Decision: The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with a direction that the Applicant's Statement of Participant Supports include funding for:

1. kitchen modifications as proposed by the Scope of Work for Kitchen Modifications (AH 804)
2. removal of archways 1 and 2 in kitchen dining room areas.
3. removal of existing carpet in kitchen/dining area and replace with vinyl flooring.
4. high contrast painting of the architraves and skirting boards in the Participant's home.
5. replacement of existing downlights in kitchen area with 7 LED lights.
6. purchase and installation of a NEFF N 90 induction cooktop.
7. replacement of the Participant's existing driveway
8. construction of a concrete pathway in the Participant's backyard.

......................[SGD].................................................

NATIONAL DISABILITY INSURANCE SCHEME (NDIS) - significant vision impairment -- home modifications -- whether support is reasonable and necessary - whether requested supports are a NDIS Support capable of being included in a Statement of Participant Supports - whether there is sufficient evidence that a requested support is a NDIS Support - whether funding for support whether funding for support is consistent with relevant law and policy - decision under review set aside and remitted for reconsideration.

Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)

National Disability Insurance Scheme Rules 2016 (Cth)

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

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

Dudgeon and National Disability Agency [2024] ARTA 154

Duse and National Disability Insurance Agency [2025] ARTA 37

FSWN and National Disability Insurance Agency [2025] ARTA 114

Hyde and National Disability Insurance Agency [2025] ARTA 365

McGarrigle v National Disability Insurance Agency [2017] FCA 308 (28 March 2017)

Madelaine and National Disability Insurance Agency [2019] AATA 4025

Public Trustee of South Australia as Litigation Representative for Isherwood and National Disability Insurance Agency [2023] FCA 852

Rogers and National Disability Insurance Agency [2022] AATA 2809

Warwick v National Disability Insurance Agency [2024] FCA 616

National Disability Insurance Scheme-Operational Guidelines

National Disability Insurance Scheme Operational Guidelines - Planning

Operational Guidelines for Home Modifications (OGHM)

1. Ms. QGRY (who I will identify either as the Applicant or Ms. QGRY) is a 61-year-old woman who lives in a suburb in Melbourne. She is a participant of the National Disability Insurance Scheme ('the NDIS') after being found to be eligible for access to the scheme in 2017.
2. Ms. QGRY has the following diagnoses:
   • aniridia;
   • glaucoma;
   • cataract;
   • corneal pannus;
   • myopia;
   • nystagmus; and
   • astigmatism.
3. She was found to be eligible for access to the NDIS based on her diagnosis of aniridia.
4. Aniridia is a genetic disorder that causes a baby to be born without irises, either partially or fully. The Applicant is legally blind and only able to distinguish light, colours, shapes and shadows with her left eye and has no functional vision in her right eye. The Applicant's depth perception is also affected.
5. Notwithstanding these impairments, Ms. QGRY leads a full and active life including working on a part-time basis.
6. On June 2020, the National Disability Insurance Agency (who I will refer to as either the Respondent or the Agency) approved a range of supports for Ms. QGRY including the following:

(a) A Core Supports budget of $31,488.88. This includes $2,000.00 for level 1 and level 2 assistive technology, funding for ongoing cost of her guide dog, funding to assist her daily care needs and maintain her home environment, individual assistance to support Ms. QGRY's participation in community, social and recreational activities and $3,567.00 for transport. These supports were identified as self-managed.

(b) A Capacity Building Supports budget of $31,814.89 comprising:

(i) Improved Daily Living (CB Daily Activity) - $13,870.35 (Self-managed)

(ii) Support Coordination - $2,941.00 (Self-managed);

(iii) A Capital Supports budget of $5,000.00 (Self-managed);

35 hours per week of Disability Support Worker assistance which may be used flexibly;

15 hours for an Orientation and Mobility assessment;

1. Upon receiving her plan, Ms. QGRY sought an internal review of that decision and sought consideration by the Respondent of a range of supports. Of these requested supports, the delegate found the following met the reasonable and necessary criteria:
   • Ready Easy evolve, ID Mate Galaxy and Sunu Band Horizon;
   • 7 hours per week of assistance to access the community.
2. Her review request listed the following non-property related supports which the delegate declined to approve:
   • Low-cost assistive technology.
   • Computer software for plan management;
   • Additional annual maintenance guide dog costs;
   • 19 hours per week of assistance with daily activities;
   • 15.5 hours per week of assistance to access the community;
   • 40 hours of occupational therapy;
   • 37 hours of other therapy for guide dog visit orientation and travel;
   • 104 hours for physiotherapy;
   • 72 hours of support coordination
   • 8 hours of skill development;
   • ORCAM;
   • Upgrade of JAWS software; and
   • AIRA subscription.
3. The request for property modifications included the following:

1. Ms. QGRY had previously supplied the Respondent and the Tribunal with numerous expert reports, construction quotations and detailed plans of the proposed modifications to the kitchen.
2. The Respondent conducted its internal review and on 17 September 2020, provided its decision. The delegate that conducted the review determined that the requested additional supports and property modifications did not meet the criteria set out in s 34 of the National Disability Insurance Scheme Act 2013 (Cth). The delegate advised that in relation to the requested property modifications there was no information provided that would establish that the requested supports would be effective and beneficial.
3. On 26 October 2020, Ms. QGRY then applied to the then Administrative Appeals Tribunal (the AAT) seeking an independent review of the Respondent's decision.
4. In her application for review Ms. QGRY stated the following as the reasons she believed the Respondent's decision had been incorrectly made:

I consider that the decision is incorrect because:

I require the supports requested (specifically those identified as requests 1 to 16 in the decision-maker's letter dated 17 September 2020), and importantly, at the support levels I proposed, to pursue my stated goals and aspirations; and I consider the proposed supports reasonable and necessary having regard to the s 34 criteria.

I was not offered the opportunity to provide supporting evidence addressing the reasonable and necessary criteria as part of the s 100 internal review process. By way of context:

I was unsatisfied with the statement of supports in my NDIS plan dated 22 June 2020.

The Local Area Coordinator (LAC) advised me that my only recourse was to seek an internal review under s 100. Under her guidance and direction, she instigated this review on my behalf. But, in doing so, she failed to exercise due care when advising me of, most importantly, the process that follows. The LAC's conduct denied me of the opportunity to use the 3-month review period to gather pertinent materials (eg expert reports addressing the 'reasonable and necessary' criteria set out in s 34) that would support and influence the outcome of the s 100 internal review and left me with an AAT appeal as my only recourse. Even though the LAC is not a delegate of the NDIS CEO, the LAC acted as an intermediary and held herself out as an agent of the NDIA (eg email address).

The decision-maker had a duty to inquire and was under an obligation to request further evidence from me to satisfy herself that my support requests did not meet the reasonable and necessary criteria. She failed to, which meant I was denied the

opportunity to seek further evidence to substantiate my support requests. The

failure to provide the requested supports results in my health, safety and wellbeing

1. After Ms. QGRY's application was received the matter has proceeded through several procedural steps in the Tribunal including conferencing designed to allow the parties by agreement to potentially reduce the number of matters in dispute.
2. As a result of that process in July 2023 the matter was remitted to the Respondent under s 42D of the Administrative Appeals Tribunal Act 1975 (the AAT Act) on the basis that the following additional supports be included in Ms. QGRY 's plan:
   • The current $500 of low-cost assistive technology supports for personal care and safety in the Core Supports category in the Current Plan be replaced with $3,000 per year.
   • Quote required assistive technology in the Core Supports category to enable the purchase of an iRobot Roomba S9+ Vacuum.
   • The current 7 hours per week of Social, Community and Civic Participation in the Core Supports category in the Current Plan at the Saturday Rate be replaced with 35 hours per week at the Saturday Rate.
   • The current Level 2 Transport funding in the Core Supports category to be replaced with Level 3 Transport.
   • A total of 15 hours for an orientation and mobility assessment in the Capacity Building Supports category.
   • 37 hours per year of other therapy supports in the Capacity Building Supports category to enable guide dog visit/orientation and travel.
   • A total of 12 hours of occupational therapy supports in the Capacity Building Supports category to enable any further home modifications assessments and capacity building.
   • 12 hours per year of physiotherapy supports in the Capacity Building Supports category.
   • The current 30 hours of support coordination in the Capacity Building Supports category in the Current Plan be replaced with 72 hours per year of support coordination.
   • $2,855.00 of assistive technology funding in the Capital Supports category to enable the purchase of JAWS upgrade on the Applicant's personal computer.
   • The current $3,360.00 of assistive technology funding in the Capital Supports category for an AIRA Subscription to be replaced with $3,528.00 per year.
   • $6,549.00 of assistive technology funding in the Capital Supports category to enable the purchase of an OrCam MyEye Pro.
   • Quote required assistive technology funding in the Capital Supports category to enable the purchase and installation of a banister rail for the Applicant's front steps (this will be a stated support).
   • $2,514.96 of assistive technology funding in the Capital Supports category for the purchase of a spa controller as per Spafix Vic quote dated 28 July 2020 (updated quote required).
   • $3,850.00 of assistive technology funding in the Capital Supports category for supply and installation of electrical lighting in the Applicant's home as per PCH Electrics Pty Ltd quote dated 8 February 2021 (updated quote required and to include additional task lighting within the Applicant's home).
   • Quote required assistive technology funding in the Capital Supports category for window coverings for the windows in the Applicant's kitchen to reduce glare.
3. As a result of this, what I will term the property modification related matters remained to be determined by the Tribunal.

1. In support of her application, Ms. QGRY has provided the Tribunal with multiple reports and assessments, and I shall refer to those in this decision where relevant.
2. Prior to the commencement of the hearing of the matter, multiple individual documents were provided on both party's behalf. These have been listed in the table below taken from the index of the parties' joint tender bundle with the starting page of each document listed in the right-hand column:

General Assistive Technology Assessment (Various), John Clower (Access Technology Specialist)

Extract of Interactions, Request Review of Decision, Applicant

Letter, Dr Kazunori Nakajima (General Practitioner)

General Assistive Technology Assessment (ORCAM), Allison Hocking (Occupational Therapist)

Extract of Interactions, Email Confirming Requested Supports, Applicant

Letter of Support, Michelle Seckold (Support Worker)

Letter of Support, Lorraine Rodrigues (Support Coordinator)

Dog Guide Information Sheet, Blind Citizens Australia

Pabst Constructions Quote, Kitchen/Lounge Modifications

Community OT Images and Scope for Kitchen Modifications

General Assistive Technology Assessment, Luke McKeown, Occupational Therapist

Letter of Support, , Applicant's sister and qualified in aged, disability, home and community care

Letter of Support, Luke McKeown (occupational therapist)

General Assistive Technology Assessment, Luke McKeown, Occupational Therapist

Letter of Support, Michelle Seckold, Support Worker

Applicant's response to Respondent's Statement of Issues dated 9 September 2022

Further material annexed to Whitehorse Council Ms. Houston's Home modification (Driveway vs Footpath) Recommendations (Duplicate of S5)

Documents filed with the Applicant's Statement of Facts, Issues and Contentions.

AT Complex Home Modification Assessment report by Luke McKeown

Kutinara et al 2013 Desing and Evaluation of a Kitchen for Persons with Visual Impairments

Greasley-Adams 2014 Good Practise in the Design of _ and sight loss

Home Modifications Guidance for Builders and Designers

2020_6606 QGRY and NDIS - Respondent's Statement of Facts, Issues and Contentions

Antonelli 2018 Effects of Spa Therapy on Stress Biomarker Review

Blasche 2010 Association of Spa Therapy with Improvement of Occupational Burnout_Study

Swedish Study of Effective Lighting amongst people with poor vision

Community OT Area Photos for Concreting (Duplicate)

Dr Kazunori Nakajima statement August 2020 (Duplicate)

Quote for Kitchen by Peter Gill Kitchen - Blackburn Kitchen (Duplicate)

Quote Ascot Group-COT-21-0870-[Applicant's Home Address] (Duplicate)

1. For its part the Respondent engaged the Occupational Therapist, Ms Phi Van Houston[1] as an Independent Medical Expert (IME) who provided a report dated 5 May 2023 and a supplementary report dated 3 June 2024[2].
2. The full list of the documents initially relied upon by the Respondent is as follows:

Report (amended), Phi-Van Houston (occupational therapist)

Supplementary Occupational Therapy Report, Phi-Van Houston

NEEF Induction Cooktop specification information, publicly available

Bosch Induction Cooktop specification information, publicly available

The Respondent, during the hearing, advised the Tribunal that it would no longer rely on the contents of Ms. Houston's report. For that reason, I do not propose to outline the contents of that report other than as referred to in the Respondent's statements of position to the Tribunal.

1. Ms. QGRY outlined her position in her Statement of Facts, Issues and Contentions ('SFIC') dated 21 April 2024.
2. Due to the length and level of detail of her SFIC I do not propose to record in detail the minutiae of Ms. QGRY's document rather identify its key elements particularly as they relate to the disputed supports.
3. Ms. QGRY provided a detailed and helpful summary of her various impairments and how they affect her lived experience and their relevance to the various requested supports.
4. She then provided her submissions as to why and how the various requested supports met the section 34(1) criteria.

