TGJH and National Disability Insurance Agency (NDIS) [2025] ARTA 1013 (5 June 2025)
Applicant:TGJH
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/0666
Tribunal:Senior Member J Collins
Place:Brisbane
Date:5 June 2025
Decision:Pursuant to subsection 105(c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with a direction:
1. that within 28 days of this decision TGJH’s statement of participant supports specifies the following supports:
(i) Specialist Disability Accommodation
o Building Type: one bedroom, one resident, with unplanned on-site shared support in an SDA
o Design Category: Fully accessible.
(ii) 53 hours per week for support worker assistance.
(iii) 102 hours of occupational therapy comprised of:
o 72 hours from an occupational therapist; and
o 30 hours of complimentary services from an allied health assistant.
(iv) 80 hours of exercise physiology comprised of:
o 20 hours from an exercise physiologist; and
o 20 hours of complimentary services from an allied health assistant.
(v) 5 hours continence assessment.
(vi) 8 hours of podiatry.
(vii) 72 hours of support coordination.
(viii)Bidet toilet seat subject to a quotation provided by TGJH.
(ix)Replacement electric lift recliner chair in the sum of $4,163.50.
(x)Manual wheelchair with power assist subject to a quotation provided by TGJH.
(xi)Over table chair subject to a quotation provided by TGJH.
(xii)Electric bed subject to a quotation provided by TGJH.
2. The date by which the Agency must reassess TGJH’s plan is to be 12 months after the date on which the supports in (1) above are included in TGJH’s statement of participant supports;
3. All other supports in TGJH’s existing statement of participant supports are to be replicated pro-rata from the date of this decision until the reassessment date.
................[SGD].................
Senior Member J Collins
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary support– cerebral palsy (spastic diplegia), tachycardia, lymphoedema, anxiety, depression, attention deficit hyperactivity disorder – Specialist Disability Accommodation- Support worker assistance - Occupational therapy- Exercise Physiology – Specialist physiotherapy - Incontinence nurse - Continence items – Podiatry - Support coordination - Level 3 transport funding - Bidet toilet seat - electric lift recliner chair - Manual wheelchair with power assist - Over table chair - Wheelchair charging station - Electric bed - Compression stockings - Vascular compression pump - Indee floor lift - Rules 11,12,14 SDA Rules- Section 34 National Disability Insurance Scheme Act 2013 (Cth) – decision remitted.
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act) (Cth)
Administrative Review Tribunal Act 2024 (Cth) s105
National Disability Insurance Scheme Act 2013 (Cth) s10, s33, s34, s35, s99, s103
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)- s129
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth)- Rules 5, 11, 12, 13
Cases
G v Minister for Immigration and Border Protection [2018] FCA 1229
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577XYZ v Commonwealth [2006] HCA25; (2006) 227 CLR 532
Secondary Materials
NDIS – Operational Guidelines – Reasonable and necessary supports
NDIS Operational Guidelines – Specialist Disability Accommodation as at 14 February 2025
Statement of Reasons
TGJH, a 28-year-old woman, is a participant in the National Disability Insurance Scheme (‘the scheme’).
TGJH became a participant in the scheme on the basis of meeting the access requirements due to impairments as a consequence of cerebral palsy (spastic diplegia). The Agency accepts that TGJH also has tachycardia, lymphoedema, anxiety, depression and attention deficit hyperactivity disorder (ADHD).[1]
[1] Respondent’s SFIC [13].
On 9 September 2022, the Agency approved a statement of participant supports (SOPS) for TGJH.[2] TGJH was dissatisfied with her SOPS and requested a review of her SOPS on 8 December 2022.[3]
[2] T24.
[3] Respondent’s SFIC [3].
In requesting an internal review, TGJH requested funding for Specialist Disability Housing (SDA).
SDA is defined as follows:[4]
‘accommodation for a person who requires specialist housing solutions, including to assist with the delivery of supports that cater for the person’s extreme functional impairment or very high support needs’.
[4] Rule 5, National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth).
TGJH also requested funding for the following supports:
·maintenance and repair of equipment;
·the purchase of a replacement wheelchair;
·Support coordination funding to be increased to 72 hours per year of support;
·Social community and civic participation to be increased $176,114 per year.
On 3 February 2023, the Agency conducted an internal review and confirmed its decision not to fund the supports requested in [6] (‘the decision under review’).[5]
[5] T1A, T2, Subsection 100(6) NDIS Act.
On 4 February 2023, TGJH applied to the Administrative Appeals Tribunal (AAT) for a review of the Agency’s decision to not fund SDA and other supports for her as reasonable and necessary support.[6] In support of her application TGJH stated:
‘I disagree with the assessment that I am not eligible for SDA and also the decision not to increase my plan funding as well as specifically my support co-ordination funding not being increased.
[6] T1.
From 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), 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. This decision and statement of reasons is made by the Tribunal.
TGJH attended the hearing and represented herself. The Agency was represented by Ms Fiona Batten of counsel instructed by Minter Ellison Lawyers.
ISSUES
In this review, TGJH advised that she sought funding for the following nineteen (19) supports:
SDA – 2 bedroom, 1 resident apartment with onsite overnight assistance;
Support worker assistance at a 1:1 ratio for 67 hours per week;
Occupational Therapy – 102 hours per year;
Exercise Physiology – 80 hours per year;
Specialist Physiotherapy – 30 hours per year;
Incontinence nurse – 15 hours per year;
Continence items – $2,500.00 per year;
Podiatry – 8 hours per year;
Support coordination – 72 hours per year;
Level 3 transport funding;
Bidet toilet seat;
Replacement electric lift recliner chair;
Manual wheelchair with power assist;
Over table chair;
Wheelchair charging station;
Electric bed;
Compression stockings;
vascular compression pump; and an
Indee floor lift.
Prior to the commencement of the hearing, the Agency advised that it accepted that that the following supports are reasonable and necessary pursuant to section 34(1) of the NDIS Act:
Bidet toilet seat;
Replacement electric lift recliner chair;
Manual wheelchair with power assist; and
Over table chair.
The issues before the Tribunal can therefore be summarised as follows:
Firstly, whether TGJH is ‘eligible’ for SDA under rule 11 of the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth);
Secondly, on the basis that she is ‘eligible’, whether SDA is a ‘reasonable and necessary support’ for TGJH under section 34 of the National Disability Insurance Act 2013 (‘NDIS Act’);
· Thirdly, on the basis TGJH is ‘eligible’ for SDA and it is also a ‘reasonable and necessary support’ for her, what features of SDA are most appropriate for TGJH under Rule 15 of the SDA Rules: and
· Fourthly, whether the supports that remain in dispute as referred to in [11] are reasonable and necessary supports pursuant to section 34(1) of the NDIS Act.
On 3 October 2024, and prior to the completion of this review, the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (‘the Amending Act’) made a range of ‘amendments’ to the NDIS Act.[7] These amendments will apply to this review.
[7] Section 129 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024.
THE NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 (CTH)
Section 34 of the NDIS Act identifies what constitutes a ‘reasonable and necessary’ support under the scheme.
At the time of the application to the AAT, 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 National Disability 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).
On 3 October 2024, and prior to the completion of this review, the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (‘the Amending Act’) made a range of ‘amendments’ to the NDIS Act.
These amendments in respect of the requirements pursuant to section 34 of the NDIS Act will apply to this review.[8]
[8] Section 129 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024.
Section 34 of the NDIS Act, as amended, provides as follows (emphasis of amendments added by the Tribunal):
Reasonable and necessary supports
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is an NDIS support for the participant.
(g)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). (emphasis of amendments)
Subsection 34(1) of the NDIS Act is cumulative and therefore all the criteria must be met.
Paragraph 34(1)(aa) of the NDIS Act, which is an amendment, imposes an additional requirement of the criteria. This additional requirement is the consideration of whether the support is necessary to address the needs of TGJH which arise from the impairment/s for which she met the disability requirements.
Subsection 34(1)(f) of the NDIS Act is also an amendment; however, it is a replacement of an ‘old provision’ with a ‘new provision’.
This new provision of subsection 34(1)(f) of the NDIS Act requires that the support is an ‘NDIS support’.
