WVGM and Chief Executive Officer of the National Disability Insurance Agency (NDIS) - [2025] ARTA 47

WVGM and Chief Executive Officer of the National Disability Insurance Agency (NDIS) [2025] ARTA 47 (21 January 2025)
Applicant/s:  WVGM
Respondent:  Chief Executive Officer of the National Disability Insurance Agency
Tribunal Number:                2022/7585

Tribunal:Senior Member K Parker
Place:Melbourne
Date:21 January 2025

Decision:The Tribunal sets aside the Decisions Under Review and remits this matter to the Respondent for reconsideration in accordance with a direction that within 14 days of the date of this Decision, the Respondent must facilitate the approval of a new statement of participant supports for the Applicant (‘New SOPS’), containing the following provisions:

a provision to approve funding for the following supports:1.
13 hours per annum of nursing services (excluding any travel by the nurse to provide those services, which are not to be funded under the NDIS) to assist the Applicant with her catheter/wound care;(a)
replication of all existing supports in the Applicant’s current statement of participant supports approved on 11 December 2024 (‘Current SOPS’), except for any one-off funding which has already been expended by the Applicant (or anyone else on her behalf);(b)
a provision specifying that the funding approved for the Applicant in accordance with this Direction, be the same as specified in the Applicant’s Current SOPS; and2.
4.a provision specifying that subject to the operation of the National Disability Insurance Scheme Act 2013 (Cth), the Applicant’s NDIS plan is to be reassessed on or before the 12-month anniversary of the date of approval of the New SOPS.

.....................................[SGD]...................................
Senior Member K Parker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – plan review – adult participant – diagnoses of major depressive disorder, obsessive compulsive disorder, borderline personality disorder, post-traumatic stress disorder, anxiety, scoliosis, diabetes Type II, high blood pressure and Tourette’s syndrome – Respondent accepts Applicant has impairments which are attributable to a psychosocial disability – Applicant suffered from cervical cancer and underwent a hysterectomy – Applicant experiences bladder issues and uses a supra pubic catheter – Applicant also claims to have physical impairments, cognitive impairments and an acquired brain injury – review of supports – request for support worker assistance, respite, short term accommodation, cost of purchasing an air-conditioning unit and “brain therapy” – whether “reasonable and necessary supports” criteria under s 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) are met – dispute about how the funding for core supports for activities of daily living should be managed – Decisions Under Review set aside and remitted with a direction that the Respondent facilitate the approval of a new statement of participant supports for the Applicant containing certain provisions
Legislation
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
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1)(Miscellaneous Provisions) Transitional Rules 2024
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1)(NDIS Supports) Transitional Rules 2024
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth)
Cases
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v McGarrigle [2017] FCAFC 132
Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852
Secondary Materials
Operational Guidelines issued by National Disability Insurance Agency entitled “Creating your plan” on 3 October 2024 – OG Creating your plan PDF.pdf
Operational Guidelines issued by National Disability Insurance Agency entitled “Reasonable and necessary supports” on 22 September 2024 – OG Reasonable and necessary supports PDF (1).pdf
Operational Guidelines issued by the National Disability Insurance Agency entitled “Guide to Plan Management” in September 2020: PB Guide to Plan Management PDF (1).pdf
Statement of Reasons
BACKGROUND

The Applicant, WVGM,[1] is an adult participant in the National Disability Insurance Scheme (‘NDIS’). The NDIS is governed and administered under the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) and its associated rules (set out in detail below, as relevant to this application). The NDIS Act was the subject of significant amendments which took effect, as relevant to this application, in October 2024 while this proceeding was on foot before the Tribunal. This necessitated the Tribunal providing an opportunity to the parties after the hearing was concluded, to make further submissions about the impact of those legislative amendments as relevant to this application.
[1] Of the Tribunal’s own volition, by order under s 70 of the Administrative Review Tribunal Act 2024 (Cth), it directed that the pseudonym “WVGM” be used in place of the Applicant’s name to keep the identity of the Applicant confidential, due to the sensitive nature of the matters referred to in these Statement of Reasons.
WVGM is 35 years old with reported diagnoses of major depressive disorder (‘MDD’), obsessive compulsive disorder (‘OCD’), borderline personality disorder,[2] post-traumatic stress disorder (‘PTSD’), anxiety, diabetes Type II, high blood pressure and Tourette’s syndrome.[3] The evidence also revealed that WVGM has a history of cervical cancer and she has had a hysterectomy. WVGM reports she has suffered from bladder issues and she has had inserted and uses a supra pubic catheter (SPC). WVGM is reported by her doctors to have developed a dependence upon opioid-based prescription medication, which is also adversely impacting her health and function. WVGM claims to have physical and cognitive impairments and an acquired brain injury, in addition to impairments to which a psychosocial disability is attributable, resulting from the conditions referred to above.
[2] WVGM does not agree with this diagnosis as explained in more detail below.
[3] NDIA’s SFIC, [1].
WVGM lives in a public-housing unit in a sizable coastal town on the Sunshine Coast in Queensland. WVGM has a 12 year-old son and they have a pet dog. WVGM informed the Tribunal that her son lives with her and she cares for him with the assistance of her parents from time to time. She said her parents live close by.
WVGM requested to become a participant in the NDIS based on impairments arising from the “primary” and “secondary” disabilities of Complex PTSD, MDD, borderline personality disorder and Tourette’s syndrome.[4] The NDIA stated that WVGM was granted access to the NDIS on 29 June 2021 for Complex PTSD and that the NDIA had “noted” that WVGM had also been diagnosed with MDD, borderline personality disorder and Tourette’s Syndrome.[5] Based on the evidence currently before the Tribunal, there have been no findings or determinations made by the National Disability Insurance Agency (‘NDIA’) at any stage that WVGM suffers from a physical, cognitive or any other type of impairment/s which meet the disability requirements under s 24 or the early intervention requirements under s 25 of the NDIS Act. WVGM seeks to be recognised as having these other impairments in addition to those for which she was granted access to the NDIS.
[4] WVGM’s original Access Request Form signed by WBGM and Dr Patrick Wong, was lodged with the Tribunal – refer page 5 of this Form listing WVGM’s disabilities.
[5] NDIA’s SFIC, [4].
First NDIS Plan
On 5 August 2021, a delegate of the Chief Executive Officer (‘CEO’) of the NDIA approved a statement of participant supports (‘SOPS’) forming part of WVGM’s NDIS first plan, for a notional period of two-years (‘First SOPS’).[6]
[6] T-Documents, T12/112. The T-Documents are a set of documents that were lodged by the NDIA under s 37 of the (now repealed) Administrative Appeals Tribunal Act 1975 (Cth).
The First SOPS approved total funding for WVGM of $146,222.63 over two years, including:
(a)$115,680.40 for core supports comprising:[7]
[7] T-Documents, T12/121 & 122.
(i)$112,112.40 (to be “plan-managed”) for low cost assistive technology (‘AT’) and funding to assist WVGM with:
·     self-care tasks;
·     completion of meal preparation;
·     engaging in household management;
·     organising her routines;
·     house and yard maintenance;
·     participation in any community, social or recreational activities of her choice in 1:1 or group settings;
(ii)fortnightly recurring transport payments to WVGM equivalent to $3,568 per annum; and
(b)$30,542.23 for Capacity Building Supports, comprising:[8]
(i)$2,739.15 for support to set up, develop and process monthly statements (to be “NDIA-managed”);
(ii)$18,077.14 for allied health professionals and therapists (unspecified) to assess WVGM and to provide her with support to assist her in meeting her goals (to be “plan-managed”);
(iii)$1,163.94 to improve her health and well-being (unspecified) (to be “plan-managed”); and
(iv)$8,562.00 for support coordination comprising 100 hours of “psychosocial recovery coaching” to support WVGM to coordinate, connect and engage with her chosen service providers and to support her to build on her strengths, take control of her life and address barriers to achieving her goals (to be “plan-managed”).
[8] T-Documents, T12/123 & 124.
In 2022, WVGM (or someone on her behalf), arranged for Ms Elise Hampton, Minerva Allied Health Services, to conduct an interview with WVGM and her support worker for the purpose of preparing a detailed OT report.[9] On 3 June 2022, Ms Hampton issued an OT report (‘Ms Hampton’s Report’).[10]
[9] Ibid, T1A/6.
[10] Ibid, T1A/6-27.
In Ms Hampton’s Report, she stated that WVGM was living with “significant anxious and depressive symptomology” and “significant physical disability because of a number of diagnoses that cause her to experience high levels of pain, chronic fatigue, and considerably restrict her mobility”.[11]
[11] Ibid, T1A/7.
Ms Hampton stated in her report that, at this time, the following 15 medications were being prescribed to WVGM: Cavstat, Clonidine Hydrochloride, Duloxetine, Lamotrigine, Lasix, Lithicarb, Oroxine, Ozempic Injection, Palexia IR, Palexia SR, Panadeine Forte, Prazosin, Sifrol, Valium and Ventolin Inhaler.[12]
[12] Ibid, T1A/7 & 8.
Ms Hampton reported that WVGM had moved out of her parents’ home and that she was no longer in contact with them. Ms Hampton reported that WVGM had moved, on a weekly basis, for several months in early 2022, in the context of alleged domestic violence and breaches of an apprehended domestic violence order by an ex-perpetrator. Ms Hampton reported that during this time, WVGM required “extensive support practically and emotionally to be able to manage her mental health and provide some emotional stability for her son [name omitted], with her primary occupational role being that of mother”. Ms Hampton reported that WVGM was allocated a two-bedroom duplex through the Department of Housing where she resided with her son and her dog.[13]
[13] Ibid, T1A/8.
In summary, Ms Hampton, in her report, recommended that WVGM be provided with:
(a)six to eight hours of core support daily, to assist with daily living and community participation;[14]
[14] Ibid, T1A/25.
(b)weekly targeted core support for home maintenance and cleaning;[15]
[15] Ibid.
(c)capital and low risk/low cost AT;[16]
[16] Ibid.
(d)allied health therapies including ongoing:[17]
[17] Ibid, T1A/25 & 26.
(i)psychology;
(ii)referral and ongoing access to community mental health care (general practitioner and psychiatrist);
(iii)MeRT (Magnetic EEG/ECG-Resonance Therapy), through the Brian Treatment Centre, Morayfield (‘brain therapy’), due to “self-reported benefits” to previous attendance/engagement of such;
(iv)consideration of adjunct therapies, such as equine assisted therapy, art therapy etc;
(v)health and wellbeing supports, including access to dietetics;
(vi)physiotherapy and exercise physiotherapy/personal training/hydrotherapy; and
(vii)occupational therapy (‘OT’); and
(e)specialist support coordination (level 3) (number of hours unspecified).[18]
[18] T-Documents, T1A/27.
On 9 June 2023, WVGM signed an NDIS form entitled “NDIS Change of Details or Change of Situation Form”.[19] On this Form, WVGM stated that she wanted to add her physical disabilities to her existing disability profile, including Tourette’s, brain injury, and scoliosis.[20] WVGM stated that she has been diagnosed with a physical disability that significantly affects her daily life, mobility, and overall functionality. WVGM claimed she was only funded for 10 hours of support worker assistance per week and that it had been recommended that she have “24/7” morning and overnight support worker assistance per day. WVGM also requested funding for the following supports:
[19] NDIA’s HTB, Doc. 57/462.
[20] Ibid, Doc. 57/467.
(a)the cost of a Lite n’ Easy meal delivery service;
(b)short term accommodation (‘STA’) for 28 days per year;
(c)hydrotherapy;
(d)fortnightly physiotherapy sessions;
(e)fortnightly psychology sessions;
(f)four sessions of OT per annum;
(g)fortnightly art therapy;
(h)specialist OT services;
(i)specialist support coordination services;
(j)the cost of a “brain therapy full course”;
(k)fortnightly “social therapy singing lessons”;
(l)assistive technology (‘AT’);
(m)the cost of purchasing a Hi-Lo bed;
(n)the cost of purchasing a recliner chair;
(o)the cost of purchasing an air-conditioning unit;
(p)the cost of purchasing a wheelchair;
(q)the cost of purchasing a personal alarm; and
(r)the cost of purchasing a phone.[21]
[21] Ibid, Doc. 57/467.
Second NDIS Plan
On 14 June 2022, a delegate of the CEO approved a new two-year SOPS for WVGM (‘Second SOPS’).
The level of funding approved for WVGM was significantly increased in the Second SOPS. Specifically, the Second SOPS approved total funding of $217,066.31 for WVGM over two years, comprising:
(a)$184,521.28 for core supports comprising:[22]
[22] Ibid, T11/107 and 108.
(i)$180,953.28 for low cost assistive technology (‘AT’) and funding to assist WVGM with the completion of her daily personal care needs including initiating and completing self-care tasks, completion of meal preparation, engaging in household management, organising her routines, house and yard maintenance, and participation in any community, social or recreational activities of her choice in 1:1 or group settings (to be “plan-managed”); and
(ii)fortnightly recurring transport payments to WVGM of $3,568; and
(b)$32,545.03 for Capacity Building Supports, comprising:[23]
(i)$2,739.15 for support to set up, develop and process monthly statements (to be “NDIA-managed”);
(ii)$18,077.14 for allied health professionals and therapists (unspecified) to assess WVGM and to provide her with support to assist her in meeting her goals (to be “plan-managed”);
(iii)$1,163.94 to improve her health and well-being (specified as “6 hours is allocated for dietician consultation and diet plan development”) (to be “plan-managed”); and
(iv)$10,564.80 for support coordination to help WVGM connect with her chosen services and for “psychosocial recovery coaches” to support a person with psychosocial disability to build on her strengths, take control of her life and to address barriers to achieving her goals (to be “plan-managed”).
[23] Ibid, T11/109 and 110.
The core supports budget of $184,521.28 over two years is based on WVGM receiving two hours of support worker assistance per day, plus seven hours of domestic assistance per week, plus three hours per month of home and yard maintenance.[24]
[24] As set out in a funding breakdown provided by the NDIA during this proceeding - refer NDIA’s HTB, p.450.
On 8 August 2022, WVGM sought review of this decision under s 100 of the NDIS Act. Specifically, WVGM requested funding for core supports which would allow her to be provided with an additional six to eight hours of support worker assistance every day.[25]
[25] Ibid, T1B/28.
Internal Review Decision – 1 September 2022
On 1 September 2022, a different delegate of the CEO made an internal review decision under s 100 of the NDIS Act (‘Internal Review Decision’).[26] The Internal Review Decision “confirmed” the decision made on 14 June 2022 to approve the Second SOPS. The delegate included in her reasons a statement to WVGM as follows: “The limitations faced by your physical disabilities are currently not funded. It is advised that you engage with your Support Coordinator/Recovery coach to have these added. They must be requested formally along with the current disability evidence and assessed by the NDIS Access officer…”[27]
[26] Ibid, T1B/28.
[27] Ibid, T2/37.
On 12 September 2022, WVGM sought review of the Internal Review Decision by the then, Administrative Appeals Tribunal (‘AAT’).[28]
[28] Ibid, T1/1.
On 14 October 2024, the AAT became the Administrative Review Tribunal (‘this Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘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 this Tribunal. The Transitional Act gives this Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. Neither party disputed that this Tribunal has authority to deal with this present application. Specifically, the Tribunal has authority to undertake this review under s 18 of the Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’), operating in conjunction with s 103 of the NDIS Act.
Early depletion of core support funding in the Second SOPS
The core supports funding of $184,521.28 in WVGM’s Second SOPS was fully depleted with seven months after approval of the Second SOPS.[29]
[29] NDIA’s HTB, p.460. Under the Second SOPS, the core support funding was due to last until 13 June 2024 but there was none remaining for core supports by 18 January 2023.
Approval of Third SOPS and early depletion of core supports funding
On 19 January 2023, a delegate of the CEO approved a new 6-month SOPS for WVGM (‘Third SOPS’).[30] The level and type of core supports in the Second SOPS were replicated, on a pro-rata basis, in the Third SOPS.[31] The types of therapeutic interventions for WVGM in her Second SOPS were replicated in the Third SOPS (that is, psychology, physiotherapy, exercise physiology and other therapy (such as OT)), but the amount of funding (calculated on a pro rata basis) for these supports, was doubled. The level of funding for support from a dietician was replicated (on a pro-rata basis). The funding for support coordination level 2 was replicated (on a pro rata basis) and the level of funding for psychosocial recovery coaching was doubled (calculated on a pro rata basis).
[30] NDIA’s HTB, p 471.
[31] NDIA’s HTB, p.459.
In the first two-month period of this six-month NDIS plan, the core supports funding of $49,477.96 in the Third SOPS was fully depleted.[32]
[32] Under the Third SOPS, the core support funding was due to last until 20 July 2023 but there was no remaining funding for core supports by 20 March 2023.
Approval of Fourth SOPS and early depletion of core supports funding

