a) can alert the applicant and her carers when a seizure is going to occur; > > b) can wake the applicant's carers when a seizure is occurring during the night (thus obviating the need for overnight supervision); and > > c) take steps when the applicant is having a seizure, to move in a way to protect the applicant while she is having a seizure; > > d) help the applicant to feel more comfortable and secure in accessing the community and help her feel safe before, during and after a seizure; > > e) help with dropped items and other small tasks when the applicant is in her wheelchair.

5. The evidence that the applicant's dogs have important abilities that assist with the applicant's seizures is sparse. A further difficulty is that the nature of the applicant's seizures is not well understood. Why this is significant in assessing the eligibility of an assistance animal is best explained by reference to the medical evidence.
6. In 2016, Dr Kenneth Myers described and categorised the applicant's seizures.[25] He noted that the applicant had not had a tonic-clonic seizure,[26] since 2014 after commencing clonazepam. However, the applicant did suffer a number of different kinds of seizures reasonably regularly. Those seizures manifested as:

a) staring spells; > > b) myoclonic jerks; > > c) drop attacks; > > d) leg stiffening and extension and shaking events; and > > e) events involving arm stiffening and twisting.

7. Dr Myers described the applicant's most common seizure event as involving leg extension and general stiffening. These events were said to have features of 'psychogenic nonepileptic seizures; however, this cannot be definitely confirmed without capturing an event on EEG'.
8. A plan was developed for an admission for long term video EEG monitoring to determine if the events were epileptic seizures.
9. In 2021 Dr Norton reported on the applicant. He noted:

My understanding of this and I am by no means a Paediatric Neurologist, is that the severe myoclonus and tonic clonic seizures often settle during adulthood and to some extent this might explain why it is the perception of Felicity and her family that her tonic clonic seizures have really not been an issue for many years... > > However, what complicates the presentation is that there are significant issues with behaviour and various diagnoses have been given by psychologists and doctors with special interest in autism and behavioural issues, including psychiatrists and there is no doubt that Felicity has major issues and Attention Deficit Disorder has been added to the problem list. Letters from 2014 onwards from a psychiatrist, suggests that she has "complex diagnostic picture", associated with her Dravet syndrome and intellectual delay. She has anxiety and has been labelled as having an oppositional disorder as well. > > Be that as it may, let me say to you that the episodes which her mother recognises as being different from her tonic clonic seizures, are prolonged episodes of switching off and being unrousable, often with eyes closed and indeed for the last several years, the case notes documented by various other specialists and physicians and psychiatrists, that these episodes may well be functional[27], what used to be called "pseudo seizures", years ago. > > To this end, she then went to really the best hospital in Australia to study this, namely the Austin Hospital, where she came under the care of a world authority on genetic epilepsy syndromes, namely Ingrid Scheffer. After prolonged monitoring of several days, it was felt that the episodes which were causing concern were in fact functional and behavioural and were not true epileptic seizures in the accepted sense.[28]

10. The applicant's family continues to report events, but the doctor noted: 'I am unable to advance my diagnostic accuracy without access to current videos of these events'. He went on to say, 'If indeed [video can be provided] then I [can] provide an independent [opinion] as to whether these ongoing events are functional, which indeed I suspect they are'.
11. He concluded:

Therefore, in summary, indeed that it would appear that is has been many, many years since this young woman has had what I would have called a generalised tonic clonic seizure or myoclonic jerks and that these episodes of which the family complain are not epilepsy.

12. Dr Norton retired from neurology practice and the applicant's care was moved to Dr Frasca. His exposure to the applicant was limited and he appeared to be completely unaware of the concern that the applicant's seizures were functional, rather than epileptic.[29] He was unaware (indeed surprised) that the applicant had previously undertaken horse riding and was currently pursuing her interest in becoming an actress. He was however able to confirm that the applicant attended the emergency department on a number of occasions over the last three years, reporting seizures. He described very limited interaction with the applicant during appointments. He noted that she attended in a wheelchair, but symptom reporting was all done by the applicant's mother or sister.
13. This history of the investigations of the applicant's seizures indicates that there is significant medical uncertainty about the underlying cause of the seizures - in particular whether they are caused by abnormal electrical activity in the brain or whether they are behavioural and have a psychological cause.
14. In the event that the applicant's seizures are of the latter variety, I could not be satisfied that the provision of a seizure animal will be effective and beneficial for the applicant having regard to current good practice, as is required by s 34(d) of the NDIS Act. In particular, if the applicant's seizures are functional rather than epileptic, I would need to have evidence that a seizure dog can provide assistance to the applicant. Dr Frasca did not provide that evidence and was highly qualified in his evidence concerning the utility of an assistance dog.
15. Further, given the evidence that the applicant's seizures may be functional, it is not clear to me that a functional seizure could occur while the applicant is asleep. Unless there is evidence about that, I could not be satisfied that the presence of a dog is providing any benefit. Even if a dog was capable of providing such a support, it is unclear whether the support could be replicated by a cheaper alternative, such as a wearable seizure monitor. In any event, the evidence about the abilities of both Baxter and Sparkles in this regard is sparse.
16. There is no evidence before me that Sparkles has ever anticipated with any accuracy a seizure. The evidence in this regard suggests that Sparkles has no special ability. The evidence given was that Sparkles anticipates a seizure 'sometimes just before it...other days it can be a day and a half, two days' before it happens.[30] It is doubtful that there is any utility in an animal alerting someone to the possibility of a seizure which is either imminent or will occur at some point over the next 48 hours.
17. No specific evidence about Sparkles saving the applicant from injury by moving to a different position was given.
18. Dr Frasca did not give any evidence that could be regarded as supportive of a seizure dog being reasonable and necessary in the applicant's circumstances. Given that the applicant has constant daily adult supervision and convincing evidence is lacking that Sparkles has ever been useful overnight, I am not satisfied that either Sparkles or Baxter should be funded as a reasonable and necessary support. The other support that is provided by an assistance animal does not justify the expense.
19. On the material available, I am not satisfied that an assistance animal represents value for money.

