THE NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 (CTH)

1. Section 34 identifies what constitutes a 'reasonable and necessary' support under the Scheme.
2. Section 34 provides as follows:

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

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

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

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

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

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

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

(f) the support is 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 the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.

1. The 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).

31. Subsection 34(1) is cumulative and therefore all the criteria must be met.

1. I turn to s 10 and the Transitional Supports Rules (made under the Amending Act) to determine whether something is, or is not, an NDIS Support so defined at s 10.
2. Subsection 34(2) provides that the NDIS Rules may prescribe methods or criteria to be applied, or matters to which the CEO must have regard, in deciding whether the criteria under s 34(1) are met in respect of a requested support.
3. Section 35 and the Amending Act respectively provide for the making of rules in relation to prescribing reasonable and necessary supports or general supports that will not be funded or provided under the NDIS. The relevant rules under s 35 in respect of this review are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 ('Supports Rules'), and under the Amending Act the relevant rules are the Transitional Rules.
4. Schedule 1 to the Transitional Rules identifies supports that are NDIS supports, unless otherwise provided, for the purposes of s 10(1). Likewise, Schedule 2 to the Transitional Rules identifies supports that are not NDIS supports for the purposes of s 10(1).
5. In McGarrigle v National Disability Insurance Agency[14] at [43], Mortimer J (as Her Honour then was) made the following observations in respect of these rules:

The [Supports Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement...some policy decision-making about the nature and extent of supports to be provided or funded.

6. The phrase 'reasonable and necessary' is not defined in the Act. It is a composite phrase and should be considered as such. In McGarrigle, Mortimer J also stated as follows:[15]

Whether a support is "reasonable" requires a different assessment to whether a support is "necessary". Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO's assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word "reasonable" would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase "reasonable and necessary supports".

7. The Full Court in National Disability Insurance Agency v WRMF[16] also considered the meaning of 'reasonable and necessary' supports, and stated as follows [149]-[151]:

The phrase is a composite phrase. We accept the Agency's submissions that each limb of the phrase should be given work to do. That task is not difficult, or complicated with these two particular words, which are readily understood as conveying different meanings. However, the Parliament has chosen to use a composite phrase rather than to stipulate two distinct requirements, and therefore, as Gleeson CJ cautioned in XYZ v Commonwealth [2006] HCA25; [2006] HCA 25; (2006) 227 CLR 532 at [19], '[t]here are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts'. > > ... Both adjectives qualify the noun "support", but they do so as a composite phrase. It is not fruitful to split them off and consider them separately, just as it is neither fruitful nor appropriate to attempt any exhaustive or authoritative judicial definition of them. > > Nevertheless, there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.

1. The Agency issues Operational Guidelines in relation to what are considered 'reasonable and necessary supports' in a participant's plan. There is no power conferred by the Act to make these Operational Guidelines, and they are issued in an exercise of executive power.[17] The Tribunal is therefore not bound by any policy set out in the Agency's Operational Guidelines. However, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[18], the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[19] where Mortimer J held:[20]

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.

2. Accordingly, unless the Operational Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in a determination of what is a reasonable and necessary support for the Applicant. The Guidelines relevant to this review are the NDIS Operational Guidelines on reasonable and necessary supports.
3. The Rules contained in Part 3 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the 'Supports Rules') must also be applied in assessing if a requested support is reasonable and necessary for the purposes of s 34(1).
4. The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[21]

1. In my reasoning below I ask the question in respect of each of the disputed supports whether the support is not an NDIS Support pursuant to Schedule 2, if it is not excluded as an NDIS Support I ask whether it is an NDIS Support pursuant to Schedule 1, and if it is an NDIS Support I then ask the question whether it is reasonable and necessary for the disputed support to be included in the SOPS of the Applicant.
2. I find for reasons as explained below in that three of the disputed supports, being rental of a storage facility, and participation in a community activity of camping, are not NDIS supports.
3. Below I assess each of the disputed supports.

1. The Applicant says the impairments forming the basis of the s 24-disabilities affect her cognition, mobility, self-care, getting along generally, day-to-day life activities and participation in social dimensions such as community activities.[22]
2. The nature of the impairments of the Applicant for which the disputed supports are sought is reflected in [11]. The Applicant says she cannot manage without the supports; she is anxious and forgetful, she cannot maintain focus, she suffers from lack of sleep, she needs urgent assistance to declutter her house and to get physical exercise and the stress of legal proceedings is overwhelming. She uses medication, but she needs to acquire new strategies to cope with challenges.
3. The medical and allied health practitioners who gave evidence agree with the Applicant in her descriptions of the impairments. For example:

