SPLC and CEO, National Disability Insurance Agency (NDIS) - [2025] ARTA 74

SPLC and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 74 (6 February 2025)
Applicant:SPLC
Respondent:  CEO, National Disability Insurance Agency
Tribunal Number:                2023/6659

Tribunal:Deputy President K Dordevic
Place:Perth
Date:6 February 2025
Decision:The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration with directions that the following reasonable and necessary supports are to be funded under the National Disability Insurance Scheme:

1. Core supports:
1.1 Assistance with self-care and daily activities:
(i)6 hours per day of 2:1 assistance with self-care (7 days per week, 48 weeks per year, totalling 2,016 hours per year), with the support workers funded at high intensity rate;
(ii)2 hours per day of 1:1 assistance with self-care (7 days per week, 48 weeks per year, totalling 672 hours per year), with the support worker funded at high intensity rate;
(iii)1:1 inactive overnight support per night (7 days per week, 48 weeks per year);
(iv)the Applicant’s existing funding for assistance with social and community participation be maintained but the care ratio be modified to comprise:
(a)Saturday: 5 hours per week, 40 weeks per annum at 2:1 ratio (totalling 10 hours per week of funding); and
(b)Weekdays during school holiday periods at 6 hours per day at a 1:1 ratio when attending ‘Group Activities in a Centre’.

(v)The existing 28 days of STA and Assistance (including respite) be maintained but the care ratio be modified to comprise:
(a)Weekdays: an additional 4 hours per day of assistance with a 2:1 ratio for activities involving self-care;
(b)Saturdays: an additional 4 hours per day of assistance with a 2:1 ratio for activities involving self-care;

(c)Sundays: an additional 4 hours per day of assistance with a 2:1 ratio for activities involving self-care.

2. Capital supports are to include:
2.1 Provision of a commercial front load washing machine subject to the provision of two valid quotes.
3. Plan management and review
3.1 All other reasonable and necessary supports in the 14 February 2024 statement of participant supports (excluding any one-off assistive technology already funded) shall be replicated; and

3.2 the reassessment date is 12 months after the day on which the above reasonable and necessary supports are included in the Applicant’s statement of participant supports.

........................................................................
Deputy President K Dordevic
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – participant supports – reasonable and necessary supports – whether the requested supports are NDIS supports – whether the supports are most appropriately provided by the NDIS or by other support services – Special Disability Accommodation – 24/7 support at 2:1 ratio – Level 3 nurse – high intensity support worker – reimbursement of modifications to wheelchair accessible vehicle – commercial washing machine – specialised laundry detergent
Legislation
Administrative Appeals Tribunal Act 1975 (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
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth)
Social Security Act 1991 (Cth)
Cases
Beezley v Repatriation Commission [2015] FCAFC 165
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Secondary Materials
National Disability Insurance Agency, Our Guidelines – Reasonable and Necessary Supports
National Disability Insurance Agency, Our Guidelines – Specialist Disability Accommodation
National Disability Insurance Agency, Our Guidelines – Vehicle modifications and driving supports
NDIS Practice Standards: High intensity support skills descriptors – Guidance for NDIS providers and auditors, November 2022
Statement of Reasons
BACKGROUND

This issue requiring determination by this Tribunal is whether SPLC (the Applicant) meets the requirements for Specialist Disability Accommodation (SDA) and whether certain supports are reasonable and necessary and therefore should be provided under the National Disability Insurance Scheme (NDIS or the Scheme).
The Applicant is a 15-year-old male who resides with his mother and two brothers in a Western Australian Department of Communities ‘mobility’ property.
The Applicant is a participant of the Scheme. His diagnoses include spastic diplegic cerebral palsy GMFCS Level III, epilepsy, intellectual impairment, cortical visual impairment,[1] dysphasia[2] and autism spectrum disorder.[3] The Applicant’s mother (the Mother) is his sole carer and represents the Applicant in these proceedings.
[1] R13, folios 874 to 875 and noting the functional vision assessment in evidence at R13, folios 995 to 1000
[2] Dr Simon Williams, paediatric neurologist noted “Vulnerable swallowing (this as only really identified during the recent stay), now back to normal.” (at A9, folio 42) and there is a mealtime management plan in evidence dated 20 June 2023 (at A13, folios 88 to 91). At A41, folio 374 Ms Shearing, occupational therapist, reports that a DOSS Score indicates that the Applicant has moderate to severe dysphagia and requires 1:1 supervision when eating or drinking
[3] A37, folio 305
The Applicant’s plan commencing on 17 May 2023 included a statement of participant supports (SOPS) in the sum of $219,627.47 (the original decision).
On 30 May 2023 the Applicant sought review of the original decision, requesting SDA and an update to the Applicant’s goals. On 14 August 2023 a delegate of the Chief Executive Officer (the CEO or the Respondent) of the National Disability Insurance Agency (the Agency) affirmed the original decision (that is, the plan dated 17 May 2023 was unchanged).
On 5 September 2023 a new plan, including a SOPS, was implemented.
On 11 September 2023 the Applicant lodged an application to the NDIS Division of the Administrative Appeals Tribunal (the AAT) for independent review of the internal review decision made by the Respondent. From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is made by the Tribunal.[4]
[4] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), 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. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
On 31 January 2024, pursuant to section 42D of the Administrative Appeals Tribunal Act (the AAT Act), the parties executed partial terms of agreement relating to supports identified as reasonable and necessary under subsection 34(1) of the National Disability Insurance Scheme Act (the Act).
On 14 February 2024 the CEO implemented a new plan for the Applicant in the sum of $288,753.99 for the provision of core supports, capacity building funding, improved relationships and support co-ordination.
The application before the Tribunal is a review of the Applicant’s SOPS dated 14 February 2024.
The Tribunal held an in-person (on day one) and a Microsoft Teams Video (on day two) hearing on 19 and 20 November 2024 in the Tribunal’s Perth Registry. The Applicant was represented by his Mother, who attended in person. The Respondent was represented by counsel, Ms Jennifer Flynn. The Tribunal had the benefit of being introduced to the Applicant at the commencement of the hearing; he was not present during the substantive hearing.
In evidence were various documents filed with the Tribunal, including relevant documents from the Agency, the parties’ submissions, noting that the late filed document provided by the Mother in respect of the Agency’s spending was not accepted into evidence. The Respondent raised no objection to the late filing of evidence from the Applicant comprising an email dated 18 November 2024 from Ms Laura Khng, advanced clinician occupational therapist, Rocky Bay Health and Community confirming that a report would be finalised that week and a letter from Department of Communities dated 23 October 2024. These were accepted into evidence and marked Exhibits A60 and A61 respectively.[5] It is noted that the Mother provided further documentary evidence to the Tribunal on 27 November 2024. This was not taken into evidence as the proceedings had concluded.
[5] Noting that the Tribunal incorrectly referred to these documents being marked Exhibits A2 and A3 at hearing.
The Tribunal also had the benefit of oral testimony provided under affirmation from the Mother and Mr Gary Stretton, occupational therapist. Dr Simon Williams, paediatric neurologist, was called as a witness by the Applicant. However, he was unavailable to give oral testimony on the scheduled hearing dates.
LEGISLATIVE FRAMEWORK
The Scheme provides, amongst other things, individual plans which fund certain supports (NDIS supports). The people who have access to the NDIS are referred to as participants.[6]
[6] Subsection 8(c) of the Act.
Section 33 of the Act outlines what must be included in a participant’s plan. Subsection 33(2) requires that a plan must include a statement of participant supports prepared with the participant and approved by the CEO. Paragraphs 33(2)(a) to (e) of the Act dictate that it must include general, reasonable and necessary supports as well as the date or circumstances in which the Agency must reassess the plan, in addition to the management of other aspects of the plan.
Subsection 33(5) of the Act directs that when deciding whether to approve a statement of participant supports the CEO (and this Tribunal standing in her shoes) must have regard to the participant’s statement of goals and aspirations, relevant assessments, the principle that a participant should manage their plan to the extent that they wish, the operation and effectiveness of previous plans and compliance with spending in addition to being satisfied the supports are reasonable and necessary and the NDIS rules are applied.[7] NDIS Rules are legislative instruments and so are binding on the Tribunal.[8]
[7] Subsection 33(5) of the Act.
[8] Subsection 209(1) and of the Act.
On 3 October 2024 the National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 came into force. Numerous provisions were amended. Relevant to this application it included significant amendments to section 34 of the Act regarding reasonable and necessary supports. It introduced the concept of a NDIS support[9] and amended paragraph 34(1)(f) requiring the decision-maker to be satisfied that the support is a NDIS support. The amendments to the legislation must be applied when a SOPS is approved or varied on or after 3 October 2024, even if the Applicant’s plan came into effect before commencement.[10]
[9] Section 10 of the Act
[10] Subitem 129(2) of Schedule 1 to National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024.
Subsection 34(1) of the Act now provides that when considering what ‘reasonable and necessary supports’ are to be funded that the decision maker must be satisfied that each limb outlined in paragraphs 34(1)(aa) to (f) is established:
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is an NDIS support for the participant.
Note: For the purposes of paragraph (aa):
(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b) a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).
The term ‘reasonable and necessary support’ is not defined in the Act. In the matter of McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle) Mortimer J (as she then was) relevantly stated:
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.[11]
[11] McGarrigle at [91]
The Full Court in National Disability Insurance Agency v WRMF [2020] FCAFC 79 (WRMF) at considered the meaning of reasonable and necessary supports:
… 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.[12]
[12] WRMF at [151].
Subsection 34(2) of the Act states that the NDIS rules may prescribe methods or criteria to be applied, or matters to which the CEO must have regard, in deciding whether they are satisfied criteria under subsection 34(1) are met in respect of a requested support.
The support rules relevant to NDIS supports sought in this application are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Supports Rules), providing guidance when undertaking an assessment of reasonable and necessary supports to be funded.
Section 7 of the Support Rules state that, when considering the funding of a support, the decision-maker must turn their mind to whether it is most appropriately provided by the NDIS or by other support services.
When determining if reasonable and necessary supports should be funded, the decision-maker is to have regard to Part 4 of the Support Rules which sets out the criteria and considerations. These include value for money, whether the support is effective and beneficial, what is reasonable to expect families, carers, informal networks and the community to provide by way of informal supports and whether the support is appropriately funded under the NDIS.
Subsections 3.1 and 3.4 of the Support Rules relevantly state:
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).
…
Reasonable family, carer and other support
3.4 In deciding whether funding or provision of the support takes account of what it is
reasonable to expect families, carers, informal networks and the community to
provide, the CEO is to consider the following matters:
(a) for a participant who is a child:
(i) that it is normal for parents to provide substantial care and support for
children; and
(ii) whether, because of the child’s disability, the child’s care needs are
substantially greater than those of other children of a similar age; and
(iii) the extent of any risks to the wellbeing of the participant’s family
members or carer or carers; and
(iv) whether the funding or provision of the support for a family would
improve the child’s capacity or future capacity, or would reduce any
risk to the child’s wellbeing;
…
(c) for all participants—the desirability of supporting and developing the
potential contributions of informal supports and networks within their
communities.
Also relevant to this application is paragraph 5.1(d) of the Support Rules which provides:
General criteria for supports
5.1 A support will not be provided or funded under the NDIS if:
…
(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.
When addressing the Support Rules in McGarrigle Mortimer J relevantly stated:
The [Support 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 funding under the NDIS.[13]
[13] McGarrigle at [43]

