DZQW and National Disability Insurance Agency (NDIS) [2025] ARTA 1543 | Case summary

DZQW and National Disability Insurance Agency (NDIS) [2025] ARTA 1543 | Case summary | Zoe

[38]

As part of the review process, the Tribunal was provided by the Respondent with those documents previously submitted as part of the original application process (the T Documents). Of potential relevance to this decision are the following reports:
- Report from Danni Bodycott (Occupational Therapist, HB Rehab) dated 27 June 2022.
- Support Letter from Cassandra Barrett (Psychologist) dated 28 July 2022.
- Report from Michael Broadbent (Physiotherapist) dated 9 August 2022.
- Letter from Cass Worpell (Psychologist) dated 10 August 2022.
- Conditional offer of SDA from Insitu Housing dated 6 September 2022.
- Supporting evidence form - Home and Living dated 21 November 2022.
- Home and Living decision letter dated 4 January 2023.
- Letter from Dr Milton Sales (GP) dated 11 January 2023.
- Report from Steph Sillet (OT) dated 30 January 2023.
- Carer Impact Statement from DZQW's mother (undated).
- Support letter from Georgia Inglis Support Coordinator (undated).
- Letter from Maddison Berry Advocate (undated).
After DZQW filed her application, she submitted the following additional evidence:
- Email dated 26 June 2023 providing update on the requested supports.
- Epilepsy Management Plan dated 20 February 2023.
- DZQW's Statement of Lived Experience dated 17 August 2023.
- Report from Laura Neely (OT) dated 21 August 2023.
- Email dated 16 October 2023 from DZQW confirming she was nor consenting to independent OT assessment.
- Response to request for further information on SDA from Dr Milton Sales dated 27 November 2023.
- Response to request for further information letter from Ms Neely dated November 2023.
- Letter of support from DZQW's mother dated 26 November 2023.
- Letter of support from Cass Worpel, Psychologist dated 28 November 2023.
- Epilepsy Smart Australia Epilepsy Management Plan dated 28 February 2024.
- Aruma On-Site shared support plan submitted 27 March 2024.
- John Hunter Hospital Response to targeted questions dated 27 March 2024.
- Applicant's Statement of Evidence dated 29 April 2024.
- Record of Seizures October 2023 - April 2024 submitted 2 May 2024.
- Dr Chris Wellard response to targeted questions dated 8 May 2024.
- Letter from Dr Natalia Murray (Neurologist) dated 12 September 2024.
- Response to targeted questions from Dr Murray dated 11 October 2024.
- Assistive Technology Report of Ms Lily Miller dated 27 September 2024.
- Epilepsy Management Plan dated 18 February 2025.
- Aruma On-Site shared support inclusions.
- NDIS epilepsy supports dated 23 February 2025.
- Epilepsy Queensland (Sudden Unexpected Death in Epilepsy) dated February 2023.
- Mula et al Psychiatric Comorbidities in People with Epilepsy.
- Table of informal supports dated 7 April 2025.
- Letter from Dr Milton Sales dated 12 May 2025.
- Disability Related Health Supports dated 2 June 2025.

[98]

DZQW provided a written response to a series of targeted questions from the Agency. These responses are lengthy and detailed, so I do not propose to record them as written.
However, I note that the responses to the Agency's questions cover the following topics:
- Her recent steps to acquire accommodation through the public housing system.
- Reasons why social housing is not anticipated to be accessible for her.
- What assistive technology that assists with seizures have been explored.
DZQW provided a detailed cost comparison between the anticipated cost of SDA and the provision of supports if she was living in social housing and noted that SDA would be significantly cheaper than that alternative and therefore represented value for money.
Further targeted questions were provided to DZQW's Neurologist, Dr Natalia Murray, who provided her response in a letter dated 11 October 2024.
As with DZQW's responses, Dr Murray's are also lengthy and detailed.
However, in summary, Dr Murray advised as follows (answers in italics):
- Triggers for seizure activity: stress, sleep deprivation, heat, but not all seizures have predictable triggers.
- Frequency of seizure activity: First episode 2013, second episode 2019 EEG evidence of nocturnal seizures in 2021 Ongoing seizures: 2-3 per month currently.
- Timing of seizures: primarily overnight.
- Types of seizures: convulsions/epileptic seizures of generalised nature.
- How do seizures present: Rhythmic movements, tongue biting, incontinence, abnormal posturing.
- Alignment of Applicant's description of seizure activity with clinical observations: yes - amnestic to episodes.
- Physical and psychological impacts of seizures: Incontinence. 24-hour postdrome of grogginess, fatigue, cognitive changes, muscle discomfort and difficulty walking. DZQW also has a significant mental health disorder and physical limitations affected by presence of uncontrolled seizures.
- Underlying cause of seizure activity: Idiopathic. EEG data supports a generalised epilepsy.
- Summary of Seizure Management Plan: Safety management during a seizure, avoid activities in which harm would occur in the event of seizure [swimming, bathing alone, driving].
- Have rescue medications been prescribed: No rescue medications - all seizures have self-terminated within minutes.
- Approach/recommendations for best practice for a seizure management plan: Recovery position, remove dangerous objects, stay by patient's side, call ambulance if >5 minutes, check for injuries.
- Whether the Applicant's epilepsy has worsened over the last 12 months: Dose limiting effects of antiseizure medications, adverse reactions to most of the commonly prescribed anti-seizure medications.
- Has the Applicant's gait and balance worsened, due to her epilepsy, over the last year, and whether this has affected her capacity to transfer and mobilise safely indoors and outdoors: Gait is compromised by prostheses in the setting of congenital talipes with multiple orthopaedic procedures, habitus and incoodination in the post ictal setting.
- Applicant's treatment history:

