1. The Applicant challenges the decision under review on the basis that the supports approved for inclusion in his SoPS are inadequate to his needs. As it originally presented, the decision under review represented a 26.7% reduction in funding for his supports as compared with the previous plan period.
2. As noted above, while this Application has been before the Tribunal a new Participant Plan with a new SoPS was approved on 2 October 2022. That SoPS included approval for SDA and Supported Independent Living (SIL). However, there remains controversy between the parties in relation to these supports.
3. As at the date of the hearing the Applicant seeks approval of the following support, either additionally to that already approved, or in substitution of a disputed approved support:
   1. Specialist Disability Accommodation (SDA): Building Type - House, 1 resident; Design category - Robust, with breakout room,
   2. Occupational Therapy, 78 hours per year,
   3. Psychology, 30 hours per year,
   4. Exercise physiology, 26 hours per year,
   5. One-to-one support worker assistance (6 hours each weekday, 5 hours each Saturday and 4 hours each Sunday and public holiday,
   6. Medium-term accommodation, 180 days per year, and
   7. Short-term accommodation (respite care), 56 days per year.
4. Additionally, the Applicant requests the Tribunal to set a reassessment date for his Plan which is 3 years from the date of its decision.
5. The CEO's position at the commencement of the hearing was to the effect that her analysis of the evidence at that time led to the conclusion that the following should be considered reasonable and necessary in relation to these requests:
   1. SDA: single occupancy apartment, design category of Improved Liveability, with two bedrooms, plus a room for an overnight inactive support,
   2. SIL funding: SIL funding for 1:1 formal support 24/7, including 8 hours of overnight inactive support. She did not consider that the evidence supported funding for ongoing informal supports to be paid to family members, although she accepted that a period of paid informal support may be necessary as the Applicant transitions from his current informal care arrangements to formal supports,
   3. Occupational therapy: 50 hours annually (inclusive of reports), delivered directly to the Applicant, not his family, albeit allowing some overlap during any transition,
   4. Psychology: 28 hours annually (inclusive of reports), delivered directly to the Applicant, not his family, albeit allowing some overlap during any transition,
   5. Exercise physiology: 26 hours annually (inclusive of reports), delivered directly to the Applicant, not his family, albeit allowing some overlap during any transition,
   6. Medium-term Accommodation: not supported,
   7. Short-term Accommodation: not supported.
6. Additionally, the CEO submitted that the appropriate reassessment date for the SoPS is 1 year from the date of the Tribunal's decision, not 3 years as requested by the Applicant.

1. The Applicant's current Participant Plan incorporates the following participant goals (the Applicant's Statement of Goals and Aspirations):[3]

Short-term goal > > For my family to receive supports to enable them to continue to care for me. > > Short-term goal > > To support and improve Brandon's physical and mental health, diet and wellbeing fitness. > > Medium or long-term goal > > For Brandon and our family to be supported in care giving relationship > > Medium or long-term goal > > Support to reduce stress and anxiety, mood regulation and manage anger frustration (sic) > > Medium or long-term goal > > Supports to help me have a purpose in life. And an opportunity to gain creative employment. > > Medium or long-term goal > > Support to find suitable long term safe housing, Brandon wants to live independently and alone. > > Medium or long-term goal > > To increase my social participation and to enjoy music.

2. The SoPS incorporated into the Applicant's current Plan has a total budget of $499,035.23 for funded supports, for the period 2 October 2024 to 2 October 2025, which is divided into 3 categories. In the "Core Supports" category, total funding of $454,017.23 is available for Supported Independent Living ($329,761.31)[4], Assistance with Social Participation ($122,561.92)[5] and Transport ($1,784.00). In the "Capacity Building Supports" category total funding of $44,928.00 is available. This comprises $1,485.84 for the services of a registered plan manager, $13,579.302 for capacity building for Improved Daily Living, being for allied health professionals or therapists (40hours per year for 'other professional', 20hours per year for a dietician and 10 hours per year for a speech pathologist), $14,494.35 for capacity building for Improved Relationships, being 45hours of specialist behaviour intervention support and 20hours of behaviour management plan and training in behaviour management strategies per year, and $15,368.60 for 26 hours Specialist Support Coordination (Level 3), and 104 hours of Support Coordination (Level 2). These are "stated supports", meaning that funding must be used for these purposes. In the "Capital Supports" category total funding of $39,960.00 is available per annum (subject to quotation) for Specialist Disability Accommodation.[6]
3. Annexure A of the CEO's SFIC contains three graphs which depict funding utilisation against SoPS budget for three periods which make up the total period13 October 2021 to 2 October 2025. For present purposes it is sufficient to note that each of these graphs depicts substantial overall underspending against budget.

1. The Tribunal's role in conducting this review has been to reach its own conclusion as to whether the delegate's decision to refuse to approve the Applicant's requested supports in his SoPS is the correct or preferable decision.[7] That has involved the independent re-assessment of the evidence that was before the delegate when they made their decision as well as the assessment of the additional documentary and witness evidence that was before the Tribunal at the time of the hearing.[8]
2. Section 34(1) of the NDIS Act provides, relevantly, that for the purposes of specifying the reasonable and necessary supports that will be funded in a SoPS, the CEO must be "satisfied" of each of the matters set out in that section in relation to the funding of each such support. In this independent review, the Tribunal must also be so satisfied. This is a state of positive satisfaction or relative certainty which must be attained in relation to each criterion specifically.[9] Therefore, while neither the Applicant nor the Agency bear any formal onus of proof, the Applicant does bear the practical onus of placing before the Tribunal, or pointing to material before the Tribunal, that can persuade it that each of the supports in dispute is reasonable and necessary.[10]

1. The following documentary material is before me:
   1. The documents filed by the CEO in accordance with the obligations imposed by s 37 and s 38AA of the AAT Act (T-Documents),
   2. Hearing Tender Bundle prepared by the CEO in consultation with the Applicant, filed on 15 November 2024. I note that this included:
      1. The Applicant's Statement of Facts, Issues and Contentions dated 6 November 2024
      2. A Statement made by Peyton Trapezanidis, the Applicant's sister, dated 15 September 2023,
      3. A Carer Impact Statement made by George Trapezanidis, undated,
      4. A Joint Carer Impact Statement made by George and Lisa (the Applicant's mother) Trapezanidis, dated 6 November 2024,
   3. CEO's Statement of Facts, Issues and Contentions (SFIC) filed 15 November 2024.
2. The principal hearing was conducted on 18, 19, and 21 November 2024 and resumed on 19 and 20 December 2024. It was then adjourned to 31 January 2025 to provide the parties with the opportunity to agree terms in partial settlement of the dispute. Unfortunately, in the event, that did not prove possible.
3. The Applicant's parents, George and Lisa Trapezanidis, and his sister Peyton Trapezanidis each gave oral evidence under affirmation. Additionally, Dr Jody Tunnicliffe (the Applicant's Specialist Support Coordinator), Dr Janine Bounds (the Applicant's Psychologist), Ms Liana Burrows (the Applicant's Exercise Physiologist), Dr Matthew Birtles (the Applicant's General Practitioner), Mr Greg Barry (Consultant, SDA Services), and Ms Caitlin Lorimer (the Applicant's Occupational Therapist), were called as witnesses in the Applicant's case and each gave evidence under affirmation.
4. The CEO called as a witness, an independent expert she had engaged, Mr Tim Angel, Occupational Therapist, who gave oral evidence under affirmation.

1. The NDIS Act is founded upon an explicit values base which is found in its objects (s 3), general principles (s 4), general principles guiding actions (s 5), and with respect to participants and their plans, in more specific principles contained in ss 17A and 31. It is unnecessary for present purposes to set out these value statements in detail.
2. In giving effect to the objects of the Act, regard must be had to the need to ensure the financial sustainability of the NDIS: s 3(3)(b). It is also a general principle that, relevantly, the CEO and any other person performing functions or exercising powers under the NDIS Act is to have regard to the need to ensure the financial sustainability of the NDIS: s 4(17).
3. Section 33 of the NDIS Act sets out the matters that must be included in a NDIS Participant Plan.
4. Pursuant to s 33(1), the Plan must include the Participant's Statement of Goals and Aspirations.
5. Pursuant to s 33(2), the Plan must include a SoPS, prepared with the participant and approved by the CEO that specifies, relevantly to this case, (b) the reasonable and necessary supports (if any) that will be funded under the NDIS, and (c) the date by which or the circumstances in which, the Agency must reassess the plan.
6. Section 34 of the NDIS Act determines what is a "reasonable and necessary support" for the purposes of s 33(2):

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

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

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

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

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

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

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

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

Note: For the purposes of paragraph (aa):

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

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

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

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

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

Value for money > > 3.1 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...;

...

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

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

Effective and beneficial and current good practice

3.2 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.

Reasonable family, carer and other support

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

...

(b) for other participants:

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

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

• (A) the age and capacity of the participant's family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and
• (B) the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and
• (C) the extent of any risks to the long term wellbeing of any of the family members or carers ...; and

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

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

...

General criteria for supports

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

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

...

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

1. Additionally, the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Rules 2024 (Cth) (the NDIS Supports Transitional Rules) and the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth) (the Miscellaneous Provisions Rules) are relevant in determining the paragraph 34(1)(f) consideration.
2. The National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 Cth) (SDA Rules) govern a participant's eligibility for SDA and the circumstances in which specific categories of SDA will be approved.
3. The "eligibility rules" are found in Rules 11 to 14 of the SDA Rules. They provide:

11 Eligibility to receive support for specialist disability accommodation > > A participant is eligible to receive support for specialist disability accommodation under the National Disability Insurance Scheme if the CEO is satisfied that: > > (a) the participant:

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

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

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

12 When a participant has an extreme functional impairment

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

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

(i) mobility;

(ii) self-care;

(iii) self-management; and

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

(2) For the purposes of assessing whether a participant has an extreme functional impairment, the CEO may have regard to:

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

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

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

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

13 When a participant has very high support needs

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

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

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

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

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

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

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

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

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

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

14 When a participant meets the SDA needs requirement

(1) A participant meets the SDA needs requirement if, when compared to other supports alone, combined specialist disability accommodation and other supports would:

(a) better assist the participant to pursue the goals, objectives and aspirations set out in the participant's statement of goals and aspirations; and

(b) be more effective and beneficial, where possible, in:

(i) mitigating or alleviating the impact of the participant's impairment upon the participant's functional capacity; and

(ii) preventing the deterioration of the participant's functional capacity; and

(iii) improving the participant's functional capacity; and

(vi) maintaining or promoting the participant's ability to build capacity, including in the medium or long term; and

(iv) maintaining or promoting the participant's opportunities to develop skills; and

(c) if the participant has very high supports needs - be more effective and beneficial, where possible, in:

(i) reducing the participant's future needs for supports which might be required due to inappropriate accommodation; and

(ii) assisting the participant to pursue goals related to life opportunities and life transitions; and

(d) if the participant has an extreme functional impairment - be more effective in providing the participant with stability and continuity of support; and

(e) represent better value for money.

(2) For the purposes of paragraph (1)(e), regard must be had to the following matters if the participant has very high support needs:

(a) whether combined specialist accommodation support and other supports would be likely to substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;

(b) the cost of providing the participant with supports needed to live in accommodation other than specialist disability accommodation, taking into account:

(i) whether those supports may be shared with other participants; and

(ii) limitations of the participant's informal support network.

1. The Rules related to the specific category of SDA that will be approved for an eligible participant are found in Rules 15 to 19 of the SDA Rules. For present purposes it is sufficient to identify those Rules by reference to Rule 15, which provides:

15 Matters to be determined by CEO in respect of each eligible participant > > (1) The CEO must determine the following matters for an eligible participant:

(a) the SDA building type that is appropriate to support the eligible participant (see section 16);

(b) the SDA design category that is appropriate to support the eligible participant (see section 17);

(c) the area in which the specialist disability accommodation is to be located (see section 18):

(d) whether the specialist disability accommodation is to be provided as an in-kind support.

Note: The CEO may determine more than one SDA building type, SDA design category or location in relation to an eligible participant. The SDA building type, SDA design category and location must be specified in the participant's plan; see section 19.

1. The CEO has issued various Operational Guidelines on a variety of topics relevant to the supports in dispute in this case to guide the Agency's decision-making. I will refer to these Guidelines, where relevant, following, in my consideration of the supports in dispute.
2. Unlike the NDIS Act and Rules these are policy documents that are not binding upon the Tribunal. Nevertheless, it is long-established principle that the Tribunal should apply government policy relevant to an issue before it for consideration unless there is good reason not to do so, such as an inconsistency with the Act or a Rule.[11]

1. Having regard to the current state of the law, the questions that must be asked in this review, and the sequence in which they must be asked and answered is as follows:

(a) Are the supports that are in dispute NDIS Supports as defined?

If the answer to this question is "no" with respect to any of the supports in dispute, that support can no longer be considered for approval in the Applicant's SoPS because it cannot meet the requirement of s 34(1)(f).

If the answer to (a) is "yes" with respect to any of the supports in dispute, then that support can be considered for approval in the Applicant's SoPS if it is a support that is necessary to address needs of the Applicant that arise from an impairment in relation to which she meets the disability requirement. Therefore:

(b) What are the Applicant's permanent impairments that result in substantially reduced functional capacity to undertake any of the activities of communication, social interaction, learning, mobility, self-care and self-management, and which affect his capacity for social or economic participation?

(c) Do any of the supports in dispute meet the needs of the Applicant arising from an impairment in relation to which he meets these disability requirements?

If any of the supports in dispute do not meet the needs of the Applicant arising from an impairment in relation to which he meets the disability requirements then they cannot be considered for inclusion in his SoPS because they cannot meet the requirements of s 34(1)(aa).

(d) If the answer to (c) is "yes" then ask whether the support in dispute meets the requirements of s 34(1)(a), (b), (c), (d) and (e) and Rule 7 of the Miscellaneous Provisions Rules.