1. Replacement of the existing kitchen cabinetry was required to:
   • Achieve front-on access to the proposed induction cooktop.
   • Provide safety for Ms. QGRY in the kitchen.
   • Provide accessible storage.
   • Remove hazardous open doors and drawers.
   • Fully utilize four cooking zones.
2. In terms of how the proposed modifications met the s 34(1) criteria, Ms. QGRY submitted that:
   • There is clear medical and other evidence provided which establishes that they are directly related to her various impairments.[3]
   • The modifications would increase her social participation and community engagement.[4]
   • The modifications would reduce stress and improve her health and physical, emotional and mental well-being.[5]
   • The modifications will assist her to pursue the goals in her plan including increased independence, having a home she can access without barriers and reduce risk.[6]
   • The modifications would assist her to undertake activities and facilitate social and economic participation.[7]
   • The modification represents value for money as it would increase her independence, reduce the need for assistance from support workers, and are in accordance with the NDIS Specialist Disability Accommodation Design Standard Edition 1:1 2019.[8]

• The costs of the kitchen modifications are reasonable relative to the benefits achieved. In this regard Ms. QGRY pointed to evidence establishing the long- term benefits to participants of accessible housing, the significant reduction in other funded supports, relatedly the benefits of her increased independence.[9]
• The cost of modifications is reasonable relative to the cost of alternatives. This would include the potential cost of Specialist Disability Accommodation (SDA) if Ms. QGRY was found eligible for this and the risk of further deterioration of her impairments in the absence of the modifications being in place.[10]
• There are not comparable supports that would achieve the same outcomes at a substantially lower cost. Ms. QGRY referred to a number of alternative lower cost options that had been explored but found to have significant drawbacks and limitations. She further stated that the partial modifications suggested by the Respondent would leave her in a significantly compromised position and would place her at risk.[11]
• There is evidence which establishes the modifications would substantially improve Ms. QGRY's life stage outcomes and be of long-term benefit to her. In this regard, the suggested modifications can be expected to remain functional for many years and will improve her quality of life, level of independence, her overall well-being and reduce the risk of harm such as falls.[12]
• The provision of the kitchen modifications will significantly reduce the cost of other funded supports in the long-term. Ms. QGRY will be more independent if the modifications are in place and will be less reliant for assistance from her support workers. She provided several citations in support of this proposition. The modifications benefit will last a long time and the need to do other modifications in the future as her sight further deteriorates, will be eliminated.[13]

1. In terms of how the proposed modifications met the s 34(1) criteria, Ms. QGRY submitted that:
   • There is clear medical and other evidence provided which establishes that they are directly related to her various impairments. In this regard Ms. QGRY stated that the current location of the existing cooktop is not suitable due to her vision impairment. It places her at risk due to the lack of natural light in that location.[14]
     • A functional assessment by an Occupational Therapist indicated that the best location for a replacement cooktop was where the archway currently stands as it has an abundance of natural light.[15]
     • Mr. McKeown has recommended the NEFF N90 (N90) cooktop as it has a range of features suitable for a vision impaired person including tactile controls, audible cues when temperature settings are altered and automatic shut-off of all the cooking zones in the event of a boil over.[16]
     • The cooktop will assist Ms. QGRY in pursuing the goals in her plan as previously recorded in paragraph 27 above.[17]
     • The cost of the cooktop is reasonable relative to the benefits achieved as the Respondent has conceded that the replacement and relocation of the cooktop is necessary.[18]
     • The cost of the cooktop is reasonable relative to the cost of alternatives. While the Respondent has indicated that it would be prepared to fund a lower cost alternative, the only cooktop that meets the requirement of someone with a visual impairment is the N90 and there are no other alternatives with those features. Further there are no comparable stove tops that achieve the same outcomes at a substantially lower cost.[19]
     • The proposed cooktop will substantially improve Ms. QGRY 's life stage outcomes. In this regard she pointed to the benefits she experiences in her accessible kitchen in her other home in Queensland.[20]
     • Funding of the proposed cooktop will be likely to reduce the cost of funding for her in the long term as the N90 should last a long time and will continue to meet her needs as her eyesight deteriorates further.[21]
     • The proposed cooktop will increase her independence and reduce her need for other supports in the future including the assistance of support workers.[22]
     • The proposed cooktop will be effective and beneficial for a range of reasons including it being accessible, functional and safe.[23]
     • The proposed cooktop cannot be replicated by family carers and informal supports.[24]
     • It is not a day-to-day living cost as the requested support is directly related to Ms. QGRY's vision impairment.[25]

Concreting driveway and installing a rear pathway

1. The driveway is presently in poor condition and represents a risk to Ms. QGRY due to the risk of tripping or falling on its uneven surface.
2. The proposal is for the re-concreting of the driveway being 10.08 metres in length and a width of 3.1 metres at the entry point and 2.25 metres at the roadside. It is further proposed that a concrete pathway be installed being 10.087 metres in length and 1.2 metres wide to enable access to the clothesline and the storage shed.
3. In terms of how these proposed modifications met the s 34(1) criteria, Ms. QGRY submitted that:
   • It is related to her disability due to her inability to safely traverse the driveway due to the combination of her vision and physical impairments. As a result, she is at high risk of tripping, falling and becoming disoriented.[26]
   • It will assist her in pursuing the goals set out in her plan. This includes facilitating her independence, removing barriers to achieving that goal, increased social participation and community engagement, reduction in stress and improvement in health and well-being, having a safe and accessible home and assist in her social and economic participation.[27]
   • It represents value for money arising out of the significant benefits it will provide her and the reduction of risk of injury resulting in more cost to the public purse.[28]
   • The costs are reasonable relative to the benefits achieved to Ms. QGRY's independence, social participation, health and safety.[29]
   • The costs are reasonable relative to the cost of alternatives as the alternatives are not as durable, practical or offer the same level of accessibility. Alternatives considered included patching or conducting minor repairs to the driveway or installing a grab rail on the left side of the driveway.[30]
   • There are not comparable supports able to achieve the same outcome at substantially lower cost. The cheaper option that was considered was the installation of a pathway next to the left-hand side of the driveway. This was found by the Engineer at DGM Consulting to be impractical as it would not be cost effective, long lasting or comply with building codes. [31]
   • The support will substantially improve life stage outcomes for Ms. QGRY particularly in the areas of safety and removing the risks of falls.[32]
   • It is likely to reduce the cost of funding supports in the future.[33]
   • It will increase her independence and reliance on other supports.
   • It will be effective and beneficial.[34]
   • It is not a day-to-day living cost, as the requested support is solely and directly related to her disability.[35]
   • Overall, the concreting of the driveway and the installation of a concrete path in the backyard of the house will increase Ms. QGRY's independence maintain her employment and economic engagement, significantly decrease risk and reduce reliance on other funded supports.[36]

1. I note that the Respondent in its post-hearing submissions conceded that the request for increased lighting in Ms. QGRY's home met the section 34(1) criteria, so in my view it is not necessary for me to record Ms. QGRY's submissions here.

1. Similarly, the Respondent conceded in its final submissions that the need for high contrast painting in the kitchen was reasonable and necessary but did not concede this in relation to the contrast painting for the architraves and skirting boards. I will return to this topic under my assessment of the evidence.

1. Ms. QGRY stated that the need for a home spa and its maintenance was related to her disability due to the stress and fatigue, which in terms of her primary vision impairment conditions, can lead to further deterioration and the loss of her residual eyesight.[37]
2. In addition, Ms. QGRY has several physical conditions such as bursitis and plantar fasciitis which cause pain, inflammation and loss of mobility and the use of the spa is an integral part of her management of these symptoms.[38]
3. In terms of how the proposed spa maintenance met the s 34(1) criteria, Ms. QGRY submitted that.
   • It will assist her in pursuing her goals if independence, social participation economic engagement, reduce stress and improve overall wellbeing by having a safe and accessible home.[39]
   • Having a functioning spa will assist her to undertake activities and economic activities as it will alleviate her physical impairments and assist in her continued employment.
   • It represents value for money as having a support worker perform the task of monitoring the chemical balance would cost at least $60 per hour twice a month whereas the anticipated cost of having a maintenance company do this would be $110.
   • The cost is reasonable compared to the benefits achieved due to the direct link to Ms. QGRY's goals and the NDIS rules and the significant improvement in her ability to live independently.
   • In terms of whether the costs are reasonable relative to other alternatives, Ms. QGRY pointed to the Respondent not approving requested physiotherapy sessions, which could have addressed the same concerns, and the ability to access the spa on a regular basis will provide affective relief of muscle pain and emotional stress.
   • As previously noted, the engagement of a contractor to manage the chemicals in her pool will be cheaper that having a support worker perform this task and therefore will likely reduce the cost of other funded supports over time.
   • The spa maintenance will increase her independence and reduce the need for other supports in the long-term as she will not need to use a support worker to do this and will enable her to travel to Queensland to care for her mother knowing that the spa will be maintained in her absence.
   • In terms of the support being a day-to-day expense, Ms. QGRY noted that she is meeting the general cost of having the spa. However, the maintenance is reasonable to manage her physical impairments which is necessary to avoid them negatively impacting her vision impairment.

1. From the time of Ms. QGRY filing her appeal, both she and the Respondent lodged with the Tribunal several documents outlining their respective positions. The Respondent's most recent of these was provided on 17 June 2024 as well as an addendum lodged on 12 August 2024.
2. In its SFIC the Respondent outlined the supports Ms. QGRY had requested which remained in issue. These included the cost of:

(i) Monthly spa maintenance at a cost of $110.00. > > (ii) Repairs to the front driveway. > > (iii) A footpath to access the clothesline at the rear of the house. > > (iv) High contrast painting of wall and architraves throughout the home. > > (v) Additional task lighting (as per Mr. McKeown's letter of 17 January 2024). > > (vi) New bench tops raised to 1020 mm and 720 mm deep. > > (vii) New kitchen cabinets with pull out drawers and doors that open to 180 degrees. > > (viii) Removal of internal archways so as to make the kitchen and dining areas a single room. > > (ix) New vinyl flooring. > > (x) High contrast painting in the kitchen. > > (xi) Removal of existing gas stove top and installation of a Neff N90 Flex Induction Cook Top.

3. Before addressing the requested supports in specific terms, the Respondent made several general observations.
4. The first was that it is open for the Tribunal, in accordance with McGarrigle v National Disability Insurance Agency [2017] FCA 308; 252 FCR 121, to find that some of the requested kitchen modifications were reasonable and necessary while finding that others did not meet those criteria.
5. That in general terms and applying Warwick v National Disability Insurance Agency [2024] FCA 616 home maintenance costs should properly considered be viewed as day-to-day living costs even if they are incurred infrequently.
6. Referring to r 5.1(d), that expenses must be attributable to a participant's disability support needs and if they are not, they are therefore excluded.
7. The Respondent also referred to the question as to whether supports may be provided for Ms. QGRY's other physical impairments aside from her vision impairment. The Respondent then addressed the specific requested items.

1. The Respondent stated that Ms. QGRY uses the spa to help relieve chronic stress and manage chronic pain in her shoulder and ankles. She requires someone to provide maintenance for the spa as her support workers will not do so due to concerns about handling chemicals.
2. The Respondent stated that the requested support did not represent value for money (s 34(1)(c)) as there are lower cost alternatives. Further, there was limited value as to the benefits of using the spa and it was not related to her disability.
3. The Respondent conceded that a digital water quality tester as recommended by Ms Van Houston would meet the s 34 criteria.

1. Ms. QGRY has requested that her front driveway be paved with concreting to provide an even surface so she could safely access her home.
2. The Respondent stated that it relied upon the evidence of Ms. Houston which indicated that an uneven surface would place people without a disability at risk and her opinion should be given greater weight than letters provided by Ms. QGRY's neighbours which indicated that the driveway is safe for people without vision or mobility impairments.
3. Based on this evidence, the Respondent submitted, the proposed concreting was not related to Ms. QGRY's disability and as it related to her obligation to maintain her property, it is a day-to-day expense.
4. The Respondent further submitted that the proposed driveway did not represent value for money as Ms. Houston had suggested a lower cost alternative, namely a confined footpath.

1. Ms. QGRY is seeking a concrete path in her backyard. This area is presently grassed with a partial pathway made of bricks. This would enable her to safely access her clothesline and rear storage shed. The current situation makes her at risk of falls and losing her way in the backyard.
2. The Respondent noted that there was no current evidence of Ms. QGRY having had falls in her backyard.
3. The Respondent cited several pieces of evidence which indicated that Ms. QGRY can independently mobilise around her home.
4. Further, the Respondent stated that the proposed path did not represent value for money as the benefits were limited, as Ms. QGRY could hang her laundry on a rack on her rear deck and could have her support workers assist her if she needed to get items from her storage shed. In addition, a lower cost alternative was extending the existing brick pathway.

1. Ms. QGRY has requested contrast painting throughout the house to assist her to better and more safely navigate in her home, reduce eye strain and mental fatigue, and have her feel more comfortable having other people in her home.
2. The Respondent submitted that the requested support did not represent value for money as she can independently mobilise in her home, there was limited evidence as to the benefits and no medical evidence of eye strain or why she would feel more comfortable hosting others with the contrast painting in place.
3. The Respondent further submitted that the request amounted to a day-to-day expense as it related to property maintenance.

1. The Respondent noted that it had agreed to include in Ms. QGRY's current plan, funding for task lighting placed within the existing cabinetry in several locations in her home.
2. In relation to the further task lighting installations, the Respondent did not accept that it represented value for money or would likely be beneficial and effective.
3. In assessing the various locations where the additional task lighting had been requested, the Respondent either raised the objections referred to in the previous paragraph or indicated that there was insufficient evidence to establish the need for such lighting in that location.

