YCTK and Chief Executive Officer, National Disability Insurance Agency (NDIS)
[2025] ARTA 536
•7 May 2025
YCTK and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2025] ARTA 536 (7 May 2025)
Applicant:YCTK
Respondent: Chief Executive Officer, National Disability Insurance Agency
Tribunal Number: 2024/3679
Tribunal: Senior Member A. Clues
Place: Hobart
Date:7 May 2025
Decision:
1) The Tribunal sets aside the decision under review pursuant to section 105(c) of the Administrative Review Tribunal Act 2024 (Cth) and remits it to the respondent for reconsideration in accordance with the order that the respondent must facilitate the approval of a new statement of participant supports for the applicant containing the following provisions:
a)an additional 1.5 hours per week funding for social, economic and community participation.
b)Removal of the condition in the existing statement of participant supports requiring the applicant’s carer to be present when the support worker is being accessed.
2) All other provisions in the existing statement of participant supports remain unchanged.
Senior Member A. Clues
Catchwords
National Disabilty Insurance Scheme – rested supports – transport funding – reimbursement for dental procedures – swimming lessons – whether requested supports are NDIS supports – Getting the NDIS Back on Track amendments – supports that are generally bot NDIS supports – meaning of generally
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No 1) Act 2024 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Cases
FSWN and National Disability Insurance Agency [2025] ARTA 114
Johnstone and National Disability Insurance Agency (NDIS) [2025] ARTA 106
NPMQ and Chief Executive Officer of the National Disability Insurance Agency [2024] ARTA 96
WWWX and National Disability Insurance Agency [2024] ARTA 285
TRCH and National Disability Insurance Agency [2024] AATA 2918
XXWC and National Disability Insurance Agency [2020] AATA 923
Secondary Materials
National Disability Insurance Scheme (Supports for Participants Rules) 2013
Statement of Reasons
Background
The applicant is an eight-year-old female who has been a participant in the National Disability Insurance Scheme since 5 March 2021. Her eligibility arises from impairments relating to autism spectrum disorder and moderate intellectual disability. She resides with her grandmother who is her primary carer. The applicant’s Statement of Participant Supports (SOPS), approved on 28 November 2023 under section 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (the Principal Act), outlines supports for the period 28 November 2023 to 27 November 2024. On 24 May 2024, a delegate of the Chief Executive Officer of the National Disability Insurance Agency (NDIA), confirmed the original decision to approve the SOPS. On 3 June 2024, the applicant lodged an application for review of that decision with the Administrative Appeals Tribunal (AAT).[1]
[1] Joint Tender Bundle pp 19-20 (‘JTB’).
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 (Cth), 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
The hearing proceeded by Microsoft Teams video on 26 March 2025. The applicant was represented by her grandmother and the respondent was represented by counsel, Mr T Noonan. The case proceeded by way of submissions and no witnesses were called. At the hearing the Tribunal accepted into evidence by consent the Joint Tender Bundle (JTB) pages 1 – 611.
Issues
The parties agree that that the issues to be determined by the Tribunal are whether the following supports are NDIS supports and if they are whether they are reasonable and necessary supports for the purposes of subsection 34(1) of the Principal Act:
a)transport to school and medical appointments (unspecified hours);
b)reimbursement for costs associated with a dental procedure ($7,380); and
c)swimming lessons (40 lessons at 30 minutes per session).
The respondent concedes that an additional 1.5 hours per week funding for social, economic and community participation is reasonable and necessary and is to be included in the applicant’s SOPS. Further, the respondent agrees to remove the condition in the applicant’s SOPS requiring the applicant’s carer to be present when her support worker is being accessed. The parties agree that no other supports are being sought in this application for review.
Legislative Framework
In the decision of FSWN and National Disability Insurance Agency,[2] Senior Member French sets out the legislation that is applicable in this application for review and the two-stage structure of the enquiry that the Tribunal is required to undertake in this review. At paragraphs [31] – [38] he says:
[2] [2025] ARTA 114 (‘FSWN’).
The National Disability Insurance Scheme (Getting the NDIS Back on Track No 1) Act 2024 (Cth) [the Amending Act]passed through Parliament on 22 August 2024, received Royal Assent on 6 September 2024, and commenced on 3 October 2024. Schedule 1 of the Amending Act contains the main amendments to the Principal Act, including relevantly to this case, the introduction of a new s 10 (definition of ‘NDIS support’) and an amendment to s 34 (reasonable and necessary supports) to specify additional criteria that must be satisfied before a support can be approved for inclusion in a participant’s SOPS under s 33(5).
Subitems 129(1) and (2) of Schedule 1 of the Amending Act provide, relevantly, that s 33 and 34 as in force on and after 3 October 2024 apply to a SOPS approved or varied after that date, irrespective of whether a participant’s plan came into effect before, or on, or after commencement. The implication of this for the Applicant’s case is that because the Tribunal’s decision in this review is being made after 3 October 2024 the requirements introduced by the Amending Act must be satisfied, even though the decision under review was made before 3 October 2024.
