Decision: The Tribunal sets aside the decision under review and this matter is remitted to the Agency for reconsideration with directions that:

(a) The Applicant's current Statement of Participant Supports is to include the following additional supports, in the form of modifications to the Applicant's residence:

1. Construction of a concrete path to the right-hand side of the residence.
2. Construction of a concrete path to the left-hand side of the residence.
3. The installation of a mobility scooter charging point in the patio area.
4. Widening of the rear garage door.

(b) The additional supports are to be constructed/installed as provided in the relevant building quotations as noted in this decision.

(c) All other supports in the Applicant's current Statement of Participant Supports, excepting any one-off assistive technology and home modification supports already provided, are to be replicated from the date on which the supports specified in paragraph (a) are included in the Applicant's Statement of Participant Supports until the reassessment date.

NATIONAL DISABILITY INSURANCE SCHEME - adult participant - reduced functional mobility - reasonable and necessary supports - complex home modifications - construction of concrete pathways - door widening - decision under review set aside and matter remitted to Respondent to include specified supports in Applicant's Statement of Participant Supports.

Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

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

National Disability Insurance Scheme Act 2013 (Cth)

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

Administrative Review Tribunal Rules 2024

National Disability Insurance Scheme (Supports for Participants) Rules 2013

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

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

Beezley v Repatriation Commission [2015] FCAFC 165

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

G v Minister for Home Affairs [2019] FCAFC 79

McGarrigle v National Disability Insurance Agency [2017] FCA 308

National Disability Insurance Agency and Warwick [2025] FCAFC 100

National Disability Insurance Agency v WRMF [2020] FCAFC 79

QGRY and National Disability Insurance Agency [2025] ARTA 598

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

Shi v Migration Agents' Registration Authority [2008] HCA 31; (2008) 235 CLR 286

Sutherland v National Disability Insurance Scheme [2024] AATA 411

Warwick v National Disability Insurance Agency [2024] FCA 16

National Disability Insurance Scheme Operational Guidelines - 'Reasonable and Necessary Supports' and 'Home Modifications'

National Disability Insurance Scheme policy - 'Home modifications - Guidance for builders and designers' Version 2.0, September 2022

1. Ms Svetlana Kuzio-Barnes is the Applicant in this review (the Applicant). Since 28 October 2020 Ms Kuzio-Barnes has been a participant in the National Disability Insurance Scheme (the NDIS). The National Disability Insurance Agency (the Agency) administers the NDIS and is the Respondent in this review.
2. To participate in the NDIS, it is necessary for a person to meet the access criteria[1] contained in the National Disability Insurance Scheme Act 2024 (Cth) (the NDIS Act). The Agency advised that Ms Kuzio-Barnes was granted access to the NDIS on the basis of her meeting the disability requirements[2] in the NDIS Act; specifically, on the basis of psychosocial impairments arising from a diagnosis of post-traumatic stress disorder (PTSD), noting also that Ms Kuzio-Barnes has physical impairments arising from diagnoses of ankylosing spondylosis, psoriatic arthritis, sacroiliitis, fibromyalgia, panic disorder with agoraphobia, major depressive disorder and chronic back pain.[3]
3. This review is about the supports that are to be provided to Ms Kuzio-Barnes and funded by the Agency under the NDIS. The four specific supports in issue, as explained below, all concern requested modifications to Ms Kuzio-Barnes' home.

PROCEDURAL HISTORY OF THE TRIBUNAL'S REVIEW AND ISSUES IN THE REVIEW

1. On 17 November 2022 a delegate of the Chief Executive Officer (the CEO) of the Agency approved a Statement of Participant Supports (SOPS) in an NDIS plan for Ms Kuzio-Barnes.[4] This was Ms Kuzio-Barnes' second plan under the NDIS.
2. On 24 November 2022 Ms Kuzio-Barnes requested that the Agency review the decision that had been made about her SOPS.[5] An internal review was conducted by the Agency, and on 18 January 2023 a delegate of the CEO of the Agency made a decision which varied the original decision and provided some additional supports, resulting in the approval of a SOPS for Ms Kuzio-Barnes for the period from that date until 18 November 2023.[6]
3. After receiving that internal review decision (the decision under review), on 14 February 2023 Ms Kuzio-Barnes lodged an application for review with the former Administrative Appeals Tribunal (the AAT), pursuant to section 103 of the NDIS Act.[7]
4. On 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 (Cth) proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
5. Upon receiving notice of the application for review made to the Tribunal, the Agency filed with the Tribunal copies of documents relating to that application, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the T-Documents).
6. As can be seen from the date Ms Kuzio-Barnes lodged her review application in the AAT, the matter has had a lengthy history in the Tribunal. During the course of the review a further NDIS plan was approved for Ms Kuzio-Barnes, for the period from 11 June 2024 to 11 June 2025. Pursuant to section 103 of the NDIS Act, the review application before the Tribunal is also taken to be an application for review of the decision to approve the SOPS in that new plan.
7. Initially, there was a large number of supports in issue in the review. As the review progressed through the Tribunal's alternative dispute resolution processes, Ms Kuzio-Barnes and the Agency were able to reach agreement that many of those supports were 'reasonable and necessary' supports for Ms Kuzio-Barnes, and these supports have been or are to be funded.
8. It is useful to set out those supports upon which agreement was reached, as they provide some indication of the extent of Ms Kuzio-Barnes' impairments and her support needs, and the Agency's position in relation to some other home modifications that were requested. The following list was outlined in the Agency's Statement of Facts, Issues and Contentions (the Agency's SFIC),[8] which was the Agency's primary written submission before the Tribunal at the hearing:
   • 45 hours per year occupational therapy;
   • 3 hours per year podiatry;
   • funding of $600 for one pair of orthotics;
   • electric powered bed frame with adaptive features and anti-pressure mattress (not funded in Current Plan as already funded and purchased during prior plan period);
   • a total of 65 hours per year of improved relationships funding;
   • 42 hours per week support worker support for personal care and domestic support;
   • a total of 20 hours per week support worker support for social, community and civic participation;
   • 3 hours per year dietician support;
   • 54 hours per year physiotherapy;
   • 54 hours per year exercise physiology;
   • 52 hours per year level 2 therapy assistance;
   • funding of $18,778.66 for continence support;
   • funding for Permobil M3 powered wheelchair;
   • funding for Pride Pathrider 140XL mobility scooter;
   • funding for home lift installation; and
   • funding for complex home modifications including door widenings, bathroom modifications, ramp access to front entry and ramp access to rear entry.
9. By the time of the hearing, only four supports sought by Ms Kuzio-Barnes remained in issue. All were in the nature of further modifications to Ms Kuzio-Barnes' home. They were described as follows in the Agency's SFIC:[9]
   • a concrete path to the right-hand side of Ms Kuzio-Barnes' residence at a cost of $12,414.00 (Right Path);
   • a concrete path to the left-hand side of Ms Kuzio-Barnes' residence at a cost of $12,895.50 (Left Path);
   • an automated gate to the patio area, alterations to the screen doors to the patio area and installation of a scooter charging point in the patio (Patio Modifications); and
   • garage door widening at a cost of $6,173.40 (Garage Door Widening).
10. Accordingly, the issue before the Tribunal upon the hearing of the review was whether the four requested supports are reasonable and necessary supports for Ms Kuzio-Barnes.
11. The review hearing was held on 24 and 25 March 2025, by video (via Microsoft Teams). Ms Kuzio-Barnes represented herself, with Mr Hartnett of Counsel appearing for the Agency, instructed by Maddocks Lawyers.
12. At the hearing, the Tribunal had before it the T-Documents, which became Exhibit 1, and other materials lodged by the parties during the review. Most of these relevant evidentiary and other materials were collated in the form of a Hearing Bundle, prepared and filed by the Agency, which became Exhibit 2. During the hearing Ms Kuzio-Barnes provided a further medical report which became Exhibit 3,[10] and the Agency provided an NDIS Policy document, Home modifications guidance for builders and designers,[11] which became Exhibit 4.
13. During the hearing Ms Kuzio-Barnes gave evidence and also called Ms Elizabeth Haberley, an occupational therapist, to give evidence. The Agency called Mr Chris O'Dowd to give evidence. Mr O'Dowd is an occupational therapist who was engaged by the Agency to undertake an assessment and prepare a report for the purpose of this review.

1. In undertaking a review, the Tribunal's role is to come to its own independent conclusion, on the basis of the material before it, as to what is the correct and preferable decision. In Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 Smithers J said:

The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which, in its view, was objectively the right one to be made.[13]

The Tribunal effectively 'stands in the shoes' of the maker of the decision under review.[14] In undertaking its review, the Tribunal may exercise all of the powers and discretions that are conferred on the maker of the decision under review.[15] Also, the Tribunal may consider materials additional to those that were before the decision-maker.[16]

1. In review proceedings of this nature neither party bears a formal onus of proof. However, the Tribunal can only make its decision on the basis of material which is probative and relevant of the matters required by the applicable statute. If an applicant seeking access to a benefit or interest under a legislative scheme does not provide evidence and information sufficient to meet the relevant statutory requirements (which here are the criteria in the NDIS Act relating to supports), they cannot succeed.[17]

1. After Ms Kuzio-Barnes' review application was filed with the AAT, substantial changes were made to the NDIS Act by amending legislation, being the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (the amending Act). Of particular note is the changes that were affected by the amending Act to the NDIS planning provisions, including section 34 (reasonable and necessary supports); the definition of 'NDIS support' contained within section 10; and changes to the disability and early intervention requirements in sections 24 and 25. These changes were effective from 3 October 2024.[18] In that context, a preliminary issue arises as to whether the relevant provisions in the NDIS Act to be applied in this review are those which existed at the time when the decision under review was made, or those, as amended, that commenced on 3 October 2024.[19]
2. The amending Act included transitional provisions. Sub-items 129(1) and (2) of Schedule 1 of the amending Act provide that sections 33, 34 and 35 as in force on and after 3 October 2024 apply to a SOPS approved or varied on or after that date, irrespective of whether the participant's plan came into effect before, or on or after commencement. This means that as the Tribunal's decision is being made after 3 October 2024, the amended provisions apply in considering Ms Kuzio-Barnes' SOPS.
3. Changes made to sections 43 and 44 of the NDIS Act, dealing with plan management of funding for supports, apply from 3 October 2024 to any person who is a participant in the NDIS on or after that date.[20]
4. Further, pursuant to sub-item 138 of Schedule 1 of the amending Act transitional rules, being the National Disability Insurance Scheme (Getting the NDIS back on Track No.1) (NDIS Supports) Transitional Rules 2024 (the Transitional Rules) and the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (the Miscellaneous Transitional Rules) were made, and apply in the review of a decision concerning a SOPS completed on or after 3 October 2024.

1. The NDIS Act contains a statement of its objects, in section 3(1). They include to:
   • support the independence and social and economic participation of people with disability (section 3(1)(c));
   • provide reasonable and necessary supports, including early intervention supports, for participants in the NDIS (section 3(1)(d));
   • enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports (section 3(1)(e));
   • promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community (section 3(1)(g); and
   • protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the NDIS (section 3(1)(ga)).

Section 3(3)(b) provides that in giving effect to the objects of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.

Section 4 of the NDIA Act provides a number of general principles to guide actions under the Act. They include the following:

4 General principles guiding actions under this Act

(1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.

(2) People with disability should be supported to participate in and contribute to social and economic life.

(3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.

(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.

(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.

(6) People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation.

(8) People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives.

(11) Reasonable and necessary supports for people with disability should:

(a) support people with disability to pursue their goals and maximise their independence; and

(b) support people with disability to live independently and to be included in the community as fully participating citizens; and

(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.

(12) The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.

(12A) The relationship between people with disability and their families and carers is to be recognised and respected.

(16) Positive personal and social development of people with disability, including children and young people, is to be promoted.

(17) It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to the need to ensure the financial sustainability of the National Disability Insurance Scheme.

1. Chapter 1 of the NDIS Act also contains a number of definitional provisions, including, within section 10, a lengthy definition of the term 'NDIS support'.
2. Chapter 3 of the NDIS Act deals with NDIS participants and their plans. Part 1A (section 17A) within that Chapter provides a number of principles relating to the participation of people with disability that must be had regard to 'in performing the CEO's functions and exercising the CEO's powers under this Chapter'. These principles are in addition to those set out within section 4 of the NDIA Act, as set out above. Section 17A provides:

17A Principles relating to the participation of people with disability

(1A) In performing the CEO's functions and exercising the CEO's powers under this Chapter, the CEO must have regard to the principles in this section.

(1) People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.

(2) People with disability will be supported in their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised.

(3) The National Disability Insurance Scheme is to:

(a) respect the interests of people with disability in exercising choice and control about matters that affect them; and

(b) enable people with disability to make decisions that will affect their lives; and

(c) support people with disability to participate in, and contribute to, social and economic life.

(4) The principles in this section are in addition to the principles in section 4 to which the CEO is to have regard in performing the CEO's functions and exercising the CEO's powers under this Act.

1. In its SFIC, the Agency noted the following comments of the Full Court of the Federal Court in the decision in National Disability Insurance Agency v WRMF [2020] FCAFC 79 (WRMF):

... the supports to be provided to a person who qualifies as a participant are intended to accommodate an individual's particular impairments and to assist that particular individual to be a participating member of the Australian community, and to do so on the basis of the values set out in the objects and guiding principle clauses of the Act, as well as the values set out in section 17A of the Act.[21]

1. Part 2 of Chapter 3 deals with participants' plans. Section 31 within that Part provides for a number of principles relating to plans:

31 Principles relating to plans > > The preparation, variation, reassessment and replacement of a participant's plan, and the management of the funding for supports under a participant's plan, should so far as reasonably practicable: > > (a) be individualised; and > > (b) be directed by the participant; and

(c) where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and

(ca) where relevant, recognise and respect the relationship between participants and their families and carers; and

(d) strengthen and build capacity of families and carers to support participants who are children; and

(da) if the participant and the participant's carers agree - strengthen and build the capacity of families and carers to support the participant in adult life; and

(e) consider the availability to the participant of informal support and other support services generally available to any person in the community; and

(f) support communities to respond to the individual goals and needs of participants; and

(g) be underpinned by the right of the participant to exercise control over his or her own life; and

(h) advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and

(i) maximise the choice and independence of the participant; and

(j) facilitate tailored and flexible responses to the individual goals and needs of the participant; and

(k) provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.