On 21 March 2023, a delegate of the CEO approved a new 6-month SOPS for WVGM (‘Fourth SOPS’). The level and type of core supports and capacity building supports in the Third SOPS were replicated, on a pro-rata basis, in the Fourth SOPS.[33]
[33] NDIA’s HTB, p.457.
The core supports funding of $49,477.96 in WVGM’s Fourth SOPS was fully depleted in the first two-month period of this six-month NDIS plan.[34]
[34] NDIA’s HTB, p.457. Under the Fourth SOPS, the core support funding was due to last until 19 September 2023 but there was none remaining by 3 May 2023.
Approval of Fifth SOPS and early depletion of core supports funding
On 4 May 2023, a delegate of the CEO approved a new 6-month SOPS for WVGM (‘Fifth SOPS’). The level and type of core supports and capacity building supports in the Fourth SOPS were replicated, on a pro-rata basis, in the Fifth SOPS.[35]
[35] NDIA’s HTB, p.457.
The core supports funding of $49,477.96 in WVGM’s Fifth SOPS was fully depleted in the first two-month period of this SOPS. Under the Fifth SOPS, the core support funding was due to last until 2 November 2023 but there was none remaining by 10 July 2023.[36]
[36] NDIA’s HTB, p.457.
Approval of Sixth SOPS and Early Depletion of core supports Funding
On 11 July 2023, a delegate of the CEO approved a new six-month SOPS for WVGM (‘Sixth SOPS’). The level and type of core supports and capacity building supports in the Fifth SOPS were replicated, on a pro-rata basis, in the Sixth SOPS (subject to minor adjustments on account of rate increases in the relevant NDIS price guides).
The core supports funding of $51,886.19 in the Sixth SOPS was fully depleted in the first two-month period of this six-month NDIS plan.[37]
[37] Under the Sixth SOPS, the core support funding was due to last until 9 January 2024 but there was none remaining by 17 August 2023.
Approval of Seventh SOPS and early depletion of core supports funding
On 18 August 2023, a delegate of the CEO approved a new six-month SOPS for WVGM (‘Seventh SOPS’). The level and type of core supports and capacity building supports in the Sixth SOPS were replicated, on a pro-rata basis, in the Seventh SOPS.
The core supports funding of $51,886.19 in the Seventh SOPS was fully depleted in the first two-month period of this six-month NDIS plan.[38]
[38] Under the Seventh SOPS, the core support funding was due to last until 16 February 2024 but there was none remaining by 3 October 2023.
Approval of Eighth SOPS and early depletion of core supports funding
On 4 October 2023, a delegate of the CEO approved a new six-month SOPS for WVGM (‘Eighth SOPS’). The level and type of core supports and capacity building supports in the Seventh SOPS were replicated, on a pro-rata basis, in the Eighth SOPS.
The core supports funding of $51,886.19 in the Eighth SOPS was fully depleted in the first two-month period of this six-month NDIS plan.[39]
[39] Under the Eighth SOPS, the core support funding was due to last until 3 April 2024 but there was none remaining by 9 November 2023.
Approval of Nineth SOPS with change to plan management specifications
On 10 November 2024, a delegate of the CEO approved a new six-month SOPS for WVGM (‘Nineth SOPS’). The level and type of core supports and capacity building supports in the Eighth SOPS were replicated, on a pro-rata basis, in the Nineth SOPS except for the following items:
(a)the level of funding for daily support worker assistance was increased from two to five hours per day;
(b)the way the funding for daily personal domestic assistance was expressed in the Nineth SOPS was changed from being seven hours per week to one hour per day; and
(c)the level and type of support coordination services was changed to “52 hours of Level 3 support coordination” over the notional six-month plan period.
A further significant change made to the Nineth SOPS was that the funding for core supports was to be “Agency-managed”, rather than “plan-managed”.
By the end of the notional funding period for the Nineth SOPS, that is, 4 March 2024, all of the core supports funding of $132,470.28 in WVGM’s Nineth SOPS had been fully depleted.[40]
[40] NDIA’s HTB, p.453.
Approval of Tenth SOPS and early depletion of core supports funding
On 5 March 2024, a delegate of the CEO approved a new six-month SOPS for WVGM (‘Tenth SOPS’). The level and type of core supports and capacity building supports in the Nineth SOPS were replicated, on a pro-rata basis, in the Tenth SOPS except for the following items:[41]
(a)funding previously approved for house and yard maintenance was removed from the core supports budget;
(b)funding for psychology services was increased from six to 30 hours over the notional six-month plan period;
(c)funding for “other professional” services (such OT services) was increased from 10 hours to 20 hours over the notional six-month plan period; and
(d)funding for an exercise physiologist increased from six hours to 26 hours over the six-month plan period.
[41] NDIA’s HTB, p.452.
The core supports funding of $132,470.28 in WVGM’s Tenth SOPS was fully depleted in the first three-month period of this six-month NDIS plan.[42]
[42] Under the Tenth SOPS, the core support funding was due to last until 5 September 2024 but there was none remaining by 14 June 2024. This was a curious result given that all core supports funding in the Tenth SOPS was “Agency-managed”. Counsel indicated at the hearing the NDIA would be looking into this anomaly.
Approval of the Eleventh SOPS
On 18 June 2024, a delegate of the CEO approved a new six-month SOPS for WVGM (‘Eleventh SOPS’). The level and type of capacity building supports remained the same as in the Tenth SOPS. The plan management settings remained the same as in the Tenth SOPS. However, the level of core supports funding in the Eleventh SOPS increased significantly as set out below.
Specifically, the Eleventh SOPS approved total funding of $217,728.44 for WVGM over the six-month plan period, including:
(a)$176,419.38 for core supports comprising:[43]
[43] NDIA’s HTB, p.451.
(i)$133,746.40 (to be “Agency-managed”) for support worker assistance consisting of:
·            6 hours per day of Weekday Daytime Assistance with Daily Living;
·            3 hours per day of Weekday Evening Assistance with Daily Living;
·            9 hours per day of Saturday Assistance with self-care activities;
·            9 hours per day of Sunday Assistance with self-care activities;
·            9 hours per day at the Public Holiday rate for 12 days per annum;
(ii)$43,422.96 (to be “plan-managed”) for support worker assistance with community participation consisting of:
·3 hours per day of Access Community Social and Rec Activities – Weekday Daytime;
·3 hours per day of Access Community Social and Rec Activities – Saturday;
·3 hours per day of Access Community Social and Rec Activities – Sunday;
·3 hours per day of Access Community Social and Rec Activities – Standard – Public holiday rate.
The NDIA summarised the level of core support being provided to WVGM under this plan as being equivalent to 12 hours of “support hours” per day (seven days per week), which may be used “flexibly”.[44]
[44] Transcript Day 1, P-11.
There was also new funding provided for AT to enable WVGM to purchase:
(a)a “transit wheelchair” ($1,790);
(b)a “recliner chair” ($3,350);
(c)a “Hi-Lo bed” ($8,910);
(d)shower grab rails ($450); and
(e)a “pressure relieving cushion” ($300).
Approval of the Current SOPS
On 11 December 2024, a delegate of the CEO approved a new six-month SOPS for WVGM (‘Current SOPS’). The level and type of capacity building and core supports remained broadly the same as in the Eleventh SOPS except the $500 of the funding for AT was removed as this had already been spent by WVGM on a recliner chair. The plan management settings remained the same as in the Eleventh SOPS.
The Current SOPS approved total funding of $212,726.70 for WVGM over the six-month plan period, including:
(a)$176,419.38 for core supports comprising:
(iii)$138,706.83 (to be “Agency-managed”) for support worker assistance consisting of:
·     6 hours per day of Weekday Daytime Assistance with self-care activities;
·     3 hours per day of Weekday Evening Assistance with self-care activities;
·     9 hours per day of Saturday Assistance with self-care activities;
·     9 hours per day of Sunday Assistance with self-care activities;
·     9 hours per day at the Public Holiday rate for 10 days per annum;
(iv)$45,389.37 (to be “plan-managed”) for support worker assistance with community participation consisting of:
·3 hours per day of Access Community Social and Rec Activities – Weekday Daytime;
·3 hours per day of Access Community Social and Rec Activities – Saturday;
·3 hours per day of Access Community Social and Rec Activities – Sunday;
·3 hours per day of Access Community Social and Rec Activities – Public holiday rate for 10 days per annum.
The NDIA summarised the level of core support being provided to WVGM under this plan as being equivalent to 12 hours of “support hours” per day (seven days per week), which may be used “flexibly”.
WVGM’s Stated NDIS Goals
In the Current SOPS, WVGM’s stated NDIS goals include the following:
(a)to have WVGM’s dog trained as an assistance dog to assist her around her anxiety, safety (recognise when she is dissociating, tic attacks) and her confidence in social settings;[45]
(b)to improve WVGM’s community participation, find a social group and to develop meaningful friendships;
(c)to live as independently as possible in WVGM’s new home;
(d)to increase her ability to complete self-care activities regularly, prepare meals and increase her wellbeing to reduce hospital admissions; and
(e)to access allied health therapists to assist her to manage her mind and pain in a healthy way, to increase her energy and sleep and to improve her overall health.
