1. The issues before the Tribunal are whether the following supports are reasonable and necessary to include in the Applicant's SPS for the purposes of sections 33 and 34 of the NDIS Act:

(a) 24/7 support worker assistance with activities of daily living, with active overnight support; > > (b) $2,500 for low-cost assistive technology; > > (c) Approximately $4,900 for enemas; > > (d) 41 hours per year for occupational therapy; and > > (e) $5,352 for transport funding.

2. The Applicant also requests that the duration of her plan be increased so that the next reassessment date is 24 months following commencement of a new SPS. The Agency considers that a 12-month reassessment date plan is appropriate.

1. The Tribunal was provided with a Joint Tender Bundle (JTB) by the parties, and this was accepted into evidence.[1] The JTB included:

(a) The T-documents;[2] > > (b) A behaviour support plan completed by Ms G McMahon, clinical psychologist; > > (c) A report from Dr E Gentle, neuropsychologist; > > (d) A letter from Dr C Meegan, clinical psychologist; > > (e) Letters from Dr A Shuey, consultant psychiatrist; > > (f) A letter from Dr B Webb, general practitioner; > > (g) A letter from Dr M Tuminello, rehabilitation physician; > > (h) Letters from support workers and a support coordinator; > > (i) Statements of lived experience from the Applicant and her partner; > > (j) Letters and reports from Ms K Paul, occupational therapist; > > (k) Letters and reports from, Ms C Kefford, physiotherapist; > > (l) Reports from Ms K Rim, registered continence nurse; > > (m) Logs of panic attacks and urine output; > > (n) Incident reports; > > (o) Apartment floor plans; > > (p) Copies of the Applicant's NDIS plans; and > > (q) A report by Ms P Houston, occupational therapist.

OVERVIEW OF THE NDIS DECISION-MAKING FRAMEWORK[3]

1. Chapter 1, Part 2 of the NDIS Act sets the Act's objects and principles, including, for example, that the Act is to support the independence and social and economic participation of people with disability,[4] enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports,[5] and that decision-makers are to have regard to the need to ensure the financial sustainability of the scheme.[6]
2. Chapter 3, Part 2 of the NDIS Act deals with participants and their plans and includes further principles in relation to the preparation, variation, reassessment and replacement of plans. This guidance includes that the planning process should, so far as reasonably practicable, be directed by the participant,[7] and be underpinned by the right of the participant to exercise choice and control over his or her life.[8]
3. A participant's plan must include a statement of the participant's goals and aspirations,[9] as well as an SPS that includes the reasonable and necessary supports that will be funded by the Agency.[10] In deciding to approve an SPS, the Agency must have regard to the matters set out in section 33(5), including applying the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Support Rules), and be satisfied that each support meets the criteria in section 34. The criteria in section 34(1) are that:

(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... > > (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]

4. The phrase 'NDIS support' in section 34(1)(f) is defined in section 10 which further provides that rules may be made to declare whether a support is (or is not) an NDIS Support. The Minister has made the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Transitional Rules). The Transitional Rules specify supports that are an NDIS support unless otherwise provided (Schedule 1) as well as supports that are not NDIS supports (Schedule 2).
5. Section 7 of the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Miscellaneous Transitional Rules), also requires that a support is most appropriately funded or provided through the NDIS, and not more appropriately funded or provided through other general systems of service delivery or support services. This is equivalent to section 34(1)(f) as it was prior to the commencement of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Back on Track Act).
6. NDIS Operational Guidelines also assist in making decisions in accordance with the NDIS Act. Operational guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[11] I will refer to these guidelines where relevant below.

1. Section 34(1)(aa) was introduced by the Back on Track Act and requires that, for a support to be considered reasonable and necessary:

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

2. The Agency does not contend that any of the supports requested by the Applicant arise from impairments in relation to which the Applicant did not meet the disability requirements. Having considered the information before me, I am satisfied that the requested supports are necessary to address needs of the Applicant arising from impairments in relation to which the Applicant meets the disability requirements.

Support request (a): Support worker assistance with activities of daily living

1. Ms Salathiel seeks 24/7 support worker assistance, at a 1:1 ratio, including active overnight support. Prior to the hearing the Agency's position was that the current SPS was appropriate which includes:

... 24/7 Supported Independent Living consisting of:

1. 42 hours per week of support at a 1:1 ratio of care.
2. 28 hours per week for 'Other' supports.
3. Inactive overnight support at a 1:2 ratio of care.
4. All remaining daytime supports to be provided at a 1:2 ratio of care.

1. Acknowledging Ms Salathiel's strong preference to remain in her current accommodation, following the hearing, the Agency's revised their position to:

... the correct and preferable decision is for the Tribunal to set aside the reviewable decision and include the following support worker support:

a) 7 hours per day of 1:1 support worker support for assistance with self-care activities;

b) 1 hour per weekday evening of support worker support for assistance with self-care activities;

c) Inactive overnight support; and,

d) 35 hours per week of 1:1: community access support - which equates to 5 hours per day.

Under this model Ms Salathiel would receive a total of 12 hours of support worker support on weekdays during the day, an additional hour of evening support on weekdays and 8 hours of sleepover support.

This leaves Ms Salathiel without support worker support for a total of 4 hours a day on weekends and 3 hours on weekdays. Support worker shifts could be structured so that Ms Salathiel was not without support worker support for more than 2 hours at a time.[12]

1. In her closing submissions, the Ms Salathiel acknowledged that the Agency's revised position would provide improved support but maintained that the requested 24/7 supports were required.
2. With regards to daytime and evening support worker assistance, the Ms Salathiel relies on several expert opinions. In her functional capacity assessment dated 30 May 2024, Ms K Paul, occupational therapist, recommends:

Assistance with Daily Life > > Personal care: > > Recommendation: Claire requires the following support worker assistance with the > > following personal care tasks, daily:

• 1:1 for all transfers and positioning.
• 1:1 with personal care tasks - showering, dressing, toileting
• 1:1 support throughout the day for access to care. Claire cannot be left alone. She is placed in a very vulnerable position if so. Claire also has bladder urgency as requires assistance to transfer onto her commode.
• 1:1 overnight support.

Domestic tasks: > > Recommendation: Claire requires support with the following tasks:

• Meal preparation
• Assistance with laundry
• Cleaning and household maintenance tasks.

