Sparkes and The Chief Executive Officer, National Disability Insurance Agency (NDIS) [2025] ARTA 561 (14 May 2025)
Reviewnumber: 2022/0073, 2024/7551
Applicant/s: Tiffany Sparkes
Respondent: The Chief Executive Officer, National Disability Insurance Agency
Tribunal Number: 2022/0073 and 2024/7551
Tribunal:General Member S Smith
Place:Brisbane
Date:14 May 2025
Decision:The Tribunal, pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth) sets aside the decision under review and remits this matter for reconsideration by the Respondent with a direction that it facilitates the approval of a new statement of participant supports (‘SOPS’) for the Applicant, which contains the following:
(a) Provisions approving NDIS funding for:
(i)An additional 16 hours of domestic cleaning at the weekday rate for a ‘once-off’ decluttering of the Applicant’s living environment;
(ii)Replication, on a pro rata basis, of all of the other supports in the Applicant’s current SOPS.
(b) A provision specifying that the reassessment date will fall on the 12-month anniversary of the date of approval of the new SOPS for the Applicant in accordance with this direction; and
(c) Provisions specifying that the plan management specifications in the new SOPS are to remain the same as specified in the current SOPS.
................[SGD]...................
General Member S Smith
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME –participant supports – plan review - consumables – domestic cleaning and gardening – transport – short term accommodation – psychology – occupational therapy - physiotherapy – exercise physiology – training and skill development – funding for equestrian support – funding for equine assisted learning – assistive technology - reasonable and necessary supports – consideration of section 34 National Disability Insurance Scheme Act 2013 (Cth) - decision under review set aside and remitted with a direction that a new statement of participant supports be approved for the Applicant
Legislation
Administrative Appeals Tribunal Act 1975(Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
National Disability Insurance Scheme Act 2013 (Cth) s34, s35
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024
National Disability Insurance Scheme (Becoming a Participant) Rules – 2016, Access Rules – 5.4
National Disability Insurance Scheme (Supports for Participants) Rules - 1 July 2013, Rules - 3, 5National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024
Cases
Beezley v Repatriation Commission (2015) FCAFC 165
BMCX and CEO of the National Disability Insurance Agency [2025] ARTA 199
JQJT and National Disability Insurance Agency [2016] AATA 478
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Malouf v and CEO of the National Disability Insurance Agency [2025] ARTA 97
Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 233 FCR 201.
NDIA v KKTB, by her litigation representative CVY22 [2022] FCAFC 181
National Disability Insurance Agency v WRMF (2020) 276 FCR 415
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60SCHW and National Disability Insurance Agency [2021] AATA 591
WVGM and CEO of the National Disability Insurance Agency [2025] ARTA 47
Secondary Materials
NDIS – Operational Guidelines - Reasonable and necessary supports, 22 September 2024.
NDIS – Principles we follow to create your plan, 22 September 2024.
NDIS – Creating your plan, 28 February 2025.
NDIS Pricing Arrangements and Price Limits, 2024/25
NDIS Transport Funding
Statement of Reasons
Ms Sparkes is a 33-year-old woman who lives with her horse, dogs and cats in Queensland. Ms Sparkes has a history of caring for animals and volunteering for animal welfare.[1]
[1] Oral evidence of Ms Sparkes. EB-8.
Ms Sparkes became a participant in the National Disability Insurance Scheme (‘scheme’) on 23 July 2019.[2] The scheme is administered by the National Disability Insurance Agency (‘Agency’) pursuant to the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’).
[2] EB-7, Annexure B.
Ms Sparkes was granted access to the scheme for psychosocial impairments attributable to ‘Aspergers Syndrome’[3] now referred to as Autism Spectrum Disorder (‘ASD’), pursuant to the ‘disability requirements’ under section 24 of the NDIS Act.
[3] EB-7, Annexures A and C. In 2013, the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) replaced Asperger’s with the umbrella term Autism Spectrum Disorder (ASD). >
On 10 November 2021, a delegate of the Agency approved a Statement of Participant Supports (‘SOPS’) for Ms Sparkes.[4] On 8 December 2021, Ms Sparkes requested a review of the original decision.[5] On 5 January 2022, a different delegate of the Agency confirmed the original decision under s100 of the NDIS Act[6] (‘internal review decision’).
[4] Pursuant to section 33(2) of the NDIS Act. H10/T6. Plan from 10 November 2021-10 November 2022.
[5] Pursuant to s100 of the NDIS Act. H8/T4.
[6] H4 and H6. T1B and T2.
On 5 January 2022, Ms Sparkes applied to the Administrative Appeals Tribunal (‘AAT’) for review of the internal review decision under section 103 of the NDIS Act.[7]
[7] H2/T1.
There have been three remittals of the internal review decision pursuant to section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’).[8] The Tribunal continued to retain jurisdiction over the decision to approve the SOPS as varied.
[8] H1. H44/T30, H45/T31.
On 1 March 2024 and again on 4 June 2024, Ms Sparkes’ plan was varied pursuant to section 47A of the NDIS Act.[9] On 25 June 2024 Ms Sparkes requested internal review of the 1 March 2024 variation pursuant to section 100 of the NDIS Act.[10]
[9] Item 68 of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 with effect from 1 July 2022.
[10] H36/T22.
On 23 August 2024 the Agency conducted a section 48 NDIS Act reassessment of Ms Sparkes’ plan and approved a new SOPS. Pursuant to section 101(2)(d) of the NDIS Act the reassessment dated 23 August 2024 was taken to be a part of the request for internal review. The Agency decided under section 100 of the NDIS Act to confirm this second internal review decision.[11]
[11] H15 and H16. T1A and T2. The second internal review decision was dated 17 September 2024.
On 30 September 2024 Ms Sparkes applied to the AAT for review of the Agency’s second internal review decision.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
At a case management directions hearing on 18 December 2024 the Tribunal directed that Ms Sparkes’ applications, 2022/0073 and 2024/7551, were to be joined. The Tribunal is satisfied it has jurisdiction[12] to determine, Ms Sparkes’ application including the current SOPS dated 17 March 2025.[13]
[12] Section 103(2) of the NDIS Act.
[13] H1 [25]. H84, Plan 17 March 2025 to 16 September 2025. EB-5 breakdown of current SOPS.
The hearing was held via Microsoft Teams on 14 April 2025. Ms Sparkes was self-represented, attended via telephone at times due to connection issues, and was supported by her advocate, Ms Miia Tolvanen. The Agency was represented by Mr PM Nolan of Counsel instructed by the Agency’s internal lawyer, Mr Daniel Tkaczuk.
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal marked evidence received as Exhibit Bundles (‘EB’):
·EB-1 – Consolidated hearing bundle, filed 3 April 2025 – 310 pages;
·EB-2 – Consolidated hearing Bundle – 691 pages;
·EB-3 – Consolidated hearing Bundle – 34 pages;
·EB-4 – Applicant NDIS Participant Impact Statement, undated, 2 pages;
·EB-5 –Breakdown of funding for Participant Plan 17 March 2025, 1 page;
·EB-6 – Applicant Excel Weekly Timetable, undated, 8 pages;
·EB-7 – Respondent’s closing submissions, 17 April 2025, including Annexures A, B and C, 33 pages; and
·EB-8- Applicant’s closing submissions, 24 April 2025, 20 pages.
ISSUES IN CONTENTION AT THE HEARING
Ms Sparkes pressed the following issues at the hearing. Firstly, to have further psychosocial and physical impairments recognised under the scheme. Secondly, an increase in funding for her requested supports. Thirdly, Ms Sparkes stated, ‘I want my supports to be changed back to being plan managed.’[14]
[14] Oral evidence of Ms Sparkes.
Ms Sparkes contends that she has ‘significant impairments, including Autism Level 2, Bipolar Disorder, Depression, Anxiety, Panic Disorder, Scoliosis, incontinence, severe sensory issues and nil executive function.’[15]
[15] EB-8, p. 18.
Ms Sparkes seeks additional funding for 13 supports (the ‘requested supports’):[16]
[16] Oral evidence of Ms Sparkes. EB-8 [3].
