XTHS and National Disability Insurance Agency (NDIS)

[2025] ARTA 599

XTHS and National Disability Insurance Agency (NDIS) [2025] ARTA 599 (20 May 2025)

Applicant:XTHS

Respondent:  National Disability Insurance Agency

Tribunal Number:                2023/4014

Tribunal:General Member J Toohey

Place:Brisbane

Date:20 May 2025

Decision:1. The decision under review, being the decision of the National Disability Insurance Agency:

(a)made on 26 May 2023 under section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth);

(b)as reassessed and approved on 21 February 2025;

is set aside under section 105 of the Administrative Review Tribunal Act 2024 (Cth) and remitted for reconsideration with the directions that the statement of participant supports includes sufficient funding for:

(a)an additional six 1:1, weekday, daytime, high-intensity support worker hours for irregular support for 10 days per year;

(b)an additional six 2:1, weekday, daytime, high-intensity support worker hours for irregular support for 26 days per year;

(c)an additional six weekday, daytime, high-intensity support worker hours per month for support workers to attend Applicant-specific training with the Applicant’s positive behaviour support practitioner or the Applicant’s other allied health practitioners;

(d)an additional 22 days/nights of short-term accommodation for respite per year, 11 of which are to be funded at the weekend rate;

(e)school bus transport to and from school, on each school day, other than for 12 days per year that the Applicant expects to attend appointments;

(f)subject to an updated quote, funding for installation of a soundproof door separating the Applicant’s bedroom from those of his siblings;

(g)three hours per week for deep cleaning of the areas of the Applicant’s house which are mainly used by the Applicant; and

(h)one hour per week for gardening for pest management.

2.The statement of participant supports is to include a reassessment date of 36 months after implementation of the new plan following this decision.

3.The management of the funding for a positive behaviour support practitioner is to be changed from Agency managed to plan managed.

4.The remaining aspects of the statement of participant supports remain unchanged. 

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – Reasonable and necessary supports – – ADNP Syndrome – Irregular support – Support worker training – Short term accommodation for respite – School transport – Soundproof door – Deep cleaning – Gardening for pest management  – Family counselling – Paid care by brother – Best interests of the child –  Reasonable for families to provide – Consumables – Interpretation of Transitional rules – Plan duration – Plan management – Reimbursement    
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth)

National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024

National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024

National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018

Cases

Darmanin and National Disability Insurance Agency [2024] AATA 1202
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
JQJT and National Disability Insurance Agency [2016] AATA 478.
NLXY and National Disability Insurance Agency [2024] AATA 2275
Secondary Materials
Explanatory Statement: National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024
NDIS Operational Guideline: Including Specific Types of Supports in Plans, 10 May 2023.  
NDIS Operational Guideline: Short Term Accommodation or Respite, 24 June 2022
NDIS Practice Standards: High intensity support skills descriptors, November 2022

NDIS Pricing Arrangements and Price Limits 2024-25, 1 October 2024

Statement of Reasons

SUMMARY

1. I have decided to set aside and remit the decision of the National Disability Insurance Agency (‘Agency’) with directions that the Applicant’s statement of participant supports (‘SPS’) includes sufficient funding for several of the supports requested by the Applicant. I have approved some of the requested supports in full and some in part. The supports I have approved in full are the increased hours for support workers to attend Applicant-specific training, and a soundproof door. The supports I have approved in part are: irregular support worker hours when the Applicant is unable to attend school, additional short-term accommodation (‘STA’) for respite, school bus transport, deep cleaning, and gardening for pest management. I have also decided that several other supports requested by the Applicant are not reasonable and necessary or are now excluded by the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (‘Transitional Rules’).

2. In addition, I have decided that the Applicant’s SPS is to include a reassessment date of 36 months and that the management of funding for a positive behaviour support practitioner is to be changed from Agency-managed to plan-managed. However, the Applicant’s request for reimbursement for some services which were provided prior to a request for variation of reassessment of an SPS which is before the Tribunal is beyond the scope of what the Tribunal can determine.    

3. This decision is made under section 105 of the Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’). The reasons for this decision are as set out below.

   INTRODUCTION

4. The main issue before the Tribunal is whether certain supports requested by the Applicant are reasonable and necessary supports to be funded in the Applicant’s SPS for the purposes of sections 33 and 34 of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’).

5. XTHS is a 14-year-old boy who lives with his parents and two siblings in Brisbane. The family relocated from Melbourne during the COVID-19 pandemic and live in a house on acreage around 30 kilometres away from the CBD. At age 10, XTHS was diagnosed a rare neurodevelopmental genetic disorder, Helsmoortel-Van der Aa Syndrome (‘ADNP Syndrome’) which has had a profound effect on his ability to independently take part in daily activities. XTHS’ behaviour support practitioner reports numerous significant challenges for XTHS, including that he:

   (a)is highly sensitive to touch and sound;

   (b)struggles to process visual information;

   (c)becomes easily distracted in visually busy environments;

   (d)feels discomfort in dimly lit spaces;

   (e)regulates himself with prolonged sensory-seeking behaviours (for example, chewing or swinging);

   (f)shows behaviours of concern including:

   (i)self-injury (biting, head hitting);

   (ii)prolonged vocalisations (high-pitched screaming for extended periods);

   (iii)physical aggression (kicking, slapping, biting, scratching);

   (iv)inappropriate touching of genitals (compulsive masturbation and rubbing against people and objects);

   (v)distress during transportation (attempting to open doors; grabbing steering wheel; hitting out at surroundings, including passengers and driver);

   (vi)faecal smearing and consumption;

   (g)has an attention span limited to approximately 30 seconds and has significantly difficulty retaining knowledge;

   (h)is non-verbal, with a receptive language age equivalent of 8 months, expressive language equivalent of 6 months and written communication below 3 years;

   (i)is completely reliant on carer support for activities including dressing, grooming, bathing and eating;

   (j)is bowel and bladder incontinent;

   (k)is often awake overnight;

   (l)struggles with climbing stairs, avoiding obstacles, maintaining balance on uneven surfaces and has significant challenges with body awareness (proprioception); and

   (m)struggles to regulate the level of force he uses when interacting with both people and objects, which can impact his ability to engage safely in everyday tasks and social interactions.[1]

   [1] Further Supplementary Joint Hearing Bundle, 1-101.

6. It is also reported that these challenges have resulted in XTHS’ mother (XM) experiencing severe burnout and contributed to a high turnover of support workers.[2] I acknowledge that the material before the Tribunal was often confronting in terms of the challenges facing XTHS and his family. His family have been determined not to relinquish care for XTHS and this commendable determination has come at a significant cost to the family’s wellbeing.

   [2] Ibid, 35.  

7. Given these challenges, it is also not surprising that XTHS receives extensive support from the NDIS. XTHS’ current SPS includes:

   (a)High-intensity support workers (‘HISW’) at a 2:1 ratio for 10 hours on all school days, 16 hours on all non-school days, and at a 1:1 ratio for eight hours of active overnight support for all nights;

   (b)STA for respite for 32 weekdays and 26 weekends per year;

   (c)$17,000 for consumables, including $12,000 for continence consumables;

   (d)ninety hours each for speech pathology, physiotherapy and occupational therapy, 22 hours for music therapy and 14 hours for continence assessment by a clinical nurse consultant;

   (e)ninety hours of specialist behaviour support with 30 hours for a behaviour management plan and training;

   (f)ninety hours of Level 2 Support Coordination; and

   (g)$2,000 for assistive technology repairs and maintenance. 

8. On 20 April 2023, a delegate of the Chief Executive Officer (‘the CEO’) of the Agency approved an SPS for the Applicant. The Applicant requested an internal review of the delegate’s decision and, on 26 May 2023, the Agency affirmed its original decision. On 2 June 2023, the Applicant applied for a review by the Administrative Appeals Tribunal (‘AAT’) under section 103 of the NDIS Act and section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’). During these proceedings the Agency updated XTHS’s SPS. It is the SPS that was approved on 21 February 2025 that is now being reviewed by the Tribunal.

9. On 3 October 2024, the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth) (‘Back on Track Amendment Act’) commenced and made significant amendments to the NDIS Act. The Tribunal will apply the amended considerations in sections 33, 34 and 35 of the NDIS Act and related rules in the Tribunal’s decision-making process.

10. On 14 October 2024, the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘the Transitional Act’), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.[3]    

    [3] This paragraph is approved for use in all Tribunal decisions.

11. The hearing was held by video on 18, 19, 20 and 21 March 2025. XTHS was not required to participate in hearing and was not present. XTHS was represented by Counsel, Mr M O'Connor, instructed by XTHS’ mother (XM). The Agency was represented by counsel, Mr P Nolan, instructed by Ms E Thomas of Maddocks Lawyers. Following the hearing, the parties were given an opportunity to provide final written submissions. The last submissions were received on 7 April 2025.

    Issues to be decided

12. The issues before the Tribunal are whether the following supports are reasonable and necessary supports for the Applicant:  

    (a)irregular 2:1 support worker assistance for six hours on each of the days where the Applicant is absent from school;

    (b)an additional one hour of 2:1 support worker assistance on each school morning;

    (c)six hours each month for support workers to attend team meetings and training;

    (d)short term accommodation (STA);

    (i)for two days per week; and,

    (ii)two consecutive weeks per year;

    (e)school bus transport to and from school;

    (f)home modifications for soundproofing;

    (g)family psychology;

    (h)supports to be provided by XTHS’ brother;

    (i)cleaning services;

    (j)gardening services;

    (k)washing machine maintenance and repairs;

    (l)consumables for:

    (i)continence;  

    (ii)soft and durable bedding and towels;

    (iii)replacement prescription glasses;

    (iv)sturdy shoes;

    (v)sensitive body wash and shampoos;

    (vi)cleaning products for sanitisation; and

    (vii)laundry products.

13. The Applicant has also requested  changes to the management and duration of XTHS’ plan and reimbursement for prior services. An additional request for wall padding and window protection in XTHS’ bedroom was withdrawn by the Applicant during the hearing. A laundry service was also requested, but the Applicant clarified during the hearing that this was presented as an alternative to demonstrate the relative value for money of the laundry consumables requested.   

    Summary of evidence

14. The Tribunal was provided with a joint hearing bundle by the parties and several bundles of supplementary material, including video and audio recordings, and these were accepted into evidence at the hearing.[4] This large amount of material (around 1400 pages) included:

    (a)the ‘T-documents’;[5]

    (b)incident reports;

    (c)carer impact statements;

    (d)letters from the XM’s treating psychologist;

    (e)reports and letters from the Applicant’s treatment team and allied health professionals;

    (f)a report from an independent psychologist;

    (g)assessment templates and quotes for home modifications;

    (h)various quotes and invoices for consumables.

    [4] The page numbering in the Joint Hearing Bundle index is adopted throughout these reasons. 

    [5] Which are all the records that the Agency considered when making the decision under review as required by section 37 of the AAT Act.

15. At the hearing, the Tribunal received oral evidence from the Applicant’s:

    (a)mother (XM);

    (b)behaviour support practitioner (BSP);

    (c)occupational therapist (OT);

    (d)service provider (SP); and

    (e)mother’s psychologist (XMP).

