1. Pursuant to subsection 105(c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with a direction that within 28 days of this decision HXHS's statement of participant supports specifies the following supports:
   1. Support worker assistance as follows:
      1. 10 hours per week for personal care at a weekday rate;
      2. 7 hours per week for 'Domestic Instrumental', comprised of 5 hours at a weekday rate, 1 hour at a Saturday rate, and 1 hour at a Sunday rate;
      3. 10.5 hours per week for Community & Civic Participation, comprised of 6 hours per week at a weekday rate and 4 hours per week at a Saturday rate; and 2 hours per month at a Sunday rate.
   2. 38 hours of speech therapy.
   3. The date by which the Agency must reassess HXHS's plan is to be 12 months after the date on which the supports in (a) and (b) above are included in HXHS's statement of participant supports.
   4. All other supports in HXHS's existing statement of participant supports are to be replicated pro rata from the date of this decision until the reassessment date.
   5. The management of funding in HXHS's plan is to remain the same as is specified in HXHS's current statement of participant supports.

Supports - support worker assistance - travel and accommodation for support workers - occupational therapy - speech therapy - psychology - avoidant/restrictive food intake disorder program - PTSD counsellor/psychotherapist - support coordination - NDIS self-education - short term accommodation - AFRID and PTSD residential treatment program - transport - Level 3; - Lego therapy - art therapy - music therapy - assistive technology - air conditioning system - car modifications - extended leg room/seating for passenger - relocation costs - stamp duty - removal costs - private health insurance - self-management of core budget supports - reasonable and necessary supports - consideration of section 34 National Disability Insurance Scheme Act 2013 (Cth) - decision remitted

Administrative Appeals Tribunal Act 1975 (Cth) s42D

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act) (Cth)

Administrative Review Tribunal Act 2024 (Cth) s105

National Disability Insurance Scheme Act 2013 (Cth) s10, s34, s35

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth) - s129

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 (Cth)

G v Minister for Immigration and Border Protection [2018] FCA 1229

McGarrigle v National Disability Insurance Agency [2017] FCA 308

National Disability Insurance Agency v WRMF [2020] FCAFC 79

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60

XYZ v Commonwealth [2006] HCA25; [2006] HCA 25; (2006) 227 CLR 532

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577

NDIS - Operational Guidelines - Reasonable and necessary supports

NDIS Pricing Arrangements and Price Limits 2025-6

NDIS - Operational Guidelines - Short Term Accommodation and Respite

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

1. HXHS, a 15-year-old child, is a participant in the National Disability Insurance Scheme ('the scheme').
2. On 25 November 2022 National Disability Insurance Agency ('the Agency') approved a Statement of Participant Supports (SOPS) for HXHS.[1] HXHS's SOPS contained the supports that he would be funded for under the scheme.
3. Dissatisfied with his SOPS, his mother 'M' applied to the Agency for an internal review of his SOPS. On 25 January 2023 the Agency conducted an internal review and confirmed its original decision ('the decision under review').
4. On 9 February 2023, HXHS, through M, applied to the Administrative Appeals Tribunal ('the AAT') for a review of the decision under review.
5. From 14 October 2024, the AAT became the Administrative Review Tribunal ('the Tribunal'). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise existing applications.
6. The Tribunal's review of this matter was undertaken 'on the papers' on 23, 24 and 25 September 2025 and pursuant to section 106 of the Administrative Review Tribunal Act 2024.

1. For the purposes of the Tribunal's review, HXHS sought funding for the following 21 supports:

(i) Support worker assistance;

• 25 hours each week, during the weekdays for 50 weeks for assistance with daily life,
• 6 hours each Saturday, for 50 weeks for assistance with social, economic and community participation,
• 4 hours per month, on Sundays for assistance with social, economic and community participation.

(ii) Funding for travel and accommodation for support workers to accompany HXHS and M to medical appointments and other appointments - $2,500.00;

(iii) 96 hours per year for occupational therapy;

(iv) 44 hours per year for speech therapy;

(v) 54 hours per year for psychology;

(vi) 25 hours per year for an avoidant/restrictive food intake disorder program ('AFRID program');

(vii) 36 hours per year with a PTSD counsellor/psychotherapist;

(viii) Support Coordination - 48 hours per year (Level 1) and 48 hours per year (Level 3);

(ix) NDIS Self-Education - subscriptions (12 x $100) and courses (4 x $650);

(x) Short Term Accommodation (STA) - 32 days;

(xi) The AFRID and PTSD Residential Treatment Program;

(xii) Transport - Level 3;

(xiii) Lego Therapy;

(xiv) 16-26 hours per year for Art Therapy;

(xv) 26 hours per year for Music Therapy;

(xvi) Assistive Technology (Level 1) (items not specified) and Assistive Technology (Level 2) (software and headphones to connect the Applicant's phone to headphones);

(xvii) Supply and Installation of Air Conditioning system - $2,450;

(xviii) Car Modifications - Extended Leg Room/Seating for Passenger - $3,000;

(xix) Relocation Costs;

(xx) Private Health Insurance

(xxi) Self-management of core budget supports.

1. The issues before the Tribunal are whether these supports are 'reasonable and necessary supports' under section 34 of the National Disability Insurance Act 2013 ('NDIS Act').

THE NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 (CTH)

1. Section 34 of the NDIS Act identifies what constitutes a 'reasonable and necessary' support under the scheme.
2. At the time of the application to the AAT, section 34 of the NDIS Act provided 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 such support:

(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 most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

(i) as part of a universal service obligation; or

(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

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

1. On 3 October 2024, and prior to the completion of this review, the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 ('the Amending Act') made a range of 'amendments' to the NDIS Act_._
2. These amendments in respect of the requirements pursuant to section 34 of the NDIS Act will apply to this review.[2]
3. Section 34 of the NDIS Act, as amended, provides as follows (emphasis of amendments added by the Tribunal):

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

• (aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see 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.

(g) Note: For the purposes of paragraph (aa):

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

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

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

1. The phrase 'reasonable and necessary' is not defined in the Act. It is a composite phrase and should be considered as such. In McGarrigle, Mortimer J also stated as follows:[3]

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

1. The Full Court in National Disability Insurance Agency v WRMF[4] also considered the meaning of reasonable and necessary supports, and stated as follows [149]-[151]:

The phrase is a composite phrase. We accept the Agency's submissions that each limb of the phrase should be given work to do. That task is not difficult, or complicated with these two particular words, which are readily understood as conveying different meanings. However, the Parliament has chosen to use a composite phrase rather than to stipulate two distinct requirements, and therefore, as Gleeson CJ cautioned in XYZ v Commonwealth [2006] HCA25; [2006] HCA 25; (2006) 227 CLR 532 at [19], '[t]here are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts'.

... Both adjectives qualify the noun "support", but they do so as a composite phrase. It is not fruitful to split them off and consider them separately, just as it is neither fruitful nor appropriate to attempt any exhaustive or authoritative judicial definition of them.

Nevertheless, there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate. (Tribunal emphasis)

1. Section 34(1) of the NDIS Act is cumulative and therefore all the criteria must be met.
2. Subsection 34(1)(aa) of the NDIS Act, which is an amendment, imposes an additional requirement of the criteria. This additional requirement is the consideration of whether the support is necessary to address the needs of HXHS which arise from the impairment/s for which HXHS meets the disability requirements.
3. Subsection 34(1)(f) of the NDIS Act is also an amendment; however, it is a replacement of an 'old provision' with a 'new provision'.
4. This new provision of subsection 34(1)(f) of the NDIS Act requires that the support is an 'NDIS support'.
5. Section 10 to the NDIS Act, made pursuant to the Amending Act provides a definition of what constitutes an 'NDIS Support' for the purposes of subsection 34(1)(f) of the NDIS Act (as amended). Section 10 of the NDIS Act provides as follows:

Supports that are NDIS supports

(1) Subject to subsections (4) and (9), a support is an NDIS support for a person who is a participant or prospective participant if the support is declared by National Disability Insurance Scheme rules made for the purposes of this subsection to be an NDIS support for:

(a) participants or prospective participants generally; or

(b) a class of participants or prospective participants that includes the person.

(h) Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

(2) Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (1), the Minister must be satisfied:

(a) for rules to which paragraph (1)(a) applies--that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or

(b) for rules to which paragraph (1)(b) applies--that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

(3) National Disability Insurance Scheme rules may declare a support for the purposes of subsection (1) only if at least one of the following applies:

(a) the declaration of the support implements Australia's obligations under:

(i) the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006; or

(ii) any other agreement with one or more other countries;

(b) the declaration of the support enables the provision of sickness benefits.

(i) Note: For subparagraph (a)(i), the Convention on the Rights of Persons with Disabilities is in Australian Treaty Series 2008 No. 12 ([2008] ATS 12) and could in 2024 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

Supports that are not NDIS supports

(4) The National Disability Insurance Scheme rules may declare that a support is not an NDIS support for:

(a) participants or prospective participants generally; or

(b) a class of participants or prospective participants.

(j) Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

(5) Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (4), the Minister must be satisfied:

(a) for rules to which paragraph (4)(a) applies--that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or

(b) for rules to which paragraph (4)(b) applies--that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

(6) The CEO may determine, in writing, that a support is taken to not be declared under subsection (4) in relation to a participant if:

(a) the support is prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and

(b) the support would, apart from subsection (4), be an NDIS support for the participant; and

(c) the participant applies to the CEO in accordance with subsection (7) for the determination; and

(d) the CEO is satisfied that:

(i) the support would replace one or more other supports that are NDIS supports for the participant; and

(ii) the cost of the support is the same or lower than the total of the costs of the supports it would replace; and

(iii) the support would provide the same or a better outcome for the participant than the supports it would replace; and

(iv) any other conditions specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph are met in relation to the support, the participant, or both.

(k) Note 1: A determination may be revoked under subsection 33(3) of the Acts Interpretation Act 1901.

(l) Note 2: The National Disability Insurance Scheme rules may prescribe a support for the purposes of paragraph (a) by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

(a) be in the form (if any) approved by the CEO; and

(b) include any information, and be accompanied by any documents, required by the CEO; and

(c) be made in accordance with any other requirements specified in the National Disability Insurance Scheme rules for the purposes of this paragraph, which may include requirements as to the circumstances in which an application may, or may not, be made.

(8) The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of subsection (6), including by prescribing requirements with which the CEO must comply, methods or criteria that the CEO is to apply, or matters that the CEO may, must or must not take into account, in deciding whether to make a determination under that subsection.

(9) A support is not an NDIS support for a participant or prospective participant if the support consists of the provision of:

(a) sexual services; or

(b) alcohol; or

(c) drugs, the possession of which is a contravention of a law of the Commonwealth, a State or a Territory.