(i)Consumables – the provision of incontinence products, mobility aids, and adaptive tools at a cost of $1000.00;
(ii)Domestic cleaning – 2 hours per week for routine cleaning, including continued decluttering and managing clutter;
(iii)Gardening – 2 hours per fortnight;
(iv)Daily life assistance and community participation – 70 hours per week; 10 hours per day, 7 days a week, including weekends and public holidays;
(v)Transport – Level 3 funding - provision for alternative transport options due to issues related to autism, executive function, incontinence, anxiety;
(vi)Short-term accommodation (‘STA’) – 28 days per year for respite and support;
(vii)Psychology – 26 hours of support, weekly psychology sessions, plus unspecified report writing;
(viii)Occupational Therapy (‘OT’) - 26 hours of support, weekly OT sessions, plus unspecified report writing;
(ix)Physiotherapy - 26 hours of support, weekly physiotherapy sessions, plus unspecified report writing;
(x)Exercise Physiology - 26 hours of support, weekly exercise physiology sessions, plus unspecified report writing;
(xi)Training and Skill Development – 52 hours of support, 2 hours per week;
(xii)Equestrian Support - 52 hours of support, 2 hours per week;
(xiii)Equine Assisted Learning (‘EAL’) – 26 hours of support, weekly EAL support, plus unspecified report writing;
Ms Sparkes stated regarding her plan management – ‘I want plan managed not Agency managed funding’.[17]
[17] Oral evidence of Ms Sparkes.
The Agency contends that Ms Sparkes was granted access to the scheme pursuant to section 24 of the NDIS Act only on the basis of psychosocial impairments attributable to Asperger’s Syndrome.[18]
[18] EB-7 [4]-[5].
The Agency contends that Ms Sparkes’ ‘requested supports’ for increased amounts of support at [16] are not reasonable and necessary pursuant to section 34 of the NDIS Act. However, the Agency concedes that Ms Sparkes should be provided with 16 hours of domestic cleaning at the weekday rate for a ‘once-off decluttering of Ms Sparkes’ living environment.’[19]
[19] EB-7, p. 2.
The Agency contends that Ms Sparkes’ plan management should continue as currently listed in the SOPS which is:[20]
·Assistance with daily life - a stated support and Agency managed;
·Assistance with Social, Economic and Community Participation - a stated support and plan managed;
·Consumables - a flexible support and plan managed;
·Choice and Control Capacity Building support - a stated support and plan managed;
·Improved daily living skills - a stated support and Agency managed;
·Increased social and community participation - a stated support and Agency managed;
·Support Coordination and Psychosocial recovery coaches - a stated support and plan managed; and
·Recurring transport – a stated support and self-managed.
[20] EB-2, H84.
The Tribunal must determine whether Ms Sparkes’ contentions and the requested supports are:
·Reasonable and necessary supports under section 34 of the NDIS Act to justify the spending of public funds; and
·Capable of being funded by the scheme in order to be included in Ms Sparkes’ SOPS in compliance with the relevant scheme criteria and rules.
THE LEGAL FRAMEWORK
The National Disability Insurance Scheme Act 2013 (Cth)
I have had regard to the NDIS Act objectives stated in section 3 and the general principles and guiding actions taken under the NDIS Act in section 4. I acknowledge that Ms Sparkes identified that ‘people with disability have the right to realise their potential for physical, social, emotional and intellectual development.[21]
[21] Section 4(1) of the NDIS Act. EB-8, pp 16-20.
Section 34 of the NDIS Act sets out what is a ‘reasonable and necessary support’ under the Scheme.
At the time of Ms Sparkes’ application to the Tribunal, section 34 of the NDIS Act provided as follows:
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:
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is most appropriately funded or provided through the NationalDisability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
However, on 3 October 2024, and also prior to this review the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (‘Amending Act’) commenced. The Amending Act provided amendments to the NDIS Act including amendments to section 34 of the NDIS which will apply to Ms Sparkes’ review.[22]
[22] Section 129 Amending Act. NDIS Amendment (Getting the NDIS Back on Track No 1) Act 2024.
The amended section 34 of the NDIS Act provides as follows:
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 participantmeets 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 (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 participantmeets 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). (Tribunal emphasis to indicate amendments)
The section 34(1) criteria of the NDIS Act are cumulative; therefore, all the criteria must be satisfied. Moreover, the Tribunal must be positively satisfied about each criterion and the Applicant has a ‘common sense onus to adduce sufficient evidence to satisfy the Tribunal that the criteria are met.[23]
[23] See Beezley v Repatriation Commission (2015) FCAFC 165 at {68}. Per North, Tracey and Mortimer JJ. See also National Disability Insurance Agency v WRMF (2020) 276 FCR 415 at [201].
Section 34(1)(aa) of the NDIS Act imposes an additional criteria requirement. This involves a consideration of whether the support that Ms Sparkes seeks is necessary to address her needs which arise from the impairment/s for which she met the disability requirements under section 24 or the early intervention requirements under section 25 of the NDIS Act.
The ‘previous’ section 34(1)(f) of the NDIS Act has been replaced with ‘new’ section 34(1)(f) which requires that the support be a ‘NDIS support.’
Section 10 of the NDIS Act provides a definition of what is a ‘NDIS Support’ pursuant to section 34(1)(f) of the amended NDIS Act, and states as follows:
Supports that are NDIS supports
(1) Subject to subsections (4) and (9), a support is an NDIS support for a person who is a participant or prospective participant if the support is declared by National Disability Insurance Scheme rules made for the purposes of this subsection to be an NDIS support for :
(a) participants or prospective participants generally; or
(b) a class of participants or prospective participants that includes the person.
Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003 ).
(2) Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (1), the Minister must be satisfied:
(a) for rules to which paragraph (1)(a) applies--that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or
(b) for rules to which paragraph (1)(b) applies--that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.
(3) National Disability Insurance Scheme rules may declare a support for the purposes of subsection (1) only if at least one of the following applies:
(a) the declaration of the support implements Australia's obligations under:
(i) the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006; or
(ii) any other agreement with one or more other countries;
(b) the declaration of the support enables the provision of sickness benefits.
Note: For subparagraph (a)(i), the Convention on the Rights of Persons with Disabilities is in Australian Treaty Series 2008 No.12 ([2008] ATS 12) and could in 2024 be viewed in the Australian Treaties Library on the website ( are not NDIS supports
(4) The National Disability Insurance Scheme rules may declare that a support is not an NDIS support for:
(a) participants or prospective participants generally; or
(b) a class of participants or prospective participants.
Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003 ).
(5) Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (4), the Minister must be satisfied:
(a) for rules to which paragraph (4)(a) applies--that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or
(b) for rules to which paragraph (4)(b) applies--that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.
(6) The CEO may determine, in writing, that a support is taken to not be declared under subsection (4) in relation to a participant if:
(a) the support is prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and
(b) the support would, apart from subsection (4), be an NDIS support for the participant; and
(c) the participant applies to the CEO in accordance with subsection (7) for the determination; and
(d) the CEO is satisfied that:
(i) the support would replace one or more other supports that are NDIS supports for the participant; and
(ii) the cost of the support is the same or lower than the total of the costs of the supports it would replace; and
(iii) the support would provide the same or a better outcome for the participant than the supports it would replace; and
(iv) any other conditions specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph are met in relation to the support, the participant, or both.
Note 1: A determination may be revoked under subsection 33(3) of the Acts Interpretation Act 1901 .
Note 2: The National Disability Insurance Scheme rules may prescribe a support for the purposes of paragraph (a) by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003 ).
(7) An application under paragraph (6)(c) must:
(a) be in the form (if any) approved by the CEO; and
(b) include any information, and be accompanied by any documents, required by the CEO; and
(c) be made in accordance with any other requirements specified in the National Disability Insurance Scheme rules for the purposes of this paragraph, which may include requirements as to the circumstances in which an application may, or may not, be made.
(8) The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of subsection (6), including by prescribing requirements with which the CEO must comply, methods or criteria that the CEO is to apply, or matters that the CEO may, must or must not take into account, in deciding whether to make a determination under that subsection.
(9) A support is not an NDIS support for a participant or prospective participant if the support consists of the provision of:
(a) sexual services; or
(b) alcohol; or
(c) drugs, the possession of which is a contravention of a law of the Commonwealth, a State or a Territory.
