2. The SoPS incorporated into the Applicant's current Plan has a total budget of $114,572.55 for funded supports, for the period 26 June 2025 to 25 December 2025, which is divided into 5 categories.
3. In the "Core Flexible" category total funding of $98,197.01 is available in the amount of $49,098.51 and $49,098.50 in respect of the 3-month intervals 26 June 2025 to 25 September 2025 and 26 September 2025 to 25 December 2025. This funding component is expressed to be "flexible" and is available for use for the following supports: assistance with daily life, assistance with social, economic and community participation, consumables and transport.
4. In the "Assistive Technology" category, total funding of $7,500.00 is available for the 3-month period 26 June 2025 to 25 September 2025 for "mid-cost assistive technology with a price range of $5,000.00 to $7,500.00." An "Assistive Technology advisory" is required to help choose and set up this Assistive Technology. The funding for this support is expressed to be a "stated support" meaning that it can only be used for the purpose stated.
5. In the "choice and control" category, funding of $859.05 is approved for the costs of a Plan Manager. This funding is expressed as a "stated support" meaning it can only be used for this purpose.
6. In the "Improved Daily Living Skills" category, total funding of $6,013.69 is available, half of which is available in each of 2 3-month intervals. This funding is for an occupational therapist and physiotherapist to assess and provide strategies to increase the Applicant's functional capacity. This funding is expressed as a "stated support" meaning it can only be used for this purpose.
7. In the "support coordination and psychosocial recovery coaches" category, total funding of $2,002.80 is available, half of which is available in each of the 2 3-month intervals. This funding is for support coordination. This funding is expressed as a "stated support" meaning it can only be used for this purpose.

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.
2. Notable among these value statements for present purposes are the following:

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

(d) provide reasonable and necessary supports ... for participants in the National Disability Insurance Scheme;

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

4 General principles guiding actions under this Act

...

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

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

...

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

...

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

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

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

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

...

1. General principles guiding actions of people who may do acts or things on behalf of others

It is the intention of the Parliament that, if this Act requires or permits an act or thing to be done by or in relation to a person with disability by another person, the act or thing is to be done, so far as practicable, in accordance with both the general principles set out in section 4 and the following principles: > > ...

(b) people with disability should be encouraged to engage in the life of the community;

...

(d) the cultural and linguistic circumstances ... of people with disability should be taken into account;

(e) the supportive relationships, friendships and connections with others of people with disability should be recognised,

...

17A Principles relating to the participation of people with disability

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

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

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

(3) The National Disability Insurance Scheme is to:

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

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

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

...

31 Principles relating to plans

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

(a) be individualised; and

(b) be directed by the participant; and

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

(ca) where relevant, recognise and respect the relationship between the participant and their families and carers.

...

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

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

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

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

...

1. 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).
2. Section 33 of the NDIS Act sets out the matters that must be included in a NDIS Participant Plan.
3. Pursuant to s 33(1), the Plan must include the Participant's Statement of Goals and Aspirations.
4. 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.
5. 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.

Note: For the purposes of paragraph (aa):

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

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

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

34. Part 3 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Supports for Participants Rules) contains Rules for assessing proposed supports, including, relevantly, against the 'value for money' criterion in s 34(1)(c), and the 'effective and beneficial and current good practice' criteria in s 34(1)(d) of the Act.

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 (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);

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

(i) the comparative cost of purchasing or leasing the equipment or 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 (for example, some home modifications may reduce a participant's need for home care).

Effective and beneficial and current good practice

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

(a) published and referred 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.

1. Section 10 of the NDIS Act, as amended, and the Transitional NDIS Support Rules prescribe what is a NDIS Support for the purposes of s 34(1)(f). Rule 7 of the Miscellaneous Provisions Rules, in effect, preserves s 34(1)(f) as it stood prior to the 3 October 2024 amendments. In short summary, it provides that the decision maker must be satisfied that a requested support is most appropriately funded through the NDIS, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered as part of a universal service obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
2. For the purposes of paragraph 34(1)(aa) it is the disability requirements that are relevant in this review. In this respect, s 24 provides:

24 Disability requirements > > (1) A person meets the disability requirements if:

(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and

(b) the impairment or impairments are, or are likely to be, permanent; and

(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:

(i) communication;

(ii) social interaction;

(iii) learning;

(iv) mobility;

(v) self-care;

(vi) self-management; and

(d) the impairments or impairments affect the person's capacity for social and economic participation; and

(e) the person is likely to require NDIS supports under the National Disability Insurance Scheme for the person's lifetime.

(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require NDIS supports under the National Disability Insurance Scheme for their lifetime, despite the variation.

(3) For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require NDIS supports for the person's lifetime, despite the episodic or fluctuating nature of the impairments.

...

1. Rules 5.4 to 5.7 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (Becoming a Participant Rules) deal with the question of when an impairment is permanent or likely to be permanent for the disability requirement. Those Rules provide:

When is an impairment permanent or likely to be permanent for the disability requirements? > > 5.4 An impairment is, or is likely to be, permanent ... only if there are no known available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment. > > 5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve. > > 5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated. > > 5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.

2. Rule 5.8 of the Becoming a Participant Rules deals with the question of when an impairment results in a substantially reduced functional capacity to undertake a specified activity. That rule provides:

When does an impairment result in substantially reduced functional capacity to undertake relevant activities > > 5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities - communication, social interaction, learning, mobility, self-care or self-management ... - if its result is that:

(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participant in the activity or to perform tasks or actions required to undertake or participate in the activity; or

(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

1. Sub-section 33(5) prescribes what is required of the CEO when she approves a SoPS:

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

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

(a) Is the support that remains in dispute a NDIS Support as defined?

If the answer to this question is "no", the support cannot 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" with respect to the support that remains in dispute, then that support can be considered for approval in the Applicant's SoPS if it is a support that is necessary to address needs of the Applicant that arise from an impairment in relation to which he 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 his 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 he meets these disability requirements?

If the support in dispute does not meet the needs of the Applicant arising from an impairment in relation to which he meets the disability requirements then it cannot be considered for inclusion his SoPS because it cannot meet the requirements of s 34(1)(aa).

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

1. Relevantly to this case, Schedule 1 of the NDIS Supports Transitional Rules prescribes those supports that are NDIS Supports for the purposes of s 10 and paragraph 34(1)(f) of the NDIS Act. With respect to the support in dispute:
   • - Item 14 prescribes a "Daily personal activities" category, which is defined to be "supports that provide supervision or assistance with personal daily living tasks to help a participant to live as independently as possible in their own home and community" which includes "(a) assistance with eating and drinking, dressing and toileting and (d) maintaining personal hygiene, including showering, bathing, hair washing and drying, finger nail cutting and cleaning".
   • - Item 23 prescribes a "Household tasks" category, which is defined to be "supports that provide assistance with essential household tasks that a participant is not able to do themselves because of their disability. This includes the following: (a) meal preparation and delivery, (b) house or yard maintenance, (c) cleaning and laundry".
   • - Item 27 prescribes a "Participation in community, social and civic activities" category, which is defined to be "supports that assist a participant to take part in community, social, cultural and civic activities which includes "(a) supporting participants during relevant activities" and "working with participants to develop their ability to partake in these activities".
2. I am satisfied having regard to these prescriptions that the support in dispute is a NDIS Support for the purposes of s 34(1)(f) of the Act. To the extent that the support in dispute relates to self-care, it falls within the scope of Item 14, to the extent that it relates to domestic tasks such as cooking and laundry it falls within the scope of Item 23, and to the extent that it relates to social, community and civic participation it falls within the scope of Item 27.

Do the supports in dispute meet the needs of the Applicant arising from an impairment in relation to which he meets the disability requirement?

