Sheikh and National Disability Insurance Agency (NDIS) - [2025] ARTA 871

Sheikh and National Disability Insurance Agency (NDIS) [2025] ARTA 871 (30 June 2025)
Applicant/s:  Sheikh
Respondent:  National Disability Insurance Agency (NDIS)
Tribunal Number:                2023/2142

Tribunal:General Member N Purcell
Place:Sydney
Date:30 June 2025

Decision:The Tribunal, pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth) sets aside the decision under review and remits the matter for reconsideration in accordance with the following order:
1. The following capacity building supports are reasonable and necessary and should be included in the Applicant’s statement of participant supports (SOPS):
(a) 73 hours of physiotherapy (to replace the existing 60 hours)
2. The following supports are not reasonable and necessary and should not be included in the Applicant’s SOPS:
(a) 70 hours of Support Coordination
(b) Funding for Support Worker assistance (comprising approximately 25 hours ADL and 15 hours SECP per week)
(c) 9 days short-term accommodation (STA)
(d) Mobile phone (consumables funding)
(e)Laptop (consumables funding)
(f) 104 hours of hydrotherapy
(g) 104 hours of complementary or alternative medicine (CAMs)
(h) 69 hours of myotherapy
(i)65 hours of remedial massage
(j)52 hours of osteopathy
(k)52 hours of somatic therapy
(l)4 hours of psychiatry
(m)70 hours of neurofeedback
(n)4 hours of neurology
(o) 26 hours of neurolinguistic programming
(p) 52 hours of lifestyle and job coach
(q) 10 hours of ophthalmology
(r)Funding to build a ‘wellness room’.

4. All other supports in the Applicant’s SOPS dated 10 June 2025, excepting any one-off assistive technology supports already used, are to be replicated pro-rata from the date on which the supports specified above are included in the Applicant's SOPS.
5. The management of funding for reasonable and necessary supports under the Applicant’s plan is to remain the same as the management of funding for those supports as specified in the SOPS dated 10 June 2025.

....................[SGD]....................................................
General Member N Purcell
CATCHWORDS
PRACTICE AND PROCEDURE – NATIONAL DISABILITY INSURANCE SCHEME – request for confidentiality order – reasonable and necessary supports – Transitional Supports Rules – Parkinson’s disease – atypical Parkinson’s – dyslexia – atypical and dyslexia diagnosis not confirmed – inconsistent evidence.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Cth)
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 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024.
CASES
Beezley v Repatriation Commission [2015] FCAFC 165
Esber v The Commonwealth (1992) 174 CLR 430
Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250
McGarrigle and National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF [2020] FCAFC 79
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Huikeshoven v Secretary, Department of Education, Skills and Employment [2021] FCA 1359
VKKG and National Disability Insurance Agency (NDIS) [2025] ARTA 789
FSWN and National Disability Insurance Agency (NDIS) [2025] ARTA 114
SECONDARY MATERIALS
Operational Guidelines – Reasonable and Necessary supports, 28 March 2025.
Operational Guideline – Including Specific Types of Supports in Plans – Transport, 2 December 2024
Statement of Reasons
INTRODUCTION

Mr Mohsin Sheikh (the Applicant) lives in a suburb of Melbourne with his wife and three children, two of whom are adults. He completed tertiary studies in the United Kingdom and worked in Pakistan as a systems analyst prior to migrating to Australia in 2016 as a skilled migrant. He was diagnosed with Parkinson’s disease in 2020 and granted access to the National Disability Insurance Scheme (NDIS) in February 2021.
DECISIONS UNDER REVIEW
On 3 October 2022, a delegate on behalf of the Chief Executive Officer (CEO) of National Disability Insurance Agency (the Respondent) approved a statement of participant supports (SOPS) for the Applicant under section 33(2) of the National Disability Insurance Act 2013 (Cth) (NDIS Act).
On 30 December 2022, the Applicant sought internal review of the original decision pursuant to section 100(2) of the NDIS Act. On 8 March 2023, another delegate of the Respondent confirmed the original decision under section 100(6) of the NDIS Act (reviewable decision).
On 3 April 2023, the Applicant filed an application seeking external review by the Administrative Appeals Tribunal (AAT) pursuant to section 103 of the NDIS Act. The AAT was abolished on 13 October 2024 and the Administrative Review Tribunal (ART) began on the 14 October 2024. By virtue of the transitional arrangements, Mr Sheikh’s application was automatically transferred to the ART.[1]
[1] See Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).
The Respondent subsequently approved a SOPS pursuant to section 48 of the NDIS Act in plans dated 3 December 2024, 26 February 2025 and 10 June 2025 (Current Plan). Pursuant to section 103(2)(e) of the NDIS Act, the Applicant’s application for external review by this Tribunal is also taken to be a review of the decision to approve the SOPS in the current plan.
Supports funded and requested
The Applicant sought a range of supports as part of his application for review. The parties attended 5 confidential case conferences between 14 June 2023 and 29 November 2024. Following the final case conference on 29 November 2024, the Respondent agreed to fund some additional supports.
On 3 December 2024, a delegate of the CEO of the Respondent approved a SOPS which included the following supports totalling $190,539 for a 12-month period:
(b)25 hours per week of support worker assistance with daily living tasks at a 1:1 ratio of care. (The agency decided it was permissible for a family member employed by a NDIS Registered Provider to provide supports for up to 15 hours per week).
(c)15 hours per week of support worker assistance with social, economic and community participation (SECP) at a ratio of 1:1.
(d)70 hours per year of support coordination.
(e)60 hours per year of physiotherapy
(f)26 hours per year of speech pathology
(g)26 hours per year of psychology
(h)4 hours per year of chiropractic therapy
(i)Level 1 transport.[2]
[2] See E4, p2-3 and E6.
In February 2024, the Respondent received a Change in Circumstances request from the Applicant.[3]
[3] See E4, p3.
On 26 February 2025, the Respondent approved a SOPS totalling $262,456 for a 12-month period.[4] Core funding for support worker assistance appears to account for most of the increase in funding and totalled $227,728. The change in circumstances form was not before the Tribunal.
[4] See E4, p3 and E7.
On 4 June 2025, the parties reached agreement on several supports and the Applicant withdrew his request for other supports including a six-week holiday to Pakistan.[5]
[5] E4, p3.
On 10 June 2025, the Respondent approved a SOPS totalling $226,762 for a 12-month period.[6] Core funding totalled $187,406. The supports found to be reasonable and necessary were:
[6] See E4, p3 and E8.
(a)Consumables totalling $6,532.
(b)Activities of Daily Living (ADL) totalling $116,854
(i)3.6 hours per day assistance with self-care activities
(ii)3 hours per week with personal domestic activities
(iii)2 hours per month of house or yard maintenance.
(c)Social, Economic and Community Participation (SECP) totalling $64,020.
(i)2.15 hours per day
(d)Capacity Building totalling $39,356
(ii)Plan management
(iii)Support Coordination Level 2 – 70 hours per year
(iv)Level 1 Transport
(v)OT – 30 hours per year
(vi)Speech therapy – 26 hours per year
(vii)Psychologist – 26 hours per year
(viii)Other therapy (chiropractor) – 4 hours per year
The Applicant raised concerns repeatedly during the hearing about the change to his plan on 10 June 2025. It was his understanding that he could no longer use capacity building funds for myotherapy and remedial massage. He asserted that an Agency staff person advised him that he could use physiotherapy funds for those supports following the 26 February 2025 decision.
The Applicant’s advocate provided an email purportedly sent by a Planner/Delegate of the Respondent which included the following information:
• Physiotherapy: (info from Planning Conversation Tool provided to Mohsin by Planner/Delegate)
Parkinson's Disease is a progressive neurological disorder caused by the death of dopamine-producing neurons in the brain. The exact cause is unknown, but it leads to complications such as movement issues, balance problems, cognitive impairment, mental health challenges, physical pain, muscle spasms, tremors, and sleep disturbances. Mohsin's case is atypical as medications are ineffective for him. He cannot take prescribed medications because they worsen his symptoms. Consequently, he suffers from constant pain, muscle tremors, spasms, impaired coordination, and poor balance, leading to physical, emotional, and mental exhaustion. Mohsin's pain primarily stems from uncontrollable muscle spasms and tremors. He often tries to stretch his muscles for relief, with varying success. Continued funding for physiotherapy, including hours for hydrotherapy, myotherapy and remedial therapies, will support his ADLs and IADLs as his capacity declines. This will help him remain safely at home and prevent additional travel barriers. (Tribunal’s emphasis).[7]
[7] See E10.
The Tribunal is unable to determine exactly who provided this information. It accepts the possibility that a staff person from the agency advised the Applicant, either orally or in writing, that he could use funding for physiotherapy for myotherapy and remedial therapies. If this occurred, the Tribunal is also satisfied that the information did not reflect the Respondent’s official position regarding those therapies and represents a miscommunication by an individual staff person which may have led to a misunderstanding between February 2025 and June 2025.
It is unclear whether the Applicant used his physiotherapy funding for other therapies during the short intervening period between plans. The Respondent did not indicate any intention to take further action pursuant to section 46 of the NDIS Act.
In any event, the Tribunal repeatedly explained to the Applicant that the Tribunal would review the decision and the Tribunal’s decision would effectively override the Respondent’s decision of 26 February 2025 and 10 June 2025.
Issues in dispute
The issues in dispute at hearing include the following:
Core Supports
(a)9 days (3 x 3 days per year) for short-term accommodation (STA)
(b)Mobile phone (consumables funding)
(c)Laptop (consumables funding)
Capacity building supports
(d)104 hours of hydrotherapy
(e)104 hours of complementary or alternative medicine (CAMs)
(f)69 hours of myotherapy
(g)65 hours of remedial massage
(h)52 hours of osteopathy
(i)52 hours of somatic therapy
(j)4 hours of psychiatry
(k)70 hours of neurofeedback
(l)4 hours of neurology
(m)26 hours of neurolinguistic programming
(n)52 hours of lifestyle and job coach
(o)10 hours of ophthalmology
Capital supports
(p)Funding to build a ‘wellness room’.
The Tribunal observes that the request for therapy, most of which is ‘hands-on’, totals 612 hours per year. Allowing for holidays, this equates to approximately 2 hours of therapy per day including weekends.
The hearing
The Applicant was supported at the hearing by Ms Horne-Spalling, a disability advocate from ADEC. He was also assisted on the second day of hearing by his support coordinator Ms Zoe Halligan, after she gave oral evidence. This issue is discussed further below. The Applicant received legal advice from Victoria Legal Aid prior to hearing.
The Respondent was represented by Ms Amy Douglas-Baker of Counsel and instructed by Mills Oakley lawyers.
The hearing was conducted by video over 2 days. The following witnesses gave oral evidence at the hearing:
(a)the Applicant
(b)Support Worker, Ms Tiffany Kerley
(c)Physiotherapist, Mr Simon Ashton
(d)Support Coordinator, Ms Zoe Halligan
(e)Physiotherapist, Mr Paul McCann
(f)Occupational Therapist (OT) / Hand therapist, Ms Melissa Whitten
(g)Independent OT, Ms Phi Van Houston
In arriving at its decision, the Tribunal has considered all the written evidence provided in the joint hearing bundle comprising 663 pages (admitted and marked ‘JHB’) and the oral evidence given at the hearing. The following documents were also admitted into evidence:
(a)E1 - Second email statement from support worker, Ms Kerley
(b)E2 - Applicant’s additional submissions regarding request for confidentiality / pseudonym order
(c)E3 – Respondent’s chronology of tribunal events and Applicant’s engagement with services
(d)E4 – Respondent’s summary of issues in dispute, dated 10 June 2025
(e)E5 – Email from Ms Horne Spalling confirming receipt of first statement from Ms Kerley on 18 December 2023.
(f)E6 – Applicant’s plan dated 3 December 2024
(g)E7 – Applicant’s plan dated 26 February 2025
(h)E8 – Applicant’s plan dated 10 June 2025
(i)E9 – Progress note from Dr Alex Yeung of Royal Melbourne Hospital, dated 3 June 2025
(j)E10 – Email from Applicant’s advocate dated 12 June 2025 regarding planning conversation re February 2025 plan and question of hydrotherapy, myotherapy and remedial massage being included.
(k)E11 – Applicant’s closing submissions dated 12 June 2025
(l)E12 – Applicant’s list of supports and other submissions dated 3 June 2025
(m)E13 – Letter from Applicant’s GP dated 15 June 2025
(n)E14 – Letter to Tribunal from Applicant dated 15 June 2025
(o)E15 – Letter from Dr Nagao dated 17 June 2025
(p)E16 – Letter from Dr Yeung dated 18 June 2025
(q)E17 – Applicant’s handwritten notes during hearing.
(r)E18 – Respondent’s Statement of Facts, Issues and Contentions.
The Tribunal will refer to the evidence that is directly relevant to the determination of this matter, including an assessment of the weight that should be given to the evidence.
Role of the Tribunal
In reviewing the decision:
(27)the Tribunal stands in the shoes of the delegate/internal reviewer and must make the correct or preferable decision based upon the evidence and other material before it;[8] and
[8] See Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [37]-[38], [45]-[46] (Kirby J), [99] (Hayne and Heydon JJ), [143] (Kiefel J). Esber v The Commonwealth (1992) 174 CLR 430 at 440; Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250 at [51]; QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.
(53)the scope of the Tribunal’s jurisdiction is determined by reference to the scope of the internal reviewer’s powers under section 100 of the NDIS Act, which is in turn informed by the scope of power under section 33(2) of the NDIS Act.[9]
[9] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 at [7].
The relevant provisions under the new Administrative Review Tribunal Act 2024 (Cth) (ART Act) are sections 54 and 105.
INTERLOCUTORY ISSUE
Request for a Confidentiality Order
On 21 January 2025, the Applicant’s disability advocate wrote to the Tribunal with the following request:
The Applicant wishes to advise all parties that they wish to apply for pseudonym to be applied to their ART review matter.
Give the matter has been timetabled to hearing, the Applicant wishes to make the application based on the following:
Due to cultural and privacy concerns the Applicant wishes to have a pseudonym applied to their case.
Due to the sensitive nature of the supports in dispute, the Applicant wishes to apply to the Tribunal for a pseudonym.
Due to the Applicant having limited privacy in the home, the Applicant wishes to apply to the Tribunal for a pseudonym to be applied in their matter.
On 31 January 2025, the Tribunal made the following direction in response to the Applicant’s request:
The Tribunal directs:
1. On or before 14 February 2025, the Applicant must give the Tribunal and Respondent written submissions which provide specific details or reasons for an order under section 70 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), noting the considerations which the Tribunal must have regard to under section 71(2) of the ART Act.
Notation: The matter will be listed for an interlocutory hearing at a date to be fixed to determine the matter.
The Applicant did not comply with the direction.
On 8 April 2025, the Applicant’s disability advocate sent a further email raising a number of issues related to the hearing. She also wrote:
The Applicant has asked that a pseudonym be applied to this matter given the sensitive nature of some support requests. A formal request has been previously lodged for consideration via email and a verbal discussion in the previous directions hearing.
On 29 May 2025, the Tribunal held a telephone directions hearing to explain the hearing process and answer any logistical or practical questions prior to final hearing. The Tribunal noted that the Applicant had not provided additional information for a determination to be made under section 70 of the ART Act. The Applicant was invited to provide further reasons/submissions in support of a confidentiality order, which would be considered by the Tribunal at hearing.
On 6 June 2025, the Applicant’s disability advocate sent a further email advising that the Applicant no longer wished to use a hearing room that has been arranged for him at the Melbourne registry, noting that the Tribunal would appear from Sydney via video. She also said:
The Applicant wishes to notify the Tribunal they wish to apply for a pseudonym to be applied to the matter. Due to the sensitive nature of some previously requested supports by the Applicant there is a significant risk to family relations, should the Applicant not be anonymous and have his privacy protected. The applicant has teenage children who he does not want to be privy to discussions that may occur at the hearing. Due to very strict cultural customs and expectations in the Applicant’s community, not having privacy regarding in this matter would cause very significant cultural risks for the Applicant, including isolation, ridicule and embarrassment. Some of the topics of conversation referred to in the Van Houston OT report would have serious implications for the Applicant and his family and may impact his standing in the community, should they be made public. The Applicant hereby requests the Tribunal member to please award the Pseudonym to this matter and is seeking confirmation prior to the Hearing.

