ZNVT by his Nominee ZNVT(N) and CEO, National Disability Insurance Agency (NDIS)

Case [2025] ARTA 1824

ZNVT by his Nominee ZNVT(N) and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1824 (18 September 2025)

Applicant/s:  ZNVT by his Nominee ZNVT(N)

Respondent:  CEO, National Disability Insurance Agency

Tribunal Number:                2024/2174

Tribunal:Senior Member P French

Place:Melbourne

Date: 18 September 2025

Decision:(1)Pursuant to s 105 of the Administrative Review Tribunal Act 2014 (Cth) the decision under review made pursuant to s 48 of the National Disability Insurance Scheme Act 2013 (Cth) on 17 June 2025, as varied by a decision made pursuant to s 47A of that Act on 5 August 2025 is set aside and remitted to the CEO for reconsideration by 15 October 2025 in accordance with directions that:

(a)  in the Core Supports category: the provision of 45 hours per week of support worker assistance at a ratio of 2:1 is to be varied to state that 28.5 hours is to be calculated at the weekday rate, 4.5 hours is to be calculated at the Saturday rate, and 12 hours is to be calculated at the Sunday and Public holiday rate,

(b)  the following supports are to be approved for inclusion in the Applicant’s Statement of Participant Supports:

(i)funding for 28 days Short Term Accommodation, calculated in the usual way,

(ii)funding of $3,900.00 for the annual rental costs of the Applicant’s Rifton Walker,

(iii)additional annual repair and maintenance funding of up to $1000.00 each for the repair and maintenance of the Applicant’s R82 Hi Lo X wheelchair and R82 Heron J12467 Shower Commode,

(iv)annual funding for occupational therapy, being:

a.24 hours per year for direct therapy sessions to be delivered to the Applicant approximately fortnightly, and

b.30 hours for a Functional Capacity Assessment(s) related to motor vehicle and home modifications and report writing,

(v)Funding for home modifications to be completed in accordance with the scope of works prepared by Mr S Daley dated 5 December 2023, subject to current builder quotations being obtained for this work.

(c)   The support specified in paragraph 1(a)(iv) is to replace the Applicant’s existing funding for occupational therapy,

(d)  All other supports in the Applicant’s current Statement of Participant Supports, excepting any one-off assistive technology supports already used, are to be replicated from the date on which the supports specified in paragraph 1(a) are included in the Applicant’s Statement of Participant Supports until the reassessment date,

(e)  the date by which the CEO must reassess the Applicant’s plan is to be 12 months after the supports in paragraph 1(a) and (b) are included in the Applicant’s Statement of Participant Supports.

(2) Pursuant to s 101(a) of the Administrative Review Tribunal Act 2024 (Cth) the application for review insofar as it concerns the internal review decision dated 26 March 24, the decision to approve a Statement of Participant Supports dated 30 April 2024, and the further decision to approve a Statement of Participant Supports dated 16 August 2024, as subsequently varied on 10 December 2024, 11 February 2025, 31 March 2025, 2 May 2025, 27 May 2025, and 6 June…

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AGLC
ZNVT by his Nominee ZNVT(N) and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1824
Case
[2025] ARTA 1824
Decision Date

CaseChat Overview and Summary

The case involves ZNVT, represented by his nominee, ZNVT(N), and the CEO of the National Disability Insurance Agency (NDIS) as the respondents. The dispute pertains to the review of the CEO's decision to approve certain supports outlined in a Statement of Participant Supports (SOPS). The crux of the matter is whether the requested supports are deemed reasonable and necessary under the National Disability Insurance Scheme (NDIS) Act and associated rules. This matter was heard and determined by the relevant Australian court.

The central legal issues the court had to address included whether the requested supports, such as disability support worker assistance, short-term accommodation, assistive equipment, and home modifications, met the criteria of being "NDIS Supports" as defined under the NDIS Supports Transitional Rules. Furthermore, the court needed to decide if these supports were reasonable and necessary to address ZNVT's needs arising from his impairments, in line with the requirements of the NDIS Act and associated rules.

In examining the evidence and arguments presented, the court found that certain supports were indeed NDIS Supports as defined by the relevant rules. However, not all requested supports were approved. For instance, while 12 hours of 2:1 support calculated at Sunday rates was approved, 15 days of overnight disability support worker assistance during periods of illness was not. Similarly, while 28 days of short-term accommodation was approved, the full 40 days requested was not. The court's reasoning hinged on a strict interpretation of the NDIS Act and Rules, ensuring that exceptions and approvals were narrowly read. The court also considered the necessity and reasonableness of the supports in relation to ZNVT's specific impairments and needs.

The court's final decision involved a detailed analysis of each requested support, balancing the need for reasonable and necessary supports against the strict criteria set out in the legislation and rules. Certain supports, such as the funding for a Rifton pacer and repairs for specific equipment, were approved with specific monetary allocations. Conversely, other requests, such as funding for iPads and iPad accessories, music therapy, and complex home modifications, were not approved due to various reasons including not being classified as NDIS Supports or not meeting the necessity criteria. The reassessment date was set at 12 months to allow adequate time for the implementation of the approved plan.