1. A threshold issue that must be determined before this question can be answered is the temporal focus for paragraph 34(1)(aa). Specifically, is this provision focused on the point in time when the participant was assessed as meeting the access criteria for the NDIS, or is its temporal reference the time the SoPs is approved? For the more extensive reasons I have given in Forrest[7] I am satisfied that the use of the irregular verb 'meets' in the present continuous tense in paragraph 34(1)(aa) means that the temporal focus is the time the SoPS is approved and not the time the Applicant was assessed as meeting the access criteria to become a participant in the NDIS.[8]
2. It is not controversial that the Applicant lives with the following health conditions: Cushing Syndrome (hormonal disorder), Type II diabetes, absence of the adrenal gland which has been surgically removed, osteoporosis, Mononeuritis multiplex (damage to multiple peripheral nerves), and Chronic Inflammatory Demyelinating Polyneuropathy (an autoimmune disorder affecting the peripheral nervous system) (CIDP).
3. The Applicant was assessed as meeting the disability requirements for access to the NDIS on 19 November 2019 by an internal review delegate of the CEO upon her review of an original 'access not met decision' made on 26 September 2019. In the notice of her decision the internal review delegate states that she was satisfied that the Applicant met the paragraph 24(1)(a) disability requirement because of his CIPD and diabetic peripheral neuropathy, however she was only satisfied that he met the paragraph 24(1)(b) disability requirement with respect to CIPD. With respect to the paragraph 24(1)(c), (d), and (e) disability requirements the internal review delegate merely states her satisfaction that these criteria were met. No explanation is given for why that was so.
4. The "dashboard" of the Applicant's NDIA electronic client account purports to record the impairments in relation to which he was assessed as meeting the disability requirements for access to the NDIS. There it is recoded that the Applicant's "primary" "reported impairment" is Diabetes mellitus, that his "Assessed impairment" is "M95 - other physical" and that the "effective start date for that condition is "26.09.2019" and its "effective end date" is "31.12.9999". The same information is recorded against the "secondary impairment" tab, with the exception that the "assessed impairment" is coded "E14 -Diabetes Mellitus".
5. Neither the internal review access decision, nor the dashboard of the Applicant's NDIA account, are of much assistance in determining the basis upon which the Applicant meets the disability requirements for access to the NDIS. They both refer to health conditions, not impairments, and the internal review decision appears to suggest that the Applicant was found to have substantially reduced functional capacity in each of the paragraph 24(1)(c) life activity areas, which plainly was not the case then, or now. The internal review decision and the dashboard are even at odds as to the health condition that results in the impairments in relation to which the Applicant met the disability requirements.
6. I have considered the supporting evidence associated with the Applicant's access request in 2019, and the other evidence before me relevant to the Applicant's health conditions and impairments. Doing the best that I can that evidence I am satisfied that the Applicant now meets the disability requirements for access to the NDIS based on the following permanent impairments which result in substantially reduced functional capacity for self-care and mobility and which affect his capacity for social and economic participation:[9]

1. Sensation of pain, being pain in multiple body parts,
2. Impairment of genitourinary function, being the urinary function of urinary continence,
3. Impairment of digestive function, being the defecation function of faecal continence,
4. Impaired neuromusculoskeletal and movement related functions, being muscle and movement functions,

1. Impaired structures of the nervous system, being to the spinal cord and related structures, and
2. Impaired structures related to movement, being to muscles.

1. I am satisfied that pain is a sensory, or in the alternative a neurological impairment,[11] that incontinence is a neurological impairment, and that the other impairments referred to above are both neurological and physical impairments for the purposes of paragraph 24(1)(a).
2. These impairments do not result in substantially reduced capacity for communication. The Applicant has substantial functional capacity for expressive and receptive communication.[12] Nor do they result in a substantial reduction in functional capacity for social interaction. The Applicant can make and keep friends, interact with other people in the community, and maintain behavioural regulation in a social context.[13] Nor do they result in substantially reduced functional capacity for learning or self-management. I accept Ms Sale's evidence that the Applicant retains a high level of cognitive function in these life activity areas despite his pain and neurological and physical impairments.[14]
3. I do not understand it to be controversial that the Applicant's impairments, as identified above, result in substantially reduced functional capacity for self-care and mobility. I will discuss the evidence in relation to these functional limitations in consideration of the support in dispute.
4. The Applicant also contended for impairments to his specific mental functions in support of his request for additional disability support worker assistance. That claim appeared to encompass attention, memory, emotional, and higher-level cognitive functions. However, the evidence before me is not sufficient for me to determine that the Applicant has permanent impairments of this nature that result in substantially reduced functional capacity in any of the paragraph 24(1)(c) life activity areas. There is some evidence dating to 2021 of possible cerebrovascular disease associated with long-term cigarette smoking,[15] but there is no reference to a cognitive impairment of this kind in a later report dated 20 June 2022 by Mr H Tamer, Clinical Psychologist.[16]
5. Mr Tamer does report the Applicant at that time to be experiencing "extremely severe" depression, anxiety and stress, which he considered were symptoms consistent with Major Depressive Disorder and Generalised Anxiety Disorder, that had developed in the context of the onset of his pain, and neurological and physical impairments, and the breakdown of his marriage and separation from his children. However, the evidence does not establish the status of those conditions as at the date of the hearing including in relation to their 'permanence' and functional impact.
6. In her report, Ms Sale reflects on the state of the evidence with respect to the Applicant's cognitive function and concludes 'the medical evidence provided gives both mixed and inconclusive opinion on ... level of cognitive function". I agree with that assessment.
7. This finding is of some significance in relation to the dispute in dispute. To the extent that this support is claimed to be necessary to address the Applicant's substantially reduced functional capacity for learning and self-management, a permanent cognitive impairment resulting in substantially reduced functional capacity is not established on the evidence before me. To this extent the support in dispute is not necessary to address the needs of the Applicant arising from an impairment in relation to which he meets the disability requirements and cannot be approved as a reasonable and necessary support for inclusion in the Applicant's SoPS.
8. It remains to consider in relation to the paragraph 24(1)(f) disability requirement if the Applicant is likely to require NDIS Supports under the NDIS for his lifetime. I do not understand this disability criterion to be in issue with respect to his pain and neurological and physical impairments. The Applicant has been a participant in the NDIS since November 2019. There is no suggestion in the evidence that he has ceased to be eligible for or to require NDIS support. I have tested his requested support against the paragraph 34(1)(f) requirement by reference to the NDIS Supports Transitional Rules and I have determined it is a NDIS Support.
9. For the foregoing reasons, for the purposes of paragraph 34(1)(aa), I conclude that the Applicant continues to meet the disability requirements because of his pain (being either a sensory or neurological impairment) and other neurological and physical impairments. However, I am not satisfied that he meets the disability requirements with respect to a cognitive impairment. I cannot be satisfied on the state of the evidence as to the existence, extent and permanence of any such impairment. Having regard to that, and for completeness, I note that I do not consider that there is scope for Note (b) to s 34(1) to be engaged in this case (impact of another impairment in relation to which the participant does not meet the disability requirements on their disability support needs arising from an impairment in relation to which they do).
10. Consequently, pursuant to paragraph 34(1)(aa) I can only consider the Applicant's request for additional disability support worker assistance in relation to the substantially reduced functional capacity he experiences in undertaking the tasks and actions involved in the self-care and mobility life activity areas due to pain and his neurological and physical impairments.
11. I now turn to consider in detail the support in dispute.
12. An appropriate starting point is to consider the requested support in the context of the person (the Applicant).[17] In this respect, the Applicant is a 57-years old. He lives alone in a 4-bedroom freestanding house with large lawns and garden areas which is in a South-Western Sydney Suburb. That is a rental property. It is an 'older style' home. It is generally accessible for him, but does have some features, including steps at the front entrance, and a prominent hob in the shower recess, which present a risk of trips and falls. The bathroom is also at some distance from the Applicant's bedroom, which presents challenges in managing his continence at night.
13. The Applicant has been married 5 times and has 5 children from 2 of those marriages. His oldest son is in his early 20's and lives in proximity. He usually visits every second day and assists the Applicant with showering, specifically washing his back and feet. That informal support is provided intentionally. The Applicant does not want disability support worker assistance with showering because of the tenets of his Muslim faith (his chosen disability support worker is female).
14. The Applicant's other 4 children are in the age range 9 to 14. They live with their mother from whom the Applicant is estranged. At the date of the hearing the Applicant had no contact with these children. He was involved in proceedings in the Family Court attempting to obtain parenting orders that would enable him to have contact with and care of them. He says that primary barrier to him doing so has been the Court's perception of his inability to care for them due to his impairments. He maintains his 4-bedroom rental property in the hope that his children will eventually be able to live with him on at least a shared parenting basis. He has very strong feelings about his ex-wife and his separation from his 4 younger children.
15. The Applicant is one of 9 siblings. All his siblings live in proximity to him in South-Western Sydney. He maintains close telephone and personal contact with his extended family. This includes frequent weekly visits to their homes. He receives substantial informal support from his siblings. One of his sisters cuts his toenails. A brother-in-law mows his large lawn and maintains his yard.
16. Prior to the onset of his primary health condition, the Applicant was an entrepreneur and restauranteur with business interests in Australia and Dubai. He maintains a strong interest in food and food culture and Lebanese Cuisine in particular. In this respect, it is his preference to prepare as far as possible his own meals each day using fresh vegetables and herbs and Halal meats and other products.
17. I now turn to consider the support in dispute in greater detail.
18. The Applicant requests disability support worker assistance for 12 hours per day, 7 days per week, rostered in two shifts, being a morning shift (7am to 1pm), and an afternoon shift (3pm to 9pm). The assistance he wants the disability support worker to provide during these shifts is set out following:[18]