1. Subsection 34(2) of the NDIS Act provides that the NDIS Rules may prescribe methods or criteria to be applied, or matters to which the CEO must have regard, in deciding whether the criteria under subsection 34(1) of the NDIS Act are met in respect of a requested support.
2. Section 35 of the NDIS Act provides for the making of rules in relation to prescribing reasonable and necessary supports or general supports that will not be funded or provided under the NDIS. The relevant rules in respect of this review are the:
   • National Disability Insurance Scheme (Supports for Participants) Rules 2013 ('Supports Rules'); and
   • National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 ('Transitional Rules').
3. In McGarrigle v National Disability Insurance Agency[5] at [43], Mortimer J (as Her Honour then was) made the following observations in respect of the NDIS Rules:

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

1. Subsection 10(1) of the NDIS Act provides that a support is an NDIS support (for the purposes of subsection 34(1)(f) of the NDIS Act) if it is declared by the 'National Disability Insurance Scheme rules' to be an 'NDIS Support'.
2. Subsection 10(4) of the NDIS Act provides that the National Disability Scheme rules may also declare that a support is not an 'NDIS support'.
3. The National Disability Insurance Scheme rules relevant to Section 10 of the NDIS Act the Transitional Rules.

1. Schedule 1 to the Transitional Rules identifies supports that are NDIS supports unless otherwise provided, for the purposes of subsection 10(1) of the NDIS Act. Schedule 2 to the Transitional Rules identifies supports that are generally not NDIS supports for the purposes of subsection 10(4) of the NDIS Act.
2. The use of the word 'generally' in Schedule 2 to the Transitional Rules is not relevant to this review. It refers to the mechanism whereby a participant may apply to the Agency for a 'Replacement support determination'.[6] This mechanism is currently confined to the following supports:
   • Standard commercially available household items;
   • Smart watches;
   • Tablets;
   • Smartphones; and
   • An app used for accessibility or communications purposes
3. Relevantly for the purposes of this review in determining whether a support is an NDIS support, the Tribunal's first task is to consider whether the support is not an NDIS support by the operation of Schedule 2 to the Transitional Rules. On the basis the support does not fall within Schedule 2 to the Transitional rules only then is it necessary for the Tribunal to consider whether the support falls within the ambit of Schedule 1 to the Transitional Rules. [7]

1. The Agency issues Operational Guidelines in relation to what are considered 'reasonable and necessary supports' in a participant's plan. There is no power conferred by the Act to make these Operational Guidelines, and they are issued in an exercise of executive power.[8] The Tribunal is therefore not bound by any policy set out in the Agency's Operational Guidelines. However, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[9] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[10] where Mortimer J held:[11]

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

1. Accordingly, unless the Operational Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in a determination of what is a reasonable and necessary support for HXHS. The Guidelines relevant to this review are the:
   • NDIS - Operational Guidelines - Reasonable and necessary supports.

1. The Parties were unable to agree on a joint bundle of documents. The Respondent however filed an indexed bundle of documents which included documents filed by the Applicant.[12] On 17 April 2025 the Tribunal directed that the Applicant file all evidence intended to be relied upon by 17 April 2025. Notwithstanding this Direction M continued to file further documentation. In light of M's conduct on 19 September 2025, and pursuant to section 53 of the Administrative Review Tribunal Act 2024, the Tribunal ordered that only material submitted by either party up to and including 19 September 2025 would be considered for the purpose of this review.
2. I have considered all the written evidence filed with the Tribunal.[13] I will refer in my decision to some of the more salient aspects of the evidence. The fact however that I do not refer to all parts of the evidence does not mean that I have not taken all evidence before the Tribunal into account in reaching my decision.

1. HXHS has a diagnosis of autism spectrum disorder - level 2 ('ASD').
2. HXHS lives in a metropolitan area with his mother 'M' who is 68 years of age and his older sister **'**S'. HXHS and his family recently relocated form a rural area so that S could attend a university located in this metropolitan area..
3. 'M' is also a participant in the scheme.
4. **'**S' is 18 years of age and provides significant informal support to both HXHS and M.[14]
5. HXHS's difficulties due to his ASD include the following:
   • Sensory overload and processing difficulties;
   • An inability to regulate emotions;
   • Difficulty articulating his feelings;
   • Communication difficulties;
   • Disorganisation and difficulty prioritising tasks;
   • Impaired cognitive functions;
   • Repetitive behaviours;
   • Anxiety in social situations;
   • Decreased volition to engage in daily activities.[15]
6. M's goals for HXHS in his SOPS are as follows:
   • To be able to advocate for himself, increase his speech and be understood in communication and social activities;
   • To be able to identify and self-regulate his emotions;
   • To develop coping skills to manage his sensory needs and high levels of anxiety;
   • To become more independent and to learn strategies that enable him to maintain tasks performed in daily life activities.[16]

Are the supports sought necessary to address the needs of HXHS arising from the impairment in relation to which he met the disability requirements? - Subsection 34(1)(aa) of the NDIS Act

1. HXHS was granted access to the scheme on the basis of meeting the disability requirements pursuant to subsection 24(1) of the NDIS Act.[17] In this regard, the Agency was satisfied that HXHS had a neurological impairment arising from his diagnosis of autism level 2.
2. The evidence supports and I accept the diagnosis of ASD.
3. Based on the evidence, I am satisfied that HXHS meets the disability requirements on the basis of a neurological impairment due to ASD.
4. On this basis, for the purposes of subsection 34(1)(aa) of the NDIS Act, only supports that are necessary to address HXHS's needs that arise as a result of his neurological impairments due to ASD can be included in his SOPS.

1. HXHS's current funding is comprised as follows:
   • 10 hours per week, during the weekdays, for assistance with daily life;
   • 2 hours each Saturday for social, economic and community participation.[18]
2. This current funding can be used flexibly.
3. M seeks funding for the following support worker assistance for HXHS;
   • 25 hours per week, during the weekdays, for 50 weeks per year for assistance with daily life;
   • 6 hours each Saturday for social, economic and community participation; and
   • 4 hours each month on Sundays also for social, economic and community participation.

1. In her report dated 2 February 2024 Ms Sarah Smith, speech pathologist recommended ongoing support worker services to support HXHS with community access and to prevent the risk of carer breakdown.[19]

1. Ms Ashleigh Mobbs, occupational therapist assessed HXHS in February 2023 and provided a report dated 31 March 2023.[20]
2. A WHODAS assessment of HXHS by Ms Mobbs indicated that HXHS had an overall severe functional impairment as a result of his disability. Relevant to this review Ms Mobbs described HXHS as having 'moderate difficulties with activities of daily living.' (Tribunal emphasis)
3. Based on her assessment Ms Mobbs provided the following recommendation in relation to funding for support worker assistance for HXHS:
   • Four hours per day, 7 days a week for self-care, including showering, dressing and eating to prevent carer breakdown and build capacity;
   • Six hours per week for domestic tasks including cleaning, meal preparation, laundry and money management;
   • An unspecified allowance for community access.

1. Ms Melissa Crawford, occupational therapist assessed HXHS on 25 January 2024 and provided a report.[21]
2. Ms Crawford conducted a Functional Independent Measure Assessment of HXHS and reported as follows:
   • HXHS achieved a 'Total Self-care Score' of 35/56. This score indicated that HXHS required 'minimal contact assistance' from another person to carry out his activities of daily living. (Tribunal emphasis) In this regard, Ms Crawford recommended support worker assistance to support HXHS to complete his morning routines and self-care tasks including breakfast and food consumption;
   • HXHS achieved a 'Total Mobility Score' of 33/35. Ms Crawford recommended support from an exercise physiologist to assist HXHS with increasing his level of physical activity to promote his weight management and reduce his risk of developing lifestyle diseases. Ms Crawford also recommended weekly personal training to support HXHS to be active and also to implement an exercise physiology home-based program. Relevantly Ms Crawford's opinion was that a support worker would not be appropriate to implement an exercise physiology program due to HXHS's health conditions and disability and also in light of the need to ensure that HXHS exercised safely;
   • HXHS achieved a "Total Communication Score" of 4/14 indicating that HXHS had significant expressive and receptive language challenges. In this regard Ms Crawford recommended speech therapy to improve HXHS's receptive and expressive language so that he can become more independent and confident in his communications with others. Ms Crawford also recommended occupational therapy to assess HXHS's handwriting and to consider any appropriate assistive technology;
   • HXHS achieved a "Total Social Cognition Score' of 6/21 indicating that HXHS did not have the appropriate skills to engage appropriately in social environments. Ms Crawford recommended the following supports;
     • ongoing psychology to support HXHS to better understand his feelings and emotions and to develop the appropriate tools to express his emotions and communicate with others
     • Behaviour support to support HXHS's behaviours of concern and develop appropriate tools and techniques to manage these behaviours
     • Support to engage in structured social interactions with his peers, including day group programs to facilitate a greater social network for HXHS
     • 1:1 support worker assistance to support HXHS with community and social participation/access
     • Occupational therapy to assist HXHS with his independence and self-management and in doing so provided him with the skills to identify and manage problems appropriately. Also to improve his working memory and executive functioning and support his sensory functioning
     • Intensive therapy programs which are specialised, goal directed and multi-disciplinary.
3. Ms Crawford's Functional Independent Measure Assessment concluded that HXHS had an overall 'Total Functional Independent Measurement' score of 76/126. Ms Crawford explained that this score indicated that HXHS required verbal and physical assistance to support him in up to 50% of his motor and cognitive functions. This included supervision, set-up assistance, hands-on assistance and verbal prompting. Ms Crawford stated that, 'HXHS requires capacity building and core supports to help him to learn and build his skills to enable greater independence and increase participation in his activities of daily living.'
4. A WHODAS assessment by Ms Crawford indicated an overall score of 77% for HXHS which corresponded to HXHS having an extreme functional impairment and required significant daily support for personal care, domestic assistance, social and community access.
5. Ms Crawford's report concluded that HXHS had high support needs and severe dependence across all domains. Ms Crawford's recommendations can be summarised as follows:
   • 1 hour per fortnight of speech therapy to increase HXHS's independence with his receptive and expressive language, together with education and training to his school. Also 10 hours for an assessment, recommendation, resource development and education guide;
   • 2 hours per day, during the weekdays to support HXHS with maintaining his hygiene and attending to his morning and selfcare routine;
   • 10 hours per week, during the weekdays, of 1:1 support worker assistance to support HXHS with accessing the community, engaging in social programs and attending therapy;
   • 6 hours per week (on a Saturday) of 1:3 social and community access;
   • 8 weeks per year (5 days per week) of access to a school holiday group day program;
   • 16 hours of psychology funded under the scheme in conjunction with 10 hours funded under Medicare;
   • 30 hours for a Behaviour Support Plan;
   • 30 hours for training and implementation of a Behaviour Support Plan;
   • Occupational therapy comprised as follows:
     • 20 hours for an assessment and recommendations in relation to HXHS's sensory and learning needs, including assistive technology recommendations and education and training to HXHS's school; and
     • 1 hour per fortnight to increase HXHS's ability to complete self-care and self-management tasks
   • 30 hours for an Intensive Therapy Program to enhance HXHS's progress and skills in all areas of life.
   • 40 hours of support coordination to support connecting HXHS with providers that can help him achieve his goals;
   • 6 hours per year of exercise physiology to assist HXHS with developing his endurance strength and support him with weight management;
   • 1 hour per week of personal training; and
   • 12 hours per year with a dietician.

1. Dr Rosemary Colston provided reports in her capacity as HXHS's treating psychologist.[22]
2. In her report dated 21 October 2024, Dr Colston, recommended for HXHS, 'Support worker support allowance to 32 hours per week to facilitate these goals and interests, including funding allowance for 12 hours of weekend support as this is the time that he needs the most support'[23]

1. Ms Jaimee Leggett, occupational therapist assessed HXHS in July 2024 and provided a report dated 20 January 2025.[24] Ms Leggett provided the following recommendation in relation to support worker assistance for HXHS:
   • Up to 14 hours per week for assistance with daily activities: up to 14 hours per week;
   • Up to 15 hours per week for assistance with Social and Community Participation.