The National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (the Transitional Rules) modified the operation of section 34 of the Act by excluding certain supports from inclusion in SOPS. Schedule 2 to the Transitional Rules outlines supports that are generally not considered NDIS supports.
The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy. The case law is well established; to the extent that policies are consistent with the legislation, decision-makers should have regard to them unless there are cogent reasons not to.[14] The relevant Operational Guidelines in this application include Reasonable and Necessary Supports, Specialist Disability Accommodation and Vehicle Modifications and Driving Supports.
[14] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
Specialist disability accommodation (SDA) is housing designed for people with extreme functional impairment or very high support needs.[15] The requirements for SDA are set down in the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (the SDA Rules).
[15] https:
Section 11 of the SDA Rules sets down that a participant is eligible to receive support for SDA if the participant has either an extreme functional impairment or very high support needs (as set down in sections 12 and 13 of the SDA Rules) and meet the SDA needs requirement (as set down in section 14 of the SDA Rules).
Section 14 of the SDA Rules states:
(1) A participant meets the SDA needs requirement if, when compared to other
supports alone, combined specialist disability accommodation and other supports
would:
(a) better assist the participant to pursue the goals, objectives and aspirations
set out in the participant’s statement of goals and aspirations; and
(b) be more effective and beneficial, where possible, in:
(i) mitigating or alleviating the impact of the participant’s impairment
upon the participant’s functional capacity; and
(ii) preventing the deterioration of the participant’s functional capacity;
and
(iii) improving the participant’s functional capacity; and
(iv) maintaining or promoting the participant’s ability to build capacity,
including in the medium or long term; and
(v) maintaining or promoting the participant’s opportunities to develop
skills; and
(c) if the participant has very high supports needs—be more effective and
beneficial, where possible, in:
(i) reducing the participant’s future needs for supports which might be
required due to inappropriate accommodation; and
(ii) assisting the participant to pursue goals related to life opportunities
and life transitions; and
(d) if the participant has an extreme functional impairment—be more effective
in providing the participant with stability and continuity of support; and
(e) represent better value for money.
(2) For the purposes of paragraph (1)(e), regard must be had to the following matters
if the participant has very high support needs:
(a) whether combined specialist disability accommodation support and other
supports would be likely to substantially improve the life stage outcomes
for, and be of long-term benefit to, the participant;
(b) the cost of providing the participant with supports needed to live in
accommodation other than specialist disability accommodation, taking into
account:
(i) whether those supports may be shared with other participants; and
(ii)limitations of the participant’s informal support network.
An Applicant must put forward evidence sufficient to satisfy or persuade the Tribunal that the relevant statutory requirements are met.[16] Without sufficient probative evidence the Tribunal cannot be satisfied that subsection 34(1) of the Act in respect of a requested support.
[16] Beezley v Repatriation Commission [2015] FCAFC 165 at [68] per North, Tracey and Mortimer JJ.
ISSUES
The Applicant seeks the following supports which the Agency asserts are either not reasonable or necessary or are not NDIS Supports:
a)    2:1 support including one nurse (level 3), 1 high intensity support worker, 24 hours per day, seven days per week;
b)    reimbursement of modifications to the applicant's wheelchair accessible vehicle as well as associated costs:
(i)Insurance in the amount of $1,916.72;
(ii)Registration in the amount of $1,005.40;
(iii)Petrol in the amount of $100.00 per week; and
(iv)Servicing in the amount of $500.00 per year;
c)    A commercial washing machine and specialised laundry detergent.
The Applicant also seeks the provision of SDA, with the following design features:
(i)SDA Type: New Build
(ii)Building Type: Villa/Duplex/Townhouse, 1 SDA resident.
(iii)Design Category: High physical support
(iv)Onsite overnight assistance; and
(v)Location: WA – Perth, North West.
The Tribunal notes that the Applicant no longer sought self-management of the entirety of his NDIS plan and therefore no evidence was adduced at hearing regarding self-management.
Therefore, the issues before the Tribunal are whether:
(a)the supports sought by the Applicant, set out in paragraph 34, are reasonable and necessary NDIS supports for the Applicant for the purposes of section 33 and subsection 34(1) of the Act, having regard to the Support Rules;
(b)the Applicant is eligible to receive support for SDA pursuant to section 11 of the SDA Rules; and
(c)if the Applicant meets the eligibility criteria for SDA, whether the SDA supports sought by the Applicant, as set out in paragraph 35 above, are reasonable and necessary supports for the purposes of section 33 and subsection 34(1) of the Act, having regard to the Support Rules.
CONSIDERATION
What supports are currently provided?
38.The Applicant’s current plan 12-month, dated 14 February 2024, comprising the following supports: [17]
[17] A44, folios 400 to 414
(a)   Core supports in the sum of $208,089.07:
(i) $1,865.97 for personal continence products including activity related products
and protectors to maintain health, wellbeing and participation in community
activities;
(ii) $4,418.90 to fund assistive technology (AT), to buy low cost AT, rental,
maintenance and minor repairs to the AT;
(iii) $183,380.20 for supports to enable maximum independence in personal
activities of daily living (flexible funding), calculated to include:
(A) assistance with self-care activities - Standard - Weekday Daytime:
4 hours x 246 days;
(B) assistance with self-care activities - Standard – Saturday: 4 hrs per
week x 40 weeks;
(C) assistance with self-care activities - Standard – Sunday: 4 hours per
week x 40 weeks;
(D) assistance with self-care activities - Standard - Public Holiday: 4 hours per day x 11 days;
(E) Short term accommodation (STA) and assistance (including respite) - 1:1 – Weekday: 4 days per year
(F) STA and assistance (including respite) - 1:1 – Saturday: 12 days per year;
(G) STA and assistance (including respite) - 1:1 – Sunday: 12 days per year.
(iv) $18,424[18] for assistance with social and community participation, calculated to include:
[18] A58, folio 443
(A) access community social and recreational activity - Standard – Saturday: 5 hours per week x 40 weeks.
(b)   Capacity building funding in the sum of $55,664.32 comprising:
(i) Improved life choices: $1,485.75 by way of supports to set up, develop and
process monthly statements, purchase a range of funded supports and
strengthen informal supports;
(ii) Improved daily living: $31,059.72 having been calculated to include:
(A) $6,983.64 for occupational therapy, including funding for a
functional capacity assessment;
(B) $11,680.24 for physiotherapy;
(C) $1,939.90 for an orthotist to assess and make recommendations;
(D) $1,939.90 for an orthoptist to complete a functional assessment of vision to support engagement in activities of daily living and social and
community participation;
(E) $1,532.40 for assessment and training by a clinical nurse consultant for
continence and disability health related supports (DHRS) to recommend
continence and DHRS;
(F) $1,136.94 for a podiatrist to assess and make recommendations in
relation to foot, ankle and lower limb health.
(c)   Improved relationships: $14,447.15 comprising:
(i) 45 hours of specialist behaviour intervention support;
(ii) 20 hours of behaviour management plan and training in behaviour management
strategies
(d)   Support coordination: $8,671.70 calculated to comprise:
(i) 35 hours of support coordination (Level 3: Specialist support coordination); and
(ii) 20 hours of support coordination.
What supports does the Respondent propose?
39.The Respondent submits that it is willing to fund a 12-month NDIS plan to provide the following supports on the basis that they meet legislative test set down in subsection 34(1) of the Act:[19]
[19] R5, folios 569 to 570
(a)4 hours per day of 2:1 assistance with self-care (7 days per week, 52 weeks per year, totalling 1,460 hours per year), with the support workers funded at high intensity rate;
(b)2 hours per day of 1:1 assistance with self-care (7 days per week, 52 weeks per year, totalling 730 hours per year), with the support worker funded at high intensity rate;
(c)1:1 inactive overnight support per night (7 days per week, 52 weeks per year);
(d)The existing 28 days of short-term accommodation (STA) be maintained but the care ratio be modified to comprise:
(i)Four weekday per annum of STA and Assistance (including respite) at a ratio of 1:1, with an additional 4 hours per day of self-care assistance at a ratio of 2:1;
(ii)Twelve Saturdays per annum of STA and Assistance (including respite) at a ratio of 1:1, with an additional 4 hours per day of self-care assistance at a ratio of 2:1;
(iii)Twelve Sundays of STA and Assistance (including respite) at a ratio of 1:1, with an additional 4 hours per day of self-care assistance at a ratio of 2:1.
