(a) Assistance with Daily Life (self-managed) $28,355.36 > > > (i) Assistance With Self-Care Activities - Standard - Weekday Daytime - 10 hours per week for 48 weeks (prorated) > > > > (ii) Assistance With Self-Care Activities - Saturday - Weekday Daytime - 2 hours per week for 48 weeks (prorated) > > > > (iii) Short Term Accommodation (STA) and Assistance (Inc. Respite) - 1:3 ratio (one support for 3 individuals) - Weekday - 10 days per year (prorated) > > > > (iv) STA and Assistance (Inc. Respite) - 1:3 - Saturday - 2 days per year (prorated) > > > > (v) STA and Assistance (Inc. Respite) - 1:3 - Sunday - 2 days per year (prorated) > > (b) Assistance with social, economic and community participation (self-managed) $5961.16 > > > (vi) Group activities in a Centre - 1:3 - Standard - Weekday Daytime - 2 hours per week for 52 weeks per year (prorated) > > (c) Consumables (self-managed) $250

(d) Improved daily living skills (self - managed) $9134.65 > > > (vii) 30 hours per year Occupational therapy (prorated) > > > > (viii) 30 hours per year Speech therapy (prorated) > > > > (ix) 26 hours per year Psychology (prorated) > > (e) 4 hours per year continence nurse assessment (prorated) > > (f) Behaviour supports (agency-managed) $7572.18 > > > (x) 45 hours per year Specialist Behavioural Intervention Support (prorated) > > > > (xi) 20 hours per year Behaviour Management Plan including training in Behaviour Management Strategies (prorated)

1. The total value of the SOPS under the Current Plan is $51,273.35.

1. The issue before the Tribunal is whether the following supports as requested by the Applicant are reasonable and necessary supports under section 34(1) of NDIS Act:

1. Developmental educator and therapy assistant

(a) 189 hours for a developmental educator and > > (b) 577.5 hours for a therapy assistant

• increase from 10 to 16 weekday nights per year
• increase from 2 to 4 Saturday nights per year
• increase from 2 to 4 Sunday nights per year; and

(e) increase from $500 to $2,000 consumable budget. > > The consumables requested are as follows: > > 1. Weighted plush lizard $90.00 > 2. Anti-burst peanut ball $101.95 > 3. Double hammock with stand $340.00 > 4. Cupcake chewable sensory pendant $15.00 for 1. The Tribunal notes it was unclear how many of these were required but were later conceded to be no longer necessary by the AM. > 5. Pressure activated vibrating cushion $69.95 > 6. Beurer mini massager $29.95 > 7. Loop earbuds $34.95 > 8. Personalised wall planner landscape $99.00 > 9. Time Timer 120 minute $53.95

TOTAL FOR CONSUMABLE REQUESTED (excluding item d): $819.75

1. The relevant provisions under the new Administrative Review Tribunal Act 2024 (Cth) (ART Act) are sections 54 and 105. Section 54 of the ART Act enables the Tribunal to exercise all of the powers and discretions held by the original decision-maker, when conducting a review of a reviewable decision.
2. In reviewing the decision:

1. the Tribunal stands in the shoes of the delegate/internal reviewer and must make the correct or preferable decision based upon the evidence and other material before it;[1] and

1. b. the scope of the Tribunal's jurisdiction is determined by reference to the scope of the internal reviewer's powers under section 100 of the NDIS Act, which is in turn informed by the scope of power under section 33(2) of the NDIS Act.[2]
2. Section 105 of the ART Act provides that when reviewing a reviewable decision, the Tribunal must either: affirm the decision which means to confirm the decision was the correct or preferable decision; vary the decision, which means to change part of the decision; set aside the decision, and substitute a new decision for the original, or; remit the matter to the decision-maker to reconsider it in accordance with any orders or recommendations of the Tribunal.
3. Applying the Full Federal Court approach in Beezley v Repatriation Commission,[3] the applicant carries a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.

1. Section 33 of the NDIS Act deals with matters that must be in a participant's plan. A plan must include a statement of goals and aspirations prepared by the participant, per section 33(1), and a SOPS approved by the CEO which, amongst other things, specifies reasonable and necessary supports that will be funded under section 33(2)(b).
2. The decision of the Federal Court in McGarrigle v National Disability Insurance Agency[4] provides that once a decision-maker is satisfied of all the requirements, then section 33(2)(b) contemplates that a support will be fully or wholly funded.
3. Section 33(5) outlines what a decision maker must have regard to and apply in approving a SOPS. The decision-maker must:

(a) have regard to the participant's statement of goals and aspirations; and

(b) have regard to relevant assessments conducted in relation to the participant; and

(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and

d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and

(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and

(f) have regard to the operation and effectiveness of any previous plans of the participant; and

(g) have regard to whether section 46 (acquittal of NDIS amounts) was complied with in relation to any previous plan for the participant.

1. Although 'reasonable and necessary supports' appears in different parts of the NDIS Act, section 34 as amended by National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Cth), relates to the criteria to be applied when assessing whether reasonable and necessary supports are to be funded:

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

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

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

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

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

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

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

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

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

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

1. The meaning of 'reasonable and necessary' is not expressly defined in the NDIS Act. Mortimer J in McGarrigle provided:[5]

[41] Although the phrase "reasonable and necessary supports" is used throughout the legislative scheme, including in the objects and principles provisions, it is not defined. Its meaning can be derived from the context in which it is used, especially in my opinion section 4(11), which sets out what reasonable and necessary supports should enable and empower people with a disability to do, read with s 14 which sets out the purposes for which funding for reasonable and necessary supports is provided.