1. Section 32 requires the CEO to facilitate the preparation of a plan for a participant in the NDIS.
2. Section 33 specifies matters that must be included in a participant's plan. These include a statement of goals and aspirations (section 33(1)); and a SOPS - which is to be prepared 'with the participant and approved by the CEO' (section 33(2)).
3. Section 33(2)(a) to (e) specify the matters that must be in the SOPS. These include the general supports (if any)[22] that will be provided to the participant (section 33(2)(a); the 'reasonable and necessary supports' that will be funded by the NDIS (section 33(2)(b)); the date by which or the circumstances in which the Agency must review the plan (section 33(2)(c)); and how the funding for supports (section 33(2)(d)) and other aspects of the plan (section 33(2)(e) are to be managed.
4. Section 33(3) provides how supports may be specified in a plan:

The supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise.

1. By section 33(5), in deciding whether or not to approve a SOPS under section 33(2), the CEO must:

(a) have regard to the participant's statement of goals and aspirations; and

(b) have regard to relevant assessments conducted in relation to the participant; and

(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and

(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and

(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and

(f) have regard to the operation and effectiveness of any previous plans of the participant; and

(g) have regard to whether section 46 (acquittal of NDIS amounts) was complied with in relation to any previous plan for the participant.

1. Section 34 is entitled 'Reasonable and necessary supports'. Section 34(1) specifies the requirements, of which the CEO must be satisfied, in relation to the funding of each support in the SOPS. These requirements are:

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

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

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

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

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

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

(f) the support is an NDIS support for the participant.

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

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

1. All of the requirements in section 34(1) must be met. Further, section 34(2) provides that NDIS Rules may provide 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 above requirements set out paragraphs (1)(aa) to (f) of section 34(1).
2. As noted, the amending Act made changes to section 34; these included adding new sections 34(1)(aa) and (f). The new section 34(1)(f), in referring to an 'NDIS support', imports the definition of that term as set out in section 10. That section provides also that rules may declare whether or not a support is an NDIS support; as noted, transitional rules to this effect have been introduced.
3. While the phrase 'reasonable and necessary supports' is not defined in the NDIA Act, it has naturally been the subject of consideration. In the case of McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle) Mortimer J (as she then was) noted:

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".

Relevantly to this proceeding, the factor set out in s 34(1)(e) ("funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide") goes to both whether a support is "reasonable" (in the sense of it being subject to provision or funding by the Agency) as well as whether it is "necessary" (in the sense of whether it is a support that cannot be provided by others).

In my opinion, the text and context of s 33(5)(c), read with s 34(1) indicates that the CEO (or the delegate or Tribunal) must either be satisfied that a support has the character of being a reasonable and necessary support, or that it does not. Once a support is identified and described (to take an example away from this case, speech therapy lessons three times a week), then the question for the CEO (or the delegate or Tribunal) is whether she or he is satisfied that support, as identified, is reasonable and necessary for that particular participant. It may be open to the CEO to be satisfied that a differently identified support is reasonable and necessary: in this example, speech therapy lessons once a week. That determination can only be made on the basis of probative evidence.[23]

1. The Full Court of the Federal Court has said the following of the phrase in WRMF:

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 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'. > > In our opinion, such a danger is present on the construction arguments presented by the Agency. 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. It is not accidental, in our opinion, that Parliament has chosen the term 'participant' to describe individuals who will receive funded support: the choice of that term reinforces, as we have sought to explain, that the driving objective of this Act is the holistic, improved and increased participation by persons with disability in the life of their communities, and in life itself. > > ... > > Ultimately, as the Full Court in McGarrigle recognised, the statutory task of determining the contents of a participant's plan, and what are the reasonable and necessary supports, is a fact‑intensive exercise. More so than in many legislative schemes that confer an administrative benefit, the circumstances of each participant will vary greatly. The exercise is highly individualised. There will be an area of 'decisional freedom' (Minister for Immigration and Citizenship v Li at [28] (French CJ)) for the decision‑maker, about what supports fall within this description, given the circumstances of a particular individual. Provided no substantive legal error attends the choices made, it is possible for reasonable minds exercising the power under s 33(2) to differ. So too on merits review. [24]

2. Section 35(1) states that the NDIS Rules may make provision in connection with the funding or provision of reasonable and necessary supports or general supports, including but not limited to prescribing:

(a) methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding, the reasonable and necessary supports or general supports that will be funded or provided under the National Disability Insurance Scheme; and

(b) reasonable and necessary supports or general supports that will not be funded or provided under the National Disability Insurance Scheme; and

(c) reasonable and necessary supports or general supports that will or will not be funded or provided under the National Disability Insurance Scheme for prescribed participants.

1. Section 35(2) provides that the NDIS rules referred to in subsection (1) may relate to the manner in which supports are to be funded or provided and by whom supports are to be provided.
2. Section 9 of the NDIS Act defines 'National Disability Insurance Scheme Rules' as meaning the rules mentioned in section 209 of the NDIS Act. Section 209(1) provides:

209 The National Disability Insurance Scheme rules

(1) The Minister may, by legislative instrument, make rules called the National Disability Insurance Scheme rules prescribing matters:

(a) required or permitted by this Act to be prescribed by the National Disability Insurance Scheme rules; or

(b) necessary or convenient to be prescribed in order to carry out or give effect to this Act.

1. NDIS rules relating to supports have been made - they are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules). The preamble section of the Support Rules states:

These Rules are made for the purposes of sections 33 and 34 of the Act.

These Rules are about assessment and determination of the reasonable and necessary supports that will be funded for participants under the NDIS.[25]

1. In the recent decision of National Disability Insurance Agency v Warwick [2025] FCAFC 100, the Full Court of the Federal Court has explained that the relevant function of the Support Rules is:

... to prescribe, in more detail than the broad criteria in section 33 and section 34, matters that may and may not be included in a statement of participant supports, or matters to which regard is to be had in the preparation or approval of the statement.

1. The Outline contained in the Support Rules provides that Part 3 of the Rules set out criteria or considerations that the CEO is to use in deciding whether the CEO is satisfied in relation to some of the matters set out in Rule 2.3,[26] including value for money (paragraph 2.3(c)); whether the support is effective and beneficial (paragraph 2.3(d)); and taking account of the expectations of what is reasonable to expect families, carers, informal networks and the community to provide in informal supports (paragraph 2.3(e)). Relevantly, this Part of the Support Rules provides:

3.1 In deciding whether the support represents value for money in that the costs of

the supports are reasonable, relative to both the benefits achieved and the cost of

alternative support, the CEO is to consider the following matters:

(a) whether there are comparable supports which would achieve the same

(b) whether there is evidence that the support will substantially improve the life

stage outcomes for, and be of long-term benefit to, the participant;

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

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

(i) the comparative cost of purchasing or leasing the equipment or

(ii) whether there are any expected changes in technology or the

participant's circumstances in the short term that would make it

inappropriate to fund the equipment or modifications;

(e) whether the cost of the support is comparable to the cost of supports of the

same kind that are provided in the area in which the participant resides;

(f) whether the support will increase the participant's independence and

reduce the participant's need for other kinds of supports (for example,

some home modifications may reduce a participant's need for home care).

Effective and beneficial and current good practice

3.2 In deciding whether the support will be, or is likely to be, effective and beneficial

for a participant, having regard to current good practice, the CEO is to consider

the available evidence of the effectiveness of the support for others in like

(a) published and refereed literature and any consensus of expert opinion;

(b) the lived experience of the participant or their carers; or

(c) anything the Agency has learnt through delivery of the NDIS.

3.3 In deciding whether the support will be, or is likely to be, effective and beneficial

for a participant, having regard to current good practice, the CEO is to take into

3.4 In deciding whether funding or provision of the support takes account of what it is

reasonable to expect families, carers, informal networks and the community to

provide, the CEO is to consider the following matters:

(i) that it is normal for parents to provide substantial care and support for children; and

(ii) whether, because of the child's disability, the child's care needs are substantially greater than those of other children of a similar age; and

(iii) the extent of any risks to the wellbeing of the participant's family

(iv) whether the funding or provision of the support for a family would

improve the child's capacity or future capacity, or would reduce any risk to the child's wellbeing;

(c) for all participants - the desirability of supporting and developing the

potential contributions of informal supports and networks within their

1. Part 5 of the Support Rules sets out general criteria for supports, and for supports that will not be funded or provided. Relevant provisions within Part 5 include the following:

Part 5 General criteria for supports, and supports that will not be funded or provided

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

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

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

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

(d) it relates to day-to-day living costs (for example, rent, groceries and utility

fees) that are not attributable to a participant's disability support needs.

5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the

following (which may be funded under the NDIS if they relate to reasonable and

(a) additional living costs that are incurred by a participant solely and directly

(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. In the case of McGarrigle [27] Mortimer J (as Her Honour then was) said the following about the Support 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, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.[28]

2. Additionally, the Transitional Rules and the Miscellaneous Transitional Rules are also now of potential application.
3. Section 7 of the Miscellaneous Transitional Rules requires that the Tribunal, in deciding upon a support, must be satisfied that the support is most appropriately funded or provided through the NDIS, 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:

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

1. The Agency has also issued some Operational Guidelines which are relevant to NDIS supports, including those guidelines entitled Reasonable and Necessary Supports and Home Modifications. Such guidelines are published on the NDIS website and are described by the NDIA as guidelines that set out some of the NDIA's 'operational information': '[T]hey explain what we need to consider and how we make decisions based on the legislation.' [29].
2. The Tribunal was also referred to the Agency's Home modifications guidance for builders and designers policy during the review.
3. Unlike NDIS Rules, NDIS Guidelines are not made pursuant to a power conferred by the NDIS Act; they are issued in an exercise of executive power.[30] As such, the Guidelines set out the NDIA's policy and provide guidance in how relevant powers are to be exercised. Ordinarily the Tribunal will apply such policy in reviewing a decision, unless the policy is unlawful, or unless its application tends to produce an unjust decision in the circumstances of the particular case.[31]

1. To place the requested supports in context, it is helpful to note some of the evidence about Ms Kuzio-Barnes' impairments, their impact on her life, and her living circumstances.
2. Ms Kuzio-Barnes is now 55 years of age. She lives by herself on a small acreage property in the Fraser Coast area of Queensland, and cares for a number of animals that live at her property - some sheep, dogs, cats and chickens. Ms Kuzio-Barnes gave evidence that she has lived at this property for 'the last 20 years.'[32] The independent Occupational Therapist engaged by the Agency to undertake an assessment during this review, Mr O'Dowd, described the home in the following terms:

Her home is spread over two levels, with a garage separate to the primary house, a long driveway from the road/front gate to her front door, an inground pool, and various garden beds/greenhoused areas.[33]

1. Ms Elizabeth Haberley is an Occupational Therapist who practises primarily in the area of home modifications. Ms Haberley has provided assistance to Ms Kuzio-Barnes, and gave evidence in the review hearing. Some reports prepared by Ms Haberley were in evidence; being an NDIS Complex Home Modification Form, dated 29 November 2023,[34] and an accompanying 'Brief for Building Works Contractor' of the same date.[35]
2. The reports compiled by Mr O'Dowd and Ms Haberley (and some others in evidence) contained photographs and floor plans of Ms Kuzio-Barnes' home, and also provided other relevant information about the home. From these sources, the following further information is noted:
   • Ms Kuzio-Barnes owns her home.
   • It was built in 2007, and is 465 square meters in size, with the overall land size being 2.12 hectares.
   • The home is highset and of two levels, tiled throughout, with five bedrooms, three bathrooms and laundry downstairs; and kitchen, dining, lounge, rumpus room, two studies and a balcony on the upstairs level.
   • The land immediately surrounding the home was reported to be 'level'.
   • Ms Kuzio-Barnes has an adult daughter who resides in Brisbane, but who intends to move back to the family home in the future, to raise her children there.
   • Remaining in the home is an NDIS goal for Ms Kuzio-Barnes, who would like to live there 'for at least the next 5 to 10 years.'
3. Ms Haberley also noted the following information in her NDIS Complex Home Modification Form:

Svetlana currently relies on assistive technology including a Zimmer hopper frame, crutches and wheelchair for all mobility. It is noted that she will also require a powered mobility device. She demonstrates extreme difficulty with all mobility due to rapid fatigue on exertion, reduced range of movement, decreased strength and very high pain levels. She uses a hired mobility scooter to access the outside of her home and requires manual wheelchair for inside access ... Svetlana added that the ability to access the entire perimeter of her home is very important for her health and safety, quality of life and ability to interact with her animals, family and property.[36]

She has extremely high risk of falls/entrapment. There are uneven ground/pebbles on the pathway access to perimeter of dwelling. Difficulty noted using hired scooter over this surface (high risk of tipping noted). Svetlana will require a suitable powered mobility device for all mobility.[37]

OT notes there are several gates that she must negotiate and observed her having extreme difficulty opening/closing and fitting mobility scooter through. OT recommends that 2 gates are modified/widened to allow PMD[38] access. This will ensure that Svetlana is able to continue with the task of caring for her animals with improved safety and independence.

