Are we required to consider whether the support sought has been modified or adapted to address Ms Hyde's impairments?

1. In our view, it is abundantly clear from the Transitional Rules, in particular the definition of 'standard item' in section 4, that a support which is potentially a 'standard item' will only fall within that description and be excluded by Schedule 2, if it has not been modified or adapted to address the functional impairments of the relevant participant. It follows that to determine whether the support is caught by Schedule 2, it is necessary to determine whether the support sought has been modified or adapted to address the functional impairments of the participant. If it has been, it will be excluded from the operation of Schedule 2.
2. The question for us therefore is whether the security system requested by Ms Hyde, in its entirety, has been modified or adapted to address her functional impairments.

**_Has the support sought been modified or adapted to address Ms Hyde's impairments?

1. Ms Hyde has been living alone in her current property since July 2022, with her current guide dog, and also her previous guide dog (now retired). We understand that the NDIS provided funding for smart locks which allowed her to access her previous rental properties independently. However, Ms Hyde's current property, which she owns, does not have a smart lock system. Her evidence was that currently her front gate is not accessible to her for reasons including lighting, the design of the gate and the need to use a key for the gate.[106] The need for a key causes many issues for her. She has attempted to overcome these including through the use of lockboxes, colour-coding her keys and using air-tags, but none of these measures have been effective in allowing her to overcome the difficulties associated with entering and securing her property as a consequence of her vision impairment.[107]
2. Ms Hyde's front gate must be kept locked as it is connected to her front yard, which is used by her guide dogs. She does not have a backyard. On occasions in the past when the front gate has been left open, by delivery drivers for example, her dog has left the property.[108] The gate therefore needs to be locked, not only for her safety but the safety of her dogs and the general public. In addition, Ms Hyde's evidence is that that her difficulty with using her front gate has resulted in her being locked out of her property over 20 times.[109]
3. As we understand it, it was these experiences which led Ms Hyde's former occupational therapist, Ms Kathy Inglis, to identify the Control4 system as a security system which would allow Ms Hyde to secure her doors and front gate using voice commands.[110] It will also allow her to independently enter and exit the property.
4. We are satisfied that Ms Hyde's functional impairments mean that she cannot safely and independently enter and exit her property or meaningfully engage in social and economic life.
5. Mr Peter McVicar, the then Managing Director of FM Home Technologies Pty Ltd gave evidence to the First Tribunal about the requested support. He outlined the following features which would assist Ms Hyde with accessing and securing her home (as accurately summarised in the Respondent's submissions):

(a) when someone rings the doorbell, Ms Hyde's phone will ring and 'annunciate' which door the person is at; > > (b) the system will enable Ms Hyde to talk to the person on the intercom through her mobile phone, and open the gate from her phone; > > (c) the gate will automatically open and the system will annunciate to Ms Hyde that the 'Gate is open', and 'Gate is closed behind them'; > > (d) the system will be compatible with Siri on iPhone devices, allowing Ms Hyde to open the front gate or front door by speaking to Siri; > > (e) a beam sensor would be installed which would sense whether Ms Hyde had crossed a particular point within a particular period of time after opening the gate; and > > (f) were Ms Hyde to have a fall, the voice-activated system would allow Ms Hyde to open the gates for the ambulance or any other person to assist her without having to make her way to the door or gate.[111]

6. Both parties referred to the evidence of Mr McVicar, which included the following:

We also decided in your case because you won't know whether the gates open or close behind you, we put there the gate contractor - we asked him to put a beam further in on the property. So if you haven't crossed that beam, then the gate - if you're crossing that beam at that time, the gate's not going to close on you. So by the time you're gone, 30 seconds later the gate will automatically close behind you. And again, it will annunciate, 'Gate is closed', so then you know that if you wanted to let the dog out in the front yard that the gate is definitely closed.[112]

...

I did insist that we put a battery back-upon the front gate as well...[113]

[The Control4 system] It's an off the shelf server that you can customise to everyone's needs[114]

...

