XMTW and CEO, National Disability Insurance Agency (NDIS)

XMTW and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 107 (19 February 2025)
Applicant/s:  XMTW
Respondent:  CEO, National Disability Insurance Agency
Tribunal Number:                2023/5905

Tribunal:Deputy President K Dordevic
Place:Sydney
Date:19 February 2025
Decision:The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration with directions that:
(a) the following reasonable and necessary support will be funded under the National Disability Insurance Scheme:
(i)Core:
(A)$5,289.68 for assistance with preparation or meal delivery, support with meal preparation and delivery or help from a support worker to help prepare meals for 12 months.

(b) the date by which the Respondent will reassess the Applicant’s plan is 12 months from the date on which the support under paragraph a(i) is included in the Applicant’s existing statement of participant supports (the reassessment date); and
(c) all other reasonable and necessary supports in the existing statement of participant supports, not funded under paragraph a(i) (excluding any one-off assistive technology already funded) shall be replicated for a period of 12 months, from the date on which the support under paragraph a(i) is included in the Applicant’s existing statement of participant supports until the reassessment date.

.....................[SGD]...................................................
Deputy President K Dordevic
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – participant supports – reasonable and necessary supports – Complex Post-traumatic Stress Disorder – permanent disability in foot – chronic mixed neuropathic nociceptive pain – Lite ‘n’ Easy meals – Complex bathroom modifications – whether the support represents value for money – decision under review set aside and remitted with directions
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 (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024
Cases
Beezley v Repatriation Commission [2015] FCAFC 165
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.
Secondary Materials
National Disability Insurance Agency, Our Guidelines, Home and living supports, Home Modifications (Web Page),
Statement of Reasons

XMTW (the Applicant) is a 62-year-old female who lives alone in her own two bedroom, one bathroom suburban home in Sydney, New South Wales.
On 10 March 2017 the Applicant was granted access to the National Disability Insurance Scheme (the Scheme) on the basis of her psychosocial disorders and a secondary condition of physical disorder. She is diagnosed with Complex Post-Traumatic Stress Disorder (CPTSD) and bipolar disorder,[1] with medical records indicating that she also has a permanent disability in her left foot due to chronic mixed neuropathic nociceptive pain and chronic pain,[2] ischaemic heart disease and Type II Diabetes.[3]
[1] T24, folio 138
[2] T3, folio 24
[3] T25, folio 140
On 1 March 2023 a delegate of the Chief Executive Officer (CEO or the Respondent) of the National Disability Insurance Agency (the Agency) approved the Applicant’s statement of participant supports, with a reassessment date of 29 February 2024 (the original decision). The Applicant’s plan provided funding totalling $195,532.13.
On 9 June 2023 the Applicant requested an internal review of the original decision, seeking funding for provision of meals, bathroom modifications and an additional 42 hours per week of support worker assistance.
On 6 July 2023 a delegate of the CEO affirmed the original decision (internal review decision).
On 14 August 2023 the Applicant lodged an application for review with the Administrative Appeals Tribunal (AAT) for independent review of the internal review decision made by the Respondent. From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is made by the Tribunal.[4]
[4] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The Tribunal held a video hearing by Microsoft Teams on 27 November 2024. Regular breaks were held during the proceedings to ensure that the Applicant could effectively participate. The Applicant was represented by Ms Melissa Adamson, advocate, Disability Advocacy NSW. The Applicant was supported by her support coordinator Ms Rachel Bulmer and her support worker, Ms Jo Pevitt. The Respondent was represented by Mr Arron Hartnett of counsel, instructed by Mr Anthony Westernberg, Sparke Helmore Lawyers.
In evidence were various documents filed with the Tribunal, including the joint tender bundle and additional documents provided by the Applicant and Respondent.
The Tribunal also had the benefit of oral testimony provided under affirmation from the Applicant and Ms Melissa Sale, occupational therapist, Axiom Health Pty Ltd.
LEGISLATIVE FRAMEWORK
The National Disability Insurance Scheme Act (the Act) set down the law that underpins the Scheme. The general principles guiding actions under the Act are set down at section 4 of the Act. Relevant to this application, it includes the principle that reasonable and necessary supports should support people with disability to live independently.[5]
[5] Paragraph 4(11)(b) of the Act.
Section 3 of the Act outlines its objective. Subsection 3(1) of the Act outlines its objects. This includes giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities, enabling people with disability to exercise choice and control in the pursuit of their goals, promoting high quality and innovative supports that enable people with disability to maximise their independence and full inclusion in the community.
The people who have access to the NDIS are referred to as participants.[6] The Scheme provides, amongst other things, individual plans which fund certain supports (NDIS supports) for participants.
[6] Subsection 8(c) of the Act.
Section 33 of the Act outlines what must be included in a participant’s plan. Subsection 33(2) requires that a plan must include a statement of participant supports prepared with the participant and approved by the CEO. Paragraphs 33(2)(a) to (e) of the Act dictate that it must include general, reasonable and necessary supports as well as the date or circumstances in which the Agency must reassess the plan, in addition to the management of other aspects of the plan.
Subsection 33(5) of the Act directs that when deciding whether to approve a statement of participant supports the CEO (and this Tribunal standing in her shoes) must have regard to the participant’s statement of goals and aspirations, relevant assessments, the principle that a participant should manage their plan to the extent that they wish, the operation and effectiveness of previous plans and compliance with spending in addition to being satisfied the supports are reasonable and necessary and the NDIS rules are applied.[7] NDIS Rules are legislative instruments and so are binding on the Tribunal.[8]
[7] Subsection 33(5) of the Act.
[8] Subsection 209(1) and of the Act.
On 3 October 2024 the National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 came into force. Numerous provisions were amended. Relevant to this application it included significant amendments to section 34 of the Act regarding reasonable and necessary supports. It introduced the concept of a NDIS support[9] and amended paragraph 34(1)(f) requiring the decision-maker to be satisfied that the support is a NDIS support. The amendments to the legislation must be applied when a SOPS is approved or varied on or after 3 October 2024, even if the Applicant’s plan came into effect before commencement.[10]
[9] Section 10 of the Act
[10] Subitem 129(2) of Schedule 1 to National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024.
Subsection 34(1) of the Act now provides that when considering what ‘reasonable and necessary supports’ are to be funded that the decision maker must be satisfied that each limb outlined in paragraphs 34(1)(aa) to (f) is established:
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(aa)the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is an NDIS support for the participant.
Note: For the purposes of paragraph (aa):
(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b) a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).
The term ‘reasonable and necessary support’ is not defined in the Act. In the matter of McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle) Mortimer J (as she then was) relevantly stated:
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.[11]
[11] McGarrigle at [91]
The Full Court in National Disability Insurance Agency v WRMF [2020] FCAFC 79 (WRMF) considered the meaning of reasonable and necessary supports:
… the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant.[12]
[12] WRMF at [151].
Subsection 34(2) of the Act states that the NDIS rules may prescribe methods or criteria to be applied, or matters to which the CEO must have regard, in deciding whether the satisfied criteria under subsection 34(1) are met in respect of a requested support.
The support rules relevant to NDIS supports sought in this application are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules), providing guidance when undertaking an assessment of reasonable and necessary supports to be funded.
Section 7 of the Support Rules state that, when considering the funding of a support, the decision-maker must turn their mind to whether it is most appropriately provided by the NDIS or by other support services.
When determining if reasonable and necessary supports should be funded, the decision-maker is to have regard to Part 4 of the Support Rules which sets out the criteria and considerations. These include value for money.
Subsection 3.1 of the Support Rules relevantly states:
Value for money
3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d) for supports that involve the provision of equipment or modifications:
(i) the comparative cost of purchasing or leasing the equipment or modifications; and
(ii) whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
…
When addressing the Support Rules in McGarrigle Mortimer J relevantly stated:
The [Support Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement…some policy decision-making about the nature and extent of supports to be provided or funding under the NDIS.[13]
[13] McGarrigle at [43]
The National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (the Transitional Rules) modified the operation of section 34 of the Act by excluding certain supports from inclusion in a statement of participant supports. Schedule 2 to the Transitional Rules outlines supports that are generally not considered NDIS supports.
The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy. The case law is well established; to the extent that policies are consistent with the legislation, decision-makers should have regard to them unless there are cogent reasons not to.[14] The relevant Operational Guideline in this application is Home Modifications.[15]
[14] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
[15]>
An Applicant must put forward evidence sufficient to satisfy or persuade the Tribunal that the relevant statutory requirements are met.[16] Without sufficient probative evidence the Tribunal cannot be satisfied that subsection 34(1) of the Act in respect of a requested support.
[16] Beezley v Repatriation Commission [2015] FCAFC 165 at [68] per North, Tracey and Mortimer JJ.
ISSUES
The Applicant seeks the following supports which the Agency asserts are not reasonable or necessary as they do not represent value for money:
(a)Lite ‘n’ Easy meals; and
(b)Complex bathroom renovation.
CONSIDERATION
What supports are currently provided?
29.The Applicant’s most recent 12-month plan, dated 1 March 2023, comprised the following supports:[17]
[17] T51, folios 271 to 286
(a) Core supports in the sum of $171,344.68:
(i) $118,665.56 for supports to enable maximum independence in personal activities of daily living;
(ii) $3,000 to fund products to maintain health, wellbeing and participation in community activities, including low cost assistive technology;
(iii) $47,895.12 for supports to explore and participate in community based activities to develop, build and maintain friendships; and
(iv) $1,784 for contribution towards transport costs to access social and community activities.
What supports does the Applicant seek?
Lite ‘n’ Easy meals
On 26 November 2024, the Respondent advised the Tribunal by email that the parties have agreed that the Agency will provide flexible funding of $5,269.68 to be used for assistance with preparation or meal delivery, support with meal preparation and delivery or help from a support worker to help prepare meals for a period of 12 months. The Respondent further advised that pursuant to item 3 of Schedule 2 to the Transitional Rules, the flexible funding will be provided to cover the cost of the meal preparation portion of the Lite ‘n Easy meals and will not cover the cost of the groceries themselves.
During the hearing, the Applicant confirmed her agreement to the provision of flexible funding in the amount of $5,269.68 in the terms described in the above email.
I am satisfied that the parties have resolved this issue in full though have not signed terms.
The evidence before the Tribunal
I am satisfied on the basis of the reports authored by Ms Roslyn Walster, occupational therapist, PRS Support Services dated 21 March 2023[18] and Ms Melissa Sale dated 4 September 2024[19] that the Applicant has a reduced functional capacity due to her psychiatric and physical impairments in the self-care domain. The evidence suggests that the Applicant has low motivation to prepare meals for herself and usually requires the assistance of her support workers to prepare meals. She has special dietary requirements due to her diabetes. Both occupational therapists recommended that to ensure access to regular meals of nutritional value that the Applicant be provided with assistance.
[18] T31, folios 169 to 170, 185
[19] TB16, folios 455, 471 to 472, 474 to 4777
Findings of fact and application of the law
I am satisfied that the provision of this support is necessary to address the Applicant’s needs arising from her impairments in relation to which she met the disability requirements, will assist the Applicant to pursue her goals as outlined in her statement of participant supports, facilitate her social and economic participation, represents value for money, is effective and beneficial for the Applicant and takes into account the support that it is reasonable for informal supports and the community to provide. Furthermore, I am satisfied that this support is a NDIS support as it does not make allowance for the provision of groceries and in the case of meal delivery only includes the meal preparation and delivery cost components as permitted under item 3 of Schedule 2 to the Transitional Rules.

