2. The SOPS incorporated into the Applicant's current Plan has a total budget (expressed on an annual basis) of $1,455,123.93 for funded supports in respect of the period 9 January 2026 to 8 January 2027. This budget is divided into seven categories. In the "Core Flexible" supports category a budget of $1,372,742.27 is allowed for assistance with daily life, assistance with social, economic and community participation, and transport, and $5,596.16 is allowed for consumables, being continence and wound care aids, and low-cost assistive technology. In the "Choice and Control" supports category a budget of $1,253.40 is allowed for the engagement of a Registered Plan Manager to manage the plan. In the "Assistive Technology Maintenance, Repair and Rental" supports category a budget of $4,584.00 is allowed for the purchase of a wheeled, tilt-in-space shower commode ('Wheeled Mobility Major'). In the "Behaviour Support" category a budget of $27,958.80 is allowed for 90 hours per year of specialist behaviour intervention support, and 30 hours for the development of a behaviour management plan and training in behaviour management strategies. In the "Improved Daily Living Skills" supports category a budget of $38,389.70 is allowed in respect of therapy supports, being 25 hours a year of speech pathology, 53 hours a year of psychology, 52 hours a year of physiotherapy, six hours a year of podiatry, 50 hours a year of occupational therapy, 110 hours a year of disability related health supports from a registered nurse, and 3 hours a year of health supports from a Clinical Nurse Consultant. In the "Support Coordination and Psychosocial Recovery Coaches" supports category, a budget of $8,411.76 is allowed for 84 hours of Level 2 Support Coordination. In the "Recurring Transport" support category a budget of $1,784.00 is allowed.

1. The Tribunal's role in conducting this review has been to reach its own conclusion as to whether the delegate's decision to refuse to approve the requested supports for inclusion in the Applicant's SOPS (as modified by subsequent decisions during the proceedings) is the correct or preferable decision.[4] That has involved the independent re-assessment of the evidence in relation to these supports that was extant prior to the hearing as well as the assessment of the additional documentary and witness evidence that was before the Tribunal at the time of the hearing.[5]

1. Section 34(1) of the NDIS Act provides, relevantly, that for the purposes of specifying the reasonable and necessary supports that will be funded in a SOPS, the CEO must be "satisfied" of each of the matters set out in that section in relation to the funding of each such support. In this independent review, the Tribunal must also be so satisfied. This is a state of positive satisfaction or relative certainty which must be attained in relation to each criterion specifically.[6] Therefore, while neither the Applicant nor the Agency bear any formal onus of proof, the Applicant does bear the practical onus of placing before the Tribunal, or pointing to material before the Tribunal, that can persuade it that the support in dispute is reasonable and necessary.[7]

1. The following documentary material is before me:
   1. The documents filed by the CEO in accordance with the obligations imposed by s 37 and s 38AA of the AAT Act (T-Documents);[8]
   2. Joint Tender Bundle (Volumes 1 to 4) prepared by the CEO in consultation with the Applicant, filed on 31 January 2025 and revised 9 April 2025. I note that this included:
      1. The CEO's Statement of Facts, Issues and Contentions, dated 22 November 2024;
      2. The Applicant's Statement of Facts, Issues and Contentions, dated 20 December 2024;
      3. The Applicant's statement of lived experience dated September 2024 (Tab D37); further statement of lived experience (undated Tab D49); and updated statement of lived experience (undated, Tab D69);
   3. Nicolson, CM Edwards MJ, Carson AJ, et al, "Occupational therapy consensus recommendations for functional neurological disorder", J Neurol Neurosurg Psychiatry 2020; 91; 1037 -1045;
   4. CEO's Closing Submissions filed on 6 June 2025;
   5. Applicant's closing submissions, filed on 10 June 2025;
   6. The Participant Plan dated 6 November 2025, as varied on 19 November 2025;
   7. The Participant Plan dated 9 January 2026; and
   8. The Participant Plan dated 19 January 2026.
2. The principal hearing was conducted over 8 days, being 3 to 5 February 2025, 9 to 11 and 14 April 2025, 7 May 2025 and 11 June 2025 (on the papers). The hearing was resumed on 28 November 2025 and 3 February 2026 to consider issues arising from the unanticipated approval of new participant plans for the Applicant in November 2025 and January 2026.
3. The Applicant gave oral evidence in her own cause under affirmation. She also called as witnesses Ms Lihn Dao, Support Coordinator, Ms Carena Khoo, Music Therapist, Dr Katherine Gill, Occupational Therapist, Ms Tess de Caux, Occupational Therapist, Ms Sin You, Occupational Therapist, Ms Rachel Johnstone, Physiotherapist, Ms Katie Davies, Physiotherapist and managing director of Neurological Rehabilitation Group, Ms Jojo Tang, Occupational Therapist, and Ms Kerrie Jacobs, art support worker. Each of these witnesses gave evidence under affirmation. The CEO called as a witness Ms Alicja Ploszaj, Occupational Therapist, who he had commissioned as an independent expert. Ms Ploszaj gave evidence under oath.

1. At a Directions Hearing I conducted in this proceeding on 11 October 2024 I directed the Applicant to give to the Tribunal and the CEO a schedule of requested supports in issue, which identified with precision the requested support, and where relevant, its frequency, intensity and duration. Where the Applicant was requesting an increase to an existing support, I directed that she identify the level to which the existing support was funded and the increased amount sought. I noted that upon the filing of this schedule I intended to make an order pursuant to s 53 of the ART Act determining the scope of this review by reference to that schedule.
2. In compliance with this direction, on 25 October 2025 the Applicant filed a schedule of supports in issue in this review. On 15 November 2025 I made an order pursuant to s 53 limiting the scope of this review to those supports contained in this schedule. The requested supports in issue at that time were:

(a) two additional hours of podiatry in a 12-month period, up from the approved six hours to a total of eight hours, to enable one one-hour podiatry treatment approximately every six weeks; > > (b) 12 additional hours of continence nursing support, up from the approved 4.3 hours to a total of 16.3 hours, to enable one two-hour consultation approximately every six weeks; > > (c) An additional 132 hours of occupational therapy support, up from the approved 50 hours to a total of 182 hours, to enable the following (also including therapist travel time, team meeting participation and report writing): > > > (i) 68 hours of mental health specialist occupational therapy support; > > > > (ii) 74 hours of functional neurological disorder specialist occupational therapy support; and > > > > (iii) 40 hours of equipment and home modification specialist occupational therapy support; > > (d) 90 hours of exercise physiology support, to enable weekly sessions, plus therapist travel, team meeting participation and report writing; > > (e) 126 additional hours of physiotherapy support, up from the approved 52 hours to a total of 178 hours, to enable twice weekly physiotherapy sessions plus therapist travel; > > (f) 63.5 hours of music therapy to enable fortnightly one-hour sessions plus resource development, progress note writing, and team meeting participation; > > (g) 62 hours of psychology support; > > (h) 53 hours of neuropsychology support; > > (i) 45 hours of speech pathology support up from the approved 20 hours, to enable 3-weekly reviews, quarterly meetings, training and education for carers, outcome measures development and review, and report writing; > > (j) 34.5 hours of myotherapy support; > > (k) Support coordination comprised of: > > (i) six additional hours of Level 2 support coordination, up from the approved 84 hours, > > (ii) 90 hours of Level 3 support coordination, > > (l) Funding of $16,651.00 for eight weeks Medium-Term Accommodation, inclusive of a refundable bond, to be utilised while home modifications are undertaken; > > (m) 208 hours of support to access social and recreational activities at the standard weekend daytime rate to enable the engagement of a mental health support worker four hours per week; > > (n) 112 hours of support to access social and recreational activities at the high-intensity weekday daytime rate, to enable four hours fortnightly art activity sessions, plus report writing and art support worker participation in team meetings; > > (o) Level 3 transport funding of $3,456.00, up from Level 1 transport funding; > > (p) An additional $6,948.70 for consumables, being continence products, up from $1,896.16; > > (q) Funding for a Sleep Apnoea (CPAP) machine, subject to quotation being provided; > > (r) Funding of $5,383.64 for a shower commode; and > > (s) Funding of $55,000.00 to $59,000.00 for bathroom modifications.

3. At the hearing outset, the Applicant withdrew her request for the supports identified at sub- paragraphs 20 (b) (continence nursing support), (h) (neuropsychology support), (j) (myotherapy support), (p) (continence product consumables) and (q) (CPAP machine). These requests are therefore not considered further. Additionally, as I have already stated, during the hearing the parties reached a partial agreement in settlement of the dispute. That agreement related to the requested supports identified at subparagraphs 20 (a) (podiatry), (g) (psychology), and (i) (speech pathology/therapy). Those supports are now included in the current operative SOPS and will therefore not be further considered. Also, as I have already noted, the support identified at subparagraph 20 (h) was funded in the SOPS approved on 6 November 2025, and the CEO has not sought to claw that funding back in the subsequent plan decisions. I will therefore not consider that support any further.
4. What this leaves for determination is whether the requested supports identified at sub- paragraphs (c) to (f), (k) to (o) and (s) are reasonable and necessary supports for the Applicant that ought to be approved for incorporation into her SOPS. To put the issue beyond doubt the Applicant also seeks the continuation of her existing approved supports except to the extent that they are replaced by the enhancements sought above. I vary the s 53 order I made on 15 November 2024 accordingly.

1. The NDIS Act is founded upon an explicit values base which is found in its objects (s 3), general principles (s 4), general principles guiding actions (s 5), and with respect to participants and their plans, in more specific principles contained in ss 17A and 31. It is unnecessary for present purposes to set out these value statements in detail. It is sufficient to note that the policy of the Act places significant emphasis on participant choice and control in the selection of their supports, and upon the individualisation of supports.[9] The words and phrases that encapsulate these values are to be understood as meaning what they say.[10] These principles, at least in so far as they are expressed in s 4, are more than aspirational.[11] It is the intention of Parliament that persons making decisions under the NDIS Act give effect to this policy as far as practicable.[12]
2. In giving effect to the objects of the Act, regard must be had to the need to ensure the financial sustainability of the NDIS: s 3(3)(b). It is also a general principle that, relevantly, the CEO and any other person performing functions or exercising powers under the NDIS Act is to have regard to the need to ensure the financial sustainability of the NDIS: s 4(17). However, as I have opined in LNXV by his parent representative LNXV(PR),[13] at a level of generality, the legislative assumption underpinning the operation of Part 2 of Chapter 3 of the NDIS Act is that the approval of funding limited to what is reasonable and necessary to support a participant is the mechanism by which the NDIS will be financially sustainable. The Tribunal does not have jurisdiction at large to engage in any other analysis.[14]
3. Section 33 of the NDIS Act sets out the matters that must be included in a NDIS Participant Plan.
4. Pursuant to s 33(1), the Plan must include the Participant's Statement of Goals and Aspirations.
5. Pursuant to s 33(2), the Plan must include a SOPS, prepared with the participant and approved by the CEO, that specifies, relevantly to this case, (b) the reasonable and necessary supports (if any) that will be funded under the NDIS.
6. Sub-section 33(5) of the Act sets out those matters to which the CEO must have regard in deciding whether to approve a SOPS under ss 33(2). It provides:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

...

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

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

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

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

(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term...;

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

(i) the comparative cost of purchasing or leasing the equipment or modifications; and

(ii) whether there are any expected changes in technology or the participant's circumstances in the short term that would make it inappropriate to fund the equipment or modifications;

(e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;

(f) whether the support will increase the participant's independence and reduce the participant's need for other kinds of supports ...;

Effective and beneficial and current good practice

3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:

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

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

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

3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.

...

General criteria for supports

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

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

...

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

...

1. Additionally, the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Rules 2024 (Cth) (the NDIS Supports Transitional Rules) and the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth) (the Miscellaneous Provisions Rules) are relevant in determining the paragraph 34(1)(f) consideration.

1. The Applicant is 43 years old. She lives in a three-bedroom house in a suburb of Melbourne which she owns. She is estranged from her brother and father but maintains some telephone and personal contact with her mother. She has a sister who lives overseas with whom she has had some recent contact. She has two friends with whom she has semi-regular contact.
2. The Applicant successfully completed secondary and tertiary education, obtaining a Bachelor of Arts in Early Childhood Studies. Prior to 2020 the Applicant was a kindergarten teacher and director as well as a Girl Guide leader. Since 2020 she has been unable to work, and apart from her NDIS Supports, relies for her subsistence on a Disability Support Pension. She hopes to be able to return to paid or volunteer work in the future in the field of disability peer support or advocacy.
3. The Applicant lives with several health conditions which have been diagnosed at various times to be, relevantly, treatment resistant schizoaffective disorder or bipolar affective disorder, generalised anxiety disorder or social anxiety and panic disorder, complex post-traumatic stress disorder (cPTSD), cluster B personality disorder or borderline personality disorder (BPD), major depression, sensory processing disorder, and functional neurological disorder (FND). She also lives with asthma, migraines, hypertension, type 2 diabetes, polycystic ovarian syndrome and obstructive sleep apnoea.
4. The Applicant became a participant of the NDIS in August 2018. At that time, she was assessed as meeting the criteria for access to the NDIS based on impairments to which a psychosocial disability is attributable. In November 2021, in the context of the reassessment of her support needs, additional supports were approved for incorporation into her SOPS in relation to support needs that arise from FND.
5. The Applicant's experience of impairments derivative of FND is summarised in her SOFIC, filed 20 December 2024 at [18] to [22] (footnotes omitted):

1. [The Applicant] describes the experience of her seizures in her Statement of Lived Experience dated September 2024:

In my seizures my eyes close and I become fully paralysed. I can fall if I am not sitting or lying down safely. In short seizures my eyes generally open within 5-10 minutes then after about 5 more minutes my body moves. Sometimes my legs stay paralysed until the next seizure maybe 30 minutes later or for several hours.

