Shepherd and National Disability Insurance Agency (NDIS) - [2025] ARTA 163

Shepherd and National Disability Insurance Agency (NDIS) [2025] ARTA 163 (24 February 2025)
Applicant:Priscilla Shepherd
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/0262

Tribunal:General Member A Colvin
Place:Brisbane
Date:24 February 2025

Decision:The Tribunal sets aside the decision under review and remits this matter to the Respondent with directions that:

1.A new statement of participant supports (SOPS) be approved for the Applicant, which specifies:
(a) the following reasonable and necessary supports:
Core supports
(i)the current 10 hours per week of assistance with community access supports in the plan dated 11 February 2025 (Current Plan) be replaced with two hours per day calculated at standard weekday daytime, Saturday, Sunday and public holiday rates;
(ii)seven days per week of night-time sleepover supports (inactive overnight supports);
(iii)the current $1,698.08 per year of continence consumables supports in the Current Plan be replaced with the following continence consumables supports:
(A) $9,506.57 of funding for the first 12-month period as per the Health Equipment and Consumable Supplies Australia Pty Ltd quote dated 21 May 2023 but excluding Accouche powder-free gloves for $770.88 and Aquim hand sanitiser for $218.46 (updated quote to be provided);
(B) $1,698.07 of funding for each of the second and third 12-month periods being the value of Continence Package C - Intermittent Moderate supports;
(iv)$3,456 per year for level 3 transport support;

Capacity building supports
(v)the current 52 hours per year of physiotherapy supports in the Current Plan be replaced with 56 hours per year of physiotherapy supports;
(vi)five hours per year of continence nurse supports to provide an assessment for management and ongoing continence care needs;

Capital supports
(vii)$39,740.35 of assistive technology supports for the purchase of Magic 360 power wheelchair, accessories and associated fitting costs as set out in the Aidacare Healthcare Equipment quote #QTE001000445 dated 29 October 2024;
(viii)$14,524.00 of assistive technology supports for the purchase of Helio C2 Manual Wheelchair, accessories and associated fitting costs as set out in the GTK quote #NO: KC2411-101 dated 8 November 2024;
(ix)$9,018.46 of assistive technology supports for the purchase of medical grade footwear, accessories and associated fitting costs as set out in the BFS Pedorthics quote #25016 dated 22 January 2025 (stated support);
(x)all other reasonable and necessary supports in the Current Plan be replicated pro-rata for 36 months, except the supports listed at paragraph 1(a) above which are intended to be replaced by this decision, and any assistive technology supports in the Capital Supports category that have already been expended; and

(b) the following plan management arrangements:
(i)all plan management arrangements be the same as those in the Current Plan; and

(c)the reassessment date be 36 months after the supports listed at paragraph 1(a) above are included in a statement of participant supports.

2. The Respondent reimburse the Applicant for transport supports at a rate of $1,784.00 per year for the period 1 August 2022 to the date at which the new SOPS is approved.

..........................SGD.........................................
General Member A Colvin
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME –- reasonable and necessary supports – consumables - consideration of s 34 National Disability Insurance Scheme Act 2013 (Cth) – decision set aside.
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 (Cth)
Cases
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Secondary Materials
NDIS – Operational Guidelines - Reasonable and necessary supports
NDIS – Operational Guidelines – Principles we follow to create your plan
NDIS – Operational Guidelines - Including Specific Types of Supports in Plans
NDIS – Operational Guidelines – Assistive Technology (equipment, technology and devices)
NDIS – Operational Guidelines – Continence Supports
Statement of Reasons
BACKGROUND

