Turner and National Disability Insurance Agency (NDIS)
[2025] ARTA 1796
•12 March 2025
Turner and National Disability Insurance Agency (NDIS) [2025] ARTA 1796 (12 March 2025)
Applicant/s: Mr Jamie Turner
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/8874
Tribunal:General Member Gooch
Place: Adelaide
Date:12 March 2025
Decision: The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Act 2024.
Statement made on 31 March 2025 at 2:40pm
General Member Gooch
Catchwords
National Disability Insurance Scheme – reviewable decision of CEO – Statement of Participant Supports – reasonable and necessary supports – addressing a need arising from an impairment for which access requirements met – Getting the NDIS Back on Track Transitional Support rules – NDIS supports – sporting memberships – decision affirmed
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Schedule 16, item 24.
National Disability Insurance Scheme Act 2013 (Cth), ss 3, 4, 24, 25, 33, 34, 35
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 Items 129 of Schedule 1
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth); rr 3.1, 3.2, 3.3, 3.4, 3.5, 3.6. 3.7
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 Schedule 2
Cases
Drake and Minister for Immigration and Ethnic Affairs (No. 2) 1979 2 ALD 634
McGaughlin and NDIA [2021] AATA 496
Secondary Materials
NDIS Operational Guidelines - Reasonable and Necessary Supports, dated 28 March 2025.
REASONS FOR DECISION
Mr Turner is a 56-year-old man who was granted access to the National Disability Insurance Scheme (the Scheme) in 2022 on the basis of physical impairments.
Mr Turner comes to the Tribunal for review of a decision by the National Disability Insurance Agency (the Agency) to approve a new statement of participant supports (NDIS plan) for him. Mr Turner asserts this NDIS plan did not include funding he relied on to meet one of his goals.
This decision was subject to internal review by the Agency and affirmed on 31 October 2023 (the decision under review).
A hearing of the matter by the Tribunal took place on 12 March 2025 by MS Teams and phone.
Mr Turner gave evidence at the hearing under affirmation. No other witnesses attended.
A Joint Tender Bundle filed by the Agency was not formally accepted into evidence at hearing but is now so accepted and marked Exhibit 1.
THE POSITIONS OF THE PARTIES
It is Mr Turner’s contention that the decision under review is wrong because it resulted in all funding for his golfing activities being removed. The specific funding he seeks to have incorporated in his plan includes:
a. $4,950 for annual golf membership fees; and
b. $800 for annual golf cart costs. (the Requested Supports)
Mr Turner advised that he has had funding for these costs in previous plans and he does not understand why they have now been removed. He argues his primary motivation in accessing the NDIS was to obtain support to allow him to participate in recreational golfing activities.
The Agency’s position is that the issue before the Tribunal involves a discrete legal point not amenable to compromise. It argues that the Requested Supports are not, and never have been, supports that could be funded as reasonable and necessary supports under an NDIS plan. Although funding had previously been utilised to fund golfing activities, this had been in error and had been addressed with Mr Turner.
The Agency also argued that recent amendments to the National Disability Insurance Act 2013 (NDIS Act) and Rules (the Rules) now explicitly bar the use of NDIS expenditure on items such as the Requested Supports.
LEGISLATION RELEVANT TO THIS REVIEW
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (the Amending Act) commenced on 3 October 2024.
Subitem 129 provides that sections 33, 34 and 35 of the National Disability Insurance Scheme Act 2013 as in force on and after the commencement of the Amending Act apply in relation to a statement of participant supports approved or varied on or after that commencement date.
By this subitem, any review by the Tribunal which results in a variation of Mr Turner’s plan would require the Tribunal to apply the relevant sections as amended by the Amending Act.
Section 33(5) of the NDIS Act provides that in approving a statement of participant supports, the decision maker (the CEO, a delegate or the Tribunal) must apply the National Disability Insurance Scheme Rules (if any) made for the purpose of section 35.
The statutory provisions relevant to this review are therefore:
a. the Administrative Review Tribunal Act 2024 (‘the ART Act’),
b. the National Disability Insurance Scheme Act 2013 (‘the NDIS Act’) (as amended),
c. the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules); and
d. the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (the Transitional Rules).
