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

[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 2025 is dismissed on the basis that it is now lacking in substance.

.....................[SGD]...................................................

Senior Member P French

Catchwords

National Disability Insurance Agency – reviewable decision of CEO – decision to approve a Statement of Participant Supports – whether requested supports are reasonable and necessary – Disability Support Worker Assistance – where 12 hours 2:1 support calculated at Sunday rates is requested – approved – where 15 days annually of overnight disability support worker assistance is sought during periods of illness – not approved – where 40 days annually of Short Term Accommodation is sought at weekend rates – 28 days of Short-Term Accommodation approved calculated in the usual way – where funding is sought for rental of Rifton pacer – approved – where additional maintenance and repair funding is sought for R82 Hi Lo X Wheelchair and R82 Shower commode outside the standard rate – $1000.00 approved for each item – where funding is sought for costs of replacing iPads and iPad accessories – where these are not a NDIS Support by operation of item 4 of schedule 1 of the NDIS Supports Transitional Rules – not approved – where funding is sought for the purchase of AAC software – found to be NDIS Support by operation of item 11 of Schedule 1 of the NDIS Supports Transitional Rules – NDIS Act and Rules beneficial legislation – exceptions to be read strictly and narrowly – but not approved on other grounds – where 120 hours of occupational therapy requested – 2 hour weekly sessions not found to be reasonable and necessary – fortnightly 1 hour sessions approved – additional occupational therapy support regarding motor vehicle and home modifications approved – where funding is sought for music therapy – found not to be a NDIS Support by operation of Item 34 of Schedule 1 of the NDIS Supports Transitional Rules – not approved – where funding is sought for complex home modifications – where Applicant has already had the benefit of complex home modifications at another property – whether reasonable and necessary in those circumstances – alternatives to home modifications – whether evidence of required home modifications is sufficient – approved; reassessment date – whether 6 or 12 month reassessment date is appropriate – 12 month reassessment date set to allow reasonable time for plan implementation.

Legislation

Acts Interpretation Act 1901 (Cth), 15AA
Administrative Appeals Tribunal Act 1975 (Cth), s 25, 37, 38AA
Administrative Review Tribunal Act 2024 (Cth), s 12, 101, 103, 105
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth), Schedule 16, Item 24
National Disability Insurance Scheme Act 2013 (Cth) s 3, 4, 5, 10, 17A, 31, 33, 34, 99, 100, 103, 209
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Act 2024 (Cth); Schedule 1; Item 129
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Transitional Rules 2024 (Cth); Schedules 1 and 2
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth): r 7

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth), rr 3.1, 3.2, 3.3, 3.4

Cases

Beezley v Repatriation Commission (2015) 150 ALD 111; [2015] FCAFC 165
Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607
Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; 24 ALR 577
Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
DQKZ and National Disability Insurance Agency [2024] AATA 2276
FSWN and National Disability Insurance Agency [2025] ARTA 114
HPSC and National Disability Insurance Agency [2021] AATA 727
IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1
Mulligan v National Disability Insurance Agency [2015] FCA 544
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) 2 ALD 634
Shi v Migration Agent’s Registration Authority (2008) 235 CLR 286
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v WRMF (2020) 378 ALR 449
National Disability Insurance Agency v KKTB, by her litigation representative CVY22 [2022] FCAFC 181
WQSW and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2024] ARTA 235
X v Commonwealth (1999) 200 CLR 177

Secondary Materials
National Disability Insurance Agency, Assistive Technology – Guide for funding of annual repairs and maintenance (undated).
National Disability Insurance Agency, Our guideline – Short Term Accommodation or Respite, 24 June 2022
National Disability Insurance Agency, Pricing Arrangements and Price Limits 2025-26, 30 June 2025.
National Disability Insurance Agency, Pricing Arrangements for Specialist Disability Accommodation 2025-26, 30 June 2025

World Health Organisation, (2011), International Classification of Functioning, Disability and Health, Geneva

Statement of Reasons

1. This is an application concerning ZNVT made by his Plan Nominee and mother (ZNVT(N) (the Applicant) pursuant to s 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act) for independent review of a decision of the delegate of the Chief Executive Officer of the National Disability Insurance Agency (CEO, NDIA, the Agency) made under s 100(6) of the Act on 26 March 2024 which varied the original decision of another delegate of the CEO made on 21 December 2023 to approve a Statement of Participant Supports (SOPS) for the Applicant under s 33(2) of the Act that did not include several supports requested by him. The Tribunal has jurisdiction under s 12 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) to review this decision because it is designated a reviewable decision by item 4 in the table to s 99(1) of the NDIS Act.[1] This application was made to the Tribunal on 9 April 2024.

   [1] This proceeding commenced before the Administrative Appeals Tribunal (AAT) in accordance with the power conferred by s 25 of the Administrative Appeals Tribunal Act 1975 (Cth). The AAT was abolished and replaced by the Administrative Review Tribunal (ART) with effect from 14 October 2024. By operation of Item 24 in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) any proceeding which was not determined by 14 October 2024 continues in the ART and is to be determined by the application of the provisions of the ART Act.

2. While this application has been before the Tribunal, pursuant to s 33(2) of the Act, a delegate of the CEO approved two new SoPS by decisions made on 30 April 2024 and 16 August 2024 following unscheduled reassessments conducted pursuant to s 48 of the Act. After those decisions, the Applicant’s SoPS was further varied pursuant to s 47A of the Act by decisions made on 11 December 2024, 11 February 2025, 31 March 2025, 2 and 27 May 2025 and 6 June 2025. Then on 17 June 2025 a delegate of the CEO approved a new plan and SOPS for the Applicant pursuant to s 48 of the Act to incorporate the proceeds of a consent order made in these proceedings in partial settlement of the issues in dispute. Pursuant to s 47A of the Act of a delegate then varied that decision on 5 August 2025. By operation of s 103(2) of the NDIS Act the application before the Tribunal is also taken to be an application for review of each of these subsequent decisions to the internal review decision.

3. However, it is the CEO’s decision to approve a SoPS made on 17 June 2025 as subsequently varied by the decision of 5 August 2025 which is the current operative decision for the purposes of this review. The application insofar as it concerns the internal review decision and later decisions up to the decision of 17 June 2025 is therefore no longer of any substance and is dismissed on this basis.

4. As will be apparent from what I have just set out, by the end of the hearing in this review the parties had achieved some common ground in relation to what had been an extensive number supports in dispute.  After the hearing, on 19 May 1025, they filed signed Terms of Agreement in relation to those supports that had been agreed as reasonable and necessary. On 27 May 2025 I made an order pursuant to ss 103(1) and (2) of the ART Act to give effect to that agreement.  In accordance with s 103(3) of the ART Act, I deal no further with the matters contained in that consent order, except as to one matter which I explain following.

5. What that left before me to determine are the Applicant’s requests for additional funding for 11 supports, being in relation to the provision of additional disability support worker hours, Short Term Accommodation (STA), equipment purchase and rental, ACC software purchase, repair and maintenance costs for assistive equipment, occupational and music therapy, and complex home modifications.

6. For the reasons set out following I have determined that the current operative SoPS decision should be set aside and remitted to the CEO for reconsideration in accordance with the directions set out in my orders.  This will result in the incorporation of some further supports requested by the Applicant, perhaps most notably funding for complex home modifications. It will also result in some other supports being included, but not to the full extent sought by the Applicant.  Not all the Applicant’s requested supports have been approved as reasonable and necessary.

7. The case has raised some notable issues concerning the operation of the NDIS Supports Transitional Rules.  In this respect I have found on the evidence before me in this case that music therapy is not a NDIS Support by operation of Item 34 of Schedule 1 of those Rules, but that AAC[2] software is by operation of Item 11, despite the reference to it in Rule 7 of those Rules.  I have also found that an iPad and iPad mini are both ‘tablets’ and ‘computers’ for the purposes of the NDIS Transitional Rules and are not NDIS Supports by operation of Item 4 of Schedule 2 of those Rules unless the CEO makes a replacement support determination in respect of them on the application of the Applicant. That is because Item 4 (d) and (f) of Schedule 2 prescribe objects not the circumstances of their use.

   [2] ‘Alternative/Augmentative Communication’

   The Applicant’s current participant plan

8. The Applicant’s current Participant Plan incorporates the following participant goals (the Applicant’s Statement of Goals and Aspirations):

   I would like to continue to experience the outdoors environment through sport and social engagement.

   I would like to build and maintain healthy relationships with my peers.

   I would like to maintain my current living arrangements and reduce reliance upon informal supports, as is appropriate for my age.

   To live in a safe environment where my house is modified and adapted to suit my disability.

   I would like to be able to access my immediate community and explore new places to socialise and learn about the world around me.

   I would like to maintain as much independence as possible for as long as possible.

9. The SoPS incorporated into the Applicant’s current Plan has a total budget of $697,228.80 for funded supports, for the period 17 June 2025 to 16 June 2026, which is divided into 6 categories. In the “Core Supports” category, total funding of $606,966.09 is available for ‘Assistance with Daily Life’, ‘Assistance with Social, Economic and Community Participation’ ‘Consumables’ and ‘Transport’. In the “Assistive Technology” category, total funding of $41,611.15 is available, which is principally comprised of items related to motor vehicle modifications to install a Turny Evo.  In the “Choice and Control” category, $1,485.75 is available to meet the costs of plan management.  In the “Assistive Technology Maintenance, Repair and Rental” category, $2,300.00 is available in relation to specified items of assistive technology.  In the “Improved Daily Living Skills” category, $29,612.00 is available for speech pathology, physiotherapy, occupational therapy, and disability related health support.  In the “Support Coordination and Psychosocial Recovery Coaches” category, $15,243.20 is available support coordination.