OT also notes that the pathway access around dwelling is gravel/pebbles. OT observed Svetlana using her hired all terrain scooter over this surface and there is concern over scooter tipping on this uneven, moving surface. Provision of suitable 1200mm wide pathways are strongly recommended to allow Svetlana to continue to access her home and surrounding property with improved safety, independence and dignity. There is otherwise a very high risk of tipping and entrapment with potential risk of severe injury.[39]

1. A hand-drawn plan of the layout of the property as prepared by Ms Kuzio-Barnes was in evidence,[40] and based on that document and the photos of the property that were in evidence, the Agency noted the following about the property in its SFIC:

From these documents it can be seen that, looking from the front of the home:

• There is a bitumen driveway connecting the home to the garage, which is located to the left of the house. The driveway appears to be in very good condition.
• The front door is accessed by paving from the driveway, and there is a portico over the front door.
• Immediately against the left hand wall of the house and running around the back of the house is a narrow path which is two concrete pavers wide. There is a fence between the driveway and this path at the front left hand corner of the house. The Participant[41] is of the view that this path is too narrow to accommodate all four wheels of the mobility scooter (that is, only one side of the scooter would be on the path while the other side would be on the adjacent grass).
• Immediately against the right hand wall of the house from the front portico running to the patio on the right hand side of the house is a wide, flat gravel path. The Participant is of the view that the mobility scooter will not be stable on this terrain.
• Between the side door of the house on the right hand side and the pool, also on the right hand side, is a large paved patio. This is partially sheltered from the elements by the second storey of the house. At present, the sheltered area is enclosed by fly screens. The paving runs up to the pool fence.
• The Participant has a number of items of plant and outdoor furniture around the property, which are shown on the diagram.[42]

1. Ms Kuzio-Barnes' current NDIS plan, for the period from 11 June 2024 to 11 June 2025, was in evidence.[43] As required, that plan contains information about Ms Kuzio-Barnes' goals, one of which was expressed to be:

I would like to continue living in my own home and want to make it secure, safe, hazard free and wheelchair accessible.[44]

I would like to improve my daily function to safely engage in my day-today activities.

I would like to be able to reduce the effects my mental and physical state are having on my life.

I would like to increase my participation in the community to develop a socially valued role and meaningful place in the community.

I would like to retrain and develop my capacity to return to volunteer or employment.

I would like to improve my independence in all aspects of my life.

I would like to improve my health and wellbeing and increase my fitness.

1. Ms Kuzio-Barnes filed a large volume of material during the course of the review, including a detailed reply to the Agency's SFIC[45] and a lengthy statement of lived experience.[46] Additionally, Ms Kuzio-Barnes gave evidence at the hearing and made lengthy oral submissions about the supports in issue. The Tribunal also had before it the T-Documents and other evidentiary materials filed by the Agency. The following evidence summarises Ms Kuzio-Barnes' circumstances and the reasons why she has requested that the supports in issue be funded by the NDIS.
2. Ms Kuzio-Barnes sustained physical and psychosocial injuries as a result of violent criminal offending committed against her in 2018. She was diagnosed with PTSD later that year (as well as Major Depressive Disorder, Panic Disorder and Chronic Pain). Some of the impacts from her trauma and these conditions included Ms Kuzio-Barnes becoming overwhelmed and anxious upon leaving her house, experiencing difficulties with concentration and focus, withdrawing from her occupation and social interaction, and experiencing a persistent state of hypervigilance.[47]
3. The evidence regarding Ms Kuzio-Barnes' physical conditions reflects that Ms Kuzio-Barnes:
   • Experiences severe and regular pain; tightness and spasms in her lower back, pelvis, hips and lower limbs; a reduced range of motion and stiffness; fatigue; weakness and muscle wasting; incontinence; and reduced balance, fitness and functional endurance when engaging in activities such as sitting, standing and bending. These physical impairments will likely deteriorate with time, due to the nature of some of her underlying conditions, and notwithstanding treatment.
   • Does not have a functional walking capacity and requires assistive technology - crutches and/or a walker or walking frame[48] or wheelchair or mobility scooter - to mobilise, with movement (and also cold) exacerbating her pain. She wears orthotic shoes at all times.
   • Is significantly underweight.
   • Can no longer work, having been previously employed as a secondary school teacher.
   • Has minimal informal supports, being dependent upon her NDIS funded supports.
   • In undertaking WHODAS[49] assessments, generally scored across all domains indicating severe to extreme levels of impairment, reflective of high care needs.
   • Has regularly sought and received medical treatment from her General Practitioner, specialists and allied health professionals for her various conditions.[50]
4. In her statement of lived experience dated 23 June 2023, Ms Kuzio-Barnes explained how her disabilities affect her on a daily basis:

I struggle with debilitating panic attacks, severe distress, memory loss and severe cognitive dysfunction, severe fatigue and severe 10/10 pain every day, there is no break from it all even for a minute! I do not plan my day around normal every-day activities, I plan my day around managing my pain levels, PTSD and cognitive symptoms, fatigue and distress. Dependent on the quality of sleep I had, the fatigue, mental/memory dysfunction and pain are exacerbated.[51]

Pain that I am experiencing on a daily basis 24/7 is UNRELENTING and causes me significant problems in my day to day life and severely impacts my quality of life. I am unable to perform most daily functioning, household and self-care tasks without extreme pain and fatigue/exhaustion, overwhelm and exacerbation of my already severe mental health symptoms. Most tasks cause me too much pain to be able to continue and I cannot complete them safely and efficiently. Inflammation causes fatigue and decline in daily functioning also. AS,[52] PsA (psoriatic Arthritis) are autoimmune inflammatory conditions in which pain is often worse at night, which means that I only get 2-3 hours stretch of sleep and then am awake for several hours each night.[53]

1. Ms Kuzio-Barnes also explained her difficulties in mobilising and how she had experienced balance difficulties and 'many falls' and was unable to access the upper floor of her own due to her inability to safely manage stairs:[54]

I can't walk without assistive technology (2 crutches, wheelchair, mobility scooter),

have to wear specially designed orthotic shoes at all times and cannot walk without

them at all, am extremely unbalanced and have fallen many times, on the stairs,

around my home, I cannot safely mobilise on any uneven surfaces, including grass, unsurfaced areas around my home, sand.[55]

1. Ms Kuzio-Barnes noted that she has no informal supports, and consequentially relies highly upon her NDIS funded supports.[56] Her statement of lived experience contained a detailed schedule of her daily activities and challenges.[57]
2. The independent Occupational Therapist Mr O'Dowd commented in his report:

Overall it is considered that without doubt that Ms Kuzio-Barnes' is severely restricted in all areas of her life due to her extensive, significant, and permanent medical conditions.[58]

1. The evidence given by Ms Kuzio-Barnes[59] about her disabilities and their impact on her life at the hearing was similar to the information provided in the material filed by her. In her evidence Ms Kuzio-Barnes highlighted the progressive nature of some of her conditions, and also described a fall she experienced in December 2024, noting also the description of this incident provided by her physiotherapist Ms Tassoti in a report dated 4 December 2024:

I have been seeing Svetlana regularly through the NDIS for physiotherapy to manage her physical impairments, since January 2021 and saw her for a physiotherapy appointment today. I found her to be in severe pain and having great difficulty mobilising with 2 crutches due to the severe pain and inability to weight bear. She reports this is due to a fall which occurred 2 days ago when she was mobilising with 2 crutches on moving gravel outside her house. This is unsafe for her to be walking over moving gravel and is a high falls risk activity, which has now resulted in significant pain and injury, particularly to her sacro-iliac and lumbar spine joints. Ideally, Svetlana should be supervised while mobilising with 2 crutches, and she must never attempt to mobilise on crutches on any uneven, moving ground, particularly gravel, due to her extremely high falls risk.[60]

1. Ms Kuzio-Barnes also noted that initially the builder engaged to quote on the home modification works, including the concrete paths in issue, had proposed constructing a pathway around the entire house.[61] In response to the Agency not accepting this request, she had compromised by proposing the left and right paths.

1. As noted, during the course of this review the Agency agreed to provide additional supports to Ms Kuzio-Barnes. Some of those supports relate to modifications to her home, and some others relate to assistive technology for her mobility needs. Specifically, the Agency agreed to fund a powered wheelchair, a mobility scooter, the installation of a lift at Ms Kuzio-Barnes' home and other 'complex home modifications' in the form of door widenings, bathroom modifications and ramp access to the front and rear entry areas of the house. It is useful to note these supports in further detail, as they are of some relevance to the consideration of the four home modification supports that remained in issue in the review.
2. In recommending that Ms Kuzio-Barnes be provided with a powered wheelchair, an Occupational Therapist noted that while Ms Kuzio-Barnes was anticipated to continue her use of her crutches, walking frame and manual wheelchair, a powered wheelchair was sought as it could be used upon symptom and pain level exacerbation, and was of 'increasing need due to reduced walking tolerances', with the Occupational Therapist commenting '[I]t is suspected that powered wheelchair use on a full-time basis is likely to occur as per disability progression.' It was also noted that the powered wheelchair would be provided along with a mobility scooter as part of a holistic mobility plan, to allow Ms Kuzio-Barnes to access environments and terrain which other mobility aids were unable to accommodate.[62]
3. After undertaking trials, it was recommended that a Permobil M3 powered wheelchair be provided, with the Occupational Therapist noting that due to her impairments Ms Kuzio-Barnes required a wheelchair with an 'anterior tilt' function, to accommodate her positioning needs:

Anterior tilt - relevant for hip/pelvic positioning. Svetlana's disabilities are associated with permanent changes such as increasing bone fusion to her spine, meaning functionally that her postures are unique. Svetlana's only means to remain with comfortable seating is with

an anterior tilt position. This has been noted upon various trials and other seating (in which Svetlana generally struggles with). An anterior tilt function for Svetlana supports her self-esteem and posture which is unique as per her physical disabilities.

(N.B. Svetlana is aware that the seat height adjustability/i-level feature is unable to be used during travel unless on flat surfaces).[63]

1. In support of a request for a mobility scooter to be provided to meet Ms Kuzio-Barnes' needs, the same Occupational Therapist noted:

A range of powered wheelchairs have been reviewed however one wheelchair which is able to accommodate all needs is unable to be identified, particularly given the terrains

within her home environment. She has a need for an all-terrain device in context of the outdoor surrounds of her home.[64]

1. It is to be noted that the assistive technology and the complex home modifications approved by the Agency involve significant expense. In its SFIC, the Agency provided a detailed break-down of the funding of the supports in Ms Kuzio-Barnes' SOPS. Funding for assistive technology, being the powered wheelchair and the mobility scooter, is over $62,000. Funding for home modifications, being the bathroom modifications, automated security gate, ramps, door widening work and installation of the lift at Ms Kuzio-Barnes' home, together with ancillary costs such as insurance and waste removal, exceeded $130,000.[65]

1. In her evidence at the hearing Ms Kuzio-Barnes stated:

... one of my goals is to continue living at my home and make it secure, hazard-free and wheelchair accessible. I understand that the NDIA is not supposed to provide everything that we request. But what I'm trying to say is my safety and independence and my ability to live my life with dignity and have quality of life is something the NDIA fully supports.

... the particular supports would help me with that and ... align with my goals ... and would allow me to continue living in my home safely and make it accessible with the use of mobility aids.[66]

1. In her evidence, and in various submissions filed before the hearing, Ms Kuzio-Barnes set out why she considered each of the requested supports to be reasonable and necessary.
2. In one of her written submissions Ms Kuzio-Barnes stated:

... it is reasonable and necessary for me to be able to access the entire perimeter of my house, including the essential parts of the house, such as electrical circuit box, the entire garage (it is a separate building), the water pump which supplies water for the entire house, the green house, the water tank, the BBQ for when my daughters visit, the washing machine, etc.

I will be endangering myself on a daily basis if I were to attempt those areas without an adequate 1200mm concrete path.[67]

1. Ms Kuzio-Barnes noted the limited attendance upon her by her support workers,[68] and contended that without having suitable paths on the left and right areas of her home, during the times when she is on her own, she would be confined to limited areas of her property and would not be able to access the areas noted above, including for what might be called 'emergent' reasons, such as accessing the two electrical circuit boxes if they have tripped. Ms Kuzio-Barnes gave evidence that it was not uncommon to lose power at her home, or for switches in the circuit boxes to trip, during storms. She cited the most recent occasion on which a circuit box tripped was during the cyclone that impacted South-East Queensland in early March 2025, approximately two weeks prior to the hearing.[69]
2. One such circuit box is located in the garage, and controls, among other things, the water pump to supply water to and throughout the property (which is not connected to a town water system), and the automated gate at the front driveway entrance. Ms Kuzio-Barnes stated that it was unsafe for her to travel at present upon the existing path on the left side of her house, as due to its width she would have to position her scooter with one set of wheels on the path and the other on the adjoining grass surface. Ms Kuzio-Barnes also stated that the existing back door to the garage was not wide enough to accommodate her scooter. While she could access the garage on her scooter through the larger/main garage door at the front of her house, she would not be able to do so if the power was not working (as the main garage roller door could not be operated). Ms Kuzio-Barnes also contended that she could not safely mobilise with her crutches on this side of her house, noting her falls history and that she is only capable now of using her crutches for short periods while indoors and on level surfaces.[70] In her written response to the Agency's SFIC, Ms Kuzio-Barnes stated:

I have had several falls in the past year, most recent was when I attempted to mobilise from the front door onto loose gravel using two crutches. The crutches moved forward because of moving gravel and I fell backwards hitting concrete pavers with my pelvis, sit bone and lower back really hard. I couldn't get up by myself and it was evening so I had no support worker here.[71]

1. Ms Kuzio-Barnes also noted that the main electrical circuit box for the property was located to the right side of her house, and access to this box required her to traverse an area where the surface was covered with loose gravel, making it unsafe for her to navigate on crutches and also while mobilising in her powered wheelchair or mobility scooter.[72] In this respect, Ms Kuzio-Barnes explained that due to her disability, when operating a mobility scooter or powered wheelchair she needed to be seated in an elevated position (using the 'anterior tilt' function), which caused these mobility devices to become 'top-heavy', affecting their stability, particularly when travelling on uneven surfaces.[73]
2. Ms Kuzio-Barnes also explained that if her mobility scooter was stored in the garage, for charging, she would be unable to access it without help from a support worker. She noted Ms Haberley's recommendation that the scooter should be available to Ms Kuzio-Barnes at all times and that it could be left in the patio area, if a power point was installed to permit charging, but also contended that it would be unsafe for the scooter to be stored in this area at present, as this would again require her to traverse the gravel area to the right side of her home, and as the patio door was not of sufficient width.[74]
3. In her evidence, Ms Kuzio-Barnes described the current gate located near the patio area as being of a temporary mesh construction. Some items of furniture were currently positioned with the gate in an attempt to block her sheep from breaking through this gate.[75] Ms Kuzio-Barnes submitted that as this gate is not automated she is unable to open it to access the rear area of her property, unless a support worker is with her to open the gate.[76]
4. Ms Kuzio-Barnes also noted the effect upon her physical and mental health and her quality of life through not being able to access the outside areas of her property, including to exercise and to spend time with her animals.

