Schaefer and National Disability Insurance Agency (NDIS)
[2025] ARTA 1541
•25 August 2025
Schaefer and National Disability Insurance Agency (NDIS) [2025] ARTA 1541 (25 August 2025)
Applicant/s: Ruth Schaefer
Respondent: National Disability Insurance Agency
Tribunal Number: 2024/9568
Tribunal:General Member Gooch
Place: Adelaide
Date:25 August 2025
Decision: The Tribunal affirms the decision under review pursuant to section 105(a) of the Administrative Review Tribunal Act 2024.
Statement made on 25 August 2025 at 4:44pm
Catchwords
National Disability Insurance Scheme – reviewable decision of Chief Executive Officer – Statement of Participant Supports – reasonable and necessary supports- Getting the NDIS Back on Track Transitional Support rules – NDIS support –– plan management – transport – behavioural support – movement of funding between categories – reasonable and necessary – Note 1 to section 34 - payment of invoices – reviewable decisions - decision affirmed
Legislation
Administrative Review Tribunal Act 2024, ss12, 105
National Disability Insurance Scheme Act 2013 (Cth), ss 3, 4, 10, 24, 25, 33, 34, 35, 99, 103, 209
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 Items 129, 138, 139 of Schedule 1
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 rr 4, 5, 6, Schedule 1 & 2
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024
Cases
Drake and Minister for Immigration and Ethnic Affairs (No. 2) 1979 2 ALD 634
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Secondary Materials
Revised Explanatory Memorandum - National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024, Item 46
NDIS Operational Guidelines – Principles we follow to create your plan, dated 27 April 2025
NDIS Operational Guidelines - Reasonable and Necessary Supports, dated 28 March 2025.
NDIS Operational Guidelines – Including specific types of supports in plans dated 2 December 2024
NDIS Operational Guidelines – Supports funded by the NDIS dated 26 March 2025.
NDIA Information Sheet – Support co-ordination Support coordination | NDIS
NDIA Information Sheet – Psychosocial recovery coach PB Psychosocial Recovery Coach Information PDF.pdf
Reasons for Decision
This is a review of a decision by a delegate of the CEO of the National Disability Insurance Agency (the Agency) to approve a statement of participant supports (SOPS) for Ms Schaefer.
Relying on the Agency’s Statement of Facts, Issues and Contentions (SFIC) the history of this review involves an ongoing process of negotiation, change and requests for change which have continued from the previous plan. The original decision in this dispute involved a SOPS made on 7 October 2024 for the period 7 October 2024 to 6 October 2025 and included the following funding:
a.Assistance with daily life - $62,472.96
b.Assistance with Social, Economic and Community Participation - $25,370.28
c.Behaviour Support - $14,494.32
d.Improved Daily Living Skills - $5,819.76; and
e.Support co-ordination and psychosocial recovery coaches - $18,178.80[1]
[1] Agency Statement of Facts, Issues and Contentions (SFIC) at [20]
Prior to the development of this SOPS, management of Ms Schaefer’s plan had been changed to Agency-managed due to concerns about Ms Schaefer’s previous funding usage. These concerns included application of funding to services which were not included in her SOPS and invoices submitted from businesses without a proper ABN. As a result of these concerns, this SOPS continued to be under Agency management.[2]
[2] Ibid at [61] – [62]
Ms Schaefer applied for an internal review and on 8 November 2024 a different delegate of the CEO affirmed the original decision. (the decision under review).
On 18 November 2024 Ms Schaefer applied to the Administrative Review Tribunal (the Tribunal) for review of this decision.[3]
[3] Page 103 Exhibit 1
In seeking her review Ms Schaefer asserted she had previously been receiving 18 hours a day, 7 days a week support under plan management which she required as her impairments ‘created a need for extensive support’. She stated that the change to Agency managed had limited her access to services as there were few registered services in her area. She requested her plan be changed back to plan managed.[4]
[4] Pages 6, 46 and 47 of Exhibit 1
The decision under review set out the Agency’s understanding of Ms Schaefer’s requests (made in writing and by phone call) as follows:[5]
a.a change in plan-management from Agency-managed to plan-managed;
b.a change to funding distribution by moving funding assigned to behaviour supports to funding for support co-ordination/psychosocial recovery coaching;
c.a request for the inclusion of transport funding in her plan.
[5] Page 62 of Exhibit 1
Ms Schaefer submitted multiple emails to the Tribunal, both prior to and after the substantive hearing. In those emails (and orally at hearing) she confirmed that one of her most significant concerns was that the Agency had not paid past invoices for support work she had received and that as a result she was unable to continue to receive services from her preferred providers. She sought orders the Agency be required to pay these invoices from funds other than those in her current plan. These invoices included:
a.Invoice no. INV-6529 issued by Ann Atkinson on 26 July 2023 in the amount of $564.00
b.Invoice no. INV-7642 issued by Jim’s Bookkeeping/Ann Atkinson on 18 September 2024 in the amount of $1,584.00
c.Invoice no. 1075 issued by Incorporeal Charity of God Ltd on 27 June 2023 in the amount of $26,358.00
d.Invoice no. 1077 issued by Incorporeal Charity of God Ltd on 12 July 2023 in the amount of $12,984.00
e.Invoice no. 1078 issued by Incorporeal Charity of God Ltd on 16 July 2023 in the amount of $12,302.00
f.Invoice no. 1079 issued by Incorporeal Charity of God Ltd on 10 October 2023 in the amount of $28,414.00
g.Invoice no. 1100 issued by Incorporeal Charity of God Ltd on 16 September 2023 in the amount of $18,695.00
The total owed for Ms Atkinson is $2,148. The total owed to Incorporeal Charity of God is $98,753. The principal place of business address of Incorporeal Charity of God per ASIC company search completed on 30 May 2025 is listed as c/- Ann Atkinson, 9 Wiskar Close, Bentley Park QLD 4869.
10. The Tribunal understands these invoices were not paid as Ms Schaefer’s plan was Agency managed and the invoices were submitted on behalf of providers who were not registered.
11. Ms Schaefer requested the Tribunal require the Agency pay these invoices. The Tribunal advised Ms Schaefer it was unable to do this as payment of invoices was a matter for the Agency and not before the Tribunal to determine.
12. The hearing of this dispute was held on 3 July 2025.
13. On the evening before the hearing the Agency provided the Tribunal with a copy of an amended plan commencing from 2 July 2025. Changes to this plan included:
a.A change in management of the plan from Agency managed to plan managed;
b.Addition of funding for choice and control which will allow Ms Schaefer to pay for a registered plan manager to manage her funding and pay for services.
14. As a result of this amendment there remained two issues before the Tribunal arising from the decision under review:
a.the request to move funding from the behaviour support category to the support co-ordination/psychosocial recovery category; and
b.the request for inclusion of amounts for transport.
