1. The Applicant's current Participant Plan incorporates the following participant goals (the Applicant's Statement of Goals and Aspirations):

I would like to be supported to access allied health professionals to complete assessments and provide services that maintain my independence in activities of daily living.

I would like to be supported to remain living at [named aged care facility] whilst exploring alternative housing options.

To live independently in my own home, with appropriate supports in place, due to the impact of my physical disability on daily living tasks such as mobility, personal care, and household activities.

To live close to my family, to maintain strong connections and receive informal support, which are important for my emotional wellbeing and sense of security.

To increase my ability to access and participate in the community, with appropriate support, in order to build my confidence and reduce social isolation.

1. The Applicant's current operative SoPS has a total budget of $262,906.77 for funded supports. Additionally, a contingent SDA eligibility amount of up to $73,437.00 is has been approved, which will be added to the Applicant's SoPS once she takes up residence in a SDA dwelling. For present purposes, it is necessary to note that the SoPS contains the following approved supports:

• - stated eligibility for SDA: Design Category - high physical support; Building Type - villa/Duplex/Townhouse, 1 resident; Location - Queensland, Morten Bay North; including onsite overnight assistance and fire sprinklers.
  • - a budget of $122,383.45 for "Core Flexible Supports" which includes funding for "assistance with daily life" and "assistance with social, economic and community participation". These supports are described in the SoPS in the following terms:

Assistance with Daily Life > > Supports to assist or supervise you with your personal tasks during day-to-day life that enable you to live as independently as possible. These supports can be provided individually in a range of environments, including your own home. Assistance with self-care activitiesTo (sic) trial alternate accommodation, support with your daily activities, personal tasks, and self-care. > > Assistance with Social, Economic and Community Participation > > Supports that can assist with or supervising you to engage in community, social, recreational, or economic activities. These supports can be provided in a range of environments, such as in the community or a centre. Community, social and civic activitiesSupport (sic) to help you join in these activities

Funding in the Core Supports is "flexible", which means that it can be used to obtain supports within the four categories of support specified in the Core Supports Category (two of which are not presently relevant) according to the Applicant's preferences.

1. As already stated, the support in dispute in this review is the intensity and configuration of support worker assistance with daily personal activities. The parameters of the dispute are helpfully summarised in the CEO's Statement of Facts, Issues and Contentions.[3] The Applicant agrees with this rendition of the respective positions of the parties.[4] Note that it is necessary to reflect the parties' positions regarding assistance with social, economic and community participation even though this is not in dispute in any direct sense.

6 hours per day at a ratio of 2:1 (including weekends and public holidays)

4 hours per day at a ratio of 2:1 (including weekends and public holidays)

4 hours per day at a ratio of 1:1 (including weekends and public holidays)

2 hours per day at a ratio of 1:1 (including weekends and public holidays

2 hours per weekday at a ratio of 1:1 for Social and Community Participation

2 hours per weekday at a ratio of 1:1 for Social and Community Participation

3 hours each Saturday and Sunday at a ratio of 1:1 for Social and Community Participation

3 hours each Saturday and Sunday at a ratio of 1:1 for Social and Community Participation

Overnight support

- inactive overnight support at a ratio of 1:1 - 6 nights per week

- active overnight support at a ratio of 1:1 - 1 night per week

Overnight support

- 1:2 inactive overnight support - 7 nights per week

- additional 9 hours per week of 2:1 active overnight support (for pad changes and repositioning)

1. I will refer to the Applicant's position as set out in this Table as the Applicant's requested support.

1. The Tribunal's role in conducting this review has been to reach its own conclusion as to whether the delegate's decision to refuse to approve the Applicant's requested support for inclusion in the current operative SoPS is the correct or preferrable decision.[5] That has involved the independent re-assessment of the evidence in relation to this support that was extant prior to the hearing as well as the assessment of the additional documentary and witness evidence that was before the Tribunal at the time of the hearing.[6]

1. Section 34(1) of the NDIS Act provides, relevantly, that for the purposes of specifying the reasonable and necessary supports that will be funded in a SoPS, the CEO must be "satisfied" of each of the matters set out in that section in relation to the funding of each such support. In this independent review, the Tribunal must also be so satisfied. This is a state of positive satisfaction or relative certainty which must be attained in relation to each criterion specifically.[7] Therefore, while neither the Applicant nor the Agency bear any formal onus of proof, the Applicant does bear the practical onus of placing before the Tribunal, or pointing to material before the Tribunal, that can persuade it that the support in dispute is reasonable and necessary.[8]

1. The following documentary material is before me:

(i) The documents filed by the CEO in accordance with the obligations imposed by s 37 and s 38AA of the AAT Act (T-Documents), > > (ii) Joint Tender Bundle prepared by the CEO in consultation with the Applicant, filed on 14 November 2024, > > (iii) The CEO's Statement of Facts, Issues and Contentions, filed 9 October 2025, > > (iv) Supplementary T-Documents filed by the CEO on 14 November 2025, > > (v) The Applicant's Participant Plan dated 13 November 2025 filed 14 November 2025, and > > (vi) The Applicant's Reply to the CEO's Statement of Facts, Issues and Contentions, filed 15 November 2025.

2. The principal hearing was conducted over 4 days, being 17, 18 and 19 November 2025 and 2 December 2025.
3. The Applicant gave oral evidence in her own cause under affirmation. She called as witnesses Ms Tracy Holt, her Support Coordinator, Ms Maddie Rochford, her previous Clinical Care Manager, Ms Amanda McFarlane, her current Clinical Care Manager, and Mr Caleb Thomas, Occupational Therapist, each of whom gave evidence under oath or affirmation. The CEO called as a witness Ms Catherine Cummings, Occupational Therapist, who she had commissioned as an independent expert. Ms Cummings gave evidence under oath.

1. The NDIS Act is founded upon an explicit values base which is found in its objects (s 3), general principles (s 4), general principles guiding actions (s 5), and with respect to participants and their plans, in more specific principles contained in ss 17A and 31. It is relevant to note the following expressions of this values framework for the purposes of this review:

3 Objects of the Act > > (1) The objects of this Act are to: > > ...

(d) provide reasonable and necessary supports ... for participants..., and

(e) enable people with disability to exercise choice and control in the pursuit of their goals and in the planning and delivery of their supports, and

...

(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community, and

...

4 General principles guiding actions under this Act

...

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

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

...

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

...

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

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

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

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

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

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

...

(15) In exercising their right to choice and control, people with disability require access to a diverse and sustainable market for disability supports in which innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of those supports is promoted.

...

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

...

17A Principles relating to the participation of people with disability

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

...

(3) the National Disability Insurance Scheme is to:

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

...

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

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

...

31 Principles relating to plans

The preparation, variation, reassessment and replacement of a participant's plan, and the management of the funding for supports under a participant's plan, should so far as reasonably practicable:

(a) be individualised; and

(b) be directed by the participant; and

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

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

...

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

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

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

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

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

1. In very short summary of these value statements for present purposes, the policy of the Act places significant emphasis on participant choice and control of their supports, and upon the individualisation of supports.[9] The words and phrases that encapsulate these values are to be understood as meaning what they say.[10] These values, at least in so far as they are expressed in s 4, are more than aspirational.[11] It is the intention of Parliament that persons making decisions under the NDIS Act give effect to this policy as far as practicable.[12]
2. In giving effect to the objects of the Act, regard must be had to the need to ensure the financial sustainability of the NDIS: paragraph 3(3)(b). It is also a general principle that, relevantly, the CEO and any other person performing functions or exercising powers under the NDIS Act is to have regard to the need to ensure the financial sustainability of the NDIS: ss 4(17). However, as I have opined in LNXV by his parent representative LNXV(PR)[13], at a level of generality, the legislative assumption underpinning the operation of Part 2 of Chapter 3 of NDIS Act is that the approval of funding limited to what is reasonable and necessary to support a participant is the mechanism by which the NDIS will be financially sustainable. The Tribunal does not have jurisdiction at large to engage in any other analysis.[14]
3. Section 33 of the NDIS Act sets out the matters that must be included in a NDIS Participant Plan.
4. Pursuant to s 33(1), the Plan must include the Participant's Statement of Goals and Aspirations.
5. Pursuant to s 33(2), the Plan must include a SoPS, prepared with the participant and approved by the CEO, that specifies, relevantly to this case, (b) the reasonable and necessary supports (if any) that will be funded under the NDIS.
6. Sub-section 33(5) of the Act sets out those matters to which the CEO must have regard in deciding whether to approve a SoPS under ss 33(2). It provides:

(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 Agency rules (if any) made for the purposes of s 35; and

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

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

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

1. Section 34 of the NDIS Act determines what is a "reasonable and necessary support" for the purposes of s 33(2):

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.