(e)convert the Applicant’s existing funding for 5 hours per week for assistance with social and community participation to a 2:1 ratio calculated as follows:
(i)Access Community Social and Recreational Activity - Standard – Saturday: 5 hours per week x 40 weeks at a 2:1 ratio (10 hours per week); and
(ii)during school holiday weekdays: 6 hours per day at a 1:1 ratio for ‘Group Activities in a Centre’, so that a day program may be accessed on school holidays.
(f)The management of the support budgets in the Applicant’s plan is to remain the same as the management of the support budgets in the Applicant’s plan dated 14 February 2024.
(g)Except for the above specified supports the reasonable and necessary supports in the existing SOPS should be provided, on a pro rata basis, for the period from the review date until the varied review date (excluding any one-off assistive technology supports already used).
The disputed supports
I will address each disputed support in turn.
24/7 support at a 2:1 ratio, including Level 3 nurse and high intensity support worker
The evidence before the Tribunal
In her written submissions and oral evidence the Mother submitted that two paediatric neurologists recommended 2:1 ratio supports to be provided to the Applicant. Further, she submits that a nurse is required to provide 24 hour support to assist in the management of the Applicant’s seizures given their unpredictability, though she acknowledged that this is not necessary when the Applicant attends school as two nurses are employed at the school. She explained that currently when the Applicant has a seizure she must wait 20 minutes. If the seizure continues for more than 20 minutes, she must leave the Applicant alone and go to the kitchen to draw his medication, which she described as “dangerous”. When asked to elaborate on this she stated that the Applicant may have a tonic clonic seizure, choke on his medication or swallow his tongue whilst she is not present. She further explained that the support workers can find witnessing a seizure as confronting and not return, whereas a nurse would not have such an emotional reaction.
The Mother also submits that the Applicant requires active overnight support as he requires repositioning, seizure management and experiences apnoea whilst he sleeps. The Mother explained that Level 3 support workers are prohibited from manual handling, whereas a nurse is not. Therefore, she requires nursing assistance to manage the Applicant if he has a fall at night. It is a “struggle” to lift the Applicant and there is insufficient room to use a hoist in their shared bedroom. She stressed that should she receive constant support she would be able to return to work which would be beneficial for the whole family.
The Mother asserts that inactive overnight support is not appropriate. She currently uses a seizure monitor to alert her in the night if the Applicant has a seizure. The Mother stressed that even though the monitor could be used by an inactive overnight support worker, the monitor does not detect an absent seizure and this is the reason that she sleeps in the same room as the Applicant. In any event, the Mother submits that there is no room within her current accommodation to allow the provision of overnight inactive support by a support worker.[20] In closing submissions the Respondent submitted that there is no requirement for overnight support workers to be provided with a bedroom.
44.The Mother submits that nursing care is also required because there were two incidents whereby the Applicant was provided with the incorrect dose of his medications by Level 3 support workers. The first occasion was when she was not at home and two support workers had responsibility to care for the Applicant. Despite her advising them that the Applicant had been provided with his morning medication, he was given a further dose. It was never explained to her how the error occurred, given two staff were present. The second occasion the support worker had understood that “he just needed one”, even though it resulted in underdosing. The Mother stressed that a Level 3 nurse would understand the implications of under or overdosing; a Level 3 support worker does not. She is concerned that without a nurse administering medication the Applicant is at significant risk of harm.
45.The Mother explained that attempts were made to organise a medication blister pack to reduce the risk of misdosing. However, the Applicant’s medication is prepared by the Children’s Hospital who do not provide blister packs. Even if they did, as his medications include cannabis oil a blister pack could not be used. She has since devised a system to minimise the risk; she has two lists, one on the wall and one on the medication tin which the support workers must tick. In addition to the support workers use a mobile phone application when administering the medication. She described the current arrangements as “a lot better now, but still… I worry”.
[20] A56, folio 438
The Mother provided evidence of two ambulance accounts for emergency transfer dated 27 September 2023[21] and 27 February 2024[22] and an emergency discharge summary dated 27 September 2023 which notes that the Applicant received a double dose of his morning medications.[23] There is also in evidence three ambulance accounts for services provided on 16 and 20 February 2024 whereby the Applicant was transported to the local Children’s Hospital.[24] A letter dated 20 February 2024 authored by Dr Christi Kammann, registered medical officer, states that the Applicant had a cluster seizure that day that lasted 45 minutes. The discharge plan was to increase his seizure medications.[25]
[21] A28, folio 123
[22] A21, folio 113
[23] A27, folio 121
[24] A46, folio 416 and A47, folio 417
[25] A45, folio 415
Ms Elise Johnson, social worker, Senses WA declared in an undated report that the Applicant required 2:1 support for the administration of medications as well as safe transfers, safe swallowing strategies, seizure management and when accessing the community.[26]
[26] A5, folio 15
In an undated letter Ms Lily Mcgregor, care designer, Nurse Next Door Home Care Services[27] opined that the Applicant’s epilepsy was worsening and that he required two staff to attend to him at all times. She went on to state that when the Applicant has a seizure he must be placed onto a soft safe surface by two carers, to ensure no injuries are sustained by the Applicant and his carers.
[27] A6, folio 20
On 15 July 2021 Dr Maina Kava, paediatric neurologist, Perth Children’s Hospital, reviewed the Applicant and noted that he continues to experience about five seizures per day. His medications were changed and he was to be reviewed within three months.[28]
[28] R13, folios 874 to 875
On 18 August 2021 a telephone consultation took place between the Mother and Dr Simon Williams, paediatric neurologist, following a recent hospital admission. Dr Williams noted that changes to the Applicant’s medications were helpful for seizure control. In a follow up appointment dated 10 November 2021 Dr Williams reported that the Applicant had not had any convulsive seizures for some time (though he had brief absences) and so no changes would be made to his care.[29] The Applicant was next reviewed by telephone on 11 May 2022. Concerns with swallowing and stuttering were raised and Dr Williams recommended continued speech pathology.[30] An in-person review was conducted by Dr Williams on 12 October 2022 where it was noted that the Applicant’s seizures were variable and the Applicant was experiencing more difficulty in chewing and swallowing.[31]
[29] R13, folio 960
[30] R13, folios 964 to 965
[31] R13, folios 1002 to 1003
In evidence is a part letter (author unknown) dated 26 April 2023 from the Perth Children’s Hospital which stated that a telephone review took place, whereby the main issue was ongoing seizures which occur several times a week. A review was to take place in a few months’ time.[32] On 25 July 2023 Dr Kava advised that ongoing management would require “an accessible home and carer 24/7”.[33]
[32] R13, folio 1077
[33] A24, folio 177
A comprehensive high intensity support assessment was undertaken on 4 June 2023 by clinical nurse consultant Ms Ressy Mathew, Nested Care Group, where it was concluded that the Applicant required a critical level of 24/7 care.[34]
[34] R13, folios 1139 to 1160
A functional capacity assessment report dated 9 August 2023 was completed by Ms Brittany Shearing, occupational therapist, Senses WA advised that the Applicant requires 2:1 supports for manual handling.[35] It went on to state that respite care is not possible as the unfamiliar environment may induce a seizure and that the Applicant’s complex needs require regular and trained staff, amongst other reasons. An increase to support worker funding to support overnight care and 2:1 ratio for all transfers and activities of daily living was recommended, as was SDA approval, respite care support and increased access to therapy services.
[35] R13, folios 1161 to 1237
A report authored by Ms Shearing dated 3 November 2023[36] noted that the Applicant is fully dependent on his Mother for medication, which is administered at 8am, 1pm and 8pm each day.[37]
[36] A33, folios 145 to 184
[37] A33, folio 174
There is in evidence a seizure management plan authored by a Dr Gowden, fellow, Perth Children’s Hospital dated 28 November 2023 which is consistent with the Mother’s oral evidence, namely that when the Applicant experiences a seizure he is to be protected from injury, his breathing and colour are to be monitored and he is to be moved into the recovery position where possible. If the seizure continues for more than 20 minutes, medication is to be administered and an ambulance called.[38]
[38] A35, folio 228