2. In terms of the required approach to interpreting section 34, the Full Federal Court in National Disability Insurance Agency v WRMF confirmed the correctness of the Tribunal's observation that section 34 was not a 'definitional' statement of what is reasonable and necessary.[6] The Court further declined to consider or give an opinion that there were 'hard' or 'outer limits' to the concept noting that determining if something was a reasonable and necessary support was a fact intensive exercise based on the circumstances of each participant.[7]
3. In relation to the s 34(1) criteria the Full Court in WRMF said:[8]

[201] The matters set out in section 34(1) are more than mandatory considerations, because in terms section 34 requires that a decision-maker be positively satisfied about each matter. They are more in the nature of criteria of which the decision-maker (CEO, delegate or Tribunal) must be satisfied on the material. That satisfaction must be reasonably and rationally formed, not taking into account irrelevant considerations, and taking into account any relevant considerations, but otherwise it is for the decision-maker to form the requisite state of satisfaction on the given material.

1. In Public Trustee of South Australia (as litigation representative for Isherwood) V National Disability Insurance Agency (No 2),[9] Colvin J considered the role played by the section 34(1) criteria was to assist in determining if a support should be funded, as distinct from the consideration of whether a support is a 'reasonable and necessary support' as a concept:

[24] It must also follow that there will be instances of supports that will be reasonable and necessary supports for the purposes of that concept as used in the Act which will nevertheless not be funded. They will not be funded because the CEO has not reached the required state of satisfaction as to one or more of the matters in section 34(1). An outcome of that kind may arise because there is insufficient material before the CEO to enable the required state of satisfaction as to each of the six criteria to be reached...

[28] If the CEO is not satisfied as to any one of the six criteria, then the support cannot be included in the participant's plan. It follows, at least conceptually, that the CEO need not consider the remaining criteria where the CEO is not satisfied as to a particular criterion.

1. Under section 209(1) of the NDIS Act, the Minister may make rules prescribing methods or criteria to be applied or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied a support is reasonable and necessary.
2. Section 34(2) further provides that rules may prescribe methods or criteria to be applied or matters to which the CEO is to have regard, when considering the criteria in section 34.
3. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Supports Rules) have been made and govern supports decisions and the application of section 34[10].

1. The NDIA has produced Reasonable and Necessary Supports Guidelines (Supports Guidelines) relevant to supports decisions.
2. As was noted in National Disability Insurance Agency v Foster,[11] guidelines contain policy guidance and do not prescribe circumstances that give content to the legislative criteria. They are described as administrative tools which, to be valid, must be consistent with the statute.
3. Generally, to the extent that guidelines are consistent with the NDIS Act, Agency Guidelines should be applied by the Tribunal unless there is a good reason not to do so.[12]

1. The Applicant was represented by her mother (AM).
2. The Respondent was represented by Dr Michael Taylor of Counsel and instructed by Moray and Agnew lawyers.
3. The hearing was conducted by video over 2.5 days in January 2026.

1. Six witnesses provided oral evidence at the hearing:

1. The AM provided detailed written and oral evidence relating to the Applicants behaviours, disabilities, current supports and school experiences.
2. In particular, the AM discussed the impact of the Applicant's behaviours on the family as a whole, as well as individual members. She shared her own experiences of parenting the Applicant, in line with the documentation provided in the JTB[13].
3. The AM also provided an overview of the Applicant's existing medical supports, as well as her views about the appropriateness of behavioural supports, medical interventions, educational contexts and history.
4. She provided an extensive explanation about the need for 1:1 support for STA (as opposed to the 1:3 support offered by the Agency), and why the current offerings by the Respondent, was not appropriate. In particular, she stated that the current STA funding could not be used because the funding could not be utilised for in-home care.
5. AM described her exhaustion, burnout, depression as a result of her caring responsibilities and the need for her to leave the house in September 2025 to take time out from her caring responsibilities.
6. In relation to the request for educational therapy, AM focused on the benefits of the Journey 2 Learn program for the Applicant, and her desire for her peers to "never see her dysregulated".[14]

1. The Applicant's oldest sister (AS) is a 23-year-old university student.
2. AS is casually employed as a disability support worker.
3. She provided detailed evidence relating to the Applicant's impact on the family and the running of the house.
4. AS explained the challenges and impacts of her caring responsibilities in relation to the Applicant, which reflected the content of her written carer impact statement.[15]
5. She also responded to the summons material which contained evidence in relation to the support work and STA duties that were paid out of the Applicant's STA funding in September 2025, during a period of AM's incapacity.

1. Mr Jordan Liserno, Occupational Therapist, provided several letters of support, and a report stated 21 May 2025.[16] Mr Liserno co-authored a Functional Capacity Assessment, dated 5 January 2026 with his colleague Paul Littos.[17] He further facilitated a 10-day face to face intensive program of 8 consecutive daily 2-3 hours session in Adelaide with the Applicant and her sibling in November 2025.
2. Mr Liserno has been supporting the Applicant since March 2019, when the family still lived in Adelaide. They have a session every fortnight by telehealth.
3. Mr Liserno's evidence outlined the kinds of activities he undertook with the Applicant, his observations relating to her dysregulation, and his recommendations relating to the ration and quantum of STA supports.
4. Mr Liserno also provided evidence relating to his support for an Educational Support Officer (ESO) to facilitate the Applicant's learning at school.
5. M Liserno discussed his use of polyvagal theory in the design of his therapeutic supports for the Applicant.
6. He stated that behavioural support would be difficult because of the Applicant's "pervasive drive for autonomy" but that funding could be well spent with a well-trained support worker.

