1. On 15 June 2024 an NDIS plan and SoPS for Ms Merrett[2] was approved by a delegate of the Chief Executive Officer (the CEO) of the National Disability Insurance Agency (the Agency), pursuant to section 33(2) of the National Disability Insurance Scheme Act 2013 (Cth), (the NDIS Act). This plan was for the period from 15 June 2024 to 15 June 2026. Further details about this plan and the supports that it provides for Ms Merrett in its SoPS are set out below.
2. On 29 July 2024 Ms Merrett requested that the Agency undertake an internal review of its decision to approve the SoPS in this plan. The Agency's note recording that request noted specifically that Ms Merrett was dissatisfied with the decision not to include driving lessons in her SoPS.[3]
3. On 11 September 2024, a different delegate of the CEO decided to confirm the original decision, finding that the request for driving lessons did not satisfy the Agency's requirements for funding.[4]
4. After receiving that internal review decision (the decision under review), Ms Merrett remained dissatisfied with the decisions made by the Agency and on 18 September 2024 lodged an application for review with the former Administrative Appeals Tribunal (the AAT), pursuant to section 103 of the NDIS Act.[5]
5. Upon receiving notice of the application for review made to the Tribunal, the Agency filed with the AAT copies of documents relating to that application (the T-Documents), pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
6. 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.
7. While the review was proceeding through the Tribunal's pre-hearing processes, Ms Merrett put forward her claims regarding the additional supports requested, and these supports were included within the scope of her review. Ms Merrett also filed some materials and reports. These were:

(a) An occupational therapy driving assessor report, dated 1 June 2023,[6] (which I will refer to as 'Ms Slater's report'). > > (b) A report from another occupational therapist, Ms Ng, dated 10 April 2025 and answering targeted questions asked by the Agency.[7] > > (c) A neuropsychological assessment report, dated 1 September 2022.[8] > > (d) A letter from her General Practitioner, dated 9 December 2025.[9] > > (e) A letter from a driving trainer, dated 4 February 2026.[10] > > (f) Some quotes for meal delivery support,[11] the driving lessons,[12] and various E-scooters and E-bikes.[13]

8. The review hearing was held on 12 February 2026. The hearing was conducted by video (Microsoft Teams). At the hearing, the Tribunal had before it the T-Documents and other materials lodged by the parties during the review. These relevant evidentiary and other materials were collated in the form of a Joint Hearing Bundle (Hearing Bundle), prepared and filed by the Agency, which became Exhibit 1.
9. At the hearing Ms Merrett represented herself, with support from a disability advocate, Ms Mamantov. The Agency was represented by Ms Banda of Counsel, instructed by Sparke Helmore Lawyers. Officers of the NDIA also attended throughout the hearing.
10. Some further materials were provided by the Agency during and shortly after the hearing. These were an Agency claims spreadsheet (relating to payments made for Ms Merrett's supports), provided with an email from Sparke Helmore on 12 February 2026. This spreadsheet became Exhibit 2. Following on from issues addressed at the hearing, Sparke Helmore also provided (on the same day as the hearing), a copy of an email from the Agency to Ms Merrett, dated 29 January 2025. This document was not separately admitted as an exhibit but was added to the hearing materials as a document relevant to the review, the Tribunal noting the Agency's continuing obligation to provide such materials, pursuant to the Administrative Review Tribunal Act 2024.[14]
11. At the hearing Ms Merrett gave oral evidence. She was the only witness to do so at the hearing. Opening and closing submissions were made by Ms Merrett, with assistance at times from Ms Mamantov, and also by Counsel for the Agency.

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.[16]

The Tribunal effectively 'stands in the shoes' of the maker of the decision under review.[17] 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.[18] Also, the Tribunal may consider materials additional to those that were before the decision-maker.[19]

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 of and relevant to the matters required by the applicable statute. If an applicant seeking access to a benefit or interest under a legislative scheme does not provide evidence and information sufficient to meet the relevant statutory requirements (which here are the criteria in the NDIS Act relating to supports), they cannot succeed.[20]

1. Shortly after Ms Merrett's review application was filed with the Tribunal, but before the hearing, 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 effected by the amending Act to the NDIS planning provisions, including section 34, and to the definition of 'NDIS support' contained within section 10. These changes were effective from 3 October 2024.[21]
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 after that date, irrespective of whether the participant's plan came into effect before, or on or after commencement. This means that in this review the amended provisions are to be applied to any decision to approve or vary Ms Merrett's SoPs.
3. 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. The Transitional Rules are of particular application in this review.

1. The NDIS Act contains a statement of its objects, in section 3(1). They include some which are of particular relevance to decisions about whether requested supports are reasonable and necessary:
   • 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) 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, lengthy definitions of what is, and what is not, an 'NDIS support'. Section 10(1) provides that a support will be an NDIS support if it is declared by NDIS rules to be an NDIS support, either generally or for a class of, participants or prospective participants. Section 10(4) provides that NDIS rules can declare that supports are not NDIS supports.
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. 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. 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.[22]

1. Sections 33(2)(a) to (e) specify the matters that must be in the SoPS. These include the general supports (if any)[23] 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.
2. 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. If a decision-maker is not positively satisfied of all requirements, the claim for support must be rejected.[24]
2. Further, section 34(2) provides that the 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).
3. 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. Whether some of the supports requested by Ms Merrett are NDIS supports was an issue of contest in this review.
4. 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.[25]

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. [26]

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

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

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

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

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

209 The National Disability Insurance Scheme rules

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

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

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

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

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

These Rules are about assessment and determination of the reasonable and necessary supports that will be funded for participants under the NDIS.[27]

1. In the 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. In the case of McGarrigle, Mortimer J 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. 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,[29] 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 support 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. Additionally, the Transitional Rules and the Miscellaneous Transitional Rules are also now of application.
2. Here, I note that Rule 7 of the Miscellaneous Transitional Rules outlines, in paragraph (3), that if a SoPS in an old framework plan[30] is approved or varied, the CEO must be satisfied that the support is most appropriately funded or provided through the NDIS and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body.
3. The Agency has also issued some Operational Guidelines which are relevant to NDIS supports, including those guidelines entitled Creating Your Plan and Your Plan, and Reasonable and Necessary Supports. 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'. [31].
4. 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.[32] 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.[33]