1. Ms Christine Tracey, occupational therapist also considered HXHS's funding for support worker assistance and provided a report dated 29 April 2024. Ms Tracey's report included the following opinion:[25]
   • HXHS requires core support for the assistance with self-care activities, support for transport to school, support for community activities and for practice of capacity building skills as recommended by occupational therapy;
   • HXHS's current plan reasonably provides 12 hours of core supports, based on the brief provided. In this regard, Ms Tracey referred to the following components:
     • Up to 4 hours per week for sporting/community activities (up to 2 hours on a weekday and 2 hours on a Saturday when sporting events usually occur);
     • Travel to and from school each day (1-3 hours), dependent on whether his mum worked;
     • Self-care activities (1.5 hours per week or 30 minutes per day, 3 days per week);
     • Development of social and self-management skills, as per capacity building recommendations (1 hour of practice for 3 days per week - total of 3 hours per week).[26]
   • HXHS would benefit from 2 Soul Shack camps, in addition to capacity building supports being provided in the home environment;
   • Additional funding may be required for the 2 Soul Shack camps and transport to and from the camps should be provided;
   • Capacity building for occupational therapy has been reasonably allocated 45 hours. A blended approach of face-to-face intervention in the home and telehealth was recommended by Ms Tracey for occupational therapy interventions.
2. Ms Tracey's report provided the following caveats, made in relation to teenagers 'generally':
   • Teenagers may require reminding to have a shower, to brush teeth or eat properly;
   • The majority of household tasks are 'emerging or developing skills for a teenager';
   • Teenagers without a disability may require reminders or direction from parents to complete or learn household tasks.
3. When asked to review Ms Crawford's report [27] and Dr Colston's report[28] Ms Tracey subsequently provided a supplementary report:[29] In her supplementary report Ms Tracey provided the following further opinion:
   • I continue to agree that HXHS requires daily support from his mother, sister or a support worker, however 1 hour is a reasonable time to complete self-care tasks and eating. Further support worker hours, should be combined with programs recommended through capacity building therapies. 2 hours daily would therefore be considered reasonable.
   • Ms Tracey agreed with Ms Crawford's recommendation of 10 hours of 1:1 support worker support for community and social access per week;
   • She considered that 8 weeks a year in a Holiday Group Day Program would be excessive;
   • Having considered HXHS's exemption from attending school she agreed with Ms Crawford's recommendation of the following support:
     • assessment, recommendation, provision of resource development and an education guide - (20 hours)
     • intensive therapy block to enhance HXHS's progress and skills in all areas of life (3 hours / day for 10 days) - 30 hours
     • development of self-care and self-management tasks (1 hour per fortnight).[30]

1. Ms Phi Van Houston, occupational therapist provided a report dated 4 June 2025.[31] Ms Van Houston's report was prepared on the papers and I am satisfied included a thorough analysis and assessment of all material before the Tribunal.
2. Ms Houston stated:

Based on the information provided within the various Functional Capacity Assessment reports reviewed, it is evident that the Applicant has the physical capacity to undertake all self-care and domestic activities of daily living, as well as knowledge and understanding of the steps required to complete these tasks, however he is reported to need constant verbal prompting and supervision to support him to initiate and remain engaged in a task, particularly those that do not hold high interest value to him.

1. Ms Houston identified that whilst it had been suggested that HXHS's lack of 'volition' in relation to self-care and domestic tasks is attributable to diagnoses of depression, anxiety and rigid thinking due to ASD 'it is also important to consider that the Applicant's behaviour surrounding the completion of tasks is somewhat typical of many adolescents of the same age when presented with tasks that would be considered menial domestic duties_.'_ (Tribunal emphasis)
2. Ms Houston considered it age appropriate and reasonable that at the age of 14 years HXHS would still require parental intervention to plan, initiate and complete many activities as part of his skill development.
3. In relation to HXHS's need for prompting to initiate meal preparation, Ms Houston stated 'I would consider that this would be a typical observation within many households with teenage children'.[32]
4. Ms Houston further stated:

I am of the opinion that many of the instances of verbal prompting required to remind the Applicant to initiate meal preparation, self-care or other domestic activities would fall under the general responsibilities of a parent of a 14-year-old child, and could still be provided by his mother, at times when they are both at home together and this responsibility should not fall entirely onto a support worker.

1. Based on her review, Ms Houston's opinion was that the following support worker assistance is a reasonable and necessary support for HXHS:
   • 10 hours per week during the weekdays for 'personal care' for 6 months; and thereafter reducing to 5 hours per week for another 6 months. This support would be for the purposes of verbal prompting and supervision to complete self-care activities such as grooming, bathing, dressing and eating during the weekdays. Ms Houston considered that on the weekend this prompting could reasonably be provided by either M or S;
   • 7 hours per week for 'Domestic Instrumental' support, comprised of 5 hours at a weekday rate, 1 hour at a Saturday rate, and 1 hour at a Sunday rate. This would be for the purposes of assisting HXHS with working towards basic independence in domestic tasks such as cleaning his bedroom, laundry and meal preparation;
   • 10.5 hours per week for Community & Civic Participation comprised of:
     • 6 hours per week during the weekdays;
     • 4 hours each Saturday; and
     • 2 hours per month for support on a Sunday.

1. The Agency submits that the following support worker assistance is a reasonable and necessary support for HXHS:
   • 10 hours per week for personal care at a weekday rate (2 hours per weekday) for the first 6 months;
   • 5 hours per week for personal care at a weekday rate (1 hour per weekday), for the subsequent 6 months;
   • 7 hours per week for 'Domestic Instrumental', comprised of 5 hours at a weekday rate, 1 hour at a Saturday rate, and 1 hour at a Sunday rate;
   • 10.5 hours per week for Community & Civic Participation, comprised of 6 hours per week at a weekday rate and 4 hours per week at a Saturday rate; and 2 hours per month at a Sunday rate.[33]
2. I note specifically in relation to 'personal care' the Agency proposes 1:1 support worker assistance for an initial 6-month period to assist with self-care activities such as grooming, bathing, dressing and eating/feeding. After 6 months, the Agency proposes a reduction to 5 hours per week for 'personal care' on the basis HXHS would have developed further skills after the initial 6 months.
3. The Agency also contends that on weekends, it would be reasonable for prompting to be provided by HXHS's mother or sister.
4. In relation to funding for 7 hours per week for 'Domestic Instrumental', the Agency explains that this funding is comprised of 1 hour per day of 1:1 support, working towards independence in basic domestic tasks, such as HXHS cleaning his own room, completing laundry and meal preparation, in preparation for adulthood.
5. In relation to 10.5 hours per week for Community & Civic Participation the Agency explains this funding is comprised of 6 hours per week at a weekday rate (2 hours x 3 times per weekday) and 4 hours per week on a Saturday together with 2 hours per month at a Sunday rate.

1. The reports of Ms Tracey, Ms Crawford and Ms Houston were persuasive. Whilst Ms Tracey and Ms Crawford had the benefit of telehealth reviews, I am satisfied that Ms Houston conducted a thorough and detailed analysis and assessment of the documentation and assessments relevant to HXHS's functional capacity.

1. In respect of funding for social and community participation Ms Crawford recommends 10 hours each week with a 1:3 shared component on the weekend for 6 hours. Ms Tracey, in her supplementary report agreed with Ms Crawford's recommendation of 10 hours of 1:1 support worker support for community and social access per week. Ms Houston similarly recommended funding of 10.5 hours per week.
2. I note no specific recommendation was made by Ms Mobbs in relation to funding for assistance with social and community participation. Further, that the recommendation in respect of assistance for social and community participation by Ms Leggett was not definitive and was stated to be as 'up to 15 hours'.
3. On balance I am satisfied that the Agency's proposal of 10.5 hours per week for assistance with social and community participation is reasonable and proper and represents a component based on majority expert opinion.

1. In relation to funding for support worker assistance with activities of daily living I recognise there to be 2 components. The first being self-care tasks, including tasks such as grooming, bathing, dressing and eating. The second component being in relation to domestic tasks such as meal preparation, laundry and cleaning.
2. In relation to self-care tasks Ms Crawford recommends 10 hours each week, being 2 hours for 5 days of the week. Ms Houston provides a similar recommendation which is halved after a period of 6 months on the assumption HXHS will have developed capacities in this domain after an initial 6 months of support. Ms Tracey recommends 1 hour each day, every day of the week. Ms Leggett again was not definitive and her recommendation was stated to be as 'up to 14 hours'.
3. I do not consider it appropriate to adopt Ms Houston's recommendation of halving support for activities of daily living after 6 months. This is on the basis of the following:
   • The opinions of Ms Tracey and Ms Crawford both conclude a higher level than 5 hours per week. In this regard I am mindful that HXHS's SOPS will be reviewed in 12 months and adjustments can be made at that time should HXHS's capacities in this domain in fact improve;
   • I am conscious that M is a participant in the scheme and struggles with her own disabilities which in turn affect her capabilities as a parent. The halving of this as a support further exposes M to a risk of carer burnout.[34]
   • I am conscious that S, as a young adult pursuing university studies, should not be unreasonably burdened with a level of informal support beyond what is reasonable to expect (and which is most likely to occur) in the context of a reduction in funding for this component.[35]
4. In relation to domestic tasks the opinions of Ms Tracey and Ms Houston are significantly weighted. I accept that teenagers generally, irrespective of whether they are affected by a disability, require a level of prompting and assistance by parents and that this is within the confines of an ordinary parental role and responsibility. I am however persuaded by Ms Houston's recommendation of 7 hours per week for 'Domestic Instrumental' support so that HXHS may work towards independence in basic domestic tasks, such as cleaning his own room, completing laundry and meal preparation in preparation for adulthood.

1. Exercising my decisional freedom[36] the following funding for support worker assistance is a reasonable and necessary support for HXHS and should be included in his SOPS:
   • 10 hours per week for personal care at a weekday rate (2 hours per weekday);
   • 7 hours per week for 'Domestic Instrumental', comprised of 5 hours at a weekday rate, 1 hour at a Saturday rate, and 1 hour at a Sunday rate;
   • 10.5 hours per week for Community & Civic Participation, comprised of 6 hours per week at a weekday rate and 4 hours per week at a Saturday rate; and 2 hours per month at a Sunday rate.

Travel and accommodation for support workers to accompany HXHS and his mother to medical appointments in Brisbane and Perth

1. M seeks funding for support workers to travel and accompany HXHS and herself to medical appointments in Brisbane and Perth. This request also includes funding for any associated accommodation.
2. I am satisfied that this support sought does not represent value for money in accordance with the requirements of subsection 34(1)(c) of the NDIS Act. The Agency's submission that HXHS's support worker hours funded in HXHS's SOPS can be used flexibly to fund 'locally' based support workers, once HXHS has arrived at a destination, for assistance is accepted. Any additional funding for the purpose, as proposed by M amounts to an unnecessary duplication of funding and disregards the objects of the scheme and the need to ensure its financial sustainability.[37]
   1. Having failed to meet subsection 34(1)(c) of the NDIS Act and in the context of the cumulative operation of section 34(1) of the NDIS Act, the consideration of all other criteria is unnecessary.