1. Ms Jill Donaldson, Clinical Psychologist provided two reports to the Tribunal; a report dated 17 January 2024 and 2 April 2025.[18] Ms Donaldson has been treating the Applicant since July 2022.
2. Over last two years Ms Donaldson has seen the Applicant monthly but had seen her more frequently in 2022.
3. Ms Donaldson last saw the Applicant on 11 December 2025, and usually sees her face to face, with the very occasional parent call.
4. Ms Donaldson reported that Applicant had a low attention span, and her experience was that appointments via telehealth were not very successful.
5. Ms Donaldson explained that there were multiple contributions to the dysregulation experienced by the Applicant.
6. In relation to educational supports, Ms Donaldson explained that the Applicant was not the only one of her clients who participated in the Journey 2 Learn program.
7. Ms Donaldson confirmed that she saw value in the program but was unable to provide the therapeutic basis for her recommendations of 18.25 hours of Journey 2 Learn support, as this was recommended by the provider.[19]

1. Dr David Pincus, Paediatrician, was engaged by the Respondent to provide an Independent Medical Examination report in response to targeted questions, dated 14 December 2025.[20]
2. In his report he acknowledges his experience as a paediatrician rather than an expert in functional capacity and his stated that his comments and findings in relation to such were provided with a low to medium level of certainty.[21]
3. Dr Pincus provided a detailed overview of his observations of the Applicant with a focus on her severe emotional dysregulation and the need for constant supports.
4. Much of Dr Pincus's oral evidence related to the pharmacological options that were available to the Applicant and the absence of an optimised medical approach.
5. Dr Pincus spent considerable time outlining the potential side effects of such medical options, as well as explaining the trial-and-error approach of specialists to determine the best approach.
6. Dr Pincus also explained his view on the usefulness of the other therapies contained in the Applicant's SOPS, supporting occupational therapy and psychology, with speech therapy being the least urgent of appropriate interventions. He did not support physiotherapy, exercise physiology, hydrotherapy or other therapy [22].

Shari Thompson, Adaptive Behaviour Support Specialist

1. Shari Thompson, Adaptive Behaviour Support Specialist, is employed by Journey 2 Learn as a 'helper'. Ms Thompson provided several letters including those dated 6 March 2025 and 2 October 2025.[23] She also provided a Report in response to targeted questions by the Respondent dated 31 May 2025.[24]
2. Ms Thompson is currently undertaking a Master of Clinical Psychology and has worked as a 'helper' at Journey 2 Learn since October 2022. She distinguished the skills she used in her role as a 'helper', from those she used in her role as a provisional psychologist.
3. Ms Thompson has worked with the Applicant since October 2022. However, Ms Thompson currently works in the office, as well as overseeing groups of children, and works with the Applicant 1:1 on an ad hoc basis.
4. Ms Thompson explained the Journey 2 Learn program in detail, including its philosophy, model, approach, training, supervision, operations, structure, and reporting process.
5. During cross-examination the Respondent's counsel referred considerably to the notes obtained as part of the summons material[25] and submitted into evidence from Journey 2 Learn. Ms Thompson provided responses to those questions in relation to the details of activities, the qualifications of 'helpers', the support models that were adapted and the training provided to staff as part of the Journey 2 Learn offering.
6. Ms Thompson also explained in detail how support decisions were made, particularly in response to requests by the Applicant to stay at school, and the differences between the adaptive supports provided by Journey 2 Learn and educational supports.

1. In arriving at its decision, the Tribunal has considered all the written evidence provided in the 'T-documents', the joint tender bundle, the Respondent's further written submission dated 14 January 2026, additional documentary evidence submitted as summons material, the written closing submissions and the oral evidence given at the hearing. Official transcripts were also provided and reviewed as part of the Tribunals' consideration.
2. The Tribunal will refer to the evidence that is directly relevant to the determination of this matter, including an assessment of the weight that should be given to the evidence.

Reasonable and Necessary Supports: Applying the section 34(1) criteria

1. Section 34(1) of the NDIS Act requires that for the purposes of specifying the reasonable and necessary supports that will be funded in a SOPS, each support must meet all 7 criteria in section 34(1) of the NDIS Act.
2. Tribunal decisions have tended to follow an approach as outlined by Senior Member French in FSWN v National Disability Insurance Agency,[26] and proceeded to consider the section 34(1)(f) criteria in the first instance. The Tribunal views this as a pragmatic approach to firstly understanding the nature of the support requested, before turning to the circumstances of the participant.

Section 34 (1) (f): Is the support a NDIS support for the participant?

1. Section 34(1)(f) makes it clear that only supports appropriately funded by the NDIS will be included in a SOPS.[27]
2. As a result, the Tribunal must determine if the support falls in a category of support declared not to be a NDIS support in column 1 of the Table in Schedule 2 of the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Transitional Supports Rules). If a support is excluded under Schedule 2, the support cannot be funded.
3. If the support does not fall within Schedule 2, the Tribunal must consider if the requested support falls within the scope of column 1 of the Table to Schedule 1 of the Transitional Supports Rules by reference to the description of supports in column 2. If the support cannot be located, the decision-maker will be unable to make a finding about whether section 34(1)(f) is satisfied and the support is a NDIS support.[28]

1. STA is covered by item 5(b) of the Table in Schedule 1. It is not contained in Schedule 2 of the Transitional Support Rules. It is therefore a NDIS support under section 34(1)(f).
2. The NDIS Guidelines - Short Term Accommodation states that STA:

...is funding for support and accommodation for a short time away from your usual home. It covers the cost of your care in another place for up to 14 days at a time. You might have a short stay with other people, or by yourself. It's often funded when your usual carers aren't available, or for you to try new things.