1. Specifically with respect to SDA support, although the general provisions of s 34(1) apply in the consideration of this support, as will be apparent from what is set out above, the SDA Rules require more detailed consideration of several matters including some that are at least partially co-extensive with the s 34(1) considerations. I have explained the structure of analysis required in the consideration of SDA support in Allen,[12] and I adopt what I have said there for present purposes.[13]

1. Relevantly to this case, Schedule 1 of the Transitional NDIS Supports Rules prescribes those supports that are NDIS Supports for the purposes of ss 10 and 34(1)(f) of the NDIS Act. With respect to the supports in dispute:
   • - Item 1 prescribes a "Accommodation assistance or tenancy assistance" category, which is defined, relevantly, to include "[s]upports that build capacity, guide, prompt, or assist a participant to do activities for finding or keeping appropriate accommodation, [which] includes the following: ... "(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",
   • - Item 5 prescribes a "Assistance with daily life tasks in a group or shared living arrangement" category which is defined relevantly to include "[supports that provide assistance with or supervision of daily living tasks to participants in a shared living environment [which] includes the following (a) supports provided on a temporary or ongoing basis; (b) supports for short-term accommodation and respite; ...",
   • - Item 15 prescribes a "Development of daily care and life skills" category which is defined to include "[s]upports 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) [which] includes increasing the participant's ability to undertake the following activities: (a) shopping; (b) meal preparation; (c) managing finances; (d) managing a participant's own personal care; (e) travel and use public transport; (f) engage in social activities; (g) improve relationship and social skills,
   • - Item 18 prescribes a "Exercise physiology and personal well-being activities" category which is defined to be "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", which includes "(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", and "(c) maintenance of muscle strength, range of motion, balance and mobility",
   • - Item 27 prescribes a "Participation in community, social and civic activities" category which is defined to be "[s]upports that assist a participant to take part in community, social and cultural and civic activities [which] includes the following: (a) supporting participants during relevant activities; (b) working with participants to develop their ability to partake in these activities,
   • - Item 29 prescribes a "Specialist disability accommodation" category, which is defined to be "[t]he provision of specialist disability accommodation which is accommodation for a participant who requires specialist housing solutions, including to assist with the delivery of supports that cater for the person's extreme functional impairment or very high support needs",
   • - Item 34 prescribes a "Therapeutic supports" category which is defined to be "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".
2. I am satisfied having regard to these prescriptions that each of the supports in dispute, as identified by the Applicant, are NDIS Supports for the purposes of s 34(1)(f) of the Act. The request for MTE falls within the scope of Item 1, the request for STE falls within the scope of Item 5, the request for exercise physiology falls within the scope of Item 18, the request for 'one to one support worker assistance falls within the scope of Items 15 and 27, the request for support for SDA falls within the scope of Item 29, and the requests for occupational therapy and psychology fall within the scope of Item 34 of Schedule 1 of the NDIS Supports Transitional Rules.
3. However, with respect to the Applicant's MTA, it is necessary to consider further whether the support described is capable of being MTA. That is because merely identifying it as such does not make it so. I turn to that consider issue in my further discussion of that requested support below.
4. I also note for completeness that at the time the CEO filed her SFIC there was a controversy between the parties as to whether the requested psychology support was a NDIS Support because the CEO apprehended that this support was intended for the Applicant's parents rather than for the Applicant himself.[14] However, in the course of hearing evidence from the Applicant's psychologist, Dr J B, I understood counsel for the CEO to accept that the Applicant is the intended beneficiary of this support, not his parents, and that this objection to psychology support fell away.
5. With respect to the Rule 7(3) of the Miscellaneous Provisions Rules I am satisfied on a putative basis that these supports are most appropriately funded through the NDIS. They are not available to the Applicant through any general system of service delivery or support services provided by any other entity, including as part of a universal service obligation, or in accordance with reasonable adjustments required under a law dealing with discrimination based on disability.

1. There is no issue between the parties that the Applicant's relevant diagnosed health conditions for the purpose of this stage of analysis are Level 3 ASD, mild intellectual disability, and treatment resistant schizophrenia.
2. The impairments that are derivative of these conditions for the purposes of paragraph 34(1)(aa) are (using the International Classification of Functioning, Disability and Health[15] to identify these impairments with precision[16]):
   1. Impairments of global mental functions,[17] being impaired intellectual functions,[18] global psychosocial functions,[19] temperament and personality functions (specifically, psychic stability),[20] and energy and drive functions (specifically, impulse control),[21] and
   2. Impairments of specific mental functions,[22] being impaired emotional functions (specifically, appropriateness of emotion and regulation of emotion),[23] thought functions (specifically, form of thought, content of thought and control of thought),[24] and higher-level cognitive functions (specifically cognitive flexibility and insight).[25]
3. These are intellectual and neurological impairments, and impairments to which a psychosocial disability are attributable, for the purposes of s 24(1) and paragraph 34(1)(aa).
4. I do not understand it to be in issue that these impairments are permanent, or are likely to be permanent, that they result in the Applicant experiencing substantially reduced functional capacity to undertake the tasks and actions involved in communication, social interaction, learning, self-care and self-management, and that they affect his capacity for social and economic participation. Nor do I understand it to be in issue that the Applicant is likely to require support under the NDIS for his lifetime. I make those findings.[26]
5. The next issue to consider is whether the requested supports in dispute are necessary to meet the needs of the Applicant as they arise from these impairments. Again, this is a putative analysis that requires the Applicant to establish a logical nexus between his impairment related needs and the requested support. Whether within those premises the support constitutes value for money or will be effective and beneficial for the Applicant etc, are matters for separate consideration.
6. A controversy between the parties to which I will return following concerns the delivery model proposed for the occupational therapy, psychology and exercise physiology supports. It is proposed that these supports be 'delivered' to the Applicant indirectly in a way that is mediated by the either of the Applicant's parents or his sister who would have direct contact with the clinician. In my view this model of delivery of the requested support is not a matter that arises for consideration under paragraph 34(1)(aa). Whether supports delivered in this way will be effective and beneficial for the Applicant is a matter that arises for consideration under paragraph 34(1)(d).
7. I am satisfied that each of the requested supports, as identified by the Applicant, is necessary to meet his needs as these arise from his impairments of global and specific mental functions on the following bases:
   • - With respect to MTE, STA and SDA the Applicant is unable, because of his impairments, to meet his own subsistence related needs, including in relation to shelter. As an adult it is not reasonable that he continues to rely upon his older parents to meet these needs. They are exhausted from meeting his support needs and require relief.
   • - With respect to one-to-one support worker assistance, without such assistance the Applicant is unable, because of his impairments, to meet his own subsistence related needs, or to socialise with others. This support will assist him to develop his functional capacity for communication, learning, social interaction, self-care and self-management,
   • - psychology support is necessary to meet the impairment related needs of the Applicant on the basis that this speciality is concerned with mental processes and behaviour in relation to which the Applicant experiences significant challenges. It has the potential to improve his functional capacity for communication, learning, social interaction and self-management,
   • - occupational therapy support is necessary to meet the impairment related needs of the Applicant on the basis that he experiences substantially reduced functional capacity to undertake the tasks and actions involved in most life activity areas. This specialty is focused on the development of strategies and the provision of assistive technologies to improve function,
   • - exercise physiology support is necessary to meet the impairment related needs of the Applicant on the basis that, due to his impairments, he currently lives a sedentary isolated lifestyle and is deconditioned. Clinical support in this speciality has the potential has the potential to improve his substantially reduced capacity for self-care and may also improve his functional capacity for social interaction.
8. I now turn to further consider the Applicant's request identified as MTA against the paragraph 34(1)(f) requirement in greater detail, each other requested support against the criteria specified in paragraphs 34(1)(a), (b), (c), (d) and (e) the relevant rules.

1. The Applicant requests approval of funding for 180 days MTA annually until SDA premises become available to him. It is submitted in support of this request, principally by reference to the evidence of Mr and Ms Trapezanidis and Ms Lorimer, his Occupational Therapist, that:
   • - The Applicant's current living configuration in his family home is seriously unsuitable for his needs and has led to a significant decline in his quality of life as compared with when he occupied that property alone and his family lived elsewhere under the ISP arrangement. In this respect it is said that the Applicant has lost significant psychosocial and physical function, has limited engagement with daily tasks, often remaining in bed, staring at the ceiling, and barely moving for most hours of the day. The Applicant has become deconditioned because of his inactivity and frequently expresses distress at his circumstances,
   • - there are no currently available SDA options in the locality in which the Applicant requests this support. There is a current expectation of a lengthy wait for a suitable SDA option to become available, as this is likely to involve construction of this dwelling. The Applicant requires adequate accommodation in the meantime,
   • - the Applicant's utilisation of MTA will assist in his transition to SDA by desensitising him to an environment/s other than his family home,
   • - the Applicant's parents are under continuous serious emotional and physical stress because of the demands associated with supporting him. MTA is necessary to provide them with sustained relief from their carer roles.
2. Dr Bounds provides a summary of the difficulties faced by the Applicant and his family in their current living environment in her report dated 12 February 2024:[27]

The Trapezanidis family have had to shift back into their housing commission home with Brandon since April of 2022. All being together since early April has been a very fraught time. Some of the reasons are that:

a) Brandon has been very dislocated having everyone back in the home. He cannot walk in the house freely and spends most of his time in bed [which concerns me greatly]. He is also very affected if any household member is making too much noise. As well, he does not like to move around within the house or outside.

b) Brandon is also very affected by not having a sensory room any longer. He used to use this room to keep himself calm.

c) Brandon will not eat the food prepared for the while family. His schizophrenia leads him to think that the food is poisoned. He will only eat certain food in prepared packages.

d) As well, Brandon has multiple showers due to bowel or bladder accidents and to help himself calm. However, there is only one bathroom in the house [with the household's one toilet in the bathroom too], so there is a lot of pressure on all family members being able to use the bathroom.

e) Brandon also was used to getting himself a drink and food overnight but when he goes into the kitchen [which adjoins the lounge room] during the night he disrupts his sister [who has to sleep in the loungeroom], which impacts on her sleep.

Current impact on Brandon

1. I am very concerned that Brandon is now spending almost all of his time in his room during the day and at night-time. Often, he is lying on his bed. At other times he may pace in his room, and at night he paces in the hallway which is disruptive to others trying to sleep. In general, he cannot be encouraged to come out of his room as he does not like being amongst too many people, or out where there is too much light. This means though, that the amount of exercise he is getting by moving around more freely is greatly reduced.
2. As well, the positive stimulation Brandon was receiving in his sensory room [which he enjoyed] can no longer happen because there is no room for this facility.
3. in addition, the routines he had previously established for himself can now no longer exist for him and this is increasing his anxiety and distress.
4. As well, if he cannot get into the bathroom when he needs to, because it is being used by another family member, he becomes highly distressed, and he sometimes has a toileting accident while waiting.
5. The CEO opposes MTA being approved as a support for inclusion in the Applicant's SoPS on the basis that the request, in substance, is not a request for MTA as prescribed and is not a NDIS Support that can be approved because of the paragraph 34(1)(f) requirement. In the alternative, if the Tribunal does determine that the support requested is MTA, the CEO contends it does not represent value for money and is not effective and beneficial as required by paragraphs 34(1)(c) and (d) respectively. She does so by reference to the prescription of MTA contained in the NDIS Supports Transitional Rules and the Agency's MTA Operational Guidelines[28] which, it is submitted, require that MTA support is only available, relevantly, in circumstances where the participant is waiting to move into a confirmed long-term housing solution; that is, there must be a long-term home to move into before MTA can be approved. She also contends that the Agency's Operational Policy limits MTA to a 90-day period. It is submitted that MTA is not an ongoing housing solution, or one which may be rolled over indefinitely because SDA has not been found. The CEO submits that once SDA is secured, even if not immediately available, MTA may then be considered.
6. The Agency's MTA Operation Guidelines describe this support and the circumstances in which it is available as follows:

What is medium term accommodation? > > Medium term accommodation is one of the home and living supports we may fund. Its funding for somewhere to live if you can't move into your long term home because your disability supports aren't ready. > > Medium term accommodation isn't a standalone support. We only include it in your plan as part of your other home and living support needs. We generally fund medium term accommodation for up to 90 days. However, this can be extended in limited circumstances. Talk to us if your longer term housing will take more than 90 days to be ready. > > Funding for medium term accommodation only covers the cost of the accommodation for the time you stay there. It's a temporary and extra cost you have due to your disability support needs. For example, you might need medium term accommodation while you wait for your home modifications to be completed. > > ... > > We usually fund medium term accommodation as a once-off support. This is because you probably won't need medium term accommodation again once you move into your long term home. It isn't short term accommodation or emergency housing. There are other mainstream and community supports that can provide general housing and accommodation support. > > ... > > Are you eligible for medium term accommodation? > > To be eligible for medium term accommodation, you must meet all 3 criteria: > > 1. You have a long-term home you will move into after medium term accommodation. > > 2. You can't move into your long term home yet because your disability supports are not ready. > > 3. You can't stay in your current accommodation while you wait for your long-term home. > > ... > > Do you have a long-term home you will move to? > > A long-term home is the home you expect to live in for the future, and its been confirmed you can live there. > > ... > > When can you move into your long term home? > > We only fund medium term accommodation if you can't move into your long term home now because your disability supports aren't ready. > > For example, you might need medium term accommodation if you can't move into your long-term home until: > > ...

• You've been offered a place in a home where you'll get supported independent living or individualised living options - for example, if you're waiting for someone to move out of the home before you can move in.

You need to give us evidence of the date when you can move into your long-term home, generally within 90 days. > > ... > > Can you stay in your current accommodation while you wait for your long term home? > > We only fund medium term accommodation if you can't stay in your current accommodation while waiting for your long term home. > > For example, you could give us evidence that: > > ...

• there's been a breakdown in your supports, so you can't live in your current home.

... > > If you have a stable home now, we'd usually expect you can keep living there until you can move to your new home. For example, if you're living in your family home, it might be reasonable for you to keep living there until your new home is ready.

1. As I have stated above the Agency's Operational Guidelines are not binding upon the Tribunal, but they ought to be applied unless to do so would be contrary to or inconsistent with the Act and Rules.
2. The NDIS Supports Transitional Rules situate MTA in Schedule 1 - Supports that are NDIS supports unless otherwise provided in the category of "accommodation assistance or tenancy assistance" which is defined as "supports that build capacity, guide, prompt, or assist a participant to do activities for the finding or keeping appropriate accommodation". MTA is described as indicated "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". As so described, it is difficult to see how MTA involves the finding or keeping of appropriate accommodation. I need not dwell on that for present purposes.
3. In any event, both its specific description in the NDIS Supports Transitional Rules and in the Agency's Operational Guidelines conceive of MTA as being time limited, non-recurring, transitional accommodation that is available between two fixed points - being current unsuitable accommodation and long-term accommodation that is secured for the participant but not ready for habitation.
4. Schedule 2 of the NDIS Supports Transitional Rules describes those supports that generally are not NDIS Supports. The use of the word "generally" in the title to the schedule can be misleading. The schedule is more prescriptive than that word would suggest. A support referred to in Schedule 2 is only capable of being transformed into a NDIS support in limited circumstances via a replacement support determination made by the CEO. On review, this Tribunal has no power to make a replacement support determination.
5. Item 19 of Schedule 2 prescribes a category of "housing and community infrastructure" as not being a NDIS support. Within that category are the following supports: (b) housing for people with disability, other than participants eligible for specialist disability accommodation; (g) homeless-specific services including homelessness outreach and emergency accommodation; and (k) crisis housing.
6. The threshold issue in consideration of this requested support is therefore whether the specific request made by the Applicant is capable of constituting MTA, or whether it is another form of housing which is not a NDIS Support.
7. As a starting point it may be accepted that the Agency's Operational Policy is not to be construed inconsistently with the NDIS Supports Transitional Rules. Therefore, relevantly, a requested support that amounts to general housing support, emergency or crisis accommodation will not be a NDIS Support. That is because these are general systems of support available to everyone regardless of characteristics such as impairment and disability, at least in theory.
8. But in this respect the Applicant is not homeless. He does not seek or require, at least currently, emergency or crisis accommodation. Nor does he seek general housing assistance. He has obtained approval for SDA. His requested support is therefore not excluded as a NDIS support by Schedule 2 of the NDIS Supports Transitional Rules.
9. The issue is whether it is capable of being a NDIS Support in accordance with the description of MTA in Item 1 of Schedule 1 of the NDIS Supports Transitional Rules. There are three elements to be satisfied in this respect. They are:
   • - the participant cannot move into long-term accommodation,
   • - due to that accommodation or other supports not being ready, and
   • - current accommodation is not suitable.
10. With respect to the third element, I do not understand there to be any controversy that the Applicant's current accommodation is not suitable for him. The CEO has approved SDA and SIL support for him on this basis. In any event I make that finding based on the evidence before me, including that of Dr Bounds extracted above. The Applicant's current accommodation is not suitable for him because it does not have the features required to meet his impairment and disability related needs. It also results in an environment that places unreasonable constraints and demands on other family members.
11. With respect to the first and second elements it is to be observed that what must be found to be causal of the participant's inability to move to long-term accommodation is that accommodation not being ready.
12. The reference to long-term accommodation is qualified using the pronoun "that" which, relevantly, 'identifies a specific thing', or 'refers to a specific thing previously mentioned, known or understood'.[29]
13. In this case the CEO has approved SDA funding for the Applicant. Continued approval for that support will also flow from my decision in this review, albeit with some variation. However, the approval of funding for SDA does not secure that support. It only facilitates it being secured. Until the SDA into which the Applicant will move is identified and secured via some form of binding agreement with its supplier, he does not have long-term accommodation for the purposes of the description of MTA in the NDIS Transitional Rules. In this respect, it is not a question of SDA not being ready for the Applicant. It does not yet exist. It is this which is causal of the Applicant's inability to move into it.
14. In conclusion, while the support requested by the Applicant is not excluded as a NDIS support by Schedule 2 of the NDIS Supports Transitional Rules it is not included as a NDIS Support by Schedule 1 of those Rules. It is therefore incapable of being a NDIS Support that can be approved for inclusion in the Applicant's SoPS by operation of paragraph 34(1)(f).
15. I note that had the Applicant secured long-term accommodation in the form of SDA I would not have considered his request for approval of funding for 180 days of MTA disqualifying. The description of MTE in Schedule 1 of the NDIS Supports Transitional Rules does not prescribe an upper limit on the number of days that may be approved and nor are the Agency's Operational Guidelines prescriptive in this respect. While they indicate that such funding is usually only approved for up to 90 days, they preserve discretion to depart from that usual position in the circumstances of a particular case. Even if that were not so, as neither the Act nor the Rules prescribe an upper limit on the number of days of MTE that may be approved, the question to be answered would be what is reasonable and necessary in the Applicant's circumstances, bearing in mind what her Honour, Mortimer J (as she was then) said in G v Minister for Immigration and Border Protection at [171]:[30]

