Respondent: National Disability Insurance Agency

Decision: The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the orders that the following reasonable and necessary supports should be funded in the Applicant's statement of participant supports:

(ii) Funding for a Building Works Project Manager (quote to be provided) for the following:

(A) To work with the treating Occupational Therapist (OT) to complete an amended scope of works and gain an updated builder quote (inclusive of costs of any required local authority approvals and duration for which temporary accommodation will be required for the Applicant and the family) for the following reasonable and necessary complex home modifications:

• Rear access: modification including new sliding door and ramp. Note that door dimensions would need to differ from treating OT recommendations, an alternate door type (sliding stacker door) is likely to be a more suitable option, and a step or threshold ramp would also be required.
• Front Access: Door widening and removal of load bearing wall. Fix external concrete at entrance to ensure a level access at front access and wainscotting to reduce risk of future damage. Rigid vinyl recommended as suitable material for wall protection.
• Bedroom: Door widening to 1000m, wainscotting to reduce future damage and H-track ceiling hoist. Rigid vinyl recommended as suitable material for wall protection.
• Living area/Hallway: removal of load bearing wall; wainscotting to reduce future damage. Rigid vinyl recommended as suitable material for wall protection.

(B) Once the cost of modifications which meet Section 34 criteria and duration of temporary accommodation requirement is known, funds can be added to the participant's plan.

(iii) All other reasonable and necessary supports in the existing Statement of Participant Supports dated 16 May 2025 are affirmed.

.....................................................................

NATIONAL DISABILITY INSURANCE SCHEME - participant supports - plan review - complex home modifications - transport - child Applicant - reasonable and necessary supports - occupational justice - consideration of section 34 National Disability Insurance Scheme Act 2013 (Cth) - decision under review remitted

Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

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

National Disability Insurance Scheme Act 2013 (Cth) s 3, s 4, s 5, s 34, s 35

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

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

National Disability Insurance Scheme (Supports for Participants) Rules - 1 July 2013, Rules - 3, 5

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

National Disability Insurance Agency v WRMF [2020] FCAFC 79

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250

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

Beezley v Repatriation Commission [2015] FCAFC 165 (2015); 150 ALD 11

NDIS - Operational Guidelines - Reasonable and necessary supports, 28 March 2025

NDIS - Operational Guidelines - Transport Funding, 22 May 2025

NDIS - Operational Guideline - Short-Term Accommodation or Respite, 24 June 2022

NDIS - Operational Guideline - Home modifications, 7 April 2025

NDIS - Home Modifications Guidance for Builders and Designers

1. MXYF, the Applicant, is a 10-year-old boy who lives in a single-storey home in New South Wales, with his parents and four siblings, two of whom are also reported to be National Disability Insurance Scheme (the Scheme; NDIS) participants. The Applicant met access to the NDIS based on permanent impairments arising from a physical disability, that being cerebral palsy.
2. The Tribunal's jurisdiction to undertake this review arises under s 12 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act),[1] operating in conjunction with s 103 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).[2]

1. On 21 August 2023, a delegate of the CEO of the Agency (delegate) made a decision under s 33(2) of the NDIS Act to approve the statement of participant supports in the Applicant's NDIS Plan for the period 21 August 2023 to 20 August 2025.[3]
2. On 13 September 2023, the Applicant applied for an internal review of the decision to approve the statement of supports in relation to the 21 August 2023 to 20 August 2025 plan.
3. On 21 November 2023, a delegate made a decision under s 100(6)(a) of the NDIS Act to confirm that statement of supports for the Applicant.
4. On 28 November 2023, the Applicant made an application to the Administrative Appeals Tribunal (AAT).[4] Pursuant to s 24 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the application for review must now be continued and finalised by the Administrative Review Tribunal (the Tribunal).
5. The Tribunal is reviewing the decision made by the internal reviewer on 21 November 2023 confirming the decision to approve the Applicant's statement of participant supports under s 33(2) of the NDIS Act.
6. Under s ‑‑‑105 of the ART Act, the Tribunal has the power to affirm the decision (which would have the effect of leaving things as they are), varying the decision or making a completely new decision about the supports that should or should not be included in the Applicant's plan. The Tribunal also has the power to set aside and remit the decision.

1. This matter has had multiple case events, including: 1 conciliation; 6 case conference listings (3 were held and 3 vacated); 1 case management directions hearing; and a case management directions hearing for non-compliance. There have been 2 formal requests for Extension of Time, but multiple late submissions of documents such as statements of facts, issues and contentions (SOFIC), the Joint Tender Bundle (JTB), witness list and hearing plan. Requests for the witness list and hearing plan were made in person before the hearing started on 14 April 2025. Further, there was substantial delays during the course of the hearing as the Respondent was delayed in filing documents. The Tribunal therefore provided the Applicant additional time. For example, providing additional time for the Applicant to consider the documents before agreeing to proposed s 83 remittal order (for 6 of the former 12 supports in issue) and also adjourning the hearing for a couple of weeks to give sufficient time for the Applicant's Mother to prepare the Applicant's closing submissions.
2. Where there are accessibility requirements, particularly for an unrepresented child Applicant, as in this case, Agency non-compliance may impair the objectives of administrative review as outlined in s 9 of the ART Act; specifically, to ensure that the review process is fair,[5] accessible and responsive to the diverse needs of applicants,[6] and finally promotes public trust and confidence in the Tribunal.[7] Further, pursuant to s 56 of the ART Act, parties and their representatives are to assist the Tribunal.
3. The parties appeared before the Tribunal at a five-day hearing from 14, resuming 15, 16 and 17 April 2025 to give evidence and present arguments and on 20 May 2025 to make closing submissions. The Applicant was self-represented by his Mother, who was supported by her support person (Representative's Supporter). The Applicant's parents were provided with the opportunity for breaks during the hearing. The Agency was represented by Ms Louise Beange of Counsel instructed by the Agency's lawyer, Ms Emily Baggett from Mills Oakley.
4. The proceedings were conducted in person at the Tribunal's Sydney Registry. The Applicant was present for part of the hearing when both of his parents provided oral evidence, as the hearing coincided with the first week of the NSW school holidays.
5. Oral evidence was given at the hearing for the Applicant by the Applicant's Mother (Applicant's Mother) and the Applicant's father (Applicant's Father). Mr Michael Morris, and Occupational Therapist (OT) for the Respondent gave oral evidence.
6. On the first day of the hearing the following supports were in issue:

(a) Level 3 Transport allowance

(b) Dietary supplements: $8,142.84

(c) 12 x pairs of adaptive shoes $2,404.80

(d) 30 days of STA/Respite

(e) 1:1 Support worker assistance for self-care support 4 hours/day (morning and afternoon), high intensity rate requested

(f) Social and community access support during school holidays and after school/weekends

(g) Wheelchair - Zippy XCAPE $7,488.00

(h) Standing Frame

(i) Zimmer Splints

(j) 10 additional hours of Occupational Therapy for recliner chair assessment

(k) Complex Home Modifications

(l) Temporary accommodation during home modifications

1. After the fourth day of the hearing at the conclusion of the evidence, the parties filed a s 84 ART Act application for remittal based on their partial agreement. The parties agreed to include the following supports in a 12-month plan:

(m) 8 hours for assessment by a continence nurse

(n) Continence consumables based on 12 nappies per day

(o) Disability-related low-cost health consumables of $2500

(p) 64 hours of physiotherapy

(q) 12 hours of dietician support

(r) Vitamix A2300i with Vitamix Ascent Series Blending cup and bowl $1,348

(s) Walking frame $4296

(t) 2 x pairs of Solid Ankle Foor Orthoses $5,548.34

(u) Dietary consumables $3,081.72

(v) 6 x pairs of adaptive shoes $1,500

(w) Zippy XCAPE Wheelchair $7,488

(x) Rifton Mobile Stander $10,728

(y) 28 days of STA (Respite) at 1:2 ratio, comprised of 20 weekdays, 4 Saturdays and 4 Sundays

(z) 4 hours per day of Assistance with Daily Life, 48 weeks per year, 1:1 ratio (daytime), higher intensity rate, Monday to Sunday including public holidays

(aa) 2 hours each Saturday and 2 hours each Sunday, 48 weeks per year, Assistance with Social, Economic and Community Participation

(bb) 4 days per week, 10 weeks per year Group Activities - High Intensity - Weekday daytime 1:3 ratio

1. On the evening of 20 June 2025, one month after the hearing, the Respondent filed the Applicant's new plan for the period 16 May 2025 to 15 May 2026,[8] resolving in part, 6 of the former 12 supports that were in issue. This is the subsequent operative decision before the Tribunal.
2. The residual 6 supports that the Agency has not accepted (detailed below at [21]) remain in issue and are the subject of this decision.
3. The Tribunal notes that some of the arguments raised at the hearing by the Applicant were made in the context of MXYF not having these 6 new supports in his plan.

1. At the hearing, the Tribunal took a fresh and impartial look at the reviewable decision by the Respondent. The Tribunal is independent of the Agency. It considered all relevant evidence on the Tribunal file and oral evidence provided during the hearing to make the preferable decision according to law.
2. The Tribunal understands the following supports to be in issue (Requested Supports):
   • Support 1 - Transport (increase from Level 1 to Level 3; Agency agrees to Level 2).
   • Support 2 - STA/respite (increase from $12,485.12 per year to 21 days per year at 1:1 ratio. The Agency contends that 28 days per year at 1:2 ratio (equivalent to 14 days at 1:1 ratio) is the maximum that could be considered reasonable and necessary supports.[9]
   • Support 3 - Support hours for self-care and daily needs (increase from 4 hours per day, 48 weeks per year at a 1:1 ratio to 6 hours per day).
   • Support 4 - Social and community access support during school holidays and after school/weekends (the Applicant seeks funding for specific programs - Barndaos Saturday program and Barnardos holiday program - to cover the full number of holidays per year).
   • Support 5 - Complex home modifications (Applicant seeks funding for an extension, as the preferred option).
   • Support 6 - Accommodation during home modifications (this is not contested between the parties).
3. The issue before the Tribunal is whether the requested supports are reasonable and necessary under s 34(1) of the NDIS Act.
4. In respect of each of the above, the Respondent agrees that some level of support of is reasonable and necessary. The dispute before the Tribunal is as to the correct level for that support.

Objects, General Principles, and Intentions of the NDIS Act

1. The objects, general principles and intentions of the NDIS Act are stipulated in ss 3, 4 and 5.
2. While an objects clause may not be used to override the otherwise clear meaning of an operative provision, it can assist in giving 'practical content' to common terms that are used within the legislative scheme and are intended to facilitate an understanding of the intended construction and operation of the Act, by setting out what Parliament intends to pursue by the exercise of legislative power.[10]
3. Section 3(1) of the NDIS Act provides that the objects of the NDIS Act include, relevantly, to provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme (NDIS) and to enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports.
4. One of the objects of the NDIS Act is to give effect to Australia's obligations under the Convention on the Rights of Persons with Disabilities (CRPD) and the Convention on the Rights of the Child (CRC): NDIS Act ss 3(1)(a), 3(i)(iii).
5. Article 7 of the CRPD provides:

Article 7 > > Governments must help children with disabilities enjoy all freedoms and human rights equally with other children, and ensure children's views are heard and their best interests are always considered.

Article 31 > > States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.

7. Section 4 sets out the general principles guiding actions under the NDIS Act. They include, relevantly, that people with disability should be supported to receive reasonable and necessary supports, including early intervention supports. Reasonable and necessary supports for people with disability should support people with disabilities to live independently and to be included in the community as fully participating citizens. People with disability should also 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.[11]
8. Section 4(16) of the NDIS Act provides that:

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

9. The advancement of the objects and general principles of the NDIS Act is not without limits. Sections 3(3) and 4(17) of the NDIS Act provide that in giving effect to the objects and general principles of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS, and the provision of services by other agencies, departments or organisations and the need for interaction between provision of mainstream services and the provision of supports under the NDIS.
10. Section 5 of the NDIS Act further states that it is the intention of the Parliament that, if the NDIS Act requires or permits an act or thing to be done by or in relation to a person with disability by another person, the act or thing is to be done, so far as practicable, in accordance with the principles that, relevantly, people with disability should be involved in decision making processes that affect them, and where possible make decisions for themselves.
11. Thus, in the provision of reasonable and necessary supports under the NDIS Act, a balance is required between ensuring that people with disability can exercise choice and control in the pursuit of their goals and the planning and delivery of their supports, and the need to ensure the financial sustainability of the NDIS.

1. The Tribunal's task is to stand in the shoes of the decision maker and review the decision that is the subject of this review.[12]
2. The reviewable decision was the approval of the Applicant's plan under s 33 of the NDIS Act. It is the residual six supports that the Agency has not accepted (detailed above at [16]) that remain in issue, and which are the subject of this decision.
3. Section 33 of the NDIS Act includes the following relevant provisions:

33 Matters that must be included in a participant's plan

...

(2) A participant's plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:

(a) the general supports (if any) that will be provided to, or in relation to, the participant; and

(b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and

(c) the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and

(d) the management of the funding for supports under the plan (see also Division 3); and

(e) the management of other aspects of the plan.

...

(5) In deciding whether or not to approve a statement of participant supports under subsection (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.

1. The Tribunal's task is two-fold. First, it needs to determine whether the claimed supports are 'reasonable and necessary supports' within the meaning of that phrase in the NDIS Act.[13] Second, even if considered to be a 'reasonable and necessary support', a decision will need to be made as to whether that will be funded under the participant's Plan.