1. However, the Tribunal notes and the AM made it clear in her oral evidence, that the current funding provisions mean that the Applicant needs to leave the house to obtain funded STA, and that this has not been utilised.
2. The Tribunal finds that STA is a NDIS support under s34(1)(f).

Developmental Educator and Therapy Assistant: Journey 2 Learn

1. The Applicant requested 189 hours for a developmental educator and 577.5 hours per year for a therapy assistant, to be provided by Journey 2 Learn.
2. The Tribunal notes that Journey 2 Learn has provided support to the Applicant since 2022.
3. The characterisation of the supports provided by Journey 2 Learn constituted a large part of evidence provided in the hearing. The AM's intention with this request was to continue the Journey 2 Learn supports for the Applicant.
4. The Respondent contended that the Journey 2 Learn supports are not NDIS supports because they are:

a. covered by item 16(d) of Schedule 2 to the Transitional Rules as "personalised learning or supports for students that primarily relate to educational attainment"; and

b. in part, covered by item 6(g) of Schedule 2 to the Transitional Rules as "transport for children as part of their reasonable care and support provided by families or carers", the ultimate effect of which is that the J2L supports are not NDIS supports within the meaning of s 10 and thus not NDIS supports for the Applicant under s 34(1)(f).[29]

1. Learning Supports Relating to Educational Attainment

1. The Respondent's characterisation of the supports provided by Journey 2 Learn as learning supports was considered by Ms Thompson.[30]
2. Ms Thompson explained that adaptive support specialist, or 'helper' a title that the staff of Journey 2 Learn developed for themselves, is similar to that of a developmental educator, in relation to adaptive functional skills not educational attainment.[31]
3. Ms Thompson stated that the activities undertaken by a developmental educator is part of the role of an adaptive behaviour specialist, and confirmed the use of guidebooks containing behavioural plans developed and bespoke for each child: [32]

We use the school learning academic foundation for the task as a means of teaching the adaptive school because that's what she needs to do when she is at school...It's more of a means to end... while she is doing to her spelling activity, she needs to be remaining calm, she needs to be sitting in the chair, she needs to be, holding her pen correctly.[33]

4. Ms Thompson contended that the adaptive lens meant that the focus was on the adaptive skills required to learn rather than the learning itself, and contrasted a helper role to that of an educational support officer or teacher's aide, stating that:

From what I have seen and experienced, a teacher's aide would spend as much time across classrooms as we do, but in different rooms. So compared to what a Journey 2 Learn helper does, they're not quite as familiar with the child. They don't know them quite as well. They're not able to manage the intricacies of what is or isn't, say, a demand for the child. They're generally not familiar enough with particular children to be able to help de-escalate. And then the other thing that is different with a teacher's aide versus a Journey to Learn helper is, generally they haven't had any of that crisis prevention training in terms of the verbal de-escalation or, like the safety prevention component of it.[34]

5. AM's oral evidence was aligned with that of Ms Thompson. AM stated that when the Applicant does homework with her 'helper', she is not being taught, she is:

...doing self- directed learning but requires 1:1 support to stay in the green zone of emotional regulation.[35]

6. In their January 2026 report, Mr Liserno and Mr Littos recommended an Educational Support Officer (ESO) as a non-NDIS support for the Applicant to provide 1:1 support for both emotional regulation and to engage in academic learning.[36]
7. The Tribunal finds that the Journey 2 Learn supports fall under item 16 (d) of Schedule 2 of the Transitional Rules, which covers "personalised learning or supports for students that primarily relate to their educational attainment" and do not satisfy section 34(1)(f).
8. The Tribunal is satisfied that the Journey 2 Learn Supports are educational supports for the purposes of Section 34(1)(f) and are therefore not NDIS supports.

1. The Respondent contended that the Journey 2 Learn supports could also, in part, be characterised as transport services, which are not NDIS supports under Schedule 2.
2. AM's evidence confirmed that the support offered by Journey 2 Learn was valuable because it provided for the transport of the Applicant to the school grounds.
3. In her testimony, AM shared a number of experiences where drop off directly at school was unsafe for the Applicant, largely due to dysregulation and absconding, and the benefit of delivering the Applicant to the Journey 2 Learn staff, was for them to prepare her for the day and then take her to the school grounds and her class directly.[37]
4. The Tribunal finds that there is sufficient evidence to establish that the Journey 2 Learn supports are at least in part, transportation supports for the purposes of section 34(1)(f).
5. The Tribunal therefore finds that the Journey 2 Learn Supports fall under item 6(g) of Schedule 2 to the Transitional Rules, which covers "transport for children as part of their reasonable care and support provided by families or carers."
6. The Tribunal is satisfied that the Journey 2 Learn supports are in part transport services, and do not satisfy section 34(1)(f) as they are not a NDIS support.

1. On the basis of the evidence provided, the Tribunal finds that that the Journey to Learn Supports are not a NDIS support under section 34(1)(f) and are therefore excluded from further consideration.