10. As noted above, by consent orders made on 27 May 2025 the decision then under review was set aside and remitted to the CEO with a direction that several requested supports be included in the Applicant’s SoPS, which now have been by the CEO’s s 48 decision made on 17 June 2025. What this leaves in dispute are the Applicant’s requests for approval of funding for the following:

    (i)12 hours of the already approved 45 hours per week of disability support worker assistance at 2:1 ratio to be approved for calculation in accordance with Agency’s pricing policy at the Sunday rate[3],

    [3] National Disability Insurance Agency, Pricing Arrangements and Price Limits 2025-2026, 30 June 2025.

    (ii)an additional 120 hours per year of disability support worker assistance to be utilised on a flexible, ad hoc, basis on days the Applicant is ill, to be calculated in accordance with the Agency’s pricing policy (15 8-hour days at 1:1 ratio, 7pm to 7am),

    (iii)40 days STA per year, funding for which to be calculated based on 20 days at Saturday rates and 20 days at Sunday rates,

    (iv)120 hours occupational therapy support per year, funding to be calculated in accordance with the Agency’s pricing policy. This is to include 45 2hour direct therapy sessions weekly, and 30 additional hours for functional capacity assessment in relation to motor vehicle and home modifications, report writing and travel,

    (v)10 hours music therapy per year, funding to be calculated in accordance with the Agency’s pricing policy,

    (vi)repair and maintenance costs for the Applicant’s 2 iPads (an iPad and iPad Mini), being up to $500.00 per year,

    (vii)replacement costs for the Applicant’s 2 iPads, iPad cases, screen protectors, and purchase costs for communication AAC ‘Apps’, being up to $1500.00 per year,

    (viii)repair and maintenance costs for a R82 Heron shower commode, being up to $2000.00 per year,

    (ix)repair and maintenance costs for a R 82 Hi Low X wheelchair seating system, being up to $2000.00 per year,

    (x)rental costs for a Rifton pacer, being $3900.00 per year,

    (xi)home modifications, involving modifications to a bedroom and bathroom including the installation of a ceiling hoist and inter-room tracking system and associated changes, to be completed in accordance with a proposed scope of works and quotations.

    The Tribunal’s role

11. The Tribunal’s role in conducting this review has been to reach its own conclusion as to whether the delegate’s decision to refuse to approve the Applicant’s requested supports in his SOPS is the correct or preferable decision.[4]  That has involved the independent re-assessment of the evidence that was before the delegate when they made their decision as well as the assessment of the additional documentary and witness evidence that was before the Tribunal at the time of the hearing.[5] 

    [4] Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; 24 ALR 577 (Drake) at 589

    [5]  Shi v Migration Agent’s Registration Authority (2008) 235 CLR 286 at [45] – [46]

    A note on the evidentiary onus of proof

12. 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

13. 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.

1. The principal hearing was conducted over 8 days, being 21-23 October 2024, 17-19 February 2025, 31 March 2025 and 3 April 2025.  This extended hearing timetable was necessitated by the number of witnesses and the time it took for their examination.  It was also anticipated that the parties would work towards the substantial resolution of the issues in dispute, including in relation to the home modification requests, between the October and February hearing days which necessitated time being made available for the attendance of an expert at the subject premises. Unfortunately, that did not occur.

2. The Applicant appeared on the first today of the hearing to introduce himself, but did not give evidence due to his level of impairment and disability.   His mother and Plan Nominee, ZNVT(N), gave oral evidence under affirmation, and was recalled twice.  The Applicant called as other witnesses in his cause Mr Sean Daly, Occupational Therapist, Mr Poss Dowell, Support Worker, Mr Jordan Opitz, Support Worker, Mr Marty Hughes, Physiotherapist, Ms Kathryn Daniels, Speech Pathologist, Dr Mike Field, Geneticist, Ms Victoria Lord, Occupational Therapist, and Ms Sally Lloyd, Occupational Therapist.   The CEO called as a witness an independent expert Ms Vicki Ruskin, Occupational Therapist.  All witnesses gave evidence under oath or affirmation.

   Applicable law

3. The NDIS Act is founded upon an explicit values base which is found in its objects (s 3), general principles (s 4), general principles guiding actions (s 5), and with respect to participants and their plans, in more specific principles contained in ss 17A and 31. It is unnecessary for present purposes to set out these value statements in detail.

4. In giving effect to the objects of the Act, regard must be had to the need to ensure the financial sustainability of the NDIS: s 3(3)(b). It is also a general principle that, relevantly, the CEO and any other person performing functions or exercising powers under the NDIS Act is to have regard to the need to ensure the financial sustainability of the NDIS: s 4(17).

5. Section 33 of the NDIS Act sets out the matters that must be included in a NDIS Participant Plan.

6. Pursuant to s 33(1), the Plan must include the Participant’s Statement of Goals and Aspirations.

7. Pursuant to s 33(2), the Plan must include a SOPS, prepared with the participant and approved by the CEO that specifies, relevantly to this case, (b) the reasonable and necessary supports (if any) that will be funded under the NDIS, and (c) the date by which or the circumstances in which, the Agency must reassess the plan.

8. Section 34 of the NDIS Act determines what is a “reasonable and necessary support” for the purposes of s 33(2):

   34       Reasonable and necessary supports

   (1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support.

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

   (a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;

   (b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;

   (c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

   (d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

   (e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

   (f)the support is an NDIS support for the participant.

   Note:For the purposes of paragraph (aa):

   (a)the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and

   (b)a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.

   (2)The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).

9. Sections 34(2), 35 and 209(2A) of the NDIS Act prescribe rule making powers in connection, relevantly, with the funding or provision of reasonable and necessary supports.  Several Rules made pursuant to these rule-making powers are potentially applicable in the circumstances of this case. 

10. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Supports for Participants Rules) inform the interpretation and application of the s 34(1) considerations. In this respect the following of these Rules are relevant in this review:

    Value for money

    3.1In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:

    (a)whether there are comparable supports which would achieve the same outcome at a substantially lower cost;

    (b)whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;

    (c)whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term…;

    …

    (e)whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;

    (f)whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports …;

    Effective and beneficial and current good practice

    3.2In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances.  That evidence may include:

    (a) published and refereed literature and any consensus of expert opinion;

    (b)       the lived experience of the participant or their carers; or

    (c)       anything the Agency has learnt through delivery of the NDIS.

    3.3In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.

    Reasonable family, carer and other support

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

    …

    (b)for other participants:

    (i)the extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community; and

    (ii)the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:

    (A)  the age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and

    (B)  the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and

    (C)  the extent of any risks to the long term wellbeing of any of the family members or carers …; and

    (iii)the extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes;

    (c)for all participants – the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.

    …

    General criteria for supports

    5.1      A support will not be provided or funded under the NDIS if:

    (a)       it is likely to cause harm to the participant or pose a risk to others, or

    …

    (c)it duplicates other supports delivered under alternative funding through the NDIS; …

11. 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

12. 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?

13. 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.

14. However, the CEO does put in issue the requested supports identified at paragraphs 10(v) to (vii) on the basis that these supports are not NDIS Supports within the meaning of the NDIS Supports Transitional Rules, and s 10 and paragraph 34(1)(f) of the Act. In this respect it is contended that :

    -Music therapy is not a therapeutic support that can come within the scope of item 34 of Schedule 1 of the NDIS Supports Transitional Rules because it is not an ‘evidence-based therapy’ that can have one or more of the beneficial effects required in relation to therapeutic supports for participants or prospective participants generally, and

    -The purchase of iPads and their accessories, and repair and maintenance costs associated with an iPad, are excluded as NDIS Supports by Item 4 ‘Day-to-day living costs – lifestyle’ which includes the following description of items that are not generally NDIS Supports: ‘(d) internet devices (such as modems and routers), land line phones, mobile phones (including smart phones), mobile phone accessories, tablets and sim cards’, and such supports are only capable of being funded if the CEO, in response to an application received from the Applicant, makes a ‘replacement support determination’ in accordance with paragraph 10(6)(a) of the Act and Rule 7 of the NDIS Supports Transitional Rules.

15. Before turning to further consideration of these matters it assists to set out the terms of s 10 of the Act and the relevant provisions of the NDIS Supports Transitional Rules made pursuant to that section.

16. Section 10 of the Act provides, relevantly:

    10       Definition of NDIS Support

    Supports that are NDIS Supports

    (1)  Subject to subsections (4) and (9), a support is an NDIS support for a person who is a participant or prospective participant if the support is declared by the National Disability Insurance Scheme rules made for the purposes of this subsection to be an NDIS support for:

    (a)participants or prospective participants generally; or

    (b)a class of participants or prospective participants that includes the person,

    …

    (4)  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.

    …

    (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 an 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 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.

    …

    (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.

    …

17. Rule 5 of the NDIS Supports Transitional Rules contains the ‘general rule’ as to whether a support is or is not a NDIS support.  It provides, relevantly:

    5         What supports are NDIS supports – general rule

    Supports that are NDIS Supports unless otherwise provided

    (1)  For the purposes of subsection 10(1) of the NDIS Act, a support covered by column 2 of an item in the table in clause 1 of Schedule 1 to this instrument is an NDIS support (subject to 10(4) and (9) of the NDIS Act and subsection (2) of this section) for:

    (a)Participants specified in column 3 of the item who have old framework plans; …

    …

    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 an NDIS support for any participant (subject to subsection 10(6) of the NDIS Act) or prospective participant.