15. Ms Schaefer sought to include as an issue the matter of payment of the outstanding past invoices detailed above. A representative for the Agency advised Ms Schaefer that she could resubmit the outstanding invoices for consideration under the now plan-managed SOPS to be processed in the usual manner. Ms Schaefer instead continued to press for a guarantee those invoices would be paid.
16. The hearing proceeded by way of video hearing, although Ms Schaefer chose to attend by telephone.
17. The hearing was very difficult to manage, partly as a result of Ms Schaefer’s impairments, and partly as a result of the large volume of documentation which was provided to the Tribunal at the last minute. The Tribunal briefly adjourned the hearing to allow it to consider those documents.
18. Ms Schaefer gave evidence under affirmation, as did Ms Karen Hersey, current support co-ordinator, and Ms Ann Atkinson, support worker.
19. The Agency was represented by Ms Sarah Lane of Counsel, instructed by Sparke Helmore Lawyers.
20. Aside from the ‘joint tender bundle’ provided by the Agency, the Tribunal received many emails from the applicant with multiple attachments, many of which were duplicated. The Tribunal has identified the following documents provided to it which have been considered:
a. Joint tender bundle noted as Exhibit 1
b. Statement of Facts, Issues and Contentions of the Agency noted as Exhibit 2
c. Respondent’s Submissions as to Disposition of Matter noted as Exhibit 3
d. Applicant’s supplementary bundle of further material noted as Exhibit 4
e. Copy of updated plan dated 2 July 2025, noted as Exhibit 5
f. Support co-ordination progress report undated, noted as Exhibit 6
g. Risk assessment by Karen Hersey dated 30 June 2025, noted as Exhibit 7
h. Bundle of applicant’s provider invoices noted as Exhibit 8
i. Letter of Mr Robert Bright, psychologist, dated 23 September 2020, noted as Exhibit 9.
21. After the hearing the Agency submitted closing submissions dated 10 July 2025.
22. Ms Schaefer submitted her closing submissions by email dated 10 July 2025.
23. For the reasons set out below the Tribunal affirms the decision under review.
ISSUES
24. The issues before the Tribunal include:
a.Whether funding should be moved from behaviour support to support co-ordination and psychosocial recovery coaching; and
b.Whether transport funding (and at what level) is a reasonable and necessary support that ought to be included in the SOPS.
c.a request by Ms Schaefer for Agency payment of prior and outstanding invoices in the total of $100,901.
JURISDICTION
25. A decision to approve a statement of participant supports is a reviewable decision.[6]
[6] Item 4 and 6 of section 99 of the NDIS Act
26. On 7 October 2024 a delegate of the CEO made a decision to approve a statement of participant supports. In the internal review decision dated 8 November 2024, a different delegate stated that a decision to move funding from one category of supports to another was not a reviewable decision and could not be internally reviewed.
27. I consider that this was an incorrect statement in that a decision in relation to funding of reasonable and necessary supports, which may include preferencing funding of one support over another, simply constitutes part of the decision to approve the SOPS and is not a separate category of decision itself.
28. In reaching this conclusion I rely on subsections 33(2A)(b) and (c) of the NDIS Act which provide that a participant’s SOPS must ‘categorise the reasonable and necessary supports that will be funded into one or more groups of supports’ and ‘specify the funding that will be provided under the plan for supports in each group’.
29. The determination of which reasonable and necessary supports will be funded in a SOPS requires consideration of all the factors in section 33(5) of the NDIS Act, which incorporates consideration of all the mandatory criteria of section 34 of the NDIS Act. A decision maker may only reach a state of positive satisfaction as to the section 34 criteria if there is sufficient evidence before them to do so.[7]
[7] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [201]; McGarrigle v National Disability Insurance Agency [2017] FCA 308
30. In considering whether funding should be provided to the category of support co-ordination/psychosocial recovery or the category of behavioural support, the task before the delegate was, in my view, to undertake a review of the categories of funding identified in the original SOPS decision and to assess whether these were appropriate.
31. This should have been done by applying the section 33(5) and 34 criteria. While the internal review decision did not properly engage with this process because of its mischaracterisation of that part of the task, I am satisfied that the Tribunal may still review that aspect of the decision as a default affirmation of the original decision.
32. Section 103 of the NDIS Act confers on the Tribunal the jurisdiction to review an internally reviewed reviewable decision.
33. Where a SOPS is varied after application is made to the Tribunal (as has happened here) section 103(2) provides that the review encompasses the new plan as well.
34. Per section 12 of the Administrative Review Tribunal Act 2024 I am satisfied the Tribunal has jurisdiction to conduct this review with respect to supports in Ms Schaefer’s SOPS.
35. I will address jurisdiction in relation to the unpaid invoices separately.
THE LEGISLATIVE FRAMEWORK
36. The NDIS Act sets out the provisions by which the Agency is created, and the Scheme and the manner in which it is to be accessed and administered, is described.
37. Chapter 1, Part 2 of the NDIS Act sets out the Act’s objects and the principles to be applied when undertaking actions under the Act.
38. The objects describe aspirations aimed at supporting the independence, choice and control, and social and economic participation of people with disability. This is to be achieved through provision of high quality and innovative supports that enable people with disability to maximise an independent lifestyle, and through the funding of reasonable and necessary supports to support participants in achieving their goals.[8]
[8] Section 3 of the NDIS Act
39. The principles stress the rights of people with a disability to dignity, to participation and to contribution to social and economic life and to the capacity to realise their potential in pursuit of their goals.[9]
[9] Section 4 of the NDIS Act
40. Both the objects and the principles state that in giving effect to the objects of the Act, or in exercising powers under the Act, regard is to be had to the need to ensure the financial sustainability of the Scheme.[10]
[10] Section 3(3)(b) and 4(17) of the NDIS Act.
41. Access issues are dealt with in Chapter 3, Part 1 of the NDIS Act. These provisions set out the criteria an applicant must meet (under either the disability requirements or under the early intervention requirements) in order to become a participant in the Scheme.
42. Part 2 of Chapter 3 sets out matters in relation to the development and administration of participants’ plans. Generally, a participant’s plan must include:
a. a statement of participant goals and aspirations which they have prepared;[11] and
b. a statement of participant supports which includes the general supports that may be provided and the reasonable and necessary supports that will be funded under the Scheme.[12]
[11] Section 33(1) of the NDIS Act
[12] Section 33(2) of the NDIS Act
43. Section 33(5) provides a list of all the factors the CEO (or other decision maker) must consider when deciding whether or not to approve a statement of participant supports. These are:
a. the participant’s statement of goals and aspirations;
b. relevant assessments conducted in relation to the participant;
c. being satisfied in relation to all the criteria set out in section 34;
d. having regard to the NDIS Rules made for the purpose of section 35 of the Act;
e. having regard to the principle the participant should manage his or her plan to the extent they wish;
f. having regard to the operation and effectiveness of any previous plan of the participant; and
g. the history of use of NDIS funds in earlier plans.