Also relevant to this review is the inclusion of section 10 to the NDIS Act, made pursuant to the Amending Act. Section 10 of the NDIS Act provides a definition of what constitutes an ‘NDIS Support’ for the purposes of subsection 34(1)(f) of the NDIS Act (as amended). Section 10 of the NDIS Act provides 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.
(h) 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.
(i) 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 ( that 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.
(j) 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.
(k) Note 1: A determination may be revoked under subsection 33(3) of the Acts Interpretation Act 1901.
(l) 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.
Subsection 34(2) of the NDIS Act provides that the NDIS Rules may prescribe methods or criteria to be applied, or matters to which the CEO must have regard, in deciding whether the criteria under subsection 34(1) of the NDIS Act are met in respect of a requested support.
Section 35 of the NDIS Act provides for the making of rules in relation to prescribing reasonable and necessary supports or general supports that will not be funded or provided under the NDIS. The relevant rules in respect of this review are the:
·National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘Supports Rules’);
·National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (‘Transitional Rules’); and
·National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2013 (‘SDA Rules’).
Schedule 1 to the Transitional Rules identifies supports that are NDIS supports unless otherwise provided, for the purposes of subsection 10(1) of the NDIS Act. Likewise, Schedule 2 to the Transitional Rules identifies supports that are generally not NDIS supports for the purposes of subsection 10(1) of the NDIS Act.
In McGarrigle v National Disability Insurance Agency[9] at [43], Mortimer J (as Her Honour then was) made the following observations in respect of these rules:
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.
[9] McGarrigle v National Disability Insurance Agency [2017] FCA 308 (‘McGarrigle’).
The phrase ‘reasonable and necessary’ is not defined in the Act. It is a composite phrase and should be considered as such. In McGarrigle, Mortimer J also stated as follows:[10]
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”.
[10] Ibid at [91].
The Full Court in National Disability Insurance Agency v WRMF[11] also considered the meaning of reasonable and necessary supports, and stated as follows [149]-[151]:
The phrase is a composite phrase. We accept the Agency's submissions that 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 CLR 532 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)
[11] National Disability Insurance Agency v WRMF [2020] FCAFC 79 (‘WRMF’).
OPERATIONAL GUIDELINES
The Agency issues Operational Guidelines in relation to what are considered ‘reasonable and necessary supports’ in a participant’s plan. There is no power conferred by the Act to make these Operational Guidelines, and they are issued in an exercise of executive power.[12] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines. However, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[13] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[14] where Mortimer J held:[15]
Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it.
[12] Minister for Home AffairsvG [2019] FCAFC 79 at [18].
[13] [1979] AATA 179 (1979); 2 ALD 634.
[14] [2018] FCA 1229.
[15] Ibid at [171].
Accordingly, unless the Operational Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in a determination of what is a reasonable and necessary support for TGJH. The Guidelines relevant to this review are the:
·NDIS – Operational Guidelines – Reasonable and necessary supports; and
·NDIS – Operational Guidelines – Specialist Disability Accommodation.
EVIDENCE
I have considered all the written evidence filed with the Tribunal, the oral evidence provided at the hearing on 7, 8 and 9 May 2025 and the parties’ closing submissions. I will refer in my decision to some of the more salient aspects of the evidence. However, the fact that I do not refer to all parts of the evidence does not mean that I have not taken all evidence before the Tribunal into account in reaching my decision.
Evidence about TGJH
TGJH has the following diagnoses:
· cerebral palsy - spastic diplegia (CP);
· tachycardia;
· lymphoedema;
· anxiety;
· depression; and
· attention deficit hyperactivity disorder (ADHD).
TGJH lives alone in a single level one bedroom apartment. She rents this apartment through a ‘student accommodation’ provider and her mother subsides her rent. Her apartment has one bathroom, one living area, one bedroom and a kitchen. Access to her apartment, which is on the twelfth floor, is via a lift.[16]
[16] Respondent’s SFIC [14].
TGJH considers that her apartment is not accessible and safe in the context of her disability.[17] She also contends that she has inadequate social and community funding, which limits her ability to connect with friends and the community on the weekends or after work.[18]
[17] T16.
[18] T16.
TGJH’s mother resides overseas for approximately 8 – 9 periods months each year.[19] Her mother is 66 years of age and has her own health issues. She provides TGJH with financial and emotional support but is unable to provide her with regular and consistent physical support.
[19] Respondent’s SFI [15].
TGJH is estranged from her father. She has an older sister, who is married with two children and resides interstate.
TGJH works part-time in paid employment, generally 2 days per week. This work is generally from home on one day of each week. On the other day, she works at other locations away from her home. In addition, TGJH also undertakes freelance work in film production, advocacy and public speaking for approximately 20 hours per month.
TGJH receives a disability pension.
TGJH attends 1-2 allied health appointments each week.[20] Generally she has fortnightly occupational therapy, weekly exercise physiology and weekly physiotherapy all of which are undertaken in her home. She also has reviews by a dietician every 4-6 weeks and by her general practitioner review when required.[21]
[20] Mare report 3.2.2.
[21] Mate report 3.3.1.
The goals in TGJH’s SOPS[22] are as follows:
[22] Exhibit 3.
· Appropriate support for work, both formal skills and informal skills either in the workplace or self-employed, a mix of both, or further study and work-related travel if needed;
· To adequately support my mental health while recovering from the pandemic and overcoming disability-related challenges mentally during this period of change;
· To increase wellbeing and participate in a sport by finding a sport I enjoy and have support to attend, use equipment, and have enough support not to neglect personal hygiene or daily needs after;
· To have the supports I need to go on a holiday independently;
· To locate, maintain, and live successfully and independently by myself in appropriate and accessible, safe, housing. Where I can still get assistance from support workers when needed and ultimately achieve more privacy and independence; and
· To increase my opportunities by gaining age appropriate skills and experiences in home and the community and support for being independent when wanting to do or try new, structured or unstructured recreational activities in the community.
43. TGJH gave oral evidence at the hearing. I am satisfied that her evidence was honest, truthful and without exaggeration. TGJH’s oral evidence can be summarised as follows:
· She does not have an intellectual or cognitive impairment. She does however have some sensory issues due to her ADHD;
· She is unable to mobilise independently;
· She uses forearm crutches to mobilise in her apartment and an electric wheelchair operated by a joystick to mobilise in the community;
· She does not use her wheelchair inside her apartment;
· She currently lives in student accommodation even though she is no longer a student. Recently she was served with an eviction notice. Her attempts to locate other suitable rental disability accommodation have to date been unsuccessful;
· She cannot properly heat up food in the microwave. This is because she must use crutches to ambulate and therefore cannot carry hot foods at the same time. For this reason she has ‘given up’ drinking tea and coffee;
· When returning from the community she can only park her wheelchair inside her apartment if a support worker is present to open her front door. If she is alone, she cannot open her front door as it is too heavy. In these circumstances, she must leave her wheelchair, unsecured in the hallway outside her apartment and mobilise into her apartment using forearm crutches;
· The right side of her body is more affected by CP. She struggles significantly with her ‘balance’;
· She is only able to ambulate using her crutches a distance of approximately 20 meters;
· She can access trains and trams at disability stations provided they have disability access. She is also able to access wheelchair accessible taxis;
· She accesses the community for work or social activities. She attends an annual festival that caters for people with disability needs; She also plays cards on the weekend at a card game centre;
· To get in and out of bed she uses combination of a step with a grab rail and her forearm crutches;
· She is able get in and out of her shower recess however she has a significant history of falls due to water on the tiles and balance issues;
· She uses a shower seat to shower with a long-handled sponge to wash the lower parts of her body. She washes her hair 2 or three time a week with the assistance of her support worker;
· She currently showers daily. She struggles with continence and would prefer to shower twice a day stating that an evening shower assists her to manage her incontinence during the day and post toilet hygiene;
· She regularly requires urgent toileting. She is unable to independently get to a toilet ‘quickly’. Historically she has had many accidents. Understandably, this is a source of embarrassment and significant concern;
· When accessing the community, she will starve and dehydrate herself to avoid having the need to use public toilet facilities;
· It takes her a long time to get to the toilet even when she is at home. Often, she will soil herself before she is able to reach the toilet. For this reason, when alone in her apartment, she will often be naked. This is so that she can access the toilet quickly, without the difficulty of having to remove clothing on her lower body;
· When she wakes in the morning, her sheet are regularly soiled:
· Her sheets must be washed most days as a result of overnight incontinence. Her clothes are soiled each day as a result of spills and incontinence;
· She will often eat and drink in her bed to avoid spills on the floor of her apartment;
· She manages her continence and menstruation with self-funded products;
· She is able to reach slightly above her head and down to the level of her knees;
· She can pick up items from the floor, but not consistently. On occasions she will fall;
· Due to her CP, she has developed scoliosis and lordosis. Her ankles also have become swollen;
· She is able to dress herself but only over an extended period of time. Dressing her upper body is easier than her lower body. She dresses herself whilst seated. She uses a sock donner to put on socks and requires assistance from her support worker to put on shoes.
