Decision: The Tribunal affirms the decision under review.

NATIONAL DISABILITY INSURANCE SCHEME - approval of a Statement of Participant Supports - Applicant/participant seeking funding for Specialist Disability Accommodation - whether participant has extreme functional impairment - whether participant has very high support needs - whether participant meets Specialist Disability Accommodation needs requirement - decision under review affirmed

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 (Getting the NDIS Back on Track No.1) Act 2024 (Cth)

National Disability Insurance Scheme (Getting the NDIS Back on Track) Transitional Rules 2024 (Cth)

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

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

N_a_tional Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth)

Allen and CEO, National Disability Insurance Agency [2025] ARTA 1359

Beezley v Repatriation Commission (2015) 150 ALD 111; [2015] FCAFC 165

Charrington and National Disability Insurance Agency [2022] AATA 1160

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

G v Minister for Home Affairs [2019] FCAFC 79

Mazy and National Disability Insurance Agency (2018) 168 ALD 517

McGarrigle v National Disability Insurance Agency [2017] FCA 308

National Disability Insurance Agency v Warwick [2025] FCAFC 100

National Disability Insurance Agency v WRMF [2020] FCAFC 79

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

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

Sutherland v National Disability Insurance Scheme [2024] AATA 411

Winn and National Disability Insurance Agency [2024] AATA 3034

National Disability Insurance Scheme, Operational Guideline - Specialist Disability Accommodation

National Disability Insurance Scheme, Specialist Disability Accommodation Design Standard

1. Mr Ryan McLean is the Applicant in this review. He resides with his brother, Mr Brett McLean, in a home owned by his parents and located in a regional area of South-East Queensland.
2. Both the McLean brothers are participants in the National Disability Insurance Scheme (the NDIS). Each has brought a separate application before the Tribunal that, in summary, seeks the review of a decision made by the National Disability Insurance Agency (the Agency) to approve Statements of Participant Supports (SoPS) that did not include funding for a specific NDIS support known as Specialist Disability Accommodation (SDA).
3. SDA is a range of housing designed for people with extreme functional impairment or very high needs, and which is designed to be more accessible for them, based on their disability support needs, and to assist the person to live more independently in their home and allow other supports to be delivered in better or more safe ways.[1]
4. To avoid confusion and with the approval of the brothers' parents (who I will refer to as Mr and Mrs McLean) and their legal representatives, the brothers were referred to by their first names during the hearing of their reviews, and I will follow that practice in this decision.
5. Ryan's application was heard together with Brett's application (Matter 2022/7626). While both applications raise similar issues for consideration, and there were witnesses common to both applications, the resolution of the relevant issues in each application depends on the individual circumstances of the brothers, and the specific evidence pertaining to those matters. Accordingly, the Tribunal will publish separate decisions for each brother's application.
6. This decision relates to Ryan's application.
7. For the reasons that follow, after considering all of the evidence I have found that Ryan is not eligible to receive this support, and I have therefore decided to affirm the Agency's decision.

1. Ryan is now 39 years of age. Ryan and his brother both have a rare chromosomal syndrome, known as partial trisomy 9P+. Ryan was accepted as a participant in the NDIS because of impairments resulting from this syndrome, as well as epilepsy, partial T4 paraplegia and a hearing impairment.[2]
2. On 31 March 2022 a delegate of the Chief Executive Officer (the CEO) of the Agency approved Ryan's NDIS plan, under section 33(2) of the National Disability Insurance Act 2013 (Cth) (the NDIS Act), for a three-year period from that date.[3] Included in Ryan's plan was a SoPS, setting out the supports to be provided to him over the life of his plan. A detailed breakdown of the supports in Ryan's plan was provided as an annexure to the Agency's primary written submissions filed during the review, being the Agency's Updated Statement of Facts, Issues and Contentions, dated 14 February 2025[4] (the Agency's updated SFIC). During the hearing the Tribunal was advised that this plan had been extended.
3. Ryan's NDIS plan contains a 'profile' part, which includes a section headed 'About me', where the following information appears:

I live with my brother Brett in supported living arrangement. Brett and I both have a similar disability. Mum and dad have moved out we have support workers helping us with all our day to day needs. My Dad stays with me for 2 nights per week. My grandma lives near us and Mum and Dad take care of her as she is elderly. We don't have any other family or friends around. I don't have any friends who I can meet up with but I'd like to.

I would like to access the community more by myself without my brother to do the things that I like to do. I have an interest in mixing music and singing. I'd really like to meet some people and make some real friends so that I could have a better network and social life.

I get myself up every morning and get ready for work. I need support to get ready. I am prompted with every task. I walk to work at Endeavour on one day a week, I also work at [a café] on Monday and Thursday and I am supported by the Cafe Staff. In past I gained good skills in hospitality working at mum and dad's caf??. I learnt to serve and clear tables and felt more comfortable speaking with customers.

Some days if the weather isn't good I will need someone to drive me there to. If there is anything that changes with me walking to work (eg. rain), I become totally confused and I can wander. I have also been known to become distracted when I see a stray dog and will follow that dog and potentially become lost. This is a significant safety risk factor for me.

At home I like to relax and take it easy. I watch movies and I like Pok??mon, I also like photography and animals. I have a dog and a cat who I love very much. On Wednesdays a support worker comes and assists my brother and I with chores in the home, and with community access.

I need support to participant in social activities and to attend any appointments. On Fridays a Support Worker takes myself and Brett to the Golf Club from 6.00pm to 10.00pm. I would really like to do some skills development so that I can work in a job in hospitality or with animals.[5]

1. The plan also lists Ryan's goals, which are as follows:
   • Short-term goal:
     • 'During the plan, I would like to continue to live in shared, supported independent living, to grow personally and lead an independent life.'
     • 'During the plan I would like to access community, social and recreational activities of my choice and meet people and learn new things.'
   • Medium or long-term goals:
     • 'During the plan, I would like to maintain my work and be assisted with my supported employment.'
     • 'During the plan, I would like to interact with peers in my community and develop positive recreation and social routines.'
     • 'During this plan, I would like to establish a healthy eating and physical routine so that I can be independent and engaged in economic and social activities.'
2. The SoPS approved in Ryan's plan had a total cost of $599,597.16, over the three-year life of the plan. This funding is available across three categories of supports, being 'Core', 'Capacity Building' and 'Capital'.
3. In Core supports, funding of $421,282.70 is available for 'Daily Activities', of which the bulk is allocated for regular Supported Independent Living (SIL) with a small component for irregular SIL supports. A further $147,406.24 is available for Social, Community and Civic Participation, of which $21,926.40 is designated for supports in employment, with the remainder for accessing community activities (12 hours per week) and group activities in the community, 2 hours per week at a 1:2 ration (that is, this support is shared). The remaining core funding, of $10,368, is for transport costs.
4. For Capacity Building supports, $8,736.75 is allocated for 'Daily Activity', with no specified support. $10,815.12 is provided for Level 2 support co-ordination, at a rate of 26 hours per year, and $3,992.55 was allocated for 'one-off' establishment fees for setting up financial management arrangements, and monthly fees for ongoing maintenance of these arrangements.
5. No funding is allocated under Capital supports.[6]

