Decision: The Tribunal affirms the decision under review pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth).

National Disability Insurance Scheme - reviewable decision of Chief Executive Officer - Statement of Participant Supports - NDIS support - plan management - power wheelchair - assistance animal - reviewable decisions - decision affirmed.

Administrative Review Tribunal Act 2024

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)

National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024

National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024

National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth)

Drake and Minister for Immigration and Ethnic Affairs (No. 2) 1979 2 ALD 634

McGarrigle v National Disability Insurance Agency [2017] FCA 308

National Disability Insurance Agency v WRMF [2020] FCAFC 79

NDIS Operational Guidelines - Reasonable and Necessary Supports, dated 28 March 2025.

NDIS Operational Guidelines - Assistive Technology dated 20 December 2023.

NDIS Operational Guidelines - Assistance Animals including dog guides dated 27 March 2025.

1. This is a review of a decision by a delegate of the CEO of the National Disability Insurance Agency (the Respondent) not to approve various supports in FVCS (the Applicant) Statement of Participant Supports.
2. FVCS is 47 years of age, and she has been a National Disability Insurance Scheme (NDIS) participant since meeting the eligibility criteria for access on the 10th of July 2018. FVCS lives with her adult son who is also an NDIS participant. FVCS met access to the NDIS for her permanent impairments attributable to her diagnoses of Ankylosing Spondylitis and Post-traumatic Stress Disorder.

1. A decision to approve a Statement of Participant Supports is a reviewable decision.[1] On 4 March 2024, a delegate of the CEO of the NDIS made a decision to approve FVCS's Statement of Participant Supports (SOPS) under s33(2) of the NDIS Act. FVCS was dissatisfied with this decision and requested an internal review pursuant to s100(2) of the NDIS Act on 18 March 2024. On 31 May 2024, a different delegate of the CEO of the NDIS confirmed the original decision.
2. FVCS filed an application for external review with the Administrative Appeals Tribunal (the AAT) on 28 June 2024. The AAT was abolished on 13 October 2024, and the Administrative Review Tribunal (ART) began on the 14 October 2024. By virtue of the transitional arrangements, FVCS's application for review was automatically transferred to the ART.

1. The hearing was conducted via Microsoft Teams and held on the 1st, 2nd and 3rd of September 2025. FVCS was self-represented. The Respondent was represented by Mr N Scott, of Counsel instructed by Mr P Papas, of Moray & Agnew. The following evidence was filed with the Tribunal:

(i) Joint Tender Bundle (JTB), exhibit 1; > > (ii) T-Documents, exhibit 2; > > (iii) NDIS Operational Guidelines - 'Assistance Animals including dog guides' dated 27 March 2025, exhibit 3; and > > (iv) Email from the Applicant 'ART Reply' dated 31 August 2025, exhibit 4.

2. The following witnesses were called to give oral evidence and were cross-examined during the three-day hearing:

(i) FVCS, the Applicant; > > (ii) Ms K C, the Applicant's Support Worker; > > (iii) Ms C M, the Applicant's Occupational Therapist; and > > (iv) Mr G D, the Respondent's independent expert Occupational Therapist.

1. The Tribunal's role in conducting this review is to reach its own conclusion as to whether the supports requested by FVCS meet the criteria set out under the NDIS Act to enable them to be funded under her SOPS.[2] This involves the independent re-assessment of the evidence that was before the NDIS delegate as well as the assessment of additional documentary and witness evidence before the Tribunal at the time of the hearing.[3]

1. During a Directions Hearing with both parties, held on 9 July 2025, I made an order under section 53 of the Administrative Review Tribunal Act 2024 (Cth) that the issues, questions of fact and evidence in the proceeding were to be confined to the following three supports:
   1. Maintenance costs relating to the Assistance Animal, a dog named 'K';
   2. Funding for the powered wheelchair; and
   3. Request for NDIS funding to be plan managed.

1. Chapter 1, Part 2 of the NDIS Act sets out the Act's objects and the principles to be applied when undertaking actions under the Act.
2. The objects describe the purpose of the Act being to support the independence, choice and control, along with social and economic participation of people with disabilities. The objects describe that this is to be achieved through the provision of high quality and innovative supports that enable people with disability to maximise an independent lifestyle, through the funding of reasonable and necessary supports.[4]
3. The principles outline the rights of people with disability to enjoy the dignity of participation and contribution to social and economic life, including the capacity to realise their potential in pursuit of their goals.[5]
4. Both the objects and the principles state that in giving effect to, or in exercising powers under the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.[6]
5. Part 2 of Chapter 3 of the Act sets out matters in relation to the development and administration of participants' plans. Generally, a participant's plan must include:
   1. a statement of participant goals and aspirations, which they have prepared;[7] and
   2. a statement of participant supports, which includes the general supports that may be provided, and the reasonable and necessary supports that will be funded under the Scheme.[8]
6. Section 33(5) provides a list of all the factors the decision-maker must consider when deciding whether or not to approve a statement of participant supports. These are as follows:

1. the participant's statement of goals and aspirations;

1. relevant assessments conducted in relation to the participant;

1. being satisfied in relation to all the criteria set out in section 34;

1. having regard to the NDIS Rules made for the purpose of section 35 of the Act;

1. having regard to the principle that the participant should manage his or her plan to the extent they wish;

1. having regard to the operation and effectiveness of any previous plan of the participant; and

1. the history of the use of NDIS funds in earlier plans.

1. The determination of reasonable and necessary supports to be funded in a participant's SOPS requires the consideration of all the factors in section 33(5) of the NDIS Act along with the mandatory criteria of section 34 of the NDIS Act. A decision maker may only reach a state of positive satisfaction as to the section 34 criteria if there is sufficient evidence to do so.[9]

1. These matters are also reflected in Rule 2.3 of the Support Rules. Section 34 reads as follows:

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

(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 wither of those requirements.

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

1. Section 35 of the Act sets out matters which Rules made in relation to the statement of participant supports may address. The relevant rules applicable to this review include:
   1. National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth); (the Support Rules)

1. National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (the Transitional Rules)
2. The Support Rules made pursuant to subsection 35(1) of the NDIS Act provides further guidance with respect to the assessment of reasonable and necessary supports that will be funded. Pursuant to section 209 of the NDIS Act, the Rules are a legislative instrument and are therefore binding to the Tribunal. In this case the relevant Rules include:

3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:

(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost.

(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant.

(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports).

(d) for supports that involve the provision of equipment or modifications:

1. the comparative cost of purchasing or leasing the equipment or modifications; and
2. whether there are any expected changes in technology or the participant's circumstances in the short term that would make it inappropriate to fund the equipment or modifications.

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

(f) whether the support will increase the participant's independence and reduce the participant's need for other kinds of supports (for example, some home modifications may reduce a participant's need for home care

1. Part 5 of the Supports Rules sets out the general criteria for supports and supports that will not be funded or provided:

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

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

(b) it is not related to the participant's disability; or

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

(d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant's disability support needs.

5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):

(a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;

(b) costs that are ancillary to another support that is funded or provided under the participant's plan, and which the participant would not otherwise incur.

1. The Respondent publishes Guidelines to assist in making decisions in accordance with the NDIS Act. The Guidelines are policy documents without legislative force, and the Tribunal is not bound by them. It is generally held, however, that they should be applied where there is no conflict with the terms of the Act.[10] The NDIS Operational Guidelines relevant to this review are Assistance Animals including dog guides and Assistive Technology.

1. The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (the Amending Act) has made significant changes to the legislative scheme through amendments to the NDIS Act and the addition of transitional rules. This Act commenced on 3 October 2024.

1. Item 129 of Schedule 1 of the Amending Act provides that sections 33, 34 and 35 as amended, all of which deal with the development of participant plans, apply to any old framework plans that are approved or varied on or after the Amending Act's commencement. These amendments will apply to this review.

1. The term 'NDIS support' has been introduced by the Amending Act. This means that a support cannot be included in a participant's SOPS, unless it is an 'NDIS support'.[11] Section 10 of the NDIS Act provides that a support is an 'NDIS support' if it is declared to be so by the NDIS Rules. Section 10 also provides that the NDIS Rules may declare certain items not to be an 'NDIS support'.

1. The Amending Act provides that the Minister may make Transitional Rules for the purpose of section 10 of the NDIS Act.[12] In the making of these rules, the Minister is obliged, to:
   1. have regard to the objects and principles of the NDIS Act;[13]
   2. have regard to the need to ensure the financial sustainability of the Scheme;[14]
   3. ensure the Rules do not directly amend the text of the Act;[15]
   4. be satisfied that declared supports are or are not appropriately funded through the Scheme.[16]

1. Schedules 1 and 2 of the Transitional Rules set out the supports which generally are and are not 'NDIS supports'. The term 'NDIS Support' also appears in the amended section of section 34, where it states that supports to be funded must be NDIS supports.[17]

1. The NDIS Act requires that a decision maker is obliged to have regard to the financial viability of the Scheme when making decisions about NDIS supports to be funded.[18] A decision maker is also obliged to be satisfied that the supports are:

a) necessary to address an impairment for which access to the Scheme was granted,[19]

b) relevant to achieving the participant's goals,[20] and

c) represent value for money in that costs are reasonable relative to the benefits to be achieved and the cost of alternative support.[21]