1. It is helpful to note some of the information contained within Ms Merrett's NDIS plan, to place the supports requested by her in some context.
2. Ms Merrett's current plan commenced on 15 June 2024 and is for a period of two years. It includes sections containing information about Ms Merrett and her current supports. The plan notes that Ms Merrett lives by herself in a house in a suburb of a large Australian city. She has a strong love of animals and cares for a number of pets. Ms Merrett enjoys spending time in her garden and has previously studied horticulture. She has also completed a diploma in conservation studies. She would like to gain employment in one of those fields in the future.
3. Ms Merrett sees her family once or twice each year but does not receive regular support from them. She sees her General Practitioner regularly. Ms Merrett gave evidence that she currently receives the JobSeeker payment through Centrelink[34] and her plan lists community agencies and Centrelink as her other 'informal, community and mainstream supports.'
4. The plan also records Ms Merrett's goals, which are:

(a) 'I would like to have a therapy dog.' > > (b) 'I would like to be able to develop skills to drive a car.' > > (c) 'I would like to manage my anxiety and increase my emotional resilience to increase my community participation.' > > (d) 'I would like to develop my work ready skills to enhance my ability to gain employment or start my own business.'

5. For the second goal above, the plan outlined how Ms Merrett would 'work towards this goal', and provided as follows:
   • 'Have an on road occupational therapy assessment with an Accredited Driving Assessor to assess my driving capacity.
   • When completed I will request a review of my plan to determine whether the NDIS can assist me in funding the lessons.
   • Have support from Support Coordination to find driving instructors able to address my capacity.
   • Work towards obtaining my license.'

The plan also outlined Ms Merrett's participant supports. The details of those supports were provided in a plan 'break-down' section of the Agency's SFIC, which I will reference here:[35]

• Assistance with Daily Life - funding for house cleaning and other household activities (one hour per week) and house and yard maintenance (two hours per month).
• Social, Economic and Community Participation - funding for assistance with a support worker (1:1 ratio), to access the community - eight hours per week.
• Consumables - low-cost assistive technology.

• Increased social and community participation - assistance in coordinating or managing life stages, transitions and supports - 240 hours per year.
• Improved Daily Living - funding for occupational therapy and psychology - 20 hours (each) per year.
• Plan management fees (a registered plan manager assists to make claims and pay providers on Ms Merrett's behalf).
• Recurring transport costs.

1. At the beginning of the hearing, Ms Merrett explained that she was only seeking the requested supports of meal preparation and delivery, the Thermomix appliance and the tricycle, on the basis that she would need these supports if she was not supported in getting her driving lessons and her driver's licence. In giving evidence, Ms Merrett explained her difficult financial circumstances, stating that if she had her driving licence, she believed she would be able to work and pay for food herself.
2. I will now consider each of the requested supports.

1. I will set out below further details of the Agency's submissions about this requested support and the evidence it relies upon, but for present purposes and to facilitate understanding of the evidence given by Ms Merrett at the hearing, I will note here that the Agency's primary position was that it has already provided Ms Merrett with the requested 30 specialised driving lessons, under her current plan, following an agreement about this in 2025.

1. Some of the evidence provided by Ms Merrett regarding this requested support, such as Ms Slater's occupational therapy driving assessment report,[36] pre-dated 2025. However, that report, dated June 2023, provides some useful background information. Therein, it is noted that Ms Merrett:
   • Had held a driving Learner's Permit for 23 years, although at the time of the report had not driven for three to four years.
   • Reported having attempted to pass her driving test on seven occasions.
   • Has previously had lessons from driving instructors.
   • Was reliant upon her support workers to take her shopping when she needed to purchase larger items (for example, dog food), and to get to appointments. Alternatively, she would use public transport (bus or train) and uses an electric bike for local transport.
   • Was seeking to obtain her driver's licence so she would be able to drive herself to the shops (and not rely on her support workers) and to be able to drive to a place of employment (as she was looking for work) and to drive for work, if a role required that. Further, driving would allow her to visit her mother more readily.
2. Ms Slater conducted an 'off-road' assessment, concluding that Ms Merrett had a satisfactory knowledge of road law and had no physical or visual deficits affecting her ability to drive, although she could be 'distractable', but could return to the task at hand. Ms Slater recommended Ms Merrett proceed to an 'on-road' assessment, after undergoing a driving instruction program. Ms Slater suggested that:

Driving lessons by a suitably trained Driving Instructor, utilising a Driver Training plan, based on [Ms Merrett's] deficits, would assist to prepare her for an Occupational Therapy On-Road assessment.[37]

1. Ms Slater recommended '[u]p to 30 hours of driving instruction', at a cost of $150 per lesson:

Driving instruction prior to the On-Road assessment to assist [Ms Merrett] to develop strategies to better manage anxiety; to develop strategies to compensate for reduced working memory and recall; to offer her the opportunity to practice and develop sound driving habits with an instructor who understands disability.[38]

1. A quote from Ms Sarah Bruce dated 21 February 2025 for 'Specialist Driver Training' was in evidence.[39] This quote reflected Ms Slater's recommendation for 30 lessons at a cost of $150 per lesson.
2. Ms Bruce also provided a recent letter, dated 4 February 2026.[40] In that report, Ms Bruce explained that she is a specialist driver trainer and a qualified counsellor, who has been supporting Ms Merrett 'in dealing with her anxiety around driving and other personal issues.' Further, the letter stated:

We have been having regular sessions for more than a year now where sometimes we go for a drive, with me driving, not [Ms Merrett] predominantly. Looking back through my notes, I think [Ms Merrett] has driven four times, with these four drives not lasting more than ten minutes and myself taking over and driving her home to talk about it. Some sessions are just sitting in the car or in her lounge working through her phobia and general counselling sessions depending on how she presents at each session.[41]

1. Ms Bruce referred to the quote 'that was submitted a long time ago' and noted Ms Merrett 'has come such a long way in terms of her anxiety and now enjoys being in a car 90% of the time.'
2. In her oral submissions and in her evidence at the hearing, Ms Merrett maintained that Ms Bruce was her 'anxiety coach' and that she had done only 'two or three driving lessons' with her. Ms Merrett repeatedly refuted the Agency's contention that provision had already been made for 30 driving lessons with Ms Bruce.
3. Ms Merrett explained that she wanted to gain her driver's licence so that she could obtain employment. Ms Merrett also gave evidence that she had attempted and failed her driving test on seven occasions; the most recent would seem to have been around 2011. Ms Merrett attributed her inability to pass the driving tests to her anxiety; explaining how the incidence of trauma during her childhood had impacted upon her anxiety around driving and travelling in a vehicle.
4. However, of her sessions with Ms Bruce, Ms Merrett said at the hearing:

She's fixed me ... I just drive like everyone else.