...

1. There is no definition of "reasonable and necessary supports" in the NDIS Act. Rather, s 34(1) contains the criteria against which this is to be assessed. In this respect, "reasonable and necessary" is a two-limb composite phase which is adjectival to the term "support". Each adjective has work to do, but the statutory task requires them to be applied in combination to determine if the support in issue meets the necessary threshold to justify public expenditure on that support for the participant.[15]
2. The ss 34(1) criteria are expressed conjunctively. A requested support must satisfy each of these criteria if it is to be approved for funding in a participant's SoPS. If it fails to satisfy any one or more of these criteria it cannot be funded, even though other criteria may be satisfied.[16]
3. Sections 34(2), 35 and 209(2A) of the NDIS Act prescribe rule making powers in connection with, relevantly, the funding or provision of reasonable and necessary supports. Several Rules made pursuant to these rule-making powers are potentially applicable in the circumstances of this case.
4. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Supports for Participants Rules) inform the interpretation and application of the s 34(1) criteria. In this respect the following of these Rules are relevant in this review:

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...;

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

(i) the comparative cost of purchasing or leasing 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 ...;

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.

Reasonable family, carer and other support

3.4 In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:

...

(b) for other participants:

(i) the extent of any risks to the well-being of the participant arising from the participant's reliance on the support of family members, carers, informal networks and the community; and

(ii) the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:

• (A) The age and capacity of the participant's family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and
• (B) The intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and
• (C) The extent of any risks to the long-term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and

(iii) the extent to which informal supports contribute to or reduce a participant's level of independence and other outcomes.

(c) for all participants - the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.

1. Additionally, the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Rules 2024 (Cth) (the NDIS Supports Transitional Rules) and the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth) (the Miscellaneous Provisions Rules) are relevant in determining the paragraph 34(1)(f) criterion.
2. The Agency has also developed operational guidelines to assist it in the application of the Act and Rules. While these guidelines are not formally binding on the Tribunal, as the Act and the Rules are, they represent government policy which should be applied unless there is a cogent reason not to do so.[17] The operational policy applicable in this case is called "Reasonable and Necessary Supports (28 March 2025).[18]

1. Having regard to the current state of the law, the questions that must be asked in this review, and the sequence in which they must be asked and answered is as follows:

(a) Is the support that remains in dispute a NDIS Support as defined? > > If the answer to this question is "no" then the support can no longer be considered for approval in the Applicant's SoPS because it cannot satisfy the paragraph 34(1)(f) criterion.

If the answer to (a) is "yes" then the support can be considered for approval in the Applicant's SoPS if it is necessary to address needs that arise from an impairment in relation to which she meets the disability requirements.[19] Therefore:

(b) What are the Applicant's permanent impairments that result in substantially reduced functional capacity to undertake any of the activities of communication, social interaction, learning, mobility, self-care and self-management, and which affect her capacity for social or economic participation?

(c) Does the support in dispute meet the needs of the Applicant arising from an impairment in relation to which she meets these disability requirements?

If the support does not meet the needs of the Applicant arising from an impairment in relation to which she meets the disability requirements it cannot be considered for inclusion in her SoPS because it does not satisfy the requirements of the 34(1)(aa) criterion.

(d) If the answer to (c) is "yes" then ask whether the support in dispute satisfies the requirements of paragraphs 34(1)(a), (b), (c), (d) and (e) and Rule 7 of the Miscellaneous Provisions Rules.

1. The support that is in issue in this case is described by the parties as "assistance with daily living". In the Core Supports category of the Applicant's current operative SoPS it is described as "assistance with daily life". Schedule 1 of the NDIS Supports Transitional Rules made pursuant to s 10 of the Act prescribes "supports that are NDIS Supports unless otherwise provided". Neither of the descriptions appear in that schedule.
2. However, Item 14 of Schedule 1 prescribes as a NDIS Support the following:

Participants and prospective participants

Supports that provide supervision or assistance with personal daily living tasks to help a participant to live as independently as possible in their own home and in the community.

This includes the following:

(a) assistance with eating and drinking, dressing and toileting

(d) maintaining personal hygiene, including showering, bathing, hair washing and drying, fingernail and toenail cutting and cleaning;

(e) moving and positioning;

...

Participants and prospective participants generally

1. As will be apparent from the discussion that follows, the support in issue in this case falls squarely within this prescription. I am thus satisfied that it is a NDIS Support for the purposes of the paragraph 34(1)(f) criterion.
2. It is convenient to also deal with the balance of the paragraph 34(1)(f) criterion here. Having regard to Rule 7 of the Miscellaneous Rules there is no issue in this case that this support is not available to the Applicant under any general system of service delivery or as a support offered as part of a universal service obligation or reasonable adjustment required by an anti-discrimination law.
3. In this respect I note that the Applicant is currently living in aged care which is a general system of support for older persons. However, it is not in issue between the parties that her placement in an aged care facility is inappropriate. She became eligible for the NDIS prior to the age of 65 years and the supports she requires arise from impairments in relation to which she continues to meet the disability requirements (as to which see following). She is not in aged care because of aged-related impairments or support needs.
4. I make these findings.
5. I therefore conclude that the paragraph 34(1)(f) criterion is satisfied.

Is the support necessary to meet the needs of the Applicant as these arise from an impairment in relation to which she meets the disability requirements?

1. As I have set out above, the Applicant met the paragraphs 24(1)(a) and (b) disability requirements for access to the NDIS in July 2022 based on permanent sensory, neurological and physical impairments that were derivative of FND and PN. With respect to the paragraph 24(1)(c) criteria, it was accepted that these impairments resulted in substantially reduced functional capacity for mobility and self-care (but not the other specified life activity areas). It was also accepted that these impairments affected the Applicant's capacity for social and economic participation and resulted in her being likely to require support under the NDIS for her lifetime (the paragraph 24(1)(d) and (e) criteria, respectively). There is no issue in this case that the Applicant continues to meet the disability requirements on these bases as at the date of the hearing. I make that finding.
2. Nor is there any issue in this case that the support in issue meets the needs of the Applicant as these arise from her substantially reduced functional capacity for mobility and self-care. I make that finding.
3. I therefore conclude that the s 34(1)(aa) criteria is satisfied.
4. I now turn to the remaining s 34(1) criteria, starting with the paragraph 34(1)(a) criterion.

Will the support assist the Applicant to pursue her goals, objectives and aspirations?

1. I have set out at paragraph 26 above the Applicant's Statement of Goals and Aspirations contained in her current operative SoPS.
2. It is not controversial that the support in issue would directly assist the Applicant to pursue her third stated goal, which is:

To live independently in my own home, with appropriate supports in place, due to the impact of my physical disability on daily living tasks such as mobility, personal care, and household activities.

1. Additionally, for reasons that will emerge in the discussion below, I am satisfied that it would assist the Applicant in an indirect way to pursue her fourth and fifth stated goals, which are:

To live close to my family, to maintain strong connections and receive informal support, which are important for my emotional wellbeing and sense of security. > > To increase my ability to access and participate in the community, with appropriate support, in order to build my confidence and reduce social isolation.

2. In very short summary, the intensity and configuration of assistance with daily personal activities sought by the Applicant is related to her goal of obtaining SDA accommodation in proximity to her family. It is also related to the use her existing funding for social, community and civic participation for that purpose, rather than using it "flexibly" as suggested by the CEO to overcome a shortfall in funding for assistance with daily personal activities.
3. I make these findings.
4. I therefore conclude that the paragraph 34(1)(a) criterion is satisfied. I now turn to the paragraph 34(1)(b) consideration.