[45] The plan refers to WVGM working with her support coordinator to assist her to obtain a specialised OT assessment and to complete the processes required. No evidence was lodged in this proceeding about this new requested support. This is not a support which was requested by WVGM in the context of this proceeding at any stage and the Tribunal does not propose to consider whether funding for it should be included at this stage in WVGM’s NDIS plan.
Decisions Under Review
In accordance with s 103(2) of the NDIS Act, the decisions under review in this proceeding are the Internal Review Decision, each of the subsequent decisions to approve the Third to Eleventh SOPS (inclusive) and the Current SOPS. They will be referred to collectively in this Decision as the ‘Decisions Under Review’.
Requested Supports
By the end of the hearing of this matter, the supports being requested by WVGM included the following (‘Requested Supports’):
(a)support worker assistance (specifically, WVGM now requests support worker assistance on a 1:1 basis for 24 hours per day, every day of the year (‘24/7 support worker assistance’));
(b)the cost to purchase and install air-conditioning in WVGM’s home;
(c)STA and associated tour/activity costs, at the standard rate for 20 days per annum;
(d)brain therapy, of 10 sessions per annum;
(e)nursing services to provided catheter care and wound care.
There is also a significant issue in this application about how the funding in WVGM’s plan should be managed. The NDIA’s position is that all core support funding in WVGM’s plan should be “Agency-managed”.[46] WVGM has made a plan management request that this funding be “plan-managed” (as it had been in the past until the approval of the Tenth SOPS, Eleventh SOPS and the Current SOPS).
[46] Transcript Day 4, P-64.
ISSUES
The issues arising for determination by the Tribunal in this application are:
(a)whether each of the Requested Supports are “reasonable and necessary supports” under the relevant provisions of the NDIS Act and its associated rules, and should be funded under the NDIS, and if so, at what level or intensity;
(b)if a new SOPS is approved for WVGM as a consequence of this Decision, to determine:
(i)the date by which the NDIA must reassess the new plan (‘Reassessment Date’); and
(ii)how the funding under WVGM’s NDIS plan for core supports in respect of activities of daily living should be managed (specifically, whether the Tribunal should accept WVGM’s plan management request that this funding be “plan-managed”, or “Agency-managed” as currently specified by the NDIA).
EVIDENCE, SUBMISSIONS AND HEARING
Evidence
Before the commencement of the hearing, the NDIA lodged the following documentary evidence with the Tribunal:
(a)on 19 September 2022, a set of documents lodged by the NDIA pursuant to its obligations under s 37 of the AAT Act (‘T-Documents’) (204 pages);[47]
[47] Exhibit T1.
(b)on 10 May 2024, the NDIA’s hearing tender bundle (‘NDIA’s HTB’) (totalling 690 pages) containing:[48]
[48] This was subsequently replaced by the NDIA’s Updated HTB referred to below.
(i)additional evidence (documents 16 to 41) provided by WVGM;
(ii)discharge summaries and clinical handover letters served by WVGM (documents 42 to 51);
(iii)the NDIA’s evidence (documents 52 to 77);
(c)on 3 July 2024, a set of documents lodged by the NDIA entitled “Second Hearing Tender Bundle” (‘NDIA’s Second HTB’), comprising:[49]
[49] Exhibit R2.
(i)relevant NDIS legislative provisions;
(ii)National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘Supports Rules’);
(iii)National Disability Insurance Scheme (Plan Management) Rules 2013 (‘Plan Management Rules’); and
(iv)seven sets of Operational Guidelines on different matters issued by the NDIA;
(d)on 3 July 2024, the Access Request Form in respect of WVGM signed by her (and attaching a “Statement of Permanency – Psychosocial Impairment” signed by Dr Patrick Wong, Psychiatrist), on 24 June 2021 (Dr Wong states that he first saw WVGM on 30 March 2020);[50]
(e)on 24 July 2024, a standalone version (containing meta-data) of the letter from Dr Anthony Shea dated 7 June 2024;[51]
(f)on 6 August 2024, information showing breakdown of figures in WVGM’s NDIS plan;[52]
(g)on 6 August 2024, a set of documents comprising summonsed medical records;
(h)on 23 August 2024, a set of documents comprising extracts from the summonsed medical records (no title or index) totalling 136 pages (‘NDIA’s Supplementary HTB’);[53]
(i)on 24 August 2024, a letter from Dr Swart to Ms Jade Phillipson dated 2 October 2023 and Ms Phillipson’s reply dated 3 October 2023;[54] and
(j)five screenshots produced by the NDIA from its computer system taken on 16 October 2021, 17 October 2021, 15 October 2021, 31 January 2022, and 7 February 2022, that relate to funding for short term accommodation (‘STA’) used by WVGM in 2021. The NDIA asserted that at the time those funds were drawn from WVGM’s NDIS funding, there was no provision of STA under her NDIS plans;[55] and
(k)the Current SOPS dated 10 December 2024, and a breakdown of the inputs used to calculate the figures in the Current SOPS.
[50] Exhibit R3.
[51] Exhibit R4.
[52] Exhibit R6.
[53] Exhibit R7.
[54] Exhibit R8.
[55] Transcript Day 4, p-5 and P-6 and email to the Tribunal on 28 November 2024.
The NDIA lodged a detailed report dated 19 April 2024 by Ms Orla Fox, OT, who conducted a functional assessment of WVGM (Ms Fox’s Report’).[56]
[56] NDIA’s HTB, A52.
WVGM lodged the following further evidence with the Tribunal:
(a)on 2 July 2024:
(i)a letter of recommendation by Ms Rachel Harris, Occupational Therapist, dated 27 May 2024;[57] and
[57] Exhibit A1.
(ii)a quotation provided by Lakeside Mobility for a Configura Comfort large, dated 27 May 2024;[58] and
[58] Exhibit A2.
(b)on 3 July 2024:
(i)a witness statement by WVGM entitled “Impact Statement” (undated) (‘WVGM’s SLE’);[59]
(ii)“Incident Reports” dated 28 December 2023, 31 December 2013, 10 January 2024, and 12 January 2024;[60]
(c)on 27 August 2024:
(i)an estimate by Sunshine Coast Nurse Services for a 12 month period, dated 26 July 2024;[61]
(ii)two videos of WVGM at a time when WVGM’s states she was having a seizure, as recorded by Ms Harris, OT, on 27 November 2024;[62] and
(d)on 19 September 2024, a report by Ms Sonia Swann following a nursing assessment by Sunshine Coast Nurse Services.[63]
[59] Exhibit A3.
[60] Exhibit A4.
[61] Exhibit A5.
[62] Exhibit A6.
[63] Exhibit A7.
Submissions
On 10 May 2024, the NDIA lodged its Statement of Facts, Issues and Contentions in this proceeding (‘NDIA’s SFIC’).
On 2 June 2024, WVGM lodged her Statement of Facts, Issues and Contentions in this proceeding (‘WVGM’s SFIC’).
On 4 October 2024, the NDIA lodged further submissions in relation to new evidence tendered by WVGM after the conclusion of the hearing about a nursing assessment performed in relation to WVGM’s need for nursing services (‘NDIA’s Supplementary SFIC’).
On 10 December 2024, the NDIA lodged further submissions addressing its view about the implications of the amendments to the NDIS Act which took effect on 3 October 2024, as relevant to this application (‘NDIA’s Final Submissions’). WVGM did not lodge any submissions or evidence in response to the NDIA’s Final Submissions.
Hearing
The hearing of this proceeding took place by video on 2, 3 and 4 July 2024 and 27 August 2024. WVGM was self-represented and assisted by Ms Gabel, Disability Advocate who was present for the entirety of the hearing. The NDIA was represented by Ms Natalie Blok of counsel and Makinson d’Apice Lawyers.
The following witnesses were called to give evidence at the hearing:
(a)WVGM;
(b)Ms Rachel Harris, OT. Ms Harris first met with WVGM on 17 January 2023 to undertake an initial OT assessment of her and issued an OT report which was undated.[64] At the hearing, Ms Harris said the report was “uploaded” on 17 January 2023 so it would have been issued on this date. Ms Harris said the assessment of WVGM took two hours. Ms Harris issued further reports on 8 March 2023 entitled “Mid-cost Assistive Technology Occupational Therapy Report”.[65] This report was amended on 17 April 2023. She also issued a two-page letter on 27 May 2024 in respect of WVGM. Ms Harris said she had previously acted as the spokesperson on behalf of WVGM when dealing with the OT from the Department of Housing in the process of finding public housing for WVGM. Ms Harris said she had visited WVGM on 12 occasions over the last 18 months;
(c)Ms Lisa Brown, OT, who issued a report dated 3 October 2022 (Ms Brown’s Report)[66] and letter dated 10 November 2022[67] and 28 April 2023;[68]
(d)Ms Fox, OT;
(e)Dr Swart, current treating general practitioner;
(f)Dr Wong, former treating psychiatrist;
(g)Dr Shea, former treating general practitioner;
(a)Dr Jayde Phillipson, treating psychologist;
(b)Ms FS, who was WVGM’s support worker from 10 July 2023 to 26 May 2024.[69] WVGM informed the Tribunal that her services have now been terminated (see more detail about this below).
[64] NDIA’s HTB, p.277.
[65] Ibid, p.283.
[66] Ibid, A23.
[67] Ibid, A26.
[68] Ibid, A31.
[69] Transcript Day 2, P-177.
WVGM lodged with the Tribunal a witness statement by her son but he was not called as a witness at the hearing.[70] The Tribunal notes that WVGM is a child. The Tribunal did not press for any involvement by WVGM’s child in this proceeding.
[70] NDIA’s HTB, A25.
The NDIA contested the accuracy of many relevant facts being presented by WVGM in this matter and the source of some of the documentary evidence lodged by WVGM, including an allegation that WVGM had forged a letter appearing to be a letter from her former general practitioner, Dr Shea. Unfortunately, the cross-examination of WVGM was unable to be completed. WVGM, of her own volition, departed the hearing process on two different hearing days upon being challenged in relation to different aspects of her evidence. Further on the last day of the hearing, WVGM’s disability advocate, Ms Gabel informed the Tribunal to the effect that WVGM had no intention of re-appearing or participating in the hearing process. The NDIA was denied the opportunity of further testing the veracity of WVGM’s evidence during cross-examination.