Section 34 of the NDIS Act sets out all the matters a decision maker must be satisfied of before determining a specific support should be included in a statement of participant supports. These matters are also reflected in Rule 2.3 of the Support Rules. Section 34 reads as follows:
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 support:
(aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(a) The support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations:
(b) The support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c) The support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) The support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) The funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) The support is an NDIS support for the participant.
Note: For the purposes of paragraph (aa)
(a) The time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b) A participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet wither of those requirements.
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 the paragraphs (1)(aa) to (f).
Section 35 of the Act sets out matters which Rules made in relation to the statement of participant supports may address. These (among other things) include methods or criteria to be applied in deciding supports which will be funded and specifically identifying those supports that will and will not be funded under the Scheme.
The relevant rules applicable to this review include:
a.National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth); (the Support Rules)
b.National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (the Transitional Rules);
The Agency also publishes Guidelines to assist in making decisions in accordance with the NDIS Act. The Guidelines are policy documents without legislative force and the Tribunal is not bound by them. However, it is generally held they should be applied where there is no conflict with the terms of the Act.[13] The relevant operational guidelines in this matter are:
a. NDIS Operational Guidelines – Principles we follow to create your plan (Plan Principles Guidelines) dated 27 April 2025
b. NDIS Operational Guidelines - Reasonable and Necessary Supports (the Support Guidelines) dated 28 March 2025.
c. NDIS Operational Guidelines – Including specific types of supports in plans (Certain Supports Guidelines) dated 2 December 2024
d. NDIS Operational Guidelines – Supports funded by the NDIS (Behaviour Support Guidelines) (dated 26 March 2025.
[13] Re Drake and Ministrer for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
THE APPLICATION OF THE AMENDING ACT
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (the Amending Act) has made significant changes to the legislative scheme through amendments to the NDIS Act and the addition of transitional rules. This Act commenced on 3 October 2024.
49. Item 129 of Schedule 1 of the Amending Act provides that sections 33, 34 and 35 as amended (all of which deal with the development of participant plans) apply to any old framework plans which are approved or varied on or after the Amending Act’s commencement.
50. Ms Schaefer’s plan is an ‘old framework’ plan for the purposes of the Act and was last amended and approved on 2 July 2025. This is after the amendments commenced, so in line with Item 129 of Schedule 1 of the Amending Act, the amendments introduced will apply to this review.
NDIS Supports
51. The term ‘NDIS support’ is a new term introduced by the Amending Act. A support may not be included in a statement of participant supports unless it is an NDIS support.’[14]
[14] Section 34(1)(f) of the NDIS Act
52. Section 10 of the NDIS Act provides that a support is an ‘NDIS support’ if it is declared to be so by the NDIS rules. Conversely, section 10 also provides that the NDIS rules may declare certain items not to be ‘NDIS supports’. As such, the definition of ‘NDIS support’ relies, in part, on the creation of ‘Category A’ NDIS rules which require the agreement of the Commonwealth and all States and Territories (Agreed Rules).[15] These rules may take some time to be settled.
[15] Supplementary Explanatory Memorandum, National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024
53. In the meantime, the Amending Act provides that until the commencement of the first Agreed Rules, the Minister may make transitional rules for the purpose of section 10 of the NDIS Act.[16] In making these rules, the Minister is obliged, to:
a. have regard to the objects and principles of the NDIS Act;[17]
b. have regard to the need to ensure the financial sustainability of the Scheme;[18]
c. ensure the Rules do not directly amend the text of the Act;[19]
d. be satisfied that declared supports are or are not appropriately funded through the Scheme.[20]
[16] Item 138 of Schedule 1 to the Amending Act
[17] Section 209(3)(a)
[18] Section 209(3)(b)
[19] Section 209(9)(c)
[20] Sections 10(2) and (4) of the NDIS Act.
54. The Transitional Rules have been made and provide that for the purpose of section 10 of the NDIS Act, Schedules 1 and 2 of the Transitional Rules set out those supports which generally are, and are not, ‘NDIS supports’.
55. This term, ‘NDIS Support’ also appears in the amended section of section 34 in that supports to be funded must be NDIS supports[21]. I have determined the amended form of this section applies.
[21] Section 34(1)(f)
The Agency’s position
56. It is the Agency’s position that;
a.the original request to move funding from behaviour supports to support co-ordination was made to avoid Agency management of that funding.[22] At the time the original request was made, behaviour support funding was the only Agency managed funding in the plan.
[22] Exhibit 2 at [53]
b.the Agency further asserts that Ms Schaefer has not provided any evidence which would satisfy the Tribunal that ‘the arbitrary transfer of funding from behaviour support to support co-ordination and psychosocial recovery coaching would meet the criteria in s 34(1)(aa) to (m) of the NDIS Act’. I take this to be a typographical error in that s34(1) does not have a paragraph (m).
c.with respect to the request for transport funding the Agency argued, in its Statement of Facts, Issues and Contentions, that there is insufficient evidence available to satisfy the requirements in:
i.s34(1)(c), (that the support must represent value for money);
ii.s34(1)(d) (the support must be effective and beneficial having regard to current good practice); or
iii.s34(1)(e) (the funding of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide).
However, early in the hearing the Agency conceded that it was satisfied transport, funded at level 1 funding, would be reasonable and necessary with respect to Ms Schaefer’s impairments. This was particularly so because of her impairment related difficulty in utilising public transport.
Ms Schaefer’s position
57. In response Ms Schaefer emphasised that she had had ‘no supports’ for the 9 months her plan had been Agency managed as she was either unable to find registered providers, or those registered providers available were either unsuitable, unable or unwilling to take her on as a client. She noted that she required more funding overall (including up to 24 hours a day of support) and especially more funding in the support co-ordination/psychosocial counselling area. She felt level 1 transport funding was inadequate.
58. I have considered various emails from, and statements made by Ms Schaefer with respect to this hearing. It appears from these that there is a fundamental misunderstanding on Ms Schaefer’s part as to the extent of supports the Scheme offers and the basis on which decisions about these supports are made. Her submissions include:
a.submissions to the Agency as to change of circumstances in which Ms Schaefer asserted the NDIA must grant 300 extra hours of funding for psycho-social recovery coaching to make up for the ‘disrupted progress’ caused by her plan being moved to Agency managed. No supporting evidence was provided in relation to this request. There are no progress reports or plans provided by Ms Schaefer’s preferred recovery coach, Ms Bartlett. Ms Schaefer considered sufficient justification to be the discovery that her NDIS funded occupational therapist had previously worked at the hospital at which her partner had died, causing her to be retraumatised.[23]
[23] Page 49 of Exhibit 4
b.submissions to the Agency that they were obliged to fund medical health assessments to assist Ms Schaefer defend a guardianship application brought in the Queensland Civil and Administrative Tribunal by her NDIS funded occupational therapist.[24]
[24] Page 52 of Exhibit 4
c.usage of funding allocated to other supports to purchase USB drives and education provided by The Agency Blue in relation to online marketing programs and formulating her cultural story for online publishing.[25]
[25] Page 66 of Exhibit 1
d.an email from Ms Schaefer to the NDIA dated 4 June 2019 advising a regular need for her to have access to 24 hour a day supports attaching a GP letter in support (the GP letter noted the need for 27 hours a week daily living and daily activity support and some therapies)[26]
[26] Page 444 of Exhibit 1
e.a further unsupported request for an increase in support hours from 75 hours per week to 150 hours per week, the provision of an electric scooter and other advanced technology and a computer.[27]
[27] Pages 83 and 86, 87 of Exhibit 1
f.timesheets from providers demonstrating regular usage of supports for 24-hour support due to the need for ‘companionship’ provided as ‘overnight support. [28]
[28] Page 449 Exhibit 1
g.submission of psychology invoices to NDIA when no funding was available for this service.[29]
[29] Page 495, 507, 511, 515, 518 of Exhibit 1
h.frequent accusations that failure by the Agency to provide funding for requested supports at the requested intensity constituted indirect discrimination, negligence and breach of fiduciary duty.[30]
i.oral submissions at hearing that she did not have enough funding to last her until her plan renewal in October 2025. A survey of current funding is set out below to counter this belief.