Will the support assist the Applicant to undertake activities, so as to facilitate her social and economic participation?

1. The Agency's operational guidelines state the following with respect to this consideration (footnotes omitted):

We need to be satisfied that the support will help you to do activities, which make it easier for you to participate socially and economically. > > 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. > > Economic participation usually means being involved in things that help you work towards getting and keeping a job. This might be things like volunteering, study, learning new skills or trying work experience. ... > > Social and economic participation are important to most people. They're critical to living an ordinary life. > > To work out if a support meets this criteria, we look at the purpose of the support and how it will help you. > > We fund reasonable and necessary supports that reduce the barriers that prevent you from doing activities. This will help you increase your social and economic participation. > > Some supports help economic and social participation directly. ... > > Other supports help you to do activities like self-care, which indirectly help your economic and social participation.

2. As already stated, the Applicant requires assistance with daily personal activities for her self-care and mobility. Both are conditions precedent to social and economic participation. They enable the Applicant, as far as possible, to live an ordinary life with basic dignity. This support thus indirectly assists the Applicant to undertake activities that facilitate her social and economic participation in the sense described in the operational guidelines. I note in this respect that in her oral evidence and Statements of Lived Experience the Applicant stated an intention, in the context of her new home, to actively engage in community life in a way that she is unable to do currently in the aged care facility. This includes socialising with her family and friends and participating in community groups and events.
3. In any case, the operational guidelines appear to me to reflect an unduly narrow conception of economic participation, limited to employment related activities. The Applicant in this case does not seek to return to employment. In my opinion economic participation is a broader concept and includes a participant's ability to be involved in the economic life of the community as a consumer of goods and services. I am satisfied that assistance with daily personal activities for self-care and mobility are facultative of the Applicant's ability to leave her home to go shopping, and attend recreational and entertainment events which involve the payment of a fee etc. The support will thus indirectly assist the Applicant to undertake activities that will facilitate her economic participation.
4. I make these findings.
5. I therefore conclude that the paragraph 34(1)(b) criterion is satisfied.
6. I now turn to the paragraph 34(1)(c) and (d) criteria, which it is convenient to consider together.

Does the support represent value for money? And will it be effective and beneficial for the Applicant?

1. I have set out the particulars of the Applicant's requested support for daily personal activities beside the CEO's proposed alternative support at paragraph 28 above. It is necessary to observe the following differentials between the two proposals:

1. The Applicant proposes 2:1 support for daily personal activities six hours per day during three, two-hour intervals between 7:00am and 9:00am, 1:00pm and 3:00pm and 7:00pm and 9:00pm, whereas:
2. The CEO proposes 2:1 support for daily personal activities four hours per day, being 65 minutes between 7:45am and 8:50am, 30minutes between 11:30am and 12noon, 45minutes between 2:30pm to 3:15pm, 30minutes from 5:00pm to 5:30pm, and 50 minutes from 7:30pm to 8:20pm (this is a total of 220 minutes, but the CEO rounds to four hours),
3. The Applicant proposes 1:1 support for daily personal activities including meal preparation, clean-up, laundry and domestic tasks for an additional 4 hours per day, being two hours between 9:00am and 11:00am, and 5:00pm and 7:00pm each day, whereas:
4. The CEO proposes 1:1 support for daily personal activities for these tasks for an additional two hours per day.
5. The Applicant's proposal would cost approximately $186,000.00 per annum more to fund than the CEO's proposal.

1. The Applicant proposes 1:1 inactive support for daily personal activities between 10:00pm and 5:00am six nights per week (notionally Monday to Saturday) and 1:1 active support for daily personal activities between 10:00pm and 5:00am one night per week (notionally Sundays), whereas:
2. The CEO proposes 1:2 inactive overnight support for daily personal activities between 10:00pm and 6:00am, and an additional 9 hours per week of 2:1 active overnight support for pad changes and repositioning,
3. the Applicant's proposal would cost approximately $5,000.00 per annum more than the CEO's proposal.