Ms Priscilla Shepherd (the Applicant) is 57 years old and is a participant in the National Disability Insurance Scheme (NDIS). She has had a below knee amputation and utilises a wheelchair. She also has other physical and mental health conditions. As an NDIS participant, the Applicant has a plan that includes a statement of participant supports (SOPS). This review is about whether the SOPS in her plan should include funding for additional supports.
On 1 August 2022 the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the Agency) approved a SOPS in a plan for the Applicant for the period 1 August 2022 to 1 August 2023 (the August 2022 SOPS).[1] That decision was affirmed on internal review on 17 December 2022[2] and the Applicant then applied to the Administrative Appeals Tribunal (the AAT) on 16 January 2023.[3]
[1] C2.
[2] T2.
[3] T1.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal, and the Tribunal has authority to continue and finalise any aspect of the review not already completed by the AAT.[4]
[4] Transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024.
The hearing took place on 11 and 12 February 2025 by videoconference. The Applicant was represented by her sister, Ms Darlene Shepherd.
Documents available to the Tribunal included a Hearing Bundle (HB), comprised of 1221 pages, lodged by the Agency (Exhibit 1). It includes the Applicant’s Statement of Facts Issues and Contentions (SFIC) [5] and the Agency’s SFIC.[6] The Agency also provided:
·the Applicant’s plan dated 11 February 2025 (the Current Plan) (Exhibit 2);
·a two-page comparison table with two annexures (Exhibit 3);
·NDIS Operational Guidelines on Assistive Technology (equipment, technology and devices) (the Assistive Technology Guidelines) (Exhibit 4);
·a draft order dated 12 February 2025 (Exhibit 5).
[5] G1.
[6] A1.
DECISION UNDER REVIEW
In her application to the AAT, the Applicant sought review of the Agency’s decision dated 17 December 2022 regarding the August 2022 SOPS. Since then, the CEO of the Agency has made decisions dated 22 February 2024, 31 January 2025 and 11 February 2025 to approve SOPS under section 48 of the National Disability Insurance Scheme Act2013 (Cth) (the NDIS Act). The application for review is therefore taken to be an application for review of the decision dated 17 December 2022 to approve the SOPS dated 1 August 2022, and decisions to approve the SOPS in subsequent plans.[7]
[7] Paragraphs 103(2)(c) and (e) of the NDIS Act.
SCOPE OF REVIEW
At a Directions Hearing on 20 December 2024, in accordance with section 53 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) the Tribunal determined the scope of the present review by limiting the issues to whether the following three matters can and/or should be approved as an item in the Applicant's SOPS:
·funding for a manual wheelchair;
·transport funding;
·funding for medical grade footwear.
At the substantive hearing Ms Shepherd confirmed that the Applicant seeks a new 36-month plan containing the same supports that are in the SOPS in the Applicant’s Current Plan plus the following supports (the agreed supports):
(i)an increase in 1:1 support worker assistance for community access from 10 hours to 14 hours/week;
(ii)eight hours/day of inactive overnight support;
(iii)an additional four hours/year of physiotherapy supports (an increase from 52 hours/year to 56 hours/year);
(iv)$3,456/year for transport costs (equivalent to Level 3 transport costs);
(v)$39,740.35 for the purchase of a Magic 360 power wheelchair and accessories as per the quote from Aidacare Healthcare Equipment dated 29 October 2023 (Quote number 0010000445);[8]
(vi)$9,018.46 for medical grade footwear as a stated support, as per the quote from BFS Pedorthics dated 22 January 2025 (Quote number 25016);[9]
(vii)$14,524.00 for the purchase of a Helio C2 Manual Wheelchair and accessories as per the quote from GTK Ultimate Activewear dated 8 November 2024 (Quote number KC2411-101).[10]
[8] D12.
[9] G8.
[10] D28.
Ms Shepherd confirmed that the Applicant also seeks:
(i)$9,506.57/year for continence funding as per the Health Equipment and Consumable Supplies Australia Pty Ltd quote dated 21 May 2024 (excluding Accouche powder free gloves for $770.88 and Aquim hand sanitiser for $218.46) (an increase from $1,698.07);[11]
(ii)funding for prostheses in accordance with a report and quote from Queensland Prosthetics dated 17 January 2025, which recommends an everyday prosthesis ($15,059.07), a water prosthesis ($15,059.07), and associated maintenance (quoted at approximately $5,000/year, subject to whether socket replacement is required);[12]
(iii)payment for transport costs (that were removed from the Applicant’s plan on 1 August 2022) at the rate of $1,784/year (representing Level 1 transport costs) from 1 August 2022 until the date that a new plan comes into effect.
[11] D21.
[12] G5.
Ms Shepherd confirmed that the Applicant sought to have the issues in the present review now include the following matters:
·each of the agreed supports;
·continence funding;
·funding for prostheses;
·payment of transport costs from 1 August 2022.
The Agency agreed that, notwithstanding the direction made under section 53 of the ART Act, the present review could now include these matters, other than funding for protheses. The Agency concedes that a new 36-month plan should be created, that each of the agreed supports should be included in the SOPS in that plan, and that back payment for transport costs is payable at Level 1 for the period from 1 August 2022 until the date a new plan commences. Regarding continence funding, although the Agency does not concede that the full amount of continence funding sought by the Applicant is a reasonable and necessary support, it agrees that continence funding can be determined on the information presently available.
It is appropriate in these circumstances to vary the direction made on 20 December 2024, and now include as issues within the scope of the review, each of the agreed supports, together with continence funding and back payment for transport costs.