The structure of s 10 of the amended Principal Act requires close study. Subsection 10(1) provides, in short summary, that a support will be a ‘NDIS support’ if the support is so declared by the NDIS rules made for the purposes of section 10 either in respect of all participants or prospective participants or a specified class of participants or prospective participants. Subsections 10(2) and (3) specify certain preconditions as to which the Minister must be satisfied before the rules may declare a support a NDIS Support for the purposes of s 10(1). These are not presently relevant.
Subsection 10(4) provides that the NDIS rules may declare that a support is ‘not a NDIS support’ either in respect of all participants or prospective participants or a specified class of participants or prospective participants. Subsection 10(5) provides that before a rule can be made for the purposes of s 10(4) the Minister must be satisfied that the support is not appropriately funded or provided through the NDIS either for all participants or prospective participants or for a specified class of participants. Subsection 10(9) provides that certain services and substances are not NDIS Supports. It is not presently relevant.
Subsections 10(6) to (8) provide:
(6) The CEO may determine, in writing, that a support is taken to not be declared under subsection (4) in relation to a participant if:
(a) the support is prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and
(b) the support would, apart from subsection (4), be a NDIS support for the participant; and
(c) the participant applies to the CEO in accordance with subsection (7) for the determination; and
(d) the CEO is satisfied that:
(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 of 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.
...
(7) An application under paragraph 6(c) must:
(a) be in the form (if any) approved by the CEO; and
(b) include any information, and be accompanied by any documents, required by the CEO; and
(c) be made in accordance with any other requirements specified in the National Disability Insurance Scheme rules for the purposes of this paragraph, which may include requirements as to the circumstances in which an application may, or may not, be made.
(8) The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of subsection (6), including by prescribing requirements with which the CEO must comply, methods or criteria that the CEO is to apply, or matters that the CEO may, must or must not take into account in deciding whether to make a determination under that subsection.
Subitem 138 of Schedule 1 of the Amending Act provides that the Minister may, by legislative instrument, make rules prescribing matters of a transitional nature relating to the amendments and repeals to the Principal Act made by that Schedule. Pursuant to that power the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth) were made (the Transitional Rules). The Transitional Rules also came into force on 3 October 2024 and must be applied in the review of a decision concerning a SOPS completed on or after that date, even if that decision predates the entry into force of the Transitional Rules.
To put it simply, the Transitional Rules designate, by operation of Rule 5 and by reference to Schedules 1 and 2 of those Rules, those Supports that are “NDIS Supports” and those that are “generally not NDIS Supports” for the purpose of s 10 of the Principal Act (as amended by the Amending Act).
In FSWN Senior Member French also stated at paragraphs [43] – [44]:
Having regard to the provisions of the Principal Act as amended, the Transitional Rules, and the Supports Rules, the structure of the enquiry involved in this review involves two stages and the following steps:
Stage 1 Ascertain if the requested support is a “NDIS” Support as defined. This inquiry is focused on the support, not the participant.
Step 1: Determine if the requested support is of a character that falls within the scope of a category of support specified in column 1 of the Table to Schedule 2 of the Transitional Rules by reference to the description of supports that fall within the scope of that category contained in column 2 of the Table.
If the answer to that question is “yes”, then stage 1 is complete. The requested support is not a NDIS Support and cannot be approved for inclusion in a SOPS because of s 34(1)(f) (subject to a replacement support determination being made, as to which see following).
If the answer to that question is “no”, then proceed to step 2 of stage 1:
Step 2: Determine if the requested support is of a character capable of falling within the scope of a category of support specified in column 1 of the Table to Schedule 1 of the Transitional Rules by reference to the description of supports that can fall within the scope of that category contained in column 2 of that Table.
If the answer to that question is “no”, then the requested support will not be a NDIS Support and cannot be approved for including in a SOPS because of s 34(1)(f).
If the answer to that question is “yes”, then the requested support will be a NDIS Support that is capable of being approved for inclusion in a SOPS by operation of s 34(1)(f), and stage 2 of the enquiry is reached.
Stage 2: Ascertain if the requested support satisfies each of the other criteria specified in s 34(1)(aa) to (e) and the associated Supports Rules. There is some overlap of the stage 1 and 2 enquiries. However, in my opinion stage 2 is primarily a participant focused enquiry. That is, it seeks to establish the benefit of the support to the participant. To the extent that stage 2 also requires examination of the efficacy of the support per se it adds nothing to the outcome of the stage 1 enquiry in my opinion.
The question of whether a requested support is, or is not, a NDIS support is a mixed question of fact and law. The issue of fact to be determined is whether the requested support falls within a category of items specified in column 1 of the Tables to Schedules 1 and 2 of the Transitional Rules. If it does, it will either be, or not be, a NDIS support by operation of law.
Section 34(1) of the Principal Act, as amended, provides:
Reasonable and necessary supports
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(aa) the support is necessary to address the needs of the participant arising from an impairment in relation to which the participant meets the disability requirement (see section 24) or the early intervention requirement (see section 25);
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, 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 both to the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is a NDIS support for the participant.