[109]

With respect to her request for 23 hours 1:1 support, the issue is whether that support is reasonable and necessary as required under s 34(1) and the Access Rules.
In relation to DZQW's request for funding of SDA, the Agency contended that:
- DZQW did not meet the requirement under Rule 11 of the SDA Rules, namely, that she has an extremely reduced functional capacity or has a very high need for person-to-person supports in undertaking the activity even with assistive technology, equipment or home modifications.
- Even if she did meet the criteria in Rule 11, the Agency contended that she did not meet the reasonable and necessary criteria in s 34(1).
In particular, the available evidence did not establish:
- the requested support represents value for money in that the cost of the support is reasonable, relative to both the benefits achieved and the cost of alternative support, as required by s 34(1)(c) of the Act.
- there are comparable supports which would achieve the same outcome at a substantially lower cost: r 3.1 of the Support Rules.
- the current evidence of the Applicant's functional capacity does indicate the provision of SDA is not likely to be effective and beneficial where the Applicant demonstrates a significant level of functional independence in activities of daily living, as required by s 34 (1)(d) of the Act.
- the provision of SDA for the Applicant who does not satisfy the SDA eligibility under the rule 11 of the SDA is not NDIS support, as required by s 34 (1)(f) of the Act.
- the Respondent is not responsible for the provision of accommodation for people in need of housing assistance (i.e. routine tenancy support and ensuring appropriate housing is provided for people with disability) or homelessness-specific services, including homelessness prevention and outreach, or access to temporary or long-term housing for participants who are homeless or at risk of homelessness: r 7.20 of the Support Rules.
If the Tribunal was to find that the requested SDA met the section 34(1) criteria, the appropriate level and type of SDA would be:
- Building type: shared living (not sole occupancy) in an apartment, villa, duplex or townhouse for 2 or 3 SDA eligible residents.
- Design Standard: Improved Liveability (not Fully Accessible).
- Onsite overnight assistance: No.
With respect to Rule 12 of the SDA Rules, one of the eligibility criteria is that an applicant must have extremely reduced functional capacity in the domain of mobility, self-care or self-management and have a very high need for person-to-person supports in undertaking activities even with assistive technology, equipment or home modifications.
In this regard DZQW's primary functional impairment is mobility.
The Agency contended, based on the evidence, that DZQW's level of impairment is well below the 'extreme' range. Her level of impairment in mobility and self-care cannot meet the definition of 'extreme' if her need for person-to-person supports is not very high once she uses appropriate assistance technology.
It contended that with suitable assistive technology in a single-level home and being provided with assistance with activities of daily living and community participation, her need for person-to-person supports would significantly decrease.
It also contended that the available evidence did not suggest that DZQW has extremely reduced functional capacity in the areas of self-care and self-management and therefore does not have an extremely reduced functional capacity.
The Agency then addressed the Rule 13 criteria, namely, whether an applicant has very high support needs as this is a separate pathway to being eligible for SDA.
Rule 13(1)(b) sets out the eligibility criteria which requires that an applicant:

[139]

The Agency submitted that if the Tribunal was to find that DZQW is eligible for SDA, the next step is for the Tribunal to determine whether the following categories are reasonable and necessary and whether SDA should be provided as an in-kind support:
- SDA building type.
- SDA design category, and
- SDA location
The Agency submitted that in determining the appropriate SDA building type, the Tribunal must give consideration to the following factors set out in Rule 16 of the SDA rules, namely:
1. the participant's preference;
2. features of a building type in relation to needs;
3. the appropriate support model;
4. the participant's support needs; and
5. whether the building type represents value for money.
The Agency stated that it understood that DZQW seeks funding for a 1-resident 2-bedroom apartment because she feels that she 'should not have to live with anyone ... [and] group living creates more anxiety'. However, the Respondent contends there is insufficient evidence to support a finding that the Applicant's support needs require her to live by herself. Having regard to the Applicant's lower-level support needs, the Respondent stated that a shared model of SDA within a villa, duplex or townhouse represents value for money in comparison to other building types.
Pursuant to rule 17 of the SDA Rules, to determine the design category that is appropriate to support an eligible participant, the CEO must have regard to the specific needs of the eligible participant.
The Respondent contends the Applicant does not have a significant physical impairment necessitating the provision of fully accessible SDA design category. An improved liveability design category would provide the Applicant with the level of physical access she requires to mobilise with her four-wheeled walker or wheelchair, while meeting the "value for money" criteria in s 34(1)(c).
In relation to DZQW's request for the provision of 23 hours per week 1:1 support worker support, the Agency stated that DZQW has the following existing funding in her current plan:
- $49,609.30 for 12 hours support worker assistance per week with activities of daily living.
- $64,656.80 for 20 hours support worker assistance per week for community access; and
- $1,784.00 for level one transport.
The Agency noted that DZQW's OT recommends support be provided via a concierge model in the case of an emergency or some other unplanned support. It noted that that model cannot necessarily provide for immediately available support as this is only available in a Supported Independent Living (SIL) model where housing and supports are shared.
The Agency submitted that there is insufficient evidence that the requested support represents value for money in that the costs of the support are reasonable to both the benefits achieved and the costs of alternative support, as required by s 34(1)(c) of the Act.
It further submitted that there is also insufficient evidence that the requested support will be, or is likely to be, effective and beneficial for the Applicant, having regard to current good practice, as required by s 34(1)(d) of the Act.
Having regard to the above, the Respondent's position is that the following level of funding represents the reasonable and necessary level of support:

[249]

After addressing a number of preliminary administrative matters, DZQW provided an affirmation concerning the evidence she would give and began answering questions from Ms Robinson.
In terms of her capacities in her home on a 'normal day' DZQW said:
- She can stand briefly, reach above her head, and mobilise using her walker where appropriate indoors although she prefers to use her powered wheelchair. Her walker does not fit in her bedroom or the kitchen.
- When she is unable to use her walker, she can mobilise while holding on to furniture.
- She can do transfers from her bed to standing and vice versa. She can get on and off the toilet using her hands to push off the toilet seat.
- She has had a number of falls, including a fall in her bedroom about two months ago.
- She can pick up small items and clothes and place them on her walker.
- In terms of transport, she is unable to drive due to her history of seizures. She can get in and out of cars with assistance and uses assistive taxis.
- While in the community, she will use her powered wheelchair where possible but noted that wheelchair does not fit in a normal car. She will use her powered wheelchair when using an assistive taxi.
- She said that even with a disability subsidy, using assistive taxis is still expensive. They are also unreliable and, on some occasions, have not turned up after being booked.
- She has commenced a university bridging course. She attends the university campus on two days each week and can use an accessible bus to get there. She can do this without assistance. She has also used a bus to go to other locations.
- She attends a creative writing course twice a week, and also writes in her own time either in her bedroom or in the kitchen.
- She needs some assistance with managing her medications and her mother assists with this.
- She can manage her self-care and some online shopping for groceries and clothes.
- She can manage her self-management in some simpler things but also needs some help as she sometimes has trouble with processing information.
- She can do minor cleaning such as wiping benches or rinsing plates in the sink.
- She can communicate with others and use the phone or social media.
- She can manage her own banking but needed help setting up direct debits for payments of her regular bills.
- She also attends a creative writing course, and her support worker will drive her there. Her support worker also provides transport to get to her medical appointments.
- She provided an outline of her daily activities, including getting out of bed, having breakfast, what she does during the day and her nighttime routine, and stated that she can largely do this independently.
- Her mother assists her by preparing meals, doing the cleaning and laundry, helping her get in and out of the house, providing reminders and helping her prepare to go out, and monitoring her at night, including by responding to any seizure alarms which are linked to her mother's phone.
- She has two sisters who do visit from time to time. They both have children and are busy with their own lives.
In terms of her capabilities after she experiences a seizure, DZQW she said:
- On the morning after experiencing a nighttime seizure, she has little ability to communicate.
- She usually doesn't wake herself and will wake up when her mother comes in to check on her morning medication.
- She will usually remain in bed throughout the day and her mother will assist her to get to and from the toilet including getting on and off the toilet.
- She will usually remain lying down in bed, and her mother will assist her to sit up to eat or take medications, however, she generally does not have much appetite after a seizure.
- Her mother will also remain close by in the next room in order to keep an eye on her.
- When asked about how she is in the following days, DZQW stated that the aftereffects usually last two to three days.
- She would generally have a full night's sleep the night after a seizure, and while this does help, she continues to find it difficult to communicate and experiences extreme pain and has cognitive problems including not knowing where she is.
- Her difficulties with communication may start to improve after the morning, however, this can vary. She found it difficult to specify how often that was the case. She may be able to communicate online on the second day but generally she is focused on her recovery.
- She generally can mobilise herself on the second day but that is not always the case. She may be able to get to the kitchen or loungeroom with her mother's assistance.
- She will not generally get dressed on the first or second day.
When asked about her history of having falls, she said:
- She has had a number of falls in that time, totalling about 5 in the past 5 years.
- In 2020, she had a serious fall that required an ambulance to be called, and she was taken to the John Hunter Hospital.
- There was a later fall when she slipped on something near the dining table, and she needed assistance to get up.
- She has had some near falls where she might fall onto or into furniture, such as recently when she fell onto her bed.
When asked about her history of seizures, DZQW said:
- Her first seizure was in 2014, with a second and third in 2019. She recalled that the first seizure took place when some of her medication doses were being reduced. She was not sure where that second seizure took place, noting that it could have been when she was an inpatient in hospital.
- There was a further seizure in November 2020 and an ambulance attended on that occasion. The paramedics were able to stabilise and monitor her and they determined that she did not need to be hospitalised.
- There was a further seizure a year later in November 2021. Her mother was concerned that she may have been cognitively affected and she was later admitted to a private hospital.
- Since then, she has had some further nocturnal seizures in 2023. While her neurologist considered these were tonic/clonic seizures these were relatively short in duration however an EEG would need to be used to properly classify them.
- Her most recent seizure happened on 18 May according to the alarm data.
- She said that according to the alarm data, she has anywhere between 1 and 6 seizures each month, with 2 to 4 being the most likely frequency. The seizure alarm is trigged by 20 seconds of seizure activity, however sometimes a seizure will end before 20 seconds in which case the alarm would not be triggered. She said that while she may not need assistance after a short seizure, it would still place her at risk of death. The main risk of death would be is she did have a seizure, and no one came to support her.
- The best way to mitigate the risk of her having a seizure was to have someone to provide overnight support and be available to address any potential harm. Her neurologist has recommended that she have this support.
- When asked as to what may act as a trigger for a seizure, DZQW said that stress was a significant factor.
- She agreed with the statement in her mother's carer statement that she is no longer having convulsions while having a seizure.
- When asked if she thought that having a seizure alarm directed to emergency services, DZQW said that would be reliant upon her ability to communicate with emergency services. Further to this, her neurologist has advised that it would not be adequate as it was not possible to ensure an immediate response.
When asked about her psychosocial conditions, she said:
- She does not take regular medication for these, however, considers her conditions are well managed. She said she did not consider her psychosocial conditions to require immediate assistance but did not discount she may need greater assistance in the future.
- She is aware of the early signs her mental health may be deteriorating, including low mood, suicidal ideation and feeling agitated. She said that those around her would also notice such changes and if she was aware of such signs, she would seek medical help.
Responding to questions concerning her mother's informal care for her and the impact this has had on her DZQW said:
- That the burden on her mother was one of the reasons she applied for SDA.
- Her mother has been caring for her all her life even when she was not living with her. When she was living independently, her mother would regularly drive about half an hour to visit her and would regularly call her.
- If she was granted SDA her mother would still support her, although that would be more emotional support rather than the overnight support she provides currently. She believed her mother would visit her if she had her own supported housing, although not on a daily basis, given her own health issues.
- When asked about her levels of support worker funding DZQW, she acknowledged that had increased however she was not utilising all her support worker hours when her sister was living with them.
- She was not sure if she was not using all the support worker hours allocated for domestic assistance.
Ms Roberts for the Agency asked DZQW about the SDA property she was seeking, what she considers are its potential benefits and alternative housing options. In response, DZQW said:
- She was unsure how many apartments were in that complex.
- When asked about the on-site support worker, she said this support was available for all the residents. In her case she needed that worker's assistance if she were to have a seizure.
- When asked about a scenario where the on-site support worker was busy if she experiences a seizure, she agreed this could happen but also noted that the support in the complex was based on a triage system.
- Ms Roberts referred her to page 11 of the SDA Operating Guidelines which stated that a participant may have to wait up to 60 minutes for unplanned NDIS support,[8] and asked whether she agreed that would be the case. DZQW agreed that was what the guidelines stated but again said that support worker assistance in the proposed complex was provided on a triage basis.
- DZQW has been advised that if she was on a waiting list for social or community housing it would be unlikely that a property that met her needs was unlikely to become available. She has been advised that she cannot get on the wait list if she has a current application for SDA.
- When asked about her risk of sudden unexpected death in epilepsy as outlined in the fact sheet at JTB 23,[9] DZQW acknowledged that risk would remain regardless of where she is living, however, she will continue to use the seizure alarm and follow her epilepsy management plan.
- When asked about her pain levels due to her physical conditions, she said there were days where she found it difficult to get out of bed.
- She disagreed that if she was in such a state, it would not matter where she lived. If she was in SDA, she would be able to use her motorised wheelchair in the property and could manage to transfer either independently or with concierge assistance from the bed to the wheelchair even if she was in pain.
- While SDA would itself not resolve the pain, she would have greater mobility in a SDA property. She considers that even if experiencing pain, she could communicate with others either online or by phone.
- When asked whether she thought continuing to use her walker helps her maintain her strength, she agreed and noted that she would have the option in SDA to either use the walker if the motorised wheelchair.