1. The Respondent stated that Ms. QGRY has asserted that the proposed kitchen modifications will enable her to cook and prepare food more safely, independently, and efficiently for herself and others.
2. For its part, the Respondent relied upon the most recent report of Ms. Houston and stated that it considered Ms. Houston's proposals would achieve similar outcomes to what Ms. QGRY is seeking.
3. Ms Houston's recommendations were as follows:

(a) Installation of a larger pantry in the same location as the existing pantry > > (b) Replacing the wall oven with a free-standing 60cm induction stove top between the refrigerator and the old gas stove top and adding shelving or mounted racks to this area. This has the advantage of ensuring kitchen appliances, the refrigerator, cupboards, and crockery are closely co-located. > > (c) Remove the kitchen bench and replace with a mobile island kitchen bench. That kitchen bench can be raised with a piece of timber or large castors. The cost of the mobile bench - prior to adjustments is around $400 - $500. > > (d) Provide a soft close, pull-out 3 tier basket to the right of the stove to house essential spices, oil, etc. for cooking. The example would cost around $170. > > (e) Shelving, or in the alternative, racks above the free-standing stove. > > (f) Install custom-built cupboards for storage either side of the archway..

4. The Respondent asserted that Ms Houston's proposals would be more cost effective as they would not require the demolition of the existing kitchen, removal of the internal archways and replacing the kitchen cabinets.

1. Ms. QGRY has requested funding for a NEFF N90 Flex Induction Cooktop (N90) as it has tactile controls, provides audible cues when temperature settings change, has smart cooking zones, and safety shut off in the event of a boil over.
2. The Respondent did not consider the N90 represented value for money as there are two lower cost alternatives referred to by Ms. Houston in her report.
3. The other objections to the N90 raised by the Respondent are:
   • Mr McKeown had not identified what safety features Ms. QGRY requires or whether alternative cooktops may have sufficient safety features.
   • Ms. QGRY 's wish for a larger cooktop to enable her to host others is a preference not related to her disability.
   • Ms. QGRY 's preferred location for the cooktop would not be effective and beneficial as per s 34(1)(d) of the Act.
   • Further evidence from Ms. QGRY's builder is required to establish the need for Ms. QGRY's preferred location and the need for ancillary works to enable this to be done.
   • Mr McKeown's report does not detail the alternative locations for the cooktop and appear to have not been considered. No alternative cooktops appear to have been considered. The evidence does not establish that there is no alternative to the N90 cooktop, or that the proposed location is essential.

1. The Respondent stated that it did not accept that the removal of the first or second archways met the criteria in s 34(1)(c) and (d) in that Ms. QGRY can install a new cooktop without removing the two archways.
2. The removal of the two archways is not related to Ms. QGRY's disability but rather is an expression of her desire to have a combined kitchen and dining room. As such this is prohibited by rule 5.1(b). It further submitted that such an expense was a day-to-day expense prohibited by rule 5.1(d), although it reserved the right to make further submissions taking account of the Warwick decision.

1. The Respondent outlined the asserted disability-related benefits of the proposed benches and cabinets including reducing the need for Ms. QGRY to bend over while cooking, provide more depth and reduce clutter, and preventing items from falling off the bench.
2. The asserted benefits of the new cupboards and pull-out drawers are they prevent Ms. QGRY colliding with open cupboards, providing greater natural light in the cupboard interiors and easier access and better enable her to identify items in the cupboards and drawers.
3. The Respondent states that the proposed replacement cupboards and drawers did not meet the beneficial and effective criteria in s 34(1)(c) as any potential benefits would be limited and there was not medical or other evidence establishing risk of injury or Ms. QGRY's physical inability to bend or kneel.
4. Additionally, the Respondent asserted that there are lower cost alternatives including raising the existing benches, using silicone mats to prevent roll overs, the provision of a mobile storage trolley, slimline cupboards, installing three tier baskets in the dishwasher or forgoing cupboard doors altogether. Ms Houston in her report had proposed a number of these alternatives.
5. The Respondent submitted that replacement of the cabinetry amounts to home maintenance and not related to Ms. QGRY's disability needs.

1. Ms. QGRY has requested the removal of the carpet in the existing dining room as it constitutes a trip hazard and is unable to see when foods falls onto that surface.
2. The Respondent asserts that Ms. QGRY can safely navigate her way around her home including areas with carpet.
3. Cheaper alternatives include utilising the three hours per week in her plan allocated to house cleaning, using the iRobot vacuum cleaner, or having the carpets dry cleaned.
4. The Respondent further asserts that the requested support is not related to Ms. QGRY's disability and constitutes a day-to-day living expense.

1. The Respondent states that while it accepts that such painting will be effective and beneficial and value for money, it is a day-to-day expense and therefore prohibited by rule 5.1(d).

1. Over the course of the following four years the matter was the subject of a number of conferences and other administrative steps including the parties lodging several statements outlining the facts of the matter and their respective submissions on how the Tribunal should determine the requested supports. For the purposes of this decision, I intend to restrict my recording of these to those submitted immediately before the hearing of the matter.
2. The matter had previously been constituted to Deputy President Melick and was later constituted to me in the second half of 2024.

1. After the first day of the hearing, the Respondent advised that it had changed its position with respect to several matters it had previously disputed. These were as follows:

(i) The Respondent accepts that the concreting of the front driveway is a disability related support, and subject to provision of an updated and reasonable quote, will meet s 34 of the Act. > > (ii) The Respondent accepts in principle that high contrast paint in the kitchen is a disability-related support and subject to provision of an updated and reasonable quote, will meet s 34 of the Act. > > (iii) The Respondent given Warwick does not contend that concreting in the back path, removal of archways in the kitchen, high contrast painting throughout the house, or replacing the kitchen benches are day-to-day living costs. Therefore, none of them are prohibited from being funded pursuant to r 5.1(d) of the Rules. The Respondent reserves its position in relation to the kitchen cupboards. > > (iv) The Respondent accepts the 8-in-1 Spa Tester proposed by Ms. QGRY is a reasonable alternative to spa maintenance. The Respondent does not accept spa maintenance meets section 34.

2. As a result of those concessions, the Respondent advised that the following requested supports continued to be an issue to be determined by the Tribunal.

(i) Additional lighting in the back deck; corridor to the front door; attic; laundry; home office; and recreation room.

(ii) The replacement of the kitchen cabinetry, removal of the archway to install an induction cook top, and removal of the second archway.

(iii) Spa maintenance.

(iv) The concrete pathway in the backyard.

(v) High contrast painting in parts of the home other than the Kitchen.

(vi) The precise induction cooktop that may be reasonable and necessary. .

1. Subject to the Respondent advising of its final position in its post-hearing submissions, these issues in dispute will be those considered in this decision.

1. The parties advised the Tribunal by way of a witness schedule that the following witnesses would give evidence on behalf of Ms. QGRY.
   • Ms. QGRY.
   • Mr Luke McKeown (Occupational Therapist).
   • Mr Jason Stankowski (Orientation and Mobility Specialist)
2. The matter was then heard between 4 and 6 September, 26 September and concluding on 4 October 2024. Given the sheer volume of evidence given over five separate days, I do not propose to record what each witness said in detail but will refer to that evidence when required in my consideration of the issues in the final section of this decision.

1. As noted earlier, the Respondent's counsel advised the Tribunal on the first day of the hearing, that it would not be relying on the reports prepared by Ms. Thi Van Houston and consequently would not be calling her to give evidence.
2. It is important to note that while the hearing of evidence ended on 4 October 2024, due to the Respondent's decision to make various concessions during the conduct of that hearing and then later withdrawing those concessions in its post-hearing submissions, this caused significant procedural fairness issues for Ms. QGRY. The Tribunal listed this issue to be discussed at a further direction hearing on 21 November 2024 and based on those discussions, the Tribunal reopened the hearing to address these issues on that date.

1. The NDIS has been in operation for 12 years. It is landmark social legislation dedicated to the idea that people with disability have the right to realise their potential for physical, social, emotional and intellectual development.[40] This is one of a series of general principles guiding actions set out in section 4 of the Act. Other important principles in section 4 of particular relevance to the present case include:

(2) People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability... > > (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... > > (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.

2. The NDIS is administered by the NDIA established under the Act. The Act sets out the matters that must be included in a participant's plan. Subsection 33(2) provides:

A participant's plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies: > > (a) the general supports (if any) that will be provided to, or in relation to, the participant; and > > (b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and > > (c) the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and > > (d) the management of the funding for supports under the plan (see also Division 3); and > > (e) the management of other aspects of the plan.

In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:

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

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

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

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

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

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

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

Reasonable and necessary supports > > (1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support: > > (aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25); > > (a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations; > > (b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation; > > (c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support; > > (d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice; > > (e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide; > > (f) the support is an NDIS support for the participant. > > Note: For the purposes of paragraph (aa): > > (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. > > (2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).

2. It is important to note that for a support to be approved it must meet all of the listed criteria. If a requested support fails to satisfy any one of the criteria, it cannot be approved.
3. The term "support" is not given a meaning in the NDIS Act. A "support" is defined in section 9 of the NDIS Act as including "general supports", being those defined in subsection 13(2) as the kind of supports provided by the Agency itself. However, the term "support" and the phrase "reasonable and necessary" are not further defined in the NDIS Act. In McGarrigle v National Disability Insurance Agency [2017] FCA 308 at 91 ('McGarrigle'), Mortimer J observed, with respect to those words:

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".

1. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 ("the Rules") made pursuant to subsection 35(1) of the NDIS Act provides further guidance with respect to the assessment of reasonable and necessary supports that will be funded. Pursuant to section 209 of the NDIS Act, the Rules are a legislative instrument and are therefore binding to the Tribunal. In this case the relevant Rules include:

• 3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:

(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;

(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;

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

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

1. the comparative cost of purchasing or leasing the equipment or modifications; and
2. 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).

1. Also, relevant here are the NDIS Operational Guidelines.
2. The NDIS Act and its Rules are supplemented by operational guidelines. The operational guidelines represent government policy and, to the extent that they are consistent with the relevant legislation, should be applied by the tribunal unless there is a sound reason not to do so.[41]
3. The National Disability Insurance Scheme Operational Guidelines - Planning provides:

This Operational Guideline provides an overview of the National Disability Insurance Scheme (NDIS), including the legal and policy framework it operates within and the variety of different ways it provides support and assistance to people with disability. > > In addition, this Operational Guideline outlines the objects and general principles of the National Disability Insurance Scheme Act 2013 and provides a summary of the information which is available in the remainder of the NDIS' Operational Guidelines.[42]

4. In addition to the general guidelines for supports, additional relevant guidelines are those published by the Respondent under the heading 'Home Modifications'. The following is a summary of the key aspect of the guidelines relevant to the funding of such a support:
   1. It must relate to the participant's disability, which contemplates how the home modification will help them to do things they find difficult due to their disability, or whether the home modification will result in the participant needing less help.
   2. It needs to help the participant pursue their goals (which considers how their disability prevents them from doing so) and participate more in social or work life, such as by enabling them to do things more independently.
   3. It should do what the participant needs it to do or make things better for them by helping them to do more things themselves, which will demonstrate that it is effective and beneficial for the participant.
   4. It must represent value for money, compared not only with the benefits the participant will derive from the home modification, but also with other supports that would achieve the same outcome. Considerations include:
      1. the age and condition of the home, if there are structural problems that wouldn't support the modification, or if the property needs a lot of work to make it accessible;
      2. how the home modification compares to the cost of moving to a more accessible home;
      3. if the home modification will help reduce the risk of fatigue or injury to the participant or to a carer.

Modifications such as extensions that make a home bigger will not generally be funded.

1. Under 3.2 the Overview Page sets out what the NDIS Operational Guidelines cover. There are ten headings, across a range of topics, from Access to the NDIS, to Review of Decisions. One of those topics is headed 'Including Specific Types of Supports in Plans'. This leads to a further page with 14 categories, one of which relates to Home Modifications. The Home Modifications Policy is set out at this point.
2. I set out part 5 of the Including Specific Types of Supports in Plans Operational Guideline in full:

5. Home modifications > > Home modifications are changes to the structure, layout or fittings of the participant's home that are required to enable the participant to safely access and move around frequently used areas in their home as a result of their disability. > > It is expected that a home modification would only be considered where the home to be modified is the participant's primary residence and the participant intends to remain living at the residence. If the property is a rental property, then the written agreement of the owner of the property will be required before any modifications take place. > > There are a number of laws and regulatory frameworks, for example Building Codes and Australian Standards which regulate home modifications. The NDIA is unable to fund home modifications which, if provided, would be contrary to a law of the Commonwealth, state or territory (see which supports will not be funded or provided under the NDIS. > > Therefore, the NDIA must be satisfied that there are no laws, regulations or other planning restrictions which would prevent the home modifications being undertaken. > > In addition, the NDIA must also be satisfied, amongst other matters, that the home modification being considered 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 (section 34(1)(c)). > > When determining whether home modifications represent value for money, the NDIA will specifically consider:

• whether the proposed home modification represents value for money when compared to the cost of other lower cost alternatives, for example less costly home modifications which reasonably achieve the same intended benefits or outcomes, or assistive technology;
• whether the proposed home modification is cost effective when compared to the cost of other supports such as assistance with the cost of moving to accessible premises; and
• the expected length of tenure for participants and whether this is commensurate to the cost of the home modifications.

