no room in the house to install shelving,[65] but confirmed that the third bedroom had five cupboards, and cabinets, to store the Applicant’s homeschool resources.[66] Ms J said that the Applicant’s equipment is currently being stored in his bedroom which he cannot occupy, and when the shed is erected it will be transferred into the shed. The third bedroom will store therapy equipment and homeschool items.[67] The Applicant will be able to undertake his therapy with larger pieces of equipment in either the third bedroom or the small lounge area.[68] She proposes to move into the house from off-site storage her dining table and a couple of chairs.[69]
[63] Exhibit R1 Document 1.1 T28, Joint Tender Bundle 390-393; Exhibit R1 Document 1.1 T1M, Joint Tender Bundle 106, 107; Transcript 100, 105, 106. The photographs were taken about the time of the application to the Tribunal for a shed in mid-2022, but according to Ms J ‘nothing’s changed in the house’: Transcript 104.
[64] Transcript 100.
[65] Transcript 101.
[66] Transcript 101-102.
[67] Transcript 101.
[68] Transcript 102-103.
[69] Transcript 107.
The Applicant will work at his desk in the third bedroom for therapy requiring fine motor skills, but substantial pieces of equipment that will be stored in the shed will be moved into the lounge room for use.[70]
[70] Transcript 107.
The Applicant’s disabilities
The Applicant’s disabilities affect all aspects of his life, and he exhibits challenging behaviours. He requires constant support, including assistance with toileting, bathing, personal hygiene, eating, dressing and outside activities.[71] He urinates and defecates in his bed three times a day, requiring his sheets to be changed.[72]
[71] Transcript 47; Exhibit R1 Document 3.2 Report of Occupational Therapist Jacinta Gabbedy dated 21 July 2023, Joint Tender Bundle 618.
[72] Transcript 47.
The Applicant is very mobile and has good gross motor skills. He can walk very fast, run, and likes to climb. However, he doesn’t walk straight and stumbles and will suddenly veer off course.[73] He requires someone to be with him, or very near him, at all times. He can act impulsively having no conception of dangers, and may run across a road without looking, or run into strangers.[74] He is ‘inquisitive’ and ‘adventurous’.[75]
[73] Transcript 48.
[74] Transcript 47.
[75] Transcript 60.
The Applicant’s thermosensory disorder affects his emotional regulation and his behaviour.[76] When the Applicant dysregulates, he can engage in harmful behaviours. Ms J described an incident at the Perth Convention Centre when he had an episode triggered by noise and bright lights, resulting in him biting himself, screaming, and running at her to bite her face and arms. When agitated he may pull hair, scratch, and bite; I understand this to be to himself and others.[77]
[76] Transcript 47.
[77] Transcript 48.
The shed
The shed the Respondent has agreed to fund will store the equipment the Applicant uses for therapy and to meet his mobility and sensory needs. These items include a:[78]
[78] Exhibit R1 Document 3.2 Report of Occupational Therapist Jacinta Gabbedy dated 21 July 2023; Joint Tender Bundle 621-622.
(a)Large hamster wheel (footprint approximately 2.0m by 2.0m);[79]
[79] Described as a ‘revolving play tunnel’ imported from China costing ‘about $6,000’, which the Applicant sits inside and it ‘spins around like a washing machine’: Transcript 50.
(b)Swinging chair (requires clearance space of approximately 2.0m by 2.0m);
(c)Rocker (approximately 2.0m by 0.40m);
(d)Tunnel (approximately 3.0m by 0.5m);
(e)Climbing ladder (approximately 2.0m by 2.0m by clearance at the base for matting);
(f)Mini trampoline (approximately 1.0m diameter and allowing 2.0m by 2.0m minimum clearance around trampoline for safety);
(g)Balancing board/beam (has footprint of approximately 3.0m by 1.0m);
(h)Large peanut and gym balls on matting (approximately 0.95m diameter; 0.5m by 1.0m (requires approximately 2.5m by 2.0m space));
(i)Scooter board (requires minimum approximately 6.0m by 1.0m length of floor area for use);
(j)Modified bike (approximately 0.5m by 1.5m);
(k)Small table and chairs for table-based therapy activities; and
(l)Specialised Endeavour stroller (1.55m by 0.61m by 1.09m) – funded by NDIS.

Ms J advised that the shed will also be used to store swimming aids, a sensory jumping castle, large safety play mats, stroller accessories, and toys. She explained that some of the equipment is expensive. The stroller funded by the NDIS cost $6,128.00, the hamster wheel and rolling mat $3,484.03, a ‘teacups’ indoor play set $4,466.11,[80] and the modified bike was worth about $3,500.00.
[80] A pair of ‘teacup’-like chairs that revolve, as a sensory play item and purchased with a grant from the Variety Club of WA: Exhibit R1 Document 3.2 Report of Occupational Therapist Jacinta Gabbedy dated 21 July 2023, Joint Tender Bundle 622.
Ms J described the shed as going to be an ‘extension of our home’, ‘another room’, ‘an additional room’, and ‘it should be a room we have in the house which we don’t have’.[81] As such it needs lighting and insulation. The Applicant is inquisitive and so will be in and out of the shed while she may be doing chores.[82]
[81] Transcript 53.
[82] Transcript 60.
The use to which the shed was to be put and, so, the need for the Applicant to have access to it and the fit out that could reasonably be expected of a storage shed, was explored by Counsel for the Respondent; albeit with some difficulty as Ms J would, in preference to answering questions, tend to argue that they were irrelevant as the shed had already been agreed and the only issues were electricity and gyprock.
Ms J, in her affidavit, averred that in mid-2022 she had spoken to an officer of the City of Canning during which she asked about ‘having the shed approved as a living space’, but was told that she would need numerous planning permissions which she felt were ‘onerous’. At the time, she had in mind a larger, 8.0m by 4.0m, shed. Accordingly, she no longer sought to have the NDIS-approved shed built so that it can be used as an additional living space.[83] When asked about this, she responded by saying that the Applicant would not be using it to sleep in, but ‘it is expected that we are allowed to go into our shed because it’s what people do … because you go into your shed and move things around or use it, doesn’t mean you’re going to sleep in it or use it use it as a living space. If [the Applicant] is going to go in there to play, nobody can stop him. It’s his shed’.[84]
[83] Exhibit R1 Document 3.5 paragraph 40, Joint Tender Bundle 659-660 at 659.
[84] Transcript 83.
Ms J acknowledged that the Home Modifications Guideline advised that the Respondent generally did not fund modifications that make a participant’s house bigger.[85] However, she considered that the Respondent also ‘generally’ did not fund sheds, and cited the COAG ‘Principles to Determine the Responsibilities of the NDIS and Other Service Systems’ of 27 November 2015 where, under ‘Housing and Community Infrastructure and Reasonable and Necessary NDIS Supports for Eligible People’, appears what she seemed to regard as an obligation on the Respondent to provide:[86]
Reasonable and necessary home modifications to private dwellings and on a case by case basis in social housing where the modifications are additional to reasonable adjustment and specific to the impact of a participant’s impairment/s on their functional capacity.