• Prepare for morning shower (gathering clothes, getting up shower recess etc) (sic)
• Supervise dressing task (provide assistance as needed)
• Provide morning medications
• Set up and/or prepare breakfast
• Attend to laundry tasks (wash, fold, sort and put away clothes)
• Transport and accompany to morning outings (i.e. shops, formal appointments and/or social engagements including family visits)
• Assist with preparation of lunch
• Provide informal social support
• Assist with self-management activities (book appointments, paying bills, liaise with essential services)
• Provide fetch & gather support
• Provide assistance with using Ipad and/or TV
• Attend to light domestic chores as required

• Transport and accompany to afternoon outings (i.e. shops, formal appointments and/or social engagements including family visits)
• Assist with preparation of dinner
• Attend to light domestic chores as required
• Assist with laundry/washing tasks
• Assist with self-management activities (book appointments, paying bills, liaise with essential services)
• Provide fetch & gather support
• Provide assistance with using Ipad and/or TV
• Gather and prepare clothes for bed
• Supervise dressing task (provide assistance as needed)
• Provide informal social support
• Provide evening medication
• Assist with bed transfers (if required)

1. The Applicant's request for 12 hours per day disability support worker assistance is based on Mr Williams' recommendation which is associated with the following justification:[19]

• Assistance with personal care tasks such as showering and dressing
• Washing soiled linen and clothing (if required)
• Assistance with preparing breakfast and some food prep work for lunch
• Providing prompts for taking medication
• Supervising mobility during functional tasks
• Assist ... in developing a plan of action for the day
• Assisting with domestic ADLs such as vacuuming, cleaning floors, cleaning his bathrooms and laundry and tidying his home (as required)

• ... requires standby assistance when donning/doffing lower body garments such as continence pads, trousers or shorts because of his impaired balance
• ...requires assistance changing his linen and washing soiled linen and clothing because of impaired mobility
• ... requires standby assistance with accessing his shower recess because of the presence of a hob and his impaired balance and mobility
• ... requires assistance preparing meals such as breakfast and lunch because of impaired mobility and balance
• ... requires assistance with developing and executing action plans because of his impaired executive functioning skills.
• ... can be incontinent during the day.
• ... does not have informal support to assist with these tasks

• Assisting with shopping (as required)
• Assisting with attending community-based appointments
• Assistance with attending social engagements with friends, family or business associates.
• Assisting with going on outings and pursuing leisure, hobbies and interests

• ... requires constant standby assistance/supervision when mobilising outdoors because of his impaired balance and cognitive deficits, which cause him to forget to use his mobility aid consistently.
• ... requires assistance loading/unloading his four-wheel walker when accessing the community.
• When in the community ... can become disorientated and lose track of tasks he is performing, which requires prompting to remain focused and recall information required to complete activities such as shopping and other errands.
• It should be considered appropriate... given his relatively young age and life role, to have the capacity to access the community on a daily basis to pursue his interests, maintain his social connections, and participate in the economy/community.
• ... must regularly purchase fresh Halal food and ingredients to cook his preferred food. Most of these ingredients can only be purchased from specialty stores that do not deliver.
• This support is required to prevent ... from experiencing cognitive decline and poor mental health outcomes due to social isolation.
• This support will also prevent ... from experiencing physical deconditioning due to physical inactivity.
• ... lacks informal support to assist with these tasks

• Assistance with personal care tasks such as changing continence pads (if required)
• Washing soiled linen and clothing (if required), eg hanging out of and folding washing
• Assistance with preparing lunch
• Providing prompts for taking medication
• Supervising mobility during functional tasks such as meal preparation and transitioning from the community to home.
• Assist ... in developing a plan of action for the day.
• Assistance with domestic ADLs such as vacuuming, washing dishes/crockery, cleaning floors, cleaning his bathrooms and laundry and tidying his home (as required)
• Position ... four wheel walking frame and mobile phone close to him

• ... requires standby assistance when donning/doffing lower body garments such as continence pads, trousers or shorts because of his impaired balance
• ...requires assistance changing his linen and washing soiled linen and clothing because of impaired mobility
• ... requires assistance preparing meals such as lunch because of impaired mobility and balance
• ... requires assistance with developing and executing action plans because of his impaired executive functioning skills.
• ... does not have informal support to assist with these tasks

• Washing soiled linen and clothing (if required)
• Assistance with changing continence pads (if required)
• Assistance with preparing food prep work for dinner (sic)
• Providing prompts for taking medication
• Supervising mobility during functional tasks
• Assist ... in developing a plan of action for the rest of the day or tomorrow
• Assisting with domestic ADLs such as washing dishes and crockery, vacuuming, cleaning floors cleaning his bathrooms and laundry and tidying his home (as required)
• Providing informational support

• ... requires standby assistance when donning/doffing lower body garments such as continence pads, trousers or shorts because of his impaired balance
• ... requires standby assistance with accessing his shower recess because of the presence of a hob and his impaired balance and mobility
• ... requires assistance preparing meals because of impaired cognition, mobility and balance
• ... requires assistance with developing and executing action plans because of his impaired executive functioning skills.
• ... does not have informal support to assist with these tasks
• ... requires assistance changing his linen and washing soiled linen and clothing because of impaired mobility

• Assisting with shopping (as required)
• Assisting with attending community-based appointments
• Assistance with attending social engagements with friends, family or business associates.
• Assisting with going on outings and pursuing leisure, hobbies and interests
• Assisting with attending family gatherings in the community
• Assist with attending ... children's extracurricular activities, such as sports games, training sessions and parent teacher interviews
• Assisting with attending the local mosque for evening prayer services

• ... requires constant standby assistance/supervision when mobilising outdoors because of his impaired balance and cognitive deficits, which cause him to forget to use his mobility aid consistently.
• ... requires assistance loading/unloading his four-wheel walker when accessing the community.
• ... can become disorientated and lose track of his tasks when in the community, which requires prompting to remain focused and recall information required to complete activities such as shopping and other errands.
• It should be considered appropriate... given his relatively young age and life role, to have the capacity to access the community on a daily basis to pursue his interests, maintain his social connections, and participate in the economy/community.
• ... is a religious Muslim who values attending regular religious services, including Friday evening prayers. Participating in this activity is crucial for helping ...maintain his psychological health by allowing him to practice his religion
• ... is the father of young children and is keen to support them where he can with their educational pursuits and extra-curricular activities. Maintaining this connection is crucial for preserving ... mental health and relationship with his children
• ... needs to regularly purchase fresh food/ingredients to cook his preferred food
• This support is required to prevent ... from experiencing cognitive decline and poor mental health outcomes due to social isolation.
• This support will also prevent ... from experiencing physical deconditioning due to physical inactivity.
• ... lacks informal support to assist with these tasks

• Washing soiled linen and clothing (if required)
• Assistance with changing continence pads (if required)
• Assistance with making dinner
• Providing prompts for taking medication
• Supervising mobility during functional tasks
• Assist ... in developing a plan of action for the next day.
• Assistance with domestic ADLs such as vacuuming, washing dishes/crockery, cleaning floors, cleaning his bathrooms and laundry and tidying his home (as required)
• Providing informational support
• Assisting ... in settling at night
• Assisting ... with evening personal care tasks such as showering and changing pyjamas
• Ensuring mobility aids are within reach and ... in line of sight
• Assistance with medication