16. The Agency also arranged for an independent psychologist (IP) to provide oral evidence; however the contents of his report were accepted by both parties and IP was not required.

    Overview of the NDIS decision-making framework[6]

    [6] I have used a similar overview in other decisions.

17. Chapter 1, Part 2 of the NDIS Act sets out the Act’s objects and principles including, for example, that the NDIS Act is to: support the independence and social and economic participation of people with disability[7] and acknowledge and respect the role of families.[8] Decision-makers are required to give full consideration to the need to protect a child from harm[9] and have regard to the need to ensure the financial sustainability of the scheme.[10]

    [7] NDIS Act, s 3(1)(c).

    [8] Ibid, s 4(12).

    [9] Ibid, s 5(f).

    [10] Ibid, s 3(3)(b).

18. Chapter 3, Part 2 of the NDIS Act deals with participants and their plans and includes further principles in relation to the preparation, variation, reassessment and replacement of plans. This guidance includes that this planning process should, so far as reasonably practicable, recognise and respect the relationship between participants and their families and carers,[11]  and strengthen and build the capacity of families and carers to support participants who are children.[12]

    [11] Ibid, s 31(ca).

    [12] Ibid, s 31(d).

19. A participant’s plan must include a statement of the participant’s goals and aspirations[13] as well as a SPS that includes the reasonable and necessary supports that will be funded by the Agency.[14] In deciding to approve a SPS, the Agency must have regard to the matters set out in section 33(5), including applying the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘Support Rules’), and be satisfied that each support meets the criteria in section 34. The criteria in section 34(1) are that:

    (aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements …

    (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.

    [13] Ibid, s 33(1).

    [14] Ibid, s 33(2)(b).

20. The Support Rules also remain in force and provide greater explanation of the application of the crtieria in section 34. For example, in relation to assessing value for money in the application of section 34(1)(c), Rule 3.1 says that a decision-maker must consider:

    (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) …

21. The Back on Track Amendment Act added section 34(1)(f), which requires that the support is a NDIS support for the participant. This, in turn, applies the new definition of ‘NDIS support’ in section 10. Section 10 provides that rules may be made that declare whether a support is (or is not) a NDIS Support. Section 124 of Back on Track Amendment Act states that the reference to rules made under section 10 of the NDIS Act includes rules made under section 138 of the Back on Track Amendment Act, which allows the Minister to make transitional rules.

22. The Minister has made the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (‘Transitional Rules’) and these rules commenced on 3 October 2024. Schedule 1 of the Transitional Rules specifies ‘Supports that are NDIS supports unless otherwise provided’. Schedule 2 specifies ‘Supports that generally are not NDIS supports’..

23. Section 10(6) provides some limited circumstances in which the CEO may determine that a support declared as not being an NDIS support could still be support for a participant (if it replaces an NDIS support and achieves the same or better result for the same or lower cost). These are described as ‘replacement support determinations’ and are dealt with in Part 3 of the Transitional Rules. A section 10(6) determination is not listed as a reviewable decision in section 99 of the NDIS Act.

1. Section 10(6)(d) set out the criteria that the CEO must apply when making a ‘replacement support determination’, being:

   (i)the support would replace one or more other supports that are NDIS supports for the participant; and

   (ii) the cost of the support is the same or lower than the total of the costs of the supports it would replace; and

   (iii)the support would provide the same or a better outcome for the participant than the supports it would replace; and

   (iv)any other conditions specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph are met in relation to the support, the participant, or both.

2. Section 7 of the Transitional Rules says that for a replacement support determination to be made in respect of ‘Standard commercially available household items’ the support must:

   (a) be necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements; and

   (b) increase whole task independence; and

   (c) reduce or eliminate the need for a support worker or disability specific assistive technology.

3. Section 4 of the of the Transitional Rules defines ‘standard item’ to mean ‘an item that is not modified or adapted to address the functional impairments of the participant or prospective participant’.

4. The Minister also made the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024 (‘Miscellaneous Transitional Rules’). Rule 7 of the Miscellaneous Transitional Rules requires that a decision-maker must also be satisfied the support is most appropriately funded or provided through the NDIS, and not more appropriately funded or provided through other general systems of service delivery or support services. In effect, this means that decision-makers are (at least until new rules are made) applying two versions of section 34(1)(f), as it was before the amendments, and the new version as amended.

5. The NDIS Operational Guidelines also assist in making decisions in accordance with the NDIS Act. Operational guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[15] I will refer to these operational guidelines where relevant below.

   CONSIDERATION

   [15] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

   Applicant’s goals

6. Section 33(5)(a) of the NDIS Act says that, in deciding whether or not to approve a SPS, decision-makers must have regard to the participant’s statement of goals and aspirations. A copy of the Applicant’s most recent plan breakdown records XTHS’s goals as being to:

   (a)be safe, secure and settled in my home environment with a support team that know me well;

   (b)improve on my relationship with my family so they can continue supporting me without reaching burnout;

   (c)improve on my communication and social skills so I can let my family know what I need;

   (d)receive therapeutic support to build my capacity with my social and daily living skills and to continue to build on my health and wellbeing;

   (e)participate in community activities and become a valued member of my local community; and

   (f)be supported to manage my sleep difficulties.

7. I have had regard to these goals and aspirations and will refer to them where relevant below.

   Needs arising from impairment which meet the disability or early intervention requirements

8. As mentioned above, the Back on Track Amendment Act inserted section 34(1)(aa), that must be satisfied for a support to be considered reasonable and necessary and requires that:

   (aa)  the support is necessary to address needs of the participant arising from an impairment in relation to which the participant (see section 24) or the early intervention requirements (see section 25)

9. Both parties agreed that the requested supports are necessary to address needs of XTHS arising from an impairment in relation to which he meets the disability requirements. Having reviewed the material before me, I am also satisfied that this criteria is met.

   Issue (a): irregular support worker assistance during school absences

10. The Applicant was seeking an additional 25 days of 2:1 support worker assistance to cover school days when XTHS was absent from school. During the hearing, XM revised this request to say that 40 days per year was more realistic based on XTHS’ attendance history.    The Applicant submits that these absences are due to the need to attend monthly face-to-face appointments, his autoimmune and skin infection vulnerability, his history of regular illness, his documented days absent from school and the school’s policies relating to infection and illness.[16]

    [16] Applicant’s closing submissions, [8].

11. The Applicant provided a summary from XTHS’ support worker provider that lists XTHS’ absences from school in the period October 2023 to October 2024. This summary indicates that XTHS was absent from school due to illness or appointments for 39 days in this 13-month period. This is an average of three days per month. The need for 2:1 support worker assistance during daytime hours is not in dispute and is well supported by the BSP[17] and IP.[18] 

    [17] Further Supplementary Joint Hearing Bundle, 78.

    [18] Joint Hearing Bundle, 1090-1091.

12. In summary, the Agency submits that:

    (a)the number of days XTHS is unable to attend school cannot be predicted with any certainty and NDIS funding is not provided on a speculative basis;

    (b)providing funding for the possibility of a need in the future is a dangerous finding to make;

    (c)XTHS attended eight face-to-face appointments from October 2023 to October 2024;

    (d)it is reasonable to expect XTHS’ parents or brother to provide support when XTHS is unable to attend school or is required to attend an appointment.

13. I do not accept the Agency’s submission that making provision for days that XTHS does not attend school is speculative and a dangerous finding to make. It is inherent in a prospective planning process that some educated assessment will need to be made about participant’s upcoming needs. Based on XTHS’ significant disability-related health needs, it can be expected that he will be absent from school much more than would be expected for a typical teenager. Knowing the days absent over a recent 13-month period is a reasonable starting point in assessing his ongoing needs. Based on his average absence of three days per month, it is reasonable to plan for XTHS to be absent from school for 36 days per year.

14. I also do not accept that it is reasonable to expect XTHS’ 18-year-old brother to cover these care needs on an occasional basis. While XTHS’ brother is an adult, he is still completing year 12 schooling. I do not consider that it is reasonable for XTHS’ brother to take days off school to assist with XTHS’ care needs.

15. However, I do accept that there is a responsibility for parents to provide a substantial level of care and support. The Support Rules state that:

    3.4 In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:

    (a) for a participant who is a child:

    (i) that it is normal for parents to provide substantial care and support for children; and

    (ii) whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age; and

    (iii) the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and

    (iv)      whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing; [emphasis in original]

16. There is evidence that XM has experienced severe carer burnout.[19] BSP reported that XM has been diagnosed with fibromyalgia, depression, anxiety, panic attacks, and complex trauma due to the ongoing stress of managing XTHS’ behaviours and medical needs.[20] I consider there are risks to XM’s wellbeing if she was required to care for XTHS on days he cannot attend school. In these circumstances, I do not consider that it is reasonable for XM to provide this care.

    [19] Further supplementary joint hearing bundle, 35.

    [20] Ibid, 10.

17. I agree with the Agency that there is insufficient evidence that XTHS’ father (XF) is unable to provide some additional support. Knowing that it is not safe for XTHS to have less than 2:1 daytime support, if XF was to provide some additional daytime support, such as for attending face-to-face appointments, he would still need to be assisted by a 1:1 support worker. Based on the usual entitlements for carer’s leave, I consider that it is reasonable to expect XF to assist with XTHS’ care for up to 10 days per year. It is therefore reasonable and necessary to make provision for an additional six hours for 1:1 HISW 10 days per year and six hours for 2:1 HISW for 26 days per year.

18. These additional support hours are necessary to address needs arising for an impairment for which XTHS meets the disability requirements.[21] This will assist XTHS to pursue his safety and therapy goals.[22] The hours will assist the Applicant’s social and economic participation.[23] The supports hours represents value for money compared with the benefits achieved.[24] There are not comparable supports which achieve the same outcome at a substantially lower cost.[25] It is in XTHS’ best interests as a child to receive these additional supports when he is unable to attend school.[26] These support hours are likely to be beneficial for the Applicant and are recommended by appropriately qualified practitioners having regard to current good practice.[27] It is reasonable to expect XF to assist on some days that XTHS is not able to attend school.[28] Support workers are an NDIS support under item 14 of schedule 1 of the Transitional Rules.[29] Support worker hours when XTHS is unable to attend school is most appropriately funded under the NDIS, and not more appropriately funded by the health or education systems.[30] In reaching this conclusion I have had regard to the need to ensure the financial sustainability of the scheme.[31]

    [21] NDIS Act ss 24, 34(1)(aa).

    [22] Ibid, s 34(1)(a).

    [23] Ibid, s 34(1)(b).

    [24] Ibid, s 34(1)(c).

    [25] Support Rules, r3.1(a).

    [26] NDIS Act s 5(f).

    [27] Ibid, s 34(1)(d).

    [28] Ibid, s 34(1)(e).

    [29] Ibid, ss 10, 34(1)(f).

    [30] Miscellaneous Transitional Rules, s 7.

    [31] NDIS Act, s 3(3)(b).