(a) AJ,[23] occupational therapist,[24] says the Applicant would like to pursue studies, but she requires assistance with goal setting, skills training, filing and storage, decluttering of her house, and developing insight into what causes relapses. The Applicant used to be a good cook, but she no longer prepares meals for herself or her children. She requires assistance in a wide range of life areas, such as shopping, exercise, meal preparation, personal hygiene, budgeting, communication, and problem solving. > > (b) KM, psychologist,[25] says the 'stress, cognitive overwhelm, perceived threat, fear, and hypervigilance' experienced by the Applicant combine to inhibit her functional capacity. KM recommends a wide range of supports on the basis that the disabilities of the Applicant are 'extremely complex' and that the impairments arising from her s 24-disabilities are worsened by her social, family, and domestic environment.[26] KM says trauma-treatment is not a form of clinical treatment that is not an NDIS-support.[27] KM then explains what trauma-treatment is likely to involve.[28] KM also says the Applicant's 'overall disability' is equal or higher than 98.1% of her peers and there has been no clinically significant change since her initial assessment on the WHODAS (20.12.22).[29] KM says that in respect of executive function deficits, the Applicant is equal to or worse than 90% of her peers.[30] The assistance the Applicant has received at home with decluttering has had 'limited success'.[31] KM recommends cognitive behaviour therapy (CBT) as a 'proven method for treating hoarding disorder'. > > (c) JDP,[32] occupational therapist, says the Applicant is an 'intelligent woman'[33] who faces 'significant challenges with communication'; lack of organisation, challenges to absorb and maintain information, significant challenges with decision-making, failure maintaining consistent personal health and hygiene, physical difficulties, significant challenges with daily organising, and overall 'extreme limitations' in functionality.[34] JDP also says it is recommended that the Applicant is given funding for meal delivery to encourage healthy living and eating patterns.[35] > > (d) JDP and SM in a joint report[36] provide a detailed overview of the supports proposed to be given to the Applicant. They also give an overview of progress made with the SOPS provided to date. They explain why the disputed supports are required to enhance the work that has been done since the Applicant became a participant. They say in planning areas 1:1 support remains essential. They also emphasise the importance of the 'decluttering project'.[37] They say the kitchen in the house is 'dysfunctional' and hence home delivery meals are essential for the time being. Even after efforts were made to clean the kitchen, it 'remained unsafe for food preparation.'[38] A treating dietitian would assist the Applicant with meal planning and preparation. > > (e) SM,[39] support worker, describes the living circumstances of the Applicant as living 'knee deep' in her belongings, the kitchen not being able to be used due to cluttering and lack of hygiene, and that 'organising and food preparation is not possible'.[40] SM says she has been working with the Applicant for about 5 years. The Applicant has 'unsuccessfully been able to be engaged in the process to improve her living standards and day to day management of her life'.[41] She says the Applicant has 'complex communication barriers'; she is 'resourceful in some situations'; but there are no 'free areas [in the home] for normal activities nor creativity or leisure'.[42] SM says additional skill development is required and that it is particularly important to clean up her house.[43] > > (f) GKT,[44] treating doctor,[45] says the impairment of the Applicant is of a 'degenerative nature', she is on long-term psychiatric medication, and with the help of psychological and psychosocial assistance she is 'starting to stabilize'.[46] GKT says the Applicant experiences panic attacks, her functioning at home is 'poor', her learning ability is severely impacted, she experiences difficulty with self-organising, she needs 'body doubling', and she requires wide-ranging supports.[47] > > (g) JDP,[48] occupational therapist,[49] explains the importance for the Applicant to be funded to achieve her goals; she explains the extensive efforts to sort out her home but those have not been successful.[50] She explains why additional temporary storage space is required, as well as assistance with routine development, exercise physiology, community participation, and 'body doubling'.[51] > > (h) JSD, support coordinator,[52] says the disputed supports are needed because the impairments of the Applicant are worse than had been thought when the application to become a participant was lodged.[53] Funding became depleted due to the intense needs of the Applicant. JSD speaks about the 'severe disability needs' of the Applicant and for those she requires the disputed supports.[54] > > (i) YKC,[55] physiotherapist,[56] says physiotherapy can help the Applicant to address functional difficulties to reach her NDIS goals.[57] He recommends physiotherapy treatment to 'address the physical manifestations of their ADHD and PTSD'.[58] > > (j) HW,[59] dietitian,[60] says that persons with PTSD are at increased risk of developing various secondary health conditions and this is reflective in the dietary intake of the Applicant.[61] A dietitian should be an integral part of the treatment team of the Applicant. HB says that 'mainstream diabetic services' via community health are 'very time-limited, with a free or co-payment likely'.[62]

1. The Goals of the Applicant are to become more organised, to improve her physical and mental health, to engage in meaningful activities, to work towards attending university, to improve emotional regulation, recovery coaching, and improved parenting skills.[63]

1. The Applicant says the disputed supports satisfy the requirements of s 34(1) because her impairments are worse than had been assessed at the time when she became a participant in the Scheme. Several persons have now worked with her, and they have been able to assess with greater clarity what her actual support needs are. The contentions of the Applicant in respect of the specific disputed supports are considered below.
2. The Agency says none of the disputed supports satisfy the requirements of s 34(1). The Agency says the Applicant has not exhausted clinical treatment of the s 24-disabilities, the lack of progress in her functional capacity illustrates that the current SOPS may not be working optimally and the evidence to support the disputed supports is inadequate. The contentions of the Agency in respect of the specific disputed supports are considered below.