1. In determining what 'reasonable and necessary supports' will be funded under a Participant Plan, s 34 of the NDIS Act provides as follows:

34 Reasonable and necessary supports > > (1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support: > > (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. > > (2) The National Disability Insurance Scheme rules may prescribe 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 the paragraphs (1)(aa) to (f).

2. Each of the requirements of s 34(1) and the Rules must be satisfied for a requested support to qualify as a reasonable and necessary support. If the Tribunal is not positively satisfied that any one of the criteria in s 34(1) or the Rules is met in relation to a requested support, then the Tribunal must find that that support is not a reasonable and necessary support for the purpose of the NDIS Act.

1. In October 2023, the NDIS Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth) (Amending Act) was passed. That Amending Act made a number of relevant changes including to s 34 of the NDIS Act.
2. The NDIS Act, as revised, applies to the current review: s 129 of the Amending Act.
3. The Amending Act made a number of changes to s 34, including inserting the present wording at 34(1)(f) requiring that the support be an 'NDIS Support', and defining that term.
4. The term 'NDIS support' in subsection 34(1)(f) is defined in s 10 of the _NDIS Ac_t by reference to the relevant rules, being the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth) (Transitional Rules).
5. The Transitional Rules declare in Schedule 1 a list of supports which are taken to be NDIS supports for the purpose of s 34(1)(f), and in Schedule 2 a list of supports which are taken not to be NDIS supports for the purpose of s 34(1)(f). This is summarised by the Agency as follows:

(a) A support which is declared in Schedule 2 as "generally not an NDIS support" is not an NDIS support, for the purpose of s 34(1)(f), and therefore cannot be a "reasonable and necessary" support; > > (b) A support which is declared in Schedule 1 to be an NDIS support must still meet the other requirements of s 34(1) in order to be a 'reasonable and necessary' support > > s 10(6) of the Act provides power for the CEO to declare a support which is proscribed by Schedule 2 to be an NDIS support for a particular participant, but only where s 10(6) is satisfied. That section is not relevant for this review.

6. As articulated by the Tribunal in FSWN and NDIA,[14] the effect is to put in place a threshold determination about whether a support is a NDIS Support. This creates a two-step process:

Stage 1: The Tribunal must first consider the nature of the support requested, focusing on the support, not the participant

7. Step 1: If the support is of a character that falls within a category in Schedule 2, 'The requested support is not an NDIS Support and cannot be approved for inclusion in a SoPS because of s 34(1)(f)'
8. Step 2: If the support is of a character mentioned in Schedule 2, determine if it is of a character capable of falling within a category in Schedule 1

(a) If no, the requested support is not an NDIS Support and cannot be approved for inclusion in a SoPS because of s 34(1)(f)

(b) If yes (that it, it is within Schedule 1), then it is capable of being an NDIS Support under s 34(1)

Stage 2: the Tribunal must then consider the other criteria in s 34(1) and the associated supports Rules, in line with the accepted principles.

If the support is found as a matter of fact to be within Schedule 2, or Schedule 1, there is no discretion. The support will either be, or not be, an NDIS Support by operation of law.[15]

It is not sufficient to find the support is not excluded by Schedule 2. The support must be included in Schedule 1.

If a requested support is not an NDIS Support by operation of the Transitional Rules, the criteria specified by s 34(1)(f) of the principal Act as amended cannot be satisfied.

1. The Amending Act replaced the former s 34(1)(f). The same obligation now appears instead at National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024, r 7. The CEO must also be satisfied that:

the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered: > > (a) as part of a universal service obligation; or > > (b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

2. This provision, in effect, continues the requirement which was previously found in s 34(1)(f) prior to 3 October 2024. The prior Rules, namely the National Disability Insurance Scheme (Supports for Participants) Rules - 1 July 2013 (the Support Rules) continue in effect, to the extent relevant here.

1. The term 'reasonable and necessary' is not defined in the Act. In WRMF and NDIA [2020], the Full Court of the Federal Court observed that 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.'[16]

1. Subsection 34(2) provides that the NDIS rules may prescribe methods or criteria to be applied or matters to which the decision maker is to have regard, in deciding whether they are satisfied that the criteria under s 34(1) have been met in respect of a requested support.
2. The relevant rules are the Support Rules. Part 2 of the Support Rules relevantly sets out that:

In administering the NDIS and in approving each plan the CEO must have regard to objects and principles of the Act including the need to ensure the financial sustainability of the NDIS and the principles relating to plans.

3. Relevantly, Part 3 of the Support Rules sets out the following:

Value for money > > 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 outcome at a substantially lower cost; > > (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 leading the equipment or modifications; and > > 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 circumstances. That evidence may include: > > (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 account, and if necessary seek, expert opinion.

Supports appropriately funded or provided through the NDIS

3.5 Schedule 1 sets out matters for the CEO to have regard to in considering whether supports are most appropriately funded or provided through the NDIS, rather than through other service systems (service systems is defined in paragraph 6.4).

...

3.7 Where particular supports are set out in the Schedule as being appropriately funded or provided through the NDIS, the CEO must still be satisfied of a number of other matters in order for the supports to be funded or provided (see paragraphs 2.3(a)-(e) of these Rules and paragraphs 34(a)-(e) of the Act).

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

General criteria for supports > > 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 necessary supports): > > (a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs; > > (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.

2. The Tribunal must also have regard to any relevant Guidelines prepared by the Agency for the purpose of these decisions.

1. The Agency also issues Operational Guidelines in relation to the supports. There is no power conferred to the Agency to make Operational Guidelines and they are issued as an exercise of executive power. The Tribunal is not bound by any policy set out in the Agency's Operational Guidelines. However, unless they are inconsistent with the provisions or objects of the legislation, the NDIS Operational Guidelines represent government policy and should be applied unless there is good reason to depart from them.[17]
2. The Reasonable and Necessary Supports Operational Guidelines provide:

... before we can include an NDIS support in your plan, we need to be satisfied it meets all the following criteria: > > • The support is related to your disability. > > • The support will help you to pursue your goals in your plan. > > • The support will help you to undertake activities, to facilitate your social and economic participation. This means the support will help you join in social outings, recreation, work and study by reducing the disability-related barriers that prevent you from participating. > > • The support represents value for money. This means we need to consider the costs and benefits of the support, as well as the costs and benefits of alternative supports. > > • The support will be, or is likely to be, effective and beneficial for you, having regard to current good practice. This means we consider if there is evidence the support works for someone with similar disability support needs. We won't need an expert report for every support, as we can often rely on other information or evidence. For example, we may have information already about whether the support is widely accepted to suit someone with your disability support needs.18 We also consider your lived experience. > > • The funding of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide. This means we need to consider what support is reasonable for your family, friends and community to provide. > > • The support is an NDIS support for you.[18]

3. The Operational Guideline also explains what is meant by 'social participation':

Social participation means doing things you enjoy, like going out with friends, playing sport or going out into the community. It also means doing the things you need to do, like going to school or medical appointments. [19]

4. The Tribunal also notes the Transport Funding Operational Guidelines. These are referenced in more detail in the reasoning below.
5. The Short-Term Accommodation or Respite Operational Guidelines provide:

Short Term Accommodation, including respite, is support for when you need to live out of home for a short period. > > Short Term Accommodation funding can be used for respite to support you and your carers. This gives your carers a short break from their caring role. > > Sometimes a short stay away from home:

• gives you the chance to try new things
• can be a place to make new friends or develop new skills
• may help to maintain your current living situation by giving your informal supports a break.

Short Term Accommodation may suit your needs if your usual support network isn't available for a short period.  > > Short Term Accommodation includes:

• personal care
• accommodation
• food
• activities you and the provider agree to.

Usually we fund up to 28 days of Short Term Accommodation per year. You can use your Short Term Accommodation funding flexibly. For example, you might want to use it in a block of up to 14 days at a time or for one weekend a month.

1. Also relevant, are the Home Modifications Operational Guidelines. They are quite extensive, and provide the following:

Can you get a new room in your home? > > We think about if you could modify or rearrange other parts of your home instead of a new room. We don't fund standard home improvements and renovations.35 This includes modifications that increase a building's size, like extensions to your home, or a new storey. > > We also might talk to you about if you'd prefer to move into a more accessible home. We'll consider your needs and preferences about where you want to live, and other factors including your family, community, culture, and work. We'll consider the long-term costs and benefits of other supports compared with home modifications.

2. The Applicant does not bear any formal onus of proof to establish that the requested supports are reasonable and necessary. Nevertheless, a request for supports is a claim for a public benefit which will only be available if the statutory requirements of ss 33 and 34 of the NDIS Act and the associated Rules are met.[20] The Applicant therefore bears a practical onus of putting forward, or drawing attention to, material that persuades or satisfies the Tribunal that those criteria are met.
3. Essentially, the Tribunal's task is two-fold. First, it needs to determine whether the claimed supports are 'reasonable and necessary supports' within the meaning of that phrase in the NDIS Act. Second, even if considered to be a 'reasonable and necessary support', a decision will need to be made as to whether that will be funded under the Plan.
4. Even if the above criteria in s 34 are met, the Tribunal will need to be satisfied that the proposed supports accommodate the individual's particular impairments and to assist that particular individual to be a participating member of the Australian community, on the basis of that values set out in the objects, guiding principles of the NDIS Act.[21]

1. In summary, as outlined by the Respondent in its closing submissions,[22] the required approach for the Tribunal is to:

(cc) Determine the nature of the support claimed. > > (dd) Determine whether it is a support of a character identified in Schedule 2 of the Transitional Rules. If yes, the support cannot be funded. > > (ee) If not, determine if the support is of a character identified in Schedule 1 of the Transitional Rules. If not, the support cannot be funded. > > (ff) If established that the support is not within Schedule 2 and it is within Schedule 1, consider each of the criteria in s 34(1) and the applicable Rules. > > > (i) In considering s 34(1) have regard to relevant Guidelines where applicable. These ought to be applied where possible, although they are not binding on the Tribunal where there is a sufficient case to decide otherwise > > (gg) If positively satisfied of all matters in s 34(1) determine whether the support is a reasonable and necessary support for MXYF.

1. The Tribunal marked evidence received at the hearing as Exhibit ('E'):
   • JTB - Consolidated joint tender bundle (JTB), filed 11 April 2025 - 1034 pages (noting JTB49, ''Affidavit'; JTB50, ''Affidavit' which are subject to s 88 of the ART Act to the extent that they contain information which was obtained in the conciliation process and criticisms of a representative of the Agency who was present at those meetings).
   • E1 - Respondent's Statement of Facts, Issues and Contentions (SOFIC) dated 14 February 2025, 16 pages.
   • E2 - Applicant's email submissions in response to the Respondent's SOFIC (including 8 attachments) filed 17 March 2025 (noting the attachments include JTB49 and JTB50 referred to above), 152 pages.
   • E3 - Email attaching Letter of Support from Ms Emma Duffy (Physiotherapist) dated 4 October 2023 regarding serial casting treatment for MXYF's legs, 5 pages.
   • E4 - Appointment Confirmation Letter from the Children's Hospital at Westmead dated 19 February 2025, 1 page.
   • E5 - Medicare Clams History for MXYF (14 February 2025 - 14 April 2025), 4 pages.
2. I have considered the oral evidence provided at hearing on 14, 15, 16, 17 April and 20 May 2025, the filed written evidence as provided in the JTB, the evidence tendered at the hearing, and the parties' closing submissions. For the reasons that follow, I summarise and rely on the more salient aspects of the evidence in respect of this application for review. The fact that I do not refer to all the evidence does not mean that I have not taken all evidence before the Tribunal into account in reaching my conclusion.

