VKKG and National Disability Insurance Agency (NDIS)
[2025] ARTA 789
•19 June 2025
VKKG and National Disability Insurance Agency (NDIS) [2025] ARTA 789 (19 June 2025)
Applicant:VKKG
Respondent: National Disability Insurance Agency
Tribunal Number: 2024/0111
Tribunal:General Member A Colvin
Place:Brisbane
Date:19 June 2025
Decision: The Tribunal affirms the decision under review.
.............SGD..................
General Member A Colvin
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – consideration of s 34 National Disability Insurance Scheme Act 2013 (Cth) – prescription swimming goggles, prescription glasses, prescription contact lenses, and associated products – decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth)Cases
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
National Disability Insurance Agency v WRMF [2020] FCAFC 79
FSWN and National Disability Insurance Agency [2025] ARTA 114
Johnstone and National Disability Insurance Agency [2025] ARTA 106Secondary Materials
NDIS – Operational Guidelines - Reasonable and necessary supports
NDIS – Operational Guidelines – Principles we follow to create your planStatement of Reasons
BACKGROUND
VKKG is a young boy and a participant in the National Disability Insurance Scheme (NDIS). As a NDIS participant, he has a plan that includes a statement of participant supports (SOPS). This review is about whether funding for additional supports should be included in those SOPS, including funding for prescription swimming goggles, prescription glasses, prescription contact lenses, and associated products.
On 13 September 2023, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (Agency) approved a SOPS in a plan for VKKG commencing on that date.[1] That decision was affirmed on internal review on 12 December 2023.[2]
[1] P2
[2] T2
On 4 January 2024 VKKG applied to the Administrative Appeals Tribunal (AAT).[3] From 14 October 2024, the AAT became the Administrative Review Tribunal (Tribunal). Applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal, and the Tribunal has authority to continue and finalise any aspect of the review not already completed by the AAT.[4]
[3] T1
[4] Transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
The hearing took place by videoconference on 29 April 2025, where VKKG was represented by his mother. Documents available to the Tribunal included a Hearing Bundle (HB), comprised of 253 pages, lodged by the Agency (Exhibit 1) and a NDIS plan approved on the day of the hearing (current plan) (Exhibit 2). The Agency provided a Statement of Facts Issues and Contentions (SFIC)[5] and an Amended List of Authorities comprised of 200 pages.
[5] RB10
THE ISSUES
On the day of the hearing the Agency decided under section 48 of the National Disability Insurance Scheme Act2013 (Cth) (the NDIS Act) to reassess VKKG’s plan and approve the current plan, commencing on that date. VKKG’s mother confirmed that, as a result, the following matters were no longer in dispute:
(1)3 hours per week of assistance with Social, Economic and Community Participation;
(2)6 hours of psychology;
(3)6 hours of physiotherapy; and
(4)$1,000 for low-cost consumables.
However, VKKG’s mother also confirmed that the following items remained in issue, for which VKKG sought per annum funding:
(1)one pair of prescription glasses, at $547; (the prescription glasses);
(2)one pair of aphakic glasses, at $497(the aphakic glasses);
(3)Markenovy BluGen custom-made soft contact lenses, at $1,560 (the requested contact lenses);
(4)Blink-n-clean lens drops, at $398.74 (lens drops);
(5)Cellufresh eye drops, at $398.74 (eye drops);
(6)Lens Plus Ocupure saline sterile rinsing solution, at $103.74 (rinsing solution);
(7)Acuvue Revitalens Multipurpose Disinfecting Solution, at $180 (disinfecting solution);
(8)contact lens cases, at $36; and
(9)one set of prescription swimming goggles, at $900 (the requested swimming goggles).
The issue for determination in these proceedings is whether each of these nine supports is a reasonable and necessary support for VKKG under subsection 34(1) of the NDIS Act:
THE LAW
The legislative framework
The statutory provisions relevant to this application for review are found within the NDIS law, including:[6]
·the NDIS Act;
·the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Supports Rules);
·the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth) (the Miscellaneous Provisions Transitional Rules); and
·the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth) (the NDIS Supports Transitional Rules).