    …

18. Schedule 1 of the NDIS Supports Transitional Rules provides, relevantly:

    1Supports that are NDIS Supports unless otherwise provided

    The following table sets out supports that are NDIS supports for participants and prospective participants (subject to subsections 10(4) and (9) of the NDIS Act and subsection 5(2) of this instrument):

    Supports that are NDIS supports unless otherwise provided

Column 1	Column 2	Column 3
Item	Supports	Conditions	Participants and prospective participants
…	…	…
11	Communication and information equipment	The provision of assistive products to support communication and information management This includes the following: (a) products that help a participant to receive, send, produce and/or process information in different forms; (b) products that facilitate a participant communicating by language, signs and symbols, receiving and producing messages, having conversations and using communication devices and techniques; … (d) maintenance, spare parts and consumable items specific to an assistive product.	Participants or prospective participants generally
…	…	…	…
34	Therapeutic supports	Supports 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	Participants or prospective participants generally
…	…	…	…

1. Schedule 2 of the NDIS Supports Transitional Rules provides, relevantly:

Column 1	Column 2	Column 3
Item	Supports	Conditions	Participants and prospective participants
…	…	…
4	Day-to-day living costs – lifestyle	The following: … (d) internet devices (such as modems and routers), land line phones, mobile phones (including smart phones), mobile phone accessories, tablets and sim cards; (e) internet, landline and mobile phone plans and data; (f) standard computers, standard computer accessories, consoles and games and subscriptions for streaming services …	Participants or prospective participants generally
…	…	…	…

1. Rule 7 of the NDIS Supports Transitional Rules deals with replacement support determinations.  It provides, relevantly:

   7         Replacement support determination

   Supports for which a determination may be made

   (1)  For the purposes of paragraph 10(6)(a) of the NDIS Act, the CEO may make a replacement support determination in relation to a support covered by column 1 of an item in the table in subsection (3) of this section.

   (2)  For the purposes of subparagraph 10(6)(d)(iv) of the NDIS Act, the CEO must be satisfied that the conditions set out in column 2 of an item in the table in subsection (3) are met before making a replacement support determination in relation to a support covered by column 1 of the item.

   (3)  The table is as follows:

   Replacement support determination

Column 1	Column 2
Item	Supports	Conditions
1	…	…
2	The following: ... (b) tablets; … (d) an app used for accessibility or communication purposes	The support must be necessary to address communication or accessibility needs of the participant arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements.

Circumstances in which application for determination may not be made

(4)  For the purposes of paragraph 10(7)(c) of the NDIS Act, an application for a replacement support determination for one or more supports may not be made if the application would result in the participant making more than one such application for any of those supports:

(a)If the reassessment date of the participant’s plan is less than 12 months after the plan came into effect – while the plan is in effect; or

(b)Otherwise – during any 12-month period starting while the plan is in effect.

…

1. Having regard to s 10 of the Act and the NDIS Supports Transitional Rules, a support will only be in NDIS Support if:

   (i)It does not fall within the scope of an item in Schedule 2,

   (ii)Or, if it does fall within the scope of an item in Schedule 2, the exclusion of the support as a NDIS Support is negatived by:

   -the prescription of the support by the NDIS Supports Transitional Rules for the purposes of paragraph 10(6)(a) of the Act (under Rule 7), and

   -a replacement support determination is made by the CEO pursuant to Rule 7 in relation to the participant specifically on their application,

   and

   (iii)it does fall within the scope of an item in Schedule 1.

2. In this respect, as I have explained in FSWN[8] both Schedules 1 and 2 have work to do in determining if a support is not a NDIS Support.

   [8] FSWN and National Disability Insurance Agency (NDIS) [2025] ARTA 114 at [45]

3. With respect to music therapy, Schedule 2 prescribes various therapies as not being a NDIS Support, including in Items 9 and 10.  Music therapy is not specifically referred to in Schedule 2.  Consequently, whether it is a NDIS Support is determined by reference to Schedule 1, and to Item 34 in that Schedule specifically.

4. Item 34 does not refer to therapeutic supports by specialty.  Rather it requires the support to satisfy the following elements:

   -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,

   -with respect to participants or prospective participants generally.

   (my emphasis)

5. The NDIS Supports Transitional Rules do not define or elaborate upon what is meant by an ‘evidence-base’.  However, the concept of ‘evidence-based practice’ in a clinical context is a relatively familiar one.  It refers to a foundation of socio-scientific ‘proof’ of efficacy and consensus of expert opinion in relation to the efficacy of a treatment intervention.  I note that Rules 3.2 and 3.3 of the Supports for Participants Rules deal, in part, with a similar concept where they require the CEO to consider if a support will be effective and beneficial by reference to available evidence of the effectiveness of the support for others in like circumstances, which may include ‘published and refereed literature’ and ‘expert opinion’.

6. In my opinion the frame of reference for the Item 34 analysis is the efficacy of the support for the designated population groups at large. Unlike the enquiry undertaken under paragraph 34(1)(d) by reference to Rules 3.2 and 3.3 it is not concerned with whether the support will be effective and beneficial for the specific participant.  Rather the enquiry is concerned with the characteristics of the support only and whether it can satisfy the elements of Item 34 to be a NDIS Therapeutic support.

7. In closing submissions, it was put to me by counsel for the Applicant that I was wrong in that conclusion.  That is because, it was submitted, Item 34 refers to “an” evidence base, which may be an evidence base in relation to the efficacy of music therapy for a single participant, such as the Applicant.  In this respect I was referred to reports of a music therapist which provide summaries of outcomes from music therapy sessions conducted with the Applicant in 2019.  It was submitted that those reports indicate developmental gains made by the Applicant in terms of purposeful hand and body movements, vocalisations, non-verbal communication, cognition, and  sensory and emotional regulation.[9]  For present purposes I accept that this evidence is to that effect.

   [9] Summaries of music therapy sessions conducted in 2019 by Ms E Mackney, Hearing Tender Bundle at ST143 – ST148, pages  842 – 861.

8. However, I am not persuaded that Item 34 is concerned with the therapeutic benefit that a particular participant may assert in relation to a requested support, and any evidence peculiar to them that may support that claim.  Rather it is concerned with the evidence base for the therapy by reference to the NDIS participant and prospective participant population group.  The Applicant’s evidence is not irrelevant in this regard, but it falls far short of establishing the efficacy of music therapy on a population group basis.  In this respect I note that there is no meta-analysis or evidence of peer reviewed single publications, or expert evidence, before me that provides an evidence base in relation to music therapy.

9. Having regard to that, the elements of Item 34 have not been satisfied. I therefore conclude on the evidence before me in this case that music therapy is not a therapeutic support that falls within the scope of Item 34.  It therefore is not a NDIS Support and cannot be approved for inclusion in the Applicant’s SOPS.

10. I now turn to consider whether iPads, iPad accessories, communication ‘Apps’, and the repair and maintenance of iPads, are NDIS Supports that are capable of being approved for inclusion in the Applicant’s SOPS.  I proceed on the basis that an iPad is a portable touchscreen computer device which is commonly referred to as a ‘tablet’.  That is, an iPad is both a tablet and a ‘standard computer’ for the purposes of the NDIS Supports Transitional Rules.  I also proceed on the basis that an ‘App’ is a computer software application program.

11. Dealing first with the issue of computer software applications it is to be observed that these are not expressly referred to in Item 4 or elsewhere in Schedule 2.  Paragraph (e) in Item 4 does refer ‘standard… computer accessories’, but in context this refers to hardware not software.  I am satisfied that if Parliament had intended paragraph (e) to include software, paragraph (e) would have stated this explicitly, just as it explicitly refers to ‘games’ and ‘subscriptions for streaming services’. In this respect, I note that the NDIS Act and Rules are beneficial legislation which is to be construed beneficially in accordance with its remedial purpose[10] That beneficial purpose includes giving participants choice and control in the selection of their supports.[11] Consistent with a beneficial approach to construction, exceptions to the overall remedial policy of the legislation are to be read strictly and narrowly.[12] Applying this principle of construction in this case, Schedule 2 is to be read strictly and narrowly because it is concerned with the exclusion of supports from the constellation of supports that may be chosen by participants. A support will not be a NDIS Support by operation of Schedule 2 unless it is expressly identified as being excluded.

    [10] IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J, 39 per Gummow J; see also s 15AA Acts Interpretation Act 1901 (Cth).

    [11] see s 3(e), 4(4), 5(a), 17A(1A), (1) and (2), and 31(b), (g), and (i) of the NDIS Act.

    [12] X v Commonwealth (1999) 200 CLR 177 at 223 per Kirby J;.

12. I therefore conclude that software applications cannot be ‘not a NDIS Support’ by operation of Schedule 2. That is puzzling, because ‘an app used for accessibility or communication purposes’ is expressly referred to in Rule 7 as a support in relation to which a replacement support determination may be made. As I have explained above, Rule 7 is made pursuant to paragraph 10(6)(a) of the Act only. If computer software programs are not expressly excluded by Schedule 2, I cannot see why they would need to be the subject of a replacement support determination. Rule 7 provides a mechanism for converting a support prescribed by Schedule 2 to be not a NDIS Support into a NDIS Support. It does not operate to determine what is not a NDIS Support independently of Schedule 2. The reference to ‘apps’ in Rule 7 therefore has no bearing on the question of whether these are or are not a NDIS Support.

13. Item 11 of Schedule 1 of the NDIS Supports Transitional Rules designates as NDIS Supports in the category of ‘communication and information equipment’, ‘assistive products to support communication.’  It appears to me on a straightforward basis that specialised communication software applications fall within that category of support.   I thus conclude that ‘Apps’ of this character are NDIS Supports that are capable of inclusion in an Applicant’s SOPS.

14. I now turn to consider if an iPad and iPad accessories, such as a case and screen protector, are NDIS Supports.  As I have said above, I am proceeding on the basis that an iPad is both a ‘tablet’ and a ‘computer’ for the purposes of the NDIS Supports Transitional Rules.

