TGJH and National Disability Insurance Agency (NDIS) [2025] ARTA 1013 | Case summary

TGJH and National Disability Insurance Agency (NDIS) [2025] ARTA 1013 | Case summary | Zoe

[27]

In this review, TGJH advised that she sought funding for the following nineteen (19) supports:
- SDA - 2 bedroom, 1 resident apartment with onsite overnight assistance;
- Support worker assistance at a 1:1 ratio for 67 hours per week;
- Occupational Therapy - 102 hours per year;
- Exercise Physiology - 80 hours per year;
- Specialist Physiotherapy - 30 hours per year;
- Incontinence nurse - 15 hours per year;
- Continence items - $2,500.00 per year;
- Podiatry - 8 hours per year;
- Support coordination - 72 hours per year;
- Level 3 transport funding;
- Bidet toilet seat;
- Replacement electric lift recliner chair;
- Manual wheelchair with power assist;
- Over table chair;
- Wheelchair charging station;
- Electric bed;
- Compression stockings;
- vascular compression pump; and an
- Indee floor lift.
Prior to the commencement of the hearing, the Agency advised that it accepted that that the following supports are reasonable and necessary pursuant to section 34(1) of the NDIS Act:
- Bidet toilet seat;
- Replacement electric lift recliner chair;
- Manual wheelchair with power assist; and
- Over table chair.
The issues before the Tribunal can therefore be summarised as follows:
- Firstly, whether TGJH is 'eligible' for SDA under rule 11 of the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth);
- Secondly, on the basis that she is 'eligible', whether SDA is a 'reasonable and necessary support' for TGJH under section 34 of the National Disability Insurance Act 2013 ('NDIS Act');
  - Thirdly, on the basis TGJH is 'eligible' for SDA and it is also a 'reasonable and necessary support' for her, what features of SDA are most appropriate for TGJH under Rule 15 of the SDA Rules: and
  - Fourthly, whether the supports that remain in dispute as referred to in [11] are reasonable and necessary supports pursuant to section 34(1) of the NDIS Act.
On 3 October 2024, and prior to the completion of this review, the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 ('the Amending Act') made a range of 'amendments' to the NDIS Act_._[7] These amendments will apply to this review.

[69]

TGJH has the following diagnoses:
- cerebral palsy - spastic diplegia (CP);
- tachycardia;
- lymphoedema;
- anxiety;
- depression; and
- attention deficit hyperactivity disorder (ADHD).
TGJH lives alone in a single level one bedroom apartment. She rents this apartment through a 'student accommodation' provider and her mother subsides her rent. Her apartment has one bathroom, one living area, one bedroom and a kitchen. Access to her apartment, which is on the twelfth floor, is via a lift.[16]
TGJH considers that her apartment is not accessible and safe in the context of her disability.[17] She also contends that she has inadequate social and community funding, which limits her ability to connect with friends and the community on the weekends or after work.[18]
TGJH's mother resides overseas for approximately 8 - 9 periods months each year.[19] Her mother is 66 years of age and has her own health issues. She provides TGJH with financial and emotional support but is unable to provide her with regular and consistent physical support.
TGJH is estranged from her father. She has an older sister, who is married with two children and resides interstate.
TGJH works part-time in paid employment, generally 2 days per week. This work is generally from home on one day of each week. On the other day, she works at other locations away from her home. In addition, TGJH also undertakes freelance work in film production, advocacy and public speaking for approximately 20 hours per month.
TGJH receives a disability pension.
TGJH attends 1-2 allied health appointments each week.[20] Generally she has fortnightly occupational therapy, weekly exercise physiology and weekly physiotherapy all of which are undertaken in her home. She also has reviews by a dietician every 4-6 weeks and by her general practitioner review when required.[21]
The goals in TGJH's SOPS[22] are as follows:
- Appropriate support for work, both formal skills and informal skills either in the workplace or self-employed, a mix of both, or further study and work-related travel if needed;
- To adequately support my mental health while recovering from the pandemic and overcoming disability-related challenges mentally during this period of change;
- To increase wellbeing and participate in a sport by finding a sport I enjoy and have support to attend, use equipment, and have enough support not to neglect personal hygiene or daily needs after;
- To have the supports I need to go on a holiday independently;
- To locate, maintain, and live successfully and independently by myself in appropriate and accessible, safe, housing. Where I can still get assistance from support workers when needed and ultimately achieve more privacy and independence; and
- To increase my opportunities by gaining age appropriate skills and experiences in home and the community and support for being independent when wanting to do or try new, structured or unstructured recreational activities in the community.
TGJH gave oral evidence at the hearing. I am satisfied that her evidence was honest, truthful and without exaggeration. TGJH's oral evidence can be summarised as follows:
- She does not have an intellectual or cognitive impairment. She does however have some sensory issues due to her ADHD;
- She is unable to mobilise independently;
- She uses forearm crutches to mobilise in her apartment and an electric wheelchair operated by a joystick to mobilise in the community;
- She does not use her wheelchair inside her apartment;
- She currently lives in student accommodation even though she is no longer a student. Recently she was served with an eviction notice. Her attempts to locate other suitable rental disability accommodation have to date been unsuccessful;
- She cannot properly heat up food in the microwave. This is because she must use crutches to ambulate and therefore cannot carry hot foods at the same time. For this reason she has 'given up' drinking tea and coffee;
- When returning from the community she can only park her wheelchair inside her apartment if a support worker is present to open her front door. If she is alone, she cannot open her front door as it is too heavy. In these circumstances, she must leave her wheelchair, unsecured in the hallway outside her apartment and mobilise into her apartment using forearm crutches;
- The right side of her body is more affected by CP. She struggles significantly with her 'balance';
- She is only able to ambulate using her crutches a distance of approximately 20 meters;
- She can access trains and trams at disability stations provided they have disability access. She is also able to access wheelchair accessible taxis;
- She accesses the community for work or social activities. She attends an annual festival that caters for people with disability needs; She also plays cards on the weekend at a card game centre;
- To get in and out of bed she uses combination of a step with a grab rail and her forearm crutches;
- She is able get in and out of her shower recess however she has a significant history of falls due to water on the tiles and balance issues;
- She uses a shower seat to shower with a long-handled sponge to wash the lower parts of her body. She washes her hair 2 or three time a week with the assistance of her support worker;
- She currently showers daily. She struggles with continence and would prefer to shower twice a day stating that an evening shower assists her to manage her incontinence during the day and post toilet hygiene;
- She regularly requires urgent toileting. She is unable to independently get to a toilet 'quickly'. Historically she has had many accidents. Understandably, this is a source of embarrassment and significant concern;
- When accessing the community, she will starve and dehydrate herself to avoid having the need to use public toilet facilities;