Every system is customised. There's no system...there's no two systems that they're the same.[115]

...

Q: And the annunciation feature, that's a feature that can be used for anyone. It's just part of that system?

A: No...we're making this up for them. So what we're doing is...I'm buying a little amplifier that I've been playing around with, and that little amplifier will have a speaker that would annunciate for [Ms Hyde] so then she would hear that. So I'm actually designing it.[116]

...

It has the facility to do [annunciation], it all comes down to how you customise it.[117]

...

So there are some great features for people with vision impairment, but is it specific to that? No, it's me designing the system to make it do that. But is it off the shelf? Yes...you buy the system, all the capabilities in it. It's just me applying the scenario of [Ms Hyde] into that scenario.[118]

...what I asked him was to put the beam in just in case [Ms Hyde]'s coming through , and she's stopped because the dog interrupted her or something to that effect, or she dropped something that the gate wouldn't close on her. She wouldn't see that. So the beam's being - so while she's got the beam crossed, the gate won't engage. So it's just a safety feature.[119]

1. Ms Hyde gave evidence, not contradicted by the Applicant, that the Control4 system can be trained to recognise certain people, for example her support workers or family members. It can then announce who is at the door, enabling Ms Hyde to identify that person.[120]
2. Emails between Ms Obradovic and Mr Terry Gerin, Dandenong Wrought Iron, dated 6 February 2025 include the following.

We do not want auto opening when it detects a person on the outside or inside as the purpose is for [Ms Hyde] to control access to her home. It will need to be set to auto-close after a period of time and the opening/closing speed will need to be gentle to avoid injury to her, any dogs and visitors.[121]

...can you please clarify the options for sensors and/or beepers to alert a blind person...that a gate is opening and closing so as to avoid them and their guide dog being hit by the gate?[122]

I will make gate as soft as possible to so it reverse when hitting someone opening and closing.[123]

And a buzzer will buzz when opening and closing and different buzz when open.[124]

1. Based on the evidence described above, we find that the security system requested by Ms Hyde has been modified and adapted to address her functional impairments. It follows that the requested support is not 'standard home security' or 'standard household...item' and so is not excluded by operation of Items 1(c) and (g) of Schedule 2.
2. We consider that the inclusion of a customised gate operator, sensor beam and battery pack changes the character of what otherwise might be 'standard home security' or a 'standard household...item' to a home security system that has been modified and adapted to meet Ms Hyde's functional impairments. We are satisfied that any one of the following dictionary definitions of adapted could apply to the requested support, 'to make suitable to requirements adjust or modify fittingly', 'to make (something) suitable for a new use or purpose'; 'modify' or 'Changed slightly for a particular purpose or use'.
3. The Agency argues that each component of the Control4 System meets the description of 'standard home security' and the fact the components are combinable does not change their character. However, we are persuaded that the requested support must be considered as a whole, and not its component parts. This approach is consistent with the decision of Dudgeon and in our view is required by the terms of s 34.
4. For us, the outcome in this matter does not turn on whether the Control4 or any of the other components of the requested support have been modified or adapted, but on whether the requested support in its entirety constitutes 'standard home security'. In our view, the answer to that question is no, because the security system proposed by Ms Hyde has been adapted to address her functional impairments. Looked at as a whole, the system she seeks is not identical to one which would be installed by a person without her impairments. It is different because it contains elements which address her impairments and would be not required by a sighted person, in particular the customised gate operator, sensor beam and battery pack. In our view, it is therefore not 'standard home security' or a 'standard household item'.