[250]

After providing a summary of her qualifications and experience, providing an outline of her methodology of conducting the assessment, and confirming that her report was correct, Ms Harper answered a series of questions from Ms Robinson and DZQW.
Ms Harper provided an outline of the principles she used in assessing a person's capacity to mobilise in their home environment.
She said she observed DZQW mobilise either independently or using her walker and her motorised wheelchair and did this in her bedroom, the bathroom and other rooms in the home. She considered that she did mobilise competently and safely.
She considered that DZQW using her walker would be sufficient for her to mobilise in her own home rather than become overly reliant on the motorised wheelchair as this would maximise her independence and avoid becoming overly reliant on the wheelchair.
In terms of the effect of DZQW's psychosocial conditions affecting her functional capacity, she noted that periods of low mood and higher anxiety could lead to a decline in her self-care and potentially result in her becoming socially withdrawn.
She considered that her risk of falls was relatively low.
Ms Harper was asked by Ms Robinson about her recommendations for additional support needs.[10] She acknowledged that DZQW was at risk of seizures overnight and assumed there was informal support to meet that need.
Turning to DZQW's request for SDA funding she noted she was aware of the criteria such as extreme reduction in functional capacity or high support needs and said that SDA may be appropriate if modifications of an existing property may not be suitable or value for money.
She said that although her expertise was in conducting functional capacity assessments, she had some experience in preparing SDA assessment reports.
Asked about the need for overnight concierge support, Ms Harper deferred to the opinion of DZQW's neurologist.
She understood that DZQW's seizures varied, and it would be difficult to schedule supports as the seizures were not predictable and this need was currently being met by her mother.
Ms Harper acknowledged that she had assessed DZQW on an average day and had not had the opportunity to assess her when her capacity was reduced but noted she had addressed this in part 3.2 of her report.[11]
She also acknowledged that since she had prepared her report, DZQW's mother's doctor had provided a report addressing her reduced capacity to provide such informal support to DZQW.