[6] THE STATEMENT OF THE LAW THAT FOLLOWS LARGELY ADOPTS THE SUMMARY IN SHEPHERD AND NATIONAL DISABILITY INSURANCE AGENCY (NDIS) [2025] ARTA 163
The Agency also issues Operational Guidelines. The Tribunal is not bound to follow Operational Guidelines issued by the Agency but, in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task.[7] Operational Guidelines considered in the present matter, published by the Agency on its website, include the following:[8]
·Principles we follow to create your plan; and
·Reasonable and necessary supports.
[7] Re Drake v Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634
[8] Webpage: ourguidelines.ndis.gov.au
Approving SOPS in participants’ plans
Section 3 of the NDIS Act sets out the objects of the NDIS Act. Sections 4 and 5 of the NDIS Act set out general principles guiding actions under the NDIS Act, and sections 17A and 31 of the NDIS Act set out principles that relate to participation in the NDIS and plans.
If a person becomes a participant, under section 32 of the NDIS Act the CEO must facilitate the preparation of a plan for the participant. VKKG’s plan is an ‘old framework plan’. For those plans, section 33 of the NDIS Act sets out the matters that must be included in a participant’s plan. A plan must include a statement of the participant’s goals and aspirations. It must also include a SOPS, prepared with the participant and approved by the CEO. The SOPS in a participant’s plan must specify, among other things, ‘the reasonable and necessary supports (if any) that will be funded’ under the NDIS.[9]
[9] Paragraph 33(2)(b) of the NDIS Act
When approving a SOPS in a participant’s plan, the CEO must comply with the mandatory requirements contained in subsection 33(5) of the NDIS Act. One of the requirements in subsection 33(5) is that the CEO ‘be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded’: paragraph 33(5)(c) of the NDIS Act.
Subsection 34(1) of the NDIS Act deals with ‘reasonable and necessary supports’:
34 Reasonable and necessary supports
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(aa)the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation.
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is a NDIS support for the participant.
Note: For the purposes of paragraph (aa):
(a)the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b)a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
The matters set out above in subsection 34(1) of the NDIS Act are more than mandatory considerations. They are more in the nature of criteria that the decision‑maker must be positively satisfied about on the material.[10]
[10] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at 201
Importantly, paragraph 34(1)(f) of the NDIS Act requires the CEO to be satisfied that the support is ‘a NDIS support’ for the participant. Section 10 of the NDIS Act defines ‘NDIS support’. The effect of that section, in essence, is that a support is a NDIS support if it is declared by rules to be a NDIS support, provided that rules have not declared that the support is not a NDIS support, and provided that the support is not sexual services, alcohol, or illicit drugs. The NDIS Supports Transitional Rules declare certain items to be NDIS supports and certain items to not be NDIS supports.
In determining whether the requirements in subsection 34(1) of the NDIS Act are met, the Support Rules are relevant.[11] Rule 3.1 of the Support Rules, for example, deals with whether a support represents value for money. The Miscellaneous Provisions Transitional Rules are also relevant, including Rule 7, which requires consideration be given to whether a support is most appropriately funded through the NDIS.
[11] Subsection 35(2) of the NDIS Act
The NDIS Act was amended on 3 October 2024 by the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth) (the Amending Act). Although those amendments were made after VKKG applied to the AAT, the amendments to section 34 apply in relation to a SOPS included in an old framework plan for a participant if the SOPS is approved or varied on or after 3 October 2024.[12] This means that if the Tribunal varies the SOPS in VKKG’s plan it must apply the current provisions of the NDIS Act and Rules set out above.
[12] Item 129(1), part 3, schedule 1 of the Amending Act
CONSIDERATION
VKKG has impaired vision and is under the care of an optometrist, an ophthalmologist, and an ophthalmic surgeon. It is clear from their reports that VKKG’s visual impairment is complex and severe.[13]
[13] T3, T4, T5, T15, T20, A1, A3 and A7
VKKG’s goals, set out in his plan dated 29 April 2025, include developing independence with self-care skills, developing friendships with peers, and joining in play and interactive games with others.
Supports 1,2 and 3: prescription glasses, aphakic glasses and contact lenses
VKKG seeks annual funding in the SOPS in his NDIS plan for the requested contact lenses, the prescription glasses, and the aphakic glasses, in the amounts quoted by VKKG’s optometrist in July and August 2024. Those amounts are $1,560, $547 and $497, respectively.