[74]

She is able to communicate her needs, use the internet, email and use communication mediums to work from home;
- She has a few friends with whom she has regular contact;
- She accesses the community generally every two weeks;
- She has completed an arts degree, majoring in film production;
- She is employed part-time and does other freelance work;
- She mobilises in her home using bilateral forearm crutches. Her mobility using her forearm crutches is limited to 20-30 metres;
- She accesses the community in a wheelchair;
- She can access items between her hip level and head, but has difficulty with balance when accessing items below her waist;
- She has a history of falls. On occasions an ambulance has been called;
- Her bed is bolted to the wall. She can complete bed transfers with a modified technique using a platform step and handrail next to her bed;
- She can complete transfers on and off her electric recliner chair, wheelchair and shower chair using forearm crutches;
- She sits on a stool to undertake her own grooming.
- To complete a toilet transfer she uses forearm crutches and a L-shaped grab rail;
- Her bathroom is fully accessible and is supportive of her disability needs. It has an accessible hobless shower recess and meets AD 1428 accessibility standards;
- She is able to access her shower independently, however showering can take up to 45 minutes;
- She is also able to independently dress herself however this can also take her up to 45 minutes to complete;
- She uses a shoehorn and sock aid to put on socks and shoes;
- She has limited capacity for carrying and lifting items due to her impaired balance and her reliance on forearm crutches;
- She is able to use taxi and ubers;
- She experiences incontinence and would like an assessment by an incontinence nurse so as to provide recommendations. To manage her incontinence, she showers after toileting and wears incontinence underwear;
- She has difficulty with complex meal preparation tasks due to reduced balance, standing tolerance and strength in her upper limbs;
- She can complete small shopping tasks. Larger shopping is performed by support workers with TGJH providing a shopping list;
- She requires assistance with heavy cleaning tasks. She is however able to undertake light cleaning tasks such as wiping a bench, minor spot cleaning, rinsing dishes or cutlery;
- She depends on her support workers to manage all laundry, including her clothes and linen;
- She has the capacity to plan, problem-solve, and make decisions. She organises her own medical and therapy appointments, has her own bank account, manages her own finances, is able to budget and manage her money and pay her own mobile phone bill.