The NDIA must also be satisfied that the provision of the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice (section 34(1)(d)). > > Therefore, before including home modifications in a participant's plan, the NDIA will also consider whether the home is suitable to be modified, including having consideration to:

• any structural constraints such as size, surrounding terrain, or the condition of the building; and
• whether the homeowner, and where applicable, any body-corporate, agrees and gives their permission for modifications to be made.

When complex and extensive home modifications are being considered, the NDIA may also fund oversight by a project manager or independent building certifier to ensure compliance of the modification and a qualified and experienced Occupational Therapist to certify the effectiveness of the modification to meet the participant's goals and likely future needs. > > Generally, the NDIA will fund reasonable and necessary home modifications:

• to the participant's primary residence where, due to the impact of the participant's disability, the participant or their carers are unable to reasonably access and use frequently used rooms and spaces using standard fixtures and fittings;
• when the participant's primary residence, in its current condition, has a significant and adverse impact on the sustainability of current living and care arrangements; and
• where a suitably qualified Occupational Therapist has performed an assessment and recommended home modifications considering all possible alternatives, including the use of equipment.

Generally, the NDIA will also fund reasonable and necessary supports that are related or incidental to home modifications which may include:

• assistance with the cost of moving to accessible premises as an alternative to home modifications where this is cost effective to provide access. Generally, it would be expected that any new premises selected provide appropriate access and that any further modifications would be very basic and low cost. Potential costs that may be covered include:
  1. costs associated with selling the participant's current property, for example advertising, agents fees and legal costs;
  2. costs associated with the purchase of the alternate property, for example stamp duty and legal costs;
  3. removalist costs; and
  4. minor modifications to install special equipment if necessary.
• additional costs incurred if the NDIA recommends or requires the use of qualified builders, trades people, project managers, building certifiers, building assessors or occupational therapists;
• the costs of normal repairs and maintenance to specialised fittings and assistive technology that have been installed as part of a home modification; and
• costs related to council or other building approvals which are payable as a result of the required home modifications.

• fixtures, fittings or materials which are above standard grade.
• modifications for a property purchased after a participant was granted access to the NDIS, unless the NDIA was involved in the decision to purchase the property, or the purchase of a more accessible property was not possible;
• the installation of swimming pools (including hydrotherapy) and spas;
• repairs or remediation of damage to the home that is pre-existing or discovered during the modification process.
• any additional insurance premiums which may be payable to insure the property once the required home modifications are completed.
• ongoing repairs and maintenance to non-specialised structures, fixtures or fittings of the home even when these form part of the modification work. For example, repainting a modified bathroom and maintaining plumbing;
• remediation of work that does not comply with the specifications of work or did not comply with the Building Code or relevant Australian Standards (this is the responsibility of the builder);
• for modifications to be removed when a person no longer requires them, except when there has been prior agreement in the case of a rental property;
• home modifications to group homes, residential facilities and other specialist accommodation, or other public buildings, including boarding schools; and
• capital building additions such as additions of rooms, stories or lifts or inclinators to allow access to multiple levels of a home or steep blocks of land. However, when considering whether the funding of items of this kind is reasonable and necessary the NDIA will also consider:

1. whether other parts of the house can be reasonably organised as an alternative; 2. whether alternate accommodation which is more accessible or more easily modified is available and the cost; 3. whether there are compelling factors related to the participant, their family, community or employment which makes moving premises unrealistic; and 4. the long-term costs and benefits of alternative funded supports against the costs and benefits of the modifications to the home. 5. See also is the support most appropriately funded or provided through the NDIS. In particular, housing and community infrastructure.

It is generally expected that home modifications will be suitable for the participant's anticipated long term needs. Therefore, it is unlikely that further modifications will be funded for the same premises except where there are unforeseen and significant changes to the participant's needs. > > Where the NDIA has funded complex or extensive modifications and the participant, or their family subsequently sells the property the NDIA expects:

• future premises selected will be as accessible as possible;
• money from the sale of the first property, commensurate with the value of the modifications funded by the NDIA will be directed towards modifying the participant's new premises; and
• if there is more than one residence that a participant needs to access, for example, because of shared parenting arrangements or holiday homes, modifications to the second property will be restricted to access and basic hygiene requirements.[43]

1. The Operational Guidelines for Home Modifications ('OGHM') is a policy statement developed by the NDIA to assist applicants and decision-makers in relation to specific situations. The specific paragraphs on which the Respondent relies (underlined above) are to be found at the end of a lengthy statement, which is itself buried on the relevant site, three levels deep.

1. Before moving on to the evidence and consideration of the case, it is important to refer to recent amendments to the NDIA Act and related Rules. These recent amendments are important as they in large part form the basis of the Respondent's post-hearing submissions as they relate to several of Ms. QGRY's requested supports.
2. As of 3 October 2024, the NDIS Act was amended under the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act ('Amending Act').
3. Under the Amending Act new Rules were also put into effect. Of particular relevance to this matter, is the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 ('the Transitional Rules').
4. The Amending Act and the Transitional Rules are designed to provide greater clarity as to what types of requested supports will receive funding approval under the Act and those supports that generally will not be approved. These categories of 'NDIS supports' and 'not NDIS supports' are listed in schedules 1 and 2 respectively in the Transitional Rules.
5. As noted in paragraph 89 above, as a result of the Amending Act section 34(1) now reads as follows:

(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

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

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

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

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

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

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

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

Note: For the purposes of paragraph (aa):

(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.

(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).

1. Rule 5 of the Transitional Rules is as follows:

What supports are NDIS supports - general rule.

Supports that are NDIS supports unless otherwise provided:

(1) For the purposes of subsection 10(1) of the NDIS Act, a support covered by column 2 of an item in the table in clause 1 of Schedule 1 to this instrument is an NDIS support (subject to subsections 10(4) and (9) of the NDIS Act and subsection (2) of this section) for:

(a) participants specified in column 3 of the item who have old framework plans; and

(b) prospective participants specified in column 3 of the item, other than prospective participants who, if they were participants, would be required to be given notice under subsection 32B(2) of the NDIS Act (participants that are to have new framework plans).

Note 1: Subsection 10(4) of the NDIS Act allows supports to be declared to not be NDIS

supports for participants or prospective participants. Those supports are declared under

Note 2: Subsection 10(9) of the NDIS Act provides that a support is not an NDIS support for a

participant or prospective participant if the support consists of the provision of:

(c) drugs, the possession of which is a contravention of a law of the Commonwealth,

(2) For the purposes of subsection 10(4) of the NDIS Act, a support covered by column 2 of an item in the table in clause 1 of Schedule 2 to this instrument is not an NDIS support for any participant (subject to subsection 10(6) of the NDIS Act) or prospective participant.

Note 1: Subsection 10(6) of the NDIS Act allows the CEO, on application by a participant, to determine that a support is taken to not be declared under subsection 10(4) of that Act

in relation to the participant if, among other things, the CEO is satisfied that the support

would replace one or more other supports that are NDIS supports for the participant.

Note 2: Determinations under subsection 10(6) of the NDIS Act are referred to in this

instrument as replacement support determinations. For additional rules about replacement support determinations, see section 7 of this instrument.

1. This rule gives effect to section 10(4) of the NDIA Act which states that the Support Rules may declare that a support is not a NDIS support for a participant or a prospective participant.
2. Schedule 2 of the Rules contains a categorised list of requested supports that are declared not to be NDIS supports. Once again, the relevant section is listed below:

Schedule 2 - Supports that generally are not NDIS supports:

1 Supports that generally are not NDIS supports.

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

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

Supports that generally are not NDIS supports.

1 Day-to-day living costs - accommodation and household

(c) - standard home security and maintenance costs, fencing, gates and building repairs;(d) pools, pool heating and maintenance, spa baths, saunas, and steam rooms;(e) standard home repairs. Home improvements standard renovations and maintenance.

1. Also, of importance to an assessment of this matter is both section 10(6) of the NDIA Act and Rule 7 of the Transitional Rules.
2. Section 10(6) is as follows:

The CEO may determine, in writing, that a support is taken to not be declared under

(a) the support is prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and

(b) the support would, apart from subsection (4), be an NDIS support for the participant; and

(c) the participant applies to the CEO in accordance with subsection (7) for the determination; and

(i) the support would replace one or more other supports that are NDIS supports for the participant; and

(ii) the cost of the support is the same or lower than the total of the costs of the supports it would replace; and

(iii) the support would provide the same or a better outcome for the participant than the supports it would replace; and

(iv) any other conditions specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph are met in relation to the support, the participant, or bot

1. Rule 7 of the Transitional Rules is as follows:

(1) For the purposes of paragraph 10(6)(a) of the NDIS Act, the CEO may make a replacement support determination in relation to a support covered by column 1 of an item in the table in subsection (3) of this section.

(2) For the purposes of subparagraph 10(6)(d)(iv) of the NDIS Act, the CEO must be satisfied that the conditions set out in column 2 of an item in the table in subsection (3) are met before making a replacement support determination in relation to a support covered by column 1 of the item.

1 Standard commercially available household items

(a) be necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements; and

(c) reduce or eliminate the need for a support worker or disability specific assistive technology.

1. What these two provisions indicate is that a participant may apply to have a support that would otherwise be considered as not a NDIS support considered as a replacement support determination, subject to it meeting the requirements specified in Rule 7(3).
2. I should note that while it is open to a participant to apply to the Agency to have a support considered as a replacement support, it is not something that the Tribunal can consider as part of a review or has the jurisdiction to do so.
3. I shall return to the effect of the Transitional Rules in this case when I consider whether the requested additional support can be found to be reasonable and necessary under the NDIS Act. However, I note that the Transitional Rules came into effect on 3 October this year and just prior to when the hearing of evidence had concluded.

1. As previously noted, it is important to note that while the hearing of evidence ended on 4 October 2024, due to the Respondent's decision to make various concessions during the conduct of that hearing and then later withdrawing those concessions in its post-hearing submissions, this caused significant procedural fairness issues for Ms. QGRY. The Tribunal listed this issue to be discussed at a further direction hearing on 21 November 2024 and arising out of those discussions, the Tribunal reopened the hearing to address these issues on this date, as noted above in paragraph 85.
2. At the conclusion of the directions hearing, I issued directions to the parties to provide written submissions addressing the effect of these legislative changes to this matter. In this regard I directed that the Respondent provide its submissions on or before 28 October 2024, with the Applicant providing hers by 4 November 2024, and then allowed Ms. QGRY until 22 November to provide any reply to the Agency's submissions.
3. The Respondent's submissions were received on 28 October 2024
4. The Respondent stated that it maintains its position that the following supports do not satisfy s 34(1)(c) of the NDIS Act:
   • The replacement of the existing driveway.
   • The proposed kitchen modifications (including new benches, pantry and drawers).
   • Removal of the first archway.
   • Removal of the second archway.
   • Concreting the path in the backyard.
   • High contrast painting of architraves and skirting boards.
   • Spa maintenance.
5. The Respondent further advised that it had reversed its earlier concession regarding the concreting of the front driveway as the requested support does not meet the revised s 34(1)(f) which requires a decision-maker to be satisfied that a requested support meets the criteria of a defined NDIS support.
6. The Respondent further stated that it did not accept that spa maintenance, an induction cooktop (of any model), or removing vinyl flooring satisfies s 34(1)(f).
7. The Respondent confirmed that it accepts the request for increased lighting meets the s 34 criteria and should be approved as per the amount quoted.
8. The Respondent also confirmed that the high contrast painting in the kitchen, removal of the gas stove top and repair of the bench, and support for a new pantry satisfies s 34, but did not understand that there are discrete quotes for these supports.

Listed below are the Respondent's submissions relating to each of the remaining contested supports.

1. In relation to the requested monthly spa bath maintenance the Respondent's primary submission was that:

The spa maintenance falls within: 'pools, pool heating and maintenance, spa baths, saunas, and steam rooms.' The support is captured as a type of pool maintenance. Further or alternatively, if a spa bath is not a NDIS supports it follows the cost of maintaining it is also not a NDIS support.

1. It further submitted that the evidence indicated that Ms. QGRY would only have limited benefit from this and therefore s 34(1)(c) was not satisfied. Further the anticipated cost did not justify this limited benefit.
2. Also, there was evidence that there were lower cost alternatives such as an automatic dosing device which had not been explored.
3. Further, the Respondent did not accept that Ms. QGRY's support workers could not perform this task under Ms. QGRY's supervision, and no evidence had been provided as to inquiries made of Ms. QGRY's support worker organisations or that there were occupational health and safety ('OHS') risks if support workers performed this task.

The Agency submitted that while it acknowledged that Ms. QGRY could gain some disability related benefits from this support, it did not consider it met section 34(1)(c) (value for money) in that there was a cheaper alternative to Ms. QGRY in using a clothes rack at the rear of her house rather that a clothesline accessible by the pathway. Also, there was limited evidence of the need for Ms. QGRY to access the shed on a weekly basis or whether she may be able to store the items elsewhere or have support workers assist in moving these items.

High contrast painting architraves and skirting boards

The Agency raised certain objections to this requested support in these submissions. It asserted that the evidence before the Tribunal was that improving the lighting in the Applicant's home, combined with the dark gold paint may be sufficient. It referred to Mr McKeown's evidence in his post hearing letter dated 19 September 2024 to the effect that the combination of black and white together will provide the Applicant the maximum benefit and the Applicant's condition will deteriorate such that the greater contrast will eventually be required. However the Respondent further noted that there was no evidence as to the rate of that decline, that Ms QGRY may still be living in the property when that took place or the decline may be so rapid as to render the contrast painting ineffective

1. The Respondent further submitted the following:

The removal of the second archway is a standard home renovation captured by item (e) in column 2, item 1 in Table 2. The removal of the second archway is a standard home renovation because it is not being removed to address a specific disability need of the Applicant (such as a need for higher bench tops or a safe location for her stove top). Rather, its purpose is to add more space to the dining room. The evidence indicates the other kitchen modifications would enable the Applicant to live as independently as possible and safely in her home.