CONSIDERATION
As stated, the first step is for the Tribunal to consider and determine is whether the three supports requested by the applicant are NDIS Supports, as defined, that are capable of being incorporated into her SOPS.
Transport to school and medical appointments (unspecified hours)
10. The applicant’s grandmother and carer gave evidence that the applicant resides with her in Kyneton, which is halfway between Melbourne and Bendigo. The applicant attends a specialist school in Bendigo five days per week from 9 am until 3 pm. The applicant catches a bus home from school. The same service could take the applicant to school, but she would have to leave home at 7:10 am. Her grandmother said that she cannot get the applicant ready in time to catch that bus. Her evidence was that in order for her to achieve that she would have to get up at 4:30 am to get herself ready. She would then need to get the applicant up at 5 am so that she could encourage her to shower, get dressed and have breakfast in time to catch the bus by 7:10 am. She said she has to allow time to take into account the applicant’s balking and occasional meltdowns when getting ready for school. She said it is important for the applicant to be calm and happy when she arrives at school. If the applicant’s grandmother drives her to school, they leave at 8am. It takes her approximately 40 - 60 minutes to drive from Kyneton to Bendigo, depending upon the traffic. It takes about the same amount of time to do the return trip.
11. The applicant attends speech pathology and occupational therapy on a fortnightly basis in Kyneton. The applicant’s grandmother drives her to and from those appointments. This drive takes approximately 10 minutes each way.
12. The applicant was attending a paediatrician every three months. She currently attends a paediatrician based in Melbourne every six months and the plan is for this to reduce to every twelve months. The paediatrician is based in Moonee Ponds/Ascot Vale The applicant’s grandmother drives her to these appointments. It currently takes slightly less than an hour to drive from Kyneton to these appointments depending upon the traffic and the time of day. It takes about the same amount of time to do the return trip.
13. The applicant attends a specialist dentist. This dentist provides a specialist service for autistic children called ‘quiet Tuesday’, where they are the only child there and steps are taken to ensure the applicant feels safe whilst at the dentist including not requiring them to sit in a dentist chair, if they do not want to. This dentist is based in Essendon. The applicant’s grandmother drives her to these appointments. It currently takes slightly less than an hour to drive from Kyneton to these appointments depending upon the traffic and the time of day. It takes about the same amount of time to do the return trip.
14. In the applicant’s Statement of Facts, Issues and Contentions (SOFIC), the following contentions are made in relation to transport funding:
The respondent relies on Table 2, Item 6 of the Transitional Rules, which states that transport for children is “generally not NDIS supports”. However:
·The term “generally” permits exceptions, and the Tribunal retains discretion to consider the Applicant’s specific circumstances.
·The Participant’s primary disability, autism, and intellectual disability make public transport unsafe and inaccessible due to sensory sensitivities and a lack of understanding of danger.
Section 34(1)(e) of the Act and Rule 3.4(a)(i) of the Support Rules require the Tribunal to consider the sustainability of informal care arrangements. The Applicant’s grandmother already provides significant care, and the additional burden of daily transport jeopardises her ability to continue as an effective carer.
Transport funding represents value for money as it ensures the participants access to education and therapy, preventing the need for additional NDIS-funded supports such as respite care or behavioural interventions that may arise from disruptions to her routine or development.
Transport funding aligns with the objectives of the Act, including supporting the Participant’s independence and social inclusion (ss 3(1)(c) and 3(1)(e)).[3]
[3] JTB 21.
15. In the respondent’s SOFIC, the following submissions are made in relation to the applicant’s request for transport funding:
Section 34(1)(f) requires that the Tribunal must be satisfied “the support is a NDIS
Support for the participant” in order for the support to be reasonable and necessary. A ‘NDIS Support’ is defined in s 10(1) as a support that has been declared by the Minister to be a NDIS Support. The Minister may also declare that certain supports are not NDIS supports (s 10(4)).
The Minister has made rules for the purposes of s 10, being the Transitional Rules, for the purpose of declaring what is and what is not a NDIS Support. Under the relevant provisions of the Act and the Transitional Rules:
I.The Transitional Rules provide a table setting out supports that are
generally, NDIS supports, unless otherwise provided, in Table 1;
II.The Transitional Rules provide a table setting out supports that are not NDIS supports, in Table 2;
III.Section 10(6) of the Act and r 7 of the Transitional Rules provides that the CEO of the Agency has the power to make an exception for a support that is excluded under Table 2, if the participant makes a request for consideration and various criteria are met. This process is called a ‘replacement support determination’ in r 7 of the Transitional Rules.
Table 2, item 6 of the Transitional Rules states that “day-to-day living costs – travel
and transport”, including “transport for children as part of their reasonable care and
support provided by families or carers” are generally not NDIS supports.