In conclusion, the court's decision was grounded in a meticulous examination of the evidence and a rigorous application of the statutory criteria, ensuring that only those supports that strictly met the requirements were approved.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 34(1) of the NDIS Act provides, relevantly, that for the purposes of specifying the reasonable and necessary supports that will be funded in a SOPS, the CEO must be “satisfied” of each of the matters set out in that section in relation to the funding of each such support. In this independent review, the Tribunal must also be so satisfied. This is a state of positive satisfaction or relative certainty which must be attained in relation to each criterion specifically.[6] Therefore, while neither the Applicant nor the Agency bear any formal onus of proof, the Applicant does bear the practical onus of placing before the Tribunal, or pointing to material before the Tribunal, that can persuade it that each of the supports in dispute is reasonable and necessary.[7][6] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [60]; National Disability Insurance Agency v WRMF (2020) 378 ALR 449 at 491 [201][7] Beezley v Repatriation Commission [2015] FCAFC 165 (2015); 150 ALD 11 at [68]; HPSC and National Disability Insurance Agency [2021] AATA 727 at [85]Evidence and hearing The following documentary material is before me:i.The documents filed by the CEO in accordance with the obligations imposed by s 37 and s 38AA of the AAT Act (T-Documents),ii.Hearing Tender Bundle prepared by the CEO in consultation with the Applicant, filed on 18 October 2024. I note that this included:a.The CEO’s Statement of Facts, Issues and Contentions, dated 30 August 2024,b.The Applicant’s submissions by way of reply dated 11 October 2024,c.A statement of ZNVT dated 3 July 2024,d.A statement made by ZNVT(N) dated 26 November 2023,e.A supplementary primary carer’s statement made by ZNVT(N) dated 11 October 2024,iii.A copy of an email and quotation for a motor vehicle modification sent by motor vehicle modification business to ZNVT(N) dated 14 May 2024, called for by the CEO during cross-examination of ZNVT(N), and filed by the Applicant on 21 October 2024,iv.A copy of two documents related to a RT83 Heron Rifton Walker and repairs to a R82 Hi Lo Xpanda Chair called for by the CEO during cross-examination of ZNVT(N), and filed by the Applicant on 22 October 2024,v.Documents called for by the CEO during cross-examination of ZNVT(N) and Mr Jordan Opitz, Support Worker (being records of repair to a R82 Hi Lo Xpanda Chair and phone records in relation to hours worked respectively), filed by the Applicant on 28 October 2024,vi.A further report of Ms Kathryn Daniel, Speech Therapist, dated 22 October 2024, filed by the Applicant on 28 October 2024,vii.Documents called for by the CEO during cross-examination of ZNVT(N), being records of support worker hours worked, filed by the Applicant on 6 November 2024,viii.A copy of Mr Poss Dowell’s, Support Worker, Driver’s License called for by the CEO and filed by the Applicant on 6 November 2024,ix.The Applicant’s Statement of Facts, Issues and Contentions filed on 6 November 2024,x.CEO’s Statement of Facts, Issues and Contentions filed on 15 November 2024,xi.Documents filed by the Applicant in relation to repair and maintenance costs for a R82 Hi Lo Xpanda Chair, payments made in relation to the Rifton Pacer, an updated quotation for installation of a Turny Evo, and an incident report made by Mr Jordan Optiz, Support Worker, filed 14 February 2025,xii.A supplementary report of Ms Vicki Rushton, Occupational Therapist, and an associated letter of instruction, filed by the CEO on 17 February 2025,xiii.Revised quotations for home modifications, including for the installation of a ceiling hoist, filed by the Applicant on 19 February 2025,xiv.Invoices related to maintenance and repair of equipment, costs of consumable items, and revised quotations for home modifications, filed by the Applicant on 19 February 2025,xv.Correspondence between the parties between October and December 2024, including in relation to a CEO proposed functional capacity assessment of the Applicant, filed by the Applicant 19 February 2025,xvi.An aquatic physiotherapy report and case notes called for by the CEO during cross-examination of Mr Marty Hughes, physiotherapist, filed on 27 February 2025,xvii.An updated Statement of Lived Experience made by ZNVT dated 5 March 2025, and an updated schedule of requested supports, filed by the Applicant on 5 March 2025,xviii.An incident report dated 9 March 2025, and a quotation and email exchange between ZNVT(N) and a motor vehicle modification business concerning motor vehicle modifications filed by the Applicant on 28 March 2025,xix.The CEO’s submission in reply, including Appendix ‘A’, filed on 28 March 2025,xx.Documents related to the contract for the Rifton Pacer called for by the CEO and subject to further cross-examination of ZNVT(N), filed by the Applicant 3 April 2025,xxi.Documents related to the cost of Pediasure called for by the CEO and filed by the Applicant on 3 April 2025.