The Applicant stated that the requested support is not excluded by Schedule 2 as it can be distinguished by virtue of being provided in her home, outside of a clinical setting and that it is possible for non-nurses to be trained to deliver dialysis.
The Applicant contends that the requested support is capable of falling under the category of "Community nursing care" set out at item 12 of Schedule 1 of the Transitional Rules or in the alternative is capable of falling under the category "Disability-related health supports" set out at item 16 of Schedule 1 of the Transitional Rules.
I am not persuaded by the Applicant's contentions, as I find dialysis remains the clinical treatment of a health condition regardless of where it is delivered. As such its location and who administers, does not change its primary purpose which is to treat a medical condition.
The Respondent states that treating dialysis as a disability-related health support is not consistent with the NDIS Act as a whole. The Respondent states the delivery of dialysis is the responsibility of the Western Australian health system. The Respondent states that to the extent that the delivery of dialysis to Ms Abraham in Fiona Stanley Hospital places her at risk, is a matter for those responsible for the delivery of that care.
I agree with the Respondent's position and further note the specific allocations and priorities of the Western Australian health system are outside of my jurisdiction in this matter.
I found Ms Stacey to be an impressive expert witness and give weight to her written and oral evidence as her knowledge, competency and patient focus was clearly evident. Her evidence regarding capacity issues at Fiona Stanley Hospital dialysis unit and the trauma and distress that Ms Abraham experiences at the hospital was clear. I take into account her evidence regarding Ms Abraham's blood pressure complications, in that nursing support for her dialysis ought to be performed by a person with a medical background, regardless of Ms Abraham's physical impairments.
Accordingly having regard to the Transitional Rules Schedule 2 items 12(a) and (r) I am not persuaded that the NDIS should fund the requested nursing support as I find this would be incongruent with the purpose of the scheme. I find the NDIS' responsibility for supports required are due to the impact of a person's impairment on their functional capacity and their ability to undertake activities of daily living versus the health system's responsibility for the treatment of health conditions, including ongoing or chronic health conditions, which in-home dialysis clearly falls within.
I find that 30 hours a week of nursing support for in-home dialysis cannot be funded by the NDIS as it is not an NDIS support: s34(1)(f) NDIS Act. The Transitional Rules Schedule 2 reiterates this firm boundary as Items 12(a) and (r) provide if a support meets the following descriptions, it is not an NDIS support:
[2]
(a) the diagnosis, early intervention and clinical treatment of health and dental health conditions, including ongoing or chronic health conditions;
>
> ...
[3]
(r) sub-acute palliative care, including in-patient and out-patient services delivered in the person's home or clinical setting
[4]
The Support Rules r 7.5 clearly states that the NDIS will not be responsible for clinical treatment of chronic health conditions noting the scheme provides support for disabilities that may result from impairments including medical conditions, however not for the condition or treatment of the condition itself.
As I find that nursing support to assist with dialysis is not an NDIS Support, the request for 30 hours a week of nursing support to assist with dialysis cannot be included in Ms Abraham's SOPS.
I understand that this will be a difficult decision for Ms Abraham to receive given the time and energy she has invested in this entire process. My decision does not seek to diminish Ms Abraham's experience, rather my finding is based on the requisite legislative criteria that is the responsibility of the NDIS to fund.
[6]Beezley v Repatriation Commission[2015] FCAFC 165 at [68] per North, Tracey and Mortimer JJ.
Legislation Cited (8)
Disability Insurance Scheme Act 2013
Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.](/cgi-bin/viewdoc/au/legis/cth/num_act/ndisatnbotn1a2024683/index.html) [1) Act 2024
Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024
Review Tribunal Act 2024
Appeals Tribunal Act 1975
Review Tribunal (Consequential and Transitional Provisions No.](/cgi-bin/viewdoc/au/legis/cth/num_act/artatpn1a2024807/index.html) [1) Act 2024
Disability Insurance Scheme (Supports for Participants) Rules 2013
Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024
Cases Cited (3)
Abraham and National Disability Insurance Agency (NDIS) [2025] ARTA 2459 (17 November 2025)