[85] Exhibit R1 Document 5.1, Joint Tender Bundle 815.
[86] Exhibit R1 Document 1.1 T4 19, Joint Tender Bundle 312. Ms J’s appeal to COAG agreements, repeated in the course of the Applicant’s Final Submissions, is misconceived. Agreements that may have been struck between the Commonwealth and State and Territory governments cannot impose on the Respondent greater obligations than have been prescribed by the legislation establishing it and governing its operations. There is no ambiguity that requires the Tribunal to resort to such secondary material for clarification of that legislation.
Nevertheless, after some prevarication, she seemed to confirm that the purpose for which the Respondent funded the shed was to store therapy and mobility equipment, rather than to expand the living space in her home.[87]
[87] Transcript 81.
Ms J said that the Applicant needs access to his equipment day and night, for therapy and to regulate and calm him. They would be accessing the shed many times each day.[88] Lighting will be necessary to avoid tripping accidents and things falling on their heads.[89] She said it can be dark at 5:00pm and even on cloudy days.[90] It is a ‘human right’ to have light in it.[91]
[88] Transcript 55.
[89] Transcript 61.
[90] Transcript 61.
[91] Transcript 61. As to the last proposition, which Ms J repeated on several occasions including in the Applicant’s Final Submissions, whether it is a ‘human right’ for the Applicant and his mother to have mains-powered electric lighting in a storage shed does not answer the question of who, as a matter of law, is obliged to provide and pay for it. The Respondent can only be responsible for providing or funding supports in accordance with its legal remit as prescribed by the NDIA Act, Rules, and its guidelines.
Ms J also requires access to the shed at night to return items to the shed, as leaving the return of items until the next day would create a ‘tripping hazard’ in the house the next morning, and she would not have time to do so anyway.[92]
[92] Transcript 114.
As there is not much room in the small house, they use the large backyard many times a day, and at times at night in fair weather, and accordingly would need to withdraw equipment from the shed for use.
Ms J was asked about the equipment that she proposed to store on shelves in the shed. She advised that the shed was ‘tiny’ but ‘everything’ referred to in her affidavit would fit on shelves except for the hamster wheel, the ‘teacups’, the swinging chair, and the bike.[93] She had in mind 50cm deep shelves, but hadn’t decided yet on how many, or whether on two or three walls.[94] She would be able to fold some of the equipment proposed to be stored so that it can fit onto the shelves.[95] Other items that could be stored on shelves include swimming aids, sensory jumping castle, large safety play mats, and toys[96] and the peanut ball.[97]
[93] Transcript 87.
[94] Transcript 87.
[95] Transcript 99.
[96] Transcript 99; Exhibit R1 Document 3.5, Joint Tender Bundle 656 at paragraph 19.
[97] Transcript 105.
While affirming that the shed would be used for the purposes of storing and retrieving equipment, she also advised that the Applicant would enter and play in it at times:[98]
Yes, [the Applicant] will go in there and play because he’s a child. He will climb on the – he will climb on those shelving because that’s what he does. He’s done it in other garages and other houses where we had – were lucky enough to have big garages with big shelving spaces. It’s fabulous. He climbed on them. He climbs on the fridge. He climbs on top of the fridge. He climbs on everything. That’s why I need to secure everything in the house. He will do the same in there. If I’m hanging up washing outside, he will run inside his shed. He’s entitled to go into his shed. He’s allowed to do that. We’re allowed to go into the shed. Doesn’t mean we’re living in there. Of course, he’s going to play because he’s a child, and, yes, when we go into there at night time and put the light on, which will be needed to see where we’re going so we don’t trip over and so we can retrieve things, we need a light, we will go in there and, yes, [the Applicant] will probably be awake because he has a reverse sleep cycle, and, yes, he’ll probably jump on these …
[98] Transcript 84-85.
The Applicant requires assistance to set up the therapy equipment. While he is getting strong enough to move some of the equipment himself, such as the hamster wheel, rocker, and bike, Ms J would be doing it. She anticipates that as the Applicant gets stronger he would be able to move them himself.[99] He does not have the skills to do so at present and no one knows when he might.[100]
[99] Transcript 88-90.
[100] Transcript 90.
Ms J expects that equipment will be put into and taken out of the shed many times a day. The selection of what equipment might be used at any time may be hers or the Applicant’s should he indicate a preference by jumping or pulling on or playing with it.[101]
[101] Transcript 90-91.
Because of his lack of toileting self-control, the Applicant may soil equipment several times a day, which Ms J would wash and clean immediately.[102]
[102] Transcript 91-92.
The shed is proposed to be located in the backyard of the premises, close to the northeast corner of the house, but separated from it by about one metre,[103] and about two metres from the back door.[104] So far as exterior house lighting is concerned, there is a light inside the carport, and a backyard light, but it would not illuminate the inside of the shed.
[103] Transcript 98.
[104] Transcript 99.
Ms J does not limit the Applicant’s use of equipment, but it appears that he would be attracted to and use such items as are to hand. If not in his sight, he does not appear to miss them.[105] However, he will get bored playing with one piece of equipment.[106] She plans on having him pick items he would like to play with and then bring them into the house or for use in the yard.[107]
[105] Transcript 110-111.
[106] Transcript 113.
[107] Transcript 113.
The Applicant’s current plan allows for 30 hours for assistance with daily living, to be used flexibly, which is applied to a cleaner, a gardener and a handyman, as well as for items such as toileting and bedding requirements. She does not use a support worker to assist with the Applicant.[108]
[108] Transcript 120-121.
None of the therapy equipment requires electricity to operate, or overnight charging.[109] However, the ‘teacups’ set requires power to operate it, so electrical power points in the shed would be ‘very handy’.[110]
[109] Transcript 92-93.
[110] Transcript 93.
Ms J said some of the equipment is particularly susceptible to damage from mould, rust and other effects of environmental exposure or poor storage. By way of example, she cited the user manual for the stroller, which recommends storing the stroller ‘out of the sun and in a dry place’ and applying to it a ‘rust preventative type coating’ on numerous parts of the stroller.[111] Accordingly, the equipment needs to be housed appropriately in order to be insured, not in a ‘garden shed known for flooding, mould, rodent infestations, redback spiders, other pests’.[112]
[111] Exhibit R1 Document 3.7 Applicant’s Statement of Facts Issues and Contentions dated 19 June 2024, Joint Tender Bundle 684 at [9].
[112] Transcript 60.
Ms J argued the necessity for gyprock insulation from the requirement in the RAC Insurance Disclosure Statement that that there be ‘reasonable protection for your building and/or contents’,[113] and from conversations with someone at the RAC. She stated that the RAC had advised her that the Applicant’s equipment would be covered if housed appropriately in a watertight, structurally sound, secure and well-maintained place, but not in an uninsulated garden shed.[114] Ms J disagreed with the proposition that insulation is not a requirement for a building and its contents being maintained in good repair.[115] She claimed that the RAC had told her a ‘shed without insulation would not be considered watertight or structurally sound’.[116] She maintained that if the shed is not insulated, the equipment will become dirty and mouldy, despite it being removed from, used, and returned to the shed on a daily, if not more frequent, basis, and would not be insured.[117]
[113] Transcript 152.