1. The Applicant's proposals are based upon the recommendations of her expert Occupational Therapist, Mr Thomas. The CEO's proposals are broadly based upon the recommendations of the independent expert she engaged, Ms Cummings.
2. There is no difference between the experts as to either the tasks and actions of daytime daily personal care in relation to which the Applicant requires 1:1 support (meal preparation, cleanup, laundry and domestic tasks), or those in relation to which she requires 2:1 support (bed and chair transfers with a mechanical or ceiling hoist; showering including hoist transfers to and from bed or chair to bathing trolley/shower commode; toileting/continence changes; dressing).
3. There is a difference between the experts as to the tasks and actions of nighttime daily personal care in relation to which requires support. Mr Thomas' opinion is that the Applicant requires 1:1 support for two to three continence pad changes overnight; that opinion is premised on the Applicant being able to use the power in her arms to roll in bed and hold position using a bed rail. Ms Cummings opinion is that the Applicant requires 2:1 support for two to three continence pad changes overnight.
4. It is important to make explicit some differences in the assumptions and approach that underpin Mr Thomas' and Ms Cummings' opinions:
   1. With respect to daytime support, Mr Thomas assumed that the Applicant would shower every day, either in the morning or the evening. An allowance was made for this to occur at either time of day, whereas:
   2. Ms Cummings assumed that the Applicant would prefer to shower every second day, and have a bed-bath on the alternate days,
   3. with respect to daytime support, Mr Thomas assumed that his recommended intervals and configuration of support would need to comply with the 'minimum shift' provisions for disability support workers under the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHaDS Award), which is 2 hours, whereas:
   4. Ms Cummings' recommendations of time required for daytime support are based solely on the time involved in performing these tasks and actions. She did not turn her mind at all to how these recommendations would be implemented in a disability support worker 'roster': she professed no expertise in that field,
   5. with respect to daytime support, Mr Thomas assumed and allowed for the Applicant to be actively involved in household tasks, including meal preparation, cleanup, laundry and domestic tasks, whereas:
   6. Ms Cummings assumed that disability support staff would assist the Applicant to prepare and serve her meals, but then carry out laundry and domestic tasks without her involvement while she was eating,
   7. with respect to daytime support, Mr Thomas assumed that the Applicant may choose to remain active seated in her wheelchair up to 8:30/8:45pm, whereas:
   8. Ms Cummings assumed that the Applicant would transfer into bed from 7:30pm,
   9. with respect to nighttime support, Mr Thomas assumed that the Applicant experienced an exacerbation of her irritable bowel syndrome on average once a week, and that this would require the conversion of inactive overnight support to active overnight support on that day. This might be any day, not just a Sunday, whereas:
   10. Ms Cummings assumed that the Applicant experienced an exacerbation of her irritable bowel syndrome 'once or twice a month',
   11. Mr Thomas assumed, based on what the Applicant told him, that she would seek to lead a more active life when living in SDA in the community than she does presently in the aged care facility, and that this would require several 2:1 hoist transfers a day, whereas:
   12. Ms Cummings assumed, based on what the Applicant told her, that she would seek to minimise the number of 2:1 hoist transfers each day because of the trauma involved in these transfers.
5. The Applicant submits that her proposed support represents greater value for money and is more effective and beneficial for her than the support proposed by the CEO because it would enable her to maintain her autonomy, independence, choice and control in relation to this support specifically, and in her lifestyle in the community more generally. In this respect, she submits that she would not be obliged to select SDA based the availability of a shared model of support with a participant(s) in another SDA unit that is co-located or located in proximity to her SDA. This would broaden the choices available to her in the relative thin market for SDA in her preferred location, making it more likely that she can secure SDA in proximity to her family and existing community connections. She submits that the shared model of support proposed by the CEO would, in effect, limit her available SDA options in an already thin market and mean her dependence upon (an)other participant(s) and a provider of this shared support, substantially reducing its individualisation and her choice and control over it. She submits that this is contrary to the policy of the NDIS Act and the outcomes it seeks to achieve. She submits that it is appropriate for the Tribunal to have regard to the minimum shift requirements of the SCHaDS award because a support provider's compliance with these shift requirements is necessary for her supports to be capable of delivery in a real-world context.
6. The CEO submits that the support in dispute can only constitute value for money and be effective and beneficial in the relevant sense to the extent that it is strictly necessary to address the Applicant's substantially reduced functional capacity for self-care and mobility as this is ascertained by reference to the expert evidence that is before the Tribunal. In this respect it is submitted that the Tribunal is bound by the expert evidence as to the Applicant's need for daily personal assistance, constituted by the findings set out in Ms Cummings' report, at least to the extent that this evidence is un-impugned.[20]
7. It is submitted that the Tribunal should not attribute Mr Thomas' findings as to the Applicant's need for assistance with daily personal activities significant weight because it is clear from his oral evidence that he inflated these requirements to correlate with the SCHaDS minimum shift requirements. It is submitted that the Tribunal cannot or should not have regard to the requirements of the SCHaDS award as this is unrelated to the Applicant's functional capacity and is a matter for a support provider to resolve in the staffing model it develops for the Applicant based on the funding that is available to her.
8. The CEO does not accept that there is a relative absence or paucity of SDA options offering the shared model of support she contends for in the Applicant's chosen SDA location. She specifically rejects the proposition that there is a failed market for SDA in the Applicant's chosen location, but did not appear to quibble with the alternative proposition that it is a 'thin market'. However, it is further contended that even if this is the case, that is not relevant in determining satisfaction of the value for money or effective and beneficial criteria because the NDIS is not responsible for SDA housing availability.
9. Finally, it is submitted that assistance with daily personal activities is funded in the Applicant's SoPS in the core supports category with assistance with social and community participation. As the Applicant is authorised to use the total funding in that category flexibly, it is suggested that she can utilise her funding for assistance with social and community participation to overcome any insufficiency she believes there is in her approved funding for assistance with daily life activities.
10. In consideration of the parties' submissions, I turn first to the issue of how the expert evidence of the occupational therapists is to be approached.
11. I do not quibble with the CEO's proposition that my obligation to obtain a state of positive satisfaction or relative certainty in relation to whether the ss 34(1) criteria are met requires me to rely on evidence that is sufficiently probative of those criteria. It is not open to me to speculate or guess at any of these matters. However, un-impugned expert evidence will only be probative of matters that fall within the scope of the expert's expertise and opinion.[21] In this case, Ms Cummings gave evidence in relation to the Applicant's intrinsic functional support needs. I accept that evidence. In fact, there is really no contest between the experts about that matter. Ms Cummings specifically disavowed expertise in the 'rostering' of support workers to provide the support she had determined as necessary. She also did not profess expertise in relation to the availability of SDA options in the Applicant's chosen locality. Her evidence therefore has no bearing on feasibility of the CEO's proposed model for the provision of this support to the Applicant.
12. Mr Thomas' recommendations in relation to the intensity of support worker assistance required by the Applicant over the course of the day are not only based upon her intrinsic functional support needs, but also upon the minimum shift requirements of the SCHaDS Award. That fact is obscure in his expert report, but he readily conceded this in his oral evidence. Additionally, Mr Thomas accepted during cross-examination that he had inflated the Applicant's intrinsic functional support needs, as well as the frequency with which certain assistance with daily personal activities needed to be provided over the course of the day to minimise the difference between his estimated time required to meet the Applicant's intrinsic functional support needs and the SCHaDS two-hour minimum shift requirements. He justified this approach on the basis that it was his experience that if a participant was not sufficiently funded to enable a support provider to comply with the SCHaDS Award minimum shift requirements it would be impossible to engage a support provider for assistance with daily personal activities.
13. I am satisfied that Mr Thomas did not set out to actively mislead the Tribunal as to the Applicant's intrinsic functional support needs. Rather he sought to persuade it of the time intervals that would be necessary in a real-world context for support to meet those needs to be provided in fact. Nevertheless, the merger of the Applicant's intrinsic functional support needs with the extrinsic factor of the SCHaDS minimum shift requirements is unhelpful and potentially misleading. If it was necessary to prefer the evidence of one expert occupational therapist over the other as to the Applicant's intrinsic functional support needs, I would prefer Ms Cummings' evidence as being a more transparent assessment of these needs. However, very little turns on this in this case. At the end of Mr Thomas' cross-examination, his assessment as to the Applicant's intrinsic functional support needs, devoid of considerations related to the provision of this support by a support provider, closely correlated with Ms Cummings' assessment.
14. I now turn to the issue of whether it is permissible and appropriate for me to consider a matter that is extrinsic to the Applicant's functional support needs, being the SCHaDS Award minimum shift requirement, in determining if the Applicant's requested intensity of assistance with daily personal activities is reasonable and necessary, having regard to the paragraph 34(1)(c) and (d) criteria.
15. The starting point is to make explicit the statutory task required in the application of those criteria.
16. The paragraph 34(1)(c) criterion requires that a support represents value for money. It provides that this will be the case if the costs of the support are reasonable. Ascertainment of that fact involves the application of a 'reasonableness test' that requires the balancing of two factors. Firstly, the benefits that will be achieved by the provision of the support to the participant, and second, the cost of alternative support. This is a 'cost benefit' analysis; it requires the Tribunal to assess the relation between the cost of the support and the value of its resulting benefits. Rule 3.1 of the Support for Participants Rules prescribes those matters that are to be considered in the application of this reasonableness test. Rules 3.1(a), (b), (c), (e) and (f) are applicable in this case.[22]
17. The paragraph 34(1)(d) criterion requires that a support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice. Rule 3.2 of the Support for Participants Rules requires the CEO to consider the evidence of the effectiveness of the support for others in like circumstances to the participant. Rule 3.3 requires the CEO to consider, and if necessary, seek expert opinion to determine if the paragraph 34(1)(d) criterion is satisfied.
18. Both the paragraph 34(1)(c) and (d) criteria are outcomes focused. That is explicit in paragraph 34(1)(c) by operation of Rule 3.1(a). It is otherwise implicit in that paragraph and the Rule because the decision maker is required to ascertain the 'benefit' that will accrue to the participant by the provision of the support. It is also implicit in the paragraph 34(1)(d) criterion because satisfaction of that criterion turns on the concepts of 'effectiveness' and 'benefit' of the support to the participant.
19. It is therefore necessary to make explicit the 'outcomes' for the participant that are sought by the funding of reasonable and necessary supports. In this respect the policy objectives of the NDIS Act overall are instructive. However, I draw particular attention to ss 3(11) which provides that the objective of the provision of a reasonable and necessary support to a participant is to support them to pursue their goals and maximise their independence, enable them to live independently and to be included in the community as fully participating citizens, and to develop and support their capacity to undertake activities that enable social and economic participation.
20. I also draw particular attention to the principles relating to plans contained in s 31 of the Act. In my opinion these principles are to be viewed as instrumental measures which are intended to be facultative of the achievement of the outcomes sought by the provision of reasonable and necessary supports. They provide that the participant planning process must, as far as is reasonably possible, be individualised, tailored and flexibly responsive to the participant's specific needs and aspirations, be underpinned by the right of a participant to exercise choice and control over their own life, advance the inclusion and participation in the community of the participant with the aim of achieving their individual aspirations, and maximise the choice and independence of the participant (amongst other things).
21. I therefore conclude with respect to the paragraphs 34(1)(c) and (d) criteria that the outcomes for the Applicant against which those criteria are to be assessed are the degree to which the support will:
    • - enable her to pursue her goals and aspirations (I note parenthetically that there is a distinction here with the paragraph 34(1)(a) criterion which seeks to establish if there is a logical connection or nexus between the requested support and the Applicant's goals and aspirations). The paragraph 34(1)(c) and (d) criteria require an evaluation of alternative means of achieving that outcome in terms of cost benefit, efficacy, and benefit),
    • - maximise her independence generally and enable her to live independently specifically, and
    • - enable her to be included in the community as a fully participating citizen.
22. Facultative of those outcomes are the degree to which the support reflects an individualised, tailored and flexible response to the Applicant's specific needs and aspirations, enables her to exercise control over her own life, and maximises her choice and independence.
23. What is salutary from the foregoing discussion is that the paragraph 34(1)(c) and (d) criteria are not expressed to be limited to what is strictly necessary to meet the participant's intrinsic functional support needs abstracted from the real-world context in which these targeted outcomes are to be achieved. That is manifest in Rule 3.1(e) which requires a specific comparison of the cost of the support with supports of the same kind in the area in which the participant resides. That consideration is obviously external to the participant's intrinsic functional capacity. Rules 3.1(c) and (f) also require consideration of the interplay between the support in issue and required current and future supports for a participant. Those are also matters downstream of the participant's intrinsic functional capacity.