Following introductory remarks, an explanation of the hearing process and opening submissions on the first day of hearing, the Tribunal outlined the procedural history above. The Applicant indicated that further submissions had been emailed to Registry shortly prior to commencement of the hearing. The Tribunal stood the matter down to consider those submissions.
The Applicant’s further submissions by email dated 9 June 2024 state:
Dear Tribunal Member,
I hope this letter finds you well. I am writing to formally request the ability to use a pseudonym in the tribunal in accordance with my sincerely held religious beliefs.
My faith places significant importance on certain things and I would like to have a Pseudonym to protect myself and family. I would like to not have my community discriminate as I am no longer able to provide for my family which is a requirement under the Quran. As a practicing adherent, maintaining anonymity in this regard is essential to my spiritual integrity and personal well-being. This request aligns with my commitment to uphold the tenets of my faith while trying to maintain my position in my family and community.
I appreciate that tribunal strives to create an inclusive and respectful environment for individuals of diverse backgrounds. Religious freedom is a fundamental right protected under privacy protections laws as well as anti-discrimination laws based on religion, gender and other attributes. By permitting the use of a pseudonym, Your Honour, it would be fostering inclusivity and ensuring that all individuals can engage without compromising their beliefs.
I would be grateful for the opportunity to discuss this matter further and explore any necessary steps to facilitate the request. Please let me know how we might proceed with this accommodation.
Thank you for your time and understanding. I look forward to your response.
Sincerely,
Mohsin Sheikh[10]
[10] E2.
Legislation and practice directions
Sections 69, 70 and 71 of the Administrative Review Tribunal Act 2024 relevantly provide:
69Hearings to be in public unless practice directions or Tribunal order requires otherwise
General Rule
(1) The hearing of a proceeding in the Tribunal must be in public.
Note: The hearing of a proceeding is the substantive hearing of the matter before the Tribunal. Directions hearings do not need to be in public (see definition of hearing of a proceeding in section 4).
Exception – practice directions may require private hearing
(2) Despite subsection (1), in the circumstances specified in the practice directions:
(a) the hearing of part of the hearing is to take place in private; and
(b) only the persons specified in the practice directions may be present
Exception – Tribunal may require private hearing
(3) Despite subsection (1), the Tribunal may, by order:
(a) Direct that the hearing or part of the hearing is to take place in private; and
(b) Give directions in relation to the persons who may be present.
Note:The power must be exercised in accordance with section 71.
70Tribunal may restrict publication or disclosure of information
Information about parties, witnesses and others
(1) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:
(a) information tending to reveal the identity of:
i.a party to or witness in a proceeding in the Tribunal; or
ii.any person related to or otherwise associated with any party to or witness in a proceeding in the Tribunal; or
(b) information otherwise concerning a party, witness or other person mentioned in paragraph (a).
Note 1:The power must be exercised in accordance with section 71.
Note 2:Breach of a non-publication or non-disclosure order is an offence (see section 119).
Information relating to a proceeding
(2) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of information that:
(a) relates to a proceeding in the Tribunal; and
(b) is any of the following:
i.information that comprises evidence or information about evidence;
ii.information given to the Tribunal.
Note 1:The power must be exercised in accordance with section 71.
Note 2:Breach of a non-publication or non-disclosure order is an offence (see section 119).
(3) Without limiting subsection (2), the order may prohibit or restrict the publication or other disclosure to some or all of the parties to the proceeding.
Order can be made on application or on Tribunal’s initiative
(4) The Tribunal may make an order under this section on application by a person or on its own initiative.
71Requirements for Tribunal orders about hearings, publication and disclosure
Practice Directions
(1) In making an order under subsection 69(3) or section 70, the Tribunal must comply with the requirements (if any) specified in the practice directions.
Considerations
(2) In considering whether to make an order under subsection 69(3) or section 70 in relation to a proceeding, the Tribunal must have regard to the following:
(a) the principle that it is desirable that hearings of proceedings in the Tribunal are held in public;
(b) the principle that it is desirable that evidence given before the Tribunal is made available to the public;
(c) the principle that it is desirable that evidence given before the Tribunal and the contents of documents given to the Tribunal are made available to all the parties to the proceeding;
(d) any reasons in favour of making an order, including the following:
i.in any case—the circumstances of the parties to the proceeding and other persons connected to the proceeding;
ii.in any case—the harm (if any) that is likely to occur to a person if the order is not made;
iii.in relation to an order under section 70—the confidential nature (if any) of the information;
(e) any other matters that the Tribunal considers relevant.
The Administrative Review Tribunal (Common Procedures) Practice Direction 2024 outlines the types of hearings that must be held in private, as required by law. NDIS matters are not included.[11]
[11] P 24-25.
The Administrative Review Tribunal, Publication of decisions policy (11 December 2024) also provides relevant guidance. Part 2.2 notes, “Publishing decisions helps us achieve our objective of providing a mechanism of review that improves the transparency and quality of government decision-making, and promotes public trust and confidence in the Tribunal. Part 4 further states:
4.1 A written decision is not published if:
(a) any legislative provision prohibits the publication of the decision;
(b) a Tribunal member make a direction by order under section 70 of the ART Act to the effect that the decision, or part of the decision, not be published; or
(c) the extent of the editing required to comply with non-disclosure requirements renders the written decision unintelligible.
4.2 Generally, a Tribunal member may make a direction by order under section 70 of the ART Act that a decision is not to be published if satisfied, having regard to the considerations in section 71(2), that in the circumstances of the case the harm arising from the publication of the decision outweighs the public interest in publishing the decision.
Part 5 concerns preventing the publication of personal information that could create a risk of identity theft, the identification of a vulnerable person or any other misuse of information. Accordingly, under part 5.1(b) Tribunal members:
(i) must only include information about a party, witness or other person in their reasons for decision if that information is relevant to the findings or necessary for the cogency of the reasons; and
(ii) must not, in general, set out in full, unique personal identifiers such as dates of birth, dates of anniversaries, current or past residential addresses, telephone numbers, email addresses or other unique numbers, including bank account or credit card numbers, motor vehicle registration or driver’s licence details, or Centrelink, child support, Medicare, passport or tax file numbers.
Legal principles regarding confidentiality orders
Relevant principles regarding the making of confidentiality orders were summarised by the Tribunal’s predecessor Tribunal in Azzopardi and Secretary, Department of Social Services (Social services second review) [2019] AATA 105 (8 February 2019) and include the following:
5. It will be clear from the express terms of the Act that, unless there are clear
reasons why confidentiality orders should be imposed, hearings and decisions
should be open to the public or made public. It is from this point that any
consideration of the issuing of confidentiality orders must proceed…
6. Where there is a broad public interest in preserving the confidentiality of
names or the positions or details of individuals or companies, such orders can
be granted, especially if the order is one with only short-term application…
7. Similarly, it may be appropriate for confidentiality orders to be made where
matters relate to Protection Visas or refugee claims or identification of the
names of children involved in court proceedings.
…
9. In past cases the Tribunal has made orders suppressing names or granting
pseudonyms in other instances, such as: prejudice to future employment
prospects; the need to avoid publicity to assist rehabilitation; being prejudicial
to reputation; adverse impact on business activities; where stay applications
were on foot; where third parties could be identified or where prejudice to
criminal proceedings may occur.
10. However, the preferable position is for the business of the Tribunal to be
conducted in public…
…
13. Given the clear provisions of the Act, it is incumbent upon applicants for
administrative review to understand that the default position will always be in
favour of open hearings and maximum disclosure… Applicants seeking a
confidentiality order to redact their names from public view bear the onus to
establish that they have good grounds for this… As this Tribunal has said,
their “case must be sufficiently strong to take the case out of the ordinary”.
14. Furthermore, in doing so, such a grant must be shown to be in the public
interest…
…
16. As the Tribunal has noted, there are some areas of public administration
where a degree of confidentiality is necessary for the effective operation and
discharge of the underlying public policy objectives. However the Social
Security Act 1991 is not one of those. Indeed, to the contrary, there is a clear
public interest in seeing that its operations are open, transparent and subject
to public scrutiny…
17. The protection of privacy is an important public policy objective, even within
the ambit of the Australian system of “open justice”, and this is well
understood by the Tribunal.
18. On the other hand, secrecy in the proceedings of courts and tribunals is
obviously corrosive of public understanding of, and trust in their operations. In
this respect the Tribunal has given greater weight to the “openness principle”
and ensuring that its decision-making is “conducted and seen to be conducted
in a transparent and open manner”...
As the Tribunal observed in Labrino v National Disability Insurance Agency [2023] AATA 1985 (6 July 2023):
In NDIS matters there will often and inevitably be evidence about an applicant’s
health, impairments, physical and psychosocial well-being, and capacity to
participate in activities of daily living. Frequently, medical reports and allied health
reports in NDIS cases refer to sensitive aspects of a person’s history. This is not
isolated to matters in the NDIS Division, as Senior Member Parker observed in
XCFB and National Disability Insurance Agency [2022] AATA 4121 (2 December
2022 at [13]: “… this [is] often a necessary feature of applications arising in other
Divisions of the Administrative Appeals Tribunal (that is, other than the NDIS
Division), in particular in the Veterans Appeals Division or applications involving
decisions about claims for workers compensation or disability support pensions,
reviewed by the General Division. The Tribunal observes that it was not
uncommon in such matters for the Tribunal’s Reasons for Decision to be published
containing information that openly identifies an individual person by name and sets
out the medical history in detail”.[12]
[12] At [8].
The Federal Court decision of Huikeshoven v Secretary, Department of Education, Skills and Employment[13] provides a useful summary of the common law principles regarding open justice and applications for suppression and non-publication orders in Commonwealth courts. The Tribunal notes the relevant legislative provisions are different to those applicable to this Tribunal.
[13] [2021] FCA 1359
Interlocutory decision on request for confidentiality order
At the resumption of the hearing on the first day, the Tribunal informed the parties that it had considered the Applicant’s submissions and noted that whilst matters of religion may be sensitive, it was not persuaded that there was sufficient reason to depart from the principle contained in section 71(2) of the ART Act that it is desirable that hearings are held in public and evidence made available to the public.
The Tribunal explained that it would keep an open mind as the hearing progressed and the Applicant could make further submissions as required. The Tribunal provided brief oral reasons for declining to make the order, referring to the Tribunal decisions mentioned above, and explained it would provide written reasons as part of its final decision.
Relevant to these proceedings, the principles that it is desirable that hearings of proceedings in the Tribunal are held in public and that evidence given before the Tribunal is made available to the public needs to be weighed against the circumstances of the Applicant and his family and the harm (if any) that is likely to occur to the Applicant if the order is not made.
The Tribunal observes that the Applicant’s request for a ‘sensitive’ support was withdrawn some time prior to hearing. The Tribunal has no reason to traverse the evidence that pertains to that support in this decision as it is no longer in issue.
The Applicant did not provide any supporting evidence regarding his assertions of discrimination that he is likely to face in his community or because of his religious beliefs. There is no corroborating evidence about the harm, if any, that is likely to occur if an order is not made. There was no evidence that the Applicant regularly attends any religious and/or cultural events or that he has particular standing in the Pakistani-Australian and/or Muslim community.
The Tribunal does not accept the assertion that a pseudonym would protect the Applicant from discrimination based on his unemployment status. The Applicant has not worked since 2020, he is driven to social engagements by a support worker and his wife has commenced paid employment for the first time in recent years because he no longer works. For these reasons, the Tribunal is satisfied that the Applicant’s unemployment status is known within his community. The Tribunal does not accept that the Applicant necessarily experiences discrimination from his community because of his unemployment.
The Tribunal does not accept the implication that by refusing to grant a confidentiality order, the Tribunal might somehow undermine an inclusive and respectful environment for individuals of diverse backgrounds and/or that it has required the Applicant to compromise his religious beliefs as part of his application for review. It is a matter for the Applicant what supports he requests, what evidence he provides to the Tribunal as justification for those supports and whether those supports accord with his own religious beliefs and customs.
While the Tribunal’s discussion of certain supports and/or evidence in its decision may cause the Applicant embarrassment, there was insufficient evidence to satisfy the Tribunal that it takes his case outside the ordinary discomfort that most applicants likely experience when information that is personal to them is publicly discussed and decided upon. The Tribunal avoids gratuitous disclosure of sensitive information unless such disclosure is central to a finding of fact. As an essential public service, the Tribunal is of the view that NDIS decisions regarding the allocation of public money to fund reasonable and necessary supports, which routinely run to tens, if not hundreds of thousands of dollars per year in an individual’s plan, require public scrutiny unless there is a clear legislative prohibition or compelling reasons supported by evidence.
The Tribunal is not satisfied on the evidence provided that the Applicant’s circumstances are unique or unusual in the Australian context, or that he is likely to experience harm in the manner claimed.
For these reasons, the Tribunal declines to make a confidentiality order pursuant to section 70 of the ART Act.
DIAGNOSIS
Atypical Parkinson’s
The Applicant told the Tribunal he was diagnosed with atypical Parkinson’s in late 2020. He further explained that medications for Parkinson’s disease like Levodopa, Safinamide and Rigantine patches don’t work for him. The Applicant said he suffered “very horrific side effects” including nausea, drooling, fatigue and falling over.[14]
[14] Applicant’s oral evidence.
Dr Nagao, in her letter to the Respondent dated 1 December 2022 confirmed the Applicant’s diagnosis of Parkinson’s Disease and said the Applicant “has been poorly responsive to medications or has developed side effects to them”. She also wrote “alternative therapies including myotherapy, remedial massage, biofeedback and neurorehabilitation through a chiropractor have improved his range of hand movement, dexterity, pain and emotional wellbeing”.[15] It is unclear how Dr Nagao formed her view about the benefits of therapy beyond the Applicant’s self-reports.
[15] JHB, p83.
In her letter dated 18 August 2022, Dr Nagao noted the Applicant attended his appointment with her “immediately after a remedial massage session and states that this is his best clinical state”. She noted “he has prominent subjective cognitive concerns”, “minimal improvement on levodopa” and “feels that safinamide has improved his hand stiffness but cause pruritus and urinary frequency”.[16] Dr Nagao thought “it is possible the urinary symptoms are secondary to his underlying Parkinson’s rather than safinamide” and thought it worthwhile to seek a urology opinion.[17]
[16] JHB, p137.
[17] JHB, p138.
Finally, on 3 August 2023, Dr Nagao wrote that she “reviewed Mohsin for right sided parkinsonism, dystonia, anxiety and tics”. The Applicant reported an increase in involuntary movements following a prescription of pramipexole ER 0.375mg and a previous trial of Madopar aggravated his dystonia.[18]
[18] JHB, p466-467.
Despite cuts to his therapy funding in his NDIS plan about 10 months prior, Dr Nagao noted:
Examination was unchanged from last review:
Right upper limb mild rigidity. Right upper limb pronation-supination rest tremor, also on sustained posture without reemergence. Tremor settles with action. Exaggerated slowness and atypical interruptions on finger taps. No left hemibody bradykinesia. Gait - good stride length, reduced right arm swing. Turns well. No tics.[19]
[19] JHB, p466-467.
The Tribunal noted that many of the documents in the JHB referred to atypical Parkinson’s. Th Applicant and his treating practitioners appeared to rely on this diagnosis as the reason for many of the alternative therapies requested or recommended. For example, in his closing submissions, the Applicant wrote:
Atypical Parkinson’s disease, especially when paired with Young Onset Parkinson’s, is not only rare but also deeply misunderstood. I required tailored interventions that fall outside the conventional NDIS categories. I am not only seeking appropriate funding – but more importantly, the restoration of my choice and control, which was removed without due process.[20]
[20] E11.