Submissions
The Agency contends that funding for these three supports cannot be included in the SOPS in VKKGF’s NDIS plan because paragraph 34(1)(f) of the NDIS Act is not met. The Agency contends that the items are not an ‘NDIS support’ because they fall within Item 12(h) of Clause 1, Schedule 2 of the NDIS Supports Transitional Rules, which provides that the following support is not an ‘NDIS support’:
12 Health The following:
….
(h) prescription spectacles or contact lenses; …
On VKKG’s behalf, it is contended that the prescription glasses, the aphakic glasses, and the requested contact lenses are each a NDIS support because they are ‘vision equipment’ in item 36 of Clause 1, schedule 1. It is further contended that Item 12(h) in schedule 2 does not apply for the following reasons:[14]
[14] A1, A5 and A6
(1)VKKG receives supports under the NDIS based on vision impairment;
(2)VKKG’s vision impairment is complex and severe;
(3)the requested glasses and contacts lenses are not ‘normal’ or ‘general’ or ‘generic’ vision wear because VKKG’s vision wear needs are extensive and complex, he relies on his glasses and contacts lenses in a unique manner, and the requested glasses and contacts lenses address VKKG’s specific impairments and are highly customised, significantly more expensive, and sourced internationally;
(4)there are no alternative ways to fund the requested glasses and contact lenses;
(5)disallowing funding for the requested glasses and contact lenses would have major impacts on VKKG (including loss of independence, loss of opportunities, heightened risk, and accelerated vision loss);
(6)ultimately, there would be an increased cost to the NDIS if the requested glasses and contact lenses were not funded;
(7)the requested glasses and contact lenses are supports that align with VKKG’s goals;
(8)the overarching test in section 34 of the NDIS Act is whether a support is ‘reasonable and necessary’; and
(9)failure to fund the requested glasses and contact lenses would contradict the core objective of the NDIS.
As to the general construction of the NDIS Supports Transitional Rules, the Agency contends that the Tribunal should, with minor modification, adopt the two-stage approach set out in FSWN and National Disability Insurance Agency (NDIS) [15] It also contends that any argument that the operation of schedule 2 is not absolute or universal must fail. Issues such as the inability of a participant to self-fund a support cannot be considered, in the Agency’s submission, and would have the effect of introducing a means test into the NDIS scheme. Similarly, in the Agency’s submission, in applying Item 12(h) no distinction can be made based on whether prescription spectacles and contact lenses are for a participant who has been granted access to the NDIS primarily for vision impairment.
[15] [2025] ARTA 114
The Agency points to subsection 5(2) of the NDIS Supports Transitional Rules which states that a support covered by column 2 of an item in the table in clause 1 of schedule 2 is not a NDIS support for ‘for any participant’ (emphasis added). It also notes the use of the word ‘generally’ in the headings in section 5 and schedule 2 of the NDIS Supports Transitional Rules but refers to the discussion on that issue in Johnstone and National Disability Insurance Agency.[16]
[16] [2025] ARTA 106
More specifically regarding Item 12(h), the Agency points to the absence of any terms of qualification in Item 12(h). In the Agency’s submission, it is irrelevant to the operation of Item 12(h) whether the prescription spectacles and contact lenses are ‘normal’, ‘specialised’ or ‘custom made’. Similarly, the Agency contends that Item 12(h) makes no distinction based on the severity of a participant’s vision impairment.
As to the meaning of the word ‘spectacles’ in Item 12(h), the Agency refers to the Oxford and Macquarie dictionary definitions.[17] The Oxford dictionary defines spectacles as:
plural noun a device to aid defective vision or to protect the eyes from light, dust, etc., consisting usually of two glass lenses set in a frame which rests on the nose.’
[17] Footnote 21 Agency’s SFIC
Similarly, the Macquarie dictionary defines spectacles as:
a device to aid defective vision or to protect the eyes from light, dust, etc., consisting usually of two glass lenses set in a frame which rests on the nose and is held in place by pieces passing over or around the ears (often called a pair of spectacles).