• ... requires standby assistance when donning/doffing lower body garments such as continence pads, trousers or shorts because of his impaired balance
• ... requires standby assistance with accessing his shower recess because of the presence of a hob and his impaired balance and mobility
• ... requires assistance preparing meals, such as dinner, because of impaired mobility and balance
• ... requires assistance with developing and executing action plans because of his impaired executive functioning skills.
• ... lacks informal support to assist with these tasks
• ... requires assistance changing his linen and washing soiled linen and clothing because of impaired mobility

• Washing soiled linen and clothing (if required)
• Assistance with changing continence pads (if required)
• Providing prompts for taking medication (if required)
• Supervising mobility during functional tasks such as going to the toilet
• Assisting ... with personal care tasks such as cleaning his body
• Assist ... in returning to bed if he falls

• requires standby assistance when donning/doffing lower body garments such as continence pads, trousers or shorts because of his impaired balance
• ... requires standby assistance when performing personal care tasks whilst standing because of his impaired balance and mobility
• ... requires assistance preparing meals, such as dinner, because of impaired mobility and balance
• ... requires assistance with developing and executing action plans because of his impaired executive functioning skills.
• ... reported that he has occasionally fallen out of bed overnight
• ... reported he is often incontinent overnight
• ... reported that he demonstrates poor mobility and balance when under fatigue overnight. This places him at a high risk of falling when walking to the bathroom
• ... requires assistance changing his linen and washing soiled linen and clothing because of impaired mobility
• ... can neglect to use his mobility aid because of his cognitive impairments
• ... does not have informal support to assist with these tasks

• ... can be incontinent of urine during the day

• ... can be incontinent of urine during the day

1. In her report, on instructions from the CEO, Ms Sale provides a break-down of the Applicant's current SoPS in the Core Supports category, which is where funding for disability support worker assistance is found, as follows:[20]
   1. Low-cost personal care
   2. Continence products
   3. 14 hours per week, Monday to Friday (self-care)
   4. 4 hours per week, Saturday (self-care)
   5. 4 hours per week, Sunday (self-care)
   6. 28 hours per year - public holiday rate (self-care)
   7. 7 hours per week, Saturday PM & Sunday PM (self care)
   8. 10 nights per year of sleep-over shifts (self-care)
   9. 15 hours per week, Monday to Friday (social activities)
   10. 6 hours per month (2 hours per week - community access) (sic)
2. Ms Sale states in summary that the Applicant is currently funded for approximately 35.5 hours per week of disability support worker assistance. However, that calculation must be incorrect if the various components of funding she states is correct.
3. In her Statement of Facts, Issues and Contentions the CEO contends that the Applicant is funded for 44 hours of disability support worker assistance. That appears to result from the addition of items 3, 4, 5, 7, and 9 in Ms Sale's list, but it does not appear to take account of items 6, 8, and 10. If each of these items is taken into account, it appears safe to conclude that the Applicant is funded for in excess of 44 hours a week disability support worker assistance, which is an average of more than 6.5 hours per day. I note that the Core Supports category in the Applicant's SoPS can be used flexibly, meaning that he can utilise more or less of the funding available to him within that category on any given day, and allocate the funding differently between categories, provided he does not exceed his overall budget.
4. The evidence as to the Applicant's functional need in relation to the tasks and actions involved in self-care and mobility is found principally in Mr Williams' and Ms Sale's reports, and in the Applicant's oral evidence.
5. At the outset I note that Mr Williams administered the Care and Needs Scale (CANS)[21] as a key component of his assessment. This is a 10-point scale that measures the intensity and duration of care needs over a 24-hour period. It was developed for NSW ICare to assist in the assessment of the care needs of persons with acquired brain injuries who have high physical care needs.[22] Its utility in assessing the Applicant's care needs as a person who does not have an acquired brain injury is not immediately apparent to me, and due to the time constraints that applied when Mr Williams gave evidence I was unable to ask him to provide an explanation of this. In any event, using the CANS, Mr Williams determined that the Applicant required up to 19 hours of direct support per day, but was capable of being left alone overnight.[23] That outcome is so contrary to the other evidence before me that I am not prepared to give it any weight.
6. The evidence before me in relation to the Applicant's functional capacity for self-care may be summarised as follows:

1. He is independent washing his hands.[24]
2. He can wash his upper body, including his head, chest, upper limbs, groin, thighs and legs to mid-shin level seated in a shower chair.[25] He can stand using the shower chair to maintain balance to wash his buttocks.[26] He can dry most areas of his body independently.[27]
3. The Applicant's son assists him with washing and drying his feet, lower legs and back. As noted above, the Applicant does not require disability support worker assistance with showering because of the tenets of his faith.
4. Mr Williams reports the Applicant as requiring 'constant supervision' during showering.[28] This appears to be a reference to the support provided by his son. I am not satisfied that the Applicant is unable to clean his body without constant supervision. The Applicant's physical impairments do give rise to a risk of trips and falls, and his bathroom is of an older, less accessible style with a narrow shower cubicle and higher than type shower tray hob. However, within those constraints, the risk of trips and falls appears appropriately managed using the shower chair.
5. Mr Williams reports that the Applicant benefits from 'set-up' assistance showering.[29] Again, this may be a reference to the assistance provided by his son. However, I am otherwise satisfied that the Applicant can prepare, undertake, and complete his showering routine independently.
6. Mr Williams opines that the Applicant requires 'psychosocial support' with washing himself due to demotivation.[30] Ms Sale does not make any observation of this nature. I understood the Applicant's oral evidence to be that he showers at least every second day with the support of his son.

1. He can clean his teeth and shave independently from a seated position.[31]
2. He is unable to cut his toenails because he cannot maintain a sustained forward flexed posture. However, he does not require disability support worker assistance with this task, as his sister does this for him.[32]

1. He experiences episodes of urinary and faecal incontinence. To assist in the management of urinary incontinence he wears a continence pad. He is otherwise able to toilet independently, including being able to carry out cleaning in the perineal area using a bidet.[33]
2. There is some conflict in the evidence as to whether he requires assistance to apply and remove continence pads. Ms Sale reports being told by the Applicant that he is independent with this task.[34] He denies this.[35] Mr Williams reports the Applicant as requiring assistance due to his impaired mobility, strength and balance.[36] If the Applicant does receive assistance with incontinence pad application and removal, it is not clear to me who provides him with this assistance. He says he does not accept intimate care from his (female) disability support worker because of the tenets of his faith.[37]
3. He has some difficulty managing his continence nocturnally because of the distance between his bedroom and the bathroom. He has access to a urine bottle but finds this awkward to use and avoids doing so.[38]

1. He can independently don/doff his upper body garments including singlets, T-shirts and button-up shirts and does this whilst seated because of limited endurance and balance.[39]
2. He can independently don/doff his underwear and pants from a seated position. He needs to stand to doff his pants where required and can do so using his right hand to hold onto an object to balance. Alternatively, if affected by pain, fatigue, or weakness he obtains the assistance of his oldest son to do so when he visits. He does not request disability support worker assistance with intimate dressing because of the tenets of his faith.
3. He can independently don/doff shoes - he does not wear socks or shoes inside his home and wears slip-on crocs outside it.[40]
4. He is assisted by 'set-up' assistance to dress but can obtain items for dressing independently.[41]
5. Mr Williams opines that he requires 'psychosocial support' with dressing, being prompting, due to demotivation.[42] Ms Sale does not make any observation of this nature.