In a letter dated 15 December 2023 Ms Shearing, occupational therapist, reported that due to incidents of medication dispensing errors by trained and medication certified support workers, it is reasonable that the Mother is concerned about the Applicant’s safety and so seeks administration of all medications by a high intensity, preferably nursing qualified, support worker. Ms Shearing went on to state that whilst the risk of injury to the Applicant was unlikely, depending on the dispensing error the consequences could be major or critical. The risk is exacerbated as the Applicant’s medications are not provided in a Webster pack. Ms Shearer recommended that nursing support be provided whenever medication was administered without the Mother being present or if a webster pack is unable to be provided.[39]
[39] A38, folio 334
In a functional capacity assessment dated 15 December 2023[40] Ms Shearing stated that the Applicant usually has a tonic clonic seizure lasting about one to two minutes at 4am each morning which is managed by checking his breathing. The report also states that for mobility, transfers and to undertake activities of daily living two carers are required.[41] The Applicant’s risk profile highlights that he requires two carers during personal care activities and also when having a seizure due to the risk of the Applicant hitting or pinching his caregivers.[42]
[40] A37, folios 236 to 328
[41] A37, folio 295
[42] A37, folio 300
Ms Shearing attached a letter to this report recommending that two carers be provided each weekday from 2.30 to 5.30 pm, one staff member from 5.30pm to 7.30pm for the Applicant’s before bed routine and one overnight support staff from 9pm to 7.30am. On weekends, two support staff were recommended for three hours to complete self-care, and an additional four hours for community access and again 1:1 overnight support from 9pm to 7.30am. In addition, during school holiday periods Ms Shearing recommended that a support worker attend the Applicant for five hours per day, 3 days per week so the Applicant could attend a school holiday program.[43]
[43] A38, folios 329 to 331
In the appendix attached to the letter of support for home modifications dated 12 January 2024 Ms Shearing reiterated that the Applicant requires 2:1 ratio supports when toileting, dressing and showering in addition to transfers and during transport [44]
[44] A41, folios 364 to 379
On 8 March 2024 a telephone consultation between the Mother and Dr Williams took place following the Applicant being reviewed in the emergency department of the local Children’s Hospital following generalised tonic clonic and cluster seizures.[45] Dr Williams reported that the Applicant continues to have fairly frequent clusters of seizures, polymorphic in nature including hand shaking, myoclonus including drops and falls and unresponsiveness. He noted that the Applicant has not had any generalised convulsive seizures for a few months. Dr Williams went on to note:
…I can confirm that I support the provision of a 24-hour carer for [the Applicant]. [The Applicant]’s care needs are well above other children his age. At this point in time [the Mother] is essentially a full time carer, comprising her participation and engagement across the board, including with her other children. [The Applicant]’s care needs relate to the fact that he is dependent on others for all cares (sic), he has uncontrolled epilepsy (some of his seizures result in failing and injuring himself) and he can move himself around and is at risk of injuring himself. [46]
[45] A48, folios 418 to 419
[46] A48, folio 419
In support of the Mother’s application in respect of the administration of medical by a nurse, on 10 April 2024 Dr Williams stated:[47]
I note that there has been some concern around who is qualified to administer his epilepsy rescue medications (midazolam). Under normal circumstances this is usually administered by parents, trained carers etc. Given [the Applicant’s] complexity my preference would be that if his mother is not available to administer the midazolam then it has to be supervised by a registered nurse.
[The Applicant’s] day to day care needs are significantly greater than other children his age and greater than one person (eg a parent) can provide. His care needs will increase as he gets older. He will need an appropriate ratio of carers and support workers to ensure his safety (eg falls risk, seizures, behavioural disturbance).
[47] A37, folio 305
In a letter to the Applicant’s general practitioner, authored on the same day, Dr Williams stated that the Applicant has a significant tonic seizure on waking each morning and clusters of daytime seizures two to three times per week.[48]
[48] A37, folio 306
On 12 August 2024 the Respondent engaged Mr Gary Stretton, occupational therapist. The Mother did not give permission for a face to face assessment to take place. Therefore, the assessment was undertaken by file review and the report was prepared dated 10 September 2024.[49]
[49] R4, folios 533 to 560
Mr Stretton opined that the 2:1 supports were required for certain activities, including showering[50], dressing[51], toileting[52] and transfers[53], in addition to community access and transport[54]. He confirmed that 1:1 support was required for grooming and hygiene tasks[55], medication management[56], mobility[57] and all eating[58] and that inactive overnight support (which includes two hours of active support) was reasonable.[59] He was of the view that, given the Applicant’s age, that attending to his personal care (including showering, dressing, toileting and meal preparation) fell outside the scope of parental responsibility.[60] Mr Stretton considered that the provision of necessary formal supports did not transfer parental responsibility nor fostered dependence; instead, he was of the view that this would provide the Applicant with better opportunity to achieve some independence.[61]
[50] R4, folio 544
[51] R4, folio 544
[52] R4, folio 544
[53] R4, folio 542
[54] R4, folio 546
[55] R4, folio 544
[56] R4, folio 544
[57] R4, folio 542
[58] R4, folios 544 to 545
[59] R4, folio 549
[60] R4, folio 551
[61] R4, folio 553
In the Statement of Issues, Facts and Contentions dated 26 September 2024[62] the Respondent submitted that it was prepared to provide the core supports, as outlined at paragraph 39 of this decision, consistent with those recommended by Mr Stretton.
[62] R5, folios 565 to 578
In his oral testimony at hearing Mr Stretton confirmed his opinion outlined in his supplementary report dated 15 November 2024[63] and his recommendations outlined in his September 2024 report. As to short term accommodation (STA) Mr Stretton encouraged the Mother to avail herself of this at the maximum permissible level in order to provide her respite and also to increase the Applicant’s independent living skills.
Findings of fact and application to the law
[63] R14, folios 1 to 11
I first considered whether 24/7 2:1 support, including a Level 3 nurse and a high intensity support worker is a reasonable and necessary support.
There is no medical evidence before me that substantiates the need for constant 2:1 care, in addition to the care provided by the Applicant’s Mother. The Mother submits that this was recommended by two paediatric neurologists. I respectfully disagree. Dr Kava’s letter dated 25 July 2023 simply states that the Applicant requires 24/7 support. Dr Williams letter dated 8 March 2024 states the same. This is not in issue given the Applicant’s profound disabilities; there can be no doubt that the Applicant requires constant care. However, neither specialist recommended the provision of 2:1 24/7 support, nor that one provider of this support should be a registered nurse. At its highest, Dr Williams recommended an appropriate ratio of carers and support workers but made no specific recommendation as to the type of support worker or duration of support worker care.
I am not persuaded by the Mother’s argument that a nurse would be able to assist her at all times with manual handling. The provision of a nurse to effectively be on stand-by for much of the day and night to undertake manual handling activities does not, in my opinion, represent value for money where there are comparable supports (such as high intensity support workers) that could achieve the same outcome at a substantially lower cost.
The legislation also requires me to consider whether the provision of a support takes into account what is reasonable for families to provide. Already outlined above are the expectations regarding the care of a child, where it is considered normal for parents to provide substantial care and support.
I am not satisfied that 24/7 2:1 care, whether performed by a nurse or high intensity support worker or two high intensity support workers, is neither a necessary or reasonable support. It is appropriate given the Applicant’s age and needs that the Mother, or other informal supports, have responsibility for the provision of care to the Applicant for most of the day. In reaching my conclusion I have considered the NDIS Practice Standards: High intensity support skills descriptors[64] which states that epilepsy and seizure support is not formally linked to these standards.
[64] A59, folios 456 to 502
I conclude that the provision of 24/7 Level 3 nursing and a high intensity support worker does not meet the statutory test of a reasonable or necessary support as required by subsection 34(1) of the Act.
Having not accepted that there is a need for 24/7 2:1 for support, I accept that the Applicant’s care needs are substantially greater than those of other adolescents. I also accept that by virtue of his physical, cognitive, sensory and intellectual impairments the Applicant requires significant support, in addition to that provided by his Mother as part of her parental duties. As submitted by the Mother, assistance with toileting, showering and grooming is not usually provided by a parent to their 15 year old child. I am satisfied that these tasks should be predominantly provided by support workers, as these activities are beyond those usually expected to be provided to an adolescent by a parent.