In relation to funding for prostheses, the Agency submitted that this issue should not be included within the scope of the present review. I accept that submission, noting the matters below.
The directions that were made on 20 December 2024, under section 53 of the ART Act, were made to enable the parties to prepare for hearing. The Agency, in preparing for the hearing, has relied on those directions.
The SOPS in the Applicant’s current plan include funding of $24,444 for a ‘prosthetic’. Ms Shepherd did not raise the adequacy of funding for prostheses, or funding for a new support (a water prostheses) as an issue in dispute at the Directions Hearing on 20 December 2024. She had previously been informed about the amount of funding in the Applicant’s plan for a prosthesis, including in September 2024.[13] In an email dated 19 December 2024 Ms Shepherd simply sought confirmation that assistive technology funding remained in the Applicant’s plan.[14] Neither the adequacy of funding for prostheses, nor funding for a new support (a water prosthesis) were raised as issues until Ms Shepherd received the report and quote from Queensland Prosthetics and forwarded that to the Agency’s legal representatives in January 2025. This was shortly before the hearing.
[13] G1.
[14] G11.
If the Tribunal included consideration of funding for prostheses as an issue in the present review, that would necessitate an adjournment to afford the Agency an opportunity to present its case regarding that issue. This application was made more than two years ago. The objectives in section 9 of the ART Act require the Tribunal to provide a review mechanism that is fair and just and ensures applications are resolved quickly and with as little formality and expense as a proper consideration of the matters before the Tribunal permits.
The funding in the Current Plan for a prosthesis has been in place for some time, but the Applicant has not sought to utilise it. The funding is Agency managed and there is a process to follow to seek access to it. The Agency’s Operational Guidelines, the Assistive Technology Guidelines, set out the information required to include high-cost assistive technology in a plan, and what needs to be done before buying assistive technology. The NDIS Act also allows for a process of seeking additional or different supports, and a process of internal review of those decisions, and review by the Tribunal.
Having regard to these matters I am satisfied that the issue of funding for prostheses should remain outside the scope of the present review, as directed on 20 December 2024.
THE ISSUES
The issue for determination in these proceedings is whether each of following are reasonable and necessary supports for the Applicant under subsection 34(1) of the NDIS Act:
·each of the agreed supports;
·continence funding;
·payment of transport costs from 1 August 2022.
THE LAW
The legislative framework
The statutory provisions relevant to this application for review are found within the NDIS law, including:
·the NDIS Act;
·the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Supports Rules);
·the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth) (the Miscellaneous Provisions Transitional Rules); and
·the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth) (the NDIS Supports Transitional Rules).
The Agency also issues Operational Guidelines. The Tribunal is not bound to follow Operational Guidelines issued by the Agency but, in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task.[15] Operational Guidelines considered in the present matter, published by the Agency on its website, include the following:[16]
·Principles we follow to create your plan;
·Reasonable and necessary supports;
·Including Specific Types of Supports in Plans;
·the Assistive Technology Guidelines;
·Continence Supports (the Continence Supports Guidelines).
[15] Re Drake v Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634.
[16] Webpage: ourguidelines.ndis.gov.au.
Approving SOPS in participants’ plans
Section 3 of the NDIS Act sets out the objects of the NDIS Act. Sections 4 and 5 set out general principles guiding actions under the NDIS Act. Sections 17A and 31 of the NDIS Act also set out principles that relate to participation in the NDIS and plans.
If a person becomes a participant, under section 32 of the NDIS Act the CEO must facilitate the preparation of a plan for the participant. The Applicant’s Current Plan is an ‘old framework plan’. For those plans, section 33 of the NDIS Act sets out the matters that must be included in a participant’s plan. A plan must include a statement of the participant’s goals and aspirations. It must include a SOPS, prepared with the participant and approved by the CEO. The SOPS in a participant’s plan must specify, among other things, ‘the reasonable and necessary supports (if any) that will be funded’ under the NDIS.[17]
[17] Paragraph 33(2)(b) of the NDIS Act.
When approving a SOPS in a participant’s plan, the CEO must comply with the mandatory requirements contained in subsection 33(5) of the NDIS Act. One of the requirements in subsection 33(5) is that the CEO ‘be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded’: paragraph 33(5)(c).
Subsection 34(1) of the NDIS Act deals with ‘reasonable and necessary supports’. The matters set out in subsection 34(1) are more than mandatory considerations; they are more in the nature of criteria that the decision‑maker must be positively satisfied about on the material.[18]
[18] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at 201.
Subsection 34(1) is as follows:
34 Reasonable and necessary supports
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(aa)the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is an NDIS support for the participant.
Note: For the purposes of paragraph (aa):
(a)the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b)a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
The Support Rules are also relevant in determining whether the requirements in subsection 34(1) of the NDIS Act are met.[19] Part 3 of the Supports Rules contains provisions related to assessing whether a support is value for money (Rule 3.1).
[19] Subsection 35(2) of the NDIS Act.