1. Funding for support workers to accompany HXHS and M to medical appointments in Brisbane and Perth, including funding for any associated accommodation is not a reasonable and necessary support for the purposes of Section 34(1) of the NDIS Act and cannot be included in HXHS's SOPS.

96 hours per year for an occupational therapist

1. The dispute between M and the Agency relates to the number of hours of occupational therapy for HXHS as a reasonable and necessary support.
2. HXHS is funded for 45 hours of occupational therapy in his current SOPS.
3. M however seeks funding of 96 hours of occupational therapy for HXHS.
4. Ms Smith, speech therapist recommended occupational therapy to support and monitor HXHS's emotional regulation, functional motor skills, and activities of daily living.[38]
5. In March 2023 Ms Mobbs, occupational therapist, recommended occupational therapy intervention 45 hours per year. This recommendation included telehealth therapy sessions, progress assessment/reports and case management.[39]
6. In February 2024 Ms Tracey, occupational therapist recommended 45 hours per year of occupational therapy.[40]
7. Ms Crawford, occupational therapist, made the following recommendation in January 2024:
   • 20 hours for an assessment and recommendations in relation to HXHS's sensory and learning needs, including assistive technology recommendations and education and training to HXHS's school;
   • 1 hour per fortnight to increase HXHS's ability to complete self-care and self-management tasks;
   • 2 hours per day, during the weekdays to assist HXHS maintaining and attending to his morning and self-care routine; and
   • 30 hours for an Intensive Therapy Program to enhance HXHS's progress and skills in all areas of life.[41]
8. In January 2025, Ms Jaimee Leggett, occupational therapist, recommended ongoing face-to-face occupational therapy services to enable HXHS to build his capacity with self-care and age appropriate domestic tasks. In the context of HXHS residing in a rural location at the time of her assessment, Ms Leggett suggested that HXHS's treating occupational therapist would be best placed to dictate the number of hours required for this support.[42]
9. Ms Houston's recommendation in June 2025 was made on the basis of HXHS having relocated to a metropolitan area. For this reason Ms Houston referred to an increased accessibility for 'face-to-face appointments' resulting in more support for engagement in occupational therapy sessions.[43]
10. Ms Houston recommended 74 hours for occupational therapy, comprised of the following components:
    • An initial intensive in-home occupational therapy of 2 hours per week for 4 weeks; plus 10 hours report writing/resource development, and up to 4 hours of travel (22 hours).
    • Fortnightly 1-hour sessions for 23 weeks (assuming HXHS will be away 2 weeks for camps) and up to 23 hours' travel - total: (46 hours).
    • Annual occupational therapy review/assessment 6 weeks prior to plan review and report outlining progress made, current level of functioning, proposed further intervention/recommendations, plus up to 1 hour's travel (6 hours).

1. The Agency submits that the following 31 hours of face-to-face occupational therapy is a reasonable and necessary support for HXHS:
   • 2-hour sessions for 4 weeks to allow for an intensive block of therapy for an assessment to explore HXHS's sensory and learning needs (8 hours);
   • 1-hour fortnightly session for 23 weeks, noting that HXHS has already been funded to attend Soul Shack camps for 2 weeks (23 hours).
2. In respect of funding for travel, the Agency refers to the NDIS Pricing Arrangements and Price Limits 2025-6 ('PAPL')[44] which state:

Where a provider claims for travel time in respect of a support then the maximum amount of travel time that they can claim for the time spent travelling to each participant (for each eligible worker) is 30 minutes in MMM1-3 area and 60 minutes in MMM4-5 areas.

In addition to the above travel, providers delivering core and capacity-building supports are permitted to claim for provider travel in respect of a support item can also claim for the time spent travelling from the last participant to their usual place of work. Note, this travel is only claimable when the provider must pay their worker for the return travel time. The maximum amount of travel time that they can claim for the time spent on return travel (for each eligible worker) is 30 minutes in MMM1-3 areas and 60 minutes in MMM4-5 areas. (Note the relevant MMM classification is the classification of the area where the participant is when the support is delivered.)

For therapy supports providers, including early childhood therapy, the price limit for provider travel time is 50% of the regular price limit for these items. For example, if a speech pathologist travelled for 1 hour in an MMM5 area to deliver support to a participant, the maximum claimable for this travel time component would be $97.00 (which represents 50% of the direct hourly price limit of $193.99). This does not impact the amount that can be claimed for non-labour costs.

Where a worker is travelling to provide services to more than one participant in a 'region', then it is reasonable for a provider to apportion all of the travel time (including the return journey where applicable) between the participants who received support from the worker. This apportionment should be agreed with each participant in advance as part of the service agreement.

1. The Agency identifies that HXHS resides in a metropolitan area which is an MMM-1 area. Having regard to the PAPL and in consideration of apportionment of travel between other participants in the same region, the Agency submits that funding of 5 hours for travel would meet the reasonable and necessary criteria in section 34(1) of the NDIS Act.
2. The Agency further submits that funding of up to 2 hours is sufficient for an occupational therapist to meet any reporting requirements.

1. Based on the evidence I am not satisfied that following funding of 96 hours for occupational therapy is a reasonable and necessary support for HXHS.
2. Based on the evidence and exercising my decisional freedom,[45] I consider that the following funding for occupational therapy is a reasonable and necessary support for HXHS:
   • 2-hour sessions for 4 weeks to allow for an intensive block of therapy for an assessment to explore HXHS's sensory and learning needs (8 hours);
   • 1-hour fortnightly sessions for 23 weeks;
   • 9-12 hours for travel; and
   • 2 hours for report requirements.
3. My considerations are as follows:
   • I am persuaded by the opinions of Ms Mobbs and Ms Tracey;
   • The recommendation of Ms Houston insofar as an intensive therapy for 4 weeks thereafter followed by 1 hour fortnightly therapy is also persuasive;
   • On the basis that HXHS has relocated to a metropolitan area I am satisfied that face-to-face therapy will be more beneficial for HXHS as compared to telehealth. As such funding for travel per se for each of these therapy sessions is a reasonable component.
   • Having regard to the PAPL and the likelihood of apportionment of travel between other participants I do not accept the Agency's submission and consider a discounted allowance of 5 hours for travel as inadequate;
   • I am satisfied that an allowance of 9 -12 hours for travel should be funded. This is of course calculated as an estimate, but it is based on the assumption that on any given working day an occupational therapist would attend with between 3 to 4 participants;
   • I accept the Agency's submission of 2 hours as being sufficient for an occupational therapist's reporting requirement. I consider Ms Houston's allowance for this component is excessive;
   • I note that the Agency proposes no variation to the current funding of 45 hours of occupational therapy which I consider is a reasonable and proper approach having regard to the evidence.

1. Funding of 96 hours of occupational therapy for HXHS is not a reasonable and necessary support for the purposes of section 34(1) of the NDIS Act and should not be included in HXHS's SOPS.

1. The dispute between M and the Agency again relates to the number of hours of funding of speech therapy for HXHS as a reasonable and necessary support.
2. HXHS is funded for 26 hours of speech therapy in his current SOPS.
3. M however seeks funding of 44 hours of speech therapy for HXHS, which is inclusive of assessment, therapy and report writing. M states that the purpose of speech therapy is to help HXHS increase his expressive receptive and pragmatic communication skills, also his social communication and network of friends.[46]
4. Ms Crawford, occupational therapist recommends speech therapy be provided HXHS to support him in relation to his 'fussing eating'.[47]
5. Ms Smith, speech pathologist assessed HXHS on multiple occasions via telehealth. In her report dated 2 February 2024[48] Ms Smith recommended 44 hours of speech pathology intervention comprised as follows:
   • Fortnightly 1 hour therapy sessions (26 hours);
   • Two 6 week workshops to support HXHS's social skills in a small group setting, help reduce anxiety and support HXHS to build friendships with others;
   • Strategies and training to support HXHS's mother, teachers and support workers;
   • Case management including communication with stakeholders (allied health team, medical team, guardians, support coordinator), report writing, therapy plan, and personalised resource development (e.g. visual supports).

1. Ms Smith also recommended HXHS attend social skills workshops supported by a speech pathologist to provide him with the opportunity to enhance his social skills by engaging with children of similar age. [49]
2. Ms Houston also recommends fortnightly speech therapy sessions of 1 hour for HXHS.[50]
3. The Agency submits that 30 hours of speech therapy is a reasonable and necessary support for HXHS comprised as follows:
   • 24 hours of speech therapy per year, being 1 hour per fortnight and taking into consideration the annual closures of a speech therapist provider for public holidays;
   • 2 hours for a speech therapist's reporting requirements; and
   • based on the PAPL and in consideration of apportionment of travel between other participants in the same region funding of 4 hours for travel.
4. Based on the evidence I am satisfied that fortnightly speech therapy for 1 hour is a reasonable and necessary support for HXHS. I accept and acknowledge the reality that speech therapy will be unavailable to HXHS for 2 weeks of each year due to public holidays, at the least. For reasons stated at [103] I am satisfied that an allowance of 9-12 hours for travel and 2 hours for reporting requirements should be funded.

1. The funding of 38 hours of speech therapy for HXHS is a reasonable and necessary support for the purposes of section 34(1) of the NDIS Act and should be included in HXHS's SOPS.

1. The dispute between M and the Agency relates to the number of hours of psychology for HXHS as a reasonable and necessary support.
2. HXHS is funded for 52 hours of occupational therapy in his current SOPS.[51]
3. M however seeks funding of 54 hours of psychology for HXHS.
4. Ms Smith recommends ongoing access to a psychologist who can support HXHS's mental health, emotional wellbeing, and overall psychological functioning.[52]
5. Dr Colston is HXHS's treating psychologist. In her report dated 25 October 2024 Dr Colston states 'He is suffering from a severe physiological health condition that is still under investigation. This condition reportedly affects multiple bodily systems, including excessive growth, delayed puberty, weight gain beyond that expected for his limited food consumption, over-heating, and limited endurance. This condition compounds the psychological problems HXHS experiences relative to his autism, including his other symptoms of depression, anxiety, post-traumatic stress disorder, low frustration tolerance, and demand avoidance.'[53]
6. Dr Colston recommends 54 hours of psychology for HXHS comprised as follows:
   • 36 hours per year for ongoing psychology;
   • 12 hours per year to consult with HXHS's support workers to plan and collaborate on HXHS's progress;
   • 6 hours per year of report writing.[54]
7. Ms Houston recommends weekly psychology sessions of 1 hour.[55]
8. On the basis of the annual closures for public holidays the Agency submits that 48 hours of psychology is a reasonable and necessary support for HXHS. The Agency proposes that psychology continue to be provided via telehealth and as such, funding for travel is not required. Furthermore, that up to 2 hours is sufficient for a psychologist to meet any reporting requirements.
9. The Agency also identifies that HXHS may be eligible to access up to 10 psychological counselling sessions through Medicare.
10. The evidence upon which M's relies in respect of seeking 2 hours of additional funding for psychology is underwhelming. This evidence does not persuade me to increase funding for psychology by 2 hours. In particular, I consider that the number of hours for funding in respect of report writing and consulting with HXHS's support workers as proposed by Dr Colston is excessive. I also consider that the current funding of 52 hours under the scheme, combined with the ability to access counselling through Medicare is an adequate and appropriate level of psychological support for HXHS.
11. I am therefore not persuaded to vary the current funding in relation to psychology.