As stated in numerous reports, my physical and psychosocial disabilities significantly impact my ability to function at home, and my capacity to participate in daily activities. Provision of pathway would improve my daily functioning and improve my health and well-being through much needed social participation with my Social Worker, increased independence and will allow me to safely engage in daily activities with the help of my Social Worker and during the times that I am on my own.[77]

1. As such, Ms Kuzio-Barnes contended that the provision of the requested pathways met the criteria outlined in section 34(1) of the NDIS Act,[78] namely that these supports:

(d) would assist her to meet the goals in her plan; > > (e) would increase her social participation, through being able to engage in more activities on her property, and to engage more effectively with her support workers and therapists at her home.[79] > > (f) represent value for money: > > > (f) Unfortunately, there are no alternative supports with the same benefits achieved that will allow me to navigate my entire perimeter of my home with safety and independence whilst enjoying the social participation, animal therapy, carry out daily activities. I strongly believe, that I am entitled to exercise choice and control in how I spend my day and my disabilities should not prevent me from doing things I love, prevent me from essential social participation and outdoor therapies. Safely navigating the entire perimeter of my home will support me with managing my disabilities, prevent significant rapid functional decline and increase my quality of life. As stated above, it will increase my independence and will allow me to exercise choice and control.[80] > > Further, Ms Kuzio-Barnes noted:

There are significant safety risks involved in leaving me without the requested supports as it is likely to exacerbate my disabilities, extreme fatigue and cause me further decline in function which will cost the NDIS more long term.[81]

(g) would be effective and beneficial for her (for the reasons noted above);

(h) were reasonable and necessary, taking into account what her carers could provide, and noting that she received negligible informal support; and

(i) were most appropriately funded through the NDIS.

1. In its Statement of Facts, Issues and Contentions, the Agency made the following submissions about the evidence relating to Ms Kuzio-Barnes' mobility and her support needs:
   • Ms Kuzio-Barnes is capable of mobilising for short periods of 10-20 minutes, on flat to relatively flat ground using her crutches or a walker, and that her capacity to mobilise was improved by the presence of a support walker.[82]
   • Ms Kuzio-Barnes will be able to use a powered wheelchair to access the dirt and gravel areas around her home. Additionally, Ms Kuzio-Barnes will be funded in her plan for a mobility scooter, and there was no objective evidence to the effect that the terrain around Ms Kuzio-Barnes' property was beyond the capacity of the mobility scooter.[83]
   • To the extent that the ground may be boggy after heavy rain, Ms Kuzio-Barnes was in the same position as any person without a disability, who would also be at risk of a fall in attempting to traverse such ground.[84]
   • If the terrain was beyond the capacity of the mobility scooter (which was not conceded), the requested supports are still not reasonable and necessary. This is because first, all but two of the items/areas sought to be accessed by Ms Kuzio-Barnes would only be accessed by her when she has the support of another person, so the risks of concern to her would not arise. Secondly, the only items Ms Kuzio-Barnes may need to access independently are the two electrical boxes, and she could access these using a combination of her crutches and the mobility scooter.[85]
   • Turning to each of the items/areas to which Ms Kuzio-Barnes sought access through the supports in issue, the Agency contended as follows:
     1. Garage: Ms Kuzio-Barnes can access the garage using her powered wheelchair or mobility scooter, leaving her home via the front doorway and ramp and travelling on the level bitumen driveway to the garage.
     2. Water tanks and pump: These are located to the left of the house and near the side door to the garage and would not be reached by the left path. These items could be accessed by using the garage side door to minimise travel over unsealed surfaces, with Ms Kuzio-Barnes using a combination of her crutches and the wheelchair or scooter.
     3. Green house: Again this item is to the left of the house and could not be accessed by the left path. It can be accessed across level grass and it could be assumed from statements made by Ms Kuzio-Barnes that she would be accompanied by her support worker when accessing the green-house.
     4. Washing line: This is towards the back of the house. Ms Kuzio-Barnes is funded for support with all laundry tasks and there is therefore no need for her to access this item as she cannot undertake any tasks relating to it.
     5. Outdoor table, BBQ and exercise area: This area can be accessed across level grass and noting that Ms Kuzio-Barnes has indicated she wishes to enjoy this area with family and friends, as with accessing the green-house, she would have the support of others during her use of this area.
     6. Pool: this is to the right side of the house and can be accessed by the wheelchair or scooter, via the ramp at the back of the house.
     7. Electrical boxes: The main box is on the right side of the house over the area of the gravel path. It can be accessed by the scooter and if that is not so, Ms Kuzio-Barnes could travel at most 10 metres on the gravel path. The second box is located near the garage side door and can be accessed as per access to the water tanks.[86]
2. The Agency contended that as the doors at the front and rear of the house were of double width, Ms Kuzio-Barnes could traverse the house to move her scooter from one area to another. Further, that neither pathway would assist Ms Kuzio-Barnes to gain any additional enjoyment from her property.[87]
3. For the proposed patio modifications, there was no evidence as to why the existing doors are inadequate or would prevent Ms Kuzio-Barnes from using her assistive technology; or why she could not rise briefly to open/close the gate; or why a separate charging point was required.[88]
4. Finally, as to the garage door widening support, there was no evidence to enable the Tribunal to conclude that widening was necessary to enable the participant to gain access to the garage or any other area.[89]
5. Turning to the requirements of section 34(1) of the NDIS Act, the Agency submitted:

(aa) It was accepted that Ms Kuzio-Barnes' mobility restrictions arise from her physical and psychosocial impairments, which meet the disability requirements in section 24 of the NDIs Act. However, for the above reasons none of the supports in issue will assist Ms Kuzio-Barnes to gain any additional enjoyment or benefit from her property and hence the requested supports do not address 'needs' of Ms Kuzio-Barnes arising from those impairments,

(a) As none of the supports in issue will assist Ms Kuzio-Barnes to gain any additional enjoyment or benefit from her property, they will not assist her to pursue her goals, objectives and aspirations.

(b) Each of the home modifications would be used by Ms Kuzio-Barnes in her home, and thus would not facilitate her economic or community participation. While accepting that Ms Kuzio-Barnes' social participation does encompass her engagement in some activities with her support workers while they attend her home, Ms Kuzio-Barnes cannot engage in some of the activities the support workers undertake (such as hanging out the washing), and this inability does not reduce her social participation:

To the extent that her support workers are providing social engagement, that is most appropriately provided during activities in which the Participant can participate without restriction.

Further, as set out above, the Agency contends that the Right Path, Left Path, Patio Modifications and Garage Door Widening will not assist the Participant to engage in any activities with her support workers other than activities which are already accessible to her via other means.

(c) Rule 3.1(a) of the Support Rules requires the Tribunal to assess whether there are comparable supports which would achieve the same outcome at a substantially lower cost. The existing funded supports achieve the same outcome at no additional cost. Provision of the requested supports does not provide value for money.

(d) As none of the supports in issue will assist Ms Kuzio-Barnes to gain any additional enjoyment or benefit from her property, provision of them will not be effective and beneficial for Ms Kuzio-Barnes.

(e) Where the property is prone to becoming boggy or otherwise is of uneven terrain, any person would require paving to ensure safe access. To the extent that the requested supports are required due to the uneven nature of the terrain, providing safe access is a day-to-day living cost (Rule 5.1(d) of the Support Rules), arising for all homeowners, and it is reasonable for Ms Kuzio-Barnes as the homeowner to provide those items.

(f) To the extent that the requested supports are required due to the terrain and weather patterns, they are not 'NDIS supports', as they are day-to-day household living costs.[90] Otherwise it was accepted that the requested supports are NDIS supports, being encompassed in 'home modifications design and construction'.[91]

Additionally, pursuant to section 7 of the Miscellaneous Transitional Rules, the Agency did not contend that the requested supports are more appropriately funded by any general system of service delivery or support service.

1. As noted, Ms Haberley is an occupational therapist who works and has extensive experience in the area of complex home modifications. She provided two reports which were in evidence, being an NDIS Complex Home Modification form and a separate 'Report to Builders',[92] and also gave evidence at the hearing.
2. In answering questions asked of her by Ms Kuzio-Barnes, Ms Haberley stated the following in her evidence:
   • During her visit to Ms Kuzio-Barnes' home,[93] she observed Ms Kuzio-Barnes 'mobilising with great difficulty using some forearm crutches within her home environment.'
   • In mobilising outside the home, Ms Kuzio-Barnes transferred from her crutches to a hired mobility scooter. Ms Haberley observed that that while the paved areas around the home were 'reasonably flat' there were quite a few uneven surfaces, with the 'main difficulty' arising in relation to the existing pathway at the left side of the house which was only two pavers wide (Ms Haberley thought 800 millimetres in width), and 'the mobility scooter tipped off the edge into the gravel on multiple occasions and Svetlana was extremely anxious that the scooter was going to tip over the gravel area.' Ms Haberley felt that Ms Kuzio-Barnes 'was at very high risk of tipping the mobility scooter and losing traction.'
   • There were some areas that were gravel, and 'extremely uneven.' Ms Haberley observed the mobility scooter to lose traction in the gravel. She described the gravel area as moving 'under my feet' (when she walked over it).
   • Once the gravel and pathway areas had been navigated and the scooter reached the grassed areas of the property, which had 'more traction', Ms Kuzio-Barnes was able to manage 'quite well.' These areas were not sloped, but did have some uneven surfaces, such as caused by rain gutters and trees.
   • A different model of mobility scooter would be more suitable for these 'off-road' areas, although it would be much more expensive than a 'standard' scooter, and a continuous concrete pathway of 1200 millimetres width around the property would be better 'value for money'. The pathway should have a 'safe mowable verge', meaning no dips or falls or edges that could be a tip hazard. This would enable Ms Kuzio-Barnes to access all areas of her property and to do so independently, if that was necessary. However, Ms Haberley stated that she would not recommend Ms Kuzio-Barnes mobilising on the grass areas in her scooter without supervision, because 'there is that increased risk when there's uneven surfaces of tipping,' but if there was an emergency it would be reasonable to travel over the grass.
   • As to whether Ms Kuzio-Barnes could mobilise in these areas using crutches:

I would definitely not be saying that you can mobilise using your walking sticks the way it is at the moment.

• She observed Ms Kuzio-Barnes attempting to open the gate on the right-hand side of the home, which was difficult.
• She had not addressed the widening of the door to the garage in her assessment form, as at that time it was not known that access to the garage was needed; for example, to access the power circuit box which, among other things, operates the automated front gate. The existing door is only 780 millimetres wide, with Australian standards requiring at least a minimum width of 850 millimetres for wheelchair access. Ms Haberley also noted that if consideration was to be given to other options, such as moving this circuit box to another location, she would seek the expertise of a builder or electrician.

1. While giving her evidence Ms Haberley was advised that since the time of completing her assessment, plans to install the lift had changed, in that it was now envisaged that the lift would be internally located, rather than externally, as originally intended. Ms Haberley maintained her view that despite this change, a continuous 1200-millimetre concrete pathway around the home, with a safe mowable verge of grass to the edge, would ensure that Ms Kuzio-Barnes had safe access to her property.

1. Mr O'Dowd was engaged by the Agency to undertake an independent home modification assessment of Ms Kuzio-Barnes, and to prepare a report, which was to include answering specific questions developed by the Agency. Mr O'Dowd undertook this assessment on 29 September 2023, and his report, dated 1 November 2023, was in evidence as part of the Hearing Bundle, together with the letter of instruction prepared by the Agency's legal representatives.[94] Mr O'Dowd gave evidence at the hearing on 24 March 2025.
2. During questioning by Ms Kuzio-Barnes, Mr O'Dowd acknowledged that significant time (approximately one and a half years) had elapsed since he saw Ms Kuzio-Barnes for the purposes of his assessment. He agreed that it was likely that Ms Kuzio-Barnes' physical condition would deteriorate to a point 'where using crutches will no longer be safe.' Understandably, he could not put a timeframe on when that might happen.
3. Mr O'Dowd also gave evidence that if Ms Kuzio-Barnes was mobilising by use of her crutches on a surface such as the gravel areas at her home, 'that supervision would be appropriate in case of slips and falls, which were within the realm of possibility, based on [Ms Kuzio-Barnes'] status at the time [of his assessment].'
4. Ms Kuzio-Barnes took Mr O'Dowd to the view expressed by her physiotherapist, Ms Tassoti, in her letter of 4 December 2024,[95] to the effect that Ms Kuzio-Barnes should not be mobilising on her crutches on uneven, moving ground and gravel. He commented 'I would not be surprised to hear that there has been a reduction in terms of your capacity since I've seen you, given the time that has passed.' Further, Mr O'Dowd noted that as he had not seen Ms Kuzio-Barnes since his assessment in 2023 he could not definitively express a view but based on the conditions Ms Kuzio-Barnes had at the time of his assessment, he considered Ms Tassoti's view to be 'a likely appropriate safeguard at this time.'
5. Mr O'Dowd also expanded upon the observations contained in his report about Ms Kuzio-Barnes' property, noting:
   • 'I believe that the property is relatively flat, but like most suburban blocks, there is very minor undulation and unevenness in the grass and dirt, which occurs over time.'
   • 'To the best of my understanding, there is not a single aspect of the home that is grossly out of the norm for a home of its age, size and location ... so I would not go so far as to say that the residence was of inappropriate design at construction, but I would not consider the home to be an ideal design for inclusive living. Things such as level access internally and externally, having a solid surface completely around the home, those are things that would improve access and safety.'
   • 'Outside of a form of lift to get between the first and second stories of the home, I would not consider there to be a need for a disability specific form of intervention using that term to mean something that would only be required for someone ... for a medical intervention. I would consider if there was to be any construction works to the property, it would likely form, fall in line with what some people may consider a standard renovation such as different paths and things like that.