• 1:1 support for 16 hours a day
• 1:1 support for inactive support a day

Reasonable and necessary justification: As an individual living with cerebral palsy, Claire faces considerable challenges in performing basic self-care tasks independently. Her condition affects her motor functions, making it difficult for her to accomplish essential activities such as bathing, dressing, toileting, transferring, and household tasks. The severity of her function limits her mobility and coordination, making her highly dependent on others for these fundamental tasks. Cerebral palsy affects her muscle tone and control, leading to heightened risks of accidents or injuries, especially during activities such as transferring or toileting. Without constant assistance and oversight, Claire is at risk of experiencing difficulties or accidents that could compromise her safety and well-being. > > Assistance during the night is crucial to ensure that Claire can rest comfortably and address any needs or emergencies that may arise during these hours. Claire requires 24/7 NDIS formal support workers to assist with her ADLs and provide overnight support. This level of support is essential to help her maintain a dignified and fulfilling quality of life, despite the limitations imposed by her condition. With dedicated assistance throughout the day, Claire can navigate daily life with greater independence, security, confidence that her needs are addressed in a timely manner.[13]

1. In her letter dated 19 June 2025, the Applicant's physiotherapist, Ms C Kefford, also recommends 24 hours support worker assistance, saying:

... toileting transfers - rather than the loss of canine support - are now the primary driver of Claire's fall risk and overall health risk profile.

• Claire cannot transfer to, from, or remain on the toilet independently; she requires either a stand-and-pivot assist or a full hoist transfer performed by a trained worker.
• Because she currently receives only 11 hours of support per day, she is left unassisted for up to 13 hours. During these gaps she must restrict fluids, delay voiding, or remain in wet bedding - all of which heighten skin-breakdown, infection, and fall risks.
• Bed-wetting incidents now occur about once a month, and bowel care can take up to three hours twice daily; both tasks are impossible without 1:1 assistance and place Claire at immediate risk of slipping, collapsing, or being stranded mid-transfer.
• Previous attempts at self-management (e.g., triple-layer pads, fluid restriction, salt loading) have already resulted in MRSA-positive cellulitis, sepsis calls, and kidney strain - evidence that inadequate support directly endangers her life.

Given these findings, Claire's treating team unanimously recommends 24-hour qualified support to enable timely toileting, maintain continence, and prevent falls and secondary complications. Until this increase is approved, Claire remains at an escalating risk of serious injury or hospitalisation.[14]

1. However, the Applicant's treaters have also noted an improvement in Ms Salathiel's continence following a change in medication. On 1 April 2025, Dr Tuminello, rehabilitation physician reported that:

Claire has been commenced on a medication known as mirabegron (Betmiga). This has resulted in dramatic improvement in symptoms. Without this drug Claire has urge incontinence of urine hourly, requires a pad and regular changes. Without this drug Claire has considered a permanent suprapubic catheter but is very adamant she doesn't want this invasive procedure for a range of reasons. Without regular pad changes when wet, her skin integrity is compromised leading to skin breakdown, skin infections, and urinary tract infections.[15]

2. This improvement is also noted in a letter dated 27 August 2025 from Ms K Rim, registered continence nurse, who says:

Since weight loss and starting Betmiga (as treatment for incontinence) Claire has gained the ability to be continent, because Claire has better control when needing to void she can now give her Support Workers enough warning, so they can assist her to transfer onto a commode or toilet as required. During the day, most of the time Claire tends to have about 30min warning of the need to void, but unfortunately sometimes the urge is sudden 5 to 10min, which means drop everything and get assistance to transfer. At night the warning time is much less, about 10min, this is likely due to Claire sleeping through the initial urges. Claire finds at times she can "hold on longer" when she massages her lower abdomen (just over her bladder). Claire generally has difficulty voiding to empty her bladder (as a precaution) if her bladder is not full enough to trigger the urge to void. Claire's bladder capacity and ability to "hold on" is also slowly increasing. All positive gains that need to continue. Consciously voiding into a pad due to lack or carer support is an extremely backward step and would minimise the improvements Claire is able to continue achieving.[16]

3. The Applicant also provided logs of her urine output and panic attacks. The urine logs indicate that the Applicant voided her balder approximately four times per day and twice at night.[17] The Agency noted that the entries for overnight urination are regular, being at midnight and 2:00 am for each entry in the log. The log of panic attacks, indicate that Ms Salathiel experienced an attack on most nights and was unable to administer her medication during these panic attacks with assistance.[18]
4. The Agency relies on the opinion of Ms P Houston, occupational therapist. In her report dated 1 August 2025, Ms Houston says:

The Participant can be safe to be left alone for 3-4 hours, provided that her apartment is set up for easy access for items that she would require whilst alone. She would benefit from a smart watch with falls detection or set up to have an alarm monitoring service, which will alleviate her overnight concerns if she declines to utilise the 1:2 inactive sleepover funding.[19] > > ... > > This would depend on whether or not the Participant is open to the use of washable and reusable incontinence pants, better waterproofing bedding, and the alarm monitoring service (this may not be required long term but would help to address any concerns with overnight emergency care). > > In my opinion I would say no active 1:1 and at worse one (1) hour to assist with toileting needs. This would be for changing of incontinence pants rather than hoisting to go to the toilet, if it takes significant longer, so that her sleep disturbance is not prolonged. The other consideration is whether the use of a bed pan is suitable if overnight toileting is required. Again, the proposed solution(s) is aimed at minimising sleep disturbance for the Participant, as good sleep hygiene will promote a better overall feeling of wellbeing.[20]