On both occasions when WVGM prematurely departing the hearing process, the Tribunal was satisfied that WVGM had been provided with a reasonable opportunity to participate in the hearing and decided that it was appropriate to continue the hearing in her absence. Ms Gable remained present during the hearing and after the hearing was concluded, arrangements were made for WVGM, and Ms Gable, to be provided with a copy of a transcript of the hearing. Further, an invitation was made by the Tribunal for WVGM to lodge written submissions, if she wished to so, within 14 days. This invitation was not taken up by WVGM, except that she obtained and lodged a new report about her nursing needs from a nursing service. The NDIA objected to the late tender of this new clinical evidence. The Tribunal decided it was appropriate to re-open the matter so as to allow the new clinical evidence to be received into evidence. The Tribunal provided the NDIA with an opportunity to respond to this new evidence. The NDIA did so by lodging the NDIA’s Supplementary SFIC.
More recently, both parties were provided with an opportunity to lodge further submissions or evidence in relation to the significant legislative amendments which took effect on 3 October 2024 as relevant to this application. As mentioned above, the NDIA did so on 10 December 2024 by lodging its Final Submissions. WVGM did not lodge any submissions about the significance of those amendments.
LEGISLATIVE FRAMEWORK
The NDIS was established under the NDIS Act and operates in pursuit of the objectives set out in s 3 of the NDIS Act. Section 4 establishes general principles guiding actions to be taken under the NDIS Act.
Section 31 of the NDIS Act establishes a set of general principles that apply to the preparation, variation, reassessment, and replacement of a NDIS participant’s plan, as reproduced below:
31       Principles relating to plans
The preparation, variation, reassessment and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable:
(a)       be individualised; and
(b)       be directed by the participant; and
(c)where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(ca)where relevant, recognise and respect the relationship between participants and their families and carers; and
(d)strengthen and build capacity of families and carers to support participants who are children; and
(da) if the participant and the participant’s carer agree – strengthen and build the capacity of families and carers to support the participant in adult life; and
(e)consider the availability to the participant of informal support and other support services generally available to any person in the community; and
(f)support communities to respond to the individual goals and needs of participants; and
(g)be underpinned by the right of the participant to exercise control over his or her own life; and
(h)advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i)        maximise the choice and independence of the participant; and
(j)facilitate tailored and flexible responses to the individual goals and needs of the participant; and
(k)provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.
Section 31 of the NDIS Act sets out several principles that apply in the development of a NDIS plan for a participant. The purpose of the plan is to state how the funds provided for the participant’s supports are to be managed. The plan is the instrument that governs the funding the participant is entitled to receive under the NDIS.
Under s 37(1) of the NDIS Act, a participant’s plan does not come into effect until the CEO has received the statement of goals and aspirations from the participant and the CEO has approved the SOPS.
Section 33 of the NDIS Act sets out certain matters that must be included or specified in a participant’s plan, including their statement of goals and aspirations (s 33(1)(a)) which is to specify their living arrangements, informal and community supports and social and economic participation. The participant’s SOPS is to be prepared with the participant and approved by the CEO (or delegate) and is to specify the matters listed in s 33(2) of the NDIS Act, which includes the “general supports” and “reasonable and necessary supports”, the date by which the NDIA must reassess the plan, and the management of the funding and other aspects of the plan.
Section 33(5) of the NDIS Act requires that the CEO (or delegate), in deciding whether to approve the SOPS under s 33(2), must:
(a) have regard to the participant’s statement of goals and aspirations; and
(b) have regard to relevant assessments conducted in relation to the participant; and
(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant and
(g) have regard to whether section 46 (acquittal of NDIS amounts) was complied with in relation to any previous plan for the participant.
The NDIS rules referred to in s 33(5)(d) include the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (‘Supports Rules’), National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth) and the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1)(NDIS Supports) Transitional Rules 2024 (‘Transitional NDIS Supports Rules’).
The NDIS Act was recently amended by the enactment of the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Act 2024 (Cth) (‘Amendment Act’). Of relevance, the recent amendments introduced a new criterion required to be satisfied under s 34(1) of the NDIS Act, for the decision-maker to be satisfied that a support is a “reasonable and necessary support” and should be funded under a participant’s NDIS plan, specifically, s 34(1)(aa) (as set out in the paragraph below). These amendments also changed the wording in the criterion required to be satisfied under s 34(1)(f). For this criterion to be satisfied, the support must be an “NDIS support”. The new Transitional NDIS Supports Rules prescribe a list of what is, generally, an “NDIS support” (in the table in Schedule 1) and what is “not an NDIS support” (in the table in Schedule 2).
Section 34(1) of the NDIS Act provides as follows:
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 the needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is an NDIS support for the participant.
Note:For the purpose 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 [NDIS] rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).
The Tribunal also notes the observations of Mortimer J in McGarrigle v National Disability Insurance Agency [2017] FCA 308 (‘McGarrigle’) at [43], as follows:[71]
The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) to (7) constrain the rule-making power to preserve the federal characteristics of the NDIS. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the 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, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.
[71] The Tribunal notes that this decision was appealed but that the appeal was dismissed: refer National Disability Insurance Agency v McGarrigle [2017] FCAFC 132.
More recently, Colvin J in Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852 (‘Public Trustee of South Australia’) at [17] to [23], decided that there is a two-stage process for a decision-maker to deploy the concept of “reasonable and necessary supports” in the NDIS Act as a whole. The first stage is to decide whether it is a reasonable and necessary support in light of the provisions of the NDIS Act as a whole, including the guiding principles set out in s 4 of the NDIS Act. The second stage is for the decision-maker to reach an affirmative state of satisfaction as to each of the criteria set out in s 34(1) of the NDIS Act. Those criteria are concerned with the extent to which it may be appropriate for a reasonable and necessary support to be funded under the NDIS.
The Tribunal has considered the following Operational Guidelines issued by the NDIA entitled (links provided above under the hearing “Secondary Materials”) as relevant to this application:
(a)“Creating your plan”, last updated on 3 October 2024;
(b)“Reasonable and necessary supports”, last updated on 22 September 2024;
(c)“Guide to Plan Management”, issued in September 2020.
CONSIDERATION
Background information provided by WVGM and Dr Patrick Wong, Neurologist, at the hearing
On the first day of the hearing, WVGM gave evidence that she was “born with scoliosis and Tourette’s from birth”. She said her “other conditions” were “left dormant” while she was working in the medical field for 10 years (six of them as a nurse) until she “got cervical cancer” at age 28 and had to have a full hysterectomy.[72] WVGM gave evidence that in 2010, her daughter was born premature and passed away.[73]
[72] Transcript Day 1, P-22.
[73] Ibid.
On the first day of the hearing, WVGM gave evidence that she did not have any immediate family members. She said she had two friends who “try to” see her. She said she does not have support, except for her support workers. She gave evidence that she has “full custody” of her 11-old-son (since he was age 3), who she said lives with her.[74] Upon questioning by the Tribunal, WVGM said her son went to live with her parents when she was “quite sick”, and that when she got her “recent diagnosis”, he went to live with them for the school holidays. It is apparent from this evidence that WVGM does have access to informal support from family members contrary to her evidence on the first day of the hearing. WVGM said her son will start high school in 2025.[75] She gave evidence that her son’s father is not involved in his care.[76]
[74] Ibid, P-23.
[75] Ibid.
[76] Ibid.
WVGM gave evidence that “over the years” she had been in an intensive care unit (ICU) “three times due to overdose”.[77] When asked whether the overdose was accidental or deliberate, WVGM said it was deliberate, and confirmed that it was three attempts at suicide.[78] She said that the first occasion was when “they had put me on NDIS”, the second occasion was when “they took funding off me”, and the last occasion was “about six weeks ago” when she received an email from the NDIA.[79]
[77] Ibid, P-24.
[78] Ibid.
[79] Ibid.
WVGM told the Tribunal that she had deteriorated “so much” in the two years. She explained that she had been diagnosed “a year and a half” ago by Dr Wong with “serious seizures” and that there were video recordings of her seizures which she had put into evidence. WVGM said her neurologist had requested that she record the seizures. The reference to Dr Wong was a reference to Dr David Wong, Neurologist, at Sunshine Coast University Private Hospital. So as not to confuse this doctor with Dr Patrick Wong, Psychiatrist, the Tribunal will refer to Dr David Wong in the Decision by his full name.
Dr Patrick Wong was called to give evidence at the hearing. He gave evidence that he had only seen WVGM on two occasions, the second occasion, for a brief time, when WVGM was admitted to the Sunshine Coast Private Hospital. Dr Patrick Wong said he had diagnosed WVGM with “functional neurological disorder” (‘FND’). He said WVGM had reported that she has had seizures, they could last up to three hours and that during the episodes, WVGM was semi-aware of things but not completely conscious. Dr Patrick Wong said WVGM did not have any seizures while she was at the hospital.
Dr Patrick Wong said they arranged for an MRI of WVGM’s brain and EEG. He said the results of those scans were “normal” which meant “you definitely know” the seizures are not “epileptic”.[80] He explained that for an EEG, which last for about 20 minutes, the chances of capturing an episode during the EEG are relatively low.[81] Mr Patrick Wong rated his suspicion that WVGM had FND as “high” and that this was based entirely on self-reported symptoms from WVGM.[82] Mr Wong stated he had not questioned the integrity of what WVGM had told him. He confirmed that his diagnosis of WVGM was not based on information about her seizures received from anybody else who had seen WVGM in the past.[83] The Tribunal questioned Dr Patrick Wong whether it was appropriate to make a diagnosis of only having spent a total of one hour and 15 minutes with a patient. Dr Wong took the point and said he had arranged to follow with WVGM, and that WVGM had told Dr Patrick Wong he would contact him when she was ready because WVGM had said she wanted to see the FND psychologist that Dr Patrick Wong had recommended to WVGM. When Dr Patrick Wong was asked by the Tribunal whether WVGM had ever followed this up, he responded, “I haven’t seen her since, so, no, I’m not aware of that specifically” and then he confirmed she had not followed him up.[84]
[80] Transcript Day 3, P-217.
[81] Ibid.
[82] Ibid, P-218
[83] Ibid.
[84] Ibid.
During cross-examination, Mr Blok referred Mr Patrick Wong to a letter from Dr Peter Georgius, Pain & Rehabilitation Specialist, to Dr Nizam Dastagir dated 10 July 2023.[85] This letter is marked at being copied to Dr Patrick Wong.[86] In this letter, Dr Georgius stated that he saw WVGM while she was inpatient for follow up of her lower back pain and that she had responded to a CT guided block but this was short-lived. He referred also to WVGM’s complex mental health history. He referred to WVGM having raised a question that a past EEG had demonstrated changes in the brain which may represent a past traumatic brain injury. However, Dr Georgius had noted that there is no known history of a traumatic brain injury event. Dr Georgius stated that WVGM had admitted to the use of recreational Cannabis in the past, off and on for the past few years, and that she had last used it 12 months ago. He said that WVGM had told him that it helped with her Tourette’s syndrome. Dr Georgius referred to WVGM having “ongoing severe pain” despite being on “an incredibly high dose of opiods. OxyContin 30mg BD and Endone 10mg, 4 hourly PRN x 4 doses today, giving a total dose of OxyCodone 100mg per day”. Dr Georgius stated that it is clear that WVGM’s pain is not responsive to opioids and that, “This has raised the possibility that she does have opioid induced hyperalgesia”. Hyperalgesia is an abnormally increased sensitivity to pain, which may be caused by damage to nociceptors and peripheral nerves and can cause hypersensitivity to stimulus.[87]
[85] This letter is found at the NDIA’s HTB at p.447 & 448.
[86] NDIA’s HTB, p.448.
[87] NDIA’s HTB, p.447.
Dr Georgius stated that he had had a “frank discussion” with WVGM and advised her the best course of action would be to “wean and stop her opioids” and this would be best achieved with the use of Ketamine (100mg subcutaneous infusion per 24 hours to continue during the period of weaning and stopping her opioids).[88] Dr Georgius requested a further review by Dr Patrick Wong and recommended a review also, by a psychiatrist while she is an inpatient. He stated that “we should place medical Cannabis on hold at the moment” and that it “is worthwhile to discuss at a future date, once she had engaged in regular therapy with a psychiatrist”.[89]
[88] Ibid.
[89] Ibid, p.448.
During cross-examination, Dr Patrick Wong said he had seen this letter. He said he could not recall if he saw WVGM before or after she saw Dr Georgius. Ms Blok took Dr Wong to Dr Georgius’ statement about WVGM being on an incredibly high dose of opioids and that possibility of opioid-induced hyperalgesia, and asked Mr Patrick Wong if this would influence his diagnosis of WVGM. Mr Patrick Wong responded that it would not, with the clinical history he had been given. He said that WVGM had reported discrete episodes where she is still aware of things but could not respond as normal. He then asked Mr Bok, “are you alluding to the fact that opioids can make you drowsy?” which indicated that Dr Patrick Wong may not have initially understood what “hyperalgesia” meant. Ms Blok checked his understanding about the meaning of this term at a later stage of his cross-examination, and he agreed that it meant pain induced by high opioid use. He said that “long-term use can increase sensitisation of your pain receptors, so you actually therefore have increased pain response”.[90] Dr Patrick Wong agreed that this “certainly may have been the contributor” of WVGM’s increased pain and that because she had more pain, it could “certainly have more weakness in the legs, that can lead to a fall, et cetera”.[91] Dr Patrick Wong gave evidence that if the high opioid use ceased, that he had seem some cases where there was an improvement in the pain intensity, although this does not always happen and does not affect the underlying reason for the pain the first place.[92]
[90] Ibid, P-222.
[91] Ibid.
[92] Ibid, P-223.

