1. The Applicant's first known NDIS plan commenced in May 2022.[18] It had some $16,000 in funding, primarily for capacity building supports.
2. The Applicant's second NDIS plan commenced September 2024.[19] It made provision for approximately $85,900 in funding, across both core supports and capacity building supports.
3. The Applicant sought internal review of the second plan decision on or about 6 December 2024, seeking an increase in funding generally along the lines of the disputed supports summarised in paragraph [4] (above) of these reasons.[20]
4. On 13 December 2024, the internal reviewer decided to confirm the second plan decision.[21] In other words, the Agency decided that there would be no change to the Applicant's second SoPS.
5. By application dated 8 January 2025,[22] the Applicant sought external review by the Tribunal of the second plan decision (as confirmed by the internal review).
6. The Applicant's second SoPS was stated to be for 12 months' duration (from September 2024), and to have a 're-assessment date' of 24 September 2025 for the purposes of s 33(2)(c) of the NDIS Act.[23]
7. The Agency informed the Applicant and the Tribunal that 'there was no re-assessment of the Applicant's [SoPS] before the re-assessment date', and that 'the Respondent's computer systems automatically continued the supports on a pro-rata basis, for a further 12 months.'[24]
8. Consistent with their obligation as a model litigant, the Agency identified that different views have been taken by the Tribunal regarding whether such administrative 'continuation' of a previous SoPS is, in fact, lawful.[25] This Tribunal considers that the better view of the legislative framework is that any such 'continuation' of a SoPS decision (as an 'old framework plan')[26] must be taken to be either a 'variation' of the previous SoPS (under ss 47A and 49(1)(b)(i) of the NDIS Act), or a decision to prepare and approve a new SoPS (under s 49(1)(b)(ii) of the NDIS Act).
9. In the event, a new (third) SoPS was approved by the Agency, and came into effect for the Applicant, on 8 December 2025, with 12 months' duration.[27]
10. The characterisation of the third plan as being a 'new plan' is clear from the terms of the SoPS itself, including the specification of the plan duration and the re-assessment date. This unilateral change in the reviewable decision was permitted by s 103(2) of the NDIS Act in spite of s 31 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) because the application of the ART Act procedural provisions is subject to contrary intention in the relevant enabling legislation.[28] Section 103(2)(e) of the NDIS Act provides that the review is taken to include a review of the decision to approve the third SoPS.

1. The NDIS Act does not specify the duration of a participant's (old framework) plan. Rather, s 37(1) of the NDIS Act provides that a participant's plan comes into effect when the Agency has (a) received the participant's statement of goals and aspirations; and (b) approved the SoPS.
2. Sections 33(2)(c) and 33(2)(e) of the NDIS Act then require the Agency to specify within a SoPS the date by which, or the circumstances in which, the Agency must re-assess the plan and the management of other aspects of the plan (respectively).
3. A participant's plan ceases to be in effect at the earliest of (a) when the plan is replaced by another plan; (b) if it is a new framework plan, after the period specified in the plan; or (c) when the participant ceases to be a participant.
4. The Applicant sought that the Tribunal vary the duration of his current SoPS, from 12 months to three years, because his needs are relatively stable whilst he is completing his university studies.[29]
5. At hearing, the Agency initially resisted this proposition, arguing that Agency policy was that any SoPS should generally be for 12 months' duration.
6. It may be accepted that the Agency has published a series of 'guidelines' in an exercise of executive power to guide discretionary decision-making under the NDIS Act.[30] It has been held that the adoption of such policies promotes values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike.[31] In Clive Elliott Jennings & Co Ltd v Western Australian Planning Commission [2002] WASCA 276, Barker J observed:

[25] Much has been written about the use of policy in administrative decision‑making. Administrators do not act unlawfully in adopting policies to structure their discretionary powers. Indeed, courts have accepted that it is desirable that they should do so: British Oxygen Co Ltd v Minister of Technology [1970] UKHL 4; [1971] AC 610; R v Eastleigh Borough Council; ex parte Betts [1983] UKHL 9; [1983] 2 AC 613; Sawyer v Secretary to Department of Primary Industry (1998) 15 ALD 742. However, an administrator exercising discretionary power will be found to have acted ultra vires if the discretion is exercised inflexibly, by application of a policy without regard to the merits of a particular case, as the decision in Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 illustrates ... > > [26] A relevant policy, provided it is not ultra vires, may therefore be regarded as one relevant consideration which the administrator is, effectively, bound to take into account. In Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, the Full Federal Court held that the Administrative Appeals Tribunal is entitled to treat Commonwealth government policy as a relevant factor in making its decision, but is not entitled to abdicate its function of independently considering and assessing the propriety of the policy. In Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, Brennan J confirmed the freedom of the Administrative Appeals Tribunal to apply or not apply the policy. He noted, however, that departures from government policy would be "cautious and sparing", occurring only where there were "cogent reasons": 644 ‑ 5.

7. Relevantly, the Agency's 'Creating your plan' Guideline dated 23 October 2025 provides (at page 31):

How long will your plan go for? > > Everyone has different goals, living situations, and circumstances. So, we'll work with you to decide how long it will be before we create your next plan. > > We think about how long you want your plan to go for. We also think about your situation and what plan length will best meet your needs. > > If your living and support needs are stable and not likely to change significantly > > Your plan will generally go for: > > • 5 years if you're aged 9 and over > > • 2 years if you're younger than 9. > > With a longer plan: > > • you can plan ahead, access supports that meet your needs now, while also working towards your goals over time. This is because you know you have funding for a longer time > > • it will generally be a longer time before your next plan reassessment, which should mean a smoother experience for you, your family and providers as we won't need to meet with you about your plan as much, unless you want to. > > Longer plans give you more stability by giving you certainty about your funding over a longer period of time. > > We may check in with you during your plan to make sure you have the supports you need to work towards your goals. > > If your circumstances change during your plan, and you need more or different supports, you can contact us. We'll talk to you about whether your plan can be used flexibly to continue to meet your needs or if we need to make changes.

8. It follows from the above extract that, contrary to the Agency's initial submission, the Executive's 'policy' is that an adult participant's plan will, generally, be for five years' duration provided their living and support needs are stable and are not likely to change significantly.
9. The Tribunal accepts, on the evidence before it, that the Applicant's living and support needs are relatively stable. The Applicant is presently in his second year of studying for a Bachelor of Commerce at a Western Australian university. It notes that the 'Applicant's Statement of goals and aspirations' are outdated because they refer to his prior circumstances, including living and study arrangements (as they existed at least 12 months before the review hearing) and there have been material changes in those circumstances.[32] For example, the Applicant now lives in a separate residence and is completing tertiary rather than secondary education. Nevertheless, it is clear from the evidence before the Tribunal what the Applicant's goals and aspirations are today.
10. During the hearing, the Tribunal put to the parties that it was prepared to accept the Applicant's request that his SoPS be specified to have three years' duration, but that it may specify the date by which the Agency must 're-assess' the plan as being 18 months from the date of the Tribunal's decision. Both parties agreed with that proposal.

1. The Tribunal respectfully agrees with Senior Member Shepherd in Re Fong and National Disability Insurance Agency [2026] ARTA 98 that there is a distinction between 'plan duration' and the 'management of funding for supports under the plan', including any specified 'funding periods' ([86]).[33]
2. Based on the evidence at hearing, the Tribunal has made provision for the Applicant's 'consumable' funding within the SoPS to be provided in a lump sum way in any given funding period (so that the whole consumable product can be purchased with those funds). The Tribunal has made similar arrangements for the dietetics funding given evidence about how this will likely be used to best support the Applicant's needs.

1. The parties appeared in-person before the Tribunal on 20 January 2026. Mr O'Malley was represented by his mother. The Agency was represented by Ms Reynolds of counsel, instructed by Mr Roosendaal of Sparke Helmore Lawyers.

1. At the hearing, the Tribunal appointed the Applicant's mother as his 'litigation supporter' under s 67(1) of the ART Act. It did so on the basis that the Applicant had impaired decision-making ability for the limited purposes of prosecuting the review hearing.
2. Prior to early 2025, the Applicant's mother had been his 'child representative' under s 74 of the NDIS Act. Whilst the Applicant's mother is also reportedly a participant of the NDIS, there is no evidence before the Tribunal to the effect that her own decision-making is impaired.
3. At the time of the review hearing, the Agency had yet to deal with the Applicant's separate request that his mother be appointed as his 'plan nominee' under s 86 of the NDIS Act.
4. Prior to the appointment of the Applicant's mother as his 'litigation supporter', the Tribunal explained the requirements of s 67 of the ART Act (and the contents of the Administrative Review Tribunal (Litigation Supporter) Practice Direction 2025 (Litigation Supporter Practice Direction)).[34]
5. The Tribunal's assessment that the Applicant had impaired decision-making ability was informed by the multidisciplinary assessment from March 2021 and the Applicant's will and preferences. To be clear, the Tribunal was only satisfied that the Applicant's decision-making ability was 'impaired' for the purposes of the review hearing (not his decision-making ability more broadly). The Tribunal was satisfied, based on the multidisciplinary assessment, and the evidence given in the review, that the presumption of decision-making ability had been rebutted because of the Applicant's social communication and behavioural impairments. It was clear to the Tribunal that the Applicant was reliant upon his mother to make appropriate decisions about the supports he was seeking (or needed) and that he wanted his mother to represent him in the review and with respect to his interactions with the Agency. The Applicant's mother consented to that appointment, and the Tribunal was satisfied that there would be no real conflict of interest between the Applicant and his mother regarding her representation of him in this review. For the avoidance of doubt, the Tribunal was satisfied that the Applicant's mother would act in a manner that promotes the personal and social wellbeing of her son. There was also no evidence to suggest that the Applicant's mother would be disqualified from appointment for any of the reasons specified in paragraph [3.6] of the Litigation Supporter Practice Direction.
6. The Agency took a neutral position on the appointment of the Applicant's mother as his litigation supporter and undertook to internally review the status of the pending plan nominee appointment.