1. He can eat independently.
2. Mr Williams opines that he requires 'psychosocial support' with eating due to demotivation.[43] Ms Sale does not make any observation of this nature. The Applicant's oral evidence was to the effect that he is highly motivated for meal preparation and eating.[44]

*_ He is motivated to maintain a balanced healthy diet based on culturally appropriate meals,[45]

• He is not resistant to attendance to medical consultations, but experiences a level of disorganisation in doing so, which requires prompting. He relies upon text message prompts from his doctor's practices and prompts from his disability support worker in this respect. He declines to maintain a calendar to manage his appointments.[46]
• He is not resistant to taking prescribed medication but experiences a level of disorganisation in doing so. He relies on his disability support worker to prompt him to take medication. He does not keep a Dossett Box or other aid of this nature.[47]_**

1. The evidence before me in relation to the Applicant's functional capacity for mobility may be summarised as follows:

*_ He is unable to safely mobilise without assistive equipment due to imbalance and muscle weakness. He uses a 4-wheel walker (4ww) independently to mobilise safely within and outside his home where possible. The 4ww does not fit in his toilet or shower at home however, due to limited circulation space. He can also mobilise independently over a short range by holding onto fixtures.[48] He also uses a single pronged walking stick in his right hand to mobilise outside his home.[49]

• He can lift lightweight kitchen items such as a coffee pot, cup, plate, and cutlery. He struggles to lift a kettle filled with water.[50]
• He is unable to carry heavy objects, such as saucepans, packets of foodstuffs and heavy drink containers, shopping bags, and household items due to muscle weakness and imbalance and his reliance on the 4ww. He can move lighter weight items around by placing them on the seat of his walker.[51]
• He cannot carry hot drinks due to his reliance on the 4ww for stability.[52]
• He can access cupboards, storage and shelving between hip level and head height. He can reach items above head height using his right dominant arm, but not with his left arm due to neuropathy. He is unable to reach items below hip level due to his dependence on the 4ww for stability. [53]_**

1. He has weakness or paralysis in his left front foot which causes his toes to drag on the ground (drop foot). This creates a risk of trips and falls. He can manage this by using the 4ww and lifting his left leg when walking.[54]
   1. His experiences weakness in his left arm and hand but can use them to a limited extent to stabilise himself when walking down his front stairs and getting into his car.[55]
2. He requires 'stand-by assistance' when navigating his front stairs with a walking stick because his left drop foot creates a high risk of trips and falls.[56]
   1. He has some history of falls (he reports 7 or 8 falls in the last 4 years, the last one being in June 2023). None of these falls has caused injury requiring hospital admission, but one did result in lacerations to a hand which involved ambulance attendance.[57]
   2. He can transfer from his bed to a standing position using his 4ww as a support. He can lift his legs in and out of bed.[58] Mr Williams opines that he requires 'stand-by assistance' with bed transfers due to limited limb strength and a propensity for dizziness,[59] but the Applicant confirmed his independence with these tasks and actions in his oral evidence.[60]
3. He can transfer on and off an armchair with hard and soft arms. He uses the 4ww to transfer from a sofa, with a degree of difficulty.[61]
4. He can transfer to and from the toilet independently using a grab rail on the wall.[62] Mr Williams opines that he requires 'close supervision' during toilet transfers in part because there are no grab rails in the toilet.[63] However, he is mistaken about that.[64]
5. He can transfer in and out of the shower recess using the doorframe for support. The shower recess has a large hob which necessitates care to manage the risk of trips and falls.[65]

1. He has a driver's licence and car, which is an automatic. He uses his right foot to operate the pedals. He has cushions positioned on the car seat and back rest to manage pain. He was observed by Ms Sale to be capable of transferring in and out of the car independently,[66] and to be able to operate its controls. He reports driving short distances locally on familiar roads when he feels well enough to do so (that is, when his function is not limited by pain, and exacerbated leg weakness). He reports he is always accompanied by a disability support worker when doing so.[67]
2. He does not use public transport as a choice because his family provide transport, he utilises his disability support worker for transport, and he is able to drive.[68] For the same reason he does not use hire vehicles such as taxis and does not participate in the Taxi Transport Subsidy Scheme.[69]
3. He depends upon his disability support worker to drive him to medical appointments. He requires assistance to transfer his 4ww in and out of the car so he can use it moving around in the community.

1. The self-care and mobility life activity areas do not incorporate the tasks and actions involved in domestic activities such as laundry, domestic cleaning, and meal preparation (as distinct from eating and drinking), as examples.[70] This is a potential difficulty associated with the introduction of the paragraph 34(1)(aa) criterion as a mandatory consideration in determining what is a reasonable and necessary support. Much of the Applicant's case for an increase in disability support worker hours relates to such activities, and the NDIA routinely funds support of this kind as is evident from them being included in the NDIS Supports Transitional Rules, but they do not form part of the paragraph 24(1)(c) statutory test that is imported into s 34(1) by paragraph (aa).
2. For reasons I will explain following the outcome in this case does not turn on this issue, so I will therefore simply note the functional limitations the Applicant experiences in relation to these tasks and actions:
   1. He is unable to carry out heavy domestic cleaning tasks and actions due to pain and his physical impairments. He cannot vacuum, mop, clean the bathroom etc. He currently employs a commercial cleaner to perform these tasks at his own expense. He relies on his disability support worker for incidental cleaning, tidying and washing of pot and pans and other heavy items. Ms Sale assessed the Applicant as being functionally capable of light cleaning such as wiping the kitchen benchtop and washing light dishes and other items in the kitchen sink.[71]
   2. He is unable to change and wash bed linen or complete all tasks associated with other laundry because this involves bending, stooping, heavy lifting and carrying which he is unable to do due to his pain and physical impairments. Ms Sale did observe him to be capable of taking individual items of clothing to the laundry and placing them in the washing machine.[72]
   3. He has difficulty with complex meal preparation tasks due to his pain and physical impairments. He is unable to lift pots and pans or heavy ingredients. He is unable to stand to attend to pots and pans on a cook-top for any length of time. He is unable to bend to place items in or take them out of the oven. Ms Sale did assess him as being capable of preparing light meals and of being able to make coffee and the like. He also reported his enjoyment in participation in meal preparation by doing tasks at the kitchen table and menu planning.[73]
   4. He can attend shops using his 4ww to select and purchase food and other items, and enjoys doing so, but is unable to carry shopping. He is dependent on his disability support worker do so. He reported to Ms Sale that he lacked the technical know-how to carry out food shopping on-line.[74] In oral evidence he expressed a strong preference for direct shopping including at shops which do not have an on-line presence.[75]
3. As a result of her assessment Ms Sale concluded that the Applicant required 29.5hours per week (or 4 - 4.5hours per day) of disability support worker assistance constituted as follows:

Transport to accompany ... to social activities within his community (café, shops, beach, movies etc)

Transport ... to family-based activities (ie dinner, lunch, family events) in which he is surrounded by his family

... strongly values social connection and integration. He enjoys spending time with others. He enjoys going out to a social activity each day. ... dislikes being alone, as he tends to think a lot about his children.

He requires physical supervision to exit his home (stairs) and support to set up his 4ww and unload from the car. He also requires transport to social activities outside his area.

Requires transport assistance. He does not appear to be able to drive completely unaccompanied. He requires physical supervision to exit his home (stairs) and support to set up his 4ww and unload from the car.

I have not provided accompaniment support ... when at family activities with his siblings in their home.

I cannot see a clinically justifiable reason as to why he would require accompaniment support, noting that his family could provide him with any informal support during these family-based engagements (i.e mobility supervision/fetch & gather support). In my recommendations of hours, I have considered the fact that his family live locally (within a 15-minute drive)

9 hours per week.

That is an allowance for 3 x 3 hour outings each week

3 hours per week

That is an allowance for approx. 4 x family based social outings per week

Support worker assistance to oversee new learning activities

Transport and accompaniment support to medical, specialist and therapy appointments and to access his essential services

...requires practical support to get his 4ww out of the car when attending reviews. He is safer using his 4ww than walking stick. Further, he requires indirect assistance from his support workers during consultations to help him understand complex medical information and/or assist with any follow-up requests such as arranging blood tests, scans and/or changes to his medications

Support worker assistance with heavy laundry

Support worker assistance with meal preparation tasks

Support worker assistance with shopping duties

Commercial support for large housing cleaning tasks (bathroom, floors ec)

Commercial support with lawn moving duties

Nil

This will allow ... to maintain a level of independence with aspects of cooking. The time/frequency recommended includes dish washing and kitchen cleaning after cooking.

This provides him with the opportunity to remain socially engaged with his community. He also requires support with un/packing/ Online shopping is not suitable

Nil

Nil

1.5hours per week

7.00 hours per week. That is an allowance of 1 hour per day of meal preparation tasks

3 hours per week

2 hours per week

1 hour per week. This is an allowance for 2 hours per fortnight.