If there were to be larger scale modifications to the home, it would likely increase the ability to use a singular form of mobilised transport such as a wheelchair. If there was a path around all aspects of the home, you could navigate around the circumference of the home. If there was a form of threshold ramp at the front so that the wheelchair could wheel in and out, that would improve access, so you don't have to get out of one device and into another when entering or exiting the home.[96]

1. As Counsel for the Agency noted in his closing submissions,[97] the evidence before the Tribunal in this review concerned numerous issues and also covered a significant period of time, during which a new NDIS plan for Ms Kuzio-Barnes was developed. It is fair to note that the evidentiary picture regarding some issues, such as Ms Kuzio-Barnes' impairments and their impact on her mobility, has evolved over this period, as did the Agency's responses. For example, by the time of the hearing the Agency had agreed to fund supports in the nature of assistive technology (a powered wheelchair and a motorised scooter) and to undertake a range of other home modifications. Additionally, the weight of the relevance evidence reflects that Ms Kuzio-Barnes' functional capacity for mobilising has declined further over the period of this review.
2. These developments need to be borne in mind in assessing the evidence, some of which is now comparatively quite dated in its nature, that has been provided in relation to each of the four supports in issue.

1. These Guidelines[98] provide the following explanation of what is meant by 'home modifications':

Home modifications are custom-built changes to your home to help you access and use areas of your home.

Home modifications can be minor changes like widening a doorway. Or they can be more complex, like changes involving a few areas in your home. For example, you might need to combine your bathroom and toilet to give you more room to use a hoist or shower chair.

• have safety concerns or difficulty moving around your home
• have trouble with personal care, like using your shower
• can't use the rooms you need to use in your home
• have difficulty pursuing your goals in your home because of your disability
• need changes to your home so your carers can support you safely.

1. In a recent Tribunal decision, General Member Williams summarised the key aspects of these Guidelines, relevant to the funding of a home modification support.[99] The Tribunal gratefully adopts that summary here:
   1. It must relate to the participant's disability, which contemplates how the home modification will help them to do things they find difficult due to their disability, or whether the home modification will result in the participant needing less help.
   2. It needs to help the participant pursue their goals (which considers how their disability prevents them from doing so) and participate more in social or work life, such as by enabling them to do things more independently.
   3. It should do what the participant needs it to do or make things better for them by helping them to do more things themselves, which will demonstrate that it is effective and beneficial for the participant.
   4. It must represent value for money, compared not only with the benefits the participant will derive from the home modification, but also with other supports that would achieve the same outcome. Considerations include:
      1. the age and condition of the home, if there are structural problems that wouldn't support the modification, or if the property needs a lot of work to make it accessible;
      2. how the home modification compares to the cost of moving to a more accessible home;
      3. if the home modification will help reduce the risk of fatigue or injury to the participant or to a carer.
2. In addressing the value for money consideration, the Tribunal here additionally notes that the Guideline also emphasises the need to think about whether other options, such as assistive technology, could achieve the same outcome at a much lower cost; whether the participant's disability needs may change over time and if the home modification will help them in the long term; how long the participant plans on staying in their home, and if the home modification is good value for this length of time; and if the home modification will reduce the participant's need for other NDIS supports
3. Further, the Guidelines explain that the proposed home modification must be legal (that is, compliant with relevant laws and standards) and safe for the participant and others. Further, that the home modification must be an 'NDIS support'.

The Tribunal also notes that the NDIS Home Modifications - Guidance for Builders and Designers policy[100] contains the following section:

To enable participants' safe and continuous access to their home.

If it's supported by clinical evidence, we can fund an external continuous accessible path of travel to enable the participant to safely enter and exit their home. The NDIS funding criteria allow for a pedestrian path of travel from the front boundary or the car parking area, to one accessible entrance of the dwelling.

5.1.1 A new path of travel is recommended to be:

• made from reinforced concrete (not pattern paving, exposed aggregate, polished, stencilled or coloured concrete), or other suitable cost-effective products
• a minimum width of 1000mm, or wider if clinical evidence shows the participant needs a wider wheelchair or mobility aid
• a slip resistant surface, such as concrete broom finish or wooden trowel finish.

• any steps, obstructions, or hazards along the path of travel should be removed
• in some cases, the existing path may be widened if it meets the NDIS funding criteria.

1. Much of the evidence provided during the review, together with the contentions of the parties, relate to one or more or even in some instances all four of the supports in issue. However, there are some different features in the evidence, the contentions and the considerations that apply to the different supports, and accordingly the Tribunal will deal with them as follows.

1. It is appropriate to deal with these two requested supports together. Essentially, both are in the nature of what Counsel for the Agency termed 'exterior perimeter' pathways, and concern Ms Kuzio-Barnes being able to safely access the external areas of her home and property.
2. The evidence reflects that at the present time there is a narrow path, two concrete pavers wide, that runs along the left wall of the house to the back of the house. Ms Haberley estimated the current paved pathway to be 800 millimetres wide; she also gave evidence that the safe width for a pathway, when a mobility device was being used, was 1 to 1.2 metres. To the right of the house, the existing pathway area consists of a wide area of loose gravel. Ms Kuzio-Barnes seeks that the Agency funds the construction of a concrete path in each of these areas, as per the details contained in the revised builder's quote dated 23 October 2024.[101]
3. Having regard to the evidence about Ms Kuzio-Barnes' physical impairments and her functional capacity for mobility, the Tribunal accepts that she is not safely able to mobilise in either of these areas at present through using assistive technology such as her crutches, due to the risk of falls and injury. This finding applies to any distance of such travel in these areas; that is, the Agency's contentions that Ms Kuzio-Barnes could access some of the items on her property by mobilising on her crutches over loose gravel for a short distance (for example, at most 10 metres) are not accepted as that would, in the Tribunal's view, still expose Ms Kuzio-Barnes to appreciable risks of falls and likely harm. The evidence of Ms Haberley and Ms Tassoti underlines the risks to Ms Kuzio-Barnes' safety in attempting to mobilise in this manner on these surfaces. Mr O'Dowd acknowledged that with the passage of time since his assessment, and with the deteriorating nature of Ms Kuzio-Barnes' functional capacity for mobilising, such a conclusion was an 'appropriate safeguard'.[102]
4. However, in assessing the requested supports, in the context of Ms Kuzio-Barnes' functional capacity to mobilise, it is necessary to consider the assistive technology that will be funded by the Agency, being the powered wheelchair and the mobility scooter. Will either of these devices support Ms Kuzio-Barnes to safely access the areas where the proposed pathways are located, and in turn access the requested items and adjoining areas of her property, as she wishes, without the need for either or both of the requested concrete pathways to be constructed?
5. The two devices funded by the Agency in Ms Kuzio-Barnes' current plan are a Pride Pathrider 140XL mobility scooter and a Permobil M3 powered wheelchair.
6. Initially Ms Thorpe, occupational therapist, assessed in November 2022 that a Quantum Edge 6 powered wheelchair would be suitable for Ms Kuzio-Barnes.[103] Mr O'Dowd agreed that this item should be supplied and considered it to be appropriate 'when considering the physical environment around Ms Kuzio-Barnes' home (i.e. dirt and gravel areas). I consider that this device would be able to appropriately navigate these areas ... '[104]
7. A further Assistive Technology assessment for a powered wheelchair completed by Ms Thorpe in February 2024 outlined the results of trials and consideration of various chairs.[105] These included the Quantum Edge model that was originally recommended, with Ms Thorpe noting:

The wheelchair was unable to accommodate functional sitting tolerances due to the anterior tilt not being able to exceed 5 degrees as per the wheelchair design. Svetlana has also noted that a larger degree of anterior tilt would enable her functionality such as an increased ability to experience ease of sit-stand transfers and grasping of items (forward reach).[106]

1. As noted already, Ms Thorpe recommended a Permobil model wheelchair:

As per discussion and review of needs, it has specifically been identified that Svetlana has an essential need for the anterior tilt function to support pelvic positioning - this matter is of high relevance and it is noted that despite an array of alternative cushions and wheelchairs having been trialled, the recommended Permobil wheelchair (M3 suitable though M5 of preference due to higher general functionality) is the only wheelchair which is able to address needs. It is noted furthermore that there are currently minimal wheelchairs on the market that are able to accommodate more than 5 degrees of anterior tilt which Svetlana requires.[107]

1. Ms Thorpe's assessment notes that this powered wheelchair would be suitable for Ms Kuzio-Barnes to use indoors at her home, and in the community (for example, in walking her dogs and visiting a former work colleague who lived nearby), but not in other 'outdoor' environments. The assessment also details how Ms Thorpe evaluated other options, including an option that was 'Use of a powered wheelchair which is multi-functional in design (and able to be used in an indoor and outdoor environment).' Ms Thorpe concluded that this option was not a feasible one:

A specific aid able to address the internal and external environments in one device, as required for Svetlana, has been unable to be identified. Where a wheelchair could be identified, this would not be able to be used in Svetlana's outdoor environment due to terrain limitations.[108]

(N.B. Alternative consideration of concrete footpath facilitation has occurred and been discussed with Svetlana, however has been eliminated due to the large size of her external property and her aims to partake in a range of tasks outdoors which do not align to concrete path facilitation being cost effective. A CHM[109] has elaborated on this matter).[110]

1. Given the limitations as to the environments in which the powered wheelchair could be used, Ms Thorpe made the recommendation for a powered mobility scooter, to accompany the powered wheelchair.
2. Ms Kuzio-Barnes also provided evidence from a consultant (Ms Sue Mills) who was engaged in the wheelchair trials. Ms Mills advised, regarding the potential outdoor use of the Permobil powered wheelchair, that:

Whilst the Permobil M5 performed beautifully for Svetlana from a seating point of view, and getting around the inside of her home, it was not a practical chair for outdoor use on her property. In leading up to the trial it had rained so the ground was quite moist. This was the best time to do a trial so that we could see how it would handle this. Unfortunately it did not perform well at all. The ground was boggy in sections and the chair actually got stuck in some gravel/rocks not far from the front door.

Also, due to the desired seating position that Svetlana requires, this would not be deemed to be safe to travel around the property in this position.[111]

1. Ms Mills also noted the instructions contained in the manual for this wheelchair, which advised that operating the seat tilt function of the wheelchair changed its centre of gravity and increased its risk of tipping over. Users were warned to travel at low speed and on level ground - 'not on hills, slopes, ramps and other inclines.'[112] While those extracts were from a manual for the Permobil M5 wheelchair, the manual for the M3 version was in evidence and the Tribunal notes that it contains similar guidance about the tilt function changing the chair's centre of gravity and decreasing its stability.[113]
2. On the basis of this evidence, the Tribunal is satisfied that the powered wheelchair that is to be provided in Ms Kuzio-Barnes' plan will not enable her to travel safely on her property outside her home at present, particularly in the areas where the two existing pathways, to the left and right of the house, are located.
3. Turning to the powered mobility scooter that is also to be provided, the evidence of Ms Haberley, as noted above, was that Ms Kuzio-Barnes was not able to effectively and/or safely mobilise using a hired scooter to traverse either of the existing pathway areas. In particular, Ms Haberley's evidence was that there was a 'high risk' of the scooter tipping while travelling on the existing paved path area to the left of the house.
4. The scooter used by Ms Kuzio-Barnes at the time of Ms Haberley's observations was a hired one. However, Ms Kuzio-Barnes has drawn attention to the contents of the owner's manual for the model of scooter that is to be funded in her plan - a Pride Pathrider 140XL. In particular, Ms Kuzio-Barnes has pointed[114] to the following guidance contained in the manual:[115]

Excessively high cornering speeds can create the possibility of tipping. Factors which affect the possibility of tipping include, but are not limited to, cornering speed, steering angle (how sharply you are turning), uneven road surfaces, inclined road surfaces, riding from an area of low traction to an area of high traction (such as passing from a grassy area to a paved area - especially at high speed while turning), and abrupt directional changes. High cornering speeds are not recommended. If you feel that you may tip over in a corner, reduce your speed and steering angle (i.e., lessen the sharpness of the turn) to prevent your scooter from tipping.

Your scooter is designed to provide optimum stability under normal driving conditions - dry, level surfaces composed of concrete, blacktop, or asphalt. However, Pride recognises that there will be times when you will encounter other surface types. For this reason, your scooter is designed to perform admirably on packed soil, grass, and gravel. Feel free to use your scooter safely on lawns and in park areas.