1. A decision maker must reach the requisite level of positive satisfaction about these matters in a reasonable and rational manner on the basis of material before them.[22] The funding of a particular support by the expenditure of public funds must be justified as 'reasonable and necessary'.[23]

1. FVCS's current plan began on 8 July 2025 and has a six-month duration. The plan is Agency-managed, and is comprised of the following funding:

a) Core flexible funding $96,039.66, funding period schedules of 1-month periods at $16,006.63 per month. > > b) Choice and Control $626.70 > > c) Assistive Technology Maintenance, Repair and Rental $1,475.50. > > d) Improved Daily Living Skills $10,061.48, funding period schedules of 1-month periods at $1,676.93 per month. > > e) Support Coordination and Psychosocial Recovery Coach funding $3,605.04, funding period schedules of 1-month periods at $600.84 per month.

1. FVCS gave oral evidence at the hearing, summarised as follows:
   • She seeks assistance animal maintenance funding for her labrador named 'K, who is 12 years old.
   • K was provided and trained by the Queensland organisation called Smart Pups in 2014, for FVCS's son.
   • K was matched and placed with FVCS's son, and FVCS was her 'adult handler'.
   • In around 2016, FVCS's son chose not to utilise the assistance dog, and FVCS became K's certified handler.
   • K is mentioned in all FVCS's NDIS plans' 'About Me' sections and is also mentioned in her plan goals.
   • K is 'task trained' to a high standard and does not need to be trained to a specific disability; rather, she is trained for her ability to perform tasks.
   • It is irrelevant whether K is trained for anxiety caused by one specific diagnosis versus another specific diagnosis.
   • K has been in good health, and her urinary tract infection and mild arthritis have not impacted on her ability to carry out assistance tasks.
   • K has been accredited as an assistance dog under the Guide, Hearing and Assistance Dogs Act 2009 Qld certification number 500729, current to 25 August 2025.
   • K's maintenance costs were previously included in FVCS's 2021 and 2022 plans.
   • The NDIS funded FVCS a larger hi-lo adjustable bed, as K assists her during the night.
   • K undertakes 'take', 'bring', 'give', 'touch' and 'lap' commands, along with responding to FVCS's anxiety and distress.
   • FVCS is accompanied by a support worker when accessing the community and requires increased core funding for support workers.
   • K also accompanies FVCS into the community and to her appointments.
   • FVCS's cost analysis compared K's maintenance costs with similar support worker hours, equating to an estimated $44,000 a year in savings.[24]
   • K is professionally washed once a fortnight to maintain her hygiene, and eats a specialised metabolic diet recommended by her vet.
   • FVCS described that an assistance dog can assist more than one person, citing a newspaper article regarding an assistance dog saving the life of another family member in alerting to their seizure.

1. FVCS is a wheelchair user. She can only walk short distances when indoors. Her current V6 Frontier powerchair was funded by the NDIS in 2022. The V6 Frontier powerchair was chosen by FVCS due to its indoor and outdoor capabilities. FVCS explained that she has undertaken a trial of her V6 Frontier powerchair in hard sand, and that it got bogged.[25] She has been advised by an Assistive Technology representative from the organisation Aidacare not to drive her V6 Frontier on sand.

1. FVCS is seeking a powerchair that she can use for traversing over the sand at the beach. FVCS lives near the beach and she gave evidence that she enjoyed walking along the beach before she became a wheelchair user. She gave oral evidence that beach access provides positive grounding effects relating to her PTSD. FVCS gave further evidence that she seeks a powerchair capable of traversing sand to watch her son's surfing events that take place on various beaches approximately 4 times per year.

1. FVCS states that in her current V6 Frontier she is confined to the boardwalk or restricted to beach access via blue stationary matting, only provided by some local councils at some accessible beaches.

1. FVCS emphasised at the hearing the stress and frustration caused by her plan funding being changed to Agency-managed. She described that due to the change, her usual support workers went some weeks without payment. She reported that her support workers were placed in the position of being compelled to find a registered NDIS provider to work under, so that they could continue to be paid to provide her supports.

1. FVCS recognised the Tribunal had limited the scope to three issues, however she did raise that she has increasing daily support needs including the need for overnight supports. She also reported she currently has no method to have her lawn mowing, podiatry, or the modified vehicle component of her car insurance funded, due to these supports not being provided by NDIS registered providers.