1. For the sake of convenience, I will identify by reference to the disputed supports each of the supports sought; whether the disputed support is covered by Schedule 2; if not, whether the disputed support is an NDIS support covered by Schedule 1; and if so, whether the disputed support satisfies the requirements of s 34(1).
2. This assessment of the merit of disputed supports is a highly personalised and fact-intensive process since the disability support needs of the Applicant must be assessed within the context of her s 24-disabilities at the time of my determination. In Minister for Immigration and Citizenship v Li, the individualised nature of this type of administrative decision-making process was described by French J as 'decisional freedom' since the decision-maker must assess, within the context of the statutory framework and the evidence related to the specific person, whether a support falls within s 34(1).[64] I must be positively satisfied about each requirement arising from s 34(1).[65] That satisfaction must be reasonably and rationally formed, not taking into account irrelevant considerations, and taking into account any relevant considerations, but otherwise it is for the decision maker to form the requisite state of satisfaction on the given material.[66]
3. I note that, for the purposes of assessing the necessary supports of the Applicant under s 34(1)(aa), the time at which the disability requirements need to be met is the time when I determine the SOPS for the Applicant. I must therefore make the assessment based on the disability support needs of the Applicant at the time of my decision.
4. In Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852 ('Isherwood'), Colvin J's reasoning below provides the basis on how to approach 'reasonable and necessary support':

[25] However, what is significant when it comes to the interpretation of s 36 in the context of the Act as a whole is to bear in mind that the six criteria are concerned with the extent to which it may be appropriate for a reasonable and necessary support to be funded from the NDIS. They are not concerned with defining the scope of the concept 'reasonable and necessary support.

[29] Therefore, although it is convenient shorthand to refer to the statutory task as being whether a support is 'reasonable and necessary', that terminology is deficient in exposing the precise nature of the deliberative task that is required to be undertaken. Rather, the task of the CEO is to consider as to each support that might be included in the participant's plan: (a) whether it is a reasonable and necessary support; and (b) whether the CEO is affirmatively satisfied as to each of the six criteria in s 34(1) in respect of the support.

1. Importantly, the criteria in s 34(1) 'are not concerned with defining the scope of the concept 'reasonable and necessary support'.'[67] Cumulatively, each of the requested supports are to satisfy the criteria of ss 34(1)(aa)-(f), which means if I find that any one of the criteria in s 34(1) is not met, there is no need to proceed to apply the other criteria.

1. The Applicant says she requires 4 hours per week for personal domestic assistance, specifically for purposes of meal preparation, accompanied appointments, and for assistance during shopping. The Applicant says the current allocation of time is inadequate to meet her needs, that it is necessary for someone to assist her with diet-planning, buying and preparation of food, and guidance in general life challenges. The Applicant says she used to be able to cook for her and her family, but due to her impairments she can no longer bring herself to plan, budget or do independent shopping. There is no food in the house, she and the children buy take-away when they are hungry, their living style is highly unhealthy and lacks routine and she cannot by her own volition bring herself to improve the situation.
2. The Agency says that 20 hours per month is already part of the SOPS and some of those hours could be directed by the Applicant and her support coordinator toward dietary needs and meal preparation. The Agency also says the children of the Applicant, especially the 18-year-old and 17-year-old, can make a greater contribution to the household and to her personal care, meal preparation, and cleaning. This is a standard of family support expected by the community. The oldest child studies at tertiary level, the second eldest is in high school and they can be expected to assist the Applicant.
3. I find that disputed support 1 is not reasonable and necessary as required by s 34(1). The evidence is inadequate to satisfy me that the additional time is necessary to address the needs of the Applicant as required by s 34(1)(aa). Whilst I accept that the Applicant and the support workers could use additional time, I must be satisfied that it is necessary within the meaning of s 34(1)(aa). There is insufficient evidence provided to support how funding for the disputed support will reduce the need for funded supports in the future. There is also limited evidence available to determine if alternate supports or strategies which may be better value for money to address the impairments, have been explored. The Applicant already has 20 hours per month, of which part may be allocated for dietary assistance and meal preparation; her children, especially the 18-year-old and 17-year-old can be expected to assist her with some functions, including shopping and attending appointments; there seems to be a lack of progress in improving the functional capacity of the Applicant and this raises questions about the effectiveness of the current SOPS and if it represents value for money; and the respective support providers, especially those who gave oral evidence, could not explain to my satisfaction why the additional support is needed other than their insistence that more help is reasonable and necessary.
4. I find that disputed support 1 is not necessary to address the needs of the participant as required by s 34(1)(aa).