· She is able to brush her teeth and the front of her hair;
· She can cut her fingernails but not toenails. She is unable to inspect her feet for injury. Due to her CP, her gait is affected and her toes and feet ‘drag’ on the floor when she walks;
· She takes a number of medications from a dosette box which is packed with help from her support worker. She manages the timing of taking her medications with the assistance of an App for reminders;
· Currently her support worker assists her for four hours each weekday and 2 hours on Saturday and Sunday. This support worker assistance is utilised as follows:
o Preparation of breakfast and lunch;
o Showering and dressing;
o Preparation of snacks such as fruit chopped and placed in a zip lock bag;
o Grocery shopping including the pharmacy;
o Laundry and cleaning;
o assistance with setting up her workspace;
o accessing the community.
· For dinner, TGJH generally buys pre-made meals;
· She uses metal mugs and plastic plates for her food and drink. This is on the basis that if dropped they will not break;
· When carrying food and drink there are regular spills;
· She has her own budget and is able to make and attend medical and allied health appointments;
· She has a few different friendship groups. Her preference is to socialise at her apartment so that she can be close to her toilet;
· She prepares and provides grocery lists to her support workers and buys her clothes online;
· She enjoys attending a local card game each weekend.
TGJH explained that SDA with a concierge service would assist her with toileting when she was alone, particularly overnight so as to avoid her regular incontinence.
TGJH considers that her CP has resulted in a neurological impairment. She explained that when fatigued it is difficult for her ‘brain to connect to my legs’.
TGJH’s preference is to avoid having to use a wheelchair in her apartment for as long as possible. She prefers to continue mobilising using her forearm crutches. She has been advised that it is better for her physical condition to continue to be upright and mobilising for as long as possible.
TGJH has a history of falls. A recent fall in 2025 occurred whilst showering in the presence of her support worker. She would like to work on strategies to avoid falls but there is insufficient funding in her current SOPS.
To mitigate falls, TGJH remains barefoot inside her apartment and tries not to ‘rush’.
She considers she would be unable to independently put on compression stockings.
TGJH seeks a 2-bedroom SDA so that she can have a room to store her assistive technology and use as a home office;
Evidence of Mr Elliot Mate.
Mr Elliot Mate is an occupational therapist. He conducted a functional assessment of TGJH on 7 March 2024 at her apartment. He provided a report dated 12 April 2024 and oral evidence at the hearing. I am satisfied that Mr Mate’s evidence was honest and truthful and in accordance with his obligations as an expert witness.
In his report, Mr Mate refers to the following in respect of TGJH:
· He considers her current accommodation is suitable for her needs;
· She is independent in the domains of social interaction and self-management;
· She requires assistance with mobility and self-care;
· She is able to communicate her needs, use the internet, email and use communication mediums to work from home;
· She has a few friends with whom she has regular contact;
· She accesses the community generally every two weeks;
· She has completed an arts degree, majoring in film production;
· She is employed part-time and does other freelance work;
· She mobilises in her home using bilateral forearm crutches. Her mobility using her forearm crutches is limited to 20-30 metres;
· She accesses the community in a wheelchair;
· She can access items between her hip level and head, but has difficulty with balance when accessing items below her waist;
· She has a history of falls. On occasions an ambulance has been called;
· Her bed is bolted to the wall. She can complete bed transfers with a modified technique using a platform step and handrail next to her bed;
· She can complete transfers on and off her electric recliner chair, wheelchair and shower chair using forearm crutches;
· She sits on a stool to undertake her own grooming.
· To complete a toilet transfer she uses forearm crutches and a L-shaped grab rail;
· Her bathroom is fully accessible and is supportive of her disability needs. It has an accessible hobless shower recess and meets AD 1428 accessibility standards;
· She is able to access her shower independently, however showering can take up to 45 minutes;
· She is also able to independently dress herself however this can also take her up to 45 minutes to complete;
· She uses a shoehorn and sock aid to put on socks and shoes;
· She has limited capacity for carrying and lifting items due to her impaired balance and her reliance on forearm crutches;
· She is able to use taxi and ubers;
· She experiences incontinence and would like an assessment by an incontinence nurse so as to provide recommendations. To manage her incontinence, she showers after toileting and wears incontinence underwear;
· She has difficulty with complex meal preparation tasks due to reduced balance, standing tolerance and strength in her upper limbs;
· She can complete small shopping tasks. Larger shopping is performed by support workers with TGJH providing a shopping list;
· She requires assistance with heavy cleaning tasks. She is however able to undertake light cleaning tasks such as wiping a bench, minor spot cleaning, rinsing dishes or cutlery;
· She depends on her support workers to manage all laundry, including her clothes and linen;
· She has the capacity to plan, problem-solve, and make decisions. She organises her own medical and therapy appointments, has her own bank account, manages her own finances, is able to budget and manage her money and pay her own mobile phone bill.
Whilst Mr Mate considered that TGJH’s current accommodation was suitable for her needs in his report, he did recommend 18-22 hours of formal support worker assistance in the domains of mobility, self-care and work. This recommendation acknowledged an increased night and weekend rate particularly as community access was likely at these times. Mr Mate’s recommendation was comprised as follows:
·8 hours per week for mobility for community access and travel;
·7 hours per week for self-care;
·3 hours per week to support TGJH with working from home.
The self-care component of Mr Mate’s recommendation was comprised of the following:
· Laundry and bed making – 1.5 hours
· Household cleaning – 2 hours
· Shopping – 2 hours
· Meal preparation- 2 hours
In his report, Mr Mate also recommended a number of other supports including;
· Mobile kitchen trolley;
· A manual wheelchair with power assist;
· Over recliner chair;
· Toilet seat bidet perching stool; and
· Utility chair with arms.
I will refer subsequently to Mr Mate’s oral evidence.
Evidence of Ms Miranda Bruyen,
Ms Bruyen is also an occupational therapist. She assessed TGJH on 27 November 2024. Ms Bruyen provided several reports to the Tribunal and oral evidence at the hearing. I am satisfied that Ms Bruyen’s evidence was honest and truthful and in accordance with her obligations as an expert witness.
In her most recent report, Ms Bruyen referred to the following:
TGJH is able to walk using two forearm crutches for 20-30 meters inside her apartment or at indoor venues. She is also able to use a powered wheelchair for longer distances, including settings outside the home;
TGJH experiences significant lymphoedema. This results in increased weight in her legs which decreases her functional capacity for putting on her shoes and dressing;
She has reduced balance, postural control and a history of falls;
She is unable to stand unaided without support of one elbow/forearm crutch;
She is unable to reach below her knee or above her head;
She has difficulties transferring from sitting to standing, particularly from low to high surfaces;
She has episodes of urinary incontinence and diarrhea. She also has difficulties managing perineal care due to problems with reaching and wiping;
She is able to manages transfers in and out of her stepless shower. She takes additional time to shower and utilises a shower chair. She is at risk of falls on slippery wet floors in her bathroom;
She prefers to shower when her support workers are present. Support workers will mop the bathroom floor after showering and also assist with setting up her clothing;
She is able to brush her own teeth but is unable to cut her own toenails;
She manages dressing but with additional time. She has difficulties dressing her lower limbs (including donning shoes) also donning/doffing her bra;
She has difficulties maintaining a healthy diet due to difficulties with physically setting up food;
She has reduced access to the community due to her physical impairments. She experiences social isolation due to fatigue, physical impairments and continence issues.