The provisions of the NDIS Act and Rules set out above reflect the current legislation. The NDIS Act was amended on 3 October 2024 by the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth) (the Amending Act). The amendments to section 34 apply in relation to a SOPS included in an old framework plan for a participant if the SOPS is approved or varied on or after 3 October 2024.[20]
[20] Item 129(1), part 3, schedule 1 of the Amending Act.
CONSIDERATION
The Agency concedes that the agreed supports are reasonable and necessary supports that should be included in the SOPS in a new 36-month plan, and that payment of transport funding at level 1 should be paid from August 2022 until the commencement of that plan. I am satisfied that those concessions are appropriately made and that these are reasonable and necessary supports pursuant to subsection 34(1) of the NDIS Act.
Regarding funding for consumables for continence, the evidence before the Tribunal includes quotes for consumables from Health Equipment and Consumable Supplies Australia Pty Ltd dated 28 June 2023[21] and 21 May 2024.[22] The most recent quote totals $9,506.57 for one year of supplies (after excluding Accouche powder free gloves for $770.88 and Aquim hand sanitiser for $218.46).
[21] D8.
[22] D21.
There is also a report dated 27 June 2023 from Ms Woolford, Clinical Nurse, Community Nurse Service. She noted the possible impact of a recent move to more suitable accommodation. She also suggested some strategies that may benefit the Applicant. She concluded her report by stating that the Applicant’s care needs, in relation to continence, were stable with potential for improvement. She recommended that review occur annually or as requested by family.[23] Ms Shepherd also gave oral evidence regarding the process involved in obtaining that assessment. She said it involved an assessor attending the Applicant’s home for a ‘few hours’, then writing a report.
[23] D7 at p 337.
Based on that material, the Agency considers that the following are reasonable and necessary supports that should be included in a new plan:
·$9,506.57 of funding for the first 12-month period;
·$1,698.07 of funding for each of the second and third 12-month periods;
·five hours per year of continence nurse supports to provide an assessment for management and ongoing continence care needs.
The Agency considers that five hours is appropriate for funding for an assessment, having regard to the nature of the previous assessment and report. It also points to advice from the Agency’s Technical Advice and Practice Improvement Branch.[24]
[24] E7 at p 582.
Ms Shepherd agrees that an amount of $9,506.57/year for consumables for the first year should be included in the SOPS for the Applicant’s proposed new plan. She contends that, if the Tribunal decides that a reassessment should occur at the end of the first year, then the new SOPS should include funding of 10 hours, rather than five, for that assessment as this amount would enable a comprehensive assessment.
Ms Shepherd contends, however, that rather than funding a reassessment, the same amount should be allocated for the second and third years, totalling $28,519.71 over three years. Ms Shepherd says the Applicant’s disability is lifelong and her needs are not going to change so, rather than requiring the Applicant to seek funding each year, an appropriate amount should be allocated in the SOPS in the current plan and then ‘rolled over’ in the next year, or ‘indexed’. Ms Shepherd is concerned that if the Applicant is required to undergo an assessment each year there may be a long delay before funds are available, or the Applicant may lose funding. Ms Shepherd emphasised that the current process had taken 25 months, that it is very stressful, and that the Applicant requires these supports for her everyday life.
In deciding whether a support is a reasonable and necessary support, paragraph 34(1)(aa) of the NDIS Act requires that the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements or early intervention requirements. Paragraph 34(1)(c) also requires that 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.
It is not contentious that in years two and three of the new plan consumables for continence will be necessary to address needs of the Applicant arising from an impairment that meets the disability requirements. However, Ms Woolford noted scope for improvement and recommended an assessment after one year. Based on that evidence I am unable to be satisfied that funding in years two and three at the level requested by the Applicant is necessary to address needs of the Applicant, or that it represents value for money.