There is also the consideration of section 34(2) of the NDIS Act which outlines that the NDIS rules may prescribe methods or criteria to be applied, or matters the CEO must consider, in deciding whether a requested support satisfies the criteria under section 34(1) of the NDIS Act.
Part 2 of the NDIS Act deals with a participants’ plan. Division 2 of Part 2 concerns the preparation of participants’ plans. Section 32(1) imposes a mandatory obligation on the CEO to facilitate the preparation of the participant’s plan. Section 33 of the NDIS Act specifies the matters that must be included in a participant’s plan: the participant’s statement of goals and aspirations; the SOPS; and it may include any additional matters prescribed by NDIS rules.[24]
[24] Section 33(1), 33(2) and 33(7) of the NDIS Act.
Section 35 of the NDIS Act allows for rules to be made with respect to the prescription of ‘reasonable and necessary supports’ or ‘general supports’ that will be funded or provided under the scheme.
For Ms Sparkes’ review the relevant rules include the: National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘Supports Rules’), the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (‘Access Rules’) and National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (‘Transitional Rules’).
Part 3 of the Supports Rules set out criteria that the Tribunal must consider. Part 5 contains general criteria regarding supports and the supports that will not be funded.
Relevantly in this case, Rules 3 and 5 of the Supports Rules state as follows:
Value for money
3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d) for supports that involve the provision of equipment or modifications:
(i) the comparative cost of purchasing or leasing the equipment or modifications; and
(ii) whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
Effective and beneficial and current good practice
3.2 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.
General criteria for supports
5.1 A support will not be provided or funded under the NDIS if:
(a) it is likely to cause harm to the participant or pose a risk to others; or
(b) it is not related to the participant’s disability; or
(c) it duplicates other supports delivered under alternative funding through the NDIS; or
(d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b) costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
The Access Rules at Part 5 provide considerations for when a person meets the disability requirements. Rule 5.1(b) states
The person’s impairment or impairments are, or are likely to be, permanent…
Rule 5.4 of the Access Rules states
An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
The Transitional Rules are also relevant to Ms Sparkes’ review. Schedule 1 of the Transitional Rules sets out supports that are NDIS Supports, unless otherwise provided, for the purposes of s 10(1) of the NDIS Act. Schedule 2 of the Transitional Rules identifies supports that generally are not NDIS supports for the purposes of s 10(1) of the NDIS Act.
In regard to supports rules, Mortimer J (as Her Honour then was) observed in McGarrigle v National Disability Insurance Agency (‘McGarrigle’)[25]:
‘The [supports rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement…some policy decision-making about the nature and extent of supports to be provided or funded.’
[25] McGarrigle v National Disability Insurance Agency [2017] FCA 308 (‘McGarrigle’) [43].
There is no definition of ‘reasonable and necessary’ in the NDIS Act. The Full Court in National Disability Insurance Agency v WRMF[26] (‘WRMF’) considered the meaning of reasonable and necessary supports, and stated as follows:
The phrase is a composite phrase. ... each limb of the phrase should be given work to do. That task is not difficult, or complicated with these two particular words, which are readily understood as conveying different meanings. However, the Parliament has chosen to use a composite phrase rather than to stipulate two distinct requirements, and therefore, as Gleeson CJ cautioned in XYZ v Commonwealth [2006] HCA25; (2006) 227 CLR532 at [19], '[t]here are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts'.
…Both adjectives qualify the noun “support”, but they do so as a composite phrase. It is not fruitful to split them off and consider them separately, just as it is neither fruitful nor appropriate to attempt any exhaustive or authoritative judicial definition of them.
Nevertheless, there 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. (Tribunal emphasis)
[26] National Disability Insurance Agency v WRMF [2020] FCAFC 79 (‘WRMF’) [149]-[151].
The Tribunal also needs to consider that the requested supports accommodate the participant’s particular impairments in order for them to be a participating member of the Australian community, in light of the values that are set out in the guiding principles and objects of the NDIS Act.[27]
[27] WRMF [141]. Cited with approval in NDIA v KKTB, by her litigation representative CVY22 [2022] FCAFC 181 [129].
Agency’s Operational guidelines
The Agency has issued Operational guidelines in regard to what are considered to be ‘reasonable and necessary supports for participants.’ Unless the Operational guidelines are inconsistent with the provisions or objects of the NDIS legislation, they are to be taken into account[28] in deciding what is a reasonable and necessary support for Ms Sparkes.
[28] See SCHW and National Disability Insurance Agency [2021] AATA 591 [13] where DP Constance referred to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.
I have considered the following NDIS Operational guidelines – ‘reasonable and necessary supports,’ ‘principles we follow to create your plan’, ‘creating your plan,’ ‘transport funding,’ Short-Term Accommodation or Respite,’ and NDIA Pricing Arrangements and Price Limits 2024/25.[29]
[29]Operational guidelines: ‘Reasonable and necessary supports’ on 22 September 2024; ‘Principles we follow to create your plan’ on 22 September 2024; and ‘Creating your plan’ on 28 February 2025, Transport Funding on 3 October 2024. Short Term Accommodation or Respite on 24 June 2022. NDIS Pricing Arrangements and Price Limits 2024.25 on 1 October 2024.
EVIDENCE
I have considered the oral evidence, the filed written evidence and the closing submissions. For the reasons that follow, I summarise and refer to the more salient aspects of the evidence in respect of this application for review.
Evidence about Ms Sparkes
Ms Sparkes contends that she is ‘profoundly impacted by mental health conditions including bipolar disorder, depression, anxiety and panic disorder as well as physical health issues such as scoliosis and incontinence, severe sensory issues and nil executive function.’[30]
[30] EB-8, p. 16, 18,
I refer to Ms Sparkes’ undated statement of lived experience[31] her ‘disability explanation’ and her ‘impact statements’ in full.[32] Ms Sparkes currently lives in her own caravan on her friend’s property, where she has resided for over five years. Ms Sparkes lived in a ‘tiny home’ on this same property from August until December 2024.[33]
[31] EB2, H41.
[32] EB-2, H75. EB-8 , p 7.
[33] Oral evidence of Ms Sparkes. EB-4, p. 1.
I note that Ms Sparkes has no informal supports in her residential area[34] and that she has received the Disability Support Pension (DSP) since late 2020.[35]
[34] Oral evidence of Ms Sparkes.
[35] EB-1, H19, p 268.
Ms Sparkes’s current SOPS contains four goals:[36]
·To be supported in short term accommodation, to build on skills that I am not able to build on in my current home environment and have support to assist with skills to manage my medications, anxiety and mental health.
·To continue living in my current home with supports to assist me with tasks that include cleaning, maintaining my home, skill building, managing and monitoring my medications, motivation to participate in community access activities, assist me with caring and training of animals which is a passion of mine;
·To participate in community activities and learn to ride a horse, learn and do art, photography, gardening and sewing to increase my interests which will also have a positive effect on my mental health.
·To be considered for an assistance dog to help manage my autism and mental health. I would like to have ongoing access to therapies that increase my mental and physical health and wellbeing.
[36] EB-2, H84, pages 432-434.
I refer in full to Ms Sparkes’ closing submissions of 24 April 2025 where she contends why her 13 requested supports are reasonable and necessary under the appropriate ‘requested support’ headings in my considerations.[37] Ms Sparkes also requests that her supports ‘be plan managed…because the prospect of changing support would create significant anxiety and disruption.’[38]
[37] EB-8.
[38] EB-8, p. 17.
Ms Lisa Davis, occupational therapist, Synergy Rehab Solutions
Ms Davis assessed Ms Sparkes on 6 June and 8 July 2020 and provided a functional assessment report for Ms Sparkes on 12 July 2020.[39]
[39] EB-1, H18, pp 260-267
Ms Davis’ assessment considered the ‘combined’ aspects of Ms Sparkes’ ‘autism, depression, bipolar disorder, panic attacks and scoliosis.’[40]
[40] EB-1, H18, p 265.
Ms Davis’ report recommends that Ms Sparkes have access to:
·An increase in her core supports for a support worker daily;
·Access to regular short-term accommodation (STA) to allow her opportunity for increased community access and participation;
·Regular STA to allow for specialist services and therapists to increase her functional capacity; and
·Access to allied health.