1. The Applicant say she needs a temporary storage facility as part of her endeavour to declutter her house, store items that could be returned once the house has been deep cleaned and dispose of items that are no longer needed. The Applicant says she already rents a storage unit but that is filled and cannot be used for further decluttering and storage. The Applicant says it is essential for her house to be decluttered and deep cleaned in order for her to return to some level of normality with her family.
2. The Agency says the renting of a storage facility is unlikely to be effective or beneficial to the Applicant since she already has a storage unit. The Agency also says the hoarding is not arising from the s 24-disabilities and hence the storage facility, as well as the time already spent by support workers on decluttering, are not value for money nor a good practice since the underlying causes of hoarding are not being addressed.
3. I find that disputed support 2 is not an NDIS support pursuant to item 12(a) of Schedule 2. I accept the opinion of TD that hoarding and impairments arising from ADHD and PTSD are unlikely to be treated by providing more storage but are rather a conditions that require clinical treatment.[68]
4. Even if the storage facility is an NDIS support, I find that it is not reasonable and necessary as required by s 34(1). The evidence is inadequate to satisfy me that the storage facility is necessary to address the needs of the Applicant as required by s 34(1)(aa). I accept that the Applicant may potentially derive some benefit from an additional storage unit, but the disputed support is not disability specific to the impairments arising from the s 24-disabilities.
5. The 'lack of space' mentioned by SM,[69] does not constitute adequate evidence to satisfy s 34(1)(aa). TD opines that providing additional storage is not a current good practice to align as an effective way to respond to hoarding. I prefer this opinion due to the expertise of TD in this field. The Applicant already has a storage facility for which she pays, but it is completely filled and it has not contributed to her better managing the contents of her house. The Applicant said in evidence that storage may in fact worsen her lack of purchasing self-discipline because if she does not see an item, she buys a new one. The Applicant mentioned multiple t-shirts and pots that she has bought because she could not locate the items already in storage.
6. The evidence is, furthermore, that although the Applicant has had assistance for around 5 years in respect of hoarding and strategies to manage it, her conduct has basically remained unchanged. This factual situation is consistent with the expert opinion of TD that unless the underlying causes of hoarding are addressed, life coaching and additional storage will not be value for money and cannot be regarded as good practice.[70]
7. I also note that although some of the reports and submissions suggest that hoarding disorder has been diagnosed, the s 24-disabilities of the Applicant do not include hoarding. I accept the expert opinion of TD during oral evidence that hoarding is not necessarily associated with PTSD or ADHD and hence the allocation of a substantial portion of SOPS towards decluttering measures may need to be revisited by the Agency, particularly in light of clinical treatment options of the s 24-disabilities.
8. I find that disputed support 2 is not an NDIS support as required by s 34(1)(f), and even if it were, it will not assist the Applicant to pursue her goals as required by s 34(1)(a), it does not represent value for money as required by s 34(1)(c), and it is unlikely to be effective and beneficial for the Applicant having regard to current good practice as required by s 34(1)(d).

1. The Applicant says it is reasonable and necessary to add an additional 4 hours per month to the SOPS for social, civic and community participation. The Applicant says she wants to get out more often, to be part of the community, to attend public events, go to the movies, and she also needs additional assistance to attend appointments.
2. The Agency says the evidence does not adequately demonstrate why the additional hours are required, how the current allocation of 20 hours per month is being used, whether the disputed support will assist the Applicant to pursue her goals, if it is likely to be effective and beneficial having regard to current good practice and why the support cannot be provided by family.
3. I find that disputed support 3 is not reasonable and necessary as required by s 34(1). The evidence before me does not establish to my satisfaction that the existing support of 20 hours per month is inadequate to support the Applicant; the Applicant was vague as to what specific engagement is sought and it appears like a random list of ideas rather than a support that is likely to be effective and beneficial for the Applicant having regard to current good practice. Although the Applicant gave examples of community events she had recently been to, the request for additional time is unsubstantiated by evidence other than what she would like to have extra as recommended by her support workers.
4. I am also not satisfied that the additional 4 hours represents good value for money in that the costs are reasonable, relative to both the benefits and the cost of alternative support, for example assistance by family members or better allocation of the existing 20 hours per month. As I explain in passing below, the support coordinator and services provider could not explain to my satisfaction how priorities are set for the Applicant in respect of her budget and how the effectiveness of support is ascertained. I am left with the strong impression that the principal motivator for support 3 is merely budgetary in nature, rather than being reasonable and necessary as required by s 34(1).
5. I find that disputed support 3 is not necessary to address the needs of the applicant as required by s 34(1)(aa), it does not represent value for money as required by s 34(1)(c) and it does not take adequate account of what is reasonable to expect her family to provide as required by s 34(1)(e).

