2. The Agency says the disputed support is not an NDIS support pursuant to s 34(1)(f).[29] The Agency explains its position as follows:

(a) The disputed support is not reasonable and necessary because it is not an NDIS support under s 10 and therefore does not satisfy s 34(1)(f). > > (b) The disputed support is a 'standard item' pursuant to rule 4(1) of the Transitional Rules as being an item not modified or adapted to address the functional impairments of the Applicant. > > (c) The housing authority, who leases the dwelling in which the Applicant and her family live, is primarily responsible for an item such as the disputed support. > > (d) The disputed support is caught by item 1(i) or (j) of Schedule 2 respectively as a day-to-day living cost falling within 'standard household appliances' or 'standard fixtures or fittings'. The disputed support has not been modified in any way, and it is not disability related. > > (e) The disputed support is 'reasonable adjustment' to make the dwelling accessible for the Applicant, and therefore the funding falls within the scope of the housing authority. Therefore, the disputed support is an NDIS support pursuant to item 19(e) of Schedule 2. > > (f) The Agency is not responsible to supplement shortcomings that may arise in funding by other agencies. > > (g) The Applicant may apply directly to the CEO of the Agency under ss 10(6)(c) and 10(7) for a replacement support determination.

INTERACTION BETWEEN SCHEDULE 1 AND SCHEDULE 2 TO THE TRANSITIONAL RULES

1. The essential question that is the subject of the hearing is whether the supports that are listed in Schedule 2 should be read by reference solely to the support sought by a participant, or whether the support sought should be considered in the context of the disabilities and impairments of the participant.
2. The Explanatory Memorandum to the Transitional Rules provides, in relation to Schedule 2, that 'while the instruments in the list are exhaustive, the below provides a more general outline and explanation of the supports that are not NDIS supports and does not enumerate all of the supports that are captured'. Under 'day-to-day living costs', the Explanatory Memorandum provides examples (not dissimilar to those in Schedule 2) for travel and transport: 'this includes cruises, holiday packages, holiday accommodation, standard vehicles, petrol and personal mobility devices (which are different from the mobility devices required by a participant as a result of their disability)'. Taking an example such as window tinting of a vehicle, this could technically come under the 'umbrella' of the examples in 'travel and transport' (most likely under 'standard vehicles') given the statement in the Explanatory Memorandum that the examples don't enumerate all of the supports that are captured under Schedule 2. As such, there could be an argument that window tinting could fall under item 6(b). However, the conflict that arises in the Explanatory Memorandum is the explanation that 'Column 2 provides an exhaustive list of the supports that are included in that category and are therefore declared not to be NDIS supports'. This is in direct contradiction to the notion explained above that the list in the Explanatory Memorandum is actually not exhaustive. With no mention of window tinting in item 6(b) (or elsewhere in Schedule 2), then it could be said that the support is not a support that falls within the confines of Schedule 2.
3. Given this inconsistency in the Explanatory Memorandum as to the way in which Schedule 2 is to be applied and the beneficial purpose of the statutory scheme, I adopt the following approach:

(a) For a support to be covered by Schedule 2, the support sought must be one of those supports listed in Schedule 2, or the support sought must be clearly covered by the scope of a support that is not an NDIS support. This approach flows from the use of the introductory words - 'The following ...' - in respect of each of the categories of supports in Column 2 of Schedule 2. The Tribunal must be slow to insert or imply a support into the list of not NDIS supports, or expand upon the listed supports to thereby imply additional excluded supports. > > (b) For a support to be covered by Schedule 1, the support sought must either be one of those supports listed in Schedule 1, or the support sought must fall within the category of supports listed in Column 1 of Schedule 1. This approach flows from the use of the words - 'This includes the following ...' - in respect of each of the categories of supports in Schedule 1.

