Symptoms include global developmental delay, impaired movement and balance, lack of speech, seizures, feeding and sleep difficulties ...

People living with AS require life-long care and close medical supervision ...

Despite the challenges, individuals with AS are renowned for their happy disposition and huge smiles ... However, their happy, loving nature is often overshadowed by the overwhelming difficulties they, and their carers, face daily.[2]

1. PHDK resides by herself in a house in a suburban area. She receives significant supports through the NDIS, including 24 hours of support worker assistance each day, at a 1:1 ratio. PHDK also receives significant informal supports, provided primarily by her parents and her stepfather.
2. As a participant in the NDIS, PHDK has an NDIS plan, which contains a Statement of Participant Supports (SoPS). PHDK's SoPS sets out the supports that are to be provided to her under the NDIS.
3. This review principally involves issues about the level of some of the specific supports already provided for PHDK and some additional supports sought, and requests made, by PHDK's mother on her behalf. The review was filed with the former Administrative Appeals Tribunal (the AAT) in 2023 and therefore has quite a lengthy history. As the hearing of the review progressed, the parties were able to agree on the resolution of some of those supports, and I also made an order regarding the scope of the final hearing, as explained below. This left in dispute, for the purposes of my decision here, issues relating to the provision of 'active' overnight support worker assistance, training for residential support staff working with PHDK and the quantum of support provided for house and yard maintenance.

1. On 15 February 2023 an NDIS plan and SoPS for PHDK[3] was approved by a delegate of the Chief Executive Officer (the CEO) of the National Disability Insurance Agency (the Agency), pursuant to section 33(2) of the National Disability Insurance Scheme Act 2013 (Cth), (the NDIS Act). This plan was for the period from 15 February 2023 to 16 August 2023. It contained total funding of $234,981.68 for this six-month period, which was allocated for:

(a) Core supports - $208,498.33. This was allocated as follows: > > > (i) $8,084.69 for 'low-cost assistive technology items and continence products'; > > > > (ii) $149,160.32 for supports with personal activities of daily living (including self-care, household cleaning and/or yard maintenance); > > > > (iii) $49,915.32 for support to explore and participate in social and community activities; and > > > > (iv) $1,338.00 for transport costs. > > (b) Capacity building supports - $26,483.35. These supports related to plan management, assistive technology needs assessment, specialist behaviour intervention and support coordination.

2. The covering letter from the Agency accompanying this plan advised that the request to 'self-manage' the NDIS funding for these supports was not approved. PHDK's plan reflected that her core supports would be 'plan managed' and her capacity building supports either plan or 'NDIA managed.' The plan described these differing ways of managing NDIS funding in these terms:

Self-managed: I will claim funding from my NDIS plan to pay providers myself or my plan nominee or child representative may do this on my behalf. Providers will invoice me directly for supports I have agreed they will provide.

Plan-managed: My plan management provider will make claims and pay providers on my behalf for supports I have agreed they will provide.

NDIA-managed: Providers will claim payment directly from my NDIS plan based on active service bookings. Where supports are NDIA-managed, I can only use an NDIS registered provider.[4]

1. On 22 February 2023 PHDK's mother, who I will refer to in this decision as 'Ms A', asked the Agency to conduct an internal review of its decision relating to PHDK's SoPS.[5] Ms A is also PHDK's nominee for the purposes of the NDIS.[6] The Agency recorded that Ms A disagreed with the Agency's decisions as to the sufficiency of core funding and for that funding to be plan or Agency managed. Ms A, and also PHDK's Support Coordinator, provided several emails and materials to the Agency in support of this review request.
2. On 21 April 2023 a different delegate of the CEO decided to vary the original decision, pursuant to section 100(6)(b) of the NDIS Act.[7] The delegate approved some requests for support funding but decided not to approve some other requested supports and the request to change the manner of funding management. This led to the provision of a new plan and SoPS for PHDK, dated 21 April 2023.[8] That SoPS, again for a six-month period, increased PHDK's funding for core supports to $294,334.73 and for capacity building supports to $35,717.98.
3. After receiving that internal review decision (the decision under review), Ms A remained dissatisfied with the decisions made by the Agency and on 19 May 2023 lodged an application for review with the AAT on behalf of PHDK, pursuant to section 103 of the NDIS Act.[9]
4. Upon receiving notice of the application for review made to the Tribunal, the Agency filed with the AAT copies of documents relating to that application (the T-Documents), pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
5. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
6. While the review was proceeding, the Agency approved several new SoPS for PHDK, on 6 November 2023, 3 May 2024, 10 October 2024 and 5 June 2025. Additionally, a further SoPS and a new participant plan for PHDK was approved on 29 September 2025,[10] being the day before the review hearing commenced. This plan (PHDK's current plan) addressed some of the supports previously in issue in the review and I will return to it below.
7. Pursuant to section 103 of the NDIS Act_,_ where a review before the Tribunal relates to a SoPS in a participant's plan and that plan is varied to change the SoPS, or a new plan comes into effect, the review application is taken to be a review of those subsequent decisions.
8. The review hearing was held on 30 September and 1 October 2025. The hearing was conducted by video (Microsoft Teams). At the hearing, the Tribunal had before it the T-Documents and other materials lodged by the parties during the review. These relevant evidentiary and other materials were collated in the form of a Joint Hearing Bundle (Hearing Bundle), prepared and filed by the Agency, which became Exhibit 1.
9. At the hearing PHDK was represented by Ms A, assisted by her husband (PHDK's stepfather), who I will refer to as Mr B. Until approximately three months prior to the final hearing, PHDK had been represented by lawyers, who had at times filed written submissions during the review, which were included in the Hearing Bundle. However, Ms A advised that reliance was no longer placed on those materials.
10. A consequence of this development regarding PHDK's representation, together with some other circumstances that are unnecessary to detail here, was that notwithstanding the lengthy period of time that the review had been before the Tribunal, it was only in the two to three months prior to the hearing that the supports in issue were clearly identified and described and that much of the more recent and relevant evidence provided about those supports was filed. I note this not in a way intending to be in any way critical of anything Ms A and Ms B have done in the conduct of the review, but to simply note that the complete picture of what supports were in issue, and the bases for those requests, was the subject of ongoing engagement between the parties up to and even throughout the hearing, particularly in the context of the Agency providing a new plan for PHDK the day before the hearing commenced, addressing at least some of the concerns in issue.
11. In deciding the review, I have considered all of the evidence filed throughout the proceeding. However, as explained below, I generally found the more recent evidence to be the most helpful in my considerations.
12. At the hearing, the Agency was represented by Mr Thomas (Tom) Lettenmaier of Counsel, instructed by Sparke Helmore Lawyers. Agency officers also attended the hearing.
13. Some further materials were admitted into evidence as the hearing progressed. They were:

Exhibit 2 - An email from Ms A dated 24 September 2025, with various attachments (as described below).

Exhibit 4 - An email dated 1 October 2025 from Ms A, providing a response to PHDK's current plan.

Exhibit 5 - Agency breakdown of PHDK's current plan.

Exhibit 6 - Relevant extracts from Social, Community, Home Care and Disability Services Industry Award 2010 (provided by the Agency).

1. Exhibit 2, being Ms A's email of 24 September 2025, attached a detailed response to the primary written submission filed by the Agency during the review, being its Amended Statement of Facts, Issues and Contentions (Agency's Amended SFIC), filed on 5 September 2025.[11] It addressed the supports in issue and also provided some additional evidentiary material provided by PHDK's occupational therapist.[12] Ms A advised that this therapist had recently left her employment and would not be available to appear, as intended, at the hearing. Accordingly, she had arranged for the therapist to provide some written answers to questions composed by Ms A, in lieu of the therapist's attendance. After hearing submissions, I determined to admit this material, noting that the weight to be given to it by me in the consideration of the issues in the review would be impacted by the Agency being unable to test the material provided through cross-examination.
2. During the hearing one witness gave evidence for the Applicant. This was Ms Mannix, the Residential Team Leader of the support services provider that supports PHDK. Ms Mannix gave evidence on 30 September 2025. The Agency did not call any witnesses to give oral evidence.
3. Considerable time at the hearing was spent in working through the updated positions of the parties, as reflected in PHDK's current plan dated 29 September 2025, and addressing issues and questions raised by Ms A in relation to that plan and her other requests in the review.

1. As noted, before the second day of the hearing commenced on 1 October 2025, Ms A prepared an email (Exhibit 4), responding to PHDK's current plan. Among other things, Ms A set out the orders sought by her in the review. One such order related to a request to move funding provided for capacity building supports (behaviour support) to core supports (for assistance with the activities of daily living). The Agency objected to this request being before the Tribunal for consideration in this review, given the late raising of it. In reply, Ms A pointed to the issue being the subject of prior discussions with the Agency and noted in some of her materials.
2. After hearing from the parties, I made an order pursuant to section 53 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) regarding the scope of the review limiting the issues to be considered and excluding the request for reallocation of funding from the scope of the current review. In making this order, as explained to the parties at the hearing, I was particularly mindful of the timing of this issue being raised before the Tribunal, given the existence of earlier timetabling directions requiring the Applicant to confirm the supports in issue in the review and also the considerable time spent during the hearing on the previous day, engaging with the parties to clarify which supports remained in dispute and what the parties' respective positions were.
3. The request in issue is one that Ms A can pursue administratively with the Agency.