Ms Blok asked Dr Patrick Wong whether a person with FND would have an increased risk of falls. Dr Patrick Wong responded that a person who has an episode of dissociation without warning, could lead to a fall. He qualified that some of his other patients with FND are not affected in that way, so they do not have an increased risk of falls.[93]
[93] Ibid, P-220.
Dr Patrick Wong confirmed, following a question from Ms Blok, that he could not draw a connection between FND and any falls which WVGM had been experiencing. He said that he did not recall that the FND had caused falls but had dissociations.[94] Dr Patrick Wong accepted that opioid use could impair one awareness and can increase the risk of falls and this would need to be taken in account if drawing a link between FND and the falls WVGM had been experiencing.[95]
[94] Ibid, P-221.
[95] Ibid.
Ms Blok asked Mr Patrick Wong whether the result of his physical examination of WVGM had revealed any abnormalities. He answered that in the context of pain limiting the examination, he could not find any other objective evidence of any “hardware issues in the brain or spine”, nor could he find an “physical reason on the exam” or neurological reason to explain why WVGM was falling over. He qualified this by saying that strength in the lower limbs can give way, if the pain is intense, which would increase the risk of falls.[96]
[96] Ibid, P-222.
WVGM gave evidence that from the age of nine, her son has had to “bathe me, wash me, clean me up, put me in the shower, feed me”.[97] This statement is at odds with the evidence of significant NDIS funding (over)expenditure by WVGM to engage support workers to assist her since she became an NDIS participant since August 2021, with activities of daily living which includes the personal care activities referred to in the above sentence.
[97] Transcript Day 1, P-24.
WVGM’s gave the following evidence about the impacts of her Tourette’s:[98]
You know, my Tourette’s – I can’t have knives. I can’t have scissors. And I throw things. I hurt people. Not by meaning to; it’s just a reflex.
[98] Ibid, P-24.
WVGM acknowledged that her NDIS funding was “Agency-managed”. She said she wanted to “get out of” being agency managed, because it was costing her too much money.[99]
[99] Ibid, p-25.
WVGM was asked about the diagnoses of “bipolar affective disorder” as reported on the medical records from Morayfield Medical Centre. WVGM confirmed that two doctors from this clinic had treated her, including her current doctor, Dr Swart. WVGM said she had been trying to have that stated diagnosis taken off (of her medical records) for years. When asked how it got onto her record, WVGM stated that her doctor wanted her to trial some medication and to do so under the Prescription Benefits Scheme (‘PBS’), he had written down this diagnosis. The Tribunal asked WVGM if she considered that she had this condition of bipolar affective disorder, and her answer was “No”.[100]
[100] Ibid, P-45 & P-46.
Information on WVGM’s Access Request Form
WVGM signed an NDIS “Access Request Form” on 24 June 2021.[101] It was also signed by Dr Patrick Wong, Psychiatrist, on 25 June 2021.[102] On this form, Dr Wong was prompted to list WVGM’s “primary disability and any secondary disabilities”. He referred to them as being Complex PTSD, MDD, borderline personality disorder, and “Tourettes”.[103] Dr Wong did not list any other “disabilities”, impairments, or conditions, on this form. Dr Wong listed WVGM’s medications as including Mirtazapine, Benztrop, Cavstat, Clonidine, Enlafax, Esomeprazole, Lithicarb, Logem, Palexia, Paaxam, Prazosin, Rixadone and Zypine.[104]
[101] WVGM’s Access Request Form lodged with the Tribunal on 3 July 2024, p.8.
[102] Ibid, p.7.
[103] Ibid, p.5.
[104] Ibid, p.5.
Dr Wong certified, on this form, that WVGM required assistance with undertaking activities of mobility/motor skills, communication, social interaction, learning, self-care, and self-management. In relation to “mobility/motor skills”, there are statements on the form to the following effect:
(a)WVGM experiences extreme levels of fatigue on a daily basis affecting her ability to mobilise, due to her psychosocial impairments;
(b)WVGM is unable to walk from her house to her mailbox without resting;
(c)WVGM spends the majority of her time laying on her sofa and will only get up to make herself a drink “very rarely” throughout the day;
(d)WVGM can spend up to a month at a time confined to her sofa and cannot brush her hair or shower during these times;
(e)WVGM is unable to drive due to her impairments and cannot access the community without support. She is unable to drive her son to school or any other activities;
(f)WVGM gets all of her shopping delivered to her and attends all of her medical appointments by telephone;
(g)WVGM is unable to use public transport regularly because she experiences paranoia and extreme anxiety; and
(h)WVGM is unable to use stairs safely without support as she lacks balance and stamina and this limits her ability to leave her current residence.
Dr Wong’s statements were at odds with the evidence given by WVGM at the hearing confirming her involvement in certain physical activities as recorded in some of the documents which had been produced under summons to the Tribunal. WVGM agreed that she would go fishing with her son when she can, but that she does not go as often as she would like to.[105] She also confirmed that she had been to Maleny to do “pottery and yoga”.[106] WVGM gave evidence that she had been assisted to go on a tour which involved kayaking with dolphins and she would like to be supported to do so again.
[105] Transcript Day 4, P-41.
[106] Ibid, P-42.
In relation to “self-management”, there is a statement on the Form that due to WVGM’s impairments, she is unable to manage her finances effectively or to maintain a budget and had to be declared a bankrupt five years ago.[107]
[107] WVGM’s Access Request Form lodged with the Tribunal on 3 July 2024, p.7.
Evidence at the hearing by WVGM’s current treating general practitioner, Dr Swart
Dr Swart gave evidence on the last day of the hearing. He said he practises at his clinic, that is, Bertha Street Medical and Dental Clinic, in Caboolture.[108] Dr Swart gave evidence that WVGM has been diagnosed previously with having bipolar affective disorder and “there’s sometimes been questions about bipolar-borderline personality disorder and having dissociative seizures and functional neurological disorder and PTSD and then a, you know, tic disorder, which has been called Tourette’s disorder as well. And then she’s had – also had a suprapubic catheter recently”. Dr Swart said he was unsure whether this was because of WVGM’s “bladder dysfunction due to endometriosis surgery and things she’s had”.[109]
[108] Transcript Day 4, P-11.
[109] Transcript Day 4, P-13.
Dr Swart was asked whether WVGM had a brain injury (as had been asserted by WVGM). He said he was not aware of her having such an injury. Based on this evidence, the evidence of Dr Patrick Wong and Dr Georgius referred to above, and the absence of any cognitive test results, the Tribunal finds that WVGM does not have an acquired brain injury which has resulted in any cognitive functional impairment.
Dr Swart gave evidence to the effect that WVGM does not suffer from epileptic seizures. When asked whether WVGM suffered from any “non-epileptic seizures”, Dr Swart answered:[110]
DR SWART: I don’t know, because, basically, I’ve never seen her have a seizure, but she does mention that she has seizures. And on her medical conditions list from – which was at one of her hospital admissions, it says that she has – likely has dissociative seizures and functional neurological disorder. So – I mean, that’s possible to be related – like, I’ve not seen evidence of – well, I haven’t seen her have a seizure before, but she has mentioned that she has seizures.
MS BLOK: Yes. All right. And do you see any report from any neurologist in relation to a functional neurological disorder?
DR SWART: No, I’ve not seen a report like that. I’ve just seen it in the list of things from the My Health label.
[110] Ibid.
Ms Blok referred Dr Swart to his letter dated 22 November 2023 to Dr Paul Frank, Pain Specialist[111] and asked him why this referral had been made. Dr Swart said WVGM was on “high doses of pain medications” and “she has chronic pain”. He said this was “definitely something that should be managed by a pain specialist, because otherwise we just basically giving them medication without, you know, getting to the bottom of things. We have to try and get her a plan of what to do”.[112]
[111] NDIA’s Supplementary HTB, p.74.
[112] Transcript Day 4, P-15.
Dr Frank sent a letter to Dr Swart dated 18 January 2024 advising that WVGM has failed to attend Dr Frank’s clinic.[113]
[113] NDIA’s Supplementary HTB, p.81 and Transcript Day 4, P-16.
Ms Blok referred Dr Swart to a further letter by him dated 17 March 2024 referring WVGM, again, to see Dr Frank.[114] Ms Blok referred Dr Swart to a medical note of Dr Shea’s dated 14 February 2023 stating that there was a telehealth call with Dr Frank and asked Dr Swart if he could say the extent to which WVGM had engaged with Dr Frank. Dr Swart said he did not know. He said he had not seen any letters from Dr Frank, or treatment plans or anything. He said he did not think WVGM had engaged “a lot” with Dr Frank.[115]
[114] Ibid, p.96 and Transcript Day 4, P-16.
[115] Transcript Day 4, P-16.
In re-examination of Dr Swart, WVGM stated, when asking him a question, that she had seen Dr Frank while she was in a private hospital and she said she had been discharged from that hospital and was now “under the Dr Hafeez”. She said she had only just started this and referred to “CBD oil”. She said she was on “a lot of pain medication” although not as much as she used to be on.[116]
[116] Ibid, P-32.
When Dr Swart was asked if he was concerned about the levels of medication and high doses of medication WVGM had been taking, he gave evidence that he was concerned about this. Dr Swart said that WVGM is on a “really high level of pain medication”. He said he did not think her pain medication is adequately managed at the moment and that she has a “complex medical condition, which I think is challenging to manage”.[117] Dr Swart agreed when taken to the records, that WVGM was on a “staged supply” of Palexia in June 2023, which he described as follows:[118]
Basically, the staged supply would be if there was a concern that she would take more of the medication than was prescribed, so then they would only provided [sic] a certain number of tablets so that she wouldn’t take excessive amounts of the medication. But I don’t – but she’s not on the staged supply anymore.
[117] Ibid, P-16.
[118] Ibid, P-17.
Ms Blok took Dr Swart to his note for the consultation with WVGM on 25 January 2024 and the statement he had made in the note to “Opioid dependence”, with a note underneath “borderline personality disorder”. When asked whether he would agree that WVGM has a dependence on opioids, Dr Swart answered: “Yes, I would agree with that”.[119] The Tribunal asked Dr Swart to explain what the reference in this note to “polypharmacy overdose” meant. Dr Swart answered as follows (emphasis added):[120]
But basically, with the polypharmacy thing is, she has had events where she’s gone to a hospital where she’s been diagnosed with an overdose of medication. And that possibly is related to the fact that she is on many medications, and she is taking high doses of them. So there’s – so the thing is that’s not the same as a – that’s not the same as an overdose to intentionally kill yourself, it’s more like a taking too much medication because of different conditions and taking medication incorrectly. She does have depression and mental health conditions, so it’s also possible – you know, there’s also a possibility of taking an overdose intentionally, but that’s not what the polypharmacy overdose means.
[119] Ibid, P-17.
[120] Ibid, P-18.
WVGM stated during re-examination of Dr Swart that:[121]
The staged supply, about two or three years ago, I took an overdose of my Webster-paks and ended up in ICU for two weeks, and that was at the start of the NDIS tribunal, and I think that’s why they did the staged supply on one, but I wasn’t – I didn’t want to die, it was just I’d taken my night’s medication twice. That’s all that that was.
[121] Ibid, P-32.
Dr Swart remarked during cross-examination that he was concerned that WVGM was asking for a lot of medication and this was the main concern they had, and they wanted to control her pain situation.[122]
[122] Ibid, P-19.
Dr Swart gave evidence that he definitely thinks that it would be beneficial for WVGM to engage with a psychologist and a psychiatrist. He described WVGM as having “chronic mental health conditions”.[123] He said he did not think that WVGM was engaging with a psychologist or a psychiatrist at the present time. He said that WVGM has had a few hospital admissions and has engaged with the “hospital psychiatrist”.[124]
[123] Ibid, P-25.
[124] Ibid.
Dr Swart was taken to Dr Georgius’ letter referred to in paragraph [81] above, stating his opinion that there will be an increased risk of falls where there is high opioid use. Dr Swart stated there “There is definitely an increased risk in falls”.[125]
[125] Ibid, P-26.
Dr Swart was asked by Ms Blok to provide evidence about, or any information about WVGM, and any falls risks of which he is aware. He said (emphasis added):[126]
Well, I definitely think that her medication is a falls risk, because she’s on high doses of opiate medications, which definitely is a falls risk. Then, I mean I think that just the catheter is probably a falls risk because that could get tangled up with things. And, yes, I think that both of those things probably increase the risk of falls.
[126] Ibid, P-26.
Dr Swart was asked if there were any reasons why WVGM was unable to spend periods of time alone. He answered, “No, I’m not aware of a condition why she can’t spend periods of times alone”.[127] Dr Swart was asked if there was any reason why WVGM cannot prepare food for herself, he answered, “I’m not aware of the reason she can’t prepare food”. Dr Swart said he thinks WVGM is able to shower herself.[128] Dr Swart indicated it was “very difficult” for him to say how many hours of care WVGM needed or to specify the things she needed help with.
[127] Ibid, P-30.
[128] Ibid, P-30.
The Tribunal notes the following exchange between Ms Blok and Dr Swart at the hearing (emphasis added):[129]
MS BLOK: [WVGM] had an assessment by an occupational therapist, and one of the comments the therapist made was this:
Overall, the examination findings paint a picture of someone who is entrenched in illness and disability, and due to her disability, she sits for the majority of her day. Overtime, this has led to weakness in her lower limbs and subsequent reduced mobility.
MS BLOK: And there is a real concern expressed by this occupational therapist that more care will lead to deskilling and deconditioning, and I wanted to ask you for your opinion as to that?
DR SWART: Well, I agree with that. I definitely agree with that. The thing is, I think that a big – the thing is, like, a bit part of the problem is that she is in a situation where she feels she – so there’s definitely things she can’t do, but she probably feels that she can’t do more things than she might be able to otherwise do. Yes, I think that – I don’t necessarily think that she needs 24-hour care. But like I said, I think that’s a very difficult one.
MS BLOK: Would you agree that the tribunal – when it comes to her particular care needs and overnight, for example, or during the day, the tribunal is best placed to rely on the evidence of the occupational therapist who’s assessed her?
DR SWART: Yes, I think that basically – in terms of her care needs overnight and so on, that’s – you’ll have to rely on the occupational therapist. I mean, we would send someone to an occupational therapist for an opinion of what their care needs are. The thing is, her care needs is what the occupational therapist would say they are.
[129] Ibid, P-31.
Request for increased hours of support worker assistance
The NDIA does not dispute that WVGM requires support worker assistance. The NDIA has approved funding in WVGM’s Current NDIS plan, at a substantial level which will provide her with 12 hours of support worker assistance per day during the daytime and in the evening (but not overnight). The 12 hours comprises of nine hours per day to assist WVGM with activities of daily living and a further three hours per day to access the community. The NDIA is concerned that the approval of funding for 24 hours of support worker assistance for WVGM, as requested by her, would conflict with her stated goal of aiming to achieve “greater independence” and would not promote her social and economic participation.
Whether support worker assistance for WVGM is a reasonable and necessary support taking into account the NDIS Act as a whole
Public Trustee of South Australia stands as authority for the proposition that the Tribunal is required to consider, as a first stage, whether support worker assistance is a reasonable and necessary support in light of the provisions of the NDIS Act as a whole, including guiding principles set out in s 4 of the NDIS Act.
Stated objectives under s 3(g) the NDIS Act include to promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community. The guiding principles in s 4 of the NDIS Act include the following further principles:
(a)in s 4(1), which provides that people with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional, and intellectual development;
(b)in s 4(3), which provides that people with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime;
(c)in s 4(12), which provides that the role of family, carers, and other significant persons in the lives of people with disability is to be acknowledged and respected; and
(d)in s 4(16), which provides that positive personal and social development of people with disability, including children and young people, is to be promoted.
In light of the provisions of the NDIS Act as a whole, the Tribunal is satisfied that the provision of support worker assistance to WVGM could be a reasonable and necessary support in respect of her individual circumstances, as the provision of such support is aligned with the objectives and principles stated above.
Whether support worker assistance meets the criteria under s 34(1) of the NDIS Act
The Tribunal will now proceed, as a second stage, as articulated in the decision of Public Trustee of South Australia, to consider whether all of the mandatory criteria under s 34(1) of the NDIS Act are met.
To consider this request for support, the NDIA contends that the Tribunal would need a greater understanding about WVGM’s diagnoses, the risks of her remaining alone overnight, and how she was using her capacity building supports, and in particular, her psychologist.[130]
[130] Transcript Day 1, P-13.
On the first day of the hearing, Ms Blok addressed WVGM’s request for support worker assistance and contended as follows (emphasis added):[131]
It’s incongruent with developing independence, doesn’t support social and economic participation, even if largely overnight, and funding for community activity is rarely provided, and, as we understand it, it’s not being utilised for that purpose. A key reason is also that we understand the applicant is not using the psychological supports as provided and building capacity.
And rather, there is an increased sought for core supports, which appears to be possible [sic] entrenching a pattern of illness and leading to further weakness in her limbs, illness and reduced mobility and disability, as well as potentially entrenching a downward pattern of psychological health – ill health.
[131] Ibid, P-14.