The Tribunal explained to the Applicant that it understood a diagnosis of atypical Parkinson’s would only be made after medication trials. Therefore, it was unlikely atypical Parkinson’s would be diagnosed in the first instance. The Tribunal sought confirmation from the Applicant when his diagnosis of Parkinson’s Disease was reviewed and updated to atypical Parkinson’s, noting it had been unable to locate any document in the hearing bundle confirming the diagnosis.
The Applicant provided a progress note from Dr Alex Yeung dated 3 June 2025 which mentioned “early onset PD”, noting the Applicant has “had multiple intolerances and side effects to standard Parkinson’s disease therapies. Today he had some cognitive fluctuations most likely due to the fact he took an extra dose of CBD oil this morning to help with his pain”.[21]
[21] E9.
The Applicant was permitted time after the hearing to provide a letter from his specialist confirming a diagnosis of atypical Parkinson’s. On 15 June 2025, the Applicant’s GP Dr Sayed Kazmi wrote:
Mr Mohsin Sheikh is under specialist neurological care the Royal Melbourne Hospital. He presents with a complex movement disorder consistent with atypical Parkinson disease characterised by dystonia, tremors, cognitive impairment, rigidity, significant muscle stiffness with poor response to standard Parkinson’s medications.
Mr Sheikh has trialled multiple Parkinson’s related medications over several years with minimal clinical improvement. In many cases, he has experienced intolerable side effects, limiting ongoing pharmacological treatment options.[22]
[22] E13.
On 17 June 2025, the Applicant’s neurologist Dr Nagao wrote:
Mr Sheikh was diagnosed with Parkinson’s disease in 2021 by A/Professor Andrew Evans at the Royal Melbourne Hospital. I first reviewed him in April 2020. Symptoms began in late 2020.[23]
[23] E15.
On 18 June 2025, Dr Yeung from the Royal Melbourne Hospital wrote the Applicant “was diagnosed with early onset Parkinson’s disease in 2021 at our clinic”.[24]
[24] E16.
The Tribunal observes that neither of the Applicant’s treating specialists wrote ‘ayptical’ Parkinson’s in their correspondence immediately after the hearing, despite a clear request from the Tribunal to the Applicant for confirmation of the ‘atypical’ diagnosis. In these circumstances, the Tribunal is not satisfied on the evidence that the Applicant has a diagnosis of atypical Parkinson’s disease. The Tribunal is satisfied he has a diagnosis of early onset Parkinson’s disease.
Dyslexia
The Applicant also claimed to have dyslexia. There was no evidence before the Tribunal confirming a diagnosis of dyslexia. OT Ms Stephane Tivey wrote in her report dated 24 January 2024 “prior to the onset of his Parkinsons disease [dyslexia] was well managed and he was able to read and write. Since the onset of his Parkinsons symptoms (sic) his dyslexia has returned and this makes reading and writing almost impossible”.[25] Ms Tivey also wrote “[u]ncontrolled tremors prevent Mohsin from holding and effectively using a pen or computer keyboard to write or type”.[26]
[25] JHB, p425.
[26] JHb, p431.
Independent OT, Ms Houston reported “the Applicant informed that, with the help of his mother, he was able to overcome his dyslexia to study in the UK and obtained two bachelor’s degrees and a master’s degree”.[27] Ms Halligan indicated she knew the Applicant had a degree but did not realise he had studied in the UK or held a Master’s degree.[28] Ms Tivey wrote “Mohsin is highly intelligent and previously worked very successfully in data analysis and process development. This required high level executive functioning on a daily basis”.[29] The Applicant confirmed he had previously worked in the health and airline sector in Pakistan and worked for Telstra and the Red Cross in Australia.
[27] JHB, p268.
[28] Ms Halligan’s oral evidence.
[29] JHB, p431.
The Tribunal finds the Applicant reported dyslexia to a range of practitioners. The Tribunal is not satisfied the Applicant has a diagnosis of dyslexia. Regardless of diagnosis, the Tribunal is satisfied the Applicant studied at a post-graduate level and has worked in a range of professional roles suggesting he has a good ability to read and write.
Cognitive decline and memory problems
The Applicant also claimed to experience cognitive decline including memory problems, fatigue, and brain fog. The Applicant reported these symptoms to a range of practitioners and to his advocates. Dr Nagao, the Applicant’s treating neurologist noted the following in her letter dated 3 August 2023:
Impression:
Mohsin appears clinically stable. Over several years his parkinsonism has remained largely on the right. There is significant functional overlay, which responds well to non-pharmacological therapies. His neuropsychology reviews have not identified any significant cognitive impairment despite his subjective cognitive concerns.[30] [Tribunal’s emphasis]
[30] JHB, p466.
The Applicant also told the Tribunal that although he visits the Movement Disorders Clinic at the Royal Melbourne Hospital about every 6 months, they have suggested they do not need to see him as frequently “because there is nothing they can do”. He also indicated Dr Nagao said she could see him less often.[31]
[31] Applicant’s oral evidence.
The Applicant was able to engage effectively for the duration of the 2-day hearing by independently giving evidence, making submissions, and asking questions of witnesses. He was observed to speak the English language fluently and only used the Urdu interpreter very briefly on 3 or 4 occasions. He reported ‘zoning out’ a couple of times but appeared to regain focus relatively quickly. The Applicant was reminded at a directions hearing and at the commencement of the final hearing that he could request a break at any time. The Tribunal initiated short breaks on several occasions as part of the usual conduct of a hearing, however the Applicant did not request any additional break at any point in the proceedings. He laid down on the floor for a few minutes towards the end of the second day while his advocate engaged on his behalf. He was observed to follow the evidence of other witnesses, which included displaying annoyance or frustration in response to particular questions or answers. This suggests he understood the distinction between evidence that was advantageous to his case and evidence that was not helpful.
The Tribunal does not accept the Applicant has cognitive or memory problems on the evidence available.
RELEVANT LAW
The NDIS was established under the NDIS Act. Its objectives are set out in section 3 and its general principles guiding actions taken under the NDIS Act are set out in section 4. Section 3(1)(c) and (g) relevantly states the objectives of the Act are to support the independence and social and economic participation of people with disability and to promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community.
A participant’s plan must include a statement of participant supports, approved in accordance with section 33 of the NDIS Act, and any rules made under the NDIS Act.
The National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Cth) came into force on 3 October 2024, changing several key provisions. The Act introduced a new section 10 regarding a definition of NDIS support and amended section 34(1)(f). These changes apply to the Applicant’s SOPS and must be considered by the Tribunal.[32]
[32] Subitem 129(2) of Schedule 1 of the Amending Act provides that if a statement of participant supports is approved or varied on or after 3 October 2024, the amendments apply irrespective of whether the Applicant’s plan came into effect before, or on or after commencement.
Subsection 34(1) of the NDIS Act now relevantly states:
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(aa)the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is an NDIS support for the participant.
Note: For the purposes of paragraph (aa):
(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b) a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).
The Tribunal must be positively satisfied about each of the matters set out in section 34(1) of the Act.[33] The Applicant carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.[34]
[33] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [202].
[34] For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).
The term ‘reasonable and necessary support’ is not defined in the NDIS Act. In McGarrigle v National Disability Insurance Agency [2017] FCA 308, Mortimer J as she then was, made the following observations at [91] (prior to the recent amendments):
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.
The Full Court in National Disability Insurance Agency v WRMF [2020] FCAFC 79, considered the meaning of reasonable and necessary supports:
[T]here is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.[35]
[35] WRMF at [149]-[151].
Under subsection 209(1) of the Act, the Minister may make rules prescribing certain matters. Relevant rules in the Applicant’s case include the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (‘the Supports Rules’).
Part 3 of the Supports Rules set out criteria the Tribunal must consider when determining whether the supports requested are reasonable and necessary including whether they represent value for money, are effective and beneficial having regard to good practice, take account of what is reasonable to expect families to provide and are most appropriately funded by the NDIS, rather than through other service systems.
Relevantly in this case, Rule 3.1 regarding value for money (section 34(1)(c)) states:
3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
…
(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).[36]
[36] National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth).
Rules 3.2 and 3.3 regarding effective and beneficial and current good practice (section 34(1)(d)) provide:
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
Rule 3.4 outlines the matters to be considered when assessing what is reasonable to expect families, carers, informal networks and the community to provide under section 34(1)(e).
3.4 In 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:
…
(b) for other participants:
(i) the extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community; and
(ii) the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:
(A) the age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and
(B) the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and
(C) the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and
(iii) the extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes;
(c) for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.
Part 5 contains general criteria regarding supports and supports that will not be funded. Rules 5.1 and 5.2 provide:
5.1 A support will not be provided or funded under the NDIS if:
(a) it is likely to cause harm to the participant or pose a risk to others; or
(b) it is not related to the participant’s disability; or
(c) it duplicates other supports delivered under alternative funding through the NDIS; or
(d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
…
The National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth) (‘the Transitional Supports Rules’) introduce several key changes. Schedule 2 of the Transitional Supports Rules stipulate supports that are not considered NDIS supports.
The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[37] Relevant guidelines include the Operational Guideline - Reasonable and Necessary Supports and Operational Guideline – Including Specific Types of Supports in Plans – Transport.[38]
WITNESSES AND OVERVIEW OF EVIDENCE
[37] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
[38] Dated 28 March 2025 and 2 December 2024 respectively.
Applicant
In what appears to be his first statement of lived experience, the Applicant wrote:
Since my diagnosis of Early onset Parkinson’s when I was only 45 years old, my life has dramatically changed. I no longer feel or recognise myself which itself is agonising…
Each day is a battlefield until the time I get some treatment. Until my limbs get straight, flexed, and manageable, physically every task is like climbing a mountain. This is not only limited to the physical aspect rather it also greatly impacts my mental state, emotional and spiritual wellbeing too. I am fogged and forgetful as well when in agony. Massive differences are evident in me prior and post therapies which has also been noted by my practitioners which they have highlighted in their reports to NDIS.
There are days when I wake in the morning, I need support to help me to physically get out of bed and perform my tasks of personal care. Without support I cannot shower or dress myself. If I do not have support I would not be able to dress myself. If I had no support I would be forced to remain in the same clothes for weeks. The symptoms of my disability and the physical impacts mean I cannot perform personal care tasks independently. I cannot stand easily as I have issues with my balance which puts me at risk of falls when I perform tasks such as dressing etc. My tremors, stiffness make general independence virtually impossible.[39]
[39] JHB, p617.
In a statement of lived experience written in 2023, the Applicant wrote:
Right now, I can’t bathe, I can’t eat and I need help with personal activities of daily living. I want the Agency to seriously consider my request to have my wife to perform this support. I have cultural, religious and personal needs that would meet the Agency’s exceptional circumstance criteria.
I need significant home modifications. I am at increased risk of falls due to my condition and this is not being considered by the Agency. I have had a few near misses – will it take a significant injury before my concerns are heard? I live in a double story house and there is risk of me falling on stairs.
There is a significant lack of privacy at home. There is no door on the study room at home and I want the Agency to consider my request to have home modifications to address this. I have provided reports and requests – why has this not been addressed? It keeps being ignored. I need adjustments to my bathroom, my toilets and showers. I want to convert half of the garage space into a rehab room as per the previous OT report. Why is this being ignored?[40]
[40] JHB, p623.