1. After receiving Ryan's NDIS plan and SoPS, Ryan's mother, Mrs Lynne McLean, requested that the Agency undertake an internal review of the Agency's decision not to include funding for SDA in Ryan's SoPS.[7] Accompanying this request was an NDIS 'Supporting Evidence form - Home and Living'.[8]
2. Another delegate of the CEO undertook this internal review and pursuant to section 100(6) of the NDIS Act, decided on 18 August to affirm the decision of the original delegate not to include the requested SDA support in Ryan's plan.[9] This is the decision under review.[10]
3. After receiving that internal review decision (the decision under review), on 18 November 2022 Mrs McLean lodged an application for review, on behalf of Ryan, with the former Administrative Appeals Tribunal (the AAT), pursuant to section 103 of the NDIS Act.[11] I note that the time to so apply was extended pursuant to an order of the Tribunal made on 12 December 2022.
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, on 13 December 2022 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 that Mrs McLean lodged Ryan's review application in the AAT, the matter has had a lengthy history in the Tribunal. The review was originally listed for hearing in mid-2024 but had to be adjourned due to some health issues then being experienced by Brett. While much of the delay occasioning the journey of this review to hearing could not have been avoided, one outcome of the delay was that the materials and evidence filed during the review were dated by the time the hearing proceeded.
7. The review hearing was held on 20 and 22 May 2025, by video (via Microsoft Teams). Ryan was represented by Mr Christopher Bilboe, Special Counsel, of Intrepidus Law. Mr Philip Nolan of Counsel appeared for the Agency, instructed by Mills Oakley Lawyers.
8. At the hearing, the Tribunal had before it the T-Documents and other materials lodged by the parties during the review, including written submissions. These relevant evidentiary and other materials were collated in the form of separate Hearing Bundles, prepared and filed by the Agency, which for Ryan's matter became Exhibit 2. Additionally, the Agency filed a bundle of authorities, comprising relevant legislation excerpts, cases and NDIS Rules and Guidelines.
9. During the hearing Ms McLean and her husband Bruce gave evidence relating to their sons' applications. On behalf of Ryan and Brett, an occupational therapist, Ms Julie Yule, gave evidence. The Agency called Mr Gary Stretton to give evidence. Mr Stretton is an occupational therapist who was engaged by the Agency to undertake an assessment and prepare a report for the purpose of each review.
10. The one issue of contest in this review, and at the hearing, was whether Ryan's SoPS should include funding for SDA.

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 and other instruments relating to supports and particularly SDA), they cannot succeed.[17]

1. After Ryan's 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); and the definition of 'NDIS support' contained within section 10. 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 Ryan's 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.

1. 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 this context, I note 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. Sections 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 include 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 application in considering if section 34(1)(f) is met.
3. Specific rules have been made in relation to SDA supports. They are the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (the SDA Rules).
4. Part 2 of the SDA Rules is expressed to apply to determine whether a participant is eligible to receive support for SDA.[29] Division 2 of this Part contains Rules 11 to 14, which provide for such eligibility, as follows:

11 Eligibility to receive support for specialist disability accommodation

A participant is eligible to receive support for specialist disability accommodation under the National Disability Insurance Scheme if the CEO is satisfied that:

(i) has extreme functional impairment (see section 12); or

(ii) has very high support needs (see section 13); and

(b) the participant meets the SDA needs requirement (see section 14).

12 When a participant has an extreme functional impairment

(1) A participant has an extreme functional impairment if:

(a) the impairment results in extremely reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:

(b) the participant has a very high need for person-to-person supports in undertaking the activity even with assistive technology, equipment or home modifications.

(2) For the purposes of assessing whether a participant has an extreme functional impairment, the CEO may have regard to:

(a) any assessment or examination conducted in relation to the participant including any assessment or examination requested by the CEO under paragraph 36(2)(b) or 50(2)(b) or the Act; and

(b) the daily support requirements of the participant; and

(c) any assessment tool specified by the CEO for the purposes of this paragraph; and (d) any other matters that the CEO considers appropriate.

13 When a participant has very high support needs

(a) the participant has lived in specialist disability accommodation for extended periods and living in that accommodation has impacted on the capacity of the participant to transition to alternative living arrangements and support: or

(b) the participant has a very high need for person-to-person supports, either immediately available or constant, for a significant part of the day and either:

(i) there are limitations in the availability, capacity or capability of the participant's informal support network or risks to its sustainability; or

(ii) the participant is at risk or poses a risk to others, and that risk could be mitigated by the provision of specialist disability accommodation, having regard to the participant's response to risk and the interaction of the participant with the environment.

(2) For the purposes of assessing whether a participant has very high support needs, the CEO may have regard to:

(a) any assessment or examination conducted in relation to the participant, including any assessment or examination requested by the CEO under paragraph 36(2)(b) or 50(2)(b) of the Act; and

(b) the daily support requirements of the participant; and

(c) any assessment tool specified by the CEO for the purposes of this paragraph; and

(d) any other matters that the CEO considers appropriate.

14 When a participant meets the SDA needs requirement

(1) A participant meets the SDA needs requirement if, when compared to other supports alone, combined specialist disability accommodation and other supports would:

(a) better assist the participant to pursue the goals, objectives and aspirations set out in the participant's statement of goals and aspirations; and

(b) be more effective and beneficial, where possible, in:

(i) mitigating or alleviating the impact of the participant's impairment upon the participant's functional capacity; and

(ii) preventing the deterioration of the participant's functional capacity; and

(iii) improving the participant's functional capacity; and

(vi) maintaining or promoting the participant's ability to building capacity, including in the medium or long term; and

(iv) maintaining or promoting the participant's opportunities to develop skills; and

(c) if the participant has very high supports needs - be more effective and beneficial, where possible, in:

(i) reducing the participant's future needs for supports which might be required due to inappropriate accommodation; and

(ii) assisting the participant to pursue goals related to life opportunities and life transitions; and

(d) if the participant has an extreme functional impairment - be more effective in providing the participant with stability and continuity of support; and

(2) For the purposes of paragraph (1)(e), regard must be had to the following matters if the participant has very high support needs:

(a) whether combined specialist accommodation support and other supports would be likely to substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;

(b) the cost of providing the participant with supports needed to live in accommodation other than specialist disability accommodation, taking into account:

(i) whether those supports may be shared with other participants; and

(ii) limitations of the participant's informal support network.

1. Division 3 of Part 2 of the SDA Rules provides for the design, type and location of SDA, once a participant is found eligible for the support. Rule 15(1) sets out the matters to be determined by the CEO in respect of each eligible participant.

15 Matters to be determined by CEO in respect of each eligible participant

(1) The CEO must determine the following matters for an eligible participant:

(a) the SDA building type that is appropriate to support the eligible participant (see section 16);

(b) the SDA design category that is appropriate to support the eligible participant (see section 17);

(c) the area in which the specialist disability accommodation is to be located (see section 18):

(d) whether the specialist disability accommodation is to be provided as an in-kind support.

Note: The CEO may determine more than one SDA building type, SDA design category or location in relation to an eligible participant. The SDA building type, SDA design category and location must be specified in the participant's plan; see section 19.

1. Finally, Rule 19 provides that a participant's eligibility to receive support for SDA is to be included in their plan.
2. The Agency has also issued some Operational Guidelines which are relevant to NDIS plans and supports. Additionally, there is a specific Guideline concerning SDA. 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.' [30].
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.[31] 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.[32]
4. The Tribunal was also referred to the Agency's Design Standard for SDA during the review.