15. That being the case, these items are expressly excluded from being NDIS Supports by item 4 of Schedule 2 of the NDIS Supports Transitional Rules, which prescribes ‘tablets’ as well as ‘standard computers’ and ‘standard computer accessories’ as not generally NDIS Supports. 

16. In this respect the concept of ‘standard item’ is defined in Rule 4 of the NDIS Supports Transitional Rules to mean: ‘… an item that is not modified or adapted to address the functional impairments of the participant or prospective participant’.  It is not in issue in this case that the Applicant’s iPad and iPad Mini, which he seeks approval of funding to replace or repair as necessary, are standard items not modified or adapted to meet his specific functional needs.

17. In closing submissions counsel for Applicant argued by reference to the evidence of the Applicant’s speech therapist[13] that he relies principally on his iPads and the specialist software programs installed on them for communication with others.  In this respect, it was submitted that these devices are not ‘dual use’ in the sense that they are also used for other non-functional impairment related purposes, they are only used to ‘give the Applicant a voice in circumstances where he would otherwise have none.’  Having regard to this usage it was submitted that these items should be taken to fall within the scope of item 11 in Schedule 1 of the NDIS Supports Transitional Rules, rather than Item 4 of Schedule 2.

    [13] Ms Kathryn Daniel, Speech Pathologist, Hearing Tender Bundle, Tab T32 and oral evidence.

18. I do understand the importance of the Applicant’s iPad tablets to him as communication devices. 

19. However, as a matter of law, I cannot accept his submissions for two reasons.  First, the prescription of these items in Schedule 2 does not refer to their usage. It is limited to their physical character only.  This prescription thus provides no scope for me to determine that the Applicant’s iPads do not fall within the scope of Item 4 because of the way he uses them or the purpose for which he uses them.  Second, it is a general principle of statutory construction that where two provisions potentially deal with the same subject matter, as Items 4 in Schedule 2 and 11 in Schedule 1 do, a general provision will not derogate from a specific one. In this case, Item 4 specifically refers to tablets and standard computers and accessories.  That specific prescription of these Items therefore cannot be avoided by reliance upon the general provision in Item 11.

20. I therefore conclude that iPads, their accessories, and the repair and maintenance of these items are not NDIS Supports that are capable of being approved for inclusion in the Applicant’s SOPS by a decision made pursuant to s 33(2) of the Act by reference to s 34.

21. Rule 7 does, however, provide a separate mechanism by which the Applicant may apply to the CEO for a replacement support determination, which if successful, would have the effect of converting his iPads into a NDIS Support on the basis that they are necessary to meet his communication and accessibility needs. The Tribunal is not reposed with this power in its function of reviewing a decision made under s 33(2), or otherwise (decisions made pursuant to Rule 7 are not designated reviewable decisions by s 99(1) of the Act or otherwise).

22. For completeness, I note that I was taken to the decision of the Tribunal, differently constituted, in WQSW[14]. In that case, the Tribunal set aside the decision under review and remitted it for reconsideration in accordance with a direction that specified supports, which included funding for the purchase of an iPad, should be approved for inclusion in the Applicant’s SOPS.  That direction arose from a ‘concession’ made by the Agency to the effect that this was a reasonable and necessary support.[15]  The Tribunal’s decision does not include any deliberation or make findings about the operation of the NDIS Supports Transitional Rules in relation to iPads.  I therefore do not find this decision persuasive on this point. 

    [14] WQSW and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2024] ARTA 235

    [15] Ibid at [8]

23. I also note that the Agency in that case conceded that funding for a ‘Proloquo2Go ‘device’ ought to be approved for inclusion in the Applicant’s SOPS and that the Tribunal also remitted the decision with that direction.  On the evidence before me, I understand Proloquo2Go to be an ACC ‘App’, not a device.[16]  It is therefore a software program not captured by Item 4 of Schedule 2, which is capable of being a NDIS Support by operation of Item 11 of Schedule 1 for the reasons I have given above.

    Do the requested supports meet the needs of the Applicant arising from an impairment in relation to which he meets the disability or early intervention requirements?

    [16] World Health Organisation, (2011) International Classification of Functioning, Disability and Health, Geneva, Chapter 1

24. It is not in issue in this case that the Applicant lives with permanent impairments of global and specific mental function,[17] and of neuromusculoskeletal and movement related functions[18] that result in substantially reduced functional capacity in each of the paragraph 24(1)(c) life activity areas and which affect his capacity for social and economic participation.  These are cognitive, intellectual, neurological and physical impairments for the purposes of paragraph 24(1)(a).  He continues to meet the disability requirements for access to the NDIS on these bases.  I make those findings.

    [17] Ibid Chapter 7.

    [18] Ms Daniels report and oral evidence, op cit.

25. The CEO puts in issue two supports requested by the Applicant on the basis that these are not necessary to meet the Applicant’s needs as they arise from his impairments but are rather supports directed at meeting ZNVT(N)’s needs. They are:

    -the request for disability support worker hours, on the basis that the configuration of hours sought by the Applicant, particularly 12 hours at 2:1 intensity at Sunday rates, is for the convenience of ZNVT(N), rather than to meet the needs of the Applicant, and

    -the request for 40 days STA, being 20 days at the Saturday rate and 20 days at the Sunday rate, again on the basis that this is for the convenience of ZNVT(N), rather than to meet the needs of the Applicant.

26. I do not accept the CEO’s submissions.  The question posed by paragraph 34(1)(aa) is whether these supports meet the needs of the Applicant as these arise from an impairment in relation to which he needs that disability requirements.  The Applicant requires disability support worker assistance and STA due to the substantially reduced functional capacity he experiences in all aspects of his life because of his impairments.  He is unable to meet his own subsistence needs, including for shelter, nutrition, hydration, hygiene etc without such assistance.  Although a young adult, the Applicant still relies substantially on the informal support provided by his mother in these areas.  Her capacity to continue to provide this support is dependent upon her having reasonable periodic relief from providing this support.  The fact that she obtains relief from providing the Applicant with support during periods when disability support workers are rostered to provide this support, or during periods when the Applicant is temporarily accommodated elsewhere, does not convert these supports into supports for ZNVT(N) as distinct from the Applicant. He is the beneficiary, including on the basis that such supports sustain his familial relationship with ZNVT(N) and enable her to continue to provide him with affective and instrumental support.

1. Whether the particular configurations of disability support worker assistance and STA the Applicant requests should be approved for funding in his SOPS raise issues in relation to value for money and what it is reasonable to expect ZNVT(N) to provide to him. They are therefore considered against other s 34(1) requirements.  They are not excluded from such consideration by operation of paragraph 34(1)(aa).

   Disability support worker hours: 2:1 ratio

2. The parties reached substantial agreement in relation to the dispute concerning disability support worker hours. The consent order made in partial settlement of the dispute remitted the decision to the CEO with a direction that the CEO approve funding for 140 hours per week of disability support worker assistance in the Applicant’s SoPS as follows:

   a)    The current combined support worker assistance for daily personal activities supports, group activities supports and community access supports in the Current Plan be replaced with:

   a.140 hours per week for 48 weeks per year of support worker assistance, including of 2:1 supports, to be used for daily personal activities supports and community access supports, as follows:

   i.69 hours per week calculated at 1:1 ratio at weekday daytime rates;

   ii.13 hours per week calculated at a 1:1 ratio at Saturday rates;

   iii.13 hours per week calculated at a 1:1: ratio at Sunday rates;

   iv.45 hours per week to make up a ratio of 2:1 support at times and rates to be determined by the Tribunal.  

3. As will appear from the passage in emphasis there remains a dispute between the parties as to the hours per day disability support worker assistance ought to be approved at 2:1 intensity.  In this respect the Applicant contends funding ought to be approved to allow the following roster:

   5:5 hours of 2:1 support Mondays and Wednesdays at daytime rates,

   8.5 hours of 2:1 support Tuesdays at daytime rates,

   4.5 hours of 2.1 support Thursdays and Fridays at daytime rates,

   4.5 hours of 2:1 support Saturdays at Saturday daytime rates,

   12 hours of 2:1 support Sundays at Sunday daytime rates.

4. The Applicant seeks this prescription of hours principally because Saturday and Sunday rates for support worker hours are more expensive than weekday rates, and because he utilises, and seeks to utilise, this support for a longer period on a Sunday than on other days.  A global allocation of hours which did not incorporate hours funded at a Sunday rate would therefore result in a shortfall on other days if available funding was used at the Sunday rate. 

5. The Applicant’s stated reason for seeking 12 hours 2:1 assistance on Sundays is to wholly relieve ZNVT(N) from providing support to him during those hours so that she can focus on his two siblings, one of whom also has significant disability related needs. This includes undertaking individual activities with them outside of the home.  In this respect it is submitted that ZNVT(N) works full-time during the week which limits the time she can spend with her other children.

6. It is not in issue between the parties that the Applicant requires 2:1 assistance for safe transfers in most circumstances.  When 2:1 disability support worker assistance is not available to assist the Applicant with his transfers, ZNVT(N) pairs with a support worker to provide this assistance.  He does not otherwise require 2:1 assistance at all times of the day. I make those findings.

7. In her closing submissions, counsel for the CEO indicated acceptance that 2:1 assistance for transfers was required ‘in the mornings’, ‘in the evenings’, ‘and at other times during the day.’  She was at pains to emphasise that the evidence did not establish that 2:1 assistance during transfers was always required, and she also submitted that the CEO’s agreement (in the context of the consent order) to fund the Turny Evo would eliminate the need for 2:1 transfer into the family motor vehicle in future.