In a further statement of lived experience (undated), the Applicant wrote:
I ask the Agency to please be mindful that I have Atypical Parkinson’s. I do not respond to medication – none of that works. The only thing that works for me is to access the therapies of my choice. They work. I must access therapies to help me to keep my movement and keep my muscles active. This is the only way I can have functional capacity. Please understand that Atypical Parkinson’s is different from regular Parkinson’s. The key to me maintaining my functional capacity, my general independence and my ability to interact with others is all based on access to services and supports that work for me.[41]
[41] JHB, p636.
In his statement of lived experienced dated 13 February 2025, the Applicant wrote:
This Atypical Parkinson’s (YOPD) is classified as a chronic and incurable illness, and it is documented that it demands a nuanced and flexible approaches to treatment. One that acknowledges the unique nature of this condition. In my case, it is crucial that a shift is made away from generalised criteria to instead embrace specific and tailored recommendations from my treating practitioners. A rigid, one-size-fits-all method is sealing my fate, leaving no room for the improvements I experienced 2022. It would be like giving the same injection or medical dosage to a baby and then to a grown adult. Without the tailored therapies and the support I need, I am experiencing the dark spiral where it becomes progressively more difficult to eat, dress, or even sign my name. The thought of being reduced to a state of complete dependence is unbearable. Your decision does represent a key foundation for me to reclaim my autonomy and get back to continuing my meaningful work, community and family life. I need this support to survive, recover, rebuild and then thrive
…
Allocating the funds under my choice and control to CAMs (complementary and alternative medicine) therapies etc, that have proven to be effective for me is the key to unlocking the constraints I face. This support would allow me to engage in therapies that have a direct and meaningful impact on my quality of life i.e. enabling me to drive, ride, read and organise my life with reduced pressure. Proper adjustments tailored to my specific situation, backed by professional endorsements from doctors, allied health professionals, and practitioners will ensure that my rehabilitation plan is implemented.[42]
[42] JHB, p577-578.
In his oral evidence, the Applicant stated:
Give me the choice and control which I had given before being confined. I don’t need to get like specific numbers of OT support or specific number of physiotherapy, 60 hours of that. Let me choose what my requirement is… I just want my flexibility, right and choice and control what works for me.[43]
[43] Applicant’s oral evidence.
The Applicant told the Tribunal he worked as a business analyst in Pakistan, designing and implementing Enterprise Resource Planning (ERP) systems for the health and airline sectors. He had experience with IT systems development, business management and engineering. “I designed the whole module, systems testing, business analysis, product analysis. It was a complex department, and I designed the whole system for that hospital”.[44]
[44] Applicant’s oral evidence.
The Applicant’s evidence was observed to relatively vague with respect to his employment history since arriving in Australia in 2016. “I was kind of a financial analyst as well over here with some company, I don’t remember what”. He explained he worked for Telstra for 6-10 months and for the Red Cross during the COVID-19 pandemic, assisting migrants who were not eligible for Centrelink.[45]
[45] Applicant’s oral evidence.
The applicant confirmed he was under the care of the Royal Melbourne Hospital and neurologist Dr Jennifer Nagao who had diagnosed him with Parkinson’s Disease. Counsel asked the Applicant whether Dr Nagao had recommended myotherapy. He replied, “nobody can recommend anything” later adding “she didn’t object and she said continue with what you are, what’s working with you”.[46]
[46] Applicant’s oral evidence.
The Applicant confirmed he often changes practitioners stating:
Everybody has their own style and they understand my condition is fluctuating. The one which I go to sometimes doesn’t work anymore, so I have to switch to another person… Now I’ve just started with another personal who is an osteopath as well, and a remedial masseur as well, both qualified.[47]
[47] Applicant’s oral evidence.
The Applicant filed evidence showing him using fine tools at a silver ring crafting workshop[48] and presenting to a community forum about inventing a watch band[49]. He submitted that “I can participate in sessions and complete amazing work when I have access to my therapies”.[50]
[48] JHB, p637
[49] JHB, p626.
[50] JHB, p637.
During the hearing, the Applicant indicated he was in pain. The following exchange took place:
Counsel: Have you taken anything, any medication for the pain?
Applicant: The pain medications which I took yesterday night, I can’t take it more because it gives me weird effects and it is a very, very weird side effects, diarrhoea and all that stuff.
Counsel:What pain medication gives you side effects like diarrhoea?
Applicant:I don’t remember. I just sometimes take CBD oil, that’s for pain relief. Sometimes I take Norgesic, sometimes I take Norflex and mostly I go for hands on therapy in the morning so that my day remains better.
The Applicant indicated he could not recall if he had ever attended a specialist clinic for pain.[51]
[51] Applicant’s oral evidence.
The Applicant confirmed he receives the disability support pension (DSP) and that he purchased a home in 2022. He said he couldn’t remember if his wife was receiving a carer’s pension, stating, “we haven’t spoken much about it”. He told Ms Houston during her assessment that his wife did receive a carer benefit.[52] The Applicant also indicated he couldn’t remember how much was owing on the mortgage, but confirmed his son was contributing to the payments. Later in his evidence, the Applicant confirmed that his wife was working about 3 days per week and was working for a company called ‘Zoee’ operated by his support coordinator Ms Halligan. The Applicant also indicated his wife had been providing 3 hours of support work each weekday since December 2024, when the Respondent approved this arrangement. The following exchange took place:
[52] JHB, p281.
Counsel:         And can you tell the Tribunal what she does to assist you?
Applicant:       She does a lot of things.
Counsel:         Tell us about it.
Applicant:The breakfast, lunch, dinner. Take me here and there… do my laundry, assist me with bathing, sometimes bathing, choosing clothes, waiting, taking it off, putting it on.
…
Counsel:         Ok, and did your wife shower you or assist you with showering?
Applicant:No, I don’t call her every time. I just sit on the floor. Again, as I said, I would like to maintain my independence, but if I need, I call.
Despite the inclusion of funding from at least February 2025 for simple bathroom modifications, such as grab rails or fold down stool and high levels of support coordination hours, the Applicant confirmed these changes had not been made. He indicated his OT “was coming over to get the things rolling”.[53] He filed a picture of a small, very low-standing plastic stool in his shower.[54] Ms Houston later gave evidence that a shower chair would cost between $120-150. The Tribunal was confused why the Applicant had not prioritised the installation of a permanent or temporary shower chair in circumstances where he had 70 hours of support coordination, OT support and the item was relatively inexpensive. This causes the Tribunal to have concerns about the veracity of the Applicant’s claims about his risk of falls and functional capacity more generally.
[53] Applicant’s oral evidence.
[54] JHB, p633.
Ms Houston took photos of a massage chair and home exercise equipment including a stationary bike and hand weights. The Applicant indicated he only uses the massage chair about once a week stating, “when I’m having my regular therapies, I don’t need anything else because I am in better shape”.[55] He also told the Tribunal he goes to community houses to “get motivation to do activities”. The Applicant explained that when he is in pain, a therapist applying pressure relieves his pain because “there is more force than I can apply myself”. He told the Tribunal that massage generally focuses on right hand, arm, shoulder neck, forearm and leg, thigh, foot, sole of the foot, shin, and calf muscles. He confirmed he has been introduced to a foam roller by several therapists but hadn’t used it for about 2 weeks. The Applicant’s previous physiotherapist noted in July 2023 that he had been assessed for an E-bike for “mobility independence within local community”.[56] The Applicant said he had not used his E bike for about 2 years, stating, “back then, I was able to sign my name as well”.[57]
[55] Applicant’s oral evidence.
[56] JHB, p396.
[57] Applicant’s oral evidence.
Later in the hearing, the Tribunal observed the Applicant handwriting notes on several occasions. Given his prior evidence, the Tribunal asked him to file a copy of his hand-written notes which he did at the conclusion of the hearing. The Tribunal is satisfied the Applicant can write legible notes.[58]
[58] E16,
The Applicant told the Tribunal he was introduced to Ms Halligan about 2 years ago by a support worker called Timmy. He indicated Ms Halligan was no longer his Support Coordinator, stating, “Not really as such now. Now they, we have another support coordinator and she is helping me more as a support worker now”.[59]
[59] Applicant’s oral evidence.
The Respondent asked the Applicant why his wife was not giving evidence in his application. He replied, “we are coming from a background, different culture, different style, different thinking, different approach”. Counsel put to the Applicant that he told Ms Houston during her assessment that his wife thinks he can work. He stated:
We talked a lot of things. I might have said that, but there are certain things which I just doesn’t mean… Sometimes like when we were talking, we just say certain words which are not really having an impact and they’re just kind of fillers.[60]
[60] Applicant’s oral evidence.
In circumstances where the Applicant recently purchased a house with a mortgage, the Tribunal does not accept the Applicant does not know whether his wife receives a carer’s pension nor the balance of their mortgage. The Tribunal is satisfied the Applicant accurately reported to Ms Houston his perception of his wife’s feelings regarding his capacity to work. The Tribunal accepts there may have been other factors which influenced the Applicant’s decision not to call his wife to give evidence. However, in circumstances where there is conflicting evidence between the Applicant’s self-reported functional capacity and the conclusions reached by Ms Houston in her report, the lack of corroborating evidence from a family member, including one who is paid to support him, is significant.
The Tribunal is not satisfied on the evidence, discussed in greater detail below, that the Applicant’s self-reported symptoms, impairments and functional capacity accurately reflect his experiences and what he can do in day-to-day life. The Tribunal is satisfied that the Applicant exaggerated his impairments and functional limitations and was not always forthcoming in his evidence before the Tribunal.
Support Worker, Ms Tiffany Kerley
Ms Kerley provided support to the Applicant between March and December 2023, usually once or twice per week for 2-3 hours. Her regular shift was Saturday mornings from 9am.
Ms Kerley provided a statement to the Tribunal which was written in December 2023 in response to a range of questions.[61] She asserted that the Applicant had limited informal support and was reliant on support workers to drive him to places in the community.[62] She also wrote:
Mohsin’s Parkinson’s disease affects his function at different times each day and in different ways. He often requires support remembering his day and the appointments he is required to attend and tasks to complete. This is particularly evident in the last 12 months where he has been unable to access his regular therapies and therefore his function has declined and he requires extra support to navigate day to day life.
This issue is compounded due to cultural expectations of him as the ‘head of the family’ and therefore responsible for a number of things. Therefore, he is expected to coordinate and maintain the household.
Mohsin is a Muslim and is currently unable to attend the local Mosque to participate in prayers. This is due to a deficit in support worker hours. If Mohsin was able to attend the local Mosque, he would be able to engage with his religious community more regularly which would maintain his mental health.
As per the above, the increase of support worker hours would allow Mohsin the confidence to access the community, receive assistance with his morning ADLs and successfully reskill and re-enter the workforce.[63]
[61] JHB, p486. See also E1 and E5.
[62] JHB, p487.
[63] JHB, p486-487.
A second brief email which had not been filed by the Applicant was forwarded by Ms Kerley to the Tribunal. This email stated:
I worked for Mohsin from January 2023 to December 2023. I just resigned due to commencing my Masters of Social Work. I no longer work as a support worker and I’m volunteering my time in support of Mohsin’s appeal. I’ve been requested to comment on Mohsin’s function before his appointments versus afterwards. I believe Mohsin showed improvement evidenced by increased flexibility and functionality in his fine motor skills such as computer work. His mental ability was also increased, as evidence by my needing to support him less to complete tasks.[64]
[64] E1.
Ms Kerley told the Tribunal she observed the Applicant drive home in early 2023, reportedly from the local shops. Later that year, the Applicant told her it was no longer safe for him to drive. When asked by Counsel what tasks of daily living the Applicant was struggling with in December 2023, Ms Kerley had to think for a moment before indicating he had some difficulty putting on his runners because “the pull wasn’t there” and “he couldn’t do the knot”.[65]
[65] Ms Kerley’s oral evidence.
Ms Kerley opined that the Applicant experienced brain fog because she had to repeatedly explain, for example, that his son would have to sign a bond authority form. She thought information appeared to sink in more easily after the Applicant had myotherapy.[66]
[66] Ms Kerley’s oral evidence.
Ms Kerley estimated that about 40 per cent of her time was spent driving the Applicant to places and about 60 per cent was spent on administrative tasks or ‘life admin’ such as helping to respond to emails, paying bills, gardening and taking photos of belongings for the Applicant to sell on Facebook marketplace. Ms Kerley indicated the Applicant was unable to press the button on his phone to take a photo.[67]
[67] Ms Kerley’s oral evidence.
The Tribunal observed Ms Kerley to be an honest and frank witness. However, the Tribunal is of the view, having heard all the evidence, that the Applicant exaggerated his functional limitations when in her presence and reiterated to her the importance of hands-on therapy to his wellbeing.
Physiotherapist, Mr Simon Ashton
Mr Ashton has a Bachelor of Physiotherapy and is registered with the Australian Health Practitioner Regulation Authority (AHPRA).
He provided letters or reports in support of the Applicant dated 9 September 2024,[68] 30 January 2025,[69] and an undated document recommending NDIS funded home modifications.[70] Mr Ashton confirmed the undated document would have been prepared sometime in late 2024.[71]
[68] JHB, p468
[69] JHB, p591.
[70] JHB, p473.
[71] Mr Ashton’s oral evidence.
Counsel explained to Mr Ashton that the primary duty of an expert is to assist the Tribunal by giving independent evidence. Ms Ashton confirmed he understood this requirement.
Mr Ashton indicated he had been engaged by the Applicant to provide a ‘second opinion’ and said, “we’ve not had a great deal of close and frequent one to one contact”.[72] He confirmed he had spoken with Ms Halligan, particularly regarding to his first report dated 9 September 2024 and shared a draft with her prior to finalisation. He couldn’t recall whether she requested any changes to his report but noted “we’ve definitely had a back and forth on a different letter which I can’t recall off the top of my head”.[73]
[72] Mr Ashton’s oral evidence.
[73] Mr Ashton’s oral evidence.
In his first report dated 9 September 2024, Mr Ashton acknowledged he was engaged to review the report of independent OT Ms Houston.[74] Mr Ashton effectively endorsed OT Ms Stephanie Tivey’s report dated 25 January 2024,[75] suggesting the Tribunal attribute more weight to the Tivey report because it was based on “reliable and relevant data”.[76] He also questioned the assessment of Ms Houston and the conclusions contained in her report dated 13 August 2024[77].
[74] JHB, p468.
[75] See JHB, p421
[76] JHB, p469.
[77] See JHB, p259.
In his oral evidence, Mr Ashton indicated it was his understanding the WHODAS 2.0 (World Health Organisation Disability Assessment Schedule) assessment tool used by Ms Tivey was based on the Applicant’s self-reports. The Applicant scored 94% in the domains of Life Activities and Participation, suggesting extreme disability. Mr Ashton included those results in his own report to support the assertion that the Applicant experiences “severe disability” across all domains.[78] The Tribunal observes that Ms Houston later gave evidence explaining a person scoring 94% in life activities essentially “means they can’t do anything at all for themselves”.[79]
[78] JHB, p469.
[79] Ms Houston’s oral evidence.
Mr Ashton agreed with Counsel that his description of Ms Houston’s report, as one based solely on subjective clinical observation, was incorrect.[80] In fact, she had completed an assessment using a conversational interview approach, clinical observations, a visual assessment of the home and professional analysis of functional capacity.[81]
[80] Mr Ashton’s oral evidence. See also JHB, p469.
[81] JHB, p262.
Mr Ashton was observed to extensively address the legislative criteria and to include a reference to a 2015 Administrative Appeals Tribunal decision in his first report. In his oral evidence, he could not identify or articulate the relevant part of the decision but said “it was about chiropractic treatment is reasonable and necessary”.[82]
[82] Mr Ashton’s oral evidence.
He told the Tribunal there were lots of ways to approach rehab for someone with a condition like the Applicant’s but suggested individual preference significantly influences his recommendations:
But if you're got an individual who's struggling with motivation, adherence, energy, and struggling with their self-care, then then I don't think an assistive technology would be able to replace a, a personal connection to a therapist.[83]
[83] Mr Ashton’s oral evidence.
Mr Ashton also indicated that he considers it part of his job to help patients achieve their goals and to stay motivated. He agreed with Counsel that recommendations should be realistic and take into account what a person might or might not be prepared to do, but he was not ultimately responsible for ensuring they do it.
Mr Ashton confirmed he is not the Applicant’s treating physiotherapist; he has not provided any hands-on therapy. He did not conduct any independent assessment, such as a walking test with the Applicant.
He indicated that a supervised exercise program helps ensure a person understands the prescribed exercises and can perform them safely and competently. He explained that periodic review is important so that no “bad habits creep in or to adjust the exercise program…in terms of difficulty depending on the patient’s needs”.[84]
[84] Mr Ashton’s oral evidence.