1. MXYF, the Applicant, is a 10-year-old boy who lives in the family's house in New South Wales, with his parents and four siblings (10 years old, 7 years old, 5 years old and 2 years old), two of whom are also reported to be National Disability Insurance Scheme (the Scheme; NDIS) participants. The Applicant met access to the NDIS based on permanent impairments arising from a physical disability, that being cerebral palsy. MXYF has been diagnosed with Dystonic Diplegic Cerebral Palsy (CP; GMFCS IV) that results in reduced independence for MXYF in everyday tasks, such as mobilising, transferring and performing personal activities of daily living.
2. Evidence from Physiotherapist Ms Mary Nguyen states that MXYF is assessed as level 4 on the Gross Motor Function Classification System (GMFCS) tool commonly used for children and young people with CP to categorise their gross motor skills. This means that MXYF is reliant on assistive technology or physical assistance for all mobility. She states MXYF:

Can propel short distances in a body support walker at home and school and requires a manual wheelchair for longer distances, especially in community settings. The GMFCS score is predictive of future mobility for children after the age of 5, i.e. children after 5 will not improve their level. Therefore, MXYF is predicted to use and require a walker and wheelchair for all mobility for the remainder of his life.[23]

3. MXYF also has a secondary diagnosis of Global Developmental Delay, resulting in reduced gross and fine motor skills, communication difficulties and poor social skills.
4. MXYF attends a local primary school and receives assistance from teacher's aides. He also receives transport services to and from school. Due to his disabilities, MXYF requires frequent medical intervention. He has had two hip surgeries and muscle release surgeries.
5. MXYF was granted access to the scheme in 2015.[24] The Applicant is currently funded for the following NDIS supports:
   • Core flexible funding ($198,599.28 includes: (i) Assistance with Daily Life (ii) Assistance with Social, Economic and Community Participation, and (iii) Consumables)
   • Assistive technology ($30,560.34)
   • Choice and control ($1,485.84 to manage plan funding and pay for services using a registered plan manager)
   • Home modifications ($500.00)
   • Improved Daily ($12,041.52; Living Skills (includes support for Occupational Therapist, Speech Pathologist, Physiotherapist and Dietitian to assess and provide strategies to increase capacity skills)
   • Support Coordination and Psychosocial Recovery Coaches ($6,008.40)
   • Recurring transport ($1,784.00)
6. MXYF's current plan for the period from 16 May 2025 to 15 May 2026 contains six goals. MXYF would like to be supported to:[25]
   • develop his play and social skills so he can participate confidently with his peers
   • develop ways to communicate, to be able to indicate a choice, make a request and let familiar adults know his needs
   • continue to develop his cognition, play and fine motor skills and have opportunities for learning in his natural settings
   • have suitable supports in his environment to enable him to participate in daily self- care routines
   • continue to grow his emotional wellbeing so he can enjoy and cope with daily life activities
   • move independently on the floor, in standing and in walking to give him the opportunity to access and participate with his family and peers.
7. A summary of the evidence before the Tribunal is as follows. MXYF:[26]
   • Requires physical assistance with transfers, including in and out of the bed, the bath and car, and his mobility aids
   • Requires 1:1 assistance with eating, including a specialised diet to manage his dysphagia
   • Requires 1:1 assistance with all aspects of personal hygiene, including changing nappies; he cannot manage any of these himself
   • Uses mobility aids to move around. He can move around himself, though with limited skill. Regarding getting in and out of those aids, MXYF:
     • requires assistance to get in and out
     • is able to get in and out of his walker on his own in some circumstances
     • can move around by crawling or holding onto furniture
   • Displays behaviours of concern and challenges with emotional regulation
   • Has limited safety awareness
   • For safety reasons, requires direct supervision while in the community.
8. I refer in full to the Applicant's closing submissions of 20 May 2025 where he contends why his requested supports are reasonable and necessary.

1. I refer to the Applicant's Mother's carer impact statement dated 11 December 2024.[27] In addition, the Applicant's Mother gave oral evidence at the hearing. I am satisfied that her evidence was honest and truthful. The Applicant's Mother's oral evidence aligned with her written statement.
2. At the hearing, the Applicant's Mother gave the following oral evidence, that she is MXYF's primary care giver and provides him with assistance with all activities of daily living. The family do not have extended family in Australia. She is supported by her husband, the Applicant's Father, when he is at home, but he is the income provider and works shift work full-time as a wards person in a hospital. She gave evidence that as the primary carer of MXYF, she is at risk of and has been burnt out.
3. A summary of her evidence with respect to the supports sought by the Applicant is as follows:

4. The Applicant's mother was asked at the hearing what the funding would be used to pay for, to which she was not able to identify any specific uses to which it would be put. She provided the following evidence:

• MXYF takes a bus to school
  • She has applied for the NSW taxi subsidy scheme but has not used it
  • She plans MXYF's appointments to align with the Applicant's Father's schedule
  • She estimates that MXYF has around 10 appointments per year that he is required to attend in person.

• MXYF has not utilised the existing STA budget in MXYF's plan
  • The request made up of a number of supports:

a) funding for emergency or short notice care where the Applicant's Mother was required to be absent

b) to use for emergencies where MXYF must be left at home - the Applicant's Mother gave the example of when she or a sibling is in hospital

c) for days when her sleep disturbance has affected her more than usual.[28]

(jj) Support 3 - Daily support worker assistance

• She provided no specific explanation as to what the additional two hours would be used for specifically.[29]

(kk) Support 4 - Weekend and school holiday support

• The Applicant relies on a quote from Barnados for a school holiday program (consisting of 4 days per week, 10 weeks per year) along with Saturday group programs (5.75 hours per week, 48 weeks per year) involving 1:1 support.
• She gave evidence that the number of days of the program in the quote relied on reflects the number of days she requested.
• Her evidence is that she has not tried any other program.

• She expressed a preference for the home extension as the preferred model. This was also raised in the Applicant's closing submissions.

(mm) Support 6 - Accommodation during home modifications

1. The Applicant's Father provided oral evidence at the hearing and a written carer statement. His oral evidence at hearing was interposed by him attending to MXYF and MXYF's younger sibling, both of whom were in the hearing room.
2. Regarding his oral evidence, the Agency's contends that the Applicant's Father's 'evidence strayed frequently and repeatedly strayed beyond the question and at times into submissions on his son or his wife's behalf.' I note that this may have been due to the Applicant's father sitting next to and attending to the needs of the Applicant. However, I accept the Agency's contentions and grant the Applicant's Father's oral evidence less weight.
3. A summary of his evidence is as follows:
   • He drives MXYF to his medical and other appointments, which the Applicant's Mother aligns with his schedule
   • He works full-time shift work at a hospital and is largely dependent on his wife, the Applicant's Mother to be the primary care giver for MXYF
   • Occasionally, if he is at home and awake in the evenings and notices MXYF has a need, such as a nappy change, he can confidently do that, but that this is something the Applicant's Mother mostly attends to.

1. Ms Bourne is the author of one of the multiple Complex Home Modification Assessments before the Tribunal. These include the Complex Home Modification Assessment Template dated 30 March 2022;[30] two letters dated 2 September 2022 and 7 March 2023,[31] and a Scope of Works document dated 5 November 2021.[32]
2. The Applicant relies on Ms Bourne's reports.[33]

1. Occupational Therapist, Dr Hammill was briefed by the Agency to provide an independent complex home modification assessment. She is an experienced academic and clinician with expertise in home modifications, rehabilitation, and palliative care. She has a doctorate in occupational therapy and has developed courses on home modifications, occupational therapy theory and practice at Western Sydney University.
2. Dr Hammill is the author of a Complex Home Modification Assessment form dated 20 May 2024, which is before the Tribunal.[34] She also provided a letter dated 27 September 2024 responding to targeted questions.[35]
3. Dr Hammill did not appear as a witness at the hearing. Her evidence is summarised below:

1. Dr Hammill situated the Applicant's report in a life-course perspective; she stated:

Life Transitions > > [MXYF] is a young boy who is going to go through many transition points as he ages and grows. His first big transition point will be commencing High School and going through puberty. Over the coming years [MXYF] will experience growth resulting in height and weight gain, and require larger pieces of assistive technology to support him to complete his activities of daily living.

2. Dr Hammill identified issues for MXYF with mobility, transfers and functional cognitive status and made the following recommendations:
   • Mobility (Including the ability to use stairs and ramps):[36]
     • Widen front door access to enable MXYF to directly enter the home from the front using his mobility aids when dropped off in the school bus or car
     • Remove hallway wall to increase access into lounge room, his parent's room, and front access
   • Transfers, consider bed, chair, toilet, and car:[37]
     • Increase circulation space in the home through home modifications at the front access, lounge room, bathroom, and bedroom
     • Trial and purchase of a hoist for transfers
     • Use a tilt in space shower commode for self-care activities including showering and toileting
   • Toileting:[38]
     • Complete complex bathroom modification to increase circulation space and enable use of tilt-in space commode to enable toileting on a toilet
     • Installation of a bidet to reduce manual handling from parents/support workers when completing perineal hygiene
   • Dressing:[39]
     • Complete complex bathroom modification to increase circulation space and enable use of tilt-in-space commode to reduce the need to transfer MXYF to the bed or floor to dress
   • Showering and bathing:[40]
     • Complete complex bathroom modification to increase circulation space and enable use of tilt-in-space commode for showering tasks.
3. With respect to the home modifications Dr Hammill's Report details MXYF's home and social situation as follows:[41]
   • A structural engineer has reviewed the property and determined that the proposed modifications are viable (report attached)[42]
   • The family has already spent a large amount of money on the home already to improve accessibility do not have the funds to fund the proposed modifications
   • The recommended home modifications are urgently required as:
     • MXYF is unable to enter or exit his home using his mobility aids and requires his parents to carry him into/out of the property
     • A hoist will not fit in the current environment resulting in his parents having to lift him multiple times for transfers throughout the day
     • MXYF weighs approximately 20kg and will continue to gain weight putting his parents at significant risk of sustaining further back injuries
     • MXYF is unable to use his mobility aids inside due to limited circulation space resulting in worsening of posture and increased disability
     • MXYF is experiencing occupational deprivation as he is unable to use or access his home in the same way that his family can, limiting his participation in activities.
4. Dr Hammill's recommendations with respect to the modification details in the house are marked as high priority and include the following to the front access:[43]

1. Widen front doorway to a minimum of 1200mm with a minimum clearance of 1000mm to enable wheelchair access and walker access. > > 2. Remove load bearing hallway wall* to increase circulation space and enable door to be widened to enable wheelchair access and walker access. > > 3. Install steel support load-bearing beam in ceiling. > > 4. Supply and fit an automated swing door with button located on right when entering at a height of 1000mm from finished floor to enable independent access and egress from home environment. > > 5. Match flooring and flooring height where wall has been removed. > > 6. Remove bulkhead between kitchen and lounge room. > > 7. Move electricals to suit, as per Electrician's instructions and AS/NZ 3000 (2018). > > 8. Fix concrete at entrance to ensure a level access at front access. > > 9. Add robust wainscotting to all walls to reduce risk of future damage to modified areas.

5. Further, Dr Hammill refers to the Liveable Housing Guidelines that an accessible home should:[44]

- have a safe, continuous and step-free path of travel from the street entrance or parking area to a dwelling entrance that is level, and > > - there should be at least one level entrance into the dwelling, and > > - that internal doors and corridors should not impede movement between spaces.

6. With respect to the rear access, Dr Hammill states that MXYF's walker does not fit through the rear access door; that he is still using paediatric equipment and his teenage and adult mobility devices will not fit through the rear door and that MXYF is experiencing occupational deprivation by not being able to enter through the same points of the home as his siblings when playing in the backyard,. She recommends:[45]

1. Remove the glass windows in the dining room and brickwork > > 2. Install a 2200mm W x 2100mm H sliding door length of wall > > 3. Install a threshold tyrex wedge ramp width of sliding door opening. > > 4. Add robust wainscotting to all walls to reduce risk of future damage to modified areas.

7. Dr Hammill makes recommendations for the internals of MXYF's home. Regarding MXYF's bedroom, she identifies the following issues:[46]
   1. [MXYF's] doorway is too narrow to fit mobility devices through impacting his ability to build his lower limb body strength by walking.
   2. [MXYF] will not be able to access his bedroom when he is dependent on his power wheelchair as he ages.
   3. The existing shower commode will not fit through the bedroom door, impacting where [MXYF] can be dressed now that he is becoming too big and heavy to be carried and placed on bed.
   4. The doorway is not large enough to fit a hoist through once [MXYF] requires hoisting when he is too large to be lifted by his father for self-care and sleep occupations.
8. She therefore recommends increasing the door opening to MXYF's room, changing the door to a sliding door, and adding robust wainscotting to walls to avoid risk of future wall damage.
9. Regarding MXYF's living area, Dr Hammill identifies the following issues:[47]
   1. The lounge room entrance is too narrow for [MXYF] to mobilise in using his walker.
   2. The lounge room entrance is too narrow for [MXYF] to mobilise in using his wheelchair.
   3. [MXYF] can only crawl or be carried to enter or exit from the lounge room.
   4. [MXYF] will continue to require ongoing mobility equipment, including a power wheelchair in the near future, and the existing access to the lounge room will not be wide enough.
   5. Even if low cost environmental changes occurred, the doorway would still not meet AS1428.9 for minimum access door width, which becomes increasingly important as [MXYF] continues to grow and starts to need adult-sized equipment over paediatricsized equipment.
10. Dr Hammill therefore recommends:[48]
    1. Remove the lounge room/hallway wall to enable front access to be widened and increase lounge room circulation space.
    2. Remove bulkhead between kitchen and lounge room.
    3. Install steel support load-bearing beam in ceiling.
    4. Match flooring and flooring height where wall has been removed.
    5. Move electricals to suit, as per Electrician's instructions and AS/NZ 3000 (2018).
    6. Paint as required.
11. Regarding MXYF's hallway area, Dr Hammill identifies the following issues:[49]
    1. The hallway is too narrow for [MXYF] to use his mobility devices in.
    2. The hallway is too narrow for [MXYF] to access his parent's room with mobility aids in case of emergency.
    3. [MXYF] will continue to require ongoing mobility equipment, including a power wheelchair in the near future, and the current hallway is not large enough to accommodate this.
12. Dr Hammill therefore recommends:[50]
    1. Remove the lounge room/hallway wall to enable front access to be widened and increase lounge room circulation space.
    2. Install steel support load-bearing beam in ceiling.
    3. Match flooring and floor height where wall has been removed.
    4. Move bulkhead in kitchen and lounge room.
    5. Move electricals to suit, as per Electrician's instructions and AS/NZ 3000 (2018).
    6. Paint as required.
13. Regarding MXYF's toilet area, Dr Hammill identifies the following issues:[51]
    1. The current doorway's of the toilet and bathroom are not wide enough for [MXYF's] mobility aids, or his tilt-in-space commode.
    2. The current layout is not functional for [MXYF] or his carers to enable him to safely complete his self-care tasks due to it's limited circulation space and lack of accessible design.
    3. The current bathroom does not enable use of the tilt-in-space commode previously purchased by the NDIS.
    4. The current bathroom poses significant manual handling risks to [MXYF's] parents and support workers.
    5. The current bathroom enables [MXYF] to self-harm through headbanging in the bath.
    6. The current toilet is not large enough to wheel a commode in and out to complete toileting tasks, resulting in [MXYF] remaining in incontinence pads.
    7. The current bathroom and toilet do not meet the AS1428.1 (2021) or the Australian Liveable Housing Guidelines.
14. Dr Hammill makes recommendations to the new bathroom design and specifications to these issues respectively.[52] Her report does not identify any issues with or recommendations to the laundry and the kitchen in MXYF's home.