The Respondent is unaware of any evidence that suggests the Applicant’s request
for transport is such that it fall outside the scope of the Transitional Rules. It can
reasonably be expected that a carer of a 7-year-old child will transport them to and
from school and medical and allied health appointments.
Despite the wording in the Transitional Rules, the term “generally are not NDIS
Supports” does not operate to confer a discretion on a decision maker to treat the
requirements of Schedules 1 and 2 as only general rules or guidance. Schedule 2 of
the Transitional Rules, read with s 10(6) and (7) of the Act as amended, makes clear
that the qualification that supports will ‘generally’ not be a NDIS Support refers to the
possibility of a replacement support determination in respect of a particular
participant. Unless a replacement support determination has been made by the CEO,
a support referred to in Schedule 2 is not a NDIS support in relation to the participant,
and as such does not satisfy s 34(1)(f) of the Act.
No such determination has been made by the CEO in the current matter, such that
the Tribunal must apply Schedule 2 of the Transitional Rules according to its terms.
Further to the above submissions, and pursuant to s 34(1)(e) of the Act and r 3.4(a)(i)
of the Supports for Participants Rules, the type of transport sought also falls within a
category of support that is reasonable to expect informal supports to provide to
children, such that the Tribunal should conclude that the support is not a reasonable
and necessary support.
Pursuant to rr 5.1(b) and 5.2(a) of the Supports for Participants Rules, the
Respondent contends the requested support is not related to the Applicant’s disability
support needs. Rather, the requested supports relate to the Applicant’s age and the
associated fact that the Applicant’s grandmother is required to provide a substantial amount of care and support for the Applicant (including meeting the costs of travel).[4]
[4] Ibid 4 – 5.
16. Taking into account the evidence, the submissions made and the applicable law, stage one of this consideration requires the Tribunal to ascertain whether the transport funding requested by the applicant is a NDIS support as defined. The Tribunal finds that transport funding does fall within the scope of the Table to Schedule 2 of the Transitional Rules, Column 1 - Item 6, Category (day-to-day living costs – travel and transport), Column 2 -Supports (g) (transport for children as part of their reasonable care and support provided by families or carers). The Tribunal accepts that the applicant’s grandmother does provide significant care to the applicant but there is no evidence to support the contention that providing daily transport jeopardises her ability to continue as an effective carer. The evidence is that the applicant’s grandmother is a very effective carer. She retired about 5.5 years ago to become the applicant’s full-time carer.[5] The Tribunal accepts that she sometimes gets stressed and overtired from looking after the applicant. However, she gets some respite whilst the applicant is at school five days a week and the respondent has agreed in the new SOPS she will not need to be present when the applicant is with a support worker accessing the community. This will provide her with further respite.
[5] Ibid 67.
17. The Tribunal finds that transporting the applicant to school and to the paediatrician, the specialist dentist, the speech therapist and the occupational therapist are part of the reasonable care and support that is expected to be provided to an eight-year-old child by families or carers, in this case the applicant’s grandmother.
18. As a result of the Tribunal finding that the transport funding requested is not a NDIS support, it cannot be approved for inclusion in the applicant’s SOPS because of section 34(1)(f) of the Principal Act, subject to a replacement support determination being made.
19. The ‘replacement support determination’ provisions contained in Part 3, section 7 of the Transitional Rules, are not relevant to this case for the same reasons set out in FSWN. At [55] Senior Member French stated that the discretion related to a replacement support determination and that had no bearing on the outcome of the case because:
The applicant has not made an application to the CEO, as she must, for a replacement support determination to be made in relation to her requested supports that are by operation of the Table to Schedule 2 of the Transitional Rules not NDIS Supports,
The CEO could not make a replacement support determination in relation to those requested supports in any event because they do not appear in column 1 of the replacement support determination in Part 3, s 7 of the Transitional Rules,
A decision made pursuant to s 10(6) determining a replacement support for a participant is distinct from a decision made pursuant to s 33(2) approving a statement of participant supports. The NDIS Act does not designate a determination made pursuant to s 10(6) a reviewable decision,
The Tribunal’s jurisdiction is not at large. In conducting an independent review of an internal review decision concerning an approval of a SOPS, the Tribunal’s jurisdiction is limited to the scope of the internal reviewer’s powers under s 100 of the NDIS Act, and the scope of the power under s 33(2). Neither s 100 or s 33(2) encompass a power to make a replacement support determination. The Tribunal thus has no power to entertain an application for a replacement support determination in a review of a decision to approve a SOPS.
20. For these reasons, the replacement support provisions are not relevant to this application.
21. Further the applicant submits that Schedule 2 of the Transitional Rules refers to ‘Supports that are generally not NDIS supports’ (emphasis added) and that the term “generally” permits exceptions. Therefore, the Tribunal retains a discretion to consider the applicant’s specific circumstances.