The Applicant’s assertion that he feels unsafe when using public transport did not persuade the Tribunal that there is a genuine reason why he is unable to use public transport on account of his Parkinson’s disease. The Tribunal is not satisfied that the Applicant is unable to drive. The Tribunal finds the Applicant’s wife is available to drive him to some locations.
The Tribunal finds the Applicant does not require support worker assistance for assistance with daily living or to access the community. In these circumstances, the Tribunal is not satisfied that providing funding for support worker assistance is value for money or effective and beneficial. Sections 34(1)(c) and (d) of the NDIS Act are not met.
Requested Supports
The recent decision of FSWN and National Disability Insurance Agency (NDIS) [2025] ARTA 114 sets out the relevant procedure for considering supports since the Amended Act came into effect on 3 October 2024.
43.Having regard to the provisions of the principal Act as amended, the Transitional Rules, and the Supports Rules, the structure of the enquiry involved in this review involves two stages and the following steps:
Stage 1 Ascertain if the requested support is an “NDIS” Support as defined. This inquiry is focused on the support, not the participant.
Step 1: Determine if the requested support is of a character that falls within the scope of a category of support specified in column 1 of the Table to Schedule 2 of the Transitional Rules by reference to the description of supports that fall within the scope of that category contained in column 2 of the Table.
If the answer to that question is “yes”, then stage 1 is complete. The requested support is not a NDIS Support and cannot be approved for inclusion in a SoPS because of s 34(1)(f) (subject to a replacement support determination being made, as to which see following).
If the answer to that question is “no”, then proceed to step 2 of stage 1:
Step 2: Determine if the requested support is of a character capable of falling within the scope of a category of support specified in column 1 of the Table to Schedule 1 of the Transitional Rules by reference to the description of supports that can fall within the scope of that category contained in column 2 of that Table.
If the answer to that question is “no”, then the requested support will not be a NDIS Support and cannot be approved for including in a SoPS because of s 34(1)(f).
If the answer to that question is “yes”, then the requested support will be a NDIS Support that is capable of being approved for inclusion in a SoPS by operation of s 34(1)(f), and stage 2 of the enquiry is reached.
Stage 2: Ascertain if the requested support satisfies each of the other criteria specified in s 34(1)(aa) to (e) and the associated Supports Rules. There is some overlap of the stage 1 and 2 enquiries. However, in my opinion stage 2 is primarily a participant focused enquiry. That is, it seeks to establish the benefit of the support to the participant. To the extent that stage 2 also requires examination of the efficacy of the support per se it adds nothing to the outcome of the stage 1 enquiry in my opinion.
44.The question of whether a requested support is, or is not, a NDIS support is a mixed question of fact and law. The issue of fact to be determined is whether the requested support falls within a category of items specified in column 1 of the Tables to Schedules 1 and 2 of the Transitional Rules. If it does, it will either be, or not be, a NDIS support by operation of law.
45.It is important to observe that in the scheme of the Transitional Rules it is not sufficient to find that a support is not excluded as a NDIS Support by operation Schedule 2. It must also be found to be included as a NDIS Support by Schedule 1. That is, both Schedules have work to do in determining what is not a NDIS Support. To illustrate this point using absurd examples, a giraffe, hot-air balloon, and space craft are not excluded as NDIS supports by Schedule 2, but they are incapable of falling into any of the categories of NDIS Supports in Schedule 1. They are therefore not NDIS Supports by operation of Schedule 1, rather than Schedule 2.
46.If a requested support is not a NDIS Support by operation of the Transitional Rules, the criteria specified by s 34(1)(f) of the principal Act as amended cannot be satisfied. Section 34(1) is conjunctive in its terms, as is indicated by use of the words ‘the CEO must be satisfied of all of the following ...’ (emphasis added). As each of the requirements of s 34(1) must be met before a support can be approved for inclusion in a SoPS there is no utility in considering if the requested support meets the other requirements of that section. The enquiry ends with the determination that the requested support is not a NDIS support.
The Applicant contended that items included in Schedule 2 of the Transitional Supports Rules represents supports that the Respondent generally does not fund, “but they are not permanently banned”.[184]
[184] JHB, p648.
Section 5(2) of the Transitional Supports Rules state:
For the purposes of subsection 10(4) of the NDIS Act, a support covered by column 2 of an item in the table in clause 1 of Schedule 2 to this instrument is not an NDIS support for any participant (subject to subsection 10(6) of the NDIS Act) or prospective participant.
In FSWN, the Tribunal found there was no general discretion:
[54] For completeness, I will briefly address the operation of ss 10(6) to (8) of the principal Act as amended. In short summary, those provisions authorise the CEO to determine that a support that appears in the Table to Schedule 2, despite being in that Table, is a NDIS support for a participant, provided she is satisfied of various matters, and upon an application being made by a participant. That discretion is confined, however, by the ‘replacement support determination’ contained in Part 3, s 7 of the Transitional Rules.[185]
[185] FSWN and National Disability Insurance Agency (NDIS) [2025] ARTA 114
In VKKG and National Disability Insurance Agency (NDIS) [2025] the Tribunal also addressed the question of discretion in relation to prescription spectacles or contact lenses in circumstances where the Applicant’s visual impairment is complex and severe.
[28] Item 12(h) of the NDIS Supports Transitional Rules, together with paragraph 34(1)(f) and section 10 of the NDIS Act, confers no general discretion that would enable the Tribunal to disregard Item 12(h). It is not open to the Tribunal to conclude, for example, that Item 12(h) should not apply to VKKG because special circumstances exist in VKKG’s case, or because the supports that he seeks are otherwise reasonable and necessary. Any contention advanced on VKKG’s behalf that the Tribunal can adopt that course is incorrect.[186]
[186] VKKG and National Disability Insurance Agency (NDIS) [2025] ARTA 789
The Tribunal will consider the relevant supports in line with the approach set out in FSWN.
Core Supports
Request 1 - 9 days (3 x 3 days per year) for short-term accommodation (STA)
For the reasons outlined above in relation to support coordination, support worker assistance and transport, the Tribunal is not satisfied this support is related to the Applicant’s disability (rule 5.1). The Tribunal finds that STA is not needed by the Applicant on account of his disability and is therefore not value for money. Section 34(1)(c) is not met.
Request 2 - Mobile phone (consumables funding)
Schedule 2, Item 4(d) of the Transitional Supports Rules relevantly states:
Internet devices (such as modems and routers), land line phones, mobile phones (including smart phones), mobile phone accessories, tablets and sim cards.
The Tribunal finds a mobile phone is not a NDIS support. Section 34(1)(f) is not met.
Request 3 - Laptop (consumables funding)
Schedule 2, Item 4(f) of the Transitional Supports Rules relevantly states:
Standard computers, standard computer accessories, consoles and games, and subscriptions for streaming services.
The Tribunal finds a laptop (see Item 4(f)) is not a NDIS support. Section 34(1)(f) is not met.
Capacity Building Supports
Request 4 - 104 hours of hydrotherapy
The Tribunal observes that Mr McCann gave persuasive evidence about the role of hydrotherapy under the initial guidance of a physiotherapist. The Tribunal accepts Mr McCann’s evidence about the importance of the Applicant undertaking regular exercise himself and taking responsibility for his own rehabilitation.
The Applicant did not explain why he was seeking 104 hours of hydrotherapy per week. There was no evidence that he has been attending a pool himself. Mr McCann’s evidence suggests that after an initial period of guidance, the Applicant should be completing twice weekly sessions of hydrotherapy which does not require supervision beyond a monthly check-in. These hours are included below under physiotherapy.
The Tribunal finds the Applicant’s request for 104 hours of hydrotherapy is not value for money in these circumstances. Section 34(1)(c) is not met.
Request 5 - 104 hours of complementary or alternative medicine (CAMs)
Schedule 2, Item 9(k) of the Transitional Supports Rules relevantly states:
Alternative and complimentary medicine.
The Tribunal finds alternative and complimentary medicine is not a NDIS support. Section 34(1)(f) is not met.
Request 6 - 69 hours of myotherapy
Ms Houston described myotherapy in her report as:
an advanced form of remedial massage, also known as sports massage or medical massage. Myotherapists use a wider range of treatments and techniques, including some not generally incorporated into remedial massage, like myofascial cupping and dry needling, to relieve muscle tension, reduce pain and improve range of motion and also the underlying root causes (trigger point therapy). Myotherapy focuses on the treatment and management of musculoskeletal pain, tightness and restriction. Myotherapy is a specific form of soft tissue therapy that is focused on the treatment and management of musculoskeletal complaints that also incorporates education and exercise prescription to help patients manage their condition and prevent future injury.[187]