[252]

DZQW said that she has provided extensive expert evidence addressing her level of functional capacity.
She said that in terms of her eligibility for SDA, she is relying on Rule 13 in that she has very high support need for person to person supports immediately available.
She submitted she needs a very high level of support and has provided evidence that is required to be provided immediately and for a significant part of the day, namely overnights.
Her current informal supports are at risk due to her mother's deteriorating health and her mother is unable to continue providing this level of support.
Addressing Ms Harper's report, she submitted that this had taken place on a good day and that Ms Harper had not assessed her on a bad day. The Agency has not provided any other evidence.
Ms Sillett, who is an Occupational Therapist, provided a detailed SDA assessment report which addressed why SDA was required,[12] the choice of category,[13] and the building type required.[14]
Her neurologist Dr Natalia Murray has provided evidence of her history of seizures. Additionally, the risks arising in the absence of person-to-person support are addressed in her current Epilepsy Management Plan. Dr Murray, in her report dated 23 August 2024 outlined those risks, the need for such supports and expressed her support for DZQW being approved for SDA.[15]
She submitted that it was irrelevant when she last had a tonic/clonic seizure, and that Dr Murray's recommendations apply regardless of the type of seizure she experiences or their frequency.
Similarly, she requires person to person support after a seizure regardless of what type the seizure was. The person provided support could monitor DZQW's condition, provide first aid and call an ambulance if required. Having a person with her would reduce the risk of SUDEP and Dr Murray confirmed in the latest EDP the risk of SUDEP was higher if she did not have overnight support.
Dr Murray had indicated that there was not a reliable predictor when seizures may occur, and the seizure alarm is not a viable replacement for having a support person with her. Dr Murray was unable to answer who would provide support if she was living independently.
Having access solely to the seizure alarm would not be satisfactory, as it is the support provided afterwards that is critical. The supports indicated after a seizure, as outlined in the Epilepsy Management Plan,[16] cannot be provided by emergency services. The SDA provider can provide this support.[17]
Ms Neely in her report stated that having an alarm linked to emergency services would not be beneficial, as DZQW would not be alert and oriented and able to talk to a responder.[18]
In terms of this support, she requires assistance with pain management, monitoring her medications, helping her to sit up and lie down, mobilising or go to the toilet or providing food and fluids
In terms of her current living arrangements at her mother's home, DZQW's psychologist, Cassandra Barrett, indicated that these have proven more difficult and there is a risk of a breakdown in family relationships.[19]
Ms Miller, in her SDA assessment report, identified that DZQW is at risk of becoming extremely socially isolated due to her limited ability to access the community and being bound to one area of her mother's home.[20] DZQW said this could be remedied in the SDA as she could have friends visit her there.
DZQW submitted that social housing is not appropriate an alternative as there would not be properties suitable to address her disabilities, would potentially be located far removed from her mother, and would not have the supports she needs in the event of a seizure.
Shared accommodation is also not a viable option due to her psychosocial disabilities, including anxiety and her bipolar condition. Ms Barratt addressed how the proximity and level of contact with other residents led to a deterioration in her psychosocial conditions and a decrease in ger level of function.[21]
Supported independent living is also not open to her as she does not require eight hours per day of active support.
DZQW submitted that due to her mother's declining health, she is now unable to provide the support she has provided her over many years. This is recorded in Dr Sales letter[22] and Ms Sillett's record of DZQW's mother's carer burden as being extreme.[23]
In terms of the value for money of the provision of SDA, these costs would be shared with the other residents in the complex and would be a cost-effective way of providing the supports she needs.

[253]

As previously noted in making my assessment I need to consider whether DZQW:
- Meets the SDA eligibility criteria in Rule 11 of the SDA Rules in that she either has an extreme reduction in functional capacity (covered by Rule 12) or has very high support needs (covered by Rule 13).
If I find DZQW meets either or both those eligibility criteria then I am required to determine whether she meets the SDA needs requirements (covered by Rule 14).
If I find that DZQW meets the SDA needs requirements, I also then need to be satisfied that her request meets the reasonable and necessary criteria set out in s 34(1) of the Act.
The next step, if I find her request for SDA funding is reasonable and necessary, is to establish whether the requested SDA building type, SDA design category, and SDA location (covered by Rules 16 to 18) are reasonable and necessary.
I note that if at any stage in this assessment, I find that DZQW does not meet any one of these provisions, I cannot approve her for SDA. This is because as a decision maker I need to be satisfied that each of the eligibility criterion is met.
Before conducting that assessment, I think it is important to identify the general principles enshrined in both s 4 and s 17A of the Act that I consider should inform my assessment.
The principles in s 4, I consider of relevance to DZQW's application are the following:
- People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional, and intellectual development. (s 4 (1)).
- People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development. (s 4 (2)).
- People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives. (s 4 (8)).