• Avoid driving on uneven terrain and/or soft surfaces.
• Avoid tall grass that can become tangled in the running gear.
• Avoid loosely packed gravel and sand.
• Do not use your scooter in fresh or salt water.
• Do not use your scooter at the edge of a stream, lake, or ocean
• If you feel unsure about a driving surface, avoid that surface. [116]

1. In her response to the Agency's SFIC, Ms Kuzio-Barnes suggested that there was a slope of 20 degrees from the existing paved left pathway to the adjoining grass.[117] The Agency noted that there was no evidence or any objective measurement of this difference in the levels.[118] Based on the evidence provided by the photographs in evidence in the various reports already noted, and the property descriptions provided by Ms Haberley and Mr O'Dowd, the Tribunal considers that Ms Kuzio-Barnes' estimate of this slope would appear to be over-stated. Nevertheless, it remains that there is a real issue as to the safety of Ms Kuzio-Barnes attempting to traverse this area in its present state by using the recommended mobility scooter, based on Ms Haberley's observations about the use of the hired mobility scooter and the risks involved for Ms Kuzio-Barnes, and the limitations recommended in the owner's manual.
2. Accordingly, the Tribunal finds that neither the powered wheelchair nor the mobility scooter would provide Ms Kuzio-Barnes with the capacity to safely access and negotiate the existing left and right pathway areas of her property, in terms of the capabilities of these items of assistive technology and the appreciable risks to Ms Kuzio-Barnes of operating either item in those areas.
3. The Agency contended that even if the terrain around Ms Kuzio-Barnes' home was beyond the capacity of the scooter, the requested pathway supports were still not reasonable and necessary. Two bases were advanced in support of this contention.
4. First, it was submitted that all but two of the items or areas that Ms Kuzio-Barnes wishes to access would only be accessed by her with the support of another person, during which time the risks which she is concerned about would not arise. The two areas so identified were the two electrical boxes. Secondly, the two electrical boxes could be accessed by Ms Kuzio-Barnes using a combination of her scooter and crutches.
5. As already explained, the Tribunal is satisfied that Ms Kuzio-Barnes is no longer able to safely mobilise on these surfaces while using her crutches, even for short distances, to access these items,
6. Returning to the first contention, the evidence of Ms Kuzio-Barnes demonstrates why it is important for her to be able to access the two electrical boxes, in order to restore power in the event of a power outage or circuit trip, given that the boxes control the circuits for important items such as power throughout her house (via the right circuit box), and the automated gate at the driveway entrance to the property, the garage roller door and the water supply to the house (via the left circuit box). The need to do this may arise at any time; that is, including times when there is no support worker or another person present with Ms Kuzio-Barnes.
7. Beyond accessing the circuit boxes, Ms Kuzio-Barnes has given evidence about why she wishes to access other areas and items on her property. The Tribunal notes Ms Haberley's evidence about how Ms Kuzio-Barnes was able to access the grassed areas of her property 'quite well' on her scooter, and that the capacity to do this would be enhanced by ensuring there was a suitable verge between the pathways and adjoining grass areas. However, added to these observations was the qualification contained in Ms Haberley's recommendation that save for emergency purposes, Ms Kuzio-Barnes should not access these grassed areas on her scooter unless another person was present, due to the risks involved.
8. That qualification does not necessarily dictate a conclusion that the requested pathways/supports are not reasonable and necessary. Ms Haberley's evidence reflects the risks arising for Ms Kuzio-Barnes in attempting to mobilise on either of the existing pathway areas on her scooter. The Tribunal notes that these risks are not necessarily weather dependent; while the evidence reflects that heavy rainfall may exacerbate the risks of travelling on the gravel or grass areas, through causing boggy conditions, risk remains outside of those conditions.
9. Furthermore, the Tribunal does not accept that the presence of another person will in itself eliminate the risks that have been identified as arising for Ms Kuzio-Barnes in attempting to access either area by using her mobility scooter. The presence of another person may help in providing supervision and guidance such as warnings to Ms Kuzio-Barnes if risks arise. However, the mere presence of another person does not eliminate the risks observed by Ms Haberley in using the mobility scooter in these areas, in their present condition.
10. Construction of the requested pathways would, in the Tribunal's view, enhance the safety of Ms Kuzio-Barnes in using her mobility scooter to travel across either area, either for the purpose of accessing the circuit boxes, or to travel to other parts of her property, whether in the company of another person or not and whether the purpose of that access is emergent in nature or more related to Ms Kuzio-Barnes' enjoyment of her property.
11. Neither path, if constructed, would provide Ms Kuzio-Barnes with safe access to all the areas of her property that she wishes to reach, in the sense of being able to drive her mobility scooter entirely along a concreted pathway to reach every such area. However, the two pathways would enable Ms Kuzio-Barnes to access the two circuit boxes with enhanced safety and would significantly lessen the risks observed by Ms Haberley in Ms Kuzio-Barnes attempting to travel over the existing pathway areas using any form of the assistive technology available to her, in order to access other areas and features of her property.
12. As such, the Tribunal is satisfied that this access would assist Ms Kuzio-Barnes to gain additional enjoyment and benefit from her property.
13. Turning to the specific requirements of section 34 of the NDIS Act, the Agency accepts that Ms Kuzio-Barnes has disability that is attributable (among other causes) to physical impairments in the nature of mobility restrictions, fatigue and pain, which meets the disability criteria for access to the NDIS per section 24 of the NDIS Act.[119] As explained, the Tribunal finds that construction of the requested pathways/supports will facilitate Ms Kuzio-Barnes' safe access to these and the adjoining areas of her property, providing benefit and enjoyment to her. Accordingly, the requested supports are necessary to address needs of Ms Kuzio-Barnes arising from impairments in relation to which she meets the disability requirements in the NDIS Act, pursuant to section 34(1)(aa).
14. The Tribunal finds the requested supports will assist Ms Kuzio-Barnes to pursue her goals, including those of increasing her independence and continuing to live in her home with safety - section 34(1)(a) is met.
15. The Agency contends that as the requested supports would be used by Ms Kuzio-Barnes only in her home, they would not facilitate her economic participation, nor her participation in the community. The Agency did concede that Ms Kuzio-Barnes' social participation does encompass her engagement in some activities with her support workers at her home, although it was contended that could most appropriately happen during activities in which Ms Kuzio-Barnes could participate without restriction.
16. The Tribunal is mindful of the evidence before it about Ms Kuzio-Barnes' psychosocial impairments and their significant impact upon her life. Understandably, she does not have what might be termed an extensive range of social contacts and friendships. In his report Mr O'Dowd addressed the difficulties that arise for Ms Kuzio-Barnes in attempting to access the community on her own, as a result of both her psychological/psychosocial and physical restrictions; he considered that Ms Kuzio-Barnes is unable to independently enter the community at present due to her psychological symptoms including panic attacks and agoraphobia ... '.[120] Ms Kuzio-Barnes also noted that her 'PTSD and panic attacks with agoraphobia' prevent her from enjoying most daily activities outside her home.[121]
17. Construction of the requested pathways will facilitate Ms Kuzio-Barnes' capacity to engage in activities with her social workers at her home, in that while in the company of her support workers she will be able to access areas of her property outside of her house with more safety to, for example, engage with and attend to her animals, or to perform exercises recommended by her physiotherapist to assist in managing her impairments. Ms Kuzio-Barnes also gave evidence about engaging with her daughters and visitors at her property, including in the areas beyond the pathways for barbecues. Such engagement goes beyond social interaction with her support workers. While she cannot work at the present time due to her impairments, Ms Kuzio-Barnes gave evidence about a desire to return to undertaking some volunteering work with youth, in the future,[122] and a stated goal in her plan is to retrain and develop her capacity to return to volunteering or work.[123]
18. The Tribunal finds that these supports will assist Ms Kuzio-Barnes to undertake such activities, including activities which will maintain or improve her independence, which will facilitate Ms Kuzio-Barnes' social participation - section 34(1)(b) is met.
19. In considering whether the requested supports provide value for money, the agency noted Rule 3.1 of the Support Rules, and particularly the requirement in Rule 3.1(a) to consider whether there are comparable supports which would achieve the same outcome at substantially lower cost. It was contended that the funded supports achieve the same outcome at no additional cost.
20. The Tribunal is not persuaded to accept this contention. For the reasons noted above, the assistive technology supports which are to be funded by the Agency, being the powered wheelchair and the mobility scooter, will not achieve the same outcome for Ms Kuzio-Barnes as the requested supports, in terms of the safe access to and enjoyment of the relevant areas of her property.
21. It was not contended that the proposed cost of the pathways was not reasonable - the proposed costs were based on a builder's quotation,[124] and followed revision of an initial request for and consideration of a more extensive perimeter pathway around a larger area of the home.
22. In considering whether the requested supports represent value for money, the Agency's Home Modifications Guidelines have been noted above. The Tribunal notes Ms Kuzio-Barnes' goal to remain living in her home for some years, and possibly living there with her daughter and her family in the future. The Tribunal also notes the Agency's agreement to fund other supports which are in the nature of complex home modifications, being a home lift installation and funding for door widenings, bathroom modifications, and ramp access at the front and rear entrances of the home. The Agency is incurring significant expense in funding these supports in order for Ms Kuzio-Barnes to remain in her home, rather than move to other premises which might, in the language of that Guideline, be considered more accessible. These supports will be of long-term benefit to Ms Kuzio-Barnes and which will facilitate her enjoyment of, and the benefits she obtains, from her property.
23. In looking at the cost of alternative supports, Ms Haberley gave evidence that a more robust mobility scooter (compared to the model recommended for Ms Kuzio-Barnes), that might be capable of traversing the gravel pathway areas, would cost something in the vicinity of $50,000 to $60,000, which is significantly more than the combined cost of the recommended scooter and the requested pathways. The Tribunal also notes the quoted cost of the full perimeter pathway around the house, as originally requested by Ms Kuzio-Barnes, which was quoted to be a cost of over $39,000.[125] As stated, the Agency has already made decisions about undertaking other complex home modifications in order to make Ms Kuzio-Barnes' home more accessible for her, rather than funding the alternative option of moving her to another residence that might be more accessible.
24. In closing submissions, Counsel for the Agency submitted that in considering the requirement of value for money (and also the requirements in section 34(1)(b) and (d) of the NDIS Act) the Tribunal should have regard to the tension between Ms Kuzio-Barnes' desire to use the requested pathways to gain access to the grassed areas of her property, and Ms Haberley's evidence that doing so in the absence of another person was not advisable.
25. As previously noted, the Tribunal has found that construction of the requested pathways would enhance the safety of Ms Kuzio-Barnes in using her mobility scooter to travel across either of those areas, either for the purpose of accessing the circuit boxes, or to travel to other parts of her property, whether in the company of another person or not and whether the purpose of that access is emergent in nature or more related to Ms Kuzio-Barnes' enjoyment of her property. Ms Haberley's recommendation about accessing grassed areas of the property while accompanied will, if observed, limit Ms Kuzio-Barnes' access to the grassed areas and will certainly curtail her opportunities for such access, in terms of what she envisioned when making her written submissions during the review and when giving her evidence at the hearing. However, opportunities for such access will still exist when Ms Kuzio-Barnes is accompanied by her carers or others, and the Tribunal is not persuaded that the limitations which will arise from observing Ms Haberley's recommendation are of an extent that supports a view that the costs of the supports are not reasonable, relative to the benefits achieved.
26. In conclusion on this consideration, the Tribunal finds that the costs of the requested pathways are reasonable, relative to the benefits achieved for Ms Kuzio-Barnes and the cost of alternative supports. The supports represent value for money - section 34(1)(c) is met.
27. As noted, the requested supports will assist Ms Kuzio-Barnes to pursue the goals and aspirations outlined in her NDIS plan and will improve her independence and support her social participation. Mr O'Dowd opined, in the context of recommending the installation of a lift at Ms Kuzio-Barnes' home, that:

Having improved access to the entirety of her home will likely be extremely positive

for her psychological wellbeing, as well as allowing her to engage in activities that she

has avoided (i.e. piano playing) due to an inability to access the appropriate areas of

1. Consistent with those observations by Mr O'Dowd, Ms Kuzio-Barnes has provided evidence about her own experience in living at her property and how the requested supports will help her to enjoy and benefit from continuing to live at that property in the future, including through the provision of increased access to external areas of the property and enhanced safety in undertaking such access. The Tribunal is satisfied that the provision of the requested supports will be effective and beneficial for Ms Kuzio-Barnes - section 34(1)(d) is met.
2. Section 34(1)(e) and the Support Rules require satisfaction that the funding or provision of the requested supports takes account of what is reasonable to expect families, carers, informal networks and the community to provide.
3. The evidence before the Tribunal establishes that Ms Kuzio-Barnes lives alone and receives very little by way of informal support from friends or family members. The support she receives is almost entirely provided by her funded NDIS supports. These include support workers attending at Ms Kuzio-Barnes' home; however, she does not receive 24-hour support and there are periods of each day and night where Ms Kuzio-Barnes is alone. Her support workers could, if present, access all areas of the property for emergency reasons such as restoring power after a circuit trips. They can also accompany Ms Kuzio-Barnes while she accesses the external areas of her property which are beyond the two requested pathways, as was recommended by Ms Haberley. However, as explained, absent construction of the pathways the mere presence of another person does not in itself ensure that Ms Kuzio-Barnes could safely access and travel on the existing pathways in her mobility scooter without appreciable risk. As such, the Tribunal is satisfied pursuant to section 34(1)(e) that funding or provision of the requested supports would appropriately take into account the support that can be provided by Ms Kuzio-Barnes' carers and the infrequent informal support that might be provided to Ms Kuzio-Barnes by her daughters and/or friends.
4. The Agency contended that to the extent that these supports are required because of the uneven nature of the terrain surrounding Ms Kuzio-Barnes' house, or because of weather patterns (for example, rainfall causing the ground to become boggy), it is reasonable for Ms Kuzio-Barnes to provide them as the cost of those supports is a day-to-day living cost, having regard to section 34(1)(e) and Rule 5.1(d) of the Support Rules. This was contended to be the case because 'any person would require paving for safe access;' that is, these costs would arise for any homeowner.[126]
5. Rule 5.1(d) has been set out above. To recap, it stipulates that a support will not be provided or funded by the NDIS if it relates to day-to-day living costs that are not attributable to a participant's disability support needs. The Rule itself provides examples of such day-to-day living costs, being 'rent, groceries and utility fees.' Rule 5.2 excludes additional living costs which are incurred by a participant solely and directly as a result of their disability support needs, or which are costs ancillary to another support in a participant's plan, and which the participant would not otherwise incur.
6. The Agency's contentions regarding rule 5.1(d) are rejected by the Tribunal.
7. The construction of Rule 5.1(d) has recently been considered by the Full Court of the Federal Court in the case of National Disability Insurance Agency v Warwick [2025] FCAFC 100. In that matter the primary judge had determined that the costs incurred by an applicant in relocating from one home to another (such as moving costs, conveyancing fees and stamp duty)[127] were not 'day-to-day living costs', in that they were not everyday costs which were incurred in the course of living for the purpose of living, but were rather '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.'[128]
8. The Full Court confirmed that interpretation, noting that 'day-to-day' adds an element of regularity or routine and that all of the examples given in rule 5.1(d) are paid or incurred frequently or at regular intervals:

That conspicuous feature of the examples confirms that one-off, remarkable, unforeseen, infrequent or extraordinary costs will not be excluded by the rule, even if they are costs that all or the majority of persons incur for the purposes of living.[129]

1. Further, the Tribunal is satisfied that the costs of the pathways are attributable to Ms Kuzio-Barnes' disability support needs, as reflected by the finding that these supports satisfy the requirements of section 34(1)(aa). The assertion that any homeowner would need to incur the costs of the two requested pathways to ensure safe access to the property is not accepted, given the previously cited evidence about the nature of the property and the two existing pathways. For the reasons already explained the Tribunal has found that Ms Kuzio-Barnes is unable to mobilise safely in these areas even with the use of any of the forms of assistive technology available to her, being her crutches, the powered wheelchair or a mobility scooter. Her reduced functional capacity for mobility and her reliance on such items to mobilise makes the existing pathways unsafe for her. That situation would not, in view of the evidence about the features of Ms Kuzio-Barnes' property and the existing pathways, face any person who did not have similar disability needs and who was seeking to access the external areas of the property. Care might be needed at times; for example, if the grassed areas were boggy due to rainfall, but the evidence does not, in the Tribunal's view, support a finding that the costs of the pathways would be costs any homeowner, who did not have disability, would need to meet to enjoy safe access to these areas. The requested pathways are not related to day-to-day living costs that are not attributable to Ms Kuzio-Barnes' disability support needs.
2. The Agency also submitted that to the extent that the pathways (and the other requested supports) are required due to the terrain of Ms Kuzio-Barnes property and weather patterns, the supports are not NDIS supports, but are standard costs relating to home security and maintenance, fencing, gates and building repairs and/or home repairs, improvements, standard renovations and maintenance.[130] The Agency otherwise accepted that the supports are NDIS supports, in the category of 'home modification design and construction'.
3. For the reasons above, the Tribunal does not accept the contention that the pathways are necessary due only to the terrain of the property and weather patterns. The Tribunal finds that the pathways are necessary due to Ms Kuzio-Barnes' disability support needs and that they are NDIS supports in the category of home modifications, design and construction.
4. It was not contended that under section 7 of the Miscellaneous Transitional Rules that any of the requested supports are more appropriately funded or provided through any general system of service delivery or support service. The Tribunal is satisfied that the requested pathways are most appropriately funded or provided through the NDIS, and are 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:

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

1. In conclusion, the Tribunal is satisfied that the requested pathways are reasonable and necessary supports for Ms Kuzio-Barnes, and that the requirements of section 34 of the NDIS Act and section 7 of the Miscellaneous Transitional Rules have been met for these supports. Additionally, the requested pathways comply with the Agency's Home Modifications Guideline.
2. Many of the contentions and considerations discussed above relate also to the other two supports in issue, being the garage door widening gate and the patio modifications

1. Ms Kuzio-Barnes seeks the provision or funding of a support in the form of widening an existing door at the rear of her garage. The garage stands separately to the house building. As Ms Kuzio-Barnes explained in her evidence, an important reason underlying this request is to enable her, in the context of the concrete pathway to the left of the house being constructed, to safely access the garage if the power at the property is out. As has been detailed already, there is an electrical circuit box located inside the garage which is integral for the operation of important equipment such as the automated front gate to the property and the water supply to the house.
2. As was noted by Ms Haberley in her evidence, the existing door is not of a sufficient width to meet modern accessibility standards. As Ms Kuzio-Barnes would be travelling along the pathway area on her mobility scooter, and having regard to the expectations regarding the likely continuing deterioration of Ms Kuzio-Barnes' functional capacity to mobilise, that door needs to be of a sufficient width to afford her access while using her assistive technology.
3. Otherwise the evidence establishes that Ms Kuzio-Barnes will be able to access the garage using her scooter by exiting her house through the front door, which is of double width, travelling down the entrance ramp which the Agency is providing, travelling along a sealed driveway for a short distance, and entering the garage through the main roller door. However, this means of ingress to the garage is not possible in the event of a power failure as the main garage roller door cannot be operated without power. In those circumstances, ingress via the smaller rear door would be required to access the garage and the circuit box.
4. The Tribunal is satisfied that this requested support is a reasonable and necessary one for Ms Kuzio-Barnes, meeting all of the specific requirements in section 34 and the Home Modifications Guideline, and which is an NDIS support. It is reasonable and necessary that Ms Kuzio-Barnes should have access to the garage, particularly in the event of emergent circumstances where such access is necessary to restore power to operate important features of the property such as the water supply to the house and the main access gate, through which any vehicle would enter the property, and through which Ms Kuzio-Barnes would leave the property. The importance of that main gate (and its effective operation) was addressed at some length by Mr O'Dowd in his report, where he strongly recommended its installation (which was agreed to by the Agency), commenting that:

[t]his would have broad reaching benefits to multiple areas of Ms Kuzio-Barnes' life through improving the ability of support services to engage with Ms Kuzio-Barnes, an improved feeling of safety/security within her home, and lastly in emergency situations would mean Ms Kuzio-Barnes is able to leave her property in a relatively efficient manner which is not the case presently.[131]

1. In funding other home modifications for Ms Kuzio-Barnes the Agency has agreed to fund some works to widen internal doors inside the home, and to install the lift to facilitate Ms Kuzio-Barnes having access to the upper floor of her home.
2. Widening of the garage door to ensure that it meets accessibility requirements for Ms Kuzio-Barnes to be able to access the garage while travelling on her mobility scooter:
   • Is necessary to address needs of Ms Kuzio-Barnes arising from impairments in relation to which she meets the disability requirements in the NDIS Act, pursuant to section 34(1)(aa).
   • Will assist Ms Kuzio-Barnes to pursue her goals, including those of increasing her independence and continuing to live in her home with safety - section 34(1)(a); which in turn will assist Ms Kuzio-Barnes to undertake activities so as to facilitate her social and economic participation - section 34(1)(b); and will be effective and beneficial for Ms Kuzio-Barnes - section 34(1)(d).
   • Represents value for money, relative to both the benefits achieved and the cost of alternative support - section 34(1)(c). In these considerations, the Tribunal notes the quoted cost of the support,[132] and repeats the observations made above about the long-term benefits for Ms Kuzio-Barnes, in the sense that she intends to remain living at her home for some years, and the overall context of significant works being funded by the Agency to ensure her home remains safe and accessible for her.

Further, the Tribunal notes that during Ms Haberley's evidence and in closing submissions the Agency's Counsel drew attention to the fact that Ms Haberley had not had any opportunity to evaluate alternative options regarding this support, such as moving the circuit box in the garage to a more accessible location, for example, inside Ms Kuzio-Barnes' house. Counsel submitted that the state of the evidence in this respect would present a difficulty in evaluating whether the requested support represented value for money, in that other alternatives might represent better value for money.

While those concerns are acknowledged, the Tribunal is persuaded that the requested support is reasonable and necessary for the reasons that have been noted, which go beyond the accessibility of the circuit box located inside the garage. These concerns do not support a finding that section 34(1)(c) is not met.

• Takes account of what it is reasonable to expect others to provide; for the same reasons advanced already in relation to the two pathways, the Tribunal is satisfied pursuant to section 34(1)(e) that funding or provision of the requested supports would appropriately take into account the support that can be provided by Ms Kuzio-Barnes' carers and the infrequent informal support that might be provided to Ms Kuzio-Barnes by her daughters and/or friends.
• Is an NDIS support for Ms Kuzio-Barnes, in the category of 'home modification design and construction'.
• Is not a support that is more appropriately funded or provided through any general system of service delivery or support service.

1. The Tribunal is satisfied that the requested garage door widening is a reasonable and necessary support for Ms Kuzio-Barnes, and that the requirements of section 34 of the NDIS Act, the Agency's Home Modifications Guideline and section 7 of the Miscellaneous Transitional Rules have been met for this support.

1. Ms Kuzio-Barnes seeks the installation of an automated gate in the patio area, alterations to the screen doors leading out to the patio area, and installation of a scooter charging point in the outside patio area.
2. A table contained in the Agency's SFIC suggested that the cost of the patio modifications would be funded in Ms Kuzio-Barnes' next plan, save for the automated gate. Ms Kuzio-Barnes' evidence reflected such an understanding. However, other references to these modifications in the Agency's SFIC,[133] and the approach taken at the hearing, confirmed that all of the requested patio modifications were in issue in the review.
3. Some time was spent at the hearing in exploring details about the exterior areas of Ms Kuzio-Barnes' home, and her reasons for requesting these particular modifications. It is noted that the evidence given by Ms Kuzio-Barnes[134] and Ms Haberley[135] at the hearing reflected that over time the original plan to install the lift on the outside of Ms Kuzio-Barnes' home had changed, and that the lift would now be installed internally. The siting of the lift in turn would impact on the access to the patio doors, reducing the width of the existing doorway and necessitating some reconfiguration of access through this area to the patio. Given these works and their impact the Tribunal has not further considered this specific modification, other than to observe that obviously when the lift installation works are completed the means of access that Ms Kuzio-Barnes has to the patio area through the reconfigured doorway should be accessible for her, having regard to her reliance upon assistive technology to mobilise safely.
4. Turning next to the requested modifications regarding the installation of a scooter charging point in the outside patio area, Ms Haberley reported:

Participant will store her mobility scooter in lower level flyscreened patio area. There is no external charging power point that can be utilised.[136]

1. Ms Kuzio-Barnes explained in her response to the Agency's SFIC that arising from a suggestion by Ms Haberley that the powered scooter should be available to Ms Kuzio-Barnes at all times, in case of an emergency, it was proposed that the scooter be left in the patio area, under the balcony of the house, and that a charging point be installed there so that it could be charged overnight.[137] The owners' manual for the recommended scooter reflects that it is can be charged through a standard electrical outlet, although through a direct connection (that is, not using an extension cord).[138]
2. Ms Kuzio-Barnes further explained in this submission that there was at that time no way for her to get her scooter to that area with safety, as she would have to travel over the gravel pathway to the right side of the house. With the approval for the construction of the concrete pathway in that area, this difficulty is largely removed and Ms Kuzio-Barnes will be able to more readily access areas such as the pool area of her home and her front driveway when using her scooter.
3. The Tribunal accepts that it is reasonable and necessary for Ms Kuzio-Barnes to have access to an external charging point for her mobility scooter. Due to her reduced functional capacity, assistive technology in the form of the scooter and a powered wheelchair are being provided for her. The scooter is primarily for outdoor use. Enabling the scooter to be stored and charged while outside in the patio area will mean that it will be readily accessible for Ms Kuzio-Barnes (compared to other options, for example, storing and charging the scooter in the garage). As such, the support will:
   • address a need arising from Ms Kuzio-Barnes' impairments which result in her mobility restrictions;
   • assist Ms Kuzio-Barnes to pursue her goal of continuing to live independently in her home and to undertake activities to facilitate her social participation;
   • represents value for money;
   • will be effective and beneficial for Ms Kuzio-Barnes and will assist her to enjoy and benefit from her property;
   • is an NDIS support (as the Agency agreed).[139]
4. The Tribunal is satisfied that this support is a reasonable and necessary one for Ms Kuzio-Barnes, and that the requirements of section 34 of the NDIS Act, the Agency's Home Modifications Guideline and section 7 of the Miscellaneous Transitional Rules have been met for this support.
5. The final requested modification is for the installation of an automated gate. The evidence given by Ms Kuzio-Barnes and supplemented by the photographs provided in the several reports noted earlier, established that the existing gate currently in position here is of a temporary mesh construction.[140] Indeed, it is more in the nature of a temporary barrier, as opposed to a hinged and fitted style of gate. Given how this 'gate' is constructed, it is unsurprising that Ms Kuzio-Barnes would experience difficulty in opening or closing it; indeed it is likely that any person would experience some difficulty due to the temporary nature of the gate.
6. The opening where the gate sits leads from a paved outside area into a grassed paddock toward the rear of the property, where Ms Kuzio-Barnes' sheep and chickens live. In her response to the Agency's SFIC Ms Kuzio-Barnes stated:

There is a current rural gate in place which keeps the sheep and chickens from entering the yard closer to the house. It has to stay. I need it automated so I can access the grassy area beyond it on my own, when I do not have support workers (who are with me 6 hrs/day) and/or family visiting. In particular, I want to be able to access this area in the cool of the morning, from 6am (when support workers don't start their shifts until later), and at the end of the day. It overlooks a dam and the sunset is beautiful from this spot. It is part of my property that I want to be able to access, and but for my disabilities I could. It allows me to do activities (exercise, play with my dogs) that keeps me both physically and mentally better (it helps my mental health ) - and good mental health facilitates my participation in community.

1. Given this rationale for requesting the support, a problem arises for Ms Kuzio-Barnes in light of Ms Haberley's evidence regarding the risks in Ms Kuzio-Barnes using her mobility scooter on the grassed areas of her property while unaccompanied by another person. As already explained, this recommendation by Ms Haberley will impose limitations upon Ms Kuzio-Barnes' access to the grassed areas of her property and will certainly curtail her opportunities for such access, in terms of what she envisioned when preparing the above submission.
2. Rule 5.1 of the Support Rules stipulates that a support will not be provided if it is likely to cause harm to a participant. On Ms Haberley's evidence, the risks to Ms Kuzio-Barnes of using her scooter while unaccompanied, to access the grassed area beyond the gate, are both appreciable and significant.
3. In accordance with Ms Haberley's recommendation, access to the grassed area by Ms Kuzio-Barnes by means of this gate should only occur, outside emergencies, while Ms Kuzio-Barnes is accompanied. When another person is present any difficulties that Ms Kuzio-Barnes might experience in attempting to open the gate herself fall away.
4. Additionally, the evidence reflects that the difficulties experienced by Ms Kuzio-Barnes in operating the current gate arise from its 'temporary' style of construction, rather than as a result of Ms Kuzio-Barnes' impairments. The expense of installing a gate that might be easier to operate is one that any homeowner would face, in the circumstances as established by the evidence. The Tribunal is not satisfied that the requested support is necessary to address needs of Ms Kuzio-Barnes arising from impairments in relation to which she meets the disability requirements in the NDIS Act, pursuant to section 34(1)(aa).
5. The Tribunal is not persuaded that the automated gate as requested by Ms Kuzio-Barnes should be provided.