Therefore, I conclude that flexible funding of $5,269.68 to be used for assistance with preparation or meal delivery, support with meal preparation and delivery or help from a support worker to help prepare meals for a period of 12 months is reasonable and necessary for the purposes of subsection 34(1) of the Act.
Complex bathroom modifications
The Applicant requests funding for home modifications to her bathroom which she asserts is a reasonable and necessary support for the purposes of section 33 and subsection 34(1) of the Act and having regard to the Support Rules.
The modifications sought cost $46,750.[20] The scope of the work includes demolition and disposal of all bathroom fittings and fixtures and remodelling and refitting all fixtures to be disabled compliant, including wall tiling, plumbing and drainage, waterproofing, electrical work and painting. The quote includes portaloo hire at a cost of $1,050.
[20] TB6, folios 385 to 388
38.The Respondent submits that the bathroom modifications are not reasonable and necessary as they do not represent value for money, pursuant to paragraph 34(1)(c) of the Act.
The evidence before the Tribunal
The evidence indicates that the Applicant’s bathroom dimensions are 1.9 x 3.1m. It contains a toilet, vanity, and glass shower recess. The floor is tiled and the shower recess has been fitted with 2 x grabrails and a handheld shower hose. There is a small hob to access the shower and there are no rails fitted around the toilet. The laundry is also within the bathroom, behind a concertina door.[21]
[21] T48, folio 229 and TB16, folios 461 to 462
40.On 4 August 2021 Ms Simone Ryan, occupational therapist, PRS Support Services conducted a functional assessment to determine the Applicant’s current and ongoing support needs.[22] In this report Ms Ryan reported that the Applicant reported that the bathroom tiles exacerbate her nerve pain in her foot due to the small floor tiles. She reported that she wears thick socks around the home, but this only assists minimally.[23] It was recommended that the Applicant would benefit from a fall pendant. It was stated that there is a small hob that the Applicant must navigate upon entering and exiting the shower. She apparently had a shower chair provided by her past occupational therapist, as she was using a plastic kitchen stool which posed a high risk of slips. However, the Applicant reported that the shower chair does not fit in her shower recess. It was recommended that the Applicant receive funding for a home modification assessment to meet her chronic pain needs and to improve her quality of life. The report also referenced poor ventilation, apparently as there is no exhaust fan and opening the bathroom window would allow the Applicant’s neighbours to observe her.
[22] T3, folios 24 to 40
[23] T3, folios 26 and 28
41.On 1 December 2021 Mr Michael Cheung, occupational therapist, PRS Support Services, conducted a Complex Home Modification Assessment.[24] Mr Cheung opined that the existing shower recess is 760mm x 860mm glass cubicle with 630mm opening to access the shower recess. Therefore, the Applicant is unable to use a shower chair and has difficulties transferring in and out of the shower. The installed grab rails are not functional in supporting transfers. Mr Cheung stated that the Applicant’s balance, coordination, foot clearance and overall mobility increases the risk of her experiencing a fall transferring into the shower recess as well as navigating the floor when wet. Further, the current shower would be restrictive if the Applicant required wheeled shower mobility in the future.[25] He went on to state that this was suboptimal and would not accommodate her current or future needs.[26] He recommended a 1200mm square stepless shower recess with a strip drain[27] without glass surrounds to allow for easier transfers, use of a shower chair and placement of grab rails all of which would improve the Applicant’s safety and independence. A wall hung vanity basin and widening of the bathroom door would also allow for the possibility of wheelchair usage in the future. [28]
42.Baptist Care provided a bathroom modification quote in line with Mr Cheung’s report dated 15 December 2021 in the amount of $36,384, including slip resistant floor tiles, wall hung basin and portaloo at a cost of $1,800.[29] No apparent provision has been made to widen the entrance door to the bathroom.
43.A quote was provided by Home by Stefano on 1 April 2022 with a total cost of $26,990 consistent with items described at paragraph 37 of this decision.
44.On 20 December 2022 Ms Walster completed a further Complex Home Modification Assessment generally consistent with that provided by her colleagues Mr Cheung and Ms Ryan. Ms Walster confirms that the Applicant is independent with all toileting tasks, but anticipates that her functioning will deteriorate at a faster rate than her similar-age peers and so would benefit from installation of over-toilet aids and grab rails to accommodate the Applicant’s future needs.[30] She also noted that the Applicant would likely remain independent in showering for a long period of time and with improved safety if the shower modifications were made. Included in the report was a photograph of the Applicant using a non-slip shower chair,[31] however it was assessed that the Applicant “is unable to use a shower chair within her shower recess and has difficulty transferring into the shower recess”. She went on to note that the Applicant’s “deterioration in balance, coordination, foot clearance & overall mobility, also increases the risk of experiencing a fall due to the difficulties she has in transferring into the shower recess”. It is understood that this is because of poor access and circulation within the current shower recess. [32]
45.In her application for bathroom modifications dated 20 January 2023 the Applicant stated that she required bathroom modifications because:[33]
My bathroom requires modifications urgently as I am unable to use the shower due to mobility issues I experience. My support workers aren’t able to support me as often as I need due to decrease in funding and an increase in the price guide.
…
I am not able to use my shower safely which has impacted my ability on my psychosocial disability as I am not able to take care of myself...
…
I require funding for my bathroom to be modified to meet my needs so I am able to complete my personal care tasks and assist in maintaining my health and well being…
[24] T4, folios 41 to 63
[25] T4, folio 55
[26] T4, folio 56
[27] T4, folio 57
[28] T4, folio 56
[29] T5, folios 64 to 65
[30] T17, folio 103
[31] T17, folios 113 to 114
[32] T17, folio 111
[33] T18, folio 125
In her Statement of Lived Experience provided to the Agency on 11 December 2023 the Applicant stated:[34]
[34] TB3, folios 368 to 373
If I have my bathroom modified, it will allow me to have a shower with reduced pain, it will make it easier for me to do the task independently as I will have room to move in the shower and will be able to safely have a shower chair to use, and I will be at less risk of falling. The current set up makes the task difficult and causes additional fatigue and pain to me. This aligns with my above goal, to be able to continue to live independently in my own home. This aligns with my medium-long term goal in relation to maintaining my mental health and wellbeing, as having an accessible, modified bathroom will allow my pain to be reduced when carrying out my personal care tasks, and this will have a flow on effect for my mental health and wellbeing.
…
a.I walk in the bathroom and have my shower every morning.
b.Having a shower each day causes me a lot of pain, due to the current set up.
c.I am asking to get better floor tiles on the floor to stop the nerve pain.
d.I have had no falls in the bathroom where I have landed on the floor.
e.I have gone to fall and fell through the shower door. I then hit and landed on the bathroom door. This stopped me from falling onto the floor. I try and save myself from falling in any way I can.
f.I was asked to use a suction mat in the shower to stop me from falling. I entered the bathroom to use the toilet and I tripped on the suction mat and fell onto the vanity. I no longer use the bathroom suction mat.
g.I have had a few times happen in the past, where I have tripped over in the bathroom. I
haven’t ended up on the floor, as I have been able to stop myself from falling.
h.People that know me call me a “Crash dummy”. I have had other falls outside of the bathroom area, such as near the clothesline outside. I have fallen out of bed a few times and landed on the floor.
…
a.I have a shower chair, but it is not suitable to use. There is no space to move if I put the shower chair in the shower.
b.I previously personally purchased a shower hose for the bathroom, and two easy use taps, to assist me in the bathroom.
c.A shower stool was purchased and trialled, but it was not suitable. It was the smallest shower stool available, however it was still too big for my shower, as there is hardly any room for me to stand up and have a shower. The shower is a very small space.
d.The grab rail was already installed when I purchased the property. The rail is on a slant and it is in the wrong position. Often when I bend down in the shower recess, I smash my head on the rail.