22. As stated in FSWN, if the Tribunal determines that a requested support is of a character that falls within the scope of a category specified in column 1 of the Table to Schedule 2 of the Transitional Rules, by reference to the description of supports that fall within the scope of that category contained in column 2 of the Table, then the requested support is not a NDIS support and cannot be approved for inclusion in the applicant’s SOPS. This part of the determination is focused on the support and not the individual participant.[6]
[6] FSWN at [43].
23. This issue was considered in the case of Johnstone and National Disability Insurance Agency (NDIS).[7] In that case General Member J Toohey said at [27] – [31]:
[7] [2025] ARTA 106.
At first glance, the headings in Schedule 2 which say ‘generally are not NDIS supports’ do seem to imply that there could be circumstances in which supports that are not generally NDIS supports could however be a support for a specific participant. However, the meaning of ‘generally’ in this context is informed by the rule-making provision in section 10(4) which states:
The National Disability Insurance Scheme rules may declare that a support is not an NDIS support for:
(a) participants or prospective participants generally; or
(b) a class of participants or prospective participants.
When read together with section 10(4), it is clear to that the term ‘generally’ is used in the sense of applying to all participants as compared to a class of participants, rather than in the sense of applying in ‘most circumstances’ or similar. Rule 5(2) of the Transitional Rules underscores this interpretation, stating that:
Supports that generally are not NDIS supports
(2) For the purposes of subsection 10(4) of the NDIS Act, a support covered by column 2 of an item in the table in clause 1 of Schedule 2 to this instrument is not a NDIS support for any participant (subject to subsection 10(6) of the NDIS Act) or prospective participant. [emphasis added]
24. General Member Toohey formed the view that the Transitional Rules applyin a way which means that, if a requested support is listed in Schedule 2 as one of the supports that are generally not NDIS supports, the Tribunal is not able to include this support in a SOPS.
25. The Tribunal agrees with the respondent’s submission that the phrase “generally are not NDIS supports” does not operate to confer a discretion on the Tribunal to treat the requirements of Schedules 1 and 2 in the Transitional Rules as only general rules for guidance. Schedule 2 of the Transitional Rules read with subsections 10(6) and (7) of the Principal Act, makes it clear that the qualification that supports will “generally” not be a NDIS support refers to the possibility of a replacement support determination in respect of a particular participant. A replacement support determination has not and could not be made in this case. Therefore, because the Tribunal has found that the requested support of transport funding is listed in Schedule 2, it follows that as a result of paragraph 34(1)(f), it cannot be included in the applicant’s SOPS. As the Tribunal has made this determination it is not required to conduct a participant focused enquiry and make findings in relation to the criteria specified paragraphs 34(1)(aa) to (e) of the Principal Act.
26. In summary, the Tribunal determines that the transport funding requested is not a NDIS support.
Reimbursement for costs associated with a dental procedure ($7,380)
27. In the applicant’s SOFIC, the following submissions are made in relation to reimbursement for dental procedures that the applicant has undergone namely; two fillings, nine stainless steel crowns and associated costs such as anaesthesia and inpatient accommodation:[8]
[8] JTB 6.
The Applicant seeks reimbursement for a dental procedure addressing conditions directly caused by her primary and secondary disabilities, including autism, pica, and moderate intellectual disability.
The Respondent relies on Table 2, Item 12(a) of the Transitional Rules, which excludes the clinical treatment of dental conditions. However:
·The procedure is not general dental care but a disability-specific intervention necessary to prevent harm and maintain the participant’s health.
·Evidence from Dr Chan confirms that the participant’s dental issues are directly caused by her disabilities and required urgent treatment.
Rule 7.5 of the Supports Rules excludes funding for general health services but allows for disability-specific supports. The requested procedure falls within this scope.
Reimbursement for the dental procedure represents value for money as it prevents further deterioration of the Participant’s dental health, which could lead to increased pain, behavioural challenges, and the need for more costly medical and NDIS-funded interventions.
Reimbursement aligns with section 34(1)(d) of the Act, as the intervention is effective, beneficial, and necessary to maintain the Participant’s functional capacity and quality of life.[9]
[9] JTB 21 – 22.
28. In relation to the reimbursement for dental costs the respondent submits in its SOFIC that:
The Respondent contends that this support is not a NDIS support in respect of the
Applicant, and that as such it cannot be a reasonable and necessary support having regard to s 34(1)(f) as amended.
Table 2, item 12, support (a), states “the diagnosis, early intervention and clinical
treatment of health and dental health conditions, including ongoing or chronic health conditions” are generally not NDIS supports.
The Respondent acknowledges the Applicant’s evidence, namely Dr Chan, specialist paediatric dentist, undated, which states:
a.The Applicant has pica, in which she “eats sand, ice, rocks and other non food items which have an abrasive texture or are very hard and can potentially break teeth”.
b.The Applicant has Molar Incisor Hypomineralisation (MIH), in which several of the Applicant’s permanent molars and incisors are “structurally weaker, less mineralised and very easy to breakdown.”
c.The Applicant was recommended urgent “treatment” including stainless steel crowns to protect the teeth, due to the cumulative effect of the Applicant’s diagnoses.
d.The “causation of the dental problems is contributed by her autism, pica and intellectual disability.”