[30] Page 441, 444 of Exhibit 1
59. To be a participant in the Scheme is not to have access to an endless bucket of funding from which all needs may be met. Instead, the Scheme operates to address needs arising from a participant’s impairments through funding of ‘reasonable and necessary supports’ aimed at maximising a participant’s independence (among other things). It is also intended to operate in concert with other, mainstream health, community services and other informal supports. [31]
[31] Sections 4(11), s34, s3(2)(d) of the NDIS Act; the Plan Principles Guidelines and the Supports Guidelines
60. The setting of a goal by a participant does not mean the Scheme has an obligation to fund supports aimed at pursuing that goal. Only if a support is reasonable and necessary to address a need arising from an impairment (for which access to the Scheme was granted) will it be funded.[32]
[32] Plan Principles Guideline; s34(1)(aa) of the NDIS Act
61. I note that the NDIS Act requires that in making decisions about NDIS supports to be provided, a decision maker is obliged to have regard to the financial viability of the Scheme.[33]
[33] Section 3(3)(b) and 4(17) of the NDIS Act
62. A decision maker is also obliged to be satisfied (among other things) that the supports are:
a.necessary to address an impairment for which access to the Scheme was granted,[34]
b.relevant to achieving the participant’s goals,[35] and
c.value for money in that costs are reasonable relative to the benefits to be achieved and the cost of alternative support.[36]
[34] Section 34(1)(aa),
[35] Section 34(1)(a)
[36] Section 34(1)(c)
63. A decision maker must reach the requisite level of positive satisfaction about these matters in a reasonable and rational manner on the basis of material before them.[37] The funding of a particular support by the expenditure of public funds, must be justified as ‘reasonable and necessary’.[38]
[37] National Disability Insurance Agency and WRMF [2020] FCAFC 79 at [201]
[38] Ibid at [151]
64. Not all requested supports will always be considered ‘reasonable and necessary’ and hence, not all requested supports will be funded.[39] This reflects the manner in which the Scheme is intended to operate.
[39] Plan Principles Guidelines
65. The Agency advised the Tribunal of the currently available funding in Ms Schaefer’s plan:
a.Core flexible funding ($81,607.79 of $87,843.24 available);
b.Behaviour support ($14,494.32 of $14,494.32 available);
c.Improved Daily Living skills ($5,150.79 of $5,819.76 available)
d.Support Co-ordination and Psychosocial coaching ($6,583.63 of $18,178.80 available)
66. That there are so many categories of funding in which there are large residual balances suggest that funding in this plan has been underutilised to date. This may reflect the difficulty Ms Schaefer has had finding registered providers in her location but does demonstrate significant resources are still available to provide for her needs until the October 2025 review.
CONSIDERATION
67. The starting point for my consideration is section 33(5). I have considered those matters in s33(5) to which I am to have regard and am of the view the following are most relevant to this matter. I note that as the plan management issue has been resolved by the Agency, my need to consider 33(5)(e) to (g) is rendered unnecessary:
a. the participant’s statement of goals and aspirations;
b. relevant assessments conducted in relation to the participant;
c. being satisfied in relation to all the criteria set out in section 34;
d. having regard to the NDIS Rules made for the purpose of section 35 of the Act.
68. With respect to section 33(5)(a) Ms Schaefer’s current plan has a start date of 7 October 2024 (amended 2 July 2025), extends for the duration of a year to 6 October 2025 and lists her goals as follows:
a.To move to a new area where I feel safe;
b.To re-engage connection to my tribal country and family to increase my social, cultural and community participation, support my healing, which is integral to sustaining and enhancing my overall wellbeing.
c.To receive consistent supports in daily activities to maintain my independence that are culturally safe and reflect my cultural, spiritual, emotional, physical interconnection with my land that is my soul as well as my religious belief system
d.To attain my Masters degree and post graduate studies
e.To engage in therapy supports that enable me to be as independent as possible and undertake relevant assessments to ensure I have the assistive technology I need to maintain my independence, dignity, safety and overall wellbeing
f.To improve social networks to assist me to practice and protect my religious beliefs, values and connections.
69. With respect to section 33(5)(b), I have considered the medical and other letters provided by both parties, including assessments conducted in relation to Ms Schaefer as set out below:
a.Functional Capacity Assessment dated 5 July 2021 by Matthew Ebden, occupational therapist.[40]
[40] Page 114 to 143 of Exhibit 1
This ‘functional capacity assessment’ was completed four years ago and must be considered out of date. This report is noted to be based only on interview with Ms Schaefer and written from her perspective.[41] It is noted to have taken 1 hour in Ms Schaefer’s home and two further sessions by telephone. It does not appear that a formal assessment of Ms Schaefer’s observed capabilities was undertaken. Even apart from the age of this assessment I have concerns about its usefulness given the assessor’s approach.
[41] Page 114 of Exhibit 1
On the basis of an Abbreviated Life Skills Profile assessment Mr Ebden determined Ms Schaefer was socially withdrawn, had poor self-care, displayed moderately poor compliance with health services, had some anti-social traits and was overall operating with a high level of difficulty.
These difficulties were also reflected in a WHODAS assessment.
A Care and Needs Scale assessment suggested Ms Schaefer required assistance and cueing with basic ADL’s and social participation and required support for or monitoring of severe behavioural/cognitive disabilities. He formed the view Ms Schaefer could not be left alone at night.
Screening for cognitive disorders via a Saint Louis University Mental Status Examination resulted in a score of 12 out of 30, considered to indicate significant cognitive impairment.
Recommendations included physiotherapy, occupational therapy, exercise physiology, neuropsychology, psychology, equine therapy, podiatry, dietician, urology, psychiatry, psychosocial recovery coach and dental intervention, support workers up to 20 hours a day and various AT such as SD cards, electric bike, Cannon Camera, Rapid Spin Video technical support, and security alarm.
b.Report of Deidre Hill, occupational therapist, dated 21 May 2020[42]
[42] Pages 1 to 9 of Exhibit 4
Ms Hill assessed Ms Schaefer at home including an interview, administration of WHODAS and Care and Needs Scale and subsequent phone contacts, including on more than ten occasions when Ms Schaefer requested amendments to the report. Again, this is an aged assessment which appears to have been based on Ms Schaefer’s self-report.