Mr Stretton submits that 2:1 high intensity care for two hours per day is sufficient. Ms Shearing suggests that 2:1 care for three hours per day is more appropriate. I prefer Ms Shearing’s evidence, given her long professional association with the family and the medical and caring evidence before me regarding the Applicant’s significant functional impairment and his consequent high support needs.
I am satisfied that the provision of 2:1 care for assistance to complete hygiene tasks, other self-care activities, transfers and transport for three hours per day, seven days per week (that is a total of 42 hours per week) are reasonable and necessary and met the requirements set down in paragraphs 34(1)(aa) to (f) of the Act.
However, I do not accept the Respondent’s position that this should be provided for 52 weeks per annum necessary, given my findings below regarding the provision of respite care. Instead, I consider that the provision of 2:1 support for three hours per day, Monday to Sunday, should be provided for 48 weeks per annum. It is also appropriate that the current provision of STA in the 14 February 2024 SOPS be supplemented with the additional provision of 2:1 high intensity support for four hours per day.
I conclude that the provision of these specific supports meets each discrete criteria set down in subsection 34(1) of the Act. In reaching this conclusion I have taken into account the Mother’s position that the Applicant requires toileting assistance at various times during the day or night and this requires the assistance of two people for transfers as the Applicant relies on a slide board, step-up block and hoist.[65] However, I am satisfied that the suite of supports, balanced with what support is reasonable for the Mother to provide, adequately supports the Applicant. I also acknowledge that the Applicant is an adolescent and his needs exceed those of other young people his age, including his twin. Nevertheless, the Mother is in receipt of carer payment. Qualification for this payment is dependent on providing constant care which severely restricts the carer’s capacity to undertake paid employment.[66] This, in addition to her parental responsibilities, leads me to conclude that it is reasonable to expect that the Mother continue to provide substantial support to the Applicant (and his siblings) including meal preparation, household cleaning, laundry, school transport, facilitating social activities and attending medical and allied health appointments.
[65] R4, folios 542
[66] Section 197B of the Social Security Act 1991
It follows that given the Applicant’s high care needs that the existing funding for support to assist the Applicant to participate in social and community events and when accessing STA must also reflect the needs for 2:1 care. It is both reasonable and necessary that the Applicant be provided with 2:1 support of five hours each Saturday during school terms (being 40 weeks per annum) when accessing community, social and recreational activities. Furthermore, when the Applicant is enrolled to attend ‘Group Activities in a Centre’[67] on school holiday weekdays, he should receive support for six hours per day at a ratio of 1:1 to ensure his needs are adequately catered for. It is not in dispute, and I so find, that the provision of these supports meet are reasonable and necessary and satisfy the requirements of paragraphs 34(1)(aa) to (f) of the Act.
[67] Recognised as a NDIS Support in Clause 1, Item 19 of Schedule 1 to the Transitional Rules.
Again, given the Applicant’s age and support needs, I am satisfied that it is appropriate that he receive 1:1 high intensity support to meet self-care needs including feeding for an additional two hours per day. The provision of such a support meets the requirements set down in subsection 34(1) of the Act.
On the evidence before me I am not persuaded that the Applicant requires nursing support for the administration of his benzodiazepine medication. Dr Williams noted that this medication is usually administered by parents and trained carers but his “preference” was that its administration be supervised by a registered nurse when the Mother was not available given the Applicant’s complex needs. In my view, a mere preference by Dr Williams is not sufficient to satisfy the legislative requirement of necessity.
I accept that there were two occasions where medication dosing errors occurred, noting that there were no adverse outcomes for the Applicant. The Mother’s evidence is that for some period there have been no medication errors, largely because new systems have been put in place to minimise this risk. Replacing the current system with nursing support would not represent value for money, take into account the administration of medication that it is reasonable for the Applicant’s Mother to provide nor recognise the nursing support provided by the Applicant’s school each weekday.
I conclude that the provision of nursing support to supervise the administration of the Applicant’s medications is not a reasonable or necessary support. Furthermore, provision of such a support does not satisfy the requirements of paragraphs 34(1)(c) and (e) of the Act.
I now turn to the issue of overnight support. It is evident that the Applicant requires overnight support, to supplement the Mother’s care, in seizure management, repositioning and toileting. The Applicant is now 15 years of age and it is the Mother alone who has borne the burden of attending to the Applicant overnight since his birth. I accept without hesitation the Mother’s evidence that she is fatigued. I accept the statements from Ms Shearing, corroborated by the Zarit Burden assessment, which indicates that the Mother is at significant risk of carer burnout.[68] Furthermore, should the Applicant require toileting overnight, this is a two-person task, and so the provision of an inactive overnight support worker is appropriate in the circumstances.
[68] R13, folios 872 to 873
I am not persuaded that active overnight support is required as the Mother suggests because of the Applicant’s apnoea. Certainly, there is no medical evidence about the Applicant’s apnoea nor the requirement for constant overnight vigilance as a consequence of these apnoea. The Mother’s evidence is such that she has a seizure monitor, which could be used to alert a support worker to seizure activity.
I do not accept the Mother’s assertion that the practicalities of the current living arrangements prohibit overnight support given that she is sharing a room with the Applicant. The Mother and Applicant share a room because the Mother has determined that her other sons should have separate bedrooms. However logical this choice is for the smooth running of the home, nevertheless the Applicant’s sleeping arrangements could be changed to allow inactive overnight support and minimise disruption to the Mother’s sleep. Given the evidence that the Mother is at high risk of carer burnout such a change to the household’s sleeping arrangements should assist in prolonging the Mother’s capacity to care for the Applicant in the home and is in line with Applicant’s medium/long-term goal to continue to live at home with his family, as outlined in the most recent plan.[69] In any event, even if the Applicant’s sleeping arrangements are not changed, he is still able to receive overnight support albeit that this support may interrupt the Mother’s own sleep.
[69] A44, folio 406
On the basis of the Applicant’s functional impairments, including the frequency and duration of epileptic seizures and his double incontinence, I have determined that the provision of overnight inactive support seven days per week for 48 weeks per annum is a necessary and reasonable support. I find that the provision of inactive overnight support is necessary to meet the needs of the Applicant’s impairments arising from the impairments on which he meets the disability requirements under the Act. This specific support will assist the Applicant to meet his goals included in his most recent plan, will assist the Applicant to undertake activities that will facilitate his social and economic participation, represents value for money and will be effective and beneficial for the Applicant. I am also satisfied that the funding of this support takes account of the support that it is appropriate that the Mother provide and is a NDIS support.
Therefore, paragraphs 34(1)(aa) to (f) of the Act are met in respect to the provision of inactive overnight support.
Commercial Washing machine
The evidence before the Tribunal
In written submissions dated 13 February 2024 the Mother states that her current washing machine is unable to clean the Applicant’s soiled sheets due to his medications being oil based. She must wash the same linen three to four times on a 1.5 hour wash to remove stains. She stated that this is not a day-to-day expense that falls within the provision of parental support.[70] In her written submissions dated 4 July 2024 the Mother also sought specialised washing detergent to disinfect the Applicant’s bedding.[71]
[70] A43, folio 381
[71] A56, folio 439
Ms Shearing’s report dated 3 November 2023 recommends an industrial/commercial washing machine and dryer. It is apparent from this report that the recommendation is at least in part to foster the Applicant’s independent living skills.[72]
[72] A33, folio 183
Attached to Ms Shearing’s 15 December 2024 report is a continence nurse report and recommendations, based on “external reports”.[73] It states that a continence assessment was undertaken on 4 June 2023 and that the Applicant has faecal and urinary incontinence and nocturnal enuresis. It went on to note that the Applicant, on average, required five nappy changes per day and that leakage would occur. He is incontinent of the bladder more than five times a day and of the bowel between one to two times per day.
[73] A37, folio 290