47.In a letter addressed to the Agency dated 17 February 2023 Dr Dona Biswas, psychiatrist, ZenWaves Clinic stated that the Applicant has difficulty in self-care activities including showering. Ms Kylie Pennings, psychologist, Proactive Psychology Group authored a letter dated 23 February 2023 and noted that the Applicant has extensive nerve damage in her left foot and spine which impacts on her ability to engage in daily routine, including showering.[35]
[35] T26, folios 141 to 144
48.Dr Kevin Fan, general practitioner, Southlands Medical Clinic advised in a letter dated 17 February 2023 that amongst other conditions, the Applicant has diabetic nephropathy and foot arthropathy. It stated that the Applicant had previous foot surgery and requires ongoing pain management intervention. The applicant is under the care of Dr Gurbir Kaur, pain management specialist and her pain is managed by regular palexia and gabapentin. It also stated that the Applicant is scheduled for nerve root radiofrequency ablation.[36]
[36] T25, folio 140
49.On 21 March 2023 Ms Walster undertook a further functional assessment.[37] It was noted that the Applicant reported that she is unable to mobilise on uneven terrain as she may lose her balance.[38] Ms Walster reiterated earlier findings that the Applicant is unable to use a shower chair or stool as the shower recess is too small and in any event a shower chair is more a “hazard”[39] or “barrier than an aid”.[40] The Applicant reported that she requires supervision from her support worker to complete shower transfers.[41] It is noted that the Applicant uses the bathroom sink to transfer on and off the toilet,[42] has difficulty standing on tiles due to their small size causing her increased nerve pain and also is required to step over a small hob when entering and exiting the shower which is a falls risk.[43] Further, Ms Walster states that the Applicant reports that the grabrails in the shower are unhelpful due to inappropriate positioning and height.[44] It was recommended that in order to continue to live independently the Applicant would require a major bathroom modification including removal of shower panels and installation of a shower curtain and grab rails near the toilet.[45]
[37] T31, folios 151 to 189
[38] T31, folio 161
[39] T31, folio 162
[40] T31, folio 168
[41] T31, folio 162
[42] T31, folio 167
[43] T31, folio 168
[44] T31, folio 179
[45] T31, folios 172 and 176
50.Disability Solutions Plus provided a quote dated 6 June 2023 to remove the existing grab rail in the shower and instal a vertical grab rail and instal a drop down rail to the right hand side of the toilet. The total cost of supply and installation was $1,360.[46]
[46] T41, folio 211
51.On 21 June 2023 Ms Walster provided the Applicant’s support co-ordinator a bathroom modifications quote.[47] However, there is no quote attached to this document and so it is not in evidence. Instead, in evidence is an undated scope of work report provided by PRS Support Services which includes wheelchair accessibility.[48]
[47] T44, folios 214 to 215
[48] T48, folios 228 to 238
52.Ms Walster provided recommendations to this Tribunal dated 12 December 2023.[49] It relevantly states that the Applicant experiences nociceptive and neuropathic pain in her left foot which impacts on her capacity to mobilise as well as peripheral vascular disease which is triggered by physical activity such as walking and climbing stairs. Ms Walster opined:
[49] TB4, folios 374 to 382
[The Applicant]’s existing shower recess is a 760mm x 860mm glass surround cubicle. Due to the limited size, [the Applicant] is unable to use a shower chair within her shower recess and has difficulty transferring into the shower recess. Due to the glass screen and inadequate opening of the access of the shower recess, the installed grab rails are not functional in supporting shower transfer.
[The Applicant]’s deterioration in balance, coordination, foot clearance & overall mobility, also increased the risk of experiencing a fall due to the difficulties she has in transferring into the shower recess, as well as increasing difficulties associated with navigating wet/slippery areas of the home. The existing access to the shower recess and glass door enclosure, are not facilitative of assistive technologies, especially those of a wheeled nature. This is highly restrictive for [the Applicant] if she requires the need for wheeled shower mobility (i.e., shower commode) in the future.
53.Ms Walster provided the following responses to targeted questions put to her from the Agency:[50]
[50] TB4, folios 377 to 382
Questions for the Applicant’s Occupational Therapist as per NDIA AAT Request:
4. Provide reasons and information demonstrating that the requested major bathroom
modifications meet the reasonable and necessary criteria. Please address:
a. Why other supports (e.g., low-cost AT, capacity building supports) cannot meet
the Applicant’s needs and must be addressed by the complex bathroom
modifications.
…
Use of Low-Cost assistive technology
[The Applicant]’s existing shower recess has very limited space and does not facilitate the use of assistive technologies.
… Use of assistive technologies also do not facilitate [the Applicant]’s ability to reach down to her lower limbs and manoeuvring within the shower recess. Even with the assistance from assistive technology, [the Applicant] would be required to engage in an inappropriate posture for showering within current shower recess. Moreover, it is anticipated that [the Applicant] would require wheeled assistive technologies in the future.
Minor modifications – Grab rails & Removal of glass surround
Grab Rails have already been installed and were reported to be ineffective due to inappropriate height of the rails. Furthermore, the limited space within the shower recess also does not facilitate the proper use of the grab rails. i.e., [the Applicant] would need to engage in a weird posture in order to utilise current grab rail, which may increase her risk of falling.
Removal of the glass surround and installation of a shower curtain are assessed to be ineffective due to the limited circulation space near the shower recess. Furthermore, without installation of strip drain, the shower curtain alone would not be able to prevent excessive water from remaining on the bathroom floor. This would leave the floor surface to be wet and increases her a risk of fall.
Moreover, [the Applicant] may require wheeled assistive technologies in the future. Therefore, this is considered to be an unsuitable option for [the Applicant].
…
Maintaining current practice
… Furthermore, [the Applicant] may require the use of wheeled assistive technologies in the future. Therefore, maintaining current practice is considered to be an unsuitable option for [the Applicant].
…
b. Whether low-cost options such as anti-slip mats or anti slip coating on the existing
tiles, among any others, have been considered to mitigate the risk of slipping and
lower the cost of the requested supports.
Low-cost options such as anti-slip or anti-slip coating on the existing tiles have been reviewed and discussed. However, due to [the Applicant]’s existing shower recess has very
limited space and does not facilitate the use of anti-slip or anti-slip coating. This would be a great option for when the bathroom modifications have been completed.
5. Please provide your clinical justification for the bathroom modifications.
[The Applicant]’s current shower recess is too small for [the Applicant] to safely and independently complete her shower tasks, showering is a basic human right that all human beings should have access to. [The Applicant] can maintain independence with toileting long term with provision of the proposed modifications including:
[The Applicant] will maintain independence and safety with showering with the proposed bathroom modifications as they allow for level access.
…
The best option for [the Applicant] to accommodate her care needs now and into the future would be to remove the current shower recess and install a wet room to ensure a level of accessibility and installation of rails to assist [the Applicant] and her carers whilst completing self-care tasks.
The proposed accessible space will:
• Allow safe access to and from the shower and toilet.
• Allows for safe use of other adaptive equipment such as shower chair, grab rails and wheeled aids in the future.
• Improved access for [the Applicant] for washing tasks as well as improving hygiene relating to continence.
• The proposed modifications will allow [the Applicant] to have level access within the bathroom and receive assistance for disability related dependencies in self-care in a safe working environment – which supports paid support workers.
• The proposed modifications will decrease falls risks and eliminate sustained awkward
postures for [the Applicant]’s care providers, causing secondary injuries. Further, this would therefore eliminate the costs associated with formal assistance being required, which also carries a high long-term financial expense.
• Other more cost-effective adaptive equipment options have been considered and explored, the current bathroom layout does not allow for optimal use of adaptive equipment (i.e., electric bath chair)
• It is acknowledged that the modifications are costly, however in my professional opinion