1. Further, Ms Merrett stated that she was now ready to attempt another driving test, although she needed to undertake a 'hazard perception' online test and get a good result on that, before booking the driving test. She was aiming to undertake the driving test 'around Easter.' Ms Merrett also gave evidence that after obtaining her licence she might still continue with Ms Bruce, 'maybe once a fortnight', working on her anxiety and 'just keeping me calm in a car.'
2. When asked further about the lessons she had undertaken with Ms Bruce in 2025, Ms Merrett said that these 'should never be classified as lessons, they were anxiety support ... she's not a normal driving instructor.' In answering some further questions that I asked, Ms Merrett stated that the sessions with Ms Bruce took place in a car, usually with her sitting in the passenger seat, although at times she would be driving. Ms Merrett agreed that when she was driving Ms Bruce would give her guidance about aspects of her driving, such as watching her speed and using her indicators.

1. As noted above, the Agency contended that it had already provided funding to Ms Merrett for 30 specialised driving lessons, at a cost of $150 per lesson, as she had requested. On that basis, the Agency submitted that:

... this request is no longer in issue, and that the provision of further lessons are not reasonable and necessary and do not represent value for money as required by s34(1)(c) of the Act.[42]

1. In support of this position, the Agency provided two documents at the hearing. The first was Exhibit 2, being the Agency's claims spreadsheet (relating to payments made for Ms Merrett's supports), provided with an email from the Agency's lawyers, Sparke Helmore, on 12 February 2026.
2. This spreadsheet related to claims paid for Ms Merrett's supports, for the period from 15 June 2024 to 18 April 2025. It reflects that in the period from 25 July 2024 to 8 April 2025, 30 payments were made from Ms Merrett's plan budget for 'Improved Daily Living Skills', in the amount of $150 on 26 occasions, and $156 on another four occasions, being 30 payments in total. Each of these payments was made to a provider with an ABN that matched Ms Bruce's ABN.[43]
3. The second document provided by the Agency on the day of the hearing was an email dated 29 January 2025 from an officer of the Agency to Ms Merrett. At that time Ms Merrett's review was before the Tribunal, and the email referenced the some of the supports requested by Ms Merrett.
4. Further, it stated:

Thank you for your email and for confirming that you accept the Agency's offer for the specialised driving lessons.

1. This email included an email sent from Ms Merrett to the Agency officer earlier that same day. Ms Merrett's email begins with the following passage:

[T]hanks for the offer of 30 specialised driving lessons. I am happy to accept this offer.'

1. Ms Merrett's email makes two other references to 'driving lessons', with Ms Merrett stating they have been refused by the Agency 'up until now', and noting the Agency has 'taken 7 years to approve driving lessons.'
2. In closing submissions, Counsel for the Agency submitted that the effect of Ms Merrett's evidence at the hearing was that the issues she had previously experienced with driving 'have largely been fixed by the work that she's done with Ms Bruce,' and that Ms Merrett has developed the skills needed to be able to undertake a driving test.

1. The starting point in considering Ms Merrett's request to be provided with specialised driving lessons is to consider whether the requested support is an 'NDIS support', as defined by the legislative framework that I have set out above.
2. Section 10(1) of the NDIS Act provides that a support will be an NDIS support if it is declared by NDIS rules to be an NDIS support, and section 10(4) provides that the rules can declare that supports are not NDIS supports. Section 5(1) of the Transitional Rules sets out, as a general rule, that for the purposes of section 10(1) of the Act, a support listed in column 2 of an item in the table in clause 1 of Schedule 1 to those rules is an NDIS support unless otherwise provided. Further, section 5(2) of the Transitional Rules provides that generally, a support listed in column 2 of an item in clause 1 of the table of Schedule 2 to those rules is not an NDIS support, for any participant.
3. There was no issue in the review as to this requested support being an NDIS support. Item 30 in the Table to Schedule 1 in the Transitional Rules provides for 'specialised driver training', which is described as including 'supports that provide driver training with a specialised vehicle driving instructor.' The phrase 'specialised vehicle driving instructor' is defined in section 4 of the Transitional Rules as follows:

specialised vehicle driving instructor in relation to driver training means a person who:

(a) is registered or licensed as a driving instructor in the State or Territory in which

(b) has experience and training in providing driving instruction to people with disability.