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

1. The Applicant requests approval of funding for 56 days per year of STA, or respite care, until SDA becomes available to him, and he can utilise the SIL support for which he is already funded. It is proposed that the Applicant's support during periods of STA would be provided by Ms Peyton Trapezanidis based on the requested one-to-one support worker funding I consider following. I will deal with the issue of Ms Peyton Trapezanidis providing paid support to the Applicant in my discussion of the request for approval of funding for one-to-one disability support worker assistance.
2. Ms Lorimer, Occupational Therapist, provides the rationale for this requested support in her report as follows:[31]

Until long-term accommodation can be sourced for Brandon and his family, monthly respite/STA is required for Brandon's opportunities to rest/recover from over-exposure to people within his space, opportunities to engage in capacity building activities and to give relief to Brandon's informal supports. > > [I]... recommend[] 56 hours per year, provided by Peyton, at a paid rate commensurate with the price guide for respite. Short-term accommodation will only be available if in a remote location (e.g. very rural/cabin/away from people) and addressed in a graded capacity as a means of relief from current housing challenges.

3. Mr and Mrs Trapezanidis gave compelling evidence of Applicant's onerous support needs and the impact of this on their mental and physical well-being.[32] I will refrain from further setting out the details of this in these reasons for privacy reasons. Suffice to say that any reasonable person would be moved by what they must endure daily. At present, they experience no relief whatsoever from the demands of the Applicant's support. They are obliged to provide this support to him 24 hours per day, 7 days per week.
4. The provision of STA for the Applicant, which involves respite for his parents, is generally supported by other allied health professionals involved in his support, including Dr Bounds, Clinical Psychologist.[33]
5. I do not understand the CEO to challenge, at the level of general principle, the appropriateness of short-term accommodation being approved in respect of a participant and their family in these circumstances. What is challenged in the specific circumstances of this case is:
   • - The quantum of STA requested, which is twice that typically approved,
   • - The practical likelihood that this support, if approved, will ever be utilised, and
   • - The proposal that this support be associated with support worker assistance provided by Ms Peyton Trapezanidis.
6. The Agency's Operational Guidelines state the following about STA, relevantly:[34]

Our Guideline - Short-term Accommodation or Respite > > Quick summary: Short Term Accommodation, including respite, 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 > > ... > > Short Term Accommodation includes:

• personal care
• accommodation
• food
• activities you and the provider agree to.

Usually, we fund up to 28 days of Short Term Accommodation per year. You can use your Short Term Accommodation funding flexibly. For example, you might want to use it in a block of up to 14 days at a time or for one weekend a month. > > We fund standard rates for Short Term Accommodation ... > > Generally funding is for a group price, unless there is evidence you require individual support because of your disability. This means you may share supports with other people unless you need individual support because of your disability. > > ... > > We can only fund Short Term Accommodation if it relates to your disability support needs. > > We may fund Short Term Accommodation if:

• your family or informal supports can support you for longer
• you might not need as much support in the future
• it helps you maintain functional capacity
• it helps increase your independence
• it helps you do more activities.

... > > Short Term Accommodation is not for holidays. We only fund Short Term Accommodation when the need for this is related to your disability, such as for respite and skill building.

1. With respect to the quantum issue I note that the Agency's STA Operational Guideline refers to 28 days as an indicative ceiling on the quantum of days likely to be approved, it does not prescribe that limit. That is manifest in the use of the word "usually", which on a straightforward basis, means not always. I also note that while these Operational Guidelines also contemplate STA being funded on a group basis, it can also be funded on an individual basis if that is required because of the participant's specific disability related need. In other words, a decision-maker is provided with flexibility and discretion in relation to these matters.
2. The CEO's concerns about the practical likelihood of this support being utilised arise from the evidence that the Applicant has not left is home environment for some years and has entrenched resistance to engaging with other people and to exposure to other environments. In this context it is submitted that approval of such a large quantum of STA is likely to be a futility because it will not be used.
3. As I have said, I will deal with the issue of Ms Peyton Trapezanidis providing support to the Applicant on a paid basis in my consideration of the one-to-one disability support worker request. However, it is relevant to note here that, at least initially, the STA request if approved, would involve Ms Trapzeanidis working with the Applicant for the whole period he is utilising STA, that is on a 24-hour basis on multiple consecutive days.
4. I turn now to consider the requirements of s 34(1).
5. With respect to the paragraph 34(1)(a) requirement I am satisfied that STA support will assist the Applicant to pursue his first short-term goal, which is for his "... family to receive supports to enable them to continue to care for [him]", which is to be achieved by the Applicant "...begin[ing] to engage with formal supports to be more independent and less reliant upon [his] family".
6. However, for the reasons I explain further following, satisfaction in relation to this requirement is only reached if Ms Peyton Trapezanidis' involvement in the provision of STA on a paid basis is limited to a period of transition to this support being provided on a formal basis by a support provider that is independent of the Applicant's family, and moreover that the support she provides the Applicant during this transition period is kept within reasonable limits. That is, it cannot be accepted that she provides 24/7 support for the Applicant on a paid/unpaid basis during periods he is in STA. Such an arrangement would be contrary to the goal decreasing reliance upon family members for support, and it is likely to be exhausting for Ms Trapezanidis, putting her well-being at risk.
7. I am also satisfied that this support, if approved, would assist the Applicant to pursue his last stated medium- or long-term goal, which in part is "to increase [his] social participation ..." by increasing his exposure to other people and environments. That state of satisfaction is obtained subject again to Ms Peyton Trapezanidis providing this support as part of a transition to the Applicant's acceptance of formal supports.
8. With respect to the paragraph 34(1)(b) requirement, I am satisfied that this support will assist the Applicant to undertake activities that will facilitate his social and economic participation. That is because it will involve his progressive exposure to people and environments outside his immediate family and current home. The evidence is that this will take time and patience. Satisfaction of this requirement is predicated on responsibility for the provision of this support being transferred from Ms Peyton Trapezanidis to a provider independent of the family within a transitional period.
9. With respect to the paragraph 34(1)(c) and (d) requirements, as a matter of general principle there can be no issue given the level and challenge of Applicant's support needs, the absence formal supports, and the consequent impact on his family, particularly his parents, that this support constitutes value for money and will be effective and beneficial. Having regard to Rules 3.1(a) and (e) the funding level for this support will be determined in accordance with the Agency's pricing policy so no concern arises as to the cost of the support being excessive.
10. The support requested is for individual STA where, indicatively, the Agency's STA Operational Guidelines provide for this support to be funded on a group basis. However, those Guidelines permit funding for individual support where this is required due to disability-related need. The Applicant has entrenched isolative and other challenging behaviours. It is not suggested anywhere in the evidence that he can tolerate a group-based program. The additional cost associated with funding STA on an individual basis is therefore reasonable and necessary on that account.
11. What this leaves in contest is the quantum of STA support that constitutes value for money, and which will be effective and beneficial now. In this respect, for reasons I explain following, I have determined that the reassessment date for the Applicant's plan (SoPS) should be 12 months from the date of my decision. This question is therefore to be approached based on a 12-month horizon, not the 36-month horizon that the Applicant has proposed.
12. Within the next 12 months I am satisfied that due to the Applicant's entrenched socially isolative and other challenging behaviours there is an unlikelihood that the Applicant will utilise 56 days of STA. But this is a separate issue to whether STA in this quantum constitutes value for money or would be effective and beneficial. If he were to fully or substantially utilise this support, there can be no doubt about its benefit to him or his family having regard to the extremis in which they currently live. If he does not utilise this support at the requested rate, it will leave some available funding un-used and not drawn down. It will not be lost to the NDIS. Any concern about this funding being used for a different purpose can be managed by including this support in the Applicant's SoPS as a 'stated support', meaning that it can only be utilised for this stated purpose. In any event I note that no concern was raised with me about funding for this support being used other than for STA.
13. With respect to the paragraph 34(1)(e) consideration I am satisfied that the funding of this support takes account of what it is reasonable to expect families to provide, subject to what I say following in consideration of the request for one-to-one disability support worker assistance. Otherwise, in short summary, the Applicant is an adult. It is not reasonable to expect his family to provide daily care for him on a continuous basis. That is even more so because of his severe challenging behaviour. Quite apart from the benefit to the Applicant that will potentially accrue from his exposure to other people and environments, this support will provide respite for his parents, assisting them to maintain their current support relationship with the Applicant until SDA is secured and he is able to use his SIL funding.
14. For the foregoing reasons I am satisfied that 56 days of STA support is reasonable and necessary and ought to be approved for inclusion in the Applicant's SoPS. It is to be a stated support, meaning that the funding approved can only be utilised for this support.