1. The Applicant says she requires funding to attend a 3-day Getaway camp.[71] The Applicant says attending the camp, valued at $2,853.30, will provide her with respite, help her to achieve her goals of community engagement, assist her with resilience, and help her clear her mind. The Applicant says she found out information about the camp when she was surfing social media and the 'logarithm' caused the advertisement to appear in her searches.
2. The Agency says the rationale for attending the camp is not supported by the evidence, that there is inadequate link between the s 24-disabilities and the purported benefits the camp may offer and that the camp is not necessary to address the impairments of the Applicant.
3. I find that disputed support 4 is not an NDIS support pursuant to item 4(q) of Schedule 2. The camp is best to be considered as a recreational activity.
4. Even if attending the camp is an NDIS support, I find that it is not reasonable and necessary as required by s 34(1). The disputed support is not disability specific to the impairments arising from the s 24-disabilities. The evidence is inadequate to satisfy me that attending the camp is necessary to address the needs of the Applicant as required by s 34(1)(aa). The Applicant was vague about how the camp might assist her to pursue her goals, the evidence was lacking in substance about how the camp can be regarded as a reasonable and necessary support for the Applicant in light of her s 24-disabilities and the detail of the camp was lacking in substance since it was a mere printout of an advertisement the Applicant had obtained via social media.
5. I find that disputed support 4 is not an NDIS Support, and even if it is an NDIS Support, it is not necessary to address the needs of the applicant as required by s 34(1)(aa).

1. The Applicant seeks an additional 6 hours per week of Life Management to the 200 hours in the SOPS. The Applicant says the estimate of supports needed in her SOPS does not accurately reflect her actual needs. She requires support in most if not all aspects of life since the impairments arising from the s 24-disabilities are having a profound impact on her functional capacity. The range of services she requires includes ongoing help with decluttering, managing paperwork, filing, learning life skills, organising her household, having access to life coaching, developing better planning, and having person-on-person support.
2. The Agency says the additional hours sought, which amount to 312 hours per year, is not supported by the evidence before the Tribunal. The Agency says unless the underlying clinical treatment of the Applicant is attended to, additional life management support in its broadest sense is not reasonable and necessary to address the needs of the Applicant as required by s 34(1). The Agency says that substantial support has been provided to the Applicant since she became a participant, but that the effects and benefits of the supports have not been established or measured. Adding additional hours to the current SOPS is not value for money nor necessary to address the impairments of the Applicant.
3. I find that disputed support 5 is not reasonable and necessary as required by s 34(1). Aspects of the disputed support such as life coaching and life management development, are not NDIS Supports pursuant to item 10(c) of Schedule 2.
4. The evidence before me does not establish to my satisfaction that the additional hours are necessary to address the impairments of the Applicant, taking into account her existing SOPS. There is insufficient evidence provided to support how funding for the disputed support will reduce the need for funded supports in the future. There is also inadequate evidence available to determine if alternate supports or strategies, which may be better value for money to address the impairments, have been explored.
5. I note the observation by SM that despite her having assisted the Applicant for around 5 years, the Applicant 'has unsuccessfully been able to engage in the process to improve her living standards and day to day management of her life'.[72] SM confirmed in oral evidence that the photos in HB 85 taken in 2023 still generally represents the current status of the hoarding. This is consistent with the oral evidence of the Applicant that the kitchen is so cluttered it cannot be safely used and she cannot use her bedroom due to clutter.
6. SM and JDP express the opinion in their joint report that 'once the decluttering project has successfully taken place, the home will be 'organised' and won't need to be 'reorganised''.[73] This rather optimistic proposition does not adequately recognise the lack of progress during the past 5 years with decluttering. Note for example the observation by KM on 9 December 2024 that 'overall decluttering efforts within the home have had limited success'.[74]
7. I note that none of the support workers who gave evidence, nor the Applicant, provided up-to-date photos of the inside of the house. From the description of the witnesses the house remains cluttered, a risk for those who live in it and lacks hygiene. It is reasonable to ask, as the Agency does, what beneficial outcome has arisen after several years of SOPS.
8. KM proposes 'trauma informed treatment',[75] but I prefer the oral opinion of TD that the 'key aspects' of trauma informed treatment as identified by KM are vague and formulated as objectives rather than a specific treatment. I accept the opinion of TD that unless the s 24-diabilities of the Applicant are clinically treated, the provision of additional life management support for impairments is not necessary and does not present value for money as required by s 34(1)(c).[76]
9. Although GKT says the Applicant receives psychiatric medication,[77] GKT did not give oral evidence; the report is dated 17 April 2023, and there is no update as to the effectiveness of treatment, adjustments made, or any diagnostic observations. TD also notes that there is no evidence of the Applicant having regular access to psychiatric assessment, review or treatment management.[78]
10. The Applicant has been a participant in the Scheme for a substantial time, but the evidence is consistent that only limited progress has been made to address the impairment needs of the Applicant arising from her s 24-disabilities. I note the oral evidence of the Applicant that it takes a lot of support just to maintain the current state of affairs, but there are few if any measurable objectives or priorities by which effectiveness of the SOPS can be measured. Some temporary progress had been made in respect of decluttering and cleaning the house, but soon after the work is complete, the hoarding will again commence and the Applicant would fail to keep the house to a healthy and clean status.
11. This trend is consistent with the opinion of TD that there are no 'known treatments that are considered effective or highly efficacious in the treatment of hoarding disorder'.[79] It is noticeable that the development and implementation of the SOPS does not involve a treating psychiatrist. TD opines that there is 'exceptionally limited evidence' for psychology to improve ADHD. TD opines, and I accept, that decluttering and some of the other services in the SOPS principally address secondary issues rather than the primary clinical treatment by way of medication. I accept the opinion of TD that several of the supports sought by the Applicant may be mitigated or even removed after improved clinical treatment of the s 24-disabilities.
12. Although I accept that the intentions of the support providers have been to assist the Applicant to achieve her goals, I agree with the Agency that there appears to have been confusion or overlap of roles between the respective support providers, there have not been clearly established priorities in the context of the approved SOPS and budget limits and the focus on decluttering may not be consistent with what is likely to be effective and beneficial clinical treatment of the s 24-disabilities.
13. I find that disputed support 5 is not necessary to address the impairments of the applicant as required by s 34(1)(aa).