1. The evidence indicates that Ms Bruce meets that definition (at least to the satisfaction of the Agency).
2. As such, I find the requested support to be an NDIS support for Ms Merrett.
3. Notwithstanding Ms Merrett's position at the hearing as to what funding had been provided by the Agency and how the lessons undertaken by her with Ms Bruce should properly be described, it is abundantly clear from the evidence I have set out above that the Agency had agreed, some time ago now, to provide Ms Merrett with the support she requested in the form of 30 specialised driving lessons and has paid for those 30 lessons, across the period from July 2024 to April 2025.
4. Aside from the email exchange between the Agency and Ms Merrett on 29 January 2025 reflecting the offer of the 30 driving lessons and their acceptance by Ms Merrett, the documentary evidence provided by the Agency evidencing the 30 payments to Ms Bruce is compelling. Further, Ms Bruce's letter refers to her undertaking 'regular sessions' with Ms Merrett. Ms Merrett's own evidence at the hearing confirms the provision of these lessons and the nature of them, as well as their apparent success in preparing her for undertaking another driving test.
5. On the basis of the evidence that I have set out above, I accept the Agency's contention that it has already provided Ms Merrett with the requested support, and I make that finding.
6. There is no evidence to establish that beyond the 30 specialised driving lessons already funded by the Agency, further funding in the form of additional driving lessons is a reasonable and necessary support for Ms Merrett and should now be provided in her SoPS. Ms Merrett's evidence was that the sessions with Ms Bruce have 'fixed me'; and she noted her readiness and intention to undertake another driving test in the weeks following the hearing. She agreed that after doing the test she would not be needing more driving lessons. While Ms Merrett gave evidence that Ms Bruce had pointed out that they could do more sessions together in the future, Ms Merrett's evidence reflected that any such sessions would be more around Ms Bruce providing support to Ms Merrett for her anxiety. Ms Merrett agreed with suggestions from Counsel for the Agency that this was 'a completely different sort of support' to the specialised driving lessons, and that what was envisioned was 'support for something else, which is a support worker sort of person to go with you on those long drives.'
7. I accept the Agency's submission that further specialised driving lessons are not reasonable and necessary and, more specifically, would not represent value for money pursuant to the criterion in section 34(1)(c) of the NDIS Act. Given Ms Merrett's evidence, as noted above, I am also not satisfied that the criterion in section 34(1)(d) is met, as to additional lessons being 'effective and beneficial' for Ms Merrett.
8. For these reasons, I find that the support requested by Ms Merrett, in the form of 30 specialised driving lessons, has already been provided to her through her plan. I further find that any additional specialised driving lessons, at this time, are not a reasonable and necessary support for Ms Merrett.
9. Before leaving the discussion of this requested support, I will make the following comments.
10. First, it is apparent from the evidence given and the submissions made by Ms Merrett at the hearing that she was unclear, and perhaps confused to some extent, as to what support had been agreed to and provided by the Agency to support her goal of developing her driving skills.
11. In this regard, the Agency's administrative processes did little to assist Ms Merrett's understanding on this point. As I have noted, it is clear that in instigating an internal review by the Agency of its initial decision to approve the SoPs in her current plan, Ms Merrett wanted to pursue support for driving lessons and to have that included in her plan.[44] After Ms Merrett sought review by the Tribunal of the Agency's decision under review, agreement was arrived at in January 2025 to fund this requested support, as reflected in the parties' emails of 29 January 2025.
12. However, despite this agreement, the evidence provided by the Agency in this review establishes that the only documentation prepared by the Agency to reflect this variation of Ms Merrett's SoPS and plan, was that email of 29 January 2025.
13. Secondly, neither that email, nor the supporting evidence in the form of Exhibit 2, being the claims payment details, were produced during this proceeding until the time of the hearing. Indeed, the email of 29 January 2025 was produced after I specifically inquired of the Agency, following opening submissions at the hearing, what documentation existed to reflect this variation and to support the payments that had been made to Ms Bruce, and/or had been conveyed to Ms Merrett to make the position clear to her.
14. The timing of the provision of these materials necessarily limited the opportunities for both Ms Merrett and the Tribunal to understand the factual basis underpinning the Agency's contention as to the provision of this requested support. Certainly, Ms Merrett remained of the view, at the time of the hearing, that this support had not been resolved to her satisfaction and contended that the Agency had produced no evidence that the lessons had been provided to her.
15. Clearer and more timely action by the Agency on these matters may have assisted Ms Merrett to better understand the Agency's position, and consequently the Tribunal in arriving at the correct or preferable decision in relation to this support.

Meal preparation and delivery, and Assistive Technology - the Thermomix kitchen appliance

1. I will deal with these two requested supports together, as some of the relevant evidence is common to both.

1. Ms Merrett gave evidence that the oven in her rental home was broken. She also recounted her attempts, unsuccessful to date, to have her landlord address and remedy this longstanding problem; Ms Merrett noting that it has been an issue for over a year.
2. Due to her oven not working, Ms Merrett has been unable to use it to prepare meals. She had used it for cooking meals before it broke. Ms Merrett explained that she has been restricted to cooking on her stove top, and using her slow cooker appliance, to prepare meals. Ms Merrett gave some examples of the meals she prepares using these means. She also stated that she would like the NDIS to fund a Thermomix so that so she could use that appliance to make meals.
3. In providing context for the requested support for meal preparation and delivery, Ms Merrett explained that due to her difficult financial position she was unable to purchase enough food:

You've got to remember I don't have any money, so the food I'm getting is really limited.

1. Ms Merrett gave evidence that after paying her rent she has $120 of her Centrelink payment left each fortnight.
2. Ms Merrett explained that she had been informed that the NDIS funded Lite n' Easy[45] meals, and also Thermomix appliances. She provided a quote for meal delivery support from a supplier.[46]
3. Ms Ng is Ms Merrett's occupational therapist. She provided answers to some targeted questions asked of her by the Agency. In her report, Ms Ng stated the following, in answering a question from the Agency as to why, in Ms Ng's opinion, Ms Merrett required the support of meal preparation and delivery:

Simone reported that she previously relied on purchasing premade meals, which she reheated using the oven. However, she noted that the oven is now worn out and has become burnt, making it unsuitable and unsafe for continued use. In addition, the kitchen ceiling is flaking, and despite her concerns, the real estate agent has declined to carry out repairs. This has contributed to Simone feeling unsafe and anxious about using the kitchen space.

She shared that although the stove remains functional, she has experienced frequent incidents of burning herself or overcooking food, which has led to frustration and ultimately giving up on using it altogether. Simone also highlighted ongoing financial hardship - paying $800 of her fortnightly income toward rent, leaving her with only $200 for all other expenses. As a result, she often cannot afford sufficient groceries and typically consumes only one meal per day.

In the Occupational Therapist's opinion, Simone's avoidance of the kitchen is likely exacerbated by her anxiety, leading to hesitation around meal preparation. According to her treating psychologist, Simone's intellectual ability is below average, which is likely contributing to reduced executive functioning and organisation skills - further impacting her capacity to manage cooking tasks effectively.