Ms Hill recommended 14 hours of support per day, 7 days a week, support co-ordination, physio and regular exercise.
Ms Schaefer was noted to have requested transport to tribal lands and a security guard to keep her safe there, computer equipment, a folding e-bike, and equine therapy. It was not clear that Ms Hill recommended these or how these address needs that are attributable to Ms Schaefer’s impairments.
c.Letter of Robert Bright, psychologist, dated 23 September 2020[43]
[43] Exhibit 9
Mr Bright notes that Ms Schaefer has complex PTSD exacerbated by spinal and cervical injury as a consequence of a number of assaults in 2007 and 2016. She has an acquired brain injury arising from an MVA in Canada. When under stress Ms Schaefer is noted to be prone to mental confusion, panic attacks and dissociative PTSD response symptoms. She has cognitive deficits in concentration, attention and problem solving which limit her capacity to deal with daily requirements. Mr Bright was of the view her condition was ‘treatment resistant’. There is no evidence before the Tribunal as to interventions or treatments that have been provided, nor any input from a psychiatrist.
d.Letter from GP Dr Ahmed dated 29 July 2021[44]
[44] Page 18 of Exhibit 1
Written to support a study deferment, Dr Ahmed advised that Ms Schaefer reports significant distress from reportedly being a direct witness to the murder of her partner, on the background of a prior diagnosis of PTSD.
e.Letters from Dr Ahmed dated 28 April 2022[45]
[45] Pages 24 and 25 of Exhibit 1
Dr Ahmed identified a history of treatment resistant PTSD presenting in the form of low mood, anxiety and flashbacks and an acquired brain injury arising from a motor vehicle accident years ago. This leaves her with cognitive deficits. No information about past treatment was provided.
f.Letter of Christine Coop, senior occupational therapist dated 4 August 2024[46]
[46] Page 160 of Exhibit 1
Ms Coop wrote to clarify that over the time she had been involved in Ms Schaefer’s care she had seen multiple examples which she believed indicated Ms Schaefer’s ability to make decisions about personal, health, and financial matters was so compromised she would fail the general test for capacity under Queensland’s guardianship legislation.
As an example, Ms Coop noted she had observed Ms Schaefer stipulating terms of service delivery for providers that were impossible to meet, effectively hamstringing the assistance offered. When services did not meet Ms Schaefer’s expectations, Ms Schaefer responded in a verbally abusive fashion or by withholding payment. This had caused services to withdraw.
Following Ms Coop making a guardianship application in relation to Ms Schaefer, her services were terminated by Ms Schaefer with assertions of unconscionable/unethical and vindictive conduct[47].
[47] Pages 72-74 of Exhibit 4
I note that Ms Coop was in the middle of completing a functional capacity assessment when her services were terminated. The Tribunal has not been provided with a copy of this and it is unclear if it was completed.
g.Letter of Dr Eileen Gourley dated 28 June 2024[48]
[48] Page 486 of Exhibit 1
Dr Gourley writes that Ms Schaefer has a complex psychiatric history, including PTSD, generalised anxiety and panic attacks and acquired brain injury. Dr Gourley notes Ms Schaefer requires psychiatric assessment, occupational therapy assessment, psychological intervention and video hardware to assist with communication.
h.Incident report dated 4 September 2024 (unsigned)[49]
[49] Page 23 of Exhibit 4
The writer discussed accompanying Ms Schaefer to Mareeba Community Legal Service to seek assistance with respect to the application by Ms Coop for a guardianship order for Ms Schaefer. Ms Schaefer was noted to be able to calmly express her concerns, advise of the actions she had already taken to address the application (including obtaining medical reports about capacity) and being able to draft an enduring power of attorney document. She was noted to remain calm even when an advocacy service specifically declined to offer services to Ms Schaefer.
i.Report of Marissya, occupational therapist, Goal Coach Team dated 20 September 2024[50]
[50] Page 33 of Exhibit 4
Marissya indicated she was available to provide occupational therapy services for Ms Schaefer once her plan is plan-managed.
j.Letter of Dr Scott Radcliffe, GP, dated 23 October 2024[51]
[51] Page 36 of Exhibit 4
Dr Radcliffe noted Ms Schaefer had been suffering from significant anxiety, panic episodes, dizzy spells, confusional states and flashback trauma of her previous assaults related to NDIS service reduction. He writes in support of changing management of her NDIS plan from Agency managed due to the limited number of providers.
k.Report of Dr Vasei, GP, dated 17 December 2024[52]
[52] Page 450 of Exhibit 1
Dr Vasei had had two consultations with Ms Schaefer, one face to face and one by phone. He noted the following diagnoses: major depression, general anxiety, PTSD, panic disorder, physical assault, brain injury, MVA. Dr Vasei supported change of plan management from Agency managed to plan managed.
l.Report of Rebecca Fuller, Local Area Co-ordinator, dated 19 September 2024[53]
[53] Page 451 of Exhibit 1
Ms Fuller noted there were few Agency registered services in the Mareeba region and that Ms Schaefer was unable to use some of her past providers because of that limitation. Ms Fuller recommended a plan managed plan would provide more flexibility.
m.Letter from Ms Kenway and Dr Wilson, JCU Dental dated 15 November 2024
This letter noted clear signs of heavy bruxism which they noted was traditionally associated with stress and psychological trauma.
n.Report of Sarah Bonanno dated 6 February 2025[54]
[54] Page 501 – 503 of Exhibit 1
Ms Bonanno had been acting as Ms Schaefer’s complex support co-ordinator since 23 October 2024. Ms Bonanno noted that Ms Schaefer required services that would be able to take into consideration her complex behaviours, her disability needs and her cultural identification needs.
Of the multiple agencies Ms Bonanno had contacted, 6 declined to work with Ms Schaefer because of past behaviours, 7 could not work with her complex needs, and 14 had no capacity. Six services would work with her but were not registered and so were unable to while her plan remained Agency managed.
Ms Bonanno noted that the ongoing issues meeting Ms Schaefer’s disability needs and her cultural needs continued to prevent progress towards her NDIS goals. Ms Bonanno stated Ms Schaefer continued to require intense ongoing support.