5. Ms Houston maintained this opinion during her oral evidence but also indicated that she would refer back to the expert opinion of Ms Rim with regards to the Applicant's continence needs.[21]
6. During her oral evidence, Ms Kefford did not agree with the opinion of Ms Houston that it would be safe for the Applicant to be left alone for three to four hours. Ms Kefford was concerned that Ms Salathiel would be at risk of falls if she tried to pick-up a dropped item or would otherwise not be able to complete tasks that developed her skills. Ms Kefford did acknowledge that whether it was reasonable for the Applicant to be left on her own after she was set up for a task might depend on how long and how often this would occur.[22] Ms Kefford also acknowledged that a support worker setting an alarm to assist with toileting twice a night could be workable.[23]
7. During her oral evidence Dr Shuey, the Applicant's psychiatrist, expressed concerns with the distress that Ms Salathiel would experience if bedwetting occurred due to an inactive overnight carer not being able to attend quickly enough to assist with a toilet transfer. While Dr Shuey did consider that it would be safe for the Applicant to be left alone for a few hours during the day, but was concerned that this would increase the Applicant's anxiety.[24]
8. With regards to daytime assistance, on balance, I do not consider that it would be safe for the Applicant to be left alone for periods of time. I am persuaded that the risk of falls for the Applicant are too significant for her to be left unattended. In particular, I am persuaded by Ms Kefford's opinion that the consequences of a fall for the Applicant are more serious due to her impaired ability to protect herself during a fall, increased risk of fractures due to bone thinning, multiple prior orthopaedic surgeries, and the risk of overdose if her baclofen pump is damaged. Ms Kefford also reports that a previous fall, in October 2024, resulted in a significant deterioration in Ms Salathiel's functional capacity.[25] I also prefer Ms Kefford's opinion as she has worked with the Applicant for more than twenty years, as compared with Ms Houston's opinion which was based on an assessment 'on-the-papers'. Overall, I consider that the falls risk for Ms Salathiel being left unattended is too high and that support worker attendance is required at all times. It is possible that this need may reduce when Ms Salathiel is able to engage another assistance dog, however the likely timeframe for this is currently unknown.
9. With regards to overnight assistance, I am not satisfied that active overnight assistance is reasonable and necessary. I have considered the Agency submission that active overnight support costs approximately $144,000 per year more than inactive overnight support.[26] Such expenditure does require a considerable level of confidence that the support in required. In my view, it is worth trialling the use of inactive overnight support before considering active overnight support. An inactive overnight support worker should be able to be alerted to a panic attack and assist Ms Salathiel with her medication and response strategies. A support worker does not need to always be awake overnight to provide this response. It also appears that, based in the Applicant's urine logs, an inactive overnight support worker may be able to schedule two toileting transfer assists per night, or woken if needed.
10. I acknowledge that there are currently practical issues with locating a fold away bed in the Applicant's second bedroom as this room is small and used as an office. However, I am not satisfied that this room cannot be reconfigured to allow for a fold away bed. A period of trialling inactive overnight support should allow for these practical issues to be properly assessed, as well as for the frequency and duration of overnight assistance to be recorded. If an inactive overnight support worker cannot be provided with a suitable sleeping arrangement, or if more frequent or responsive assistance is required, the need for active overnight support can be reassessed by a future decision-maker. Presently, the information before me does not indicate that active overnight support is required.
11. Overall, I consider that 24/7 support worker assistance at a 1:1 ratio is reasonable and necessary, including inactive overnight support. Applying, the current NDIS Price Guide[27] I consider that these hours would be provided as follows:

(a) 9 hours per day of support worker assistance with self-care activities at the weekday daytime rate; > > (b) 2 hours per day of support worker assistance with self-care activities at the weekday evening rate; > > (c) 5 hours per day of community access support; > > (d) 8 hours of night-time sleepover support; and > > (e) All weekends and public holidays to be funded at the applicable rate.

12. This level of support worker assistance is necessary to address needs arising from impairments in relation to which Ms Salathiel meets the disability requirements.[28] This will support her goal of being comfortable, safe and supported in her home and accessing the community without the barriers that she is currently experiencing.[29] This level of support worker assistance will improve Ms Salathiel's social and economic participation.[30] Support worker assistance is effective and beneficial as supported by evidence of good practice from appropriately qualified allied health practitioners.[31] The support workers are value for money relative to the benefits achieved.[32] I am not satisfied that there are alternatives that would achieve the same outcome at a substantially lower cost.[33] I do not consider that it is reasonable for these supports to be provided by Ms Salathiel's partner.[34] These types of assistance are NDIS supports under items 14, 23 and 27 of Schedule 1 of the Transitional Rules. They are not excluded under schedule 2 of the Transitional Rules.[35] Support worker services are most appropriately funded under the NDIS as they relate directly to the Applicant's disability needs and are not more appropriately provided under another system of support.[36]

Support request (b): Low-cost assistive technology

1. The Applicant seeks a funding allocation of $2,500 for low-cost assistive technology, including maintenance and repair. The parties' position on this issue seems to be somewhat unclear. Prior to the hearing the Agency submitted:

The Applicant is currently funded $9,997.36 for assistive technology and $925.02 over the course of a six-months NDIS plan, which includes supports to repair and maintain assistive technology, short-term rental and trial of the Applicant's assistive technology supports. The Respondent contends there is limited evidence to determine why the current funding is insufficient for the Applicant's needs. > > The Respondent contends that the Tribunal cannot be positively satisfied that paragraphs 34(1) (c) and (d) of the NDIS Act are met.[37]

The Agency points to a line item of over $10,000 already allocated for assistive technology and minor repairs. We submit that this figure is largely the result of administrative error. Specifically, it includes a stated support for an exercise machine that was purchased under a prior plan and does not need to be purchased again. > > The request for $2,500 is proportionate and targeted. It covers Claire's ceiling hoist and other essential equipment that require maintenance. Obviously, the cost of a repair Depends on the nature of the malfunction, and we are anticipating malfunctions that have not yet occurred. > > A modest low-cost AT budget of $2,500 is both reasonable and necessary, and far more accurate than leaving an erroneous $10,000+ line item in the plan.[38]

3. Following the hearing, the Agency closing submissions say:

Ms Salathiel's current plan includes funding of $925.02 for a period of 6 months for "assistive technology maintenance, repair and rental, which equates to $1,850.04 over a 12-month period. > > Evidence > > Ms Salathiel has not provided any quote for repairs and maintenance for her ceiling hoist or other essential equipment. > > Contentions > > In the absence of evidence that the current funding is insufficient to meet the cost of assistive technology maintenance, the Agency submits that the Tribunal could not be positively satisfied that the requested amount of $2,500 for maintenance costs satisfies the criteria in s34(1)(c) or (d) of the NDIS Act.[39]

4. The Applicant's closing submissions in reply do not add anything further on this issue and Ms Salathiel relies on her pre-hearing submissions.
5. In her 2024 functional capacity assessment, Ms Paul recommends including funding for several assistive technology items including maintenance and repairs for current equipment, being:
   • Powered wheelchair;
   • Pressure cushion;
   • Mechanical bed;
   • Air/foam mattress;
   • Commode;
   • Hoist slings; and
   • Ceiling hoist tracking and system.[40]
6. In the same table, Ms Paul's clinical justification for this funding is that 'Claire requires ongoing use of her existing AT. Funding for repairs and maintenance is required to ensure her equipment is in good working order and is safe to use. These items are required to be reviewed yearly.' In terms of costs, Ms Paul says that these are 'To be quoted. Repairs as required. Maintenance yearly'.
7. Following these recommendations, the Agency appear to have made provision for assistive technology in the Applicant's SPS which commenced on 15 August 2024. According to an email from an Agency officer at this time, the 'breakdown' of the relevant plan funding components were as follows:

Consumables: > > Low-cost Personal Mobility and vision related items x $1500 * Replacement electronic portable handheld magnifier. > > Basic transfer equipment -$300 * Hoist sling replacements. > > Stated budgets: > > Assistive Technology Maintenance, Repair and Rental - > > Repairs and Maintenance - Other AT - $300.00 > > Repairs and Maintenance - Electric Bed - $350.00 > > Repairs and Maintenance - Transfer AT - $400.00 > > Repairs and Maintenance - Wheeled Mobility Minor - $800.00 > > ... > > Assistive technology - > > Floating funding support Longest Rehamoto LGT-5100d Active Passive Trainer x 1 = $12,474.99.[41]