1. The Respondent submitted that this is not a disability-related cost (r 5.1(b)), but rather related to kitchen design. If the support is disability-related, it does not satisfy s 34(1)(c) as the evidence is clear the Applicant would have sufficient light, bench space, and space to cook efficiently without it from the removal of the first archway and modification of the kitchen. The Respondent referred to the evidence of Mr. McKeown who conceded that there would still be adequate light without the second archway being removed.

1. The Respondent submitted that the requested support did not represent value for money on the grounds of either safety or cleaning as Ms. QGRY could have support workers assist with cleaning the existing carpet.

1. The Respondent's primary submission was as follows:

An induction cooktop is a household cost as it is a 'standard appliance'. An induction cooktop is a standard household appliance. While the Applicant has sought an induction cooktop- the NEFF N90 - that has features beneficial for people with vision impairment it

remains a standard household item. There is no evidence the cooktop is prescribed or designed specifically for persons with vision impairment.

1. It further submitted that if the Tribunal were to find that the requested cooktop met s 34(1)(f) it accepted that a cooktop that is operated using tactile and audible controls would also satisfy s 34(1)(c). However, it did not accept that a 90 cm model is necessary as there was no evidence that smaller 70 or 80 cm cooktops had been trialled.
2. The Respondent noting the lack of documentary evidence of the cost of the requested cooktop suggested that the Tribunal would be assisted by information from the Applicant specifying the model of the NEFF N90, 90cm cooktop she seeks and the cost relative to the NEFF N90, 80cm model in her submissions in reply.

1. The Agency conceded that a new pantry should be installed.
2. The Respondent maintains that the entirety of the kitchen cabinetry does not need to be replaced to allow the Applicant to cook safely, independently, and efficiently. Rather, the Respondent for reasons outlined below in relation to removal of the first archway contends that remodelling of the return bench would be sufficient.
3. If the entire kitchen cabinetry needs to be replaced to provide higher benches, the Respondent accepts this will occasion replacement of the kitchen cabinetry as ancillary works. However, the Respondent does not accept the quotes provided by the Applicant represent value for money.

Removal of First Archway and remodelling of return bench

1. The Respondent stated that s 34(1)(c) was not satisfied as Ms. QGRY has not explored whether to remodel the return bench as an alternative location to install an induction stove top.
2. The Respondent maintains that the entirety of the kitchen cabinetry does not need to be replaced to allow the Applicant to cook safely, independently, and efficiently. Rather, the Respondent for reasons outlined below in relation to removal of the first archway contends that remodelling of the return bench would be sufficient.

High contrast painting of architraves and skirting boards

1. The Respondent submitted that the requested support was not reasonable and necessary. In this regard it stated that there was evidence that with improved lighting the existing contrast painting could be sufficient.
2. The Respondent acknowledged that the Tribunal could have regard to Mr McKeown's September 2024 report where he indicated that contrasting black and white paint would provide the maximum benefit and would be required at some point as Ms. QGRY 's eyesight deteriorated further. However, the Respondent also said that it was not known how rapidly this deterioration would be or if she would still be residing in the property when that occurred. Alternatively, her loss of remaining vision may be so rapid as to render the contrasting paint useless.
3. Ms. QGRY in her submission in response raised concerns as to the unfairness caused by the Respondent making concessions during the hearing and then withdrawing those concessions after the hearing. This meant that Ms. QGRY did not have the opportunity to provide evidence on these now recontested supports[44]. The Respondent acknowledged in its final submission the potential unfairness this may cause Ms. QGRY.[45]
4. For these reasons a further directions hearing was held on 21 November so these issues could be addressed and determine the options to address the potential unfairness to Ms. QGRY including reopening the case to adduce evidence on the front driveway and the other requested supports.
5. At that direction's hearing there was a lengthy discussion between myself and the parties as to how best to proceed to address the procedural unfairness caused by recent developments. Ultimately it was determined that I should make directions outlining the timetable for Ms. QGRY to provide additional evidence addressing the matters the Respondent was again contesting (namely the driveway) as well as those where it was relying upon the amended section 34(1)(f) (namely the cooktop, replacing flooring, removal of the second archway and spa maintenance) and then allow additional time for the parties to lodge final submissions. By so doing, this would obviate the need for a further hearing in person and the attendant cost to the parties. Once this process was concluded, I would then finalise my decision.
6. The Directions made at that hearing were as follows:
   1. The Applicant is to provide any additional evidence addressing the matters previously withdrawn by the Respondent, and those the Respondent has identified in its closing submissions as being 'not NDIS supports''
   2. On or before 24 January 2024, the Respondent may give to the Tribunal and the Applicant its written response to the evidence provided by the Applicant in compliance with Direction 1 'written Closing Submissions';
   3. The Applicant is to provide written Closing Submissions within four weeks of either receiving the Respondent's reply to the Applicant's evidence, or upon the Respondent confirming it will not be providing a written reply.
7. Those directions were subsequently varied to allow the Applicant additional time to comply within the original dates.
8. I made a further direction on 24 January 2025 extending the date the Applicant needed to comply with the first direction to 28 January 2025.
9. On 27 February I granted an extension to the Respondent to file its material in response required under Direction 2 above to 28 February 2025 and providing the Applicant a further 4 weeks after such material was submitted to respond to those submissions.
10. Finally, the Applicant requested a further extension to comply with the final direction which was then due on 21 March 2024. In this regard the Applicant noted that she had been significantly impacted by cyclone Alfred which had left her without power. Therefore, I extended the date for compliance to 14 April 2025.

Documentary evidence provided after the hearing.

1. The following additional documents were provided by the Applicant in accordance with my directions:

• Additional information concerning the requested spa maintenance and including a letter of support from Luke McKeown dated 23 October 2024 and a letter of support dated 8 November 2024 from Brooke Farmer of Verity Occupational Therapy.
• I note that Ms. QGRY in her email of 17 November stated that she was submitting this material with a view to seeking a replacement support determination through the Tribunal. I will need to return to this later in my decision, as after making that Direction, I became aware that the Tribunal does not have the jurisdiction to either make a replacement determination or to review a decision by the Agency refusing such a request.

• Brochure for the NEFF T68YYY4C0 Flex cooktop.
• Brochure from Harvey Norman on the NEFF 800mm induction cooktop.
• Brochure from E & S on the NEFF 800mm induction cooktop.

1. Although not directly related to my directions, on 13 December 2024, the Respondent provided an update on the Applicant's request for a replacement guide dog. In that update the Respondent advised that it was open to approving both the cost of acquisition and then training of a replacement guide dog and requested updated quotes in this regard. As this request falls outside the scope of this application I merely note this for the sake of completeness.
2. On 28 January 2025. The Applicant submitted the following:
   • A detailed cost comparison outlining potential savings in the anticipated costs of the various requested building and installation works.
   • A further letter of support dated 22 January 2025 from Brooke Farmer which addressed the Respondent's post hearing submissions.
3. I will not provide a detailed summary of those reports and other evidence from the Applicant here, however they may be addressed in my consideration of the evidence.

The Respondent's response to the Applicant's additional evidence was received on 28 January 2025. As has been my practice throughout this decision I will address the detail of the response under the headings of each requested support:

1. The Agency submitted that the construction of the driveway is a 'standard repair, renovation or home improvement' as specified in section 5(2) and Schedule 2 Item 1(e) of the Transitional Rules. Even if aspects of the proposed works are not considered to be 'standard', the base part of the driveway works (namely the concreting of the driveway) is not a NDIS support.

1. The proposed cooktop (NEFF N90 cook top) is a standard appliance specified in Schedule 2 Item 1(i) of the Transitional Rules and therefore is not a NDIS support.

1. The removal of the existing carpet and replacement vinyl flooring also falls within Schedule 2 Item 1(e) of the Transitional Rules as it is a 'standard repair, renovation or home improvement.' It too is not a NDIS support.

1. The Respondent submitted this item also fell within standard repair, renovation or home improvement and thus is not a NDIS support.

1. The Respondent submitted that the reports provided by Mr McKeown and Ms Farmer went beyond the scope of the directions and introduced new material that had not been tested under cross-examination and therefore should be afforded little weight.
2. It noted that the Applicant provided 5 videos with Ms Farmer's report and that the Tribunal could consider those. It further submitted that it was open to me to consider the cost comparison and updated quotes provide by the Applicant.
3. The Respondent further provided its assessment on the question of what aspects of the various works may be considered to be 'standard' and those that are an adaption or modification designed to address a participant's impairment. Again, these aspects of the Respondent's submission I will return to when I consider the evidence.

1. Ms QGRY's submissions were received on 14 April 2025. These submissions are lengthy numbering more than 100 pages. For that reason, I do not propose to provide a detailed summary however I will provide a concise summary under the heading of each of the requested supports.

1. Ms QGRY states that the proposed modifications consisting of:
   • The removal of the two archways
   • Relocating the placement of the cooktop
   • Installation of wider benches at accessible heights
   • Installation of kitchen cabinets with pull out drawers and
   • Replacing the flooring with vinyl surfacing

are supported by her own evidence and that of Mr McKeown, Mr Stankowski and Ms Farmer. The Respondent for its part has not provided any expert evidence in support of its suggested alternatives.

1. The evidence establishes the deficiencies of the current kitchen layout and the need for modifications to be made.
2. The Respondent's suggested lower cost alternatives were not accepted by Ms QGRY's expert witnesses whose evidence was that the alternatives would not result in equivalent functional outcomes.
3. The modifications are not standard home renovations with her expert witnesses' evidence establishing that they are directly related to her disability.

1. The purpose behind the proposed removal of the two archways is to provide greater natural light to the living areas of Ms QGRY's home which will remove shadowing caused by the existing archway and enable her to better navigate in the kitchen and dining room areas.
2. The details of each archway are as follows:

This is located between the kitchen and dining room. It currently blocks natural light from entering into the kitchen and, if removed would allow greater light into the kitchen which would improve her ability to use the kitchen safely and efficiently. Its removal will also then create room for the installation of a bench with the NEFF N 90 induction cooktop.

1. This is located at the rear of the dining area and limits the amount of natural light entering that area and the kitchen. Its removal will also increase the amount of natural light thereby enhancing her capacity to see her food, cutlery, condiments, and glassware.
2. Ms QGRY states that in relation to the first archway, the Agency initially disputed this item and then requested additional evidence as to whether it was a structural support in the home. This requested evidence was provided however the Agency has not withdrawn its objection to this requested support.
3. In relation to the second archway, this was addressed in the Agency's most recent closing submission and its request that the Tribunal exclude Mr McKeown's clarification supporting its removal.
4. In this regard I note that while the Agency in its October 2024 final submissions indicated it objected to the removal of both archways, stating that they did not satisfy section 34(1)(c), in both that document and the February 2025 submissions, the substance of those submissions were limited to the second archway only.
5. In both the October 2024 and the February 2025 submissions it was asserted that the second archway came within Schedule 2 Item 1 (e) of the Transitional Rules in that it amounted to a day-to-day expense.
6. In response, Ms QGRY asserted that the removal of both archways was not a standard home renovation and was clearly directly related to her disability.
7. The expert evidence she provided supported the removal of both archways for the reasons outlined above.

1. Ms QGRY outlined the Agency's objection to the requested support, namely that it is a 'standard household appliance', that it is not prescribed or designed for those with a disability and its features are commercially available and capable of use by the general population.
2. In response Ms QGRY submitted that the cooktop was not a standard household appliance citing the following features:
   • The Twist Pad Flex Control which is a removable, tactile and illuminated dial which allows usability by those with a vision impairment.
   • Audible and Predictable heating controls which provides clear auditory and tactile feedback and allows predictable levels of heating depending upon the location of the cooking pots. Again, these features allow someone with a vision impairment to effectively interact with the appliance.
3. Ms QGRY submitted that the alternatives suggested by the Agency such as a touchscreen or the cooktop having an inbuilt exhaust fan located between the hotplates were not accepted by her experts and have inherent safety risks and would not be accessible by a person with a vision impairment.

1. The Respondent's submission was that the replacement of the existing driveway is a 'standard repair, renovation or home improvement,' listed in Schedule 2 of the Transitional Rules.
2. This assertion ignores the purpose of the proposed replacement driveway which is to address her functional impairment and to reduce the current high risks posed to her by the condition of the existing driveway. The entire replacement of the driveway is necessary to enable her safe access to her own property.
3. Ms QGRY noted that the Agency in its submission asserted that some of the elements of the proposed support could be NDIS supports as identified in Schedule 1 Item 22 of the Transitional Rules while others such as the concreting were clearly not NDIS supports.

However, citing the principle established in M_c_Garrigle, that once a support is 'identified and described' it should be fully funded such that if the Tribunal considers it to be a disability-related support it should be funded in full.