[268]

Before commencing my assessment of DZQW's eligibility for SDA, I believe it is important to make the following observations and conclusions.
The first of these is that, in order to be found eligible for SDA, an applicant must meet all the eligibility criteria in the SDA Rules as well as all the reasonable and necessary criteria in s 34 of the NDIS Act. Obviously, this is a significant bar every applicant must attain.
The second relates to the question as to whether DZQW's informal supports are sustainable and address what other accommodation options are realistically open to DZQW.
In answer to the first of these issues, is that it is abundantly clear on the evidence that there are inherent risks to her from continuing to reside in her mother's home and that DZQW continuing to receive her mother's support in her mother's home is no longer a viable option. In reaching that conclusion I note the following:
- Dr Milton Sales, in his letter dated 12 May 2025, states that DZQW's mother has her own health issues including bicuspid aortic valve with moderate aortic stenosis, arthritis, obesity and experience breathlessness on exertion. These conditions significantly impact her ability to provide the necessary care for her daughter.[25]
- He further noted that DZQW's mother's cardiac condition is worsening and will require a heart valve replacement at some stage. Her increasing shortness of breath, poor sleep due to monitoring DZQW's epilepsy, and deterioration in physical condition means she can no longer fulfil all her daughter's care needs.[26]
- Dr Sales in his response to a request for further information to SDA dated 27 November 2023 again referred to DZQW's mother's deteriorating health and diminishing ability to care for her daughter.[27]
- Ms Danni Bodycott in her report dated 27 June 2022 noted that aspects of her mother's home were identified as being unsafe and limiting her participation in daily tasks. [28]
- Ms Steph Sillett (Occupational Therapist), in her report dated 30 January 2023, noted that DZQW's mother's score in a Carer Burden Scale assessment was 67, which indicated a severe burden.
- Ms Laura Neely (Occupational Therapist), in her report dated 21 August 2023. Also identified the risk factors inherent in her mother's home and recommended she reside in an SDA fully accessible property.[29]
While I note that DZQW's mother did not give evidence at the hearing I have no reason to consider that her carer statement and the other evidence provided concerning her own health issues and the long-term effect of meeting her daughter's care needs is not accurate or truthful.
This finding will be of some relevance when I consider whether DZQW meets the 'needs assessment' criteria outlined in Rule 14 of the SDA Rules.
The question then is what future housing option will meet DZQW's quite complex and situationally specific needs, and whether she meets the high bar to be found eligible for SDA.
From my extensive knowledge of the community and social housing sectors it appears that DZQW may be eligible for social, or community housing suitably modified to meet her physical impairments and available in her current community. Other options may include living with another family member or in some form of shared housing. A further option may be for her family to acquire a suitable property and then seek approval from the Agency for it to be approved for SDA. In any event, whatever housing option is found to be most suitable, she will require overnight monitoring of her seizure activity and immediate assistance readily available to respond.
The other fundamental question I must decide when assessing whether DZQW has very high support needs, is whether the need for someone to be able to respond quickly to her seizure alarm being activated overnight. Even if this may occur episodically, it establishes that DZQW has a very high need for person-to-person supports, which are immediately available.

[275]

In some aspects of her life, DZQW can function independently particularly when she is experiencing a 'good day.'
She is independent in some aspects of her self-care, self-management, mobility (with assistive technology), and social and community participation. Much of this I would ascribe to her strong determination to live as independently possible.
However, these capacities can fluctuate greatly and on 'bad days' and on days after experiencing an overnight seizure, she is largely dependent on others to provide support in these areas. This potentially could include increased support needs after DZQW experiences a fall, which has occurred several times in recent years.
At the time of writing, this support is primarily provided by her mother, however, as I have previously indicated, that is no longer a viable option other than for the short term.
Therefore, in my view, DZQW needs a very high level of support on these days as well in the immediate aftermath of an overnight seizure and generally for 48 hours thereafter.
Where she does require assistance is at night and sleeping where she is subject to episodic seizures. The evidence indicates that DZQW will experience these seizures approximately 6 times per month on average.
While these seizures cannot be considered to be frequent, they can place her at significant risk without immediate intervention from a person who lives with her. At the present time this assistance is provided by her mother who does so after being alerted that her daughter is experiencing a seizure by way of an electronic alert. In the event of such a seizure there are a range of responses required from the responder outlined in her Epilepsy Management Plan,[31] and Dr Natalia Murray's response to targeted questions.[32]
The evidence before me indicates that in the event of a seizure occurring, someone would need to be available to immediately respond to implement the epilepsy management plan including placing DZQW in a recovery position, removing any potential dangers such as placing her on her side, timing the seizure and, if the seizure is more than 5 minutes in duration, calling an ambulance.[33]
I will address these risk factors in further detail in the next section of my decision.
I am also satisfied that the alternative sources of supports proposed by the Agency's Counsel, such as the ambulance service responding to a seizure alert are neither realistic nor practical as it is evident that an immediate human response is required (i.e. within minutes) to respond to the activation of the seizure alert and ensure DZQW's safety, which emergency services would be unable to achieve.
Having considered the support needs DZQW requires, I am satisfied that she has a very high need for person to person supports, which are immediately available for a significant part of the day, namely overnight.
It may of course be objected that, given the episodic nature of DZQW's seizures and the limited frequency of such episodes, that would not constitute a very high need for support. However, I do not consider that objection can be sustained, taking account of the risk factors attaching to DZQW's seizures, which again, I will address below. Also, the fact that across some nights in any given month, DZQW may not require that assistance does not mean that she does not have high support needs. For example, in my view, if DZQW were to be living independently in some other form of housing, such as community housing, the need for funding overnight support in the event of a seizure would still exist.
I also consider that based upon DZQW's oral evidence, her statement of lived experience, her mother's carer statement and independent evidence from Dr Milton Sales, there are limitations in the availability, capacity or capability of her informal support network or risks to its sustainability.
While DZQW's mother continues to provide this informal support, her own worsening health places her at risk if she continues to provide this support and there is a further risk to the sustainability of her relationship with her daughter
Although I am satisfied that Rule 13(1)(b)(i) has been met, I will also address Rule 13(1)(b)(ii). That part of Rule 13 requires me to be satisfied that DZQW is at risk or poses a risk to others, and that risk could be mitigated by the provision of SDA, having regard to her response to risk and her interaction with the environment.
Dr Murray in her response to targeted questions addressed these risk factors.
Dr Murray has also indicated that DZQW's seizures are difficult to predict and noted that this includes more serious tonic/clonic seizures. Those risks range from Sudden Unexpected Death in Epilepsy (SUDEP) to the impact of uncontrolled seizures to her physical and mental health as well as the significant postdrome effects of grogginess, fatigue, incontinence, cognitive changes and difficulty walking.
As I have previously found that her seizures require an immediate human response, and DZQW's proposed SDA facility can provide this response, I am satisfied that these significant risks can be mitigated by the provision of SDA.
I therefore conclude that DZQW meets the criteria in Rules 11 and 13 in the SDA Rules.