8. In an email dated 31 July 2025, the Applicant stated that:

A low-cost assistive technology repairs and maintenance budget serves the purpose of ensuring that, if there is a breakdown of assistive technology or other disability related equipment, repair or replacement of parts can be facilitated quickly. For example, the power wheelchair will typically require some maintenance over a 12-month period - for example, new electric batteries, new tires, or a fix for an unexpected breakdown caused by damage to electronic parts or wires. The electric ceiling hoist also has a history of unexpectedly needing repairs at least once a year. Sometimes the repair itself takes some weeks and a stand-in device needs to be rented. There is also an electric specialty medical bed, disability-related exercise equipment, and a manual commode chair. Having a small budget available for such circumstances reduces the additional support-worker hours that can be caused by faulty equipment.[42]

9. In Ms Houston's report of 1 August 2025, she states that:

Depending on how her NDIS plan is structured, whether or not the approved amount for AT maintenance and repairs are for low cost AT items, and larger costs (>$1500) requires a quote that would be approved on a quote by quote basis, then there is no change to the existing approved AT funding. However, if it has to include all maintenance and associated costs, eg. with hire of replacement item in the interim, then the amount to be funded needs to be adjusted.

10. The Applicant's most recent SPS, as varied on 19 August 2025 includes the following:

Assistive Technology > > Funding amount: $9,997.36 > > This funding component is self-managed. > > Funding period schedule > > Funding period Months Funding amount > > 22/07/2025 to 21/01/2026 6 months $9,997.36 > > Included support category > > This funding component is Stated. > > This funding amount can be used for the following support category: > > • Assistive Technology > > Support details > > This funding can be used to buy the following supports: > > Assistive Technology > > Assistive technology is equipment, technology and devices that help you do things you can't do because of your disability. Or things that help you do something more easily or safely, such as wheelchairs or vehicle modifications. > > Mid cost AT between $1,500 and $15,000 per item > > Assistive Technology Maintenance, Repair and Rental > > Funding amount: $925.02 > > This funding component is self-managed. > > Funding period schedule > > Funding period Months Funding amount > > 22/07/2025 to 21/10/2025 3 months $462.51 > > 22/10/2025 to 21/01/2026 3 months $462.51 > > Any unspent funding will rollover to the next funding period. > > Included support category > > This funding component is Stated. > > This funding amount can be used for the following support category:

• Assistive Technology Maintenance, Repair and Rental

Support details > > This funding can be used to buy the following supports: > > Assistive Technology Maintenance, Repair and Rental > > Supports to repair and maintain Assistive technology. This also includes short-term rental and trial of your Assistive technology supports. > > Maintenance and repairs of AT supports

1. Based on the current SPS, it appears that the Applicant can spend $9,997.36 over the next 6 months on purchasing assistive technology. The Applicant can also spend $462.51 every 3 months on maintenance, repairs and trials of assistive technology. As I understand it, the Applicant is instead requesting to be able to spend $2,500 per year on maintenance, repairs and trials of assistive technology. The Applicant is not seeking $9,997.36 of funding for the purchase of new assistive technology in the next six months.
2. In my view, it is reasonable to reallocate some of the funding for the purchase of assistive technology to the budget for maintenance and repairs. This is consistent which the principles that in the NDIS Act that the planning process should, so far as reasonably practicable, be directed by the participant,[43] and be underpinned by the right of the participant to exercise choice and control over his or her life.[44]
3. I do not consider that specific quotes need to be provided to justify reallocation of this funding. Much of this funding will necessarily be in response to unexpected equipment failure. It is ordinary for provision to be made for both scheduled and unscheduled maintenance expenses. This is what has been done in the Applicant's previous SPS's without any additional requirement for quotes. A provision of $2,500 per year does not appear to me to be unrealistic. This is $650 more per year than what was included in the Applicant's 2024 SPS.
4. I am however concerned that removing the $9,997.36 allocated for purchasing assistive technology could leave the Applicant without the flexibility to purchase new equipment. Reducing the funding allocation for the purchase of assistive technology by $650 to $9,347.36 per year will provide the same overall funding to the Applicant but with improved flexibility in how this funding can be used.
5. In my view, such a change can be approved by a way of a variation under section 47A of the NDIS Act. Specifically, the permitted variations under section 47A (1A) with regards to old framework plans include:

(ab) if the statement of participant supports included in the plan specifies one or more funding component amounts - a variation of the categorisation of the reasonable and necessary supports, specified under paragraph 33(2)(b), into one or more groups of supports; > > (ac) for the purposes of dealing with a variation covered by paragraph (ab) of this subsection - a variation of one or more funding component amounts, or the number of those amounts, specified in the statement of participant supports, other than a variation that would result in an increase in the total funding amount for the plan;

6. I consider that is appropriate to vary the categorisation of $650 per year which is currently allocated to the funding component 'Assistive Technology' and to reallocate this to the funding component 'Assistive Technology Maintenance, Repair and Rental'. This variation does not result in an increase in the total funding amount for the plan. I consider that I am authorised to make this variation under section 47A of the NDIS Act and section 54 of the ART Act which provides:

Tribunal can exercise powers of decision-maker > > For the purposes of reviewing a reviewable decision, the Tribunal may exercise all the powers and discretions that are conferred on the decision-maker by an Act or an instrument made under an Act.

1. The Applicant seeks funding of $4,887.24 per year to use six Microlax enemas per day. This is based on the Applicant's lived experience and the recommendation of the Applicant's registered continence nurse Ms Rim who says:

People with a neurogenic bowel, with or without altered sensation, and in Claire's case altered co-ordination of the muscles and control of defecation, almost always require a structured bowel regime to ensure "social continence". Without a strict bowel regime Clarie would be incontinent of faeces. In fact, due to sticking to her strict regime Claire tends to only suffer from a bowel accident about once every 6 months. Social continence is a term used to describe maintaining faecal continence due to adhering to a bowel regime. > > In the past Claire has tried many other options; Peristeen bowel washouts and has also tried taking aperients, both did not allow Claire to gain "social continence". There are many and varied bowel regimes and in Claire's case she aims for the consistency of her stool to be on the firm side BSC (Bristol Stool Chart) 2 to 4 to prevent faeces from leaking out of her rectum. Claire cannot feel faeces in her rectum if it is not firm so has an increased chance of leaking (bowel accident) if her stool is softer than BSC type 4. Taking a high fiber diet will soften the consistency of Claire's stool and place her at a greater risk of bowel accidents. What is considered normal regarding frequency of bowel actions is 3 times a day to 3 times a week, also to ensure faecal continence Claire needs to open her bowels twice a day. Claire uses the Microlax enema's to time her bowels to open while her support workers are present. Bowel accidents emotionally are even more difficult to deal with than urine accidents and they also cause more skin integrity damage. > > Almost all people with a neurogenic bowel need a strict bowel regime to maintain "social continence", in fact many people on an individualised bowel regime have bowel accidents more often than Claire. Microlax enema's are the gentlest rectal stimulants that Claire can use and are needed for her to ensure "social continence". Long term use of aperients and rectal stimulants are not recommended but people with a neurogenic bowel have no other choice unless they accept constipation and eventually impaction (very dangerous complication and can cause the bowel to rupture) or faecal incontinence into a continence pad.