1. The Applicant requests approval of Specialist Disability Accommodation Support (SDA). The 'Building Type' that is requested is a 'house' for '1 resident'. The 'Design Category' that is requested is 'robust, with breakout room'. The 'Location' requested is Warrnambool and South-West.
2. This request is to be understood in the following context.
3. Since the CEO's decision of 5 October 2022, the Applicant's SoPS has included approval of funding for SDA, but not the Building Type or Design Category sought by the Applicant. The approved funding is for a house with 3 residents in the 'Improved Liveability' Design Category. The 'Location' approved is Warrnambool and South-West. Funding of up to $39,960.00 per annum was approved subject to the provision of a quotation.
4. At the hearing outset counsel for the CEO indicated that the CEO had reconsidered her position and was now satisfied that the evidence supported the approval of SDA, where the 'Building Type' is Duplex, villa or townhouse, for 1 resident with 2 bedrooms, in the 'Design Category' Improved liveability. It is implied that the approved location would remain Warrnambool and South-West. This would involve approval of up to $94,470.00 per SDA per annum subject to provision of a quotation.[35] That position had been communicated to the Applicant's representatives prior to the hearing, but it did not resolve the dispute in relation to this support.
5. What remains in dispute between the parties in relation to SDA is:
   • - whether the 'Building Type' should be a 'house' as distinct from a 'duplex, villa or townhouse'. The gravamen of this distinction is that the Applicant seeks a standalone dwelling which does not have common property with other dwellings, and which cannot be overlooked,
   • - whether the "Design Category' should be 'robust' as distinct from 'improved liveability'. The gravamen of this distinction is that the Applicant seeks a dwelling that includes a 'breakout room' to be used as a sensory room.
6. There are nuances in respect of the SDA 'Building Types' and 'Design Categories'. The CEO submits that if funding is approved in respect of the 'Building Type' "duplex, villa, townhouse" the Applicant is not precluded from selecting a freestanding house with the features he desires provided its cost is within the funding 'envelope' approved. It is submitted that this is a matter that is capable of being negotiated between his Support Coordinator and SDA Provider.
7. Having regard to the above, the dispute between the parties in relation SDA support is a narrow one, and it is disappointing that it could not be resolved cooperatively between them. This will necessitate me making findings of fact at each stage of the analysis required for the approval of SDA as a support, but I will do so on the understanding that, apart from what I have set out above, the facts and issues related to the approval of SDA support are not in issue.
8. In Allen[36] I have set out the sequence of analysis required to determine a participant's eligibility for SDA, and if so, whether such support is reasonable and necessary for them, and if so, what SDA features are appropriate in the participant's circumstances.[37] I adopt what I said there for present purposes.
9. The first stage of analysis requires determination of whether the Applicant is eligible for SDA. To be eligible for SDA he must either have 'an extreme functional impairment' or 'very high support needs' as defined and he must meet the 'SDA needs requirement'.
10. A person will have an extreme functional impairment if their impairment(s) result in extremely reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the activities of mobility, self-care, or self-management, and they have a very high need for person-to-person support in undertaking that activity even with assistive technology, equipment or home modifications.
11. The Agency's SDA Operational Guidelines state that the tasks and actions involved in the self-management life activity area include (but are not limited to): 'housework, following routines, making friends and relationships and managing your behaviour'.
12. In Allen I expressed the opinion that an 'extreme' functional impairment is to be understood as one which results in the highest degree of difficulty in undertaking a task or action which is equivalent or close to being completely unable to perform that task or action.[38]
13. In this case the evidence is that the Applicant has a degree of psychosocial functional impairment that results in him being completely unable to manage his behaviour, make friends and form relationships outside his immediate family, follow normative daily routines (as distinct from rigid and ritualistic behaviours), and undertake normative domestic activities. I make that finding. As I have found the Applicant to have extremely reduced functional capacity in one of the life activity areas specified in Rule 12(1), it is unnecessary for me to consider if he also experiences extremely reduced functional capacity in either of the other two areas specified.
14. The evidence is also to the effect that the Applicant has a very high need for direct person-to-person support. In this respect, in their Carer Impact Statements, Mr and Mrs Trapezanidis outline their daily support activities for the Applicant, which involves virtually continuous support with domestic tasks and his self-care. I also note that the CEO accepts that the Applicant will require SIL support involving direct support at 1:1 intensity 24 hours a day, 7 days per week, including 8 hours of overnight inactive support. On these bases I find the Applicant has a very high need for direct person-to-person assistance.
15. I therefore conclude that the Applicant has an extreme functional impairment for the purposes of Rules 11 and 12 of the SDA Rules.
16. I now turn to consider if the Applicant meets the SDA needs requirement as this is prescribed in Rule 14 of the SDA Rules. As I sought to explain in Allen this requires a comparison of outcomes for the Applicant from two hypothetical support arrangements, being 'other supports alone' and 'the combination of SDA with other supports' against four[39] criteria specified in the Rule, some of which have subcomponents.
17. With respect to sub-rule 14(1)(a) I am satisfied that SDA with SIL supports would better assist the Applicant to pursue the goals, objectives and aspirations set out in his Statement of Goals and Aspirations. The Applicant is unable to effectively realise any of his stated goals within the constraints of his current living environment, and due to his extremely reduced psychosocial function he is unable to live in a 'standard' dwelling obtained on the private or social housing rental markets, either with other people or alone. Having regard to the evidence, any attempt to accommodate the Applicant in a standard dwelling is likely to lead to housing instability and homelessness in my opinion.
18. With respect to sub-rule 14(1)(b) I am satisfied that SDA with SIL supports, as compared with other supports alone, would be more effective and beneficial for the Applicant in each of the five ways referred to in the Rule. Among other things, it would provide him with an environment in which he is better able to maintain emotional and behavioural regulation, engage in physical exercise, and obtain sensory stimulation and relief. A standard dwelling with other supports would not provide an equivalent level of amenity in these respects.
19. With respect to sub-rule 14(1)(d) I am satisfied that SDA with SIL support, as compared with other supports alone, will be more effective in providing the Applicant with stability and continuity of support. As I have already said, an attempt to accommodate the applicant in a standard dwelling on the private rental market or in social housing is likely to lead to housing instability and homelessness due to his emotional and behavioural dysregulation.
20. With respect to sub-rule 14(1)(e) I am satisfied that SDA with SIL support, as compared with other supports, represents better value for money. In this respect, on the evidence before me, having regard to the benefits of SDA with SIL support and its cost, there are no comparable supports that would achieve the same outcome at a substantially lower cost. As I have said, an attempt to accommodate the Applicant in standard housing is likely to lead to housing instability and potential homeless. Standard housing is also unlikely to contain design features suited to the Applicant's impairment related needs, particularly in relation to sensory stimulation and release. In these respects, SDA with SIL support, as compared with other supports alone, will also substantially improve the Applicant's life stage outcomes, and be of long-term benefit to him.
21. For the foregoing reasons, I am satisfied that the Applicant meets the SDA needs requirement.
22. Having been found to have an extreme functional impairment and to have met the SDA needs requirement, the Applicant is eligible to receive SDA support. I make that finding.
23. I now turn to stage 2 of the SDA enquiry as I have described it in Allen which is to consider if this support is reasonable and necessary for the Applicant having regard to the criteria specified in s 34(1). I note that I have already dealt with the paragraph 34(1)(aa) and (f) requirements earlier in these reasons.
24. With respect to the paragraph 34(1)(a) requirement, I note that the Applicant's Statement of Goals and Aspirations includes as a medium- or long-term goal "support to find suitable long-term safe housing" and "liv[ing] independently and alone." SDA support would obviously assist the Applicant to pursue that goal. I am also satisfied that it would provide an environment that is conducive to the pursuit of the Applicant's other stated goals, including the reduction of stress and anxiety and obtaining better mood regulation.
25. With respect to the paragraph 34(1)(b) requirement I am satisfied that SDA support will provide an environment that will assist the Applicant to build his functional capacity for emotional and behavioural regulation and for social interaction with others outside his immediate family. It is thus a support that will assist the Applicant to undertake activities to facilitate his social and economic participation. I note that on the evidence before me this is likely to require time and patience.
26. With respect to the paragraph 34(1)(c) and (d) requirements I have already determined that SDA support constitutes value for money and would be effective and beneficial in the stage 1 enquiry. I rely on those reasons in relation to s 34(1). Additionally, I am satisfied that SDA based on single occupancy constitutes value for money because group-based support is not viable having regard to the Applicant's emotional and behavioural dysregulation, his socially isolative behaviour, and his extreme suspicion of other people. Attempting to accommodate the Applicant with others is likely to lead to the breakdown of independent living arrangements. I am also satisfied that SDA with a room able to be dedicated as a sensory room or pod constitutes value for money and would be effective and beneficial given the Applicant's impairments and his need for sensory stimulation and relief. The evidence is compelling that he obtained functional gains when such a facility was available to him in the family home.
27. The Applicant seeks approval of funding for a 'house' with 2 bedrooms and another separate room that can be a dedicated sensory room. In the Stage 3 enquiry I explain that accommodation for staff who provide on-site overnight assistance is additional to the number of rooms specified for the Applicant's use in SDA. The '2nd bedroom' requested by the Applicant is therefore not necessary to accommodate staff. It is a room wholly available for his use. That being so, I am unable to understand why this 2nd bedroom cannot be used as a sensory room or pod. To the extent that there would be any cost differential between obtaining an SDA dwelling with 2 bedrooms and other room, and one with just two bedrooms, that additional cost would not constitute value for money in my opinion. The Applicant's needs for sensory stimulation and relief can be met equally effectively utilising the 2nd bedroom. I also note in this context that the SDA design standards require reasonable other amenities to be available, including a living and dining area. The Applicant will not be confined to a bedroom and a sensory room.
28. With respect to the paragraph 34(1)(e) requirement I am satisfied that funding for SDA takes account of what it is reasonable for families, carers, informal networks and the community to provide. The Applicant is an adult. On a normative basis he ought to be supported to live independently of his family. It is not reasonable for his family to be expected to provide the level of accommodation and support the Applicant requires at his and their stage of life.
29. Having regard to these conclusions, I am satisfied that SDA is a reasonable and necessary support the funding of which ought to be approved for inclusion in the Applicant's SoPS.
30. Stage 3 of the SDA enquiry I have described in Allen is therefore reached. It is now necessary to determine the SDA Building Type, Design Category and location that is appropriate for the Applicant. This involves the application of Rules 15 to 18 of the SDA Rules. It is where the controversy between the parties is located.
31. Dealing first with Rule 18 and the issue of the location for SDA Support, the Applicant requests Warrnambool and South-West. I understand this to be 'an area designated by the Australian Bureau of Statistics as a Statistical Area Level 4 under the Australian Statistical Geography Standard' as required by sub-rules 15(1)(c) and 18(1) of the SDA Rules.
32. For the purposes of sub-rule 18(1)(d) and g(i) the Warrnambool and South-West area is the geographic area in which the Applicant and his family currently live, and in which they plan to continue to live. The Applicant's parents and sister express an intention to remain involved as informal supports for the Applicant even upon his full acceptance of available formal supports. For the purposes of sub-rules 18(1)(a) and (b) it is the Applicant's preference, expressed through his Plan Nominee, that he obtains SDA support in this area. It aligns with the Applicant's Statement of Goals and Aspirations which are premised upon him maintaining an ongoing close relationship with his family after he moves to independent living. With respect to sub-rules 18(1)(c), (f) and (g)(ii) and (iii) the Warrnambool and South West area is a Victorian regional area in which there are mainstream medical, allied health and community services, specialist disability services, and mainstream recreational and entertainment venues that are capable of meeting the Applicant's health-care and disability support and other needs, and provide opportunities for social and community participation. I consider the sub-rule 18(1)(a)(iii) and (e) factors neutral in this case.
33. I do not understand the CEO to contest the proposed SDA location.
34. For the reasons set out above I am satisfied that Warrnambool and South West is the SDA location that is appropriate for the Applicant.
35. I now turn to consider what SDA Building Type is appropriate for the Applicant.
36. Rule 5 of the SDA Rules defines the term "SDA building type" to mean a type of building set out in Schedule 1 of those Rules. Schedule 1 contains a table of building types that are SDA building types and sets out the 'features' of those building types together with Building Code of Australia Classification for each building type. Four building types are specified in the schedule. For present purposes it is only necessary to consider items 2 and 3 in the table:

The features of a villa, duplex or townhouse are as follows:

(a) it has 3 or less residents;

(b) it is a semi-attached property within a single land title or strata titled area;

(c) it is separated from other villas, duplexes or townhouses by a fire resistant wall (not required for existing stock);

(d) it has a separate and reasonably accessible entry;

(e) the residents are not able to internally travel between dwellings (restricted internal access between dwellings my exist for support staff only);

(f) ii may be an ancillary dwelling that is located on the same parcel of land as another dwelling (e.g. a fully self-contained granny flat).

The features of a house are as follows:

(a) it is a low-rise dwelling with gardens or a courtyard;

(b) it is located on a clearly separate land area (separated by, for example, a fence, hedge or other form of delineation);

(c) it has no shared wall, roof, entry area, driveway, carpark or outdoor area with any other dwelling other than an ancillary villa, townhouse or duplex that has no more than one resident;

(d) the parcel of land on which the house is located is proportional to the number of residents and is consistent with similar properties in the neighbourhood in which the house is located;

(c) the parcel of land on which the house is located has no more than 2 ancillary villas, duplexes or town houses.

1. Apart from the 'features' of the building type, the contest between the parties arises not from the SDA Rules, but rather from the Agency's pricing arrangements for SDA,[40] (the SDA pricing policy) which is operational policy that the Tribunal ought to apply unless it would lead to a result inconsistent with or contrary to the Act and rules.
2. It is essential to grasp two aspects of the SDA pricing policy for present purposes.
3. First, it makes provision for additional payment to a SDA provider for 'an additional room' for staff 'on-site overnight assistance' separately from the base price limit payable to the provider in respect of the participant.[41] That is, this provision is additional to the building type and design categories contained in the SDA Rules, which are referable to the participant only. Relevantly for present purposes this means that reference to the number of bedrooms in a dwelling in the SDA rules is exclusive of the accommodation that is to be available for staff on-site overnight assistance.
4. Second, the pricing policy is designed on the premise that the building type 'villa, duplex, townhouse' may have between 1 and 3 residents and that a 'house' will have 2 or more residents. The SDA Rules do not prescribe the features of a 'house' by reference to the number of residents, whereas this is a prescribed feature of a 'villa, duplex, and townhouse' building type. The design premise of the pricing policy is inconsistent with the SDA Rules to this extent.
5. Beyond this, it is to be observed that the SDA pricing policy is complex and multivariate. For present purposes it is to be observed that it is not susceptible to ready comparisons of the differential costs of the building types in contest. On the state of the evidence, it cannot even be said with confidence that the cost of a house is more than the cost of a villa, duplex, or town house. That is implicit in the CEO's submission that it is open to the Applicant to negotiate to with a SDA provider to obtain a house utilising funding approved for a villa, duplex or townhouse.
6. The Applicant asks the Tribunal to determine that the building type that is appropriate for him is a house for essentially the following reasons:
   • - He wants the dwelling to have a 'third' room which he can use as a sensory room, which, as I understand it, he believes is more likely to be available in a larger dwelling,
   • - He does not want to share common property with others in a communal living environment, which is likely to be the case in a villa, duplex or townhouse having regard to the SDA feature descriptions for those dwellings,
   • - He does not want to share party walls or the ceiling with any other dwelling, which is likely to be the case in a villa, duplex or townhouse having regard to the SDA feature descriptions for those dwellings,
   • - He does not want to be overlooked as may be the case in a villa, duplex or town house having regard to the SDA feature descriptions for those dwellings.
   • - He wants a courtyard, which is not a feature of the villa, duplex, or town house building type.
7. There is substantial evidence of the Applicant having a history of being verbally abusive and aggressive towards others. He is presently prone to episodes of emotional and behavioural dysregulation and is acutely suspicious about other people, including family members. He is rigid and socially isolative.
8. The CEO points to some opinion evidence to the effect that the Applicant would benefit from opportunities for social interaction with neighbours to reduce his social isolation. That author also records being told by the Applicant's parents that this would be a desirable feature of independent living for the Applicant.[42]
9. While it may be accepted that the Applicant's quality of life will improve if he is able to interact with others outside his immediate family, the evidence is to the effect that this will take time and patience. I am satisfied that at this stage situating him in an environment where he comes into frequent incidental contact with neighbours would create an unreasonable risk of triggering his suspicious behaviour and dysregulation as well as exposing his neighbours to antisocial behaviour. On a reasonably foreseeable basis that may put his SDA occupancy at risk. For these reasons I am satisfied that the appropriate SDA building type for the Applicant is a house.
10. I now turn to consider what SDA Design Category is appropriate for the Applicant. Rule 5 of the SDA Rules defines the term "SDA design category" to mean a design category set out in Schedule 2 of those Rules. Schedule 2 contains a table which specifies 5 design categories and their features:

Housing without specialist design features but with a location or other features that cater for the needs of people with disability and assist with the delivery of support services.

Housing that has been designed to improve 'liveability' by incorporating a reasonable level of physical access and enhanced provision for people with sensory, intellectual or cognitive impairment.

Housing that has been designed to incorporate a high level of physical access provision for people with significant physical impairment.

Housing that has been designed to incorporate a high level of physical access provision and be very resilient, while reducing the likelihood of reactive maintenance and reducing the risk to residents and the community.

Housing that has been designed to incorporate a high level of physical access provision for people with significant physical impairment and requiring very high levels of support.

1. The Applicant asks the Tribunal to determine that the SDA design category that is appropriate to him is 'robust' design. That is essentially because the SDA Design Standards[43] provide that a 'breakout room" may be included in the design of a robust dwelling.[44] A "break out room" is described in Clause 18 the SDA Design Standards as follows:[45]

Design Requirement > > If a breakout room is provided, it shall be a separate room designed to respond to the individual disability-related needs of the participant. > > It is not a study or living/dining area but is intended to be dedicated and used to enhance learning, exploration or positively impact mood. > > This room would, therefore, be expected to make use of activities, equipment, sound and lighting in ways that are appropriate to the current residents > > Note: a breakout room is not a seclusion room > > Rationale > > Provision of a breakout room is not mandatory but may be provided for some participants with specific requirements.

2. Secondarily, it is contended that a robust design is appropriate for the Applicant given his history of causing damage to property during episodes of emotional and behavioural regulation.
3. As already stated, the CEO contends that the appropriate SDA design category for the Applicant is 'improved liveability'.
4. Squarely considered, the Applicant's case in relation to the SDA design category is directed at obtaining approval for a sensory room within his SDA dwelling. The breakout room in the robust design category is a means of achieving this. His case is not in any authentic way based on a contention that this category is necessary either because he requires a dwelling with a high level of physical access or one that is designed and constructed with materials that are resistant to property damage and which are as safe as possible for residents and others during episodes of such damage.
5. In a report dated 14 October 2021, Ms J Shepherd, Occupational Therapist, does record from interviews conducted with the Applicant's parents at about that time that the Applicant engages in 'physical aggression against objects', 'multiple times a day', which includes 'slamming doors', 'throwing objects', and 'kicking walls and furniture'. She also records the Applicant's parents reporting to her that the Applicant had broken a window in their home on 3 occasions in the past.[46] Ms Shepherd was not called as a witness, but Mr and Mrs Trapezanidis both gave oral evidence, and there are 3 Carer Impact Statements from them in evidence which post-date Ms Shepherd's report. There is extensive reference in this evidence to the Applicant's emotional and behavioural dysregulation but not to him causing property damage persistently or at all.
6. In a report dated 2 April 2022, prepared by Ms D Brown, Occupational Therapist, to support the Applicant's initial request for SDA support, it is reported:[47]

...Dr Bounds reported that Brandon has no history of sustaining damage to property. > > George and Lisa report that Brandon exhibited behaviours of concern many years ago when is diagnosis of schizophrenia was new, and his management was not stabilised. George and Lisa report that Brandon has not performed behaviours of concern over the past 3 years and has not damaged property at any time in the past.

7. Ms Brown's assessment was that 'improved liveability' is the appropriate SDA design category for the Applicant.
8. The Tribunal must determine the SDA design category in accordance with Rule 17 of the SDA rules and the prescribed design categories contained in Schedule 2. This involves mandatory consideration of the specific needs of the Applicant having regard to the design features specified in each category.
9. The "improved liveability" category has as one of its features "enhanced provision for people with sensory, intellectual or cognitive impairment". I am satisfied that it is this design category that will best meet the specific needs of the Applicant given his impairment profile and related needs. The Applicant does not require a high level of physical access to an SDA dwelling, and he does not require a dwelling constructed on the assumption that he will cause substantial property damage.
10. For the foregoing reasons I conclude that funding for SDA support in the 'House' Building Type and 'Improved Liveability' Design Category for single occupancy and with a minimum of 2 bedrooms (one to be used as a sensory room) is to be approved for inclusion in the Applicant's SoPS. This support is to replace the existing approval for SDA support.