Ms Siobhan Hooper, Registered Nurse, Illuminate Care Service
Ms Hooper assessed Ms Sparkes and provided a ‘continence assessment report’ on 1 April 2021.[41] Ms Sparkes reported to Ms Hooper that after [her] surgery she experienced the following:
·A variety of incontinence for approximately 4 years which became worse since the hysterectomy 2 years ago;
·A history of endometriosis resulting in several gynaecological surgeries in the last 4 years which all involved the bladder;
·Urge and stress incontinence daily; and
·Recurrent urinary tract infections.
[41] EB-1, H20, pp 270-272.
Ms Katee Maller, occupational therapist, Ability Action Australia
Ms Maller assessed Ms Sparkes at her home and at a nearby cafe for a ‘Support Care and Needs Assessment and Report’ on 8 February 2023 and provided a 38-page report on 21 March 2023.[42]
[42] EB-1, H23, continues at EB-2, H23, pp287-310; pp 1-14.
Ms Maller took into account all of Ms Sparkes’ psychiatric and physical disabilities in the assessment.[43]
[43] EB-1, H23, pp289-290.
Ms Maller recommended that Ms Sparkes requires:[44]
·Ongoing assistance from an OT;
·Ongoing psychology;
·Ongoing specialist support coordination;
·1:1 support for 24 hours per day;
·Support workers to ‘prompt’ Ms Sparkes to attend to activities of daily living;
·Support workers to take Ms Sparkes out to community activities; and
·Occupational therapy support for recommendations with assistive technology.[45]
[44] EB-2, H23, pp 9-10, 14.
[45] EB-2, H23, p. 12.
In summary, Ms Sparkes relied on Ms Maller’s ‘comprehensive and detailed report.’[46]
[46] EB-8, p. 2.
Mr Cameron Wallace, physiotherapist, Sunshine Coast Rehabilitation and Exercise Physiology
Mr Wallace first assessed Ms Sparkes and produced a report on 22 June 2023.[47] Ms Sparkes relies on this report.[48]
[47] EB-2, H24, p 15.
[48] EB-8.
Mr Wallace recommended weekly physiotherapy over ‘the next 3 months’ then progress to fortnightly physiotherapy’…to manage physical pain.[49]
Ms Jessica Radford, accredited exercise physiologist, Sunshine Coast Rehabilitation and Exercise Physiology
[49] EB-2, H24, p. 21.
Ms Radford first assessed Ms Sparkes on 28 June 2023 and produced a report on 25 July 2023.[50] Ms Sparkes relies on this report.[51]
[50] EB-2, H25, p. 22.
[51] EB-8.
Ms Radford evaluated that Ms Sparkes has physical pain from her left ankle and back and reduced flexibility due to scoliosis... and that Ms Sparkes ‘will greatly benefit form exercise physiology.’[52]
[52] EB-2, H25, pe. 23-27.
Ms Melissa Ford, psychologist, Nurturing Minds
Ms Ford prepared a ‘NDIS review report’ for Ms Sparkes on 27 September 2023.[53] Ms Sparkes has attended four sessions with Ms Ford from 25 January 2023 until September 2023.
[53] EB-2, H39, pp 59 – 66. EB-8.
Ms Ford recommended the following supports for Ms Sparkes:[54]
·weekly psychological support sessions;
·regular OT supports; and
·8 hours daily of support worker funding.
[54] EB-2, H39, p. 65.
Mr Jacques-Yves Chollet, Manager ‘Chollet & Co’, cleaner and support worker
Mr Chollet provided an undated written statement[55] and oral evidence in support of Ms Sparkes’ application.[56]
[55] EB-2, H42.
[56] EB-2, H42, p 70. EB-8.
Mr Chollet’s oral evidence was that he cleans once per week for Ms Sparkes for a two hour period. He stated he spends most of time clearing out the shipping container and organising Ms Sparkes’ belongings.[57]
[57] Oral evidence of Mr Chollet.
Mr Chollet explained his tasks include:
·Sweeping leaves in the outside area;
·Decluttering; and
·‘Taking no-longer-wanted items to the rubbish tip and removing rubbish from the shipping container.’[58]
[58] Oral evidence of Mr Chollet.
Ms Imke Hansen, support worker
Ms Hansen provided a letter of support for Ms Sparkes on 17 June 2024[59] and wrote that ‘increasing [her] support work hours is essential for her’.
[59] EB-2, H32, p. 39.
Ms Hansen’s oral evidence aligned with her written statement.
Ms Mathilde Sormani, ‘Equine Specialist’, Horses and Humans
Ms Sparkes relies on a letter from ‘Horses and Humans,’ signed by Ms Sormani, on 13 September 2024. Ms Sormani wrote that Ms Sparkes ‘…through working with the horses [she] has been learning about personal space and safety.’[60]
[60] EB-2, H37, pp. 55-56.
CONSIDERATION
I consider that Ms Sparkes gave an honest account regarding her submissions, circumstances, impairments, and needs. I accept Ms Sparkes’ evidence that she experiences ‘physical conditions’ and ‘other mental health conditions’ and give weight to Ms Sparkes’ lived experience of her impairments and her report that the requested supports are beneficial for her.
The evidence indicates and I find that on 23 July 2019 Ms Sparkes was granted access to the scheme on the basis of psychosocial impairments arising from her diagnosis of Aspergers syndrome or ASD; these impairments were reported as permanent by Dr Thies Weening, psychiatrist, on 10 June 2019.[61] I accept that Ms Sparkes’ other diagnoses of panic disorder and accentuation of personality traits were not described as ‘permanent’ nor were they accepted by the Agency as meeting the section 24 NDIS Act ‘disability requirements’ or the section 25 NDIS Act ‘early intervention requirements’.’[62]
[61] EB-7, Annexure A, B and C.
[62] EB-7, Annexure C.
Ms Sparkes relies on the reports by Ms Ford, Ms Maller, Ms Davis, Ms Hooper, Mr Wallace, and Ms Radford. Ms Sparkes contends that she meets the section 24 NDIS Act ‘disability requirements’ on the basis of these reports stating that she has:
·physical conditions of incontinence, and scoliosis (‘physical conditions’); and
·psychosocial conditions listed as ‘bipolar disorder, depression, anxiety, panic disorder, severe sensory issues and nil executive function.’[63] (‘other mental health conditions’).
[63] Oral evidence of Ms Sparkes and EB-8, p. 18.
Ms Sparkes did not contend that she met the early intervention requirements under section 25 of the NDIS Act with respect to the ‘physical conditions’ or ‘other mental health conditions’ noted above.
On balance I accept the medical evidence before me that Ms Sparkes has been diagnosed with the ‘physical conditions’ and the ‘other mental health conditions.’ However, there is insufficient evidence to allow me to make a decision about whether Ms Sparkes has for the purpose of section 24 or section 25 of the NDIS Act a disability due to impairments attributable to the ‘physical conditions’ or the ‘other mental health conditions’.
I accept the Agency contentions that:[64]
·without sufficient evidence to satisfy section 24 or section 25 of the NDIS Act regarding the ‘physical conditions’ or the ‘other mental health conditions’ they cannot be recognised as secondary disabilities; and
·Ms Sparkes cannot access ‘reasonable and necessary supports’ for the impairments attributable to the ‘physical conditions’ and the ‘other mental health conditions’ in accordance with section 34(1)(aa) of the NDIS Act.
[64] EB-1, H2. EB-2, EB-7.
I acknowledge that Ms Sparkes elected not to participate in a recent at home functional capacity assessment as Ms Sparkes objected to the occupational therapist offered by the Agency.[65]
[65] EB-7 at [12]. EB-8, p. 3.
In Mulligan v National Disability Insurance Agency (‘Mulligan’),[66] Justice Mortimer (as Her Honour then was) observed the importance of detailed functional assessments.[67] I accept the Agency contentions that this may be equally applied when considering reasonable and necessary supports for a participant. This is because these assessments are ‘not to be understated,’[68] they are ‘avowedly functional, and multi-faceted’ which is ‘why a detailed functional assessment is so important’.[69] I must turn my mind to what Ms Sparkes can and cannot do, not just what she is doing at the moment. I concur that a detailed functional capacity assessment considers ‘not only what a participant’s needs are, but whether those needs are based on what the participant cannot do because of the impairments.’[70]
[66] Mulligan and National Disability Insurance Agency [2015] FCA 544.