1. Dr Hammill also provided answers to targeted questions, which are before the Tribunal.[53] The letter addresses minor changes to the positioning of the toilet and shower recess in her recommendations.

1. Mr Morris was briefed by the Agency on 10 October 2024,[54] and assessed MXYF at his home and provided a report to the Tribunal dated 21 November 2024.[55] Mr Morris took MXYF's physical disabilities, and all the information provided by the Agency into account in his assessment. The briefed information included a letter[56] and a Complex Home Modification Assessment form[57] completed by Occupational Therapist Katherine Hammill dated 27 September 2024 and 20 May 2024 respectively.[58]
2. The Agency contends that as Mr Morris was the only occupational therapist who was available to be cross-examined, his report should be given weight where there are divergences of opinion between the occupational therapists.
3. Mr Morris' report in relation to MXYF is summarised below.
4. Due to his disabilities, MXYF presents with:
   • Dystonic muscle movements
   • Impaired fine motor and gross motor function, coordination and control.
   • Contractures in his knees and ankles
   • Significantly impaired balance (unable to stand unsupported)
   • Limited core strength and postural control (requires supportive seating system)
   • Fatigue and limited task endurance
   • Choking risk (does not chew his food)
   • Non-verbal communication (uses vocalisation and gestures). Use of Augmentative and alternative communication (AAC) aids has yielded mixed results and is not consistent.
   • Difficulties following instructions
   • Cognitive impairment (i.e. concentration, problem solving, decision making etc.)
   • Sensory seeking behaviour
   • Challenging behaviours (aggression, self-harm, hitting others etc.)
   • Incontinent of bladder and bowel (uses continence aids).

1. MXYF's mobility was observed by Mr Morris as follows:
   • Indoors - MXYF is unable to stand and walk without assistive aids or high level of physical support from an attendant carer; mobilises by crawling, primarily by his upper limbs; MXYF's mobility is restricted due to:
     • Narrow pathways of travel throughout the home difficult for mobility aids to negotiate
     • Narrow doorways which are difficult or not possible for mobility aids to negotiate
     • Furniture within the home impeding clearance spaces
     • MXYF's inadequate control or competency using his mobility aids
     • MXYF unable to frequently follow instruction or solve problems (i.e. how to adjust angle of approach to access the door opening).
     • MXYF's limited awareness of safety hazards.
     • Manual Wheelchair dimensions logistically able to negotiate most existing pathways of travel MXYF's physical and cognitive impairments impact his competency using his wheelchair indoors.
     • Posterior walker dimensions logistically able to negotiate most existing pathways of travel MXYF's physical and cognitive impairments impact his competency using his wheelchair indoors.
     • Lifton Stander: MXYF would be unable to mobilise indoors due to the footprint of the Stander, his limited control and capacity to negotiate narrow clearances.
   • Handheld support - MXYF is only able to walk short distances on level surfaces when assisted in this way.
   • Outdoors - MXYF able to use:
     • Manual Wheelchair to mobilise
     • Posterior walker (Crocodile Posterior Walker) for short distances in the back yard; MXYF would struggle to use up and down ramps; MXYF would require 1:1 standby supervision to provide physical assistance during ascents and descents and monitor pathway of travel for safety risks and hazards.
     • Rifton Stander: MXYF able to use; needs full physical assistance to be lifted and strapped onto it.
     • Stairs: MXYF unable to use and would need to be carried.
   • Mobility Aids
     • Ankle-Foot Orthoses (AFOs): used on both ankles to prevent contractures; assists MXYF to stand (with full physical assistance) and improve his gait
     • Zippie Zone Manual Wheelchair: provides MXYF with capacity to self-propel outdoors but unable to do so with great control
     • Crocodile Posterior Walker: MXYF uses to mobilise but has difficulty controlling it and negotiating environments that are clear of hazards due to his motor function impairments.

1. With respect to home modifications, Mr Morris recommended the rear of the property as the main home access point to meet the functional needs of the Applicant and represent value for money:

It is possible to modify either the front or rear access points to be used as [MXYF's] primary home access. As per the NDIS Home Modifications Guidance for Builders and Designers Section 6.1 the NDIS may widen one external door, usually the main door or door linked to the external continuous pathway of travel. > > Front access can be modified and would provide the most direct route if used as primary home access. However, the only viable way to widen the front door would result in the need to remove part or all of the shared living room and hallway wall resulting in significantly high-cost structural works as this wall has reportedly been identified to be a load bearing wall. > > Rear access can also be modified and used as primary home access at a substantially lower cost, however this would require [MXYF] to access one of the side bilateral swing gates and negotiate the side paths to the rear of his home. > > Both side passages are concreted and free from obstacles. This access would require a longer pathway of travel, and potential expose [MXYF] to adverse weather elements for a longer period of time, however walkway coverage (i.e. awning) could be installed and remain at significantly lower cost that the structural reinforcement required for front access modifications.[59]

2. Of the rear work options, Mr Morris considered the following modifications in light of representing value for money, facilitating access in and out of the property, and provision of an accessible path of travel to access the front area of the home:[60]
   • existing rear/laundry access (not viable)
   • convert existing dining room window to rear access opening by increasing the window dimensions to 2200mm x 2100mm and installing a sliding glass door as per the recommendation in the complex home modification report dated 20/5/2024 (not viable)
   • convert existing dining room window to rear access opening by increasing the window dimensions to 2000mm x 2100mm and installing a sliding stacker door (OT recommendation).
3. Mr Morris noted that 'if rear access was modified, it would be suitable for use as the primary access point to the residence'.[61]
4. Mr Morris provided evidence as to an alternative approach to previous occupational therapists, as being an extension to the home. He considered this as a viable option as MXYF's 'bedroom will be too small to accommodate adult sized assistive aids and sufficient circulation space for the provision of assistance with attendant care'. As such he explored alternative options that would address MXYF's long-term disability, equipment and attendant care needs, as follows:[62]
   • Relocation to a more accessible or more easily modified residence (considered)
   • Extension to the residence (viable option).
5. Mr Morris' recommendations in summary are that 'Minor Modifications would not be sufficient in improving access to the residence,'[63] and that an itemised minimum disability-specific modifications recommended for external and internal access to meet MXYF's current and long-term functional needs are:[64]

• Accessible primary entrance: > > o Provide stepless access into/out of the residence > > o Provides clearance of 1000mm (should [MXYF] develop greater competency with his mobility aids, he would be able to navigate doors with narrower clearance spaces) > > • If the NDIS were to consider that [MXYF] require a safe secondary access point-and accessible secondary access point. > > o Provide stepless access into/out of the residence > > o Provides clearance of 1000mm (should [MXYF] develop greater competency with his mobility aids, he would be able to navigate doors with narrower clearance spaces) > > • Accessible bedroom > > o Dimensions of the bedroom provide sufficient circulation space to accommodate his bed, mobility aids (current and future) and attendant carers > > o "H-tack" ceiling hoist > > o Provides access doorway with clearance of 1000mm (should [MXYF] develop greater competency with his mobility aids, he would be able to navigate doors with narrower clearance spaces) > > o Level access with adjoining room > > • Accessible bathroom > > o Dimensions of the bathroom provide sufficient circulation space to accommodate personal care aids and attendant carers > > o Features level access shower recess with dimensions that accommodate personal care aids i.e. shower commode. > > o Disability accessible toilet > > o Wheelchair accessible basin > > o Provide stepless access into/out of the bathroom access > > o Provides doorway clearance of 1000mm (should [MXYF] develop greater competency with his mobility aids, he would be able to navigate doors with narrower clearance spaces) > > • Accessible living area > > o Dimensions of the Living area that provide sufficient circulation space to engage in social tasks with family and friends. > > o Provide stepless access into/out of the living area > > • Accessible pathway of travel between these areas including doorways > > o Provide stepless access > > o Provides clearance of 1000mm (should [MXYF] develop greater competency with his mobility aids, he would be able to navigate doors and pathways of travel with narrower clearance spaces)

1. Ms Felstein is the author of multiple reports before the Tribunal, including functional capacity assessment reports of the Applicant dated 21 May 2024[65] and 9 November 2023;[66] a Manual Handling Plan dated 11 October 2024;[67] an assistive technology template dated 10 February 2025;[68] an undated supporting letter for AT;[69] and a Mid Cost Assistive technology summary report dated 6 January 2023.[70]

1. This is the most recent functional capacity assessment by Ms Felstein on the Tribunal file.[71]
2. Ms Felstein first assessed MXYF on 30 March 2022 after a referral from the Applicant's Support Coordinator and has provided ongoing services for MXYF since in the home and school environment.
3. In summary, relevantly the report provides an overview of the Applicant's current function and recommends MXYF receives:
   • increased daily support worker funding, for 3 hours in the morning, and 4 hours in the evening, to meet the additional needs of [MXYF] and reduce the risk of caregiver burnout.
   • funding for in-home overnight respite 1x per week, to allow the Applicant's Mother to meet her own sleep needs
   • continued daily support worker assistance to practice walking in his walking frame in his surrounding environment
   • ongoing occupational therapy for capacity building in self-care tasks, to support him in developing skills to contribute to bathing, dressing, feeding and drinking, and grooming; and to support initiating toilet training should home modifications occur
   • support worker assistance when accessing the community to ensure he can receive 1:1 supervision, and reduce the risk of injury, noting that MXYF's parents are unable to provide this 1:1 level of support due to the caring responsibilities to 4 other siblings, thus requiring formal support
   • increase in Core funding for increased support worker assistance during the school holidays, to ensure MXYF can attend community outings to recreational and social settings
   • continued 1:1 support worker assistance in the afternoons for community outings and walks to ensure MXYF's safety and support his navigation / mobilisation
   • increased support worker funding on weekends, to provide MXYF access to formal 1:1 support that allows him to attend community activities with his family.
4. With respect to an assessment of MXYF's home environment, the report opines:
   • current doorway current doorway and internal access significantly restrict MXYF's access and independence throughout his internal and external home environment, by preventing him from using his mobility aids through the doorways or within the home
   • MXYF and his caregivers are at increasing risk of injury as he continues to grow, due to the continued need to carry him despite his increasing size and weight
   • the limited space for use of assistive technology poses a safety risk to MXYF, his parents and carers, as they are required to complete transfers manually, causing repetitive physical exertion and muscle strain.
5. MXYF relies on this report.

Quote for accessible apartment, Quest Apartments

1. MXYF relies on a quote for accessible apartments from Mr Butt from Quest Apartments.[72] This is relied on for Support 6, which is for the purpose of accommodation during home modifications.

1. The Applicant provided the Tribunal with a letter from Barnados dated 19 July 2024.[73] It outlines the following:
   • MXYF currently participates in the following: Saturday groups, which includes activities such as swimming, going to restaurants, park visits. MXYF has also attended the school holiday program, which included the same activities
   • MXYF has been attending Barnados for 12 months, but they have seen less of him 'due to funding issues'; MXYF is supported at a 1:1 ratio
   • Concerns about carer burnout for the Applicant's Mother
   • MXYF has a cheeky personality and tests boundaries at times; without the support of his NDIS plan he 'would be at risk of withdrawal and without inclusion that would appear discriminatory'.[74]

1. MXYF currently receives transport funding of $1,784.00 per year which is self-managed and is a stated support.[75] This means that MXYF can use this transport funding however he chooses.
2. MXYF seeks level 3 transport funding and states the reasons include 'severe limitations in [MXYF's] mobility, requires wheelchair accessible transport, which the family do not have, and he is at significant safety risks in public spaces'.[76] The Applicant submitted that MXYF 'relies on alternative modes of transport, such as, private cars with assistance (as [MXYF] grows, this will be unsustainable due to manual handling and inability to lift [MXYF] into the family car)'.[77]
3. The Respondent submitted that the reasonable and necessary supports under this head is funding consistent with level 2 funding.
4. The Transport Funding Operational Guidelines provide:

Level 1 - The NDIS may provide $1,784 per year for participants who are not working, studying or attending day programs but are seeking to enhance their community access. > > Level 2 - The NDIS may provide $2,676 per year for participants who are currently working or studying part-time (up to 15 hours a week), participating in day programs and for other social, recreational or leisure activities. > > Level 3 - The NDIS may provide $3,456 per year for participants who are currently working, looking for work, or studying, at least 15 hours a week, and are unable to use public transport because of their disability.

5. The Transport Operational Guidelines also provides for exceptional circumstances, where:

participants may receive higher funding if the participant has either general or funded supports in their plan to enable their participation in employment.

