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.[75]

1. 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 the 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 Brett, 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 Brett.
2. In closing submissions Counsel for the Applicant contended that provision of SDA as a support for Brett 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 Brett's current living arrangements in a more suitable home had been explored with some witnesses, this was an inappropriate and underfunded option.
3. 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.
4. I do not find the submissions made on behalf of the Applicant to be persuasive.
5. 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.[76]
6. 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.[77]

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.[78] 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 Brett 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 Brett, 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.' [79]
3. In submitting that SDA is necessary for Brett, Ms Yule proposed that given Brett'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. Further, Ms Yule identified some specific concerns with Brett's current accommodation. They included:
   • It is not wheelchair accessible.
   • The presence of some steps, including into the shower recess, and the need for improved accessibility.[80]
4. I accept that these features, particularly the second, are sub-optimal although, as noted, the evidence as to Brett's functional mobility does not reflect that he uses a wheelchair in the home or requires such assistance at this time. I accept that an assessment of value for money can appropriately consider likely future support needs arising as a consequence of the participant's disability,[81] and I note Rule 14(2)(a) imports a requirement to consider life stage outcomes and long-term benefits for the participant. Nevertheless, it remains that there is little evidence, particularly medical evidence, to properly inform considerations of Brett's future needs in this context.
5. Further, the following remarks from Allen and NDIA are apposite:

These are all features of a domestic dwelling that are capable of modification. Home modifications to remove these sup-optimal accessibility features would have each of the beneficial effects specified in Rule 14(1)(b). It is not suggested in the evidence that home modifications of this kind cannot be carried out in the Applicant's home for any technical reason. The provision of support for SDA is not necessary to address these sub-optimal design features.

Although I do not have evidence of the costs of such home modifications before me, as a matter of general principle and common sense, the cost of relatively minor home modifications of this kind would represent better value for money that the high recurring cost of support for SDA.[82]

1. 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 and accessible standard dwelling of the type that Brett desires.
2. 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.
3. As the requirements of Rule 14 are cumulative, it follows that I find that Brett does not meet the SDA needs requirement. As such, I find that he is not eligible for SDA.
4. I make three further observations. First, I realise that Brett, his brother Ryan and Mr and Mrs McLean will be disappointed 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.
5. Secondly, at the conclusion of the hearing, Counsel for the Agency flagged a proposal that Brett and Ryan 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.
6. The Tribunal is unaware of whether this has been pursued and as such I will not make an order about this potential support and Brett'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. An updated assessment is particularly important for Brett, given the lack of the evidence in his review about the recent decline in his health and the longer-term impacts for him. 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.
7. Thirdly, the evidence of Mr and Mrs McLean reflects that Brett's SoPS, in so far as his core supports were calculated, was developed with assumptions about the time he would spend in supported employment. Their evidence was that with Brett spending less days in supported employment due to health issues, they have needed to cover some of the additional hours of support that Brett requires, given his current funding levels, and that this has not been without significant challenge. This was noted by the Agency's representatives during the hearing, and I raise it here again to ensure that it is considered in the future planning for Brett.

[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 496-526, at [3] (the Agency's updated SFIC).

[3] Hearing Bundle, Document T13, NDIA Plan for the Applicant, 5 April 2022-3 April 2025, pages 323-338.

[4] The Agency's updated SFIC, Annexure B - Participant's plan breakdown, pages 525-526.

[5] Hearing Bundle, Document T13, NDIA Plan for the Applicant, page 328. This section as contained in the plan included some minor and obvious errors, which have not been reproduced here.

[6] The Agency's updated SFIC, Annexure B - Participant's plan breakdown, pages 525-526.

[7] Hearing Bundle, Document T8, Request for Review of a Decision, 22 June 2022, pages 254-258.

[8] Hearing Bundle, Document T9, Supporting Evidence Form - Home and Living, 22 June 2022, pages 259-277.

[9] Hearing Bundle, Document T1A, Internal Review Decision, 17 September 2025, pages 9-13.

[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, 14 September 2022, pages 4-9.

[12] Hearing Bundle, Document A3, Letter from Dr Fogarty (Cardiologist), 23 March 2024, page 441.

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

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

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

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

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

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

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

[20] The Agency addressed these matters in its updated SFIC, Annexure A [10]-[20].

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

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

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

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

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

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

[28] [2017] FCA 308.

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

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

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

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

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

[35] Counsel for the Applicant's submissions, 20 May 2025 and 22 May 2025.

[36] Hearing Bundle, Document A1, Applicant's Response to the Agency's Statement of Facts, Issues and Contentions of 18 January 2024, pages 415-429, at page 416.

[37] Counsel for the Agency's submissions, 20 May 2025 and 22 May 2025, Agency's updated SFIC, [13]-[26].

[38] Hearing Bundle, Document T11, Occupational Therapy Assessment Report - Specialist Disability Accommodation, Ms Julie Yule, 29 September 2021, pages 281-306 (Ms Yule's assessment report).

[39] Hearing Bundle, Document A5, Supplementary Occupational Therapy Report, Ms Julie Yule, 24 April 2023, pages 446-457 (Ms Yule's supplementary report).

[40] Ms Yules' assessment report, page 284.

[43] Ms Yule's supplementary report, pages 449-450; Ms Yules' evidence, 20 May 2025.

[44] Hearing Bundle, Update letter from Mr and Mrs McLean, filed 13 January 2025, page 458.

[45] Evidence of Mr and Mrs McLean, 20 May 2025.

[46] Ms Yule's assessment report, pages 292-293.

[48] Hearing Bundle, Document R1, Occupational Therapy Assessment Report, Mr Gary Stretton, 15 January 2024, pages 459-482 (Mr Stretton's report).

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

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

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

[55] Ms Yule's Assessment Report, pages 288-289.

[56] Ms Yule's Assessment Report, page 282.

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

[60] Evidence of Mr and Mrs McLean, 20 May 2025.

[61] Ms Yule's assessment report, pages 293-294.

[62] Mr Stretton's report, pages 468 and 477.

[63] Mr Stretton's evidence, 22 May 2025.

[64] Ms Yule's assessment report, page 301.

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

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

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

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

[72] Charrington and National Disability Insurance Agency [2022] AATA 1160, [54] (Charrington).

[74] There followed a reference to Ms Yule's supplementary report, at page 456.

[75] Agency's updated SFIC, [34]-[36].

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

[78] See Hearing Bundle, Document T5, Report of SDA Services 21 June 2021, and Document T6, Report of SDA Services, 30 January 2022.

[81] See CBYW and CEO, National Disability Insurance Agency [2025] ARTA 548, at [110]-[114].