In Ms Shearing’s response to targeted questions put to her by the Agency she states that the Applicant currently does not display signs of toileting readiness. Due to flooding his bed at night, the Applicant’s sheets are changed daily. Waterproof bedding has been considered but is not appropriate due to his frequent nocturnal enuresis. Ms Shearing declared that a typical washer/dryer is unable to withstand the level of usage. She recommends a washer/dryer that is able to withstand multiple wash cycles per day, is able to disinfect the linen, which will in turn decrease likelihood of replacement linen being required as well as fostering the Applicant’s independent living skills. Ms Shearing concluded that a typical household washing machine is unable to meet the wash demand required to provide clean linen to the Applicant. [74]
[74] A38, folios 335 to 337
Mr Stretton’s report dated 10 September 2024 supported the provision of a commercial washer or laundry service given the Applicant is doubly incontinent and requires high volume linen changes, despite using high absorbency incontinence aids and bedding. He went on to state that whilst it is accepted that a standard washing machine is an everyday item, it is not able to withstand the high usage that the Applicant’s needs necessitate. [75]
[75] R4, folio 556
At hearing Mr Stretton stated that the provision of this support was, in his opinion, a reasonable and necessary support, would represent value for money and prevent further expense by way of replacement of the standard washing machine, usually on a biannual basis. Mr Stretton stated that commercial washers usually have a lifespan of five to 10 years.
The Respondent’s initial position was that there is insufficient evidence provided by a continence nurse as to why leakages occur overnight, what other supports have been explored and why a review of the Applicant’s continence plan has not occurred. Further, given the Applicant’s current accommodation, toilet training should take place.[76]
[76] R5, folio 575
In its Statements of Issues, Facts and Contentions the Respondent contended that the commercial washing machine was a standard household cost and so was not a NDIS support. In opening submissions the Respondent amended its position stating that the provision of a commercial washing machine was not excluded from being considered a NDIS support as it was not a standard household item.[77] In closing submissions the Respondent offered to provide funding for a commercial washing machine on the basis that the Mother provide two further quotes for a suitable commercial washer to allow the Agency to be satisfied that the amount of funding requested is reasonable.
[77] R6, folio 580
In evidence is a quotation dated 31 January 2024 for a commercial front load washing machine with 10 kg capacity. The cost is $5,577, including delivery and installation.[78]
Findings of fact and application to the law
[78] A42, folio 380
I am satisfied that the Applicant is incontinent of the bladder and bowel and despite the usage of high absorbency pads there is leakage requiring daily changing of his clothing, bedding and seat covers. I am also persuaded on the basis of the Mother’s evidence and that of the Applicant’s occupational therapist, that a standard washing machine is unable to clean the Applicant’s bedding and seating covers in a single wash or withstand the frequency of washing required to meet the hygiene needs of the Applicant.
As already outlined, Schedule 2 to the Transitional Rules outlines supports that are generally not considered NDIS supports. Relevant to this application it includes, at subsection 1 Item 1(i), standard household appliances. I am satisfied that a commercial washing machine is not a standard household item. Therefore, I conclude that, pursuant to paragraph 34(1)(f) of the Act, a commercial washing machine is a NDIS support.
I am satisfied that the provision of a commercial washing machine is a necessary support to address the Applicant’s needs arising from his impairments in relation to which he met the disability requirements set down in the Act. Further, I am satisfied that the provision of this support will assist the Applicant to pursue his goals as outlined in his SOPS, will facilitate his social and economic participation, is effective and beneficial for the Applicant and takes into account the support that it is reasonable for the Mother to provide. Therefore, paragraphs 34(1)(aa) to (f) of the Act are met.
I find that that the provision of a commercial washing machine is a necessary support. I am persuaded by the Respondent’s submission that the provision of one quote (now invalid) is insufficient for me to be satisfied that the cost is reasonable and that, with a further two quotes being provided, the reasonableness of the cost would be made out. At the conclusion of the hearing the Mother accepted this conditional offer, explaining that Ms Shearing was making enquiries to seek the additional quotes as requested. I shall make orders to give effect to this verbal agreement.
No evidence regarding laundry detergent and indeed, whether commercial washing machines require different and more expensive laundry detergent than standard washing machines, was tendered. Without the benefit of such evidence, I did not proceed to consider whether this was a reasonable and necessary support that should be funded under the Scheme.
Wheelchair accessible vehicle and associated costs
The evidence before the Tribunal
The Mother seeks reimbursement of costs associated with the purchase and running costs of the wheelchair accessible vehicle (WAV) used to transport the Applicant.
There is in evidence a letter dated 20 January 2022, purporting to be a quote, for modifications to a Kia KA4 Carnival for wheelchair access completed by Ms Sherri Simmonds, mobility consultant, Automobility Pty Ltd.[79]
[79] A11, folios 45 to 46
Also in evidence is a Vehicle Modification Assessment Tool, completed by Ms Shearing on 16 February 2023.[80] It states that the 2013 Toyota Hiace used to transport the Applicant is no longer safe due to the Applicant’s behaviours, including kicking the seat in front of him and grabbing at people. A behaviour support plan had not been created to reduce the Applicant’s behaviours of concern whilst being transported.[81] When transported the Applicant is seated in his Sorg Loop wheelchair, which is transport approved and is considered the safest means of transport.[82] When the ownership of the vehicle and date of purchase was requested, Ms Shearing responded that it was to be confirmed.[83] The cost of modifications to a vehicle was declared to be $34,200, apparently based on a statement from Ms Sally Keast, Automobility Pty Ltd which confirmed that the Kia Carnival purchased by the Mother was modified for wheelchair access in May 2022 at a cost of $34,200.[84]
[80] R13, folios 1044 to 1061
[81] R13, folios 1064 to 1068
[82] R13, folio 1049
[83] R13, folio 1052
[84] R13, folio 1063
Ms Shearing completed a Risk Assessment Checklist for Wheelchair Transportation in Vehicles form (undated) which assessed the Kia Carnival as suitable for the Applicant’s needs.[85]
[85] R13, folios 1262 to 1267
In her written submissions dated 13 February 2024 the Mother explained that she maintains two vehicles and that it is neither fair nor reasonable for her to meet this cost. She states that the WAV is more appropriately considered a piece of equipment. She states that the annual running costs are $8,622.12.[86]
[86] A43 folios 381 to 382
At hearing the Mother testified that she bought the WAV already modified and stressed that without this vehicle, the Applicant cannot participate in the community. She estimates that the WAV is only going to last another five years. This is not an everyday cost; she knows no one who has to purchase a vehicle for $80,000.[87] She had to use her funds from the marital property settlement to meet this cost. She submits that other options such as renting a vehicle or using public transport are not appropriate or feasible for the Applicant.
[87] A58, folio 451
The Respondent’s position is that vehicle insurance, registration, petrol and servicing constitute day to day living costs, which cannot be funded under the NDIS.
As to the issue of reimbursing the purchase cost of the modified vehicle, the Respondent’s position is that there is insufficient evidence to determine that the vehicle modifications meet the requirements set down in sections 33 and 34 of the Act.[88] This is apparently on the basis that evidence of the purchase and registration of the modified vehicle has not been provided, nor has documentation been provided to substantiate that the modifications are still under warranty or attesting to the expected lifespan of those modifications.
Findings of fact and application to the law
[88] R5, folios 574 to 575
I accept that the Applicant’s only way to access his community and interact socially outside the family is by being transported in a modified vehicle.
As already outlined, Schedule 2 to the Transitional Rules outlines supports that are generally not considered NDIS supports. Relevantly it includes, at subsection 1 Item 6, motor vehicles, registration and petrol as well as transport for children as part of their reasonable care and support provided by their family. I am satisfied that the costs associated with running of the motor vehicle in which the Applicant is transported are not NDIS Supports as required by paragraph 34(1)(f) of the Act and so cannot be funded through the Scheme.
The Vehicle Modifications and Driving Supports Guideline states that certain evidence is required before the funding for modifications will be granted under the Scheme, including proof of purchase, an engineering certificate from a licensed vehicle modifier and a vehicle condition report or proof of warranty.[89]
[89] fications-and-driving-supports