1. After the hearing concluded on 1 October 2025, Ms A sent an email to the Tribunal and to the Agency's representative, requesting 'that any published decision protects the identity of our daughter, providers and expert witnesses.'
2. Under the ART Act the Tribunal may make orders restricting the publication or disclosure of information in a review proceeding.[13]
3. Given the very brief nature of Ms A's request, the Tribunal sought further advice from her as to the reason(s) why such orders were sought. Additionally, the Agency was requested to advise of its position. The Agency advised that it had no objection to the Tribunal making a non-publication order regarding the Applicant's name but objected to the making of a wider order regarding other entities or persons. Ms A also filed a more detailed explanation for her request.
4. After considering the parties' submissions and the requirements in section 71(2) of the ART Act, on 16 October 2025 I made a non-publication order pursuant to section 70 of that Act, restricting the publication of the name or any information which would tend to reveal the Applicant's identity. Accordingly, the pseudonym PHDK is used to identify the Applicant in this decision, and I have also adopted pseudonyms to refer to PHDK's mother and stepfather, as publication of their names would obviously identify PHDK. I have also avoided identifying specific locations and persons such as PHDK's treating medical and allied health professionals by name, where possible. My order made some limited exceptions; for example, to allow publication of information to the parties and their representatives, and to members and staff of the Tribunal in acting in the course of their duties.
5. I declined to make the broader order sought by Ms A which would have covered the identity of persons providing services to PHDK. I was not persuaded that here was sufficient reason to depart from the general principle, under section 71(2)(b), that it is desirable that evidence given before the Tribunal is made available to the public.[14]

1. As noted, considerable time was spent across the hearing in identifying what the supports ultimately in issue in the review were. With PHDK's current plan commencing the day before the hearing began, this was quite a fluid situation, as the position of the parties developed across the hearing, with many questions about aspects of supports being raised by Ms A, and up-to-date instructions being sought and provided by the Agency to its legal representatives. I will summarise here the outcome of all of these developments, in terms of aspects of the decision under review that were resolved, and the requested supports that remained in issue at the hearing and hence for my decision.
2. A constant reference point in the analysis of these matters was the summary provided by the Agency in its Amended SFIC, as to the supports in issue as at the date that submission was filed (being approximately three weeks prior to the hearing commencing).[15] This summary was adopted as point of mutual reference at the outset of the hearing and I will therefore continue to use it here, to identify how those supports were addressed.

(a) Request 1 - increased funding for core supports in the amount of $24,430.91. > > (b) Request 2 - removal of group activities, centre capital costs, and accessing the community. > > (c) Request 3 - funding for two hours per night of active overnight support worker assistance; > > (d) Request 4 - funding for six hours per year for training of each residential support staff member. > > (e) Request 5 - funding for 42 hours per year for house and yard maintenance; > > (f) Request 6 - funding for support coordination to be plan managed. > > (g) Request 7 - reimbursement of support coordination from February 2023 to present. > > (h) Request 8 - reimbursement for the installation of blinds and fencing in the amount of $902.00.

3. Request 1 involved, in addition to the funding of the three requested supports that remained in issue and which I will deal with below, a number of complex calculations and aspects. Essentially, concerns existed on the part of Ms A as to the adequacy of funding provided for the support of PHDK with her daily living and community participation activities and whether the provided funding properly took into account matters such as all relevant public holidays and applicable rates, including the funding and calculation of handover rates between support worker shifts.[16] The current plan for PHDK largely addressed these issues.[17] However, it contained an error, in the nature of overfunding of one component, erroneously included in both the core and capacity building supports budgets. The Agency advised that this error would be remedied through the provision of an amended SoPS. As such, the parties confirmed during the second day of the hearing, that save for the requested supports relating to core supports (being active overnight assistance, training, and house and yard maintenance), Request 1 had been resolved to Ms A's satisfaction.
4. The parties confirmed, at the beginning of the hearing, that Request 2 was also resolved with PHDK's current plan.
5. Requests 3 (active overnight support), 4 (training for residential support staff) and 5 (house and yard maintenance), remained in issue. I will deal with my consideration of these requested supports below.
6. The parties also confirmed at the beginning of the hearing that Request 6 had been resolved.
7. Requests 7 and 8 both related to claimed reimbursements. These claims were the subject of some discussion during the hearing, with Ms A ultimately acknowledging the Tribunal's inability to make a specific order for reimbursement,[18] and the Agency acknowledging its willingness to consider Ms A's request for payment of the relevant invoices. For completeness, as it was the subject of some discussion at the hearing, I will note here that the Agency's position was as outlined above and did not constitute an agreement or undertaking to pay those invoices, but reflected its agreement to consider them for payment. In any event, both parties expressed their satisfaction for these two requests to be progressed in that way, and I will not deal with them further in this decision.
8. To conclude, these engagements led to the following requested supports remaining in issue, being:

Request 3 - funding for active overnight support worker assistance; > > Request 4 - funding for six hours per year for training of each residential support staff member (amounting to a request for such training for eight workers); and > > Request 5 - funding for 42 hours per year for house and yard maintenance.

9. For ease of reference, I will continue to use the above numbering to refer to these requests.

1. In undertaking a review, the Tribunal's role is to come to its own independent conclusion, on the basis of the material before it, as to what is the correct and preferable decision. In Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 Smithers J said:

The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which, in its view, was objectively the right one to be made.[20]

The Tribunal effectively 'stands in the shoes' of the maker of the decision under review.[21] In undertaking its review, the Tribunal may exercise all of the powers and discretions that are conferred on the maker of the decision under review.[22] Also, the Tribunal may consider materials additional to those that were before the decision-maker.[23]

1. In review proceedings of this nature neither party bears a formal onus of proof. However, the Tribunal can only make its decision on the basis of material which is probative of and relevant to the matters required by the applicable statute. If an applicant seeking access to a benefit or interest under a legislative scheme does not provide evidence and information sufficient to meet the relevant statutory requirements (which here are the criteria in the NDIS Act relating to supports), they cannot succeed.[24]

1. After PHDK's review application was filed with the Tribunal, but before the hearing, substantial changes were made to the NDIS Act by amending legislation, being the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (the amending Act). Of particular note is the changes that were effected by the amending Act to the NDIS planning provisions, including section 34, and to the definition of 'NDIS support' contained within section 10. These changes were effective from 3 October 2024.[25]
2. The amending Act included transitional provisions. Sub-items 129(1) and (2) of Schedule 1 of the amending Act provide that sections 33, 34 and 35 as in force on and after 3 October 2024 apply to a SoPS approved or varied after that date, irrespective of whether the participant's plan came into effect before, or on or after commencement. This means that in this review the amended provisions are to be applied.
3. Further, pursuant to sub-item 138 of Schedule 1 of the amending Act transitional rules, being the National Disability Insurance Scheme (Getting the NDIS back on Track No.1) (NDIS Supports) Transitional Rules 2024 (the Transitional Rules) and the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (the Miscellaneous Transitional Rules) were made, and apply in the review of a decision concerning a SoPS completed on or after 3 October 2024.

1. The NDIS Act contains a statement of its objects, in section 3(1). They include some which are of particular relevance to decisions about whether requested supports are reasonable and necessary:
   • support the independence and social and economic participation of people with disability (section 3(1)(c));
   • provide reasonable and necessary supports, including early intervention supports, for participants in the NDIS (section 3(1)(d));
   • enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports (section 3(1)(e));
   • promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community (section 3(1)(g); and
   • protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the NDIS (section 3(1)(ga)).

Section 3(3) provides that in giving effect to the objects of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.

1. Section 4 of the NDIA Act provides a number of general principles to guide actions under the Act. They include the following:

4 General principles guiding actions under this Act

(1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.

(2) People with disability should be supported to participate in and contribute to social and economic life.

(3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.

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

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

(6) People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation.

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

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

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

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

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

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

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

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

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

1. Chapter 1 of the NDIS Act also contains a number of definitional provisions, including, within section 10, lengthy definitions of what is, and what is not, an 'NDIS support'. Section 10(1) provides that a support will be an NDIS support if it is declared by NDIS rules to be an NDIS support, either generally or for a class of, participants or prospective participants. Section 10(4) provides that NDIS rules can declare that supports are not NDIS supports.
2. Chapter 3 of the NDIS Act deals with NDIS participants and their plans. Part 1A (section 17A) within that Chapter provides a number of principles relating to the participation of people with disability that must be had regard to 'in performing the CEO's functions and exercising the CEO's powers under this Chapter'. These principles are in addition to those set out within section 4 of the NDIA Act, as set out above. Section 17A provides:

17A Principles relating to the participation of people with disability

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

(1) People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.

(2) People with disability will be supported in their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised.

(3) The National Disability Insurance Scheme is to:

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

(b) enable people with disability to make decisions that will affect their lives; and

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

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

1. Part 2 of Chapter 3 deals with participants' plans. Section 31 within that Part provides for a number of principles relating to plans:

31 Principles relating to plans > > The preparation, variation, reassessment and replacement of a participant's plan, and the management of the funding for supports under a participant's plan, should so far as reasonably practicable: > > (a) be individualised; and > > (b) be directed by the participant; and

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

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

(d) strengthen and build capacity of families and carers to support participants who are children; and

(da) if the participant and the participant's carers agree - strengthen and build the capacity of families and carers to support the participant in adult life; and

(e) consider the availability to the participant of informal support and other support services generally available to any person in the community; and

(f) support communities to respond to the individual goals and needs of participants; and

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

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

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

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

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

1. Section 32 requires the CEO to facilitate the preparation of a plan for a participant in the NDIS.
2. Section 33 specifies matters that must be included in a participant's plan. These include a statement of goals and aspirations (section 33(1)); and a SoPS - which is to be prepared 'with the participant and approved by the CEO' (section 33(2)).
3. In this context, I note the following comments of the Full Court of the Federal Court in the decision in National Disability Insurance Agency v WRMF [2020] FCAFC 79 (WRMF):

... the supports to be provided to a person who qualifies as a participant are intended to accommodate an individual's particular impairments and to assist that particular individual to be a participating member of the Australian community, and to do so on the basis of the values set out in the objects and guiding principle clauses of the Act, as well as the values set out in section 17A of the Act.[26]

1. Sections 33(2)(a) to (e) specify the matters that must be in the SoPS. These include the general supports (if any)[27] that will be provided to the participant (section 33(2)(a)); the 'reasonable and necessary supports' that will be funded by the NDIS (section 33(2)(b)); the date by which or the circumstances in which the Agency must review the plan (section 33(2)(c)); and how the funding for supports (section 33(2)(d)) and other aspects of the plan (section 33(2)(e)) are to be managed.
2. Section 33(3) provides how supports may be specified in a plan:

The supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise.