Dr Swart gave evidence that WVGM can empty the catheter herself. He explained “You just open a valve, and it should empty”.[260] She confirmed this is done over a toilet or a bucket.
[260] Ibid, P-21.
Dr Swart agreed that there was a level of care that needed to be taken to manage the catheter wound. He said that whether a patient could do this themselves would vary from patient to patient.[261] He said it is usually done by other people, because a patient is “often squeamish with wounds”.[262] Dr Swart said:[263]
Normally if you have a suprapubic catheter you tend to have less mobility, and it would be more difficult for you to do it and to see what’s going on in your stomach. You know you’d have to sort of comport yourself to do that. I think that the suprapubic catheter is pretty difficult to do on yourself.
[261] Ibid.
[262] Ibid, P-22.
[263] Ibid.
When Dr Swart was asked how frequently a catheter wound is cleaned, he gave the following explanation (emphasis added):[264]
Well it would depend. Basically normally if the wound – if everything’s going well, so if the wound heals and suprapubic catheter – the wound gets recanalized with epithelial cells, then it should be not causing too much problems then you could possibly just clean it once a day. But it’s not like an intense process. But if there is a chronic infection in the wound, or like pressure injury due to the catheter, then that might require, you know, treatment with wound ointment or wound care or something like that. So it would depend on the different stages of process.
[264] Ibid.
When Dr Swart was asked if he is aware why a nurse might be required to manage WVGM’s wound on a regular basis, he offered the following explanation:[265]
Well, she has ongoing pain in the wound and the wound is inflamed and she’s had a colonisation with pseudomonas bacteria which has been ongoing since last year, so it’s not been an easy – you know, she hasn’t had suprapubic catheter and then had no problems. She’s basically had ongoing problems with it.
[265] Ibid.
Dr Swart expressed his opinion that WVGM could either attend upon a nurse or a nurse could go to her home to attend to her wound. He said it was an option for WVGM to attend a nurse at a GP practice.[266] He gave evidence that if the wound was a “really bad wound”, it would need cleaning daily and if it is not, it could be cleaned every few days. [267] He said it was not “static” and would “depend”.[268] Dr Swart confirmed that WVGM would be able to attend his surgery and see the nurse. He said that WVGM usually attended his clinic once a week. When asked whether he agreed that there was no reason why WVGM could not come to his surgery to have the wound cleaned every day, or second or third day, he said the reason “would probably be it would be very expensive for her to drive…” and that she would need to drive there. He said they are not really set up to undertake chronic care for catheters. He said that WVGM already pays for one consultation per week and if she attended two or three times per week, it would be more expensive.[269] Dr Swart gave evidence that the best community services would be a community nursing service. He said he was unaware of the cost of such services.[270]
[266] Ibid.
[267] Ibid.
[268] Ibid, P-23.
[269] Ibid, P-24.
[270] Ibid.
Dr Swart agreed with a proposition put to him that a support worker could be upskilled or trained to manage a wound.[271]
[271] Ibid, P-29.
During re-examination of Dr Swart, WVGM stated:[272]
Sometimes I can change my catheter and sometimes I can’t. It’s hard to say. If I was to show you my catheter, my SPC site now, you would say it’s infected because it’s got the pseudomonas colonisation, and the last thing my nurse said to me when I had to get an ambulance last week when she couldn’t get it in, that I had to go to hospital, and they’ve since – I got told today that they’re going to stop helping me and I’ve lost that funding with them because they can’t get any funding from the NDIS, and so that would mean that I would have to go somewhere three times a day. And to be honest, if I was going to do that, I’d rather be in the grave.
[272] Ibid, P-33.
In Ms Swann’s Report, she recommended that WVGM should receive fortnightly nursing support inclusive of SPC care. The NDIA contends that it would effective and beneficial for WVGM’s support workers to be upskilled to clean and care for WVGM’s wound and that the changing of the catheter is a clinical matter and not “the responsibility of the Agency”. In the NDIA’s Supplementary Submission, it highlighted the following evidence:
(a)WVGM gave evidence that her carers cleaned her wound three times a day and that she required a nurse to change her catheter every three to four weeks;[273]
(b)Ms FS gave evidence that she was shown how to undertake care of the SPC wound by a nurse at the hospital and it was “not that difficult”;[274]
(c)Dr Shea gave evidence that WVGM could manage her wound;[275]
(d)Dr Swart agreed with a proposition put to him by Ms Blok that there was no reason a support worker could not be upskilled to provide the care needed to manage WVGM’s supra catheter wound,[276] however, he also gave evidence that in the case of an infected wound, a nurse would be required. Dr Swart had noted that WVGM attended her GP every week and that she could attend a nurse at a GP practice;[277]
(e)Dr Swart gave evidence that a catheter is supposed to only be changed every six to three months and that service is normally organised by the hospital system or by home nursing services.[278]
[273] Transcript Day 4, P-44 & Day 2, P-121.
[274] Transcript Day 2, P-195.
[275] Transcript Day 3, P-251.
[276] Transcript Day 4, P-29.
[277] Ibid, P-22 & P-23.
[278] Ibid, P-21.
Section 34(1)(aa)
The first criterion under s 34(1)(aa), requires the Tribunal to be satisfied that the support is necessary to address the needs of a participant arising from an impairment in relation to which they meet the disability requirements under s 24 of the NDIS Act or early intervention requirements under s 25.
In the NDIA’s Final Submission, it states that WVGM was granted access to the NDIS for complex PTSD and was also diagnosed with MDD, borderline personality disorder and Tourette’s syndrome. The NDIA defined those as the ‘access impairments’.[279] When addressing the newly introduced, s 34(1)(aa) criterion in the NDIA’s Final Submissions, it did not deal, specifically, with the request for nursing services for catheter care.
[279] NDIA’s Final Submissions, [23].
The Tribunal is satisfied that WVGM’s need for nursing services for catheter/wound care do not arise from her impairments to which are attributable to a psychosocial disability. The Tribunal has been informed the catheter was inserted due to bladder issues arising from WVGM having had a hysterectomy due to cervical cancer. There is a paucity of evidence before the Tribunal about this but the NDIA did not challenge WVGM’s evidence that she had cervical cancer, the resulting hysterectomy and that she has had issues with her bladder function. On this basis, and while further review of this situation may be warranted at some point in the future, the Tribunal is satisfied for present purposes that her need for nursing services for catheter/wound care arises as a result of physical impairments in relation to her bladder function which would meet the disability requirements under s 24 of the NDIS Act.
The Tribunal concludes that the criterion under s 34(1)(aa) of the NDIS Act is met.
Section 34(1)(a)
The second criterion under s 34(1)(a) requires the Tribunal to be satisfied that the support will assist a participant to pursue their goals, objectives, and aspirations in their NDIS plan. WVGM’s NDIS goals are set out in paragraph [45] above and those goals include to live as independently as possible in WVGM’s new home, and to increase her ability to complete self-cares regularly and increase her wellbeing to reduce hospital admissions. The Tribunal finds that the provision of an aggregate of 13 hours per annum of catheter care by a nurse to WVGM, will assist her to pursue those goals. The Tribunal concludes that the criterion under s 34(1)(a) is met in respect of this requested support.
Section 34(1)(b)
The third criterion under s 34(1)(b) requires the Tribunal to be satisfied on the evidence that the support will assist a participant to undertake activities so as to facilitate their social and economic participation. The Tribunal finds that if WVGM’s catheter and wound is maintained in an optimal way, this will assist WVGM to be well enough to undertake activities outside of the home to increase her social and economic participation. If WVGM is unwell as a result of inadequate catheter care and resulting infection, this will decrease WVGM’s involvement in such activities. The Tribunal concludes that s 34(1)(b) of the NDIS Act is met in respect of the request for nursing services for WVGM’s catheter care.
Section 34(1)(c)
The fourth criterion under s 34(1)(c) requires the Tribunal to be satisfied that a 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. During the hearing, Dr Swart was asked whether, as alternative, WVGM, might have her catheter care attended to when she visited his medical clinics for appointments. Dr Swart explained that catheter care could be attended to by a support worker but qualified this by stating that if the wound was infected this should be attended to by a nurse. The Tribunal accepts this evidence. The Tribunal accepts that there have been particular issues experienced by WVGM with her catheter wound and frequent infections. For this reason, the Tribunal is satisfied that WVGM requires fairly regular access to nursing services to check the wound for infection and to provide nursing services in relation to the wound as required.
The only other “alternative” considered was whether WVGM should attend to her own catheter care needs with or without assistance by her support workers. The Tribunal has found that while it appropriate that the support workers provide some of the catheter care to WVGM, based on Dr Swart’s evidence, it is appropriate that WVGM be provided with catheter care to assist her to change her catheter periodically and to check for infection. For this reason, the Tribunal finds that 13 hour of catheter care services by a nurse, as originally proposed by the service provider, Sunshine Coast Nurse, represents value for money as defined with s 34(1)(c). This will allow a visit approximately once a month (if they are hour long sessions) or once a fortnight (if they half hour sessions) and an additional hour for annual report writing and/or clinical note taking.
The Tribunal concludes that the criterion under s 34(1)(c) is met.
Section 34(1)(d)
Section 34(1)(d) requires the Tribunal to be satisfied that a support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice. Based on the evidence given by Dr Swart, the Tribunal is satisfied that the provision of nursing services to periodically change WVGM’s catheter and to check the wound for infection, will be effective and beneficial for WVGM having regard to current good practice. The provision of such services to persons with catheters is commonplace in the community.
The Tribunal concludes that s 34(1)(d) of the NDIS Act is met in respect of the provision of 13 hours per annum of nursing services for catheter care to WVGM.
Section 34(1)(e)
Section 34(1)(e) requires the Tribunal to be satisfied that the funding takes into account what it is reasonable to expect families, carers, informal networks, and the community to provide. The Tribunal has found that it is reasonable to expect that WVGM’s support workers will provide some of the catheter care to WVGM and based on the evidence of Ms Sharma at the hearing, this has been the case. However, based on the evidence of Dr Swart, the Tribunal is satisfied that even after taking into account such assistance by WVGM’s support worker, that WVGM requires 13 hours of nursing services per annum to provide for periodic opportunities for her catheter to be changed and for the wound to be checked for infection.
The Tribunal concludes that this criterion under s 34(1)(e) is met.
Section 34(1)(f)
Section 34(1)(f) as amended requires the Tribunal to be satisfied that a support is “an NDIS support for the participant” as prescribed under Schedule 1 to the Transitional NDIS Supports Rules. At the present time, the Tribunal is also required to be satisfied that this support is most appropriately funded under the NDIS and not more appropriately funded under some other support system.
Dealing with whether these nursing services are “an NDIS support”, in the NDIA’s Final Submission, it contended that “catheter items” should be excluded for the following reason:[280]
Catheter items are health products and fall with item 12(e) of Sch 2:
equipment or assistive products prescribed or issued as a result of clinical care, treatment or management from a medical practitioner and then delivered in the clinical setting, unrelated to the person’s disability
[280] NDIA’s Final Submission, [33(3)] and [34].
The Tribunal notes that Item 12 of Schedule 1 includes “community nursing care” as a category and this support is described as follows:
Supports that provide disability-related nursing care for participants with high care needs (not including high intensity daily personal activities), requiring a high level of clinical skill.
This includes the following:
(a) catheter care;
(b) skin integrity checks;
(c) tracheostomy care;
(d) medication management;
(e) intramuscular injections;
(f) training of support workers to respond to a participant’s complex needs.
WVGM’s request for nursing services for catheter care fall into subparagraph (a) and potentially (b) and (f) of Item 12. The Tribunal finds that this requested support is “an NDIS support”. The Tribunal also finds that this support is not more appropriately funded under another service system based on Dr Swart’s evidence to the effect that it would not be feasible for his clinic to provide WVGM with this intensity of nursing care by the nurses at his clinic under the Medicare system. The NDIA did not tender any evidence in relation to 13 hours per annum of nursing services for catheter/wound care would be available to a person through another program or general service system.[281]
[281] NDIA’s Final Submissions.
Based on these findings, the Tribunal is satisfied that the requested nursing services for catheter care meets the criterion under s 34(1)(f) of the NDIS Act. This does not extend to the cost of any travel undertaken by the nurse, which should not be funded under the NDIS because the Tribunal has found that WVGM is capable of being taken by her support workers to a nurse to receive such services.
Conclusion in relation to the request for nursing services
The Tribunal has concluded that funding for the provision of 13 hours of nursing services for catheter care, meets all of the mandatory criteria under s 34(1) and is a “reasonable and necessary support” for WVGM for which she should be funded under her NDIS plan.
PLAN MANAGEMENT ISSUE
Under s 33(2)(d) of the NDIS Act, a participant’s SOPS is to specify the management of the funding for the supports under the plan. Section 42 of the NDIS Act defines “managing the funding for supports under a participant’s plan” as doing one or more of: purchasing any supports funded under the plan or receiving, managing, or acquitting any of the funding under the plan. As relevant to this case, the SOPS must specify whether such funding is to be managed wholly, or to a specified extent, by the participant, a registered plan management provider or the NDIA.[282]
[282] Refer s 42(2) of the NDIS Act.
In the case of an adult participant, s 43(1) and (2) provides that a participant, may make a “plan management request” for the plan to be managed, wholly, or to the extent specified by them, by the person themselves, a plan manager, or the NDIA. Section 43(4) provides that that if a participant makes a plan management for the funding to “plan-managed”, and s 44(2) applies in respect of the plan management service provider (that is, the plan manager), the SOPS must provide for the funding to “Agency-managed”.
Section 44(2) of the NDIS Act is reproduced below (bold emphasis added):
(4)For the purposes of paragraph 43(4A)(b), this subsection applies in relation to a registered plan management provider if the CEO is satisfied that the provider’s management of the funding for supports under the plan to a particular extent would present an unreasonable risk to the participant.
As explained above, WVGM has made a plan management request. She has requested that the funding approved in WVGM’s next NDIS plan be “plan-managed”. The Tribunal will now consider whether either s 44(2) applies in WVGM’s case.
The NDIA highlights that the documents it prepared showing the breakdown of supports and expenditure from WVGM’s previous NDIS plans, demonstrate that on several occasions, the funding had been depleted well before the schedule review date of the plan. Ms Blok said the NDIA has topped up the funding awaiting the decision by this Tribunal but it could not continue to do so. The NDIA contended that this gave rise to a “risk of financial harm” to WVGM.[283]
[283] Transcript Day 1, P-15.
The NDIA informed the Tribunal this was the reason why the notional duration of WVGM’s NDIS plans was reduced to six months (previously, it was two years). Ms Blok informed the Tribunal that the plan management setting in relation to funding for core support for assistance with ADLs was changed to “Agency-managed” in November 2023 (that is, in the Nineth SOPS and subsequent SOPS),[284] and the NDIA also included funding for Level 3 support coordination (it was previously Level 2), to assist WVGM to have “more support in terms of understanding the plan”.[285] Finally, the NDIA also informed that Tribunal that WVGM had been “advised” several times about her obligations under s 46[286] of the NDIS Act (in relation to expenditure of NDIS funding).
[284] Ibid, P-16. Ms Blok highlighted that the funding for assistance with community access stayed the same and was to be “plan-managed”.
[285] Transcript Day 1, P-21.
[286] Ms Blok referred to s 36 at the hearing but it is clear from the context of the Tribunal’s question, that she intended to say s 46.
On the second day of the hearing, WVGM said she spoke to her plan manager, “MyPlanSupport” (‘MPS’) about once a month. She confirmed that MPS had been her plan manager “all the way along”. When WVGM was asked whether anyone had contacted her when her NDIS funds were getting low, WVGM said, “No one does”.[287] WVGM confirmed that she had no idea what was in her plan and how much money was in it.[288] She described being shocked to get a call from “someone” in the afternoon to be told the funding has run out and that this causes her “anxiety”.
[287] Transcript Day 2, P-112.
[288] Ibid.
The Tribunal considers that the history of expenditure of WVGM’s NDIS approved funding speaks for itself. Over a period of almost two years, it has been consistently and repeatedly depleted well before the review date of the plan as set out above in paragraphs [21] to [37]. This has required the NDIA to approve a new SOPS for WVGM so as to “top up” her funding so that she is not left without core supports for activities of daily living.
Based on this history, the Tribunal finds that if the funding in WVGM’s plan is specified as being “plan managed” for her core support funding with activities of daily living, it is likely to lead to the result that the funding will be expended prematurely in a manner which is not aligned with WVGM’s NDIS plan. The Tribunal finds that if WVGM’s NDIS funding is “plan managed” in relation to such funding, it would present a unreasonable risk of harm to WVGM being that the funds are likely to be depleted early, with no regard for the provisions in her NDIS plan nor her obligations under s 46. WVGM could be left without supports should the NDIS elect not to approve a new plan for her before the review date to “top up” the funding, which it is entitled to do. This would be contrary to WVGM’s interests.

