Zohiab and National Disability Insurance Agency (NDIS)

[2025] ARTA 984

Zohiab and National Disability Insurance Agency (NDIS) [2025] ARTA 984 (8 July 2025)

Applicant/s:  Mohammed Zohiab

Respondent:  National Disability Insurance Agency

Tribunal Number:                2023/6056

Tribunal:General Member S. Smith

Place:Brisbane

Date:8 July 2025

Decision:Pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is affirmed.

…............[SGD]................

General Member S Smith

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – support worker assistance – section 34 National Disability Insurance Scheme Act 2013 (Cth) – Specialist Disability Accommodation – whether Applicant is eligible for SDA – SDA needs requirements – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

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

National Disability Insurance Scheme Act 2013 (Cth)

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

National Disability Insurance Scheme (Becoming a Participant) Rules - 2016, Access Rules

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

National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth) – Rules 5, 11, 12, 13, 14, 15, 16, 17, 18

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)

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

Cases

Beezley v Repatriation Commission (2015) FCAFC 165

Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250; QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189

G v Minister for Immigration and Border Protection [2018] FCA 1229

Keys and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 269

McGarrigle v National Disability Insurance Agency [2017] FCA 308

NDIA v KKTB, by her litigation representative CVY22 [2022] FCAFC 181

National Disability Insurance Agency v WRMF [2020] FCAFC 79

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60

XYZ v Commonwealth [2006] HCA25; (2006) 227 CLR 532

Minister for Home AffairsvG [2019] FCAFC 79

Secondary Materials

NDIS – Operational Guidelines – Reasonable and necessary supports, 22 September 2024

NDIS Operational Guidelines – Specialist Disability Accommodation, 7 April 2025

Statement of Reasons

1. Mr Mohammed Zohiab, a 33-year-old man, is a participant of the National Disability Insurance Scheme (the scheme) and he lives with his wife, Ms Archana Thapa Magar (Ms Magar) in Queensland.

2. Mr Zohiab became a participant in the scheme on the basis of meeting the access requirements due to psycho-social impairments as a consequence of Post Traumatic Stress Disorder (PTSD) and sensory impairments due to hearing loss.[1]

   [1] EB-1, page 363.

3. On 3 May 2023 the National Disability Insurance Agency (the Agency) approved a statement of participant supports (SOPS) for Mr Zohiab.[2]

   [2] EB-2, page 12.

4. Mr Zohiab was dissatisfied with this decision, and he requested an internal review by the Agency. On 21 July 2023 the Agency confirmed its decision (the decision under review).[3]

   [3] EB-2, page 12. This decision concerned SDA and access for ‘physical impairments.’ Prior to the hearing Mr Zohiab requested ‘additional support worker hours.’

5. On 10 August 2023, Mr Zohiab applied to the Administrative Appeals Tribunal (AAT) [4] for a review of the Agency’s decision.

   [4] EB-2, pages 7-10.

6. From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

7. Mr Zohiab was self-represented during the hearing held on Microsoft Teams on 27, 29 and 30 May 2025. Ms Magar attended as his support person. Mr Zohiab did not call any witnesses. The Agency was represented by Mr Freeburn of Counsel, instructed by Moray & Agnew Lawyers. The Agency called two witnesses, Ms Anna Nicholls, occupational therapist, and Dr Luke Hatzipetrou, clinical psychologist.

   ISSUES

8. The Tribunal will consider three issues.

9. Firstly, Mr Zohiab contends he meets the statutory criteria for access to the scheme for physical disabilities due to:[5]

   ·Lumbar spondylosis, ‘lower back pain’;

   ·Cervical spondylosis, ‘neck pain’;

   ·Bilateral infrapatellar bursitis, ‘inflammation in the knees’;

   ·Bilateral Hoffa's syndrome, ‘pain around the knees’;

   ·Bilateral sacroiliac joint degeneration, ‘pain around the spine and pelvis’; and

   ·Bilateral hip gluteal tendinopathy,[6] ‘hip pain’ (the physical conditions).

   [5] Oral evidence of Mr Zohiab.

   [6] EB-1, page 184. EB-2, page 17.

10. The Agency contends that Mr Zohiab’s physical conditions do not result in any impairments that satisfy section 24 or section 25 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).

11. Secondly, Mr Zohiab requests additional funding in his SOPS for increased support worker hours. In his 4 April 2025 submissions, Mr Zohiab stated he receives approximately ‘9.4 hours of paid support over 52 weeks’.[7] At the hearing there was conflicting evidence about the exact number of hours that Mr Zohiab is currently funded for support worker assistance each week. Mr Zohiab requests 52 hours of support worker funding each week to include:[8]

    ·8 hours per day on weekdays;

    ·6 hours per day on Saturdays;

    ·6 hours per day on Sundays.

    [7] EB-1, A18, page 214.

    [8] EB-1, page 86. Pages 100-103. Request made on 24 October 2023.

12. The Agency contends that 52 hours of support worker assistance each week is not a ‘reasonable and necessary support’ for Mr Zohiab pursuant to section 34(1) of the NDIS Act. In closing submissions, the Agency contended that 35 hours per week was reasonable and necessary for Mr Zohiab and that this funding can be ‘flexibly used in Mr Zohiab’s SOPS.’[9]

    [9] Closing submissions of Agency.

13. Thirdly, Mr Zohiab contends he is eligible for Specialist Disability Accommodation (SDA) and that it is a reasonable and necessary support for Mr Zohiab pursuant to section 34(1) of the NDIS Act.

14. SDA is defined as follows:[10]

    accommodation for a person who requires specialist housing solutions, including to assist with the delivery of supports that cater for the person’s extreme functional impairment or very high support needs.

    [10] National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth) r 5.

15. The issues before the Tribunal regarding SDA are as follows:

    ·Firstly, whether Mr Zohiab is ‘eligible’ for SDA under rule 11 of the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth) (SDA Rules);

    ·Secondly, on the basis that Mr Zohiab is ‘eligible,’ whether SDA is a ‘reasonable and necessary support’ for Mr Zohiab under section 34 of the NDIS Act; and

    ·     Thirdly, on the basis that Mr Zohiab is ‘eligible’ for SDA, and it is also a ‘reasonable and necessary support’ for him, whether the following features of SDA are most appropriate for what Mr Zohiab seeks under Rule 15 of the SDA Rules which is:

    oBuilding Type[11]: a three-bedroom separate dwelling;[12]

    oDesign Category:[13] Accessible, sensory-needs-conscious robust design with smart technology supports[14] and ‘reinforced soundproofed walls.’[15]

    oLocation:[16] In ‘Ipswich or Toowoomba.’[17]

    [11] Section 15 and 16 SDA Rules.

    [12] EB-1, pages 85-88. Oral evidence of Mr Zohiab relies on Ms Patterson’s recommendations.

    [13] Section 17 SDA Rules.

    [14] EB-1, page 84.

    [15] EB-2, page 33.

    [16] Section 18 SDA Rules.

    [17] Oral evidence of Mr Zohiab.

16. The Agency contends that Mr Zohiab is not eligible for SDA pursuant to the SDA Rules and that it is not a reasonable and necessary support for him pursuant to the statutory scheme.

17. The Agency further contends that home modifications are all that are required in order to meet the disability needs requirements of Mr Zohiab at this present point in time.

18. The Tribunal must make the correct or preferable decision based on the material before it[18] regarding whether the requested supports are:

    ·Reasonable and necessary supports under sections 33 and 34 of the NDIS Act; and

    ·Capable of being funded by the scheme in order to be included in Mr Zohiab’s SOPS.

    THE LEGAL FRAMEWORK

    [18] Frugtniet v Australian Securities and Investment Commission [2019] HCA 16; (2019) 266 CLR 250 at [51]; QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 [7].

    National Disability Insurance Scheme Act 2013 (Cth)

19. The general principles and guiding actions taken under the NDIS Act are set out in section 4 and the objectives are stated in section 3. In particular, section 3(1)(c) and (g) state that the objectives of the NDIS Act are to support the independence and social and economic participation of people with disability and to enable people with disability to maximise independent lifestyles and full inclusion in the community. Additionally, in giving effect to these objectives, regard is to be had to the need to ensure the financial sustainability of the scheme.[19]

    [19] See section 3(3)(b) of the National Disability Insurance Scheme Act 2013 (Cth) (‘the NDIS Act’).

20. Mr Zohiab’s plan must include a SOPS, that is approved in accordance with section 33 and relevant rules made under the NDIS Act.

21. Section 34 of the NDIS Act identifies what constitutes a ‘reasonable and necessary’ support under the scheme.

22. At the time of Mr Zohiab’s application to the AAT, section 34 of the NDIS Act provided as follows:

    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:

    (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 most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

    (i)        as part of a universal service obligation; or

    (ii)       in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

    (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)(a) to (f).

23. On 3 October 2024, and prior to the completion of this review, the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (the Amending Act) made a range of ‘amendments’ to the NDIS Act.

24. These amendments in respect of the requirements of section 34 of the NDIS Act will apply to this review.[20]

    [20] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth) s 129.

25. Section 34 of the NDIS Act, as amended, now provides as follows (underlined emphasis of the amendments added by the Tribunal):

    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 section 24) or the early intervention requirements (see section 25);

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

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

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

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

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

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

    Note: For the purposes of paragraph (aa):

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

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

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

26. Subsection 34(1) of the NDIS Act is cumulative and therefore all of the criteria must be met. Moreover, the Tribunal must be positively satisfied about each criterion and the Applicant has a ‘common sense onus to adduce sufficient evidence to satisfy the Tribunal that the criteria are met.[21] 

    [21] See Beezley v Repatriation Commission (2015) FCAFC 165 [68] (North, Tracey and Mortimer JJ). See also National Disability Insurance Agency v WRMF (2020) 276 FCR 415 [201]-[202].

27. Paragraph 34(1)(aa) of the NDIS Act, which is an amendment, imposes an additional requirement on the criteria. This additional requirement is the consideration of whether the support is necessary to address the needs of Mr Zohiab which arise from the impairment/s for which he meets the disability requirements.

28. Subsection 34(1)(f) of the NDIS Act is also an amendment; however, it is a replacement of an ‘old provision’ with a ‘new provision’.

29. This new provision of subsection 34(1)(f) of the NDIS Act requires that the support is an ‘NDIS support’.

30. Also relevant to this review is the inclusion of section 10 of the NDIS Act, also made pursuant to the Amending Act. Section 10 of the NDIS Act provides a definition of what constitutes an ‘NDIS support’ for the purposes of subsection 34(1)(f) of the NDIS Act (as amended). Section 10 of the NDIS Act provides as follows:

    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 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.

    Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

    (2)Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (1), the Minister must be satisfied:

    (a)    for rules to which paragraph (1)(a) applies--that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or

    (b)    for rules to which paragraph (1)(b) applies--that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

    (3)National Disability Insurance Scheme rules may declare a support for the purposes of subsection (1) only if at least one of the following applies:

    (a)    the declaration of the support implements Australia’s obligations under:

    (i)the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006; or

    (ii)any other agreement with one or more other countries;

    (b)    the declaration of the support enables the provision of sickness benefits.

    Note: For subparagraph (a)(i), the Convention on the Rights of Persons with Disabilities is in Australian Treaty Series 2008 No. 12 ([2008] ATS 12) and could in 2024 be viewed in the Australian Treaties Library on the website ( that are not NDIS supports

    (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.

    Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

    (5)Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (4), the Minister must be satisfied:

    (a)    for rules to which paragraph (4)(a) applies--that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or

    (b)    for rules to which paragraph (4)(b) applies--that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

    (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.

    Note 1: A determination may be revoked under subsection 33(3) of the Acts Interpretation Act 1901.

    Note 2: The National Disability Insurance Scheme rules may prescribe a support for the purposes of paragraph (a) by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

    (7)An application under paragraph (6)(c) must:

    (a)    be in the form (if any) approved by the CEO; and

    (b)    include any information, and be accompanied by any documents, required by the CEO; and

    (c)    be made in accordance with any other requirements specified in the National Disability Insurance Scheme rules for the purposes of this paragraph, which may include requirements as to the circumstances in which an application may, or may not, be made.

    (8)The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of subsection (6), including by prescribing requirements with which the CEO must comply, methods or criteria that the CEO is to apply, or matters that the CEO may, must or must not take into account, in deciding whether to make a determination under that subsection.

    (9)A support is not an NDIS support for a participant or prospective participant if the support consists of the provision of:

    (a)    sexual services; or

    (b)    alcohol; or

    (c)    drugs, the possession of which is a contravention of a law of the Commonwealth, a State or a Territory.

1. Subsection 34(2) of the NDIS Act provides that the NDIS Rules may prescribe methods or criteria to be applied, or matters to which the CEO must have regard, in deciding whether the criteria under subsection 34(1) of the NDIS Act are met in respect of a requested support.

2. Section 35 of the NDIS Act provides for the making of rules in relation to prescribing reasonable and necessary supports or general supports that will be funded or provided under the NDIS. The relevant rules in respect of this review are the:

   ·National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘Supports Rules’);

   ·National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (‘Access Rules’);

   ·National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (‘Transitional Rules’); and

   ·National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2013 (‘SDA Rules’).

3. Rule 3 of the Supports Rules relates specifically to subsections 34(1)(c)–(e) of the NDIS Act and provides as follows:

   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 (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);

   (d)   for supports that involve the provision of equipment or modifications:

   (i)the comparative cost of purchasing or leasing the equipment or modifications; and

   (ii)whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;

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

   (f)    whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).

   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, informal networks and the community to provide, the CEO is to consider the following matters:

   (a)     for a participant who is a child:

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

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

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

   (v)whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing;

   ………………………………………………………………………………………

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

4. Rule 5 of the Access Rules states:

   When does a person meet the disability requirements?

   5.1 The Act sets out when a person meets the disability requirements. The requirements are met if:

   (a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or to one or more impairments attributable to a psychiatric condition; and

   (b)the person’s impairment or impairments are, or are likely to be, permanent (see paragraphs 5.4 to 5.7); …

   When is an impairment permanent or likely to be permanent for the disability requirements?

   5.4An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.

   5.5An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.

   5.6An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).

   5.7If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.

5. Schedule 1 to the Transitional Rules identifies supports that are NDIS supports unless otherwise provided, for the purposes of subsection 10(1) of the NDIS Act. Likewise, Schedule 2 to the Transitional Rules identifies supports that are generally not NDIS supports for the purposes of subsection 10(1) of the NDIS Act.

6. In McGarrigle v National Disability Insurance Agency[22] at [43], Mortimer J (as Her Honour then was) made the following observations in respect of these rules:

   The [Supports Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement…some policy decision-making about the nature and extent of supports to be provided or funded.

   [22] McGarrigle v National Disability Insurance Agency [2017] FCA 308 [43] (‘McGarrigle’).

7. The phrase ‘reasonable and necessary’ is not defined in the Act. It is a composite phrase and should be considered as such. In McGarrigle, Mortimer J also stated as follows:[23]

   Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.

   [23] Ibid [91].

8. The Full Court in National Disability Insurance Agency v WRMF[24] also considered the meaning of reasonable and necessary supports, and stated as follows:

   The phrase is a composite phrase. We accept the Agency's submissions that each limb of the phrase should be given work to do. That task is not difficult, or complicated with these two particular words, which are readily understood as conveying different meanings. However, the Parliament has chosen to use a composite phrase rather than to stipulate two distinct requirements, and therefore, as Gleeson CJ cautioned in XYZ v Commonwealth [2006] HCA25; (2006) 227 CLR 532 at [19], '[t]here are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts'.

   … Both adjectives qualify the noun “support”, but they do so as a composite phrase. It is not fruitful to split them off and consider them separately, just as it is neither fruitful nor appropriate to attempt any exhaustive or authoritative judicial definition of them.

   Nevertheless, there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.

   [24] National Disability Insurance Agency v WRMF [2020] FCAFC 79 [149] – [151] (‘WRMF’).

   OPERATIONAL GUIDELINES

9. The Agency also issues Operational Guidelines in relation to what are considered ‘reasonable and necessary supports’ in a participant’s plan. There is no power conferred by the Act to make these Operational Guidelines, and they are issued in an exercise of executive power.[25] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines. However, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[26] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[27] where Mortimer J held:[28]

   Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it.

   [25] Minister for Home AffairsvG [2019] FCAFC 79 [18].

   [26] [1979] AATA 179 (1979); 2 ALD 634.

   [27] [2018] FCA 1229.

   [28] Ibid at [171].

10. Accordingly, unless the Operational Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in a determination of what is a reasonable and necessary support for Mr Zohiab. The Guidelines relevant to this review are the:

    ·NDIS – Operational Guidelines – Individualised Living Options and ‘Supported Independent Living’;

    ·NDIS – Operational Guidelines – ‘Creating Your Plan’ and ‘Your Plan’;

    ·NDIS – Operational Guidelines – Reasonable and necessary supports; and

    ·NDIS – Operational Guidelines – Specialist Disability Accommodation.

    EVIDENCE

11. The Tribunal marked the following evidence as Exhibit Bundles (‘EB’):

    ·EB-1 – Joint hearing bundle – 373 pages;

    ·EB-2 – T Docs – 375 pages;

    ·EB-3 – Agency breakdown of support in current plan, 27 May 2025, 1 page;

    ·EB-4 – DVA Attendant care services determination email to Mr Zohiab, 16 September 2024, 4 pages;

    ·EB-5 – Mr Zohiab’s additional information in Annexures A - F;

    oA – Email to the Tribunal and Respondent, 29 May 2025, 1 page;

    oB – Reply Applicant gave about OT and GP report problems, 3 pages;

    oC – Applicant questions to ask witnesses at hearing, 9 pages;

    oD – NDIS email about audit on support worker use check, 1 page;

    oE – NDIS outcome about audit on support worker use check, 1 page; and

    oF – Resume of Mr Michael Watson, psychologist, undated, 4 pages. 

12. I have considered all the written evidence filed with the Tribunal and provided in the joint bundle, the oral evidence provided at the hearing on 27, 29, 30 May 2025, and the parties’ closing submissions. I will refer in my decision to some of the more salient aspects of the evidence. The fact however that I do not refer to all parts of the evidence does not mean that I have not taken all evidence before the Tribunal into account in reaching my decision.

    Evidence about Mr Zohiab

13. The evidence overwhelmingly supports, and it is not disputed, that Mr Zohiab has:

    ·A sensory impairment as a result of his hearing loss: and

    ·A psychosocial impairment as a result of PTSD.

14. As a result of his impairments Mr Zohiab contends that he is adversely affected in the following ways:[29]

    ·Impaired ability to leave the house because ‘I don’t drive anymore, I use a maxi-taxi with my assistance dog to attend appointments’;

    ·Impaired ability to process sensory stimulation, ‘I use a hearing aid and specialised headphones’;

    ·Inability to regulate his behaviours.[30] Mr Zohiab reported a history of acting aggressively and sleepwalking but it has ‘decreased due to my impaired mobility;’[31]

    ·Limited physical mobility and balance, ‘I cannot move, because of my joint and muscle pain, so I use a ‘transfer board,’ a wheelchair, and a four wheeled walker. ‘It takes me 20-30 minutes to move from my bed to the wheelchair with support worker help. From my bed to the shower takes 2 hours. From my wheelchair to the toilet takes 2 hours’;

    ·Impaired ability to attend to some self-care[32], ‘my wife helps me, because I can’t feel it when I touch things, I feel numb, tingle and I have function issues;’

    ·Impaired ability to perform manual household tasks;

    ·‘Mental health issues, I panic because I trained in combat, I want to kill people’;

    ·Impaired ability to self-manage ‘my wife is my fulltime carer and she helps me.’

    [29] Oral evidence of Mr Zohiab.

    [30] EB-1, page 365. EB-2, pages 25-26.

    [31] Oral evidence of Mr Zohiab.

    [32] SFIC 4 and 13

15. Mr Zohiab elected not to attend an Independent Medical Examination (IME) organised by the Agency because it was ‘a repetition to see practitioners again and again I will not do it, I am tired of it.’[33]

    [33] Oral evidence of Mr Zohiab.

16. Relevantly, Mr Zohiab’s funding under the scheme includes the following supports:[34]

    ·Core support – Assistance with self-care activities at the weekday daytime support worker assistance rate of $65.47 for 6 hours per week;

    ·Core support – Access Community Social and Recreational Activities Standard Saturday rate of $92.12 for 2 hours per week

    ·Core support – Short Term Accommodation and Assistance, including respite weekday 10 days per year; Saturdays 2 days per year; and Sundays 2 days per year;

    ·Capacity Building – occupational therapy assessment and report writing at hourly rate of $193.99 for 32 hours per year; and

    ·Capacity Building – Support Coordination – psychosocial recovery coaching at rate of $98.30 per hour for 100 hours per year.

    [34] EB-3.

17. Mr Zohiab contends that he requires 8 hours each weekday of support worker assistance and 6 hours on a Saturday and Sunday totalling 52 hours each week of support worker assistance. Mr Zohiab contends he requires this support in order to:

    ·Assist him to move out of his bed up to four times each day;

    ·Wash once or twice a day;

    ·Toileting;

    ·Wash his sheets and clothes;

    ·Heat up meals;

    ·Undertake the administration for his weekly appointments; and

    ·Provide him with his medication with lunch.