Support worker assistance to oversee self-management tasks (such as appointments, medications etc)

1. The Applicant contends that Ms Sale has seriously underestimated his support needs. In particular, he contends she has seriously underestimated:[76]
   1. his degree of cognitive impairment, and his consequent disorganisation and need for supervision and prompting with activities of daily living,
   2. his risk of psychosocial disability from social isolation,
   3. the frequency and impact of his faecal incontinence, including the need for daily heavy laundering of soiled bed linen,
   4. his need for support for the duration of contact with his extended family, and
   5. his cultural need to prepare fresh Halal Lebanese cuisine each day, which requires daily shopping for ingredients.
2. I will begin my deliberation by reference to some general principles.
3. At a high level of generality, the scheme of Chapter 3 of the NDIS Act is to enable persons with disability who meet the disability or early intervention requirements for access to the NDIS to obtain supports that are reasonable and necessary to ameliorate their substantially reduced functional capacity to undertake the tasks and actions of daily living in specified areas of life. In this respect it is a scheme that operates in relation to objectively ascertained functional need in specified areas of life, not subjective want at large.
4. The NDIS operates in a powerful value-based policy context which emphasises the autonomy and agency of persons with disability and their right to independence, and social inclusion and participation in Australian society, among other things.
5. However, with respect to the provision and funding of supports, a participant's choice and control is not unconstrained. It operates subject to the 'reasonable and necessary' considerations set out in s 34(1) and its related rules. A participant is not free to select a support that is not a NDIS Support by operation of 34(1)(f) by reference to s 10, and the NDIS Supports Transitional Rules, for example. Nor, by operation of the paragraph 34(1)(aa) consideration, are they free to select a support that is unrelated to the substantially reduced functional capacity that results from the permanent impairment(s) in relation to which they meet the disability or early intervention requirements. Similarly, by operation of the paragraph 34(1)(c) consideration, they are not free to select a form of support that is more expensive than an alternative that would meet their functional needs just as well. In a nutshell, participant choice and control operate subject to what is reasonable and necessary by way of support, they do not dictate what is reasonable and necessary. That is so, notwithstanding the fact that, by operation of the paragraph 34(1)(a) consideration, the participant's goals and aspirations is also a relevant consideration in determining what support is reasonable and necessary
6. Additionally, the fundamental purposes of the provision and funding of reasonable and necessary support must be kept firmly in mind. Those purposes are helpfully encapsulated by the principle contained in s 4(11) of the Act. It is to support people with disability to pursue their goals and maximise their independence, to live independently and be included in the community as fully participating citizens and to develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
7. It is a necessary corollary of these fundamental purposes that NDIS Supports are not intended to create or foster dependence by performing tasks and actions of daily living that the participant could reasonably do for themselves, or that they could reasonably learn to do. Nor are NDIS Supports intended to result in unnecessary reliance upon formal (paid) support workers as a substitute for inclusion and participation in the general community, including by forming and maintaining freely given relationships with others. While affective or emotional support in form of reassurance, encouragement and empathy may be incidental in the provision of support by a disability support worker or other professional involved in the provision of NDIS Support, the purpose of NDIS Support is instrumental, not emotional.
8. Similarly, the policy of the NDIS Act is to indirectly support families, carers and other informal supporters of persons with disability (informal supports) by providing persons with disability with the support that it is not reasonable to expect those informal supports to provide.[77] This is to maintain and foster these relationships. It is not to supplant them. The role of informal support in the ongoing support of participants must be recognised and respected in the provision and funding of supports as the principles contained in ss 4(e), and 31(c) and (ca) make clear.
9. It must also be borne in mind that the NDIS is not intended as a total system of support for participants. It is not intended to substitute other general systems of support such as the mental health and general health systems. A participant should not obtain as a NDIS Support, support which is available to them as a Medicare benefit, for example, such as Mental Health Care Plan which enables consultation with a psychologist.
10. In terms of general approach, it is also important to view a participant's SoPS as an integrated package of support. Each support should not be viewed in isolation.
11. With these general principles in mind, I now turn to consider the Applicant's requested support against the remaining s 34(1) criteria.
12. With respect to the s 34(1)(a) criterion, I have set out the Applicant's goals and aspirations at paragraph 20 above. I accept that his rationale for requesting this additional support is consistent with his second and last stated goals. That is, this support is directed to the maintenance of personal hygiene, health, and a clean home. It is also directed at engagement in activities the Applicant enjoys.
13. However, it is difficult to see how the requested support can have any bearing on the Applicant's first stated goal as his ability to have contact with his younger children is a matter for the Family Court, not the NDIS. If a shared parenting arrangement is approved by the Court, the NDIS may have a role to play in ensuring that the Applicant can provide appropriate care and supervision of his children, but that circumstance has not crystalised at this point and there is nothing in the evidence that would indicate that it is a foreseeable outcome.
14. Goals four and five relate to the physiotherapy and occupational therapy supports that have been funded in the Applicant's SoPS, not to his request for disability support worker assistance. Except perhaps to the extent that the provision of excessive disability support worker assistance may inhibit the Applicant from increasing his own functional capacity to perform activities of daily living, contrary to his goal of independence.
15. With respect to the paragraph 34(1)(b) criterion I also accept that the Applicant's rationale for requesting this additional support is to enable him to undertake social and economic related activities (contact with family, recreation, shopping etc). However, I do have a reservation as to the degree to which this support, if approved, would assist the Applicant undertake genuine social participation activities. That is because excessive formal support has the potential to supplant informal support in the context of freely given relationships. I will return to this issue in the context of the paragraphs 34(1)(d) and (e) criteria.
16. With respect s 34(1)(c) and Rule 3.1, I am not satisfied on the evidence before me that the requested support constitutes value for money relative to the benefit to be achieved. The CEO has already approved substantial funding for disability support worker assistance for self-care and social, community and economic participation, which is more than an average of 6 hours a day, which can be used flexibility. That is substantial funding.
17. In her independent assessment Ms Sale concluded that the Applicant, objectively, did not require as much assistance as he already has. In this respect she concluded that 4 to 4.5 hours per day, or 29.5 hours per week, of this form of support is sufficient to address the his functional needs. I substantially accept Ms Sale's evidence, reasoning and conclusions. In my questions of her following cross-examination, I asked her to assume, on the state of the evidence as it appeared to stand then, that she had underestimated the degree of the Applicant's faecal incontinence, and that laundering of bed linen was required each day. She indicated based on what I put to her that some additional time each day may need to be allowed for changing the bed linen and heavy laundry. However, even if I reach the conclusion that 1 extra hour per day is required in this respect, the Applicant's total existing funded support can absorb that cost without the need to approve anything additional.
18. Mr Williams' justification for the increase in disability support worker hours is substantially based upon his assessment of the Applicant's purported cognitive impairment and his consequent need for prompting and supervision due to poor memory and disorganisation. Much was also made of this in oral submissions on behalf of the Applicant. As I have already stated, on the state of the evidence, I am not satisfied that the Applicant has a cognitive impairment, or if he does, that it results in substantially reduced functional capacity in any of the paragraph 24(1)(c) life activity areas. There is therefore no basis on that ground that an increase in disability support worker hours could be justified.
19. As I have said, the Applicant's SoPS is to be viewed as an integrated package of supports. He has substantial funding approved for occupational therapy support, which he can utilise to assist him to develop sustainable organisational and reminder techniques. It is not reasonable or necessary for the Applicant to rely upon live assistance for day-to-day organisational tasks when the keeping of a calendar, or, in respect of medication, having a Chemist draw up a weekly medication box, and programming his phone to provide alerts to take it, would enable his independence in such tasks. The doing of these sorts of tasks for the Applicant, rather than supporting his ability to do them with relative independence, is dependency creating and infantilising of him. With respect o Rules 3.1(b) and (c) that will not be of long-term benefit to the Applicant, and it is not likely to reduce the costs of his support in the future.
20. Mr Williams' justification for the increase in disability support worker hours is also substantially based upon his assessment of the Applicant's risk of trips and falls and his consequent need for supervision on that account. There is no doubt that the Applicant's musculoskeletal impairments, particularly his weakness in his left arm and his right foot paralysis create a real risk of trips and falls. That consideration is to be given weight. Having acknowledged that, my assessment of the evidence is that this risk has been exaggerated to the extent that it is claimed that the Applicant requires constant supervision because of it.
21. Better management of that risk in my opinion would involve the Applicant moving to more accessible premises, with a bathroom proximate to his bedroom, which does not have steps at the front or a narrow shower recess with a high hob. In this respect, the Applicant lives in a rental property. It is not a property to which he has any emotional or other attachment. Its size (four bedrooms on a large block with lawns and garden areas) far exceeds his present and foreseeable needs for accommodation. A smaller more accessible unit or flat would be more commensurate with his functional needs, objectively viewed, and better position him to manage the risk of trips and falls. I accept that different considerations may arise if, in future, the Applicant obtains shared parenting orders from the Family Court in relation to his younger children. But presently there is no foreseeable prospect of that.
22. I should be clear that it is not my intention to suggest that the CEO, or I, standing in her shoes, has any power to tell the Applicant where he should live. However, in my view, an irrational choice of living environment is a relevant consideration in determining if a requested support is reasonable and necessary. The Applicant is free to live where he chooses. But an irrational choice does not render the additional supports required because of that environment reasonable and necessary having regard to the fact that the NDIS involves public expenditure, and the sustainability of the NDIS is a relevant consideration.
23. A further reason why I consider the claims made in relation to the risk of falls exaggerated is that there is no evidence before me that anyone has ever recommended that the Applicant wear a falls alarm (as a wrist band or necklace), or that he has ever undergone a falls management training procedure to learn the skills to self-recover from a fall. In any event, he does not use such and alarm, even though he has an older son and nine siblings and their families living in proximity, and the 'fall-back' position for such an alarm is an ambulance call.
24. No-one wants the Applicant to fall. But his risk of trips and falls is capable of being managed in a rational way, just as it is for countless other elderly and disabled people who do not seek to draw upon, or in any event do not receive such extensive live assistance. Again, I also note that the Applicant's SoPS is to be viewed as an integrated package. He has substantial funding for occupational therapy support which could be utilised to develop a plan for the management of falls, including the prescription of assistive technology.
25. With respect to Rule 3.1(a) I am satisfied that management of the Applicant's trips and falls risk in these ways would achieve an equivalent outcome to live assistance 12 hours a day at a substantially lower cost. That conclusion is reached without concluding that the Applicant never requires live assistance to manage the risk of trips and falls. Based on Ms Sale's evidence, I accept that he does, for example, to negotiate his front stairs and to transfer into his car. But in my assessment of the evidence, he already has sufficient funding for disability support worker assistance to manage those risks.
26. I have other significant difficulties with Mr Williams' recommended disability support worker hours and the justification he gives for it.
27. Some of his justifications for additional disability support worker assistance are simply not credible. For example, he justifies such support being provided between 1am and 6am, in part, on the basis that the Applicant requires assistance with preparation of meals and the development of daily action plans. There is no evidence that the Applicant undertakes such tasks in the middle of the night, and even if he seeks to do so, there is no evidence that would establish that this is reasonable and necessary.
28. Mr Williams also justifies this additional support on the basis that the Applicant requires the changing and laundering of his bed linen continuously throughout every day, and that he must go shopping every day, more than once a day.
29. Even if I were to accept that the Applicant experiences nocturnal faecal incontinence every day, he is not confined to bed and there is no suggestion that he soils his bed linen more than once a day. I therefore cannot see why the tasks and actions required in changing and laundering his bed linen would need to take place over a 12-hour day. I am satisfied that the changing and laundering of his bed linen could occur within the hours of support the CEO has already approved. Those tasks and actions are capable of being multitasked with other household activities and indeed social and community participation activities.
30. In submissions made on the Applicant's behalf, it was contended that the CEO must respect his cultural need to shop for fresh vegetables and Halal ingredients each day. In his recommended schedule and its justifications, Mr Williams provides for shopping activities more than once a day. A Lebanese Muslim cultural need to shop every day for fresh vegetables and Halal ingredients is put to me as a bare assertion. I have no ethnographic evidence before me that supports such an assertion. On a commonsense basis I cannot see any reason why the Applicant could not fulfill his desire to prepare meals with fresh vegetables and Halal ingredients by confining his shopping to once or twice a week with his already approved disability support worker assistance. He has a refrigerator. This may require a degree of better organisation and planning by the Applicant, but if he needs such assistance, he is funded for occupational therapist support which could be utilised for this purpose. The Applicant's SoPS also now includes funding for a motorised scooter. That device also offers the potential for greater mobility for the Applicant to access local shops of his choice without disability support worker assistance. Having regard to Rule 3.1(a) these existing supports would achieve the substantive outcome the Applicant is seeking at a substantially lower cost.
31. Mr Williams' recommendation also provides for disability support worker assistance for daily social and community participation activities more than once a day. The Applicant is already approved for approximately 16.5 hours weekly support for community activities which he can use flexibly. That amounts to an average of 3 hours per day weekdays, and 2 hours, 3 weekends a month. On any view that is substantial support in this category. I note that in Ms Sales' assessment she considered 9 hours support per week for social interaction support (3 x 3 hour outings each week), with an additional 3 hours per week for family based outings (4 x family events), sufficient support for social and community participation.
32. The Applicant's challenge to the sufficiency of his current support is founded upon the following propositions:
    1. The Applicant must participate in social, community, and family activities each day, usually more than once a day, or he will be socially isolated, deteriorate in his mental health and become physically deconditioned,
    2. He requires active or standby assistance of a disability support worker for the duration all such activities, including during family-based activities and events,
    3. Although he can drive is own motor vehicle, he requires a disability support worker to assist him to transfer into and out of the motor vehicle from his 4ww, and to stow and unload his 4ww,
    4. He will not use public transport or Taxis to travel to social, community and family events,
    5. Members of his family cannot be expected to support him to participate in family events, such as by providing him with food and beverages, assisting him to the toilet and fixing his lower garments afterwards, or by transporting him to and from family events.