6. I note and accept the Applicant's evidence that he has applied for taxi vouchers under the NSW taxi subsidy scheme but has not used it, which the Applicant's Mother accepted in her oral evidence. I note also that the school provides transport to and from school, via a wheelchair accessible vehicle.[78]
7. The Applicant submitted they understood that their vehicle could not be modified due to its age and therefore applied for transport funding to access wheelchair accessible taxis to transport MXYF to appointment, family functions and other community events. In their closing submissions, the Applicant submitted:

The manual handling for family and supports, is 2:1, this is harder with lifting [MXYF] in and out of the current family car, LOV G10 Van - non-modified. If the whole family attends an event this does not allow for any of [MXYF's] Assistive Technology, wheelchair or walkers to be taken in that vehicle.[79]

8. I accept the Agency's contentions that the Applicant has not made a request for modifications or assistive aids for the car.
9. Schedule 2 states the following is not a NDIS Support:
   1. Transport for children as part of their reasonable care and support provided by families and carers
   2. Vehicles, mechanical repairs and similar running costs.
10. Schedule 1 states the following are NDIS Supports:
    1. Supports which provide transport assistance to participants that cannot travel or use public transport independently, including support
       1. For the purpose of community-based activities, school or education
       2. Costs associated with the use of taxis or private transport
    2. Vehicle modifications, being either assistive products or modifications to help enter, exit or ride safely, and including:
       1. Passenger and wheelchair hoists
       2. Modified restraints and car seats.
11. I note the Agency's contentions that Level 2 transport is a reasonable and necessary support for the Applicant. I am satisfied, after considering the evidence before the Tribunal and with regard to s 34 of the NDIS Act, that this was an appropriate concession for the Agency to make.
12. I accept the Agency's contentions that without knowing what the additional requested money will be spent on, it is not possible to be satisfied of the s 34 criteria or that the funding is reasonable and necessary.
13. I accept the Applicant's Mother's evidence regarding MXYF's need for an accessible vehicle that can carry a wheelchair so that MXYF can access more locations safely. However, I give greater weight to the Agency's submissions that there is insufficient evidence on which to assess the reasonable and necessary criteria under s 34(1) of the NDIS Act for the additional amount. On the evidence before the Tribunal, I am not satisfied the requested additional amount is not for MXYF's transport as part of his reasonable care and support provided by his families and carers, pursuant Schedule 2. Therefore, s 34(1)(f) is not met with respect to Level 3 transport funding.
14. The support of Level 2 transport funding can be included in MXYF's statement of participant supports as a reasonable and necessary support.

Support 2 - Short-Term Accommodation (STA) / Respite

1. MXYF is currently funded for up to 28 days of 1:2 short term accommodation, comprised of 20 weekdays, 4 Saturdays and 4 Sundays, to 'try things, build new skills, or give informal supports a break. Short term accommodation is for at least one night away from home in a centre or group residence. Short term accommodation is usually all inclusive.' [80]
2. The Applicant seeks 21 days or respite care at 1:1 ratio.
3. The Agency contends that 28 days at 1:2 ratio (equivalent to 1:1 ratio for 14 days) is the maximum that could be considered reasonable and necessary.
4. The Operational Guideline NDIS - Operational Guideline - Short-Term Accommodation or Respite, 24 June 2022, outlines that STA including respite, is a funded support for a time when a participant needs to live out of home for a short period and may be used for respite to support the participant and the participant's carers. The purpose is to give carers a break from their caring roles and to allow the participant an opportunity to try new things or develop skills or make new friends.
5. MXYF relies on the OT reports of Mr Felstein and Mr Morris in his request for STA. I accept the Applicant's Mother's submissions that 'respite is essential for maintaining my ability to provide ongoing, high-quality care while ensuring [MXYF] has access to supported, in a safe environment, where he can develop skills, try new things and participate in the community in other ways'.[81]
6. At the hearing, it became clear that the Applicant requested STA/respite for several reasons, including:
   • An emergency fund where the Applicant's Mother needed to be absent
   • To use for emergencies where MXYF must be left at home, such as when she or a sibling is in hospital
   • For days when her sleep disturbance has affected her more than usual.
7. I accept the Agency's contention that only the last of these three is for a respite purpose and that it is not appropriate for the NDIS to provide participants with an 'emergency' fund.
8. I accept that the Applicant's Mother is under considerable strain as MXYF's primary carer, due in part to the Applicant and also due to her responsibilities to care for her other children, including MXYF's twin who is also a NDIS participant. However, I give greater weight to the Agency's contentions that the Tribunal is to exercise restraint in providing respite to avoid duplication and taking into account the expected burden of caring for a family of 7, where the Applicant's Father works long hours.
9. I accept the Agency's contentions that the primary purpose of STA is for situations where the participant or informal carer need to be away from the usual living arrangements for a limited amount of time for reasons such as respite or giving informal carers a break. I find that developing skills and making new friends are of an ancillary benefit because there are other supports available to MXYF to develop social interaction through assistance in accessing social and recreational activities.
10. As to the ratio of care, I accept the Agency's position that the NDIS will generally fund up to 28 days of respite care at 1:2 ratio as indicated in the Operational Guideline and that the evidence provided by the Applicant does not assist me to determine whether the requested increase in support is reasonable and necessary according to the statutory criteria.
11. I note that the Applicant has had funding for STA support and has not previously used it.
12. I accept that taking a wholistic approach, a period of 28 days at 1:2 ratio is the maximum that is reasonable and necessary, which can be used flexibly at the more intense rate of 1:1 for 14 days.
13. While STA is necessary to address the needs of MXYF arising from his impairments, I am not satisfied the additional requested level of STA, at a 1:1 ratio is necessary having regard to the previously unused funding and the strain on the Applicant's Mother due to the additional strain of having four other children; the indication the intention of the Applicant to build the support up for emergencies and the newly added STA supports to the Applicant's plan.
14. On the evidence before the Tribunal, I find that the STA funding in the Applicant's new plan as a reasonable and necessary support should be sufficient in meeting the Applicant's respite needs.
15. I am not satisfied that the Applicant's requested support for the increased STA is necessary to address his needs from the impairments for which he met the disability requirements pursuant to s 34(1)(aa) of the NDIS Act. It is not necessary for me to proceed to consideration of the remaining mandatory criteria under s 34(1) of the NDIS Act.
16. I note that it is available to the Applicant to request a change to this support should the recently added STA prove to be inadequate towards addressing the Applicant's needs.

1. MXYF is currently funded 4 hours per day with daily life, for 48 weeks per year, at a 1:1 ratio (daytime) at the higher intensity rate, Monday to Sunday including public holidays.
2. The Tribunal notes that these supports were included in the Applicant's current plan on 16 May 2025, after agreement was reached between the parties at the conclusion of the evidence at the hearing.
3. The Applicant's closing submissions indicate two conflicting requested amounts - 7 hours per day and 6 hours per day respectively - at the high intensity rate, 'as a reasonable and necessary response to the participant's functional impairment and disability-related needs'.[82]
4. On 14 July 2025, the Applicant filed with the Tribunal a Proposed Decision, which indicates that 7 hours of daily support at the high intensity rate is what is sought.
5. The Applicant contends 'this level of support allows [MXYF] to be cared for safely, maintain his current level of function, and work toward his developmental and independence goals in a way that is sustainable for both [MXYF] and his family.'[83]
6. The Agency contends that 4 hours per day is the reasonable and necessary support under this head. This is agreed at the 'high intensity rate'. Further, the 4 hours per day takes into account and balances:[84]

(i) The reasonable expectations of parents to provide substantial care and support for their children, particularly at primary school age > > (ii) The role of daily supports, and concurrent increase in respite and community access support hours > > (iii) [MXYF's] need for direct 1:1 assistance for activities of self-care > > (iv) The lack of evidence of the marginal benefit for additional hours > > (v) The financial sustainability of the scheme.

7. In cross-examination, the Applicant's Mother was asked to specify what the additional 3 hours sought would be used for. The Tribunal accepts that the Applicant's arguments were advanced before the support of 4 hours of Assistance with Daily Life, 48 weekends per year, 1:1 ratio (daytime), higher intensity rate, Monday to Sunday including public holidays, was added to the Participant's plan in May 2025.
8. I accept the Agency's contentions that the basis on which the Applicant states that 4 hours per day of support is inadequate is presently unclear.
9. With respect to an increase from 4 hours per day to 7 hours per day at the high intensity rate, I find that s 34(1)(aa) and (a) of the NDIS Act are met. I am not satisfied that s 34(1)(c) is met.
10. Having considered the evidence and the relevant Supports Rules and Guidelines, the Tribunal is satisfied that the Applicant now has a comparable support which would achieve the same outcome at a substantially lower cost, per Rule 3.1(a) of the Supports Rules and that there is no probative evidence that the additional 3 hours of support will substantially improve the life stage outcomes for the participant, per Rule 3.1(b).
11. Section 34(1)(c) of the NDIS Act is therefore not met with respect to the requested support.
12. I note that it is open to the Applicant to seek an increase in daily support hours should these be found and evidenced by the Applicant to be inadequate.

1. The Applicant is currently funded for 2 hours each Saturday and 2 hours each Sunday, 48 weeks per year for Assistance with Social, Economic and Community Participation. MXYF is also funded for 4 days per week, 10 weeks per year Group Activities - High Intensity - Weekday daytime at a 1:3 ratio.
2. As with Support 3, relevantly, these supports were included in the Applicant's plan on 16 May 2025, after agreement was reached between the parties at the conclusion of the evidence at the hearing and before closing submissions.
3. The Applicant seeks social and community access support during school holidays and after school/weekends. Specifically, the Applicant sought funding for specific programs, having had experience with Barndaos, the Barnardos Saturday program and Barnardos holiday program, to cover the full number of holidays per year.[85]
4. Schedule 2 prevents the NDIS from funding school holiday programs. Schedule 1 allows funding for group programs, and for assistance to access the community. The Tribunal accepts that support sought and provided of that nature, or for that purpose, is a NDIS Support.
5. The Applicant's Mother provided a quote from Barnados, which she gave evidence was in response to the Agency's request for an example of a program MXYF could participate in. I accept that the support sought is for MXYF to access the community.
6. The Applicant also relies on the occupational therapy assessment by Ms Feldstein.[86]
7. The Agency contends that the following represents the reasonable and necessary level of support for weekend and school holiday activities and care (in addition to the 4 hours per day of support with daily activities):

(i) 2 hours each Saturday and 2 hours each Sunday, 48 hours per year, for Assistance with Social, Economic and Community Participation, and > > (ii) 4 days per week, 10 weeks per year, Group Activities ‑- Standard - Weekday daytime 1:3 ratio.

8. I accept the Agency's contentions that there is no clinical or therapeutic basis for the number of days provided in the Barnardos quote and that Ms Feldstein did not recommend a holiday program of the kind sought. This was put to the Applicant by Counsel in cross-examination and the Applicant's Mother accepted that the number of days sought, and the 1:1 ratio was her suggested amount.[87]
9. I accept the Agency's contentions that the ratio nominated by a particular program, in this case Barnados, is not binding on the Tribunal. I also accept the Agency's contention that MXYF 'appears to receive group support at school and is able to be supervised at home by his parents'.[88] At the hearing, the Applicant's Mother gave evidence as to how she cares for and attends to MXYF's needs with her other children present.
10. Based on the evidence before the Tribunal, I cannot be satisfied that the reasonable and necessary support during the weekends and school holidays must be calculated at a 1:1 ratio in group care.
11. Having considered the evidence and the relevant Supports Rules and Guidelines, the Tribunal is satisfied that ss 34(1)(a)-(d) are met.
12. The Tribunal is not positively satisfied that s 34(1)(e) is met with respect to the additional requested ratio of support in that in does not take into account what it is reasonable to expect families, carers, informal networks and the community to provide.
13. The requested additional support therefore cannot be included in MXYF's statement of participant supports as a reasonable and necessary support.

1. The Applicant seeks complex home modifications to make the house accessible for him and his assistive technology devices.
2. The Agency considers the following complex home modifications are reasonable and necessary:

a) Bathroom modification as requested. > > b) Rear access: modification including new sliding door and ramp. Note that door dimensions would need to differ from treating OT recommendations, an alternate door type (sliding stacker door) is likely to be a more suitable option, and a step or threshold ramp would also be required. > > c) Front access: Fix external concrete at entrance to ensure a level access at front access and wainscotting to reduce risk of future damage. Rigid vinyl recommended as suitable material for wall protection. > > d) Bedroom: door widening to 1000 mm, wainscotting to reduce future damage and H-track ceiling hoist. Rigid vinyl recommended as suitable material for wall protection. > > e) Living area/Hallway: wainscoting to reduce further damage. Rigid vinyl recommended as suitable material for wall protection.

3. The Agency contends the following complex home modifications are not reasonable and necessary:

a) Bathroom: nil > > b) Rear access: rear gate access automation > > 1. The Agency relies on the opinion of Michael Morris, including that the rear gate would not be able to be used independently by the participant, such as to make gate automation a reasonable and necessary modification for the participant's disability-related needs. As the applicant would be in the presence of a support person at all times, who would operate the gate, automation of that gate is not a disability-related modification, and does not represent value for money.

1. Front Access: Door widening and removal of load bearing wall 1. The Agency considers that the modification of one entry point to the house to ensure safe and accessible entry and exit for that participant is reasonable and necessary. The Agency contends that the second entry point being the front door, is already suitable as an emergency egress point, providing 770mm width at the door. The significant modifications required to make the front door to be the primary access point are a high cost and requiring significant structural changes, not representing value for money.

d) Bedroom: nil > > e) Living area/Hallway: removal of load bearing wall > > 1. As above, the Agency will fund the modification of the rear access to the home, but not the removal of the internal load bearing wall.