1. The Applicant requests approval of funding for disability support worker assistance with activities of daily living and for social and community participation, which would allow for the following:
   • - 6 hours of 1:1 support each week day;
   • - 5 hours of 1:1 support Saturdays;
   • - 4 hours of 1:1 support Sundays.
2. As I have noted above, the CEO has already approved Supported Independent Living (SIL) for the Applicant which incorporates disability supporter worker assistance equivalent to this, which has not been utilised because the Applicant is yet to move to independent living. There is also existing approval of funding for Assistance with Social Participation for 30hours per week, which has not been utilised. I understand the request for one-to-one support worker assistance to be premised on replacing this latter support, and required at least until the Applicant is able to benefit from his SIL funding once SDA becomes available to him.
3. There is therefore no controversy between the parties as a matter of general principle that this type of support and its quantum is reasonable and necessary. What is in issue is the proposed provider of this support, and the perceived delay in the move towards an independent living arrangement for the Applicant based on the provision of formal supports to him.
4. When she filed her SFIC on 15 November 2024, the CEO apprehended that the proposal for this requested support involved both the Applicant's parents and his sister Peyton being paid to provide this support. The evidence given at the hearing by Mr and Mrs Trapezanidis and Ms Peyton Trapezanidis was not to this effect. What they propose is that Ms Peyton Trapezanidis provide this support on a paid basis to support a transition to the Applicant's acceptance of paid support workers who would then undertake this role. They argue with the support of Dr Bounds (Clinical Psychologist), Ms Lorimer (Occupational Therapist), and Ms Tunnicliffe (Support Coordinator) that this is necessary because the Applicant, on a behaviourally entrenched basis, refuses to engage with anyone outside of his immediate family, and has a good relationship with his sister which, over time, will enable her to expose him to other people and environments as part of a graduated transfer of his support to formal supports.
5. Ms Peyton Trapezanidis informed the Tribunal that, while she had trained for another profession and was currently working in that profession, she had also more recently obtained a basic qualification in disability support work. It was her intention to give up her other job and work with the Applicant on a full-time basis to facilitate his transition to acceptance of formal supports.
6. I understood that by the close of evidence this clarification of the delivery model for this requested support went some way to assuage the CEO's concerns. However, it remained her submission that this support, if approved, should be subject to a clear time-limited transition to formal supports.
7. The CEO's reservations about the approval of this requested support are founded on the proposition that its delivery model would be likely to cause harm to the Applicant and his family. It is submitted on this basis that the funding of this requested support would be contrary to the Rule 5.1(a) of the Supports for Participants Rules which provides that a support will not be funded if it is likely to cause harm to a participant or pose a risk of harm to others.
8. In this regard reference is made to the Agency's relevant Operational Guidelines,[48] which provide, relevantly:

11.1 Does the NDIA fund family members to provide supports? > > Funding a family member to provide supports to a participant can be detrimental to family relationships. > > For example, the consequences of funding a family member to provide supports may include unintentionally creating an environment where a participant's wishes in relation to their care arrangements or the delivery of their supports is diminished, or there is no or limited respite for the family worker taking on the role of support worker. > > Generally, the NDIA will only fund family members to provide supports in exceptional circumstances. For example, when:

• There is a risk of harm or neglect to the participant;
• There are religious or cultural reasons for funding a family member to provide supports; or
• The participant has strong personal views, for example in relation to their privacy or dignity.

The NDIA will consider the circumstances of each case, and wishes expressed by the participant and also take into account what is reasonable to expect others to provide. > > The NDIA will not fund a family member to provide personal care or community access supports unless all other options to identify a suitable provider of supports have been exhausted. > > ...

1. The Applicant's primary contention in relation to this issue is that it is not a matter that arises for consideration under s 34(1) or 33(2) because those provisions are concerned with the approval of "supports", not the "providers" of those supports (the support being one-to-one assistance). In other words, it is submitted that the Tribunal does not have jurisdiction to determine who will provide this requested support, its jurisdiction is limited to determining if this support is reasonable and necessary. The Applicant accepts that the CEO could determine the provider of supports if the approval of the support specified that it was to be Agency managed pursuant to s 33(2)(d) but submits that plan management is not in issue in this review.
2. The Applicant also submits that a construction of s 34(1) and 33(2) as permitting the specification of the support provider would fetter the CEO's discretion under s 46 of the Act in relation to the acquittal of NDIS amounts. Section 46 provides, relevantly:

46 Acquittal of NDIS amounts > > Requirement to spend money only on NDIS supports and in accordance with plan > > (1) A participant who receives an NDIS amount, or a person who receives an NDIS amount on behalf of a participant:

(a) may spend the money only on NDIS supports for the participant; and

(b) must spend the money in accordance with the participant's plan (subject to paragraph (a)).

...

1. The CEO contests this analysis. She contends that her power pursuant to s 33(3) to specify supports in a plan, combined with the power under s 34(1) to determine what supports are reasonable and necessary for a participant, enable her to determine who will provide a particular approved support without reliance upon the plan management provisions of the Act. In this respect, s 33(3) provides:

How supports may be specified in plan > > (3) The supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise.

2. I preface consideration of this issue by noting the beneficial purposes of the Act. The policy of the Act places major emphasis on participant choice and control in the selection of their supports. That value must be recognised and given weight. However, it is not the only relevant value that requires consideration. Co-extensive with that value is an objective of protecting and preventing people with disability from experiencing harm arising from poor quality or unsafe supports.[49] Application of the Act's value framework thus requires a nuanced approach.
3. Upon consideration, I am satisfied that CEO, and this Tribunal on independent review, has power to specify that a support is or is not provided in a specified way, which includes whether a family member is permitted or prohibited from providing the support. That is because:
   • - s 34(1) provides that the CEO must be satisfied of each of the requirements of that section as a condition precedent to the approval of a support for inclusion in a SoPS. Among other things, this includes obtaining satisfaction that the support will be effective and beneficial for the participant (paragraph 34(1)(d)) and that it takes account of what it is reasonable to expect family members to provide (paragraph 34(1)(e)). This analysis properly involves consideration of the way a support is proposed to be provided, and well as the type of support,
   • - Rule 5.1(a) also informs the analysis of each of the s 34(1) requirements. It places a general prohibition on the approval of funding for a support that is likely to cause harm to a participant or pose a risk to others. The Rule is plainly intended to operate 'upstream' of s 46. It is concerned, relevantly, with the funding of supports, not the acquittal of approved funding in accordance with an approval,
   • - s 33(3) permits specificity in the description of a support that is to be approved for inclusion in a participant's SoPS. Such a support may be prescribed by reference to its purpose or otherwise. In my opinion the breadth of the power conferred by s 33(3) would enable the CEO to specify who may or may not provide the support, including upon what conditions. Whether the granulated exercise of that power is appropriate having regard to the statutory policy emphasis on participant choice and control is a matter for consideration in the specific circumstances of the case,
   • - The objects of the Act and its operative provisions refer to the concept of 'harm' to a participant, but the Act does not define that term. Consistent with the beneficial purposes of the Act, it should be given a broad meaning. The Agency's Operational Guidelines conceptualise forms of harm to a participant that may arise from a family member being engaged on a formal basis to provide them with supports. Those potential harms include: the materialist de-naturing of this otherwise freely given relationship (my words) in a statutory context that calls for family relationships to be recognised and respected,[50] the potential for family members to control participant choices and outcomes, rather than promote their independence, and family member exhaustion (posing a risk of harm in terms of quality of support to the participant, as well as to the wellbeing of the family member). Those apprehended harms are far from fanciful in my opinion. The approval of funding for supports is a primary way in which the CEO can acquit her responsibility to avoid, or at least manage, this form of harm.
   • - I cannot see, as the Applicant submits, that the 'choice of provider' issue is necessarily or essentially downstream from s 33(2) and governed by s 46. Rather, s 46 would only have potency in relation to this issue if there was a sufficient degree of specification of the support pursuant to paragraph 33(2)(b). That is because the obligation expressed is to acquit funding in accordance with the approved SoPS. If the approved SoPS simply referred to the type of support, the issue of its provider would not arise for consideration.
4. Having regard to these conclusions, consideration of this requested is intertwined with the question of whether Ms Peyton Trapezanidis ought to be specified as its provider, and if so on what conditions, if any.
5. With respect to the paragraph 34(1)(a) requirement, within the premises of the proposed delivery model, I am satisfied that this support would assist the Applicant to pursue his first short-term goal, which is: "For my family to receive supports to enable them to continue to care for me". Under the sub-heading "How I will achieve this goal" is stated: "I will begin to engage with formal supports to be more independent and less reliant on my family". I am also satisfied that this support would assist the Applicant to achieve his medium- or long-term goal of "... increasing my social participation", which is proposed to be achieved by ".., engag[ing] with support staff to begin to access the community". Additionally, I am satisfied that in one way or another the provision of support to undertake the tasks and actions involved in the activities of daily living and in social and community participation will assist the Applicant to meet all his stated goals. Nevertheless, satisfaction of this requirement is obtained on the understanding that Ms Peyton Trapezandis involvement in the provision of this support on a paid basis will be time limited and part of a transition to formal supports.
6. With respect to the paragraph 34(1)(b) requirement, the provision of support worker assistance to undertake the tasks and actions involved in the activities and daily living and in social and community participation will facilitate the Applicant's social and economic participation by exposing him to people and environments outside his immediate family and current home. The evidence is to the effect that this will take time and patience. Again, satisfaction of this requirement is obtained on the understanding that Ms Peyton Trapezandis' involvement in the provision of this support on a paid basis will be time limited and part of a transition to formal supports.
7. With respect to the paragraph 34(1)(c) requirement, I am satisfied that the provision of support worker assistance to the Applicant in relation to the activities of daily living and social and community participation constitutes value for money having regard to his substantially reduced functional capacity for communication, learning, social interaction, self-care and self-management. It is directed at increasing his functional capacities in these life activity areas, and therefore is likely to be of long-term benefit to him: Rule 3.1(b). The funding for this support will be calculated in accordance with the Agency's price controls policy. Having regard to that there is no equivalent support that would achieve the outcomes targeted at a lesser cost (Rule 3.1(a)) and there is no concern that these costs are not comparable to equivalent supports provided in the Applicant's locality: Rule 3.1(e). I will address the concerns associated with Ms Peyton Trapezanidis providing this support in relation to the paragraph 34(1)(e) requirement following. For present purposes, against the backdrop of the Applicant's entrenched refusal to accept formal support services, I am satisfied that a transitional arrangement which involves Ms Trapezanidis progressively exposing the Applicant to other people and environments to facilitate his ultimate acceptance of formal supports constitutes value for money.
8. With respect to the paragraph 34(1)(d) requirement, I am satisfied as a matter of general principle that the provision of disability support worker assistance to the Applicant to build his functional capacity in the activities of daily living and for social and community participation will be effective and beneficial for him. Ms Peyton Trapezanidis has undertaken formal training in disability support work. She therefore presents with the skill set to be expected of a person providing such support. As I have said above, against the backdrop of the Applicant's entrenched refusal to accept formal support services, I am satisfied that a transitional arrangement which involves Ms Trapezanidis progressively exposing the Applicant to other people and environments to facilitate his ultimate acceptance of formal supports will be effective and beneficial for him. I address the concerns associated with this service delivery model in my consideration of the paragraph 34(1)(e) requirement following.
9. With respect to the paragraph 34(1)(e) requirement, several observations are appropriate.[51] First, the Applicant is an adult. It is not reasonable to expect family members to be involved in the daily support of an adult in the activities of daily living or to provide support for social and community participation, other than in relation to what would typically occur between adults in a family context. The circumstances of the support provided to the Applicant by his family are very far from typical adult family relationships. I accept that these circumstances are so onerous as to constitute a serious risk of harm to Mr and Mrs Trapezanidis.
10. Second, generally, it is not reasonable to expect family members to become involved in the support of a participant in the role of a paid support worker. This is to convert an informal (or freely given) relationship into a formal one. While these roles will be co-extensive and are not necessarily mutually exclusive, as I have said above, the payment of family members to perform work in relation to a participant brings a materialist dimension to their relationship. It is no longer freely given, at least insofar as it will be a partially paid relationship. It is one thing to know that a family member is present in a participant's life because of a bond of affection, it is another to know they are present because they are paid to be. The perception of the relationship by the participant and the paid family member inevitably changes as a result, and it is subject to being viewed differently by others.
11. The policy of the Act requires decision makers to recognise and respect the role of family members in the lives of participants. That does not envisage the conversion of these freely given relationships into paid ones. It is a policy that recognises that these relationships will typically be the most meaningful, sustaining and enduring in a participant's life. They exist on a much higher plane than formal supports that will come and go over the participant's lifetime. An intact, involved, and vigilant family presence that is external to formal supports will be for many participants the greatest safeguard of their ongoing well-being and the source of their deepest happiness. The policy of the Act is to provide a participant with the supports that will relieve family members from onerous care responsibilities so that family relationships will remain intact, and all family members are able to enjoy a closer to typical family life.
12. Third, it is not reasonable to expect family members to be involved on a paid basis in the day-to-day support of a participant because this has the potential to inhibit a participant from developing their independence. The development of independence is a fundamental statutory purpose of providing support to participants.[52] Families develop patterns of relationship that are informal, affective, and which, for adults, may be intrusive on their privacy. While such relationships may be sustaining for a participant, they also have the potential to be limiting of their independence and privacy. A formal support is instrumental, not affective, in nature. Its function is to build independence including by challenging and empowering a participant to make choices for themselves and take reasonable risks. That may conflict with the participant's familial relations in which family members may drive goals and choices in well-intentioned, but life-limiting ways.
13. Fourth, paying a family member to provide support in circumstances where that person is already informally involved in providing support has significant potential to result in their exhaustion through extended exposure to caring responsibilities in both roles. That constitutes a potential risk of harm to the participant in the form of poor-quality care. It is also likely to risk the quality of the participant's informal relationship with the family member. Additionally, it puts at risk the well-being of the family member. I note in this respect, that the service delivery model proposed here involves Ms Peyton Trapezanidis working up to 7 days a week. It is no answer to this concern that she is already exposed to providing this level of support to the Applicant on a shared basis with her parents. The object of providing formal support is to overcome such a situation, not to entrench it.
14. For the foregoing reasons, balancing the competing considerations, I am satisfied that this request support should be approved but only on the basis that it is a short-term transitional arrangement to non-family provided formal supports within the SoPS period; that is, full transition to formal supports is to be achieved within 12 months. It should also be approved subject to Ms Peyton Trapezanidis being limited to working not more than 5 days a week and 8 hours a day, providing formal support to the Applicant.
15. This support is to replace the Applicant's existing approval of funding for Assistance with Social Participation.

1. The Applicant requests approval of funding for 30 hours of psychology support to be included in his SoPS. This funding would enable the Applicant to obtain up to 26 1 hour 'telehealth' consultations per annum provided to his parents and possibly others by Dr J Bounds, Clinical Psychologist, and additional for hours of report writing and multidisciplinary coordination.[53] Dr Bounds describes the service delivery model for this support in the following way:

Psychological support is needed to ... help train and guide Lisa, George and Peyton in regard to how best support Brandon. This specialised support and guidance needs to take amount of - his past history of trauma - his autism spectrum disorder and - his schizophrenia. ... Part of this training and guidance will involve helping them learn more about appropriate management skills to support him.