8. As I have set out above, the CEO submitted that the request for approval of 2:1 for 12 hours at Sunday rates should be rejected because it was unrelated to the Applicant’s disability support needs and was merely for ZNVT(N)’s convenience.  It was also submitted that it should not be approved having regard to the need to maintain the financial sustainability of the NDIS.

9. I now turn to consider this request against the remaining requirements of s 34(1).

10. With respect to the paragraph 34(1)(a) requirement I am satisfied that 2:1 support worker assistance will assist the Applicant to pursue his goal of maintaining his current living arrangements and reduce his reliance upon informal supports, being ZNVT(N), as is appropriate to his age.  I make that finding generally with respect to this requested support, and specifically as it relates to the request for 4.5hours 2:1 disability support worker assistance on a Saturday and 12 hours on a Sunday.  The ability of ZNVT(N) to focus on the needs of her other children on weekends is rationally related to the ability of the Applicant to remain part of a functioning, intact family unit in which the needs of each member can be given appropriate attention.

11. With respect to the paragraph 34(1)(b) requirement I am satisfied that this requested support will assist the Applicant to undertake activities to facilitate his social and economic participation.  2:1 support worker assistance will enable him to participate in activities in the community when ZNVT(N) is not present to help with transfers.  The evidence is that his activities currently include conducting a micro business as a ‘secret shopper’ and that he enjoys exercise and recreation in the outdoors.  His ability to be involved in such activities would be limited if he could not safely transfer for toileting (and travel, until the Turny Evo is in place, or if it is unavailable because the car is otherwise in use). I make these findings with respect to this requested support generally, and in relation to the requested funding for Saturday and Sundays specifically.  As noted above, if 2:1 disability support worker assistance was not available at the rates requested on Saturdays and Sundays the Applicant’s participation would be limited by the fact that ZNVT(N) is not available to provide this support at the same level she typically does on other days of the week.

12. With respect to the requirements of paragraph 34(1)(c) and Rule 3.1 of the Supports for Participants Rules, I am satisfied that this requested support constitutes value for money.  This is principally the case because it ensures the Applicant’s safety during transfers.  Without such support there is a serious risk of him being injured.  Although the Applicant does not require 2:1 assistance always, he does require it both at times that can be predicted, such as the morning and evenings, and at other times on an ad hoc basis (for toileting etc).  If ZNVT(N) is unavailable to provide this support when disability support worker assistance is not available, his safety and comfort are at risk.  The support will also enable the Applicant to become more independent of ZNVT(N), which is appropriate given that he is now a young adult. 

13. I do not accept the CEO’s submission that the approval of 12 hours’ disability support worker assistance at a 2:1 ratio on Sundays would not appropriately take account of the need to maintain the financial sustainability of the NDIS.  The Applicant lives at home with ZNVT(N) and his siblings.  Despite the disability support worker hours that are now approved, ZNVT(N) remains substantially responsible for the Applicant’s support, individually when support workers are not rostered or on a shared basis with support workers.  If she was unable to continue in this role there is no issue that the Applicant would require Specialist Disability Accommodation with Supported Independent Living and other supports.  On a commonsense basis the cost of these alternative supports would be significantly higher than the cost of this support requested by the Applicant.

14. With respect to the requirements of paragraph 34(1)(d) and Rules 3.2 and 3.3, I am satisfied that this requested support will be effective and beneficial for the Applicant, essentially for the reasons I have already stated.  It is necessary for his safety, will enable him to function with greater independence from ZNVT(N) as is appropriate given that he is now a young adult, and it will sustain his informal support, being ZNVT(N), in her ability to support him.

15. With respect to the requirements of paragraph 34(1)(f) and Rule 3.4 of the Supports for Participants Rules I am also satisfied that this requested support takes account of what it is reasonable for ZNVT(N) to provide. The Applicant is a young adult. It is appropriate that he move towards greater independence from ZNVT(N) including by being less dependent upon her for his daily support. ZNVT(N) is the mother of 3 children, two of whom have significant impairment and disability. She is also in employment. It is appropriate that I take account the time ZNVT(N) needs to engage on an individualised basis with her other children. I am also satisfied on the evidence that ZNVT(N) also requires regular periods of relief from her role in supporting the Applicant. I accept that she is best able to obtain the benefit of that relief on weekends when she is not working.

16. For completeness, I note that I do not consider the Miscellaneous Provisions Rules to be engaged in relation to this requested support.  No contention was advanced to the contrary of that.

17. For the foregoing reasons the decision under review will be set aside and remitted with a direction that the already agreed hours of 2:1 support worker assistance are to be funded as follows:

    ·28.5 hours at weekday, day time rate,

    ·4.5 hours at the Saturday daytime rate,

    ·12 hours at the Sunday daytime rate.

    Disability support worker hours: allowance of 15 days of 1:1 active overnight disability support worker assistance for periods of illness

18. The Applicant requests approval of funding for 15 days of 1:1 active overnight disability support worker assistance (7pm to 7am) for days when he is ill.  This request emerged while this Application was before the Tribunal for hearing and after the cross-examination of several witnesses.

19. In support of this request, in closing, counsel for the Applicant submitted that the Tribunal could draw an inference from the Applicant’s health conditions that he experienced a higher rate of illness than persons who did not have those health conditions and that evidence had been given by one of the Applicant’s disability support workers about the Applicant’s incontinence and vomiting overnight when ill. It was also submitted that the independent expert engaged by the Agency had agreed during cross-examination that the Applicant’s vomiting during periods of illness was associated with a risk of asphyxiation, and that as a young adult it was appropriate that the Applicant become less dependent upon ZNVT(N) to provide his care during periods of illness.

20. In her closing submissions on behalf of the CEO, counsel for the CEO objected to the request for this support being raised ‘mid-hearing’ after the cross-examination of several witnesses had been completed.  She contended on this basis and more generally that it was a requested support that had not been the subject of evidence.  She also contended that the support was misconceived, if I understood her correctly, because if approved it would result in the Applicant being approved for disability support worker assistance for substantially more hours than there are in the day.

21. I turn to consider the requirements of s 34(1). 

22. With respect to the requirements of paragraphs 34(1)(a), (b) and (f) I am satisfied that funding for this support, if approved, would assist the Applicant to pursue his goal of maintaining his current living arrangements and reduce his reliance upon ZNVT(N) as is appropriate for his age.  It would also take account of what it is reasonable for ZNVT(N) to provide.  Given that the Applicant is now an adult it is not reasonable to expect her to be involved in all aspects of his daily support, including during periods of illness.  I note that the paragraph 34(1)(b) requirement is difficult to apply in the circumstances of this support.  However, to the extent that safe care during periods of illness is consistent with the Applicant’s survival, it will facilitate his continued social and economic participation.

23. The real difficulties for the Applicant in relation to this requested support are the paragraph 34(1)(c) and (d) requirements and their related rules.  With respect, that is because of the relatively disorganised way in which this request emerged during the hearing.  Neither party filed prehearing evidence or submissions focused on this request, and the CEO’s submission that the evidence of several witnesses had been completed before the request crystalised must be accepted.  

24. At a general level I do not resist the proposition that I may infer from the Applicant’s health conditions that he experiences a greater frequency of illness than others of his age, and that given those conditions, there is a life-threatening risk associated with vomiting.  However, that is not sufficient to discharge the Applicant’s onus of establishing that this requested support will be value for money or effective and beneficial. To be so satisfied there would need to be reasonable evidence of the number of days the Applicant is likely to be ill, and in relation to his care needs during periods of illness.  I would need to understand why care at home rather than a medical admission is preferable during such periods.  I would also need a better understanding of how this support integrates with the other supports that are already approved in the Applicant’s SOPS, which includes disability support worker assistance for up to 16 hours per day plus one night-time sleepover support per week.  In the absence of this evidence and explanation I am unable to be positively satisfied, as I must be, as to the value and benefit of this requested support.

25. For the foregoing reasons, I therefore decline to approve this requested support for inclusion in the Applicant’s SOPS.

    Short Term Accommodation  

26. The Applicant requests approval of funding for STA 20 weekends per year, which is 40 days, being 20 days at the Saturday rate and 20 days at the Sunday rate.  This request is premised on the following contentions:

    -The Applicant is busy on weekdays attending his allied health appointments, day program (2 days), and participating in his micro-business, including as a mystery shopper.  He is unable to obtain the benefit of STA during the week in these circumstances, and

    -ZNVT(N) is at significant risk of ‘carer burnout’ due to her day-to-day support of the Applicant. She has two other children, one of whom has significant impairment and disability. Because she is in employment, the only time she can obtain complete relief from her support of the Applicant and focus on the needs of her other children is the weekend.

27. The CEO does not object to funding being approved for STA per se, but argues that 28 days funded in the usual way (that is 20 days at weekday rates, and 7 days each at Saturday and Sunday rates) are appropriate and that anything beyond this is not reasonable and necessary, in part because it would be for ZNVT(N)’s ‘convenience’ rather than for the benefit of the Applicant himself.  Additionally, it is submitted that the Tribunal is obliged by the statute to bear in mind the need to ensure the financial sustainability of the NDIS, and that the approval of STA at a more expensive rate would be inconsistent with that obligation.

28. The CEO also submits:

    -To the extent that it is contended that the Applicant is unavailable to benefit from STA during the week because of ‘medical’ appointments, there is insufficient evidence before the Tribunal as to what those are, and

    -The Applicant’s needs for STA must be considered in the context of his supports overall, which by virtue of the consent decision, now includes substantial daily disability support worker assistance, which is likely to provide ZNVT(N) with substantial relief from her support role.

29. In substance the issues the Tribunal is required to determine in relation to this requested support are:

    -whether the evidence establishes that 40 days STA, as distinct from 28 days STA, is reasonable and necessary, and

    -whether the evidence establishes that STA should be approved for funding on the basis that it will only be utilised on weekends, such that weekend rates only should be approved.