Despite the above, the Respondent is unaware of any evidence that suggests the request for reimbursement falls outside the scope of a clinical treatment of a dental health condition, such that the Tribunal could consider whether the support otherwise meets the criteria in s 34. As referenced above, Dr Chan’s evidence indicates the proposed dental intervention is a treatment to protect the Applicant’s dental health.
Further, relevant to considering whether a support is most appropriately funded
through the NDIS as required by 7 of the National Disability Insurance Scheme
(Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 [sic][10], the Supports Rules state that the NDIS will not be responsible for:
[10] The relevant rules are 7.5(a) – (c) of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports Rules).
(a) The diagnosis and clinical treatment of health conditions.
(b) Activities that aim to improve the health status of Australian, including dental care.
(c) Funding time-limited services where the predominant purpose is treatment
directly related to a person’s health status.[11]
[11] JTB 6 – 7.
29. Dr Chan is a specialist paediatric dentist. The applicant was 6 years old when she commenced treatment with Dr Chan. In Dr Chan’s undated report she says:
[The applicant] has Autism (level 3), moderate intellectual disability and PICA in which she eats sand, ice, rocks and other non-food items which have abrasive texture or are very hard and can potentially break teeth.
As her permanent teeth erupted, several of her permanent molars and incisors are affected by a developmental condition called Molar Incisor Hypomineralisation (MIH), which means the enamel of the affected teeth are structurally weaker, less mineralised, and very easy to breakdown.
In March 2024, as these adult teeth emerged more and became weaker, enamel started chipping away, especially due to her PICA, chewing hard, non-food items, really put these teeth at risk. To protect these teeth, and to avoid further complications like fracture, nerve exposure, pain, infection etc, we suggested to protect these teeth by placing stainless steel crowns on them. She was also starting to have symptoms from these teeth eg. sensitivity and mild pain, so treatment could not be delayed.
Due to her young age and limited cooperation for comprehensive dental treatment, a general anaesthetic (GA) was required at a private hospital (Sunshine Private Hospital), with specialist anaesthetist (Dr Eugene Neo) and private paediatric dentist (myself) to perform the treatment. The dental condition required urgent treatment. Seeking treatment from the public system would incur a one – two year long waiting list. Therefore, the private dental treatment pathway was sought. In that GA appointment (9 May 2024), several more of her baby teeth were found to have cavities, which could be related to her PICA behaviour. The chewing of hard items has weakened her teeth and made her teeth more susceptible to dental decay.
A total of two fillings and nine stainless steel crowns were performed on the 9th of May 2024. The dental problems are closely related to her PICA condition, autism and intellectual disability. The treatment was urgent and necessary. Her family had paid for the treatment out of their own pocket which is in excess of $4000. We are writing to request NDIS fund the cost of the dental treatment including the dental restorations, anaesthetist and hospital fees. The causation of the dental problems is contributed by her autism, PICA and intellectual disability.[12]
[12] JTB 285.
30. Contrary to the applicant’s submissions, the applicant’s dental problems are not directly caused by her disabilities. The evidence of Dr Chan is that the applicant has a developmental condition (MIH) and this condition is contributed to by her PICA, autism and intellectual disability. The dental treatment the applicant underwent was not a disability specific intervention. She suffers MIH and she would have that condition regardless of her PICA, autism or intellectual disability.
31. Taking into account the evidence, the submissions made and the applicable law, stage one of this consideration requires the Tribunal to ascertain whether the dental treatment the applicant has had requested reimbursement for is a NDIS support as defined. The Tribunal finds that the dental treatment does fall within the scope of the Table to Schedule 2 of the Transitional Rules, Item 12, – Column 1 - Category (health), Column 2 -Supports (a) (the diagnosis, early intervention and clinical treatment of health and dental health conditions, including ongoing or chronic health conditions). The Tribunal finds that the dental treatment that the applicant has had related to the diagnosis, early intervention and clinical treatment of her dental health condition, namely MIH.
32. As a result of the Tribunal finding that the dental treatment requested is not a NDIS support, it cannot be approved for inclusion in the applicant’s SOPS because of paragraph 34(1)(f) of the Principal Act. In the circumstances it is not necessary to proceed to determine whether or not the requested support satisfies each of the other criteria specified in paragraphs 34(1)(aa) to (e).
33. Further support for this determination, can be found in the National Disability Insurance Scheme (Supports for Participants Rules) 2013 (Supports Rules). Rule 7.5 relevantly states:
The NDIS will not be responsible for:
a)the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions;
b)other activities that aim to improve the health status of Australians, including, general practitioner services, medical specialist services, dental care, nursing, allied health services (including acute and post acute services) preventative health, care in public and private hospitals and pharmaceuticals or other universal entitlements;
c)funding time-limited, goal-oriented services and therapies:
i.where the predominant purpose is treatment directly related to the person’s health status; or
ii.provided after a recent medical or surgical event, with the aim of improving the person’s functional status, including rehabilitation or post-acute care;
34. The evidence establishes that the applicant’s dental treatment falls within Rule 7.5 and the Tribunal finds that it is not a NDIS support. As stated, it also falls within the table in Schedule 2, item 12(a) of the Transitional Rules. For the reasons stated above the term “generally” referred to in Schedule 2 does not mean that the Tribunal has a discretion to determine that this treatment is a NDIS support.