1. The applicant and her family have resisted any update to the assessment of the home modification supports she may need. The respondent has offered to pay for an independent assessment. This has been rejected by the applicant. As a consequence, most of the evidence about the applicant's living conditions dates from 2018.
2. The applicant permitted a builder and an occupational therapist to attend the house and assess it in 2018, but no access has been granted since then.
3. Resistance to updating the evidence is troubling in and of itself. It is a breach of the applicant's duty to assist the Tribunal and has, not surprisingly, resulted in the respondent being unwilling to accept inclusion of supports in this category in circumstances where it cannot be satisfied that they are reasonable and necessary in the absence of a reasonably up to date assessment.
4. The problem has been magnified by the applicant's lack of honesty in her (and her family's) dealings with the Tribunal.
5. In a statement of facts, issues and contentions given to the Tribunal on 4 November 2024, the applicant included the following:

Bathroom > > Due to Felicity's multiple disabilities and the support that she requires within all areas of the home. Felicity needs someone with her 24/7. > > Due to Felicity's disabilities she may fall, drop while doing daily tasks such as showering, toileting, etc. Having the bathroom modified was and is to allow Felicity to have access to a large space for if she has a seizure can be placed on the floor with towels under her, have heavy duty rails to help her hold on to if she is not feeling good. > > Shower chair with back rest if she is unable to stand while having a shower especially when washing hair or having a bad day (increased seizure activity). > > Bathtub will help allow Felicity to be able to have a place to relax where she can have a bit more time to relax and not worry about getting exhausted. > > Laundry > > Due to not having a bathroom for over 5 years Felicity has used this space to have a shower (wash) using a camping tent, bucket and hose. > > The Laundry floor has tiles coming up due to water damage, water coming out of brick walls outside also due to water damage. > > The laundry is becoming unsafe for Felicity to walk on as may trip and says she doesn't feel safe in this area.

6. In relation to a functional capacity assessment dated 7 June 2018 that reported that 'there is no shower or toilet in place ... Felicity is showered using a camping tent and shower hose in the laundry', the applicant submitted in her statement of facts, issues and contentions at [31]:

...[The functional capacity assessment] is still relevant. Felicity doesn't wish to have any more assessments done...[that] is not necessary due to nothing having changed in the last 6 years.

1. As the hearing progressed, it became clear that quite a lot had changed. Since the assessments were done in 2018 the bathroom has been completely re-done. The applicant is no longer showering in the laundry and had not done so since June 2024. The passage from the applicant's statement of facts, issues and contentions set out above is generally misleading.
2. This discovery only served to confirm the respondent's reluctance to approve supports based on assessments that were done in 2018. Those assessments needed to be updated by reference to accurate information so that a proper assessment of the applicant's entitlements under section 34 could be made. The fact that the applicant has not allowed an assessment to be undertaken and has misled the Tribunal about basic factual matters makes it very difficult to approve a Statement that includes any of the supports she seeks. There is however some evidence that I regard as reliable that permits me to include some of the supports which the applicant seeks in her Statement.
3. First, based on the evidence of the applicant's sister Lauren given at the last hearing, I am satisfied that she has mobility problems and cannot walk independently for distances greater than 200 meters.
4. In those circumstances, provision of a wheelchair and allowance for its maintenance is appropriate. So much is conceded by the respondent. In my view, this has the consequence that other home modifications directed at improving wheelchair access and manoeuvrability in the house are also appropriate and meet the criteria in section 34.
5. Second, based on the evidence of Dr Frasca, I am satisfied that the applicant continues to suffer seizures. While the cause of the seizures remains obscure, the fact of them is not. Dr Frasca was able to confirm recent attendances at the hospital as a result of seizures. That is sufficient to satisfy me that modifying access to the premises, access to the bathroom and access to the applicant's bedroom are reasonable and necessary supports which should be funded. These are modifications that assist a participant to live as independently as possible and to live safely at home and therefore fall within Schedule 1 of the Back on Track Rules.
6. Addressing the section 34 criteria in relation to these modifications I am satisfied that:

y) z) > > > a) the home modifications are necessary to address the needs of the applicant arising from her Dravet's syndrome and related seizures and that these meet the disability requirements of section 24; > > a) > > > b) the supports will assist the applicant to continue to live as safely and independently as possible; > > > > c) these modifications will allow the applicant to move more safely about her home thus increasing her social participation; > > > > d) the support represents value for money. The alternative to making these modifications is to have the applicant cared for elsewhere by non-family members. That would involved enormous expense to the Scheme. The modification of the family home to accommodate the applicant's disabilities and allowing her to stay there long term represents value for money; > > > > e) the modifications will be beneficial having regard to current good practice - they will assist in avoiding injury and allow for assistance to be provided more rapidly; > > > > f) although the modifications are to a family home, they are modifications necessitated by the applicant's impairments. In those circumstances it is not reasonable to expect the family and others to bear all of the expense of the home modifications; and > > > > g) as noted above, the support is a NDIS support for the participant.

7. After the hearing, the respondent conceded that the bathroom modifications with the exception of:

a) the stone spa bath and accessories; > > b) the vanity cupboard and fittings; and > > c) the full height tiles

were reasonable and necessary supports for which funding should be included in a statement, with payment contingent upon receiving an itemised invoice.

1. On this basis, I am prepared to include the following items for funding in the applicant's Statement:

a) Driveway threshold repairs; > > b) Non-slip application to outdoor tiles on front landing; > > c) Changes to the entrance to enhance access for emergency services attending the home following a seizure; > > d) The bathroom modifications with the carve-out identified by the respondent; > > e) Relocation of the applicant's built in wardrobe; > > f) Reinstatement of the linen cupboard; > > g) Other changes to improve the applicant's ability to move about the home including installation of rails for the internal stairs and application of non-slip paint to the stairs; and > > h) Other changes to improve the applicant's rear access including provision of a vertical rail installed on the door frame, non-slip paint to the rear stairs and installation of a banister rail and mid rail as proposed in the 2018 occupational therapists report.

2. Given the unsatisfactory evidence in relation to the applicant's current capacities and activities and the age of the occupational therapist's report, I am not satisfied that the section 34 criteria are met in relation to the many other repair and renovation items that are sought. Many appear to have the character of home improvements that it is appropriate for the applicant's family to fund. This is particularly so in relation to the changes sought to the kitchen and the barbecue area and the carport and, some of the higher end additions to the bathroom including floor to ceiling tiles, vanity cabinets and spa bath.

1. I am not satisfied that any car modifications constitute reasonable and necessary supports.
2. The applicant is mobile and can get herself in and out of an ordinary car. She needs a wheelchair to be stowed but the wheelchair is a manual chair pushed by members of her family. There is insufficient evidence to support the conclusion that the applicant is at risk in the current vehicle if she has a seizure. In any event, there is no reliable up-to-date evidence as to what vehicle the family uses to transport the applicant.
3. In these circumstances I am not satisfied that the requirements in section 34 are met in relation to the car modifications sought.

1. Application 2019/7660 is dismissed pursuant to section 101 of the ART Act, on the basis that it is lacking in substance.
2. In relation to application 2020/2025, I set aside the decision under review and I direct that the respondent prepare a statement of participant supports consistent with these reasons for approval by the Tribunal on or before 19 May 2025.

[1] T-Documents (2020/2025), T7, 188-189.

[3] Applicant's statement of facts, issues and contentions dated 4 November 2024 [67]-[77]; applicant's statement of facts, issues and contentions dated 26 February 2021 [55]-[58].

[7] T-Documents (2020/2025) T3, 107-141; T4, 142-167.

[10] T-Documents (2019/7660), T2, 21-24.

[12] T-Documents (2020/2025), T2, 99-106.

[13] The new 'plan' can be found at: T-Documents (2020/2025), T9, 212-226.

[15] Section 129, National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No 1) Act 2024.

[18] Respondent's statement of facts, issues and contentions dated 15 February 2025 [18],[38]. Respondent's amended second statement of facts, issues and contentions dated 1 November 2024 [8].

[20] See: Tender Bundle, tabs 8, 11, 13; Exhibit A2.

[23] Respondent's amended statement of facts, issues and contentions [7.5.12].

[24] It has not been necessary to formally determine whether that is the case.

[26] Which involves a 'tonic phase' characterised by loss of consciousness and muscle stiffening and a 'clonic phase' characterised by rhythmic jerking.

[27] The functional/epileptic distinction aims to distinguish symptoms, signs and syndromes that can be explained by electrical changes in the brain from those that cannot.

[29] The difference being that epileptic seizures are caused by abnormal electrical activity in the brain, and functional seizures are not.