6. On average [the Applicant] currently has between 15 and 30 seizures a day, many of which result in her being unconscious on the floor. They are unpredictable and can happen anywhere and at any time. During these episodes, [the Applicant] can still hear and feel touch but is unable to speak or move. Following a seizure, [the Applicant] is often paralysed and loses consciousness. Depending on the seizure, the time it takes [her] to recover varies from minutes to hours. Her support workers are required to massage her legs after seizures in an attempt to 'awaken' her motor function and the messaging between her brain and body.
7. The frequency and duration of [the Applicant's] seizures significantly affects her quality of life. She is unable to independently engage in activities of interest, hobbies, work or community access.
8. [The Applicant's] mobility has dramatically declined in the context of her seizures and the de-conditioning that has resulted from her reduced capacity for independent movement. She currently mobilises only in her wheelchair, attempts to walk are made only while with her physiotherapist or exercise physiologist, wearing a helmet and using a walking frame. She has reduced activity endurance, weakness and fatigue consequent to the seizures, further limiting her ability to participate in daily tasks, and also resulting in falls, particularly during transfers. She also experiences foot dystonia, a neurological movement disorder that involves involuntary muscle contractions in the foot, causing abnormal or painful repetitive movements, as well as severe balance and coordination issues.
9. [The Applicant] has extreme sensory processing challenges and is intolerant to touch, sound and light. Her communication has become more difficult with the onset of a functional aphonia likely related to her FND. She has been unable to speak above a whisper since May 2024...
10. The Applicant's experience of her impairments to which a psychosocial disability is attributable is described in her SOFIC at [22] to [26] as follows:
    1. ... Her communication skills are also compromised by her cPTSD symptoms, which can cause her to misinterpret cues and become overwhelmed and anxious, and her BPD, which affects her ability to effectively communicate her needs.
    2. [The Applicant] also has ongoing auditory, tactile and visual hallucinations and paranoia, including command hallucinations to harm herself and others around her. She struggles to regulate her emotions and experiences ongoing feelings of hopelessness and suicidality. She also has low mood and feelings of depersonalisation, derealisation, dissociation, confusion and disorientation. She lives in fear of 'the controller', who she believes controls her life and makes bad things happen. All treatment options for her psychiatric diagnoses have been exhausted.
    3. Stress significantly exacerbates [the Applicant's] condition. Dr Katherine Gill [the Applicant's treating specialist OT, writes that, '[d]ue to the complex intersection of psychosocial and neurological impairments any emotionally stressful interaction will flare and exacerbate [the Applicant's] neurological impairments and seizures due to problems in the connectivity of the brain associated with FND.
    4. [The Applicant] also has functional cognitive issues including memory loss. Her low levels of distress tolerance, high levels of anxiety and low mood and motivation (related to her cPTSD and BPD) mean that she struggles to concentrate and has difficult learning new things.
    5. [The Applicant] experiences severe social anxiety and is extremely socially isolated ...

1. The outcome of this review turns substantially, but not exclusively, on what is the most efficacious response, from an objective, evidence-based, perspective, to the Applicant's impairments that are derivative of FND in terms of the maintenance and development of her function.
2. The Applicant relies upon the following description of FND provided by FND Australia Support Services Inc,[17] which is a registered charity. This is an organisation founded and operated by the Applicant's specialist FND Occupational Therapist and an expert witness for the Applicant, Dr Katherine Gill. Although aspects of Dr Gill's evidence were contested, I do not understand this description of FND to be controversial.

Functional Neurological Disorder (FND) is a condition that results in neurological symptoms such as functional seizures, paralysis, gait disorder, sensory issues, involuntary movements, problems with speech and swallowing, and bowel and bladder issues. Pain and chronic fatigue often co-exist with these symptoms. > > FND is as disabling and distressing as similar neurological diseases such as Epilepsy, Multiple Sclerosis, Parkinson and Stroke. For many people FND is a lifelong condition that they will have to manage long term. > > Functional seizures unlike epilepsy are not due to abnormal electrical activity in the brain. Medications used to treat epilepsy may be unhelpful for people with FND, unless the person also has epilepsy. FND results from a problem with the functioning of the nervous system. Functional seizures may present similar to epileptic seizures, although they are generally of longer duration. While functional seizures can look like epileptic seizures the attacks themselves are not harmful for the brain. People may experience both epilepsy and functional seizures. The treatment and management plans are different for epilepsy and functional seizures. > > Functional seizures are known by many different terms including dissociative attacks, disassociated seizures, non-epileptic seizures, non-epileptic attack disorder, function non-epileptic seizures and FND attacks.

3. The CEO's expert, Ms Alicja Ploszaj, referenced in her report, and in her oral evidence, a multi-authored paper titled Occupational therapy consensus recommendations for functional neurological disorder,[18] (Nicholson et al) as distilling the current consensus of clinical opinion as to appropriate treatment and care of persons with FND. The implications of the findings and recommendations contained in this paper for the supports in dispute became a focus of the oral examination of Ms Ploszaj and Dr Gill during the hearing. It will therefore be helpful for the subsequent discussion to extract from that paper in some detail here (references omitted):

INTRODUCTION > > ... > > FND is characterised by symptoms of altered voluntary motor and sensory function with clinical findings providing evidence of incompatibility between the symptoms and recognised neurological or medical conditions. Symptoms are diverse and can include weakness, movement disorders (tremor, jerks and dystonia), sensory symptoms, cognitive deficits and seizure-like events (commonly known as dissociative seizures or non-epileptic seizures). Fatigue and persistent pain are also commonly experienced as part of the disorder. Symptoms can present acutely and resolve quickly or can be long lasting. Regardless of duration, those affected frequently experience high levels of distress, disability, unemployment, social care utilisation and reduced quality of life. The stigma associated with FND contributes to the burden of the diagnosis. > > ... > > In summary, [Occupational Therapy (OT)] is recognised as part of multidisciplinary intervention for FND; however there is a limited evidence base, and the role of OT within the [Multidisciplinary Team (MDT)] is not well defined. With this paper, we aim to develop a broad set of consensus recommendations to guide OT practice for people with FND across the range of clinical settings (hospital, rehabilitation ward and community) and time following symptom onset (acute to chronic). These recommendations come from our experience working with people with FND aged 16 years and over; however, recommendations may have transferability to adolescent and paediatric populations. This work aims to complement existing clinical recommendations for FND and to form a starting point from which to develop evidence-based intervention. > > ... > > METHODS > > ... > > Conceptualisation of FND/aetiological model > > The group's consensus on the definition and conceptual understanding of FND was as follows: FND is a diagnosis that exists at the interface between neurology and psychiatry and is a genuine cause of disability due to motor and non-motor symptoms ... The aetiology is best understood within a biopsychosocial framework, considering predisposing, precipitating and perpetuating factors, each of which can include biological, psychological and/or social events ... > > The motor symptoms of FND can be considered, at one level, as abnormal patterns of movement, that are "driven" by involuntary self-focused attention. Thus when a person's attention is redirected away from their body (distraction), abnormal movement reduces or disappears. Non-motor symptoms, including sensory changes, are also likely to be similarly affected by unconscious, self-focused attention. > > People with FND commonly experience other health problems; this can include psychiatric comorbidity, coexisting neurological disease and other functional symptoms. Common coexisting symptoms such as chronic pain and fatigue are often important determinants of disability and quality of life. > > ... > > OT treatment > > OT aims to help people overcome the effects of disability through practical support to improve performance and satisfaction in activities of daily living. The consensus group identified that core OT interventions for FND include physical rehabilitation through guided activity practice, practical management of pain and fatigue, support to address mental health problems and support to reduce dependency and optimise independence. > > The group suggests that supporting self-management of symptoms is particularly important in FND and should be considered through all aspects of OT. The person is supported to take ownership of their rehabilitation and develop an internal locus of control, rather than placing control in the hands of clinicians and family members. This is achieved through understanding the diagnosis, understanding the rationale for interventions and graded goal setting. Interactive workbooks or a therapy journal can be a useful tool to support self-management. > > ... > > Aids and adaptations > > The use of aids and equipment is generally thought to be unhelpful to the rehabilitation process in FND, potentially preventing future improvement by interrupting normal automatic movement patterns and causing maladaptive ways of functioning. It is important to recognise that aids and equipment can cause new secondary problems such as joint pain (e.g. shoulder pain from walking with crutches) and deconditioning of muscles. The group endorsed these concerns but recognised that there are times when providing adaptive equipment is appropriate and/or necessary. Each case should be considered individually. It can be helpful to consider the person's journey, differentiating the acute phase where improvement is more likely, from situations where people have treatment resistant symptoms. In the acute phase, it is advisable to avoid aids and environmental adaptations. If aids are necessary, for example, to enable a safe discharge from hospital, equipment should be: (1) considered as a short-term solution; (2) issues with a minimalist approach; and (3) a plan to progress from its use. It is important to assess the person with new equipment and teach them how to use it correctly to minimise maladaptive movement patterns. Follow-up appointments should be available to monitor equipment use and support plans to progress towards independence. > > For people who have completed rehabilitation but experience ongoing disability, it is reasonable and appropriate to consider aids and environmental adaptations. Equipment should maximise safety, increase independence, improve community access and have an overall positive impact on quality of life... > > ... > > Symptom-specific treatment suggestions > > ... > > Dissociative (non-epileptic seizures) (DSs) > > DSs are a specific presentation of FND characterised by temporary episodes of impaired awareness. The episodes may resemble epilepsy or syncope, but they are not associated with abnormal electroencephalography changes. DSs are a common reason for frequent attendance at accident and emergency. Acute hospital admissions can be highly distressing and are usually unnecessary for DS. The main evidence-based treatment for DS involves psychological therapy, delivered by specially trained clinicians. > > Here we provide ways in which core OT skills can be used to help people with problems associated with DS. ... > > A good place to start treatment is to ask the person how they wish to be supported if they have a DS during a therapy session. They may have devised a plan with other clinicians that you can follow. If not, this could be an initial focus of OT intervention. A DS plan can help put clinicians at ease and make the person feel safer, which may prevent escalation and reduce duration of the episode. Important elements are to help the person to a safe space where they are unlikely to injure themselves. Let them know they are safe but avoid constant reassurance and physical contact or restraint. Advising others to behave as they would if someone is having a panic attack can be helpful. People can sometimes hear and understand what you say during a DS, even if they are unable to respond. > > Ask about triggers and warning signs of an imminent episode. It is common for people to report having no memory of events prior to and during a DS; however, after some discussion, many start to recognise patterns. If a warning sign is experienced prior to a DS, taught strategies can be used to try and avert an event at this point. A group of strategies that can be helpful are Sensory Grounding Techniques, which aim to keep people present in the moment and focus attention to prevent dissociation. Some examples include noticing the detail in the environment (e.g. colours textures and sounds); cognitive distractions (e.g. word games and counting backwards); and sensory-based distractors (eg. Flicking a rubber band on the wrist and feeling a textured item). > > Common problems associated with FND > > ... > > Risk Management > > People with FND often disengage from usual activities due to a perceived risk to their personal safety (e.g. fear of having a DS on leaving the house). It is an OTs' role to help manage risk and increase independence by enabling people to engage in activities through a process of supported risk taking. ... > > Disability Management > > Care > > OTs can provide advice on the need for carers to assist with activities of daily living and the extent of care required. If carers are needed, care that provides opportunity for the person to be actively involved in tasks (facilitatory) rather than having a task completed for them (passive care) should be encouraged. > > ... > > Housing > > Rehousing to an adapted property should be avoided when symptoms are presenting acutely and/or access to rehabilitation is available and wanted. Support with rehousing may be appropriate if a patient has chronic symptoms that have not responded to a rehabilitation approach. A person's housing situation may also be a trigger or maintaining factor to their symptoms or lack of occupational independence and therefore if no immediate changes can be affected, then rehousing may be considered. In such instances OTs may have a role in advocating for rehousing on behalf of the person. > > ... > > Concluding treatment > > ... > > There will be some people who do not gain benefit from rehabilitation and who remain symptomatic. If the person has had adequate access to specialist intervention for FND, then a focus on disability management may be appropriate. However, given the fluctuating nature of FND, it is important to consider that gains may still be possible in the future. Re-engaging with rehabilitation at a later date may be advantageous for some... > > ...