35. The evidence is that the applicant’s dental treatment had already been paid for by her family[13] and the request is for reimbursement of the expenses incurred. The Tribunal has previously found in other cases that it does not have the power to order the respondent to reimburse funds expended for supports even if there is a finding that those supports were reasonable and necessary.[14] Any decision for reimbursement would need to be made by the respondent. However, having found that the dental treatment is not a NDIS support, the question of reimbursement is not relevant to this application.
[13] JTB 285.
[14] WWWX and National Disability Insurance Agency [2024] ARTA 285 (‘WWWX’); TRCH and National Disability Insurance Agency [2024] AATA 2918; XXWC and National Disability Insurance Agency [2020] AATA 923.
36. In summary, the Tribunal determines that the costs associated with the dental procedures is not a NDIS support.
Swimming lessons (40 lessons at 30 minutes per session)
37. In the applicant’s SOFIC, the following contentions are made:
· the applicant seeks funding for swimming lessons to address safety risks arising from the participants intense attraction to water and poor impulse control.
· The respondent relies on Table 2, Item 4 of the Transitional Rules, which excludes costs associated with recreational activities. However,
o the swimming lessons are not recreational but a targeted intervention addressing a critical safety risk.
o Evidence from professionals including Fiona Le Nepveu and Joanne Rogers, confirms that individualised lessons are necessary to mitigate life-threatening risks and develop essential safety skills.
· Funding swimming lessons represents value for money by reducing the risk of drowning or other water-related accidents, which could result in significant physical harm and require expensive medical or therapeutic interventions.
· Funding swimming lessons aligns with section 34(1)(b) of the Act by supporting the participants social and community participation and section 4 of the Act by promoting her safety and independence.
· Swimming lessons mitigate safety risks arising from the participants primary disability and are not recreational in nature.[15]
[15] JTB 22 – 23.
38. The respondent submits in its SOFIC:
· Swimming lessons fall within Table 2, item 4, support (h) which states that “costs associated with recreational supports and activities, including membership costs, venue hire fees, uniforms and footwear” are generally not NDIS supports. The respondent relies on the ordinary meaning of recreational activity to include sport (organised or not), or any pursuit or activity engaged in for enjoyment, relaxation, for leisure.
· In the alternative swimming lessons fall within Table 2, item 4, support (q) which states that “general health, fitness, social or recreational activity costs or services” are generally not NDIS supports.
39. The evidence includes a report dated 28 April 2022 from Ms F Le Nepveu (paediatric occupational therapist), Professor B Tonge (consultant child and adolescent psychiatrist) and Ms K Kallady (psychologist-educational and developmental). The report is addressed to the applicant’s grandmother. The report states:
We discussed and observed [the applicant’s] play and behaviour…[The applicant] displayed some sensory seeking behaviours for example you reported she is “obsessed” with water and likes to detach fabrics and we observed her rubbing the therapists pants and fabric chairs today.
In addition to these ASD symptoms listed above, you have concerns about [the applicant’s] impulsivities and her lack of awareness of her own safety. [The applicant] is fascinated by water, no matter if it is running taps, water in containers or large bodies of water such as baths, pools and the ocean. You need to be extremely vigilant with her in these environments, for example you have seen her walk and run towards the ocean without checking to see if it is safe..[16]
[16] Ibid 249 – 250.
40. The 2022 report further states:
it is imperative that [the applicant and her grandmother] receive funding to access a water safety program that is individualised and targeted to her developmental level, given [the applicant’s] intense attraction to water.[17]
[17] Ibid 251.
41. The evidence also includes a report from Joanne Rogers (occupational therapist) dated 29 July 2024. In that report she states:
Swimming – [the applicant] would not currently be safe accessing a group swimming lesson as she has poor impulse control. She requires repetition and consistent messaging [the applicant] uses a visual communication board in her daily life and therefore her swimming instructor needs to use visuals at times to support instructions. This would also not be possible in a group setting.[18]
[18] Ibid 267.
42. In a report from T Schneider (co-ordinator) of Distinctive Options dated 27 October 2023, she says that the applicant would benefit from receiving swimming lessons, to give her experience with being part of a group and having to take turns and learn to swim and be safe around and in the pool.[19] However, the Tribunal notes that the funding request is for individual swimming lessons.
[19] Ibid 78.
43. There is a report dated 20 March 2025, from Ms Acevedo, the administrator from the Kyneton Sports and Aquatic Centre where the applicant currently has swimming lessons. In that report she says:
[The applicant] attends a special needs session here at the centre, focusing on her safety in and around water as well as his [sic] general well-being.