1. FVCS stated that due to her increasing support needs she plans to gather the evidence required to submit a NDIS Individualised Living Options assessment for consideration by the NDIS, following the end of the Tribunal matter of these three supports. FVCS stated she is fully reliant for all her personal care when she is away from home, as she cannot always book accommodation that has bidet facilities. Due to this, she has utilised her funding for overnight support worker assistance.

1. At the outset of the hearing the Respondent acknowledged that K is a beloved animal who provides emotional comfort to FVCS. The position of the Respondent is that K is not necessary to address FVCS's needs arising from her impairments, for which she met access under s34(1)(aa) of the NDIS Act.

1. The Respondent states that the only cited certification for public access in evidence is from 2023. The Respondent contends there is no evidence of K's certification for 2024 or 2025, in relation to public access.

1. The Respondent states that while K is mentioned in FVCS's 'About Me' section of her plan and in her plan goals, this is separate from meeting the criteria to be funded under a SOPS.

1. The Respondent's position is that FVCS received funding for assistance dog maintenance costs for K in two of her NDIS plans, dated 2020 and 2021.[26] The Respondent confirmed that before and since this time, no assistance animal maintenance costs have been funded for K under FVCSs' SOPS.

1. The Respondent contends K does not meet the definition of an 'eligible assistance animal' s4(1)(a)-(d) of the Transitional Rules, as K was neither trained nor accredited to assist FVCS with her disability, nor to alleviate the effect of her disability.

1. The Respondent states K is not an 'NDIS support' under s34(1)(f) nor meets s34(1)(aa) of the NDIS Act as being necessary to address needs arising from FVCS's impairments. Further, the Respondent states that K does not represent value for money s34(1)(c) or (d) meet the effective and beneficial criteria under the NDIS Act, as the evidence does not support that K has full capacity to perform her assistance animal duties due to health issues.

1. The Respondent states that the request for the power wheelchair for beach access, does not represent value for money under s34(1)(c) and does not take into account what is reasonable to expect the community to provide: s34(1)(e) of the NDIS Act. The Respondent also states the powerchair is a duplication of supports, with the V6 Frontier powerchair funded by the NDIS in 2022: Supports Rules 5.1(c).

1. In the final issue for determination, the Respondent's position is that FVCS's funding should stay as Agency-managed. The Respondent states that FVCS has spent her funding well ahead of her plan end dates. The Respondent contends that FVCS's history of exhausting funding early creates a risk to her overall wellbeing, as it may leave her unsupported. Therefore, the Respondent's position is FVCS's SOPS should stay as Agency-managed.

1. The starting point for my consideration is section 33(5) of the NDIS act. With respect to section 33(5)(a) FVCS's current plan lists her plan goals as follows:

a) During this plan I would like assistance at home and in the community to continue to live independently. > > b) During this plan I would like to live as pain free as possible. > > c) I would like to continue supports for my assistance dog so that I remain safe in my home and in the community. > > d) I would like to access the community so I can maintain friendships and community connections. > > e) I would like to maintain my relationships with my extended family who live interstate. > > f) I would like to be able to sustain the level of care I give to others. > > g) I would like the ability to experience new places and activities while I am able, and my disability allows.

1. With respect to section 33(5)(b), I have considered all the evidence provided by both parties, including the assessments conducted in relation to FVCS. I will refer only to the evidence that is directly relevant to my decision. Per section 33(5)(c), I must consider whether I am satisfied in relation to all the mandatory factors in section 34(1) of the NDIS Act as to whether the supports requested are reasonable and necessary to be funded by the NDIS.

What impairments did FVCS meet the disability requirements for: s24 NDIS Act?

1. During the hearing the Respondent advised that FVCS met access to the NDIS on the basis of permanent physical and psychosocial impairments, flowing from her diagnoses of Ankylosing Spondylitis and PTSD.

1. I am satisfied on the evidence before me that FVCS meets the disability requirements on the basis of her permanent psychosocial and physical impairments as a result of her Ankylosing Spondylitis and PTSD.

1. Having found FVCS has permanent psychosocial and physical impairments which meet the disability requirements in section 24 of the NDIS Act, I will turn to consider the supports requested.

Is K an 'eligible assistance animal' within the meaning of the Transitional Rules for s34(1)(f) of the NDIS Act?

1. An 'eligible assistance animal' is defined in the Transitional Rules by section 4 (1) Definitions as follows:

eligible assistance animal means a dog or other animal that is:

(a) accredited under a law of a State or Territory that provides for the accreditation of animals trained to assist a person with a disability to alleviate the effect of the disability; or

(b) accredited by an animal training organisation prescribed in regulations made under section 132 of the Disability Discrimination Act 1992 for the purposes of paragraph 9(2)(b) of that Act; or

(c) accredited by a registered NDIS provider who is registered to provide assistance animals under section 73E of the NDIS Act; or

(d) trained to assist a person with a disability to alleviate the effect of the disability and to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

1. The Queensland Guide, Hearing and Assistance Dog (GHAD) certification shows that a dog can perform specific trained tasks and has passed their public access test.