    Issue (b): additional hour of 2:1 support worker assistance each school morning

19. The Applicant seeks an additional one hour (an increase from three hours to four hours) of 2:1 support worker assistance on each school morning. The Applicant says that this is required due to the additional cleaning and report writing that support workers are required to do after XTHS departs for school. The Applicant also says that it is difficult to retain support worker staff in the Applicant’s location when the support workers are only completing a three-hour shift. The Applicant relies on the lived experience of XM and the recommendations of OT and SP for this request.

20. In summary, in her oral evidence, XM said that:

    (a)XTHS’ faecal smearing and pica behaviours make it essential to complete sanitisation tasks such as steam mopping and disinfecting door handles;

    (b)there has been turnover of around 75 support workers in the past 3 years, and this was partly due to the shift length as well as XTHS’ behaviours. It is difficult to source workers for a 3-hour shift, with 30 minutes travel.

    (c)adjusting to new people in the house is a major trigger for XTHS’ behaviours to worsen;

    (d)the incident documentation for BSP takes around 45 minutes to complete; and

    (e)XM was not able to assist with some tasks, such as lunch preparation as she had to prepare the lunches for her other children.    

21. The support from OT for this additional hour was not clear from her written reports. In her oral evidence, OT confirmed that 2:1 supports were not required for XTHS once he had left for school. The additional hour is supported by SP. However, as the employer of the support workers, I note that SP does have a potential conflict of interest in recommending increased hours. While I do not consider that SP has in any way exaggerated the need for this additional hour, I do give her evidence slightly less weight in this regard.

22. To the extent the XM says that the HISW are required to prepare XTHS’ lunch and school bags as XM is attending to XTHS’ siblings’ needs, I am concerned that this does not properly take account of what it is reasonable for families to provide. In this respect, I consider that XTHS’ older siblings can attend to their own school preparation needs. This would free up time for XM to assist with XTHS’ school lunch and bag, which would in turn allow the HISW to attend to other essential tasks, including reporting.

23. I do not consider that the practical issues with the length of shifts for the support workers is sufficient to consider that this additional hour is reasonable and necessary. I accept the Agency’s submissions that the relevant employment award provides for minimum shifts of two or three hours depending on the service provided. Taken together, I am not satisfied that that there is sufficient information before me to consider that an additional hour of 2:1 HISW assistance on each school morning is reasonable and necessary.      

    Issue (c): support worker team meetings and training

24. The Applicant seeks six hours per month of additional HISW, for support workers to attend regular meeting and training including with the Applicant’s speech pathologist, physiotherapist, occupational therapist and behavioural support practitioner. The Applicant relies on the report of IP which says:

    … the disability support staff will require regular training delivered by the behaviour practitioner, which focusses on the functional behavioural assessment and the Positive Behaviour Support Plan.

    Staff will need subsequent training to enhance their skills in delivering behavioural interventions, as well as training from allied health specialists if delivering strategies by speech or occupational therapists or physiotherapists. Importantly, the training undertaken by disability support staff/therapy assistants needs to be competency based.

    The support coordinator, in partnership with the behaviour practitioner, are required to create expected competencies which need to be demonstrated by staff prior to implementing the Positive Behaviour Support Plan.

25. The Applicant also relies on the specialist support coordinator report at page 211 of the joint hearing bundle, which recommends ‘[i]nitial intensive support from the PBSP to upskill and guide team towards best practices around case-noting, incident reporting and the importance of data collection’.

26. The Agency submits that training for support workers is not a NDIS support under the Transitional Rules. The Agency says that such training is not specifically provided for in item 14 of schedule 1, entitled ‘Daily Personal Activities’. The Agency also submits that the references to training in items 10, 12 and 16 are for a person to provide training rather than for a support worker to participate in training. As I concluded recently in YHCQ:

    I think it is implicit in the Transitional Rules that NDIS supports that included providing training to support workers would cover the funding of support workers to take part in this training.[32]

    [32] YHCQ and National Disability Insurance Agency (NDIS) [2025] ARTA 267, 30 [59].

27. This remains my view. It is the responsibility of the service provider to ensure that their workers continue to meet the appropriate baseline level of competencies, which in this case,  are those set out in the HISW skills descriptors.[33] However, the additional competencies that are required to care for XTHS and his complex needs, including regularly training sessions with the PBSP and other allied health professionals is a good practice and is most appropriately provided by the NDIS.

    [33] NDIS Practice Standards: High intensity support skills descriptors, November 2022.

28. I would observe here the Agency is encouraging quite a limiting interpretation of schedule 1 of the Transitional Rules, which I don’t consider is warranted. The approach of the Agency is to say that, as support workers receiving training in a participant’s needs is not specifically referred to in schedule 1, then the Tribunal should consider that it is not a NDIS support for the participant. This is not the way in which schedule 1 is drafted. Most of the lists of supports in schedule 1 have a general descriptor with a list prefaced by the words: ‘[t]his includes the following …’. Applying the usual rules of statutory interpretation, these should be treated as inclusive rather than exhaustive lists which would allow for other items not specifically mentioned to fall within the category if this was appropriate. This is contrasted with schedule 2, which does say ‘[t]he following …’ which will usually denote an exhaustive list.[34] There would be no discretion to add a support to a schedule 2 category if it was not specifically listed.

    [34] For a discussion of the term ‘includes’ see: Dennis Pearce, Statutory Interpretation in Australia (Lexis Nexis, 10^th ed, 2024) [6.10].

29. The Explanatory Statement to the Transitional Rules states:

    The Instrument sets out the supports that are declared to be NDIS supports, including whether they are NDIS supports for participants generally, or only when the support is specifically stated in a participant’s plan. These supports are described generally to ensure that participants continue to have choice and control over how they use their plans.

    …

    The Instrument also declares supports that are not NDIS supports. It is important to note that a support will not be an NDIS support if it is declared not to be, even if that support could otherwise fall within one of the categories of supports that are declared to be NDIS supports.[35]

    [35] Explanatory Statement, National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth), 4.

30. In my view, this explanation supports the approach that schedule 1 should be considered as providing general descriptors, with some flexibility in how the lists are interpreted, but that items specified in schedule 2 are excluded and there is no discretion in relation to this exclusion (other than what might be covered by a CEO replacement support determination).    

31. The Agency also refers to the NDIS Pricing Arrangements and Price Limits 2024-25 (‘Price Guide’) in support of their submission that training and upskilling of support workers is the responsibility of the employing service provider. The Agency says that the Price Guide ‘expressly states the costs of training and upskilling staff, and of supervision, are included in the base price limits for supports and are not considered billable Non-Face-to-Face supports’. With respect, I think this is overstating what the Price Guide says when read in context of the full quote:

    For example, the Assistance with Self Care support items are described as covering activities “Assisting with, and/or supervising, personal tasks of daily life to develop skills of the participant to live as autonomously as possible”. Therefore, time spent on Non-Face-to-Face activities that assist the participant – for example, writing reports for co-workers and other providers about the client’s progress with skill development – could be claimed against this support item.

    The costs of training and up-skilling staff, and of supervision, are included in the base price limits for supports and are not considered billable Non-Face-to-Face supports. However, research undertaken by a capacity-building provider specifically linked to the needs of a participant and to the achievement of the participant’s goals may be billable as a Non-Face-to-Face support with the participant’s prior agreement.[36]

    [36] Price Guide, 18.

1. In my view, support workers receiving training from BSP or other allied health professionals does fall within this example of Non-Face-to-Face activities that assist the participant. It is akin to the information sharing contemplated by the example of ‘writing reports for co-workers’ is specifically linked to the strategies and progress in achieving  XTHS’ goals. While the appropriate item for invoicing under the Price Guide is not a matter for the Tribunal to determine in this application, I would note that an alternative item that this training might be invoiced against could be the ‘Multidisciplinary Team Supports’ which is described as:

   This support item enables a coordinated multidisciplinary approach to be delivered to participants 7 or older. All team members will claim against a single support item, thereby increasing flexibility in service delivery to reflect the changing needs of a participant.[37]

   [37] Price Guide, 91.

2. However, while the Price Guide might be a useful reference point at times, I do not consider that the Price Guide is intended to state what can or cannot be a support for a participant. That is more the role of the Transitional Rules. As the introduction to the Price Guide states:

   The intent of these documents is to assist participants and providers, both current and prospective, to understand the ways in which price controls work in the NDIS. Price regulation is in place to help ensure that participants receive value for money when they purchase the supports that they need.[38]

   [38] NDIS Pricing Arrangements and Price Limits 2024-25, 7.

3. Support worker training, specific to implementing strategies for XTHS’ care, is necessary to address needs arising for an impairment for which XTHS meets the disability requirements.[39] This training will assist XTHS to pursue his capacity building and communication goals.[40] The training will assist the Applicant’s social participation.[41] The training represents value for money compared with the benefits achieved.[42] There are not comparable supports which achieve the same outcome at a substantially lower cost.[43] It is in XTHS’ best interests as a child for his support team to receive regular training in his specific requirements.[44] A collaborative team approach between support workers and allied health practitioners is likely to be beneficial having regard to current good practice.[45] It is not reasonable for XTHS’ family to provide this specialised training.[46] Training of support workers are an NDIS support under Items 10, 12 and 16 of Schedule 1 of the Transitional Rules.[47] This support worker training is most appropriately funded under the NDIS, and not more appropriately provided by the registered NDIS provider engaging the HISWs. More general training to meet the HISW skills descriptors will remain the responsibility of the registered provider.[48] In reaching this conclusion, I have had regard to the need to ensure the financial sustainability of the scheme.[49]

   [39] NDIS Act ss 24, 34(1)(aa).

   [40] Ibid, s 34(1)(a).

   [41] Ibid, s 34(1)(b).

   [42] Ibid, s 4(1)(c).

   [43] Support Rules, Rule 3.1(a).

   [44] NDIS Act s 5(f).

   [45] Ibid, s 34(1)(d).

   [46] Ibid, s 34(1)(e).

   [47] Ibid, ss 10 and 34(1)(f).

   [48] Miscellaneous Transitional Rules s 7

   [49] NDIS Act s 3(3)(b).

   Issue (d): short term accommodation

4. The Applicant seeks STA for respite on each Sunday and Monday night and for a two-week consecutive period. The significant impacts of XTHS’ behaviours on his family are confirmed by IP who says:

   The current findings indicate [XTHS’] behaviours have significantly impacted on the family unit. The information gleaned from the interview with [XM], along with the available reports, confirm that family members, particularly [XM], have endured physical and psychological injuries.[50]

   [50] Joint Hearing Bundle, 1089.

5. IP also recommends increased respite, saying:

   … increased access to respite will provide opportunities for [XF] and [XM] and their children to recover and re-energise during the week. During school holidays, [XTHS’] increased attendance to respite will not only provide a process of recovery for the family, but more so [XTHS] to adapt to another environment and engage with support workers across a different setting.[51]

   [51] Joint Hearing Bundle, 1096.