While Simone awaits further Occupational Therapy support to build her capacity through tailored strategies and education in meal preparation, it is recommended that meal delivery services be arranged as a temporary and immediate support. This will help ensure Simone receives adequate nutrition while longer-term interventions are implemented.[47]

1. Ms Ng was also asked by the Agency to explain how a Thermomix appliance would benefit Ms Merrett; in what ways was it 'reasonably necessary'; how Ms Merrett would utilise it, and how this requested support was related to Ms Merrett's disability. Ms Ng advised:

The Thermomix is a multifunctional kitchen appliance that can provide substantial support to Simone in completing meal preparation tasks, particularly given her cognitive and emotional challenges. This device combines a range of functions - including chopping, peeling, stirring, frying, blending, mixing, and steaming - into one compact and easy-to-use system.

One of the most beneficial features for Simone is the interactive display screen, which provides step-by-step digital recipes and instant instructions. This guided cooking feature allows Simone to follow clear, simple prompts at her own pace, significantly reducing the cognitive load typically required for meal preparation. It eliminates the need for multitasking across different appliances or interpreting complex instructions, which is particularly valuable given Simone's below-average intellectual capacity and known difficulties with executive functioning, sequencing, and learning new tasks.

Furthermore, the Thermomix offers a safer cooking alternative for individuals with anxiety or safety concerns. Simone has reported a fear of using her kitchen stove due to previous incidents of burning herself or overcooking food, which causes her significant distress and leads her to avoid cooking altogether. The Thermomix's automated temperature control, enclosed design, and minimal manual handling help to reduce the risk of burns or other injuries, promoting a greater sense of safety and confidence in the kitchen.

In the Occupational Therapist's opinion, the Thermomix presents a relevant and effective assistive technology solution that can:

• Provide visual and guided support for task completion

• Build Simone's confidence and independence in the kitchen

• Support her nutritional wellbeing by encouraging regular, balanced meals

Overall, the Thermomix addresses both functional limitations and psychological barriers to cooking, making it a highly suitable tool to enhance Simone's capacity in daily living activities.[48]

1. Further, Ms Ng stated that there is no other item of assistive technology currently identified that would provide the same level of support or prove to be more cost-effective than a Thermomix.
2. The following exchange took place during Ms Merrett's cross-examination by Counsel for the Agency:

Question: So, the problem really is not your ability to prepare meals, in the sense that you physically can, if you had an oven?

Answer: Yeah, but I don't have food either to prepare ... so even if I got the Thermomix, what am I going to put in the Thermomix?

Question: So, Ms Merrett, are you saying the issue is just not enough food?

Answer: Yeah, and that's where the Lite n' Easy meals come into it, like instead of the Thermomix, we could get the Lite n' Easy meals. It's not like I wanted all, I didn't, it was either or, and that's like the licence; if I was supported to get the licence, I wouldn't need the Thermomix or the Lite n' Easy meals because I would be working.

1. Ms Merrett agreed that she is physically able to cook, save for her current inability to use the oven due to its non-functional state. She further agreed that if she had money to buy food, she would not need assistance in the form of meal preparation, as she could do that herself.

1. The Agency submitted in its SFIC that the provision of food is a day-to-day living expense, and the requested support of meal preparation and delivery would not be an NDIS support for Ms Merrett.
2. Further, the Agency submitted that:

(a) The provision of groceries is a support unrelated to Ms Merrett's psychosocial impairments and does not satisfy section 34(1(aa) of the Act. > > (b) Rule 5.1(d) of the Support Rules is of application, providing that a support will not be funded by the Agency if: > > (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. > > (c) Groceries are referred to in the Transitional Rules and noted as a support that is not generally an NDIS support under Schedule 2, Item 3, which refers to 'day-to-day living costs - lifestyle' as including '(a) groceries including all food, beverage, cleaning, household and health products.' > > (d) Ms Merrett has indicated that her main issue is the affordability of food: > > This is not the responsibility of the NDIS and the provision of food is generally an everyday expense and not related to disability. > > (e) Additionally, the difficulties experienced by Ms Merrett with food preparation due to her broken oven do not arise from her disability, and the requested support should not be funded under rule 5.1(b) of the Support Rules, as it does not relate to Ms Merrett's psychosocial impairments. > > (f) Ms Merrett's request for funding for a Thermomix appliance, which is an everyday kitchen appliance, is clear evidence that she has the ability to cook.[49]

3. For the requested support of a Thermomix appliance, the Agency contended in its SAFIC that:

(a) This support is not reasonable and necessary and does not satisfy the section 34 criteria. > > (b) More specifically, section 34(1)(aa) is not met as the requested support is not one that is needed to meet Ms Merrett's psychosocial impairments. > > (c) A Thermomix is a widely and commercially available appliance and is not disability specific equipment. As such, it is an everyday appliance and is not an NDIS support under Schedule 2 of the Transitional Rules, Item 1, which provides for 'day-to-day living costs - accommodation and household' as including '(i) standard household (including garden) items, appliances, tools and products.' [50]

1. In closing submissions, Ms Merrett's support advocate, Ms Mamantov, contended that Ms Merrett not having meals was directly related to her disability and psychosocial impairments, in that her anxiety and distress was increased by being unable to eat appropriately, and having nutritional meals provided by the NDIS would support her mental health needs.

1. Again, the starting point in considering Ms Merrett's requests to be provided with supports in the form of meal preparation and delivery and a Thermomix appliance, is to consider whether the requested supports are 'NDIS supports'. If the requested supports are not NDIS supports, they cannot be approved for inclusion in Ms Merrett's SoPS, by operation of section 34(1)(f).
2. The first stage of this inquiry is to determine if the requested support is of a character that falls within the scope of a category of support specified in column 1 of the table to Schedule 2 of the Transitional Rules, by reference to the description of supports that fall within the scope of that category contained in column 2 of the table.[51]
3. Here, the Agency asserts that for Ms Merrett, neither the meal preparation and delivery, nor the Thermomix appliance, are NDIS supports. This is because both requested supports fall within the scope of supports specified and described in the table to Schedule 2, as follows:

4. Supports that generally are not NDIS supports

The following table sets out supports that are not NDIS supports for:

(a) a participant (unless a replacement support determination covering the support is in force for the participant); or