1. I do not accept these propositions.
2. As I have said, on an objective basis, the Applicant has been approved for substantial support for social, community and family participation. That support can be used flexibly to align with the type of activity or event (that is, he can utilise his funded support according to his needs and preferences within his overall budget). There is no likelihood that the Applicant will become socially isolated with this level of support for social, community and family participation.

1. The package of supports included in his SoPS also includes occupational therapy and physiotherapy support which can be utilised to address any concern about physical deconditioning. If there is any concern about the Applicant's mental health, he should consult his General Practitioner and obtain referral for any specialist support that he needs. The NDIS is not intended to be a total system of support for the Applicant.
2. While I accept that there may be some social and community participation activities where the active or standby assistance of a disability support worker will be required, I do not accept that this will be necessary for every such activity or that it is necessary or appropriate for family-based activities. In this respect, as I have said above, the NDIS provides instrumental support to address limited function. A disability support work may incidentally provide reassurance, encouragement and empathy but their role is not to provide emotional support. They are to assist the Applicant to undertake the practical tasks and actions that will enable his participation in social, community and family activities. They are not there to be the social, community or family activity.
3. There should be occasions where social, community and family activities require little or no disability support worker assistance. For example, the Applicant should reasonably be expected to access his immediate locality using the motorised scooter that has been funded as part of his SoPS. He can explore social activities and groups within his immediate locality that he can attend independently. He can invite family members and friends into his own home for meals and other activities. Disability supporter worker assistance may be necessary to prepare food and beverages for such events, but otherwise can be deployed to other tasks during those events. A disability support worker is not required to participate in those events.
4. There will be occasions where the Applicant can be dropped off and picked up from an event without the disability support worker having to remain with him. They can then continue with other home-based tasks. That is particularly the case with family-based events. I do not accept the proposition that the Applicant will not be assisted by his family with the provision of food and beverages, or the minor assistance that he may require to go to the toilet at their homes. The evidence is clear that is the beneficiary of a large caring and loving family. I do not consider there is any risk his needs will not be attended to on a loving, freely given basis when he is with them.
5. I note the Applicant's refusal to use public transport or taxis for transport to social, community and family events. However, the fact that he is only willing to do so in his own car with a driver does not mean that this support is, from an objective point of view, always reasonable and necessary. He can be expected to use other transport options where this is reasonable.
6. For these reasons, having regard to Rule 3.1(a) I am satisfied that the Applicant's current approved support will achieve the same outcome as that sought by the Applicant by the funding of additional support at a substantially lower cost. And with respect to Rules 3.1(b) and (f) I am not satisfied that the additional disability support worker hours requested will be of long-term benefit to the Applicant because it will unnecessarily increase his dependence on formal supports, rather than increase his independence.
7. With respect to the paragraph 34(1)(d) criterion, I note that for the purposes of Rules 3.2 and 3.3 I was not taken to any material of the kind described there except the Applicant's own lived experience which I have considered. However, for the reasons I have explained above, despite the Applicant's description of his lived experience, I cannot be satisfied that that additional disability support worker hours will be effective and beneficial for the him because it will increase his dependence on formal supports rather than increase his independence and maintain and foster the development of freely given relationships with other people in the community.
8. With respect to the paragraph 34(1)(d) criterion, I note that the Applicant is an adult who is supported by the NDIS to live independently from his family. His oldest son, his sister and a brother-in-law provide him with support to shower, cut his toenails and maintain his yard respectively. They do so on a normative basis, not because that support is not available to the Applicant under the NDIS. The evidence more broadly is that the Applicant is a member of a large and loving family with whom he is in frequent contact.
9. As I have set out above, the requested support is, in part, put on the basis that the additional hours are necessary to provide active and stand-by assistance to the Applicant during family events because it is unreasonable to expect that family members will assist him with food and beverages or support him to go to the toilet and fix his clothes afterwards if necessary. I have rejected that proposition for the reasons stated above. In the context of this case, that is support that it is reasonable to expect family to provide. Supplanting that normative, freely given support with formal supports is not reasonable or necessary.
10. It remains to consider Rule 7 of the Miscellaneous Provisions Rules. I am satisfied that it has no role to play in the circumstances of this case. There is no issue that the requested support is a NDIS Support that the Applicant is likely to require for his lifetime, and that this is not available under any general system of support.
11. In final summary, the support in dispute is not reasonable and necessary because it does not represent value for money, is not likely to be effective or beneficial for the Applicant, and it does not take account of what it is reasonable to expect families to provide by way of incidental support during family events. To the extent that the support in dispute is justified by reference to a purported cognitive impairment, that impairment does not meet the disability requirements and supports cannot be considered in relation to it.