6. More specifically, respite for two nights per week, including a weekend night, is recommended by PBSP who says:

   [XTHS’] family to gain respite, stabilise their mental and physical health, and recuperate relationships between each family member. This is conclusive for both the 2:1 supports and the addition of respite twice a week. Respite for [XTHS] will help the family to regenerate aiding in supporting [XTHS’] sibling’s education (by performing homework undisturbed once a week), and reunifying the other family members on one day at the weekend.[52]

   [52] Ibid, 845.

7. Continuing this respite is also recommended by OT who reports that:

   The family unit is at an extreme risk of breakdown. To prevent a breakdown of the family unit, [XTHS] will benefit from continuing to receive respite funding for short term accommodation to enable his family to have respite time to rest and recharge.[53]

   [53] Ibid, 880.

8. In summary, the Agency submits that:

   (a)the Applicant receives funding for 58 days of STA per year;

   (b)the Price Guide says that STA or respite have the characteristics of being short-term, temporary, and non-typical;[54]

   (c)the STA or Respite Guideline states that the Agency will not fund more than 60 days STA per year for a child;[55]

   (d)the regular pattern of STA requested is not STA and respite within the meaning of item 5(b) in schedule 1 of the Transitional Rules;

   (e)the pattern requested is part-time out-of-home care which is the responsibility of the child protection services and excluded in item 14(i) of schedule 2 to the Transitional Rules;

   (f)the two-week consecutive period requested is for a holiday which is excluded by item 6(a) in schedule 2 of the Transitional Rules.

   [54] Referring to: NDIS Pricing Arrangements and Price Limits 2024-25, 47.

   [55] Referring to: NDIS Operational Guideline: Short Term Accommodation or Respite, 24 June 2022, 5.

9. In reply, the Applicant raises concerns with procedural fairness and the Agency’s conduct as a model litigant in that the Agency’s submissions made with regards to the Price Guide and the STA or Respite Guideline were not raised until after evidence had closed and  therefore not able to be tested with any of the expert witnesses. The Applicant also raises that the STA or Respite Guideline was not included in the joint hearing bundle.

10. I am sympathetic to the Applicant’s concerns. The Agency requested an opportunity to provided written submissions but undertook to limit this to ensuring the accuracy of the oral submissions made. The Applicant objected to this noting the cost in preparing a reply and that the Applicant was privately funding counsel. I agreed to allow the written submissions, on a shortened timeframe, due to the need for clarity with regards to the Transitional Rules, which remain relatively new. The Agency did not refer to the Price Guide in their oral submissions. As noted earlier, I do not consider that the Price Guide is particularly helpful in assessing whether a support is reasonable and necessary as this is not the purpose of the Price Guide.  The STA or Respite Guideline was specifically referred to in the Agency’s closing submissions. The operational guidelines are published on the NDIS website and were always available for the parties and their witnesses to refer to. I agree it would have been far preferable for the Agency to have squarely put these parts of the STA or Respite Guideline to the witnesses. However, as will be seen below, as I do not make any adverse finding against the Applicant with regards to the Price Guide or the STA or Respite Guideline, I do not consider that a procedural fairness issue applies in practice.

11. I acknowledge that the STA or Respite Guideline is written in a way that seems to suggest there is a hard limit on the number of days that can be provided for STA or respite for a child. Pages 5 and 6 of the STA or Respite Guideline states:

    What about supports for children at risk of needing accommodation outside the family home?

    We may fund more than 28 days per year if children are at risk of going to residential care.

    We won’t fund more than 30 days at a time or more than 60 days per year.

    But first we’ll look at what mix of supports might help a child and family to stay together. For example, this may include:

    • Short Term Accommodation including respite

    • personal care in your home

    • supports to access the community

    • supports to help manage behaviours of concern

    • home modifications in your family home.

    You may be able to get help from the child protection service in your state as well as the support through us. The supports may be different depending on the state or territory you live in.

12. With regards to the respective responsibilities of the NDIS and the child protection systems, the Support Rules state:

    Child protection and family support

    7.11 The NDIS will be responsible for:

    (a) supports for children, families and carers, required as a direct result of a child's disability, that enable families and carers to sustainably maintain their caring role, including community participation, therapeutic and behavioural supports and additional respite and aids and equipment; and

    (b) where a child is in out-of-home care—supports specific to the child's disability (or developmental delay), which are additional to the needs of children of similar ages, in similar out-of-home care arrangements. The diversity of out-of-home care arrangements is recognised and the level of reasonable and necessary supports will reflect the circumstances of the individual child.

    7.12 The NDIS will not be responsible for:

    (a) statutory child protection services required by families who have entered, or are at risk of entering, the statutory child protection system; or

    (b) general parenting programs, counselling or other supports for families, which are provided to families at risk of child protection intervention and to the broader community, including making them accessible and appropriate for families with disability; or

    (c) funding or providing out-of-home care or support to carers of children in out-of-home care where these supports are not additional to the needs of children of similar age in similar out-of-home care arrangements.

13. I do not accept the Agency’s submission that the frequency of STA requested falls outside of the meaning of STA and that this level of STA equates to out-of-home care. In my view, the Support Rules make it clear that the NDIS is responsible for respite which is required as a direct result of a child's disability and enable families to sustainably maintain their caring role. Child protection systems are responsible for providing out-of-home care which is not additional to the needs of children of similar age in similar out-of-home care arrangements. Based on the evidence before me, XTHS’s request for two STA nights per week, including one weekend night, is as a direct result of his disability and need to sustain the family’s caring role. It is not out-of-home care that would be provided to children in similar out-of-home care arrangements.

14. To the extent that the STA or Respite Guideline seek to impose a 60-day limit on the number of STA days per year that can be funded for a child, I consider that this is inconsistent with the NDIS Act and Support Rules. The expert evidence and lived experience evidence before me indicates that two nights of STA per week is recommended for XTHS and beneficial for his family. However, it is less clear to me that two nights of STA per week is required every week of the year. Respite, at least in part, allows XTHS’ siblings to complete homework, and I think it is reasonable to conclude that this is most important during school terms. I also  consider that the addition of a soundproof door, approved below, should also reduce disturbance to XTHS’ siblings. It is also reasonable to expect families to provide some additional care for school age children during school holidays. On balance, I consider that two nights of STA per week for 40 weeks per year (80 nights per year) with one night on each of these weeks to be funded at the weekend rate, is reasonable and necessary.

15. In reaching this conclusion, I have also considered that two nights of STA per week during school terms is in the best interests of XTHS as a child as it preserves positive relationships between XTHS and his family members.[56] For similar reasons, I consider that two nights of STA per week during school terms falls within item 5(b) of schedule 1 of the Transitional Rules and is an NDIS support for XTHS. I do not consider that this STA is excluded by item 14(i) of schedule 2 of the Transitional Rules.

    [56] NDIS Act s 5(f)(iii).

16. Two nights of STA per week during school terms is necessary to address needs arising for an impairment for which XTHS meets the disability requirements.[57] This respite will assist XTHS to pursue his goal of improving his relationship with his family without family  burnout.[58] The respite will assist the Applicant’s social participation.[59] This level of respite represents value-for-money compared with the benefits achieved.[60] There are not comparable supports which achieve the same outcome at a substantially lower cost.[61] It is in XTHS’ best interests as a child for him to build independence while maintaining the wellbeing of his family.[62] This STA is likely to be beneficial having regard to current good practice and is recommended by XTHS’ and his families treating team.[63] It is reasonable for XTHS’ family to provide additional care for XTHS without this same level of respite during school holidays.[64] STA for respite is an NDIS support under item 5 of schedule 1 of the Transitional Rules.[65] Respite is most appropriately funded under the NDIS, and not more appropriately provided by the child protection and family support system.[66] In reaching this conclusion I have had regard to the need to ensure the financial sustainability of the scheme.[67]

    [57] Ibid, ss 24, 34(1)(aa).

    [58] Ibid, s 34(1)(a).

    [59] Ibid, s 34(1)(b).

    [60] Ibid, s (1)(c).

    [61] Support Rules, r 3.1(a).

    [62] NDIS Act, s 5(f).

    [63] Ibid, s 34(1)(d).

    [64] Ibid, s 34(1)(e).

    [65] Ibid, ss 10, 34(1)(f).

    [66] Section 7 of the Miscellaneous Transitional Rules.

    [67] NDIS Act, s 3(3)(b).

17. With regards to the two-weeks consecutive STA, the Applicant also submits that:

    The respondent’s attempt to categorise a two-week annual respite during which time the family might go on a holiday, as support for a holiday and therefore excluded under item 6(a) in schedule 2, is a baseless and somewhat mischievous. Respite in no way funds a holiday; it is purely respite and included under item 5(b) in Schedule 1.[68]

    [68] Applicant’s Closing Submissions, [41].

18. I do not agree with the Applicant the Agency’s submissions on this support are baseless. In her oral evidence, BSP was clear that her recommendation for consecutive STA was so that the XTHS could go on a family holiday. I agree with the Agency that the evidence indicates that the purpose of this STA is for XTHS to take part in a family holiday. The benefits of a recent family holiday were also highlighted in XM’s oral evidence. This is not STA or respite as contemplated by item 5(b) of schedule 1 of the Transitional Rules. In my view this STA is excluded by item 6(a) in schedule 2 of the Transitional Rules. Item 6 is the category ‘Day-to-day living costs— travel and transport’ and say that that following are not NDIS supports:

    (a) cruises, holiday packages, holiday accommodation, and airfares, including interstate and overseas travel, and passports, visas, activities and meals included in travel;  

19. The Applicant’s family may wish to flexibly use some of the Applicant’s support worker hours or STA funding in a way which allows XTHS to be accompanied on a family holiday. This would be a matter for the family to consider whether some of the other STA and support worker hours could be forgone and pooled for this purpose. I do not consider that STA for this purpose is an NDIS support for XTHS. It therefore cannot be funded by operation of sections 10 and 34(1)(f) of the NDIS Act and Schedule 2 of the Transitional Rules.  

    Issue (e): school bus transport

20. The Applicant seeks funding for school bus transport to and from school. This is a bus service provides through the school’s parent and citizens association which costs around $27,000 per year.[69] The school principal has confirmed that XTHS is not eligible for state government school transport funding as he does not attend his nearest special school.[70] The Applicant relies on the recommendation of OT who states that:

    [XTHS] requires NDIS funded transport funding to enable him to travel to/from school with his peers utilising school transport. This experience will expose [XTHS] socially to a calm group of school peers and will provide opportunities for [XTHS] to participate socially in his school community with the assistance of a dedicated support worker. [XTHS] requires 2:1 support for school travel (driver and chaperone) who can scaffold his communication and enable [XTHS] to manage any environmental triggers that may heighten his senses and aggravate behaviours of concern. In addition the support worker will also support [XTHS] to learn essential travel skills of boarding, waiting his turn, following instructions, moving from the vehicle to his classroom. These skills are essential and foundational skills that will improve [XTHS’] overall sense of belonging and community participation.[71]

    [69] Further Supplementary Joint Hearing Bundle, 109.

    [70] Joint Hearing Bundle, 699.

    [71] Ibid, 880.