[114] Transcript 151.
[115] Transcript 154.
[116] Transcript 151.
[117] Transcript 155.
Ms J tended to exaggerate and catastrophise the outcomes from a storage shed not being lined with gyprock, and had difficulty focussing on and addressing the questions being asked, the following exchanges being typical of many over two days of cross-examination on several topics:[118]
[118] Transcript 155-157.
Ms J: … But I can’t prevent mould in an uninsulated shed, which is why the RAC has recommended - - -
Ms FLINN: Ms J, … if [the Applicant] is using is using the equipment on a daily basis, if not on multiple times in the same day, would you accept that it’s highly unlikely that the equipment will become mouldy?
Ms J: No, because it’s stored in the shed. And if it’s not insulated, it will become mouldy. And if it becomes mouldy it won’t be insured … .
Ms FLINN: Would you accept that - - -?
Ms J: And what’s more- - -
Ms FLINN: No. Thank you, Ms J - - -?
Ms J: Flood damage – flood damage from those storms. Flood damage from storms - - -
Ms FLINN: Thank you, Ms J. Ms J, you’ve answered the question - - -?
Ms J: They will become not only mouldy, but very, very wet. And if it’s not insured, the NDIS will be up for another $8,000 stroller on a yearly basis.
…
Ms FLINN: Thank you. Ms J, if you are accessing the storage shed multiple times a day, you would notice, wouldn’t you, if [the Applicant’s] stroller started to develop rust or mould or get dirty, wouldn’t you?
Ms J: Yes.
Ms FLINN: So you would then clean the equipment to prevent it?
Ms J: No. If it’s become mouldy, then that’s becoming unhygienic for my child. And I think the NDIS – and then what happens with mould, the fabric becomes weak, and then [the Applicant] might fall through his stroller. I don’t think it would be expected for [the Applicant] to sit in a mouldy stroller covered with, you know, redback eggs and the like, and rat droppings. And Action Sheds informed me that insulation will prevent that, prevent all that damage, and hence then his stroller can be insured. And, you know, if it’s not insured then what’s going to happen to [the Applicant]? He’ll be without a stroller when it’s damaged and mould, theft, flood damage. Of course things need to be insured.
Ms FLINN: So, Ms J, if you are accessing the shed multiple times a day and you noticed that there, in part of [the Applicant’s] stroller or his therapy equipment, looked dirty or looked like it may be developing rust or mould, you would clean it, wouldn’t you?
Ms J: I’ve tried cleaning rust off his trampoline. And rust is like a cancer. It can’t come off. Wouldn’t you think? Have you tried cleaning rust off? I have. It comes back. Once something is rusted, if [the Applicant’s] stroller, if there was rust on it due to no insulation, I’d be applying to the NDIS for another stroller. That one took three years. How is my child going to survive without a stroller if it’s got rust? Would you expect a participant to sit in a rusty, mouldy stroller?
DEPUTY PRESIDENT: That’s not what you were asked, Ms J. You’re drifting off the question yet again?
Ms J: You can’t clean it off. You can’t clean it off. It’s damaged.
DEPUTY PRESIDENT: You were asked a question about whether or not if you detected signs of rust you would try to do something about it. That’s what you were asked?
Ms J: Yes, I would apply for a new stroller with the NDIS right away that same day. Yes.
…
MS FLINN: Ms J, given the amount of use that the therapy equipment has, it is highly unlikely, isn’t it, to become dirty, mouldy or rusty, wouldn’t you accept that?
Ms J: No. And the heat – as I said, with the hamster wheel, and all those products, the teacup, the bike the glue start melting in the – in the 50-degree heat in Perth in a garden shed it would melt.
Although Ms J contended that insulation was being denied by the Respondent, the quotes for the shed include insulation foam, although not gyprock.[119] After being taken through the quotes in detail, Ms J conceded that the shed would have a level of insulation and gyprock insulation as protection from heat was of marginal relevance, except that the gyprock ‘is needed to keep it in place’.[120] In the end Ms J agreed that gyprock cladding was not going to make any difference if there was already some insulation: ‘Yes, I would forget about that. And it’s not worth mentioning it anymore’, and blamed Respondent’s counsel for raising the ‘probably irrelevant’ issue.[121] Likewise the importance of having gyprock lining shifted in emphasis from a concern about damage to equipment from the elements and vermin, and an inability to insure equipment, to the need for it as a surface to affix shelving, cover the metal girts in the shed, and conceal electrical conduits.[122]
[119] Transcript 167-168.
[120] Transcript 167-170.
[121] Transcript 179, 182-183.
[122] Transcript 177-178.
The focus on the shed being the Applicant’s shed was emphasised on numerous occasions, to reinforce a requirement that it be fitted out to a standard where it could be safe for him to access and use.
Ms J’s affidavit averred that:[123]
I expect to use a portable air conditioning unit (and potentially a pedestal fan) in the shed so [the Applicant] can spend some time in there without being irritable and hurting himself or me.
[123] Exhibit R1 Document 3.5, Joint Tender Bundle 662; Transcript 122.
The Respondent’s counsel asked why that would be necessary if the shed was for storage, which resulted in this exchange:
Ms FLINN: So my question, Ms J, is, if the only intended purpose of the shed is to store [the Applicant’s] therapy equipment and stroller, why would [the Applicant] need to spend any time in the shed?
Ms J: Because it’s his shed and he’ll go in there, as I will. You can’t expect someone to go in the shed one second then come out. That’s a bit unreasonable. So for example – I’ll do a hypothetical into the future, or even if I had the shed now. Hypothetical. So we go out, when it’s not raining, middle of winter, but say it’s a nice warm night or whatever, any temperature. We go outside, you know, I might be hanging out washing. I’ll open the shed door. We might get something out the shed. The shed door will still be open, because why not? We’re out there. So [the Applicant] will probably wander in and out because he’s allowed to and he’s a child. He’s very inquisitive and all of that, and I’m going to allow him to wander into the shed because why not? Why would I not allow him to wander into the shed? It’s his shed after all.
…
Ms FLINN: … I want to ask a question about that. You said why not?---
Ms J: Yes.
Ms FLINN: Isn’t the answer to that because it could be dangerous for [the Applicant] to go into the shed by himself?---
Ms J: No, not at all, because his equipment’s going to be in there. He’s not a prisoner within his home. You can’t expect him to be a prisoner. It’s not – it’s not why would it be – it would be dangerous if there was no insulation and this big steel girt is going to stab me. It’s not – steel girts are very dangerous, as Jeremy Douglas [the Action Sheds operations manager] will tell you, that it’s not expected that big steel girts are acceptable in a shed even with an adult.