there are no simple low-cost options that are suitable for [the Applicant] long term that will enable her to reach her goals and maintain optimal functional performance. It is viewed that any other modifications, or assistive technology options would only be short term solutions (bath boards and swivel bathers) and in the long term are not financially viable.
The bathroom modifications take into consideration [the Applicant]’s current and future functional, and equipment needs. The modifications will reduce care burden in the long term and will reduce the risk of potential cost of permanent support workers being required as well as the risk of permanent placement in supported accommodation as her care needs cannot be met in the home environment.
6. Advise what future supports (if any) the bathroom modifications will reduce for the Applicant as well as the approximate cost of those supports.
Completion of bathroom modifications will increase [the Applicant]’s independence in accessing the shower recess. [The Applicant] has been with chronic pain and has increased pain levels in her left foot, significantly her ability to safely complete shower tasks. Completing the bathroom works will allow [the Applicant] to maintain her energy levels to be able to engage in other meaningful activities in her life.
The larger space allows for provision of a shower chair to furthermore increase [the Applicant]’s independence and safety when completing shower tasks.
[The Applicant]’s shower recess does not allow her to safely complete self-care tasks due to the inadequate space within the shower recess.
54.Ms Fiona Ormerod, occupational therapist, Healthproof Allied Health Services Australia also provided responses to questions put to her from the Agency on 6 February 2024. She confirmed that she had only met with the Applicant on one occasion. Relevant to this application she stated:[51]
[51] TB8, folios 390 to 394
[The Applicant] reports that this has become increasingly difficult due to the small tiles located on the bathroom floor as her pain levels are triggered due to the numerous edges. Nociceptive pain is a type of pain caused by damage to body tissue. Thus, [the Applicant]’s feet are really sensitive to change in pressure when walking on the smaller tiles. She also reported the difficulty of using the shower as it is too small to accommodate the shower chair and herself safely as the current shower recess measures 860mm x 760mm. With the small area to shower and the impossible positions [the Applicant] has to place herself in, increases her pain levels in her feet and lower back.
[The Applicant] reports that her mobility has declined significantly since 2020 and she is restricted to walking very short distances around her home. [The Applicant] reports that she experiences pain in her lower back and foot when mobilising. [The Applicant]’s walking tolerance, strength and coordination has been significantly impacted, resulting in her needing assistance from her support worker. Around home [the Applicant] is not currently using a 4ww to access her home environment, however it may come to fruition in the near future.
Questions for the Applicant’s Occupational Therapist as per NDIA AAT Request:
1. … Noting that the Applicant is at a high risk of falls, how can you ensure that the Applicant will not fall in an environment where everything is designed to get wet, particularly when the Applicant may require wheeled assistive technology in the future?
The current bathroom layout increases [the Applicant]’s chances of falls as the shower recess is too small (860mm x 760mm) to accommodate the shower chair and [the Applicant]. [The Applicant] is not able to safely enter/exit the shower with the shower chair in the shower recess. She is not able to use the grab rails as they are to (sic) high if she used the shower chair, would hit her head on grab rail and tap ware. She is having to place herself into awkward positions in the attempt to wash herself. At the moment [the Applicant] is lucky to shower twice a week due to the effort involved to shower and the increase in pain levels due to the small floor tiles.
The request for the wet room in T48 outlines larger tiles with slip resistant floor tiles meeting builders codes AS1428.1, RL 10. The larger tiles are to aid in reducing the current pain felt (sharp throbbing pain) in her feet when accessing the bathroom with the smaller tiles.
[The Applicant] would be able to use the shower chair and the recommended grab rail independently and safely in the wet room without placing herself into awkward positions. [The Applicant]’s support worker can assist in drying the excess water on the tiles outside of the shower area, as [the Applicant] showers shortly after her support worker arrives.
When/if [the Applicant] reaches the stage of wheeled assistive technology she will be able to remain independent in participating in personal care task of showering with the wet room as it will accommodate the assistive technology and [the Applicant] will not have to put herself into awkward positions to wash herself. [The Applicant] will be able to wheel herself into the bathroom as the door way will be modified from the current 730mm to 820mm wide to accommodate the future assistive technology, or have assistance from her carer to wheel into the bathroom.
2. The Respondent understands that you opined there are no low-cost options that are suitable for the Applicant. Is it your contention that there are no low-cost options in expanding the space in the Applicant’s shower or that there are no low-cost options for a wet room? If the latter, please provide further detail about how a wet room is recommended for the Applicant and how this will reduce her
need for future supports…
There are no low cost options for either expansion of the current space in the shower nor low cost option for a wet-room.
[The Applicant] resides in a single storey villa with a concrete floor not in a unit complex.
To expand the current shower will not allow for expansion of the bathroom door so that [the Applicant] can safely and independently use assistive technology in the future. Expansion of the shower in the current location does not accommodate for ease of use with assistive technology in the future. Wheeling into/out of the shower, wheeling to the toilet is limited. The minimum turning circle required in a rear propelled assistive technology is 1575mm diameter turning circle, thus the recommended expansion of the shower recess in T4 with the glass wall does not allow for the minimum turning circle.
Expansion of the current shower could possibly lead to flooding into the corridor/hallway as the shower is located near the bathroom door. [The Applicant] is requiring larger floor tiles with non-slip surface to replace the current tiles as the smaller tiles increase [the Applicant]’s pain levels.
3. … How does a stepless shower recess differ from a wet room and why is this not a suitable option for the Applicant?
A stepless shower has no hob but has a shower screen (3^rd wall) insitu, where as a wet room has a shower curtain and no hob nor shower screen. Thus increasing the available area in the shower, carers are able to assist clients easier as they are not restricted by a 3^rd wall. The shower curtain can be pushed aside/around the support worker. A wet room also has a basin that is accessible by a wheelchair front on.
Please outline any risks associated with the current bathroom arrangement and layout and can you please explain what a wet room is and, in your opinion, how a wet room would help to reduce the risk of falls?
In the scope of works T4, the bathroom door is not being widened to accommodate the future use of self propelled assistive technology by [the Applicant].
The T4 scope of works has the shower remaining in the current location and if there are plumbing issues water may exit out into the corridor of the hallway. Water can also run into the bathroom around the vanity and toilet, limiting [the Applicant]’s safe access to her bathroom. With the use of the shower screen it will limit the access for carers and client in the future. To meet the Australian building codes there needs to be a structure to block
overflow when a shower is near a door.
In scope of works T48, the bathroom door is widened to accommodate the future use of assistive technology. By moving the shower into the opposing corner, there is less chance of the corridor/hallway flooding. The sink/vanity will be less likely to have water damage in the event of flooding as it is on the opposing wall. T48 accommodates ease of use of assistive technology compared to T4 Scope of Works.
Please outline any risks associated with the current bathroom arrangement and layout and can you please explain what a wet room is and, in your opinion, how a wet room would help to reduce the risk of falls?
In the scope of works T4, the bathroom door is not being widened to accommodate the future use of self propelled assistive technology by [the Applicant].
The T4 scope of works has the shower remaining in the current location and if there are plumbing issues water may exit out into the corridor of the hallway. Water can also run into the bathroom around the vanity and toilet, limiting [the Applicant]’s safe access to her bathroom. With the use of the shower screen it will limit the access for carers and client in the future. To meet the Australian building codes there needs to be a structure to block overflow when a shower is near a door.