1. The following documents were marked as exhibits:

(a) Joint Hearing Bundle, including some of the parties' submissions (956 pages) (Exhibit 1); > > (b) The Applicant's current NDIS plan and SoPS dated 8 December 2025 (32 pages) (Exhibit 2); and > > (c) Multidisciplinary report regarding the Applicant's ASD diagnostic assessment dated 19 March 2021 (16 page) (Exhibit 3).

(a) the Applicant (by video-link); > > (b) the Applicant's mother; and > > (c) Mr B C Fielke, occupational therapist (by video-link).

1. In approaching the information and evidence, the Tribunal notes that:

(a) its procedures are generally discretionary and are to be based upon the circumstances of the proceeding, including any provisions of the enabling act and the ART Act and rules;[35] > > (b) it must act with as little formality and technicality as a proper consideration of the matters before the Tribunal permits;[36] > > (c) it is not bound by the rules of evidence but may inform itself on any matter in such manner as it considers appropriate;[37] and > > (d) the procedural flexibility accorded to the Tribunal does not absolve it from the obligation to make findings of fact based upon material which is logically probative, in which the rules of evidence provide a guide.[38]

2. The legislative context to this review includes the principles set out at ss 4, 5, 17A, and 31 of the NDIS Act, including that the Tribunal's assessment of the merits of Mr O'Malley's plan, must, 'so far as reasonably practicable':

(a) be individualised and directed by Mr O'Malley; > > (b) where relevant, consider and respect the role of family, carers, and other persons who are significant in the life of Mr O'Malley; > > (c) where relevant, recognise and respect the relationship between Mr O'Malley and his family and carers; > > (d) consider the availability to Mr O'Malley of informal support and other support services generally available to any person in the community; > > (e) support the community to respond to the individual goals and needs of Mr O'Malley; > > (f) be underpinned by the right of Mr O'Malley to exercise control over his own life; > > (g) advance the inclusion and participation in the community of Mr O'Malley with the aim of achieving his individual aspirations; > > (h) maximise the choice and independence of Mr O'Malley; > > (i) facilitate tailored and flexible responses to the individual goals and needs of Mr O'Malley; and > > (j) provide the context for the provision of disability services to Mr O'Malley and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.

1. The Applicant gave brief oral evidence. He testified that he was completing his third semester of university, which he found hard, and that he was presently working for his mother at an ASX listed company in the Perth CBD.
2. In cross-examination, the Applicant told the Tribunal that he catches public transport to/from both work and university. He said that he had a good relationship with his occupational therapist, Ms E T Staples. Ms Staples was reported to be helping him with his 'organisational skills' ('helping [...] with living appropriately' and with creating independence around the home) and in applying for a 'Companion Card'.[39] The Applicant indicated that he did not have a good relationship with his brother, with whom he resides (in a property owned by their mother), and that they (the Applicant and his brother) sometimes fight.
3. The Applicant was asked about his previous use of NDIS Supports. He referred to one of his support workers, 'Kim'. He described this person as being 'a great help to me in maintaining the house and assisting me with my shopping and such'. However, the last time such support worker assistance was, in fact, provided to the Applicant was in November 2025, when that person took leave. This was said to be because the Applicant did not want another support worker.
4. The Applicant was asked to comment about his 'finding and keeping a job funding' supports. He said he was not sure if he found that helpful, but 'I suppose I would not be doing it if they did not encourage me'. However, he was then asked by his mother when he last used that support, and he said that he had chosen not to use it because he was working for his mother.
5. Counsel for the Agency asked the Applicant about his intended use of the companion card. He said that there had been some discussion about using it to go to the gym because he was not active enough otherwise. He was asked whether it was intended that he would use the gym or attend extracurricular activities at university. He said that they exist. The Applicant's mother then asked him whether he would go to them and the Applicant replied, 'in what circumstances?'. Counsel asked the Applicant whether he would like to attend a gym with a support worker. He said 'it is obviously not something I would like to do. If I would like to do it, I would not need a support worker to be coming with me and having me do it.'

1. The Applicant's mother testified that her lived experience is that the Applicant 'needs to see importance in the issue. He says that he does not need anything, for example - exercise. It takes a lot of therapies for him to see the value in something. Once he does, he will participate and learn to do things himself - but you need to have that "buy-in" from him'.
2. Mrs O'Malley told the Tribunal about the Applicant's living arrangements, and how these have relatively recently changed. It was observed that she was employing the Applicant as a means of 'keeping an eye on him'. She thought that the Applicant should be using his NDIS Supports to help him travel to where he needs to go, including following/mapping bus routes and things like that with the Applicant. Mrs O'Malley told the Tribunal about the staged process of developing a transport route for the Applicant and how he could use public transport once they had mapped the route and staged it out. However, she testified that the Applicant could not cope with, or resolve, changes to the route, like, for example, moved bus stops. It was noted that the Applicant did not get on with his brother (with whom he lives) and that he (the Applicant) takes time to accept new assistance. Mrs O'Malley testified that the supports the Applicant was seeking in this review were what Ms Staples and she considered would be useful to the Applicant and were the supports that they may be able to convince the Applicant to use.
3. In terms of the requested dietetics, Mrs O'Malley testified that she had recently seen a dietician for her own needs and personally considered the advice she received in those sessions to be helpful regarding eating habits and quality of food. She was questioned regarding why 22.5 hours of this support was sought by the Applicant and why this nutritional advice could not, for example, be obtained from the Applicant's medical practitioner. She testified that the Applicant needs multiple sessions of therapy and reinforcement for any lessons to be learnt and that the Applicant does not attend upon his GP because he does not see the value in it. When asked why the Applicant would go to the dietician in those circumstances, she admitted that he would likely not and that he would need to be convinced of it. Mrs O'Malley testified that her intention was to establish with the Applicant the logical connection between him feeling unwell and not eating, and to reinforce consistency of meals, and that this was also related to the request for meal preparation and delivery.
4. Mrs O'Malley observed that the Applicant does not like to leave his room and that he struggles with shopping for himself. She was asked by the Agency what was stopping the Applicant from ordering things like his groceries online (including delivery). She replied that the Applicant did not like spending money and that he does not trust other people touching his food. Mrs O'Malley thought that she could convince the Applicant to use a meal delivery service for a period and that this would cement in him what a proper meal looks like and what he will feel like if he has proper nutrition.
5. Mrs O'Malley testified that the STA was sought to provide the Applicant's brother (and his girlfriend) with a break from the Applicant. It was observed that the Applicant regularly leaves his dirty dishes in the kitchen until he runs out of clean dishes and that this was a source of regular conflict between the Applicant and his brother. Mrs O'Malley was asked what precluded the Applicant from having short breaks from his present living arrangements with other family members. She frankly admitted that the Applicant is difficult to live with. Mrs O'Malley referred to her preparation for her two sons leaving the family home when they each turned 18 (the Applicant is the youngest child of the two) and how she had deliberately gone overseas for periods to get them both used to having less parental support. One of these trips was for six weeks' duration, and the Applicant went to stay with his aunt for that period. However, that arrangement did not work for more than two weeks because of the Applicant's rigidity. Similarly, it was observed that the Applicant had struggled to obtain and retain employment other than with his mother. Against this, Mrs O'Malley also told the Tribunal about a recent international holiday that the Applicant took with a friend alone, and how her suspicions were that this friend had played a significant caregiver role during the trip.
6. Mrs O'Malley testified that the Applicant uses his noise cancelling earphones everywhere and that he uses his mobile telephone to organise things. She said that the Applicant was quite visual and that, for example, the laundry gets done when the basket is overflowing.
7. Lastly, Mrs O'Malley testified that the Applicant declined to participate in an independent functional capacity assessment requested by the Agency during the course of the review because he did not want to participate in it and they thought that the report prepared by his treating occupational therapist was sufficiently robust.

1. Ms Staples is a registered occupational therapist. She has a Bachelor of Science (Occupational Therapy) from Curtin University and has been a registered health practitioner since June 2002. She is the Applicant's primary occupational therapist at Pollen Health in North Perth.
2. Ms Staples was not made available to give oral evidence before the Tribunal. This was because she was reportedly on leave at the time of the Tribunal hearing. The Agency did not seek to summons Ms Staples to give evidence and only notified the Applicant that they wished to cross-examine her immediately prior to the listed hearing.
3. There is no rule that dictates the rejection of, or giving of no weight to, evidence which cannot be tested by cross-examination.[40] However, there were aspects of Ms Staples' various written opinions which were respectfully problematic. The Tribunal has identified the key issues with Ms Staples' opinion below. The Agency was, however, able to test Ms Staples' opinion by way of adducing alternative expert evidence and by making argument about it.
4. Ms Staples authored a functional capacity assessment (FCA) for the Applicant between December 2023 and February 2024, and when the Applicant was moving into Year 12.[41] This assessment, and that conducted by Mr Fielke on the papers (discussed below), refers to a diagnosis of 'Hypermobile Ehlers-Danlos Syndrome (hEDS)'. It was agreed by the parties that this diagnosis had not, in fact, been made for the Applicant.[42]
5. In the context of Mr O'Malley's social situation, Ms Staples identifies within her FCA that the Applicant's mother is also a participant of the NDIS because of impairments related to post-cancer disability and that the Applicant's older brother, with whom he now resides (separately from their mother), has psychosocial conditions requiring 'significant support at home'. In Ms Staples' opinion, these social circumstances mean that the Applicant 'will need to be supported in transitioning to independence without the usual utilisation of primary supports'. Ms Staples identified the Applicant's then NDIS supports as being restricted to his occupational therapist and general practitioner.[43]
6. The Applicant's goals for 2024 to 2026 were identified by Ms Staples as:

(a) to commence engagement in preparing for the workforce;

(b) to increase independence in self-care activities of daily living;

(c) to increase independence in instrumental activities of daily living, i.e. kitchen tasks, time management, budgeting, cleaning, etc., and eventually manage overnight on his own;

(d) to participate in the community and be able to attend to shopping, banking, posting items, and basic life needs;

(e) to be able to use public transport more flexibly and get his driver's licence;

(f) to be able to communicate more effectively with other people;

(g) to manage his physical health, strength, and activity tolerance to allow for task engagement; and

(h) to manage his mental health including low volition and motivation and to engage in life activities at a high and more appropriate level to meet his own needs.[44]

1. In terms of functional assessment, Ms Staples identified that:

(a) Daily routine: the Applicant requires structure to maintain function and that, in the absence of such structure, he requires his mother to 'scaffold' and push him.[45] This extends to any activity, including preparation of food, and Ms Staples observed that the Applicant would 'not go out for food and will not part with his money for it'.