18. The goals included in Mr Zohiab’s plan[35] are that he would like support to:

    ·Be safe at home and in the community;

    ·Find more suitable accommodation to meet my needs;

    ·Learn Auslan Signed English so I can communicate better with others;

    ·Have a property with a suitable fence for my Assistance Dog;

    ·Build my independence and capacity to complete my daily activities and be able to safely access the community for social activities I enjoy; and

    ·Build a garden so that I can spend time in my yard.

    [35] Oral evidence of Mr Zohiab where he updated the written goals. EB-1, pages 272-273.

19. Mr Zohiab’s work history has included employment as a: retail security officer, cook, small business owner and also around three years’ service in various states of Australia with the Australian Defence Force (ADF), and a ‘quartermaster’ managing warehouse assets as part of the Royal Australian Army Ordnance Corps (RAAOC). Mr Zohiab requested medical discharge from the ADF in 2020 and this process was completed around January 2021.[36]

    [36] EB-1, pages 12 and 15. EB-1, A7, page 36.

20. The Department of Veterans Affairs (DVA) listed over 20 conditions that are covered for treatment for Mr Zohiab.[37] Mr Zohiab contends he has ‘symptoms from the following conditions…which result in significant upper and lower limb dysfunction, severe pain, numbness, tingling, shooting pain and overall weakness:’[38]

    [37] EB-1, page 5. EB-1, pages 118-120.

    [38] EB-1, page 180.

    ·Bilateral ankle sprain;

    ·Bilateral hip gluteal tendinopathy;

    ·Bilateral Hoffa's syndrome;

    ·Bilateral infrapatellar bursitis;

    ·Bilateral plantar fasciitis;

    ·Bilateral rotator cuff tendinopathy;

    ·Bilateral sacroiliac joint degeneration;

    ·Cervical spondylosis;

    ·Erectile dysfunction;

    ·Left hand adductor pollicis strain;

    ·Obstructive Sleep Apnoea;

    ·Lumbar Radiculopathy;

    ·Cervical Radiculopathy;

    ·Lumbar spondylosis;

    ·Major depressive disorder;

    ·Panic disorder;

    ·Post traumatic stress disorder;

    ·Pseudofolliculitis barbae;

    ·Psoriasis;

    ·Right distal quadriceps tendinopathy;

    ·Right leg varicose veins of the lower limb;

    ·Sensorineural hearing loss;

    ·Thoracic spondylosis;

    ·Tinea;

    ·Tinnitus; and

    ·Alcohol use disorder-in remission.

21. Since his January 2021 medical discharge from the ADF, Mr Zohiab and his wife have lived in a private rental property in Queensland. Since October 2024, DVA funded an assistance dog to live with Mr Zohiab.[39] Mr Zohiab reported that his wife works at a supermarket and wakes early to assist him with his needs before she attends work.

    [39] Oral evidence of Mr Zohiab.

22. Mr Zohiab receives a specialist Veterans’ Disability Pension.[40] In addition to this pension and his assistance dog, Mr Zohiab receives the following support from the DVA:[41]

    [40] EB-1, page 38.

    [41] Oral evidence of Mr Zohiab. EB-1, pages 22-23.

    ·Household services approved for the period 27 July 2023 until 26 July 2028:[42]

    [42] EB-1, page 22.

    oMeal preparation, 1 service of 3 hours per week;

    oIndoor domestic cleaning, 1 service of 1.5 hours per week;

    oGardening, excludes tree maintenance, removal, tip fees and chemicals, 1 hour per service up to 12 services per year;

    oGutter cleaning the ground level gutters, only 2 services per year at 3 hours per service; and

    oWindow cleaning on ground level internal and external, upper level internal, only 1 service per year at 3 hours per service.

    ·Attendant Care personal care services was approved for the period 16 September 2024 until 15 September 2025. This is defined as ‘assisting with managing personal care needs…and can include assistance with personal hygiene (bathing and toileting, grooming, dressing and feeding)[43];

    [43] EB-4 attendant care determination of DVA.

    o7 hours per week at a cost of $68.40 per hour; and

    oMr Zohiab confirmed he can use the hours as he chooses and that the determinations are usually made annually.

    ·The following treatments for Mr Zohiab are also funded by the DVA:[44]

    oGeneral Practitioner, Dr Alam (around one to two visits per month);

    oOccupational therapy (three times per month);

    oPhysiotherapy (twice per week);

    oPsychology (once per month);

    oPsychiatry (two visits per month and two sessions of 3-5 weekly Transcranial Magnetic Stimulation sessions per year);

    oPodiatrist (once every one to two months); and

    oEar, Nose and Throat (ENT) specialist for once per month ear clearing.

    [44] EB-1, page 39.

    Written evidence of Ms Magar

1. Ms Magar chose not to give oral evidence at the hearing. I acknowledge Ms Magar’s conscientious efforts in supporting Mr Zohiab. Ms Magar provided many submissions to the Tribunal, including an:

   ·Undated 37-page ‘caregiver support table’;[45]

   ·Undated ‘current progress of NDIS matter’ where Ms Magar described the ‘occupational therapist’s report is dismissive and pejorative’;[46] and

   ·Undated statement in support of Mr Zohiab and detailed the difficulties Ms Magar faces in providing informal support to her husband.[47]

   [45] EB-1, pages 121 – 158.

   [46] EB-1, pages 175-179.

   [47] EB-2, T12.

2. I acknowledge Ms Magar’s written evidence regarding the difficulties she has providing substantial informal support responsibilities for Mr Zohiab.

   Written evidence of support workers

3. Mr Zohiab provided two support worker statements to the Tribunal. Mr Gregory Harvey, support worker, signed his statement on 24 May 2024.[48] Ms Rachel Edwards, support worker, signed her statement on 3 June 2024.[49]

   [48] EB-1, pages 105-107.

   [49] EB-1, pages 108-109.

4. Mr Harvey’s statement indicates he provides Mr Zohiab with ‘four hours [sic] shift each day on weekdays (total 5 shifts), and 3 hours shift each day on weekends (total 2 shifts) via his NDIS funding’ … and also ‘1 hour per day on weekdays and weekends under department of veteran affairs [sic] funding’.[50] Ms Edwards reported the same quantum of weekly hours that Mr Harvey reported.[51]

   [50] EB-1, page 105.

   [51] EB-1, pages 108-109.

   Written evidence of Ms Stacey Patterson, occupational therapist, Ability Action Australia

5. Ms Patterson is an occupational therapist with around 3 years’ experience.

6. Ms Patterson attended Mr Zohiab’s home on 8 and 14 December 2022 and again on 30 August and 5 September 2023. Ms Patterson provided a 66-page ‘Extreme Functional Impairment/Specialist Disability Accommodation’ report dated 6 October 2023.[52]

   [52] EB-1 pages 29-94.

7. Ms Patterson noted in December 2022 that Mr Zohiab reported significant mobility issues as he cannot climb stairs, and sensory issues with noise from neighbours and road traffic that ‘exacerbates his PTSD’ and that he ‘lacks air conditioning.’ Ms Patterson recommended Mr Zohiab attend an incontinence nurse.[53]

   [53] EB-1, page 63.

8. Ms Patterson recommended that Mr Zohiab be funded for an accessible 3-bedroom, single storey, level access SDA with the following features:

   ·robust reinforced and sound proofed walls;

   ·windows with safety glass;

   ·adjustable lighting;

   ·a tailored sensory room;

   ·access to calming sound and scents; and

   ·separate lockable kitchen with no access to knives and sharp objects. [54]

   [54] EB-1, pages 42-43.

9. Ms Patterson observed that Mr Zohiab ‘has demonstrated a decline in his functional capacity and an increase in his disability which can be attributed to the further decline in his mental health and the resultant physical deconditioning as he spends large periods in bed owing to low motivation, low mood and increased pain and discomfort.’[55]

   [55] EB-1, pages 32-33.

10. Ms Patterson reported that Ms Magar is Mr Zohiab’s ‘primary caregiver’ and she works 2 – 3 times per week and schedules her shifts around [his] support and care needs’.[56]

    Written and oral evidence of Ms Anna Nicholls, occupational therapist, North Queensland Therapy Services

    [56] EB-1, page 38.

11. Ms Nicholls provided a ‘file review’ to the Tribunal dated 6 November 2024[57] and also oral evidence at the hearing. I am satisfied that Ms Nicholls’ evidence was honest and truthful and in accordance with her obligations as an expert witness. I am satisfied that Ms Nicholls was neither an advocate for Mr Zohiab nor the Agency. Ms Nicholls’ evidence greatly assisted the Tribunal. I accept her evidence.

    [57] EB-1, R8, pages 301 – 323.

12. Ms Nicholls explained that she had not met Mr Zohiab nor seen his living space. Rather, she confined her expert opinion to reading other practitioner’s assessments and this was informed by her ‘over 30 years of experience as an occupational therapist.’

13. Ms Nicholls raised issues with the quality of material provided in Mr Zohiab’s application. Ms Nicholls stated she was ‘perplexed at the lack of medical specialist opinion’ and elaborated that Mr Zohiab’s material indicates: [58]

    ·‘new symptoms with no diagnoses. Occupational therapists require a medical diagnosis to confirm and understand the impairment’;

    ·‘inconsistencies in reports provided:

    owith the mobility difficulties reported by Mr Zohiab, I would normally see a report from a specialist supported by scans, and other testing…and also a report from an incontinence nurse. There was no confirmation of these impairments.’;

    oOne assessment listed Mr Zohiab as having cognitive impairment then later no impairment was reported. Another assessment states Mr Zohiab requires an electric wheelchair and later reports indicates he is able to walk short distances; and that

    ·much of the material relied on self-report ‘with minimal objective clinical assessment.’

    [58] EB-1, R8, page 3. Oral evidence of Ms Nicholls.

14. Ms Nicholls stated that she had read Dr Alam’s material, and she acknowledged the diagnoses given to Mr Zohiab. Ms Nicholls then gave evidence that occupational therapists place importance on specialist clinical evidence around diagnosis because:

    ·‘it is outside my scope of practice to diagnose. I rely on a medical practitioner to diagnose, treat, and at times medicate the impact of the condition on the person, so I can assess the functional impact to support the person. If a diagnosis is a degenerative neurological condition, we need plan to how to care for the person and coordinate according to their condition’.

    ·the diagnosis assists with using appropriate assessment tools. The Montreal Cognitive Assessment (MoCA) ‘test administered by Ms Patterson is predominately used for Acquired Brain Injuries (ABI), Mr Zohiab does not have this diagnosis.’

    ·the diagnosis helps me to look at what a person can and cannot do and consider medical conditions and their functioning and assist the person with their goals, modify the environment, prescribe Assistive Technology (AT) or equipment and rehabilitative means. There was limited clinical evidence to understand Mr Zohiab’s conditions or diagnoses or impairments in the physical domain.