[67] The Mulligan decision was with respect to an access application.
[68] EB-7 [7].
[69] Mulligan [55] – [56].
[70] EB-7 at [8].
Section 34(1)(aa) of the NDIS Act requires an assessment of whether a support is necessary to address Ms Sparkes’ needs that arise from those impairments for which she met the disability requirements. I find that a functional capacity assessment was required to address whether the supports requested by Ms Sparkes arise from her accepted impairments and that the assessment could have ‘disentangled’[71] supports arising from scheme accepted disabilities from non-scheme accepted disabilities.
[71] EB-7 [10].
I accept the Agency contentions that:
·the word ‘necessary’ outlined in s34(1)(aa) of the NDIS Act carries a higher threshold than other factors in section 34 of the NDIS Act such as whether the support would ‘assist’ or be ‘beneficial’ to the participant;
·‘necessary’ on its plain meaning means essential, or something that a person could not do without;
·a ‘functional capacity assessment would need to address whether the support is not just of assistance or would be beneficial but whether a support is ‘essential’ or ‘necessary.’
It follows that an updated functional capacity assessment was ‘necessary’ in Ms Sparkes’ application. I cannot be satisfied on Ms Davis’ report from 2020, nor on Ms Hooper’s report from 2021, nor on Ms Maller’s report from 2023 that the supports they recommend for Ms Sparkes satisfy the section 34(1)(aa) requirement.
I cannot be satisfied on the evidence available to approve Ms Sparkes’ requested supports. I note the decision of the Tribunal in MDCT and National Disability Insurance Agency [2020] AATA 6036 (‘MDCT’)
A request under section 36 of the NDIS Act is made for the purpose of gathering information about matters to be included in the participant’s plan. An unsurprising natural consequence of refusing a request to gather further such information may be that, in some cases, the decision-maker will conclude that it does not have sufficient information to approve particular supports sought by the participant be included in the plan. On review, the consequence of an applicant continuing to refuse to consent to the gathering of certain evidence may lead the Tribunal to conclude that it does not have sufficient information to determine that particular supports sought to be included in the plan are reasonable and necessary and should be funded by the NDIS. It may therefore be in the interests of an applicant for review to participate in the gathering of any relevant evidence.[72]
[72] MDCT and National Disability Insurance Agency [2020] AATA 6036 [25]. See also NJSC and NDIA [2022] AATA 4449 [100], [105]. TMJV and National Disability Insurance Agency [2022] AATA 2053 [42].
I turn now to consider Ms Sparkes’ requested supports under headings.
Ms Sparkes’ requested supports
Support 1 - Consumables
Ms Sparkes is currently funded $250.02 to buy low-cost assistive technology and for minor repairs to assistive technology.
Ms Sparkes seeks funding of $1,000.00 ($2,000.00 per year) to provide incontinence products, mobility aids and adaptive tools.
Ms Sparkes’s evidence regarding incontinence is that she:
·Had surgery for endometriosis which included a hysterectomy, and this resulted in incontinence;[73] and
·Relies on Ms Hooper’s 1 April 2021 report.
[73] EB-1, H7, p 63.
Ms Sparkes evidence regarding mobility aids and adaptive tools is that it is for her ‘back issues as it is sometimes hard to move’ and that she seeks ‘a wheelchair and shower seats, and that no practitioner had specifically recommended these aids for her.’[74]
[74] Oral evidence of Ms Sparkes.
Ms Hooper’s report is four years old and was not able to be tested at the hearing. Ms Maller’s functional capacity assessment is two years old, was not able to be tested at the hearing, and did not suggest a need for mobility aids.
I accept the Agency’s contentions that the requested consumable supports are only for Ms Sparkes’ gynaecological and physical disabilities and there is no evidence to confirm Ms Sparkes’ impairments arising from these disabilities or that they meet either the section 24 or section 25 requirements of the NDIS Act.
Section 34(1)(aa) of the NDIS Act is not satisfied on the basis that the requested consumable supports are not necessary to address Ms Sparkes’ needs arising from an impairment in relation to which she met access to the scheme. The requested consumable supports, therefore cannot be included in Ms Sparkes’s SOPS as a ‘reasonable and necessary’ support.
Support 2 - Domestic cleaning
Ms Sparkes is currently funded for 1 hour per week of domestic cleaning and she seeks two hours per week.
Ms Sparkes lives in a ‘16-foot caravan’ located on her friend’s property. Ms Sparkes moved to a tiny home on the same property in September 2024 and then moved back into the caravan in December 2024 as the tiny home required repairs. Ms Sparkes stated that in the caravan there are:
·no toilet or shower amenities and that she uses an outside shower or uses her friend’s bathroom; and
·cooking items such as a microwave and stovetop in the caravan.
I accept Mr Chollet’s evidence regarding the cleaning work he is actually performing for Ms Sparkes. As there was no functional capacity assessment for Ms Sparkes’ living arrangements it is not possible to know how much cleaning is in fact required and whether the cleaning is necessary to address Ms Sparkes’ impairment for which she met the disability requirements.
I accept the Agency contentions that 1 hour per week for cleaning is reasonable and necessary to address Ms Sparkes’ scheme accepted disabilities. Section 34(1)(aa) of the NDIS Act is not satisfied on the basis that the requested domestic cleaning supports are not necessary to address Ms Sparkes’ needs arising from an impairment in relation to which she met access to the scheme. The additional ongoing requested cleaning supports, therefore, cannot be included in Ms Sparkes’s SOPS as a ‘reasonable and necessary’ support.
I accept that in light of Mr Chollet’s evidence that the Agency then submitted that it is reasonable to include an additional 16 hours of domestic cleaning at the weekday rate for a ‘once-off decluttering’[75] of Ms Sparkes’ living environment as a reasonable and necessary support for Ms Sparkes.
[75] Oral evidence of Mr Chollet.
I am satisfied, after considering the evidence and with regard to section 34 of the NDIS Act that this was an appropriate concession for the Agency to make.
Support 3 - Gardening
Ms Sparkes seeks 2 hours of funding each fortnight for gardening support and she is not currently funded for this support.
Section 34(1)(aa) of the NDIS Act is not satisfied on the basis that the requested gardening supports are not necessary to address Ms Sparkes’ needs arising from an impairment in relation to which she met access to the scheme. The requested gardening supports, therefore cannot be included in Ms Sparkes’s SOPS as a ‘reasonable and necessary’ support.
In addition, I accept the Agency’s contentions that Ms Sparkes’ current living situation renders it difficult to be satisfied as to whether ‘gardening’ assistance is to address Ms Sparkes’ specific caravan property or her friend’s property.
The requested gardening support, therefore, cannot be included in Ms Sparkes’s SOPS as a ‘reasonable and necessary’ support.
Support 4 - Support worker assistance
Ms Sparkes is currently funded 22.5 hours per week of support worker assistance that is comprised of:
·10 hours per week for assistance with self-care activities;
·10 hours per week for assistance with access to community, social and recreational activities;
·2 hours per week for community access on Saturdays; and
·2 hours per month for community access on Sundays.
Ms Sparkes has an additional 1 hour per week of support worker assistance with decision making and planning (this is 26 hours over a six-month plan duration).
Ms Sparkes seeks 10 hours per day for 7 days per week in support worker assistance including for weekends and public holidays.
I am satisfied when considering the NDIS Supports Transitional Rules that funding for support worker assistance is a support contemplated by item 14 in Schedule 1 as being a NDIS Support for section 10 of the NDIS Act.
As previously noted, for the purposes of section34(1)(aa) of the NDIS Act, the Agency does not accept Ms Sparkes has impairments from the ‘physical conditions’ and ‘the other mental health conditions’ that Ms Maller’s assessment[76] took into account. The Agency contends there is no recent evidence from a suitably qualified expert before the Tribunal which recommends 10 hours a day of support worker assistance. Furthermore, there is no evidence which addresses Ms Sparkes’ needs that arise as a consequence of her accepted impairments.