(b) Mobility and motor skills: the Applicant has reduced tolerance for movement; his historical activity has been 'scaffolded' by the requirements of his school curriculum to engage in physical activity and by his mother's pushing for him to engage in physical activity, particularly in a community setting.[46]

(c) Cognition: the Applicant is very intelligent but has no natural sense of urgency or need for completion and he has limited volition.[47]

(d) Problem-solving: the Applicant requires assistance to critically analyse and solve problems in daily living and he requires guidance and 1:1 support (with multiple training sessions) prior to being able to navigate a new area or task independently.[48]

(e) Time management: the Applicant requires significant time to complete any task and this is unlikely to change.[49]

(f) Organisational skills: the Applicant has difficulty structuring tasks, making clear steps and sequencing them, recalling them, and remaining organised. He struggles with maintaining sustained attention and initiating, maintaining, and completing tasks.[50]

(g) Communication: the Applicant talks slowly and precisely and he uses American colloquialisms.[51] It was observed that the Applicant's definition of 'necessary' is akin to 'life-threatening'.[52] He has unique non-verbal communication, including slow and purposeful arm movements that are not emotionally expressive.[53] The Applicant's written expression is limited.[54]

(h) Social interaction: the Applicant has 'a limited social battery', his interactions are generally pushed by his mother, or they are at the initiation of his small group of friends.[55]

(i) Community participation: the Applicant generally only engages with considerable scaffolding (and not by his own volition) and requires repeated rehearsal before he can independently attempt a new community outing (for example attending upon a health practitioner by public transport).[56]

(j) Self-care: the Applicant can engage in self-care but generally neglects aspects of his grooming and requires prompting.[57] In terms of his eating, the Applicant has minimal difficulty with the physical aspects of it, save he avoids foods that require him to cut them up.[58]

(k) Self-management:

(i) The Applicant can engage in telehealth sessions and calls. However, he will not initiate a telephone call for socialising or for necessity without guidance/prompting.[59]

(ii) The Applicant rarely attends the shops and typically needs ample preparation time (one to two days), a budget plan, and a shopping list.[60]

(iii) The Applicant struggles with food preparation and can only prepare one dish independently.[61]

(iv) The Applicant is reliant upon others for any cleaning or household tasks.[62]

(v) The Applicant will wait until his washing basket is full until he does his laundry.[63] He does not sort that washing, does not like hanging it out and needs prompts to bring it in. He requires assistance to put it away and will never iron.

(vi) The Applicant cannot drive and is in the process of developing his skills regarding taking public transport.[64] He needs five to six repetitions with support before he can independently take public transport on a particular route.

(vii) The Applicant does not like to part with money even to meet his basic needs.[65]

(viii) The Applicant avoids making significant decisions and will leave them for his mother to make.[66] If he needs to make a decision, his processing speed slows.

(l) Emotional management: the Applicant has a generally flat and restricted affect but enjoys dry humour with his close friends and family.[67]

(m) School/work performance and learning: the Applicant struggles with written expression and critical analysis in questions presented to him in English.[68]

(n) Sensory profile: the Applicant struggles with excessive noise, prefers little to no colour, prefers not to be touched, and will eat only very specific foods.[69]

(o) Movement processing: the Applicant dislikes the sensation of movement and prefers to remain as still as possible if given the choice.[70]

(p) Activity processing: the Applicant can focus when is interested in something but has slow processing speed across all tasks.[71]

1. Using the World Health Organisation Disability Assessment Schedule (WHODAS 2.0) to assess and describe the degree of difficulty the Applicant experiences in executing tasks of daily living due to impairment, Ms Staples found the Applicant to have moderate level of disability, with severe difficulty participating in daily and community life.[72]
2. Ms Staples also used the UK-developed Health of the Nation Outcome Scales (working age adults) (HoNOS), in combination with the Life Skills Profile (Rosen & Ors, 1989; Parker & Ors, 1991) (LSP-16) instrument, to assess the Applicant's health and social functioning.[73] Areas of concern were identified with respect to cognitive functioning, depressed mood, other mental and behavioural problems, problems with relationships, activities of daily living, and with occupation. The LSP-16 indicated that intervention should be focused on self-care and tendency to withdraw from social interactions and activities.[74]
3. Applying the Care and Needs Scale (CANS; Tate, 2003/2017), Ms Staples opined that the Applicant could only be left alone for part of the day and overnight because he will not tend to his own needs without the input of an adult.[75]
4. In the FCA, Ms Staples recommended that the Applicant's SoPS include funding for

(a) driver assessment and training;

(b) finding and keeping a job;

(c) occupational therapy;

(d) dietary assistance including food delivery and preparation;

(e) increased physical activity;

(f) support workers to assist with accessing the community; and

(g) psychology and mentoring to assist with acceptance of disability and independent decision-making.

1. With his review application in January 2025, the Applicant provided the Tribunal with a two-page letter from another occupational therapist at Pollen Health, Ms A C Burrow Ali, dated 8 January 2025.[76] Ms Burrow Ali has been registered since 2020 and holds a Bachelor of Science (Occupational Therapy) (Hons) from Curtin University. In the letter, she advises that the Applicant is now living outside of the family home with his brother. She states that the Applicant is 'struggling with the demands of independent living and he is malnourished as a result.' It was observed that the Applicant has 'violent altercations' with his brother, and that the Applicant is unwilling or unable to accept support worker supports. Ms Burrow Ali advocates for funding for daily occupational therapy and for further psychology (to be funded by the NDIS rather than Medicare).[77] She also suggests that meal preparation funding is necessary because of the Applicant's 'malnutrition' and that there is no or limited informal supports available to the Applicant. Lastly, she recommends that STA funding be provided 'until appropriate skills can be developed with therapy'.
2. In June 2025, Ms Staples provided a 52-page response to 'targeted questions' that had been asked by the Agency.[78] In the summary section, Ms Staples observes that:

[The Applicant] previously lived in the family home with his mother and brother. For the last 6 months he has been living in a property owned by his mother with his brother (aged 20) and his [brother's] partner (aged 20). Informal supports include his mother and his brother. His brother works and attends university and there are significant issues with sibling rivalry and [the Applicant] does not utilise his brother for practical support. His brother ensures household bills are paid, any necessary household repairs are communicated to his mother and keeps an overall watch on [the Applicant's] physical location. Any move towards offering advice, reaching an agreement or practical support results in altercations and some of these are physical. Family harmony can be improved by spending a few days away from each other every few months as this is consistent with how often they clash. His mother refuses to have him live with her anymore because she is burnt out, this may have been avoided by provision of more supports earlier. She is only willing to assist with the plan review with the view to handing over to a support coordinator following this review. > > [The Applicant's] functional capacity assessment report dated February 2024 and the supports recommended within that report remain largely unchanged. > > As detailed in a letter dated January 2025 provided in support of an ART review [the Applicant] is having difficulty adjusting to the demands of independent living and as a result there are immediate concerns for his health and wellbeing. Since moving from the family home [the Applicant] has demonstrated rapid weight loss (9kg / 13% of bodyweight in 5 months) and reduced appetite, a deterioration in baseline fitness, fatigue with minimal exertion, and a general reluctance to move.[79]

3. The Tribunal was informed, at the January 2026 hearing, that the Applicant had mostly regained the weight that he had lost. His mother opined that the weight loss could be correlated with the provision of leftovers to the Applicant by various family members after family events and the decrease in such events as the calendar year progresses.
4. Ms Staples annexed a 'Vineland Adaptive Behaviour Scales, Third Edition (Vineland-3) Parent/Caregiver Report' to her June 2025 report, dated 11 June 2025. This was completed by the Applicant's mother, and measures adaptive functioning (communication, daily living skills, and socialisation) against that of others at the examinee's age. Based on the mother's reporting, the Applicant scored poorly when compared with his peers (at the same age, from a sample population in the US).[80]
5. Ms Staples indicated in her June 2025 report that Pollen Health have been treating the Applicant on a weekly basis for four years.[81] Historically, treatment was clinic-based, however this has now transitioned to being community-based (including in-home sessions).[82] It was observed that the Applicant's slow processing speed and initiation difficulties meant that he required extended session times.[83] She stated that the Applicant 'has shown improved engagement and regulation when working with qualified allied health professionals for longer sessions. His therapeutic alliance and respect for professional expertise are important factors in his progress and cannot yet be replicated through support work alone.'[84]
6. Ms Staples considered in June 2025 that the Applicant required 'focused and ongoing support' in the areas of:

(a) initiating, sequencing, and completing hygiene tasks;

(b) feeding and eating (including cooking); and

(c) instrumental activities of daily living (budgeting, shopping, transport, and cleaning/gardening/domestic tasks). In the last respect, the Applicant requires continued prompting.[85]

1. Ms Staples considered that the then therapy hours provided for in the second SoPS were not sufficient to address the breadth and complexity of the Applicant's needs.[86] The key limiting factors were identified as the Applicant's low physical fitness and movement hesitancy (including the need for prompting), severe deconditioning, lack of regulated movement, and a need for expert supervision of physical reconditioning due to the Applicant's executive functioning deficits and history of prior injuries when unsupervised.[87] Ms Staples thought the Applicant's physical and sensory-motor limitations reduced his capacity to manage household responsibilities without 'structured, professional input'.[88] It was noted that the Applicant historically demonstrated limited engagement with support workers due to 'deeply held, fixed beliefs about their role and perceived value'.[89] Reference was then made to the introduction of the support worker known as 'Kim' (discussed above) and how the introduction of this support had required 'direct OT involvement to scaffold the relationship and embed support strategies'.[90] Ms Staples considered 'OT-led intervention to be essential', with support workers reinforcing developed foundational functional skills under guidance.[91] She thought the Applicant's current diet was nutritionally poor and that comprehensive support was required from meal planning, to preparation and cooking.[92]

1. Ms Staples made the following recommendations regarding assistive technology as follows:[93]

Supports safe cutting. Supports safety with emotional dysregulation.