21. In her oral evidence, XM explained that XTHS’s school was selected when relocating from Melbourne with the assistance of XTHS’ grandparents who assessed several schools including by meeting with school principals. XM was not aware the Victorian and Queensland governments had different agreement with the NDIS and that the school transport funding that XTHS had in his plan when he lived in Victoria was not assured when he moved to Queensland. XM also described having more than one car accident when driving XTHS to  or from school and that she is no longer capable of safely driving XTHS to or from school.  XM also said that it would be too disruptive for XTHS to change schools now as it had taken two years for him to adjust to his current school.

22. The Applicant also submits that this bus service is value for money when compared to the cost of two support workers transporting XTHS to school which the Applicant estimates would cost around $60,000 more per year.[72]

    [72] Further Supplementary Joint Hearing Bundle, 112.

23. The Agency submits that:

    (a) The Applicant is funded for 10 hours of 2:1 high intensity supports each school day, which provides sufficient time for support workers to transport the Applicant to and from school or assist his parents to transport the Applicant.

    (b) It is normal and reasonably expected for parents to provide care and support for their children, including transporting them to and from school.

    (c) The Tribunal has found that it is reasonable to expect families to bear the “responsibility and cost of transporting their children to and from school, being an everyday transport requirement”.

    (d) The requested transport is not an NDIS support under s34(1)(f) of the NDIS Act and cannot be funded by the Respondent. “Transport for children as part of their reasonable care and support provided by families or carers” is excluded under item 6(g) of clause 1 of Schedule 2 to the Transitional Rules.

    The Respondent contends that the request for school transport funding does not satisfy ss34(1)(aa), (c), (e) and (f) of the NDIS Act, and is excluded under the Transitional Rules and r5.1(c) of the Supports Rules. [73]

    [73] Page 43 of the Joint Hearing Bundle.

1. I do not accept the Agency’s submission (a). Having the support workers provide this transport would leave XTHS with some period in which he does not receive 2:1 supports during the day, which is contrary to the consensus view of the experts of what is required to ensure XTHS is safely cared for. The Agency does not contest the Applicant’s costing in which the Applicant estimates that 2:1 support workers providing XTHS’ school transport would cost around $88,000 per year. I also accept that this does not represent a lower cost alternative to the school bus.

2. In addition, the expert evidence indicates that, if XF or XM provided school transport for XTHS, they would still need to be accompanied by a high intensity support worker to ensure the driver and XTHS’ safety. Based on the evidence before me, I also accept the XM would not be able to provide this second support worker role due to the impact this would have on her mental health and wellbeing. Providing a 1:1 support worker to accompany XF and XTHS for school transport would cost around $44,000 per year. This is far greater than the current quote for the school bus, being $27,000 per year. A hybrid approach, such as if XF and a support worker provided the morning transport and the bus was used in the afternoon, would also seem to cost approximately $35,000 per year.          

3. In support of submissions (b) and (c) above, the Agency refers to the Tribunal decisions in NLXY[74] and JQJT.[75] I agree with the Applicant that the facts in NLXY can be distinguished from XTHS’ circumstances. At paragraph 72 of NLXY, Member Frost states that:

   … NLXY does not require support to complete activities of daily living beyond the assistance of his family. He does not require any restraints or modifications in a motor vehicle. In this regard, the Tribunal finds that NLXY’s needs in being transported to and from school are not ‘substantially greater’ than other children. While the Tribunal accepts that NLXY cannot yet use public transport, this is not unusual for a 13 year-old child. Although the request for support to transport NLXY to the specialist school relates to his attendance at that particular school, the requirement to drive NLXY related to practical issues, such as distance, availability and family health, rather than anything specifically related to his disability. To this end, NLXY is currently being transported by a family friend and otherwise by his mother. NLXY’s father cannot undertake this journey due to work commitments and NLXY’s grandfather’s health means he avoids driving long distances. That is, these alternative options have been discounted for practical reasons unrelated to NLXY’s disability.

   [74] NLXY and National Disability Insurance Agency [2024] AATA 2275, [70].

   [75] JQJT and National Disability Insurance Agency [2016] AATA 478, [35].

4. XTHS’ parents have selected a school which is not their nearest special school, and this bears some similarity to the facts in NLXY. However, XTHS transport needs are directly related to his very significant impairments. XTHS requires restraint and 2:1 supports for transport. He would be completely unable to travel to or from school without supports and restrictive practices due to the risk to himself and others. In my view, it would be quite common for a 14-year-old to travel to and from school using public transport. That this option is not available to XTHS is directly related to his impairments. I consider that section 34(1)(aa) is satisfied. Transport supports are necessary to address needs of XTHS which arise from an impairment in relation to which the participant meets the disability requirements.

5. XTHS’ circumstances are more similar to those of JQJT who is described at paragraph 1 in that decision as ‘a 13-year-old boy who has severe autism, severe intellectual and language delay, and attention deficit hyperactivity disorder. He is unable to express himself verbally and needs constant supervision and assistance with all activities of daily living.’ JQJT’s aggressive behaviours during driving and the need for a restraint are described at paragraph 15.

6. The Tribunal in JQJT concluded that it was reasonable for JQJT’s family to provide transport for community access on two occasions a week during school holidays. The Tribunal also concluded that it was not reasonable for JQJT’s family to provide transport on weekends during school terms. This took into account that JQJT’s family were transporting him to and from school.[76] I don’t agree with the Agency that JQJT is an authority for the proposition is it reasonable to expect families to bear the responsibility for school transport. I agree with the approach taken in JQJT in applying the NDIS Act and Support Rules to the specific circumstances of the participant and the support in question.

   [76] Ibid, [43]-[44].

7. The Support Rules state that:

   Reasonable family, carer and other support

   3.4 In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:

   (a) for a participant who is a child:

   (i) that it is normal for parents to provide substantial care and support for

   children; and

   (ii) whether, because of the child’s disability, the child’s care needs are

   substantially greater than those of other children of a similar age; and

   (iii) the extent of any risks to the wellbeing of the participant’s family members

   or carer or carers; and

   (iv) whether the funding or provision of the support for a family would improve

   the child’s capacity;

8. Applying rule 3.4(a), I consider that is it normal for parents to transport their children to and from school, however I also agree with the observation in JQJT that many teenagers have a degree of independence to use public transport or ride a bicycle, for example.[77] As indicated above, due to his disability, XTHS’ care needs are substantially greater than those of other children of a similar age. There are significant risks identified with the wellbeing of XM in providing school transport. It is not reasonable to expect XM to provide this transport. As above, OT has also recommended the use of the bus as a support, which is intended to improve XTHS’ capacity.

   [77] Ibid, [37].

9. The situation with regards to XF providing school transport is somewhat less clear in terms of risks. There is little evidence before the Tribunal that XF has experienced the carer burnout that is reported for XM. In her oral evidence, XM reported that XF:

   (a)left full-time employment three years ago when XM had a nervous breakdown;

   (b)has been working as a consultant one or two days per week;

   (c)manages the family’s investments;

   (d)attends a rented office in the city each weekday;

   (e)leave home at 6:45 am and returns at 7:00 pm; and

   (f)is looking for full-time employment as their current income is insufficient.

10. XF did not provided oral evidence to the Tribunal. It is not clear to me why XF is unable to engage in some of these office-based tasks from home while XTHS is at school. As such, it might otherwise appear reasonable to expect that XF could provide at least some school transport for XTHS for the purpose of section 34(1)(e). I say otherwise here as my conclusion on this issue is impacted by the value for money considerations in section 34(1)(c) discussed above with regards to the need for at least a 1:1 support worker to accompany a parent and XTHS during school transport. Having regard to the need to ensure the financial sustainability of the scheme, it would be incongruent to conclude that XF and a 1:1 support worker providing school transport is the best option.[78] It would also appear that the capacity building aspects of XTHS using the school bus are in XTHS’ best interests as a child.[79] In these circumstances, I do not consider that it is reasonable for XTHS’ family to provide his school transport.

    [78] NDIS Act s 3(3)(b).

    [79] Ibid, s 5(f).

11. However, noting the conclusion above with regards to irregular support hours when XTHS does not attend school, is can also be anticipated that XTHS will not require school transport for an average of three days per month, or 36 days per year. The funding for school transport should, in principle, also be reduced in line with the projected absences. This is complicated by the need for notification of cancellations. It is reasonable to consider that XTHS’ attending appointments will be known absences, so sufficient notice can be provided to avoid a fee. Based on the Applicant’s estimate of one appointment per month, the amount of school bus funding should also be reduced by 24 trips per year. 

12. With regards to the Transitional Rules, the Agency contends school transport is ‘[t]ransport for children as part of their reasonable care and support provided by families or carers’ which is excluded under item 6(g) of schedule 2 to the Transitional Rules. The Applicant submits that ‘transport for the purposes of participants attending school’ is a NDIS support for XTHS under item 6(b) of schedule 1 of the Transitional Rules. Page 32 of the Explanatory Statement confirms that the following intent of schedule 2 of the Transitional Rules:

    This schedule reflects existing arrangements as outlined in the National Disability

    Insurance Scheme (Supports for Participants) Rules 2013 (Supports for Participants

    Rules) and intergovernmental agreements such as the applied principles and tables

    of support and the Disability Reform Council’s Communique dated 28 July 2019.

13. With regards to the respective responsibilities of the NDIS and education systems, the Support Rules state:

    School education

    7.13 The NDIS will be responsible for supports that a student requires that are associated with the functional impact of the student’s disability on their activities of daily living (that is, those not primarily relating to education or training attainment), such as personal care and support, transport to and from school and specialist supports for transition from school education to further education, training or employment that are required because of the student's disability. Any supports funded by the NDIS will recognise the operational requirements and educational objectives of schools.

    7.14 The NDIS will not be responsible for personalising either learning or supports for students that primarily relate to their educational attainment (including teaching, learning assistance and aids, school building modifications and transport between school activities).

    [emphasis added]

14. I do not consider that the item 6(g) of schedule 2 to the Transitional Rules was intended to always exclude school transport from being a NDIS support. This would make the inclusion of school transport as a NDIS support in item 6(b) of schedule 1 of the Transitional Rules and rule 7.13 of the Support Rules redundant. Potentially, always excluding school transport could also alter the constitutional balance of responsibilities between the Commonwealth and State governments with regards to school education which was clearly not intended in the Transitional Rules.

15. However, this is not to say that school transport will be a NDIS support in all circumstances. Depending on the circumstances for individual participants there will be times in which the exclusion in item 6(g) of schedule 2 to the Transitional Rules will apply to school transport as it is part of the reasonable care and support provided by families. However, in XTHS’s circumstances, as outlined above, I do not consider that his school transport is part of the reasonable care and support to be provided by families. XTHS’ support needs and risks during his school transport put this beyond what is reasonable care provided by families.        

16. I consider that school transport is a NDIS support for XTHS under item 6(b) of schedule 1 of the Transitional Rules. School transport for XTHS is not excluded under item 6(g) of schedule 2 to the Transitional Rules. Based on rule 7.13 of the Support Rules, I also consider that school transport for XTHS is most appropriately funded through the NDIS, and not more appropriately funded though the education system.[80]

    [80] Miscellaneous Transitional Rules s 7; Support Rules r 7.4.