2. This proposed model of service delivery is further explained in a report prepared by Dr Bounds, dated 25 September 2024, as follows:[54]

The need for psychological support and behavioural support and how this can best be given to Brandon. > > This is the key question that needs to be answered for the NDIS and it can only be answered by first understanding some history and context. > > Brandon has exhibited very challenging behaviours all his life > > [the Applicant's developmental history is then set out, along with a history of reported unsuccessful and punitive interventions by various professionals] > > It is this background experience of early punitive or unhelpful treatment and later lack of treatment and support, that has led to Brandon's parents being wary of professionals. > > His parents are especially wary of behavioural specialists who may not be well grounded in understanding autism. It is the experience with supporting individuals who have autism and the particular model of support that the current psychologist believes in that is the reason Brandon's parents [on behalf of Brandon] have sought the current psychologist's support rather than others who are an 'unknown' to them. > > The other key barrier in providing support to Brandon is the difficulty of face-to-face involvement. The reason for this is that Brandon has paranoid schizophrenia. He is extremely fearful of people he does not know. However, his parents are good mediators of what can be supportive for Brandon, so this gives a potential way forward. The following psychological service is proposed and outlined fully below. > > ... > > Psychology will be delivered to Brandon but through a collaborative model. Direct delivery to Brandon is not possible at this stage given his paranoia and fear of unknown adults. His anxiety is also constantly elevated and adds to the difficulty. However, as is outlined below, a collaborative model can work well, and this can then mean Brandon does not miss out on important support. > > How the collaborative model works > > Dr Janine Bounds delivered her PhD using a collaborative change model based on the TEACCH method [pioneered by Eric Schopler at the University of California in the 1970's] for students with autism in schools as a collaborative model involving all individuals involved in the care and support of the person. The model is also a whole of life program that can be applied to adults. A very important element of the TEACCH program is the affirmation of parents as equal partners throughout the delivery of what is implemented. Parents are seen as a resource and as an important source of expertise, and that they can help in implementation. A range of resources can be sourced to help in working on a goal. These can be physical resources or resources that involve additional people. However, all additional people work within the collaborative model. This is the model on which Dr Janine Bounds works in all her private practice. > > An example of how one could implement a thorough supportive plan for Brandon is outlined below in a step-by-step plan.

3. Gather as much information as one can about the day-to-day functioning of Brandon from his parents and other professionals involved in his care.
   • - This will involve lots of talking about routines and difficulties
   • - It will also involve making sure one has gathered all previous assessments that have been completed to gather as much information as possible from them
   • - Together it will be worked out if more information is still needed. Is there sufficient information about Brandon's understanding of language, his expressive ability, his sensory differences, his motor skills etc? If there is a certain behaviour that is problematic, what are the factors leading to the problem? Work out possible ways that this might be able to be understood better as necessary.
4. The way Dr Bounds works is to work out one first thing to work on together [ i.e. one thing that is something in Brandon's everyday life that needs to be worked on] and devise a plan about how to work on it. All the ways of working on this targeted goal will be worked out together. All the means of supporting working on this goal will be worked out together as well as the resources needed. For example, if Brandon's parents were helping to implement a goal it might mean a) making visuals or any supportive materials needed together etc. to help implement the targeted goal. Then b) there would be practice regarding how what is to be done will be implemented. Then c) Brandon's parents will then implement it. After a period of trial, how it went would be evaluated together.

Another way meeting a targeted goal might work would be if it was decided to utilise another resource [for example, Brandon's sister could be used as a resource, as at present Brandon accepts well her interactions with him]. > > ... > > For the meeting of another goal, another resource person might need to be utilised, as was decided collaboratively. The same process could be used.

5. After implementation of a targeted goal and evaluation, a targeted goal will be revised as necessary if something didn't work. Again, work on what to do together.
6. When the first goal is working, start working on the second goal to work on together. Go through the cycle again.

The sorts of supports that could be worked on and implemented could cover a wide range of difficulties and skill sets. They could include:

• - Ways to improve organisational supports for everyday living skills
• - Simple communication supports
• - Non-verbal ways of indicating emotions using technology or other concrete supports
• - Means of managing some sensory difficulties better and
• - Specific behavioural difficulties.

It is important to note again that the model is collaborative, realistic and directed to working on goals deemed by his parents [who are currently living with Brandon] as important. As well, there will be a constant means of evaluation and review.

1. In an addendum to her report dated 31 January 2024, Ms Lorimer, Occupational Therapist, also includes the following opinion of Dr Bounds, provided in response to the CEO's proposition that her psychological services were in fact being provided to Mr and Mrs Trapezanidis who should seek to fund this support under Medicare Mental Health Care Plan:

The respondent's position demonstrates a fundamental misunderstanding of Brandon's disability needs. As Brandon's disability prevents him from receiving direct support, all psychological (as well as other allied health) interventions have to go through Brandon's informal supports. All allied health professionals will have to undertake a strategy of providing support by training Brandon's informal supports, develop an understanding of what Brandon is experiencing either by his comments to informal supports or by behaviour observed by his informal supports. Unfortunately, this is the only strategy available to professionals to evaluate Brandon needs, create a plan, and provide details to his supports for implementing which plan...[55]

2. The CEO objected to the approval of the psychology for inclusion in the Applicant's SoPS on the following grounds:[56]
   • - It was, in reality, psychological support being provided to Mr and Mrs Trapezanidis, who should obtain funding for this assistance to them under a Mental Health Care Plan available under Medicare,
   • - On the same assumption, psychological support for family members is not a "disability related health support" within the meaning of Item 16 of Schedule 1 of the NDIS Supports Transitional Rules, having regard to paragraphs (c) and (d). The model of psychological support proposed is therefore not a NDIS Support capable of being included in the Applicant's SoPS,
   • - On the same assumption, psychological support for family members is not a therapeutic support within the meaning of Item 34 of Schedule 1 of the NDIS Supports Transitional Rules which require that the support be provided to the participant directly. The model of psychological support proposed is therefore not a NDIS Support capable of being included in the Applicant's SoPS,
   • - The support is duplicative of a support already approved in the Applicant's SoPS, which is 20 hours of specialist behaviour intervention support, and is therefore not value for money having regard to paragraph 34(1)(c) and Rule 5.1(c) of the Supports for Participants Rules,
   • - The proposed model of psychological support is not consistent with the goals contained in the Applicant's Statement of Goals and Aspirations, which includes the following goals: "begin to engage with formal supports to be more independent and less reliant on my family" and to "... work with my allied health supports to have positive relationships". It is submitted that, contrary to these goals, the proposed model of psychological support perpetuates and entrenches the Applicant's existing behavioural patterns of avoiding professional or non-family supports and therefore cannot satisfy the paragraph 34(1)(a) requirement.
3. To the extent that she accepted that the proposed model of psychological support did involve a benefit to the Applicant which could only be provided to him indirectly through his parents at this stage, the CEO contended that it should only be permitted in the context of a transition to the direct delivery of psychology support to the Applicant.
4. I note that it had been my impression that the issues in dispute between the parties in relation to this support had narrowed, if not resolved, by the end of the hearing. However, as already noted, on 31 January 2025 I was informed by the Applicant's legal representatives that nothing had been resolved. It is therefore necessary for me to approach consideration of this requested support on the basis that it remains fully contested.
5. I make the following preliminary findings of fact in relation to this requested support based on Dr Bound's documentary and oral evidence:
   • - the requested support is a support in relation to which the Applicant is the intended primary beneficiary. It is directed at the development of strategies that will assist in the control of his emotional and behavioural regulation and develop his functional capacity for communication, learning, social interaction, self-care and self-management, according to priorities determined in collaboration with his parents. While his parents and other family members will benefit indirectly from the Applicant's development of greater functional capacity in these areas, the proposed support does not constitute the provision of psychological support to them as distinct from the Applicant,
   • - Dr Bounds has provided psychological support to Mr and Mrs Trapezanidis directly in relation to their own needs for such support in the past and may do so in the future, but this was in the past, and would be in the future, provided separately from what is being proposed for the Applicant.
6. Having regard to these findings, I am satisfied that the proposed model of support falls within the scope of Item 34 of Schedule 1 of the NDIS Supports Transitional Rules, and that Item 16 of Schedule 1 of those Rules is not engaged. It is thus a model of psychological support that is capable of being approved as a NDIS therapeutic Support.
7. I now turn to consider the remaining requirements of s 34(1).
8. With respect to the paragraph 34(1)(a) requirement, I note that the Applicant's second medium- or long-term goal stated in his Statement of Goals and aspirations is: "[s]upport to reduce stress and anxiety, mood regulation and manage anger frustration (sic)". Under this goal are the following sub-headings and commentary:

How I will achieve this goal > > I will work towards putting positive strategies in place to build my ability to manage my emotions, mood, stress, and anxiety. > > How I will be supported > > My family will assist me. My specialist behaviour support will provide myself and people in my life to [sic] strategies to manage my emotions, mood, stress and anxiety. My support workers will assist me to put strategies in place. My Allied health supports will assist me to improve my ability to communicate my wants and needs to others.

Having regard to this goal, and how it is proposed it will be achieved, I am satisfied that the proposed psychological support will assist the Applicant to pursue it.

1. With respect to the paragraph 34(1)(b) requirement, I am satisfied that this proposed support is directed at the Applicant developing his capacity for emotional and behavioural regulation, and skills to otherwise build his functional capacity for communication, learning, social interaction, self-care and self-management. It is thus a support that will assist the participant to undertake activities to facilitate his social and economic participation. I note on the evidence before me that this is likely to require time and patience.
2. With respect to the paragraph 34(1)(c) requirement, I am satisfied that the proposed support is directed at building the Applicant's functional capacity to undertake tasks and actions of daily living where he currently experiences extreme life-limiting functional impairment. It constitutes value for money on this general basis for the purposes of paragraph 34(1)(c) and Rule 3.1 (b) and (f). More specifically, I note that the hours of support sought and the frequency of their delivery (up to 26 1-hour sessions delivered approximately fortnightly), are proportionate to the objectives of providing this support, and that funding for the support will otherwise be determined in accordance with the Agency's _NDIS Pricing Arrangements and Price Limits 2025-2026.[57]_It constitutes value for money on this basis having regard to the Act and Rule 3.1(a). I do not understand that the CEO attacks the approval of this support on these grounds.
3. Rather, the CEO's attack regarding the paragraph 34(1)(c) requirement is founded upon Rule 5.1(c). In this respect it is said that this proposed psychological support duplicates the 20 hours of specialist behaviour intervention support that has already been approved for inclusion in the Applicant's SoPS.
4. As I understand the state of the evidence in relation to this issue:
   • - Specialist behaviour intervention support is not a support that the Applicant, via his Nominee, has sought for approval in his SoPS, in part because of the Applicant's and his parents' negative experience and perception of compulsory treatment,
   • - Although approved in the Applicant's SoPS, specialist behaviour intervention support has not been utilised to date,
   • - Specialist behaviour intervention support is a necessity for inclusion in a participant's SoPS if they are subject to restrictive behaviour management strategies. The Applicant is not currently subject to any restrictive behaviour management strategy,
   • - Dr Bounds does not conceptualise the model of psychological support she proposes as 'behaviour management' of the Applicant.
5. The CEO submits that the fact that the Applicant does not choose to engage with a specialist behaviour support practitioner is not to the point in consideration of Rule 5.1(c).
6. The policy of the NDIS Act places significant emphasis on participant choice and control in the selection of their supports.[58] The words and phrases that encapsulate this value are to be understood as meaning what they say.[59] This principle, at least in so far as it is expressed in s 4, is more than aspirational.[60] It is the intention of Parliament that persons making decisions under the NDIS Act give effect to this policy as far as practicable.[61]
7. Having regard to that I do not accept the CEO's submission that the Applicant may be compelled to accept the inclusion of specialist behaviour support in his SoPS, and that this is a basis on which it can then be said that his chosen support, being this proposed psychology support is duplicative.
8. I thus conclude that this support is not duplicative and otherwise constitutes value for money.
9. For completeness, I note that neither party has asked me to vary the Applicant's SoPS to remove specialist behaviour support. Additionally, the oversight of a specialist behaviour support practitioner may come to be necessary should restrictive practices be required in the Applicant's transition from informal to formal supports, and to independent living. Even if no restrictive practices are required, my own opinion is that positive behaviour support is likely to benefit the Applicant in his transition to independent living. I would encourage him and his family to utilise this support. I will therefore not disturb that support, such that it can be drawn down on in the event it becomes appropriate to do so. If it is not drawn down on no public expenditure will accrue.
10. With respect to the paragraph 34(1)(d) requirement, I have set out at some length above Dr Bounds' evidence in relation to the social scientific basis of the "collaborative change model" and TEACCH method which is the modality for the delivery of psychological support. No specific challenge was mounted to this evidence by way of expert evidence impugning it. Rather, the challenge was mounted by way of submission in the CEO's SFIC and from the Bar Table from where it was asserted that this model would only be acceptable for a short period pending transition to direct delivery of psychological support to the Applicant. I would have been assisted by expert evidence as to the feasibility, modality and efficacy of providing direct psychological support to a person with the Applicant's impairment profile. In the absence of that evidence, I accept Dr Bounds' evidence as to its efficacy and benefit of her proposed model of delivery of psychology support to the Applicant, not limited to a transitional phase. In this respect, having regard to the Act and Rules 3.2 and 3.3, I have before me at least some evidence of refereed literature and consensus of expert opinion, and I have the lived experience of Mr and Ms Trapezanidis as to the benefit to the Applicant of this approach.
11. With respect to the paragraph 34(1)(e) requirement, I am satisfied that psychology support is not a form of support that it is reasonable to expect families, carers, informal networks and the community to provide to the Applicant. It is an allied health specialisation that requires specialist training, knowledge and skill.
12. The collaborative model proposed for the delivery of this support is specifically designed to involve family members in the design, implementation and evaluation of psychological interventions for a family member with the Applicant's impairment profile. The Applicant lives with his parents and interacts with them daily and will continue to do so for some time. It is therefore sensible and necessary that they are involved in the design, implementation and evaluation of this support. They wish to do so voluntarily. The proposed model of support does not involve any payment to them in relation to their collaborative involvement.
13. Having regard to this and to Rule 5.1(a) of the Supports for Participants Rules I cannot see any reasonable basis upon which it would be said that Mr and Ms Trapezanidis' involvement in the collaborative model of service delivery for psychological support to the Applicant is likely to cause harm to him or them by fundamentally altering the nature of their family relationship. The model of support is founded upon recognition of this family relationship.
14. For these reasons I am satisfied that funding of this proposed psychology support will take account of what it is reasonable to expect family members, carers, informal support and the community to provide to the Applicant.
15. For each of the foregoing reasons I am satisfied thatpsychology support is a reasonable and necessary support that ought to be approved for inclusion in the Applicant's SoPS.
16. There is a degree of discrepancy in Dr Bounds' evidence as to the quantum of psychology support that ought to be approved (whether 20 or 26 base hours, and how many hours for report writing). Upon consideration I will approve the original request, which is 30 hours. That will allow for up to 26 1-hour (at least fortnightly) sessions per year, and additional time for report writing to support the plan reassessment process, and for interdisciplinary collaboration with the Applicant's other support providers.

1. The Applicant requests approval of 78 hours per year of occupational therapy support to be included in his SoPS. 40 hours of occupational therapy support is already approved (identified as "other professional" in the Improved Daily Living Capacity Building category). Having regard to that, what is in issue is 38 hours per year which the Applicant contends is reasonable and necessary additional support.
2. The proposed utilisation of the existing and requested occupational therapy support is set out in a report of Ms C Lorimer, Occupational Therapist, dated 14 January 2024 as follows:[62]

Brandon requires occupational therapy for assessment and trial of assistive technology (particularly home automation and assistance animal as mentioned above). Brandon requires his supports to receive training/guidance on interventions grading activities to assist Brandon to build capacity in areas of self-care (e.g. grooming activities, dressing), domestic (e.g. cleaning, meal preparation), and long-term graded program to promote community access. > > Due to the limitations of direct access, Brandon's supports require extra time to communicate their observations/concerns and to implement strategies. > > The undersigned recommends weekly appointments with Brandon's informal supports (George, Lisa and/or Peyton) to track Brandon's presentation and develop intervention strategies (48 hours). > > The undersigned recommends case conferencing every second month with all stakeholders, due to the complexity and volatility of Brandon's presentation (six (6) hours). > > Brandon will require report writing in the form of progress report every six (6) months (one (1) hour) a functional capacity assessment with outcome measures particularly after SDA and/or specialist AT have been introduced (10 hours) and provision of reports and research for assistive technology (13 hours) > > = 78 hours

3. Ms Lorimer provides further rationale for this requested support in an addendum to that report dated 31 January 2024 as follows:[63]

The complexity of Brandon's dual diagnosis and the barrier to direct work with Brandon requires provision of greater communication between the allied health professional and Brandon's supports. Brandon's additional functional decline associated with extremely limited capacity building involvement, occupational deprivation, and untreated medical results in further decline in his functional capacity. Brandon requires a robust funding package for allied health to provide training and guidance around his needs, to develop and implement intervention plans, to liaise with other stakeholders.