24. Against this backdrop it is appropriate to deal separately with each component of the Applicant's request for assistance with daily personal activities, being:
    • - the request for 2:1 daytime support six hours of each day,
    • - the request for additional 1:1 daytime support four hours of each day, and
    • - the request for 1:1 inactive overnight assistance six nights a week, and 1:1 active overnight assistance one night a week.
25. As I have already noted, there is no difference in opinion between Ms Cummings and Mr Thomas as to those personal care and mobility tasks and actions in relation to which the Applicant requires 2:1 assistance with daily personal activities. However, there are two differences of assumption that underpin their estimates of the time required to carry out these tasks and actions which it is necessary to resolve. Those are the frequency with which the Applicant will shower and the number of times she will require a hoist transfer to and from her bed/wheelchair/shower commode daily.
26. Having heard the Applicant's evidence I consider it reasonable that provision is allowed for her to shower once a day. This will involve two hoist transfers between her bed/shower commode/wheelchair, either in the morning or the evening (but not both).
27. I don't doubt that the Applicant informed Ms Cummings that she presently showers every second day and opts for a bed bath on the intervening day. But it was clear to me from the Applicant's oral evidence that this was due to her relative inactivity in the aged care facility, her concern about the needs of other residents and the demands on staff in that facility, and to what she considers is the unreliability of showering support being provided to her in a timely way or at all in that facility. In her oral evidence the Applicant indicated an intention to lead a much more active life than she does in the aged care facility, which will mean getting out of bed and preparing to undertake activities in and outside the home. It is therefore reasonable to allow for a shower once a day. I note that there is nothing atypical or disproportionate about this allowance for a person of the Applicant's life stage.
28. I also don't doubt that the Applicant informed Ms Cummings that she presently minimises as far as possible the number of other transfers she requires during the day, and that one factor driving that choice is the trauma involved in these transfers. However, in her oral evidence it was clear that this was not the only factor driving that choice. The inflexibility and unreliability of assistance with transfers in the aged care facility, and her demotivation to transfer from bed due to the difficulties of arranging support to undertake activities outside the aged care facility, and the paucity of stimulating activity within the aged care facility, were also significant factors driving this choice. As I have said, the Applicant expressed an intention to lead a more active life once she takes up residence in her own home with dedicated supports available to her. One aspect of that is her intention not to transfer into bed in the late afternoon/early evening, but to delay this until the mid to later evening.
29. Having regard to this, I consider it is reasonable to allow for up to eight hoist transfers per day, being (notionally):
    • - transfer from bed to shower commode in the early morning,
    • - transfer from shower commode to bed for dressing, including application of continence pads, following showering,
    • - transfer from bed to wheelchair after dressing,
    • - mid-day transfer from wheelchair to shower commode or bed for continence care,
    • - mid-day transfer from shower commode or bed following continence care,
    • - early evening transfer from wheelchair to shower commode or bed for continence care,
    • - early evening transfer from shower commode or bed to wheelchair following continence care,
    • - later evening transfer from wheelchair to bed.
30. I don't doubt that this number of transfers will be onerous for the Applicant given the physical manipulation of her that it requires. I do not criticise Ms Cummings for being concerned about this. However, this is ultimately a cost benefit analysis and dignity of risk issue for the Applicant to determine. Having regard to the policy of the Act, it should be a matter that is left firmly within her choice and control. A sedentary, primarily bed-bound existence with few transfers is not an outcome that ought to be compelled by the lack of availability of necessary support for a more active lifestyle. Such an outcome is contrary to the vision of the NDIS as this is manifest from the value provisions of the NDIS Act. In this respect, I do not consider showering once a day, toileting three times a day, or staying active into the later evening atypical or disproportionate having regard to the Applicant's life stage.
31. Having resolved those issues, I now turn the competing proposals for 2:1 daytime support.
32. As I have already stated, Ms Cummings concluded that the Applicant's intrinsic needs for functional support with self-care and mobility required 220 minutes of support worker assistance, which the CEO has 'rounded' to four hours.
33. Ms Cummings' estimate is based on daytime support being provided at five intervals of between 30- and 65-minutes duration over a 12.45-hour period. Ms Cummings did not turn her mind to the feasibility of 220minutes of support being provided to the Applicant during five intervals over a 12:45hour period. She specifically disavowed any expertise in 'rostering'.
34. I reject the CEO's submission that the feasibility of support assessed as strictly necessary to meet a participant's functional support needs being provided to the participant in fact is a matter beyond consideration under the paragraphs 34(1)(c) and (d) criteria. I cannot see how a support could constitute value for money having regard to the cost of alternative support if the proposed 'alternative support' is incapable of being provided in fact. On the same basis, I cannot see how a support could be 'effective' or 'beneficial' for a participant if it cannot be provided in a real-world context.
35. The CEO submits that issues of 'rostering' are matters for support providers to work out based on the funding that is available to the participant. I do not accept this bare statement. While is it reasonable to expect a support provider to be innovative and flexible in the provision of support such that it can be provided at a reasonable public cost, the funding available to the participant must be sufficient to enable the support to be provided in such a way as to be capable of meeting the participant's intrinsic support needs in the industrial context governing the provision of that support, in this case the minimum shift requirements of the SCHaDS Award.
36. I have noted above that while there is no formal onus of proof attaching to either party in this proceeding, the Applicant does bear a practical onus of persuading the Tribunal with probative evidence that her requested support is reasonable and necessary. However, that does not mean that the CEO bears no evidentiary onus. Paragraph 56(1)(a) of the ART Act imposes a duty on the CEO to use her best endeavours to assist the Tribunal to make the correct or preferrable. In relation to the present issue, the Tribunal is not assisted by an assertion made ipse dixit that the provision of support is a matter for a support provider to determine, as if that will always be possible, despite any funding limitation that may be available in relation to the provision of that support. The Tribunal would be assisted by evidence of the realistic probability of a support provider being able to provide the reasonable and necessary support in the market in which support providers operate.
37. In this respect, the CEO has led no evidence from any expert who deposes to the fact that funding for 220minutes (or 4hours) of assistance with daily personal activities is capable of being provided in a community setting in a single occupancy SDA over a 12:45hour period during five intervals of care spread throughout that period. It is difficult to envisage how this could be done other than in a congregate care setting, such as the aged care facility in which the Applicant currently lives, where available funding is shared between several or more participants to enable the continuous presence of support workers on site. That model of support is entirely different to the model of care required to support the Applicant in a single occupancy SDA in the community.
38. Mr Thomas' proposal is for six hours of 2:1 support for daily personal activities to be provided during three two-hour intervals during the day. This proposal is based on an amalgam of what he considers is necessary to meet the Applicant's intrinsic functional support needs for self-care and mobility, the clustering of the tasks and actions required to satisfy these functional needs into three intervals, and the minimum two-hour shift requirements of the SCHaDS Award. I note again that at the close of his oral evidence Mr Thomas appeared to have conceded that the Applicant's intrinsic need for assistance with daily personal activities computed to a total of about 210-270minutes per day.
39. Mr Thomas' evidence in relation to the two latter considerations was to the effect that this is what is required for there to be a reasonable probability of a support provider being prepared to be engaged to provide this support in fact. The foundation for this opinion was subject to some scrutiny in cross-examination, during which Mr Thomas gave evidence of his experience working with NDIS participants and support providers, and of these issues being of key concern in the preparation and implementation of participant plans. Although Mr Thomas's professional expertise is in occupational therapy I am prepared to give this evidence, which is based on Mr Thomas' experience working in the field of NDIS support more generally, weight.
40. Mr Thomas' evidence was corroborated by Ms Tracey Holt, who is the Applicant's Support Coordinator. In that role, she may be considered to have specialised expertise in the field of securing support providers to provide NDIS supports. Her evidence was to the effect that it is essential that the funding of the Applicant's requested support take account of what is necessary for a support provider to provide that support in the context of a single occupancy SDA, and that this would require the clustering of personal care and mobility tasks and actions as Mr Thomas had proposed, and compliance with the two-hour minimum shift requirements of the SCHaDS Award. It was her opinion that if the Applicant's approved funding did not allow for this there was an unlikelihood that a support provider could be engaged to provide her with assistance with daily personal activities and that this would remain an insurmountable barrier to her moving out of aged care and taking up occupancy in her approved SDA.
41. I note at this juncture that there may be an implication in the CEO's submission that 2:1 daytime support could be shared with (an)other participant(s) in co-located SDA or SDA located in proximity to the Applicant's SDA and that it is this arrangement that would mean that four hours of such assistance a day was sufficient. If that submission is made, then I reject it on the basis that there is no evidence before me as to the existence or likely existence of such a support arrangement before the plan reassessment date before me, and for the same reasons I reject the CEO's proposed shared model of overnight support (as to which see following).
42. With respect to the current existence or likely future development within a reasonable time of co-located or proximate SDA dwellings, Ms Holt's evidence was to the effect that she had undertaken, and continues to undertake, extensive searches for SDA dwellings of this description, including those still in in the planning phase, within a 200km radius of the Applicant's preferred location. No existing and available co-located or proximate SDA dwellings that would facilitate a shared support arrangement had been identified, and of those co-located or proximate SDA that are in development it cannot yet be ascertained if a shared model of support will be available. The CEO's case manager also undertook searches for SDA options available to the Applicant in the immediate lead up to, or during, the hearing and the results of these searches were put to Ms Holt. The searches done on behalf of the CEO did not produce any new result to those Ms Holt had considered. She demonstrated a detailed knowledge of these options and was able to explain why they did not present feasible options for the Applicant generally and with respect to shared support. I accept her evidence in this respect.
43. At the opening of the hearing, I asked for Counsel's assistance in determining the implication of a putative 'failed market' for SDA in the Applicant's chosen location for the support in issue. After taking instructions, in closing submissions, Counsel rejected the suggestion that there was a failed market for SDA in the Applicant's chosen location. However, she did appear to accept, based on the evidence, that there was a 'thin market' (my words). I make that finding based on Ms Holt's evidence. I further find on the basis of Ms Holt's evidence that, although SDA options in the Applicant's chosen location are likely to improve over time, there is a low likelihood of co-located or proximate SDA options that would be facultative of a shared support model becoming available on the market within the temporal range of the SoPS under review which has a scheduled reassessment date of November 2026, or within any reasonably foreseeable period thereafter.
44. As I have already noted, consequential upon this evidence, Counsel for the CEO put to me that the lack of availability of SDA options that could be facultative of a shared model of support was not a matter that arises for consideration in relation to the paragraph 34(1)(c) and (d) criteria. It was submitted that the CEO is not responsible for the provision of SDA or any 'thin market' that may pertain to this housing option in the Applicant's chosen locality. I consider this a challenging submission having regard to the policy found in paragraph 3(1)(g), ss 4(15) and ss 31(k) of the NDIS Act, and Rule 20 of the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth).[23]
45. But in any event, with respect to the paragraph 34(1)(c) criterion I consider the availability of a putative alternative support to be a matter that squarely arises for consideration in the cost benefit analysis, including by operation of sub-rule 3.1(e) which requires me to consider the costs of alternative supports of a kind that are provided in the Applicant's chosen locality. If there is a low likelihood of the alternative, less costly, support contended for being available to the Applicant in her chosen locality then in my view it cannot be considered a realistic form of alternative support. In this respect the NDIS planning provisions contained in Part 2 of Chapter 3 of the NDIS must be understood as operating within a real-world context not in the world of abstract theory.
46. I thus conclude with respect to the paragraph 34(1)(c) criterion that the Applicant's proposed model of support for those daytime personal daily activities that require 2:1 support constitutes better value for money than the alternative support contended for by the CEO. On the evidence before me I have low confidence as to the availability of this proposed alternative support being available to the Applicant in her chosen locality within her current plan period or within any reasonable time thereafter. The Applicant's proposed support is the only one that has a realistic prospect of achieving the outcomes sought by the provision of this support in a timely way or at all.
47. With respect to the paragraph 34(1)(d) criterion, I conclude for essentially the same reason that the Applicant's proposed model of support for those daytime personal daily activities that require 2:1 support is more effective and beneficial for the Applicant than the alternative support contended for by the CEO. As between the competing proposals, the Applicant's is the only one that has a realistic prospect of being effective in ensuring the provision of the support, and conferring the outcome benefits envisaged by its provision, within the Applicant's plan period or within any reasonable period thereafter.