In conducting a functional assessment, Mr Bruyen also referred to the following;
TGJH uses a platform step with handrails to get in and out of bed;
She finds it difficult to open the front door to her apartment as it is heavy;
She finds it difficult to use scissors, a key in a door, turn doorknobs, open soft drink bottles and brush the back of her hair;
She is able to use public transport, including transferring in and out of a taxi, maxi taxi, trains and accessible trams;
She is able to do light dusting/wiping tasks within her reach, but does not have the physical capacity for vacuuming, mopping, scrubbing or sweeping;
Is unable to change bed linen or do laundry;
She is able to shop for small light weight groceries and relies on pre- prepared meals;
She would benefit from support coordination to set up a roster of her supports;
She is independent with her finances, making appointments, paying bills, planning and making decisions.
Ms Bruyen recommended SDA in a fully accessible, single occupancy, 2-bedroom dwelling. She explained that SDA would provide TGJH with larger circulation spaces, an accessible kitchen, accessible storage and additional bedroom/space. SDA would also improve her independence by:
· Enabling provision of an electronic adjustable bed to improve transfers;
· Enabling items to be more easily placed in the bathroom, kitchen, pantry and linen cupboard within reach at around waist height;
· Enabling more room for storage of larger AT items and clutter, reducing risk of trips and falls over items and allowing more room to use AT such as her Vela Tango Chair.
In addition to SDA, Ms Bruyen also made the following recommendations;
Wheelchair Charging Station (current residence) - estimated cost $800;
Bidet Toilet Seat and installation (future residence) - estimated cost $1,500 to $2,000;
Replacement Recliner chair- estimated cost $2,500;
Vascular Compression Pump;
Compression Stockings;
Electric Height Adjustable Bed and Mattress King Single (future residence) - estimated cost $6,000;
Exercise Physiology or Physiotherapy for fitness and conditioning;
Specialist Lymphoedema Support to prevent worsening of lymphoedema;
A vascular compression pump at home, to reduce need for regular weekly attendance and lymphoedema;
Occupational therapy trials for mobility devices and correct wheelchair prescription;
Occupational therapy training for support workers to encourage independence and participation during daily activities;
Level 3 transport assistance for shopping, medical appointments, therapy appointments, workplace visits when unable to use public transport;
Half price taxi vouchers from her General Practitioner;
Additional Social, Economic and Community Participation Support;
Daily core supports, morning and evening to assist with wearing vascular compression garments due to reduced capacity to reach to floor/toes and a Vascular Compression Pump;
Incontinence Nurse Assessment to assist with bowel and urine continence and suitable continence items including bedding;
A suitable Bidet solution and replacement of low cost portable bidet;
An over recliner table to assist with eating in her recliner;
67 hours of support worker assistance;
A further allowance for support to assist with toileting and self-care when in the community;
Concierge or on-call assistance overnight to assist with mobility from her bed to the toilet and also assistance with shower access in the event of overnight incontinence;
Occupational therapy to assist with exploring personal hygiene strategies and independence in self-care tasks;
Regular podiatry;
Dietician support;
Physiotherapy;
Mobile kitchen trolley; and
Cleaning and domestic assistance.
I will refer subsequently to Ms Bruyen’s oral evidence.
Subsection 34(1)(aa) NDIS Act
The supports sought must be necessary to address the needs of TGJH arising from the impairment in relation to which she meets the disability requirements?
TGJH was granted access to the scheme on the basis of meeting the disability requirements pursuant to subsection 24(1) of the NDIS Act.
In this regard, the Agency accepts that TGJH meets the disability requirements on the basis of a physical impairment due to cerebral palsy and a psychosocial impairment due to anxiety and depression.
Based on the evidence this is a reasonable and proper concession by the Agency.
For the purposes of subsection 34(1)(aa) of the NDIS Act, the supports sought by TGJH must therefore be necessary to address TGJH’s needs that arise as a result of her physical and psychosocial impairments.
SPECIALIST DISABILITY HOUSING
Eligibility under the SDA Rules
The SDA Rules provide the criteria that a participant must satisfy in order to be ‘eligible’ for SDA (the ‘eligibility criteria’).
Eligibility for SDA does not equate automatically with an ‘entitlement’ to receive funding for SDA under the scheme.
Satisfaction of the eligibility criteria has the effect of establishing only whether TGJH meets the required criteria in order to be ‘considered’ for SDA. As such, there still remains the additional mandatory requirement for a participant who has met the eligibility criteria to satisfy the mandatory criteria of subsection 34(1) of the NDIS Act.
SDA will therefore only be funded under the scheme in circumstances where a participant:
· Firstly, meets the eligibility requirements prescribed under Rule 11 of the SDA Rules, and
· Secondly, also meets the criteria prescribed by subsection 34(1) of the NDIS Act.
Section 11 of the SDA Rules prescribes the criteria for eligibility for SDA and provides as follows:
11 Eligibility to receive support for specialist disability accommodation.
A participant is eligible to receive support for specialist disability accommodation under the National Disability Insurance Scheme if the CEO is satisfied that:
(a) the participant:
(i) has an extreme functional impairment (see section 12); or
(ii) has very high support needs (see section 13); and
(b) the participant meets the SDA needs requirement (see section 14).Therefore, to meet the ‘eligibility requirements’ for SDA, the Tribunal must be satisfied that TGJH has either an ‘extreme functional impairment’[23] or a ‘very high support needs.’’[24] In addition the Tribunal must also be satisfied that TGJH meets the ‘SDA needs requirement’.[25]
[23] Rule 12, SDA Rules.
[24] Rule 13, SDA Rules.
[25] Rule 14, SDA Rules.
Rule 12 SDA Rules: Does TGJH have an extreme functional impairment?
Rule 12 of the SDA rules prescribes the criteria a participant must satisfy for the requirement of having an ‘extreme functional impairment’. It provides as follows:
(1) A participant has an extreme functional impairment if:
(a) the impairment results in extremely reduced functional capacity to
undertake, or psychosocial functioning in undertaking, one or more of the
following activities:(i) mobility;
(ii) self-care;
(iii) self-management; and(b) the participant has a very high need for person-to-person supports in undertaking the activity even with assistive technology, equipment or home modifications.
(2) For the purposes of assessing whether a participant has an extreme functional impairment, the CEO may have regard to:
(a) any assessment or examination conducted in relation to the participant,
including any assessment or examination requested by the CEO under paragraph 36(2)(b) or 50(2)(b) of the Act; and
(b) the daily support requirements of the participant; and
(c) any assessment tool specified by the CEO for the purposes of this paragraph; and
(d) any other matters that the CEO considers appropriate.Rule 12(1)(a) SDA Rules
The SDA operational guidelines describe self-care as ‘washing yourself, going to the toilet, getting dressed, eating, drinking, talking and taking medication’.
TGJH is incontinent on a daily basis despite her best efforts.
During waking hours TGJH regularly requires urgent toileting. She is regularly unable to independently get to a toilet ‘quickly’ and in time to avoid incontinence. Historically, she has had many accidents. Understandably, this is a source of embarrassment and significant concern to her.
When accessing the community, TGJH will starve and dehydrate herself to avoid having the need to use public toilet facilities.
Even when she is at home, it takes TGJH a long time to get to the toilet. Often, she will soil herself before she is able to reach the toilet and remove her clothing. For this reason, when alone in her apartment, she has resorted to not wearing clothes. This is so she can access the toilet, without the difficulty of having to remove clothing.
TGJH manage her incontinence by showering. To best manage her incontinence, she requires a shower at the least at the beginning and end of each day.
Showering, which necessarily involves dressing, undressing and getting in and out of the bathroom and the shower recess is an extremely difficult and time-consuming task for TGJH. Despite assistance from her carer, this process takes a significant amount of time.
TGJH has a history of falls, including in the shower and in the presence of a support worker. When she falls, and is unassisted, she must then, if she is able to, ‘drag’ herself along the floor out of the bathroom to request help. This takes a considerable amount of time. At times, she has waited many hours for assistance, lying on the floor, after a fall.
Understandably, TGJH is reluctant to shower without assistance. At the end of each day TGJH will remain in her soiled clothes until assistance can be provided when her support worker attends with her the next morning. If she soils herself further during the night, which often occurs, she is further impacted. This is an unacceptable circumstance.
TGJH struggles greatly with maintaining her balance. When in the shower, TGJH can only shower the upper part of her body. This is because she cannot reach down and also because of balance issues. Whilst she can to some extent shampoo her hair, she requires assistance from her support workers to remove the shampoo from the back of her head.