4. In oral evidence it emerged that a primary justification for the additional occupational therapy sought was to support Ms Lorimer's role as the 'architect' and 'driver' of the Applicants' transition to independent living, which included her functioning in the capacity multidisciplinary coordinator of his allied health supports.
5. As I have noted above, at the hearing outset the CEO accepted that an additional 10 hours per annum (to 50hours) Occupational Therapy support is reasonable and necessary but submitted that funding for support more than 50hours is not reasonable and necessary. On the material before me it is not clear why the CEO considers an additional 10 hours reasonable and necessary. I note that the Applicant's participant plan does not contain any specific indication of what is expected to be achieved because of the inclusion of this support, other than that it appears in the broad category of Improved Daily Living Capacity Building Support.
6. The CEO further objects to this proposed support on the basis that it does not involve occupational therapy support being provided to the Applicant directly. In this respect, the service delivery model involves Ms Lorimer consulting with the Applicant's parents via regular telehealth (video) appointments. If I understood the evidence correctly, she has never met or assessed the Applicant in person or attended and directly assessed his living environment. The CEO submits that if this model of service delivery is to be supported at all, it should only be in the context of a short transition to a model of direct service delivery to the Applicant.
7. It is necessary to preface consideration of this request with the following observations:
   • - Ms Lorimer's report, dated 14 January 2024, incorporates a detailed functional capacity assessment of the Applicant, and it includes detailed recommendations as to the type of SDA she considers reasonable and necessary for him and other matters. I consider that report is still 'current',
   • - The Applicant continues to live in the home environment that pertained when Ms Lorimer conducted this functional capacity assessment. His environment has not changed. Nor do I understand the evidence to be that the Applicant's presentation has changed, other than that his deconditioning has deteriorated,
   • - SDA has yet to be secured for the Applicant,
   • - If I understood the evidence correctly, it is not proposed that the Applicant's existing home environment is modified to incorporate assistive technology or that he obtains an assistance dog while living in this environment. These would be supports that would be considered in the context of his move into SDA. Even if I have misunderstood that, funding for assistive technology of the kind Ms Lorimer refers to and an assistance animal is not included in the Applicant's current SoPS, and they are not amongst the requested supports before me for consideration even in the context where the Applicant asks me to set a reassessment date in 3 years from my decision,
   • - The Applicant's SoPS includes funding for 26 hours of Specialist (or Level 3) Support Coordination and 104 hours of Support Coordination (level 2) per annum, amounting to 2.5hours a week (but to be used as needed).
8. With respect to the paragraph 34(1)(a) requirement, it may be accepted as a matter of general principle that occupational therapy support has the potential to assist the Applicant to develop skills and strategies that will improve his functional capacity for communication, learning, social interaction, self-care and self-management, and in this respect, to pursue each of his goals. However, for the reasons I explain following, on the evidence before me I cannot see how that will occur to any greater extent with funding for an additional 38 hours of occupational therapy support to the 40 hours already funded.
9. To the extent it is said that this additional support is related to the Applicant's goal of finding suitable long term safe housing, the Applicant's Statement of Goals and Aspirations states that "[he] will engage with [his] Support Coordinator and Specialist Support Coordinator to find suitable and safe accommodation", not an occupational therapist, and that appears to me to be sensible and appropriate.
10. To the extent it is said that this relates to assessing the Applicant's functional needs in relation to SDA I consider that Ms Lorimer's report of 14 January 2024 already does this. Once SDA has been secured for the Applicant, additional assessment and recommendations regarding assistive technology for that home and an assistance animal may well be beneficial, but the evidence is to the effect that this will not occur for an approximate 18-month period which will be outside the current SoPS period for the reasons I explain following. The Applicant's need for occupational therapy support ought to be considered again in the context of a plan reassessment once SDA is secured.
11. With respect to the development and implementation of strategies in the immediate term to build the Applicant's functional capacity for self-care in his current environment and social interaction outside it via a delegated model in which his parents and sister carry out these strategies, I cannot see why 40 hours occupational therapy support is not sufficient to support this. There is a current, detailed, functional assessment of the Applicant. Consequently, what is required are task analyses, task modifications, and recommendations regarding environmental modifications. The evidence is to the effect that there is limited capacity in the Applicant's current environment to support significant changes so the strategies will need to be targeted and modest. They will take time and patience to implement. If I were to allow, simply to illustrate the point, 2 hours occupational therapy support to develop 5 task modification/analyses (10 hours), and fortnightly 1-hour meetings for review/reassessment/redesign of these strategies etc, the Applicant's existing funding for occupational therapy support would be sufficient to support this. That would still allow for 4 hours for other activities, including report writing.
12. I should make explicit that in making these observations I proceed on the basis that occupational therapy support is instrumental in character. It is to support the Applicant to improve his function in concrete, practical ways. While the provision of this support under the delegated model will and should involve Ms Lorimer providing encouragement, reassurance and empathy in her interactions with the Applicant's parents and sister, that is incidental to and not the primary outcome this support is intended to achieve. The proposed weekly telehealth meetings between Mr Lorimer and the Applicant's parents have the potential to obscure that boundary in my opinion. Occupational therapy support is not intended as an emotional support for the Applicant's parents and sister.
13. With respect to the paragraph 34(1)(b) requirement, again, as a matter of general principle, it may be accepted that occupational therapy support has the potential to assist the Applicant to improve his functional capacity for communication, learning, social interaction, self-care and self-management. In the context of several other variables this will facilitate his social and economic participation. I note on the evidence before me this is likely to require time and patience. However, for the reasons I have explained above, I do not accept that 38 additional hours of occupational therapy support is reasonable and necessary, at least currently. 40 hours is sufficient to achieve what can be achieved by way of the provision of this support during the current SoPS period.
14. With respect to the paragraph 34(1)(c) requirement, as I have said, I accept as a matter of general principle that occupational therapy support is reasonable and necessary to assist the Applicant to build his functional capacity for communication, learning, social interaction, self-care and self-management. In this respect it constitutes value for money having regard to the Applicant's substantially reduced functional capacity in each of these life activity areas. However, for the reasons I have identified, I do not consider the request for an additional 38 hours' occupational therapy support in the SoPS period that I will determine because of this review (12 months) value for money. The achievable goals for this support within that period can be pursued within the funding already approved. The future need for occupational therapy support, and its focus, is appropriately considered in the context of the reassessment of the Applicant's plan in 12 months' time, having regard to the progress that has been achieved towards his independent living then.
15. With respect to the paragraph 34(1)(d) requirement I note that occupational therapy is an accepted form of allied health support designed to improve the functional capacity of person who experiences reduced function because of impairment and disability. It is recognised as a NDIS Support in Schedule 1 of the NDIS Supports Transitional Rules. It thus may be taken to be effective and beneficial for the Applicant given his impairment and disability having regard to current good practice, including by reference to Rule 3.2(a) of the Supports for Participants Rules.
16. I do not have any concern about the proposed service delivery model for the provision of occupational therapy support to the Applicant. Intervention strategies will be designed, monitored and evaluated by Ms Lorimer and the Applicant's parents and sister will be instructed in relation to their implementation. This is not tantamount to occupational therapy support being provided to the Applicant's parents and sister as the CEO contends. Whether Ms Lorimer was able to attend the Applicant's home and interact with him directly or not, she would not be in a direct support role with him involving any extended period of daily contact. The strategies she develops to improve his function will therefore necessarily be implemented by others. The Applicant's parents and sister are the only persons present in the Applicant's environment currently. In the transition from their support to formal supports, disability support staff can be instructed to implement the strategies Ms Lorimer develops.
17. With respect to the paragraph 34(1)(e) requirement I am satisfied that the funding of this support takes account what it is reasonable to expect family members, carers, informal supports and the community to provide. Occupational therapy is an allied health specialisation that requires specialist training, knowledge and skill. It is not reasonable to expect this to be provided informally.
18. With respect to the CEO's concerns about the delegated model of care, and regarding Rule 5.1(a) of the Supports for Participants Rules, I am not concerned about the delegated model of service delivery for occupational therapy support for the reasons I have explained above. In short summary:
    • - The delegated model does not involve the provision of occupational therapy support to the Applicant's parents or sister,
    • - The applicant's parents and sister are the only persons present in the Applicant's current environment who can carry out intervention strategies designed by Ms Lorimer. Responsibility for implementation of these strategies can be transferred to disability support workers as formal supports are put in place, but the evidence is that this will take some time to achieve,
    • - Strategies to improve the Applicant's function in his present environment are likely to benefit him and his family, not harm them.
19. For the foregoing reasons I am satisfied that 40hours occupational therapy support is a reasonable and necessary support that ought to remain funded in the Applicant's SoPS. However, I am not satisfied that an additional 38 hours of such support is reasonable and necessary. I therefore decline to approve this support for inclusion in the Applicant's SoPS.

1. The Applicant requests approval for 26 hours per year of exercise physiology support to be included in his SoPS. In support of this request the Applicant relies principally on the evidence of Mr N Burns[64] and Ms L Burrows,[65] both exercise physiologists.
2. The model of exercise physiology proposed is, in effect, a delegated model, in which the exercise physiologist will design an exercise program that will be implemented with the Applicant by his sister, Ms Peyton Trapezanidis. The exercise physiologist will provide ongoing guidance, supervision and monitoring in the implementation of this exercise program. Mr Burns' proposed exercise physiology support involves weekly 30minute sessions, whereas with the same total envelope of hours, Ms Burrows proposes fortnightly sessions of 30-60minutes observed by her using telehealth technology.
3. Both physiologists analyse the Applicant's need for exercise physiology in terms of the physiological barriers that exist to him meeting his NDIS Plan Goals and Aspirations. A following extract from Mr Burns' report illustrates this:

Condition specific barrier 1: Obesity[66] > > Anxiety is a highly prevalent comorbidity in individuals with schizophrenia. People, like Brandon, with anxiety, are more likely to be obese due to decreased movement. This reduced physical activity level means that these individuals are at a substantially increased risk of chronic diseases such as diabetes, asthma, hypertension, stroke, joint pain, and arthritis. Brandon will not voluntarily have blood tests, however, his doctor is of the opinion that Brandon already has undiagnosed chronic diseases, especially diabetes. A specific exercise program is required to manage these chronic diseases whilst also improving his body composition and reducing anxiety symptoms. This will ultimately enable Branson to achieve his NDIS goal of gaining support to reduce stress and anxiety. > > Condition specific barrier 2; reduced standing and walking tolerances > > Individuals with autism spectrum disorder present with a lower exercise capacity relative to their apparently healthy adult counterparts. A decreased exercise capacity results in Brandon being unable to stand and walk for prolonged periods of time. This means that when he does walk around the house he needs to stop for frequent rest breaks as his body feels 'sore and weak'. An individualised exercise program is essential to improving Brandon's overall exercise capacity and subsequent standing and walking tolerances so he is able to stand and walk around for longer periods of time. This will ultimately enable him to achieve his NDIS goal of improving his physical and mental health. > > Condition specific barrier 3: Reduced balance > > Individuals with autism spectrum disorder have poorly developed coordination which causes decreased balance. This places Brandon at an increased falls risk. An increased risk of falling increases the risk of injury to Brandon. An injury would provide further encouragement for Brandon to continue his sedentary lifestyle, forcing him to further rely on his support network and ultimately reduce his independence. An exercise program which incorporates balance training will allow Brandon to improve his balance and support his NDIS goal of gaining support to find suitable long term housing and living independently.

4. Mr Burns' describes the proposed model of exercise physiology support as follows:

Individualisation > > A generic exercise program would not be suitable for Brandon. As a result of his condition as well as his history of sedentary behaviour, Brandon would be extremely unlikely to follow a generic exercise program. This would result in Brandon becoming disengaged with the program ... In his exercise physiology sessions, Brandon will follow an individualised progressive exercise program that targets his deficits at a level that will solicit improvements but is still achievable. This program is progressed by an exercise physiologist that is trained to progress individuals such as Brandon in a variety of ways that will ultimately ensure Brandon is engaged, progressing and achieving his goals > > Adherence > > Brandon exhibits a history of poor exercise adherence, especially when not being directly supervised. Brandon tends to isolate himself from others and participate in sedentary activities. This means that without encouragement from others that he trusts Brandon will not voluntarily exercise. This barrier is able to be addressed by having his older sister Peyton run his sessions with programming and guidance provided by an accredited exercise physiologist to increase Brandon's physical activity levels. This will ultimately allow him to increase his exercise capacity and achieve his NDIS goals. > > 1:1 supervision is most appropriate > > Due to Brandon's decreased balance which results from his autism spectrum disorder diagnosis, he has an increased risk of injury. Without adequate supervision (1:1 supervision) this presents as a potential safety issue. Without 1:1 supervision he would not be able to safely perform the necessary exercises to correct this deficit. An injury would require further time away from sessions and ultimately will result in a further decline in his capacities. Exercise Physiologists are trained to adapt exercise programs to suit an individual's needs as well as recognise safety concerns and design an appropriate program around these concerns.

5. Ms Burrows' report is essentially to the same effect. However, notably, she opines as to the importance of the proposed delegated model due to the Applicant's paranoia, refusal to interact with persons outside his immediate family, or attend venues outside his family home.
6. The CEO accepts that exercise physiology is a reasonable and necessary support for the Applicant and does not quibble with the quantum requested. Her objections to the approval of this support are founded on its model of delivery; that is, she objects to this support being implemented by the Applicant's sister on a paid basis, except to the extent that this is a short-term transitional arrangement either to this support being provided to the Applicant directly by an exercise physiologist, or under a delegated model by a disability support worker who is not a family member. She does not object to this support being provided to the Applicant by family members under a delegated model on an unpaid basis.[67]
7. With respect to the s 34(1)(a) requirement, I note that the second short-term goal in the Applicant's Statement of Goals and Aspirations is: "[t]o support and improve [the Applicant's] physical and mental health, diet and wellbeing fitness". Under this goal are the following sub-headings and commentary:

How I will achieve this goal > > I will work with my supports to build my interest in fitness activities and participate in positive healthy routines. > > How I will be supported > > My family will assist me. My support workers will work with me to explore healthy activities. My Allied health supports will provide me with strategies to help me to engage in interests. My Allied health supports will provide me with behaviour strategies to help me participate.