[76] Also considered by Ms Davis’ report, Ms Hooper’s report, and Ms Ford’s report.
I accept the Agency’s contentions that a functional capacity assessment was necessary to understand how support worker assistance is required for Ms Sparkes’ circumstances and whether it is necessary to address the impairment for which Ms Sparkes meets the disability requirements. I note that Ms Maller’s report is over two years old, and that Ms Sparkes gave evidence that ‘nothing has changed’ for her during this time. However, the evidence demonstrated there have been changes. Ms Sparkes has attended some psychological treatment in 2023[77], she has moved in and out of from her caravan into a ‘tiny home,’ and she has recently commenced an online TAFE course.
[77] Oral evidence of Ms Sparkes.
I give little weight to Ms Imke Hansen’s evidence around Ms Sparkes’ support worker needs because it does not assist me to determine whether the requested supports are reasonable and necessary according to the statutory criteria.
I accept Ms Sparkes’ practitioners’ evidence regarding Ms Sparkes’ support needs. However, I give greater weight to the Agency submissions that there is insufficient evidence to demonstrate that Ms Sparkes has impairments attributable to other diagnoses which would satisfy either section 24 or section 25 of the NDIS Act. I cannot be satisfied on the evidence before me of the extent that Ms Sparkes has impairments from ‘the physical conditions’ or the ‘other mental health conditions’ nor that these conditions have caused the loss of, or damage to Ms Sparkes’s physical, sensory or mental function.[78] For this reason, the impairments attributed to the ‘physical conditions’ and the ‘other mental health conditions’ will not be taken into account when assessing Ms Sparkes’s disability-related support needs for the purpose of deciding what supports are “reasonable and necessary supports” under s 34(1) of the NDIS Act.
[78] EB-7.
I conclude that Ms Sparkes has impairments attributable to a psychosocial disability in respect of her diagnosis of Aspergers syndrome or ASD when she met the ‘disability requirements’ under section 24 of the NDIS Act. It is these impairments only which will be taken into account when assessing Ms Sparkes’s disability-related support needs and when deciding whether the requested supports are “reasonable and necessary supports” under s 34(1) of the NDIS Act.
I accept the Agency’s contentions that I cannot be positively satisfied on the material that the claimed support is necessary to address Ms Sparkes’ needs which arise from the impairment in relation to which she met access to the scheme pursuant to section 34(1)(aa) of the NDIS Act. Furthermore, I cannot be satisfied the requested support represents value for money in that the costs are reasonable, relative to the benefits achieved.[79]
[79] Section 34(1)(c) of the NDIS Act.
There is limited probative evidence to support Ms Sparkes’ requested supports that also demonstrates the requested supports satisfy the section 34(1)(c) value for money criteria.
The requested additional support worker hour supports, therefore cannot be included in Ms Sparkes’s SOPS as a ‘reasonable and necessary’ support.
I note that it is open to Ms Sparkes to request the Agency conduct a reassessment of her plan at any future time, if required.
Support 5 - Transport
Currently Ms Sparkes receives level 1 transport funding of $1784 per year which is self-managed and is a stated support.[80] This means that Ms Sparkes can use this transport funding however she chooses.
[80] EB-2, p 430.
Ms Sparkes requests level 3 transport funding and states there are ’adverse consequences that would arise if appropriate transport funding is not provided.’[81] I note that Ms Sparkes receives the DSP, she undertakes volunteer work for an animal rescue service, and she has recently enrolled in an online TAFE course.[82]
[81] EB-8, p. 8.
[82] Oral evidence of Ms Sparkes.
The Agency provides Operational guidelines regarding transport funding.[83] These levels are:
·Level 1 funding provides $1,784 per year for participants who are not working, studying or attending day programs but are seeking to enhance their community access;
·Level 2 funding provides $2,676 per year for participants who are currently working or studying part-time (up to 15 hours a week), participating in day programs and for other social, recreational or leisure activities.
·Level 3 funding provides $3,456 per year for participants who are currently working, looking for work, or studying, at least 15 hours a week, and are unable to use public transport because of their disability.
·In exceptional circumstances, participants may receive higher funding if the participant has either general or funded supports in their plan to enable their participation in employment.
[83] Operational guidelines Transport funding.
I accept the Agency contentions that generally the costs of transport to attend to life activities is a day-to-day living cost that is incurred by all Australians and is not attributable to a participant’s disability support needs.[84] Rule 5.2(a) of the Supports Rules outlines that travel support is only funded under the scheme if it is an additional living cost ‘incurred by a participant solely and directly as a result of their disability support needs.’
[84] EB-7 [37]. See Rule 5.1(d). See JQJT and National Disability Insurance Agency [2016] AATA 478 [35].
I find that Ms Sparkes’s current transport budget appears sufficient to meet any reasonable and necessary transport costs. I accept the Agency contentions that Ms Sparkes has not produced evidence to suggest that she meets the criteria for level 3 transport support. In these circumstances I am not satisfied that Ms Sparkes’s transport costs should be increased as it is inconsistent with the Agency’s Operational guidelines.[85] I am not satisfied that funding of this support satisfies the reasonable and necessary criteria pursuant to section 34 of the NDIS Act.
[85] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1970 46 FLR 409 [420]-[421].
The requested transport funding support does not address Ms Sparkes’ needs arising from an impairment in relation to which she met the access criteria pursuant to section 34(1)(aa) of the NDIS Act. Therefore, the additional transport funding cannot be included in Ms Sparkes’s SOPS as a ‘reasonable and necessary’ support.
Support 6 - Short-Term Accommodation (STA)
Ms Sparkes is not currently funded for STA, and she seeks funding for 28 days per year for respite and support.
Ms Sparkes relies on Ms Davis’ 2020 report in her request for STA. I note that Ms Davis’ report does not explain how Ms Sparkes’ current level of allied health and support worker support hours is unable to achieve an increase in her functional capacity.
I refer to the NDIS Pricing Arrangements which[86]
…provide integrated support for self-care, accommodation, food and activities in a centre or group residence for short periods…[for] participants [who] may require temporary comprehensive supports that are different from their usual arrangements…and may include a period of respite, which aims to support ongoing caring arrangements between participants and their carers. STA/respite allows the opportunity for the participant to be supported by someone else whilst providing their carer with short term breaks from their usual caring responsibilities.
[86] NDIS Pricing Arrangements page 47.
The Operational guideline ‘Short-Term Accommodation or Respite’ outlines that STA, including respite, is a funded support for a time when a participant needs to live out of home for a short period and may be used for respite to support the participant and the participant’s carers. The purpose is to give carers a break from their caring role and to allow the participant an opportunity to try new things or develop skills or make new friends.
I accept the Agency contentions that the primary purpose of STA is for situations where the participant or informal carer need to be away from the usual living arrangements for a ‘transient period of time’ for reasons such as respite or giving informal carers a break. I find that developing skills and making new friends are of an ancillary benefit because there are other supports available to Ms Sparkes to develop social relationships through assistance in accessing social and recreational activities and through occupational therapy and psychological supports.
I note that one of Ms Sparkes’ goals is ‘build on skills to manage her medications, anxiety and mental health’ in STA. It is unclear what skills will be worked on and it also unclear how STA may assist in the management of Ms Sparkes’ identified goals. In addition, Ms Sparkes outlined[87] that the purpose of STA was to provide her with a ‘break to manage her care needs efficiently.’ It is unclear what care needs are unable to be managed for Ms Sparkes without access to STA.
[87] EB-2, H76.
I cannot be satisfied that Ms Sparkes requested support for STA is necessary to address her needs from the impairments for which she met the disability requirements pursuant to section 34(1)(aa) of the NDIS Act. It is not necessary for me to proceed to consideration of the remaining mandatory criteria under section 34(1) of the NDIS Act.
The requested STA support, therefore, cannot be included in Ms Sparkes’s SOPS as a ‘reasonable and necessary’ support.
Support 7 - Psychology
Ms Sparkes is currently funded for 7 hours of psychology support, and she seeks weekly sessions based on Ms Ford’s September 2023 recommendation. I note Ms Sparkes’ evidence that she last attended psychological support in September 2023.[88]
[88] Oral evidence of Ms Sparkes.