4. There are multiple options for complex home modifications presented to the Tribunal. All options include modifications to the bathroom and widened access to MXYF's bedroom.
5. There is also an additional proposal for an extension before the Tribunal. The Applicant contends that the extension is the viable and preferred option.[89]
6. The Agency contends one access point to the house is sufficient, whereas the Applicant relies on Ms Bourke's report to argue that two access points are necessary.
7. The Agency opposes modifications to the front access on other grounds. This will be addressed below.
8. The 'complex home modifications' that are in issue are the rear access; automation of the rear gate; front access including door widening; and the removal of the living room load bearing wall, bedroom and bathroom.

Section 34(1)(f) - whether the requested support is a NDIS Support

1. The Agency submits that the modifications to the home to provide a rear entrance or front entrance, accessible bathroom and widened access to MXYF's bedroom are:
   1. Specific to MXYF's disability-related needs
   2. Recommended to help him to live more safely and independently at home
   3. The wainscotting work is needed to prevent damage from his assistive technology.
2. The Tribunal accepts that the modifications are NDIS Supports, within the meaning of s 34(1)(f). The home modifications are not excluded by Schedule 2 and are within Item 22 of Schedule 2.
3. The Agency contends that there are a number of potential uncertainties with respect to the option for an extension. These include the absence of plans and structural assessments. There is no assessment of the impact of these works on the other children in the home, and thus it is not known whether changes will have to be made or whether it will have any unintended consequences.[90]
4. I accept the Agency's contentions that the Tribunal cannot be satisfied at this time in respect of Schedules 1 and 2 pertaining to the proposed extension. Having regard to uncertainties around the extension and lack of probative evidence, the Tribunal is satisfied the extension is not a NDIS support.
5. Now that the remaining home modification proposals - namely the front access; living room and removal of load bearing wall; rear access; bedroom; and bathroom - have been found to be a NDIS Support, the Tribunal's task is to determine whether the requested support of the remaining complex home modifications sought are reasonable and necessary pursuant to the remaining statutory criteria under s 34(1) of the NDIS Act, having regard to the NDIS Rules and Operational Guidelines.
6. Even if the criteria in s 34 are met, the Tribunal will need to be satisfied that the proposed supports accommodate the Applicant's particular impairments and assist MXYF to be a participating member of the Australian community, based on the values set out in the objects and guiding principles of the NDIS Act.

1. The Agency contends that rear gate access automation is not a reasonable and necessary support. The Agency relies on the opinion of OT Mr Morris, including that the rear gate would not be able to be used independently by the participant, such as to make gate automation a reasonable and necessary modification for the participant's disability-related needs.
2. The Tribunal accepts the Agency's contentions that as the Applicant would be in the presence of a support person who would operate the gate, at all times, automation of that gate is not a disability-related modification and does not represent value for money. The Tribunal accepts the Agency's contentions that as the Applicant would be in the presence of a support person who would operate the gate at all times, automation of that gate is not a disability-related modification and does not represent value for money.
3. The Tribunal is not satisfied that the Applicant meets s 34(1)(aa) with respect to the automation of the rear gate.
4. Having considered the evidence, I am satisfied that the Applicant meets s 34(1)(aa) for the remaining proposed complex home modifications; namely, that they are necessary to address MXYF's needs arising from impairments in relation to which he meets the disability requirements.
5. I am also satisfied that the Applicant meets s 34(1)(a) that the remaining proposed complex home modifications will assist MXYF to pursue the goals, objectives and aspirations included in his statement of goals and aspirations.

**_Section 34(1)(b) - Support will assist MXYF to undertake activities

1. The complex home modifications to the bathroom and bedroom were not added to the Applicant's recent plan. However, there is no dispute between the parties as to the bathroom modifications requested.
2. There is no dispute between the parties as to the requested modifications to MXYF's bedroom and the bathroom. On its consideration of the evidence, the Tribunal finds that the proposed modifications to the bedroom and bathroom will assist the Applicant to undertake activities pursuant to s 34(1)(b) of the NDIS Act.

1. OT Mr Morris wrote, to 'access the rear access from the front of the property, [MXYF] would need his attendant carer to open the bilateral swing side gate to permit him access to the backyard side passage.'[91]
2. The Tribunal finds that MXYF will not be able to access front door or rear door independently, regardless of the complex home modifications that are funded.
3. The Tribunal finds that modifications to the rear of the home will facilitate MXYF's ability to undertake activities, particularly to be able to access his backyard using his mobility aids.

Front access, living area and hallway, including removal of load bearing wall

1. As above, the Agency contends that it will fund the modification of the rear access to the home, but not the removal of the internal load bearing wall.
2. The Tribunal accepts that MXYF is unlikely to hold a job or participate economically to society in the future, as assessed by OT Dr Hammill in May 2024.[92]
3. With respect to his independent access to the front door, Mr Morris stated, that as a result, Dr Hammill's recommendations may be more effective:

Given that [MXYF] would be unable to independently access the front door with his mobility aids (primary mobility aids would be his manual wheelchair and walker), the options proposed in complex home modification report dated 20/5/2024 may improve his capacity to do so by providing a larger allowance for error when negotiating the doorways. [93]

4. The Agency contends that as Mr Morris was the only OT who was available to be cross-examined, his report should be given weight where there are divergences of opinion between the OT reports.
5. The Tribunal gives weight to Mr Morris' assessment that Dr Hammil's recommendations as to the complex home modifications to the front entry may be more effective in assisting MXYF to undertake activities.
6. Occupational Therapist Ms Bourne stated that the front entry to MXYF's home is easier to access:

Front access Contains 1 step (approximately 150mm) between concrete pathway leading from the driveway to the front door. [MXYF] is only able to use this access point when pulled up the step on his wheelchair, when crawling, or when carried by his parents. This is [MXYF's] primary access point as it is easier for his parents to access the home from their parked car compared to the alternate rear access.[94]

7. The Tribunal is satisfied that widening front door access to enable MXYF to directly enter the home from the front using his mobility aids, when dropped off in the school bus or car, will facilitate the Applicant's ability to undertake activities.
8. The Tribunal finds that while in the home, MXYF can only participate mainly by crawling. This was raised in oral evidence and by multiple occupational therapists in their reports. Ms Felstein wrote:

Mobility: [MXYF] predominately crawls independently or self-propels his manual wheelchair (Approximately 30m) with supervision as his main form of mobility. [MXYF] requires physical assistance when using his manual wheelchair for long distances. It is important to note that due to the small circulation space in [MXYF's] home, he is unable to use the wheelchair around the house and therefore predominately crawls as he is unable to walk without assistive technology.[95]

9. Though MXYF is independent while crawling, this is expressly not recommended:[96]

[MXYF] crawls within his home independently. This is not a recommended method of mobility however, the only viable option within the small circulation space of his home preventing the use of his mobility aids (e.g. walker and wheelchair). [97]

10. As a result, Ms Felstein recommends that 'home modifications in [MXYF's] home is imperative to improve [MXYF's] physical access inside his home and reduce his dependence on crawling as a means of mobility as he grows.[98]
11. Ms Bourne describes MXYF as a 'mixed mobility user':

This means that he is able to walk short to medium distances using his Crocodile walking frame. When [MXYF] is provided with the option, he often elects to crawl and requires encouragement to use his walker. [MXYF] is unable to walk unaided and is unable to mobilise stairs. [MXYF's] parents reported they will often lift and carry him around the home when they are completing activities of daily living as [MXYF] has significant difficulty mobilising to all areas of the home with ease. Both parents reported to have sustained injuries to their back associated with lifting [MXYF]. OT Bourne opines this continues to pose a significant occupational health and safety risk and is not recommended [MXYF] is unable to use his wheeled mobility devices inside due to lack of circulation space.[99]

12. OT Ms Bourne emphasises the importance of MXYF using his wheelchair when engaging in peer activities as this will allow him to maintain a safe posture whilst participating.[100]
13. The Tribunal finds that the Applicant crawls inside his home as he is unable to use his Assistive Technology devices.
14. Regarding the Applicant's use of his Assistive Technology devices inside the home, OT Ms Felstein stated that MXYF is 'unable to use his walker inside his home, as it does not fit in the doorways, hallways and small circulation space within the home. As a result, [MXYF's] primary method of mobility within his home is crawling on the floor and furniture crawling.'[101]
15. Ms Felstein continued:

The internal of [MXYF's] house was observed to have small circulation space within each living space, as well as narrow hallways and doorways. [MXYF] is unable to utilise his wheeled mobility aids in the home, including his wheelchair and walker, due to insufficient circulation space. As a result, [MXYF] is required to crawl on the floor, or furniture crawl to move within his home. > > Modifications to the home including removal of the front hallway to provide an open plan living space were declined. As a result, [MXYF] is anticipated to continue to be unable to use his mobility aids in the home.[102]

16. Ms Felstein spoke to MXYF's inability to use his Assistive Technology devices in the home as a safety risk:

OT Felstein opines that the closed living spaces, narrow hallways and doorways, as well as numerous thresholds throughout the house significantly restrict [MXYF's] access throughout his internal and external home environment. As a result, greater demand is placed on [MXYF's] parents to support him while navigating these spaces throughout the day. Further, the limited space for use of assistive technology as listed above poses a safety risk to [MXYF], his parents and carers, as they are required to complete transfers manually, causing repetitive physical exertion and muscle strain. OT Felstein notes that home modifications to the bathroom and rear access have been approved, and opines this will greatly benefit [MXYF's] independence and safety within his home. Due to modifications to the front access and internal hallway being declined, OT Felstein opines that [MXYF] will continue to be unable to safely use his mobility aids within his home.[103]

17. MXYF's ability is also limited while crawling. This includes his ability to carry items, and MXYF 'is unable to carry items and will continue throwing items while having to continue to crawl. [MXYF] will be able to put light items in his lap to carry items when he is in a wheelchair.'[104]
18. Speaking to MXYF's future mobility needs, OT Ms Bourne states MXYF will become more reliant on assistive technology as he ages:

It is anticipated that [MXYF's] mobility will not improve and will continue to decline as per the progression of his diagnosis. It is likely that [MXYF] will be reliant on assistive technology for mobility within the future, including a scripted wheelchair and commode. The current home access and bathroom does not accommodate for the request aids due to limited circulation space.[105]

is also more likely to have decreased bone density and be at 4 times higher risk of falls than an adult without cerebral palsy. He is also likely to experience a major decline in mobility around 20-25 years due to a change in his crutch gait which results in inefficient walking ... > > This will mean that [MXYF] will become more reliant on assistive technology such as a power wheelchair for mobilising as he ages,[106]

20. Dr Hammill indicates that not being able to use his Assistive Devices will lead to deterioration in MXYF's mobility:

It is likely that [MXYF's] mobility will decline more quickly if he is unable to be correctly positioned through the use of a wheelchair and postural supports throughout the day, as is currently happening due to the limited circulation space in his home environment which restricts his ability to use his wheelchair. [107]

21. The Tribunal accepts this and finds that MXYF's mobility within his home cannot continue to depend on him crawling as this will limit his ability to participate and leads to further decline in his mobility.
22. Further, the Tribunal finds MXYF mobilising by crawling creates a safety risk both to himself and his carers. Carer strain is an important consideration in MXYF's ability to undertake activities. His mother is his primary carer and cannot be reasonably expected to continue to lift MXYF as a teenager and adult. The Tribunal gives weight to Dr Hammill's observation that the Applicant's:

transfers will not improve as he gets older. Research shows that his transfers and mobility are likely to decline between the age of 20-25, as previously mentioned. > > As a result, [MXYF] will continue to require maximal assistance to transfer, however the current transfer technique of lifting him is not appropriate due to his weight which is currently 20kg, which will continue to go up as he get gets older. [108]

OT Mr Morris states that MXYF is currently limited in accessing his home due to his competency in using his wheelchair indoors:

Although the dimensions of the manual wheelchair would logistically be able to negotiate most existing pathways of travel, his existing front access and bedroom door [MXYF's] physical and cognitive impairments impact his competency using his wheelchair indoors.[109]

Mr Morris further identifies MXYF's hallway accessibility issue and safety risks it creates:

Although logistically wide enough to accommodate [MXYF's] manual wheelchair and walker, due to his limited control and competency using his mobility aids, it is unlikely that the [MXYF} would be able to independently negotiate the hallway without running into the walls risking damage to himself, his equipment or the property.[110]

The Tribunal finds that facilitating MXYF's use of his Assistive Technology devices in his home will reduce safety risks by and through building his competence in using the devices. Mr Morris suggested that MXYF may benefit from further mobility training to use his mobility devices as often as competently as possible:

Ongoing physiotherapy may aim to improve [MXYF's] muscle strength, control and coordination, or prevent premature deterioration in his mobility, however, not to the extent that he would ever not require mobility aids (i.e. walker, wheelchair etc.) > > The mobility aids prescribed are appropriate, however, the OT (Michael Morris) would not consider [MXYF] to be a competent independent user of his mobility aids. Due to his coordination difficulties, cognitive impairments, difficulties following instructions and inability to identify safety risks, he would continue to require standby supervision at all times when using mobility aids. > > [MXYF] may benefit from further mobility training with the use of his scripted mobility aids.