1. For GHAD certification, a dog must demonstrate identifiable physical tasks and behaviours that help a person with their disability. Their handler must demonstrate control, the dog must respond to commands, remain undisturbed by public activity, and demonstrate cleanliness and appropriate toileting.

1. Once a dog passes the GHAD in Queensland, it becomes officially recognised as an assistance animal. The handler holds a certification card and has the lawful right to be accompanied by their dog who is wearing their identifying badge/coat into public places, passenger vehicles and accommodation.

1. On the evidence before me, K was accredited under the Guide, Hearing and Assistance Dogs Act 2009 (Qld). She held certification number [redacted], and her accreditation was current to 24 August 2025.[27]

1. In Queensland the GHAD certification is valid for 3 years, and the handler's identity card is valid for 3 years from the date of issue.

1. There is evidence before me outlining that K passed a public access certification on 11th August 2023, this forms part of the GHAD certification process.[28]

1. The Respondent contends that while K was trained and accredited under the Queensland legislation, she has not been trained/accredited to assist FVCS with her disability or the effect of her disability. The Respondent states that because of this, K is not an 'eligible assistance animal', and maintenance funding cannot be provided by the NDIS.

1. I agree with this position, as the language of s4(1)(a) refers to 'a person': 'accredited under a law of a State or Territory that provides for the accreditation of animals trained to assist a person with a disability to alleviate the effect of the disability'.

1. The NDIS Operational Guidelines - Assistance Animals dated 27 March 2025 supports this view, stating at page 2 that: 'An assistance animal is an animal specially trained to help you do things you can't do because of your disability'.[29]

1. I am not satisfied that K meets the definition of 4(1)(a) as an 'eligible assistance animal' on the basis of holding her GHAD certification up to 24 August 2025. Therefore, I am also not satisfied K was on NDIS support for Schedule 1, item 2 of the Transitional Rules up to 24 August 2025.

Is K necessary to address the needs of FVCS arising from the impairments in relation to which she met the disability requirements?

1. In 2014 K was provided to FVCS's son by Smart Pups, an organisation that trains assistance dogs in 'task specific skills' for children.

1. FVCS's evidence is she was K's 'adult handler', specifically referencing the Smart Pups 'three-unit team' model. This model refers to the relationship between the trained assistance dog, the child, and an adult handler usually the child's parent, who then all work together as the 'three-point team'.[30] FVCS gave evidence that when her son concluded working with K, she became K's certified handler in 2016.

1. FVCS, her Support Worker Ms C, and her Occupational Therapist Ms M, all provided oral evidence at the hearing confirming they have observed K undertaking 'take, bring and give' and 'lap' commands for FVCS. All three witnesses provided oral evidence stating that K is an important asset for FVCS's PTSD due to K's ability to respond to FVCS's emotional distress.

1. FVCS gave evidence that K senses when she is experiencing anxiety, and K will place her head in FVCS's lap, as well as lay with her during the night in her bed help with her emotional regulation related to her psychosocial impairments.

1. The Respondent's position is that K has not been trained to assist FVCS with her disability, or to alleviate the effect of the disabilities she lives with.[31] The Respondent takes the position that K is not a necessary support for FVCS under s34(1)(aa) of the NDIS Act, as she was trained and matched specifically for the needs of FVCS's son, arising from his impairments.

1. The Respondent relies on the evidence of Mr D the Occupational Therapist who assessed FVCS in her home on 4 March 2025, and wrote in his report dated 4 April 2025 that:

K has not been trained in any formal manner in relation to [the Applicant]'s diagnoses of Ankylosing Spondylitis, Post-traumatic Stress Disorder, Depression and Anxiety. She has only received training in relation to her son's diagnoses [redacted] which FVCS does not have. Any capability of K to respond to what FVCS finds comforting is purely coincidental and has not been the product of any formal training.[32]

1. The Respondent's Occupational Therapist Mr D stated in his report dated 4 April 2025 that K was kept outside in the backyard for most of his functional capacity assessment with FVCS. In his report he states that K was called inside to demonstrate tasks she performs for FVCS. Once the demonstration was complete, K was directed to go outside into the backyard.