Status and progression of the Applicant's FND diagnosis

1. Having regard to the clinical consensus regarding the management of FND derivative impairment reflected in Nicholson et al, and the written and oral evidence of Dr Gill and Ms Ploszaj, it is necessary to obtain clarity about the diagnosis, treatment, progression and status of the Applicant's FND diagnosis.
2. Doing the best that I can on the evidence before me, I make the following findings in this regard:

(i) the Applicant was assessed as meeting the criteria for access to the NDIS on 29 August 2018 based on impairments to which a psychosocial disability is attributable. The Applicant did not have a FND diagnosis at that time;

(ii) in 2021 the Applicant was admitted to hospital for Encephalopathy which appears to have developed as a complication to the pharmacological treatment of her mental health conditions.[19] This was an extended admission of 7-9 months,[20] involving an acute admission, then an extended period of hospital-based rehabilitation;[21]

(iii) during the period of her 2021 rehabilitation admission the Applicant was diagnosed with FND.[22] It is now contended that the Applicant was displaying symptoms of FND for between 5 and 10 years prior to her diagnosis of that condition;[23]

(iv) on 26 November 2021, apparently in the context of discharge planning from her rehabilitation admission, the CEO approved additional NDIS supports for the Applicant that related to support needs associated with her FND diagnosis.[24] The details of this approval do not appear in either the T-Docs or evidence filed by the parties. However, I infer from other material in evidence that these supports primarily involved a time-limited increase in intensity of disability support worker assistance, which was renewed subject to different terms up to the decision under review;[25]

(v) since December 2022 the Applicant has been in dispute with the CEO as to the type and extent of supports she requires in relation to the impairments that are derivative of her FND diagnosis. She, and several of her support providers, contend that this dispute has led to a significant exacerbation of these impairments, both in terms of severity and frequency of their impact. For example, it is contended that prior to her discharge from medical rehabilitation she was experiencing 1 to 4 dissociative seizures per week, whereas now she experiences 20 to 30 dissociative seizures per day (or 475 to 635 per month);[26]

(vi) the Applicant has been hospitalised several times since being discharged from her medical rehabilitation admission. At least in some cases these have been characterised by Members of her support team as "social admissions" which have become necessary when her disability support provider has been unable to meet her support needs at home.[27] These admissions have been of short duration and have not involved any further period of post-acute rehabilitation. One possible reason for this that is suggested on the evidence is that the Applicant's FND symptoms are assessed as incapable of appropriate management on a mental health ward, and her acute psychiatric symptoms are assessed as incapable of appropriate management on a general medical ward;[28]

(vii) Somewhat surprisingly, despite the reported extreme exacerbation of the Applicant's FND symptoms it has not been contended by the CEO in this case that a medical response is required by either the mental health or general medical systems. That is, with one limited exception,[29] no part of the CEO's case involves a contention that the supports in issue do not relate to the Applicant's needs as these arise from an impairment in relation to which she meets the disability requirements, or that they are supports most appropriately provided by the mental or general health systems.

1. It is implicit in the CEO's decision of 26 November 2021 that NDIS Supports for FND were approved on the basis that the delegate of the CEO was satisfied that the impairments derivative of this condition were permanent, although there is no deliberative document in evidence which contains an express assessment to this effect. That is because the Supports for Participants Rules were in force at that time, and they provide, relevantly:

Schedule 1 Considerations relating to whether supports are most appropriately funded through the NDIS > > ... > > Health (excluding mental health) > > 7.4 The NDIS will be responsible for supports related to a person's ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment. > > 7.5 The NDIS will not be responsible for:

(a) the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions,

...

(c) funding time-limited, goal-oriented services and therapies:

(i) where the predominant purpose is treatment directly related to the person's health status; or

(ii) provided after a recent medical or surgical event, with the aim of improving the person's functional status, including rehabilitation or post-acute care; ...

1. For the reasons identified above, that position may be taken to be unchanged.
2. In my view that conclusion has implications for both the Applicant's and the CEO's case in this independent review, having regard to the clinical consensus reported in Nicholson et al which I have extracted above. Those implications are as follows:

(i) the Applicant's FND is in a post-acute, post medical rehabilitation, "treatment resistant" or chronic state in terms of its progression in which significant remission of underlying symptoms is unlikely. That is the case despite the exacerbation of these impairments since December 2022. Therefore, it is "reasonable and appropriate" to consider aids and environmental adaptations to, amongst other things "maximise safety", "increase independence", and "have an overall positive impact on quality of life."

(ii) nevertheless, the following intervention strategies constitute 'better' if not 'best practice:

• - (participant) goal focused, graded interventions,
• - self-management of symptoms, including through the development of an internal locus of control, and the development of strategies to avoid dissociative seizures,
• - distraction from involuntary self-focused attention,
• - (re)engagement with life activities via supported risk taking,
• - facilitative (or active) participation, rather than passive receipt of support,
• - avoidance of entrenching disability and creating dependence upon supports.

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

(a) Are the supports that remain in dispute NDIS Supports as defined? > > If the answer to this question is "no" then the support can no longer be considered for approval in the Applicant's SOPS because it cannot meet the requirement of s 34(1)(f).

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

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

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

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

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

Are the supports that remain in issue NDIS Supports

1. A support will either be, or not be, a NDIS Support by operation of s 10 of the NDIS Act and the NDIS Supports Transitional Rules.
2. I do not understand it to be in issue that the following requested supports are NDIS Supports as prescribed in Schedule 1 of the NDIS Supports Transitional Rules:
   • - Occupational therapy: it being a therapeutic support prescribed by item 34 of Schedule 1;
   • - Exercise physiology: it being prescribed by item 18 of Schedule 1;
   • - Physiotherapy: it being a therapeutic support prescribed by item 34 of Schedule 1;
   • - Support Coordination: it being prescribed by item 33 of Schedule 1;
   • - Medium-Term Accommodation: it being prescribed by item 1 of Schedule 1;
   • - Transport funding: it being prescribed by item 6 of Schedule 1; and
   • - Home modifications: it being prescribed by item 22 of Schedule 1.

1. What remains for consideration are the Applicant's requests for music therapy, art therapy/art activity support, and a mental health support worker.
2. Schedule 2 of the NDIS Supports Transitional Rules prescribes those supports that are generally not NDIS Supports. Item 9 of Schedule 2 prescribes 'Not evidenced based - alternative and complementary therapies'. Included in this prescription is "(f) sound therapy", but it is not contended,[30] and I do not find, that this prescription is intended to capture music therapy. There is no reference to art therapy in item 9 or elsewhere in Schedule 2. Neither music nor art therapy are therefore prescribed 'not NDIS Supports' by Schedule 2.
3. As I have sought to explain in FSWN,[31] both Schedule 2 and Schedule 1 have work to do in determining if a support is not a NDIS Support. That is because the support must not be excluded by Schedule 2 but must be included by Schedule 1.[32]
4. Item 34 of Schedule 1 includes as NDIS Supports "Therapeutic Supports", which are prescribed as follows:

1 Supports that are NDIS supports unless otherwise provided

Supports that provide evidence-based therapy to help participants improve or maintain their functional capacity in areas such as language and communication, personal care, mobility and movement, interpersonal interactions, functioning (including psychosocial functioning) and community living

This includes an assessment by allied health professionals for support planning and review as required.

1. In ZNVT[33] I was required to consider a request for music therapy in a context where the CEO contended that this support was not a NDIS Support. At the risk of hubris, I repeat what I concluded in that case (at [36] to [41] footnote omitted):

1. With respect to music therapy, Schedule 2 prescribes various therapies as not being a NDIS Support, including in items 9 and 10. Music therapy is not specifically referred to in Schedule 2. Consequently, whether it is a NDIS support is determined by reference to Schedule 1, and to Item 34 in that Schedule specifically. 2. Item 34 does not refer to therapeutic supports by speciality. Rather it requires the support to satisfy the following elements:

- provide evidence-based therapy > > - to help participants improve or maintain their functional capacity in areas such as language and communication, personal care, mobility and movement, interpersonal interactions, functioning (including psychosocial functioning) and community living, > > - with respect to participants or prospective participants generally. > > (my emphasis)

2. The NDIS Supports Transitional Rules do not define or elaborate upon what is meant by an 'evidence base'. However, the concept of 'evidence-based practice' in a clinical context is a relatively familiar one. It refers to a foundation of socio-scientific 'proof' of efficacy and consensus of expert opinion in relation to the efficacy of a treatment intervention. I note that Rules 3.2 and 3.3 of the Supports for Participants Rules deal, in part, with a similar concept where they require the CEO to consider if a support will be effective and beneficial by reference to available evidence of the effectiveness of the support for others in like circumstances, which may include 'published and refereed literature' and 'expert opinion'.
3. In my opinion the frame of reference for the Item 34 analysis is the efficacy of the support for the designated population groups at large. Unlike the enquiry undertaken under paragraph 34(1)(d) by reference to Rules 3.2 and 3.3 it is not concerned with whether the support will be effective and beneficial for the specific participant. Rather, the enquiry is concerned with the characteristics of the support only and whether it can satisfy the elements of Item 34 to be a NDIS Therapeutic support.
4. In closing submissions, it was put to me by counsel for the Applicant that I was wrong in that conclusion. That is because, it was submitted, Item 34 refers to "an" evidence base, which may be an evidence base in relation to the efficacy of music therapy for a single participant, such as the Applicant. In this respect I was referred to reports of a music therapist which provide summaries of outcomes from music therapy session conducted with the Applicant in 2019. It was submitted that those reports indicate developmental gains made by the Applicant in terms of purposeful hand and body movements, vocalisations, non-verbal communication, cognition and sensory and emotional regulation. For present purposes I accept that this evidence is to that effect.
5. However, I am not persuaded that Item 34 is concerned with the therapeutic benefit that a particular participant may assert in relation to a requested support, and any evidence particular to them that may support that claim. Rather, it is concerned with the evidence base for the therapy by reference to the NDIS participant and prospective participant population group. The Applicant's evidence is not irrelevant in this regard, but it falls far short of establishing the efficacy of music therapy on a population group basis. In this respect I note that there is no meta-analysis or evidence of peer reviewed single publications, or expert evidence, before me that provides an evidence base in relation to music therapy.
6. The Applicant in this case is essentially in the same position as the Applicant in ZNVT. She asserts in her own cause the therapeutic benefit she obtains from music therapy sessions and relies upon the evidence of a registered music therapist, Ms Careena Khoo, who opines that music therapy techniques such as lyric analysis, lyric substitution, and the creation of music videos have had a beneficial impact on the Applicant's psychosocial function.
7. A difference in this case is that the CEO does not directly challenge music therapy support on the basis that it is not a NDIS Support.[34] It is submitted by the CEO that because Ms Khoo has a Master of Music Therapy and a graduate diploma in education that the support she provides falls within Item 34 of Schedule 1. Rather the challenge to the approval of this support is made on the basis that it duplicates other support available to the Applicant (being psychology) contrary to Sub-rule 5.1(c) of the Supports for Participants Rules, does not meet the needs of the Applicant as these arise from an impairment in relation to which she meets the disability requirement as required by the paragraph 34(1)(aa) criterion, and does not represent value for money as required by the paragraph 34(1)(c) criterion.
8. In my respectful opinion it is not desirable that the CEO takes different positions as to whether music therapy is a NDIS Support in different cases, because this is apt to lead to arbitrary outcomes between participants. In this respect the general programmatic issue of whether music therapy is a NDIS Support should not be conflated with granular questions about whether the support is otherwise reasonable and necessary for a particular participant.
9. I may infer from the fact that Ms Khoo has a Master of Music Therapy that there is a body of socio-scientific knowledge that underpins that qualification. Ms Khoo also gave (population referenced) evidence as to the benefits of music therapy for patients in hospital settings, where she had extensive work experience. This evidence can be given some weight, but it is not sufficient to establish that music therapy satisfies the elements of Item 34, being an evidenced based therapy for participants or prospective participants of the NDIS on a population group basis.
10. Additionally, I note that the CEO's form of challenge to music therapy support under Sub-rule 5(1)(c) and the paragraphs 34(1)(aa) and (c) criteria, in substance, raises the efficacy of this support as a 'therapy' for the Applicant, as distinct from an enjoyable creative activity or 'hobby'. In this respect the CEO places primary reliance upon Ms Ploszaj's expert opinion as this is encapsulated in the following passage:

[The Applicant] greatly enjoys and appears to have a passion and talent for music. She will benefit from expanding her network by joining community-based music groups to develop relationships that she can sustain independently not requiring funding. This would then empower [the Applicant] through both her improved development of music, and also her self-esteem through the development of genuine friendships. Her OT may be able to support her with this goal as she will benefit from ongoing music hobbies.[35]

11. Given that this is the thrust of the CEO's case, it is difficult to see how he has reached the conclusion that this support could fall within the scope of Item 34 of Schedule 1.
12. For the foregoing reasons, I am not satisfied that this is an appropriate case in which to depart from the conclusion I reached about the request for music therapy in ZNVT. Neither party has established with sufficiently probative evidence in this case that music therapy is an evidence-based therapy for participants and prospective participants of the NDIS which has the therapeutic effects identified in Item 34 on a population group basis. That being the case I cannot be satisfied that it is a NDIS Support. The paragraph 34(1)(f) criteria therefore cannot be satisfied, and consequently, this requested support cannot be approved for inclusion in the Applicant's SOPS.
13. The Applicant faces a similar difficulty with respect to her request for funding for art therapy/support for artistic activities. In this respect I note that this request commenced life characterised as "art therapy" but was recharacterized during the pre-hearing period as support for "artistic activities" when it became apparent that the relevant practitioner, Ms Kerrie Jacobs, was not a registered Art Therapist. It thus came to be advanced by the Applicant not on the basis that it was a "capacity building" therapeutic support within the scope of Item 34 of Schedule 1, but as a "core support" within the scope of Item 27 of Schedule 1 to be added to her Supported Independent Living (SIL) package, subject to it being funded at a high intensity week-day, day-time rate on the basis that a more skilled or experienced support worker is required.[36]
14. I do not accept that this attempt at the recharacterization of this support is successful having regard to Ms Jacob's evidence. While she styles herself generally as a "Holistic Creative Arts Facilitator", she clearly conceptualises the support she provides in clinical therapy terms and not as a community, social, cultural or civic activity. This is apparent from the following extract from her report,[37] the elements of which she reiterated in her oral evidence:

[The Applicant] receives Art based therapies from myself once a fortnight in her home where I bring all materials and tools. > > Creative Art and Art Based Therapy are something that [the Applicant] enjoys and can do to assist with developing independence and autonomy in managing emotions during times of stress. I have many examples which I will outline below of where [the Applicant] is not managing and once we go through the exercises she is a different person. > > Continued therapeutic art is reasonable and necessary because it is a positive creative outlet for [the Applicant] to process aspects of her disabilities that affect her daily living. > > For example I gave [the Applicant] a Tree of life exercise which highlight the leaves of the tree of things she wishes to change or accept things she can't change, the roots of the tree where positive grounded traits and strengths of which we asked support workers to put in some strengths also. [The Applicant] painted the most beautiful tree and thoroughly enjoyed the exercise, she texted me later saying she had been depressed and unwell but this lifted her so much looking at all the positives, she also shared she had cried when she realised all the positive thoughts her supports had to say about her. > > I give [the Applicant] tools, techniques and support throughout the week and have continued to over following years to inspire [the Applicant] to use art as a creative outlet and to develop a sense of agency. > > ... > > Art gives [the Applicant] choice and control over how she manages her physical, mental and emotional wellbeing by engaging in meaningful activities. ... I was particularly impressed with how [the Applicant] has changed her thought process around perfectionism and anxiety around this, we have been working on "done not perfect" and accepting that things aren't perfect in life. > > Manipulating tools and devices also assists [the Applicant's] fine motor skills which have been affected by her FND in a way that no other therapy does so it is reasonable and necessary and not a duplication of supports. I have specialised equipment to help [the Applicant] fulfil this. > > ... > > My art program is also value for money as it does not cost as much as an Art Therapist but the same techniques are being used. ... > > The risks if [the Applicant] doesn't receive this treatment are ongoing ... > > (my emphasis)

15. This extract clearly illustrates that Ms Jacob conceptualises the support she provides the Applicant in therapeutic terms, as involving specialised equipment and techniques, both physical and cognitive, and as a form of treatment for the Applicant's impairments.
16. Item 27 of Schedule 1 is expressed in the following terms:

1 Supports that are NDIS supports unless otherwise provided

Participation in community, social and civic activities

Supports that assist a participant to take part in community, social, cultural and civic activities.

This includes the following:

(a) Supporting participants during relevant activities;

(b) Working with participants to develop their ability to partake in these activities.

1. In my opinion it is manifest that Item 27 prescribes participation supports that assist a participant to take part in activities:
   • - situated in the community (that is, in public), as distinct from in their own home (that is, in private);
   • - that involve socialisation with others not in a paid relationship with them, rather than only paid support worker(s);
   • - related to the experience of culture, being the shared beliefs, values, traditions, and behaviours of a social group;
   • - related to public affairs and incidents of citizenship.
2. The art therapy/support for artistic activities requested by the Applicant will take place in private in the Applicant's home, involves only paid support workers (Ms Jacobs and disability support workers) and is not related to public affairs or incidents of citizenship.
3. It may be accepted that painting, and art more generally, is a feature of most, if not all, cultures but the support in this case is characterised as a form of 'therapy' not cultural participation and enjoyment. In relation to this and in fairness, I should also note that Ms Jacob's makes the following point in her report, and reiterated this in her oral evidence:

[The Applicant] wishes to overcome her social anxiety and increase community participation, by building skills at home in private we can build confidence for her to then join art groups. (sic)

This potentially engages paragraph (b) of the Item 27 prescription, but even if this were to be accepted, there is no evidence that Ms Jacob's support incorporates any graded plan or strategy to transition or transfer support for art activities to a community or cultural location independent of her paid support.

1. I thus conclude that the requested art therapy/support for artistic activities cannot fall within the scope of Item 27 and could only be a NDIS Support if it satisfies the elements of Item 34 of Schedule 1. But in this respect, there is no material before me that can satisfy me that art therapy is an evidence-based therapy for NDIS participants and prospective participants which has the therapeutic effects identified in Item 34 of Schedule 1 on a population group basis. The fact that the proposed provider of this support, Ms Jacobs, is not a registered Art Therapist is only one factor that leads to that conclusion. It follows from this that this requested support cannot be approved for inclusion in the Applicant's SOPS because it cannot satisfy the paragraph 34(1)(f) criterion.
2. The Applicant requests funding for 208 hours of mental health support worker assistance a year (or 4 hours per week) at the standard week-end day-time rate.
3. This is additional to the 11,648 hours a year of 2:1 support for day-time assistance with daily living and participation in community, social and civic activities which is already approved in her SOPS. I also note that it is additional to the psychology, occupational therapy, and behaviour support that are approved as capacity building supports in her SOPS. It is also additional to the support she receives from a consultant psychiatrist and mental health case manager from the State mental health system.[38]
4. The Applicant contends that this requested support falls within the scope of Items 14 or 15 (or both) of Schedule 1 of the NDIS Supports Transitional Rules and is a NDIS Support on this basis. Those items are prescribed as follows:

1 Supports that are NDIS supports unless otherwise provided

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

This includes the following:

(a) Assistance with eating and drinking, dressing and toileting;

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

(e) moving and positioning;

(f) in-kind personal care in school.

Supports that provide training and development activities for participants or carers to increase a participant's ability to live as independently as possible (including as part of psychosocial recovery supports).

This includes increasing the participant's ability to independently undertake the following activities:

1. shopping;
2. meal preparation;
3. managing finances;
4. managing a participant's own personal care;
5. travel and use of public transport;
6. engage in social activities;
7. improve relationship and social skills.

1. If dealt with on the basis that this requested support falls within the scope of Item 14 and/or 15 of Schedule 1 it would result in a 3:1 intensity of such support 4 hours per week.
2. I have set out above the prescription of therapeutic supports in Item 34 of Schedule 1 of the NDIS Supports Transitional Rules. I note for present purposes that this prescription includes supports that provide evidence-based therapy to help participants to improve or maintain their psychosocial functioning.
3. Item 13 of Schedule 2 of the NDIS Supports Transitional Rules prescribes certain mental health supports, including, relevantly, "(d) supports that are related to mental health that are clinical in nature, including... continuing care and rehabilitation" as not being a NDIS Support. It therefore follows that if the Applicant's request for mental health support falls within this prescription, it will not be a NDIS Support capable of being incorporated into her SOPS.
4. The originator of the proposal for this support is the Applicant's former Mental Health Occupational Therapist, Ms Tess de Caux (formerly Feldman). In her progress report to the Agency dated 29 August 2024 Ms de Caux describes this support in the following terms:[39]

Support workers (Mental Health specific) 4 hours per week

• To support [the Applicant] to implement strategies supporting her to engage in home and community based tasks of daily life while safely managing her psychosocial disability (in collaboration with both Mental Health OT and psychologist).
• These support workers support wellbeing, and offer [the Applicant] opportunities to engage in elements of daily life most impacted by features such as anxiety or other psychosocial factors, whereas other support workers, see above, have a greater focus on personal care and mobility based supports (while also being aware of mental health related risk factors and able to act to support [the Applicant] with this as needed).

1. In her oral evidence Ms de Caux described this support as being an adjunct and a cheaper option to additional mental health occupational therapy support. She reported being generally aware of situations where a person received assistance from both a mental health occupational therapist and a mental health support worker with apparently good effect but had not had personal experience of working in this way. She opined that few support workers had this specialisation and that they would be hard to identify and recruit.
2. In her 'Statement of Lived Experience...', dated September 2024,[40] under the heading "supports I need" the Applicant describes this support as follows:

I also need a mental health support worker 6 hours per week to provide me with mental health specific care for my psychosocial disability.

3. In her oral evidence the Applicant described the benefits she obtained from persons she identified as mental health support workers during a period of in-patient rehabilitation in a health facility. She indicated that they provided comfort (which I understood as emotional support and counselling) during periods that she was experiencing suicidal ideation and undergoing electroconvulsive therapy. She told the Tribunal that the support workers she has engaged since that time have been unable to provide her with equivalent support as they do not have sufficient training in mental health. She also gave evidence of a high turnover in support workers due to their inability to manage her complex mental health care needs. This evidence was corroborated by the Applicant's Support Coordinator, Ms Linh Dao, who told the Tribunal in her oral evidence that several support workers have withdrawn from working with the Applicant because they have been unable to manage her complex mental health.
4. As a preface to consideration of whether this requested support is a NDIS Support, I note that there are logical and conceptual difficulties for the Applicant in, on the one-hand, arguing that she requires a mental health support worker with specialised skills related to her mental health conditions, and on the other, arguing that this support falls with the general prescriptions of Items 14 and 15 of Schedule 1, and not item 34 of Schedule 1 or Item 13(d) of Schedule 2. In this respect, to reiterate, the Applicant is already funded for 2:1 general disability support worker assistance 16 hours each day for Item 14 and 27 activities. Nothing prevents her from using this funding to recruit support workers experienced in supporting participants with mental health conditions. What she seeks to obtain by this request is something additional and different to what she currently obtains from her current core supports funding.[41]
5. As I have already said, to be a NDIS Support, the support must not be excluded by Schedule 2, and it must be included by Schedule 1 of the NDIS Supports Transitional Rules.
6. The difficulty in grappling with this requested support on this basis is its lack of specificity. It is a generalised description of a purported speciality that on the evidence before me is not based on any specific formal qualification or further education and experience on top of a general qualification or experience. In her evidence, Ms de Caux raised doubts about the existence, or at least the reasonable availability, of a mental health support worker as described.
7. Nor are the specific functions of this role satisfactorily elucidated on the evidence before me. I have noted that in her oral evidence Ms de Caux conceptualised it as an adjunct to mental health occupational therapy. I understand her to mean that the functional strategies that would be developed by a mental health occupational therapist would be implemented by a mental health support worker under a form of delegation, distinct from a delegated model that would operate in relation to general support workers. In other words, this conceptualisation of the role is in terms of some paraprofessional specialisation. In my opinion a therapeutic support of this nature could only be approved if it satisfied the elements of Item 34 of Schedule 1.
8. The Applicant appears to conceptualise the role in terms of providing specific affective support, including comfort, reassurance and counselling, not available from general support workers. Again, this conception appears to be of a paraprofessional therapeutic support that would need to satisfy the elements of Item 34 of Schedule 1 if it were to be capable of approval. In this respect it would be a 'capacity building' not a 'core' support.
9. Although psychosocial functioning is referred to in Item 15 of Schedule 1, the supports prescribed there are limited to "training and development" activities related daily living and do not involve therapeutic interventions per se. It is difficult to find those activity characteristics in Ms de Caux's or the Applicant's description of a mental health support worker.
10. I note that the Applicant's positive recollection of the mental health support she received during her period of in-patient rehabilitation in a health facility appears to be in relation to clinical supports that would fall within the scope of Item 13(d) of Schedule 2.
11. For the foregoing reasons, due to the lack of specificity and conceptual difficulties associated with this requested support, I cannot be satisfied that it is, as described, a NDIS Support. I am not satisfied that it can fall within the scope of Items 14 or 15 of Schedule 1 of the NDIS Supports Transitional Rules. Nor on the evidence before me does it have an evidence base which would permit its' approval under Item 34 of Schedule 1 of those Rules. To the extent that the Applicant seeks to replicate the clinical mental health support she received during in-patient rehabilitation that is not a NDIS Support by operation of Item 13(d) of Schedule 2 of those Rules.
12. Having regard to the conclusions I will not consider any further the Applicant's requests for music therapy, art therapy/support for art activities, or a mental health support worker.

Is the support necessary to address the needs of the Applicant arising from an impairment in relation to which she meets the disability or early intervention requirements?

1. I now turn to consider if the Applicant's remaining requested supports satisfy the requirements of the paragraph 34(1)(aa) criteria. This requires the Tribunal to obtain a state of positive satisfaction that a requested support is "necessary" to address the needs of the participant arising from an impairment in relation to which she meets the disability requirements as these are contained in s 24, or the early intervention requirements as these are contained in s 25.
2. This is a two-step process.
3. First, the Tribunal must identify with precision the Applicant's permanent impairments that result in substantially reduced functional capacity for learning, communication, self-care, social interaction, mobility and/or self-management, and which affect her capacity for social or economic participation.
4. Second, the Tribunal must be positively satisfied that there is a plausible nexus between the requested support and any one or more of those permanent impairments.
5. While paragraph 34(1)(aa) uses the term "necessary", in my opinion that word is to be interpreted purposively as requiring positive satisfaction of a prima facie nexus between the requested support and the permanent impairment, rather than determination of the ultimate question of whether the support is reasonable and necessary. In this respect, if Parliament had intended the use of that word in paragraph 34(1)(aa) to forestall consideration of whether a support is 'reasonable and necessary' in the ultimate sense by reference to each of the s 34(1) criteria, it would have made that plain.
6. As I understand the evidence, the Applicant's relevant impairments to which her psychosocial disability is attributable, and those which are derivative of FND are:[42]
   • - impairments of global mental function (consciousness, global psychosocial, temperament and personality, energy and drive functions);
   • - impairments of specific mental function (attention, memory, emotion, perceptual, thought, higher level cognitive functions);
   • - impairment of voice and speech functions (voice function); and
   • - impairment of neuromusculoskeletal and movement related functions (muscle and movement functions).