1. In a recent Tribunal decision of Allen and CEO, National Disability Insurance Agency [2025] ARTA 1359 (Allen and NDIA), Senior Member French explained that approach that must be taken in determining whether an SDA support should be approved for inclusion in a participant's SoPS. While lengthy, this explanation clearly and carefully sets out the relevant steps and considerations, and it is reproduced here:

Determination of whether support for SDA should be approved for inclusion in a participant's SoPS involves a legally and factually dense analysis in which the Tribunal must pose and answer the following questions in the following sequence:

Stage 1: Ascertain if the participant is eligible to receive support for SDA.

These requirements are expressed disjunctively. It is necessary for the participant to satisfy one requirement, it is not necessary that they satisfy both, but they may do so. If the answer to (i) or (ii) or both is "yes", proceed to Step 2 of Stage 1. If the answer to both (i) and (ii) is "no" that is the end of the enquiry. SDA cannot be approved for inclusion in the participant's SoPS, even if this request were to meet every other requirement of the Stage 1 and 2 enquiries because the first threshold requirement is not met.

Step 2: Determine if the participant meets the SDA needs requirement.

This requires a comparison of outcomes for the participant from two hypothetical support arrangements, being:

1. other supports alone, and
2. the combination of SDA with other supports.

The term "other supports" should be taken to encompass both formal (being the general supports provided and reasonable and necessary supports funded, or capable of being provided and funded in the participant's SoPS) and the informal support that is reasonably available to them.

The outcomes of these two support arrangements are compared by reference to a series of criteria. In this respect, it is necessary to ask the questions: would SDA:

(iii) better assist the participant to pursue the goals, objectives and aspirations set out in their Statement of Goals and Aspirations.

If the answer to (iii) is "yes" then consider the next SDA needs requirement. This criterion is not subject to limitation. Therefore, if the answer is "no" then that is the end of the enquiry. SDA cannot be approved for inclusion in the participant's SoPS even if this request were to meet every other requirement of the Stage 1 and 2 enquiries.

(iv) be more effective and beneficial for the participant, where possible, in achieving each of the five outcomes identified in paragraph 14(1)(b).

The five outcomes specified in paragraph 14(1)(b) are expressed conjunctively, however the chapeau of the paragraph contains the words "where possible". Consequently, each specified outcome must be satisfied, subject to it being possible to achieve that outcome.

At this point in the analysis, the enquiry bifurcates between participants with an extreme functional impairment and those with very high support needs as found in Step 1 (recognising that a participant may satisfy both criteria).

With respect to a participant who has very high support needs (but not one that has an extreme functional impairment),

(v) be more effective and beneficial for the participant, where possible, in achieving both outcomes specified in paragraph 14(1)(c).

The two outcomes specified in paragraph 14(1)(c) are expressed conjunctively, however the chapeau of the paragraph contains the words "where possible". Consequently, both specified outcomes must be satisfied, subject to it being possible to achieve each outcome.

With respect to a participant who has an extreme functional impairment (but not one that has very high support needs),

(vi) be more effective and beneficial for the participant in providing them with stability and continuity of support.

At this point in the analysis a converged enquiry resumes, but if a participant has very high support needs, there are separate mandatory considerations.

1. If a participant has an extreme functional impairment the analysis required in relation to this consideration is not further structured by the SDA Rules.
2. If the participant has very high support needs, in determining if SDA represents value for money regard must be had to the following mandatory considerations:

- whether combined specialist disability accommodation support and other supports would be likely to substantially improve the life stage outcomes for, and be of long-term benefit to the participant,

- the cost of providing the participant with supports needed to live in accommodation other than SDA taking into account;

- whether those supports may be shared with other participants; and

- limitations of the participant's informal support network.

If, on comparison of the conclusions reached in relation to the two hypothetical support arrangements, it is found that the participant meets the SDA needs requirement in addition to having either or both an extreme functional impairment or very high support needs, Stage 2 of the enquiry is reached. If it is found that the SDA needs requirement is not satisfied, then the participant is not eligible for support for SDA, and that is the end of the enquiry.

Stage 2 Determine if the requested support is reasonable and necessary having regard to the criteria in s 34(1) of the Act:

In effect, although each of the s 34(1) criteria must be formally considered, a finding will already have been made in Stage 1, step 1, as to the paragraph 34(1)(aa) consideration, and in Stage 1, Step 2 (iii), in relation to the paragraph 34(1)(a) consideration.

With respect to paragraph 34(1)(c) of the Act and Rule 3.1 of the Supports for Participants Rules, if the person has been found to have very high support needs, the question of whether SDA constitutes value for money has already been considered in the Stage 1, Step 2(vi). While that enquiry is not necessarily exhaustive of the relevant considerations under the Act and the Supports for Participants Rules, if there are additional matters that require consideration the Tribunal would be assisted by either party identifying with precision what those additional matters are.

With respect to persons found to have an extreme functional impairment the question of whether SDA represents value for money is considered 'at large' under the SDA Rules. It is difficult to see how further enquiry under the Act, including by reference to the Supports for Participants Rules, would add anything to the conclusions reached by reference to the SDA Rules. However, if there are additional matters that require consideration under the Act and Rules the Tribunal would be assisted by either party identifying with precision what those additional matters are.

With respect to the paragraph 34(1)(d) requirement, the issue of whether SDA is effective and beneficial for the participant has already been considered at the Stage 1, Step 2(iv) and (v) enquiries. While that enquiry is not necessarily exhaustive of the relevant considerations under the Act and Rules 3.2 and 3.3 of the Supports for Participants Rules, if there are additional matters that require consideration the Tribunal would be assisted by either party identifying with precision what those additional matters are.

The primary work left for s 34(1) to do is in relation to the paragraph s 34(1)(b), (e) and (f) considerations. Therefore, the Stage 2 inquiry involves the following steps:

Step 4: with respect to the paragraphs 34(1)(aa) and (a) considerations make findings based on the conclusions reached in Stage 1 and Steps 2 (i), (ii) and (iii),

Step 5: with respect to the paragraphs 34(1)(c) and (d) considerations, consider any further matters necessary to be considered in accordance with the Act and Supports for Participants Rules, not considered under the SDA Rules.

Step 6: with respect to the paragraph 34(1)(b) consideration, consider the evidence and make findings in relation to that requirement.

Step 7: with respect to the paragraph 34(1)(e) consideration, consider the evidence and make findings in relation to that requirement.

Step 8: with respect to the paragraph 34(1)(f) requirement consider the evidence and make findings in relation to that requirement having regard to Schedule 1, Item 29, of the NDIS Supports Transitional Rules and Rule 7 of the Miscellaneous Rules.

For support for SDA to be approved for inclusion in a participant's SoPS it must satisfy each of the s 34(1) requirements in accordance with the Act and relevant rules, in addition to satisfying the eligibility requirements for support for SDA. These requirements are expressed conjunctively, which means that if any one of them is not satisfied, this support cannot be approved for inclusion in a participant's SoPS. If that is the case, it is the end of the enquiry. If each requirement is satisfied, Stage 3 of the enquiry is reached.

Stage 3 Determine the building type, design category and area in which the SDA is to be located.