I cannot be satisfied on the evidence that weekly sessions are still required for Ms Sparkes or that they represent value for money in that the costs of the support are reasonable relative to both the benefits achieved and the cost of alternative support pursuant to section 34(1)(c) of the NDIS Act.
It is open to Ms Sparkes to use the current funding of 7 hours of psychology to obtain a psychological report in order to determine her current requirements and request a re-assessment of her plan.
Support 8 - Occupational Therapy
Ms Sparkes is currently funded for 13 hours of occupational therapy support, and she seeks weekly sessions.
The evidence indicates that Ms Sparkes last attended Ms Maller on 7 February 2023 for the purpose of her functional capacity assessment. Ms Maller recommended further occupational therapy sessions and ‘engagement from an OT to assist with the recommendation of assistive technology to increase [her] safety and independence’.[89]
[89] EB-2, H23, p12.
I cannot be satisfied on the evidence that weekly occupational therapy sessions represent value for money pursuant to section 34(1)(c) of the NDIS Act.
It is open to Ms Sparkes to request a reassessment of her plan if she elects to use the current 13 hours of occupational therapy funding to determine what her occupational therapy needs may be.
Support 9 Physiotherapy and Support 10 - Exercise Physiology
Ms Sparkes is not currently funded for physiotherapy nor exercise physiology support. Ms Sparkes requests weekly one-hour sessions plus an unspecified amount for report writing.
I accept the Agency’s contentions that these supports are for physical impairments. There is insufficient evidence to support a finding that Ms Sparkes has impairments attributable to a physical disability pursuant to section 24(1)(a) of the NDIS Act or that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the physical impairment pursuant to Rule 5.4 of the Access Rules.
Therefore these two requested supports are not necessary to address Ms Sparkes’ needs arising from an impairment in relation to that which she met the disability requirements pursuant to section 34(1)(aa) of the NDIS Act.
The requested physiotherapy and exercise physiology supports, therefore, cannot be included in Ms Sparkes’s SOPS as a ‘reasonable and necessary’ support.
Support 11 - Training and skills development
Ms Sparkes currently has funding for:
·1 hour per week of funding for training and skills development;
·1 hour per week of support worker assistance for assistance with decision making and planning.
Ms Sparkes requests 2 hours per week for ‘training and skills development’. Ms Sparkes stated that she wants to use this funding for assistance with an online TAFE course as she requires assistance with comprehension to understand the course materials. Ms Sparkes also stated she wants assistance with her daily life and animal care.[90]
[90] Oral evidence of Ms Sparkes.
I refer to the NDIS Price Guide and note that this particular support item provides individual life skills development and training which includes public transport training and support, developing skills for community, social and recreational participation. It also provides training for participants in groups to increase their independence in daily personal activities.[91]
[91] EB-7 at [59]. NDIS Pricing Arrangements and Price Limits, 2024/25, p. 73.
It is unclear what evidence Ms Sparkes relies on to support this request. I accept the Agency’s contentions that Ms Sparkes’ claimed support is not necessary to address her needs from the impairment in relation to which she met access to the scheme pursuant to section 34(1)(aa) of the NDIS Act.
Furthermore, I cannot be satisfied on the evidence that the claimed support represents value for money in that the costs are reasonable, relative to the benefits achieved pursuant to section 34(1)(c) of the NDIS Act.
This means that section 34 of the NDIS Act is not satisfied. This support therefore cannot be included in Ms Sparkes’ SOPS as a reasonable and necessary support.
Support 12 - Equestrian support
Ms Sparkes is not currently funded for equestrian support. Ms Sparkes contends she requires 2 hours per week of physical assistance and prompting for the following tasks from a support worker who understands these tasks to direct her with:[92]
·Training her horse;
·Grooming her horse;
·Working with her horse;
·Preparing her horse for competitions;
·Planning and organising horse competitions; and
·Transporting her horse for competitions.
[92] Oral evidence of Ms Sparkes.
Ms Sparkes contends that participation in an equestrian sport:
·‘Involves the handling and preparation of the horse as part of the activity not as a separate or incidental task;
·Has a twofold purpose, to assist in physically undertaking the task and developing skills necessary for meaningful and independent participation in the sport over time.[93]
[93] EB-8, p. 13. See Schedule 2, item 27.
I accept the Agency contentions that Ms Sparkes seeks assistance with the physical tasks to prepare her horse for equestrian competitions. It was unclear what evidence Ms Sparkes relies on to demonstrate how this support would address her disability related needs.
I refer to schedule 2, item 4(h) of the Transitional Support Rules which lists day-today living costs – lifestyle
(h) costs associated with recreational sports and activities, including membership costs, venue hire fees, uniforms and footwear.
I accept that ‘equestrian support’ may be categorised and excluded under schedule 2, item 4(h) of the Transitional Support Rules which excludes costs associated with recreational sports and activities.
I find that Ms Sparkes is seeking support for the assistance with the tasks required to participate in the recreational activity itself rather than assistance to give Ms Sparkes the skills or means to participate in the activity itself. I find that this support is excluded as a scheme support pursuant to section 34(1)(f) of the NDIS Act.[94]
[94] Section 10 of the NDIS Act and the Transitional Rules. See WVGM v Chief Executive Office of the National Disability Insurance Agency [2025] ARTA 47 at [208].
There was insufficient evidence to positively satisfy me that Ms Sparkes’s request for this support is addressing Ms Sparkes’ disability related needs. I also cannot be satisfied that this support addresses the needs of Ms Sparkes arising from the impairments in relation to which she met the access criteria pursuant to section 34(1)(aa) of the NDIS Act.
This means that section 34 of the NDIS Act is not satisfied. Funding for equestrian support therefore cannot be included in Ms Sparkes’s SOPS as a reasonable and necessary support.
Support 13 Equine Assisted Learning (EAL)
Ms Sparkes requests 1 hour per week of Equine Assisted Learning (EAL) with ‘Horses and Humans’ to ‘support her in developing skills and enhancing learning through interaction with horses’ and she relies on Ms Sormani’s letter.[95] Ms Sparkes does not currently receive funding for EAL as a support.
[95] Oral evidence of Ms Sparkes. EB-8, p. 14. EB-2, H37.
Ms Sparkes contends this support is a ‘structured, goal-directed, evidence-based therapeutic support’.[96] Ms Sparkes seeks ‘equine assisted personal development sessions focussing on personal and skill development, connecting with horses, humans and community.’[97]
[96] EB-8, p. 14.
[97] EB-2, H37, pp. 55-56
Ms Sparkes has attended ‘Horses and Humans’ since May 2024. Ms Sparkes’ evidence was that ‘working with horses helps her feel accepted and comfortable and she is able to talk openly about past and current challenges and goals due to working with a variety of horses. Ms Sparkes stated she could improve her concentration, focus and have opportunities to practise and improve awareness of others and her own responses by working with horses.[98]
[98] Oral evidence of Ms Sparkes.
I am not satisfied on the evidence that the ‘Horses and Human’ support is addressing Ms Sparke’s disability related needs. I am not satisfied that Ms Sormani is qualified to comment on the therapeutic value of a support for Ms Sparkes. I am not satisfied this is a support necessary to address Ms Sparkes needs arising from the impairment for which she met the disability requirements pursuant to section 34(1)(aa) of the NDIS Act.
I accept the Agency’s submissions that:
·This support is not related to Ms Sparke’s disability under Rule 5.1(b) of the Supports Rules.
·There is no evidence from a suitably qualified expert that recommends EAL as a support to address Ms Sparkes’s needs that arise as a consequence of her accepted impairments.
·Funding for EAL (or animal therapy) as a NDIS support is excluded pursuant to Schedule 2 of the NDIS Supports Transitional Rules under item 9(i).
I note that item 9(i) of Schedule 2 of the NDIS Supports Transitional Rules states:
Supports that generally are not NDIS supports
9 Not evidence based – alternative and complementary therapies (i) animal therapy, including puppy therapy and goat therapy;
I accept that EAL may be categorised as animal therapy. Therefore, the funding of EAL for Ms Sparkes is specifically excluded under Schedule 2 of the NDIS Supports Transitional Rules.