1. I do not understand it to be controversial that these impairments are permanent in the sense required by the criterion contained in paragraph 24(1)(b), that they result in substantially reduced functional capacity for self-care, social interaction, mobility and self-management (the paragraph 24(1)(c) criterion), and that they affect the Applicant's capacity for social and economic participation (the paragraph 24(1)(d) criterion). I make these findings.
2. Nor do I understand it to be controversial that the remainder of the requested supports in issue arise from needs in relation to which the Applicant meets these disability requirements. In this respect:
   • - the requests for mental health and FND occupational therapy support have a plausible nexus with needs arising from the Applicant's impairments of global and specific mental function.
   • - the request for supports for home modification, medium-term accommodation, and home modification related occupational therapy have a plausible nexus with needs arising from the Applicant's impairment of neuromusculoskeletal and movement related functions.
   • - the request for physiotherapy and exercise physiology has a plausible nexus with needs arising from the Applicant's impairment of neuromusculoskeletal and movement related functions.
   • - the request for transport and support coordination has a plausible nexus with needs arising from the Applicant's impairments of global and specific mental function and her impairment of neuromusculoskeletal and movement related functions.

1. I now turn to consider each of the remaining requested supports against the balance of the ss 34(1) criteria.

Home modifications, medium term accommodation, and home-modification related occupational therapy

1. It is convenient to consider the Applicant's requests for funding for home modifications, medium-term accommodation and home-modification related occupational therapy together. That is because any need for medium-term accommodation and home-modification related occupational therapy will only arise if support for home modifications is determined to be reasonable and necessary.
2. The foundation facts in relation to these requested supports are not controversial. They are:[43]
   1. the Applicant lives in her own home and seeks to remain living there (the home);
   2. the home is a standalone three-bedroom house on a suburban block. Relevantly, the house has one older style unmodified bathroom and an adjacent toilet separated by a load-bearing wall. The bathroom has a glass-enclosed shower recess with hob;
   3. the Applicant requires 1:1 and sometimes 2:1 support worker assistance with self-care, including in relation to completing personal hygiene tasks in the bathroom;
   4. the Applicant has an extensive history of falls experienced during dissociative seizures and because of deconditioning. This falls risk is serious and ongoing;[44]
   5. there have been multiple incidents of the Applicant falling in the toilet and bathroom, including in and towards the shower recess, causing injury;
   6. when the Applicant falls in the shower, and in the toilet, her support workers experience great difficulty in moving her, including to position her safely while she remains unconscious, due to the lack of circulation space;[45]
   7. there is an unreasonable risk that the Applicant may fall onto the glass shower recess causing it to shatter with a serious risk of injury to her and her support workers;
   8. the CEO has approved funding for a tilt-in-shower commode,[46] prescribed by the Applicant's 'equipment and home modifications' occupational therapist, Ms Jojo Tang. The bathroom requires modification in accordance with the home modifications prescribed by Ms Tang to enable the effective use of this equipment;[47]
   9. Ms Tang has provided a scope of works for the required modifications to the bathroom and toilet, which, in brief, involves the removal of the load bearing internal wall between those rooms, the removal of the standard door entries to both rooms and the installation of a wide cavity door to the modified room, the installation of a new toilet in the open-plan room with grab rails on both sides, the removal of the enclosed shower fixture and its replacement with stepless shower niche and shower curtain, and the installation of non-slip flooring.[48]
   10. Quotations for completion of this work prescribed by Ms Tang have been obtained from licensed builders.[49] There is no issue about the feasibility of the work.
3. The contest between the parties in relation to the request for home modifications ultimately turns on what is the clinically appropriate approach to providing support for persons with a FND diagnosis at the stage of its progression in the Applicant.
4. The CEO principally relies upon the opinion evidence of his expert occupational therapist, Ms Ploszaj. Ms Ploszaj's opinion was that a less radical bathroom modification was appropriate having regard to the Applicant's existing and potential functional capacity for mobility (transfers, sitting balance), the availability of low-cost assistive technology such as a shower chair, and the active rehabilitation approach recommended by the clinical consensus reflected in Nicholson et al. Specifically, Ms Ploszaj interpreted this consensus as recommending against home modifications and provision of assistive devices because they create or reinforce subjective incapacity and dependence rather than challenge the person to realise their objective capacity. On this basis she had recommended against the provision of the tilt-in-space commode which the CEO has subsequently funded, the removal of the shower screen and hob and the installation of a shower curtain and rail. To reduce the risk of harm from falls she recommended the provision of cushioned mats on the floor of the bathroom.
5. Ms Ploszaj was an impressive witness overall but her evidence in relation to the Applicant's home modifications request was not persuasive for two reasons.
6. First, in applying the clinical consensus reflected in Nicholson et al she did not distinguish between the early onset medical rehabilitation stage and post medical rehabilitation advanced progression of FND. Proper reading of that clinical consensus confines the approach she recommends for the Applicant's support to the immediate post-onset of this condition when the prospects of rehabilitation are greater. The consensus is that in the post medical rehabilitation progression of the condition, treatment should focus on the management of disability, including the prescription of assistive technology and home modifications where required. As I have set out above, this case has proceeded on the basis that the Applicant is in a post medical rehabilitation stage of progression of FND.
7. Second, I am not satisfied that Ms Ploszaj gives sufficient weight to the need to ensure as far as possible the safety of the Applicant and her support workers. Neither the Applicant's bathroom or toilet can be used safely by the Applicant and her support staff. Their present use involves serious risks of injury and death for the Applicant, and serious manual handling risks for her support staff. It is no answer to this present risk that the Applicant has the potential to regain some functional capacity in the future. Ms Ploszaj's recommended modifications to the bathroom would mitigate the risks arising from the glass shower screen and hob, but the risks associated with the toilet, the absence of non-slip tiles and confined space in the bathroom would remain. Those risks are not reasonable.
8. With those conclusions as a backdrop, I now turn to consider specifically the remaining s 34(1) criteria.
9. The Applicant's first goal is 'to be supported to live as independently as possible and have the support I need to maintain living in my home'. I am satisfied that the Applicant's requested home modifications will assist her to pursue that goal, objective and aspiration by providing a safe and accessible space in which to undertake personal hygiene and other aspects of self-care. The paragraph 34(1)(a) criterion is met on this basis.
10. A safe accessible space in which to undertake self-care activities will facilitate the Applicant's social and economic participation. On a normative basis the Applicant has to engage in self-care in order to successfully socialise with others and participate in economic activity, such as going shopping. Her capacity for social and economic participation would be limited by any injury she may incur in her current unsafe and inaccessible toilet and bathroom. The paragraph 34(1)(b) criterion is met on this basis.
11. I do not have before me in evidence a costing of the home modifications recommended by Ms Ploszaj. As noted already, I do have two quotations for the home modifications recommended by Ms Tang. On an indicative basis, the cost of Ms Tang's proposed scope of works is between $55,000.00 and $59,000.00. It is a reasonable inference that the cost of Ms Ploszaj's recommended modifications would be substantially less than this. However in the cost:benefit analysis required by the 34(1)(c) criterion, and having regard to Rule 3.1 of the NDIS Supports Rules, I am satisfied that there is a substantially greater cost:benefit attached to Ms Tang's recommended modifications. For the reasons stated above they provide for the Applicant and her support workers safety while performing her self-care and represent appropriate management of the Applicant's FND at this stage of its progression. These modifications will therefore be of long-term benefit to the Applicant. While the modifications are unlikely to reduce the cost of other supports in any direct sense, they have some potential to reduce support coordination and other costs associated with high support worker turnover due to manual handling injury and risk. The home modifications are not of a type that could be leased, and there are no changes to technology, or for the reasons stated above, the Applicant's circumstances, that would render these modifications dis-utile. There is no evidence that the quoted costs of the works are excessive for the locality in which the Applicant lives: no challenge to the cost of the works is made on this basis. The paragraph 34(1)(c) criterion is met on this basis.
12. For the reasons stated above I am satisfied that the home modifications support requested by the Applicant will be effective and beneficial for her as required by the paragraph 34(1)(d) criterion and having regard to Rules 3.2 and 3.3 of the NDIS Supports Rules. In short summary, these modifications will provide the Applicant with a safe and accessible space in which she is able to complete her self-care with the assistance of her support staff. They are appropriately articulated with the post medical rehabilitation stage of progression of FND. In reaching this conclusion I have considered Ms Tang and Ms Ploszaj's expert opinions, the Applicant's lived experience, and I have had regard to the clinical consensus reflected in Nicholson et al.
13. With respect to the paragraph 34(1)(e) criterion, and Rule 3.4 of the NDIS Supports Rules, I am satisfied that the funding of these requested home modifications takes account of what it is reasonable to expect informal supports, networks and the community to provide. The Applicant has limited contact with family members and there is no evidence that they can provide the Applicant with a safe and accessible space in which to undertake her personal care. In any event, the Applicant is an adult, and it is not normative for family to make this sort of provision for an adult family member. The Applicant has no substantial ties to other informal networks in the community. In any event, it is not reasonable to expect an informal network or the community in the sense described to provide the Applicant with these expensive home modifications. That is clearly the responsibility of the NDIS in the circumstances of the Applicant.
14. For the foregoing reasons funding for home modifications in accordance with the scope of works proposed by Ms Jojo Tang, Total Health Physio, dated 21 August 2023 at Tab D30 of the Joint Tender Bundle is approved for inclusion in the Applicant's SOPS, such funding to include provision for:

(i) any costs of obtaining final plans for the work,

(ii) any costs of obtaining any approvals required for the work,

(iii) the final quoted price for the work,

(iv) project management of the work.

It is necessary that the funding approval make these allowances as the quotations for the work in evidence are substantially out-of-date.

1. The Applicant's request for medium-term accommodation is contingent upon her requested home modifications. In this respect I make the following findings of material fact:
   1. this Tribunal will approve funding for the home modifications to the Applicant's bathroom and toilet prescribed by Ms Tang;
   2. the Applicant's home has a single bathroom and toilet;[51]
   3. the home modifications will be substantial. They involve demolition and construction during which time services will require disconnection. They are likely to take up to eight weeks to complete;[52]
   4. for the foregoing reasons the Applicant cannot reasonably remain living in her home while these modifications are made.
2. I do not understand the CEO to challenge the provision of the requested funding for medium-term accommodation if funding for the requested home modifications is approved. Having regard to that I will touch only briefly on the s 34(1) criteria in relation to this support.
3. I am satisfied that medium term accommodation will assist the Applicant to pursue her goal, objective and aspiration of living independently as possible in her own home. It is support she needs to do so. The paragraph 34(1)(a) criterion is met on this basis.
4. I am satisfied that medium term accommodation will assist the Applicant to undertake activities that will facilitate her social and economic participation. The relevant activity is the home modifications which will provide a safe and accessible space in her home in which she is able to undertake self-care. As I have stated above, on a normative basis, self-care without an unreasonable risk of injury is a precondition for social and economic participation. The paragraph 34(1)(b) criterion is met on this basis.
5. I am satisfied that the funding for medium-term accommodation requested by the Applicant represents value for money. No challenge is made to the duration of the works, and the funding sought is in accordance with the NDIA's pricing arrangement and price limits.[53] The CEO's proposed alternative form of support is not to undertake the home modifications recommended by Ms Tang. I have not accepted the CEO's alternative proposal for the reasons stated above. The paragraph 34(1)(c) criterion is met on this basis.
6. I am satisfied that funding for medium-term accommodation will be effective and beneficial for the Applicant. There is no dispute that she will be unable to live in her home while the home modifications are undertaken. It is therefore essential that she secure temporary accommodation elsewhere while this work is completed. The paragraph 34(1)(d) criterion is met on this basis.
7. I am satisfied that the provision of funding for medium-term accommodation takes account of what it is reasonable for informal supports, networks and the community to provide. The Applicant is an adult with very limited family ties and few friends. There is no evidence that she would be able to stay with a family member or friend while the home modification works are completed. Medium-term accommodation is not a form of support that is reasonable to expect the community to provide in the sense described. That is clearly the responsibility of the NDIS in the circumstances of the Applicant.
8. For the foregoing reasons funding for up to eight weeks of medium term accommodation ought to be approved.
9. I now turn to the Applicant's request for funding for 40 hours equipment and home modifications for occupational therapy. I make the following findings of material fact in relation to this requested support.
   1. this request is founded upon a report prepared by Ms Jojo Tang dated 7 August 2024.[54] The 40 hours of support requested include allowances for the following:

- five hours for consultation regarding the use of the Applicant's powered wheelchair on the basis that she had at the date of the report recently been unable to independently mobilise with that device due to the risk of injury and property damage during a dissociative seizure;

- 15 hours for ongoing involvement with the Applicant's request for home modifications, including in relation to implementation;

- two hours in relation to the prescription of a portable air-conditioner and air conditioning in the bathroom;

- eight hours to assist the Applicant with the application of a tilt-in-space shower commode, including in relation to a second trial of such a device;

- 10 hours for general case management including participation in multidisciplinary team meetings.