The Agency also issues Operational Guidelines to assist staff in the administration of the NDIS Act. These are policy documents without legislative force. The guidelines relevant to this review are the NDIS Operational Guidelines - Reasonable and Necessary Supports (‘the Support Guidelines’).
The Tribunal is not bound to follow these Guidelines and will not do so where they are inconsistent with the NDIS Act. However, in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2)[1] the Federal Court held that a Tribunal should take into account relevant government policy where it is not inconsistent with the provisions or objects of the legislation. Therefore, to the extent that they are relevant to this review and not inconsistent with the legislation, the Tribunal will have regard to the Support Guidelines.
[1] Drake v Minister for Immigration and Ethnic Affairs, (1979) 24 ALR 577 at 590
THE TRIBUNAL’S JURISDICTION
Having regard to the decision under review, the relevant sections of the NDIS Act (sections 99, 100 and 103) and Section 12 of the ART Act, I am satisfied the Tribunal has the appropriate jurisdiction to review this decision.
ISSUE BEFORE THE TRIBUNAL
The issue for determination by the Tribunal is whether the requested supports should be included in Mr Turner’s NDIS plan. This will require the Tribunal to determine:
a. Whether the Requested Supports are reasonable and necessary supports for the purposes of the NDIS Act; and
b. Having regard to the Amending Act, whether the Requested Supports are NDIS supports.
REASONABLE AND NECESSARY SUPPORTS
The NDIS Scheme was established with the commencement of the NDIS Act.
Section 3 of that Act sets out the objectives of the Scheme which (in addition to other objectives) include:
a. Supporting the independence and social and economic participation of people with disability;
b. Providing reasonable and necessary supports, including early intervention supports, for participants in the Scheme;
c. Enabling people with a disability to exercise choice and control in the pursuit of their goals;
d. Developing a nationally consistent approach to access to and planning and funding of supports for people with a disability and
e. Giving effect to Australia’s obligations under a number of accepted Conventions.
General principles to guide actions under the Act are set out in Section 4 and relevantly include (at subsection 11):
‘Reasonable and necessary supports for people with disability should:
(a) Support people with disability to pursue their goals and maximise their independence; and
(b) Support people with disability to live independently and to be included in the community as fully participating citizens; and
(c) Develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and employment.
Both the objectives and the principles require that in giving effect to these matters regard is to be had to the need to ensure the financial viability of the Scheme.
The Scheme is avowedly participant focussed within the constraints set by Parliament.
Part 2 of Chapter 3 of the NDIS deals with matters relevant to preparation of participants’ plans.
Section 31 sets out the principles underpinning the preparation of plans, including that so far as reasonably practicable, funding for supports should be individualised, directed by the participant and (among other things) advance the inclusion and participation of the participant to achieve his or her individual aspirations.
Section 33(2) provides that a participant’s plan must include a statement prepared with the participant and approved by the CEO that specifies:
a. general supports (if any) that will be provided to, or in relation to, the participant:
b. reasonable and necessary supports (if any) that will be funded under the NDIS,
c. when the plan must be reassessed; and
d. management of that funding for supports under the plan.
In McGaughlin and NDIA[2] Deputy President Humphries held that this section provided for a residual discretion by the decision maker to determine that a support which otherwise satisfies the ’reasonable and necessary’ criteria in s 34(1) may nonetheless not be funded.
[2] [2021] AATA 496
Section 33(5) requires the Support Rules must be applied in making this determination and the Deputy President held that their application to the section 33 discretion meant concerns otherwise held about the validity of the Support Rules (due to impermissibly restricting the purposes of the Act) could be avoided.
For the purpose of specifying supports in a statement of participant supports, section 34 of the NDIS Act sets out the mandatory criteria, all of which a decision maker (CEO, a delegate or the Tribunal) must be satisfied of before ‘reasonable and necessary supports’ can be included. These criteria include that:
(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 or early intervention requirements (Access criteria);
(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.