48. I note that even if I am wrong in these conclusions, I would conclude in the alternative that a shared model of support for those personal daily activities that require 2:1 support does not constitute value for money, nor is it effective and beneficial for the Applicant, for the same reasons I give following in relation to the CEO's proposed shared model of overnight assistance.
49. I now turn to consider the Applicant's request for 4 hours 1:1 assistance with personal daily activities.
50. I note that Ms Cummings and Mr Thomas agree as to tasks and actions in relation to which the Applicant requires 1:1 assistance with daily personal activities. They relate to in-home meal preparation and domestic chores (cleaning, laundry etc). Mr Thomas allows for 2 hours of such assistance to be provided to the Applicant between 9:00am and 11:00am and 5:00pm to 7:00pm each day, for a total of 4 hours. Like his proposal for 2:1 assistance with daily personal activities, Mr Thomas's proposal is an amalgam of his assessment of the Applicant's intrinsic functional support needs, the clustering of these activities into two time periods, and the application of the minimum shift requirements of the SCHaDS Award, the latter two of which he considers necessary to ensure that a support provider can be engaged to provide this support to the Applicant in a single occupancy SDA.
51. Based on Ms Cummings assessment of the Applicant's intrinsic functional supports needs for these tasks only, the CEO allows for 2 hours of such support over the course of the day.
52. I have noted above a relevant difference in assumption made by Mr Thomas and Ms Cummings in relation to this support. That is, Mr Thomas assumed that the Applicant would be involved to the extent functionally possible for her in these tasks and actions, whereas Ms Cummings assumed that support staff would, for the most part, perform these activities (other than eating) for the Applicant with no or minimal involvement by her in these activities. In response to my inquiries, it appeared to be accepted by the CEO in closing submissions that the Applicant's involvement in domestic activities is likely to involve at least some additional time.
53. There is, however, a fallacy in Mr Thomas' proposal for 1:1 assistance which needs to be exposed. He assumes that 1:1 assistance with daily personal activities is to be provided consecutive to the allowance he has made for 2:1 assistance with these activities. Rather, it should be seen as contiguous with the activities requiring 2:1 assistance; that is, once those activities are complete, support staff are available to be deployed to those activities that require 1:1 intensity of assistance.
54. In this respect, while the specific activities requiring this different intensity of assistance are not the same, there was no evidence that they require support staff with different skill sets. I have noted above that at the close of his evidence Mr Thomas accepted that the Applicant required, on an intrinsic basis, between 210 and 270minutes of 2:1 assistance each day. That means that on a realistic basis at least 180minutes (or 3 hours) of available support worker time (90minutes x 2 support workers) will not be utilised during the 2:1 intensity minimum shift and is available to deploy to other assistance with daily living, such as meal preparation and clean-up and domestic chores.
55. The CEO's proposal to fund an additional two hours' daily assistance for such activities must be seen in this context. If that proposal is accepted it would, in effect, provide the Applicant with an allowance of five hours per day which could be deployed for assistance with meal preparation and clean up and domestic chores. On any view that is a substantial allowance. Mr Thomas proposal would, in effect, provide the Applicant with seven hours of such assistance.
56. I accept that the allowance for support worker assistance for meal preparation and clean-up should enable the Applicant to be involved in those activities as far as possible and that this requires additional time. In this respect, while the Applicant may not have the functional capacity to carry out tasks such as domestic cleaning and laundry, she does have the functional capacity to prioritise domestic tasks and to supervise them being carried out in accordance with her personal preferences. That is relevant to the Applicant obtaining relative independence in her lifestyle and choice and control over her supports. However, I am satisfied that this can be sufficiently accommodated within less than the seven hours assistance that would be available if Mr Thomas' proposal is accepted.
57. The 'hard(er)' barriers that operate in relation to the quantum of 1:1 assistance are the Applicant's reasonable requirements for meal-time assistance (meal preparation, service, and clean-up). As it is likely that the Applicant will shower in the morning, the uncontroversial evidence of the expert occupational therapists is that she is likely to utilise approximately 90 minutes of the 2:1 assistance available to her for transfers, showering, and dressing leaving 30 minutes of available time to be deployed to other assistance with daily personal activities (albeit two x 30minutes). In my view that is not a reasonable allowance for the preparation, service and clean-up of breakfast or to commence other necessary household chores such as any daily laundry. I therefore consider it reasonable to allow funding for 1 hour of 1:1 assistance between 9:00am and 10:00am for this purpose.
58. On the evidence of the expert occupational therapists the 1:00pm to 3:00pm 2:1 shift is likely to involve activities that require approximately one hour of 2:1 support, leaving two hours of available support time to be deployed to other activities such as lunch preparation, service and clean-up, evening meal preparation, completion of any daily laundry and domestic cleaning.
59. Having regard to that I think it is reasonable to allow funding for 1:1 assistance between 6:00pm and 7:00pm each day for any final evening meal preparation, meal service and clean-up and any remaining domestic tasks. I do not consider it reasonable to require the Applicant to wait any later for service of her evening meal.
60. The Applicant's reasonable scheduling requirements for breakfast and her evening meal prohibit any further reduction in the allowance for funding for 1:1 assistance even though there may be some notionally underutilised 2:1 assistance at mid-day and in the evening. As I have already stated above, I do not consider it reasonable to allow for the 2:1 shift to commence any earlier than 7:00pm because this would require the Applicant to retire to bed before 8:00pm. It is reasonable to allow for her to remain active into the later evening, consistent with the life-stage expectations of a person of her age.
61. With respect to the minimum two hour shift requirements of the SCHaDS Award, this is not an issue in relation to the provision of 1:1 assistance because that assistance is contiguous with 2:1 assistance. That is, adapting Mr Thomas' recommended roster, in relation to the Applicant's morning routine, two support workers would commence work at 7:00am, one would complete their shift at 9:00am (being a two-hour shift) and the other at 10:00am (being a three-hour shift). In relation to the Applicant's late afternoon/evening routine, one support worker would commence their shift at 6:00pm and end their shift at 9:00pm (being a three-our shift and a second support worker would commence their shift at 7:00pm and complete it at 9pm (being a two-hour shift).
62. For the foregoing reasons, I consider funding for two-hours of assistance each day with daily personal activities at a ratio of 1:1 to represent value for money compared with the alternative support (being four hours of such assistance daily) proposed by the Applicant. It would achieve equivalent outcomes for the Applicant in relation to her needs for meal preparation, service, clean up and domestic assistance at a substantially lesser cost.
63. For essentially the same reason I consider that funding for two-hours of assistance each day with daily personal activities would be effective and beneficial for the Applicant in meeting her needs for meal preparation, service, clean-up and domestic assistance.
64. I note with respect to Sub-Rule 3.1(c) that allowing for assistance with daily activities requiring a 2:1 ratio of support to be provided contiguously with those that require a 1:1 ratio will reduce the overall cost these supports, or at least increase their cost: benefit.
65. I now turn to the Applicant's request for overnight assistance.
66. It is first necessary to resolve to factual disputes impacting on the outcome of consideration of this request.
67. Mr Thomas assumed for the purpose of formulating his recommended model of overnight assistance that the Applicant would experience IBS flare-ups at an average frequency of once to twice a week. On this basis he allowed notionally for one active overnight shift for personal daily activities each week on the assumption that the already rostered inactive overnight support worker would need to remain awake for continence care throughout the night. In other words, he allowed for funding for the conversion of one inactive overnight shift a week to be converted, as required, to an active overnight shift.
68. Whether or not the Applicant informed Mr Thomas that she experienced an average of weekly IBS flare ups, that was not what she informed Ms Cummings, and it was not her evidence at the hearing. Rather it was her evidence that IBS flare-ups occurred at a frequency of approximately once or twice a month. I make that finding.
69. Ms Cummings assumed that the Applicant would require assistance with daily activities at a ratio of 2:1 for continence care two or three times overnight. She noted Mr Thomas' proposal for a 1:1 ratio of assistance with continence which would involve the Applicant utilising her upper body strength and a bedrail to self-turn. She considered this reasonably aspirational, but not presently safe. Based on her recommendations the CEO proposes an allowance of funding for nine hours of overnight assistance per week at a ratio of 2:1.
70. Mr Thomas gave evidence at the hearing as to the Applicant's functional capacity to use her upper body strength and a bedrail to turn her body to facilitate overnight continence care with a single support worker. That evidence was supported by the Applicant's own evidence of her capacity to do this. I therefore prefer this evidence to Ms Cummings' evidence on this point. In this respect, I do not apprehend any unreasonable risk to the Applicant's safety from such an arrangement (it does not involve any transfer).
71. Other than the issue of whether the Applicant requires a 2:1 ratio of assistance for continence changes overnight, which I have not found, I do not understand there to be any dispute that both contended for models of overnight assistance are theoretically capable of meeting the Applicant's intrinsic functional support needs. Resolution of the questions of what represents value for money and what is effective and beneficial in relation to the competing proposals turns on two other issues.
72. First, the feasibility of the shared 1:2 model of care proposed by the CEO being available to the Applicant in association with a SDA option in her chosen locality within a reasonable period. Second, whether this shared model of overnight support would achieve the outcomes sought by the funding of NDIS supports for a participant.
73. To make it explicit, the CEO's model of care would involve a single support provider providing overnight support to two participants living in separate SDA dwellings co-located or located in proximity to each other. A support worker would move between the dwellings to assist with daily personal activities at intervals overnight. The support worker would be 'based' in one dwelling, not both. For this model of care to operate the Applicant would need to find a SDA option that is collated or located in proximity to another SDA, a participant occupant of that dwelling who is funded for and is willing to share overnight assistance with personal care, and a support provider willing to be engaged to provide this support on a shared basis. The ongoing viability of this model of care would be dependent upon both participants remaining in these dwellings and choosing to maintain the same support provider, or a same-for-same support turnover of occupant in the other dwelling, or a joint agreement to change support provider.
74. I have discussed above the evidence before me in relation to the likelihood of a SDA option becoming available to the Applicant that is co-located with another SDA or that is in proximity. I have found that there is a low likelihood of this occurring within the Applicant's plan period or within any reasonable period thereafter. I adopt that finding and the associated analysis in relation to the feasibility issue. The implication of this is that there is a likelihood that approval of the CEO's proposed model of overnight support would mean that there is no realistic foreseeable prospect of the Applicant moving out of the aged care facility into her own home. She would continue to languish in aged care.
75. However, even if I am wrong in relation to the feasibility issue, I am not satisfied that the shared model of support proposed by the CEO is capable to achieving the outcomes sought by the provision of this support. It is a composite funding arrangement rather than one that is tailored to the individual needs of the Applicant. It not only reduces the Applicant's choice and control in relation to the selection of a SDA option; it also restricts her independence and choice and control in relation to the selection of a support provider. In this respect her approved funding would not be readily portable between support providers. She must agree with another participant about the selection of the support provider and cannot change support provider without the other participant's agreement. It would result in a material degree of determinative choice and control in relation to the support being exercised by others. This shared model would thus share features of the 'block funding' model for disability support that the NDIS Act was designed to overcome.[24]
76. I should be clear that it is not my intention to suggest that a shared funding model could never achieve for a participant the outcomes sought by the provision of NDIS Supports. Whether that is so would require analysis in the circumstances of each case.
77. For these reasons I am satisfied that the Applicant's proposed model of overnight assistance with daily personal activities, except her proposed one night of active 1:1 assistance a week, represents value for money as compared with the model proposed by the CEO. The Applicant's proposed model of care is individualised and tailored to her specific needs, will facilitate her independence from others, and maximises her choice and control in relation to this support. The CEO's proposal is not individually tailored and involves significant compromises of the Applicant's independence and the choice and control she is able to exercise in relation to this support. The relatively modest additional cost of the Applicant's proposal to the CEO's proposal on an annualised basis is justifiable because of these substantial additional benefits.
78. For essentially the same reasons I am satisfied that the Applicant's proposed model of overnight assistance, except for her proposed one night of active 1:1 assistance a week, will be more effective and beneficial for the Applicant than the CEO's proposed model.
79. I do not accept the Applicant's proposal for one night of 1:1 active overnight assistance a week because, as I have noted above, the evidence does not establish that such assistance is likely to be required at this frequency. Rather, it establishes that the Applicant is likely to experience IBS flare-ups, and require active overnight assistance, once or twice a month. Having regard to that I am satisfied that the level of active overnight assistance that represents value for money, and which will be effective and beneficial in relation to the Applicant's additional personal care needs during IBS flare-ups, is funding for 18 days of such assistance (on an annualised basis). Inactive overnight assistance ought to be approved for the other 347 days (on an annualised basis).
80. Subject to the conclusions I have reach above with respect to the particulars of the support that ought to be approved, I therefore conclude that the paragraphs 34(1)(c) and (d) criteria are satisfied. I now turn to the paragraph 34(1)(d) consideration.
81. I now turn to the paragraph 34(1)(e) consideration.