17. School transport is necessary to address needs arising for an impairment for which XTHS meets the disability requirements.[81] School transport will assist XTHS to pursue his goals with regards to social skills and community participation.[82] The transport  will assist the Applicant’s social and economic participation.[83] Using the school bus represents value for money compared with the benefits achieved.[84] There are not comparable supports which achieve the same outcome at a substantially lower cost.[85] It is in XTHS’ best interests as a child to attend school.[86] The school bus is likely to be beneficial for XTHS as recommended by appropriately qualified practitioners having regard to current good practice.[87] It is not reasonable to expect XF or XM to provide school transport.[88] School transport is an NDIS support under item 6 of schedule 1 of the Transitional Rules.[89] School transport is most appropriately funded under the NDIS, and not more appropriately funded by the education system.[90] In reaching this conclusion I have had regard to the need to ensure the financial sustainability of the scheme.[91]

    [81] NDIS Act ss 24 and 34(1)(aa).

    [82] Ibid s 34(1)(a).

    [83] Ibid s 34(1)(b).

    [84] Ibid s 34(1)(c).

    [85] Support Rules r 3.1(a).

    [86] NDIS Act s 5(f).

    [87] Ibid s 34(1)(d).

    [88] Ibid s 34(1)(e).

    [89] Ibid ss 10, 34(1)(f).

    [90] Miscellaneous Transitional Rules, s 7.

    [91] NDIS Act s 3(3)(b).

    Issue (f): home modifications for soundproofing

18. The Applicant seeks funding to install a soundproof door to reduce the level of noise disturbance from XTHS on his siblings. The Applicant relies on the Home Modification Assessment Template completed by OT which states:

    - [XTHS] has been diagnosed with sensory processing disorder. He requires daily intense sensory input through specific activities, which is disrupted by rainy weather and other triggers, leading to challenging behaviors.

    - These behaviors of concern include physical aggression, verbal aggression and property damage, negatively impacting his family's well being. [XTHS’] sleep is frequently disrupted with challenging behaviours of concern occurring at night and throughout the night.

    - Soundproof doors are necessary to mitigate noise disruption, allowing [XTHS’] siblings to sleep and study, thus improving their mental and emotional health. This will alleviate the severe level of burden of care for [XM], who in addition to parenting [XTHS], also has 2 other children to parent and care for. [92]

    [emphasis in original]

    [92] Joint Hearing Bundle, 942-943.

19. The impact of XTHS’ vocalisations are also noted in the report of IP who states:

    On the day of observations, the ground floor was dedicated to [XTHS] and his disability support staff. With this in mind, there is a staircase that leads to the middle level where there is a kitchen, living and dining rooms and an outside balcony, as well as a study. [XTHS’ ] siblings have bedrooms on this floor. Moreover, the parental bedroom is reportedly located on the next level.

    At the time of the home visit, [XTHS’] vocalisations had permeated throughout the house. Whilst [XTHS’] bedroom, living and kitchenette provide opportunities for activities and learning skills, [XTHS’] yelling and screaming is not nullified. [XTHS’] vocalisations, particularly, yelling and screaming, is high-pitched and repeated during the course of the observations.[93]

    [93] Ibid, 1065.

20. However, IP considered that the introduction of active overnight supports might mitigate overnight disturbance and was not able to form an opinion on whether a soundproof door was required at the time of his report.[94] The Applicant also relies on OT’s sensory processing report,[95] and letters of support provided by SP,[96] a former neighbour,[97] and XTHS’ sibling’s tutor.[98] A quote provided on 15 March 2024 indicated that installation of the soundproof door would cost around $11,000 at that time.[99] It is likely that the cost will have increased after this quote was provided.    

    [94] Ibid, 1097.

    [95] Ibid, 871-872.

    [96] Ibid, 924-925.

    [97] Ibid, 966.

    [98] Ibid, 895.

    [99] Ibid, 927.

21. The Agency makes the following contentions:

    71. The Respondent firstly submits that the request is excluded under item 1(e) of schedule 2 to the Transitional Rules, which excludes “standard home repairs, home improvements, standard renovations”. Item 1(j) of schedule 2 to the Transitional Rules also excludes “standard furniture, fixtures or fittings”.

    72. The use of the word “standard” in the Transitional Rules is important. The word was intended to differentiate between modifications that are disability specific modifications, and modifications that are of use in any household for Australians without a disability. The fact that the person requires the modification because of their disability does not change the characteristic of the proposed modification from being “standard”.

    73. It is submitted that the soundproof door falls within that category. It is not a disability specific modification, but is a type modification that is designed for any home that requires noise suppression between parts of the house.

    74. Further, the Respondent submits that the soundproof door modifications are not “supports that design, change or modify a participant’s home to help the participant live as independently as possible and to live safely at home” under item 22(a) of schedule 1 to the Transitional Rules. The sole purpose was to suppress the noise that the Applicant makes, for the benefit of the rest of the family. It is not addressing the Applicant’s need for safe or independent living.[100]

    [emphasis in original]

    [100] Respondent’s Closing Submissions, page 11.

22. The Agency also submits that the door does not represents value for money, as required by section 34(1)(c) of likely to be effective and beneficial as required by section 34(1)(d).[101]    

    [101] Joint Hearing Bundle, 51.

23. The Applicant submits that a soundproof door:

    (a)is a NDIS support under item 22(a) of schedule 1 of the Transitional Rules;

    (b)is an additional living cost incurred solely and directly as a result of XTHS’ disability support needs under rule 5.2(a) of the Support Rules;

    (c)is ancillary to another funded support under rule 5.2(b) of the Support Rules;

    (d)is not a standard household item;

    (e)is value for money and likely to be effective and beneficial; and

    (f)enables XTHS to live in the house with other people which directly addresses XTHS’ needs for safe and independent living.[102]

    [102] Ibid, 81-82; Applicant’s Closing Submissions, 8.

24. I do not accept the Agency’s submission that a soundproof door is a standard improvement or fitting and excluded by items 1(e) or 1(j) of schedule 2 of the Transitional Rules. In my view this is a broader interpretation of schedule 2 than is warranted. Section 4 of the Transitional Rules define ‘standard item’ as:

    standard item for a participant or prospective participant means an item that is not modified or adapted to address the functional impairments of the participant or prospective participant.

25. Soundproofing a door is modifying or adapting a door to address XTHS’ functional impairments. Further,  page 32 of the Explanatory Statement says:

    The lists in schedule 2 declare that the NDIS will not fund a number of ‘standard’ items. That is, the NDIS will not fund items that any person would buy for themselves, but may fund items that are specifically required or modified as a result of a person’s disability.

26. On an ordinary understanding, an $11,000 soundproof door is not a standard improvement or fitting that would be installed in any home. A soundproof door is not an item that any person would buy for themselves. It is specifically required as a result of XTHS’ disability.

1. I also do not accept the Agency’s submission that item 22(a) of schedule 1 of the Transitional Rules does not apply because a soundproof door benefits XTHS’ siblings. As indicated earlier, the items in schedule 1 are intended as inclusive lists in respect of which a narrow interpretation is not warranted. In my view, such a narrow interpretation would be inconsistent with the principle in section 5(f) that the best interests of the child are paramount and full consideration should be given to the need to ‘strengthen, preserve and promote positive relationships’ between the child and the child’s family. It would also be inconsistent with the principle in section 31(d) that funding for supports should, where possible, strengthen and build capacity of families to support participants who are children.

2. The risks of family breakdown and to the wellbeing of XM are well documented in the evidence before the Tribunal. Based on the expert and lived experience evidence, I am satisfied that installation of a soundproof door is value for money and likely to be effective and beneficial.

3. A soundproof door is necessary to address needs arising from an impairment for which XTHS meets the disability requirements.[103] This will assist XTHS to pursue his goal to improve his relationship with his family without family burnout.[104] The door assists XTHS’ social and economic participation through supporting him remaining in his family environment.[105] A soundproof door is value for money compared with the benefits achieved.[106] There are not comparable supports which achieve the same outcome at a substantially lower cost.[107] It is in XTHS’ best interests as a child to remain in his family’s care.[108] A soundproof door is likely to be beneficial for XTHS as recommended by appropriately qualified practitioners having regard to current good practice.[109] It is not reasonable to expect XTHS’ family to fund this soundproof door.[110] It is an NDIS support under item 22 of schedule 1 of the Transitional Rules.[111] This home modification is most appropriately funded under the NDIS, and not more appropriately funded by another system of support.[112] In reaching this conclusion, I have had regard to the need to ensure the financial sustainability of the scheme.[113]

   [103] NDIS Act ss 24, 34(1)(aa).

   [104] Ibid, s 34(1)(a).

   [105] Ibid, s 34(1)(b).

   [106] Ibid, s 34(1)(c).

   [107] Support Rules, Rule 3.1(a).

   [108] NDIS Act s 5(f).

   [109] Ibid, s 34(1)(d).

   [110] Ibid, s 34(1)(e).

   [111] Ibis, ss10 and 34(1)(f).

   [112] Miscellaneous Transitional Rules, s 7.

   [113] NDIS Act s 3(3)(b).

   Issue (g): family psychology

4. The Applicant seeks 52 hours of psychology supports per year for XTHS’ family members. The Applicant submits that this is not clinical mental health support which would be excluded under item 13(d) of schedule 2 of the Transitional Rules. Instead, the Applicant submits that this psychology support is to ‘train the family and provide them with the psychological tools/responses to deal with [XTHS’] disability, needs and behaviour, on a day-to-day basis’.[114] The Applicant submits that this training is a NDIS support under items 10, 12, 15 and 16 of schedule 1 of the Transitional Rules.[115]  

   [114] Joint Hearing Bundle, 79.

   [115] Applicant’s Closing Submissions, 9.

5. In addition to the exclusion in item 13 (d) of schedule 2, the Agency also submits that this support:

   (a)is ‘general family therapy’ which is excluded under item 14(c) of schedule 2 of the Transitional Rules;

   (b)is not evidence-based therapy to help the Applicant improve or maintain his functional capacity under item 34 of schedule 1 of the Transitional Rules;

   (c)is not training and capacity building for the Applicant’s informal supports delivered by the positive behaviour support practitioner under item 10(c) of schedule 1 to the Transitional Rules; and

   (d)is prevented by section 46(1) which requires that NDIS funding must only be spent on NDIS supports for the participant.[116]

   [116] Page 49 of the Joint Hearing Bundle.

6. The oral evidence by XMP indicated to me that XM is currently receiving clinical mental health support, that other family members would benefit from mental health support, and that the ten sessions for each family member available under the mental health system would not be sufficient. I consider that this support is ‘General family therapy’ which is excluded under item 14(c) of schedule 2 of the Transitional Rules.

7. I agree with the Applicant that training of family members can be a NDIS support under Items 10, 12, 15 and 16 of schedule 1 of the Transitional Rules. For this reason, if training for family members is included in XTHS’ plan, then section 46 would not operate to prevent spending on this training.