1. The funding of 54 hours of psychology for HXHS is not a reasonable and necessary support for the purposes of section 34(1) of the NDIS Act and should not be included in HXHS's SOPS.

25 hours per year for an avoidant/restrictive food intake disorder ('AFRID') treatment program with a dietician/OT/speech therapist/personal trainer

1. As a new support M seeks funding for HXHS in relation to his food intake. M refers to HXHS's avoidance of certain foods and his general restriction in relation to his oral intake.
2. The Agency acknowledges that feeding problems such as picky eating, food avoidance, fear of trying new food, insistence on specific food presentation are behaviours which are common in younger people with autism.[56] The Agency however refers to subsection 34(1)(aa) of the NDIS Act and contends that there is insufficient evidence to substantiate that HXHS meets the disability or early intervention requirements for a diagnosis of avoidant/restrictive food intake disorder (ARFID).
3. The Agency relies on the opinion of Ms Houston which is that a psychologist with an understanding of treatment of autism and related eating disorders would be an appropriate primary therapist in the management of HXHS's disordered eating behaviours.[57] Ms Houston also states that research[58] indicates that a multidisciplinary approach to the treatment of AFRID would include an occupational therapist, speech therapist and a dietician. The Agency identifies to the Tribunal that HXHS is already funded for these therapies.
4. The Agency further identifies that HXHS may also have access to mainstream services that may be able to support him in conjunction with NDIS supports, including (but not limited to):
   • A GP referral to Child and Youth Mental Health Services - Eating Disorder Program at the Gold Coast University Services;
   • Medicare subsidised treatments which may provide for up to 40 sessions of evidence based psychological treatment from a mental health professional, and up to 20 sessions of dietetic services from an accredited dietician;
   • GP referral to a paediatrician, gastroenterologist, or other relevant specialist.[59]
5. I am satisfied that 25 hours per year for an AFRID treatment program with a dietician/OT/speech therapist/personal trainer is not a reasonable and necessary support for HXHS. This is because there is no evidence before the Tribunal which satisfies me that HXHS has an impairment as a consequence of an AFRID for which HXHS would meet the disability requirements[60] or the early intervention requirements.[61] Subsection 34(1)(aa) of the NDIS is therefore not satisfied.

1. The funding of 25 hours per year for an AFRID treatment program with a dietician/OT/speech therapist/personal trainer for HXHS is not a reasonable and necessary support for the purposes of section 34(1) of the NDIS Act and should not be included in HXHS's SOPS.

36 hours per year with a PTSD counsellor/psychotherapist

1. M seeks funding for 36 hours of PTSD counselling for HXHS with a psychotherapist.
2. The Agency again refers to subsection 34(1)(aa) of the NDIS Act and contends that there is insufficient evidence to substantiate that HXHS meets the disability or early intervention requirements for psychosocial impairments arising from post- traumatic stress disorder ('PTSD').
3. The Agency refers to notation by Ms Houston, that HXHS's progress regarding treatment of his PTSD to date has not been reported by his treating psychologist, Ms Colston, in the reviewed documentation, nor has the clinical reasoning for the increased support for PTSD, on top of his current psychological intervention.
4. The Agency submits that the Tribunal cannot be satisfied that additional hours for psychology would meet the criteria relating to value for money[62] and effective and beneficial.[63]
5. The Agency also identifies that HXHS is already funded for 52 hours per year for psychology, which can be flexibly used to access a psychologist to address psychosocial impairments arising from his autism diagnosis (appreciating that there may be overlap between impairments relating to PTSD and impairments relating to autism).
6. I am satisfied that 36 hours per year with a PTSD counsellor/psychotherapist is not a reasonable and necessary support for HXHS. This is because there is no evidence before the Tribunal which positively satisfies me that HXHS has an impairment as a consequence of PTSD for which HXHS would meet the disability requirements[64] or the early intervention requirements.[65] Subsection 34(1)(aa) of the NDIS is therefore not satisfied.

1. The funding of 36 hours per year for a PTSD counsellor/psychotherapist for HXHS is not a reasonable and necessary support for the purposes of subsection 34(1) of the NDIS Act and should not be included in HXHS's SOPS.

Support coordination - 48 hours per year (Level 1) and 48 hours per year (Level 3)

1. M seeks funding for HXHS of 48 hours per year of Level 1 support coordination and a further 48 hours per year of Level 3 support coordination.
2. Currently HXHS is funded for 24 hours of Level 2 support coordination and 36 hours of Level 3 - specialist support coordination.
3. The Agency contends that this current level of support coordination is sufficient to assist M to understand his NDIS plan, connect HXHS with supports and services (noting that many connections appear to have already been made), and increase HXHS's capacity to maintain relationships with providers. The Agency identifies that an additional number of hours for 'specialist support coordination' has been provided in recognition of HXHS's specific complex needs and associated risks, noting the interaction between NDIS funded supports and multiple mainstream services in supporting the Applicant.[66]
4. Ms Mobbs recommends support coordination 'To ensure HXHS is accessing and utilising all therapies and services available to him to manage his disability and behaviours.'[67]
5. Ms Smith recommends ongoing support coordination to support M in sourcing and organising appropriate service providers for HXHS. [68]
6. Ms Crawford recommends support coordination which she quantifies at 40 hours per year, to support HXHS in connecting with providers that can help him to achieve his goals. Also to provide specialist mental health support and knowledge.[69]
7. There is no evidence before the Tribunal which persuades me to be positively satisfied that the requested increase of funding for support coordination will be effective and beneficial for HXHS pursuant to section 34(1)(d) of the NDIS Act. Having failed to meet paragraph 34(1)(d) of the NDIS Act and in the context of the cumulative operation of subsection 34(1) of the NDIS Act, the consideration of all other criteria is unnecessary.

1. The funding of 48 hours per year for (Level 1) support coordination and 48 hours per year for Level 3 support coordination is not a reasonable and necessary support for the purposes of subsection 34(1) of the NDIS Act and should not be included in HXHS's SOPS.

NDIS self-education - subscriptions (12 x $100) and courses (4 x $650)

1. M seeks funding for 'courses and subscriptions' relating to the NDIS.
2. The Agency contends that this support is 'unclear' and submits that this support likely duplicates the supports that can be provided to HXHS through a support coordinator.
3. The Agency's submission is accepted.
4. Based on the evidence I am unable to be positively satisfied that the request for funding as particularised by M is nothing other than a duplication of the funding provided by support coordination and already included in HXHS's SOPS. Paragraph 34(1)(c) of the NDIS Act is therefore not satisfied.
5. Having failed to meet paragraph 34(1)(c) of the NDIS Act and in the context of the cumulative operation of subsection 34(1) of the NDIS Act, the consideration of all other criteria is unnecessary.

1. The funding for courses and subscriptions in relation to NDIS self-education is not a reasonable and necessary support for the purposes of subsection 34(1) of the NDIS Act and should not be included in HXHS's SOPS.

1. M seeks funding for HXHS for 28 days of STA ('STA 1') so that HXHS can 'try new things, can be a place to make friends, or develop new skills' and also for 'respite - help to maintain your current living situation by giving your informal supports a break'. [70]
2. M also seeks funding of a further 32 days of STA ('STA 2') to develop routines. M also refers to the NDIS Operational Guidelines - Short Term Accommodation and Respite which provide as follows_:_

'We may fund more than 28 days per year if children are at risk of going to residential care...'[71]

1. The Agency is not agreeable to funding STA and contends that the evidence does not substantiate that STA would be either value for money[72] or effective or beneficial relative to the supports that are already funded.[73]
2. The Agency submits that the funding proposed in [69] may be used within HXHS's home and community to provide HXHS's informal carers with respite.
3. In relation to STA 2 the Agency identifies that there is no evidence before the Tribunal that HXHS is 'at risk of going into residential care'.
4. In relation to STA 1 the Agency also identifies that HXHS is currently funded for $9,600 in Capacity Building - Daily Activities (being the equivalent of 49.4 hours per year) which can be used flexibly for the purpose of skill building in social skills with a preferred provider. This may include attendance at 2 Soul Shack camps, which may provide HXHS and his informal carers with respite.
5. The NDIS Operational Guidelines - Short Term Accommodation or Respite identify clearly the following matters in respect of STA:
   • it is funding for support and accommodation for a short time away from your usual home;
   • it is not for holidays;
   • It must be related to a participant's disability;
   • It can be used for respite to support a participant and a participant's carers;
   • It gives a participant the chance to try new things;
   • It can be a place for a participant to make new friends or develop new skills;
   • It may help to maintain a participant's current living situation by giving a participant's informal supports 'a break'.
6. I am persuaded by Ms Houston's opinion in relation to STA as a support for HXHS.
7. Ms Houston considered STA for HXHS in some detail and identified that STA would provide M with an opportunity for respite from her usual caring responsibilities. Ms Houston however also identified as relevant that HXHS was already funded for 2 Soul Shack camps, with each camp being a 5-day group respite program. She described the Soul Shack camps as being an opportunity for HXHS to engage in socialisation, leisure, physical exercise, and skill development. In the context of HXHS's reported high levels of fatigue, difficulty with self-regulation and low motivation to engage socially with others Ms Houston's opinion was that the participation in 2 Soul Shack camps would be sufficient to meet HXHS's needs. I accept and agree with Ms Houston's opinion.
8. Based on this evidence I am satisfied that any further funding in respect of STA amounts to a duplication of a support and does not represent value for money in accordance with the requirement under paragraph 34(1)(c) of the NDIS Act. Paragraph 34(1)(c) of the NDIS Act is therefore not satisfied.
9. Having failed to meet paragraph 34(1)(c) of the NDIS Act and in the context of the cumulative operation of subsection 34(1) of the NDIS Act the consideration of all other criteria is unnecessary.

1. The funding for STA is not a reasonable and necessary support for the purposes of subsection 34(1) of the NDIS Act and should not be included in HXHS's SOPS.

The AFRID and PTSD Residential Treatment Program

1. For reasons already stated in [132] and [139] funding for the AFRID and PTSD Residential and Treatment Program is not a reasonable and necessary support for the purposes of subsection 34(1) of the NDIS Act and should not be included in HXHS's SOPS.

*** M seeks funding for 15 hours per week in respect of the costs of 'transporting HXHS to study'.

• The Agency submits that transport for children forms a part of the reasonable care and support which can be expected to be provided by families and carers.
• The Agency refers to item 6(g) of Schedule 2 to the Transitional Rules which provides that the following 'Day-to-Day living costs - travel and transport' are not NDIS supports for the purposes of section 10 of the NDIS Act:**

(g) transport for children as part of their reasonable care and

1. The Agency contends on the basis that transport for children is excluded as an NDIS support under item 6(g) of the Transitional Rules and for the purposes of section 10 of the NDIS Act, paragraph 34(1)(f) of the NDIS Act is not satisfied.
   1. The Agency's submission is accepted.
2. The Tribunal's decision making ability is prescribed only by the legislature. The Tribunal has no power or discretion to direct the inclusion of a support in a participant's SOPS which is specifically excluded under the scheme by the operation of Schedule 2 to the Transitional Rules.[74]
   1. Having failed to meet paragraph 34(1)(f) of the NDIS Act and in the context of the cumulative operation of subsection 34(1) of the NDIS Act the consideration of all other criteria is unnecessary.