... I am concerned about the twice daily assisted bowel evacuation. It is outside the scope of my expertise, however, when someone has to rely on enemas for bowel management twice a day and it can take up to 3 hours each time, it raises a few questions for me, 1) is it necessary for the Applicant to open her bowel twice a day and 2) if yes, what are the triggering mechanisms that are available, as I usually look at the product use guide and in this case, the product information advised that "MICROLAX® Enema has a low risk of habituation so it can be used every day for a short period. However, it is not intended for long-term use. If you are constipated every day over a period of time, consult a doctor who will investigate the causes and propose the best possible alternative treatment."[45]

3. I note that the Agency only relied on the opinion of Ms Houston as a secondary submission. For completeness, I confirm that I prefer the opinion of Ms Rim as a registered continence nurse and agree with Ms Houston that this is outside Ms Houston's scope of expertise.
4. The Agency's primary submission relies on the operation of the Transitional Rules:

... the Tribunal's first task is to consider whether the support is not an NDIS support by the operation of Schedule 2 to the Transitional Rules. It is only if the requested support does not fall within the scope of Schedule 2 will it be necessary for the Tribunal to consider whether the support falls within the ambit of Schedule 1 to the Transitional Rules. > > The Agency submits that the requested Microlax enemas fall within the scope of Items 12(a) and 12(d) of Schedule 2 of the Transitional Rules. > > Item 12(a) of Schedule 2 to the Transitional Rules is stated to include: > > the diagnosis, early intervention and clinical treatment of health and dental health conditions, including ongoing or chronic health conditions; > > Item 12(d) is stated to include: > > pharmaceuticals (including prescription medicines and non-prescription medicines), biological medicines, vaccines, sunscreens, weight loss products, vitamins, sport and athletic supplements, and homeopathic medicines; > > Dr Aileen Shuey's report, dated 16 February 2025, contains a list of the Applicant's medications, which includes the Microlax enemas. > > The Agency submits that Microlax enemas are properly characterised as a clinical treatment for an ongoing chronic health condition (constipation) and therefore falls within Item 12(a) of Schedule 2. Further, the enemas are also properly characterised as a non-prescription medicine and therefore falls within Item 12(d) of Schedule 2. > > Accordingly, the requested support is not an NDIS support as required by s34(1)(f) of the NDIS Act and cannot be included in Ms Salathiel's plan.[46]

Claire's continence management is clinically complex and carefully structured. The continence nurse reports make clear that: > > ● Claire's current bowel routine is timed to coincide with the presence of a support worker, because she cannot manually stimulate her own bowels. > > ● If 1:1 active attendant care support is funded, the need for continence consumables can reasonably be reduced. But unless and until that support is approved, consumables remain essential. > > We contend this support is fundable under the NDIS Act because: > > 1. It is a lower-cost substitute for transanal irrigation equipment, which is itself an NDIS-fundable support. > > 2. It does not require a prescription. > > 3. It is designed for ease of use by support workers, given Claire's inability to self-administer bowel stimulation. > > The consumables requested are therefore directly connected to Claire's functional impairment, represent value for money, and are consistent with clinical recommendations.[47]

6. In reply to the Respondent's closing submissions, the Applicant further submitted:

We contend that micro lax enemas are not a pharmaceutical for the treatment of constipation, but in Claire's usage, they are a continence management device that compensates for neurological dysfunction of the bowel due to Cerebral Palsy. As such, they do not fall within Items 12(a) and 12(d) of Schedule 2 of the Transitional Rules. Rather, they should be considered a disability-related health support.[48]

7. In support of the Agency's contention that schedule 1 of the Transitional Rules is only to be considered if a support does not fall with the scope of schedule 2, the Agency cites the Tribunal's decision in FSWN in which Senior Member French said:

Having regard to the provisions of the principal Act as amended, the Transitional Rules, and the Supports Rules, the structure of the enquiry involved in this review involves two stages and the following steps: > > Stage 1 Ascertain if the requested support is an "NDIS" Support as defined. This inquiry is focused on the support, not the participant. > > Step 1: Determine if the requested support is of a character that falls within the scope of a category of support specified in column 1 of the Table to Schedule 2 of the Transitional Rules by reference to the description of supports that fall within the scope of that category contained in column 2 of the Table. > > If the answer to that question is "yes", then stage 1 is complete. The requested support is not a NDIS Support and cannot be approved for inclusion in a SoPS because of s 34(1)(f) (subject to a replacement support determination being made, as to which see following). > > If the answer to that question is "no", then proceed to step 2 of stage 1: > > Step 2: Determine if the requested support is of a character capable of falling within the scope of a category of support specified in column 1 of the Table to Schedule 1 of the Transitional Rules by reference to the description of supports that can fall within the scope of that category contained in column 2 of that Table. > > If the answer to that question is "no", then the requested support will not be a NDIS Support and cannot be approved for including in a SoPS because of s 34(1)(f). > > If the answer to that question is "yes", then the requested support will be a NDIS Support that is capable of being approved for inclusion in a SoPS by operation of s 34(1)(f), and stage 2 of the enquiry is reached. > > Stage 2: Ascertain if the requested support satisfies each of the other criteria specified in s 34(1)(aa) to (e) and the associated Supports Rules. There is some overlap of the stage 1 and 2 enquiries. However, in my opinion stage 2 is primarily a participant focused enquiry. That is, it seeks to establish the benefit of the support to the participant. To the extent that stage 2 also requires examination of the efficacy of the support per se it adds nothing to the outcome of the stage 1 enquiry in my opinion [49]

8. In practice, I have not found that this approach can always be applied in a straightforward way. There are situations is in which it is not entirely clear whether a support falls with a schedule 1 or schedule 2 of the Transitional Rules. In some situations, I have also found that the Support Rules (which also remain in force) of assistance in trying to resolve any ambiguities.
9. The approach in FSWN set out above was adopted by Deputy President Dordovic in the Guidance and Appeal Panel (GAP) decision in Hyde.[50] However, in this multi-member GAP decision, the majority stated at paragraph 79 that:

... for a support to be a 'NDIS support' within the meaning of s 34(1)(f), the requested support must: > > (a) fall within one of the categories in Schedule 1; and > > (b) not fall within one of the categories in Schedule 2.