Stabilises food [preparation] area. Supports safety with emotional dysregulation.

Minimises manual handling and increases hygiene. Supports hygiene concerns resulting from rigid thinking.

Supports sequencing and visual cueing (e.g., green = chopping, red = stirring).

Reduces need for motor planning and sequencing when preparing meals.

Visual kitchen labels (e.g., picture-based pantry or fridge labels)

Assisting with executive functioning and time management. Calendar resources, food planning and budgeting resources.

Colour-coded or visual hygiene kits (shampoo, soap, etc.)

Supports organisation of bills, medications, chores.

Reduces auditory overload in shared housing or community.

Provides oral or tactile input in a socially acceptable way.

Enables doorbell to be heard when wearing noise cancelling headphones. Enables the person at the door to be identified prior to opening door. Rigid thinking around safety and will not answer the door unless expecting someone and sometimes even when expecting someone.

1. Ms Staples sought to justify the above recommendations in the following terms '[t]hese items support independent living and functional goals, address barriers such as executive dysfunction, sensory dysregulation, reduce risks, improve independence and reduce carer burden'.[94]
2. In terms of her opinion regarding funding for activities of daily living, Ms Staples wrote '[b]ased on clinical observation, functional assessment, and the complexity of [the Applicant's] support needs, it is required that [the Applicant] receive multi-disciplinary therapy supports. We have stated the supports are required as opposed to recommended as they are deemed essential for his care and function and are not merely a recommendation. Once sufficient education and scaffolding has been developed, support workers can be utilised to complement the developing skills which, once firmly established, can be reinforced by a psychosocial recovery coach' (original emphasis). [95]
3. Ms Staples recommended that the Applicant be funded for five hours of support worker assistance per fortnight for 'home maintenance (cleaning, gardening) support', and funding for food preparation and delivery (six months to establish regular eating pattern), dietitian and psychologist (six months on a fortnightly basis), occupational therapy (weekly), and support worker (eight hours per week once capacity has been developed).[96] Ms Staples observed that the Applicant often requires prompting to initiate community activities, even with familiar tasks like attending university.[97] She thought the Applicant had shown progress towards community access 'under tightly controlled and supported conditions' and that he was not 'currently capable of fully independent access beyond pre-trained, specific contexts.'[98] Ms Staples gave clinical justification for further occupational therapy, which was not disputed.[99]
4. In June 2025, Ms Staples made the following further recommendations:[100]

Community access encompassing essential health and appointment management, household and clothing shopping, haircuts, and structured community tasks.

To attend appointments, practice transport skills, access essential services (e.g., shopping, banking), and engage in low-demand community spaces. These sessions are necessary to build confidence and routine.

To support participation in community activities such as a planned social outing or recreational task. Weekends provide an opportunity for structured social skills generalisation, (e.g., going to a café, attending social groups), with support to role play and debrief as per therapy strategies.

To reduce social isolation, maintain structure and ensure access to the community environments outside routine-based activities.

Psychologist - 12 months of fortnightly long sessions (90 minutes).

Support worker - five hours a fortnight on weekends once sufficient capacity has been developed by therapists - eventual reduction in frequency as skills develop, i.e. fortnightly, then monthly, then oversight from psychosocial recovery coach.

To improve speech enunciation and communication skills to support community access.

Speech therapist - six months of fortnightly long sessions (90 minutes).

To try new things and assist in facilitating improved relationships with informal supports by provision of respite.

13 days per year - combination of weekdays and weekends.

To improve overall health and well-being and capacity to engage in activities of daily living.

Exercise physiologist / physiotherapist - six months of twice weekly 45-minute sessions.

To support access to capacity building therapies, job interviews and study commitments not at the university until [the Applicant] is able to independently manage public transport.

Training and support to access local shops, appointments, and navigate public transport. Dysregulation and risk of disorientation or shutdowns in unstructured environments.

Level three transport funding - [Applicant] is attending full-time study and looking for part-time employment.

To assist in finding and keeping part-time employment.

Therapy integration/generalisation sessions (OT-informed support)

Guided sessions to generalise skills learnt in therapy, including planning, scheduling, and initiating community-based tasks such as using public transport, driving training, gym trials, or cooking groups.

Coaching/check-in support (via telephone or brief visits)

Emotional regulation check-ins, reminders to attend appointments, or daily living prompts to prevent disengagement or regression in independence.

1. In terms of the recommended 'software applications', Ms Staples argued that such supports were intended to replace support worker assistance or prompts.[101]
2. In terms of the doorbell camera, Ms Staples claimed that this would support the Applicant's 'safety, independence and capacity for social participation'.[102] It was suggested that the video feature was linked to the Applicant's disability-related support needs because he has cognitive and psychosocial impairments around rigid thinking, communication difficulties and task avoidance.[103] Similar reasoning was given for 'Alexa/Google Home'.[104]
3. In terms of the proposed exercise supports, Ms Staples suggested that physiotherapy was 'clinically indicated as part of a multi-disciplinary approach', including as a result of the applicant's deconditioning and physical activity, poor postural regulation, motor coordination difficulties, need for supervision, and structured movement.[105]
4. Ms Staples' justification for dietetic support was the Applicant's restricted eating patterns and nutritional deficiencies, need for education about the link between eating, energy, and wellbeing and to prevent functional regression.
5. In terms of psychosocial recovering coaching, Ms Staples stated that the inclusion of this support within the Applicant's allied health support structure is 'reasonable, necessary and not duplicative' because it 'reflects an affirming, evidence-informed approach to skill generalisation, executive functioning support, and sustained developmental progress. The psychosocial recovery coach complements - not replaces - clinical services and plays a key role in translating therapy into independence.'[106]
6. In terms of the short-term accommodation, Ms Staples described the Applicant and his brother as having a 'fragile dynamic' and indicated that STA was sought to manage the Applicant's 'stress' when he is left alone, the altercations between the siblings and 'offering [the Applicant] an opportunity to be exposed to new environments where therapeutic strategies can be practiced and reinforced.'[107]
7. Lastly, the justification for meal delivery/preparation was the Applicant's difficulties with executive functioning, reluctance to engage with support workers and need for consistent access to appropriate meals.[108]

1. Mr Fielke is a registered occupational therapist. He has a Bachelor of Occupational Therapy from the University of Queensland and has been a registered health practitioner since April 2004. He was briefed by the Agency to provide an 'independent' FCA. As indicated above, this was conducted 'on the papers' between 16 and 23 October 2025.[109] Noting those limitations, he observed that the Applicant's reduced capacity for self-care is primarily a consequence of his diagnosis of ASD.[110] He considered that the Applicant required supervision and prompting because of his ASD.[111] That is, the Applicant's challenges are related to his difficulty planning, initiating, and completing tasks.[112] It was observed that '[a]ssistance from a support worker is recommended whilst the Applicant improves his independence in showering, dressing, grooming, and feeding. This assistance is to provide verbal prompting and reminders (whilst establishing daily routine) and supervision to maintain the quality of his showering, grooming and dressing and to maintain a regular and nutritious diet.' Mr Fielke supported a 1:1 ratio for self-care tasks in the short-term, reducing to 1:3 in the medium-term.[113] He considered that there needed to be a focus on developing the Applicant's skills to avoid long-term dependence and that the Applicant would require further support from an OT in this respect.[114]
2. In oral evidence, Mr Fielke agreed that it was common for there to be medical input in a patient's recovery plan. He was asked how such a plan may be formulated in the absence of such input, and he observed that he would usually rely on the input received from the treating allied healthcare team. He said that the issue of a client's willingness to participate with a practitioner may be dealt with by changing the practitioner or by agreeing outcomes. Mr Fielke expected that support workers or intermediaries (such as psychosocial recovery coaches) would reinforce the programme that had been set by the Applicant's OT.
3. In terms of the Applicant's nutritional issues, Mr Fielke considered that 12 hours of input from a dietician, provided it was delivered in a structured way and was reinforced by other clinicians, was reasonable. So far as the food preparation and delivery service was concerned, he thought that the Applicant had some capacity to cook for himself. He observed that he would rather see the Applicant acquire the skills himself/improve his capacity to prepare simple meals, and that there were pre-prepared meals which could be purchased to support this without the need for this to be supported by the NDIS. The Applicant's mother put the reasoning behind their request for meal preparation and delivery to Mr Fielke for comment, and he maintained his opinion that this need could be appropriately managed by the Applicant's OT, support worker(s), and by purchasing pre-prepared meals from the supermarket.
4. In terms of the STA request, Mr Fielke observed that there was limited information about the nature of the interpersonal conflict between the Applicant and his brother. He fairly noted that part of living with a sibling is managing those issues. He accepted that a normal practice of an OT is to deal with various issues, including the need to reinforce the proposition that one has to clean up after oneself.
5. Mr Fielke considered that additional transport funding would be 'counterproductive' and that the goal should be to continue to develop the Applicant's independence by his mastering of public transport and by learning to drive. This could be supported through his OT and support worker funding.
6. In terms of the exercise physiology/physiotherapy request, Mr Fielke considered that participants make more gains through the activities of daily living, being mobile, than with attending sessions with an exercise physiologist. He thought that the Applicant needed something which would engage him physically and was not sure that this was an exercise physiologist or a physiotherapist. Rather, he thought that engagement should be directed by the Applicant's OT and psychologist, and noted that people engaged in physical activity long before the existence of exercise physiology.
7. Mr Fielke did not support any of the assistive technology recommendations made by Ms Staples other than noise-cancelling earphones and fidget items. He thought that most of the visual recommendations made by Ms Staples related to people with other impairments. He observed that the Applicant had a mobile device and did not need the various recommended 'programs' or 'reminders' because he could set them himself on his mobile or use, for example, the Transperth App on his mobile. Mr Fielke testified that it was his experience that a number of people with ASD use those devices and that they achieve benefit from them. He considered the 'sensory chews' recommendation to be excessive and was not sure that it was evidence-based. The lighting recommendation was thought to be a personal preference. Mr Fielke did not support the video doorbell recommendation. He thought it was excessive and that, if it was based on a 'safety issue' or perception, this was something the Applicant should bear the cost of.
8. In terms of psychosocial recovery coaching, Mr Fielke considered that a combination of OT and support worker funding would meet that need. However, he agreed that a 'mentor' might be appropriate for the Applicant. He said that his reading of the situation was that the Applicant had difficulty ascribing value or meaning to various tasks and that the right person might be able to apply social pressure to the Applicant to bring about change. In his view, all 'boys of that age' need some mentoring in some capacity, and he considered the Applicant's present funding was sufficient for that purpose.