1. Transport expenses for HXHS to attend study are not a reasonable and necessary support for the purposes of subsection 34(1) of the NDIS Act and cannot be included in HXHS's SOPS.

1. M seeks funding to purchase Lego Kits for HXHS. In this regard funding is sought for 1 to 2 kits per fortnight with a budget limit of $150.00.
2. In her report dated 25 October 2024, Dr Colston, psychologist stated that HXHS would benefit from the opportunity to use Lego and engage in a Lego club.[75] Dr Colston also explained that HXHS 'spends significant time playing video games and building Lego kits'.[76]
3. The Agency refers to item 4(g) of Schedule 2 to the Transitional Rules which provides that the following 'Day-to-Day living costs - lifestyle' are not NDIS supports for the purposes of section 10 of the NDIS Act:

(g) standard recreational equipment and tools, including toys, balls and racquets

1. The Agency contends that Lego is a toy. On this basis Lego is excluded as an NDIS support for the purposes of section 10 of the NDIS Act and therefore paragraph 34(1)(f) of the NDIS Act is not satisfied.
   1. The Agency's submissions are accepted.
   2. Having failed to meet paragraph 34(1)(f) of the NDIS Act and in the context of the cumulative operation of subsection 34(1) of the NDIS Act the consideration of all other criteria is unnecessary.

1. Lego kits are not a reasonable and necessary support for the purposes of subsection 34(1) of the NDIS Act and cannot be included in HXHS's SOPS.

1. M seeks funding of 26 hours of art therapy for HXHS.
2. The Agency contends that art therapy is not 'evidence based therapy' and relies on the report of Ms Houston. In her report Ms Houston acknowledges that therapies such as 'art therapy' are 'becoming more common for children with ASD'. She states however that there is limited evidence available within the available literature to support the 'effectiveness' of art therapy 'in improving ASD symptoms', and therefore a 'positive impact' upon HXHS's functioning 'cannot be guaranteed'.[77]
3. Ms Houston also stated:

'Based on a review of current research, whilst an individual may experience therapeutic benefits from the participation in Art Therapy, I do not believe that it can be considered evidence based.'[78]

1. The Agency submits that HXHS:
   • is already funded for a range of other therapies, including occupational therapy, speech therapy, and psychology, which will support him to increase his capacities in activities of daily living;
   • may engage with a psychologist who provides therapy that incorporates art, if he wishes to do so;
   • has access to a support worker to assist him to engage in activities at home and in the community, which may involve art.
2. I am satisfied that art therapy is not a reasonable and necessary support for HXHS. In this regard there is no published or refereed literature, or expert consensus opinion which supports art therapy as being an 'effective' support for the treatment of symptoms of children affected by ASD. On this basis paragraph 34(1)(d) of the NDIS Act is not satisfied.[79]
   1. Having failed to meet paragraph 34(1)(d) of the NDIS Act and in the context of the cumulative operation of subsection 34(1) of the NDIS Act the consideration of all other criteria is unnecessary.

1. Art therapy is not a reasonable and necessary support for the purposes of subsection 34(1) of the NDIS Act and cannot be included in HXHS's SOPS.

1. M seeks funding of 26 hours of music therapy for HXHS.
2. Ms Houston addresses the effectiveness or otherwise of music therapy in her report[80] following her analysis of relevant literature and meta-analysis. Ms Houston states:

Current research regarding the use of music therapy for children with ASD suggested that engagement in therapy can improve social interaction through the promotion of social skills.

1. Notwithstanding the existence of published literature in support of music therapy as an effective and beneficial evidenced based support for children with ASD, Ms Houston raises as an issue, the appropriateness of music therapy in the context of HXHS's goals. Ms Houston also states:

If music therapy is an approved support, confirmation of the qualifications of the proposed music therapy provider should also be considered to ensure that the therapy techniques that may be used are evidence-based.

1. There is no evidence before the Tribunal from an appropriately qualified practitioner who, having assessed HXHS, is of the opinion that music therapy will be an effective and beneficial therapy for HXHS. In the absence of such evidence I cannot be satisfied that the requirements of paragraph 34(1)(d) of the NDIS Act are satisfied.
2. Should such an opinion be obtained in the future, it is open to HXHS to seek re-assessment of his plan pursuant to section 48 of the NDIS Act and request the inclusion of music therapy in his SOPS. Such an assessment will provide the Agency with an understanding of HXHS's needs insofar as musical therapy may be proposed. This will allow the Agency to make an informed decision with respect to such funding.
   1. Having failed to meet paragraph 34(1)(d) of the NDIS Act and in the context of the cumulative operation of subsection 34(1) of the NDIS Act the consideration of all other criteria is unnecessary.

1. Music therapy is not a reasonable and necessary support for the purposes of subsection 34(1) of the NDIS Act and cannot be included in HXHS's SOPS.

Assistive Technology (Level 1) (items not specified) and Assistive Technology (Level 2) (software and headphones to connect the Applicant's phone to headphones)

1. M seeks the following funding for Assistive Technology for HXHS:
   • Assistive Technology (Level 1) - $1,500.00
   • Assistive Technology (Level 2) - $5,000.00 (the 'Assistive technology')
2. No particulars are provided to the Tribunal in relation to the Level 1 funding. The following particulars are however provided in relation to the Level 2 funding:

Software and hardware to connect HXHS's phone to headphones for scheduling, routines, prompting, motivating, and queues to promote independence

1. In respect of the 'Level 1' Assistive Technology funding sought, the Agency submits that M has not particularised the specific items that are being sought and therefore it is not known whether those items are able to meet the criteria in subsection 34(1) of the NDIS Act.
2. The Agency's submission is accepted. In the absence of particularisation in respect of the supports sought for Level 1 Assistive Technology I am unable to be positively satisfied that this funding, as a support, meets the criteria pursuant to subsection 34(1) of the NDIS Act.
3. In particular, based on the evidence I am unable to be positively satisfied why software and hardware which will connect HXHS's phone to headphones, as referred to in [197] is effective and beneficial for the purposes of paragraph 34(1)(d) of the NDIS Act.
4. In respect of the particulars provided in relation to 'Level 2' Assistive Technology the Agency refers the Tribunal to item 4(d) Schedule 2 to the Transitional Rules which provides that the following 'Day-to-Day living costs - lifestyle' are not NDIS supports for the purposes of section 10 of the NDIS Act:

(a) internet devices (such as modems and routers), land line phones, mobile phones (including smart phones), mobile phone accessories, tablets and sim cards;

1. I am also satisfied that the Level 2 Assistive Technology sought by M falls within the ambit of item 4(d) of Schedule 2 to the Transitional Rules on the basis that_, 'mobile phones (including smart phones)'_ and 'mobile phone accessories' are not an NDIS Support for the purposes of section 10 of the NDIS Act.
   1. The Assistive Technology sought by M, as particularised, fails to meet subsection 34(1)(d) and subsection 34(1)(f) of the NDIS Act.

1. The Assistive Technology sought by M for HXHS is not a reasonable and necessary support for the purposes of subsection 34(1) of the NDIS Act and cannot be included in HXHS's SOPS.

Supply and installation of an air conditioning system - $2,450.00

1. M seeks funding for the supply and installation of an air conditioning system for HXHS in the sum of $2,450.00. M refers to HXHS's excessive sweating at night, particularly the sweating of HXHS's face. M explains that HXHS sleeps with an industrial fan, placed within approximately 30 cm of his head. M raises as an issue her concern that with long exposure to the noise of an industrial fan, HXHS is at risk of permanent hearing loss.[81]
2. The Agency submits that an air conditioning unit is not an 'NDIS Support' and refers to item 1(i) of Schedule 2 to the Transitional Rules which provides that the following 'Day-to-Day living costs - accommodation and lifestyle' are not NDIS supports for the purposes of section 10 of the NDIS Act:

(i) standard household (including garden) items, appliances,

1. The Agency contends that an air conditioning unit is a standard household item and falls within the ambit of item 1(i) of Schedule 2 to the Transitional Rules purposes of section 10 of the NDIS Act. On this basis paragraph 34(1)(f) of the NDIS Act is not satisfied.
2. The Agency also contends that an air conditioner does not meet the criteria in paragraph 34(1)(aa) of the NDIS Act, on the basis that there is insufficient clinical evidence that indicates a thermoregulatory impairment arising from HXHS's autism diagnosis.[82]
   1. I am not satisfied that HXHS's excessive sweating whilst sleeping has any connection whatsoever to his ASD. Based on the evidence I am also unable to be positively satisfied that an air conditioner is necessary to address HXHS's needs which arise as a consequence of his ASD.
   2. An air conditioning system fails to meet paragraph 34(1)(aa) of the NDIS Act. Having failed to meet paragraph 34(1)(aa) of the NDIS Act and in the context of the cumulative operation of subsection 34(1) of the NDIS Act the consideration of all other criteria is unnecessary.

1. An air conditioning system is not a reasonable and necessary support for the purposes of subsection 34(1) of the NDIS Act and cannot be included in HXHS's SOPS.

Car modifications - extended leg room/seating for passenger - $3,000

1. M seeks $3,000.00 of funding under the scheme for 'car modifications'.
2. The Agency contends that the reasons for this request are unclear. Further that in the absence of a clinical assessment and recommendations pertaining to this request, it cannot be considered reasonable or necessary for the purposes of subsection 34(1) of the NDIS Act.
3. In particular the Agency submits that the Tribunal cannot be positively satisfied that car modifications represent value for money[83] or that modifications are reasonable and beneficial having regard to current good practice.[84]
4. In her report dated 20 January 2025 Ms Jaimee Leggett, occupational therapist states:

The assessor notes that M requested consideration of services or items, such as a vehicle modifications (for both passenger and driver seats) to accommodate his unprecedented height associated with his overgrowth disorder. However, the assessor advises that this cannot be taken into consideration at this time as per NDIS reasonable and necessary criteria. As per this criteria, it is unreasonable to make assumptions about HXHS's future function at this time. The assessor suggests that this is further explored once HXHS reaches an appropriate age, and once HXHS's unspecified overgrowth disorder is accepted by NDIS.[85]

1. There is no evidence before the Tribunal to persuade me that the car modifications sought by M for HXHS have any connection whatsoever to HXHS's ASD. I am therefore unable to be positively satisfied that these modifications are necessary to address HXHS's needs which arise as a consequence of his ASD.

1. The car modifications fail to meet paragraph 34(1)(aa) of the NDIS Act. Having failed to meet paragraph 34(1)(aa) of the NDIS Act and in the context of the cumulative operation of subsection 34(1) of the NDIS Act the consideration of all other criteria is unnecessary.

1. The funding of $3,000.00 for 'car modifications' for HXHS are not a reasonable and necessary support for the purposes of subsection 34(1) of the NDIS Act and cannot be included in HXHS's SOPS.

1. M seeks reimbursement for the costs of relocating herself, HXHS and S to a metropolitan area. M explains this relocation has occurred as a result of S commencing tertiary studies in the metropolitan area. M also refers to the 'extremely limited resources' including allied health professionals and medical specialists in the rural area where the family previously resided.
2. M 'estimates' these relocation costs in the sum of $47,000.00. This amount is comprised of $15,000.00 for 'removal costs' and $32,000.00 for 'stamp duty'.
3. The Agency contends that the reasons for this request are unclear, and that in any event relocation costs are not necessary to address the needs of HXHS arising from his ASD, as required by subsection 34(1)(aa) of the NDIS Act.