Step 9: determine the building type that is appropriate to support the participant, having regard to the matters set out in paragraphs 14(a) to (m) of the SDA Rules.

Step 10: determine the SDA design category that is appropriate to support the participant, having regard to the specific needs of the participant, noting that the "basic" SDA design category cannot be approved.

Step 11: determine the area in which the SDA is to be located having regard to the matters set out in paragraphs 18(1)(a) to (g), and the mandatory considerations set in paragraph 18(2) of the SDA Rules.

Step 12: consider if there are further matters that require consideration in relation to the approval of support for SDA having regard to Rules 15(2), 19, 20 and 21 of the SDA Rules.[33]

1. I respectfully agree with Senior Member French's analysis and will adopt it in my approach here.
2. The first consideration is whether Ryan has an extreme functional impairment or very high support needs, or both.

Does the Applicant have an Extreme Functional Impairment?

1. Ms Julie Yule is an occupational therapist. Ms Yule provided a report on behalf of Ryan, concerning an assessment conducted of Ryan at his home on 26 July 2021 (Ms Yule's report).[34] Ms Yule also gave evidence at the hearing on 20 May 2025.
2. At the hearing, Ms Yule contended that Ryan has an extreme functional impairment in respect of two of the activities (or domains) referred to in Rule 12(1)(a); namely, self-care and self-management.[35] Alternatively, that he has very high support needs, pursuant to Rule 13. Ms Yule had assessed Ryan as independent in the activity of mobility.[36]
3. In written submissions prepared and filed by Mr McLean prior to the engagement of the legal representatives who appeared for Ryan at the hearing, it was contended Ryan lived with an extreme functional impairment for the activities of self-care and self-management.[37]
4. The Agency acknowledged that Ryan has a substantially reduced functional capacity in the domain of self-management. However, it was contended that the threshold of extreme functional impairment was not met in any domain.[38]
5. Mr Gary Stretton, the occupational therapist engaged by the Agency in this review, conducted an evaluation of Ryan 'on the papers'; that is, he did not conduct an in-person assessment. His report, dated 15 January 2024, was in evidence.[39] Mr Stretton, relying on his assessment of Ms Yule's reports, did not consider that Ryan has extremely reduced functional capacity in any domain.[40]
6. As noted, Ryan is now 39 years of age. He lives with his brother Brett in the family home. Mr and Mrs McLean previously lived with their sons in this home but moved away to a nearby home to enable Ryan and Brett to live in the family home, assisted by their support workers. The brothers presently share some of the NDIS supports provided to them.
7. It is proposed, if SDA supports are provided, to build two single-occupancy SDA dwellings on the property where the family home is, as permanent housing options for Ryan and Brett. This would enable the brothers to live alongside each other, but not together, and to continue to share supports. It would also allow Mr and Mrs McLean to return to live in the family home.
8. The occupational therapy reports reflect that as a result of the chromosomal syndrome Partial Trisomy 9P+, Ryan lives with impairments that include a significant intellectual impairment. He also has diabetes.
9. Ryan has worked in a supported employment role with Endeavour for some time. At the time of Ms Yule's assessment, it was noted that Ryan was working for one day per week in his role with Endeavour, 'in their packaging business.' He also works two four-hour shifts a week in a café, supported by another disability employment service.[41]
10. In Allen and NDIA, Senior Member French noted that two questions arise in determining the degree to which the participant's impairments limit their function in the relevant domains, for the purpose of determining if the participant has extreme functional impairment
11. The first is what 'condition' of the Applicant should the assessment be based on; that is, their 'intrinsic' state, or is assessed 'after' the utilisation of any treatment, assistive technology, home modifications and so on, to which the person has access? Senior Member French confirmed that an applicant's functional capacity should be assessed in their 'naked' or 'intrinsic' state. One reason for favouring such approach is that it is consistent with the approach take to determining functional capacity for the purpose of access to the NDIS.[42] I regard this approach as settled, and have adopted it in my consideration.
12. The second question is what is the meaning of 'extreme'. This was the subject of submissions during the review.
13. The Agency noted the deliberate deployment in this context of the word 'extreme', contrasted with 'substantially' used elsewhere in the NDIS legislative scheme, this being consistent with a more serious or heightened level of impairment. It was submitted, citing the Tribunal decision in Charrington and NDIA [2022] AATA 1160 (Charrington), that 'extreme' should be given its ordinary meaning, being 'of the highest degree.'[43]
14. Counsel for the Applicant noted the above construction from Charrington and placed emphasis on the need to consider the 'degree' to which a participant can function in a domain, and that Rule 12(1) speaks of 'extremely reduced functional capacity', with the use of the word 'reduced' meaning that a participant is not required to demonstrate the 'absence' of a function, but a reduction (to the necessary degree).[44]
15. In Allen and NDIA, which was decided after the hearing in this review had concluded, Senior Member French while the ordinary meaning of 'extreme' amplifies the concept that underpins the word, it does not, in the context of Rule 12(1) assist in the task of ascertaining with relative precision the threshold at which the condition it describes is reached. Accordingly, Senior Member French sought to arrive at an 'objective' measure of the relevant threshold, by considering the approach taken to determining human function in the context of the International Classification of Functioning, Disability and Health (the ICF) and its designated assessment tool, the World Health Organisation Disability Assessment Schedule (WHODAS 2.0), which assesses the degree of difficulty a person may experience in executing tasks of daily living due to a health condition. The WHODAS assesses the degree of difficulty experienced by a person according to a five-point scale, ranging from 'none' to 'extreme or cannot do'.[45] Senior Member French concluded:

Using the WHODAS difficulty factors and ratings as an interpretive aid, an "extreme" functional impairment for the purposes of Rule 12.1 of the SDA Rules is therefore a degree of difficulty in performing a task or action in a life activity area that is 96% or more greater than a person who does not have the subject person's health condition/s, measured in terms of the increased effort, discomfort or pain, slowness and/or changes to the way the task or action is performed.[46]

1. I am mindful that the parties have not had an opportunity to specifically comment on this approach. However, while Ms Yule's report about Ryan does not indicate that a WHODAS assessment was undertaken for Ryan, it does reflect the undertaking of other 'objective' assessment measures, being the Functional Independence Measure (FIM), Version 5.5, and the Functional Assessment Measure (FAM) and Extended ADL (Activities of Daily Living) Items; also the Adaptive Behaviour Assessment System, Third Edition (ABAS-3); the Care and Needs Scale (CANS); and the Supervision Rating Scale (SRS). Under the FIM and FAM measures, higher scores indicate higher levels of independence; lower score indicating greater levels of assistance are required. Consideration of evidence arising from the administration of these instruments is not inconsistent, in my view, with the approach taken in Allen and NDIA, and provides for some objective measures to be considered, alongside observations and opinions. In this respect I acknowledge the submissions made by the Agency's Counsel as to the possible divergence between the measures used in such instruments and the provisions of the NDIS legislative scheme, and I have been mindful of that in considering the weight of be given to this evidence.
2. I will first consider the domain of self-care. Ms Yule's evidence at the hearing was that Ryan has extreme functional impairment in this domain. The SDA Guidelines provide the following description of this domain:

Self-care - such as washing yourself, going to the toilet, getting dressed, eating, drinking, talking and taking medication.