Supports that generally are not NDIS supports

Day-to-day living costs - accommodation and household

(i) standard household (including garden) items, appliances, tools and products;

(a) groceries including all food, beverage, cleaning, household and health products;

1. The interpretation and application of Schedule 2 in the Transitional Rules have been considered in the recent Tribunal Guidance Decision of Chief Executive Officer, National Disability Insurance Agency and Hyde (Guidance and Appeals Panel) [2025] ARTA 2597 (Hyde).
2. In Hyde, Deputy President Dordevic of the Tribunal found that Schedule 2 must be read strictly and narrowly, because it is concerned with the exclusion of supports,[52] and that any supports that meet the descriptors in column 2 are not NDIS supports for any participant, as Rule 5.2 of the Transitional Rules contains no requirement that links the requested support to a participant's disability support needs.[53]
3. Further, Deputy President Dordevic noted the approach taken in the decision of NZGW and CEO, National Disability Insurance Agency [2024] ARTA 1035, where the Tribunal concluded that determining whether or not a support is an NDIS support does not permit consideration of the (other) reasonable and necessary criteria in section 34(1) of the NDIS Act and the associated evidence.[54] Deputy President Dordevic concluded:

Schedule 2 does not direct the decision-maker to consider the circumstances or needs of the participant. This is because Schedule 2 is concerned with the character of a support and not with a specific participant.

It follows that it is not necessary to consider the impairments or circumstances of an individual participant when determining whether a support is excluded by operation of Schedule 2. Such considerations are properly addressed in section 34(1)(aa) to (e) of the Act and are not relevant to section 34(1)(f).[55]

1. Implicit in Ms Merrett's case for these two requested supports is the contention that they should properly be regarded as NDIS supports for her. Ms Merrett observed that both requested supports were provided by the NDIS, to other participants. That of course is not determinative whether these supports are either NDIS supports or reasonable and necessary for Ms Merrett, but it is reflective that in an appropriate case such supports might be considered not to fall within the table of Schedule 2, but are of a character capable of falling within the scope of a category of support defined in the table to Schedule 1. As was explained in the Tribunal decision of FWSN and National Disability Insurance Agency [2025] ARTA 114 (FWSN):

It is important to observe that in the scheme of the Transitional Rules it is not sufficient to find that a support is not excluded as a NDIS Support by operation Schedule 2. It must also be found to be included as a NDIS Support by Schedule 1. That is, both Schedules have work to do in determining what is not a NDIS Support.[56]

1. Unsurprisingly, Ms Merrett did not frame her contentions about these requested supports in the context or language of the Transitional Rules. However, it would seem that the items of potential relevance to the requested supports, within the table to Schedule 1, are as follows:
   1. Supports that are NDIS supports unless otherwise provided

The following table sets out supports that are NDIS supports for participants and prospective participants (subject to subsections 10(4) and (9) of the NDIS Act and subsection 5(2) of this instrument).

Supports that are NDIS supports unless otherwise provided

The provision of assistive products that support a participant to carry out domestic and everyday actions and tasks within a participant's home.

(a) assistive products for the preparation of food and drink;

Participants or prospective participants generally

Supports that provide assistance with essential household tasks that a participant is not able to do themselves because of their disability.

Participants or prospective participants generally

1. As explained in FSWN, the question of whether a requested support is an NDIS support, or not, is a mixed question of fact and law. That is, whether the requested support falls within a category of items in column 1 of the tables to Schedules 1 and 2 of the Transitional Rules is a question of fact. If the requested support falls within such a category, it will either be an NDIS support, or not, by operation of law.[57]
2. Leaving aside for the moment any consideration of the evidence relating to the requested support of 'meal preparation and delivery', the ordinary meaning of those words does not equate to 'food and groceries'; the former phrase clearly envisions a support in the nature of an external service preparing meals for, and delivering them to, a participant.
3. As such, in applying the two-step approach from FSWN, I am not persuaded that the requested support of meal preparation and delivery is of a character that falls within the scope of a category of support specified in column 1 of the table to Schedule 2 of the Transitional Rules, having regard to the description of supports that fall within the scope of that category, as contained in column 2 of that table.
4. Moving to the second step, does the requested support of meal preparation and delivery fall within the scope of column 1 of the table to Schedule 1 of the Transitional Rules, again having regard to the description of supports in column 2 of that table?
5. The obvious candidate item here is Item 23 in the table to Schedule 1, as noted above, if the requested 'meal preparation and delivery' was considered to be a support of the category described as providing 'assistance with essential household tasks that a participant is not able to do themselves because of their disability.' That is, if there was evidence that Ms Merrett required support in the form of meal preparation and delivery, because she could not prepare meals for herself because of her disability, it would be open to me to find that the requested support falls within Item 23.
6. However, Ms Merrett's evidence at the hearing made very clear that the bases for her request for this support are in effect two fold; the first basis being her challenging financial circumstances and her consequent difficulty in funding the purchase of sufficient food items, and the second basis being her broken oven, which limits her cooking options and the meals she can prepare.
7. Notwithstanding the opinions expressed by Ms Ng about the impact of Ms Merrett's psychosocial impairments upon her capacity to prepare meals, Ms Merrett's evidence at the hearing was clear as to her ability to regularly prepare meals for herself, when she is able to afford to purchase food, using the limited cooking options currently available to her, being her stove top and her slow cooker.
8. As such, Ms Merrett's request for meal preparation and delivery cannot fall within the scope of supports in Item 23 of the table in Schedule 1, as her evidence establishes that this support is not required to provide assistance with an essential household task that Ms Merrett is not able to do herself because of her disability.
9. As such, I find that this support is not an NDIS support, and section 34(1)(f) of the NDIS Act cannot be satisfied. It cannot therefore be included in Ms Merrett's SoPS.
10. I note also, for completeness, that Rule 5.1(d) of the Support Rules also prescribes that a support will not be provided or funded under the NDIS if it relates to day-to-day living costs,[58] such as groceries, that are not attributable to a participant's disability support needs. The evidence that I have noted above would require the application of this exclusionary rule, had it been found that the requested support was an NDIS support.
11. The fact that this support cannot be approved for inclusion in Ms Merrett's SoPS does not detract from the obvious difficulty of her current circumstances, which I recognise. For over a year her repeated requests to have her oven repaired by her landlord, including escalation of her complaints to the relevant consumer oversight agency, have been unsuccessful. That any person experiencing the circumstances of disadvantage and vulnerability that Ms Merrett faces in her daily life should be treated in such a manner is highly unfortunate, and completely unsatisfactory. Ms Merrett has basic rights as a tenant, including the right to have the oven that is fitted in her premises in working order. It is hoped that this regrettable situation will be remedied for Ms Merrett as soon as possible.
12. Similarly, Ms Merrett's evidence clearly reflected the challenges she faces on a day-to-day basis in being able to afford to buy sufficient food items to support her wellbeing, given the reality that a very high percentage of her Centrelink benefit is expended each fortnight on rental costs. However, notwithstanding the deep concern that such evidence evokes from any considerate person,[59] it is not the responsibility of the NDIS to meet the shortfall that Ms Merrett experiences in funding this necessary living cost. The NDIS is by design a scheme that operates within a much broader context of supports provided by all levels of government in Australia, to assist those in circumstances of need and/or disadvantage or vulnerability. The NDIS provides specific supports to its participants; but it is no panacea for all of the problems and challenges that those participants may face.
13. Turning now to the requested support for the provision of assistive technology, in the form of a Thermomix appliance, I accept the Agency's submission that this support falls within the description of supports in Item 1 of the table to Schedule 2; that is, it is a 'standard' household appliance, being a widely available item that is not disability specific.
14. The phrase 'standard item' is defined in section 4 of the Transitional Rules as follows:

standard item for a participant or prospective participant means an item that is not modified or adapted to address the functional impairments of the participant or prospective participant.

1. Accordingly, the determination of whether an item is a standard item, for the purposes of considering the application of the Transitional Rules and whether it is an NDIS support (or not), involves asking whether the relevant item has been or will be modified or adapted for use by the participant.[60]
2. There is no evidence before me to suggest that the requested Thermomix appliance would be modified or adapted in any way to address Ms Merrett's impairments. Ms Merrett's request and evidence envisioned the provision of an 'off-the-shelf' appliance, which would afford her an additional means of preparing meals in the context of the limitations arising because of her broken oven.
3. While Ms Ng's evidence spoke to the suitability of such an appliance for Ms Merrett, there is no suggestion as to adaptation or modification being necessary for its use by Ms Merrett.
4. Again, Ms Merrett's own evidence at the hearing about how she presently prepares meals for herself, within the constraints of the limited equipment available to her, does not support the concerns raised by Ms Ng and advanced to support the request for this form of assistive technology.
5. I find that the requested support of assistive technology in the form of a Thermomix appliance is not an NDIS support, and section 34(1)(f) of the NDIS Act cannot be satisfied. It cannot therefore be included in Ms Merrett's SoPS.

1. The remaining requested support is a further item of assistive technology, in the form of a three-wheeled electric cycle device (a trike).

1. In giving evidence at the hearing, Ms Merrett acknowledged that she has previously been provided with an electric bike through the NDIS, as an item of low-cost assistive technology.[61] Ms Slater also referred to Ms Merrett's use of an electric bike 'for local transport.'[62]
2. Ms Merrett explained that as she did not have her driving licence, she needed to frequently walk to destinations, such as the local shops. In doing so, she frequently felt unsafe.
3. Ms Merrett acknowledged that she was able to use various forms of public transport, including buses and trains, and she lived near to such transport, and also local shops (being within five minutes' walk). However, she felt that public transport was unreliable and was also unsafe, at times. Ms Merrett commented that it was unfair that she had to walk around, particularly at night, when other people could 'just get into their car and drive safely to the shops at 9 o'clock at night.'
4. For these reasons, she had requested that the Agency provide her with the trike. While Ms Merrett filed a quotation document from a local supplier, it is noted that this quote does not appear to include any reference to a trike or device of the type sought by Ms Merrett, although it does provide details and prices for a range of electric scooters and two-wheeled bikes.[63]

1. The Agency contended in its SFIC that provision of this support was not reasonable and necessary.
2. Further, the Agency contended that:

(a) Section 34(1)(aa) if the NDIS Act is not met, in that the need of Ms Merrett for the trike does not arise from her psychosocial impairments. > > (b) The trike is a day-to-day living cost, under Item 6 of the table to Schedule 2, being properly described as a 'recreational vehicle', and is not an NDIS support. > > (c) The provision of the trike is an everyday item expense and not reasonable and necessary in light of the previous provision of an electric bike.[64]

3. Additionally, in closing submissions Counsel for the Agency noted that Ms Merrett's SoPS presently included funding for assistance with social, economic and community participation, which she was able to access to have a support worker transport her on outings into the community.

1. In considering whether the requested support is an NDIS support, and the Agency's contention that it is not, the table to Schedule 2 of the Transitional Rules relevantly provides:

Supports that generally are not NDIS supports

(b) vehicle, including motor vehicles, motorbikes, watercraft, all-terrain vehicles, standard bikes and scooters, and other recreational vehicles;

(f) personal mobility devices, including e-scooters, electric bikes and skateboards;

1. Again, in determining whether the requested support is an NDIS support, it is necessary to first consider whether it is of a character that falls within the scope of a support described in Schedule 2. I find that the trike is, being of a character that falls within Item 6 above.
2. While the Agency suggested that the trike was properly described as a 'recreational vehicle', the evidence provided by Ms Merrett as to what she was seeking suggests it might more appropriately be described as an 'electric bike'. That term is not further defined in Schedule 2. However, I note that the Macquarie Dictionary provides that the meaning of 'bike' is 'a bicycle, tricycle, or motorcycle.' There is nothing in the evidence before me to indicate that the device sought by Ms Merrett, being an electric tricycle, falls outside the support description in Item 6 of an electric bike.[65]
3. As I have found that the requested support falls within Schedule 2 and is not an NDIS support, section 34(1)(f) of the NDIS Act cannot be satisfied. It cannot therefore be included in Ms Merrett's SoPS.
4. Additionally, I note that Ms Merrett has other means to travel within her local community; either through assistance from her support workers, or independently by use of her electric bike.
5. Again, for completeness, I note that Rule 5.1(c) of the Support Rules also prescribes that a support will not be provided or funded under the NDIS if it duplicates other supports delivered under alternative funding through the NDIS. The evidence as to the existing supports that I have noted above would require the application of this exclusionary rule, had it been found that the requested support was an NDIS support and otherwise a reasonable and necessary support for Ms Merrett.