In scope of works T48, the bathroom door is widened to accommodate the future use of assistive technology. By moving the shower into the opposing corner, there is less chance of the corridor/hallway flooding. The sink/vanity will be less likely to have water damage in the event of flooding as it is on the opposing wall. T48 accommodates ease of use of assistive technology compared to T4 Scope of Works.
4. Please confirm if the modifications that the Applicant are seeking are the same as outlined in the Scope of Works at T48.
[The Applicant] is seeking the modifications that are outlined in Scope of Works at T48. As it will be modified for the future and accommodate her ageing and declining physical status and assisting [the Applicant] with living independently and dignity whilst increasing her safety and reducing pain triggers of the smaller tiles. She wishes to remain in her own home for as long as she possibly can, completing personal care tasks independently without the assistance of a carer, thus reducing the cost. The scope of works T48 will increase [the Applicant]’s independence and safety when attending to self care tasks with reduced pain as well as increasing the access for use of assistive technology in the future.
Do you agree with the recommendations and justification for bathroom modifications provided by Occupational Therapist Roslyn Walster, in her reports including “Complex Home Modifications Assessment Template 2022”, “Scope of Works”, and “NDIS letter of Recommendations for [the Applicant] by Occupational Therapist Roslyn Walster 12Dec23”?
I agree with the recommendation and justifications proposed in the reports and the Complex Home Modifications Assessment Template dated 2022 as well as the NDIS letter of recommendation for [the Applicant] dated 12 December 2023 written by Roslyn Walster (Occupational Therapist). The report written by Roslyn Walster meets the Australian Standards for disabled bathrooms. Wet room dispenses of the enclosure (shower screen walls) thus accommodating the ease of use of the shower chair as well as the need arises in the future for assistance with personal care. The proposed modifications increases [the Applicant]’s safety, dignity and ability in performing self care task of showering as every human right.
The current shower does not give [the Applicant] her dignity as she is not able to shower on a daily basis. The current shower does not provide a safe environment for [the Applicant] as she is not able to use the low cost shower chair within the recess, as the recess is not large enough.
Would the provision of the proposed home modifications allow [the Applicant] to remain living and functioning safely in her home for as long as possible. Why/why not?
The proposed wet room will decrease falls risk as [the Applicant] will be able to safely and independently use the shower chair along with the proposed grab rails will eliminate awkward postures currently sustained by [the Applicant]. If in the future, [the Applicant] requires assistance with showering and or toileting her carers will be able to work in a safe environment, thus reducing injury to the workers.
The complex major modifications allow for safe use of other assistive technology (shower chair, grab rails/drop down grab rail) and planning for future use of assistive technology (wheelchair/shower commode).
It is acknowledged that the modifications are expensive, however it is my professional opinion there are no low budget options that are appropriate for [the Applicant] long term that will allow her to reach her NDIS goals and maintain optimal functional performance.
The bathroom modifications take into consideration [the Applicant]’s current and future functional capacity, and equipment needs. The modifications will reduce care burden in the long term and will reduce the risk of potential cost of permanent support workers being required as well as the risk of permanent placement in supported accommodation as her care needs cannot be met in the home environment.
55.In a letter dated 25 March 2024 Dr Lee reviewed the Applicant and provided the following summary to the Applicant’s general practitioner:[52]
I reviewed [the Applicant] today. She is reasonably well and denies having any claudication symptoms in the legs. Admittedly, she is not walking that much. Her main restriction is from the back where she has significant pain. She is awaiting further follow up from the chronic pain team.
On examination, both feet appeared pink, warm and well-perfused. There were no active ulcers seen. Doppler examination revealed good signals in both feet with an ABI of 0.75 on the right and 0.9 on the left.
Based on my assessment, she has good arterial perfusion to her legs with no features of significant ischaemia. While she does have atherosclerosis of the lower limb arteries, she appears to be well collateralised and does not require any intervention.
I have reassured her.
As she has been stable over the last few years, I have recommended that she return for review only if she has any future concerns.
[52] TB11, folio 397
56.Ms Ormerod provided a report dated 3 October 2024 to provide clinical support for assistive equipment.[53] In reaching her recommendations, Ms Ormerod declared that she reviewed an independent medical examination and she had met the Applicant twice. She recommended, relevant to this application, a raised toilet set with armrests and a bathroom exhaust fan.
[53] TB8, folios 390 to 392
57.Ms Ormerod went on to state that she endorsed the recommendations in Ms Walster’s report dated 21 June 2023. Further, she stated that providing a larger shower recess will facilitate the safe usage of adaptive equipment, including wheeled aids in the future. This conclusion was based, in part, on the Applicant reporting to her that showering aggravates her left foot pain “and it can take some time to reduce. However, the pain never really dissipates”.[54]
[54] TB8, folio 391
58.When asked about more cost-effective adaptive equipment Ms Omerod stated:[55]
While other more cost-effective adaptive equipment options have been considered, the current bathroom layout does not support optimal use of these alternatives. The drop down shower stool does not offer a deep seat base, depending on how soaped up [the Applicant] is, she could slide off the drop down shower stool and end up on the floor, [the Applicant may not be able to stop herself from sliding due to reduced contact with her feet and floor. The stool does not have bilateral handles thus [the Applicant is unable to grab on to the stool to steady herself. Although the proposed modifications may seem costly, there are no simple, low-cost options that would provide a suitable long-term solution for [the Applicant.
[55] TB8, folio 392
59.The Applicant provided a final statement to the Respondent and this Tribunal on 4 October 2024.[56] She restated that she was seeking approval for a bathroom modification to assist her to safely access her bathroom and reduce her pain level when having a shower. She stated that despite the impact that pursuing a review in the Tribunal was having upon her mental health, she has pursued the review because she “cannot cope with not having my bathroom issue addressed”. She went on to state that she has had to “suffer pain whilst having a shower” and that it is “necessary for me to have a bathroom where I can access safely, and with reduced pain”.[57] She went on to state:[58]
[56] TB13, folios 401 to 409
[57] TB13, folio 403
[58] TB13, folios 404-405, 406, 407, 408
e.The small space of the shower is an additional issue for me, however the small tiles in my bathroom
are the biggest hurdle for my pain. The little tiles, grooves, and grout further trigger my nerve pain “It
kills for me to have a shower”. (reference- Statement of Lived Experience [the Applicant] 11Dec23)
d.I live with severe pain every day. I will always have nerve pain. My Specialist Dr Arvind Lee advised
me of this. My nerve pain is the result of Peripheral Vascular Disease that is due to the Psychiatrist
medication I was prescribed from Psychiatrists in the past. (reference- T25- Dr Kevin Fan, Southlands Medical Clinic, dated 17/02/23). Medical Letters from Dr Arvind Lee to GP dated 27/03/23 and 25/03/24).
…
g.   I take the strongest pain killers and 600g Gabapentin (nerve blocker) in the morning 1-2 hours before
my shower, to be able to bear having a shower. I have an additional 600mg of Gabapentin in the evening. However, the medication does not get rid of my nerve pain.
h. When I have a shower in my current bathroom, even with preparing for the shower with my pain
medication routine, my pain is still a maximum pain level of 10/10.
i.I would like to be able to have a shower everyday.
j.I want to clarify that whilst I wash every day, I do not have a shower everyday. This is because I
cannot bear the pain levels, to be having a shower every day.
k.When I can’t have a shower because of pain, I still attend to my hygiene.
l.On average every second day I have a sponge wash. I stand at my basin, with my socks on standing
on the tiles. I then sit on the toilet seat with a face washer to wash my feet. It is important to look after
my feet and clean my feet due to ulcer risk due to my diabetes. I have had ulcers previously. If I have
an ulcer on my foot, it will impact my mobility further, which increases my risk of further physical