15. When asked about inconsistencies Ms Nicholls opined that Ms Patterson ‘applied another inappropriate assessment tool for Mr Zohiab’ because ‘the Care and Needs Scale (CANS) is usually administered for ABI on a scale designed to determine care needs with very heavy medical requirements’. In response to Mr Zohiab’s question about what else the MoCA test may be used for Ms Nicholls responded, ‘I have used the MoCA for many years, especially if someone’s cognition was in question and we suspect undiagnosed dementia. Mr Zohiab does not have this diagnosis.’

16. Ms Nicholls stated that self-reporting is ‘helpful, but we can’t rely on it’, it should also be tested by:

    ·looking at the diagnosis which then informs a general expectation of what one sees a person can or cannot do;

    ·looking at the person’s insight into their practical abilities for example by asking the person to demonstrate how they get on and off a toilet;

    ·checking equipment to see how the person is using their AT or equipment;

    ·undertaking clinical testing of their environment to see if it matches what they have reported; and

    ·comparing it to other reports. Ms Nicholls gave the example of the physiotherapist Ms Cielo O’Neill’s report around Mr Zohiab’s mobility and high pain responses. Ms Nicholls quoted Ms O’Neill’s report where it was stated the ‘objective assessment was limited due to irritability and a limited mobility’ to see what Mr Zohiab could and could not do.[59]

    [59] EB-1, pages 27. Also oral evidence of Ms Nicholls.

17. Ms Nicholls listed concerns with Ms Patterson’s report that it focussed on:

    ·what Mr Zohiab self-reported that he wanted instead of what he needs according to his function to build his capacity; and

    ·Mr Zohiab’s self-report with no evidence of a functional capacity assessment. ‘There was no explanation of how Mr Zohiab transferred from sitting to standing’.

18. When asked about the number of hours of support worker assistance recommended for Mr Zohiab, Ms Nicholls responded:

    I think Mr Zohiab is more functional than he has self-reported. Sometimes people will not demonstrate what they can and cannot do so I will have to rely on medical reports. The medical diagnoses listed here, in my experience, would not restrict Mr Zohiab from going upstairs.

19. Mr Zohiab disputed Ms Nicholl’s evidence with a level of disparagement and threatening remarks which were unacceptable to the Tribunal.[60] However, after a break Mr Zohiab was able to ask questions of Ms Nicholls that assisted the Tribunal. 

    [60] The applicant threatened to kill Ms Nicholls and himself. Mr Zohiab later apologised for this.

20. Ms Nicholls did not recommend additional support worker assistance nor SDA funding for Mr Zohiab as she disagreed with the recommendations in Ms Patterson’s report because they ‘lacked a clinical basis and there was no contemporaneous functional capacity assessment to support the requests.’

    Evidence of Dr Luke Hatzipetrou, clinical psychologist, DGM Psychology Pty Ltd

21. Dr Hatzipetrou is a clinical and forensic psychologist with ‘over 35 years of experience working with people with psychosocial impairments.’ He provided a ‘file review’ dated 17 November 2024[61] and also gave oral evidence at the hearing. I am satisfied that Dr Hatzipetrou’s evidence was honest and truthful and in accordance with his obligations as an expert witness.

    [61] EB-1, R9, pages 333 –362.

22. Dr Hatzipetrou explained that ‘due to insufficient information’ he was unable to:

    ·furnish a firm opinion considering the complexity of Mr Zohiab’s psychological, sensory and physical impairments whilst noting that ‘physical impairment is not my area of specialisation’;[62] and

    ·‘triangulate with available collateral’ and could not assess the presence and severity of Mr Zohiab’s psychological impairment and how it impacts across different areas of his function because there were no psychometric tools available to support the claims.

    [62] EB-1, R9, page 95.

23. Dr Hatzipetrou’s evidence regarding Mr Zohiab’s impairments can be summarised as follows:[63]

    ·he accepted the different diagnoses made by other practitioners[64] and noted Mr Zohiab’s mental health admission in February 2024;

    ·he did not delineate Mr Zohiab’s physical and psychosocial impairments and noted that ‘if there is a physical disability, we would need to look at the physical cause for limited mobility, this cannot be based on PTSD’;

    ·‘I cannot answer what extent Mr Zohiab’s physical limitations may be attributed to his psycho-social conditions. PTSD may contribute to him moving slower, but PTSD does not cause physical disability or physical impairment;

    ·‘people with depression may move more slowly. The only time we see a physical impairment with depression, which is temporary, is catatonia in severe psychotic disorders. That is not the case here;’ and

    ·‘Mr Zohiab has well documented reporting of pain and nerve pain. Some people with pain symptoms also report depression and people avoid tasks that cause pain. It is unclear whether it is a physical injury causing pain or the depression. I do not know if there is a biological reason why Mr Zohiab reports he cannot move. I can’t test how much is physical and how much is psychosocial.’

    [63] EB-1, R9. Oral evidence of Dr Hatzipetrou.

    [64] EB-1, R9, page 337. EB-2, page 209. Oral evidence of Dr Hatzipetrou.

24. Dr Hatzipetrou was unable to express ‘with a degree of confidence’ how many support worker hours Mr Zohiab required because we ‘don’t have the data to support it with surety’. Dr Hatzipetrou did acknowledge a higher level of support hours of ‘around 8 hours per day’ may help Mr Zohiab to achieve his goals and ‘may lessen the burden for Ms Magar’.

25. Dr Hatzipetrou’s evidence regarding Mr Zohiab’s request for SDA was based on ‘over three decades of making housing or SDA recommendations, so I understand what SDA requires.’ In response to Ms Patterson’s report and questions from Mr Zohiab and the Agency, his evidence can be summarised as follows:

    ·Typically, residents of SDA receive 24-hour care due to the resident’s behavioural requirements as outlined in their respective containment or restrictive practices. There is no evidence that Mr Zohiab is subject to any containment or restrictive practices;

    ·Without behavioural data for Mr Zohiab, without a chart recording reported behaviours of concern, the prevalence of these behaviours remains unclear. ‘I can only speculate if these behaviours are related to PTSD, further exploration is required at a face-to-face assessment;’

    ·Without behavioural analysis, it is unclear why Mr Zohiab may be causing property damage. For example, it is unclear if it is due to psychosocial impairments of anxiety or physical impairments causing him to fall. Clinical assessments are required to assess Mr Zohiab’s actual needs first before any work on problem behaviours could start. Mr Zohiab’s behavioural concerns are unclear, I am not saying they don’t’ happen, I just don’t know what drives them;’[65]

    ·He disagreed with the robust design SDA and the recommendations made by Ms Patterson, Dr Hatzipetrou opined:

    oReinforced walls increase the risk of harm to the person as ‘the person may be damaged by the wall’;

    oSafety glass recommendations also require documentation of the severity of the behaviours of concern and analysis of what is driving the behaviours. ‘For example, if the behaviour happens once a month, he would not likely need safety glass or reinforced walls;’ and

    oThere is insufficient evidence to ‘justify a lockable kitchen for Mr Zohiab. This is an area of restrictive practices that requires more work. There is a process to examine this, and authorisations are required. Clear risk assessment evidence is required. There is no evidence of this.’;

    ·‘Without documentation, I cannot see how Mr Zohiab’s support needs can be met in SDA as opposed to him living in different accommodation with more appropriate features. The attributes of SDA may be replicated in non-SDA houses.’; and

    ·In response to a question from Mr Zohiab regarding the suitability of his current accommodation, Dr Hatzipetrou stated, ‘you may benefit from accommodation containing accessible design features, but this is available in other homes with appropriate layouts and design features can be modified without a specific SDA build…[66] because sound proofing and blackout curtains are not unusual, they can be organised for non-SDA homes.’[67]

    [65] Oral evidence of Dr Hatzipetrou.

    [66] Oral evidence of Dr Hatzipetrou. See also EB-1, R9, page 358.

    [67] EB-1, page 360, line 1280.

26. Dr Hatzipetrou concluded that ‘diagnosis alone is not what funds services, it is the degree of impairment that funds the service.’

27. Dr Hatzipetrou responded to Mr Zohiab that he could ‘not comment about the provision of an assistance dog by the DVA, because ‘the dog provides you with comfort, not evidence-based treatment. I think psychiatric treatment would be helpful for you.’

    Evidence of Mr Michael Watson, psychologist, DVA, Open Arms counselling

28. Mr Watson provided an undated ‘NDIS report recommending additional supports’ for Mr Zohiab.[68] I accept Mr Watson’s evidence and acknowledge his many years of experience as a psychologist and his work with veterans.[69]

    [68] EB-2, T1G.

    [69] EB-5, Annexure F.

29. Mr Watson noted that Mr Zohiab first received services with him in January 2021 and that ‘PTSD has the highest impact on Mr Zohiab’s life.’[70]

    [70] EB-2, T1G, page 77.

30. Mr Watson recommended:

    ·Increase core supports funding to allow more home assistance support (e.g., approximately 8 additional attendant carer support hours per week’[71]

    ·significant assistance with all hygiene tasks, meal prep and basic functioning. Informal carer is overextended and at risk.’[72]

    [71] EB-2, page 79.

    [72] EB-1, page 195. EB-2, T1G.

31. Mr Watson provided responses to the Agency’s targeted questions on 5 March 2024.[73] In summary, Mr Watson recommended SDA for Mr Zohiab because it would ‘significantly improve [his] quality of life.’[74]

    [73] EB-1, R4, pages 257 – 263.

    [74] EB-1, page 16.

    Evidence of Dr Muhammad Saeed Alam, general practitioner (GP)

32. Dr Alam has been Mr Zohiab’s GP since January 2021.[75]

    [75] Oral evidence of Mr Zohiab.

33. Mr Zohiab filed materials that Dr Alam had prepared for Mr Zohiab’s DVA matter. Dr Alam responded to DVA questions regarding Mr Zohiab’s function in various areas on 9 March 2022.[76] Dr Alam responded that in March 2022, Mr Zohiab ‘could walk about 100 metres before needing to rest’.[77]

    [76] EB-2, T1E.

    [77] EB-2, page 50.

34. On 28 September 2022,[78] Dr Alam provided a one-page medical certificate for Mr Zohiab where Dr Alam notes over 20 separate physical conditions accepted by DVA for Mr Zohiab.[79]

    [78] EB-2, T1D.

    [79] EB-2, T1D, 42.

35. I note that Dr Alam did not respond to the Agency’s targeted questions that were emailed to Mr Zohiab on 19 February 2024[80] to pass onto Dr Alam.

    CONSIDERATION

    [80] EB-5, Annexure B.