1. K was asked to pick up a pen dropped on the floor next to FVCS's chair. Mr D noted in his report that:

Comment: This particular task was arduous, both in the need for several prompts and the two failed attempts. It was my impression that [the Applicant] would have been able to retrieve her dropped pen much easier with a long-handled reacher, noting it fell directly next to her chair.[33]

1. During the hearing, Mr D's contentions were challenged by FVCS who maintained that K was in 'free mode' rather than in 'work mode' during the functional capacity assessment. FVCS also contended that Mr D had given K a pat when she came inside to demonstrate her assistance tasks, interrupting her ability to work. This was contradicted by Ms C's oral evidence when she stated she did not see Mr D touch K at any point during the home visit.

1. Mr D submitted that it is beyond his scope to direct a person's supports during an assessment, in the way suggested by FVCS. He gave evidence that it is beyond his scope to tell a person to have their assistance dog inside their home, beside them, or to tell a person to put their assistance dog into 'work mode'.

1. Mr D provided oral evidence that assistance animals are matched and trained to work explicitly with an individual. He gave evidence that every person's needs will vary based on many individual factors, even when they have the same diagnosed conditions as another person. He stated that specific training and matching with an individual is vital for an animal to be an assistance animal.

1. The organisation Smart Pups was issued Targeted Questions from the Respondent. In their response Smart Pups stated that K was trained with the necessary skills as part of their 2014 modules, and those skills are retained. Their reply references the Applicant being FVCS, and states as follows:

Please find below answers to the questions as requested:

1(a). K was not required to undergo additional training to be qualified to assist the Applicant and her support needs.

(ii) No further training was required as K was originally trained with the necessary skills when placed in 2014. When originally trained in 2014, K learned Lap, Touch and picking up dropped items as part of Smart Pups Training modules. Her skills are retained because she is a working dog, using those skills on a regular basis to support the Applicant.[34]

1. Regarding Smart Pups responses, Mr D wrote in his report that 'It is my opinion these responses are manifestly inadequate and do not address the actual issue of a dog being specifically trained for one set of disabilities being used by a person with different disabilities'.[35]

1. In relation to this point the Mr D undertook the following exchange with FVCS during the hearing, as follows:

FVCS: So she actually says no further training was required because she had the necessary skills. So she actually ticks off that she had the necessary skills...

Mr D: She can't have the necessary skills because you weren't part of that assessment process.

Mr D: Because you and everything evidence before me says that that dog was trained for [Applicant's son] and [Applicant's son] conditions. And [Applicant's son] conditions are not the same as yours.

And I still make the point if I could just finish this part of the even if your diagnosis were exactly the same as [Applicant's son], I wouldn't change my opinion because the individual and the treating professionals around that particular individual and what their needs are should be part of the integral process.

So even if you had the exact diagnosis of [Applicant's sons disabilities] and not the other considerations, but your doctors and psychologists and psychiatrists and any other treating professionals who were part of your care, plus you yourself, if you were not part of that process, I'd have to come to the same conclusion that if they didn't take you as the individual, any assessments that get done is about the individual.[36]

1. In his report Mr D stated he observed an under reliance on K during his assessment, and that FVCS described K's tasks as follows:

• "She picks up items I drop from my chair, such as a pen" - frequency intermittent

• "She accompanies me to most medical appointments" - frequency unable to be precisely determined, as she said "most" not "all" appointments

• "She comes up onto my bed at night if I hear a noise and become anxious" - frequency intermittent/occasional[37]

1. Mr D gave cogent evidence that K was not trained to support FVCS's impairments. I am persuaded by the evidence of Mr D that K was trained to undertake identifiable physical tasks such as 'bring and give' but that her ability to mitigate the effects of FVCS's impairments is coincidental in nature only. I am persuaded by Mr D's evidence that K therefore is not a support necessary to address the physical and psychosocial impairments for which FVCS met scheme access under 34(1)(aa) of the NDIS Act.

1. As I have determined that paragraph 34(1)(aa) is not established, I am not required to consider whether the paragraphs 34(1)(a) to (e) of the Act are made out, as s34(1) is cumulative. I conclude that K is not a reasonable and necessary support for the purposes of subsection 34(1) of the Act. It follows that reimbursement for past years' expenses relating to K's maintenance, cannot be funded under FVCS's SOPS.

1. FVCS currently accesses the community using her V6 Frontier power wheelchair funded by the NDIS in 2022. Her request is for the Extreme X8 that can traverse sand to enable direct and free access to the beach. At the hearing FVCS confirmed that she seeks the newer power wheelchair model called the XT4.