1. By section 33(5), in deciding whether or not to approve a SoPS under section 33(2), the CEO must:

(a) have regard to the participant's statement of goals and aspirations; and

(b) have regard to relevant assessments conducted in relation to the participant; and

(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and

(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and

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

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

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

1. Section 34 is entitled 'Reasonable and necessary supports.' Section 34(1) specifies the requirements, of which the CEO must be satisfied, in relation to the funding of each support in the SoPS. These requirements are:

(aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);

(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;

(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;

(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

(f) the support is an NDIS support for the participant.

(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and

(b) a participant's disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.

1. All of the requirements in section 34(1) must be met. If a decision-maker is not positively satisfied of all requirements, the claim for support must be rejected.[28]
2. Further, section 34(2) provides that the NDIS Rules may provide methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of above requirements set out paragraphs (1)(aa) to (f) of section 34(1).
3. As noted, the amending Act made changes to section 34; these included adding new sections 34(1)(aa) and (f). The new section 34(1)(f), in referring to an 'NDIS support', imports the definition of that term as set out in section 10. That section provides also that rules may declare whether or not a support is an NDIS support; as noted, transitional rules to this effect have been introduced.
4. There was no dispute in this review about the requested supports in issue being NDIS supports; the dispute was about whether the supports and/or what levels of those supports, were 'reasonable and necessary.'
5. While the phrase 'reasonable and necessary supports' is not defined in the NDIA Act, it has naturally been the subject of consideration. In the case of McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle) Mortimer J (as she then was) noted:

Whether a support is "reasonable" requires a different assessment to whether a support is "necessary". Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO's assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word "reasonable" would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase "reasonable and necessary supports".

Relevantly to this proceeding, the factor set out in s 34(1)(e) ("funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide") goes to both whether a support is "reasonable" (in the sense of it being subject to provision or funding by the Agency) as well as whether it is "necessary" (in the sense of whether it is a support that cannot be provided by others).

In my opinion, the text and context of s 33(5)(c), read with s 34(1) indicates that the CEO (or the delegate or Tribunal) must either be satisfied that a support has the character of being a reasonable and necessary support, or that it does not. Once a support is identified and described (to take an example away from this case, speech therapy lessons three times a week), then the question for the CEO (or the delegate or Tribunal) is whether she or he is satisfied that support, as identified, is reasonable and necessary for that particular participant. It may be open to the CEO to be satisfied that a differently identified support is reasonable and necessary: in this example, speech therapy lessons once a week. That determination can only be made on the basis of probative evidence.[29]

1. The Full Court of the Federal Court has said the following of the phrase in WRMF:

The phrase is a composite phrase. We accept the Agency's submissions that each limb of the phrase should be given work to do. That task is not difficult, or complicated, with these two particular words, which are readily understood as conveying different meanings. However, the Parliament has chosen to use a composite phrase rather than to stipulate two distinct requirements, and therefore, as Gleeson CJ cautioned in XYZ v Commonwealth [2006 HCA 25; (2006) 227 CLR 532 at [19], '[t]here are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts'. > > In our opinion, such a danger is present on the construction arguments presented by the Agency. Both adjectives qualify the noun 'support', but they do so as a composite phrase. It is not fruitful to split them off and consider them separately, just as it is neither fruitful nor appropriate to attempt any exhaustive or authoritative judicial definition of them. > > Nevertheless, there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate. It is not accidental, in our opinion, that Parliament has chosen the term 'participant' to describe individuals who will receive funded support: the choice of that term reinforces, as we have sought to explain, that the driving objective of this Act is the holistic, improved and increased participation by persons with disability in the life of their communities, and in life itself. > > ... > > Ultimately, as the Full Court in McGarrigle recognised, the statutory task of determining the contents of a participant's plan, and what are the reasonable and necessary supports, is a fact‑intensive exercise. More so than in many legislative schemes that confer an administrative benefit, the circumstances of each participant will vary greatly. The exercise is highly individualised. There will be an area of 'decisional freedom' (Minister for Immigration and Citizenship v Li at [28] (French CJ)) for the decision‑maker, about what supports fall within this description, given the circumstances of a particular individual. Provided no substantive legal error attends the choices made, it is possible for reasonable minds exercising the power under s 33(2) to differ. So too on merits review. [30]

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

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

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

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

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

209 The National Disability Insurance Scheme rules

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

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

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

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

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

These Rules are about assessment and determination of the reasonable and necessary supports that will be funded for participants under the NDIS.[31]

1. In the decision of National Disability Insurance Agency v Warwick [2025] FCAFC 100, the Full Court of the Federal Court has explained that the relevant function of the Support Rules is:

... to prescribe, in more detail than the broad criteria in section 33 and section 34, matters that may and may not be included in a statement of participant supports, or matters to which regard is to be had in the preparation or approval of the statement.

1. In the case of McGarrigle, Mortimer J said the following about the Support Rules:

... (the Rules) are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.[32]

2. The Outline contained in the Support Rules provides that Part 3 of the Rules set out criteria or considerations that the CEO is to use in deciding whether the CEO is satisfied in relation to some of the matters set out in Rule 2.3,[33] including value for money (paragraph 2.3(c)); whether the support is effective and beneficial (paragraph 2.3(d)); and taking account of the expectations of what is reasonable to expect families, carers, informal networks and the community to provide in informal supports (paragraph 2.3(e)). Relevantly, this Part of the Support Rules provides:

3.1 In deciding whether the support represents value for money in that the costs of

the support are reasonable, relative to both the benefits achieved and the cost of

alternative support, the CEO is to consider the following matters:

(a) whether there are comparable supports which would achieve the same

(b) whether there is evidence that the support will substantially improve the life

stage outcomes for, and be of long-term benefit to, the participant;

(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);

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

(i) the comparative cost of purchasing or leasing the equipment or

(ii) whether there are any expected changes in technology or the

participant's circumstances in the short term that would make it

inappropriate to fund the equipment or modifications;

(e) whether the cost of the support is comparable to the cost of supports of the

same kind that are provided in the area in which the participant resides;

(f) whether the support will increase the participant's independence and

reduce the participant's need for other kinds of supports (for example,

some home modifications may reduce a participant's need for home care).

Effective and beneficial and current good practice

3.2 In deciding whether the support will be, or is likely to be, effective and beneficial

for a participant, having regard to current good practice, the CEO is to consider

the available evidence of the effectiveness of the support for others in like

(a) published and refereed literature and any consensus of expert opinion;

(b) the lived experience of the participant or their carers; or

(c) anything the Agency has learnt through delivery of the NDIS.

3.3 In deciding whether the support will be, or is likely to be, effective and beneficial

for a participant, having regard to current good practice, the CEO is to take into

3.4 In deciding whether funding or provision of the support takes account of what it is

reasonable to expect families, carers, informal networks and the community to

provide, the CEO is to consider the following matters:

(i) that it is normal for parents to provide substantial care and support for children; and

(ii) whether, because of the child's disability, the child's care needs are substantially greater than those of other children of a similar age; and

(iii) the extent of any risks to the wellbeing of the participant's family

(iv) whether the funding or provision of the support for a family would

improve the child's capacity or future capacity, or would reduce any risk to the child's wellbeing;

(c) for all participants - the desirability of supporting and developing the

potential contributions of informal supports and networks within their

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

Part 5 General criteria for supports, and supports that will not be funded or provided

5.1 A support will not be provided or funded under the NDIS if:

(a) it is likely to cause harm to the participant or pose a risk to others; or

(b) it is not related to the participant's disability; or

(c) it duplicates other supports delivered under alternative funding through the NDIS; or

(d) it relates to day-to-day living costs (for example, rent, groceries and utility

fees) that are not attributable to a participant's disability support needs.

5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the

following (which may be funded under the NDIS if they relate to reasonable and

(a) additional living costs that are incurred by a participant solely and directly

(b) costs that are ancillary to another support that is funded or provided under

the participant's plan, and which the participant would not otherwise incur.