Relevance of refusal to participate in independent forensic examination

1. Absent clear statutory authorisation, the Tribunal cannot require a person to undergo a medical/forensic examination against their will.[115] The consequence of a party refusing a reasonable request for them to participate in the gathering of such further relevant information may be that the Tribunal will conclude, on the evidence before it, that it cannot make a favourable decision (or that it does not have sufficient information to be satisfied of the relevant statutory criteria in issue).[116] The weight to be given to any particular evidence is a matter for the Tribunal, consistent with the principles set out at paragraph [47] above. For example, the Tribunal can determine that less weight may be given to evidence on the basis that it has limited capacity to test it without another expert's report.[117]

Expertise of treating clinicians and an expert witness' obligations to the Tribunal

1. The duties and responsibilities of an expert witness are settled and derived from the reasoning in the UK Commercial Court case of National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd's Rep 68 (not disturbed on appeal).[118] In The Ikarian Reefer, Creswell J described the duties and responsibilities of an expert witness in a civil case with seven propositions:
   1. Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.
   2. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within their expertise. An expert witness should never assume the role of an advocate.
   3. An expert witness should state the facts or assumption upon which their opinion is based. They should not omit to consider material facts which could detract from their concluded opinion.
   4. An expert witness should make it clear when a particular question or issue falls outside their expertise.
   5. If an expert's opinion is not properly researched because they consider that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth, and nothing but the truth without some qualification, that qualification should be stated in the report.
   6. If, after exchange of reports, an expert witness changes their views on a material matter having read the other side's expert's report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the court.
   7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports, or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.
2. In Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, the NSW Court of Appeal remarked that 'while some of these matters have an ethical dimension, taken together they point to the need for the trier of fact to be fully informed of the reasoning process deployed in arriving at the expert's opinions.'
3. The above judicial pronouncements are reflected in the contents of the Administrative Review Tribunal (Expert Evidence) Practice Direction 2026.

1. The Tribunal repeats its observations regarding the expertise of occupational therapists in Re Brown and National Disability Insurance Agency [2025] ARTA 2029 (Brown) at [35]-[36].
2. It was the opinion of the multidisciplinary assessment team in March 2021 (Dr K E McKenna-Kerr (consultant psychiatrist), Dr L J Taylor (clinical psychologist), and Ms A K McKenzie (speech pathologist)) that the Applicant requires substantial support (level 2) for both social interaction and communication difficulties and repetitive/restricted pattern of behaviour. They considered that the Applicant did not have any accompanying language or intellectual impairment.
3. There are portions of Ms Staples' various reports (and that of Ms Burrow Ali) which tend to simply state the author's conclusion or opinion without describing, in any meaningful way, the process of reasoning and the relevant specialised knowledge or experience upon which it is based. This was particularly apparent in respect of Ms Staples' recommendations regarding assistive technology (set out above). As the Tribunal observed at paragraph [47] above, the Tribunal is obliged to make findings of fact based upon material which is logically probative. In Re Graham and Comcare (Compensation) [2025] ARTA 579, Senior Member Webb (at [175]-[181]) made the point that, to be of any assistance to the Tribunal, an expert must explain the basis of their evidence when it is not personal observation or sensation; 'what carries weight is the reasoning, not the conclusion'.
4. Further, the fact that Ms Staples is the Applicant's treating clinician does not mean that her opinion should necessarily be given less weight than that of Mr Fielke.[119] In Bakovic v Rosebridge Nominees Pty Ltd [1999] WASCA 78, the WA Court of Appeal held that:

... Each case depends upon its own circumstances. In many instances the opinion of the treating psychiatrist or treating medical practitioner will be more reliable than the opinion of a consultant who has seen the patient only once or twice or three times. Frequently, it will be found that a long-standing relationship between medical practitioner and patient will enable the medical practitioner concerned to express more reliable opinions, having a greater depth of knowledge and understanding of the patient concerned, than some other medical practitioner called in purely for medico-legal or other short-term purposes. On the other hand, it cannot be gainsaid that there will be instances where the close relationship between doctor and patient will result in the medical practitioner being so subjectively influenced that the opinions expressed by him or her will be regarded as less reliable than those expressed by a more objective expert.

Whilst the above proposition is directed at medical practitioners, the reasoning applies equally to the other registered health professions within their own fields of expertise. The inability to cross-examine Ms Staples meant that her reasoning for her various recommendations could not be exposed.

1. There are portions of Ms Staples' reports, particularly the quote at paragraph [81] above, which suggests that this clinician lacked the requisite impartiality for her opinion to be considered as entirely reliable, particularly where it was not corroborated by other evidence or capable of being tested under cross-examination. This was apparent from the phrase 'we have stated the supports are required as opposed to recommended'.
2. To the extent that Mr Fielke did not agree with either Mesdames Burrow Ali or Staples' recommendations, the Tribunal has preferred the opinion of Mr Fielke.

WHETHER THE DISPUTED SUPPORTS ARE NDIS SUPPORTS

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). > > ... > > Supports 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).

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

4 Definitions > > (1) In this instrument:

standard item for a participant ... means an item that is not modified or adapted to address the functional impairments of the participant ...

(2) An expression that is defined for the purposes of the NDIS Act has the same meaning when used in this instrument as it has in that Act.

5 What supports are NDIS supports - general rule

Supports that are NDIS supports unless otherwise provided

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

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

Note 1: Subsection 10(4) of the NDIS Act allows supports to be declared to not be NDIS supports for participants or prospective participants. Those supports are declared under subsection (2) of this section.

(2) For the purposes of subsection 10(4) of the NDIS Act, a support covered by column 2 of an item in the table in clause 1 of Schedule 2 to this instrument is not an NDIS support for any participant (subject to subsection 10(6) of the NDIS Act) or prospective participant.

Note 1: Subsection 10(6) of the NDIS Act allows the CEO, on application by a participant, to determine that a support is taken to not be declared under subsection 10(4) of that Act in relation to the participant if, among other things, the CEO is satisfied that the support would replace one or more other supports that are NDIS supports for the participant.

Note 2: Determinations under subsection 10(6) of the NDIS Act are referred to in this instrument as replacement support determinations. For additional rules about replacement support determinations, see section 7 of this instrument.

(3) A reference in this section to a provision of section 10 of the NDIS Act is a reference to the provision as modified (if at all) by item 124 of the amending Act.

Note: That item provides that, until the first National Disability Insurance Scheme rules are made for the purposes of subsection 10(1) of the NDIS Act, section 10 of that Act has effect as if a reference in that section to the National Disability Insurance Scheme rules were a reference to rules made under item 138 of Schedule 1 to the amending Act.

...

Schedule 1 - Supports that are NDIS supports unless otherwise provided

Note: See subsection 5(1)

1 Supports that are NDIS supports unless otherwise provided

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

Supports that are NDIS supports unless otherwise provided

Supports that build capacity, guide, prompt, or assist a participant to do activities for finding or keeping appropriate accommodation.

(a) supports that help a participant apply for a rental tenancy or to take part in tenancy obligations in line with their tenancy agreement;

(b) medium term accommodation where a participant cannot move into long term accommodation due to that accommodation or other supports not being ready and current accommodation is not suitable.

(a) for supports covered by paragraph (b) in column 2 - participants who have the support stated in their plan;

(b) for all other supports in this category - participants or prospective participants generally.

Assistance in coordinating or managing life stages, transitions and supports

Supports provided on a short‑term basis that provide assistance to manage life transitions.

(a) transition from or to new educational or employment settings;

Assistance to access and maintain employment or higher education

Supports that build a participant's capacity to successfully prepare for, find or keep employment in the open labour market (including self‑employment and micro‑enterprise) or the supported labour market.

(a) employment preparation complementary to that delivered while at school and when leaving school;

(b) assistance for a participant to transition to employment;

Assistance with daily life tasks in a group or shared living arrangement

Supports that provide assistance with or supervision of daily living tasks to participants in a shared living environment.

(a) supports provided on a temporary or ongoing basis;

(b) supports for short term accommodation and respite;

(c) supports provided to participants living in residential aged care facilities.

Supports that provide transport assistance to participants that cannot travel or use public transport independently.

(a) transport for the purposes of participants undertaking community‑based activities;

(b) transport for the purposes of participants attending school or other educational facilities;

(d) costs associated with the use of taxis or private transport;

(f) travel training to build a participant's confidence and skills to use public transport safety and independently.

The provision of assistive products that support a participant to carry out domestic and everyday actions and tasks within a participant's home.

(a) assistive products for the preparation of food and drink;

Supports that provide training and development activities for participants or carers to increase a participant's ability to live as independently as possible (including as part of psychosocial recovery supports).

This includes increasing the participant's ability to independently undertake the following activities:

Health supports that relate to the functional impact of a participant's disability.

(a) supports, services and assistive products to manage ... nutrition ...;

Exercise physiology and personal well‑being activities

Supports that maintain or increase physical mobility or well‑being through personal training or exercise physiology to address the functional impact of the participant's disability.

(a) accessing services from an appropriately qualified professional;

(b) assessment and development of a personalised exercise program which aims to increase or maintain a participant's functional capacity;

(c) maintenance of muscle strength, range of motion, balance and mobility.

Supports for participants to access and participate in community, social, cultural and recreational activities that are provided in a group setting, either in the community or in a centre.

Supports that assist a participant with complex [needs] to undertake high intensity daily personal activities.