30. With respect to the requirements of paragraph 34(1)(a) I am satisfied that STA will assist the Applicant to pursue his goal of maintaining his current living arrangements and reducing his reliance upon ZNVT(N) for his daily support.  It would achieve this by providing ZNVT(N) with relief from her support responsibility such that her ongoing role in his support is sustainable in terms of her own health and well-being.

31. With respect to the requirements of paragraph 34(1)(b) I am satisfied that STA would also assist the Applicant to undertake activities that would facilitate his social and economic participation.  In this respect it is not controversial that STA, in addition to providing the Applicant with somewhere to stay away from home, would involve the provision of disability support worker assistance to participate in social and recreational activities in the community including as a consumer of goods and services.

32. With respect to the paragraph 34(1)(c) and (d) requirements, I am satisfied that STA constitutes value for money because it is likely to enable the Applicant to remain living in his family home for a longer period with the support of ZNVT(N). Despite the disability support worker hours that are now approved, ZNVT(N) remains substantially responsible for the Applicant’s support.  If she was unable to continue in this role there is no issue that the Applicant would require Specialist Disability Accommodation with Supported Independent Living and other supports due to the severity of his functional impairments.  On a commonsense basis the cost of these alternative supports would be significantly higher than the cost of STA.

33. The real issue is whether the comparable support offered by the Agency, being 28 days STA funded at its standard rate, constitutes better value for money than the Applicant’s specific request.  In this respect I reach the following conclusions:

    -The fact that the Applicant may have allied health appointments, a day program, and employment on weekdays, does not prevent him from utilising STA.  He can attend to these commitments from his STA.  In this respect, STA is not a ‘holiday’ for a participant, it is an alternative support designed to enable the participant to continue to pursue their goals and daily routines, while providing their informal supports with temporary relief,[19]

    -The Applicant’s needs for STA must be considered in the context of his approved supports overall. Whatever may have been the case when this support was first requested, the Applicant now has substantial disability support worker assistance available to him for up to 16 hours per day at 1:1 intensity, with 2:1 intensity for 45 hours per week.  As a result of this decision, 12 hours of support worker assistance will be available to him on Sundays at a ratio of 2:1.  Objectively, this support significantly reduces the demands upon ZNVT(N) for the Applicant’s support and frees her to spend substantially more time meeting her own needs and that of the Applicant’s siblings.

    [19] National Disability Insurance Agency,  Our Guideline – Short Term Accommodation or Respite, 24 June 2023.

34. I acknowledge that it is a fundamental planning principle within the statutory scheme that there be a focus upon the individual needs of the participant and the supports they require.[20] Nevertheless, while that may be a central value, it is not the only relevant policy value. It is an object of the NDIS Act that it involves the development of a nationally consistent approach to the planning and funding of supports for people with disability.[21]  Those making decisions under that Act are also required to have regard to the financial sustainability of the NDIS as I have set out above.

    [20] National Disability Insurance Agency v KKTB, by her litigation representative CVY22 [2022] FCAFC 181 at [26]

    [21] Paragraph 3(1)(f).

1. I therefore now turn to consider the occupational therapy hours that are in dispute.  There are two aspects to this, being:

   -whether weekly or fortnightly direct therapy sessions are reasonable and necessary, and

   -whether 2hour direct sessions are reasonable and necessary.

2. The Applicant’s proposal for direct occupational therapy support is based on a recommendation made by Ms Victoria Lord, Occupational Therapist, in a report dated 13 February 2022.[26]  Ms Lord provided occupational therapy support to the Applicant while he was living in another place, prior to his move to his current residence.  She has not seen the Applicant since early 2023.  However, she was called to give evidence and reiterated her recommendation.

   [26] Hearing Tender Bundle, Tab T6.

3. The Applicant’s proposal for direct occupation therapy support is supported by Ms Sally Lloyd, Occupational Therapist, who conducted a functional capacity assessment of the Applicant on 1 September 2023 at his current home.[27] Her report adopts Ms Lord’s recommendation without further explanation or justification of it.  Ms Lord was called to give oral evidence and in doing so continued in her support of this recommendation.

   [27] Hearing Tender Bundle, Tab T46.

4. The Agency engaged Ms Vicki Ruskin, Occupational Therapist, to provide an independent medical opinion in relation to the Applicant’s needs for occupational therapy support.  It was originally envisaged that Ms Ruskin would carry out an independent functional capacity assessment of the Applicant, however, ZNVT(N) refused to agree to this.  Consequently, Ms Ruskin’s review was conducted as a file review. 

5. Ms Ruskin produced two reports in response to her brief.[28]  Relevantly, for present purposes, in her first report, Ms Ruskin recommended the continuation of what she assumed (wrongly) to be the Applicant’s then current level of occupational therapy support, which was the 120 hours (including 1 2hour session for 25 weeks) recommended by Ms Lord.  In her supplementary report, Ms Ruskin dissented from that position, revising her opinion to recommend 24 1hour sessions of direct occupational therapy per year, to be provided on a fortnightly basis.  She gave oral evidence consistent with this revised opinion.

   [28] Hearing Tender Bundle, Tab G1 and as later filed.

6. Having regard to the above, the Tribunal is left in the unsatisfactory position where the Applicant’s principal witness has not assessed him since he was 15 and a mid-adolescent in circumstances where he is now a young adult, and the independent expert the CEO has engaged has not directly assessed the Applicant and has formulated her opinion largely based upon historical reports, which at least initially, she did not fully understand.

7. Some further observations should be made about the state of the evidence:

   -it was contended by the Applicant that greater intensity occupational therapy support was reasonable and necessary because he received regular Botox injections and used hand splints to maintain hand function. That proposition was put in submissions rather than being the subject of any direct evidence.  No reference to this is made in the reports of Ms Lord or Ms Lloyd.  On the state of the evidence, I do not know why this makes a difference,

   -It was contended by the CEO that fortnightly direct occupational therapy sessions would be sufficient because the clinician would develop exercise routines that could be implemented by the Applicant’s non-specialist support workers.  However, that submission also lacked an evidentiary foundation because Ms Ruskin did not have the opportunity to undertake a direct assessment of the Applicant where the feasibility of this could be ascertained,

   -It was contended that 2hour sessions were required not because 2hours of direct therapy was appropriate, but because it was assumed that it would take a 2hour time slot in which to effectively deliver 45-60 minutes of direct therapy due to the Applicant’s emotional dysregulation and seizure activity. This was in a context where the Applicant’ current physiotherapist, Mr Hughes, had given evidence that he was able to conduct successful 45minute direct therapy sessions with the Applicant without significant difficulties related to seizure activity or emotional regulation.

8. Dealing first with the issue of whether 2hour occupational therapy sessions are reasonable and necessary, the contemporary evidence of Mr Hughes that the Applicant can participate in 45minute physiotherapy sessions without any real difficulty is persuasive.   Ms Lord’s evidence relates to the Applicant’s mid-adolescence.  He is now a young adult.  Mr Hugh’s evidence was to the effect that the Applicant is maturing and is better able to manage his emotions than he may have been able to previously.  I accept that evidence. 

9. It was said against this in the Applicant’s closing submissions that the Applicant’s ability to self-regulate in physiotherapy sessions which were focused on gross motor function of the lower limbs could not be usefully compared with his ability to do so in occupational therapy sessions focused on fine motor skills, particularly of the upper limbs and hands. I do not accept that submission.  The issue is the Applicant’s ability to self-regulate during an allied health appointment with a clinician. I see no difference in the specialty in this regard.

10. What that leaves in issue is whether weekly or fortnightly sessions are appropriate. On the state of the evidence, I cannot see that weekly direct therapy sessions are reasonable and necessary.  The evidence simply does not explain in any persuasive way why weekly sessions would be more beneficial than fortnightly sessions in terms of assisting the Applicant to maintain function.  On any view, fortnightly direct occupational therapy sessions constitute substantial support for a support of this nature.

11. Having regard to the matters set out above:

    -with respect to the paragraph 34(1)(a) requirement, I am satisfied that 24 1hour fortnightly occupational therapy sessions will assist the Applicant to pursue his goal of maintaining as much independence as possible for as long as possible.  I am unable to see on the evidence before me how 45 weekly sessions would achieve any greater benefit in this regard,

    -with respect to the paragraph 34(1)(b) requirement, I am satisfied that 24 1 hour fortnightly occupational therapy sessions will assist the Applicant to maintain motor function, which will facilitate his social and economic participation.  On the evidence before me I am unable to see how 45 weekly sessions would result in any greater benefit,

    -with respect to the paragraph 34(1)(c) and (d) requirements, and Rules 3.1 to 3.3 of the Supports for Participants Rules, I am satisfied that 24 1hour sessions of occupational therapy constitutes value and is effective and beneficial on the basis that it is likely to improve the life stage outcomes for the Applicant by maintaining his motor function.  On the evidence before me I am unable to see how 45 weekly sessions would result in any greater benefit.

    -with respect to the paragraph 34(1)(e) requirement, and Rule 3.4 of the Supports for Participants Rules I am satisfied that the funding of this support takes account of what it is reasonable to expect ZNVT(N) and the Applicant’s other informal supports and the community to provide.  As I have stated above, occupational therapy is an allied health specialty that involves specialist training, knowledge and skill.  It is not reasonable to expect this support to be provided by ZNVT(N) or other informal supports, or the community generally

12. For completeness, I note that I do not consider that the Miscellaneous Supports Rules are engaged in relation to this support.  No contention was made to the contrary of this.