The Notes to the section provide that the time at which the disability requirements must be met for the purpose of this section is the time a decision maker decides to approve the statement of participant supports.[3]
[3] Note (a) section 34 of the NDIS Act
Note (b) to this section recognises that a participant’s disability support needs for a relevant impairment may be affected by a variety of factors, including the impact of other impairments in relation to which the participant does not meet the access criteria.
THE TRIBUNAL’S ROLE
When the Tribunal conducts a review of an Agency decision the Tribunal is to ‘stand in the shoes’ of the Agency and to reconsider the decision in light of all evidence before it, including evidence that was not before the original decision maker.[4]
[4] Drake v Minister for Immigration and Ethnic Affairs, (1979) 24 ALR 577 at 589,
It is therefore the Tribunal which must now reach the necessary state of positive satisfaction that the relevant requirements in section 34 are met and the manner in which any discretion in section 33 should be applied.
ARE THE REQUESTED SUPPORTS ‘REASONABLE AND NECESSARY’?
Section 34(1)(aa) – the support is necessary to address needs arising from an impairment in relation to which the participant meets the disability requirements. The time for consideration of whether the disability requirements are met is the time of approval of supports.
What are the relevant impairments that meet the disability requirements?
The Agency advised the Tribunal that Mr Turner gained access to the Scheme for a physical impairment arising from congenital bilateral dysplastic humeri. This condition resulted in severe arthritic changes in Mr Turner’s shoulders and severe limits on his range of motion, strength and function of the upper limbs.[5]
[5] A1 [10], [12]
Mr Turner is also noted to have multiple lower limb conditions which result in reduced balance, mobility, walking and standing endurance.[6]
[6] A1 [11], [13]
The access request medical report indicated Mr Turner’s upper limb condition was congenital and permanent. It also noted Mr Turner had bilateral osteoarthritis of the knees for which the only available treatment was analgesia.[7]
[7] T13 at p93 of Exhibit 1
A report from a treating physiotherapist noted physiotherapy treatment was aimed at improving endurance, pain, function and strength. This treatment was not expected to remedy the underlying impairment.[8]
[8] T11 at p88 of Exhibit 1
Having regard to the Note to section 34 I am satisfied and find that Mr Turner continues to meet the disability requirements of section 24 as a result of his physical impairments.
I accept the Agency’s categorisation of these functional impairments as including severe limitation in range of motion, strength and function of the upper limbs, and reduced balance, mobility, walking and standing endurance.[9]
Is the Requested Support necessary to address an impairment related need?
[9] A1 at [12], [13]
In order to meet the criterion in section 34(1)(aa) the Tribunal must be satisfied the Requested Supports are necessary to address Mr Turner’s needs arising from the physical impairments noted above.
Although the Agency has identified the Requested Supports as one request of $5,570 for ‘annual membership for access to the golf green and associated cart fees’[10] it is apparent that there are two items: $4950 for golf club membership and $800 for golf cart usage.[11]
[10] A1 at [15.1]
[11] C1 at p135 of Exhibit 1
Mr Turner’s position is that being able to continue to play golf has always been a life goal expressly stated in his NDIS plans.[12]
[12] T1A at p 27 of Exhibit 1
In his Statement of Lived Experience Mr Turner described suffering from increasing depression and isolation as a result of his reduced physical capacity and the pain of his conditions.
He described being given a new lease on life following NDIS funding which provided treatment to improve his function and allowed a return to playing golf. He described golf as the motivating factor in continuing his exercises and improving his function. His goals of continuing to improve his abilities in the golf world and perhaps returning to work as a coach were part of this motivation. The removal of funding for his golf activities put these goals at risk and was profoundly distressing to him. He expressed concern that without being able to play golf he will again become severely depressed and go downhill.[13]
[13] C5 at p144 – 145 of Exhibit 1
Ms Deb Turner, Mr Turner’s wife, expressed how much of a difference NDIS funding for physiotherapy, home supports and golf activities had made for Mr Turner. She noted his increased community and social engagement, weight loss, improved strength and his improved, positive outlook. She noted golfing was a perfect activity for Mr Turner because when he became physically fatigued by standing or walking, he could sit in a golf cart and rest. She was concerned about Mr Turner’s mental health should funding not be allowed.[14]
[14] C6 at p146 – 147 of Exhibit 1
A report dated 28 November 2023 from Luke Hickey, Physiotherapist, noted that since funding for golf had been removed from Mr Turner’s plan, there had been a ‘significant decline’ in Mr Turner’s mental and physical well-being. This was not described more specifically.