    Issue number 1: Mr Zohiab’s physical conditions

36. I am satisfied that Mr Zohiab was granted access to the scheme on the basis of meeting the disability requirements pursuant to section 24 of the NDIS Act.[81]

    [81] Agency closing submissions.

37. I am satisfied that Mr Zohiab meets the disability requirements on the basis of a psychosocial impairment due to PTSD and a sensory impairment due to hearing loss.[82]

    [82] EB-1, page 363.

38. I consider that Mr Zohiab gave a forthright account regarding his submissions, circumstances, impairments, and needs. I accept Mr Zohiab’s evidence that he experiences ‘physical conditions’ and give weight to Mr Zohiab’s and Ms Magar’s lived experience and their respective reporting that the requested supports are beneficial for Mr Zohiab. I accept that Mr Zohiab reports he is not able to physically perform day-to-day tasks and that he ‘sleeps downstairs in the lounge.’ I accept that Mr Zohiab has also been diagnosed with other conditions listed at [9]. However, he was not granted access to the scheme on the basis of physical impairments due to any of these ‘physical conditions.’[83] It was unclear how any of these conditions impact on Mr Zohiab’s current physical functional capacity as there was limited probative or contemporaneous evidence provided.

    [83] Mr Zohiab also referred to his DVA paperwork that listed over 20 other conditions at [50] that were not pressed.

39. Mr Zohiab relied on reports from 2022 which could not be tested because the authors were unavailable to give evidence around Mr Zohiab’s current support needs.[84] I prefer Dr Hatzipetrou’s and Ms Nicholls’ evidence.

    [84] EB-2, page 209.

40. Notwithstanding the diagnoses of physical conditions, Mr Zohiab must still satisfy the relevant criteria under section 24 and section 25 of the NDIS Act in order to meet the disability requirements or the early intervention requirements for the purposes of having a physical impairment. I note that Mr Zohiab offered no contentions around section 25 of the NDIS Act.

41. The only medical evidence regarding Mr Zohiab’s physical impairments was from Dr Alam. Dr Alam’s written evidence regarding Mr Zohiab’s physical impairments was unclear and did not assist me because it was written in general terms and was vague. I cannot accept from Dr Alam’s medical certificate, nor from the questionnaire documentation the specifics of what the conditions entailed nor how they arose.

1. I cannot accept that these listed conditions at [9] are permanent as contemplated by section 24(1)(b) of the NDIS Act. There was no clinical evidence provided to explain the conclusions that Dr Alam arrived at with respect to how the conditions impact Mr Zohiab and how the conditions contribute to his physical impairments.

2. I find that there was insufficient evidence to demonstrate that the physical conditions result in any physical impairment which may be characterised as having an enduring quality[85] or that rules 5.4 or 5.6 of the Access Rules are satisfied.

   [85] Davis 2022 FCA [82]-[86].

3. I accept the Agency’s submissions that given the extent of disability asserted in Mr Zohiab’s material, it would follow that specialist evidence would be included. However, this was not the case and the latest evidence to support Mr Zohiab’s claims was from 2022. I note that over the ensuing three years to the present date there is no further medical evidence to elaborate upon the status of Mr Zohiab’s physical health conditions. I am not satisfied on the evidence regarding Mr Zohiab’s treatment, prognosis nor the substance of the conditions themselves. Therefore, I cannot be satisfied that Mr Zohiab has a physical impairment which is permanent pursuant to subsection 24(1)(b) of the NDIS Act.

4. I also do not accept Ms Patterson’s statement that ‘Mr Zohiab has permanent physical impairments’ and that his ‘functional capacity had declined’ because there was insufficient clinical evidence and analysis to support these assertions.[86] I prefer the more persuasive evidence of Ms Nicholls and Dr Hatzipetrou.

   [86] EB-1, page 90.

5. I note that Mr Zohiab’s accepted DVA conditions allow for treatment through mainstream services. Mr Zohiab may pursue these treatments, and the cost will be covered by the DVA.

6. I accept the Agency submissions where Dr Hatzipetrou discussed that Mr Zohiab’s psychosocial and physical impairments ‘appear blurred.’

7. Based on the evidence, I am not positively satisfied that Mr Zohiab has a physical impairment due to any of the conditions referred to at [9] and for the purposes of either section 24 or section 25 of the NDIS Act.

8. Accordingly, for the purposes of subsection 34(1)(aa) of the NDIS Act the supports included in Mr Zohiab’s SOPS must be necessary to address his needs that arise only as a result of his psychosocial impairment due to PTSD and sensory impairment due to a hearing loss.

9. On the evidence I am not satisfied that Mr Zohiab meets either the disability or early intervention requirement for a physical impairment. This means that supports that address needs that arise due to any physical impairment are therefore not capable of being funded in his SOPS.   

   Issue number 2: support worker assistance

10. I have already accepted that only the impairments for which Mr Zohiab was granted access to the scheme will be funded in his SOPS. Mr Zohiab’s current level of funding of support worker hours is therefore to be based only on his psychosocial and sensory impairments. Simply put Mr Zohiab’s SOPS will not include funding for supports in respect of his physical impairments.

11. ‘Supports’ are not defined in the NDIS Act. In McGarrigle Mortimer J considered that the term ‘supports’ referred to both services and activities that assist a participant in the scheme in accordance with the principles to be applied under the NDIS Act.[87] Her Honour stated:[88]

    The word “support” must be given a broad construction in this context, and there is no need for the purposes of this proceeding to seek to give it any comprehensive meaning. Rather, the point to be made is that it is a practical description of the means by which a person with disability is assisted. It is not intended, in my opinion, to encompass funding, especially because what s 14 contemplates is that the Agency will “fund” a support. The Agency cannot “fund” funding.

    [87] Sections 4(11) and 31, NDIS Act

    [88] McGarrigle at [88]

12. As a participant in the scheme Mr Zohiab is funded for ‘formal supports’. These supports are specified and contained within his SOPS. 

13. ‘Supports’ may also include ‘informal supports’ that are not funded under the scheme. These may be supports or services provided by others, including family members or entities outside the scheme.

14. Mr Zohiab’s ‘other supports’ are therefore comprised of both formal and informal supports. Based on the evidence I am satisfied that Mr Zohiab’s ‘other supports’ are comprised of the following:

    ·Informal support from his wife. This support includes physical support with his mobility, self-care, self-management. It also includes social support in the context of a family environment;

    ·Formal support funded under the scheme and provided by support workers funded under the scheme as well as ‘attendant care workers’ funded by the DVA;

15. It was unclear from Mr Zohaib’s evidence exactly how much support worker assistance Mr Zohiab utilised each week from his SOPS. Notwithstanding the Agency identified in its SFIC funding for the following level of support worker assistance:

    (a)4 hours per weekday;

    (b)3 hours on a Saturday; and

    (c)3 hours on a Sunday.

16. This level of current funding equates to 26 hours per week over a seven-day period. I acknowledge the additional funding costs incurred with weekend support. 

17. Currently Mr Zohiab has access to 33 hours per week of support worker assistance. This is comprised of 26 hours per week of support from Mr Harvey which is funded under the scheme, together with 7 hours per week from the DVA ‘attendant care’ hours.

18. Mr Zohiab requests an increase in support worker funding under the scheme to include the following:[89]

    ·8 hours per day on weekdays;

    ·6 hours per day on Saturdays;

    ·6 hours per day on Sundays.

    [89] EB-1, page 86. Pages 100-103. Request made on 24 October 2023.

19. In effect Mr Zohaib seeks 52 hours per week of funding under the scheme, which is an increase of 26 hours per week from the current funding in his SOPS.

20. Mr Zohiab explains the purpose of this increased funding to be in respect of the following;

    ·Assistance with mobility for bed transfers;

    ·Assistance with mobility for toilet transfers;

    ·Assistance with mobilisation generally;

    ·Assistance with sponge bathing on the basis he is unable to mobilise to the second level of his home where his bathroom is located; and

    ·Assistance with transportation for attending a variety of appointments for his physical conditions.

21. Based on the evidence I am satisfied that Mr Zohiab seeks the additional funding for supports that arise as a result of his physical conditions. Funding for these supports is not permitted due to a failure to satisfy section 34(1)(aa) of the NDIS Act for the purpose of an impairment due to these physical conditions.

22. I also cannot be positively satisfied that the additional support hours requested relate to his needs that arise as a result of his psychosocial impairments or his sensory impairments. In this regard, I am persuaded by Dr Hatzipetrou’s evidence.

23. Furthermore, I am satisfied that Mr Zohiab’s needs are adequately met within the current level of funding of 26 hours per week. In this regard I have also taken into account the additional 7 hours of weekly funding for an ‘attendant carer,’ the weekly 3 hours of meal preparation and the weekly 1.5 hours of cleaning services he receives from the DVA in light of subsection 34(1)(e) of the NDIS Act.

24. I cannot be satisfied on the evidence that an increase in up to 52 hours of support worker assistance is warranted. In this regard I aim persuaded by Dr Hatzipetrou statement that ‘PTSD does not cause physical impairments, but it can impact the speed of function.’[90]

    [90] Oral evidence of Dr Hatzipetrou.

25. I do not accept Dr Hatzipetrou’s suggestion that 8 hours per day of support worker assistance would assist Mr Zohiab and his carer as it was based on Mr Zohiab’s self-reporting. I prefer Ms Nicholls’ evidence that Mr Zohiab’s self-reporting ‘cannot be relied on as it was not clinically tested.’ I note also that Dr Hatzipetrou’s evidence must be considered in light of the fact that he was also unable to consider a contemporaneous Functional Capacity Assessment of Mr Zohiab.

26. I acknowledge the conscientious informal support that Mr Zohiab’s wife provides him.

27. In summary, the funding of 52 hours per week of support worker assistance is not a reasonable and necessary support for the purposes of section 34(1) of the NDIS Act and cannot be included in Mr Zohiab’s SOPS.

28. I conclude that the funding of 26 hours per week of support worker assistance with self-care activities at a 1:1 support ratio is a reasonable and necessary support pursuant to section 34(1) of the NDIS Act for the impairments for which Mr Zohiab was granted access to the scheme.

29. The Agency explained at the conclusion of the hearing it was unable to identify, without further consideration, with any degree of certainty the level of support worker assistance Ms Zohiab required as a consequence only of his psychosocial and sensory impairments. Subsequent to the hearing the Agency has appropriately reconsidered the evidence obtained at hearing and its position. In a submission to the Tribunal dated 11 June 2025 the Agency submits that Ms Zohiab should receive 35 hours per week of support worker assistance under the scheme.[91] This equates to an increase of 9 hours per week for support worker assistance to be included in Mr Zohiab’s SOPS.

    [91] Agency closing submissions.