1. Additionally, the Transitional Rules and the Miscellaneous Transitional Rules are also now of application.
2. Here, I note that Rule 7 of the Miscellaneous Transitional Rules outlines, in paragraph (3), that if a SoPS in an old framework plan[34] is approved or varied, the CEO must be satisfied that the support is most appropriately funded or provided through the NDIS and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body.
3. The Agency has also issued some Operational Guidelines which are relevant to NDIS supports, including those guidelines entitled Creating Your Plan and Your Plan, and Reasonable and Necessary Supports. Such guidelines are published on the NDIS website and are described by the NDIA as guidelines that set out some of the NDIA's 'operational information': '[T]hey explain what we need to consider and how we make decisions based on the legislation'. [35].
4. Unlike NDIS Rules, NDIS Guidelines are not made pursuant to a power conferred by the NDIS Act; they are issued in an exercise of executive power.[36] As such, the Guidelines set out the NDIA's policy and provide guidance in how relevant powers are to be exercised. Ordinarily the Tribunal will apply such policy in reviewing a decision, unless the policy is unlawful, or unless its application tends to produce an unjust decision in the circumstances of the particular case.[37]

1. As noted, PHDK's current plan commenced on 29 September 2025. It addressed some of the supports in issue at that time, and also adopted some changes requested by Ms A as to the inclusion in the plan of information about PHDK, and her goals.[38]
2. The section in the plan that sets out information about PHDK states:

I love animals I'm a social young lady who wants to help

YOUR LIVING ARRANGEMENTS, RELATIONSHIPS AND SUPPORTS

I live in my own three bedroom home. I love my family and I enjoy welcoming both my parents to my home. I am the eldest in my family. I love animals and enjoy looking after my pet goldfish, Pixie and Dixie.

My mum describes me as "sunshine". I am always bright and full of energy and ready to face the day. I always try to help when I see my friends and supports doing things.

I wake up very early sometimes, even during the night. If I wake overnight, I am readily redirected back to bed, unless I am unwell. If I am unwell, I may choose to remain awake and prefer the company of my supports. I have my breakfast and get ready for the day's activities. I am enjoying exploring activities and events in my community, making new friends and practising my social skills. I'm a social young lady who wants to help. I am enjoying exploring time on solitary activities and also group activities with family, friends and supports.

1. The plan also records PHDK's goals. They are:
   • During this plan I would like to continue to work on developing my social skills and communication during social outings as I reintegrate with my community post COVID isolation.
   • During this plan I want to stay living in my own home and to develop close working relationships with my care staff.
   • I would like to share my home with a female housemate who is understanding of my communication style, disability support needs and overnight awake activities.
2. PHDK's current plan is for a period of 12 months, with a total funding amount of $742,366.08. This is comprised of:[39]

(a) Core supports funding - $672,023.05. For assistance with daily living activities, social economic and community participation, and consumables. As noted, the Agency identified an overfunding error regarding the double accounting for public holidays, which it was to rectify. > > The core supports funding included provision for house or yard maintenance, at the rate of 2 hours per month, for 12 months (equating to $1,367.52 per year). PHDK seeks additional funding for this support, which I will consider in detail below. > > (b) Capacity building supports - $67,667.03. This includes 30 hours of training in behaviour management strategies. > > (c) Recurring supports - transport support, $2,676.00.

REQUESTED SUPPORT - ACTIVE OVERNIGHT SUPPORT (REQUEST # 3)

1. The context of what is sought for the Applicant with this requested support was outlined by the Agency in its Amended SFIC:[40]

4.12 Funding under the Applicant's current plan includes 24 hours of support worker assistance per day, at the 1:1 ratio. The overnight support, between 10.00pm and 6.00am, is "inactive" overnight support, which is funded at a flat rate and provides a participant with assistance with, or supervision of, personal tasks of daily life where overnight support is needed; the caregiver can sleep when not required to provide support. This support applies if a participant is provided active support for two hours or less overnight.[41] Inactive overnight support therefore incorporates 2 hours of active support per night.

4.13 The Applicant seeks "active" overnight support, which is essentially eight hours of support work, at the hourly rate. The support worker is expected to be awake during this shift; this support is generally provided if the caregiver is providing active support for more than two hours overnight.

1. In her July 2025 submission, Ms A described the requested support as 'the provision of two hours of active support during the period 10pm to 6am, daily ... to fund active support provided to PHDK during the sleepover period by paid residential support staff over and above the allowance provided for by the Agency ...' It can be noted from the Agency's submission that the current support of inactive overnight assistance already provides for two hours of active support per night.
2. The item for that support (inactive overnight support) is described in the following terms in the NDIS Pricing Arrangements and Price Limits 2024-25 document:

This support item provides a participant with assistance with, or supervision of, personal tasks of daily life where overnight support is needed, but the caregiver can sleep when not required to provide support. This support applies to any day of the week and on public holidays. This support item includes up to two hours of active supports provided to the participant for the duration of the period. Providers may claim for the third or additional hour at Saturday rates on weekdays, or at applicable rates on other days (Saturdays, Sundays or Public Holidays).

This support item can be delivered to individual participants or to groups (see Claiming for Group-Based Supports) subject to the rules set out in the NDIS Pricing Arrangements and Price Limits.[42]

1. The evidence before me clearly establishes that PHDK's Angelman syndrome results in her waking at night. The evidence provided by PHDK's neurologist was that there are no medical or behavioural strategies that can be implemented to address this; it is a feature of PHDK's permanent condition.[43]
2. Ms Mannix gave evidence[44] about how PHDK's Angelman syndrome impacts upon her sleep and care needs. Ms Mannix supervises the support worker team providing assistance to PHDK (since about February 2024) and also attends to rostering and payroll authorisation for those workers. Additionally, she regularly works 1:1 shifts with PHDK, which have included overnight shifts. Prior to becoming a team leader, she worked more regularly with PHDK.
3. Ms Mannix's statement advised:
   • PHDK regularly wakes during the worker sleepover period or shift (that is, between 10pm and 6am); altered circadian rhythm is noted to be a factor of Angelman syndrome.
   • PHDK also wakes from time-to-time for other reasons, such as toileting or personal care needs, or in response to environmental stimuli, such as thunder, animal and neighbourhood noises.
   • Most call-ups, being the active support provided to PHDK during the overnight shift, are due to Angelman syndrome.
   • A data chart is kept which records the reason for the awakening/call-up.
   • PHDK's pattern of waking is pervasive and permanent.
   • PHDK's support workers are employed under the Social, Community, Home Care and Disability Services Industry Award 2010 (the SCHADS Award). The SCHADS Award 'provides for payment of a minimum of one hour each time active duty is required during the sleepover period.'
   • PHDK's current NDIS budget of 2 hours per night[45] is insufficient to meet her support needs. Additional funding of at least two hours per day is recommended (Ms Mannix outlined a proposed alternative item in the NDIS Pricing Arrangements and Price Limits document that could apply).
   • Team members supporting PHDK are instructed to return her to bed as quickly as possible after waking (attending to any need that may have led to the waking).
   • At no time has Ms Mannix observed PHDK to have either capacity or the desire to return herself to bed.
4. Also provided with Ms Mannix's statement was a sleep log for PHDK, for the period from 5 to 30 June 2025,[46] and invoicing records for the provision of support during the overnight shift.[47]
5. In her evidence at the hearing, Ms Mannix stated that PHDK's waking at night was unpredictable:

There are times when she wakes up to 12 times in an evening and times when she wakes up from 4am to 6am or down to zero times at all.

1. Ms Mannix confirmed that PHDK required assistance to return to bed, and if she awoke for personal needs (e.g. toileting) she required complete assistance with that. Such occasions could take up to 45 minutes if showering and changing was required. Ms Mannix was of the opinion that PHDK would be at risk if she were left alone, either in her room or elsewhere in her house, when she was awake. She would wander, could become distressed (damaging fittings in the home), and has fallen on occasions. She may also have seizures, as she has epilepsy. Ms Mannix later explained that upon waking, PHDK would always leave her bedroom.
2. Ms Mannix also explained that at times attempts had been made to adjust what I might term 'environmental' factors which might impact on PHDK's sleep, such as managing external light, implementing a clear routine, minimising sounds and the like. However, PHDK continued to wake at night. Ms Mannix also confirmed that PHDK did not sleep during the day.
3. Ms Mannix also gave evidence that staff working with PHDK on sleepover shifts were impacted and experienced fatigue.
4. In cross-examination, Ms Mannix gave the following relevant evidence:
   • The most recent occasion when she personally worked an overnight shift with PHDK was in the past month (before the hearing) and she would have worked up to six such shifts in the previous six months.
   • Her evidence about the frequency of PHDK waking at night was based on her own observations, the team's records and her conversations with team members.
   • Ms Mannix was taken to a sleep log in the Hearing Bundle for the month of June 2024,[48] and asked if it reflected a typical month for the Applicant. Her response was that every month would look different, due to the unpredictability of when PHDK would wake.
   • When asked about her knowledge of how long PHDK had been awake for in the last week (based on logs and staff reports), Ms Mannix advised 'there's been a couple over a couple of minutes, there's been a number of times that she's had to be up for at least half an hour because of personal care.'
   • Ms Mannix was taken to the report provided by PHDK's occupational therapist, dated 28 July 2025,[49] Counsel for the Agency noting that according to that report, Ms Mannix was present at the time the therapist conducted her assessment. The relevant section in that report reads:

PHDK is reportedly a light sleeper and will often wake 3-4 times overnight for a short period of time to either use the toilet or for no identified reason consistent with the literature for Angelman Syndrome.

PHDK's disability is often associated with significant sleep disturbances including reduced sleep duration, difficulty falling asleep and frequent awakenings and there are no strategies or interventions that can reduce PHDK's frequent awakenings throughout the night as it is a result of the gene deletion during embryonic development. PHDK requires assistance and support for redirection following a period of awake time as she does not have the intellectual ability to take herself back to bed. This occurs during the support worker sleepover period from 10:00pm to 6am, 7 days a week. This need for supervision is consistent with the same need for supervision during wake hours outside of this period.