From Ms J’s perspective, it is the Applicant’s shed, and to deny him access would be to make him a ‘prisoner’ in his own home, and she would expect him to go in the shed to retrieve items as part of promoting independence. She said she expects, and will allow, him to go into the shed to play with his equipment. [124]
[124] Transcript 123-126.
Accordingly, it needs to be safe without risk of his harming himself on sharp edges, without risk of his climbing shelves that may do him harm, and at any time of the day or night. The purpose of heavy-duty shelving being installed in the shed was ‘for safety’, as the Applicant ‘appears to have no sense of safety and loves climbing. In the event that [the Applicant] goes into the shed, I expect the [the Applicant] may try to climb on the shelves’.[125] However, Ms J denied that that would make it unsafe for him to go into the shed as ‘It’s his shed. He needs to go into his shed, otherwise it’s a restrictive practice which is unlawful’.[126]
[125] Exhibit R1 Document 3.5, Joint Tender Bundle 660; Transcript 144-145.
[126] Transcript 143, 145.
Occupational Therapist Jacinta Gabbedy
Ms Gabbedy is an occupational therapist and clinical leader with Ability WA, based in Perth, where she has worked for 26 years. She has 30 years’ experience as an occupational therapist. She has been the Applicant’s primary occupational therapist since 2021.[127] Ms Gabbedy gave evidence with reference to reports she had complied and which were before the Tribunal, being the AT Assessment,[128] an NDIA Functional Assessment dated 18 March 2022,[129] a letter addressed ‘To Whom it may concern’ of 7 April 2022,[130] and her July letter.[131]
[127] Transcript 195.
[128] Paragraph 8(e) above; Exhibit R1 Document 1.1 T1M, Joint Tender Bundle 97-127.
[129] Exhibit R1 Document 1.1 T1S, Joint Tender Bundle 153-173.
[130] Exhibit R1 Document 1.1 T1T, Joint Tender Bundle 174-181.
[131]. Paragraph 8(f) above; Exhibit R1 Document 3.2, Joint Tender Bundle 618-626.

Ms Gabbedy performs a ‘consultative’ role for the Applicant, rather than regular therapy; she does a lot of advocating for Ms J with the Department for Communities and with respect to issues such as modifications for the property. She last saw the Applicant when she visited about a month before the hearing.[132]
[132] Transcript 197.
The purpose of her initial AT Assessment was for the provision of a shed to safely store the Applicant’s assistive and therapy equipment. She was aware of a quote from 17 September 2023, but had since been informed that a smaller, 4.0m by 3.5m shed, had been approved. She had not seen the most recent quote dated 8 July 2024.[133]
[133] Transcript 198.
In her estimation, the Applicant has no awareness of danger and doesn’t understand the consequences of his actions. She has seen him climb up high furniture, try to run onto roads and the like. He has limited cognition, understanding, and awareness of danger.[134] The Applicant has a very short attention span, can be restless and fidgety[135] and, if discomforted, can scream and cry and kick, and bite and scratch himself and his mother.[136]
[134] Transcript 199.
[135] Transcript 200.
[136] Transcript 201.
Ms J asked Ms Gabbedy about the Applicant’s access to the proposed shed. Ms Gabbedy considered that in the light of the Applicant’s presentation and unawareness of dangers, that the shed be locked unless he is supervised; she would not recommend him going into the shed without supervision from his mother.
There was some uncertainty about whether preventing the Applicant from entering a place of risk would be a restrictive practice. Ms Gabbedy’s understanding of a restrictive practice was that it was ‘any form of restraint, whether that be mechanical, physical, medicinal, that is given to a person to limit any behaviours, any challenging behaviours or behaviours of concern’.[137] She considered that locking the shed so that the Applicant could not enter it without supervision, or telling the Applicant he could not go into it because there’s a risk of harm, would be a restrictive practice, but not an unreasonable one, especially with regard to the Applicant’s age; it would depend on the circumstances.[138] In the context of the shed being ‘his’ shed, her first thought would be to eliminate hazards (such as dangerous objects therein).[139]
[137] Transcript 203.
[138] Transcript 204.
[139] Transcript 205.
However, she believed that the Applicant should be allowed to access equipment that he chooses from the shed ‘independently’.[140]
[140] Transcript 206.
Ms Gabbedy did not think that, due to the Applicant’s limited cognitive capacity, it was likely that he could be taught strategies to be safe in the shed. His therapy funding would be better applied toward improving his abilities in toileting, self-care and the like.[141] Any unsupervised access to the shed, were it to contain shelving he could climb and fall off, would be a risk.[142] This is unlikely to change once he turns 18 years of age.[143] If Ms J was not able to supervise him, the shed should be made as safe as possible.[144] At his current age, it would include locking the shed so that he cannot enter unsupervised.[145]
[141] Transcript 211.
[142] Transcript 211.
[143] Transcript 211.
[144] Transcript 211.
[145] Transcript 211.
Ms Gabbedy would hope that Ms J would organise the shed so that items that the Applicant could access independently would be at a height where he could retrieve them himself without the risk of having to climb.[146] She would recommend shelving of any height be secured.[147]
[146] Transcript 212.
[147] Transcript 233.
Having looked at the photographs of the interior of the house, Ms Gabbedy considered that there were already many potential hazards.[148]
[148] Transcript 231-232.
Operations Manager Jeremy Robert Douglas
Mr Douglas is the operations manager for Action Sheds. Its sales representative, a Mr Girvan Kaler, had supplied the quote dated 17 September 2023.[149] Mr Douglas was subsequently approached on behalf of the Applicant for expert opinion. He prepared an affidavit which he swore on 18 June 2024.[150] Action Sheds has subsequently prepared an updated quotation dated 8 July 2024.[151]
[149] Exhibit R1 Document 3.6, Joint Tender Bundle 674; Transcript 237.
[150] Exhibit R1 Document 3.6, Joint Tender Bundle 669-682; Transcript 237.
[151] Exhibit A2.
Ms Douglas testified that he has worked in the shed and patio industry for 22 years, since 2002. Over that time, he has built over 1,000 sheds.[152]
[152] Transcript 237.
What was quoted was a portal frame shed, the skeleton being made from c-section columns and rafters, with top hat wall girts and roof purlins framing it. The steel varies in thickness from 0.75mm to 2.4mm. The exterior comprises Colorbond sheeting and some flashings. Wall girts run horizontally around the shed and are to hold the columns square and to affix the Colorbond sheets. There would be girts at approximately 1.0m intervals, starting at about 0.3m above floor level.[153]
[153] Transcript 238.
Mr Douglas agreed that girts could be sharp ‘if you smack your hand against it’. He had cut himself holding girts, moving them around while building, and typically one would wear gloves when building.[154] He agreed that if someone – adult or child – was to grab a girt and moved their hand along it, they could slice a finger or cut a hand. The girts are ‘reasonably sharp’.[155]
[154] Transcript 238.
[155] Transcript 238-239.
To prevent injury, any flat surface such as gyprock, marine ply, would cover the top of the girts. Gyprock would create an interior finish like a house.