Consideration
Item 12(h) of the NDIS Supports Transitional Rules, together with paragraph 34(1)(f) and section 10 of the NDIS Act, confers no general discretion that would enable the Tribunal to disregard Item 12(h). It is not open to the Tribunal to conclude, for example, that Item 12(h) should not apply to VKKG because special circumstances exist in VKKG’s case, or because the supports that he seeks are otherwise reasonable and necessary. Any contention advanced on VKKG’s behalf that the Tribunal can adopt that course is incorrect.
There is also no basis on which to construe Item 12(h) as not applying to VKKG because his primary disability is vision impairment. This is particularly so when regard is had to subsection 5(2) of the NDIS Supports Transitional Rules.
The issue for the Tribunal is whether, as contended by the Agency, the prescription glasses, the aphakic glasses, and the requested contact lenses are properly characterised as falling within the scope of Item 12(h) as ‘prescription spectacles or contact lenses’. Item 12(h) contains no exception or qualification that would enable the Tribunal to have regard to the following matters advanced on VKKG’s behalf in determining whether those supports fall within Item 12(h):
· the severity and complexity of VKKG’s visual impairment;
· unusual costs or complexity in VKKG’s eyewear needs generally, or specifically in the prescription glasses, aphakic glasses and requested contact lenses;
· his ability to self-fund his eye-wear needs; and
· the impact on him if the prescription glasses, aphakic glasses or requested contact lenses cannot be included in his NDIS plan.
The prescription glasses, the aphakic glasses and the requested contact lenses each clearly fall within the term ‘prescription spectacles or contact lenses’ in Item 12(h) of Schedule 2 of the NDIS Supports Transitional Rules. This means they are not an ‘NDIS support’ and that the requirement in paragraph 34(1)(f) of the NDIS Act is not met for these three supports.
Supports 4 and 5: lens drops and eye drops
VKKG seeks funding per annum in the SOPS in his NDIS plan for lens drops and eye drops. The evidence of VKKG’s mother was that the eye drops, and lens drops are regularly administered directly into VKKG’s eyes. This is consistent with the online descriptions of those products provided by the Agency.[18] The eye drops are an eye lubricant while the lens drops are intended to clean contact lenses without having to remove them from the eyes.
[18] RB5 and RB6
On VKKG’s behalf it is contended that each of these products is a NDIS support pursuant to Item 9(h) of Clause1 in Schedule1 of the NDIS Supports Transitional Rules.[19] That item deals with ‘assistive products for personal care’ described in column 2 as follows:
Provision of assistive products for self-care activities and participation in self-care.
This includes the following:
….
(h ) maintenance, spare parts and consumables items specific to an assistive product.
[19] A6 at 232
The Agency contends that these products are properly characterised as pharmaceuticals, falling within the scope of Item 12(d) of schedule 2 of the NDIS Supports Transitional Rules which excludes ‘pharmaceuticals (including prescription medicines and non-prescription medicines)’ as NDIS supports.
Having regard to the nature of the eye drops and the lens drops, as solutions administered directly into the eyes, I accept the Agency’s submission that those two products are excluded by Item 12(d). It is therefore not necessary for me to consider whether they fall within Item 9(h) or any other item in schedule 1. The lens drops and eye drops are not NDIS supports. This means that the requirement in paragraph 34(1)(f) of the NDIS Act is not met for those two supports.
Supports 6,7 and 8: contacts lens cases, disinfecting solution, and rinsing solution
VKKG seeks funding per annum in the SOPS in his NDIS plan for rinsing solution, disinfecting solution and contact lens cases. Again, on VKKG’s behalf, it is contended that each of these products is a NDIS support pursuant to Item 9(h) of Clause 1 in Schedule1 of the NDIS Supports Transitional Rules.[20]
[20] A6 at 232
It is central to Item 9(h) that the support in issue (that is, the maintenance, spare parts or consumables) is specific to an assistive product within Item 9 ( that is, to an assistive product for self-care and participation in self-care). In VKKG’s case, the rinsing solution, disinfecting solution and contact lens cases are consumables specific to the requested contact lenses. As the requested contact lenses do not fall within Item 9 of schedule 1, consumables specific to the requested contact lenses do not fall with Item 9(h).