[77]

Ms Bruyen is also an occupational therapist. She assessed TGJH on 27 November 2024. Ms Bruyen provided several reports to the Tribunal and oral evidence at the hearing. I am satisfied that Ms Bruyen's evidence was honest and truthful and in accordance with her obligations as an expert witness.
In her most recent report, Ms Bruyen referred to the following:
- TGJH is able to walk using two forearm crutches for 20-30 meters inside her apartment or at indoor venues. She is also able to use a powered wheelchair for longer distances, including settings outside the home;
- TGJH experiences significant lymphoedema. This results in increased weight in her legs which decreases her functional capacity for putting on her shoes and dressing;
- She has reduced balance, postural control and a history of falls;
- She is unable to stand unaided without support of one elbow/forearm crutch;
- She is unable to reach below her knee or above her head;
- She has difficulties transferring from sitting to standing, particularly from low to high surfaces;
- She has episodes of urinary incontinence and diarrhea. She also has difficulties managing perineal care due to problems with reaching and wiping;
- She is able to manages transfers in and out of her stepless shower. She takes additional time to shower and utilises a shower chair. She is at risk of falls on slippery wet floors in her bathroom;
- She prefers to shower when her support workers are present. Support workers will mop the bathroom floor after showering and also assist with setting up her clothing;
- She is able to brush her own teeth but is unable to cut her own toenails;
- She manages dressing but with additional time. She has difficulties dressing her lower limbs (including donning shoes) also donning/doffing her bra;
- She has difficulties maintaining a healthy diet due to difficulties with physically setting up food;
- She has reduced access to the community due to her physical impairments. She experiences social isolation due to fatigue, physical impairments and continence issues.
In conducting a functional assessment, Mr Bruyen also referred to the following;
- TGJH uses a platform step with handrails to get in and out of bed;
- She finds it difficult to open the front door to her apartment as it is heavy;
- She finds it difficult to use scissors, a key in a door, turn doorknobs, open soft drink bottles and brush the back of her hair;
- She is able to use public transport, including transferring in and out of a taxi, maxi taxi, trains and accessible trams;
- She is able to do light dusting/wiping tasks within her reach, but does not have the physical capacity for vacuuming, mopping, scrubbing or sweeping;
- Is unable to change bed linen or do laundry;
- She is able to shop for small light weight groceries and relies on pre- prepared meals;
- She would benefit from support coordination to set up a roster of her supports;
- She is independent with her finances, making appointments, paying bills, planning and making decisions.
Ms Bruyen recommended SDA in a fully accessible, single occupancy, 2-bedroom dwelling. She explained that SDA would provide TGJH with larger circulation spaces, an accessible kitchen, accessible storage and additional bedroom/space. SDA would also improve her independence by:
- Enabling provision of an electronic adjustable bed to improve transfers;
- Enabling items to be more easily placed in the bathroom, kitchen, pantry and linen cupboard within reach at around waist height;
- Enabling more room for storage of larger AT items and clutter, reducing risk of trips and falls over items and allowing more room to use AT such as her Vela Tango Chair.
In addition to SDA, Ms Bruyen also made the following recommendations;
- Wheelchair Charging Station (current residence) - estimated cost $800;
- Bidet Toilet Seat and installation (future residence) - estimated cost $1,500 to $2,000;
- Replacement Recliner chair- estimated cost $2,500;
- Vascular Compression Pump;
- Compression Stockings;
- Electric Height Adjustable Bed and Mattress King Single (future residence) - estimated cost $6,000;
- Exercise Physiology or Physiotherapy for fitness and conditioning;
- Specialist Lymphoedema Support to prevent worsening of lymphoedema;
- A vascular compression pump at home, to reduce need for regular weekly attendance and lymphoedema;
- Occupational therapy trials for mobility devices and correct wheelchair prescription;
- Occupational therapy training for support workers to encourage independence and participation during daily activities;
- Level 3 transport assistance for shopping, medical appointments, therapy appointments, workplace visits when unable to use public transport;
- Half price taxi vouchers from her General Practitioner;
- Additional Social, Economic and Community Participation Support;
- Daily core supports, morning and evening to assist with wearing vascular compression garments due to reduced capacity to reach to floor/toes and a Vascular Compression Pump;
- Incontinence Nurse Assessment to assist with bowel and urine continence and suitable continence items including bedding;
- A suitable Bidet solution and replacement of low cost portable bidet;
- An over recliner table to assist with eating in her recliner;
- 67 hours of support worker assistance;
- A further allowance for support to assist with toileting and self-care when in the community;
- Concierge or on-call assistance overnight to assist with mobility from her bed to the toilet and also assistance with shower access in the event of overnight incontinence;
- Occupational therapy to assist with exploring personal hygiene strategies and independence in self-care tasks;
- Regular podiatry;
- Dietician support;
- Physiotherapy;
- Mobile kitchen trolley; and
- Cleaning and domestic assistance.
I will refer subsequently to Ms Bruyen's oral evidence.