1. This assessment of the merit of a disputed support is a highly personalised and fact‑intensive process since the disability support needs of the Applicant must be assessed within the context of her s 24 disabilities at the time of my determination. In Minister of Immigration and Citizenship v Li, the individualised nature of this type of administrative decision-making process was described by French J as 'decisional freedom' since the decision-maker must assess, within the context of the statutory framework and the evidence related to the specific person, whether a support falls within s 34(1).[30] I must be positively satisfied about each requirement arising from s 34, and therefore I commence with the threshold requirement of s 34(1)(f).[31] That satisfaction must be reasonably and rationally formed, not taking into account irrelevant considerations, and taking into account any relevant considerations, but otherwise it is for the decision maker to form the requisite state of satisfaction on the given material.[32]
2. I note that, for the purposes of assessing the necessary supports of the Applicant under s 34(1)(aa), the time at which the disability requirements need to be met is the time when I determine the SOPS for the Applicant. I must therefore make the assessment on the basis of the disability support needs of the Applicant at the time of my decision. Although the Agency is of the opinion that the disputed support satisfies s 34(1)(aa)-(e), I must be independently satisfied once I have decided whether s 34(1)(f) is met.
3. In Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852 ('Isherwood'), Colvin J's reasoning below provides the basis on how to approach 'reasonable and necessary support':

[25] However, what is significant when it comes to the interpretation of s 36 in the context of the Act as a whole is to bear in mind that the six criteria are concerned with the extent to which it may be appropriate for a reasonable and necessary support to be funded from the NDIS. They are not concerned with defining the scope of the concept 'reasonable and necessary support. > > ... > > [29] Therefore, although it is convenient shorthand to refer to the statutory task as being whether a support is 'reasonable and necessary', that terminology is deficient in exposing the precise nature of the deliberative task that is required to be undertaken. Rather, the task of the CEO is to consider as to each support that might be included in the participant's plan: (a) whether it is a reasonable and necessary support; and (b) whether the CEO is affirmatively satisfied as to each of the six criteria in s 34(1) in respect of the support.

4. Importantly, the criteria in s 34(1) 'are not concerned with defining the scope of the concept 'reasonable and necessary support.'[33] Cumulatively, the disputed support is to satisfy all the criteria of s 34(1)(aa) -(f), which means if I find that any one of the criteria in s 34(1) is not met, there is no need to proceed to apply the other criteria.

1. I find that the disputed support is not an NDIS support. The decision of the Agency not to fund the disputed support should therefore be affirmed.
2. The Tribunal has on review the same powers of the Agency. I must be satisfied that the disputes support satisfies all the criteria in s 34(1)(aa)-(f). If the disputed support does not satisfy any one of the criteria, the support cannot be funded.
3. I explained to the parties that I will commence with the requirement of s 34(1)(f) since it is a threshold question whether the disputed support is not an NDIS support. It is only if I find that the disputed support satisfies s 34(1)(f), that I will consider the evidence in respect of s 34(1)(aa)-(e).
4. In this respect, the evidence of the mother of the Applicant, Dr Anna Gubbay, Dr Shwe Yee Oo and other health professionals in respect of s 34(1)(aa)-(e) is only considered if I am satisfied the disputed support is not excluded as an NDIS support.
5. The disputed support is in my assessment covered by Schedule 2, item 1(e) as being a 'home improvement'. This is a support-specific finding that considers the specifications of the disputed support.
6. There is no definition of what constitutes a home improvement, but in my assessment the installation of an air conditioner is typically what one could expect of a home improvement. This finding is consistent with the communication from the housing authority to the mother of the Applicant that an air conditioner is a home improvement that may be funded by the occupant of the dwelling.[34]
7. There is nothing about the proposed air conditioner that is specifically modified or adapted to the disability needs of the Applicant. I find that the disputed support is a standard item as understood under rule 4 of the Transitional Rules. A 'standard item' is defined in rule 4 as 'an item that is not modified or adapted to address the functional impairments of the participant'. The disputed support is a standard split system air conditioner that is a fixture to many dwellings at the time of construction, or it could be added later as part of a home improvement, but it is not modified or adapted to address the functional impairments of the Applicant.
8. Although air-conditioning is common in Australia, there are many residences without air-conditioning. If an air conditioner is added to a dwelling, I find that the proper characterisation is that it is a home improvement, rather than, for example, a standard household item (Schedule 2, item 1(i)) or a standard fixture (Schedule 2, item 1(j)).
9. The facts before me are distinguishable from those the subject of the decision of Hyde; Chief Executive Officer, National Disability Insurance Agency and (Guidance and Appeals Panel) [2025] ARTA 2597 (5 December 2025) (Hyde). In the Hyde case, the issue also arose as to what is meant by the phrase 'modified or adapted' in s 4 of the Transitional Rules. Although the Tribunal panel could not reach a unanimous decision on how the statutory construction is to be applied to the facts, for the purposes of this proceeding the Panel agreed on the following: (a) a support must be considered in its entirety [34], (b) the characterisation of a support will turn on the facts [31], (c) both words - modified and adapted - have work to do [23, 124], and (d) it is 'important to define the precise support in issue ...' [125] In that case the Tribunal considered the nature of the support sought and found by majority of Senior Member K Bean and Senior Member C Shepherd that the requested support had been adapted to address the functional impairments of the participant. [148] The Senior Members found that:

Looked at as a whole, the system she seeks is not identical to one which would be installed by a person without her impairments. It is different because it contains elements which address her impairments and would be not required by a sighted person, in particular the customised gate operator, sensor beam and battery pack. In our view, it is therefore not 'standard home security' or a 'standard household item'. [148]

10. I find that the split air-conditioning system that is the subject of this proceeding is not proposed to be modified or adapted in any way in response to the disability of the Applicant. This is a standard air conditioner as is found across homes, hotel rooms, and offices in Australia, not having been 'modified or adapted' in any way. The requested support is identical to one which would be installed by a person without the impairments of the Applicant.
11. Although I am not required to follow decisions by the Tribunal, I note the following decisions in which reasoning consistent with my approach was adopted: ATIF and National Disability Insurance Agency (NDIS) [2025] ARTA 821, [248]-[253], and WVGM and Chief Executive Officer of the National Disability Insurance Agency (NDIS) [2025] ARTA 47, [193] (WVGM).
12. I note that in WVGM an air conditioner was regarded as a 'standard household item' pursuant to Schedule 2, item 1(i). I respectfully do not agree that an air conditioner is a standard household item since many houses make do without an air conditioner. In my understanding, an item such as an air conditioner that is common or in general use in Australia is not necessarily the same as an item being a 'standard' item for the purposes of rule 4.
13. In the matter of Butler and National Disability Insurance Agency (NDIS) [2025] ARTA 1579 (28 August 2025) at [146] I referred to an air conditioner as an item for 'home improvements' which is not an NDIS support pursuant to Schedule 2, item 1(e). I prefer to adopt the same categorisation in this matter.
14. I understand the frustration expressed by the mother of the Applicant at what appears to be an inconsistency in the decision-making by the Agency, since by email of 13 February 2025 the Agency had approved two air conditioner units to be installed in the same dwelling, one in the bedroom of the Applicant's brother and one in the living room. The Agency in the email says the funding had been allocated under the 'home modifications' budget.[35] This email seems to reflect the policy of the Agency whereby air-conditioning is described as a Minor Home Modification. In response to this submission, I find as follows:

(a) The reference to a home modifications budget in the email of 13 February 2025 is consistent with my categorisation of the disputed support as being a home improvement. I do not see a difference in substance between modification and improvement in this context. > > (b) As far as the apparent inconsistency of decision-making is concerned, I do not have the benefit of the reasoning of the earlier decision-maker in respect of the brother of the Applicant available to me. I note the decision was made administratively without a hearing. I am, however, required to apply the relevant legislative provisions as I understand it to be without being bound to follow an administrative decision. > > (a) The policy documents of the Agency entitled Assistive Technology, Home Modifications and Consumables Code Guide cannot be interpreted to achieve an outcome that amends or contradicts the statutory requirements under which the approval is sought. I interpret the reference to air-conditioning in this policy document to mean if an air conditioner had been approved and included as part of a home modification [38], then the budget line applies. > > (b) I find that the disputed support is not an NDIS support pursuant to s 34(1)(f) since it is excluded by Schedule 2, item 1(e).

1. The Tribunal affirms the decision under review, pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth).

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member De Villiers

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

[11] McGarrigle v National Disability Insurance Agency [2017] FCA 308 ('McGarrigle').

[13] National Disability Insurance Agency v WRMF [2020] FCAFC 79 ('WRMF').

[14] Minister for Home Affairs v G [2019] FCAFC 79, [18].

[15] [1979] AATA 179 (1979); 2 ALD 634.

[16] [2018] FCA 1229.

[18] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, [635]. Under rule 7 of the Miscellaneous Transitional Rules, a decision-maker must also be satisfied the support is most appropriately funded or provided through the NDIS, and not more appropriately funded or provided through other general systems of service delivery or support services.

[30] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, [143].

[31] See for example Hill and National Disability Insurance Agency [2023] AATA 3626, [85] - [86].