Despite Ms Schaefer wishing to rely on this letter in her Tribunal proceedings Ms Bonanno was terminated by Ms Schaefer (by email to the NDIS dated 8 February 2025) after having been accused of ‘negligent misconduct, arrogance and bullying’. [55]
[55] Page 505 of Exhibit 1
o.Report of Carlie Owens, Client manager, FlexiChoice undated[56]
[56] Page 509-510 of Exhibit 1
Ms Owens wrote in support of Ms Schaefer’s request for plan management of her plan. She noted that Ms Schaefer had lost her access to supportive workers by transferring to agency management.
p.Extract from email of Carlie Owen, Flexichoice dated 26 February 2025[57]
[57] Page 521 of Exhibit 1
This email advised Ms Schaefer that as a result of treatment received from Ms Schaefer that day Flexichoice would be ceasing services immediately. It was noted the agency had a zero tolerance for abuse and threats.
q.Letter from Apels, Town & Country Legal, dated 24 January 2025[58]
[58] Page 40 Exhibit 4
Notification from Apels that in response to an email from Ms Schaefer, Mareeba Community Centre Inc. terminated all service arrangements between it and Ms Schaefer and barred Ms Schaefer from attending the centre and contacting its staff.
r.Email of Jonathon Imani dated 30 January 2025[59]
[59] Page 492 of Exhibit 1
Mr Imani explained he had been working with Ms Schaefer but had had to cease due to the change to Agency management of her plan. He indicated his success in relation to cultural understanding of Ms Schaefer’s needs and his willingness to return to work with Ms Schaefer.
s.Letter of Dr Mason, GP, dated 28 February 2025[60]
[60] Page 38 of Exhibit 4
Dr Mason wrote in support of Ms Schaefer’s request for a change in plan management noting the difficulties of finding supports in their area. In the ‘Past History’ section of his letter he notes ‘histrionic personality disorder, assault, temporomandibular joint dysfunction, choledocholithiasis, fibromyalgia, anxiety/depression, panic disorder and PTSD’
t.Letter from Ms Bede Campbell, director, Inclusive Experiences FNQ
Ms Campbell wrote to give support for the change from agency managed to plan managed and to request additional funding generally.
u.Risk screening by Ms Hersey, dated 30 June 2025[61]
[61] Exhibit 7
Ms Schaefer specifically asked the Tribunal to consider this document. Ms Hersey has assessed the presence of the following risks:
i.Severe mental health symptoms;
ii.Reduced emotional regulation or behavioural volatility;
iii.Impacts of past trauma on daily functioning;
iv.Cognitive fatigue, slowed processing or memory loss;
v.Difficulty following multi-step instructions;
vi.Poor impulse control or frustration tolerance;
vii.Unrecognised support needs;
viii.ABI contributing to conflict, self-harm or unsafe decisions;
ix.Culturally unsafe responses in services;
x.Disconnection from cultural community;
xi.Requirement for culturally appropriate supports;
xii.History of childhood or institutional abuse;
xiii.Triggered by environments, tone, gender of workers;
xiv.Social isolation and disconnection;
xv.High risk of exploitation, coercion or manipulation;
xvi.Unsafe community access or experiences of public harm;
xvii.Inability to engage with NDIS or other systems independently;
xviii.Overwhelmed by paperwork;
xix.Lack of access to advocacy;
Strengths were noted to include cultural identity or spiritual beliefs, trusted informal supports, willingness to engage with services and an ability to communicate preferences and boundaries.
v.Support co-ordination progress report undated by Karen Hersey[62]
Ms Schaefer requested the Tribunal give consideration to this document. Against each of Ms Schaefer’s goals the report notes:
Ms Schaefer feels she has regressed since being placed on Agency management and being unable to connect to her former supports of Ms Rona Bartlett, coach, Anne Atkinson, Raymond Condren, Stella Wason, Tim Yelland and Jonathon Imani. A further barrier was the difficulty of accessing trauma informed services that were culturally safe.
In her oral evidence Ms Hersey advised the Tribunal she formed this view after speaking with both the former recovery coach, Ms Rona Bartlett, and Ms Schaefer.
Discussion of reports – plan management
[62] Exhibit 6
I consider that these reports emphasise the difficulties Ms Schaefer has had in accessing services while her plan has been Agency managed. There is overwhelming support from her treating professionals for a change back to plan management. As the Agency has now agreed to this course, there is no need for me to consider this aspect.
Discussion of reports – behaviour supports
71. I also consider that the above communications support a finding that Ms Schaefer demonstrates unhelpful behaviours at times that appear to alienate service providers, either resulting in termination of her access to those services or in mutual termination of involvement. It is clear from Ms Bonanno’s letter dated 6 February 2025 that, aside from those incidents listed above, a further 6 local services declined to engage with Ms Schaefer as a result of previous behaviour. The risk assessment of Ms Hersey notes:
‘reduced emotional regulation or behavioural volatility, poor impulse control or frustration tolerance, and ABI contributing to conflict, self-harm or unsafe decisions.’
72. In her oral evidence Ms Hersey spoke about Ms Schaefer having ‘a hair trigger’ which is set off easily. Once triggered she noted that Ms Schaefer disconnects from what is being said and simply reacts in distress with yelling, abusive language and complete dysregulation. Ms Hersey has had to terminate calls to avoid causing further distress.
Discussion of reports – other issues
73. I note that the most recent functional capacity assessments in the hearing bundle were from assessments undertaken in 2019.[63] In the circumstances I consider these are too old to rely on as a reflection of current capacity. Much has changed since these assessments were undertaken. I have been advised that a new occupational therapy assessment is being arranged to support future planning.
[63] Page 114 of Exhibit 1 and page 1 of Exhibit 4
74. I note that there is no reporting or assessment from Ms Schaefer’s preferred recovery coach, Rona Bartlett. The Tribunal was also informed Ms Bartlett was unavailable to provide evidence directly.
75. These are unsatisfactory aspects of the evidence before the Tribunal.
Consideration of section 34 of the NDIS Act
76. Per section 33(5)(c), I must now consider whether I am satisfied in relation to all the mandatory factors in section 34(1) of the NDIS Act in relation to whether the supports requested (movement of funding from behaviour support to support-co-ordination and psychosocial coaching and transport at a higher level than level 1 funding) is reasonable and necessary and should be funded.
S34(1)(aa) – are the supports necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements or early intervention requirements. (the Note to the section provides that the time at which these requirements must be met is the time the decision maker approves the SOPS)
77. It has not been made clear to the Tribunal what the impairments are in relation to which Ms Schaefer obtained access to the Scheme.
78. The Agency’s Statement of Facts, Issues and Contentions advised that Ms Schaefer has been diagnosed with the following conditions:
a.acquired brain injury,
b.depression, anxiety, post-traumatic stress disorder;
c.fibromyalgia and fatigue;
d.migraines;
e.dizzy spells; and
f.bruxism.
79. I note that the occupational therapy report of Ms Hill issued on 20 May 2020 details PTSD from motor vehicle accident (MVA) and two assaults, resulting in extreme anxiety, back and neck pain from the assaults, amputation of two fingers of her left hand from the MVA, and fatigue.