30. I cannot accept the Agency’s submission that 35 hours of support worker assistance is a reasonable and necessary support. The nature of Mr Zohiab’s physical impairments is profoundly unclear on the evidence. Mr Zohiab contends that he has a substantial need for weekly support for his physical impairments. I cannot accept these assertions without probative evidence.

31. The Agency’s concession of 35 hours per week of support worker assistance is acknowledged. It is of course a matter for the Agency to make this concession and allowance in any future SOPS should it wish to do so. It is also open to the Agency to reconsider section 34(1)(aa) of the NDIS Act in respect of any further impairments for the purposes of section 24(1) of the NDIS Act. In this regard Mr Zohiab may consider undergoing a medical or allied health assessment to resolve this issue.

    Issue number 3: eligibility under the SDA Rules

32. The SDA Rules provide the criteria that Mr Zohiab must satisfy in order to be ‘eligible’ for SDA (the ‘eligibility criteria’). Importantly, eligibility for SDA does not automatically equate with an ‘entitlement’ to receive funding for SDA under the scheme.[92]

    [92] Keys and CEO, NDIA 2025 ARTA 269 at [86].

33. The satisfaction of the ‘eligibility criteria’ has the effect of establishing only whether Mr Zohiab meets the required criteria in order to be ‘considered’ for SDA. The additional mandatory requirement remains. Mr Zohiab must also satisfy the mandatory criteria of subsection 34(1) of the NDIS Act.

34. SDA will therefore only be funded under the scheme in circumstances where a participant:

    · Firstly, meets the eligibility requirements prescribed under Rule 11 of the SDA Rules, and

    · Secondly, also meets the criteria prescribed by subsection 34(1) of the NDIS Act.

35. Section 11 of the SDA Rules prescribes the criteria for eligibility for SDA and provides as follows:

    11 Eligibility to receive support for specialist disability accommodation.

    A participant is eligible to receive support for specialist disability accommodation under the National Disability Insurance Scheme if the CEO is satisfied that:

    (a)  the participant:

    (i)  has an extreme functional impairment (see section 12); or

    (ii)  has very high support needs (see section 13); and

    (b)  the participant meets the SDA needs requirement (see section 14).

36. Therefore, to meet the ‘eligibility requirements’ for SDA, the Tribunal must be satisfied that Mr Zohiab has either an ‘extreme functional impairment’[93] or a ‘very high support needs’’[94] and, also that Mr Zohiab meets the ‘SDA needs requirement’.[95]

    Extreme functional impairment

    [93] Rule 12, SDA Rules.

    [94] Rule 13, SDA Rules.

    [95] Rule 14, SDA Rules.

    Rule 12 SDA Rules: Does Mr Zohiab have an extreme functional impairment?

37. Rule 12 of the SDA rules prescribes the criteria a participant must satisfy for the requirement of having an ‘extreme functional impairment’. It provides as follows: 

    (1) A participant has an extreme functional impairment if:

    (a) the impairment results in extremely reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:

    (i) mobility;

    (ii) self-care;

    (iii) self-management; and

    (b) the participant has a very high need for person-to-person supports in undertaking the activity even with assistive technology, equipment or home modifications.

    (2) For the purposes of assessing whether a participant has an extreme functional

    impairment, the CEO may have regard to:

    (a) any assessment or examination conducted in relation to the participant, including any assessment or examination requested by the CEO under paragraph 36(2)(b) or 50(2)(b) of the Act; and

    (b) the daily support requirements of the participant; and

    (c) any assessment tool specified by the CEO for the purposes of this paragraph; and

    (d) any other matters that the CEO considers appropriate.

38. In order to have an extreme functional impairment (EFI), Mr Zohiab must firstly have an ‘impairment’ that results in an extremely reduced functional capacity in either his mobility, self-care or self-management. Secondly, he must also have a very high need for person-to-person supports in undertaking these activities even with AT, equipment or home modifications.

39. ‘Impairment’ is not defined in the SDA Rules. On the basis that the SDA Rules are complementary to the NDIS Act, I have taken the approach that the correct interpretation of ‘impairment’ for the purposes of the SDA Rules corresponds with the interpretation of ‘impairment’ for the purposes of the NDIS Act.

40. On this basis, Mr Zohiab may only rely on the impairments for which he satisfies section 24(1) of the NDIS Act for the purposes of determining his eligibility for SDA. As stated previously, these impairments are confined to Mr Zohiab’s psychosocial impairments due to PTSD and sensory impairments due to a hearing loss.

41. I am satisfied that this is the correct approach for the Tribunal’s task. This is also reinforced by the inevitable requirement of satisfaction of section 34(1)(aa) of the NDIS Act in consideration of whether SDA is a reasonable and necessary support for Mr Zohiab. To adopt an approach which included the consideration of impairments that do not satisfy section 24(1) of the NDIS Act would be a futile Tribunal task.

    Does Mr Zohiab have an extremely reduced functional capacity in relation to mobility, self-care or self-management – Rule 12(1)(a) of the SDA Rules?

42. Mr Zohiab contends he meets the requirements of Rule12(1) of the SDA Rules due to his ‘physical conditions.’[96]

    [96] Oral evidence of Mr Zohiab.

43. The Agency’s contentions may be summarised as follows:

    ·Mr Zohiab’s physical functional capacity remains unclear due to insufficient evidence based on self-reporting;

    ·There is inconsistent evidence regarding Mr Zohiab’s current physical functional capacity;

    ·The Agency relies on the reports of both Ms Nicholls and Dr Hatzipetrou;

    ·It was unclear why Ms Patterson’s report was based primarily on self-reporting and did not provide a functional capacity assessment for Mr Zohiab. Ms Nicholls explained what a clinical functional capacity assessment entails and that there was no up-to-date assessment regarding mobility in Ms Patterson’s 2023 report.

    Mobility

44. The NDIS specialist disability accommodation guidelines (SDA operational guidelines) describe mobility as as ‘walking, climbing stairs, getting in and out of a bed or a chair, carrying or moving items, and getting out of the house’.

45. Mr Zohiab stated he is unable to:

    ·     Transfer out of bed he said his leg and hands tingle;

    ·     Independently stand;

    ·     Use two hands to hold the walking frame;

    ·     Independently walk to the toilet; and

    ·     Walk upstairs.

46. Mr Zohiab stated he is able to:

    ·Brush his teeth;

    ·Dress himself with zip-up clothing and his wife helps with underpants and pants;

    ·Use the walking frame to mobilise to the kitchen and toilet; and

    ·Use his walking frame and wheelchair to mobilise in a shopping centre.

47. I have already accepted for the purposes of this review that Mr Zohiab’s impairments are confirmed to be psychosocial and sensory impairments.[97]

    [97] See paragraph [99].

48. There is no satisfactory evidence to persuade me that Mr Zohiab’s psychosocial impairments and sensory impairments result in an extremely reduced functional capacity to undertake mobility.

49. There is also no satisfactory evidence to persuade me that Mr Zohiab’s psychosocial impairments and sensory impairments result in an extremely reduced psychosocial functioning in undertaking mobility.

50. I accept that Mr Zohiab was clear in his evidence. Mr Zohiab refused to attend an in-person Independent Functional Capacity Assessment when the Agency offered to organise one. Such an independent in-person assessment would have greatly assisted the Tribunal.

51. I am satisfied that any reduction to the functional capacity of Mr Zohiab, extreme or otherwise, is due to his reported physical conditions and his reported physical impairments. This is because there is no other probative evidence before the Tribunal to make any other finding.

52. On the basis that there is no contemporaneous functional capacity assessment of Mr Zohiab, I give greater weight to the lengthy experience and compelling expert opinions of both Ms Nicholls and Dr Hatzipetrou.

53. Even though Ms Nicholls did not assess Mr Zohiab in person, her report and her oral evidence assisted the Tribunal with an understanding of Mr Zohiab’s mobility function.

54. I am satisfied that Mr Zohiab does not have an extremely reduced functional capacity in relation to his mobility. I accept that the word ‘extremely’ carries a high threshold. My considerations include the following:

    ·There is limited probative evidence regarding Mr Zohiab’s current physical functional capacity and what level of impact Mr Zohiab’s psychosocial impairments or sensory impairments have on his mobility;

    ·There is insufficient consistent evidence to support Mr Zohiab’s contentions that he has an ‘extremely’ reduced functional capacity to mobilise and what impairments lead to this extremely reduced functional capacity to mobilise. For example:

    oMr Zohiab’s evidence stated he had ‘punched walls and caused damage to property’, but at the hearing, Mr Zohiab reported that he could not hold the handles of his wheeled walker;

    oDr Alam reported that Mr Zohiab could walk about 100 metres before needing to rest in 2022.[98] Ms O’Neill, physiotherapist, observed in August 2023 that Mr Zohiab could ‘independently mobilise indoors and outdoors however, he has a shuffling walking pattern.’[99] Mr Zohiab reported at the hearing that it takes him 2 hours to move from his bed to access the toilet.

    ·Dr Hatzipetrou provided compelling evidence that ‘PTSD does not lead to physical impairments;’

    ·Mr Zohiab gave evidence that he can mobilise. He stated that he can use a transfer board. He can mobilise using his walker and wheelchair;

    ·I accept that AT and equipment reduces Mr Zohiab’s reliance on supports for his mobility;

    ·I accept the evidence that any impact on Mr Zohiab’s mobility is reduced to a level well below ‘extreme’ with Mr Zohiab’s use of appropriate AT and equipment;

    ·Mr Zohiab’s reported mobility impairment does not meet the definition of ‘extreme’ on the basis that his need for person-to-person supports would not be ‘very high’ because he can use appropriate assistive technology and equipment;

    [98] EB-2, page 50.

    [99] EB-1, page 26.

1. I cannot be satisfied that Mr Zohiab has an extremely reduced functional capacity in relation to mobility. Rule 12(1)(a)(i) of the SDA Rules in relation to mobility is not satisfied.

2. Furthermore, if my approach as referred to in [132]-[134] is incorrect, having considered the evidence in respect of all of the physical conditions referred to in [9][100] and the consequential impairments, I remain unable to be positively satisfied that Mr Zohiab meets the ‘threshold’ of an extremely reduced functional capacity in relation to mobility.

   [100] And also having considered the other conditions Mr Zohiab also referred to from the DVA paperwork at [50].

   Self-care

3. The SDA operational guidelines describe self-care as ‘washing yourself, going to the toilet, getting dressed, eating, drinking, talking and taking medication.’

4. There is no satisfactory evidence to persuade me that Mr Zohiab’s psychosocial impairment and his sensory impairment result in an extremely reduced functional capacity to undertake self-care.

5. There is also no satisfactory evidence to persuade me that Mr Zohiab’s psychosocial impairments and his sensory impairments result in an ‘extremely’ reduced psychosocial functioning in undertaking self-care.