[290]

In her current plan, DZQW identified the following aspirations as her goals:
- I would like to live independently in Supported Disability Accommodations.
- I want to maintain my mobility and strength which will help me with my confidence.
- I would like to grow independence and move toward living independently.
- I want to continue to access the community and participate in social and recreational activities of my choice.
- I would like to be able to reconnect and build a more social circle and to build a purpose in my everyday life.
- I would like to develop the skills required to regulate my emotions to be able to combat symptoms of my disability.
It is clear from the above list that DZQW has identified being approved for SDA maintaining mobility and strength, gaining greater independence, living independently, and improving her access to the community as her goals.
Assessing this criterion necessarily entails comparing the current support arrangements with how SDA may better pursue those goals.
While DZQW's current living arrangements are assisting her in pursuing those goals they do have significant deficiencies including:
- She experiences significant difficulties effectively mobilising within her mother's home as her walker does not fit or adequately fit in either her bedroom, her mother's bedroom and ensuite or the kitchen. This also applies to entering and exiting the house due to needing her motorised wheelchair when leaving her mother's home as well as the steep driveway to access the property.
- I consider these deficiencies at least in part are contributing factors to some of her recent falls.
- She is unable to use her motorised wheelchair in the current property.
- Her mother's own health issues affecting her capacity to continue providing this support.
In any event, I have already concluded that for the reasons I have indicated above, her current living arrangements, and the informal supports provided primarily be her mother, I am satisfied in accordance with Rule 13(1)(b)(i) those arrangements are no longer sustainable.
The proposed SDA will provide level access and design features allowing her to use her motorised wheelchair and access and leave the property independently as well as independently utilise the kitchen for food preparation. She will be able to receive concierge assistance, at times when her support workers are not present, to assist her with monitoring and responding to her seizure alarm, addressing her more intensive support needs post-seizure and in the event of a fall. Without SDA she will not have the ability to get assistance at the times when it is needed, particularly when she has a seizure and, in its aftermath, and in the event of a fall.
In terms of improving her community access, the proposed property is located closer to her university and writers' group than her mother's property and is accessible by public transport. I also accept that she will be able to have friends and family visit and that there are certain restrictions to her doing so in her mother's home.
I consider this criterion in Rule 14 (a) is satisfied.

[292]

From the material before me, I consider that SDA, in conjunction with other supports, will be beneficial and effective.
SDA combined with the use of her powered wheelchair and some assistance from her family, support workers and on-site concierge support will provide DZQW with the opportunity to utilise the kitchen and participate in cooking for herself as much as she is currently able to.
SDA combined with the use of her powered wheelchair will provide DZQW with the opportunity to access her bedroom and other areas of the proposed property, including external areas, independently and at times of her choice, and further be given the opportunity to develop her socialisation skills and friendships with others in the proposed SDA property.
SDA combined with the use of her powered wheelchair will mitigate against the risk of physical injury by providing her with wheelchair accessible access to her bedroom, bathroom and kitchen which is not the case in her mother's home.
Without provision to SDA even utilising her other supports, DZQW will be limited in her access to certain areas within her mother's home. She will also continue to be at risk of falls when attempting to access her bedroom, bathroom and the kitchen.
Based upon the above findings, I am satisfied that the combination of SDA and 'other supports' will be more effective and beneficial for DZQW on the basis that it will improve her lived experience. It will reduce the impacts of her impairment in her functional capacity and promote greater opportunities to develop skills which include social participation. It will reduce her level of isolation arising out of physical barriers. The combination will provide DZQW with a greater level of independence insofar as she will have choice and control over her ability to access all parts of her home, both internal and external. The combination of SDA and 'other supports' will also address DZQW's future support needs particularly in a further reduction in mobility.
The criteria under Rule 14(1)(b) of the SDA Rules is therefore satisfied.