For this reason, the Tribunal refuses WVGM’s plan management request and has decided not to change the plan management settings in her Current SOPS in respect of the core support funding for activities of daily living. Accordingly, the funding in WVGM’s new SOPS approved in accordance with the Direction of the Tribunal for core supports for assistance with daily living, is to remain “Agency-managed” and all other plan management specifications are to remain the same.
CONCLUSION
The Tribunal sets aside the Decisions Under Review and remits this matter to the NDIA for reconsideration in accordance with a direction that within 14 days of the date of this Decision, the NDIA must facilitate the approval of a new statement of participant supports for WVGM (‘New SOPS’), containing the following provisions:
(a)a provision to approve funding for the following supports:
(i)13 hours per annum of nursing services (excluding any travel by the nurse to provide those services, which are not to be funded under the NDIS), to assist the Applicant with her catheter/wound care;
(ii)replication of all existing supports in WVGM’s Current SOPS, except for any one-off funding which has already been expended by WVGN (or anyone else on her behalf);
(b)a provision specifying that the funding approved for WVGM in accordance with this Direction, be the same as specified in her Current SOPS; and
(c)a provision specifying that subject to the operation of the NDIS Act, WVGM’s NDIS plan is to be reassessed on or before the 12-month anniversary of the date of approval of the New SOPS.