disability and deterioration in my mobility being impacted in the future.
m.When I have a shower, I have to lay many towels on the floor to step onto when I get out of the
shower barefoot, to reduce my pain levels. I hop from one towel to another to get to the toilet, where I
then sit to wipe my feet dry and put my socks back on.
…
t.    Having a bathroom floor that I can directly walk on with reduce pain, will allow me to be safer, and
reduce my risk of falls. If I had larger tiles, I could take my time walking in the bathroom and exit the shower.
…
h. I have tried nonslip mats with my Occupational Therapist previously, but with my nerve pain it doesn’t
work. I need to jump off it and hop on the normal bathmat, which is unsafe, as it increases my risk in
falls.
q. (sic) As I stated in my first statement “I was asked to use a suction mat in the shower to stop me from
falling. I entered the bathroom to use the toilet and I tripped on the suction mat and fell onto the vanity. I no longer use the bathroom suction mat”. (reference- Statement of Lived Experience [the Applicant] 11Dec23)
i.    The suggestion of anti-slip coating would not be a suitable solution. I am sure it would cause me
increased nerve pain. I have a ramp in the home, and it has an anti-slip surface which is rough and I
cannot use it. I have to avoid and step over it.
j.    I have other ramps in my home. Their textures are flat with a pattern. I can walk on them with my
socks on.
k.   If there was anti slip coating on my bathroom tiles, I would need to be able to walk with no socks on to be able to access the shower. I do not think this would change the outcome of my biggest issue of
being able to have a shower with reduced pain.
l.   The Independent Occupational Therapist, Melissa Sale, recognises in her report that “To improve the
slip resistance of existing flooring, I would typically recommend that an epoxy anti-slip coating be
applied to the floor. This may create more friction to the surface of the tile, which whilst achieving the
goal of being slip resistant, may create increased foot pain associated with the granulated nature of
such coatings.”
…
a.If I have bigger tiles in the bathroom, it will definitely reduce my pain and assist me to be able to have
a shower without suffering with excruciating pain.
b.In the past two homes where I lived, I had large tiles in the bathroom. Back then, I could have a proper shower and it was bearable for my pain. This is how I know that having large tiles installed will help with my pain and allow me to have a shower with reduced pain.
60.The Tribunal also noted the various discharge summaries and post-operative reviews in evidence from Nepean Hospital, Penrith.[59]
[59] TB14, folios 410 to 446
61.The Tribunal also had the benefit of an independent occupational therapy assessment undertaken on the papers by Ms Melissa Sale, occupational therapist dated 4 September 2024.[60] Ms Sale was of the view that the complex bathroom modifications requested were not reasonable or necessary. Instead, Ms Sale recommended equipment and minor home modifications to maximise the Applicant’s safety and accessibility whilst undertaking hygiene tasks.
[60] TB16, folios 451 to 492
62.Ms Sale notes that the evidence suggests that the Applicant is independent of showering but does so with difficulty due to the shower’s dimensions and her foot injury. She highlights that the Applicant declared that she was able to shower daily on 11 December 2023,[61] but that by 4 October 2024 the Applicant suggests that she was only able to shower every second day. However, on 6 February 2024 Ms Ormond declared that the Applicant is “lucky” to shower twice a week.[62]
[61] TB3, folio 372
[62] TB8, folio 391
63.Ms Sale opined that given that the Applicant was independent of dressing and that the shower had a hand-held shower hose and she had access to a long handled sponge, which, in her view, would largely eliminate the need for excessive bending and reaching. She also noted that the applicant had a sufficient standing tolerance to be able to wash herself. It was also her view that the Applicant remained independent of showering in the absence of routine of support worker assistance. Rather than the proposed complex bathroom modification Ms Sale recommended a drop down shower seat (with no legs), a raised toilet seat with armrests, and two options both of which involve removal of the grabrail facing the shower door and installation of the drop down shower seat and replacement and/or repositioning of the shower hose, which is to be placed on a sliding grabrail to allow it to be accessed from a sitting position. Ms Sale also recommended either coating the bathroom tiles with an anti-slip epoxy coating to provide anti-slip protection on the bathroom floors (noting later that this may create more friction to the tile surface and may increase the Applicant’s foot pain given its granulated surface) or a trial of alternative non-slip bathroom mats that the Applicant could tolerate with her left foot hypersensitivity. Her recommendations as to exhaust fans is moot, given the Applicant has declared that she installed an exhaust fan at her own expense.
64.Ms Sale is of the opinion that she is unable to confidently state that the provision of larger tiles would significantly reduce the Applicant’s foot pain when accessing the bathroom. She went on to state that as tiles are hard and cold underfoot she is unsure that significant relief would be gained from changing the density or layout of floor times. She stated that the key factor is to assess the slip rating of the bathroom service.
65.The Tribunal had the benefit of oral testimony from Ms Sale. In response to questioning about the drop down shower bench Ms Sale stated that this is used when there is a need to balance space saving and requiring a shower chair. She recommends this type of aid where there are restrictions in shower space and a person has the ability to stand in the shower for about one minute, but is unable to stand for the duration of showering or who requires assistive technology to reach their lower limbs. Ms Sale stated that a drop down bench is smaller than a shower stool or chair and is fixed to the wall.
66.In response to questions about the two options for bathroom modifications she recommended, Ms Sale stated that assuming that wall studs were available each grab rail would cost about $500. The bench seat would have a similar cost, again on the assumption that the wall was load bearing and the installation straightforward. She thought a handheld shower hose would also be around $500, though she could not comment on the cost of removing existing hoses and fixtures and relocating them if this option was preferable.
67.Ms Sale testified in respect of replacing the bathroom floor tiles that the first consideration must be given to the slip resistance of any tiles. She stated that she was “not sure” how much impact larger tiles would have upon the Applicant’s neuropathic pain, noting that her condition had remained stable, though chronic. To confidently give evidence on this point she would need to compare the bathroom surfaces to other areas of the home in addition to seeking advice from pain management experts. She stated that she has never recommended a change in tiles size to address pain symptoms, however noted that hypersensitivity is a significant factor and desensitization methods may or may not have been trialled. Ms Sale stated that there are smooth shower mats that do not have holes in them, though are granulated to ensure that they are non-slip. She stated that it would be a process of trialling various bath mats with the Applicant. She confirmed that in her experience it was not usual to recommend complex bathroom modifications without trialling lower cost assistive technologies first.
68.The Applicant provided oral testimony, summarised as follows. Each time she placed weight on her left foot it is like walking on broken glass. Despite being promised good outcomes following foot surgery she experiences extreme pain each day, even though she is prescribed pain medications. When she is accessing public spaces she wears a controlled ankle movement boot with local anaesthetic patches.
69.The Applicant explained that the remainder of her home has vinyl flooring which does not alleviate her pain symptoms but certainly does not exacerbate it as the bathroom tiling does. The primary cause of the exacerbation of her pain is that the bathroom tiles are small[63] and so the grouting falls below the tile height; where there is a groove in any flooring it triggers increased neuropathic pain. Generally, when accessing the bathroom she wears grip socks; these are adequate in managing her pain symptoms when undertaking laundry tasks or cleaning her teeth, though she is never pain free. She must remove the grip socks when showering and so her pain is exacerbated when she showers. This is the case even though she takes gabapentin and slow release opiate pain medication before showering. Part of her showering routine is to wipe down the shower when she turns off the taps to prevent mildew; she reasons that she is already in pain so she may as well clean the shower when barefooted. She was adamant that a support worker does not, nor would she ever permit the support to, support her in showering due to her CPTSD.
[63] T46, folio 217 contains a photograph of the current bathroom tiles.