Regarding funding for an assessment, Ms Woolford’s written report is not lengthy, and Ms Shepherd’s evidence was that the in-home assessment took a ‘few’ hours. Based on that evidence, I am not satisfied that funding at the higher level requested by the Applicant (of 10 hours) is necessary to address needs of the Applicant, or that it represents value for money.
I am therefore not satisfied that the requirements in paragraphs 34(1)(aa) and (c) of the NDIS Act are met for continence funding at the level requested by the Applicant. I am satisfied that they are met for funding at the level proposed by the Agency. The Agency concedes that the remaining requirements of section 34 are met for continence funding at the level it has proposed. That concession is appropriately made.
This means that I find that each of the agreed supports, continence funding at the level proposed by the Agency, and payment of transport costs from 1 August 2022 to the start of a new plan, are all reasonable and necessary supports pursuant to subsection 34(1) of the NDIS Act.
DECISION
The Tribunal sets aside the decision under review and remits this matter to the Respondent with directions that:
1. A new statement of participant supports (SOPS) be approved for the Applicant, which specifies:
(a)the following reasonable and necessary supports:
Core supports
(i)the current 10 hours per week of assistance with community access supports in the plan dated 11 February 2025 (Current Plan) be replaced with two hours per day calculated at standard weekday daytime, Saturday, Sunday and public holiday rates;
(ii)seven days per week of night-time sleepover supports (inactive overnight supports);
(iii)the current $1,698.08 per year of continence consumables supports in the Current Plan be replaced with the following continence consumables supports:
(A) $9,506.57 of funding for the first 12-month period as per the Health Equipment and Consumable Supplies Australia Pty Ltd quote dated 21 May 2023 but excluding Accouche powder-free gloves for $770.88 and Aquim hand sanitiser for $218.46 (updated quote to be provided);
(B) $1,698.07 of funding for each of the second and third 12-month periods being the value of Continence Package C - Intermittent Moderate supports;
(iv)$3,456 per year for level 3 transport support;
Capacity building supports
(v)the current 52 hours per year of physiotherapy supports in the Current Plan be replaced with 56 hours per year of physiotherapy supports;
(vi)five hours per year of continence nurse supports to provide an assessment for management and ongoing continence care needs;
Capital supports
(vii)$39,740.35 of assistive technology supports for the purchase of Magic 360 power wheelchair, accessories and associated fitting costs as set out in the Aidacare Healthcare Equipment quote #QTE001000445 dated 29 October 2024;
(viii)$14,524.00 of assistive technology supports for the purchase of Helio C2 Manual Wheelchair, accessories and associated fitting costs as set out in the GTK quote #NO: KC2411-101 dated 8 November 2024;
(ix)$9,018.46 of assistive technology supports for the purchase of medical grade footwear, accessories and associated fitting costs as set out in the BFS Pedorthics quote #25016 dated 22 January 2025 (stated support);
(x)all other reasonable and necessary supports in the Current Plan be replicated pro-rata for 36 months, except the supports listed at paragraph 1(a) above which are intended to be replaced by this decision, and any assistive technology supports in the Capital Supports category that have already been expended; and
(b)the following plan management arrangements:
(i)all plan management arrangements be the same as those in the Current Plan; and
(c)the reassessment date be 36 months after the supports listed at paragraph 1(a) above are included in a statement of participant supports.
2. The Respondent reimburse the Applicant for transport supports at a rate of $1,784.00 per year for the period 1 August 2022 to the date at which the new SOPS is approved.

1.

2.       I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of General Member A Colvin.

..................................................
Associate
24 February 2025

Dates of hearing: 11 and 12 February 2025

Solicitor for the Respondent: Mr J Heard, Maddocks Lawyers

Counsel for the Respondent: Mr A Hartnett