1. The Respondent's stated position on this requested support is that it is a 'standard repair, renovation or home improvement' with limited functional necessity. It further asserted that it was not necessary as Ms QGRY can already mobilise in her own backyard albeit without carrying any items, and that having a clothes rack for drying clothes at the rear of the house and Ms QGRY utilising her support works to remove or return items from her backyard shed would be a lower cost alternative.
2. In response, Ms QGRY states that the requested support is not for her convenience and was recommended to address the identified safety risks arising out of her navigating the backyard with its uneven terrain.
3. The suggested alternatives present their own risks and are only short-term in nature and potential benefit. The proposals also ignore the benefits of the proposed support to her autonomy and well-being. Nor should she be placed in a position of risking her safety by navigating this uneven ground or become reliant upon her support workers to access her shed.

1. The purpose of the contrast painting is to allow Ms QGRY to better navigate in her own home by allowing her to better distinguish blurred shapes arising out of her vision impairment and reducing eye strain. It also reduces the need for artificial lighting.
2. The Respondent's position is that the requested contrast painting is both unnecessary and does not represent values for money as per section 34(1)(c). Instead, the Agency argued that improved artificial lighting in conjunction with the contrast painting in the kitchen would adequately address this need.
3. Ms QGRY noted that the Agency was prepared to fund contrast painting in the kitchen which in her view undercut its refusal to approve this in other areas of the home.
4. In response, Ms QGRY submitted that:
   • The Agency's position whereby it would approve contrast painting in the kitchen but not in other parts of the home, was illogical.
   • She requires this to assist in all parts of her home, not just in the kitchen area.
   • Her vision impairment is likely to worsen over time and requires a higher level of contrast than she does currently.
5. She further submitted that having high-contrast painting in her home was not a discretionary item and it is endorsed by expert opinion and is a disability-specific modification. It is not a day-to-day living cost and will enhance her safety in her own home and reduce her reliance upon support workers.

1. The requested support is for funding for a Smart Spa Controller and regular monthly spa maintenance.
2. The Respondent's position is that the requested support falls under Item 1 of Schedule 2 of the Transitional Rules namely pools, pool heating and maintenance, spa baths, saunas, and steam rooms. It is therefore not a NDIS support.
3. In response Ms QGRY stated that she was not seeking this support as part of standard home care or maintenance rather it is a 'disability specific intervention for the purpose of improving functional independence and safe participation in a home-based activity that she not only enjoys but is directly beneficial to her.'
4. The support will increase her functional independence and reduce her reliance on existing formal supports.

1. The issue to be decided by the Tribunal is whether funding for the following supports are reasonable and necessary supports pursuant to section 34(1) of the NDIS Act:

(a) Concreting the front driveway and installing additional features

(b) Installation of a concrete pathway in the backyard

(c) Removal of two archways in the kitchen/dining room area

(f) Removal of existing carpet in the dining area and replace with vinyl flooring

(g) High contrast painting of architraves and skirting boards

1. Items (a) to (g) I will collectively refer to as property modification supports.
2. Given the large number of supports I am required to consider, I propose to firstly identify and address those that the Respondent contends are 'not NDIS supports.' This is because if I were to find that a requested support is not a NDIS support, I am not required to consider the remaining criteria in section 34(1) of the NDIS Act. The other basis for disputing the requested supports, namely whether they represent value for money, I will address separately.

1. Before I begin my assessment, I will make the following observations. Firstly, I am satisfied that the weight of the evidence clearly indicates that all the requested supports are related to and designed to ameliorate the practical impacts of Ms QGRY's disability, namely her greatly reduced eyesight and taking account that the available medical evidence indicates that over time her vision impairment is likely to worsen.
2. I have given significant thought to the scope of the Transitional Rules and how they may relate to the various supports being requested, particularly those that could come under the heading of property modifications.
3. In my view, it is necessary to first analyse the various arguments before me as to how best I should classify the requested property modifications and whether they are generally NDIS supports or not NDIS supports as required under section 34(1)(f) of the Act. This should be the first order of business as this is one of the primary objections made by the Respondent and because, if I make a finding that any of the requested supports are not NDIS supports, that is the end of the matter, and I will not need to consider the other section 34(1) criteria as they relate to those items.
4. This is because for a support to be approved, it must satisfy all the listed criteria in section 34(1). If a requested support fails to satisfy any one of the criteria, it cannot be approved.
5. In conducting this assessment, I have taken guidance from Senior Member French's analysis of the Transitional Rules in the recent Tribunal decision in FSWN and National Disability Insurance Agency.[46] I have recorded Senior Member French's recommended approach below:

Stage 1 Ascertain if the requested support is an "NDIS" Support as defined. This inquiry is focused on the support, not the participant.

Step 1: Determine if the requested support is of a character that falls within the scope of a category of support specified in column 1 of the Table to Schedule 2 of the Transitional Rules by reference to the description of supports that fall within the scope of that category contained in column 2 of the Table.

If the answer to that question is "yes", then stage 1 is complete. The requested support is not a NDIS Support and cannot be approved for inclusion in a SoPS because of s 34(1)(f) (subject to a replacement support determination being made, as to which see following).

If the answer to that question is "no", then proceed to step 2 of stage 1:

Step 2: Determine if the requested support is of a character capable of falling within the scope of a category of support specified in column 1 of the Table to Schedule 1 of the Transitional Rules by reference to the description of supports that can fall within the scope of that category contained in column 2 of that Table.

If the answer to that question is "no", then the requested support will not be a NDIS Support and cannot be approved for including in a SoPS because of s 34(1)(f).

If the answer to that question is "yes", then the requested support will be a NDIS Support that is capable of being approved for inclusion in a SoPS by operation of s 34(1)(f), and stage 2 of the enquiry is reached.

Stage 2: Ascertain if the requested support satisfies each of the other criteria specified in s 34(1)(aa) to (e) and the associated Supports Rules. There is some overlap of the stage 1 and 2 enquiries. However, in my opinion stage 2 is primarily a participant focused enquiry. That is, it seeks to establish the benefit of the support to the participant. To the extent that stage 2 also requires examination of the efficacy of the support per se it adds nothing to the outcome of the stage 1 enquiry in my opinion.

The question of whether a requested support is, or is not, a NDIS support is a mixed question of fact and law. The issue of fact to be determined is whether the requested support falls within a category of items specified in column 1 of the Tables to Schedules 1 and 2 of the Transitional Rules. If it does, it will either be, or not be, a NDIS support by operation of law.

1. The Agency's submissions are that requested items such as the driveway repair, the construction of a pathway in the backyard, the kitchen renovations, the removal of the carpet in the dining area and replacement with vinyl flooring, the funding of the NEFF 90 cooktop and the removal of the archways all come within Schedule 2 Item 1. In their submission these either fall within Item 1(e) ('standard home repairs, home improvements standard renovations and maintenance),' or Item 1(i) ('standard household (including garden) items, appliances, tools, and products).
2. The Respondent's submissions as they relate to the maintenance of the spa is that they assert this is covered by Schedule 2 Item 1(d). 'Pools, pool heating and maintenance, spa baths, saunas and steam rooms.' This latter category I shall address separately in this decision.
3. Taken generally, I do not think the intention in passing the transitional rules was to create a legislative environment whereby no property modifications no matter how directly related they may be to addressing a participant's disability needs, could be found to be NDIS supports. Rather my view is that the Transitional Rules were intended to address the potential ambiguity and disputation arising out of the previous wording in section 34(1)(f) which stated:

(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

(i) as part of a universal service obligation; or

(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

1. I further note that the Respondent in its 28 February 2025 submission referred in passing to my decision of Duse and National Disability Insurance Agency[47] citing the following paragraph from my decision:

The Tribunal must be positively satisfied the support is a NDIS Support pursuant to s 34(1)(f). If a support is listed in Schedule 2 of the Transitional Rules, it is not a NDIS Support. This is the case even if the support is required for a disability related purpose.[48]

1. I note that this observation was made in the context of the particular facts of that case in which the participant was seeking funding for art supplies. I do not consider that observation applies to other categories of requested support where the wording of the Transitional Rules clearly differentiates between 'disability related' and 'non-disability related' and NDIS supports and not NDIS supports as is the case here.
2. In Duse I considered that this requested support met all the other section 34(1) criteria, other than section 34(1)(f), however, when assessing the wording in item 4(g) of Schedule 2 (standard recreational equipment and tools including toys, balls and racquets), I was satisfied that the art supplies Mr Duse was seeking were standard recreational equipment and it was in that context, I made the observation cited by the Respondent in paragraph 204 above.
3. In any event in this case the key words for those items listed in item 1 of Schedule 2 cited by the Agency are the words 'standard items.' I consider that these words were deliberately included to differentiate certain home repairs, appliances and other items from those that may have a direct relationship to a participant's disability and are intended to address those impairments. I will shortly address how these words are defined in Rule 4 of the Transitional Rules and how that may influence my decision on the classification of the property modification supports and the other requested supports.
4. I am strengthened in this view by the wording of Schedule 1 Item 22 of the Transitional Support Rules which includes the category 'Home modification design and construction' as 'supports that are NDIS supports unless otherwise provided'. The supports are described as follows.

Supports that design, change, or modify a participant's home to help the participant live as independently as possible and to live safely at home. This includes the following:

(a) Installing equipment or changing a building's structure, fixture or fittings.

(b) Internal and external building modifications to remedy damage arising exclusively from disability-related behaviours or use of NDIS funded assistive technology or equipment.

(c) Regulatory certification requirements for works.

1. I note that the Respondent while referring briefly to this provision in paragraph 5 of its February 2025 submissions and in paragraphs 25 and 26 of its October 2024 submissions, has not provided any significant guidance as to why I should or should not consider this item as applying to the requested property modifications. The Respondent did indicate in paragraphs 11 to 14 of its February submissions that certain components of the various property modifications such as the driveway could fall within the Schedule 1 'home modification design and construction', and others properly construed came within the Schedule 2 'standard home repairs, home improvements standard renovations and maintenance.
2. It cautioned that:

any project that included some features that were modifications and adaptions to address a participant's impairment was found not to be standard, would defeat the purpose of the Transitional Rules. The result would be that standard home repairs and renovations which would otherwise not be NDIS Supports would be converted to NDIS Supports by minor alterations to design.

1. I will return to this argument later in my analysis.
2. Ultimately the initial task a decision maker must determine is whether the requested property modifications more appropriately come within Item 1 in Schedule 2 in which case it will not be a NDIS support or Item 22 of Schedule 1 in which case it will generally be a NDIS support or.
3. For a requested support to fall under item 22 of Schedule 1 it must consist of designs, changes or modifications of a participant's home intended to help the participant live as independently as possible and to live safely in their home.
4. The following excerpts from the Home Modifications Guidelines also further help in this regard:

'We generally don't fund the following features':

Cosmetic finishes for fixtures, fittings, or materials, like tiles or tapware

Modifications that make your house bigger, like adding another story

Standard living costs or routine repairs and maintenance...

'W_e can only fund home modifications if they relate to your disability_'...'We don't fund home modifications that aren't related to your disability. These might include renovations, restorations or repairs, or changes to your home layout if they don't relate to your disability support needs'.[49]

1. The supports that the Agency submitted are not NDIS supports, are the following:
   • Replacement driveway
   • Rear pathway
   • The replacement of carpet in the dining area with vinyl flooring.
   • The proposed removal of the second archway
   • High contrast painting (other than in the kitchen)
   • The proposed NEFF N 90 cooktop ('the cooktop')
   • Spa maintenance
2. I will identify the first five of the above supports as the property modification supports.
3. In keeping with stage 1 of the approach set out in FSWN, I do not consider that the requested property modification supports are covered by the classes of supports set out In Items 1 (e) and (i) in Schedule 2.
4. However, I do consider that the requested spa maintenance and the acquisition of a smart controller falls under item (d) in Schedule 2.

pools, pool heating and maintenance, spa baths, saunas and steam rooms

1. I consider that the requested maintenance of the spa and the smart controller constitutes 'pool heating and maintenance.'
2. There is no apparent equivalent category in schedule 1 other than potentially Item 22 in Schedule 1 however I do not consider the spa maintenance could arguably come under the concepts of 'design, change or modify a participant's home'.
3. I again note Ms QGRY's evidence as to both the direct and indirect benefits she gains from having regular access to the spa. I accept all those arguments and the submitted benefits.
4. However, as I observed in Duse, the prohibition applies even if there is a clear relationship between a participant's impairment and the requested support.
5. Therefore, I find that the request for spa maintenance and the smart controller are not NDIS supports and are therefore not reasonable and necessary.
6. Addressing whether the requested property modification supports are standard home repairs, home improvements, standard renovations, or maintenance, I do not consider they can properly be categorised as standard repairs or renovations. My primary reason for reaching that view is, as I have already indicated, that the common feature of the requested supports is their expressed purpose of addressing Ms QGRY's impairments and ensuring she can live as independently as possible and live safely in her home.
7. The word 'standard' is not defined in the Transitional Rules, however, 'standard item' is defined in Rule 4 as an item that is not modified or adapted to address the functional impairments of the participant or prospective participant.
8. In its October 2024 submission, the Respondent made the following observation as to what may constitute a standard item:
   • The Respondent considers standard can be distinguished from bespoke or disability specific items or modifications to a home, as opposed to common repairs or modifications.[50]
9. I have already noted in paragraphs 196 and 224 that I am satisfied on the evidence before me that most of the requested supports are related to and designed to ameliorate the practical impacts of Ms. QGRY's impairments, namely her greatly reduced eyesight. Because of this, I do not consider they could be classified as 'standard.' All the requested property modification supports have this common thread of enabling Ms. QGRY to live both independently and safely in her own home.
10. Given this common thread, I have decided that the property modification supports are more aligned with the classes of supports in Item 22 of Schedule 1 in that they qualify as supports that design, change, or modify a participant's home to help a participant live as independently as possible and to live safely at home.
11. In the interests of clarity, I find that the following requested supports are NDIS supports:
    • Replacement driveway.
    • Rear pathway
    • The replacement of carpet in the dining area with vinyl flooring.
    • The proposed removal of the second archway.
    • High contrast painting of architraves and skirting boards (other than in the kitchen)
12. Returning to the requested cooktop this could arguably come within the definition of a 'standard item' in Rule 4 (1):

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

1. The Respondent in its February 2025 submission stated:

The fact an item has features suited to a person with an impairment does not mean it has been modified or adapted to address a person's functional needs. There is no evidence NEFF has modified their stove tops in the NEFF N90 so it can be used by a person with vision impairment. The Applicant seeks to purchase a standard NEFF N90 cooktop available to persons with or without a disability.