• Ms Mannix was also taken to the written answers the same occupational therapist provided to Ms A, dated 22 September 2025,[50] and specifically the advice from the therapist that she had last had face-to-face contact with PHDK in 2023, and what she wrote about PHDK being a light sleeper was 'merely based on what was reported to me at the time of the assessment.' Ms Mannix's evidence was that while she may have advised that PHDK waking three to four times a night was the case, she disagreed that this was the usual position.
• Ms Mannix also explained a further reference in that document, to PHDK waking up to eight times in a shift (from 10pm to 6am), would have led to what she classified as a 'wake shift', where the staff member would be paid for being awake the entire shift, because of the significant amount of time spent in active involvement with PHDK.
• She disagreed with the proposition that she had stated to the therapist that the majority of occasions when PHDK woke due to her Angelman syndrome involved her requiring assistance for a short period of three to five minutes, stating that it might be up to ten minutes. Ms Mannix also disagreed that PHDK's wake times were not 'completely random', and with the suggestion that such wake times were between two and eight times per night, taking the support worker three to five minutes to get PHDK back to bed.
• Ms Mannix explained her application of the SCHADS Award as being based on her employer's understanding, and as follows:
  • If a worker was up once or twice in one hour during the overnight shift, they would be paid for a minimum one hour.
  • If, for example, they awoke between 2 and 3am, then again between 4 and 5am, that would be two payments (of one hour each, that being the minimum payment).

1. The Agency provided a document containing relevant sections of the SCHADS Award; this became Exhibit 6.

1. In the Applicant's July 2025 submission, the medical evidence about the impacts of PHDK's Angelman syndrome was noted, and reliance was placed on the occupational therapist's report, Ms Mannix's statement and the June 2025 sleep log (noting that period was referrable to PHDK's then current plan, commencing 5 June 2025). I note that similar contentions were made in the earlier submission filed in June 2025, responding to the Agency's original SFIC. Additionally, that earlier submission stated:

The support needs of the Applicant are no different at 2am as they are at 10am. The Applicant is fully reliant on other persons for self-care and safety regulation functions independent of the time of day.

1. Ms A's email and statement of 24 September 2025 noted that:
   • the data submitted with her July 2025 submission 'clearly stated that the first two call-ups of each day were excluded as these were funded in the sleepover allowance. The data supplied is the unfunded service that is the basis for the request for an additional two hours per night.'
   • PHDK's support service provider must pay staff lawfully.
   • The fact that the NDIS has created night rates indicates an expectation some participants would have support in the hours from 12am to 5am; PHDK is such a participant.
   • The constant waking by PHDK creates fatigue risks for workers which would be ameliorated by the payment of the requested support, and the Tribunal may wish to consider funding the full night shift.
2. Ms A also provided a calculation of the cost of the additional two hours per night, being in the order of $82,000 for a year.
3. In closing submissions at the hearing, Ms A noted Ms Mannix's evidence as to the application of the SCHADS Award. Ms A also made some submissions about authorities relied on by the Agency (as outlined below).

1. The Agency's Amended SFIC noted the evidence relied upon by the Applicant in support of the request for active overnight support, as to PHDK's frequency of waking and requirements. The Agency's contentions were as follows:

4.17 The Respondent contends that the nature of support required justifies the provision of inactive overnight support. This type of support is designed for support workers who can sleep during the shift but will need to provide limited assistance or supervision throughout the night, such as taking the participant back to bed, occasional toileting or medication. This is commensurate with the type of support required by the Applicant overnight.

4.18 In the premises, the Respondent contends that: active overnight assistance (as opposed to inactive overnight assistance) is not necessary to address the needs of the Applicant arising from an impairment in relation to which the Applicant meets the disability or early intervention requirements;[51] does not represent value for money in that the costs are reasonable, relative to the benefits achieved;[52] and is not likely to be effective or beneficial.[53]

1. In closing submissions, Counsel for the Agency contended that:
   • What the applicant is seeking amounts to active overnight support, which is not reasonable and necessary, and that the Agency's position was that the current support, of inactive overnight support, which provides for up to two hours of active support, is adequate.
   • The NDIS Pricing Arrangements and Price Limits document definition of 'night-time sleepover support' was noted. It is:

A Night-time Sleepover Support is any support to a participant delivered on a weekday, a Saturday, a Sunday or a Public Holiday that:

• - Commences before midnight on a day and finishes after midnight on that day; and
• - Is for a continuous period of eight (8) hours or more; and
• - The worker is allowed to sleep when they are not providing support.

• Additionally, the definition of 'Weekday Night Support' for Disability Support Workers was noted, being 'any support to a participant that commences at or before midnight on a weekday and finishes after midnight on that weekday, or commences before 6:00 am on a weekday and finishes on that weekday (unless it is a Public Holiday, Saturday, Sunday or Night-time Sleepover Support).'
• The position of the Applicant, and also Ms Mannix, as to the supposed insufficiency of the current support provided gives rise to two issues; being first, the extent of support work required and, secondly, the operation of the SCHADS Award.
• Dealing with the first of those issues, Counsel raised several criticisms of Ms Mannix's evidence, noting there was a divergence between Ms Mannix's evidence and what was reflected in the occupational therapist's report, as to PHDK's waking. Ms Mannix's agreement that the amount of time the support workers were up for was typically between three to ten minutes was noted (for times when PHDK work up for no attributable reason, as opposed to those times when she woke for personal needs where self-care assistance might be required, or because of an environmental factor).
• The June 2025 log more closely reflected the information provided to and reported by the occupational therapist, and the Tribunal could proceed to assess the requested support on that evidence.
• On that evidence, the two hours of support provided in the current support was clearly adequate.
• Alternatively, If Ms Mannix's evidence that PHDK's waking was 'completely random' was accepted, there were periods, as per the June 2025 log, that reflected little waking activity.
• As to Ms Mannix's evidence regarding the application of the SCHADS Award in how PHDK's support workers were paid when required to assist PHDK upon her waking during the sleep-over shifts, Counsel submitted that this was not how the relevant SCHADs award provision, being 25.7, should be applied. The Agency's contention was that the Award required payment of a minimum of one hour if work was performed but beyond that the worker should be paid for the amount of work performed; for example, if a worker performed 1.2 hours of work during the shift across two occasions, they would receive the one hour minimum payment and then payment for the 0.2 of the hour worked, rather than for another full hour, as Ms Mannix's service was doing.
• In support of this interpretation, Counsel referred to three authorities.[54]

99. For the reasons I have explained below, I have found it unnecessary, in arriving at my decision about the requested support, to determine the issue relating to the SCHADS Award. I will however note that had that been considered to be necessary, I would have been prepared to so consider the 'extrinsic factor' of the requirements imposed by the SCHADS Award, in determining what was reasonable and necessary for PHDK (see the decision of Senior Member French of the Tribunal in Myers and National Disability Insurance Agency [2026] ARTA 37).[55]

1. All of the evidence provided (medical, Ms A, Ms Mannix and the sleep logs) reflects that PHDK regularly experiences episodes where she wakes at night for no evident reason, and that this is a recognised symptom of Angelman syndrome. I also accept that PHDK will wake at other times, for personal needs (such as toileting), or because of some intervening environmental reason, such as noise. I further accept that when PHDK wakes, because of her impairments, she requires support to attend to any personal needs and to settle her and return her to her bed, on every occasion. I make these findings.
2. None of these matters are in dispute, they are why the current support of inactive overnight assistance is provided. As explained, that support provides for up to two hours of active support assistance to be provided to the participant per shift. The Agency contends that is sufficient, on the evidence. The Applicant contends it is not and that additional support, which would necessarily take the form of active overnight support (as the Agency has identified), is reasonable and necessary.
3. In looking at that requested support and what support PHDK needs during the overnight component of her 1:1 support, I have found the most helpful evidence before me is the June 2025 sleep log data.[56] It is also some of the more contemporary evidence.
4. In that respect, I do not accord significant weight to the evidence in the report provided by PHDK's occupational therapist and also the answers that therapist provided to Ms A's questions, as noted above. Leaving aside the concerns expressed by the Agency upon the reception into evidence of those written answers and the therapist's unavailability to attend the hearing and give evidence, including through cross-examination, the written answers provided by the occupational therapist clearly state that she had not seen PHDK since 2023, and that what she reported was based on her phone call (with Ms Mannix) and her earlier report.
5. Counsel for the Agency also submitted that in some respects Ms Mannix's evidence was unsatisfactory on the key issue around the frequency of PHDK's waking. In this respect, I do note the divergence between the evidence Ms Mannix gave as to the frequency of PHDK waking, as opposed to what the occupational therapist reported, being reportedly based on information provided by Ms Mannix. I am not persuaded however that Ms Mannix was deliberately seeking to be evasive in her evidence, but the divergence does impact the weight I might attach to some aspects of her evidence.
6. For these reasons, as I have stated, I find that the most reliable evidence as to what PHDK's needs are at night is that provided by the above sleep log.
7. That log records data for each overnight shift in the period from 5 June to 30 June 2025, about PHDK's bedtime; the timing of any episodes when she woke; the length of time of those episodes; and when she woke up for the day, on the following morning. Further, the log records total call-ups and helpfully provides colour-coding of the reason attributed by the attending support worker to PHDK waking; being alternatively because of Angelman syndrome, environmental reasons or personal care. It also records if PHDK was unwell, noting this was the case on three nights (due to 'pitting oedema').
8. The log depicts the following for the 25 'nights' in the above period (noting PHDK was away with her family one evening, and support was not required that night):
   • The most call-ups on any one 'night' was three. This occurred on one night only. Each was attributable to Angelman syndrome waking, and the three episodes were respectively of two, three and two minutes duration. However, the last occurred at 8.40am, before PHDK woke for that day at 9.15am and was therefore not in the overnight shift period anyway.
   • On five nights there were two call-ups. On four of those nights one call-up occurred prior to midnight. The longest period involved was three minutes.
   • On 10 nights there was a single call-up.
   • On 10 nights there were no call-ups.
   • The longest period of any call-up was five minutes.
   • There were no call-ups on any of the three nights when PHDK was recorded to be unwell because of oedema.
9. The log depicts that on no occasion were more than two call-ups required during the overnight shift.
10. The log is somewhat consistent with that aspect of Ms Mannix's evidence as to the usual period of PHDK's waking and need for assistance being between three and ten minutes, albeit pointing to the lower end of that range and not depicting anything greater than five minutes. It is not consistent with the claim that PHDK wakes up to 12 times per night; there is no evidence of that in the data provided.
11. I accept that the earlier sleep log from June 2024 showed more waking episodes for PHDK. However, the June 2025 log is the more recent and, for the reasons explained, it stands as the clearest evidence before me, across a relatively recent period of nearly one month, as to what PHDK's needs are during the overnight shift.
12. I find that this evidence simply does not support the claims made on behalf of the Applicant regarding the need for the requested support. I also find that this evidence reflects the Agency's contention that the current provision of inactive overnight support, which provides for up to two hours of active support, is sufficient to meet PHDK's needs.
13. For these reasons, I am not persuaded that the requested support is reasonable and necessary to address PHDK's needs arising from the impairments in relation to which she meets the disability requirements in the NDIS Act (section 34(1(aa)). Nor am I satisfied that the requested support meets the value for money criteria in section 34(1)(c). It should not be included in PHDK's SoPS.
14. Finally, regarding the issue of how the SCHADS Award should be interpreted, in light of my above findings and decision, it is unnecessary to determine that issue here. I have found that the requested support is not reasonable and necessary having regard to the evidence about PHDK's support needs, rather than needing to consider whether the support that is currently provided to meet those needs is insufficient because of how it is being expended, because of the interpretation taken by Ms Mannix's employer as to how overnight support workers are remunerated.
15. However, and notwithstanding that I have not found it necessary to come to a view on that issue, it is acknowledged that this was a matter of dispute between the parties in this review, and likely to be one of ongoing importance to PHDK and her family; the provider of her support services, and more broadly to the Agency and the financial sustainability of the NDIS. Further, given the obligations upon employers to ensure employees are paid at the least their minimum rates and entitlements, and the serious penalties that can attach to breaches of those obligations, it would seem appropriate for the Agency to consider and develop a settled position on this aspect, such that it might use to consult with and inform providers, in order to ensure that Scheme funds are deployed as required to properly fund needed supports, and that providers of services through the Scheme are fairly paid.