These supports must be provided by a worker with additional qualifications and experience relevant to the participant's complex or psychosocial needs.

(a) a suitably qualified worker undertaking the activities;

(b) a suitably qualified worker supervising the participant or another person in the participant's support network undertaking the activities.

Participants who have the support stated in their plan and prospective participants that are likely to have this support stated in their plan

Supports that design, change or modify a participant's home to help the participant live as independently as possible and to live safely at home.

(a) installing equipment or changing a building's structure, fixture or fittings;

(b) internal and external building modifications to remedy damage arising exclusively from disability‑related behaviours or use of NDIS funded assistive technology or equipment;

(c) regulatory certification requirements for works.

Participants who have the support stated in their plan and prospective participants that are likely to have this support stated in their plan

Supports that provide assistance with essential household tasks that a participant is not able to do themselves because of their disability.

Participation in community, social and civic activities

Supports that assist a participant to take part in community, social, cultural and civic activities.

a) supporting participants during relevant activities;

(b) working with participants to develop their ability to partake in these activities.

Supports that provide a participant with assistance to prepare for, find and retain a job in the participant's employment setting of choice.

Supports that assist participants to connect with informal community and funded supports (including as part of psychosocial recovery supports).

(a) building a participant's capacity to connect with supports;

(b) assisting participants to understand and utilise their plan;

(c) connecting with providers and mainstream services;

(d) addressing barriers and reducing complexity in the support environment.

Participants who have the support stated in their plan

Supports that provide evidence‑based therapy to help participants improve or maintain their functional capacity in areas such as language and communication, personal care, mobility and movement, interpersonal interactions, functioning (including psychosocial functioning) and community living.

This includes an assessment by allied health professionals for support planning and review as required.

Schedule 2 - Supports that generally are not NDIS supports

Note: See subsection 5(2)

1 Supports that generally are not NDIS supports

The following table sets out supports that are not NDIS supports for:

(a) a participant (unless a replacement support determination covering the support is in force for the participant); or

(b) a prospective participant.

Day‑to‑day living costs - accommodation and household

...(c) standard home security and maintenance costs, fencing, gates, and building repairs;

(i) standard household (including garden) items, appliances, tools and products;

(a) groceries including all food, beverage, cleaning, household and health products;

(b) fast food services, takeaway food and food delivery platforms.

Meal delivery platforms where the food and ingredient component can be separately identified from the meal preparation and delivery components are not included in paragraph (b).

...(c) life coaches, wellness coaches, career coaches, or cultural coaches...

(c) concessions to facilitate use of public transport;...

1. The Tribunal repeats its observations in Brown at [40]-[42] and [44]-[48]. It would add to them the following further qualifications:

(a) the 'causal nexus' between the need for a support and a participant's impairment is addressed by s 34(1)(aa) of the NDIS Act;[120]

(b) it is necessary to read Sch 2 of the NDIS Supports Transitional Rules in a way that is harmonious with Sch 1;[121] and

(c) Column 1 to both Schedules of the NDIS Supports Transitional Rules does not qualify column 2.[122]

1. The Tribunal accepts the following disputed supports are 'NDIS supports':

(a) supports that provide training and development activities for participants to increase their ability to live independently as possible, including their ability to shop, prepare meals, manage finances, manage their own care, travel and use public transport, engage in social activity and improve their relationships and social skills (Sch 1, Cl 1, Item 15; cf. Sch 2, Cl 1, Item 3);

(b) supports that provide assistance with or supervision of daily living tasks to participants in a shared living environment, including short-term accommodation and respite (Sch 1, Cl 1, Item 5);

(c) supports that provide transport assistance to participants that cannot travel or use public transport independently, including transport for the purposes of undertaking community-based activities, attending educational facilities and travel training to build a participant's confidence and skills to use public transport safely and independently (Sch 1, Cl 1, Items 6 and 15; cf. Sch 2, Cl 1, Item 20);

(d) assistive products that support a participant to carry out domestic and everyday actions and tasks within their home, including the preparation of meals (Sch 1, Cl 1, Item 8; cf. Sch 2, Cl 1, Item 1(i));

(e) health supports that relate to the functional impact of a participant's disability, including supports, services and assistive products to manage nutrition (Sch 1, Cl 1, Item 16(a));

(f) supports that maintain or increase physical mobility or wellbeing through personal training or exercise physiology to address the functional impact of the participant's disability, including accessing services from an appropriately qualified professional, assessment and development of a personalised exercise programme which aims to increase or maintain a participant's functional capacity and maintenance of muscle strength, range of motion, balance and mobility (Sch 1, Cl 1, Item 18); and

(g) supports that assist participants to connect with supports, including psychosocial recovery coaching (Sch 1, Cl 1, Item 33; cf. Sch 2, Cl 1, Item 10).

1. There is one piece of recommended assistive technology which should be mentioned at this juncture, the 'video doorbell' system.
2. This Tribunal is obliged by s 110(1) of the ART Act to have regard to the decision in Re Hyde; Chief Executive Officer, National Disability Insurance Agency and (Guidance and Appeals Panel) [2025] ARTA 2597 (Hyde GAP). In Hyde GAP, the Guidance and Appeals Panel were considering whether a 'Control4 security system', which included voice activation features, CCTV and a video door intercom ([32]-[33], [85]), was an NDIS Support. It was agreed that the security system 'changed' or 'modified' the participant's home to help them live as independently as possible and safely at home within the meaning of Sch 1, Cl 1, Item 22 of the NDIS Supports Transitional Rules ([92]-[93]). The dispute was whether the security system also fell within Sch 2, Cl 1, Item 1(c) of those Rules and whether it was a 'standard home security' feature. The Tribunal, by majority, found that the security system had, in fact, been 'adapted' or 'modified' to address the participant's functional impairments arising from vision loss, and that it was therefore not a 'standard home security' feature ([145]-[146], [148], [162]). Deputy President Dordevic (in dissent) found that the system 'reflects universal design principles' and that the 'features that have been enabled to meet [the participant's] impairments are latent within [the security] system and are simply activated to meet her impairments' ([40]). The Deputy President was not satisfied that the enabling of the voice activation features of the system (or 'customising it' in that way) meant that the item had been modified or adapted to address the functional impairments of the participant, thereby making it 'non-standard' ([43]-[44]).
3. This Tribunal remains of the view, expressed in Brown, that consideration of whether something is 'modified' or 'adapted' to address the functional impairments of the participant requires consideration of the 'ordinary state' of the item in question and then whether there are either partial changes or additional/novel features in/to the item which address the functional impairment of the participant.
4. Unlike in Brown, concerning different home modifications, the Tribunal is not satisfied that a video doorbell is anything other than a 'standard item', whether it is classified as a 'standard home security cost', 'standard home improvement', or a 'standard household item, appliance or tool' within the meaning of Sch 2, Cl 1, Item 1 of the NDIS Supports Transitional Rules. Accordingly, it cannot be considered to be an 'NDIS Support' and does not meet the criterion in s 34(1)(f) of the NDIS Act for it to be included as an assistive technology to be funded within the Applicant's SoPS.
5. Moreover, the Tribunal does not accept that the Applicant has established, on the evidence, that the video doorbell is necessary for the purposes of s 34(1)(aa) of the NDIS Act. Relevantly, Mr Fielke considered the recommendation made by Ms Staples to be 'excessive'. The Tribunal agrees with that assessment.

WHETHER THE REQUESTED SUPPORTS ARE REASONABLE AND NECESSARY

1. The concept of a 'reasonable and necessary support' is not confined to s 34 of the NDIS Act, and the Tribunal is required to reach a positive state of satisfaction as to each of the criteria specified in s 34(1) of the NDIS Act. [123]

Section 34(1)(aa) - the support is necessary to address needs of the participant from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements

1. The Applicant gained access to the NDIS based on impairments attributable to his ASD. He requires substantial support in respect of his marked deficits in social communication, inflexibility of behaviour and difficulty with coping with change.
2. The Tribunal accepts the evidence before it establishes that the Applicant does require considerable OT intervention and 'scaffolding'. The Applicant's rigid thinking also means that he needs to understand the purpose of an activity and the expertise of the relevant support. This is reflected in the Agency's concession that additional OT funding and 12 hours of dietetics both meet the statutory criteria for them to be funded.
3. However, consistent with the evidence of Mr Fielke, the Tribunal does not accept that the evidence establishes that the Applicant requires an exercise physiologist to either access exercise, develop an exercise programme or maintain his muscle strength, range of motion, balance and mobility. Relevantly, the Tribunal notes the mobility assessment conducted by both Ms Staples and Mr Fielke (noting both clinicians assumed a diagnosis of hEDS which has not, in fact, been made).
4. Similarly, the Tribunal was not satisfied, based on the evidence of Mr Fielke, that the meal preparation and delivery service funding was necessary and it considers that this support would also duplicate some of the benefits achieved by other supports delivered under funding through the NDIS (namely the scaffolding supports).
5. Noting the Applicant historically has not availed himself of funded support worker assistance because of his rigid thinking (other than in respect of one support worker last year, who appears, in fact, to be a psychosocial recovery coach), the Tribunal was satisfied that this funding should be made available in a flexible way for it be used to fund psychosocial recovery coaching. What has changed during the course of the review is the gradual withdrawal of informal support provided by the Applicant's mother (including because they no longer live together and the Applicant is now an adult). It is the Applicant's mother who has previously provided the lion's share of scaffolding/prompting to the Applicant. In the absence of that informal support, the Applicant's health declined last year. It has now recovered and there is a reasonable and necessary plan in place to develop the Applicant's personal capacity to engage in the necessary activities of daily living and to reduce any developed reliance upon others to provide him with the essentials of life or to remind him that he needs to look after himself. That plan is the combination of OT therapy, psychological counselling and support worker/psychosocial recovery coaching.
6. The Applicant does struggle with change and needs support to increase his capacity to use public transport independently. The evidence before the Tribunal demonstrated the chronological development of the Applicant's skills in this respect. What was not clear to the Applicant, or to the Tribunal, was why the Applicant's SoPS presently funded against the Agency's 'expected levels of transport support' at 'level 2' (aimed at participants who are currently working or studying part-time) when he is, in fact, studying full-time and working part-time (which is the Agency's self-described 'level 3' of transport support). The Applicant's SoPS will be amended accordingly.
7. The only assistive technology/consumable recommended by Ms Staples which should be funded are the noise-cancelling headphones or ear defenders and fidget items or stress balls. The funding within the Applicant's SoPS for those items should be provided in a full amount in the relevant funding period. The other recommendations are not necessary and should not be funded.
8. Lastly, the evidence does not establish that the Applicant needs STA or respite to address his impairments. The supports that are directed at the Applicant's social communication deficits and his apparent resistance/motivation/initiation issues with respect to engaging in the activities required of living in a shared living environment (particularly, cleaning up after oneself in the kitchen) is the OT/psychological/psychosocial/support worker interventions.
9. For the purposes of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Support Rules), the Tribunal finds that:

(a) the requested OT, dietetics and transport funding do not fall foul of r 5.1(b) of the Support Rules and they are not 'day-to-day' living costs within the meaning of r 5.1(d); and

(b) the requested STA, exercise physiology and food preparation/delivery funding duplicate other supports delivered under alternative funding through the NDIS (r 5.1(c)) and/or they are day-to-day living costs which are not attributable to the Applicant's disability support needs (r 5.1(d)).