There is no evidence before me as to what vehicle is currently used to transport the Applicant, the purchase cost of that vehicle and about any modifications. The Applicant’s Mother submits that these were provided to the Tribunal and Respondent on 18 April 2024. There is no such evidence before me.
Without the benefit of such evidence, I did not proceed to consider whether the modifications to the vehicle used to transport the Applicant is a reasonable and necessary support for the purposes of subsection 34(1) of the Act.
Specialist Disability Accommodation
The evidence before the Tribunal
The Mother asserts that it is the responsibility of the Scheme and not the Department of Communities to meet the Applicant’s housing needs. She asserts that their current home is not safe for the Applicant. The type of SDA she seeks is a new build villa/duplex or townhouse, with a design facilitating high physical and onsite overnight assistance.
The Mother’s evidence at hearing is summarised as follows. She and her three sons have lived in a Department of Communities property since February 2024. She and the Applicant share a bedroom, as her other sons do not generally get along and therefore require separate bedrooms. It is not age-appropriate for she and the Applicant to share a room. She cannot understand how the Agency asserts that an SDA home will not provide better outcomes for the Applicant.
Further, she is unable to purchase her own home as she cannot engage in paid work because of the Applicant’s care needs. She is unable to afford private rental and, in any event, private rental accommodation does not meet the Applicant’s accessibility requirements. She states that SDA is the only housing solution available and she has “exhausted all my other options”.
At hearing the Mother testified that the shared bathroom “works”, however that it is shared with her and the Applicant’s two siblings and it has impeded the Applicant’s toilet training. Under cross-examination she stated that the Applicant can be assisted with showering and toileting within the current bathroom, however there is insufficient space for a change bed to dry and dress the Applicant. The Mother confirmed that a ceiling hoist in the bedroom would assist her in dressing the Applicant. She also confirmed that the current accommodation has air-conditioning in the loungeroom and in the bedroom she shares with the Applicant.
Under cross-examination the Mother agreed that the Applicant can access the lounge and kitchen, but stressed he cannot do dishes because of the kitchen cupboard design and bench height which require modification. The Mother also noted that the linoleum flooring in the home causes contact dermatitis when the Applicant crawls. In their previous accommodation this was not an issue as there was wooden flooring.
The Mother declared that she has not sought home modifications with the Department of Communities as recommended in Ms Shearings report as the family requires an additional bedroom and there is no capacity for this in their current home. It was put to the Mother that Ms Shearing’s report does not recommend an additional bedroom, to which the Mother responded that it was not “normal” for her and the Applicant to share a room.
In contradiction to her earlier evidence the Mother did confirm that she provided Ms Shearing’s 12 January 2024 report to the Department of Communities. Some two weeks prior to hearing Ms Laura Khng, advanced clinician occupational therapist, Rocky Bay Health and Community undertook a home assessment at the request of the Department of Communities; the Mother expects the report to be finalised soon.[90] It is her understanding that it is this occupational therapy report that will inform the Department of Communities’ decision as to what home modifications will be approved.
[90] A60
At hearing the Mother also provided a letter dated 23 October 2024 from Ms Emma Ferguson, regional executive director, Department of Communities. [91] It states that, as of 2 February 2024, the family is listed for priority transfer to a four bedroom, two bathroom mobility accommodation home in the North Central zone and also dual listed for community housing with the same bedroom/bathroom requirements. No timeframe as to when a vacancy will arise was able to be provided. The letter went on to state:
…
Regarding the side access gate at [the Applicant’s current home] I can advise Communities has obtained a structural engineer report and scope of works to shorten the wall, and have a wider gate installed. As part of the works process, Communities is currently seeking quotes for the structural work to be undertaken.
[91] A61
In a report dated 12 July 2021 Ms Melissa Howard, occupational therapist, undertook an assessment for SDA.[92] She reported that the Applicant’s (then) accommodation was not accessible or conducive to his needs.[93] Mainstream accommodation was considered but deemed unsuitable, given the Applicant’s needs and the timeframe for being accepted into social housing being unknown.[94] Ms Howard recommended SDA in the form of a high physical support villa/duplex/townhouse with a support model of onsite overnight assistance.[95]
[92] R13, folios 842 to 873
[93] R13, folio 849
[94] R13, folio 850
[95] R13, folio 861
In a report addressing SDA eligibility and suitability dated 12 October 2021, Mr Jason Williams, consultant, SDA Services Pty Ltd declared that SDA was a reasonable and necessary support for the Applicant and most appropriately funded or provided by NDIS. Mr Williams went on to state that there is no known alternative service that could provide suitable accommodation for the Applicant.[96]
[96] R13, folios 878 to 959
In a letter of support dated 10 June 2022 co-authored by Senses WA practitioners Ms Shearing, Ms Johnson, Ms Emma Cullingford, senior physiotherapist, Ms Ros Dungey, speech pathologist and Ms Emma Barlow, senior psychologist. They stated that the Applicant’s rental accommodation required home modifications to ensure it met the Applicant’s disability needs and equipment.[97] However, as it was a rental unit it was noted that the NDIS would be unlikely to fund those modifications unless it was likely that the Applicant would continue to live in the property for at least another five years.[98] The authors envisaged that provision of SDA accommodation would enable the Applicant to engage in activities not currently possible, including toileting, meal preparation and hygiene management as well as minimise risks associated with manual handling and self-care routines.[99]
[97] R13, folios 968 to 994
[98] R13, at folio 973
[99] R13, folio 987
In a report dated 26 May 2023 Mr Jack Hutchison, SDA Services Pty Ltd recommended that NDIS should approve a high physical support SDA with overnight assistance designed villa/duplex or townhouse.
In a report dated 12 January 2024 Ms Shearing advised that she would support home modification to the Department of Communities’ property in which the Applicant currently resides.[100] It notes that Department of Communities had provided a level access 3 bedroom, 1 bathroom that is lacking some necessary devices and systems to ensure the Applicant’s safety. Ms Shearing reported that the Applicant can enter the home through the front door, but his wheelchair scrapes the sides of the door. She submits that should the Applicant have further growth, he will be unable to enter the home. The Applicant is unable to access the home through the back door. The bathroom does not have sufficient circulation space for a hoist and transfer, therefore he is unable to trial toilet training. A ceiling hoist is also recommended in the Applicant’s bedroom, which he shares with his Mother. It is recommended that the Applicant have his own room to minimise sleep disruption to his Mother should an overnight carer be approved. There is also insufficient room in the open garage to store the Applicant’s equipment and does not provide sufficient cover to allow the Applicant to transfer in and out of the car safely. Air-conditioning and suitable window coverings were also recommended to assist the Applicant’s thermoregulation functions, impaired due to his cerebral palsy. Home automation was also suggested to increase the Applicant’s independent living skills, whereby it is suggested that this would reduce his need for formal 1:1 supports.
[100] A41, folios 346 to 363
In a home assessment undertaken in April 2024 Ms Shearing restated her recommended modifications to the Department of Communities’ property.[101] These included widening the front door access so the Applicant’s wheelchair does not scrape the door frame, widening of the back gate (which currently prohibits access to the backgarden by the Applicant), a ceiling hoist be installed in the bathroom and the Applicant’s bedroom, driveway shading be extended, the garage be enclosed to increase storage and changes to the flooring to floorboards, polished concrete or large smooth tiles. Blockout blinds and reverse-cycle air-conditioning were also recommended.
[101] A37, folios 310 to
In her response to targeted questions dated 15 December 2024[102] Ms Shearing reported that should the Applicant be provided with home modifications or a fully accessible home, including a ceiling hoist, he would no longer require 2:1 assistance for simple transfers and toilet training could then be trialled. He would also be able to mobilise independently around the home. She anticipated that with further skill development in activities of daily living he would require less 2:1 support.[103] There is no reference to the need for air-conditioning.
[102] A38, folios 329 to 337
[103] A38, folio 333
The Respondent’s position is that the Applicant does not meet the requirements for SDA. In reaching this position the Respondent contends that the Applicant does not meet the requirements set down under the SDA Rules and, even if these were met, it is not a reasonable and necessary support pursuant to subsection 34(1) of the Act.
Findings and application of those facts to the law