1. A number of low-assistive technology consumables were requested as part of the review application under consideration. The Tribunal considers them individually below and then makes a finding in relation to them as a group.
2. The consumables requested by the Applicant were recommended by Mr Liserno in his May 2025 report on the basis that these were related to the Applicant's disability and were therefore NDIS supports.[38]
3. The Respondent contended that these are not NDIS supports as they are covered by Schedule 2, as outlined in Annex B of its SOFIC.
4. The arguments of both parties in relation to each itemised consumable are provided below[39]:

(i) The Respondent contended that this was covered by item 4(g) of Schedule 2: "standard recreational equipment [...] including toys" where a standard item is defined to mean "an item that is not modified or adapted to address the functional impairments of the participant". The Respondent contended that regardless of being weighted and the rationale for its use, the weighted plush lizard is not modified or adapted specifically for the Applicant's functional impairments[40]. > > (ii) Mr Liserno stated that this item is directly related to the Applicant's disability specific sensory processing needs and supports her functional ability to engage in education and daily living activities.[41] > > 1. Anti-burst peanut ball > > (i) Mr Liserno stated that this item directly supports therapy-based home programs to enhance the Applicants physical and sensory development and functional regulation. He states it is used for a "variety of exercises and activities" and targets "motor skills, including core strength and postural control, spatial and body awareness, as well as overall lower limb and upper limb strength".[42] > > (ii) The Respondent contended that regardless of rationale for use, the anti-burst peanut ball is standard recreational/play/gym equipment, and it is not assistive equipment for recreation covered by item 7 of Schedule 1 as it is not modified equipment for the Applicant. The Respondent contended that it is covered by items 4(g) ("standard recreational equipment") and/or 4(p) ("standard indoor or outdoor play equipment") and/or 4(r) ("standard gym equipment") of Schedule 2.[43] > > 1. Double hammock with stand > > (i) The Respondent argued that this is covered by items 1(i) ("standard household (including garden) items [...] or products") and/or 4(g) ("standard recreational equipment") of Schedule 2.[44] > > (ii) Mr Liserno states that this item should be funded to address sensory deregulation challenges stemming from the Applicants disability. It does this "by providing calming vestibular input through gentle swinging or rocking motions."[45] > > 1. Cupcake chewable sensory pendant. The Respondent contended that the only consumable not covered by Schedule 2 and not covered by an Item of Schedule 1 of the Transition Rules was item 4. However, during the hearing, both Mr Liserno and the AM stated these were no longer required and so is excluded from further consideration by the Tribunal. > 2. Pressure-activated vibrating cushion > > > (i) Mr Liserno stated that this item is directly related to the Applicant's sensory profile and regulation needs and provides "calming sensory input through gentle vibrations"[46]. > > > > (ii) The Respondent stated that this is covered by items 1(i) ("standard household [...] items [....] or products") of Schedule 2. The Respondent contended that regardless of being vibrating and the rationale for its use, the cushion is not modified or adapted specifically for the Applicant's functional impairments.[47] > > 1. Beurer Mini-Massager - MG 18 > > > (i) Mr Liserno stated that this item is a low cost, effective and preferred item that helps the Applicant "independently manage her sensory needs and reduces the risk of escalation or distress by "providing calming tactile stimulation through gentle vibrations". [48] > > > > (ii) The Respondent contended that regardless of the rationale for use, the mini massager is a standard household item, appliance or product and is covered by items 1(i) ("standard household [...] items, appliances [....] or products") of Schedule 2.[49] > > 1. Loop earbuds (Loop Quiet 2) > > > (i) Mr Liserno stated that this item is a disability-specific low costs assistive technology that addresses sensory defensiveness in noisy environments to reduce noise at home and at school, promote inclusion, regulation and functional participation.[50] > > > > (ii) The Respondent argued that this item was covered by items 1(i) ("standard household [...] items, appliances [...] or products") and/or 4(g) ("standard recreational equipment") of Schedule 2, where standard item has the meaning given for requested support. The Respondent also argued that this is not covered by item 20 (equipment related to permanent hearing impairment) of Schedule 1. The Respondent contended that regardless of the rationale for its use, the earbuds are not modified or adapted specifically for the Applicant's functional impairments.[51] > > 1. Personalised wall planner landscape > > > (i) Mr Liserno states that this item is a durable, functional, visual support tool that aligns with the Applicants learning and cognitive profile. It encourages independence and participation and reduces the need for ongoing printing and re-creation of schedules. It allows "for the creation of clear, flexible, and personalised visual schedules or task checklists that can be updated daily" to replace laminated copies that "require continual replacement". [52] > > > > (ii) The Respondent contended that the planner is covered by items 1(i) ("standard household [...] items [....] or products") of Schedule 2. The Respondent contended that regardless of the rationale for use, the wall planner is a standard household item or product.[53] > > 1. Time Timer: 120-minute > > > (i) Mr Liserno states that this item is a reasonable, low costs support that improves the Applicant's time management and independence with daily tasks. It directly supports outcomes in attention and regulation and will "help [the Applicant] understand the passing of time and can be beneficial for allocating time to academic and daily tasks". > > > > (ii) The Respondent contended that the timer was covered by items 1(i) ("standard household [...] items [....] or products") of Schedule 2. The Respondent contended regardless of the rationale for use, the time-timer is a standard household item or product.[54]

5. The Tribunal is satisfied that the consumable items in dispute are items covered by Schedule 2 of the Transitional Rules, which covers "personalised learning or supports for students that primarily relate to their educational attainment" and do not satisfy section 34 (1)(f).