1. I do not have an assessment before me regarding the model XT4, so I will confine my consideration to the Extreme X8 evidence. FVCS's request for the X8 was outlined in the Response to Targeted Questions completed by her Occupational Therapist Ms M. Ms M outlined that FVCS:

desires to have the ability to have a picnic on the beach, to take a book to read and to place herself in the shade of trees in the late afternoon, to be able to hear the waves, watch the people passing by, meeting new people and tourists and engaging in conversations and social interactions. She wishes to access the beach with her support workers and mobilise along the beach to chat with them and debrief about life.[38]

Does the Extreme X8 represent value for money in that the cost of the support is reasonable, relative to both the benefits achieved and the cost of alternative support?

1. Rule 3.1 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Support Rules) sets out the matters to be considered in deciding whether a 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.

1. For the purposes of Rule 3.1 of the Support Rules, a decision-maker is to consider the following matters:

a. Whether there are comparable supports which would achieve the same outcome at a substantially lower cost.

b. Whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant.

c. Whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports).

d. For supports that involve the provision of equipment or modifications:

(i) The comparative cost of purchasing or leasing the equipment or modifications; and

(ii) Whether there are any expected changes in technology or the participant's circumstances in the short term that would make it inappropriate to fund the equipment or modifications.

e. Whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides.

f. Whether the support will increase the participant's independence and reduce the participant's need for other kinds of supports.

1. As is clear from the above, the cost of a support is not the only consideration when assessing the value for money criteria. As set out in the Rules, a decision maker considers whether there are comparable supports that would achieve the same outcome at a substantially lower cost.

Rule 3.1(a) Supports Rules - Are there are comparable supports which would achieve the same outcome at a substantially lower cost?

1. The Respondent maintains that there are comparable supports available to FVCS that would achieve the same outcome, at a substantially lower cost. The Respondent's position is FVCS can currently access the boardwalk, the shade of a tree to read a book, watch the waves, people watch as well as accessing the beach in her current V6 as it is capable of travelling over rough terrain and on hard compact sand.

1. The Respondent also relies on Mr D, the Respondent's Occupational Therapist evidence that many beaches in the area are wheelchair accessible, noting he specifically points to 10 beaches up and down the coast that are accessible to FVCS in her existing V6 Frontier. Further, Mr D in his report notes that the only scenario the V6 Frontier is unsuited for is soft dry sand, due to its wheels.[39]

1. FVCS reiterated at the hearing she seeks the power wheelchair to attend the beach for her son's surfing competitions held approximately 4 times per year. She also gave evidence that her goal is to attend her local beach and move freely up and down the sand. FVCS gave evidence that she does not seek to visit the accessible beaches that Mr D outlined, with her preference being to access the beach closest to her home, as it is less crowded and more suited due to the effects of her PTSD.

1. During the hearing the Respondent acknowledged that FVCS may have a preference as to specific beaches, yet the range of beaches outlined by Mr D shows she does have accessible beaches available to her.

1. The Respondent contends that at approximately $33,000 the Extreme X8 does not represent value for money s 34(1)(c) relevant to the benefits achieved and cost of alternative support and does not take account of what is reasonable to expect the community to provide: s34(1)(e) of the NDIS Act.

1. The Respondent states it is not the role of the NDIS to provide supports in the nature of 'the improvement of community infrastructure, improving accessibility of the built and natural environment'.

1. I am satisfied that in FVCS's current V6 Frontier she can access the shade of trees to watch the water, read a book, people watch, and that there are accessible beaches available to her in her current V6 Frontier. While I accept the V6 Frontier is unsuited for dry soft sand, Mr D gave evidence that the V6 Frontier can travel along firm damp sand up and down the beach.[40] For the purposes of rule 3.1(a) I consider that the current V6 can therefore achieve the outcomes FVCS seeks, such as accessing the shade of trees to read a book, watch the water and travel along firm damp sand up and down the beach at a substantially lower cost.

Rule 3.1(b) Supports Rules - Will the Extreme X8 substantially improve the life stage outcomes for, and be of long-term benefit to FVCS?

1. The evidence before me is that FVCS requires a support worker with her when accessing the community. I do not consider that the evidence before me supports the view that the Extreme X8 will reduce FVCS's need for other kinds of supports in the longer term. The evidence does not persuade me that the Extreme X8 will reduce FVCS's need for other NDIS funded supports, such as additional support worker assistance either at home or in the community.

1. Overall, the evidence does not enable me to form the conclusion that there is a need that justifies outlay of public funds that is reasonably and necessarily addressed by the funding of the Extreme X8. Having regard to the above considerations, I am not satisfied that the funding of the Extreme X8 represents value for money for the purposes of subsection 34(1)(c) of the NDIS Act. The Extreme X8 is not a reasonable and necessary support and cannot be funded in FVCS's SOPS.