6. Therefore, I am satisfied that Mr Zohiab does not have an extremely reduced functional capacity in relation to his self-care. My considerations include the following:

   ·I accept that Mr Zohiab requires some assistance with self-care. He stated that he requires assistance with transferring from the bed and walking to the toilet;

   ·Mr Zohiab is able to: apply soap to his body, brush his teeth, brush his hair, and feed himself. Mr Zohiab reported using equipment such as a shower bench for a ‘sponge bath’ and using a ‘raised toilet seat and over toilet grab rails;’[101]

   ·Ms Nicholls’ report and oral evidence assisted the Tribunal with an understanding of Mr Zohiab’s self-care function;

   ·I accept Ms Patterson’s evidence that Mr Zohiab requires ‘appropriate accommodation’ as there is limited space in his current accommodation for Mr Zohiab’s AT and equipment that he uses in respect to self-care. However, for reasons detailed later, this is not a relevant consideration under the statutory criteria of ‘extremely’ reduced functional capacity to undertake self-care itself;

   ·I accept that when Mr Zohiab uses appropriate AT and equipment, he would be able to better attend to his self-care needs. I also accept that if Mr Zohiab lived in ‘more appropriate accommodation’ it would be easier for him to use the AT and equipment that the DVA have provided for him;

   ·I note that Ms Patterson’s report mostly relied on:

   oSelf-reporting from Mr Zohiab; [102] and

   oLimited direct observations of a clinical functional capacity assessment for Mr Zohiab due to ‘increased levels of pain, decreased balance and mobility and decreased frustration tolerance.’[103]

   [101] Oral evidence of Mr Zohiab. EB-1, page 68.

   [102] EB-1, pages 47 – 67.

   [103] EB-1, page 54.

7. Based on the evidence regarding self-care, I am satisfied that even though Mr Zohiab self-reports many limitations in respect of his self-care, these limitations do not meet the high threshold of an ‘extremely’ reduced functional capacity with self-care.

8. Mr Zohiab does not have an extremely reduced functional capacity in relation to self-care. Rule 12(1)(a)(ii) of the SDA Rules in relation to self-care is not satisfied.

9. Furthermore, if my approach as referred to in [135]-[137] is incorrect, having considered the evidence in respect of all of the physical conditions referred to in [9][104] and the consequential impairments, I remain unable to be positively satisfied that Mr Zohiab meets the ‘threshold’ of an extremely reduced functional capacity in relation to self-care.

   [104] And also having considered the other conditions Mr Zohiab also referred to from the DVA paperwork at [50].

   Self-management

10. The SDA operational guidelines describe self-management as ‘housework, following routines, making friends and relationships and managing your behaviour’.

11. There is no satisfactory evidence to persuade me that Mr Zohiab’s psychosocial impairment and his sensory impairment result in an extremely reduced functional capacity to undertake self-management.

12. There is also no satisfactory evidence to persuade me that Mr Zohiab’s psychosocial impairment and his sensory impairments result in an ‘extremely’ reduced psychosocial functioning in undertaking self-management.

13. Therefore, I am satisfied that Mr Zohiab does not have an extremely reduced functional capacity to undertake self-management. My considerations include the following:

    ·Mr Zohiab’s evidence is that he is able to use: a computer, his mobile phone, his hearing aid and his ‘specialist headphones;’

    ·Mr Zohiab is able to follow a routine to attend appointments and he can communicate with his various treating practitioners any health concerns he may have. Mr Zohiab regularly attends his GP, psychologist, psychiatrist, physiotherapist, occupational therapist and podiatrist;

    ·Mr Zohiab maintains his relationship with his wife;

    ·I note that Mr Zohiab reported he is unable to undertake ‘any housework’ and that he relies on his wife for ‘many activities’ of self-management but that he is ‘in charge of his bank account;’

    ·Ms Nicholls’ report and oral evidence assisted the Tribunal with an understanding of Mr Zohiab’s self-management function;

    ·The Tribunal observed across three hearing days that Mr Zohiab was able to:

    oRepresent himself and cross examine witnesses called by the Agency;

    oFlexibly answer and ask questions in a logical and clear manner;

    oConscientiously prepare questions for the witnesses and manage his application;

    oMake decisions about how to answer and ask questions; and

    oManage and regulate his behaviour despite listening to confronting evidence that he ‘disagreed with.’[105]

    [105] Oral evidence of Mr Zohiab.

14. Mr Zohiab does not have an extremely reduced functional capacity in relation to self-management. Rule 12(1)(a)(iii) of the SDA Rules in relation to self-management is not satisfied.

15. Furthermore, if my approach as referred to in [132]-[134] is incorrect, having considered the evidence in respect of all of the physical conditions referred to in [9][106] and the consequential impairments, I remain unable to be positively satisfied that Mr Zohiab meets the ‘threshold’ of an extremely reduced functional capacity in relation to self-management.

    Does Mr Zohiab have a very high need for person-to-person supports in undertaking the activity even with assistive technology, equipment or home modifications – Rule 12(1)(b) of the SDA Rules?

    [106] And also having considered the other conditions Mr Zohiab also referred to from the DVA paperwork at [50].

16. Mr Zohiab has access to a substantial amount of assistive technology and equipment. Mr Zohiab confirmed he has received the following AT and equipment provided by DVA:[107]

    [107] EB-1, pages 68-70. EB-2, page 42.

    oShoprider Puma 10 Power Chair;[108]

    [108] EB-2, page 121.

    oAssistance dog;

    oDisability modified car and vehicle hand bar;

    oAdjustable home care bed (with waterproof protector) with companion bed;

    oBedside urine container;

    oCPAP machine;

    oBedside table for CPAP machine, bedtime medical management areas, and meal eating tray;

    oRaised toilet seat, with an over toilet grab rails with integrated arm support;

    oFoot stool;

    oSeated shower bench, Galaxy S22 Ultra;[109]

    [109] EB-2, page 127.

    oExtended bath sponge;

    oNonslip mat;

    oHandireacher, long reach sock aid and shoehorn;

    oJar opener;

    oRight ear hearing aid;

    oErgonomic back support chair;

    oIndoor and outdoor podiatrist prescribed medical shoes and insoles for footwear;

    oWalking frame;

    oFour Wheeled walker;

    oWalking crutches;

    oROHO specialised cushion;

    oSensory hearing and sight blackout assistance screen for sleep symptoms;

    oBack brace; back support cushion; seat support cushion; and

    oBruxism mouth guard for grinding teeth while sleeping.

17. I am not satisfied that Mr Zohiab has a very high need for person-to-person supports in undertaking the activities of mobility, self-care and self-management, even with assistive technology, equipment or home modifications.  My considerations include the following:

    ·Mr Zohiab currently receives around 5 hours of support worker assistance every day which is comprised of scheme support worker hours of around 3 - 4 hours each day and 1 hour each day of ‘attendant care support’ funded by the DVA;

    ·Mr Zohiab also relies on informal support from Ms Magar. Ms Magar elected not to provide oral evidence at the hearing. Therefore, the nature and amount of this support was unclear;

    ·Mr Zohiab was provided a ‘Power Chair’ by the DVA around June 2023.[110] Mr Zohiab reported ‘problems with this item ‘in small spaces.’ There is some inconsistency when compared to the written evidence of the prescribing occupational therapist, Mr Timothy Rumsey. Mr Rumsey wrote that Mr Zohiab was safely able to use the Power Chair to independently mobilise indoors and outdoors and he could ‘negotiate inside (tight areas) as well as outside. [The power chair] has a tilt and lift function so [he] can reach items higher up in shopping centres or chemists.’[111]

    ·Mr Zohiab’s use of his hearing aid and specialist headphones allowed him to participate in the hearing and he did not require very high person-to-person support to attend the hearing;

    ·Mr Zohiab was able to self-manage, communicate and respond at his assigned time during the hearing process;

    ·Mr Zohiab gave evidence his assistance dog is a welcome addition to his home. I accept Dr Hatzipetrou’s evidence that an assistance dog may ‘reduce the severity of the impact of Mr Zohiab’s psychosocial impairment from the ‘comfort’ it provides.

    [110] EB-2, pages 119-130.

    [111] EB-2, page 122.

18. There is no probative evidence before the Tribunal that the actual person -to-person support that Mr Zohiab requires is ‘very high’ or within the meaning of section 12(1)(b) of the SDA Rules for the impairments for which he was granted access to the scheme.

19. I am satisfied that by using his AT and equipment, Mr Zohiab is able to attend to his self-care, self-management and mobility activities without a ‘very high need’ for person-to-person supports. I note that Mr Zohiab’s power chair reduces Mr Zohiab’s person-to-person support when he mobilises with ‘the tilt and lift function which is required to reach upper areas at shop and chemist shelving and at times at home.’[112]

    [112] EB-2, page 116.

20. I note that even though Mr Zohiab reports that he cannot ‘access stairs’ I am satisfied that Mr Zohiab would be able to access buildings with multiple levels with little or no person-to-person support when these buildings have a lift as a modification. Due to this, I do not find that Mr Zohiab meets the requirement under Rule 12(1)(b) of the SDA Rules. I am persuaded by the reasoning in Keys that:

    ‘Firstly, because the person-to person supports must qualify as being ‘very high’. Secondly, the statutory context of Rule 12 and the requirement that the participants’ functional impairment be ‘extreme.’ Thirdly, because of the requirement of a decision maker to always consider the financial sustainability of the scheme.[113]

    [113] Keys and CEO NDIA at [117].

21. There is insufficient evidence to conclude that Mr Zohiab has extreme functional impairment or very high support needs. I accept the Agency submissions that the emphasis is on the word ‘extreme’ and this connotes a high threshold which may be interpreted to be ‘of the highest degree’. I accept the Agency submissions that there is insufficient evidence Mr Zohiab’s impairment is of the highest degree and the same may be said of the ‘very high support needs.

22. SDA is reserved for exceptional cases in the scheme. I accept that Mr Zohiab requires support. However, there is limited probative evidence to demonstrate that his support needs fall within the ‘very high’ level in accordance with the SDA rules.

23. I accept the Agency’s closing submissions that Ms Patterson’s recommendations around Mr Zohiab’s housing requirements can be found on the general market. The recommended features included: more space for his assistance dog and his equipment, single storey, adjustable lights, locations away from noisy roads. [114]

    [114] Agency closing submissions.

24. I do not accept Ms Patterson’s recommendations around Mr Zohiab requiring safety glass, robust walls, and a lockable kitchen. I accept Dr Hatzipetrou’s evidence that there was insufficient evidence to support the rationale for these recommendations.

25. Dr Hatzipetrou provided a number of recommendations based on his experience and file review. He agreed with Ms Patterson that Mr Zohiab’s current residence was unsuitable in several respects. I note this consideration does not bear upon a participant’s eligibility for SDA.