1. The Applicant says the support required for exercise physiology and physiotherapy is reasonable and necessary considering her lack of physical exercise, the weakness of her body, the lack of scope of movement inside her house, and the well-established causal link between exercise and improved mental health.
2. The Agency says the disputed support is not reasonable and necessary since the clinical treatment for the s 24-disabilities has not been adequately pursued; the disputed support is not likely to be effective and beneficial for impairments arising from the s 24-diabilities having regard to good practice as required by s 34(1)(d), and the disputed support does not represent value for money as envisaged in s 34(1)(c).
3. I find that disputed support 6 is not an NDIS support pursuant to item 4(q) of Schedule 2. There is inadequate evidence to distinguish the support sought by the Applicant, from 'general health, fitness, social or recreational activity costs or services'. Although generally it is not controversial to say that healthy exercise can contribute to improved mental health, the evidence does not support the proposition that this is a support specifically of good value or current good practice for impairments arising from the s 24-disabilities.
4. I note the Applicant has already bought gym equipment, but she says it remains unutilised in the garage and she could not explain what she had bought. The Applicant also says that she is not good at following and applying advice. I accept the opinion of TD that the evidence to link exercise as a treatment for ADHD or PTSD is 'weak' and 'not clinically good practice'.
5. Even if the disputed support is a NDIS support, I find that it is not reasonable and necessary as required by s 34(1). The evidence is inadequate to satisfy me that the disputed support is necessary to address the impairments arising from the s 24-disabilities of the Applicant as required by s 34(1)(aa). Whilst the Applicant may be experiencing 'increasing physical discomfort',[80] KM fails to draw the causal link between the disputed support, the impairments, and the s 24-disabilities. The same can be said of the evidence of JDP about the lack of exercise of the Applicant and her 'joint instability'.[81]
6. Whilst I note the assessment of YKC,[82] I also note the observation that 'we will not be able to address her ADHD and PTSD directly'.[83] YKC then speaks about the 'physical manifestations of their ADHD and PTSD'[84] without explaining which of the physical manifestations of the Applicant are unique or directly related only to her s 24-disabilities.
7. I accept the opinion of TD that exercise for improved mental health as a general proposition is good, but that there is inadequate evidence to establish a scientifically based association between exercise physiology and physiotherapy with the treatment of impairments arising from the s 24-disabilities. In this respect I prefer the opinion of TD in his criticism of the opinion of JDP[85] to the effect that exercise physiology is a current good practice to treat executive disfunction. The disputed support is not disability specific to the impairments arising from the s 24-disabilities. The evidence is inadequate to find to my satisfaction that the disputed support is necessary to address needs of the Applicant arising from s 24-disabilities.
8. I find that disputed support 6 is not an NDIS Support, and even if it is an NDIS Support, it is not necessary to address the impairments of the applicant as required by s 34(1)(aa), it is not current good practice as required by s 34(1)(d) and it does not represent value for money as required by s 34(1)(c).