Section 34(1)(a) - the support will assist the participant to pursue their stated goals, objectives and aspirations

1. The Applicant's goals, objectives and aspirations are accurately summarised at paragraph [66] above. The Applicant's primary limitations in achieving those objectives are his social communication deficits and restricted, repetitive behaviours. The Tribunal is satisfied that the requested OT, dietetics, psychosocial recovery coaching and transport funding will assist the Applicant to pursue those goals, objectives and aspirations in a safe manner and directly relate to his disability-related needs.

Section 34(1)(b) - the support will assist the participant to undertake activities, so as to facilitate social and economic participation

1. The requested supports are aimed at improving the Applicant's capacity to undertake the essential activities necessary for him to engage in the personal activities of daily living which are necessary precursors for social and economic participation.

Section 34(1)(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

In 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).

2. The Tribunal considers that the requested OT, dietetics, psychosocial recovery coaching and transport funding are value for money.
3. The requested meal delivery and preparation funding is not. The Applicant can achieve the same outcomes with respect his meal planning, nutrition and capacity to feed himself with the funding provided for the OT, dietetics, psychosocial recovery coaching and transport. The Tribunal is not satisfied that the meal delivery and preparation funding would substantially improve the Applicant's long-term outcomes and it will not increase the Applicant's independence.
4. As argued by the Agency in closing submissions, the Tribunal does not accept that the STA funding is value for money or that it is likely to be beneficial for the Applicant. There are other ways the conflict between the Applicant and his brother can be resolved and there is no evidence demonstrating that the provision of STA would provide any enduring improvement because it does not target the underlying causes of the conflict (unlike the other supports).
5. The noise-cancelling headphones and fidget items are reasonably estimated to cost approximately $150 (together) by Ms Staples. The Tribunal considers these to be value for money relevant to the benefits they achieve with sensory regulation. The balance of the recommended assistive technology/consumables are not necessary, and they are not value for money. There is no evidence that they will substantially improve the Applicant's outcomes. Nearly every other item recommended by Ms Staples has cheaper alternatives (including many which are publicly available at no charge). For example, the reminder or application-based recommendations are each freely available to the Applicant on his personal mobile device. The Alexa/Google Home recommendation was a particularly egregious example of the recommendations which did not represent value for money. This failed to meet any of the criteria in r 3.1 of the Support Rules. Moreover, it was likely excluded from being an NDIS Support in any event by Sch 2, Cl 1, Items 1(i) and 4(d) of the NDIS Supports Transitional Rules.[124] Similarly, the 'daily living & meal preparation' and 'personal care & hygiene' recommendations each fall foul of Sch 2, Cl 1, Item 1(i) of the NDIS Supports Transitional Rules because they are standard household items, save for the visual recipe cards, schedules and software applications.

Section 34(1)(d) - the support will be or is likely to be effective and beneficial for the participant, having regard to current good practice

1. Rules 3.2 and 3.3 of the Support Rules provides that:

3.2 In 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. > > 3.3 In 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.

2. There was consensus of expert opinion regarding the Applicant's needs for further OT, psychosocial recovery coaching/support worker assistance and some complementing input from a dietician. The Tribunal was provided with some published literature including psychological strengths-based approaches to ASD,[125] enhancing the capacity of autistic individuals to use public transport,[126] and strategies to increase employment and economic participation for people with a cognitive disability.[127]
3. The UK National Institute for Health and Care Excellence (NICE) 'Guidelines for ASD in adults: diagnosis and management' (ref CG142, updated 14 June 2021) (NICE Guidelines) provide that:

1.4 Interventions for autism > > Psychosocial interventions for the core features of autism > > 1.4.1 For autistic adults without a learning disability or with a mild to moderate learning disability, who have identified problems with social interaction, consider:

• a group-based social learning programme focused on improving social interaction
• an individually delivered social learning programme for people who find group-based activities difficult.

1.4.2 Social learning programmes to improve social interaction should typically include:

• modelling
• peer feedback (for group-based programmes) or individual feedback (for individually delivered programmes)
• discussion and decision-making
• explicit rules
• suggested strategies for dealing with socially difficult situations.

1.4.3 Do not provide facilitated communication for autistic adults. > > Psychosocial interventions focused on life skills > > 1.4.4 For autistic adults of all ranges of intellectual ability, who need help with activities of daily living, consider a structured and predictable training programme based on behavioural principles. > > 1.4.5 For autistic adults without a learning disability or with a mild to moderate learning disability, who are socially isolated or have restricted social contact, consider:

• a group-based structured leisure activity programme
• an individually delivered structured leisure activity programme for people who find group-based activities difficult.

1.4.6 A structured leisure activity programme should typically include:

• a focus on the interests and abilities of the participant(s)
• regular meetings for a valued leisure activity
• for group-based programmes, a facilitator with a broad understanding of autism to help integrate the participants
• the provision of structure and support.

... > > 1.4.11 For autistic adults without a learning disability or with a mild learning disability, who are having difficulty obtaining or maintaining employment, consider an individual supported employment programme. > > 1.4.12 An individual supported employment programme should typically include:

• help with writing CVs and job applications and preparing for interviews
• training for the identified work role and work-related behaviours
• carefully matching the autistic person with the job
• advice to employers about making reasonable adjustments to the workplace
• continuing support for the person after they start work
• support for the employer before and after the person starts work, including autism awareness training.

Biomedical (pharmacological, physical and dietary) interventions and the core features of autism > > 1.4.13 Do not use anticonvulsants for the management of core features of autism in adults. > > 1.4.14 Do not use chelation for the management of core features of autism in adults. > > 1.4.15 Do not use the following interventions for the management of core features of autism in adults:

• exclusion diets (such as gluten- or casein-free and ketogenic diets)
• vitamins, minerals and dietary supplements (such as vitamin B6 or iron supplementation).

1.4.16 Do not use drugs specifically designed to improve cognitive functioning (for example, cholinesterase inhibitors) for the management of core features of autism or routinely for associated cognitive or behavioural problems in adults. > > 1.4.17 Do not use oxytocin for the management of core features of autism in adults. > > 1.4.18 Do not use secretin for the management of core features of autism in adults. > > 1.4.19 Do not use testosterone regulation for the management of core features of autism in adults. > > 1.4.20 Do not use hyperbaric oxygen therapy for the management of core features of autism in adults. > > 1.4.21 Do not use antipsychotic medication for the management of core features of autism in adults. > > 1.4.22 Do not use antidepressant medication for the routine management of core features of autism in adults. > > 1.5 Interventions for behaviour that challenges > > 1.5.1 Before initiating other interventions for behaviour that challenges, address any identified factors that may trigger or maintain the behaviour (see recommendation 1.2.20) by offering:

• the appropriate care for physical disorders (for example, gastrointestinal problems or chronic pain)
• treatment for any coexisting mental disorders, including psychological and pharmacological interventions (for example, anxiolytic, antidepressant or antipsychotic medication), informed by existing NICE guidance
• interventions aimed at changing the physical or social environment (for example, who the person lives with) when problems are identified, such as:

• advice to the family, partner or carer(s)
  • changes or accommodations to the physical environment (see recommendation 1.1.8).

[1.1.8 In all settings, take into account the physical environment in which autistic adults are assessed, supported and cared for, including any factors that may trigger behaviour that challenges. If necessary make adjustments or adaptations to the:

• amount of personal space given (at least an arm's length)
• setting using visual supports (for example, use labels with words or symbols to provide visual cues about expected behaviour)
• colour of walls and furnishings (avoid patterns and use low-arousal colours such as cream)
• lighting (reduce fluorescent lighting, use blackout curtains or advise use of dark glasses or increase natural light)
• noise levels (reduce external sounds or advise use of earplugs or ear defenders).

Where it is not possible to adjust or adapt the environment, consider varying the duration or nature of any assessment or intervention (including taking regular breaks) to limit the negative impact of the environment.] > > 1.5.2 First offer a psychosocial intervention for the behaviour that challenges if no coexisting mental or physical disorder, or problem related to the physical or social environment, has been identified as triggering or maintaining behaviour that challenges. > > 1.5.3 When deciding on the nature and content of a psychosocial intervention to address behaviour that challenges, use a functional analysis. The functional analysis should facilitate the targeting of interventions that address the function(s) of problem behaviour(s) by:

• providing information, from a range of environments, on:
  • factors that appear to trigger the behaviour
  • the consequences of the behaviour (that is, the reinforcement received as a result of their behaviour)
• identifying trends in behaviour occurrence, factors that may be evoking that behaviour, and the needs that the person is attempting to meet by performing the behaviour.

1.5.4 In addition to the functional analysis, base the choice of intervention(s) on:

• the nature and severity of the behaviour
• the person's physical needs and capabilities
• the physical and social environment
• the capacity of staff and families, partners or carers to provide support
• the preferences of the autistic person and, where appropriate, their family, partner or carer(s)
• past history of care and support.