1. In her report, Ms Yule assessed that Ryan required supervision and assistance, ranging from prompting to total, to perform activities of self-care. In looking at specific tasks, Ms Yule made the following assessments of Ryan:[47]
   • Eating - supervision by a carer is required, due to Ryan having some reduced oral motor control and coordination when eating. He also has 'some issues with swallowing requiring supervision'. He has a limited diet due to sensory processing difficulties and requires ongoing supervision for food choices.
   • Grooming - Ryan requires prompting to complete tasks such as brushing his teeth and hair and washing his hands and face.
   • Showering - prompting required for appropriate personal hygiene, such as using soap. He requires assistance to wash his hair.
   • Dressing - supervision and set-up assistance required to prepare Ryan's clothing at times, and to ensure it is occasion and weather appropriate.
   • Toileting - Ryan can manage his own clothing before and after toileting and clean himself. He requires supervision cleaning and following any episode of incontinence. Ryan experiences only 'very occasional' episodes of bowel or bladder incontinence. [It is noted that unlike his brother's plan, Ryan's plan does not include any funding for consumable items, such as incontinence aids].
   • Sleep - supervision required. Ryan sleeps well but has a tendency to stay up late.
   • The FIM and FAM measures administered by Ms Yule resulted in a score of 35/49 for self-care (eating, swallowing, grooming, bathing, dressing and toileting). 'Bladder and Bowel Management' is measured separately; Ryan's score was 10/14. Of these results, Ms Yule said:

Ryan's score on individual items on the FIM+FAM were all 5 and below, which is indicative of Ryan requiring the presence of a carer during all tasks, either to provide prompting or set up assistance through to moderating direction and assistance.[48]

• The ABAS-3 measures administered by Ms Yule produced scores of 'extremely low' across all areas (conceptual, social and practical). These measures do not directly align with the task under Rule 12(1). The area of 'Practical' includes the 'adaptive skill area' of 'self-care', for which Ryan's score was 'extremely low', compared to same aged peers.
• Ms Yule also undertook a CANS assessment of Ryan, which she stated is an 8-level categorical scale that is designed to measure the level of support needs of older adolescents and adults with traumatic brain injury. It addresses tasks in both the domain of self-care and also self-management (as below). Ryan's score was 15/23, which Ms Yule described as a CANS level of 7, indicating that Ryan 'cannot be left alone - needs support 24 hours per day.'
• Ms Yule also deployed the SRS assessment tool, which measures the level of supervision that an individual receives from caregivers, rated on a 13-point scale which can be grouped into five categories of supervision - independent, overnight supervision, part-time supervision, full-time indirect and full time direct supervision. Ryan was assessed as needing full-time indirect supervision; 'at least one supervising person is always present, but the supervising person does not check on the person more than once every thirty minutes.'

1. Ms Yule did not conclude in her report that Ryan has an extremely reduced functional capacity for self-care. She did arrive at that conclusion in relation to the domain of self-management, which is dealt with below. Ms Yule did additionally conclude that Ryan has a very high need for person-to-person supports, as he requires support 24 hours per day.
2. It is noted that under the FIM and FAM scales,[49] a score of five, four or three falls into the broad category of 'DEPENDENT - Receives help from another person to perform the activity, or the activity is not performed (Requires helper)', but within the sub-category of 'Modified Dependence: The person performs more than half the task themselves'. A score of five is described as:

Receives no more than stand-by cueing, coaxing or verbal prompting without physical contact,

OR help just to set-up equipment, apply orthosis, etc.

Receives moderate help, but still performs 50-74% of the task themselves

(Hands on help but patient does more than half the task themselves)

A score of one falls in the sub-category of 'Complete Dependence: The person performs less than half the task' and is described as:

Receives total assistance - the person contributes less than 25% of the effort or the activity is not performed

Patient unable or does very little ( (i) There are limitations in the availability, capacity or capability of the participant's informal support network or risks to its sustainability; or

(ii) the participant is at risk or poses a risk to others, and that risk could be mitigated by the provision of specialist disability accommodation, having regard to the participant's response to risk and the interaction of the participant with the environment.

1. I am satisfied that Ryan meets this requirement. This is for the following reasons.
2. First, the evidence reflects that Ryan receives support for 24 hours a day. Ms Yule and Mr Stretton agree on this. Additionally, Ms Yule noted the CANS score for Ryan was level 7, reflecting that 'he cannot be left alone - needs support 24 hours per day.' His SRS scale score placed him in the level of requiring full-time indirect supervision.
3. This support is provided through the significant funding allocated for relevant core supports in his SoPS, and by his parents, and frequently a combination of both. Ryan's employment, when he is able to attend, is supported and provided by specialist disability services. These support levels have been in place for some time now, noting the initial approval of Ryan's current SoPS in 2022.
4. The Agency submitted (footnotes omitted):

The words "immediately available" and "constant" are important. They suggest that the participant essentially needs to either have someone constantly supervising them, or at least having someone immediately available to attend to them at a moment's notice.

Ms Yule notes that the Applicant requires permanent supervision on a 24-hour basis. Mr Stretton agrees that the Applicant requires 24-hour support however the intensity of these support requirements varies throughout the day. He can be left alone to complete certain activities and requires either prompting, supervision or physical assistance for others. He does not require constant in person support (or to constantly be in a support worker's line of sight), but support does need to be available in the vicinity if required should there be a fall or other emergency.

It is contended that the need for have a person immediately available should in the event of a fall or an emergency does not mean that a support person needs to be "immediately available" and "constant". Most, if not all "participants" have risk emergencies in their homes, and thus it could not have been intended for this provision to be satisfied simply because there needs to be a person available in the event of an emergency. Obviously, the likelihood of and significance of the risk needs to be considered. It is contended that, having regard to the significance of the risk in this case, the Applicant does not require person-to-person supports, either immediately available or constant, for a significant part of the day.

Further, rule 13(1)(b) of the SDA Rules require there to be limitations in the availability, capacity or capability of the participant's informal support network or risks to its sustainability; or the participant is at risk or poses a risk to others, and that risk could be mitigated by the provision of specialist disability accommodation, having regard to the participant's response to risk and the interaction of the participant with the environment. There is no evidence regarding the limitations of the Applicant's informal support network, including his parents, to provide the assistance in the event of said emergencies.[53]

1. I am unable to accept this interpretation as applying to Ryan's circumstances. The SDA Rules do not define 'person-to-person supports.' In Allen and NDIA Senior Member French considered that the term:

... should be taken to refer to direct practical support provided to, and/or needed by, the Applicant in relation to the tasks and actions of daily living whether that support is provided formally (by a paid support worker) or informally (by a family member, carer or friend).[54]

1. In that case Senior Member French also found that the provision to the participant of 4.5 hours of support worker assistance each day (not funded through the NDIS), together with 20 hours per week of support worker assistance with social, economic and community participation under the NDIS, was indicative of a very high need for such person-to-person support.
2. Noting the evidence about the supports shared by the brothers at times, such as in the home, I do not consider that the term should be interpreted to require one to one support. I accept the contentions made by both Counsel that the ratio of support is a relevant factor, but not determinative.
3. The Guidelines provide:

This means you need a lot of person-to-person support for a significant part of the day. You need this support with you, or you need to be able to get this support straight away. We also need to know that either:

• Your family or friends can't give you this support or maintain the level of support you need. For example, you might not have enough informal supports, or your usual informal support network can't support you anymore.
• Specialist disability accommodation will help reduce any safety risks to you or others around you. For example, if you'll need help right away to leave your home in an emergency.[55]

1. Neither the Rules nor the Guidelines specify any threshold, in terms of (for example), support worker hours required to constitute a 'very high need'.
2. It is clear that Ryan does not need a support person to be alongside him for every minute of the day, every day. However, the funding of 24-hour support worker assistance (some shared with Brett), and the evidence noted above, reflects that across every day he will need assistance to be available to him at a range of times, and that the collective scope of all of these tasks of daily living with which he requires support also indicates that such support is needed for a significant part of the day, every day. This was accepted by the Agency.[56]
3. These needs, on the evidence, are not just in the event of a fall or an emergency. The above evidence about Ryan's capacities in the domains of self-care and self-management reflect his significant support needs, ranging from prompting and supervision, through to total support for some self-management activities. He needs these levels of support to undertake these activities, every day. He needs support to engage in the community and socially and receives significant core supports for that, and to support his employment. Here, I note Mr Stretton's views that Ryan requires support at a 1:2 ratio between 6am and 10pm when at home, and overnight inactive support (at a 1:3 ratio) from 10pm to 6am, every day. Mr Stretton also commented:

His cognitive impairment causes impaired judgment, safety awareness and decision-making abilities that are incongruent with being in the community alone.

He requires access to support at home quickly if required but does not require constant direct supervision.[57]

1. I am therefore satisfied that Ryan needs person-to-person support for a significant part of every day, and that he has very high support needs.
2. Turning to the considerations in Rule 13(b)(i) and (ii), the first provision requires consideration of the capacity of his informal support network. Mr and Mrs McLean provide the overwhelming bulk of the informal support that Ryan receives. As noted, the evidence is that Mr and Mrs McLean have loved, advocated and cared for their sons for the entirety of their lives, and I acknowledge this. They continue to prioritise their sons' needs, as they themselves age and experience their own health challenges. They provide various forms of support to Ryan and his brother most days, including overnight and daily support. They do so because of their love for their sons, but also to cover gaps in NDIS funded services.
3. I am not persuaded that Mr and Mrs McLean have capacity to do more, in the sense of providing person-to-person supports beyond their current levels, or to sustain this level of informal support, in reference to Rule 13(1)(b)(i). Relevantly, Mr Stretton observed of Mr and Mrs McLean:

As they age, their capacity to provide supports will decrease and it is sensible to facilitate a transition to independent living while they can still offer support rather than after this need arises urgently by necessity. It is also appropriate for [Ryan's] age and stage of life to reduce his reliance on his parents.[58]

1. I am therefore satisfied that Ryan satisfies the second limb of Rule 12(1), in that he has very high support needs, through having a very high need for person-to-person supports, either immediately available or constant, for a significant part of the day, and that there are limitations in and risks to the sustainability of his informal support network.

Does the Applicant meet the SDA needs requirement?

1. I turn now to consider the SDA needs requirement in Rule 14.
2. A participant can only meet the SDA needs requirement if all the applicable criteria in Rule 14 are met. The criteria require a comparison between the benefits of SDA, when coupled with other supports, against the benefit provided by other supports alone.[59]
3. The comparative nature of the exercise is fundamental and, on the state of the evidence in this review, presents a fundamental challenge for the Applicant. This is primarily so because of the very limited nature of the evidence as to other support options, not involving SDA, and how those options might compare, in terms of the considerations in 14(1)(a) to (e), with the SDA sought by the Applicant.
4. Some of the considerations in undertaking this comparative exercise are different, depending on whether the participant has an extreme functional impairment or very high support needs. An important example of this in the present context is the consideration of the 'value for money' requirement expressed in Rule 14(1)(e), which in context, requires that when compared with other supports alone, combined SDA and other supports would represent better value for money.
5. As I have found that Ryan has very high needs, in determining this 'value for money' consideration, I must have regard to the matters specified in Rule 14(2). These matters are:

(a) Whether combined SDA support and other supports would be likely to substantially improve the life stage outcomes for, and be of long-term benefit to, the participant. > > (b) The cost of providing the participant with supports needed to live in accommodation other than SDA, taking into account: > > > (i) whether those supports may be shared with other participants; and > > > > (ii) limitations of the participant's informal support network.

6. Ms Yule's assessment report opines that Ryan's SDA proposal would, in reference to the requirements of Rule 14(1)(a) to (e):
   • Be compatible with his goal of being able to transition from the family home (I note this wish is not expressed as a specific goal in Ryan's current NDIS plan) - 14(1)(a).
   • Would mitigate/alleviate the impact of Ryan's impairment upon his functional capacity, through Ryan having access to a safe and accessible living environment - 14(1)(b)(i).
   • Will prevent the deterioration of Ryan's functional capacity, through enabling Ryan to live in a dwelling 'that he is able to mobilise in' and 'complete daily tasks and minimise his risk/incidence of falls or injury'; participate in more functional activities and to access the community; and to take full responsibility for these tasks in his own dwelling - 14(1)(b)(ii).
   • Improve his functional capacity and maintain his ability to build capacity and develop skills, as above, and also through Ryan taking full rather than shared responsibility for his own dwelling, and to avoid conflict with his brother, resulting in Ryan's withdrawal behaviours - 14(1)(b)(iii), (iv) and (v).
   • Reduce his need for future supports (relevant as Ryan has very high support needs) through the provision of more appropriate accommodation. Ms Yule noted that Ryan will continue to need 24 hour supports and appropriate accommodation will facilitate his ongoing development of independent living skills - 14(1)(c)(i).
   • Represent value for money, in that Ryan requires an environment that is safe and has efficient access across all living spaces and, if provided with SDA in close proximity to his brother and parent's home, could continue to share formal and informal supports - Rule 14(1)(e).[60]
7. For completeness, I note Ms Yule also addressed Rule 14(1)(d) on the basis of her view that Ryan has an extreme functional impairment. I did not find this.
8. The report is framed in a way that it expresses Ms Yule's opinions, but not through the framework of comparative consideration of the SDA proposal with alternate supports alone. Additionally, much of the above commentary does not reflect, to my mind, why SDA, rather than any other form of accommodation, is necessary for Ryan. The references to Ryan requiring accessible accommodation, in terms of his mobility, are misplaced. I note these issues are of application to Brett, who has mobility impairments. Ryan does not. Similarly, the references to being in proximity to his brother to share supports does not in itself import any need for SDA. Nor does the assertion that Ryan will better be able to participate in community access or to take responsibility for his own dwelling.
9. Unsurprisingly, when giving evidence Ms Yule was taken to her rationale as to why SDA was needed for Ryan. She stated that it was 'around his cognitive impairment' and the 'improved liveability of SDA' for Ryan:

It can give them visual cues to be able to be able to engage and again, increase that contribution and increase the percentage of his contribution with some of those functional tasks throughout a typical day.

And it's those visual cues that that are part of the minimum standard and minimum design standard features within an improved liveability SDA dwelling that I felt would be the effective or beneficial component for Ryan.

I didn't feel that he required the larger footprint for the accessible bathroom that I had recommended for Brett, for example. I didn't feel that that was that was necessary for Ryan, but it was it was mostly around those cognitive sensory features.