(1) The decision of the respondent to approve a Statement of Participant Supports dated 14 August 2023, as varied by the decisions of the respondent made on 8 October 2024 and 26 June 2025 to vary and further vary that Statement of Participant Supports, is affirmed.

Mr W Robin, Multicultural Disability Advocacy Association

[1] This proceeding commenced before the Administrative Appeals Tribunal (AAT) in accordance with the power conferred by s 25 of the administrative Appeals Tribunal Act 1975 (Cth). The AAT was abolished and replaced by the 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] The effect of this variation decision was to 'replenish' funding for previously approved supports for an extension period while this case remained before the Tribunal.

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

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

[5] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [60].

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

[7] Forrest and National Disability Insurance Agency (NDIS) [2025] ARTA 1131.

[9] Other than the medical and allied health reports filed with the access request, I base these conclusions principally on the analysis of the Applicant's Health conditions set out in the Sale report at page 231 of the Hearing Bundle and the Williams report at page 186 of the Hearing bundle.

[10] These impairment descriptions are derived from Chapters 1, 2, 6 and 7 of the World Health Organisation (2011) International Classification of Functioning, Disability and Health, Geneva (ICF); see also, World Health Organisation (2002), Towards a Common Language for Disability, Functioning and Health, ICF, Geneva

For a discussion of the relevance of the ICF to NDIS proceedings in providing a standardised language and conceptual framework see my decision in DQKZ and National Disability Insurance Agency [2024p AATA 2276 at [144] - [149].

[11] See my explanation of this in Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607 at [38] - [40].

[12] I do not understand this to be in issue, but to any extent that it is I rely upon the Sale report as to the Applicant's functional capacity in this domain; page 243 of the Hearing Bundle. Mr Williams notes in his report at page 155 of the Hearing Bundle that the Applicant "is finding it increasingly difficult to register verbal information which is affecting his receptive communication" and that "this causes [him] to occasionally require people to repeat themselves to help him process the information and understand what they are saying to him", but I do not understand this to be a contention that he experiences substantially reduced functional capacity for receptive communication.

[13] The scope of the social interaction activity area is determined by reference to the Agency's operational guidelines, supplemented by parts of Chapter 7 of the ICF: Foster and National Disability Insurance Agency (NDIS) [2025] ARTA 718 at [67] and [87 iii].

[14] Sale report at pages 244 - 245 and 256 - 257 of the Hearing Bundle. As part of his assessment, Mr Williams completed a follow-up COGNISTAT Standardised Cognitive Assessment. He reported a severe deficit in the Applicant's ability to immediately recall words and a mild deficit with the immediate recall of a sentence, but otherwise no cognitive deficits were detected.

[15] Letter to the Applicant's General Practitioner, Dr N Usmani, from Dr B Hassan, Consultant Neurologist, dated 21 December 2021. Ms Sale also refers in her report at page 256 of the Hearing Bundle to a letter dated 26 September 2023 written by an unidentified General Practitioner which reports a diagnosis of vascular dementia, but which otherwise states: "patient is otherwise assessed today as being alert and orientated to time, place and person. He is able to recall appointment times and reportedly manage many small tasks on his own including his finances, bills, medical appointments etc".

[16] Page 24 - 26 of the Hearing Bundle.

[17] I take this summary from the information the Applicant provided to Mr Williams and Ms Sale which is included in their reports and from the Applicant's oral evidence on the first day of the hearing.

[18] These details of the request are helpfully set out in the Sale report at page 235 of the Hearing Bundle.

[19] Williams report at pages 190 -196 of the Hearing Bundle.

[20] Sale report at page 234 - 235 of the Hearing Bundle.

[21] Tate, R, L (2017) Manual for the Care and Needs Scale (CANS). Unpublished manuscript, John Walsh Centre for Rehabilitation Research, University of Sydney, Updated version 2.

[23] Williams report at page 189 of the Hearing Bundle.

[24] Sale report at page 251 of the Hearing Bundle.

[25] Williams report at page 181 of the Hearing Bundle. Sale report at page 251 of the Hearing Bundle.

[26] Sale report at page 251 of the Hearing Bundle.

[27] Williams report at page 181 of the Hearing Bundle. Sale report at page 251 of the Hearing Bundle.

[31] Sale report at page 252 of the Hearing Bundle.

[33] Williams report at page 181 of the Hearing Bundle; Sale report at pages 250 - 251 of the Hearing Bundle. Oral evidence of the Applicant, day 1 of the hearing.

[34] Sale report at page 250 of the Hearing Bundle.

[35] Applicant's oral evidence, day 1 of the hearing.

[36] Williams report at page 181 of the Hearing Bundle.

[37] Applicant's oral evidence, day 1 of the Hearing.

[38] Sale report at page 250 of the Hearing Bundle. Applicant's oral evidence day 1 of the hearing.

[39] Williams report at page 181 of the Hearing Bundle. Sale report at page 252 of the Hearing Bundle.

[40] Sale report at page 252 of the Hearing Bundle.

[44] Applicant's oral evidence day 1 of the Hearing.

[45] Applicant's oral evidence, day 1 of the Hearing.

[46] Sale report at page 245 of the Hearing Bundle.

[47] Ibid; Applicant's oral evidence, day 1 of the Hearing.

[48] Ms Sale's report at page 245 of the Hearing Bundle.

[50] Ms Sales report at 249 of the Hearing Bundle.

[54] Ms Sale's report at page 245 of the Hearing Bundle.

[59] Mr Williams at page 182 of the Hearing Bundle.

[60] Applicant's oral evidence, day 1 of the Hearing.

[61] Ibid; see also Mr Williams' report at page 182 of the Hearing Bundle.

[63] Mr Williams at page 182 of the Hearing Bundle.

[64] A grab rail is depicted in a photograph of the Applicant transferring from the toilet in Ms Sale's report at page 248 of the Hearing Bundle.

[66] Mr Williams opines that 'close standby assistance' is required due to limited lower limb strength and weakness (at page 182 of the Hearing Bundle).

[67] Ms Sale at 249 of the Hearing Bundle.

[68] Ibid at page 250 of the Hearing Bundle.

[69] Applicant's oral evidence, day 1 of the Hearing.

[70] These tasks and actions appear in Chapter 6 of the ICF, not in Chapters 4 and 5.

[71] Sale report at 254 of the Hearing Bundle.

[73] Ibid at 252 -253 of the Hearing Bundle.

[74] Sale report at page 253 - 254 of the Hearing Bundle.

[75] Applicant's oral evidence day 1 of the Hearing.

[76] This critique is found in the Applicant's oral evidence, the oral submissions made on his behalf at the hearing and in the Williams report at page 186 - 189 of the Hearing Bundle.

[77] This is encapsulated in the paragraph 34(1)(e) consideration.