REQUESTED SUPPORT - FUNDING FOR TRAINING (REQUEST # 4)

1. The Applicant's requested support was outlined in these terms in the document dated 20 June 2025 prepared by Mr B, responding to the Agency's original Statement of Facts, Issues and Contentions:

Staff Training - The Pricing Arrangements and Price Limits publication allows for Participants to have six hours per annum for shadow shifts to train new staff. The applicant is neurologically impaired, non-verbal and has a history of physical aggression. Whilst the behaviour management requirements in 2025 do not require additional funding for Positive Behaviour Support new staff are required to be trained on the techniques required to communicate with the Applicant, her routines and medication administration. Each worker requires 4 to 6 hours each for these functions to be complied and competence achieve. It is reasonable to budget for eight workers across a twelve month period for a residential service operating 7 Days. The request for 48 hours is based on 8 staff x 6 hours per annum.[57]

1. Ms A's submission of 31 July 2025 expressed the request as:

The Applicant seeks funding for 6 hours each per annum for Residential Support Staff. The Applicant is non-verbal and is funded High Intensity 1:1, 24 hours per day. There is a necessity for the safety and well-being of both the Applicant and her residential support staff that they are adequately trained in her routines (AM and PM) and also the preparation and administration of her Medication routines. A supporting statement from the Residential Team Leader attached[58] is to be read in conjunction with the recommendation of Neuropsychiatrist [name omitted] and Functional Capacity Assessment dated July 2025 by [PHDK's occupational therapist].

The required funds using the current PAPL[59] in force is 6hrs x 8 Staff = 48hrs x $75.98 = $3,647.04.[60]

1. In her email submission of 24 September 2025 Ms A stated:

Request 4 - This is not a request for funding to train support staff in behaviour management techniques or strategies. It is a request for approval to extend the PAPL page 37 & 38 conditions of 6 hrs per annum, to be 6hrs per person using funding already allocated in the plan. Access to the funding is a separate matter we see the Tribunal Assistance to determine.

This funding is sought to support induction training for Residential Support Staff joining PHDK's team. The training is best delivered by the Residential Team Leader, who, is not a registered behaviour support practitioner, and is not required to be for this role. The proposal of the Respondent is not helpful as the funds cannot be accessed by those who are best placed to provide the service (refer Schaefer Case). The purpose of this training is to ensure staff understand the specific routines and nuances of PHDK's personal and intimate routines of daily living which is critical given her non-verbal status and complex history. These are not behaviour support needs as supported under the legislation for that support type.

[PHDK's neurologist] as clinical lead, has endorsed the independent living program which was written years ago by an experienced clinician familiar with PHDK, her disabilities and trajectory of neurodegenerative decline of Angelman Syndrome. The NDIS funded this program.

We simply seek access to existing funding to train new staff to communicate effectively with PHDK, learn her routines and how to implement the activities of Daily Living with PHDK. This program has been instrumental in the reduction of critical incidents and maladaptive behaviours seen years ago before the program was fully rolled out. I urge the Tribunal to consider the savings to the NDIS reflected in the unused Behaviour Management funds. If a dollar measure is needed to assess PHDK's independent living program effectiveness, that is the logical starting point.

[PHDK's neurologist] is dual certified Neuropsychiatrist and Neurologist. He has a special interest in seizure disorders and he endorses PHDK's stakeholders' efforts and encourages the funding of same to continue. The proposed use of the funds is not general disability or professional development training (which already provided to the Residential Support Staff and funded by the provider) but is targeted to PHDK's individual needs and essential to maintaining her stable and peaceful life at home and in the community.

Training new staff to address PHDK's needs arising from Angelman Syndrome, Seizure disorder and global neurological deficits (including but not limited to intellectual impairment) is both reasonable and necessary as she lives alone and does not have the means to convey this training herself as she has global deficits including being nonverbal as she lost the ability to sign in 2020 as her condition progressed.

Having trained staff who know the procedures and routines will assist PHDK to pursue her goals (specifically goals 1 and 2) and reduce risks for all; trained staff will also be able to safely transport and accompany PHDK into her community affording her a quality of life; the supports represent value for money as the funds are already allocated in her plan we are simply seeking they be moved to Capacity building from Positive Behaviour Support (per Schaefer Case previously detailed); it is reasonable that a nonverbal participant with complex needs has funding available to train her residential support staff in the routines of the day-to-day living and is reflective of current good practice in the community, best known as buddy shifts.

Per the OT reports PHDK is profoundly impaired and compromised across Communication, Social Interaction, Learning, Mobility, Self-Care and Self-management Domains. It is imperative her Team are trained to best support her and to mitigate any risks for themselves.

1. It can be seen that the 24 September 2025 formulation of this requested support contained an element of requesting that existing funding for capacity building supports (behaviour support) in PHDK's budget be allocated to the core supports budget. As noted above, that aspect was determined by me to be outside the scope of the hearing. However, the requested support still falls to be considered, irrespective of that aspect, and as noted below in the Agency's contentions the availability of that funding, albeit within the capacity building budget in PHDK's plan, is relevant to the determination of this requested support.
2. In her written statement, Ms Mannix said the following of this requested support:

PHDK is nonverbal. She used to sign however as her Angelman Syndrome progresses she has lost the ability to effectively communicate through signing. She now primarily uses gesture and grunting with changes to tone to indicate pleasure vs displeasure etc.

PHDK has a history of challenging behaviours such as pinching, biting, pulling hair, spitting etc. She has been stabilised in her residential facility since transitioning to the [name omitted] Program in 2019.

The independent living program which was funded by NDIS in 2019 remains in place today. The program has been successful because of its long-term implementation and the consistent application of routine, which has supported stable and positive outcomes for PHDK as evidenced in the successful transition of PHDK moving out of home and maximising her quality of life whilst reducing the level of risk of harm to self and others through the eradication of the complex behaviours for most scenarios.

To maintain this level of success and to ensure the Workplace health and safety for the residential team it is requested that the Tribunal considers the request for 6hrs Training per

residential worker when first meeting and working with PHDK.

This time is spent on Buddy (shadow) shifts including both AM and PM routines and medication preparation and administration. It is imperative that the new workers receive adequate training as PHDK is unable to participate in communicating her needs to the Workers. The current provision in the Pricing Arrangements and Price Limits 2025-26 version 1.0 effective from 1 July 2025 of 6hrs per annum is grossly insufficient in a 24/7, High Intensity support environment with a Team of Residential Support Staff.[61]

1. The Applicant's contentions regarding this requested support are evident from the above submissions, and the evidence given by Ms Mannix in her statement.
2. The Agency's relied on the contentions made in its Amended SFIC, namely:[62]

4.24 The cost of training and upskilling are factored into the base price limits for supports and are not billable non-face-to-face supports.[63] Whilst the Respondent acknowledges that the Applicant has unique needs, the Respondent contends that it is the provider's responsibility to ensure their staff are adequately trained and have the necessary skills to implement the Behaviour Support Practitioner's recommendations.