1. As I have determined that paragraph 34(1)(c) of the Act is not established, I am not required to consider whether the remaining paragraphs are made out.

1. Under s 33(2)(d) of the NDIS Act, a participant's SOPS is to specify the management of the funding for the supports under the plan. Section 43(2) of the NDIS Act states if a participant makes a plan management request, the statement of participant supports in the plan must give effect to the request, except to the extent set out in subsections (2A) to (6). Relevant here is Rule 3.5 of the National Disability Insurance Scheme (Plan Management) Rules 2013 (Plan Management Rules). Of relevance in this matter, sub-sections (4) and (4A) state as follows:

Nor will a participant be able to manage the funding for supports under their plan to a particular extent if the CEO is satisfied this would present an unreasonable risk to the participant.

1. Section 43(1) and (2) provides that a participant may make a "plan management request" for the plan to be managed, wholly, or to the extent specified by them, by the person themselves, a plan manager, or the NDIA. Section 43(4) provides that that if a participant makes a plan management request for the funding to "plan-managed", and s 44(2) applies in respect of the plan management service provider (that is, the plan manager), the SOPS must provide for the funding to "Agency-managed".

1. Section 44(2) of the NDIS Act is reproduced below:

For the purposes of paragraph 43(4A)(b), this subsection applies in relation to a registered plan management provider if the CEO is satisfied that the provider's management of the funding for supports under the plan to a particular extent would present an unreasonable risk to the participant.

1. FVCS has requested that the funding approved in her NDIS plan be plan-managed, and so I will consider whether s 44(2) applies.

1. The Respondent states that while at the Tribunal, FVCS has exhausted her entire core funding by March 2025, only 15 months into a 36-month plan. The Respondent contends that on 31 March 2025, FVCS was reminded of her obligations pursuant to s46 of the NDIS Act, and the Respondent approved additional funding to replenish the core funding. The Respondent states on 1 April 2025, FVCS acknowledged using funding for overnight support, despite this funding not being part of her plan.

1. Section 46 states NDIS funds must be spent on NDIS supports and in line with a participant's plan. On 4 April 2025, the Respondent advised FVCS that she does not have funding for overnight support, reiterating her obligations under s46 of the NDIS Act. On 16 June 2025, the Respondent varied FVCS's plan from plan-managed, to Agency-managed. The Respondent position is that FVCS's funding should remain as Agency-managed.

1. I have also considered the evidence provided by FVCS's support worker Ms C, who gave oral evidence explaining that she provides overnight support twice a week and has provided this level of support for the past three years.

1. FVCS gave evidence that she is using her funding for overnight support, despite this funding not being part of her plan. She contends that it is necessary due to her current needs and reiterated her preparation to gather the necessary evidence to apply for further core funding following the end of this Tribunal matter. This evidence does not change my view that plan-management presents an unreasonable to risk to FVCS.

1. I sought information at the hearing from the Respondent relating to the new 1-month funding periods, and whether this would mitigate the risk to FVCS. The Respondent advised that the 1-month funding periods still posed a risk to FVCS as she would have the ability to draw down the full months funding within the first week. The Respondent's position was that this would lead to the same risks, that funding for essential supports will continue to be spent early.

1. I am persuaded on the evidence before me that there is a risk to FVCS of exhausting her plan funding early, leaving her without support. I have considered that even if her plan was under plan management with the monthly scheduled funding periods, this unreasonable risk of depleting funding early is still present.

1. I find plan-management presents an unreasonable risk to FVCS. I accept the Respondent's contention that FVCS's funding should stay wholly "NDIA-managed".

1. The Tribunal affirms the decision under review pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth).

Solicitors for the Respondent: Mr P Papas, Moray and Agnew

[1] Item 4 and 6 of section 99 of the NDIS Act.

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

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

[6] Section 3(3)(b) and 4(17) of the NDIS Act.

[9] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [201]; McGarrigle v National Disability Insurance Agency [2017] FCA 308

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

[12] Item 138 of Schedule 1 to the Amending Act.

[13] Section 209(3)(a) of the NDIS Act.

[14] Section 209(3)(b) of the NDIS Act.

[15] Section 209(9)(e) of the NDIS Act.

[16] Sections 10(2) and (4) of the NDIS Act.

[18] Section 3(3)(b) and 4(17) of the NDIS Act.

[19] Section 34(1)(aa) of the NDIS Act.

[22] National Disability Insurance Agency and WRMF [2020] FCAFC 79 at [201]

[29] NDIS Operational Guidelines, Assistance Animals including dog guides, dated 25 March 2025, page 2.

[36] Transcript, day three 1:23:51 - 1:26:38.