[297]

I have already identified that DZQW's informal supports can no longer address her needs due to her mother's own health issues. While her mother will continue to provide as much emotional and other support as she is able, it is clear DZQW needs her own housing.
It is apparent to me that in the event DZQW moved into either private rental accommodation or suitably modified social housing, her formal support needs would necessarily need to increase to take the place of those supports her mother currently provides.
However, in the absence of a formal needs assessment being conducted, it is not possible to quantify those supports and their cost in the abstract.
The Agency submits that there is insufficient evidence to establish that the proposed SDA represents value for money and that DZQW already has significant funding.
I note that the proposed SDA provider, Insitu Housing, provided in its conditional offer dated 5 September 2022, an anticipated cost of between $65,000 and $75,000 per resident in the 10-unit facility. It does not appear that a more updated estimate has been provided, however, I can safely assume a current quotation would be more than this quoted amount.
I consider that regardless of where she is living, DZQW will require overnight support unless the monitoring of her seizures is continued to be provided informally; however, given her mother's own health concerns, and the family and other commitments of her siblings, I discount this as a viable option.
In any event the provision of such consistent overnight support funded through the Agency is likely to exceed the amount specified by Insitu Housing.
I am also satisfied that given the opportunity of a fully accessible property DZQW will be able to follow through on her desire for greater independence including cooking and preparing meals and have greater opportunities for social interaction.
Clearly, she will require some domestic assistance, however, some of that support may be provided by Insitu Housing as well as in a reduced form by her family when available.
It is evident that DZQW wishes to live as independently as possible and that she makes every effort to limit the assistance that she requires. Concierge services will avoid lengthy delays in receiving assistance when she may require it, including monitoring and responding to her seizure alarm, providing post-seizure care and assistance in the event of a fall. This ready availability of support will avoid adverse health outcomes and the associated expenses. It will also improve her lived experience, preserve her dignity and be of long-term benefit to her.
The criteria under Rule 14(1)(e) of the SDA Rules is therefore satisfied.

[316]

The Agency in its SFIC contended that if the Tribunal finds that DZQW is eligible for SDA, that the following was relevant in determining the type and what model was most appropriate for her:
- There is insufficient evidence to support a finding that the Applicant's support needs require her to live by herself.
- Having regard to the Applicant's lower-level support needs, a shared model of SDA within a villa, duplex or townhouse represents value for money in comparison to other building types.
- DZQW does not have a significant physical impairment necessitating the provision of fully accessible SDA design category. An improved liveability design category would provide the Applicant with the level of physical access she requires to mobilise with her four-wheeled walker or wheelchair, while meeting the "value for money" criteria in s 34(1)(c).
Addressing these contentions, I disagree that there is insufficient evidence to establish her request to live by herself.
In this regard, I have taken account of the report dated 28 July 2022 from Cassandra Barrett, Psychologist who noted that the symptoms of DZQW's psychosocial conditions worsened due to her proximity and level of contact with other residents when she was previously living in supported housing.[34]
Ms Steph Sillett, Occupational Therapist, in her report dated 30 January 2023 noted that group living was not a suitable model from multiple perspectives and was likely to cause a decrease in her function and increase her support needs, adversely affecting her opportunities to increase her independent living skills and building her capacity.[35]
Dr Sales in his response letter dated 27 November 2023, also advised that shared accommodation would not be suitable for DZQW.[36]
Having had regard to that evidence I am satisfied that DZQW needs to live in her own accommodation and that a shared model of care is not appropriate.
In terms of whether the fully accessible category or an improved liveability category is best suited to her requirements, I consider that the Agency's assertion that DZQW does not have a significant physical impairment is not correct.
When assessing the appropriate building type, it is appropriate that I consider her longer-term needs and the likely trajectory of her level of functional capacity.
Several of the Occupational Therapists have indicated that DZQW is largely reliant upon her motorised wheelchair and requires a fully accessible property that will accommodate its use in all areas.
In this regard I also note that DZQW's mobility issues are likely to worsen over time. There is reference in the material to the possibility that she may require an amputation in the event a trial of a crow boot proves unsuccessful. I also note that DZQW has already had multiple operations on her right ankle and further accept that her conditions such as osteoporosis are progressive and therefore likely to worsen over time.[37]
Taking account of these factors, I consider that DZQW requires an apartment style dwelling in the fully accessible category.
Finally, the Agency disputes that DZQW requires a two-bedroom property and that a one-bedroom property will meet her needs.
Again, I respectfully disagree. It is evident that a second bedroom is necessary when a support worker or concierge support is required to remain overnight with her in the event of a seizure and its aftermath. The second bedroom would also be required for storage of her assistive technology which I consider reasonable.
I also consider that the location of any SDA will need to be in her local area including the Newcastle area to ensure she lives in close proximity to her mother and sisters who will, I'm sure, continue to provide informal support for her within their capacity to do so.

DZQW and National Disability Insurance Agency (NDIS) [2025] ARTA 1543 (11 August 2025)

At a glance

Court

Decision date

Source

Judgment (335 paragraphs)

DZQW and National Disability Insurance Agency (NDIS) [2025] ARTA 1543 (11 August 2025)

Legislation Cited (9)