In my view the Respondent properly conceded that the Applicant currently meets the requirement in sections 12 and 13 of the SDA Rules and I find accordingly. These findings are based on the functional capacity assessment reports undertaken by occupational therapists Ms Melissa Howard and Ms Shearing in 2020, 2023 and 2024 respectively.
The Tribunal has also placed significant weight on the report provided by Ms Shearing dated 15 December 2024, which is an assessment based on the current accommodation provided by Department of Communities. Quite obviously, the pre-2024 home assessments have little probative value given that they assess the appropriateness of the Applicant’s previous private rental accommodation.
In undertaking my assessment, I must have regard to the paragraph 3(1)(a) of the Support Rules which states that the CEO (or this Tribunal in her place) must consider whether there are “comparable supports which would achieve the same outcome at a substantially lower cost”. Subclause 7.1 in Schedule 1 to the Support Rules states that the Act limits supports to be funded by the NDIS to supports that “are not more appropriately funded or provided through other service systems”.
Subclause 7.19 in Schedule 1 to the Support Rules states that the NDIS will be responsible for:
…
(c)Home modifications for accessibility for a person in legacy public and community housing dwellings on a case-by-case basis but not to the extent that it would compromise the responsibility of housing authorities to develop, maintain and refurbish stock that meets the needs of people with disability; …
Subclause 7.20 goes on to state that the NDIS will not be responsible for:
(a)The provision of accommodation for people in need of housing assistance, including routine tenancy support and ensuring that appropriate and accessible housing is provided for people with disability; …
I am required to consider various factors when determining whether the Applicant meets the SDA needs requirements, as set down in section 14 of the SDA Rules.
I first turned my mind to paragraph 14(1)(e) of the Act which requires consideration of whether, when compared to other supports alone, these supports combined with SDA would represent better value for money. That is, I must be positively satisfied that the provision of SDA would represent better value for money than other accommodation and supports, having regard to the benefits to the participant and any reduction in other supports that flow from the provision of SDA.[104]
[104] Subsection 14(2) and paragraph 14(1)(e) of the SDA Rules
I found the reports prepared by Ms Howard and Mr Williams persuasive in their assessment of other available mainstream accommodation. Had the Department of Communities not provided the Applicant with disability modified accommodation the application for SDA support may have had prospects of success.
However, the fact is that the applicant currently lives in a disability accessible Department of Communities property. There is no doubt that this property requires modifications that would assist the Applicant, as outlined in Ms Shearing’s April 2024 report. The evidence from Department of Communities is that the modification regarding the back gate entrance is in train and the Mother has testified that a further assessment was undertaken at the request of the Department of Communities regarding other necessary modifications. I am satisfied that there is some appetite from Department of Communities to undertake some modifications to the current property. According to Ms Shearings report, the most crucial of these is the installation of the ceiling hoists in the bathroom and the Applicant’s bedroom.
I am not persuaded that SDA will deliver better value for money when compared to the current disability accommodation provided by Department of Communities, notwithstanding the fact that certain modifications are required. By any reasonable measure, it cannot establish that the provision of SDA would result in better value for money when compared to the Applicant’s existing housing. I make this finding notwithstanding the fact that there is no evidence before me regarding the cost of providing SDA to the Applicant. However, it is not unreasonable to assume that the cost of a SDA build would be considerably more than if all the modifications recommended in Ms Shearing’s report were implemented.
For completeness, I note that I am not persuaded that the provision of SDA support, in combination with the Applicant’s current supports and those determined above, would result in the Applicant to be better able to pursue his goals and aspirations set down in his most recent plan.[105] Furthermore, I am not satisfied that the provision of SDA would alleviate the impact of the Applicant’s impairments on his functional capacity, nor be more effective in providing the Applicant with stability or support or improve his life stage outcomes.[106]
[105] Paragraph 14(1)(a) of the SDA Rules
[106] As required subparagraph 14(1)(b)(i), paragraph 14(1)(d) and 14(2) of the SDA Rules.
I conclude that subsection 14(1) of the SDA Rules and paragraph 34(1)(c) of the Act are not established. Accordingly, the Applicant is not eligible for SDA. Therefore, the provision for SDA is not included in the Applicant’s plan.
Plan Management and Duration
The Applicant did not pursue self-management of the plan at hearing. This is appropriate in the circumstances. Therefore, the current arrangement of plan management will remain in place.
As to the duration of the Applicant’s plan, as amended by this decision, I consider it appropriate that it be reviewed in 12 months’ time.
DECISION
For these reasons I set aside the decision under review and remit the matter to the Respondent for reconsideration with directions that the following reasonable and necessary supports are to be funded under the National Disability Insurance Scheme:
1.   Core supports:
1.1 Assistance with self-care and daily activities:
(i)6 hours per day of 2:1 assistance with self-care (7 days per week, 48 weeks per year, totalling 2,016 hours per year), with the support workers funded at high intensity rate;
(ii)2 hours per day of 1:1 assistance with self-care (7 days per week, 48 weeks per year, totalling 672 hours per year), with the support worker funded at high intensity rate;
(iii)1:1 inactive overnight support per night (7 days per week, 48 weeks per year);
(iv)the Applicant’s existing funding for assistance with social and community participation be maintained but the care ratio be modified to comprise:
(a)Saturdays: 5 hours per week, 40 weeks per annum at 2:1 ratio (totalling 10 hours per week of funding); and
(b)Weekdays during school holiday periods at 6 hours per day at a 1:1 ratio when attending ‘Group Activities in a Centre’.
(v)      The existing 28 days of STA and Assistance (including respite) be maintained but the care ratio be modified to comprise:
(a)Weekdays: an additional 4 hours per day of assistance with a 2:1 ratio for activities involving self-care;
(b)Saturdays: an additional 4 hours per day of assistance with a 2:1 ratio for activities involving self-care;
(c)Sundays: an additional 4 hours per day of assistance with a 2:1 ratio for activities involving self-care.
2.   Capital supports are to include:
2.1 Provision of a commercial front load washing machine subject to the provision of two valid quotes;
3.   Plan management and review
3.1 All other reasonable and necessary supports in the 14 February 2024 statement of participant supports (excluding any one-off assistive technology already funded) shall be replicated; and
3.2The reassessment date is 12 months after the day on which the above reasonable and necessary supports are included in the Applicant’s statement of participant supports.

Date(s) of hearing: 19 - 20 November 2024

Date final submissions received: 27 November 2024

the Applicant Self-represented

Counsel for the Respondent: Ms J Flynn

Solicitors for the Respondent: MS D Underwood, Moray & Agnew

Date(s) of hearing:	19 - 20 November 2024
Date final submissions received:	27 November 2024
the Applicant	Self-represented
Counsel for the Respondent:	Ms J Flynn
Solicitors for the Respondent:	MS D Underwood, Moray & Agnew