Mr Hickey felt that regular participation in recreational activities, (along with the physio program and home exercises) helped maintain Mr Turner’s shoulder, lower back and knee function. Mobilisation around the golf course was also said to help with fitness and weight management.
Later in his report Mr Hickey advised that Mr Turner attended physiotherapy twice a week (both in clinic and in gym), engaged in a home exercise program of stretching and mobility exercises and swam and cycled to keep up his fitness. It was recommended these activities continue due to the noted improvement in Mr Turner’s range of movement, strength and endurance. Golf was noted to provide Mr Turner with a purpose and it was suggested that without golf Mr Turner’s willingness to participate in other aspects of his program may decline.[15]
[15] C2 at p 136 – 140 of Exhibit 1
Correspondence dated 20 February 2024 from Mr Gardell Parrag, Exercise Physiologist, supported continued funding of golf membership for Mr Turner due to its benefits for his physical and mental health.[16]
[16] C3 at p 141 – 142 of Exhibit 1
The Agency’s position with respect to section 34(1)(aa) is that there is insufficient evidence before the Tribunal to establish the Requested Supports address any need arising from Mr Turner’s accepted physical impairments.[17] These needs are met instead through funding for physical therapies.
[17] A1 at [33]
The Agency categorises the Requested Supports as ‘entrance costs’, payable by any person who wishes to play golf, and not specifically disability related.[18] They refer to the Support Guidelines which state:
You will need to pay for the costs of the activity that everyone would pay for such as membership or entrance costs. We may then be able to fund the support you need to take part in the activity because of your disability.[19]
[18] A1 at [35]
[19] A1 at [34]
Even though participation in golf may be a goal of Mr Turner, and even though it may be motivating for him when it comes to participation in his physiotherapy, the Agency argues this is not sufficient to meet this criterion. The membership itself does not address Mr Turner’s physical impairments.
Further they argue that to the extent the golfing activities are said to be beneficial for Mr Turner’s mental health, there is no evidence before the Tribunal of any Scheme-qualifying psychosocial impairment which might justify this funding.[20]
[20] A1 at [37]
The Agency were asked whether Mr Turner’s request for access to golf carts (to assist in addressing the mobility issues he has when playing golf) might be considered a disability related support. It was conceded in oral submissions that a golf cart might be sufficiently related to Mr Turner’s mobility issues to be a necessary support but in their view there was insufficient evidence before the Tribunal for such a finding to be made.
CONSIDERATION
Membership costs
Mr Turner met the disability requirements for access to the NDIS on the basis of physical impairments.
His efforts in embracing and fully participating in his physiotherapy and exercise programs are very commendable, with the result that his health and function has improved over the intervening years. This improvement has been sufficient to allow Mr Turner to make a return to recreational golf.
I accept that being a member of his local golf club lifts Mr Turner’s mood and creates meaningful opportunities for social and community engagement. I accept Mr Turner’s golf related goals and aspirations are motivating for him and that his outlook appears to have markedly improved as a result of his golfing activities. I accept that this activity reflects his personal choice and preference as a person with a disability.
I also accept that the physical activity of golf itself may contribute to the maintenance of Mr Turner’s physical function outside his physiotherapy and exercise programs by providing a different setting in which to mobilise and use his shoulders. There are clear benefits to Mr Turner from this involvement.
I also accept Mr Turner’s evidence that membership is a more cost-effective choice for him than paying casual entry fees given the number of times he attends the course each week.
However, on balance, I am not satisfied that the evidence supports a finding that fees associated with membership of Mr Turner’s club can be said to be ‘necessary’ to address a need arising from Mr Turner’s physical impairments. The evidence is that it is the twice weekly physiotherapy treatment and the home exercise program which are primarily necessary to address and maintain Mr Turner’s physical function.
To the extent golfing has improved Mr Turner’s mood, outlook and motivation, there is insufficient evidence before the Tribunal to allow a finding this is necessary to address a need related to any other Scheme-qualifying impairment.