1. While I agree with the central point of this argument that the stovetop is not modified or adapted for those with vision impairment, I do not readily agree that the definition in Rule 4(1) applies to the requested cooktop.
2. Firstly, I think it necessary to return to the wording in Item 1(i) in Schedule 2 which is:

'standard household (including garden) items, appliances, tool and products.'

1. In my view this could potentially be interpreted in two ways.
2. The first interpretation is that it was intended that all the various categories (i.e. appliances tools and products) are covered by the term 'standard household items.'
3. The second interpretation is that 'standard household items' constitute one category (and subject to the definition in Rule 4(1)) with a separate discrete category being 'standard household appliances, tools and products', which is not covered by that definition.
4. For the purposes of this decision, I do not consider it necessary to indicate which of these two interpretations is preferable.
5. The Respondent in its October 2024 submission stated:

An induction cooktop is a household cost as it is a 'standard appliance'. An induction cooktop is a standard household appliance. While the Applicant has sought an induction cooktop- the NEFF N90 - that has features beneficial for people with vision impairment it remains a standard household item. There is no evidence the cooktop is prescribed or designed specifically for persons with vision impairment.[51]

1. In its January 2025 submission it stated further that:

it relies on Mr McKeown's report in relation to the NEFF N90 Cook top. Mr McKeown states that the NEFF N90 Cook top has 'tactile and audible features...uniquely suited to vision impaired users.' The fact an item has features suited to a person with an impairment does not mean it has been modified or adapted to address a person's functional needs. There is no evidence NEFF has modified their stove tops in the NEFF N90 so it can be used by a person with vision impairment. The Applicant seeks to purchase a standard NEFF N90 cooktop available to persons with or without a disability.

The NEFF N90 is not a standard appliance in the context of the Applicant's disability. Under the Transitional Rules, a "standard item" is one not adapted to address functional impairments. This cooktop, however, is recommended precisely because of its disability-adaptive features, which now also include smart control integration, and which directly accommodate the Applicant's vision impairment, making it inherently non-standard for her functional needs.

A standard cooktop, particularly one with full touchscreen controls, would be entirely unusable for the Applicant, offering no safe or independent means of operation. The fact that the Applicant suffers from vision impairment is precisely the reason that she is limited to specific appliances, guided by professional support and training.[52]

1. She added the following as to how the NEFF N 90 cooktop's features distinguish it from 'standard appliances':

The critical distinction between standard appliances versus the disability-specific features required for the Applicants function are demonstrated below:

• Twist Pad Flex Control: This removable, tactile, and illuminated dial offers essential usability for individuals with vision impairments. Standard appliances with smooth touch interfaces or presents insurmountable usability barriers to the Applicant.
• Audible and Predictable Heating Controls: Unlike standard induction cooktops with smooth interfaces that require visual interaction, the Neff N90 provides clear auditory and tactile feedback, enabling independent, safe, and reliable operation by the VI Applicant. The integrated heating feature allows the user predictable levels of heating dependant on the location of the pots. This allows the vision impaired user to memory map the appliance for the desired heating needs such as boiling at the front and simmering at the back- via automated functioning.
• The Respondent's argument suggests that because this model is commercially available to both disabled and non-disabled users, it fails to meet the definition under the Transitional Rules. In this case, the Applicant has been explicitly recommended by multiple professionals, to utilise the Neff N90 induction cooktop due to the familiarity, tactile controls, safety features, and due to the absence of a superior alternative for independent cooking for vision impaired users.[53]

1. In assessing this issue, I have had regard to my colleague, Member Heron's recent decision in Hyde and National Disability Agency (NDIS) [2025] ARTA 365.
2. The support the subject of that decision was a home automation system which could control many aspects of a participant's home environment.
3. In that case, as here, the Agency submitted that the requested item was a standard home security system and was available to be purchased by the wider community.
4. In response, Member Heron made the following observation:

In my view adopting this definition means participant's choice and control would become significantly narrowed, foregoing the principles of accessibility and inclusion as they relate to people with disability and their full participation in life. I consider that adopting this definition would only proffer to widen the gap between the disability community and mainstream Australia. Adopting this definition would negate the fact that many mainstream devices or items are often highly innovative, cost effective, more widely available and generally more inclusive

1. I consider the same could be said of the proposed induction cooktop. It has many features that make it both safe and accessible to those with vision impairments. The fact that a sighted individual may be able to purchase this item does not undermine this central aspect of this cooktop arising out of its tactile and audible control features.
2. In taking this position I am not aware of any modified or adapted cooktops currently available that would meet that definition. Mr McKeown's in his reports appears to buttress that observation. [54]
3. Prior to the passing of the Transitional Rules, and during the conduct of the hearing, the Respondent's position was that an induction cooktop with the features the NEFF N90 has, was the most appropriate option available.
4. Its current position is that while it concedes that the current gas cooktop should be removed it does not consider the induction cooktop is a NDIS support.
5. Taking a holistic approach to the overall kitchen modifications this either results in Ms. QGRY having a kitchen without a cooktop or having to fund this herself.
6. I fully appreciate the central role cooking and entertaining guests plays in Ms. QGRY's life. It is conceded by the Respondent that a gas cooktop is highly unsuitable for her to use due to the significant risk of being burnt.
7. Taking all these observations into account I find that the requested NEFF N90 induction cooktop is a NDIS support.
8. I note that the Respondent in its October 2024 submissions conceded that if the Tribunal was to find that the cooktop was a NDIS support it also accepted that it met section 34(1)(c) but still disputed that the 90-centimetre model (N 90) was required when there had not been a proper trial conducted of the 70-centimetre or 80-centimetre models.[55]
9. Immediately after making that observation in the following paragraph (65) the Respondent then stated that it had no objection to the NEFF N90 model.
10. Despite this apparent contradiction I will assume the Respondent contests that the N90 model is the most appropriate.
11. I do not consider it necessary for Ms. QGRY to trial all the options the Agency has identified. I note that the only difference between them in terms of their features, is their dimensions.
12. Ms. QGRY in her oral evidence provided a clear description of the challenges she faces when cooking and the risks in using a smaller cooktop than the N90 model. She has determined that the N90 model will best allow her to cook meals safely. Independently and without being reliant on assistance from her support workers.
13. I accept this evidence as well as that provided by her experts.
14. I therefore find that the requested NEFF N 90 model is a reasonable and necessary support.
15. I now return to the Respondent's argument concerning how to address requested property modification supports that may consist of a combination of standard and disability-specific elements; given the centrality of this argument to this case I will record it below in full:

The Respondent notes that building works may contain several component parts. Some parts of the project may be 'standard' repairs or improvements and therefore a day to day living cost within the meaning of the Transitional Rules. Other parts of the work may be identified as modifications that would be NDIS Supports under Item 22 of Schedule 1. The fact that some features of a building project are not standard, does not render the entire project a NDIS Support. Rather, the Tribunal should identify the components of the work

that constitute modifications or adaptions (i.e. not standard) and consider those as separate support requests.

This does not, as the Respondent has previously emphasised, conflict with the principle in McGarrigle v National Disability Insurance Agency [2017] FCA 308; 252 FCR 121. In McGarrigle her Honour Justice Mortimer at [93] held that once a support is 'identified and described' it must be fully funded. Following McGarrigle, the Tribunal may in this case separately identify features of the driveway works that are separate support requests. For example, the lighting in the driveway may be a modification for the Applicant's disability. The cost of that support - separate from the driveway works - may be a NDIS Support.

The alternative approach, whereby any project that included some features that were modifications and adaptions to address a participant's impairment was found not to be standard, would defeat the purpose of the Transitional Rules. The result would be that standard home repairs and renovations which would otherwise not be NDIS Supports would be converted to NDIS Supports by minor alterations to design.[56]

1. As I understand this submission, if a proposed property modification support comprises elements that can be classified as standard and others that come within Item 22 of Schedule 1, it is necessary the Tribunal be provided with evidence which identifies and prices those elements of the proposed works such that are covered by Item 22 in Schedule 1.
2. In this matter I have been assisted by the recent Tribunal decision of Senior Member Shepherd in Dudgeon and National Disability Insurance Agency (D_udgeon_).[57] In that case, further reference was made to the Federal Court decision of Public Trustee of South Australia as Litigation Representative for Isherwood and National Disability insurance Agency (No 2) [2023] FCA 852. ('Isherwood')
3. In Dudgeon the Applicant was seeking funding for the modification of an existing home to create a purpose-built area in the home to allow the Applicant to live in a fully modified space specific to the Applicant's disability needs.[58]
4. In Dudgeon, the Respondent made similar submissions to those being made here:

The Respondent considers that it could fund discrete aspects of a scope of works that involved expenditure that was 'properly related to an Applicant's disability' and that:

...the Applicant's family would need to provide a proposal that identified and quantified which costs were attributable to what disability-specific needs as distinct from general home renovations necessary to make a space habitable for any person (such as tiling, waterproofing, insulation, plastering, extending services etc)[59]

1. In response, Senior Member Shepherd referred to the following excerpt from Isherwood:

...the fact that alterations might have the consequence that they will renovate or improve an aspect of a home does not, of itself, mean that the works are not a reasonable and necessary support. ......

Alterations which serve no purpose as a support for a participant may be characterised as renovations or repairs but that would be because they are not a reasonable and necessary support. However, it is an error to approach proposed supports that take the form of alterations to a home on the basis that if they might be characterised as resulting in some form of improvement or renovation to the home that they cannot be reasonable and necessary supports.

1. Senior Member Shepherd then went on to make the following finding:

I accept that works such as tiling, waterproofing, insulation, plastering and extending services may be required in modifying or renovating any home. However, I do not consider that the proposed home modification may be characterised as 'standard renovations and maintenance.

Based on the evidence of (names removed) and the Applicant's mother, I accept that the entire proposed home modification is specific to the Applicant's needs and the Applicant's care, and so may be characterised as a support as described as 'supports that design, change or modify a participant's home to help the participant live as independently as possible and to live safely at home'. I find that the proposed home modification is a NDIS support.[60]

1. I accept that the approach taken by Senior Member Shepherd is the correct one and therefore find that the following property modifications supports are NDIS supports under Item 22 of Schedule 1, that they are specific to Ms. QGRY's needs and should therefore be funded in full.
2. These are the following items:
   • The kitchen modifications
   • Removal of first archway
   • Removal of the second archway.
   • High contrast painting of architraves and skirting boards.
   • Installation of a rear pathway
   • Spa maintenance.
3. I note that the Agency in its submissions raised additional objections to several of the proposed property modifications on the grounds that they did not represent value for money as required under section 34(1)(c).
4. I do not need to consider this argument as it relates to the spa maintenance as I have already found it is not a NDIS support.
5. I will address these objections under each of the requested supports:

1. Before addressing this requested support, I consider it appropriate to firstly provide a description of the current layout of the kitchen, the obstacles it creates to Ms. QGRY's effective use and then provide an outline of the proposed replacement design and layout.
2. The current kitchen is rectangular in shape and has three large widows on three sides at one end of the room.
3. The fridge, stove and current gas cooktop are located at the other end, which due to its location is furthest away from the sources of natural light provided by the kitchen windows.
4. Ms. QGRY provided the following description and its shortfalls:

My kitchen is now unsafe and difficult for me to work in. My gas stove is in a corner that even for sighted people is challenging. I have been unable to move the stove due to the structural elements of the kitchen. The numerous windows are very important for natural light which helps my vision. As such I do not want to lose them, however, a stove cannot be located under a window. There is nowhere else in the kitchen to move the stove without removing the archway. Yet to leave the stove where it is means that I will only be able to safely use one of the four gas hobs, which in turn means a meal must be cooked in single stages. I cannot put the potatoes on to boil while I cook gravy, cook my meat, and steam my vegetables. To minimise the risk of burns, I must cook each item separately, meaning what should be a quick midweek meal takes me hours, and is no longer a pleasurable task. And even though I exercise the utmost care, I still burn myself or have near misses.

My kitchen is also very short on accessible storage space. I find the current space very dark and cluttered. As a result, when I try to cook, I struggle to identify ingredients, utensils, bowls, pans, containers, and so on. The benches, although a normal height seem to be too far from my functional vision to safely and accurately see what I am doing, without making a terrible mess while measuring, stirring, cutting, chopping, etc. Just the thought of how difficult it will be to cook discourages me from cooking at all, causing me to be reliant on others to complete an activity that I previously loved. The times I do cook, I struggle with my lack of vision. I often rely on AIRA, my son, or a support worker to help me locate items and ingredients which are right under my hands but unable to be located due to the clutter. This absorbs time in food preparation and means that I must allocate at least double the time an average person cooking would need for the same meal, just so the meal is served at a decent hour. Relying on others to help me with such simple tasks as finding the right bowl is also disheartening and erodes my confidence.