    Conclusion on Rule 12

26. Based on the evidence, I am satisfied that Mr Zohiab does not have an extreme functional impairment under Rule 12 of the SDA rules in relation to his psychosocial impairment nor his sensory impairment. There is no contemporaneous clinical evidence regarding Mr Zohiab’s physical impairments.

    HIGH SUPPORT NEEDS

    Rule 13 of the SDA Rules: Does Mr Zohiab have very high support needs?

27. Rule 13 of the SDA Rules prescribes the criteria a participant must satisfy for the requirement of having ‘very high support needs.’ It provides as follows:

    When a participant has a very high support needs

    (1) A participant has very high support needs if:

    (a) the participant has lived in specialist disability accommodation for extended periods and living in that accommodation has impacted on the capacity of the participant to transition to alternative living arrangements and support; or

    (b) the participant has a very high need for person-to-person supports, either immediately available or constant, for a significant part of the day and either:

    (i) there are limitations in the availability, capacity or capability of the participant’s informal support network or risks to its sustainability; or

    (ii) the participant is at risk or poses a risk to others, and that risk could be mitigated by the provision of specialist disability accommodation, having regard to the participant’s response to risk and the interaction of the participant with the environment.

    (2) For the purposes of assessing whether a participant has very high support needs, the CEO may have regard to:

    (a) any assessment or examination conducted in relation to the participant, including any assessment or examination requested by the CEO under paragraph 36(2)(b) or 50(2)(b) of the Act; and

    (b) the daily support requirements of the participant; and

    (c) any assessment tool specified by the CEO for the purposes of this paragraph; and

    (d) any other matters that the CEO considers appropriate.

28. Mr Zohiab has not previously resided in SDA, therefore Rule 13(1)(a) of the SDA Rules is not relevant in this review.

    Does Mr Zohiab have a very high need for person-to-person supports either immediately available or constant, for a significant part of the day – Rule 13(1)(b) of the SDA Rules?

29. To satisfy Rule 13(1)(b) of the SDA Rules, Mr Zohiab must satisfy the Tribunal that he firstly, has a very high need for person-to-person supports either immediately available or constant, for a significant part the day and secondly that either:

    ·There are limitations in the availability, capacity or capability of Mr Zohiab’s informal support network or risks to its sustainability; or

    ·Mr Zohiab is at risk or poses a risk to others and that risk could be mitigated by the provision of SDA, by having regard to Mr Zohiab’s response to risk and the interaction of Mr Zohiab with the environment.

    Does Mr Zohiab have a very high need for person-to-person supports either immediately available or constant, for a significant part of the day?

30. Mr Zohiab contends that he meets the requirements of Rule 13(1)(b) of the SDA Rules.

31. The Agency contends that Mr Zohiab does not have a very high need for person-to-person supports, either immediately available or constant or for a significant part of the day as defined by Rule 13(1)(b) of the SDA Rules.[115] The Agency referred to the following evidence:

    ·Mr Zohiab gave evidence he requires support with transfers using his transfer board and also some assistance from his wife with dressing;

    ·Mr Zohiab stated that because the bathroom is upstairs in his chosen rental property, and he cannot mobilise on stairs, he cannot access the upstairs shower;

    ·If Mr Zohiab resided in single-level or ‘more appropriate accommodation’, his reliance on both formal and informal supports would decrease;

    ·Ms Patterson recommends 8 hours per weekday and 6 hours per weekend day of support worker assistance for Mr Zohiab;

    ·Ms Nicholls’ report described Ms Patterson’s recommendations as ‘relying on self-report with minimal objective clinical assessment’ and that she did not agree with the number of assistance hours recommended for Mr Zohiab; and

    ·Ms Nicholls’ opinion that Mr Zohiab’s needs for care and assistance was made on the basis of assessments[116] which were inappropriate assessment tools for him.

    [115] Agency closing submissions.

    [116] Oral evidence of Ms Nicholls were she referred to limitations of both the CANS and the MOCA tools in assessing Mr Zohiab’s functional capacity.

32. I accept the Agency’s closing submissions that:

    ·The evidence is unclear regarding how much person-to-person support that Mr Zohiab requires in the absence of a contemporaneous functional capacity assessment;

    ·Mr Zohiab uses a support worker for ‘around four or five’ hours per day;

    ·Mr Zohiab uses the support worker assistance not just for person-to-person support. Other assistance is provided such as cleaning, and dealing with laundry;

    ·The four or even five hours of support worker assistance per day does not represent a ‘significant part of the day’ and therefore does not represent a ‘very high supports need;’

    ·There was no evidence provided regarding a Behaviour Support Plan nor data regarding behaviours of concern. Therefore, Dr Hatzipetrou was unable to identify or provide an opinion on Mr Zohiab’s current risk profile.

33. I am not satisfied that the evidence establishes that Mr Zohiab requires person-to-person support either immediately available or constant for a significant part of the day. I acknowledge Mr Zohiab’s and Ms Magar’s statements around her considerable caring role for Mr Zohiab and the filed material.[117] I note Ms Magar elected not to give oral evidence. However, in the absence of probative contemporaneous evidence I must balance evidence-based reporting before the Tribunal against the requirements of the legislative criteria.

    [117] EB-1, A18.

34. Mr Zohiab’s person-to-person supports are confined to approximately 4 – 5 hours per day.[118] This support is used flexibly throughout the day. Within the 4 – 5 hour daily support period, Mr Zohiab receives person-to-person support in relation to his daily activities. These include self-care, grooming, meals and house cleaning and also some social, community and civic participation. There was limited probative evidence before the Tribunal to suggest that these activities could not be completed within the 4 – 5 hour daily time frame.

    [118] EB-1, pages 105-107.

35. I cannot be satisfied on the evidence that 4 – 5 hours per day meets the level of what can be considered a ‘very high need for person-to-person supports, either immediately available or constant, for a significant part of the day.’ This means that Mr Zohiab is without any formal person-to-person supports for a large part of the day, for approximately 19 hours per day.

1. I conclude that Mr Zohiab does not have a very high need for person-to-person supports either immediately available or constant, for a significant part of the day.

2. Rule 13(1)(b) of the SDA Rules is not satisfied. Mr Zohiab does not have a very high support needs for the purposes of Rule 13 of the SDA Rules. [119]

   [119] HRZI and National Disability Insurance Agency [2023] AATA 481 [208].

   Is Mr Zohiab eligible to receive support for SDA?

3. Mr Zohiab does not meet the criteria under either Rule 12 or Rule 13 of the SDA Rules. Therefore, Mr Zohiab does not meet the eligibility requirements prescribed under Rule 11 of the SDA Rules.

4. Mr Zohiab is not eligible to receive funding for SDA as a support under the scheme.

   Subsection 34(1) of the NDIS Act

5. As previously stated, subsection 34(1) of the NDIS Act is cumulative.

6. Paragraph 34(1)(f) of the NDIS Act requires that a support funded under the scheme must be an ‘NDIS support.’

7. Item 19 of Schedule 2 to the Transitional Rules provides that the following ‘Housing and community infrastructure’ is not generally an NDIS support where it states:

   (b) Housing for people with disability, other than participants eligible for specialist disability accommodation;

8. Based on this, funding for accommodation, other than SDA, is not permitted under the scheme as a reasonable and necessary support.

9. With respect to this issue, I also refer to Schedule 1 to the Supports Rules, which includes the following provisions:

   7.19 The NDIS will be responsible for:

   (a) supports to assist a person with disability to live independently in the community, including by building their capacity to maintain a tenancy, and support for appropriate behaviour management; and

   (b) home modifications for accessibility for a person in private dwellings; and

   (c) home modifications for accessibility for a person in legacy public and community housing dwellings on a case-by-case basis but not to the extent that it would compromise the responsibility of housing authorities to develop, maintain and refurbish stock that meets the needs of people with disability; and

   7.20 The NDIS will not be responsible for:

   (a) the provision of accommodation for people in need of housing assistance, including routine tenancy support and ensuring that appropriate and accessible housing is provided for people with disability; or

   (b) ensuring that new publicly-funded housing stock, where the site allows, incorporates Liveable Housing Design features; (Tribunal emphasis underlined)

10. As Mr Zohiab is not eligible for SDA, the scheme does not fund appropriate and accessible housing for people with a disability:

    Furthermore, the availability of public funded disability accommodation and the market rental cost of such accommodation are not relevant considerations under the scheme.’[120]

    [120] Keys and CEO, NDIA [140].

11. I note both Dr Hatzipetrou and Ms Patterson provided evidence that Mr Zohiab’s current accommodation is unsuitable for him. I acknowledge that Mr Zohiab gave evidence of difficulties in seeking a rental property in the open market. However, these two factors do not bear relevance on whether SDA is a reasonable and necessary support.

12. The majority of solutions recommended by Ms Patterson are not SDA. They were recommendations for the following features: more space, quiet, single-level, 3-bedroom, space for a dog, adjustable lighting. These recommendations are all things available in mainstream housing or alternatively things that may be incorporated into existing housing as also explained in Dr Hatzipetrou’s evidence.

13. There were two of Ms Patterson’s recommendations that are within the scope of SDA. The first was a ‘separate lockable kitchen’. I accept Dr Hatzipetrou’s evidence that there was insufficient evidence to justify a lockable kitchen. A lockable kitchen addresses behavioural issues. There was insufficient evidence that described in detail the extent of Mr Zohiab’s behaviours of concern and their frequency and what the behaviours involved. I note that Ms Patterson’s recommendations were not justified on the basis of probative evidence.

14. The second of Ms Patterson’s recommendations were that Mr Zohiab required a ‘robust build in order to prevent damage to property. There was limited evidence regarding the extent of property damage nor the frequency of such damage that occurs at Mr Zohiab’s residence. I prefer Dr Hatzipetrou’s evidence where he suggested other more cost-effective solutions regarding damage to property. Dr Hatzipetrou recommended increased space, more appropriate layout and treatment for the underlying cause of Mr Zohiab’s behaviours of concern from other health practitioners

15. It is open to Mr Zohiab to pursue more appropriate accommodation with the features recommended by Ms Patterson.

16. I am satisfied that the reassessment date for Mr Zohiab’s SOPS should be of 12 months duration.

17. I am satisfied that Mr Zohiab’s plan management remains as self-managed, in keeping with his preference.[121]

    [121] Oral evidence of Mr Zohiab. R5, pages 278-282.

    DECISION

18. Pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is affirmed.

I certify that the preceding 200 (two hundred) paragraphs are a true copy of the reasons for the decision herein of General Member S Smith.

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

Associate

8 July 2025

Dates of hearing:	27, 29, 30 May 2025
Applicant:	Self-represented
Solicitors for the Respondent: Counsel for the Respondent:	Moray & Agnew Lawyers Mr Freeburn of Counsel