While Mr Turner may very much prefer and continue to benefit from his golfing activity, funding of this membership through the NDIS does not fit within the requirements of section 34(1)(aa).
Golf Cart Fees
In relation to the separate support of access to a golf cart, I have considered the evidence on file relating to Mr Turner’s mobility. The Minor Home Modification Report of Regan Brown, Occupational Therapist dated 10 October 2022 notes that Mr Turner has a maximum walking distance of 200m and maximum standing time of 10 minutes.[21]
[21] T4 at p64 of Exhibit 1
This would suggest that as a result of his physical impairments, Mr Turner would be unable to complete a game of golf without the assistance of a golf cart. As such golf cart access might constitute a support necessary to allow his participation in this activity by directly addressing an impairment related need.
It is unclear to me, however, whether Ms Brown’s statement was a result of an independent functional assessment of Mr Turner’s capacity, or simply based on Mr Turner’s self-report.
I note also that Mr Hickey’s physiotherapy report dated 28 November 2023 spoke of Mr Turner’s golf involving ‘lots of walking around the golf course’, which was said to help with fitness and weight management.[22] As this report was produced after that of Ms Brown, I cannot be certain that it does not reflect a changed capacity in relation to Mr Turner’s mobility.
[22] C2 at p139 of Exhibit 1
Although further medical evidence may assist in establishing Mr Turner’s access to golf carts as a necessary support, I find that at this point there is insufficient evidence for me to make such a finding.
I find, therefore, that I cannot be satisfied that either of the Requested Supports meet the criterion in section 34(1)(aa) of the NDIS Act.
Are the Requested Supports ‘NDIS supports’?
Section 34 requires that all the criteria must be met before a support can be considered to be ‘reasonable and necessary’. As I have found the first criterion is not met, there is no need for me to consider any other mandatory criteria.
For completeness, however, I will give consideration to the additional criterion set out in paragraph 34(1)(f) which the Agency has raised as their primary excluding argument.[23]
[23] A1 at [24] to [31]
This subsection provides that the support under consideration must be an ‘NDIS support’ for the participant.
‘NDIS support’ is a new concept introduced by the Amending Act and is defined in Section 10 of the NDIS Act.
Section 10(1) of the amended NDIS Act provides that a support is an ‘NDIS support’ if the support is declared by the NDIS Rules to be so. Supports may be declared to be ‘NDIS supports’ for participants generally or for only specific groups of NDIS participants.
Section 10(4) provides that the NDIS Rules may also declare that a support is not an NDIS Support. Again, this may be so declared for participants generally or for particular groups of participants.
The Transitional Rules include two schedules which now declare some supports to be NDIS Supports[24] and others to not be NDIS Supports[25].
[24] Schedule 1 of the Transitional Rules
[25] Schedule 2 of the Transitional Rules
At Item 4(h) of Schedule 2, ‘Day-to-day living costs – Lifestyle’, the Transitional Rules provide that costs associated with recreational sports and activities, ‘including membership costs, venue fees, uniforms and footwear’ are declared to be supports that are generally not NDIS supports.
On the basis of these Rules, which I am bound to consider, I find that Mr Turner’s annual golf club membership fee is an item that cannot be funded as an NDIS support. The criterion in paragraph 34(1)(f) is not met.
In relation to golf cart fees, it is possible these may be declared to be NDIS Supports within Items 6, 7 or 28 of Schedule 1 of the Transitional Rules. Given my findings in relation to paragraph 34(1)(aa), however, it is not necessary for me to decide this.
CONCLUSION
For the reasons set out above I find the Requested Supports are not reasonable and necessary supports for the purpose of Section 34 of the Act and are unable to be included in Mr Turner’s NDIS plan.
As I have reached the same conclusion as the decision under review I will affirm that decision.
DECISION
The Tribunal affirms the decision under review dated 4 July 2023 pursuant to subsection 105(a) of the Administrative Review Act 2024.
Applicant’s representative: Self-represented
Respondent’s Counsel: Ms M Stone
Respondent’s solicitors: Maddocks Lawyers
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