[99]

The SDA operational guidelines describe self-care as 'washing yourself, going to the toilet, getting dressed, eating, drinking, talking and taking medication'.
TGJH is incontinent on a daily basis despite her best efforts.
During waking hours TGJH regularly requires urgent toileting. She is regularly unable to independently get to a toilet 'quickly' and in time to avoid incontinence. Historically, she has had many accidents. Understandably, this is a source of embarrassment and significant concern to her.
When accessing the community, TGJH will starve and dehydrate herself to avoid having the need to use public toilet facilities.
Even when she is at home, it takes TGJH a long time to get to the toilet. Often, she will soil herself before she is able to reach the toilet and remove her clothing. For this reason, when alone in her apartment, she has resorted to not wearing clothes. This is so she can access the toilet, without the difficulty of having to remove clothing.
TGJH manage her incontinence by showering. To best manage her incontinence, she requires a shower at the least at the beginning and end of each day.
Showering, which necessarily involves dressing, undressing and getting in and out of the bathroom and the shower recess is an extremely difficult and time-consuming task for TGJH. Despite assistance from her carer, this process takes a significant amount of time.
TGJH has a history of falls, including in the shower and in the presence of a support worker. When she falls, and is unassisted, she must then, if she is able to, 'drag' herself along the floor out of the bathroom to request help. This takes a considerable amount of time. At times, she has waited many hours for assistance, lying on the floor, after a fall.
Understandably, TGJH is reluctant to shower without assistance. At the end of each day TGJH will remain in her soiled clothes until assistance can be provided when her support worker attends with her the next morning. If she soils herself further during the night, which often occurs, she is further impacted. This is an unacceptable circumstance.
TGJH struggles greatly with maintaining her balance. When in the shower, TGJH can only shower the upper part of her body. This is because she cannot reach down and also because of balance issues. Whilst she can to some extent shampoo her hair, she requires assistance from her support workers to remove the shampoo from the back of her head.
TGJH dresses her upper body but with increased time. She is unable to independently put on compressions stockings.
On the basis TGJH must mobilise with two forearm crutches she cannot carry items at the same time. Whilst using her crutches, she cannot transport hot food or drinks to a chair or table for consumption without risk. She, therefore, does not properly heat up food for her meals. For this reason, she has also 'given up drinking coffee'.
She uses metal mugs and plastic plates for her food and drink. This is on the basis that if dropped they will not break.
She takes a number of medications which are managed through a dosette box. Her support worker assists with stocking her dosette box.
She is unable to inspect her feet for injury. Due to her CP, her gait is affected, and her toes and feet 'drag' on the floor when she walks. She is also unable to cut her toenails.
She is unable to do her own laundry. This includes her clothes which are regularly soiled due to spills. Also, her bedsheets are soiled due to incontinence on most days.

[139]