8. XTHS’ current plan includes 30 hours for a behaviour management plan including training in behaviour management strategies. I have some concern that this number of hours might not be sufficient. Given XTHS’ complex needs, the plan monitoring and progress reporting required, and the need to training support staff, it may be difficult to incorporate training for family members within the allocated hours. However, there is no evidence to indicate that these training hours are insufficient, or that family members could not attend training sessions along with XTHS’ support workers.

9. To the extent that training for behaviour management strategies is already included in XTHS’ plan, providing separate funding for training for family members would be a duplication of an existing support which is precluded by rule 5.1(c) of the Support Rules. Based on the current evidence I am not otherwise satisfied that behaviour management training hours need to be increased. Overall, I am not satisfied that 52 hours of psychology supports per year for XTHS’ family members is a reasonable and necessary support for inclusion is XTHS’ SPS.

   Issue (h): supports by XTHS’ brother

10. The Applicant requests that XTHS’ brother (XB) be approved to provide formal supports to XTHS during school holidays. This request was added in November 2025 and was less information was gathered in respect of this request. The Applicant relies on the opinion of XTHS’ physiotherapist,[117] speech pathologist,[118] and BSP. BSP states:

    Not only will [XB] be able to assist the current supports by taking [XTHS] out into the community aiding the physical struggles they experience particularly when [XTHS] is heightened, but will aid his mum’s severe anxieties around transportation/community access/male supports. Because of [XB], [XTHS] will be able to venture into new locations, extend his social interaction, develop the capacity to learn and develop in new environments and considerably enhance his overall wellbeing. The latter of which, the entire team continuously advocate for. It is also hoped that by expanding his daily routine, and community activities, this will also have a positive effect on his behaviours, and reduce the need for ongoing restrictive practices (where reasonably and necessary).[119]    

    [117] Joint Hearing Bundle, 971.

    [118] Joint Hearing Bundle, 980.

    [119] Joint Hearing Bundle, 969.

11. In her oral evidence, XM said that this request was based on the positive experience that XB and XTHS had on a recent holiday in which XB was able to lift XTHS to access a broader range on environments. XM said that female support workers were unable to do this and expressed her strong distrust for male support workers, partly due to negative media reporting about incidents of abuse.

12. The Agency arranged a supplementary report from IP with regards to this request. IP states that:

    Without minimising [XM's] concerns and worries, the employment of trained and skilled male disability support workers does occur and often are very effective agents of behaviour change particularly, with young males. The issue arising from these letters of support highlight the lack of trust in the employment of male support workers and the risk they pose to [XTHS]. Given the reported high turnover of staff and reported irresponsible and reckless behaviours demonstrated by previous disability support workers, [XM’s] response and worries are understandable. As such, the employment of a male support worker is timely and appropriate. However, there is no reported recruitment of male support workers, rather the reliance of [XB] to fulfil this role.[120]  

    … there are concerns about the role confusion related to a family member becoming a paid support worker. [XM] did not consider his brother would be aware of the difference. However, there needs to be clear differentiation between a sibling and a paid support worker. People with disability experience lifelong difficulties understanding attachment and boundaries within the various types of relationships. Taking into account the complexity and severity of [XTHS]'s disability, he is then required to identify when his brother is a paid support worker and when he is a sibling. This will be source of confusion for [XTHS]. It is noted that family members being paid support workers does occur in some instances, yet this is not common practice.[121]

    [120] IP Supplementary Report, 4-5.

    [121] IP Supplementary Report, 6.

13. The Agency submits that several reports relating to XB’s mental health[122] demonstrate that XB becoming a paid support presents a risk to XB wellbeing, contrary to section 34(1)(e) of the NDIS Act and rules 3.4(a)(iii), and 5.1(a) of the Support Rules. The Agency also submits that the opinion of IP does not support the conclusion that the criteria for family members to be paid as formal support is met. These criteria are set out in the Specific Types of Support Guideline which says:

    [122] Joint Hearing bundle, items D18, T19.4, T4, T19.48, D27, T19.34, D42.

    11.1 Does the NDIA fund family members to provide supports?

    Funding a family member to provide supports to a participant can be detrimental to family relationships.

    For example, the consequences of funding a family member to provide supports may include unintentionally creating an environment where a participant’s wishes in relation to their care arrangements or the delivery of their supports is diminished, or there is no or limited respite for the family worker taking on the role of support worker.

    Generally, the NDIA will only fund family members to provide supports in exceptional circumstances.

    For example, when:

    othere is a risk of harm or neglect to the participant;

    othere are religious or cultural reasons for funding a family member to provide supports; or

    othe participant has strong personal views, for example in relation to their privacy or dignity.

    The NDIA will consider the circumstances of each case, any wishes expressed by the participant and also take into account what is reasonable to expect others to provide.

    The NDIA will not fund a family member to provide personal care or community access supports unless all other options to identify a suitable provider of supports have been exhausted.[123]

    [123] NDIS Operational Guideline: Including Specific Types of Supports in Plans, 10 May 2023.

14. On balance, I do not consider that XB being paid as a formal support for XTHS is reasonable and necessary. I consider that there are risks to both XB and XTHS’ wellbeing in this approach and that this would be contrary to rules 3.4(a) and 5.1(a) of the Support Rules. I am also less clear that this approach is consistent with the principle in section 5(f) that the best interests of XTHS as a child are paramount and that XB being paid as a formal support will strengthen, preserve and promote positive relationships between XTHS and his family members. I accept that XM’s concerns regarding male support workers are strongly held. However, in applying the Specific Types of Support Guideline, I do not consider that this is a sufficient basis to consider that these are exceptional circumstances and that all other options to identify a suitable provider have been exhausted. 

    Issue (i): cleaning services

15. The Applicant seeks six hours per week for cleaning services associated with XTHS’ behaviours of concerns including faecal smearing and pica. The Applicant relies on the opinion of BSP who states:

    … all environments inside and outside the house needs to be kept clean and hygienic to accommodate with [XTHS’] needs, whilst mitigating devastating medical complications and safety risks. … for [XTHS], the need is more than just necessity, it is a contributing factor in keeping [XTHS] fully functioning and safe within his home environment, reducing restrictions to designated areas, as well as mitigating further behavioural challenges.[124]

    [124] Joint Hearing Bundle, 893.

16. The Agency submits that cleaning services do not fall within item 23 in schedule 1 of the Transitional Rules as cleaning is premised on this being a task that XTHS is not able to do themselves. Item 23 states that ‘Household tasks’ are NDIS supports unless otherwise provided and includes:

    Supports that provide assistance with essential household tasks that a participant is not able to do themselves because of their disability.

    This includes the following:

    (a) meal preparation and delivery;

    (b) house or yard maintenance;

    (c) cleaning and laundry.

17. I do not accept the Agency’s submission that item 23 only relates to tasks a participant cannot do themselves. As set out earlier, my view is that schedule 1 is to be read inclusively and that such a narrow interpretation is not warranted. I agree with the Applicant that some additional cleaning costs will be solely and directly related to XTHS’ disability support needs as allowed by rule 5.2(a) of the Support Rules.

18. The Agency also submits that there is insufficient evidence to separate out what is XTHS’ cleaning support needs from those of his family unit.

19. I note that, at least in part, the addition of 2:1 supports was intended to assist with cleaning duties. In recommending 2:1 supports (which have since been included in XTHS’ SPS) BPS states:   

    Assisted aid with maintaining [XTHS’] environment inclusive of basic cleaning duties within the remit of a Support Worker role reducing the aid of external domestic help.[125]

    [125] Ibid, 846.

20. Also, it is positive to note that BPS reports only one incident of faecal smearing during the period August 2024 to January 2025.[126] I was not able to identify any reports of self-harm relating to XTHS’ pica behaviours in BPS report.  

    [126] Page 41 of the Further Supplementary Joint Hearing Bundle.

21. The Applicant also relies on the opinion of SP and the lived experience of XM. In her oral evidence SP explained that the 2:1 support workers do conduct cleaning tasks but recommended deep cleaning (with steam and chemical sanitisation) once per week. XM also provided oral evidence that the family paid private cleaners for six to eight hours of cleaning per week. XM said that these six to eight hours were for cleaning the whole house and estimated that cleaning of the areas mostly used by XTHS took around three hours per week.

22. On balance, I am satisfied that an additional three hours of deep cleaning of the areas mainly used by XTHS once per week is reasonable and necessary. I am not satisfied that the evidence indicates that the six hours per week sought by the Applicant is required. Deep cleaning is necessary to address needs arising for an impairment for which XTHS meets the disability requirements.[127] This will assist XTHS to pursue his goals of living in a safe environment and reducing family burnout.[128] Deep cleaning assists XTHS’ social and economic participation through supporting him to live with his family.[129] It is in XTHS’ best interests as a child to remain in his family’s care.[130] This is value-for-money compared with the benefits achieved.[131] There are not comparable supports which achieve the same outcome at a substantially lower cost.[132] Deep cleaning is likely to be beneficial for XTHS and is recommended by appropriately qualified practitioners having regard to current good practice.[133] It is not reasonable to expect XTHS’ family to fund this deep cleaning, however it is reasonable for his family to provide or fund cleaning to other areas of the home.[134] Cleaning is an NDIS support under item 23 of schedule 1 of the Transitional Rules.[135] Deep cleaning is most appropriately funded under the NDIS, and not more appropriately funded by another system of support.[136] In reaching this conclusion I have had regard to the need to ensure the financial sustainability of the scheme.[137]

    [127] NDIS Act ss24, 34(1)(aa).

    [128] Ibid s 34(1)(a).

    [129] Ibid s 34(1)(b).

    [130] Ibid s 5(f).

    [131] Ibid, s 34(1)(c).

    [132] Support Rules r 3.1(a).

    [133] NDIS Act s 34(1)(d).

    [134] Ibid, s 34(1)(e).

    [135] Ibid, ss 10, 34(1)(f).

    [136] Miscellaneous Transitional Rules, s 7.

    [137] NDIS Act s 3(3)(b).

    Issue (j): gardening services

23. The Applicant seeks three hours per week for gardening service to keep the area used mainly by XTHS clearer and tidier to reduce to risk of harm from spiders and snakes. As with cleaning, the Applicant relies on the opinion of BSP for this request.[138] The Applicant also relies on a 2023 occupational therapy report that notes that adolescents without a disability would  frequently continue to household tasks such as mowing.[139] In her statement of lived experience and oral evidence, XM explained how much time XTHS spent outside, mainly in a one-acre front section of their three-acre property and the risks to XTHS is picking up spiders or snakes.  SP’s oral evidence was that support workers had reported several snakes having to be removed from the area used by XTHS. 

    [138] Joint Hearing Bundle, 893.

    [139] Ibid, 194.

24. The parties’ submissions are the same as in relation to cleaning services above. Having considered the evidence and submissions I have concluded that one hour per week of gardening is reasonable and necessary. I do not consider that the three hours requested is reasonable and necessary. This is primarily because I consider that it is reasonable to expect XTHS’ family to provide most of the gardening services required. I am not satisfied that XTHS requires an acre (around 4,000 square metres) of highly maintained outdoor space for his use. I consider that one hour per week should be sufficient to maintain a reasonable area for XTHS’ use to this higher standard. With 2:1 supports in place, the risk of XTHS’ wandering into unkept areas should be minimised. If XTHS’ family wish to maintain a larger area to this higher standard, that is a support that is reasonable for the family to provide.  