[187] JHB, p290.
In her report, myotherapist Ms Julie Redmond indicated she first treated the Applicant from July to September 2021 and recommended 2 one-hourly sessions of myotherapy per week to improve the Applicant’s physical function.[188] On 10 December 2022, Ms Redmond recommended myotherapy to increase the Applicant’s physical endurance, maintain or improve his gait and balance and improve his sleep.[189]
[188] JHB, p15-20.
[189] JHB, p84-86.
Several other practitioners recommended regular myotherapy for the Applicant. Physiotherapist, Mr Manvir Polra noted in his report dated 28 November 2022 that the Applicant had not responded well to pharmacological interventions and recommended 3 x 1 hour sessions per week of myotherapy.[190]
[190] JHB, p80. A summary of other practitioners recommending myotherapy are set out in the Respondent’s statement of facts, issues and contentions (SOFIC) – see E15, p13-14.
Schedule 2 Item 10(a) of the Transitional Supports Rules states “massage that is not provided by an allied health professional for disability related purposes” is not a NDIS support. Therefore, massage provided by an allied health professional for disability related purposes could be a NDIS support.
Schedule 1 Item 34 of the Transitional Supports Rules provide:
Supports that provide evidence-based therapy to help participants improve or maintain their functional capacity in areas such as language and communication, personal care, mobility and movement, interpersonal interactions, functioning (including psychosocial functioning) and community living. This includes assessment by allied health professionals for support planning and review as required. (Tribunal’s emphasis).
The Respondent contended that myotherapy is an alternative or complimentary medicine and is therefore not a NDIS support because of Schedule 2 Item 9(k).
Further, the Respondent relied on internal legal advice which identified a 2015 review by the Australian Department of Health and National Health and Medical Research Council (NHMRC) which resulted in the removal of private health insurance rebates for 17 therapies including “massage therapy or myotherapy”.[191] The ‘Review of the Australian Government Rebate on Natural Therapies for Private Health Insurance’ (Rebate on Natural Therapies Report) states:
It was difficult to find any RCT (randomised controlled trial) that specifically assessed the effectiveness of ‘remedial massage’, ‘sports therapy massage’ or ‘myotherapy’ for any clinical condition in the literature, and any attempt to assign the evidence to a particular massage therapy subgroup was fraught with complications. This was because many RCTs or SRs (systematic review) did not adequately describe the massage therapy technique employed, often only describing the frequency of the intervention (number of sessions per week or duration of each session), but not reporting on the intensity or depth of massage therapy, the method of applying touch, the theoretical framework underlying the intervention or the training and experience of the massage therapist. Hence, there was sometimes no clear distinction between the non-manipulative manual therapies conducted by massage therapists and the soft-tissue work done by chiropractors, physiotherapists and osteopaths, with a great deal of crossover between techniques often observed.[192]
[191] JHB, p325.
[192] Commonwealth of Australia, 2015, p93-94. See -
In the Rebate on Natural Therapies Report, ‘in-scope therapies’ referred to ‘natural’, ‘alternative’ and ‘complimentary’ therapies which are:
offered through General Treatment cover under complying health insurance policies by private health insurance (PHI) that are not eligible to be subsidised directly under Medicare and are not provided by a health professional registered under the National Registration and Accreditation Scheme (NRAS).[193]
[193][193] Ibid, p13.
The Report further found that no systematic reviews were identified that assessed the effectiveness of myotherapy interventions that met the inclusion criteria for the overview.[194]
[194] Ibid, p90.
The Applicant filed a media release dated 7 November 2024 from the Myotherapy Association of Australia (MA) which announced that myotherapists are officially classified as allied health professionals under the NDIS, in anticipation of the legislative amendments.[195] The Tribunal observes a later statement on 17 December 2024 clarified:
On 7th November 2024, MA announced that Myotherapy was recognised under the NDIS based on written advice from the NDIA.
On 26th November 2024, NDIA verbally retracted this statement, claiming the initial advice was inaccurate.[196]
[195] JHB, p572.
[196]
The Tribunal understands that myotherapists are not registered with the Australian Health Practitioner Registration Authority (AHPRA).
Schedule 1 Item 34 of the Transitional Supports Rules requires that the support be evidence-based. The Tribunal is not satisfied on the evidence that myotherapy is an evidence-based therapy.
Therefore, the Tribunal finds that myotherapy is an alternative or complementary medicine pursuant to Schedule 2 Item 9(f) and is excluded as a NDIS support. Section 34(1)(f) is not met.
Request 7 - 65 hours of remedial massage
Ms Houston described remedial massage as a:
manual therapy that treats immediate problems and symptoms of general tightness and stiffness. The therapist will use a range of hands-on techniques to target deep layers of muscle and tissue. The massage is continuous without a break as pressure is applied to release any ‘knot’ in the muscle.[197]
[197] JHB, p290.
In the Rebate on Natural Therapies Report mentioned above, the following conclusion was reached with respect to massage therapies which included remedial massage:
The quality of the evidence was very low for most of the outcomes assessed, and there were many other outcomes for which the evidence remains uncertain. Due to the paucity of good quality primary studies with sufficient sample size, or the lack of replication of study results, it was not possible to make any firm statements as to the effectiveness of massage therapy for many clinical conditions included in this overview.[198]
[198] Above n 180, p91.
For the same reasons given in relation to myotherapy above, the Tribunal finds that remedial massage is an alternative or complementary medicine pursuant to Schedule 2 Item 9(f) of the Transitional Supports Rules and is excluded as a NDIS support. Section 34(1)(f) is not met.
Request 8 - 52 hours of osteopathy
Ms Houston explained osteopathy in her report as a:
manual therapy like myotherapy that aim to address pain and discomfort in the body, but they differ in their approach and techniques used. Osteopathy focuses on the musculoskeletal system and aims to improve the overall health and function of the body. It is a form of complementary medicine that uses manual techniques such as mobilisation, manipulation, soft tissue, stretching, and other indirect gentle techniques to help restore the body's natural balance and function. The focus of the Osteopath is on improving the underlying causes of these symptoms, rather than simply treating the symptoms themselves. Osteopathy takes a holistic approach to healthcare and considers the whole person, including their physical, emotional, and social wellbeing.[199]
[199] JHB, p291.
In his oral evidence, the Applicant could not recall when he commenced osteotherapy but claimed to go twice every week for about one year. He indicated Dr Joyce Caravas also gave him a schedule of activities including pilates to be completed under observation but could not recall how many sessions were completed.[200]
[200] Applicant’s oral evidence.
The Applicant filed a letter from Dr Caravas dated 14 November 2022. In that letter, Dr Caravas indicated the Applicant had commenced osteopathic therapy under her care one month prior, being October 2022. Noting the Respondent reduced the Applicant’s capacity building funding in October 2022, leading to the current application for review, Counsel asked the Applicant whether it was possible he only started seeing an Osteopath in October 2022. The Applicant claimed he was going to different practitioners prior to Dr Caravas. The Applicant did not file any evidence from another practitioner in support of this claim.
Dr Caravas noted the Applicant experiences several symptoms including dystonia of the right upper limb, tremor and weakness in the right hand, clawing of the right toes, muscle hypertonicity, reduced mobility and pain of the right upper and lower limbs.[201] Dr Caravas noted the sessions had focused on hand-specific gripping, dexterity and range of motion exercises. She recommended weekly sessions and range of equipment including ergonomic mouse, pen grip, cordless stick vacuum, rocker knives, button hook, and zipper pull.[202]
[201] JHB, p47.
[202] JHB, p49.
Dr Caravas suggested “an immediate priority would be occupational therapy (OT) assessment with provision of aforementioned equipment to make home care and personal care tasks easier and more efficient – this is best organised by Mr Sheikh’s case manager/support coordinator”.[203] The Tribunal observes that Dr Caravas also recommended equipment like a button hook and zipper pull in November 2022– almost 2 years prior to Ms Houston. These recommendations were not followed by the Applicant.
[203] JHB, p51.
There was no evidence of the Applicant engaging with an Osteopath under a chronic disease management plan, which are regularly arranged by a GP.
Schedule 2 Item 10(a) of the Transitional Supports Rules states “massage that is not provided by an allied health professional for disability related purposes” is not a NDIS support. Therefore, massage provided by an allied health professional, such as an Osteopath, for disability related purposes could be a NDIS support.