10. I will apply the approach taken by the GAP majority in Hyde. Item 16 of schedule 1 of the Transitional Rules states that 'Disability-related health supports' are NDIS supports unless otherwise provided. Supports in this item are described as:

Health supports that relate to the functional impact of a participant's disability. > > This includes the following: > > (a) supports, services and assistive products to manage dysphagia, diabetes, > > continence, wound and pressure care, respiration, nutrition, podiatry and foot > > care, and seizures;

11. In my view, Microlax enemas are disability-related health supports as they do relate to the functional impact of the Applicant's disability. The applicant experiences neurological, sensory and physical impairments caused by her cerebral palsy, specifically her neurogenic bowel, altered sensation, and altered co-ordination of the muscles which control defecation. The Microlax enemas as assistive products to manage continence which fall within item 16(a) of schedule (1).
12. For similar reasons, I do not consider that the Microlax enemas fall within item 12(a) of schedule 2 of the Transitional Rules. This items states that the following health supports are not NDIS supports:

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

13. I do not consider that the Microlax enemas are clinical treatment of a chronic health condition. The Applicant's use enemas are directly related to impairments arising from her cerebral palsy and are therefore correctly considered a disability related health support, rather than a more general health support.
14. However, item 12(d) of schedule 2 of the Transitional Rules also states that the following health supports are not NDIS supports:

(d) pharmaceuticals (including prescription medicines and non-prescription medicines), biological medicines, vaccines, sunscreens, weight loss products, vitamins, sport and athletic supplements, and homeopathic medicines;

15. According to the Therapeutic Goods Administration (TGA) website, Microlax enemas were registered as a non-prescription medicine in 1991.[51] In my view, Microlax enemas are therefore excluded under item 16(d) of schedule 2 of the Transitional Rules. This is so even though they would otherwise be considered a disability-related health support. As the majority said at paragraph 80 in Hyde, 'Schedule 1 must be read subject to the exclusionary descriptors in Schedule 2.'
16. I have also had regard to the NDIS Continence supports guideline which states:

What do we mean by continence supports? > > Continence supports are products, or help from someone, to manage incontinence. Incontinence is the inability to control when you have to go to the toilet. It's the accidental or involuntary loss of: > > • urine from your bladder - known as urinary incontinence > > • faeces from your bowel - known as faecal incontinence. > > Incontinence can range from mild to severe. It may be a small bladder or bowel leak. Or complete loss of bladder or bowel control. > > If you have incontinence, you should talk to your doctor first. They can link you to health services that are paid through Medicare. You can continue to access health services from Medicare, even when you are a NDIS participant. Learn more about the help you can get through the health system or other services. > > Continence supports are what we call disability-related health supports. We can only fund these NDIS supports if they relate to your disability and help you do activities involved in day-to-day life. Learn more about what we mean by disability-related health supports. > > Continence products can include things like pads, nappies and bed protection. If you have a catheter or stoma, it can be products you need, such as bags for waste, bottles and straps. > > What help can you get to manage continence through the health system or other services? > > The Australian health system provides continence support services that are available to everyone, whether or not they have a disability. > > The Government and community services must make sure all Australians, including people with disability, have access to their supports. We call these supports mainstream and community supports. The NDIS was set up to work alongside government and community services, not replace them. > > Learn more about Mainstream and community supports. > > What support can you get through the Continence Aids Payment Scheme? > > If you have permanent and severe incontinence, the Continence Aids Payment Scheme may help you pay for some of the continence products you use. If you're eligible for the Continence Aids Payment Scheme, you'll get a yearly payment to help you meet your continence support needs. Learn more and apply for this payment at Continence Aids Payment Scheme. > > If you have continence supports funded in your NDIS plan, you won't generally be eligible for funding under the Continence Aids Payment Scheme.[52]

17. The Applicant's eligibility for the Continence Aids Payment Scheme (CAPS) is not a matter for the Tribunal. However, I note that Cerebral Palsy is listed as an eligible neurological condition for CAPS. I also note that the CAPS payment rate for 2025-26 is $717.10 which is less than the Applicant's current costs for enemas.[53] However, as the Applicant has indicated above, with increased 1:1 support worker assistance, the Applicant's use of enemas may decrease.
18. As the Microlax enemas are a non-prescription medicine they are excluded by item 16(d) of schedule 2 of the Transitional Rules. I therefore cannot conclude that these products are an NDIS support for the purposes section 10 and 34(1)(f) of the NDIS Act.

1. The Applicant is seeking 41 hours per year for occupational therapy. Ms Salathiel's current plan includes 12 hours of occupational therapy over a six-month period. The Agency maintains that 24 hours per year of occupational therapy per year is sufficient. The Agency summarises the relevant evidence as being:

Ms Kimberly Paul recommended 41 hours of occupational therapy is required to allow for 10 hours for an assessment for a new commode, 15 hours for an assessment for a SDA application, 6 hours for an assessment for low-level assistive technology and 10 hours for a work-place assessment. > > Ms Houston opines that the current funding of 24 hours per year of occupational therapy is sufficient on the basis that:

a) an SDA application is not recommended due to Ms Salathiel's strong preference to remain in her current home; and,

b) that a workplace assessment and recommendations can be organised through the Department of Social Services with the assistance of Ms Salathiel's support coordinator.

Ms Houston recommends that occupational therapy should focus on Ms Salathiel's need for alternative continence items, reviewing her home environment, reviewing relevant strategies or assistive technology solutions for independent community access and review of low-cost assistive technology solutions and any replacement equipment such as her commode.[54]

1. Ms Salathiel does not maintain that all of the specific assessments recommended by Ms Paul are still required, but instead submits that:

Given the good medium-term prospects for Claire to reduce reliance on disability support workers - which would reduce long-term costs to the Scheme - a conservative approach would ensure there is sufficient occupational therapy funding to help Claire work towards this goal, with enough flexibility that problems which might arise can be solved without requiring recourse to the Agency or the Tribunal. > > Assuming that Request One is granted, high-priority occupational therapy needs include: > > ● Assessment for, prescription, and trialling of a new commode chair (or similar equipment) that meets current assisted toileting needs; > > ● Assessment for, prescription, and trialling of a toileting option that Claire can self-transfer onto, with practice, as her function hopefully improves over time; and > > ● Orientation and mobility assessment and training to make her safer, more confident, and more independent as a pedestrian, with the aim of reducing reliance on support workers in the long term. > > If these needs are readily met, and equipment trialling goes well, then Claire will simply leave the occupational therapy funding unspent.[55]