1. Ms Yule also addressed Ryan's sensory needs, and particularly his sensitivity to noise:

So, within an improved liveability dwelling, they generally are able to sort of mitigate some of those impacts of people's sensory processing difficulties as well.

... the visual contrast as well within an improved liveability dwelling can also help with, just that visual orientation of their environment, and really trying to get people engaging with actual tasks within their home.

1. When asked by Counsel for the Agency '[b]ut in terms of the bricks and mortar, the house that he's currently living in, is there anything that you suggest is inappropriate in that house that you think is problematic for him?', Ms Yule replied:

Look, I think that the, the size of the dwelling is problematic in terms of the maintenance that would be required and the support that he would be required to undertake in the size of the dwelling that he lives in.

So being a single individual living in a smaller dwelling that was easier to maintain, that had better wayfinding ... the SDA would be definitely more beneficial because it would be more achievable for him to be able to engage in, in managing that home better.

The current environment is, would be near impossible to have a goal of him being able to take full responsibility or shared responsibility for that.

1. Ms Yule was also asked, in terms of the assessment that she performed, whether she performed any assessment of other options outside of SDA with additional supports. She advised that she did not.
2. In its updated SFIC the Agency made the following submissions about the SDA needs requirement (footnotes omitted unless noted):

Effectively, consideration needs to be given towards why the Applicant needs specialist disability accommodation, as opposed to accommodation generally.

The explanatory statement to the SDA Rules makes plain that "SDA refers to accommodation for people who require specialist housing solutions, including to assist with the delivery of supports that cater for their extreme functional impairment or very high support needs. SDA does not refer to the support services, but the homes in which these services are delivered. SDA may, for example, have specialist designs for people with very high needs or a location or features that make it feasible to provide complex or costly supports for independent living."

It is contended that there is no evidence that establishes that the Applicant requires an SDA design dwelling, as opposed to any dwelling, with the appropriate care worker assistance.

Ms Yule notes that the provision of SDA will support the Applicant's goal of establishing his own home environment. This does not grapple with why SDA is required to achieve that goal, as opposed to a standard home.

Finally, in addressing the value for money requirement, Ms Yule notes that if the Applicant was provided with SDA in close proximity to his brother and his parent's current home, the Applicant will be able to continue to receive some informal supports from his parents (as their availability allows) and continue to share his formal supports with his brother as is currently the case. This, respectfully, does not address the value for money requirement at all.

It is thus contended that the Applicant does not need SDA, he simply needs a standard home, albeit with support worker assistance. It follows that the provision of SDA is not going to better assist the Applicant's goals of living independently, when compared with other supports alone. Further, it is contended that the provision of SDA is not likely to be more effective or beneficial, than any standard home, with the existing supports available.

Further, under rules 14(1)(e), the provision of funding for SDA must represent better value for money, when compared to other supports alone. If the Applicant has a very high support need, the Tribunal is to have regard to whether combined SDA support and other supports would be likely to substantially improve the life stage outcomes for, and be of long-term benefit to, the participant and to consider the alternative cost of providing necessary supports outside of SDA. This necessarily invites a cost comparison between life with and without SDA.[61]

The evidence establishes that the family home is suitable, to meet his needs. Further, the Applicant has not put on any evidence of whether there are other suitable housing options for him, should the Applicant's parents want to return to the family home.

It is contended that, until those options are explored and, if feasible, the costs of those options are compared to the cost of the provision of SDA, the Tribunal cannot be satisfied that the provision of SDA represents better value for money than the provision of other supports alone.[62]

1. To my mind, these submissions have considerable merit, having regard to the state of the evidence in this review. I am of the view that many of the assertions made by Ms Yule in her report regarding the requirements of Rule 14(1) lack weight, for the reasons I have already noted, and as per the observations made in the above submissions of the Agency. While Ms Yule expanded on her reasoning in giving evidence this was not persuasive, in my view, as to demonstrating through the comparative exercise that Rule 14 requires, why SDA combined with other supports, compared to other support options alone, would meet the criteria in Rule 14(1).
2. I also note Mr Stretton's view that 'SDA is not required for [Ryan] as he does not require specialised housing', and that SDA will not reduce Ryan's future support needs, as per Rule 14(1)(c)(i), as he 'has substantial and permanent impairments and will require in person supports for the rest of his life. SDA will not reduce or eliminate the need for these supports.'[63]
3. The difficulties Ryan's case faces are illustrated by the state of the evidence regarding the requirement in Rule 14(1)(c)(i). These difficulties are not restricted to that provision alone, however.
4. In the Tribunal decision in Charrington, Senior Member Buxton noted that the requirement in Rule 14(2) to consider the cost of providing alternative supports to enable the participant to live in accommodation other than SDA 'necessarily invites a cost comparison between life with SDA and life without.'[64]
5. It was a significant point of contention throughout the hearing that the Applicant has not provided sufficient evidence to properly inform the comparative exercise that the Tribunal needs to undertake regarding Rule 14, including in relation to the value for money requirement in light of the mandatory considerations in 14(2).
6. In a response to the Agency's initial SFIC, Mr McLean addressed similar contentions made in the Agency's previous SFIC. His response included submissions that:
   • The foreseeable efficiencies of combined SDA and other supports, including the prescriptions of the SDA Design Standard which support efficiencies in delivering supports for SDA eligible participants assist a conclusion that the combination of SDA and other supports would result in a lower overall scheme cost than supports needed to live in accommodation other than SDA.
   • There was lived experience and research data supporting this contention (although such evidence was not identified in this submission).
   • In reliance on the Tribunal decision in Mazy and National Disability Insurance Agency (2018) 168 ALD 517 (Mazy), if the Agency was contending that comparably suitable accommodation is likely to be available for the Applicant which would result in a lower scheme cost when compared to the combination of SDA and other supports, it was incumbent on the Agency to assist the Tribunal by providing evidence to support its argument.
   • There were no comparable supports to SDA which would achieve the same outcome as SDA for Ryan, which compelled a conclusion that SDA is value for money for him.
   • There are no likely available suitable alternate housing options comparable to SDA for Ryan.[65]
7. In closing submissions Counsel for the Applicant contended that provision of SDA as a support for Ryan would represent value for money in respect of the actual benefit achieved. Further, that consideration of the value for money requirement should not devolve to asking what the cheapest option is. Additionally, it was contended that while an alternative option of a continuation of Ryan's current living arrangements in a more suitable home had been explored with some witnesses, this was an inappropriate and underfunded option.
8. Counsel for the Agency, in his closing submissions, referred to the decision in Charrington as providing guidance for the value for money considerations here. Further, Counsel distinguished the decision in Mazy, on the basis that it related to the general value for money consideration for supports as provided for in section 34(1)(c) of the NDIS Act, and here the SDA Rules specifically imported a need to consider the costs of providing the participant with supports needed to live in accommodation other than SDA.
9. I do not find the submissions made on behalf of the Applicant to be persuasive.
10. Dealing first with the submissions regarding Mazy, I accept the Agency's contentions that it is distinguishable on the basis outlined above. Additionally, I note that in Mazy the Applicant had produced some evidence of relative value for money and the unsuitability of possible alternate options (which the Tribunal found to be persuasive), in support of her claim for the particular support in issue.[66]
11. The task required by Rule 14, as noted, is one of comparative analysis as to the effectiveness and benefits of SDA and other supports, compared to other supports alone. The various component requirements in Rule 14(1) require consideration of whether the proposed option will 'better assist', or 'be more effective and beneficial'. Such an exercise cannot be satisfied by opinion and/or other evidence alone, or submissions unsupported by reference to probative evidence, that SDA will be effective and beneficial or better assist the participant. More is required to inform a view about the SDA needs requirements. As was said in Charrington:

... the threshold created by the 'needs requirement' is demonstrably high and cannot be met by evidence of benefit or preference alone.[67]

1. I acknowledge that there was some analysis of the SDA needs requirements and alternate living options contained with two supporting consultants' reports that had been filed with the T-Documents.[68] The authors of these reports did not give evidence, and it was acknowledged by Counsel for the Applicant that these were not expert reports and, in terms of evidentiary weight, did not rise above the status of submissions. As such, I have considered these reports but do not attach particular weight to them.
2. I am persuaded by the Agency's submissions. Whether Ryan meets the requirement in Rule 14(1)(e) was a significant point of contention in the review, and illustrates, in my view, the challenges facing the Applicant on the evidence before the Tribunal. There is an insufficiency of evidence whether there are other suitable housing options for Ryan, outside of SDA and including suitable and accessible modified standard homes, 'to demonstrate what the cost comparison might be, or how this might impact on 'value' to be achieved in the funding of the Applicant's supports.' [69]
3. In submitting that SDA is necessary for Ryan, Ms Yule proposed that given Ryan's wish to remain living close to his brother, but not directly with him, and their shared need for some supports and onsite supervision, the provision of SDA duplex accommodation near his parent's home would be suitable.
4. I accept that the brothers do not wish to remain together in the family home. I also accept the evidence given by Mr and Mrs McLean about their exploration of some alternate living options that might, for example, enable them to live in aged care close to their sons at some future time. However, it remains that there is insufficient evidence before me to inform the comparative exercise required by Rule 14 and particularly the cost consideration required by Rule 14(2)(b), between the provision of SDA and the provision of other supports alone, such as a suitable standard dwelling of the type that Ryan desires.
5. As such, I cannot be satisfied at this time that the provision of SDA represents better value for money than the provision of other supports, including supports needed to live in non-SDA accommodation.
6. As the requirements of Rule 14 are cumulative, it follows that I find that Ryan does not meet the SDA needs requirement. As such, I find that he is not eligible for SDA.
7. I make two further observations. First, I realise that Ryan, his brother Brett and Mr and Mrs McLean will be disappointed with this outcome as it will not result in the family's living preferences eventuating, at least through the NDIS, at this time. Their preferred living option, given the evidence about the circumstances of all family members, is completely understandable. However, as was noted in Charrington, the SDA needs requirement cannot be met by evidence of benefit or preference alone.
8. Secondly, at the conclusion of the hearing, Counsel for the Agency flagged a proposal that Ryan and Brett each be provided with a support, in the form of an additional 26 hours of occupational therapy hours, for the purpose of undertaking updated functional capacity assessments to explore whether SDA is presently required.
9. The Tribunal is unaware of whether this has been pursued, and as such, I will not make an order about this potential support and Ryan's SoPS; I raise the matter here to simply to note that such an outcome would seem to me to be entirely appropriate, given the evidence in the two reviews. As noted, the lengthy history of these matters, while to some extent unavoidable, has meant that the evidence in the reviews was mostly very dated by the time of the hearing. Such an updated assessment also presents an opportunity to address the evidentiary difficulties I have noted in relation to the SDA needs requirement and the comparative exercise that must be undertaken to determine eligibility for this support.

[1] National Disability Insurance Scheme, Operational Guideline - Specialist Disability Accommodation

[2] Hearing Bundle, Document R3, The Agency's Updated Statement of Facts, Issues and Contentions, 14 February 2025, pages 424-452, at [3] (the Agency's updated SFIC).

[3] Hearing Bundle, Document T13, NDIA Plan for the Applicant, 31 March 2022-29 March 2025, pages 225-239.

[4] The Agency's updated SFIC, Annexure B - Participant's plan breakdown, pages 453-454.

[5] Hearing Bundle, Document T13, NDIA Plan for the Applicant, page 233. This section as contained in the plan is reproduced here in its unedited form.

[6] The Agency's updated SFIC, Annexure B - Participant's plan breakdown, pages 451-452.

[7] Hearing Bundle, Document T9, Internal Review Request, 22 June 2022, pages 190-194.

[8] Hearing Bundle, Document T8, Supporting Evidence Form - Home and Living, 22 June 2022, pages 171-189.

[9] Hearing Bundle, Document T1A, Internal Review Decision, 18 August 2025, pages 10-14.

[10] Section 99 of the National Disability Insurance Scheme Act 2013 (Cth), Item 4, designates this decision as a reviewable decision.

[11] Hearing Bundle, Document T1, Application for Review of Decision, 16 November 2022, pages 4-9.

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

[13] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, [78].

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

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

[16] Shi, 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 updated SFIC, Annexure A, [10]-[20].

[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] National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020, (the SDA Rules), Rule 9.

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

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

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

[33] Allen and CEO, National Disability Insurance Agency [2025] ARTA 1359 (Allen and NDIA), [29].

[34] Hearing Bundle, Document A1, Occupational Therapy Assessment Report - Specialist Disability Accommodation, Ms Julie Yule, 7 October 2021, pages 319-346. (Ms Yule's report).

[37] Hearing Bundle, Document A2, Applicant's Response to the Agency's Statement of Facts, Issues and Contentions of 18 January 2024, 28 February 2025, pages 346-360, at page 347.

[38] Counsel for the Agency's submissions, 20 May 2025 and 22 May 2025, Agency's updated SFIC, [12]-[22].

[39] Hearing Bundle, Document R1, Occupational Therapy Assessment Report, Mr Gary Stretton, 15 January 2024, pages 389-410 (Mr Stretton's report).

[42] Allen and NDIA, [35], [39]-[40].

[43] Agency's updated SFIC, [15], citing Charrington and NDIA [2022] AATA 1160, at [60], and Counsel for the Agency's submissions, 22 May 2025.

[44] Counsel for the Applicant's submissions, 22 May 2022.

[49] Excerpts from the Manual for these instruments were provided as a result of a request the Tribunal made during the hearing.

[52] Mr Stretton's report, pages 405-406.

[55] The Guidelines continue, to address the circumstances of participants with behaviours of concern - this part has not been reproduced here.

[56] Counsel for the Agency's closing submissions, 22 May 2025.

[59] Winn and National Disability Insurance Agency [2024] AATA 3034, at [87], and the framework from Allen and NDIA, as noted.

[60] Ms Yule's assessment report, pages 293-295.

[61] Here, Charrington at [54] was cited, as addressed below.

[62] The Agency's updated SFIC, [29]-[36].

[63] Mr Stretton's report, pages 404-405.

[65] Applicant's response to the Agency's SFIC, pages 358-359.

[66] Mazy and National Disability Insurance Agency (2018) 168 ALD 517, at [52], [53] and [58].

[68] See Hearing Bundle, Document T3, Submission of SDA Services, pages 33-70, and Document T5, Report of SDA Services, 27 February 2022, pages 98-165.