All of our special needs classes are run by Aquatic Instructors who have the Teacher of swimming and water safety – Access and Inclusion endorsement which allows them to specifically teach our private special needs classes.[20]
[20] Ibid 611.
44. The Tribunal accepts that at the time the report was written by Ms F Le Nepveu, Professor B Tonge and Ms K Kallady on 28 April 2022, it was imperative for the applicant to attend an individualised water safety program targeted at her developmental level, given her intense attraction to water. The applicant is now eight years old, and it appears from the evidence that she has been receiving swimming and water safety lessons for three years. As previously noted, the funding request is for individual swimming lessons.
45. In the case of WWWX, General Member Dodd said at [329] that the funding of swimming lessons for young children, regardless of whether they have a disability or not, would reasonably be considered by the community to be a parental [carer] responsibility. This is reflected in the Transitional Rules (Schedule 2, items 4(h) and (q)) by indicating that the costs associated with recreational sports and general health and fitness are day-to-day living costs that are generally not NDIS supports. In that case he determined that the funding of the gap between group sessions swimming fees and one-on-one fees was reasonable and necessary in that case because there was evidence that swimming would provide benefits to the applicant in terms of body strengthening and it was appropriate therapy for the applicant’s hypermobility in terms of low joint impact muscle strengthening.
46. In the case of NPMQ and Chief Executive Officer of the National Disability Insurance Agency,[21] Senior Member Parker considered a request for swimming lessons for a child who had been diagnosed as having a moderate to severe intellectual disability, autism spectrum disorder and attention deficit hyperactivity disorder. He had significant communication difficulties, fine motor control problems, sleep issues and exhibited behaviours of concern.
[21] [2024] ARTA 96.
47. At [243] Senior Member Parker said:
The Tribunal notes that in Schedule 2 to the NDIS Supports Transitional Rules includes Item 4 which is a support which is not an NDIS support. This Item is described in Column 1 as “Day-to-Day living costs – lifestyle” and particularised in Column 2, as relevant to this case, as being, “costs associated with recreational sports and activities, including membership costs, venue hire fees, uniforms and footwear”. Swimming is a recreational activity. The Tribunal considers that the request for the cost of swimming lessons is a not an NDIS support according to Schedule 2 of these rules. The Tribunal concludes that the request for funding to pay for swimming lessons for NPMQ, whether they be individual or group lessons, does not meet the criterion under s 34(1)(f) of the NDIS Act.
48. Senior Member Parker also referred to Rules 5.1 and 5.2 of the Support Rules. Rules 5.1(b) and (d) provide that a support will not be provided or funded under the NDIS ‘if it is not related to the participants disability’ or ‘if it relates to day-to-day living costs…that are not attributable to a participants disability support needs.’ Rule 5.2 (a) says that the day-to-day living costs referred to in rule 5.1(d) do not include ‘additional living costs that are incurred by a participant solely and directly as a result of their disability support needs.’ Senior Member Parker concluded that the cost of swimming lessons for NPMQ did not meet paragraph 34(1)(f) because it was not a NDIS support and further approval of such funding was excluded on the basis that it was an additional day-to-day living cost which was not incurred solely and directly as a result of the participants disability support needs.
49. There is no evidence that the applicant currently requires swimming lessons for any physical or other disability that she suffers from. There is no doubt that the applicant would benefit from attending group activities encouraging her to have conversations with, play with and engage with other children. On the facts of this case, it is the Tribunal’s view that individual swimming lessons for the applicant falls within the costs associated with a recreational sport and activity or general health, fitness, social or recreational activity costs or services. Therefore, it is excluded pursuant to Schedule 2, Item 4(h) or (q). For the reasons previously stated, once the Tribunal has made a finding that the requested support is not a NDIS support it has no discretion to consider the benefit of the support to the applicant.
50. In summary, the Tribunal determines that the funding request for individual swimming lessons is not a NDIS support.
CONCLUSION
51. For the reasons stated the Tribunal concludes that the requested supports of transport funding; reimbursement of costs of and associated with dental procedures and swimming lessons are not NDIS supports in respect of the applicant by operation of the Transitional Rules.
DECISION
52. The Tribunal sets aside the decision under review pursuant to section 105(c) of the Administrative Review Tribunal Act 2024 (Cth) and remits it to the respondent for reconsideration in accordance with the order that the respondent must facilitate the approval of a new statement of participant supports for the applicant containing the following provisions:
a.an additional 1.5 hours per week funding for social, economic and community participation.
b.Removal of the condition in the existing statement of participant supports requiring the applicant’s carer to be present when the support worker is being accessed.
53. All other provisions in the existing statement of participant supports remain unchanged.
3. I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Clues
4. [ SGD ] ..............................................
5. Dated: 7 May 2025
Date(s) of hearing: 26 March 2025 Solicitors for the Applicant: Applicant’s Grandmother Counsel for the Respondent Mr T Noonan Solicitors for the Respondent: NDIA
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