TGJH dresses her upper body but with increased time. She is unable to independently put on compressions stockings.
On the basis TGJH must mobilise with two forearm crutches she cannot carry items at the same time. Whilst using her crutches, she cannot transport hot food or drinks to a chair or table for consumption without risk. She, therefore, does not properly heat up food for her meals. For this reason, she has also ‘given up drinking coffee’.
She uses metal mugs and plastic plates for her food and drink. This is on the basis that if dropped they will not break.
She takes a number of medications which are managed through a dosette box. Her support worker assists with stocking her dosette box.
She is unable to inspect her feet for injury. Due to her CP, her gait is affected, and her toes and feet ‘drag’ on the floor when she walks. She is also unable to cut her toenails.
She is unable to do her own laundry. This includes her clothes which are regularly soiled due to spills. Also, her bedsheets are soiled due to incontinence on most days.
Conclusion
Based on the evidence, I am satisfied that TGJH’s impairment results in an extremely reduced functional capacity in relation to her self-care under Rule 12(1)(a) of the SDA rules.
Rule 12(1)(b) SDA Rules
Despite assistive technology, equipment and building modifications, TGJH still requires person-to-person support to undertake her self-care which includes showering, dressing, grooming, laundry, compression stockings, medication and meal preparation.
The Agency considers that 53 hours per week of person-to-person support worker assistance, augmented with the provision of a concierge support in SDA in the vicinity or 2.5 hours per day is a reasonable and necessary support for TGJH. Effectively, this equates to 10 hours per day of person-to-person supports for TGJH.
On this basis and for reasons also referred to in [75] to [89], I am satisfied that even with assistive technology, equipment or home modifications, TGJH has a very high need for person-to-person supports in undertaking her self-care. Rule 12(1)(b) of the SDA rules is therefore satisfied.
Conclusion
Having heard the evidence, the Agency accepts that TGJH satisfies Rule 12 of the SDA rules. Based on the evidence, I am satisfied that TGJH has an extreme functional impairment under Rule 12 of the SDA rules.
On the basis Rule 12 of the SDA Rules is satisfied, it not necessary to consider Rule 13 of the SDA rules which I also note is also conceded by the Agency.
Section 14 SDA Rules: Does TGJH meet the SDA ‘needs requirement’?
Rule 14 of the SDA Rules prescribes the criteria for satisfaction that TGJH has a ‘needs requirement’. Rule 14 provides as follows:
(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; an
(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.
The SDA operational guidelines state as follows:
We need to confirm specialist disability accommodation combined with your other supports will lead to better outcomes. For example, we look at whether it will:
·improve, maintain or prevent your functional capacity from getting worse
·reduce your future support needs
·create better connections with your family, community, health services, education, and employment’. (Tribunal emphasis)
Consideration of whether TGJH has an SDA ‘needs requirement’ requires firstly the identification of her ‘other supports’. Following identification of TGJH’s ‘other supports’ the Tribunal must compare of the benefits of SDA when combined with these ‘other supports’, against the benefits provided by ‘other supports’ in isolation.
This comparison specifically requires consideration of which of these two options would:
· better assist TGJH to pursue the goals, objectives and aspirations set out in her plan;
· be more effective and beneficial, where possible, in:
omitigating or alleviating the impact of TGJH’ impairment upon her functional capacity; and
opreventing the deterioration of TGJH’s functional capacity; and
oimproving TGJH functional capacity and
omaintaining or promoting TGJH’ ability to build capacity, including in the medium or long term; and
omaintaining or promoting TGJH’ opportunities to develop skills; and
·be more effective in providing TGJH with stability and continuity of support; and
·represent better value for money.
TGJH’s ‘other supports’
Supports’ are not defined in the NDIS Act. In McGarrigle, Mortimer J considered that the term ‘supports’ referred to both services and activities that assist a participant in the scheme in accordance with the principles to be applied under the NDIS Act.[26] Her Honour stated:[27]
‘The word “support” must be given a broad construction in this context, and there is no need for the purposes of this proceeding to seek to give it any comprehensive meaning. Rather, the point to be made is that it is a practical description of the means by which a person with disability is assisted. It is not intended, in my opinion, to encompass funding, especially because what s 14 contemplates is that the Agency will “fund” a support. The Agency cannot “fund” funding.’
[26] Sections 4(11) and 31, NDIS Act.
[27] McGarrigle at [88].
As a participant in the scheme, TGJH is funded for ‘formal supports’. These supports are specified and contained within his SOPS.
‘Supports’ may also include ‘informal supports’ that are not funded under the scheme. These may be supports or services provided by others, including family members or entities outside the scheme.
TGJH’ ‘other supports’ are therefore comprised of both formal and informal supports. Based on the evidence I am satisfied that TGJH’ ‘other supports’ are comprised of the following:
· Informal emotional and financial support from her mother;
· Informal emotional support from her friendship group;
· Formal support funded under the scheme, including transport and support worker assistance;
· Informal support from various employers;
· Physiotherapy and occupational therapy;
· Various equipment and assistive technology which include:
·A powered wheelchair;
·Shower stool;
·Vela tango chair;
·Step ramp with grab rail beside her bed.
Rule 14(1)(a) SDA Rules: Will the combination of SDA together with other supports better assist TGJH to pursue his goals, objectives and aspirations as compared to other supports alone?
One of TGJH’s goals is to:
‘locate, maintain, and live successfully and independently by myself in appropriate and accessible, safe, housing. Where I can still get assistance from support workers when needed and ultimately achieve more privacy and independence’
SDA in combination with the use of her forearm crutches, will enable TGJH to live successfully by herself in appropriate and safe housing. She will be able to receive concierge assistance, at times when her support workers are not present, to assist her with toileting and in the likelihood of a fall. Without SDA she will not have the ability to get assistance at all times when it is needed, particularly when toileting, showering and in the event of a fall.
The criteria under Rule 14(1)(a) of the SDA Rules is satisfied.
Rule 14(1)(b) SDA Rules: Will the combination of SDA together with other supports be more effective and beneficial for TGJH?
The combination of SDA and ‘other supports’ will be more effective and beneficial for TGJH. She will no longer have to remain soiled for lengthy periods, including overnight. She will be able to seek and receive assistance for toileting, showering and in the event of a fall, in a timely manner, as and when it is necessary. This will assist with maintaining her overall health and her hygiene. It will also prevent unnecessary embarrassment and support her dignity.
The criteria under Rule 14(1)(b) of the SDA Rules is satisfied.
Rule 14(1)(d) SDA Rules: Will the combination of SDA together with other supports be more effective in providing TGJH with stability and continuity of support?
I am satisfied that SDA in combination with his other supports will be more effective in providing TGJH with stability and continuity of supports.
With the provision of SDA, TGJH will have the security of long-term accommodation tailored to meet her current and future disability needs. Her support workers have an appropriate and safe workplace environment. Such an environment will be beneficial to TGJH’s ability to source and retain support workers in the long term. This aspect will be effective in providing TGJH with stability and continuity of supports.
The criteria under Rule 14(1)(d) of the SDA Rules is satisfied.
Rule 14(1)(e) SDA Rules: Does the combination of SDA together with other supports represent better value for money than other supports alone?
SDA will provide TGJH with the certainty of having accommodation that will meet her current and future disability needs. Should her mobility further decline, or her needs increase she will not have to relocate and incur relocation expenses.
I am satisfied that TGJH wishes to be as independent as possible and that she makes every effort to limit the assistance that she requires. Concierge services will avoid lengthy delays in receiving assistance with urgent toileting and showering. They will also ensure timely assistance in the event of a fall. This aspect will avoid adverse health outcomes and the associated expenses. It will also improve TGJH’s lived experience, preserve her dignity and be of long-term benefit to her.
The criteria under Rule 14(1)(e) of the SDA Rules is satisfied.
Conclusion
In closing submissions and having heard the oral evidence the Agency submitted that SDA was a reasonable and necessary support for TGJH in the following form:
·SDA Building Type: one bedroom, one resident, with unplanned on-site shared support in an SDA;
·Design Category: Fully accessible.
As a consequence of TGJH’s impairments, based on the above evidence, I am satisfied that TGJH meets the criteria under Rule 11 of the SDA Rules and is ‘eligible’ for SDA.