1. Item 1(a) Schedule 2 to the NDIS Supports Transitional Rules provides that the following 'Day-to-Day living costs - accommodation and household' are not NDIS supports for the purposes of section 10 of the NDIS Act:

(a) rent, rental bonds, home and property deposits, stamp duty, mortgage repayments, and strata fees; (Tribunal emphasis)

1. Stamp duty is clearly not an NDIS Support for the purposes of section 10 of the NDIS Act. The failure to satisfy subsection 34(1)(f) of the NDIS Act again results in the inevitable conclusion that stamp duty is not a reasonable and necessary support capable of funding under the scheme.

1. For the Tribunal to be satisfied that 'removal costs' are a reasonable and necessary support for HXHS, it will need to be satisfied that the seven mandatory criteria under section 34(1) of the NDIS have been met. This includes consideration of whether removal costs are excluded due to the operation of Rule 5 of the Supports Rules.

1. Rule 5 of the Supports Rules provide as follows;

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.(Tribunal emphasis)

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; (Tribunal emphasis)

(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. Relevant to this review Rule 5.1(d) excludes the funding of day-to day living costs unless either of two further circumstances as set out in Rule 5.2 applies. In other words Rule 5.2(a) and (b) are exceptions to the exclusion in subrule 5.1(d) of the Supports Rules.

1. The Tribunal must first consider whether 'removal costs' are 'day-to-day living costs for the purposes of Rule 5.1(d) of the Supports Rules..
2. The phrase 'day to day living costs' is not defined in the Act. Recently in Warwick v National Disability Insurance Agency,[86] Perram J considered the use of this phrase for the purposes section 5.1(d) of the Supports Rules and provided the following commentary:

'......day-to-day living costs' are those everyday expenses which are incurred in the course of living for the purpose of living. This meaning is confirmed by the examples which appear in brackets in paragraph 5.1(d) - 'rent, groceries and utility fees' - which are canonical examples of day-to-day living costs.

The costs of engaging an agent to sell one's home, the costs of moving from one home to another, conveyancing fees and the payment of stamp duty on the conveyance of a new home are not everyday costs which are incurred in the course of living for the purpose of living. To the contrary, they are extraordinary expenses to which not everyone has the good fortune to become liable and which, even amongst those who are that fortunate, can scarcely be described as 'day-to-day' costs. (Tribunal emphasis)

1. In Warwick, Perram J further stated in respect of section 5.1(d) of the Supports Rules that:

.........it is obvious that relocation costs are not 'day-to-day living costs' and there is a public interest in having it made clear for the purposes of the NDIS that this is so;....... ,[87]

1. The decision of Warwick was not overturned on appeal and the Tribunal is bound to follow this decision. I also agree with the principle espoused by Perram J in Warwick in relation to relocation costs which would include removal costs. On this basis I am satisfied of the following:
   • 'removal costs' as being requested by HXHS are not a 'day-to-living cost' for the purposes of section 5.1(d) of the Supports Rules;
   • The Tribunal is therefore not required to consider Rule 5.2 of the Supports Rules as it is not enlivened;
   • Simply put, Rules 5.1 and 5.2 of the Supports Rules, do not assist HXHS in seeking funding for removal costs under the scheme.

Are removal costs an 'NDIS Support'- subsection 34(1)(f) NDIS Act?

1. Aside from my conclusion in relation to Rule 5 of the NDIS Supports Rules I am also not satisfied that the mandatory criterion under Section 34(1)(f) of the NDIS Act is met. I other words I am not satisfied the 'removal costs' are an "NDIS Support' for the purposes of section 10 of the NDIS Act.
2. I acknowledge there to be no prohibition of 'removal costs' per se under Schedule 2 to the NDIS Transitional rules. I note however and have considered Item 3(b) to Schedule 1 to the Transitional Rules which provides that the following 'Assistance in coordinating or managing life stages, transition and supports' are an NDIS support for the purposes of section 10 of the NDIS.

1. The explanatory statement to the NDIS Supports Transitional Rules provides the following explanation in respect of Item 3(b) to Schedule 1:

Assistance in coordinating or managing life stages, transitions and supports

These are supports provided on a short-term basis that provide assistance to manage life transitions. Some participants require temporary supports that help them prepare for and navigate major life changes successfully, such as preparing to move out of home for the first time or getting ready to leave hospital after a long stay. Supports can be provided which help a participant to get used to using new equipment, develop new routines, work with new support workers, or orient to a new house or community setting.

These supports can be provided to any participants or prospective participants who need them as a result of their disability[88]

1. I have formed the view that removal costs do not fall within the operation of Item 3(b) to Schedule 1 to the Transitional Rules. This is because in my view Item 3(b) to Schedule 1 relates to the funding of supports that assist a participant with the 'personal' short term challenges they may experience as a result of their impairments, in adapting or adjusting to a new residential or community environment. This would include support with managing and adapting to new routines, adjusting to new support workers or service providers, orientating within a new home or orientating in and around a new community setting. Exercising my decisional freedom[89] and having regard to commonsense item3(b) to Schedule 1 does not include removal costs to transport furniture or belongings. On this basis subsection 34(1)(f) of the NDIS Act is not satisfied.
2. Finally and furthermore there is also no evidence before the Tribunal to positively persuade me that HXHS's relocation to a metropolitan area was either:
   • necessary to address his supports needs that arise from his ASD;[90]
   • or that a move to a metropolitan area will be, or is likely to be effective and beneficial for XBMT having regard to current good practice.[91]

1. Stamp duty and removal costs are not a reasonable and necessary supports for the purposes of subsection 34(1) of the NDIS Act and cannot be included in HXHS's SOPS.

1. M seeks funding for private health insurance for HXHS. M states that this is needed as a support due to the impact of HXHS's disability.
2. The Agency refers to item 2(d) of Schedule 2 to the NDIS Supports Transitional Rules which provides that the following 'Day-to-Day living costs - finance and payment'' are not NDIS supports for the purposes of section 10 of the NDIS Act:

(b) health insurance, ambulance membership, gap payments for Medicare-funded services and private health insurance claims;

1. Private health insurance is clearly not an NDIS Support for the purposes of section 10 of the NDIS Act. The failure to satisfy paragraph 34(1)(f) of the NDIS Act again results in an inevitable conclusion that private health insurance is not a reasonable and necessary support capable of funding under the scheme.

1. Private health insurance is not a reasonable and necessary support for the purposes of subsection 34(1) of the NDIS Act and cannot be included in HXHS's SOPS.

1. Paragraph 33(2)(d) of the NDIS Act provides that a participant's SOPS must include a statement that specifies 'the management of the funding for supports under the Plan'.
2. Subsection 42(2) of the NDIS Act provides various options for the management of a participant's plan and provides as follows:

(2) For the purposes of the statement of participant supports in a participant's plan, in specifying the management of the funding for supports under the plan as mentioned in paragraph 32D(2)(f) or 33(2)(d), the plan must specify that such funding is to be managed wholly, or to a specified extent, by:

(a) the participant; or

(b) a registered plan management provider; or

(c) the Agency; or

(d) the plan nominee.

1. HXHS's current SOPS states that his core supports budget is 'plan managed'.
2. M however seeks 'self-management' of the core supports budget contained within HXHS's SOPS.[92] This will allow M to personally manage these supports. M's submissions in respect of this request include the following:
   • There is no evidence to suggest any misuse of any NDIS funds;
   • M has over 25 years of professional experience in high level financial management positions;
   • M has the highest ethical standards;
   • Any shortage of funds prior to the expiration of any plan period had occurred on the basis of the Agency not giving consideration to the impact of HXHS and his carers living in a remote location, with limited access to support services and allied health;
   • That HXHS's funding needed to be allocated with greater flexibility;
   • That there is no reason not to permit 'self-management' of HXHS's core supports budget.[93]
3. The Agency opposes self-management of HXHS's core funding by M and refers the Tribunal to the following 'chronology', firstly in relation to the management and use of funding in HXHS's plans and secondly to the management and use of funding in M's plans, as a participant in the scheme:[94]
   • On 28 November 2022, the Agency issued a 3-year NDIS Plan for HXHS, in which the funding was 'Agency Managed'. This was HXHS's first NDIS plan;
   • M on behalf of HXHS sought a review of this plan. As a part of this review M sought a change to the management of HXHS's plan from 'Agency managed' to 'plan managed'. In an internal review decision dated 25 January 2023, the Agency confirmed the original decision. In doing so, the Agency took into account how well M had managed the funding in her own plans historically;
   • On 9 February 2023 M on behalf of HXHS applied to the Tribunal for a review of this internal review decision made on 25 January 2023 (AAT Proceedings No 2023/0870);
   • On 5 December 2022, the Agency issued a 12-month NDIS Plan for M in which the funding was changed to 'Agency managed'. In doing so, as a part of this plan M was provided with 40 hours of support coordination services to provide her with education regarding the use of NDIS funding;
   • M sought a review of her plan dated 5 December 2022 on grounds that included changing management of her plan from 'Agency managed' to 'plan managed'. In an internal review decision dated 25 January 2023, the Agency confirmed its original decision in respect of M's plan, noting that:

'In 2022, invoices display that supports provided within the plan have not been used in the manner they were intended and not been used for your disability related needs and significant funding was spent on supports that are not reasonable and necessary such as food, household appliances, tennis coaching, pet grooming, fuel, home repairs and school uniforms. A support coordinator can provide education around what is the responsibility of the NDIS to fund and what represents an everyday cost. Previously, 12 months of plan funding has been spent in 4 months. This presents an unreasonable risk to you. The plan is 12 months in duration, so that you can have more frequent re-assessment meetings where plan management changes can be considered.'

• On 21 February 2023 M applied to the Tribunal for a review of this internal review decision (AAT proceedings No. 2023/1059);
• In the course of both AAT proceedings,[95] M requested a replenishment of funds and that the core supports budget be 'self-managed' in respect of both her own plan and HXHS's plan;
• On 2 August 2023, M lodged a 'certificate of achievement' in relation to a course that she had completed in relation to 'self-management of NDIS funding';
• On 17 November 2023, a 12-month interim plan for M was subsequently issued pursuant to a remittal decision issued by the Tribunal pursuant to section 42D of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Within that further plan, as requested by M, her core supports budget was 'self-managed';
• Soon after, on 22 November 2023 a 12-month interim plan was also issued in relation to HXHS, pursuant to a remittal decision issued by the Tribunal pursuant to s 42D of the AAT Act. Likewise, as requested by M the core supports budget in HXHS's plan was also 'self-managed';
• On or about 10 April 2024, the Agency had cause for significant concerns regarding the 'over expenditure' of the core supports budget in HXHS's plan. In this regard, at that time, 93% of HXHS's core supports had been expended, in the context of only 6 months remaining until the expiration of HXHS's plan;
• Of further concern were numerous invoices received by the Agency in relation to HXHS's plan;
• These invoices related to and included claims for accommodation and consumable items that were not funded in HXHS's plan. They included the following:
  • A Harvey Norman invoice dated 21 November 2023 for a 'Samsung Galaxy s23 5G Ultra 256 GB Black' smartphone in the amount of $1,813.00;
  • An unspecified purchase at the Park Regis City Quays dated 6 May 2023 in the amount of $200.00 (also being unauthorised reimbursement of previous plan period submitted on 7 December 2023);
  • Unspecified purchases (x 2) listed as accommodation at the 'Palm Royale Cairns' dated 20 May 2023 of $200 (x 2) (also being unauthorised reimbursement of previous plan period submitted on 7 December 2023 and 8 December 2023);
  • An invoice from 'Breakaway Retreat' dated 1 December 2023 for arrival 12 December 2023 and departure on 25 December 2023 in the amount of $27,073.63;
  • An invoice for the 'Cairns Sunland Caravan Park' on 17 January 2024 in the amount of $111.00.