Psychosocial interventions for behaviour that challenges > > 1.5.5 Psychosocial interventions for behaviour that challenges should be based on behavioural principles and informed by a functional analysis of behaviour (see recommendation 1.5.3). > > 1.5.6 Psychosocial interventions for behaviour that challenges should include:

• clearly identified target behaviour(s)
• a focus on outcomes that are linked to quality of life
• assessment and modification of environmental factors that may contribute to initiating or maintaining the behaviour
• a clearly defined intervention strategy
• a clear schedule of reinforcement, and capacity to offer reinforcement promptly and contingently on demonstration of the desired behaviour
• a specified timescale to meet intervention goals (to promote modification of intervention strategies that do not lead to change within a specified time)
• a systematic measure of the target behaviour(s) taken before and after the intervention to ascertain whether the agreed outcomes are being met.

Combined interventions for behaviour that challenges > > 1.5.7 Consider antipsychotic medication in conjunction with a psychosocial intervention for behaviour that challenges when there has been no or limited response to psychosocial or other interventions (such as environmental adaptations). ...

1. The Tribunal is satisfied that the requested OT, psychosocial recovery coaching/support worker and dietetics supports are consistent with current good practice, including the above NICE Guidelines regarding managing the features of the Applicant's ASD. They are likely to be effective and beneficial for the Applicant.

Section 34(1)(e) - the funding or provision of the support takes account of what is reasonable to expect families, carers, informal networks and the community to provide

3.4 In 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: > > ... > > (b) for other participants: > > (i) the extent of any risks to the wellbeing of the participant arising from the participant's reliance on the support of family members, carers, informal networks and the community; and > > (ii) the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as: > > (A) the age and capacity of the participant's family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and > > (B) the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and > > (C) the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and > > (iii) the extent to which informal supports contribute to or reduce a participant's level of independence and other outcomes; > > (c) for all participants - the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.

2. The Applicant's circumstances are set out above. He lives with his older brother (and the brother's girlfriend). There are some evident issues of sibling rivalry and some conflict between the Applicant and his brother about the discharge of the Applicant's domestic duties. Their mother has limited capacity and is herself a participant. The requested supports are modest in nature, aimed at developing the Applicant's capacity to look after himself without daily prompting from his mother or brother and they are reasonable in all the circumstances.

Section 34(1)(f) - the support is an NDIS support for the participant

1. The Tribunal has already given reasons for finding that the necessary supports fall within the categories of supports which are declared to be 'NDIS Supports' under s 10 of the NDIS Act, read with the NDIS Supports Transitional Rules. Specifically, the Tribunal finds that the requested supports fall within the category of supports identified at items 6, 15, 16, 23 and 33 of Cl 1 of Sch 1 to those Rules. These requested supports are not 'day-to-day living costs' that are not attributable to the Applicant's disability support needs.
2. Funding the requested supports would not be contrary to law and they are not a form of income replacement.[128]
3. Lastly, the Tribunal is required to have regard to whether the supports are most appropriately funded or provided through the NDIS (rather than through other service systems). Schedule 1 to the Support Rules sets out the relevant factors that must be considered when making that assessment.[129] These include:

Health (excluding mental health) > > 7.4 The NDIS will be responsible for supports related to a person's ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment. > > 7.5 The NDIS will not be responsible for: > > (a) the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions; or > > (b) other activities that aim to improve the health status of Australians, including general practitioner services, medical specialist services, dental care, nursing, allied health services (including acute and post-acute services), preventive health, care in public and private hospitals and pharmaceuticals or other universal entitlements; or > > (c) funding time-limited, goal-oriented services and therapies: > > (i) where the predominant purpose is treatment directly related to the person's health status; or > > (ii) provided after a recent medical or surgical event, with the aim of improving the person's functional status, including rehabilitation or post-acute care; or > > (d) palliative care. > > Mental health > > 7.6 The NDIS will be responsible for supports that are not clinical in nature and that focus on a person's functional ability, including supports that enable a person with a mental illness or psychiatric condition to undertake activities of daily living and participate in the community and social and economic life. > > 7.7 The NDIS will not be responsible for: > > (a) supports related to mental health that are clinical in nature, including acute, ambulatory and continuing care, rehabilitation/recovery; or > > (b) early intervention supports related to mental health that are clinical in nature, including supports that are clinical in nature and that are for child and adolescent developmental needs; or > > (c) any residential care where the primary purpose is for inpatient treatment or clinical rehabilitation, or where the services model primarily employs clinical staff; or > > (d) supports relating to a co-morbidity with a psychiatric condition where the co-morbidity is clearly the responsibility of another service system (eg treatment for a drug or alcohol issue). > > Housing and community infrastructure > > 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 > > (d) user costs of capital in some situations where a person requires an integrated housing and support model and the cost of the accommodation component exceeds a reasonable contribution from individuals.

4. For those reasons, the necessary supports are NDIS Supports and they should be funded for the Applicant by the NDIS.

1. The Tribunal is satisfied that the following requested supports meet the statutory criteria found in s 34(1) of the NDIS Act for them to be specified in the Applicant's SoPS:

(a) Occupational therapy (additional 166 hours);

(b) Transport funding (level 3);

(c) Consumables (namely noise-cancelling headphones/ear defenders and fidget items/stress balls) ($150, provided in a lump sum way in any funding period);

(d) Dietetics (12 hours, provided in a lump sum way in any funding period, and not to be funded until at least the second funding period after the Tribunal's decision); and

(e) Psychosocial recovery coaching (156 hours).

1. The Applicant's plan should be for three years' duration from today with a re-assessment date of 18 months from today.
2. On or before 13 March 2026, the parties are to confer and provide a minute of proposed orders to the Tribunal to give effect to these reasons for decision.

I certify that the preceding 147 (one hundred forty-seven) paragraphs are a true copy of the reasons for the decision herein of General Member J Papalia

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

[1] See Respondent's Amended Statement of Facts, Issues and Contentions (RSFIC), [5].

[2] See Exhibit 2. Figures in this decision are rounded down to the nearest $100.

[3] See _Tuite v Administrative Appeals Tribu_nal [1999] FCA 113; (1999) 40 FCR 483, [18], [21], [31].

[4] See 'Psychosocial Disability Access Factsheet 3: Lifetime support and recovery for psychosocial disability in the NDIS', pp 5-6; 'Psychosocial recovery coach' accessible at https://www.ndis.gov.au/media/6966/download?attachment.

[5] As to which see 'what is recovery?', Person-centred recovery planning for mental health and well-being self-help tool, World Health Organisation (2019), p 1; 'Psychosocial recovery coach' (NDIS) (ibid), pp 5-6.

[7] See https://www.healthdirect.gov.au/autism; Australian Government Department of Social Services, National Autism Strategy 2025-2031 (2024), p 9.

[9] See Exhibit 3, p 6; DSM-5, F84.0, [A]-[B] (page 58).

[11] See Exhibit 3, p 6; DSM-5, F84.0, [C] (page 58).

[12] See Exhibit 3, p 6; DSM-5, F84.0, [D] (page 58).

[13] See Exhibit 3, p 6; DSM-5, F84.0, [E] (page 58).

[14] See DSM-5, F84.0 'Note' and Table 2 (pages 58-59).

[17] See RSFIC, [4]; Applicant's Statement of Facts, Issues and Contentions (ASFIC), [3].

[25] See e.g. Re Pearce and National Disability Insurance Agency [2022] AATA 3608, [28]-[41]; Re PBZB and National Disability Insurance Agency [2023] AATA 3385, [41]-[43].

[30] These policies are to be contrasted with the 'rules' made under s 17 of the NDIS Act.

[31] See Plaintiff M64/2025 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173, [54].

[33] See also National Disability Insurance Scheme (Old Framework Plans) Determination 2024 (Cth), ss 6-7.

[34] There are no conditions presently prescribed under s 67(3)(e) of the ART Act in the Administrative Review Tribunal Rules 2024 (Cth).

[38] See Re Kevin and Minister for Capital Territory [1979] AATA 69; (1979) 37 FLR 1; (1979) 2 ALD 238, 242-3 [12]; Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247, 257.

[39] As to which see https://www.wacompanioncard.org.au/

[40] See Polizzi v Commissioner of Police (No 2) [2017] WASC 166, [85]-[87]; Re Tarrant and Australian Securities and Investments Commission [2013] AATA 926; (2013) 62 AAR 192, [79]-[83]; see Stack v State of Western Australia [2004] WASCA 300; (2004) 29 WAR 526, [77]-[105]; Lee v Huo [2026] NSWCA 15, [88], [97]-[100] regarding cross-examination generally.

[77] Reference is also made by Ms Burrow Ali to dietetics and to speech therapy, but no reasoning is provided other than a comment that those things are not generally available and cannot be 'substituted'.

[115] See Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LPSP [2023] FCAFC 24; (2024) 296 FCR 16, [81]; Furesh v Schor [2013] WASCA 231; (2013) 45 WAR 546; but cf Re MDCT and National Disability Insurance Agency [2020] AATA 6036; (2020) 84 AAR 311 (MDCT).

[116] See LPSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1563, [24]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LPSP [2023] FCAFC 24; (2023) 296 FCR 16, [88]; MDCT (2020) 84 AAR 311, [25].

[117] See Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LPSP [2023] FCAFC 24; (2023) 296 FCR 16, [89].

[118] See National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1995] 1 Lloyd's Rep 455.

[119] See Re Scott and Minister for Immigration and Citizenship [2025] ARTA 997, [102]; Re Brown and National Disability Insurance Agency [2025] ARTA 2029, [32].

[120] Chief Executive Officer of the National Disability Insurance Agency v Eastham [2026] FCA 147, [107].

[121] Chief Executive Officer of the National Disability Insurance Agency v Eastham [2026] FCA 147, [113].

[122] Chief Executive Officer of the National Disability Insurance Agency v Eastham [2026] FCA 147, [114].

[123] See Public Trustee (SA) (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852; (2023) 182 ALD 259, [17]-[24].

[124] See Re RFVZ and National Disability Insurance Agency [2026] ARTA 3, [42].