2. I note that 'Request One' above refers to the request for 24/7 support worker assistance including active overnight care. I have partly approved this request, having found that 24/7 support worker assistance is reasonable and necessary, but that inactive overnight care should be trialled.
3. The Agency submits that:

Having regard to the available evidence, in particular that Ms Salathiel has a strong preference to remain in her current home, and does not wish to pursue an SDA application, the Agency submits that the Tribunal should not be positively satisfied that 41 hours of occupational therapy support meets the criteria in 34(1)(c), and (d) of the NDIS Act.[56]

4. In my view, 24 hours of occupational therapy per year remains reasonable and necessary. I am not satisfied that additional hours are required. The recommendations made by Ms Paul need revisiting now that an assessment for specialist disability accommodation is no longer sought, and that Ms Salathiel will have 24/7 support worker assistance. Any reconfiguration required to accommodate an inactive overnight support worker may require occupational therapy input. However, this input may be able to be achieved within the current allocation of hours. Based on the information available to me, I am not satisfied that it is reasonable and necessary to include an additional 17 hours of occupational therapy per year in Ms Salathiel's SPS.

1. Ms Salathiel seeks $5,352 per year for transport funding. The Applicant submits this is required because:

Claire travels for volunteering, Professional development, And hopefully soon for her ... business, To the following locations At least once a week: > > Lysterfield > > Wandong > > Cardigan > > A train, if it is running, can only take Claire part of the way. A taxi is required for some or all of the journey.[57]

Ms Salathiel is currently funded for Level 2 transport, the Applicant is funded $2,676.00 per year for level 2 transport, which is provided for participants who are currently working or studying part-time (up to 15 hours a week), participating in day programs and for other social, recreational or leisure activities. Ms Salathiel is seeking additional funding to cover the cost of taxis for part of her journey to locations in Lysterfield, Wandong and Cardigan, where she currently travels to weekly for volunteering and professional development but hopes to soon travel for her business. > > ... > > Apart from the information contained in the Applicant's pre-trial submission about her travel to Lysterfield, Wandong and Cardigan, there is no other evidence as to such as a quote or invoice, to explain why $5,352.00 is required for her transport needs.[58]

3. Section 6(2)(b) of the National Disability Insurance Scheme (Old Framework Plans) Determination 2024 (Old Framework Determination) specifies how to work out funding for recurring transport support, being:

(i) unless subparagraph (ii) or (iii) applies - $1,784; > > (ii) if subparagraph (iii) does not apply and the participant is working or studying (or both) for less than 15 hours each week, is attending day programs, or requires the supports for social, recreational or leisure activities - $2,676; > > (iii) if the participant is working or studying (or both) for at least 15 hours each week - $3,456.

4. Based on the information before me, I am satisfied that Ms Salathiel is eligible for transport funding under subparagraph (ii) above. I am not satisfied that subparagraph (iii) applies to Ms Salathiel.
5. I have also considered that transport funding is covered in section 12 of the Specific Supports guideline which says:

A participant's transport supports may also include the reasonable and necessary costs of taxis or other private transport options for participants who are not able to travel independently, as well as transport to and from school for students. > > ... > > A support will not be provided or funded under the NDIS if it relates to day-to-day living costs (rule 5.1(d) of the Supports for Participants Rules). > > Day-to-day living costs may include rent, groceries or utility fees, however, this is not an exhaustive list. Transport is an incidental cost of everyday life for most people and, therefore, can also be considered to be a day-to-day living cost. > > However, the NDIS may fund day-to-day living costs that are incurred by a participant solely and directly as a result of their disability support needs (rule 5.2(a) of the Supports for Participants Rules). > > These additional living costs (i.e. those incurred by a participant solely and directly as a result of their disability support needs) may be funded under the NDIS if they are NDIS supports that meet the NDIS funding criteria. > > ... > > When considering whether a proposed transport support represents value for money, the NDIA will compare the costs of transport to the overall costs of alternative supports which may provide a similar level of independence or reduce a participant's future needs for supports. For example, vehicle modifications and driving supports. > > The NDIA may also consider what options may be available for the participant in their local community, or whether funding other supports has the potential to build a participant's capacity to engage in local community activities. > > Transport should only be funded where it has been determined to be reasonable and necessary, where it is an additional cost incurred solely and directly as a result of a participant's disability support needs and, where ancillary to another funded support, it is a cost which the participant would not otherwise incur. > > It does not follow, merely because transport is ancillary to a funded support, that it should be funded**.** [59]

6. It is not clear to me how the Applicant has arrived at the figure of $5,352. This figure does not appear to be based on any specific trip logs, invoices, or recommendation from an allied health professional. I note that the Applicant's plan which commenced 15 Sept 2021 included transport funding of $5,352. However, it is important to note that this was a two-year plan.[60] Subsequent 12-month plans included transport funding of $2,676.[61] On balance, I agree with the Agency that there is not sufficient information for me to be satisfied that it is reasonable and necessary to include $5,352 per year for transport funding in the Applicant's SPS.

1. The Applicant's current SPS includes a reassessment date of 21 January 2026, being 6 months after this plan commenced. Ms Salathiel seeks a reassessment date which is 24 months after commencement of a new plan, saying:

On our reading of the legislation, there is no discretion to simply select an arbitrary short date. > > We contend that when setting a reassessment date under s 33(2)(c), the Agency (and the Tribunal on review) must consider: > > ● The principles relating to plans (s 31); > > ● The objects and general principles of the Act (ss 3-4). > > We advocate for a reassessment date set at 24 months, for the following reasons: > > Time is required for rehabilitative benefit. > > To the extent that the new plan includes the requested supports, those supports need at least two years to show rehabilitative benefit. Claire has good prospects of improved bladder and bowel function, and increased toileting independence, but these are gradual goals. Claire does have good prospects of improved bladder and bowel function, and good prospects of increased toileting independence, but it would be counter-productive to create any sense that Claire has a short deadline to work towards these goals. > > Risk of reversal on reassessment. > > The Tribunal decision will not create binding precedent for Claire's future plans. The Agency is therefore likely to revert Claire's plan to a lower and insufficient level of funding as soon as reassessment is due. A 24-month duration maximises the chance that the benefits of the plan are realised before the Agency makes changes. > > Administrative review must be meaningful. > > A reassessment date shorter than 24 months would undermine the purpose of Tribunal review and deter participants from exercising their review rights. Claire first requested an internal review under s 100 in August 2024. The Agency did not conduct the review, and the decision was merely "deemed" to be upheld . Since applying to the Tribunal, things have also moved slowly. There may be good reasons, but the reality is that a participant is likely to wait over a year for correction of an error. If the Tribunal's decision is then effective for only a few months, the right of review is hollow.[62]