When I moved to Queensland between 2009 and 2012, I designed a kitchen with the assistance of an occupational therapist from Vision Australia. That kitchen catered well for my vision deficits. It has an abundance of storage space, smart task lighting over every surface and over each draw and cupboard to ensure adequate light on all tasks. The Queensland kitchen has contrasting benches and cupboards which assist me in identifying where everything is and helps me focus on what is on the bench tops. Draws and doors have no handles, allowing easy access to all areas without fumbling for (or bruising myself on) a knob or handle. It has high benches which bring the working surface closer to my field of functional vision. It has a Neff induction cooktop - the only induction stove I have found with a physical knob to adjust temperature, that also has audible output as you turn it up and down. During COVID whilst I remained in Queensland, I was again able to utilise this kitchen, and it was simply like going back in time to when I could cook with vision. All tasks from buttering toast to cooking Christmas lunch (tasks I couldn't even consider doing in the Blackburn kitchen) were completed without the barriers I have in my current setup. And I loved being able to cook again. This demonstrated for me that a purpose-built kitchen in my own home would enable my autonomy, and reduce my reliance on paid workers; something of utmost importance to me when it comes to family occasions where privacy and pride is important[61]

1. The essential features of the modified kitchen are as follows:
   • Removal of the first and second archways.
   • Remove and replace the existing 4-hob gas stovetop and primitive range hood with a 4-zone induction cooktop and a range hood that incorporates task lighting.
   • Relocate the cooktop & range hood to that 1000mm section of wall squarely between the two largest windows along the longest wall.
   • Remove and replace the existing kitchen cabinetry.
   • Installing new kitchen benches with a height of 1030 cm and increased depth along the longest wall close to the windows.
   • Replace existing cupboards with pull out drawers opening to 180 degrees.
   • Replacing shelving with carousel type shelves.
   • Install task lighting and high contrast benchtop and cabinet colouring.
   • Replace current vinyl and carpet flooring with single high contrast vinyl flooring.
2. As I have previously noted, the basis of the recommended modifications is to ensure Ms. QGRY's safety and ease of operation in the kitchen taking account of her vision impairment.
3. The Respondent in its October 2024 submission acknowledged that:
   • Ms. QGRY requires higher benches to work to bring items within her field of vision.
   • Widening of the benches with subtly curved edges is of benefit to Ms. QGRY but did not accept they are essential for her to cook safely and independently.
   • Ms. QGRY requires cupboard drawers that can be drawn out so she can use artificial or natural light to identify the contents of those drawers.
   • The kitchen cabinetry cannot be retrofitted to meet the Applicant's needs and that a new pantry should be installed.
4. The Respondent maintained that not all the kitchen cabinetry needs to be replaced to allow the Applicant to cook safely, independently, and efficiently. Rather, the Respondent in relation to removal of the first archway contends that remodelling of the return bench would be sufficient.
5. It asserted that an alternative would be to have a higher and wider bench with provision for some storage where the current return bench is located. It cited the evidence of Ms. Farmer (T 300 (30 - 45)), Mr Stankoski (T 132(10 - 12)), and Mr McKeown (T 193 (20 - 40) that even benches of the same height are preferable for persons with vision impairment. Mr Stankoski said multiple levels would not be entirely safe but could be workable (T 132(35) - 133(16)). The Applicant presently has three levels in her current kitchen (Mr McKeown letter 18 September 2024, p 4).
6. To provide higher benches, the Respondent accepts this will occasion replacement of the kitchen cabinetry as ancillary works. However, the Respondent does not accept the quotes provided by the Applicant represent value for money.
7. The Respondent's position is there is insufficient evidence for the Tribunal to be satisfied that the Applicant could not use a kitchen with different bench heights and that additional storage could not be added to the remodelled return bench.
8. As I noted in paragraph 278, the Respondent while acknowledging that if all the kitchen cabinetry needed to be replaced to install higher benches, this would require the replacement of the existing kitchen cabinetry, however it did not accept that the quotes provided by the Applicant represent value for money.
9. It noted that the current quotes are based on kitchen doors that open to 180 degrees. While it accepted that such doors would be of benefit to Ms. QGRY, it also noted that Mr Stankoski's evidence was that he knew many vision-impaired people who could successfully manage with kitchen doors that open to 90 degrees (T, 125). Similarly, the self-closing feature of the recommended cupboard doors was not reasonable or necessary as Ms. QGRY could close these doors herself.
10. In my observation, much of the dispute as to the extent of the proposed kitchen modifications comes down to the potential location of the stovetop. I consider my decision in this regard will depend upon which of the competing proposals is preferable and meets the section 34(1)(c) requirement of representing value for money.
11. I admit that I am at somewhat of a loss as to the basis behind the Respondent's suggested alternatives, other than on the issue of relative cost. I note that it on the second day of the hearing advised the Tribunal that it would no longer rely on its expert witness, Ms. Houston's reports and they did not call her to give oral evidence.
12. For the sake of completeness, I accept that the evidence establishes that:
    • Ms. QGRY's proposed kitchen modifications are preferable to the Respondent's suggested use of the current return bench.
    • That it is essential that the benches be at the same height and level for Ms. QGRY's safety and ease of operation.
    • The preferable option is the installation of kitchen cabinet doors that open to 180 degrees and are self-closing.
13. I also note that Ms. QGRY has submitted a revised cost estimate as part of the additional evidence she provided on 28 January 2025. Some of these revised costings relate to various aspects of the proposed kitchen modifications and I base my assessment of value on these revised figures.
14. Ultimately, I have decided that Ms QGRY's proposals for kitchen modifications comply with section 34(1)(c) and therefore are reasonable and necessary. This requested support is therefore approved.

1. In its October 2024 submission, the Respondent contended that the first archway did not satisfy section 34(1)(c).
2. It appears to have based that contention on the evidence of Mr Stankowski where he appeared to indicate that artificial light was preferable to natural light. While not expressly indicated in its submissions, it appears that the Agency is asserting that as it has agreed to fund artificial lighting in the kitchen area this is sufficient to address Ms. QGRY's level of vision impairment.
3. I do not agree with that assessment. Ms. QGRY's evidence addressed in detail the difficulties she faces in effectively uses the existing kitchen. Part of this is the shadowing effect of the first archway which I do not consider artificial lighting will completely address.
4. I also note that the basis for the request is not just related to increasing natural light in the kitchen but also to create space for the installation of the requested cooktop.
5. In any event, the removal of the first archway is a central component of the overall proposed kitchen modification which I have already found is reasonable and necessary.

1. The basis for Ms. QGRY's request for the removal of the second archway is to allow more light primarily into the dining area with the additional benefit of more light into the kitchen area.
2. Ms. QGRY's evidence and subsequent submissions identified the benefits as being enhancing her ability to see food on her plate, identify cutlery, condiments, or glassware, diminish breakages and maintain visual orientation while seated at the dining table.[62]
3. The Respondent submitted that Mr McKeown in his evidence had agreed with the proposition that the removal of the second archway was not necessary as the other suggested modifications would result in Ms. QGRY being able to be safe, independent and efficient in the kitchen.[63]
4. It also noted that Ms. QGRY had also conceded that the removal of the second archway was not critical.
5. I am not convinced that these concessions properly address the primary basis of Ms. QGRY's request for the removal of this archway, which was to allow greater natural light into the dining area and allow her to better function in this living space. The basis for the Respondent's argument is that the removal of the second archway would provide little additional benefit in the kitchen area.
6. I also note that the amount quoted for its removal ($1,650 + GST) is quite modest.
7. I therefore consider that this requested support complies with section 34(1)(c).
8. I will therefore approve this requested support.

1. Ms QGRY asserts that having the contrast painting scheme in her home will serve to:
   • Improve the visibility of doorways, thresholds and transitions between surfaces.
   • Reduce the risk of injury from collisions or misjudging spatial boundaries.
   • Enhance her independent and safe navigation through her own home.
2. The Respondent for its part submits that:
   • There is evidence that improving the lighting in the Applicant's home, combined with the dark gold paint may be sufficient.
   • The Applicant's evidence is she does not have contrast painting throughout her Gold Coast home but is able to navigate due to the superior artificial light.
   • Mr Stankoski stated that improved lighting would 'mitigate the need for contrast between the - on the architrave.' (T 141 (35 - 47). Mr Stankoski considered the dark gold paint could be appropriate with proper lighting (T 134 (8 - 13)). Mr McKeown also agreed that it was possible this could be sufficient.
   • The Tribunal may have regard to Mr McKeown's evidence in his post hearing letter dated 19 September 2024 that black and white together will provide the Applicant the maximum benefit and the Applicant's condition will deteriorate such that the greater contrast will eventually be required.
   • However, there is no evidence as to how rapidly the Applicant's vision will decline. It is unknown if she will be in this property when that decline occurs. The decline could be so rapid that using black paint for contrast makes no difference. On the present evidence, the additional lighting is sufficient.
3. My assessment of the evidence is that the respective experts were somewhat at odds as to what would best address Ms. QGRY's current and future needs arising out of her current and future level of vision impairment. They also appear somewhat equivocal in their opinions.
4. In addition, there is a degree of inherent uncertainty as to the rate and speed of the deterioration in Ms. QGRY's vision.
5. Overall, I consider that having a combination of the requested additional lighting as well as the proposed contrast painting would be the optimal solution.
6. I therefore consider that this requested support complies with section 34(1)(c).
7. I will therefore approve this requested support.

1. Ms QGRY contends that she needs to have a concrete pathway installed so she can safely access the clothesline in her backyard as well as the storage shed which she accesses on a regular basis.
2. She currently is unable to do this as the ground is uneven in the yard and she is at risk of falls.
3. She is therefore reliant on others in carrying items such as a clothesbasket or items to and from the shed.
4. The Agency conceded that having a back concrete path was likely to benefit Ms. QGRY in and that it was disability related. It provides her the freedom to access the shed at a time of her choosing. The Respondent further acknowledged the benefit to her as she could make choices as to which seasonal items (e.g. Christmas decorations) she wishes to bring inside for decoration.
5. The Respondent however did not accept that she needs to access the shed on a weekly basis and that these benefits were not sufficient to satisfy section 34(1)(c).
6. I have already made findings that the back path is a NDIS support as it comes within Item 22 of Schedule 1 of the Transitional Rules.
7. The Respondent's position is that the construction of a rear pathway is not required as it was not necessary as Ms. QGRY can already mobilise in her own backyard albeit without carrying any items, and that having a clothes rack for drying clothes at the rear of the house and Ms. QGRY utilising her support works to remove or return items from her backyard shed would be a lower cost alternative.
8. In her reply, Ms. QGRY made the following observations:
   • The requested support is not for her convenience and was recommended to address the identified safety risks arising out of her navigating the backyard with its uneven terrain.
   • The suggested alternatives present their own risks and are only short-term in nature and potential benefit. The proposals also ignore the benefits of the proposed support to her autonomy and well-being. Nor should she be placed in a position of risking her safety by navigating this uneven ground or become reliant upon her support workers to access her shed.
9. I do not consider the alternative proposals made by the Respondent are realistic and if followed, will ensure Ms. QGRY's reliance upon her support workers and others. I am satisfied that the construction of a rear yard pathway will ensure her safety and increase her independence.
10. I therefore consider that this requested support complies with section 34(1)(c).
11. I will therefore approve this requested support.

1. The Tribunal is satisfied that all the seven requirements in ss 34(1)(aa)-(f) have been met with respect to the following requested supports:
   1. Kitchen modifications as proposed by the Scope of Work for Kitchen Modifications (AH 804).
   2. removal of archways 1 and 2 in kitchen dining room areas.
   3. removal of existing carpet in kitchen/dining area and replacement with vinyl flooring.
   4. high contrast painting of the architraves and skirting boards in the Participant's home.
   5. replacement of existing downlights in kitchen area with 7 LED lights.
   6. purchase and installation of a NEFF N 90 induction cooktop.
   7. replacement of the Participant's existing driveway.
   8. construction of a concrete pathway in the Participant's backyard.

1. The Tribunal sets aside the decision under review. The Tribunal remits this matter to the Respondent for reconsideration with a direction stating that the following supports are to be approved in the Applicant's NDIS plan:

1. Kitchen modifications as proposed by the Scope of Work for Kitchen Modifications (AH 804).

1. removal of archways 1 and 2 in kitchen dining room areas. 2. removal of existing carpet in kitchen/dining area and replace with vinyl flooring. 3. high contrast painting of the architraves and skirting boards in the Participant's home. 4. replacement of existing downlights in kitchen area with 7 LED lights. 5. purchase and installation of a NEFF N 90 induction cooktop. 6. replacement of the Participant's existing driveway. 7. construction of a concrete pathway in the Participant's backyard.

[40] National Disability Insurance Scheme Act 2013 (Cth), subsection 4(1).

[41] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; Madelaine and National Disability Insurance Agency [2019] AATA 4025.

[42] National Disability Insurance Agency, 'Operational Guidelines: Overview of the NDIS Operational Guideline'

[43] National Disability Insurance Agency, 'Including Specific Types of Support in Plans Operational Guideline - Home modifications'

[45] Respondent's Final Submission 7 paragraph 36

[49] NDIS Home Modification Guideline pp3-4

[63] Respondent's October submission para 59