1. The Tribunal sets aside the decision under review and this matter is remitted to the Agency for reconsideration with directions that:

(j) The Applicant's current Statement of Participant Supports is to include the following additional supports, in the form of modifications to the Applicant's residence:

1. Construction of a concrete path to the right-hand side of the residence. 2. Construction of a concrete path to the left-hand side of the residence. 3. The installation of a mobility scooter charging point in the patio area. 4. Widening of the rear garage door.

(k) The additional supports are to be constructed/installed as provided in the relevant building quotations as noted in this decision. > > (l) All other supports in the Applicant's current Statement of Participant Supports, excepting any one-off assistive technology and home modification supports already provided, are to be replicated from the date on which the supports specified in paragraph (a) are included in the Applicant's Statement of Participant Supports until the reassessment date.

I certify that the preceding one hundred and eighty-three (183) paragraphs are a true copy of the reasons for the decision herein of General Member W Strange.

[1] See section 21, National Disability Insurance Scheme Act 2024 (Cth).

[2] See section 24, National Disability Insurance Scheme Act 2024 (Cth).

[3] Exhibit 2, Joint Hearing Bundle (Hearing Bundle), Document 1, Agency's Statement of Facts, Issues and Contentions (Agency's SFIC), 12 November 2024, [6].

[4] Exhibit 1, T-Documents, Document T35, NDIS Plan (17 November 2022 to 17 November 2023), pages 171-185.

[5] T-Documents, Document T25, Extract of Interaction Notes, Review Request, 24 November 2022, page 143.

[6] T-Documents, Document T2, Internal Review Decision, 18 January 2023, pages 22-30.

[7] T-Documents, Document T1, Application for Review of Decision, 14 February 2023, pages 1-21.

[10] Exhibit 3, Radiology report, Dr Sowoweye, dated 14 February 2025.

[11] Exhibit 4, NDIS policy Home modifications guidance for builders and designers, Version 2.0, September 2022.

[12] This section and some of the following sections regarding the applicable law have been adapted from previous decisions of the Member.

[14] Shi v Migration Agents' Registration Authority [2008] HCA 31; (2008) 235 CLR 286, 324-325, 327 (Kiefel J).

[15] Administrative Review Tribunal Act 2024 (Cth), s 54.

[16] Shi (note 17) 300-301 (Kirby J); 314-315 (Hayne and Heydon JJ); 327-328 (Kiefel J).

[17] Beezley v Repatriation Commission [2015] FCAFC 165 [68], as applied in Sutherland v National Disability Insurance Scheme [2024] AATA 411 [53].

[18] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth), s 2.

[19] The Agency addressed these matters in its SFIC, page 18.

[20] Item 132 of Schedule 1 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024.

[21] National Disability Insurance Agency v WRMF [2020] FCAFC 79 (WRMF), at [141].

[22] 'General support' is defined in section 13(2) of the NDIS Act.

[23] McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle), at [91]-[93].

[25] This section is also repeated in Part 1 of the Support Rules.

[26] Which in turn reflect some of the requirements under section 34(1) of the Act.

[27] [2017] FCA 308.

[29] See https://www.ndis.gov.au/about-us/operational-guidelines

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

[31] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 (President Brennan J).

[32] Evidence of Ms Kuzio-Barnes, 24 March 2025. Other evidence indicated the home was built in 2007, meaning that the period of Ms Kuzio-Barnes residing there was approximately 18 years, rather than 20.

[33] Hearing Bundle, Document R1, Report of Mr Chris O'Dowd, 1 November 2023, pages 1216-1265 (Mr O'Dowd's report), at page 1226.

[34] Hearing Bundle, Document A39, NDIS Complex Home Modification form, completed by Ms Elizabeth Haberley, Occupational Therapist, dated 29 November 2023, pages 792-817.

[35] Hearing Bundle, Document A40, Brief for Building Works Contractor, RAR Therapy (Ms Elizabeth Haberley), dated 29 November 2023, pages 818-826.

[36] Hearing Bundle, Document A39, NDIS Complex Home Modification form, 29 November 2023, page 808.

[39] Hearing Bundle, Document A39, NDIS Complex Home Modification form, page 110.

[40] Hearing Bundle, Document A64, Diagram of Ms Kuzio-Barnes' property, 30 August 2024, page 947.

[42] Hearing Bundle, Agency's SFIC, pages 5-6.

[43] Hearing Bundle, Document R6, NDIS Plan, 11 June 2024, pages 1392-1406.

[45] Hearing Bundle, Document 3, Applicant's Response to the Agency's Statement of Facts, issues and Contentions, pages 26-37.

[46] Hearing Bundle, Document A31, Statement of Participant Lived Experience (Ms Kuzio-Barnes), 22 June 2023, pages 721-763.

[47] Hearing Bundle, Document A1, Report of Clinical Psychologist, 12 May 2020, pages 317-322.

[48] Ms Kuzio-Barnes gave evidence on 24 March 2025 that she was no longer using her walker.

[49] World Health Organisation Disability Assessment.

[50] See (for example) Hearing Bundle documents A10 (Report of Occupational therapist Ms Alana Thorpe, 8 November 2022, pages 364-375); A13 (Report of Psychologist, Ms Yvette Kerr, 25 November 2022, page 396); A19 (Medical reports and records of Ms Kuzio-Barnes' General Practitioner Dr Sarita Gurung, 3 April 2024, pages 409-450); A28 (Physiotherapy Report, Ms Rachael Tassoti, 18 May 2023, pages 690-694); A71 and A72 (two collections of reports from treating doctors and allied health professionals), pages 1005-1059 and 1060-1186; and R1, Mr O'Dowd's report, pages 1216-1265.

[51] Hearing Bundle, Document A31, Statement of Participant Lived Experience (Ms Kuzio-Barnes), 22 June 2023, page 723.

[52] This is a reference to Ankylosing Spondylitis.

[53] Hearing Bundle, Document A31, Statement of Participant Lived Experience (Ms Kuzio-Barnes), 22 June 2023, pages 724-725.

[58] Hearing Bundle, Mr O'Dowd's report, page 1238.

[59] Evidence of Ms Kuzio-Barnes, 24 March 2025.

[60] Hearing Bundle, Document A79, Letter from Physiotherapist (Ms Rachael Tassoti), 4 December 2024, page 1215

[61] Hearing Bundle, Document A56, Ausnorth Building and Construction quote, 19 March 2024, pages 911-920.

[62] Hearing Bundle, Document A48, NDIS Assistive Technology Assessment form, completed by Ms Alana Thorpe, submitted 15 February 2025, pages 854-889.

[64] Hearing Bundle, Document A49, Letter from Occupational Therapist Ms Alana Thorpe, 15 February 2025, pages 890-893, at page 891.

[65] Agency's SFIC, Attachment A, pages 13-14.

[66] Evidence of Ms Kuzio-Barnes, 24 March 2025.

[67] Hearing Bundle, Document A63, Written submissions by Ms Kuzio-Barnes, 30 August 2024, pages 940-946, at page 940.

[68] Ibid, page 941; Ms Kuzio-Barnes gave evidence on 24 March 2025 that she receives support worker assistance in her home for 6 hours per day, between 7am and 1pm.

[69] Evidence of Ms Kuzio-Barnes, 24 March 2025.

[70] Ibid, pages 942-943; Hearing Bundle, Document A3, Ms Kuzio-Barnes' response to the Agency's SFIC, 21 February 2025, pages 26-37, and evidence of Ms Kuzio-Barnes, 24 March 2025.

[71] Hearing Bundle, Document A3, Ms Kuzio-Barnes' response to the Agency's SFIC, pages 29-30.

[72] Hearing Bundle, Document A63, Written submissions by Ms Kuzio-Barnes, pages 942-943.

[73] Evidence of Ms Kuzio-Barnes, 24 March 2025 and Hearing Bundle, Document A3, Ms Kuzio-Barnes' response to the Agency's SFIC, at pages 29-34.

[74] Hearing Bundle, Document A3, Ms Kuzio-Barnes' response to the Agency's SFIC, at page 30; and Hearing Bundle, Document A63, Written submissions by Ms Kuzio-Barnes, page 942.

[75] Evidence of Ms Kuzio-Barnes, 24 March 2025.

[76] Hearing Bundle, Document A3, Ms Kuzio-Barnes' response to the Agency's SFIC, page 37.

[77] Hearing Bundle, Document A63, Written submissions by Ms Kuzio-Barnes, page 945.

[78] Noting that Ms Kuzio-Barnes' written and oral submissions were largely prepared either prior to the October 2024 amendments, or without knowledge of those amendments, and therefore reflected section 34 as it read prior to those amendments.

[79] Hearing Bundle, Document A63, Written submissions by Ms Kuzio-Barnes, pages 945-946.

[80] Hearing Bundle, Document A63, Written submissions by Ms Kuzio-Barnes, page 946.

[82] Hearing Bundle, Document A1, Agency's SFIC, [27], noting Mr O'Dowd's report at page 1243 of the Hearing Bundle.

[90] See the Transitional Rules; Schedule 2, Item 1, supports (c) and (e).

[92] These two documents were respectively Hearing Bundle Documents A39 and A40. Both documents were dated 29 November 2023.

[93] On 13 November 2023 (Hearing Bundle, Document A39, NDIS Assessment template - Complex home modifications, page 794).

[94] Hearing Bundle, Document R1, pages 1216-1265.

[95] Hearing Bundle, Document A79, page 1215.

[96] As noted, during the course of the review the Agency agreed to fund home modifications in the form of ramp access to the front and rear of Ms Kuzio-Barnes' home.

[98] The Guidelines published by the NDIS can be viewed at Our Guidelines | NDIS

[99] QGRY and National Disability Insurance Agency [2025] ARTA 598, at [98].

[101] Hearing Bundle, Document A65, Ausnorth Building and Construction quote, 23 October 2024, pages 948-950.

[102] Evidence of Mr O'Dowd, 24 March 2025.

[103]Hearing Bundle, Document A10, Report of Occupational Therapist (Ms Alana Thorpe) dated 8 November 2022, pages 364-375, at page 374.

[104] Hearing Bundle, Mr O'Dowd's report, page 1246.

[105] Hearing Bundle, Document A48, Assistive Technology Assessment (completed by Ms Alana Thorpe) 15 February 2024, pages 854-889.

[110] Hearing Bundle, Document A48, Assistive Technology Assessment (completed by Ms Alana Thorpe), page 874.

[111] Hearing Bundle, Document A51, Email form Ms Kuzio-Barnes, 21 February 2024, pages 896-900, at page 898.

[113] Hearing Bundle, Document R2, Permobil M3 Owner's Manual. Pages 1266-1341, at page 1295.

[114] Hearing Bundle, Document A3, Ms Kuzio-Barnes' Response to the Agency's SFIC, at pages 32-34.

[115] The full sections of the relevant excerpts from the manual are reproduced, for context.

[116] Hearing Bundle, Document A66, Pathrider 140XL owner's manual, pages 951-997, at pages 962-963. The Tribunal notes also that a specifications document and specifications chart for this scooter were also in evidence, being Hearing Bundle documents R4 and R6, at pages 1389-1390 and 1391 respectively.

[117] There is also an area on the left side of the house that adjoins some gravel - see Hearing Bundle, Document A64, Diagram of Ms Kuzio-Barnes' house, page 947.

[118] Hearing Bundle, Agency's SFIC, page 7.

[119] Closing submissions of Counsel for the Agency, 25 March 2025 and the Agency's SFIC, [43]

[121] Hearing Bundle, Document A63, Written submissions by Ms Kuzio-Barnes, 30 August 2024, at page 945.

[122] Closing submissions of the Applicant, 25 March 2025.

[123] Hearing Bundle, Document R6, NDIS Plan, 11 June 2024, page 1397.

[124] Hearing Bundle, Document A65, Ausnorth Building and Construction quote, 23 October 2024, pages 948-950.

[125] See Hearing Bundle, Document A56, Quote by Ausnorth Building and Construction, 19 March 2024, pages 911-920, at page 917.

[127] The Tribunal notes that some of these costs are now expressly addressed by the National Disability Insurance Scheme (Getting the NDIS back on Track No.1) (NDIS Supports) Transitional Rules 2024.

[128] Warwick v National Disability Insurance Agency [2024] FCA 16, at [15].

[129] National Disability Insurance Agency v Warwick [2025] FCAFC 100, at [66].

[130] Under the National Disability Insurance Scheme (Getting the NDIS back on Track No.1) (NDIS Supports) Transitional Rules 2024 Schedule 2, Item 1, supports (c) and (e).

[132] Hearing Bundle, Document A65, Ausnorth Building and Construction quote, 23 October 2024, page 949.

[133] Agency's SFIC, Item 7 in the table at [20].

[134] Evidence and oral submissions of Ms Kuzio-Barnes, 24 and 25 March 2025.

[135] Evidence of Ms Haberley, 25 March 2025.

[136] Hearing Bundle, Document A40, Report to Builders (Ms Haberley), pages 821-822.

[137] Hearing Bundle, Document 3, Ms Kuzio-Barnes' Response to the Agency's SFIC, page 30.

[138] Hearing Bundle, Document R3, Pathrider 140XL Owner's' Manual, page 975.

[140] See in particular Hearing Bundle, Document A40, Report to Builders (by Ms Elizabeth Haberley) at page 825.