Does funding of the support take account of what it is reasonable to expect families, carers, informal networks and the community to provide?

1. The Applicant is 66 years of age. She has a daughter and grandchildren (her family). She currently lives apart from her family in an aged care facility. She was discharged to that facility because her high intensity physical support needs meant she was unable to return to live with her husband (who was then still living).
2. The Applicant's family provides her with emotional support, but they do not provide her with assistance for daily personal activities. There is no evidence that they are motivated or capable of doing so. Nor, on a normative basis, is it reasonable to expect that they would do so. The Applicant is an independent adult. It is not age appropriate for this type of support to be provided to her by family members. She has high intensity physical support needs for self-care and mobility. Having regard to this, it would be unsafe for her to rely upon informal family supports to meet her needs. The policy of the Act requires the Tribunal to recognise and respect the role of family members in the lives of participants. It is not the role of family members to provide high intensity physical support to adult family members. It is a type of support the NDIS was introduced to provide for people living with permanent significant impairments.[25]
3. Nor is the type of support at issue in this review appropriately provided by any other form of informal support or the community for the essentially the same reasons.
4. I make these findings.
5. I therefore conclude that the paragraph 34(1)(e) consideration is satisfied.
6. By way of a final observation, it is appropriate to comment on the CEO's submission that it would have been open to the Applicant to utilise her available funding for assistance with social and community participation flexibly to cover any perceived shortfall in funding for assistance with daily personal activities, and that the Tribunal should take this into account in determining if her request for funding for daily personal activities is reasonable and necessary.
7. I do not accept that it would be appropriate for the Tribunal to do so. The potential flexible use of available funding is not a mechanism that should be used to obscure structural deficits in the funding of particular supports in a participant's SoPS. In this case the CEO has approved two hours of 1:1 assistance with social and community participation each weekday, and three hours each Saturday and Sunday. She may be taken to have done so on the basis that such support is reasonable and necessary having regard to each of the s 34(1) criteria.
8. It is one thing for the CEO to permit the use this funding flexibly with funding available for daily personal activities to facilitate a particular participant outcome on a particular day or over the course of a particular week. It is quite another to propose its diversion over the whole plan period to supplement a structural insufficiency of funding for assistance with personal daily activities. This would be to deprive the Applicant of reasonable and necessary funding for assistance for social and community participation contrary to the policy of the Act insofar as it seeks to promote her inclusion and participation in society.