The Applicant stated that in her previous Richmond property she had bigger floor tiles in her bathroom and her pain in showering was not as severe as it is when accessing her current shower. In response to a question of whether the increase in her pain symptoms could be not because of the tile size but rather a deterioration in her left foot condition the Applicant stated that it “could be right. Honestly, I do not know.” She explained that she could not test this theory as she is not allowed to go to her children’s homes without an invitation and they have larger tiles in their bathrooms.
71.It was about three or four years ago that she began investigating bathroom modifications. She submits that she does not require the toilet to be moved or a bench seat to sit on in the shower. She merely seeks bigger floor tiles, at about 30cm x 30cm, as these would assist her in managing her pain symptoms whilst undertaking hygiene tasks. If increased floor tiles or another similar surface were provided it would be “magical”, especially because she would be able to have more than one shower per day if required. Some days she does not even shower because her pain prevents it. Under cross-examination the Applicant confirmed that she had not sought a quote to replace only the floor tiles in her bathroom.
72.The Applicant testified that she has attempted various low-cost alternatives to address the tiling issue. These include rubber matting in the shower, a shower chair and a plastic stool. She instructed that there is insufficient room in the shower to fit a shower chair.[64] She was instructed by an occupational therapist to no longer use a plastic stool she had purchased as it does not have adequate suction and so could cause a fall.[65] She did not explore getting a stool with appropriate feet suction; she does not know whether such an item exists. She stressed that when not weight-bearing on her left leg she finds her pain symptoms reduce somewhat. She described herself as a “flamingo”.
[64] It is understood that this shower chair is in the photograph at TB4, folio 376
[65] It is understood that this stool is in the photograph at TB4, folio 379
73.In reference to the medical evidence that supports her contention that she requires a new bathroom floor surface, the Applicant confirmed that she had “passed it by” her treating specialist, Dr Arvind Lee, vascular surgeon. However, she stressed that Dr Lee advised her that he is a surgeon and cannot comment on bathroom modifications or what could assist her pain management when showering. In evidence is a letter authored by Dr Lee dated 27 March 2023 which states that the Applicant is continuing to be limited by pain in the left ankle but is stable from a “lower limb perfusion standpoint”. Doppler examination revealed no significant changes and review was to take place in 12 months.[66]
[66] JTB, TB2, folio 367
74.The Applicant vehemently opposed the report authored by Ms Melissa Sale, occupational therapist, provided at the request of the Respondent. The applicant stated that she had undertaken two bathroom modifications in previous homes to accommodate her impairments. She also made modifications to the current bathroom, including the installation of shower head and taps. She has no doubt that replacing her current tiles with a different surface will have a significant difference to her pain symptoms. Her son is a concreter and told her that replacing the current flooring with concrete would be more expensive than tiles. She reiterated that is all that she currently wants changed in her bathroom, stressing that she does not want to take money from taxpayers unnecessarily and wants to minimise the bathroom modification costs as much as possible. She pointed out that she would require alternative accommodation whilst the works are undertaken. She explained that residing with her sons or other family members whilst the work is undertaken is not possible. Instead, she proposed that the Agency would need to provide an accommodation placement of 28 days.
75.The Applicant confirmed that she has not sought permission from her body corporate to have the bathroom modifications. She explained that the application costs $1,000 and there are also additional legal fees. She would only lodge an application with the body corporate and so incur these costs once the Agency agrees to undertake the bathroom modifications.
76.The Applicant confirmed that she has had both an exhaust fan and heat lamps installed in her current bathroom. Even with these installed, she keeps the shower door open to allow the steam to escape. In any event, she suffers from claustrophobia and so prefers to have the shower door open.
77.Ms Adamson submitted that the special coating on the tiles, as suggested by Ms Sale, would not be suitable because the Applicant states that she has such floor coatings in other parts of her home and these do not assist in managing her chronic foot pain. Ms Adamson urged the Tribunal to give more weight to the recommendations made by Mses Walster and Ormond given they have met the Applicant and also undertaken an in-home assessment.
Findings of fact and application of the law
There is some conflicting evidence about how frequently the Applicant showers. The Applicant’s evidence was that she was showering every day in December 2023 but that her capacity to do so has diminished to either every second day or twice weekly. It is not necessary that I resolve the issue. I accept that it is reasonable that the Applicant wishes to shower daily and that her CPTSD symptoms mean that she sometimes requires more than one shower each day.
The Applicant contends that she is at high risk of falls. Both Ms Walster and Ms Ormerod state the same. It is apparent that their assessments are based on the Applicant’s left foot impairment in combination with environmental hazards. Nevertheless, the evidence establishes that the Applicant mobilises around her home without any assistive technology (notwithstanding the fact that she uses walls, furniture and fixtures to steady herself) and when accessing the community rarely uses her scooter[67] or four wheel walker[68] though she has access to both. However, she did declare that she had recently purchased a walking stick,[69] but as to what environments and the frequency of use remains unknown. The evidence also confirms that she is independent of all transfers.[70]
[67] TB13, 406 and T3, folio 27
[68] TB8, folio 390
[69] TB13, folio 407
[70] T3, folio 27, T4, folio 45, T31, folio 162
I find that the Applicant is at high risk of falls, mobilises around the home and community without the use of assistive technology and is independent of transfers.
I am persuaded that the proposed complex bathroom modifications are required as a result of the Applicant’s physical impairments, which in combination with her psychiatric impairments, were the basis on which she met the disability requirements set down in section 24 of the Act. Paragraph 34(1)(aa) of the Act is established.
The Applicant’s stated goals in her most recent plan for the period 1 March 2023 to 29 February 2024 include continuing to live independently in her own home.[71] I am satisfied that the complex bathroom modification would assist the Applicant to pursue this goal included in her statement of goals. Paragraph 34(1)(a) of the Act is met.
[71] T51, folio 278
The evidence establishes that the provision of complex bathroom modifications would assist the Applicant to attend to hygiene, grooming and toileting tasks so as to facilitate her social and economic participation and so satisfies paragraph 34(1)(b) of the Act.
I next turned my mind to paragraph 34(1)(c) of the Act. This provision requires me to be positively satisfied that the complex bathroom modification costs represent value for money in that the costs of the support are reasonable, taking into account the benefits and the costs of alternative support.
In undertaking my assessment, I had regard to paragraph 3(3)(b) of the Act which states that in giving effect to the objects of the Act, regard must be had to the need to ensure the financial sustainability of the Scheme. I must also have regard to subsection 3(1) of the Support Rules which states that the CEO (or this Tribunal in her place) must consider, relevant to this application, whether there are “comparable supports which would achieve the same outcome at a substantially lower cost”, whether the funding of the support will likely reduce the cost of the funding of supports in the long term or improve the participant’s life stage outcomes and whether the support will increase the participant’s independence and reduce their need for other kinds of supports.
The Applicant asserts that she requires bathroom modifications largely to allow her to shower with reduced pain symptoms. In particular, she states that the current size of the floor and shower tiles increase her pain symptoms. There is no medical evidence before the Tribunal that supports a finding that a change to the tile size in her bathroom will reduce her left foot neuropathic or nociceptive pain. Certainly, the Applicant has not tendered into evidence any supporting statements from her pain or vascular specialist that would confirm her assertions. Instead, the Applicant declares that this is the case because the bathroom in the home that she sold some five years ago had larger tiles and her pain symptoms were not as severe as they are now. Under cross-examination the Applicant conceded that the increase in her pain symptoms may be explained by a deterioration in her left foot condition rather than the size of the tiles. I am of the view that this was a proper concession for the Applicant to make in the absence of corroborative medical evidence.
87.The occupational reports provided on behalf of the Applicant recommend a complex bathroom modification. Mr Cheung and Mses Ryan, Walster and Ormerod all had the benefit of meeting the Applicant and assessing her functional capacity within her home. Ms Sale did not undertake a face-to-face assessment as the Applicant refused the Respondent’s request to undergo an independent occupational therapy assessment. In her written submission the Applicant explained that due to her CPTSD and the Tribunal process she “could not consent to meeting another person face to face in my home, which is my private space, and to be assessed again”.[72] The Applicant confirmed this reasoning in her oral testimony.
[72] TB13, folio 407
I was urged to give greater weight to Mr Cheung and Mses Ryan, Walster and Ormerod’s reports given they had the benefit of meeting with the Applicant and viewing her bathroom. Such an argument has merit. However, for the reasons outlined below, I preferred the recommendations made by Ms Sale.