8. There is an obvious direct connection between exercise physiology support and this goal. I am satisfied that this support would assist the Applicant to pursue his fitness and health related aspirations.
9. With respect to the paragraph 34(1)(b) requirement I am satisfied that exercise physiology support will assist the Applicant to undertake activities (being structured, routine exercise) that will reduce his obesity and increase his tolerances for standing and walking. In the context of several other variables this will facilitate his social and economic participation; that is, his movement related capacity. I note on the evidence before me this is likely to require time and patience.
10. With respect to the paragraph 34(1)(c) requirement I am satisfied that exercise physiology support is directed at building the Applicant's functional capacity for self-care, and over time, and in combination with other factors, also has the potential to increase his functional capacity to undertake tasks and actions involved in social interaction. I am persuaded that a professionally designed exercise program for the Applicant is appropriate given his impairment profile and deconditioning. It constitutes value for money on this general basis for the purposes of paragraph 34(1)(c) and Rule 3.1(b). The hours of support sought and the frequency of their delivery (on either of the bases proposed by Mr Burns and Ms Burrows) are proportionate to the objective of providing this support. Funding for this support will otherwise be determined in accordance with the Agency' NDIS Pricing Arrangements and Price Limits 2025-2026.[68] It constitutes value for money on this basis having regard to the Act and Rule 3.1(a) and (e).
11. I do not have any concern about the delegated model of exercise physiology per se and note that this is a typical model of delivery of support of this kind, albeit usually after an initial period of the direct provision of such support to a participant. Over time, the delegated model is likely increase in value for money as additional sessions can be scheduled using this approach without an exercise physiologist being directly involved (the supervision of the exercise sessions being carried out by disability support staff).
12. With respect to the paragraph 34(1)(d) requirement I note that exercise physiology is an accepted form of allied health care and support for persons experiencing health risks due to deconditioning. It is recognised a NDIS Support in Schedule 1 of the NDIS Supports Transitional Rules. It thus may be taken to be effective and beneficial for the Applicant given his impairment profile and deconditioning having regard to current good practice, including by reference to Rule 3.2(a) of the Supports for Participants Rules.
13. With respect to the paragraph 34(1)(e) requirement, and by reference to Rule 3.4(b) of the Supports for Participants Rules, exercise physiology is not a form of support that it is reasonable to expect family members, carers, informal networks and the community to provide to the Applicant. It is an allied health specialisation that requires specialist training, knowledge and skill.
14. The CEO is concerned, by reference to Rule 5.1(a) of the Supports for Participants Rules, that the performance of the delegated model of exercise physiology by Ms Peyton Trapezanidis on a paid basis may cause harm to the Applicant and his family, by fundamentally altering the nature of their relationship. This concern is about whether Ms Ms Trapezanidis should be involved in the Applicant's support as a paid support worker. There is nothing particular to exercise physiology in this concern. The CEO accepts that the delegated model of exercise physiology could be implemented by family members on an unpaid basis. Having regard to that, I rely on what I have said above in relation to the request for disability support worker assistance.
15. With respect to the paragraph 34(1)(e) requirement, I am therefore satisfied that exercise physiology is a reasonable and necessary support having regard to what it is reasonable to expect families, carers, informal networks and the community to provide.
16. For the foregoing reasons I am satisfied that 26 hours per annum of exercise physiology support is a reasonable and necessary support which ought to be approved for inclusion in the Applicant's SoPS. This includes allowances for exercise program design and revision, delegated implementer training, program supervision, and program evaluation and report writing.

1. The final issue requiring determination is the date by which, or the circumstances in which, the Agency must reassess the Applicant's Participant Plan pursuant to paragraph 33(2)(c) and s 49 of the Act.
2. The Applicant submits that the Tribunal ought to determine pursuant to paragraph 33(2)(c) that the reassessment date for the Applicant's plan will be 3 years from the date of its decision. In this context it is further proposed that this '3 year plan' be divided into 3, 1-year funding intervals pursuant to paragraph 33(2C)(a)(ii).
3. The Applicant submits in support of this proposal that a SoPS of this duration is necessary to provide the Applicant and his family with stability after what has been a prolonged traumatic period of uncertainty and disruption. Additionally, it is submitted that the implementation of approved support for SDA, and the Applicant's transition to this new accommodation and living arrangement, will take some time, particularly because there are no SDA properties available in his location of choice, which is likely to require construction of an approved SDA dwelling. It is further submitted on this point that the appropriate point for reassessment of the plan will be when the SDA property becomes available to the Applicant as it will then be necessary to re-determine what supports are reasonable and necessary in this new environment.[69]
4. The CEO opposes the Tribunal specifying a 3-year reassessment date for the Applicant's plan. She submits by reference to paragraph 34(1)(d) and Rule 5.1(a) of the Supports for Participants Rules that a '3-year plan' would not be effective and beneficial and is likely to cause harm to the participant or pose a risk to others.
5. The CEO approaches this issue on the basis that paragraph 33(2)(c) is governed by the matters specified in s 34(1) and that Rule 5.1(a) is engaged, that is: that the proposed reassessment date must be reasonable and necessary, and not be likely to cause harm to the participant or pose a risk to others.[70] However, that is not the case.
6. Section 34(1) governs the determination of the general supports (if any) that will be provided to, or in relation to, the participant (paragraph 33(2)(a)) and the reasonable and necessary supports (if any) that will be funded under the NDIS. It does not govern the matters referred to in s 33(2)(c), (d) and (e).
7. Rule 5.1(a) of the Supports for Participants Rules provides, in summary, that a support will not be provided or funded under the NDIS if it is likely to cause harm to the participant or pose a risk to others. A distinction is to be drawn between a support and a reassessment date; a reassessment date is not a support.
8. However, in substance, the CEO's submission referencing Rule 5.1(a) is in relation to the proposed initial provider of one-to-one support worker assistance to the Applicant, being his sister Ms Peyton Trapezanidis. It is submitted that should this arrangement continue beyond an initial transition period it will be harmful to him and also his family members in terms of entrenching socially isolative behaviour and immediate family dependence. Additionally, the CEO submits that a '3-year plan' is only appropriate in circumstances where a participant is in a stable situation with support needs that are unlikely to change, where they are confident in using their funding to achieve their goals, and where they are focused on longer term goals, which it is said, is not the Applicant's situation.
9. I accept the Applicant's submission that he and his family now require stability and certainty in the provision of supports to be able to recover from a traumatic period of uncertainly and disruption, and work towards a future that will afford each of them reasonable quality of life. It is to be hoped that the supports approved here and otherwise already included in his SoPS will provide the foundation for continuity of support towards the attainment of those goals. In this respect it brings to conclusion various disputes between the parties that have inhibited progress towards obtaining a satisfactory long-term support arrangement for the Applicant post his transfer to the NDIS from his former State funded support arrangement.
10. But this SoPS is only a starting point in a planned major transition from informal to formal supports, and to independent living for the Applicant. In this respect, the Applicant's circumstances are not 'stable' in the sense that change is not anticipated over a 3-year trajectory. In fact, fundamental change is anticipated within that timeframe.
11. In my view it is appropriate that the CEO maintains reasonable oversight of the implementation of the transitions envisaged by the supports approved in the Applicant's SoPS by virtue of this decision and otherwise for several reasons. Those reasons are: to ensure that a clear concrete transition plan is established; that there is reasonable momentum in the implementation of that transition plan; that there is agility to vary supports should circumstances emerge during implementation that require this; and, to ensure that the funded supports function in an integrated, cohesive way consistent with the attainment of transition goals.
12. The timely resolution of the serious challenges facing the Applicant and his family in terms of his support arrangements should be the driving motivation for oversight of the Applicant's plan by the Agency. Nevertheless, it is also appropriate to note that the Applicant's SoPS involves a very a substantial commitment of public expenditure both in any current term of his plan and on a lifelong basis. On a prudential basis it is therefore appropriate for the Agency to ensure that this funding is being utilised efficiently and effectively in terms of the implementation of the planned transitions.
13. For these reasons, pursuant to paragraph 33(2)(c) I will specify that the Applicant's plan is to be reassessed by 31 August 2026.

1. For the foregoing reasons, I make the following orders:

(1) Pursuant to s 105 of the Administrative Review Tribunal Act 2014 (Cth) the decision under review made on 2 October 2024 is set aside and remitted to the CEO for reconsideration by 1 October 2025 in accordance with directions that:

(a) the following supports are to be approved for inclusion in the Applicant's Statement of Participant Supports:

(i) 56 days Short-Term Accommodation, such support to be provided subject to the conditions referred to in paragraph 1(a)(iii),

(ii) Specialist Disability Accommodation with 2 bedrooms and an additional room for on-site overnight assistance for 1 occupant:

• - building type: house,
• - design category: improved liveability,

(iii) Assistance with daily living and social and community participation:

• - 30 hours per week on weekdays at 1:1 intensity;
• - 5 hours on Saturdays at 1:1 intensity;
• - 4 hours on Sundays and public holidays at 1:1 intensity,

such support to be provided subject to the following conditions:

1. Transition to provision of this support by a provider independent of the Applicant's family before the reassessment date, and
2. Ms Peyton Trapezanidis must not be engaged to provide this support for more than 5 days per week, or for more than 8 hours per day,

(iii) 30 hours of psychology support; > > (iv) 26 hours of exercise physiology support.

(b) The support specified in paragraph 1(a)(ii) is to replace the SDA support specified in the Applicant's existing Statement of Participant Supports,

(c) The support specified in paragraph 1(a)(iii) is to replace Assistance with Social Participation in the Applicant's existing Statement of Participant Supports,

(d) All other supports in the Applicant's current Statement of Participant Supports, excepting any one-off assistive technology supports already used, are to be replicated from the date on which the supports specified in paragraph 1(a) are included in the Applicant's Statement of Participant Supports until the reassessment date,

(e) the date by which the CEO must reassess the Applicant's plan is to be 12 months after the supports in paragraph 1(a) are included in the Applicant's Statement of Participant Supports.

(2) Pursuant to s 101(a) of the Administrative Review Tribunal Act 2024 (Cth) the application for review insofar as it concerns the internal review decision dated 25 November 2021, and the CEO's decision to approve a Statement of Participant Supports dated 5 October 2022, is dismissed on the basis that it is now lacking in substance.

1. 18, 19 21 and 22 November, 19 and 20 December 2024, 31 January 2025

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

[2] This summary is compiled from the Carer Impact Statement of Mr and Ms Trapezanidis (Hearing Tender Bundle Tabs A23, A35), and the reports of Dr Birtles, General Practitioner (Hearing Tender Bundle, Tab A18), Dr Bounds, Clinical Psychologist, (Hearing Tender Bundle, A25, A32), Ms Tunnicliffe, Specialist Support Coordinator (Heating Tender Bundle Tab A20) and Ms Lorimer, Occupational Therapist (Hearing Tender Bundle, Tab A21) and their oral evidence given at the hearing.

[3] Hearing Tender Bundle, pages 877 - 889.

[4] This is described In Annexure A of the CEO's Statement of Facts, Issues and Contentions dated 15 November 2024 as: "This is for Brandon's day to day needs living with 2 other people. This will help him build his skills to live as independently as possible. This includes $11,758.82 for irregular SIL supports. This is for times he needs support outside his usual week, for instance if Brandon needs to stay home when he is sick.

[5] This allows for 1144 hours of weekday daytime support per year; 208 standard Saturday support per year and 208 standard Sunday support per year: see Annexure A Ibid.

[6] This is described as follows: "I am eligible for SDA. While I live at my current address, my design category is Improved Liveability, building type is House, 3 residents, location is [suburbs]. If I cant to move address, I am still eligible for SDA but I will need to contact the NDIA for the next steps to assess my SDA amount": Hearing Tender Bundle, page 888.

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

[8] Shi v Migration Agent's Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [45] - [46]

[9] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [60]; National Disability Insurance Agency v WRMF (2020) 378 ALR 449 at 491 [201]

[10] Beezley v Repatriation Commission [2015] FCAFC 165 (2015); 150 ALD 11 at [68]; HPSC and National Disability Insurance Agency [2021] AATA 727 at [85]

[11] Re Drake and Minister for Immigration and Ethnic Affairs (no. 2) (1979) 2 ALD 634

[12] Allen and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1359

[15] World Health Organisation (2011), International Classification of Functioning Disability and Health (ICF), Geneva; in DQKZ and National Disability Insurance Agency [2025] AATA 2276 I have explained why the ICF may be used as an aid to interpretation of terms and concepts used in the implementation of the ICF. I adopt for present purposes what I said there: at [144]ff

[16] In Mulligan v National Disability Insurance Agency [2015] FCA 544 at [55] the Court observed that the legislative scheme contemplated that a person's impairments will be identified with a high degree of precision.

[23] ICF, Chapter 1, b152, b1529, b1521, b1522

[24] ICF, Chapter 1, b160, b1601, b1602, b1603

[26] The evidence of this is found in the reports of Dr M Birtles, General Practitioner, Dr J Bounds, Clinical Psychologist, Ms Tunnicliffe, Specialist Support Coordinator, and Ms Lorimer, Occupational Therapist, op.cit.

[27] Hearing Tender Bundle, tab A 25, pages 709 - 710.

[28] National Disability Insurance Agency, Medium term accommodation (operational guideline), 30 January 2023

[30] [2018] FCA 1229

[31] Hearing Tender Bundle, Tab A 21, page 696.

[32] See specifically, George and Lisa Trapezanidis - summary of carer roles for Brandon for NDIS Planning purposes 2021, Hearing Tender Bundle, Tab T12, pages 165 - 175; Carer impact statement by George Trapezanidis (undated), Hearing Tender Bundle Tab A23, pages 704 -705; Statement of George and Lisa Trapezanidis as carer of Brandon Trapezanidis, dated 6 November 2024, Hearing Tender Bundle at page 822

[33] Dr J Bounds, report dated 12 February 2024; Hearing Tender Bundle, Tab A24, page 707; and oral evidence given at the hearing.

[34] National Disability Insurance Agency, Our guideline - Short Term Accommodation or Respite, 24 June 2022.

[35] CEO's SFIC, filed 15 November 2024 at [55], by reference to the Agency's pricing policy at C8.

[36] Allen and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1359

[38] Allen, op.cit. at [42] to [44]

[39] Rule 14(1)(c) is inapplicable in this case, because the Applicant has satisfied Rule 11 based on Rule 12 (an extreme functional impairment).

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

[42] Functional and Support Needs Assessment report, by Ms D Brown, 2 April 2022, Hearing Tender Bundle, Tab A 4, page 453.

[43] National Disability Insurance Agency, NDIS Specialist Disability Accommodation Design Standard, Edition 1.1, 25 October 2019.

[46] Hearing Tender Bundle, Tab T1H, page 48

[47] Hearing Tender Bundle, Tab A4, page 455

[48] National Disability Insurance Agency, Including Specific Types of Supports in Plans Operational Guideline - sustaining informal supports, 10 May 2023.

[51] I find general support for the observations set out here in the Report of the Independent Expert, Mr Angel, dated 12 July 2023, Hearing Tender Bundle, pages 873 - 876.

[53] Quote provided by Dr J Bounds, dated 12 February 2024, Hearing Tender Bundle, Tab A25, pages 710 - 711; this quote is updated and reduced to 20, 1 hour sessions and 2, hours of report writing in a later report Hearing Tender Bundle at Tab A32, page 810.

[54] Dr J abounds, 'The need for psychological support, 25 September 2024, Hearing Tender Bundle, Tab A32, pages 804 - 811.

[55] Addendum to report of Ms C Lorimer, Occupational Therapist, dated 31 January 2024, Hearing Tender Bundle, Tab A36 page 834

[57] National Disability Insurance Agency, NDIS Pricing Arrangements and Price Limits 2025-2026, June 2025

[58] see s 3(1)(e), 4(4), 4(8), 17A(1), (2),(3)(b), and 31(b), (g)

[59] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [142]

[62] Hearing Tender Bundle, Tab A21, pages 697 - 698; a reiteration of what is set out here appears in a document dated 4 October 2024 prepared by Ms Lorimer in response to questions put to her on behalf of the CEO; see Hearing Tender Bundle, Tab A34, pages 817 - 819

[63] Hearing Tender Bundle Tab A36, pages 833 -834.

[64] N Burns, Exercise Physiologist, report dated 27 February 2024

[65] L Burrows, Exercise Physiologist, undated report, filed by the Applicant in August 2024.

[66] Mr Burns reports the Applicant as having a Body Mass Index of 31.5/m2 which is in the medically obese range.

[67] CEO's SFIC filed 15 November 2024 at [93] - [94].

[69] Applicant's SFIC, dated 6 November 2024, at [136] - [137].

[70] CEO's SFIC dated 15 November 2024 at [19]