1. STA is a NDIS support for the purposes for section 34(1)(f).

2. The developmental educator and therapy assistant requests (Journey 2 Learn) supports are not NDIS supports for the purposes of section 34(1)(f).

3. The consumables requested are not NDIS supports for the purposes for section 34 (1)(f).

Section 34 (1) (aa): Is the support necessary to address needs arising from an impairment

1. STA is the only requested support in dispute that is a NDIS support and therefore requires consideration under section 34(1) (aa). The parties disputed both the quantum and ratio of STA.
2. Section 34(1) states that for the purposes of specifying, in a SOPS, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied that:

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

1. The Tribunal accepts the evidence before it that the Applicant has a series of complex impairments.
2. The AM stated that the Applicant has significant, ongoing, and fluctuating functional impairments across emotional regulation, sensory processing, anxiety management, executive functioning, and safety awareness. The AM asserted that the Applicant's impairments were all a result of the Applicant's autism diagnosis.[55]
3. Mr Liserno, in his oral evidence , discussed pathological demand avoidance and polyvagal triggers, highly linked with anxiety, noting the multifaceted nature of the Applicant's impairment.[56]
4. Ms Donaldson in her oral evidence explained that the Applicant has multiple clinical disorders that are too complex to pull apart. There are aspects of the autism that are primarily driving the dysregulation, and ADHD with executive disfunction, attention, and learning disorders.[57]
5. Dr Pincus, in his response to targeted questions stated that:

I would therefore characterise [the Applicant] as being an intelligent child who has strong oppositional personality traits, poor executive functioning and significant emotional dysregulation and who finds many aspects of daily functioning quite challenging. She is therefore in a dysregulated state much of the time causing difficulties with daily functioning both for the family and the school. She has received significant intervention over the years and can quite clearly state what needs to happen from day to day but cannot regulate and organise herself appropriately to achieve these usual daily functional steps.[58]

6. The Tribunal is satisfied that the Applicant experiences a number of impairments for the purposes of section 34(1).

Section 24 (1) (a): Is the impairment in relation to which the participant meets the disability requirements under section 24 or section 25?

1. In order to fulfill the requirements of section 34(1) (aa), the Tribunal must also consider whether the impairments under section 24 and section 25 are attributable to her disability.
2. Section 24(1)(a) requires that the person has a disability that is attributable to

one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable.

1. During the hearing, neither party expanded on the range of impairments experienced by the Applicant, focusing on her Social and Emotional Dysregulation (SED) as the primary impairment related to her disability for the purposes of section 34.
2. The Tribunal notes that there was only one impairment under consideration for the purposes of this determination: Social and Emotional Dysregulation (SED) as a result of a psychosocial condition.
3. On the basis of the evidence before it, the Tribunal is satisfied that the Applicant's SED is most properly understood as an impairment attributable to a psychosocial condition pursuant to section 24(1)(a).[59]

Section 24 (1) (b): Is the impairment considered permanent?

1. An impairment must be found to be permanent under section 24(1)(b) to determine whether support may be reasonable and necessary under section 34(1).
2. Rules 5.4 and 5.6 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (Access Rules) provide important guidance for assessing whether an impairment can be said to be permanent:

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

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

5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).[60]

1. In Davis, Mortimer J observed that rules 5.4 and 5.6 of the Access Rules were exclusionary, in the sense that they "prescribe circumstances where, if the repository of the power is satisfied on the evidence of the applicability of either of those rules, a person's impairment will be excluded from meeting the permanency criterion in s 24(1)(b)".[61]
2. Her Honour observed the following with respect to the adjectives used in rule 5.4:
   1. the word 'remedy' should be understood to mean something approaching a removal or cure of the impairment';[62]
   2. the word 'known' connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person's particular impairment';[63]
   3. the word 'appropriate' 'connotes a treatment which has a capacity to "remedy" the impairment and is suitable for the particular individual concerned to undergo';[64] and
   4. the word 'available' should be understood as directed at what treatments an individual can, in reality, access'.[65]
3. Throughout the course of the hearing, the Tribunal heard much evidence relating to the use of medications, including the benefits of such medication on some of the behaviours of the Applicant, regardless of whether they were the result of her ADHD or autism or anxiety diagnoses.
4. The Tribunal considers that Dr Pincus's report and oral evidence holds considerable weight in relation to possible medical treatments. The Respondent summarised Dr Pincus's report and oral evidence in its closing submissions, contending that there were several effective pharmacological options that may alleviate the Applicant's SED impairment, namely:
   1. an increase in the dose of her current anxiety treatment, Fluoxetine.
   2. treatment with risperidone and/or guanfacine, where Dr Pincus' evidence also went to matters concerning the acceptance of these treatments for use in children as well as their availability and other matters (e.g., monitoring, side effects).[66]
5. AM gave evidence that in relation to the Applicant's anxiety, the Applicant has been treated with fluoxetine for approximately three years with good response.
6. In relation to the Applicant's ADHD, the Applicant has been treated with stimulant medication, Ritalin for approximately two years and this has been beneficial.
7. AM stated in relation to previous trials of the pharmaceutical options:

We had tried different things, probably more alternative things, to see if they are of benefit. Our family is very sensitive to medications.... We have tried [the Applicant] on other medications and they have not been successful... We choose to give it to her in the weekends and in the holidays, and we also - when she is at school, she has it in the middle of the day at lunchtime to help. She has a half dose to help her with her concentration.... I think there's a Ritalin, there's a long-acting, and then there's Intuniv. And what I was told was that Intuniv was only able to be - that Medicare was strict with its prescribing, and for you to use Intuniv you had to have tried the other two, them not be successful, and then have failed, and then try - then you could trial the Intuniv. It also takes approximately six weeks to take effect. So [the Applicant] started on Ritalin and then tried a long-acting, and it was extremely unsuccessful, to which Glenn was perplexed, because she did fine on the short-acting. We put her on the long-acting. And when I say 'unsuccessful', she would cry all of the time. And you would go up to her and you'd say, '[Applicant], what's wrong?' and she would cry and say, 'I have no idea. I don't know.' And she was like this for weeks, just sobbing. And she is not a kid who cries....in my understanding, both of these medications are used to treat ADHD and not autism, and therefore I would question the relevance of the questions .... because they are related to the ADHD, and everything that we are querying and seeking, I guess, is related to the autism[67].

I think she is feeling distressed a lot of the time... [there have been] .... strong attempts at home, at school, with Therapists, and yet the problem persists, school and family might trigger her because they are in such a highly triggered state themselves. [The AM] told me that about three years ago, [the Applicant] started on some fluoxetine, an SSRI, which is an anti-anxiety depressant medication, which is commonly used in children with autism and coexistent anxiety. And it helped and I would comment that that dose could still be increased. You know, a normal dose is 20 milligrams, a high dose is 40, she's on 10 milligrams, so that could be. But I also am aware that some children it actually triggers them off, fluoxetine, so for every drug we have to consider, for risperidone, which would be one of our next choices, next possible choices.... It quite quickly helps a large number of children who have got emotional regulation, anxiety issues in association with autism...it doesn't cure autism, occasionally it makes remarkable difference.[68]

9. A number of potential adverse consequences were raised during the hearing by AM, who was concerned about the impacts of Dr Pincus's approach, including weight gain, kidney and liver scarring, blood pressure, tremors, diabetes, the unknown impacts of puberty, as outlined in her closing submissions.[69]
10. Dr Pincus acknowledged some of these risks, as well as the challenges relating to withdrawal if the approach was not successful. In discussing dosage, Dr Pincus stated that it was a trial-and-error process:

...there is no way to predict who will respond and who won't. Parents will know within a fortnight how things are going. We can get feedback from the school as to what they are noticing - multi-modal feedback. Within 2-4 weeks we know whether it is worth persisting, whereas Fluoxetine - 4-6 weeks to get a response.[70]

11. Dr Pincus stated that a benefit for the Applicant could be in relation to sleep initiation and sleep maintenance[71] and further stated that if Risperidone were:

tried and were effective that would assist with [the Applicant's] dysregulation, but more in general, can be used to break the cycle and 6 months later everything is calm and the medicine can be successfully removed. It isn't a long-term commitment; we need to find something to make her life more pleasant. ...It will affect [her] confidence, the way the school treats her and the situation at home and would be hopeful that 6 months later she can come off it, once the situation is diffused...The medications won't help her with introversions - need to look at it as a circuit breaker. We're just trying to make it so that the situation de-escalates and once it starts to deescalate, I really feel that everything will be much more liveable, both for [the Applicant], and her school, and her family.[72]

12. Ms Donaldson also suggested that there was room for Fluoxetine to be increased and Intuit to be trialled, but that it wouldn't:

take away the autism -the impact of medications isn't enough to improve functionality and that the family would always need to work together with other professionals.[73].

13. The AM argued in her closing submission, that the use of medication would:

...remove the need for funding - that utilising medical alternatives removes the right of the Applicant and parents to make an informed decision regarding medication. It would remove supports that have been provided... and it is not guaranteed to work or how long to take effect. The Applicant submitted that medication may be adjunctive but cannot lawfully replace supports required to address disability-related needs.[74]

14. The Tribunal cannot be certain how the Applicant might respond to such treatment, noting that it is ultimately a decision for the Applicant's parents to decide whether they to trial a pharmacological approach.
15. The Respondent contended and the Tribunal agrees that:

if such options were to be trialled and found to be ineffective, with evidence to that effect, they would no longer be an appropriate treatment for the purposes of establishing permanence under section 24(1).[75]

1. The Tribunal is satisfied on the evidence of Dr Pincus, which it gives considerable weight, that there are other known, appropriate, and available treatments for SED funded through the medical system.
2. As a result, and pursuant to section 24(1)(b), the Tribunal is not satisfied that and/or impairment attributable to a psychosocial disability, manifesting as SED is permanent. The Tribunal finds that the Applicant does not meet the disability requirements in relation to this impairment under section 24.
3. The Tribunal notes that consideration under section 25, being early intervention, may have been the more appropriate access criteria for the Applicant to have become a participant in the NDIS. Regardless, in this matter, the impairment found to be non-permanent in nature, also excludes consideration of section 25(1)(a)(ii), which also requires permanency to be established, for the purposes of a section 34(1) (aa) determination.

Conclusion: Necessary to address needs arising from an impairment

1. As a result of this determination, the Tribunal finds that the supports requested, being STA (both quantum and ratio), are not reasonable and necessary to support the Applicant needs arising out of the Applicant's psychosocial impairment (SED) attributable to autism under s34(1) (aa).
2. Therefore, the Tribunal does not consider it necessary to further determine whether the supports in dispute are reasonable and necessary under s34(1)(a)-(e).