It was not contended, and I do not consider, that the contacts lens cases, sterile solution and rinsing solution fall within any other item in schedule 1 of the NDIS Supports Transitional Rules. It may be that each of these products is also specifically excluded by an item in schedule 2 of the NDIS Supports Transitional Rules. I am satisfied however that, in either case, none of these three items falls within item 9(h) or any other item in schedule 1. This means that the requirement in paragraph 34(1)(f) of the NDIS Act is not met for these three supports.
Support 9: Prescription swimming goggles
Evidence
VKKG seeks funding for the requested swimming goggles, in accordance with VKKG’s optometrist’s quote (provided in July 2024) of $900/pair, with one pair required each year. The quote refers to ‘Rx swimming goggles’ but does not identify the item in more detail.[21]
[21] A3
In her written statement in January 2025, VKKG’s mother stated that VKKG used ‘aphakic goggles’ when engaged in activities involving water, including swimming and showering. She said that he would require significantly more assistance without those goggles.[22] At the hearing VKKG’s mother explained that she had recently purchased these goggles for VKKG using funding in his NDIS plan. She said that he had previously used non-prescription swimming goggles with contact lenses but was unable to continue this arrangement after a change was made to his contact lenses, and to the glasses that he wore with those contact lenses.
[22] A5
While the evidence indicates that there has been a change in VKKG’s glasses and contact lenses,[23] there is no evidence from health professionals explaining the change and any implications for VKKG and his use of non-prescription goggles when showering or swimming. There is also minimal information from health professionals explaining the benefits generally of prescription swimming goggles for VKKG and the alternatives, if any.
[23] By 14 January 2025, according to a statement by VKKG’s mother, VKKG generally wore bifocal glasses with contact lenses during school hours and aphakic glasses without contact lenses outside of those times. In contrast, in mid-2024 VKKG was using bifocal glasses when he was unable to wear contact lenses according to VKKG’s optometrist at A3 at 221 HB
VKKG’s ophthalmic surgeon referred briefly to goggles in March 2022, stating that VKKG required continued management with appropriate contact lenses, back-up prescription glasses, and ‘protective prescription goggles/protective sports glasses’. She said that deprivation of these aids would negatively impact VKKG’s visual development and may lead to potentially irreversible visual complications. [24]
[24] T4
VKKG’s ophthalmologist described VKKG’s eye-wear needs around the same time, in March 2022. He did not refer to goggles. [25]
[25] T5
VKKG’s optometrist also described VKKG’s eye-wear needs in March 2022, without referring to goggles. He referred to the need for spectacles when VKKG was unable to wear contact lenses including during any water-based activities as his contact lens were not suitable to be worn in scenarios when he was possibly exposed to water.[26]
[26] T3
VKKG’s optometrist referred briefly to goggles on 9 October 2023, stating:[27]
Vision wear, such as highly complex prescription glasses, goggles or contact lenses are a fundamental necessity for (VKKG).
[27] T20
VKKG’s optometrist also provided a quote for the requested swimming goggles in July 2024, stating:[28]
Necessary for VKKG to safely and comfortably shower and swim, (previously over counter purchase but did not provide the full protection required).
[28] A3
VKKG’s optometrist does not explain the importance for VKKG of ‘full protection’. Nor does he explain why it is not possible to source non-prescription goggles that provide the same level of protection as prescription goggles.
Recently, VKKG’s ophthalmologist provided a further letter dated 20 January 2025. He does not refer to goggles, or other specific eyewear needs. He does state that improper cleaning and maintenance of VKKG’s vision wear can lead to corneal infection which in turn can cause permanent and irreversible visual loss. [29] There is no other evidence from health professionals addressing infection or the benefits of prescription goggles for VKKG in preventing infection.
[29] A7
Submissions
The Agency contends that there is insufficient evidence on which the Tribunal could be satisfied that paragraphs 34(1)(aa), (c) and (d) of the NDIS Act are met regarding the requested swimming goggles. [30]
[30] Paragraph 42 Agency’s SFIC
The Agency also contends that the requested swimming goggles are ‘prescription spectacles’ falling within Item 12(h) of Clause 1, Schedule 2 of the NDIS Supports Transitional Rules. It argues that the presence of corrective lenses is a defining characteristic of spectacles, referring to the Macquarie and Oxford definitions discussed earlier).[31] VKKG uses the requested swimming goggles to see while swimming or in the shower, and they are therefore, in the Agency’s submission, spectacles to be used in a water environment. The Agency emphasises the use of the more formal term ‘spectacles’ in Item 12(h), rather than a term such as ‘glasses’.