1. As will be apparent, we are not persuaded by either party's proposed construction of standard item.
2. In our view, the Respondent's proposed construction that standard item refers to a commonplace or typical item that is not modified or adapted to address a functional impairment introduces an element of subjectivity which does not accord with the words of the relevant legislation, rules and objects of the Act.
3. We also do not accept the Agency's proposed construction which does not involve consideration of the specific circumstances of a participant, and would result in a standard item being a standard item for all participants or prospective participants. In our view, this construction fails to take into account the definition of 'standard item' in s 4 of the Transitional Rules.
4. We accept that the Transitional Rules must be construed having regard not just to their terms, context and the relevant extrinsic materials but having regard to the objects of the Act and the operation of the Scheme as a whole.
5. In considering the construction of standard item in s 4 of the Transitional Rules, we consider that the following matters are relevant:

(a) The use of the words 'a participant or prospective participant_'_ and 'the participant or prospective participant_'_ in s 4 of the Transitional Rules (emphasis added). We consider that the use of those words directs attention to whether an item has either been modified or adapted for a current or prospective participant to address their functional impairments. It follows that we do not accept the Agency's contention that the definition of 'standard item' defines the concept for all current or prospective participants and does not involve consideration of the functional impairments of a participant. > > (b) Unlike Schedule 1 that includes a column 3 which identifies the category of participants and prospective participants for whom a support is an NDIS support, Schedule 2 does not have a column 3. Instead, the opening words in Schedule 2 state that the table sets out supports that are not NDIS supports for '(a) a participant (unless a replacement support determination covering the support is in force for the participant) or (b) a prospective participant_'._ Reference again to a current or prospective participant reinforces our view that consideration must be given to the particular participant or prospective participant. > > (c) The Explanatory Statement which describes Schedule 2 declaring that the NDIS will not fund a number of standard items but may fund items that are specifically required or modified as a result of a person's functional impairment.

6. We consider that the commercial availability or otherwise of an item is not relevant to whether the item is a 'standard item' for a current or prospective participant for the purposes of Schedule 2.
7. In determining whether an item is a standard item for a participant, we consider that the Act, together with the Transitional Rules, direct a decision-maker's attention to the following matters.

(a) the participant and the functional impairments of the participant; > > (b) the support sought by the participant; > > (c) the definitions of modified and adapted, and > > (d) whether the support consists of an item which has been modified or adapted to address the functional impairments of the participant.

The relevance of the replacement support provisions

1. We do not consider that the late inclusion of sub-ss 10(6)-(8) in the Act, providing for a replacement support determination, affects how Schedule 2 was intended to operate. As submitted by the Respondent, the replacement support determination provisions will operate regardless.
2. We note that a replacement determination can only be made in very limited circumstances. Most notably, the support must be specifically prescribed by the relevant Rules, it must replace one or more other supports for the participant and cost no more than the support it is replacing. It appears to us that there will be many supports which are likely to be of significant benefit to participants, but which cannot meet the requirements for a replacement determination.
3. This matter is a case in point. Were Ms Hyde to apply for a replacement determination, it is very unlikely her application would succeed. Arguably, a replacement determination could not be made for two main reasons. First, it would not fall within the applicable item in s 7, as it is not a 'standard commercially available household item'. Second, it is not clear that it would be replacing another support, making it very difficult for her to show that the cost of the system would be no greater than the cost of the support being replaced.
4. In our view, the replacement determination mechanism has a very specific sphere of operation. In particular circumstances, it allows a participant to apply for funding for a support which is in fact a standard item, i.e. an item which has not been modified or adapted to address their functional impairments. This mechanism does not overlap with the ordinary operation of the Rules, which in our view clearly allow for an otherwise standard item to be funded for a participant if it has been modified or adapted to address the functional impairments of a participant.
5. On our analysis, the replacement determination mechanism sits comfortably alongside the ordinary operation of the Rules. Where an otherwise standard item has been modified or adapted, it can be funded pursuant to the ordinary operation of the Rules. However, where a participant seeks funding for a standard item which has not been modified or adapted, they must seek a replacement determination. In our view, these are different, not alternative pathways.