For electrical cabling, one would use a conduit. A conduit, if exposed, could be gripped and dislodged with reasonable force. The conduit could be concealed behind gyprock, but power outlets would be fixed to a girt and be exposed through the lining.[156] A qualified electrician, rather than Action Sheds, would install the electrical cabling. In his experience, a small distribution box would be installed with a Residual Current Device.[157] If lighting was to be installed, it would likely be LED battens mounted on the purlin top hat in the roof.
[156] Transcript 241.
[157] Transcript 242.
The quotes for the shed include Permastop for the roof and Sisalation foam cell, for the walls. Permastop is a glass wool insulation blanket; Sisalation is a 8.4mm thick dual layer foam material inside a backing of metal foil-like Sisalation paper. The shed would not be airtight, but the insulation would remove what would otherwise be a 3.0-5.0mm gap due to the profile of the shed. The sheds are as ‘waterproof’ as they can make them, but they are not ‘watertight, they’re not submarines’.[158] Removing the 3.0mm gap with the insulation gives some protection against insects and vermin, dust and fire embers.[159]
[158] Transcript 243.
[159] Transcript 244.
Mr Douglas advised that the SpinAway 300mm diameter vents were spinning throat vents for the roof to extract heat from the shed. The Permastop was thermal insulation, which also minimised the risk of condensation inside the shed. The Sisalation foam also acted to reduce heat, but also as a vapour barrier to condensation. There will be a 0.79m by 1.274m sliding glass window, and the 2.1m by 1.81m sliding glass door to the shed will be key lockable.[160]
[160] Transcript 245.
The shed accords with Australian Safety Standards.[161] As for girts, if you are not careful, you can hurt yourself.[162]
[161] Transcript 245.
[162] Transcript 246-247.
Gyprock is a standard industry product for walls. He was not present for any conversation that Ms J had about the purpose of lining the shed with gyprock: she may have had one with the sales representative Mr Kaler. Whether a shed would be lined depends on the use to be made of it.[163] You may line a storage shed if you were taking things in and out of it, or as a matter of personal preference, there being no ‘hard and fast’ rules. But ‘typically you wouldn’t need to line a shed if you were going in and out with the storage material in the course of a year, you know. Again, it just depends on what you’re putting in there and what you’re going to use it for but typically no’.[164] In conversations with Ms J, no specific equipment to be stored in the shed was mentioned.[165]
[163] Transcript 249.
[164] Transcript 250.
[165] Transcript 254.
By way of lining, gyprock would be cheaper and preferable to Colourbond and marine ply.[166]
[166] Transcript 255.
Mr Douglas could not recall having any conversation with Ms J about shelving that might be installed in the shed. He considered that gyprock would provide a greater surface area upon which to affix things, but it depends on the type of shelving being considered. The affixing of shelving to gyprock would still require being mindful of weight. Deep shelves holding weighty items of equipment would put great strain on the gyprock and one would want to affix them to a wall with background support.[167] Heavy duty garage-type shelving could be safely anchored by bolts into the floor slab, and be totally secure, rather than risk being pulled off the gyprock.[168]
[167] Transcript 248.
[168] Transcript 248.
THE APPLICANT’S CASE
The Applicant’s case for electricity can be distilled to:
(a)He and Ms J need access to the shed day and night. Night-time access is necessary as the Applicant’s sleeping patterns are not regular and the sensory equipment that will be in the shed can calm him.[169] Every night is different, but the Applicant would usually use several pieces of equipment to ‘burn’ energy and relax him for sleep.
(b)Mains powered electric lighting is necessary for Ms J’s safety, to enable her to enter the shed after dark, select necessary equipment and remove and replace it. If there were no mains-connected lighting, there was the potential for her and the Applicant to trip, or for things to fall on their heads. It was unreasonable to expect her to climb a ladder to access items on high shelves without light or holding a torch. It was unreasonable to expect her to rely on a portable battery-powered light source.
(c)Mains powered electric lighting was necessary for the Applicant’s safety, to enable him to enter the shed at night and use his equipment.[170]
(d)Wireless LED lights, such as a Lytworx motion sensor puck light, are not an adequate alternative to mains electrical lighting because they are ‘very cheap and nasty’ and regularly go flat.
(e)Mains electricity will also be necessary for cooling equipment – such as a portable air-conditioner or fan – so that the Applicant can use his equipment in the shed. If he overheats, his thermosensitivity may result in seizures or his death.[171]
(f)Mains electricity would also be able to power any equipment that they may choose to use in the backyard.
[169] Transcript 54.
[170] Transcript 73.
[171] Transcript 73.
Although the emphasis changed soemwhat, the Applicant’s case for gyprock lining can be distilled to:
(a)The equipment to be stored in the shed is valuable, and ‘totals $20,000’.[172] Some of it is not readily replaceable, and one item needed to be imported from China. Accordingly, it needs to be adequately protected from the elements, and from encroachment by insects, spiders, and other vermin. Further, without adequate insulation, the shed can become too hot and some of the equipment may be damaged. If it is not adequately protected from water and damp, wood would rot, metal would rust, and fabric would become mildewed.[173]
(b)The equipment stored in the shed needs to be insured. Insurance will require adequate protection and will not cover damage from mould, mildew, or rust. Ms J would be unable to obtain insurance unless the shed is gyprocked.
(c)There will be a need to install shelving to store some of the Applicant’s equipment, which needs to be heavy duty. Gyprock lining is necessary to satisfactorily anchor the shelves to support the Applicant’s weight, as he has a propensity to climb.
(d)The shed as quoted will have exposed steel girts inside, which can be a cutting hazard. The gyprock lining will conceal them and save the Applicant and Ms J from the risk of harm. Such harm may occur if Ms J were to fall off a ladder or trip and fall against a girt, or if the Applicant were to strike the girt or fall against one.
[172] Transcript 54.
[173] Transcript 61.
This was supplemented by Ms J’s contentions that:
(a)The Ferndale house is going to be their ‘forever home’, not a place that they will be asked to leave;
(b)The shed is, effectively, going to be an addition to the house, an additional room, and extension of their home, so needs lighting and insulation as does any other room;[174] and
(c)The shed would be the Applicant’s shed – being ‘his’ shed he could not be prevented from entering it any time he wished, notwithstanding the dangers Ms J feared, and he was likely to do so. She could not prevent him entering as it would be a ‘restrictive practice’ and unlawful. Accordingly, mains electric power was essential for lighting to allow him to see after dark, and gyprock lining was essential to protect him from metal edges and the consequences of his climbing on shelving that was insufficiently secure to support his weight.
[174] Transcript 53.
THE RESPONDENT’S CASE
The Respondent contends that the evidence presented for the Applicant does not establish that the desired supports meet all the necessary criteria in section 34(1) of the NDIS Act and rules 3.1 and 3.4 of the Supports Rules.