This means that section 34(1)(f) of the NDIS Act is not satisfied on the basis that EAL is not a NDIS support for the purposes of section 10 of the NDIS Act and the Transitional Rules so it cannot be included in Ms Sparkes’s SOPS as a reasonable and necessary support.
Plan management
Ms Sparkes requested that her ‘supports be changed back to plan-managed…due to her ongoing fear of having to adjust to new supports.’[99] No other materials were provided with regard to Ms Sparke’s request.
[99] EB-8, p. 17.
Under section 33(2)(d) of the NDIS Act a participant’s SOPS is to specify the management of the funding for the support under the plan, that is whether such funding is to be ‘self-managed’, ‘plan managed or ‘Agency managed’.
The Agency raised concerns that previous expenditure from Ms Sparkes’ plan was not aligned with Ms Sparkes’ plan. I refer to section 46 of the NDIS Act.
46 Acquittal of NDIS amounts
Requirement to spend money only on NDIS supports and in accordance with plan
(1) A participant who receives an NDIS amount, or a person who receives an NDIS amount on behalf of a participant:
(a)may spend the money only on NDIS supports for the participant; and
(b)must spend the money in accordance with the participant’s plan (subject to paragraph (a)).
I accept the Agency’s contentions that the current plan management is appropriate because Ms Sparkes has submitted invoices from ‘Horses and Humans’ for attendances on 29 August 2024, 5 September 2024, 12 September 2024, 26 September 2024, 3 October 2024, 21 November 2024, 5 December 2025, 12 December 2024, and 28 December 2024 totalling $1485.00.[100]
[100] EB-7 [74].
I accept the Agency contentions that the invoices from Horses and Humans cannot be funded by the scheme for the reasons already stated at [159] – [160] as it is not a NDIS support.
I note that it is open to Ms Sparkes to request the Agency undertake a re-assessment of her plan management at any time.
The Tribunal, pursuant to section 105 of the ART Act, sets aside the decision under review and remits this matter for reconsideration by the Respondent with a direction that it facilitates the approval of a new SOPS for the Applicant, which contains the following: Provisions approving NDIS funding for:
·An additional 16 hours of domestic cleaning at the weekday rate for a ‘once- off’ decluttering of the Applicant’s living environment;
·Replication, on a pro rata basis, of all of the other supports in the Applicant’s current SOPS
·A provision specifying that the reassessment date will fall on the 12-month anniversary of the date of approval of the new SOPS for the Applicant in accordance with this direction; and
·Provisions specifying that the plan management specifications in the new SOPS are to remain the same as specified in the current SOPS.
I certify that the preceding 167 (one hundred and sixty-seven) paragraphs are a true copy of the reasons for the decision herein of General Member S Smith.
………[SGD]..........
Associate
14 May 2025
Dates of hearing:
Date final submissions received:
14 April 2025
28 April 2025
Advocate for the Applicant:
Tiffany Sparkes
(Self-represented)Solicitor for the Respondent: Daniel Tkaczuk
(National Disability Insurance Agency)Counsel for the Respondent:
PM Nolan
- AGLC
- Sparkes and The Chief Executive Officer, National Disability Insurance Agency (NDIS) [2025] ARTA 561
- Case
- [2025] ARTA 561
- Decision Date
CaseChat Overview and Summary
The legal issues the court was required to decide involved whether the requested supports were reasonable and necessary under section 34 of the NDIS Act, capable of being funded by the scheme, and in compliance with the relevant scheme criteria and rules. The Tribunal had to consider the statutory criteria for determining what constitutes a reasonable and necessary support, the relevant NDIS rules, and the Agency's operational guidelines. The Tribunal also needed to determine if the requested supports accommodate the participant's particular impairments in order for them to be a participating member of the Australian community, in light of the values that are set out in the guiding principles and objects of the NDIS Act.
The Tribunal found that the requested supports were not reasonable and necessary under section 34 of the NDIS Act. The Tribunal considered the statutory criteria for determining what constitutes a reasonable and necessary support, including whether the support would assist the participant to pursue their goals, objectives and aspirations, represent value for money, be effective and beneficial, take account of what it is reasonable to expect families, carers, informal networks and the community to provide, and be most appropriately funded or provided through the NDIS. The Tribunal found that there was insufficient evidence to demonstrate that the requested supports were necessary to address Ms Sparkes' needs arising from the impairments for which she met the disability requirements. The Tribunal noted that the requested supports were often related to non-scheme accepted disabilities or were excluded under the NDIS rules as not being NDIS supports. The Tribunal also found that the requested supports did not satisfy the value for money criteria under section 34(1)(c) of the NDIS Act.
In summary, the Tribunal set aside the decision under review and remitted the matter for reconsideration by the Agency, with a direction that a new SOPS be approved for Ms Sparkes. The new SOPS must include provisions approving NDIS funding for an additional 16 hours of domestic cleaning at the weekday rate for a 'once-off' decluttering of Ms Sparkes' living environment, replication of all of the other supports in her current SOPS on a pro rata basis, a reassessment date, and the same plan management specifications as her current SOPS.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The Tribunal also needs to consider that the requested supports accommodate the participant’s particular impairments in order for them to be a participating member of the Australian community, in light of the values that are set out in the guiding principles and objects of the NDIS Act.[27][27] WRMF [141]. Cited with approval in NDIA v KKTB, by her litigation representative CVY22 [2022] FCAFC 181 [129].Agency’s Operational guidelines The Agency has issued Operational guidelines in regard to what are considered to be ‘reasonable and necessary supports for participants.’ Unless the Operational guidelines are inconsistent with the provisions or objects of the NDIS legislation, they are to be taken into account[28] in deciding what is a reasonable and necessary support for Ms Sparkes. [28] See SCHW and National Disability Insurance Agency [2021] AATA 591 [13] where DP Constance referred to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634. I have considered the following NDIS Operational guidelines – ‘reasonable and necessary supports,’ ‘principles we follow to create your plan’, ‘creating your plan,’ ‘transport funding,’ Short-Term Accommodation or Respite,’ and NDIA Pricing Arrangements and Price Limits 2024/25.[29] [29]Operational guidelines: ‘Reasonable and necessary supports’ on 22 September 2024; ‘Principles we follow to create your plan’ on 22 September 2024; and ‘Creating your plan’ on 28 February 2025, Transport Funding on 3 October 2024. Short Term Accommodation or Respite on 24 June 2022. NDIS Pricing Arrangements and Price Limits 2024.25 on 1 October 2024.EVIDENCE I have considered the oral evidence, the filed written evidence and the closing submissions. For the reasons that follow, I summarise and refer to the more salient aspects of the evidence in respect of this application for review.Evidence about Ms Sparkes Ms Sparkes contends that she is ‘profoundly impacted by mental health conditions including bipolar disorder, depression, anxiety and panic disorder as well as physical health issues such as scoliosis and incontinence, severe sensory issues and nil executive function.’[30][30] EB-8, p. 16, 18, I refer to Ms Sparkes’ undated statement of lived experience[31] her ‘disability explanation’ and her ‘impact statements’ in full.[32] Ms Sparkes currently lives in her own caravan on her friend’s property, where she has resided for over five years. Ms Sparkes lived in a ‘tiny home’ on this same property from August until December 2024.[33] [31] EB2, H41.[32] EB-2, H75. EB-8 , p 7.[33] Oral evidence of Ms Sparkes. EB-4, p. 1. I note that Ms Sparkes has no informal supports in her residential area[34] and that she has received the Disability Support Pension (DSP) since late 2020.[35][34] Oral evidence of Ms Sparkes.[35] EB-1, H19, p 268. Ms Sparkes’s current SOPS contains four goals:[36]·To be supported in short term accommodation, to build on skills that I am not able to build on in my current home environment and have support to assist with skills to manage my medications, anxiety and mental health.·To continue living in my current home with supports to assist me with tasks that include cleaning, maintaining my home, skill building, managing and monitoring my medications, motivation to participate in community access activities, assist me with caring and training of animals which is a passion of mine;·To participate in community activities and learn to ride a horse, learn and do art, photography, gardening and sewing to increase my interests which will also have a positive effect on my mental health.·To be considered for an assistance dog to help manage my autism and mental health. I would like to have ongoing access to therapies that increase my mental and physical health and wellbeing.[36] EB-2, H84, pages 432-434.