1. in her oral evidence Ms Tang clarified that her recommendation for 40 hours equipment and modifications related occupational therapy was based on her assumptions that:

- the home modifications were not approved, and that further substantial work in relation to home modifications would be required.

- that a further trial of the tilt-in-space commode would be necessary to establish that it was a reasonable and necessary support for the Applicant.

1. Ms Tang was asked to assume that funding would be approved for the home modifications and the tilt-in-space shower commode. She then expressed the opinion that if that was the case, she would only require 'a few' hours in relation to both items to advise on implementation.
2. in her oral evidence Ms Tang also clarified that her assistance was no longer required in relation to the prescription of a portable and bathroom air conditioning unit.
3. in closing submissions on behalf of the Applicant it was submitted that having regard to the development of Ms Tang's evidence, if funding for the bathroom modifications and tilt-in-place shower commode were to be approved 'roughly only half' of the 40 hours of equipment and modification occupational therapy recommended by Ms Tang would be required.
4. the Applicant's current SOPS includes 50 hours a year of approved occupational therapy. It is not controversial that this quantum is reasonable and necessary for the Applicant. This approved occupational therapy is not tied to any occupational therapy specialty.
5. Ms Tang has specialised expertise in the prescription of assistive technology and home modifications. She has a continuing professional relationship with the Applicant. She has prescribed various low- and high-cost assistive technologies for the Applicant over time, including her power chair, eating utensils, the tilt-in-place commode, and the proposed bathroom modifications. She has substantive knowledge of the Applicant's functional limitations.
6. the clinical consensus reflected in Nicholson et al is to the effect that it is appropriate and necessary at this stage of progression of the Applicant's FND to focus on the management of disability, including via the prescription of assistive technology and home modifications.
7. I have determined that funding for 52 hours of Level 3 (Specialist) Support Coordination ought to be approved, in addition to the funding for 84 hours of Level 2 Support Coordination already included in the Applicant's SOPS (see following). I consider this relevant to the eight hours of 'case-management' recommended by Ms Tang.

1. The CEO's challenge to the approval of this requested support has three strands.
2. First, that the tilt-in-place shower commode and home modifications are not reasonable and necessary because they are contraindicated on the clinical basis asserted by Ms Ploszaj. I do not accept that this is the case for the reasons set out above and note with respect to the tilt-in-place commode that after the hearing the CEO funded this support. It must logically follow from this that the Applicant will require some occupational therapy support in relation to the implementation of that assistive technology. Similarly, I have determined that the Applicant's requested home modifications ought to be approved. It logically follows from that decision that some specialist home modifications related occupational therapy will be required in relation to the implementation of those modifications.
3. Second, that there is a sufficient allowance for occupational therapy support in the Applicant's SOPS as it presently stands for the prescription of assistive technology and that such prescription is within the expertise of any occupational therapist. The CEO does accept however that the prescription of home modification requires specialised expertise.
4. Third, and related to the second strand, that the Applicant's request for funding for three occupational therapy specialties is duplicative, unreasonably costly, and contrary to good practice.
5. Having considered the evidence and submissions of the parties I have determined that funding for 10 hours of occupational therapy support (including travel and report writing) referable to assistive technology and home modifications ought to be approved. In my opinion, on the evidence set out above, this is a sufficient allowance for implementation support for the tilt-in-place shower commode, home modifications, and for any necessary continuing work associated with the use of the Applicant's power wheelchair.
6. I do not consider that any allowance should be made for ongoing case management by an assistive technology and home modifications occupational therapist. This is a discrete role not requiring a high degree of multi-disciplinary coordination. To the extent that this support should be informed by and contribute to developments in the Applicant's support arrangements overall, the responsibility for ensuring that such coordination occurs should lie with the Applicant's Support Coordinator.
7. I now explain my reasons for reaching these conclusions by reference to the s 34(1) criteria.
8. I am satisfied that funding for 10 hours assistive technology and home modification related occupational therapy will assist the Applicant to achieve her goal, objective and aspiration of living as independently as possible and obtain the support she needs to remain living in her own home. That is because this support is ancillary to the provision of the tilt-in-place shower commode and home modifications required to enable the Applicant to complete her self-care in a safe and accessible place. It also relates to the Applicant's safe use of her power wheelchair. I am not satisfied on the evidence that any greater allowance for this form of support would result in any additional benefit to the Applicant in terms of the realisation of her goals. The paragraph 34(1)(a) criterion is met on this basis.
9. I am satisfied that 10 hours of assistive technology and home modifications related occupational therapy will assist the Applicant to undertake activities that will facilitate her social and economic participation. The relevant activities are the home modifications and the use of tilt-in-place shower commode both of which relate to the Applicant's ability to perform self-care in a safe and accessible space. As I have stated above, on a normative basis, self-care without an unreasonable risk of injury is a precondition for social and economic participation. Additionally, the Applicant's ability to use her power wheelchair safely is a precondition to using that equipment to support socialisation and economic activity in the community. I am not satisfied on the evidence that any greater allowance for this form of support would result in any additional benefit to the Applicant in terms of her social and economic participation. The paragraph 34(1)(b) criterion is met on this basis.
10. I am satisfied that this support represents value for money. The alternative support contended for by the CEO is the existing approval of 50 hours of occupational therapy for capacity building. I will discuss the adequacy of this support following but note that I have concluded that this is reasonable and necessary for mental health/neurological occupational therapy support. For present purposes I am satisfied that an additional 10 hours of assistive technology and modifications related occupational therapy support has a material additional cost:benefit to the Applicant for two reasons. First, to the extent that it relates to prescription of home modifications there is no issue that this is a specialised field which occupational therapists with a mental health/neurological specialisation are unlikely to practice in.[55] Second, Ms Tang is the prescriber of the home modifications, tilt-in-place shower commode, and power wheelchair and she has an existing relationship with the Applicant. There would be discontinuity if implementation of these supports had to be transferred to another occupational therapist at this stage, particularly one who does not practice in the prescription of assistive technology. With respect to Rule 3.1 of the NDIS Supports Rules I am satisfied that this support in relation to the home modifications, and use of the tilt-in-space shower commode and power wheelchair will be of long-term benefit to the Applicant. There is no evidence that the cost of this support is out-of-the ordinary for the Applicant's locality. It is based on the Agency's pricing arrangements and price limits.[56] I am satisfied on these bases that the paragraph 34(1)(c) criterion is met in relation to 10 hours of occupational therapist support in this specialty. Having regard to the evidence and conclusions set out above I am not satisfied that any additional allowance for this specialty is justifiable having regard to tasks to be performed.
11. For essentially the same reasons I have stated in relation to the paragraph 34(1)(c) criterion, I am satisfied with respect to the paragraph 34(1)(d) criterion and Rules 3.2 and 3.3 of the NDIS Supports Rules that 10 hours, and not more, occupational therapy related to the assistive technology and home modifications will be effective and beneficial for the Applicant. I adopt that reasoning and find that the paragraph 34(1)(d) criterion is met on those bases.
12. Occupational Therapy is a specialist field of allied health which involves professional training and registration. Having regard to that it is not reasonable to expect that this form of support would be provided by a family member, informal networks or the community. I am satisfied on this basis that the paragraph 34(1)(e) criterion is met.
13. For the foregoing reasons funding for 10 hours support per year of specialist occupational therapy related to assistive technology and home modifications should be approved.

Mental health and FND related occupational therapy

1. I now turn to consider the Applicant's other requests for funding for occupational therapy support, being originally for an additional 95 hours to the capacity building occupational therapy already approved in the Applicant's SOPS. Considering the existing approval this was originally intended to allow for 68 hours a year of mental health occupational therapy and 74 hours a year of FND occupational therapy. However, in her oral evidence Ms de Caux clarified that she recommended funding for 64.6 hours mental health occupational therapy support, not 68 hours.
2. The requested mental health occupational therapy support is intended to provide for the following:

- 32.5 hours for fortnightly (26 weeks a year) consultations of 1.25 hours duration.

- 16 hours of resource development, participation in multidisciplinary team meetings, liaison with family, support coordinator and support worker training,

1. In her oral evidence Ms de Caux explained that her past and proposed work with the Applicant had a dual purpose, being:

(a) to work with the Applicant to develop strategies that would enable her to better regulate her emotions, cope with stressors, reduce sensory over stimulation, and manage periods of mental health distress. This includes the identification and design of environmental adaptations that can assist in sensory modulation, and the development of communication strategies to assist in interactions with her support workers.

(b) to train the Applicant's support workers in techniques that will enable them to better communicate with her, assist her to regulate her emotions, reduce sensory, overstimulation, and manage mental distress. This includes the development and implementation of a safety management and wellness plan.

1. Ms de Caux proposes to provide on-site consultations with the Applicant and her support workers in the Applicant's home.
2. The requested FND occupational therapy support is intended to provide for the following:

- 39 hours of fortnightly consultations of 1.5 hours duration,

- 12 hours for care team meetings and correspondence,

- 15 hours or ongoing seizure management plan review.

1. In her oral evidence Dr Gill explained that her past and proposed work with the Applicant focused on identifying and managing the triggers of the FND symptoms, specifically, her dissociative seizures. She has also developed a seizure management plan with the Applicant, which she opined required regular review.
2. Dr Gill is located interstate from the Applicant. She proposes to provide FND occupational therapy support to the Applicant and her support team by video/telephone.
3. The CEO challenges the approval of additional occupational therapy hours on the basis that the existing approval of hours is sufficient to meet the Applicant's needs, that there is duplication between the proposed mental health and FND occupational therapy supports, that the hours claimed are excessive for the work to be performed (particularly the hours claimed by Dr Gill for the review and updating of the seizure management plan), and that multiple providers create undesirable complexity in the Applicant's support arrangements. In this respect she relies upon Ms Ploszaj's evidence to this effect.
4. I make the following findings of material fact in relation to these requested supports:
   1. the Applicant has both a mental health and FND diagnosis. It is because of permanent impairments derivative of these conditions that she meet the disability requirements for access to the NDIS.
   2. FND exists at an intersection of mental illness and neurology: Nicholson et al. It is a rare condition. However, I accept Ms Ploszaj's evidence that an occupational therapist specialising in neurology or mental health ought to be capable of treating this condition.
   3. the Applicant's SOPS includes approval for 50 hours of occupational therapy a year. That funding is sufficient to support fortnightly hourly consultations for 48 weeks a year, and other activities such as travel, multidisciplinary team participation, minor resource development, and progress report writing. I accept Ms Ploszaj's oral evidence and the CEO's submissions to this effect.
   4. it is open to the Applicant to purchase mental health and/or FND specialist occupational therapy with her approved funding in whatever configuration she chooses, provided she does not exceed her funding limit.
   5. the quantum of occupational therapy approved in the Applicant's SOPS must be considered in the context of the SOPS overall, which is to be viewed as an integrated package of supports. Her SOPS relevantly includes other capacity-building and specialised supports, including funding for 53 hours a year of psychology, 52 hours a year of physiotherapy, 110 hours of disability-related health supports from a registered nurse, three hours clinical nurse consultant support, 90 hours of specialist behaviour support intervention and 30 hours for the development of a behaviour support plan.
   6. the quantum of occupational therapy approved in the Applicant's SOPS must also be viewed in the context of supports available to her from the mental health system, which involve three-monthly reviews by a consultant psychiatrist and weekly meetings with a mental health case manager.
5. As I have explained above, the s 34(1) criteria are conjunctive in structure. If any one of those criteria is not satisfied, the support cannot be approved. Additionally, a support cannot be approved for funding if it does not satisfy one or more of the general criteria for supports contained in Rule 5.1 of the NDIS Supports Rules, including relevantly, where it would cause harm to a participant and result in duplication of supports.
6. In this case I am satisfied that the additional hours of occupational therapy support sought by the Applicant should not be approved because it is not effective and beneficial as required by the paragraph 34(1)(d) criterion and Rules 3.2 and 3.3 of the NDIS Supports Rules. I am also satisfied in accordance with Rule 5.1 that it cannot be approved because it would be both harmful to the Applicant, and duplicate other NDIS supports available to the Applicant. I reach those conclusions for the following reasons:

- the Applicant's FND is in an advanced state of progression; it is 'treatment resistant'. While it is appropriate to maintain a rehabilitation focus, intensive rehabilitation measures are unlikely to produce substantial functional gains: Nicholson et al. I am satisfied that the existing approval of occupational therapy is calibrated with the state of progression of the Applicant's FND, and that the requested additional support is not.

- the clinical consensus regarding the treatment of FND is to assist the person to build an internal locus of control and set graduated goals. It warns against the establishment of an external locus of control in clinicians as likely to reinforce dependency and disability. I am satisfied that the high level of occupational therapy support sought by the Applicant is likely to have this effect, and that this would be harmful to her.

- having both a mental health and FND occupational therapist, particularly at the level of intensity sought by the Applicant, is likely to be both duplicative and lead to tensions and inconsistencies in approach. That was Ms Ploszaj's expert opinion which I accept. This is likely to be harmful for the Applicant.