I do not, however, consider that a two-bedroom apartment is a reasonable and necessary support for TGJH[28]. My consideration on this aspect relies on the importance and need to ensure the financial sustainability of the scheme. [29]
[28] Rule 16 SDA Rules.
[29] Section 3(3)(b) NDIS Act.
Despite eligibility for SDA, SDA must be a reasonable and necessary support for TGJH pursuant to section 34(1) of the NDIS Act.
Based on the evidence, I am also satisfied that SDA is a proper and reasonable support for TGJH.[30] The Agency’s concession in this regard is also reasonable and proper.
[30] Section 34(!) NDIS Act
Conclusion
I am therefore satisfied that TGJH meets the eligibility requirements under the SDA Rules and the requirements of section 34(1) of the NDIS Act.
The funding for the following SDA is a ‘reasonable and necessary’ support for the purposes of subsection 34(1) of the NDIS Act should be included in TGJH’s SOPS:
·SDA Building Type: one bedroom, one resident, with unplanned on-site shared support in an SDA
·Design Category: Fully accessible
SUPPORT WORKER ASSISTANCE
TGJH is currently funded for 17 hours per week of support worker assistance.
TGJH seeks 67 hours per week of support worker assistance. She relies on the report of Ms Bruyen, which recommends 67 hours per week, comprised of the following weekly components:
· 28 hours for personal activities (mornings and evenings for personal care for showering, dressing, applying compression garments);
· 2 hours for domestic cleaning (domestic cleaning, mopping, vacuuming, dusting);
· 6 hours for shopping, meal preparation assistance (including shopping lists; meal planning, preparation for lunches and bulk cooking sessions for meals)
· 7 hours for support needs (laundry, bed making tidying, removing clutter, set up for dressing and activities);
· 8 hours for social and economic participation supports (personal care supports in the community, assist with mobility and access, assist with self-care(adjusting clothing and toilet assistance), transport, applied including nights and on weekends;
· 16 hours for maintaining and keeping a job.[31]
[31] Applicant’s BOD 225 – 226.
TGJH acknowledges that Ms Bruyen’s recommendation of 16 hours per week to assist her with maintaining and keeping a job could include a level of ‘multitasking’ by her support worker with other tasks such as cleaning and laundry.
In her oral evidence, Ms Bruyen was asked to reconsider her recommendation in light of TGJH being funded for SDA accommodation which would include unplanned onsite concierge services in the vicinity of 2.5 hours per day. Ms Bruyen’s oral evidence can be summarised as follows:
· Her recommendation of 28 hours for daily personal activities equated to 2 hours each morning and 2 hours each evening. This recommendation was made, in part, on the basis that the award rates for support workers required a minimum of two hours per service.
· In the context of TGJH living in SDA, with onsite concierge service and also receiving physiotherapy for her lymphedema and continence supports, her estimation for daily personal activities could be reduced to 2 hours per day. This would equate to an allowance of 14 hours per weeks for daily personal activities.
· In relation to her estimation of 16 hours for maintaining and keeping a job and in the context of TGJH working from home one day a week, she agreed there was a potential for an overlap of supports. This was such that other meaningful tasks including laundry, cleaning, meal preparation and daily personal activities could also be undertaken by a support worker on the day that TGJH worked from home.
· She also agreed that in an SDA environment, TGJH would be able to do online grocery shopping. This was because with concierge assistance, her groceries would be ‘carried’ into her apartment with assistance putting these groceries away. Also, that in SDA, TGJH would have a fully accessible kitchen with a modified bench space which would improve her ability to independently prepare food and heat up prepared food.
· In conclusion, Ms Bruyen revised her recommendation to 53 hours of support workers assistance for TGJH as a reasonable and necessary support.
In his oral evidence, Mr Mate was also to reconsider his recommendation of 18-22 hours of support worker assistance in light of TGJH being funded for SDA accommodation with concierge services. Ms Mate’s oral evidence can be summarised as follows;
His recommendation only included an allowance for showering on the 2 days when TGJH was working;
Hi recommendation did not include support with showering on the days TGJH did not work;
That considering TGJH wished to shower in the morning and the evening and also considering the likely time for the task of showering, drying, dressing, undressing and compression stockings, an allowance of 14 hours per week was reasonable.
Ms Katherine Inglis, occupational therapist provided a report on 12 July 2023.[32] Summarised Ms Inglis’ opinion is as follows:
· The flooring in the bathroom of TGJH’s apartment is slippery. Historically TGJH had fallen and hit her head after showering;
· CP negatively impacts TGJH’s balance and this triggers her falling; and
· Showering is TGJH’s most difficult personal care task.
[32] Applicant’s BOD 1.
Having heard the evidence, the Agency submits that 53 hours of support worker assistance is a reasonable and necessary support for TGJH. The Agency’s submission is accepted on the basis of the following;
· The opinion and recommendation of Ms Bruyen was persuasive;
· I am satisfied that TGJH requires assistance from a support worker with showering due to her mobility and balancing difficulties, and also to minimise her risk of falls;
· I also accept that TGJH must shower twice a day to manage her incontinence and this is fundamental to maintaining her dignity;
· Mr Mate’s recommendation in his report provided an insufficient allowance for the support TGJH requires on a daily basis for her self-care which includes showering and the wearing of compression stockings.
· Mr Mate’s appropriate reconsideration of his recommendation on the basis of further information in respect of TGJH reinforced the opinion of Ms Bruyen.
Conclusion
The funding of 53 hours per week for support worker assistance is a ‘reasonable and necessary’ support for the purposes of subsection 34(1) of the NDIS Act should be included in TGJH’s SOPS.
OCCUPATIONAL THERAPY
TGJH is currently funded for 52 hours per year of occupational therapy. Generally, she has occupational therapy fortnightly.
TGJH is seeking 102 hours of occupational therapy per year[33] and refers to the recommendation of Ms Bruyen.[34]
[33] Applicant’s SFIC [7].
[34] Applicant’s BOD page 226.
In her oral evidence, TGJH explained that she would like further funding for occupational therapy so that she can work on strategies to avoid falls.
Ms Bruyen’s evidence was persuasive. Under cross examination when asked whether her opinion remained the same on the basis TGJH was funded for SDA, Ms Bruyen stated as follows;
‘In my experience with assisting someone to transition to SDA that there is a need for occupational therapy to help with that transition to help train and support, support workers’
Ms Bruyen explained that with a transition to SDA, training and support would be needed in respect of many matters including the various assisted technologies such as the bidet, the electric bed, home automation, wheelchair charging station and other mobility devices. She also identified the need for support in the context of TGJH living in a new geographical location and the associated issues in learning how to access a new community from her new home.
Ms Bruyen explained her recommendation not only included training, but it also included report writing, a wheelchair prescription, liaising with suppliers and obtaining quotes for equipment and the supply of products such as continence items. It also included an initial assessment of the SDA chosen for TGJH in regard to any further assistive requirements that needed to be addressed. She stated, ‘a transition to SDA means that often other items might be required or considered for people’ and ‘it would be my opinion that you would need an increased support for a period of transition and then that need would drop off or change should there be no other equipment required’.
Ms Bruyen explained her recommendation of 102 hours was comprised of the following components:
· 72 hours from an occupational therapist; and
· 30 hours of complimentary services from an allied health assistant.
Ms Bruyen explained that an allied health assistant could provide services at a lower cost than occupational therapist. These services included connecting with suppliers, seeking quotes, liaising with the delivery of assistive technology, setting up and preparing training materials and providing support as directed by the occupational therapist.
Having heard the evidence, the Agency submits that Ms Bruyen’s recommendation is a reasonable and necessary support for TGJH. I consider that the Agency’s concession is reasonable and proper. I accept that TGJH will require an intensive level of occupational therapy supports with her transition to the SDA. This support relates not only to a new living environment but also in relation to a new geographical location.
Conclusion
The funding of 102 hours of occupational therapy comprised of 72 hours from an occupational therapist and 30 hours of complimentary services from an allied health assistant is a ‘reasonable and necessary’ support for the purposes of subsection 34(1) of the NDIS Act should be included in TGJH’ SOPS.