1. I have found that none of the four supports requested by Ms Merrett should be approved for inclusion in her SoPS.
2. Accordingly, I affirm the decision under review.

In person, supported by Ms Laurelle Mamantov (Disability Advocate)

[1] Opening submissions of Counsel for the Agency (at the final hearing), 12 February 2026.

[2] Hearing Bundle, Document 6, NDIS Plan, 15 June 2024 - 15 June 2026, pages 49-64.

[3] Hearing Bundle, Document 3, Change and Review request, 29 July 2024, pages 17-20.

[4] Hearing Bundle, Document 2, Agency Internal Review Decision, 11 September 2024, pages 11-16.

[5] Hearing Bundle, Document 1, Application for Review of Decision, 18 September 2024, pages 1-10.

[6] Hearing Bundle, Document 8, Occupational Therapy Driving Assessor Report (Ms Louise Slater, Occupational Therapist), 1 June 2023 (Ms Slater's report), pages 70-79.

[7] Hearing Bundle, Document 9, Report of Occupational Therapist (Ms Scarlett Yuen Chun Ng), 10 April 2025, pages 80-87.

[8] Hearing Bundle, Document 10, Neuropsychological assessment report (Ms Carla Wardlaw, Psychologist), 1 September 2022, pages 88-96.

[9] Hearing Bundle, Document 14, Letter from Dr Robert Weiss, 9 December 2025, page 103.

[10] Hearing Bundle, Document 15, Letter from Ms Sarah Bruce, 4 February 2026, page 104.

[11] Hearing Bundle, Document 11, Meal delivery support quote (Able Foods), 20 February 2025, page 97.

[12] Hearing Bundle, Document 12, Driving lessons quote (Ms Sarah Bruce), 21 February 2025, page 98.

[13] Hearing Bundle, Document 13, E scooters and E bikes quote (PedL E-Bikes and E-Scooters), 8 May 2025, pages 99-102.

[14] See section 25 of the Administrative Review Tribunal Act 2024.

[15] This section and some others in this decision dealing with the applicable law have been adapted from previous decisions of the Member.

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

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

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

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

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

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

[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.

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

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

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

[30] Ms Merrett's plan is an old framework plan - see section 32A of the NDIS Act.

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

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

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

[34] Evidence of Ms Merrett, 12 February 2026. It is noted that Ms Merrett's NDIS plan refers to Centrelink providing support 'regarding DSP', that is, the Disability Support Pension.

[37] Ibid, at page 74 of the Hearing Bundle.

[38] Ibid, at page 75 of the Hearing Bundle.

[39] Hearing Bundle, Document 12, Driving lessons quote (Ms Sarah Bruce), 21 February 2025, page 98.

[40] Hearing Bundle, Document 15, Letter from Ms Sarah Bruce, 4 February 2026, page 104.

[43] As stated in, for example, Hearing Bundle, Document 15, Letter from Ms Sarah Bruce, 4 February 2026, page 104.

[44] Hearing Bundle, Document 3, Change and Review request, 29 July 2024, at page 20.

[45] Ms Merrett repeatedly referenced this specific brand/product at the hearing when speaking about the requested support of meal preparation and delivery.

[46] Hearing Bundle, Document 11, Meal delivery support quote (Able Foods), 20 February 2025, page 97.

[47] Hearing Bundle, Document 9, Report of Occupational Therapist (Ms Scarlett Yuen Chun Ng), 10 April 2025, at pages 81-82.

[49] The Agency's SFIC, at [5.3]- [5.9].

[51] See the approach outlined in FWSN and National Disability Insurance Agency [2025] ARTA 114, (FWSN) at [43].

[52] Chief Executive Officer, National Disability Insurance Agency and Hyde (Guidance and Appeals Panel) [2025] ARTA 2597 (Hyde), per DP Dordevic at [13], citing ZNVT by his nominee (ZNVT(N)) and CEO, National Disability Insurance Agency [2025] ARTA 1824, at [44].

[53] Hyde, per DP Dordevic at [14], citing Duse and National Disability Insurance Agency [2025] ARTA 37, at [156]-[157].

[54] Hyde, per DP Dordevic at [15], citing NZGW and CEO, National Disability Insurance Agency [2024] ARTA 1035, at [78].

[55] Hyde, per DP Dordevic at [16]-[17].

[58] Noting the construction of that phrase as addressed by the Full Court of the Federal Court in the decision in National Disability Insurance Agency v Warwick [2025] FCAFC 100, at [64]-[67], in that such costs are necessary for living and incurred frequently or regularly.

[59] Disturbingly, the letter provided by Ms Merrett's General Practitioner (Hearing Bundle, Document 14, dated 9 December 2025, at page 103) referred to Ms Merrett as 'showing signs of under nutrition as she cannot afford food.'

[60] See Hyde, per Deputy President Dordevic at [21]-[26] and per Senior Members Bean and Shepherd at [155].

[61] Given the following discussion about the effect of the Transitional Rules, it is assumed that this electric bike, if provided by the NDIS (there being no specific evidence of that, beyond Ms Merrett's testimony at the hearing), was provided prior to the commencement of those Rules. It is noted that an earlier plan provided in the Hearing Bundle (Document 5, NDIS Plan 23 November 2022 - 24 November 2024, pages 28-48), contained a similar support for low-cost assistive technology, as that within Ms Merrett's current plan.

[63] Hearing Bundle, Document 13, E scooters and E bikes quote (PedL E-Bikes and E-Scooters), 8 May 2025, pages 99-102.

[64] The Agency's SFIC, at [5.14]- [5.18].

[65] See also Mills and National Disability Insurance Agency [2025] ARTA 1410, at [50]-[55].