1. The Applicant says she needs the advice, assistance and support of a dietitian to improve her well-being, her planning and preparation of meals, her nutrition, and her health in general. The Applicant says she used to enjoy cooking but due to her s 24-disabilities she no longer has the energy, motivation, or focus to shop, prepare meals, or budget. The Applicant says this disputed support is holistically reasonable and necessary as part of the SOPS.
2. The Agency says the evidence does not establish that the disputed support is reasonable and necessary. The Agency says there is inadequate evidence to demonstrate that the disputed support is likely to be effective and beneficial for the Applicant having regard to current good practice; that it is necessary; and that it adequately takes account of what is reasonable to expect families to provide.
3. I find that disputed support 7 is not reasonable and necessary as required by s 34(1). The disputed support is not disability specific to the impairments arising from the s 24-disabilities. JDP says the Applicant is reliant on pre-made meals and the Applicant confirmed in her evidence that she buys take-way when she is hungry, but evidence is inadequate to establish a linkage between her poor dieting and the impairments arising from the s 24-disabilities.
4. JSD accepts that access to community and public dietitian advice and guidance have not been fully explored and exhausted and there is no measurable outcome of any advice received.[86] The Applicant says that the support workers have not developed a menu plan for her, but she also acknowledges that food that had been prepared had been left in the fridge. There remains, in my assessment, community-based services that have not been fully explored.
5. HW speaks about the need for dietetic services,[87] but without providing any expert opinion or evidence about how diet and the impairments arising from the s 24-disabilities are connected. The evidence is inadequate to satisfy me that the disputed support is necessary to address the impairments of the Applicant as required by s 34(1)(aa), that is it likely to be effective and beneficial for the Applicant having regard to current good practice as required by s 34(1)(d) and that the request adequately takes account of what is reasonable to expect families and the community to provide by way of support.
6. I prefer the opinion of TD that until the clinical treatment of the s 24-disabilities is more fully explored, the disputed support is not necessary.[88] I note that the Applicant has previously been cooking for her family, that she then understood the importance of planning, preparation and diet, and that she is adequately literate to undertake reading or attend community courses about sound dietary principles. I also note that previously the Applicant's daughter had assisted her with meal preparation.[89] The Applicant has not yet fully explored community dietary advice, one of the reasons being that she may be required to pay for it. Having to make a personal contribution for dietary services is not an adequate reason for the support to be included in the SOPS as being necessary.
7. I am also not satisfied that the disputed support is likely to be effective and beneficial to the Applicant having regard to current good practice. TD's oral opinion, which I accept, is that there is little if any evidence of diet impacting on the impairments arising from the s 24-disabilities.
8. Finally, I am not satisfied that the two oldest children of the Applicant cannot be expected to assist the Applicant in planning, shopping, meal preparation, and doing research and setting of dietary priorities.
9. I find that disputed support 7 is not necessary to address the needs of the applicant as required by s 34(1)(aa); it is not value for money as required by s 34(1)(c); it is not likely to be effective and beneficial having regard to good practice as required by s 34(1)(d); and it does not adequately take into account what is reasonable to expect the two oldest children of the Applicant as well as community services to provide as required by s 34(1)(e).