80. The occupational therapy report of Mr Ebden records diagnoses of acquired brain injury, severe depression, anxiety, severe PTSD, fibromyalgia, neck, lower back and hand injuries and pain, severe migraine, neck pain, dizzy spells, chronic fatigue, bruxism. She was noted to take valerian. Mr Ebden suggested Ms Schaefer may have hypotension. He suggested her psychological condition had deteriorated further since the death of her partner and recommended referral to a psychiatrist to evaluate and make treatment recommendations.[64] I cannot see that this has occurred. Mr Ebden advised Ms Schaefer does not take medication as she does not trust pharmaceutical companies. Mr Ebden indicates Ms Schaefer has pain and fatigue arising from fibromyalgia.
[64] Page 135 and 138 of Exhibit 1
81. Mr Bright, psychologist, has the view that Ms Schaefer’s PTSD is treatment resistant. I am not aware the basis of this assessment, particularly in circumstances in which there is no opinion or evidence of management from a psychiatrist before me. There may be medications that could assist though it appears Ms Schaefer is unlikely to co-operate with those. Ms Schaefer subsequently accused Mr Bright of abuse and ceased attending on him. No details have been provided.[65] Mr Bright notes that when under stress Ms Schaefer is prone to mental confusion, panic attacks and dissociative PTSD symptoms. In his assessment Ms Schaefer has a severe disability in the domain of social relationships as a result of her psychosocial impairments.
Acquired brain injury (ABI)
[65] Page 52 of Exhibit 2
82. Considering Ms Schaefer’s acquired brain injury, the medical evidence referred to above establishes that this has resulted in a cognitive impairment which is permanent.[66] Ms Schaefer is noted to have difficulties with memory and concentration and Ms Hersey has assessed the brain injury as contributing to Ms Schaefer’s emotional dysregulation.
[66] Required by subsection 24(1)(a) and (b)
83. Having regard to the evidence contained in medical and allied health reports and in support worker records, I am satisfied that Ms Schaefer’s cognitive impairment has resulted in substantially reduced functional capacity to undertake self-care, self-management and social interaction as required by section 24(1)(c) of the NDIS Act.
84. I am satisfied that Ms Schaefer’s cognitive impairment does affect her capacity for social or economic participation (as required by section 24(1)(d)) as her emotional dysregulation results in inappropriate social behaviours at times and her concentration and memory issues would make employment difficult. I am satisfied that she will likely require NDIS supports for her lifetime as required by s24(1)(e).
85. I do not consider that this impairment meets the early intervention requirements.
Fibromyalgia
86. I have insufficient evidence before me in relation to fibromyalgia, but I accept general findings of physical impairment attributable to pain and fatigue. Due to the lack of evidence in relation to previous treatment or prognosis I am unable to make a finding that this impairment is permanent as required by section 24(1)(b) of the NDIS Act.
Amputation of two fingers of the left hand
87. This has been reported in the medical and allied health evidence as having occurred as a result of the motor vehicle accident in which Ms Schaefer sustained her acquired brain injury.
88. I am satisfied this is a permanent physical impairment but have insufficient information for me to make a finding in relation to substantially reduced capacity to undertake relevant activities[67], impact on social or economic participation[68] or need for NDIS supports[69].
Depression, anxiety and post-traumatic distress syndrome
[67] Section 24(1)(c) of the NDIS Act
[68] Section 24(1)(d) of the NDIS Act
[69] Section 24(1)(e) of the NDIS Act
89. I have considered Mr Bright’s assessment that Ms Schaefer’s PTSD is treatment resistant (suggesting permanency) but I am not satisfied I have sufficient evidence before me to be satisfied of this. There may be sufficient evidence on file with the Agency but it is not before me. I observe that Mr Ebden noted Ms Schaefer had not tried medication for her conditions and that he recommended Ms Schaefer be referred to a psychiatrist for an opinion owing to a deterioration in her condition following the death of her partner. I cannot see that this has been followed through by her GP. I consider that given its chronicity, treatment of Ms Schaefer’s PTSD (combined with asserted depression and anxiety) is likely to be difficult, but in the absence of evidence of psychiatric opinion I am unwilling to make a finding of permanency for the purposes of section 24(b) of the Act.
90. I note the amended explanatory memorandum for the Amending Act suggested the intention of section 34(1)(aa) was not to require the participant to prove their impairment on each occasion supports are considered,[70] but I consider this seems contrary to the words of the Act, and particularly, to Note (1) to section 24.
Other diagnoses
[70] Item 46 Revised Explanatory Memorandum - National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024
91. I have insufficient evidence before me in relation to dizzy spells, bruxism and migraines to make any findings in relation to the section 24 and 25 criteria.
92. Having found Ms Schaefer has a cognitive impairment which meets the disability requirements in section 24 of the NDIS Act, I must now consider whether the provision of the requested supports will address a need arising from that impairment.
Transport funding
93. During the hearing, the Agency agreed to provide level 1 funding for transport for Ms Schaefer to allow for the use of taxis up to $1,784 a year.
94. Given that a level of transport funding has been agreed by the Agency, I consider that the question for the Tribunal to determine is whether it is reasonable and necessary to provide funding for transport assistance at a higher level than level 1 funding.
95. The Certain Supports Guideline notes that a participant will generally be able to access funding through the NDIS to transport assistance if the participant cannot use public transport without substantial difficulty due to their disability. The three levels of funding available include:
Level 1: up to $1,784 per year for participants who are not working, studying or attending day programs but are seeking to enhance their community access.
Level 2: up to $2,676 per year for participants who are currently working or studying part-time (up to 15 hours per week), participating in day programs and for other social, recreational or leisure activities.
Level 3: up to $3,456 per year for participants who are currently working, looking for work, studying at least 15 hours per week and are unable to use public transport because of their disability.
96. Ms Schaefer argues that level 1 funding is not enough and that she requires at least level 3 funding, if not more. She seeks taxi funding from Mareeba to Cairns for herself and providers, and also funding to travel to cultural lands located at least 6 hours away. She notes she also requires a security guard for the trips to cultural lands due to the risk of assault there. She stated she was unable to use public transport as she does not feel safe. I am satisfied her cognitive impairments contribute to this inability.
97. In their oral evidence the Agency clarified for Ms Schaefer that there was some funding in the core flexible funding which allowed her to pay a provider to transport her to appointments, support activities or work.
98. The Agency also advised that providers of support were able to charge for reasonable travel when delivering reasonable and necessary supports in the home or community. These costs would not come out of Ms Schaefer’s Level 1 Transport funding.
99. Ms Schaefer’s evidence to the Tribunal is that when she travels locally, she generally does so with a support person because of her anxiety levels.
The oral evidence of Ms Atkinson was that when she attended to support Ms Schaefer, she transported Ms Schaefer in her own car to run errands, do shopping and travel to ‘the Creek’, which appeared to be important as a calming strategy for Ms Schaefer.
101. Ms Schaefer’s oral evidence established she considered the transport allowance was necessary in order for her preferred recovery coach, Ms Rona Bartlett, to travel from Cairns to see her.
As indicated by the Agency in earlier submissions, taxi travel allowable in the Level 1 funding is for the transport of Ms Schaefer only. Providers may charge for their own travel separately when providing services.