[1] See Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [37]- [38], [45]-[46] (Kirby J), [99] (Hayne and Heydon JJ), [143] (Kiefel J). Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430 at 440; Frugtniet v Australian Securities and Investment Commission [2019] HCA 16; (2019) 266 CLR 250 at [51]; QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.

[2] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 at [7].

[3] Beezley v Repatriation Commission (2015) FCAFC 165 (20 November 2015) at [68].

[4] McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [94-95].

[5] McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [41].

[6] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [198-199].

[7] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [152]- [153].

[8] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [201].

[9] Public Trustee of South Australia (as litigation representative for Isherwood) v NDIA (No 2) [2023] FCA 852 at [24 - 28].

[10] National Disability Insurance Agency v Deayton [2025] FCA 562 at [26]; McGarrigle v NDIA [2017] FCA 308 at [43].

[11] National Disability Insurance Agency v Foster [2023] FCAFC 11 at [62].

[12] Drake v MIEA (1979) 46 FLR 409.

[13] AM, Carers Impact Statement A11 JTB, pp.349-354.

[14] AM, Closing Submissions, Introduction, p.2.

[15] AS, Carer Impact Statement T13 JTB p.89.

[16] J. Liserno, Letters, A1, A6 JTB, pp.240-258; 279-90.

[17] J. Liserno and P. Littos, Report, A10 JTB, pp.304-348.

[18] J. Donaldson, Reports, T7 p.74-70; A5 JTB pp.273-278.

[19] J. Donaldson, Transcript, Day 2, p.76.

[20] D. Pincus, Report, R4 JTB, pp.387-401.

[21] D. Pincus, Report, R4 JTB, para 20. p.398.

[22] D. Pincus, Report, R4 JTB para 11(a) p.394-5.

[23] S. Thompson, Letters, A4, A8 JTB pp.270-272; 292-300.

[24] S. Thompson, Report, R2 JTB pp.375-378.

[25] Journey 2 Learn, Summonsed documents, S1 JTB, pp.433-560.

[26] FSWN v National Disability Insurance Agency (NDIS) [2025] ARTA 114 at [43].

[27] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024, item 47.

[28] Importantly, NDIA v Eastham [2026] FCA 147 provides recent judicial consideration of 34(1)(f). The Court also clarified that when considering what is an NDIS support for the purposes of s 34(1)(f), the Tribunal must read Sch 2 of the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth) in a way that is harmonious with Sch 1 and cannot use the category title in column 1 to read down the supports listed in column 2.

[29] Respondent Closing Submissions, Part B, para 7-9 p.3.

[30] S. Thompson, Report, A8 JTB, p.292.

[31] S. Thompson, Transcript Day 2, p.176.

[32] S. Thompson, Transcript Day 2, p.187.

[33] S. Thompson, Transcript Day 2, p.193.

[36] J. Liserno and P. Littos, Report, A10 JTB p.316.

[38] J. Liserno, Report, A6 JTB, p.281-285.

[39] J. Liserno, Report, A6 JTB, p.281-285; Respondent SOFIC, Annex B, pp.7-8.

[40] Respondent SOFIC, Annex B, SFIC 1 JTB, p.8.

[41] J. Liserno, Report, A6 JTB, p.281.

[43] Respondent SOFIC, Annex B, SFIC 1 JTB, p.8.

[44] Respondent SOFIC, Annex B, SFIC 1 JTB, p.8.

[45] J. Liserno, Report, A6 JTB, p.281.

[46] J. Liserno, Report, A6 JTB, p.282.

[47] Respondent SOFIC, Annex B, SFIC 1 JTB, p.8.

[48] J. Liserno, Report, A6 JTB, p.282.

[49] J. Liserno, Report, A6 JTB, p.282.

[50] J. Liserno, Report, A6 JTB, p.283.

[51] Respondent SOFIC, Annex B SFIC 1, JTB, p.7.

[52] J. Liserno, Report, A6 JTB, p.283.

[53] Respondent SOFIC, Annex B, SFIC 1 JTB, p.8.

[54] Respondent SOFIC, Annex B, SFIC 1 JTB, p.8.

[56] J. Liserno, Transcript Day 1, p.86.

[57] J. Donaldson, Transcript Day 2, p.80.

[59] In footnote 5 of para 2, page 2 of the Closing Submissions, the Respondent writes: Given the totality of the evidence, the Respondent does not seek to definitively attribute the Applicant's SED to any particular condition.

[60] National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth).

[61] National Disability Insurance Agency v Davis [2022] FCA 1002 at [75] and [131].

[62] National Disability Insurance Agency v Davis [2022] FCA 1002 at [136].

[63] National Disability Insurance Agency v Davis [2022] FCA 1002 at [137].

[64] National Disability Insurance Agency v Davis [2022] FCA 1002 at [137].

[65] National Disability Insurance Agency v Davis [2022] FCA 1002 at [139].

[66] Respondent Closing Submissions, paragraph 4, p.2.

[68] Dr David Pincus, Transcript Day 2, p.156.

[69] Applicant, Closing Submission, p.6.

[70] D. Pincus, Transcript Day 2, p.157.

[71] D. Pincus, Transcript Day 2, p.157.

[72] D. Pincus, Transcript Day 2 p.159.

[73] J. Donaldson, Transcript Day 2 p.155-156.

[74] Applicant, Closing Submission p.7.

[75] Respondent, Closing Statement, Transcript Day 3, p.207.