- the fundamental purpose of occupational therapy is to devise strategies to improve function. While this will involve initial and periodic consultation with the participant and others, those strategies are primarily implemented by the participant and others in the absence of the practitioner. The utility of future consultations will depend upon the degree to which the participant and her support staff have been successful in implementing the strategies developed, such that further capacity building challenges can be set. Both Ms de Caux and Dr Gill propose interventions that are inconsistent with this approach. Both propose relatively frequent interactions which have a high affective component. This is likely to lead to preoccupation with symptoms rather than distraction from them and dependence upon clinicians rather than building the capacity of the Applicant for greater independence in the management of her mental health and FND symptoms.

- there also appears to be a significant degree of duplication between the proposed outcomes of the additional occupational therapy sought, and the other supports included in the Applicant's SOPS. For example, it is difficult to see why it would be necessary for a mental health occupational therapist to assist the Applicant to develop coping and emotional regulation strategies when she is funded for the support of a psychologist. Similarly, Ms de Caux proposes the development of a safety and wellness plan, and Dr Gill a seizure management plan, in circumstances where the Applicant is funded for registered nursing support. To the extent that these plans relate to first aid during a dissociative seizure, the latter specialty would appear to be the most appropriate one to formulate intervention strategies and train support staff. To the extent that these plans relate to behaviours of concern that are derivative of the Applicant's mental illness and FND, the Applicant is funded for a specialist behaviour support practitioner and the development of a behaviour support plan and associated support worker training. A proliferation of such plans is likely to lead to duplication and confusion for staff in my opinion.

1. The Applicant requests approval of funding for 178 hours of physiotherapy a year, being an additional 126 hours to what is currently approved. This is to provide for the following:

- 104 hours of physiotherapy consultations, being twice-weekly home-based appointments of approximately 1 hour duration,

- four hours a year for multidisciplinary team meetings.

1. The Applicant's request for additional physiotherapy is based on the recommendation of Ms Rachel Johnson, physiotherapist, who gave oral evidence at the hearing. Ms Johnson had been providing physiotherapy support to the Applicant for approximately one year as at the date of the hearing. Ms Johnson explained that the focus of her physiotherapy support for the Applicant was the recovery of her independent walking function, management of her falls risk, safe transfers, and safe manual handling of the Applicant by her support workers during transfers and when she experiences dissociative seizures. Ms Johnson also developed a home-based exercise program for the Applicant.
2. The Applicant requests funding for 90 hours a year of exercise physiology. This is to provide for:

- 86 hours of exercise physiology sessions with an exercise physiologist on a one-on-one basis in the Applicant's home, and

- four hours for report writing and multidisciplinary team meetings.

1. Ms Kate Davies, physiotherapist, gave evidence that the purpose of exercise physiology is to build the Applicant's muscle strength and fitness through exercise and that in this respect it was complementary to, and not duplicative of physiotherapy. She conceptualised physiotherapy as working at the 'macro level', whereas exercise physiology would work at the 'micro level'.
2. The request for additional physiotherapy support and exercise physiology support is put on the basis that it will be a time limited intensive program over the next year, rather than one that would continue in perpetuity. It is contended that this is appropriate because the Applicant experienced significant improvements in function during an intensive program of physiotherapy combined with exercise physiology in the past, but these gains were lost when that intensive program ceased.[57]
3. The CEO challenges the approval of the additional physiotherapy support and exercise physiology support requested by the Applicant on the basis that it does not represent value for money and would not be effective and beneficial for the Applicant. It is also suggested that while physiotherapy and exercise physiology are separate disciplines with differences of focus, they also share many similarities, and would be duplicative in the circumstances of the Applicant contrary to Rule 5.1 of the NDIS Supports Rules.
4. I make the following findings of material fact in relation to these requested supports:
   1. physiotherapy and exercise physiology are different disciplines. In very short terms, the former focuses on the diagnosis, management and treatment of damage to body structures and systems, including that causing pain, using manual therapy and exercise so as to maintain and increase body function. The latter focuses on the prescription of individual exercise programs to build strength and functional capacity in the context of long-term disability.[58] However, both disciplines are concerned with exercise.
   2. FND is a diagnosis that exists at the interface between neurology and psychiatry and is a genuine cause of disability due to motor and non-motor symptoms. However, FND does not result from damage to a body structure or system. Its motor and non-motor symptoms result from involuntary self-focused attention. That is, they are psychosocial in character: Nicholson et al.
   3. the Applicant has substantial objective capacity for independent mobility[59] but her functional performance is very limited. She uses mobility devices (a manual and power wheelchair) and other assistive technologies (such as the tilt-in-shower commode) because she experiences dissociative seizures which result in falls, which sometimes cause injury. She is psychologically averse to self-mobilising because of this actual and perceived risk. As a result of her use of mobility devices and sedentary lifestyle, she has become seriously deconditioned. She has reduced movement-related functioning due to this deconditioning.
   4. the Applicant's functional performance of mobility related tasks and actions, such as standing, walking, and transfers has decreased markedly over the past 12 months leading up to the hearing due to the increased incidence of dissociative seizures and the Applicant's fear of falls.
   5. the Applicant's physiotherapist, Ms Johnson, has prescribed a graded home-based exercise program for the Applicant in response to her deconditioning.[60] The intention of that exercise program was for the Applicant to undertake regular home-based exercise for at least 10 minutes each day. The evidence was unclear about the extent to which the Applicant has carried out that exercise program.
5. As I have explained above, the s 34(1) criteria are conjunctive in structure. If any one of those criteria is not satisfied, the support cannot be approved. Additionally, a support cannot be approved for funding if it does not satisfy one or more of the general criteria for supports contained in Rule 5.1 of the NDIS Supports Rules, including relevantly, where it would cause harm to a participant and result in duplication of supports.
6. In this case I am satisfied that the additional hours of physiotherapy support and the exercise physiology support sought by the Applicant should not be approved because it is not effective and beneficial as required by the paragraph 34(1)(d) criterion and Rules 3.2 and 3.3 of the NDIS Supports Rules. I am also satisfied in accordance with Rule 5.1 that it cannot be approved because it would be both harmful to the Applicant and result in duplication of NDIS Supports. I reach those conclusions for the following reasons:
   • - the Applicant's FND is in an advanced state of progression. While it is appropriate to maintain a rehabilitation focus, intensive rehabilitation measures are unlikely to produce substantial functional gains: Nicholson et al. I am satisfied that the existing approval of physiotherapy is calibrated with the state of progression of the Applicant's FND, and that the requested additional support is not. It is the Applicant's own evidence that she has had the benefit of an intensive period of physiotherapy and exercise physiology rehabilitation which resulted in functional gains during that intensive program which were not sustained when it ceased.
   • - the clinical consensus regarding the treatment of FND is to assist the person to build an internal locus of control and set graduated goals. It warns against the establishment of an external locus of control in clinicians as likely to reinforce dependency and disability. I am satisfied that the high level of physiotherapy and exercise physiology support sought by the Applicant is likely to have this effect, and that this would be harmful to her.
   • - physiotherapy can assist the Applicant to manage the risks associated with falls and manual handling due to her limited functional performance of mobility tasks and actions, and it can assist in prescribing and supporting graded risk taking towards more independent movement, including walking. It can also assist in addressing her deconditioning due to immobility by the prescription of exercise. However, it is not a discipline that can address the psychological and social aetiology of her FND symptoms. This aetiology is the determinative or ultimate limiting factor in relation to the Applicant's mobility, rather than any problem of body structure or system. The scope for successful physiotherapy intervention is limited in this way, and in my assessment, the 52 hours that has been approved is sufficient.
   • - while physiotherapy and exercise physiology are separate disciplines, both involve the prescription of exercise and related instruction. At the level of exercise challenge, the Applicant is presently able to tolerate (10 minutes of light exercise daily as prescribed by Ms Johnson), there is no material difference between what a physiotherapist and an exercise physiologist could prescribe. These would be duplicative supports at this time. That may change over time if the Applicant is able to persist with prescribed exercise without dependence on allied health supports for its maintenance, but that circumstance is not foreseeable within the current plan period.

1. The Applicant requests approval of funding for 90 hours of Level 2 Support Coordination (being an additional six hours to the 84 hours already funded) and an additional 90 hours of Level 3 (or specialist) Support Coordination.[61]
2. The Agency's Operational Guidelines describe Level 2 and 3 Support Coordination in the following terms:[62]

Level 2: Coordination of Supports > > Support to put in place a mix of supports to increase a participant's capacity to maintain relationships, manage tasks, live more independently and be included in their community. > > It builds the participant's confidence and skills to direct their lives, not just their services. > > Level 3: Specialist Support Coordination > > A higher level of support for participants whose situations are more complex and who need specialist support. > > A specialist support coordinator will assist participants to manage challenges in their support environment and ensure a consistent delivery of service.

3. The CEO opposes approval of funding for Level 3 Support Coordination on the ground that the Tribunal cannot be satisfied that it represents value for money or would be effective and beneficial for the Applicant as required by the paragraph 34(1)(c) and (d) criteria and their associated NDIS Supports Rules. It is also suggested, presumably by reference to Rule 5.1 of the NDIS Supports Rules, that Level 3 Support Coordination would be duplicative of the Applicant's funding for Level 2 Support Coordination.
4. I make the following findings of material fact in relation to this requested support:
   1. the Applicant has a high-value SOPS; her total funded supports are $1,455.123.93 for the current operative 12-month plan period.
   2. the Applicant's SOPS includes high intensity supports; she is approved for 2:1 support worker assistance 16 hours a day, seven days a week, and 1:1 active overnight support eight hours a day, seven days a week. This involves a significant number of support workers (the number not being in evidence).
   3. additionally, the Applicant's SOPS includes 13 other supports in several categories, most of which are or will be obtained from separate specialist providers.
   4. The Applicant's current Support Coordinator, Ms Lihn Dao gave evidence of a high turnover of support workers and other providers of support for various reasons, including the Applicant's high support needs and behaviours of concern. This resulted in significant frequently recurring work for her in managing crises and sourcing alternative providers. That evidence was essentially unchallenged, and I accept it.
   5. Ms Dao also gave evidence of the significant time required to coordinate the Applicant's capacity-building and other supports to enable a multidisciplinary team approach to the Applicant's support. That evidence was also essentially unchallenged, and I accept it.
   6. Ms Dao gave evidence, which I accept, that she frequently exceeds the Applicant's approved hours for Support Coordination.
5. Having considered the evidence before me I am satisfied that funding should be approved for 50 hours of Level 3 Support Coordination in addition to the existing approved funding of 84 hours for Level 2 Support Coordination. I do not consider this support duplicative of the Applicant's existing funding for Level 2 Support Coordination. It will fund the more complex support coordination tasks required by the Applicant.[63]
6. I am not satisfied that any additional funding for Level 2 Support Coordination (6 hours) or for 40 additional hours of Level 3 Support Coordination is reasonable and necessary. This outcome will provide the Applicant with funding for a notional 2.5 hours of Support Coordination each week, which is a substantial allowance notwithstanding her complex circumstances. The evidence is not detailed enough (in terms of logs of work performed etc) to justify any greater allowance.
7. I now explain my reasons for reaching this conclusion by reference to the ss 34(1) criteria.
8. I am satisfied that this funding will assist the Applicant to pursue each of her goals, objectives and aspirations by securing, maintaining and coordinating the high-intensity and multidisciplinary supports the Applicant requires due to her complex needs. The paragraph 34(1)(a) criterion is met on this basis.
9. I am satisfied that the paragraph 34(1)(b) criterion is met on the same basis as for (a).
10. I am satisfied that approval of 50 hours funding for Level 3 Support Coordination represents value for money. The alternative support contended for by the CEO (the existing 84 hours for Level 2) is insufficient due to the complexity of the Applicant's needs and support arrangements, and the frequent challenges that arise in terms of service disruptions and discontinuities. Additionally, by this decision, home modifications have been approved which will require the Applicant to temporarily move into alternative accommodation. Coordinating the modifications and temporary accommodation adds additional complexity to the Support Coordination role during this plan period. Having regard to Rule 3.1 of the NDIS Supports Rules I am satisfied for these reasons that 50 hours of Level 3 Support Coordination will improve the life stage outcomes and be of long-term benefit to the Applicant during this plan period. The funding sought is in accordance with the Agency's pricing arrangements and price limits. The paragraph 34(1)(c) criterion is met on this basis.
11. For essentially the same reasons I have stated in relation to the paragraph 34(1)(c) criterion, I am satisfied that the paragraph 34(1)(d) criterion is met. I have had regard to the Applicant's lived experience in reaching that conclusion.
12. Level 3 Specialist Support Coordination is a skilled and time intensive function. The Applicant is an adult. It would not be reasonable to expect family members to provide this form of support for an adult participant, and in any event, the Applicant does not have any family member closely involved in her support who could do so. Nor is this a form of support that it would be reasonable to expect any other informal support or the community to provide.
13. For the foregoing reasons funding for 50 hours per year of Level 3 Support Coordination should be approved.