The Tribunal accepts MXYF's expected use of his mobility aids in the long term and particularly as he transitions into adulthood. The Tribunal relies on the observations of Mr Morris:

It is expected [MXYF] will continue to require Assistive Technology for mobility, and that this needs to be considered in the context of his current age and future growth (i.e. The size/footprint of these mobility aids will change/increase).[111]

Speaking to whether there are certain devices which cannot access any internal or external areas of the home, Mr Morris states:

Although the doorways and hallways are logistically wide enough to accommodate [MXYF] current manual wheelchair and walker for a competent wheelchair or walker user, due to his limited control/accuracy of use of his mobility aids, it is unlikely that the [MXYF] would be able to independently negotiate doorways or hallways without running into the doorframe or walls risking damage to himself, his equipment or the property. > > With consideration to his future mobility aids, as [MXYF] grows, he will require larger equipment to accommodate for his anthropometrics. This will result in mobility aids (wheelchair, walker etc.) with larger footprints. It is unlikely that these mobility aids would be able to safely access the front access, rear access, front hallway or rear hallway (leading to the bathroom and bathroom) and internal bedroom and bathroom doors.[112]

Mr Morris was also asked to recommend Assistive Technology devices for MXYF's use as a primary mobility aid to enter/exit the home.

This OT (Michael Morris) would recommend that the manual wheelchair be used as the primary mobility aid in the community and used when entering and exiting the home. This aid features the narrowest footprint. > > However, as [MXYF] will continue to frequently use his walker to strengthen and improve control and coordination in his lower limbs external to his home (i.e. on the concreted areas of his home and when mobilising to the local park) and within his home, it is recommended that access point to the residence also accommodate the walker. It is noted that this mobility aid may also be [MXYF] preference as it is less restrictive as the walker does not use postural supports/straps and provides him with the opportunity to exit it more independently than the wheelchair. [113] > > However, this OT (Michael Morris) would recommend that [MXYF] receives further mobility training to development his competency using his mobility aids. Obtaining greater control of operating his mobility aids will reduce the margin of error he requires when negotiating doorways both at home and in the community.[114]

The Tribunal finds that the Applicant needs to use his walker to strengthen and improve his coordination and limb strength both outside and inside his home. 30. This is supported by OT Mr Morris' recommendation that MXYF 'receives further mobility training to development his competency using his mobility aids. Obtaining greater control of operating his mobility aids will reduce the margin of error he requires when negotiating doorways both at home and in the community.' [115] 31. Mr Morris' was asked to comment on the size of the existing home in relation to meeting the Applicant's long-term needs noting the Assistive Technology devices used by the Applicant. His answer largely addressed the size of the home in relation to the family's long-term needs, rather than the Applicant's. Mr Morris only addressed the size of MXYF's bedroom in this context. 32. The Applicant's mother gave oral evidence about the size of her house being suited to her family and that culturally, it is not perceived to be too small. The Tribunal accepts this view. For the purposes of my reasoning, I have put the larger family, specifically the needs of MXYF's siblings, out of my mind when assessing the cost effectiveness as against the outcomes of the proposed complex home modifications. 33. OT Ms Bourne's report stated:

The provision of the following modifications will promote [MXYF's] safety and reduce the risk of manual handling injuries as [MXYF's] parents will be able to support him in a safe environment with increased circulation space which will allow for the use of a scripted commode, powered wheelchair, and any future assistive technology. > > Additionally, the provision of complex home modifications to the access of the home and the bathroom directly relates to Goal Two of [MXYF's] NDIS goals. The access to [MXYF's] home currently has a narrow access point and a threshold step at the rear and a large step and narrow hallway at the front. This current layout does not allow [MXYF] to access his home safely and independently. [MXYF] is currently mobilising in a manual wheelchair when accessing the community. [MXYF] will be restricted due to the inappropriate access points at the front and rear of the dwelling.[116]

34. As a result, the Tribunal finds that not only maximising MXYF's access to (entry into and exit out of) his home but also his social participation within the home is important in facilitating his ability to undertake abilities, presently and in the long term.
35. The Tribunal further notes that facilitating the Applicant to use his paediatric and later adult mobility aids in his home will be complemented by the wainscotting to the living room and entrance, which accepted by the Agency.
36. The Tribunal also finds that the wainscotting of the living room as proposed by the Agency will be necessitated by the Applicant's ability to use his Assistive Technology devices in the living room.
37. Based on the evidence before the Tribunal, I am satisfied that widening the front access, modifications to the living area and removal of the load bearing wall will assist the Applicant to undertake activities, so as to facilitate his social and economic participation, s 34(1)(b) of the NDIS Act is therefore met for these complex home modification options.

Section 34(1)(c) and Rule 3.1 - Value for money

1. The Tribunal will now consider the value for money of the proposed complex modifications to the bathroom, bedroom, rear access, front access, living room and hallway of MXYF's home.
2. The NDIS Operational Guideline on Home Modifications state the home modifications 'need to be value for money compared with the benefits for you, and compared with other supports that would achieve the same outcome'.[117] Relevantly, to achieve this outcome, the Tribunal needs to think about:
   • If other similar options, like assistive technology or other modifications, could achieve the same outcome at a much lower cost
   • How your disability needs may change over time and if the home modification will help you in the long term
   • How long you plan on staying in your home, and if the home modification is good value for this length of time.
3. The Applicant's mother gave oral evidence about the size of her house being suited to her family and that culturally, it is not perceived to be too small. The Tribunal accepts this view. For the purposes of my reasoning, I have put the larger family, specifically the needs of MXYF's 4 siblings, out of my mind when assessing the benefits and outcomes of the proposals for home modifications.

Rule 3.1 (a) - Comparable supports would achieve the same outcome at a substantially lower cost

1. The Applicant asserts that the provision of enough circulation space and access for MXYF can only be achieved through the full scope of works proposed to the front and rear of the property including the extension.[118] The Applicant's evidence indicates that the reduced cost alternatives proposed do not achieve the same outcomes, but this is not addressed directly in the Applicant's closing submissions.
2. The Agency contends that rear access modifications is more cost effective. However, considered overall, when balancing cost effectiveness for a similar option that achieves same objectives, the Tribunal finds that the rear and front access are not mutually exclusive. Facilitating front access in addition to modifications to the living area is the preferable option. As pointed out by three of the occupational therapists on the file, this would address the Applicant's right to activities in and access to his rest and leisure place ‑‑- his home.
3. The Tribunal finds, the outcome sought for the Applicant is occupational justice. Three of the OTs on file have referred to the occupational deprivation experienced by the Applicant with the current design of the home. OT Ms Bourne defines occupational justice for MXYF:

Occupational Justice is a term used to describe a basic human right to have the opportunities and rights to participate in activities that define us an individuals, family and community members by providing meaning and purpose to our lives. [MXYF] being able to participate in activities in the backyard with his siblings and friends in a necessity in his physical and social development. At present, [MXYF] is unable to access the backyard. It is therefore, recommended that a level entry access is provided at the rear of the home to ensure occupational justice is achieved.[119]

4. Occupational deprivation was raised by OTs. Ms Bourne stated:

[MXYF] has three other siblings of various ages who enjoy partaking in age-appropriate games and activities. At present, [MXYF] is unable to access the back yard to participate in these activities due to no accessible rear access. Without an appropriate access, [MXYF] is experiencing occupational deprivation and is unable to develop his gross motor, fine motor, and social skills necessary to his age development.[120]

5. Independent OT Dr Hammill also spoke to the occupational deprivation faced by the Applicant:

[MXYF] is experiencing occupational deprivation as he is unable to use or access his home in the same way that his family can, limiting his participation in activities. [121] > > [...] > > Additionally, modifications are required to limit occupational deprivation within the home environment by increasing circulation space and enabling [MXYF] to access all parts of the home using both his wheelchair and his walking frame.[122] > > [...] > > [MXYF] is experiencing occupational deprivation by not being able to enter and egress through the same points of the home as his siblings when playing in the backyard.[123]

6. The Agency contends that the Tribunal is to give more weight to Mr Morris' evidence, where it diverges from that of Dr Hammill in particular, given he was available to be cross-examined at the hearing. The Tribunal gives greater weight to the observations of the OTs on the issue of occupational deprivation for the Applicant, in the absence of OT Mr Morris' consideration of it in his report.
7. At the conclusion of the closing submissions at the hearing, the Tribunal put the human rights of the Applicant to full access of his home to the Respondent. Counsel for the Agency stated:

You can see there that if the NDIS was to determine the secondary access is not required, removal of the shared hallway and living wall would have limited benefit compared with the significant costs incurred as the modification would not result in substantial improvements in life stage outcomes, improve his independence in accessing the home or reduce his need.[124]

8. The Respondent referred to OT Mr Morris' report in support of this position.
9. Mr Morris and the Agency appear to have given more weight to the value for money considerations, as opposed to the outcomes to be achieved. Mr Morris did not consider the issue of occupational deprivation faced by MXYF. The Tribunal accepts that the removal of the load bearing wall is more expensive. However, on balance, the Tribunal finds that the proposed home modifications are value for money towards achieving the outcome of occupational justice for the Applicant in his own home; this includes MXYF's access to his backyard, living room, hallway and his parents' room, is met by the proposed full suite of modifications (excluding automated side gate).
10. Further, the Tribunal departs from the Agency's conclusions in finding that the full suite of home modifications, including the removal of the load bearing wall, will have significant safety and developmental benefits for MXYF, justifying with the greater costs incurred. The modifications would result in substantial improvements in life stage outcomes, improve his independence in accessing the home or reduce his need to crawl. The Tribunal is satisfied that under Rule 3.1(a) is met and that comparable supports would not achieve the same outcome at a substantially lower cost.
11. Having considered the evidence and the relevant Support Rules and Guidelines, the Tribunal is satisfied that the requested suite of complex home modifications represents value for money in that the costs of the support is reasonable, relative to both the benefits achieved and the cost of alternative support pursuant to s 34(1)(c).

Rule 3.1 (b) - Evidence the support will substantially improve life stage outcomes and be of long-term benefit to MXYF

1. As detailed above, there is evidence from multiple occupational therapists as to the Applicant's need to use his Assistive Technology mobility aids within his home as he gets older. This will build competence and facilitate the use of his adult mobility aids as he transitions into adolescence and then adulthood.
2. The Tribunal notes that the modifications will be made to the home which the family owns, and that the family cannot afford to move into another home. The Tribunal is therefore satisfied with respect to the Operational Guideline on Home Modifications and that the home modification is good value for the indefinite length of time that the family intend to live there.
3. Further, in light of its consideration of the evidence above, the Tribunal is satisfied that consistent with the Operational Guideline, the suite of home modifications accommodates how his disability needs will foreseeably change over time and will help MXYF in the long term.
4. The Tribunal notes that should the needs of the growing family change, the Applicant's parents may wish to continue building the extension for which they have laid the concrete slab.
5. The Tribunal concludes that the Agency's proposal for a rear access modification in preference to the front access medication in combination with the hallway and living room modifications may achieve short-term benefits for the Applicant. The Agency's proposal of funding rear access widening instead of front access does not adequately capture the life course perspective of a child with disability transitioning into adolescence and soon adulthood, and his documented changing needs over time.
6. The Tribunal notes that, as per the Home Modifications Operational Guidelines, complex home modifications are 'likely to be value for money if [the Applicant] plan[s] to remain in [his] current house or [has] a lease for at least 3 years.' [125] The Tribunal finds that MXYF's family owns his home and do not seem able or willing to move anytime in the foreseeable future.
7. The Tribunal is of the view that the use of public funds is justified in that the modifications proposed are fit-for-purpose in the long term, as compared with the Agency-preferred more limited modifications that are designed to suit the 8-year-old Applicant as he was when he first applied for these supports.
8. The Tribunal is satisfied on the current evidence, that the provision of the proposed suite of complex home modifications will substantially improve life stage outcomes and be of long-term benefit to MXYF pursuant to s 34(1)(c).

Section 34(1)(d) and Rule 3.2 - Effective and beneficial

1. Rule 3.2 provides that in deciding whether the support will be, or is likely to be, effective and beneficial for MXYF, having regard to good practice, the Tribunal is to consider the available evidence of the effectiveness of the support for others in like circumstances. This evidence can include the lived experience of the participant or his carers.
2. The Tribunal has evidence before it of MXYF's lived experience of his limited mobility within his home, except by crawling, which is amply documented in the multiple occupational therapy reports on the Tribunal file. The Tribunal relies on its findings and assessment above.
3. The Tribunal has placed weight on the expert evidence before the Tribunal, under Rule 3. This includes the recommendations by independent OT Dr Hammill, of the need to ensure occupational justice through the removal of access barriers in MXYF's home, which would facilitate his use of his mobility aids. This was also supported by OT Ms Bourne, and independent OT Mr Morris in his expressed preference for Dr Hammill's recommendations.
4. The Tribunal notes that there is evidence of the effectiveness of rear access modifications that have been recommended by all the experts, including as Occupational Therapist Mr Morris. The Tribunal notes that there is evidence of the effectiveness of rear access modifications that have been recommended by all the experts, including Occupational Therapist Mr Morris.
5. Evidence before the Tribunal shows that absent cost considerations, the most effective modifications would be to the front of the home, including removal of the load-bearing wall and opening the living room for MXYF's use using his Assistive Devices.
6. The Tribunal relies on its considerations above with respect to MXYF's safety and recommendations against crawling.
7. The Agency contends that:

Mr Morris confirmed that the removal of the wall alone will not substantially change the amount of circulation space in the lounge room. In contrast, [the Applicant's Mother] in her oral evidence described that [MXYF] is presently able to get to the couch and onto the mat using his aids. He requires assistance to get in and out of his wheelchair (although not his walker), and to sit in his searing aid or on the couch. This need would not change with the removal of the wall - he would still require help to access any loungeroom furniture or play space.[126]

8. The Tribunal finds that this reasoning fails to capture the concern about MXYF crawling and the deterioration that his inability to use his adolescent mobility aids will cause to his posture. It is reasonable to expect that an adolescent and young man will not use the lounge-room space in the same way, on the soft rubber mat, as MXYF has done to date.
9. Further, the Tribunal considers that the full suite of modifications including to the hallway and living room will be effective and beneficial towards providing occupational justice to MXYF as a child with disability in his own home.
10. Having considered the evidence and the relevant Support Rules and Guidelines, the Tribunal is satisfied that the complex home modifications proposed, including to the front access, living room and hallway, is likely to be effective and beneficial for MXYF pursuant to s 34(1)(d) of the NDIS Act.