4.25 There is an absence of evidence supporting a need for training beyond what would generally be provided to support workers, the frequency of that training, details of what that training would entail, and by whom. In the absence of that evidence, the Tribunal ought not be satisfied that the level of training claimed meets the reasonable and necessary criteria in section 34.

4.26 The Respondent therefore contends that this support is not most appropriately funded or provided through the Scheme, and that it is more appropriately funded or provided through other systems.[64]

4.27 Further, the Applicant's current SOPS allocates funding for 60 hours of specialist behavioural intervention support and 30 hours for behaviour management planning including training in behaviour management strategies. It is otherwise open for the Applicant to utilise the funding for training with a behaviour support practitioner to train support workers. At this stage, the Respondent contends that it is unclear whether the Applicant is aware that this funding is available. If so, the Respondent contends that it is unclear why an additional 18 hours is required to train the Applicant's staff, noting they should already have appropriate training to provide the Applicant with the required

4.28 The Respondent appreciates that the Applicant's challenging behaviours remain prevalent, however contends that there is insufficient evidence to provide that the allocated funding for staff training does not meet the Applicant's requirements. It is unclear why a further 18 hours of support worker training is required in these circumstances. The Respondent contends that this support does not represent value for money and is not likely to be effective or beneficial.[65]

1. In closing submissions, Counsel for the Agency additionally noted the relevance of the provisions in the NDIS Act requiring the need to ensure the financial sustainability of the NDIS.

1. The requested support seeks additional funding for six hours of training for eight support workers, per year.
2. I accept the Agency's submission that current NDIS pricing arrangements for providing support worker assistance factor in the costs of training and upskilling workers and, as such, those costs fall to the provider of support worker services, rather than the Agency.
3. While I acknowledge that PHDK has complex needs, which in turn impact upon what is required of those providing support worker assistance to her, I find that this is not an uncommon situation given the purposes of the NDIS and the significant thresholds that must be met for prospective participants to obtain access to the Scheme.[66] Ms Mannix's statement noted that the intended training would address issues such as medication preparation and administration which, to my mind, should be a fundamental and basic element of any training and induction that any responsible service provider would undertake, in introducing new workers to any NDIS participant.
4. Ms A was very clear in her email of 24 September 2025 that this support was requested for induction training and not for training support staff in behaviour management techniques or strategies. For the reason set out above, I find that this induction type training is more appropriately provided or funded through the support services offered by PHDK's provider.[67]
5. However, given the evidence provided by Ms Mannix and the more general bases for the requested support as articulated by Mr B and Ms A in their earlier written submissions of June and July 2025, I will move beyond the consideration of the provision of this induction type training of PHDK's support workers, to address Ms Mannix's specific contention that additional training for those working with PHDK is needed because of PHDK's challenging behaviours.
6. PHDK's current SoPS recognises the need for training of support workers in managing PHDK's behaviours and provides funding for a behaviour management plan and training in behaviour management strategies, at a rate of 30 hours per year (and funded at a higher rate than that sought for the requested support).[68] The Agency has confirmed in its submissions that this funding can be used for a behaviour support practitioner to provide training to PHDK's support workers.
7. Considering the available evidence, I am not satisfied that PHDK's needs are such that additional training support, beyond first what is already factored into the base pricing arrangements of the NDIS, and secondly what is specifically provided for in PHDK's plan, is required at this time. There is a lack of evidence as to why the 30 hours of behaviour support training that is included in PHDK's SoPS is insufficient to meet the needs of PHDK and her carers and why the additional 18 hours of training that is sought is required (beyond providing induction training), and also as to how it might be utilised, so as to be effective and beneficial for PHDK.
8. I accept the Agency's contention that the evidence does not establish that the requested support meets the criterion of value for money in section 34(1)(c), nor the effective and beneficial criterion in section 34(1)(d).
9. Accordingly, I find that the requested support of additional funding for six hours of training for eight support workers per year does not meet Rule 7 of the Miscellaneous Transitional Rules nor the above section 34 criteria and should not be included in PHDK's SoPS.

REQUESTED SUPPORT - INCREASED FUNDING FOR HOUSE AND YARD MAINTENANCE (REQUEST # 5)

1. As explained above, PHDK's existing SoPS provides for support for house and yard maintenance work, at a rate of two hours per month, which equates to 24 hours of such support at a cost, on current funding rates, of $1,367.52 each year. The NDIS Pricing Arrangements and Price Limits document that was in evidence reflected an applicable 'national' hourly rate of up to $56.98 for 'house and yard' maintenance, described as 'performing essential house and/or yard activities that the participant is not able to undertake.'[69]
2. The support requested for PHDK seeks an increase in this support, so that it is funded at the rate of two hours per fortnight during the months of summer, autumn and spring, at a total cost of not less than $2,373.38 per year.[70]
3. In her written submission of 31 July 2025,[71] Ms A contended that the current funding of two hours per month 'is inadequate to meet [PHDK's] tenancy obligations under her Residential Tenancy Agreement.' Ms A provided three quotes for the annual provision of these services.[72] They were as follows:

(a) Quote # 1 - for garden maintenance, being mowing and edging of nature strip and front lawns, all fence lines and garden beds, blowing down paved areas and keeping the hedge (1.5m x 12m); for two hours per month for three months of winter, and four hours per month for nine months of summer, autumn and spring = $2,640.00. It would appear this quote reflects an hourly rate of $60, which is slightly above the NDIS Price document rate. > > (b) Quote # 2 - for mowing and gardening; for two hours per month for three months of winter (monthly service) and four hours per month for nine months of summer, autumn and spring (fortnightly service) = $2,373.38. This quote reflects an hourly rate of $51.80, which is below the NDIS Price document rate. > > (c) Quote # 3 - for 'lawn mowing and edging, blow tidy'; for two weeks summer periods, four weeks winter periods, 'approximately 20/22 mows per year = $1,386.00.' This quote reflects an hourly rate of $33 per labourer, but specifies two workers attending, at a combined hourly rate of $66, which is above the NDIS Price document rate.

4. In giving her oral evidence, Ms Mannix confirmed that she was familiar with the property where PHDK lives. She described it as a single storey house, with a driveway and front lawn (no back lawn), and a hedge around the front and rear of the property. She described the hedge as 'decently high ... about six foot.' Ms Mannix was able to estimate the size of the front lawn to be about half the size of a tennis court.
5. Ms Mannix also confirmed in her oral evidence that PHDK's support workers were not able to complete the garden care tasks required, that being outside the scope of their engagement, and their insurance coverage.[73]
6. I note that PHDK's occupational therapist provided a brief description of PHDK's home environment in a report that was in evidence[74] However, this largely addressed internal and access features and did not assist with the consideration of this requested support.

1. Ms A submitted that PHDK has obligations under her tenancy agreement to maintain her home, and she cannot do this herself due to her impairments. Those two points were common ground between the parties; as is recognised by the current provision for support for house and yard maintenance in PHDK's SoPS. It was not contended that the support workers assisting PHDK should have any responsibility in providing this service.
2. Ms A further submitted that the present funding provided for this support was inadequate. Ms A contended that the requested support, being an increase of the current funding for this support to have the support provided fortnightly in the spring, summer and autumn, and monthly in winter, was reasonable and necessary. She explained that this request was based on Quote # 2 above, being the lower of the two quotes obtained that addressed lawn and hedging in its calculations.[75]
3. The Agency contended that 'the weight of the Applicant's evidence largely quotes two hours of lawn maintenance, which points to this level of support being sufficient to meet the Applicant's disability needs. Reference was made to Quote # 3 above, which was said to equate to fortnightly sessions, and that the Agency 'has already allocated funding for this level of support ...' Further, that the evidence does not sufficiently demonstrate that this level of funding is insufficient, why it is insufficient, and how the additional funding sought would improve the life stage outcomes or be of long-term benefit to PHDK.[76]
4. In reply, Ms A suggested that the Agency had erred in its reading of the quotes submitted. Ms A essentially contended that Quote # 3 could be dispensed with, on the basis that it did not include all services required, by omitting any reference to hedging work.[77]

1. There was no issue as to the requested support being an NDIS support, required by PHDK because of her impairments.[78] In reality, the contest about this requested support relates to the value for money consideration, under section 34(1)(c).
2. I accept that yard maintenance per se is a reasonable and necessary support for PHDK. There is no dispute as to the obligations, arising from her tenancy situation, as to maintaining her home, including the yard and garden areas. I accept also, consistent with the principles guiding actions under the NDIS Act, that PHDK has the right to live with dignity in a home that is tidy, well-maintained and safe for her.[79] The evidence clearly establishes that she requires support to do this, in maintaining the external areas of the property.
3. I accept also the contention that monthly services are likely to be inadequate to so maintain PHDK's house and yard during the warmer months of the year, given the reality that she resides in a city in a subtropical area with warm temperatures and higher rainfalls at those times.
4. However, my difficulty in determining this requested support arises because of the very limited evidence that is before the Tribunal as to what is needed to maintain the yard and garden at PHDK's home. There are no photos or measurements of the relevant garden areas in evidence, such as might usefully inform a view as to the amount of time that might be required to perform the yard and garden maintenance tasks that would be necessary to keep PHDK's home in the condition I have described above. There is a lack of other evidence as to the types and frequency of services that would be required to maintain the yard and garden to this standard.
5. This situation can be further illustrated by considering the current funding provided, and the quotes obtained by Ms A. The providers of those quotes appear to have all reflected what was asked of them, regarding the requested support being for two hour fortnightly services in summer, autumn and spring and monthly services in winter, rather than the frequency of services they considered to be necessary to maintain the yard. Additionally, with the exception of Quote # 1, the scope of works to be performed pursuant to each quote was unclear.
6. Having regard to the evidence given by Ms Mannix as to the modest nature of the garden area, I am not persuaded that two hours would be necessary to attend to lawn mowing, edging and clean-up work, on every service. Obviously hedge maintenance work, given the size of the hedge as described in Quote # 1 and by Ms Mannix, would take some longer time, but such work might be reasonably anticipated to only be required a handful of times each year, and certainly not on every visit. However, there is a lack of evidence before me about this. I do note that in the document dated 20 June 2025 prepared by Mr B, responding to the Agency's original Statement of Facts, Issues and Contentions, the request was expressed as:

2hrs per fortnight (summer, spring and Autumn) and 2hrs per month (winter months). Additional 2hrs four times per year to attend to hedging.[80]

1. While the current allocated hours in the support for house and yard maintenance may not cover the number of service visits that are likely to be reasonable and necessary in a year, I am not satisfied, on the state of the evidence, that the funding attached to the current support is inadequate. This is what Quote # 3 essentially reflects; being for increased visits (compared to the current services), but for similar funding to the current level of support provided. The contention by Ms A that this quote does not include hedging work would seem to be an assumption, there being no other evidence before me that addresses that issue. This is similarly the case with the assumption that Quote # 2, upon which PHDK's request is based, includes hedging work in its noting of 'mowing and gardening'.
2. Further, I note that the Agency's current funding for house and yard maintenance is included within PHDK's core support funding for assistance with daily living activities and, as such, is a flexible support. That is, there is choice over the supports that can be bought with that funding. While the allocated funding needs to last in line with the funding period in PHDK's plan, there is flexibility as to how the required services can be purchased in terms of, for example, the frequency and/or timing of the provision of those services.
3. Having regard to the limited nature of the evidence going to this requested support, I am not persuaded that the funding currently provided, which can be used flexibly, is insufficient to maintain PHDK's yard to a good standard. It follows that I am not satisfied that the requested support, which seeks an increase in the level of support and funding provided for house and yard maintenance, represents value for money and is a reasonable and necessary support. I find that section 34(1)(c) is not met for the requested support of increased funding for house and yard maintenance, and that it should not be included in PHDK's SoPS.

1. For the above reasons, I have found that none of the three requested supports should be included in PHDK's SoPS.
2. Accordingly, I affirm the decision under view.

[1] Exhibit 1, Joint Hearing Bundle (Hearing Bundle), Document R3, Respondent's Amended Statement of Facts, Issues and Contentions (Agency's Amended SFIC), filed 5 September 2025, pages 500-518, at [2.2].

[2] See Angelman Syndrome - Angelman Syndrome Association Australia

[3] Hearing Bundle, T-Documents, Document T25, NDIS Plan, 15 February 2023 - 16 August 2023, pages 90-103.

[5] T-Documents, Document T18, Extract of Interaction notes, request for internal review of a decision; 22 February 2023, page 56.

[6] See Chapter 4, Part 5 of the National Disability Insurance Scheme Act 2013.

[7] T-Documents, Document T2, Internal Review Decision, 21 April 2023, pages 16-23.

[8] T-Documents, Document T26, NDIS Plan, 21 April 2023 - 20 October 2023, pages 104-116.

[9] T-Documents, Document T1, Application for Review of Decision, 19 May 2023, pages 1-8.

[10] Exhibit 3, NDIS Plan, 29 September 2025 - 28 September 2026.

[11] An earlier Statement of Facts, Issues and Contentions was filed on 6 June 2025; Hearing Bundle, Document R2, filed 6 June 2025, pages 491-499.

[12] A functional capacity report from this therapist was in evidence; Hearing Bundle, Document A5, Submission of Applicant, dated 31 July 2025, Appendix B (report of 28 July 2025), pages 446-454.

[13] See also the then applicable practice direction, being the Administrative Review Tribunal (Common Procedures) Practice Direction 2024.

[14] See Azzopardi and Secretary, Department of Social Services (Social services second review) [2019] AATA 105, for a discussion of the principles applying in the making of such orders.

[15] Agency's Amended SFIC, at [3.1].

[16] The Agency's NDIS Pricing Arrangements and Price Limits 2024-25 was in evidence; Hearing Bundle, Document A5, Appendix A to submission of the Applicant, 31 July 2025, pages 21-418.

[17] See the breakdown of that plan, being Exhibit 5.

[18] See PBZB and National Disability Insurance Agency [2023] AATA 3385, at [37]. The Agency also contended that Request 8 related to costs incurred in 2020 and an earlier SoPS outside of those decisions under review in this proceeding; Agency's Amended SFIC, at [4.52].

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

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

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

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

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

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

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

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

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

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

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

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

[34] PHDK's plan is an old framework plan - see section 32A of the NDIS Act.

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

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

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

[38] As outlined in an NDIS Change of details form completed by Ms A, dated 27 September 2025, which was part of Exhibit 2 (Ms A's email of 24 September 2025).

[40] Agency's Amended SFIC, at [412]-[4.13].

[41] Citing the NDIS Pricing Arrangements and Price Limits 2024-25 guide, at page 252 of the Hearing Bundle.

[42] Hearing Bundle, Document A5, at page 252.

[43] See, for example, the report of PHDK's neurologist dated 29 July 2025, in Appendix B to Document A5, Submission of the Applicant, 31 July 2025, at page 445.

[44] In her statement, which is Appendix D to Document A5 (Submission of the Applicant, 31 July 2025), and her oral evidence at the hearing, 30 September 2025.

[45] Citing Item 1_010_0107_1_1 in the NDIS Pricing Arrangements and Price Limits document.

[46] Appendix E to Document A5 (Submission of the Applicant, 31 July 2025), at page 457 of the Hearing Bundle.

[47] Appendix F to Document A5 (Submission of the Applicant, 31 July 2025), at pages 458-459 of the Hearing Bundle.

[48] Hearing Bundle, Document A1, Sleep wake data, page 193.

[49] Hearing Bundle, Report of occupational therapist, 28 July 2025, Appendix C to Document A5 (Submission of the Applicant, 31 July 2025), pages 446-454.

[51] Citing section 34(1)(aa) of the NDIS Act.

[52] Citing section 34(1)(c) of the NDIS Act.

[53] Citing section 34(1)(d) of the NDIS Act.

[54] Being Jats Joint Pty Ltd v Fair Work Ombudsman [2025] FCA 743 (Jats Joint); Hitch v Baronja Investments Pty Ltd [2025] FedCFamC2G 636; and Health Services Union: Family Based Direct Care Worker Employee Collective Agreement 2009 [2023] FWCFB 190. In her closing submissions Ms A helpfully identified that the primary Judge's decision in Jats Joint had been appealed; it is noted that the Full Court's decision was delivered on 20 March 2026 - Fair Work Ombudsman v Jats Joint Pty Ltd [2026] FCAFC 25.

[55] Myers and National Disability Insurance Agency [2026] ARTA 37, at [6]-[7], and at [80] ff.

[56] Appendix E to Document A5, Submission of the Applicant, 31 July 2025, page 457.

[57] Hearing Bundle, Document A4, Applicant's response to the Agency's Statement of Facts, Issues and Contentions, 20 June 2025, pages 200-206, at page 204.

[58] This is a reference to the statement of Ms Mannix, Appendix D to this submission.

[59] The NDIS Pricing Arrangements and Price Limits document.

[60] Hearing Bundle, Document A5, Submission of the Applicant, 31 July 2025, at page 209.

[61] Hearing Bundle, Document A5, Appendix D, at page 456.

[62] Agency's Amended SFIC, at [4.24]-[4.28].

[63] Citing the NDIS Pricing Arrangements and Price Limits 2024-25 (Hearing Bundle, Document A5, Appendix A).

[64] Citing the Miscellaneous Transitional Rules and McGrath and National Disability Insurance Agency [2023] AATA 3719, at [88]-[92].

[65] Citing sections 34(1)(c) and (d) of the NDIS Act.

[66] See sections 24 and 25 of the NDIS Act.

[67] Miscellaneous Transitional Rules, Rule 7; see also McGrath and National Disability Insurance Agency [2023] AATA 3719, at [92].

[69] Hearing Bundle, Document A5, Appendix A: NDIS Pricing Arrangements and Price Limits 2025-26 Version 1.0, at page 355

[70] Exhibit 4, Email from Ms A of 1 October 2025, Appendix B - Orders sought.

[71] Hearing Bundle, Document A5, Submission of the Applicant, at page 209.

[73] Evidence of Ms Mannix, 30 September 2025.

[74] Hearing Bundle, Document A5, Submission of the Applicant, Appendix C, Functional capacity assessment, 28 July 2025, at page 451.

[75] Exhibit 2, email from Ms A of 24 September 2025, at page 8 of her attached statement.

[76] Agency's amended SFIC, at [4.31].

[77] Closing submissions of Ms A, 1 October 2025.

[78] See Item 23 of Schedule 1 of the Transitional Rules, providing for 'Household tasks', described as 'supports that provide assistance with essential household tasks that a participant is not able to do themselves because of their disability. This includes ... (b) house or yard maintenance.'

[79] Exhibit 3, being PHDK's current plan, describes this support as 'support to maintain your home to a good standard' (emphasis added).

[80] Hearing Bundle, Document A4, Applicant's response to the Agency's Statement of Facts, Issues and Contentions, 20 June 2025, pages 200-206, at page 204.