1. The Agency expressed concerns during closing submissions about aspects of the management of the SOPS. Although the merit of those concerns is not for me to determine, the Agency indicated that it may conduct a review of the current SOPS and its appropriateness to address the impairments caused by the s 24-disabilities. TD adopted a firm opinion that aspects of the current SOPS are not reasonable and necessary in light of further clinical treatment that can be explored.[90] During oral evidence TD went so far as to opine that until appropriate clinical treatment is given to the Applicant, there cannot be any realistic assessment of her support needs.
2. I also raised questions during the hearing about what appeared to me as a potential lack of clear demarcation of functions by the respective service providers and what appeared to be an absence of priorities considering the needs of the Applicant and her limited budget. For example, the Applicant submitted a quotation from Queens of Clutter, a company that appears to specialise in cleaning of clutter and hoarding, for $25,563.72.[91] On closer examination it appeared that the Applicant had not sought the quotation, she could not recall anyone from Queens of Clutter visiting her house before submitting the quotation, and the proposed services related to 'Assist with Self Care Activities'. There was no breakdown of services to be rendered, how those services differ from what is already provided by other service providers or whether the company has the capacity to deliver those services. This quotation highlights how vulnerable the Applicant is in her relationship with her service providers, whereby she accepted in good faith and uncritically the quotation sought by one of her service providers and submitted it without question to the Tribunal for funding as part of the disputed supports.
3. I agree with the concern expressed by the Agency that in oral evidence there appeared to be a lack of clearly demarcated roles of the respective service providers. What concerned me particularly was what seems to be an absence of priority setting within the context of the SOPS. The reports by the service providers seem to place the emphasis almost exclusively on the funding of additional supports, rather than critically asking if the current SOPS is working in the best interest of the Applicant. For example, SM gave a list of supports she provides to the Applicant,[92] but when I asked her how she determines priorities she was unable to give a clear and coherent reply other than to say the team sets priorities. Whilst I accept that it is very challenging to provide services to the Applicant due to her intense needs, the absence of priorities informed by budget and impairments arising from s 24-disabilities were apparent throughout the hearing.
4. I also note that the assessment provided by KM of the Applicant having 'total disability based on aggregate of all areas' pursuant to WHODAS 2.0,[93] is not in my view consistent with the oral evidence before me. For example, the Applicant wants to study at university, she has a driver's licence, she undertakes internet-based research, she actively and coherently participated in a 3-day hearing, she has 'good insight into her difficulties',[94] and she repeatedly during the hearing demonstrated insight into her impairments. Whilst her executive functioning is severely impaired according to TD, her disability is unlikely to be as severe as suggested by KM. Similar criticism can be directed at the report of JDP who assesses the Applicant as extremely limited in understanding and communicating (91.67%) and extremely limited in self-care, life activities and participation in society (100%).[95] JDP did not give oral evidence to explain the methodology that gave rise to her assessment of the Applicant, but I do not accept that the Applicant, who has a driver's licence, who does shopping, who prepared for and participated actively in the hearing and who responded to all questions in a coherent way, can be assessed at the level of 100% limitation as suggested by JDP.
5. My concern arising from the criticism above, is that the SOPS of the Applicant and the disputed supports now sought by the Applicant in this proceeding, are based on what I would suggest are highly contentious historical assessments. Added thereto, the only two persons, other than the Applicant, who gave evidence have a direct interest in the outcome of this proceeding since they are likely to benefit from funding of at least disputed supports 1, 3, and 5.
6. Finally, TD expressed concern about there being 'little to no evidence' to distinguish between the severity of the impairments arising from the s 24-disabilities and other health conditions of the Applicant.[96] Since there is no measurement of PTSD and its various symptoms, the impact of PTSD is derived solely from descriptions. Similarly, TD is critical that there are 'no measurements of the intensity, frequency or severity of ADHD symptoms'. Although TD accepts that the executive functioning of the Applicant is severely impaired, the question is what type of services should be included in the SOPS. The repeated efforts to declutter with limited if any success causes TD to question whether the support is reasonable and necessary without clinical treatment of the Applicant's s 24-disabilities. In TD's opinion, the 'primary treatment' for executive disfunction ought to be 'medication'.[97] If this opinion is correct, the entire SOPS may need to be revisited, not only the disputed supports.

1. In summary, I find that the disputed supports do not satisfy the requirements of s 34(1) and the Reviewable Decision should therefore be affirmed.

*** The Tribunal affirms the Reviewable Decision, pursuant to section 105(c)(ii) of the Administrative Review Tribunal Act 2025 (Cth).**

[1] All details in respect of the name of the Applicant, her city of residence, and her treating health and other allied practitioners have been anonymised for safety of the Applicant.

[2] HB p14. KM, psychologist, says the Applicant is also diagnosed with Hoarding Disorder, Major Depressive Disorder, and General Anxiety Disorder with a potential diagnosis of Autism Spectrum Disorder. HB p32. These have not been accepted as giving access to the Applicant to the Scheme. TD says although hoarding disorder is a distinct diagnosis, hoarding may overlap with other health conditions such as ADHD or PTSD, but without being a specific impairment arising from ADHD or PTSD.

[13] Documents in HB pp 318, 328, 336, 367.

[14] McGarrigle v National Disability Insurance Agency [2017] FCA 308 ('McGarrigle').

[16] National Disability Insurance Agency v WRMF [2020] FCAFC 79 ('WRMF').

[17] Minister for Home Affairs v G [2019] FCAFC 79, [18].

[18] [1979] AATA 179 (1979); 2 ALD 634.

[19] [2018] FCA 1229.

[21] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, [635]. Under Rule 7 of the Miscellaneous Transitional Rules, a decision-maker must also be satisfied the support is most appropriately funded or provided through the NDIS, and not more appropriately funded or provided through other general systems of service delivery or support services.

[64] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, [143].

[65] See for example Hill and National Disability Insurance Agency [2023] AATA 3626, [85] - [86].