TGJH is currently funded for 17 hours per week of support worker assistance.
TGJH seeks 67 hours per week of support worker assistance. She relies on the report of Ms Bruyen, which recommends 67 hours per week, comprised of the following weekly components:
- 28 hours for personal activities (mornings and evenings for personal care for showering, dressing, applying compression garments);
- 2 hours for domestic cleaning (domestic cleaning, mopping, vacuuming, dusting);
- 6 hours for shopping, meal preparation assistance (including shopping lists; meal planning, preparation for lunches and bulk cooking sessions for meals)
- 7 hours for support needs (laundry, bed making tidying, removing clutter, set up for dressing and activities);
- 8 hours for social and economic participation supports (personal care supports in the community, assist with mobility and access, assist with self-care(adjusting clothing and toilet assistance), transport, applied including nights and on weekends;
- 16 hours for maintaining and keeping a job.[31]
TGJH acknowledges that Ms Bruyen's recommendation of 16 hours per week to assist her with maintaining and keeping a job could include a level of 'multitasking' by her support worker with other tasks such as cleaning and laundry.
In her oral evidence, Ms Bruyen was asked to reconsider her recommendation in light of TGJH being funded for SDA accommodation which would include unplanned onsite concierge services in the vicinity of 2.5 hours per day. Ms Bruyen's oral evidence can be summarised as follows:
- Her recommendation of 28 hours for daily personal activities equated to 2 hours each morning and 2 hours each evening. This recommendation was made, in part, on the basis that the award rates for support workers required a minimum of two hours per service.
- In the context of TGJH living in SDA, with onsite concierge service and also receiving physiotherapy for her lymphedema and continence supports, her estimation for daily personal activities could be reduced to 2 hours per day. This would equate to an allowance of 14 hours per weeks for daily personal activities.
- In relation to her estimation of 16 hours for maintaining and keeping a job and in the context of TGJH working from home one day a week, she agreed there was a potential for an overlap of supports. This was such that other meaningful tasks including laundry, cleaning, meal preparation and daily personal activities could also be undertaken by a support worker on the day that TGJH worked from home.
- She also agreed that in an SDA environment, TGJH would be able to do online grocery shopping. This was because with concierge assistance, her groceries would be 'carried' into her apartment with assistance putting these groceries away. Also, that in SDA, TGJH would have a fully accessible kitchen with a modified bench space which would improve her ability to independently prepare food and heat up prepared food.
- In conclusion, Ms Bruyen revised her recommendation to 53 hours of support workers assistance for TGJH as a reasonable and necessary support.
In his oral evidence, Mr Mate was also to reconsider his recommendation of 18-22 hours of support worker assistance in light of TGJH being funded for SDA accommodation with concierge services. Ms Mate's oral evidence can be summarised as follows;
- His recommendation only included an allowance for showering on the 2 days when TGJH was working;
- Hi recommendation did not include support with showering on the days TGJH did not work;
- That considering TGJH wished to shower in the morning and the evening and also considering the likely time for the task of showering, drying, dressing, undressing and compression stockings, an allowance of 14 hours per week was reasonable.
Ms Katherine Inglis, occupational therapist provided a report on 12 July 2023.[32] Summarised Ms Inglis' opinion is as follows:
- The flooring in the bathroom of TGJH's apartment is slippery. Historically TGJH had fallen and hit her head after showering;
- CP negatively impacts TGJH's balance and this triggers her falling; and
- Showering is TGJH's most difficult personal care task.
Having heard the evidence, the Agency submits that 53 hours of support worker assistance is a reasonable and necessary support for TGJH. The Agency's submission is accepted on the basis of the following;
- The opinion and recommendation of Ms Bruyen was persuasive;
- I am satisfied that TGJH requires assistance from a support worker with showering due to her mobility and balancing difficulties, and also to minimise her risk of falls;
- I also accept that TGJH must shower twice a day to manage her incontinence and this is fundamental to maintaining her dignity;
- Mr Mate's recommendation in his report provided an insufficient allowance for the support TGJH requires on a daily basis for her self-care which includes showering and the wearing of compression stockings.
- Mr Mate's appropriate reconsideration of his recommendation on the basis of further information in respect of TGJH reinforced the opinion of Ms Bruyen.

[143]

Ms Bruyen explained that with a transition to SDA, training and support would be needed in respect of many matters including the various assisted technologies such as the bidet, the electric bed, home automation, wheelchair charging station and other mobility devices. She also identified the need for support in the context of TGJH living in a new geographical location and the associated issues in learning how to access a new community from her new home.
Ms Bruyen explained her recommendation not only included training, but it also included report writing, a wheelchair prescription, liaising with suppliers and obtaining quotes for equipment and the supply of products such as continence items. It also included an initial assessment of the SDA chosen for TGJH in regard to any further assistive requirements that needed to be addressed. She stated, 'a transition to SDA means that often other items might be required or considered for people' and 'it would be my opinion that you would need an increased support for a period of transition and then that need would drop off or change should there be no other equipment required'.
Ms Bruyen explained her recommendation of 102 hours was comprised of the following components:
- 72 hours from an occupational therapist; and
- 30 hours of complimentary services from an allied health assistant.
Ms Bruyen explained that an allied health assistant could provide services at a lower cost than occupational therapist. These services included connecting with suppliers, seeking quotes, liaising with the delivery of assistive technology, setting up and preparing training materials and providing support as directed by the occupational therapist.
Having heard the evidence, the Agency submits that Ms Bruyen's recommendation is a reasonable and necessary support for TGJH. I consider that the Agency's concession is reasonable and proper. I accept that TGJH will require an intensive level of occupational therapy supports with her transition to the SDA. This support relates not only to a new living environment but also in relation to a new geographical location.

TGJH and National Disability Insurance Agency (NDIS) [2025] ARTA 1013 (5 June 2025)

At a glance

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Judgment (185 paragraphs)

TGJH and National Disability Insurance Agency (NDIS) [2025] ARTA 1013 (5 June 2025)

Legislation Cited (11)

Cases Cited (1)