• Further invoices of concern in relation to HXHS's plan also included the following:
  • an invoice for an online course for a non-specific online platform from San Francisco, which was not appropriately claimed from HXHS's plan;
  • A number of invoices from Dr Colston which were incorrectly claimed against HXHS's self-managed core supports budget, instead of HXHS's plan-managed capacity building budget.

• The Agency thereafter replenished M's plan on 26 April 2024 which included core supports funding on a 'Plan Managed' basis to ensure a continuity of funding remained available to M whilst the Tribunal proceedings remained on foot;
• Likewise the Agency replenished HXHS's plan on 23 April 2024 which included core supports funding on a 'plan managed' basis to ensure a continuity of funding remained available to HXHS while the Tribunal proceedings remained on foot;
• By 10 April 2024, the Agency had further significant concerns regarding the over expenditure of the core supports budget in M's plan. This was on the basis that by this time M was approximately 40% of the way through the 'budget year' (17 November 2023 to 17 November 2024) with 98% of the core supports budget already expended.
• Further invoices thereafter received by the Agency raised concerns regarding M's ability to appropriately plan and budget her core supports funding so as to ensure funds were expended in accordance with her NDIS plan, including its duration. These invoices included the following:
  • An invoice from Breakaway Retreats dated 1 December 2023 for arrival 25 December 2023 and departure on 4 January 2024 in the amount of $28,008.50;
  • An invoice from Wild Earth dated 28 December 2024 for men's hiking shoes, women's socks, men's socks, and trekking hiking poles in the amount of $460.76;
  • An invoice from the Seaside Serenity Modern Cottage with Spa dated 25 January 2024 in relation to an 'Entire Holiday Home Two-Bedroom House' from 26 January 2024 to 29 January 2024 in the amount of $1,132.07;
  • An invoice from W and T Garden Bails dated 2 February 2024 for the cost to 'Supply Men and Machines to Finish doing Trees and Clean Up Around Yard' in the amount of $2,200.00.
• On 23 April 2024 the Agency replenished HXHS's plan which included core supports funding on a plan-managed basis to ensure a continuity of funding remained available to HXHS while these Tribunal proceedings remained on foot;
• On 26 April 2024 the Agency replenished M's plan which included core supports funding on a plan-managed basis to ensure a continuity of funding remained available to M while her Tribunal proceedings remained on foot.

1. Subsection 43(1) of the NDIS Act provides as follows:

'Choice for the participant in relation to plan management

(1) A participant for whom a plan is in effect or is being prepared may make a request (a plan management request ):

(a) that he or she manage the funding for supports under the plan wholly or to the extent specified in the request; or

(b) ................................................'

1. Pursuant to section 43 (1)(a) of the NDIS Act, M has made a 'plan management request' on behalf of HXHS. In doing so she has requested that the core supports budget in HXHS's SOPS be 'self-managed' by her.

1. Relevantly subsection 43(3) of the NDIS Act provides:

(a) a participant makes a plan management request covered by paragraph (1)(a); and

(b) subsection 44(1) applies in relation to the participant;

the statement of participant supports in the plan must provide for the funding for supports under the plan:

(c) if paragraph 44(1)(a) or (aa) applies--to be wholly managed by the Agency; and

(d) if paragraph 44(1)(b) or (c) applies--to be managed by the Agency to the extent covered by that paragraph.

1. Section 44 of the NDIS Act provides the circumstances in which persons must not manage funding and provides as follows:

Circumstances in which persons must not manage funding

Participant

(1) For the purposes of paragraph 43(3)(b), this subsection applies in relation to a participant if:

(a) the participant is an insolvent under administration; or

(aa) the participant has been convicted of an offence against a law of the Commonwealth, a State or a Territory that:

(i) is punishable by imprisonment for 2 years or more; or

(b) the CEO is satisfied that the participant's management of the funding for supports under the plan to a particular extent would:

(i) present an unreasonable risk to the participant; or

(ii) permit the participant to manage matters that are prescribed by the National Disability Insurance Scheme rules as being matters that must not be managed by a participant; or

(c) the CEO is satisfied that section 46 (acquittal of NDIS amounts) would be unlikely to be complied with if the participant were to manage the funding for supports under the plan to a particular extent.

.......................................................................................

1. The Agency submissions include the following:
   • That the self-management by M of HXHS's core supports budget would represent an unreasonable risk to HXHS pursuant to paragraph 44(1(b) of the NDIS Act. In this regard the Agency refers to the historical management of HXHS's core supports budget by M;
   • There are reasonable concerns in relation to M's capacity to appropriately manage HXHS's core supports budget. Further that these concerns have persisted despite M having undertaken 'education' which has been funded by the Agency in respect of the appropriate use of NDIS funding.

1. I am positively satisfied that the 'self-management' by M of HXHS's core supports budget represents an unreasonable risk to HXHS pursuant to paragraph 44(1)(b) of the NDIS Act. My considerations are as follows:

• M has a proven history of expending the core supports funding in HXHS's SOPS inappropriately and in relation to items which are not funded under the scheme for HXHS. This behaviour has persisted despite M being provided with appropriate education in respect of the appropriate use of funding under the scheme. * The management of HXHS's core support budget by M risks the continuation of an inappropriate use of HXHS's core supports budget. This will inevitably result in a shortfall of funds. HXHS will thereafter have insufficient funds for the supports which are the responsibility of the Agency to fund under the scheme and which relate to his disability needs. As a child, HXHS is presumed vulnerable and this level of risk is unacceptable. * On the basis of the amendment to paragraph 34(1)(f) of the NDIS Act[96] it is imperative that funds contained in HXHS's SOPS only be used for supports which are 'NDIS Supports' for the purposes of subsection 10(1) of the NDIS as prescribed within Schedule 1 of the Transitional Rules. * It is also imperative that funds contained in HXHS's SOPS not be used to fund supports which are clearly prescribed as not being NDIS Supports for the purposes of 10(4) of the NDIS as prescribed within Schedule 2 to the Transitional Rules. * I do not accept that with 'self-management' of HXHS's core support budget by M that she will strictly adhere to the prescriptive requirements of Schedules and 1 and 2 of the Transitional Rules.

1. For the purposes of paragraph 44(1((c) of the NDIS Act I note also section 46 of the NDIS Act which provides as follows:

Requirement to spend money only on NDIS supports and in accordance with plan

(1) A participant who receives an NDIS amount, or a person who receives an NDIS amount on behalf of a participant:

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

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

...................................................................................

1. Based on the history of the management of HXHS's SOPS by M, I am also not positively satisfied, nor in any way confident, that M would spend money funded in HXHS's SOPS only on 'NDIS Supports' or in accordance with HXHS's plan pursuant to section 46 of the NDIS Act.
2. In forming my view I have also given consideration to subsection 3(3) of the NDIS Act and the objects of the NDIS Act of the need to ensure the financial sustainability of the scheme.
3. I am also acutely conscious of the Agency's 'statutory responsibility' pursuant to subsection 4(17) of the NDIS Act to perform its functions having regard to the need for financial sustainability of the scheme.

*** Pursuant to subparagraph 105(c)(ii) of the Administrative Review Tribunal Act 2025 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with a direction that within 28 days of this decision HXHS's statement of participant supports specifies the following supports:**

• Support worker assistance as follows:
  • 10 hours per week for personal care at a weekday rate (2 hours per weekday);
  • 7 hours per week for 'Domestic Instrumental', comprised of 5 hours at a weekday rate, 1 hour at a Saturday rate, and 1 hour at a Sunday rate;
  • 10.5 hours per week for Community & Civic Participation, comprised of 6 hours per week at a weekday rate and 4 hours per week at a Saturday rate; and 2 hours per month at a Sunday rate.
• 38 hours of speech therapy.
  1. The date by which the Agency must reassess HXHS's plan is to be 12 months after the date on which the supports in (a) and (b) above are included in HXHS's statement of participant supports;
  2. All other supports in HXHS's existing statement of participant supports are to be replicated pro-rata from the date of this decision until the reassessment date. The management of funding in HXHS's plan is to remain the same as is specified in HXHS's current statement of participant supports.

1. I certify that the preceding 258 (two hundred and fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins.

[2] Section 129 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024

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

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

[6] See section 7 Transitional Rules; section 10(6) - 10(7) NDIS ACT

[7] Mills v NDIA [2025] 1410 at 48, FSWN v NDIA [2025] ARTA 114 at [43]

[8] Minister for Home Affairs v G [2019] FCAFC 79 at [18]

[9] [1979] AATA 179 (1979); 2 ALD 634

[10] [2018] FCA 1229

[13] This also includes the T Documents

[16] NDIS Plan commencing 22 January 2025, Letter NDIS to M dated 24 September 2025

[17] Respondent's SFIC dated 2 September 2025 at [64]

[18] Applicant's schedule of supports dated 17 April 2025

[36] WRMF and National Disability Insurance Agency [2020] FCAFC 79 at [143]

[40] Respondents SFIC dated 2 September 2025 at [49],R1

[45] WRMF and National Disability Insurance Agency [2020] FCFFC 70 at [143].

[46] Applicant's schedule of supports filed 17 April 2025

[56] In relance also of report of M Houston - R3 at [35]

[70] Applicant's schedule of supports filed 17 April 2025

[71] Applicant's schedule of supports filed 17 April 2025

[78] R3 at page [39] - [40] Ms Houston citation McMillan, J., Moo, A., Arora, R. & Costa, B. (2018). The Clinical effectiveness and current practice of art therapy for trauma - Evidence Review. Institute for Safety, Compensation and Recovery Research. March 2018, Evidence Review 212.https://www.tac.vic.gov.au/\_\_data/assets/pdf\_file/0016/270232/Art-Therapy-2018-Full-Report.pdf 26

S Vogel, S.W., Mullins, K.L. & Kumar, S (2024): Art therapy for children and adolescents with autism: a systematic review, International Journal of Art Therapy, DOI: 10.1080/17454832.2024.2343373 https://doi.org/10.1080/17454832.2024.2343373

[79] See also Rule 3.2(a) NDIS(Supports for Participants) Rules 2013

[81] Applicant's Schedule of supports filed 17 April 2025

[82] Respondent's SFIC filed 2 September 2025 at [101]

[86] [2024] FCA 616

[87] [2024] FCA 616 at [13]

[89] Minister for Immigration and Citizenship v Li [2013] HCA 18 at [28] (French CJ).

[93] M's schedule of supports file 17 April 2025

[94] Respondent's SFIC filed 2 September 2025 at [105] to [117]

[95] Which are currently proceeding before the Administrative Review Tribunal, at [5]

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