In short, the Respondent’s case appears to be that:
(a)Funding the shed was to permit the storage of therapy and assistive equipment currently in the house or stored off-site. It was not to provide the Applicant with a play or equipment-use space; nor should it be regarded as an additional room or extension of the house and treated analogously. There was no call for the Applicant to be in the shed, and certainly not without being subject to supervised control;
(b)So far as lighting was concerned, any need to obtain equipment from the shed could be satisfactorily planned to avoid entry after dark or, if after dark entry was necessary, it could be facilitated by low-cost battery-powered alternatives for the short time that access was required, and by storing items so that climbing ladders in the dark was unnecessary;
(c)So far as electricity to operate equipment or cooling appliances was concerned, it being only a storage shed there was no need for the Applicant to have entry to it or for him to stay long enough to require thermoregulation; and
(d)So far as gyprock was concerned, the shed would already be equipped with a level of insulation that would be adequate to protect the intended contents from any reasonably feared deterioration. In any case, gyprock cladding was not necessary to properly secure shelving and may not be adequate to make shelves safe for climbing; hazards from exposed structural metal such as girts could be avoided with elementary care; and if there was no electricity, there would be no need for gyprock to conceal power conduits. Again, there was no need for the Applicant to have access to the shed and be exposed to any perceived risks.
CONSIDERATION
Section 34(1) of the NDIS Act requires a decision-maker, including the Tribunal, to be satisfied of each and all the prescribed criteria to fund a reasonable and necessary support.
I shall address each in turn.
Section 34(1)(a): the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
The Applicant’s goals, as expressed by Ms J in the Applicant’s most recent Plan of 21 June 2024, are:[175]
… to be supported in his communication, language and literacy skills so he is able to communicate with others in his chosen method.
… to develop fine and gross motor skills.
… to be able to develop friendships and relationships with others and be supported in participating in community activities.
… to be able to physically and safely access the community and receive the equipment he needs.
… to be able to develop his ability to self-regulate and soothe himself when needed.
… to develop his self-care skills so he is able to dress himself and get ready in the morning and support his fine motor development.
[175] Exhibit R1 Document 4.1, Joint Tender Bundle 772-773.
The examples given by Ms J as to how the Applicant will work towards each of those goals are, in sequence, that he:[176]
… will for example be able to request items and create sentences using his communication device.
… will for example be able to hold a pencil so he can draw, ride a bike and play ball sports.
… will for example be able to initiate interactions between peers, be supported in having access to peers and be able to engage in group activities.
… will for example be able to keep safe when he access [sic] the community with [Ms J], and learn new skills.
… will for example be able to calm himself when he feels frustrated and seek healthy coping strategies when distressed
… will for example be able to dress himself, develop toileting independence and open containers
[176] Exhibit R1 Document 4.2, Joint Tender Bundle 789-814.
I accept that the support of a storage shed will ‘assist’ the participant as required by section 34(1)(a). The question is the necessary and reasonable standard of fit out for the shed.
The evidence establishes that the Applicant is unable to retrieve equipment from, or return equipment to, the storage shed on his own, let alone without supervision. Ms J acknowledges that he does not have the skills to do so at present. He may in future be strong enough to do so, but Ms J herself insists that no-one can say when he may be able to.[177]
[177] Transcript 90.
Ms J contends that connecting electricity to the storage shed will assist the Applicant to safely retrieve his own equipment in the future, including because it will allow a fan or other cooling equipment to be installed to mitigate the effects of his thermoregulation disorder. That is not a goal in the Applicant's current NDIS plan. While one might argue that being able to enter a shed and select, remove and use equipment can contribute to the development of other skills or illustrate the acquisition of some other skills, no level of such self-sufficiency is described in the examples Ms J gives of how the Applicant will work towards those goals.
In any case, it is plain from the evidence that whatever Ms Ms J’s hopes might have been for a larger shed which the Applicant could employ for other activities, the proposed shed is small, and the purpose for which it was funded was for storage of items to free up the interior of the house. It would be impractical to use the equipment when inside. Any activity inside the shed would be of only short duration and to locate, remove and return items and, occasionally, to sweep and clean it. None of these activities would require electrical power to be drawn from the shed for lighting or cooling appliances catering to the Applicant’s thermoregulation.
Ms Gabbedy's report of 21 July 2023 lists the items of equipment utilised by the Applicant throughout the day to support the activities that form part of the Applicant's 'sensory diet', and why these items should be stored outside of the family home; namely, lack of space to store the equipment in the Applicant’s small home. The purpose of a ‘suitable’ shed is to enable the storage of such items to free up space in the house.[178] Her report makes no reference to any therapeutic need for electricity or gyprock lining to be installed in the shed.
[178] Exhibit R1 Document 3.2, Joint Tender Bundle 624.
During the hearing, the Respondent sought Ms Gabeddy's opinion as to whether, and how, the requested supports could support the Applicant's goals as set out in his current Plan. However, her attempts to answer were repeatedly interrupted by Ms Ms J, who volunteered her own opinions in lieu of allowing Ms Gabeddy to answer the questions put to her. Attempts by the Tribunal to curtail such interruptions and to restrain her from unfounded objections proved unsuccessful, resulting in fragmented, and perhaps less, evidence to support the Applicant’s arguments than might have been the case.

Ultimately, I am not satisfied that the provision of electricity and gyprock lining in the storage shed will meaningfully ‘assist’ the Applicant to pursue his stated goals, objectives, and aspirations. Mains electricity may make the task of removing equipment from and returning it to the shed more convenient, but that task is not jeopardised by its absence, and it is not sufficiently connected to achieving the stated goals. Likewise, gyprock lining will not contribute to the proper use or preservation of the equipment proposed to be stored within the shed, and its absence will not affect the ability of the Applicant to use his equipment in the pursuit of his goals.
Section 34(1)(b): the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
While I am satisfied that the provision of a storage shed will assist the Applicant to undertake relevant activities, by providing more space in the house to effectively use his therapeutic equipment rather than just store it, I am not satisfied that electricity and gyprock lining in the shed will do so.
The extent to which mains electricity will assist the participant is to permit his mother to more conveniently remove from, and return into, a storage space any therapy and behaviour regulation equipment she chooses to store in it. I leave aside the question of powering fans and other cooling devices, as the shed is not intended for periods of occupancy or use that warrant them.
The intended purpose of the gyprock lining to the storage shed is to allow a mounting point for shelves that the mother may wish to install in case the Applicant is permitted to climb them, and to cover exposed metal considered to be a hazard.
These do not assist the Applicant to undertake the therapeutic or behavioural regulation activities for which the equipment is required and is to be used. I am not satisfied that the presence or absence of mains electric power to the shed or gyprock lining has any, or any significant, impact on the facilitation of the participant’s social and economic participation.
I accept the Respondent’s submission that the support that assists the Applicant to undertake activities to facilitate his social participation is the storage shed itself. The storage of his equipment enables more room to be made available in the home for him to undertake those activities. The storage shed is not being installed for the purpose of providing the Applicant with an additional space in which to undertake those activities, so the provision of electricity and gyprock lining in the storage shed will not assist the Applicant to undertake any activities to facilitate social and economic participation.