EXERCISE PHYSIOLOGY
TGJH seeks 80 hours of exercise physiology per year comprising of 20 hours of exercise physiology and 60 hours of allied health assistance.[35]
[35] Applicant’s SFIC [7]
Mr Ciaran Rayment provided two reports on 10 January 2022 and 28 June 2023. He recommended 60 x 1 hour sessions (plus travel and writing time) to improve the TGJH’ cardiovascular fitness, continue strengthening her lower body and core to reduce falls risk, and further improve her standing tolerance to facilitate maintaining independence.[36]
[36] T5, Applicant’s BOD page 33
The Agency submits that the evidence establishes that TGJH continues to experience reduced muscle strength and conditioning, fatigue, reduced capacity for community access and is at risk of falls. On this basis, the Agency accepts that the exercise physiology and allied health assistance sought is a reasonable and necessary support for TGJH.
At the commencement of the hearing, the parties advised that this support had been resolved on the basis of funding as follows:
· 20 hours of exercise physiology; and
· 60 hours of complimentary services from an allied health assistant.
Based on the evidence, I consider that the Agency’s concession is reasonable and proper.
Conclusion
The funding of 80 hours of exercise physiology comprised of 20 hours from an exercise physiologist and 20 hours of complimentary services from an allied health assistant is a ‘reasonable and necessary’ support for the purposes of subsection 34(1) of the NDIS Act should be included in TGJH’ SOPS.
SPECIALIST PHYSIOTHERAPY
TGJH is seeking 30 hours of specialist physiotherapy to manage her lymphoedema and her functional impairments as a consequence of this condition.[37] TGJH relies on the recommendation of Ms Bruyen. TGJH explained that her current physiotherapy treatment focussed on building her muscle strength to assist with her mobility. She seeks further funding for physiotherapy treatment to help manage her lymphoedema. She also stated that her current physiotherapist is trained in this specialist area and could provide this treatment.
[37] Applicant’s SFIC [7]
In her oral evidence, Ms Bruyen explained that this type of specialist physiotherapy differed from the current physiotherapy Ms Mark received, which was for management of her physical strength and mobility and not her lymphoedema. Her expectation is that given lymphoedema is a chronic condition, TGJH would require this type of ongoing specialist physiotherapy in the future.
The Agency submits that in the absence of a report from a physiotherapist in respect of the nature and necessity for this treatment, the Tribunal cannot be positively satisfied that this is a reasonable and necessary support for TGJH.
The Agency’s submission is accepted.
It is open to TGJH to obtain and provide such a report to the Agency for consideration. Once such a report is obtained, pursuant to s48 of the NDIS Act, TGJH can then seek a reassessment of her plan with a request for the inclusion specialist physiotherapy in her SOPS. Likewise, the Agency can, of its own initiative re-assess TGJH’s plan on the basis of any recommendation.
Conclusion
The funding of 30 hours from a specialist lymphoedema physiotherapist is not a ‘reasonable and necessary’ support for the purposes of subsection 34(1) of the NDIS Act should not be included in TGJH’s SOPS.
INCONTINENCE NURSE
TGJH is seeking 15 hours per year with an incontinence nurse for an assessment and advice.[38] The purpose of this support is to address her urinary and bowel incontinence. TGJH relies on the recommendation of Ms Bruyen of 15 hours per year for an assessment and report.
[38] Applicant’s SFIC [7].
The Agency proposes what I consider is a commonsense and sensible approach for the funding of a 5-hour continence assessment as a reasonable and necessary support. Such an assessment will provide an understanding of TGJH’s continence needs with a recommendation of a continence package. Pursuant to s48 of the NDIS Act, and on the basis of any recommendation, TGJH can then seek a reassessment of her plan with a request for the inclusion of continence supports in her SOPS. Likewise, the Agency can, of its own initiative re-assess TGJH plan on the basis of this assessment.
Conclusion
The funding of a 5-hour continence assessment is a ‘reasonable and necessary’ support for the purposes of subsection 34(1) of the NDIS Act should be included in TGJH’s SOPS.
CONTINENCE ITEMS
TGJH seeks funding of $2,500.00 for continence items as a reasonable and necessary support. As referred to above, a continence assessment will include a recommendation for continence items a reasonable and necessary support. Such a request can then be pursued package by TGJH pursuant to s48 of the NDIS Act. Likewise, the Agency can, of its own initiative re-assess TGJH’s plan for inclusion of these items in her SOPS.
PODIATRY
TGJH is seeking 8 hours of podiatry per year and relies on Ms Bruyen’s report.[39]
[39] Ibid.
TGJH’s balance, lymphoedema and general mobility affect her ability to bend and cut her own toenails. TGJH explains that she cannot see her feet or bend over to cut her toenails. Generally, she will wait until ‘bits’ of her toenails break off. Due to her altered gait as a result of her CP, her feet and toes drag along the floor when she mobilises. TGJH explained that podiatry is required for a service that goes ‘beyond toenail cutting’. Podiatry is sought not just for the cutting of her toenails but also for an inspection of her feet in respect of their integrity and any other issues.
Item 14 of Schedule 1 to the Transitional Rules provides that daily personal activities are a NDIS support, unless otherwise provided for the purposes of section 10 of the NDIS Act, and states as follows:
Supports that provide supervision or assistance with personal daily living tasks to help a participant to live as independently as possible in their own home and in the community.
This includes the following:
(a) assistance with eating and drinking, dressing and toileting;
(d) maintaining personal hygiene, including showering, bathing, hair washing and drying, fingernail and toenail cutting and cleaning.
Item 16 of Schedule 1 to the Transitional Rules provides that the following disability related health supports are a NDIS support, unless otherwise provided for the purposes of section 10 of the NDIS Act, and states as follows:
Health supports that relate to the functional impact of a participant’s disability.
This includes the following:
(a) supports, services and assistive products
to manage dysphagia, diabetes,
continence, wound and pressure care,
respiration, nutrition, podiatry and foot care, and seizures; (Tribunal emphasis)Having heard the evidence, the Agency accepts that 8 hours of podiatry is a reasonable and necessary support. This is a reasonable and proper concession. Based on the evidence, I am satisfied that 8 hours of podiatry is a reasonable and necessary support for TGJH.
Conclusion
The funding for 8 hours of podiatry is a ‘reasonable and necessary’ support for the purposes of subsection 34(1) of the NDIS Act should be included in TGJH’s SOPS
SUPPORT COORDINATION
TGJH is currently funded for 48 hours per year (four hours per month) of level two support coordination.
TGJH seeks 72 hours per year for support coordination which is an increase of 24 hours per year.[40] TGJH relies on the recommendation of Ms Bruyen of 72 hours per year to assist with home and living applications, housing support, coordination of therapies and SDA/housing transition.
[40] Ibid.
In her oral evidence, Ms Bruyen again referred to an ‘intensive period’ of support coordination on the basis of TGJH’s transition to SDA. This includes navigating the NDIS systems and ensuring that all supports are correctly aligned with the NDIS systems. In this regard, she referred to the need to navigate signed service agreements that are relevant to SDA accommodation. She explained that this level could be reviewed once TGJH is established and comfortable and has engaged regular relationships with her support workers and other support services
TGJH explained that her needs have changed as she has become older, and she would like additional support coordination to explore other and different supports. These supports include sports, gyms, allied health assistance, other forms of assistive equipment and guidance with submitting paperwork with the Agency. TGJH explained that she is very keen to identify more ‘age-appropriate’ supports and that she wants to do more physical activity to improve her health.
Having heard the evidence, the Agency accepts that 72 hours of support coordination is a reasonable and necessary support. This is a reasonable and proper concession. Based on the evidence, I am satisfied that 72 hours of support coordination is a reasonable and necessary support for TGJH.
Conclusion
The funding of 72 hours of support coordination is a ‘reasonable and necessary’ support for the purposes of subsection 34(1) of the NDIS Act should be included in TGJH’s SOPS
BIDET TOILET SEAT
The Agency agrees to fund a bidet toilet seat as a reasonable and necessary support subject TGJH providing a quotation. Based on the evidence, this is a reasonable and proper concession.
REPLACEMENT ELECTRIC LIFT RECLINER CHAIR
The Agency agrees to fund a replacement electric lift recliner chair in the sum of $4,163.50 as a reasonable and necessary support subject. Based on the evidence this is a reasonable and proper concession.