1. For the reasons stated above, and subject to the particulars of the support I have determined as reasonable and necessary, the Applicant's requested support for assistance with daily personal activities satisfies each of the s 34(1) considerations. It is therefore a reasonable and necessary support for the Applicant which she is entitled to have approved for inclusion in her SoPS.

1. For the foregoing reasons the Tribunal makes the following order:

(1) Pursuant to s 105 of the Administrative Review Tribunal Act 2024 (Cth), the decision under review is set aside and remitted for reconsideration by the CEO by 6 February 2026 in accordance with orders that:

(a) the following intensity of support worker assistance is a reasonable and necessary support that is to be funded in the Applicant's Statement of Participant Supports:

• - six hours a day of assistance with daily personal activities at a ratio of 2:1 (including weekends and public holidays),
• - two hours a day of assistance with daily personal activities at a ratio of 1:1 (including weekends and public holidays),

• - inactive overnight assistance with daily personal activities at a ratio of 1:1 347 days a year (but pro-rated to the plan reassessment date), and
• - active overnight assistance with daily personal activities at a ratio of 1:1 1 8 days a year (but pro-rated to the plan reassessment date).

(b) the support specified in paragraph (a) is to replace the Applicant's existing funding for assistance with daily personal activities in her current operative Statement of Participant Supports,

(c) all other supports in the Applicant's current operative Statement of Participant Supports are to be replicated from the date on which the support specified in (a) is included in the Applicant's current operative Statement of Participant Supports until the plan reassessment date,

(d) the date by which the CEO must reassess the Applicant's Participant Plan is to remain 12 November 2026.

(2) Pursuant to ss 101(a) of the Administrative Review Tribunal Act 2024 (Cth) the application for review insofar as it concerns the deemed decision to affirm the reviewable decision made on 23 November 2023 and the CEO's decision to approve a Statement of Participant Supports dated 25 January 2025 is dismissed on the basis that it is now lacking in substance.

23, 24 and 25 November 2025 and 2 December 2025

[1] Being the specified plan reassessment date: paragraph 33(2)(c) of the NDIS Act

[2] CEO's Statement of Facts, Issues and Contentions, filed 9 October 2025, at [6].

[3] CEO's Statement of Facts issues and Contentions, 9 October 2025, at [36].

[4] The Applicant's advocate, Ms Patchell, confirmed this in her Closing Submissions in response to the Tribunal's question.

[5] Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; 24 ALR 577 (Drake) at 589

[6] Shi v Migration Agent's Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [45] - [46]

[7] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [60]; National Disability Insurance Agency v WRMF (2020) 378 ALR 449 at 491 [201]

[8] Beezley v Repatriation Commission [2015] FCAFC 165 (2015); 150 ALD 11 at [68]; HPSC and National Disability Insurance Agency [2021] AATA 727 at [85]; National Disability Insurance Agency v Lampard [2025] FCAFC 139 at [31].

[9] see s 3(1)(e), 4(4), 4(8), 17A(1), (2),(3)(b), and 31(b) and (g); National Disability Insurance Agency v KKTB, by her litigation representative CVY22 [2022] FCA 181 at [26]; National Disability Insurance Agency v WRMF [2020] FCAFC 79 (WRMF) at [139]

[13] LNXV by his parent representative LNXV(PR) and CEO, National Disability Insurance Agency [2025] ARTA 2528

[17] Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 (Drake No. 2) at [644-5].

[18] Applying to access the NDIS | NDIS

[19] The early intervention requirements are not relevant in this case.

[20] Kiefel, J's judgement in Rodriguez v Telstra Corp Ltd [2002] FCA 30; (2002) 66 ALD 579 (when her honour was then a Judge of the Federal Court of Australia) at [25] - [26] is cited as authority for that proposition.

[21] See generally, Makita (Australia) Pty Ltd v Spowles [2001] NSWCA 305

[22] This is not a case involving the support for equipment or modifications: Rule 3.1(d).

(1) The CEO may determine that support coordination and other capacity‑building supports are required to assist an eligible participant in finding and moving into specialist disability accommodation.

(2) The plan for an eligible participant must state the support (if any) determined by the CEO under subsection (1).

[24] Productivity Commission, Inquiry Report: Disability Care and Support, Commonwealth of Australia, 2011, Chapters 2, especially at 2.5 "The importance of choice" and 8.

[25] Productivity Commission, Inquiry Report Volume 1, Disability Care and Support, No. 54, 31 July 2011, recommendation 3.1, page 63