[31] Those definitions in fact include items with lenses that aid vision, but also items with lenses that simply protect the eyes.
On VKKG’s behalf, it is contended that the requested swimming goggles are a NDIS support because they fall within Items 7 and 9 of Clause 1 of Schedule 1.[32] Item 7 deals with assistive equipment for recreation while Item 9 deals with assistive products for personal care and safety. It is contended in this regard that VKKG requires the requested swimming goggles to protect his eyes, including against infection.[33]
[32] A6 at page 232 HB
[33] A6 at page 230 and 232 HB
Regarding Item 12(h) of Clause 1, Schedule 2 of the NDIS Supports Transitional Rules, the same contentions (set out earlier) are made on VKKG’s behalf regarding the requested swimming goggles as are made regarding the prescription glasses, aphakic glasses, and contact lenses.
Consideration
VKKG uses prescription swimming goggles daily when showering. He also uses them regularly for recreational swimming. He previously used contact lenses with non-prescription swimming goggles.
The phrase used in Item 12(h) of Clause 1, Schedule 2 of the NDIS Supports Transitional Rules is ‘prescription spectacles’. That phrase must be given its ordinary meaning in the context of the legislative scheme in which it appears. Item 12 identifies various supports that are not NDIS supports because they are related to ‘health’. It is contained in a legislative scheme whose objects include providing reasonable and necessary supports to participants of the NDIS, while having regard to the need to ensure the financial sustainability of the NDIS and the provision of services by other agencies.[34] In that context, I consider that the phrase ‘prescription spectacles’ refers generally to prescription eyewear, including the requested swimming goggles. This means that the requested swimming goggles fall within Item 12(h) and that the requirements in paragraph 34(1)(f) of the NDIS Act are not met.
[34] Section 3 NDIS Act.
Even if the requested swimming goggles are a NDIS support for the purposes of paragraph 34(1)(f) of the NDIS Act, I am not satisfied that paragraph 34(1)(c) of the NDIS Act is met. It requires that the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support.
I accept, based on the evidence of VKKG’s mother and VKKG’s optometrist, that VKKG’s vision is so impaired that he benefits from using eye wear while showering and swimming, and that without this he would require significantly more personal assistance while showering and swimming. I also accept, although there is minimal evidence on this issue, that because of his eye conditions, VKKG benefits from the protection that swimming goggles afford his eyes when he is exposed to water.
The requested swimming goggles confer these benefits at a cost of $900/year. What is not clear is whether that represents value for money relative to the cost of any alternative support, particularly non-prescription swimming goggles (worn with contact lenses), or prescription swimming goggles that are not customised. That is because there is insufficient information regarding those options. I am therefore not satisfied that paragraph 34(1)(c) of the NDIS Act is met.
For the reasons set out above, I find that the aphakic glasses, the prescription glasses, the requested contact lenses, the lens drops, the eye drops, the contacts lens cases, the disinfecting solution, the rinsing solution, and the requested swimming goggles are each not a NDIS support for VKKG and that the requirement in paragraph 34(1)(f) of the NDIS Act is not met for each of these supports.
It is therefore not necessary to consider the remaining requirements in section 34(1) of the NDIS Act. However, regarding the requested swimming goggles I have also considered the requirement in paragraph 34(1)(c) of the NDIS Act and am satisfied that requirement is also not met for the requested swimming goggles.
This means that none of the supports sought by VKKG are reasonable and necessary supports pursuant to subsection 34(1) of the NDIS Act.
DECISION
The Tribunal affirms the decision under review.
1.
2. I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for the decision herein of General Member A Colvin.
..................................................
Associate
19 June 2025
Dates of hearing: 29 April 2025
Solicitor for the Respondent: M Sugiyama, Mills Oakley
Counsel for the Respondent: J Sproule
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