Section 34(1)(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;
Rule 3.1 of the Supports Rules sets out the matters to be considered in this respect.
I shall deal with each of electricity and gyprock in turn.
Mains electricity
Artificial lighting in a storage shed would only be necessary during hours of darkness, as it will have a window and a large sliding glass door to let in natural light. I do not accept Ms J’s evidence that a small shed, with a large glass sliding door and a fair-sized window, would require artificial light on overcast days. The question is whether, for the short time that anyone would need to spend in such a space at night, mains-powered electric lighting is necessary.
In relation to rule 3.1(a), the Respondent has suggested a variety of battery powered lighting options which would provide sufficient lighting for the purpose of being able to locate and remove or return items to the shed, at a substantially lower cost than electrical cabling. Ms J rejects these as cheap, unreliable, and otherwise unsatisfactory. Having regard to her manner of giving evidence, and her refusal to entertain any position contrary to her wishes, I doubt whether she has, as she claims, tried all the options suggested by the Respondent, or sought to make them work. Furthermore, her insistence on drawing parallels between the need for mains-powered electrical lighting to the shed and mains-powered electrical lighting to kitchens, toilets, house hallways and the like, is misconceived. It may be that her carport happens to have electricity – that does not assist in deciding whether a storage shed should have it. One would expect that mains-powered lighting be present in the interior of houses. That is not necessarily the case in a storage shed.
I am prepared to accept that mains-powered electric lighting to the shed will be a convenience, and make life easier for Ms J, but I am not satisfied in relation to rule 3.1(b), that the requested electric lighting will ‘substantially improve the life stage outcomes for, and be of long term beneﬁt to’, the Applicant. Having regard to the limited purpose for which the NDIS has provided the shed, and the use to which it should be put, the same outcome could be achieved with less expense.
I should mention Ms J’s argument that, without mains-powered lighting, she would be in danger climbing ladders to reach the top-most shelves she may have installed in the shed, or be at risk of tripping over items on the floor. First, if she does propose to install shelves, there is no requirement that she affix them at heights out of her reach, or which will require her to climb ladders at night. Likewise, it is her responsibility to be mindful of how she stores equipment and other items so that they do not present a tripping hazard. I note that the photographs provided to the Tribunal of the interior of her home show a level of clutter that one would think presents numerous hazards: there are unsecured and what appear to be unstable, and above head-height, stacks of boxes and storage tubs, and vast quantities of miscellaneous items, piled on the floors of the bedrooms and hallway and in the bathroom. They are not, from what one can see, all attributable to the space taken up by therapy equipment. It is for Ms J to take some responsibility to ensure that her and the Applicant’s home environment is safe, and that includes how she organises the functionality of the interior of the shed. Furthermore, the purpose of the shed was not to store household items and clutter generally or relieve her of the cost of her off-site storage unit, but specifically for the Applicant’s therapy equipment and stroller.
As to rule 3.1(c), there is no evidence before the Tribunal that mains-powered electric lighting is likely to reduce the cost of the funding of supports for the Applicant in the long term. The considerations in rules 3.1(d) and (e) are not relevant to the circumstances in this matter.
In relation to rule 3.1(f), I am not satisfied on the evidence that the requested supports will increase the Applicant’s independence and reduce his need for other kinds of supports.
I am not satisfied that mains-powered electric lighting represents value for money because there are reasonable steps that the Applicant’s mother can take to utilise the storage shed for its intended purpose, without creating risk to the Applicant’s safety or any unreasonable risk to her own safety.
I agree with the Respondent’s submission that it is reasonable for the Applicant’s mother to ameliorate any difficulties by one or more of the following:
(a)adjust her routine by accessing the storage shed during the day, so that items of equipment that might be used by the Applicant during nighttime hours are brought into the family home before dark, or to have them readily accessible without having to search or climb for them in the shed;
(b)install and maintain inexpensive lighting that is not reliant on an electrical connection;
(c)keep the storage shed tidy and clean to minimise risk of tripping and presence of vermin;
(d)keep the storage shed locked at appropriate times to secure the equipment and reduce the risk of theft, as well as to prevent the Applicant from entering the storage shed unsupervised;
(e)keep the equipment clean, particularly in circumstances where it is used several times a day;
(f)not install shelving that is too high for her to reach safely without a ladder.
Gyprock lining
The evidence demonstrates that:
(a)the insulation in the storage shed, provided as part of the current quotation from Action Sheds, is adequate to minimise the risk of insect and other vermin and to reduce the heat that equipment will be subject to;
(b)the storage shed will be sufficiently watertight once installed;
(c)the cleanliness of the storage shed, like with any room of the house, can be regularly assessed, and attended to, by Ms J; and
(d)Ms J will be able to check and maintain the Applicant’s equipment to prevent mould and rust, and if any is detected, action can be taken to remedy it.
The evidence is that the equipment to be housed in the shed – albeit some items more than others – will be accessed frequently.[179] It is not the case that they will be stewing, neglected, in an uninsulated garden shed for extensive periods of time, open to the elements and prey to easy access by vermin. The condition of items can be monitored. The Applicant’s plan has provision for maintenance of the stroller,[180] and any deterioration of other items will not go unnoticed. Ms J accepts that the Applicant’s equipment requires frequent cleaning and that she attends to it as necessary.[181] The evidence before me suggests such damage is unlikely, or no more likely than if stored in the house, and preventable through taking reasonable precautions.
[179] Transcript 52, 55, 90, 154, 155.
[180] Exhibit R1 Document 4.3, Joint Tender Bundle 813.
[181] Transcript 91-92.
Ms J seems to have abandoned the argument that gyprock lining was necessary to secure insurance. In fact, Ms J accepted that she would be accessing the shed many times a day and would notice if the Applicant’s stroller started to develop rust or mould or became dirty.[182] The fabric on the stroller can, if necessary, be removed for washing as explained in the stroller’s Assembly and Care Manual.[183] She has, in accordance with the Manual, applied a rust preventative coating on those parts of the stroller as recommend.[184]
[182] Transcript 156.
[183] Transcript 160-161; Exhibit R1 Document 3.8, Joint Tender Bundle 703.
[184] Transcript 161-162; Exhibit R1 Document 3.8, Joint Tender Bundle 710.
I am not satisfied on the evidence that gyprock lining in addition to what is to be provided will meaningfully reduce, let alone eliminate, the risk of vermin or spiders: indeed, one might think that an additional lining in the shed may provide an additional space in which insects and spiders may live. Ms J’s concern that her son may be expected to use his stroller when it is covered in red back spiders, or that it will become rusty or mouldy, after it spends some little time in an un-gyprock-lined shed is fanciful.
In relation to the issue of danger from exposed metal girts, Mr Douglas gave evidence that the exposed edges can be sharp enough to cut if one is not careful. He has suffered injuries by not wearing protective gloves when assembling such sheds. In his experience, whether a storage shed is lined, and the material for the lining, depends on preference and the purpose for which the shed is intended; there is no ‘hard and fast’ rule.[185]
[185] Transcript 249-250.