Date(s) of hearing: 2, 3 and 4 July 2024 and 27 August 2024

Date final submissions received: 10 December 2024

Applicant: In person, with support from
Ms Gabel, Disability Advocate

Counsel for the Respondent: Ms Natalie Blok

Solicitors for the Respondent: Makinson D’Apice Lawyers

Details

AGLC: WVGM and Chief Executive Officer of the National Disability Insurance Agency (NDIS) [2025] ARTA 47
Case: [2025] ARTA 47
Decision Date: 21 January 2025

CaseChat Overview and Summary

In the case of WVGM and Chief Executive Officer of the National Disability Insurance Agency (NDIS), the primary dispute involves the adequacy and management of funding for the applicant's core supports and other requested supports under the National Disability Insurance Scheme (NDIS). The applicant, WVGM, sought a review of the decisions made by the National Disability Insurance Agency (NDIA) regarding her NDIS plan, specifically the approval and funding levels of her Statement of Participant Supports (SOPS). The matter was heard and determined by the Administrative Review Tribunal.

The key legal issues the court was required to decide included whether the requested supports were "reasonable and necessary" under the NDIS Act and its associated rules, and if so, the level of funding required. Additionally, the court had to determine the date by which the NDIA must reassess the new plan and how the funding for core supports should be managed. This involved assessing the applicant's conditions, including major depressive disorder, obsessive-compulsive disorder, borderline personality disorder, post-traumatic stress disorder, anxiety, scoliosis, diabetes Type II, high blood pressure, Tourette's syndrome, cervical cancer, hysterectomy, bladder issues, and claims of physical, cognitive impairments, and an acquired brain injury.

The court's reasoning focused on the evidence provided by the applicant and the NDIA, including medical records, clinical handover letters, and various guidelines issued by the NDIA. The Tribunal noted that the applicant's core support funding was fully depleted within seven months of the approval of her second SOPS. The court found that the NDIA's internal review decision did not adequately address the applicant's needs, and the approval of the third SOPS replicated the funding levels of the second SOPS without adequately considering the applicant's evolving needs. The Tribunal concluded that the requested supports were reasonable and necessary, and directed the NDIA to facilitate the approval of a new SOPS containing certain provisions.

The final orders of the court included setting aside the Decisions Under Review and remitting the matter to the NDIA with a direction to approve a new SOPS for the applicant. The Tribunal also directed that the reassessment date for the new plan be determined and that the funding for core supports should be managed in a manner that adequately addresses the applicant's needs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The issues arising for determination by the Tribunal in this application are:(a)whether each of the Requested Supports are “reasonable and necessary supports” under the relevant provisions of the NDIS Act and its associated rules, and should be funded under the NDIS, and if so, at what level or intensity;(b)if a new SOPS is approved for WVGM as a consequence of this Decision, to determine:(i)the date by which the NDIA must reassess the new plan (‘Reassessment Date’); and(ii)how the funding under WVGM’s NDIS plan for core supports in respect of activities of daily living should be managed (specifically, whether the Tribunal should accept WVGM’s plan management request that this funding be “plan-managed”, or “Agency-managed” as currently specified by the NDIA). EVIDENCE, SUBMISSIONS AND HEARINGEvidence Before the commencement of the hearing, the NDIA lodged the following documentary evidence with the Tribunal:(a)on 19 September 2022, a set of documents lodged by the NDIA pursuant to its obligations under s 37 of the AAT Act (‘T-Documents’) (204 pages);[47][47] Exhibit T1.(b)on 10 May 2024, the NDIA’s hearing tender bundle (‘NDIA’s HTB’) (totalling 690 pages) containing:[48][48] This was subsequently replaced by the NDIA’s Updated HTB referred to below.(i)additional evidence (documents 16 to 41) provided by WVGM;(ii)discharge summaries and clinical handover letters served by WVGM (documents 42 to 51);(iii)the NDIA’s evidence (documents 52 to 77);(c)on 3 July 2024, a set of documents lodged by the NDIA entitled “Second Hearing Tender Bundle” (‘NDIA’s Second HTB’), comprising:[49][49] Exhibit R2.(i)relevant NDIS legislative provisions;(ii)National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘Supports Rules’);(iii)National Disability Insurance Scheme (Plan Management) Rules 2013 (‘Plan Management Rules’); and(iv)seven sets of Operational Guidelines on different matters issued by the NDIA; (d)on 3 July 2024, the Access Request Form in respect of WVGM signed by her (and attaching a “Statement of Permanency – Psychosocial Impairment” signed by Dr Patrick Wong, Psychiatrist), on 24 June 2021 (Dr Wong states that he first saw WVGM on 30 March 2020);[50](e)on 24 July 2024, a standalone version (containing meta-data) of the letter from Dr Anthony Shea dated 7 June 2024;[51](f)on 6 August 2024, information showing breakdown of figures in WVGM’s NDIS plan;[52](g)on 6 August 2024, a set of documents comprising summonsed medical records;(h)on 23 August 2024, a set of documents comprising extracts from the summonsed medical records (no title or index) totalling 136 pages (‘NDIA’s Supplementary HTB’);[53] (i)on 24 August 2024, a letter from Dr Swart to Ms Jade Phillipson dated 2 October 2023 and Ms Phillipson’s reply dated 3 October 2023;[54] and(j)five screenshots produced by the NDIA from its computer system taken on 16 October 2021, 17 October 2021, 15 October 2021, 31 January 2022, and 7 February 2022, that relate to funding for short term accommodation (‘STA’) used by WVGM in 2021. The NDIA asserted that at the time those funds were drawn from WVGM’s NDIS funding, there was no provision of STA under her NDIS plans;[55] and(k)the Current SOPS dated 10 December 2024, and a breakdown of the inputs used to calculate the figures in the Current SOPS.[50] Exhibit R3.[51] Exhibit R4.[52] Exhibit R6.[53] Exhibit R7.[54] Exhibit R8.[55] Transcript Day 4, p-5 and P-6 and email to the Tribunal on 28 November 2024.

Decision

Reasons for decision

On 8 August 2022, WVGM sought review of this decision under s 100 of the NDIS Act. Specifically, WVGM requested funding for core supports which would allow her to be provided with an additional six to eight hours of support worker assistance every day.[25] [25] Ibid, T1B/28.Internal Review Decision – 1 September 2022 On 1 September 2022, a different delegate of the CEO made an internal review decision under s 100 of the NDIS Act (‘Internal Review Decision’).[26] The Internal Review Decision “confirmed” the decision made on 14 June 2022 to approve the Second SOPS. The delegate included in her reasons a statement to WVGM as follows: “The limitations faced by your physical disabilities are currently not funded. It is advised that you engage with your Support Coordinator/Recovery coach to have these added. They must be requested formally along with the current disability evidence and assessed by the NDIS Access officer…”[27][26] Ibid, T1B/28.[27] Ibid, T2/37. On 12 September 2022, WVGM sought review of the Internal Review Decision by the then, Administrative Appeals Tribunal (‘AAT’).[28] [28] Ibid, T1/1. On 14 October 2024, the AAT became the Administrative Review Tribunal (‘this Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘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 this Tribunal. The Transitional Act gives this Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. Neither party disputed that this Tribunal has authority to deal with this present application. Specifically, the Tribunal has authority to undertake this review under s 18 of the Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’), operating in conjunction with s 103 of the NDIS Act.Early depletion of core support funding in the Second SOPS The core supports funding of $184,521.28 in WVGM’s Second SOPS was fully depleted with seven months after approval of the Second SOPS.[29][29] NDIA’s HTB, p.460. Under the Second SOPS, the core support funding was due to last until 13 June 2024 but there was none remaining for core supports by 18 January 2023.Approval of Third SOPS and early depletion of core supports funding On 19 January 2023, a delegate of the CEO approved a new 6-month SOPS for WVGM (‘Third SOPS’).[30] The level and type of core supports in the Second SOPS were replicated, on a pro-rata basis, in the Third SOPS.[31] The types of therapeutic interventions for WVGM in her Second SOPS were replicated in the Third SOPS (that is, psychology, physiotherapy, exercise physiology and other therapy (such as OT)), but the amount of funding (calculated on a pro rata basis) for these supports, was doubled. The level of funding for support from a dietician was replicated (on a pro-rata basis). The funding for support coordination level 2 was replicated (on a pro rata basis) and the level of funding for psychosocial recovery coaching was doubled (calculated on a pro rata basis).[30] NDIA’s HTB, p 471.[31] NDIA’s HTB, p.459.

Ratio Decidendi

Legal Principle Established

The Tribunal has considered the following Operational Guidelines issued by the NDIA entitled (links provided above under the hearing “Secondary Materials”) as relevant to this application:(a)“Creating your plan”, last updated on 3 October 2024;(b)“Reasonable and necessary supports”, last updated on 22 September 2024;(c)“Guide to Plan Management”, issued in September 2020.CONSIDERATIONBackground information provided by WVGM and Dr Patrick Wong, Neurologist, at the hearing On the first day of the hearing, WVGM gave evidence that she was “born with scoliosis and Tourette’s from birth”. She said her “other conditions” were “left dormant” while she was working in the medical field for 10 years (six of them as a nurse) until she “got cervical cancer” at age 28 and had to have a full hysterectomy.[72] WVGM gave evidence that in 2010, her daughter was born premature and passed away.[73][72] Transcript Day 1, P-22.[73] Ibid. On the first day of the hearing, WVGM gave evidence that she did not have any immediate family members. She said she had two friends who “try to” see her. She said she does not have support, except for her support workers. She gave evidence that she has “full custody” of her 11-old-son (since he was age 3), who she said lives with her.[74] Upon questioning by the Tribunal, WVGM said her son went to live with her parents when she was “quite sick”, and that when she got her “recent diagnosis”, he went to live with them for the school holidays. It is apparent from this evidence that WVGM does have access to informal support from family members contrary to her evidence on the first day of the hearing. WVGM said her son will start high school in 2025.[75] She gave evidence that her son’s father is not involved in his care.[76][74] Ibid, P-23.[75] Ibid.[76] Ibid. WVGM gave evidence that “over the years” she had been in an intensive care unit (ICU) “three times due to overdose”.[77] When asked whether the overdose was accidental or deliberate, WVGM said it was deliberate, and confirmed that it was three attempts at suicide.[78] She said that the first occasion was when “they had put me on NDIS”, the second occasion was when “they took funding off me”, and the last occasion was “about six weeks ago” when she received an email from the NDIA.[79][77] Ibid, P-24.[78] Ibid.[79] Ibid. WVGM told the Tribunal that she had deteriorated “so much” in the two years. She explained that she had been diagnosed “a year and a half” ago by Dr Wong with “serious seizures” and that there were video recordings of her seizures which she had put into evidence. WVGM said her neurologist had requested that she record the seizures. The reference to Dr Wong was a reference to Dr David Wong, Neurologist, at Sunshine Coast University Private Hospital. So as not to confuse this doctor with Dr Patrick Wong, Psychiatrist, the Tribunal will refer to Dr David Wong in the Decision by his full name.

Date(s) of hearing:	2, 3 and 4 July 2024 and 27 August 2024
Date final submissions received:	10 December 2024
Applicant:	In person, with support from Ms Gabel, Disability Advocate
Counsel for the Respondent:	Ms Natalie Blok
Solicitors for the Respondent:	Makinson D’Apice Lawyers