2. During the hearing, the Agency maintained that a 6-month plan was appropriate given prior issues with funds needing to be replenished early. Following the hearing, the Agency revised their position and submitted that:

... a 12-month plan re-assessment date is more appropriate than as 24-month plan reassessment date as the shorter timeframe will allow for the Agency and Ms Salathiel to confer and consider/reassess whether any supports to be implemented as a result of this hearing remain reasonable and necessary.[63]

3. Section 33(2)(c) of the NDIS Act requires that a participant's SPS must include the date by which, or the circumstances in which, the Agency must reassess the plan. The NDIS Act does not include any other specific requirements with regards to the appropriate date or circumstances in which a reassessment must occur. The Creating your plan guideline states the following:

How long will your plan go for? > > Everyone has different goals, living situations, and circumstances. So, we'll work with you to decide how long it will be before we create your next plan. We think about how long you want your plan to go for. We also think about your situation and what plan length will best meet your needs. > > If your living and support needs are stable and not likely to change significantly > > Your plan will generally go for: > > • 5 years if you're aged 9 and over > > • 2 years if you're younger than 9. > > With a longer plan: > > • you can plan ahead, access supports that meet your needs now, while also working towards your goals over time. This is because you know you have funding for a longer time > > • it will generally be a longer time before your next plan reassessment, which should mean a smoother experience for you, your family and providers as we won't need to meet with you about your plan as much, unless you want to. > > Longer plans give you more stability by giving you certainty about your funding over a longer period of time. > > If you need a shorter plan > > We know that shorter plans are needed in some situations. > > ... > > Participants aged 9 and over > > Your plan will generally go for 2 years if: > > • you have early intervention supports and we expect they'll work for you. This means you won't generally need NDIS supports after early intervention supports have finished. We may check in with you during your plan. We may also need to check your eligibility to make sure you continue to meet the eligibility criteria to be a participant. You'll have time to give us more information if you feel you still need NDIS supports. > > • you have a degenerative condition, like motor neurone disease or muscular dystrophy, or a terminal illness and disability. This is because we expect your needs to change. This doesn't include younger people in residential aged care. > > Your plan will generally go for one year if: > > • you have a positive behaviour support plan with restrictive practices. > > ... > > All participants > > Your plan length may be different if: > > • you're going to be discharged from hospital. In this case, we may provide you with a temporary plan to support your transition out of hospital > > • you have a life milestone coming up, like starting or finishing school or moving out of home.[64]

4. I note that there does not appear to be any opinion from an allied health professional regarding Ms Salathiel's plan duration.
5. On balance, I agree with the Applicant that a reassessment date of 24 months is appropriate. This is more consistent with the Agency's operational guideline and the principles relating to plans. It will provide the Applicant with a period of stability in which to adjust to the use of her supports. I would note however, that the Agency is not prevented from conducting a reassessment at any time. The decision of the Tribunal does not create bind future decision-makers who will always need to consider the circumstances and criteria at the time of their decision. The Applicant is also able to request a reassessment if her circumstances change, for example if the trial of inactive overnight support demonstrates that this support in not effective. In this way, neither party is disadvantaged by a reassessment date being set at 24 months.

1. The decision under review, being the decision of the Chief Executive Officer of the National Disability Insurance Agency to approve a statement of participant supports under sections 33(2) and 100(6A) of the National Disability Insurance Scheme Act 2013 (NDIS Act):

(a) made on 26 November 2024; and > > (b) as updated on 22 July 2025 and 19 August 2025;

is set aside under section 105 of the Administrative Review Tribunal Act 2024 (ART Act) and remitted for reconsideration with the directions that:

(c) the statement of participant supports include sufficient funding for 24/7 support worker assistance, at a 1:1 ratio, including inactive overnight support;

(d) the statement of participant supports be varied such that $650 per year is reallocated from the funding component 'Assistive Technology' to the funding component 'Assistive Technology Maintenance, Repair and Rental';

(e) the date by which Agency must reassess the Applicant's plan is 24 months from the date that the above supports are added to the Applicant's plan;

(f) the remaining aspects of the statement of participant supports, including self-management, remain unchanged.

[1] The document numbering in the JTB is adopted throughout these reasons.

[2] Which are all the records that the Agency considered when making the decision under review as required by section 23 of the ART Act.

[3] I have used a similar overview in other decisions.

[11] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

[12] Respondent's closing submissions, page 11.

[13] JTB, page 67 and 68. Emphasis in original.

[14] JTB, page 294. Emphasis in original.

[24] Hearing transcript, pages 26 to 28.

[26] Respondent's closing submissions, page 3.

[27] NDIS Pricing Arrangements and Price Limits 2025-26, Version 1.1, published 14 October 2025.

[28] NDIS Act, section 34(1)(aa) and Support Rules, rule 5.2.

[35] Sections 10 and 34(1)(f) as amended.

[36] Section 34(1)(f) prior to amendment.

[37] Respondent's Statement of Facts, Issues and Contentions, page 10.

[38] Applicant's pre-hearing submissions, page 16.

[39] Respondent's closing submissions, page 11.

[46] Respondent's closing submissions, page 13. Notes omitted.

[47] Applicant's pre-hearing submissions, page 16. Emphasis in original.

[48] Applicant's closing submissions, page 5.

[49] FSWN and National Disability Insurance Agency [2025] ARTA 114, at [43].

[50] Chief Executive Officer, National Disability Insurance Agency and Hyde (Guidance and Appeals Panel) [2025] ARTA 2597, at [9].

[51]https://www.tga.gov.au/resources/artg/14480

[52]NDIS Operational guideline: Continence supports, published 07 April 2025, page 2 and 3. Notes and hyperlinks omitted.

[53] https://www.health.gov.au/our-work/continence-aids-payment-scheme-caps

[54] Respondent's closing submissions, pages 13 and 14. Notes omitted.

[55] Applicant's pre-hearing submissions, page 17.

[56] Respondent's closing submissions, page 14.

[57] Applicant's pre-hearing submissions, page 18.

[58]Respondent's closing submissions, page 14. Notes omitted.

[59]NDIS Operational Guideline: Including Specific Types of Supports in Plans, published 19 November 2024, pages 8 and 9.

[62] Applicant's pre-hearing submissions, pages 18 and 19. Emphasis in original.

[63] Respondent's closing submissions, page 15.

[64] NDIS Operational Guideline: Creating your plan, published 23 October 2025, page 31. Emphasis in original.