Section 34(1)(e) and Rule 3.4 - Reasonable family and carer support

1. Rule 3.4 provides that 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 Tribunal is to consider the following for a child participant:

(nn) That it is normal for parents to provide substantial care and support for children

(oo) Whether because of the child's disability, the child's care needs are substantially greater than those of other children of a similar age

(pp) The extent of any risks to the wellbeing of the participant's family members or carers

(qq) 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.

1. The Tribunal has before it accepts that the ancillary benefits of the proposed complex home modifications on the Applicant's carers, specifically his Mother, who lifts the Applicant while carrying out transfers from and to the bed, the bath, and his mobility aids.
2. The Tribunal finds that the Applicant's transition into adolescence and adulthood will foreseeably increase this risk to the physical wellbeing of the Applicant's Mother if he continues to be unable to effectively use his mobility aids in and out of his home.
3. Taken as a package, the complex home modifications are reasonable and necessary in that taken as a whole, they will reduce risks to the Applicant's wellbeing through minimising him having to crawl as the only form of mobility in his home.
4. Having considered the evidence and the relevant Support Rules and Guidelines, the Tribunal is satisfied that the complex home modifications proposed, including to the front access, living room and hallway, is likely to be effective and beneficial for MXYF pursuant to s 34(1)(e).

1. As a necessary corollary of my finding that complex home modifications are reasonable and necessary and for the same reasons given above, I am satisfied that temporary accommodation to support the delivery of the modifications is reasonable and necessary at an amount that will need to be further determined in accordance with the NDIS Pricing Arrangements and Price Limits at the relevant time.
2. The Agency accepts in principle there will be a need for accommodation.
3. The Applicant relies on a quote from Quest.
4. I accept the Agency's contentions that there is insufficient evidence for the Tribunal to make any directions as to the amount of funding for temporary accommodation. This amount will need to be determined based on the duration in light of compared options in accordance with the NDIS Pricing Arrangements and Price Limits at the relevant time.
5. I am satisfied after considering the evidence and with regard to s 34 of the NDIS Act this this was an appropriate concession for the Agency to make. The Tribunal finds that the requested accommodation support can be included in MXYF's plan as a reasonable and necessary support.

Rule 5.1(a) - likely to cause harm to the participant or pose a risk to others

1. Part 5 of the Supports Rules provide the General Criteria for supports. Rule 5.1(a) of the Supports Rules provides that a support will not be provided if it is likely to cause harm to the participant or pose a risk to others.
2. The Applicant's statement of participant supports includes funding for assistive technology including a wheelchair and walker intended to assist the Applicant's mobility.
3. As detailed above, expert evidence in the multiple OT reports before the Tribunal recommends that MXYF build capacity in using these Assistive Technology devices and clearly states that MXYF will never reach a point where he will not need them.
4. The Tribunal accepts that the Applicant may never be able to be in employment or pursue tertiary studies, due to his disabilities for which he met access to the Scheme.
5. The Tribunal finds that it is reasonable and foreseeable that much of the meaning of the Applicant's life will be in the social context of his family home, where he will spend much time with his siblings and parents. He is a member of a large family and limiting his ability to access his family home - equally to his other siblings - will continue to cause occupational deprivation risks. The Tribunal finds that this will cause harm to the Applicant in the long-term.
6. The Tribunal finds that limiting the Applicant's capacity to build competence in using his paediatric and adult mobility aids more independently (in a supervised context) within his own home will cause harm to MXYF.

Whether supports appropriately funded or provided through the NDIS

1. Now that the requested supports of transport and complex home modifications have been found to be reasonable and necessary under s 34 of the NDIS Act, the Tribunal must also be positively satisfied, that the complex home modifications, are more appropriately funded through the NDIS rather than other service systems.
2. The National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Miscellaneous Rules) provide that in addition to the considerations under s 34(1) of the NDIS Act, the decision maker must also be satisfied that the support is most appropriately funded or provided through the NDIS and not another system. The Amending Act replaced the former s 34(1)(f). The same obligation now appears instead at s 7 of the Miscellaneous Rules. The CEO must also be satisfied that:

the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered: > > (a) as part of a universal service obligation; or > > (b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability. [127]

Supports appropriately funded or provided through the NDIS > > 3.5 Schedule 1 sets out matters for the CEO to have regard to in considering whether supports are most appropriately funded or provided through the NDIS, rather than through other service systems (service systems is defined in paragraph 6.4).

7.1 The Act limits the supports that can be provided or funded under the NDIS to supports that are not more appropriately funded or provided through other service systems, for example as part of a universal services obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability. > > 7.2 The considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by the NDIS or another service system. > > 7.3 For the avoidance of doubt, while this Schedule sets out considerations relevant to whether a support should be considered to be more appropriately provided or funded through another service system, it does not purport to impose any obligations on another service system to fund or provide particular supports.

5. Based on my reasoning and consideration above, I am satisfied that the transport funding and the full suite of complex home modifications (excluding rear access gate automation) accommodate MXYF's particular impairments and facilitate MXYF to be a participating member of the Australian community, on the basis of the values set out in the objects, guiding principles of the NDIS Act. These include promoting MXYF's right to 'Positive personal and social development' as a child with disability, in his home and in the community;[128] facilitating MXYF's enjoyment of his human rights equally with other children;[129] and recognising MXYF's right to 'rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life' within and outside of the context of his family home.[130]
6. For the reasons given above, the Tribunal finds that the following supports are reasonable and necessary supports.

1. Pursuant to s 105 of the ART Act, the Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the orders that the following reasonable and necessary supports should be funded in the Applicant's statement of participant supports:

(i) Recurring transport allowance, Level 2 > > (ii) Funding for a Building Works Project Manager (quote to be provided) for the following:

1. To work with the treating OT to complete an amended scope of works and gain an updated builder quote (inclusive of costs of any required local authority approvals and duration for which temporary accommodation will be required for the applicant and the family) for the following reasonable and necessary complex home modifications:

Bathroom: modification as requested > > Rear access: modification including new sliding door and ramp. Note that door dimensions would need to differ from treating OT recommendations, an alternate door type (sliding stacker door) is likely to be a more suitable option, and a step or threshold ramp would also be required. > > Front Access: Door widening and removal of load bearing wall. Fix external concrete at entrance to ensure a level access at front access and wainscotting to reduce risk of future damage. Rigid vinyl recommended as suitable material for wall protection. > > Bedroom: Door widening to 1000m, wainscotting to reduce future damage and H-track ceiling hoist. Rigid vinyl recommended as suitable material for wall protection. > > Living area/Hallway: removal of load bearing wall; wainscotting to reduce future damage. Rigid vinyl recommended as suitable material for wall protection.

1. Once the cost of modifications which meet Section 34 criteria and duration of temporary accommodation requirement is known, funds can be added to the participant's plan.

(iii) All other reasonable and necessary supports in the existing Statement of Participant Supports dated 16 May 2025 are taken to be affirmed.

Dates of Hearing: 14, 15, 16 and 17 of April in Person, resumed 20 May in Person

Solicitor for the Respondent: Ms Emily Baggett, Mills Oakley

[1] Administrative Review Tribunal Act 2024 (Cth) s 12, ('ART Act').

[3] MXYF, NDIS Plan, 21 August 2023 to 20 August 2025.

[4] Joint Tender Bundle 1 (JTB1), 'T Documents'.

[8] MXYF NDIS Plan 16 May 2025 to 15 May 2026.

[9] Respondent's Closing Submissions, p 10.

[10] National Disability Insurance Agency v WRMF [2020] FCAFC 79, at [145].

[12] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 at [51] (Bell, Gageler, Gordon and Edelman JJ).

[14] See, FSWN and NDIA [2025] ARTA 114, [43]-[46].

[16] National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415; 378 ALR 449; 82 AAR 465; 172 ALD 1, [151].

[17] Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; see also BHXJ and NDIA [2023] AATA 513, at [76] per SM Groom.

[18] NDIS - Operational Guidelines - Reasonable and necessary supports, 28 March 2025, p 4.

[19] NDIS - Operational Guidelines - Reasonable and necessary supports, 28 March 2025, p 7.

[20] Beezley v Repatriation Commission [2015] FCAFC 165 (2015); 150 ALD 11 at [68].

[21] NDIA v WRMF [2020] FCAFC 79 [141].

[22] Closing Submissions of the Respondent [5].

[24] JTB72, 'Report - Michael Morris, occupational therapist' dated 21 November 2024, pp 956-1030.

[26] Respondent's Closing Submissions, p 6.

[27] AB15, 'Carer Impact Statement', pp 738-739.

[28] Respondent's Closing Submissions, p 10.

[30] T3, 'Complex Home Modification Assessment Template, Sarah Bourne (Occupational Therapist)', pp 78-112.

[31] T4, 'Letter, Sarah Bourne (Occupational Therapist),' pp 117-130; T7, 'Letter, Sarah Bourne (Occupational Therapist),' pp 134-140.

[32] T31, 'Scope of Works, Sarah Bourne (Occupational therapist),' pp 285-308.

[33] Applicant's Closing Submissions, p 10.

[34] JTB8, 'Complex Home Modification Assessment, Dr Katherine Hammill, occupational therapist', pp 471-511. The JTB also includes JTB10, 'Complex Home Modification Assessment, Dr Katherine Hammill, occupational therapist (with enclosures), pp 522-553 which comprises Appendix 1, engineer's report.

[35] JTB33, 'Letter from Dr Katie Hammill, occupational therapist,' pp 690 - 695.

[42] JTB10, 'Complex Home Modification Assessment, Dr Katherine Hammill, occupational therapist (with enclosures), pp 522 - 553.

[53] JTB33, 'Letter from Dr Katie Hammill, occupational therapist,' pp 690 - 695

[54] JTB71, 'Briefing Letter - Mills Oakley', pp 947-955.

[55] JTB72, 'Report - Michael Morris, occupational therapist', pp 956 - 1030.

[56] JTB33, 'Letter from Katie Hammill, occupational therapist, pp 690 - 695.

[57] JTB10, 'Complex Home Modification Assessment, Dr Katherine Hammill, occupational therapist (with enclosures), pp 522 - 553.

[58] The JTB also includes JTB8, pp 471 - 511.

[65] JTB12, 'Functional Capacity Assessment Report - Kaylee Felstein, occupational therapist,' pp 556 ‑- 583.

[66] T18, 'Functional Capacity Repot, Kaylee Felstein (Occupational Therapist),' pp 195 - 219.

[67] JTB35, 'Manual Handling Plan - Mary Nguyen, physiotherapist, Kaylee Felstein, occupational therapist,' pp 699 - 708.

[68] JTB42, 'Assessment Template - General Assistive Technology - Kaylee Felstein (plus signed consent

[69] JTB58, 'Mid-cost AT Supporting Letter - Kaylee Felstein, occupational therapist,' pp 895 - 899.

[70] T5, 'Report, Kaylee Felstein (Occupational Therapist,' pp 117 - 130.

[71] JTB12, 'Functional Capacity Assessment Report - Kaylee Felstein, occupational therapist,' pp 556 ‑- 583.

[72] JTB36, 'Quote - Quest Apartments, pp 709 - 710.

[73] JTB21. 'Letter - Barnados Australia', p 629.

[74] JTB21. 'Letter - Barnados Australia', p 629.

[75] MXYF NDIS Plan 16 May 2025 to 15 May 2026, p 12.

[76] Applicant's Closing Submissions, p 1.

[77] JTB49, 'Affidavit' (note: parts of document are subject to s 88 of ART Act),' 823 - 834, p 827.

[78] Applicant's oral evidence and Closing Submissions, p 1.

[79] Applicant's Closing Submissions, pp 1-2.

[80] MXYF NDIS Plan 16 May 2025 to 15 May 2026, p 4.

[81] Applicant's Closing Submissions, p 3.

[84] Respondent's Closing Submissions, p 9.

[85] Oral evidence given on Hearing, Day 1, 14 April 2025.

[86] Applicant's Closing Submissions, p 8.

[87] Oral evidence given on Hearing, Day 2, 15 April 2025.

[88] Respondent's Closing Submissions, p 10.

[89] Applicant's Closing Submissions, p 14.

[90] Respondent's Closing Submissions, p 12.

[91] JTB72, 'Report - Michael Morris, occupational therapist', p 1003.

[93] JTB72, 'Report - Michael Morris, occupational therapist', p 1005.

[101] T18, 'Functional Capacity Report, Kaylee Felstein (Occupational Therapist)', pp 195-219, p 202.

[109] JTB72, 'Report - Michael Morris, occupational therapist', p 966.

[117] NDIS - Home Modifications Guidance for Builders and Designers, p 7.

[118] Applicant's Closing Submissions, p 17.

[124] Oral evidence given on Hearing, Day 5, 20 May 2025.

[125] NDIS - Home Modifications Guidance for Builders and Designers, p 8.

[126] Respondent's Closing Submissions, p 14.

[127] National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 s 7.