1. For completeness, we have also considered the 'rule-making power' in s 10(4) and the extent to which this sheds light on the proper construction of Schedule 2. However, we do not consider this of assistance. In our view, Schedule 2 declares that the supports specified are not NDIS supports for 'participants or prospective participants generally'. However, the precise wording of some of the items in Schedule 2, in conjunction with the definition of 'standard item' in s 4 allows any participant to obtain funding for an otherwise standard item which has been modified or adapted to address their functional impairments. Put another way, Schedule 2 defines supports which are not NDIS supports so as to exclude otherwise standard items which have been modified or adapted to address a participant's functional impairments.

1. We are satisfied that the requested support is adapted and modified to address Ms Hyde's functional impairments arising from vision loss. Ms Hyde is proposing to adapt existing software and combine this with particular hardware items to address her specific functional impairments. That is sufficient in our view to render the requested support a non-standard item for her.
2. We have had regard to the Agency's submission that for supports that involve customisable technology, it is more difficult to demonstrate that the support is modified or adapted because of the many features that are inherent in technology which might, depending on their use and method of deployment, be beneficial for a particular participant.[125]
3. We accept the Control4 system software functionality is present in all Control4 systems and that certain of these functionalities have been activated to meet Ms Hyde's functional impairments. We acknowledge that the Control4 system, without more, even having features that can be enabled or activated to address Ms Hyde's impairments are latent within the Control4 system, may constitute a standard item. The Control4 system reflects universal design principles, being a security system that is accessible and usable by all members of the community, including those living with a disability, without the need for adaptation or specialised design. However, given the facts of this case, it is unnecessary for us to determine how the Transitional Rules would apply if the support sought was just the Control4 system.
4. We note the Agency did not contend that any of the other criteria under s 34(1) are in dispute. Accordingly, we propose to set aside the internal review decision and vary the original decision to require that the requested support be included in Ms Hyde's statement of participant supports.

1. The Tribunal sets aside the original reviewable decision of 28 September 2023 and in substitution for that decision varies Ms Hyde's statement of participant supports to include the following reasonable and necessary supports:

(a) Automation lighting > > > (i) Wi-Fi relay lighting pack > > (b) CCTV systems > > > (i) Alto 1400 VA UPS > > (c) Controllers > > > (i) Control4 CORE 3 controller > > (d) Drivers > > > (i) Driver for Wi-Fi lighting and dimmer suite > > (e) IP Intercoms > > > (i) Control4 bundle door station surface mount with keyboard > > > > (ii) Akuvox E12W video door intercom with relay and Wi-Fi > > (f) Locks: Yale deadbolt touchscreen ZigBee > > (g) One pedestrian gate operator with two hand controls and separate transformer > > (h) Battery back-up

[1] At [57] to [61] of this Statement of Reasons.

[2] At paragraphs [62] to [83] of this Statement of Reasons.

[3] At paragraphs [84] to [90] of this Statement of Reasons.

[4] At paragraphs [137] to [140] of this Statement of Reasons.

[5] At paragraphs [95] to [120] of this Statement of Reasons.

[8] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47].

[9] R v A2; R v Magennis; R v Vaziri [2019] HCA 35 at [124].

[10] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355 cited in Certain Lloyd's Underwriters v Cross (2012) HCA 56 at [24] (French CJ and Hayne J).

[11] (NDIS) [2025] ARTA 1824 at [44].

[12] Applicant's submissions dated 12 August 2025 at [84].

[13] (NDIS) [2025] ARTA 37 at [156] to [157].

[17] Respondent's submissions dated 8 September 2025 at [55].

[18] Explanatory Statement, pages 1, 2 and 39.

[19] Macquarie Dictionary (online at 1 December 2025) 'modified'

[20] Macquarie Dictionary (online at 1 December 2025) 'adapted'

[21] Oxford Dictionary (online at 1 December 2025) 'adapted'

[22] Cambridge Dictionary (online 1 December 2025) 'adapted'

[23] At [124] of these Statement of Reasons.

[24] Submissions for the NDIA dated 12 August 2025 at [80].

[25] Submissions for the NDIA dated 12 August 2025 at [82].