1. The Applicant seeks approval for $3,456.00 in funding for transport which is a figure equivalent to Level 3 Transport funding under the Agency funding guidelines related to transport.[64] As noted above, she is currently funded for Level 1 Transport as provided for in those Guidelines in the amount of $1,784.00 a year which is paid into her bank account in fortnightly increments of approximately $68.00.
2. Additionally, the Applicant is funded $1,367,146.11 a year for Core Supports in a Supported Independent Living (SIL) package which she can use flexibly to purchase supports for assistance with daily life, assistance with social, economic and community participation and transport. However, in this respect no specific allocation is allowed for transport in the Core Supports category. Consequently, it would be necessary for the Applicant to choose to purchase transport rather than support worker assistance for support with daily living or community participation.
3. The Applicant contends that she should be approved for the equivalent of Level 3 transport funding because she is unable to use public transport, does not have a private means of transport, and does or will incur high transport costs in attending allied health and medical appointments, periodically visiting her mother and a friend, and weekly shopping for her subsistence needs.
4. The CEO opposes the approval of Level 3 transport funding on the policy basis that this is intended for participants who are currently working, looking for work, or studying, at least 15 hours a week, and are unable to use public transport because of their disability. While the CEO accepts that the transport policy is not binding upon the Tribunal, he submits in accordance with established principle, that it ought not to be departed from for good reason, and no good reason to do so exists in this case.
5. I make the following findings of material fact in relation to this requested support:

- the Applicant is prescribed a manual and motorised wheelchair for mobility.

- the Applicant does not own a motor vehicle, modified or otherwise.

- there is a bus service to town and transport hubs that operates from a bus stop approximately 200m from the Applicant's home. The bus service is apparently wheelchair accessible, but the Applicant has an aversion to travelling by public transport, and in her evidence Ms Tang, occupational therapist, was unable to say if there was a sufficient turning circle on the bus to accommodate the Applicant's motorised wheelchair.

- the Applicant has not travelled by train for some years and has an aversion to attending two local train stations because she believes they are inhabited by 'unsavoury' people.

- the supermarket utilised by the Applicant is approximately 600m from her home.

- the Applicant uses a Maxi-Taxi for transport rather than a regular cab because she prefers to use her motorised wheelchair in the community.

- the medical and allied health appointments the Applicant identified as those in relation to which she requires transport support were:

- fortnightly consultations with her General Practitioner;

- 'frequent' consultations with a sleep physician;

- weekly meetings with her mental health case manager; and

- consultations with her consultant psychiatrist every three months.

- the Applicant's account of the medical and allied health appointments she was required to attend had inconsistencies and was not supported by objective evidence in the form of travel logs, diary entries, receipts for fares incurred or the like.

1. As I have explained above, the ss 34(1) criteria are conjunctive in structure. If any one of those criteria is not satisfied, the support cannot be approved. In this case I am not satisfied that the Applicant's request for Level 3 Transport funding represents value for money. The Applicant has available to her Level 1 transport funding, and she may also use her Core Support Budget flexibly to meet disability related transport costs. I acknowledge that the latter involves making choices between her SIL supports (such as utilising less than 2:1 support worker assistance sometimes), but that is consistent with the graded approach to participation related risk taking recommended by the clinical consensus in Nicholson et al. The Applicant can also reduce her costs of transport by increasing her exposure to public transport in a graded way consistent with the participation related risk taking recommended by the clinical consensus in Nicholson et al. She is funded for psychology, neurological/mental health occupational therapy, and behaviour support which can assist in this respect. I also note that NDIS transport funding is referrable to the additional costs of transport a participant incurs due to disability. The NDIS is not intended to fund day to day transport costs that any person is obliged to pay (such as a bus or train fare). While I am not bound by the Agency transport funding operational policy, for the foregoing reasons, I am not satisfied that there is good cause to depart from it in the circumstances of this case.

1. For the foregoing reasons, I make the following orders:

(1) The order made pursuant to s 53 of the Administrative Review Tribunal Act 2024 (Cth) on 15 November 2024 is varied as set out at paragraph 20 of these reasons.

(2) Pursuant to s 105(b) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review made pursuant to ss 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) on 19 January 2026 is varied to approve the following reasonable and necessary supports for inclusion in the Applicant's Statement of Participant Supports:

(a) funding for complex home modifications in accordance with the scope of works proposed by Ms Jojo Tang, Total Health Physio, dated 21 August 2023 at Tab D30 of the Joint Tender Bundle, such funding to include provision for:

(i) any costs of obtaining final plans for the work,

(ii) any costs of obtaining any approvals required for the work,

(iii) the final quoted price for the work,

(iv) project management of the work, and

(v) 10 hours specialist Occupational Therapist home modification and assistive technology advice, including travel.

(b) funding for up to eight weeks' Medium-term Accommodation while the complex home modifications referred to in paragraph (a) are completed,

(c) funding for 50 hours Level 3 (or Specialist) Support Coordination (in addition to the existing funding for 84 hours Level 2 Support Coordination),

(d) the funding referred to at paragraph (a)(v) above is additional to the funding for Occupational Therapy support contained in the Applicant's existing SOPS.

(3) Pursuant to s 101(a) of the Administrative Review Tribunal Act 2024 (Cth) the application for review insofar as it concerns the internal review decision dated 18 November 2022 and the decisions to approve a Statement of Participant Supports dated 31 May 2023, 27 November 2023, 27 November 2024 as later varied, 6 November 2025 as later varied, and 9 January 2026 is dismissed on the basis that it is now lacking in substance.

3 - 5 February, 9-11 and 14 April, 7 May, 11 June 28 November 2025 and 3 February 2026

[1] This proceeding commenced before the AAT in accordance with the power conferred by s 25 of the AAT Act. The AAT was abolished and replaced by the Administrative Review Tribunal (ART) with effect from 14 October 2024. By operation of Item 24 in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) any proceeding which was not determined by 14 October 2024 continues in the ART and is to be determined by the application of the provisions of the ART Act.

[2] Respondent's Statement of Facts, Issues and Contentions, 22 November 2024, at [5].

[3] In the Respondent's closing submissions, dated 5 June 2025, it is stated at [3] that the mechanism by which this SOPS was created was a s 47A variation, rather than as a result of s 48 reassessment, as is stated in the Respondent's Statement of Facts, Issues and Contentions, dated 22 November 2024 at [5]. However, nothing turns on this. In either case the application is taken to be an application for review of this subsequent decision pursuant to s 103(2) of the NDIS Act.

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

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

[6] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [60]; National Disability Insurance Agency v WRMF [2020] FCAFC 79; (2020) 378 ALR 449 at 491 [201].

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

[8] I note that on 8 December 2025 the CEO filed additional T-DoCS related to the plan reassessment that was conducted prior to the plan decision made on 6 November 2025. The parties have both advised in writing that in the circumstances I have described above they do not rely on that material in this review. Both cases rest on the state of the T-DoCS as they stood at the time of the hearing.

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

[10] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [142].

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

[17] Applicant's Statement of Facts, Issues and Contentions, filed 20 December 2024 at [16].

[18] Nicolson, CM Edwards MJ, Carson AJ, et al, "Occupational therapy consensus recommendations for functional neurological disorder", J Neurol Neurosurg Psychiatry 2020; 91; 1037 -1045.

[19] Letter of Consultant Neurologist to the Applicant's General Practitioner, dated 12 December 2022, Joint Tender Bundle, Tab D10, page 458.

[20] There is inconsistency in reports of the period of admission. In her Statement of Lived Experience the Applicant says it was 9 months. In her reports to the NDIA, the Applicant's Support Coordinator states it was 7 months. In her expert report, Ms Ploszaj states it was 17 months, which may be a typographic error.

[21] Letter of Consultant Neurologist to the Applicant's General Practitioner, dated 12 December 2022, Joint Tender Bundle, Tab D10, page 458.

[22] Clinical psychologist report to NDIA dated 21 March 2023, Joint Tender Bundle, Tab D19, page 526; see also letter of Consultant Neurologist to the Applicant's General Practitioner, dated 12 December 2022, Joint Tender Bundle, Tab D10, page 458, which does not explicitly refer to a FND diagnosis, but outlines the symptoms of that condition.

[23] Recommendation letter of Occupational Therapist, Joint Tender Bundle, Tab D36 page 648.

[24] CEO's Statement of Facts, Issues and Contentions filed 22 November 2024 at [10].

[26] Applicant's Statement of Lived Experience, Joint Tender Bundle, Tab D69, page 878.

[27] Ms Lihn Dao, Support Coordinator, oral evidence.

[29] The CEO makes this case with respect to the Applicant's request for a support worker for "artistic activities", but the challenge is directed towards the qualifications of the practitioner, not the service system responsible for providing this support.

[30] Respondent's closing submissions filed 25 June 2025 at [85].

[31] FSWN and National Disability Insurance Agency (NDIS) [2025] ARTA 114.

[33] ZNVT by his Nominee ZNVT(N) and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1824.

[34] Respondent's closing submissions filed 5 June 2025 at [85].

[35] Ms A Ploszaj, Functional Capacity Assessment Report, 28 June 2024, Joint Hearing Bundle, Tab f1, page 2050.

[36] Further submissions on behalf of the Applicant dated 4 June 2025 at [71]; National Disability Insurance Agency, National Disability Insurance Scheme, Pricing Arrangements and Price Limits 2025-26 at page 66.

[37] Ms Kerrie Jacobs, Art Report, 2 September 2024, Joint Tender Bundel Tab D70, page 881-2.

[38] The Applicant attends upon her consultant psychiatrist for psychiatric review every three months, and she sees her mental health case manager weekly.

[39] Ms Tess Feldman, NDIS Psychosocial Disability Progress Report, 29 August 2024, Joint Tender Bunde, Tab D67, page 855.

[40] Joint Tender Bundle, Tab D69, page 872.

[41] I also note parenthetically that it is difficult to see how the approval of four hours mental health support worker assistance a week can overcome the asserted limitations in the existing 112 hours of day-time assistance already available to the Applicant. Those asserted limitations could only be addressed by improved recruitment and workforce capacity building relative to the Applicant's psychosocial presentation and needs.

[42] This may be distilled from Ms Alicja Ploszaj Functional Capacity Assessment Report, 28 June 2024, Joint Tender Bundle, Tab F1, pages 3023-35 and by applying the World Health Organisation, International Classification of Functioning, Disability and Health (ICF), 2011, Body Functions, Chapters 1,3 and 7.

[43] Ms Jojo Tang Occupational Therapist, Recommendation Letter, 26 March 2024, Joint Tender Bundle, Tab D36, page 645-49.

[44] See the 'Episode, Stumble and Falls Log' attached to the document at Tab D50 of the Joint Tender Bundle, at pages 745-56.

[45] This is graphically illustrated in the Applicant's document at Tab D50 of the Joint Tender Bundle, 'Documentation of recent seizures in bathroom', page 730-44.

[46] First by the participant plan dated 6 November 2025, then by the second plan approved on 19 January 2026.

[47] In cross-examination of Ms Tang and in submissions the CEO challenged this proposition asserting that the commode would 'fit' in the existing bathroom. However, I accept Ms Tang's evidence that while it may 'fit' it could not be used in its full tilting position due to space constraints. It would thus have a material reduced utility.

[48] Ms Jojo Tang, Scope of Works, 21 August 2023, Joint Tender Bundle, Tab D28, pages 575-85.

[49]50 Joint Tender Bundle, Tabs D38 and D39, pages 669-79.

[51] HomeCare Response Australia Pty Ltd, Quotation, 5 December 2024, Joint Tender Bundle, Tab D38, pages 669-73; Restore Home Modifications, Quotation, 7 August 2024, Joint Tender Bundle, Tab D39, pages 675-79; Complex Home Modifications Assessment Template, completed by Ms J Tang 6 September 2023, Joint Tender Bundle, Tab D31, pages 587-611.

[53] National Disability Insurance Agency, Pricing Arrangements and Price Limits 2025-26, 24 November 2025, page 54; MediStays, Accommodation Services Quotation, undated, but is respect of the period 11 November 2024 to 6 January 2025, Joint Tender Bundle, Tab D81, pages 973-94.

[54] Ms Jojo Tang, Equipment and Home Mods OT Recommendation Letter, 7 August 2024, Joint Tender Bundle, Tab D62, page 824-29.

[55] This was the oral evidence of Dr Gill, the Applicant's FND Occupational Therapist and Ms de Caux, the Applicant's mental health Occupational Therapist. The CEO expert, Ms Ploszaj also accepted that this was the case in her oral evidence.

[57] Sarah Mackay Physiotherapist and Tegan Drury, Exercise Physiologist, NDIS Physiotherapy Progress Report, 29 November 2022, Joint Tender Bundle, Tab T1B, page 21.

[58] Australian Physiotherapy Association, Differences between a physiotherapist and an exercise physiologist (undated).

[59] I accept the evidence of Ms Ploszaj to this effect.

[61] This level of Support Coordination is justified by Ms Lihn Dao, Support Coordinator in an undated document found at Tab D9 of the Joint Tender Bundle, pages 964-5.

[62] National Disability Insurance Agency, Level of Support Coordination, Support coordinators | NDIS

[63] Ms Dao sets out a satisfactory breakdown of tasks referrable to the Level 2 and Level 3 Support Coordination requests at Tab D79 of the Joint Tender Bundle, pages 964-5.

[64] National Disability Insurance Agency, Including Specific Types of Supports in Plans Operational Guidelines, 10 December 2025.