Schedule 1 Item 34 of the Transitional Supports Rules provide:
Supports that provide evidence-based therapy to help participants improve or maintain their functional capacity in areas such as language and communication, personal care, mobility and movement, interpersonal interactions, functioning (including psychosocial functioning) and community living. This includes assessment by allied health professionals for support planning and review as required. (Tribunal’s emphasis).
The Tribunal understands Osteopaths are registered with AHPRA.
The Tribunal considers massage provided by an Osteopath could be a NDIS support and will therefore proceed to stage 2 of the assessment, as outlined in FSWN.[204]
[204] FSWN and National Disability Insurance Agency (NDIS) [2025] ARTA 114
Ms Caravas recommended twice weekly sessions of Osteopath, however the Applicant did not provide an updated report or call an Osteopath to give oral evidence. Ms Caravas’ report indicated that the purpose of osteopathy was to improve hand motor skills and strength.[205]
[205] JHB, p49.
The Tribunal accepts Mr McCann’s evidence which recommended weekly hand-on sessions which would focus on mobility of the joints and stretching of the muscles. Mr McCann indicated that an additional session of massage each week might help to keep the Applicant’s tone down, but noted “once again, once we started, we can reassess on the go, you know, and see what’s required”. The Tribunal understands that the Applicant receives hand therapy from OT Ms Whitten every 2 - 4 weeks, which has been a relatively long-standing arrangement and focuses specifically on his right arm, hand and wrist. Both practitioners emphasised the importance of stretching and exercise between hands-on therapy sessions, though it is unclear to the Tribunal whether the Applicant has followed these recommendations.
In these circumstances, the Tribunal finds that 104 hours of osteopathy is a duplication of supports contrary to rule 5.1(c) and is not value for money. Section 34(1)(c) is not met.
Request 9 - 52 hours of somatic therapy
Schedule 2, Item 10(h) of the Transitional Supports Rules excludes somatic therapy as a NDIS support because it is not evidence based.
The Tribunal finds 52 hours of somatic therapy is not a NDIS support. Section 34(1)(f) is not met.
Request 10 - 4 hours of psychiatry
Schedule 2, Item 13 (d) of the Transitional Supports Rules relevantly states:
Supports related to mental health that are clinical in nature, including acute, ambulatory or continuing care or rehabilitation.
For completeness, rule 7.7 of the Supports Rules state:
7.7 The NDIS will not be responsible for:
(a) supports related to mental health that are clinical in nature, including acute, ambulatory and continuing care, rehabilitation/recovery; or
(b) early intervention supports related to mental health that are clinical in nature, including supports that are clinical in nature and that are for child and adolescent developmental needs; or
(c) any residential care where the primary purpose is for inpatient treatment or clinical rehabilitation, or where the services model primarily employs clinical staff; or
(d) supports relating to a co-morbidity with a psychiatric condition where the co-morbidity is clearly the responsibility of another service system (eg treatment for a drug or alcohol issue).
The Tribunal finds 4 hours of psychiatry is not a NDIS support. Section 34(1)(f) is not met.
Request 11 - 70 hours of neurofeedback
Schedule 2, Item 10(e) of the Transitional Supports Rules excludes neurofeedback as a NDIS support because it is not evidence based.
The Tribunal finds 70 hours of neurofeedback is not a NDIS support. Section 34(1)(f) is not met.
Request 12 - 4 hours of neurology
Schedule 2, Item 12 of the Transitional Supports Rules relevantly states:
(a)The diagnosis, early intervention and clinical treatment of health and dental health conditions, including ongoing or chronic health conditions;
(b)Diagnostic assessments and screening services.
For completeness, rule 7.5 of the Supports Rules state:
The NDIS will not be responsible for:
(a) the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions; or
(b) other activities that aim to improve the health status of Australians, including general practitioner services, medical specialist services, dental care, nursing, allied health services (including acute and post-acute services), preventive health, care in public and private hospitals and pharmaceuticals or other universal entitlements; or
(c) funding time-limited, goal-oriented services and therapies:
(i) where the predominant purpose is treatment directly related to the person’s health status; or
(ii) provided after a recent medical or surgical event, with the aim of improving the person’s functional status, including rehabilitation or post-acute care; or
(c)palliative care.
The Tribunal finds 4 hours of neurology is not a NDIS support. Section 34(1)(f) is not met.
Request 13 - 26 hours of neurolinguistic programming
Neurolinguistic programming (NLP) is a “set of principles and techniques aimed at enhancing self-awareness, increasing confidence, building communication skills, and motivating positive social actions”.[206]
[206] JHB, p296.
Ms Halligan reported that NLP “assisted him in taking control of his thoughts, feelings and behaviours which improved his symptoms and wellbeing”.[207] The Tribunal is satisfied this was self-reported by the Applicant.
[207] JHB, p464.
While there were numerous references to neurofeedback therapy across the evidence, the Tribunal could not locate any evidence of a practitioner recommending NLP. It remains unclear if there is any difference between the two forms of therapy. If it is essentially the same as neurofeedback therapy, then NLP is excluded as a NDIS support by Schedule 2 Item 10(e).
If NLP is a different type of therapy, the Tribunal is satisfied that the purported benefits of NLP, such as increasing self-awareness, confidence, communication skills and positive social actions are achievable through psychology supports, which is an evidenced-based therapy. NLP would therefore duplicate the psychology supports in the Applicant’s SOPS contrary to rule 5.1 of the Supports Rules. NLP cannot be funded.
Request 14 - 52 hours of lifestyle and job coach
The evidence in support of a lifestyle and job coach was limited. In a letter dated 1 August 2022, Ms Monika Polemicos, a clinical hypnotherapist and psychotherapist wrote:
Mr Sheikh presents to be a highly motivated individual when it comes to improving his current situation despite these barriers and setbacks. Mr Sheikh identified the following therapeutic and personal support goals as part of the 13 session Personal Freedom Program with HypnoLAB:
• Career coaching including identifying suitable career path that is flexible and compatible with Mr Sheikh physical abilities
• Strategy and planning on how to achieve that career plan
• Sleep independence and routine.
• Physical health care routine including exercise and training. Building bladder
control/stamina.
• Self-care and self-reliance skills; building independence with daily tasks.
• Identifying pathways for financially stability
• Emotional and therapeutic intervention with regards to trauma history, interpersonal conflicts
• Anxiety relief tools
• Mental health support
• Personal growth and ego strengthening with regards to building new identity.[208]
[208] JHB, p335-336.
Clinical psychologist, Ms Shagufta Riaz referred to “support sessions with career / life coach to manage and navigate through the sudden changes he is going through (hypnolab)”.[209]
[209] JHB, p54.
The Respondent submits that the Applicant is eligible to obtain supports from a Disability Employer Services (DES) provider and other Commonwealth employment programs routinely accessed by people in receipt of a Centrelink payment.
In relation to the goals that focus on employment and training, Schedule 2 Item 18 of the Transitional Rules provide that the following are not a NDIS support:
(a) Government funded employment programs, including Disability Employment Services and Workforce Australia
…
(f) employment programs, including both disability-targeted and open employment services, to provide advice and support to job seekers with disability who are largely independent once placed in employment to find and retain a job;
The Tribunal is not satisfied on the limited evidence that the proposed job coaching falls within the meaning of Schedule 1 Item 4 regarding supports that build a participant’s capacity to successfully prepare for, find, or keep employment in the open labour market (including self-employment and micro-enterprise) or the supported labour market.
The Respondent contends that support for “life coaches, wellness coaches, career coaches or cultural coaches” are not a NDIS support because of Schedule 2 Item 10(c) of the Transitional Supports Rules. The Tribunal agrees and section 34(1)(f) is not met.
Further, the Tribunal is satisfied that the purpose of the lifestyle and job coach overlaps with other supports currently provided in the Applicant’s SOPS through psychology, physiotherapy and OT and therefore represents a duplication of supports contrary to rule 5.1(c) of the Supports Rules. A lifestyle and job coach cannot be funded.
Request 15 - 10 hours of ophthalmology
Ophthalmology refers to a branch of medicine specialising in eye diseases and conditions.
Schedule 2, Item 12 of the Transitional Supports Rules relevantly states:
The diagnosis, early intervention and clinical treatment of health and dental health conditions, including ongoing or chronic health conditions;
Diagnostic assessments and screening services.
The Tribunal finds 10 hours of opthalmology is not a NDIS support. Section 34(1)(f) is not met.
Capital Supports
Request 16 - Funding to build a ‘wellness room’.
Clinical psychologist Ms Riaz supported “a wellness area in garage for his personal space”.[210] Driving OT, Dev Raithaththa, recommended the Applicant have “sliding doors installed in his home office to provide privacy…so he can attend appointments and spend time with his support workers without disturbing his family”.[211] Physiotherapist, Mr Ashton opined that:
the proposed wellness space is not merely a recreational area but rather a vital tool in Mr. Sheikh’s self-directed health maintenance journey, providing him with a private and focused environment where he can engage in targeted exercises, therapeutic activities, and mindfulness practices tailored to his specific needs.[212]
[210] JHB, p54.
[211] JHB, p352.
[212] JHB, p476.
The Respondent contended in their SOFIC:
[110] Ms Houston reports that the Applicant is seeking funding for home modification to erect a wall in the double garage to make it into two sections, effectively making it a single garage with a gym room so that he can move his gym equipment out of the sitting room. Ms Houston opines that it is not reasonable for the Applicant to expect the Respondent to fund for the home modification that he is seeking, and explains that this is because she considers the gym equipment can be moved to the garage without the garage needing to be converted. Ms Houston also opines that many homes with a home gym have their equipment housed in the garage and that she considers it would be reasonable for the Applicant to self-fund a portable screen to provide privacy.
[111] The Respondent contends that it is unclear why the Applicant is unable to set up his computer within a room where he could close the door, or close the doors to the garage or utilise a portable screen while he engages in therapeutic strategies.
[112] The Respondent also contends that the Applicant’s therapeutic strategies and functional supports need to be implemented across all areas of the Applicant’s home environment in order to improve his independence and daily function, therefore, it is unclear what additional benefit is to be achieved through the implementation of supports in privacy.
[113] Therefore, the Respondent contends that the Tribunal cannot be positively satisfied that the criteria in sections s 34(1)(c) and (d) of the Act are met for this requested funding.[213]
[213] E18.
With respect to the issue of sliding doors and/or the erection of a screen in the garage, it appears the primary purpose is privacy and improving the property currently shared by 5 people, 4 of whom are adults. The Tribunal is of the view that these are day-to-day living costs as set out in Schedule 2 Item 1 which include:
(c) Standard home security and maintenance costs, fencing, gates, and building repairs;
…
(e) Standard home repairs, home improvements, standard renovations and maintenance;
…
(j) Standard furniture, fixtures or fittings.
The Tribunal finds the proposed home modifications are not a NDIS support pursuant to Schedule 2, Item 1(e) and they represent standard home improvements and renovations. Section 34(1)(f) is not met.
Physiotherapy - Additional request
As mentioned above, the Respondent funded 60 hours of physiotherapy prior to hearing.
The Applicant indicated during the hearing that he was seeking an additional 58 hours of physiotherapy. The exact basis for this request was unclear.
The Tribunal places significant weight on the evidence of Mr McCann. He recommended the following mix of hydrotherapy, hands on physical therapy and review of exercises for the Applicant:
(a)Approximately 12 sessions of hydrotherapy (initial program set-up).
(b)52 weekly sessions of hands-on physical therapy.
(c)9 check-in sessions to review hydrotherapy and other exercises.
This totals 73 hours of physiotherapy per year.
The Tribunal accepts the support is necessary to address the needs of the Applicant arising from an impairment which meets the disability requirements. Section 34(1)(aa) is met.
The Tribunal accepts the support will assist the Applicant to pursue his goals and aspirations including rehabilitating his limbs to sustain his independence.[214] Section 34(1)(a) is met.
[214] E8, p13.
The Tribunal accepts the support will assist the Applicant to undertake activities to facilitate his social and economic participation by increasing his strength and stamina to socialise with friends, family, and his community groups. Section 34(1)(b) is met.
The Tribunal is also satisfied that the proposal by Mr McCann is value for money in that it combines regular hands-on therapy with guidance and supervision to increase the Applicant’s capacity and confidence to self-manage his impairments and associated functional limitations. It seems that once a good hydrotherapy and exercise practice is established, these hours can most likely be reduced. Section 34(1)(c) is met.
The Tribunal accepts that Mr McCann’s recommendations are likely to be effective and beneficial for the Applicant, particularly if he follows the advice to engage in regular self-management at home and attends twice weekly hydrotherapy for the duration of the year. The Applicant repeatedly emphasised his desire for regular hands-on therapy and to build his independence. The Tribunal is satisfied Mr McCann’s plan responds appropriately to the Applicant’s aspirations and compliments the other supports contained in the SOPS. Section 34(1)(d) is met.
This support requires specialist training and cannot be provided by families or informal networks. Section 34(1)(e) is met.
The Tribunal is satisfied physiotherapy is a NDIS support for the applicant. Section 34(1)(f) is met.
The Tribunal is satisfied that 73 hours of physiotherapy is reasonable and necessary pursuant to the legislative criteria and rules and should be funded.

Date(s) of hearing: 11-12 June 2025 – by video

Applicant: Mr Mohsen Sheikh

Counsel for the Respondent: Ms Amy Douglas-Baker

Solicitors for the Respondent:
Ms Jacqueline Ziesel, MillsOakley

Date(s) of hearing:	11-12 June 2025 – by video
Applicant:	Mr Mohsen Sheikh
Counsel for the Respondent:	Ms Amy Douglas-Baker
Solicitors for the Respondent:	Ms Jacqueline Ziesel, MillsOakley