[27] Applicant's Reply Submissions dated 22 September 2025 at [26].

[28] Applicant's Statement of Facts, Issues and Contentions at [19], quoting from

[29] Applicant's Statement of Facts, Issues and Contentions at [22].

[30] Joint Tender Bundle (JTB), folio 328.

[31] Applicant's submissions dated 12 August 2025 at [81].

[32] Transcript from First Tribunal, JTB, folio 457.

[37] Macquarie Dictionary (online at 1 December 2025) 'adapted'

[38] Oxford Dictionary (online at 1 December 2025) 'adapted'

[39] Cambridge Dictionary (online 1 December 2025) 'adapted'

[40] (NDIS) [2025] ARTA 3; [111] to [114] as summarised in the Applicant's submissions dated 12 August 2025 aat [101].

[41] At [85]; Applicant's submissions dated 12 August 2025 at [101].

[42] (NDIS) [2025] ARTA 158 at [47] - [48]; Applicant's submissions dated 12 August 2025 at [102].

[43] Oxford Dictionary (online at 1 December 2025) 'adapted'

[44] Cambridge Dictionary (online 1 December 2025) 'adapted'

[45] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.

[46] In accordance with s 128(2)(a) of the ART Act.

[47] Hyde and CEO, National Disability Insurance Agency (Guidance and Appeals Panel) [2025] ARTA 1242.

[49] Section 34 was amended by the Amending Act by insertion of '(aa)' and '(f)'.

[51] Explanatory Statement, pages 1 to 3.

[69] Applicant's submissions dated 12 August 2025 at [19] to [20].

[70] Respondent's submissions dated 8 September 2025 at [15]; original quote JTB, folio 299.

[73] Applicant's submissions dated 12 August 2025 at [81].

[74] Applicant's submissions dated 12 August 2025 at [84].

[75] Applicant's submissions dated 12 August 2025 at [83].

[76] Applicant's submissions in reply 22 September 2025 at [10].

[78] Applicant's submissions dated 12 August 2025 at [85] to [88].

[79] Applicant's submissions dated 12 August 2025 at [89].

[80] Applicant's submissions dated 12 August 2025 at [104].

[81] Applicant's submissions dated 12 August 2025 at [49].

[83] Respondent's submissions dated 8 September 2025 at [37].

[85] Respondent's submissions dated 8 September 2025 at [38].

[87] Respondent's submissions dated 8 September 2025 at [48].

[88] Respondent's submissions dated 8 September 2025 at [55].

[89] Respondent's submissions dated 8 September 2025 at [71].

[90] Respondent's submissions dated 8 September 2025 at [72].

[91] Applicant's reply submissions dated 22 September 2025 at [11].

[93] Applicant's reply submissions dated 22 September 2025 at [12].

[94] Applicant's reply submissions dated 22 September 2025 at [18].

[95] Applicant's reply submissions dated 22 September 2025 at [20].

[96] Applicant's reply submissions dated 22 September 2025 at [21].

[97] Macquarie Dictionary (online at 1 December 2025) 'modified'.

[98] Macquarie Dictionary (online at 1 December 2025) 'adapted'

_&#820[9]_99 Oxford Dictionary (online at 1 December 2025) 'adapted'

[100] Cambridge Dictionary (online 1 December 2025) 'adapted'

[101] Merriam Webster (online at 1 December 2025) 'adapted'

[103] Respondent's Statement of Facts, Issues and Contentions at [31].

[104] Applicant's Statement of Facts, Issues and Contentions at [5].

[105] Applicant's Reply Submissions dated 22 September 2025 at [26].

[106] Transcript from First Tribunal page 12, Lines 14 to 16.

[108] Transcript from First Tribunal page 14, 14-18.

[109] Transcript from First Tribunal page 13, 44-45.

[111] Respondent's submissions dated 8 September 2025 at [12].

[120] Transcript from First Tribunal page 18, Lines 13 to 28.

[125] Applicant's submissions dated 12 August 2025 at [104].