I can appreciate that the lining of the shed with gyprock may reduce the risk of injury by negligent or reckless conduct. However, on balance I am not persuaded that it is necessary for a shed used for the purposes for which it was supplied, namely a storage space for items of equipment that are to be used outside the shed.
Ms J, in the Applicant’s closing submissions, points to rule 5.1(a) of the Supports Rules, noting that ‘A support will not be provided or funded under the NDIS if … it is likely to cause harm to the participant or pose a risk to others’, arguing that since the Respondent has approved the support it has an obligation to remove the risks of harm she alleges are inevitable.[186] However, rule 5.1 is framed to prevent the Respondent from providing harmful supports; Ms J is in effect arguing that the Respondent ought not to provide or fund the shed at all. That, plainly, is not her intention.
[186] Applicant’s Final Submissions dated 20 September 2024 at (for example) pages 6, 9, 34, 43. Ms J appears to be referring to the Reasonable and Necessary Supports guidelines (Exhibit R1 Document 5.2, Joint Tender Bundle 843), but they reflect the Supports Rules (Exhibit R1 Document 1.1 T47, Joint Tender Bundle 485).
The shed is to be constructed to Australian Safety Standards. Accordingly, it is not inherently dangerous or harmful to others if used for its intended purpose – the storage of therapy equipment – and with due care. I consider that reasonable precautions can be exercised to avoid risk of harm to the Applicant and his adult mother, who is plainly mindful of the risks and capable of avoiding them.
Unfortunately, Ms J does not seem prepared to entertain taking such precautions. She seemed to regard the shed as ‘as an addition to the house’ and an ‘extension of our home … another room’, and that she would expect the Applicant to have and not stand in the way of him having access to it and ‘play and move things around’ inside it. This was rationalised on the basis not only that he was impulsive and had no appreciation of danger, but also that it was ‘his shed’ and that she could not lawfully prevent him exercising proprietary access as it would be an unlawful restrictive practice.
It seemed to me, from the way that this issue was raised by Ms J, that it was a make-weight argument to counter the suggestion that she ought not permit the Applicant to put himself in danger of risks that she identifies. Ms Gabbedy was asked some questions about restrictive practices but did not profess to be conversant on the subject, it being managed by others in her organisation. She did explain that her understanding of a restrictive practice was ‘any form of restraint, whether that be mechanical, physical, medicinal, that is given to a person to limit any behaviours, any challenging behaviours or behaviours of concern’.
It is unnecessary for me to delve further into this. I consider to be bizarre the idea that a responsible mother would think it imperative to allow her at-risk child to have access to realistically perceived hazards, on the basis that it would be unlawful for her to prevent him doing so. Apart from his intellectual limitations, the Applicant is 11 years of age, and Ms J herself says that she has stopped him from impulsively jumping into the river or running across a road. I would be surprised if Ms J would stand by impotently should the Applicant seek to have access to dangerous articles or places in their home on the basis that it is part of his environment. On the material before me, I reject categorising the shed as being ‘his’ creates a bar to her taking reasonable precautions on her own property to limit his access to hazards he may not appreciate. In the case of a storage shed, those precautions would include locking it so that he cannot enter it without her supervision and control.
As to the risk of climbing shelves that may not be secure, the evidence was that fastening them to gyprock may increase safety but would not guarantee it; indeed, affixing to gyprock may give a false sense of security. Anchoring any suitable shelving to the pad is likely to be a better proposition, but as Ms J was not specific about nature or number of shelves she had in mind installing, no more can be said.
As for gyprock protecting the Applicant from dislodging electrical conduits, that is predicated upon there being mains-connected electric lighting to the shed, and the Applicant being allowed free access to it.
Section 34(1)(d): the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
I am aware of no current ‘good practice’ regarding providing electricity and additional interior lining as a component of a participant support in the form of a storage shed, generally or with reference to children with similar needs to the Applicant. One may emerge over time but at present it is something that must be determined case-by-case.
Mains-powered electric lighting will be convenient for Ms J should she need to have access to the shed after dark, and the gyprocking will relieve her of some responsibility to look out for the Applicant’s safety should she allow him access to the shed. To that extent, the desired supports will be ‘effective and beneficial’ for the participant. However, whether that is sufficient to satisfy the requirements of section 34(1)(d) is unnecessary for me to decide in the circumstances.
Section 34(1)(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;
In deciding whether funding or provision of the desired supports takes account of what is reasonable to expect Ms J, as the Applicant’s mother and primary care giver, to provide, the Tribunal must consider the matters set out in rule 3.4(a) of the Supports Rules.
The Respondent submits that the Tribunal must consider pursuant to rule 3.4(a)(i) that it is normal for parents to provide substantial care and support for children and that this includes a basic duty to take reasonable steps to avoid foreseeable risks of harm to their child. I agree and have mentioned some precautions that Ms J might take to avoid the Applicant being exposed to what she considers hazards in the storage shed. There is also no doubt that the Applicant’s care needs are substantially greater than those of other children of a similar age (see rule 3.4(a)(ii)).
Having regard to rule 3.4(a)(iii), the risk to wellbeing of Ms J as the Applicant’s mother and carer seems, on her evidence, limited to her not having sufficient light at night to locate items in storage shed. This may lead to her falling off ladders when reaching for items she might store on any high shelves she may choose to instal; tripping hazards; and her accidentally cutting herself on some exposed metal in the shed. These are not peculiar to her situation and can be avoided with reasonable care.
Rule 3.4(a)(iv) provides that consideration should be given to whether the funding or provision of the requested supports would improve the Applicant’s capacity or future capacity, or would reduce any risk to the child’s wellbeing. I am not satisfied mains electricity or gyprock lining would improve the Applicant’s capacity or future capacity, but accept and have taken into consideration that gyprock lining would reduce risk to his wellbeing by concealing some of the metal edges in the shed, should he be permitted to enter it.
Section 34(1)(f): the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services …
If the other criteria are met, there is no evidence that the support being sought would be other than appropriately funded by the NDIS. In the circumstances, the question is moot.
CONCLUSION
Having regard to the above, I am not satisfied that the Applicant’s request for mains electricity connection and gyprock lining for the Applicant’s storage shed is a reasonable and necessary support that should be funded by the NDIS.
Accordingly, I affirm the decision under review.

I certify that the preceding 149 (one hundred and forty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Mischin

....................[Sgd]....................................................

Associate
Dated: 27 September 2024

Date(s) of hearing: 9 and 18 July 2024

Date of final submissions: 20 September 2024

Applicant: In person
Represented by Ms J

Counsel for the Respondent: Ms J Flinn

Solicitors for the Respondent: Sparke Helmore

Date(s) of hearing:	9 and 18 July 2024
Date of final submissions:	20 September 2024
Applicant:	In person Represented by Ms J
Counsel for the Respondent:	Ms J Flinn
Solicitors for the Respondent:	Sparke Helmore