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Additionally, the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Rules 2024 (Cth) (the NDIS Supports Transitional Rules) and the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth) (the Miscellaneous Provisions Rules) are relevant in determining the paragraph 34(1)(f) consideration. Consideration Having regard to the current state of the law, the questions that must be asked in this review, and the sequence in which they must be asked and answered is as follows:(a)Are the supports that are in dispute NDIS Supports as defined?If the answer to this question is “no” with respect to any of the supports in dispute, that support can no longer be considered for approval in the Applicant’s SOPS because it cannot meet the requirement of s 34(1)(f).If the answer to (a) is “yes” with respect to any of the supports in dispute, then that support can be considered for approval in the Applicant’s SoPS if it is a support that is necessary to address needs that arise from an impairment in relation to which he meets the disability requirement. Therefore:(b)What are the Applicant’s permanent impairments that result in substantially reduced functional capacity to undertake any of the activities of communication, social interaction, learning, mobility, self-care and self-management, and which affect his capacity for social or economic participation?(c)Do any of the supports in dispute meet the needs of the Applicant arising from an impairment in relation to which he meets these disability requirements?If any of the supports in dispute do not meet the needs of the Applicant arising from an impairment in relation to which he meets the disability requirements then they cannot be considered for inclusion in his SOPS because they cannot meet the requirements of s 34(1)(aa).(d)If the answer to (c) is “yes” then ask whether the support in dispute meets the requirements of s 34(1)(a), (b), (c), (d) and (e) and Rule 7 of the Miscellaneous Provisions Rules.Are the supports that remain in issue NDIS Supports? There is no issue between the parties that the supports identified at paragraph 10(i) to (iv) and (viii) to (xi) are NDIS Supports within the meaning of paragraph 34(1)(f) by operation of the NDIS Supports Transitional Rules. In this respect I make these findings:-The requested supports identified at paragraph 10(i) and (ii) (disability support worker assistance) falls within the scope of:-Item 14, ‘Daily personal activities’, in Schedule 1 of the NDIS Supports Transitional Rules, being ‘[s]upports that provide supervision or assistance with personal daily living tasks to help a participant to live as independently as possible in their own home and in the community’ which includes: ‘(a) assistance with eating and drinking, dressing and toileting’ and ‘(d) maintaining personal hygiene, including showering, bathing, hair washing and drying, fingernail and toenail cutting and cleaning’ and ‘(c) moving and positioning’, and-Item 27, ‘Participation in community, social and civic activities,’ in schedule 1 in of the NDIS Supports Transitional Rules, being ‘[s]upports that assist a participant to take part in community, social, cultural and civic activities,’ which includes ‘(a) supporting participants during relevant activities’ and ‘(b) working with participants to develop their ability to partake in these activities’.-The requested support identified at paragraph 10(iii) (STA) falls within the scope of Item 5, ‘Assistance with daily life tasks in a group or shared living arrangement’ in Schedule 1 in the NDIS Supports Transitional Rules, being ‘[s]upports that provide assistance with or supervision of daily living tasks to participants in a shared living environment’ which includes ‘(b) supports for short-term accommodation and respite’.-The requested support identified at paragraph 10(iv) (Occupational Therapy) falls within the scope of Item 34, ‘Therapeutic supports’ in schedule 1 in the NDIS Supports Transitional Rules, being ‘[s]upports that provide evidence-based therapy to help participants improve or maintain their functional capacity in areas such as language and communication, personal care, mobility and movement, interpersonal interactions, functioning (including psychosocial functioning) and community living. This includes an assessment by allied health professionals for support planning and review as required’.-The requested supports identified at paragraphs 10(viii), (ix) and (x) (assistive equipment rental, repair and maintenance costs) fall within the scope of Item 28 ‘Personal mobility equipment’ in Schedule 1 in the NDIS Supports Transitional Rules, being ‘[t]he provision of personal mobility equipment that supports or replaces a participant’s capacity to move indoors or outdoors and to transfer from one place to another’ which includes ‘(a) assistive products for walking’ and ‘(b) wheelchairs and motorised mobility devices’ and ‘(e) maintenance, spare parts and consumable items specific to equipment provided’.-The requested supports identified at paragraph 10(x) (home modifications including the installation of a ceiling hoist) fall within the scope of:-Item 22 ‘Home modification design and construction’ which includes ‘[s]upports that design, change or modify a participant’s home to help the participant live as independently as possible and to live safely at home’ which includes ‘installing equipment or changing a building’s structure, fixture or fittings’.-Item 28 in schedule 1 in the NDIS Supports Transitional Rules (as set out above), which includes ‘(c) transfer devices and hoists’,These supports are thus capable of being approved for incorporation into the Applicant’s SoPS on this basis.