13. For the foregoing reasons I am satisfied that 24 hours of occupational therapy to be delivered in approximately fortnightly 1hour direct therapy sessions (and allowing for a 4week holiday period), and 30 additional hours occupation therapy support for functional capacity assessment in the context of motor vehicle and home modifications is a reasonable and necessary support that ought to be included in the Applicant’s SOPS. I will remit the decision under review to the CEO for her reconsideration with that direction.

    Funding for complex home modifications, including ceiling hoist

14. The Applicant requests approval of funding for complex home modifications which involve modifications to his bedroom (bedroom 3), the main bathroom, the adjoining laundry and the installation of a ceiling hoist and track between the bedroom and bathroom.  This modification is sought to be in conformity with a scope of works prepared by Mr Sean Daly, Occupational Therapist, dated 5 December 2023,[29] builders’ quotations for the completion of these works dated February 2025 ($100,980.00 and $82,500.00), and a quotation for the supply and installation of a ceiling hoist and tracking dated 17 February 2025 ($19,142.00).

    [29] Hearing Tender Bundle, Tab ST116; see also Tab T57.

15. These modifications are contended to be necessary because the main bathroom is currently unsafe for the Applicant’s use.  This is because the shower recess is too small to accommodate a disability worker and the Applicant using his commode safely.  The Applicant is also obliged to use a shower chair for showering which is not suitable for his needs because his commode won’t fit through the door.  Even if the shower casing was to be removed to provide more room, the shower has a prominent hub which would still prevent the use of the commode.  Additionally, due to the confined space within the bathroom the portable hoist cannot be used for transfers.  This requires 2:1 support to assist the Applicant in and out of the shower.  This is a significant manual handling risk for the Applicant and his support workers, particularly because of the Applicant’s dystonic movements. This risk is exacerbated by the fact that the bathroom floor tiles are not non-slip tiles.  The evidence is that both the Applicant and his support staff have been injured in the bathroom while he is being provided with personal care.  I do not understand there to be any challenge as to the seriously unsatisfactory nature of the current arrangements for the Applicant’s personal care.

16. The CEO opposes the funding of this support on multiple grounds, which are:

    -The Agency has already funded complex home modifications in respect of the Applicant at another location.  This home is in another State to the State he is now living in, but it is asserted that this home remains available for his occupation,

    -ZNVT(N) ‘chose’ to move into a sub-optimally accessible property, being the current family home, in circumstances where funding for complex home modifications had already been provided at the other location, without consulting the Agency first, as is required by its complex home modifications operational policy,

    -ZNVT(N) is deriving income from the modified former home including by letting it for STA for NDIS participants,

    -with respect to the ceiling hoist issue, the Applicant already has a portable hoist that is sufficient to support his transfers from bed to his mobility devices and from his bedroom to the main bathroom.  The use of the portable hoist would be enhanced if ZNVT(N) removed the carpet from his bedroom, and agreed to mechanical or physical restraints to control his limb movements during transfers,

    -with respect to the bedroom/bathroom modification, there are other likely less expensive options to the home modifications proposed by the Applicant, which are the modification of the master bedroom and its ensuite (currently occupied by ZNVT(N)), or bedroom 4 (occupied by a sibling) and the main bathroom.

17. Before turning to the requested modifications themselves I will deal with the CEO’s broader objections to the funding of this support.

18. With respect to the contention that the Applicant already has a modified home in another place that he can utilise, ZNVT(N)’s evidence is that she was obliged to move her family from that location due to it being in a flood prone area and following a period of inundation during which the Applicant was cut off from needed supports.

19. In any event, whether or not that evidence is accepted as a reasonable explanation, the fact is that ZNVT(N) has relocated her family to another place and has rented her former property to others.  The Applicant was a child, in the care and under the control of ZNVT(N), when that occurred.  He is now a young adult, but even with the supports now funded, he relies substantially on ZNVT(N)’s support for his subsistence and emotional well-being.  He cannot move back to his former dwelling because it is not available to him (it is his mother’s property, and she has let it) and even it was, he could not move there unless ZNVT(N) was also prepared to move.  Having regard to this, I consider this objection rhetorical rather than one which leads to any practical alternative to the Applicant’s current unsatisfactory circumstances.

20. It may be accepted that the Applicant has moved into a sub-optimally accessible property in his present location.  But that was a ‘choice’ made by ZNVT(N), not the Applicant himself for the reasons I have stated.  The degree to which it was a choice for ZNVT(N) also requires critical examination. There is no evidence that she had properties which were fully accessible to the Applicant available for purchase at the time she made this purchase. It is a practical reality that most existing housing stock in Australia is not accessible housing.

21. To the extent that ZNVT(N) did not consult the Agency about her purchase of this property before doing so, that is not a matter that can be sheeted home to the Applicant.  He was a child under the care and control of ZNVT(N) when this occurred.  Reasonable and necessary support cannot be withheld from him now because of ZNVT(N)’s non-observance of Agency operational policy when he was a child, if that is what occurred.  That would be to act punitively towards the Applicant in relation to a matter over which he had no control.

22. The same point may be made in relation to the CEO’s assertion that ZNVT(N) is deriving income from the already modified property, including by renting it for STA for NDIS participants.  If that is occurring, it is not something that can be sheeted home to the Applicant. Reasonable and necessary supports cannot be withheld from him because of ZNVT(N)’s conduct. 

23. In any event, the CEO has led no evidence to prove this allegation, and ZNVT(N) denies that she is profiting from the home modifications that have been previously funded by the Agency in the way contended by the CEO.

24. In the context of these concerns, I did raise with the parties the question of whether it would be appropriate to consider Specialist Disability Accommodation and Supported Independent Living supports for the Applicant as an alternative to home modifications, as this would enable him to put down his own roots independently of ZNVT(N).  That proposal did not receive support. 

25. I was informed that it was the Applicant’s and ZNVT’s expressed intention that they would continue to live together as a family for the known future.  I accept that this is a clearly expressed NDIS goal for the Applicant. I also accept that although the Applicant is now a young adult, he has only just turned 18, and it is now typical for young adults to continue to live with their parents until they are in their mid-20s.  I also note from a value for money perspective that the total cost of the home modifications sought here, although significant, pales against the projected cost of Specialist Disability Accommodation over a 6-year period from now until he is 24.[30]

    [30] National Disability Insurance Agency, Pricing Arrangements for Specialist Disability Accommodation 2025-26, 30 June 2025

26. I now turn to consider the alternative home modification options the CEO contends for.  It is relevant to consider that these proposed modifications entered play at the CEO’s urging, they have never been proposed by the Applicant or ZNVT(N) or those experts they relied upon when formulating the Applicant’s proposal. The CEO pursued these alternatives for essentially two reasons: asserted inadequacies in the scope of works and costings in the Applicant’s proposal, and because it was asserted that they would be cheaper options to that proposed by the Applicant.

27. As I have noted above, at the end of the October hearing days, the parties were hopeful of reaching some common ground on a home modification proposal.  As I understood it at the time, this was to have involved the CEO engaging an independent expert to conduct a home modification assessment and develop a revised scope of works as necessary.  As that was likely to take some time to complete, I allowed a long adjournment to the February 2025 hearing days so that any proposal arising from this work would be available for the resumed hearing. 

28. Very disappointingly that work did not proceed.  I have in evidence before me repeated correspondence from the Applicant’s solicitors to the CEO’s solicitors after the October hearings up to up Christmas which sought to advance this initiative to which no response was given.  Then the CEO’s solicitors wrote to the Applicant’s solicitors proposing a functional capacity assessment of the Applicant, which ZNVT(N) refused. 

29. Much was attempted to be made of that refusal by counsel for the CEO during ZNVT(N)’s cross examination and in submissions.  The thrust of these questions and submissions was that it was ZNVT(N) who had obstructed an independent home modification assessment.  However, having carefully reviewed the correspondence that passed between the parties I am satisfied that the shoe is on the other foot.  It was the CEO who frustrated this initiative by failing, in plain terms, to fulfil her offer to engage an independent expert to conduct a home modification assessment. 

30. The upshot of the above is that the evidence in relation to the ‘options’ for home modification did not advance in any substantial way between the October 2024 and February 2025 hearings, save that the Applicant filed further evidence in February 2025 about the cost of the 3 options for modification that the parties contended for.  I am therefore left to do what I can on the evidence before me.

31. Having regard to that I return to first principles, which are:

    -the Applicant currently cannot undertake personal care safely.  He, and those engaged in his personal care, face a daily risk of injury.  That considered, any further delay in the provision of support that will overcome this risk is to be avoided as far as possible,

    -the NDIS statutory scheme places a major emphasis on participant choice and control in the selection of reasonable and necessary supports, and upon the individualisation of those supports.  The Tribunal is obliged to give effect to these principles, unless there is a statutory basis for not doing so.[31]  The support requested by the Applicant, no doubt with the support of ZNVT(N), is the modification of his bedroom and the main bathroom.  He has not requested the modification of his sibling’s bedroom and the main bathroom, or the master bedroom and its ensuite.  His ‘choice and control’ in the selection of his support should be given significant weight,

    -a primary (but not the only) statutory constraint on the exercise of the Applicant’s choice and control in the selection of his supports is the financial sustainability of the NDIS which is considered though the lens of the paragraph 34(1)(c) requirement and associated Rule 3.1 of the Supports for Participants Rules. That is, that the support must be ‘value for money’. In this case the CEO has sought to contend that there are other options to home modification, and cheaper home modification options that would achieve the same outcome in relation to the Applicant’s safe personal care.  I will deal with the first proposition in due course. 