Consideration
103. Insofar as Ms Schaefer is not currently involved in face-to-face study or work at the moment, in my view there is no evidence before me to support a finding that a higher level of transport funding is reasonable and necessary to address a need arising from Ms Schaefer’s cognitive impairment. Her transport needs are currently able to be met by her support workers through her core support funding and her providers are able to charge separately for any travel costs they incur.
104. Noting that one of Ms Schaefer’s goals is to return to study to complete post-graduate education, if that circumstance changes in the future, a variation could be considered at that time.
105. I find that, with respect to the support of increased transport funding support, the criteria in section 34(1)(aa) is not met. Consequently, I find that transport funding at a level greater than Level 1 funding is not a ‘reasonable and necessary support’ to be included in Ms Schaefer’s SOPS.
106. On the basis of this finding, I do not need to consider the other criteria in section 34 or 33(5) with respect to this support.
Transfer of behaviour support funding to support-co-ordinator/recovery coach funding
The Behaviour Guideline provides that the aim of behaviour support is to understand the reasons for a participant’s behaviour and to implement positive strategies to help.
Behaviour support is defined as a therapeutic support that includes strategies and supports to look at the reasons why a participant may have behaviours of concern and to reduce them over time. Behaviour support that is an NDIS support must be provided by professionals with specialist skills in behaviour support who are registered NDIS providers.
The Agency also provides other online information for participants, including a page on support co-ordination.[71] This page advised that support co-ordination can be provided at three different levels: support connection, support co-ordination and specialist support co-ordination for complex situations.
[71] Support coordination | NDIS
The information page advises that the role of support co-ordination includes (among other things) to:
a.Help the participant understand their plan, including support budgets and kinds of things funding can be used for.
b.Plan and co-ordinate supports by helping the participant find providers, services and supports and scheduling services to work towards goals.
c.Connecting the participant with appropriate services and setting up service agreements and bookings.
d.Checking in with the participant to ensure the services are effective and making changes if necessary.
e.Providing reports to the NDIA as to the current plan and recommendations for the future.
The Agency also provides an information sheet online in relation to psychosocial recovery coaching.[72] This notes that a recovery coach is an NDIS funded worker with mental health knowledge who can help a participant find out about different services and supports, including mental health services, and how these can assist. The information sheet recommends that a participant have one or the other of a support co-ordinator and a recovery coach.
[72] PB Psychosocial Recovery Coach Information PDF.pdf
112. I have considered the available evidence in relation to Ms Schaefer and consider she would have difficulty in locating, accessing and arranging NDIS supports without a support co-ordinator. The evidence also suggests she has psychosocial impairments which may benefit from mental health services and a psychosocial recovery coach.
113. I also consider the evidence referred to above demonstrates that as a result of her psychosocial impairments Ms Schaefer has behaviours of concern that compromise relationships with service providers and other people in a manner that interferes with the support process.
114. I refer to the reports of Mr Ebden (noting severe behavioural and cognitive disability), Ms Coop (reporting Ms Schaefer responding to providers in a verbally abusive fashion), Ms Bonanno (recording 6 agencies who would not work with Ms Schaefer due to past behaviours), Ms Owens (terminating contact with Ms Schaefer due to abusive and threatening contact), Apels Lawyers (advising the Mareeba Community Centre terminated all services and barred future contact from Ms Schaefer due to behaviours), and the Risk Screen of Ms Hersey (noting reduced emotional regulation and behavioural volatility, poor impulse control and an acquired brain injury contributing to conflict). Ms Hersey’s oral evidence of observed dysregulation on Ms Schaefer’s part, confirmed her risk assessment.
115. There is no evidence before the Tribunal of any interventions which have been applied to assist Ms Schaefer in managing her behaviours of concern. The behavioural support budget in her current plan is entirely intact. Considering Ms Hersey’s recent risk assessment and oral evidence, it is apparent the behaviours of concern continue and interfere with successful and consistent service provision and progress towards Ms Schaefer’s goals.
116. I am satisfied on the basis of current evidence that Ms Schaefer continues to require the provision of behaviour supports to address these behaviours and that removal of funding for this support is not warranted.
117. I accept that Ms Schaefer also requires a support co-ordinator/psychosocial recovery coach and note there is still funding in her plan for this service. Her current plan is due for review by 6 October 2025.
118. At hearing it was suggested by Ms Lane, for the Agency, that if the Agency were provided with a progress report from Ms Schaefer’s chosen psychosocial recovery coach, Ms Rona Bartlett, and a psychosocial recovery plan, it may be in a position to also consider increasing the funds available for that service if that were necessary.
119. It was the oral evidence of Ms Hersey (current support co-ordinator) that she had never been provided with any plan which had been developed by Ms Bartlett, nor any progress reports from this practitioner. It was her belief Ms Bartlett has not provided service since Ms Schaefer has been under Agency management, although a quote for future service had been received.
120. On the basis of the above I find that the request to transfer funding from behaviour support to support co-ordination is not justified on current evidence and does not meet the criteria in section 34(1)(aa).
121. As I have reached this conclusion, I do not need to consider any other criteria in section 34 or 33(5) in relation to this requested change to Ms Schaefer’s SOPS.
Payment of Past Invoices
122. As noted above Ms Schaefer seeks an order from the Tribunal requiring the Agency pay the outstanding invoices of Anne Atkinson and the Incorporeal Charity of God Ltd dating back to 2023. I understand (and have been provided with correspondence from those services in relation to) the difficulties non-payment creates for them and their staff. I understand Ms Schaefer is fearful she may not be able to access services from these providers without payment.
123. While this may be true, the Tribunal has no general review powers, with its jurisdiction limited to those matters which are specifically conferred on it by legislation. A decision is a reviewable decision if an Act or a legislative instrument provides for an application to be made to the Tribunal for review.[73]
[73] s12 Administrative Review Tribunal Act 2024
124. With respect to the NDIS Act, section 103 of that Act provides an application may be made to the Tribunal in relation to internally reviewed, reviewable decisions.
125. Section 99 of the NDIS Act sets out all the decisions under the Act which are ‘reviewable decisions’. None of these involve any decisions in relation to payment of invoices.
126. In the course of the hearing the Agency undertook to consider the outstanding invoices as part of its usual claim management process if Ms Schaefer were to submit those invoices under the amended plan. The case officer in attendance, Mr Orchard, undertook to email the payments team to escalate the invoices for consideration of payment.
127. While I trust communication will be forthcoming shortly in relation to those payments, whether approved or not, it is not within the Tribunal’s power to become involved.
128. In relation to the matters in which the Tribunal does have jurisdiction, as I have reached the same conclusions as the decision under review, I will affirm that decision.
DECISION
The Tribunal affirms the decision under review pursuant to section 105(a) of the Administrative Review Tribunal Act 2024.
Date of hearing: 3 July 2025
Date final submissions received: 10 July 2025
Counsel for Respondent: Ms S Lane
Solicitors for the Respondent: Sparke Helmore Lawyers
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