Ms Walster was asked to provide reasons and information as to why low-cost assistive technology and capacity building supports cannot meet the Applicant’s needs and can only be addressed by a complex bathroom modification.[73] In response she declared that no lower cost alternatives were appropriate; she provided no evidence of low cost trials she had implemented but had failed. Her assessment is apparently based on the Applicant’s statement that she had tripped on a non-slip mat. It is apparent that no consideration was given to inserting a drop down shower bench, as she declared that assistive technologies would not facilitate the Applicant’s ability to reach her lower limbs and that if used would require the Applicant to engage in inappropriate postures.
[73] Ms Walster’s response is reproduced at paragraph 53 of this Statement of Reasons
When asked about minor modifications including the grab rails Ms Walster stated that they were already installed and were ineffective. This declaration is misleading. The Applicant’s evidence is such that these grab rails were installed by the previous owners of her home; it can be no surprise that they provide no benefit to the Applicant. Further, she states that even if replaced it would require the Applicant to engage in a “weird”[74] posture. Again, this conclusion is on the basis of the current grabrails which were not installed to meet the Applicant’s functional needs. Ms Sale suggested grab rail repositioning does not support a finding that would not facilitate the proper use of grab rails. I am inclined to accept Ms Sale’s evidence on this point.
[74] T4, folio 57 and TB4, 379
Furthermore, Ms Walster did not provide a satisfactory explanation to support her statement that the use of anti-slip coating to the current tiling or anti-slip mats in the shower recess was not a viable option given the shower dimensions.
Ms Walster goes on to refer to the bathroom modification benefits including improving the Applicant’s continence hygiene. There is simply no medical or anecdotal evidence that the Applicant has any difficulties with continence. In fact, the Applicant testified that she independently attends to all hygiene tasks, including toileting and accessing the shower because of her CPTSD. Further, Ms Walster states that the modifications would ensure the safety of the Applicant’s support workers. Again, this is not relevant to the Applicant’s circumstances as she does not seek or receive any support worker assistance when showering, for the reasons already given.
93.Ms Walster states that more cost-effective adaptive equipment was considered but that the current bathroom layout does not allow for optimal use of equipment, with the example given of an electric bath chair. As already established, the Applicant is independent of all hygiene tasks. There is no evidence to suggest that the Applicant currently requires nor will require in the medium to long term assistive equipment such as an electric bath chair. Ms Walster also refers to bath boards and swivel baths only providing short-term solutions, however these items have not been recommended by any of the five occupational therapists that have provided evidence in the Applicant’s case, including Ms Walster.
94.Ms Ormerod declared that she accepted Ms Walster’s recommendations. She rejects the suggestion that the drop-down shower bench is appropriate for the Applicant on the basis that the bench, having a depth of 350mm, may result in a fall as the Applicant may be “soaped up” and slip from the bench.[75] Putting aside the fact that the Applicant could be educated about the risks of being ‘soaped up’ when using the bench, the options proposed by Ms Sale include access to a grabrail whilst sitting on the wall mounted bench. Further, without any further evidence regarding the Applicant’s seating requirements I am not satisfied that the bench provides insufficient depth for a person of the Applicant’s stature.
[75] This statement is reproduced at paragraph 54 of this Statement of Reasons
95.It is apparent that both Mses Walster and Ormerod accepted without hesitation the Applicant’s self-report that larger tiles would reduce her pain symptoms when accessing the shower. Neither refer to medical evidence to support this contention. In my view, this is unsatisfactory. I do wish to emphasise that my comments in this regard are not incompatible with a finding that the Applicant suffers daily neuropathic and nociceptive pain which is heightened, or 10/10[76] to use the Applicant’s words, when accessing her shower. As Ms Adamson correctly stated, the Applicant is the expert of her pain. Of that there can be no doubt. However, the fact remains that there is no medical evidence to suggest that changes to the bathroom and shower tile dimensions will bring about any change to the Applicant’s pain symptoms when accessing the shower.
[76] TB13, folio 408
96.To reach a positive state of satisfaction that the replacement of tiles in the bathroom would assist the Applicant to shower more frequently, medical evidence would need to be adduced as to the causal link between the small tiles and the Applicant’s exacerbation of pain symptoms in the shower (as opposed say to the fact that she does not have protective socks or boot) and that the solution to that would be larger tiles within the shower recess.
97.Ms Sale testified that she is not confident that the change in floor tiles would significantly reduce pain symptoms. Without supporting medical evidence, I too am not persuaded that increasing the tile size would result in a reduction in the Applicant’s pain symptoms nor decrease her risks of falls. Therefore, I am not satisfied that this support is reasonable in the absence of probative and compelling evidence that replacement of the bathroom tiles would provide any benefit to the Applicant.
98.I reach the conclusion that re-tiling the bathroom with larger tiles may not result in any functional improvement with greater satisfaction given the Applicant’s oral testimony. It was put to the Applicant whether it is possible that her pain symptoms when walking on the smaller bathroom tiles is not because of their size and uneven surface, but that because there has been a deterioration in her foot condition since she sold the Richmond property some five years ago. In response the Applicant stated that she did not know. She went on to state that she could not be certain without trialling another tile size.
99.For completeness, even if I were to accept that a change to the bathroom flooring would provide a benefit to the Applicant, I am not convinced that there are no comparable supports that would achieve the same outcome at a substantially lower cost. It is not apparent that the use of non-slip mats both inside the shower and in the bathroom would not have any benefits. I note that the Applicant rejects this proposal on the basis that she had used a non-slip mat apparently provided by her occupational therapist and she tripped on it. I am not persuaded that this in and of itself is sufficient evidence to conclude that the installation of non-slip matting in the shower and bathroom is not a feasible and low cost alternative to ensure that the Applicant can safely attend to her hygiene.
100.As to the non-shower bathroom modifications, these largely appear to be based on the future need of the Applicant requiring a wheelchair or shower commode. Mses Walster and Ormerod state that the bathroom modifications are not only necessary to allow the Applicant to currently attend to hygiene tasks safely but will also make provision for wheelchair access in the future.
101.Again, there is no medical evidence to support that this is the trajectory of the Applicant’s physical impairments such that she will require a wheelchair in the short, medium or long term. The evidence is such that the Applicant mobilises independently, though recently purchased a walking stick.[77] In fact, the Applicant states that she prefers not to use her four-wheel walker or her scooter in the community as she finds these too cumbersome. It is on this basis that I am not persuaded that bathroom modifications to allow for wheelchair access represents value for money nor that it is a reasonable and necessary expense.
[77] TB13, folio 407
102.This is not to say any bathroom modifications would not meet the statutory test. Ms Sale has recommended two options which she states could increase the Applicant’s safety in accessing the shower. She also recommended a trial of various mats and flooring to establish if such changes could assist the Applicant in showering with no exacerbation of her chronic pain. These remain options for the Applicant to explore.
103.I conclude that paragraph 34(1)(c) of the Act is not established in respect of the complex bathroom modifications. As the Applicant does not satisfy paragraph 34(1)(c) of the Act, I have not gone on to consider the remaining criteria under paragraphs 34(1)(d) to (f) of the Act.
104.Accordingly, the requested complex bathroom modification is not a reasonable and necessary support that can be funded and provided under the Scheme.
DECISION
105.For these reasons the Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration with directions that:
(a)the following reasonable and necessary support will be funded under the National Disability Insurance Scheme:
(i)Core
(A) $5,289.68 for assistance with preparation or meal delivery, support with meal preparation and delivery or help from a support worker to help prepare meals for 12 months.
(b)The date by which the Respondent will reassess the Applicant’s plan is 12 months from the date on which the support under paragraph a(i) is included in the Applicant’s existing statement of participant supports (the reassessment date); and
(c)all other reasonable and necessary supports in the existing statement of participant supports, not funded under paragraph a(i) (excluding any one-off assistive technology already funded) shall be replicated for a period of 12 months, from the date on which the support under paragraph a(i) is included in the Applicant’s existing statement of participant supports until the reassessment date.

Date(s) of hearing: 27 November 2024

Advocate for the Applicant: M Adamson, Disability Advocacy NSW

Counsel for the Respondent: A Hartnett

Solicitors for the Respondent: A Westenberg, Sparke Helmore Lawyers

[2025] ARTA 107

19 February 2025

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Judicial Review

Reasonable and Necessary Supports

Participant Supports

Natural Justice & Procedural Fairness

Value for Money

Date(s) of hearing:	27 November 2024
Advocate for the Applicant:	M Adamson, Disability Advocacy NSW
Counsel for the Respondent:	A Hartnett
Solicitors for the Respondent:	A Westenberg, Sparke Helmore Lawyers