    The latter proposition is simply not made out on the evidence.  The quotations the Applicant obtained for the modification of bedroom 4 and the main bathroom, and for the modification of the master bedroom and its ensuite are more expensive than the quotation he has obtained for the modification of his bedroom and the main bathroom.  The CEO indicated a range of difficulties with this evidence in cross-examination and in submissions, but these criticisms turned on speculation from the Bar table about whether it would be necessary to alter the fall in the ensuite, replace water proofing, and create additional space for turning, among other matters. 

    The CEO has not put forward on any straightforward basis an alternative home modification proposal prepared by a person with suitable qualifications to do so that is less costly than the proposal contended for by the Applicant. 

    While it is the Applicant who bears the practical onus of establishing that his requested support is reasonable and necessary, if that is challenged, it falls to the CEO to establish a proper basis for that challenge by reference to evidence. 

    In this respect this is an administrative review proceeding being undertaken in the context of beneficial legislation where the contest relates to reasonable and necessary supports required for the Applicant’s safe personal care, where there is no contest that his present circumstances are unsafe. Having regard to this it is not enough for the CEO to simply seek to tear down the Applicant’s case. If there is better value for money in another option, that must be put forward on a robust evidentiary and not merely speculative basis. 

    [31] National Disability Insurance Agency v KKTB, by her litigation representative CVY22 [2022] FCAFC 181 at [26]

1. One strand of the CEO’s contentions against home modifications, or for more limited home modifications concerns the use of the Applicant’s portable hoist for transfers.  It is contended that this hoist can be used to transfer him into a commode for transport to the bathroom and that a ceiling hoist is unnecessary. It is contended that the portable hoist could be better utilised if the Applicant removes the carpet in his room, and if the Applicant would permit his limbs to be restrained during transport to limit his dystonic movement. 

2. I do not accept this submission for the following reasons:

   -the weight of expert occupational therapist evidence (Mr Daley, Ms Lord, Ms Lloyd and Ms Ruskin) favours a ceiling hoist as less likely to result in injury to the Applicant and his support workers than the portable hoist,

   -the Applicant’s bedroom is not large enough to accommodate the portable hoist alongside his bed, chest of drawers and other necessary assistive equipment.  The Applicant cannot undertake safe transfers in a crowded room,

   -the Applicant’s bedroom is carpeted for his comfort. He recreates on the floor and the soft carpet surface presents a lesser risk of injury than a hard floor surface. Attempting to move the portable hoist across carpet when it is transporting the Applicant presents an additional risk of occupational injury for his support staff because its underlay and pile produce greater resistance.  One possible response to this risk is the removal of the carpet and the use of a mat.  However, I accept the Applicant’s submission that a hard floor surface would reduce the amenity of his room for recreation, and that the use of a mat as a substitute would create additional work for his support team, a difficulty with storage, and a potential trip and tip hazard for support workers when moving the Applicant in his assistive equipment.

   -The portable hoist does not fit in the main bathroom,

   -Limiting the movement of the Applicant’s limbs while being transported in the portable hoist would amount to a restrictive practice, being mechanical or physical restraint.  The Applicant has not been the subject of restrictive practices in the past, and he has no Behaviour Support Plan or Specialist Behaviour Support Practitioner in place which would permit this. More fundamentally, in my opinion it is not reasonable to institute a restrictive practice to deal with the consequences of the Applicant’s inaccessible environment, where environmental modifications are feasible,

   -Moreover, if the Applicant’s limbs are restrained it is more difficult for him to receive personal care.

3. Another strand of the CEO opposition to the Applicant’s home modification proposal concerned the ceiling tracking from the Applicant’s bedroom to the main bathroom.  It was contended that if a ceiling hoist was approved it should be limited to an XY ceiling hoist in the Applicant’s bedroom, and not involve tracking to the bathroom.  As I understand it this submission was made primarily on the basis that the additional expense of the tracking was not reasonable and necessary.  I have given this issue close consideration. 

4. Firstly, I note that I have no evidence before me as to the cost differential between the ceiling hoist alone and the ceiling hoist with tracking.  I simply do not know how much more expensive the tracking is.  However, in terms of benefit to the Applicant, a primary consideration is that the tracking would enable him to be transported over the carpet in his bedroom.  A bedroom ceiling hoist alone could only be utilised to transfer the Applicant into and out of a mobility device that would then need to be manoeuvred across carpet, with its attendant manual handling risks I have identified above.  Removal of the carpet would overcome this, but as I have noted above, this would reduce the amenity of the Applicant’s bedroom and create its own difficulties.

5. Finally by way of general comments I note that the CEO has sought to impugn the scope of works proposed by the Applicant for the home modifications he contends for, and the quotations that are in evidence in relation that work on various detailed bases.  It is submitted that I could not be positively satisfied that the support is reasonable and necessary unless and until the issues raised in each line of attack are resolved. 

6. I do not accept that the Tribunal’s task is as granulated as the CEO contends.  The Applicant bears the practical onus of identifying a ‘support’ which is reasonable and necessary which in this case are home modifications that will enable his safe personal care.  The ‘support’ must be identified with sufficient specificity that the relevant decision-maker can approve ‘funding’ or a funding amount in relation to that support: paragraph 33(2)(b).

7. In this case I have a scope of works prepared by an Occupational Therapist, Mr Daley, who specialises in home modifications of this kind.  I also have quotations for the work prepared by 2 builders.  Those quotations not only have forensic usefulness for assessing whether the works constitute value for money, they also attest to the viability of the scope of works Mr Daley has prepared.  That is, 2 builders have been able to review that scope of work and develop detailed costings for its implementation.  It is therefore a viable scope of works.  I cannot see why the Tribunal needs to know more than that in circumstances where it is satisfied that the ‘support’ is reasonable and necessary.  Detailed implementation issues are for Mr Daley and the selected builder to work though.

8. Against this background, I now turn to specifically address the s 34(1) requirements.

9. With respect to the paragraph 34(1)(a) requirement I am satisfied this support would enable the Applicant to pursue his goals.  In particular, it would enable him to realise his goal of living in a safe environment where his house is modified and adapted to suit his disability.

10. With respect to the paragraph 34(1)(b) requirement I am satisfied that a home environment which provides for the Applicant’s safe personal care is a precondition to his social and economic participation.  He cannot undertake activities that would facilitate this if he were injured because of the inaccessibility of his living arrangements.

11. With respect to the paragraph 34(1)(c) requirement, including by reference to Rule 3.1, I am satisfied that the support represents value for money.  It is reasonable and necessary for the Applicant’s safe personal care.  He and his support workers are at risk of injury in the absence of this support.  The CEO has not established that the use of the portable hoist is a reasonable alternative to the ceiling hoist for the reasons I have stated above.  Nor has the CEO established that there are other home modifications that could be carried out which would lead to the same outcome as the requested support at a lesser cost.

12. With respect to the paragraph 34(1)(d) requirement, including by reference to Rules 3.2 to 3.3 of the Supports for Participants Rules, I am satisfied that the requested support is effective and beneficial for the Applicant.  It is necessary for his safe personal care.  In coming to the view that this support is reasonable and necessary I have considered the expert evidence that its before me which is to the effect that the support represents contemporary good practice, as well as the Applicant’s and ZNVT(N)’s lived experience.

13. With respect to the paragraph 34(1)(e) requirement, including by reference to Rule 3.4 I am satisfied that the approval of this support takes account of what it is reasonable to expect ZNVT(N) and others to provide.  It is not reasonable to expect a parent to fund the costs of complex home modifications required by an adult child with whom they live.  The CEO has not established that the modification of ZNVT(N)’s master bedroom and ensuite would achieve the same outcome as the Applicant’s requested support at a lesser cost, but even if she had done so, I am unlikely to have been satisfied that it is reasonable for ZNVT(N) as a mature adult and ‘head’ of the family to give up her larger bedroom and private bathroom for a young adult child.

14. For completeness, I note that I do not consider the Miscellaneous Provisions Rules to be engaged in the circumstances of this case.  To contention was made to the contrary of this.

15. For the foregoing reasons I will remit the decision under review to the CEO for reconsideration with a direction that the home modifications contained in the scope of works prepared by Mr Daly dated 5 December 2023 constitute a reasonable and necessary support that is to be approved for inclusion in the Applicant’s SOPS.  The approved funding amount may require the refreshing of the builder quotations for this work.

    The reassessment date

16. The remaining issue for determination is the plan reassessment date.  The CEO contends that a reassessment date should be set 6 months from the date of this decision.  That submission is made against a backdrop, it is contended, of rapid plan depletion requiring unscheduled replenishment of plan funding.   The Applicant contends that the reassessment date should be set 12 months from the date of this decision to enable the Applicant’s revised SOPS to undergo a reasonable implementation period before review.

17. I have determined that the reassessment date should be set 12 months from the date of my decision.  12 months is a relatively short period of time but will still allow for the approved supports to have a reasonable opportunity for implementation.  An earlier reassessment date would occur in circumstances where there had been insufficient opportunity for these supports to be utilised and their benefit evaluated.  I consider it unlikely that a short reassessment period would be meaningful for that reason. 

18. Should the Applicant continue to engage in overutilisation of his supports, despite the substantial uplift in their quantum he has obtained in these proceedings by consent and because of my decision, it remains open to the CEO to initiate an unscheduled plan reassessment pursuant to s 48 of the Act.

    Orders

19. For the foregoing reasons, I order:

    (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 2025 is dismissed on the basis that it is now lacking in substance.

Date(s) of hearing:	21, 22 and 23 October 2024, 17, 18 and 19 February 2025,  31 March 2025, 3 April 2025.
Counsel for the Applicant:	Dr William Phillips
Solicitors for the Applicant:	Mr Peter Andreakos, Russell Kennedy Solicitors
Counsel for the Respondent:	Ms Natalie Blok
Solicitors for the Respondent:	Mr Jack Watts, Maddocks Lawyers