25. Gardening for pest management is necessary to address needs arising for an impairment for which XTHS meets the disability requirements.[140] This will assist XTHS to pursue his goals of living in a safe environment.[141] Gardening assists XTHS’ social and economic participation through enabling him to engage in outdoor activities.[142] It is in XTHS’ best interests as a child to have a safe environment.[143] This is value for money compared with the benefits achieved.[144] There are not comparable supports which achieve the same outcome at a substantially lower cost.[145] Gardening for pest management is likely to be beneficial for XTHS as recommended by appropriately qualified practitioners having regard to current good practice.[146] It is not reasonable to expect XTHS’ family to fund this level of gardening, however it is reasonable for his family to provide gardening in other areas of the property.[147] Gardening is an NDIS support under item 23 of schedule 1 of the Transitional Rules.[148] Gardening for pest management is most appropriately funded under the NDIS, and not more appropriately funded by another system of support.[149] In reaching this conclusion I have had regard to the need to ensure the financial sustainability of the scheme.[150]

    [140] NDIS Act ss 24, 34(1)(aa).

    [141] Ibid, s 34(1)(a).

    [142] Ibid, s 34(1)(b).

    [143] Ibid, s 5(f).

    [144] Ibid, s 34(1)(c).

    [145] Support Rules, Rule 3.1(a).

    [146] NDIS Act s 34(1)(d).

    [147] Ibid, s 34(1)(e).

    [148] Ibid, ss 10 and 34(1)(f).

    [149] Miscellaneous Transitional Rules, s 7.

    [150] NDIS Act s 3(3)(b).

    Issue (k): washing machine maintenance and repairs

1. The Applicant seeks funding for maintenance and repairs to a second washing machine and dryer that the family uses exclusively for XTHS due to his continence and other needs. It is not necessary to go into the details of the evidence on this issues further. I accept that there is a much higher needs for laundry washing and drying which are directly relatedly to XTHS’ disability. However, I accept the Agency’s submission that this support is now excluded under item 1(i) of schedule 2 to the Transitional Rules, which states that the following are not NDIS supports in the category ‘Day-to-day living costs — accommodation and household’:

   (i) standard household (including garden) items, appliances, tools and products;

2. I accept the Applicant’s submissions that it is not ordinary for households to run a second washing machine and dryer. However, I do not consider that this removes the second washing machine and dryer from being a standard household appliance. In my view this support does fall within the definition of  ‘standard item’  in section 4 of the of the Transitional Rules outlined above. It also falls with the meaning of ‘Standard commercially available household items’ in section 7 of the Transitional Rules. I agree with the Agency that maintenance and repairs to an excluded item would fall within the exclusion. This is not an expansion of the exhaustive list in schedule 2, but is a direct consequence of the item being excluded. 

3. I might have reached a different conclusion prior to the commencement of the Back on Track Amendment Act and Transitional Rules. However, a different conclusion is no longer open to the Tribunal on some of these matters. With the introduction of the Transitional Rules, the pathway for participants to seek funding for (some) excluded supports is now to seek a replacement support determination by the Agency’s CEO. The decision of the CEO to make or refuse a replacement support determination is not a decision which is reviewable by the Tribunal.

   Issue (l): consumables

4. My conclusion with regards to the washing machine maintenance and repairs is  largely the same for the consumables requested. The evidence is generally supportive of the volume and type of consumables requested as being as a direct result of XTHS’ impairments. However, most are now excluded by schedule 2 of Transitional Rules. A request for a replacement support determination may be able to be made with respect to some of the consumable requested. Any such requests will be a matter for Agency’s CEO to consider.

5. I say ‘most are now excluded’ as there are some differences depending on the specific consumable. With regards to continence consumables, I agree with the Agency’s concession that the Applicant’s budget should be increased from $12,000 to $13,774 to cover additional continence items. I also agree that the Applicant’s request for $22,594 is not reasonable and necessary as a significant number of these items relate to personal protective equipment for support workers and this is the responsibility of the service provided.

6. The soft and durable bedding and towels are standard household products. They are of a higher quality due to XTHS’ sensory needs and the frequency of washing required. However, I consider that these products still fall within the definition of  ‘standard item’  in section 4 and are ‘standard commercially available household items’ for the purpose of section 7 of the Transitional Rules. These items are now excluded by item 1(i) of schedule 2 to the Transitional Rules.

7. The cleaning and laundry products for sanitisation are now excluded by item 3(a) of Schedule 2 to the Transitional Rules. The sensitive body wash and shampoos are also excluded under item 3(a) of schedule 2. To the extent that the sensitive body wash and shampoos might be not considered a ‘grocery’ item under item 3(a), they would also be excluded as a non-prescription pharmaceutical under item 12(d). Similarly, XTHS’ sturdy shoes are excluded under item 5(c) of schedule 2 as being standard footwear.

8. Prescription glasses are specifically excluded under item 12(h) of schedule 2 to the Transitional Rules. I have particularly sympathy for the Applicant regarding this support request. These prescription glasses are expensive items, around $600 each, and the evidence supports that several replacements are required each year because XTHS frequently destroys his glasses. It is not clear to me that a replacement support determination can be sought in respect of prescription glasses given the limited item that are specific within section 7 of Transitional Rules. This seemingly leaves the Applicant to bear a high cost for a disability related need without any exception being able to be considered for his unusual circumstances. The only recourse that appears to be available for the Applicant’s family is to seek a change to the rules via their parliamentary representatives.

   Other issues

9. The Applicant also seeks changes to the management and duration of XTHS’ plan and reimbursement for prior services.

   Plan management

10. The Applicant requests that the behaviour support practitioner funding be changed from Agency managed to plan managed. When funding for a support is Agency managed, the service provider sends their invoices directly to the Agency who decides whether to approve payment. When funding for a support is ‘plan managed’ the service provider sends their invoices to a registered plan management provider (approved and funded by the Agency) who is authorised to make payments from the Applicant’s plan for a service which is in accordance with the plan. The other supports in the Applicant’s SPS are plan managed. Subject to some specific exceptions, section 43 of the NDIS Act allows participants to make a plan management request and requires the SPS to give effect to this request. In oral submissions, the Agency conceded that there was no specific provision, rule or guideline that requires funding for a behaviour support practitioner to be Agency managed. As the Applicant has requested plan management of the behaviour support practitioner funding in their SPS, it is appropriate that the SPS give effect to this request.

    Plan duration

11. The Applicant seeks a reassessment date three years after commencement of the SPS, with funding allocated in 12-month periods. In summary, the Applicant submits that:

    (a)a reassessment in 12-months is stressful, time-consuming, wasteful, unnecessary; uncertain, and contributes to care burnout;

    (b)the risk of overspending is reduced by funding being allocated in 12-month periods, and assistance provided by the plan manager and support coordinator; and

    (c)a shorter period is inconsistent with the principles in section 31 that planning should be individualised; directed by the participant; consider and respect of the role of family, strengthen and build capacity of families; and facilitate tailored and flexible responses to the individual goals and needs of the participant.

12. The Agency submits that a 12-month reassessment date remains appropriate. The Agency submits that this is appropriate because:

    (a)the Applicant’s comprehensive behaviour support plan must be reviewed every 12 months under the Restrictive Practices and Behaviour Support Rules;[151]

    (b)the Applicant’s functioning in not stable and there have been improvements in his functioning;

    (c)this provides the opportunity to review the Applicant’s progress against his goals, and in response to any changes to the Applicant’s disability support needs; and

    (d)the Applicant’s SPS included funding in excess of $1.2 million per year.

    [151] Referring to Rule 22 of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018.

13. On balance, I agree with the Applicant that a three-year reassessment date is appropriate. The information before the Tribunal about the severe carer burnout experienced by XM and the risk of family breakdown or relinquishment of XTHS’s care are factors which support a longer duration. There are appropriate safeguards in place to ensure the XTHS’ support needs, progress and restrictive practices are regularly reviewed, and that funds are spent appropriately. One of these safeguards is that the Restrictive Practices and Behaviour Support Rules require the comprehensive behaviour support plan to be reviewed at least every 12 months, or if earlier there is a change in circumstances. In reaching this conclusion I am also guided by the principles set out in section 31 as submitted by the Applicant and the general principle in section 4(4) that families should have certainty that people with a disability will receive the support they need over their lifetime.

    Reimbursement

14. The Applicant seeks approximately $40,000 in payments made to service providers in August 2022. It is not dispute that these services were provided during a three-month plan from June to September 2022. This plan predates the current SPS under review which commenced on 20 April 2023. From the Applicant’s oral and written closing submissions it is not entirely clear to me whether this request is still pressed. However, for completeness I confirm that my view remains the same as expressed Darmanin in which I concluded that it is the plan which is in effect when the request for a variation, reassessment or review is made which ‘provides the container in which the funding of the requested supports can be approved’.[152] The invoices for services in August 2022 are earlier than the start date of the 20 April 2023 SPS that is being considered by the Tribunal. In this matter, the Tribunal does not have authority to make a finding that a support was reasonable and necessary prior to  20 April 2023. There is therefore no basis for the Tribunal to consider whether reimbursement for expenditure on these supports would be appropriate.   

    [152] Darmanin and National Disability Insurance Agency [2024] AATA 1202, [34].

    DECISION

15. The decision of the Agency under review is set aside and remitted for reconsideration with the direction that the Applicant’s statement of participant supports includes sufficient funding for:

    (a)an additional six 1:1, weekday, daytime, high intensity support worker hours for irregular support for 10 days per year;

    (b)an additional six 2:1, weekday, daytime, high intensity support worker hours for irregular support for 26 days per year;

    (c)an additional six hours of weekday, daytime, high intensity support worker hours per month for support workers to attend Applicant-specific training with the Applicant’s positive behaviour support practitioner or the Applicant’s other allied health practitioners;

    (d)an additional 22 days/nights of short-term accommodation for respite per year, 11 of which are to be funded as the weekend rate;

    (e)school bus transport to and from school, on each school day, other than for 12 days per year that the Applicant expects to attend appointments;

    (f)subject to an updated quote, funding for installation of a soundproof door separating the Applicant bedroom for those of his siblings;

    (g)three hours per week for deep cleaning of the areas of the Applicant’s house mainly used by the Applicant; and

    (h)one hour per week for gardening for pest management.

    The statement of participant supports is to include a reassessment date of 36 months after implementation of the new plan following this decision. The management of the funding for a positive behaviour support practitioner is to be changed from Agency managed to plan managed. The remaining aspects of the statement of participant supports remain unchanged. 

Dates of hearing:	18, 19, 20 and 21 March 2025
Date final submissions received:	7 April 2025
Counsel for the Applicant:	Mr M O'Connor, Owen Dixon Chambers East
Counsel for the Respondent	Mr P Nolan, Darrow Chambers
Solicitors for the Respondent:	Ms E Thomas, Maddocks Lawyers