MANUAL WHEELCHAIR WITH POWER ASSIST
The Agency agrees to fund a manual wheelchair with power assist as a reasonable and necessary support subject to a quotation. Based on the evidence, this is a reasonable and proper concession.
OVER TABLE CHAIR
The Agency agrees to fund an over chair table as a reasonable and necessary support subject to a quotation. Based on the evidence this is a reasonable and proper concession.
WHEELCHAIR CHARGING STATION
TGJH explained that currently her wheelchair is charged using a charger that resembles a cigarette lighter charger. She was, however, unable to explain the recommendation made by Ms Bruyen for a ‘wheelchair charging station’.
Ms Bruyen recommends a wheelchair charging station at a cost of $749.00. In her oral evidence, Ms Bruyen explained that it was unlikely a wheel charging station would be included in any SDA accommodation, however, she could not be certain. She explained that it was a wall mounted device that allowed a wheelchair to be easily attached at a suitable height and within easy reach. She advised it provided a greater level of charging, presumably so that a wheelchair could be used for longer periods. She compared this device to the ‘cigarette’ type charger currently used which was plugged into a power output generally lower down the wall and not easily reached. She described a wheelchair charging station as being ‘about accessibility’.
Ms Bruyen explained that this device was adaptable to other wheelchairs that TGJH may use in the future. It could also be used to charge the Vela Tango chair that TGJH currently uses.
The Agency accepts that whilst a wheelchair charging station could be a reasonably necessary support for TGJH, it was not possible for the Tribunal to make a determination in relation to this support, in the absence it did not already form part of TGJH’s SDA.
The Agency’s submission makes sense. Until TGJH is transitioned to SDA, she cannot be sure whether this equipment will be already ‘in situ or available’ for communal use in the SDA In the event that her SDA does not have a wheelchair charging station in place pursuant to s48 of the NDIS Act, TGJH can seek a reassessment of her plan with a request for the inclusion of a wheelchair charging station in her SOPS. Likewise, the Agency can, of its own initiative re-assess TGJH plan and fund this equipment.
ELECTRIC BED
The Agency agrees to fund an electric bed as a reasonable and necessary support subject to a quotation. Based on the evidence, this is a reasonable and proper concession.
COMPRESSION STOCKINGS AND VASCULAR COMPRESSION PUMP.
Ms Bruyen recommends that TGJH commence regular treatment with a Lymphoedema clinic, that she wear custom made compression stocking 12-18 hours each day and also use a vascular pump.
Having heard the evidence, the Agency accepts ‘in principle’ that these are reasonable and necessary supports. The Agency, however, requests a report from a suitably qualified expert in relation to the costs of these support. This approach seems reasonable and necessary in order for the Tribunal to be positively satisfied. TGJH indicated she was also content with this approach. Once TGJH provides the Agency with the appropriate recommendation and quote, her SOPS can be varied pursuant to section 48 of the NDIS Act as previously referred to. Likewise, the Agency can, of its own initiative re-assess TGJH plan and fund these supports.
INDEE FLOOR LIFT
TGJH refers to the recommendation for an Indee floor lift by Ms Bruyen in the sum of $4,597.00. To date, TGJH has not trialled this lift. She explained that she would be unable to operate this lift. Further, it was proposed as a piece of equipment that others could operate to assist her, to and from standing to sitting positions and in the event of a fall.
TGJH is to be funded for SDA. Her chosen SDA may or may not already have an Indee floor lift. In the event that her SDA does not have an Indee floor lift, TGJH can seek a reassessment of her plan with a request for the inclusion of an Indee floor lift in her SOPS pursuant to s48 of the NDIS Act. Likewise, the Agency can, of its own initiative re-assess TGJH plan and fund this equipment.
LEVEL 3 TRANSPORT.
TGJH seeks level 3 transport and relies on the recommendation of Ms Bruyen.
The Agency advised that TGJH is already funded for level three transport in her SOPS.
PSYCHOLOGY
TGJH seeks funding for 26 hours of psychology per year in accordance with the recommendation of Ms Bruyen,
Currently TGJH is funded for 12 sessions of psychology per year.
The Agency submits that the Tribunal cannot be satisfied that funding for this level of psychology is a reasonable and necessary support in the absence from a report from a psychologist.
The Agency’s submission is accepted. In the absence of a report or any expert evidence from a psychologist, I am unable to be positively satisfied that an extra 14 hours of psychology is a reasonable and necessary support for TGJH.
Decision
Pursuant to subsection 105(c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with a direction:
1.that within 28 days of this decision TGJH’s statement of participant supports specifies the following supports:
(i)Specialist Disability Accommodation
oBuilding Type: one bedroom, one resident, with unplanned on-site shared support in an SDA
oDesign Category: Fully accessible.
(ii)53 hours per week for support worker assistance.
(iii)102 hours of occupational therapy comprised of:
o72 hours from an occupational therapist; and
o30 hours of complimentary services from an allied health assistant.
(iv)80 hours of exercise physiology comprised of:
o20 hours from an exercise physiologist; and
o20 hours of complimentary services from an allied health assistant
(v)5 hours continence assessment.
(vi)8 hours of podiatry.
(vii)72 hours of support coordination.
(viii)Bidet toilet seat subject of a quotation provided by TGJH.
(ix)Replacement electric lift recliner chair in the sum of $4,163.50.
(x)Manual wheelchair with power assist subject to a quotation provided by TGJH.
(xi)Over table chair subject to a quotation provided by TGJH.
(xii)Electric bed subject to a quotation provided by TGJH.
2.The date by which the Agency must reassess TGJH’s plan is to be 12 months after the date on which the supports in (1) above are included in TGJH’s statement of participant supports;
3.All other supports in TGJH’s existing statement of participant supports are to be replicated pro-rata from the date of this decision until the reassessment date.
I certify that the preceding 188 (one hundred and eighty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins.
...........[SGD]...........
Associate
5 June 2025
Date(s) of hearing: 7, 8 and 9 May 2025 Applicant: TGJH Solicitors for the Respondent:
Counsel for the Respondent:
Minter Ellison
Ms Fiona Batten
- AGLC
- TGJH and National Disability Insurance Agency (NDIS) [2025] ARTA 1013
- Case
- [2025] ARTA 1013
- Decision Date
CaseChat Overview and Summary
The primary legal issues concerned the interpretation of "reasonable and necessary supports" under section 34 of the National Disability Insurance Scheme Act 2013 (Cth). The Tribunal was tasked with determining whether the requested supports met the criteria of being both "reasonable" and "necessary" for TGJH, considering her specific disabilities and circumstances. The Tribunal also needed to assess the appropriateness of the requested supports in light of the legislative framework, including the recent amendments introduced by the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024.
The Tribunal reviewed the evidence presented by TGJH, which detailed her disabilities, living conditions, and the difficulties she faced in daily activities. The Tribunal acknowledged the complexity of TGJH's case and the specific needs arising from her cerebral palsy, tachycardia, lymphoedema, anxiety, depression, and attention deficit hyperactivity disorder. The Tribunal highlighted the importance of ensuring that the requested supports would effectively assist TGJH in achieving her goals and aspirations as outlined in her statement of goals and aspirations. After careful consideration, the Tribunal concluded that the decision should be remitted back to the NDIA for reconsideration in light of the new legislative amendments and to ensure a thorough evaluation of the supports in line with the statutory criteria.
The Tribunal ordered that the decision be remitted to the NDIA for reconsideration, ensuring that all relevant factors and the updated legislative framework are taken into account.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Full Court in National Disability Insurance Agency v WRMF[11] also considered the meaning of reasonable and necessary supports, and stated as follows [149]-[151]:The phrase is a composite phrase. We accept the Agency's submissions that 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 CLR 532 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)[11] National Disability Insurance Agency v WRMF [2020] FCAFC 79 (‘WRMF’).OPERATIONAL GUIDELINES The Agency issues Operational Guidelines in relation to what are considered ‘reasonable and necessary supports’ in a participant’s plan. There is no power conferred by the Act to make these Operational Guidelines, and they are issued in an exercise of executive power.[12] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines. However, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[13] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[14] where Mortimer J held:[15]Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it.[12] Minister for Home AffairsvG [2019] FCAFC 79 at [18].[13] [1979] AATA 179 (1979); 2 ALD 634.[14] [2018] FCA 1229.[15] Ibid at [171].